                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    September 4, 2015

                                                                      Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                         Clerk of Court
                        _________________________________

RAYMOND L. ZISUMBO,

      Plaintiff - Appellant/Cross -
      Appellee,

v.                                                Nos. 13-4179, 14-4014, 14-4019

OGDEN REGIONAL MEDICAL
CENTER,

      Defendant - Appellee/Cross -
      Appellant.
                      _________________________________

                    Appeal from the United States District Court
                              for the District of Utah
                           (D.C. No. 1:10-CV-00073-TS)
                      _________________________________

April Lynn Hollingsworth, Hollingsworth Law Office, Salt Lake City, Utah, for Plaintiff-
Appellant.

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, Utah, for Defendant-
Appellee.
                       _________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

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

                                                  2
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

                                               3
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

                                              4
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.

                                              5
      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

                                               6
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 F. App’x 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 claim but found in his favor on his

retaliatory termination claim.

      In the remedy phase, Zisumbo sought back pay up to trial, and reinstatement to

his job or front pay for three years, for total damages of nearly $550,000. The district

court awarded him only $65,228.04, concluding Zisumbo’s post-employment guilty

plea to the misdemeanor assault of his daughter curtailed his back pay and rendered

him ineligible for reinstatement or front pay.



                                                 7
         After the district court entered judgment, both parties sought attorneys’ fees

and ORMC renewed its motion for judgment as a matter of law on Zisumbo’s

retaliation claim. The district court denied ORMC’s motion for judgment as a matter

of law and granted in part both parties’ motions for attorneys’ fees, reducing

Zisumbo’s fee request by 40% to $93,212, based primarily on his limited success in

this litigation.

                                        DISCUSSION

I.       The district court did not abuse its discretion in denying Zisumbo’s motion
         for leave to file a second amended complaint.

         Nearly two years after this litigation began and more than four months after

the scheduling order’s deadline for amending pleadings, Zisumbo sought to amend

his complaint a second time. Specifically, he sought to add a race discrimination

claim against ORMC and Rodebush under 42 U.S.C. § 1981 based on the same facts

underlying his Title VII race discrimination claims. He also sought to add three state-

law claims against ORMC based on information he discovered more than five months

before the deadline for amending pleadings. The district court denied Zisumbo’s

motion for leave to amend, and Zisumbo appeals. We review the district court’s

decision for abuse of discretion. Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir.

2009).

         The parties dispute whether Rule 15 or Rule 16 of the Federal Rules of Civil

Procedure governs our consideration of this issue. Zisumbo urges application of Rule

15, which generally governs amendments to pleadings. ORMC, on the other hand,


                                                 8
argues that because Zisumbo’s amendment would have effectively amended the

scheduling order, Rule 16—which specifically governs amendments to scheduling

orders—applies instead.

      As relevant here, Rule 15 allows a party to amend a pleading only with the

court’s leave, which the “court should freely give . . . when justice so requires.” Fed.

R. Civ. P. 15(a)(2). See Bylin, 568 F.3d at 1231; Minter v. Prime Equip. Co., 451

F.3d 1196, 1205 n.4 (10th Cir. 2006). Rule 16(b)(4) is arguably more stringent than

Rule 15, permitting scheduling order amendments “only for good cause and with the

judge’s consent . . . .” See Bylin, 568 F.3d at 1231. But we need not resolve this

dispute because Zisumbo failed to provide any justification for his delay, and

therefore he can’t satisfy even Rule 15’s more lenient standard.

      The district court denied Zisumbo’s motion to amend his complaint because

Zisumbo failed to provide an adequate explanation for the motion’s untimeliness.

While lateness itself does not justify denying an amendment, “denial of leave to

amend is appropriate ‘when the party filing the motion has no adequate explanation

for the delay.’” Minter, 451 F.3d at 1205, 1206 (quoting Frank v. U.S. West, Inc., 3

F.3d 1357, 1365-66 (10th Cir. 1993)); see also Smith v. Aztec Well Servicing Co., 462

F.3d 1274, 1285 (10th Cir. 2006) (holding that undue delay is an appropriate

justification for denying leave to amend under Rule 15).

      Zisumbo offers two primary explanations for his delay. First, he argues his

lawyer did not realize until January 2012 that Zisumbo could assert a § 1981 claim,

and that his lawyer’s lack of knowledge justifies his delay in seeking to amend. But

                                               9
we have previously held that such belated realizations do not justify granting an

untimely motion to add new claims. See Woolsey v. Marion Labs., Inc., 934 F.2d

1452, 1462 (10th Cir. 1991). Moreover, Zisumbo admits he possessed all of the facts

necessary to assert his § 1981 claim when he filed his first amended complaint. See

Frank, 3 F.3d at 1365 (listing “failure to cure deficiencies by amendments previously

allowed” as a permissible justification for denying leave to amend).

      Second, Zisumbo contends he first obtained information to support the state-

law claims during discovery. But the record shows that Zisumbo possessed all of the

facts necessary to assert his state-law claims by April 2011—five months before the

deadline for amending his complaint. Given the lack of any adequate explanation for

Zisumbo’s delay in seeking permission to amend his complaint, we conclude the

district court did not abuse its discretion in denying Zisumbo’s motion for leave to

file a second amended complaint. See Woolsey, 934 F.2d at 1462 (finding no abuse of

discretion on similar facts).

II.    The district court did not err in granting ORMC’s motion for summary
       judgment on Zisumbo’s good faith and fair dealing claim.

      In his good faith and fair dealing claim, Zisumbo alleged that ORMC’s written

code of conduct created an implied contract that gave rise to a duty of good faith and

fair dealing, which ORMC breached when it terminated his employment. ORMC

moved for summary judgment on this claim, arguing it owed Zisumbo no duty of

good faith and fair dealing because it disclaimed any contractual relationship with

Zisumbo.


                                             10
      The district court granted summary judgment to ORMC after recharacterizing

Zisumbo’s claim as one for breach of contract. Specifically, the court reasoned that

Zisumbo’s response to ORMC’s summary judgment motion suggested he was

claiming that ORMC violated only those duties arising under the express terms of its

code, rather than some implied duty arising outside its four corners. See United States

v. Basin Elec. Power Co-op., 248 F.3d 781, 796 (8th Cir. 2001) (explaining implied

good-faith covenant has “nothing to do with the enforcement of terms actually

negotiated”) (internal quotation marks omitted). The district court then concluded

that because Zisumbo had not pled a breach of contract claim, he could not rely on an

alleged breach of contract to defeat ORMC’s motion for summary judgment. The

district court later denied Zisumbo’s motion to reconsider and his motion for leave to

amend his complaint to add a breach of contract claim. Zisumbo appeals all three

decisions.

      We review the district court’s grant of summary judgment de novo, applying

the same standard the district court applied and viewing the evidence in the light

most favorable to the non-moving party, here Zisumbo. McBride v. Peak Wellness

Ctr., Inc., 688 F.3d 698, 703 (10th Cir. 2012). Summary judgment is appropriate

when “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review for abuse of

discretion the district court’s decisions denying Zisumbo’s motion to reconsider and

his motion for leave to amend. See Bylin, 568 F.3d at 1229; Sorbo v. United Parcel

Serv., 432 F.3d 1169, 1177 (10th Cir. 2005). Although we decline to follow the

                                             11
district court’s rationale, we affirm its conclusion because Zisumbo failed to show he

had a contractual relationship with ORMC that could have given rise to a duty of

good faith and fair dealing.

      Under Utah law, which governs Zisumbo’s good faith and fair dealing claim,

an employee like Zisumbo who is “hired for an indefinite period is presumed to be an

employee at will who can be terminated for any reason whatsoever so long as the

termination does not violate a state or federal statute.” Johnson v. Morton Thiokol,

Inc., 818 P.2d 997, 1000 (Utah 1991). An employee may overcome this presumption

by showing he had an express or implied employment contract modifying his at-will

status. See id. at 1000-01; see also Tomlinson v. NCR Corp., 345 P.3d 523, 527, 531

reh’g denied (Feb. 11, 2015) (noting Utah Supreme Court has “consistently rejected

the notion of a free-standing implied covenant of good faith and fair dealing in the

absence of a contract”). Zisumbo does not contend he had an express contract with

ORMC. Instead, he argues only that ORMC assumed binding obligations to its

employees by implied contract based on promises made in ORMC’s code of conduct.

      Whether an implied contract exists “turns on the objective manifestations of

the parties’ intent,” which include “announced personnel policies” and “employment

manuals.” Tomlinson, 345 P.3d at 527 (internal quotation marks omitted); accord

Morton Thiokol, 818 P.2d at 1000. Indeed, the Utah Supreme Court has consistently

held that “an employer’s internally adopted policies and procedures concerning

discharge can be sufficient evidence to rebut the presumption of at-will employment

and can, in effect, become part of the contractual relationship between the employer

                                             12
and the employee.” Tomlinson, 345 P.3d at 527, 531. But a “‘clear and conspicuous

disclaimer, as a matter of law, prevents employee manuals or other like material from

being considered as implied-in-fact contract terms.’” Id. at 529 (quoting Morton

Thiokol, 818 P.2d at 1003); see also Cabaness v. Thomas, 232 P.3d 486, 503 (Utah

2010) (noting that court retains power to decide whether, as a matter of law, a

reasonable jury could find that an implied contract exists). The “employee has the

burden of establishing the existence of an implied-in-fact contract provision” by

showing that the parties actually agreed to be bound by the employee manual’s terms.

Morton Thiokol, 818 P.2d at 1001.

          In his opening brief, Zisumbo fails to identify any specific provisions of

ORMC’s code of conduct that might create an enforceable obligation to ORMC’s

employees. On this basis alone, we could reject Zisumbo’s challenge to the district

court’s resolution of his good faith and fair dealing claim. See Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that failure to cite legal authorities

and portions of record on which appellant relies may result in forfeiture of argument

on appeal).

          Zisumbo’s reply brief does point to a few code provisions that he asserts create

enforceable obligations for ORMC. But even assuming the code contains provisions

that could operate as contract provisions, Zisumbo’s employment application and

employee handbook acknowledgment card contained clear and conspicuous

disclaimers that disclaim any contractual relationship that might otherwise have

arisen.

                                                 13
      Zisumbo’s application stated that “any employee handbook . . . [would] not

constitute an employment contract, but [would] be merely a gratuitous statement of

facility policies.” App. for Empl., Doc. 42-1 at 50 (capitalization and emphasis

omitted). Zisumbo concedes this provision disclaimed any contractual relationship,

but he contends it doesn’t apply here because the code of conduct on which he relies

is not an “employee handbook.” But Zisumbo’s argument ignores additional language

in the application clarifying that an employee’s at-will status could “only be altered

by a written contract of employment” that was “specific as to all material terms and

. . . signed by [the employee] and [ORMC’s] Administrator.” Id. Notably, the

handbook acknowledgment card that Zisumbo signed repeated this limitation.

Zisumbo does not argue that he and ORMC ever entered a written contract that would

fall within this strict exception to employment-at-will.

      Finally, although Zisumbo is correct in asserting that he signed ORMC’s

employment application and handbook acknowledgment card before receiving the

code of conduct, Utah courts have indicated that disclaimers apply with equal force

to future alleged agreements. See Morton Thiokol, 818 P.2d at 1003-04 (holding that

in light of employee handbook’s disclaimer, subsequent alleged agreements were

“insufficient to raise a triable issue concerning a subsequent modification”).

Therefore, we affirm the district court’s grant of summary judgment in favor of

ORMC on Zisumbo’s good faith and fair dealing claim. Tomlinson, 345 P.3d at 530;

accord Morton Thiokol, 818 P.2d at 1003; Johnson v. City of Murray, 909 F. Supp.

2d 1265, 1296-97 (D. Utah 2012), aff’d 544 F. App’x 801, 807 (10th Cir. 2013)

                                              14
(unpublished). Having done so, we further conclude the district court did not abuse

its discretion in denying Zisumbo’s motion to reconsider and motion for leave to

amend.

III.     The district court did not err in denying ORMC’s renewed motion for
         judgment as a matter of law on Zisumbo’s retaliation claim.

       In its cross-appeal, ORMC contends the district court erred in denying its

renewed, post-trial motion for judgment as a matter of law on Zisumbo’s retaliation

claim. It contends that no reasonable jury could have found a causal connection

between Zisumbo’s complaints of discrimination and ORMC firing him, or found

that ORMC’s reason for firing Zisumbo was false. We review the district court’s

decision de novo. McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1136 (10th

Cir. 2006).

       Judgment as a matter of law “is warranted only if the evidence points but one

way and is susceptible to no reasonable inferences supporting the party opposing the

motion. We do not weigh the evidence, pass on the credibility of the witnesses, or

substitute our conclusions for those of the jury.” Id. at 1136 (internal quotation marks

omitted); see also Fed. R. Civ. P. 50(a). In other words, judgment as a matter of law

is appropriate if, construing the evidence and all inferences in the light most

favorable to the nonmoving party, “the court is certain the evidence conclusively

favors [the moving] party such that” no reasonable jury could “arrive at a contrary

verdict.” Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996) (internal quotation

marks omitted).

                                              15
      To prevail on a retaliatory discharge claim, a plaintiff must establish that the

decision to terminate him resulted from retaliatory animus. See Univ. of Texas Sw.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (holding that Title VII retaliation

plaintiff must show “but-for” causation); Baty v. Willamette Indus., Inc., 172 F.3d

1232, 1243 (10th Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002). Following a full trial on the merits, the

question is whether the plaintiff presented sufficient evidence for the jury to find that

adverse employment action was taken against him because he engaged in protected

activity. Baty, 172 F.3d at 1243; see also 42 U.S.C. § 2000e-3(a). The plaintiff can

ordinarily meet this burden “through the combination of a prima facie case and the

presentation of ‘sufficient evidence to find that the employer’s asserted justification

is false.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir. 2000)

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).

      In a case for retaliation under Title VII, the plaintiff’s prima facie case consists

of showing (1) he engaged in protected opposition to discrimination; (2) he suffered

an adverse action that a reasonable employee would have found material; and

(3) there is a causal nexus between his opposition and the employer’s adverse action.

Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir. 2007); see also

Nassar, 133 S. Ct. at 2533. Only the causal connection element is at issue here.

      A.     Causal Connection

      To establish a causal connection between his complaints of race discrimination

and his termination, Zisumbo must show (among other things) that the individuals or

                                               16
individuals who decided to terminate his employment knew of his discrimination

complaints when deciding to terminate him. See Zokari v. Gates, 561 F.3d 1076,

1081 (10th Cir. 2009) (stating plaintiff must show that “individuals who took adverse

action against him knew of his protected opposition”); Petersen v. Utah Dep’t of

Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (noting that “employer’s action against

an employee cannot be because of that employee’s protected opposition unless the

employer knows the employee has engaged in protected opposition” (second

emphasis added)). Aside from ORMC’s asserted nondiscriminatory reason for firing

Zisumbo, which we discuss below, this is the only aspect of causation that ORMC

challenges. Specifically, ORMC contends that Bissenden alone made the decision to

terminate Zisumbo and that she did not know he had complained of discrimination.

Instead, ORMC contends Bissenden knew only that Zisumbo had complained to the

ORMC ethics line regarding unprofessional behavior. But we need not consider

whether Bissenden knew of Zisumbo’s complaints of race discrimination because a

reasonable jury could reject ORMC’s underlying premise that Bissenden alone

decided to terminate Zisumbo.

      As ORMC suggests, the record does show that Bissenden testified she was the

“sole person” who decided to terminate Zisumbo’s employment and that Rodebush

and Taylor didn’t “have any part in the decision.” Trial Tr., Doc. 238, at 101. But

Bissenden also testified that generally she and “[t]he supervisor . . . make the

[termination] decision together.” Trial Tr., Doc. 235, at 48. Similarly, Rodebush

testified he had authority to fire his employees and typically would “run those

                                              17
decisions by” human resources. Trial Tr., Doc. 236, at 100. Taylor also testified that

it was “common practice” at ORMC for department directors to hire and fire within

their departments. Trial Tr., Doc. 237, at 26.

      In addition to the tension between Bissenden’s, Rodebush’s, and Taylor’s

testimony, we are swayed by the memo Bissenden prepared documenting the details

of their meeting with Zisumbo. The memo confirms, “Mr. Rodebush indicated to Mr.

Zisumbo that we had officially verified that the St. Mark’s letter was fraudulent and

that he was dismissed from employment . . . for presenting the document to us as

authentic.” Bissenden Memo, Doc. 162-6 (emphasis added).

      We have no hesitancy in concluding that together, the testimony and the memo

would permit a reasonable jury to conclude that both Rodebush and Bissenden made

the decision to terminate Zisumbo’s employment. In so holding, we note that this is

not a situation, as ORMC contends, of allowing the jury to both disregard discredited

testimony and to rely on that testimony to reach a conclusion contrary to it. See Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984) (noting that

normally, “discredited testimony is not considered a sufficient basis for drawing a

contrary conclusion”). Nor is this a case of speculative “must-have” and “could-

have” assumptions. Rather, a reasonable jury could find that Rodebush, who had

authority to terminate Zisumbo’s employment, actually did so.

      Having rejected the premise of ORMC’s argument—that Bissenden was the

sole decision-maker—the remainder of the causal connection inquiry is relatively

straightforward. ORMC does not dispute that Rodebush knew of Zisumbo’s

                                                 18
complaints of race discrimination, nor does it respond to Zisumbo’s argument that if

Rodebush jointly made the decision to fire Zisumbo, a reasonable jury could have

found that a causal connection existed. Thus, we agree with the district court that,

drawing all reasonable inferences in Zisumbo’s favor, a reasonable jury could have

found that the decision-maker knew of Zisumbo’s complaints of race discrimination.

      B.     Pretext

      ORMC also contends the district court erred in denying its renewed, post-trial

motion for judgment as a matter of law because no reasonable jury could have

concluded that ORMC’s stated reason for terminating Zisumbo’s employment—

providing fraudulent letters regarding previous employment—was false, i.e.,

pretextual. We disagree.

      “A plaintiff may show pretext by demonstrating ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could rationally

find them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.’” Anderson v. Coors Brewing Co., 181 F.3d

1171, 1179 (10th Cir. 1999) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997)). Mere conjecture that the employer’s explanation is pretext,

however, is insufficient—as a matter of law—to show pretext. See id. The focus of a

Title VII pretext analysis is on the decision-makers’ motivation. See Turner v. Pub.

Serv. Co. of Colo., 563 F.3d 1136, 1144 (10th Cir. 2009); see also Nassar, 133 S. Ct.

at 2533.

                                              19
      Here, the timing of Zisumbo’s termination supports an inference that ORMC

terminated his employment because he complained about discrimination. See

Anderson, 181 F.3d at 1179 (explaining that “retaliatory motive may be inferred

when an adverse action closely follows protected activity”). Specifically, Zisumbo

contends he complained about race discrimination to Rodebush, ORMC’s ethics line,

and the Utah Labor Commission in mid-September 2009. ORMC terminated his

employment less than a month later on October 8, 2009. Although evidence of

temporal proximity between the protected activity and the alleged adverse

employment action alone is insufficient to show pretext, it can support a finding of

pretext when combined with other evidence of pretext. Lobato v. N.M. Env’t Dep’t,

733 F.3d 1283, 1293 (10th Cir. 2013); Proctor v. United Parcel Serv., 502 F.3d 1200,

1213 (10th Cir. 2007). Zisumbo produced such evidence at trial.

      For example, Zisumbo produced evidence demonstrating that ORMC did not

fully investigate his ethics line complaint and complaint of race discrimination.

Instead, that investigation quickly morphed into an investigation of Zisumbo’s past

actions and specifically focused on the letters Zisumbo had given Rodebush months

earlier. Although Rodebush had possessed the letters for several months, he claimed

he’d placed them in a desk drawer and never reviewed them until he showed them to

ORMC’s internal investigator, Taylor. Once the two men reviewed them together,

they immediately suspected the letters were fraudulent, and they involved ORMC’s

human resources director, Bissenden. Then, contrary to Bissenden’s usual procedure

for investigating an employee suspected of falsifying information, Bissenden neither

                                             20
fully determined the accuracy of the information contained in the letters nor

investigated Zisumbo’s intent in submitting them. Instead, once Bissenden verified

that the St. Mark’s letter did not come from St. Mark’s, Rodebush and Bissenden

terminated Zisumbo’s employment.

       Construing this evidence in the light most favorable to Zisumbo, a reasonable

jury certainly could have believed that Zisumbo’s abrupt termination—allegedly

based on fraudulent letters that his supervisor had held for months and following

closely on the heels of his complaints of race discrimination—was instead based on

retaliation for Zisumbo’s assertion of race discrimination. We thus affirm the district

court’s decision denying ORMC’s renewed motion for judgment as a matter of law

on Zisumbo’s retaliation claim.

IV.    The district court did not err in denying Zisumbo’s request for a punitive
       damages instruction.

       Next, Zisumbo argues the district court erred by refusing to instruct the jury on

punitive damages. Prior to trial, Zisumbo submitted a proposed instruction regarding

punitive damages. The district court ultimately denied the request, finding Zisumbo had

presented no evidence “of the type of corporate negligence [or] malfeasance that would”

justify punitive damages. Trial Tr., Doc. 237, at 67. We review the district court’s

decision de novo. See Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262

(10th Cir. 1995).

       A Title VII plaintiff is entitled to punitive damages if his employer engaged in

discriminatory practices “with malice or with reckless indifference to [his] federally


                                                21
protected rights.” 42 U.S.C. § 1981a(b)(1). “Malice” and “reckless indifference” require

proof the employer acted “in the face of a perceived risk that its actions [would] violate

federal law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535-36 (1999).

       Because “agency principles limit vicarious liability for punitive awards,” id. at

541, plaintiffs seeking punitive damages for a Title VII violation must overcome the

additional hurdle of “imput[ing] liability for punitive damages to” the employer, id. at

539. An employee may not hold his employer “vicariously liable for the discriminatory

employment decisions of managerial agents where the[] decisions [were] contrary to the

employer’s ‘good-faith efforts to comply with Title VII.’” Id. at 545 (quoting Kolstad v.

Am. Dental Ass’n, 139 F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting), vacated, 527

U.S. 526 (1999)).

       Although “‘Kolstad provides us no definitive standard for determining what

constitutes good-faith compliance with’ Title VII,” we have held that Kolstad’s good-

faith-compliance standard requires an employer to at least (1) adopt anti-discrimination

policies, (2) make a good faith effort to educate its employees about these policies and

Title VII’s prohibitions, and (3) make good faith efforts to enforce an anti-discrimination

policy. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) (quoting

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248 (10th Cir. 1999)); see also Kolstad,

527 U.S. at 545-46.

       The focus of these inquiries is on the employer; Zisumbo must show that

ORMC—not just its managerial employees—failed to make good-faith efforts to comply

with Title VII. Harsco Corp. v. Renner, 475 F.3d 1179, 1189 (10th Cir. 2007). Because

                                                22
ORMC “submitted substantial evidence showing that the company established

comprehensive polic[i]es and training procedures in an effort to comply with Title VII,”

Zisumbo faces an uphill battle. Harsco, 475 F.3d at 1189. In addition to annually training

its employees on its anti-discrimination policies, ORMC consistently investigated reports

of discrimination and incorporated into every manager’s or supervisor’s performance

evaluation their compliance with anti-discrimination policies.

       Zisumbo concedes that ORMC adopted anti-discrimination policies, but he argues

there is no evidence that ORMC actually adhered to those policies. In support, he

contends that neither Taylor nor Bissenden adhered to ORMC’s policies with respect to

their investigation of his allegations of race discrimination despite the fact that Taylor

received training on those policies and Bissenden wrote them. But we have rejected a

similar argument, noting the inherent flaw in its rationale: “If failure of supervisors to

comply with company policy were sufficient evidence to prove the lack of a good-faith

effort to train, the Kolstad defense would be effectively eliminated.” Id. at 1189.

Moreover, although a reasonable jury could have found Taylor’s and Bissenden’s

investigations in this case to be lacking, those failures don’t establish a broader failure by

ORMC to enforce anti-discrimination policies.

       In suggesting he was entitled to a punitive damage instruction, Zisumbo relies on a

trio of cases, each of which is distinguishable: McInnis v. Fairfield Communities, Inc.,

458 F.3d 1129, 1139 (10th Cir. 2006), Cadena v. Pacesetter Corp., 224 F.3d 1203, 1212

(10th Cir. 2000), and Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1186-87 (10th

Cir. 1999).

                                                 23
       Unlike the plaintiff-employee in McInnis, who repeatedly complained to upper-

level management over a year-long period, Zisumbo complained only twice: once to his

supervisor (Rodebush), and once to the ethics line. See 458 F.3d at 1139. And unlike the

employer in Cadena, whose sexual harassment training was so lacking that a jury could

find that the employer failed to educate its employees about its non-discrimination

policies, ORMC presented more than sufficient evidence of its efforts to train its

employees regarding its anti-discrimination policies. See 224 F.3d at 1212. Further, the

facts here are unlike those before us in Knowlton, where the plaintiff proved pervasive

sex discrimination that the company president knew about and permitted. See 189 F.3d at

1186-87.

       Instead, the facts of this case more closely resemble those in Harsco, 475 F.3d

at 1189-90, where this court upheld the district court’s rejection of the plaintiff’s

request for a punitive damages instruction because she proved only that her

supervisors failed to comply with the company’s anti-discrimination policies. Here,

although Taylor and Bissenden did not conduct their investigations consistently with

ORMC’s policies, their shortcomings cannot be imputed to ORMC without more.

Indeed, in McInnis we noted that if a retaliating supervisor’s knowledge of retaliation

was automatically imputed to the employer, it could spell the end of the Kolstad

defense. McInnis, 458 F.3d at 1139 n.7. Thus, we agree with the district court’s

decision that the evidence presented at trial did not, as a matter of law, support a

finding that ORMC should be subject to punitive damages.



                                                24
V.     The district court did not abuse its discretion in determining Zisumbo’s back
       pay award, or in denying Zisumbo’s request for front pay and/or
       reinstatement based on Zisumbo’s post-employment assault conviction.

       After prevailing on his retaliation claim, Zisumbo sought Title VII remedies in the

form of approximately $400,000 in back pay from his termination date, October 8, 2009,

through September 1, 2013. He also sought reinstatement, or, alternatively, front pay for

three years. But the district court substantially modified this request based on Zisumbo’s

September 15, 2010, conviction for misdemeanor assault of his daughter, which the court

found constituted “egregious post-termination misconduct sufficient to curtail back pay

and bar reinstatement or front pay.” Mem. & Order, Doc. 191 at 21. The court thus

limited Zisumbo’s back pay to approximately $65,000, covering the period between

Zisumbo’s termination on October 8, 2009, and his conviction on September 15, 2010.

       Zisumbo appeals, arguing the district court abused its discretion by limiting his

back pay and denying him reinstatement and front pay based on post-termination

misconduct. ORMC cross-appeals. It argues the district court abused its discretion by

refusing to limit Zisumbo’s back pay to the single day that elapsed between

Zisumbo’s termination on October 8, 2009, and ORMC’s acquisition of new

information on October 9, 2009, confirming its suspicions about the inauthenticity of

the McKay Dee letter. And on the same date, ORMC alleges, additional misconduct

regarding the St. Mark’s letter occurred. We review the district court’s rulings on

back pay, reinstatement, and front pay for abuse of discretion. Bartee v. Michelin N.

Am., Inc., 374 F.3d 906, 911 (10th Cir. 2004); Abuan v. Level 3 Commc’ns, Inc., 353

F.3d 1158, 1176 (10th Cir. 2003).

                                               25
      A.       Back Pay after October 9, 2009

      District courts possess considerable discretion to devise appropriate remedies

for Title VII violations. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-22

(1975); Estate of Pitre v. W. Elec. Co., 975 F.2d 700, 704 (10th Cir. 1992). But the

exercise of this discretion must be tied to Title VII’s twin purposes of “provid[ing] an

incentive to employers to avoid discriminatory practices” and “‘making persons

whole for injuries suffered on account of unlawful employment discrimination.’”

Estate of Pitre, 975 F.2d at 704 (quoting Albemarle, 422 U.S. at 418).

      Typically, back pay is calculated from the date of wrongful termination to the

end of trial. Wulf v. City of Wichita, 883 F.2d 842, 871 n.37 (10th Cir. 1989). But an

employee’s back pay may be limited. For example, if an employer learns that the

employee—while employed—committed “‘wrongdoing . . . of such severity that the

employee in fact would have been terminated on those grounds alone if the employer

had known of it at the time of the discharge,’ the employee may . . . be denied

backpay to which [he] would otherwise be entitled.” Medlock v. Ortho Biotech, Inc.,

164 F.3d 545, 554 (10th Cir. 1999) (quoting McKennon v. Nashville Banner Pub.

Co., 513 U.S. 352, 362-63 (1995)). Implicit in this rule is that at the time the

employee was fired the employer was not aware of the information that it later claims

would have provided an independent and legitimate reason for termination. See Ricky

v. Mapco, Inc., 50 F.3d 874, 875-76 (10th Cir. 1995) (acknowledging that employer

must show it was unaware of allegations of misconduct when employee was

terminated).

                                               26
      ORMC argues that on October 9, 2009—the day after it terminated Zisumbo’s

employment—it received two pieces of information that would have provided

legitimate justifications for its decision to terminate Zisumbo: (1) confirmation the

McKay Dee letter did not come from that hospital; and (2) a phone call from

Zisumbo’s lawyer stating “they” had validated the St. Mark’s letter and that “Ashley”

at St. Mark’s wrote it, which according to Bissenden turned out to be false.

             1.     McKay Dee letter

      At the time ORMC terminated Zisumbo’s employment, Bissenden had not yet

confirmed that the McKay Dee letter was fraudulent. But both Rodebush and

Bissenden had inspected the letter and concluded it was suspicious, and based on that

suspicion, they discussed it with Zisumbo before terminating his employment. The

following day, Bissenden continued her investigation and confirmed that McKay Dee

had not issued the letter. ORMC contends that Zisumbo’s back pay should be limited

to one day based on this confirmation of the letter’s inauthenticity.

      But the district court rejected this theory, finding that ORMC relied on the

apparent inauthenticity of the McKay Dee letter as a reason for terminating

Zisumbo’s employment. The record supports the district court’s finding. For instance,

although Bissenden denied that her suspicions about the McKay Dee letter factored

into Zisumbo’s termination, Rodebush stated that the letters generally raised

concerns about Zisumbo’s honesty and that all three letters were discussed in the

meeting. And Taylor testified that Zisumbo was “[t]erminated for falsifying some

documents.” Trial Tr., Doc. 236, at 175. Under these circumstances, Bissenden’s

                                              27
confirmation of the fraudulent nature of the McKay Dee letter was not after-acquired

evidence limiting Zisumbo’s entitlement to back pay, and the district court did not

abuse its discretion in so finding. See Ricky, 50 F.3d at 875-76.

               2.     St. Mark’s letter

       ORMC contends it learned of additional evidence of misconduct when, on the day

following Zisumbo’s termination, October 9, 2009, Bissenden received a call from

Zisumbo’s attorney, who advised that “they” had confirmed the authenticity of the St.

Mark’s letter and that “Ashley” at St. Mark’s prepared it. Bissenden immediately

contacted the human resource department at St. Mark’s and spoke with Ashley Jorgensen,

who verified that she did not write the letter because she was on maternity leave on the

date of the letter.

       The district court found this evidence did not constitute after-acquired evidence

limiting back pay for several reasons. Primarily, the district court concluded that even if

the information provided by Ashley at St. Mark’s revealed any additional deception, that

deception could not be attributed to Zisumbo. We agree and conclude the district court

did not abuse its discretion in making this finding.

       B.      Front Pay, Reinstatement, and Back Pay After September 15, 2010

       The district court curtailed Zisumbo’s back pay and denied his requests for front

pay and reinstatement based on Zisumbo’s act of pleading guilty, on September 15, 2010,

to assaulting his daughter. Zisumbo argues this was error.

       Front pay is “money awarded for lost compensation during the period between

judgment and reinstatement or in lieu of reinstatement” to make the plaintiff whole.

                                                28
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001); accord McInnis,

458 F.3d at 1145. “‘Because determining a front pay award requires the district court to

predict future events and consider many complicated and interlocking factors, we review

such awards with considerable deference, reversing only for an abuse of discretion.’”

Abuan, 353 F.3d at 1177 (quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1458 (10th

Cir. 1997), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina

Internet Ltd., 661 F.3d 495 (10th Cir. 2011)).

       Like back pay, front pay and reinstatement may also be limited based on an

employee’s actions: “It would be both inequitable and pointless to order the reinstatement

of someone the employer would have terminated, and will terminate, in any event and

upon lawful grounds.” McKennon, 513 U.S. at 362. Although McKennon dealt only with

“after-acquired evidence of pre-termination wrongdoing,” we have suggested that its

“logic . . . may permit certain limitations on relief based on post-termination conduct”

too. Medlock, 164 F.3d at 555 (citing Christine Neylon O’Brien, The Law of After-

Acquired Evidence in Employment Discrimination Cases: Clarification of the Employer's

Burden, Remedial Guidance, and the Enigma of Post-Termination Misconduct, 65

UMKC L. Rev. 159, 174 (1996) approvingly as “concluding that egregious post-

termination misconduct should ordinarily bar reinstatement and curtail backpay”).

       Federal courts disagree regarding whether post-termination conduct can ever

curtail an employee’s right to front pay, reinstatement, or back pay. See Jones v.

Nissan N. Am., Inc., 438 F. App’x 388, 406-07 (6th Cir. 2011) (unpublished)

(compiling cases). But we need not address that broader legal question here because

                                                 29
Zisumbo concedes on appeal that he “does not argue that back pay, front pay, and

reinstatement may never be limited by evidence of post-termination misconduct.”

Zisumbo Resp./Reply Br. at 31 (internal quotation marks omitted).

      Instead, Zisumbo asserts two narrower arguments: (1) that his post-termination

misdemeanor conviction should not limit his right to front pay, reinstatement, or back

pay because ORMC did not show that it would have terminated his employment

because of the misdemeanor, and (2) the misdemeanor conviction should not limit his

back pay because the misdemeanor directly resulted from his termination.

             1.     Termination for misdemeanor
      First, Zisumbo argues that his post-termination misdemeanor conviction

should not limit his right to front pay, reinstatement, or back pay because ORMC did

not show that it would have terminated Zisumbo for the misdemeanor. Zisumbo

reasons that if he had remained employed by ORMC, the hospital would not have

known about his misdemeanor conviction and therefore would not have fired him for

it. But under McKennon, “[o]nce an employer learns about employee wrongdoing

that would lead to a legitimate discharge, we cannot require the employer to ignore

the information, even if it is acquired during the course of discovery in a suit against

the employer and even if the information might have gone undiscovered absent the

suit.” McKennon, 513 U.S. at 362.

      Alternatively, Zisumbo argues that even if we assume ORMC would have

learned of the misdemeanor conviction had he remained employed there, ORMC

failed to prove that it would have terminated him for that conviction. In support of

                                              30
this theory, Zisumbo points out that the record contains no evidence of ORMC

terminating specific employees for misdemeanor convictions.

      While we agree that the record contains no such specific examples, it contains

ample evidence from which the district court could reasonably conclude that the

hospital would terminate employees for misdemeanor convictions. For example, the

evidence showed that ORMC conducts background checks on all employment

applicants and has a written policy providing that employment applicants, including

rehires, may be denied employment based on a felony or misdemeanor conviction.

Importantly, the purpose of the background checks is to screen out applicants who

may pose a safety risk to ORMC’s patients. With only one exception—an applicant

with a ten-year-old conviction for retail theft that the applicant disclosed—ORMC

has disqualified applicants with a criminal conviction on their records. And although

the policy does not address current employees, Bissenden testified that ORMC holds

current employees to the same standards as employment applicants. Under these

circumstances, we hold that the district court did not abuse its discretion in

concluding that ORMC would have terminated Zisumbo’s employment for the

misdemeanor conviction.

             2.     Misdemeanor resulted from termination
      Second, Zisumbo argues the misdemeanor conviction should not count against

him because it resulted directly from his termination. See Medlock, 164 F.3d at 555.

In support, Zisumbo points to his testimony that losing his job caused him mental

distress, which in turn led to his treatment by a psychiatrist who prescribed the

                                              31
Ambien he took the night of the assault. And, according to Zisumbo, an adverse

reaction to Ambien caused him to assault his daughter. Zisumbo speculates that had

he not lost his job at ORMC, the chain of events that led him to assault his daughter

would never have occurred.

       Critically, Zisumbo also testified that he began receiving treatment from a

psychiatrist and taking Ambien before ORMC terminated his employment, thus

undermining the causal connection between his termination and the assault. In that

regard, the facts here are distinguishable from those in Medlock.

       In Medlock, the plaintiff “touched and cursed at Defendant’s counsel” at a

post-termination unemployment compensation benefits hearing. Id. (internal

quotation marks omitted). On appeal, the defendant argued the district court erred in

refusing to instruct the jury that it could limit the plaintiff’s damages if the defendant

could show that the plaintiff’s conduct at the hearing was so severe that the defendant

would have terminated the plaintiff on that basis alone. We rejected the defendant’s

argument, pointing out that “[t]he alleged misconduct . . . occurred at a hearing

occasioned by plaintiff’s termination,” and thus arose as a “direct result” of the

retaliatory termination. Id.

       Here, Zisumbo insists that his termination caused him to see a psychiatrist who

prescribed Ambien, which in turn caused him to assault his daughter. We need not

decide, however, whether such a string of events could ever be the direct result of a

termination because Zisumbo admits he began seeing a psychiatrist and taking

Ambien before ORMC terminated his employment. Even assuming his Ambien use

                                               32
ultimately caused the assault, neither the assault nor the Ambien use were

“occasioned by” or the “direct result” of the termination.

      Viewing the record as a whole, we conclude the district court did not abuse its

discretion in concluding that ORMC would have terminated Zisumbo for his

misdemeanor conviction. Nor did the district court abuse its discretion in finding that

Zisumbo’s misdemeanor assault conviction did not directly result from his

termination. We therefore affirm the district court’s decision limiting Zisumbo’s back

pay to the period between his termination and his assault conviction.

      C.       Back Pay Calculation

      Finally, Zisumbo argues the district court abused its discretion in calculating

his back pay award. Zisumbo asked the district court to calculate his weekly wages

based on his W-2, and then multiply that by the number of weeks of back pay. But

the district court declined to do so based on testimony that Zisumbo’s W-2 might

have reflected a payout of all paid time off accrued by Zisumbo at the time of his

termination. Instead, the district court based Zisumbo’s back pay award on his hourly

wage and ORMC’s detailed calculations. We conclude the district court did not abuse

its discretion by calculating Zisumbo’s back pay based on his actual hourly rate.1

VI.       The district court did not abuse its discretion in limiting Zisumbo’s
          attorneys’ fees based on his limited success.




      1
         Because we affirm the district court’s limitation of Zisumbo’s back pay based on
his post-termination conduct, we need not reach ORMC’s argument that Zisumbo failed
to mitigate his damages.
                                               33
      Under 42 U.S.C. § 2000e-5(k), a district court may award reasonable

attorneys’ fees to the prevailing party in a Title VII case. It may also reduce a

prevailing party’s award based on redundant, excessive, or improperly billed hours,

or based on the attorneys’ limited success in the case. Hensley v. Eckerhart, 461 U.S.

424, 434 (1983). In determining whether a fee award is reasonable, courts must

consider both whether the plaintiff’s successful and unsuccessful claims were related

and whether the plaintiff’s overall level of success justifies a fee award based on the

hours expended by plaintiff's counsel. Flitton v. Primary Residential Mortg., Inc.,

614 F.3d 1173, 1177 (10th Cir. 2010). “Because the district court ‘is in a better

position than an appellate court to determine the amount of effort expended and the

value of the attorney’s services,’ we review an attorney’s fee award for abuse of

discretion.” Flitton, Inc., 614 F.3d at 1176 (quoting Starrett v. Wadley, 876 F.2d 808,

825 (10th Cir. 1989)).

      The parties agreed that the lodestar—the total number of hours reasonably

expended multiplied by a reasonable hourly rate—equaled $162,228.50. Robinson v.

City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The only question on appeal

is whether the district court abused its discretion in reducing the lodestar based on

Zisumbo’s lack of success on certain claims. Specifically, the district court reduced

the lodestar by three discrete amounts: (1) $2,750 expended on Zisumbo’s

unsuccessful motion to stay the proceedings while he pursued his first appeal in this

case; (2) $4,125 spent on Zisumbo’s unsuccessful motion to reconsider the district

court’s grant of summary judgment on his good faith and fair dealing claim; and (3)

                                              34
40% of the requested lodestar (or $64,891.40) based on Zisumbo’s lack of success on

his discrimination and good faith and fair dealing claims.

      The district court denied attorneys’ fees for the motion to stay because the

motion was unsuccessful and unrelated to Zisumbo’s retaliation claim. Zisumbo filed

the motion for stay to buy time while he appealed to this court from the dismissal of

his second lawsuit, which alleged § 1981 and state-law claims that the district court

refused to permit him to add to his complaint in this case. We characterized

Zisumbo’s attempt to bring the new claims in a second suit as an “evasive claims-

splitting maneuver” and noted it was not the “equitable and legally prescribed route

for seeking to” add claims to this suit. Zisumbo v. Ogden Reg’l Med. Ctr., 536 F.

App’x 832, 833 (10th Cir. 2013) (unpublished). Under these circumstances, we hold

the district court did not abuse its discretion in denying Zisumbo attorneys’ fees

related to his motion to stay the district court proceedings while he pursued this

litigation maneuver.

      Nor did the district court abuse its discretion by denying attorneys’ fees for

Zisumbo’s motion to reconsider in which Zisumbo simply restated arguments the

district court had already rejected on summary judgment. The motion was redundant

and an inappropriate method of seeking relief from the district court’s order. See

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

      Finally, the district court reduced the lodestar amount by 40% because

Zisumbo succeeded only on his retaliation claim. His discrimination claim, including

at least four separate race-discrimination theories, and his good faith and fair dealing

                                              35
claims all failed. The district court also considered the time and money spent

litigating Zisumbo’s two untimely motions for leave to amend his complaint.

      District courts possess broad discretion in setting an attorneys’ fee award.

Flitton, 614 F.3d at 1176. While “[t]here is no precise rule or formula for making

these determinations,” Hensley, 461 U.S. at 436, “‘[t]he record ought to assure us that

the district court did not “eyeball” the fee request and cut it down by an arbitrary

percentage,’” Robinson, 160 F.3d at 1281 (quoting People Who Care v. Rockford Bd.

of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996)). See also Hensley,

461 U.S. at 436-37, 440 (noting that a district court “may simply reduce the award to

account for the limited success” but must provide concise and clear explanation of its

reasons for fee award; emphasizing reduced fee award is appropriate if relief is

limited in comparison to the scope of the litigation as a whole).

      Here, the district court’s reasons for reducing Zisumbo’s attorneys’ fee award

by 40%—Zisumbo’s limited success overall and the generally haphazard manner in

which his counsel litigated this case—were both appropriate and supported by the

record. We find no abuse of discretion in the district court’s attorneys’ fee award.

                                     CONCLUSION

      For the reasons stated above, we affirm.




                                              36
