Forcing Pregnant Officer To Use Sick Leave Instead Of Comp Time Subjects Department To Civil Rights Lawsuit

Cynthia Orr is a police officer with the City of Albuquerque, New Mexico. After 11 years with the Albuquerque Police Department, Orr, pregnant with her first child, devised a way to maximize her work schedule to best accommodate the birth of her child. Orr wanted to take several months of parental leave after her child was born.

To facilitate this leave, Orr planned to use a combination of accrued compensatory time off and vacation time in addition to working part-time. Orr did not want to use sick leave because, under the Department’s policies, sick leave can be used towards early retirement while other types of leave cannot. In addition, Orr’s desire to use comp time was an effort to use the excess comp time she had accumulated; employees could not work additional overtime until they decreased their compensatory time.

Orr initially received permission from her supervisor to institute her plan. After the birth of her child, Orr reported the first three weeks of her time off as covered by comp time. During the fourth week, she began working part-time in conjunction with using compensatory time off.

Everything went according to plan until the Department’s personnel director learned of Orr’s actions. The personnel director decided that because of Orr’s pregnancy, she could not work part-time and could not use compensatory time for her parental leave. The personnel director relied on a Department policy which purportedly required that only sick leave could be used when leave was taken for any FMLA purpose, which included parental leave.

Ultimately, Orr was forced to use sick leave and was not paid for the part-time work she performed during this period.

Both Orr and another officer, Patricia Paiz, filed complaints with the Equal Employment Opportunities Commission alleging that the Department’s practices with respect to parental leave violated Title VII of the Civil Rights Act by discriminating on the basis of their pregnancy. When a lower federal court dismissed the lawsuit, Orr appealed to the federal Tenth Circuit Court of Appeals.

The Appeals Court reinstated the lawsuit. The Court found that Orr and Paiz could state a “cause of action” because of the fact that their benefits were “significantly altered.” The Court reasoned that any action which deprives an individual “of compensation which he otherwise would have earned clearly constitutes adverse actions for purposes of Title VII.”

In the words of the Court, “because Orr and Paiz were obligated to use their sick leave, their leave reserves for future illnesses or early retirement were seriously diminished. In addition, being required to use sick leave was problematic because it prevented them from using their accumulated compensatory time, which they had received permission to accumulate, and were also ordered to decrease. Their inability to use compensatory time also had the effect of preventing them from working additional overtime. These requirements were sufficient to demonstrate adverse employment action necessary to state a claim under Title VII.”

Orr v. City of Albuquerque, 2005 WL 1806437 (10th Cir. 2005).

This article appears in the September 2005 issue