Krauss v. Catholic Health Initiatives

• Decision Date: 30 January 2003
• Docket Number: No. 02CA0108.,02CA0108.
• Citation: 66 P.3d 195
• Parties: Debra L. KRAUSS, a/k/a Debra L. Love, Plaintiff-Appellant, v. CATHOLIC HEALTH INITIATIVES MOUNTAIN REGION, d/b/a Penrose Connection, a/k/a Centura Health, a/k/a St. Anthony Central Hospital, Defendant-Appellee.
• Court: Colorado Court of Appeals

66 P.3d 195

Debra L. KRAUSS, a/k/a Debra L. Love, Plaintiff-Appellant, v. CATHOLIC HEALTH INITIATIVES MOUNTAIN REGION, d/b/a Penrose Connection, a/k/a Centura Health, a/k/a St. Anthony Central Hospital, Defendant-Appellee.

No. 02CA0108.

Colorado Court of Appeals, Div. III.

January 30, 2003.

T.W. Cresswell, P.C., T.W. Cresswell, Lakewood, Colorado, for Plaintiff-Appellant.

Kutak Rock LLP, Mark L. Sabey, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge WEBB.

In this employment case, plaintiff, Debra L. Krauss (employee), appeals the summary judgment entered in favor of defendant, Catholic Health Initiatives Mountain Region (employer). She contends disputed issues of material fact exist concerning denial of or interference with her rights under the Family Medical Leave Act (FMLA), retaliation for her exercise of FMLA rights, constructive discharge, and public policy wrongful discharge. We discern no material fact issues and therefore affirm.

Employee was a long-term employee of employer. In early February 2000, she took FMLA leave because of a serious health problem. Employee had not been medically cleared to return to work when her twelve-week FMLA leave entitlement was exhausted. After giving her additional FMLA leave, employer discharged her when she failed to request personal leave or return to work.

Employee then brought this action. The parties agreed to conduct discovery before employer answered. Employer moved to dismiss based in part on employee's deposition. The trial court treated employer's motion as a motion for summary judgment and granted it on all claims.

We review a trial court's decision to grant summary judgment de novo using established standards. Summary judgment is appropriate only if the pleadings and supporting documents demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to establish that no genuine issue of material fact exists, and any doubt should be resolved against the moving party. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Once the moving party shows the absence of any material fact issue, the nonmoving party must demonstrate the existence of such an issue. C.R.C.P. 56(e); Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970). The nonmoving party must make this showing with admissible evidence and cannot rely on either pleadings, Smith v. Mehaffy, 30 P.3d 727 (Colo.App.2000), or argument alone. Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114 (Colo.App.1985).

I. Violation of the FMLA

Employee argues disputed fact issues remain concerning employer's violation of the FMLA. We disagree.

The FMLA guarantees a qualified employee twelve weeks of unpaid leave each year for various reasons, including the employee's serious health problems. 29 U.S.C. §§ 2601-2654 (2002). An employer must reinstate the employee to his or her former position or its equivalent upon the employee's timely return from FMLA leave. 29 U.S.C. § 2614(a)(1).

Under 29 U.S.C. § 2617(a), employees may sue to enforce their FMLA rights on the basis of either the entitlement or interference theory, § 2615(a)(1), or the retaliation or discrimination theory, § 2615(a)(2). Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir.2002).

A. Deprivation of FMLA Rights

Employee first contends employer deprived her of FMLA rights by discharging her while she was on FMLA leave. We disagree.

An entitlement claim involves proof of an FMLA right; the employer's interference with, restraint of, or denial of that right; and resulting prejudice to the employee. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

An employer must give the employee written notice, within one or two days after a leave request, if feasible, when leave is being treated as FMLA leave. 29 C.F.R. § 825.301(c). Further, "If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." 29 C.F.R. § 825.700(a).

In Ragsdale, the Supreme Court assumed the regulatory notice requirement was valid. However, the court invalidated the regulatory penalty that leave taken before designation did not count as FMLA leave, which has no statutory counterpart, because the penalty wrongfully relieves employees from showing actual harm.

Here, employee was hospitalized on February 4, 2000. On February 14, she requested twelve weeks of FMLA leave, retroactively from February 5 until May 5.

On March 23, employer notified employee by letter that her FMLA leave would expire April 1, because she had used some of her FMLA leave before February 5. The letter specified that employee must return to work at that time or obtain a personal leave. Plaintiff did not respond.

On April 4, employer telephoned employee and told her that her FMLA time had expired and she could have additional FMLA leave until May 8, but she needed to either return to work or obtain a personal leave by that date.

Employee received a letter from employer dated April 20 stating that she had to contact employer by May 8 concerning her intention to go on a personal leave or employer would "assume you are not interested in going on a personal leave and your employment with [employer] will be terminated." Again, employee did not respond.

Employer discharged employee on May 11. By then, employee had received more than twelve weeks of FMLA leave since she first took FMLA leave in June 1999 and twelve weeks of FMLA leave since February 5, 2000. Employee was medically unable to return to work until June 5, 2000.

Nevertheless, citing the penalty in 29 C.F.R. § 825.700(a), employee argues her FMLA leave had not been exhausted by May 5 because this leave could not begin to count against her FMLA entitlement until employer gave her notice by the letter of March 23. Ragsdale invalidated § 825.700(a) and therefore defeats this argument.

Accordingly, we conclude the trial court did not err in finding employer discharged employee only after her FMLA leave had been exhausted.

B. Interference with FMLA Rights

Employee next asserts employer interfered with her FMLA rights when her supervisor verbally reprimanded her for absences that another supervisor had approved as intermittent leave under FMLA. She also asserts interference claiming employer failed to give her timely notice that her leave was FMLA leave, misinformed her when her FMLA leave expired, did not explain how it counted her personal time off, did not explain whether it calculated her FMLA leave on a calendar year basis, failed to post information about FMLA rights, and removed FMLA leave forms from her desk. We are not persuaded.

With respect to the verbal reprimand, no disciplinary action was taken against employee. She received no further verbal reprimands concerning leave, and thereafter employer allowed her to take FMLA leave whenever she requested it.

With respect to the other aspects of this claim, even if a factual issue of interference exists, employee agrees that she received more than twelve weeks of FMLA leave before she was discharged, including the twelve weeks of leave that she requested from February 5 to May 5. Hence, employee has not shown prejudice. See Ragsdale, supra.

The regulations that employee cites are inapposite or provide no remedy: 29 C.F.R. § 825.208(c) deals with employers that require paid leave to be counted as FMLA leave; 29 C.F.R. § 825.300 applies to adverse action taken because an employee failed to furnish advance notice of the need to take FMLA leave; and 29 C.F.R. § 825.301 only sets forth general notice requirements.

The record also belies employee's assertion that employer's acts and omissions left her confused about her FMLA rights. Employee requested FMLA leave on more than one occasion. She received general information from employer outlining her FMLA rights and responsibilities when she requested those leaves. Further, she received the two letters from employer notifying her when her FMLA leave would end, what steps she should take to maintain her employment, and the consequences if she failed to do so. Therefore, we conclude employee was adequately informed concerning FMLA leave. See DeLong v. Trujillo, 25 P.3d 1194 (Colo. 2001).

Moreover, employee does not explain how she would have acted differently had employer notified her earlier that it was treating her leave as FMLA leave, posted signs concerning the FMLA, or replaced the FMLA leave forms in her desk. Employee does not dispute that she was medically unable to work from February 4 until June 5. Thus, we further conclude employee could not have acted differently. See, e.g., Hill v. Steven Motors, Inc., 228 F.Supp.2d 1247 (D.Kan. 2002); Kelso v. Corning Cable Systems International Corp., 224 F.Supp.2d 1052 (W.D.N.C.2002); Summers v. Middleton & Reutlinger, P.S.C., 214 F.Supp.2d 751 (W.D.Ky.2002).

Accordingly, we conclude employee failed to raise a fact issue of how she was prejudiced by employer's interference, if any, with her FMLA rights.

C. Retaliation for Exercise of FMLA Rights

Employee next argues she established a prima facie case of retaliation for exercising her FMLA rights because employer denied her request for 1999 Christmas vacation and then terminated her employment in May 2000, while she was on FMLA leave. We disagree. To establish a prima facie case of retaliation, an employee must show assertion of an FMLA right, followed by an adverse employment action, and a causal connection between the assertion and the adverse action. 29 U.S.C. § 2615(a)(2); Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir.1997).

To avoid summary judgment, an employee must raise a genuine issue of material fact on each element of the prima facie case. The burden then shifts to the employer to articulate a legitimate...