The Tenth Circuit Court of Appeals has affirmed a lower court’s decision to grant summary judgment to the Government Employees Insurance Company (GEICO) in a wide-ranging employment lawsuit brought by former employee Dion Plump. Plump, a Black male, alleged race discrimination under Title VII and 42 U.S.C. § 1981, as well as retaliation under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADAAA).
While the appellate court acknowledged an error in the initial stage of the district court’s analysis regarding Plump’s race discrimination claims, it ultimately concluded that Plump failed to produce enough evidence to proceed to trial on the crucial issue of pretext for all his claims.
The Core Allegations and Legal Framework
Plump’s employment with GEICO as a sales representative in Lenexa, Kansas, began in June 2020. His role required him to maintain licenses from various states. A central issue arose when his application for a New York insurance license was denied in August 2021 because he failed to disclose a prior license issue in North Dakota. Plump never appealed the denial, which barred him from reapplying for a year.
GEICO maintains that the New York license was a required qualification for sales representatives, given the high volume of calls originating from that state. After discovering the denial, and following internal audits that flagged other performance issues—including high call transfer rates attributed partly to licensing problems and alleged “call avoidance”—GEICO eventually terminated Plump in February 2022.
The Tenth Circuit applied the familiar *McDonnell Douglas* burden-shifting framework, which requires the plaintiff (Plump) to first establish a basic case (prima facie), then shift the burden to the employer (GEICO) to offer a legitimate, non-discriminatory reason for the adverse action, and finally, shift the burden back to the plaintiff to show that the employer’s stated reason was merely a pretext for discrimination or retaliation.
The Mixed Ruling on the Prima Facie Case
The district court had initially dismissed Plump’s race discrimination claims (Title VII and § 1981) entirely at the prima facie stage, finding insufficient evidence of racial motive.
Plump appealed this finding, arguing that under established Tenth Circuit precedent (*Kendrick* and *Perry*), he met the low threshold for a prima facie case by showing he belonged to a protected class, was qualified, was discharged, and, critically, that his sales position was *not* eliminated afterward.
The Tenth Circuit agreed with Plump on this specific point. The court found that the district court erred by failing to recognize that the continued existence of his sales position after his firing could, by itself, create an inference of discrimination, as established in *Kendrick*.
However, the Court of Appeals deemed this error “harmless.” This was because the court found that Plump’s case failed at the next, more stringent step: proving pretext. As the court noted, the district court’s separate ruling that Plump lacked evidence of pretext for his FMLA and ADAAA retaliation claims applied equally to his race discrimination claims.
Failure to Prove Pretext Dooms All Claims
The appellate court affirmed the summary judgment because Plump could not demonstrate that GEICO’s stated reason for termination—the failure to secure the required New York license—was a lie or mask for discrimination.
Plump attempted to show pretext through several arguments, none of which convinced the appellate panel:
1. Bona Fide Requirement: Plump argued the New York license requirement was not truly essential or was imposed unfairly, partly due to failures by GEICO’s internal licensing team. The court swiftly rejected this. Plump was bound by factual stipulations made in the pretrial order, where he agreed that sales representatives were required to maintain state licenses and that the New York license was considered a “required state license” for his department. Since Plump did not seek relief from these stipulations, the court ruled that no jury could find the requirement was not legitimate.
2. Shifting Rationales: Plump suggested GEICO shifted reasons for firing him, citing investigations into call avoidance and his subsequent leave status. The court found no evidence of true “shifting rationales.” GEICO consistently maintained that the core reason was the lack of the New York license, while concurrently investigating other performance issues. The court emphasized that courts cannot second-guess an employer’s business judgment, even if the employer investigated multiple potential grounds for termination.
3. Inadequate Investigation: Plump claimed GEICO’s investigation into his earlier Human Resources complaints was unfair. The court found the investigation appeared thorough, including witness interviews, and that Plump’s argument that the investigation reached the “wrong result” does not equate to proof of pretext.
4. Temporal Proximity: Plump pointed to the close timing between his request for FMLA leave and his termination as evidence of retaliation/pretext. The court noted that while temporal proximity can help establish a prima facie case of retaliation, it is generally insufficient on its own to prove pretext at the third stage of the analysis unless supported by other evidence. Since Plump’s other pretext arguments failed, his temporal proximity argument also fell short.
In summary, despite agreeing that Plump cleared the initial hurdle of establishing a prima facie case for race discrimination, the Tenth Circuit found that the undisputed facts, particularly the stipulations regarding the necessity of the New York license, prevented Plump from showing that GEICO’s reason for firing him was pretextual. Therefore, the lower court’s grant of summary judgment for GEICO stands.