In determining whether a similarly
situated employee was treated more favorably than that plaintiff, the Tenth
Circuit does not compare plaintiff with employees who were disciplined by
another decisionmaker.
Rivera v. City and County of Denver, 365 F.3d 912 (10th
Cir. April 27, 2004) - This is an ADEA and Title VII wrongful termination
action alleging age and national origin discrimination. The district court
granted summary judgment on behalf of the City. The Tenth Circuit affirms.
Edward Rivera, a Hispanic male born on July 15, 1953, worked in the
Department of Public Works where his job was to clean catch basins, which
are openings in gutters where water drains from the streets into the sewer
system. Rivera filled out a work ticket claiming to have cleaned 27 catch
basins on January 31, 2000. His immediate supervisor was suspicious because
due to equipment problems Rivera had that day, he was only able to work for
approximately 25 minutes. The City investigated the matter and eventually
Rivera was terminated based on the City's belief that he had falsely
reported cleaning 27 catch basins (or even 17 which is the number he later
claimed) and the decisionmaker also believed that Rivera had induced another
employee to lie in order to support his story. On appeal, the Tenth Circuit
finds Rivera's evidence insufficient that there was a younger or
non-Hispanic employee who was similarly situated who was treated more
favorably. In reviewing Rivera's evidence, the Court did not consider
evidence not presented to the district court, evidence involving other
decisionmakers, and evidence involving disciplinary actions of employees
with drug or alcohol problems because special City rules apply to those
situations. Consequently, Rivera was unable to show that the City did not
honestly believe the reasons given for his termination.
