Wennerstrom v. City of Denver
| Decision Date | 09 April 2021 |
| Docket Number | Civil Action No. 19-cv-03251-NYW |
| Parties | COURTNEY WENNERSTROM, Plaintiff, v. CITY & COUNTY OF DENVER, Defendant. |
| Court | U.S. District Court — District of Colorado |
This matter comes before the court on Defendant City and County of Denver's ("Defendant" or the "City") Motion for Summary Judgment (or "Motion"), filed October 9, 2020. [#22]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes, see [#13], and concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon review of the Motion and associated briefing, the applicable case law, and the record before the court, I GRANT the Motion for Summary Judgment.
The court draws the following material facts from the record before the court. These material facts are undisputed for purposes of the Motion.
1. Plaintiff Courtney Wennerstrom ("Plaintiff" or "Ms. Wennerstrom") is a 46-year-old resident of Denver, Colorado, who was diagnosed with fibromyalgia by the Colorado
Fibromyalgia Clinic in or about December 2017, though she experienced symptoms years earlier. See [#22-2 at 41:7-42:23, 194:16-19;1 #26-2 at ¶¶ 3-4, 12].
2. According to Ms. Wennerstrom, her fibromyalgia causes daily pain, grogginess, fatigue, exhaustion, muscle tension, nausea, and anxiety. [#22-2 at 125:1-4, 196:24-25, 198:19-25, 200:7-18, 247:17-248:9, 248:18-249:2; #26-2 at ¶¶ 16, 18, 23, 25, 26].
3. Approximately once or twice per month, Ms. Wennerstrom experiences fibromyalgia flare ups, lasting hours, days, or months,2 that cause excruciating pain, severe exhaustion, and make it difficult for her to function, and extreme heat (over 92 degrees) can exacerbate her symptoms. See [#22-2 at 125:9-11, 196:21-197:5, 200:4-201:23, 247:17-25; #26-2 at ¶¶ 14, 18, 23-24].
4. When experiencing a flare up, Ms. Wennerstrom has difficulty running errands, sleeping, and exercising. See [#22-2 at 196:21-197:5, 200:4-201:6, 201:14-23, 247:17-249:2; #26-2 at ¶¶ 17-20, 23-24].
5. Despite her occasional flare ups, no doctor has prescribed Ms. Wennerstrom any working restrictions; indeed, she "function[s] very well" as her fibromyalgia only occasionally (roughly two-percent of the time) interferes with her ability to work; does not severely restrict herfrom performing any activity or even restrict her from performing any activity on a regular basis; and does not cause her to miss work. See [#22-2 at 124:12-125:4, 200:2-6, 201:7-13, 202:16-22, 243:5-7].3
6. To manage her fibromyalgia, Ms. Wennerstrom avoids activities that may aggravate her symptoms, including avoiding extreme heat; and takes medication; diets; exercises; gets massages; performs yoga; and meditates. See [#22-2 at 197:11-24; #26-2 at ¶ 14].
7. On March 1, 2018, the City offered Ms. Wennerstrom "the probationary, limited term position of Operations Assistant in the Department of Public Health and Environment, Denver Animal Protection Division ('DAP')"; her working title was "Community Organizer" for the City's Pets for Life program ("PFL"). See [#22-1; #22-2 at 55:18-25; #22-3; #22-7; #26-6].
8. Ms. Wennerstrom reported directly to Community Outreach Coordinator Julian Wolff ("Mr. Wolff"), who reported to Community Partnerships Manager Jill Brown ("Ms. Brown"), and Ms. Brown reported to Director Alice Nightengale ("Ms. Nightengale"). See [#22-2 at 76:4-11; #22-4 at 7:7-16, 22:25-23:3; #22-5 at 8:7-10, 13:19-25; #26-2 at ¶¶ 36-37, ].
9. As Community Organizer, DAP assigned Ms. Wennerstrom to the Montbello neighborhood, a new area within PFL, and tasked Ms. Wennerstrom with establishing a presence in the Montbello neighborhood by going door-to-door to help underserved residents care for theirpets. See [#22-2 at 59:6-8, 90:4-19, 91:2-14, 100:11-15; #22-3; #22-4 at 11:10-22, 13:4-13, 33:22-34:23, 43:15-24, 70:3-7, 73:7-24, 87:2-8; #22-6 at 18:6-15, 70:1-6; #22-16 #26-2 at ¶ 56].
10. To better achieve PFL's outreach mission, Mr. Wolff and Ms. Brown established a set number of proactive outreach hours, 16.5, that Ms. Wennerstrom needed to achieve each week based on recommendations from the Humane Society of the United States. See [#22-4 at 32:5-11, 70:15-71:2, 74:16-75:14; #22-5 at 110:7-112:17; #22-17; #22-18; #26-2 at ¶¶ 101, 103].
11. Ms. Wennerstrom struggled to meet her weekly 16.5 hours of proactive outreach and attributed her shortcoming to too many "one-off tasks," such as transporting animals to surgeries, and extreme heat—though DAP encouraged Ms. Wennerstrom to plan her outreach around the hottest hours of the day. See [#22-2 at 115:4-9, 202:16-203:20, 204:14-25, 221:4-17; #22-6 at 60:24-61:16; #22-21; #22-25; #26-2 at ¶¶ 105-07, 110].
12. Ms. Wennerstrom also had issues with tardiness, data entry, adhering to DAP's dress code, scheduling client appointments, coordinating the training of an intern, and attending mandatory trainings—the first due to a fibromyalgia flare up, though she reported to work on time, and the second due to an ill dog, though she again reported to work on time. See [#22-2 at 124:1-22, 127:23-128:2, 131:10-20, 134:8-23, 139:20-140:10, 142:1-143:20, 145:15-23; #22-4 at 46:6-21, 47:2-7, 48:14-51:4, 50:11-21; #22-5 at 38:15-18, 40:20-23, 70:10-19, 72:22-73:2, 75:16-76:9; #22-6 at 86:13-87:2, 89:10-22, 93:8-94:3; #22-8; #22-12; #22-13 at 11:10-15; #26-9].4
13. In addition, both Ms. Brown and Mr. Wolff perceived issues with Ms. Wennerstrom's trustworthiness and honesty, given her failure to take accountability for her mistakes and shortcomings and her representations on both her resume and job application that sheheld a Ph.D. in English when in fact she had not completed her dissertation.5 See [#22-4 at 44:17-47:18, 48:3-49:8, 50:9-21, 51:23-52:19, 90:16-25; #22-5 at 73:17-74:4, 75:16-76:23, 122:8-19; #22-14 at 2; #22-15 at 1, 7].
14. Mss. Brown and Nightengale and Mr. Brown, as well as a Human Resources representative, engaged in several conversations regarding Ms. Wennerstrom's perceived performance issues. [#22-4 at 44:17-47:18; #22-5 at 70:10-19, 70:25-71:10, 71:20-72:10, 72:16-21, 73:17-74:4, 122:10-123:3; #22-13 at 5:23-6:25, 12:24-13:16; #26-2 at ¶ 40].
15. Ms. Nightengale, relying on the recommendation of Ms. Brown and Mr. Wolff, terminated Ms. Wennerstrom for "significant performance issues," including tardiness, a dress code violation, lack of accountability, perceived dishonesty and untrustworthiness, and repeated mistakes, on or about July 21 or 23, 2018. See [#22-4 at 44:17-47:18; #22-5 at 70:10-19, 70:25-71:10, 71:20-72:10, 72:16-21, 73:17-74:4, 122:10-123:3; #22-13 at 5:23-6:25, 12:24-13:16; #26-2 at ¶ 40].
16. On or about October 11, 2018, Ms. Wennerstrom submitted a charge of discrimination with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission ("EEOC"), alleging that the City subjected Ms. Wennerstrom to discriminatory working conditions by requiring her to complete proactive outreach hours in extreme heat, which aggravated her fibromyalgia, and then terminated Ms. Wennerstrom because of her fibromyalgia. [#22-31].
17. On November 18, 2019, Ms. Wennerstrom initiated this civil action. See [#1].
Pursuant to Rule 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And this is so when, as here, a defendant moves for summary judgment to test an affirmative defense—the defendant must demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). At all times, the court will "view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant." Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).
To satisfy its burden at summary judgment the nonmovant must point to competent summary judgment evidence creating a genuine dispute of material fact; conclusory statements based on speculation, conjecture, or subjective belief are insufficient. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see also 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998) (). In considering the nonmovant's evidence, the court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165(10th Cir. 2008). Further, the court may consider only admissible evidence, see Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995), though the evidence need not be in a form that is admissible at trial, only the substance must be admissible at trial, see Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016). Indeed, "[t]o determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury." Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).
Pursuant to her operative Amended Complaint, Ms. Wennerstrom asserted four claims...
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