Bird v. West Valley City , 832 F.3d 1188 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 8, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
KAREN BIRD,
Plaintiff - Appellant,
v. No. 15-4024
WEST VALLEY CITY, a political
subdivision of the State of Utah; KELLY
DAVIS, in his official and individual
capacities,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:12-CV-00903-PMW)
_________________________________
April L. Hollingsworth, Hollingsworth Law Office, Salt Lake City, Utah (Ashley F.
Leonard, with her on the briefs), Hollingsworth Law Office, LLC, Salt Lake City, Utah,
for Plaintiff-Appellant.
Stanley J. Preston (Bryan M. Scott, and Brandon T. Crowther, with him on the brief),
Preston & Scott, Salt Lake City, Utah, for Defendant-Appellee.
_________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
BALDOCK, Circuit Judge.
_________________________________
In 2011, city officials of West Valley City, Utah, terminated Plaintiff Karen
Bird from her position as manager of the city’s Animal Shelter. She now brings
various claims under Title VII, 42 U.S.C. § 1983, and Utah contract law against West
Valley City and Kelly Davis, her immediate supervisor at the Animal Shelter.
According to Plaintiff, both her termination and Mr. Davis’s behavior during her time
at the Animal Shelter were unlawful. The district court, with a magistrate judge
presiding by consent of the parties, granted summary judgment to Defendants on all
counts. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse
in part for the following reasons.
I. BACKGROUND
The following facts are either undisputed or taken in the light most favorable
to Plaintiff. Plaintiff gained employment with Defendant West Valley City at its
Animal Shelter in 2001 and worked there until city officials fired her in November
2011. Defendant Kelly Davis, the Director of Operations for West Valley City’s
Animal Services Division, promoted Plaintiff to manager of the Animal Shelter the
year after she began working for the city. Mr. Davis directly supervised Plaintiff
during her entire duration at the Animal Shelter.
During the latter half of Plaintiff’s employment, the environment of the
Animal Shelter was toxic. For a variety of reasons not relevant to this appeal, many
different employees habitually provoked needless arguments, engaged in vicious
confrontations, and hurled passive-aggressive remarks toward one another. The
Animal Shelter, in other words, effectively functioned as a real-life soap opera. For
this very reason, employees constantly complained to the West Valley City Human
Resources Department about one another, and employee turnover at the Animal
2
Shelter was quite common.
Plaintiff was one of the biggest contributors to this tumultuous environment.
For instance, Shirlayne George, who worked for West Valley City for nearly two
decades as its Human Resources Manager, investigated the Animal Shelter in 2005
and quoted employees as making the following comments about Plaintiff:
 “We are all afraid to express an opinion or complain about something or
make suggestions because if Karen does not like it we all pay. We just quit
bringing issues up to keep peace.”
 “[Karen] is degrading in her talk.”
 “Nobody dares complain about anything. If Karen is in a bad mood we all
pay.”
 “I have seen Karen stomp her feet and clench her fist[s] when she gets mad
to the point that her face gets all red. Like a 10 year old.”
 “Everyone is scared of her. When she is in a bad mood you want to run and
hide.”
George Notes from 2005 Investigation of Animal Shelter 3–4.1
1
This evidence is arguably hearsay, as is much of the other evidence in this
case. Nonetheless, neither party objected in the district court to the admission of any
evidence on the basis of hearsay, nor have they done so in this Court. In fact, both
parties often rely on the same exact hearsay to make their arguments. Given the lack
of any objections, we consider all relevant evidence in the record and do not
disregard any evidence sua sponte. See Talavera ex rel. Gonzalez v. Wiley, 725 F.3d
1262, 1267 (10th Cir. 2013) (considering evidence at the summary judgment stage
that was arguably hearsay because there was “no reason to depart from the general
rule that an evidentiary objection not raised in the district court is waived on
appeal”); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007) (“Under
our precedents, we are constrained to disregard . . . hearsay on summary judgment
when, as here, there is a proper objection to its use and the proponent of the
testimony can direct us to no applicable exception to the hearsay rule.” (emphasis
added)); Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to
3
But Plaintiff was not the only culprit. Employees also frequently complained
about Mr. Davis. Many of these employees, including Plaintiff, were female.
Ms. George, for example, investigated Mr. Davis in October 2009. According to her
investigation notes, female employees made the following comments about
Mr. Davis:
 Mr. Davis was “always yelling, bullying, and slamming,” led one meeting
that “was so bad, all but [two] people left crying,” and “has told the girls
they think too much, they worry about their feelings too much.”
 Mr. Davis “often slam[med] his fists on the chair or table” and
“recognize[d] the guys but not the girls.”
 Mr. Davis got so angry with one employee that he “stood up and got in her
face” and came “so close [to her that] she thought he might hit her.” She
was so traumatized by the experience that she is “having nightmares and is
seeing a therapist who has recommended that she see a crisis counselor.”
 Plaintiff herself stated that Mr. Davis “is a 100% bully in the way he treats
others,” “treats women different than men because women complain more,”
and “thinks that some of the men don’t work as hard but never get in
trouble for it.”
George Notes from 2009 Investigation of Davis 1–3, 5.
All in all, at least nine women (including Plaintiff) complained to West Valley
City about how Mr. Davis had treated them during their time at the Animal Shelter.
Plaintiff testified during her deposition that many of these employees had told her at
one point or another that Mr. Davis “just treats them awful,” “belittles them,” and “is
demeaning.” Bird Dep. 217:18–19. Further, most of the women who complained
_____________________________
support or dispute a fact cannot be presented in a form that would be admissible in
evidence.” (emphasis added)).
4
about Mr. Davis either were fired from their positions at the Animal Shelter after
they complained about Mr. Davis or voluntarily left to avoid further mistreatment.
Ms. George herself was not exempt from Mr. Davis’s treatment. She had her
own difficulties with him and testified that she did not like him or his management
style. She further noted that she had a tough time communicating and working with
him because “it was hard for him, because of his personality, to take counsel from a
woman.” George Dep. 61:17–18. And as a result of the 2009 investigation into
Mr. Davis, Ms. George concluded that Mr. Davis had a “serious anger management
issue” that “interfer[ed] with his ability to be an effective manager.” George Notes
from 2009 Investigation of Davis at 7. Neither Ms. George nor any other West
Valley City official, however, formally disciplined Mr. Davis for any of his conduct.
The only remedial measure taken was that Layne Morris, the Community
Preservation Department Director and Mr. Davis’s direct supervisor, frequently
counseled Mr. Davis about how to be a more effective manager.
But Ms. George also stated that she “watched how things were working at the
shelter” and felt that a lot of the complaining was “just backbiting.” George Dep.
35:17–18. She also believed that “it might have been harder for the women to
understand [Mr. Davis’s] management style” since he formerly had been a police
officer, presumably implying that he was accustomed to working in a more gruff and
aggressive environment. Id. at 45:3–4. In any case, she testified that “probably
almost every employee of the shelter” had complained to her about Mr. Davis, and
“[t]he complaints were the same across the board for men and women.” Id. at 27:22–23,
5
56:21–22.
As if Plaintiff’s and Mr. Davis’s managerial styles were not bad enough on
their own, they came to hate each other after they had a disagreement in 2009. The
resulting power struggle between the two heavily affected employee morale—one
employee even referred to their relationship as “the little war.” George Typed Notes
from 2011 Investigation of Animal Shelter 1–2. And over the next two years their
mutual animosity crescendoed to such a point that Mr. Morris testified Plaintiff
“could not stand to be in the same room with [Mr. Davis],” “couldn’t look him in the
eye,” and “refused to answer his questions.” Morris Dep. 76:10–12.
Incidentally, in October 2011—during the high point of the feud between
Plaintiff and Mr. Davis—the Salt Lake Tribune published an article about a cat that
had survived two euthanization attempts in the Animal Shelter’s gas chamber. The
backlash was immediate: upset citizens flooded the Animal Shelter with complaints
about the way it handled and treated animals. A little over a week after this article
appeared, the Animal Shelter received news that further negative press was on the
way. A reporter called a West Valley City official and informed the official that he
(the reporter) had received an anonymous telephone call alleging that Mr. Davis was
ordering a mass execution of animals due to overpopulation. Both Mr. Davis and
Mr. Morris were under the impression that Plaintiff, who was notoriously against
using the gas chamber to euthanize animals and who was one of the few individuals
privy to the meeting discussing the shelter’s overpopulation, was the source of these
leaks. Plaintiff, however, vehemently denied that she was the one who provided this
6
information to the press.
Around the same time as the anonymous phone call to the press, Plaintiff
finally decided she had enough. She emailed Ms. George and stated she could not
“take anymore of Kelly’s belittling, bullying[,] and harassing me.” Bird Email to
George, Oct. 24, 2011. Shortly afterward on November 3, 2011, Plaintiff filed a
formal complaint against Mr. Davis with the Human Resources Department of West
Valley City.2 Although the complaint outlines various instances where Mr. Davis
harassed and demeaned Plaintiff, she did not allege gender discrimination or
otherwise suggest that her gender motivated Mr. Davis’s abuse.
Less than a week after Plaintiff filed this formal complaint, Mr. Davis issued
her two letters of reprimand, both of which concerned Plaintiff’s unauthorized
collection of overtime pay during the previous month. According to West Valley
City’s Policy and Procedures Handbook, letters of reprimand are formal disciplinary
actions that are “placed in the employee’s personnel file in the Human Resource
Office.” Policy & Procedures Handbook § 9.3(C)(II). Plaintiff, however, had never
before been formally disciplined in her decade-long career at the Animal Shelter.
Further, Mr. Davis testified that he generally gave employees informal “correct
deficiency forms” before resorting to the more formal letters of reprimand. Mr.
Davis nonetheless issued the two letters of reprimand to Plaintiff without first giving
her any correct deficiency forms.
2
The complaint itself is dated November 2, 2011, but both parties agree that
Plaintiff actually submitted the complaint to Ms. George on November 3.
7
In response to Plaintiff’s complaint against Mr. Davis, Ms. George undertook
an investigation of the entire Animal Shelter on November 14, 2011. Even though
Plaintiff’s complaint had been against Mr. Davis alone, Ms. George testified that she
“felt like there were so many issues out there between all of the employees that the
investigation that [she] was going to do had to be very broad so that [she] could get a
really good idea of what was going on at the shelter.” George Dep. 60:24–61:3.
The results of this investigation indicated employees had mixed feelings about
Mr. Davis. Although some employees noted that “[h]e is gruff in his speaking,”
“uses inappropriate language when disciplining,” and “belittles Karen in front of
others,” others observed that “his temper has subsided immensely in the last two
years” and that he carefully listens to employees’ suggestions. George Typed Notes
from 2011 Investigation of Animal Shelter 4.
The comments about Plaintiff, on the other hand, were much more negative
and expansive. The following are select excerpts from Ms. George’s notes
summarizing comments that employees made to her about Plaintiff:
 “Karen has belittled me in front of others for the tiniest of mistakes.”
 “She was heard telling her employees not to work with [West Valley City]
officers yet she expected the officers to help her out when she needs it.”
 “One employee mentioned Karen . . . talking bad about [Mr. Davis] in front of
the staff while waiting for him to show up for roll call. It was inappropriate
and uncomfortable.”
 “We were told by [another employee] that animals were not allowed in the
lobby of the shelter. Kelly has tried to reinforce this but Karen . . . take[s]
them in ‘just to piss Kelly off.’”
8
 “I think the communication problem between Kelly and Karen stems from the
fact that she gives him no input, does not support him, and does not make an
attempt to communicate.”
 “Feels that Karen treats the women better than the men.”
 “Karen’s attitude seems to be gender related, the general consensus in the
shelter is that she does not like men and therefore treats them differently.”
Id. at 1–2. Ms. George even observed that there were “more derogatory things said
about Karen than Kelly.” George Dep. 63:13.
Mr. Morris reviewed the results of this investigation and decided that Plaintiff,
not Mr. Davis, needed to be disciplined. As such, he sent Plaintiff a letter on
November 16 informing her that she faced “disciplinary action up to and including
termination of employment” and that she had a right to a pre-disciplinary meeting to
discuss the allegations against her. Morris Letter to Bird 1, Nov. 16, 2011.
According to the letter, these allegations included “insubordination” and “failure to
be courteous or cooperative with the public or fellow employees.”3 Id. at 1–2. After
holding the pre-disciplinary meeting, Mr. Morris determined that these allegations
were justified and decided to terminate Plaintiff’s employment effective November
29, 2011.4 In accordance with that decision, he sent her another letter on December
3
Mr. Morris also informed Plaintiff that she was charged with misconduct,
using official authority to influence or coerce any political action, and neglect or
refusal to perform a duty or responsibility. After holding Plaintiff’s pre-disciplinary
meeting, however, Mr. Morris specifically determined that Plaintiff was not in
violation of any of these other three charges.
4
Mr. Morris filed an affidavit wherein he stated the decision to terminate
Plaintiff was his alone and “Mr. Davis did not terminate Karen Bird, nor did he
participate in the decision to terminate her.” Aff. of Layne Morris 2, May 29, 2014.
9
12 and informed her that “[a]s per the voicemail I left you on November 29, 2011, it
is my decision to terminate your employment with West Valley City due to
insubordination and failure to be courteous or cooperative with the public or fellow
employees.” Morris Letter to Bird 1, Dec. 12, 2011.
Mr. Morris’s decision to discipline and ultimately terminate Plaintiff was not
based on the results of Ms. George’s investigation alone. He testified that he had
watched the relationship between Plaintiff and Mr. Davis deteriorate over the years
and primarily based his decision to fire Plaintiff on his numerous observations of
these two individuals. In fact, Mr. Morris had even considered firing Plaintiff as
early as December 2010—a full year before her actual termination—but testified that
Mr. Davis had stayed his hand to give her a final opportunity to redeem herself. Ms.
George’s latest investigation was simply the final straw.
Specifically, Mr. Morris testified that over the years Plaintiff had frequently
displayed “all kinds of” insubordination toward Mr. Davis, which mainly stemmed
from Plaintiff’s “role as the Shelter Manager and what [Mr. Davis] wanted her to
focus on . . . versus what she wanted to focus on.” Morris Dep. 51:6, 51:10–12. He
described, for instance, how Plaintiff did not agree with or willingly implement the
cleaning schedule that Mr. Davis created for the Animal Shelter because she wanted
to prioritize medicating and caring for the animals. According to Mr. Morris,
_____________________________
Although the parties dispute how much influence Mr. Davis had on Mr. Morris’s
decision, both parties agree that Mr. Morris was the person who actually terminated
Plaintiff.
10
insubordination such as this occurred on an “ongoing basis,” and it eventually
became so pervasive and inappropriate that Plaintiff “simply refused to obey or even
frankly acknowledge the chain of command.” Id. at 50:7–8, 50:25. This
insubordination—that is, Plaintiff’s eventual unwillingness to even work with
Mr. Davis—was the main reason he terminated Plaintiff. But he also testified that
Plaintiff’s failure to be courteous with her fellow employees factored into his
decision. For example, he described various instances in which “multiple people”
had complained Plaintiff had been “very unfair” and “very rude” to a male shelter
technician. Id. at 85:20–23. He also noted that Plaintiff would go “out of her way to
badger and to belittle” other Animal Shelter employees who utilized or wanted to
utilize the euthanasia chamber to put down animals. Id. at 86:4–5. Given Plaintiff’s
nature as a difficult employee to manage, her unwillingness to even engage with
Mr. Davis, and her rude and unprofessional demeanor, Mr. Morris felt that
termination was proper.
Plaintiff unsuccessfully appealed her termination to Ms. George. She next
appealed her termination to Paul Isaac—West Valley City’s Human Resources
Director, Assistant City Manager, and Ms. George’s direct supervisor—who also
upheld the termination. Finally, Plaintiff appealed her termination to the West Valley
City Employee Appeals Board, and after a full hearing on the matter, it too upheld
her termination. Plaintiff never alleged she was a victim of gender discrimination in
any of these appeals.
Plaintiff thereafter filed this lawsuit in the district court against West Valley
11
City and Mr. Davis. She alleged that West Valley City violated Title VII because it
terminated her as a result of gender discrimination and subjected her to a hostile work
environment; that West Valley City violated 42 U.S.C. § 1983 because, in violation
of the Equal Protection Clause, it terminated her as a result of gender discrimination;
and that both West Valley City and Mr. Davis violated 42 U.S.C. § 1983 because
they terminated her in retaliation for engaging in her First Amendment free speech
rights. Her First Amendment retaliation claim centered around the anonymous
statements leaked to the press about the cat that survived the euthanasia attempt and
the planned mass-execution of the animals at the Animal Shelter. Plaintiff still
insisted she did not make these statements. But she also claimed that West Valley
City and Mr. Davis believed she was the source of the leaks. And because she
maintained West Valley City and Mr. Davis may have fired her based on this belief,
she argued the City and Mr. Davis violated her First Amendment rights.
Additionally, Plaintiff brought claims under Utah state law against West
Valley City for breach of contract and breach of the covenant of good faith and fair
dealing. She alleged two distinct bases for these claims. First, she pointed to a
written provision in the Policy and Procedures Handbook, which Plaintiff first
received a copy of in January 2002, entitled “Workplace Violence Policy.” This
provision states that West Valley City will not tolerate workplace violence and
requires the City to respond to and investigate all reports of violence, including
“verbal or physical harassment, verbal or physical threats, assaults or other behavior that
causes others to feel unsafe, (e.g., bullying, sexual harassment).” Policy & Procedures
12
Handbook § 14.2. Second, she argued that Mr. Davis, Ms. George, and Mr. Isaac all
strongly emphasized West Valley City’s unwritten anti-retaliation policy, which
prohibits the City from retaliating against employees who make complaints of any
kind. Plaintiff contended that these written and unwritten policies constituted
implied-in-fact contracts between West Valley City and herself and argued that West
Valley City breached these contractual provisions by allowing Mr. Davis’s abusive
conduct toward her and terminating her for complaining about Mr. Davis. She also
contended that West Valley City breached its covenants of good faith and fair dealing
that inherently existed because of these implied-in-fact contracts.5
The district court granted summary judgment to Defendants on all claims. The
court concluded Plaintiff’s Title VII claims must fail because she could not raise a
genuine issue of material fact that her termination was merely pretext for gender
discrimination or that any abuse she suffered, however severe and unbearable,
resulted because of her gender. The court likewise concluded Plaintiff’s § 1983
claim for gender discrimination must fail because she could not establish that she had
ever been intentionally discriminated against because of her gender. Regarding her
First Amendment retaliation claim under § 1983, the district court concluded Plaintiff
could not establish that she had engaged in any constitutionally protected speech
5
Plaintiff also brought a claim against Mr. Davis in his individual capacity
under 42 U.S.C. § 1983 based on her belief that he deprived her of her procedural and
substantive due process rights when she was terminated. Plaintiff conceded in the
district court, however, “that her . . . pending due process claim should be
dismissed.” Mem. Decision & Order 18, Feb. 3, 2015.
13
since she had continually denied her involvement in any leaks to the press. Because
at the time of the district court’s decision a plaintiff had to first show she engaged in
some constitutionally protected activity before she could recover under a First
Amendment retaliation claim, the district court granted judgment to Defendants as a
matter of law. Finally, the district court denied Plaintiff’s contractual claims based
on a provision in the Policy and Procedures Handbook entitled “Policies and
Procedures Do Not Constitute a Contract.” This provision states:
The information contained in this handbook was prepared to give
employees a better understanding of the responsibilities and obligations of
employment with the City. This handbook contains information about City
policies and procedures. The policies and procedures stated in this
handbook and in other personnel statements or materials issued by the City
do not create a binding contract, agreement, or other obligation or liability
on the part of the City.
Policy & Procedures Handbook § 1.2(A) (emphasis added). The district court
concluded this disclaimer covered both the written Workplace Violence Policy and
unwritten anti-retaliation policy and thus precluded West Valley City from any
contractual liability.
Plaintiff now appeals from the district court’s grant of summary judgment.
II. STANDARD OF REVIEW
“We review de novo a district court’s grant of summary judgment” and “must
view the factual record and make reasonable inferences therefrom in the light most
favorable to the party opposing summary judgment.” Emcasco Ins. Co. v. CE
Design, Ltd., 784 F.3d 1371, 1378 (10th Cir. 2015) (internal quotation marks
omitted). “We will uphold the district court’s grant of summary judgment only if
14
‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). A dispute is
genuine when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” and a fact is material when it “might affect the outcome of the
suit under the governing [substantive] law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Importantly, in opposing a motion for summary judgment, the
non-moving party “cannot rest on ignorance of facts, on speculation, or on
suspicion.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
Regarding Plaintiff’s state-law claims, “we review the district court’s
interpretation and determination of state law de novo.” ClearOne Commc’ns, Inc. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, 494 F.3d 1238, 1243 (10th Cir. 2007). “Where
the state’s highest court has not addressed the issue presented, the federal court must
determine what decision the state court would make if faced with the same facts and
issue.” Id. (internal quotation marks omitted).
III. TITLE VII
Plaintiff brings two claims under Title VII against West Valley City alone.
She first argues that West Valley City terminated her because of her gender,
consistent with a larger pattern and practice in which it terminated women who
complained about Mr. Davis’s behavior or did nothing as these women voluntarily
quit to avoid experiencing further mistreatment from him. She also argues that West
Valley City subjected her to a hostile work environment on the basis of her gender.
We proceed to each of her claims in turn.
15
A. Gender Discrimination
Title VII makes it an “unlawful employment practice for an employer . . . to
discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e–2(a)(1). Plaintiff acknowledges she has provided only indirect
circumstantial evidence that West Valley City engaged in this prohibited conduct.
We thus employ “the three-part burden-shifting framework” from McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), to determine whether West
Valley City terminated her because of her sex.6 Etsitty v. Utah Transit Auth., 502
F.3d 1215, 1220 (10th Cir. 2007); see Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.
2005). Under this framework, Plaintiff must first establish a prima facie case
showing that West Valley City terminated her because of her gender. Etsitty, 502
F.3d at 1220. The burden of production then shifts to West Valley City “to articulate
a legitimate, nondiscriminatory reason for the adverse action.” EEOC v. PVNF,
L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). Finally, if West Valley City satisfies this
burden, “then summary judgment is warranted unless [Plaintiff] can show there is a
genuine issue of material fact as to whether the proffered reasons are pretextual.”
6
Plaintiff does not argue on appeal, nor did she argue in the district court, that
West Valley City officials had “mixed motives” when firing her, and she thus does
not contend that illegal gender discrimination “played [only] a ‘motivating part’ in
the employment decision.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1225 (10th
Cir. 2008) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989),
superseded in part by 42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(2)(B)). For this reason,
we utilize the McDonnell Douglas burden-shifting framework alone in analyzing her
attempt to prove illegal gender discrimination. See id. (explaining that courts do not
employ the McDonnell Douglas framework when analyzing mixed-motives claims).
16
Plotke, 405 F.3d at 1099.
A plaintiff must make only a “de minimis showing” to establish a prima facie
case of gender discrimination under the McDonnell Douglas framework. Id. at 1102.
Generally, this standard is flexible, and “the articulation of a plaintiff’s prima facie
case may well vary, depending on the context of the claim and the nature of the
adverse employment action alleged.” Id. But a common element critical to all prima
facie cases is that the plaintiff must demonstrate that “the adverse employment action
occurred ‘under circumstances which give rise to an inference of unlawful
discrimination.’” Id. at 1100 (quoting Kendrick v. Penske Transp. Servs., Inc., 220
F.3d 1220, 1227 (10th Cir. 2000)).
Plaintiff does not suggest that the circumstances giving rise to an inference of
gender discrimination stem from any instance where Mr. Davis—or anyone else
employed by West Valley City, for that matter—made a specific gender-based
remark or took a specific gender-based action toward her. Instead, she alleges West
Valley City had a “pattern and practice” of discriminating against female employees
by ignoring female employees’ complaints against a male employee, i.e., Mr. Davis;
allowing Mr. Davis to continue acting in an abusive and demeaning manner toward
his female employees; and terminating the women who complained about Mr. Davis
or forcing them to quit. Because she was fired within a month after complaining
about Mr. Davis and was put under investigation herself as a result of this complaint,
she claims the circumstances suggest West Valley City acted pursuant to this pattern
and therefore give rise to an inference of unlawful discrimination.
17
We assume without deciding that Plaintiff can establish that West Valley City
engaged in this pattern and practice she describes. And given that “[t]he burden of
establishing a prima facie case of disparate treatment is not onerous,” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), we likewise assume without
deciding that Plaintiff, based on this pattern and practice, has established a prima
facie case showing that she was terminated because she is a woman.
Further, Layne Morris, the sole individual responsible for firing Plaintiff,
articulated in his deposition at least two legitimate, nondiscriminatory reasons for her
termination. See Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1363 (10th Cir. 1997)
(“This burden is exceedingly light; the defendant must merely proffer non-gender
based reasons, not prove them.” (internal quotation marks omitted)). He testified that
the main reason he terminated Plaintiff was because of the insubordination she
displayed to Kelly Davis. He also felt her termination was justified based on her
failure to be courteous and cooperative with fellow employees. Both of these reasons
are listed as grounds for discipline in West Valley City’s Policies and Procedures
Handbook.
The burden thus shifts back to Plaintiff to establish a genuine issue of material
fact that these reasons were pretextual. In so doing, Plaintiff must show that West
Valley City’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. Vilsack, 707 F.3d 1163, 1172
(10th Cir. 2013) (alteration in original) (internal quotation marks omitted). But in
18
assessing West Valley City’s explanations for Plaintiff’s termination, “we examine
the facts as they appear to the person making the decision.” Id. at 1174 (emphasis in
original) (internal quotation marks omitted). “[W]e do not ask whether the
employer’s proffered reasons were wise, fair or correct; we ask only whether [the
employer] honestly believed those reasons and acted in good faith upon those
beliefs.” Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir.
2013) (second alteration in original) (internal quotation marks omitted).
Plaintiff uses several different arguments in her attempt to establish that a
genuine dispute of material fact exists as to whether West Valley City’s reasons for
terminating her—insubordination and failure to be courteous or cooperative with
fellow employees—were pretextual. First, she contends that the reasons Mr. Morris
outlined in his deposition for terminating Plaintiff differ from the reasons he outlined
at the time of her termination. Indeed, if Plaintiff were correct, that would allow her
Title VII gender discrimination claim to survive summary judgment. We have previously
held that a genuine factual dispute regarding pretext can arise when an employer changes
its explanation for an employment decision “after significant legal proceedings have
occurred.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005). But
in his deposition Mr. Morris did not change the reasons he gave for terminating Plaintiff.
He has steadfastly affirmed from the time of Plaintiff’s termination that he fired her
because of her insubordination toward Mr. Davis and discourtesy toward her fellow
employees. Instead, in his testimony, Mr. Morris merely offered specific examples of this
insubordination and discourtesy.
19
For instance, in the November 16, 2011 memorandum that Mr. Morris sent to
Plaintiff informing her of her right to a pre-disciplinary meeting—the first instance in the
record where Mr. Morris notified Plaintiff she faced “disciplinary action up to and
including termination of employment”—Mr. Morris told Plaintiff that she faced charges
of both insubordination and failure to be courteous or cooperative with the public or
fellow employees. In support of these allegations, he told Plaintiff that the charge of
insubordination arose because she had “consistently . . . argu[ed] with [Mr. Davis] over
various issues in front of [her] staff” and that the charge of failure to be courteous or
cooperative with the public or fellow employees arose because the City had “received
several complaints about [her] aggressive and abrasive behavior toward [her]
employees.” Morris Letter to Bird 2, Nov. 16, 2011. Of course, none of these remarks
contradict anything that Mr. Morris testified about in his deposition. Rather, they
coincide perfectly with his testimony, where Mr. Morris simply laid out different
instances—such as Plaintiff’s willful failure to implement the cleaning schedule and her
tendency to demean employees who utilized the euthanasia chamber to put down
animals—where Plaintiff had been both insubordinate and discourteous.
Further, in the December 12, 2011 termination letter that Mr. Morris sent to
Plaintiff, Mr. Morris informed Plaintiff that he was choosing to terminate her
employment “due to insubordination and failure to be courteous or cooperative with the
public or fellow employees.” Again, he mentioned these same reasons in Plaintiff’s
appeal before the West Valley City Employee Appeals Board. And when asked during
that same appeal to give a specific example of Mr. Davis’s and Plaintiff’s interactions,
20
Mr. Morris stated, “You could have them in the same room and . . . Karen would be
unable to even look at Kelly or respond to anything that he said.” Tr. of Employee
Appeals Board Hr’g 328:13–14. This example is the exact same example that he gave
during his deposition. Once more, the congruence between Mr. Morris’s pre-litigation
statements and post-litigation statements is apparent.
And contrary to Plaintiff’s arguments, no other West Valley City official or entity
involved in Plaintiff’s termination process changed his or her reasons for her termination
or otherwise “offer[ed] inconsistent reasons for [his or her] decision.” Conroy, 707 F.3d
at 1174. Ms. George, Mr. Isaac, and the West Valley City Employee Appeals Board all
determined in their respective appeals that Plaintiff’s termination was justified because
she was insubordinate and discourteous to her fellow employees.7 Granted, they
sometimes gave unique examples of Plaintiff’s insubordination and discourtesy—Ms.
George, for instance, referred to “one particular instance [where Plaintiff] did not provide
Kelly Davis a supply list in the form that he had requested be used for such a list,”
George Letter to Bird 2, Dec. 15, 2011—but these differing examples are hardly
surprising. As Mr. Morris stated in the November 16 letter:
While there are specific allegations that led to this potential termination
from employment, it is based on your numerous incidents [and]
problems . . . over the past several years. You have a history of
7
Unlike Mr. Morris, all three of these individuals or entities also determined
that Plaintiff violated a third charge: neglect or refusal to perform a duty or
responsibility. Plaintiff does not allege on appeal that these additional
determinations are evidence of pretext in any way, so we do not address why Ms.
George, Mr. Isaac, or the Employee Appeals Board believed Plaintiff violated this
third charge.
21
insubordination and being subversive to your immediate supervisor at the
Animal Shelter. Your record as a whole indicates that you may not possess
the necessary demeanor to perform the functions of the West Valley City
Animal Shelter Manager in a competent manner.
Morris Memorandum to Bird 2, Nov. 16, 2011 (emphases added). We agree that the
record overwhelmingly describes numerous examples of Plaintiff’s insubordination to
Mr. Davis and general discourtesy to her fellow employees. As far back as 2005 and up
until the time of her termination, multiple different employees complained about the way
Plaintiff treated others and acted at the Animal Shelter. They claimed that she was
“degrading in her talk,” “belittled [employees] in front of others for the tiniest of
mistakes,” and “treat[ed] the women better than the men.” Mr. Morris himself even
testified that Plaintiff would go “out of her way to badger and to belittle” other
Animal Shelter employees. But more importantly, Plaintiff would intentionally try to
“piss [Mr. Davis] off,” constantly battled his demands—whether it was implementing a
cleaning schedule, providing him lists in the form he wanted them, not bringing animals
into the Animal Shelter’s lobby, not taking overtime pay without his prior approval, or
any one of the numerous other examples in the record—and eventually refused to even
engage with him. Although any one of these individual instances in its own right may
not have warranted any formal disciplinary action, their cumulative effect forces us to
conclude (and would force any reasonable jury to conclude) that Plaintiff had a habit of
being both insubordinate and discourteous. That West Valley City officials described
different examples at different times of Plaintiff’s repeated workplace failures is thus not
only inconsequential for Title VII purposes but also to be expected given the extent of
22
Plaintiff’s inappropriate work-place behavior. As such, Plaintiff has failed to
demonstrate pretext based on her contention that West Valley City officials provided
varying and contradictory reasons for her termination.
Plaintiff also attempts to point out “disturbing procedural irregularities” in the
process that was used to discipline her in her effort to establish that West Valley
City’s alleged reasons for firing her were pretextual. Such irregularities can be
sufficient to call into question the employer’s honesty and good faith in making the
termination decision and, consequently, establish pretext. See, e.g., Colon-Sanchez v.
Marsh, 733 F.2d 78, 81 (10th Cir. 1984). Specifically, Plaintiff notes that she
received two letters of reprimand from Mr. Davis within a week after she filed her
formal complaint against him but that, in so doing, nobody at West Valley City
followed the usual process of first giving her a correct deficiency form before
resorting to the letters of reprimand. She maintains that this circumstance alone
shows there is a genuine dispute over whether West Valley City’s reasons for
terminating her were pretextual.
Plaintiff, however, does not argue or otherwise establish how these letters of
reprimand, which concerned Plaintiff’s unauthorized collection of overtime pay, were
part of her termination process. This lack of analysis dooms her procedural-
irregularity argument. Even assuming it was atypical for an employee to receive
letters of reprimand without having first received a correct deficiency form,
Plaintiff’s failure to develop the connection between this anomaly and her
termination, which was a separate disciplinary proceeding, means that this alleged
23
procedural irregularity is insufficient to establish pretext.
Finally, Plaintiff bemoans that she was investigated alongside Mr. Davis
despite being the person who filed the complaint and that she, not Mr. Davis, was the
one who was ultimately disciplined within a month after filing that complaint. She
suggests that this creates “a dispute of fact over motivation that precludes summary
judgment.” Appellant’s Br. 46 (citing Bertsch v. Overstock.com, 684 F.3d 1023,
1029 (10th Cir. 2012)). Indeed, we have held that the “timing and sequence of events
leading up to [an employee’s] firing are . . . evidence of pretext.” Plotke, 405 F.3d at
1105.
But the sequence of events leading up to Plaintiff’s termination must be
viewed in light of the extensive and well-documented issues in the record between
Plaintiff and Mr. Davis. They had been at each other’s throats for two straight years
and treated one another unprofessionally and often viciously. For this reason,
Ms. George unsurprisingly investigated both Plaintiff and Mr. Davis. She had to
discover whether Plaintiff’s complaint had merit or whether it was just another ploy
that was meant to harm Mr. Davis. Similarly, Mr. Morris’s decision to terminate
Plaintiff was based on his numerous observations of Plaintiff and Mr. Davis. And
when he received the results of Ms. George’s investigation that indicated there were
“more derogatory things said about Karen than Kelly,” he determined, in accordance
with his desire from the previous year, to terminate Plaintiff. No reasonable juror,
when looking at the factual record as a whole, could conclude from the sequence of
events surrounding Plaintiff’s investigation and termination that West Valley City’s
24
proffered explanations for firing her were pretextual.
Further, even though the timing leading up to an employee’s termination is
evidence of pretext, Plotke, 405 F.3d at 1105, it is not sufficient standing alone to
establish pretext. Our cases regarding Title VII retaliation claims make this point
clear. See Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1293 (10th Cir. 2013)
(“[C]lose temporal proximity can support a finding of pretext only in combination
with other evidence of pretext.”); Proctor v. United Parcel Serv., 502 F.3d 1200,
1213 (10th Cir. 2007) (“Although we may consider evidence of temporal
proximity . . . in analyzing pretext, temporal proximity alone is insufficient to raise a
genuine issue of material fact concerning pretext.” (citations omitted)); Annett v.
Univ. of Kan., 371 F.3d 1233, 1240 (10th Cir. 2004) (“[W]e have stated that close
temporal proximity is a factor in showing pretext, yet is not alone sufficient to defeat
summary judgment.”). And if temporal proximity alone cannot establish pretext for
Title VII retaliation claims—the whole point of which are to prevent “employer
retaliation on account of an employee’s having opposed, complained of, or sought
remedies for, unlawful workplace discrimination,” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2522 (2013)—then surely it cannot suffice for Title VII
gender discrimination claims. Indeed, in a retaliation claim, the temporal proximity
between an employee’s complaint of unlawful discrimination and his or her discharge
is at least theoretically useful to show that the employer’s reasons for terminating the
employee are unworthy of belief. But in a gender discrimination claim, this same
temporal proximity, although still useful, is certainly not more useful to raise a
25
genuine factual dispute about the veracity of the employer’s stated reasons. This is
especially true where, as here, the employee did not allege in the complaint she made
to her employer that she had been discriminated against because of her gender.
In the end, therefore, Plaintiff’s termination less than one month after she
complained about Mr. Davis is relevant to her attempt to show that West Valley
City’s reasons for firing her were pretextual, but it is not sufficient to establish that
pretext. And because Plaintiff has not otherwise made any convincing arguments
that would lead us to believe West Valley City’s explanations for terminating her
“are so incoherent, weak, inconsistent, or contradictory that a rational factfinder
could conclude [they are] unworthy of belief,” Conroy, 707 F.3d at 1172, we must
conclude that West Valley City discharged Plaintiff because she was a difficult
employee to manage, treated her direct supervisor (Mr. Davis) with disdain, refused to
follow his directions, and sowed discord and anxiety at the Animal Shelter. We affirm
the district court’s grant of summary judgment to Defendants on Plaintiff’s Title VII
gender discrimination claim.
B. Hostile Work Environment
Plaintiff’s inability to establish that West Valley City terminated her because
of her gender does not necessarily mean that Mr. Davis’s alleged conduct at the
Animal Shelter was somehow justified. Title VII also makes it “an unlawful
employment practice for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The Supreme Court has
26
held that this language “is not limited to ‘economic’ or ‘tangible’ discrimination,”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), but instead is broad
enough to protect individuals from “work[ing] in a discriminatorily hostile or abusive
environment,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
To prevail on her hostile work environment claim under Title VII, Plaintiff
must “show that a rational jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working
environment.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007).
“But severity and pervasiveness are not enough.” Chavez v. New Mexico, 397 F.3d
826, 833 (10th Cir. 2005). Plaintiff must demonstrate “severe and pervasive
harassment based on gender.” Id. (emphasis added).
Taking the evidence in the light most favorable to Plaintiff, there exists a
genuine factual dispute on the question whether Mr. Davis’s conduct was so severe
and pervasive to create an abusive working environment. Many different employees
complained over the years of his aggressive and bullying behavior, and if this
behavior—e.g., leading meetings where all but two people left crying, slamming his
fists on chairs and tables, and treating employees so poorly that they had to see
therapists—is true, then Plaintiff may be able to prove to a jury that Mr. Davis
bullied her or others in such a way that it changed the conditions of her employment
at the Animal Shelter. See O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098
(10th Cir. 1999) (holding that the severity and pervasiveness evaluation “is
27
particularly unsuited for summary judgment” because it “is quintessentially a
question of fact”).
But can Plaintiff raise a genuine factual issue that Mr. Davis’s abuse was
gender-based? On its face, most of Mr. Davis’s alleged conduct, although
despicable, was gender-neutral. This circumstance alone would seem to end the
inquiry given that “a few isolated incidents” of gender-based abuse generally cannot
establish a Title VII hostile work environment claim. Chavez, 397 F.3d at 832
(internal quotation marks omitted). Nevertheless, it merely pins her claim against the
ropes instead of delivering the knockout punch. We have held that “[f]acially neutral
abusive conduct can support a finding of gender animus sufficient to sustain a hostile
work environment claim when that conduct is viewed in the context of other, overtly
gender-discriminatory conduct.” O’Shea, 185 F.3d at 1097 (emphasis added); see
also Chavez, 397 F.3d at 833 (“The question then becomes whether [p]laintiffs can
use a substantial amount of arguably gender-neutral harassment to bolster a smaller
amount of gender-based conduct on summary judgment. Our precedents say that
they can.”). As a result,
when a plaintiff introduces evidence of both gender-based and gender-
neutral harassment, and when a jury, viewing the evidence in context,
“reasonably could view all of the allegedly harassing conduct . . . as the
product of sex and gender hostility,” then “it is for the fact finder to
decide whether such an inference should be drawn.”
Chavez, 397 F.3d at 833 (quoting O’Shea, 185 F.3d at 1097, 1102).
Plaintiff directs us to only the following evidence to establish that Mr. Davis’s
alleged abusive conduct was based on gender: (1) Ms. George testified that “it was
28
hard for [Mr. Davis], because of his personality, to take counsel from a woman”;
(2) several different female employees complained that Mr. Davis treated women
differently than men (e.g., one employee claimed he “recognize[d] the guys but not
the girls,” and Plaintiff herself claimed “that some of the men don’t work as hard but
never get in trouble for it”); (3) most of the women who complained about Mr. Davis
noted his furious temper, whereas the men who complained about Mr. Davis tended
to downplay his behavior and disposition; and (4) one female employee alleged that
Mr. Davis “has told the girls they think too much, they worry about their feelings too
much.”8 Taken individually and together, this evidence is insufficient to sustain a
hostile work environment claim.
The first three pieces of evidence, although arguably overtly gender-based,
offer only vague and conclusory generalizations rather than specific examples of
gender-based conduct. In particular, the first example attempts to explain Ms.
George’s perceptions of Mr. Davis’s perceptions of women who advised him. It
describes no specific instance in which Mr. Davis accepted or rejected counsel from
anyone, let alone in a gender-differential manner. Second, the claim that Mr. Davis
“recognize[d] the guys but not the girls” lacks any context or specifics. Similarly,
Plaintiff’s assertion that “some of the men don’t work as hard but never get in trouble
8
To the extent other evidence exists in the record that could show Mr. Davis’s
alleged abuse may have been based on gender, Plaintiff does not raise or otherwise
use it in her attempt to prove her hostile work environment claim. Because we are
not in the business of creating arguments for the parties before us when they have not
done so themselves, we do not consider any of this other evidence when analyzing
whether Mr. Davis’s alleged abuse stemmed from gender animosity.
29
for it” provides no indication as to who got in trouble, for what, or in what way. The
third piece of evidence—that women complainants noted Mr. Davis’s temper while
men downplayed it—is vague and lacks any examples of how he may have treated
men and women differently. As to each of the foregoing, such conclusory statements
unsupported by any examples are insufficient to create a general issue of fact. See In
re Grandote Country Club Co., 252 F.3d 1146, 1149–50 (10th Cir. 2001)
(“Unsupported conclusory allegations . . . do not create a genuine issue of
fact. . . . To withstand summary judgment, the nonmoving party must come forward
with specific facts showing that there is a genuine issue for trial.” (citations and
internal quotation marks omitted)).
The fourth piece of evidence—that Mr. Davis “has told the girls they think too
much” and “worry about their feelings too much”—is undeniably overtly gender
discriminatory. But even assuming that Mr. Davis made this statement multiple times (as
the phrase “has told the girls” could be understood to suggest), Plaintiff offers no
evidence she knew Mr. Davis made such a statement until she conducted discovery
for this action. This is problematic: “[I]f the victim does not subjectively perceive
the environment to be abusive, the conduct has not actually altered the conditions of
the victim’s employment, and there is no Title VII violation.” Harris, 510 U.S. at
21–22; see also Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008)
(“[W]e consider the work atmosphere both objectively and subjectively, looking at
all the circumstances from the perspective of a reasonable person in the plaintiff’s
position.” (internal quotation marks omitted)). Without evidence indicating Plaintiff
30
was aware of Mr. Davis’s statements before the litigation, she cannot use them to
demonstrate her subjective perception of an abusive environment based on gender.
Plaintiff’s attempt to prove Mr. Davis’s gender-based hostility therefore fails.
We affirm the district court’s grant of summary judgment to Defendants on
Plaintiff’s Title VII hostile work environment claim.
IV. 42 U.S.C. § 1983 — EQUAL PROTECTION
Plaintiff also brings a claim under 42 U.S.C. § 1983 against West Valley City
for violating the Equal Protection Clause of the Fourteenth Amendment. Like her
Title VII gender discrimination claim, she argues that West Valley City had a
discriminatory policy or custom of ignoring female employees’ complaints against
Mr. Davis, allowing him to continue his abuse, and terminating the women who
complained about him or forcing them to quit. See Notari v. Denver Water Dep’t,
971 F.2d 585, 587 (10th Cir. 1992) (holding that a plaintiff may bring both a § 1983
claim and a Title VII claim “even if the claims arise from the same factual
allegations” “as long as the substantive legal bases for the claims are distinct”). She
alleges West Valley City officials were acting pursuant to this unconstitutional policy
or custom when they ignored her complaints of Mr. Davis’s abuse and subsequently
terminated her. She thus contends West Valley City deprived her of her equal
protection as a woman under the law upon her termination.
Section 1983 mandates that “[every] person who acts under color of state law
to deprive another of constitutional rights shall be liable in a suit for damages.” Moss
v. Kopp, 559 F.3d 1155, 1162 (10th Cir. 2009) (alteration in original) (internal
31
quotation marks omitted). Under this section, a “person” is not limited to a human
being. Rather, “municipalities and other local government units [are] included
among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690 (1978). A local government, however, cannot be held liable under
§ 1983 “solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691
(emphasis in original). Instead, a local government is liable only when “the
unconstitutional actions of an employee were representative of an official policy or
custom of the municipal institution, or were carried out by an official with final
policy making authority with respect to the challenged action.” Seamons v. Snow,
206 F.3d 1021, 1029 (10th Cir. 2000) (emphasis added).
An important caveat to any § 1983 claim is that “the plaintiff must still prove a
violation of [an] underlying constitutional right.” Daniels v. Williams, 474 U.S. 327,
330 (1986). This is because § 1983 “is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those parts of the
United States Constitution and federal statutes that it describes.” Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979). And because Plaintiff is asserting an Equal Protection
claim against West Valley City, this means a specific officer or officers of West
Valley City had to intentionally discriminate against Plaintiff because of her gender
32
before she can attribute any fault to West Valley City as a whole.9 See Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (holding
that “discriminatory intent or purpose is required to show a violation of the Equal
Protection Clause”); Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010)
(noting that purposeful discrimination is “the state of mind required to establish an
equal protection violation”); Lewis v. City of Ft. Collins, 903 F.2d 752, 755 n.1 (10th
Cir. 1990) (“[P]urposeful discrimination is an essential element of an equal
protection violation.”).
But Plaintiff cannot raise a genuine issue of material fact that anybody at the
Animal Shelter intentionally discriminated against her because of her gender. The
only facts she raises in support of an Equal Protection violation are the same facts she
raises in support of her Title VII claims. See Appellant’s Br. 43 (“[Plaintiff] can
show she was subject to gender discrimination under § 1983 for the same
9
Plaintiff disputes this and contends that as long as “the [government] action
was taken with deliberate indifference to its known or obvious consequences,” then a
plaintiff meets the state of mind requirement of a § 1983 claim. Appellant’s Br. 43
(alteration in original) (quoting Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d
726, 759 (10th Cir. 2014)) (internal quotation marks omitted). But the “deliberate
indifference” standard refers only to the level of culpability that is sometimes
required to hold a municipality liable under § 1983. See, e.g., Bd. of Cnty. Comm’rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997); City of Canton v. Harris, 489
U.S. 378, 388 (1989). It does not refer to the state of mind required to prove the
underlying constitutional violation that gives rise to the § 1983 claim against the
municipality. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
In other words, Plaintiff is collapsing two distinct analyses: (1) the state of mind
required to prove the underlying Equal Protection violation, and (2) the level of
culpability required to impose § 1983 liability against West Valley City once she has
established this Equal Protection violation. The former requires intentionality and
cannot be satisfied by deliberate indifference.
33
reasons . . . that [she] was subject to discrimination in violation of Title VII.”). As
we stated in our analyses of her Title VII claims, Plaintiff provides only indirect
circumstantial evidence that West Valley City officials intentionally discriminated
against her on the basis of gender and therefore must resort to the McDonnell
Douglas framework to establish any intentional discrimination. See Notari, 971 F.2d
at 589 (10th Cir. 1992) (explaining that the McDonnell Douglas framework is a
mechanism that, if satisfied, establishes intentional discrimination as the most likely
reason for the challenged employment decision). And indeed, the McDonnell
Douglas framework can also be used to prove intentional discrimination under
§ 1983. English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1007–08 (10th Cir. 2001).
Nonetheless, Plaintiff’s attempt at utilizing McDonnell Douglas will fail under
§ 1983 for the same reason it failed under Title VII: West Valley City’s stated
reasons for firing her—insubordination and failure to be courteous or cooperative
with her fellow employees—were not pretextual. As a consequence, it is unnecessary
for us to decide whether West Valley City engaged in the policy or custom that
Plaintiff describes. Because she cannot establish that she was a victim of intentional
gender discrimination, Plaintiff has no underlying constitutional violation on which
she can rely to impose municipal liability against West Valley City under § 1983.
We thus affirm the district court’s grant of summary judgment in favor of Defendants
on Plaintiff’s § 1983 Equal Protection claim.
V. CONTRACT CLAIMS
Plaintiff next brings claims against West Valley City under Utah law for
34
breach of contract and breach of the covenant of good faith and fair dealing. As in
the district court, she bases these claims on (1) the “Workplace Violence Policy” in
West Valley City’s Policies and Procedures Handbook, and (2) the unwritten anti-
retaliation policy.
The problem Plaintiff faces is that the contractual disclaimer in the Handbook
specifically declares that “[t]he policies and procedures stated in this handbook and in
other personnel statements or materials issued by the City do not create a binding
contract, agreement, or other obligation or liability on the part of the City.” Policy &
Procedures Handbook § 1.2(A) (emphasis added). Indeed, “clear and conspicuous
language disclaiming any contractual liability” in an employee handbook precludes
“the existence of an implied-in-fact contract.” Johnson v. Morton Thiokol, Inc., 818
P.2d 997, 1003 (Utah 1991). Plaintiff attempts to combat this contractual disclaimer
in several ways.
First, Plaintiff contends the disclaimer cannot apply to the Workplace Violence
Policy. In support she cites Cabaness v. Thomas, 232 P.3d 486 (Utah 2010), a case
where the Utah Supreme Court allowed a former employee of a city company to
bring a breach of contract claim against the company for failing to abide by its
workplace policies prohibiting harassment. Id. at 492, 502. The specific policies
stated that the city “will not tolerate verbal or physical conduct by any employee
which harasses, disrupts, or interferes with another’s work performance or which
creates an intimidating, offensive, or hostile environment” and that “[o]ral or written
threats, physical assault, harassment, intentional damage, and every other act or
35
threat of violence by City employees is strictly prohibited.” Id. at 492 (alteration in
original) (internal quotation marks omitted). The company, however, relied on a
contractual disclaimer in its employee manual in an attempt to argue that it could not
have created an implied contract with the employee. This disclaimer mandated that
“[n]o contract exists between Bountiful City and its employees with respect to salary,
salary ranges, movement within salary ranges, or employee benefits.” Id. (alteration
in original) (emphasis added) (internal quotation marks omitted).
The Utah Supreme Court held that the disclaimer mandated a finding of an
implied-in-fact contract between the employee and the company. Id. at 503.
Although the court reaffirmed the general rule that “a clear and conspicuous
disclaimer . . . prevents employee manuals or other like material from being
considered as implied-in-fact contract terms,” the court also noted that “the
disclaimer in this case does not contain broad and conspicuous language disclaiming
any and all contractual liability.” Id. Instead, the disclaimer by its terms only
referred to salaries and benefits. The court held that this limited disclaimer, when
combined with the harassment provisions of the employee manual, evinced the
company’s “intent to voluntarily undertake additional duties to protect its employees
from misconduct by supervisors or other employees” and therefore be bound by the
terms of an implied-in-fact contract. Id. at 504.
Plaintiff analogizes her case to Cabaness because the harassment provisions in
that case are nearly identical to West Valley City’s Workplace Violence Policy. In
her view, this similarity alone mandates that a jury should decide whether an implied-
36
in-fact contract existed between her and West Valley City. But the main crux of the
Cabaness decision rested on the limited disclaimer in the company’s employee
manual. See id. West Valley City’s disclaimer is much broader: it extends to all
“policies and procedures stated in this handbook and in other personnel statements or
materials issued by the City” and thus disclaims as much contractual liability as it
possibly can. And in the absence of a more limited disclaimer, the similarities
between the workplace violence provisions of the two cities mean little.
Consequently, Cabaness precludes us from finding the existence of an implied-in-
fact contract between Plaintiff and West Valley City based on the City’s Workplace
Violence Policy. See id. at 504 n.9 (“If anything, our decision today may cause
employers wishing to avoid contractual liability to draft their employee manuals with
clear and conspicuous disclaimer language.”).
But Plaintiff also claims that even if the disclaimer is applicable to the
Workplace Violence Policy, it does not apply to any unwritten policies, such as the
unwritten anti-retaliation policy. Not so. She bases the existence of such a policy on
statements from Mr. Davis, Ms. George, and Mr. Isaac that stress the strong emphasis
West Valley City placed on anti-retaliation policies and training, but the disclaimer
specifically states that “policies and procedures stated . . . in other personnel
statements” cannot constitute a contract. Further, Plaintiff signed an Employee
Acknowledgement form in 2002 confirming that she received a copy of the
Handbook, and this form reflects the contractual disclaimer in the Handbook. Upon
signing this document, Plaintiff confirmed her understanding that “no verbal or
37
written agreements, understandings, representations, or statements made by my
department head or supervisor may amend the policies outline[d] in this manual or bind
the City to any course of action.” Employee Acknowledgement Form 1. Thus, to
whatever extent West Valley City officials stressed to employees the City’s strong
policy against retaliation, these statements could not bind the City via an implied-in-
fact contract.
Not to be deterred, Plaintiff next contends the disclaimer cannot apply to the
Workplace Violence Policy or the unwritten anti-retaliation policy for another
reason: she argues the disclaimer was not “conspicuous” in November 2011 when she
complained about Mr. Davis and was terminated. In support of this claim, she points
out that “[t]he City has not provided a disclaimer from prior to September 2010, and
there is no evidence [Plaintiff] acknowledged the 2010 disclaimer, or even saw the
document prior to her 2014 deposition.” Appellant’s Br. 60. She therefore suggests
that West Valley City first added the disclaimer in September 2010 and concludes the
disclaimer could not be “conspicuous” a year later “if the City did nothing to make
its employees aware” of this addition. Id.
This argument is tenuous at best. Mr. Isaac, West Valley City’s Human
Resources Director, affirmed under oath that the disclaimer had been in the
Handbook since at least 1994. Further, Plaintiff affirmed in the Employee
Acknowledgment form she signed that “it is [her] responsibility to keep informed” of
any changes that had happened to the Handbook. Employee Acknowledgement Form
1. Thus, even in the unlikely scenario that the disclaimer was not put in the
38
Handbook until September 2010, it was Plaintiff’s duty to be aware of it, and it
would have been in the Handbook for at least a year before she was terminated.
Plaintiff’s belief that the disclaimer was not in the Handbook when she first received
it in 2002 therefore cannot defeat summary judgment.
Finally, Plaintiff argues that even if the disclaimer had always been in the
Handbook and applies to both the Workplace Violence Policy and the unwritten anti-
retaliation policy, “it conflicts with the Employee Acknowledgment [she] signed in
2002.” Appellant’s Br. 61. This supposed “conflict” stems from her perception that
the Employee Acknowledgement form indicates West Valley City was contractually
bound by the policies in the Handbook. Specifically, she claims that since the
Employee Acknowledgment form manifested her own agreement to adhere to the
Handbook policies, it was reasonable for her to believe West Valley City must also
adhere to the policies. She contends this “conflict” alone mandates that her contract
claims should go before a fact-finder because it creates an ambiguity about whether
West Valley City intended to be bound by the Handbook policies.
This argument is equally meritless. “A contractual term or provision is
ambiguous if it is capable of more than one reasonable interpretation because of
uncertain meanings of terms, missing terms, or other facial deficiencies.” Daines v.
Vincent, 190 P.3d 1269, 1275 (Utah 2008) (internal quotation marks omitted). Given
this definition, Plaintiff’s argument is circular from a purely logical perspective: she
is trying to prove the existence of a contract by establishing ambiguities between two
documents, but a contract must already exist before giving rise to any ambiguities.
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See id. And even if we disregard this logical fallacy, her belief that the Employee
Acknowledgement form indicated West Valley City’s intent to be contractually
bound is not reasonable and thus does not give rise to any ambiguity. Surrounding
circumstances cannot create an ambiguity “where the language . . . would not
otherwise permit.” Id. at 1276. Here, the language of the Handbook unequivocally
disclaims any contractual obligations on West Valley City’s behalf, so Plaintiff’s
belief otherwise is groundless. Plaintiff cannot create an ambiguity simply because
the Employee Acknowledgement form made her subjectively believe that West
Valley City was bound.
In conclusion, the contractual disclaimer in the Handbook precludes as a
matter of law any existence of an implied-in-fact contract between Plaintiff and West
Valley City. None of Plaintiff’s arguments to the contrary can alter this outcome.
And because no contract exists, West Valley City could not breach the covenant of
good faith and fair dealing. See Andreini v. Hultgren, 860 P.2d 916, 921 (Utah 1993)
(“[T]o find a breach of the duty of good faith and fair dealing, there must be some
type of preexisting contractual relationship.”). We affirm the district court’s grant of
summary judgment to Defendants on Plaintiff’s contract claims under Utah law.
VI. 42 U.S.C. § 1983 — FIRST AMENDMENT RETALIATION
Finally, Plaintiff brings another claim under 42 U.S.C. § 1983 against both
West Valley City and Mr. Davis based on her belief that Defendants terminated her
in retaliation for engaging in her protected First Amendment right of free speech.
Plaintiff still maintains that she did not make any statements to the press about the
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cat or planned mass-execution at the Animal Shelter, but she asks us to hold that
Defendants violated her First Amendment rights since Defendants allegedly
terminated her based on their belief that she made these statements.
This Court’s traditional analysis teaches that Plaintiff can succeed on her First
Amendment retaliation claim only if she can establish that “(1) she was engaged in
constitutionally protected activity, (2) the defendant’s actions caused her to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in
that [protected] activity, and (3) the defendant’s actions were substantially motivated
as a response to [her] protected conduct.” McBeth v. Himes, 598 F.3d 708, 717 (10th
Cir. 2010) (alterations in original) (internal quotation marks omitted). In essence,
Plaintiff asks us to expand the first element. She argues she should be able to prevail
on a First Amendment retaliation claim if she can establish she was engaged in a
constitutionally protected activity or the defendant believed she was engaged in a
constitutionally protected activity.
The Supreme Court recently decided this very issue as it arises in the public
employment context in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). In that
case, “a government official demoted an employee because the official believed, but
incorrectly believed, that the employee had supported a particular candidate for
mayor.” Id. at 1416. The Court set out to determine whether this demotion violated
the employee’s First Amendment rights “[e]ven though the employee had not in fact
engaged in protected political activity.” Id. The Court held that it did:
We conclude that . . . the government’s reason for demoting [the
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employee] is what counts here. When an employer demotes an
employee out of a desire to prevent the employee from engaging in
political activity that the First Amendment protects, the employee is
entitled to challenge that unlawful action under the First Amendment
and 42 U.S.C. § 1983—even if, as here, the employer makes a factual
mistake about the employee’s behavior.
Id. at 1418 (emphasis added); see also id. at 1419 (holding that this same rule applies
when an employer discharges an employee).
The question naturally arises how far the Supreme Court’s decision in
Heffernan extends: does its holding apply to all First Amendment retaliation claims,
or is it limited only to situations where an employer demotes or discharges an
employee? But that question can be answered another day. Here, Heffernan clearly
governs Plaintiff’s First Amendment retaliation claim, for Plaintiff was a public
employee who claims her municipal employer discharged her based on its belief that
she engaged in constitutionally protected activity. And undoubtedly, whether West
Valley City officials actually believed Plaintiff leaked statements to the press is not
at issue—both Mr. Davis and Mr. Morris admitted they held such a belief. Thus, as
long as West Valley City officials fired Plaintiff based on this belief, then Plaintiff’s
denial that she was the source of these leaks is not fatal to her claim.
The district court, however, did not determine whether Plaintiff raised a
genuine issue of material fact that this belief substantially motivated West Valley
City officials’ decision to terminate Plaintiff. Nor did it determine whether the leaks
to the press qualified as “constitutionally protected activity.” Instead, it granted
summary judgment to Defendants solely because it determined that Plaintiff had not
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engaged in any speech whatsoever. We also note that the parties have not otherwise
briefed the applicability of these remaining elements—in both the district court and
on appeal they disputed only whether Plaintiff’s denial of speaking defeated her
claim. Thus, we reverse the judgment of the district court on Plaintiff’s First
Amendment retaliation claim and remand for the court to decide whether Plaintiff can
automatically proceed to trial on this claim or whether the parties must have an
opportunity to dispute the remaining elements of this claim at the summary judgment
stage. The district court is in the best position to make that decision in the first
instance, so a remand is appropriate.
CONCLUSION
Mr. Davis is clearly not the perfect supervisor. He not only lacked a sense of
professionalism while working at the Animal Shelter but may have subjected his
employees to humiliating verbal abuse. But aside from Plaintiff’s allegation that she
was retaliated against in violation of her First Amendment free speech rights, we
cannot give her any relief against Mr. Davis or West Valley City based on the
specific legal claims she brings. She was not fired because of her gender, any hostile
work environment she experienced at the hands of Mr. Davis was not based on
gender, and West Valley City did not form any contract with her that mandated it
would protect her from workplace violence or prevent her from being retaliated
against. For these reasons, most of Plaintiff’s claims must fail at the summary
judgment stage.
The judgment of the district court regarding Plaintiff’s Title VII claims,
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§ 1983 Equal Protection claim, and contract claims is therefore AFFIRMED. The
judgment of the district court regarding Plaintiff’s § 1983 First Amendment
retaliation claim is REVERSED, and this case is REMANDED for further
proceedings consistent with this opinion.
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