Wilmore v. Savvas Learning Company LLC

Filing 171

MEMORANDUM AND ORDER granting 128 Motion for Summary Judgment; overruling 163 Objection to Order of Magistrate Judge. Signed by District Judge Toby Crouse on 11/22/2024. (kmc)

In the United States District Court
for the District of Kansas
_____________
Case No. 22-cv-02352-TC
_____________
BRENDA WILLMORE,
Plaintiff

v.
SAVVAS LEARNING COMPANY, LLC,
Defendant

_____________
MEMORANDUM AND ORDER
Brenda Willmore sues her former employer, Savvas Learning
Company, LLC, asserting that Savvas unlawfully terminated her because of her age and gender. Doc. 125. There are two pending motions:
Savvas’s request for summary judgment on both claims, Doc. 128, and
Willmore’s objection to the Magistrate Judge’s denial of her request for
an evidentiary hearing, Doc. 163. For the following reasons, Savvas’s
motion is granted, and Willmore’s objection is overruled.
I
A
Summary judgment is proper under the Federal Rules of Civil Procedure when the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “‘material’ if it might
affect the outcome of the suit under the governing law.” Janny v. Gamez,
8 F.4th 883, 898–99 (10th Cir. 2021) (quoting Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997)). And disputes over material facts are
“‘genuine’ if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 898 (quoting Allen, 119 F.3d
at 839). Disputes—even hotly contested ones—over facts that are not
essential to the claims are irrelevant. Indeed, belaboring such disputes
undermines the efficiency Rule 56 seeks to promote.

1

At this stage, the parties must identify material facts by reference
to “pleadings, depositions, answers to interrogatories, and admissions
on file, together with . . . affidavits, if any.” Sanderson v. Wyo. Highway
Patrol, 976 F.3d 1164, 1173 (10th Cir. 2020) (citation and internal quotation marks omitted); see also D. Kan. R. 56.1(d). The court “construe[s] the factual record and reasonable inferences therefrom in the
light most favorable to the nonmovant.” Janny, 8 F.4th at 899 (quoting
Allen, 119 F.3d at 839–40). That said, the nonmoving party cannot create a genuine factual dispute by making allegations that are purely conclusory, id., or unsupported by the record as a whole. Scott v. Harris, 550
U.S. 372, 380 (2007); see also Heard v. Dulayev, 29 F.4th 1195, 1202 (10th
Cir. 2022).
The moving party bears the initial burden of showing the absence
of any genuine issue of material fact and entitlement to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant
Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). Once the
moving party meets its burden, the burden shifts to the nonmoving
party to demonstrate that genuine issues as to those dispositive matters
remain for trial. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137.
B
This is an employment discrimination case. In short, Willmore
contends that Savvas unlawfully terminated her because of her age and
gender. The following reflects the context in which this lawsuit arose.
Savvas is a “learning solutions company that develops and publishes educational materials in literacy, math, science, and the humanities disciplines.” Doc. 129 at 2, ¶ 1.1 It does so by way of publishing
and selling materials in textbook and online digital platforms for preK through 12th grade students. Id. It works with various school districts across the country, including two of the largest in the state of
Kansas, Derby School District and Blue Valley School District. Id. at
5–6.
Willmore worked at Savvas and its predecessor companies for over
20 years, from July 1999 to May 2021. Doc. 125 at ¶ 2.a.i. At the time
of her firing, she was the only Account Manager for the State of Kansas and 59 years old. Id. at ¶ 2.a.iii; Doc. 129 at 3, ¶ 8. The parties seem
1 All document citations are to the document and page number assigned in

the CM/ECF system.

2

to generally agree that Willmore was responsible for selling Savvas’s
products to school districts in Kansas, meeting sales targets, and developing and supporting customer relationships to increase future
sales. See generally Doc. 125 at 11 (describing Savvas’s contentions). Her
direct supervisor when she was terminated was Mica Lesser, who reported to James Lippe. Doc. 125 ¶ 2.a.iv; Doc. 129-2 at 14.
For years, Savvas had concerns about Willmore’s performance.
Her sales performance frequently fell below expectations. In 2017,
2018, and 2020, Willmore failed to meet her annual sales performance
goals. Doc. 129 at 5, ¶ 22. And for 2021, she was not projected to come
anywhere close to meeting her sales goal. Id. But her sales performance
was not always poor: In 2019, she received Savvas’s Pinnacle Award
for exceeding her sales quota by over 200%. Doc. 125 ¶ 2.a.ii. In addition, Willmore had “issues working with specialists on [her] team.”
Doc. 129 at 5, ¶ 21. Savvas’s specialists complained to Willmore’s supervisor, Lesser, about Willmore’s “lack of organization, customer relationships and her general overall business acumen.”2 Id.
And Savvas received negative feedback concerning Willmore from
some of its largest Kansas customers. In 2018, for example, a Blue
Valley School District Curriculum Director, Jennifer Luzenske, complained to Lesser that Willmore was unprofessional, unresponsive, and
that she had incorrectly quoted an order for Blue Valley. Doc. 129 at
5–6, ¶ 23. Luzenske asked not to work with Willmore any longer, and
Savvas removed Willmore from the Blue Valley account. Id. at ¶ 24.
Two years later, Willmore reached out to Luzenske offering a product
quote. Id. at ¶ 25. Luzenske replied to Willmore that Blue Valley had
been working directly with Lesser and planned to continue doing so.
Id. Willmore replied to Luzenske, stating that Lesser was “always willing to jump in and help,” but Willmore would be Blue Valley’s “main
point of contact.” Id. Luzenske then forwarded Willmore’s email to
Lesser, who replied to Luzenske that “this is being taken care of internally.” Id. Luzenske replied to Lesser that having Willmore “as our representative is a deal breaker for us. We have not changed our position
on that.” Id.

2 Nothing in the record explains who specialists are or what they do other

than they are “below sales rep.” Doc. 140-7 at 5. In context, it appears that
they may be internal colleagues. Doc. 129-9 at 4 (describing specialists that
complained about working with Willmore).

3

Willmore also had issues working with another Savvas customer,
the Derby School District. On April 20, 2021, Alexis Tatrow, Derby’s
Instructional Coordinator, emailed Lesser and Lippe. Doc. 129 at ¶ 26.
In that email, Tatrow explained that Derby was displeased with Willmore and asked that she be removed from the Derby account. Id. Tatrow also explained that Willmore had done a drop-in visit to introduce
herself to Derby on March 3, but that Derby had not spoken with
Willmore since that day. Id. This led Savvas to conclude that Willmore
had falsely reported on Savvas’s internal customer relationship management software that she had met with Derby because Tatrow said
those meetings never happened. Id. at ¶ 29. Lesser then told Willmore
not to contact Derby. Id. at ¶ 36.
Two weeks later, Savvas learned Wilmore had ignored Lesser’s direction not to contact Derby. In particular, M. Claravon Mathews,
Derby’s STEM Instructional Coordinator, emailed Lesser to complain
that Willmore had reached out to her the night before. Doc. 145 at ¶ 6.
Lesser replied that he would speak with Willmore, that he had told
Willmore that Derby would be working with someone else at Savvas,
and that he did not know why Willmore had reached out. Id.; Doc.
140-22 at 24. Mathews also told Lesser that Derby was interested in a
new Savvas product but had not heard anything about it. Doc. 129 at
¶ 29; Doc. 129-4 at 9–11. Again, Savvas checked Willmore’s records
and learned that Willmore had reported to Savvas that she had met
with Derby to discuss the new product. Doc. 129 at ¶ 29. This further
confirmed Savvas’s conclusion that Willmore had falsified her customer entries and failed to follow the Savvas CEO’s directive to discuss the new product with customers. Id. at ¶¶ 29, 32.
Despite the repeated direction not to contact Derby, Savvas
learned Willmore immediately ignored its latest command. The next
day, Mathews again emailed Lesser that “[Willmore] is continuing to
reach out to me. Have you chatted with her?” Doc. 145 at ¶ 6; Doc.
140-22 at 32. Lesser replied: “Yes, I have, thank you for letting me
know. I am sorry, it will stop, please let me know if it doesn’t.” Doc.
140-22 at 32. Lesser then emailed Willmore reminding her not to contact Derby. Id. at 34. Willmore replied to Lesser: “Ok, that explains
why [Derby] hasn’t returned my messages and calls.” Id.
On May 2, Lesser recommended Willmore’s termination to Savvas’s Human Resources officials. Doc. 129 at ¶ 19. He specified the
reasons for termination as Willmore’s issues working with Savvas specialists, her poor sales performance, her issues with Blue Valley, and
her issues with Derby. Id. at ¶¶ 20, 21, 22, 23. Sheri Jolcover, Savvas’s

4

HR Director, replied to Lesser that the information he had compiled
was not enough to approve Willmore’s termination. Doc. 145 at ¶ 5.
Lesser, Jolcover, Lippe (Lesser’s supervisor), and Savvas’s in-house
counsel, Debi Debiak, then met to discuss Willmore’s termination.
Doc. 129 at ¶ 33. At this meeting, Lippe decided based on everyone’s
input to approve Willmore’s termination. Id. Jolcover then sent Lesser
suggested points for his termination call with Willmore. Doc. 129 at
¶ 34. The suggestions outlined how Lesser should approach the call,
highlighting Willmore’s removal from Blue Valley, poor performance
and subsequent removal from Derby, and continued communications
with Derby. Id.
Lesser terminated Willmore on May 18.3 Doc. 125 ¶ 2.a.iii; Doc.
140-22 at 49. After the termination call, he sent Jolcover notes that
stated he told Willmore she was terminated for insubordination due to
reaching out to Derby and poor performance with Blue Valley. Doc.
129-11 at 3. At the time of her termination, Willmore was 59 years old.
Doc. 125 ¶ 2.a.iii. Savvas replaced Willmore with Brian Owen, a
younger man. Id. ¶ 2.a.
Willmore filed a charge with the Equal Employment Opportunity
Commission alleging discrimination on the basis of age and sex. Doc.
129-7. Savvas responded to the charge. Doc. 140-23.
Willmore then filed this case and asserted two claims. First, she
claims that Savvas terminated her because of her sex in violation of
Title VII, 42 U.S.C. § 2000e-2(a)(1). Doc. 125 at 2. Second, she claims
that Savvas terminated her because of her age in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1).
Doc. 125 at 2. Savvas requests summary judgment on both claims.
Docs. 128 & 129.

3 On the morning Savvas was to terminate Willmore, Tatrow sent Lesser an

email claiming that Willmore had again contacted Derby, this time sending
them a meeting invitation. Doc. 129 at ¶ 35. Lesser then emailed Willmore
asking her not to join the Derby meeting, Doc. 140-22 at 42, and forwarded
Derby’s email to Jolcover, Debiak, and Lippe as an illustration of “another
example of [Willmore] reaching back out to the customer, after being told 2
to 3 times she is not to reach out to them.” Id. at 39. Upon subsequent investigation, Savvas learned that someone other than Willmore, perhaps its marketing department, had sent the invitation. Id. at 44.

5

II
Savvas offers legitimate, non-discriminatory business reasons for
terminating Willmore, and Willmore has not demonstrated a genuine
dispute of material fact that Savvas’s reasons for terminating her were
pretextual. Accordingly, Savvas’s motion is granted. In addition, Willmore’s objection to the Magistrate Judge’s ruling on a discovery issue
is overruled.
A
Willmore contends that she was terminated because of her gender
and age in violation of Title VII and the ADEA. Lacking any direct
evidence of intentional discrimination, she relies on circumstantial evidence to support her claims.4
A Title VII sex discrimination or an ADEA age discrimination
claim based on circumstantial evidence proceeds through the McDonnell Douglas framework. Bennett v. Windstream Communications, Inc., 792
F.3d 1261, 1266 (10th Cir. 2015); Timmerman v. U.S. Bank, N.A., 483
F.3d 1106, 1113 (10th Cir. 2007); see also Laul v. Los Alamos Nat’l Lab’ys,
765 F. App’x 434, 440 (10th Cir. 2019) (analyzing the plaintiff’s Title
VII and ADEA claims under McDonnell Douglas). Under that framework, a plaintiff bears the initial burden of establishing a prima facie
case of unlawful discrimination. DePaula v. Easter Seals El Mirador, 859
F.3d 957, 969 (10th Cir. 2017). If he or she does so, the burden shifts
to the defendant to articulate a “legitimate, nondiscriminatory reason”
for taking its adverse action. Id. at 970. If the defendant satisfies its
burden, the burden then shifts back to the plaintiff to prove that the
defendant’s proffered reasons were pretextual—i.e., “not the true reason for the employment decision.” Id.
1. Savvas’s motion does not dispute that Willmore has made a
prima facie claim of discrimination. Doc. 129 at 14. Thus, the burden
shifts to Savvas to provide a legitimate, non-discriminatory reason for
its decision. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1193 (10th Cir.
2018).

4 Neither party contends there is any direct evidence of discrimination, and

each analyzes Willmore’s claims under the McDonnell Douglas test. See Doc.
129 at 14; Doc. 140 at 25.

6

The burden to establish a legitimate, nondiscriminatory reason is
“exceedingly light.” DePaula 859 F.3d at 970. On a motion for summary judgment, a defendant need only “articulate a reason for the [action] that is not, on its face, prohibited and that is reasonably specific
and clear.” Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,
1058 (10th Cir. 2020) (quotations omitted). It “need not persuade the
court that it was actually motivated by the proffered reasons.” Tex.
Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Savvas has met that burden. It asserts that it terminated Willmore
for poor performance, insubordination, and falsification of meeting
records. Doc. 129 at ¶ 18. The Tenth Circuit has held that all three of
these reasons are legitimate, non-discriminatory reasons to terminate
an employee. See Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th
Cir. 2005) (“Poor performance is a quintessentially legitimate and nondiscriminatory reason for termination.”); Ford v. Jackson Nat’l Life Ins.
Co., 45 F.4th 1202, 1216 (10th Cir. 2022) (same); Kendrick v. Penske
Transportation Services, 220 F.3d 1220, 1230 (10th Cir. 2000) (insubordination and falsification of records); see also Hamilton v. Boise Cascade Express, 280 F. App’x 729, 732 (10th Cir. 2008) (employer’s proffered
non-discriminatory reason was that it terminated employee for timecard fraud). These reasons are not facially discriminatory and are “reasonably specific and clear.” Frappied, 966 F.3d at 1058 (quoting
E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316 n.4 (10th Cir. 1992)).
Willmore’s counterarguments are unpersuasive. She essentially
seeks to challenge the merits of the reasons Savvas identified for her
termination. Doc. 140 at 26–31. These arguments are immaterial at this
stage of the proceedings because a defendant “does not . . . need to
litigate the merits of the reasoning, nor does it need to prove that the
reason relied upon was bona fide, nor does it need to prove that the
reasoning was applied in a nondiscriminatory fashion.” Frappied, 966
F.3d at 1058 (quoting Flasher Co., 986 F.2d at 1316 n.4). Rather, Savvas’s burden is “one of production, not persuasion; it can involve no
credibility assessment.” DePaula, 859 F.3d at 970 (quoting Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000)). As noted, Savvas has met this burden.
2. Once an employer satisfies its obligation to identify a lawful reason for the termination, the burden returns to the employee to show
that the reason for his or her termination is pretext for discrimination.
See Lincoln, 900 F.3d at 1193. 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.” Id. (quoting DePaula,

7

859 F.3d at 970). In other words, a plaintiff may show that the defendant’s reason is “so incoherent, weak, inconsistent, or contradictory that
a rational factfinder could conclude [it is] unworthy of belief.” EEOC
v. C.R. England, Inc., 644 F.3d 1028, 1039 (10th Cir. 2011); see also
Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019).
Pretext probes the true intentions of the defendant, so the focus is
limited to “whether the employer honestly believed its reasons and
acted in good faith upon them.” Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1119 (10th Cir. 2007). A 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.” Dewitt v. S.W. Bell Tele. Co., 845 F.3d 1299, 1307
(10th Cir. 2017) (quoting Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250
(10th Cir. 2006)). All facts are examined “as they appear to the person
making the decision, not as they appear to the plaintiff.” Debord v. Mercy
Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir. 2013) (citation and
internal quotations omitted) (emphasis in original). Any doubts concerning pretext are resolved in the plaintiff’s favor, but conjecture and
bare allegations are not enough to show pretext. Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1267 (10th Cir. 2007).
Willmore offers three primary arguments for why Savvas’s justifications are pretextual. Doc. 140 at 32–39. None have merit.
First, she argues that “the people involved in Plaintiff’s termination
cannot agree on the reason Plaintiff was fired.” Doc. 140 at 32. For
example, she argues that Debiak claimed Willmore was fired for contacting Derby, but Lippe claimed she was fired for falsifying documents and failing to contact clients, and Jolcover claimed she was fired
for her inability to work with Blue Valley. Doc. 140 at 32–33.
These are not inconsistencies. They are multiple and specific examples of Savvas’s dissatisfaction with Willmore’s job performance
that are documented by the record. For instance, Lesser cited Willmore’s poor sales performance, poor handling of Blue Valley, poor
handling of Derby, and falsification of Savvas records concerning her
sales efforts as the reasons for termination. Doc. 129 at ¶ 19. Jolcover’s
proposed talking points for Lesser noted Willmore’s poor handling of
the Derby account, poor handling of the Blue Valley account, and insubordination by contacting Derby. Id. at ¶ 34. And during the termination call, Lesser informed Willmore that she was terminated because
of her insubordination, “but also other factors were taken into account, [s]uch as other accounts in Kansas like Blue Valley School

8

District asking for her removal from their account.” Doc 129-11 at 3.
All of these specific examples support Savvas’s proffered reason that
they terminated her for poor performance, insubordination, and falsification of employment records. See Piercy v. Maketa, 480 F.3d 1192,
1201 (10th Cir. 2007) (finding no inconsistency when the decision to
terminate was based a multitude of evidence of the employee’s infraction); Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005)
(noting that “the mere fact that the [employer] has offered different
explanations for its decision does not create a genuine question of pretext”); see also Litzsinger v. Adams Cnty. Coroner’s Off., 25 F.4th 1280, 1291
(10th Cir. 2022) (“[P]retext cannot be established by the mere fact that
the employer has offered different explanations for its decision.”)
(quotations marks omitted).
Willmore attempts to controvert these facts by arguing that
Lesser’s termination letter and Jolcover’s talking points are inadmissible as unauthenticated hearsay. Doc. 140 at 13, 22. This effort to controvert the facts fails. Evidence need not be submitted in admissible
form so long as its contents would be admissible. Argo v. Blue Cross and
Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). Based
on Lesser’s sworn testimony, it appears likely that the letter and the
talking points, along with their contents, would be admissible business
records. See Fed. R. Evid. 803(6); United States v. Ary, 518 F.3d 775, 786
(10th Cir. 2008); see also Doc. 145-4 at 10–11; Doc. 145-5 at 16. (authenticating the documents). But even so, it is not entirely clear that
the documents are hearsay because they are not offered “to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c)(2); see United States v.
Brinson, 772 F.3d 1314, 1322 (10th Cir. 2014) (noting that if a statement
is “not offered for its truth, the statement is not considered hearsay”).
Rather, the documents reflect Savvas’s then-existing beliefs about Willmore’s performance. See Zamora v. Bd. of Educ. for Las Cruces Pub. Sch.,
553 F. App’x 786, 790 (10th Cir. 2014) (citing Faulkner v. Super Valu
Stores, Inc., 3. F.3d 1419, 1434 (10th Cir. 1993)) (finding that a document was not hearsay because it was offered to demonstrate that the
employer believed there were legitimate reasons for its decision); cf.
Fester v. Farmer Bros. Co., 49 F. App’x 785, 789 (10th Cir. 2002) (finding
that the district court abused its discretion by excluding a report as
hearsay that was offered to show the employer’s state of mind in making the termination decision); see also Piercy, 480 F.3d at 1200–01 (noting
that the employer’s “good faith perception of the employee’s performance” is what is relevant).

9

Willmore also attempts to controvert the facts surrounding her
poor performance. Doc. 140 at 1, ¶ 1. She argues that she did not perform poorly, that she exceeded her sales goals in 2019, and that her
2020 performance review noted she had a “successful year.” Id. While
this is all true, the fact that she had performance issues is also true. It
is uncontroverted that Willmore failed to meet her sales goals in 2018,
2019, and 2020, and that she was not even close to meeting her goals
2021. Doc. 129 at ¶ 22. And, to make matters worse, it is also uncontroverted that Blue Valley and Derby did not want to work with Willmore because of her poor performance. Doc. 129 at ¶¶ 25, 26.
Willmore argues that it is “disputed that Derby was upset with
Plaintiff” because Jolcover noted in her suggested talking points that
“Derby was very upset after being informed that . . . Plaintiff would no
longer be their account manager.” Doc. 140 at 3 ¶ 5. That selective
quotation does not withstand scrutiny. When reading the language
Willmore quotes in context with the entire document, it is clear that
Derby remained upset even though Willmore would no longer be their
account manager, not because of that fact. See Doc. 129-10 at 4. Moreover, the record is replete with evidence that Derby’s (and Blue Valley’s)
displeasure was with Willmore specifically. See Doc. 140-22 at 1, 6, 32.
And just because Willmore’s performance was not universally poor
does not mean it was not mostly poor as the record confirms. See Argo,
452 F.3d at 1203–04 (finding no pretext when employee had missed
yearly performance goals but had “exceeded other performance goals”
because the employer is “free to conclude that a long series of missed
goals in one area justifies termination, notwithstanding adequate or
even strong performance in other areas”).
The Tenth Circuit decision on which Willmore relies, Fassbender v.
Correct Care Solutions, LLC, 890 F.3d 875 (10th Cir. 2018), actually undermines her position. In that case, the Tenth Circuit found the employer’s vague, unspecific, and inconsistent reasons for termination
problematic. Fassbender, 890 F.3d at 887. The defendant had vaguely
told the plaintiff that she was terminated because of the “severity of
[the] offense, without elaborating on which of [the plaintiff’s] specific
acts led to this conclusion.” Id. In one day, the plaintiff was given two
different reasons for termination by different people. Id. And at the
summary judgment stage, the defendant abandoned its prior explanations and proffered yet another reason. Id. That is different from Willmore’s termination: Savvas has consistently maintained that it terminated Willmore for repetitive, numerous, and specific performance
and insubordination issues. See Docs. 129-9, 129-10, 129-11, 140-23.

10

Willmore points to no evidence that Savvas “has changed its explanation under circumstances that suggest dishonesty or bad faith.”
Litzsinger 25 F.4th at 1291 (quoting Twigg v. Hawker Beechcraft Corp., 659
F.3d 987, 1002 (10th Cir. 2011)).
Second, Willmore argues that Savvas’s proffered reasons are pretextual because they are implausible. Doc. 140 at 33. Implausibility is
shown, she posits, because “before firing an employee for poor performance, there would need to be some documentation in the file communicating to the employee that he or she is not performing adequately,” yet she “was not counseled, disciplined or terminated for anything to do with [Blue Valley].” Id. at 33–34. She also argues that one
of the alleged insubordination incidents—contacting Derby on May
18—is implausible because “[Savvas] knew, before it communicated
the termination to Plaintiff, that Plaintiff did not send the May 18,
2021, email invite.” Id. at 34. And as to the failure to discuss the new
product with Derby and the falsification of her sales activities, she argues that she did discuss the product with Derby and did not falsify
her meeting entries. Yet, the material evidence says otherwise.
To begin with, Willmore points to no evidence establishing that it
was Savvas’s policy to document an employee’s poor performance in
her file before termination. Contra Doc. 140 at 33. And the law certainly
does not require any, permitting an employer to fire an at-will employee, such as Willmore, without cause. See Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1170 (10th Cir. 2007) (quoting
Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004))
(“The relevant inquiry is not whether the employer’s proffered reasons
were wise, fair or correct.”); Archuleta v. Colorado Dep’t of Institutions, Div.
of Youth Servs., 936 F.2d 483, 487 (10th Cir. 1991) (“Title VII does not
ensure that employees will . . . be discharged only for meritorious reasons. Although the dismissal of an employee without cause may contribute to an inference of unlawful discrimination, it does not require
such a finding.”). But even if Savvas had deviated from its policy or
established procedures to have a certain amount of documentation in
an employee’s file, that would not necessarily suggest implausibility.
Kincaid v. Unified Sch. Dist. No. 500, Kansas City, Kansas, 94 F.4th 936,
949 (10th Cir. 2024) (citing Fassbender, 890 F.3d at 889) (“[A]n inference of pretext does not follow from every departure from standard
procedure.”); see also Fuller v. Dep’tof Child. & Fams., 805 F. App’x 601,
606 (10th Cir. 2020) (citing Medlock v. United Parcel Serv. Inc., 608 F.3d
1185, 1192–93 (10th Cir. 2010)) (noting that a business reason is not

11

pretextual merely because it was made without reference to a preexisting formal policy).
There is an even bigger problem with Willmore’s position. The
record reflects that Savvas had ample reasons to terminate Willmore:
Her sales performance was poor for several years, Blue Valley and
Derby, two of the largest school districts in the State of Kansas, did
not want to work with her, and Savvas believed she was misrepresenting her sales efforts. Doc. 129 at ¶ 19. Willmore does not explain why
this is insufficient. See Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136,
1146 (10th Cir. 2009) (finding no pretext for an adverse employment
decision based on a record of poor performance); Argo, 452 F.3d 1193,
1202 (10th Cir. 2006) (same); Brown v. Unified Sch. Dist. No. 501, 822 F.
App’x 710, 714 (10th Cir. 2020) (same).
And her effort to establish implausibility concerning the May 18
meeting invite also fails. Contra Doc. 140 at 34. She claims Savvas
learned, through a subsequent investigation, that Willmore was not responsible for sending what might have been an automated invitation.
But that is not the proper focus: The focus is on what the employer
believed at the time the decision was made. Young, 468 F.3d at 1250
(citing Rivera, 365 F.3d at 924–25) (explaining that the relevant inquiry
is “whether the employer's stated reasons were held in good faith at
the time of the discharge, even if they later prove to be untrue”). The
uncontroverted evidence establishes that Lesser, relying on an email
from Tatrow, Blue Valley’s Curriculum Director, concluded that Willmore had (once again) contacted Derby in immediate and direct conflict with Tatrow’s request that Willmore no longer contact her and
Lesser’s instruction to Willmore to that effect. Doc. 129 at ¶ 38. Willmore has no evidence to contradict Lesser’s then-existing belief. The
fact that Lesser’s understanding of this instance (which arose on the
day Willmore was to be terminated) was later shown to be mistaken
does not establish pretext. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299,
1311 (10th Cir. 2017) (quoting Medley v. Polk Co., 260 F.3d 1202, 1208
(10th Cir. 2001) (noting that “when an employee is discharged because
of an employer’s honest mistake, federal anti-discrimination laws offer
no protection”).
Savvas’s uncontradicted, well-founded belief that Willmore was
manipulating her sales activity undermines her third implausibility argument. Contra Doc. 140 at 34–35. Willmore attempts to controvert
this fact by arguing that she did not falsely report her sales data. Id. But
as stated above, the question is what Savvas believed at the time it terminated her. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir.

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2010). Indeed, when considering whether the proffered reason for the
termination was pretext, the law makes plain that the focus is the facts
as they appeared to the person making the decision to terminate at the
time the decision was made. Kendrick v. Penske Transp. Servs., Inc., 220
F.3d 1220, 1231 (10th Cir. 2000). And the evidence is uncontroverted
that Lippe, who made the decision to terminate Willmore, believed
Derby’s contention that Willmore failed to discuss the new products
and, therefore, that Willmore’s self-recorded meeting data was false.
Doc. 129-4 at 10–11. Evidence that Savvas should not have made the
termination decision because Willmore does not believe that she had
done those things is insufficient to impugn Savvas’s credibility. Dewitt,
845 F.3d at 1307 (quoting Simmons v. Sykes Enterprises, Inc., 647 F.3d
943, 948 (10th Cir. 2011)); see also Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1119 (10th Cir. 2007) (quoting Piercy, 480 F.3d at 1200) (“Even
a mistaken belief can be a legitimate, non-pretextual reason for an employment decision.”).
Third, Willmore argues that pretext may be inferred from the way
that Savvas treated similarly situated employees. Doc. 140 at 37–38. To
succeed on her contention, Willmore must have evidence that the identified employees were both similarly situated and have engaged in misconduct of comparable seriousness. See McGowan v. City of Eufala, 472
F.3d 736, 745 (10th Cir. 2006) (quoting Kendrick, 220 F.3d at 1230)
(“[E]ven employees who are similarly situated must have been disciplined for conduct of ‘comparable seriousness’ in order for their disparate treatment to be relevant.”); Cooper v. Wal-Mart Stores, Inc., 296 F.
App’x 686, 694 (10th Cir. 2008) (citing Riggs, 497 F.3d at 1121 n.4)
(noting that the plaintiff has the burden of producing evidence that
employees were similarly situated).
Willmore points to younger and/or male co-workers Brian Owen,
Paul Richins, Leigh Ann Smith, and Matthew Heaps as examples of
disparate treatment that give rise to an inference of pretext. Doc. 140
at 37–39. But each of these individuals is materially distinguishable
from Willmore. Take Owen as an example. Savvas received a single
verbal complaint from the Kansas City School District about Owen.
Doc 145 at ¶ 7. Owen’s supervisor spoke to the complainant and realized that there was no corroboration or documentation, that the complaint was speculative, and the matter died there. Id. Conversely, Savvas received multiple complaints about Willmore’s poor performance
from at least two customers who said they did not want to work with
her, she was not meeting her sales goals, and Savvas also believed she

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was being directly insubordinate by disobeying directives not to contact the dissatisfied districts. Doc. 129 at ¶¶ 20, 21, 22, 23.
So, too, with Richins and Heaps. Willmore notes that Savvas
placed both Richins and Heaps on a performance improvement plan
before terminating them. Doc. 140 at 37–38. It is not obvious how
their treatment is materially different—all three were terminated for
poor performance. And Willmore has not explained why placement on
a performance improvement plan prior to termination is materially different treatment from simply being terminated without being placed
on such a plan. See Herrera v. United Airlines, Inc., 754 F. App’x 684, 692
(10th Cir. 2018) (citing Swackhammer, 493 F.3d at 1168) (noting that
differential treatment must not be “trivial or accidental”). But assuming it could be construed as a difference in treatment, she has not established that Richins and Heaps are good comparators. Willmore was
an Account Manager whose two larger accounts refused to do business
with her, her performance was below expectations for several years,
she was believed to be falsifying her sales efforts, and she had been
insubordinate to her superiors. See generally Doc. 145 at 5–6, ¶ 14 (citing
deposition testimony summarizing the differentiations). There is no
evidence to suggest that Richins and Heaps held similar positions or
that their violations were comparable to Willmore’s. As a result, their
treatment does not give rise to an inference of pretext. See Timmerman
v. U.S. Bank, N.A., 483 F.3d 1106, 1121 (10th Cir. 2007) (rejecting a
comparison to an employee with different transgressions).
And as to Smith, not only did her conduct failures fail to approach
the magnitude of Willmore’s, but she had a different supervisor. She
is, therefore, not similarly situated for comparison purposes with Willmore. See Kendrick, 220 F.3d at 1233; Rivera 365 F.3d at 922 (quoting
Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (noting
that similarly situated employees are those who, among other things,
“deal with the same supervisor”); E.E.O.C. v. Flasher Co., Inc., 986 F.2d
1312, 1320 (10th Cir. 1992) (“Sometimes apparently irrational differences in treatment between different employees that cannot be explained on the basis of clearly articulated company policies may be explained by the fact that the discipline was administered by different
supervisors.”).
Put simply, neither Owen, Richins, Heaps, nor Smith were comparable to the repeated pattern of substandard conduct that Willmore
had shown. As a result, Willmore cannot rely on their experiences to
support her claim of pretext. See, e.g., Salguero v. City of Clovis, 366 F.3d
1168, 1177 (10th Cir. 2004) (finding that allegations of disparate

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discipline did not suffice to show pretext because the facts indicated
significant differences in conduct between plaintiff and the other employees); Cooper, 296 F. App’x at 694 (finding no pretext because none
of the other employees had “as many findings of misconduct” as the
plaintiff did and none of the allegations against the other employees
involved offenses “as serious” as the plaintiff’s).
B
After the close of discovery, Willmore filed a Motion for Spoliation
Sanctions and Request for Hearing on the Same. Doc. 155. The Magistrate Judge denied that request to the extent that it asked for an evidentiary hearing. Doc. 160; see also Doc. 170 (denying Willmore’s motion for spoliations sanctions). Willmore then objected to the Magistrate Judge’s order denying her an evidentiary hearing. Doc. 163. That
objection, like her previous objections, is based on ad hominem and
unsupported personal attacks against the Magistrate Judge. See Doc.
163 at 1 (noting that the Magistrate Judge’s order “continues the perception that the Magistrate is going out of her way to penalize Plaintiff
and her counsel”); see also Doc. 118 at 2–3 (denying motion that made
similar ad hominem allegations); Doc. 133 at 1–2 (same). After reviewing the Magistrate Judge’s order, the pertinent record giving rise to
Willmore’s objection, the relevant rules of civil procedure, and the applicable caselaw, Willmore’s objection is without merit. Accordingly,
her objection is overruled.
III
For the foregoing reasons, Savvas’s Motion for Summary Judgment, Doc. 128, is GRANTED, and Willmore’s objection, Doc. 163,
is OVERRULED.

It is so ordered.

Date: November 22, 2024

s/ Toby Crouse
Toby Crouse
United States District Judge

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