Court Opinions: 10th Circuit Court of Appeals Opinion for March 1

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Gerovic v. City and County of Denver, et al.

Emina Gerovic is a caucasian woman of Bosnian ethnicity. In August 2014, she began her employment with the City and County of Denver as a custodian in the facilities management department. She initially worked at Denver Police District Five and was later reassigned to work at Denver Human Services. 

The defendants in the case were Gerovic’s supervisors and a private security contractor. According to court records, Leroy Lemos is a Hispanic man and served as the operations supervisor in the city’s general services agency during Gerovic’s employment, Kevin O’Neil is a caucasian man who served as the deputy director of facilities management, James Williamson is an African-American man who served as the director of facilities management and Murphy Robinson is an African-American man who served as the executive director of general services.

HSS is a private contractor that was hired by the city to provide security and personnel services at government buildings. 

Shortly after Gerovic began her employment with the City and County of Denver, she developed a discipline history because of a handful of incidents at work. Although she received reprimands, the incidents didn’t change her employment status and Gerovic’s later termination letter didn’t state that any prior discipline was the basis of her termination.

In May 2017, Lemos issued Gerovic a written reprimand disciplinary action regarding an incident that occurred at the Denver Motor Vehicles office where, according to the reprimand, a customer accused Gerovic of treating two men differently because of race. 

Although Lemos’ investigation into this incident at the DMV was the basis for Gerovic’s written reprimand, it wasn’t the basis for her termination, and it wasn’t identified as such in her termination letter. 

In September 2017, the city received information that Gerovic was representing herself as a Denver Police Officer on her public Facebook profile. Gerovic’s public Facebook profile listed her occupation as “police officer” and her employer as the “Denver Police Department.” Her profile also included photographs of Gerovic wearing clothes associated with DPD and her DPD-issued access card that featured a DPD badge. 

On Sept. 19, 2017, Gerovic was issued a contemplation of discipline letter and a contemplation of discipline meeting was scheduled for Sept. 28, 2017. On Sept. 20, Gerovic was reassigned to the building that houses DHS under a new shift. On Sept. 21, Gerovic met with O’Neil to discuss the change.

Gerovic then went to Robinson’s office to meet with him. During their meeting, according to Gerovic’s testimony, she said something to the effect of: “even if I kill myself to” prove how good she was working. Robinson, however, heard Gerovic say that she was going to kill herself, which caused him to fear for her safety and as a result she was placed on paid administrative leave and scheduled for a fitness for duty exam. Her administrative leave action notice stated she shouldn’t report to the workplace. 

Around that time, the city instructed HSS to create a “Be On the Look Out” poster so that Gerovic’s department could be aware when she was entering city facilities. The poster directed HSS employees in all buildings to contact their supervisors if they saw her on the premises. 

Around Oct. 3, 2017, Gerovic’s shift was changed back to her original shift. When Gerovic returned from administrative leave, she returned to her work as a custodian on the same shift, with the same pay and no change in benefits. 

When she returned to work, she overheard coworkers talking about the BOLO posters, became upset and raised concerns with city staff. The city then ordered HSS to remove the posters and, according to HSS, the posters were kept at a security desk that wasn’t accessible to the public or non-HSS employees. 

The contemplation of discipline letter from Sept. 19, 2017, was revised and reissued on Oct. 18, 2017, to include more information regarding the Facebook posts and her September 2017 meetings with her supervisors. 

A contemplation of discipline meeting was held Oct. 31, 2017, where Gerovic was represented by an attorney and had the opportunity to discuss everything in the contemplation of discipline letter. After the meeting, Williamson notified Gerovic of his decision to terminate her employment on Nov. 27, 2017. 

The primary focus of the dismissal letter was Gerovic’s public Facebook profile and the misrepresentation therein nor her evasive and inconsistent answers during the investigation into her posts. 

On Sept. 21, 2018, Gerovic filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission, checking the boxes for “retaliation,” “race” and “color.” The gist of Gerovic’s discrimination charges were that she believed she was singled out by Lemos for disciplinary action and punishment because she “is not Latina.”

After obtaining a “right to sue” letter, Gerovic filed the lawsuit in the Colorado district court on Dec. 30, 2019. In her second amended complaint, Gerovic alleged that the defendants “created and condoned a work environment that was hostile to employees who are not Hispanic.” 

Gerovic made claims for relief under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 1981, 42 U.S.C. section 1983 and alleged violation of her equal protection rights under the 14th Amendment. 

The defendants moved for summary judgment and in response, Gerovic raised a new theory of national origin discrimination. 

The district court granted the summary judgment motion to all of Gerovic’s claims. Gerovic moved to amend the district court’s judgment as to her Title VII retaliation claims, but the district court denied the motion. 

The district court granted summary judgment on Gerovic’s reverse race discrimination, reasoning she failed to establish prima facie case because she didn’t submit sufficient evidence to establish reasonable probability that she wouldn’t have been fired were she not a non-Hispanic Caucasian and because she failed to show the city’s reasons for firing her were pretextual. 

On appeal, Gerovic argued that the district court erred by granting the motion for summary judgment. 

The 10th Circuit Court of Appeals ruled the district court properly granted summary judgment because Gerovic failed to establish pretext for her termination. 

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