Chacon v. Wellsky

1
In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-02245-TC
_____________
ASPEN CHACON,
Plaintiff
v.
WELLSKY,
Defendant
_____________
MEMORANDUM AND ORDER
Plaintiff Aspen Chacon sued her former employer, WellSky Cor-
poration, alleging that WellSky unlawfully terminated her because of
her sex and sexual orientation. Doc. 51. WellSky requests summary
judgment and a continuation of the trial date. Docs. 52 & 63. For the
following reasons, the motion for summary judgment is granted and
the motion to continue trial is denied as moot.
I
A
Summary judgment is proper under the Federal Rules of Civil Pro-
cedure 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” when it
is necessary to resolve a claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998). And disputes over material facts are “genu-
ine” if the competing evidence would permit a reasonable jury to de-
cide the issue in either party’s favor. Id. Disputes—even hotly con-
tested ones—over facts that are not essential to the claims are irrele-
vant. Brown v. Perez, 835 F.3d 1223, 1233 (10th Cir. 2016). Indeed, be-
laboring such disputes undermines the efficiency that Rule 56 seeks to
promote. Adler, 144 F.3d at 670.
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At the summary judgment stage, material facts “must be identified
by reference to affidavits, deposition transcripts, or specific exhibits
incorporated therein.” Adler, 144 F.3d at 671; see also D. Kan. R.
56.1(a)–(c). To determine whether a genuine dispute exists, the court
views all evidence, and draws all reasonable inferences, in the light
most favorable to the nonmoving party. See Allen v. Muskogee, Okla.,
119 F.3d 837, 839–40 (10th Cir. 1997). That said, the nonmoving party
cannot create a genuine factual dispute by making allegations that are
purely conclusory, Adler, 144 F.3d at 671–72, 674, or unsupported by
the record. See Scott v. Harris, 550 U.S. 372, 378–81 (2007).
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, Chacon con-
tends that WellSky fired her because she is a woman and a lesbian. The
following, based largely on the parties’ stipulated facts, Doc. 51 at
¶¶ 2.a.i–2.a.lxxi, reflects the context in which this lawsuit arose.1
WellSky is a software company. Doc. 51 at ¶ 2.a.i.2 Chacon, who
“identifies as a lesbian and did not hide her sexual orientation from her
coworkers,” id. at ¶ 3.a, began working at WellSky in March 202., Id. at
¶¶ 2.a.ii–2.a.iv. WellSky hired Chacon to sell its software to existing
WellSky clients. Id. at ¶ 2.a.ix. Her direct supervisor was Nate Marcus.
Id. at ¶ 2.a.xvii. Marcus’s direct supervisor was Jeremy Henry, and
Henry’s was Aaron Winkelmann. Doc. 51 at ¶ 2.a.xvii.
1 The Pretrial Order contains over seventy stipulations of fact, and Chacon
does not contest most of WellSky’s statements of uncontroverted fact. Doc.
58 at 2–7.
2 All document citations are to the document and page number assigned in
the CM/ECF system. All facts are uncontroverted unless otherwise specified.
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In September 2021, WellSky placed Chacon on a performance im-
provement plan. Doc. 51 at ¶ 2.a.xvi. Chacon received a poor evalua-
tion in 2021. Id. at ¶ 2.a.xx. Her performance eventually improved, and
WellSky removed her from the performance improvement plan. Id. at
¶ 2.a.xix. After WellSky removed her from the plan, Chacon’s work
continued to improve. She did well in 2022 and received two awards
from WellSky. Id. at ¶ 2.a.xxvii. WellSky promoted Chacon in July
2023. Id. at ¶ 2.a.xlv.
In 2023, Chacon started working on a new transaction with Fran-
ciscan Missionaries of Our Lady Health System (FMOL). Doc. 51 at
¶ 2.a.xxx. She eventually closed that transaction as forecasted. Id. at
¶ 2.a.xxxiii. Later in 2023, Chacon began to work on two new transac-
tions with Alberta Health Services (AHS). Id. at ¶¶ 2.a.xlvii, 2.a.xlix.
Her work with AHS ultimately led to her termination.
WellSky received complaints from an AHS employee and discov-
ered that Chacon had made several mistakes on the transaction. In par-
ticular, Chacon sent price quotes and order forms to AHS for the two
transactions. Doc. 51 at ¶ 2.a.liii. Kathy Ervin, an AHS employee,
emailed Chacon to complain that the price quotes were higher than
AHS expected. Doc. 53 at ¶ 65. Chacon copied Winkelmann (her boss
three steps up the chain of command) to the email thread between her
and Ervin. Id. at ¶ 66. Winkelmann then reached out to Ervin to see
about her concerns. Doc. 51 at ¶ 2.a.lv. After speaking with Ervin,
Winkelmann realized that Chacon had made various mistakes when
working with Ervin. Doc. 53 at ¶ 68. Specifically, Chacon had failed to
explain some documents to Ervin, who was confused as a result; Cha-
con had sent documents containing errors and did not send updated
documents; and Chacon had sent documents with redline comments.
Doc. 53 at ¶¶ 71, 72.
Winkelmann reached out to Marcus, Chacon’s supervisor, and
Henry, Marcus’s supervisor, to talk about Chacon’s errors. Doc. 51 at
¶ 2.a.lvi. Henry contacted Kristine Ruhl from WellSky’s human re-
sources department to discuss what to do about Chacon’s errors. Id. at
¶¶ 2.a.lvii, 2.a.lviii. Henry then contacted Winkelmann. Id. at ¶ 2.a.lx.
Henry was particularly concerned because Chacon’s mistakes were
“fundamental errors” that had cost WellSky “a few hundred thousand
dollars,” and because the nature of the mistakes showed that Chacon’s
performance improvement plan was ultimately ineffective. Doc. 53 at
¶ 78. Winkelmann told Henry that it was Henry’s team to manage and
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thus Henry’s call whether to fire Chacon: Henry chose to do so. Doc.
51 at ¶¶ 2.a.lxii, 2.a.lxi.
Chacon’s claims revolve around alleged disparate treatment be-
tween her and Ryan Greger, another employee at WellSky. Doc. 58 at
16. A description of the events surrounding Greger’s hiring and job
assignments will provide context for Chacon’s claim.
The same day that WellSky hired Chacon, it also hired Greger.
Doc. 51 at ¶ 2.a.v. Greger had the same job as Chacon, but he was
focused on a different geographic territory. Id. at ¶ 2.a.x. At some point
after he was hired, Greger applied for a new position at WellSky. Id. at
¶ 2.a.xxxix. He interviewed for the position and got it. Id. at ¶ 2.a.xliii.
The parties agree that Greger was qualified for that position. Doc. 53
at ¶ 50. Chacon did not apply for that position. Doc. 51 at ¶ 2.a.ix.
In January 2023, Greger began to work on a new transaction with
Geisinger System Services. Doc. 51 at ¶ 2.a.xxxiv. Greger initially val-
ued the Geisinger transaction at $1.6 million. Id. at ¶ 2.a.xxxvi. He
eventually closed the Geisinger transaction for roughly $1.35 million,
about $200,000 less than his original estimate. Id. at ¶ 2.a.xxxvii.
Chacon filed suit in federal court after her termination. Doc. 1. She
brings two counts under Title VII: Count I for discrimination because
of sex, Doc. 51 at ¶ 4.a.i, and Count II for discrimination because of
sexual orientation, id. at ¶ 4.a.ii.
WellSky requests summary judgment on both counts. Doc. 52. It
argues that Chacon has failed to make a prima facie claim of discrimi-
nation on both counts, that it had legitimate reasons for terminating
Chacon, and that its reasons were not pretextual. See generally id.
II
Chacon has not made a prima facie claim of discrimination. And
WellSky offers legitimate, nondiscriminatory business reasons for its
decision to terminate Chacon. Accordingly, WellSky’s motion is
granted.
A
Chacon asserts that she was fired in violation of Title VII because
of her sex and sexual orientation. Doc. 51 at ¶ 4.a. Title VII makes it
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unlawful for an employer “to discharge any individual . . . because of
such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The Supreme
Court has held that Title VII prohibits discrimination on the basis of
sexual orientation. Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 683
(2020). A Title VII plaintiff bears the ultimate burden of proving in-
tentional discrimination by the employer. Singh v. Cordle, 936 F.3d 1022,
1037 (10th Cir. 2019).
Where, as here, the plaintiff only has indirect evidence of discrim-
ination, the case proceeds under the framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).3 DePaula v. Easter Seals El
Mirador, 859 F.3d 957, 969 (10th Cir. 2017). Under that framework the
plaintiff has the initial burden of establishing a prima facie claim of
unlawful discrimination. Id. If 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 that bur-
den, the burden then shifts back to the plaintiff to prove that the de-
fendant’s proffered reasons were pretextual—i.e., “not the true reason
for the employment decision.” Id.
B
1
WellSky first argues that Chacon has not shown a prima facie claim
of sex or sexual orientation discrimination. Doc. 53 at 22. “[A] prima
facie case requires evidence that: (1) the victim belongs to a protected
class; (2) the victim suffered an adverse employment action; and (3)
the challenged action took place under circumstances giving rise to an
inference of discrimination.” Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th
1202, 1215 (10th Cir. 2022) (quotation marks omitted); see Crowe v.
Wormuth, 74 F.4th 1011, 1035 (9th Cir. 2023) (using this framework for
a prima facie sexual orientation claim). The “critical prima facie inquiry
in all cases is whether the plaintiff has demonstrated that the adverse
employment action occurred under circumstances which give rise to
an inference of unlawful discrimination.” Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000). The parties agree that
Chacon belongs to a protected class because she is a woman and a
3 Neither party contends that there is any direct evidence of discrimination,
and each analyzes Chacon’s claims under McDonnell Douglas. See Docs. 53 at
21 & 58 at 14.
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lesbian. Doc. 51 at ¶¶ 2.a.iii, 2.a.iv. They further agree that Chacon’s
termination was an adverse employment action. Id. at 2.a.lxi. But
WellSky argues that Chacon has offered no evidence that her termina-
tion occurred under circumstances giving rise to an inference of dis-
crimination.
Chacon’s claims fail because there is no evidence that her termina-
tion gives rise to an inference of unlawful discrimination. Contra Doc.
58 at 15. In particular regarding her claim of sexual orientation discrim-
ination, there is no evidence that either Henry, whom Chacon con-
cedes was responsible for firing her, or Winkelmann knew that Chacon
was a lesbian. Doc. 51 at ¶ 2.a.lxi; Doc. 53 at ¶¶ 7, 14. This is fatal to
Chacon’s prima facie claim of sexual orientation discrimination, for
she must show that she was fired because of her sexual orientation. 42
U.S.C. § 2000e-2(a)(1) (prohibiting termination “because of” sex); ac-
cord Bostock, 590 U.S. at 657–58; see Lindsay v. Denver Pub. Schs., 88 F.4th
1323, 1331 (10th Cir. 2023) (affirming summary judgment where there
was no evidence that the employer was aware that the plaintiff had
engaged in a protected activity); Edmonds-Radford v. Sw. Airlines Co., 17
F.4th 975, 990 (10th Cir. 2021) (finding no prima facie claim where the
employer was unaware of the plaintiff’s disability); see also Belcher v. Boe-
ing Com. Airplane Grp., 105 F. App’x 222, 226 (10th Cir. 2004) (finding
no prima facie claim of race discrimination because the employer was
unaware of the plaintiff’s race). “[A]n employer’s knowledge of the
employee’s protected status is part and parcel of establishing a status-
based discrimination claim.” Gamble v. Fieldston Lodge Nursing & Rehab.
Ctr., 697 F. Supp. 3d 112, 121 (S.D.N.Y. 2023). “[T]he inference of
discrimination does not make sense when the decisionmaker is una-
ware of the [employee’s] membership in a protected class.” Belcher, 105
F. App’x at 226; see also Lindsay, 88 F.4th at 1327–28 (quoting Petersen
v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)) (“After all,
‘an employer cannot engage in unlawful retaliation if it does not know
that the employee has opposed or is opposing a violation of the anti-
discrimination statute.’”).
Chacon’s attempt to controvert this fact fails. See Doc. 58 at
¶¶ II.2–II.4. She admits that she never heard Henry speak negatively
about women or homosexuals. Doc. 53 at ¶ 13. And she admits that
she does not know whether Henry knew of her sexual orientation.
Doc. 58 at ¶ II.4. Wellsky’s evidence is that neither Winkelmann nor
Henry knew of her sexual orientation: Winkelmann testified that he
did not know Chacon was a lesbian and had never seen her
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screensaver, Doc. 58-3 at 3; Henry testified that he also did not know
that Chacon was a lesbian, Doc. 58-4 at 3. Chacon attempts to contro-
vert WellSky’s assertion, noting that she had a screensaver on her
phone, Doc. 58-16, which showed her and her girlfriend in “close
proximity.” Doc. 58 at 16. Further, she notes that there were “ample
opportunities” for Winkelmann and Henry to have seen the screen-
saver. Id. at ¶¶ II.2, II.4. And she further argues that other employees
at WellSky knew of her sexual orientation and “this information could
have been shared” with Winkelmann and Henry. Id. But these argu-
ments are just speculation as to what the decisionmakers might have
known or could have learned. There is no evidence that they did. Cha-
con’s unsubstantiated speculation is insufficient to create a genuine
dispute concerning whether either Winkelmann or Henry knew she
was a lesbian. See McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018)
(“Unsubstantiated allegations carry no probative weight in summary
judgment proceedings.”). Even when looking at the record in the light
most favorable to Chacon, there is no evidence indicating that Henry
or Winkelmann knew of Chacon’s sexual orientation.
Chacon points to other facts in support of her prima facie claims
of sex and sexual orientation discrimination, but those facts do not
raise an inference of unlawful discrimination. Contra Doc. 58 at 16.
Chacon argues that, to her, WellSky felt like a “boys’ club” where
Henry often referred to her as “kid” while referring to men as “doc-
tor.” Id. at 19, 20. But Chacon fails to explain how Henry’s comments,
which were unrelated to her termination or the reasons for it, show
that she was terminated because of her sex or sexual orientation. “Iso-
lated or ambiguous comments are too abstract to support a finding of
discrimination.” Mauldin v. Driscoll, 136 F.4th 984, 997 (10th Cir. 2025)
(alterations omitted); see Barlow v. C.R. Eng., Inc., 703 F.3d 497, 505
(10th Cir. 2012) (affirming the district court’s finding that a racist joke
did not give rise to an inference of discrimination when there was “no
nexus” between the joke and the plaintiff’s termination). Chacon must
demonstrate “how [Henry’s comments] are evidence of discrimina-
tion.” Mauldin, 136 F.4th at 997 (emphasis in original). Her claims fail
because she has not done that.
Chacon also argues that her colleague, Greger, received preferen-
tial treatment. Doc. 58 at 16. In particular, she points to alleged pref-
erential treatment that Greger received regarding the Geisinger trans-
action and his application for a new position. Id. Specifically, she argues
that WellSky helped Greger with the Geisinger transaction but did not
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help her with the FMOL transaction. Id. at 17. And she argues that
WellSky supported Greger when he applied for a new position but did
not support her. Id. at 18–19.
A plaintiff can establish that her adverse employment action oc-
curred under circumstances giving rise to an inference of discrimina-
tion by showing that similarly situated employees were treated more
favorably. See E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 801 (10th Cir.
2007). Employees are similarly situated if they “deal with the same su-
pervisor, are subjected to the same standards governing performance
evaluation and discipline, and have engaged in conduct of “comparable
seriousness.” Id. at 802.
The record does not support Chacon’s assertions that Greger re-
ceived preferential treatment with the Geisinger transaction or his ap-
plication for a new position. Contra Doc. 58 at 17–19. Chacon argues
that Greger testified that he received help from WellSky leadership on
the Geisinger deal. Id. at ¶ III.P10. But that is not what Greger said:
When asked in his deposition whether Winkelmann helped him,
Greger responded: “I don’t think so.” Doc. 58-5 at 5. Greger noted:
“The heavy, heavy majority of this deal was closed by myself, yes.” Id.
Nor does Chacon identify any evidence suggesting that WellSky helped
Greger because he is a man, who might have aided him, or that she
sought and was denied similar assistance. Put simply, it is unclear how
his situation—for a different client—suggests that Chacon’s termina-
tion might give rise to an inference of discrimination. See Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1193 (10th Cir. 2018) (inference of dis-
crimination can be shown through actions that reflect discriminatory
animus, preferential treatment, and pattern of recommending or failing
to recommend plaintiff for positions for which she is not qualified or
over qualified).
The same is true concerning Chacon’s contention that Greger re-
ceived preferential treatment when he applied for a new position. For
one thing, her argument rests on hearsay. Greger’s statement to Cha-
con that he was encouraged to apply for the new position is a statement
that he did not make “while testifying at the current trial or hearing”
and which Chacon offers “to prove the truth of the matter asserted.”
Fed. R. Evid. 801(c); see Doc. 58 at ¶ II.7; Doc. 58-2 at 14; see also Han-
sen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1249 (10th Cir.
2013) (declining to consider hearsay in opposition to summary judg-
ment). As a result, she has not established that Greger’s statement is
admissible. Meyers v. E. Oklahoma Cnty. Tech. Ctr., 776 F.3d 1201, 1209
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(10th Cir. 2015) (quoting Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555
(10th Cir. 1995)) (“[Rule] 56 precludes the use of inadmissible hearsay
testimony in depositions submitted in support of, or in opposition to,
summary judgment.”). For another, it fails to show that sexual orien-
tation or gender had anything to do with her termination. There is no
dispute that the new position was posted to the public and that Chacon
did not apply for it. Doc. 53 at ¶ 45; Doc. 51 at ¶ 2.a.ix; see Bennett, 792
F.3d at 1267–68 (finding no prima facie claim where the plaintiff ar-
gued that male employees received an accommodation but “conceded
she did not request any such accommodation”). And in any event,
WellSky’s treatment of Greger concerning his application for another
job (or the Geisinger work) fails to suggest that Chacon was fired un-
lawfully because of her gender or sexual orientation. Cf. Lincoln, 900
F.3d at 1192–93 (noting that the prima facie inquiry focuses on
“whether the circumstances surrounding the adverse employment ac-
tion give rise to an inference that the action was based on the plaintiff’s
disability”) (emphasis added) (quotations and alterations omitted); see
PVNF, 487 F.3d at 801 (noting that an employee is similarly situated
if he “engaged in conduct of comparable seriousness”).
2
Even assuming that Chacon had evidence to satisfy her prima facie
case, her claim still fails. That is because WellSky identifies a legitimate,
non-discriminatory reason for her termination and Chacon lacks evi-
dence suggesting that WellSky’s reason was pretext.
a. WellSky argues that even assuming Chacon made a prima facie
claim, it had a legitimate nondiscriminatory reason for its decision.
Doc. 53 at 28. When a plaintiff meets her burden of stating a prima
facie claim, the burden shifts to the employer to provide a legitimate
reason for its decision. Lincoln, 900 F.3d at 1193. The burden to estab-
lish a legitimate, nondiscriminatory reason is “exceedingly light.” De-
Paula, 859 F.3d at 970. On a motion for summary judgment, a defend-
ant 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 actu-
ally motivated by the proffered reasons.” Tex. Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 254 (1981).
WellSky has met that burden. It asserts that it terminated Chacon
for poor performance. Doc. 53 at 29. The Tenth Circuit has held that
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poor performance is a legitimate reason to terminate an employee. Bry-
ant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005) (“Poor
performance is a quintessentially legitimate and nondiscriminatory rea-
son for termination.”). Chacon makes no meaningful argument to the
contrary. Doc. 58 at 20.
b. Once an employer satisfies its obligation to identify a lawful rea-
son for the termination, the burden returns to the employee to show
that the reason for her termination was pretext for discrimination. Lin-
coln, 900 F.3d at 1193. A plaintiff “may show pretext by demonstrating
the proffered reason is factually false, or that discrimination was a pri-
mary factor in the employer’s decision.” Id. (quoting DePaula, 859 F.3d
at 970). In other words, a plaintiff may show that the defendant’s rea-
son is “so incoherent, weak, inconsistent, or contradictory that a ra-
tional 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 depart-
ment,’ second guessing employers’ honestly held (even if erroneous)
business judgments.” Dewitt v. S.W. Bell Tele. Co., 845 F.3d 1299, 1312
(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 con-
cerning pretext are resolved in the plaintiff’s favor, but conjecture and
bare allegations are not enough to show pretext. Jencks v. Modern Wood-
men of Am., 479 F.3d 1261, 1267 (10th Cir. 2007).
Chacon makes two main arguments in support of pretext. Doc. 58
at 20–24. Both fail.
First, Chacon takes issue with her poor performance. In essence,
she challenges the merits underlying the decision to fire her. She takes
issue generally with the determination that she committed errors in the
AHS transaction and “disputes these as actual errors.” Doc. 58 at 23;
see Doc. 58 at 21–24. But her subjective assessment of her performance
is immaterial; the relevant inquiry is whether WellSky believed that
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Chacon performed poorly. Swackhammer v. Sprint/United Mgmt. Co., 493
F.3d 1160, 1170 (10th Cir. 2007). Even if WellSky erroneously con-
cluded that Chacon’s mistakes were more serious than they were, and
even if Chacon had not actually made any errors, that would not show
pretext. See 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”);
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
always be treated fairly or that they will be discharged only for merito-
rious reasons. Although the dismissal of an employee without cause
may contribute to an inference of unlawful discrimination, it does not
require such a finding.”). There is no dispute that Winkelmann
emerged from his conversation with Ervin convinced that Chacon had
made several mistakes. Doc. 53 at ¶¶ 71, 72. Chacon does not explain
why that is not enough. See Turner v. Pub. Serv. Co. of Colorado, 563 F.3d
1136, 1146 (10th Cir. 2009) (finding no pretext for an adverse employ-
ment decision based on poor performance); Argo v. Blue Cross & Blue
Shield of Kansas, Inc., 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).
Second, Chacon argues that inconsistencies surrounding her promo-
tion and her performance show pretext. Doc. 58 at 23–24. Specifically,
she argues that Winkelmann told her that she was being promoted be-
cause her performance had improved, but that Henry claimed after
terminating her that he promoted her “to encourage her to snap back
in line as a quality worker, insinuating she had never really been worthy
of the promotion in the first place.” Doc. 58 at 24. And she argues that
WellSky was monitoring her performance but that no one told her that.
Id.
Chacon’s arguments do not suggest pretext. She does not explain
how comments regarding her promotion or how any monitoring of
her performance show that her superiors’ belief that she should be ter-
minated for poor performance was pretext for unlawful discrimina-
tion. Chacon concedes that Winkelmann and Henry concluded that
she made errors in the AHS transaction, Doc. 53 at ¶¶ 71 and 72, and
WellSky has consistently maintained that that is why it fired her. Id. at
¶¶ 78–81. And, even if WellSky had offered inconsistent reasons for
why it fired Chacon, that alone would not be enough to show pretext.
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See 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 pre-
text”); 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.”).
III
For the foregoing reasons, WellSky’s Motion for Summary Judg-
ment, Doc. 52, is GRANTED, and its Motion to Continue, Doc. 63,
is DENIED AS MOOT.
It is so ordered.
Date: February 25, 2026 s/ Toby Crouse
Toby Crouse
United States District Judge
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