United States District Court, D. Colorado
ORDER GRANTING SUMMARY JUDGMENT
D. Domenico United States District Judge.
who has a history of documented mental health conditions,
worked as a therapist for Defendant, which operates
residential child care facilities that provide therapy to
at-risk teens. Defendant terminated Plaintiff after she
experienced suicidal ideations at work, and checked herself
into a hospital. Plaintiff alleges, among other harms, that
Defendant interfered with her entitlement to medical leave in
violation of the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601, et seq., and discriminated
against and failed to accommodate her in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq. Defendants have moved for summary
judgment on all claims, and the matter is fully briefed.
(Docs. 67, 79, 84.) For the following reasons, the Court
GRANTS the motion.
UNDISPUTED MATERIAL FACTS
Third Way Center, Inc. (Third Way) operates licensed
residential child care facilities, including Bannock House.
Colorado statute and regulations prohibit such facilities
from hiring or continuing to employ any person whose physical
or mental health or emotional or psychological makeup impairs
her ability to properly protect the health and safety, or who
could endanger the physical or psychological well-being, of
the children in their care.
Erin Melville has a long history of suicidal ideation and
severe mental illness, including major depressive disorder
recurrent episode (chronic), personality disorder,
disorganized thinking, auditory hallucinations, and
dissociative identity disorder, which includes the following
multiple personalities: (1) Erin (herself); (2) Florence; (3)
Caroline; (4) Emma; and (5) Snow. She has attempted suicide
at least three times, including one gun-related attempt in
disclosing any of her conditions or suicide attempts in her
professional license or job applications, Ms. Melville became
a provisional licensed professional counselor in Colorado,
began working as a mental health counselor at Bannock House
in December 2015. Third Way mental health counselors provide
crisis intervention and counseling, under the supervision of
therapists, to the teens in the social environment at the
house. Third Way requires its mental health workers to be
either licensed or working toward being licensed by the
Colorado Department of Regulatory Agencies. In hiring Ms.
Melville, Third Way believed her qualified to obtain licenses
from the State Board of Licensed Professional Counselor
September 2016, Ms. Melville told a supervisor, Brittany
Martinez, about one of her prior suicide attempts and some
details of her mental health history. At the supervisor's
suggestion, she shared some of that information with other
coworkers at a staff meeting a few weeks later. Defendant
Elizabeth Maple, Ms. Melville's immediate supervisor,
later discussed these mental health issues with her and the
impact they could have on her work with clients at Third Way.
Ms. Maple also discussed them with another doctor. At that
time, Third Way did not take any disciplinary or other action
because Ms. Melville was meeting her job requirements and it
did not then have any reason to believe she would be unable
to in the future. On January 30, 2017, Third Way promoted Ms.
Melville to therapist.
the summer of 2017, Ms. Melville told Ms. Maple that she was
experiencing an increase in symptoms, including anxiety, and
was seeking treatment. On August 23, 2017, Ms. Melville
experienced suicidal ideations at work. She told her
co-workers that she was feeling unsafe and had decided to end
her life that night. She then she voluntarily presented at
the Parker Adventist Hospital emergency department and was
not released until the following morning.
the incident, Ms. Melville requested, and was granted, FMLA
leave. On September 7, Dr. John Carlson, M.D., completed an
FMLA healthcare provider certification indicating Ms.
Melville's condition rendered her unable to perform
essential job functions of carrying out individual, group,
and family therapies and that she would be incapacitated
until at least September 21. It was also “medically
necessary” for “her to attend follow-up treatment
appointments” for up to six hours per day. Dr. Carlson
referred Ms. Melville for a two-week partial hospitalization
plan and six-week intensive outpatient program. She only attended
these programs a handful of times and did not complete either
September 8, Ms. Melville contacted Third Way seeking to
immediately return to work. On September 11, she met with Ms.
Maple and Defendant Renee Johnson, another of her
supervisors, at a coffee shop. She told them she had ceased
treatments, and that she would have to deal with periodic
suicidal ideations for the rest of her life. Ms. Melville
expressed financial anxiety due to being on unpaid FMLA
leave, and Ms. Johnson stated that she could find another
job-such as working as a waitress-or quit and apply for
unemployment benefits and Third Way would not contest her
application. Ms. Maple and Ms. Johnson advised her that she
wouldn't be able to come back to work until she received
clearance from Dr. Carlson and her mental health providers.
Despite making repeated requests for a return-to-work letter
from several providers, every provider refused her request,
and Ms. Melville never received clearance to return to work
or otherwise showed that she was psychologically unimpaired.
on Ms. Johnson's suggestions concerning unemployment
benefits, Ms. Melville believed she had been fired. And in
fact, Third Way paperwork dated September 14 reflects
“involuntary” “termination” for being
“unable to effectively work with [Third Way] kids at
this time.” On September 15, Third Way's executive
director left her a message encouraging her to finish her
FMLA leave and complete treatment until Dr. Carlson was
satisfied she could return to Third Way. Ms. Melville did not
call back and, on September 17, she applied for unemployment
benefits through the Colorado Department of Labor.
31, 2018, Ms. Melville entered into an agreement with the
Board, in which she agreed not to practice as a counselor
during the pendency of the Board's investigations into
her mental health and alleged misrepresentations on her
applications. On April 11, 2019, the Colorado Attorney
General and the Board took disciplinary action against her,
charging her with failing to notify the Board of a mental
illness or condition affecting her ability to treat clients
with reasonable skill and safety, failing to act within
limitations created by mental illness, and fraud in securing
her license in violation of Colo. Rev. Stat. §§
12-43-222. That case is set for a hearing in January 2020.
April 13, 2018, Ms. Melville sued Defendants in the Colorado
District Court for Denver County. She asserted claims under
the FMLA, the ADA, and several state-law tort theories. On
May 18, 2018, Defendants removed the action here, invoking
the Court's original and supplemental jurisdiction
pursuant to 28 U.S.C. §§ 1367(a) and 1441(a). On
May 22, 2019, Defendants filed moved for summary judgment on
purpose of a summary judgment motion is to assess whether
trial is necessary. White v. York Int'l Corp.,
45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is
appropriate if there is no genuine dispute of material fact
and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Adamson v. Multi Cmty. Diversified
Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A
fact is material if it could affect the outcome of the suit
under governing law; a dispute of fact is genuine if a
rational jury could find for the nonmoving party on the
evidence presented. Id. If a reasonable juror could
not return a verdict for the nonmoving party, summary
judgment is proper and there is no need for a trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
motion for summary judgment, the moving party bears the
burden of demonstrating no genuine issue of material fact
exists. Adamson, 514 F.3d at 1145. Where, as here,
the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy this burden by
demonstrating a lack of evidence for an essential element of
the non-movant's claim. Id. That is, if a
defendant shows entitlement to summary judgment, it becomes a
plaintiff's “burden as the non-movant to set forth
specific facts demonstrating that there was a genuine issue
for trial as to those material matters for which she carried
the burden of proof.” Reynolds v. Sch. Dist. No. 1,
Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995).
deciding whether the moving party has carried its burden,
courts do not weigh the evidence and instead must view it and
draw all reasonable inferences from it in the light most
favorable to the non-moving party. Adamson, 514 F.3d
at 1145. But neither unsupported conclusory allegations nor
mere scintillas of evidence are sufficient to create a
genuine dispute of material fact on summary judgment.
Maxey v. Rest. Concepts II, LLC, 654 F.Supp.2d 1284,
1291 (D. Colo. 2009). “If a party fails to properly
support an assertion of fact or fails to properly ...