Kelley v. City of Albuquerque (375 F. Supp. 2d 1183, 2004)

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion for Summary Judgment, filed February 2, 2004 (Doc. 31 and 32). The primary issue is whether Plaintiff Judy K. Kelley’s participation as a defense lawyer in a mediation involving Title VII claims is protected activity under the statute. The Court held a hearing on this matter on July 12, 2004, and orally ruled that Title VII’s plain language compelled the Court to find Kelley’s actions protected conduct. Consistent with the Court’s ruling at the hearing on this motion and the reasons for that ruling given at the time of the hearing, the Court will deny the Defendants’ motion in part and grant the motion in part.

FACTUAL BACKGROUND

The City of Albuquerque (“the City”) hired Kelley as an assistant city attorney in May, 1985. See First Amended Complaint ¶ 7, at 2, filed Sept. 11, 2003 (Doc. 18). The City employed Kelley for sixteen plus years through four administration changes. Kelley was an assistant city attorney under Mayors Harry Kinney, Ken Schultz, Louis Saavedra, Defendant Martin J. Chavez (first administration), and Jim Baca. See Declaration of Judy K. Kelley, Additional Facts ¶ 4, at 6-7 (executed February 9, 2004)(hereinafter “Kelley Decl. Add. Facts”).

I. STRUCTURE OF THE CITY ATTORNEY’S OFFICE.

A. AUTHORITY TO MAKE PERSONNEL DECISIONS AS TO UNCLASSIFIED EMPLOYEES.

Kelley alleges that only the Chief Administrative Officer (“CAO”) can terminate a city attorney’s employment. See City of Albuquerque Ordinance §§ 3-1-2(B),(C)(2),(C)(3); id. § 3-l-6(D). The Albuquerque Charter prohibits the mayor from being involved in personnel matters except unclassified positions “directly responsible to the Mayor.” Charter of the City of Albuquerque, Article X, § 2(b)(“[T]he Mayor is prohibited from becoming involved in the hiring, promotion, demotion, or discharge of any city employee except those personnel hired for unclassified positions directly responsible to the Mayor.”). Although Chavez testified that he was not sure if the department heads have the power to hire and fire unclassified employees, see Martin J. Chavez’ Deposition at 59:1-7 (taken December 17, 2003)(hereinafter “Chavez Depo.”); id. at 20:24 — 21:6, he also stated that he believed the City Attorney has to consult with him before hiring and firing assistant city attorneys, see id. at 22:1-25, 26:12-18. Moreover, when asked if an assistant city attorney “serve[d] at the pleasure of the CAO and not the Mayor,” Chavez responded that he did not know the technical answer to that question, but that “we all serve at the pleasure of the mayor.” Chavez Depo. at 59:1-25. Chavez testified that he does not expect assistant city attorneys to “support” his philosophies, but only to work hard; however, he does expect department directors to “support” him. Chavez Depo. at 59:12-25; id. at 28:6-11; id. at 32:23-25; id. at 37:11-20.

The mayor hires the City Attorney with the city council’s advice and consent. See Charter of the City of Albuquerque, Article V, § 4(d). The Charter provides:

The Mayor shall: .... (d) With the advice and consent of the Council, hire or appoint the City Attorney, an officer to administrator the merit system, and all other senior administrative or cabinet level officers of the city, including without limitations any chief, assistant or deputy administrative officers, and specify the duties and responsibilities of those officers; ....

Id. See City of Albuquerque Ordinances § 2-7-2-3 (“The City Attorney shall be appointed by the Mayor with the advice and consent of the Council.”). The mayor also hires directors of all city departments. See Charter of the City of Albuquerque, at Chapter V, § 4(b); City of Albuquerque Ordinances § l-l-5(B)(defining “Mayor” as “[t]he elected officer of the city who exercises administrative control and supervision over the city and hires or appoints directors of all city departments ...”).

Under the City Personnel Ordinance, assistant city attorneys are unclassified employees of the City' — which are at-will employees. See City of Albuquerque Personnel Rules and Regulations 306.2(D) at 300-11 (effective February 1, 2001); City of Albuquerque Ordinance § 3-l-6(D). As an unclassified employee, a city attorney is exempt only from the grievance portions of the City Ordinance. See Albuquerque Ordinance 3-l-6(E)(“AU employees in the unclassified service shall be entitled to all of the rights and benefits to which classified employees are entitled except the benefits provided for in [§ ] § 3-1-23, 3-1-24, 3-1-25....”).

The City Attorney is a department director whom the mayor selects and the city council confirms. See id. ¶ 7, at 7. The City Attorney reports directly to the CAO and the mayor. See id. If Kelley was working on any legal matter in which the CAO or mayor had an interest, she gave information to the City Attorney and he used that information to advise the CAO and mayor. See id.

According to Kelley, the City of Albuquerque has formally granted only the City ' Attorney the power to advise the Mayor and the Council as to legal matters. See City of Albuquerque Ordinances §§ 2— 7-2-1, 2-7-2-2. Section 2-7-2-1 states: “The executive and administrative head of the Legal Department shall be the City Attorney.” Section 2-7-2-2 states: “The City Attorney, both personally and through his or her assistant city attorneys, shall represent the city in the courts. He or she shall also advise the Mayor and the Council as to legal matters.” Kelley contends that a reasonable reading of this ordinance is that the City Attorney or his assistants may represent the City in the courts, but the City Attorney advises the mayor and the Council.

City attorneys provide legal advice on all issues concerning development and implementation of city policy, including policies relating to housing, land use, code enforcement, utility franchises, contracts, and city personnel, as well as the powers of the city council and the mayor’s office. See Affidavit of Bob White ¶¶ 2, 4 at 1 (executed Jan. 27, 2004)(hereinafter “White Aff.”). City attorneys advise all of the city’s policymakers, including the mayor, city council, department directors, boards, and commissions. See id. ¶ 3, at 1; Deposition of Robert M. White at 22:14 — 23:9 (taken January 27, 2004) (hereinafter “White Depo.”); Kelley Decl. Add. Facts ¶ 6, at 7. Kelley notes that Robert M. White, City Attorney for the City of Albuquerque and Director of the Legal Department, states in his affidavit that the attorneys advise the policymakers, not that the attorneys are the policymakers. See Declaration of Judy K. Kelley ¶ 8, at 2 (executed Feb. 9, 2004)(hereinafter “Kelley Decl.”); White Aff. ¶ 2, at 1; City of Albuquerque Ordinances §§ 2-7-2-2, 2-7-2-3 (describing the duties of the city attorney and the assistant city attorneys is to “advise the Mayor and the Council as to legal matters.”). Although Assistant city attorneys provide legal advice, Kelley contends that legal advice is not policymaking. See Kelley Decl. ¶ 7, at 2. Kelley alleges that the legal advice that the city attorneys give is no different than the advice that a corporate attorney gives her client; it is still the CEO, president, or board of directors who are the policymakers by deciding what to do with the advice. See id.

Kelley alleges that all the City Attorneys for whom she worked frequently reminded the assistant city attorneys that they are not policymakers. See Kelley Decl. Add. Facts ¶ 6, at 7. Kelley alleges that White consistently took the position that assistant city attorneys are limited to providing legal advice and are not to become involved in policymaking. See id. Kelley also contends that White frequently stated that any policymaking that came from the City Attorney’s office would come from him, not the assistant city attorneys. See id.

Kelley contends that, as an assistant city attorney, she gave legal advice on a variety of issues, but primarily on personnel issues. See id. ¶ 8, at 7. Kelley usually gave advice to mid-level managers. See id. Occasionally, she advised a department director. See id. Kelley rarely gave legal advice to, or had a meeting with, the CAOs under whom she served. See id.; id. at ¶ 5, at 7. Kelley did not give legal advice directly to a mayor. See id. at ¶ 2, 7 at 5-6, 7.

Kelley was one of some thirty attorneys in the office of the city attorney. See Kelley Decl. Add. Facts ¶ 1, at 5. The head of the litigation department, John Pope, selected Kelley for the position of assistant city attorney in 1985. See Kelley Decl. Add. Facts ¶ 4, at 6. The City Attorney, Human Resources Director, and CAO approved her hiring. See id. During that hiring process, Kelley met with only two individuals, Pope and then-City Attorney Gary O’Dowd. See id. She did not meet with the mayor at the time, Harry Kinney, when she was hired, nor did Kinney sign Kelley’s hiring papers. See id.

B. RELATIONSHIP BETWEEN ASSISTANT CITY ATTORNEYS AND THE MAYOR.

Kelley alleges that she had minimal contact with the Albuquerque mayors during her employment. See Kelley Decl. Add. Facts ¶ 5, at 6. Kelley alleges that her relationship with all mayors, including Chavez, was not as part of the mayor’s personal staff. See id. ¶ 4, at 6. Nor did any mayor appoint her to a policymaking position or to be an immediate advisor to the mayor on the constitutional or legal powers of his office or of the City. See id. Kelley did not have any meetings with prior mayors in which she advised them on city policy, on the City’s legal or constitutional powers, or on the mayor’s office powers. See id. She did not work closely with any of the mayors, including Chavez in his first administration. See id.

With the exception of office social functions, Kelley’s only contact with Chavez during his first term was attending the same baseball game. See id. ¶ 2, at 5-6. Kelley does not think that any mayor other than Chavez knew who she was when they passed her in the hallway or on the street. See Kelley Decl. Add. Facts ¶ 5, at 6-7. Kelley alleges that Chavez knew Kelley only because — like Kelley — Chavez is an attorney. See id. Chavez did not know in what field of expertise Kelley worked as an assistant city attorney, and he cannot recall any private conversations with her during his first term. See Chavez Depo. at 34:1-14; id. at 35:2-8.

The Defendants allege that Chavez interacts with the city attorneys and, especially during his second term in office, works much more closely with the city attorneys than in his first term. See White Depo. at 42:18-24. The Defendants also contend that Chavez currently uses the assistant city attorneys for advise on city policy, including the legal powers of the mayor’s office. See White Aff. ¶ 4, at 1. Kelley, however, alleges that her relationship with Chavez was similar to that of the other mayors. See Kelley Deck Add. Facts ¶ 5, at 6-7. During his first term, Chavez admits that he did not ask Kelley for any policy position papers. See Chavez Depo. at 80:19-23.

C. ASSISTANT CITY ATTORNEYS PARTICIPATION IN REVISING THE PERSONNEL ORDINANCE AND IN SETTLEMENTS.

The City Ordinances provide that the Director of Human Resources has the duty to prepare and recommend changes in the personnel ordinance to the CAO. See City of Albuquerque Ordinances § 3-1-3(B),(G). While working as an assistant city attorney, Kelley participated in modifying the City Personnel Ordinance, requiring her to apply her legal knowledge and making at least one presentation to the city council. See Deposition of Judy K. Kelley at 21:24 — 22:1 (taken December 11, 2003)(hereinafter “Kelley Depo.”). A committee, which did not include Kelley, met over a several month period to develop a draft of the revised personnel rules. See Kelley Deck Add. Facts ¶ 9, at 7. Once a draft was close to final, the committee asked Kelley to provide legal advice on the revised rules. See id. If Kelley could not attend a meeting, the meeting occurred without her. See id. Kelley alleges that, during this process, she did not advise the committee, the CAO, or the mayor on policy issues. See id.

Kelley participated in revising the personnel ordinance primarily by drafting the grievance procedure. See Kelley Depo. at 24:19-22; Kelley Deck Add. Facts ¶ 10, at 8. Several members of upper administration, possibly including the CAO, studied the grievance procedures of other cities and, based on this information, instructed Kelley on what she should include in the procedures. See Kelley Deck Add. Facts ¶ 10, at 8. Kelley alleges that her involvement in the changes in the grievance procedure was as drafter, putting on paper the policy that was given to her and writing it in such a way that it was legally defensible. See id. The City Attorney communicated with the CAO about what Kelley had written. See id. She attended one city council meeting to briefly describe the procedure and answer questions. See id.

In addition, Kelley advised the City regarding settlement positions. See Kelley Depo. at 20:3-21. The Risk Management Division, however, made the decision whether to settle most claims against the City. See Kelley Deck ¶ 11, at 8. The Claims Review Board, which considered some of the larger claims, held meetings that Kelley sometimes attended as a nonvoting member. See id. Whenever the claim before the Board was one that she was handling or with which she was familiar, she would provide her legal opinion regarding liability. See id. The Board, however, made the decision whether to settle the particular claim. See id. Kelley had no input on whether to settle claims against the City that were not within the Board’s jurisdiction. See id. She never advised a mayor or the city council with regard to settling claims. See id.

II. EQUAL EMPLOYMENT OPPORTUNITY (“EEO”) MEDIATIONS.

Kelley has conducted many EEO media-tions. See Kelley Decl. Add. Facts ¶ 14, at 9. In most of these proceedings, Kelley alleges that the mediator stated that the mediation is an informal proceeding, and encourages the parties to be informal and address each other by their first name. See id.

In 2000, Kelley represented the City in two EEOC mediation sessions involving a claim of discrimination unrelated to this case. See Kelley Depo. at 7:19 — 9:17. Chavez — then a practicing private attorney between his two terms as mayor — was opposing counsel in that litigation, representing Steve Chacon. See id. at 7:19-22; id. at 36:9 — 37:10. Chavez testified that he and Kelley were “participating” in an EEOC proceeding or investigation. See Chavez Depo. at 51:19-22. During the first mediation, Chavez’ client made several factual allegations, which Kelley agreed to have investigated. See Kelley Decl. Add. Facts ¶ 15, at 9. Accordingly, the City hired an independent investigator, but the investigator could not substantiate the claims. See id.

Chavez and Kelley then held a second mediation session on Chacon’s discrimination claims. See Kelley Depo. at 7:21-22; Kelley Decl. Add. Facts ¶ 15, at 9-10. Kelley alleges that, when she told Chavez that the City was unable to substantiate the discrimination claims, Chavez became angry. See Kelley Depo. at 8:20 — 9:8; Kelley Decl. Add. Facts ¶ 14, at 9. In an attempt to “calm things down,” Kelley referred to Chavez’ client by his first name, “Steve.” Kelley Depo. at 8:20 — 9:8. In response, Chavez asked her to call his client by his surname. See Kelley Depo. at 8:20 — 9:8; Chavez Depo. at 46:5-23; Kelley Decl. Add. Facts ¶ 14, at 9. Kelley apologized, stating that she did not mean to offend anyone. See Kelley Depo. at 8:20 — 9:8; Kelley Decl. Add. Facts ¶ 14, at 9. Kelley complied with Chavez’ request. See Kelley Decl. Add. Facts ¶ 14, at 9; Chavez Depo. at 46:14-23.

Kelley then alleges that, when she addressed Chavez as “Marty,” he became angry, slammed his file or briefcase on the table, pushed his chair back, and announced the session was over. Kelley Decl. Add. Facts ¶ 15, at 9-10. When asked whether he slammed the papers on the table and walked out, Chavez responded, “I don’t recall that. That certainly would be consistent with the way I have had some cases where you put your file on the desk, put stuff up there, and get up and say, [’Wje’re done,[’], and walk out.” Chavez Depo. at 52:21-25. Chavez admits that he became upset with Kelley because he thought she was treating his client in a demeaning and an offensive manner, see id. at 46:9-13, but contends that he did not act in a “loud manner,” id. at 52:12-16.

Kelley contends that Chavez became angry and ended the session because she did not agree to a proposed settlement and because of her demeanor with Chavez’ client. See Kelley Decl. Add. Facts ¶ 15, at 9-10. Kelley alleges that, during the second EEO mediation session, her demeanor was appropriate to a mediation environment and that she treated Chavez’ client with respect. See Kelley Decl. Add. Facts ¶ 14, at 9. Kelley asserts that nothing about her conduct warranted Chavez’ angry outburst. See id

Chavez believes that Kelley’s conduct in the mediation sessions was unprofessional and unethical. See Chavez Depo. at 53:12-16. He admits that a record of the mediation would not reveal any unprofessional conduct by Kelley; instead, Chavez bases his view of her conduct on his “sixth sense.” Id. at 53:12-22. Although Chavez found the mediation to be very disturbing, see id. at 80:5-8, he did not seek any disciplinary action against Kelley after the event, see id. at 80:24 — 81:3. Chavez contends that he did not discuss what occurred at the mediation with White either after the session or between his two terms as mayor. See Chavez Depo. at 53:23— 54:13. White admitted, however, that Chavez mentioned the EEO mediation incident with Kelley to him sometime during the fall of 2001 in the context of discussing the office’s morale. See White Depo. at 37:10-32. In this excerpt of his testimony, however, White does not mention the details of Chavez’ discussion with White about the EEO mediation incident. See id. Chavez also alleges he did not discuss the Kelley termination with Jay Czar, the City’s CAO. See id. at 54:14-21. Chavez is not aware of any disciplinary action taken against Kelley. See id. at 56:17-20.

Because of Chavez’ abrupt termination of the mediation, Kelley immediately went to White and told him about the meeting. See Kelley Decl. Add. Facts ¶ 16, at 10. White told Kelley not to worry, because “Marty” appreciates people who stand up to him. See id. White had no complaints about Kelley’s job performance then or at any other time. See id. Kelley did not have contact with Chavez after this mediation session about this case or any other matter until he was re-elected mayor in 2001. See Kelley Decl. Add. Facts ¶ 17, at 10. Kelley alleges that, as a result of this experience, Chavez forced her to submit a letter of resignation once he was re-elected mayor — more than two years after the mediation sessions. See Plaintiffs Response to Defendants’ Motion for Summary Judgment at 21, filed Feb. 27, 2004 (Doc. 38).

III. LETTERS OF RESIGNATION AND CHAVEZ’ REPLACEMENT POLICY.

A. CHAVEZ’ REQUEST FOR LETTERS OF RESIGNATION.

Chavez was elected mayor for his second term on October, 2001, and took office as mayor on December 1, 2001. See First Amended Complaint ¶ 17, at 3; see also Chavez Depo. at 6:2-6 (referring to Chavez’ start date as December 1, 2001). After being elected, Chavez requested letter of resignations of all exempt or unclassified positions in the City, including all assistant city attorneys. See White Depo. at 16:11-14. Although Chavez did “extensive interviewing” of assistant city attorneys, Chavez Depo. at 25:1-14, Chavez did not interview Kelley, see id. at 26:6-7.

Chavez accepted approximately sixty percent of the requested letters of resignation from the unclassified employees of the City. See White Depo. at 19:16-20. Kelley alleges that the decision to accept resignations or request terminations of assistant city attorneys was a combination of White’s and Chavez’ decision. See Chavez Depo. at 26:12-18; Response to Request for Information at 3 (showing that the City’s EEO response to Kelley’s claim states that both White and Chavez determined to dismiss Kelley). White, however, contends that Chavez told him to let Kelley go without discussion. See White Depo. at 23:10-20. Chavez could not recall if White made a recommendation to let Kelley go. See id. at 29:5-7. White represented that he had no problem with Kelley’s job performance. See White Depo. at 10:16-25.

Whether to submit a letter of resignation in response to Chavez’ request was a topic of much discussion among the City Attorneys, including Kelley. See Kelley Depo. at 49:17 — 50:2. Kelley ultimately decided to submit her letter of resignation. See Letter of Resignation by Judy K. Kelley to Mayor-Elect Chavez at 1 (dated November 7, 2004)(hereinafter “Letter of Resignation”). Chavez accepted Kelley’s letter of resignation on December 3, 2001, to be effective on January 1, 2002. See Kelley Depo. at 45:23 — 46:2; Acceptance of Letter of Resignation by Martin J. Chavez to Judy K. Kelley at 1 (December 3, 2001). White testified that he informed Kelley of the decision to accept her letter of resignation. See White Depo. at 23:21 — 24:1.

Kelley alleges that her submission of the letter of resignation was not voluntary. See Kelley Decl. ¶ 3, at 1. The letter specifically stated that she did not want Chavez to accept the resignation. See id.; Letter of Resignation at 1. Chavez admits that Kelley did not want to be let go. See Chavez Depo. at 71:23 — 72:4.

The Defendants contend that, when Chavez took office, he wanted to change the city attorney’s office because he was not pleased with its performance. See Chavez Depo. at 25:1-5; id. at 28:11-15. Chavez alleges that he decided to accept Kelley’s letter of resignation as part of his effort to “shake up the office.” Chavez Depo. at 25:1-5. As Chavez explained:

[CHAVEZ]: I have a distinct impression of Ms. Kelley that she’s ... [“jpedestri-an[”] as an attorney.

Q: What do you mean by that?

A: Not particularly creative, not particularly outstanding as a lawyer. One of the concerns I had with the ... City Attorney’s office was that there was dead wood, or an environment where lawyers weren’t working the way they were supposed to work; they were were[n’t] working as hard as they are supposed to work.

See id. at 28:6-16. When asked on what Chavez based his opinion that Kelley was not outstanding as an attorney, Chavez could not provide any specific cases or reasons for that opinion. See id. at 32:23 — 33:2. Chavez admits that he did not review Kelley’s personnel file before terminating her employment. See id. at 63:6-9.

When asked if Chavez’ contact with Kelley during the EEO mediation sessions resulted in his decision to terminate Kelley, Chavez responded that it was not the precipitating reason, but “[i]t was certainly one part of a whole host of things that formed my opinion of Ms. Kelley.” Id. at 53:8-11. Chavez testified, however, that he believed Kelley comported herself in an unprofessional and unethical manner during the EEO mediation sessions. See id. at 53:12-16. Chavez contends that Kelley did not comport herself in keeping with his view of a public attorney. See id. at 37:11-20. In explaining this, Chavez testified that, based on his interactions with Kelley when representing Chacon, he perceived Kelley to be “completely recalcitrant. It was a stonewall type of practice that I think is certainly acceptable, whether it was ideal in the private sector[] I don’t know, but if it’s acceptable, I have a different view of how public attorneys are supposed to comport themselves.” Id. Chavez further explained that, in his view, the public attorneys’ “obligation is to do justice,” as opposed to private-sector employees’ “ultimate interest is just to prevail for your client.” Id. at 37:24 — 38:4. Noting that a city attorney’s roles is more akin to a public attorney, Chavez testified that Kelley was more interested in prevailing than accomplishing what is “fair.” Id. at 38:4-8.

Kelley, however, disputes this proffered reason. See Kelley Decl. ¶ 15, 4. Instead, Kelley alleges that Chavez accepted her letter of resignation because she did not accept the proposed settlement during the EEO mediation in the Chacon matter. See Kelley Dec. Add. Facts ¶ 15, at 9-10. To support this contention, Kelley relies on an affidavit by Denise Sarhan, who is the firm administrator for the Jaffe Law Firm. See Affidavit of Denise C. Sarhan’s Affidavit ¶ 1, at 1 (executed January 27, 2004)(hereinafter “Sarhan’s Aff.”). Sarhan spoke with White by phone to obtain a job reference for Kelley’s application to the Jaffe Law Firm. See id. at ¶¶ 3-4, at 1. When asked why Kelley left the City Attorney office, White told Sarhan he thought it was because of “a personality conflict with [Chavez].” Id. When Sarhan inquired further into the nature of the conflict between Kelley and Chavez, White told her that “Kelley had shown up [Chavez] on a particular issue and [Chavez] did not like that.” When asked about this conversation in his deposition, White did not recall this particular conversation, but testified he “may have” told a prospective employer that Kelley left the city attorney’s office because of a “personality conflict” with Chavez. White Depo. at 35:15 — 36:22.

Kelley also alleges that Chavez’ proffered reason for terminating her based on the alleged morale problem in the office is pretext because the transition report compiled for Chavez about the legal department does not mention a morale problem. See Report of Transition Team for City Attorney’s Office at 1-2 (dated November 16, 2001); Kelley Decl. ¶ 14, at 4. Moreover, in their depositions, neither White nor Chavez attributed low morale to Kelley. See Chavez Depo. at 27:25 — 28:2 (“The morale in the City Attorney’s Office, I thought was very low. Not all necessarily attributable to her.”); Kelley Decl. ¶ 14, at 4. White stated that he had no opinion whether there was low morale in the City Attorney’s office. See White Depo. at 47:16-20; Kelley Decl. ¶ 14, at 4.

In addition, Kelley alleges that White made comments to her in the fall of 2001— before the mayoral election — that made it clear her job was in jeopardy if the voters elected Chavez. See Kelley Decl. ¶¶ 15, 18, at 4, 11. Kelley understood that, at least in part because her job was in jeopardy, White and CAO Lawrence Rael helped her transfer out of the City Attorney’s office into the EEO Officer in the Human Resources (“HR”) department. See id. Kelley alleges that, although the letter accepting her resignation was dated December 3, 2001, it was not delivered to her until December 20, 2001. See Kelley Decl. ¶ 3, at 1; Kelley Decl. Add. Facts ¶ 3, at 6. Kelley contends that White led her to believe that, during this time in December, he was trying to make arrangements with Jay Czar, former aviation department director, and Irene Garcia, Chavez’ newly appointed CAO who had held a variety of high level positions in prior administrations and who was Chavez’ newly appointed Chief Financial Officer. See Kelley Decl. Add. Facts ¶ 3, at 7.

Before the mayor accepted her resignation, Kelley began a transfer to the HR department to another unclassified position. See White Depo. at 12:4-19. The Defendants contend that the transfer was never completed. See Defendant’s Motion for Summary Judgment ¶ 37, at 8; White Depo. at 12:4-9. Kelley, however, contends that the transfer to the HR department as an EEO officer was complete before Chavez took office on December 1, 2001. See Administrative Transfer Letter by Lawrence Rael to Judy K. Kelley at 1 (dated October 10, 2001)(hereinafter “Transfer Letter”); Kelley Decl. ¶ 2, at 1; Kelley Decl. Add. Facts ¶ 12, at 10. Kelley has papers signed by Lawrence Rael, the CAO, completing her transfer to the HR department effective October 20, 2001. See Transfer Letter at 1; Kelley Decl. ¶ 18, at 5. By the time Chavez accepted her resignation, Kelley had physically moved out of her office in the Legal Department and was reporting to the HR director. See Kelley Decl. ¶ 18, at 5; Kelley Decl. Add. Facts ¶ 12, at 9. Moreover, Kelley met with members of the HR Transition team, not the Legal Department team, and attended the HR department staff meetings. See Kelley Decl. ¶ 18, at 5. Kelley alleges that, in the HR department, she performed essentially the same duties as the position of Program Manager (Employee Equity), which was a classified position. See Kelley Decl. Add. Facts ¶ 12, at 9; Program Manager (Employee Equity) Classification and Compensation at 1-2 (dated June, 1994).

Upon termination, Kelley had been a City employee for sixteen-and-a-half years. See Kelley Decl. Add. Facts ¶ 13, at 9. Kelley maintains that she reasonably believed that her employment would continue. See id. Kelley filed her EEOC Charge of Discrimination on May 23, 2002. See First Amended Complaint ¶ 6, at 2.

IV. RACE AND DISCRIMINATION CLAIMS.

In her First Amended Complaint, Kelley alleges that she “was the only white female forced to resign her position.” First Amended Complaint ¶ 19, at 4. In her Response, however, Kelley contends that Chavez accepted the resignations of two Caucasian female attorneys in the City Attorney’s office and no male attorneys. See Kelley Decl. Add. Facts ¶ 19, at 12. In support of this allegation, Kelley cites Chavez’ and White’s deposition. See Chavez Depo. at 8:3-18; White Depo. at 46:12-20; id. at 47:3-6. This testimony supports the allegation that Chavez accepted the resignation of Kelley, a Caucasian female, and Hardwick, a Hispanic female, in December, 2001. See id.; Affidavit of Cameron Hull ¶ 3, at 1 (stating Ethnic Codes prepared in the list of unclassified employees refers to Hispanic/Spanish persons with an “S”)(executed Jan. 30, 2004); Hull’s List of Unclassified Employees' Since 2001 at 2 (listing Hardwick with an “ethnic code” of “S,” indicating she is Hispanic). The only information in the record about the third woman is a reference to Karen Weaver in White’s testimony. White testified that Karen Weaver, a Caucasian female, left the department as well. See White Depo. at 46:12-22. According to the list of employees that Hull compiled, Weaver’s termination date was August 9, 2002. See Hull’s List of Unclassified Employees Since 2001 at 4. The parties do not supply any other information surrounding the circumstances of Weaver’s departure.

The EEOC response to request for information describes Kelley’s replacement employee as follows: “Assistant City Attorney Randy Autio was promoted to Deputy City Attorney.... Mr. Autio has been serving as Acting Deputy City Attorney since Charging Party left the City’s employment and that he is appointed Deputy City Attorney effective March 9, 2002.” Response to Request for Information at 3. See Chavez Depo. at 8:3-18; White Depo. at 46:12-20; id. at 47:3-6. It is not clear from the record who replaced Hardwick’s or Weaver’s position. See White Depo. at 47:3-6 (stating he did not recall who replaced Hardwick and Weaver, or whether the replacement employees were male or female).

Kelley alleges that, of the attorneys retained, Chavez did not accept the resignation of a male attorney who was a known alcoholic and who was simply putting his hours in. See Response at ¶ 24, at 12; Chavez Depo. at 30:6-19. In addition, the City had settled, for $25,000, a sexual harassment claim that a woman in the City Attorney’s office brought. See White Depo. at 26:25 — 27:17.

Kelley contends that she suffered discrimination because Chavez appointed primarily Hispanics. See id. To support this contention, Kelley prepared a document listing Chavez’ appointments by race and gender. See Chavez Appointees by Gender and National Origin/Race at 1; Kelley Depo. at 25:24 — 26:11; id. at 28:4-6. According to Kelley’s list of appointees, of the twenty-five appointees, fifteen are Hispanic, as compared to nine Caucasian. See Chavez Appointees by Gender and National Origin/Race at 1. The list reflects that only two Caucasian females were appointed out of twenty-five appointments. See id.

Chavez criticizes Kelley’s list of appointees, stating it is incomplete. See Chavez Depo. at 14:23 — 15:1. As an example, Chavez notes that he appointed Christine Ching, a female Asian-American, as Senior Administrative Assistant in the Mayor’s Office, but Ching’s name does not appear on Kelley’s list of appointees. See Chavez Depo. at 16:24 — 17:8; Hull’s List of Unclassified Employees Since 2001 at 1; Chavez Appointees by Gender and National Origin/Race at 1. Chavez also testified that he replaced Brude Rizzeri, a Caucasian male, who is listed on Kelley’s list as an acting director, with Peter Behrman, a Caucasian, approximately six months after Chavez assumed office. See Chavez Depo. at 18:18-25. Chavez replaced Employee Relations Officer Joseph Chavez, an Hispanic male, with Barbara Kaiser, a female. See id. at 19:12-18. Since his present term began, the Defendants allege that the City has hired eight Caucasian female attorneys. See Hull’s List of Unclassified Employees Since 2001 at 1.

Chavez contends that he also replaced the City’s former Chief Financial Officer, Irene Garcia, a female Hispanic, with Gail Reese, who is a Caucasian female. See Chavez Depo. at 15:1-12; Hull’s List of Unclassified Employees Since 2001 at 2-3. Moreover, Chavez appointed James Lewis, an African-American male, as Chief Operating Officer. See Chavez Depo. at 16:8-12. The Defendants contend that Chavez appointed Teri Baird to the mayor’s office as chief of staff; Baird is a female Caucasian. See Chavez Depo. at 16:22-24; Hull’s List of Unclassified Employees Since 2001 at 1 (referring to “Teresa A. Baird”). Kelley disputes this categorization of Baird’s race, alleging that the City’s data in Hull’s affidavit is untrustworthy and inaccurate in several respects. See Kelley Decl. ¶ 16, at 4. To support her contention that Hull’s list is inaccurate, Kelley points out that Chavez, in his deposition, states that Teri Baird is Hispanic. See id.; Chavez Depo. at 16:21-23.

Kelley believes she also suffered discrimination on the basis of sex because, according to Kelley, it is “common knowledge in the legal community that Defendant Chavez does not like women and that Defendant White favors men.” Id. at 24:23 — 25:23.

Kelley filed her EEOC Charge of Discrimination on May 23, 2002. See First Amended Complaint ¶ 6, at 2.

PROCEDURAL BACKGROUND

Kelley alleges that her dismissal was in retaliation for her participation in an EEO proceeding — two EEOC mediations — in which she represented the City against Chavez’ client while Chavez was engaged in private practice as an attorney. Kelley alleges that Chavez fired her as soon as the City of Albuquerque elected him may- or because of her participation in the medi-ations.

Kelley originally filed her complaint in the Second Judicial District, County of Bernalillo, State of New Mexico, No. CV-2003 01862, on March 14, 2003. The Defendants removed the case to the United States District Court for the District of New Mexico on April 30, 2003, See Verified Petition for Removal, filed on Apr. 30, 2003 (Doe. 1).

Kelley contends that her termination violated the New Mexico Human Rights Act (“NMHRA”), N.M.S.A.1978 § 28-1-1, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §§ 2000e-5(f) to 2000e-17, and her right to equal protection under 42 U.S.C. §§ 1983 and 1985(2) and (3).

In Count I, Kelley alleges discrimination and retaliation under Title VII and under NMHRA. Specifically, she alleges that she was terminated on account of her sex and her race, as well as in retaliation for the June/July 2000 mediation. In Count I, Kelley only sued the City, and not Chavez or White. See First Amended Complaint at 5; Transcript of Hearing at 41:10-13.

In regard to her retaliation claim, Kelley alleges that her termination “was related to her participation in an EEOC proceeding and refusing to settle the matter for the amounts demanded by Defendant Chavez. This angered Chavez who[,] when in power as Mayor of the City[,] forced [Kelley’s] resignation and/or termination of employment.” First Amended Complaint ¶ 29, at 5. Further, Kelley alleges that “Defendant White conspired with Defendant Chavez on behalf of Defendant City of Albuquerque ... to interfere with [Kelley’s] civil rights by impeding, hindering, obstructing, or defeating, in any manner ... with intent to deny to [Kelley] the equal protection of the laws, or to injure [Kelley] for lawfully enforcing ... the right of a person to the equal protection of the laws.” First Amended Complaint ¶ 31, at 6.

In Count II, Kelley alleges that White and Chavez conspired to interfere with her civil rights under 42 U.S.C. § 1983 and § 1985. It is unclear whether the Complaint alleges an equal protection claim separate from the claims of conspiracy. In Count II, Kelley sued the City as well as Chavez and White.

The Defendants, pursuant to rule 56 of the Federal Rules of Civil Procedure, seek dismissal of all claims presented.

STANDARDS FOR DECIDING MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon mere allegations and denials in the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the non-moving party. See id. at 248, 106 S.Ct. 2505. Mere assertions or conjecture as to factual disputes are not enough to survive summary judgment. See Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988).

LAW ON QUALIFIED IMMUNITY

Qualified immunity gives government officials engaged in discretionary activities immunity from suit unless their conduct violates clearly established statutory or constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court should ordinarily resolve the availability of the defense at the earliest opportunity to avoid unnecessary cost and excessive interference with government operations. See id.

Courts analyze the defense of qualified immunity under a two-part framework. First, the court determines whether the plaintiff has asserted a violation of a statutory or constitutional right; the court then assesses whether that right was clearly established such that a reasonable person in the defendant’s position would have known that his conduct violated that right. See Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Liebson v. New Mexico Corrections Dept., 73 F.3d 274, 276 (10th Cir.1996). If the plaintiff meets this two-part burden, the defendant “assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute.” Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992).

The United States Court of Appeals for the Tenth Circuit has set forth the following framework for analyzing the application of the qualified immunity defense to claims brought pursuant to 42 U.S.C. § 1983:

In analyzing qualified immunity claims, we first ask if a plaintiff has asserted the violation of a constitutional right at all, and then assess whether that right was clearly established at the time of a defendant’s actions. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 ... (1991). Once a public official raises a qualified immunity defense, the plaintiff bears the burden of (1) coming forward with sufficient facts to show that the defendant’s conduct violated the law; and (2) demonstrating that the relevant law was clearly established when the alleged violation occurred.

Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). See Lawmaster v. Ward, 125 F.3d 1341, 1346-47 (10th Cir.1997).

If the defendant’s conduct, as alleged by the plaintiff, does not violate the law, the court need not reach the issue whether the law was clearly established. See Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir.1993). If, however, the court is persuaded that the defendant’s conduct violated the law, “the plaintiff must [also] show the right the defendant’s conduct violated was clearly established such that a reasonable person in the defendant’s position would have known the conduct violated the right.” Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir.1996). “While the plaintiff need not show that the specific action at issue has previously been held unlawful, the alleged unlawfulness must be ‘apparent’ in light of preexisting law.” Medina v. City and County of Denver, 960 F.2d 1493, 1497 (10th Cir.1992).

A. FIRST PRONG: VIOLATION OF A CONSTITUTIONAL RIGHT.

The first step in the qualified immunity analysis is whether the plaintiff has established a constitutional violation. The plaintiff “must articulate the clearly established constitutional right ... with specificity.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). It is insufficient to “identify in the abstract a clearly established right and allege that the defendant has violated it.” Id. When that inquiry involves analysis of a subjective intent element, the court must make an inquiry into the objective reasonableness of the defendant’s action. See McCook v. Springer School District, 44 Fed.Appx. 896, 905 (10th Cir.2002). If the defendant meets his burden of showing objective reasonableness, the court then considers whether the plaintiff has presented evidence of subjective intent. See id.

B. SECOND PRONG: CLEARLY ESTABLISHED LAW.

In pointing to the “clearly established law,” the plaintiff must do more than generally allege that a constitutional or statutory provision exists. See Siegert v. Gilley, 500 U.S. at 232-33, 111 S.Ct. 1789. The “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Woodward v. City of Worland, 977 F.2d 1392, 1398 (10th Cir.1992). For the law to be clearly established, a Supreme Court of the United States or United States Court of Appeals for the Tenth Circuit decision must be on point, or the clearly established weight of authority from other courts must be as the plaintiff maintains. See Murrell v. School District No. 1, 186 F.3d 1238, 1251 (10th Cir.l999)(quoting Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)). The applicable test is whether a reasonable official would have known the conduct was unlawful in light of information available at the time. See. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

LAW REGARDING EQUAL PROTECTION

I. SECTION 1983.

' “The equal protection clause is triggered when the government treats someone differently than another who is similarly situated.” Buckley Constr., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 859 (10th Cir.1991)(citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). “The.equal protection clause protects not only against discrimination where victims within an identified classification or group are injured, but also where the plaintiff alleges ‘an element of intentional or purposeful discrimination’ so as to. invoke the clause to protect an individual claim.” Smith v. E. N.M. Med. Ctr., No. 94-2213 & 94-2241, 1995 WL 749712, at *1 (10th Cir. Dec.19, 1995) (unpublished . decision)(quoting Buckley Constr., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d at 859).

Kélley alleges that the Defendants violated the equal protection clause of the Fourteenth Amendment under a “class of one theory.” ■ The Supreme Court- of the United States has recognized that the equal protection clause of the Fourteenth Amendment applies to claims brought by a class of one where the plaintiff alleges that the state has intentionally treated he or she differently from others similarly situated and where there is no rational basis for the difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)(per curiam). Courts, however, have upheld class of one cases in which a governmental body — although it treated identically situated individuals differently — the different treatment was rationally related to the government’s mission. See Ind. State Teachers Ass’n v. Board of School Comm’rs of the City of Indianapolis, 101 F.3d 1179, 1181 (7th Cir.1996)(citing Rubinovitz v. Rogato, 60 F.3d 906, 911-12 (1st Cir.1995); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir.1981); and LeClair v. Saunders, 627 F.2d 606, 609-10. (2d Cir.1980)). While the principal target of the equal protection clause is discrimination against members of vulnerable groups, the clause protects class-of-one plaintiffs victimized by a wholly arbitrary act. See Ind. State Teachers Ass’n v. Bd. of Sch. Comm’rs of the City of Indianapolis, 101 F.3d at 1181 (quoting City of New Orleans v. Dukes, 427 U.S. 297, 304, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)(per curiam)).

To show a constitutional violation under the “class of one” theory, therefore, the plaintiff must establish two elements: (i) that the Defendants acted with discriminatory intent; and (ii) that the Defendants treated the plaintiff differently from others who were similarly situated without a rational basis for doing so. See Bartell v. Aurora Public Schools, 263 F.3d 1143, 1149 (10th Cir.2001). To establish discriminatory intent, Kelley must show that the Defendants’ action “was a spiteful effort to get [Kelley] for reasons wholly unrelated to any legitimate state objective.” Id.

In regard to the liability of parties for § 1983 violations, “[p]ersona! participation is an essential allegation in a § 1983 claim.” See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996)(quoting Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976)).

II. CONSPIRACY.

To state a valid conspiracy claim under § 1983, “a plaintiff must allege specific facts showing an agreement and concerted action against the defendants.... Conclusory allegations of conspiracy are insufficient to state a valid § 1983 conspiracy claim.” See, e.g., Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998)(quoting Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.1994))(internal citations and quotations omitted).

“The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.l993)(citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)).

“[I]n the absence of allegations of class based or racial discriminatory animus, the complaint fails to state a claim under 1985.” Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.1994)(quoting Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir.1979)(per curiam ))(emphasis in the original). With respect to the discriminatory motive, the plaintiff must establish that a class-based or racially discriminatory motive lurks behind the conspiratorial activities. See Tilton v. Richardson, 6 F.3d at 686 (“[Section] 1985(3) does not ‘apply to all tortious, conspiratorial interferences with the rights of others,’ but rather, only to conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.’ ”)(quoting Griffin v. Breckenridge, 403 U.S. at 101-02, 91 S.Ct. 1790).

III. OFFICIAL CAPACITY CLAIMS.

In so far as Kelley sued the City and individuals in their official capacities, she cannot predicate liability on respondeat superior. Rather, to establish liability, Kelley must show (i) that a constitutional violation occurred; and (ii) that a city policy was the moving force behind the violation. See City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Myers v. Oklahoma County Bd. of County Comm’rs, 151 F.3d 1313, 1320 (10th Cir.1998). When the highest authority for the municipality makes the decision, that is evidence enough of a policy. See Randle v. City of Aurora, 69 F.3d 441, 447 (10th Cir.1995). As the Tenth Circuit has explained:

In Pembaur v. City of Cincinnati, the Supreme Court held that the search of a doctor’s office without a warrant gave rise to municipal liability because the County Prosecutor was acting as a “final decisionmaker” when he ordered the illegal search. 475 U.S. 469, 484-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 ... (1986). Justice Brennan explained that if an official, who possesses final policymaking authority in a certain area, makes a decision — even if it is specific to a particular situation — that decision constitutes municipal policy for § 1983 purposes. Id. at 481, 106 S.Ct. 1292 .... Hence, such an act can be understood as an act “of the municipality” which the municipality “officially sanctioned or ordered.” Id. at 480, 106 S.Ct. 1292.

Randle v. City of Aurora, 69 F.3d at 447. The Tenth Circuit then noted that Pembaur v. City of Cincinnati left open the question of who constitutes a “final policymaker” for the purposes of § 1983 liability. See Randle v. City of Aurora, 69 F.3d at 447. After discussing a Supreme Court case addressing this issue, St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), the Tenth Circuit concluded:

Guided by the general principles outlined above, we can identify three elements that help determine whether an individual is a “final policymaker”: (1) whether the official is meaningfully constrained “by policies not of that official’s own making;” (2) whether the official’s decision are final — i.e., are they subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official’s grant of authority. [St. Louis v.] Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 ...; Ware v. Unified Sch[.] Dist., 902 F.2d 815, 818 (10th Cir.1990)(“Delegation does not occur when a subordinate’s decisions are constrained by policies not of his making or when those decisions are subject to review by the authorized policymaker.”).

Randle v. City of Aurora, 69 F.3d at 448.

LAW ON TITLE VII

I. DEFINITION OF AN “EMPLOYEE” UNDER TITLE VII.

“In order to prove that the defendants unlawfully retaliated against him in violation of [Title VII] ... the plaintiff must show, inter alia, that he was an ‘employee’ within the meaning of [Title VII].” Owens v. Rush, 654 F.2d 1370, 1374 (10th Cir.1981). Title VII of the Civil Rights Act of 1964 provides that:

The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision

42 U.S.C. § 2000e(f).

Section 2000e(f)’s legislative history reveals that Congress intended the so-called “personal staff’ exemption to be narrowly construed. See Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir.1982)(citing Joint Explanatory Statement of Managers at the Conference on H.R. 1746, 92nd Cong.2d Sess., reprinted in 1972 U.S.C. Cong. & Ad. News 2179, 2180). Congi’ess did not exempt employees subject to State or local civil service laws. See id. Congress intended the exemption “to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official.” Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981).

In Anderson v. City of Albuquerque, the City argued that its Human Rights Director came within this exemption. In denying this argument, the Tenth Circuit reasoned:

The legislative history of this section states that Congress intended the exemption to be narrowly construed. Joint Explanatory Statement of Managers at the Conference on H.R. 1746, 92nd Cong.2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 2179, 2180. The exemption does not apply unless the facts clearly establish that the person is: (1) an elected public official; or (2) chosen by an elected official to be on his personal staff; or (3) appointed by an elected official to a policymaking position; or (4) an immediate advisor to an elected official regarding the exercise of the constitutional or legal powers of the elected office. Id.; Gearhart v. Oregon, 410 F.Supp. 597, 600 (D.Or.1976).

The district court based its conclusion upon findings that the mayor has unlimited discretion to make the appointment, the position is not covered by city or state civil service provisions, and the “position involves, at least to some degree, advice to the Office of the Mayor with respect to the legal powers of the Mayor pertaining to the relevant human rights ordinances and/or the Human Rights Act.” Rec., vol. I, at 203. The City contends that the staff director of the Human Rights Board is either an appointee at a policymaking level, or an immediate advisor with respect to the constitutional and legal powers of an elected official within the meaning of the exemption.

The staff director serves under the direction of the City’s Chief Administrative Officer (CAO) and the members of the Human Rights Board. All of these individuals are themselves appointees

Also, there is considerable question whether the staff director is chosen by the mayor. The Albuquerque Human Rights Ordinance, which created the Human Rights Board, provides that the CAO, an official who is appointed by the mayor, shall “(e)mploy, after consultation with the Human Rights Board, a staff director, and hire or cause to be hired such other employees for the Board as he/she may deem necessary.” Rec., vol. X, PLEx. 1. Indeed, the may- or’s actual participation in the appointment at issue here was virtually nonexistent. The applicants were originally screened by an assistant to the CAO. They were then interviewed by the Human Rights Board and the names of the leading candidates were recommended to the CAO. The mayor did not establish criteria, review resumes, or interview applicants. The actual selection was made by the CAO who subsequently sought the mayor’s concurrence “just to make sure that the mayor saw in the selection the kind of compatibility that any mayor would be looking for in his administration.” Rec., vol. IV, at 194. While the mayor testified that as Chief Executive Officer of the City he is the final decision maker, he is not the official directly charged with appointing the staff director of the Human Rights Board. Based on this record, we do not believe that the staff director was in fact appointed by an elected official within the meaning of section 2000e(f).

Application of the exemption cannot be supported by the trial court’s finding that the staff director has occasionally advised the mayor on his constitutional and legal powers. The staff director is not required to have a law degree, and is not attached to the City’s legal office. Although the previous staff director was an attorney who occasionally gave the mayor unofficial legal advice, the director chosen to replace him does not have a law degree. In general, the staff director deals primarily with other appointees who are themselves advisors to the mayor. Direct interaction between the mayor and the staff director is minimal.

In any event, the position does not fit into the narrow exemption intended by Congress. Although the staff director is not subject to all the rights and guarantees of the City’s merit system, that fact without more does not make the position exempt. See Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981); Howard v. Ward County, 418 F.Supp. 494, 502 (D.N.D.1976). The exclusion from coverage was intended “to exempt ... those who are chosen by the Governor or the mayor ..., whatever the elected official is, and who are in a close personal relationship and an immediate relationship with him. Those who are his first line of advisors.” 118 Cong.Rec. 4492-93 (1972); see also Owens [v. Rush], 654 F.2d at 1375; Gearhart [v. Oregon], 410 F.Supp. at 601. The nature and circumstances of the employment relationship between the staff director and the mayor do not demonstrate the intimate and sensitive association contemplated by the legislators who framed the exemption. See id. In sum, considering the facts of this case and construing the exemption narrowly, we conclude that the staff director does not formulate policy or advise the mayor so as to create the immediate and personal relationship required by the exception. Accordingly, we hold that the exemption provided by section 2000e(f) does not apply to the position at issue here.

690 F.2d at 800-01. In Anderson v. City of Albuquerque, therefore, the Tenth Circuit held that a staff director without a law degree is an “employee” under Title VII. See id.

In Owens v. Rush, 654 F.2d 1370 (10th Cir.1981), however, the Tenth Circuit concluded that an undersheriff is not an “employee” under Title VII because the position falls within the “personal staff exception of [§ ] 2000e(f).” Id. at 1376-77. In Owens v. Rush, a husband and wife alleged, among other things, unlawful retaliation under Title VII by the county sheriff. The sheriff appointed the husband as his “undersheriff,” the second in command of the Sheriffs Department. The sheriff appointed the wife a deputy sheriff, and assigned her various clerical duties. The United States District Court for the District of Kansas held that the wife, as a deputy sheriff, is an “employee” for the purposes of Title VI, but that her husband, the undersheriff, was not an “employee” because of the personal staff exemption under § 2000e(f). See Owens v. Rush, No. 76-32-C5, 1978 WL 13860 (D.Kan. April 5, 1978)(page numbers unavailable). In so holding, the district court reasoned that the husband had a “very close working relationship” with the sheriff. Id. As the second in command, the husband fell within § 2000e(f)’s personal staff exemption. The district court, however, distinguished the character of the wife’s position, noting that, although the sheriff personally appointed her, her duties were mainly clerical in nature. The district court concluded that, unlike her husband, the wife’s position as a deputy sheriff is an employee within § 2000e(f). The husband appealed, arguing that, as undersheriff, he was an employee for Title VII purposes.

In Rabouin v. Colo. Dept. of Law, 754 F.Supp. 171 (D.Colo.1990), the Honorable Lewis T. Babcock, United States District Judge, held that an assistant attorney general was not on the attorney general’s personal staff. As Judge Babcock explained:

The personal staff exception is narrowly construed. Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir.1982). It is intended to exempt those who are chosen by an elected official and