Orr v. City Of Albuquerque

531 F.3d 1210 (10th Cir. 2008)

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Nature of the Case

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Facts

Ps sought time off for the births of their children in 2000, a right Congress has guaranteed them through the Family and Medical Leave Act (FMLA). Under the FMLA's terms, covered employees are entitled 'to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition,' and affected employers may not interfere with or discriminate against an employee seeking to exercise those rights. Ps' pregnancy-related leaves were approved by their supervisors, (but then the evil) Ms. Vigil, the personnel director, intervened to instruct them that they would have to exhaust their accrued sick leave before tapping into vacation time and that in no event could they utilize their accrued compensatory time (paid time off awarded for overtime work and in lieu of a cash payment). Ps contend that others seeking time off for reasons unrelated to pregnancy but still protected by the FMLA -- ranging from kidney dialysis to caring for a sick family member -- were routinely allowed to use compensatory and vacation time before dipping into sick leave. Under D's policy, sick days, unlike vacation or compensatory time, can be saved over the years and used to help secure early retirement. Also, the amounts of vacation and compensatory time are capped, so one must use or lose them. Only a limited amount of unused vacation time can be carried over from year-to-year, with the remainder having to be 'cashed out' at the end of each year. With respect to compensatory time, the police department had a policy requiring officers with more than 250 hours of compensatory time, of which Ps had, to use that time before being allowed to work additional overtime. By prohibiting their use of compensatory time, Ds effectively prohibited Ps from working overtime (and earning overtime pay) when they returned to work. After Ps initiated proceedings before the Equal Employment Opportunity Commission D entered into an agreement with the Albuquerque Police Officer's Association (APOA), to allow women seeking maternity leave (and all others taking leave for FMLA-qualifying purposes) to use compensatory time and do away with the requirement that they use sick days before other kinds of leave. Ps did not bring their suit under the FMLA but instead proceeded under the Pregnancy Discrimination Act ('PDA'), a component of Title VII that prohibits intentional discrimination in the workplace on the basis of pregnancy. Ds claim their actions were not the product of intentional discrimination on the basis of pregnancy in violation of Title VII. At trial, Ds argued that they had a uniform policy and that any discriminatory effect was a mistake. Ds claimed at trial that the fact that Ps were singled out was just the product of happenstance, mistake, or administrative oversight. 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. Ps sought to introduce a sworn affidavit by Detective Dow, as well as two APD memoranda appended to her affidavit, suggesting that in 1997 Ms. Vigil treated eight other pregnant female police officers just as she treated Ps 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. The district court concluded that Detective Dow's evidence was inadmissible under Rule 408. It ruled that the evidence implicated compromise discussions between herself and the Department and thus could not be considered under the terms of Rule 408. The trial court granted summary judgment to Ds and Ps appealed.