F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHERYL PALONI,
Nos. 05-2131, 05-2338
Plaintiff - Appellant,
(District of New M exico)
(D.C. No. CIV-03-513 BB/AC T)
v.
CITY OF ALBUQUERQUE POLICE
DEPARTM ENT,
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before M U RPH Y, B ROR B Y, and TYM KOVICH, Circuit Judges.
I. Introduction
Former Albuquerque Police Officer Sheryl Paloni sued the City of
Albuquerque Police Department (“City” or “Department”), claiming various
violations of Title VII, state law constructive discharge, and First Amendment
retaliatory discharge. The district court determined Paloni had not demonstrated
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
a genuine issue of material fact whether she had suffered an adverse employment
action. The district court accordingly ruled the City was entitled to judgment as a
matter of law on Paloni’s federal and state law claims and awarded costs to the
City as the prevailing party. Paloni appeals the district court’s decision on both
the merits and the award of costs. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, this court affirms the district court’s grant of summary judgment on all of
Paloni’s claims and affirms the award of costs to the City.
II. Background
Paloni’s claims arose from an Albuquerque Police Department Internal
Affairs investigation into several officers’ use of firearms during the
apprehension of a bank robber. In an attempt to stop the suspect’s escape, Paloni
and her partner, female officer Paulette M ashburn, shot at the tires of the
suspect’s vehicle with their sidearms. This use of their handguns under the
circumstances known to them at the time of the shooting violated the
Department’s standard operating procedure (“SOP”) 2-52-3-B on the use of
deadly force. 1 Later in the encounter with the suspected robber, a male officer,
Anthony M ontano, also shot at the suspect’s tires with a handgun. Internal
1
The SOP authorized officers to shoot at the tires of a vehicle in order to
“[p]rotect the officer and others from what is reasonably believed to be an
immediate threat of death or serious physical injury” and “[p]revent the escape of
one reasonably believed to have committed a felony . . . .” Aplt. App. Vol. II at
451. Furthermore, the SOP directed “Officers will only use their shotgun or
authorized rifle for this purpose. Sidearms will not be used.” Id.
-2-
Affairs investigators ultimately determined Paloni and M ashburn needed
retraining on the use of deadly force. The investigators did not order similar
retraining for M ontano or other male officers involved in the incident, finding the
information known to M ontano and the others at the time they shot at the vehicle
justified the decision to shoot, even if their use of a handgun rather than a
shotgun or rifle w as contrary to the SOP’s direction. Two of Paloni’s supervisors
approved the Internal Affairs’ retraining recommendation as an appropriate
sanction for the two female officers.
After the Internal Affairs recommendations were released in late June 2002,
Paloni complained publicly and to Chief of Police Gilbert Gallegos (“the Chief”)
about the disparate discipline imposed on M ashburn and herself. In response to
Paloni’s complaints, Chief Gallegos said publicly Paloni needed to “cool her
jets.” In June and again in early August 2002, Paloni asked the Chief to review
the Internal Affairs findings, but it took him until September 5, 2002, to do so.
On September 5 Chief Gallegos sent memoranda to Paloni, M ashburn, and
M ontano in which he “exonerated” each of the officers of any wrongdoing and
classified the shooting incidents as “justifiable.” Gallegos nonetheless ordered all
three officers to be retrained on the “SOP and other matters as determined by the
D irector of Training.” The C hief’s actions came too late, however. On
September 4 Paloni wrote the Chief a letter, again expressing her belief about the
-3-
Department’s discriminatory actions and giving the Chief notice of her intent to
resign on September 19.
In her letter to the Chief and during this litigation, Paloni contends she had
no choice but to resign from the D epartment because the D epartment’s
discriminatory treatment compromised her position with her fellow officers,
undermined the camaraderie she once shared with them, and resulted in her loss
of confidence and security on the job. After exhausting her administrative
remedies under Title VII, Paloni brought suit alleging she suffered disparate
treatment, was retaliated against, and was constructively discharged because of
her gender. She further alleged her public statements about the D epartment’s
discriminatory treatment resulted in retaliation barred by the First Amendment.
III. Discussion
A. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answ ers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c). This court
review s a grant of summary judgment de novo, using the same standard as the
district court. Sandoval v. City of Boulder, 388 F.3d 1312, 1320 (10th Cir. 2004).
W e “view the evidence and draw reasonable inferences therefrom in the light
most favorable to the nonmoving party.” Id. There is a genuine issue of material
-4-
fact only if the nonmovant presents facts that could lead a reasonable jury to find
in the nonmovant’s favor. Simms v. Oklahoma, ex rel., Dep’t of M ental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). If this court
determines there is no genuine issue of material fact, we must still examine
whether the district court’s application of substantive law was correct. Id.
B. T itle V II C laims
Paloni raised several Title VII arguments before the district court. Alleging
disparate treatment, Paloni argued she and M ashburn were ordered to attend
retraining, while M ontano and male officers were not. She contended the
imposition of this discipline alone constituted discriminatory treatment. 2 Paloni
also presented the following evidence of retaliation: William M oe, Paloni’s
former sergeant, testified in a deposition that adverse findings could “potentially”
be tremendously damaging and said in an affidavit that, after Paloni complained
about unequal treatment, the Chief spoke out against her; fellow officers looked
condescendingly at Paloni when they saw her at a m all and Officer M ontano said
“W ell, there’s Sheryl Paloni;” and Officer Ron Brown testified in a deposition to
hearing unidentified officers at the police gym criticizing Paloni and M ashburn.
Paloni argued her fellow officers lost confidence in her and saw her as a
2
The district court recognized a disagreement between the parties about
whether retraining constituted discipline; the court decided, however, it did not
need to resolve the issue because even if retraining were discipline, this type of
discipline did rise to the level of an adverse employment action.
-5-
troublemaker, which could have endangered her in the field and, therefore,
constituted retaliation for her complaints. Paloni also testified, however, that
members of her own squad treated her well and it was only members of the
Repeat O ffender U nit w ho acted poorly towards her.
As the district court correctly stated, to make a prima facie case of
disparate treatment Paloni had to show (1) she is a member of a protected class;
(2) she suffered an adverse employment action; and (3) similarly situated
employees received treatment different from Paloni’s. Trujillo v. Univ. of Colo.
Health Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). To survive summary
judgment on her retaliation claim, Paloni had to demonstrate (1) she engaged in
“protected opposition” to discrimination; (2) she suffered an adverse employment
action during or after her protected opposition; and (3) there was a causal
connection between the adverse employment action and her protected opposition.
-6-
Id. 3 Thus, as the district court aptly noted, the finding of an adverse employment
action is a prerequisite to both types of Title VII claims.
An adverse employment action is one which constitutes “a significant
change in employment status, such as hiring, firing, or failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998). The district court found Paloni retained her pay, benefits, and rank
despite being ordered to attend retraining. The court also found no evidence of an
adverse effect on future promotion opportunities. After a review of this circuit’s
precedent, the district court concluded a single order that an officer be retrained
on police procedures could not constitute an adverse employment action.
The district court, additionally, found no evidence to support Paloni’s
contentions that her colleagues’ loss of confidence in her and her loss of
confidence in herself constituted an adverse employment action for Title VII
3
Although the issue had not been settled prior to the district court’s
decision, the district court cited to cases from other circuits to state that an
objective standard applies to determine whether an employer’s action was
materially adverse. The Supreme Court recently definitively ruled that an
objective standard applies to Title VII retaliation claims. Burlington N. & Santa
Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006). “[A] plaintiff must show that
a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. (quotation
omitted). The district court thus correctly applied an objective standard when
considering Paloni’s claims.
-7-
purposes. Even employing this circuit’s case-by-case approach, Hillig v.
Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004), the court concluded Paloni’s
proffered evidence was insufficient to raise a genuine issue of material fact
whether Paloni sustained a “significant change” in her employment status as the
finding of an adverse employment action requires. 4
The district court similarly rejected Paloni’s claim that her retirement was a
constructive discharge amounting to an adverse employment action. See Tran v.
Trs. of State Colls. in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004). “A
constructive discharge occurs when a reasonable person in the employee’s
position would view her working conditions as intolerable and would feel that she
had no other choice but to quit.” Id. The only Department action against Paloni
was the retraining order. The district court determined a reasonable police officer
in Paloni’s position would not have “felt she had no choice but to resign simply
because she had been found in violation of the deadly-force SOP and been
ordered to undergo retraining on that subject.” Paloni could not demonstrate an
actual loss of confidence or animus among other officers which could have made
the situation intolerable. The district court, accordingly, found no constructive
discharge for Title VII purposes in this case.
4
This court also notes other evidence in the record (not cited by the district
court) shows Paloni was temporarily promoted to acting sergeant on several
occasions before and after the shooting incident. At the very least, this tends to
show her superiors’ confidence in her w as not eroded by the shooting incident.
-8-
Having reviewed the parties’ briefs and the record, this court determines
the district court properly granted summary judgment. Paloni failed to
demonstrate Department actions adversely affected the terms and conditions of
her employment or potential for future employment. She also failed to show her
situation was so intolerable that she had no choice but to resign, as a constructive
discharge claim requires. Paloni, therefore, did not present any tangible evidence
of an adverse employment action. This court accordingly affirms the district
court’s grant of summary judgment on Paloni’s Title VII claims for substantially
the reasons set out in the district court’s April 28, 2004, memorandum opinion
and order.
C. State Law Constructive Discharge Claim
The district court relied on its Title VII analysis when addressing Paloni’s
state law claims. 5 It noted New M exico adopted Tenth Circuit Title VII standards
in adjudicating state law constructive discharge claims. Gorm ley v. Coca-Cola
Enters., 109 P.3d 280, 282–83 (N.M . 2005). Because Paloni did not suffer an
adverse employment action sufficient to prove constructive discharge under Title
VII, the district court reasoned, her state law claim must fail as well.
5
In the district court, Paloni alleged violations of state law on both
constructive discharge and retaliatory discharge grounds. Before this court,
Paloni raises only the constructive discharge claim.
-9-
For the reasons set out in our discussion of constructive discharge under
Title VII and for substantially the reasons stated by the district court in its
analysis, this court affirms the district court’s April 28, 2004, grant of summary
judgment on Paloni’s state law claim.
D. First Amendment Retaliation Claim
Finally, in a separate memorandum opinion, the district court rejected
Paloni’s First Amendment claim of retaliation and granted summary judgment to
the City. To demonstrate an infringement of her First Amendment rights, an
employee must show: (1) the speech involved a matter of public concern; (2) the
employee’s interest in speaking out outweighs the employer’s interest in
regulation; (3) the speech was a substantial motivating factor behind the
employer’s decision to take an adverse employment action against the employee.
Baca v. Sklar, 398 F.3d 1210, 1218–19 (10th Cir. 2005). 6 The district court
correctly noted an employer’s actions can satisfy the adverse employment action
requirement in the First Amendment context even if the same action is
insufficient to satisfy the adverse employment action requirement under Title VII.
Id. at 1220.
6
Only when an employee proves these three elements does the burden shift
to the employer to show, using a preponderance of the evidence standard, “it
would have reached the same decision . . . even in the absence of the protected
conduct.” Baca v. Sklar, 398 F.3d 1210, 1219 (10th Cir. 2005) (citation omitted).
-10-
For the purposes of summary judgment, the City conceded Paloni’s speech
to the newspaper was on a matter of public concern and Paloni’s interest in
speaking outweighed the police department’s interest in regulation. The district
court, therefore, had only to determine whether the Chief’s conduct constituted an
adverse employment action under First Amendment jurisprudence and, if so,
whether this conduct was substantially motivated by Paloni’s speech.
The district court identified the Chief’s actions as: (1) saying Paloni
should “cool her jets” after Paloni released to the media a letter she had written to
the C hief; (2) failing to issue his decision about the Internal Affairs
recommendations until after Paloni submitted a resignation letter; and (3)
exonerating Officers Paloni and M ashburn while still ordering these two officers,
plus Officer M ontano, to attend retraining on the SO P. Applying these findings
to the spectrum of circumstances addressed in Tenth Circuit case law, the district
court determined, as a matter of law, the Chief’s conduct was not actionable as a
First Amendment violation because Paloni failed to demonstrate an adverse
employment action. The court thus found it unnecessary to address the causal
connection between Paloni’s speech and the Chief’s actions.
In the First Amendment context, appellate courts are obligated to
independently examine the whole record to ensure the plaintiff’s right to free
expression was not abridged. Belcher v. City of M cAlester, 324 F.3d 1203, 1206
(10th Cir. 2003). Based on this court’s independent reading of the record, the
-11-
district court correctly identified the Chief’s actions. Taking these facts in a light
most favorable to Paloni, as we are obligated to do, this court must conclude the
Chief’s conduct did not constitute an adverse employment action even under the
relaxed First Amendment standard. Paloni, therefore, cannot proceed with her
First Amendment claim. This court accordingly affirms the district court’s grant
of summary judgment to the City for substantially the reasons articulated by the
district court in its April 15, 2005, memorandum opinion.
IV. Conclusion
For the reasons set out above, this court affirm s the district court’s grant of
summary judgment to the City for substantially the reasons articulated by the
district court. B ecause w e affirm the district court’s decision on the merits, we
also affirm the award of costs to the City.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
-12-