August 22, 2017

Archives for August 12, 2016

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: Historical Mandates Regarding Criminal Prosecutions on Ute Tribal Lands Must Be Enforced

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton on Tuesday, August 9, 2016.

Beginning in the 1860s, members of the Ute Tribe were forced onto a new reservation. By 1905, Congress authorized the Secretary of the Interior to break up the Ute reservation by assigning individual plots to tribal members and alloting any leftover land to homesteaders. In 1945, Congress ordered all unalloted lands returned to tribal jurisdiction. In 1975, the Ute Tribe filed a federal lawsuit alleging that the State of Utah and several local governments were prosecuting tribal members for crimes committed on tribal land, despite a federal mandate requiring prosecution by federal or tribal authorities. In 1985, the Tenth Circuit issued a decision known now as Ute III in which it ruled that all lands encompassed by the original boundaries of the Ute reservation were tribal lands.

Unsatisfied with this outcome, state and local officials “went shopping for a ‘friendlier forum'” in which to litigate their disputes. State officials argued in Utah state courts that their criminal prosecutions for crimes committed on tribal lands could proceed because the 1905 legislation carved out those lands that passed to non-tribal members. The Utah Supreme Court and U.S. Supreme Court agreed. The Tenth Circuit reconsidered Ute III‘s mandate in light of Hagen v. Utah, 510 U.S. 399 (1994), and issued Ute V to reconcile its earlier ruling with the Supreme Court’s decision.

Utah and several of its counties again began prosecuting tribal members in state courts for crimes committed on tribal lands, leading the Tribe to request a permanent injunction from the district court in 2013. However, in a one line order containing no explanation, the district court denied the Tribe’s request. In Ute VI, the Tenth Circuit once again found that the lands in question were undeniably tribal and the state and localities were again attempting to undo the tribal boundaries settled by Ute III and Ute V. While Ute VI was pending, the municipality of Myton filed a motion to dismiss the Tribe’s suit. The district court granted Myton’s motion to dismiss

The Tribe and the federal government requested the Tenth Circuit to give effect to Ute V‘s mandate by overturning the district court, and the Tenth Circuit felt “obliged to do exactly that.” Myton disputed the facts in the complaint, arguing that none of the lands within its bounds was subject to the 1945 restoration order. The Tenth Circuit remarked that a motion to dismiss is not proper when facts are contested. The Tenth Circuit found it undisputed that nearly half of the town’s land remained tribal trust land. Although Myton pointed to a sentence in Hagen that the crime in question had been committed in the town on non-tribal land, the Tenth Circuit declined to extend that holding to mean that all lands in the town were non-tribal. Myton also argued it would be inequitable for the town’s administration to have parcels where it could not exercise criminal jurisdiction. The Tenth Circuit found this argument unavailing, noting that “checkerboard jurisdiction” is a fact of daily life in the West, where many municipalities have successfully navigated similar congressional mandates. Myton also appealed to laches, contending that since the Tribe waited so long to assert claims against it, Myton fairly believed its township to be all non-tribal lands. The Tenth Circuit disagreed, noting first that laches cannot be asserted against the United States and also finding that the Tribe has vigorously defended its rights since the first suit in 1975.

The Tribe also requested that the Tenth Circuit assign the case to a different district judge on remand. The Tenth Circuit remarked that it reserves reassignment for only the most extreme cases, of which this was one. The district court judge “twice failed to enforce” the Tenth Circuit’s mandate in Ute V and the Tenth Circuit found little hope that things would change on remand.

The Tenth Circuit reversed the district court’s order granting Myton’s motion to dismiss, and ordered that this case and all related matters be reassigned on remand.

Tenth Circuit: Unpublished Opinions, 8/11/2016

On Thursday, August 11, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Golden

Chung v. El Paso School District #11

Lester v. United States

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.