Randle v. City of Aurora, 94-1137

• Citation: 69 F.3d 441
• Decision Date: 26 October 1995
• Docket Number: No. 94-1137,94-1137
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 489 Ofelia RANDLE, Plaintiff-Appellant, v. CITY OF AURORA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 441

69 F.3d 441

69 Fair Empl.Prac.Cas. (BNA) 489

Ofelia RANDLE, Plaintiff-Appellant, v. CITY OF AURORA, Defendant-Appellee.

No. 94-1137.

United States Court of Appeals Tenth Circuit.

Oct. 26, 1995.

Neal S. Cohen of Chrisman, Bynum & Johnson, P.C., Boulder, Colorado (Rebecca L. Fischer with him on the briefs), for Plaintiff-Appellant.

Teresa Kinney, Assistant City Attorney, Office of City Attorney, Aurora, Colorado (Charles H. Richardson with her on the brief), for Defendant-Appellee.

Before BALDOCK, MCKAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This is an appeal from the district court's grant of summary judgment to the Defendant-Appellee City of Aurora ("the City") on Plaintiff-Appellant Ofelia Randle's ("Randle") claims of employment discrimination under 42 U.S.C. Sec. 2000e-2(a)(1) ("Title VII") ¹ as well as under 42 U.S.C. Sec. 1983 ² and 42 U.S.C. Sec. 1981. ³ In this appeal, we first review the district court's ruling that the City neither maintained a custom of discriminatory employment practices nor granted sufficient authority to the City Manager, Finance Director and the Human Resources Director (collectively "the City officials") to make them "final policymakers" so as to give rise to Secs. 1981 and 1983 liability on behalf of the City. We AFFIRM the district court's ruling that there was no showing that the City maintained a custom of discriminatory employment practices, but REVERSE the district court's summary judgment ruling that the City officials were not "final policymakers" so as to impute liability to the City, and REMAND for further proceedings on this issue.

Turning to the merits of the employment discrimination claims, we consider Randle's disparate treatment claims based on the City's (1) failure to promote her; (2) failure to announce a position to which she could have applied; and (3) discrimination against her by paying a higher salary to a white co-worker with the same job title. As to these claims, we AFFIRM the district court's grant of summary judgment for the City on the failure to announce claim, but REVERSE the grant of summary judgment for the City on the failure to promote and wage discrimination claims. Thus, we REMAND this case for further proceedings consistent with this opinion.

I. BACKGROUND

Randle, an Asian woman of Filipino nationality, has been employed by the City as a Liquor Licensing Administrative Assistant in the Liquor Licensing Section of the City's Finance Department since October 29, 1984. When Randle was hired by the City, she was trained by Ruby Allman, a white woman, who had been working with the City since 1983, and who, since the inception of Randle's employment with the City, has continued to be paid $5,000 more per year than Randle. By 1988, Randle had completed her training and assumed at least 90% of the job responsibilities performed by Allman. Randle began receiving as good or better job evaluations as Allman, but never received a raise to equalize her salary with Allman's salary.

In May 1989, Randle applied for a promotion to Licensing Technician III. ⁴ The City certified Randle as qualified for the position and interviewed her, but passed over her in favor of Beverly Gilmore, a white woman.

As a result of a May 1991 reorganization, both Allman's and Randle's job descriptions were redrafted to be made identical and both of their titles were changed to Licensing Clerk, but Allman retained her higher salary. Despite their identical job descriptions, Allman continued to perform additional responsibilities outside of her job description, including preparing reports for the City Council, changing the licensing authority's rules and regulations, researching various issues and preparing the budget--which, taken together, consumed approximately ten percent of her time. Due to her concern over the wage differential between her and Allman, Randle requested an explanation from the City Manager, who referred the matter to Nancy Carney, the City's Director of Human Resources. Carney responded that the differential was based solely on the fact that Allman was hired 1.5 years before Randle and received pay raises since then that preserved the differential. However, based on the 1.5 additional years of employment, Randle claims, relying on the expert opinion of Patricia Pacey, a labor economist, that Allman only merits 6% more pay than Randle, rather than the 24% differential that presently exists and has existed between them. Pacey, however, only testified on the basis of "typical pay plans in labor economics," and the 6% figure only reflected her estimate of inflation for 1.5 years. Additionally, Randle questions the City's explanation for the differential because such a wage differential did not occur when Karen Richards was hired for a Licensing Technician III position, as Richards was paid the same salary (or slightly more) than that earned by Beverly Gilmore, who had previously held that position and enjoyed several years of seniority over Richards.

The May 1991 reorganization not only gave both Allman and Randle the same job titles, but also eliminated one of the Licensing Technician III positions and created a new Licensing and Enforcement Administrator position. This position was responsible for supervising the licensing clerks (i.e. Allman and Randle), the remaining Licensing Technician III position, and an assistant. The Finance Director, John Gross, consulted with the Human Resources Director, Nancy Carney, about how to fill this position and she told him that he need not post the vacancy because it resulted from a reorganization. Gross was wary of not announcing the position because that would deviate from the City's normal practice of announcing new positions--reflected in the Personnel Manual's requirement that all permanent positions be announced internally for a minimum of five days. However, Carney explained that Administrative Policy Memorandum ("APM") 3.4 permitted such an exception from normal practice. Gross ultimately reassigned Beverly Gilmore to this new position without a formal announcement of the opening--a decision sanctioned by Carney as well as the City Manager, John Pazour.

In September 1991, the Technician III position again became vacant, but the position now required an Associate's Degree--that is, the ability to substitute other education or experience for this degree was dropped from the job posting. Randle applied for the position, but the City refused to certify her application because she did not have an Associate's Degree. As no other internal candidates met the requirements for the position, the City hired Karen Richards, an outside applicant and a white woman, for the position. While Richards also lacked an Associate's Degree, the City viewed her two years of college as a sufficient substitute; however, when the City thereafter discovered that she had not actually completed these two years of college, it chose to allow her to remain in the position even though it had customarily fired other employees for misrepresenting material facts on their employment applications.

On January 24, 1992, Randle filed a complaint with the Colorado Civil Rights Division ("CCRD") and the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of race and national origin based on the City's failure to promote her in 1991 and the disparity between her compensation and Allman's. The CCRD issued its determination of no probable cause and the Colorado Civil Rights Commission subsequently denied Randle's appeal; the EEOC issued Randle's right to sue letter on October 7, 1992 and Randle filed this lawsuit two months later.

The district court granted the City's motion for summary judgment, ruling against Randle on her Secs. 1981 and 1983 claims by determining that the City was not liable for the challenged actions and concluding that the City did not violate Title VII. Randle v. City of Aurora, No. 92-N-2528 (D.Colo. Jan. 5, 1994). The district court then dismissed her state law claim because supplemental jurisdiction was no longer warranted. ⁵ Randle moved to alter or amend the judgment, but the district court denied that motion in a written opinion. Randle now appeals the district court's rulings on her Secs. 1981 and 1983 claims as well as on her Title VII claim.

II. DISCUSSION

A. MUNICIPAL LIABILITY UNDER Sec. 1983 AND Sec. 1981 ⁶

We first analyze whether the City is liable under Sec. 1983 and Sec. 1981 for the alleged discriminatory acts of its City Manager, Finance Director and Human Resources Director. ⁷ In the instant case, Randle has alleged that the City is liable for the actions of the City officials ⁸ because (1) they were acting pursuant to a custom of discriminatory employment practices; or (2) the actions of these officials in setting Randle's salary and in declining to promote her were the actions of City officials with final policymaking authority.

1. Custom Or Usage

Randle's failure to allege the existence of similar discrimination as to others seriously undermines her claim that the City maintained a custom of discriminatory personnel practices. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 130, 108 S.Ct. 915, 926, 927-28, 99 L.Ed.2d 107 (1988) (plurality opinion) (custom requires that the illegal practice be "widespread"--i.e., involving a "series of decisions"); Melton v. City of Oklahoma City, 879 F.2d 706, 725 n. 26 (10th Cir.1989) (distinguishing case from Praprotnik because plaintiff offered evidence that the City acted similarly against another person in addition to himself, and thus, was potentially able to demonstrate the existence of a custom), modified on other grounds, 928 F.2d 920, 922 (10th Cir.) (en banc) (explicitly leaving panel's judgment on Sec. 1983 liability intact), cert. denied, 502 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991). The Supreme Court recently reiterated that governmental entities may be held liable for a ...