Bird v. W. Valley City

Decision Date08 August 2016
Docket NumberNo. 15-4024,15-4024
Citation832 F.3d 1188
Parties Karen Bird, Plaintiff-Appellant, v. West Valley City, a political subdivision of the State of Utah; Kelly Davis, in his official and individual capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

April L. Hollingsworth, Hollingsworth Law Office, Salt Lake City, Utah (Ashley F. Leonard, with her on the briefs), Hollingsworth Law Office, LLC, Salt Lake City, Utah, for Plaintiff-Appellant.

Stanley J. Preston (Bryan M. Scott, and Brandon T. Crowther, with him on the brief), Preston & Scott, Salt Lake City, Utah, for Defendant-Appellee.

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

BALDOCK, Circuit Judge.

In 2011, city officials of West Valley City, Utah, terminated Plaintiff Karen Bird from her position as manager of the city's Animal Shelter. She now brings various claims under Title VII, 42 U.S.C. § 1983, and Utah contract law against West Valley City and Kelly Davis, her immediate supervisor at the Animal Shelter. According to Plaintiff, both her termination and Mr. Davis's behavior during her time at the Animal Shelter were unlawful. The district court, with a magistrate judge presiding by consent of the parties, granted summary judgment to Defendants on all counts. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part for the following reasons.


The following facts are either undisputed or taken in the light most favorable to Plaintiff. Plaintiff gained employment with Defendant West Valley City at its Animal Shelter in 2001 and worked there until city officials fired her in November 2011. Defendant Kelly Davis, the Director of Operations for West Valley City's Animal Services Division, promoted Plaintiff to manager of the Animal Shelter the year after she began working for the city. Mr. Davis directly supervised Plaintiff during her entire duration at the Animal Shelter.

During the latter half of Plaintiff's employment, the environment of the Animal Shelter was toxic. For a variety of reasons not relevant to this appeal, many different employees habitually provoked needless arguments, engaged in vicious confrontations, and hurled passive-aggressive remarks toward one another. The Animal Shelter, in other words, effectively functioned as a real-life soap opera. For this very reason, employees constantly complained to the West Valley City Human Resources Department about one another, and employee turnover at the Animal Shelter was quite common.

Plaintiff was one of the biggest contributors to this tumultuous environment. For instance, Shirlayne George, who worked for West Valley City for nearly two decades as its Human Resources Manager, investigated the Animal Shelter in 2005 and quoted employees as making the following comments about Plaintiff:

We are all afraid to express an opinion or complain about something or make suggestions because if Karen does not like it we all pay. We just quit bringing issues up to keep peace.”
[Karen] is degrading in her talk.”
“Nobody dares complain about anything. If Karen is in a bad mood we all pay.”
“I have seen Karen stomp her feet and clench her fist[s] when she gets mad to the point that her face gets all red. Like a 10 year old.”
“Everyone is scared of her. When she is in a bad mood you want to run and hide.”

George Notes from 2005 Investigation of Animal Shelter 3–4.1

But Plaintiff was not the only culprit. Employees also frequently complained about Mr. Davis. Many of these employees, including Plaintiff, were female. Ms. George, for example, investigated Mr. Davis in October 2009. According to her investigation notes, female employees made the following comments about Mr. Davis:

• Mr. Davis was “always yelling, bullying, and slamming,” led one meeting that “was so bad, all but [two] people left crying,” and “has told the girls they think too much, they worry about their feelings too much.”
• Mr. Davis “often slam[med] his fists on the chair or table” and “recognize[d] the guys but not the girls.”
• Mr. Davis got so angry with one employee that he “stood up and got in her face” and came “so close [to her that] she thought he might hit her.” She was so traumatized by the experience that she is “having nightmares and is seeing a therapist who has recommended that she see a crisis counselor.”
Plaintiff herself stated that Mr. Davis “is a 100% bully in the way he treats others,” “treats women different than men because women complain more,” and “thinks that some of the men don't work as hard but never get in trouble for it.”

George Notes from 2009 Investigation of Davis 1–3, 5.

All in all, at least nine women (including Plaintiff) complained to West Valley City about how Mr. Davis had treated them during their time at the Animal Shelter. Plaintiff testified during her deposition that many of these employees had told her at one point or another that Mr. Davis “just treats them awful,” “belittles them,” and “is demeaning.” Bird Dep. 217:18–19. Further, most of the women who complained about Mr. Davis either were fired from their positions at the Animal Shelter after they complained about Mr. Davis or voluntarily left to avoid further mistreatment.

Ms. George herself was not exempt from Mr. Davis's treatment. She had her own difficulties with him and testified that she did not like him or his management style. She further noted that she had a tough time communicating and working with him because “it was hard for him, because of his personality, to take counsel from a woman.” George Dep. 61:17–18. And as a result of the 2009 investigation into Mr. Davis, Ms. George concluded that Mr. Davis had a “serious anger management issue” that “interfer[ed] with his ability to be an effective manager.” George Notes from 2009 Investigation of Davis at 7. Neither Ms. George nor any other West Valley City official, however, formally disciplined Mr. Davis for any of his conduct. The only remedial measure taken was that Layne Morris, the Community Preservation Department Director and Mr. Davis's direct supervisor, frequently counseled Mr. Davis about how to be a more effective manager.

But Ms. George also stated that she “watched how things were working at the shelter” and felt that a lot of the complaining was “just backbiting.” George Dep. 35:17–18. She also believed that “it might have been harder for the women to understand [Mr. Davis's] management style” since he formerly had been a police officer, presumably implying that he was accustomed to working in a more gruff and aggressive environment. Id. at 45:3–4. In any case, she testified that “probably almost every employee of the shelter” had complained to her about Mr. Davis, and [t]he complaints were the same across the board for men and women.” Id. at 27:22–23, 56:21–22.

As if Plaintiff's and Mr. Davis's managerial styles were not bad enough on their own, they came to hate each other after they had a disagreement in 2009. The resulting power struggle between the two heavily affected employee morale—one employee even referred to their relationship as “the little war.” George Typed Notes from 2011 Investigation of Animal Shelter 1–2. And over the next two years their mutual animosity crescendoed to such a point that Mr. Morris testified Plaintiff “could not stand to be in the same room with [Mr. Davis],” “couldn't look him in the eye,” and “refused to answer his questions.” Morris Dep. 76:10–12.

Incidentally, in October 2011—during the high point of the feud between Plaintiff and Mr. Davis—the Salt Lake Tribune published an article about a cat that had survived two euthanization attempts in the Animal Shelter's gas chamber. The backlash was immediate: upset citizens flooded the Animal Shelter with complaints about the way it handled and treated animals. A little over a week after this article appeared, the Animal Shelter received news that further negative press was on the way. A reporter called a West Valley City official and informed the official that he (the reporter) had received an anonymous telephone call alleging that Mr. Davis was ordering a mass execution of animals due to overpopulation. Both Mr. Davis and Mr. Morris were under the impression that Plaintiff, who was notoriously against using the gas chamber to euthanize animals and who was one of the few individuals privy to the meeting discussing the shelter's overpopulation, was the source of these leaks. Plaintiff, however, vehemently denied that she was the one who provided this information to the press.

Around the same time as the anonymous phone call to the press, Plaintiff finally decided she had enough. She emailed Ms. George and stated she could not “take anymore of Kelly's belittling, bullying[,] and harassing me.” Bird Email to George, Oct. 24, 2011. Shortly afterward on November 3, 2011, Plaintiff filed a formal complaint against Mr. Davis with the Human Resources Department of West Valley City.2 Although the complaint outlines various instances where Mr. Davis harassed and demeaned Plaintiff, she did not allege gender discrimination or otherwise suggest that her gender motivated Mr. Davis's abuse.

Less than a week after Plaintiff filed this formal complaint, Mr. Davis issued her two letters of reprimand, both of which concerned Plaintiff's unauthorized collection of overtime pay during the previous month. According to West Valley City's Policy and Procedures Handbook, letters of reprimand are formal disciplinary actions that are “placed in the employee's personnel file in the Human Resource Office.” Policy & Procedures Handbook § 9.3(C)(II). Plaintiff, however, had never before been formally disciplined in her decade-long career at the Animal Shelter. Further, Mr. Davis testified that he generally gave employees informal “correct deficiency forms” before resorting to the more formal letters of reprimand. Mr. Davis nonetheless issued the two letters of reprimand to Plaintiff without first giving her any correct deficiency forms.

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