The federal appeals court based in Denver has concluded the coroner for Adams and Broomfield counties had legitimate performance-related reasons for firing an employee and did not, as alleged, retaliate against her for taking medical leave.

Tiffany Litzsinger, who worked for the coroner’s office between 2013 and 2018, claimed that Chief Coroner Monica Broncucia-Jordan terminated Litzsinger for taking time off from her job pursuant to the Family and Medical Leave Act. Litzsinger also charged Broncucia-Jordan with wanting to avoid accommodating Litzsinger’s medical needs in the future.

The coroner countered that Litzsinger had a history of poor performance and violated the terms of her probation through her personal Internet usage during work hours. On Monday, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit sided with the coroner.

“While it is likely true that under normal circumstances an employee would not be fired for intermittent personal use of the Internet, Litzsinger’s circumstances were not normal,” wrote Chief Judge Timothy M. Tymkovich. “Unlike other employees, Litzsinger was on probation precisely because she excessively used the Internet for reasons unrelated to work.”

Litzsinger was an investigator for the coroner’s office. She suffered from depression and anxiety, and had been seeing a counselor since 2012. In June 2018, Litzsinger’s primary physician reportedly diagnosed her with panic attacks and anxiety, and a physician assistant recommended she take medical leave. 

“Ms. Litzsinger did not request medical leave from the coroner at that time for fear of retaliation because she would be considered a problem,” Litzsinger wrote in her lawsuit.

When the coroner’s office brought in Nicoletti-Flaghter Associates, a counseling and trauma service specializing in public safety employees, Litzsinger met with one of their psychologists as well. The psychologist also recommended Litzsinger take unpaid leave pursuant to the FMLA.

After Litzsinger refused to examine a body on Aug. 3, she called the coroner to say that she was “burnt out and that Nicoletti was going to let (Broncucia-Jordan) know.” The day Litzsinger was to meet with the coroner about the Aug. 3 incident, she went to the emergency room for chest pain and ultimately took a brief medical leave.

Litzsinger pointed to an email Broncucia-Jordan sent to Nicoletti-Flaghter after the Aug. 3 incident as evidence that the coroner believed Litzsinger was faking a disability, and that Broncucia-Jordan was actually preparing to retaliate against her for taking leave.

“I implemented this mental health program through your organization to promote employee resiliency. It is obviously highly suspect that this employee was going to try to abuse this,” Broncucia-Jordan wrote, in reference to Litzsinger.

When Litzsinger returned to work, Broncucia-Jordan was ostensibly concerned about Litzsinger falling behind on her assignments and placed her on six months of probation. One of the conditions was that Litzsinger would refrain from personal Internet use while at work. According to Litzsinger, she only used the Internet for business reasons for the next two weeks, except for one occasion where she helped her son while he was experiencing a power outage. Broncucia-Jordan fired her anyway on Sept. 16.

Writing to the 10th Circuit, Litzsinger characterized the probation as a “set up” to mask the real reason for terminating her.

The coroner countered with a fuller picture about Litzsinger’s performance problems. Litzsinger allegedly falsified her time cards. She slept during her evening shifts. She spent at least 60 to 90 minutes per shift on her personal Internet use.

“You have every reason to terminate me right now,” Litzsinger acknowledged to Broncucia-Jordan at the time she was put on probation.

The Adams County Attorney’s Office pointed out that other employees had taken many more hours of unpaid leave than Litzsinger – 945 hours and 595 hours in the case of two workers – without being terminated. Instead, it was Litzsinger’s alleged probation violations, namely visiting the Internet to look at “Facebook, news articles, apartments for rent, and houses for sale,” that prompted her firing.

“No one disputes that her job was demanding or stressful. No one disputes that she had certain skills that were valuable for her job,” Assistant County Attorney Michael A. Sink told the appeals panel during oral arguments. “The coroner had a legitimate business concern that she was returning to a recent history of personal Internet usage.”

Sink also elaborated on Broncucia-Jordan’s email to Nicoletti-Flaghter, arguing the coroner was merely expressing that the work-provided counseling service should let other medical providers handle FMLA leave requests.

Robert M. Liechty, representing Litzsinger, said his client had “cleaned up her act” while on probation and that Facebook was a common tool in the office for death investigations.

The 10th Circuit panel determined that a jury would not be able to find that Broncucia-Jordan fired Litzsinger for ulterior reasons, despite the coroner’s email that Litzinger was trying to “abuse” the work-provided counseling.

“(T)he Coroner’s comments reflect frustration with the way Litzsinger utilized Nicoletti-Flater, not with her disability or the fact that she took FMLA leave. The Coroner’s email also does not indicate a desire to terminate or otherwise discipline Litzsinger in retaliation for taking FMLA leave,” Tymkovich wrote. 

He added that Broncucia-Jordan had unequivocally told Litzinger to avoid personal Internet sites on the job and to ask if she needed clarification.

“Given these clear terms, Litzsinger plainly violated her probation” by visiting websites unrelated to her work, Tymkovich noted.

The case is Litzsinger v. Adams County Coroner’s Office.