Gerovic v. City and County of Denver

Appellate Case: 22-1148 Document: 010110819609 Date Filed: 03/01/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
March 1, 2023
FOR THE TENTH CIRCUIT
Christopher M. Wolpert
_________________________________ Clerk of Court
EMINA GEROVIC,
Plaintiff - Appellant,
v. No. 22-1148
(D.C. No. 1:19-CV-03710-RM-NRN)
CITY AND COUNTY OF DENVER; (D. Colo.)
LEROY LEMOS; JAMES E.
WILLIAMSON; JOEL WOMICK; KYLE
KNOEDLER; HSS, INC.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges.
_________________________________
Plaintiff-Appellant Emina Gerovic appeals the district court’s entry of summary
judgment in favor of the defendants: (1) her former employer, the City and County of
Denver (the “City”); (2) two of the City’s employees, Leroy Lemos and James
Williamson1 (collectively with the City, the “City Defendants”); (3) HSS, Inc. (“HSS”), a
*
This order and judgment is not binding precedent, except under the doctrines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.
1
Gerovic included two additional City employees in her operative complaint:
Murphy Robinson and Kevin O’Neil. In her response to the City Defendants’
summary judgment motion, however, Gerovic stated that she did not object to the
(Cont’d)
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private contractor that the City hired to provide security personnel services at its
buildings; and (4) two HSS employees, Joel Womick and Kyle Knoedler (collectively
with HSS, the “HSS Defendants”).2
At issue in this appeal are (1) Gerovic’s claims against the City Defendants for
race and color discrimination, national origin discrimination, and retaliatory discharge, in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981 and
42 U.S.C. § 1983; and (2) Gerovic’s § 1983 claims against the HSS Defendants for
violation of her equal protection rights under the Fourteenth Amendment. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background3
1. Gerovic’s Employment with the City
Gerovic is a Caucasian female of Bosnian ethnicity. In August 2014, she
began her employment with the City as a custodian in the Facilities Management
Department. She initially worked at Denver Police District (“DPD”) Five, although
she was later reassigned to work at Denver Human Services (“DHS”).
dismissal of her claims against these two defendants. Accordingly, Gerovic is not
appealing the portion of the district court’s order granting summary judgment to
Robinson and O’Neil.
2
The HSS Defendants have submitted a separate appellee brief from the City
Defendants. In the interest of clarity, we refer to the City Defendants’ brief as “Aple.
Br.” and the HSS Defendants’ brief as “HSS Br.”
3
The following facts are undisputed, unless otherwise noted.
2
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Defendant Leroy Lemos is a Hispanic male, and he served as the Operations
Supervisor in the City’s General Services Agency during Gerovic’s employment with
the City. Lemos’s supervisor, Defendant Kevin O’Neil, is a Caucasian male who
served as the Deputy Director of Facilities Management. O’Neil’s supervisor,
Defendant James Williamson, is an African-American male who served as the
Director of Facilities Management. Williamson’s supervisor, Defendant Murphy
Robinson, is an African-American male who served as the Executive Director of
General Services.
Defendant HSS, a private contractor, was hired by the City to provide security
personnel services at government buildings. Defendants Joel Womick and Kyle
Knoedler were employees at HSS. When Gerovic was employed by the City,
Womick was the Assistant Director of Operations for HSS, and Knoedler was a
Facility Security Supervisor for HSS.
2. Gerovic’s Early Discipline History
Shortly after Gerovic began her employment with the City of Denver, she
developed a discipline history due to a handful of incidents at work.
In 2015, Gerovic received a verbal warning for wearing a gray DPD sweatshirt
while on duty at the City’s Police Administration Building (“PAB”). Gerovic
received a verbal warning for this incident because the DPD sweatshirt was not part
of her facilities management uniform, and it could cause problems if she were
misidentified as a police officer.
3
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On September 21, 2015, Gerovic received a verbal reprimand from Custodial
Supervisor James Stigall, a Caucasian male, for not wearing her safety shoes.
On October 1, 2015, Gerovic received a verbal warning from Custodial
Supervisor Tony Rios, a Hispanic male, for receiving a poor to fair inspection report
rating.
On June 13, 2016, Lemos gave Gerovic a documented counseling conversation
regarding her personal use of her City-issued cell phone.
On March 17, 2017, Gerovic received a documented counseling conversation
from Rios regarding her failure to answer her phone when Lemos called, as well as
her failure to set up her voice mail.
These incidents did not result in a pay change, change in job duties, or any
other change in Gerovic’s employment status. Although Gerovic’s termination letter
lists her prior discipline, it does not state that any prior discipline was the basis for
her termination.
3. Gerovic’s Incident at the Denver Motor Vehicles Office
On May 4, 2017, Lemos issued Gerovic a revised Written Reprimand
Disciplinary Action, regarding an incident that occurred at the Denver Motor
Vehicles (“DMV”) office, in the Arie P. Taylor Building. Gerovic disputes the City
Defendants’ recitation of the facts as to this incident.
The written reprimand stated that, on March 16, 2017, Lemos received a phone
call from an “irate” DMV office customer, Brian J., an African-American male.
4
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Aple. App., Vol. I at 149. Brian allegedly called with Daniel G.,4 a witness to
incident, standing next to him, so that Daniel could hear the complaint to verify and
correct anything that Brian said.
According to the written reprimand, Brian told Lemos that he entered the Arie
P. Taylor Building “via the unlocked East entrance,” and “proceeded down the stairs
to the 1st floor lobby to await the DMV office to open, where he encountered Daniel
G. also waiting.” Id. at 149. The written reprimand notes that “Daniel said that he
got lucky and the nice city worker [Gerovic] let him in” the building. Id.The written reprimand states that Gerovic then came into the lobby and told
Brian, the African-American male, that the building was not yet open and he needed
to wait outside—even though she did not say the same thing to Daniel. As a result,
Gerovic and Brian allegedly got into a heated, verbal exchange that was overheard by
several witnesses.
Sequoya Palin, a HSS security agent, submitted a written statement referred to
in the written reprimand where she asserts that Gerovic told her she let Daniel into
the building. Additionally, the written reprimand states that the City’s Human
Resources representative, Anne Carter, interviewed a ResCare employee, Jerrick
4
Daniel’s race is not explicitly stated in the record. In the written reprimand,
however, the City states that Brian accused Gerovic of treating the two men
differently because of race. While speaking about the incident, Brian reportedly told
HSS Agent Stanford that it “is racism to kick [him] out and let the white man stay.”
Aplt. App., Vol. III at 19.
5
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Perkins, about the incident. According to Perkins, Gerovic told him she was worried
she was going to get into trouble for letting Daniel into the building.
Carter and Lemos met with Gerovic about the incident on March 17, 2017.
Gerovic represented that she did not let Daniel into the building. However, the
security camera footage indicated that Daniel did not enter the building through the
unlocked door that Brian used, which is consistent with Daniel’s representations that
Gerovic let him in through the locked door.
Gerovic contends that “she was not dishonest with her employer and explicitly
disputed that she had let anyone, of any race, into the building,” and she testified
accordingly in her deposition. Reply Br. at 2.
Although Lemos’s investigation into this incident at the DMV was the basis
for Gerovic’s written reprimand, it was not the basis for her termination, and it is not
identified as such in her termination letter.
4. Gerovic’s Facebook Profile
In September 2017, the City received information that Gerovic was
representing herself as a Denver Police Officer on her public Facebook profile.
During Gerovic’s administrative appeal of her termination, Anna Forsberg, a City
employee, testified under oath that her daycare provider notified her about Gerovic’s
Facebook profile. Forsberg then took a screenshot of the page and sent it to Carter,
the City’s Human Resources representative. Thereafter, Lemos viewed Gerovic’s
Facebook profile and confirmed that Gerovic was representing herself as a Denver
Police Officer.
6
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Gerovic’s public Facebook profile listed her occupation as “Police Officer”
and her employer as the “Denver Police Department.” Aple. App., Vol. I at 180–182.
Her profile also included the following photographs: (1) Gerovic wearing a t-shirt
with a DPD emblem, posted in 2014; (2) two photographs of Gerovic wearing a DPD
patrol person’s hat, posted in 2015; (3) Gerovic’s DPD-issued access card that
features a DPD badge, posted in 2014; and (4) Gerovic wearing a hooded sweatshirt
with a DPD emblem, posted in 2015.5
Gerovic testified that the photographs of her wearing the police hat were taken
at the clerk’s office in the PAB, and they were posted to her Facebook page from the
clerk’s office in the PAB by the police officer who took the picture, per her request.
Gerovic also testified that none of the posts state that the photographs were taken
outside of working hours.
Sergeant Randy Steinke of the Denver Police Department interviewed Gerovic
about her Facebook posts, and he had Gerovic show him where the pictures were
taken. Steinke testified under oath at Gerovic’s administrative hearing that the
pictures of Gerovic in the police hat were taken at the information desk in the police
lobby. Additionally, Steinke testified that the picture of Gerovic in the t-shirt with
5
The City Defendants contend that, in the comments section of the
photographs where Gerovic was wearing the police hat, one commenter referred to
Gerovic as a “policewoman” in Bosnian, with the word “MILICIONERKA.” Aple.
App., Vol. II at 34; see Aple. App., Vol. I at 184. Although Gerovic initially
disputed this fact, at oral argument she agreed that one commenter indicated that they
thought Gerovic was, in fact, a police officer.
7
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the DPD emblem was taken in a room in the PAB. Finally, Gerovic testified that she
took the picture of her access badge for the PAB in the custodian closet at the PAB.6
5. The City’s Response to Discovering Gerovic’s Facebook Profile
On September 19, 2017, Gerovic was issued a Contemplation of Discipline
letter, scheduling a Contemplation of Discipline meeting to occur on
September 28, 2017. The next day, on September 20, 2017, Gerovic was issued a
Notice of Change in Work Location letter, stating that she was being assigned to
work at the Castro Building (which houses the DHS, rather than the DPD), and that
her new shift would be from 1:30 p.m. to 10:00 p.m., rather than her previous shift
from 6:00 a.m. to 2:30 p.m. O’Neil testified under oath during Gerovic’s
administrative appeal hearing that he was the one who decided to change Gerovic’s
work location. On September 21, 2017, Gerovic met with O’Neil to discuss her
location and shift change.
Gerovic then went to Robinson’s office to meet with him. During their
meeting, Gerovic admitted that she had made a mistake with her Facebook posts.
Gerovic testified that while she was in Robinson’s office, she was crying, and she
said something to the effect of: “even if I kill myself to” prove how good she was
working. Aple. App., Vol. I at 94. However, Robinson heard Gerovic say that she
was going to kill herself, which caused him to fear for her safety. As a result, on
6
Gerovic also testified that the photograph of her wearing the hooded
sweatshirt with the “DPD” emblem was taken in her car, on her way home from
work.
8
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September 22, 2017, Gerovic was placed on paid administrative leave, and she was
scheduled for a fitness for duty exam. Gerovic’s Administrative Leave Action Notice
stated that she should not report to the workplace, and Carter, the Human Resources
representative, instructed her the same.7
6. Gerovic’s Administrative Leave & HSS’s “Be-on-the-Lookout”
Posters
Around the time that Gerovic was placed on administrative leave, the City
instructed HSS, the private security contractor, to create a “Be On the Look Out”
(“BOLO”) poster so that Gerovic’s department could be aware of when she was
entering City facilities. The BOLO poster was directed to “HSS Employees in ALL
Buildings,” and it stated: “If [Gerovic] is seen entering ANY Building[,] contact your
supervisor immediately.” Aple. App., Vol. I at 237 (emphasis omitted). HSS
employee Knoedler created the requested BOLO poster on September 22, 2017, and
he updated the BOLO poster on October 3, 2017.
Gerovic was placed on administrative leave with pay for nine days from
September 22, 2017, through October 3, 2017. On or about October 3, 2017, Gerovic
received a Notice of Change in Work Location, which changed her schedule back to
6:00 a.m. to 2:30 p.m., although she was still assigned to work at the DHS, rather
than the DPD. When Gerovic returned from administrative leave, she returned to her
work as a custodian on the same shift, with the same pay, and no change in benefits.
7
The City Defendants contend that Gerovic entered her workplace, a secure
area, on the morning of September 22, 2017, and she was discovered by her
supervisor. However, Gerovic disputes this point.
9
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When Gerovic returned to work, on or about October 5, 2017, she overheard
co-workers talking about the BOLO posters. Gerovic became upset and raised her
concerns with City staff. The City then ordered HSS to remove the BOLO posters
from all locations. According to the HSS Defendants, the BOLO posters were kept at
a security desk that was not accessible to the public or non-HSS employees.
7. Contemplation of Discipline Meeting & Gerovic’s Termination
The Contemplation of Discipline letter from September 19, 2017, was
subsequently revised and re-issued on October 18, 2017, to include additional
information regarding (1) the Facebook posts; (2) Gerovic’s September 20, 2017,
meeting with Lemos; (3) Gerovic’s September 21, 2017, meeting with O’Neil; (4) her
September 21, 2017, meeting with Robinson; and (5) her September 22, 2017,
appearance at work when she was on administrative leave.
A contemplation of discipline meeting was held on October 31, 2017, where
Gerovic was represented by an attorney and had the opportunity to discuss everything
in the Contemplation of Discipline Letter. After the contemplation of discipline
meeting, Williamson notified Gerovic of his decision to terminate her employment on
November 27, 2017.
The dismissal letter set forth Gerovic’s disciplinary history, which included a
written and a verbal reprimand, two instances of documented counseling, and a
verbal warning. However, the primary focus of the dismissal letter was Gerovic’s
public Facebook profile and the misrepresentations contained therein—as well as
10
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Gerovic’s evasive and inconsistent answers regarding the investigation into her
Facebook posts.8 In the dismissal letter, Williamson stated the following:
Falsely identifying yourself to the public as a police officer is both
troubling and unacceptable. . . . By wearing clothing items that have
police badges, posting pictures of yourself in police issued clothing and
posting a copy of your police building access card, you can create
public confusion regarding your role, responsibilities[,] and duties. It
can also be dangerous to you and the public, should someone need
police assistance or intervention and come to you for help.
Representing yourself [as] a police officer, as a joke or to impress
others, is not only deceitful, but could be perceived as impersonating a
police officer, which is a serious offense.
Aple. App., Vol. I at 197–98.
B. Procedural Background
On September 21, 2018, Gerovic filed a charge of discrimination with the
EEOC, checking the boxes for “retaliation,” “race,” and “color.” Aple. App., Vol. I
at 268. The gist of Gerovic’s discrimination charges is that she believed she was
singled out by Lemos for disciplinary action and punishment because she “is not
Latino.” Id. at 272.
8
The district court observed that Gerovic “made multiple evasive and
nonresponsive statements that the City found difficult to reconcile.” Aple. App.,
Vol. III at 138. For example, the dismissal letter notes that, when Lemos asked about
Gerovic’s self-identification as a police officer on her Facebook page, she replied, “I
do not know how that got there,” and, when asked about the photographs in DPD
uniforms, she replied, “Those were just for fun a long time ago.” Aple. App., Vol. I
at 197. Additionally, when the dismissal letter references the photograph of Gerovic
wearing a t-shirt with the DPD emblem, it notes that Gerovic “state[d] the badge on
the gray shirt was a sticker, when, in fact, it is clearly an embroidered patch.” Id.The dismissal letter also notes that Gerovic initially stated that the pictures of her
wearing a patrol person’s hat were the result of her being “told” by Officer Ray to put
on the hat; in a subsequent interview, however, Gerovic “implied [she was] following
a police order to put on the hat and then a picture was taken.” Id.11
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After obtaining a “right to sue” letter, Gerovic filed this lawsuit in the United
States District Court for the District of Colorado on December 30, 2019. In her Second
Amended Complaint, Gerovic alleged that the defendants “created and condoned a work
environment that was hostile to employees who are not Hispanic.” Aplt. App., Vol. I
at 24. As pertinent to this appeal, Gerovic asserted the following claims for relief:
(1) Title VII race and color discrimination against the City (Count I); (2) Title VII
retaliation against the City (Count II); (3) § 1981 claims for violation of her equal
protection rights under the Fourteenth Amendment against all of the defendants except
the City (Count III); and (4) § 1983 claims for violation of her equal protection rights
under the Fourteenth Amendment against all of the defendants except the City
(Count IV).9
The City Defendants and the HSS Defendants moved for summary judgment. In
response, Gerovic raised a new theory of national origin discrimination by the City
Defendants in her summary judgment briefing.10
9
In her operative complaint, Gerovic asserted additional claims, and claims
against additional parties. In her response to the City Defendants’ motion for
summary judgment, however, Gerovic indicated that she did not object to the
dismissal of those claims. Therefore, the district court’s dismissal of the following
claims is not on appeal: (1) Gerovic’s claims against defendants Robinson and
O’Neil; (2) Gerovic’s §§ 1981 and 1983 claims against the City (Counts III and IV);
and (3) Gerovic’s claim for violation of the Family Medical Leave Act against the
City (Count V). Additionally, Gerovic does not challenge the district court’s grant of
summary judgment as to her § 1981 claim against the HSS Defendants on appeal.
Accordingly, we do not address any of these claims here.
10
In Gerovic’s operative complaint, she captioned Claim I as “Title VII Race
and Color Discrimination,” and she did not assert a cause of action for “Title VII
(Cont’d)
12
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The district court granted the City Defendants’ and the HSS Defendants’ motions
for summary judgment as to all of Gerovic’s claims, including Gerovic’s national origin
claim.
Gerovic subsequently moved to alter or amend the district court’s grant of
summary judgment as to her Title VII retaliation claims. However, the district court
denied that motion.
Gerovic filed a timely notice of appeal.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo, applying the same
legal standard used by the district court under Federal Rule of Civil Procedure 56(a).
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011). We affirm if
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d
1134, 1141 (10th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “A fact is ‘material’ if
under the substantive law it could have an effect on the outcome of the lawsuit. An
issue is ‘genuine’ if a ‘rational jur[or] could find in favor of the nonmoving party on
the evidence presented.’” Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242,
1246 (10th Cir. 2000) (alteration in original) (citation omitted) (quoting EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)). “The
National Origin Discrimination.” Aplt. App., Vol. I at 33. Although Gerovic’s
operative complaint stated that Gerovic “was of Bosnian ethnicity and ancestry,” it
did not include any references to her country of origin. Id. at 22.
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evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III. ANALYSIS
On appeal, Gerovic argues that the district court erred by (1) granting the City
Defendants’ motion for summary judgment as to her Title VII, §§ 1981 and 1983
race- and national origin-based discriminatory discharge claims, and retaliatory
discharge claims; and (2) granting the HSS Defendants’ motion for summary
judgment as to Gerovic’s § 1983 claims. For the reasons that follow, we reject
Gerovic’s arguments and conclude that the district court properly granted summary
judgment in favor of the City Defendants and the HSS Defendants.
A. Reverse Race Discrimination Claims Against the City Defendants
The district court granted summary judgment to the City Defendants on
Gerovic’s reverse race discrimination claims on two grounds. First, the district court
concluded that Gerovic failed to establish a prima facie case because she did not
submit sufficient evidence to establish a reasonable probability that she would not
have been fired were she not a non-Hispanic Caucasian. Second, the district further
concluded that Gerovic failed to show that the City Defendants’ stated reasons for
firing her were pretextual.
We need not decide whether the district court erred in determining that
Gerovic failed to establish a prima facie case of discrimination. Rather, we conclude
that, even if Gerovic did establish a prima facie case, her racial discrimination claims
could not survive summary judgment because she cannot show that the City’s
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proffered reasons for her termination were pretextual. Accordingly, we affirm the
district court’s grant of summary judgment based on Gerovic’s failure to establish
pretext.
1. Legal Background
i. McDonnell Douglas framework
Gerovic alleges that the City Defendants discriminated against her in violation
of Title VII, § 1981, and § 1983.11 Regardless of whether Gerovic’s claims are
brought pursuant to Title VII, § 1981, or § 1983, however, “the elements of a
discrimination lawsuit are the same.” Fulcher v. City of Wichita, 387 F. App’x 861,
864 (10th Cir. 2010); see Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1225–26 (10th Cir. 2000) (applying the McDonnell Douglas framework to § 1981
and § 1983).
“When alleging disparate treatment on the basis of [race or national origin],
the plaintiff must prove by a preponderance of the evidence that the defendant had a
discriminatory motive or intent.” Sorensen v. City of Aurora, 984 F.2d 349, 351
(10th Cir. 1993). Since Gerovic “lacks direct evidence of intentional discrimination,”
she “may use the burden-shifting framework” articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), “to demonstrate intentional discrimination”
using circumstantial evidence. Horizon/CMS Healthcare Corp., 220 F.3d at 1191.
11
Gerovic also raises claims of discrimination based on her national origin.
We address Gerovic’s national origin claims separately in Section III.C.
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Under McDonnell Douglas, Gerovic must first establish a prima facie case of
discrimination. 411 U.S. at 802. If she succeeds in doing so, then the burden shifts
to the City Defendants “to rebut the presumption of discrimination” by “producing
some evidence that it had legitimate, nondiscriminatory reasons for the decision.”
Sorensen, 984 F.2d at 352 (internal quotation marks omitted). The City’s articulation
of its legitimate, nondiscriminatory reasons for its employment decision “must be
clear and reasonably specific.” Drake v. City of Fort Collins, 927 F.2d 1156, 1160
(10th Cir. 1991). If the City Defendants “succeed[] in rebutting the presumption of
discrimination raised by plaintiff’s prima facie case, then . . . . the plaintiff must
prove by a preponderance of all the evidence in the case that the legitimate reasons
offered by the defendant[s] were a pretext for discrimination.” Sorensen, 984 F.2d
at 352. “The ultimate burden of persuading the trier of fact that the defendant[s]
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988).
ii. Reverse Discrimination Claim
Gerovic alleged in her complaint that the City Defendants discriminated
against her based on her race and color. Because Gerovic is Caucasian and not a
member of a minority of a historically disfavored group, her claim is one for reverse
race and color discrimination. Lyons v. Red Roof Inns, Inc., 130 F. App’x 957, 963
(10th Cir. 2005); Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1251 (10th
Cir. 1986).
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In a reverse discrimination case, a plaintiff “must, in lieu of showing that [s]he
belongs to a protected group, establish background circumstances that support an
inference that the defendant is one of those unusual employers who discriminates
against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1201 (10th Cir. 2006) (internal quotation marks omitted). “Alternatively, a
plaintiff may produce facts sufficient to support a reasonable inference that but for
plaintiff’s status the challenged decision would not have occurred.” Id. (internal
quotation marks omitted). Here, Gerovic acknowledges that the “but for” standard
applies to her burden to establish a prima facie case, and she argues that there is a
reasonable probability that she would not have been fired were she not “of Caucasian
origin and non-Hispanic.” Aplt. App., Vol. III at 134–35.
2. Analysis
Although the district court concluded that Gerovic failed to establish a prima
facie case under the first step of the McDonnell Douglas analytical framework, we
need not reach this issue here. Rather, we assume without deciding that Gerovic has
established a prima facie case of racial discrimination, in light of the fact that the
“burden of establishing a prima facie case . . . by a preponderance of the evidence” is
“not onerous.”12 McCowan v. All Star Maint., Inc., 273 F.3d 917, 922 (10th Cir.
2001) (internal quotation marks omitted).
12
We have previously affirmed a grant of summary judgment based on an
employee’s failure to show pretext after assuming without deciding that the employee
has stated a prima facie case. See, e.g., Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316
(Cont’d)
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Turning to the second step of the McDonnell Douglas framework, we conclude
that the City articulated legitimate, non-discriminatory reasons for terminating
Gerovic’s employment. As the City noted in Gerovic’s Notification of Dismissal,
Gerovic violated multiple Career Service Rules, including Rule 16-29(D) prohibiting
“[a]ny act of dishonesty,”13 and she falsely identified herself as a Denver Police
Officer on her public Facebook profile. Aple. App., Vol. I at 194. Additionally, the
dismissal letter noted that Gerovic told other falsehoods surrounding these posts and
other incidents, failed to follow protocols, and was disruptive in the workplace.
These explanations constitute legitimate, non-discriminatory reasons for Gerovic’s
termination. See, e.g., Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir.
1995) (noting that employees’ violations of rules and regulations constituted
nondiscriminatory reasons for their terminations).
Under the third step of the McDonnell Douglas framework, the burden shifts
back to Gerovic to establish a genuine issue of material fact that the reasons offered
by the City were pretextual. Although Gerovic offers several arguments in support of
her assertion that she established pretext, none of these arguments are persuasive.
(10th Cir. 2017) (resolving the employee’s claims based on her failure to show
pretext, and “assum[ing] without deciding that [the employee] could make a prima
facie McDonnell Douglas showing of sex discrimination and retaliation”).
13
Gerovic’s Notification of Dismissal also noted that she had received a
written reprimand for dishonesty four months earlier (in connection with the DMV
incident).
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i. The City Defendants’ Treatment of Gerovic’s Facebook
Activity as a Serious Offense
First, Gerovic asserts that the City Defendants “exaggerated the seriousness of
the Facebook posts, and fabricated or exaggerated misconduct by Gerovic, as pretext
to discharge her for retaliatory or discriminatory reasons.” Aplt. Br. at 44–45.
Despite Gerovic’s assertions, she has not presented any evidence aside from her own
subjective belief that the City exaggerated the serious nature of her misconduct. To
the contrary, the City’s investigation into Gerovic’s Facebook profile revealed that
Gerovic received serious and supportive comments in response to her photographs,
and at least one individual appeared to believe Gerovic was a police officer. Aple.
App., Vol. I at 123, 183–84. Gerovic’s subjective belief that the City exaggerated its
response to her misconduct is insufficient to demonstrate pretext.
Here, the dismissal letter clearly outlined the reasons why the City viewed
Gerovic’s misconduct as serious in nature. Among other things, the City stressed to
Gerovic that “[f]alsely identifying yourself to the public as a police officer . . . . can
create public confusion regarding your role, responsibilities[,] and duties,” and “[i]t
can also be dangerous to you and the public, should someone need police assistance
or intervention and come to you for help.” Aple. App., Vol. I at 197–98.
Additionally, the City noted that regardless of whether Gerovic was misrepresenting
herself as a police officer “as a joke or to impress others,” her conduct was “not only
deceitful, but could be perceived as impersonating a police officer, which is a serious
offense.” Id.19
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Moreover, this was not the first time Gerovic was warned about
misrepresenting herself as a police officer. In 2015, she had received a “verbal
warning” for wearing a DPD sweatshirt while on duty, and she was advised that it
could cause problems if she were misidentified as a police officer.14 Id. at 197.
Gerovic’s prior warning demonstrates that the City has consistently taken the
position that misrepresenting oneself as a police officer—whether intentionally or
unintentionally—raises serious concerns and warrants discipline. Accordingly, the
evidence in the record would allow a jury to find that the City honestly believed that
an employee misrepresenting herself as a police officer constitutes serious
misconduct, and that the City acted in good faith upon those beliefs. Luster v.
Vilsack, 667 F.3d 1089, 1094 (10th Cir. 2011) (“The relevant inquiry is not whether
the employer’s proffered reasons were wise, fair or correct, but whether it honestly
believed those reasons and acted in good faith upon those beliefs.” (internal quotation
marks omitted)).
ii. Credibility Determinations Regarding Gerovic’s Prior
Incidents of Misconduct
Next, Gerovic contends that the district court “improperly assumed disputed
facts about [Gerovic’s] ‘less serious misconduct’ in favor of the City Defendants,
14
The dismissal letter also notes that, when Gerovic received a verbal warning
in 2015 for wearing a gray DPD sweatshirt during the workday, she “stated [she]
wore it because [she was] so proud to work for the DPD.” Aple. App., Vol. I at 197.
According to the letter, Lemos then “clarified to [Gerovic] that [she] do[es] not work
for [the] DPD,” but rather, she was “assigned to clean a police building.” Id.20
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rather than in the non-movant, Gerovic’s favor.” Aplt. Br. at 42. In rejecting
Gerovic’s pretext arguments, the district court held that
As set forth in the City Defendants’ eight-page dismissal letter, the City
found [Gerovic]’s most egregious misconduct was representing herself as a
police officer on Facebook, but her disciplinary history included various
instances of less serious misconduct as well. [Gerovic] has not shown these
reasons are unworthy of belief, and, taken together, they provide a
legitimate, nondiscriminatory basis for her firing.
Aplt. App., Vol. III at 137. Gerovic “disputes that she engaged in dishonesty
surrounding her Facebook posts or other incidents,” and she “disputes that many of
the events investigated by Lemos occurred as described, including the [DMV]
Incident, her failure to wear safety shoes, the ‘white glove’ inspection of areas
assigned to Gerovic, and her use of her cell phone.” Aplt. Br. at 42–43.
Additionally, Gerovic disputes “that any comments she made about other employees
were negative and disruptive,” and she contends that she “submitted numerous
instances where she was praised by her coworkers, . . . raising questions as to the
seriousness of her alleged ‘disruptive’ behavior.” Id. According to Gerovic, “such
questions of credibility should have been reserved for the trier of fact.” Id.This argument also fails. As the district court correctly noted, “[c]onsidering
the facts as they appeared to the City at the time she was fired, [Gerovic] has not
shown that [the City’s] stated reasons for firing her were not honestly held.” Aplt.
App., Vol. III at 138. “The pertinent question in determining pretext is not whether
the employer was right to think the employee engaged in misconduct, but whether
21
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that belief was genuine.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1119 (10th
Cir. 2007) (internal quotation marks and brackets omitted).
Here, Gerovic’s subjective beliefs about her own job performance do not raise
a genuine issue of material fact regarding the City’s stated reasons for her
termination. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179
(10th Cir. 2006). To show pretext, Gerovic must produce evidence that the City
shifted rationales; that the proffered justification was false, incoherent, or
contradictory; or that similarly-situated employees were treated differently. See
Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1197 (10th Cir. 2011). However,
Gerovic has not produced any evidence that Williamson or Lemos (assuming he was
involved in the termination decision) shifted rationales at any point between when the
City began investigating Gerovic’s conduct and when Gerovic was terminated.
Additionally, Gerovic has not produced evidence that Williamson or Lemos did not
actually believe Gerovic was dishonest, or that either of them ever contradicted their
statements that Gerovic was dishonest.
iii. Human Resources Email Regarding the City’s Response to
Employee Misconduct Outside the Workplace
Gerovic also attempts to establish pretext by citing to an email from the City’s
former Human Resources representative, Christina Howard. According to Gerovic,
Howard’s email states that the City’s “ordinary response to an employee apparently
misrepresenting the nature of their employment with the City in a Facebook profile
would be to ‘clarify expectations’ and not to terminate the employee.” Aplt. Br. at
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23–24. However, Gerovic broadly overgeneralizes Howard’s message and takes her
words out of context. The full text of Howard’s email, in pertinent part, is below:
As for city protocol I wouldn’t think [this] is much different . . . than
city employees[’] activities outside of work—which can sometimes
reflect in their work environment. Often it is enough to let the
employee know it has come to our attention and clarify expectations. In
this instance, [there is] some concern as the employee list[s] DPD as an
employer and is misrepresenting their role.
Aplt. App., Vol. III at 99. Howard’s email says nothing about “the City’s ordinary
response.” Aplt. Br. at 23. Additionally, Howard’s email does not address whether
an employee could be terminated in this situation, or whether an employee could be
terminated for violating the Career Service Rule prohibiting dishonesty, especially
for the second time.
Moreover, Howard’s email discusses employees who committed misconduct
“outside of work,” whereas it is undisputed that Gerovic’s Facebook photographs
were taken at work, in various locations throughout the PAB. Aplt. App., Vol. III
at 99. Howard also noted that “activities outside of work . . . can sometimes reflect
in [the employee’s] work environment,” but here Gerovic’s activities directly
implicate her role at the DPD. Id. Not only does Gerovic’s Facebook profile state
that she works as a “Police Officer” at the “Denver Police Department,” but each of
the photographs at issue also feature the DPD emblem or badge in some fashion.
Aple. App., Vol. I at 180–182.
Gerovic also fails to mention the key sentence in Howard’s email where she
states that, “[i]n this instance, [there was] some concern as the employee list[ed]
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DPD as an employer and [was] misrepresenting [her] role.” Aplt. App., Vol. III
at 99. This statement suggests that Howard viewed Gerovic’s situation as more
serious than other situations involving employees’ activities that occurred outside of
work, and that perhaps it would not be enough to simply notify Gerovic and “clarify
expectations.”15 Id.iv. Lemos’s Alleged Racial Bias Against Non-Hispanic
Employees
In support of her argument that she has established pretext, Gerovic contends
that she “submitted evidence from which a reasonable juror could conclude that
Lemos was biased against white people.” Aplt. Br. at 43. Additionally, Gerovic
asserts that a reasonable juror could conclude that “Lemos effectively controlled the
investigation and discipline of Gerovic for the ‘misconduct’ that [the City] identified
as bases for her dismissal.” Id.This argument fails for several reasons. To begin, Gerovic has not included
any citations to the record to support the proposition that Lemos “controlled or
substantially contributed to the investigation and ultimate decision to terminate her.”
15
As we noted earlier, Gerovic had previously been warned about
misrepresenting herself as a police officer, even before the City Defendants
discovered her Facebook profile. Gerovic’s dismissal letter notes that, when she
received a verbal warning in 2015 for wearing a gray DPD sweatshirt during the
workday, she “stated [she] wore it because [she was] so proud to work for the DPD.”
Aple. App., Vol. I at 197. According to the letter, Lemos then “clarified to [Gerovic]
that [she] do[es] not work for [the] DPD,” but rather, she was “assigned to clean a
police building.” Id. This incident further undermines Gerovic’s argument that the
City’s response to her Facebook profile should have been to “clarify expectations,”
as the City had already done so.
24
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Id. at 31. Rather, the record reflects that termination decisions were outside the
scope of Lemos’s authority.
Although Gerovic acknowledges that Williamson made the “formal” decision
to terminate her, she contends that Williamson told her in May 2017 that he “could
do nothing and that it was Lemos who made the decision.” Id. at 31 (citing Aplt.
App., Vol. II at 117, 134). During this May 2017 discussion, however, Williamson’s
reference to Lemos’s “decision” refers to Gerovic’s written reprimand (in connection
with the DMV incident), not her termination. Aplt. App., Vol. II at 134, 159–60,
162. In fact, Williamson could not possibly have been referencing Gerovic’s
termination, because she was not terminated until several months later, in November
2017.16
Gerovic also alleges that “Lemos personally conducted the investigations of
many of the incidents that served as the stated bases for Gerovic’s dismissal,
including the [DMV] building incident, the Facebook posts, and Gerovic’s alleged
personal use of her work cell phone.” Aplt. Br. at 31–32. However, Lemos’s
investigations regarding Gerovic’s cell phone usage and her misconduct at the DMV
16
Similarly, Gerovic overgeneralizes the record when she asserts that “O’Neil
testified that the ultimate decision by Williamson relied on information provided by
Lemos.” Aplt. Br. at 31. In the pages of O’Neil’s testimony that Gerovic cites to,
however, O’Neil was not specifically referencing Williamson’s decision to terminate
Gerovic’s employment. Aplt. App., Vol. III at 35–37. Rather, O’Neil was
referencing the administration of discipline in general. Additionally, O’Neil
specifically stated that, when administering discipline, Williamson would also rely on
“other information” in addition to any information provided by Lemos. Id. at 36–37.
25
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building did not result in her termination. These incidents resulted in a documented
counseling and a written reprimand, respectively.
Although Gerovic suggests that Lemos’s review of her Facebook posts was
tainted by his discriminatory animus, she does not raise any specific allegations about
how Lemos’s discriminatory animus affected his review. For example, Gerovic does
not allege that Lemos instigated the review of Gerovic’s Facebook profile; rather,
Forsberg, a City employee, was notified about Gerovic’s Facebook profile from her
daycare provider. Additionally, the parties do not dispute that Gerovic’s Facebook
profile misstated Gerovic’s job title and place of employment, and that Gerovic did,
in fact, post (or request assistance in posting) the photographs at issue.
Gerovic also contends that “Lemos repeatedly disregarded her complaints of
harassment by Hispanic employees.” Aplt. Br. at 31 (citing Aplt. App., Vol. II at
127, 152). However, the cited pages of the record do not support this proposition.
See Aplt. App., Vol. II at 152 (Gerovic’s testimony that Lemos “don’t want to listen
to me” and said “it’s my fault”). Additionally, Gerovic contends that she testified
that she “told Williamson that Lemos was harassing her because she was not
Hispanic.” Aplt. Br. at 31 (citing Aplt. App., Vol. II at 117, 134). Here, too, the
cited pages of the record do not contain this testimony. See Aplt. App., Vol. II at 134
(Gerovic’s testimony that she “had a meeting with” Williamson, and he told her that
“he can do nothing” and “Leroy Lemos make decision”).
Finally, Gerovic claims that Lemos is “demeaning to non-Hispanic Caucasians
in general.” Aplt. Br. at 31. In support of this allegation, she relies on Facebook
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graphics that Lemos reposted on his Facebook page, which Gerovic contends
demonstrate an animus towards Caucasian people. See Aplt. App., Vol. III at 47–49
(screenshots of Lemos’s Facebook posts). Gerovic’s argument is unconvincing.
Lemos’s Facebook posts do not denote animus; they simply reflect his own personal
views on police unions and the Black Lives Matter protests that occurred during the
summer of 2020. See Aple. App., Vol. II at 76 (Lemos’s testimony about his intent
behind his Facebook posts). Moreover, Lemos’s Facebook posts were made years
after Gerovic’s termination, and they clearly do not relate in any way to her
termination.
v. Gerovic’s Treatment Compared to Hispanic Employees
Finally, Gerovic attempts to establish pretext by offering comparisons to
Hispanic individuals who she claims were similarly situated to her yet were treated
differently. According to Gerovic, these Hispanic individuals “were not disciplined
for acts similar to those for which [she] was purportedly fired.” Aplt. Br. at 24.
A plaintiff can establish pretext by showing that similarly situated employees
were treated differently. Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177,
1181 (10th Cir. 2002). To demonstrate disparate treatment, Gerovic must establish
that “she was similarly situated to [her comparators] in all relevant respects.”
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006). In determining
whether two employees are similarly situated, a “court should also compare the
relevant employment circumstances, such as work history and company policies,
applicable to the plaintiff and the intended comparable employees.” Id. (internal
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quotation marks omitted). Moreover, even employees who are similarly situated
must have been disciplined for conduct of “comparable seriousness” for their
disparate treatment to be relevant. Kendrick, 220 F.3d at 1230. Gerovic has the
burden to show she is similarly situated to the employees with whom she is
comparing herself. Watts v. City of Norman, 270 F.3d 1288, 1293 (10th Cir. 2001).
Here, none of these employees that Gerovic has proffered are similarly situated
comparators.
a. Proposed Comparators
(i) Ms. Viola Chacon
First, Gerovic compares herself to Viola Chacon, a Hispanic custodian.
Gerovic contends that Ms. Chacon “merely received a 10-day suspension, instead of
a termination, despite stealing a plant from the workplace and then lying about it.”
Aplt. Br. at 24. As an initial matter, Gerovic overlooks the fact that Ms. Chacon’s
incident regarding the plant was her first act of dishonesty.
Moreover, the district court reasonably concluded that Ms. Chacon’s
misconduct—“stealing a plant from the workplace”—is “factually distinct from the
misconduct that primarily prompted [Gerovic’s] firing—representing herself as a
police officer on Facebook.” Aplt. App., Vol. III at 135. Whereas the City’s
concerns regarding Gerovic’s misconduct were motivated by important concerns such
as public safety, Ms. Chacon’s misconduct in stealing a plant from the workplace did
not implicate concerns of this same magnitude. Finally, the City ultimately
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terminated Ms. Chacon for a subsequent dishonesty violation. In doing so, the City
acted in a manner that was consistent with its response to Gerovic’s Facebook posts.
(ii) Ms. Danielle Garcia
Next, Gerovic compares herself to Danielle Garcia, a Hispanic employee who
worked for the Utility Department. Gerovic contends that Ms. Garcia was demoted,
rather than terminated, in response to “being rude to a customer and pointing her
middle finger at her.”17 Aplt. Br. at 24. However, Ms. Garcia cannot serve as a
proper comparator because Ms. Garcia was not a custodian, she worked for a
different department, and she worked under a different supervisor. Additionally,
Ms. Garcia had been employed for a substantially longer period of time, as she was
originally hired in 2005. Ms. Garcia also received less prior discipline than Gerovic
did; at the time of her demotion, Ms. Garcia had only received one verbal reprimand.
Finally, unlike Gerovic, Ms. Garcia was demoted for misconduct that did not include
a dishonesty violation.
(iii) Ms. Teresa Luyando
Gerovic also compares herself to Teresa Luyando, a Hispanic custodian.
Gerovic contends that Ms. Luyando “received four or five writeups, including one for
having her shirt completely unbuttoned, and was the object of many complaints about
17
In her opening brief, Gerovic falsely states that Ms. Garcia was only given a
“short suspension pay cut,” Aplt. Br. at 24, despite previously admitting elsewhere
that Ms. Garcia was, in fact, demoted. Aple. App., Vol. II at 122; see id. at 74–75,
86, 92. The record reflects that Ms. Garcia was demoted from the position of Utility
Worker to custodian. Id. at 122 (noting that Ms. Garcia received a Notification of
Involuntary Demotion Disciplinary Action on June 2, 2017).
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fighting with people and yelling at people, but was not fired.” Aplt. Br. at 24. This
comparison is also unpersuasive. As an initial matter, Gerovic has failed to provide
any evidence to support her allegations regarding Ms. Luyando’s conduct, aside from
her own speculation and hearsay, and her testimony that she viewed one disciplinary
write up that Ms. Luyando received. Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004) (noting that “[u]nsubstantiated allegations carry no probative
weight in summary judgment proceedings,” and “evidence, including testimony, must
be based on more than mere speculation, conjecture, or surmise.”). Additionally, Ms.
Luyando was employed for a substantially longer period of time than Gerovic, as Ms.
Luyando worked for the City for 15 or 20 years. Moreover, there is no evidence that
Ms. Luyando was dishonest on more than one occasion.
(iv) Mr. David Chavez
According to Gerovic, Hispanic custodian David Chavez “received starting
pay of $0.50 an hour more than Gerovic was paid at that time.” Aplt. Br. at 25.
However, Gerovic overlooks Mr. Chavez’s employment history; at the time that
Mr. Chavez was hired by the City, he had been a Facilities Manager at Denver Public
Schools for twenty-two years. Mr. Chavez and Gerovic are therefore not similarly
situated, as Mr. Chavez had significantly more relevant experience than Gerovic
which would justify any alleged difference in pay.
(v) Mr. John Gandara
Gerovic also argues that she “was disciplined . . . for not wearing safety shoes,
while at the same time another Hispanic worker, John Gandara, was not disciplined
30
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for the same offense.” Id. However, Gerovic has failed to provide any evidence,
aside from her own conjecture, to support this allegation and establish Mr. Gandara
as a similarly situated comparator.
(vi) Ms. Yvonne Chavez and Ms. Sharon Romero
Lastly, Gerovic contends that “Yvonne Chavez, a Hispanic custodial
supervisor, and Sharon Romero, also Hispanic, were permitted to harass Gerovic
without consequence, despite Gerovic’s unheeded complaints to Lemos.” Id. at 24–
25. Specifically, Gerovic contends that Ms. Chavez performed a “white glove”
inspection of Gerovic’s floor and stairs in the PAB, but that Ms. Chavez did not do
the same for Hispanic custodians. Id. at 25. Additionally, Gerovic asserts that
Ms. Romero was “harassing [her] about the trash in [the] parking lot.” Aple. App.,
Vol. I at 81. Gerovic’s allegations regarding Ms. Chavez and Ms. Romero are
unsupported by any evidence aside from Gerovic’s own conjecture.
b. Discipline Histories and Supervisors of Proposed
Comparators
Gerovic has failed to establish that any of these employees constitute similarly
situated comparators for an additional reason: she has not provided the discipline
histories of the employees in question or the identities of their supervisors. The
district court correctly observed that “this obviously pertinent information” was
“needed to make a proper comparison.” Aplt. App., Vol. III at 135.
First, Gerovic contends that she was not required to provide the discipline
histories of her comparators. However, we have held that similarly situated
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comparators must be subject to the “same standards governing performance
evaluation and discipline.” Kendrick, 220 F.3d at 1232 (internal quotation marks
omitted).
Second, Gerovic asserts that she was not required to identify the supervisors of
her comparators. Contrary to Gerovic’s assertions, however, we have held that to be
“similarly situated” to the plaintiff, a comparator must “share[] the same supervisor”
or decision maker.18 E.E.O.C. v. BCI Coca–Cola Bottling Co. of L.A., 450 F.3d 476,
489 (10th Cir. 2006) (emphasis added). This requirement is a logical one, as
“[d]ifferences in disciplinary decisions ‘may be explained by the fact that the
discipline was administered by different supervisors, or that the events occurred at
different times when the company’s attitudes toward certain infractions were
different.’” Smothers v. Solvay Chemicals, Inc., 740 F.3d 530, 540 (10th Cir. 2014)
(quoting E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992)).19
18
Gerovic cites to Kimble v. Wis. Dep’t of Workforce Dev., 690 F. Supp. 2d
765 (E.D. Wis. 2010), to support her position that similarly situated comparators
need not work for the same supervisors. We are unpersuaded by Gerovic’s attempt to
rely on an out-of-circuit case, especially when this case directly conflicts with the
established authority in our circuit.
19
Even if Gerovic was able to demonstrate differential treatment of similarly
situated employees, Gerovic would still face an uphill battle in her attempt to
establish pretext. We have held that, when a plaintiff “attempts to show pretext
through evidence of differential treatment[,] if the employer’s differential treatment
of similarly-situated employees is ‘trivial or accidental or explained by a
nondiscriminatory motive,’ such treatment is insufficient to create an inference of
discrimination.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168
(10th Cir. 2007) (quoting Kendrick, 220 F.3d at 1232). Here, Gerovic provides no
evidence, beyond her own subjective belief, to demonstrate that an unlawful,
(Cont’d)
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***
In sum, we conclude that Gerovic has failed to demonstrate a genuine dispute
of material fact regarding whether the City Defendants’ asserted reasons for
Gerovic’s termination were a pretext for discrimination. See Debord v. Mercy Health
Sys. of Kan., Inc., 860 F. Supp. 2d 1263 (D. Kan. 2012), aff’d, 737 F.3d 642 (10th
Cir. 2013) (no pretext where employer terminated employee based on her Facebook
posts, which contained inflammatory remarks about her supervisor, and the employee
initially denied making those posts). Accordingly, we conclude that the district court
properly granted summary judgment as to Gerovic’s discrimination claims against the
City Defendants based on her failure to demonstrate pretext, and we affirm the
district court’s grant of summary judgment on this basis.
B. Retaliation Claims Against the City Defendants
The district court granted summary judgment to the City Defendants on
Gerovic’s retaliation claims on two grounds. The district court first concluded that
Gerovic failed to establish a prima facie case because she did not submit sufficient
evidence of a causal connection between her alleged protected activity and her
termination. Additionally, the district court further concluded that Gerovic failed to
show that the City Defendants’ stated reasons for firing her were pretextual.
We assume without deciding that Gerovic established a prima facie case of
retaliation. Instead, we move directly to pretext and conclude her retaliatory
anti-Caucasian motive was responsible for any alleged difference in treatment
between herself and any of the Hispanic employees she cites as comparators.
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discharge claims could not survive summary judgment because she cannot show that
the City’s proffered reasons for her termination were pretextual.
1. Legal Background
Gerovic’s retaliation claims are also assessed under the burden-shifting
framework set forth in McDonnell Douglass. Fye v. Okla. Corp. Comm’n, 516 F.3d
1217, 1225 (10th Cir. 2008).
2. Analysis
To establish a prima facie case of retaliation, a plaintiff must show: (1) she
engaged in protected opposition to discrimination; (2) a reasonable employee would
have found the challenged action materially adverse; and (3) there is a causal
connection between the protected activity and the materially adverse action. Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Here,
Gerovic alleges that she engaged in protected activity because “she complained about
racial discrimination a number of times without any action being taken.” Aplt. App.,
Vol. III at 139 (internal quotation marks omitted). As for the first element of a prima
facie retaliation claim, the district court “assume[d] that [Gerovic] engaged in some
protected activity by complaining about . . . Lemos ‘treating her differently because
she was not Hispanic and constantly harassing her.’”20 Id. As for the second
20
The City Defendants note that they “did not dispute this element solely for
purposes of summary judgment.” Aple. Br. at 39 n.14. According to the City
Defendants, “all the testimonial and documentary evidence in this action (with the
exception of Gerovic’s testimony) demonstrates that she did not report that Lemos
was treating her unfairly because of her race/color.” Id.34
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element, the parties do not dispute that Gerovic’s termination was materially adverse.
As for the third element, however, the district court concluded that Gerovic failed to
present evidence linking her firing with any protected activity.
We will assume without deciding that Gerovic has established a prima facie
case of retaliation and turn to the second step of the McDonnell Douglas framework.
In that regard, we have already determined that the City established legitimate,
non-discriminatory reasons for terminating Gerovic’s employment. See supra
Section III.A.2. Therefore, we proceed to the third step of the McDonnell Douglas
framework, where the burden shifts back to Gerovic to establish a genuine issue of
material fact that the reasons offered by the City for her termination were pretextual.
Gerovic relies on largely the same evidence and arguments to show pretext for
both her discrimination claims and her retaliation claims. Our previous discussion of
Gerovic’s failure to establish pretext for discrimination, therefore, applies in full
force here. See supra Section III.A.2. For the same reasons we concluded that
Gerovic failed to establish pretext for discrimination, we conclude that Gerovic also
failed to establish pretext for retaliation.
None of Gerovic’s arguments convince us to the contrary. As we explained
previously, we are unpersuaded by Gerovic’s arguments that she has established
pretext with evidence that (1) the City Defendants exaggerated the serious nature of
her misconduct; (2) the City Defendants deviated from their ordinary response to
employee misconduct occurring outside of the workplace; (3) Lemos was racially
biased against non-Hispanic employees; and (4) Gerovic received differential
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treatment compared to non-Hispanic employees. Additionally, for the reasons
discussed earlier, we rejected Gerovic’s argument that the district court made
improper credibility determinations relating to Gerovic’s prior incidents of
misconduct.
The only other evidence of pretext which Gerovic offers is the temporal
proximity of her protected activity and her termination. According to Gerovic, the
short window of time between her protected activity and her termination “support[s]
an inference of retaliatory motive.” Aplt. Br. at 40. Granted, Gerovic raises the issue
of temporal proximity in the context of her prima facie case of retaliation—
specifically, she contends that temporal proximity establishes the requisite causal
connection. However, because we have stated that “close temporal proximity is a
factor in showing pretext,” we briefly address Gerovic’s temporal proximity
argument in the context of our pretext analysis. Annett v. Univ. of Kan., 371 F.3d
1233, 1240 (10th Cir. 2004).
Gerovic alleges that she complained to Williamson about Lemos in May 2017,
which is approximately six months before her November 27, 2017, termination.
Gerovic also alleges two other instances of protected activity in support of her
argument that temporal proximity supports an inference of retaliatory motive.21 First,
Gerovic claims that she engaged in protected activity by “complaining to Anne Carter
about Lemos treating her differently because she was not Hispanic and constantly
21
The City Defendants note that they “dispute[] the facts relied on by Gerovic”
regarding these two alleged instances of protected activity. Aple. Br. at 41.
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harassing her” in “September and October of 2017.” Aplt. Br. at 38. Second, she
asserts that, on September 20, 2017, Commander Ron Thomas of the DPD sent an
email to Robinson on Gerovic’s behalf “raising the issue of unfair treatment.” Id.Although temporal proximity can potentially support a finding of pretext, we
have consistently held that “temporal proximity alone is not sufficient to defeat
summary judgment by showing that the employer’s proffered reason is actually
pretext for retaliation.” Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1066
(10th Cir. 2009); see also Medina v. Income Support Div., N.M., 413 F.3d 1131, 1138
(10th Cir. 2005) (“No reasonable jury could conclude that a five-week span of time[,]
. . . without more, meets this standard.”). In other words, “close temporal proximity
can support a finding of pretext only in combination with other evidence of pretext.”
Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1293 (10th Cir. 2013) (emphasis added).
Because we have determined that Gerovic is otherwise unable to establish pretext,
temporal proximity alone cannot establish pretext, either.
In sum, we conclude that Gerovic has failed to demonstrate a genuine dispute
of material fact regarding whether the City Defendants’ asserted reasons for
Gerovic’s termination were a pretext for retaliation. Accordingly, we conclude that
the district court properly granted summary judgment as to Gerovic’s retaliation
claims against the City Defendants based on her failure to demonstrate pretext, and
we affirm the district court’s grant of summary judgment on this basis.
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C. National Origin Claims Against the City Defendants
We now turn to Gerovic’s national origin-based discrimination claims against
the City Defendants. The district court granted summary judgment to the City
Defendants on these claims because, among other reasons, Gerovic failed to exhaust
her administrative remedies by raising a national origin discrimination claim in her
EEOC complaint. Despite Gerovic’s arguments to the contrary, we conclude that the
district court properly determined that Gerovic failed to administratively exhaust her
national origin claims.
1. Legal Background
Under Title VII, a plaintiff’s failure to exhaust her federal claims enables an
employer to raise lack of exhaustion as an affirmative defense. Lincoln v. BNSF Ry.
Co., 900 F.3d 1166, 1185 (10th Cir. 2018). “[A] plaintiff’s claim in federal court is
generally limited by the scope of the administrative investigation that can reasonably
be expected to follow the charge of discrimination submitted to the EEOC.” Jones v.
United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (internal quotation
marks omitted).
2. Analysis
Here, Gerovic concedes that she did not check the “national origin” box on her
EEOC charge of discrimination. She relies instead on the supplemental description
that she attached to her EEOC charge, which states that she “is a naturalized US
citizen who arrived in America after enduring many years of war in her birthplace,
Bosnia-Herzegovina.” Aplt. App., Vol. III at 113. Additionally, Gerovic points out
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that “[t]here is no mention of [her] non-Hispanic status in either of the first two
paragraphs.” Aplt. Br. at 33. In Gerovic’s view, therefore, “a reasonable
interpretation of the paragraphs is that the discriminatory behavior resulted from her
country of origin.” Id.This argument is unavailing. Contrary to Gerovic’s assertions, the EEOC
could reasonably view these statements about Gerovic’s citizenship and birthplace as
background information in the introduction of her supplemental description. The
single reference to Gerovic’s national origin in the attachment to her EEOC charge
does not provide the EEOC with any information about when Gerovic became a U.S.
citizen, or whether the City had any knowledge of her birthplace.
Gerovic also contends that her charge describes a national origin claim
because it states her belief that Lemos has a “pattern of disciplining employees under
him more harshly when the employee is not Latino.” Aplt. Br. at 33 (internal
quotation marks omitted) (quoting Aplt. App., Vol. III at 115). We are unpersuaded.
As the City Defendants correctly note, “[i]t is unclear how ‘not Latino’ is related to
Bosnians in particular and not Serbians, Romanians, Croatians, Bulgarians,
Hungarians, Russians,” or a host of other national origins. Aple. Br. at 34. In other
words, Gerovic’s assertion that she was discriminated against because she was not
Latino did not provide the City with notice of a national origin claim based on
Gerovic being Bosnian.
In sum, the statements that Gerovic relies on in her charge are insufficient to
cause the EEOC to investigate a national origin claim. As the district court correctly
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noted, “[t]he EEOC complaint, like the Complaint in this case, is devoid of any
allegations that [Gerovic] was treated differently because she came from Bosnia or
even that her national origin was ever mentioned or alluded to by any Defendant.”
Aplt. App., Vol. III at 136. Under these circumstances, it is unreasonable to expect
the EEOC to widen the scope of its administrative investigation beyond race and
color discrimination to also include Gerovic’s national origin.22 Accordingly, we
conclude that Gerovic failed to administratively exhaust her national origin claims,
and we affirm the district court’s grant of summary judgment as to Gerovic’s national
origin claims against the City Defendants.
D. § 1983 Claims Against the HSS Defendants
Lastly, we address Gerovic’s § 1983 claims against the HSS Defendants. The
district court granted summary judgment to the HSS Defendants on these claims
based on its determination that the HSS Defendants were not the proximate cause of
any violation of Gerovic’s rights. The district court reasoned that the HSS
Defendants could not have been the proximate cause because they acted as
intermediaries and did not participate in the decision to issue the BOLO posters that
allegedly violated Gerovic’s rights. For the reasons discussed below, we conclude
22
In fact, the record reflects that the EEOC did not have notice of Gerovic’s
national origin claims. In one of the EEOC’s internal documents, a Supervisory
Investigator described Gerovic’s charge as “alleging that she was harassed,
disciplined, retaliated against[,] and discharged from her position as a custodial
worker because of her color, not-specified, and race, white.” Aple. App., Vol. II
at 95 (emphasis added).
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that the district court properly granted summary judgment as to Gerovic’s § 1983
claims against the HSS Defendants.
1. Legal Background
Section 1983 imposes liability on anyone who causes a constitutional
deprivation while acting under color of state law. 42 U.S.C. § 1983. To establish a
claim under § 1983, a plaintiff must prove: “(1) a violation of rights protected by the
federal Constitution or created by federal statute or regulation, (2) proximately
caused (3) by the conduct of a person (4) who acted under color of [state law].”
Beedle v. Wilson, 422 F.3d 1059, 1064 (10th Cir. 2005) (emphasis added) (internal
quotation marks and brackets omitted).
Courts employ general tort principles of causation in § 1983 cases to
determine whether the alleged constitutional violation caused a plaintiff’s
injury. Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012). General tort
principles of causation provide that even where the defendant’s conduct does not
directly cause the plaintiff’s injuries, the defendant can still be liable if his conduct
was the “proximate cause” of the injury. Trask v. Franco, 446 F.3d 1036, 1046 (10th
Cir. 2006). Proximate cause exists where the defendant “set in motion a series of
events that the defendant[ ] knew or reasonably should have known would cause
others to deprive the plaintiff of his constitutional rights.” Id. (internal quotation
marks and brackets omitted). “In order for liability to arise under § 1983, a
defendant’s direct personal responsibility for the claimed deprivation of a
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constitutional right must be established.” Trujillo v. Williams, 465 F.3d 1210, 1227
(10th Cir. 2006).
2. Analysis
Here, Gerovic contends that she submitted sufficient evidence that the HSS
Defendants were the proximate cause of the violation of her constitutional rights.
According to Gerovic, the HSS Defendants may be held liable for their “participation
in the creation and posting of the BOLO posters,” even though it is undisputed that
the HSS Defendants acted at the direction of the City and lacked any discriminatory
motive towards Gerovic. Aplt. Br. at 47.
We conclude the district court properly granted summary judgment as to
Gerovic’s § 1983 claims against the HSS Defendants. As an initial matter, it is
undisputed that the HSS Defendants had no independent authority to issue the BOLO
posters of Gerovic. In fact, Gerovic acknowledges that “before anyone at HSS made
any decision to put out a BOLO for any employees of the City and County of Denver,
the source of the BOLO, which would typically be a representative of a City
department, would have to be involved.” Aplt. Br. at 9. Gerovic concedes that the
BOLO posters at issue were created and distributed as a result of the City’s “order to
HSS,” rather than the HSS Defendants’ own initiative. Id. (emphasis added).
Moreover, the HSS Defendants did not have any input or influence regarding the
City’s decision to issue Gerovic’s BOLO posters. Similarly, the HSS Defendants did
not have any discretion to rescind the BOLO posters after Gerovic complained about
them upon her return from administrative leave; rather, the HSS Defendants had to
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wait for the City’s instructions before removing the BOLO posters. Accordingly,
both parties agree that the HSS Defendants were not the decision makers with respect
to the posting of the BOLO posters at Gerovic’s place of employment.
Not only is there no evidence that the HSS Defendants exercised any
decision-making authority over Gerovic’s BOLO posters, there is also no evidence
that the HSS Defendants possessed any discriminatory motive toward Gerovic. In
fact, as the HSS Defendants correctly note, “there is evidence suggesting that HSS
took a conciliatory and understanding approach toward Ms. Gerovic,” and that
“Ms. Gerovic viewed HSS as confidants with respect to her dispute against the
[C]ity.” HSS Br. at 15. For example, the record reflects that after Gerovic learned
about the BOLO posters and became “visibly upset,” she went to the office of
Defendant Knoedler, the Facility Security Supervisor at HSS, to share her concerns.
Aplt. App., Vol. II at 13, 38. Later that same day, Knoedler sent an email to Lemos
memorializing his conversations with Gerovic. Knoedler represents that he told
Gerovic he “was willing [to] attest to her being in distress” about the BOLO posters,
but Gerovic said that she “wanted to try and keep [Knoedler] out of the situation,”
and that she would raise this issue with human resources on her own. Id. at 39.
Not only does Gerovic fail to allege that the HSS Defendants possessed any
discriminatory motive towards her, but Gerovic also appears to concede that the HSS
Defendants, in fact, did not possess any such malintent. Specifically, Gerovic
maintains that a subordinate defendant may be liable under § 1983 where they have
“direct personal responsibility” for the alleged constitutional violation,
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“notwithstanding the fact that he was acting at the direction of a third party, and there
is no evidence that the subordinate defendant himself had discriminatory intent.”
Aplt. Br. at 48 (emphasis added) (internal quotation marks omitted). We disagree
with Gerovic’s assertion.
Gerovic has not presented any evidence that the HSS Defendants possessed a
discriminatory motive toward her, or that they set in motion the events leading to the
BOLO posters being issued. Under these circumstances, we conclude that the HSS
Defendants could not have been the proximate cause of any violation of Gerovic’s
constitutional rights. The district court, therefore, properly determined that the HSS
Defendants are not liable for Gerovic’s § 1983 claims against them.
Gerovic’s arguments to the contrary are unconvincing. Gerovic disagrees with
the district court’s view that a defendant without any decision-making role or
discriminatory motive leading to challenged action cannot be liable under § 1983.
According to Gerovic, “a defendant may have ‘direct personal responsibility’ for a
constitutional violation that he effected, notwithstanding the fact that he was acting at
the direction of a third party, and there is no evidence that the ‘subordinate’
defendant himself had discriminatory intent.” Aplt. Br. at 48. Here, Gerovic
contends that the HSS Defendants “had substantial decision-making authority in the
content, presentation[,] and placement of the posters,” and that these “decisions had
an effect on Gerovic’s rights equal to or greater than that of the simple decision by
the City Defendants to create the posters in the first place.” Reply Br. at 19. In
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Gerovic’s view, therefore, the HSS Defendants “bore direct personal responsibility
for, and were the proximate cause of, the violation.” Id. at 20.
The fact that the HSS Defendants carried out the City’s orders to make and
distribute the BOLO posters does not inevitably mean that the HSS Defendants were
the proximate cause of the alleged constitutional violation. Here, the HSS
Defendants neither set in motion the series of events leading to the issuance of the
BOLO posters, nor did they know or reasonably should have known that their actions
would violate Gerovic’s constitutional rights.
Unlike the cases we cited in Maestas where subordinate employees were held
liable for significantly contributing to adverse employment decisions made by others,
here the HSS Defendants did not personally participate in the decision to issue
Gerovic’s BOLO posters. Maestas v. Segura, 416 F.3d 1182, 1191 (10th Cir. 2005).
Instead, the HSS Defendants only participated in implementing the City’s decision to
do so. Although the HSS Defendants followed the City’s instructions to issue the
BOLO posters, this minimal level of involvement does not rise to the level required
to establish proximate causation here. See Fuqua v. City of Altus, No. CIV-17-115-
HE, 2018 WL 1702339, at *1–2 (W.D. Okla. Apr. 6, 2018) (noting that causation
under Maestas requires “some level of formal involvement in the eventual decision”
that violated the plaintiff’s rights, such as “initiating an investigation, recommending
the [plaintiff’s] discharge, investigating [the plaintiff’s] conduct, or instigating
charges” (citing Maestas, 416 F.3d at 1191)).
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Further, Gerovic has not pointed to any evidence that the HSS Defendants
knew or should have known that creating and posting the BOLO posters might
violate her constitutional rights. As the district court correctly noted, “[a]lthough the
HSS Defendants had a ministerial role in implementing the City’s decision, there is
no evidence that they could have reasonably foreseen that the notices would violate
[Gerovic’s] rights.” Aplt. App., Vol. III at 132; see Lippoldt v. Cole, 468 F.3d 1204,
1220 (10th Cir. 2006) (concluding that an assistant city attorney’s conduct was a
substantial factor in the violation of the plaintiffs’ First Amendment rights by
denying permits for an anti-abortion parade, where “[d]espite discovering that
denying the parade permits for the reasons offered by the City was most likely
unconstitutional,” the city attorney advised the deputy police chief to sign the denial
letter). Under these circumstances, where the HSS Defendants merely acted as
intermediaries and did not participate in the decision to issue the BOLO posters, the
district court did not err in concluding that the HSS Defendants cannot be held liable
under § 1983 because the requisite causal connection had not been met.
In sum, the HSS Defendants could not have been the proximate cause of any
violation of Gerovic’s rights, as required for her § 1983 claims against the HSS
Defendants. The parties do not dispute that the HSS Defendants did not have any
input in the decision to issue Gerovic’s BOLO posters, and the HSS Defendants did
not possess any discriminatory motive toward her. Moreover, the record does not
contain any evidence that the HSS Defendants knew or should have known that the
issuance of the BOLO posters would violate Gerovic’s constitutional rights.
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Accordingly, we conclude that the district court properly granted summary judgment
as to Gerovic’s § 1983 claims against the HSS Defendants based on her failure to
demonstrate proximate cause, and we affirm the district court’s grant of summary
judgment on this basis.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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