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Gordillo v. University of Colorado Board of Regents

United States District Court, D. Colorado

April 2, 2019



          Kathleen M. Tafoya United States Magistrate Judge.

         This matter is before the court on “Defendant the University of Colorado Board of Regents' Motion for Summary Judgment” [Doc. No. 22] (“Mot.”) filed August 31, 2018. Plaintiff's Response [Doc. No. 24] (“Resp.”) was filed on September 21, 2018, and Defendant filed its Reply [Doc. No. 26] on October 5, 2018.

         Plaintiff alleges that her termination by the Defendant in September 2015 interfered with her rights under the Family Medical Leave Act (“FMLA”) and was undertaken in retaliation for exercising her rights under the FMLA. Defendant asserts that Ms. Gordillo's termination came about because Plaintiff refused a directive from her employer that she change her duty location and was unrelated to a request she made to receive information about her entitlement to take family medical leave (“FLM”) at a future time. Defendant the University of Colorado Board of Regents (“University”) seeks judgment as a matter of law on both of Plaintiff's claims.[1]


         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

         When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. The following axioms have a bearing on summary judgment disposition-i.e., (1) that “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); (2) “the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue” id. at 256; and (3) “the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor.” Id. 257.

         These axioms are not token in nature. Instead, they serve an important purpose of preserving a litigant's Seventh Amendment right to jury trial. Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014) (“It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.”).


         1. The Laboratory for Atmospheric and Space Physics (“LASP”) is a University of Colorado research institute focused on space exploration. This means that LASP scientists define research objectives of space missions, with researchers determining the technology needed to collect the data and answer the scientific questions posed by those space missions. LASP engineers then design and manufacture the necessary spacecraft and instruments. Once spacecraft is launched, LASP manages the day-to-day operations of the mission and delivers scientific data that has been gathered to other scientists, mission sponsors, and to the public. (Mot., Declaration of Randy Siders (“Siders Decl.”) [Doc. No. 22-1] ¶ 2.)

         2. LASP operates out of multiple buildings on the Boulder campus, two of which are the LASP Space and Technology Building (“LSTB”), which houses labs, production facilities, and test equipment, along with the high-level computing equipment necessary for mission operations control, and the Space Science Center (“SPSC”), which is primarily an office space, with areas for public presentations. (Siders Decl. ¶ 3.)

         3. Both buildings were damaged by a flood in September 2013, with the SPSC sustaining more damage than the LSTB. The flood damage was remediated, and tests run from December 2013 through August 2014 confirmed “normal/safe” levels of mold. (Siders Decl. ¶ 3.)

         4. The SPSC was tested according to the Industry Standard, which means there may be a baseline amount of mold. The environmental health firm who did the initial analysis on SPSC recommends going above and beyond the industry standard testing. (Resp., Plaintiff Fact (“PF”) 16; Ex. 7, Video Deposition of Randy Scott Siders, June 22, 2018 (“Siders Dep. Ex.”) at pp. 55:8-56:3; Ex. 8, Deposition of Eric Dorninger, July 2, 2018 (“Dorninger Dep. Ex.”) at pp. 69:1-25, 71:7-17; Ex. 3 at ¶ 621.)

         5. In August 2015, it was determined that CU's Risk Management and Legal should be alerted to the need for ongoing testing, and Mr. Siders requested an update on the mold remediation on September 10, 2015. (Resp, PF 19, Ex. 3 at ¶ 621.)

         6. The LSTB and the SPSC each have two receptionists. In addition to their receptionist duties, each of the four receptionists is also responsible for a more specialized form of administrative support. (Mot., Video Deposition of Randy Scott Siders, June 22, 2018 (“Siders Dep.”) [Doc. No. 22-2] at 22:5-7; 24:8-22.)

         7. Because the LSTB houses the technology and equipment used to control spacecraft, some LSTB operations are subject to the International Traffic in Arms Regulations (“ITAR”). ITAR requires stringent control of physical access to the LSTB, particularly as it relates to foreign nationals. This includes checking in and signing out all visitors during business hours. After hours, access is by electronic badge. To ensure this access control, two receptionists sit at the LSTB front desk. If both receptionists are going to be unavailable for any length of time, another LASP employee must cover the front desk during the other's absence. (Siders Decl. ¶ 4.)

         8. Work in the SPSC is not subject to ITAR. Visitors to the SPSC are not signed in or escorted. Two receptionists work in the SPSC, but they are not required to remain at the front desk. (Siders Decl. ¶ 5.)

         9. LASP hired Plaintiff in the summer of 2014. (Compl. ¶ 7.) She was one of the receptionists stationed at the LSTB, and her supervisor was Vince Guarino. (Compl. ¶ 11.)

         10. Plaintiff's other administrative responsibility was event coordination and support. (Deposition of Debbie Gordillo, June 27, 2018, (“Gordillo Dep.”) [Doc. No. 22-5] at 7:1-3.) Before coming to LASP, Plaintiff had worked as an event coordinator and enjoyed that type of work. (Gordillo Dep. 7:4-10.) Some of Plaintiff's event coordination and support duties were carried out onsite at events, away from the LSTB reception desk. (Mot., Defendant Undisputed Fact (“DF”) 8.)

         11. In April 2015, LASP was experiencing gaps in coverage of the LSTB's front desk. (Mot., Ex. 2.) This was due in part to Plaintiff's responsibilities coordinating events. (Siders Decl. ¶ 6.)[2]

         12. In May 2015, LASP entered into a multi-year partnership with the United Arab Emirates to study the atmosphere of Mars, which caused Mr. Siders and others to anticipate an increase in the number of events and visitors to the LASP facilities. (Siders Decl. ¶ 7.)

         13. On May 14, 2015, Mr. Siders consulted with Mr. Guarino via e-mail about whether the amount of work would support a new, full-time event support position. (Mot., Ex. 1, [Doc. No. 22-7].) Mr. Guarino acknowledged that a full-time position would allow the LSTB front desk staff to “focus more effectively on their desk duties, especially building access, ” but questioned whether they could “justify[] a full-time person for the foreseeable future in light of the event stream and the costs associated with hiring and maintaining an additional FTE.” (Id.)

         14. Mr. Siders shared Mr. Guarino's concern about whether there were enough events for the foreseeable future to justify adding a full-time event support position and, in late June 2015, decided not to budget for that position. (Mot., Siders Dep. at 100:15-17.)

         15. On July 22, 2015, Mr. Siders convened a meeting with Mr. Guarino and the front desk staff to discuss, among other issues, what he perceived to be “[c]ontinual gaps in coverage at the desk.” He noted that there “[n]eeds to be a continual presence in the general area of the front-most desk near the door [at LSTB] in order to control and facilitate access.” (Mot, Agenda/Topics, Ex. 3 [Doc. No. 22-9].)

         16. Through July and August 2015, Mr. Siders and Mr. Guarino continued to discuss options for addressing the anticipated uptick in visitors that would occur once the academic year started. (Siders Dep. 100:20-23.)

         17. Ms. Gordillo's teenaged daughter, Nicolette, was diagnosed with Chronic Inflammatory Response Syndrome (CIRS autoimmune) on August 4, 2015. (Resp., Siders Dep. Ex. 31:9-12; Ex. 8, Dorninger Dep. Ex. pp 38:11-13; Ex. 9, Deposition of Nicolette Gordillo-LaRivere Excerpts, (“Nicolette Dep.”) at p. 5:22-25; Ex. 3 at Gordillo589-94.) CIRS is triggered by biotoxins, which include water-damaged microtoxin molds and fragments. Biotoxins can affect anyone, but individuals with genetic predispositions are more likely to get sick. (Resp., Ex. 8, Dorninger Dep. Ex. pp. 18:17-20:7, 22:8-15.)

         18. Ms. Gordillo was worried about her own health although she hadn't been tested for any form of allergy or reaction to biotoxins. (Resp., Ex. 4, Deposition of Debbie Gordillo Excerpts (“Gordillo Dep. Ex.”) at pp. 73:15-75:11, 119:23-121:2.)

         19. An unrelated employee, Cheryl Haugen submitted her resignation on July 21, 2015, claiming that mold in SPSC was making her sick. (Resp., Ex. 3 at ¶ 425.)

         20. In late August 2015, Ms. Gordillo asked Mr. Guarino how to obtain information about FMLA should she need extra time off work to care for Nicolette should Ms. Gordillo exhaust her paid sick leave. Mr. Guarino referred her to Brooke Motz in the LASP Human Resources Department. (Resp., Ex. 5, Deposition of Vince Carmen Garino, July 13, 2018 (“Guarino Dep. Ex.”) at p. 40:17-23; Ex. 3 at ¶ 7.) In an email dated August 26, 2015, Ms. Motz told Ms. Gordillo she needed to talk to Ms. DeAntoni in the University's main HR Department about her FML request. (Resp., Ex. 3 at ¶ 7.)

         21. Ms. Motz directly reported to Susan Rogers. (Resp., Ex. 6, Video Deposition of Susan Roberts Excerpts (“Rogers Dep. Ex.”) at pp. 10:11-11:12.)

         22. Tracee DeAntoni was the FMLA Specialist on the Employee Relations team, and the person that LASP employees were supposed to go to with FMLA questions. (Resp., Ex. 2, Video Deposition of Tracee DeAntoni Excerpts, June 15, 2018 (“DeAntoni Dep. Ex.”) at p. 11:1-18.) On August 26, 2015, Ms. DeAntoni received an email communication from Ms. Gordillo indicating she had questions about health insurance and the availability of FML for Ms. Gordillo to take time off work to care for her daughter. (Resp., Ex. 3, Key Documents at ¶ 7, CU29-31, CU0999; Ex. 2, DeAntoni Dep. Ex. pp. 30:9-32:25.)

         23. Ms. Gordillo was eligible for FML based on her employment history with CU. (Resp, Ex. 2, DeAntoni Dep. Ex. pp. 13:15-14:15; Ex. 3 at ¶ 148-149.)

         24. Labor Day, a national holiday, was on September 7, 2015. Ms. Gordillo first met with Ms. DeAntoni about FML on Thursday, September 3, 2015 and received paperwork to apply for FML on Wednesday, September 9, 2015, the third business day following September 3, 2015. (Compl. ¶¶ 19, 26, 33; Resp, Ex. 3 at ¶ 8-16, CU28-31, CU48-51, CU148-149, CU416, CU0999.) On September 9, 2015, when she received the FML paperwork, Ms. Gordillo was told that she needed to submit medical documentation supporting her request for intermittent FML to care for Nicolette by September 24, 2015. (Resp., Ex. 4, Gordillo Dep. Ex. p. 130:1-12; Ex. 3 at ¶ 148-149.)

         25. During the processing of Ms. Gordillo's inquiry about FML, Ms. DeAntoni spoke with her Human Resources team, the ER team, two or three other consultants, and her manager about Ms. Gordillo's request. (Resp., Ex. 2, DeAntoni Dep. Ex. pp. 41:18-42:15.)

         26. On Friday, September 4, 2015, Mr. Guarino emailed Mr. Siders and told Mr. Siders, “I am going to switch Debra [Sparn] to LSTB and Debbie [Gordillo] to SPSC effective September 14, 2015.” (Mot., Ex. 4) He further stated, “I will inform the two of them of this change this coming Tuesday.” (Id.)

         27. Mr. Guarino noted that LASP often had the SPSC receptionist cover for Plaintiff when her event coordinating duties took her away from the LSTB front desk. Mr. Guarino stated that moving Plaintiff to the SPSC would allow her “greater flexibility to respond to [e]vent needs” because the front-desk requirements at the SPSC are “less restrictive.” (Mot., Ex. 4.)

         28. On the morning of Tuesday, September 8, 2015, following the Monday holiday, at 11:30 a.m., Mr. Guarino told Plaintiff and the SPSC receptionist that their ...

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