Bird v. West Valley City, 832 F.3d 1188

Background

Karen Bird worked at West Valley City Animal Shelter from 2001 until her termination in November 2011; Kelly Davis was her long-time supervisor and the pair developed a protracted interpersonal feud.
Over many years multiple employees (mostly women) complained about both Bird and Davis for bullying, yelling, and disruptive conduct; Human Resources investigated both in 2005, 2009, and 2011 but did not formally discipline Davis.
In November 2011 Bird filed a formal complaint against Davis complaining of belittling and harassment (she did not allege gender discrimination). Shortly thereafter she received reprimands from Davis for alleged unauthorized overtime.
HR conducted a broad investigation; its findings included numerous derogatory comments about Bird and mixed comments about Davis. Layne Morris (Davis’s supervisor) held a pre-disciplinary meeting and terminated Bird for insubordination and failure to be courteous/cooperative.
Bird appealed administratively (HR director and Employee Appeals Board) and lost, then sued West Valley City and Davis alleging Title VII gender discrimination and hostile work environment, § 1983 Equal Protection, § 1983 First Amendment retaliation (for alleged leaks to the press), and Utah contract/breach of good faith based on a Workplace Violence policy and alleged anti-retaliation practice.
The district court granted summary judgment to defendants on all claims; the Tenth Circuit affirmed on Title VII, § 1983 Equal Protection, and contract claims, but reversed and remanded Bird’s § 1983 First Amendment retaliation claim in light of Heffernan.

Issues

Issue	Bird's Argument	West Valley City's Argument	Held
Title VII — gender discrimination (disparate treatment)	City had a pattern of tolerating Davis’s abuse of women and firing/forcing out women who complained; Bird was fired a month after complaining, implying sex-based motive	Termination was for legitimate, nondiscriminatory reasons: long-standing insubordination to Davis and discourteous conduct toward staff; reasons were honest and supported by record	Affirmed — Bird established prima facie but failed to show pretext; reasons were credible and viewed as honestly held by decisionmaker
Title VII — hostile work environment	Davis’s bullying created an abusive workplace; pattern of female complaints shows gender animus	Most abusive acts were facially gender-neutral; proffered gender-based evidence was vague or not known to Bird at the time	Affirmed — disputed severity/pervasiveness exists, but insufficient evidence of gender-based animus to survive summary judgment
§ 1983 — Equal Protection (municipal liability)	City’s custom/policy of ignoring women’s complaints and punishing complainants constituted intentional discrimination	No intentional gender-based action; City acted for nondiscriminatory reasons; municipal liability requires underlying constitutional violation and proof of intent	Affirmed — Bird cannot show intentional discrimination; therefore no basis for municipal § 1983 liability
Utah contract & covenant claims (implied-in-fact contract)	Handbook’s Workplace Violence policy and City’s pronounced anti-retaliation practice created implied contractual duties; Employee Acknowledgement supports mutual obligations	Handbook contains a broad, conspicuous disclaimer that policies do not create a binding contract; disclaimer bars implied-in-fact contract claims	Affirmed — disclaimer precludes implied-in-fact contract; without contract, no breach of covenant claim
§ 1983 — First Amendment retaliation	Even though Bird denies leaking, City believed she leaked to press about euthanasia; under Heffernan she can sue if adverse action was motivated by the employer’s (mistaken) belief that she engaged in protected speech	District court held Bird failed because she did not actually speak; defendants argued lack of protected activity	Reversed and remanded — Heffernan controls: a plaintiff may challenge adverse action motivated by the employer’s (incorrect) belief of protected speech; case returned to determine remaining elements (causal motivation and chilling injury)

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for circumstantial discrimination)
Heffernan v. City of Paterson, 136 S. Ct. 1412 (employer’s mistaken belief that employee engaged in protected political activity can support a First Amendment retaliation claim)
Meritor Sav. Bank v. Vinson, 477 U.S. 57 (hostile work environment doctrine under Title VII)
Harris v. Forklift Sys., Inc., 510 U.S. 17 (subjective and objective standards for hostile work environment)
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (limits municipal liability under § 1983 to official policy, custom, or final policymaker actions)
Chavez v. New Mexico, 397 F.3d 826 (10th Cir. standard on severe or pervasive harassment and combining gender-neutral and gender-based evidence)
O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. on context where neutral conduct may support inference of gender animus)