Mares v. CO Coalition for the Homeless ( 2021 )

Appellate Case: 21-1001 Document: 010110615417 Date Filed: 12/07/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 7, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
LISA MARES,
Plaintiff - Appellant,
v. No. 21-1001
(D.C. No. 1:19-CV-03144-MEH)
COLORADO COALITION FOR THE (D. Colo.)
HOMELESS,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and BRISCOE, Circuit Judges.
_________________________________
Plaintiff-Appellant Lisa Mares appeals from the district court’s grant of
summary judgment. Ms. Mares argues that the district court failed to recognize that
her termination was caused by her use of Federal Medical and Leave Act (FMLA)
leave. Aplt. Br. at 52. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
Ms. Mares was hired by the Colorado Coalition for the Homeless (CCH) in
2006. 1 JA 6. Ms. Mares reviewed and signed the CCH employee handbook when
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-1001 Document: 010110615417 Date Filed: 12/07/2021 Page: 2
she was hired. 1 JA 59. The handbook included CCH’s attendance policy, which
required an employee to provide notice of an absence and explained that unexcused
absences may result in termination. 1 JA 84–85.
In 2017, as a result of several domestic violence incidents, Ms. Mares took
substantial time off. See 1 JA 61–62. By October 9, 2017, Ms. Mares had exhausted
her paid time off. 1 JA 98. Ms. Mares subsequently had eleven unexcused absences
from October 9 through October 23, 2017. 1 JA 98, 133. On October 24, 2017, Ms.
Mares was certified for FMLA leave. 1 JA 109–10. On November 9, 2017, Ms.
Mares’s psychiatrist cleared her to return to work immediately. 1 JA 112–15. Ms.
Mares failed to show up to work on November 10, 2017. 1 JA 122. Ms. Mares was
also absent the following week. 1 JA 129–31, 133.
Ms. Mares was put on administrative leave on November 17, 2017. 1 JA 133.
On November 20, 2017, Ms. Mares’s supervisor recommended that her employment
be terminated due to her excessive unexcused absences. 1 JA 133. Ms. Mares was
subsequently terminated. 1 JA 67. Ms. Mares alleges that CCH terminated her in
violation of the Americans with Disabilities Act and the FMLA. 1 JA 5. The district
court granted CCH’s motion for summary judgment. 3 JA 364–84. On appeal, Ms.
Mares argues that the district court erred in holding that she had not provided proper
notice of her need for FMLA leave and that she had not shown that her termination
was related to the exercise of her FMLA rights.
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Discussion
We review the district court’s grant of summary judgment de novo. Throupe
v. Univ. of Denver, 988 F.3d 1243, 1250 (10th Cir. 2021). “In order to prevail on an
FMLA interference claim, the employee must show that she was entitled to FMLA
leave and that some action by the employer, such as termination, interfered with her
right to take that leave.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1006
(10th Cir. 2011). However, “[i]f dismissal would have occurred regardless of the
request for an FMLA leave, . . . an employee may be dismissed even if dismissal
prevents her exercise of her right to an FMLA leave.” Bones v. Honeywell Int’l,
Inc., 366 F.3d 869, 877 (10th Cir. 2004). An interference claim may be defeated if
an employer can show that the employee “failed to give proper notice to [the
employer] under the FMLA.” Id. Additionally, an interference claim may be
defeated if the employer can demonstrate “that it terminated [the employee] because
of her violation of the company’s notice-of-absence policy rather than her taking of
FMLA leave.” Twigg, 659 F.3d at 1007.
Ms. Mares was approved for and received FMLA leave from October 24 to
November 9, 2017. 1 JA 109–10, 114. Ms. Mares’s FMLA certification also
provided that she was incapacitated from approximately October 1 to October 24,
2017, when Ms. Mares had several unexcused absences. See 1 JA 63, 113.
However, she was also absent without notice the week after November 9, 2017. See
1 JA 129–31. While Ms. Mares did have approval for intermittent FMLA leave after
November 9, 2017, in the event of future “flare-ups,” 1 JA 114, she was still required
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to give CCH notice. 1 JA 90. She failed to do so. See 1 JA 129–31. Therefore,
these absences violated CCH’s attendance policy. See 1 JA 84–85. We agree with
the district court that the employer was not required to discern that Ms. Mares sought
to comply with the notice requirement or sought FMLA leave. See 3 JA 376–77;
Twigg, 659 F.3d at 1008–09. Nor does the record contain any significantly probative
evidence that CCH’s actions were related to her FMLA leave. See Jones v. Denver
Pub. Schs., 427 F.3d 1315, 1319 (10th Cir. 2005).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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No. 21-1001, Mares v. Colorado Coalition for the Homeless
BRISCOE, Circuit Judge, concurring.
I concur, but write separately to offer my reasoning as to why the district court
was correct in granting summary judgment in favor of defendant CCH on Mares’ claim
that CCH interfered with her rights under the Family and Medical Leave Act (FMLA).
The FMLA entitles “[a]n eligible employee”1 to take up to twelve weeks of unpaid
leave “[b]ecause of a serious health condition that makes the employee unable to
perform” his or her position. 29 U.S.C. § 2612(a)(1)(D); see Dewitt v. Southwestern Bell
Tel. Co., 845 F.3d 1299, 1318 (10th Cir. 2017). Under the FMLA, leave “may [also] be
taken intermittently or on a reduced leave schedule when medically necessary.” 29
U.S.C. § 2612(b)(1).
To help ensure that eligible employees can exercise their rights under the FMLA,
Congress has, in pertinent part, prohibited employers from (1) “interfer[ing] with,
restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided”
under the FMLA, 29 U.S.C. § 2615(a)(1), and (2) “discharg[ing] or in any other manner
discriminat[ing] against any individual for opposing any practice made unlawful by” the
FMLA, 29 U.S.C. § 2615(a)(2). Consistent with these statutory provisions, we “ha[ve]
recognized two theories of recovery under § 2615(a): an entitlement or interference
theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising from
1
The phrase “eligible employee” is defined as “an employee who has been
employed . . . (i) for at least 12 months by the employer with respect to whom leave is
requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with
such employer during the previous 12-month period.” 29 U.S.C. § 2611(2). It is
undisputed that Mares was an “eligible employee” of CCH.
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§ 2615(a)(2).” Dalpiaz v. Carbon Cty., Utah, 760 F.3d 1126, 1131 (10th Cir. 2014)
(quotation marks omitted).
In this case, Mares asserts a claim of FMLA interference. “To establish a claim of
FMLA interference under § 2615(a)(1), an employee must show (1) that she was entitled
to FMLA leave, (2) that some adverse action by the employer interfered with her right to
take FMLA leave, and (3) that the employer’s action was related to the exercise or
attempted exercise of her FMLA rights.” Id. at 1132 (quotation marks omitted). As these
elements make clear, “an interference claim arises when an adverse employment decision
is made before the employee has been allowed to take FMLA leave or while the
employee is still on FMLA leave.” Id. “If the employee can demonstrate that the first
two elements of interference are satisfied, the employer then bears the burden of
demonstrating that the adverse action was not related to the exercise or attempted
exercise of [the employee’s] FMLA rights.” Id. (quotation marks omitted; brackets in
original). “[I]f an employer presents evidence that an employee was dismissed for her
failure to comply with the employer’s absence-notification policy, this is sufficient to
demonstrate the termination was not legally ‘related to’ the exercise of FMLA leave,
even if the employee’s absences were caused by a requested medical leave.” Id. at 1132–
33.
The district court assumed that Mares could satisfy the first element of her
interference claim. More specifically, the district court noted that “the record
establishe[d] that [Mares] was, in a sense, ‘preapproved’ for FMLA leave based on her
psychiatrist’s statements concerning ongoing and regular occurrences of incapacitation,
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during which she could not work.” JA, Vol. III at 374. The district court therefore
“assume[d] that, if properly requested, she could have received FMLA leave for her
absences beyond November 9, 2017.” Id. But the district court concluded that there
were no genuine issues of material fact regarding the second and third elements of the
interference claim, and that CCH was entitled to summary judgment in its favor on the
interference claim.
In her appeal, Mares challenges, in pertinent part, the district court’s conclusion
that no reasonable juror could find in her favor on the third element of her FMLA
interference claim. The third element of an FMLA interference claim, as noted, requires
the plaintiff to establish that the employer’s action was related to the exercise or
attempted exercise of the plaintiff’s FMLA rights. The district court noted that
“regardless of the FMLA certification (which reasonably could be interpreted as clearing
[Mares] for work commencing November 10, 2017),” Mares “knew CCH expected her
back to work in mid-November . . . and kept promising (sometimes daily) CCH that her
return was imminent,” but that “several weeks passed with no word from” her “and no
request for leave.” Id. at 375. “Even through the date of her termination,” the district
court noted, Mares “never even notified CCH of her desire for any type of leave.” Id.
at 376. The district court concluded that the undisputed evidence established that “CCH
had a facially reasonable basis for the termination: violation of [its] attendance policy.”
Id. at 377. In other words, the district court stated that it “f[ou]nd no material evidence of
any other reason for the termination except violation of the CCH attendance policy.” Id.
at 378.
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The record on appeal fully supports the district court’s determination. CCH’s
Employee Handbook included an “Attendance and Punctuality” provision that required
Mares to notify her supervisor “no later than one hour prior to [her] assigned starting
time” if she could not “report to work by [her] assigned starting time.” Id., Vol. I at 84.
Notably, CCH’s “Attendance and Punctuality” provision expressly stated: “Because of
the disruption caused by no show/no calls, even one no show/no call constitutes
misconduct, and the offending employee may be subject to disciplinary action, up to and
including termination of his/her employment.” Id. at 84–85. The evidence in the record
is undisputed that Mares violated this policy every workday between Monday,
November 13, 2017, and Thursday, November 16, 2017, when her supervisor placed her
on administrative leave (and that Mares had previously and repeatedly violated this
policy prior to obtaining approved FMLA leave). When Mares’ supervisor terminated
Mares’ employment on November 20, 2017, she prepared a “Memorandum of
Termination” that noted she was terminating Mares’ employment “[d]ue to excessive
unexcused absences.” Id. at 133.
I therefore agree with the district court that no genuine issues of material fact
existed with respect to the third element of Mares’ interference claim, and that reasonable
jurors could not find in Mares’ favor on this element. As a result, I find it unnecessary to
address Mares’ arguments concerning the second element of her interference claim.
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