25 F.4th 1280
10th Cir.2022Background
- Litzsinger worked as a medicolegal death investigator for the Adams County Coroner’s Office (2013–2018); she had documented anxiety/depression and sought counseling.
- In August 2018 she left work after an anxiety-related ER visit and took FMLA leave (Aug 9–21); the Coroner had been planning a disciplinary meeting for prior performance issues.
- On Aug 30 the Coroner placed Litzsinger on probation for multiple policy violations, prominently excessive personal Internet use during shifts and being chronically behind on work; Litzsinger acknowledged the violations.
- While on probation Litzsinger continued to access personal websites; the Coroner terminated her on Sept 16, 2018 for violating probation.
- Litzsinger sued for FMLA retaliation and ADA discrimination; the district court granted summary judgment for the Coroner’s Office; the Tenth Circuit affirmed, holding Litzsinger failed to raise a genuine issue that the proffered reason was pretextual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was pretext for FMLA retaliation/ADA discrimination | Litzsinger contends firing closely followed FMLA leave and that the real motive was retaliatory/discriminatory | Coroner says legitimate nondiscriminatory reason: termination for probation violation (personal internet use and related performance problems) | Court: No genuine dispute of pretext; timing alone insufficient and plaintiff failed to show employer didn’t believe its reason |
| Coroner's statements showing retaliatory motive | Email expressing skepticism about FMLA use (called it "highly suspect") and quotes around “chest pain” show hostility toward leave/faking disability | Coroner argues statements reflect concern about improper use of Nicoletti‑Flater and the process, not hostility to disability leave itself | Court: Statements show skepticism about procedure, not intent to retaliate; not probative of pretext |
| Disparate treatment re: Internet use | Litzsinger: moderate personal Internet use was common and allowed as "incidental" under policy; others weren’t fired for similar use | Coroner: Litzsinger was on express probation banning personal Internet use; policy makes incidental use discretionary and revocable | Court: No evidence of similarly situated comparators; termination was consistent with probation and policy |
| Alleged shifting justifications for termination | Litzsinger: later statements and filings added other reasons, suggesting inconsistency and unreliability of employer’s story | Coroner: Additional reasons are elaborations/related consequences of the same underlying misconduct (internet use, missed deadlines, falsified time) | Court: Coroner never abandoned the initial reason (internet use); additional explanations do not show dishonesty or bad faith |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (framework for burden‑shifting in disparate treatment/retaliation cases)
- Fassbender v. Correct Care Sols., LLC, 890 F.3d 875 (10th Cir. 2018) (hostile statements and shifting explanations can support pretext when probative)
- Johnson v. Weld Cty., Colo., 594 F.3d 1202 (10th Cir. 2010) (plaintiff must show employer didn’t really believe its proffered reason)
- Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007) (pretext shown by showing employer’s explanation is unworthy of credence)
- Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011) (inconsistencies must suggest dishonesty or bad faith to support an inference of pretext)