Plump v. Government Employees Insurance Co.
No. 24-3091. 12/16/2025. D.Kan. Judge Murphy. Employment Discrimination—Retaliation—Family and Medical Leave Act—Americans With Disabilities Act—42 USC § 1981—Civil Rights Act—Pretext—Summary Judgment.
December 16, 2025
Plump, a Black male, worked for Government Employees Insurance Company (GEICO) as a sales representative in Kansas. GEICO’s sales representatives sell insurance to customers located throughout the United States, so they are required to obtain and maintain licenses from various states’ insurance departments. At times relevant to this case, GEICO’s sales representatives were expected to obtain and maintain a New York license, and GEICO told Plump that having a New York insurance license was important to his role as a sales representative. Plump applied for a New York license, but New York rejected his application. Plump never informed the Kansas City licensing team of the rejection, and by the time that team discovered Plump’s application rejection, the appeal time frame for an extension had passed. GEICO management met with Plump to tell him that he could not remain in his sales position without a New York license. GEICO then audited the sales department’s calls, which revealed Plump’s licensing issues as well as his having a high call avoidance rate. Plump subsequently interviewed for a GEICO service department position, but he did not get that job. In December 2021, Plump filed a complaint with GEICO’s human resources department and asked about Family and Medical Leave Act (FMLA) leave. The next day, Plump messaged his supervisor and informed her that he was going to check into a hospital, would be out sick, and was in the process of filing for FMLA leave. Plump never checked into the hospital on that date and did not report to work for the next 42 days. Nevertheless, GEICO approved Plump retroactively for intermittent FMLA in January 2022. In the meantime, GEICO investigated Plump’s human resources complaint, which resulted in a decision to terminate Plump because he failed to obtain his New York license, failed to inform his supervisor that New York rejected his license, and failed to appeal the New York licensing decision within a timely manner. When a GEICO manager attempted to call Plump about the termination, Plump did not answer his phone but instead instructed his emergency contact to tell the manager that he was unavailable because he was in the hospital for an extended period. But Plump never checked into a hospital. Unable to reach Plump by phone, GEICO sent him a letter the following day informing him that his employment was terminated.
Plump sued GEICO alleging (1) retaliation in violation of the FMLA and the Americans with Disabilities Act (ADAAA), and (2) race discrimination in violation of 42 USC § 1981 and Title VII of the Civil Rights Act of 1964. GEICO moved for summary judgment on Plump’s discrimination claims, arguing that Plump failed to produce sufficient evidence to create a fact question as to his prima facie case because (1) his lack of a New York license made him unqualified for the sales position, and (2) the lack of evidence of race-based comments or differently treated comparators meant the circumstances surrounding Plump’s termination did not give rise to an inference of discrimination. Alternatively, GEICO contended it stated a legitimate nondiscriminatory reason for Plump’s termination in his failure to obtain a New York license, and Plump failed to come forward with sufficient evidence of pretext to create a genuine issue of material fact. In moving for summary judgment on Plump’s retaliation claims, GEICO asserted Plump failed to produce sufficient evidence of a causal connection between any activity protected by the ADAAA or FMLA and his termination. The district court applied the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), concluding that Plump’s Title VII and § 1981 claims failed because he did not show sufficient evidence to support a prima facie case of race discrimination, and Plump’s FMLA and ADA retaliation claims failed because Plump did not provide sufficient evidence to allow a reasonable juror to find that GEICO’s stated nondiscriminatory reason for the termination was pretextual. The district court granted summary judgment for GEICO.
On appeal, Plump asserted that the district court erred in granting summary judgment for GEICO on the race discrimination claim. He maintained that Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1229 (10th Cir. 2000), provides that the termination of a qualified employee belonging to a protected class raises an inference of discrimination where, as here, the employee’s position remains open. The Tenth Circuit agreed with Plump that, pursuant to Kendrick, an inference of discrimination arose from the fact that his position remained open following his termination. The district court thus erred in concluding Plump failed to make a prima facie case of race discrimination. But this error is harmless because (1) the district court’s ruling that there was insufficient evidence of pretext to support Plump’s FMLA and ADAAA retaliation claims applies equally to his Title VII and § 1981 discrimination claims, and (2) the district court correctly ruled that Plump failed to create a genuine issue of fact as to pretext.
Plump also argued that the district court erred in concluding he did not produce sufficient evidence of pretext to send the issue to the jury. Plump maintained that a reasonable jury could find pretext from (1) GEICO’s “purporting to require a New York license,” (2) GEICO’s “shifting rationales for termination,” (3) GEICO’s “unfair and inadequate investigation,” and (4) the temporal proximity between Plump’s FMLA leave and his termination. However, Plump’s first argument is wholly inconsistent with the factual stipulations in the pretrial order, so no reasonable jury could conclude that GEICO did not honestly believe Plump’s failure to obtain a New York license made him unsuitable for the sales position. Second, it is unclear that GEICO’s pretermination audit of Plump’s job performance amounted to shifting rationales. Third, there is no record evidence from which a jury could reasonably conclude GEICO’s investigation was inadequate or unfair. Lastly, in analyzing pretext, temporal proximity by itself is insufficient to raise a genuine issue of material fact concerning pretext.
The summary judgment was affirmed.