Appellate Case: 21-1212 Document: 010110647175 Date Filed: 02/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court NICOLAS DONEZ,
Plaintiff - Appellant
v. No. 21-1212 (D.C. No. 1:19-CV-00285-CMA-NRN) LEPRINO FOODS, INC., (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges. _________________________________
Nicolas Donez worked as a foreperson for Leprino Foods (“Leprino”). On
February 9, 2016, Frank Levar, another Leprino employee, pushed Mr. Donez, who
pushed Mr. Levar in response. Mr. Levar then knocked Mr. Donez unconscious.
Leprino fired both employees.
Mr. Donez sued. He alleged Leprino fired him based on (1) exercising his right to
self-defense in violation of Colorado law and (2) his race in violation of Title VII of the
Civil Rights Act. The district court granted summary judgment for Leprino.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1212 Document: 010110647175 Date Filed: 02/18/2022 Page: 2
I. BACKGROUND
A. Factual History
“We present the facts in the light most favorable to [Mr. Donez], drawing all
reasonable inferences in his favor.” Donahue v. Wihongi, 948 F.3d 1177, 1183 (10th Cir.
2020).
The Physical Altercation Between Mr. Donez and Mr. Levar
Mr. Donez is Hispanic. He was an at-will employee at Leprino, which
manufactures cheese in Fort Morgan, Colorado. Mr. Donez was a foreperson in the
Whey Department. On February 9, 2016, the supervisor of the Whey Department was
out sick, leaving Mr. Donez “in charge of that department as a supervisor and as a
foreman.” App., Vol. I at 128-29. During his shift, Mr. Donez’s verbal disagreement
with Mr. Levar led to a physical altercation in which Mr. Levar first pushed Mr. Donez.
Mr. Donez pushed Mr. Levar in response. Mr. Levar then knocked Mr. Donez
unconscious, sending him to the hospital.1 Mr. Donez suffered “an injury around the
neck area and the back of the head.” App., Vol. II at 419.
A few hours later, Leprino human resources (“HR”) personnel Risa Esterly-
Wessbecker and Julia Lambert traveled to the hospital and spoke with Mr. Donez. He
told Ms. Esterly-Wessbecker “[t]hat [Mr. Levar] pushed him, punched him. And he
could not recall anything else.” Suppl. App., Vol. I at 53. Mr. Donez also provided
1 On February 11, 2016, Leprino fired Mr. Levar after he admitted to Leprino HR personnel that he punched Mr. Donez. The letter firing Mr. Levar explained that Leprino “ha[d] zero tolerance for workplace violence.” App., Vol. III at 621.
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Leprino with a written statement dated February 10, 2016. It explained that after the
verbal argument, Mr. Levar “became aggressive, pushed me in my chest. Then
everything went black.” Id. at 69.
Detective Steve Vosburg of the Fort Morgan Police Department (“FMPD”) also
interviewed Mr. Donez at the hospital on February 9. Mr. Donez told the detective that
he and Mr. Levar “were arguing and he remembered [Mr. Levar] pushing and when [Mr.
Levar] pushed him, [Mr. Donez] pushed him back.” App., Vol. II at 420-21. Detective
Vosburg spoke to Ms. Esterly-Wessbecker on February 10, 2016, and relayed Mr.
Donez’s statement to her. Suppl. App., Doc. 10867614 (“Audio Recording 3”); Suppl.
App., Vol. I at 56.
On February 22, Kelly Soja, a Leprino HR official, wrote an email to Ms.
Lambert, asking, “Did we get the police reports, detective’s statements on his
conversation with [Mr. Donez], etc? We need those ASAP if we have not.” App., Vol. II
at 438. A few minutes later, Ms. Soja again emailed Ms. Lambert, stating, “If we don’t
get that detective’s statement on what [Mr. Donez] said to him, we probably can’t term
him.” Id. at 437.
Upon receiving a copy of the FMPD police report, which stated that Mr. Donez
admitted to pushing Mr. Levar, Ms. Esterly-Wessbecker called Mr. Donez to confirm this
fact. Mr. Donez told Ms. Esterly-Wessbecker that “he remembered when he spoke to the
police officer that he did state that he had shoved [Mr. Levar].” App., Vol. I at 92.
On February 29, Ms. Esterly-Wessbecker met with Mr. Donez and terminated his
employment. Mr. Donez then told Ms. Esterly-Wessbecker he had pushed Mr. Levar in
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self-defense. This was the first time Mr. Donez claimed self-defense to anyone at
Leprino. Id. at 75; Suppl. App., Vol. II at 205.2 According to Mr. Donez, Ms. Esterly-
Wessbecker explained “that it didn’t matter” if he was acting in self-defense. App., Vol.
I at 75. Ms. Esterly-Wessbecker gave Mr. Donez a letter stating that Leprino was firing
him because “[d]uring our investigation you verbally admitted to us you pushed [Mr.
Levar]. Leprino Foods Company has no tolerance for workplace violence.” App., Vol.
III at 620.
Comparators
To support his Title VII claim, Mr. Donez relied on evidence purportedly
demonstrating that Leprino disciplined him and other Hispanic employees more harshly
than non-minority employees who engaged in similar conduct.3 His comparators were:
Frank Levar, a White employee, was involved in a 2010 or 2011 altercation with co-worker Shane Tucker during which the men had a verbal dispute and Mr. Levar pushed Mr. Tucker. Leprino HR personnel Shane Cole and Don Northrup handled the incident. Mr. Levar was not disciplined.
2 Leprino contends Mr. Donez did not claim self-defense at this meeting. Aplee. Br. at 10 n.3. The part of the record it cites in support of this argument, however, does not say this. See App., Vol. I at 92. Regardless, because we view the facts in the light most favorable to Mr. Donez, we treat as true that Mr. Donez told Ms. Esterly- Wessbecker he was acting in self-defense. 3 Before the district court, Mr. Donez submitted evidence of “8 workplace incidents involving 6 [Leprino] employees between 2007 and 2018” to support his Title VII claim. App., Vol. III at 549. On appeal, though he mentions all eight incidents, he argues only that “Leprino’s disciple [sic] of Mr. Levar, Mr. Morrison and termination of Ms. Campos should have been admitted because the a [sic] reasonable comparators.” Aplt. Br. at 13. He has therefore abandoned any argument that the other three employees were suitable comparators, and we do not discuss them here. See Stender v. Archstone- Smith Operating Tr., 910 F.3d 1107, 1117 (10th Cir. 2018).
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Shawn Morrison, a White employee, was accused of “rough-housing” and inappropriate touching on two occasions in March and April 2016. In March, a Leprino employee complained to Ms. Lambert that he was “tired of [Mr. Morrison] rough-housing, grabbing shoulders, pretend[ing]to choke hold, playing around.” Suppl. App., Vol. II at 218. Then in April, a Leprino employee reported Mr. Morrison for picking up a female employee and “cupp[ing] her rear end with his hand.” App., Vol. I at 104-05. Ms. Soja and Ms. Lambert responded to the incident, and Ms. Lambert issued Mr. Morrison a “last and final warning,” stating that “any further performance issues within a 12-month period [] you will be subject to immediate termination.” App., Vol. II at 538.
Crystal Campos, an Hispanic employee, kicked a co-worker during an incident in June of 2017. Ms. Lambert fired Ms. Campos.
B. Procedural History
The district court issued orders (1) granting in part and denying in part Leprino’s
motion for summary judgment (the “First Summary Judgment Order”), (2) excluding Mr.
Donez’s comparator evidence, and (3) granting Leprino’s renewed motion for summary
judgment (“the Second Summary Judgment Order”).
First Summary Judgment Order
The First Summary Judgment Order dismissed Mr. Donez’s state law wrongful
termination claim but allowed his Title VII discrimination claim to go forward.
a. Wrongful termination in violation of public policy
Mr. Donez alleged that Leprino violated public policy by firing him for asserting
his rights to (1) self-defense and (2) receive workers’ compensation benefits. The district
court concluded that Mr. Donez had failed to demonstrate that employees have a “job-
related right” to act in self-defense under Colorado law. App., Vol. II at 530-33. It
further held that the workers’ compensation claim failed because Mr. Donez had not
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provided evidence establishing a causal connection between the exercise of his workers’
compensation rights and his termination.4
b. Title VII—discrimination
The district court determined that two factual issues precluded summary judgment
on Mr. Donez’s Title VII claim. First, it said there were genuine issues of material fact as
to whether Mr. Donez established, via comparator evidence, that he was treated less
favorably than similarly situated, non-minority employees. Second, the court determined
there was a genuine factual dispute as to whether Leprino’s reason for firing Mr.
Donez—that he pushed Mr. Levar—was pretextual because there was evidence from
which a rational jury could find that (1) Leprino decided to fire Mr. Donez and then
sought a rationale to justify its action, and (2) Mr. Donez “was the victim of an attack and
not a willing participant in a fight.” Id. at 524.
Motion in Limine
The parties then filed cross-motions in limine, which the district court granted in
part and denied in part. As relevant here, the court excluded Mr. Donez’s comparator
evidence, reasoning that the comparators were not similarly situated to Mr. Donez, and
evidence related to their misconduct was therefore not relevant to establishing a Title VII
violation. The court explained:
Mr. Levar’s 2010/2011 incident was not relevant to pretext because it occurred “too long before Mr. Donez’s firing in February 2016.” App., Vol. III at 551.
4 Mr. Donez has abandoned his workers’ compensation argument on appeal. See Scarlett v. Air Methods Corp., 922 F.3d 1053, 1067 (10th Cir. 2019).
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Mr. Morrison’s 2016 incidents were not relevant to pretext because (1) Mr. Morrison was disciplined for violating Leprino’s “policy against workplace horseplay,” whereas Mr. Donez was fired for violating the company’s Workplace Security Policy; (2) different HR personnel disciplined them; and (3) Mr. Morrison was not a supervisor, and Mr. Donez was. Id. at 551- 52. Ms. Campos’s 2017 incident “occurred too long after Mr. Donez’s firing to be relevant to a showing of pretext.” Id. at 551.
Second Summary Judgment Order
Leprino next filed a renewed motion for summary judgment. The district court
granted the renewed motion, concluding that without the now-excluded comparator
evidence, Mr. Donez could not establish a prima facie case for employment
discrimination because his remaining evidence was “insufficient to give a rise to an
inference of discrimination.” App., Vol. III at 633.5
II. DISCUSSION
We review a district court’s grant of summary judgment de novo, applying the
same standards as the district court under Federal Rule of Civil Procedure 56(a). Jordan
v. Maxim Healthcare Servs., Inc., 950 F.3d 724, 730 (10th Cir. 2020). We draw all
reasonable inferences and resolve factual disputes in favor of Mr. Donez. Id. We will
affirm “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
5 Although the district court excluded the comparator evidence after deciding it was not relevant to proving pretext, it ultimately granted Leprino’s renewed motion for summary judgment because Mr. Donez could not establish a prima facie case of discrimination.
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We first address the district court’s grant of summary judgment for Leprino on the
wrongful termination claim and then turn to the Title VII discrimination claim.
A. Mr. Donez’s Wrongful Termination Claim
We affirm the grant of summary judgment in favor of Leprino on Mr. Donez’s
wrongful termination claim. When Leprino fired Mr. Donez, an at-will employee, it was
unaware that he claimed to have pushed Mr. Levar in self-defense. Leprino therefore
could not have fired him for exercising a purported right to self-defense.6
Legal Background
Under Colorado law, an employer may fire an at-will employee without cause
unless the plaintiff-employee can establish the termination violated public policy. Rocky
Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 523 (Colo. 1996). To establish
a public policy exception, the plaintiff must show:
(1) the employer directed the employee to perform an illegal act as part of the employee’s work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute related to public health, safety, or welfare, or would undermine a clearly expressed policy relating to the employee’s basic responsibility as a citizen or the employee’s right or privilege as a worker; (3) the employee was terminated as the result of refusing to perform the act directed by the employer; and (4) the employer was aware that the employee’s refusal to perform the act was based on the employee’s reasonable belief that the directed act was unlawful.
6 Though the district court resolved the case on a different basis, “we may affirm on any basis supported by the record, even if it requires ruling on arguments not reached by the district court or even presented to us on appeal.” Hayes v. SkyWest Airlines, Inc., 12 F.4th 1186, 1201 (10th Cir. 2021) (quotations omitted).
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Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 281 (Colo. App.
2010) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992)) (spacing
added).
For a public policy to be the basis for a wrongful termination claim, it “must serve
the public interest and be sufficiently concrete to notify employers and employees of the
behavior it requires.” Mariani, 916 P.2d at 525. “Not all potential sources of public
policy are of sufficient gravity to outweigh the precepts of at-will employment. . . . The
General Assembly is the branch of government charged with creating public policies, and
the courts may only recognize and enforce such policies.” Crawford Rehab. Servs., Inc.
v. Weissman, 938 P.2d 540, 553 (Colo. 1997).
The Colorado Supreme Court has “unambiguously recognized that the cause of
action [for wrongful termination] is not available unless the employer was aware or
should have been aware of the protected action prior to its decision to terminate the
employee.” Mowry v. United Parcel Serv., Inc., 280 F. App’x 702, 710 (10th Cir. 2008)
(unpublished) (citing Lorenz, 823 P.2d at 110);7 see also Barlow v. C.R. England, Inc.,
703 F.3d 497, 507-09 (10th Cir. 2012) (to establish a prima facie case of wrongful
termination, plaintiff must demonstrate causation—i.e., that he was fired for engaging in
protected activity).
7 We cite this unpublished decision only for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1.(A).
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Analysis
Mr. Donez argues that he was fired in violation of “a well-established public
policy for all individuals, including employees, to defend[] themselves.” Aplt. Br. at 16.
Thus, he contends, the district court erred in granting summary judgment to Leprino on
his claim for wrongful termination.
The Colorado Supreme Court has not recognized a job-related right to self-
defense. We need not predict whether it would do so here because Mr. Donez has not
established that Leprino knew he claimed self-defense when it decided to fire him. His
wrongful termination claim therefore fails.
The record shows Mr. Donez did not inform anyone at Leprino that he pushed Mr.
Levar in self-defense until after Ms. Esterly-Wessbecker gave him the termination letter.
See App., Vol. I at 75; Suppl. App., Vol. II at 205. To show wrongful termination in
violation of public policy, Mr. Donez must establish that Leprino “was aware or should
have been aware of the protected action prior to its decision to terminate [him].” Mowry,
280 F. App’x at 710 (citing Lorenz, 823 P.2d at 109-110). Because Leprino decided to
fire Mr. Donez before it knew, or should have known, that he claimed to have pushed Mr.
Levar in self-defense, it could not have fired him for acting in self-defense. Even if
Colorado would recognize self-defense as a public policy protection against at-will
termination, Mr. Donez has thus failed to establish causation—that he was fired due to
exercise of an established public policy interest—a necessary element of a prima facie
case of wrongful termination. See Bonidy, 232 P.3d at 281.
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Our decisions about federal retaliation claims reinforce this conclusion. For
example, in Sabourin v. University of Utah, the plaintiff alleged his employer fired him
for “going over [his supervisor’s] head to obtain” leave under the Family and Medical
Leave Act. 676 F.3d 950, 958 (10th Cir. 2012). We affirmed summary judgment for the
employer, explaining “the uncontradicted evidence show[ed] that [the supervisor]
decided to lay off [plaintiff] before she learned that he might take FMLA leave.” Id. The
retaliation claim therefore failed because “there was no causal connection between the
protected activity (the request for FMLA leave) and the adverse action (the reduction in
force).” Id. at 959 (quotations and alterations omitted); see also Kilcrease v. Domenico
Transp. Co., 828 F.3d 1214, 1226 (10th Cir. 2016).
Mr. Donez offers two arguments as to why he established a prima facie case of
wrongful termination despite not telling Leprino he was acting in self-defense until after
it decided to fire him. Neither is persuasive.
First, he contends Leprino’s investigation was inadequate because it allowed the
company to remain willfully ignorant of the fact he was acting in self-defense. In
support, Mr. Donez points out that “Leprino never asked [] if he was acting in self-
defense.” Aplt. Reply Br. at 5. But based on the record, no reasonable juror would
conclude Leprino’s investigation was inadequate. Leprino (1) interviewed Mr. Donez at
the hospital; (2) solicited a written statement from him; (3) relied on the police report,
which incorporated information from Detective Vosburg’s interview with Mr. Donez and
other Leprino employees; (4) called Mr. Donez to confirm facts in the police report; and
(5) interviewed employees or requested statements from them regarding the altercation.
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Second, Mr. Donez argues that Leprino knew he was acting in self-defense given
that (1) the police report and a report Leprino submitted to OSHA referred to Mr. Donez
as “the victim,” (2) Mr. Levar admitted to assaulting Mr. Donez, and (3) Mr. Levar was
arrested for his role in the incident while Mr. Donez was not. But none of this evidence
sheds light on Mr. Donez’s reason for pushing Mr. Levar.
The OSHA report refers to Mr. Donez as “the victim,” but Leprino did not use this
language—it was a default term on the OSHA form. See App., Vol. III at 622-23.
Notably, the section of the form containing Leprino’s explanation of the altercation refers
to Mr. Donez as “[t]he injured” and not “the victim.” Id. at 622. And one of the
statements in the police report referring to Mr. Donez as “the victim” was made before
law enforcement even knew Mr. Donez had pushed Mr. Levar, indicating that FMPD
personnel used the term for reasons other than describing Mr. Donez’s role in the fight or
his motivation for pushing Mr. Levar. See App., Vol. II at 417.
Nor can we conclude Leprino knew Mr. Donez was acting in self-defense based
on Mr. Levar’s description of the fight or that only Mr. Levar was arrested. Although
Mr. Levar told several employees that he “hit” or “knocked out” Mr. Donez, id. at 399,
410, such statements, along with his arrest, do not reveal Mr. Donez’s role in the dispute.
And there is no evidence that Leprino knew Mr. Donez would not be charged when it
decided to fire him.
Finally, Mr. Donez’s statements regarding the incident indicate that Mr. Levar
stopped acting as the aggressor after he initially pushed Mr. Donez. App., Vol. I at 74.
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Leprino, which relied on those statements, thus had no reason to believe Mr. Donez was
defending himself when he pushed Mr. Levar.
* * * *
Mr. Donez has not established that, when Leprino decided to fire him, it knew or
should have known he claimed to be acting in self-defense when he pushed Mr. Levar.
Thus, even assuming the Colorado Supreme Court were to recognize a job-related right to
self-defense, something it has yet to do, his claim would still fail. We affirm the district
court’s grant of summary judgment in favor of Leprino on Mr. Donez’s wrongful
termination claim.
B. Mr. Donez’s Discrimination Claim
We affirm the district court’s grant of summary judgment on Mr. Donez’s
discrimination claim. We do not decide whether the district court (1) abused its
discretion in excluding Mr. Donez’s comparator evidence or (2) erred in determining that
the remaining evidence failed to establish a prima facie case of discrimination. Rather,
we assume Mr. Donez’s comparator evidence was admissible but conclude based on all
the evidence that Mr. Donez has not established pretext.8
“Title VII of the Civil Rights Act of 1964 . . . prohibits employment
discrimination on the basis of race, color, religion, sex, or national origin.” Ricci v.
8 We therefore affirm the district court on this claim but do so on an alternate basis. Hayes, 12 F.4th at 1201.
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DeStefano, 557 U.S. 557, 577 (2009). Employers cannot discriminate “in hiring, firing,
salary structure, promotion and the like.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 342 (2013).
a. McDonnell Douglas framework
Because Mr. Donez does not present direct evidence of discrimination, we apply
the McDonnell Douglas burden-shifting framework to his Title VII claim. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see also Fassbender v.
Correct Care Sols., LLC, 890 F.3d 875, 884 (10th Cir. 2018). Under this framework, Mr.
Donez first must establish a prima facie case of discrimination by showing that “(1) [he]
belongs to a protected class; (2) [he] suffered an adverse employment action; and (3) the
challenged action took place under circumstances giving rise to an inference of
discrimination.” E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007). Once he
makes this showing, “the burden shifts to [Leprino] to articulate a legitimate,
nondiscriminatory reason for the adverse action.” Id. If Leprino does this, the burden
shifts back to Mr. Donez, who must “show that there is a genuine issue of material fact as
to whether the employer’s proffered reasons are pretextual.” Id.
b. Pretext
In evaluating whether a plaintiff has established pretext, “we are obliged to
consider [the] evidence in its totality.” Orr v. City of Albuquerque, 531 F.3d 1210, 1215
(10th Cir. 2008). The burden of establishing pretext “is more demanding [than the
burden of establishing a prima facie case] and requires a plaintiff to assume the normal
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burden of any plaintiff to prove his or her case at trial.” Lobato v. New Mexico Env’t
Dep’t, 733 F.3d 1283, 1293 (10th Cir. 2013) (quotations omitted).
“A plaintiff can establish pretext by showing the defendant’s proffered
nondiscriminatory . . . explanations for its actions are so incoherent, weak, inconsistent,
or contradictory that a rational factfinder could conclude they are unworthy of belief.”
Hiatt v. Colorado Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017) (quotations and
alterations omitted). But “[e]vidence that the employer should not have made the adverse
employment decision—for example, that the employer was mistaken or used poor
business judgment—is not sufficient to show that the employer’s explanation is unworthy
of credibility.” Id. (quotations and alterations omitted).
“[A] plaintiff may [] show pretext on a theory of disparate treatment by providing
evidence that he was treated differently from other similarly-situated, nonprotected
employees who violated work rules of comparable seriousness.” Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000). A similarly-situated
employee “shares the same supervisor, is subject to the same standards governing
performance evaluation and discipline, and has similar relevant employment
circumstances, such as work history.” Hiatt, 858 F.3d at 1318.
Mr. Donez’s comparator evidence and his other circumstantial evidence do not
establish pretext. First, of his three alleged comparators, Mr. Donez was not similarly
situated to two of them, and any similarity with the third is not enough to show pretext.
Second, Mr. Donez’s other circumstantial evidence—Ms. Soja’s emails inquiring about
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the police report and Leprino’s investigatory procedures—shows that Leprino fired Mr.
Donez for pushing Mr. Levar and does not establish pretext.
a. Comparator evidence
i. Mr. Levar
Mr. Donez contends he was similarly situated to Mr. Levar when the latter pushed
a co-worker during a dispute in 2010 or 2011 but was not disciplined. Mr. Levar and Mr.
Donez were not similarly situated regarding that incident. But they were as to their joint
involvement in the 2016 altercation.
1) 2010/2011 incident
Mr. Levar’s 2010/2011 incident does not supply competent comparator evidence.
First, the HR decisionmakers who handled Mr. Levar’s 2010/2011 incident—Mr.
Cole and Mr. Northrup—were not involved in the 2016 decision to fire Mr. Donez. HR
officials Ms. Esterly-Wessbecker, Ms. Soja, and Ms. Lambert were involved in that
decision. This distinction renders Mr. Levar an unsuitable comparator because generally,
to be similarly situated, the plaintiff and the comparator must “share a supervisor or
decision-maker.” Ibrahim v. All. for Sustainable Energy, LLC, 994 F.3d 1193, 1196
(10th Cir. 2021); see also Rivera v. City & Cnty. of Denver, 365 F.3d 912, 922 (10th Cir.
2004) (“Comparison of one disciplinary action with another ordinarily is relevant only to
show the bias of the person who decided upon the disciplinary action.”). Because
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different decisionmakers handled the incidents, Mr. Levar in 2010/2011 and Mr. Donez
in 2016 were not similarly situated.9
Second, Mr. Levar’s 2010/2011 incident occurred roughly five years before the
2016 altercation and is too remote to demonstrate pretext. As we have explained,
comparator evidence involving temporally remote events has diminished probative value
because “[e]mployers’ disciplinary practices necessarily change over time.” Kendrick,
220 F.3d at 1233-34. We have explained, for example, that an incident that occurred two
years before the plaintiff’s firing had “diminishe[d]” evidentiary value. Timmerman v.
U.S. Bank, N.A., 483 F.3d 1106, 1115 n.3 (10th Cir. 2007). Given the roughly five-year
span between the 2010/2011 incident and the 2016 altercation, we cannot say Mr. Levar
and Mr. Donez were similarly situated.
2) 2016 incident
In 2016, Leprino treated Mr. Levar and Mr. Donez the same—it fired both of
them. This undermines Mr. Donez’s pretext argument. See English v. Colorado Dep’t of
Corr., 248 F.3d 1002, 1012 (10th Cir. 2001) (“A plaintiff can not [sic] pick and choose a
person he perceives is a valid comparator who was allegedly treated more favorably, and
completely ignore a significant group of comparators who were treated equally or less
9 Mr. Donez argues he need not share the same supervisor as Mr. Levar where, as here, he “claims to be a victim of a company-wide discriminatory policy.” Aplt. Br. at 26. Though he points to instances where Hispanic and non-Hispanic employees received different discipline for allegedly similar infractions, he does not explain how those employees were similarly situated. Mr. Donez has therefore not provided evidence that Leprino had a company-wide discriminatory policy.
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favorably than he.” (quotations and alterations omitted)). Indeed, out of all the
comparators, Mr. Donez was most similar to Mr. Levar with respect to the 2016
altercation: (1) their misconduct occurred at the exact same time; (2) though Mr. Levar
was more aggressive, both men were involved in the same physical altercation; and
(3) the same decisionmakers disciplined them. Leprino fired both shortly after receiving
confirmation of their participation in the fight. This evidence supports Leprino’s position
that it fired both men for engaging in violent physical conduct, a clear violation of the
company’s Workplace Security Policy.
ii. Mr. Morrison
Mr. Donez also argues he was similarly situated to Mr. Morrison, who engaged in
misconduct in March 2016 and again in April but was not fired. Mr. Donez and Mr.
Morrison were not similarly situated as to the March incident. The question is closer
with respect to the April 2016 incident.
1) March 2016 incident
In March 2016, Jay Marshall, a Leprino employee, told HR personnel “he was
tired of [Mr. Morrison’s] rough-housing, grabbing shoulders, pretend[ing] to choke hold,
playing around. He stated he wanted it to stop. We are here to work and not play
around.” Suppl. App., Vol. II at 218.
Mr. Donez and Mr. Morrison were not similarly situated because their conduct
was not “of comparable seriousness.” PVNF, 487 F.3d at 801. Although both made
physical contact with co-workers, that contact was qualitatively different. Mr.
Morrison’s behavior was accurately characterized as horseplay; indeed, the colleague
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who complained described it as “playing around.” Suppl. App., Vol. II at 218. By
contrast, Mr. Donez pushed a coworker in a physical altercation that led to Mr. Levar’s
arrest and Mr. Donez’s hospitalization.
2) April 2016 incident
In early April 2016, Mr. Morrison was “seen picking up another employee around
the waist,” id. at 221, and “cupping [her] rear end,” App., Vol. I at 105. An employee
who witnessed the incident reported it to HR and later characterized it as “horseplay plus
sexual harassment.” Id. The victim did not complain to HR about the incident. Ms.
Lambert issued Mr. Morrison a “last and final warning,” stating that “any further
performance issues within a 12-month period [] you will be subject to immediate
termination.” App., Vol. II at 538.
Leprino argues that this incident was not sufficiently similar to Mr. Donez’s
physical altercation because:
(1) the victim “did not complain at all,”
(2) the employee who reported the April 16 incident “believed it was horseplay,”
(3) Leprino disciplined Mr. Donez and Mr. Morrison under different policies, and
(4) different decisionmakers disciplined Mr. Donez and Mr. Morrison.
Aplee. Br. at 32-33. These arguments are not persuasive because:
(1) whether the victim complained does not affect the seriousness of the misconduct;
(2) the coworker who reported the incident testified that she believed Mr. Morrison engaged in “horseplay plus sexual harassment,” and not just “horseplay.” App., Vol. I at 105;
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(3) if Mr. Donez and Mr. Morrison were disciplined under different policies, we should still ask whether the employees’ underlying conduct was “of comparable seriousness,” PVNF, 487 F.3d at 801; and
(4) Ms. Lambert and Ms. Soja were involved in disciplining Mr. Morrison and Mr. Donez.
Despite the foregoing, we conclude evidence of the April 2016 incident and
Leprino’s treatment of Mr. Morrison was insufficient to defeat summary judgment.
Leprino’s treatment of Mr. Morrison in April 2016 has limited probative value because it
occurred after Mr. Donez’s termination in February. As we have said, the “relevant
inquiry for determining pretext is whether the employer’s stated reasons were held in
good faith at the time of the discharge, even if they later prove to be untrue.” Simmons v.
Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011) (emphasis added) (quotations
omitted); see also Heno v. Sprint/United Mgmt. Co, 208 F.3d 847, 856 (10th Cir. 2000)
(“Discriminatory incidents which occurred . . . anytime after [the contested action] are
not sufficiently connected to the employment action in question to demonstrate pretext.”
(quotations omitted)). Further, Mr. Morrison and Mr. Donez engaged in different
misconduct,10 and an employer is “allowed to exercise its judgment in determining how
severely it will discipline an employee for different types of conduct.” Kendrick, 220
F.3d at 1233. For these reasons, the Morrison evidence, especially when viewed with the
other evidence in the record, could not lead a reasonable jury to find pretext.
10 In contrast to the April 2016 Morrison incident, the altercation between Mr. Donez and Mr. Levar resulted in a hospitalization and a police investigation.
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iii. Ms. Campos
Mr. Donez contends he was similarly situated to Ms. Campos, an Hispanic woman
fired by Leprino in June 2017 for kicking a co-worker. Mr. Donez suggests her
termination demonstrates that Leprino disciplined Hispanic employees more severely
than non-Hispanic employees who engaged in similar misconduct.
But any similarities between Ms. Campos’s and Mr. Donez’s incidents do not
show that Leprino treated Hispanic employees less favorably than non-Hispanic
employees. Mr. Donez needed to show that Ms. Campos was similarly situated to non-
Hispanic employees who were treated more leniently. See Hardy v. S.F. Phosphates Co.,
185 F.3d 1076, 1082 n.4 (10th Cir. 1999) (suitable comparators cannot be members of
plaintiff’s protected class). He has not done so. And as with Mr. Morrison, because any
alleged discrimination against Ms. Campos occurred after Leprino fired Mr. Donez,
Leprino’s treatment of her is not sufficient to show of pretext. See Heno, 208 F.3d at
856.
b. Other evidence
Mr. Donez’s remaining evidence is also unavailing. He relies on (1) emails from
Ms. Soja to Ms. Lambert discussing the need to obtain the police report before firing Mr.
Donez and (2) procedures Leprino used in conducting its investigation.
i. Ms. Soja’s emails
On February 22, 2016, Ms. Soja emailed Ms. Lambert to ask whether Leprino had
received “the police reports, detective’s statements on his conversation with [Mr. Donez],
etc? We need those ASAP if we have not.” App., Vol. II at 438. A few minutes later,
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Ms. Soja followed up with another email to Ms. Lambert, explaining, “If we don’t get
that detective’s statement on what Nic said to him, we probably can’t term him.” Id. at
437. Before the district court and on appeal, Mr. Donez has argued these emails
demonstrate that Leprino used the police report to “rationalize its predetermined reason to
fire [him]” after “Leprino’s internal investigation did not justify terminating [him].” Dist.
Ct. Doc. 46 at 2.11 The record shows otherwise.
From the beginning of its investigation, Leprino knew Mr. Donez pushed Mr.
Levar. On February 9, Mr. Donez told Detective Vosburg that he pushed Mr. Levar.
The next day, Detective Vosburg relayed this information to Ms. Esterly-Wessbecker.
Thus, as of February 10, Leprino knew Mr. Donez had pushed a co-worker. Ms. Soja’s
emails demonstrate that before firing Mr. Donez, Leprino wanted written confirmation
that Mr. Donez pushed Mr. Levar, a fact it had known since the day after the altercation.
The emails are not “evidence that [Leprino’s] proffered reason for the employment
decision was . . . unworthy of belief.” Kendrick, 220 F.3d at 1230.12
In fact, the way Leprino HR personnel addressed the February incident confirms it
fired Mr. Donez for participating in the altercation, not for an impermissible purpose.
11 We take judicial notice of arguments made in district court documents not included in the record compiled by the parties. See St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). 12 Mr. Donez also argues it took longer to fire him than Mr. Levar because Leprino was fabricating a rationale to do so. This argument lacks merit. On the day of the altercation, Mr. Levar told Ms. Esterly-Wessbecker he punched Mr. Donez, an admission that provided grounds for his immediate termination. By contrast, Leprino waited to fire Mr. Donez until it had written confirmation of his role in the incident.
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Leprino decided to fire Mr. Donez only after it knew that he pushed Mr. Levar. Ms.
Soja’s emails to Ms. Lambert showed diligence in securing written confirmation. See
App., Vol. II at 437 (“If we don’t get that detective’s statement on what [Mr. Donez] said
to him, we probably can’t term him.”).
ii. Leprino’s investigation procedures
Mr. Donez suggests that the way Leprino conducted its investigation, including its
reliance on the police report, is probative of pretext for three reasons. All lack merit.
First, Mr. Donez contends Leprino’s investigation into the altercation was
procedurally irregular, and thus probative of pretext, because Leprino “never” relied on
police reports when investigating other incidents of workplace misconduct. Aplt. Br. at
28.13 We have explained that “disturbing procedural irregularities can satisfy the
requirements of a pretext claim.” Fassbender, 890 F.3d at 889 (quotations omitted).
“But the mere fact that an employer failed to follow its own internal procedures does not
necessarily suggest that the employer was motivated by illegal discriminatory intent or
that the substantive reasons given by the employer for its employment decision were
pretextual.” Id. (quotations and alterations omitted). Thus, when determining whether
procedural irregularities are probative of pretext, we ask “whether the jury could
13 This argument distorts Ms. Esterly-Wessbecker’s deposition testimony. Ms. Esterly-Wessbecker testified that during her time at Leprino, the police had only investigated one other episode of workplace misconduct, and she did not include the police report in the file for that incident. App., Vol. I at 91.
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conclude that the procedural irregularities were somehow related to the decision-maker’s
discriminatory purpose.” Id. Here, the answer is no.
Mr. Donez has provided no evidence that police routinely investigate workplace
misconduct incidents at Leprino. Nor is there evidence that Leprino had any practice or
policy of not relying on police reports when investigating misconduct. But even if
Leprino had such a practice, it was reasonable to rely on the police investigation in this
case because it revealed that Mr. Donez admitted to pushing Mr. Levar, a crucial fact that
Leprino’s own investigation had not uncovered. Leprino’s reliance on the evidence
produced by an independent government entity, while perhaps not a common practice,
was not “disturbing” in the slightest. Id. To hold otherwise would give rise to an
inference of pretext whenever an employer departed from its standard procedures, even
when it did so for legitimate reasons. Thus, even if Leprino’s reliance on the police
report were procedurally irregular, it does not suggest Leprino’s rationale for firing Mr.
Donez is unworthy of belief.
Second, Mr. Donez contends Leprino did not “attempt to interview [him] or
request clarification” after receiving his written statement regarding the incident, which
“was the typical practice when conducting investigations at Leprino.” Aplt. Br. at 29; see
also Dist. Ct. Doc. 102 at 15-16 (“Both the Employee Handbook and ‘Workplace
Security Policy’ also state that in the event of an incident or complaint, Leprino is
supposed to conduct an investigation and interview all witnesses.”). This procedural
departure, he argues, establishes pretext. We disagree.
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For one thing, neither the Employee Handbook nor Workplace Security Policy
mandate that HR personnel conduct interviews when investigating misconduct. The
Employee Handbook says nothing about procedures for misconduct investigations. The
Workplace Security Policy sets forth “guidelines for investigating an incident,” which
include questioning witnesses and the employee accused of violating the policy, but also
notes that “[s]ome situations may not warrant as comprehensive of an approach as
outlined” in the guidelines. App., Vol. I at 35. Because Mr. Donez has not identified a
policy requiring Leprino to interview him, we cannot say that Leprino’s failure to
interview him establishes pretext. See Riggs v. AirTran Airways, Inc., 497 F.3d 1108,
1119 (10th Cir. 2007) (failure to interview plaintiff before terminating her was not a
disturbing procedural irregularity where there was no evidence the employer had a
written policy requiring such an interview).
And even assuming Leprino had such a policy, we are not persuaded that Leprino
departed from it here. Though Leprino may not have formally interviewed Mr. Donez,
HR personnel spoke with him in the aftermath of the incident; solicited a written
statement from him; relied on the FMPD’s report, which incorporated information
obtained through an interview with him; and called Mr. Donez to confirm details of the
police report. Mr. Donez had several opportunities to tell his side of the story and there is
no evidence Leprino was trying to avoid learning his version of events. Thus, any
departure from the company’s interviewing procedures was de minimus, not a disturbing
procedural irregularity, and not indicative of pretext.
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Third, Mr. Donez argues that Leprino’s stated rationale for terminating his
employment is not credible because the police report referred to Mr. Donez as the
“victim,” suggesting he was not a willing participant in the altercation. We addressed
and rejected a similar argument in our discussion of his wrongful termination claim.
Leprino fired Mr. Donez based on the undisputed evidence that he pushed Mr. Levar in a
violent dispute. See App., Vol. III at 620. Thus, Mr. Donez’s exact role in the fight—
willing participant, victim, aggressor—had no bearing on Leprino’s decision to fire him.
Indeed, Ms. Esterly-Wessbecker told Mr. Donez that Leprino would have fired him even
if it knew he had been acting in self-defense. The police report’s reference to Mr. Donez
as “the victim” does not cast doubt on Leprino’s rationale for firing him.
Based on the summary judgment record, we conclude that Mr. Donez has not
established that a reasonable jury could find “both that the reason [for his termination]
was false, and that discrimination was the real reason,” as required to establish pretext.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
III. CONCLUSION
We affirm.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge