Orr v. City of Albuquerque

• Decision Date: 02 August 2005
• Docket Number: No. 03-2287.,03-2287.
• Citation: 417 F.3d 1144
• Parties: Cynthia ORR; Stephen Orr; and Patricia Paiz, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE and Mary Beth Vigil, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

417 F.3d 1144

Cynthia ORR; Stephen Orr; and Patricia Paiz, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE and Mary Beth Vigil, Defendants-Appellees.

No. 03-2287.

United States Court of Appeals, Tenth Circuit.

August 2, 2005.

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Paul J. Kennedy (Mary Y.C. Han 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), City of Albuquerque, Albuquerque, New Mexico, for Defendants-Appellees.

Before EBEL, McKAY, and O'BRIEN, Circuit Judges.

McKAY, Circuit Judge.

This appeal involves three police officers who alleged separate but related causes of action against their employer, the Albuquerque Police Department ("APD"), because of APD's alleged mistreatment of Plaintiffs in conjunction with their requests for parental leave.

After eleven years with APD, Ms. Orr, pregnant with her first child, devised a way to maximize her work schedule to best accommodate the birth of her child. Ms. Orr wanted to take several months of parental leave after her child was born. To facilitate this leave, Ms. Orr planned to use a combination of accrued compensatory time¹ and vacation time in addition to working part-time. Absent from Ms. Orr's plan was the use of sick leave. This was intentional because, based on APD policies, it was more advantageous to continue to accrue sick leave. Accrued sick leave can be used toward early retirement while the other types of leave cannot. In addition, Ms. Orr's desire to use compensatory time was an effort to use the excess compensatory time she had accumulated; employees could not work additional overtime until they had decreased their accumulated compensatory time to below the cap.²

Ms. Orr received permission from a supervisor to institute her plan. After the birth of her child, Ms. Orr did not immediately return to work. On her time sheet, she reported the first three weeks of her time off as covered by compensatory time. During the fourth week, she began working part-time in conjunction with compensatory time.

Everything went according to Ms. Orr's plan until APD's Personnel Director Mary Beth Vigil learned of Ms. Orr's actions. At that time, Ms. Vigil put a quick stop to Ms. Orr's conduct. Ms. Orr was informed that, because of her pregnancy, she could not work part-time and could not use compensatory time for her parental leave. Ms. Vigil relied on an alleged APD policy which purportedly required that only sick leave could be used when leave is taken for any Family and Medical Leave Act ("FMLA") purpose, which includes parental leave. Ms. Vigil planned on changing Ms. Orr's personnel records to reflect the use of sick leave. Ms. Orr then attempted to use vacation time for her leave, but she was again stopped by Ms. Vigil because only sick leave could be used. Ultimately, Ms. Orr was forced to use sick leave and was not paid for the part-time work she performed during this period.

In June of 2002 Ms. Orr gave birth to a second child. Ms. Orr and her husband sought permission to use leave for a different FMLA purpose: Mr. Orr's leave was to care for the new baby while Ms. Orr needed leave to recover from her cesarian section. After requesting their leave, the Orrs were informed that they had to split a total of twelve weeks' leave between them. Ms. Orr was told that she could take a total of six weeks' leave. However, because her doctor would not clear her to return to work, she ended up taking eight weeks' leave.

After working ten years for APD, Ms. Paiz became pregnant. In connection with the birth of her daughter in July 2000, Ms. Paiz used compensatory time for her parental leave. However, when Ms. Vigil learned of Ms. Paiz's use of compensatory time, she informed Ms. Paiz that she was in violation of APD's policy and that her records were to be changed accordingly. Ms. Paiz, perceiving discrimination, sought direction from Deputy Chief Ruben Davalos. During this meeting, which Ms. Vigil attended, Deputy Chief Davalos admitted that he had once used compensatory time for FMLA purposes. In response to this admission, Ms. Vigil, strong in her adherence to the purported policy, attempted to change Deputy Chief Davalos's records to reflect the use of sick leave but was unable to do so. In the end, Ms. Vigil prevented Ms. Paiz from continuing her use of compensatory time and changed her personnel records to reflect that sick time had been used for her maternity leave. Ms. Paiz returned to work earlier than anticipated to avoid using too much of her accumulated sick leave.

As a consequence of the difficulties that arose in connection with Ms. Orr's and Ms. Paiz's parental leave, each filed complaints with the EEOC. Mr. Orr, Ms. Orr's husband and an officer with the APD since 1990, was named as a witness to the EEOC mediation because he was permitted to use two weeks of compensatory time following the birth of the Orr's first child.³ Ms. Vigil, who was present during the mediation, learned both that Mr. Orr had used compensatory time for FMLA purposes and that he was planning on testifying for Ms. Orr and Ms. Paiz. Armed with that information, Ms. Vigil attempted to change Mr. Orr's records to reflect the use of sick leave. However, Ms. Vigil learned from the Department of Wage Labor and Hour Division that those changes were untimely. Therefore, these changes could not be made.

As a result of Ms. Vigil's actions, Plaintiffs brought this civil rights lawsuit pursuant to 42 U.S.C. § 1983, Title VII, and the New Mexico Human Rights Act ("NMHRA"). After protracted litigation, the district court granted summary judgment in Defendants' favor. On appeal, we review the district court's grant of summary judgment de novo applying the same legal standards as employed by the district court. Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999).

The district court ruled on multiple issues, and Plaintiffs seek reversal on several of these rulings. On appeal, Ms. Orr and Ms. Paiz ("the female Plaintiffs") contend that the district court erroneously concluded that they could not make out a prima facie case of discrimination for their Title VII and NMHRA claims. They also claim that they properly raised a claim for violation of their due process rights that the district court failed to properly consider. The female Plaintiffs' final contention on appeal is that the district court erred in dismissing their municipal liability claim against the City of Albuquerque. Mr. Orr claims that the district court erred in dismissing his First Amendment claim.

The female Plaintiffs contend that the district court erred in granting Defendants' motion for summary judgment on their employment discrimination claims. The female Plaintiffs have carefully tailored the issues they present on appeal. They aver the district court erred because it narrowly categorized adverse employment action and concluded that the female Plaintiffs were not treated differently than others similarly situated.⁴

The female Plaintiffs brought claims pursuant to both Title VII and the NMHRA alleging employment discrimination.⁵ For Plaintiffs to prevail on either claim, they must establish intentional discrimination through either direct or indirect evidence. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir.2000) (citation omitted). If there is no direct evidence of discrimination, the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting framework is used to indirectly prove intentional discrimination. Id. Pursuant to the McDonnell Douglas approach, if a plaintiff can make out a prima facie case of discrimination, the burden shifts to the defendant to demonstrate a legitimate non-discriminatory reason for the adverse employment action. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000). If the defendant meets this burden, the burden shifts back to the plaintiff to demonstrate that the defendant's proffered reason is pretext. Id.

The district court's justification for granting summary judgment to Defendants and dismissing the female Plaintiffs' Title VII claims is because the female Plaintiffs could not make out a prima facie case of discrimination. Aplt.App., Vol. IV, at 963 (Dist.Ct.Op.). To make out a prima facie case of discrimination, the female Plaintiffs must demonstrate (1) membership in a protected class, (2) adverse employment action, and (3) disparate treatment among similarly situated employees. Trujillo v. Univ. of Colorado Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). The female Plaintiffs' burden in articulating a prima facie case is slight. "At the prima facie stage of the McDonnell Douglas analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons subsequently proffered by the defendant." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000) (emphasis added). At the prima facie stage, the plaintiff's burden is "not onerous," Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which is evidenced by the "small amount of proof necessary to create [an inference of discrimination]," EEOC v. Flasher Co. Inc., 986 F.2d 1312, 1318 (10th Cir.1992). The district court concluded that, although the female Plaintiffs were members of a protected class (pregnant women), they neither suffered adverse employment action nor were they treated differently than similarly situated employees. Aplt.App., Vol. IV, at 960, 962-63 (Dist Ct. Op.). The female Plaintiffs disagree.

In this appeal, we must decide whether Plaintiffs demonstrated, at a minimum, a genuine issue of material fact as to their prima facie claim of discrimination. In analyzing Plaintiffs' prima facie case, it is important not to...