Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 15, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
TIFFANY LITZSINGER,
Plaintiff - Appellant,
v. No. 21-1106
ADAMS COUNTY CORONER’S OFFICE,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00989-MEH) _________________________________
Robert M. Liechty, Robert M. Leichty, PC, Denver, Colorado, for Plaintiff-Appellant.
Michael A. Sink, Assistant County Attorney, Adams County Attorney’s Office, Brighton, Colorado (Heidi Miller, County Attorney, and Scott Blaha, Assistant County Attorney, Adams County Attorney’s Office, Brighton, Colorado, on the brief) for Defendant- Appellee. _________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and MATHESON, Circuit Judges. _________________________________
TYMKOVICH, Chief Judge. _________________________________
Tiffany Litzsinger worked for the Adams County Coroner’s Office from
2013 until she was terminated in 2018. During her employment with the Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 2
Coroner’s Office, Litzsinger suffered from anxiety and depression, both of which
worsened in the months leading up to her termination. After an anxiety episode,
Adams County granted Litzsinger temporary leave under the Family and Medical
Leave Act (FMLA). When Litzsinger returned from her FMLA leave, the
Coroner placed Litzsinger on probation for myriad violations of workplace
policies. Shortly after Litzsinger’s probation began, the Coroner terminated
Litzsinger for violating the terms of her probation. Litzsinger sued the Adams
County Coroner’s Office under the FMLA and Americans with Disabilities Act
(ADA), claiming the Coroner terminated her in retaliation for exercising her
rights under both statutes. The district court granted summary judgment for the
Coroner’s Office because Litzsinger failed to demonstrate that the Coroner’s
reason for terminating her was pretextual.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We conclude
that a rational jury could not find that the Coroner’s proffered reason for firing
Litzsinger was pretextual.
I. Background
Because this case arises from an appeal of summary judgment, we present
the following factual background in the light most favorable to Litzsinger as the
non-moving party, unless contradicted by the record. See Smothers v. Solvay
Chemicals, Inc., 740 F.3d 530, 533 (10th Cir. 2014).
Litzsinger served as a medicolegal death investigator for the Adams County
Coroner’s Office from January 2013 until September 2018. During her 2 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 3
employment, Litzsinger’s primary supervisors were Chief Coroner Monica
Broncucia-Jordan (the Coroner) and Chief Deputy Coroner Sherronda Appleberry
(the Chief Deputy Coroner).
A. Mental Health Treatment
Litzsinger began seeing a counselor for anxiety and depression in 2012, the
year before she began working for the Coroner’s Office. During her employment
with the Coroner’s Office, Litzsinger regularly visited the counselor for mental
health assistance. Litzsinger’s supervisors were aware that Litzsinger struggled
with anxiety and asked her on several occasions whether she needed any help.
Litzsinger declined each offer.
In the spring of 2018, the Coroner retained Nicoletti-Flater Associates, a
psychology firm, to provide stress-relief therapy and resiliency training for staff.
Shortly after the Coroner implemented the program, Litzsinger met with Dr.
Dvoskina, one of the retained psychologists, for mental health assistance.
In June 2018, Litzsinger’s primary physician diagnosed her with anxiety
and panic attacks. A physician’s assistant encouraged Litzsinger to take medical
leave, but Litzsinger said she did not want to take leave “for fear of retaliation
because the Coroner’s Office would consider me to be a problem if I took time
off for a mental condition.” App., Vol. II at 142.
The next month, Litzsinger met with Dr. Dvoskina again. During this
meeting, Litzsinger “broke down” and Dr. Dvoskina advised her to take FMLA
3 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 4
leave to treat her stress and anxiety. Id. Litzsinger again refused to take leave
because she feared retaliation from the Coroner.
B. FMLA Leave
Towards the end of July 2018, the Coroner and Chief Deputy Coroner
drafted a written reprimand to give to Litzsinger.1 The draft detailed several
performance issues that had occurred in recent months, including Litzsinger’s
failure to comply with the Coroner’s secondary employment policy, struggles to
stay awake on shift, and problems with completing tasks on time.
On August 3, 2018, Litzsinger had to perform an external exam on a
decomposed body during a night shift. While on duty, Litzsinger called the
Coroner and told her that she could not perform the exam. When the Coroner
asked Litzsinger why she could not do the exam, Litzsinger refused to answer,
saying only that she was “burnt out” and that someone at Nicoletti-Flater was
going to call the Coroner to explain. App., Vol. II at 145.
Following Litzsinger’s refusal to perform the exam, the Coroner told
Litzsinger that they would meet the following week to “discuss this incident,
[your] overall performance, and whether or not [you] can do this job.” Id. The
Coroner decided not to give Litzsinger the written reprimand that had already been
drafted because she believed stricter punishment was warranted.
1 Prior to 2018, the Coroner had formally disciplined Litzsinger on multiple occasions for failing to properly fill out reports, missing deadlines, not completing tasks, and insubordination. 4 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 5
On August 9, 2018, during the week in which the Coroner planned to meet
with Litzsinger to discuss the disciplinary issues, Litzsinger suffered chest pain at
work and was transported to the emergency room via ambulance. The next day,
Litzsinger met with her physician’s assistant, who told Litzsinger that her chest
pain was likely a manifestation of her anxiety and depression. The physician’s
assistant encouraged Litzsinger to take medical leave.
Litzsinger requested leave from August 9 to August 21 to address her
mental health needs. The Coroner told Litzsinger via email that she would need
to utilize FMLA leave because the requested leave time exceeded the standard
sick leave timeframe. The Coroner provided Litzsinger with the necessary FMLA
paperwork. She also told Litzsinger the following:
As previously discussed following the incident on 08/03, I was planning to meet with you on your workweek of 08/08 to discuss your job. However, now that you are on leave, we will have to move this meeting to a later date when you return.
App., Vol. I at 119.
The day after Litzsinger began her FMLA leave, the Coroner emailed Dr.
Shawn Knadler, a clinical associate at Nicoletti-Flater, to explain the
circumstances of Litzsinger’s hospital visit and FMLA leave. The Coroner
informed Dr. Knadler about Litzsinger’s refusal to perform an external exam and
how Litzsinger had told the Coroner that someone from Nicoletti-Flater would
call to explain why Litzsinger could not execute her assigned tasks. The Coroner
also told Dr. Knadler that Litzsinger went to the ER for “chest pain” and that it
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“now appears that she is going on FMLA via that route.” App., Vol. II at 145. In
closing, the Coroner told Dr. Knadler,
I implemented this mental health program through your organization to promote employee resiliency. It is obviously highly suspect that this employee was going to try to abuse this. She may still seek to be seen at your organization during her leave of absence (which I promote). However, it would not surprise me if she still seeks FMLA or an extension of the FMLA approved by her physician. I am requesting that your organization refer any of my employees, that may be seeking psychological FMLA leave, to their own private psychologist. Please let me know your thoughts and if you see a problem with this approach.
Id. In his response to the Coroner, Dr. Knadler acknowledged that Nicoletti-
Flater’s wellness sessions are limited in scope and that requests for FMLA should
be “completed through [employees’] primary therapists.” Id. at 144.
C. Disciplinary Meeting and Probation
Litzsinger returned from FMLA leave on August 21. On August 30, the
Coroner and Chief Deputy Coroner met with Litzsinger to discuss her
performance issues. The conversation covered many of the same topics that were
included in the written reprimand drafted prior to Litzsinger taking leave, such as
6 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 7
Litzsinger’s secondary employment, sleeping during graveyard shifts, 2 and failure
to meet deadlines.
The Coroner was particularly troubled by Litzsinger’s excessive use of the
Internet for personal reasons at work. During a review of Litzsinger’s Internet
history, the Coroner discovered that Litzsinger spent an average of 90 to 120
minutes per shift using the Internet for reasons other than work, such as social
media and online shopping. The Coroner also identified several timesheets where
Litzsinger recorded her time as working on reports, but where Litzsinger’s
Internet history showed that she was instead visiting personal Internet websites.
The Coroner also noted that Litzsinger was chronically behind on her work,
which made the personal Internet use more egregious.
The Coroner ultimately decided to place Litzsinger on probation instead of
terminating her. But the Coroner remarked that she could terminate Litzsinger
for many reasons, including dereliction of duty, fraudulent timesheets, using the
Internet for personal reasons, and consistently being behind on her work.
Litzsinger did not deny that she had committed the alleged violations of
2 Litzsinger told her supervisors during the meeting that she could not work graveyard shifts anymore because her evening medication made her sleepy. The Chief Deputy Coroner said that the proper way to handle the situation would have been for Litzsinger to raise the issue through the appropriate channels and present a doctor’s note rather than sleep on shift. The Chief Deputy Coroner also mentioned that she had asked Litzsinger whether she needed assistance or adjustments in her work due to her mental health and that Litzsinger had always declined any help. Litzsinger said she refused help and accommodations because she thought it would show weakness and possibly lead to disciplinary action. 7 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 8
workplace policies. Instead, she agreed with the Coroner, telling her, “You have
every right to terminate me right now.” Ex. V (audio clip), at 01:31–33 (filed
conventionally).
The terms of Litzsinger’s probation included the following:
Refrain from using the Internet for personal reasons while at work
Complete all work tasks within assigned timeframes
Follow every policy and procedure and ask if any policy or procedure seems unclear
At the end of the disciplinary meeting, the Coroner told Litzsinger that she
would not be given any more chances and that if there were further issues,
Litzsinger would be terminated. Litzsinger acknowledged the terms of her
probation and the consequences of noncompliance. Litzsinger then thanked the
Coroner for being fair and for giving her an opportunity to keep her job in a
probationary status.
D. Termination
In the two weeks after she was put on probation, Litzsinger continued to
use the Internet for personal reasons. The Coroner identified ten websites that
Litzsinger visited while on probation that were unrelated to her work. Litzsinger
admits that she accessed a utility company website for her son on one occasion
and that she showed her co-workers her personal photography website on another
occasion. Litzsinger claims that the other websites in her Internet history were
all for work purposes.
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The Coroner’s Office terminated Litzsinger on September 16, 2018 for
violating the terms of her probation.
E. Procedural History
Litzsinger sued the Coroner’s Office for retaliation in violation of the
FMLA, 29 U.S.C. § 2615(a), and the ADA, 42 U.S.C. § 12112(a). The Coroner’s
Office moved for summary judgment on both claims. The district court granted
summary judgment for the Coroner’s Office, finding that Litzsinger failed to
show that the Coroner’s proffered reasons for termination were pretextual.
II. Analysis
“We review a grant of summary judgment de novo, drawing all reasonable
inferences and resolving all factual disputes in favor of the non-moving party.”
DePaula v. Easter Seals El Mirador, 859 F.3d 957, 968 (10th Cir. 2017) (quoting
Birch v. Polaris Industries, Inc., 812 F.3d 1238, 1251 (10th Cir. 2015)).
We analyze FMLA retaliation and ADA discrimination claims under the
three-step framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Smothers, 740 F.3d at 537–38. First, “the plaintiff must establish a
prima facie case of discrimination or retaliation.” Id. The burden then shifts to
the defendant, who must proffer “a legitimate non-discriminatory reason for the
adverse employment action.” Id. At the third step, the burden shifts back to the
plaintiff to “show there is at least a genuine issue of material fact as to whether
the employer’s proffered legitimate reason is genuine or pretextual.” Id.
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The parties do not dispute that the first two prongs of the McDonnell-
Douglas framework are met. Our analysis thus focuses only on the third prong of
the framework, which is whether a reasonable juror could find that the Coroner’s
proffered reason for terminating Litzsinger was pretextual.
“A plaintiff demonstrates pretext by showing either that a discriminatory
reason more likely motivated the employer or that the employer’s proffered
explanation is unworthy of credence.” Zamora v. Elite Logistics, Inc., 478 F.3d
1160, 1166 (10th Cir. 2007) (citation omitted). Pretext may be established by
revealing “weaknesses, implausibilities, inconsistencies, incoherence, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted non-discriminatory reasons.”
Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1267 (10th Cir. 2007)
(quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
To support an inference of pretext, the plaintiff “must produce evidence
that the employer did more than get it wrong.” Johnson v. Weld Cty., Colo., 594
F.3d 1202, 1211 (10th Cir. 2010). The plaintiff “must come forward with
evidence that the employer didn’t really believe its proffered reasons for action
and thus may have been pursuing a hidden discriminatory agenda.” Id.
We agree with the district court that Litzsinger failed to show a genuine
issue of material fact regarding pretext. Analyzing the evidence in the light most
favorable to Litzsinger, we conclude no reasonable juror could find the Coroner’s
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reason for terminating Litzsinger was pretextual. Other than the temporal
proximity between Litzsinger’s FMLA leave and her termination—which, absent
more, does not establish pretext—Litzsinger presents no circumstantial evidence to
show that the Coroner’s proffered reason for terminating her was false or unworthy
of belief.
The Coroner’s Office says it fired Litzsinger for violating the terms of her
probation by using the Internet for personal reasons. Litzsinger claims this
reason is pretextual and that the Coroner’s Office terminated her because she has
a disability and in retaliation for taking FMLA leave. To support her pretext
argument, Litzsinger presents the following evidence: (1) the Coroner expressed
frustration and skepticism about Litzsinger taking FMLA leave; (2) an employee
normally would not be terminated for personal Internet use at work; and (3) the
Coroner’s reasons for terminating Litzsinger changed over time. 3
We analyze each argument in turn. A. The Coroner’s Statements
Litzsinger first claims that certain statements made by the Coroner
demonstrate the Coroner had a retaliatory motive when she terminated Litzsinger.
3 Litzsinger briefly mentions temporal proximity as evidence of pretext in her reply brief. We agree with the district court that the timing of Litzsinger’s probation and termination is “reasonable evidence of pretext.” App., Vol. II at 219. But our caselaw is clear that the timing of an adverse employment action is insufficient on its own to demonstrate pretext. See Proctor v. United Parcel Serv., 502 F.3d 1200, 1213 (10th Cir. 2007) (“Although we may consider evidence of temporal proximity—typically used to establish a prima facie case— in analyzing pretext, temporal proximity alone is insufficient to raise a genuine issue of material fact concerning pretext.”). 11 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 12
According to Litzsinger, these statements are strong evidence of pretext because
they show that “a discriminatory reason more likely motivated” the termination
decision than the Coroner’s proffered legitimate justification. See Zamora,
478 F.3d at 1166 (citation omitted).
In her email to Nicoletti-Flater Associates, the Coroner explained that she
had planned to meet with Litzsinger on August 9 to discuss Litzsinger’s
performance and her refusal to perform an external exam on a decomposed body.
The Coroner then described how prior to the planned meeting, Litzsinger “began
having ‘chest pain’ and left the office in [an] ambulance” and that it “now
appears that she is going on FMLA via that route.” App., Vol. II at 145. In the
closing paragraph of the email, the Coroner said, “I implemented this mental
health program through your organization to promote employee resiliency. It is
obviously highly suspect that this employee was going to try to abuse this.” Id.
While Litzsinger concedes these statements are not direct evidence of
retaliation, she argues the email shows the Coroner thought Litzsinger was
abusing the FMLA process, faking her disability, and that a “natural human
reaction is to retaliate against the person for such abuse.” Aplt. Br. at 22.
The district court acknowledged that the email shows skepticism but
concluded that it cannot reasonably be read as showing an intention to retaliate.
The court concluded that the email “suggests that the Coroner believed that
Plaintiff chose to use FMLA leave to avoid a discussion with her regarding
employment performance issues.” App., Vol. II at 217.
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We agree with the district court that a reasonable jury could not conclude
that the Coroner’s email casts doubt on the Coroner’s proffered reason for
terminating Litzsinger. The broader context shows that the Coroner was
frustrated with the way that Litzsinger sought FMLA leave, not with the fact that
she used leave. Specifically, the Coroner was concerned that instead of seeking
FMLA leave through her primary psychiatrist, Litzsinger had improperly used
Nicoletti-Flater. 4
The response email from Dr. Knadler reinforces this interpretation. After
discussing a few options for how the Coroner could respond to Litzsinger’s
situation, including disciplinary action, Dr. Knadler told the Coroner,
We will ensure that . . . all of your employees are aware of the objectives and limitations of the wellness sessions. This includes that requests for FMLA would be completed through their primary therapists and that they are encouraged to discuss any concerns/problems they are experiencing directly with their supervisor/management.
Id. at 144. This response addresses the concerns raised by the Coroner—that
Litzsinger’s use of the firm to seek FMLA leave and avoid talking to her
supervisors exceeded the scope of the firm’s purpose, which was to provide
stress-relief services and resiliency training. The full context of the Coroner’s
email and Dr. Knadler’s response therefore demonstrate that the Coroner’s
4 The Coroner was also displeased that Litzsinger had used Nicoletti-Flater to avoid telling the Coroner why she could not perform her assigned external exam on the night of August 3. Litzsinger had told the Coroner that someone from Nicoletti-Flater would call to explain why Litzsinger could not do the exam. 13 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 14
concerns about Litzsinger abusing the process referred to the improper use of
Nicoletti-Flater rather than Litzsinger’s decision to take FMLA leave. Thus, the
email does not show pretext.
Litzsinger also claims the Coroner thought Litzsinger was faking her
disability because she put “chest pain” in quotation marks in her email to Dr.
Knadler. But the record shows that the Coroner understood many of her
employees suffered from mental health problems due to the nature of the work.
That is the precise reason she hired Nicoletti-Flater—to provide resiliency
training for staff. Other evidence in the record shows that the Coroner and Chief
Deputy Coroner knew about Litzsinger’s mental health struggles and asked her on
multiple occasions whether she needed any help or accommodations. 5 Given this
evidence, a reasonable jury could not conclude the Coroner retaliated against
Litzsinger for faking her disability.
Litzsinger analogizes her situation to that of the plaintiff in Fassbender v.
Correct Care Sols., LLC, 890 F.3d 875 (10th Cir. 2018). In Fassbender, we
found evidence of pretext where a prison contractor terminated a pregnant
employee for taking an inmate’s handwritten note home in violation of the
contractor’s fraternization policy. Id. at 881. We concluded a reasonable jury
could find pretext because the employee’s supervisor had made several hostile
5 In her yearly performance appraisal, Litzsinger and her supervisors agreed that one of Litzsinger’s 2018 performance objectives would be to “[m]aintain mental health awareness and seek assistance before impacts to performance arise.” App., Vol. I at 104. 14 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 15
statements about pregnant workers and the employer’s proffered reasons for
termination changed over time.
Litzsinger compares the comments made by the supervisor in Fassbender
to those made by the Coroner to Dr. Knadler. But the Coroner’s comments do not
come close to the level of hostility and discrimination exhibited by the supervisor
in Fassbender. As explained above, the Coroner’s comments reflect frustration
with the way Litzsinger utilized Nicoletti-Flater, not with her disability or the
fact that she took FMLA leave. The Coroner’s email also does not indicate a
desire to terminate or otherwise discipline Litzsinger in retaliation for taking
FMLA leave, which is distinguishable from Fassbender.
In sum, the Coroner’s statements do not show that the Coroner’s Office
“didn’t really believe its proffered reasons for action and thus may have been
pursuing a hidden discriminatory agenda.” See Johnson, 594 F.3d at 1211.
B. Disparate Treatment
Litzsinger next argues that an employee normally would not be terminated
for using the Internet for personal reasons. In her declaration, Litzsinger
explained that it was “common practice for the death investigators to moderately
use the office Internet for personal purposes.” App., Vol. II at 143. Litzsinger’s
claim is supported by the Coroner’s Electronic Media Usage Policy, which
permits “[i]ncidental appropriate personal use of County internet.” App., Vol. I
at 109.
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Evidence of disparate treatment can undercut the credibility of an
employer’s proffered justification for an adverse action. 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).
Litzsinger does not identify any similarly situated employees who were
treated differently than her for their personal Internet use. Instead, she alleges
generally that a “regular employee” would not have been terminated “merely for
going onto the Internet for five minutes.” Aplt. Br. at 15.
While it is likely true that under normal circumstances an employee would
not be fired for intermittent personal use of the Internet, Litzsinger’s
circumstances were not normal. Unlike other employees, Litzsinger was on
probation precisely because she excessively used the Internet for reasons
unrelated to work. So although minor use of the Internet would have “normally
been no issue,” see id. at 28, it was an issue in Litzsinger’s case because it
violated the strict terms of her probation.
The Electronic Media Usage Policy makes it clear that personal use of the
Internet at work is a “privilege” that may be revoked “at the discretion of the
Chief Coroner or management staff.” App., Vol. I at 109. The policy states that
an employee’s personal use of the Internet “must be incidental . . . not violate
Coroner policy, or interfere with an employee’s assigned duties or efficient use of
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time.” Id. It is undisputed that Litzsinger’s Internet use violated these policy
terms and that the Coroner prohibited Litzsinger’s personal Internet use while on
probation. Given this backdrop, the fact that Litzsinger was terminated for using
the Internet while other employees faced no adverse action is unsurprising.
Because Litzsinger failed to provide evidence that she was treated
differently from other similarly situated, nonprotected employees who used the
Internet in violation of the Coroner’s policy, she cannot satisfy her burden of
showing pretext on a theory of disparate treatment.
C. Changing Justifications for Termination
The final argument we address is Litzsinger’s claim that the Coroner’s
reasons for termination have changed throughout this litigation and that such
inconsistences show the Coroner’s proffered reason for termination is pretextual.
Contradictions or inconsistencies in an employer’s proffered reason for
termination can be evidence of pretext. Whittington v. Nordam Group Inc., 429
F.3d 986, 994 (10th Cir. 2005). For instance, a jury can reasonably infer pretext
when an employer provides one explanation for an adverse action but later
affirmatively disclaims or otherwise abandons the rationale. Id. But pretext
cannot be established by “the mere fact that the [employer] has offered different
explanations for its decision.” Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303,
1311 (10th Cir. 2005). Rather, “inconsistency evidence is only helpful to a
plaintiff if ‘the employer has changed its explanation under circumstances that
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suggest dishonesty or bad faith.’” Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 1002 (10th Cir. 2011) (quoting Jaramillo, 427 F.3d at 1310).
During the probation meeting on August 30, the Coroner listed the many
policy violations committed by Litzsinger and told her, “There are a million
reasons to terminate you.” Ex. U (audio clip), at 00:01–07 (filed conventionally).
The Coroner explained that Litzsinger could be fired for, among other things,
“dereliction of duty, fraudulent records, [and] spending extensive worktime doing
email/internet searches.” Id. at 00:09–21. Litzsinger agreed with the Coroner’s
assessment and admitted to her that “you have every right to terminate me right
now.” 6 Ex. V at 01:31–33. Instead of terminating Litzsinger, the Coroner placed
her on probation and made it clear that while on probation, Litzsinger would only
be allowed to use the Internet for work-related reasons.
Less than two weeks after she was placed on probation, several co-workers
reported that Litzsinger had visited personal websites during work hours.
Litzsinger’s supervisors checked her Internet history and confirmed the report.
Litzsinger admits that she briefly visited a utilities website to help her son with a
6 Litzsinger claims this comment lacked sincerity and that she only said it “to be subservient.” App., Vol. II at 143. But Litzsinger does not offer any evidence to contest the validity of any of the grounds supporting termination. Instead, Litzsinger admitted during her deposition that she violated numerous Coroner’s Office policies. The admitted violations include missing deadlines in violation of the case completion policy, App., Vol. I at 45–46, using the Internet for 60-90 minutes per shift for personal reasons in violation of the electronic media usage policy, id. at 47–48, and submitting erroneous timecards in violation of the time records policy, id. at 52–53. 18 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 19
power outage. She also admits that she visited a photography website to show
co-workers photos from her photography business. 7
The Coroner terminated Litzsinger on September 16, 2018. The parties
agree that on that day, the Coroner told Litzsinger that she was being fired for
visiting personal websites at work in violation of her probation. Litzsinger says
the Coroner “gave me no other reason for termination.” App., Vol. II at 143.
Litzsinger concedes that the Coroner has never abandoned personal Internet
use as the reason for termination. Instead, she argues that once litigation
commenced, the Coroner gave additional reasons for termination, which raises
the question of whether the Coroner’s initial proffered reason is legitimate or
pretextual.
Litzsinger first directs us to the deposition testimony of Chief Deputy
Coroner Appleberry. During her deposition, Appleberry said that the Coroner
terminated Litzsinger for violating the terms of her probation. Appleberry then
explained that Litzsinger violated her probation by “using her computer for
personal use,” “not working,” and “retaliating against her coworkers” for
7 While Litzsinger admits she visited these websites during work hours, she says she did not think the visits violated the terms of her probation. But the Coroner made it clear that while on probation, “You will not be on the internet doing anything other than work.” Ex. W (audio clip), at 00:13–16 (filed conventionally). The Coroner also told her, “You will follow every policy and procedure and directive as it is stated to you without inserting your own assumptions or interpretations of it. And if you have questions about what it means, you will ask.” Id. at 00:46–01:04. Given these clear terms, Litzsinger plainly violated her probation by visiting the utilities website and photography website. 19 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 20
reporting her behavior. App., Vol. II at 149. Litzsinger contends that these
additional reasons for termination conflict with what the Coroner told Litzsinger
on the day she was terminated, which is that she was being terminated for her
personal Internet use.
We disagree. The additional justifications are not inconsistent with the
Coroner’s proffered reason for termination—rather, they are part of the same
violation. Litzsinger was “not working” because she was on the Internet for
personal reasons. And Litzsinger retaliated against her co-workers because they
reported her for using the Internet instead of working. The fact that the Coroner
provided additional reasons for termination resulting from the underlying cause
for termination does not show pretext. See Matthews v. Euronet Worldwide, Inc.,
271 F. App’x 770, 774 (10th Cir. 2008) (unpublished) (“[T]here is no support for
a finding of pretext if the employer does not give inconsistent reasons, but
instead merely elaborates on the initial justification for termination.”).
Litzsinger next points us to the Coroner’s Motion for Summary Judgment,
where the Coroner explained that it “had several legitimate non-retaliatory
reasons for the termination,” including Litzsinger “falsifying her timecards,”
being “chronically behind on her work,” “creat[ing] extra work for her
coworkers,” and “caus[ing] delays for funeral homes and the families of the
deceased.” App., Vol. I at 38.
We are not persuaded that these additional reasons show pretext. Reading
the motion as a whole, it is apparent that these reasons were simply bolstering the
20 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 21
Coroner’s claim that Litzsinger’s termination was justified. The motion does not
say that Litzsinger was terminated for the additional reasons, 8 only that Litzsinger
could have been justifiably terminated for any number of reasons. These reasons
provide support for the Coroner’s statement in the August 30 meeting that there
were “a million reasons” to terminate Litzsinger. Ex. U, at 00:01–07. Thus, the
additional reasons are not inconsistent with the Coroner’s reason for termination
and do not show pretext.
Litzsinger analogizes the Coroner’s shifting explanations to those of the
employer in Fassbender. But the employer’s conduct in Fassbender is
distinguishable. Here, the Coroner told Litzsinger that she was being terminated
for her personal use of the Internet while on probation and the Coroner has never
abandoned that initial explanation for termination. The Coroner has always
maintained that it fired Litzsinger for improper use of the Internet. Although the
Coroner offered additional explanations for why probation and termination were
justified, Litzsinger has not shown why these additional reasons undermine the
Coroner’s proffered legitimate reason for termination.
Litzsinger takes issue with the district court’s statement that to demonstrate
pretext, “Plaintiff must show contradictions in Defendant’s legitimate reasons.”
See App., Vol. II at 218. Litzsinger contends “there is no rule that the various
8 In the motion, the Coroner’s Office does not abandon its claim that Litzsinger was fired for violating the terms of her probation. And the only probation violation discussed in the motion is Litzsinger’s personal use of the Internet. Id. at 35, 39. 21 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 22
reasons for termination contradict each other to raise an inference of incredibility.
The differing reasons only need [to] show a lack of credibility.” Aplt. Br. at 25.
Litzsinger is correct that different reasons for termination do not have to be
contradictory to show pretext—they only need to undermine the credibility of the
employer’s proffered reason for termination. But this point of law provides no
help to Litzsinger because she fails to demonstrate how any of the Coroner’s
reasons for termination show a lack of credibility. Providing additional
justifications for termination without abandoning the primary reason for
termination does not, without more, establish pretext. To support an inference of
pretext, the additional justifications must “suggest dishonesty or bad faith.”
Twigg, 659 F.3d at 1002 (citation omitted). While it is true that the Chief Deputy
Coroner noted additional probation violations in her deposition and the motion
for summary judgment included a list of other policy violations that could have
supported termination, the Coroner’s Office never deviated from its initial
justification for terminating Litzsinger—her Internet use. Litzsinger provides no
evidence to show why the additional reasons—which are supported by the
record—demonstrate that Litzsinger’s probation violation is too “weak,
implausible, inconsistent, incoherent, or contradictory” to believe as the
legitimate reason for termination. See Fassbender, 890 F.3d at 890 (quoting
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179 (10th Cir.
2006)).
22 Appellate Case: 21-1106 Document: 010110645319 Date Filed: 02/15/2022 Page: 23
III. Conclusion
We accordingly AFFIRM the district court.