05-2309 / 05-2317 - Judy K. Kelley v. City of Albuquerque, Appellant (Cross-Appeals)
U.S. Tenth Circuit Court of Appeals
(March 7, 2007)
Briefs
Briefs require requires Adobe Acrobat Reader.
- Opening Brief of Appellant (366 KB PDF)
- Appellee's Reply Brief and Brief on Cross Appeal (3.4 MB PDF)
- Reply Brief of Appellant and Response Brief on Cross-Appeal (226 KB PDF)
Case Summary (prepared at Washburn Law)
Procedure:
Kelley (Appellee) brought a claim against the City of Albuquerque, Martin Chavez, and Robert White (Appellant), asserting (1) a claim of race discrimination, sex discrimination and retaliation under Title VII and the New Mexico Human Rights act; (2) a class-of-one claim under the equal protection clause; and (3) a conspiracy claim under 42 U.S.C. § 1983. The district court granted appellant's motion for summary judgment on the equal protection and the conspiracy claims. Appellee agreed not to pursue the race and sex discrimination claims. The retaliation claim survived summary judgment. In the court's opinion, a question of fact existed as to whether Appellee fell under the "personal staff" exception under 42 U.S.C. § 2000(f).(1) This question was not submitted to the jury. Ultimately, the jury returned a verdict in favor of the appellee on the retaliation claim and $372,985.90 was awarded in damages. This appeal follows.
Facts:
Kelley was employed as an assistant attorney for Albuquerque in 1985. Her immediate supervisor was Robert White, the City Attorney. The City Attorney is a department director who the mayor selects and the city council confirms. City attorneys provide legal advice on all issues concerning development and implementation of city policy and advise all of the city's policymakers, including the mayor, city council, department directors, boards, and commissions.
Martin Chavez was elected Mayor for the City of Albuquerque in 1993. He served a four year term until 1997. From 1997 through 2001, Chavez practiced law until he was elected Mayor again in 2001. In 2000, Kelley, acting in her role as assistant city attorney, and Chavez, then a practicing private attorney, were on opposing sides of two Equal Employment Opportunity Commission (EEOC) mediation sessions. These sessions involved a claim of discrimination unrelated to the case. The mediation process failed and a settlement was not reached. Although the specific facts that led to the mediation breakdown are disputed, both parties concede that tempers flared.
In the summer of 2001, after the announcement that Chavez was running for Mayor, Kelley transferred to the Human Resources Department to continue her work in the EEO area. After assuming office, Chavez requested letters of resignation from all assistant attorneys. Chavez stated the reasoning behind this request was to address a $50 million budget deficit. Kelley submitted her letter of resignation on November 7, 2001, which was accepted by Chavez on December 3, 2001, and was put into effect on January 1, 2002. Kelley subsequently filed suit.
Issues:
- Whether the district court was correct in denying summary judgment on the question of whether Title VII's "Personal Staff" exception applied to Appellant as assistant city attorney.
- If this exemption does apply, should it have been submitted to the jury?
- Was Appellee's participation as a defense attorney in the EEOC mediation a "protected activity" which could form the basis of a retaliation claim under Title VII?
- Was there sufficient evidence to establish a casual connection between the alleged protected activity and any adverse action?
Appellant's Arguments:
- Issue 1: Appellant argues that the district court erred in denying summary judgment on this issue. Kelley, in her role as assistant city attorney, qualified as personal staff. The trial court should have held that the exception applied and granted summary judgment.
- Issue 2: The district court found that there was a genuine issue of material fact and should have been submitted to a jury to determine whether the personal staff exemption was applicable.
- Issue 3: Kelley's participation as a defense attorney in the EEOC mediation was not a protected activity which could form the basis of a retaliation claim under Title VII or the New Mexico Human Rights Act.
- Issue 4: There was insufficient evidence to establish a casual connection between the alleged protected activity and any adverse action. Under the facts presented at trial, there can not be causation as a matter of law.
Appellee's Reply and Cross Appeal:
- Issue 1 and 2: Kelley was not a part of the city attorney's office when she was terminated; rather she was working for the Human Resources Department. Furthermore, Assistant City Attorneys under the City Charter and Ordinances are appointed by the Mayor and thus do not, as a matter of law, meet the personal staff exemption. Also, Kelley was subject to the civil service laws of the city. The New Mexico Human Rights Act does not have an exemption for personal staff. Finally, to qualify for personal staff exemption, the individual must be chosen by the elected official and have an intimate and sensitive relationship with the official.
- Issue 3: Both the statutory language and the legislative intent of the statutes support the finding that Kelley's participation as a defense attorney in the EEOC mediation was a protected activity.
- Issue 4: There is sufficient evidence to establish a casual connection between protected activity and adverse action.
Cross-Appeal:
Appellee's cross-appeal challenges the district court's grant of summary judgment on the equal protection and conspiracy claims. More specifically, Kelley's equal protection rights were violated by the arbitrary manner in which Chavez terminated her employment with malignant animosity.
Footnote
1. Under 42 U.S.C. 2000(f), the term "employee" means, "an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision."
