Zisumbo v. Ogden Reg'l Med. Ctr.

Decision Date04 September 2015
Docket NumberNos. 13–4179,14–4019.,14–4014,s. 13–4179
Citation801 F.3d 1185
PartiesRaymond L. ZISUMBO, Plaintiff–Appellant/Cross–Appellee, v. OGDEN REGIONAL MEDICAL CENTER, Defendant–Appellee/Cross–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

April Lynn Hollingsworth, Hollingsworth Law Office, Salt Lake City, UT, for PlaintiffAppellant.

Mark D. Tolman, (Michael Patrick O'Brien and J. Angus Edwards, with him on the briefs) Jones Waldo Holbrook & McDonough, P.C., Salt Lake City, UT, for DefendantAppellee.

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.

Opinion

MORITZ, Circuit Judge.

Within a month after Raymond Zisumbo complained to his supervisor at Ogden Regional Medical Center (ORMC) about alleged race discrimination in the workplace, ORMC investigated Zisumbo for submitting apparently fraudulent letters to his supervisor months earlier. After confirming that at least one of the letters was falsified, ORMC terminated Zisumbo's employment. Zisumbo sued ORMC for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and for breach of the implied duty of good faith and fair dealing under Utah law. After years of litigation, procedural wrangling, and a previous appeal to this court, only Zisumbo's Title VII claims for unlawful termination remained to be tried to a jury. The jury found in favor of ORMC on Zisumbo's discrimination claim but in favor of Zisumbo on his retaliation claim.

In cross-appeals and a third parallel appeal, the parties raise numerous issues. Zisumbo challenges the district court's decisions denying his request to amend his complaint, granting ORMC summary judgment on his good faith and fair dealing claim, and denying in part his request for reinstatement, front pay, and back pay, as well as his request for attorneys' fees. ORMC appeals the denial of its renewed, post-trial motion for judgment as a matter of law, and the denial of its request to further reduce Zisumbo's Title VII remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

ORMC employed Zisumbo as a Computer Tomography

(CT or CAT scan ) Technician in its imaging department from March 2005 to October 2009. Before beginning work with ORMC, Zisumbo acknowledged through his signature on an employment application and on an employee handbook acknowledgment card that any job offer extended to him would be for at-will employment. Sometime after he started at ORMC, Zisumbo also signed a form acknowledging his receipt of a copy of ORMC's Code of Conduct and his understanding of the mandatory nature of the policies contained therein.

After Zisumbo had worked for OMRC for approximately four years, Anthony Rodebush became his supervisor. About that time, Zisumbo sought a promotion to a vacant CT Coordinator position. In early August 2009, Rodebush became curious as to why Zisumbo was so eager to get the promotion. Rodebush asked Zisumbo if he was worried that he wouldn't be able to get a coordinator job elsewhere and whether he'd been fired from other jobs. Zisumbo responded by offering to produce letters from his previous employers proving he was not fired. Later that same day, Zisumbo gave Rodebush letters from the University of Utah Hospital and St. Mark's Hospital. Rodebush also received a letter from McKay Dee Hospital. Without reviewing the letters, Rodebush placed them in a file in his desk.

On September 15, 2009, Rodebush informed the CT department during a staff pizza party at which Zisumbo was present that Zisumbo was seeking the CT Coordinator position. Rodebush suggested that the CT staff's lack of confidence in Zisumbo's leadership ability was preventing Zisumbo from being promoted. Rodebush encouraged employees at the meeting to discuss examples of Zisumbo's shortcomings and to compare his abilities to those of another employee—the employee ultimately promoted to the CT Coordinator position. Later that day, Zisumbo accused Rodebush of treating Zisumbo differently than other employees because Zisumbo is Hispanic. Rodebush suggested Zisumbo discuss his concerns with ORMC's director of human resources, Chris Bissenden. Zisumbo interpreted this suggestion as a threat because he felt Bissenden didn't like him.

Zisumbo didn't take his concerns to Bissenden. Instead, about a week after the pizza party, he filed a complaint with the Utah Antidiscrimination and Labor Division complaining of race discrimination and also contacted ORMC's ethics line complaining of race discrimination and unprofessional behavior. The ethics line report of Zisumbo's complaint, however, did not mention race discrimination; instead, it noted only that Zisumbo complained of unprofessional behavior by Rodebush and other staff.

Judd Taylor, ORMC's ethics compliance officer, investigated Zisumbo's ethics line complaint. In doing so, Taylor met privately with Rodebush but not Zisumbo. Instead, on October 1, 2009, Taylor met with both Rodebush and Zisumbo to discuss the complaint.

The next day, October 2, 2009, Rodebush and Bissenden gave Zisumbo a written warning for unrelated incidents occurring several months earlier. Less than a week later, on October 8, 2009, Taylor asked Rodebush about Zisumbo's allegations that his coworkers were spreading rumors that Zisumbo had been fired from previous jobs. This questioning spurred Rodebush to give Taylor the letters Zisumbo had given Rodebush approximately two months earlier when Rodebush questioned Zisumbo about whether he'd been fired from previous jobs.

Rodebush reviewed the three letters for the first time with Taylor on October 8, 2009, and the two men concluded the St. Mark's and McKay Dee letters appeared to have been fabricated. Both letters employed an informal and unprofessional tone and neither appeared to have been prepared on official hospital letterhead. One letter was unsigned and the signature on the other contained only a first name.

However, neither Rodebush nor Taylor confronted Zisumbo about the letters' authenticity. Instead, they gave them to Bissenden and conveyed their concerns to her. Bissenden agreed the letters appeared suspicious, and she immediately began investigating their authenticity. St. Mark's human resource director confirmed that its human resource department had not issued Zisumbo's letter. Bissenden also unsuccessfully attempted to contact McKay Dee's human resource department that day.

Later that same day—October 8, 2009—Rodebush and Bissenden met with Zisumbo.

Bissenden gave Zisumbo all three letters and discussed each of them with him. Rodebush advised Zisumbo that ORMC had confirmed that the St. Mark's letter was fraudulent and that ORMC was terminating Zisumbo's employment for dishonesty.

The next day, Bissenden confirmed that the McKay Dee letter had not been issued by that hospital's human resource department. That same day, Zisumbo's attorney contacted Bissenden, saying they had confirmed the authenticity of the St. Mark's letter and claiming “Ashley” at St. Mark's prepared the letter. Bissenden immediately contacted St. Mark's human resource department and spoke with Ashley Jorgensen. Ashley advised Bissenden that she had not written the letter because she was on maternity leave on the date the letter was written.

Zisumbo filed this action on May 12, 2010, alleging only a Title VII hostile work environment claim. Six months later, ORMC agreed to permit Zisumbo to amend his complaint to allege (1) Title VII race discrimination claims based on hostile work environment, failure to promote in 2007 and 2009, and discriminatory termination; (2) a Title VII retaliation claim asserting ORMC fired Zisumbo for complaining about race discrimination; and (3) a state law claim for breach of the duty of good faith and fair dealing based on Zisumbo's claim that ORMC violated its anti-discrimination policy.

Early in the litigation, the district court entered a stipulated scheduling order setting deadlines for joining parties (July 29, 2011), amending pleadings (September 29, 2011), and discovery (December 30, 2011). The parties agreed to multiple continuations of the discovery deadline, ultimately extending it to August 31, 2012. But they did not agree to extend the other deadlines.

Nearly two years into the litigation and four months after the September 29, 2011, deadline, Zisumbo again sought to amend his complaint—this time to add a claim of race discrimination under 42 U.S.C. § 1981. This amendment, if permitted, would have added Rodebush as a defendant and three new state-law claims. But the district court denied Zisumbo's motion to amend.

Undeterred, Zisumbo filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add by amendment in this case, and he then moved to amend the complaint in this case to consolidate the two cases. After the district court dismissed the second action, Zisumbo withdrew his motion to consolidate and appealed the dismissal of the second suit. We ultimately rejected Zisumbo's ill-conceived effort to end-run the district court's decision. See Zisumbo v. Ogden Reg'l Med. Ctr., 536 Fed.Appx. 832, 833 (10th Cir.2013) (unpublished).

In the meantime, this case proceeded in the district court with that court eventually granting ORMC summary judgment on Zisumbo's good faith and fair dealing claim, hostile work environment claim and 2007 failure to promote claim. Displeased with this ruling, Zisumbo sought reconsideration of the district court's grant of summary judgment on his good faith and fair dealing claim. Alternatively, Zisumbo sought yet again to amend his complaint, this time to add a breach of contract claim. The district court denied reconsideration and again refused to permit Zisumbo to amend.

Zisumbo's remaining claims were tried to a jury. Midway through trial, Zisumbo dismissed his 2009 failure to promote claim, leaving only his discrimination and retaliation claims based on unlawful termination. The jury found against Zisumbo on his discriminatory termination...

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