Archuleta v. Colorado Dept. of Institutions, Div. of Youth Services

• Decision Date: 20 June 1991
• Docket Number: No. 89-1370,89-1370
• Citation: 936 F.2d 483
• Parties: 56 Fair Empl.Prac.Cas. 317, 56 Empl. Prac. Dec. P 40,852 Carmen ARCHULETA, Plaintiff-Appellant, v. The COLORADO DEPARTMENT OF INSTITUTIONS, DIVISION OF YOUTH SERVICES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 483

936 F.2d 483

56 Fair Empl.Prac.Cas. 317,

56 Empl. Prac. Dec. P 40,852

Carmen ARCHULETA, Plaintiff-Appellant, v. The COLORADO DEPARTMENT OF INSTITUTIONS, DIVISION OF YOUTH

SERVICES, et al., Defendants-Appellees.

No. 89-1370.

United States Court of Appeals, Tenth Circuit.

June 20, 1991.

Richard C. LaFond and Jay Khandke, Denver, Colo., for plaintiff-appellant.

Carolyn Lievers, Deputy Atty. Gen., Human Resources Section (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., and Richard H. Forman, Sol. Gen., with her on the brief), Denver, Colo., for defendants-appellees.

Before HOLLOWAY, Chief Judge, and BARRETT, Circuit Judge, and BROWN, ^* District Judge.

WESLEY E. BROWN, District Judge.

Plaintiff-appellant Carmen Archuleta was terminated from her job with the Colorado Department of Youth Services. She filed suit in the district court against her former employer and supervisors. Plaintiff asserted various claims, including a claim that the defendants retaliated against her for filing a prior sex discrimination complaint (42 U.S.C. Sec. 2000e-3), a claim for sexual harassment amounting to a constructive discharge (42 U.S.C. Sec. 2000e-2), as well as claims for deprivation of the right to procedural and substantive due process (42 U.S.C. Sec. 1983). The district court dismissed the claim under Sec. 2000e-2 because the plaintiff had not submitted it first to the EEOC. The court also granted the defendants' motion to dismiss the Sec. 1983 claims. The claim for retaliation was tried to the court. After hearing all of the evidence, the court held that the plaintiff had failed to show that the defendants retaliated against her because of the prior sex discrimination complaint. Plaintiff appeals the district court's entry of judgment on these claims in favor of the defendants. We affirm.

Plaintiff began working as a Youth Service Worker in June of 1974. She consistently received standard or above standard job performance evaluations from her supervisors, defendants Grant and Davis. In February of 1979, plaintiff received her first below standard evaluation. In subsequent months she received two more substandard evaluations, and, after a hearing with her appointing authority, the department terminated her employment. Plaintiff appealed her termination to the Colorado State Personnel Board. In that proceeding, she alleged that she had been terminated without cause and had been discriminated against on account of her sex. A hearing officer determined that the department had dismissed the plaintiff without cause. The hearing officer found that the defendant Davis had acted with maliciousness and bad faith toward the plaintiff in giving her unjustifiably low performance evaluations. Addendum to App. Brief at 11. The hearing officer also found that plaintiff's claim of sex discrimination was not supported by the evidence. Id. at 8-11. The officer ordered the department to reinstate the plaintiff and suggested that she be placed with a different supervisor. Id. at 12.

Plaintiff was reinstated in October of 1980. She was given a new supervisor and was assigned to a juvenile detention unit for boys. Plaintiff alleged that numerous instances of sexual harassment occurred at this center. ¹ After numerous requests, she was transferred to Lookout Mountain, a facility for female juveniles. Plaintiff was diagnosed as being pregnant in March 1985. She took maternity leave in July of 1985 and returned to work on January 27, 1986. The parties' accounts of the plaintiff's return to work after her maternity leave differ in several respects. The plaintiff contends that she found out after working on January 27th that she was supposed to work a double shift the next day. When plaintiff went home on January 28th, however, she found that her baby was sick. Plaintiff called her supervisor to tell him that she could not work the shift that evening because her baby was sick and also because her doctor had given her a note stating that she should not be working double shifts. Plaintiff contends that the supervisor accused her of faking the note and then told her to bring the baby to work if there was no other alternative. The defendants, on the other hand, contend that plaintiff was given her work schedule on January 13, two weeks before she returned to work. On January 28, plaintiff requested a schedule change and was told by her supervisor that the request would be considered for the next scheduling period. Shortly before plaintiff's January 29 shift was to start, she called her supervisor at his home and told him she could not come to work because she did not have a babysitter. The defendants contend there was no mention of the child being sick. The plaintiff's supervisor was forced to fill in for her. The defendants assert that the supervisor, a male, had to violate department policy by working the late shift at a facility for female juveniles. The supervisor tried several times during the shift to contact the plaintiff, but was told that she was unavailable. A man identifying himself as the plaintiff's attorney called the supervisor during the shift and argued with him about the plaintiff's schedule. The plaintiff subsequently called the supervisor and told him that she was on medical leave. Plaintiff did not report to work on January 29 or on February 1, which was her next scheduled shift. The facility director then sent plaintiff a letter of termination for not reporting to work as scheduled.

I. Retaliation--42 U.S.C. Sec. 2000e-3.

The first issue raised by appellant is whether the district court erred in ruling against her on the claim for retaliation under 42 U.S.C. Sec. 2000e-3. That section makes it unlawful for an employer to discriminate against an employee because of the employee's opposition to an employment practice made unlawful under Title VII or because of the employee's participation in an investigation, proceeding or hearing under Title VII. In order to establish a prima facie claim for retaliation, a plaintiff must show: 1) she engaged in protected opposition to discrimination or participation in a proceeding arising out of discrimination; 2) adverse action by the employer subsequent to the protected activity; and 3) a causal connection between the employee's activity and the adverse action. Allen v. Denver School Board, 928 F.2d 978 (10th Cir.1991). In this case, the plaintiff alleged that she engaged in protected activity by filing the sex discrimination complaint with the Colorado State Personnel Board after her termination in 1979. Plaintiff alleged that this activity prompted various employees of the Department to harass her after she was reinstated. Plaintiff further contended that her ensuing termination in 1986 was caused by this allegation of sexual discrimination in the 1980 complaint.

The plaintiff presented evidence of problems that occurred after her reinstatement in 1980. Based on this evidence, the district court determined that the plaintiff had made out a prima facie case of retaliation. The court was particularly concerned by the fact that plaintiff was assigned to a facility for male juveniles after she was reinstated. The defendants responded by producing evidence of the circumstances surrounding the alleged incidents of harassment and plaintiff's discharge and by asserting that plaintiff was dismissed for legitimate reasons. The plaintiff contended that these asserted reasons were a pretext for discrimination. After hearing all of the evidence, the court concluded that the plaintiff had not been retaliated against for filing a sex discrimination complaint. Although the court did not specifically determine whether the 1986 termination was justified, the court found that the termination was not caused by the prior sex discrimination charge. Tr. IV at 131. The court indicated that some of the plaintiff's problems with the agency may have been caused by the hearing officer's findings that plaintiff had been unjustly fired in 1979 and that defendant Davis had acted maliciously in giving her low evaluations. The district court noted that some people in the agency did not agree with these findings. The court reiterated, however, that the prior sex discrimination complaint played no part in the plaintiff's subsequent problems with the department. Id. at 134-45.

Appellant contends that the district court erred because it ruled that by losing the sex discrimination claim in 1980, plaintiff was barred as a matter of law from showing retaliation. This argument misconstrues the district court's findings. After discussing the difficulties inherent in determining what motivates any conduct, the court concluded that the defendants did not retaliate for the claim of discrimination, stating: "But I am satisfied that it was not the sex discrimination charge which, after all, the hearing officer absolved the agency of, but it was the finding of malice and animus that was, at least for some of the persons acting on behalf of the agency, was somewhat influential." Tr. IV at 131. In response to an objection from plaintiff's counsel that the motivations of the agency could not be separated in this manner, the court explained that it was simply "contrary to logic ..., contrary to common sense ..., [and] contrary to human nature" to believe that the defendants retaliated after being absolved on the sex discrimination complaint. Id.

Clearly, a plaintiff need not be successful on an original charge of discrimination in order to have a valid claim of retaliation. See Romero v. Union Pacific Railroad, 615 F.2d 1303, 1307 (10th Cir.1980). There is no indication in the record, however, that the district court ruled that losing the sex discrimination complaint barred the plaintiff as a matter of law from showing retaliation. Rather, the court found that plaintiff failed to show as a factual matter that the adverse actions were taken because of the prior discrimination complaint. The determination...