Anderson v. Guaranty Bank and Trust Co.
Filing
44
ORDER AND OPINION re: 32 MOTION for Summary Judgment filed by Guaranty Bank and Trust Co., by Magistrate Judge Nina Y. Wang on 10/09/2015. (Attachments: # 1 Attachment 1, # 2 Attachment 2) (slibi, )
Page 1
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
D.C.COLO.LCivR. 72.1.
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Julia Morgan, Plaintiff,
v.
Goodwill Industries of Denver, Inc., Defendant.
Civil Action No. 12–cv–00274–WYD–CBS
1:12–cv–00274July 19, 2013
December 20, 2013
Julia Morgan, Lakewood, CO, pro se.
Danielle T. Felder, Tanya Eileen Milligan, Messner &
Reeves LLC, Denver, CO, for Defendant.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Wiley Y. Daniel, Senior U.S. District Judge
*1 THIS MATTER is before the Court on defendant, Goodwill Industries of Denver, Inc.'s
(“Goodwill”) Motion For Summary Judgment Dismissing All Of Plaintiff's Claims [ECF No. 14] and
Magistrate Judge Shaffer's Recommendation [ECF
No. 20]. Because the plaintiff, Julia Morgan, proceeds
pro se, I referred Goodwill's Motion For Summary
Judgment Dismissing All Of Plaintiff's Claims [ECF
No. 14] to Magistrate Judge Shaffer on May 1, 2013.
ECF No. 15. On July 19, 2013, Magistrate Judge
Shaffer issued a Recommendation [ECF No. 20]
stating that Goodwill's Motion For Summary Judgment Dismissing All Of Plaintiff's Claims [ECF No.
14] should be granted. The Recommendation [ECF
No. 20] is incorporated herein by reference. See 28
U.S.C. § 636(b)(1), Rule 72(b) of the FEDERAL
RULES
OF
CIVIL
PROCEDURE,
Magistrate Judge Shaffer advised the parties that
objections to the Recommendation [ECF No. 20] must
be filed within 14 days after service of a copy of the
Recommendation [ECF No. 20]. ECF No. 20, p.18. As
of Friday, December 20, 2013, no party has filed objections. Because the parties did not file objections to
Magistrate Judge Shaffer's Recommendation [ECF
No. 20], I am vested with discretion to review it “under any standard [I] deem [ ] appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir.1991); see also
Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that
“[i]t does not appear that Congress intended to require
district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard,
when neither party objects to those findings”). Nonetheless, though not required to do so, I review the
Recommendation to “satisfy [my]self that there is no
clear error on the face of the record.” FN1 Advisory
Committee Notes to FED. R. CIV. P. 72(b).
FN1. Note, this standard of review is something less than a “clearly erroneous or contrary to law” standard of review, FED. R.
CIV. P. 72(a), which in turn is less than a de
novo review, FED. R. CIV. P. 72(b).
Having reviewed the Recommendation [ECF No.
20], I am satisfied that there is no clear error on the
face of the record. I find that Magistrate Judge Shaffer's Recommendation [ECF No. 20] is thorough,
well-reasoned, and sound. Further, I agree that
Goodwill's Motion For Summary Judgment Dismissing All Of Plaintiff's Claims [ECF No. 14] should be
granted and that Goodwill is entitled to summary
judgment on Morgan's claims.
CONCLUSION
After careful consideration of the matters before
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
this Court, it is
ORDERED that Magistrate Judge Shaffer's
Recommendation [ECF No. 20] is AFFIRMED and
ADOPTED. As such, it is
FURTHER ORDERED that Goodwill's Motion
For Summary Judgment Dismissing All Of Plaintiff's
Claims [ECF No. 14] is GRANTED and Morgan's
claims are DISMISSED WITH PREJUDICE.
RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on “Defendant's Motion for Summary Judgment Dismissing
All of Plaintiff's Claims.” Pursuant to the Amended
Order of Reference dated February 3, 2012 (Doc. # 4)
and the memorandum dated May 1, 2013 (Doc. # 15),
this matter was referred to the Magistrate Judge. The
court has reviewed the Motion, the Declarations and
exhibits, Defendant's Reply (filed June 7, 2013) (Doc.
# 18), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.
I. Statement of the Case
*2 Proceeding pro se, Ms. Morgan initiated this
lawsuit on February 1, 2012, alleging jurisdiction
based on Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–5, and other statutes and regulations.
(See Complaint (Doc. # 1) at 1–2 of 10). Her claims
arose from her employment with Goodwill Industries
of Denver (“Goodwill”), a non-profit Colorado corporation that operates a retail store located at 1450 S.
Wadsworth Boulevard, Lakewood, Colorado (“S.
Wadsworth Store”), among others. Ms. Morgan alleges five claims for: (1) discrimination based on a
knee injury or an unidentified “cognitive disability”;
(2) retaliation for filing a complaint with the EEOC;
(3) retaliation for filing complaints with “government
regulation agencies”; (4) reverse discrimination based
on her “white” race, and (5) retaliation for her opposition to “payroll practices.” (See id. at 2–5 of 10). She
seeks injunctive and monetary relief. (See id. at 6 of
10).
II. Standard of Review
Defendant moves pursuant to Fed.R.Civ.P. 56 for
summary judgment on all of the claims in the Complaint. “Pursuant to Rule 56(c) of the Federal Rules of
Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and the ... moving party is
entitled to judgment as a matter of law.” Montgomery
v. Board of County Commissioners of Douglas
County, Colorado, 637 F.Supp.2d 934, 939
(D.Colo.2009) (internal quotation marks and citations
omitted).
When applying this standard, the court must view
the evidence and draw all reasonable inferences
therefrom in the light most favorable to the party
opposing summary judgment. All doubts must be
resolved in favor of the existence of triable issues of
fact.
The plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who
fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of
proof at trial. In such a situation, there can be no
genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is entitled to a judgment as a matter of law because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
Id. (internal quotation marks and citations omitted).
Ms. Morgan has not filed a response to Goodwill's Motion. On May 1, 2013, the court directed Ms.
Morgan to file any response she had to the Motion on
or before May 31, 2013. (See Order (Doc. # 16)). The
court's records do not reflect that Ms. Morgan's copy
of the court's Order was returned in the mail as undeliverable. Ms. Morgan neither sought an extension of
time to respond nor filed a response. The Federal
Rules of Civil Procedure specifically contemplate the
consequences of Ms. Morgan's failure to oppose the
summary judgment motion:
When a motion for summary judgment is properly
made and supported, an opposing party may not rely
merely on allegations or denials in its own pleading;
rather, its response must—by affidavits or as otherwise provided by this rule—set out specific facts
showing a genuine issue for trial. If the opposing
party does not so respond, summary judgment
should, if appropriate, be entered against that party.
Fed.R.Civ.P. 56(e). “If the nonmoving party fails
to respond, the district court may not grant the motion
without first examining the moving party's submission
to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial
and the moving party is entitled to judgment as a
matter of law.” Murray v. City of Tahlequah, Oklahoma, 312 F.3d 1196, 1200 (10th Cir.2002). See also
Armstrong v. Swanson, 2009 WL 1938793 at * 7
(D.Colo. July 2, 2009) (“When a party with the burden
of proof fails to respond to a motion for summary
judgment, the motion is not reflexively granted; rather, the Court simply deems the non-movant to have
waived the opportunity to assert any additional facts
and examines whether the facts asserted by the movant
warrant a trial or permit entry of judgment as a matter
of law.”) (citation omitted); Barton v. City and County
of Denver, 432 F.Supp.2d 1178, 1188 (D.Colo.2006)
(although plaintiff's failure to make a substantive
response constituted a confession of facts asserted by
defendants, it remained incumbent upon the court to
make the specific determinations required under Rule
56(c)).
*3 “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (citing
Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro
se litigant, including ... summary judgment proceedings.” Id., at n. 3 (citations omitted). However, the
court cannot be a pro se litigant's advocate. Yang v.
Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir.2008).
III. Analysis
At all times relevant to the Complaint, Ms.
Morgan was employed by Goodwill in Colorado. (See
Doc. # 1 at ¶ 5). On October 11, 2008, Goodwill hired
Ms. Morgan as a Cashier at the S. Wadsworth Store.
(See Declaration of Lynn Louvar, Exhibit A to Defendant's Motion (Doc. # 14–6) at ¶ 8; Personnel Action Request, Exhibit C to Defendant's Motion (Doc. #
14–8)). Ms. Morgan is still employed by Goodwill.
(See Doc. # 14–6 at ¶ 14; Deposition of Julia Morgan,
Exhibit F to Defendant's Motion (Doc. # 14–11) at 24
of 25; Answer to Request for Admission No. 1 (Doc. #
14–28 at 18 of 25). When she was hired, Ms. Morgan
signed Goodwill's Americans with Disability Act
Employee Statement and an Acknowledgment Receipt of the Employee Handbook. (See Doc. # 14–6 at
¶ 10; Exhibits D, E to Defendant's Motion (Docs.#
14–9, # 14–10). Ms. Morgan applied for and Goodwill
promoted her to Lead Cashier on November 22, 2008.
(See Application for Employment, Exhibit T to Defendant's Motion (Doc. # 14–29); Personnel Action
Request, Exhibit V to Defendant's Motion (Doc. #
14–31); Doc. # 14–6 at ¶ 12).
On April 8, 2010, Ms. Morgan tripped on her own
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
feet while walking through the store and injured her
right knee. (See HealthONE Occupational Medicine
Centers Initial Evaluation, Exhibit H to Defendant's
Motion (Doc. # 14–15); Workers' Compensation—First Report of Injury, Exhibit H to Defendant's
Motion (Doc. # 14–16); Declaration of Nora
Rimando, Exhibit I to Defendant's Motion (Doc. #
14–17) at ¶ 5; Declaration of Ed Serpas, Exhibit Q to
Defendant's Motion (Doc. # 14–25) at ¶ 9). Ms.
Morgan entered the Workers' Compensation Return–To–Work Program and returned to work on April
10, 2010, two days after her injury. (See Employee
Time Sheet Report, Exhibit J to Defendant's Motion
(Doc. # 14–18) at 16 of 25; Exhibit K to Defendant's
Motion (Doc. 14–19); Doc. # 14–6 at ¶ 11; Doc. #
14–17 at ¶ 6; Doc. # 14–25 at ¶ 10). Ms. Morgan
worked under a Temporary Modified Duty Assignment Agreement that began on April 9, 2010. (See
Exhibit L to Defendant's Motion (Doc. # 14–20); Doc.
# 14–17 at ¶ 10).
Ms. Morgan underwent anterior cruciate ligament
(“ACL”) surgery for her right knee on June 10, 2010.
(See HealthONE Occupational Medicine Centers
Interim Summary, Exhibit M to Defendant's Motion
(Doc. # 14–21); Doc. # 14–17 at ¶ 7; Doc. # 14–25 at ¶
11). Goodwill paid for the surgery. (See Doc. # 14–17
at ¶ 9). Ms. Morgan was on leave from work for two
weeks, from June 10 until June 25, 2010. (See Physician's Report of Worker's Compensation Injury dated
June 18, 2010, Exhibit N to Defendant's Motion (Doc.
# 14–22); Physician's Report of Worker's Compensation Injury dated June 25, 2010, Exhibit O to Defendant's Motion (Doc. # 14–23); Doc. # 14–17 at ¶ 8).
Ms. Morgan returned to work on June 26, 2010 and
worked under a Temporary Modified Duty Assignment Agreement that commenced on June 28, 2010.
(See Temporary Modified Duty Assignment Agreement, Exhibit P to Defendants Motion (Doc. # 14–24);
Doc. # 14–17 at ¶ 11; Doc. # 14–25 at ¶ 12).
*4 On July 6, 2010, Ms. Morgan was permitted to
work sitting in a chair with a back rest. (See Doc. #
14–24 at 2 of 19). On September 27, 2010, Ms. Morgan no longer needed to use a chair and resumed her
responsibilities as a Lead Cashier. (See Doc. # 14–17
at ¶ 15; Doc. # 14–25 at ¶ 16). On November 15, 2010,
she returned to regular duty with no restrictions. (See
HealthONE Occupational Medicine Centers Discharge Summary, Exhibit R to Defendant's Motion
(Doc. # 14–26); Doc. # 14–25 at ¶ 16; Doc. # 14–17 at
¶ 16).
A. First Claim for Relief for Discrimination Based on
a Disability
In her First Claim for Relief, Ms. Morgan alleges
that Goodwill did not make reasonable accommodation for her disabilities, which included her knee injury and an unidentified “cognitive disability.” (See
Doc. # 1 at 3 of 10). The ADA prohibits covered employers from discriminating against “a qualified individual on the basis of disability.” 42 U.S.C. §
12112(a). Discrimination claims brought under the
ADA follow the familiar burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Carter v. Pathfinder Energy Services, Inc.,
662 F.3d 1134, 1141 (10th Cir.2011) (citation omitted). “To state a prima facie case for discrimination
under the ADA, [Ms. Morgan] must establish that (1)
she is disabled, (2) she was qualified, with or without
reasonable accommodation, to perform the essential
functions of her job, and (3) her employer discriminated against her because of her disability.” Robert v.
Board of County Comm'rs, 691 F.3d 1211, 1216 (10th
Cir.2012). Ms. Morgan bears the burden of raising a
genuine issue of material fact on each element of her
prima facie case. Doyal v. Oklahoma Heart, Inc., 213
F.3d 492, 495 (10th Cir.2000).
Goodwill argues that Ms. Morgan cannot prove
any of the three elements of a prima facie case. Regarding the first element of a prima facie case,
Goodwill argues that Ms. Morgan was not disabled.
The ADA defines a disability as “(A) a physical or
mental impairment that substantially limits one or
more major life activities of such individual; (B) a
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
record of such an impairment; or (C) being regarded as
having such an impairment (as described in paragraph
(3)).” 42 U.S.C. § 12102(1)). Ms. Morgan alleges that
she was disabled and/or regarded as disabled under
subsections (A) and (C).
factual question for a jury, it may be evaluated by the
court on a motion for summary judgment. Id. at 1130
n.5; Bristol v. Bd. of County Comm'rs, 281 F.3d 1148,
1161 n. 5 (10th Cir.2002), vacated in part on other
grounds, 312 F.3d 1213 (10th Cir.2002) (en banc).
1. ACL Injury
A court is required to undertake a three-step
analysis under subsection (A). Doyal, 213 F.3d at 495.
“First, the court must determine whether the plaintiff
has an impairment.” Id. Second, the court must identify the life activity upon which the plaintiff relies and
determine whether it constitutes a major life activity
under the ADA.” Id. “Third, the court asks whether
the impairment substantially limited the major life
activity.” Id. See also Doebele v. Sprint/United Mgmt.
Co., 342 F.3d 1117, 1129 (10th Cir.2003) ( “First, the
plaintiff must have a recognized impairment; second,
the plaintiff must identify one or more appropriate
major life activities; and third, the plaintiff must show
that the impairment substantially limits one or more of
those activities.”).
*5 First, Ms. Morgan's temporary physical limitations and work restrictions due to her ACL surgery
and rehabilitation do not establish that she had an
impairment. Courts have determined that an employee
is not disabled where the impairment was temporary
or short-term. See, e.g., Roush v. Weastec, Inc., 96
F.3d 840 (6th Cir.1996) (determining that plaintiff's
kidney condition that resulted in medical leaves of
absence for over 40 weeks per year for two consecutive years and three months the third year was temporary, not substantially limiting and, therefore, not a
disability under the ADA); Sanders v. Arneson
Products, Inc., 91 F.3d 1351 (9th Cir.1996) (holding
that employee's temporary psychological impairment
which lasted for less than four months was of insufficient duration to constitute disability under ADA);
Rogers v. International Marine Terminals, Inc., 87
F.3d 755, 759 (5th Cir.1996) (finding ankle problems
attributable to bone spurs, ligament damage, and gout
were neither chronic nor severe enough to constitute a
disability under the ADA); Blanton v. Winston Printing Company, 868 F.Supp. 804, 808 (M.D.N.C.1994)
(holding that knee injury of temporary duration with
minimal residual effects could not be the basis for a
viable claim under the ADA). “It is clear that a temporary disability does not meet the standards of the
ADA; rather, [t]he impairment's impact must ... be
permanent or long term.” Prathan v. Autoliv ASP, Inc.,
No. 03–4255, 117 F. App'x 650, 651 (10th Cir. Nov.
15, 2004) (noting there was no medical evidence in the
record that Plaintiff's disability “was anything other
than temporary”) (internal quotation marks and citation omitted). See also Cobey v. Green, 424 Fed. App'x 209, 212 (4th Cir.2011) (granting summary
judgment for movant where medical records indicated
that claimant's physical limitations, including standing
for long periods of time, were only temporary); Bor-
“Merely having an impairment does not make one
disabled for purposes of the ADA. Claimants also
need to demonstrate that the impairment limits a major
life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). A “major life activity” is not statutorily defined, but both the Equal Employment Opportunity Commission (“EEOC”) and the
courts have defined the term as including “caring for
oneself, performing manual tasks, walking, seeing,
breathing, learning, and working.” Nielsen v. Moroni
Feed Co., 162 F.3d 604, 610 n. 11 (10th Cir.1998)
(citing 29 C.F.R. § 1630.2(i)). See Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1165 n. 5 (10th Cir.1999)
(en banc) (EEOC's interpretative guidance of ADA
regulations given controlling weight) (citations omitted). Whether a plaintiff has an impairment under the
ADA and whether the identified activity is a major life
activity are questions of law for the court. Doebele,
342 F.3d at 1129. Although the question of whether an
impairment is substantially limiting is ordinarily a
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
gialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1290
(10th Cir.2000) (“The ADA was not designed to apply
to temporary conditions.”) (citation omitted).
More specifically, “[t]emporary disability while
recuperating from surgery is generally not considered
a disability under the ADA.” Peoples v. Langley/Empire Candle Co., 2012 WL 171340, *2 (D.Kan.
Jan. 20, 2012) (finding hernia repair surgery is not a
disability under the ADA) (citing 42 U.S.C. §
12102(2), (3)(B). See also Blackburn v. Trs. of Guilford Tech. Comty. Coll., 733 F.Supp.2d 659, 663 n. 3
(M.D.N.C.2010) (“Ordinarily, a temporary impairment due to an injury or illness, including recuperation
from surgery, is not sufficient to qualify as a disability
under the ADA.”); Rebarchek v. Farmers Co-op.
Elevator & Mercantile Ass'n, 60 F.Supp.2d 1145,
1151–52 (D.Kan.1999) (holding that employee's back
injury was not an ADA “disability”; although back
injury required surgery and employee was given certain restrictions while recovering from surgery, there
was no evidence that his restrictions were expected to
be permanent or that his condition was expected to
result in a permanent or long-term impairment of his
ability to engage in major life activities)); Zurenda v.
Cardiology Associates, P.C., 2012 WL 1801740, *8
(N.D.N.Y. May 16, 2012) (finding that plaintiff's
temporary disability due to knee surgery does not
trigger protections under the ADA).
Even more specifically, courts have found that
ACL injuries do not render a person disabled under the
ADA. See Clark v. Western Tidewater Regional Jail
Authority, 2012 WL 253108, *7 (E.D.Va. Jan. 26,
2012) (finding that plaintiff's ACL injury did not
render her disabled under the ADA); Koller v. Riley
Riper Hollin & Colagreco, 850 F.Supp.2d 502, 513
(E.D.Pa.2012) (finding allegations of impairment after
surgery for a torn ACL did not rise to the level necessary to infer any disability under the ADA, as modified by the ADA Amendment Act of 2008
(“ADAAA”)).
Here, the evidence shows that Ms. Morgan's impairment was of limited duration and had no permanent or long term impact. Ms. Morgan had temporary
work restrictions for five months related to her ACL
injury. (See Doc. # 14–17 at ¶¶ 5–11, 15–16, Doc. #
14–19, Doc. # 14–20, Doc. # 14–21, Doc. # 14–22,
Doc. # 14–23, Doc. # 14–24 at 1–7, 9–16, 19 of 19,
Doc. # 14–25 at ¶¶ 9–12, 15–16, Doc. # 14–26).
Goodwill fully complied with her temporary work
restrictions. (See Doc. # 14–13 at 3–5 of 25). Ms.
Morgan reached maximum medical improvement and
on November 15, 2010, she returned to regular duty as
a Lead Cashier with no work restrictions. (See Doc. #
14–12 at 24–25 of 25, Doc. # 14–26).
*6 Nor has Ms. Morgan identified any major life
activities that she contends were impaired. A plaintiff
must identify the activity that he claims is impaired
and establish that it constitutes a major life activity.
Weixel v. Board of Educ. of City of New York, 287
F.3d 138, 147 (2d Cir.2002). Ms. Morgan has not
demonstrated that the temporary restrictions due to her
ACL injury constituted an impairment that substantially limited a major life activity. In sum, Ms. Morgan
does not state a prima facie case for discrimination
under the ADA.
2. “Cognitive Disability”
Ms. Morgan also alleges in her First Claim for
Relief that she has a “cognitive disability.” While she
alleges that her “cognitive disability” is an impairment
under the ADA, Ms. Morgan merely generally alleges
cognitive impairments without producing probative
evidence. Ms. Morgan believes her “cognitive disability” is a “traumatic brain injury.” (See Doc. # 14–11
at 6–7, 77–91). She has never consulted a medical
professional, had a CT Scan or other brain scan, or
received a diagnosis regarding any “cognitive disability” “traumatic brain injury.” (See Doc. # 14–11 at
2, 23–25 of 25). Ms. Morgan alleges that she informed
Goodwill employees in March 2010 that she had a
“cognitive disability.” (See Doc. # 14–11 at 25 of 25,
Doc. # 14–12 at 12–14 of 25; Doc. # 14–13 at 14–16
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
of 25). While she initialed Goodwill's policy regarding
submission of a “Request for Reasonable Accommodation” form, Ms. Morgan never submitted a Request
for Reasonable Accommodation form or otherwise
requested accommodation for any alleged disability.
(See Doc. # 14–6 at ¶¶ 10, 23–24; Doc. # 14–12 at
14–15, 17–18, 24 of 25, Doc. # 14–17 at ¶¶ 18, 20,
Doc. # 14–29, Doc. # 14–30, Doc. # 14–31, Doc. #
14–37, Doc. # 14–44). Ms. Morgan represented that
she could perform the functions of the jobs she performed for Goodwill and she in fact performed those
job functions. (See Doc. # 14–9, Doc. # 14–11 at 21 of
25, Doc. # 14–12 at 7–8, 18–19 of 25, Doc. # 14–14 at
7 of 17, Doc. # 14–17 at ¶ 15–16).
There is insufficient evidence in the record to
show Ms. Morgan suffers from the “cognitive disability” she alleges. The record contains nothing more
than Ms. Morgan's conclusory allegations of her personal belief and her statements to other employees that
she has a “cognitive disability.” These allegations are
insufficient to create a record of disability sufficient to
overcome summary judgment, especially when considered together with Ms. Morgan's failure to indicate
on Goodwill's forms that she had a disability, the lack
of any medical diagnosis or documentation that she
suffered from such a condition, her medical release
from any work restrictions, her representations when
applying for her positions at Goodwill that she could
perform the functions of those jobs, and her actual
performance of those job functions. See, e.g., Brettler
v. Purdue University, 408 F.Supp.2d 640, 663–64
(N.D.Ind.2006) (granting employer's motion for
summary judgment where plaintiff failed to provide
any medical records or affidavits establishing any
impairment other than the plaintiff's self-serving affidavit that he has a “narcoleptic condition,” and “intellectual disability”). Ms. Morgan's alleged “cognitive disability” does not constitute a mental impairment that establishes a prima facie case under the
ADA.
As the evidence fails to show that Ms. Morgan
was disabled, she fails to establish the first element of
a prima facie case and no genuine dispute of material
fact exists as to whether Goodwill discriminated
against her on the basis of a disability.
3. Regarded As Disabled
*7 Ms. Morgan also alleges that she was regarded
as disabled under 42 U.S.C. § 12102(1)(C). Goodwill
argues that Ms. Morgan was not regarded as disabled
under prong (C).
For purposes of paragraph (1)(C):
(A) An individual meets the requirement of “being
regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter
because of an actual or perceived physical or mental
impairment whether or not the impairment limits or
is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments
that are transitory and minor. A transitory impairment is an impairment with an actual or expected
duration of 6 months or less.
42 U.S.C. § 12102(3). In the Tenth Circuit, “[a]
person is regarded as disabled when (1) a covered
entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major
life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.”
Johnson v. Weld County, Colo., 594 F.3d 1202, 1219
(10th Cir.2010) (internal quotation marks and citation
omitted). “In both cases, it is necessary that [the employer] entertain misperceptions about the individual-it must believe either that [the individual] has a
substantially limiting impairment that [the individual]
does not have or that [the individual] has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton v. United Airlines,
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 8
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
Inc., 527 U.S. 471, 489 (1999), superseded by statute
on other grounds, ADA Amendments Act of 2008,
Pub.L. No. 110–325, 122 Stat. 3553 (2008). See also
Dillon v. Mountain Coal Co., L.L.C., 569 F.3d 1215,
1218 (10th Cir.2009) (“a plaintiff must show that an
employer has mistaken beliefs about the plaintiff's
abilities ....”) (internal quotation marks and citations
omitted). The court's “focus is on an employer's subjective state of mind: did the employer mistakenly
believe that the plaintiff was substantially limited in
performing a major life activity?” Justice v. Crown
Cork and Seal Co., Inc., 527 F.3d 1080, 1086 (10th
Cir.2008) (citation omitted).
First, Ms. Morgan's claim fails to the extent she
alleges that Goodwill regarded her as disabled based
on her ACL injury. She could not be regarded as disabled for an injury that was transitory and minor. See
42 U.S.C. § 12102(3)(B). Ms. Morgan does not dispute that her injury and recovery had a limited duration. The evidence shows that Goodwill viewed Ms.
Morgan's injury as temporary. See Delgado v. Tom
Kelly & Assocs., Inc., No. 06–CV–0004–CVE–PJC,
2006 WL 3762093, at * 10 (N.D.Okla. Dec. 20, 2006)
(plaintiff's employer did not regard the plaintiff as
disabled because the evidence showed that the employer viewed any impairment as temporary). Ms.
Morgan states that participation in Goodwill's Return–To–Work Program and Temporary Modified
Duty Assignment Agreements demonstrate that
Goodwill regarded her as disabled. (See Doc. # 14–13
at 11, 13 of 25). The Return–to–Work Program utilizes temporary work restrictions for work-related
injuries and is not for employees with disabilities. (See
Doc. # 14–17 at ¶ 4, Workers' Compensation Return–To–Work Program Memorandum, Exhibit K to
Defendant's Motion (Doc. # 14–19)). Goodwill
acknowledged Ms. Morgan's temporary work restrictions and treated her accordingly. An employer's
knowledge of a medical condition and a request for
leave does not establish that an employer perceived an
employee as disabled. Berry v. T–Mobile USA, Inc.,
490 F.3d 1211, 1219–20 (10th Cir.2007). The record
contains no evidence that Goodwill misperceived the
extent of Ms. Morgan's limitation. Goodwill's perception of her limitation was not based on speculation,
stereotype or myth, but on a doctor's written evaluations of her condition. See Wooten, 58 F.3d at 386. Ms.
Morgan does not identify an impairment that substantially limited any major life activities or present
evidence that Goodwill treated or regarded her as
having an impairment that substantially limited any
major life activities. See Hilburn v. Murata Electronics North America, Inc., 181 F.3d at 1220, 1230 (11th
Cir.1999) (“a perceived impairment must be believed
to substantially limit a major life activity of the individual”); Taylor v. Pathmark Stores, Inc., 177 F.3d
180, 192 (3d Cir.1999) (“Liability attaches only to a
mistake that causes the employer to perceive the employee as disabled within the meaning of ADA, i.e., a
mistake that leads the employer to think that the employee is substantially limited in a major life activity.”). Her work restrictions were steadily reduced
during the months after her surgery. (See, e.g., Doc. #
14–13 at 12 of 25). She reached maximum medical
improvement within seven months of her initial injury
and returned to regular duty as a Lead Cashier with no
work restrictions. Ms. Morgan fails to present sufficient evidence that Goodwill regarded her as being
substantially limited in any major life activity based
on her ACL surgery.
*8 Ms. Morgan's claim also fails to the extent she
alleges that Goodwill regarded her as disabled with a
“cognitive disability.” While Ms. Morgan believes she
has a “cognitive disability,” she presents no evidence
that Goodwill regarded her as substantially limited in
any major life activity based on a “cognitive disability.” Ms. Morgan does not identify any major life
activity in which she is substantially limited or regarded as substantially limited. After notification Ms.
Morgan's “cognitive disability,” Goodwill hired her
and promoted her. (See Doc. # 14–11 at 25 of 25, Doc.
# 14–12 at 13 of 25). With Goodwill's knowledge and
participation, Ms. Morgan worked as a Lead Cashier,
a Cashier, and a Processor. (See Doc. # 14–11 at 23 of
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 9
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
25). The fact that Goodwill continued to employ Ms.
Morgan for such work demonstrates that Goodwill
believed Ms. Morgan was able to perform the essential
duties of the jobs and did not regard her as having an
impairment that substantially limited one or more
major life activities. See Eber v. Harris County Hosp.
Dist., 130 F.Supp.2d 847, 862–63 (S.D.Tex.2001)
(plaintiff failed to present a prima facie case under the
ADA where he continued to hold all of his job responsibilities and duties and did not show that he
suffered from an impairment). Ms. Morgan has not
met her burden on summary judgment to present evidence from which a jury could conclude that Goodwill regarded her as substantially limited in a major
life activity. Goodwill is entitled to summary judgment on her claim that she was regarded as disabled.
B. Fourth Claim for Relief for Discrimination Based
on Race and/or National Origin
In her Fourth Claim for Relief, Ms. Morgan alleges that in, violation of “Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e–5,” she “was subjected to adverse employment conditions and disparate treatment for her efforts to oppose race and national origin bias that allowed preferential treatment to
Hispanic/Latino looking persons and Hispanic/Latino
individuals not afforded to similarly situated non
Hispanic employees.” (See Doc. # 1 at 5 of 10; see
also Charge of Discrimination (Doc. # 14–44) at 1 of 2
(“I believe I have been discriminated against because
of my race/national origin (White, European/non—Hispanic)....”). Title VII of the Civil Rights
Act of 1964 makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national origin; ...” 42
U.S.C. § 2000e–2(a)(1). “Title VII was enacted to
ensure equality of employment opportunities and to
eliminate those practices and devices that have historically discriminated on the basis of race, sex, color,
religion, or national origin.” Livingston v. Roadway
Exp., Inc., 802 F.2d 1250, 1251 (10th Cir.1986) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)).
Title VII prohibits discrimination against groups
that historically have not been socially disfavored, as
well as groups that historically have been socially
disfavored. Livingston, 802 F.2d at 1252 (citing
McDonald v. Santa Fe Trail Transportation Co., 427
U.S. 273, 278–80 (1976)). “However, the presumptions in Title VII analysis that are valid when the
plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a member of an
historically favored group.” Livingston, 802 F.2d at
1252. Ms. Morgan's allegation that she was subjected
to disparate treatment because she is “White, European/non–Hispanic” is subject to a reverse discrimination analysis. Lyons v. Red Roof Inns, Inc., No.
04–1360, 130 F. App'x 957, 963 (10th Cir. May 12,
2005).
In order for a reverse discrimination claim to
survive a summary judgment motion, the movant must
first establish a prima facie case. Notari v. Denver
Water Dept., 971 F.2d 585, 588 (10th Cir.1992) (citing McDonnell Douglas, 411 U.S. at 792). If the
plaintiff carries this initial burden, the burden then
shifts to the defendant to show a legitimate nondiscriminatory reason for the challenged employment
decision. Notari, 971 F.2d at 588. If the defendant
meets this burden, the burden then shifts back to the
plaintiff to prove that the legitimate reasons were
really a pretext for discrimination. Notari, 971 F.2d at
588.
In a reverse discrimination case, the prima facie
case is adjusted to reflect the reverse discrimination
context of the lawsuit. Reynolds v. School Dist. No. 1,
Denver, Colo., 69 F.3d 1523, 1534 (10th Cir.1995).
See also Livingston, 802 F.2d at 1252 (“When a
plaintiff who is a member of a favored group alleges
disparate treatment, the courts have adjusted the prima
facie case to reflect this specific context....”). This
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 10
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
adjustment requires the plaintiff to show either:
background circumstances which demonstrate that the
defendant is that unusual employer who discriminates
against the majority or, alternatively, that but for the
plaintiff's status the challenged employment decision
would not have occurred. See Adamson v. Multi–Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1149
(10th Cir.2008) (“When plaintiff is a member of a
historically favored group, by contrast, an inference of
invidious intent is warranted only when background
circumstances support the suspicion that the defendant
is that unusual employer who discriminates against the
majority.”) (citation omitted); McGarry v. Board of
County Com'rs of the County of Pitkin, 175 F.3d 1193,
1199 (10th Cir.1999) (“In addition, a plaintiff may
recover if the plaintiff can demonstrate he or she is the
victim of reverse discrimination by direct evidence of
discrimination, or indirect evidence sufficient to
support a reasonable probability, that but for the
plaintiff's status the challenged employment decision
would have favored the plaintiff.”). “The plaintiff may
proceed by relying on a version of the McDonnell
Douglas Corp. v. Green burden-shifting analysis to
test whether a person who is a member of a historically favored group is entitled to the McDonnell
Douglas presumption of discrimination.” McGarry,
175 F.3d at 1199 (citations omitted). The alternative
approach “does not displace the McDonnell Douglas
paradigm but simply provides an alternative basis
upon which plaintiffs may satisfy their prima facie
burden.” Notari, 971 F.2d at 591. “[I]t is not enough,
under this alternative formulation, for a plaintiff
merely to allege that he was qualified and that someone with different characteristics was the beneficiary
of the challenged employment decision. Instead, the
plaintiff must allege and produce evidence to support a
reasonable inference that but for plaintiff's status the
challenged decision would not have occurred.” Notari,
971 F.2d at 590.
*9 Ms. Morgan fails to establish a prima facie
case because she presents no evidence that Goodwill is
the unusual employer who discriminates against the
majority or that Goodwill treated similarly-situated
non-white employees differently than her. “Similarly
situated employees are those who deal with the same
supervisor and are subject to the same standards governing performance evaluation and discipline.” Rivera
v. City and County of Denver, 365 F.3d 912, 922 (10th
Cir.2004) (internal quotation marks and citation
omitted). In determining whether an employee is
similarly situated to the plaintiff, “[a] court should
also compare the relevant employment circumstances,
such as work history and company policies, applicable
to the plaintiff and the intended comparable employees.” Kendrick v. Penske Transp. Services, Inc., 220
F.3d 1220, 1232 (10th Cir.2000) (citation omitted).
Approximately ten Caucasian employees and six
Hispanic employees worked with Ms. Morgan at the
South Wadsworth Store in 2010. (See Doc. # 14–6 at ¶
25). Ms. Morgan's direct supervisor, Mr. Serpas, is
Caucasian. (See Doc. # 14–25 at ¶ 3). She generally
alleges that Goodwill did not take disciplinary action
against Hispanic employees who engaged in behavior
similar to hers. (See Doc. # 14–14 at 10–12 of 17).
However, Ms. Morgan acknowledges that not all
Hispanic and Caucasian employees were treated differently. (See Doc. # 14–14 at 11 of 17, see also Doc. #
14–25 at ¶ 39). The evidence indicates that Ms.
Morgan was promoted to Lead Cashier on a timetable
similar to other employees, both Hispanic and Caucasian. (See Doc. # 14–12 at 1–4 of 25). Ms. Morgan's
work schedule was not significantly different than
other employees' schedules. (See Doc. # 14–12 at 6–7
of 25, Weekly Employee Schedule, Exhibit X to Defendant's Motion (Doc. # 14–33), Doc. # 14–25 at ¶
17). As all of the Cashiers and Lead Cashiers preferred
to work the day shifts, Mr. Serpas rotated employees'
shifts so that everyone had an opportunity to work day
shifts. (See Doc. # 14–25 at ¶ 17). While Ms. Morgan
and Ms. Burquez were both working as Lead Cashiers,
from approximately April 2010 until October 2010,
Ms. Burquez was scheduled for more of the undesirable closing shifts than Morgan. (See Doc. # 14–33).
The responsibilities that Ms. Morgan complained
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 11
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
about as inequitable, such as rearranging merchandise,
rearranging display racks, were part of the essential
job responsibilities of a Lead Cashier. (See Job Description, Exhibit W to Defendant's Motion, Doc. #
14–32). Ms. Burquez was terminated from her employment at Goodwill on February 5, 2011 for failing
to report for her scheduled shifts. (See Doc. # 14–13 at
8–9 of 25, Doc. # 14–25 at ¶ 37, Personnel Action
Request Form, Exhibit GG to Defendant's Motion
(Doc. # 14–45)). While Ms. Morgan believes that
other employees' attendance was not monitored in the
same manner that her attendance was monitored, she
does not provide specific evidence of dates or hours.
(See Doc. # 14–13 at 20 of 25). She states only generally that two other employees received better training than she did, without providing any facts in support. (See Doc. # 14–14 at 4 of 17). In sum, Ms.
Morgan fails to satisfy the first prong of a prima facie
case because she does not establish background circumstances that “support the suspicion that the defendant is that unusual employer who discriminates
against the majority,” Adamson, 514 F.3d at 1149, or
that any similarly-situated non-Caucasians were
treated more favorably.
C. Retaliation Claims
In the Second, Third, and Fifth Claims for Relief,
Ms. Morgan alleges that she was demoted and “subjected to adverse employment conditions and disparate treatment” for filing “a formal complaint with the
Denver Equal Employment Opportunity Commission
on November 23, 2010,” for opposing “discrimination
about her disability, for utilizing Defendant's internal
notification system and for contacting government
regulation agencies,” and “for her efforts to oppose
Defendant's payroll practices which denied worker's
wage compensation for time worked in violation of
FLSA and Defendant's written policy....” (See Doc. #
1 at 4–5 of 10).
*10 The ADA makes it unlawful for an employer
to “discriminate against any individual because such
individual has opposed any act or practice made un-
lawful by this chapter or because such individual made
a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this chapter.” 42 U.S.C. § 12203(a). In order to
establish a prima facie case of retaliation under the
ADA, Ms. Morgan must demonstrate “(1) that [s]he
engaged in protected opposition to discrimination, (2)
that a reasonable employee would have found the
challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse action.” E.E.O.C. v.
C.R. England, Inc., 644 F.3d 1028, 1051 (10th
Cir.2011) (internal quotation marks and citations
omitted). Because Ms. Morgan offers no direct evidence of discrimination, the court analyzes her retaliation claim under the burden-shifting framework delineated in McDonnell Douglas. Id. Under this
framework, a plaintiff must first make out a prima
facie case of discrimination. McDonnell Douglas, 411
U.S. at 802. After the plaintiff has made the requisite
showing, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its
actions. Id. at 802–03. If the defendant proffers such a
reason, the burden then shifts back to the plaintiff to
show that the defendant's stated reasons are merely
“pretextual.” Id. at 804–05.
Ms. Morgan alleges that on October 7, 2010, she
told Wendy Runquist, the Assistant Store Manager,
that she would be filing a complaint with the EEOC.
(See Doc. # 14–14 at 5 of 17). On October 9, 2010, Mr.
Serpas demoted Ms. Morgan from a Lead Cashier to a
Cashier because she was not willing to work until 9:30
p.m. to close the store. (See Personnel Action Request
Form, Exhibit Y to Defendant's Motion (Doc. #
14–37); Doc. # 14–25 at ¶ 21). After her demotion,
Ms. Morgan filed an EEOC Charge of Discrimination
on November 23, 2010. (See U.S. Equal Employment
Opportunity Commission Intake Questionnaire, Exhibit EE to Defendant's Motion (Doc. # 14–43), EEOC
Charge of Discrimination, Exhibit FF to Defendant's
Motion (Doc. # 14–44)). Mr. Serpas received Ms.
Morgan's Charge of Discrimination on or about No-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 12
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
vember 23, 2010. (See Doc. # 14–25 at ¶ 32, Doc. #
14–44). Ms. Louvar received Ms. Morgan's Charge of
Discrimination on or about December 1, 2010. (See
Doc. # 14–6 at ¶ 16). The EEOC investigated and
found no probable cause. (See Doc. # 14–6 at ¶ 15).
Ms. Morgan told no one other than Ms. Runquist of
her intention to file an EEOC complaint. (See Doc. #
14–14 at 5 of 17). Ms. Runquist was not a decision-maker in Ms. Morgan's demotion. (See id.; Doc.
# 14–25 at ¶ 22). The decision-maker, Mr. Serpas, did
not know that she intended to file a complaint with the
EEOC. (See Doc. # 14–25 at ¶ 32). Ms. Morgan has
not presented any evidence that Mr. Serpas and Ms.
Louvar, the individuals who demoted her, were aware
of any protected activity prior to October 9, 2010, the
date she was demoted.
Ms. Morgan also filed a complaint with the Colorado Department of Labor and Employment
(“CDLE”) regarding “time shaving and wage theft.”
(See Doc. # 14–14 at 10 of 17). The CDLE conducted
an audit of the S. Wadsworth Store on April 7, 2011
and made no adverse findings. (See Doc. # 14–6 at ¶¶
18–19; Doc. # 14–14 at 10 of 17). Ms. Louvar did not
know the audit was the result of a complaint filed by
Ms. Morgan until Ms. Morgan filed her complaint in
February 2012. (See Doc. # 14–6 at ¶ 18). Mr. Serpas
never knew that Ms. Morgan made a complaint to the
CDLE until this lawsuit commenced. (See Doc. #
14–25 at ¶ 33). In sum, Ms. Morgan cannot make out a
prima facie case for her retaliation claims because she
has not demonstrated a causal connection between the
protected activity and a materially adverse action.
IV. Conclusion
Ms. Morgan fails to meet her burden on summary
judgment to establish a prima facie case as to any of
her claims.FN1 Goodwill is entitled to summary judgment on Ms. Morgan's discrimination claim under the
ADA, Ms. Morgan's claim of discrimination based on
her race and/or national origin, and her claims for
retaliation. Accordingly,
FN1. As the court determines that Ms. Morgan has not established a prima facie as to
any of her claims, it need not reach at this
time Goodwill's additional arguments that
she was not qualified to perform the Lead
Cashier position and that she did not present
evidence that Goodwill's legitimate,
non-discriminatory reasons for its employment decisions were a pretext for discrimination.
*11 IT IS RECOMMENDED that “Defendant's
Motion for Summary Judgment Dismissing All of
Plaintiff's Claims” (filed April 30, 2013) (Doc. # 14)
be GRANTED and summary judgment enter on the
Complaint in favor of Defendant and against Plaintiff.
Advisement to the Parties
Within fourteen days after service of a copy of the
Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed
findings and recommendations with the Clerk of the
United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re
Griego, 64 F.3d 580, 583 (10th Cir.1995). A general
objection that does not put the District Court on notice
of the basis for the objection will not preserve the
objection for de novo review. “[A] party's objections
to the magistrate judge's report and recommendation
must be both timely and specific to preserve an issue
for de novo review by the district court or for appellate
review.” United States v. One Parcel of Real Property
Known As 2121 East 30th Street, Tulsa, Oklahoma, 73
F.3d 1057, 1060 (10th Cir.1996). Failure to make
timely objections may bar de novo review by the
District Judge of the Magistrate Judge's proposed
findings and recommendations and will result in a
waiver of the right to appeal from a judgment of the
district court based on the proposed findings and
recommendations of the magistrate judge. See Vega v.
Suthers, 195 F.3d 573, 579–80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's
recommendation de novo despite the lack of an ob-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 13
Not Reported in F.Supp.2d, 2013 WL 6728777 (D.Colo.)
(Cite as: 2013 WL 6728777 (D.Colo.))
jection does not preclude application of the “firm
waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d
901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order,
cross-claimant had waived its right to appeal those
portions of the ruling); Ayala v. United States, 980
F.2d 1342, 1352 (10th Cir.1992) (by their failure to
file objections, plaintiffs waived their right to appeal
the Magistrate Judge's ruling). But see, Morales–Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir.2005) (firm waiver rule does not apply when the
interests of justice require review).
DATED at Denver, Colorado, this 19th day of
July, 2013.
D.Colo., 2013
Morgan v. Goodwill Industries of Denver, Inc.
Not Reported in F.Supp.2d, 2013 WL 6728777
(D.Colo.)
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?