McGowan v. City of Eufala
| Decision Date | 19 December 2006 |
| Docket Number | No. 04-7083.,04-7083. |
| Citation | 472 F.3d 736 |
| Parties | Jean McGOWAN, Plaintiff-Appellant, v. CITY OF EUFALA, a municipal corporation, Mayor Billy Ray Day, in his official and individual capacities, and Chad French, in his individual and official capacities, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
N. Kay Bridger-Riley, Bridger-Riley Bailey & Associates, P.C., Tulsa, Oklahoma for Plaintiff-Appellant.
Stephen C. Lewis, United States Attorney's Office, Tulsa, Oklahoma, for Defendants-Appellees.
Before McCONNELL, ANDERSON, and TYMKOVICH, Circuit Judges.
A prisoner at the Eufala, Oklahoma city jail committed suicide while under Appellant Jean McGowan's supervision as jailer. McGowan was later suspended for thirty days without pay after a three-month investigation by the City and the Oklahoma Bureau of Investigation concluded that she had failed to carry out her legal duty to conduct regular visual inspections of the prisoner, and that she falsified the written records of her inspections. McGowan claims in this Title VII suit that the City retaliated against her for supporting the race discrimination allegations of a co-worker. She appeals the district court's order of summary judgment on her Title VII retaliation claims against the City and several of its officials. Because we agree with the district court that her claims lack sufficient evidentiary support, we affirm.
The background facts are taken from the complaint and materials submitted in summary judgment proceedings.
Jean McGowan was employed by the City as a police dispatcher and jailer. Hired in 1983, her employment was uneventful until sometime in 1999 when then Chief of Police Randy Johnston approached McGowan and attempted to enlist her aid in an investigation of Officer Sherman Lollis. Lollis was a black police officer who had filed an EEOC discrimination claim against the City in March, 1999. McGowan refused to help Johnston in his investigation and in fact supported Lollis in the race discrimination lawsuit he eventually filed against the City. Lollis and the City settled that litigation in October 2001.
McGowan claims because of her support of Lollis, Johnston and other officers in the Eufaula Police Department retaliated against her. McGowan claims numerous instances of retaliation or harassment. We briefly summarize them and the City's response:
(1) After Lollis's complaint against the City, Chief Johnston began complaining about McGowan in front of and to other dispatchers. He asked that McGowan's mistakes in completing her time slips be reviewed by another dispatcher and brought to his attention. McGowan concedes, though, that Johnston's predecessor, Billy Ray Day, also had time slips reviewed by other dispatchers. Johnston claims he did not order the practice and had it discontinued when he became aware of it.
(2) McGowan claims her son, Ronnie McGowan, and his girlfriend, Linda Shepard, have also been the target of harassment by members of the department. Officer Chad French first issued a citation to McGowan for two unleashed dogs belonging to Ronnie McGowan and Shepard. A warrant was later issued for Ronnie McGowan and Shepard on charges relating to the citation. Johnston personally served Shepard with her warrant at McGowan's residence. Later, French allegedly tried to have McGowan's pickup truck impounded after he arrested Ronnie McGowan and Shepard for attempting to evade him as he sought to detain Shepard on an outstanding warrant for assault and battery. Chief Larry Osmond (who took over shortly after Johnston's resignation in 2002) intervened and ordered that the truck be returned.
(3) Next, McGowan claims that Officer Wesley Dawson trespassed on McGowan's property to take a picture of an unleashed dog on her property. The case was forwarded for criminal trespassing charges to the District Attorney, but charges were never filed.
(4) McGowan claims she was denied compensatory time for hours she missed after leaving work early one evening. Other department employees had similar complaints during Johnston's tenure as Chief. The acting Chief upon Johnston's departure, Lt. Charles Hammett, gave McGowan credit for all her claimed compensatory time.
(5) At a meeting of officers and dispatchers, Johnston allegedly looked at McGowan and said that he didn't want "the damn bill collectors" calling the department anymore. McGowan's creditors had, in fact, called the department. Vol. II at 173.
(6) McGowan was denied a requested assignment to the day shift and regular weekends off despite her seniority in the department. Johnston testified that McGowan was not assigned to the day shift because (a) counsel advised the City not to place her with Lollis until after his lawsuit was settled, and (b) because day shift dispatchers had to do more clerical work than those on other shifts and McGowan's clerical skills were not up to par. McGowan provided an affidavit by Johnston in which he states that day shift dispatchers do not actually need to have better clerical skills than dispatchers on other shifts, which contradicted an earlier affidavit by Johnston and his deposition testimony. Other dispatchers testified that they thought McGowan's clerical skills were poor and that she would not be able to be successful on the day shift. McGowan had previously unsuccessfully applied for the day shift during Day's tenure as chief, before Lollis filed his Title VII claim. Day denied this earlier application because he perceived that McGowan did not possess what he considered the requisite clerical and computer skills.
(7) While on duty, McGowan received a complaint from Shepard alleging that Officer French was following her. After McGowan recorded the call in the department's log book, French berated McGowan. She also alleges that French continued to make derisive comments about her work over the police radio.
In the end, Chief Osmond dismissed McGowan on September 13, 2003, one day after she gave deposition testimony in this case. The City claims McGowan's firing was the result of a three-month investigation into circumstances surrounding the suicide of a prisoner being held in the City's jail on June 14, 2003. In that incident, Officer Dawson arrested a man and delivered him to the City jail, failing to remove the prisoner's belt per department policy. McGowan was the jailer on duty that day. State law required McGowan perform a series of visual inspections of the prisoner and his cell to ensure his safety and well being. During the course of McGowan's shift, the prisoner hanged himself with his belt.
By reviewing videotape of the jail from the day in question, Osmond determined that McGowan did not perform the required inspections and, in fact, falsified a log book to make it appear as though she did. McGowan maintains that she performed the required checks and that the videotape of the day in question had been tampered with. Osmond suspended Dawson for his role in the prisoner suicide and terminated McGowan. Osmond claimed the difference in Dawson's and McGowan's punishment was justified by their relative culpability for the suicide and his belief that McGowan lied during the investigation. The firing was later overturned by the Eufaula City Council, and McGowan was instead given a thirty-day suspension and probation, the same punishment as Dawson.
We review a district court's decision granting summary judgment de novo. Summary judgment is appropriate only if the pleadings, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). We resolve all factual disputes and draw all reasonable inferences in favor of the non-moving party. To determine whether genuine issues of material fact exist for the jury, the court may "consider only the evidence that would be available to the jury." Id.
To establish a prima facie claim under Title VII for retaliation, a plaintiff must establish three elements: (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action. Argo, 452 F.3d at 1202.1 Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse action. If the employer does so, the burden shifts back to the plaintiff to show that the employer's reasons are pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1316 (10th Cir. 2006). If there is reason to believe the employer's reasons are pretextual, the case may be submitted to the jury.
The district court concluded that McGowan met the first element—her support of Lollis's discrimination claim was protected activity. But the court found that McGowan failed to establish the second and third elements of a prima facie case because (1) the refusal to grant the shift change or remedy work place harassment were not adverse actions; and (2) the City's reasons for suspending her were legitimate, and therefore, she could not show a causal connection between the allegations of retaliation and her suspension.
McGowan argues that the district court erred in not finding the denial of shift assignment adverse, as well as discounting the cumulative affect of her working environment. She also claims the City's reason for suspending her was pretextual.
We address each of these claims in turn.
McGowan maintains that the City retaliated in three ways to adversely affect her employment: (1) it...
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