Pea v. Elavon, Inc.

Filing 94

FINDINGS OF FACT AND CONCLUSIONS OF LAW Based the above findings of fact and conclusions of law, Defendants did not discriminate against Plaintiff when they terminated his employment. Accordingly, it is ORDERED that judgment shall enter in favor o f Defendants and against Plaintiff on both his race discrimination claim and his age discrimination claim. It is FURTHER ORDERED that this matter is DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that Defendants are awarded their costs to be taxed by the clerk of the court in the time and manner prescribed in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1., by Judge Wiley Y. Daniel on 9/6/2017. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01339-WYD-KLM
CHARLES E. PEA,
Plaintiff,
v.
ELAVON, INC. and U.S. BANK NATIONAL ASSOCIATION d/b/a U.S. BANK,
Defendants.

FINDINGS OF FACT
AND
CONCLUSIONS OF LAW

I.

INTRODUCTION
Plaintiff Charles Pea (“Pea”) asserts two employment related claims in this

matter: (1) a Title VII and 42 U.S.C. § 1981 race discrimination claim and (2) an age
discrimination claim under the Age Discrimination in Employment Act (“ADEA”). Pea
claims that Defendants Elavon and U.S. Bank (“Elavon”) discriminated against him in
connection with the termination of his employment.
Shortly before a jury trial was set to commence, the parties filed a Joint
Statement of Withdrawal of Jury Demand (ECF No. 71). Thus, a trial to the Court was
held on August 21-24, 2017. As the finder of fact, I have thoroughly and carefully
weighed the evidence presented at trial, assessed the credibility of the witnesses, and
considered the parties’ arguments, and for reasons stated on the record on August 24,
2017 and set forth below, I enter the following findings of fact and conclusions of law

pursuant to Fed. R. Civ. P. 52.
II.

FINDINGS OF FACT
1.

U.S. Bank is a diversified financial services company that offers banking

and financial solutions to its customers. Elavon is a subsidiary of U.S. Bank and part of
U.S. Bank Payment services. It provides a credit card processing network and payment
processing solutions for merchants including many healthcare providers.
2.

U.S. Bank and Elavon maintain a Code of Ethics and Business Conduct

which sets forth the Company’s discrimination policy. The policy states that “[w]e do not
tolerate harassment or discrimination based on race, religion, color, creed, age, sex,
national origin or ancestry, sexual orientation (including gender expression or identity),
genetic information, disability, veteran status, citizenship status, marital status or other
factors that are protected by law.” (Ex. 22). One of the Company’s core values is
diversity. “At U.S. Bank, diversity and inclusion means intentionally engaging and
respecting the talents, perspectives and uniqueness in all of US to drive business
success.” (Ex. 22).
3.

Elavon operates a call center in Englewood, Colorado. Between 2012 and

2016, approximately 20% of the call center employees were African American
individuals. At that same time frame, approximately 50% of the call center employees
were over 40 years of age.
4.

In July, 2012, Pea applied for an employment position with Elavon after

attending a job fair at Arapahoe Works, where he met Elavon employees, Tyrone
Velasquez and Susan Wills. After attending the job fair, Pea filled out an online job
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application.
5.

Pea’s date of birth is March 25, 1961 and he is African American.

6.

Pea then interviewed for the job with Elavon employees, Tyrone Velasquez

and Velasquez’s supervisor, Terese Brozovich.
7.

Velasquez testified that he met approximately 35 people at the job fair, but

he was impressed with Pea’s energy and excitement about working at Elavon, so
Velasquez recommended to human resources that Pea be hired. Pea was offered a
position as Operations Manager 3. This was an at-will position.
8.

When Velasquez hired Pea, he knew Pea was African American and he

believed Plaintiff to be close in age to himself. Velasquez was 51 years old at the time
and also African American.
9.
10.

On August 20, 2012, Pea began his employment with Elavon.
Velasquez worked as Elavon’s Director of Premier Customer Service and

supervised Pea during Pea’s entire employment with Elavon.
11.

As an Operations Manager, Pea’s responsibilities included managing the

call center’s achievement of targets and goals, developing and supervising a team of
representatives and leads, increasing quality customer service, strategic planning,
scheduling and driving the team to meet goals and objectives, creating a culture that
supports the mission of the company, ensuring compliance with all policies and
procedures, and recruiting, developing, and retaining the best people.
12.

Pea was also responsible for understanding the products for which he and

his team provided assistance, including credit card terminals and the Company’s health
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care product, holding weekly conference calls with a third-party vendor and Company
employees that work with the Healthcare customers, and handling emergency technical
issues when he was the manager on call.
13.

After approximately four months on the job, Velasquez gave Pea his first

performance review. The review period covered the start of Pea’s employment on
August 20, 2012 through December 31, 2012.
14.

The performance reviews are based on a 1-5 scale with 1 being

“Exceptional,” and 5 being “Not Effective.” A numeric rating of 2 is “Highly Effective,” 3
is “Solid Performance,” and 4 is “Needs Improvement.” Pea rated himself a 4 (Needs
Improvement) in three significant categories. His overall rating based on his selfevaluation was a 3.5. Pea indicated that he needed improvement in the areas of
managing the call center, proper use of available tools and resources, and drive results
orientation. (Ex. 3).
15.

Velasquez testified that he wanted to be fair to Pea, given that he was new

to a job with a rather steep learning curve. Thus, Velasquez rated Pea higher than Pea
rated himself, giving Pea an overall rating of 3.22, which is between Solid Performance
and Needs Improvement. Velasquez specifically noted that Pea needed to focus on
managing his scheduled hours and attendance to ensure proper coverage during the
morning hours; ensure that his staff is being appropriately recognized and awarded for
their work performance and achievements; improve his relationships and take more
initiative in regards to his staff and the products they support; collaborate more with his
peers on process improvements; and challenging and growing his team. Velasquez
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also wanted Pea to provide a more positive influence within the department, provide
timely Weekly/Monthly reporting and improvements, and manage timely outage
notifications.
16. Significantly, Velasquez testified that following this initial performance
review, Pea’s job performance worsened.
17. For example, Pea was required to provide Velasquez weekly and monthly
reports that Velasquez would then use to put together his own reports for his supervisor.
Pea himself admitted that he failed to timely submit these reports to Velasquez on
numerous occasions. On January 23, 2013, Velasquez sent Pea an email, informing
Pea that his weekly report was late. Pea responded by stating that he had prepared the
reports but forgot to send them and that he needed to start double checking himself.
However, on March 10, 2013, Velasquez emailed Pea about another late monthly
report. Pea responded stating that “I cannot give you a good reason for missing your
deadline.” (Ex. A7).
18.

Velasquez testified credibly as to the importance of the weekly and

monthly reports being submitted on time. The weekly reports are submitted to
Velasquez by all of his managers, and then Velasquez uses that information to compile
his own report to be sent to upper management. I find that this was one of Pea’s
important job duties, and his failure to submit these reports on time placed Elavon at a
disadvantage.
19.

In March, 2013, Velasquez asked Pea to draft an announcement regarding

one of Pea’s new employees. Pea missed the deadline, and Velasquez had to send
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Plaintiff a reminder email asking for the announcement again. This is another example
where Pea failed to fulfill one of his job duties.
20.

Velasquez testified that Pea’s job performance continued to decline. From

June, 2013 through August, 2013, Velasquez had regular one-on-one meetings with
Pea where Velasquez communicated with Pea about various performance issues and
concerns. Velasquez also tasked Pea with several managerial assignments, including
setting up a time line for another employee, Linda Cordova, to be trained to take
healthcare calls and to work to reduce the defect list. Pea never completed these tasks.
I find that these one-on-one meetings should have informed Pea that his work was still
deficient, but that Velasquez was continuing to work with Pea in an effort to help him
succeed.
21.

Between March and August, 2013, Pea arrived to work late or left the

premises during the course of the day, sometimes during company outages. Pea
continued to miss a variety of deadlines set for him by Velasquez, turned in inadequate
work product, and failed to communicate adequately with Velasquez regarding
significant events involving his team members or the status of projects assigned to him
by Velasquez.
22.

On August 9, 2013, Velasquez gave Pea a Written Warning/Performance

Improvement Plan (“PIP”) regarding Plaintiff’s performance.
23.

In the PIP, Velasquez critiqued Pea’s work performance in a number of

different areas including the following:
• Leaving the office unmanaged during system outages, specifically major
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outages on July 29 and July 30, 2013, and failing to notify management when his
schedule varied from his standard hours.
• Failing to timely comply with a deadline set by Velasquez to put together a plan
and time line for one of the employees from a different team to be trained to
assist Pea’s team.
• Failing to appropriately manage the defect list, including determining which
defects still needed to be addressed and accurately updating Velasquez on how
the defects were being addressed or removed from the list.
• Demonstrating poor communication by not informing Velasquez of issues with
Pea’s team such as sleeping on the job, resignation from employment, and
engaging in disruptive behavior.
24.

The PIP set forth Velasquez’s expectations of Pea going forward.

Velasquez requested better lines of communication, follow through and prompt
response times to deadlines, escalation of issues when appropriate, and keeping
management appraised of all escalated issues. Additionally, Pea was explicitly
instructed to complete tasks and projects within the assigned deadlines.
25.

The PIP further provided: “Upon successful completion of this notice

you will be expected to maintain satisfactory performance in all areas. If you fail to do
so, you will be subject to further disciplinary action up to and including termination
without additional warning periods.” (Ex. 11). On August 9, 2013, Velasquez met with
Pea to discuss the PIP in detail.
26.

As I stated on the record on August 24, 2017, I find that Velasquez placed

Pea on the PIP for a positive, rather than a negative, purpose. The PIP was
implemented because Velasquez had legitimately observed deficiencies in Pea’s job
performance and wanted to give him ample notification of those deficiencies with the

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hope that Pea’s performance would improve. I also find that Pea had a difficult time
understanding the full scope of his job, and Velasquez’s criticisms were fair and
legitimate. While Pea testified that he did not believe that the PIP accurately reflected
his work performance, this merely shows a difference of opinion, not evidence of
discrimination.
27.

There was ample evidence presented at trial about the July 29-30, 2013

outage referenced in the PIP. On July 29, 2013, Pea was aware that there was an
outage actively occurring, and then elected to leave the premises for nearly two hours to
take his truck to the mechanic for non-emergency repairs. On July 30, 2013, Pea again
left during the outage to take a personal phone call in the parking lot. As I stated on the
record in great detail, I find that Pea exercised poor judgment when he left work during
the ongoing outage, thus, Velasquez’s resulting criticisms were valid and legitimate.
28. With regard to the defect list, as I stated in great detail on the record, I find
that there was likely a miscommunication between Pea and Velasquez, and that Pea
failed to fully understand Velasquez’s expectations on how he should work to reduce the
list and update Velasquez on his progress or lack thereof. As to Pea’s failure to devise
a plan and time line for one of the employees from a different team to be trained to
assist Pea’s team, there was testimony that Pea never completed this task. Thus, I find
that Velasquez’s resulting criticisms were supported and nondiscriminatory.
29.

Finally, I find evidentiary support for Velasquez’s criticisms of Pea’s poor

communication and cannot say that these were pretextual or intentionally false.
30.

After Velasquez provided Pea with the PIP, both Velasquez and Pea
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testified that they met approximately every week to discuss Pea’s performance.
Velasquez was often critical of Pea’s performance and documented the performance
problems.
31.

After the PIP, Pea’s poor job performance continued. On September 22,

2013, the call center experienced an outage that impacted one of Elavon’s largest
clients, Hilton Hotels. A call center agent contacted Pea as he was the on-call manager
at the time, and informed him that 10-15 properties were unable to process credit card
transactions. Pea reached out to another manager to ask what to do. While there is
some dispute as to what the other manager told Pea, ultimately, Pea did not send a
notification to the customer. Velasquez testified that it was Pea’s responsibility to send
an outage notification to the customer in this specific situation, but that Pea failed to do
so.
32.

In late September, 2013, Velasquez instructed Pea to volunteer one or

two of his employees to assist with testing a new Healthcare product. Instead, Pea
ignored this request and had his entire team sign up for the test. Velasquez testified
that this left no one available to take health care calls. After this incident, Velasquez
noted that “Charles completely ignored my request and sent an email to the Product
manager shortly after our conversation requesting to have his entire team added as
testers.” (Ex. 14).
33.

In October, 2013, Pea missed the October 18 deadline set by Velasquez to

provide him with a draft nomination form for a member of Pea’s team who was to be
considered for a significant company award, the Pinnacle Award. Velasquez gave Pea
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the task in late September and, on October 1st, specifically reminded him again
regarding the October 18 deadline. Pea did not provide a completed nomination form
until October 28, 2013. While Pea testified that he could not recall the exact deadline
he was to submit the nomination form, I find credible Velasquez’s testimony and Teresa
Brozovich’s testimony that Pea missed this deadline.
34.

Velasquez testified that on October 31, 2013, he requested that Pea

implement an email form for Pea’s team to send as an automated acknowledgment
when a customer would contact the team online, seeking assistance. Velasquez asked
that Pea provide him with the process and procedure by November 6, 2013. Pea did
not meet the deadline or provide any update by that date. Velasquez again asked Pea
about the status in their one-on-one meeting. In response, Pea stated that he was
unable to get this task accomplished because he wanted to add an escalation process
to the procedure, which was not what Velasquez had instructed Pea to do. Pea
admitted that he never completed this automated email message task during his
employment.
35.

Based on these continuing performance problems, Velasquez testified that

he had originally intended to place Pea on another PIP in November, 2013, but after the
following two events occurred, Velasquez decided to terminate Pea’s employment.
36.

First, Velasquez requested that Pea provide his evaluation for his team

members by November 15, 2013. Pea asked for an extension of this deadline, which
Velasquez agreed to. However, Pea did not have the evaluations completed by the
extended deadline. When Pea did provide the evaluations to Velasquez, Velasquez
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noticed that the evaluations were similar, used the exact same wording in places, and
contained pronoun errors, likely due to copying and pasting from one evaluation to the
other. Second, Pea allowed his team-lead to turn in a completely blank self-evaluation.
Velasquez informed Pea that this was not acceptable and that Pea needed to have the
employee fill out the self-evaluation portion of the review. Both Velasquez and Terese
Brozovich credibly testified as to the importance of the annual employee review process
and the fact that untimeliness and sloppiness can impact employee promotions,
bonuses, benefits, and other financial compensation.
37.

Velasquez detailed many of Pea’s performance issues in a written

memorandum dated November 22, 2013.
38.

Velasquez made the recommendation to Human Resources that Pea’s

employment be terminated due to poor performance.
39.

On November 22, 2013, Velasquez and Shelly Geist, a Human Resources

representative, met with Pea. Velasquez informed Pea that he was being terminated
and referenced Pea’s various performance problems summarized in the written
memorandum. Pea did not claim that any of Velasquez’s criticisms were false and
made no complaints of discrimination.
40.

Velasquez is African American and was born on November 27, 1961,

making him 51 years old when he terminated Pea’s employment.
41.

After his termination, on December 30, 2013, Pea wrote a letter to Richard

Davis, the Chairman of the Board, CEO and President of U.S. Bank, in which Pea
complained that his termination was “wrongful.” (Ex. 15). In this letter, however,
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Plaintiff did not mention or complain of any type of discrimination.
42.

In response, Human Resources determined that Pea’s termination was

justified, and sent Pea a letter stating that his job performance did not meet Elavon’s
performance expectations. Thus, “[t]he termination decision stands.” (Ex. A40).
43.

During his employment, Pea never raised any complaints of discrimination

or harassment to anyone at Elavon, including Human Resources or Velasquez.
44.

In March, 2014, Pea filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”), alleging discrimination based on race,
age, retaliation, and hostile work environment.
45.

While Tommie Shaw, a former Elavon employee, testified that he

perceived race discrimination at Elavon in the form of him being treated as a “token”
African American employee, I cannot connect this testimony to any potential illegal
action taken against Pea since Pea’s termination was justified due to his poor
performance.
46.

In December, 2014 and January, 2015, Velasquez was investigated and

ultimately terminated from his employment for violating U.S. Bank policies with respect
to cash deposits. As I stated on the record on August 24, 2017, I find that this event is
not connected to the circumstances surrounding Pea’s termination, and does not impact
or diminish Velasquez’s credibility. In fact, both Shelly Geist and Terese Brozovich
testified that they trusted Velasquez’s management decisions and leadership. Also,
Terese Brozovich and Bruce Emberley (a former Elavon employee who was supervised
by Velasquez) both testified credibly that Velasquez treated his managers consistently
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and held them to the same performance standards.
III.

CONCLUSIONS OF LAW
1.

Pea claims that Elavon unlawfully terminated his employment based on his

race under Title VII and 42 U.S.C. § 1981and his age under the ADEA.
2.

Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating against employees and applicants for employment on the basis of race,
color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1).
3.

42 U.S.C. § 1981 prohibits racial discrimination in “the making,

performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §
1981(a), (b).
4.

“The ADEA states that it is unlawful for an employer ‘to fail or refuse to hire

or to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's age . . . .’” Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir.
2000) (quoting 29 U.S.C. § 623(a)(1)).
5.

Where, as here, plaintiff attempts to prove intentional discrimination by

indirect evidence, the court employs the burden shifting analysis established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973).
Under the McDonnell Douglas framework, the plaintiff must carry the initial
burden under the statute of establishing a prima facie case of racial
discrimination. Once the plaintiff has established a prima facie case, the
burden then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for its employment action. If the defendant
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makes this showing, the plaintiff must then show that the defendant's
justification is pretextual. Importantly, the three-part McDonnell Douglas
burden-shifting analysis is limited to the summary judgment context. Once
there has been a full trial on the merits, the sequential analytical model
adopted from McDonnell Douglas ... drops out and we are left with the
single overarching issue whether plaintiff adduced sufficient evidence to
warrant a jury's determination that adverse employment action was taken
against the plaintiff because of his or her protected status.
Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1226 (10th Cir. 2000)
(internal citations and quotations omitted); see Messina v. Kroblin Transportation
Systems, Inc., 903 F.2d 1306, 1308 (10th Cir. 1990) (stating in an ADEA case, that “the
presumption and burdens inherent in the McDonnell Douglas formulation drop out of
consideration when the case is submitted to the jury on the merits.”)
6.

“[A]lthough the presumption of discrimination drops out of the picture once

the defendant meets its burden of production, the trier of fact may still consider the
evidence establishing the plaintiff's prima facie case and inferences properly drawn
therefrom ... on the issue of whether the defendant's explanation is pretextual.” Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (internal citations and
quotations omitted).
7. Thus, to prevail on a claim of race discrimination, plaintiff bears the ultimate
burden of proving by a preponderance of the evidence that his race was a motivating
factor in the defendant’s actions. Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir.
1995) (citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
8.

To prevail on a claim of age discrimination, plaintiff bears the ultimate

burden of proving by a preponderance of the evidence that his employer would not have

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terminated his employment but for the plaintiff’s age. This standard does not require the
plaintiff to show that age was the sole motivating factor in the employment decision.
Instead, an employer may be held liable under the ADEA even if other factors
contributed to the employer taking the adverse action, as long as age was the factor
that made the difference. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176-78
(2009); Jones v. Okla. City Public Schools, 617 F.3d 1273, 1277-78 (10th Cir. 2010).
9.

Here, Pea is an African American who is over 40 years of age.

10.

Elavon terminated Pea’s employment.

11.

Pea claims that Elavon’s stated reasons for his termination are pretextual.

If I find pretext, I may, but am not required to, infer that race and/or age was a factor
that made a difference in the employer’s decision to terminate Pea’s employment.
Reeves, 530 U.S. at 146-149; Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232,
1241 (10th Cir. 2002).
12.

Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action such that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act for the asserted
non-discriminatory reasons. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)
(quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)).
13.

Generally, a plaintiff shows pretext in one of three ways: “(1) with evidence

that the defendant’s stated reason for the adverse employment action was false; (2)
with evidence that the defendant acted contrary to a written company policy prescribing
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the action to be taken by the defendant under the circumstances ...; or (3) with evidence
that the defendant acted contrary to an unwritten policy or contrary to company practice
when making the adverse employment decision affecting the plaintiff.” Plotke v. White,
405 F.3d 1092, 1102-03 (10th Cir. 2005).
14.

The Tenth Circuit has instructed that no matter what theory of pretext the

plaintiff asserts, the Court’s “role isn’t to ask whether the employer’s decision was ‘wise,
fair or correct, but whether [it] honestly believed [the legitimate, nondiscriminatory]
reasons [it gave for its conduct] and acted in good faith on those beliefs.’” Johnson, 594
F.3d at 1211 (alternations in original) (quoting Rivera v. City & Cty. of Denver, 365 F.3d
912, 925 (10th Cir. 2004)). “Evidence that the employer should not have made the
termination decision—for example, that the employer was mistaken or used poor
business judgment—is not sufficient to show that the employer’s explanation is
unworthy of credibility.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 948 (10th Cir.
2011) (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169-70
(10th Cir. 2007)). The Court’s role “is to prevent intentional discriminatory ... practices,
not to act as a ‘super personnel department,’ second guessing employers’ honestly held
(even if erroneous) business judgments.” Young v. Dillon Cos., Inc., 468 F.3d 1243,
1250 (10th Cir. 2006).
15.

Here, my role as the finder of fact is to weigh all the evidence and assess

the credibility of the witnesses in order to determine whether Pea was the victim of
intentional discrimination based on his race and/or age at the hands of Elavon.
16.

There is no dispute that Pea is an African American who was over 40
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years of age at the time of his employment with Elavon. Further, Pea was subjected to
an adverse employment action when Elavon terminated his employment.
17.

As set forth above, Elavon presented ample evidence that Pea was

terminated for a legitimate nondiscriminatory reason—continued poor job performance.
Pea, on the other hand, characterizes Elavon’s actions and criticisms of his job
performance as intentionally false and not worthy of belief. Pea believes that he was
targeted and treated unfairly by Velasquez and held to a higher standard than other
Elavon employees. Pea disagreed with Velasquez’s critiques and discipline of his job
performance, including being placed on the PIP and ultimately fired, and does not
believe that his work performance was accurately reported.
18.

While I believe that Pea’s testimony was largely credible and sincere,

Pea’s views show a difference of opinion, not evidence of discrimination. An
employee’s disagreement with his performance “obviously does not prove
discriminatory intent.” Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994).
19.

Although Pea testified that he was a good performer, “[i]t is the perception

of the decision maker which is relevant, not plaintiff’s perception of [him]self.” Pippin v.
Burlington Resources Oil and Gas Co., 440 F.3d 1186, 1195 (10th Cir. 2006).
20.

It is clear from the entirety of the evidence presented at trial that

Velasquez, as Pea’s supervisor, believed Pea did not have the skill set to perform in his
managerial position as evidenced by the many instances of substandard performance
set forth above. The relevant inquiry is not whether Velasquez’s reasons were wise,
fair, or correct, but whether Velasquez honestly believed his reasons and acted in good
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faith on those beliefs. Velasquez credibly testified, along with presenting supporting
evidence, that he believed that Pea was incapable of performing his job and acted on
that belief when he terminated Pea.
21.

Pea simply has not proven by a preponderance of the evidence that

Elavon’s stated exercise of business judgment in evaluating his performance was
actually a cover or pretext for racial or age bias. During his tenure at Elavon, Pea never
complained about race or age discrimination nor did he mention discrimination in his
post-termination letter to the U.S. Bank CEO. In fact, Pea never mentioned any sort of
discrimination until he filed his EEOC charge in March of 2014.
22.

Further, the Tenth Circuit has articulated a strong inference that the

employer’s stated reasons for acting against the employee are not pretextual where the
employee was hired and fired by the same person within a relatively short time span.
Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1182 (10th Cir. 2006) (internal citation
omitted) (employee terminated 10 months after being hired, evidence of pretext did not
dispel the same actor inference). Here, Velasquez made the decision to both to hire
and fire Pea in a period of 15 months. There was simply no evidence presented that
Velasquez developed some discriminatory motivation during that period of time.
23.

In conclusion, having carefully weighed the evidence, Pea failed to prove

by a preponderance of the evidence that his race was a motivating factor in Elavon’s
decision to terminate his employment.
24.

Further, Pea failed to prove by a preponderance of the evidence that

Elavon would not have terminated his employment but for Pea’s age.
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25.

There is simply insufficient evidence to support these claims along with

any claim of pretext.
IV.

CONCLUSION
Based the above findings of fact and conclusions of law, Defendants did not

discriminate against Plaintiff when they terminated his employment. Accordingly, it is
ORDERED that judgment shall enter in favor of Defendants and against Plaintiff
on both his race discrimination claim and his age discrimination claim. It is
FURTHER ORDERED that this matter is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that Defendants are awarded their costs to be taxed by
the clerk of the court in the time and manner prescribed in Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1.
Dated: September 6, 2017
BY THE COURT:

/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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