FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 4, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
RAYMOND L. ZISUMBO,
Plaintiff - Appellant/Cross -
Appellee,
v. Nos. 13-4179, 14-4014, 14-4019
OGDEN REGIONAL MEDICAL
CENTER,
Defendant - Appellee/Cross -
Appellant.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:10-CV-00073-TS)
_________________________________
April Lynn Hollingsworth, Hollingsworth Law Office, Salt Lake City, Utah, for Plaintiff-
Appellant.
Mark D. Tolman, (Michael Patrick O’Brien and J. Angus Edwards, with him on the
briefs) Jones Waldo Holbrook & McDonough, P.C., Salt Lake City, Utah, for Defendant-
Appellee.
_________________________________
Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
Within a month after Raymond Zisumbo complained to his supervisor at Ogden
Regional Medical Center (ORMC) about alleged race discrimination in the workplace,
ORMC investigated Zisumbo for submitting apparently fraudulent letters to his
supervisor months earlier. After confirming that at least one of the letters was falsified,
ORMC terminated Zisumbo’s employment. Zisumbo sued ORMC for race discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and for breach of the implied duty of good faith and fair dealing under
Utah law. After years of litigation, procedural wrangling, and a previous appeal to this
court, only Zisumbo’s Title VII claims for unlawful termination remained to be tried to a
jury. The jury found in favor of ORMC on Zisumbo’s discrimination claim but in favor
of Zisumbo on his retaliation claim.
In cross-appeals and a third parallel appeal, the parties raise numerous issues.
Zisumbo challenges the district court’s decisions denying his request to amend his
complaint, granting ORMC summary judgment on his good faith and fair dealing claim,
and denying in part his request for reinstatement, front pay, and back pay, as well as his
request for attorneys’ fees. ORMC appeals the denial of its renewed, post-trial motion for
judgment as a matter of law, and the denial of its request to further reduce Zisumbo’s
Title VII remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
ORMC employed Zisumbo as a Computer Tomography (CT or CAT scan)
Technician in its imaging department from March 2005 to October 2009. Before
beginning work with ORMC, Zisumbo acknowledged through his signature on an
employment application and on an employee handbook acknowledgment card that
any job offer extended to him would be for at-will employment. Sometime after he
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started at ORMC, Zisumbo also signed a form acknowledging his receipt of a copy of
ORMC’s Code of Conduct and his understanding of the mandatory nature of the
policies contained therein.
After Zisumbo had worked for OMRC for approximately four years, Anthony
Rodebush became his supervisor. About that time, Zisumbo sought a promotion to a
vacant CT Coordinator position. In early August 2009, Rodebush became curious as
to why Zisumbo was so eager to get the promotion. Rodebush asked Zisumbo if he
was worried that he wouldn’t be able to get a coordinator job elsewhere and whether
he’d been fired from other jobs. Zisumbo responded by offering to produce letters
from his previous employers proving he was not fired. Later that same day, Zisumbo
gave Rodebush letters from the University of Utah Hospital and St. Mark’s Hospital.
Rodebush also received a letter from McKay Dee Hospital. Without reviewing the
letters, Rodebush placed them in a file in his desk.
On September 15, 2009, Rodebush informed the CT department during a staff
pizza party at which Zisumbo was present that Zisumbo was seeking the CT
Coordinator position. Rodebush suggested that the CT staff’s lack of confidence in
Zisumbo’s leadership ability was preventing Zisumbo from being promoted.
Rodebush encouraged employees at the meeting to discuss examples of Zisumbo’s
shortcomings and to compare his abilities to those of another employee—the
employee ultimately promoted to the CT Coordinator position. Later that day,
Zisumbo accused Rodebush of treating Zisumbo differently than other employees
because Zisumbo is Hispanic. Rodebush suggested Zisumbo discuss his concerns
3
with ORMC’s director of human resources, Chris Bissenden. Zisumbo interpreted
this suggestion as a threat because he felt Bissenden didn’t like him.
Zisumbo didn’t take his concerns to Bissenden. Instead, about a week after the
pizza party, he filed a complaint with the Utah Antidiscrimination and Labor
Division complaining of race discrimination and also contacted ORMC’s ethics line
complaining of race discrimination and unprofessional behavior. The ethics line
report of Zisumbo’s complaint, however, did not mention race discrimination;
instead, it noted only that Zisumbo complained of unprofessional behavior by
Rodebush and other staff.
Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s
ethics line complaint. In doing so, Taylor met privately with Rodebush but not
Zisumbo. Instead, on October 1, 2009, Taylor met with both Rodebush and Zisumbo
to discuss the complaint.
The next day, October 2, 2009, Rodebush and Bissenden gave Zisumbo a
written warning for unrelated incidents occurring several months earlier. Less than a
week later, on October 8, 2009, Taylor asked Rodebush about Zisumbo’s allegations
that his coworkers were spreading rumors that Zisumbo had been fired from previous
jobs. This questioning spurred Rodebush to give Taylor the letters Zisumbo had
given Rodebush approximately two months earlier when Rodebush questioned
Zisumbo about whether he’d been fired from previous jobs.
Rodebush reviewed the three letters for the first time with Taylor on October
8, 2009, and the two men concluded the St. Mark’s and McKay Dee letters appeared
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to have been fabricated. Both letters employed an informal and unprofessional tone
and neither appeared to have been prepared on official hospital letterhead. One letter
was unsigned and the signature on the other contained only a first name.
However, neither Rodebush nor Taylor confronted Zisumbo about the letters’
authenticity. Instead, they gave them to Bissenden and conveyed their concerns to
her. Bissenden agreed the letters appeared suspicious, and she immediately began
investigating their authenticity. St. Mark’s human resource director confirmed that its
human resource department had not issued Zisumbo’s letter. Bissenden also
unsuccessfully attempted to contact McKay Dee’s human resource department that
day.
Later that same day—October 8, 2009—Rodebush and Bissenden met with
Zisumbo. Bissenden gave Zisumbo all three letters and discussed each of them with
him. Rodebush advised Zisumbo that ORMC had confirmed that the St. Mark’s letter
was fraudulent and that ORMC was terminating Zisumbo’s employment for
dishonesty.
The next day, Bissenden confirmed that the McKay Dee letter had not been
issued by that hospital’s human resource department. That same day, Zisumbo’s
attorney contacted Bissenden, saying “they” had confirmed the authenticity of the St.
Mark’s letter and claiming “Ashley” at St. Mark’s prepared the letter. Bissenden
immediately contacted St. Mark’s human resource department and spoke with Ashley
Jorgensen. Ashley advised Bissenden that she had not written the letter because she
was on maternity leave on the date the letter was written.
5
Zisumbo filed this action on May 12, 2010, alleging only a Title VII hostile
work environment claim. Six months later, ORMC agreed to permit Zisumbo to
amend his complaint to allege (1) Title VII race discrimination claims based on
hostile work environment, failure to promote in 2007 and 2009, and discriminatory
termination; (2) a Title VII retaliation claim asserting ORMC fired Zisumbo for
complaining about race discrimination; and (3) a state law claim for breach of the
duty of good faith and fair dealing based on Zisumbo’s claim that ORMC violated its
anti-discrimination policy.
Early in the litigation, the district court entered a stipulated scheduling order
setting deadlines for joining parties (July 29, 2011), amending pleadings (September
29, 2011), and discovery (December 30, 2011). The parties agreed to multiple
continuations of the discovery deadline, ultimately extending it to August 31, 2012.
But they did not agree to extend the other deadlines.
Nearly two years into the litigation and four months after the September 29,
2011, deadline, Zisumbo again sought to amend his complaint—this time to add a
claim of race discrimination under 42 U.S.C. § 1981. This amendment, if permitted,
would have added Rodebush as a defendant and three new state-law claims. But the
district court denied Zisumbo’s motion to amend.
Undeterred, Zisumbo filed a new lawsuit in the same court alleging the same
claims he unsuccessfully sought to add by amendment in this case, and he then
moved to amend the complaint in this case to consolidate the two cases. After the
district court dismissed the second action, Zisumbo withdrew his motion to
6
consolidate and appealed the dismissal of the second suit. We ultimately rejected
Zisumbo’s ill-conceived effort to end-run the district court’s decision. See Zisumbo v.
Ogden Reg’l Med. Ctr., 536 F. App’x 832, 833 (10th Cir. 2013) (unpublished).
In the meantime, this case proceeded in the district court with that court
eventually granting ORMC summary judgment on Zisumbo’s good faith and fair
dealing claim, hostile work environment claim and 2007 failure to promote claim.
Displeased with this ruling, Zisumbo sought reconsideration of the district court’s
grant of summary judgment on his good faith and fair dealing claim. Alternatively,
Zisumbo sought yet again to amend his complaint, this time to add a breach of
contract claim. The district court denied reconsideration and again refused to permit
Zisumbo to amend.
Zisumbo’s remaining claims were tried to a jury. Midway through trial,
Zisumbo dismissed his 2009 failure to promote claim, leaving only his discrimination
and retaliation claims based on unlawful termination. The jury found against
Zisumbo on his discriminatory termination claim but found in his favor on his
retaliatory termination claim.
In the remedy phase, Zisumbo sought back pay up to trial, and reinstatement to
his job or front pay for three years, for total damages of nearly $550,000. The district
court awarded him only $65,228.04, concluding Zisumbo’s post-employment guilty
plea to the misdemeanor assault of his daughter curtailed his back pay and rendered
him ineligible for reinstatement or front pay.
7
After the district court entered judgment, both parties sought attorneys’ fees
and ORMC renewed its motion for judgment as a matter of law on Zisumbo’s
retaliation claim. The district court denied ORMC’s motion for judgment as a matter
of law and granted in part both parties’ motions for attorneys’ fees, reducing
Zisumbo’s fee request by 40% to $93,212, based primarily on his limited success in
this litigation.
DISCUSSION
I. The district court did not abuse its discretion in denying Zisumbo’s motion
for leave to file a second amended complaint.
Nearly two years after this litigation began and more than four months after
the scheduling order’s deadline for amending pleadings, Zisumbo sought to amend
his complaint a second time. Specifically, he sought to add a race discrimination
claim against ORMC and Rodebush under 42 U.S.C. § 1981 based on the same facts
underlying his Title VII race discrimination claims. He also sought to add three state-
law claims against ORMC based on information he discovered more than five months
before the deadline for amending pleadings. The district court denied Zisumbo’s
motion for leave to amend, and Zisumbo appeals. We review the district court’s
decision for abuse of discretion. Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir.
2009).
The parties dispute whether Rule 15 or Rule 16 of the Federal Rules of Civil
Procedure governs our consideration of this issue. Zisumbo urges application of Rule
15, which generally governs amendments to pleadings. ORMC, on the other hand,
8
argues that because Zisumbo’s amendment would have effectively amended the
scheduling order, Rule 16—which specifically governs amendments to scheduling
orders—applies instead.
As relevant here, Rule 15 allows a party to amend a pleading only with the
court’s leave, which the “court should freely give . . . when justice so requires.” Fed.
R. Civ. P. 15(a)(2). See Bylin, 568 F.3d at 1231; Minter v. Prime Equip. Co., 451
F.3d 1196, 1205 n.4 (10th Cir. 2006). Rule 16(b)(4) is arguably more stringent than
Rule 15, permitting scheduling order amendments “only for good cause and with the
judge’s consent . . . .” See Bylin, 568 F.3d at 1231. But we need not resolve this
dispute because Zisumbo failed to provide any justification for his delay, and
therefore he can’t satisfy even Rule 15’s more lenient standard.
The district court denied Zisumbo’s motion to amend his complaint because
Zisumbo failed to provide an adequate explanation for the motion’s untimeliness.
While lateness itself does not justify denying an amendment, “denial of leave to
amend is appropriate ‘when the party filing the motion has no adequate explanation
for the delay.’” Minter, 451 F.3d at 1205, 1206 (quoting Frank v. U.S. West, Inc., 3
F.3d 1357, 1365-66 (10th Cir. 1993)); see also Smith v. Aztec Well Servicing Co., 462
F.3d 1274, 1285 (10th Cir. 2006) (holding that undue delay is an appropriate
justification for denying leave to amend under Rule 15).
Zisumbo offers two primary explanations for his delay. First, he argues his
lawyer did not realize until January 2012 that Zisumbo could assert a § 1981 claim,
and that his lawyer’s lack of knowledge justifies his delay in seeking to amend. But
9
we have previously held that such belated realizations do not justify granting an
untimely motion to add new claims. See Woolsey v. Marion Labs., Inc., 934 F.2d
1452, 1462 (10th Cir. 1991). Moreover, Zisumbo admits he possessed all of the facts
necessary to assert his § 1981 claim when he filed his first amended complaint. See
Frank, 3 F.3d at 1365 (listing “failure to cure deficiencies by amendments previously
allowed” as a permissible justification for denying leave to amend).
Second, Zisumbo contends he first obtained information to support the state-
law claims during discovery. But the record shows that Zisumbo possessed all of the
facts necessary to assert his state-law claims by April 2011—five months before the
deadline for amending his complaint. Given the lack of any adequate explanation for
Zisumbo’s delay in seeking permission to amend his complaint, we conclude the
district court did not abuse its discretion in denying Zisumbo’s motion for leave to
file a second amended complaint. See Woolsey, 934 F.2d at 1462 (finding no abuse of
discretion on similar facts).
II. The district court did not err in granting ORMC’s motion for summary
judgment on Zisumbo’s good faith and fair dealing claim.
In his good faith and fair dealing claim, Zisumbo alleged that ORMC’s written
code of conduct created an implied contract that gave rise to a duty of good faith and
fair dealing, which ORMC breached when it terminated his employment. ORMC
moved for summary judgment on this claim, arguing it owed Zisumbo no duty of
good faith and fair dealing because it disclaimed any contractual relationship with
Zisumbo.
10
The district court granted summary judgment to ORMC after recharacterizing
Zisumbo’s claim as one for breach of contract. Specifically, the court reasoned that
Zisumbo’s response to ORMC’s summary judgment motion suggested he was
claiming that ORMC violated only those duties arising under the express terms of its
code, rather than some implied duty arising outside its four corners. See United States
v. Basin Elec. Power Co-op., 248 F.3d 781, 796 (8th Cir. 2001) (explaining implied
good-faith covenant has “nothing to do with the enforcement of terms actually
negotiated”) (internal quotation marks omitted). The district court then concluded
that because Zisumbo had not pled a breach of contract claim, he could not rely on an
alleged breach of contract to defeat ORMC’s motion for summary judgment. The
district court later denied Zisumbo’s motion to reconsider and his motion for leave to
amend his complaint to add a breach of contract claim. Zisumbo appeals all three
decisions.
We review the district court’s grant of summary judgment de novo, applying
the same standard the district court applied and viewing the evidence in the light
most favorable to the non-moving party, here Zisumbo. McBride v. Peak Wellness
Ctr., Inc., 688 F.3d 698, 703 (10th Cir. 2012). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review for abuse of
discretion the district court’s decisions denying Zisumbo’s motion to reconsider and
his motion for leave to amend. See Bylin, 568 F.3d at 1229; Sorbo v. United Parcel
Serv., 432 F.3d 1169, 1177 (10th Cir. 2005). Although we decline to follow the
11
district court’s rationale, we affirm its conclusion because Zisumbo failed to show he
had a contractual relationship with ORMC that could have given rise to a duty of
good faith and fair dealing.
Under Utah law, which governs Zisumbo’s good faith and fair dealing claim,
an employee like Zisumbo who is “hired for an indefinite period is presumed to be an
employee at will who can be terminated for any reason whatsoever so long as the
termination does not violate a state or federal statute.” Johnson v. Morton Thiokol,
Inc., 818 P.2d 997, 1000 (Utah 1991). An employee may overcome this presumption
by showing he had an express or implied employment contract modifying his at-will
status. See id. at 1000-01; see also Tomlinson v. NCR Corp., 345 P.3d 523, 527, 531
reh’g denied (Feb. 11, 2015) (noting Utah Supreme Court has “consistently rejected
the notion of a free-standing implied covenant of good faith and fair dealing in the
absence of a contract”). Zisumbo does not contend he had an express contract with
ORMC. Instead, he argues only that ORMC assumed binding obligations to its
employees by implied contract based on promises made in ORMC’s code of conduct.
Whether an implied contract exists “turns on the objective manifestations of
the parties’ intent,” which include “announced personnel policies” and “employment
manuals.” Tomlinson, 345 P.3d at 527 (internal quotation marks omitted); accord
Morton Thiokol, 818 P.2d at 1000. Indeed, the Utah Supreme Court has consistently
held that “an employer’s internally adopted policies and procedures concerning
discharge can be sufficient evidence to rebut the presumption of at-will employment
and can, in effect, become part of the contractual relationship between the employer
12
and the employee.” Tomlinson, 345 P.3d at 527, 531. But a “‘clear and conspicuous
disclaimer, as a matter of law, prevents employee manuals or other like material from
being considered as implied-in-fact contract terms.’” Id. at 529 (quoting Morton
Thiokol, 818 P.2d at 1003); see also Cabaness v. Thomas, 232 P.3d 486, 503 (Utah
2010) (noting that court retains power to decide whether, as a matter of law, a
reasonable jury could find that an implied contract exists). The “employee has the
burden of establishing the existence of an implied-in-fact contract provision” by
showing that the parties actually agreed to be bound by the employee manual’s terms.
Morton Thiokol, 818 P.2d at 1001.
In his opening brief, Zisumbo fails to identify any specific provisions of
ORMC’s code of conduct that might create an enforceable obligation to ORMC’s
employees. On this basis alone, we could reject Zisumbo’s challenge to the district
court’s resolution of his good faith and fair dealing claim. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that failure to cite legal authorities
and portions of record on which appellant relies may result in forfeiture of argument
on appeal).
Zisumbo’s reply brief does point to a few code provisions that he asserts create
enforceable obligations for ORMC. But even assuming the code contains provisions
that could operate as contract provisions, Zisumbo’s employment application and
employee handbook acknowledgment card contained clear and conspicuous
disclaimers that disclaim any contractual relationship that might otherwise have
arisen.
13
Zisumbo’s application stated that “any employee handbook . . . [would] not
constitute an employment contract, but [would] be merely a gratuitous statement of
facility policies.” App. for Empl., Doc. 42-1 at 50 (capitalization and emphasis
omitted). Zisumbo concedes this provision disclaimed any contractual relationship,
but he contends it doesn’t apply here because the code of conduct on which he relies
is not an “employee handbook.” But Zisumbo’s argument ignores additional language
in the application clarifying that an employee’s at-will status could “only be altered
by a written contract of employment” that was “specific as to all material terms and
. . . signed by [the employee] and [ORMC’s] Administrator.” Id. Notably, the
handbook acknowledgment card that Zisumbo signed repeated this limitation.
Zisumbo does not argue that he and ORMC ever entered a written contract that would
fall within this strict exception to employment-at-will.
Finally, although Zisumbo is correct in asserting that he signed ORMC’s
employment application and handbook acknowledgment card before receiving the
code of conduct, Utah courts have indicated that disclaimers apply with equal force
to future alleged agreements. See Morton Thiokol, 818 P.2d at 1003-04 (holding that
in light of employee handbook’s disclaimer, subsequent alleged agreements were
“insufficient to raise a triable issue concerning a subsequent modification”).
Therefore, we affirm the district court’s grant of summary judgment in favor of
ORMC on Zisumbo’s good faith and fair dealing claim. Tomlinson, 345 P.3d at 530;
accord Morton Thiokol, 818 P.2d at 1003; Johnson v. City of Murray, 909 F. Supp.
2d 1265, 1296-97 (D. Utah 2012), aff’d 544 F. App’x 801, 807 (10th Cir. 2013)
14
(unpublished). Having done so, we further conclude the district court did not abuse
its discretion in denying Zisumbo’s motion to reconsider and motion for leave to
amend.
III. The district court did not err in denying ORMC’s renewed motion for
judgment as a matter of law on Zisumbo’s retaliation claim.
In its cross-appeal, ORMC contends the district court erred in denying its
renewed, post-trial motion for judgment as a matter of law on Zisumbo’s retaliation
claim. It contends that no reasonable jury could have found a causal connection
between Zisumbo’s complaints of discrimination and ORMC firing him, or found
that ORMC’s reason for firing Zisumbo was false. We review the district court’s
decision de novo. McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1136 (10th
Cir. 2006).
Judgment as a matter of law “is warranted only if the evidence points but one
way and is susceptible to no reasonable inferences supporting the party opposing the
motion. We do not weigh the evidence, pass on the credibility of the witnesses, or
substitute our conclusions for those of the jury.” Id. at 1136 (internal quotation marks
omitted); see also Fed. R. Civ. P. 50(a). In other words, judgment as a matter of law
is appropriate if, construing the evidence and all inferences in the light most
favorable to the nonmoving party, “the court is certain the evidence conclusively
favors [the moving] party such that” no reasonable jury could “arrive at a contrary
verdict.” Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996) (internal quotation
marks omitted).
15
To prevail on a retaliatory discharge claim, a plaintiff must establish that the
decision to terminate him resulted from retaliatory animus. See Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (holding that Title VII retaliation
plaintiff must show “but-for” causation); Baty v. Willamette Indus., Inc., 172 F.3d
1232, 1243 (10th Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002). Following a full trial on the merits, the
question is whether the plaintiff presented sufficient evidence for the jury to find that
adverse employment action was taken against him because he engaged in protected
activity. Baty, 172 F.3d at 1243; see also 42 U.S.C. § 2000e-3(a). The plaintiff can
ordinarily meet this burden “through the combination of a prima facie case and the
presentation of ‘sufficient evidence to find that the employer’s asserted justification
is false.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir. 2000)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
In a case for retaliation under Title VII, the plaintiff’s prima facie case consists
of showing (1) he engaged in protected opposition to discrimination; (2) he suffered
an adverse action that a reasonable employee would have found material; and
(3) there is a causal nexus between his opposition and the employer’s adverse action.
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir. 2007); see also
Nassar, 133 S. Ct. at 2533. Only the causal connection element is at issue here.
A. Causal Connection
To establish a causal connection between his complaints of race discrimination
and his termination, Zisumbo must show (among other things) that the individuals or
16
individuals who decided to terminate his employment knew of his discrimination
complaints when deciding to terminate him. See Zokari v. Gates, 561 F.3d 1076,
1081 (10th Cir. 2009) (stating plaintiff must show that “individuals who took adverse
action against him knew of his protected opposition”); Petersen v. Utah Dep’t of
Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (noting that “employer’s action against
an employee cannot be because of that employee’s protected opposition unless the
employer knows the employee has engaged in protected opposition” (second
emphasis added)). Aside from ORMC’s asserted nondiscriminatory reason for firing
Zisumbo, which we discuss below, this is the only aspect of causation that ORMC
challenges. Specifically, ORMC contends that Bissenden alone made the decision to
terminate Zisumbo and that she did not know he had complained of discrimination.
Instead, ORMC contends Bissenden knew only that Zisumbo had complained to the
ORMC ethics line regarding unprofessional behavior. But we need not consider
whether Bissenden knew of Zisumbo’s complaints of race discrimination because a
reasonable jury could reject ORMC’s underlying premise that Bissenden alone
decided to terminate Zisumbo.
As ORMC suggests, the record does show that Bissenden testified she was the
“sole person” who decided to terminate Zisumbo’s employment and that Rodebush
and Taylor didn’t “have any part in the decision.” Trial Tr., Doc. 238, at 101. But
Bissenden also testified that generally she and “[t]he supervisor . . . make the
[termination] decision together.” Trial Tr., Doc. 235, at 48. Similarly, Rodebush
testified he had authority to fire his employees and typically would “run those
17
decisions by” human resources. Trial Tr., Doc. 236, at 100. Taylor also testified that
it was “common practice” at ORMC for department directors to hire and fire within
their departments. Trial Tr., Doc. 237, at 26.
In addition to the tension between Bissenden’s, Rodebush’s, and Taylor’s
testimony, we are swayed by the memo Bissenden prepared documenting the details
of their meeting with Zisumbo. The memo confirms, “Mr. Rodebush indicated to Mr.
Zisumbo that we had officially verified that the St. Mark’s letter was fraudulent and
that he was dismissed from employment . . . for presenting the document to us as
authentic.” Bissenden Memo, Doc. 162-6 (emphasis added).
We have no hesitancy in concluding that together, the testimony and the memo
would permit a reasonable jury to conclude that both Rodebush and Bissenden made
the decision to terminate Zisumbo’s employment. In so holding, we note that this is
not a situation, as ORMC contends, of allowing the jury to both disregard discredited
testimony and to rely on that testimony to reach a conclusion contrary to it. See Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984) (noting that
normally, “discredited testimony is not considered a sufficient basis for drawing a
contrary conclusion”). Nor is this a case of speculative “must-have” and “could-
have” assumptions. Rather, a reasonable jury could find that Rodebush, who had
authority to terminate Zisumbo’s employment, actually did so.
Having rejected the premise of ORMC’s argument—that Bissenden was the
sole decision-maker—the remainder of the causal connection inquiry is relatively
straightforward. ORMC does not dispute that Rodebush knew of Zisumbo’s
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complaints of race discrimination, nor does it respond to Zisumbo’s argument that if
Rodebush jointly made the decision to fire Zisumbo, a reasonable jury could have
found that a causal connection existed. Thus, we agree with the district court that,
drawing all reasonable inferences in Zisumbo’s favor, a reasonable jury could have
found that the decision-maker knew of Zisumbo’s complaints of race discrimination.
B. Pretext
ORMC also contends the district court erred in denying its renewed, post-trial
motion for judgment as a matter of law because no reasonable jury could have
concluded that ORMC’s stated reason for terminating Zisumbo’s employment—
providing fraudulent letters regarding previous employment—was false, i.e.,
pretextual. We disagree.
“A plaintiff may show pretext by demonstrating ‘such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.’” Anderson v. Coors Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997)). Mere conjecture that the employer’s explanation is pretext,
however, is insufficient—as a matter of law—to show pretext. See id. The focus of a
Title VII pretext analysis is on the decision-makers’ motivation. See Turner v. Pub.
Serv. Co. of Colo., 563 F.3d 1136, 1144 (10th Cir. 2009); see also Nassar, 133 S. Ct.
at 2533.
19
Here, the timing of Zisumbo’s termination supports an inference that ORMC
terminated his employment because he complained about discrimination. See
Anderson, 181 F.3d at 1179 (explaining that “retaliatory motive may be inferred
when an adverse action closely follows protected activity”). Specifically, Zisumbo
contends he complained about race discrimination to Rodebush, ORMC’s ethics line,
and the Utah Labor Commission in mid-September 2009. ORMC terminated his
employment less than a month later on October 8, 2009. Although evidence of
temporal proximity between the protected activity and the alleged adverse
employment action alone is insufficient to show pretext, it can support a finding of
pretext when combined with other evidence of pretext. Lobato v. N.M. Env’t Dep’t,
733 F.3d 1283, 1293 (10th Cir. 2013); Proctor v. United Parcel Serv., 502 F.3d 1200,
1213 (10th Cir. 2007). Zisumbo produced such evidence at trial.
For example, Zisumbo produced evidence demonstrating that ORMC did not
fully investigate his ethics line complaint and complaint of race discrimination.
Instead, that investigation quickly morphed into an investigation of Zisumbo’s past
actions and specifically focused on the letters Zisumbo had given Rodebush months
earlier. Although Rodebush had possessed the letters for several months, he claimed
he’d placed them in a desk drawer and never reviewed them until he showed them to
ORMC’s internal investigator, Taylor. Once the two men reviewed them together,
they immediately suspected the letters were fraudulent, and they involved ORMC’s
human resources director, Bissenden. Then, contrary to Bissenden’s usual procedure
for investigating an employee suspected of falsifying information, Bissenden neither
20
fully determined the accuracy of the information contained in the letters nor
investigated Zisumbo’s intent in submitting them. Instead, once Bissenden verified
that the St. Mark’s letter did not come from St. Mark’s, Rodebush and Bissenden
terminated Zisumbo’s employment.
Construing this evidence in the light most favorable to Zisumbo, a reasonable
jury certainly could have believed that Zisumbo’s abrupt termination—allegedly
based on fraudulent letters that his supervisor had held for months and following
closely on the heels of his complaints of race discrimination—was instead based on
retaliation for Zisumbo’s assertion of race discrimination. We thus affirm the district
court’s decision denying ORMC’s renewed motion for judgment as a matter of law
on Zisumbo’s retaliation claim.
IV. The district court did not err in denying Zisumbo’s request for a punitive
damages instruction.
Next, Zisumbo argues the district court erred by refusing to instruct the jury on
punitive damages. Prior to trial, Zisumbo submitted a proposed instruction regarding
punitive damages. The district court ultimately denied the request, finding Zisumbo had
presented no evidence “of the type of corporate negligence [or] malfeasance that would”
justify punitive damages. Trial Tr., Doc. 237, at 67. We review the district court’s
decision de novo. See Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262
(10th Cir. 1995).
A Title VII plaintiff is entitled to punitive damages if his employer engaged in
discriminatory practices “with malice or with reckless indifference to [his] federally
21
protected rights.” 42 U.S.C. § 1981a(b)(1). “Malice” and “reckless indifference” require
proof the employer acted “in the face of a perceived risk that its actions [would] violate
federal law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535-36 (1999).
Because “agency principles limit vicarious liability for punitive awards,” id. at
541, plaintiffs seeking punitive damages for a Title VII violation must overcome the
additional hurdle of “imput[ing] liability for punitive damages to” the employer, id. at
539. An employee may not hold his employer “vicariously liable for the discriminatory
employment decisions of managerial agents where the[] decisions [were] contrary to the
employer’s ‘good-faith efforts to comply with Title VII.’” Id. at 545 (quoting Kolstad v.
Am. Dental Ass’n, 139 F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting), vacated, 527
U.S. 526 (1999)).
Although “‘Kolstad provides us no definitive standard for determining what
constitutes good-faith compliance with’ Title VII,” we have held that Kolstad’s good-
faith-compliance standard requires an employer to at least (1) adopt anti-discrimination
policies, (2) make a good faith effort to educate its employees about these policies and
Title VII’s prohibitions, and (3) make good faith efforts to enforce an anti-discrimination
policy. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) (quoting
EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248 (10th Cir. 1999)); see also Kolstad,
527 U.S. at 545-46.
The focus of these inquiries is on the employer; Zisumbo must show that
ORMC—not just its managerial employees—failed to make good-faith efforts to comply
with Title VII. Harsco Corp. v. Renner, 475 F.3d 1179, 1189 (10th Cir. 2007). Because
22
ORMC “submitted substantial evidence showing that the company established
comprehensive polic[i]es and training procedures in an effort to comply with Title VII,”
Zisumbo faces an uphill battle. Harsco, 475 F.3d at 1189. In addition to annually training
its employees on its anti-discrimination policies, ORMC consistently investigated reports
of discrimination and incorporated into every manager’s or supervisor’s performance
evaluation their compliance with anti-discrimination policies.
Zisumbo concedes that ORMC adopted anti-discrimination policies, but he argues
there is no evidence that ORMC actually adhered to those policies. In support, he
contends that neither Taylor nor Bissenden adhered to ORMC’s policies with respect to
their investigation of his allegations of race discrimination despite the fact that Taylor
received training on those policies and Bissenden wrote them. But we have rejected a
similar argument, noting the inherent flaw in its rationale: “If failure of supervisors to
comply with company policy were sufficient evidence to prove the lack of a good-faith
effort to train, the Kolstad defense would be effectively eliminated.” Id. at 1189.
Moreover, although a reasonable jury could have found Taylor’s and Bissenden’s
investigations in this case to be lacking, those failures don’t establish a broader failure by
ORMC to enforce anti-discrimination policies.
In suggesting he was entitled to a punitive damage instruction, Zisumbo relies on a
trio of cases, each of which is distinguishable: McInnis v. Fairfield Communities, Inc.,
458 F.3d 1129, 1139 (10th Cir. 2006), Cadena v. Pacesetter Corp., 224 F.3d 1203, 1212
(10th Cir. 2000), and Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1186-87 (10th
Cir. 1999).
23
Unlike the plaintiff-employee in McInnis, who repeatedly complained to upper-
level management over a year-long period, Zisumbo complained only twice: once to his
supervisor (Rodebush), and once to the ethics line. See 458 F.3d at 1139. And unlike the
employer in Cadena, whose sexual harassment training was so lacking that a jury could
find that the employer failed to educate its employees about its non-discrimination
policies, ORMC presented more than sufficient evidence of its efforts to train its
employees regarding its anti-discrimination policies. See 224 F.3d at 1212. Further, the
facts here are unlike those before us in Knowlton, where the plaintiff proved pervasive
sex discrimination that the company president knew about and permitted. See 189 F.3d at
1186-87.
Instead, the facts of this case more closely resemble those in Harsco, 475 F.3d
at 1189-90, where this court upheld the district court’s rejection of the plaintiff’s
request for a punitive damages instruction because she proved only that her
supervisors failed to comply with the company’s anti-discrimination policies. Here,
although Taylor and Bissenden did not conduct their investigations consistently with
ORMC’s policies, their shortcomings cannot be imputed to ORMC without more.
Indeed, in McInnis we noted that if a retaliating supervisor’s knowledge of retaliation
was automatically imputed to the employer, it could spell the end of the Kolstad
defense. McInnis, 458 F.3d at 1139 n.7. Thus, we agree with the district court’s
decision that the evidence presented at trial did not, as a matter of law, support a
finding that ORMC should be subject to punitive damages.
24
V. The district court did not abuse its discretion in determining Zisumbo’s back
pay award, or in denying Zisumbo’s request for front pay and/or
reinstatement based on Zisumbo’s post-employment assault conviction.
After prevailing on his retaliation claim, Zisumbo sought Title VII remedies in the
form of approximately $400,000 in back pay from his termination date, October 8, 2009,
through September 1, 2013. He also sought reinstatement, or, alternatively, front pay for
three years. But the district court substantially modified this request based on Zisumbo’s
September 15, 2010, conviction for misdemeanor assault of his daughter, which the court
found constituted “egregious post-termination misconduct sufficient to curtail back pay
and bar reinstatement or front pay.” Mem. & Order, Doc. 191 at 21. The court thus
limited Zisumbo’s back pay to approximately $65,000, covering the period between
Zisumbo’s termination on October 8, 2009, and his conviction on September 15, 2010.
Zisumbo appeals, arguing the district court abused its discretion by limiting his
back pay and denying him reinstatement and front pay based on post-termination
misconduct. ORMC cross-appeals. It argues the district court abused its discretion by
refusing to limit Zisumbo’s back pay to the single day that elapsed between
Zisumbo’s termination on October 8, 2009, and ORMC’s acquisition of new
information on October 9, 2009, confirming its suspicions about the inauthenticity of
the McKay Dee letter. And on the same date, ORMC alleges, additional misconduct
regarding the St. Mark’s letter occurred. We review the district court’s rulings on
back pay, reinstatement, and front pay for abuse of discretion. Bartee v. Michelin N.
Am., Inc., 374 F.3d 906, 911 (10th Cir. 2004); Abuan v. Level 3 Commc’ns, Inc., 353
F.3d 1158, 1176 (10th Cir. 2003).
25
A. Back Pay after October 9, 2009
District courts possess considerable discretion to devise appropriate remedies
for Title VII violations. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-22
(1975); Estate of Pitre v. W. Elec. Co., 975 F.2d 700, 704 (10th Cir. 1992). But the
exercise of this discretion must be tied to Title VII’s twin purposes of “provid[ing] an
incentive to employers to avoid discriminatory practices” and “‘making persons
whole for injuries suffered on account of unlawful employment discrimination.’”
Estate of Pitre, 975 F.2d at 704 (quoting Albemarle, 422 U.S. at 418).
Typically, back pay is calculated from the date of wrongful termination to the
end of trial. Wulf v. City of Wichita, 883 F.2d 842, 871 n.37 (10th Cir. 1989). But an
employee’s back pay may be limited. For example, if an employer learns that the
employee—while employed—committed “‘wrongdoing . . . of such severity that the
employee in fact would have been terminated on those grounds alone if the employer
had known of it at the time of the discharge,’ the employee may . . . be denied
backpay to which [he] would otherwise be entitled.” Medlock v. Ortho Biotech, Inc.,
164 F.3d 545, 554 (10th Cir. 1999) (quoting McKennon v. Nashville Banner Pub.
Co., 513 U.S. 352, 362-63 (1995)). Implicit in this rule is that at the time the
employee was fired the employer was not aware of the information that it later claims
would have provided an independent and legitimate reason for termination. See Ricky
v. Mapco, Inc., 50 F.3d 874, 875-76 (10th Cir. 1995) (acknowledging that employer
must show it was unaware of allegations of misconduct when employee was
terminated).
26
ORMC argues that on October 9, 2009—the day after it terminated Zisumbo’s
employment—it received two pieces of information that would have provided
legitimate justifications for its decision to terminate Zisumbo: (1) confirmation the
McKay Dee letter did not come from that hospital; and (2) a phone call from
Zisumbo’s lawyer stating “they” had validated the St. Mark’s letter and that “Ashley”
at St. Mark’s wrote it, which according to Bissenden turned out to be false.
1. McKay Dee letter
At the time ORMC terminated Zisumbo’s employment, Bissenden had not yet
confirmed that the McKay Dee letter was fraudulent. But both Rodebush and
Bissenden had inspected the letter and concluded it was suspicious, and based on that
suspicion, they discussed it with Zisumbo before terminating his employment. The
following day, Bissenden continued her investigation and confirmed that McKay Dee
had not issued the letter. ORMC contends that Zisumbo’s back pay should be limited
to one day based on this confirmation of the letter’s inauthenticity.
But the district court rejected this theory, finding that ORMC relied on the
apparent inauthenticity of the McKay Dee letter as a reason for terminating
Zisumbo’s employment. The record supports the district court’s finding. For instance,
although Bissenden denied that her suspicions about the McKay Dee letter factored
into Zisumbo’s termination, Rodebush stated that the letters generally raised
concerns about Zisumbo’s honesty and that all three letters were discussed in the
meeting. And Taylor testified that Zisumbo was “[t]erminated for falsifying some
documents.” Trial Tr., Doc. 236, at 175. Under these circumstances, Bissenden’s
27
confirmation of the fraudulent nature of the McKay Dee letter was not after-acquired
evidence limiting Zisumbo’s entitlement to back pay, and the district court did not
abuse its discretion in so finding. See Ricky, 50 F.3d at 875-76.
2. St. Mark’s letter
ORMC contends it learned of additional evidence of misconduct when, on the day
following Zisumbo’s termination, October 9, 2009, Bissenden received a call from
Zisumbo’s attorney, who advised that “they” had confirmed the authenticity of the St.
Mark’s letter and that “Ashley” at St. Mark’s prepared it. Bissenden immediately
contacted the human resource department at St. Mark’s and spoke with Ashley Jorgensen,
who verified that she did not write the letter because she was on maternity leave on the
date of the letter.
The district court found this evidence did not constitute after-acquired evidence
limiting back pay for several reasons. Primarily, the district court concluded that even if
the information provided by Ashley at St. Mark’s revealed any additional deception, that
deception could not be attributed to Zisumbo. We agree and conclude the district court
did not abuse its discretion in making this finding.
B. Front Pay, Reinstatement, and Back Pay After September 15, 2010
The district court curtailed Zisumbo’s back pay and denied his requests for front
pay and reinstatement based on Zisumbo’s act of pleading guilty, on September 15, 2010,
to assaulting his daughter. Zisumbo argues this was error.
Front pay is “money awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement” to make the plaintiff whole.
28
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001); accord McInnis,
458 F.3d at 1145. “‘Because determining a front pay award requires the district court to
predict future events and consider many complicated and interlocking factors, we review
such awards with considerable deference, reversing only for an abuse of discretion.’”
Abuan, 353 F.3d at 1177 (quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1458 (10th
Cir. 1997), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina
Internet Ltd., 661 F.3d 495 (10th Cir. 2011)).
Like back pay, front pay and reinstatement may also be limited based on an
employee’s actions: “It would be both inequitable and pointless to order the reinstatement
of someone the employer would have terminated, and will terminate, in any event and
upon lawful grounds.” McKennon, 513 U.S. at 362. Although McKennon dealt only with
“after-acquired evidence of pre-termination wrongdoing,” we have suggested that its
“logic . . . may permit certain limitations on relief based on post-termination conduct”
too. Medlock, 164 F.3d at 555 (citing Christine Neylon O’Brien, The Law of After-
Acquired Evidence in Employment Discrimination Cases: Clarification of the Employer's
Burden, Remedial Guidance, and the Enigma of Post-Termination Misconduct, 65
UMKC L. Rev. 159, 174 (1996) approvingly as “concluding that egregious post-
termination misconduct should ordinarily bar reinstatement and curtail backpay”).
Federal courts disagree regarding whether post-termination conduct can ever
curtail an employee’s right to front pay, reinstatement, or back pay. See Jones v.
Nissan N. Am., Inc., 438 F. App’x 388, 406-07 (6th Cir. 2011) (unpublished)
(compiling cases). But we need not address that broader legal question here because
29
Zisumbo concedes on appeal that he “does not argue that back pay, front pay, and
reinstatement may never be limited by evidence of post-termination misconduct.”
Zisumbo Resp./Reply Br. at 31 (internal quotation marks omitted).
Instead, Zisumbo asserts two narrower arguments: (1) that his post-termination
misdemeanor conviction should not limit his right to front pay, reinstatement, or back
pay because ORMC did not show that it would have terminated his employment
because of the misdemeanor, and (2) the misdemeanor conviction should not limit his
back pay because the misdemeanor directly resulted from his termination.
1. Termination for misdemeanor
First, Zisumbo argues that his post-termination misdemeanor conviction
should not limit his right to front pay, reinstatement, or back pay because ORMC did
not show that it would have terminated Zisumbo for the misdemeanor. Zisumbo
reasons that if he had remained employed by ORMC, the hospital would not have
known about his misdemeanor conviction and therefore would not have fired him for
it. But under McKennon, “[o]nce an employer learns about employee wrongdoing
that would lead to a legitimate discharge, we cannot require the employer to ignore
the information, even if it is acquired during the course of discovery in a suit against
the employer and even if the information might have gone undiscovered absent the
suit.” McKennon, 513 U.S. at 362.
Alternatively, Zisumbo argues that even if we assume ORMC would have
learned of the misdemeanor conviction had he remained employed there, ORMC
failed to prove that it would have terminated him for that conviction. In support of
30
this theory, Zisumbo points out that the record contains no evidence of ORMC
terminating specific employees for misdemeanor convictions.
While we agree that the record contains no such specific examples, it contains
ample evidence from which the district court could reasonably conclude that the
hospital would terminate employees for misdemeanor convictions. For example, the
evidence showed that ORMC conducts background checks on all employment
applicants and has a written policy providing that employment applicants, including
rehires, may be denied employment based on a felony or misdemeanor conviction.
Importantly, the purpose of the background checks is to screen out applicants who
may pose a safety risk to ORMC’s patients. With only one exception—an applicant
with a ten-year-old conviction for retail theft that the applicant disclosed—ORMC
has disqualified applicants with a criminal conviction on their records. And although
the policy does not address current employees, Bissenden testified that ORMC holds
current employees to the same standards as employment applicants. Under these
circumstances, we hold that the district court did not abuse its discretion in
concluding that ORMC would have terminated Zisumbo’s employment for the
misdemeanor conviction.
2. Misdemeanor resulted from termination
Second, Zisumbo argues the misdemeanor conviction should not count against
him because it resulted directly from his termination. See Medlock, 164 F.3d at 555.
In support, Zisumbo points to his testimony that losing his job caused him mental
distress, which in turn led to his treatment by a psychiatrist who prescribed the
31
Ambien he took the night of the assault. And, according to Zisumbo, an adverse
reaction to Ambien caused him to assault his daughter. Zisumbo speculates that had
he not lost his job at ORMC, the chain of events that led him to assault his daughter
would never have occurred.
Critically, Zisumbo also testified that he began receiving treatment from a
psychiatrist and taking Ambien before ORMC terminated his employment, thus
undermining the causal connection between his termination and the assault. In that
regard, the facts here are distinguishable from those in Medlock.
In Medlock, the plaintiff “touched and cursed at Defendant’s counsel” at a
post-termination unemployment compensation benefits hearing. Id. (internal
quotation marks omitted). On appeal, the defendant argued the district court erred in
refusing to instruct the jury that it could limit the plaintiff’s damages if the defendant
could show that the plaintiff’s conduct at the hearing was so severe that the defendant
would have terminated the plaintiff on that basis alone. We rejected the defendant’s
argument, pointing out that “[t]he alleged misconduct . . . occurred at a hearing
occasioned by plaintiff’s termination,” and thus arose as a “direct result” of the
retaliatory termination. Id.
Here, Zisumbo insists that his termination caused him to see a psychiatrist who
prescribed Ambien, which in turn caused him to assault his daughter. We need not
decide, however, whether such a string of events could ever be the direct result of a
termination because Zisumbo admits he began seeing a psychiatrist and taking
Ambien before ORMC terminated his employment. Even assuming his Ambien use
32
ultimately caused the assault, neither the assault nor the Ambien use were
“occasioned by” or the “direct result” of the termination.
Viewing the record as a whole, we conclude the district court did not abuse its
discretion in concluding that ORMC would have terminated Zisumbo for his
misdemeanor conviction. Nor did the district court abuse its discretion in finding that
Zisumbo’s misdemeanor assault conviction did not directly result from his
termination. We therefore affirm the district court’s decision limiting Zisumbo’s back
pay to the period between his termination and his assault conviction.
C. Back Pay Calculation
Finally, Zisumbo argues the district court abused its discretion in calculating
his back pay award. Zisumbo asked the district court to calculate his weekly wages
based on his W-2, and then multiply that by the number of weeks of back pay. But
the district court declined to do so based on testimony that Zisumbo’s W-2 might
have reflected a payout of all paid time off accrued by Zisumbo at the time of his
termination. Instead, the district court based Zisumbo’s back pay award on his hourly
wage and ORMC’s detailed calculations. We conclude the district court did not abuse
its discretion by calculating Zisumbo’s back pay based on his actual hourly rate.1
VI. The district court did not abuse its discretion in limiting Zisumbo’s
attorneys’ fees based on his limited success.
1
Because we affirm the district court’s limitation of Zisumbo’s back pay based on
his post-termination conduct, we need not reach ORMC’s argument that Zisumbo failed
to mitigate his damages.
33
Under 42 U.S.C. § 2000e-5(k), a district court may award reasonable
attorneys’ fees to the prevailing party in a Title VII case. It may also reduce a
prevailing party’s award based on redundant, excessive, or improperly billed hours,
or based on the attorneys’ limited success in the case. Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). In determining whether a fee award is reasonable, courts must
consider both whether the plaintiff’s successful and unsuccessful claims were related
and whether the plaintiff’s overall level of success justifies a fee award based on the
hours expended by plaintiff's counsel. Flitton v. Primary Residential Mortg., Inc.,
614 F.3d 1173, 1177 (10th Cir. 2010). “Because the district court ‘is in a better
position than an appellate court to determine the amount of effort expended and the
value of the attorney’s services,’ we review an attorney’s fee award for abuse of
discretion.” Flitton, Inc., 614 F.3d at 1176 (quoting Starrett v. Wadley, 876 F.2d 808,
825 (10th Cir. 1989)).
The parties agreed that the lodestar—the total number of hours reasonably
expended multiplied by a reasonable hourly rate—equaled $162,228.50. Robinson v.
City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The only question on appeal
is whether the district court abused its discretion in reducing the lodestar based on
Zisumbo’s lack of success on certain claims. Specifically, the district court reduced
the lodestar by three discrete amounts: (1) $2,750 expended on Zisumbo’s
unsuccessful motion to stay the proceedings while he pursued his first appeal in this
case; (2) $4,125 spent on Zisumbo’s unsuccessful motion to reconsider the district
court’s grant of summary judgment on his good faith and fair dealing claim; and (3)
34
40% of the requested lodestar (or $64,891.40) based on Zisumbo’s lack of success on
his discrimination and good faith and fair dealing claims.
The district court denied attorneys’ fees for the motion to stay because the
motion was unsuccessful and unrelated to Zisumbo’s retaliation claim. Zisumbo filed
the motion for stay to buy time while he appealed to this court from the dismissal of
his second lawsuit, which alleged § 1981 and state-law claims that the district court
refused to permit him to add to his complaint in this case. We characterized
Zisumbo’s attempt to bring the new claims in a second suit as an “evasive claims-
splitting maneuver” and noted it was not the “equitable and legally prescribed route
for seeking to” add claims to this suit. Zisumbo v. Ogden Reg’l Med. Ctr., 536 F.
App’x 832, 833 (10th Cir. 2013) (unpublished). Under these circumstances, we hold
the district court did not abuse its discretion in denying Zisumbo attorneys’ fees
related to his motion to stay the district court proceedings while he pursued this
litigation maneuver.
Nor did the district court abuse its discretion by denying attorneys’ fees for
Zisumbo’s motion to reconsider in which Zisumbo simply restated arguments the
district court had already rejected on summary judgment. The motion was redundant
and an inappropriate method of seeking relief from the district court’s order. See
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Finally, the district court reduced the lodestar amount by 40% because
Zisumbo succeeded only on his retaliation claim. His discrimination claim, including
at least four separate race-discrimination theories, and his good faith and fair dealing
35
claims all failed. The district court also considered the time and money spent
litigating Zisumbo’s two untimely motions for leave to amend his complaint.
District courts possess broad discretion in setting an attorneys’ fee award.
Flitton, 614 F.3d at 1176. While “[t]here is no precise rule or formula for making
these determinations,” Hensley, 461 U.S. at 436, “‘[t]he record ought to assure us that
the district court did not “eyeball” the fee request and cut it down by an arbitrary
percentage,’” Robinson, 160 F.3d at 1281 (quoting People Who Care v. Rockford Bd.
of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996)). See also Hensley,
461 U.S. at 436-37, 440 (noting that a district court “may simply reduce the award to
account for the limited success” but must provide concise and clear explanation of its
reasons for fee award; emphasizing reduced fee award is appropriate if relief is
limited in comparison to the scope of the litigation as a whole).
Here, the district court’s reasons for reducing Zisumbo’s attorneys’ fee award
by 40%—Zisumbo’s limited success overall and the generally haphazard manner in
which his counsel litigated this case—were both appropriate and supported by the
record. We find no abuse of discretion in the district court’s attorneys’ fee award.
CONCLUSION
For the reasons stated above, we affirm.
36
Zisumbo v. Ogden Regional Medical Center
Court: Court of Appeals for the Tenth Circuit
Date filed: 2015-09-04
Citations: 801 F.3d 1185
Copy CitationsCombined Opinion