Reaffirming the “Open Position” Prima Facie Test and the Binding Effect of Pretrial Stipulations: Commentary on Plump v. Government Employees Insurance Co.

I. Introduction

In Plump v. Government Employees Insurance Company (GEICO), No. 24‑3091 (10th Cir. Dec. 16, 2025), the United States Court of Appeals for the Tenth Circuit addressed a familiar structure in employment discrimination law—the McDonnell Douglas burden-shifting framework—but used the case to clarify two points of recurring practical importance:

First, it reaffirmed that in a discriminatory discharge case under Title VII and 42 U.S.C. § 1981, a plaintiff can satisfy the prima facie “inference of discrimination” element simply by showing that the job was not eliminated after the plaintiff’s termination, so long as the other elements (protected class, qualification, discharge) are present.
Second, it underscored the binding and potentially outcome-determinative effect of factual stipulations in a pretrial order—particularly when a plaintiff later tries to contest the employer’s stated job requirements at the pretext stage.

The plaintiff, Dion Plump, a Black male, worked as an insurance sales representative for GEICO in Lenexa, Kansas. His position required state insurance licenses, and New York was an especially important state for GEICO’s call volume. After the New York Department of Financial Services (NYDFS) denied his license application—citing “untrustworthiness”—and after Plump failed to appeal that denial, GEICO terminated him. Plump alleged:

Race discrimination under Title VII and 42 U.S.C. § 1981; and
Retaliation under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act as amended by the ADA Amendments Act of 2008 (ADAAA).

The district court granted summary judgment to GEICO on all claims, holding:

For the race discrimination claims: Plump failed to establish a prima facie case because the circumstances of his termination did not support an inference of discrimination.
For the FMLA and ADAAA retaliation claims: Plump established a prima facie case but failed to show GEICO’s stated reason (lack of a New York license) was pretextual.

On appeal, the Tenth Circuit agreed in part and disagreed in part. It held the district court did err by concluding Plump failed to establish a prima facie case of race discrimination but deemed that error harmless because, as with his retaliation claims, Plump failed to create a triable issue of fact on pretext. The Court therefore affirmed summary judgment on all claims.

This commentary examines the opinion’s structure, its treatment of precedent, its clarification of the prima facie standard and pretrial stipulations, and its likely impact on future employment litigation in the Tenth Circuit.

II. Summary of the Opinion

A. Factual Overview

GEICO hired Plump in June 2020 as a telephone sales representative. Sales representatives handled calls from customers nationwide and were expected to obtain and maintain insurance producer licenses from various states. New York was GEICO’s second-most frequent source of calls (about 9.98% of all calls), and GEICO “consider[ed] it a required state license” for the sales department.

Key factual points—many of them stipulated in the pretrial order—include:

Plump applied for a New York insurance license shortly after hire.
NYDFS twice wrote him (February and July 2021), seeking information regarding an undisclosed prior disciplinary issue involving his North Dakota license.
Plump stipulated that he did not respond to either letter.
On August 9, 2021, NYDFS denied his application for “untrustworthiness,” notified him he could request a hearing by August 24, 2021, and barred him from reapplying until August 9, 2022 if he did not appeal.
Plump never appealed.
NYDFS sent the denial to GEICO’s Dallas Licensing Team, but the team failed to upload it to Plump’s file, part of a larger pattern of errors; GEICO later terminated the Dallas supervisor and created a Kansas City Licensing Team.
On October 27, 2021, the Kansas City team discovered the denial and learned that the appeal period had expired.
GEICO then informed Plump that without a New York license he could not remain in Sales and explored a lateral transfer to a Service Department position; he interviewed but was not selected.

GEICO also audited Plump’s performance, finding:

His overall performance ratings were generally “good”; and
He had a high transfer rate and low quote-to-call (QTC) percentage, with 50% of transfers attributable to licensing limitations and 20% to perceived call avoidance.

In December 2021, Plump complained to Human Resources about the handling of his license, his service interview, and his supervisor relationship (but not race). On December 15, he inquired about FMLA leave and subsequently claimed he would check into the hospital. He never actually did so but did not report to work for 42 days. GEICO nevertheless approved him for intermittent FMLA leave (one-day episodes up to twice a month), retroactive to December 17, 2021, through September 21, 2022.

Meanwhile, Human Resources investigated and concluded Plump was held to the same standards as others. On February 2, 2022, HR gave him the results and invited a written statement. On February 3, Plump’s manager formally sought approval to terminate him for:

Failing to obtain a New York license;
Failing to inform his supervisor of the denial; and
Failing to appeal within the time allowed.

After unsuccessful attempts to contact him, GEICO terminated him effective February 10, 2022.

B. District Court Ruling

The district court treated the discrimination and retaliation claims separately under the McDonnell Douglas framework:

Race discrimination (Title VII and § 1981)
- Applied a “non-onerous” standard and held Plump was qualified.
- Nevertheless held he failed the prima facie requirement of an inference of discrimination, finding:
  - No racially derogatory remarks;
  - No evidence of disparate treatment of comparators;
  - No suggestion that the Dallas Licensing Team’s errors were race-based (they affected many employees); and
  - No evidence of irregularities in the service transfer process.
- Because it stopped at the prima facie stage, it did not reach pretext for the discrimination claims.
FMLA and ADAAA retaliation
- Found a prima facie case, based on:
  1. Protected activity: Plump’s request for FMLA leave as an accommodation;
  2. Materially adverse action: termination; and
  3. Causation: temporal proximity between the request and termination.
- But concluded Plump failed to show pretext, reasoning that:
  - GEICO had begun considering termination due to licensing issues before Plump requested leave;
  - His performance was not strong enough to undermine GEICO’s rationale;
  - His failure to obtain a service position did not show retaliatory animus; and
  - Any alleged deficiencies in HR’s investigation did not amount to pretext.

C. Tenth Circuit’s Holding

On appeal, the Tenth Circuit:

Agreed that the district court erred in concluding Plump failed to establish a prima facie case of race discrimination. Under binding circuit precedent (Kendrick and Perry), a plaintiff can create an inference of discrimination by showing the job remained open after discharge.
Held the error harmless, because:
- The district court’s pretext analysis for the retaliation claims applied equally to the discrimination claims; and
- The appellate court independently concluded Plump failed to create a genuine issue of fact on pretext for any claim.
Affirmed summary judgment on all claims under 28 U.S.C. § 1291, invoking the principle that an appellate court may affirm on any ground supported by the record (citing Champagne Metals v. Ken‑Mac Metals, Inc.).

III. Detailed Analysis

A. The Doctrinal Framework: McDonnell Douglas, Summary Judgment, and Retaliation Standards

1. The McDonnell Douglas Burden-Shifting Framework

The Court applied the familiar three-step McDonnell Douglas framework for claims based on circumstantial evidence of discrimination or retaliation:

Prima facie case: Plaintiff must produce minimal evidence suggesting discrimination or retaliation (protected status or activity, qualification, adverse action, and an inference of unlawful motive).
Employer’s burden of production: Employer must articulate a legitimate, non-discriminatory/non-retaliatory reason for the adverse action; this burden is “exceedingly light.”
Pretext: Plaintiff must then show that the proffered reason is a pretext for prohibited discrimination/retaliation, e.g., by showing the reason is factually false, inconsistently applied, or otherwise unworthy of belief.

The Court emphasized that the real battle in most cases occurs at the third stage (pretext), especially where the prima facie test is purposefully “non-onerous.”

2. Summary Judgment Review

The Tenth Circuit reviewed summary judgment de novo, applying Federal Rule of Civil Procedure 56(a). A material fact is one that could affect the outcome under governing law, and a dispute is genuine if a reasonable jury could find for the nonmovant (citing Rio Grande Foundation v. Oliver).

Importantly, the Court reiterated that, on appeal, any alleged failure by the district court to view facts in the light most favorable to the nonmovant is effectively cured by the appellate court’s own de novo review (Wright v. Portercare Adventist Health Sys.).

3. Retaliation: FMLA and ADAAA

Both FMLA and ADAAA retaliation claims follow the same general McDonnell Douglas framework:

FMLA retaliation: Plaintiff must show (1) protected FMLA activity; (2) a materially adverse employment action; and (3) a causal connection between the two (citing Metzler v. Federal Home Loan Bank of Topeka).
ADAAA retaliation: Same three elements (citing Foster v. Mountain Coal Co.).

The Court also acknowledged the Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which lowered the harm threshold for Title VII discrimination claims at the prima facie stage: a plaintiff need only show “some harm respecting an identifiable term or condition of employment.” However, the Tenth Circuit:

Expressly assumed without deciding that its prior standards for FMLA and ADAAA retaliation remain valid; and
Relied on its own recent decision in Culp v. Remington of Montrose Golf Club, LLC (2025), which held that Muldrow did not alter the standard for Title VII retaliation claims.

Thus, for retaliation claims in the Tenth Circuit, “materially adverse” remains the operative standard at least for now; Muldrow's relaxed standard is confined to Title VII discrimination, not retaliation.

B. Prima Facie Case of Race Discrimination: Reaffirming the “Job Not Eliminated” Test

1. Tenth Circuit’s Core Holding on the Prima Facie Standard

The central doctrinal holding of Plump concerns the fourth element of the prima facie case for discriminatory discharge under Title VII/§ 1981. The Tenth Circuit reaffirmed, citing Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 2000), and Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999), that a plaintiff may establish an inference of discrimination by showing:

He belongs to a protected class;
He was qualified for his job;
Despite his qualifications, he was discharged; and
The job was not eliminated after his discharge.

This formulation is explicitly drawn from the Supreme Court’s original McDonnell Douglas failure-to-hire template and its elaboration in Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977), which observed that eliminating the most common legitimate reasons for rejection—lack of qualifications or lack of vacancy—creates an inference of discrimination “absent other explanation.”

The Tenth Circuit stressed that this “job not eliminated” method is not limited to failure-to-hire contexts. In fact, its “earliest discriminatory discharge cases” adopted the same four-part test—including for discharge—because there is “no reason to apply a stricter version of the fourth part” in termination cases than in hiring or promotion cases (quoting Crawford v. Northeastern Oklahoma State University).

2. Application to Plump’s Case

The Court held that under this framework:

Plump is a member of a protected class (Black/African American).
The district court itself found, under a “non-onerous” standard, that he was prima facie qualified, based on “good” performance evaluations and his ability to serve most clients even though he lacked the New York license.
He was discharged.
His sales job was not eliminated after his discharge.

Thus, the Court concluded “an inference of discrimination arose from the fact his position remained open following his termination” and that the district court erred by ignoring this Kendrick/Perry pathway and focusing instead only on other potential indicia of discrimination (e.g., remarks, comparators, irregularities).

3. Clarifying Plotke v. White and Rejecting GEICO’s Argument

GEICO argued that Plotke v. White, 405 F.3d 1092 (10th Cir. 2005), effectively made the status of the position after discharge irrelevant whenever the employer claims performance or misconduct was the reason for termination. GEICO relied on the following sentence from Plotke:

“[W]here an employer contends the actual reason for termination in a discriminatory firing case is not elimination of the employee’s position but, rather, unsatisfactory conduct, the status of the employee’s former position after his or her termination is irrelevant.”

Standing alone, this language could be read to foreclose reliance on the “job not eliminated” test in most real-world termination cases (where employers almost always cite performance or conduct). The Tenth Circuit, however, declined to read Plotke so rigidly. Instead, the Court:

Placed the quoted language back into context, emphasizing that Plotke was about the flexibility of the prima facie case.
Noted that Plotke refused to adopt a per se rule that elimination of a position defeats a discrimination claim; rather, elimination is just one factor and the fourth element is “a flexible one that can be satisfied differently in varying scenarios.”
Reasoned that if elimination of the position is not per se fatal, then, conversely, continued existence of the position cannot be per se irrelevant, particularly when earlier cases treat that very fact as sufficient to raise an inference.

In short, Plotke allows multiple ways to satisfy the inference element; it does not nullify the Kendrick/Perry “job not eliminated” route. Rather than supplanting it, Plotke simply prevents rigid formulae from undermining substantive discrimination claims.

4. Consistency with More Recent Tenth Circuit Authority

The Court also relied on its recent decision in Walkingstick Dixon v. Oklahoma ex rel. Regional University System (2025), where a female Native American plaintiff was fired from a position that remained open. A magistrate judge there had erroneously concluded she lacked a prima facie case despite meeting the Kendrick/Perry test. The Tenth Circuit reversed, reiterating that a plaintiff can “raise an inference of unlawful discrimination” by showing:

Membership in a protected class;
Qualification for the job;
Termination; and
The job was not eliminated.

In Plump, the Court explicitly invoked Walkingstick Dixon to reinforce that its earlier cases remain good law and that district courts must not constrict the flexible prima facie inquiry by disregarding the open-position evidence.

5. Harmless Error Doctrine

Although the Court found the district court erred at the prima facie stage, it deemed the error harmless for two reasons:

The district court did conduct a full pretext analysis for the retaliation claims, and both parties treated the pretext issues for discrimination and retaliation as overlapping and based on the same record; and
An appellate court may affirm “on any ground adequately supported by the record” (Champagne Metals), and the Tenth Circuit independently concluded Plump failed to create a genuine dispute of material fact on pretext.

C. The Pretext Stage: The Centrality of Pretrial Stipulations and Business Judgment

1. General Pretext Principles

At the pretext stage, the plaintiff’s task is to show the employer’s stated reason for the adverse action is not the true reason but a cover for discrimination or retaliation. The Court summarized its longstanding principles (citing, among others, DePaula v. Easter Seals El Mirador and DeWitt v. Southwestern Bell Telephone Co.):

Pretext may be shown by evidence that the employer’s reason is factually false, or by “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions” such that a reasonable jury could deem the reason “unworthy of credence.”
Courts do not second-guess employers’ business judgments. Showing that the decision was mistaken, harsh, or unwise is not enough.
The key question is whether the employer honestly believed the reasons it gave and acted in good faith on those beliefs, viewed from the decisionmaker’s perspective.

2. Factual Stipulations and the New York License Requirement

The most consequential aspect of the pretext analysis in Plump concerns the effect of the parties’ factual stipulations in the pretrial order. Plump tried to argue that:

GEICO’s supposed requirement of a New York license was not genuinely enforced or was invented/overstated to justify his termination; and
The Dallas Licensing Team’s failures, for which he was arguably not at fault, undermined GEICO’s reliance on licensing as a legitimate reason.

However, the pretrial order included several critical stipulations:

Plump “sold insurance to customers by telephone and, as such, was required to obtain and maintain licenses issued by various states’ insurance departments.”
“New York is the second most frequent state [the sales department] receives calls from, so GEICO considers it a required state license for the [department].”
Plump “was told that having a New York insurance license was important to his role.”

The Court held that these stipulations foreclosed Plump’s attempt to contest the bona fide nature of the New York license requirement. Drawing on In re Durability, Inc. (Kirtley v. Sovereign Life Ins. Co. of Cal.), the Court noted:

Fact stipulations are typically treated as binding admissions at summary judgment.
Although a party can seek relief from a stipulation upon a showing of “good reason,” that requires a motion or some request to the district court.
Plump never sought to withdraw or modify his stipulations in the district court.
On appeal, he did not argue plain error in failing to relieve him from the stipulations (Richison v. Ernest Group, Inc.), but instead simply ignored them and argued as if they did not exist.

Under these circumstances, the Court held Plump was bound by the stipulations. Once they are taken as true, no reasonable jury could find that:

GEICO did not genuinely require a New York license for sales representatives; or
GEICO’s reliance on his lack of such a license was a fabricated or suspect rationale.

The Court also emphasized that even if the Dallas Licensing Team’s errors contributed to the license denial, that does not change the fundamental fact that Plump did not hold the required New York license and could not reapply until August 9, 2022 due to his failure to appeal NYDFS’s denial. Absent evidence that the licensing team’s deficiencies targeted him for discriminatory reasons, the question of fault is immaterial to whether the requirement was bona fide and whether GEICO honestly relied on it.

3. Alleged “Shifting Rationales for Termination”

Plump also argued pretext based on purportedly shifting justifications:

GEICO initially examined his call avoidance and performance metrics;
It discussed his “no call no show” status during his lengthy absence; and
It ultimately terminated him explicitly for failure to obtain a New York license, failure to inform his supervisor of the denial, and failure to appeal.

He cited Berkemeier v. Standard Beverage Corp., 171 F. Supp. 3d 1122 (D. Kan. 2016), where the employer told the employee at the time of discharge that the reason for her termination was cost-cutting and that it had “nothing to do” with performance, but later invoked performance-based reasons in administrative and litigation stages. In Berkemeier, the court held that:

The shift from an explicitly non-performance-based rationale to a performance-based one after the fact could support an inference of pretext; and
That inference was strengthened by a factual dispute over the accuracy of the new performance-based explanation.

The Tenth Circuit found Berkemeier inapposite. It distinguished between:

True shifting rationales: where an employer offers materially inconsistent or contradictory justifications at different times, particularly to third parties like the EEOC (as addressed in Jaramillo v. Colorado Judicial Department); and
Holistic performance review and exploration of multiple potential grounds for discipline before a decision is finalized, followed by a consistent, stable explanation after the decision.

In Plump, the record showed that:

GEICO conducted a pre-termination audit examining multiple performance metrics and possible grounds for discipline, including call avoidance and licensing issues.
After that process, it decided to terminate him specifically for the licensing failure and associated conduct (non-disclosure and failure to appeal).
GEICO has consistently maintained that lack of a New York license was the basis for termination throughout the litigation.

The Court, citing Jaramillo, noted that merely offering multiple supporting reasons or engaging in an internal review does not by itself create a “shifting rationale” problem. It is not enough to show that different aspects of performance were examined; the plaintiff must show that the employer’s justifications are mutually inconsistent or that the later explanation is not credible. That showing was absent here.

4. Alleged “Unfair and Inadequate” HR Investigation

Plump argued that GEICO’s internal investigation of his complaints to Human Resources was unfair, and that this alleged unfairness was evidence of pretext. The Court rejected this for multiple reasons:

The HR complaint did not concern race discrimination or medical leave; it related to his licensing issues, service interview, and relationship with his supervisor.
The record showed HR:
- Met with Plump the same day he complained;
- Interviewed multiple relevant witnesses, including licensing and supervision personnel and several peers;
- Concluded he was held to the same standards as others; and
- Met with him on February 2, 2022 to communicate the findings and invited a written statement, which he submitted.

The Court observed that Plump did not identify any irregular steps in the process itself—no skipped interview, no refusal to consider his evidence, no procedural anomaly. His real complaint was that HR reached the “wrong” conclusion and did not accept his explanation regarding the licensing problems. But under DePaula and DeWitt, disagreement with the outcome, or belief that the decision was unreasonable or harsh, does not establish pretext absent evidence of dishonesty or discriminatory motive.

5. Temporal Proximity and Retaliation Pretext

Finally, Plump relied on the temporal proximity between:

His request for FMLA leave (December 2021); and
His termination (February 10, 2022).

The district court had found this timing sufficient to support the causation element of the prima facie retaliation case (while stressing that his misuse of leave—i.e., taking continuous 42-day absence when only intermittent leave was approved—was not protected activity). The Tenth Circuit agreed with the general principle that close timing can support a prima facie case.

However, at the pretext stage, the Court reaffirmed its prior holdings (notably Metzler and DePaula) that:

Temporal proximity alone is insufficient to create a genuine dispute of pretext.
Timing can “support” a finding of pretext only in combination with other substantial evidence undermining the employer’s stated reason.

Because the Court had already concluded that all of Plump’s other pretext theories failed (licensing requirement, alleged shifting rationales, and HR process), the timing evidence could not carry the day by itself.

The Court also noted, but did not decide, GEICO’s alternative argument: that where disability or leave issues arise after the employer has already begun contemplating termination for non-retaliatory reasons, an inference of retaliatory causation based solely on temporal proximity may be especially weak. The Court declined to resolve this question because pretext failed regardless.

D. Retaliation Claims under FMLA and ADAAA

1. Protected Activity vs. Misuse of Leave

The Court carefully distinguished between:

Protected activity: Plump’s request for FMLA leave as an accommodation and his engagement with the leave process; and
Unprotected conduct: his 42-day continuous absence (and subsequent absences) inconsistent with the intermittent leave that was requested and approved, coupled with false statements that he was checked into a hospital.

The district court treated only the request for FMLA leave as protected activity; the Tenth Circuit accepted that framework and evaluated causation and pretext accordingly. This approach reinforces a line between:

Asserting rights under FMLA/ADAAA (protected); and
Misuse or abuse of leave or misrepresentation regarding medical status (not protected, and can be a legitimate basis for discipline).

2. Prima Facie Retaliation and Causation

The Court accepted that the approximate eight-week gap between Plump’s FMLA inquiry and his termination could, at least for purposes of the prima facie case, support a causal inference. However, as noted above, it declined to rely on causation as a dispositive issue, choosing instead to resolve the case at the pretext stage.

3. Pretext Analysis Applied to Retaliation

The same reasons that defeated pretext for the discrimination claims also defeated pretext for the retaliation claims:

The New York license requirement was bona fide and binding via stipulation.
GEICO had already identified and was acting on licensing deficiencies before any FMLA request was made.
HR’s investigation and management’s deliberations showed a structured process focusing on licensing and performance, not an abrupt reaction to FMLA or ADAAA activity.
No contradictory or evolving rationales comparable to the scenario in Berkemeier were present.

With no additional evidence suggesting GEICO’s licensing rationale was a cover for retaliation, temporal proximity could not sustain a pretext finding.

E. Complex Concepts Simplified

1. Prima Facie Case

A prima facie case under McDonnell Douglas is a minimal evidentiary showing that:

For discrimination: Plaintiff is in a protected class, was qualified, suffered an adverse action, and there are circumstances supporting an inference that the action was based on protected status (race, sex, etc.).
For retaliation: Plaintiff engaged in protected activity (complaints, requests for accommodation/leave), suffered a materially adverse action, and there is a causal link between the two.

Think of it as crossing a low evidentiary threshold that requires the employer to explain itself; it is not the same as proving discrimination.

2. Pretext

Pretext means that the employer’s stated reason for its decision is not the real reason. To prove pretext, a plaintiff must do more than show the employer was mistaken or unfair. Instead, the plaintiff must show that:

The explanation is factually untrue (e.g., evidence that poor performance did not occur as claimed); or
The explanation is inconsistent with the employer’s own practices, policies, or prior statements; or
The explanation is undermined by other evidence (e.g., suspicious timing plus inconsistencies, or disparate treatment of comparators).

The guiding question: Would a reasonable jury think the employer is being honest, even if harsh, or dishonest, using a pretext to mask unlawful motives?

3. Temporal Proximity

Temporal proximity refers to how close in time the plaintiff’s protected activity is to the employer’s adverse action. Close timing can raise a reasonable suspicion that the action was retaliatory—but:

It is usually enough to satisfy causation at the prima facie stage; but
It rarely, by itself, proves pretext; courts want additional corroborating evidence.

4. Business Judgment Rule in Employment Cases

Courts do not sit as “super-personnel departments” evaluating whether an employer’s decisions are wise or optimal. Under the business judgment rule in this context:

An employer can make mistaken, harsh, or inefficient decisions without violating discrimination laws.
What matters legally is whether the employer made its decision for discriminatory or retaliatory reasons, not whether it exercised perfect judgment.

Thus, a poor or even “unfair” decision is not illegal unless it is shown to be rooted in prohibited bias.

5. Pretrial Order and Factual Stipulations

A pretrial order is a document filed before trial that defines the issues to be tried and typically contains factual stipulations—facts both parties agree are true. Once entered:

Stipulated facts are generally binding and treated as established for purposes of summary judgment and trial.
A party wishing to withdraw a stipulation must move the court for relief and show a good reason (e.g., mistake, newly discovered evidence).
Ignoring or contradicting stipulated facts without seeking relief is not permitted.

In Plump, the stipulations regarding the New York licensure requirement essentially resolved a central “fact” against the plaintiff at the pretext stage.

IV. Impact and Implications

A. For Discrimination Litigation in the Tenth Circuit

Plump solidifies several important points:

Prima facie threshold remains low and plaintiff-friendly. The Tenth Circuit reaffirmed that a plaintiff can meet the inference-of-discrimination element in a discharge case by showing the position remained open, so long as the plaintiff was arguably qualified and is in a protected class.
District courts must not elevate the prima facie standard. Walkingstick Dixon and Plump together warn against narrowing the prima facie test by demanding evidence of remarks, comparators, or special circumstances at that early stage.
The real battleground is pretext. Because the court often assumes a prima facie case and because employers’ reasons easily satisfy the “exceedingly light” burden of production, plaintiffs in the Tenth Circuit must focus on robust evidence at the pretext stage.

B. For FMLA and ADAAA Retaliation Claims

Protected request vs. wrongful use. Employees are protected when they request leave or accommodation in good faith. But misuse of leave (e.g., extended absence far beyond what was requested/approved, misrepresentations about hospitalization) is not shielded and may itself be a legitimate ground for discipline.
Temporal proximity insufficient by itself at pretext stage. Even tight timing between leave requests and adverse action cannot, standing alone, defeat summary judgment where the employer’s reason is otherwise consistent and well-documented.
Muldrow not extended to retaliation. By reaffirming existing standards and citing Culp, the Court signaled that the more plaintiff-friendly adverse-action threshold in Muldrow remains confined to Title VII discrimination, not retaliation (whether under Title VII, FMLA, or ADAAA).

C. For the Use and Drafting of Pretrial Orders

Perhaps the most practically significant takeaway for litigators is the Court’s strict adherence to factual stipulations:

Plaintiffs must be cautious in stipulating facts that go to the heart of the employer’s alleged justification (e.g., whether a requirement is bona fide or whether an instruction was given).
If discovery reveals that a stipulation is inaccurate or incomplete, counsel must move to modify the pretrial order or withdraw the stipulation and show good cause.
On appeal, the failure to seek relief from a stipulation limits the ability to argue contrary facts; courts will not implicitly discard or ignore stipulations.

Plump demonstrates how a single set of stipulations about job requirements can effectively doom a plaintiff’s pretext argument.

D. For Employers and HR Professionals

Document bona fide job requirements. GEICO benefitted from having both internal expectations (New York as a “required” license) and plaintiff’s acknowledgment (stipulation) that he was told the license was important.
Address systemic administrative errors uniformly. GEICO’s response to the Dallas Licensing Team’s systemic failures (terminating its supervisor and creating a new team) supported its position that the errors were not targeted at any individual employee.
Maintain consistency in termination reasons. Although employers can consider multiple performance issues internally, the reasons communicated to the employee and to external bodies (EEOC, courts) should remain consistent. Plump provides comfort that a holistic internal review does not, by itself, equate to “shifting rationale,” but inconsistency across fora can be risky.
Conduct structured, documented HR investigations. Even when the plaintiff claims retaliation or discrimination, a clearly documented, multi-witness investigation—combined with giving the employee a chance to respond—can be powerful evidence against pretext.

E. For Plaintiffs’ Counsel

Leverage the lenient prima facie standard—but plan for pretext. The open-position test will usually be satisfied in discharge cases. Counsel should plan from the outset to gather and marshal evidence that meaningfully undermines the employer’s stated reasons.
Be meticulous with factual stipulations. Do not stipulate to characterizations of job requirements or facts central to pretext unless those are genuinely uncontested and counsel is prepared to live with them on summary judgment and at trial.
Develop comparator and pattern evidence where possible. Plump lacked such evidence; developing it can help demonstrate that the employer’s reliance on a neutral requirement is, in fact, selectively enforced.
Do not rely on timing alone for retaliation claims. Combine temporal proximity with documentary evidence, inconsistencies, or deviations from practice to build a persuasive pretext argument.

V. Conclusion

Plump v. GEICO is a significant Tenth Circuit decision for several reasons, even though the plaintiff ultimately lost. It:

Reaffirms that in discriminatory discharge cases under Title VII and § 1981, a plaintiff may establish the prima facie inference of discrimination simply by showing that the position was not eliminated after the plaintiff’s termination, so long as the other elements are satisfied.
Clarifies that Plotke does not abrogate this “job not eliminated” pathway but instead emphasizes the flexibility of the prima facie inquiry.
Demonstrates the decisive role that factual stipulations in a pretrial order can play in the pretext analysis; once a plaintiff stipulates to the existence and communication of a bona fide job requirement, it is difficult to later argue that the requirement is fabricated or pretextual.
Reinforces longstanding principles that courts will not second-guess employers’ business judgments and that timing alone is insufficient to prove pretext, especially where the employer’s rationale is consistent and supported by documented processes.
Places FMLA and ADAAA retaliation claims firmly within existing Tenth Circuit precedent, with Muldrow’s relaxed adverse-action standard confined, for now, to Title VII discrimination claims.

For practitioners, Plump serves as both a doctrinal reminder and a practical warning: the prima facie threshold in discrimination cases remains low in the Tenth Circuit, but plaintiffs must carefully manage stipulations and develop strong, specific evidence of pretext if they hope to survive summary judgment. Employers, in turn, are reminded of the value of clear job requirements, consistent decision-making, and well-documented HR processes in defending against discrimination and retaliation claims.