Forbes v. Best Buy Co., Inc.

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:23-cv-01574-CNS-MDB Document 52 _ filed 03/28/25 USDC Colorado
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 23-cv-01574-CNS-MDB
COREY CURTIS FORBES,

Plaintiff,

BEST BUY CO., INC.,

Defendant.

ORDER

Plaintiff Corey Forbes objects to United States Magistrate Judge Maritza
Dominguez Braswell’s Recommendation to grant Defendant Best Buy’s motion for
summary judgment. ECF No. 48 (Recommendation); ECF No. 49 (Objection).! The Court
has analyzed Plaintiffs objections, and upon de novo review of the Recommendation,
finds that the objections do not warrant modification or rejection of the Recommendation.
Accordingly, the Court overrules Plaintiffs objections and affirms Magistrate Judge
Dominguez Braswell’s Recommendation as an order of this Court. Best Buy’s motion for

summary judgment is granted.

1 Defendant responded to Plaintiff's objection. See ECF No. 51.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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I. 	SUMMARY FOR PRO SE PLAINTIFF
Magistrate Judge Dominguez Braswell recommends that this Court grant Best
Buy’s motion for summary judgment and dismiss your case. She determined that the
record does not support a claim under either the Colorado Healthy Families and
Workplaces Act or Colorado’s Public Health Emergency Whistleblower Law because,
even though you testified that you were sick between December 20–22, 2021, there is no
evidence that you (a) communicated that information to Best Buy, (b) were approved to
take sick leave when you were scheduled to work between December 20–22, 2021, (c)
were retaliated against for taking sick leave, or (d) were retaliated against for raising any
concerns about health or safety in the workplace. Without such evidence, Defendant is
entitled to summary judgment.
You filed an objection to that Recommendation, essentially disagreeing with the
facts Magistrate Judge Dominguez Braswell considered in reaching her determinations.
After analyzing the arguments raised in your objection and performing a de novo review
of the findings you challenge, the Court is overruling your objections and affirming
Magistrate Judge Dominguez Braswell’s Recommendation. The Court will explain why it
is doing so further below, including a discussion of the legal authority that supports this
conclusion.
II. 	BACKGROUND
A. General Background
Plaintiff is a former Best Buy employee. ECF No. 31, ¶ 2. In November 2021,
Plaintiff took two weeks of paid time off (PTO), from November 14–27, 2025. Id., ¶ 15;
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ECF No. 31-1 (Forbes Dep.) at 66:18–20. Plaintiff reportedly began feeling sick around
November 25, 2021, near the end of his PTO. ECF No. 31, ¶ 16. Consistent with Best
Buy’s sick leave policy, Plaintiff took and failed an online health screening questionnaire,
and he soon received a COVID-19 testing kit from Everlywell, Best Buy’s COVID-19
testing partner. Id., ¶¶ 11, 17–18.
Plaintiff tested positive for COVID-19 on December 8, 2021. Id., ¶¶ 22–23. Plaintiff
received 80.08 hours of COVID-19 testing and sick pay, per Best Buy’s policy. 2 Id., ¶¶
20, 24–25. Best Buy told Plaintiff that the earliest he could end isolation and return to
work was 10 days after he tested positive, and because he tested positive on December
8, 2021, the earliest he could return to work was December 18, 2021. Id., at ¶ 24.
B. Plaintiff’s Absences and Termination of Employment
Plaintiff argues that he was not scheduled to work from December 20–22, 2021,
and was instead on approved sick leave and/or PTO during that time. ECF No. 37 at 5–
7; ECF No. 35-1, ¶¶ 5–7, ECF No. 42, ¶ 6. Magistrate Judge Dominguez Braswell,
however, correctly determined that the record does not support that assertion.
On December 14, 2021, Plaintiff’s supervisor, Anthony Rugg, texted Plaintiff to
inquire when Plaintiff would be returning to work. ECF No. 31-10 at 2. Mr. Rugg stated
that Plaintiff could return to work once he was clear of symptoms, but he could also take
more time off if needed. Id. at 3. Plaintiff responded the next day, indicating he would be
clear of symptoms “this coming Monday,” referring to December 20, 2021. Id. at 4. Mr.
2 Best Buy employees who received a COVID-19 testing kit were given 40.04 hours of testing pay. Upon
testing positive, employees were given an additional 40.04 hours of sick pay. ECF No. 31, ¶¶ 11–12.
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Rugg therefore scheduled Plaintiff to work on December 20, 2021. See ECF No. 31-11
(December 2021 work schedule). Plaintiff could access his work schedule through Best
Buy’s online employee portal, and he would also receive text messages from his
supervisors telling him when to report to work. ECF No. 31, ¶¶ 30–31. Plaintiff did not
report to work on December 20, 2021—which was 25 days after his symptoms began and
12 days after he administered the positive COVID-19 test—nor did he inform Mr. Rugg
that he would be absent. Id., ¶¶ 33–35.
Plaintiff was also scheduled to work December 21, 2021, and he similarly did not
report to work or inform Mr. Rugg that he would be absent. Id., ¶¶ 36–39; ECF No. 31-
11. When Mr. Rugg texted Plaintiff later that day, Plaintiff indicated he would report to
work the next day—December 22, 2021. ECF No. 31-10 at 4. However, Plaintiff once
again did not report to work or inform Mr. Rugg that he would be absent. ECF No. 31, ¶¶
43–45. Instead, Plaintiff texted Mr. Rugg after his shift and informed him that he did not
report to work because he learned that he had an outstanding arrest warrant for unpaid
traffic tickets, so he drove to Sterling, Colorado, to take care of the warrant. ECF No. 31-
10 at 5. Over the course of these three days, Plaintiff never indicated that COVID-19 or
any other illness was the reason for his absence from work. ECF No. 31, ¶¶ 35, 39, 45.
Relying on its job abandonment policy, Best Buy terminated Plaintiff on December
22, 2021. 3 Id., ¶ 54. Plaintiff sought review of his termination through Best Buy’s
3 Best Buy’s attendance policy provides that an employee will be terminated for job abandonment if the
“employee fails to follow the notification process and does not show up for 3 consecutive scheduled shifts.”
The notification process requires that, “[i]f an employee is unable to report to work for his/her shift and/or is
unable to report to work on time for his/her shift, the employee must notify management at least one (1)
hour prior to the start of the scheduled shift.” ECF No. 31, ¶¶ 8–9; ECF No. 31-3.
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termination review process, stating that “I had to miss coming in the morning because
when I was sick I had Court and could not make it to[] court for my speeding tickets due
to Covid. I had a warrant to clear and needed to take care of that.” Id., ¶¶ 55–57. Best
Buy upheld the decision to terminate Plaintiff. Id., ¶ 58.
C. Procedural History
Plaintiff initiated this action on June 21, 2023, alleging that Best Buy fired him in
retaliation for using paid sick leave. ECF No. 1 at 5. Plaintiff brings his claims under the
Colorado Healthy Families and Workplaces Act (HFWA), Colo. Rev. Stat. § 8-13.3-401
et seq., and Colorado’s Public Health Emergency Whistleblower Law (PHEW), Colo. Rev.
Stat. § 8-14.4-101 et seq. Id. Best Buy filed its motion for summary judgment on June 20,
2024, arguing that it terminated Plaintiff for legitimate, nonretaliatory reasons unrelated
to his use of paid sick leave. ECF No. 31 at 2. That same day, Plaintiff filed a motion for
judgment as a matter of law, which was superseded by his motion for summary judgment.
ECF Nos. 33, 35. The Court referred these motions to Magistrate Judge Dominguez
Braswell for initial determination. ECF Nos. 32, 34, 36.
D. Magistrate Judge Recommendation
Magistrate Judge Dominguez Braswell determined that Best Buy is entitled to
summary judgment on Plaintiff’s HFWA and PHEW claims. ECF No. 48 at 8–12. On the
HFWA claim, Magistrate Judge Dominguez Braswell determined that the record does not
support Plaintiff’s claim that Best Buy counted paid sick leave as an absence. She
explained that “there is no evidence that Plaintiff was actually on paid sick leave
December 20–22, 2021. To the contrary, the undisputed evidence shows Plaintiff was
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cleared to return to work on December 18, 2021, and agreed to return to work on
December 20, 2021.” Id. at 10. She next determined that no evidence exists to suggest
that Best Buy terminated Plaintiff because he took COVID-19 sick leave between
December 8 and 19, 2021. Id. (“It was Plaintiff himself who determined he could return to
work on December 20, 2021, and when Plaintiff did not return to work, and did not
communicate his reasons for failing to report to work, Defendant terminated him pursuant
to the attendance policy, not because of the prior COVID-19 leave.” (citations to record
evidence omitted)).
Turning 	to 	Plaintiff’s 	PHEW 	claim, 	Magistrate 	Judge 	Dominguez 	Braswell
determined that Plaintiff did not engage in activity protected by PHEW. ECF No. 48 at 12.
She explained that Plaintiff does not allege, nor does the record show, that Plaintiff raised
a concern about, or opposed any alleged violations of, health or safety rules during his
employment with Defendant. Id. She even found that Plaintiff agreed that Best Buy
followed its sick leave policy and did not force Plaintiff to return to work before he was
ready. Id.
For these reasons, Magistrate Judge Dominguez Braswell recommends granting
Best Buy’s motion for summary judgment on both of Plaintiff’s claims.
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III. 	LEGAL STANDARD
A. Federal Rule of Civil Procedure 56
Summary 	judgment 	is 	warranted 	“if 	the pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.
2003) (internal quotations and citation omitted); Fed. R. Civ. P. 56. The factual record and
reasonable inferences must be construed in the light most favorable to the nonmoving
party. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The moving party bears the
initial burden, but once met, the burden shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby Inc., 477
U.S. 242, 256 (1986). Ultimately, the Court’s inquiry on summary judgment is whether the
facts and evidence identified by the parties present “a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251–52.
B. Federal Rule of Civil Procedure 72(b)(3)
When a magistrate judge issues a recommendation on a dispositive matter, the
presiding district judge must “determine de novo any part of the magistrate judge’s
[recommended] disposition that has been properly objected to.” Fed. R. Civ. 72(b)(3). An
objection to a recommendation is properly made if it is both timely and specific. United
States v. 2121 East 30th St., 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge to focus attention on those issues—
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factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. In conducting
its review, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3).
C. Pro Se Litigants
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The
court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
IV. 	ANALYSIS
Plaintiff presents three general objections to the Recommendation’s factual
findings. He argues that Magistrate Judge Dominguez Braswell erred in determining that
(1) he needed to return to work 10 days after he administered the positive COVID-19 test,
not 14 days; (2) he was scheduled to work December 20, 21, and 22, 2021; and (3) his
text messages with his supervisor, Anthony Rugg, was the cause of his termination. ECF
No. 49 at 1–6. Upon de novo review of the facts presented on summary judgment, the
Court finds that Plaintiff’s objections do not warrant modification or rejection of the
Recommendation.
Frist, Plaintiff disputes the date that Best Buy required him to return to work. He
argues that he had 14 days of sick leave starting December 8, 2021, not 10 days. ECF
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No. 49 at 2. He argues that the “evidence shows Plaintiff was not on a work schedule
starting from November 29, 2021, through the Christmas holiday 12/25/2021. Therefore,
if not on a schedule Plaintiff could not and should not have been terminated for a no call
no show.” ECF No. 49 at 2. The Court is not persuaded. The evidence shows that Best
Buy employees who tested positive for COVID-19 were not required to return to work until
at least 10 days after their symptoms first appeared and until they were symptom-free for
24 hours. ECF No. 31-18, ¶ 9. Moreover, the evidence clearly shows that Plaintiff was not
on paid sick leave from December 20–22, 2021. Rather, Plaintiff agreed to return to work
on December 20, 2021, and the work schedule reflected that he was assigned to work
those days. ECF Nos. 31-10, 31-11, 37-6, 31-10, 31-18. The Court overrules Plaintiff’s
first objection.
Second, Plaintiff again argues that he was not scheduled to work on the days in
question—December 20–22, 2021. ECF No. 49 at 2–5. But the undisputed evidence
shows otherwise. ECF No. 31-11 (December 2021 work schedule); ECF No. 31-19 (Decl.
from Human Resources Business Partner). There simply is no evidence that he was on
approved sick leave or PTO during this three-day period. 4 The Court overrules Plaintiff’s
second objection.
4 On December 15, 2021, Mr. Rugg asked Plaintiff when he could return to work, based on his test results.
ECF No. 31-10 at 3. Plaintiff responded, “Im cleared this coming Monday sir. . . . I look forward to coming
back too work thank you sir.” Id. at 3–4 (text messages copied verbatim from ECF No. 31-10). Then, on
December 21, 2021, Mr. Rugg wrote, “Good morning Corey, trying to get an idea of when you will be coming
back? You told me you were cleared yesterday so I expected you. Are you planning on being here this
week at all?” Id. at 4. Plaintiff responded, “Sir would Wednesday/tomorrow I’ll be there.” Id. Mr. Rugg
responded, “sounds good.” Id. On December 22, 2021, at 2:11 p.m., Mr. Rugg wrote, “Hey Corey? Thought
you were coming in today?” Id. at 5. Plaintiff responded, “I’m changing and coming in now sir[.] I’m back in
springs. That was my intent at 7am. Sorry about not keeping you updated but I was so mad. my dad showed
me a warrant for myself. For that speeding ticket in stirling furious, just to drive back cause I’m not sitting in
jail. And been on the phone with a part time office clerk, waiting on the judge all day.” Id. Mr. Rugg
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Third, 	Plaintiff 	argues 	that 	Magistrate 	Judge 	Dominguez 	Braswell 	erred 	in
determining that Plaintiff was terminated for cause. ECF No. 49 at 5–6. He apparently
contends that the text message exchange with his supervisor, Mr. Rugg, in which he
stated that he was cleared to return to work, and that he would report to work on three
consecutive days, is not relevant to his termination. See id. He instead disputes whether
he texted Kirstie Chavez on December 17, 2021. Id. The Court agrees with Best Buy that
Plaintiff’s text messages with his supervisor are relevant and speak for themselves. See
ECF No. 31-10. The Court also fails to see how a text exchange with another Best Buy
employee is relevant to whether Best Buy terminated Plaintiff for cause—especially when
the facts show that Plaintiff was absent three days in a row and never told anyone at Best
Buy that he was absent due to illness or COVID-19. Like the previous two objections, the
Court overrules this one was well.
V. 	CONCLUSION
Consistent with the above analysis, the Court makes the following rulings:
(1) 	Plaintiff’s objection, ECF No. 49, is OVERRULED;
(2) 	The 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge
Dominguez Braswell’s Recommendation, ECF No. 48, as an
order of this Court;
(3) 	Defendant’s motion for summary judgment, ECF No. 31, is
GRANTED;
(4) 	Plaintiff’s 	motion 	for 	summary 	judgment, 	ECF 	No. 	35, 	is
DENIED as MOOT;
responded, “Cory. Don’t worry about coming in today. I needed you this morning.” Id. At no point did Plaintiff
mention that he was on leave. Had he believed he was on leave, presumably he would have said so. The
Court agrees with Magistrate Judge Dominguez Braswell that, “[a]t best, the record reflects a disconnect
between Plaintiff and Defendant as to whether Plaintiff was ready to return to work, but such confusion
does not give rise to a claim of retaliation.” ECF No. 49 at 11.
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(5)

(6)

(7)
(8)

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Plaintiffs motion for judgment as a matter of law, ECF No. 33,
is DENIED as MOOT;

Defendant's unopposed motion for continuance of final pretrial
conference, ECF No. 50, is DENIED as MOOT;

Plaintiffs case is dismissed; and
The Clerk of Court is directed to close this case.

DATED this 28th day of March 2025.

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