The federal appeals court based in Denver agreed on Monday that a trial judge properly dismissed the discrimination lawsuit of an ex-state employee after discovering the worker likely falsified evidence to support his allegations.

Yoseph Yadessa Kenno worked as a database administrator for the Governor’s Office of Information Technology between 2017 and 2018. The office terminated him following concerns about his performance, but Kenno alleged race-based discrimination and retaliation were the real cause.

During the proceedings, however, the state raised concerns that Kenno manipulated or faked certain electronic files that, if genuine, would have bolstered his case. A trial judge agreed Kenno had doctored the evidence, calling the level of fraud “significant.” The judge dismissed the case and awarded the government nearly $300,000 for the costs of defending against Kenno’s lawsuit.

Now, a three-judge panel for the U.S. Court of Appeals for the 10th Circuit has largely agreed with the handling of Kenno’s case, despite his protestations about evidence and his insistence that the state actually committed the fraud.

“(O)ur review shows that clear and convincing evidence supports the district court’s finding,” wrote Judge Gregory A. Phillips in the panel’s April 17 order.

In Kenno’s version of events, his supervisor gave him a mixed performance review in April 2018, then subsequently put him on a performance improvement plan and placed certain requirements on him that he believed were “unjust.” Kenno spoke to the Colorado Civil Rights Division, explaining he sent an email in May 2018 to his supervisor complaining about discrimination.

A representative with the division told Kenno that his allegations of retaliation did not have merit because the adverse consequences he complained about occurred before he raised the issue of discrimination in May.

But suddenly Kenno produced an email exchange between himself and his supervisor from months earlier, when Kenno was trying to resolve a minor issue involving his health savings account. The email from Kenno, dated March 2018, alleged that the benefits department laughed at him and mentioned they would not pay him “welfare,” which Kenno believed they would not have done “if I wasn’t a black guy.”

His supervisor reportedly wrote back that Kenno should “refrain from making similar accusations going forward.”

If true, the exchange would support the notion that Kenno’s performance improvement plan and work restrictions came after he complained about discrimination. However, Kenno produced four versions of the email during his state and federal proceedings, each one altered slightly. The state contended Kenno had manufactured the email himself.

There was other evidence Kenno had manipulated the materials submitted in support of his claim:

? In a conversation with a coworker that Kenno audio recorded, he appeared to alter a 17-second segment to make it seem as if the coworker, who was white, was actually responsible for a problem Kenno was blamed for

? Kenno reportedly created a repository of emails that, when searched, would retrieve the questionable email exchange about his health savings account, even though the exchange did not surface anywhere else

In June 2021, U.S. Magistrate Judge Michael E. Hegarty agreed to dismiss Kenno’s employment discrimination suit after finding Kenno very likely faked the evidence.

“The true scale of Plaintiff’s fabrication in this case may never be known. But what is known is the significant degree of fraud on the Court and interference with the judicial process,” Hegarty wrote.

Subsequently, he awarded more than $295,000 to the state for its costs in litigating Kenno’s legal claims and in unearthing the deception. Hegarty added that, in his time as a judge, he had “never seen the level of fabrication and fraud on the court as is present in this case.”

Representing himself, Kenno appealed to the 10th Circuit, where he argued it was really the state that had falsified materials, destroyed tens of thousands of emails and “shredded” devices.

The 10th Circuit panel agreed the evidence supported Hegarty’s findings that Kenno altered the audio file, created the health savings account emails himself and registered the repository to hide the emails. The panel largely upheld Hegarty’s handing of evidentiary disputes, with the exception of a video featuring the government’s forensic expert that the defense disclosed relatively late. Kenno should have received the video sooner, the appellate judges acknowledged.

At the time of the lawsuit’s original dismissal, Kenno would not comment to Colorado Politics when asked repeatedly if he denied fabricating the emails.

The case is Kenno v. Colorado Governor’s Office of Information Technology et al.