## Facts

- Cynthia Orr and Patricia Paiz were Albuquerque Police Department officers who sought leave in 2000 for the births of their children, invoking rights protected by the Family and Medical Leave Act (FMLA).
- After supervisors approved the pregnancy-related leave, the department’s personnel director, Mary Beth Vigil, allegedly required Orr and Paiz to exhaust accrued sick leave before using vacation leave and prohibited them from using accrued compensatory time during maternity leave.
- Orr and Paiz presented evidence that other employees taking FMLA leave for non-pregnancy reasons (including medical treatment and family-care leave) were allowed to use compensatory time and vacation time before using sick leave.
- The leave-order requirements had economic consequences because sick leave could be banked toward early retirement, while vacation and compensatory time were capped; using sick leave first and barring compensatory time could reduce retirement-related benefits and affect overtime opportunities.
- After EEOC activity began, the City later entered a union agreement (2001) allowing compensatory time for FMLA purposes and removing the sick-leave-first requirement.
- Orr and Paiz sued the City of Albuquerque and Vigil for pregnancy discrimination under Title VII as amended by the Pregnancy Discrimination Act (PDA), and under a parallel state statute; the district court granted summary judgment for defendants on the discrimination claims.

## Issues

1. Whether a reasonable jury could find that the City and Vigil intentionally discriminated based on pregnancy by imposing more burdensome leave-use conditions on maternity leave than on comparable non-pregnancy FMLA leave.
2. Whether plaintiffs produced sufficient evidence of pretext under the McDonnell Douglas framework to defeat summary judgment.

## Decision

- The Tenth Circuit reversed the grant of summary judgment and remanded for trial.
- The court held the record contained sufficient evidence for a reasonable jury to find defendants’ asserted neutral-policy explanation pretextual and to infer discriminatory animus based on pregnancy.
- The court relied on evidence of disparate treatment of similarly situated, non-pregnant employees taking FMLA leave, inconsistencies between asserted policy and actual practice, and later modification of the leave rules.

## Legal Principles

- Pregnancy discrimination claims under Title VII (PDA) may proceed under the McDonnell Douglas burden-shifting framework when supported by circumstantial evidence.
- The PDA requires pregnant employees to be treated the same as non-pregnant employees similar in their ability or inability to work for employment-related purposes, including leave administration.
- A plaintiff can show pretext by identifying weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s stated reason such that a reasonable factfinder could deem it unworthy of belief and infer discrimination.
- At summary judgment, courts do not weigh credibility; the question is whether the evidence permits a reasonable jury to find discrimination.

## Conclusion

Because Orr and Paiz presented comparator evidence and other proof casting doubt on defendants’ claim of a uniformly applied leave policy, the Tenth Circuit held a jury could find pretext and pregnancy-based disparate treatment, requiring trial rather than summary judgment.


Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008)