Markley v. U.S. Bank, 59 F.4th 1072

Background

Markley, age 55, was a U.S. Bank Private Wealth Management market leader in Denver; he gave a subordinate (Provencher) an improper $10,000 loan and allegedly credited Provencher on sales where Provencher did not participate.
Internal audit showed Markley answered that Provencher attended client meetings for disputed sales; team members and Provencher contradicted those answers.
U.S. Bank’s Fraud Investigation Unit (investigator Plazola) interviewed nine team members, Markley, and Provencher, prepared a case summary finding misconduct, and recommended termination. A review committee and a three-member disciplinary panel unanimously recommended termination; Markley was fired.
Markley sued under the ADEA (age discrimination) and Colorado wrongful discharge; the district court granted summary judgment to U.S. Bank on the ADEA claim.
On appeal, Markley argued the investigation was a sham (predetermined), that investigatory flaws and failure to follow policy showed pretext, and that a supervisor (Ott) tainted the process (cat’s-paw/rubber-stamp). The Tenth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can investigatory flaws alone establish pretext?	Imperfections in Plazola’s probe show a sham investigation and thus pretext.	Flaws alone do not prove discriminatory motive; need other indicia of bias.	Flaws alone insufficient; must be coupled with other evidence of discrimination.
Was the investigation deficient/predetermined?	Investigator failed to review bank records, misunderstood compensation plan, omitted key witnesses, and mischaracterized Markley’s audit responses.	Investigator interviewed many witnesses, reviewed emails, and produced a reasoned summary; alleged omissions are speculative and would not have altered outcome.	Court: Markley showed at most imperfections, not a materially deficient investigation; criticisms are speculative and insufficient to show pretext.
Can Ott’s stated intent and recommendations be imputed (cat’s-paw/rubber-stamp)?	Ott told the investigator he wanted Markley fired; Ott’s bias tainted the process and was adopted by decisionmakers.	No evidence Ott harbored age bias; Ott was same age group; decisionmakers independently reviewed the report.	Without evidence Ott was motivated by age, a cat’s-paw/rubber-stamp theory fails.
Does failure to follow internal policy (not formally investigating alleged retaliation/sandbagging) show pretext?	Bank ignored policy requiring investigation of retaliation for reporting sales misconduct.	The alleged sandbagging was not reported in the way the policy contemplates; Bank did investigate delays and found no improper delay; procedural departures alone do not prove discrimination.	Court: Even if policy deviations occurred, Markley did not show they uniquely disadvantaged him or were tied to age discrimination.

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (established burden‑shifting framework for disparate treatment claims)
Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (ADEA requires but‑for causation standard)
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (plaintiff may prove discrimination via direct or circumstantial evidence; credibility of employer’s reason relevant)
Smothers v. Solvay Chems., Inc., 740 F.3d 530 (investigatory failures may support inference of pretext in some circumstances)
Jones v. Okla. City Pub. Schs., 617 F.3d 1273 (evidence creating genuine dispute on employer’s explanation defeats summary judgment)
Berry v. T‑Mobile USA, Inc., 490 F.3d 1211 (failure to follow internal procedures does not necessarily establish pretext)
Conroy v. Vilsak, 707 F.3d 1163 (procedural irregularity supports pretext only if it directly and uniquely disadvantaged employee)
EEOC v. BCI Coca‑Cola Bottling Co. of L.A., 450 F.3d 476 (explains cat’s‑paw theory in employment discrimination context)