Ortiz v. Norton

• Decision Date: 18 June 2001
• Docket Number: No. 99-2180,99-2180
• Citation: 254 F.3d 889
• Parties: (10th Cir. 2001) MELVIN R. ORTIZ, Plaintiff - Appellant, v. GALE A. NORTON, <A HREF="#fr1-*" name="fn1-*">* Secretary of the Interior, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 889

254 F.3d 889 (10th Cir. 2001)

MELVIN R. ORTIZ, Plaintiff - Appellant, v. GALE A. NORTON,^* Secretary of the Interior, Defendant - Appellee.

No. 99-2180

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 18, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-97-0738-JC/LFG)

[Copyrighted Material Omitted] William J. Friedman, IV, and C. David Henderson, Santa Fe, New Mexico, for Plaintiff-Appellant.

David W. Ogden, Assistant Attorney General, Norman C. Bay, United States Attorney, Marleigh D. Dover and Mark S. Davies, Attorneys, Appellate Staff, Washington, D. C., for Defendant-Appellee.

Before BRISCOE, HOLLOWAY and POLITZ, Circuit Judges.^**

HOLLOWAY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral argument.

Plaintiff-appellant Ortiz brought this employment discrimination action against his former employer, the Secretary of the Interior. Plaintiff alleged discrimination based on his Hispanic national origin and retaliation for a previous, successful discrimination complaint. The district court's jurisdiction was based on 42 U.S.C. 2000e-16(c) and 28 U.S.C. 1331. The district court granted summary judgment to defendant and plaintiff appeals. We have jurisdiction under 28 U.S.C. 1291.

I

A

The following outline of the factual background of this case is taken from the district court's Memorandum Opinion, II App. 205-16, addressing the defendant's motion for summary judgment; as will be discussed, however, we find the district court's review of the evidence incomplete and flawed. Additional evidence will be discussed in our analysis as needed.

Plaintiff worked for a number of years for the Department of the Interior's Fish and Wildlife Service ("FWS") as a realty specialist. Plaintiff worked in Region 2 of the FWS in Albuquerque. In 1992, plaintiff had filed a complaint alleging that he had been denied any promotions as a result of discrimination against Hispanics. (From a statement submitted in support of plaintiff's opposition to the defendant's motion for summary judgment, it appears that the "complaint" was filed internally with the FWS's own equal employment opportunity staff.)

In 1993, plaintiff's complaint was settled. Among other things, plaintiff was given a promotion and placed under the supervision of Charles Ault. The district court said that plaintiff had presented evidence "that Ault knew that the transfer was part of the settlement of some type of a complaint by Ortiz" and evidence that "Ault had a personal bias" against plaintiff. II App. 206.

In 1994, plaintiff was convicted in state court of aggravated battery and sentenced to 364 days' imprisonment. He appealed and was released during the pendency of the appeal. On February 17, 1995, plaintiff was informed that his conviction had been affirmed and that he must turn himself in to serve his period of incarceration within five days, by February 22, 1995. Plaintiff's attorney was later able to obtain an order giving plaintiff an additional five days, until February 27, 1995, to begin serving his sentence.

Faced with this abrupt notice that he must report to prison, plaintiff contacted his supervisor, Ault, to request a leave of absence without pay. This first of three requests, all of which Ault denied, was made orally; the district judge noted that there was conflicting evidence as to whether the request was made for a definite or an indefinite period of time. Plaintiff did not give a reason for his request, the judge said, but there was evidence that Ault and other employees knew of the conviction and required incarceration.

Plaintiff then submitted a written request for 160 hours of leave without pay, without giving a reason for the request. Ault denied the request on the basis that there was "no justification . . . nor any mutual benefit for the Service." Next, on Friday, February 24, plaintiff submitted a written request to use all of his available vacation time and included with the request a letter saying that the request was due to "a personal and family emergency (of a personal nature)." That afternoon, plaintiff met to discuss the request with Ault; also present was the acting personnel officer for Region 2 of the FWS, Victor Segura. According to the district judge, plaintiff refused to discuss the details of the matter without his attorney being present or some assurances that the information would be considered in good faith. (As noted, infra, there was other relevant evidence not discussed in the Memorandum Opinion.) Ault placed plaintiff on administrative leave for two weeks to decide what action to take.

Plaintiff had no further direct contact with Ault, Segura, or Ms. Lynn Starnes, the Acting Regional Director, during that time. He did contact the equal employment opportunity counselor who had aided him in connection with his previous complaint. At the end of the two weeks, Ault informed plaintiff by letter that his request for leave was denied, citing the need to meet critical deadlines on projects for which plaintiff was responsible. Starnes, acting for FWS, terminated plaintiff's employment on May 13, 1995, on grounds that he had been absent without leave.

B

In an order of April 14, 1998, the district court dismissed several of plaintiff's claims, leaving only his claims based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. The same order dismissed all claims against Ault and the FWS, leaving the Secretary as the only defendant. These rulings are not at issue on appeal.

The defendant Secretary of the Interior then moved for summary judgment, which was granted in an order entered January 29, 1999. The judgment was explained in a Memorandum Opinion by the district court on that same date. II App. 205-216. The district court's reasoning will be set out infra in our analysis of the issues raised by plaintiff on appeal.

After the court had entered judgment in favor of defendant, plaintiff made a motion to reconsider, which was denied. On the same day that the court's order denying the motion to reconsider was entered, plaintiff filed a second motion to reconsider in which he sought additional discovery. In that motion, plaintiff stated that counsel had recently received what he believed to be important, relevant new information an internal report by the FWS concerning personnel problems in Region 2, which we will discuss infra. On appeal, plaintiff contends that the district court abused its discretion in denying the motions to reconsider and erred in granting summary judgment for the defendant.

II

A

We review the district court's decisions on motions for summary judgment de novo, applying the same standard as the district court. See Trujillo v. University of Colo. Health Sciences Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998). Summary judgment is appropriate only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. Id.

The burden of showing that no genuine issue of material fact exists is borne by the moving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). When, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by identifying "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671. This court draws all reasonable inferences in favor of the nonmoving party. See Curtis v. Oklahoma City Public Sch. Bd. of Ed., 147 F.3d 1200, 1214 (10th Cir. 1998). If no genuine issue of material fact is in dispute, this court then determines whether the substantive law was correctly applied by the district court. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

B

After setting out the facts, as we have outlined supra, the court proceeded to analyze the issues raised by the parties. The judge construed the complaint as stating two separate claims under Title VII, one for disparate treatment based on national origin and one for retaliation based on plaintiff's 1992-93 claim of ethnic bias. Neither party claims error due to this method of analysis of the complaint by the judge.

On the first claim, disparate treatment, the district court concluded that plaintiff had failed to meet the burden of showing a prima facie case under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The judge concluded that plaintiff had shown the first two elements of his prima facie case: that he is a member of a protected class and that he suffered an adverse action by the employer. As to the third element, that he was doing satisfactory work, the court said that plaintiff had presented sufficient evidence. The district judge held, however, that plaintiff had failed to present evidence to establish a genuine issue of material fact as to the fourth element of his prima facie case. The judge stated that as to this fourth element, plaintiff was required to show that he was treated less favorably than others outside the protected class. To meet this burden, the judge said the plaintiff would have to show that he was treated less favorably than other "similarly situated" employees. II App. 210.

The judge said that at the outset he would have to determine which employees were "similarly situated." In this regard the judge said:

"Comparable" employees must be similarly situated in all respects relevant to the...