Carney v. City and County of Denver

• Decision Date: 24 July 2008
• Docket Number: No. 06-1490.,06-1490.
• Citation: 534 F.3d 1269
• Parties: Melinda K. CARNEY, Plaintiff-Appellant, v. The CITY AND COUNTY OF DENVER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

534 F.3d 1269

Melinda K. CARNEY, Plaintiff-Appellant, v. The CITY AND COUNTY OF DENVER, Defendant-Appellee.

No. 06-1490.

United States Court of Appeals, Tenth Circuit.

July 24, 2008.

Gregory A. Eurich (Steven C. Choquette and Becky Bye with him on the briefs), Holland & Hart LLP, Denver, CO, for Plaintiff-Appellant.

Robert D. Nespor, Assistant City Attorney, Denver, CO, for Defendant-Appellee.

Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Melinda K. Carney ("Carney") appeals the district court's grant of summary judgment in favor of Defendant-Appellee the City and County of Denver ("the City"), in relation to her claims of racial discrimination and retaliation arising under 42 U.S.C. § 1981. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Ms. Carney is a black female. In 1991, she sought employment with the City as a police officer. Her application, however, was rejected. Ms. Carney responded to her rejection by filing a charge of discrimination with the Colorado Civil Rights Division ("CCRD"). For reasons that are not clear from the record, although the CCRD found probable cause to support Ms. Carney's claim of discrimination, Ms. Carney did not file suit against the City at that time. Instead, Ms. Carney opted to continue her pursuit of employment with the City as a police officer.

In 1996, Ms. Carney again applied to the City for a position as a police officer. This time, Ms. Carney successfully completed the required examination process, making her eligible for employment consideration. Her application was again unsuccessful, however, as the Manager of Safety determined that Ms. Carney failed to surmount the "Rule of III."

In response to this second rejection, on April 5, 1999, Ms. Carney filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Pursuant to this charge, Ms. Carney alleged she was discriminated against by the City because she is black. Thereafter, on February 18, 2000, Ms. Carney initiated a lawsuit against the City. This lawsuit was subsequently settled pursuant to an agreement whereby Ms. Carney would submit, under a modified hiring procedure, a third application to the City's police department.

Ms. Carney's third application was successful, and on January 6, 2003, Ms. Carney was appointed to the Denver Police Academy. Soon after her appointment to the police academy, however, Ms. Carney was greeted with more adversity. Indeed, on her very first day, Ms. Carney alleges that she was told by an instructor "that there was a general consensus among the Academy Staff that [she] did not belong" and that she "needed to be careful." Just six days later, on January 12, 2003, these words proved prophetic as Ms. Carney injured her Achilles tendon and was placed on limited duty with restrictions.

Ms. Carney's misfortunes did not end there. According to Ms. Carney, "[f]rom the date of [her] injury through [her] release to full duty on May 27, 2003, [she] was subjected to ... harassment perpetrated ... by Academy staff or with full knowledge, acquiescence and approval of Academy staff...." This harassment included physical abuse inflicted on her by fellow recruit Brian Lang, who during a training exercise allegedly "continued to forcibly twist [Ms. Carney's] wrist after [she] indicated that it was excruciatingly painful." In this same vein, during subsequent training exercises, Lang allegedly "struck [Ms. Carney] on the back of [her] hand with [a] gun" and "elbowed [her] across the mouth, causing [her] lip to split and bleed."

In addition to such physical misconduct, Ms. Carney alleges she also fell victim to nonphysical transgressions as well. For instance, Ms. Carney asserts that "she was subjected to discipline that was inconsistent with or in violation of applicable disciplinary procedures." Moreover, she alleges that she "was verbally abused and physically threatened by a supervisor." On top of these allegations, Ms. Carney claims that her "recruit badge" was taken away without cause and that "[c]hanges were made to the results of one or more of [her] driving tests, to cause [her] performance to appear worse than it actually was."

Life at the police academy did not improve for Ms. Carney when she was released from the physical restrictions imposed on her as a result of her Achilles tendon injury. Indeed, on the very day she was released from these restrictions, Ms. Carney participated in a training exercise known as the "Baton Ring of Death," where she was "continually struck ... in the face and on the back of the head," "knocked out of the ring onto [a] concrete floor," and then "deliberately and intentionally assaulted," by the aforementioned Brian Lang. This alleged misconduct— which Ms. Carney asserts violated a number of rules governing the Baton Ring of Death—resulted in Ms. Carney breaking her ankle. When she attempted to respond by filing an Internal Affairs complaint against Lang, Ms. Carney claims she was told "not to do so as it would jeopardize [her] career."

Following her ankle injury, things only continued to get worse for Ms. Carney. She alleges that she was subjected to further verbal abuse by her supervisors and moreover alleges that additional exam scores were unfavorably altered. The Rocky Mountain News evidently caught wind of Ms. Carney's struggles and on August 1, 2003, published an extensive article regarding her arduous path to becoming a Denver police officer. Subsequent to this article's publication, Ms. Carney asserts that she was subjected to further retaliatory and discriminatory treatment, including unwarranted transfers and assignments.

On May 27, 2004, Ms. Carney was forced to undergo extensive surgery on her previously broken ankle. According to Ms Carney, "[s]ubsequent to that surgery, Denver's worker's compensation unit ... repeatedly and seriously interfered with [her] receipt of medical treatment and [her] recovery." Specifically, Ms. Carney complains that she has fallen victim to unilateral cancellations of physical therapy sessions as well as unilateral rejections of physician-recommended procedures. Additionally, Ms. Carney asserts that the workers' compensation unit has pressured her surgeon to declare her to be at maximum medical improvement.

Ms. Carney's ankle injury has wrought significant hardship on her life and career. "A doctor [for the City] ... concluded that [she has become] permanently disabled ... and ... will never be able to run or jump in the manner expected of police officers." Perhaps with this in mind, the City "put [Ms. Carney] on terminal medical leave, expressing the intention to have [her] medically retired."

In response to this string of events, Ms. Carney filed suit against the City asserting claims of race discrimination and retaliation pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The City moved for summary judgment on Ms. Carney's section 1981 claims.¹ Agreeing with the City that Ms. Carney failed to produce evidence establishing a viable section 1981 claim of either race discrimination or retaliation, the district court granted summary judgment in the City's favor. In doing so, the court limited its analysis to whether the evidence produced by Ms. Carney was sufficient to give rise to municipal liability under section 1981. The court found Ms. Carney's evidence insufficient in this regard and concluded that this lack of evidence was fatal to her claims. Ms. Carney now appeals.

II. DISCUSSION

A. Standard of Review

"This court reviews the district court's summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party; in this case, in [Ms. Carney's] favor." Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir.2007). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

B. Racial Discrimination

"In racial discrimination suits, the elements of a plaintiff's case are the same whether that case is brought under §§ 1981 or 1983 or Title VII." Baca v. Sklar, 398 F.3d 1210, 1218 n. 3 (10th Cir. 2005) (quotation and alterations omitted). "To make out a prima facie case of discrimination, [Ms. Carney] must demonstrate (1) membership in a protected class, (2) adverse employment action, and (3) disparate treatment among similarly situated employees." Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005). Additionally, in order for municipal liability to arise under section 1981, Ms. Carney must demonstrate that the City's officials acted pursuant to a "custom or policy" of "discriminatory employment practices." Randle v. City of Aurora, 69 F.3d 441, 446 n. 6, 447 (10th Cir.1995) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)).²

The district court granted the City's Motion for Summary Judgment entirely on the basis that Ms. Carney could not demonstrate "that an official policy or custom was the moving force behind the alleged violation of her constitutional rights." We agree with the district court that this factor is dispositive, and therefore focus our analysis on this element of Ms. Carney's claim.

1. Policy or Custom

"An unconstitutional deprivation is caused by a municipal `policy' if it results from decisions of a duly constituted legislative body or an official whose acts may fairly be said to be those of the municipality itself." Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1177 (10th Cir.2003) (emphasis added). Ms. Carney has neither alleged nor produced any evidence suggesting that her purported discrimination was caused by any legislative action or by "an official whose acts may fairly be said to be those of the municipality itself." Accordingly, in...