Flores v. City & County of Denver , 30 F. App'x 816 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOANN O. FLORES,
Plaintiff-Appellant,
v. No. 01-1185
(D.C. No. 99-D-1061)
CITY AND COUNTY OF DENVER, (D. Colo.)
a municipal corporation; DENVER
DEPARTMENT OF HUMAN
SERVICES, a Department of the
Executive Branch of the government
of the City and County of Denver,
Colorado, formerly known as Denver
Department of Social Services;
MARGARET O’ROURKE,
individually,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY , McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Joann O. Flores is appealing the district court’s entry of summary
judgment in favor of defendants Denver Department of Human Services (DDHS)
and Margaret O’Rourke (O’Rourke). We affirm the entry of summary judgment
in favor of DDHS on plaintiff’s retaliation claim under 42 U.S.C. § 2000e-3, but
reverse the entry of summary judgment in favor of O’Rourke on plaintiff’s claim
of national origin discrimination under 42 U.S.C. § 1981. 1
I.
Plaintiff is a Hispanic female who has been employed by DDHS and its
predecessor for over twenty years. In 1984, she became the supervisor of
DDHS’ Low Income Energy Assistance Program (LIEAP). In May 1997,
O’Rourke became plaintiff’s immediate supervisor. Plaintiff alleges that
O’Rourke continually treated her in a demeaning and offensive manner because of
her national origin, and she alleges that O’Rourke did not treat other supervisors
who are white in the same manner. Specifically, plaintiff alleges that, during
1
The district court also entered summary judgement in favor of defendant
City and County of Denver on all of plaintiff’s claims; defendant DDHS on
plaintiff’s § 1981 claim; and defendant O’Rourke on plaintiff’s Title VII claim.
Plaintiff is not appealing the entry of summary judgment on these claims, and we
will therefore not address them.
-2-
a meeting on March 4, 1998, O’Rourke became upset with her and physically
grabbed her arm, shook it for several seconds, and then punched her in the arm.
Plaintiff formally complained about the latter incident to O’Rourke’s supervisor,
and she was eventually offered five options for resolving her problems with
O’Rourke. The option plaintiff accepted was to leave her position as supervisor
of LIEAP and accept a lateral transfer to a position as supervisor of DDHS’
Supplemental Foods Program.
Plaintiff subsequently filed suit against defendants in the United States
District Court for the District of Colorado. In her complaint, plaintiff asserted
a number of claims against defendants, but she eventually abandoned all of her
claims except for two. First, plaintiff asserted a claim against DDHS for unlawful
retaliation under 42 U.S.C. § 2000e-3, alleging that she was transferred from her
position as supervisor of LIEAP in retaliation for complaining about O’Rourke’s
discriminatory conduct. Second, plaintiff asserted a claim against O’Rourke
under 42 U.S.C. § 1981, alleging that O’Rourke unlawfully discriminated against
her based on her national origin. The district court entered summary judgment in
favor of DDHS and O’Rourke, and this appeal followed.
-3-
II.
A. Summary Judgment Standard
“This court reviews a grant of summary judgment de novo , applying the
same standard applied by the district court.” See Perry v. Woodward , 199 F.3d
1126, 1131 (10th Cir. 1999) (citation omitted). “Under this standard, this court
examines the record to determine whether any genuine issue of material fact is in
dispute. We construe the factual record and reasonable inferences therefrom in
the light most favorable to the nonmoving party.” Id. (citations omitted).
“If there are no material issues of fact in dispute, this court determines whether
the district court correctly applied the substantive law. When this court reviews
a grant of summary judgment, it reviews the district court’s conclusions of law
de novo .” Id. (citations omitted).
B. Plaintiff’s Retaliation Claim Under Title VII
In order to establish a prima facie case of retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, plaintiff must prove
that: (1) she was engaged in protected opposition to Title VII discrimination;
(2) she was subjected to an adverse employment action by DDHS; and (3) a causal
connection existed between the protected activity and the adverse employment
action. See Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 533 (10th Cir. 1998).
Applying the second prong of this test, the district court found that plaintiff’s
-4-
lateral transfer to the Supplemental Foods Program did not constitute an adverse
employment action because it was undisputed that the transfer was not
accompanied by a change in pay or benefits and that plaintiff accepted the
transfer voluntarily. The district court therefore found that plaintiff had failed to
establish a prima facie case of retaliation in violation of Title VII, and it entered
summary judgment in favor of DDHS.
We agree with the district court’s analysis. As in Sanchez , plaintiff’s
lateral transfer to another program within DDHS did not constitute an adverse
employment action since it is undisputed that her salary, tenure, and benefits
remained the same, and she has failed to establish that the transfer constituted
more than a mere inconvenience or an alteration of her job responsibilities.
Cf. id. at 532 (affirming summary judgment dismissing teacher’s Title VII
discrimination claim where teacher’s lateral transfer to another school was not
adverse employment action since teacher continued to receive same pay and
benefits and teach at elementary school level). Although plaintiff claims that the
transfer constituted an adverse employment action because she had no prior
experience or training for her new position, plaintiff has failed to show that the
transfer amounted to a significant change in her employment status. See id.Accordingly, plaintiff has failed to establish a prima facie case of retaliation in
-5-
violation of Title VII, and we affirm the entry of summary judgment in favor of
DDHS . 2
C. Plaintiff’s Discrimination Claim Under § 1981
The district court granted summary judgment in favor of O’Rourke on
plaintiff’s § 1981 claim on the grounds that, even if there was an employment
contract between plaintiff and DDHS, there was no privity of contract between
plaintiff and O’Rourke. This ruling is based on an erroneous interpretation of
§ 1981, and we reverse the district court’s entry of summary judgment in favor of
O’Rourke.
In employment discrimination cases, § 1981 requires that there be an
underlying employment contract between the plaintiff and his or her employer,
but there is no requirement that the plaintiff must also be in privity of contract
with a supervisor or other co-employee before the latter can be sued individually
under § 1981. Instead, an individual defendant can be held liable under § 1981 if
the individual defendant was personally involved in the discriminatory conduct.
See Allen v. Denver Pub. Sch. Bd. , 928 F.2d 978, 983 (10th Cir. 1991), overruled
2
In light of our holding, we do not need to address the district court’s
alternative findings that: (1) plaintiff was not engaged in protective conduct
because she did not specifically complain about racial discrimination when she
reported O’Rourke’s conduct to her supervisor; and (2) even if plaintiff
established a prima facie case of retaliation, the claim fails because there is no
evidence that DDHS’s decision to transfer plaintiff was a pretext for
discrimination.
-6-
on other grounds , Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1228
(10th Cir. 2000); accord Whidbee v. Garzarelli Food Specialties, Inc. , 223 F.3d
62, 75 (2d Cir. 2000); Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001).
This conclusion is supported by the following decisions of this court in which the
panels, while not specifically addressing the privity of contract issue, implicitly
recognized that an individual employee can be held liable under § 1981 if there is
an underlying employment contract and the individual employee was personally
involved in the alleged racial discrimination. See Ramirez v. Dep’t of Corr.,
222 F.3d 1238, 1240-42, 1244 (10th Cir. 2000); Perry , 199 F.3d at 1130-33,
1143; Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1528-30, 1532 (10th Cir. 1995).
It is undisputed that plaintiff was an employee of DDHS and that her
§ 1981 claim is supported by an underlying employment contract. 3
Further,
plaintiff has alleged that O’Rourke personally discriminated against her because
she is Hispanic. Accordingly, we reverse the district court’s entry of summary
judgment in favor of O’Rourke on plaintiff’s § 1981 claim and remand that claim
to the district court. In doing so, we intend no comment on whether plaintiff has
3
While there was apparently no written employment contract between
plaintiff and DDHS, it is undisputed that plaintiff had a twenty-year employment
relationship with the department and its predecessor and that she was an employee
of the department at the time O’Rourke allegedly discriminated against her. This
is sufficient evidence of an underlying employment contract to support plaintiff’s
§ 1981 claim. See Perry, 199 F.3d at 1132-33 (holding that written employment
contract is not necessary to support § 1981 claim).
-7-
put forth sufficient evidence to survive summary judgment on her § 1981 claim,
an issue not addressed by the district court.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for
further proceedings consistent with this order and judgment.
Entered for the Court
Michael R. Murphy
Circuit Judge
-8-