531 F.3d 1210 (10th Cir. 2008), 07-2105, Orr v. City of Albuquerque

Docket Nº:07-2105.
Citation:531 F.3d 1210
Party Name:Cynthia ORR; Patricia Paiz, Plaintiffs-Appellants, and Stephen Orr, Plaintiff, v. The CITY OF ALBUQUERQUE; Mary Beth Vigil, Defendants-Appellees.
Case Date:July 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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531 F.3d 1210 (10th Cir. 2008)

Cynthia ORR; Patricia Paiz, Plaintiffs-Appellants,

and Stephen Orr, Plaintiff,


The CITY OF ALBUQUERQUE; Mary Beth Vigil, Defendants-Appellees.

No. 07-2105.

United States Court of Appeals, Tenth Circuit.

July 8, 2008

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[Copyrighted Material Omitted]

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Paul J. Kennedy (Mary Y.C. Han , Charlotte L. Itoh, and Grieta A. Gilchrist with him on the briefs) of Kennedy & Han, P.C., Albuquerque, New Mexico, for Plaintiffs-Appellants.

Paula I. Forney , Assistant City Attorney (Robert M. White , City Attorney, with her on the brief), Albuquerque, New Mexico, for Defendants-Appellees.

Before LUCERO , HARTZ , and GORSUCH , Circuit Judges.

GORSUCH , Circuit Judge.

Albuquerque police officers Cynthia Orr and Patricia Paiz contend that the City of Albuquerque and Mary Beth Vigil, the Personnel Director for the Albuquerque Police Department, discriminated against them on the basis of pregnancy, in violation of the Pregnancy Discrimination Act of Title VII. Specifically, Officers Orr and Paiz allege that, when they took maternity leave, the defendants required them to do so in a manner that adversely affected their eligibility for early retirement, limited their ability to work overtime, and differed dramatically from how employees seeking time off for other medical purposes were treated. Defendants respond that they were merely applying a uniform policy applicable to all employees. The district court agreed with defendants and granted summary judgment in their favor. After a thorough review of the record in this case, we find the evidence sufficient that a reasonable jury could find defendants' explanation pretextual and infer discriminatory animus on the basis of pregnancy. Accordingly, we reverse and remand this matter for trial.


Plaintiffs Cynthia Orr and Patricia Paiz, veteran Albuquerque police officers, sought time off for the births of their children in 2000, a right Congress has guaranteed them through the Family and

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Medical Leave Act (“FMLA" ). Under the FMLA's terms, covered employees are entitled “to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition," 29 U.S.C. § 2601(b)(2) , and affected employers may not interfere with or discriminate against an employee seeking to exercise those rights, id. § 2615(a).

Plaintiffs allege that, after their pregnancy-related leave was approved by their supervisors, Ms. Vigil intervened to instruct them that they would have to exhaust their accrued sick leave before tapping into vacation time, and that in no event could they utilize their accrued compensatory time (paid time off awarded for overtime work and in lieu of a cash payment). Officers Orr and Paiz contend that others seeking time off for reasons unrelated to pregnancy but still protected by the FMLA-ranging from kidney dialysis to caring for a sick family member-were routinely allowed to use compensatory and vacation time before dipping into sick leave. And, plaintiffs submit, this differential treatment is no small thing for two reasons. First, under Albuquerque Police Department (“APD" or the “Department" ) policy, sick days, unlike vacation or compensatory time, can be saved over the years and used to help secure an early retirement. Second, and conversely, because the amounts of vacation and compensatory time are capped, one must use or lose them. Only a limited amount of unused vacation time, for example, can be carried over from year-to-year, with the remainder having to be “cashed out" at the end of each year. With respect to compensatory time, APD had a policy in effect during the relevant period requiring officers with more than 250 hours of compensatory time, a group that included both Officers Orr and Paiz, to use that time before being allowed to work additional overtime. By prohibiting their use of compensatory time, defendants effectively prohibited plaintiffs from working overtime (and earning overtime pay) when they returned to work.

Ms. Vigil and the City do not contest that they required pregnant women seeking maternity leave to use sick leave first, or that they prohibited them from using compensatory leave. Neither do defendants seriously purport to defend their practices as consistent with the FMLA.1 Indeed, after plaintiffs initiated proceedings before the Equal Employment Opportunity Commission in November 2000, the City of Albuquerque entered into an agreement with the Albuquerque Police Officer's Association (“APOA" ), in June 2001, to allow women seeking maternity leave (and all others taking leave for FMLA-qualifying purposes) to use compensatory time and do away with the requirement that they use sick days before other kinds of leave. For reasons that are not entirely clear from the record, however, plaintiffs do not bring their suit under the FMLA, but instead proceed under the Pregnancy Discrimination Act (“PDA" ), a component of Title VII that prohibits intentional discrimination in the workplace on the basis of pregnancy. See 42 U.S.C. § 2000e(k) .2 Ms. Vigil and the City defend

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this suit on the basis that, whatever the propriety of their practices under the FMLA, their actions were not the product of intentional discrimination on the basis of pregnancy in violation of Title VII.

As it happens, this is the second time the case is before us on appeal. In response to an initial motion by defendants for summary judgment, the district court applied the McDonnell Douglas burden shifting rubric to plaintiffs' Title VII claims and dismissed them for failure to establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) . We reversed, explaining that defendants' primary defense-that they neutrally applied a standard policy to all employees-was relevant to later aspects of the McDonnell Douglas framework and that, on the limited question whether a prima facie case existed, plaintiffs had cleared that hurdle by coming forward with sufficient facts to show that defendants had treated “at least one non-pregnant employee ... more favorably than them." Orr v. City of Albuquerque, 417 F.3d 1144, 1152 (10th Cir.2005) (“ Orr I " ) (internal quotation and brackets omitted). We remanded the case, leaving open the possibility of future summary judgment proceedings on the remaining McDonnell Douglas questions whether defendants had come forward with evidence suggesting that they had indeed enforced a neutral policy with all employees, and whether plaintiffs might succeed in showing such a proffered neutral business explanation to be pretext for intentional discrimination. Id. On remand, the district court took up those very questions and eventually granted summary judgment for defendants once again. Plaintiffs now appeal this second summary judgment, asking us to reverse and send the matter to trial.



In our court, PDA claims proceed in much the same manner as other Title VII claims of disparate treatment. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 947 (10th Cir.1992) ; EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir.2000) . Because the plaintiffs in this case sought to prove intentional discrimination by means of “indirect" proof, we are obliged to analyze their claims, prior to trial, under the well worn McDonnell Douglas burden-shifting framework. See Orr I, 417 F.3d at 1149 .

Pursuant to McDonnell Douglas 's terms, after we determined in Orr I that plaintiffs had established a prima facie case-showing differential treatment between employees who were and were not pregnant-the burden shifted to defendants to articulate a legitimate, non-discriminatory reason for the adverse employment action suffered by Officers Orr and Paiz. See id. In this appeal, we do not understand plaintiffs to dispute that the City and Ms. Vigil have proffered evidence supporting two such non-discriminatory explanations for their conduct. Accordingly, this appeal focuses on the final

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McDonnell Douglas question-namely, whether plaintiffs have adduced evidence from which a reasonable jury could conclude that the defendants' proffered non-discriminatory reasons for their actions are pretext for intentional discrimination on the basis of pregnancy. See Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 & n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; Swackhammer v. Sprint/United Management Co., 493 F.3d 1160, 1163 (10th Cir.2007) (Plaintiffs must come forward with “evidence of differential treatment sufficient to permit an inference that the true explanation ... was intentional discrimination." ); Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir.2005) (“[T]he factfinder must be able to conclude, based on a preponderance of the evidence, that discrimination was a determinative factor in the employer's actions-simply disbelieving the employer is insufficient." ); see also Martin J. Katz, Reclaiming McDonnell Douglas, 83 Notre Dame L.Rev. 109, 130-31 (2007) (discussing the chain of inferences under McDonnell Douglas at the pretext stage, “from error, to lie, to cover-up, to discrimination" ).

In assessing this question, we approach it de novo, viewing the facts (and all reasonable inferences the facts entail) in the light most favorable to plaintiffs as the summary judgment respondents. We are also cognizant that plaintiffs are not limited in their proof on this score; pretext can be shown in any number of ways, “including but not limited to differential treatment of similarly situated employees and procedural irregularities." Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir.2008) . Neither, of course, do we look at each piece of evidence in isolation; rather, in assessing whether plaintiffs have shown pretext, we are obliged to...

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