Plump v. Government Employees Insurance Company
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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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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. . . . [T]he district court did reach his pretext arguments as to his retaliation claims, holding that [Plump] failed to present sufficient evidence from which a juror could find GEICO’s stated reason for firing him was pretext. Because the same evidence and arguments apply to the pretext analysis for both claims . . . , [Plump] will address together all of the evidence he introduced demonstrating that GEICO’s stated reason for firing him was pretext.
Appellant’s Opening Br. at 36 n.13 (italics and internal citation omitted). 6 As did the district court, this court draws the general background facts from the parties’ factual stipulations, which are set out in the pretrial order. Any additional alleged legitimate issues of material fact are discussed below in resolving Plump’s appellate contentions.
4 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 5
making it the second most frequent state from which customers call for GEICO
insurance. For that reason, GEICO expected its sales representatives to obtain and
maintain a New York license. Indeed, GEICO told Plump that having a New York
insurance license was important to his role as a sales representative.
Three days after GEICO hired Plump, he applied for a New York insurance
license. On February 5, 2021, the New York Department of Financial Services
(“NYDFS”) sent Plump a letter indicating it received his application, but discovered
he failed to report he was involved in a “fine, denial, refusal, suspension, or
revocation” of his North Dakota license. NYDFS requested that Plump submit
specific information and documentation regarding that issue within fifteen days.
Plump stipulated that he did not respond to this letter. On July 21, 2021, NYDFS sent
Plump a follow-up letter stating it had not received a response and indicating his
application would be denied unless it received the requested information by
August 6, 2021. Plump stipulated that he did not respond to this letter. On August 9,
2021, NYDFS sent Plump a letter stating his application was denied because he
demonstrated untrustworthiness within the meaning and intent of New York
insurance law. The letter informed Plump he had until August 24, 2021, to appeal the
decision by requesting a hearing. Plump never attempted to appeal the application
denial. After the appeal timeframe passed, Plump was prohibited from reapplying for
a New York license until August 9, 2022.
NYDFS sent GEICO’s Dallas Licensing Team a copy of the denial letter, but
the Dallas Licensing Team failed to upload it to Plump’s file. This error, among
5 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 6
others, resulted in GEICO firing the Dallas Licensing Supervisor and creating a new
Kansas City Licensing Team to resolve local deficiencies and outstanding
applications. Plump never informed the Kansas City Licensing Team that New York
rejected his application. On October 27, 2021, the Kansas City licensing team
discovered NYDFS rejected Plump’s application. When GEICO contacted NYDFS to
seek an extension, NYDFS told GEICO the appeal timeframe had passed. On
November 3, 2021, GEICO management met with Plump to tell him that, without a
New York license, he could not remain in his sales position. Management indicated it
would explore the possibility of transferring Plump to a role in the Service
Department.
On November 17, 2021, Plump’s direct supervisor, Allison Selg, responded to
a request by GEICO management for a report regarding Plump’s performance and
attendance. The report revealed Plump generally averaged a “good” score on his
overall performance ratings. That same day, GEICO conducted an audit of the Sales
Department’s calls. The audit revealed Plump’s call transfer percentage was high, his
quote to call (“QTC”) percentage was low, 7 he was the only representative with
licensing problems, and he was denied his New York license. Plump was interviewed
for the Service Department position on December 1, 2021. Shortly after, GEICO
informed Plump he did not get the service job. On December 7, 2021, Selg’s
7 The record indicates “quote to call is the number of or the percentage of quotes that an associate generates in relation to the number of calls they receive[.]” R. at 169.
6 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 7
supervisor, Meghan Beaver, met Assistant Vice-President Lee Foskey to discuss
Plump’s performance. The meeting revealed Plump’s high transfer rate was mostly
due to call avoidance and licensing issues. That is, fifty percent of Plump’s transfers
were due to his licensing issues and twenty percent were due to call avoidance. After
the meeting, Beaver was instructed to investigate Plump’s call avoidance and proceed
with the intention to terminate him on that basis or for the licensing issue.
On December 10, 2021, Plump emailed the GEICO Human Resources
Department, raising concerns about the handling of his New York license, his
interview with the Service Department, and his working relationship with Selg. Later
that day, Human Resources met with Plump to discuss his concerns. During this
meeting, Plump did not raise any concerns about race discrimination. On
December 15, 2021, Plump contacted Human Resources to ask about FMLA leave.
Human Resources sent Plump the required paperwork and explained the process for
reporting a leave claim. Plump was told it was his responsibility to maintain and
return the required leave documentation. The next day, Plump messaged Selg and
informed her that he was going to check into a hospital, would be out sick, and was
in the process of filing for FMLA leave. Plump never checked into the hospital on
that date and did not report to work for the following forty-two days.
On January 7, 2022, GEICO Leave Specialist Megen Snyder emailed Plump to
inform him he was eligible for FMLA leave; she asked him to return all required
paperwork by January 22, 2022. Based on Plump’s paperwork, Snyder informed him
GEICO approved him for FMLA leave. On January 21, 2022, GEICO retroactively
7 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 8
approved Plump for FMLA intermittent leave from December 17, 2021, to September
21, 2022. Plump’s approved FMLA leave was limited to one-day episodes up to two
times a month, with two doctor appointments a year.
By December 22, 2021, GEICO concluded its investigation into Plump’s
Human Resources complaint. The investigation included witness interviews with
various members of GEICO’s licensing and supervision teams and several of Plump’s
peers. GEICO concluded Plump was held to the same standard as all Sales
Representatives. Due to holidays, Plump’s absence from work, and Plump
rescheduling meetings, Human Resources was unable to meet with him to discuss the
results of the investigation until February 2, 2022. That same day, Beaver reminded
Plump his management team would be reviewing his employment due to the rejection
of his New York insurance license and invited him to submit a written statement
containing any information he wanted them to consider. Plump submitted a written
statement later that day.
On February 3, 2022, Beaver emailed human resources requesting approval to
terminate Plump because he failed to obtain his New York license, failed to inform
his supervisor that New York rejected his license, and failed to appeal the New York
licensing decision within a timely manner. The next day, Plump told Selg he was
“getting checked back into the hospital.” He did not check into a hospital on that date
or any other date. On February 8, 2022, Human Resources sent Beaver a
memorandum which, pending approval from Foskey, would terminate Plump’s
employment. Beaver attempted to call Plump the next day, but Plump did not answer
8 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 9
his phone. Instead, Plump instructed his emergency contact to tell Beaver he was
unavailable because he was in the hospital for an extended period. Again, Plump
never checked into a hospital. Unable to reach Plump on February 9, 2022, GEICO
sent him a letter the following day informing him his employment was terminated.
B. Procedural Background
1. Discrimination Claims 8
GEICO moved for summary judgment on Plump’s discrimination claims.
GEICO argued, inter alia, Plump could not establish a prima facie case under
McDonnell Douglas’s burden-shifting framework. According to GEICO, Plump
failed to come forward with sufficient evidence to create a fact question as to
Plump’s prima facie case because (1) his lack of a New York license rendered him
unqualified for the sales position and (2) the absence of evidence of race-based
comments or differently-treated comparators meant the circumstances surrounding
Plump’s termination did not give rise to an inference of discrimination. Alternatively,
GEICO contended it stated a legitimate nondiscriminatory reason for Plump’s
termination—his failure to obtain a New York license—and Plump failed to come
forward with sufficient evidence of pretext to create a genuine issue of material fact.
Plump opposed GEICO’s request for summary judgment on his discrimination
claims. As to the question whether he made out a prima facie case, Plump asserted he
8 The same legal framework applies to Plump’s Title VII and § 1981 discrimination claims. Payan v. United Parcel Serv., 905 F.3d 1162, 1168 (10th Cir. 2018).
9 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 10
carried his burden under this court’s decision in Kendrick, 220 F.3d at 1229. Plump
noted that, pursuant to Kendrick, he could make out a prima facie case by showing:
“(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his
qualifications, he was discharged; and (4) the job was not eliminated after his
discharge.” See id. In that regard, Plump noted it was undisputed he is a member of a
protected class—“Black/African American”—and was discharged from employment
with GEICO. Furthermore, he argued he was prima facie qualified for the sales job
under the non-onerous test set out in Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471
(10th Cir. 1992). Finally, Plump asserted the fact the sales position was not
eliminated after his termination created the necessary inference of discrimination,
Kendrick, 220 F.3d at 1227. As to pretext, Plump asserted, as set out more fully
below in discussing the procedural history of his retaliation claims, see infra Section
II.B.2., that he submitted sufficient evidence for a jury to rule in his favor.
The district court granted summary judgment to GEICO on Plump’s Title VII
and § 1981 claims on the basis Plump failed to establish a prima facie case of
discrimination. As relevant for the purposes of this appeal, the district court ruled
Plump failed to show the timing and sequence of his termination gave rise to an
inference of race discrimination. 9 See Plotke v. White, 405 F.3d 1092, 1101 (10th Cir.
9 Employing the very type of non-onerous test advocated by Plump, the district court concluded Plump established a prima facie case he was qualified for the sales position. In so ruling, the district court relied on Plump’s own testimony he was performing satisfactorily in the position, together with Plump’s adequate performance appraisal ratings. Furthermore, focusing on what it concluded a jury could find were the objective qualifications necessary to perform the sales job rather 10 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 11
2005) (setting out a nonexclusive list of circumstances that can create an inference of
“discriminatory motive”). To begin, the district court concluded any failures on the
part of the Dallas Licensing Team associated with Plump’s inability to obtain a New
York license were not unique to Plump or indicative of discrimination. Those failures
impacted a broad swath of Kansas employees. GEICO dealt with the problem by
terminating the Dallas Licensing Team and creating a new licensing team in Kansas
City. Furthermore, the district court could perceive no hint of discrimination in
GEICO’s decision to consider discipline during the period in which Plump stopped
attending work. The district court noted that during the lengthy period of non-
attendance, Plump had not received approval to take anything other than intermittent
time off from work, did not tell his supervisors he was approved for leave, and did
not tell his supervisors when he would return. Additionally, the district court noted
the record was devoid of evidence of any type of racially negative comments during
the entirety of Plump’s employment by GEICO. And, finally, the district court
determined there was no record evidence indicating the failed process of trying to
transfer Plump to the service department was in any way inconsistent with past
GEICO practice.
than all the objective criteria adopted by GEICO, see generally EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000), the district court concluded Plump “presented evidence demonstrating that he had enough insurance licenses to satisfactorily service clients—albeit not New York clients—for the 20 months that he worked at GEICO.” R. at 484. This, according to the district court, meant Plump “presented enough evidence to meet the low threshold for establishing the second element of his prima facie case.” Id.
11 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 12
Notably, at no point in its order did the district court discuss whether, pursuant
to Kendrick, Plump’s discharge while his sales position remained open supplied the
necessary prima-facie-stage inference of discrimination. Because it ruled Plump lost
at McDonnell Douglas’s prima-facie stage, the district court did not, in relation to
Plump’s discrimination claims, rule on whether Plump presented sufficient evidence
from which a jury could find that GEICO’s stated reason for terminating Plump—
lack of a New York license—was pretextual.
2. Retaliation Claims 10
In moving for summary judgment on Plump’s retaliation claims, GEICO first
asserted Plump failed to make a prima facie case of retaliation. As relevant here,
10 The same general legal framework applies to Plump’s FMLA and ADAAA retaliation claims. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). That is, both employ the burden-shifting test set out in McDonnell Douglas. See supra n.4. At the prima facie stage, both require (1) protected activity, (2) a materially adverse employment action, and (3) a causal connection between the protected activity and adverse employment action. Foster v. Mountain Coal Co., 830 F.3d 1178, 1186-87 (10th Cir. 2016) (ADAAA retaliation); Metzler, 464 F.3d at 1171 & n.2 (FMLA retaliation).
In Muldrow v. City of St. Louis, the Supreme Court clarified that Title VII discrimination claimants need not, at the prima face stage, establish the existence of a materially adverse employment action. See 601 U.S. 346, 354-56 (2024). Instead, it is enough for the claimant to “show some harm respecting an identifiable term or condition of employment.” Id. This court assumes without deciding that the standards set forth in Foster and Metzler remain valid in assessing ADAAA and FMLA retaliation claims, respectively, for three reasons. First, neither party raised any arguments on this issue. Second, GEICO does not dispute that termination of employment is a materially adverse action for purposes of a retaliation claim. See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1216 (10th Cir. 2003). Applying the Muldrow standard, therefore, would not alter the analysis. Third, this court has held 12 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 13
GEICO asserted Plump did not produce sufficient evidence of a causal connection
between any activity protected by the ADAAA or FMLA and his termination. GEICO
further asserted it terminated Plump because he failed to obtain a New York license
and Plump failed to come forward with sufficient evidence of pretext for a jury to
rule in his favor.
Plump asserted the close temporal proximity between his protected activity—
his request for FMLA medical leave as an accommodation—and his termination,
standing alone, met his prima facie burden of demonstrating a causal connection. As
to pretext, Plump contended a jury could rule in his favor based on evidence of
shifting rationales for his termination, irregularities in his attempt to transfer to a
service position, GEICO’s inadequate investigation of his complaints to Human
Resources, and the close temporal connection between his termination and his
protected activities.
The district court ruled that Plump’s evidence of a close temporal proximity
between his request for FMLA medical leave and his termination was sufficient to
establish a prima facie case of retaliation. 11 Nevertheless, the district court ruled
Muldrow did not alter the standard for reviewing Title VII retaliation claims. See Culp v. Remington of Montrose Golf Club, LLC, 133 F.4th 968, 977 (10th Cir. 2025). 11 The district court noted an important limitation to its causal-connection ruling. Although Plump’s request for leave counted as protected activity, the district court refused to consider Plump’s absences from work as protected activity because those absences were inconsistent with the leave requested and approved. See R. at 488-89 (“GEICO approved Plump for intermittent leave, which included two, one-day episodes per month. Yet, Plump did not report to work for 42 consecutive days between December 2021 and January 2022. Then, he missed more work in late 13 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 14
Plump failed to create a material issue of fact as to pretext. The district court first
concluded the evidence established GEICO was considering terminating Plump’s
employment before Plump ever inquired about leave. Next, the district court rejected
Plump’s assertion his “strong” employment history demonstrated pretext. The district
court noted Plump’s performance appraisal ratings were “‘good’ at best.” And, in any
event, the district court recognized this court’s precedents do not support an inference
of pretext in such circumstances. R. at 491; cf. DeWitt v. Sw. Bell Tel. Co., 845 F.3d
1299, 1307 (10th Cir. 2017) (“Evidence that the employer should not have made the
termination 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.”). For the same reasons, the district court placed no stock in
Plump’s reliance on his failure to obtain the service position. Finally, the district
court rejected Plump’s reliance on an allegedly unfair investigation of his complaints
to Human Resources. Plump’s complaints to Human Resources did not implicate
medical leave. Furthermore, the district court concluded “refusing to retain an
employee just because he has explained why he fails to meet certain criteria is not
evidence of discrimination or retaliation.” R. at 492.
January and early February for—as he falsely told his supervisors—checking into a hospital. Because Plump abused his leave usage, it cannot be considered as a protected activity. Thus, the Court will only evaluate whether Plump’s leave request was causally connected to his termination.” (emphasis omitted)).
14 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 15
III. DISCUSSION
A. Standard of Review
This court “review[s] a district court’s grant of summary judgment de novo,
using the same standard applied by the district court pursuant to Fed. R. Civ.
P. 56(a).” Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of the Okla. Bd. of
Regents, 125 F.4th 1321, 1333 (10th Cir. 2025) (quotation omitted). Summary
judgment is appropriate if “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). “A fact is
material if, under the governing law, it could influence the outcome of the lawsuit.
A dispute over a material fact is genuine if a rational jury could find in favor of the
nonmovant on the evidence presented.” Rio Grande Found. v. Oliver, 154 F.4th
1213, 1220 (10th Cir. 2025) (quotations and internal citation omitted). In applying
this standard, this court views “the evidence and the reasonable inferences to be
drawn from the evidence in the light most favorable to” Plump, “the nonmoving
party.” Est. of Taylor v. Salt Lake City, 16 F.4th 744, 756 (10th Cir. 2021) (quotation
omitted). 12
12 In his opening brief, Plump contends the district court failed to view the facts in the light most favorable to him. Appellant’s Opening Br. at 22-23, 36-41. For the most part, Plump complains the district court disregarded evidence relating to the validity and applicability of GEICO’s “alleged” requirement that he obtain and keep a New York license. Id. As set out more fully below, however, infra Section III.B.2., Plump’s factual stipulations render his appellate challenge to the validity and veracity of GEICO’s New York licensure requirement illegitimate and/or immaterial. And, in any event, this court’s review of a district court’s grant of summary judgment is de novo. “Because this court can and will apply the correct standard on appeal, there is 15 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 16
B. Discussion
1. Prima Facie Case of Discrimination
Plump argues the district court erred in concluding he did not make out a
prima facie case of race discrimination. In so arguing, he asserts this court’s decision
in Kendrick, 220 F.3d at 1229, provides that the termination of a qualified employee
belonging to a protected class raises an inference of discrimination if the employee’s
position remains open. In response, GEICO asserts Kendrick is inapplicable because
it is a failure-to-hire case, not a termination case. Furthermore, GEICO argues Plotke,
405 F.3d at 1100, renders the status of Plump’s former position irrelevant. Plump
has, by far, the best of this argument. In contrast to GEICO’s claims, Kendrick is a
case involving a discriminatory discharge and the rule of law set out therein is
directly applicable to the facts of this case. Plotke is not to the contrary.
This court’s decisions in Kendrick, 220 F.3d at 1229, and Perry, 199 F.3d at
1135, definitively hold that a plaintiff in a Title VII or § 1981 suit alleging
discriminatory discharge can make out a prima facie case by showing “(1) he belongs
to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he
was discharged; and (4) the job was not eliminated after his discharge.” Kendrick,
220 F.3d at 1229 (citing Perry, 199 F.3d at 1138). Kendrick noted this iteration of the
prima facie case arose directly from the Supreme Court’s failure-to-hire decision in
no need to remand the matter to the district court for further proceedings.” Wright v. Portercare Adventist Health Sys., 52 F.4th 1243, 1254 n.16 (10th Cir. 2022).
16 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 17
McDonnell Douglas. Id. at 1226 (quoting McDonnell Douglas, 411 U.S. at 802).
Kendrick further recognized that Supreme Court precedent indicates satisfaction of
this test by a plaintiff alleging discrimination who demonstrates:
his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.
Id. at 1227 (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44
(1977)); see also id. at 1229 (discussing Perry’s further amplification of these same
rationales). Finally, Kendrick noted “[t]his circuit’s earliest discriminatory discharge
cases all adopted the four-part prima facie test as articulated in McDonnell Douglas.
That is, the fourth prong only required the plaintiff to show that his or her job was
not eliminated after the discharge.” Id. at 1227; see also id. at 1229 (quoting
Crawford v. Ne. Okla. State Univ., 713 F.2d 586, 588 (10th Cir. 1983), for the
following proposition: “There is no reason to apply a stricter version of the fourth
part of the McDonnell Douglas test in a suit alleging a discriminatory discharge
rather than a discriminatory failure to hire or promote.” (alteration omitted)).
Thus, (1) GEICO is incorrect in arguing the rule set out in Kendrick only
applies in the failure-to-hire context; and (2) Plump is correct in arguing that,
pursuant to Kendrick, an inference of discrimination arose from the fact his position
remained open following his termination. Indeed, this court recently rejected, as
inconsistent with binding Tenth Circuit precedent, a district court ruling about the
17 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 18
parameters of the prima facie case that relied on arguments nearly identical to those
raised by GEICO in this appeal. Walkingstick Dixon, 125 F.4th at 1331 (reviewing
the magistrate judge’s ruling, which concluded a female Native American who was
qualified for the position failed to establish a prima facie case of discrimination,
despite demonstrating the job remained open after her termination); id. at 1333
(explaining the magistrate judge adhered to this ruling on reconsideration); id.
at 1334-35 (summarizing, inter alia, the decisions in Kendrick and Perry, recognizing
there are multiple ways to “establish an inference of discrimination for a prima facie
case,” and holding as follows: “In sum, a plaintiff alleging wrongful termination may
raise an inference of unlawful discrimination by showing that (1) she is a member of
a protected class, (2) she was qualified for her job, (3) she was fired, and (4) the job
was not eliminated.”).
GEICO is simply wrong in arguing Plotke is to the contrary. GEICO relies on
the following passage from Plotke in arguing in favor of the irrelevance of the
continued existence of a job from which a qualified employee is terminated:
“[W]here an employer contends the actual reason for termination in a discriminatory
firing case is not elimination of the employee’s position but, rather, unsatisfactory
conduct, the status of the employee’s former position after his or her termination is
irrelevant.” 405 F.3d at 1100. At first blush, and bereft of context, this sentence
certainly seems to support GEICO’s preferred rule. When viewed in context,
however, it becomes clear Plotke was simply carrying on this court’s tradition of
treating McDonnell Douglas’s prima-facie-case requirement as an entirely flexible
18 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 19
standard. Id. at 1099 (“The Supreme Court recognized in McDonnell Douglas that the
articulation of a plaintiff’s prima facie case may well vary, depending on the context
of the claim and the nature of the adverse employment action alleged.”); see also id.
(collecting cases for proposition McDonnell Douglas’s prima facie case is flexible,
rather than “rigid, mechanized or ritualistic” (quotation omitted)). In that vein, Plotke
recognized as follows: “While we have held that one way a plaintiff may establish a
prima facie case is to include evidence that her job was not eliminated after her
discharge, we have also noted that the elimination of the position does not necessarily
eviscerate a plaintiff’s claim that her discharge was motivated by discrimination.” Id.
at 1100 (quotation, emphasis, and alterations omitted). This led Plotke to its ultimate
holding: “contrary to the district court’s implicit holding that the elimination of
Dr. Plotke’s position was per se fatal to her case, the fourth element of a prima facie
case is a flexible one that can be satisfied differently in varying scenarios.” Id.
(italics omitted). Against this backdrop, it becomes clear the passage cited by GEICO
does not support its proposed rule. Given Plotke’s emphasis on the flexible nature of
the prima facie case, and its refusal to apply it rigidly to “eviscerate a plaintiff’s
claim” when the job from which she was terminated is eliminated, Plotke cannot be
read to support an equally rigid rule that views as irrelevant the fact a position
remains open upon the termination of a qualified member of a protected class.
19 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 20
For those reasons set out above, the district court erred in concluding Plump
failed to make out a prima facie case of race discrimination. 13
2. Pretext
Plump argues that the district court erred in concluding he did not produce
sufficient evidence of pretext to send the issue to the jury. 14 Plump can show pretext
by, inter alia, demonstrating GEICO’s proffered reason for the discharge “is factually
false.” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017)
(quotation omitted). “This is often accomplished by revealing weaknesses,
implausibilities, inconsistencies, incoherences, or contradictions in the employer’s
proffered reason, such that a reasonable fact finder could deem the employer’s reason
13 This court’s conclusion, infra Section III.B.2., that all of Plump’s claims fail at McDonnell Douglas’s pretext stage allows us to avoid resolving a difficult question. GEICO urges this court to affirm, on an alternate ground, the district court’s ruling Plump failed to make out a prima-facie case of racial discrimination. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (holding this court “may affirm on any basis supported by the record”). Based on the pretrial order’s factual stipulations, GEICO asserts the record conclusively establishes Plump was not qualified for the sales position. That is, GEICO asserts the district court erred in concluding Plump satisfied the second aspect of Kendrick’s prima facie case. We decline to resolve this case on the alternate basis identified by GEICO. Our conclusion below that Plump failed to create a material issue of fact as to pretext is enough to fully resolve this case. 14 Plump did not contest in the district court, and does not contest on appeal, that GEICO stated, at McDonnell Douglas’s second stage, a legitimate, non- discriminatory reason for Plump’s termination—i.e., Plump’s failure to obtain a New York license. Regardless, there is no doubt GEICO met its “exceedingly light” burden of stating a reason for the termination that is “legitimate and non- discriminatory on [its] face.” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (quotation omitted).
20 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 21
unworthy of credence.” Id. (quotation omitted). “Evidence of pretext may . . . take a
variety of . . . forms. A plaintiff may not be forced to pursue any particular means of
demonstrating that a defendant’s stated reasons are pretextual.” Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th Cir. 2007). Nevertheless, in
considering Plump’s evidence of pretext, this court “may not second guess” GEICO’s
“business judgment.” DePaula, 859 F.3d at 970 (quotation omitted). “Evidence that
the employer should not have made the termination 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. at 970-71 (quotation
omitted). “In determining whether the proffered reason for a decision was
pretextual,” this court “examine[s] the facts as they appear to the person making the
decision, and do[es] not look to the plaintiff’s subjective evaluation of the situation.”
Id. at 971 (emphasis and quotations omitted). “Instead of asking whether the
employer’s reasons were wise, fair or correct, the relevant inquiry is whether the
employer honestly believed those reasons and acted in good faith upon those beliefs.”
Id. (quotations omitted).
Plump argues that a reasonable jury could find pretext from the following:
(1) GEICO’s “purporting to require a New York license,” Appellant’s Opening Br.
at 44; (2) GEICO’s “shifting rationales for termination,” id. at 47; (3) GEICO’s
“unfair and inadequate investigation,” id. at 48; and (4) “temporal proximity between
[] Plump’s FMLA leave and his termination,” id. at 51. For those reasons set out
below, this court concludes no reasonable jury could conclude that GEICO did not
21 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 22
honestly believe Plump’s failure to obtain a New York license made him unsuitable
for the sales position.
Plump asserts his evidence is sufficient for a jury to conclude GEICO’s
requirement of a New York license was not a bona fide job requirement but, instead,
a requirement created to justify his termination. In support of this assertion, Plump
identifies two strands of evidence. First, he points to evidence indicating the
requirement of a New York license was not previously mentioned to him. Second, he
argues a jury could conclude GEICO was to blame, either in whole or in part, for his
New York licensing failure because of the failures of the Dallas Licensing Team. 15
15 To be clear, Plump does not argue GEICO’s own fault in his failure to obtain a New York license is some kind of independent evidence of pretext apart from the question of the bona fide nature of the New York licensing requirement. The problems with the Dallas Licensing Team were systemic; there is no evidence in the record indicating the Dallas Licensing Team’s failures were directed at depriving Plump of a necessary job qualification. Nor does Plump argue GEICO was under some kind of obligation, based on the Dallas Licensing Team’s failures, to maintain his employment until he could obtain a New York license and, critically, GEICO’s failure to do so would allow a jury to infer a pretextual motivation from Plump’s termination. Such an argument would be entirely inconsistent with this court’s precedents. See DeWitt, 845 F.3d at 1307 (“Evidence that the employer should not have made the termination 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.”).
Furthermore, the licensing department’s role assisting with licensing applications does not absolve Plump of his obligation to meet GEICO’s bona fide job requirements. Even accepting Plump’s contention that the licensing department was entirely to blame does not change the fact he lacked the required New York license. And because Plump failed to appeal the denial of his application, Plump was prohibited from reapplying for a New York license until August 9, 2022—a year after his original application was denied. Absent an allegation that the licensing team’s failures were somehow deliberate, the question of fault is beside the point. 22 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 23
The problem with Plump’s arguments is that they are completely inconsistent with
the factual stipulations set out in the pretrial order. Plump stipulated (1) that for his
sales position, “he sold insurance to customers by telephone and, as such, was
required to obtain and maintain licenses issued by various states’ insurance
departments”; (2) “New York is the second must frequent state [Plump’s sales
department] receives calls from, so GEICO considers it a required state license for
the [department]”; and (3) he “was told that having a New York insurance license
was important to his role.” R. at 84. Plump’s argument that the New York licensing
requirement is not a bona fide job requirement is directly at odds with the fact
stipulations in the pretrial order. If the stipulations are accepted as true, no jury could
find that GEICO does not consider a New York license “a required state license” for
the sales department where Plump was employed.
“Generally, on motions for summary judgment, courts regard stipulations of
fact as admissions of the parties that are conclusive without further evidentiary
support in the record.” Kirtley v. Sovereign Life Ins. Co. of Cal. (In re Durability,
Inc.), 212 F.3d 551, 555 (10th Cir. 2000). Nevertheless, “[a]dherence to stipulated
facts . . . is not categorical.” Id. Significantly, at the summary judgment stage, a party
can move the district court to withdraw stipulations and is entitled to such relief upon
a showing of “good reason for the request.” Id. at 556. Here, however, Plump never
Regardless of who is to blame, the factual stipulations establish that Plump failed to meet a bona fide job requirement.
23 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 24
asked the district court for relief from his stipulations. Nor has he asserted in this
court that the district court plainly erred in failing to sua sponte grant him relief from
the stipulations. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir.
2011) (holding that “the failure to argue for plain error and its application on appeal
[] surely marks the end of the road for an argument for reversal not first presented to
the district court”). Instead, Plump has simply ignored his stipulations and faulted the
district court for failing to give credence to his evidence tending to disprove the
veracity of those stipulations. Such an approach is particularly inapt in the summary
judgment context. Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1244 n.6 (10th
Cir. 2015). Plump is bound by his stipulations and, in light thereof, no reasonable
jury could conclude GEICO’s New York licensing requirement is not a bona fide
requirement for the sales position Plump occupied.
Plump also claims a jury could find pretext based on what he alleges to be
GEICO’s shifting rationales for his termination. He notes that, at varying times,
GEICO explored the possibility of terminating his employment for call avoidance,
failure to obtain a New York license, and his “no call no show” status during his
leave. The problems with Plump’s arguments in these regards are multiple. First, it is
not clear that GEICO’s pretermination audit of Plump’s job performance even
amounts to shifting rationales. Plump certainly does not cite any authorities
supporting such a conclusion. Instead, the only relevant authority cited by Plump is
the non-binding decision of the United States District Court for the District of Kansas
24 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 25
in Berkemeier v. Standard Beverage Corp., 171 F. Supp. 3d 1122, 1137-38 (D. Kan.
2016).
The facts of Berkemeier are inapposite. The plaintiff in Berkemeier was
advised at the time of her termination that she was being let go to “cut costs.” Id.
at 1134. In response to a direct question whether her performance played a part in the
termination decision, the employer responded as follows: “no. You’re doing a great
job and have worked really hard . . . .” Id. When the employer responded to the
employee’s charge of discrimination before the Equal Employment Opportunity
Commission, however, the employer identified “performance-based reasons” for the
termination. Id. at 1138. The employer reiterated that performance-based reason
during the Berkemeier litigation that followed. Id. It was only in this context that the
Berkemeier court concluded a jury could find pretext based on shifting rationales. Id.
(“The timing of this change in explanation—after Plaintiff filed her EEOC
complaint—could support an inference of pretext.”). Moreover, Berkemeier
determined this shifting rationale was only probative of pretext because it was
coupled with a genuine fact issue as to the veracity of the employer’s late-blooming
performance-based rationale. Id. at 1137-38.
The factors supporting a finding of pretext in Berkemeier are not present here.
GEICO did not offer shifting rationales for its decision to terminate Plump. Instead, it
undertook a holistic analysis of his work performance, identified several deficiencies,
and ultimately decided to terminate him based on his failure to obtain the necessary
license to sell insurance in New York. It has not deviated from that basis for the
25 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 26
termination during any point in this litigation. Importantly, Plump has not identified
any authority supporting the proposition this court’s precedents dealing with shifting
rationales or explanations applies in such circumstances. Nor has Plump established
the existence of a genuine issue of material fact as to the bona fide nature of the New
York licensing requirement that GEICO has consistently used to justify the
termination. See Jaramillo v. Colo. Jud. Dept., 427 F.3d 1303, 1309-10 (10th Cir.
2005) (holding, in the context of a true case of a shifting employer rationale, that
“as a general rule, an employee must proffer evidence that shows each of the
employer’s justifications are pretextual” (quotation and alteration omitted)); see also
id. at 1310-11 (explaining at length the shifting-rationale doctrine and holding that,
generally, the “mere fact [an employer] has offered different explanations for its
decision does not create a genuine question of pretext”). As explained above, no
reasonable jury could conclude GEICO’s New York licensing requirement is not a
bona fide requirement for the sales position Plump occupied. On this record and these
arguments, the fact GEICO explored several bases for terminating Plump’s
employment does not raise a genuine question whether the use of the New York
licensing requirement to terminate Plump’s employment “was an attempt to mask an
illegitimate motive.” Id. at 1312.
Plump also asserts a jury could find pretext based on GEICO’s allegedly unfair
and inadequate investigation of the complaints he made to Human Resources on
December 10, 2021. The record is devoid of evidence from which a jury could
reasonably conclude GEICO’s investigation was inadequate or unfair. See DeWitt,
26 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 27
845 F.3d at 1315. The same day Plump initiated a complaint with Human Resources
about treatment unrelated to race or discrimination, Human Resources initiated a
meeting to discuss Plump’s concerns. The subsequent investigation included witness
interviews with various members of GEICO’s licensing and supervision teams and
several of Plump’s peers. Human Resources met with Plump to discuss the results of
the investigation on February 2, 2022. That same day, Beaver reminded Plump his
management team would be reviewing his employment due to the denial of his
New York insurance license application and invited him to submit a written statement
containing any information he wanted them to consider. Plump submitted a written
statement later that day. Cf. Iweha v. State of Kansas, 121 F.4th 1208, 1229 (10th
Cir. 2024) (holding in the cat’s paw context that, although not conclusive of the
issue, “an employer-decisionmaker may bolster its argument that it conducted an
independent investigation . . . by affording the employee-plaintiff an opportunity to
explain her side of the dispute”). Plump does not identify any aspect of this process
that is irregular or unfair. Instead, he argues the investigation was unfair because it
reached the wrong result. Much of that argument merely reasserts GEICO’s
requirement of New York licensure is not bona fide. But, as set out above, this
argument is inconsistent with, and foreclosed by, Plump’s pretrial stipulations. In any
event, evidence GEICO “should not have made the termination decision—for
example, that [it] was mistaken or used poor business judgment—is not sufficient to
show that [its] explanation is unworthy of credibility.” DePaula, 859 F.3d at 970-71.
27 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 28
None of the three bases for pretext discussed above, whether considered
individually or in combination, creates a genuine issue of fact as to pretext. Thus,
under the circumstances here, Plump’s Title VII and § 1981 discrimination claims
necessarily fail at the third stage of McDonnell Douglas. See Appellant’s Opening
Br. at 51 (recognizing the final basis for a finding of pretext advanced by Plump on
appeal, temporal proximity between his FMLA leave and his termination, does not
relate to his discrimination claims). Nevertheless, because each of the other bases for
establishing pretext identified by Plump on appeal fails, his temporal proximity
argument also fails. “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.” DePaula, 859 F.3d at 976. “[T]his court has refused to allow even very
close temporal proximity to operate as a proxy for the evidentiary requirement that
the plaintiff demonstrate pretext.” Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1172 (10th Cir. 2006) (quotations and alterations omitted). Thus,
“temporal proximity can support a finding of pretext only in combination with other
evidence of pretext.” DePaula, 859 F.3d at 976. “Because [Plump’s] other pretext
arguments fail, close temporal proximity alone is of no moment in this case.” Id.
(quotation omitted). 16 Accordingly, Plump’s FMLA and ADAAA retaliation claims
also fail at the third stage of McDonnell Douglas.
Accordingly, it is unnecessary to address an alternate basis to affirm raised 16
by GEICO on appeal. GEICO asserts Plump failed to establish a prima facie case of 28 Appellate Case: 24-3091 Document: 48 Date Filed: 12/16/2025 Page: 29
IV. CONCLUSION
For those reasons set out above, the United States District Court for the
District of Kansas’s grant of summary judgment in favor of GEICO on all of Plump’s
claims is hereby AFFIRMED.
retaliation. Appellee’s Response Br. at 27-29. GEICO notes Plump initiated his request for FMLA leave only after he was informed his sales job was in jeopardy. In these circumstances, GEICO asserts the mere existence of a temporal proximity of eight weeks between Plump’s request for FMLA leave and his termination is not enough to establish causation. The conclusion Plump failed to create a jury question as to pretext means it is unnecessary to resolve GEICO’s alternative basis to affirm.
Related
Cite This Page — Counsel Stack
Plump v. Government Employees Insurance Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plump-v-government-employees-insurance-company-ca10-2025.