Ortiz v. Bank of Labor, 22-3127

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Carolyn B. McHugh, Circuit Judge
• Parties: MAIRA ORTIZ, Plaintiff - Appellant, v. BANK OF LABOR, Defendant-Appellee.
• Docket Number: 22-3127
• Decision Date: 23 May 2023

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MAIRA ORTIZ, Plaintiff - Appellant,
v.
BANK OF LABOR, Defendant-Appellee.

No. 22-3127

United States Court of Appeals, Tenth Circuit

May 23, 2023

(D.C. No. 2:21-CV-02316-JAR) (D. Kan.)

Before TYMKOVICH, BALDOCK, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT^[*]

Carolyn B. McHugh, Circuit Judge

Maira Ortiz appeals the district court's grant of summary judgment to the Bank of Labor on her employment discrimination claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

The following facts are undisputed.

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A. Restroom Access

Ortiz worked for the Bank at a small branch in Kansas City connected to a 7-Eleven. The 7-Eleven's restrooms were also the Bank branch employees' restrooms, but Ortiz did not like using those restrooms because the 7-Eleven did not clean them well. She preferred to use the restroom at a McDonald's just across the parking lot. The Bank expressed no concern with this until October 2019, when the branch supervisor, Charlotte Hayes, told Ortiz that the Bank requires two employees to be present in the branch whenever it is open.

This rule created a problem for Ortiz, for two reasons. First, she was pregnant at the time (which Hayes had known since the previous month). Her pregnancy resulted in a more-frequent urge to use the restroom. Second, Ortiz and another employee usually opened the branch at 7:15 AM, but a third employee often did not arrive until 9:45 or 10:00 AM. Thus, every morning she faced a stretch of more than two hours when she could not leave to use the McDonald's restroom. She could still use the 7-Eleven restroom at any time.

B. Chair Use

Also in October 2019, Ortiz's feet started to swell when standing, which she attributed to her pregnancy. To manage the swelling, she began sitting on a small folding chair that fit in her cubicle, except when helping a customer. But Hayes soon took the folding chair away and informed Ortiz of a new rule that the chairs used in the drive-through window area were the only authorized chairs. Ortiz responded that

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those chairs would not fit in her cubicle and she could not carry them back and forth from the drive-through window, but Hayes ignored her.

C. Ortiz's Termination After "Force Balancing" the Vault Log

On November 1, 2019, Ortiz and Hayes were on duty together. At one point, Hayes restocked her teller drawer with $25.00 in pennies she obtained from the branch vault, but she forgot to document that withdrawal.

At the end of the shift, Ortiz and another employee counted the cash in the vault to make sure it matched documented additions and subtractions. They found a $25.00 difference between the cash in the vault and the documentation. Ortiz asked (within earshot of Hayes) if anyone had documentation they had failed to submit, but Hayes said nothing and the other employees said "no." Ortiz then used white-out to cover over the starting cash amount on the vault log, and she wrote in a new figure that was $25.00 lower. So modified, the discrepancy disappeared.

Ortiz's modification of the vault log is what the Bank calls "force balancing," i.e., "the act of modifying a Bank record, such as a vault log or teller log, to avoid a cash difference." Aplt. App. at 45, ¶ 13. At least three different Bank policy documents list force balancing as a terminable offense.

Later that same day (apparently after Ortiz's shift had ended), Hayes recognized the $25.00 discrepancy, attributed it to her own failure to document taking money from the vault, and reported it to the branch manager, Mary Moulin. Then, on November 4 (the following Monday), Moulin and Hayes met with Ortiz to discuss the incident. Hayes admitted that her oversight caused the vault log to be out

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of balance. Ortiz denied intentionally force balancing the log, and she invoked "pregnancy brain" to explain her actions. Id. at 144-45.

The Bank terminated Ortiz on November 18, 2019. That decision was jointly made by Moulin and two members of the Bank's senior leadership. The Bank told Ortiz she was being terminated because she had force balanced the vault log, in violation of multiple Bank policies.

II. DISTRICT COURT PROCEEDINGS

Ortiz filed this lawsuit in July 2021, asserting multiple employment discrimination claims. By summary judgment, she had narrowed her claims to the following: "(1) . . . pregnancy discrimination^[1] in violation of Title VII of the Civil Rights Act of 1964 ('Title VII'); and (2) disability discrimination in violation of the Americans with Disabilities Act ('ADA')." Id. at 93. As to the ADA claim, however, Ortiz "concede[d] that the judges in the District of Kansas have held that pregnancy by itself is not a disability under the ADA," so she was asserting the claim "to preserve [it] for a possible appeal to the Tenth Circuit." Id. at 103-04. She included no argument about this claim. The district court accepted Ortiz's concession and accordingly granted summary judgment in the Bank's favor on the ADA claim.

As to her Title VII theories, Ortiz claimed the bank discriminated against her when: (i) it would not allow her to use the McDonald's restroom until a third

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employee arrived; (ii) it would not allow her to use the folding chair in her cubicle; and (iii) it terminated her, ostensibly for force balancing the vault log. Applying the McDonnell Douglas burden-shifting framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the district court ruled that Ortiz's theories based on restroom access and chair use failed because neither of those count as an adverse employment action. As to her termination, the district court assumed Ortiz could state a prima facie case of pregnancy discrimination, but ruled that Ortiz had not presented enough evidence from which a jury could conclude that the Bank's proffered explanation (violation of Bank policies) was pretextual. The district court therefore granted summary judgment in the Bank's favor on all of Ortiz's Title VII theories.

Having disposed of all extant claims against the Bank, the district court entered final judgment, and this appeal timely followed.

III. ANALYSIS

We review a summary judgment decision de novo, drawing all reasonable inferences in favor of the nonmoving party. Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

Ortiz...