Women made to use sick time for family leave can sue under Title VII.

The Tenth Circuit has reinstated the sex discrimination claims of two female Albuquerque police officers who were forced to use sick time for leave they took under the Family and Medical Leave Act (FMLA), while men taking FMLA leave were allowed to use compensatory time. The appeals court reversed the district court's dismissal of the women's claims under Title VII and the New Mexico Human Rights Act, finding that the sick-leave requirement constituted an adverse employment action. (Orr v. City of Albuquerque, 417F.3d 1144 (10th Cir. 2005).)

"[The plaintiffs] 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," wrote Judge Monroe McKay for the court.

When Cynthia Orr became pregnant, she arranged with a supervisor to use accrued compensatory time and vacation leave after the birth and to work some part-time hours. Albuquerque Police Department (APD) policy states that employees can carry only a certain number of compensatory hours, and they must use up any hours accrued over the limit before they can work more overtime (and accrue more comp hours). Sick leave, however, can be stockpiled and even used toward early retirement.

When APD Personnel Director Mary Beth Vigil found out that Orr was using vacation and comp time during her leave, she changed Orr's personnel records to indicate that she used sick leave for the time off and said it was APD policy that only sick hours could be used for leave taken under FMLA. Orr was not paid for the part-time hours that she worked during her leave.

Orr's husband, Stephen, also an APD officer, used two weeks' comp time as FMLA leave. Later, when this came to Vigil's attention in an Equal Employment Opportunity Commission hearing after the women filed a complaint, Vigil said she would change his records to reflect sick leave, but the change was never made.

Patricia Paiz, another officer who tried to use compensatory time for FMLA leave after the birth of her child, was also informed by Vigil that her records would be changed to reflect the use of sick leave. During a hearing on the matter, a male deputy chief admitted using comp time for FMLA purposes in the past, whereupon Vigil said she would also change his records to reflect sick leave. Again, the change was not made. To avoid using up all her sick leave, Paiz returned to work early.

The Orrs and Paiz sued under Title VII and the New Mexico Human Rights Act, and the Orrs also filed claims for due process and First Amendment violations. On appeal, the Tenth Circuit upheld dismissal of Stephen Orr's First Amendment claim of retaliation but allowed the women's discrimination claims to go forward.

To make a prima facie claim of discrimination, the female plaintiffs needed to show membership in a protected class, adverse employment action, and disparate treatment among similarly situated employees. The district court had said that as pregnant women, they met the first part of the test, but not the others.

The Tenth Circuit found that financial losses can signal significant change in employment status, and that these losses "take a variety of forms, including shifts in compensation or benefits." The court identified several adverse employment actions: The plaintiffs' accumulated sick leave was severely diminished so they couldn't use it for future illnesses or early retirement; they weren't able to use compensatory time that their supervisor "specifically authorized to be accumulated for this very purpose"; and they were effectively prevented from working more overtime. In addition, the court said, failing to pay Orr for the part-time work she did was a clearly adverse action.

When the district court held that the plaintiffs were not treated differently than similarly situated employees, its "framing of the analysis of this element put the cart before the horse," wrote McKay, citing a "conflation of the issues" resulting in an elevated burden on the plaintiffs.

The APD argued that it had a justifiable business reason for the actions and would have treated the men the same had it known of their use of comp time for FMLA leave. But "because of the way the district court structured the analysis, the female plaintiffs were denied an opportunity to fully address" whether the department's business reason was a pretext for discrimination, wrote McKay. The evidence that Stephen Orr and the deputy chief were able to use comp leave "is sufficient to raise an inference of discrimination."

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