                                                                       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       This order and judgment is not binding precedent, except under the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




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