Orr v. City of Albuquerque

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 2, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CYNTHIA ORR; STEPHEN ORR; and
PATRICIA PAIZ,

Plaintiffs-Appellants,
v. No. 03-2287
CITY OF ALBUQUERQUE and
MARY BETH VIGIL,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-01-1365-JP/RHS)

Paul J. Kennedy (Mary Y. C. Han with him on the briefs) of Kennedy & Han,
P.C., Albuquerque, New Mexico, for Plaintiffs-Appellants.

Paula I. Forney, Assistant City Attorney (Robert M. White, City Attorney, with
her on the brief), City of Albuquerque, Albuquerque, New Mexico, for
Defendants-Appellees.

Before EBEL, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.
 This appeal involves three police officers who alleged separate but related

causes of action against their employer, the Albuquerque Police Department

(“APD”), because of APD’s alleged mistreatment of Plaintiffs in conjunction with

their requests for parental leave.

After eleven years with APD, Ms. Orr, pregnant with her first child,

devised a way to maximize her work schedule to best accommodate the birth of

her child. Ms. Orr wanted to take several months of parental leave after her child

was born. To facilitate this leave, Ms. Orr planned to use a combination of

accrued compensatory time 1 and vacation time in addition to working part-time.

Absent from Ms. Orr’s plan was the use of sick leave. This was intentional

because, based on APD policies, it was more advantageous to continue to accrue

sick leave. Accrued sick leave can be used toward early retirement while the

other types of leave cannot. In addition, Ms. Orr’s desire to use compensatory

time was an effort to use the excess compensatory time she had accumulated;

employees could not work additional overtime until they had decreased their

accumulated compensatory time to below the cap. 2

Compensatory time, as defined by APD, is a mechanism used to
1

compensate APD employees who work overtime in lieu of monetary
compensation.
2
The cap for compensatory time during the relevant periods was 150 hours.
In preparing for her parental leave, Ms. Orr was allowed to accumulate
compensatory time in excess of the cap to use during her parental leave. As a
(continued...)

-2-
 Ms. Orr received permission from a supervisor to institute her plan. After

the birth of her child, Ms. Orr did not immediately return to work. On her time

sheet, she reported the first three weeks of her time off as covered by

compensatory time. During the fourth week, she began working part-time in

conjunction with compensatory time.

Everything went according to Ms. Orr’s plan until APD’s Personnel

Director Mary Beth Vigil learned of Ms. Orr’s actions. At that time, Ms. Vigil

put a quick stop to Ms. Orr’s conduct. Ms. Orr was informed that, because of her

pregnancy, she could not work part-time and could not use compensatory time for

her parental leave. Ms. Vigil relied on an alleged APD policy which purportedly

required that only sick leave could be used when leave is taken for any Family

and Medical Leave Act (“FMLA”) purpose, which includes parental leave. Ms.

Vigil planned on changing Ms. Orr’s personnel records to reflect the use of sick

leave. Ms. Orr then attempted to use vacation time for her leave, but she was

again stopped by Ms. Vigil because only sick leave could be used. Ultimately,

Ms. Orr was forced to use sick leave and was not paid for the part-time work she

performed during this period.

In June of 2002 Ms. Orr gave birth to a second child. Ms. Orr and her

2
(...continued)
general policy, APD requested those officers who had accumulated more than 250
hours of compensatory time to use that time.

-3-
husband sought permission to use leave for a different FMLA purpose: Mr. Orr’s

leave was to care for the new baby while Ms. Orr needed leave to recover from

her cesarian section. After requesting their leave, the Orrs were informed that

they had to split a total of twelve weeks’ leave between them. Ms. Orr was told

that she could take a total of six weeks’ leave. However, because her doctor

would not clear her to return to work, she ended up taking eight weeks’ leave.

After working ten years for APD, Ms. Paiz became pregnant. In connection

with the birth of her daughter in July 2000, Ms. Paiz used compensatory time for

her parental leave. However, when Ms. Vigil learned of Ms. Paiz’s use of

compensatory time, she informed Ms. Paiz that she was in violation of APD’s

policy and that her records were to be changed accordingly. Ms. Paiz, perceiving

discrimination, sought direction from Deputy Chief Ruben Davalos. During this

meeting, which Ms. Vigil attended, Deputy Chief Davalos admitted that he had

once used compensatory time for FMLA purposes. In response to this admission,

Ms. Vigil, strong in her adherence to the purported policy, attempted to change

Deputy Chief Davalos’s records to reflect the use of sick leave but was unable to

do so. In the end, Ms. Vigil prevented Ms. Paiz from continuing her use of

compensatory time and changed her personnel records to reflect that sick time had

been used for her maternity leave. Ms. Paiz returned to work earlier than

anticipated to avoid using too much of her accumulated sick leave.

-4-
 As a consequence of the difficulties that arose in connection with Ms. Orr’s

and Ms. Paiz’s parental leave, each filed complaints with the EEOC. Mr. Orr,

Ms. Orr’s husband and an officer with the APD since 1990, was named as a

witness to the EEOC mediation because he was permitted to use two weeks of

compensatory time following the birth of the Orr’s first child. 3 Ms. Vigil, who

was present during the mediation, learned both that Mr. Orr had used

compensatory time for FMLA purposes and that he was planning on testifying for

Ms. Orr and Ms. Paiz. Armed with that information, Ms. Vigil attempted to

change Mr. Orr’s records to reflect the use of sick leave. However, Ms. Vigil

learned from the Department of Wage Labor and Hour Division that those

changes were untimely. Therefore, these changes could not be made.

As a result of Ms. Vigil’s actions, Plaintiffs brought this civil rights lawsuit

pursuant to 42 U.S.C. § 1983, Title VII, and the New Mexico Human Rights Act

(“NMHRA”). After protracted litigation, the district court granted summary

judgment in Defendants’ favor. On appeal, we review the district court’s grant of

summary judgment de novo applying the same legal standards as employed by the

district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

3
Mr. Dilley, an officer of APD, was also named as a witness because he too
had used compensatory time for an FMLA purpose.

-5-
 The district court ruled on multiple issues, and Plaintiffs seek reversal on

several of these rulings. On appeal, Ms. Orr and Ms. Paiz (“the female

Plaintiffs”) contend that the district court erroneously concluded that they could

not make out a prima facie case of discrimination for their Title VII and NMHRA

claims. They also claim that they properly raised a claim for violation of their

due process rights that the district court failed to properly consider. The female

Plaintiffs’ final contention on appeal is that the district court erred in dismissing

their municipal liability claim against the City of Albuquerque. Mr. Orr claims

that the district court erred in dismissing his First Amendment claim.

The female Plaintiffs contend that the district court erred in granting

Defendants’ motion for summary judgment on their employment discrimination

claims. The female Plaintiffs have carefully tailored the issues they present on

appeal. They aver the district court erred because it narrowly categorized adverse

employment action and concluded that the female Plaintiffs were not treated

differently than others similarly situated. 4

4
The female Plaintiffs also claim error because the district court allegedly
ignored direct evidence of discrimination and decided that they presented no
admissible evidence of pretext. The district court’s memorandum opinion and
order is silent on both issues. However, this cannot be considered error on the
district court’s part because the district court can only be expected to rule on
matters raised by the parties. Because the record is void of any attempt by the
parties to seek summary adjudication on these issues, we do not address them in
this opinion. See Young v. United States, 394 F.3d 858, 861 n.2 (10th Cir. 2005)
(continued...)

-6-
 The female Plaintiffs brought claims pursuant to both Title VII and the

NMHRA alleging employment discrimination. 5 For Plaintiffs to prevail on either

claim, they must establish intentional discrimination through either direct or

indirect evidence. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191

(10th Cir. 2000) (citation omitted). If there is no direct evidence of

discrimination, the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

burden-shifting framework is used to indirectly prove intentional discrimination.

Id. Pursuant to the McDonnell Douglas approach, if a plaintiff can make out a

prima facie case of discrimination, the burden shifts to the defendant to

demonstrate a legitimate non-discriminatory reason for the adverse employment

action. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.

2000). If the defendant meets this burden, the burden shifts back to the plaintiff

to demonstrate that the defendant’s proffered reason is pretext. Id.

The district court’s justification for granting summary judgment to

Defendants and dismissing the female Plaintiffs’ Title VII claims is because the

female Plaintiffs could not make out a prima facie case of discrimination. Aplt.

4
(...continued)
(“[A] federal appellate court does not consider an issue not passed upon below.”)
(quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
5
Because the female Plaintiffs’ burden under the NMHRA is identical to
their burden under Title VII, our analysis of the federal law applies equally to
their state-law claim. See Cates v. Regents of the New Mexico Inst. of Mining &
Tech., 124 N.M. 633, 638 (1998).

-7-
App., Vol. IV, at 963 (Dist. Ct. Op.). To make out a prima facie case of

discrimination, the female Plaintiffs must demonstrate (1) membership in a

protected class, (2) adverse employment action, and (3) disparate treatment among

similarly situated employees. Trujillo v. Univ. of Colorado Health Scis. Ctr., 157

F.3d 1211, 1215 (10th Cir. 1998). The female Plaintiffs’ burden in articulating a

prima facie case is slight. “At the prima facie stage of the McDonnell Douglas

analysis, a plaintiff is only required to raise an inference of discrimination, not

dispel the non-discriminatory reasons subsequently proffered by the defendant.”

EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000)

(emphasis added). At the prima facie stage, the plaintiff’s burden is “not

onerous,” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981),

which is evidenced by the “small amount of proof necessary to create [an

inference of discrimination],” EEOC v. Flasher Co. Inc., 986 F.2d 1312, 1318

(10th Cir. 1992). The district court concluded that, although the female Plaintiffs

were members of a protected class (pregnant women), they neither suffered

adverse employment action nor were they treated differently than similarly

situated employees. Aplt. App., Vol. IV, at 960, 962-63 (Dist Ct. Op.). The

female Plaintiffs disagree.

In this appeal, we must decide whether Plaintiffs demonstrated, at a

minimum, a genuine issue of material fact as to their prima facie claim of

-8-
discrimination. In analyzing Plaintiffs’ prima facie case, it is important not to

conflate their claim of discrimination with Defendants’ proffered explanation.

See Horizon/CMS Healthcare, 220 F.3d at 1193 (“When an employee’s failure to

meet objective, employer-imposed criteria is one of the legitimate, non-

discriminatory reasons advanced by an employer to dispel the inference of

discrimination raised by an employee at the prima facie stage, it cannot also be

used to defeat the employee’s prima facie case.”). Our analysis focuses on the

second and third elements of Plaintiffs’ prima facie case, whether Plaintiffs

suffered adverse employment action and whether they were treated differently

than others similarly situated.

Because of the remedial nature of Title VII lawsuits, we broadly define

adverse employment action. Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir.

1998). We have stated that adverse employment actions “constitute[] a significant

change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217

(10th Cir. 2003) (internal quotation and citation omitted). We have also

recognized that monetary losses take a variety of forms including shifts in

compensation or benefits. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532

(10th Cir. 1998).

-9-
 The female Plaintiffs have several bases for their claim of adverse

employment action, which can be characterized as follows: (1) Defendants

impaired the female Plaintiffs’ structured parental leave; (2) Defendants did not

compensate Ms. Orr for part-time work performed while on parental leave; and

(3) Defendants refused to allow Ms. Orr twelve weeks’ leave for health issues

related to her second pregnancy. 6 Defendants’ alleged impairment of the female

Plaintiffs’ structured parental leave had at least two serious implications. First,

their accumulated sick leave was severely diminished. Second, they were unable

to use the substantial amounts of compensatory time their supervisor specifically

authorized to be accumulated for this very purpose. Because of this, they could

not get their accumulated levels below the maximum amount and were prevented

from accruing additional compensatory time (or, in other words, working

6
The female Plaintiffs appear to believe that this analysis is similarly
applicable to their equal protection claim. See Aplt. Br. at 26. However, that
assumption ignores the basis for which the district court dismissed the equal
protection claim–qualified immunity. See Aplt. App., Vol. IV, at 949-51. The
district court’s analysis was based on the class-of-one doctrine, which requires
proof that the female Plaintiffs were “intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in
treatment.” Id. at 949 (internal quotation omitted). Although this theory of the
case appears analogous to our later discussion of different treatment of similarly
situated employees, see infra p. 12-15, it is strikingly different. An equal
protection claim based on a class-of-one theory requires proof that the defendant
“bore [some] particular ill will or malice against” the plaintiff. Jennings v. City
of Stillwater, 383 F.3d 1199, 1211 (10th Cir. 2004). The female Plaintiffs have
made no such allegations in this case sufficient to disturb the district court’s grant
of qualified immunity to Ms. Vigil on the equal protection claim.

-10-
overtime). The failure to pay Ms. Orr for the part-time work she performed while

on parental leave is clearly an adverse employment action. See id.; see also Bass

v. Bd. of County Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001) (“[A]ctions

which deprive[] [a plaintiff] of compensation which he otherwise would have

earned clearly constitute adverse actions for purposes of Title VII.”). In addition,

the female Plaintiffs’ benefits were significantly altered. It is undisputed that Ms.

Vigil required the female Plaintiffs to use sick time for their maternity leave

despite the fact that they wanted to, and attempted to, use compensatory time.

Because the female Plaintiffs were obligated to use their sick leave, their leave

reserves for future illnesses or early retirement were seriously diminished. In

addition, being required to use sick leave was problematic because it prevented

the female Plaintiffs from using their accumulated compensatory time, which they

had received permission to accumulate, and were also ordered to decrease. The

female Plaintiffs’ inability to use their compensatory time also had the effect of

preventing them from working additional overtime. In this respect, Ms. Vigil’s

conduct was sufficient to demonstrate adverse employment action. 7

7
We note that Defendants have changed Ms. Paiz’s records to reflect the
use of compensatory time for her parental leave. The district court correctly
noted that “[a]n employer’s ‘decision to reprimand or transfer an employee, if
rescinded before the employee suffers a tangible harm, is not an adverse
employment action.’” Aplt. App., Vol. IV, at 958 (Dist. Ct. Op.) (citations
omitted). Because the harm to Ms. Paiz, as noted in the text, affected her ability
to work additional overtime and therefore earn more compensatory time during
(continued...)

-11-
 In addition, Ms. Orr claims that she suffered adverse employment action in

connection with her leave request related to the birth of her second child. FMLA

requires qualified employers to allow their employees twelve weeks’ leave, within

a twelve-month period, to care for a medical condition. See 29 U.S.C. §

2612(a)(1) (2000). Failure to adhere to this statutory mandate, without sufficient

justification, can constitute adverse employment action. The district court agreed

with this notion and decided that Mr. Orr had demonstrated a genuine issue of

material fact as to whether Ms. Vigil’s conduct, in relation to his request for leave

following the birth of his second child, constituted an adverse employment action.

Aplt. App., Vol. IV, at 965 (Dist. Ct. Op.). Ms. Orr claims that this holding is in

conflict with the district court’s rejection of her similar claim of adverse

employment action. Aplt. Br. 50 n.18.

This inconsistency arises because of an alleged factual error committed by

the district court. The district court decided the issue differently because it noted

that Ms. Orr ultimately “received the eight weeks of leave that she first requested

. . . .” Aplt. App., Vol. IV, at 961 (Dist. Ct. Op.). Ms. Orr contends that she

presented “quite clear” evidence that she first “sought [twelve] weeks of leave.”

7
(...continued)
the period between Ms. Vigil’s denial to use compensatory time and the
restitution of compensatory time, it is still adverse. Defendants have not
demonstrated how this restitution mooted all of Ms. Paiz’s concerns. See United
States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (explaining that the heavy
burden of establishing mootness rests on the defendant).

-12-
Aplt. Br. at 50. Despite this bold statement, Ms. Orr has not cited to anything in

the record to support the proposition. “In the absence of such specific reference,

we will not search the record in an effort to determine whether there exists

dormant evidence which might require submission of the case to a jury.” Thomas

v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992); see

also Fed. R. App. P. 28(a)(9)(A) (explaining that an appellant’s argument must

contain “appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies”) (emphasis

added). Therefore, the district court properly held that Ms. Orr did not suffer

adverse employment action in connection with the leave requested after the birth

of her second child.

The female Plaintiffs also challenge the district court’s holding that they

were not treated differently than similarly situated employees. The district court

concluded that “a reasonable jury would not find that the female Plaintiffs were

treated differently from other similarly situated ADP officers . . . [because] the

Plaintiffs have . . . failed to present any evidence that . . . the personnel office

knew that . . . other APD employees were using compensatory time for FMLA

purposes.” Aplt. App., Vol. IV, at 963 (Dist. Ct. Op.).

The district court’s framing of the analysis of this element put the cart

before the horse. We have warned against this conflation of the issues, which

-13-
results in an elevated burden on plaintiffs in Title VII lawsuits. Thus, the district

court “made the playing field unlevel for the [female Plaintiffs] when [their]

burden was supposed to be ‘not onerous.’” Ortiz v. Norton, 254 F.3d 889, 894

(10th Cir. 2001). Defendants appear to have presented a strong case for a

justifiable business reason for their apparent disparate treatment–that had they

known of the male employees’ conduct in time to do so, they would have treated

them the same as the female Plaintiffs. However, because of the way the district

court structured the analysis, the female Plaintiffs were denied an opportunity to

fully address pretext as such. Id. On remand, the district court must give the

female Plaintiffs an opportunity to present a pretext case if they have any

additional evidence to present on this point.

It is worth repeating that the prima facie stage in the McDonnell Douglas

test is not onerous. Burdine, 450 U.S. at 252-53; see also Horizon, 220 F.3d at

1997. To show disparate treatment from similarly situated employees, the female

Plaintiffs offered evidence that Mr. Orr, Mr. Dilley, and Deputy Chief Davalos

were all able to use compensatory time for FMLA leave purposes, whereas the

female Plaintiffs were required, according to purported policy, to use sick leave

for their FMLA leave. Ms. Vigil does not deny that she did not change Mr. Orr’s,

Mr. Dilley’s, and Deputy Chief Davalos’s records when they used sick leave for

FMLA purposes, but instead she attempts to justify this action. Her reasoning is,

-14-
however, irrelevant at this point of the McDonnell Douglas inquiry. See Ortiz,

254 F.3d at 894; Horizon/CMS Healthcare, 220 F.3d at 1193. The second part of

the McDonnell Douglas test is where Ms. Vigil has the opportunity to explain the

reasons for her actions. Kendrick, F.3d at 1226 (“Once the plaintiff has

established a prima facie case, ‘[t]he burden then must shift to the employer to

articulate some legitimate, nondiscriminatory reason’ for its employment action.”)

(quoting McDonnell Douglas, 411 U.S. at 802) (emphasis added).

The female Plaintiffs’ evidence is sufficient to raise an inference of

discrimination because they have “presented admissible evidence that Defendant

treated at least one non-pregnant employee . . . more favorably than [them].”

Horizon/CMS Healthcare, 220 F.3d at 1197; see also id. at 1195 n.7 (“Evidence

that pregnant women were treated differently than other temporarily-disabled

employees, left unexplained, is sufficient to raise an inference of illegal

discrimination at the prima facie stage.”). The reasoning for Ms. Vigil’s actions

is more properly considered in answering the second prong of the McDonnell

Douglas inquiry, whether there was a legitimate non-discriminatory business

reason for discriminating against the female Plaintiffs. Id. at 1195 n.7. Summary

judgment as to the female Plaintiffs’ Title VII and NMHRA claims was therefore

inappropriate.

The female Plaintiffs also contest the district court’s refusal to address

-15-
their due process claim. However, the complaint is void of a claim for violation

of their due process rights. Notwithstanding that oversight, the female Plaintiffs

contend that the district court improperly refused to consider their claim for

violation of their substantive due process rights because they raised the issue in

their response to Defendants’ motion for summary judgment.

Effectively, the female Plaintiffs believe they were entitled to amend their

complaint to include their “new” claim. See Viernow v. Euripides Dev. Corp.,

157 F.3d 785, 790 n.9 (10th Cir. 1998). “The decision to grant leave to amend a

complaint, after the permissive period, is within the trial court's discretion, Fed.

R. Civ. P. 15(a), and will not be disturbed absent an abuse of that discretion.”

Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991) (internal

citation omitted). A district court abuses its discretion if its decision is “arbitrary,

capricious, whimsical, or manifestly unreasonable . . . .” Coletti v. Cudd Pressure

Control, 165 F.3d 767, 777 (10th Cir.1999) (quotation omitted).

[A] plaintiff should not be prevented from pursuing a valid claim just
because she did not set forth in the complaint a theory on which she
could recover, provided always that a late shift in the thrust of the
case will not prejudice the other party in maintaining his defense
upon the merits.

Evans v. McDonald’s Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (internal

quotation omitted). That general rule, which is based on the liberal pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure, does not,

-16-
however, “permit plaintiffs to wait until the last minute to ascertain and refine the

theories on which they intend to build their case.” Id. at 1091.

This case is sufficiently similar to Evans for us to uphold the district

court’s refusal to recognize the female Plaintiffs’ due process claim. In Evans,

the plaintiff, responding to the defendant’s motion for summary judgment, raised

a new claim for relief. Id. at 1090-91. We held the practice improper because the

new claim was “sufficiently unique” to the plaintiff’s properly pled claims to

cause substantial prejudice to the defendant if permitted to go forward even

though the new claim was based on the same factual scenario as the old claims.

Id. at 1091.

Here, the female Plaintiffs attempted the same tactic as the plaintiff in

Evans. The female Plaintiffs raised a due process claim, for the first time, in

their response to Defendants’ summary judgment motion. If we allow this

practice in this case, Defendants will be substantially prejudiced. The female

Plaintiffs’ reference to due process, which happens to be in a footnote, is

insufficient to put Defendants on notice of what type of due process violation is

being alleged, procedural or substantive, requiring additional discovery and

preparation. Also, the burden on Defendants for defending a claim for violation

of one’s due process rights is sufficiently different from defending Plaintiffs’

equal protection claim. Compare Tonkovich v. Kansas Bd. of Regents, 159 F.3d

-17-
504, 533 (10th Cir. 1998), with Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.

1995); see also Jennings, 383 F.3d at 1213 (explaining that the requirement to

prove different treatment from similarly situated persons distinguishes an equal

protection claim from a due process claim). Refusing to consider the female

Plaintiffs’ claim for violation of their due process rights was not an abuse of

discretion.

The female Plaintiffs’ final contention of error is that the district court

improperly resolved factual disputes in Defendants’ favor when it granted the

City of Albuquerque summary judgment as to their municipal liability claim. The

female Plaintiffs’ specific claim of error is that “the trial court determined that

Defendant Vigil did not act pursuant to an unlawful municipal policy, and not as a

policymaker . . . .” Aplt. Br. at 56. To establish municipal liability, the female

Plaintiffs must show “‘that 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.’” Ledbetter v. City of Topeka, Kansas, 318 F.3d 1183, 1189

(10th Cir. 2003) (quoting Camfield v. City of Oklahoma City, 248 F.3d 1214,

1229 (10th Cir. 2001) (emphasis added). Notably absent from the list of issues on

appeal is a challenge to the district court’s ruling that Defendant Vigil’s actions

were constitutionally permissible. See Aplt. App., Vol. IV, at 951 (Dist. Ct. Op.)

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(granting Defendant Vigil qualified immunity because “the Plaintiffs have not

demonstrated that Defendant Vigil’s actions violated the equal protection clause

of the Fourteenth Amendment.”). In light of this failure, a decision regarding

whether an official policy of APD motivated Defendant Vigil’s actions or whether

she is a final policy-making authority, would be advisory. We will not address

this issue because it has no bearing on the ultimate outcome of this case. See

Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (The court “will not

undertake to decide issues that do not affect the outcome of a dispute.”); see also

United States v. Torres, 182 F.3d 1156, 1164 n.2 (10th Cir. 1999) (“[P]rinciples

of judicial restraint” require us not to issue “an opinion that is unnecessary and

meaningless as applied to the [parties] in this case.”).

Plaintiff Stephen Orr alleges that the district court erred in granting

summary judgment on his First Amendment claim of retaliation. Aplt. Br. at 52.

To determine whether Defendants impermissibly infringed on Mr. Orr’s First

Amendment rights requires us to apply the four-step test articulated by the United

States Supreme Court in Pickering v. Bd. of Educ. of Township High Sch. Dist.,

391 U.S. 563 (1968). See Burns v. Bd. of County Comm’rs of Jackson County,

330 F.3d 1275, 1285 (10th Cir. 2003) (citation omitted).

The first three steps of the Pickering test are (1) whether the speech
touches on a matter of public concern, (2) whether the employee’s
interest in commenting on matters of public concern outweighs the
interest of the state in promoting the efficiency of the public service

-19-
 it performs through its employees, and (3) whether the protected
speech was a substantial or motivating factor behind the adverse
employment decision. If these three factors are met, (4) the burden
shifts to the employer to establish that it would have reached the
same decision in the absence of the protected conduct.

Id. at 1285 n.7 (internal citations omitted).

The district court determined that Mr. Orr satisfied the first three steps of

the Pickering test. Aplt. App., Vol. IV, at 952-53 (Dist. Ct. Op.). However, it

ultimately concluded that Defendants carried their burden under the fourth prong

of the Pickering analysis. Therefore, the district court granted Defendants

summary judgment. Id. at 953. Mr. Orr claims the district court’s ruling

regarding Pickering’s fourth prong was improper because it allegedly resolved a

factual dispute in Defendants’ favor. The district court stated that “[i]t is

undisputed that Defendant Vigil would have changed Plaintiff Stephen Orr’s

parental leave to sick leave even if Plaintiff Stephen Orr had not agreed to be an

EEOC witness.” Aplt. App., Vol. IV, at 952-53 (Dist. Ct. Op.). The record

supports the district court’s conclusion.

Mr. Orr did not present evidence sufficient to rebut Ms. Vigil’s claim that

she consistently followed the same pattern when she learned (or knew) of an

officer using compensatory time for FMLA purposes–she would attempt to adjust

the officer’s records to reflect the use of sick leave instead of compensatory leave

or vacation time. The evidence that Mr. Orr presents to rebut Ms. Vigil’s proffer

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is:

(a) that Defendants knew about Stephen Orr’s use of compensatory
time for parental leave at the same time they knew about Cynthia
Orr’s but did not change his time to sick leave until months later,
when he was identified as a witness against them; (b) that changing
his time violated FMLA rules and regulations; (c) that when
Defendant Vigil learned of Stephen Orr’s willingness to testify
against her, she said she would “take care of” him, and ordered him
to change his time the next day; and, (d) that she knew about Officer
Davalos’ use of compensatory time for an FMLA reason before she
changed Orr’s time, but never changed Officer Davalos’ time.

Aplt. Br. at 54. Mr. Orr’s proffer is insufficient to demonstrate a genuine issue of

material fact.

First, Mr. Orr did not submit any evidence to support an allegation that

Defendants knew the underlying purpose for which Mr. Orr had previously taken

leave. 8 We will not entertain the conjecture required to make the leap Mr. Orr

suggests. Second, whether changing Mr. Orr’s records violated FMLA rules and

8
Mr. Orr’s argument that Ms. Vigil had prior knowledge of Mr. Orr’s use of
compensatory time for FMLA purposes is relevant to our inquiry. If supported by
the record, this evidence might demonstrate that Ms. Vigil would not have
attempted to change Mr. Orr’s records had the protected speech not occurred. Mr.
Orr argues in the alternative that Ms. Vigil should have known that he used
compensatory time following the birth of his first child because his wife’s
allegedly improper use of compensatory time, which Ms. Vigil knew about,
occurred during the same period. Mr. Orr has failed to explain why, presuming
this assertion can be supported by the record, this is legally relevant or
demonstrates a genuine issue of material fact. Because of this failure, we do not
consider this argument. See Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir.
1992) (citing Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.
1990) (“A litigant who fails to press a point by supporting it with pertinent
authority, or by showing why it is sound despite a lack of supporting authority or
in the face of contrary authority, forfeits the point.”)).

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regulations is irrelevant to the question of whether Defendants would have acted

the same notwithstanding Mr. Orr’s protected conduct. Third, the evidentiary

support used to bolster his claim (that Ms. Vigil said that she would “take care

of” him) is somewhat misleading. Based on Ms. Orr’s testimony, Ms. Vigil, after

learning of Mr. Orr’s planned testimony regarding previous use of compensatory

time for parental leave, said that she would “take care of those officers” and that

she would “take care of that.” Aplt. App., Vol. II, at 423 (emphasis added).

Although this appears to make an issue out of what Ms. Vigil actually said, this

issue is not material because it is irrelevant to whether Ms. Vigil would have

acted differently but for the protected speech. 9 Fourth, unlike the female

Plaintiffs who did not have an opportunity to do so, Mr. Orr has made no attempt

to rebut the otherwise uncontroverted evidence that Ms. Vigil attempted to correct

Mr. Davalos’ time but was unable to do so for reasons not relevant to this

analysis. Ms. Vigil has presented uncontroverted evidence to demonstrate that

she “would have made the same decision regardless of the protected speech.”

Schalk v. Gallemore, 906 F.2d 491, 494 (10th Cir. 1990). The district court’s

grant of summary judgment on this issue was proper. 10

9
This evidence is relevant to the determination of whether Mr. Orr’s
protected speech was a motivating factor in Ms. Vigil’s decision to alter his
records, an issue decided by the district court and not appealed by either side.
10
We recognize that the last two prongs of the Pickering test are questions
(continued...)

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 For the aforementioned reasons, we affirm the district court’s grant of

Defendants’ motion for summary judgment except as to the female Plaintiffs’

Title VII claim. 11 We reverse the district court’s decision as to that claim.

AFFIRMED in part, REVERSED and REMANDED in part for further

proceedings consistent with this opinion.

10
(...continued)
of fact normally to be decided by the jury, Bass v. Richards, 308 F.3d 1081, 1088
(10th Cir. 2002); however, because the facts relevant to this claim are not
materially disputed, we decide this issue pursuant to the general standards of
summary judgment, see Fed. R. Civ. P. 56(c).

For the reasons stated above, we also affirm the judgment against Mr. and
11

Ms. Orr on their retaliation claims.

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