433 F.3d 1294 (10th Cir. 2006), 04-6062, Maldonado v. City of Altus

Docket Nº:04-6062.
Citation:433 F.3d 1294
Party Name:Danny V. MALDONADO; Ruben D. Rios; Danny Alcorta; Henry O'Florian Martinez; Tommy R. Sanchez; Lloyd Lopez; Carlos Ramirez; Adrian B. Alonzo; Linda Mutchler; Frank Maldonado; Freddie Perez, Plaintiffs-Appellants, v. CITY OF ALTUS, Oklahoma, a municipal corporation; Michael Nettles, Administrator, in his individual and official capacities; Holmes Wil
Case Date:January 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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433 F.3d 1294 (10th Cir. 2006)

Danny V. MALDONADO; Ruben D. Rios; Danny Alcorta; Henry O'Florian Martinez; Tommy R. Sanchez; Lloyd Lopez; Carlos Ramirez; Adrian B. Alonzo; Linda Mutchler; Frank Maldonado; Freddie Perez, Plaintiffs-Appellants,

v.

CITY OF ALTUS, Oklahoma, a municipal corporation; Michael Nettles, Administrator, in his individual and official capacities; Holmes Willis, Street Commissioner, in his individual and official capacities, Defendants-Appellees,

American Civil Liberties Union of Oklahoma Foundation; Equal Employment Opportunity Commission, Amici-Curie.

No. 04-6062.

United States Court of Appeals, Tenth Circuit.

Jan. 11, 2006

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 03-CV-336-R)

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark E. Hammons (Tamara L. Gowens, with him on the brief) of Hammons &

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Associates, Oklahoma City, OK, for Plaintiffs-Appellants.

Margaret McMorrow-Love, Oklahoma City, OK (David W. Kirk of Lytle, Soule & Curlee, Oklahoma City, OK, with her on the brief), for Defendants-Appellees, City of Altus, OK, and Michael Nettles.

Ambre Camille Gooch (David W. Lee with her on the brief), of Comingdeer, Lee & Gooch, Oklahoma City, OK, for Defendant-Appellee, Holmes Willis.

Tina L. Izadi, American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, OK; Anne Noel Occhialinio (Eric S. Dreiband, General Counsel; Vincent J. Blackwood, Acting Associate General Counsel; Carolyn L. Wheeler, Assistant General Counsel, with her on the brief), Equal Employment Opportunity Commission, Washington, D.C., for Amici Curiae.

Before SEYMOUR and HARTZ, Circuit Judges, and BRACK, District Judge. [*]

HARTZ, Circuit Judge.

Plaintiffs are employees of the City of Altus, Oklahoma (City). They appeal the district court's grant of summary judgment dismissing all their claims against the City, the City Administrator, and the Street Commissioner (collectively referred to as Defendants). All claims arise out of the City's English-only policy for its employees. Asserting claims of both disparate-impact and disparate-treatment, Plaintiffs contend that the English-only policy discriminates against them on the basis of race and national origin in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000e. They also claim intentional discrimination under the Civil Rights Act of 1866, 42 U.S.C. § 1981. Finally, Plaintiffs bring claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, arguing that the policy deprives them of equal protection and freedom of speech. The Equal Employment Opportunity Commission (EEOC) and the American Civil Liberties Union of Oklahoma Foundation each filed amicus briefs in support of Plaintiffs. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand with respect to Plaintiffs' claims against the City alleging disparate impact and disparate treatment under Title VII; intentional discrimination under § 1981; and violation of equal protection under 42 U.S.C. § 1983. We affirm summary judgment for Defendants on all other claims.

I. BACKGROUND

A. Factual Background

Plaintiffs' claims stem from the City's promulgation of an English-only policy. Approximately 29 City employees are Hispanic, the only significant national-origin minority group affected by the policy. All Plaintiffs are Hispanic and bilingual, each speaking fluent English and Spanish.

In the spring of 2002 the City's Street Commissioner, Defendant Holmes Willis, received a complaint that because Street Department employees were speaking Spanish, other employees could not understand what was being said on the City radio. Willis informed the City's Human Resources Director, Candy Richardson, of the complaint, and she advised Willis that he could direct his employees to speak only English when using the radio for City business.

Plaintiffs claim that Willis instead told the Street Department employees that they could not speak Spanish at work at all and informed them that the City would

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soon implement an official English-only policy. On June 18, 2002, Plaintiff Tommy Sanchez wrote a letter to Ms. Richardson and the City Administrator, Defendant Michael Nettles, expressing concerns about the new Street Department English-only policy and the proposed citywide policy. Sanchez was particularly concerned that his subordinates, Plaintiffs Ruben Rios and Lloyd Lopez, had been told of a policy that he knew nothing about. Citing the City's Personnel Policies and Procedures Manual, the letter informed Nettles that employees had not been given proper notice if this was a new administrative policy and questioned whether Willis and the City had followed proper procedures in implementing the new policy. Sanchez reported that Willis had told him that the reason Hispanics speak Spanish "is because [of] . . . insecurities," Ex. H, R. Vol. II at 521, and that Willis had suggested that he (Sanchez) "would feel uncomfortable if another race would speak their native language in front of [him]," id. The letter requested that "the City of Altus understand that we Hispanics are proud of our heritage and do not feel that our ability to communicate in a bilingual manner is a hindrance or an embarrassment. There has never been a time that because I spoke Spanish to another Spanish speaking individual, I was unable to perform our job duties and requirements." Id. at 523. At the end of the letter Rios and Lopez signed a paragraph stating that "[t]he purpose of this correspondence is to serve as a discrimination complaint in accordance with the City of Altus Personnel Policies and Procedures Manual Section 102, in which we are requesting that an investigation be conducted into these charges and that a report be issue[d] within two weeks." Id. Another employee (Leticia Sanchez) also complained orally to Richardson about Willis's instructing employees not to speak Spanish in any circumstances during work hours.

In July 2002 the City promulgated the following official policy signed by Nettles:

To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity's limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, including

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a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.

Pls.' Ex. L., R. Vol. II at 560-61 (emphasis added).

Defendants state three primary reasons for adopting the policy:

1) workers and supervisors could not understand what was being said over the City's radios . . .; 2) non-Spanish speaking employees, both before and after the adoption of the Policy, informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand because they did not know if their co-workers were speaking about them; and 3) there were safety concerns with a non-common language being used around heavy equipment.

City/Nettles Br. at 42. Although the district court observed "that there was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy," Dist. Ct. Order at 6, R. Vol. III at 875, it noted that Willis had testified that at least one employee complained about the use of Spanish by his co-workers before implementation of the policy and other non-Spanish speaking employees subsequently made similar complaints. Those city officials who were deposed could recount no incidents of safety problems caused by the use of a language other than English, but the district court found that some Plaintiffs were aware "that employee safety was one reason for the adoption of the policy." Id. at 7. The court also stated that "it does not seem necessary that the City await an accident before acting." Id. at 18 n.20.

Defendants offered evidence that the restrictions in the written policy were actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish. But Plaintiffs offered evidence...

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