Warrington v. Department of Homeland Security et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-02792-NYW-NRN
SCOTT THOMAS WARRINGTON,
Plaintiff,
v.
KRISTI NOEM, in her official capacity as Secretary of the DHS,
Defendant.
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 130)
N. REID NEUREITER
United States Magistrate Judge
In this employment discrimination case, Plaintiff Scott Thomas Warrington
(“Plaintiff” or “Mr. Warrington”) has sued the Department of Homeland Security (“DHS”)
asserting that he was terminated from his job as a security officer with the TSA at the
Durango, Colorado airport because of his advanced age. Defendant Kristi Noem, in her
official capacity as Secretary of DHS, has filed for summary judgment. ECF No. 130.
Defendant’s motion is before the Court pursuant to an Order, ECF No. 148, issued on
June 20, 2025, by Judge Nina Y. Wang referring the motion. Plaintiff filed his response
on September 1, 2025. ECF No. 147. Defendant filed her reply on September 15, 2025.
ECF No. 150. The Court heard oral argument on November 20, 2025. ECF No. 162.
Plaintiff, with leave of Court, filed a sur-reply on December 4, 2025. ECF No. 163.
The Court has taken judicial notice of the Court file, considered the applicable
Federal Rules of Procedure and case law. Now, being fully informed and for the
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reasons discussed below, the Court recommends the Defendant’s motion for summary
judgment be GRANTED.
I. 	BACKGROUND1
Defendant’s motion for summary judgment includes a separate statement of
undisputed material facts (“SUMF”) with citations to the supportive evidence. See ECF
No. 130. In his opposition, Mr. Warrington responds to each fact with either an
admission or denial. See ECF No. 147. To the extent that Mr. Warrington either admits
or does not meaningfully deny the factual allegations put forth in the SUMF, the Court
will consider Defendant’s facts undisputed for the purposes of this motion.
Mr. Warrington’s sole remaining claim in the operative pleading, ECF No. 11, is
for age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621, et seq. Mr. Warrington was employed by the Transportation Security
Administration (“TSA”) as a Transportation Security Officer (“TSO”) at the Durango-La
Plata County Airport (“DRO”) in Durango, Colorado from September 7, 2014 through
January 16, 2020. Id. ¶ 1. He claims that TSA unlawfully terminated him because of his
age. At the time Mr. Warrington was removed from his employment in January 2020, he
was 49 years old. SUMF ¶ 2. Mr. Warrington’s second-level supervisor was
Transportation Security Manager ("TSM") Daniel Bontrager, and his third-level
supervisor was Deputy Assistant Federal Security Director for Screening Annie
Velasco. Id. ¶ 3.
In May 2019, Mr. Warrington had formed a friendship with Shelly Corwin, a
female SkyWest Airlines employee at DRO. Id. ¶ 4. In June 2019, Mr. Warrington “went
1 All citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
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on a date” with Ms. Corwin. Id. ¶ 5. On June 28, 2019, Ms. Corwin expressed discomfort
with Mr. Warrington’s messages and indicated that she no longer wished to be friends.
Id. ¶ 7. Ms. Corwin’s text message read, “Your texts are creeping me out. You are
bombarding me. I was trying to be friends with you, but you want more than that and we
just hung out one time and you’re acting like this. I don’t believe you and I can be
friends. It is not comfortable for me.” Id.; ECF No. 130-3 at 10.
Despite this communication, Mr. Warrington continued to send text messages,
call, and leave voicemails on Ms. Corwin’s cell through July and August 2019. At least
four more times during this period, Ms. Corwin had to reiterate her request that Mr.
Warrington stop contacting her. See ECF No. 130-3, 9–15. Defendant has attached
documentation of these text message exchanges to its motion. The text messages are
all verified and signed by Mr. Warrington using his initials. Id. Additionally, in his
deposition, Mr. Warrington testified to having received several text messages from Ms.
Corwin asking him to stop contacting her. Warrington Dep., ECF No. 130-4. On one
occasion, Mr. Warrington, for reasons unknown, handed a fishing lure to Ms. Corwin’s
colleague to give to her at work. She returned the lure to Mr. Warrington and again told
him to stop. ECF No. 130-1 at 18.
In September 2019, Ms. Corwin filed a harassment complaint against Mr.
Warrington. Bontrager Decl., ECF No. 130-2 ¶¶ 8–9. Mr. Bontrager subsequently
learned of Mr. Warrington’s conduct towards Ms. Corwin and spoke with her to confirm
that the complaint about Mr. Warrington’s conduct was true. Id. After speaking with Ms.
Corwin, Mr. Bontrager issued Mr. Warrington a Cease-and-Desist Directive on
September 29, 2019. Id. at 10. The Cease-and-Desist Directive cited TSA’s “Anti-
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Harassment Policy” and warned Mr. Warrington that “[a]ny conduct or actions on your
part that are perceived as harassment, inappropriate conduct or retaliation will not be
tolerated.” Id.; ECF No. 130-2 at 17 (Cease-and-Desist Directive). On September 27,
2019, TSA also initiated a fact-finding inquiry into the incident and appointed Darrell
Abbott, a TSM supervisor, as the fact-finder. SUMF ¶¶ 19–20. As part of his
investigation, Mr. Abbott spoke with both Mr. Warrington and Ms. Corwin and reviewed
text messages that were sent between them. Id. ¶ 24.
In an investigative report dated October 25, 2019, Mr. Abbott concluded that
“harassing behavior [by Mr. Warrington] as defined by the Department of Homeland
Security and Transportation Security Administration ha[d] occurred.” Abbott Decl., ECF
No. 130-3 ¶ 13. Mr. Abbott found that Mr. Warrington had engaged in harassing
behavior because “he continued to try to talk to Ms. Corwin at work and send her text
messages after she had repeatedly asked him not to contact her.” Id. On November 21,
2019, after TSA’s fact-finding had concluded, Mr. Bontrager issued Mr. Warrington a
“No Contact Order.” SUMF ¶ 27; ECF No. 130-2 at 20 (No Contact Order). The No
Contact Order instructed Mr. Warrington “to immediately cease and desist from any
verbal or physical offensive or unwanted conduct” and “to have no contact directly or
indirectly with Shelly Corwin until such time you are notified in writing that this order is
cancelled” Id. at 20. The No Contact Order further instructed Mr. Warrington that “any
incidental contact must be limited to the greatest extend possible, perfunctory, and
professional.” Id. The bottom of the No Contact Order contains Mr. Warrington’s
signature, acknowledging receipt. Id. Six days after receiving this order, on November
27, 2019, a call was placed by Mr. Warrington to Ms. Corwin, but she did not answer.
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Mr. Warrington alleges this call was an accidental “butt-dial” and that he “ended the call
immediately.” ECF No. 11 at 5. Nonetheless, on December 9, 2019, Mr. Bontrager, Mr.
Warrington’s supervisor, issued him a Notice of Proposed Removal, charging Mr.
Warrington with two bases for terminating his employment. SUMF ¶ 30; ECF No. 130-2
at 8 (Notice of Proposed Removal).
The notice charged Mr. Warrington with “Conduct Unbecoming” based on his
harassment of Ms. Corwin from May 2019 to September 2019, in violation of TSA’s
Anti-Harassment Policy. Id. TSA’s Anti-Harassment Policy provides that “TSA is
committed to maintaining a work environment free from harassing behavior for all of its
employees.” SUMF ¶ 32. It further prohibits any “behavior that has the effect of creating
an intimidating, hostile, offensive, or abusive work environment,” including sexual
harassment. Id. ¶ 33. It prohibits harassment “of any. . . individual with whom TSA
employees come into contact by virtue of their work for TSA.” Id. ¶ 34.
The second basis for removal was Mr. Warrington’s “Failure to Follow Instruction”
for calling Ms. Corwin on November 27, 2019, in violation of the No Contact Order and
in violation of TSA’s Code of Conduct. Id. ¶ 35. TSA’s Code of Conduct requires
employees to act “in a manner that does not adversely reflect on TSA, or negatively
impact its ability to discharge its mission, cause embarrassment to the agency, or cause
the public and/or TSA to question [his] reliability, judgment, or trustworthiness.” ECF No.
130-2 at 9. It also states that TSA employees must “comply[] with directions and
instructions received from their supervisors” and “abid[e] by all laws, rules, regulations,
and other authoritative policies and guidance.” Id.
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In the 8-page long Notice of Proposed Removal, Mr. Bontrager wrote to Mr.
Warrington,
The poor judgement on display in this case was astounding in its scope;
between the time frame of April 2019 - November 2019 you have attempted
to make contact with [Ms. Corwin] through phone calls, text messages, and
in person. There is no factual dispute in this matter that Ms. Corwin had
absolutely no interest in maintaining contact with you and made it explicitly
clear that your calls and texts were absolutely unwanted and made her
uncomfortable. . . .and yet you continued to demand that she answer your
questions and insist that she give you a chance to establish a relationship
with her.
ECF No. 130-2 at 11. In another section, Mr. Bontrager wrote, “I also considered your
potential for rehabilitation. . . .Your conduct is so egregious that you cannot be
rehabilitated. Due to the egregious nature of your offense and the absolute erasure of
my confidence in you, I do not feel that any alternative sanctions would be appropriate
in your case.” Id. at 12. Mr. Bontrager went on to acknowledge Mr. Warrington’s
otherwise satisfactory work performance but concluded that this mitigating factor was
outweighed by the seriousness of the conduct. Id.
After receiving the Notice of Proposed Removal, Mr. Warrington submitted a
response to Ms. Velasco, who was responsible for the ultimate decision to terminate Mr.
Warrington’s employment. SUMF ¶ 41. On January 16, 2020, Ms. Velasco issued Mr.
Warrington a final Notice of Decision on Proposed Removal and removed Mr.
Warrington from employment with TSA. See ECF No. 130-1 at 15 (Notice of Decision
on Proposed Removal). Ms. Velasco concluded that Mr. Warrington should be removed
for two reasons: one, because she concluded that Mr. Warrington had harassed Ms.
Corwin despite repeated requests by Ms. Corwin asking Mr. Warrington to stop
contacting her; and two, because she found that Mr. Warrington had violated the No
Contact Order when he called Ms. Corwin’s cell on November 27, 2019. SUMF ¶¶
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44– 55. Although Mr. Warrington asserted the call was an “accident,” Ms. Velasco
concluded that his assertion “lack[ed] credibility” given his “persistent disregard of Ms.
Corwin’s repeated instructions to cease and desist over the course of many weeks.” Id.
¶ 46. In coming to this conclusion, Ms. Velasco declared that she “did not consider
Plaintiff’s age in any way when making [her] decision.” See Velasco Decl., ECF No.
130-1 ¶ 10.
At the time of Mr. Warrington’s removal in January 2020, DRO was experiencing
issues with overstaffing. As per Ms. Velasco’s declaration, DRO was authorized to have
“22.7 full-time equivalent positions,” but as of January 24, 2020, DRO had “25.8 full-time
equivalent positions filled.” Accordingly, DRO “was not authorized to hire additional
employees.” Id. at ¶ 35–40. Following Mr. Warrington’s removal, rather than filling the
position with a replacement employee, DRO reassigned three employees out of DRO to
other airports. Id. In May 2020, two employees transferred into DRO. After these
transfers, DRO still had 24 full-time equivalent positions filled as of June 2, 2020,
exceeding the authorized limit. Id. Accordingly, the airport was still overstaffed and was
not authorized to hire additional employees. It was not until 2021 that personnel attrition
at DRO brought staffing to below the target levels. The airport did not hire a new
employee until March 28, 2021, more than 14 months after Mr. Warrington’s removal.
Id. Ms. Velasco declares that this new hire was not made to “replace” Mr. Warrington,
but to bring staffing levels back up to the target level. Id.
In the operative pleading, Mr. Warrington claims that he heard from “coworkers
who reported the TSO to take [Mr.] Warrington’s place was under the age of 40 years;
therefore [Mr. Warrington] was replaced with someone outside of his age class.” ECF
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No. 11-1 at 1. However, Mr. Warrington does provide any evidence that corroborates
what he was allegedly told by his coworkers.
Mr. Warrington further claims that there were other employees who engaged “in
more serious conduct” but were not terminated. ECF No. 11-1 at 2. Mr. Warrington
claims that he personally witnessed “Tom Hamilton” sexually harass another employee,
and that Mr. Hamilton, rather than being fired for cause, was allowed to retire without
losing any retirement benefit. Mr. Warrington also claims that another employee named
Christopher Smith admitted to him that he had a permanent restraining order against his
ex-wife. Mr. Warrington asserts that he brought this information to Mr. Bontrager’s
attention, yet no adverse action was taken against Mr. Smith. Id. Ms. Velasco, in her
declaration, states that she has no knowledge of a “Tom Hamilton” at DRO working
under her supervision at any time. Velasco Decl. at ¶ 23–25. She also states that she is
familiar with Mr. Smith but was not aware of Mr. Warrington’s allegations of misconduct
by Mr. Smith at the time she made her decision to terminate Mr. Warrington. Id. Finally,
there is no evidence that “Tom Hamilton” was younger than Mr. Warrington. Mr. Smith
on the other hand is actually older than Mr. Warrington. This fact is not disputed. SUMF
¶ 59.
II. 	LEGAL STANDARDS
a. 	Pro Se Plaintiff
Mr. Warrington is proceeding pro se. The Court, therefore, “review[s] his
pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. U.S., 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted). However, a pro se litigant’s “conclusory allegations without
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supporting factual averments are insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume
that a plaintiff can prove facts that have not been alleged, or that a defendant has
violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of
Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also
Whitney v. N.M., 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply
additional factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments
or theories for the plaintiff in the absence of any discussion of those issues”). A
plaintiff’s pro se status does not entitle him to an application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
b. Summary Judgment
A motion for summary judgment serves the purpose of testing whether there is a
need for trial. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003),
White v. York Int’l. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Pursuant to Federal Rule of
Civil Procedure 56, summary judgment is appropriate when the motion “show[s] that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court’s determination depends
on whether there are any genuine, factual issues that can be “properly resolved only by
a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The moving party bears the initial burden of showing a factual basis for its
motion. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). “The moving party may carry
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its initial burden either by producing affirmative evidence negating an essential element
of the nonmoving party’s claim, or by showing that the nonmoving party does not have
enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). A judge need consider only the
cited materials, but may consider other materials in the record. Fed. R. Civ. P. 56(c)(3).
Once the movant properly supports a motion for summary judgment, the non-
moving party “may not rest on mere allegations or denials of his pleading, but must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
256. Unsupported and/or conclusory allegations do not establish an issue of fact
sufficient to defeat summary judgment. MacKenzie v. City and Cnty. of Denver, 414
F.3d 1266, 1273 (10th Cir. 2005); see also McVay v. W. Plains Serv. Corp., 823 F.2d
1395, 1398 (10th Cir. 1987).
III. 	ANALYSIS
To establish a claim under the ADEA, a plaintiff must prove that age was a but-
for cause of the challenged employment action. See Markley v. U.S. Bank Nat’l Ass’n,
59 F.4th 1072, 1081 (10th Cir. 2023); Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th
Cir. 2010) (federal-sector case). In the absence of direct evidence of age discrimination,
courts apply the three-step burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Okla. City Pub. Sch., 617 F.3d 1273,
1278 (10th Cir. 2010). At the first step of the analysis, a plaintiff must establish a prima
facie case of age discrimination. Id. If the plaintiff succeeds, “the burden of production
then shifts to the employer to identify a legitimate, nondiscriminatory reason for the
adverse employment action. Once the employer advances such a reason, the burden
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shifts back to the plaintiff to prove the employer’s proffered reason was pretextual.” Id.
(citation omitted).
As the Tenth Circuit recently summarized, in termination cases, the elements of a
prima facie age discrimination case are typically that the plaintiff was “(1) within the
protected class of individuals 40 or older; (2) performing satisfactory work; (3)
terminated from employment; and (4) replaced by a younger person, although not
necessarily one less than 40 years of age.” Frappied v. Affinity Gaming Black Hawk,
LLC, 966 F.3d 1038, 1056 (10th Cir. 2020). These “elements of a prima facie case
under the McDonnell Douglas framework are neither rigid nor mechanistic, [and] their
purpose is the establishment of an initial inference of unlawful discrimination warranting
a presumption of liability in plaintiff’s favor.” Id. (citing Adamson v. Multi Cmty.
Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)) (emphasis in original).
However, because Mr. Warrington was employed by TSA, his age discrimination
claim is governed by 29 U.S.C. § 633a(a), the federal-sector provision of the ADEA.
Section 633a(a) states that “[a]ll personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . shall be made free from any
discrimination based on age.” In Babb v. Wilkie, 589 U.S. 399 (2020), the Supreme
Court rejected the notion that this statutory provision “imposes liability only when age is
a ‘but-for cause’ of the personnel action in question.” Id. at 402. The Court held §
633a(a) “demands that personnel actions be untainted by any consideration of age.” Id.
As the Tenth Circuit recently observed, however, “Babb did not wholly eliminate the
requirement of but-for causation. It remains important in determining the appropriate
remedy.” Laber v. Hegseth, No. 23-3157, 2025 WL 1511795, at *6 (10th Cir. May 28,
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2025) (internal quotations and citations omitted). “[P]ost-Babb, a § 633a(a) plaintiff
‘must show that age discrimination was a but-for cause of the employment outcome’” to
obtain “reinstatement, backpay, compensatory damages, or other forms of relief related
to the end result of an employment decision.” Id. (quoting Babb, 589 U.S. at 413 ). Here,
the but-for standard applies because Mr. Warrington seeks backwards-looking relief in
the form of reinstatement, lost wages, compensatory damages, and liquidated
damages. ECF No. 11 at 8.
The court in Laber noted, “the Tenth Circuit has not yet addressed whether the
McDonnell Douglas burden-shifting framework still applies to federal-sector age
discrimination claims post-Babb” Id. at *6. However, Defendant argues, and the Court
agrees, that whether or not the McDonnell Douglas framework applies, Mr. Warrington
cannot demonstrate that his age was the but-for cause of his termination or, in other
words, “the factor that made a difference,” Jones, 617 F.3d at 1277.
There is no evidence in the record before the Court that would support the
inference that age played any role in the decision to terminate Mr. Warrington. The
removal process was triggered by a complaint of misconduct from another employee
who felt she was being harassed. This is not disputed. After the complaint was brought
to the attention of Mr. Bontrager, TSA opened an investigation into the harassment
allegations and hired Mr. Abbott as the independent fact-finder. Ms. Corwin provided
records of text messages and calls to Mr. Abbott in support of her complaint. Mr.
Warrington argues at several points in his response that the text messages Ms. Corwin
provided were manipulated or fabricated. ECF No. 147. He further argues that Ms.
Corwin admitted to manipulating text messages during a restraining order hearing. Id. at
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23. This is incorrect. As Defendant points out, Ms. Corwin stated only that there “were
so many texts [from Plaintiff] that [she] could not print them all” for the hearing. ECF No.
147 at 23. Furthermore, the documentation of the text messages provided by Defendant
was shown to and signed by Mr. Warrington. See ECF No. 130-3, 9–15. The relevant
question is whether TSA believed Ms. Corwin’s account of what occurred. See Pastran
v. K–Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000) (“[T]he pertinent question in
determining pretext is not whether the employer was right to think the employee
engaged in misconduct, but whether that belief was genuine . . . .”).
There is ample evidence in the record that shows that TSA genuinely believed
that Mr. Warrington had harassed Ms. Corwin in violation of their policy. Mr. Abbott
based his findings on the text message exchanges and his conversations with both Ms.
Corwin and Mr. Warrington. Abbott Decl. ¶ 12. His investigation found that Mr.
Warrington had sent Ms. Corwin twenty-two unanswered texts before Ms. Corwin
formally ended their friendship on June 28, 2019. ECF No. 130-3 at 17. He found that
even after Ms. Corwin told Mr. Warrington to stop, he sent nineteen more texts and
placed three calls. Id. After another set of fourteen texts, on July 10, 2019, Ms. Corwin
once again asked Mr. Warrington to stop contacting her and told him that she felt
harassed. Id. On July 18, 2019, Mr. Warrington stopped Ms. Corwin at work as she was
leaving and asked her if her daughter could watch his animals while on vacation. Ms.
Corwin declined and once again asked Mr. Warrington to stop contacting her. Mr.
Warrington went on to text her four more times that day. Id. These findings led Mr.
Abbott to conclude that “harassing behavior as defined by Department of Homeland
Security and Transportation Security Administration ha[d] occurred.” Id. In his
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declaration, Mr. Abbott attested, “I genuinely believed all facts stated in my report were
the truth. I did not intentionally misstate any fact, nor did I intentionally omit factual
information I believed to be relevant.” Abbott Decl. ¶ 15. Ms. Velasco, who made the
final termination decision, relied in large part on Mr. Abbott’s report. Velasco Decl. ¶ 8.
Mr. Warrington does not refute any of these findings. Rather, Mr. Warrington
argues that “the entire disciplinary investigation was fatally flawed due to a clear and
demonstrable conflict of interest.” ECF No. 147 at 22. Mr. Warrington argues that Mr.
Abbott was a “biased factfinder” because he was in Mr. Warrington’s “supervisory chain
for a week.” Id. at 23. He additionally argues that Ms. Velasco and Mr. Bontrager had
various conflicts of interest that compromised the integrity of the investigation and
disciplinary process. See generally ECF No. 163. The Court need not delve into the
merits of Mr. Warrington’s claims of bias, however, as they immaterial to the question of
whether age was the deciding factor that led to his termination.
[W]here a violation of company policy was reported through channels
independent from the biased supervisor, or the undisputed evidence in the
record supports the employer’s assertion that it fired the employee for its
own 	unbiased 	reasons 	that 	were 	sufficient 	in 	themselves 	to 	justify
termination, the plaintiff’s age may very well have been in play—and could
even bear some direct relationship to the termination if, for instance, the
biased 	supervisor 	participated 	in 	the 	investigation 	or 	recommended
termination—but age was not a determinative cause of the employer’s final
decision.
Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011). Even if Mr. Abbott
was indeed a “biased factfinder,” there is zero evidence that he was biased against Mr.
Warrington because of his age. Furthermore, as explained by the Tenth Circuit in
Simmons, a biased supervisor’s participation in the disciplinary process does not in and
of itself constitute evidence that age was the decisive factor in the personnel action.
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Mr. Warrington argues that TSA’s stated reasons for his termination were
pretextual because there were two other employees who engaged “in more serious
conduct” and “were not terminated with cause.” ECF No. 11-1 at 2. Pretext exists when
an employer “does not honestly represent its reasons for [the adverse action].” Miller v.
Eby Realty Group, LLC, 396 F.3d 1105, 1111 (10th Cir. 2005). Pretext may be
established by “showing that the proffered reason is factually false” or “by showing that
discrimination was a primary factor in the employer’s decision, which is often
accomplished by revealing ‘weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [explanation]. . . that a reasonable factfinder
could rationally find [it] unworthy of credence and hence infer that [a defendant] did not
act for the asserted nondiscriminatory reasons.’” Tabor v. Hilti, Inc., 703 F.3d 1206,
1218 (10th Cir. 2013) (quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217
(10th Cir. 2002)). The two alleged comparators that Mr. Warrington points to as
evidence of pretext are a “Tom Hamilton” and Mr. Smith. As previously explained, there
is no evidence that an individual by the name of “Tom Hamilton” was employed at DRO.
Ms. Velasco asserts,
I am not aware of any current or former TSA employee at DRO named ‘Tom
Hamilton.’ I am aware that Timothy Hamilton, a TSA employee currently
working in Iowa, previously worked at DRO from June 2019 until May 2020.
It does not appear that the Amended Complaint’s allegations about “Tom
Hamilton” are intended to refer to Timothy Hamilton, because (1) the
allegations concern conduct that occurred in 2017, before Timothy Hamilton
was employed by TSA at DRO . . . .
Velasco Decl. ¶ 23. With respect to Mr. Smith, there is no dispute that he was older than
Mr. Warrington. As Defendant points out, “TSA’s alleged better treatment of an
employee older than Plaintiff does not show that TSA discriminated against Plaintiff
based on his age.” ECF No. 130 at 19 (emphasis in original). Furthermore, there is no
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evidence that Ms. Velasco was aware of the allegations of misconduct against Mr.
Smith at the time she made her removal decision. See Doke v. PPG Indus., Inc., 118 F.
App’x 366, 369 (10th Cir. 2004) (explaining that where employer was unaware of other
employees’ misconduct, those employees were not similarly situated to the plaintiff to
show pretext).2 Accordingly, the Court does not find any pretext on this basis.
Mr. Warrington further argues that TSA’s failure to consider alternative and less
severe punishments than termination, such as relocating Mr. Warrington to a different
checkpoint or moving him to another shift, is evidence of pretext and that “a reasonable
jury could find that if the supervisor was deeply concerned about a hostile work
environment, he would have explored these common, less-drastic solutions.” ECF No.
147 at 22. This is not so. Mr. Warrington has provided no evidence that other
employees outside of Mr. Warrington’s protected class engaged in similar conduct but
faced less adverse consequences. In the Notice of Decision on Proposed Removal, Ms.
Velasco thoroughly explains that where the “misconduct is egregious enough or is
accompanied by sufficiently aggravating circumstances[,] . . . [r]emoval or other severe
action would be warranted for a first offense . . . .” ECF No. 130-1 at 22. She explains
that she found those preconditions to be satisfied and points out that Mr. Warrington’s
2 Mr. Warrington disputes Defendant’s assertion that Ms. Velasco was unaware
of Mr. Smith’s alleged misconducts. He seemingly argues that TSA was constructively
on notice of the alleged misconduct by virtue of a “self-reporting” policy that requires
TSA employees to report their own misconduct including arrests, summons, and
citations to appear before a court, to their immediate supervisor. ECF No. 147 ¶ 58. This
argument fails for obvious reasons. To show discriminatory intent, a plaintiff must show
that the employer had actual knowledge of another employees’ alleged misconduct and
did not similarly penalize that employee.
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failure to abide by the Cease-and-Desist Directive was his second, not first, offense. Id.
In the decision, Ms. Velasco wrote,
Management 	was 	so 	concerned 	about 	the 	seriousness 	of 	your
inappropriate conduct and the potential liability you were creating for the
Agency 	that 	on 	November 	30, 	2019 	management 	placed 	you 	on
administrative leave to prevent any interaction with Ms. Corwin at work. Ms.
Corwin had to alter her behavior at work to avoid you and was so concerned
about your continued inappropriate conduct that she had [a temporary civil
order of protection] issued against you on . . . .
Id. at 21. Mr. Warrington does not dispute that he was placed on administrative leave or
that Ms. Corwin had obtained a temporary order of protection against him. For these
reasons, the Court does not find that TSA’s failure to consider less serious
consequences constitutes evidence of pretext.
Mr. Warrington also complains that he was not given a union representative from
the Americal Federation of Government Employees (“AFGE”) before receiving the
Notice of Proposed Removal. ECF No. 11 ¶ 13. However, as Defendant states, TSA is
not involved with AFGE’s representation decisions and was not involved with the
AFGE’s decision to deny Mr. Warrington’s representation. SUMF ¶ 39. Mr. Warrington
does not meaningfully dispute this fact in his response. There is no evidence that TSA
interfered with Mr. Warrington’s ability to obtain a union representative, let alone that
they did so out of animus against him due to his age.
As a final point, in his response, Mr. Warrington repeatedly asserts that there
was a determination by “DHS/TSA/ CRCL” that “Age Discrimionation/Disparate [sic]
Treatment most likely occurred.” See generally ECF No. 147. It is unclear to the Court
what Mr. Warrington is referring to. To the contrary, Mr. Warrington has provided the
Court with an order by the Equal Employment Opportunity Commission (“EEOC”)
affirming a finding by an EEOC administrative judge that no age discrimination had
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occurred. The administrative judge’s findings were adopted by TSA. ECF No. 10-1 at 2.
Moreover, any supposed agency determination would not be dispositive of any factual
issues or otherwise binding on this Court.
In sum, Mr. Warrington has failed to adduce evidence from which a reasonable
jury could conclude that he was terminated because of his age. The only inference that
can be drawn from the undisputed facts is that, absent any alleged discrimination, Mr.
Warrington would have been fired regardless because, according to Ms. Velasco, Mr.
Warrington had violated TSA’s anti-harassment policy, and his conduct was so serious
that he could not be rehabilitated.
IV. 	RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that Defendant’s
Motion for Summary Judgment, ECF No. 130, be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2), the
parties have fourteen (14) days after service of this recommendation to serve and file
specific written objections to the above recommendation with the District Judge
assigned to the case. A party may respond to another party’s objections within
fourteen (14) days after being served with a copy. The District Judge need not
consider frivolous, conclusive, or general objections. A party’s failure to file and
serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Colo.
Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411,
1412-13 (10th Cir. 1996).
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Dated at Denver, Colorado this 16th Day of December 2025
N. Reid Neureiter
United States Magistrate Judge
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