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Orr v. City of Albuquerque, No. 07-2105 (10th Cir. July 8, 2008)

| Jul 7, 2008 | Daily Developments in EEO Law |

Here’s a good case of old-fashioned McDonnell Douglas pretext, where the employer claims that it applied a uniform, written leave policy to pregnant employees — despite that the policy did not even exist until after the plaintiff’s pregnancy. While recognizing that employers are entitled to wide latitude in exercising managerial authority, and may act on mistaken though “honest belief” without violating Title VII, the panel notes that the honesty of the employer’s belief may not be susceptible to resolution on summary judgment.

Orr v. City of Albuquerque, No. 07-2105 (10th Cir. July 8, 2008) — The Personnel Director for the Albuquerque Police Department Mary Beth Vigil refused to grant two women FMLA leave for their pregnancy until they have exhausted their sick leave time. The record presented instances where the same condition was imposed on other women seeking pregnancy leave, but not on other employees facing comparable medical leave needs.

The panel opinion, reversing summary judgment for the city, summarizes the conflict —

“Officers Paiz and Orr allege that defendants discriminated against them when they took leave for the births of their children. Defendants seek to justify their treatment of plaintiffs in two ways: First, defendants say they were simply following Department policy. Second, and alternatively, defendants argue that even if they weren’t applying Department policy, Ms. Vigil simply made a good faith mistake in requiring plaintiffs to exhaust sick leave and prohibiting them from using compensatory and sick time. After a thorough review of the record in this case, we find that the plaintiffs have presented evidence undermining both of defendants’ explanations – and done so in a manner a reasonable jury could find suggestive of pretext for intentional discrimination.”

The first putative “legitimate, non-discriminatory” reason, the Tenth Circuit finds, runs smack into a conflict in the record:  “Officers Orr and Paiz have come forward with evidence suggesting that the regulations in question were not issued until May 2000, a month after Officer Orr gave birth to her child, and that they remained in draft form throughout 2000, when both plaintiffs sought and took maternity leave. Indeed, plaintiffs’ proof suggests that the regulations in question did not take effect until February 2001, and even then they were changed almost immediately pursuant to the APOagreement in June 2001.”

So the city resorts to the last refuge of employers: the manager’s “honest belief” that such a policy existed de facto, if not de jure.  But the panel also finds a genuine issue of material fact on this alternative argument:

“To be sure, defendants offer a fall-back justification for Ms. Vigil’s actions. Whatever the Department’s policy and practice may have been, defendants insist that Ms. Vigil honestly, if perhaps mistakenly, believed Department policy required the use of sick leave for all FMLA-qualifying absences, and precluded the use of compensatory time all-together. In response to the fact that so many employees took leave for reasons unrelated to a pregnancy without being forced to tap into their sick leave accounts, defendants stress that Ms. Vigil did not personally review every employee’s leave request; only when someone flagged a request as a potential problem did she become involved. At bottom then, defendants submit, the fact that Officers Orr and Paiz were singled out was just the product of happenstance, mistake, or administrative oversight.

“This line of argument often can provide a good defense; after all, people make mistakes and Title VII does not provide a cause of action for every human resources department error. See Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (‘[O]ur role is to prevent intentional discriminatory . . . practices, not to act as a ‘super personnel department,’ second guessing employers’ honestly held (even if erroneous) business judgments.’). Rather, Title VII requires a plaintiff to come forward with evidence from which a jury could conclude that the defendants’ behavior was the result of something more than a mistake – namely, discriminatory animus. See id.; Swackhammer, 493 F.3d at 1168; see also Miller, 396 F.3d at 1111.

“Plaintiffs acknowledge their burden in this vein and point us to evidence presented by Detective Dita Dow, in the form of a sworn affidavit, as well as two APD memory and appended to her affidavit, suggesting that in 1997 Ms. Vigil treated eight other pregnant female police officers just as she treated plaintiffs in 2000, requiring them to use sick time for maternity leave. Detective Dow testified that these female officers, through counsel, asked Ms. Vigil and the Department to review their cases, emphasizing that other employees were freely allowed to use compensatory and vacation time for FMLA leave. The Department  agreed to undertake such a review and, ultimately, seemingly acknowledged Ms. Vigil’s disparate treatment by restoring all of the pregnant officers’ sick leave.”

Thus, “a reasonable jury could disbelieve defendants’ claim that Ms. Vigil’s treatment of Officers Orr and Paiz was merely a mistake.”

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