Montano v. Ricoh USA, Inc.

Decision Date17 September 2020
Docket NumberCivil Action No. 1:18-cv-02470-RM-KLM
PartiesGEORGE MONTANO, Plaintiff, v. RICOH USA, INC., Defendant.
CourtU.S. District Court — District of Colorado

Judge Raymond P. Moore

ORDER

This employment case is before the Court on Defendant's Motion for Summary Judgment (ECF No. 70), which has been fully briefed (ECF Nos. 77, 93). The Court grants the motion for the reasons below.

I. LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in his favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). Whether 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 is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). 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 jury could return a verdict for either party. Anderson, 477 U.S. at 248.

II. BACKGROUND

Plaintiff began working for Defendant as a service delivery manager in March 2012 and was promoted to the position of global service delivery manager in December that year. (ECF No. 94 at ¶¶ 2, 3.) He started working on Defendant's account with Intuit in February 2017, and in April 2017, he was promoted to managing the account and overseeing the entire performance of Defendant's contract with this client. (Id. at ¶¶ 13, 15, 20.) In this management role, Plaintiff reported to Rob Schwanz. (Id. at ¶ 16.) Catherine Clement also worked on the Intuit account, but she was a co-worker and not Plaintiff's supervisor. (Id. at ¶¶ 17, 19.) At a February 2018 meeting, Mr. Schwanz informed Plaintiff that Defendant had received negative feedback from Intuit about his performance. (Id. at ¶¶ 22, 23.) Later that month, Plaintiff received a jury summons. (Id. at ¶ 24.)

Plaintiff admits that he did not want to be selected for a jury and felt that it was "really bad timing" because he was trying to fix the Intuit account. (Id. at ¶ 31.) He was selected to serve on the jury for a murder trial that lasted six-and-a-half weeks. (Id. at ¶ 29.) Before his selection, Plaintiff told Mr. Schwanz he did not want serve on the jury, and Mr. Schwanz sent Plaintiff a text message stating, "Good luck getting out of it." (Id. at ¶¶ 32, 33.) Plaintiff admitsthat Mr. Schwanz never told him, coached him, or pressured him to try to get out of jury duty. (Id. at ¶ 35.)

Plaintiff also discussed his jury summons with Ms. Clement. (Id. at ¶ 36.) According to Plaintiff, she told him he could get out of it by "tell[ing] them things that they don't like" and suggested that he "tell them you don't like cops." (Id. at ¶ 36.) The day after that discussion, Plaintiff and Ms. Clement exchanged the following text messages:

Ms. Clement: Please tell me your not on a jury! The MOW meeting went well. We had a full house: Elicia, Rafael, Gerry, Ali and Lance Bell. I wish you would have been there.. Lance Bell said great things about Richo being a good partner and how happy Rafael is!!! Fill u in later!!
Plaintiff: [O]h great! I'm very happy to get that feedback from Lance! Especially in front of Elicia. Can you believe they are still doing jury selection? I thought there were 70 people for one case. Turns out, there are 150 people. Very high profile case. One more day of selection and I should be done. I hop[e].
Ms. Clement: Just remember my coaching! Image materials not available for display.
Ms. Clement: Elicia even said to Lance "Can I have I told you so rights!
Plaintiff: Lol. Nice

(Id. at ¶ 39.)

In the days that followed, Plaintiff and Ms. Clement exchanged additional related text messages:

Ms. Clement: Happy Monday! Please don't get picked!!!! Putting the review together. I really need some wins/challenges from the mail shipping area
Ms. Clement: Hello Juror! Sorry we didn't connect last week. I will do the team call today and operations call tomorrow. Hopefully we can talk this week.
Plaintiff: Ok sounds good. I will give you a call after court today. Fun fun...
Ms. Clement: It's all your fault! You ginxed me! I got a jury summons today!!!
Plaintiff: Omg! That is funny.. don't get picked! Lol
Ms. Clement: Oh I won't!

(Id. at ¶ 40.)

Plaintiff emailed his team to let them know he would be serving on the jury for several weeks, and he advised them that he would check emails in the mornings and evenings and that they should reach out to Mr. Schwanz, Ms. Clement, or local managers with any issues needing attention. (Id. at ¶ 43.) During his jury service, Plaintiff had multiple communications by phone and text message with Mr. Schwanz and Ms. Clement. (Id. at ¶¶ 51, 52.) Defendant paid Plaintiff is full base salary for the duration of his jury service, and he returned to work on April 6, 2018. (Id. at ¶¶ 30, 55.)

Later that month, Intuit requested that a well-liked employee be removed from its account, and Plaintiff was tasked with informing the employee and handling the matter "with sensitivity." (Id. at ¶¶ 56, 59.) Although Ms. Clement had suggested handling the matter with a three-way phone call, Plaintiff assigned the task to a local manager who could deliver the news in a face-to-face meeting with the employee. (Id. at ¶ 60.) Intuit later expressed disappointment at how the removal was handled. (Id. at ¶ 62.)

In May 2018, Plaintiff received two write-ups from Mr. Schwanz on verbal warning documentation forms, the first referring to his negative feedback from Intuit discussed in February 2018,1 and the second referring to his handling of the removal of the employee from the Intuit account. (Id. at ¶ 64.) At the end of May, Plaintiff took a medical leave of absence.(Id. at ¶ 69.) He received twelve weeks of leave pursuant to the Family Medical Leave Act ("FMLA"), which ended on August 23, 2018. (Id. at ¶ 71.) According to Defendant, he was then placed on short-term disability leave through October 19, when his approved leave ended. (Id. at ¶ 72; ECF No. 70 at 7, 29.)

Meanwhile, in June, Intuit requested that Plaintiff be removed from managing its account. (ECF No. 94 at ¶ 75.) The following month, a new manager was selected to replace Plaintiff, and on July 9, Mr. Schwanz informed Plaintiff, who was still on medical leave, that he had been removed from the Intuit account. (Id. at ¶¶ 78, 79.) After this conversation, Plaintiff did not contact Mr. Schwanz or any other member of Defendant's management to discuss his employment. (Id. at ¶ 93.)

On July 27, 2018, Plaintiff's counsel sent Defendant a demand letter, raising concerns about how Plaintiff was treated with respect to his jury service. (Id. at ¶ 84.) Although this prompted an investigation by Defendant, Plaintiff did not meaningfully participate in it. (Id. at ¶¶ 87, 88.) The investigation concluded that no policy violations had occurred. (Id. at ¶ 90.)

On August 23, 2018, Plaintiff initiated this lawsuit in the Boulder County District Court, alleging that he had been actually and constructively discharged. (Id. at ¶¶ 91, 92.) Meanwhile, he continued to represent that he was on a leave of absence. The day after the lawsuit was filed, Plaintiff sent a work email to a colleague stating that he was "currently on LOA from Ricoh for some health stuff." (Id. at ¶ 95.) And the following month, in a request to have his health insurance reinstated, he stated that he was "still officially on LOA." (Id. at ¶ 96.) In November, Plaintiff received his performance bonus for the period ending in September 2018. (Id. at ¶ 101.) He would not have been eligible for that payment unless he was still employed at the end of September. (Id. at ¶ 102.) Nor would he have been eligible for Defendant's health insurance,which he maintained through December 2018, were he not an employee of Defendant. (Id. at ¶¶ 97, 98.)

On December 5, 2018, Defendant sent Plaintiff a letter stating that according to its records, he had been on a leave of absence since June, and that if Defendant did not hear from him by December 12, his employment would be administratively terminated. (Id. at ¶ 103.) When Defendant did not receive a response, it sent a follow-up letter on December 13, stating that his termination was effective as of that date. (Id. at ¶ 104.)

Plaintiff asserts eight claims for relief related to his separation from Defendant, including Colorado statutory claims, an FMLA claim, and common law claims for wrongful termination, breach of contract, and promissory estoppel. In its motion for summary judgment, Defendant argues that Plaintiff is "attempt[ing] to leverage his jury service as a convenient excuse for his performance issues and refusal to return to work," and that it never terminated him; rather, it "accepted his voluntary resignation after he failed to return from medical leave." (ECF No. 70 at 2-3.)

III. ANALYSIS
A. Count I: Violation of Colo. Rev. Stat. § 13-71-134

Plaintiff asserts claims for illegal harassment and wrongful termination under the Colorado Uniform Jury Selection and Service Act ("JSSA"), Colo. Rev. Stat. § 13-71-134, which generally prohibits an employer from harassing, threating, or coercing an employee...

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