UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANGELA SIMON, 

 Plaintiff - Appellant, 

v. 

CITY AND COUNTY OF DENVER, 

 Defendant - Appellee. 

No. 18-1310 

(D.C. No. 1:16-CV-03116-RPM) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges. 

_________________________________ 

Angela Simon appeals from the district court’s grant of summary judgment to 

her former employer, the City and County of Denver, on her claims under the Family 

and Medical Leave Act (FMLA), 29 U.S.C. § 2615(a)(1) and (a)(2). Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 24, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

Simon was a Denver police officer, working the overnight shift from 7 p.m. to 

7 a.m. In May 2014, she learned her sister would be getting married in the Azores 

Islands, Portugal, on June 7, 2014. Her disabled mother, who lived in Illinois and 

needed assistance, wanted to travel to the wedding. Simon sought leave from 

June 1-14 to travel with her mother. Her commander, Antonio Lopez, approved her 

to be out from June 3-14. But Simon says she heard her lieutenant, Kevin Edling, tell 

her that she was approved to be out from June 1-13. 

The plan was that Simon’s mother would travel from Chicago to Boston, 

where Simon would meet her, and the two then would travel to the Azores together. 

On the morning of May 12, Simon bought plane tickets from Boston to the Azores 

for the evening of June 1. Later on May 12, Edling made it clear to her that she was 

expected to be at work on June 1 and 2. That night, she had conversations with her 

sergeant, Craig Scott, regarding her leave. At the end of the overnight shift (the 

morning of May 13), Scott entered her time off as June 1-13 in the department’s 

electronic leave-tracking system, TeleStaff. 

Simon did not change her tickets, even after Edling informed her on May 12 

that she did not have leave for June 1 and 2. Nor did she tell him that she already had 

bought her trans-Atlantic tickets. But on the evening of May 13, she did mention her 

mother’s difficulties to him. He suggested she could look into taking FMLA leave. 

On May 14, Simon inquired about FMLA with the Human Resources (HR) 

department, and on May 18, she applied for FMLA leave to care for her mother from 
3 

June 1-17. Her application was complete except for a required certification from her 

mother’s doctor. HR told her she was eligible for FMLA leave and it could be 

applied retroactively, if it were to be approved once the application was complete. 

In the meantime, on May 17, a lieutenant in charge of night-shift staffing 

levels sought confirmation that she would be out from June 1-13. Even though 

Edling had told her that her leave would not start until June 3, Simon did not correct 

the lieutenant or inquire about the discrepancy. On May 22, she bought a plane ticket 

for Denver to Boston, leaving in the early afternoon of June 1.

On May 28, Edling and Lopez became aware that TeleStaff still showed Simon 

being out on leave on June 1 and 2. They met with Simon on May 29. Lopez 

directly ordered her to be at work on June 1 and 2. Simon refused, stating that her 

family came first. But she did not tell Lopez or Edling that she had applied for 

FMLA leave to care for her mother, and apparently Lopez did not understand that her 

mother was disabled. 

On Saturday, May 31, the doctor faxed the required certification to HR. 

Simon learned of the transmittal on the morning of Sunday, June 1, and she left for 

Boston on the flight she had previously booked. She called in from Boston just 

before her scheduled shift that evening, telling the sergeant on duty that she was 

taking FMLA leave. 

On Monday, June 2, Lopez filed a complaint against Simon with the Internal 

Affairs Bureau (IAB) for disobeying a direct order and for feigning an illness to 

obtain FMLA leave (apparently he erroneously thought Simon was invoking FMLA 
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leave for her own medical needs). HR approved Simon’s FMLA leave on June 4. 

Lopez informed IAB of the approval of the FMLA leave. 

After IAB investigated the complaint, Commander Michael H. Battista, acting 

on behalf of the Chief of Police, prepared a disciplinary recommendation (Written 

Command). Battista stated that “it appears [HR] indicated Officer Simon would be 

approved for FMLA leave, [and] could use it retroactively, and Officer Simon 

reasonably relied upon [that] guidance.” Aplt. App., Vol. II at 10. Given that HR 

approved the FMLA leave, “issues and questions related to Officer Simon’s FMLA 

[leave] are neither germane nor probative to her alleged misconduct.” Id. Instead, 

Battista concluded that she violated three departmental rules: RR-112.1 (Misleading 

or Inaccurate Statements), RR-112.2 (Commission of a Deceptive Act) and RR-105 

(Conduct Prejudicial). 

RR-112.1 states, “Officers shall not knowingly make a misleading or 

inaccurate statement relating to their official duties.” Id. at 103. Battista concluded 

that Simon misled her command staff concerning her approved leave dates. He 

credited the accounts of other witnesses, including Scott, indicating that she 

represented she had leave for June 1 and 2 and that she did not correct that 

misapprehension even after it was brought to her attention. Battista recommended 

the presumptive penalty of 10 days’ suspension for violating RR-112.1. 

RR-112.2 states, “In connection with any investigation or any judicial or 

administrative proceeding, officers shall not commit a materially deceptive act.” Id. 

Battista concluded that Simon violated RR-112.2 by making “multiple materially 
5 

deceptive statements during the course of [the] IAB investigation.” Id. at 12. He 

found that “considered together,” her statements during the IAB investigation 

revealed “a clear pattern of deceptive conduct.” Id. at 12-13. “Several of 

Officer Simon’s statements to IAB and her portrayal of events are directly 

contradicted by the statements of her supervisors, contradict one another, or are 

inconsistent with the facts of the case.” Id. at 13. He recommended the presumptive 

penalty, termination of employment, for violating RR-112.2. 

Finally, RR-105 provides, 

Officers shall not engage in conduct prejudicial to the good order and 

police discipline of the Department or conduct unbecoming an officer 

which: 

(a) May or may not specifically be set forth in Department rules and 

regulations or the Operations Manual; or 

(b) Causes harm greater than would reasonably be expected to result, 

regardless of whether the misconduct is specifically set forth in 

Department rules and regulations or the Operations Manual. 

Id. at 102. Battista concluded that Simon violated RR-105 “when she manipulated 

her chain of command in order to obtain her desired time off.” Id. at 16. He found 

that Simon “fail[ed] to be forthcoming and omitt[ed] information” in dealing with 

command staff. Id. Battista recommended the presumptive penalty, termination of 

employment, for violating RR-105. 

The City entrusted the final disciplinary decision to the Deputy Director of 

Safety, Jess Vigil. In a written Departmental Order of Disciplinary Action 

(Departmental Order), Vigil found that Simon had violated the three department rules 

identified in the Written Command. Regarding RR-112.1, Vigil determined that 
6 

Simon made misleading statements to her supervisors about the dates of her approved 

leave, failed to inform her supervisors about pertinent information, and failed to set 

the record straight when she had the opportunity to do so. Regarding RR-112.2, 

Vigil determined that Simon “made multiple materially deceptive statements during 

the course of the IAB investigation,” and when those statements were “considered 

together, a clear pattern of deceptive conduct emerges.” Id. at 31. In reaching this 

conclusion, he found the statements of other witnesses, including Edling and Scott, 

more credible than Simon’s statements. And regarding RR-105, Vigil concluded that 

“Officer Simon would not accept [the] decision [to allow her June 3-14 off] and 

engaged in inappropriate and unprofessional behavior which undermined the 

authority of her command.” Id. at 37. He found that she was untruthful to her 

superiors and that she misled command staff and HR by not fully and completely 

informing them as to pertinent details. Vigil imposed 30 days’ suspension for the 

violation of RR-112.1 and terminated Simon’s employment for the violations of 

RR-112.2 and RR-105. 

Simon brought two FMLA claims, one that the City interfered with her right to 

take FMLA leave, in violation of 29 U.S.C. § 2615(a)(1), and one that it retaliated 

against her for taking FMLA leave, in violation of § 2615(a)(2). In granting the 

City’s motion for summary judgment on both claims, the district court held that 

“[t]he record presented does not support a possible finding that the termination of 

plaintiff’s employment as a [Denver] police officer was related to her FMLA leave. 

In short Simon was fired for dishonesty.” Aplt. App., Vol. III at 77. 
7 

DISCUSSION 

 “We review a grant of summary judgment de novo, drawing all reasonable 

inferences and resolving all factual disputes in favor of the non-moving party.” 

DePaula v. Easter Seals El Mirador, 859 F.3d 957, 968 (10th Cir. 2017) (internal 

quotation marks omitted). “Summary judgment shall be granted if ‘the movant 

shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). 

Simon’s opening brief addresses only her retaliation claim. She therefore has waived 

any challenge to the grant of summary judgment on her interference claim. 

See Gonzales v. City of Albuquerque, 701 F.3d 1267, 1273 (10th Cir. 2012). 

Simon invokes the burden-shifting analysis set forth in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Metzler v. Fed. Home Loan Bank 

of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006) (holding that FMLA retaliation 

claims are subject to the McDonnell Douglas burden-shifting analysis). Under this 

framework, 

the plaintiff bears the initial burden of establishing a prima facie case of 

retaliation. If the plaintiff does so, then the defendant must offer a 

legitimate, non-retaliatory reason for the employment action. The plaintiff 

then bears the ultimate burden of demonstrating that the defendant’s 

proffered reason is pretextual. 

Id. (citations omitted). 

For purposes of this appeal, we assume that Simon satisfied her burden of 

establishing a prima facie case of retaliation. The City offered a legitimate, 

non-retaliatory reason for terminating Simon’s employment—Vigil’s determination 
8 

that she violated departmental regulations RR-112.2 and RR-105. The question 

therefore is whether Simon satisfied her burden of demonstrating a genuine dispute 

of material fact as to whether the City’s proffered reason is pretextual. See Brown v. 

ScriptPro, LLC, 700 F.3d 1222, 1229 (10th Cir. 2012). 

“A plaintiff may show pretext by demonstrating the proffered reason is 

factually false, or that discrimination was a primary factor in the employer’s 

decision.” DePaula, 859 F.3d at 970 (internal quotation marks omitted). “The 

employee can show pretext by a variety of evidence; no one type of evidence is 

required.” Brown, 700 F.3d at 1229. Demonstrating pretext “is often accomplished 

by revealing weaknesses, implausibilities, inconsistencies, incoherences, or 

contradictions in the employer’s proffered reason, such that a reasonable fact finder 

could deem the employer’s reason unworthy of credence.” DePaula, 859 F.3d at 970 

(internal quotation marks omitted). The employee “may also show pretext by 

demonstrating the [employer] acted contrary to a written company policy, an 

unwritten company policy, or a company practice when making the adverse 

employment decision affecting the [employee].” Id. (internal quotation marks 

omitted). 

Simon cites several findings in the Departmental Order as evidence of pretext. 

The City argues that she forfeited all but one of these arguments by failing to make 

them in the district court, where her pretext argument focused on the adequacy of the 

investigation. Simon replies that she adequately preserved her arguments for appeal, 

but in the alternative she argues for plain-error review. We agree with the City that 
9 

Simon forfeited most of her pretext arguments. See id. at 976; Richison v. Ernest 

Grp., Inc., 634 F.3d 1123, 1128, 1130 (10th Cir. 2011). Generally we would review 

her forfeited arguments only for plain error, which would require her to show 

“(1) error, (2) that is plain, which (3) affects substantial rights, and which 

(4) seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” See Richison, 634 F.3d at 1128. We need not weigh the proper 

standard of review for each of her arguments separately, however, because she fails 

to show error under even the more favorable standard, de novo review. 

Simon argues that (1) some of the statements in the Departmental Order were 

discredited by evidence and later admissions, and (2) other statements were suspect 

because they involved Simon’s own belief and intent, which Vigil was not in a 

position to determine, and on Vigil’s inaccurate evaluation of witnesses’ credibility. 

We must keep in mind, however, “our role is to prevent unlawful [employment] 

practices, not to act as a super personnel department that second guesses employers’ 

business judgments.” Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1133 (10th Cir. 2014) 

(brackets and internal quotation marks omitted). “[W]e examine the facts as they 

appear to the person making the decision,” Rivera v. City & Cty. of Denver, 365 F.3d 

912, 925 (10th Cir. 2004) (internal quotation marks omitted), and we do not judge 

“whether the employer’s proffered reasons were wise, fair or correct, but whether it 

honestly believed those reasons and acted in good faith upon those beliefs,” id. at 

924-25 (brackets and internal quotation marks omitted). “Evidence that the employer 

should not have made the termination decision—for example, that the employer was 
10 

mistaken or used poor business judgment—is not sufficient to show that the 

employer’s explanation is unworthy of credibility.” DePaula, 859 F.3d at 970-71 

(internal quotation marks omitted). “What is important is . . . whether the [employer] 

terminated [the employee] because it sincerely, even if mistakenly, believed [in the 

proffered rationale].” Dalpiaz, 760 F.3d at 1134. 

Simon’s issues fall into the realm of business judgments and evaluations. 

While some of Vigil’s findings ultimately may not have been correct, any 

inaccuracies are insufficient to show that he did not honestly believe the statements 

he made at the time he made them. See Swackhammer v. Sprint/United Mgmt. Co., 

493 F.3d 1160, 1170 (10th Cir. 2007). Even in light of Vigil’s claimed errors or 

misjudgments, the record would not allow a reasonable factfinder to conclude that 

Vigil’s stated rationales for terminating Simon’s employment were pretext for FMLA 

retaliation. Simon therefore has failed to show that the district court erred. 

Simon also posits that it was illogical for Vigil to conclude that she attempted 

to manipulate her command staff, when she did not do the one thing Lopez said 

would have convinced him to grant her entire requested leave—that is, to directly 

inform him that her mother was disabled and Simon was requesting FMLA leave to 

care for her. This argument also falls into the realm of requesting that we 

second-guess the City’s business judgment. Vigil’s evaluation of the evidence does 

not create a genuine issue of material fact as to pretext. Accordingly, this argument 

also fails to establish that the district court erred. 
11 

CONCLUSION 

 The district court’s judgment is affirmed. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge