Plump v. Government Employees Insurance Company

CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 16, 2025
Docket24-3091
StatusPublished

This text of Plump v. Government Employees Insurance Company (Plump v. Government Employees Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plump v. Government Employees Insurance Company, (10th Cir. 2025).

Opinion

Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 16, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DION PLUMP,

Plaintiff - Appellant,

v. No. 24-3091

GOVERNMENT EMPLOYEES INSURANCE COMPANY, d/b/a GEICO,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:22-CV-02498-EFM) _________________________________

Grace Bushong and Mallory Shaner (Matthew Cushing, Counsel of Record, and Adam Hunt with them on the briefs), University of Colorado Law School Appellate Advocacy Practicum, Boulder, Colorado, for Plaintiff–Appellant.

Jenna P. Brofsky (Julianne P. Story and Courtney Steelman with her on the brief), Husch Blackwell LLP, Kansas City, Missouri, for Defendant–Appellee. _________________________________

Before HOLMES, Chief Judge, MURPHY, and McHUGH, Circuit Judges. _________________________________

MURPHY, Circuit Judge. _________________________________

I. INTRODUCTION

Dion Plump, a Black male, filed this civil rights suit against his former

employer, Government Employees Insurance Company (“GEICO”). In relevant part, Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 2

Plump alleged GEICO (1) retaliated against him in violation of the (a) Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(2) 1 and (b) Americans with

Disabilities Act (“ADA”), as amended by, the ADA Amendments Act of 2008

(“ADAAA”), Pub. L. No. 110–325, 122 Stat. 3553 (codified at 42 U.S.C.

§ 12203(a)) 2; and (2) discriminated against him based on his race in violation of

(a) 42 U.S.C. § 1981 and (b) Title VII of the Civil Rights Act of 1964, 42 U.S.C

§§ 2000e to 2000e-17. 3 Employing the burden-shifting framework set out by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 4 the

1 See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006) (distinguishing between FMLA entitlement/interference claims, which arise under § 2615(a)(1), and retaliation/discrimination claims, which arise under § 2615(a)(2)). 2 For an explanation of changes to the ADA made by the ADAAA, see Adair v. City of Muskogee, 823 F.3d 1297, 1304-06 (10th Cir. 2016). The ADAAA is the “governing version of the ADA.” Id. at 1304. Thus, this court refers to Plump’s disability-related retaliation claim as an ADAAA claim. See Dewitt v. S.W. Bell Tel. Co., 845 F.3d 1299, 1303 n.1 (10th Cir. 2017). 3 The availability of a Title VII remedy does not foreclose relief under § 1981. Meade v. Merchs. Fast Motorline, Inc., 820 F.2d 1124, 1125-27 (10th Cir. 1987) (per curiam) (“[A] plaintiff may properly pursue his cause of action under § 1981 for private employment discrimination despite the applicability of Title VII to the same conduct.”); see also Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 858-59 (10th Cir. 2000) (holding that Meade is reinforced by the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072 (codified at 42 U.S.C. § 1981a)). 4 McDonnell Douglas’s burden-shifting framework has three steps.

First, the plaintiff must establish a prima facie case of discrimination or retaliation. Second, the employer must proffer a legitimate, nondiscriminatory reason for the adverse employment action. And third, the plaintiff must show there is at least a genuine issue of material fact as 2 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 3

district court granted summary judgment in favor of GEICO. It concluded Plump’s

Title VII and § 1981 claims failed because Plump did not identify sufficient evidence

to support a prima facie case of race discrimination. It concluded Plump’s FMLA and

ADAAA retaliation claims failed because Plump did not adduce sufficient evidence

to allow a reasonable juror to find that GEICO’s stated nondiscriminatory reason for

the termination was pretextual.

Plump appeals, asserting the district court erred in granting summary judgment

in GEICO’s favor. This court agrees the district court erred in concluding Plump did

not establish a prima facie case of race discrimination. In particular, the district court

erred in concluding the fact Plump’s insurance-sales position remained open after his

discharge did not create an inference of discrimination. See Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000); Perry v. Woodward,

199 F.3d 1126, 1135, 1140 (10th Cir. 1999). This error is harmless, however, because

(1) the district court’s ruling that there was insufficient evidence of pretext to support

Plump’s FMLA and ADAAA retaliation claims applies equally, under the

circumstances here, to his Title VII and § 1981 discrimination claims 5 and (2) the

to whether the employer’s proffered legitimate reason is genuine or pretextual.

Jenny v. L3Harris Techs., Inc., 144 F.4th 1194, 1198 (10th Cir. 2025) (quotations and internal citations omitted). 5 Plump recognizes as much in his opening brief on appeal, stating as follows:

[T]he district court granted summary judgment on [Plump’s] race discrimination claims at the prima facie stage . . . and[,] therefore[,] did 3 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 4

district court correctly ruled that Plump failed to create a genuine issue of fact as to

pretext. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088

(10th Cir. 2006) (holding this court has discretion to “affirm [the district court’s

judgment] on any ground adequately supported by the record”). Thus, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s order

granting summary judgment to GEICO.

II. BACKGROUND

A. Factual Background 6

On June 8, 2020, GEICO hired Plump to work as a sales representative in

Lenexa, Kansas. GEICO’s sales representatives sell insurance by telephone to

customers across the United States. Accordingly, they are required to obtain and

maintain licenses issued by various states’ insurance departments. During the

relevant period, sales representatives received 9.98% of their calls from New York,

not reach [Plump’s] pretext arguments. . . .

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Related

McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Heno v. Sprint/United Management Co.
208 F.3d 847 (Tenth Circuit, 2000)
Kendrick v. Penske Transportation Services, Inc.
220 F.3d 1220 (Tenth Circuit, 2000)
Wells v. Colorado Department of Transportation
325 F.3d 1205 (Tenth Circuit, 2003)
Plotke v. White
405 F.3d 1092 (Tenth Circuit, 2005)
Jaramillo v. Colorado Judicial Department
427 F.3d 1303 (Tenth Circuit, 2005)
Champagne Metals v. Ken-Mac Metals, Inc.
458 F.3d 1073 (Tenth Circuit, 2006)
Metzler v. Federal Home Loan Bank
464 F.3d 1164 (Tenth Circuit, 2006)
Swackhammer v. Sprint/United Management Co.
493 F.3d 1160 (Tenth Circuit, 2007)
Richison v. Ernest Group, Inc.
634 F.3d 1123 (Tenth Circuit, 2011)
Patricia J. Kenworthy v. Conoco, Inc.
979 F.2d 1462 (Tenth Circuit, 1992)
Perry v. Woodward
199 F.3d 1126 (Tenth Circuit, 1999)
Smothers v. Solvay Chemicals, Inc.
740 F.3d 530 (Tenth Circuit, 2014)
Wright v. Experian Information Solutions, Inc.
805 F.3d 1232 (Tenth Circuit, 2015)
Adair v. City of Muskogee
823 F.3d 1297 (Tenth Circuit, 2016)

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