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Burke v. State of New Mexico General Services Department

United States District Court, D. New Mexico

November 1, 2019




         THIS 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[2] 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 DENIED.

         BACKGROUND [3]

         Plaintiff 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.

         Plaintiff 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.

         As to 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.[4] 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.

         On 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].


         “The 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.

         Plaintiff 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).


         An 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).

         Dawson 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.

         A. Plaintiff fails to meet her burden to show that there is no genuine issue of fact overwhether Dawson was ...

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