Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—10th Cir.: GEICO sales rep was fired for failing to obtain NY license, not racial bias, (Dec 17, 2025)

By Kathleen Kapusta, J.D.

Although the employee worked out of the company’s Kansas office, sales representatives received almost 10 percent of their calls from New York.

Although a federal district court erred in finding a Black sales representative for GEICO, whose job was not eliminated after he was fired, did not establish a prima facie case of race discrimination, that error was harmless, the Tenth Circuit held, finding that the district court correctly ruled that he failed to create a genuine issue of fact as to pretext. Accordingly, the appeals court affirmed summary judgment against the employee’s various claims (Plump v. Government Employees Insurance Co. dba GEICO, No. 24-3091 (10th Cir. Dec. 16, 2025)).

As a sales representative in GEICO’s Lenexa, Kansas, office, the employee sold insurance by telephone to customers throughout the country. As part of his job, he was required to obtain and maintain licenses issued by various state insurance departments, including New York, from which sales representatives received almost 10 percent of their calls.

New York license denial. Just days after he was hired in June 2020, the employee applied for a New York insurance license, but because he had failed to report an issue with his North Dakota license, the state requested more information. The employee not only failed to respond to that request, he also failed to respond to the state’s follow-up letter and, as a result, his application was denied. Because he also failed to appeal by the August 2021 deadline, he was prohibited from reapplying until August 2022.

Although the state licensing agent sent a copy of the denial letter to GEICO’s Dallas licensing team, they failed to upload it to the employee’s file. When the Kansas licensing team discovered the rejected application, GEICO informed the employee that he could not remain in his sales position. In response to the company’s request for a report on his performance, the employee’s supervisor indicated he averaged a “good” score on his overall performance ratings.

Audit. A subsequent GEICO audit of sales department calls revealed, however, that the employee’s call transfer percentage was high, his quote to call percentage was low, and he was the only representative with licensing problems. The following month, the employee was told he would not be transferred to a role in the company’s service department.

FMLA leave. When the company subsequently learned that the employee’s high transfer rate was due to call avoidance and licensing issues, it decided to terminate him. Around that same time, the employee complained to HR about the handling of his New York license among other things. Five days later, he asked about FMLA leave. Upon receiving the required paperwork, the employee told his supervisor that he was checking into a hospital. He never checked into the hospital and did not report to work for 42 days.

After investigating his HR complaint, GEICO determined that the employee had been held to the same standard as all sales representatives. HR met with him in February about the results and also told him management would be reviewing his employment due to the rejection of his New York license. Two days later, the employee again told his supervisor he was going back into the hospital. Once again, he never checked into a hospital. He was terminated the following day.

Lower court proceedings. The employee subsequently sued under the FMLA, ADA, Title VII, and Section 1981 and the court granted summary judgment to GEICO on all claims.

Race discrimination claim. In support of his argument on appeal that the district court erred in concluding he did not make out a prima facie case of race discrimination, the employee cited the Tenth Circuit’s 2000 Kendrick v. Penske Transp. Servs., Inc., decision providing that the termination of a qualified employee belonging to a protected class raises an inference of discrimination if the employee’s position remains open. Kendrick, the court here explained, definitively held that a plaintiff in a Title VII or Section 1981 suit alleging discriminatory discharge can make out a prima facie case by showing, as the fourth prong of the prima facie case, that the job was not eliminated after his discharge.

Kendrick, the court continued, noted that this iteration of the prima facie case arose directly from the Supreme Court’s failure-to-hire decision in McDonnell Douglas and also noted that “[t]his circuit’s earliest discriminatory discharge cases all adopted the four-part prima facie test as articulated in McDonnell Douglas. That is, the fourth prong only required the plaintiff to show that his or her job was not eliminated after the discharge.”

Plotke. For its part, GEICO argued that the Tenth Circuit’s 2005 decision in Plotke v. White rendered the continued existence of a discharged employee’s job irrelevant. It relied on a statement from Plotke that “[W]here an employer contends the actual reason for termination in a discriminatory firing case is not elimination of the employee’s position but, rather, unsatisfactory conduct, the status of the employee’s former position after his or her termination is irrelevant.” But when viewed in context, said the court, “it becomes clear Plotke was simply carrying on this court’s tradition of treating McDonnell Douglas’s prima-facie-case requirement as an entirely flexible standard.”

Indeed, said the court, not only did Plotke recognize that while a plaintiff may establish a prima facie case by including evidence their job was not eliminated after their discharge, it also noted that “the elimination of the position does not necessarily eviscerate a plaintiff’s claim that her discharge was motivated by discrimination.” Noting that Plotke ultimately held that “the fourth element of a prima facie case is a flexible one that can be satisfied differently in varying ways,” the court concluded that the passage cited by GEICO did not support its proposed rule.

“Given Plotke’s emphasis on the flexible nature of the prima facie case, and its refusal to apply it rigidly to ‘eviscerate a plaintiff’s claim’ when the job from which she was terminated is eliminated, Plotke cannot be read to support an equally rigid rule that views as irrelevant the fact a position remains open upon the termination of a qualified member of a protected class,” the court stated. Accordingly, it found the district court erred in concluding that the employee failed to make out a prima facie case of race discrimination.

Pretext. But no reasonable jury, said the court, could conclude that GEICO did not believe the employee’s failure to obtain a New York license made him unsuitable for the sales position. Though he argued that he sufficiently established that GEICO’s requirement of a New York license was not a bona fide job requirement but, instead, a requirement created to justify his termination, he stipulated in the pretrial order that for his position he sold insurance to customers by telephone and was required to obtain and maintain licenses issued by various states’ insurance departments; New York was the second must frequent state his department received calls from so GEICO considered a New York license to be a required state license for the department; and he “was told that having a New York insurance license was important to his role.”

Pointing out that on motions for summary judgment, courts regard stipulations of fact as conclusive party admissions, the court noted that the employee never asked the district court for relief from his stipulation or asserted on appeal that the district court erred in failing to sua sponte grant him relief. Because he was bound by his stipulations, no reasonable jury could conclude GEICO’s New York licensing requirement was not a bona fide requirement for his sales position.

Shifting reasons? He also argued that GEICO proffered shifting reasons for his termination as, at various times, it explored the possibility of firing him for call avoidance, failure to obtain a New York license, and his “no call no show” status during his leave. But rather than offering shifting rationales for the termination decision, the court found that GEICO “undertook a holistic analysis of his work performance, identified several deficiencies, and ultimately decided to terminate him based on his failure to obtain the necessary license to sell insurance in New York.” Further, it never deviated from that reason at any point during the litigation.

Nor was there any evidence GEICO’s investigation into his HR complaints was inadequate or unfair, said the court, finding that none of the three bases he asserted, whether considered individually or in combination, created a genuine issue of fact as to pretext. Thus, his Title VII and Section 1981 claims failed on the third stage of McDonnell Douglas.

And because each of these bases for establishing pretext failed on appeal, the court found his temporal proximity argument also failed. Accordingly, his FMLA and ADA retaliation claims also failed at the third stage of McDonnell Douglas.

The case is No. 24-3091.

Judge: Murphy, M.

Attorneys: Grace Elisabeth Bushong, University of Colorado School of Law, for Dion Plump. Jenna Brofsky (Husch Blackwell) for Government Employees Insurance Co. dba GEICO.

Companies: Government Employees Insurance Company; GEICO

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