Melville v. Third Way Center, Inc.

          ORDER GRANTING SUMMARY JUDGMENT

          Daniel D. Domenico United States District Judge.

         Plaintiff, 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.

         I. UNDISPUTED MATERIAL FACTS^[1]

         Defendant 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.^[2]

         Plaintiff 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 February 2015.

         Without 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, ^[3] and 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 Examiners (Board).

         In 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.

         During 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.

         Following 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.^[4] She only attended these programs a handful of times and did not complete either one.

         On 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.

         Based 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.

         On May 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^[5] 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.

         On 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 all claims.

         II. ANALYSIS

         The 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).

         On a 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).

         In 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 ...