Court Opinions: 10th Circuit Court of Appeals Opinion for May 23

The 10th Circuit Court of Appeals

By Jess Brovsky-Eaker and Star Ilalaole

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Ortiz v. Bank of Labor

Maira Ortiz appealed a district court’s grant of summary judgment to the Bank of Labor on her employment discrimination claims. Specifically, Ortiz in July 2021 claimed the bank committed pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 and disability discrimination in violation of the Americans with Disabilities Act.

As to the ADA claim, Ortiz “concede[d] that the judges in the District of Kansas have held that pregnancy by itself is not a disability under the ADA,” so she was asserting the claim “to preserve [it] for a possible appeal to the Tenth Circuit.” She included no argument about this claim and the district court accepted Ortiz’s concession and accordingly granted summary judgment in the Bank’s favor on the ADA claim. 

Ortiz worked for the bank at a small branch in Kansas City, Kansas, connected to a 7-Eleven. The 7-Eleven’s restrooms were also the bank employees’ restrooms, but Ortiz didn’t like using those restrooms because the 7-Eleven didn’t clean them well. She preferred to use the restroom at a McDonald’s just across the parking lot. The bank expressed no concern with this until October 2019, when the branch supervisor, Charlotte Hayes, told Ortiz the bank requires two employees to be present in the branch whenever it is open.

But this rule created a problem for Ortiz, for two reasons. First, she was pregnant at the time (which Hayes had known since the previous month). According to the court opinion, her pregnancy resulted in a more-frequent urge to use the restroom. Second, Ortiz and another employee usually opened the branch at 7:15 a.m., but a third employee often didn’t arrive until 9:45 or 10:00 a.m. So, every morning she faced a stretch of more than two hours when she couldn’t leave to use the McDonald’s restroom. She could still use the 7-Eleven restroom at any time.

Also in October 2019, Ortiz’s feet started to swell when standing, which she attributed to her pregnancy. To manage the swelling, she began sitting on a small folding chair that fit in her cubicle, except when helping a customer. But Hayes soon took the folding chair away and informed Ortiz of a new rule that the chairs used in the drive-through window area were the only authorized chairs. Ortiz said those chairs wouldn’t fit in her cubicle and she couldn’t carry them back and forth from the drive-through window, but Hayes ignored her. 

On November 1, 2019, Ortiz and Hayes were on duty together. As Hayes was restocking her teller drawer with $25 in pennies she got from the branch vault, she forgot to document that withdrawal. At the end of the shift, Ortiz and another employee counted the cash in the vault to make sure it matched documented additions and subtractions and noticed the $25 difference. Ortiz asked if anyone had documentation they had failed to submit, but Hayes said nothing and the other employees said “no.” Ortiz then used white-out to cover over the starting cash amount and wrote in a new figure that was $25 lower. 

This modification of the vault log is what the bank calls “force balancing,” or “the act of modifying a Bank record, such as a vault log or teller log, to avoid a cash difference.” At least three different bank policy documents list force balancing as a terminable offense.

Later that same day Hayes recognized the $25 discrepancy, attributed it to her own failure to document taking money from the vault, and reported it to the branch manager, Mary Moulin. On Nov. 4 Moulin and Hayes met with Ortiz to discuss the incident. Hayes admitted that her oversight caused the vault log to be out of balance. Ortiz denied intentionally force-balancing the log, and she said “pregnancy brain” explained her actions. The bank terminated Ortiz on Nov. 18, 2019. The bank told Ortiz she was being terminated because she had force balanced the vault log, in violation of multiple bank policies.

Ortiz filed a lawsuit in July 2021, asserting multiple employment discrimination claims including not allowing her to use the McDonald’s restroom until a third employee arrived, not allowing her to use the folding chair in her cubicle and terminating her for force balancing the vault log.

The district court ruled that Ortiz’s theories based on restroom access and chair use failed because neither of those count as an adverse employment action. As to her termination, the court ruled that Ortiz had not presented enough evidence from which a jury could conclude that the bank’s proffered explanation was pretextual. The district court granted summary judgment in the bank’s favor on all of Ortiz’s Title VII theories.

To support an employment discrimination claim, a Kansas City, Kansas, panel of the 10th Circuit Court of Appeals said Ortiz needed to provide evidence of “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.” Adverse employment actions, according to the opinion, can include “acts that carry a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.” But the court said it “will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.”

As to her claims regarding the McDonald’s restroom, Ortiz emphasizes what she views as the “unique factors” in her case, namely, her pregnancy required more frequent trips to the restroom. Ortiz asserted the bank’s policy about leaving the branch created “a significant risk of humiliation,” and a risk of physical discomfort and amounted to an adverse employment action. But the 10th Circuit found that case law regarding risk of humiliation requires “a concomitant harm to future employment prospects.” The appellate court found Ortiz didn’t provide anything in the record suggesting this was a likely result. 

The district court viewed Ortiz’s claim about the chair in her cubicle as another instance of the bank depriving her of something she preferred, not total deprivation. Ortiz asserted Hayes wouldn’t allow her to use a chair that fit in her cubicle, and would only allow her to use a chair that she couldn’t carry and that wouldn’t fit in her cubicle anyway. Ortiz testified she “had to stand” because of this. Thus, Ortiz asserted a claim of total deprivation, not deprivation of a preferred alternative.

Ortiz’s argument about this element of her claim comprised a single sentence asserting that inability to use a chair was an adverse employment action. She offered no supporting authority, nor even any argument that it was self-evidently so. According to the opinion, there is no case law treating this sort of working condition as an adverse employment action.

On appeal, Ortiz’s argument highlighted “acts that carry a significant risk of humiliation,” while inserting a risk of physical discomfort into that analysis, without citation. But she again ignores the requirement of “a concomitant harm to future employment prospects.” Thus the district court concluded Ortiz failed to carry her burden to show she suffered an adverse employment action.

As to Ortiz’s termination, the district court went directly to the pretext analysis (the third step of the McDonnell Douglas framework) and held Ortiz failed to present sufficient evidence that the bank’s proffered justification — force balancing the vault log, in violation of multiple bank policies — was a pretext for discrimination. On appeal, Ortiz argued she presented three pieces of circumstantial evidence from which a jury could find pretext.

First, Ortiz said Hayes was a similarly situated, not pregnant employee, and Hayes also violated bank policy (failing to document withdrawing money from the vault), but Hayes wasn’t terminated. But bank policy doesn’t list Hayes’s offense as terminable. Ortiz pointed to a bank policy that says “[m]aking or causing false entries to the books or records” is a terminable offense, but Hayes didn’t make or cause a false entry in the books or records. Her failure to document caused the vault to be out of balance, but she didn’t attempt to cover over that difference with false record-keeping entries. The 10th Circuit determined Ortiz’s conduct falls within the latter category and agreed with the district court that Hayes wasn’t similarly situated.

Second, Ortiz noted the force-balancing incident occurred on Nov. 1 but the bank didn’t terminate her until Nov. 18. She argued that the bank’s delay is inconsistent with the seriousness it purportedly attributed to the offense. In support, she cited deposition testimony from Moulin who was asked why Ortiz was allowed to continue working between Nov. 1 and Nov. 18. Moulin responded, “I can’t answer that.” Ortiz didn’t say what reasonable inferences a jury could draw from that answer. And Moulin’s testimony immediately following this statement identified a bank employee named Mary Kearns as the person authorized to suspend an employee. 

Third, in Moulin’s deposition testimony, she described force balancing as “an intentional act” that is “almost like theft.” Ortiz said that, based on this testimony, a jury could conclude the bank’s explanation for her termination was false because she told Moulin her actions were the result of “pregnancy brain,” not intentional, and no money was actually missing from the vault. The 10th Circuit said it didn’t see the connection between Moulin’s views about force balancing, Ortiz’s description of her own actions and a reasonable inference that the bank was lying about its reasons for terminating Ortiz. So the appeals court agreed with the district court that there is nothing here “to suggest that [the Bank] did not view [force balancing] as the true reason for that decision.”

Because Ortiz’s only remaining item of evidence was that Moulin didn’t know why the person with the authority to suspend Ortiz didn’t do so between Nov. 1 and Nov. 18, the 10th Circuit held it didn’t raise a genuine issue of pretext. 

The court affirmed the district court’s judgment.

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