Jernigan v. Touchstone Health Partners

Filing 44

AMENDED 43 ORDER CONCLUSION: Granting ECF 27 Defendants Motion for Partial Summary Judgment as to Plaintiffs Second, Third, and Fourth Claims for Relief and judgment shall enter in favor of Defendants on those claims at the conclusion of this action, by Judge William J. Martinez on 9/9/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1116-WJM-KMT
KRISTEN N. JERNIGAN,
Plaintiff,
v.
TOUCHSTONE HEALTH PARTNERS, a Colorado nonprofit corporation f/k/a LARIMER
CENTER FOR MENTAL HEALTH, and
CYNDI DODDS,
Defendants.

AMENDED ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Kristen N. Jernigan (“Plaintiff”) brings this action alleging violations of the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(2), and related state claims,
against Defendants Touchstone Health Partners (“Touchstone”) and Cyndi Dodds
(jointly “Defendants”). (Compl. (ECF No. 1).) This matter is before the Court on
Plaintiff’s Motion for Partial Summary Judgment (“Plaintiff’s Motion”) (ECF No. 26) as to
her First Claim for Relief, and Defendants’ Motion for Partial Summary Judgment
(“Defendants’ Motion”) (ECF No. 27) as to Plaintiff’s Second, Third, and Fourth Claims
for Relief. For the reasons set forth below, Plaintiff’s Motion is denied and Defendants’
Motion is granted.
I. BACKGROUND
The relevant facts are as follows, and are undisputed unless otherwise noted.
Plaintiff was employed as Assistant Chief Operations Officer of Child and Family

Services in the Shields Office of Touchstone (previously known as Larimer Center for
Mental Health) from May 4, 2011 until September 28, 2012. (Movant’s Statement of
Material Facts (“MSMF”) to Plaintiff’s Motion (ECF No. 26-2) ¶¶ 1-2.) Defendant Dodds,
a Chief Operations Officer at Touchstone, was Plaintiff’s immediate supervisor. (Id. ¶
9A.) At the time Plaintiff was hired, she received a copy of the Larimer Center for
Mental Health Handbook (“Handbook”), and signed an Employee Acknowledgement of
Receipt of the Handbook. (Plaintiff’s Dep. (ECF No. 27-2) p. 10; ECF No. 27-5.)
In late March 2012, Dodds conducted an evaluation of Plaintiff that included
some positive and some negative results. (MSMF ¶¶ 13-14.) Among the negative
concerns on the evaluation was Plaintiff’s poor working relationships with other
employees. (Id. ¶ 14.) Following the evaluation, a number of complaints were made
about Plaintiff by other employees, which complaints were each individually resolved.
(Id. ¶ 17.)
On August 16, 2012, Dodds issued a disciplinary action form to Plaintiff due to
“perceived retaliation” by Plaintiff against employees, a “hostile work environment”, and
an employee who had recently resigned, citing such problems with Plaintiff. (Id. ¶¶ 23,
27.) Plaintiff was placed on a performance improvement plan and corrective action
plan as part of the disciplinary action. (Id. ¶ 28.) After the disciplinary action, Dodds
became aware of two instances of perceived retaliation by Plaintiff against employees
under her supervision, the first of which involved Plaintiff blocking certain employees
from being able to view her Outlook calendar. (Id. ¶ 37.) The second instance of
perceived retaliation involved Plaintiff administering a disciplinary action as well as a

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performance improvement plan to an employee without previously discussing the
disciplinary action with Dodds. (Id.)
On September 10, 2012, at a meeting attended by Dodds and other supervisors,
Plaintiff advocated on behalf of another employee, Allisyn Hollweg, who had taken
FMLA leave. (Id. ¶¶ 45-47.) Plaintiff had previously advocated on behalf of Hollweg
because Plaintiff believed that Hollweg’s supervisor appeared to be discriminating
against Hollweg on the basis of her FMLA leave. (Id. ¶ 44.) After the meeting, Dodds
informed Plaintiff of her concerns about Hollweg; the parties dispute the exact contents
of Dodds’s statement. (Id. ¶ 48; Dodds Dep. (ECF No. 29-1) pp. 168-69.)
On September 13, 2012, Plaintiff advised Dodds that she needed to take FMLA
leave to care for her terminally ill father beginning on October 1, 2012, for two to six
weeks. (MSMF ¶¶ 52, 55-56.) On September 21, 2012, another employee under
Plaintiff’s supervision resigned. (Id. ¶ 72.) On September 26, 2012, Dodds met with
Plaintiff to discuss with her the disciplinary action that Plaintiff had administered to an
employee without receiving prior approval from Dodds. (Id. ¶¶ 60, 62.) At this point, no
possibility of termination was discussed. (Id.)
On Friday, September 28, 2012, at 3:00 p.m., two business hours before Plaintiff
was scheduled to begin her FMLA leave the following Monday, Plaintiff was terminated
from her employment. (Id. ¶ 63.) Defendants state that this date and time was chosen
because by then, four people under Plaintiff’s supervision had resigned, and
Defendants feared that more resignations might occur if Plaintiff remained employed
with Touchstone. (Id. ¶¶ 58, 66.) Defendants have presented evidence, which Plaintiff

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disputes, that these four people had all identified Plaintiff or her leadership as one of
their reasons for leaving their employment with Touchstone. (ECF Nos. 29-2 ¶ 27; 29-3
¶ 30.)
Plaintiff filed this action on April 25, 2013, bringing four claims: (1) violation of the
FMLA; (2) termination in violation of public policy; (3) breach of implied contract; and
(4) intentional interference with contract. (ECF No. 1.) Plaintiff’s First and Third Claims
are asserted against Touchstone, her Second Claim is asserted against both
Defendants, and her Fourth Claim is asserted only against Dodds. (Id.) Both Plaintiff’s
and Defendants’ Motions for Partial Summary Judgment were filed on February 20,
2014. (ECF Nos. 26 & 27.) The parties’ respective Responses were filed on March 13,
2014 (ECF Nos. 28 & 29), and their Replies were filed on March 27, 2014 (ECF Nos. 30
& 31). Both motions are ripe for disposition.
II. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). W hether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).

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A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
III. ANALYSIS
Plaintiff moves for summary judgment as to her First Claim, while Defendants
move for summary judgment as to Plaintiff’s Second, Third, and Fourth Claims. (ECF
Nos. 26 & 27.) The Court will discuss each motion and claim in turn.
A.

Plaintiff’s Motion: First Claim - FMLA
Plaintiff moves for summary judgment solely on her First Claim, brought under

the FMLA. (ECF No. 26.) Plaintiff’s First Claim alleges that Touchstone is liable for
violation of the FMLA under each of two theories, a retaliation theory and an
interference theory. (Compl. ¶¶ 18-22.)
1.

Interference

An employer that interferes with an employee’s attempt to exercise her FMLA
rights is liable for violating the FMLA. 29 U.S.C. § 2615(a)(1). To succeed on an
interference claim, the employee must prove that: (1) she was entitled to FMLA leave;
(2) an adverse action by her employer interfered with her right to take FMLA leave; and
(3) the adverse action was related to the exercise or attempted exercise of her FMLA
rights. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir.
2006). The employer can defeat an interference claim by showing that it would have

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taken the adverse action against the employee regardless of her attempt to take FMLA
leave. Id.
Plaintiff argues that Touchstone is liable for violating the FMLA because it
knowingly and intentionally interfered with Plaintiff’s exercise of her FMLA rights when it
fired her two hours before her approved FMLA leave was scheduled to begin,
preventing her from taking such leave. (Compl. ¶ 21.) It is undisputed that Plaintiff was
eligible to take FMLA leave, and that Plaintiff was terminated before her leave began.
(See MSMF ¶¶ 50, 65; ECF No. 49 at 8-10.) However, Defendants argue that there is
a genuine dispute of fact as to whether Touchstone would have terminated Plaintiff
regardless of her attempt to take FMLA leave. (ECF No. 29 at 21-22.) Defendants
point to evidence showing that Plaintiff was disciplined prior to requesting FMLA leave,
and that Defendants continued to receive complaints about Plaintiff from employees
after the discipline. (Id.) Defendants cite other evidence that they argue establishes
legitimate reasons for terminating Plaintiff, including the actions she took against the
complaining employees that were perceived to be retaliatory, and multiple resignations
of employees under Plaintiff’s supervision that were connected to complaints about
Plaintiff’s conduct. (Id.) In response, Plaintiff contends that, for various reasons, these
asserted non-FMLA reasons for terminating Plaintiff were “obvious[ly]” pretextual, and
that the evidence Defendants cite “do[es] not rise to the level of providing credible
evidence” that Plaintiff would have been terminated without her request for FMLA leave.
(ECF No. 26-3 at 14-17.)
Viewing the evidence in the light most favorable to Defendants, as the nonmovants on this Motion, the Court finds that a reasonable jury could find that Plaintiff
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would have been fired regardless of her request for FMLA leave. This is sufficient to
defeat summary judgment on Plaintiff’s interference claim. See Metzler, 464 F.3d at
1180. Plaintiff’s assertion that Defendants’ witnesses are not credible is of no moment
in the summary judgment analysis, wherein “[t]he evidence of the non-movant is to be
believed” by the Court. Anderson, 477 U.S. at 255 (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge . . . .”). Accordingly, Plaintiff’s Motion is denied as to
her interference theory of FMLA liability.
2.

Retaliation

A claim of retaliation under the FMLA is analyzed under a burden-shifting
framework, and requires that the employee first establish a prima facie case by showing
that (1) she engaged in a protected activity, (2) she was adversely affected by an
employment decision, and (3) there was a causal connection between the protected
activity and the adverse action. Metzler, 464 F.3d at 1170 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973)). Once the em ployee establishes a prima
facie case, the burden shifts to the employer who must demonstrate a legitimate, nonretaliatory reason for the adverse action. Id. at 1172. If the employer meets this
burden, the burden shifts back to the employee to show that the employer’s nonretaliatory reason is pretextual. Id.
Plaintiff contends that Touchstone violated the FMLA by retaliating against her,
both for her own exercise of her FMLA rights and for advocating on behalf of another
employee’s FMLA rights. (Compl. ¶¶ 19-20.) It is undisputed that Plaintiff attempted to

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take FMLA leave, and was adversely affected by being terminated.1 (See MSMF ¶¶ 55,
58.) Plaintiff does not argue that Defendants have failed to meet their burden to
demonstrate non-retaliatory reasons for terminating her. Instead, Plaintiff contends that
the evidence of pretext is so strong that no reasonable jury could find that Defendants’
reasons were legitimate. (ECF No. 26-3 at 14.)
The only evidence Plaintiff cites in her Motion in support of her pretext argument is
a statement by Defendant Dodds regarding Plaintiff’s advocacy for Hollweg’s FMLA
rights, wherein Dodds allegedly stated, “No manager is ever going to hire [Hollweg] for a
clinical position, and she’s been a liability since I began my work here because of her
need for FMLA, because of her need for leave time.” (Id. (citing MSMF ¶ 48).) This
statement, Plaintiff suggests, proves Dodds’s hostility toward the use of FMLA leave,
from which it must be inferred that Plaintiff’s termination eighteen days later was a result
of Plaintiff’s own attempt to take FMLA leave and her advocacy for Hollweg’s FMLA
rights. However, Dodds’s alleged statement is not an undisputed fact. Dodds does not
dispute the first clause, that no manager would hire Hollweg for a clinical position, but
Dodds denies saying that Hollweg was a liability because of her need for FMLA leave.
(ECF No. 29 at 7-8 (citing Dodds Dep. pp. 168-69).) Instead, Dodds testif ied that she
recalled referring to Hollweg as a liability “in regards to client quality-of-care concerns
and staff cancellations.” (Id.) While Dodds admitted that these concerns were largely
due to Hollweg’s absenteeism, she stated that such absenteeism was caused by multiple

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Neither party argues the causation prong of the prima facie case. However, because
the Court concludes that the Motion fails at a later stage of the burden-shifting analysis, the
Court will assume that causation is satisfied for the purposes of evaluating Plaintiff’s Motion.

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reasons, not solely Hollweg’s FMLA leave. (See Dodds Dep. p. 169.)
Viewing the evidence in the light most favorable to Defendants, Dodds’s
statement is insufficient to show that no reasonable jury could believe Defendants’ nonretaliatory reasons for terminating Plaintiff. Even if the content of Dodds’s statement
were not in dispute, a reasonable jury could still find that Defendants’ non-retaliatory
reasons for terminating Plaintiff were legitimate based on the prior disciplinary action,
reports of employee complaints, and employee resignations. Accordingly, Plaintiff has
failed to show that she is entitled to judgment as a matter of law on her retaliation claim.
As Plaintiff has failed to show that summary judgment is warranted on either of
her theories of liability on her First Claim for Relief, Plaintiff’s Motion is denied in its
entirety.
B.

Defendants’ Motion
Defendants move for summary judgment on Plaintiff’s Second, Third, and Fourth

Claims. (ECF No. 27.) The Court will discuss each claim in turn.
1.

Second Claim - Termination in Violation of Public Policy

Plaintiff’s Second Claim for Relief is brought against both Defendants, and
alleges that Plaintiff was terminated in violation of public policy. (Compl. ¶¶ 23-27.)
Defendants’ Motion contends that Plaintiff has failed to establish essential elements of
this claim, such as the requirement to show that she was directed to perform an illegal
act or prohibited from performing a public duty. (ECF No. 27 at 7-8.) In Plaintiff’s
Response, she states that she agrees with Defendants’ arguments as to her Second
Claim, and “therefore agrees to a dismissal of that claim against both Defendants.”
(ECF No. 28 at 1.)
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Plaintiff has conceded the absence of an essential element of her Second Claim,
and has confessed Defendants’ Motion as to that claim. As such, the Court grants
Defendants’ Motion as to Plaintiff’s Second Claim for termination in violation of public
policy.
2.

Third Claim - Breach of Implied Contract

Plaintiff’s Third Claim, for breach of an implied contract, is asserted solely
against Touchstone. (Compl. p. 7.) Plaintiff’s Complaint alleges that Touchstone’s
policies and procedures, particularly those contained in the Handbook, constituted an
implied contract that Touchstone breached by terminating Plaintiff without complying
with the progressive disciplinary procedures described therein. (Id. ¶¶ 28-32.)
Defendants do not dispute that the Handbook contains a policy establishing a
progressive disciplinary procedure prior to termination; rather, they argue that the
Handbook did not constitute an implied contract as a matter of law because it contained
a clear and conspicuous disclaimer. (ECF No. 27 at 9-10; ECF No. 30 at 4-9.)
Under Colorado law, termination procedures in an employee manual may be
enforceable as an implied contract under certain circumstances. Jaynes v. Centura
Health Corp., 148 P.3d 241, 247 (Colo. App. 2006) (citing Cont'l Air Lines, Inc. v.
Keenan, 731 P.2d 708, 711 (Colo. 1987)). However, if the manual contains a “clear
and conspicuous” disclaimer of contractual rights, no implied contract is created unless
the manual also contains mandatory termination procedures or requires “just cause” for
termination. Id. at 248 (citing Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d
402, 409 (Colo. App. 1993)). W hether a disclaimer is clear and conspicuous is a

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question of law. Id.
Here, the Handbook contains a disclaimer in bold, capital letters under the
heading “About the Employee Handbook” that reads, in pertinent part, as f ollows:
EMPLOYEES HAVE THE RIGHT TO END THEIR WORK
RELATIONSHIP WITH TOUCHSTONE, WITH OR WITHOUT ADVANCE
NOTICE FOR ANY REASON. TOUCHSTONE HAS THE SAME RIGHT.
THE LANGUAGE USED IN THIS HANDBOOK AND ANY VERBAL
STATEMENTS MADE BY MANAGEMENT ARE NOT INTENDED TO
CONSTITUTE A CONTRACT OF EMPLOYMENT, EITHER EXPRESS
OR IMPLIED.
(ECF No. 27-6 p. 4.) The Court considers this language to be clear and conspicuous.
Cf. Jaynes, 148 P.3d at 248; George v. Ute Water Conservancy Dist., 950 P.2d 1195,
1198 (Colo. App. 1997). This finding is supported by a similar disclaimer on the
Acknowledgement of Receipt of the Employee Handbook, which Plaintiff signed at the
beginning of her employment with Touchstone. (ECF No. 27-5); see also Jaynes, 148
P.3d at 248 (finding disclaimer in handbook to be clear and conspicuous, creating no
implied contract with the plaintiff, “especially in light of her admission to having read the
[handbook]”).
Plaintiff does not explicitly admit that the disclaimer is clear and conspicuous, but
neither does she cite any authority supporting a contrary finding. (See ECF No. 28 at
27-29.) Rather, Plaintiff argues that the progressive discipline procedures in the
Handbook constituted a mandatory termination policy that invalidates the legal effect of
the disclaimer. (Id. (citing Allabashi v. Lincoln Nat’l Sales Corp., 824 P.2d 1 (Colo. App.
1991); Evenson, 879 P.2d at 408-09).) However, the cases Plaintiff cites are
distinguishable, both by the absence of a clear and conspicuous disclaimer, and by the

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strong evidence in those cases that the termination procedures were mandatory. See
Allabashi, 824 P.2d at 3; Evenson, 879 P.2d at 409. In contrast, the Handbook here
contains a disclaimer that expressly indicates that an employee may be terminated, or
may resign, at any time without notice. (ECF No. 27-6 p. 4.) The inclusion of such
language in the Handbook is undisputed. (See ECF No. 28 at 7-8.) Therefore, the
progressive disciplinary policy is not a mandatory termination procedure, because the
disclaimer contains undisputed, express language confirming that employment was
purely at will. Indeed, Plaintiff admits that she was an at-will employee. (ECF No. 28 at
27.)
The Court finds that the Handbook did not contain any language invalidating the
effect of the clear and conspicuous disclaimer, and thus the Handbook created no
implied contract as a matter of law. Accordingly, Defendants’ Motion is granted as to
Plaintiff’s Third Claim for breach of implied contract.
3.

Fourth Claim - Intentional Interference With Contract

Plaintiff’s Fourth Claim, for intentional interference with contract, is asserted only
against Dodds, and alleges that Dodds is liable for intentional interference with the
employment contract between Plaintiff and Touchstone because Dodds caused
Plaintiff’s employment to be terminated. (Compl. ¶¶ 33-35.) Defendants argue that this
claim fails because Plaintiff has presented no evidence that Dodds was motivated
solely by animus toward Plaintiff, and thus Dodds is not liable for intentional
interference as a matter of law. (ECF No. 27 at 10-12.)
Under Colorado law, “an agent who, while acting within the scope of official
duties, causes his or her principal to breach a contract generally will not be held liable
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for tortious interference with that contract.” W.O. Brisben Cos., Inc. v. Krystkowiak, 66
P.3d 133, 136 (Colo. App. 2002), aff’d, 90 P.3d 859 (Colo. 2004). The agent may be
held liable, however, when she acts not even partly in service of the corporation’s
interests, but instead acts solely “out of personal animus towards one or both of the
contracting parties.” Id.; see also Rudd v. Burlington Coat Factory Warehouse of Colo.,
Inc., 388 F. Supp. 2d 1201, 1207 (D. Colo. 2005).
Plaintiff cites evidence that she was not informed that her job was in jeopardy,
that her job performance was improving after she received disciplinary action, and that
she was never given the opportunity to rebut the claims made about her by the
complaining employees. (ECF No. 28 at 29-30.) However, in order to find in Plaintiff’s
favor, a jury would have to find that none of Defendants’ stated reasons for terminating
Plaintiff were even partial motivations for Dodds’s decision to fire her, and that Dodds’s
sole motive was to retaliate against and harass Plaintiff. See Rudd, 288 F. Supp. 2d at
1207. Even taking the evidence in the light most favorable to Plaintiff, the Court finds
no evidence in the record that permits a reasonable jury to conclude that Dodds acted
solely out of malice or animus toward her, and Plaintiff cites none. (See ECF No. 28 at
29-30.) Accordingly, Defendants’ Motion is granted as to Plaintiff’s Fourth Claim for
intentional interference with contract.
In sum, the Court has granted summary judgment in Defendants’ favor as to
Plaintiff’s Second Claim against both Defendants, her Third Claim against Touchstone,
and her Fourth Claim against Dodds. Plaintiff’s First Claim is the sole remaining claim,
and it is asserted only against Touchstone. (See Compl. p. 6.) As such, Defendant

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Dodds shall be dismissed as a defendant.
IV. CONCLUSION
For the foregoing reasons, the Court orders as follows:
1.

Plaintiff’s Motion for Partial Summary Judgment (ECF No. 26) as to her
First Claim for Relief is DENIED;

2.

Defendants’ Motion for Partial Summary Judgment (ECF No. 27) as to
Plaintiff’s Second, Third, and Fourth Claims for Relief is GRANTED and
judgment shall enter in favor of Defendants on those claims at the
conclusion of this action;

3.

As no claim remains pending against Defendant Cyndi Dodds, she is
DISMISSED as a defendant and shall be removed from the caption in
future filings; and

4.

This action remains pending as to Plaintiff’s First Claim for Relief against
Defendant Touchstone Health Partners, and shall proceed to trial as
previously scheduled, commencing on June 29, 2015.

Dated this 9th day of September, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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