Think you have a discrimination claim? Here are a few things to consider.




The 10th Circuit recently made a ruling on a age and reverse discrimination claim in Palzer v. Coxcom, LLC. Palzer made claims that his supervisor was purposefully hiring individuals from other minorities and claimed his supervisor said, “We have enough white men in the group. We need to hire diversity.” His supervisor denied the remark but did admit that she did want diversity. Palzer was ultimately terminated a year after the situation based on his failure to meet his sales quota. Mr. Palzer brought civil rights claims for race discrimination, age discrimination, retaliatory discharge and breach of contract. What the court focused on with the facts was Mr. Palzer’s work performance and his failure to meet his sales quota.


What you have to prove in a discrimination case


In a discrimination case, the burden is on the Plaintiff, the employee or the person brining suit, to prove evidence of intentional discrimination. In most all discrimination cases, there is no smoking gun. Most employers are smart enough not to say, “we are terminating because of your race and your age.” This is what makes these cases hard. An employee has to prove discrimination through circumstantial evidence to show a discriminatory intent. If the employee can bring evidence to show discrimination, then the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision.


From my experience, employers always find some sort of basis as to why that person was fired. Sometimes attorneys try to claim that the person was at-will so they could be terminated for no reason, however, despite the at-will rule, there is always a reason to terminate someone even if they don’t have to say the reason. It is illegal to terminate someone based on a protected class so if they say it wasn’t for any reason, that’s a weak argument to claim it was a legitimate non-discriminatory reason.


If the company can show a legitimate non-discriminatory reason, then the burden again shifts back to the Plaintiff to show that the decision to terminate was based on pretextual discriminatory reasons. Pretext is established by showing that its actions for terminating an individual was incoherent, weak, inconsistent or contradictory where a rational factfinder could conclude they were unworthy of belief. So if the reason for termination is weak, like he sneezed the wrong way, that could be pretextual. Or if there are inconsistencies.


This can be shown by showing that the basis for termination was not supported by fact such as weak sales, can be shown by showing the sales were actually not weak. This can also be shown with other employees doing the same things and the failure for the company to terminate the other individuals on the same issues. Or if the company tells the employee one basis for termination and then comes up with another basis along the way, that can be pretextual as well. Companies know they have to come up with a non-discriminatory reason, and sometimes they can tie themselves into knots when they try to throw the sink at someone and come up with a laundry list on why they were terminated.


Sometimes, the timing as well might not add up. If someone makes a complaint about discrimination and they are terminated the week or day after, it raises questions as to why terminate that person at that time. This can be a tricky situation though because sometimes an employee may complain about discrimination after a poor performance review and ultimately get terminated after the complaint. One could claim if they weren’t terminated and only given a poor performance review they weren’t planning on terminating that person and the decision was made only after the complaint was made. Also, again, the performance review would have to be scrutinized on if the poor performance was justified based on actual performance and perhaps performance of other employees.


In the case the 10th circuit decided, they ultimately concluded that his track record on his quota for sales was not on par and the basis to terminate him based on his sales record was a legitimate non-discriminatory reason. This should be a reminder on how difficult these cases can be to prove. If someone had poor performance and was terminated, it is an uphill battle to show the termination was based on discriminatory reasons instead of poor performance. Proving a case through circumstantial evidence is also hard and the company will always try and poke holes into the circumstantial evidence and always lean on the basis for termination.

These cases can take a long time to resolve.


How long a case can take


You first have to file something with the Utah Labor Division or the Federal EEOC (Equal Opportunity Commission) before you can sue in Federal Court. It must be filed within 180 days of the last discriminatory act with Utah and 300 days with the Federal. They conduct an investigation. Both agencies are so overloaded the investigation might take over a year. You can also obtain a notice of right to sue after 6 months. Thereafter, you can sue in federal court. The other side may file a motion to dismiss your complaint. This alone could take up to 9 months to resolve. If you survive the motion, then you go into discovery.


Both sides exchange documents. Both sides are allowed to ask questions or ask the other side to admit facts. Both sides are allowed to sit down with witnesses to the case and ask them questions under oath, known as a deposition to get a better view of what testimony would look like in court. This process can take well over a year. There is also expert discovery, where experts are allowed to review the discovery evidence and make legal opinions on the evidence which can be an additional 6 months. Thereafter, based on the evidence, one side may file a motion for summary judgment, meaning, they are telling the court to rule in their favor because there are facts that are not in dispute and the evidence is so favorable that it is a “slam dunk” to where no trial is needed.


The briefing alone is about two to three months. Thereafter, you wait to hear from the court. The court may want a hearing to discuss the issues more in-depth. Or the court may issue an opinion without oral argument. It can take over 6 months to hear back from the court. If you lose on Summary Judgment or the other side does not prevail on Summary judgment, then the case goes to trial and it would take another 6 months to get the case in trial.


Overall, you could potentially be looking at 4.5 years until a case is resolved if you hit all the snags with a motion to dismiss, a motion for summary judgment and then went to trial. Also, the 10th circuit case decided had facts that occurred in 2013. The 10th Circuit just ruled on its appeal from a motion for Summary Judgment so it took seven years to resolve. To say the least, these cases are a big investment for attorneys so it is always good to have your case reviewed by our firm to see if it is a case worth pursuing or not.


I have had situations where the case has dragged on for so long where clients just want to dismiss and move. This puts legal counsel in a hard situation in the investment they have made in the case. It also stresses out clients as the case is always on the back of their mind. Also, some clients may rely on the award as somehow a compensation that will make them wealthy or a means of income. This is never a good mind-set.


What damages look like


Even if your case is a slam-dunk case where you have the smoking gun ... meaning essentially your supervisor told you you were being terminated because of your race or any other protected class and you have it recorded and on video and it was made in front of 6 other employees, the other thing to consider is if you won, how much could you potentially receive in damages?


Also, individuals should know that there is a cap on pain and suffering damages if the case involves some kind of emotional trauma from work-site harassment. These damages are capped at a maximum of $300,000.00 depending on the size of the company. If it is a smaller company, the damages will be less. Also, even though this is the cap, this is not a guarantee you will be awarded that much in damages and could be much less. You also may need an expert or a medical physician to prove your emotional trauma and that it was caused from actions at work. There is no clear-cut formula for emotional distress damages so it is hard to gauge what it could be. It is a matter of convincing a jury that your damages are attached to a dollar amount, usually it is through showing them how much it should be a day from the past and into the future.


As to damages for lost wages and benefits, it is important to know that after your termination, if it involves termination, you must "mitigate your damages." Meaning, you must make a good-faith attempt to find employment afterwards. You have to show what jobs you applied to afterwards. If you can't show this, your damages will stop at the time you failed to mitigate. Also, when you find new employment your damages changes.


If you start making $1 an hour less, your damages will be $1 an hour less at that point moving forward. If you start making $1 more, you won't have any future damages. That is also an important thing to consider. If there isn't severe emotional trauma and you find a job that makes more in a week it may not be worth it to pursue a case unless you think you have a higher point to prove and want to send the company a message.


You can also potentially recover punitive damages. However, I always tell individuals not to bank on, focus on or calculate in punitive damages. Punitive damages is a penalty fee to the company to punish them for malicious wrongdoing in what they did and to deter future violations. The maximum one can recover in punitive is a maximum of double the amount of actual damages. This also is no guarantee it will be that amount and again would depend on the size of the company. There is also no guarantee a judge will award punitive damages.


Also, if the company wins on Summary Judgment like what happened in the 10th Circuit case, the court could award litigation fees to the company you would have to pay such as the filing fee, deposition fees and even expert fees. The statute in civil rights claims also allows the award of attorney fees to the prevailing party so you may also be on the hook for attorney fees which can be a huge stinger.


One thing attorneys do is essentially take off a social load from someone else. What is their problem is now your attorney’s problem. At that point, all you have to do is be a witness. You just have to tell your story on what happened like all the other witnesses in the case. It is best to move on with your life and focus on the future, your new job or hobbies and activities instead of festering over the case all the time and allow your attorney to do so, especially with the high amount of time it will most-likely take to resolve your case.


The full text of the 10th Circuit opinion is below:


Raymond Montoya appeals from the district court’s order granting summary judgment in favor of his former employer, Jacobs Technology, Inc. (Jacobs), on his claim for age discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


BACKGROUND


Montoya began working for Jacobs in 1995. From at least 2011 until he was terminated at age 49 in July 2015, Montoya worked as a systems test mechanical technician. At all relevant times, Montoya reported to Dennis Smith.


The event giving rise to Montoya’s termination took place on July 10, 2015, when Smith learned that Montoya and another Jacobs employee, Louis Lombardi, had been involved in a workplace incident. Montoya needed to borrow a work truck from Lombardi, and Lombardi agreed to lend him the truck. But before Montoya could get into the vehicle, Lombardi decided that he should check with Montoya’s team lead before turning over the truck. Lombardi told Montoya to wait while he obtained authorization and drove off to check with Montoya’s supervisor.


When Lombardi returned, he saw Montoya standing in the middle of the road, facing the passenger side of the truck. According to Montoya, Lombardi deliberately drove the truck at him, hitting the left side of his body. Lombardi, on the other hand, said that as he was trying to slowly maneuver the truck around Montoya, Montoya reached out and shoved the truck or hit it with his arms. There is no dispute that Lombardi then got out of the truck and the two men exchanged words.


Next, Montoya and Lombardi went to Smith’s office to report the incident. Smith was not in, so Montoya contacted him by telephone. After listening to Montoya’s account, Smith told Montoya to go to the on-site dispensary for treatment. The dispensary found no serious injuries, but nonetheless referred Montoya to the 3 hospital, where he complained of bruising on his left arm and leg. The hospital released him with no restrictions.


Later the same day, Jacobs’s Human Resources Manager, Yolanda Ramos, met with Montoya, Lombardi, and two other men who had been at the scene. The two men told Ramos they had not seen what happened. Ramos, who was then joined by Smith, Jacobs Director Brant Adams, and union representative Chris Valdivia, interviewed Montoya and Lombardi. Both men were warned at the outset of their respective interviews that providing false or misleading information could result in termination.


Lombardi stated that he tried to drive the truck around Montoya, but as soon as the front of the truck passed Montoya, Montoya reached toward the truck and made some movement with his hands. For his part, Montoya said that he was facing the truck and standing on the passenger side when Lombardi sideswiped him.


The following Monday, July 13, 2015, Ramos interviewed a third witness— Manny Saldivar—a welder who worked for an outside company. Saldivar confirmed Lombardi’s account of the incident: “[Lombardi] started to go around [Montoya] with the truck and it looked to me that [Montoya] stepped forward and slapped the truck with one hand and punched the truck with his other hand.” Aplt. App., Vol. 1 at 178. “I even told [a coworker], ‘[Montoya] just punched the truck.’” Id. at 179. When asked whether the truck had struck Montoya, instead whether Montoya had struck the truck, Saldivar said, “I saw [Montoya] hit the vehicle.” Id. Saldivar also 4 said that Montoya was “facing the passenger door” when he hit the truck with his hands. Id.


That same day, Ramos prepared a report that summarized the accounts given by Montoya, Lombardi, and Saldivar. She recommended that Montoya be discharged for several reasons, including his having provided untruthful and misleading information during the investigation. Specifically, Ramos noted that “[w]e cannot comprehend how an individual who is facing a vehicle, states that he is struck by the passenger side of the vehicle, yet is injured on his left thigh and his left arm.” Id. at 197-98. As to Lombardi, Ramos recommended that he be suspended for three days and given a written warning for violating several company rules.

Adams and Smith agreed with Ramos’s recommendations, and Adams fired Montoya. See id. at 199, 205. He relied on two factors: (1) safety violations, and (2) his belief that Montoya had lied. See id. at 205.


Montoya sued asserting five claims: (1) age discrimination, (2) disability discrimination, (3) failure to accommodate his disability, (4) retaliation in response to his complaints of age discrimination, and (5) retaliation in response to his complaints of disability discrimination. The district court granted Jacobs’s motion for summary judgment on all claims. Montoya appeals only the portion of the order dismissing his age-discrimination claim.


II. STANDARD OF REVIEW


“We review the district court’s grant of summary judgment de novo, applying the same standard used by the district court.” Riggs v. AirTran Airways, Inc., 5 497 F.3d 1108, 1114 (10th Cir. 2007). Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “In making this determination, we view the evidence in the light most favorable to . . . the non-moving party, and draw all reasonable inferences in [his] favor.” Riggs, 497 F.3d at 1114. The court resolves a motion for summary judgment in an employment-discrimination case the same way it would resolve “a motion for summary judgment in any other civil action: the court acts as a gatekeeper, granting judgment as a matter of law unless the plaintiff has adduced relevant and probative evidence sufficient to support a jury verdict in his . . . favor.” Id. at 1117.


III. ANALYSIS


Under the Age Discrimination in Employment Act (ADEA), an employer cannot “discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). ADEA protection extends to individuals who are 40 years of age or older. See id. § 631(a). “[A] plaintiff suing under the ADEA must prove that the challenged employment action was motivated, at least in part, by age.” Riggs, 497 F.3d at 1114. This burden may be met “either by presenting direct evidence of the employer’s discriminatory intent or by presenting circumstantial evidence creating an inference of a discriminatory motive using the tripartite burden-shifting analysis” articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Riggs, 497 F.3d at 1114. burden-shifting analysis.” Id. Because Montoya 6 has no direct evidence of discriminatory intent, his claim must rely on circumstantial evidence and proceed under the McDonnell Douglas framework.


“Under McDonnell Douglas, the plaintiff first bears the burden of proving a prima facie case of discrimination.” Id. “If the plaintiff successfully proves a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer [does so], the burden shifts back to the employee to prove that the proffered legitimate reason was a pretext for discrimination.” Id. at 1114-15 (citation omitted).

For purposes of appeal, Jacobs assumes that Montoya could establish a prima facie case of age discrimination, and Montoya concedes that Jacobs has articulated a legitimate, nondiscriminatory reason for its decision to terminate his employment.


As a result, “[t]he employer’s articulation of a legitimate, nondiscriminatory reason for the adverse employment action causes the presumption of discrimination . . . to simply drop out of the picture.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007) (brackets and internal quotation marks omitted). Now, the only issue is whether Montoya met his burden to “show[] that the proffered reason [for his termination] is a pretext for illegal discrimination.” Id. (internal quotation marks omitted). We agree with the district court that Montoya “failed to carry his burden of showing that [Jacobs’s] legitimate reason for discharge was a pretext.” Aplt. App., Vol. 2 at 499.


“Under our precedents, a plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are so 7 incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief.” Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir. 2010) (brackets and internal quotation marks omitted). “Evidence that the employer should not have made the adverse employment decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer’s explanation is unworthy of credibility.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017) (brackets and internal quotation marks omitted). Thus, even if a jury could conclude “that [Jacobs’s] decision was intemperate and unfair,” as Montoya alleges, “[s]uch considerations . . . are not within the purview of . . . the ADEA.” Timmerman, 483 F.3d at 1120 (internal quotation marks omitted). “[T]he issue is not whether the decision to terminate [Montoya] was wise, fair or correct, but whether [Jacobs] reasonably believed at the time of the termination that [Montoya] had violated company policy, and acted in good faith upon that belief.” Id.


Montoya argued in district court, and repeats in this court on appeal, that “[a] reasonable trier of fact could conclude that Jacobs’ stated reasons for terminating Montoya were [a pretext for age discrimination].” Aplt. Opening Br. at 26-27. But “[t]o support an inference of pretext, . . . a plaintiff must produce evidence that the employer did more than get it wrong. He or she 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.” Johnson, 594 F.3d at 1211. 8


Montoya cites seven facts that he contends raise a genuine issue about whether Jacobs’s beliefs were sincere. None of this evidence, however, relates to the beliefs of the decision-maker Adams, or Ramos, the human-resources manager who conducted the investigation and made the recommendation to terminate Montoya. As such, Montoya cannot satisfy his burden to present evidence of pretext.


First, Montoya argues that “inconsistencies” regarding the reason he was terminated and who made the decision to fire him “would allow a reasonable factfinder to question the credibility of Jacobs’ stated reasons.” Aplt. Opening Br. at 27. It is unclear whether Montoya raised this argument in the district court. Nonetheless, we agree with Jacobs that the record does not support these assertions. Adams, Ramos, and Smith all disbelieved Montoya and found safety violations. No one disputes that Adams made the final decision with input from Ramos and others.


Second, while it is true that Montoya and Lombardi gave different accounts of the incident, Jacobs’s believing Lombardi does not make the decision insincere. “This court’s function is not to second guess business decisions made by employers, and our inquiry is not whether [Jacobs’s] decision to fire [Montoya] was ultimately correct or wise.” Cillo v. City of Greenwood Vill., 739 F.3d 451, 463 (10th Cir. 2013) (internal quotation marks omitted). 9

Third, contrary to Montoya’s assertion, Smith did not say that the conclusion that Montoya lied was illogical. What Smith actually said was that walking into the truck was not a “logical” thing to do. Aplt. App., Vol. 2 at 328. Indeed, “based on the results of the investigation,” including Montoya’s statement that he was facing the truck on its passenger side yet was stuck on his left side, the only logical conclusion Smith could reach was that Montoya had walked into the truck. Id. at 329-30.


Fourth, Montoya’s reliance on Smith’s and the union representative’s deposition testimony about never having had reason to question Montoya’s truthfulness avails nothing. The union representative was not part of the decisionmaking process, and Smith’s testimony concerned his observations as Montoya’s supervisor, not as the decision-maker. Moreover, Smith testified unequivocally that he believed that Montoya had been untruthful about the July 10, 2015 incident.


Fifth, Montoya argues that Adams failed to ask him for his “side of the story,” which demonstrates his indifference. Aplt. Opening Br. at 29. This argument overlooks the fact that Adams was present when Ramos questioned Montoya and was well aware of his version of events.


Sixth, Montoya maintains that Lombardi’s more favorable treatment—a threeday suspension—is evidence of pretext. In this regard, he relies on Dewitt v. Southwestern Bell Telephone Co., 845 F.3d 1299, 1311 (10th Cir. 2017), in which we recognized that “showing disparate treatment—by demonstrating that the employer treated employees similarly situated to the plaintiff employee differently (i.e., more 10 favorably)—is a particularly potent instrument to discredit an employer’s allegedly legitimate reasons.” The problem for Montoya, however, is that he is not similarly situated to Lombardi. Jacobs determined that Montoya provided false and misleading information about the incident. By contrast, Lombardi’s version of events was corroborated by a third-party witness. Because there are significant differences between Montoya’s and Lombardi’s conduct, Montoya’s “allegations of disparate discipline do not suffice to show pretext.” Salguero v. City of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004).


Last, Montoya maintains that Jacobs did not follow company policy in firing him, which in turn demonstrates pretext. We agree with Montoya’s general statement that pretext can be shown by evidence that the defendant acted contrary to a written company policy prescribing the action to be taken under the circumstances. It is equally true, however, that where “progressive discipline [is] entirely discretionary . . . , the failure to implement progressive discipline is not evidence of pretext.” Timmerman, 483 F.3d at 1120.


The stated purpose of Jacobs’s policy is “[t]o provide employees with guidelines regarding disciplinary actions . . . .” Aplt. App., Vol. 2 at 441 (emphasis added). Further, the policy defines “discharge” as “[a]ction taken for a serious offense or for repeated minor offenses,” but does not further define “serious” or “minor.” Therefore, whether an offense is “serious” is left to the discretion of the company. Jacobs determined, in its discretion, that Montoya’s offense was “serious” 11 and that he should lose his job. This discretionary decision is not evidence of pretext.


IV. CONCLUSION


For the foregoing reasons, the judgment of the district court is affirmed.


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