Kelley v. City of Albuquerque

• Decision Date: 17 September 2008
• Docket Number: No. 05-2309.,No. 05-2317.,05-2309.,05-2317.
• Citation: 542 F.3d 802
• Parties: Judy K. KELLEY, Plaintiff-Appellee-Cross-Appellant, v. CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellant-Cross-Appellee, and Robert M. White; Martin J. Chavez, Defendants-Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

542 F.3d 802

Judy K. KELLEY, Plaintiff-Appellee-Cross-Appellant, v. CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellant-Cross-Appellee, and Robert M. White; Martin J. Chavez, Defendants-Cross-Appellees.

No. 05-2309.

No. 05-2317.

United States Court of Appeals, Tenth Circuit.

September 17, 2008.

Daniel J. Macke (Kevin M. Brown with him on the briefs), Brown & German, Albuquerque, NM, for Defendants-Appellants-Cross-Appellees.

Steven K. Sanders, Albuquerque, NM, for Plaintiff-Appellee-Cross-Appellant.

Before KELLY, McCONNELL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

The City of Albuquerque, Martin Chavez, and Robert White (collectively, the "City"), appeal a jury verdict finding that they retaliated against Plaintiff-Appellee Judy Kelley, formerly an Albuquerque assistant city attorney, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New Mexico Human Rights Act ("NMHRA"), N.M. STAT. ANN. § 28-1-1 et seq. Ms. Kelley alleged that she was terminated in retaliation for representing Albuquerque in Equal Employment Opportunity Commission ("EEOC") proceedings against a client represented by Mr. Chavez prior to his 2001 election as Albuquerque's mayor. Once Mr. Chavez became mayor, Ms. Kelley was immediately terminated. The City appeals the district court's: (1) denial of its motions for summary judgment and judgment as a matter of law; and (2) alleged failure to properly instruct the jury.

Ms. Kelley filed a cross-appeal challenging the district court's grant of summary judgment to the City on her class-of-one Equal Protection claim. The court reasoned that she failed to introduce evidence demonstrating that other "similarly situated" individuals were treated differently than she was.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Ms. Kelley became an Albuquerque assistant city attorney in May 1985. Although another assistant city attorney interviewed her and selected her for the position, both the chief administrative officer and the city attorney approved the hire. In January 1998, Ms. Kelley was promoted to the position of deputy city attorney. For several years preceding her termination, Ms. Kelley reported to the city attorney, Mr. White.

Mr. Chavez was first elected Albuquerque's mayor in 1993. Rather than seeking re-election following his first four-year term, Mr. Chavez ran for New Mexico's governorship and was defeated. After his defeat, Mr. Chavez practiced law privately until he was re-elected Albuquerque's mayor in 2001.

In 2000, Ms. Kelley represented the City in two EEOC mediation sessions in which Mr. Chavez participated as opposing counsel. Following the first session, Ms. Kelley recommended that a private investigator be hired to investigate Mr. Chavez's client's allegations of discrimination. The investigator was unable to verify the allegations. Ms. Kelley testified that when she informed Mr. Chavez of the unfavorable results of the investigation during the second mediation session, he became hostile and admonished: "Ms. Kelley, don't call my client [by his first name] Steve. He's a City employee. He deserves your respect. I'll not have you patronizing my client by calling him Steve." Aplt.App. at 350. Later in the same mediation, Ms. Kelley referred to Mr. Chavez by his first name. He responded by throwing his file on the table, demanding that Ms. Kelley address him as Mr. Chavez, and abruptly terminating the session. Ms. Kelley claimed that she was polite and conciliatory throughout the mediation, and she described the incident to Mr. White upon her return to the office.

At trial, Mr. Chavez related a different version of the same events. He testified that Ms. Kelley's tone throughout the second mediation was "demean[ing]" and infused with ethnic overtones to the point where he believed she was a "bigot." Aplt.App. at 781-82, 793. He felt Ms. Kelley had acted unprofessionally and unethically, although he did not report her to the state bar association or to her employer. Nor could Mr. Chavez identify the basis for his characterization of her behavior; he attributed his view to a "sixth sense." Id. at 784.

Ms. Kelley had no further contact with Mr. Chavez prior to his October 2001 election as mayor. In the summer of 2001, concerned that she would lose her job if Mr. Chavez was elected, Ms. Kelley requested a transfer to Albuquerque's human resources department to continue working in the Equal Employment Opportunity ("EEO") area. When she raised the idea of a transfer, Mr. White confirmed Ms. Kelley's fears stating, "if Marty is elected, you don't want to be here." Aplt. App. at 359. She received her transfer. Thus, before Mr. Chavez took office, Ms. Kelley and her staff moved out of the legal department and she began reporting to the human resources director. The chief administrative officer confirmed Ms. Kelley's transfer to the position of "assistant city attorney, EEO Office," prior to Mr. Chavez's assumption of office. Aplee. Supp. App. at 2.

Before taking office on December 1, 2001, the newly-elected Mr. Chavez began a review of city departments. A transition team studying the city attorney's office recommended a fifteen-to-twenty-percent reduction of attorneys, the elimination of the position of deputy city attorney, and the reorganization of the management structure. The transition report stated that "morale among the attorneys and the staff" was "quite good." Aplt.App. at 877. Mr. Chavez ultimately decided to request letters of resignation from all unclassified¹ positions in the City, including all assistant city attorneys. Ms. Kelley submitted her letter of resignation on November 7, 2001, but included a request that Mr. Chavez not accept it and offered reasons why she should stay on in the EEO Office.

On November 30, 2001, Mr. Chavez informed Mr. White that he was going to accept Ms. Kelley's resignation. Mr. Chavez did not seek Mr. White's opinion about Ms. Kelley's job performance. However, when a law firm asked Mr. White's opinion about her capabilities at about that same time, Mr. White gave a positive recommendation about her performance and demeanor. One week after his November 30, 2001, conversation with Mr. White, Mr. Chavez mentioned to Mr. White the second EEOC mediation that he had been involved in with Ms. Kelley.

Mr. Chavez accepted Ms. Kelley's resignation on December 3, 2001, effective January 1, 2002. He testified that he accepted the resignation because of a lack of productivity and low morale, as well as budgetary concerns. Approximately thirty-three assistant city attorneys worked for the City at the time of Ms. Kelley's termination. Although Mr. Chavez accepted approximately sixty percent of the requested letters of resignation, he accepted only two from employees paid from the city attorney's budget. Additionally, the City retained an assistant city attorney with an alcohol problem who had been involved in a sexual harassment claim.

As a result of her termination, Ms. Kelley filed a complaint against the City alleging race and sex discrimination, retaliation under Title VII and the NMHRA, and a violation of the Equal Protection Clause. Subsequently, the City filed a motion for summary judgment.

In a July 20, 2004, order ("Memorandum Order"), the district court granted the City judgment on some claims. In pertinent part, the district court held that Mr. Chavez and Mr. White were entitled to qualified immunity on Ms. Kelley's Equal Protection claim because she offered no evidence showing that she was treated differently from other employees who were similarly situated. Additionally, the district court allowed Ms. Kelley's Title VII and NMHRA retaliation claims to proceed, finding: (1) her participation as a defense lawyer on Albuquerque's behalf in the 2000 EEOC mediations constituted "protected activity" under § 2000e-3(a) of Title VII and § 28-1-7(I) of the NMHRA; (2) she raised a genuine issue of material fact as to whether she was an "employee" under § 2000e(f) of Title VII; and (3) even if she was not an "employee" by virtue of the "personal staff" exemption to Title VII, she was nonetheless an employee under the NMHRA, which lacks a "personal staff" exemption.

The district court further concluded that Ms. Kelley provided sufficient evidence to establish a prima facie case of retaliation, emphasizing that she had introduced evidence of a causal relationship between the adverse employment action and her protected activity (i.e., the 2000 EEOC mediations). Finally, the district court determined that Ms. Kelley had introduced sufficient evidence of pretext to rebut the City's legitimate nondiscriminatory reason for the termination — which, at the time, was that Ms. Kelley did not meet Mr. Chavez's criteria for effective legal counsel for either himself or Albuquerque.

The parties proceeded to trial. At the close of the evidence, the City moved for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50(a),² on four grounds: (1) Ms. Kelley was not an "employee" under Title VII because she was a member of the mayor's "personal staff"; (2) she did not participate in a "protected activity" under Title VII or the NMHRA; (3) she failed to introduce sufficient evidence of an adverse employment action under Title VII or the NMHRA; and (4) she failed as a matter of law to establish a prima facie case of retaliation because she introduced insufficient evidence of a causal connection between her protected activity and her termination under Title VII or the NMHRA.

The district court denied the City's motion. First, the district court concluded that, from the evidence submitted, no reasonable jury could find that Ms. Kelley was covered by the "personal staff" exemption to the definition of "employee" under Title VII. Second, the district court found that Ms. Kelley's participation in the 2000 EEOC mediations as a defense attorney...