The federal appeals court based in Denver appeared reluctant on Monday to accept the argument of a former Denver custodian who alleges her race and national origin were the reason she was fired from the city – rather than her supervisors’ stated reason: that she held herself out publicly as a police officer.

Emina Gerovic, a white woman from Bosnia-Herzegovina, sued Denver and its security contractor, HSS, Inc., following her November 2017 termination from the city’s facilities management department.

In Gerovic’s telling, her superiors treated her harsher than the Hispanic employees she worked alongside. But last year, a trial judge sided with the defendants after noting the other custodians Gerovic compared herself to had not advertised on Facebook that they worked in law enforcement, as Gerovic had. She then turned to the U.S. Court of Appeals for the 10th Circuit.

Gerovic “experienced nothing but a constant display of harassment and discrimination of her because she was non-Hispanic. And it’s not just her opinions, but she actually observed all of these things,” her attorney, Nathan Davidovich, told a 10th Circuit panel during oral arguments.

The three appellate judges, however, asked Davidovich about his evidence purporting to show Gerovic was the victim of discrimination for being white.

“Could you give us one of those comparators? Someone who is Hispanic and in a similarly-situated situation? Who did the same thing she did and was not terminated?” asked Senior Judge Mary Beck Briscoe.

Davidovich ticked off other custodians whose alleged misconduct included being rude, violating the dress code or exhibiting poor performance.

“Don’t we have a very different scenario as regards your client?” Briscoe interjected. “That is, holding herself out to be a police officer on Facebook.”

Gerovic worked in facilities management between 2014 and 2017 and was assigned to the Denver Police District Five station. She incurred various disciplinary infractions, including a verbal reprimand for safety reasons, counseling for her cell phone use and a written reprimand for dishonesty.

In September 2017, a facilities supervisor, who is Hispanic, learned about Gerovic’s Facebook profile. Screenshots sent to the human resources department showed Gerovic’s workplace listed as “Denver Police District 5” and “Traffic Operations,” and her title as “Police Officer at Denver Police Department.” There were also photographs of her wearing a hat and clothing with the police department’s logo. The pictures were reportedly taken at a retirement party three years prior.

According to her dismissal letter, dated Nov. 27, 2017, facilities management director James E. Williamson told Gerovic that she was “representing yourself as a police officer and continued to do so after these posts by listing your job as a police officer up until we requested you remove it in September 2017.”

Williamson called it “troubling and unacceptable” for Gerovic to identify herself publicly as a police officer, which could “also be dangerous to you and the public, should someone need police assistance or intervention and come to you for help.”

Gerovic then sued Denver for racial discrimination and retaliation. She also sought to hold HSS liable for placing “be on the lookout” (BOLO) posters with Gerovic’s face in city facilities while Gerovic was on administrative leave. The posters advised security personnel to contact their supervisor if they saw Gerovic enter.

In January 2022, U.S. District Court Judge Raymond P. Moore sided against Gerovic. HSS, he reasoned, did not violate her rights because it acted at the city’s direction in creating the BOLO posters. As for Denver, Moore was unpersuaded by Gerovic’s contention that her Hispanic coworkers also misbehaved but received more lenient discipline.

“The Court finds such incidents are factually distinct from the misconduct that prompted Plaintiff’s firing – representing herself as a police officer on Facebook,” he wrote.

On appeal, Gervoic insisted there was “no evidence” anyone actually believed she was a police officer, maintaining it was a “joke.” Davidovich also argued his client’s firing was unusual, given that the Hispanic custodians “were routinely permitted to engage in harassing and unprofessional behavior.”

Judge Robert E. Bacharach responded that Gerovic had experienced other, less severe discipline for her prior workplace issues, more in line with what her Hispanic colleagues incurred.

“She was fired for what nobody even learned about until September,” Bacharach said.

At the same time, Bacharach pointed out there was evidence suggesting the city’s “ordinary reaction” would have been for supervisors to counsel Gerovic about their expectations, rather than move to terminate her.

The city, in its written brief to the 10th Circuit, argued there were no allegations Gerovic’s supervisors made comments about her nationality. Denver’s lawyers reiterated that it was her burden to show the city treated her differently than Hispanic employees who were otherwise similar to her.

In fact, wrote the Denver City Attorney’s Office, the city had terminated a Hispanic custodian for dishonesty, just as it did with Gerovic.

The case is Gerovic v. City and County of Denver et al.