A former custodian for the City and County of Denver failed to show that race was the reason for her firing, rather than her misleading representation of herself online as a police officer, the federal appeals court based in Colorado ruled on Wednesday.

Denver terminated Emina Gerovic, a white woman from Bosnia-Herzegovina, in November 2017. She alleged she received harsher treatment than Hispanic employees who were similar to her, and that information on her Facebook profile suggesting she was a police officer was a “joke.”

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined the city’s rationale for firing Gervoic reflected its concern about the impersonation of law enforcement, and did not amount to clandestine racial discrimination.

Denver “has consistently taken the position that misrepresenting oneself as a police officer – whether intentionally or unintentionally – raises serious concerns and warrants discipline,” wrote Senior Judge Mary Beck Briscoe in the March 1 order. “Accordingly, the evidence in the record would allow a jury to find that the City honestly believed that an employee misrepresenting herself as a police officer constitutes serious misconduct, and that the City acted in good faith upon those beliefs.”

Gerovic worked as custodian in the police District 5 and administration buildings. She had a history of workplace infractions, which included wearing a Denver Police Department sweatshirt that was not part of her uniform, cell phone-related violations and 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.

Facilities management director James E. Williamson, in his termination letter to Gerovic, wrote that representing oneself as law enforcement, “as a joke or to impress others, is not only deceitful, but could be perceived as impersonating a police officer, which is a serious offense.”

Gerovic then sued the city alleging her supervisor and others retaliated against her and treated her worse because she was white, Bosnian and not Hispanic. She also named as a defendant HSS, Inc., the city’s security contractor, because it distributed “be on the lookout” (BOLO) posters advising security personnel to contact their supervisors if Gerovic entered city buildings while she was on pre-termination administrative leave.

In January 2022, U.S. District Court Judge Raymond P. Moore sided against Gerovic, finding it was not the case that her Hispanic coworkers were similar to her, but she alone received more severe discipline. Moore added that none of the other workers had represented themselves as police officers on Facebook.

Gerovic then appealed to the 10th Circuit.

“You have evidence of all the people she saw with her own eyes, Hispanic people, who were being treated differently,” argued her attorney, Nathan Davidovich, to the appellate panel. “That’s a fact.”

But the 10th Circuit was not convinced. The panel looked at seven Hispanic workers to whom Gerovic compared herself. None of their circumstances appeared similar to Gerovic’s, and one Hispanic custodian was, in fact, fired after repeated findings of dishonesty, as was Gerovic.

To succeed on her “reverse discrimination” claim, Gerovic needed to show the city’s non-discriminatory explanation for firing her was not its true motivation. Briscoe, in the panel’s decision, noted the city had previously warned Gerovic about wearing police-branded clothes in her custodial job, and Gerovic had not demonstrated that supervisors ever changed their rationale for her termination.

Although Gerovic alleged she complained about her Hispanic supervisor’s discrimination prior to her firing, the panel believed the timing of her complaints alone could not support a retaliation claim. Gerovic’s related argument that her national origin played a role was also a non-starter, as she neglected to check the “national origin” box on her original claim of discrimination.

Finally, the panel agreed Gerovic had not shown how HSS, the security contractor, violated her rights by displaying BOLO posters of her while she was on administrative leave. Because Denver had directed HSS to do so, the company itself could not be the cause of Gerovic’s alleged humiliation and embarassment.

“HSS Defendants did not have any input or influence regarding the City’s decision to issue Gerovic’s BOLO posters. Similarly, the HSS Defendants did not have any discretion to rescind the BOLO posters after Gerovic complained about them,” Briscoe wrote.

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