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 dis trict court’s grant of summary judgment to her former employer, the City and County of Denver, on her clai ms 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 ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 24, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Simon was a Denver police officer , working the overnight shift from 7 p.m. to 7 a.m. In May 2014, s he learned her sister would be getting ma rried in the Azores Islands, Portugal, on June 7, 2 014. Her disabled mother, who l ived in Illinois and needed assistance, wanted to t ravel to the wedding. Simon soug ht leave from June 1-14 to travel with her m other. Her commander, Antonio Lo pez, approved her to be out from June 3-14. But S imon says she heard her lieuten ant, Kevin Edling, tell her that she was approved to be out from June 1-13. The plan was that Simon’s motherwould travel from Chicago to B oston, where Simon would meet her, and the two then would travel to th e Azores together. On the morning of May 12, Simon bo ught plane tickets from Bosto n to the Azores for the evening of June 1. Lateron May 12, Edling made it cle ar to her that she was expected to be at work on June 1 and 2. That night, she had co nversations with her sergeant, Craig Scott, regarding her leave. At the end of the overnight shift (the morning of May 13), Scott entere d 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 he r 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 ticke ts. But on the evening of May 1 3, she did mention her mother’s difficulties to him. He suggested she could look into taking FMLA leave. On May 14, Simon inquired about F MLA with the Human Resources ( HR) department, and on May 18, she app lied for FMLA leave to care f or her mother from3 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 a nd it could be applied retroactively, if it were to be approved once the appli cation was complete. In the meantime, on May 17, a lie utenant in charge of night-shi ft staffing levels sought confirmation that she would be out from June 1-13 . Even though Edling had told her that her le ave would not start until June 3 , Simon did not correct the lieutenant or inquire about t he discrepancy. On May 22, sh e bought a plane ticket for Denver to Boston, leaving in the early afternoon of June 1. On May 28, Edling and Lopez beca me aware that TeleStaff still s howed Simon being out on leave on June 1 and2. They met with Simon on May 29. Lopez directly ordered her to be at work on June 1 and 2. Simon refu sed, stating that her family came first. But she did not tell Lopez or Edling that s he had applied for FMLA leave to care for her moth er, and apparently Lopez did not understand that her mother was disabled. On Saturday, May 31, the doctor faxed the required certificatio n to HR. Simon learned of the transmittal on the morning of Sunday, June 1, and she left for Boston on the flight she had pre viously booked. She called in from Boston just before her scheduled shift that evening, telling the sergeant o n duty that she was taking FMLA leave. On Monday, June 2, Lopez filed a complaint against Simon with t he Internal Affairs Bureau (IAB) for disobe ying a direct order and for feig ning an illness to obtain FMLA leave (apparently h e erroneously thought Simon was invoking FMLA4 leave for her own medical needs) . HR approved Simon’s FMLA lea ve on June 4. Lopez informed IAB of the appr oval of the FMLA leave. After IAB investigated the com plaint, Commander Michael H. Batt ista, acting on behalf of the Chief of Police , prepared a disciplinary recom mendation (Written Command). Battista stated that “ it appears [HR] indicated Offi cer Simon would be approved for FMLA leave, [and] c ould use it retroactively, and Officer Simon reasonably relied upo n [that] guidance.” Aplt. App., Vol. II a t 10. Given that HR approved the FMLA leave, “issues and questions related to Offic er Simon’s FMLA [leave] are neither germane nor p robative to her alleged miscon duct.” Id. Instead, Battista concluded that she viola ted three departmental rules: RR-112.1 (Misleading or Inaccurate Statements), RR-11 2.2 (Commission of a Deceptive Act) and RR-105 (Conduct Prejudicial). RR-112.1 states, “Officers shall not knowingly make a misleadin g or inaccurate statement relating to their official duties.” Id. at 103. Battista concluded that Simon misled her command st aff concerning her approved lea ve dates. He credited the accounts of other w itnesses, including Scott, indi cating that she represented she had leave for J une 1 and 2 and that she did notcorrect that misapprehension even after it wa s brought to her attention. Ba ttista recommended the presumptive penalty of 10 da ys’ suspension for violating RR -112.1. RR-112.2 states, “In connection w ith any investigation or any j udicial or administrative proceeding, officer s shall not commit a material ly deceptive act.” Id. Battista concluded that Simon vi olated RR-112.2 by making “mult iple materially5 deceptive statements during the c ourse of [the] IAB investigati on.” Id. at 12. He found that “considered together,” her statements during the IAB investigation revealed “a clear pattern o f deceptive conduct.” Id. at 12-13. “Several of Officer Simon’s statements to IA B and her portrayal of events a re directly contradicted by the statements o f her supervisors, contradict o ne another, or are inconsistent with the facts of the case.” Id. at 13. He recommende d the presumptive penalty, termination of employm ent, for violating RR-112.2. Finally, RR-105 provides, Officers shall not engage in conduct prejudicial to the good or der and police discipline of the Departm ent or conduct unbecoming an of ficer which: (a) May or may not specifically be set forth in Department rule s and regulations or the Operations Manual; or (b) Causes harm greater than wo uld reasonably be expected to re sult, regardless of whether the misc onduct is specifically set forth in Department rules and regulatio ns or the Operations Manual. Id. at 102. Battista concluded that Simon violated RR-105 “when s he manipulated her chain of command in order to obtain her desired time off.” Id. at 16. He found that Simon “fail[ed] to be fort hcoming and omitt[ed] informatio n” in dealing with command staff. Id. Battista recommended the presum ptive penalty, termination of employment, for violating RR-105. The City entrusted the final dis ciplinary decision to the Deput y Director of Safety, Jess Vigil. In a written Departmental Order of Discipl inary Action (Departmental Order), Vigil found that Simon had violated the t hree department rules identified in the Wr itten Command. Regardi ng RR-112.1, Vigil d etermined that6 Simon made misleading statements to her supervisors about the d ates of her approved leave, failed to inform her supe rvisors about pertinent informa tion, and failed to set the record straight when she ha d the opportunity to do so. Reg arding RR-112.2, Vigil determined that Simon “m ade multiple materially deceptive statements during the course of the IAB investiga tion,” and when those statements were “considered together, a clear pattern of deceptive conduct emerges.” Id. at 31. In reaching this conclusion, he found the statemen ts of other witnesses, includi ng Edling and Scott, more credible than Simon’s stat ements. And regarding RR-105, V igil concluded that “Officer Simon would not accept [t he] decision [to allow her Ju ne 3-14 off] and engaged in inappropria te and unprofessional behavior which unde rmined the authority of her command.” Id. at 37. He found that she was untruthful to her superiors and that she misled co mmand 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 a nd terminated Simon’s employment for the violations of RR-112.2 and RR-105. Simon brought two FMLA claims, one that the City interfered wit h her right to take FMLA leave, in violation of 29 U.S.C. § 2615(a)(1), and on e that it retaliated against her for taking FMLA leave , in violation of § 2615(a)(2) . In granting the City’s motion for summary judgm ent on both claims, the districtcourt held that “[t]he record presented does notsupport a possible finding tha t the termination of plaintiff’s employment as a [Denve r] police officer was related to her FMLA leave. In short Simon was fired for di shonesty.” Aplt. App., Vol. III at 77.7 DISCUSSION “We review a grant of summary judgment de novo, drawing all re asonable inferences and resolving all fact ual disputes in favor of the n on-moving party.” DePaula v. Easter Seals El Mirador , 859 F.3d 957, 968 (10th Cir. 2017) (internal quotation marks omitted). “Sum mary judgment shall be granted i f ‘the movant shows that there is no genuine d ispute 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. Sh e therefore has waived any challenge to the grant of s ummary judgment on her interfere nce claim. See Gonzales v. City of Albuquerque , 701 F.3d 1267, 1273 (10th Cir. 2012). Simon invokes the burden-shif ting 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 retal iation claims are subject to the McDonnell Douglas burden-shifting anal ysis). Under this framework, the plaintiff bears the initial bur den of establishing a prima facie case of retaliation. If the plaintiff does so, then the defendant must offer a legitimate, non-retaliatory reas on for the employment action. The plaintiff then bears the ultimate burden o f demonstrating that the defend ant’s proffered reason is pretextual. Id. (citations omitted). For purposes of this appeal, we a ssume that Simon satisfied her burden of establishing a prima facie case o f retaliation. The City offer ed a legitimate, non-retaliatory reason for termin ating Simon’s employment—Vigil ’s determination8 that she violated departmental r egulations RR-11 2.2 and RR-105. The question therefore is whether Simon satis fied her burden of demonstratin g a genuine dispute of material fact as to whetherthe City’s proffered reason is p retextual. See Brown v. ScriptPro, LLC , 700 F.3d 1222, 1229 (10th Cir. 2012). “A plaintiff may show pretext by demonstrating the proffered re ason is factually false, or that discrimin ation was a primary factor in the employer’s decision.” DePaula , 859 F.3d at 970 (internal quot ation marks omitted). “The employee can show pretext by a va riety of evidence; no one type of evidence is required.” Brown , 700 F.3d at 1229. Demonstrati ng pretext “is often accomplish ed by revealing weaknesses, implaus ibilities, inconsistencies, inc oherences, or contradictions in the employer’s proffered reason, such that a reasonable fact finder could deem the employer’s rea son unworthy of credence.” DePaula , 859 F.3d at 970 (internal quotation ma rks omitted). The emp loyee “may also sho w pretext by demonstrating the [employer] acte d contrary to a written compan y policy, an unwritten company policy, or a co mpany practice when making the adverse employment decision affect ing the [employee].” Id. (internal quotation marks omitted). Simon cites several findings in t he Departmental Order as evide nce of pretext. The City argues that she forfeit ed all but one of these argumen ts by failing to make them in the district court, where her pretext argument focused on the adequacy of the investigation. Simon replies thatshe adequately preserved herarguments for appeal, but in the alternative she argues for plain-error review. We a gree with the City that9 Simon forfeited most of her pretext arguments. See id. at 976; Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128, 1130 (10t h Cir. 2011). Generally we wou ld review her forfeited arguments only for plain error, which would requi re her to show “(1) error, (2) that is plain, w hich (3) affects substantial ri ghts, and which (4) seriously affects the fairne ss, integrity, or public reputa tion of judicial proceedings.” See Richison , 634 F.3d at 1128. We need not weigh the proper standard of review for each of he r arguments separately, howeve r, because she fails to show error under even the mor e favorable standard, de novo r eview. Simon argues that (1) some of the statements in the Departmenta l Order were discredited by evidence and late r admissions, and (2) other sta tements were suspect because they involved Simon’s ow n belief and intent, which Vigi l was not in a position to determine, and on Vig il’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 seco nd 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. 200 4) (internal quotation marks omitted), a nd we do not judge “whether the employer’s proffere d reasons were wise, fair or co rrect, but whether it honestly believed t hose reasons and acted i n good faith upon th ose beliefs,” id. at 924-25 (brackets and internal quotation marks omitted). “Evide nce that the employer should not have made the termina tion decision—for example, that the employer was10 mistaken or used poor business ju dgment—is not sufficient to sh ow that the employer’s explanation is unworthy of credibility.” DePaula , 859 F.3d at 970-71 (internal quotation ma rks omitted). “What i s important is . . . whether the [employer] terminated [the employee] because it sincerely, even if mistake nly, believed [in the proffered rationale].” Dalpiaz , 760 F.3d at 1134. Simon’s issues fall into the r ealm of business judgments and ev aluations. While some of Vigil’s findings u ltimately may not have been correct, any inaccuracies are insufficient to show that he did not honestly believe the statements he made at the tim e 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 factfinde r to conclude that Vigil’s stated rationa les for terminating Simon’s employment we re pretext for FMLA retaliation. Simon therefore has failed to show that the distr ict court erred. Simon also posits that it was illogical for Vigil to conclude t hat she attempted to manipulate her command staff , when she did not do the one th ing Lopez said would have convinced him to gran t her entire requested leave—th at is, to directly inform him that her mother was d isabled and Simon was requestin g FMLA leave to care for her. This argument als o falls into the realm of reque sting that we second-guess the City’s busines s judgment. Vigil’s evaluation of the evidence does not create a genuine issue of mat erial fact as to pretext. Acc ordingly, 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