Carney v. City and County of Denver, No. 06-1490 (10th Cir. July 24, 2008)

| Jul 24, 2008 | Daily Developments in EEO Law |

Here’s another case that demonstrates why employee advocates need Title VII, in spite of the procedural inconveniences, the short limitations periods and the capped damages.

Carney v. City and County of Denver, No. 06-1490 (10th Cir. July 24, 2008):  As noted in a prior post about section 1983 (Rioux v. City of Atlanta, Georgia, No. 07-11657 (11th Cir. Mar. 18, 2008)), the standards for liability and relief can be more challenging under other civil rights statutes.  A claim of race discrimination against a government employer under section 1981, just as under section 1983, requires proof of a policy or custom of racial discrimination. As the plaintiff here learned, to her regret, that can be a tough standard to surmount.

The plaintiff — a black female police recruit — filed two charges and a lawsuit concerning her prior attempts to enter the academy.  When she was finally accepted on a third application, “on her very first day, Ms. Carney alleges that she was told by an instructor ‘that there was a general consensus among the Academy Staff that [she] did not belong’ and that she ‘needed to be careful.'” She was alleged that she was exposed to physical brutality and suffered debilitating injuries as a result:

“Indeed, on the very day she was released from [medical] restrictions [for a torn Achilles tendon], Ms. Carney participated in a training exercise known as the ‘Baton Ring of Death,’ where she was ‘continually struck … in the face and on the back of the head,’ ‘knocked out of the ring onto [a] concrete floor,’ and then ‘deliberately and intentionally assaulted,’ by the aforementioned [police recruit] Brian Lang. This alleged misconduct – which Ms. Carney asserts violated a number of rules governing the Baton Ring of Death – resulted in Ms. Carney breaking her ankle. When she attempted to respond by filing an Internal Affairs complaint against Lang, Ms. Carney claims she was told ‘not to do so as it would jeopardize [her] career.'”

The plaintiff brought suit under sections 1981 and 1983 for retaliation and discrimination, but the district court granted summary judgment based on the absence of a policy or custom.  The Tenth Circuit affirmed.

The plaintiff conceded that she could not prove a policy of discrimination:  “Ms. Carney has neither alleged nor produced any evidence suggesting that her purported discrimination was caused by any legislative action or by ‘an official whose acts may fairly be said to be those of the municipality itself.’ Accordingly, in order to defeat summary judgement [sic], Ms. Carney must produce evidence that her alleged discrimination was the result of a municipal custom.”

To establish a custom of discrimination, the plaintiff proffered statistical evidence demonstrating that black women made up less than one-percent of the Denver police department.  The panel poured plenty of cold water on that one, holding that (1) the sample was limited to black women instead of African-Americans generally; (2) no qualified applicant pool was identified; (3) proof of hiring and promotion disparities were not probative of her hostile work environment and retaliation claims; and (4) plaintiff did not test the numbers for statistical significance.

The court also held that plaintiff’s anecdotal evidence of another victim of retaliation was insufficient to establish a custom, and laid out a standard for future cases: 

“In this case, we need not and do not decide whether only one piece of anecdotal evidence may be sufficient to establish a custom. It is clear, however, that although less precision may be tolerated if many anecdotes are offered, when few anecdotes are offered, they should be closely analogous to the circumstances in the case at bar. Of course, the number of similar, but unrelated, incidents and the closeness of the fit required will vary based, inter alia, on the size of the employer, the length of the time-frame in which the alleged retaliatory conduct took place, and the nature of the alleged retaliation. Practically speaking, if an employer has many employees, it likely follows that more employees will have experienced retaliation if such a custom exists. Under such circumstances, it also follows that more anecdotes ought to be required in order to support an inference that there is a custom of retaliation. While it is obviously impossible to draw any precise lines in this regard, and cases will no doubt vary based on their unique circumstances, this is an issue of which courts and litigants should be aware.”

In sum, the panel acknowledged that the plaintiff may have suffered discrimination, but lost because of the municipal liability theory she elected to pursue:  “In agreeing with the district court, we are by no means passing judgment on whether Ms. Carney was in fact discriminated against. Ms. Carney’s allegations are no doubt serious and unfortunate. Nevertheless, our opinion is predicated on the fact that Ms. Carney has failed to produce evidence suggesting that any such discrimination was the result of a policy or custom of the City’s police department. Such evidence is necessary to sustain a claim for municipal liability.”

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