Freppon v. City of Chandler , 528 F. App'x 892 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 1, 2013
Elisabeth A. Shumaker
Clerk of Court
SABRINA MARIE FREPPON,
Plaintiff-Appellant,
v. No. 12-6176
(D.C. No. 5:11-CV-00912-HE)
CITY OF CHANDLER; LT. STEVE (W.D. Okla.)
SIMON,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Plaintiff Sabrina Marie Freppon filed suit against her former employer, the
City of Chandler, Oklahoma (the City). She alleged gender/pregnancy discrimination
against the City in violation of Title VII because (1) it denied her request for a light
duty assignment to accommodate her pregnancy and forced her to take a twelve-week
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unpaid leave of absence under the Family Medical Leave Act (FMLA), and (2) it
terminated her from her job as a police officer. Ms. Freppon also alleged that the
City retaliated against her in violation of Title VII because she complained to the
Chief of Police, Matt Mattheyer, that male police officers had been allowed to
modify their work duties when they were temporarily unable to perform all of their
normal duties. Finally, Ms. Freppon asserted claims under Oklahoma law against the
City and Lt. Steve Simon. The district court entered summary judgment in favor of
the City on Ms. Freppon’s Title VII claims and declined to exercise supplemental
jurisdiction over her state law claims.1 We have jurisdiction under 28 U.S.C.
§ 1291. We remand Ms. Freppon’s termination claim to the district court with
instructions to dismiss it for lack of subject matter jurisdiction. We affirm the grant
of summary judgment as to her remaining Title VII claims.
I. BACKGROUND
A. Factual History2
After working as a dispatcher for the City for several months, Ms. Freppon
began working for the City as a police officer in January 2009. At that time and
1
The district court dismissed Ms. Freppon’s state law claims without
prejudice. Because Ms. Freppon has not challenged the district court’s refusal to
exercise supplemental jurisdiction over her state law claims, we do not need to
address them. See Phillips v. Humble, 587 F.3d 1267, 1274 (10th Cir. 2009).
2
We recite the facts in this case as we must view them: in the light most
favorable to the party opposing summary judgment. See Mathews v. Denver
Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir. 2011).
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continuing through the events at issue in this case, Ms. Freppon was the only female
police officer in the Chandler Police Department. There were six male officers in the
department.
Ms. Freppon sustained a foot injury while off duty in June 2010 and was
off work for approximately four weeks. Toward the end of the four weeks,
Ms. Freppon’s doctor released her to return to work as a police officer with a “light
duty” restriction. However, when Ms. Freppon asked Chief Mattheyer if she could
be placed on “light duty” until she fully recovered from the injury, he told her that
the Chandler Police Department did not have any light duty for her. See Aplt. App.
at 76-77 (Depo. Pages 49-51).
In early August 2010, Ms. Freppon informed Chief Mattheyer that she was
pregnant. On October 15, 2010, Ms. Freppon gave Chief Mattheyer a note from her
doctor, which stated: “Sabrina is pregnant & shouldn’t be doing heavy physical
work. She may do desk/clerical work (light duty).” Aplt. App. at 157. Chief
Mattheyer told Ms. Freppon that he needed to talk with James Melson, the City
Manager. Id. at 77 (Depo. Pages 51-52). After speaking with Mr. Melson, Chief
Mattheyer told Ms. Freppon that there was no light duty available. Id. at 77
(Depo. Page 52), 83-84 (Depo. Pages 77-78). Ms. Freppon then complained to Chief
Mattheyer that other male officers had received light duty assignments in the past.
Id. at 77 (Depo. Page 52), 84 (Depo. Page 78), 91 (Depo. Pages 108-09). Chief
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Mattheyer told Ms. Freppon that the other officers had received light duty
assignments because “theirs were on-the-job injuries.” Id. at 77 (Depo. Page 52).
On October 18, 2010, the City placed Ms. Freppon on involuntary unpaid
FMLA leave. Id. at 7 (¶ 8), 20 (¶ 8), 83 (Depo. Pages 74-77), 158-59. The FMLA
paperwork that Ms. Freppon received stated that she had “a right under the FMLA for
up to 12 weeks of unpaid leave.” Id. at 159.
On October 21, 2010, Ms. Freppon’s attorney sent a letter to Chief Mattheyer
requesting that Ms. Freppon be given a light duty assignment due to her pregnancy.
Id. at 160. The letter stated that “[s]ince the department has provided light duty
assignments to male officers with temporary physical limitations, that same
opportunity must be provided to female officers as well – and specifically to
Ms. Freppon.” Id.
On November 19, 2010, an attorney retained by the City sent a letter to
Ms. Freppon’s attorney. The letter stated as follows:
The City of Chandler has requested that my office respond to
your letter to the City on behalf of Chandler Police Officer Sabrina
Freppon requesting that Ofc. Freppon be provided a light duty
assignment due to her pregnancy. Your letter advises that Ofc. Freppon
is entitled to a light duty assignment because she alleges that the City
previously provided light duty assignments to male officers.
To its knowledge, the City of Chandler has never provided a light
duty assignment to a Police Officer for a non-work related
illness/injury/condition which prevented the officer from performing
his/her essential job functions. The prior Police Chief had, on two
occasions, modified an officer’s duties as a result of the officer’s
inability to perform all of their job duties due to restrictions associated
with a work related injury. In both instances, the Officer was
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performing essential job duties associated with their position while on
the modified assignment. Further, in both instances the modified duties
were for a limited period of time. Finally, following the most recent
instance in which a modified work schedule was permitted, a decision
was made by the City and current Chief Mattheyer to discontinue
offering any form of light or limited duty to Chandler Police Officers
who are unable to perform all their essential duties due to a work related
injury. Ofc. Freppon was advised of this decision by Chief Mattheyer in
July of this year, when she requested light duty as a result of a non-work
related injury she suffered, and was denied.
Based on the City’s prior decision to eliminate light/limited duty
in the Police Department, your client’s request is denied. Further, as it
relates to the contention that the City is obligated to provide your client
with a light duty assignment because of prior modified duty assignments
which were provided to male officers, your client’s situation is not
comparable. Your client’s condition is not work related. The City’s
understanding of your client’s request is that she is requesting to be
allowed to perform duties which are not essential duties of her position
as a Police Officer. Finally, the requested light duty assignment would
be for a far greater period of time than was provide[d] in the prior
instances. Based on this understanding, the City cannot grant your
client’s request for a light duty assignment.
Id. at 161-62.
On January 31, 2011, the City’s attorney sent another letter to Ms. Freppon’s
attorney, stating the following:
As you are aware, Ms. Freppon provided the City with
documentation from her treating physician indicating that, due to her
pregnancy, she was unable to perform certain essential functions of her
position as a Patrol Officer with the Chandler Police Department. Upon
receiving this documentation, the City of Chandler provided
Ms. Freppon with the necessary FMLA paperwork pertaining to her
extended absence from duty. The twelve (12) weeks has now expired.
The City has recently received information from the Oklahoma
Employment Security Commission indicating that your client has
advised the State that she is no longer employed by the City of
Chandler. To date, the City has not involuntarily separated
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Ms. Freppon’s employment and has further received no paperwork
from Ms. Freppon indicating that she is voluntarily separating her
employment. Please advise regarding your position as to Ms. Freppon’s
employment status with the City. . . .
To insure the interests of all involved are protected, the City is
requesting a response by February 11, 2011.
Id. at 315.
Finally, on March 28, 2011, James Melson, the City Manager, sent a letter to
Ms. Freppon regarding “Notice of Separation.” Id. at 163. The letter read as
follows:
As you are aware, you have been unable to report for duty for
quite some time. The City received a letter from an attorney . . .
indicating that you believed you were being discriminated against on the
basis of your gender. The City denied that allegation. Thereafter, the
City received a notice that you had advised the State (OESC) that your
employment with the City had been separated. The City, through its
legal counsel, contacted your attorney at the end of January, 2011,
asking for your position regarding whether you believed you were still
employed despite the OESC filing. This inquiry was made since the
City had not separated your employment and had received no direct
notice from you that you were separating your employment. The City
was thus left to conclude that you had voluntarily separated your
employment based on your OESC filing. Your attorney did not respond
in the time frame set forth in the City’s letter. Several attempts were
made to contact your attorney by telephone, but none was successful.
In light of your counsel’s failure to respond to the city refuting
your assertion to the OESC that you were no longer employed, the City
is left to conclude that you have indeed separated your employment.
Consequently, a notation to that effect will be made in your file. Your
health insurance will continue through the close of the month. You will
receive paperwork from the City indicating your right to continue that
health insurance, as well as other procedural issues. Should you have
any City property in your possession, please arrange with Chief
Mattheyer to return that property (e.g. badge, commission card,
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uniform, etc.). If any of your personal property is located at the City,
Chief Mattheyer can arrange for its return.
Id. at 163.
According to Ms. Freppon, in May 2011, following the birth of her baby, her
“doctor released her to return to full duty without restrictions.” Id. at 8. She then
attempted to return to her employment with the City’s police department, but “she
was told that her employment was terminated.” Id.
B. Procedural History
Ms. Freppon subsequently filed a complaint against the City in federal district
court. In June 2012, the district court entered summary judgment in favor of the City
on Ms. Freppon’s Title VII pregnancy discrimination and retaliation claims. In doing
so, the district court correctly recognized that Ms. Freppon asserted two distinct
pregnancy discrimination claims. First, Ms. Freppon claimed that the City
discriminated against her when it denied her request for a light duty assignment and
forced her to take a twelve-week unpaid leave of absence under FMLA. Second,
Ms. Freppon claimed that the City discriminated against her when it terminated her.
The district court also correctly recognized that Ms. Freppon alleged that she was
subjected to two separate adverse employment actions in retaliation for her complaint
to Chief Mattheyer concerning his denial of her request for a light duty assignment.
The alleged adverse actions were (1) the City denied her access to the gun range on
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one occasion, id. at 358-59; and (2) the City forced her to take twelve weeks of
unpaid FMLA leave, id. at 359.3
II. DISCUSSION
A. Termination Claim and Administrative Exhaustion
Following a limited remand for the district court to make findings concerning
whether Ms. Freppon administratively exhausted her pregnancy discrimination claim
related to her termination, the district court determined that Ms. Freppon failed to
exhaust her wrongful termination claim. The court noted that Ms. Freppon filed an
administrative charge with the Equal Employment Opportunity Commission for
gender/pregnancy discrimination and retaliation in November 2010.4 Several months
3
In both her complaint and her response to the City’s motion for summary
judgment, Ms. Freppon limited her Title VII retaliation claim to the City’s actions of
denying her access to the gun range and forcing her to take FMLA leave. See Aplt.
App. at 10, 193-96. Although Ms. Freppon argues in conclusory fashion in her
opening brief that “she was terminated because of her gender or recent pregnancy or
in retaliation for seeking light-duty,” Aplt. Opening Br. at 24, we conclude that
Ms. Freppon failed to preserve a retaliation claim based on her termination in the
district court proceedings. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136,
1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not consider
arguments raised for the first time on appeal.”). And even if she did preserve such a
claim, she has inadequately briefed it in her opening brief. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in
the opening brief are waived . . . .”). Consequently, we will not address a retaliatory
termination claim.
4
In her administrative charge, Ms. Freppon alleged that the City discriminated
and retaliated against her in October 2010 when it denied her request for a light duty
assignment and forced her to take FMLA leave. See Aplt. App. at 319. The EEOC
dismissed the charge and issued right-to-sue letter to Ms. Freppon in May 2011.
(continued)
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later, in March 2011, the City Manager sent Ms. Freppon the “Notice of Separation”
terminating her employment, but she never filed another charge with the EEOC
related to her termination. Because the district court determined that Ms. Freppon’s
termination was a discrete employment action that had to be separately exhausted, the
court concluded that it lacked subject matter jurisdiction over Ms. Freppon’s
wrongful termination claim. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.
1996) (“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit
under Title VII.”) (internal quotation marks omitted).
We review the district court’s exhaustion findings de novo. Id. at 1399-1400.
Having conducted the required de novo review, we agree with the district court’s
analysis. As a result, we must dismiss Ms. Freppon’s wrongful termination claim for
lack of subject matter jurisdiction. Id. at 1399; see also Joslin v. Sec’y of Dep’t of
Treasury, 832 F.2d 132, 134 (10th Cir. 1987) (“[T]he question of a district court’s
subject matter jurisdiction may be raised for the first time on appeal.”).
As the district court correctly recognized, the exhaustion issue is controlled by
our decision in Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003). The plaintiff in
Martinez filed a formal EEO complaint in July 1999 in which he complained about
Id. at 321. Because Ms. Freppon’s administrative charge was timely filed and
resulted in receipt of a right-to-sue letter, she properly exhausted her Title VII
discrimination and retaliation claims related to the events that occurred in October
2010. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir. 1999). We therefore discuss the merits of those
claims below.
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retaliatory treatment that allegedly occurred in May 1999. In the subsequent
litigation in federal district court, however, the plaintiff sought to litigate additional
retaliation claims pertaining to a September 2000 reprimand and his termination in
April 2001. Because the plaintiff never filed formal EEO complaints regarding the
latter incidents, we concluded that the district court correctly determined that plaintiff
had failed to exhaust his administrative remedies as to his additional retaliation
claims. Our reasoning was quite different than the analysis of the district court,
however, and we announced a fundamental change in this area of the law based on a
recent Supreme Court decision:
As to [plaintiff’s allegations regarding the September 2000
reprimand and his termination in April 2001], the district court held that
they could not proceed because they were not like or reasonably related
to the allegations in Mr. Martinez’s EEO complaint, and Mr. Martinez
had failed to exhaust administrative remedies. In determining that
Mr. Martinez was required to exhaust administrative remedies with
regard to the September 2000 and April 2001 disciplinary actions the
district court relied on our holdings in Jones v. Denver Post Corp.,
203 F.3d 748, 755 (10th Cir. 2000) and Ingels v. Thiokol Corp., 42 F.3d
616, 625 (10th Cir. 1994). See also Brown v. Hartshorne Pub. Sch.
Dist., 864 F.2d 680, 682 (10th Cir. 1988). Those cases explain that
“[w]hen an employee seeks judicial relief for incidents not listed in his
original charge to the EEOC, the judicial complaint nevertheless may
encompass any discrimination like or reasonably related to the
allegations of the EEOC charge, including new acts occurring during the
pendency of the charge before the EEOC.” See Ingels, 42 F.3d at 625(quotation omitted).
Although we agree with the district court that these claims were
not properly before it, the Supreme Court’s recent pronouncement in
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 . . .
(2002), has effected fundamental changes to the doctrine allowing
administratively unexhausted claims in Title VII actions. We agree with
the government that such unexhausted claims involving discrete
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employment actions are no longer viable. Morgan abrogates the
continuing violation doctrine as previously applied to claims of
discriminatory or retaliatory actions by employers, and replaces it with
the teaching that each discrete incident of such treatment constitutes its
own “unlawful employment practice” for which administrative remedies
must be exhausted. Id. at 110-13 . . . . “Discrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire are
easy to identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable
‘unlawful employment practice.’” Id. at 114 . . . . In Morgan, this rule
applied to bar a plaintiff from suing on claims for which no
administrative remedy had been sought, when those incidents occurred
more than 300 days prior to the filing of plaintiff’s EEO complaint.
The rule is equally applicable, however, to discrete claims based on
incidents occurring after the filing of Plaintiff’s EEO complaint. . . .
....
The September 2000 and April 2001 disciplinary actions are
clearly discrete and independent actions, though part of what
Mr. Martinez must necessarily claim is a “continuing violation.”
Because the rule in Morgan requires a Title VII plaintiff to exhaust
administrative remedies for each individual discriminatory or retaliatory
act, and precludes reliance upon a continuing violation theory, we
affirm the judgment of the district court.
Martinez, 347 F.3d at 1210-11 (second alteration in original).5
As the district court here found, it is undisputed that Ms. Freppon did not file a
separate administrative charge after she was terminated from her employment with
the City. Just like the plaintiff in Martinez, Ms. Freppon therefore failed to exhaust
her wrongful termination claim, and we lack subject matter jurisdiction over the
claim. In her supplemental briefs, however, Ms. Freppon claims that she meets an
5
We note that the rule in Morgan does not apply to hostile work environment
claims, and that the continuing violation doctrine therefore remains viable for such
claims. However, Ms. Freppon has not asserted a hostile work environment claim.
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exception to the exhaustion rule since her termination claim was “reasonably related”
to her exhausted discrimination claim pertaining to the City’s denial of her request
for a light duty assignment and her involuntary FMLA leave. But in making this
argument, Ms. Freppon relies on the very language and authorities that this court
abrogated in Martinez. See Aplt. Supp. Opening Br. at 4-5; Aplt. Supp. Reply Br. at
4. In fact, she illogically argues that “[s]he is not claiming a ‘continuing violation,’
. . . but is asserting a claim that is ‘reasonably related’ and reasonably grows out of
her filed EEOC charges.” Aplt. Supp. Reply Br. at 4. This argument is unavailing,
however, given that Martinez explicitly tied the “reasonably related” test to the
abrogated continuing violation doctrine, as the above-quoted language from Martinez
clearly demonstrates. As we have explained:
Previously, we would proceed to examine whether the alleged
employment action, provided it occurred after the filing of the EEOC
charge, was “like or reasonably related to the allegations of the EEOC
charge.” Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994).
However, our recent holding in Martinez v. Potter, 347 F.3d 1208(10th Cir. 2003), has foreclosed this line of inquiry. In Martinez, we
abrogated the continuing violation exception to our jurisdictional
requirements . . . and held that “unexhausted claims involving discrete
employment actions are no longer viable.” Id. at 1210.
Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir. 2004).
Ms. Freppon’s additional arguments are also without merit. First, she argues
that her “separation of employment was not a ‘discrete incident’” because “her
Notice of Separation read as if the City was accepting her resignation, even though
no resignation had been tendered.” Aplt. Supp. Opening Br. at 3. We agree with the
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City that this is not a reasonable argument. To begin with, the March 28, 2011
“Notice of Separation” clearly indicated that Ms. Freppon’s employment with the
City had been terminated, as Ms. Freppon was informed that her health insurance
would expire at the close of the month and was specifically instructed to return her
“badge, commission card, [and] uniform.” Aplt. App. at 163. In her opening merits
brief, Ms. Freppon conceded this point, acknowledging that the March 28, 2011,
letter “stated that Freppon’s employment was terminated.” Aplt. Opening Br. at 9.
Further, Ms. Freppon alleged, in her complaint, that she attempted to return to her
employment with the Police Department, but “she was told that her employment was
terminated.” Aplt. App. at 8. Thus, we conclude that Ms. Freppon was on notice, as
of March 28, 2011, or shortly thereafter, that the City had terminated her
employment.
Ms. Freppon next points out that her complaint against the City included a
claim under Oklahoma law that she was wrongfully terminated in violation of
Oklahoma public policy. Specifically, the complaint alleged that she was terminated
in retaliation for exercising her statutory right under Oklahoma law to file for
unemployment benefits. Id. at 10-11. Although Ms. Freppon is correct that this state
law claim is not subject to Title VII’s administrative exhaustion requirements, the
district court declined to exercise supplemental jurisdiction over Ms. Freppon’s state
law claims, and it dismissed them without prejudice. Id. at 359-60, 361. Because
Ms. Freppon has not challenged the district court’s refusal to exercise supplemental
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jurisdiction over her state law claims, we do not need to address them. See Phillips v.
Humble, 587 F.3d 1267, 1274 (10th Cir. 2009).
In sum, we conclude that Ms. Freppon failed to administratively exhaust what
might have been a meritorious wrongful termination claim. Accordingly, we must
remand her termination claim to the district court with instructions to dismiss the
claim for lack of subject matter jurisdiction.
B. Summary Judgment Rulings as to Remaining Title VII Claims
We note that there are no administrative exhaustion issues regarding the
remaining Title VII claims. We review the district court’s decision to grant summary
judgment as to those claims de novo. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th
Cir. 2013). We view the facts in the light most favorable to Ms. Freppon and draw
all reasonable inferences in her favor. Id. “Summary judgment is appropriate only if
the [City] shows that ‘there is no genuine dispute as to any material fact and [it] is
entitled to judgment as a matter of law.’” Hernandez v. Valley View Hosp. Ass’n,
684 F.3d 950, 957 (10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). “A fact is
‘material’ if, under the governing law, it could have an effect on the outcome of the
lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could find in
favor of the nonmoving party on the evidence presented.” E.E.O.C. v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citation omitted).
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1. Pregnancy Discrimination Claim for Denial of Light Work and Forced
FMLA Leave
a. Legal Background
“Title VII of the Civil Rights Act of 1964 prohibits, among other things,
unlawful discrimination on the basis of an individual’s sex.” Horizon/CMS
Healthcare, 220 F.3d at 1190; see also 42 U.S.C. § 2000e-2. “In 1976, the
Supreme Court held that an employer’s disability plan did not violate Title VII
although it excluded pregnancy-related disabilities.” Horizon/CMS Healthcare,
220 F.3d at 1190-91 (citing Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 140-41 (1976)).
“In response to Gilbert, Congress passed the Pregnancy Discrimination Act (PDA).”
Id. at 1191. Pursuant to the PDA, the definitional section of Title VII was amended
by adding the following language: “The terms ‘because of sex’ or ‘on the basis of
sex’ include, but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions . . . .” 42 U.S.C. § 2000e(k). “The section
was added to Title VII to prevent the differential treatment of women in all aspects of
employment based on the condition of pregnancy.” E.E.O.C. v. Ackerman, Hood &
McQueen, Inc., 956 F.2d 944, 947 (10th Cir. 1992) (internal quotation marks
omitted).
“Claims brought under the PDA are analyzed in the same way as other Title
VII claims . . . .” Horizon/CMS Healthcare, 220 F.3d at 1191. To obtain relief under
Title VII, “a plaintiff must show, through either direct or indirect evidence, that the
discrimination complained of was intentional. A plaintiff who lacks direct evidence
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of intentional discrimination may use the burden-shifting framework first articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 . . . (1973), to
demonstrate intentional discrimination.” Horizon/CMS Healthcare, 220 F.3d at 1191(citation omitted). ). Here, Ms. Freppon is not relying on direct evidence of
discrimination, so the burden-shifting framework of McDonnell Douglas applies.
“Under McDonnell Douglas, a plaintiff carries the initial burden of
establishing a prima facie case of discrimination,” but “[t]he burden at this stage is
not onerous.” Tabor, 703 F.3d at 1216 (internal quotation marks omitted). If a
plaintiff states a prima facie case of discrimination, the burden shifts to the employer
to proffer “a legitimate non-discriminatory reason for the adverse employment
action.” Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). If the
employer makes this offering in a pregnancy discrimination case, the plaintiff will
avoid summary judgment only if she shows that her “pregnancy was a determinative
factor in the . . . employment decision, or show[s] the [employer’s] explanation for
its action was merely pretext.” Horizon/CMS Healthcare, 220 F.3d at 1191 (internal
quotation marks omitted). A plaintiff can meet the burden to show pretext in either
of two ways: (1) “by showing that the proffered reason is factually false,” Tabor,
703 F.3d at 1218; or (2) “by showing the defendant’s proffered non-discriminatory
explanations for its actions are so incoherent, weak, inconsistent, or contradictory
that a rational factfinder could conclude [they are] unworthy of belief,” Conroy v.
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Vilsack, 707 F.3d 1163, 1172 (10th Cir. 2013) (alteration in original) (internal
quotation marks omitted).
b. Analysis
On appeal, the City does not contest that Ms. Freppon established a prima
facie case of pregnancy discrimination related to the denial of a light duty assignment
and placement on unpaid FMLA leave. At the second step of the McDonnell
Douglas framework, Ms. Freppon testified at her deposition that Chief Mattheyer
proffered a legitimate non-discriminatory reason for these actions during his
conversation with her on October 18, 2010, namely that “there was no light duty
available.”6 Aplt. App. at 77 (Depo. Page 52). Further, when Ms. Freppon asked
Chief Mattheyer why two male police officers had received light duty in the past, he
said it was because they had suffered on-the-job injuries. Id. We thus conclude that
a jury could reasonably infer from Chief Mattheyer’s response that Ms. Freppon was
denied a light duty assignment because her condition did not result from an
on-the-job injury.
6
We note that Ms. Freppon did not depose Chief Mattheyer or any other
employee of the City, and the City did not proffer affidavits from any of its
employees in support of its motion for summary judgment. Consequently,
Ms. Freppon’s deposition testimony is the sole source of information concerning the
City’s proffered reason for denying her light work and forcing her to take FMLA
leave.
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Moving to the third step of the McDonnell Douglas framework, we agree with
the district court that Ms. Freppon failed to put forth sufficient evidence to show that
the reasons proffered by Chief Mattheyer were pretextual. To begin with, because
Ms. Freppon’s condition did not result from an on-the-job injury, she was not
similarly situated to the two male police officers who were accommodated with light
duty assignments. As a result, the evidence concerning the other officers is
insufficient to establish pretext or disparate treatment. See Crowe v. ADT Sec. Servs.,
Inc., 649 F.3d 1189, 1196-97 (10th Cir. 2011) (concluding that plaintiff failed to
support a finding of pretext where he produced no evidence that similarly situated
employees were treated differently); McGowan v. City of Eufala, 472 F.3d 736, 745
(10th Cir. 2006) (“To show disparate treatment, [plaintiff] must establish she was
similarly situated to [the other employee] in all relevant respects.”).
Ms. Freppon argues that a jury could find that one of the police officers who
received a light duty assignment was not actually injured on-the-job. She testified at
her deposition that his injury occurred when he was walking from his house to his
patrol car to go on duty. But Ms. Freppon stated during her deposition that this was
simply her “understanding” of how the officer was injured, see Aplt. App. at 222-23,
and she has not shown that she has personal knowledge concerning what happened.
Further, in the summary judgment proceedings before the district court, Ms. Freppon
failed to put forth any evidence to support her deposition testimony on this point.
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Thus, her testimony lacked an evidentiary basis and was insufficient to support a
finding of pretext.
Ms. Freppon also testified at her deposition that the City gave modified duties
to two male employees who were not police officers after they sustained
non-work related injuries. According to Ms. Freppon, the two employees who
received modified duty assignments were Todd Johnson, a paramedic with the fire
department, and Russell Holland, a code enforcement officer. However, we agree
with the district court that Ms. Freppon failed to put forth sufficient evidence to show
that she was similarly situated to these employees. In fact, in her summary judgment
response brief, Ms. Freppon failed even to address the similarly situated issue, and
she apparently conducted no fact discovery concerning the question. Consequently,
although Ms. Freppon addresses the issue in her opening brief in this appeal, she
failed to preserve her arguments in the proceedings before the district court, and the
arguments were therefore waived. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d
1136, 1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not
consider arguments raised for the first time on appeal.”). Moreover, Ms. Freppon’s
appellate arguments concerning Mr. Johnson and Mr. Holland and the similarly
situated issue are conclusory and unpersuasive.
Next, we agree with the district court that Ms. Freppon’s “reliance on Sections
5.6 and 5.10 of the [City’s] Personnel Manual is . . . misplaced. Neither section
provides an employee with the right to light duty work . . . .” Aplt. App. at 354.
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We also conclude that the district court correctly determined that “the remarks
and behavior of Lt. Simon [in denying Ms. Freppon’s request to go to the Police
Department’s firing range and yelling at her and using obscenities on another
occasion], while perhaps inappropriate, are insufficient to support [her] disparate
treatment claim.” Id. Most importantly, as the district court found, “[Ms. Freppon]
did not offer evidence of any link between Simon and the City’s refusal to allow
[her] to have a modified work assignment.” Id.Finally, we note that after Chief Mattheyer denied Ms. Freppon’s request for a
light duty assignment, the City proffered an additional reason to justify its denial of
her request. As set forth above, the additional reason proffered in a letter from the
City’s attorney dated November 19, 2010, was that the City had decided to
discontinue its prior policy of allowing light work for police officers who were
injured on-the-job, thus eliminating the availability of light work for all police
officers regardless of whether an officer had sustained a work-related or
non-work-related injury. See Aplt. App. at 161. According to Ms. Freppon, this
alleged policy change was a post hoc rationalization by the City indicative of pretext.
But the general rule in this circuit is that Ms. Freppon must put forth evidence
showing that each of the City’s proffered reasons is pretextual. See Jaramillo v.
Colo. Judicial Dep’t, 427 F.3d 1303, 1309-10 (10th Cir. 2005) (per curiam). As
explained above, we agree with the district court that Ms. Freppon presented
insufficient evidence to show that the initial reasons proffered by Chief Mattheyer
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were pretextual, and Ms. Freppon has not argued that she meets any of the exceptions
to the general rule set forth in Jaramillo. See id. at 1310 (discussing five exceptions
to general rule that an employee must proffer evidence showing that each of the
employer’s justifications were pretextual).
But even leaving aside the general rule, Ms. Freppon’s pretext arguments
related to the November 19, 2010, letter are without merit. Simply put, she was not
entitled to a light duty assignment either for the reasons proffered by Chief Mattheyer
or for the reasons proffered by the City’s attorney in the November 2010 letter.
Therefore, we do not see any inconsistencies or contradictions from which a jury
could infer that the alleged policy change was unworthy of belief and thus a pretext
for discrimination.
Accordingly, we must affirm the grant of summary judgment as to
Ms. Freppon’s pregnancy discrimination claim for the denial of light work and forced
FMLA leave.
2. Retaliation Claim
To establish a prima facie case of retaliation under Title VII, a plaintiff must
show “(1) that he engaged in protected opposition to discrimination, (2) that a
reasonable person would have found the challenged action materially adverse, and
(3) that a causal connection existed between the protected activity and the materially
adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,
1202 (10th Cir. 2006). An action is materially adverse if it “might have dissuaded a
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reasonable worker from making or supporting a charge of discrimination.” Id. at
1202 n.2 (internal quotation marks omitted).
In both her complaint and her response to the City’s motion for summary
judgment, Ms. Freppon limited her Title VII retaliation claim to the City’s actions of
denying her access to the gun range on one occasion and forcing her to take unpaid
FMLA leave. See Aplt. App. at 10, 193-96. The district court concluded that neither
of these actions was materially adverse, and that the second element of
Ms. Freppon’s prima facie case therefore failed. See Aplt. App. at 357-59. Although
we agree with this conclusion as it pertains to the denial of access to the gun range on
one occasion, the City’s conduct in forcing Ms. Freppon to take twelve weeks of
unpaid FMLA leave is an action that a reasonable person would find to be materially
adverse. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 73 (2006)
(holding that “the jury’s conclusion that the 37-day suspension without pay was
materially adverse was a reasonable one”).
Nonetheless, because Ms. Freppon failed in her opening brief to challenge the
district court’s rulings regarding the second element of her prima facie case, we
affirm the entry of summary judgment in favor of the City on Ms. Freppon’s
retaliation claim. See LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 n.10
(10th Cir. 2004) (concluding that appellant waived its right to appeal rulings of
district court that it did not substantively address in its opening brief); Adler v.
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Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived . . . .”).
III. CONCLUSION
We (1) remand Ms. Freppon’s termination claim to the district court with
instructions to dismiss the claim for lack of subject matter jurisdiction, (2) affirm the
grant of summary judgment as to Ms. Freppon’s pregnancy discrimination claim
for the denial of light work and forced FMLA leave, and (3) affirm the grant of
summary judgment as to Ms. Freppon’s retaliation claim.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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