United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNT
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion and
Memorandum in Support of Summary Judgment on Count IV-FMLA
Interference (“Motion for Partial Summary
Judgment”), filed on March 8, 2019. [Doc. 149].
Defendant Angela Dawson timely responded on August 30, 2019.
[Doc. 209]. Plaintiff replied on September 12, 2019. [Doc.
218]. The Court held oral argument on the Motion on October
16, 2019. [Doc. 243] (clerk's minutes). The parties
consented to have the undersigned conduct dispositive
proceedings and enter final judgment in this matter. [Doc.
104]. The Court has considered the briefing, the relevant
portions of the record, the relevant law, and the oral
argument. Being otherwise fully advised in the premises, the
Court finds that the Motion is not well-taken and will be
worked for Defendant New Mexico General Services Department
(“GSD”) as an Information Technology
(“IT”) Generalist 2 from 2013 to 2016. [Doc. 94]
at 3 (Third Amended Complaint). Defendant Baltzley was her
direct supervisor. Id. Defendant Burckle was
Baltzley's supervisor. Id. Defendant Dawson was
GSD's Human Resources Bureau Chief during the relevant
time period. [Doc. 149-2] at 18.
requested leave under the Family and Medical Leave Act
(“FMLA”) at least five times. See [Doc.
149] at 14-27. She claims that she needed the leave due to
health complications following a ski accident and after being
treated for breast cancer. Id. at 4-10. Plaintiff
alleges that Defendants interfered with her FMLA leave in a
number of ways: by excluding her overtime hours when
calculating her FMLA-leave entitlement, by failing to allow
her to return to work upon expiration of FMLA leave, by
failing to give her proper notice of her rights under the
FMLA, by miscalculating her available leave, and by
attempting to terminate her employment because her illness
prevented her from performing the essential functions of her
job. Id. at 13-22, 26-27.
the final allegation, Plaintiff asserts that Defendants
attempted to fire her “for being too sick to
work” by sending her a notice of contemplated
separation signed by Burckle on August 31, 2015. Id.
at 21. Plaintiff then asserts that she, Dawson, Burckle, and
one additional GSD employee attended an oral-response hearing
to discuss the notice of contemplated separation.
Id. She claims that Defendants told her at this
hearing that she would be terminated for being unable to
work. Id. at 7. She also claims, however, that
Defendants told her that they would withdraw the notice of
contemplated separation if she were to provide a written
statement from her doctor certifying that she was able to
return to work. Id. Plaintiff provided such
certification, and Dawson sent her a letter notifying her
that GSD had withdrawn its notice of contemplated separation.
See [Doc. 149-2] at 25.
April 21, 2016, Plaintiff filed suit in New Mexico state
court. [Doc. 1-2] at 1. Defendants removed the case to
federal court on May 23, 2016. [Doc. 1] at 1. On July 11,
2018, Plaintiff filed her Third Amended Complaint. [Doc. 94].
She alleges in Count IV that Dawson, in her individual
capacity, interfered with her use of FMLA leave. Id.
at 34-36. Plaintiff filed the instant Motion for Partial
Summary Judgment on her FMLA-interference claim against
Dawson on March 8, 2019. [Doc. 149].
court shall grant summary judgment 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). “[W]here the moving party has the
burden-the plaintiff on a claim for relief or the defendant
on an affirmative defense-[her] showing must be sufficient
for the court to hold that no reasonable trier of fact could
find other than for the moving party.” Paul v.
Monts, 906 F.2d 1468, 1474 (10th Cir. 1990) (first
alteration in original) (quoting Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986)). A court must
deny summary judgment if a reasonable trier of fact could
find for the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When applying this
standard, the court must construe the evidence in the light
most favorable to the non-moving party. Tolan, 572
U.S. at 657.
proceeds pro se. Courts liberally construe pro se filings.
Calhoun v. Att'y Gen. of Colo., 745 F.3d 1070,
1073 (10th Cir. 2014). Yet, courts cannot act as advocates
for pro se parties, Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991), and pro se parties must comply with
the Federal Rules of Civil Procedure, Kay v. Bemis,
500 F.3d 1214, 1218 (10th Cir. 2007).
interference claim under the FMLA has three elements:
“(1) that [the employee] was entitled to FMLA leave,
(2) that some adverse action by the employer interfered with
her right to take FMLA leave, and (3) that the employer's
action was related to the exercise or attempted exercise of
her FMLA rights.” Dalpiaz v. Carbon Cty., 760
F.3d 1126, 1132 (10th Cir. 2014) (quoting Campbell v.
Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir.
2007)). A plaintiff bears the burden of proof by a
preponderance of the evidence on the first two elements of
this test. If she meets her burden, then the burden of proof
shifts to the defendant to demonstrate that its actions were
unrelated to the plaintiff's exercise of FMLA rights.
See Janczak v. Tulsa Winch, Inc., 621 Fed.Appx. 528,
531 (10th Cir. 2015); Crowell v. Denver Health &
Hosp. Auth., 572 Fed.Appx. 650, 653 (10th Cir. 2014).
argues that the Court should deny Plaintiff's Motion for
Partial Summary Judgment for four reasons. First, she argues
that there is an issue of fact over whether Dawson was
Plaintiff's “employer” under the FMLA. [Doc.
209] at 13-14. Second, she argues that Plaintiff fails to
present any evidence suggesting she was entitled to FMLA
leave at the time of the alleged incidents of interference.
Id. at 14-15. Third, Dawson contends that she did
not subject Plaintiff to an adverse employment action and,
even if she did, that Plaintiff suffered no prejudice from
the alleged actions. Id. at 15-30. Finally, she
argues that there is an issue of fact over whether
Dawson's actions caused an FMLA violation. Id.
at 29-30. Because the Court agrees with Dawson's first
argument, it will not address her remaining arguments.
Plaintiff fails to meet her burden to show that there is no
genuine issue of fact overwhether Dawson