833 F. Supp. 2d 1289
D. Colo.2011Background
- Plaintiff Weil, a former Carecore CDS Representative, started October 2, 2006 and began working from home in 2007.
- Plaintiff received doctor notes in January 2008 requesting restroom breaks as needed; one note expired January 31, 2008.
- Plaintiff took FMLA leave for depression from March 25 to April 7, 2008; she later provided additional medical notes.
- May 30, 2008: Plaintiff received a written warning for improper use of instant messaging, email, and an email discrepancy; she acknowledged some misconduct.
- July 2008: Defendant issued a Final Written Warning regarding disconnected calls; later on July 14 Plaintiff submitted a doctor’s note and FMLA leave commenced.
- During leave, Defendant reviewed technical evidence; August 2008: warnings were rescinded or replaced with Verbal Counseling; Plaintiff’s remote work privilege was reinstated after retraining and then she remained on leave until September 23, 2008.
- Plaintiff was removed from payroll on September 30, 2008, but eligible for re-hire consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADA retaliation prima facie showings | Weil engaged in protected activity against discrimination. | Plaintiff lacked reasonable belief of ADA violation; not protected opposition. | ADA prima facie not established; no protected opposition. |
| FMLA retaliation prima facie showings | Weil’s FMLA leave and subsequent status changes show retaliation. | Actions were not materially adverse and not causally linked. | Plaintiff failed to show adverse action; no FMLA retaliation. |
Key Cases Cited
- Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) (McDonnell Douglas framework to retaliation claims)
- Proctor v. United Parcel Serv., 502 F.3d 1200 (10th Cir. 2007) (applies McDonnell Douglas to ADA retaliation)
- E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011) (protected opposition can be informal complaints)
- Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (adverse action is an objective, harm-defining standard)
- Somoza v. Univ. of Denver, 513 F.3d 1206 (10th Cir. 2008) (liberal definition of adverse action for retaliation)
- Annett v. Univ. of Kan., 371 F.3d 1233 (10th Cir. 2004) (inconvenience alone does not equal adverse action)