JAMES O. BROWNING, District Judge.
From January, 1988, to December 4, 2001, Walton was employed at the Miner's Colfax Medical Center in Raton, New Mexico, and during her time at the Miner's Colfax Medical Center, Walton became acquainted with Patrick Lyons, who was at that time a Republican New Mexican state senator. See Plaintiff's Response to Defendants' Motion for Summary Judgment ¶ 2, at 2, filed December 19, 2013 (Doc. 55)("Response")(setting forth this fact); Affidavit of Peggy Walton ¶ 3, at 1, filed December 19, 2013 (Doc. 55-1)("Walton Aff."); Defendants' Response to Plaintiff's Additional Relevant Evidence ("Are") ¶ 2, at 1, filed January 17, 2014 (Doc. 59-1)("Defendants' Response")(not disputing this fact).
After Lyons was elected, Walton applied for employment at the New Mexico State Land Office ("Land Office") several times, but did not receive a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 3, at 1 (not disputing this fact). In January, 2008, Walton told Lyons that she had been applying for positions at the Land Office and that she had not received a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 4, at 1 (not disputing this fact). Walton then asked Lyons whether there were any open position for which she was qualified, and Lyons informed Walton that there were open positions and that she should keep applying. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 3, at 1 (not disputing this fact). On June 18, 2008, Walton applied for a classified position at the Land Office. See Response ¶ 4, at 3 (setting forth this fact); Walton Aff. ¶ 5, at 2; Defendants' Response ¶ 4, at 1 (not disputing this fact). Walton was not offered a classified position, however, but instead was offered an exempt Secretary II position, which she accepted, and she began work on August 25, 2008. See Response ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 3, at 4 (also setting forth this fact); Walton Aff. ¶¶ 5-6; Defendants' Response ¶ 4, at 1 (not disputing this fact). An exempt employee serves at the will of the agency head and does not have the protections afforded to classified employees under the State Personnel Act, N.M. Stat. Ann. § 10-9-4(D)(exempting
In early 2009, Lyons instructed Sandra Lopez, the Land Office's Human Resources Manager, to transfer Walton from the exempt Secretary II position to the only vacant classified position in the Commercial Resources Division, which was an Economist A position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants' Response ¶ 6, at 1-2 (not disputing this fact). Lyons also instructed Lopez to reclassify that Economist A position to a General Manager I position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants' Response ¶ 6, at 3-4 (not disputing this fact). Walton did not have the credentials to fill the Economist A position; however, Walton was qualified to serve in a General Manager I position, and Walton told Lopez at this time that she was not qualified to serve in the Economist A position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶ 8, at 3.
After the Land Office transferred Walton to the Economist A position, Lopez refused to initiate the paperwork with the State Personnel Office to reclassify the Economist A position to a General Manager I position; after Lopez repeatedly refused to initiate the paperwork for over a year, Lyons directed Walton to bypass Lopez and work directly with the State Personnel office to accomplish the reclassification, which Walton did. See Response ¶ 7, at 4 (setting forth this fact); Walton Aff. ¶ 9, at 3.
Lyons served as Land Commissioner for two terms, the second of which expired on December 31, 2010, and did not run for re-election. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants' Response ¶ 8, at 2 (not disputing this fact). Powell, a Democrat who had served as Land Commissioner immediately before Lyons' first term, defeated the Republican candidate for Land Commissioner, Matthew Rush, in the November 2, 2010, general election. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants' Response ¶ 8, at 2 (not disputing this fact). The campaign for Land Commissioner was contentious, and, during the campaign, Powell repeatedly attacked Lyons' record, and accused Lyons of engaging in unethical conduct and mismanaging State trust lands. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants' Response ¶ 8, at 2 (not disputing this fact). Lyons publicly stated that Rush would continue the same policies as Lyons if Rush were elected. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4.
During the summer and fall of 2010, Walton attended a number of Republican campaign events, including rallies for Susana Martinez — a Republican running for Governor — which Rush also attended. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants' Response ¶ 9, at 2 (not disputing this fact). Walton also attended a campaign event for Rush at Rancho de Chimayo restaurant in Espanola. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants' Response ¶ 9, at 2 (not disputing this fact). Walton traveled to the Rush campaign event with Lyons and other Land Office employees. See Response ¶ 9, at 4-5 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants' Response ¶ 9,
In the November, 2010, general election, Walton voted for Rush, yet, Powell ended up winning the election. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants' Response ¶ 10, at 2 (not disputing this fact). The day after the election, Walton told Bearden that she had voted for Rush, and Bearden told Walton that she had voted for Powell. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants' Response ¶ 10, at 2 (not disputing this fact). On or about November 17, 2010,
KRQE television broadcast the Barker investigative report on November 23, 2010, and the report was titled: "Cronies move up as officials move out." Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 15-16, at 5; Defendants' Response ¶ 13, at 3 (not disputing this fact). Anchor reporter Dick Knipfing introduced the news segment by saying, among other things, that Walton was "distinctly unqualified" for her position and that her hiring was "rigged." Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 16, at 6.
Powell watched the Barker investigative report online within a few days after KRQE broadcast the report. See Response ¶ 14, at 6-7 (setting forth this fact); Powell Depo. at 55:6-55:15; Defendants' Response ¶ 14, at 3-4 (not disputing this fact). Powell considers Barker to be the "gold standard" in investigative reporting; he believes that Barker's reports are "thorough and vetted." Response ¶ 14, at 7. See Powell Depo. at 49:24-50:6; id. at 57:7-57:13.
Powell took office as Land Commissioner on January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6; Defendants' Response, ¶ 16, at 4 (not disputing this fact). Powell brought in a number of exempt employees, who replaced the exempt employees from the Lyons administration who resigned effective January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants' Response, ¶ 16, at 4 (not disputing this fact). These new Land Office employees included Robert Jenks, who served as Deputy Commissioner and reported to Powell; Relkin, who served as Chief Legal Counsel and reported to Jenks; Defendant Donald Britt, who served as Assistant Commissioner over the Commercial Resources Division and reported to Jenks; and Elaine Olah, who served as Assistant Commissioner over the Administrative Services Division and reported to Jenks. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants' Response, ¶ 16, at 4 (not disputing this fact).
On January 3, 2011, which was Walton's first day in the office in 2011, Powell placed a note on the door to Walton's office that said: "This office is reserved for Donald Britt." Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7; Defendants' Response, ¶ 17, at 4 (not disputing this fact). Britt had worked in the first Powell administration, and Powell hired Britt to also serve in the Second Powell administration as an exempt employee. See Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7.
On January 3 or 4, 2011, Powell met with the Commercial Resources Division staff, along with Jenks and Britt. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants' Response ¶ 18, at 4 (not disputing this fact). During the meeting, Powell expressed his opinion that the stewardship and leasing of State Trust Lands under the Lyons administration had not been handled properly, and he stated there would be federal investigations to find out who was involved; Powell stated that "men in suits with guns" were going to come to the office and implied that those "men in suits with guns" would arrest anyone involved in any wrongdoing. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants' Response ¶ 18, at 4 (not disputing this fact). On January 24, 2011, Britt and Bearden accused Walton of illegally administering a land sale that had closed during Lyons' term in the latter part of December 2010. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7.
Because Powell had made threatening remarks during the January 4, 2011, meeting about alleged illegal conduct in the Lyons administration, and because Britt had been making comments to Walton about alleged illegal conduct in the Lyons administration, Walton asked her attorney, Linda Hemphill, to contact Powell regarding Walton's concerns that Walton was being mistreated because of her previous association with the Lyons administration. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7-8.
At a February 8, 2011, Commercial Resources Division meeting, there were questions
On or about February 9, 2011, Walton was told to attend the Assistant Commissioners' meeting. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8; Defendants' Response ¶ 23, at 6 (not disputing this fact). Before February 9, 2011, Powell, Britt, or Jenks never asked Walton to attend an Assistant Commissioners meeting. See Response ¶ 23, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8.
On or about February 18, 2011, Walton went to lunch with Lyons and expressed her concerns to Lyons about the allegations that a land sale that Walton had administered was illegal; there were other Land Office employees in the same restaurant. See Response ¶ 25, at 10 (setting forth this fact); Walton Aff. ¶ 25, at 9.
In January, February, and March, 2011, Britt made several comments to Walton, in which Britt referred to Lyons, including, among other things, several times saying "have you seen Pat?" or "how's your buddy Pat." See Response ¶ 26, at 10 (setting forth this fact); Walton Aff. ¶ 26, at 10.
In January, February, March, and April, 2011, Bearden became insubordinate and hostile towards Walton. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10.
The only specific reference by Bearden regarding Walton's gender arose from a single circumstance where Bearden stated that she believed that a "man" was needed to deal with one specific client in one specific instance. MSJ ¶ 20, at 6 (setting forth this fact); Walton Depo. at 87:12-88:23.
On April 14, 2011, Walton attended a meeting of the State Trust Lands Advisory Board, which assists the Land Commissioner in the formation of policies and programs for the trust. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at 10-11; Defendants' Response ¶ 29, at 7 (not disputing this fact). The meeting started at 10:00 a.m., but Britt directed Walton to appear at 10:30 a.m.; when Walton arrived, the meeting was already underway, with the Board members, Powell, Britt, Olah, and other Land Office employees already seated. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff.
Throughout April, 2011, Bearden's conduct escalated, and she frequently made comments, which Walton believed were sexually or racially inappropriate; the comments made Walton uncomfortable, and she believed that the comments were improper and could subject the Land Office to liability for creating a sexually or racially hostile work environment. See Response ¶ 31, at 8 (setting forth this fact); Walton Aff. ¶ 31, at 11-12.
By memoranda to Britt dated April 29 and April 30, 2011, Walton described Bearden's inappropriate conduct, which Walton believed constituted illegal sexual, racial, and religious harassment. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Walton Depo. at 77:10-78:15; Britt Depo. at 76:25-77:17; Defendants' Response ¶ 32, at 8 (not disputing this fact); MSJ ¶ 27 (also setting forth this fact). Walton delivered those memoranda to Britt on May 6, 2011. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Defendants' Response ¶ 32, at 8 (not disputing this fact).
In June 2011, the General Appropriations Act of 2011 ("Appropriations Act") the legislatively mandated Reduction in Force ("RIF"), which reduced the Land Office fiscal year 2012 budget, which began January 1, 2011, by $609,000.00 and the number of full-time equivalent ("FTE") positions within the agency from 153 to 151. See MSJ ¶ 1, at 2 (setting forth this fact); MSJ (QI) ¶ 14, at 6 (also setting forth this fact); Defendants' Lopez Depo. at 70:3-71:23.
Starting in February of 2011, Olah designed the RIF. See MSJ ¶ 7, at 3 (setting forth this fact); MSJ (QI) (also setting forth this fact) ¶ 15, at 6; Olah Depo. at 72:21-73:23; Olah Aff. ¶¶ 3-4, at 2; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah, in designing the RIF, determined that it would be best for one vacant and one filled position to be eliminated, to simultaneously reduce the FTE positions and reduce the budget, as the Appropriations Act required; she ultimately, based on a review of the Land Office's organizational structure and mission, proposed the elimination of a General Manager I position. See MSJ ¶ 8, at 3 (setting forth this fact); MSJ ¶ 18-19, at 7; Olah Depo. at 70:3-70:11, 76:6-77:11; Olah Aff. ¶¶ 4-5, at 2.
It was not Olah's intention to eliminate Walton's position or to terminate her employment; charged with eliminating two FTE positions, Olah was required to evaluate the Land Office's organizational structure and to create a fully functioning organization. See MSJ ¶ 40, at 10 (setting forth this fact); Olah Depo. at 132:5-132:15; id. at 135:3-135:11.
Olah first presented her RIF design for approval in a meeting held on April 6, 2011, with Powell, Jenks, Relkin, a personnel representative, and outside counsel. See MSJ ¶ 14, at 5 (setting forth this fact); Olah Depo. 147:2-147:11 & 176:24-177:4; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah did not consult with Powell regarding her recommendations until after the RIF plan had been fully developed. See MSJ ¶ 32, at 8 (setting forth this fact); Olah Depo. at 127:19-128:17.
On June 10, 2011, Powell submitted the RIF plan to the State Personnel Office and received approval from the State Personnel Office on that same date. See Response ¶ 34, at 13 (setting forth this fact); Powell Depo. at 140:1-140:18; Defendants' Response ¶ 34, at 9 (not disputing this fact). The State Personnel Office approved the RIF, and it was made effective June 30, 2011. See MSJ ¶ 15, at 5 (setting forth this fact); Walton Depo. at 135:24-137:21; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). On June 10, 2011, Walton was called into a meeting with Olah, Britt, and Lopez, and informed that her employment was being terminated effective June 30, 2011, because of a RIF and that Walton would be on paid administrative leave immediately through June 30, 2011; Walton was directed to pack her personal belongings, turn in her keys, and leave the building immediately; before June 10, 2011, no one informed Walton that her position could possibly be eliminated through a RIF. See Response ¶ 35, at 13 (setting forth this case); Walton Aff. ¶ 34, at 13; Defendants' Response ¶ 35, at 9 (not disputing this fact). By an electronic mail transmission dated June 10, 2011, at 1:09 p.m., Powell informed the entire staff of the Land Office, statewide, that Walton's employment had been terminated; the electronic mail transmission embarrassed and humiliated Walton. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants' Response ¶ 35, at 9 (not disputing this fact). In Walton's almost thirty years working in State government, she had never seen such an announcement of the termination of an employee's employment. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants' Response ¶ 35, at 9 (not disputing this fact). State Personnel Board Rule 1.7.10.9(C)(5), N.M. Admin. Code § 1.7.10.9, requires the Land Office to offer an employee affected by a RIF, such as Walton, a position in the agency that she is qualified for. See Evidence in Opposition ¶ 40, at 8; Plaintiff's Lopez Depo. at 133:16-142:15. At the time of the RIF there were at least two openings that Walton was qualified for and that the Land Office later filled with other people, however, Walton was not offered either of these positions in violation of State Personnel Board Rule 1.7.10.9(C)(5). See Evidence in Opposition ¶ 40, at 8-9; Walton's Aff. ¶ 37, at 14.
On April 2, 2013, Walton filed her first amended Complaint in state court against the Land Office, Powell, Britt, and Bearden, alleging sexual and racial discrimination in violation of the NMHRA, N.M. Stat. Ann. § 28-1-7(A); unlawful retaliation under the NMHRA, N.M. Stat. Ann. § 28-1-7(I); violation of the WPA, N.M. Stat. Ann. § 10-16C-1; and violation of her rights under the First and Fourteenth Amendments to the United States Constitution, including her rights to engage in political association
On November 6, 2013, the Defendants moved for summary judgment on all of Walton's claims. See MSJ at 10-25. On November 27, 2013, the Defendants moved for summary judgment on Walton's political affiliation and speech claims on the basis of qualified immunity. See MSJ (QI) at 8-20. Walton responded to the MSJ on December 19, 2013, and dropped her NMHRA and Title VII discrimination claims, her constitutional claims against Britt and Bearden, as well as her First
The Court will address the procedural background in three parts. First the Court will discuss the procedural background for the MSJ. The Court will next discuss the procedural background for the MSJ (QI). The Court will last look at the hearing the Court held on April 9 and 10, 2014.
In the MSJ, the Defendants argue that Walton has not produced sufficient evidence to establish a claim for retaliation under the NMHRA or Title VII of the Civil Rights Act of 1964. See MSJ at 15. The Defendants note that Walton's retaliation claims must be examined under the burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas"). See MSJ at 15. The Defendants argue that, to establish a prima facie case of retaliation under Title VII, Walton must demonstrate that "(1) she engaged in protected opposition to discrimination, (2) she was subject to an action that a reasonable employee would have found to be materially adverse, and (3) a causal connection exists between the protected activity and the materially adverse action." MSJ at 15-16 (citing Webb v. Padilla, No. 08-0411 MV/LAM, 2009 WL 3379034 (D.N.M. Sep. 30, 2009) (Vazquez, C.J.)). The Defendants assert that under the NMHRA, to establish a prima facie case, Walton must show that "she was discharged because she performed an act that public policy authorizes or encourages." MSJ at 16 (citing Chavez v. Manville Prod. Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (1989)). The Defendants maintain that if Walton can establish a prima facie case, then under the McDonnell Douglas analysis, the Defendants are still entitled to summary judgment if they can demonstrate that there was a nondiscriminatory reason for the RIF of Walton's General Manager I position. See MSJ at 16 (citing Moongate Water Co. v. State, 120 N.M. 399, 902 P.2d 554 (Ct.App.1995)).
The Defendants concede that "the RIF was an adverse employment action," but they argue that Walton cannot establish a prima facie case, because she cannot meet the other two elements. MSJ at 16. The Defendants argue that Walton did not engage in protected opposition to discrimination, because Walton's "protected opposition ... must be to an `unlawful employment practice [under] [Title VII]," and Bearden's complained of behavior does not rise to a level that violates Title VII. MSJ at 16-17 (quoting Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1188 (10th Cir.2002) (alterations in the MSJ but not in original) ("Petersen")). The first element requires Walton to "have a reasonable, good faith belief that she was opposing discrimination," and a "good faith belief involves both subjective and objective elements." MSJ at 17 (citing Crumpacker v. Kan. Dep't of Human Res., 338 F.3d 1163, 1171 (10th Cir.2003)). This element means Walton must show that she "was targeted because of her gender, national origin or some other protected class," MSJ at 17 (citing Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327 (10th Cir.2004)), which Walton cannot do because of a lack of evidence, see MSJ at 17. The Defendants also argue that Walton cannot establish the third element — a causal connection. MSJ at 17. The Defendants argue that Walton "`must show that the individual who took adverse action against [her] knew of the employee's protected activity.'" MSJ at 18 (quoting Williams v. Rice, 983 F.2d 177, 181 (10th Cir.1993)) (alterations in the MSJ but not in original).
As to Walton's WPA claim, the Defendants make similar arguments. See MSJ at 18-19. The Defendants argue that, in "understanding the [WPA], it is important to look to the federal Whistleblower Protection Act, 5 U.S.C. § 2302 ... and decisions interpreting it, ... because the federal and New Mexico acts are materially similar." MSJ at 18. The Defendants maintain that under the federal Whistleblower Protection Act, "[d]isclosures which do not demonstrate clear violations of law, gross mismanagement and abuse of authority, or other wrongful conduct, are not protected as whistleblowing." MSJ at 19 (citing Kavanagh v. Merit Sys. Prot. Bd., 176 Fed.Appx. 133, 135 (Fed.Cir.2006)). The Defendants argue that Walton has not established a protected disclosure, because "[h]er complaints about Ms. Bearden's inappropriate remarks, sabotaging of work, etc. simply do not rise to the level of `unlawful or improper acts' necessary to come with the [WPA's] protection." MSJ at 19. The Defendants further argue that Walton's "WPA claim fails because she cannot establish the causal connection element of a prima facie case." MSJ at 20 (emphasis omitted). A "successful WPA claim requires [Walton] to establish that the adverse employment action was taken by the SLO because of the alleged protected disclosure." MSJ at 19 (citing DeSantis v. Napolitano, 716 F.Supp.2d 1100, 1107 (D.N.M.2010) (Browning, J.)). Because "[t]here is no evidence that Ms. Olah, who designed the RIF, had any knowledge of the alleged protected disclosures of [Walton]," Walton has failed to show that she was terminated because of her protected disclosures. MSJ at 20.
Regarding Walton's political affiliation claim, the Defendants argue that "there is no evidence that Ms. Olah, again the only person responsible for the design of the RIF of [Walton's] position, intended to discriminate on the basis of political affiliation"; there is no "genuine dispute that political affiliation and/or beliefs were a `substantial or motivating factor' in the RIF." MSJ at 22. The Defendants argue that Walton "has no evidence she was discriminated against because she was Republican," but instead Walton "only alleges she was mistreated because of her association with a prior administration." MSJ at 22-23. The Defendants refer the Court to Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir.1999) ("Jantzen"). According to the Defendants, in Jantzen, a county sheriff warned his subordinates during a meeting that anyone who ran against him in an election, openly opposed him, or was disloyal to him, would be fired, and when the plaintiff announced he would run against the sheriff in the election, he was immediately fired. See MSJ at 23. The court granted summary judgment to the defendant sheriff based on those facts, because the plaintiff had failed to put forth any evidence that "he was terminated for `supporting or affiliating with a particular political party.'" MSJ at 23 (quoting Jantzen, 188 F.3d at 1252). The Defendants also direct the Court to Nelms v. Modisett, 153 F.3d 815 (7th Cir.1998) ("Nelms"). See MSJ at 23. In Nelms, an investigator in the Indiana Attorney General's Office, who worked under a Republican administration,
In response to the MSJ, Walton first argues that she has produced sufficient evidence to establish a prima facie case of retaliation. See Response at 17. Walton argues that it is undisputed that she "engaged in a protected activity when she submitted written complaints about Ms. Bearden's conduct to her supervisor, Mr. Britt, on April 7 and 8, and on May 5, 2011," and that it is undisputed that the Land Office "took an adverse employment action shortly after Walton engaged in that protected conduct." Response at 17-18. Walton argues that the "proximity of the protected activity and the submission of the RIF plan to the State Personnel Office alone is sufficient to establish a prima facie case of retaliatory motive." Response at 18. Walton further argues that there is sufficient evidence to show that the RIF criteria was manipulated to terminate her position and that the RIF was "generally pretextual," including "that the SLO did not consider any options to Walton's termination, that other options were available, that other divisions in the SLO had an organizational structure similar to the structure of the Commercial Resources Division, and that the SLO failed to offer Walton a right of first refusal for other positions in the SLO." Response at 18. Walton notes that Olah has denied "knowledge of Walton's complaints," but "a reasonable inference" can be drawn from the facts that Britt delivered copies of Walton's complaints to Lopez, that Olah supervises Lopez, and that the Land Office policy requires human resources
As for the WPA claim, Walton argues that "there is ample evidence that" she "communicated to her supervisor, Mr. Britt, in accordance with SLO policy," Bearden's conduct, "which Walton believed in good faith constituted improper and unlawful discrimination." Response at 20. Walton argues that her reporting of Bearden was protected activity, because "Bearden's conduct was, at a minimum, improper" and that "Bearden's conduct violated SLO's policy against sexual, racial, and religious harassment." Response at 20. According to Walton, "[w]hether Ms. Bearden's conduct rose to the level of actionable harassment under either Title VII or the NMHRA is irrelevant," because the WPA prohibits retaliation "against a public employee who reports conduct `that the public employee believes in good faith constitutes an unlawful or improper act.'" Response at 20 (quoting N.M. Stat. Ann. § 10-16C-3). To show that Olah knew of Walton's complaints, Walton asserts the same facts she uses to support her retaliation claim: that Britt forwarded Walton's complaints to Lopez, whom Olah supervised. See Response at 20.
As for her political affiliation claim, Walton argues that there is a "genuine dispute of fact ... whether Walton's political affiliation with the Republican party and with Mr. Lyons were substantial or motivating factors in the adverse employment action." Response at 21 (internal quotation marks omitted). Walton argues that, when "Powell submitted the RIF plan to the ... State Personnel Office for approval, Powell was aware that Walton was politically affiliated with both the Republican party and Mr. Lyons, who was Powell's political adversary." Response at 21. To show Powell's knowledge of her political affiliations, Walton points to the facts that Powell watched the Barker report; Powell considers Barker to be the gold standard of reporting; Powell found no reason to disbelieve Barker's report; and Powell received
In their Reply, the Defendants repeat their arguments from the MSJ that Walton did "not engage in protected opposition to Title VII discrimination, nor did she make any protected disclosure," because the activities of which Walton complained did not "rise to a level of discrimination required by Title VII," noting that Walton "voluntarily dismissed her claims for discrimination." The Defendants' Reply in Support of Motion for Summary Judgment on Plaintiff's Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights at 4-5, filed January 17, 2014 (Doc. 59)("Reply"). The Defendants argue that the "fact [Walton] claims that she was targeted because of her gender, national origin or some other protected class are being voluntarily dismissed is indicative of the fact that [Walton] recognizes that she did not engage in any protected activity." Reply at 5. The Defendants repeat their arguments from the MSJ that Walton cannot establish a causal connection, because her electronic mail transmissions and memoranda to Britt, detailing her complaints, were sent after the decision to terminate her position was made. Reply at 5-6. The Defendants argue that the Court must disregard Walton's allegations concerning the April 7 or
The Defendants next argue that, even if the Court determines that Walton established a prima facie case for retaliation, the "Defendants have presented evidence of a legitimate, nonretaliatory business reason for its decision to eliminate Plaintiff's position." Reply at 7. Regarding Walton's assertion that there were other alternatives available to Olah that did not terminate Walton's position, the Defendants argue that "a fact finder should not second guess an employer's decision absent objective evidence of discriminatory motive." Reply at 7 (citing Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1169 (10th Cir.1998); Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1363 (10th Cir. 1994)). The Defendants contend that "[a]s such, the Court should disregard all evidence of Plaintiff purporting to demonstrate the `alternatives' Ms. Olah supposedly had available aside from eliminating Plaintiff's General Manager I position." Reply at 7. The Defendants argue that, because they have offered a legitimate, nondiscriminatory reason for the decision, "summary judgment is warranted unless [Walton] can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual." Reply at 7 (citing Asbury v. Geren, 582 F.Supp.2d 1323, 1334 (D.N.M.2008) (Black, J.)). The Defendants' argue that the evidence presented by Walton is "legally insufficient" to support a claim that the RIF plan was pretextual. Reply at 8. The Defendants argue that Walton "asserts but fails to present evidence that": (i) Olah did not consider alternatives to Walton's termination, (ii) alternatives were available, (iii) other divisions in the Land Office had similar organizational structures as the Commercial Resources Division, and (iv) the Land Office did not offer Walton a right of first refusal for another position in the Land Office, as State Personnel Board Rule 1.7.10.9., N.M. Admin. Code § 1.7.10.9, requires. Reply at 8. They contend that, because it is not their "burden to establish that the decision to eliminate [Walton's] position was a good one, or a right one[,] all the [Defendants] need to do is state a reason other than retaliation for their action." Reply at 9 (citing Sanchez v. Mora-San Miguel Elec. Coop. Inc., No. 98-2061, 1999 WL 176151, at *5 (10th Cir. 1999) (unpublished)). The Defendants argue that "whether other divisions in the SLO had an organizational structure similar to the organizational structure of the Commercial Resources Division is irrelevant" to the issue of pretext, because, while "the Mineral Resources Division ... may have had a similar structure, it was dissimilar in a number of key ways." Reply at 9. Additionally, the Defendants argue
As for Walton's WPA claim, the Defendants repeat arguments from the MSJ that Walton cannot show that she disclosed protected information, that there was a pretext, or that there was a causal connection "between any protected disclosure and her adverse employment action." Reply at 10. The Defendants argue that the McDonnell Douglas burden-shifting standard should be used, because the WPA provides defendants with an affirmative defense to prove "`a reduction in workforce or other legitimate business unrelated to conduct prohibited pursuant to the Whistleblower Protection Act and that retaliatory action was not a motivating factor.'" Reply at 11 (quoting N.M. Stat. Ann. § 10-16C-4(B)). The Defendants contend that Walton "cannot show the requisite protected activity required by the WPA," because Walton's complaints to Britt regarding Bearden's conduct "are unprotected disclosures because she was reporting claimed misconduct which was a matter within her regular job duties." Reply at 11. The Defendants maintain that the General Manager I position was tasked with correcting and disciplining staff members for inappropriate behavior, and by "reporting Ms. Bearden's conduct up the chain of command to her immediate supervisor, Mr. Britt, Ms. Walton was doing nothing more than reporting misconduct of a subordinate as part of her assigned job responsibilities." Reply at 11. The Defendants argue that the communications are "undertaken as part of [an employee's] normal duties and through normal channels are not protected disclosures" under the Federal Whistleblower Protection Act. Reply at 11 (citing Kahn v. Dep't of Justice, 618 F.3d 1306, 1312-13 (Fed.Cir. 2010); Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1352 (Fed.Cir.2001), superseded by statute, Whistleblower Protection Enhancement Act of 2012, Pub.L. No. 112-199, § 101(b)(2)(C), as recognized in 504 Fed.Appx. 894, 896 (Fed.Cir.2013) (unpublished)). Additionally, the Defendants argue that, even "assuming Plaintiff's claims can be interpreted to identify protected disclosures under the WPA, complaints that Mr. Britt or others did nothing to follow up, investigate or resolve Plaintiff's complaints in the workplace do not rise to the level of protected disclosures." Reply at 12 (citing Willis v. Dep't of Agric., 141 F.3d 1139, 1143 (Fed.Cir.1998) ("[C]riticism directed to the wrongdoers themselves is not normally viewable as whistleblowing.")).
The Defendants argue that Walton's complaints about Bearden "do not constitute `unlawful or improper acts'" as the WPA defines the phrase because Walton's complaints "cannot rise to the level of a violation of federal or state law." Reply at 12 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). The Defendants further argue that Walton has not produced any evidence of pretext or a causal connection, which are "closely related" concepts. Reply at 12-13. The Defendants argue that Walton has not produced evidence of pretext, "other than statements in her Affidavit which are conclusory, based on speculation, and are unreasonable inferences of agreed upon fact." Reply at 13. The Defendants argue that Walton's argument that the adverse employment action came within close proximity of Walton notifying Britt of her complaints "wholly ignores the unrefuted evidence that Ms. Olah, the only practical decision maker with respect to the RIF, made her determination
Regarding Walton's political affiliation claim, the Defendants concede that Walton's "General Manager I position ... did not require political allegiance," but argue that Walton has not established that her political affiliation was a substantial or motivating factor in the termination of her position. Reply at 14. The Defendants argue that it "is not sufficient for Plaintiff to establish that she was a Republican, or that she attended Republican events, or that she was hired by a Republican commissioner into an exempt position." Reply 14 (citing Nelms, 153 F.3d at 815). The Defendants additionally argue that Powell's testimony that he watched the Barker report and had no reason to disbelieve it "does not mean a prima facie political association claim is made," but instead shows only "that Commissioner Powell knew Plaintiff was a Republican accused by the media of obtaining her exempt job during the Lyons administration through special favor." Reply at 15. Addressing the April 14, 2011, meeting, where Powell made remarks concerning protected employees, the Defendants argue that Powell's "deposition testimony demonstrates he meant individuals other than Plaintiff" and that "there is no suggestion by Commissioner Powell that such `protected employees' would be targeted for a discriminatory RIF or any such other illegal treatment." Reply at 15. The Defendants further argue that Walton "mischaracterizes [the] meeting by linking references of the Larry Barker report, to use of the term `protected employees' in the Lyons administration." Reply at 17. The Defendants contend that at the meeting, Powell was offering a "brief overview of the first four months of office and proceeded to address a special audit issued to the SLO," when Powell stated that the "special audit has helped to form recent public perception of the Land Office that is skewed due to the concerns brought up in the audit" and that, following the audit, "`there have been a series of interviews by investigative reporters like Larry Barker which have been featured on television statewide.'" Reply at 16-17 (quoting State Land Trust Meeting at 3). Powell, later in the meeting, unrelated to the Barker report, stated "that he was `concerned about employees in inappropriate roles, protected employees.'" Reply at 17 (internal quotation marks omitted). The Defendants argue that there "is no clear evidence Commissioner Powell was referring to the Larry Barker story" that concerned Walton, because there was, in fact, "more than one story about the SLO reported by Mr. Barker." Reply at 17 (citing Powell Depo. at 49:11-51:6). The Defendants argue that Powell's comments at the meeting were not directed at Walton and that there is not "any reasonable inference" that they were, absent "pure speculation." Reply at 17. Furthermore, the Defendants argue that Powell "only approved a RIF design undertaken by Ms. Olah, who" did not know of Walton's political affiliation or the Barker report. Reply at 15. The Defendants attempt to distinguish Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir.1988) ("Dickeson"), which Walton brings up in her Response to the MSJ (QI), Response (QI) at 9, by arguing that the "present case is clearly distinguishable from Dickeson." MSJ at 15-16. The Defendants contend that in Dickeson the defendant-sheriff told one of the plaintiffs that there were "black
In the MSJ (QI), the Defendants argue that they are entitled to Qualified Immunity with regards to
MSJ (QI) at 11. The Defendants argue that a "First Amendment protected political association claim or belief generally consists of support for a particular political party, candidate for election, or political ideology." MSJ (QI) at 12 (citing Gann v. Cline, 519 F.3d 1090, 1092-93 (10th Cir.2008)("Gann")). The Defendants argue that Walton has not alleged "that her position was designated for elimination in the reduction in force plan because she was registered to vote as a Republican, supported the Republican Party, or supported Commissioner Lyons' election or any other political activity or ideology." MSJ (QI) at 12. The Defendants assert that Walton has not alleged that her position was eliminated because of a lack of support for "the Democratic Party, Commissioner Powell's election, or any other political activity or ideology." MSJ (QI) at 12. Instead, the Defendants argue that Walton's claim is that "her position was eliminated because she had been hired as an `exempt' employee when Lyons was the Commissioner of Public Lands and later re-classified, ultimately, into a General Manager I, classified position" with no indication of allegations that a retaliation was based on anything other than a "loose association with Commissioner Powell's predecessor." MSJ (QI) at 12.
The Defendants argue that an "affiliation with individuals or administrations without a claim" that the affiliation "is based on political beliefs is not protected." MSJ (QI) at 13 (citing Jantzen, 188 F.3d at 1247). The Defendants note that the "Plaintiff claims that her hire as an `exempt' employee and subsequent reclassification is a form of political association," and that it was made "clear to Defendants that Plaintiff was, in fact, a hire based on political beliefs." MSJ (QI) at 13. The Defendants contend that hiring a person "into an `exempt' position is not necessarily a form of political affiliation or political belief," but instead it "simply means the employee was hired outside the requirements of the State Personnel Act," N.M. Stat. Ann. § 10-9-4(D). MSJ (QI) at 13 (citing N.M. Stat. Ann. § 10-9-4). The Defendants argue that, when hiring Walton, the Land Office did not take into consideration that Walton was registered to vote as a Republican, that she supported the Republican Party, the election
In response, Walton argues that "there are genuine issues of material facts as to whether the RIF was a pretext for retaliation for Walton's political association with the out-going Lyons administration and with the Republican party" by referring the Court to her Response to the MSJ. Response (QI) at 8. Concerning the second prong for qualified immunity, Walton argues that her right "was clearly established at the time of the conduct in question," because "it has long been established that `the First Amendment Protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance.'" Response (QI) at 8 (quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1451 (10th Cir.1997), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir.2011)). Walton argues that the "Supreme Court [of the United States] has articulated that right in a variety of circumstances." Response (QI) at 8 (citing Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 514-15, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) ("Branti"); Rutan v. Republican Party of Ill., 497 U.S. 62, 72, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). Walton also argues that the Tenth Circuit "has recognized a public employee's First Amendment right to be free from discrimination and retaliation because of political affiliation (or non-affiliation) in a wide variety of circumstances." Response (QI) (citing Dickeson, 844 F.2d at 1441; Laidley v. McClain, 914 F.2d 1386, 1395 (10th Cir.1990), superseded by rule on other grounds as recognized in Ferguson v. Brian Webster P.A., 493 Fed. Appx. 982 (10th Cir.) (unpublished); Mason v. Okla. Tpk. Auth., 115 F.3d at 1451; Bass v. Richards, 308 F.3d 1081, 1090-91 (10th Cir.2002); Gann, 519 F.3d at 1095-96).
Walton argues that the facts in Dickeson "were very similar to the facts in this case." Response (QI) at 9. Walton states that in Dickeson, a sheriff terminated the plaintiffs' employment because of their association with the former sheriff, and the United States Court of Appeals for the Tenth Circuit held that the termination of the plaintiffs' employment, because of their association with the former sheriff, "would have violated their First Amendment right of political association." Response (QI) at 10 (citing Dickeson, 844 F.2d at 1436). Walton argues that "Dickeson clearly informed Powell that [he] could not terminate Walton's employment because of Walton's association with Powell's political adversary, the former Commissioner of Public Lands, Patrick Lyons." Response (QI) at 10. Walton argues that Gann "demonstrates that the contours of a public employee's First Amendment right to be free of political patronage were clearly established in 2008" — two years before "Powell engaged in the patronage termination of Walton." Response (QI) at 10.
Walton argues that "Powell has misleadingly attempted to recast Walton's § 1983 claim" by stating that "`she did not have a clearly established right not to be subject to a reduction in force on account of being hired as an `exempt' employee during the Lyons administration.'" Response (QI) at 11 (quoting MSJ (QI) at 11). Walton argues that the "Defendants' convoluted statement completely misconstrues Walton's claim," because it "was the termination of Walton's employment because of Walton's affiliation with Powell's political adversary, Patrick Lyons, and Walton's affiliation with the Republican party, that violated" her "First Amendment right to be free of political patronage." Response (QI) at 12. Walton argues that Powell's knowledge that Lyons, "[Powell's] political adversary, hired Walton, a Republican, as an exempt employee, and then moved [her] into a classified position shortly before the November 2010 election, is evidence that Powell knew of Walton's political affiliation." Response (QI) at 12. Walton argues that the Defendants' "attempt to show that Walton's claim is somehow distinguishable from controlling precedent... completely misstates and misconstrues Walton's claim." Response (QI) at 12. Walton argues that other statements in the MSJ (QI) are "misleading," including the statement: "[h]ere, Walton does not allege that her position was designed for elimination in the reduction in force plan because she was registered to vote as a Republican, supported the Republican Party, or supported Commissioner Lyons' election or any other political party or ideology." Response (QI) at 12 (quoting MSJ (QI) at 8-9). Walton directs the Court to her Complaint, where she alleges that "Powell ... unlawfully retaliated against Walton in violation of ... her right to engage in political association free of reprisal by State officials.... Specifically, and without limitation, Powell retaliated against Walton for Walton's political affiliation with the Lyons' administration." Response (QI) at 12 (quoting Complaint ¶ 42 at 8-9). Walton also points to her Response to the MSJ, where she alleges that she "more fully described her allegations" that her "`political affiliation with the Republican party and with Mr. Lyons were substantial or motivating factors in'" the termination of her position. Response (QI) at 13 (quoting Response at 21). Walton addresses the Defendants' assertion that "`affiliation with individuals and administrations generally is not protected,'" Response (QI) at 13 (quoting MSJ (QI) at 13), by arguing that, in Dickeson, the plaintiffs alleged only that their employment was terminated because they had been hired by the previous sheriff and not because they were active in a political campaign,
Walton contends that the Defendants "mis-cited" Jantzen for the proposition that an affiliation with an individual or administration without a claim that the affiliation is based on political beliefs is not protected, because the Tenth Circuit in Jantzen, never made "such a pronouncement." Response (QI) at 14 (citing Jantzen, 188 F.3d at 1247). Additionally, Walton argues that Jantzen does not support the Defendants' assertion of qualified immunity, because the Tenth Circuit in Jantzen recognized that it was clearly established at that time that it is unconstitutional to terminate an employee for "`affiliating with and/or believing in a particular candidate.'" Response (QI) at 15 (quoting Jantzen, 188 F.3d at 1259).
In reply, the Defendants argue that Walton does not allege in her Complaint that she was retaliated against "for her support of the Republican Party, the fact she was a registered Republican, any support for the election of Commissioner Lyons, or any other political ideology," nor that Powell knew of these facts "at the time of the RIF." Reply Brief of Defendants Ray Powell, Donald Britt and Delma Bearden in Support of Motion for Summary Judgment on Count VI of the Second Amended Complaint on Grounds of Qualified Immunity at 3-4, filed January 24, 2014 (Doc. 64)("Reply (QI)"). The Defendants argue that the "sole basis for Plaintiff's political association claim is that she was retaliated against because of her `political association with the Lyons' Administration." Reply (QI) at 4 (quoting Complaint ¶ 18, at 4). The Defendants argue that the Complaint is "structured such that any retaliation for Plaintiff's alleged political association is apparently based on the fact she was hired as an exempt employee and reclassified as a classified employee during the Lyons Administration." Reply (QI) at 4. The Defendants assert that Walton has recast her claim in the Response (QI) to argue that her claim is based on her "`political affiliation with both the Republican Party, and with Powell's political adversary, Patrick Lyons.'" Reply (QI) at 4 (quoting Response (QI) at 12). The Defendants concede that, "[d]ue to the manner in which she has recast her claim, Defendant, Powell does not dispute the fact that, at the time of the RIF ... it was clearly established that if a public employer used political association as a substantial or motivating factor behind an adverse employment action," such action would violate the employee's First Amendment rights. Reply (QI) at 4. The Defendants argue that the Court must still determine whether a prima facie case exists before evaluating qualified immunity, and the Defendants refer the Court to their Reply to the MSJ to argue that Walton has failed to make a prima facie case or has, in the alternative, failed to establish sufficient evidence to show pretext. Reply (QI) at 4-5.
The Defendants argue that as "plead [(sic)], however, Plaintiff's Complaint may be insufficient as a matter of law, but it nonetheless supports a finding of qualified immunity for Mr. Powell," because it "was
The Court held hearings on April 9 and 10, 2014. At the April 9, 2014, hearing, the Court heard arguments on the NMHRA and Title VII retaliation claims, and on the political affiliation claim, see Transcript of Hearing at 46:15-102:6 (taken the morning of April 9, 2014)(Hatcher, Hardwick, Court)("April 9 Morning Tr."); Transcript of Hearing at 1:2-24:7 (taken the afternoon of April 9, 2014)(Hatcher, Hardwick, Court)("April 9 Afternoon Tr."), and at the April 10, 2014, hearing, the Court heard arguments on the WPA claim and the qualified immunity defense, see Transcript of Hearing at 1:11-22:25, 35:16-51:10 (taken April 10, 2014)(Hatcher, Hardwick, Court)("April 10 Tr.").
At the April 9, 2014, hearing, the Defendants argued that retaliation claims under the NMHRA and Title VII are evaluated in essentially the same manner, and that each is subject to the McDonnell Douglas burden-shifting analysis.
The Defendants also argued that there was no causal connection between Walton's
Walton responded to the Defendants' argument that protected activity requires an actual violation by arguing that "it's just plain wrong," because opposition "activity is protected even when it is based on a mistaken good faith belief that Title VII has been violated." April 9 Morning Tr. at 79:19-80:11 (Hardwick). Walton additionally argued that "a lot of" Bearden's conduct "would constitute actionable harassment." April 9 Morning Tr. at 82:3-82:12 (Hardwick). In addressing the causal connection requirement, Walton argued that, because Walton verbally reported Bearden to Britt before April, 2011, and because Land Office policy required Britt to take the complaints to Lopez, whom Olah supervised, a jury could reasonably infer that Olah knew of the complaints. See April 9 Morning Tr. at 82:12-83:3 (Hardwick). Walton argued that "there is ample evidence... from which the jury could conclude that the RIF was a pretext." April 9 Morning Tr. at 85:10-85:13 (Hardwick). Specifically, Walton argued that, in Olah's deposition, "she admitted that she did not explore other" alternatives in carrying out the RIF and that there "were other options available," which could lead a jury to conclude that Olah's reasons for terminating her position were pretextual. April 9 Morning Tr. at 85:21-86:9 (Hardwick). Walton argued that there were "three or four other alternatives available" to the Land Office that did not involve terminating Walton's position, and, in addition, that the Land Office could have transferred her to one of the vacant positions within the Land Office. April 9 Morning Tr. at 85:10-85:18 (Hardwick).
Concerning the WPA claim, the Defendants argued that a WPA claim requires disclosure of protected information, which the WPA defines as "the disclosure of an
Walton responded by arguing that the Defendants moved for Summary Judgment on the WPA claim solely "on the grounds that Ms. Walton did not make a protected communication," and not "on the grounds that there was a valid business justification," that "there was no causal connection," or that "reporting was within her official duties." April 10 Tr. at 10:13-10:22 (Hardwick). Walton addressed the argument that reporting Bearden's conduct was within her official duties by arguing that the Defendants' argument "suffers from a fatal flaw, as the" United States Court of Appeals for the Federal Circuit "recently acknowledged its narrow interpretation of the" Federal Whistleblower Protection Act, 5 U.S.C. § 2302 — that it does not apply to reporting within an employee's official duties — has recently "been definitively overruled by Congress." April 10 Tr. at 10:23-12:19 (Hardwick). Walton additionally argued that the WPA protects reporting a "violation of a state administrative rule," and that the Land Office has "a sexual harassment and discrimination policy," which Bearden's "racially insensitive comments violate[d]." April 10 Tr. at 13:5-13:20 (Hardwick). Walton further argued that "there has been no showing that Ms. Walton didn't in good faith believe that Ms. Bearden was making comments that violated the State Land Office's harassment and discrimination policy." April 10 Tr. at 13:21-12:24 (Hardwick). As for causation, Walton argued that "there is evidence upon which the jury could reasonably infer that Ms. Lopez communicated with Ms. Olah about [Walton's] complaint." April 10 Tr. at 14:6-14:13 (Hardwick). Specifically, Walton argued that she verbally complained to Britt in February and March, 2011, which was before Powell approved the RIF. See April 10 Tr. at 14:10-15:1 (Hardwick). When asked by the Court whether the McDonnell Douglas analysis should be applied to the WPA, Walton stated that she did not agree or disagree that the analysis should be used, and stated that the WPA is silent regarding whether "courts should or shouldn't use the McDonnell Douglas framework." April 10 Tr. at 16:1-17:18 (Hardwick, Court).
Concerning the political affiliation claim, the Defendants argued that a political affiliation claim requires more than "mere knowledge of political affiliation." April 9 Afternoon Tr. at 2:25-3:8 (Hatcher). The Defendants addressed Powell's statements at the April 14, 2011, meeting, by arguing that Powell was referring to employees who "bypassed the chain of command in the [Lyons] administration[,][a]nd were able to get things done without going
Walton responded by arguing that there "is much more" than mere knowledge of Walton's political affiliation, which makes the case different than Nelms. April 9 Afternoon Tr. at 14:3-14:12 (Hardwick). Walton argued that Powell believing the Barker report; Powell placing a note on her office door, stating that it was reserved for Britt; Powell and Relkin making faces and rolling their eyes when she made presentations; and the April 14, 2011, meeting all provide evidence of retaliation based on her political affiliation. April 9 Afternoon Tr. at 14:13-15:10 (Hardwick). Walton addressed Powell's testimony that he was not referring to Walton during the April 14, 2011, meeting, by arguing that the "jury doesn't have to believe" Powell and it is "reasonable to infer" that Powell was talking about Walton, because during the Lyons administration, "Walton got her direction directly from Mr. Lyons to process her own personnel action through the state personnel office, bypassing Sandra Lopez." April 9 Afternoon Tr. at 15:3-15:21 (Hardwick).
Concerning qualified immunity, the Defendants argued that Powell denies that he knew that Walton was a Republican at the time he approved the RIF, and the Defendants argued that there "is nothing" in the record that shows that Powell knew Walton was a Republican. See April 10 Tr. at 36:15-36:19 (Hatcher). The Defendants further argued that there is no evidence to show that Powell knew that Walton was a political hire, that she supported the Republican Party, or that she campaigned for Lyons. See April 10 Tr. at 36:19-37:17 (Hatcher). The Defendants argued that there is no clearly established law that
Walton responded by arguing that "an association is sufficient" to bring a First Amendment claim and that Powell was not required to know "what Ms. Walton's politics" were, but instead only that she was "politically associated with the Lyons administration." April 10 Tr. at 41:11-41:24 (Hardwick). Walton argued that Powell was aware of her political association with the Lyons administration, because of the Barker report, the Hemphill letter, and the picture she had in her office of Lyons. See April 10 Tr. at 41:12-42:15 (Hardwick, Court). Walton contended that, if "Powell made the decision to RIF her," and "her association with Commissioner Lyons was a substantial or motivating factor" in that decision, then Walton's "First Amendment association rights" would be violated. April 10 Tr. at 43:8-43:13 (Hardwick). Walton directed the Court to a number of cases that she cited in her Response (QI) to show that it is "very clear under Tenth Circuit precedent that Ms. Walton has a clearly established right to be associated with Commissioner Lyons." April 10 Tr. at 43:14-45:8 (Hardwick). Walton directed the Court to the Defendants' Reply (QI) to argue that the Defendants "concede that at the time of the RIF ... it was clearly established that if a public employer used political association as a substantial or motivating factor" for an "adverse employment action" then "such action would" violate "the employee['s] First Amendment rights," which Walton argues is "exactly the claim that was pled in this case in paragraph 42 of the Complaint." April 10 Tr. at 46:2-46:23 (Hardwick).
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "`The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the non-moving party's case.'" Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) ("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) ("However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried." (citation omitted)(internal quotation marks omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:
550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.)(unpublished),
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts").
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights — substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989) ("Section 1983 does not provide a remedy if federal law does not create enforceable rights."). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff
Martinez v. Martinez, No. CIV 09-0281 JB/KBM, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010) (Browning, J.) (quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693,
The Supreme Court has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Because vicarious liability is inapplicable to Bivens [v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor." Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The entity can be held liable only for its own unconstitutional or illegal policies, and not for the tortious acts of their employees. Garcia v. Casuas, 2011 WL 7444745, at *25.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged that: (i) the defendants' actions violated his or her constitutional or statutory rights; and (ii) the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
In evaluating whether the right was clearly established, the court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he did violated that right. See Casey v. W. Las Vegas Indep.
The Tenth Circuit held in Kerns v. Bader, 663 F.3d 1173 (10th Cir.2011), that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted in Pearson v. Callahan that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See 555 U.S. at 241, 129 S.Ct. 808. Once the plaintiff has established the inference that the defendants' conduct violated a clearly established constitutional
"The First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1451 (10th Cir.1997) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 68-69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) ("First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate.")). For First Amendment purposes, "there [is] no meaningful distinction ... between nonpartisan political alignment and membership in a political party." Bass v. Richards, 308 F.3d at 1091 (citing Green v. Henley, 924 F.2d 185, 187 (10th Cir.1991)).
In cases of retaliation or discrimination based on political affiliation, courts apply the test developed in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ("Elrod"), and Branti, 445 U.S. at 507, 100 S.Ct. 1287. See Jantzen, 188 F.3d at 1251. The Elrod/Branti framework provides a two-part inquiry. See Trujillo v. Huerfano Cnty. Bd. of Cnty. Comm'rs, 349 Fed.Appx. at 359-60. "To survive summary judgment, an employee needs to show a genuine dispute of fact that (1) political affiliation and/or beliefs were `substantial' or `motivating' factors in his demotion, and (2) his position did not require political allegiance."
The Supreme Court has addressed a public employee's right to be free from retaliation based on political affiliation in three cases. The Supreme Court first articulated this right in 1976 in Elrod, 427 U.S. at 350, 96 S.Ct. 2673. When the new
The Supreme Court again addressed the right in 1980 in Branti. See 445 U.S. at 507, 100 S.Ct. 1287. In Branti, a new county public defender began terminating employees from his office as soon as he was appointed, of which the vast majority were members of his opposing political party. See 445 U.S. at 509, 100 S.Ct. 1287. The Supreme Court, in an opinion by the Justice Powell, rejected the petitioner's argument that Elrod protects employees only from being terminated because of the "employee's failure to capitulate to political coercion," by holding that it is sufficient to find a violation based solely on the fact that employees were terminated because they were affiliated with or sponsored a specific political party. 445 U.S. at 517, 100 S.Ct. 1287.
In Rutan v. Republican Party of Illinois, the Governor of Illinois placed a freeze on hiring, transferring, promoting, or any similar actions by state agencies without the Governor's express permission. 497 U.S. at 65-66, 110 S.Ct. 2729. The petitioners alleged that the Governor, a Republican, was granting exceptions to the freeze only to employees who supported the Republican Party. See 497 U.S. at 66-67, 110 S.Ct. 2729. The Supreme Court, in an opinion written by Justice Brennan, held that the rights articulated in Elrod and Branti extended beyond protection from dismissal but encompassed protection from any adverse employment action — denial of promotions, transfers, or recalls after layoffs — on the basis of political affiliation. See 497 U.S. at 75, 110 S.Ct. 2729.
The Tenth Circuit has also addressed in a number of cases the right to be free from adverse employment action because of political affiliation. In Dickeson, a new sheriff was elected, and shortly after the election, he discharged the head jailer and administrative assistant, both of whom the ex-sheriff appointed. See 844 F.2d at 1437. The Tenth Circuit, in a 1988 opinion, that Chief Judge Holloway wrote, joined by Judge Anderson and the Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation, held that there was a "genuine issue of material fact as to whether" the defendant "actually discharged
In Laidley v. McClain, the defendant was elected district attorney, and shortly after taking office, he told the plaintiffs, who were hired by the previous district attorney, "that he did not intend to retain them as employees." 914 F.2d at 1388. Before the election, the defendant told the plaintiffs that their jobs would be secure even if they supported the incumbent district attorney during the Democratic primary. See 914 F.2d at 1393. During the primary campaign, which "was a bitter campaign marked by personal accusations from both sides concerning a lack of integrity," one of the plaintiffs publicly supported the incumbent district attorney by wearing t-shirts, participating in parades, stuffing envelopes, making phone calls, and putting out yardsigns. 914 F.2d at 1393. After the defendant defeated the incumbent district attorney in the election and took office, the Department of Human Services ("DHS") requested that the defendant cut the budget in the plaintiff's division. See 914 F.2d at 1393. The defendant argued that there were "legitimate budgetary reasons" for terminating the plaintiff's position, but the Tenth Circuit, in a 1990 opinion written by Judge Wesley E. Brown, sitting by designation, which Judges McKay and Anderson joined, noted that the DHS "did not decide which particular positions would be funded or how the" plaintiff's division "would be organized or staffed" — only the defendant "had the authority to make those decisions." 914 F.2d at 1393. The Tenth Circuit held that the defendant's proffered reason for terminating the plaintiff's position may have been pretextual for several reasons. See 914 F.2d at 1393-94. First, the DHS suggested the defendant appoint an attorney to a part-time position to save costs, but he rejected the idea. See 914 F.2d at 1393. Second, the defendant told the plaintiff that the DHS eliminated her position, when in fact the defendant made that decision. See 914 F.2d at 1393. Third, the defendant terminated the plaintiff's position as soon as he took office, but the "then-existing budget contract with" the DHS did not expire until six months later; the defendant replaced the plaintiff's position with two other positions, which actually cost more than her one position. See 914 F.2d at 1393. Finally, the defendant refused the plaintiff's request to be placed into a vacant secretarial slot, for which she was qualified, but instead placed one of his supporters into the position. See 914 F.2d at 1393.
In Mason v. Oklahoma Turnpike Authority, the Managing Director of the Oklahoma Turnpike Authority hired the plaintiff, but the new Managing Director dismissed the plaintiff and replaced the plaintiff with a political supporter of the defendants. See 115 F.3d at 1447. The Tenth Circuit held that there was sufficient evidence to support a finding of retaliation based on political affiliation, because a member of the Turnpike Authority had insisted that the plaintiff find an open position to hire the political supporter and even threatened the plaintiff that, if he did not find an open position, the supporter could have his job. See 115 F.3d at 1451.
In Jantzen, a county sheriff held a meeting in which he told his employees that anyone who ran against him in the next election, openly opposed his reelection, or was disloyal to him, would be fired. See 188 F.3d at 1250. One of the deputies announced at the meeting that he would run against the sheriff and was immediately fired. See 188 F.3d at 1250. Two other deputies and a jailer began to support the fired deputy's campaign by making telephone calls, putting up signs, contributing money, and knocking on doors. See 188 F.3d at 1250. When the incumbent sheriff won the reelection, he fired the other two deputies and the jailer. See 188 F.3d at 1250. The Tenth Circuit, in a 1999 opinion that Judge Ebel wrote, which Judges McWilliams and Murphy joined, held that the deputy, who ran against the incumbent sheriff, did not have his First Amendment rights violated, because the "right to political affiliation does not encompass the mere right to affiliate with oneself." 188 F.3d at 1251-52. The Tenth Circuit held, however, that, based on the incumbent sheriff's statements demanding loyalty, there was a genuine issue of fact whether the remaining plaintiffs were fired because of their political affiliation with the other deputy. See 188 F.3d at 1252-53.
In Bass v. Richards, a reserve sheriff deputy had his commission revoked, because he privately supported a candidate in the sheriff election that opposed the incumbent sheriff. See 308 F.3d at 1084-85. The defendants admitted that the deputy's commission was revoked because of his private support for the other candidate, and the Tenth Circuit, in a 2002 opinion that Judge Murphy wrote, which Judges Henry and Anderson joined, affirmed the district court's denial of summary judgment, based on qualified immunity, stating "[A] reasonable official would understand that [the plaintiff's] commission could not be removed because of his political alignment and beliefs." 308 F.3d at 1091.
In Gann, the Oklahoma County Commissioner hired the plaintiff but when a new County Commissioner was elected, he attempted to fire the plaintiff twice and eventually refused to rehire her during a rehiring process despite telling employees that they would receive priority in the rehiring process. See 519 F.3d at 1090. The plaintiff did not oppose the defendant in the County Commissioner election, but instead remained apolitical and did not support either candidate. See 519 F.3d at 1090. The defendant argued that he was entitled to qualified immunity, because the law was not clearly established at the time that political non-affiliation was a protected right and that Tenth Circuit cases had recognized only a political affiliation right in conjunction with actively campaigning or supporting a political candidate. See 519 F.3d at 1095. The Tenth Circuit, in a 2008 opinion that Judge Kelly wrote, which Judges Ebel and McConnell joined, rejected this argument by holding that it was clearly established at the time that the First Amendment protects both political affiliation and non-affiliation. See 519 F.3d at 1095.
The Court will grant the MSJ in part and deny it in part. The Court will grant
Walton brought a § 1983 claim against Powell, alleging that Powell violated her First and Fourteenth Amendment rights by retaliating against her for her political affiliation with the Lyons administration. The Defendants moved for summary judgment, asserting that Powell is entitled to qualified immunity, because Walton has not produced sufficient evidence to establish a constitutional violation, and because the law concerning any potential violation was not clearly established. See MSJ (QI) at ¶ 11-14. "Although these issues come before the Court on summary judgment, the Court reviews the defense of qualified immunity `somewhat differently' than other summary judgment rulings." Chavez v. Cnty. of Bernalillo, 3 F.Supp.3d 936, 990, 2014 WL 936426, at *35 (D.N.M.2014) (Browning, J.) (quoting Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir.2000)). Walton must satisfy a two-part test for her claims to survive summary judgment: first, she must show that the Defendants' conduct violated a constitutional or statutory right; and second, she must demonstrate that the constitutional or statutory right was clearly established at the time. See Scull v. New Mexico, 236 F.3d at 595. "`Only if the plaintiff establishes both elements of the test does the defendant bear the traditional burden of showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.'" Chavez v. Cnty. of Bernalillo, 3 F.Supp.3d at 990, 2014 WL 936426, at *35 (quoting Scull v. New Mexico, 236 F.3d at 595 (citations omitted)(internal quotation marks omitted)).
Before considering whether Powell is entitled to qualified immunity, the Court must first determine what claim Walton is asserting. In the MSJ (QI), the Defendants argue that Walton asserts the claim that she suffered retaliation, because she was "hired as an `exempt' employee when Lyons was the Commissioner of Public Lands and later re-classified, ultimately, into a General Manager I, classified position," and because she had a "loose association with Commissioner Powell's predecessor." MSJ (QI) at 12. The Defendants argue that retaliation for those reasons cannot be the basis for a constitutional violation. See MSJ (QI) at 13. Walton responds by arguing that the Defendants "completely misstate[] and misconstrue[]" her claim. Response (QI) at 12. Walton specifically directs the Court to paragraph 42 of the Complaint, where Walton alleges:
Complaint ¶ 42, at 8-9. Walton also directs the Court to the Response, where she "more fully described her allegations of political retaliation," by stating that her "`political affiliation with the Republican party and with Mr. Lyons were substantial or motivating factors'" in the Defendants' decision to terminate her position. Response (QI) at 12-13 (quoting Response at 21 (internal quotation marks omitted)).
In the Complaint, Walton does not allege that she suffered retaliation merely because of her affiliation with Lyons — or, as the Defendants put it, "a loose association with Commissioner Powell's predecessor." Compare Complaint ¶ 42, at 8-9 ("Walton's political affiliation with the Lyons' administration"), with MSJ (QI) at 12 ("she alleges a loose association with Commissioner Powell's predecessor"). Rather, Walton alleges that she suffered retaliation because of her "political affiliation with the Lyons' administration." Complaint ¶ 42, at 8-9. Walton's affiliation with Lyons, as alleged, was of a political nature, not merely a cordial or loose affiliation. See Complaint ¶ 42, at 8-9 ("political affiliation with the Lyons' administration")(emphasis added). Additionally, Walton does not allege that she suffered retaliation solely based on her political affiliation with Lyons, but, rather, she was a target because of her "political affiliation with the Lyons' administration." Complaint ¶ 42, at 8-9 (emphasis added). The Court, thus, agrees with Walton that the Defendants misconstrue Walton's claim in the MSJ (QI), because Walton has not alleged that she suffered retaliation because she was transferred from an exempt position to a classified one, or because she has a loose association with Lyons. Compare Complaint ¶ 42, at 8-9, with MSJ (QI) at 12.
Although Walton stated in the Response that she suffered retaliation because of her affiliation with the Republican Party, see Response at 21, Walton has made no such allegation in the Complaint, see Complaint ¶¶ 41-45, at 8-9. Walton alleges that Lyons and she are Republicans, and that Powell is a Democrat, see Complaint ¶¶ 9-11, at 2, but nowhere in the Complaint does Walton allege that her termination was because she was a Republican or because she supported the Republican Party, see Complaint ¶¶ 41-45, at 8-9. Walton has not amended the Complaint to allege that she suffered retaliation because of her affiliation with the Republican Party, nor has she moved for the Court's leave to amend the Complaint. Based, therefore, on Walton's allegations in the Complaint, the Court construes Walton's claim as asserting that Powell retaliated against her because of her political affiliation with the Lyons administration, but not necessarily because of her affiliation with the Republican Party.
Walton has produced sufficient evidence to establish a violation of her First Amendment right to be free from retaliation based on her political affiliation with the Lyons administration. The Defendants do not argue that Powell was not acting under the color of state law, see generally MSJ at 1-25; MSJ (QI) at 1-21, but instead, the Defendants argue that Walton has not produced sufficient evidence to establish a constitutional violation, see MSJ (QI) at 11-14. The Defendants also argue in the alternative that, if Walton has produced sufficient evidence of a constitutional violation, Powell is still entitled to summary judgment, because they have produced sufficient evidence of a legitimate, nondiscriminatory reason for the RIF. See Reply (QI) at 4-5.
As an initial issue, the Court must first determine whether an employee has a First Amendment right not to be subject to adverse action because of her affiliation with a prior administration. The Defendants argue that the First Amendment does not protect mere affiliation with a prior administration, but, instead, a political affiliation claim requires affiliation with a political party or idea. Walton responds that the First Amendment, as Tenth Circuit precedent shows, protects affiliation with a prior administration.
The right to political affiliation is not limited to actively campaigning or supporting a candidate during an election. While many political affiliation cases involve an election, see, e.g., Laidley v. McClain, 914 F.2d at 1388, courts do not find a violation based on the right to campaign or vote, but rather on the right to affiliate with a particular party, politician, or political idea, see, e.g., Elrod, 427 U.S. at 359, 96 S.Ct. 2673 (support of political party); Gann, 519 F.3d at 1095 (support of political idea); Laidley v. McClain, 914 F.2d at 1394 (support of politician). While courts look to employee's campaign or election activities to find evidence of retaliation based on political affiliation, they maintain that it is the retaliation because of the affiliation, and not because of campaigning or electioneering, that creates the violation. See, e.g., Dickeson, 844 F.2d at 1445. See also Mason v. Okla. Tpk. Auth., 115 F.3d at 1451 (holding that there was sufficient evidence of political affiliation violation when no election or campaign occurred). For instance, in Elrod, the terminated employees did not campaign or actively support the outgoing sheriff in the election, but instead were affiliated with the prior sheriff and a different political party than the new sheriff. See 427 U.S. at 350-51, 96 S.Ct. 2673. Additionally, in Dickeson, the Tenth Circuit held that the plaintiffs may have been discharged "due to their association with the former sheriff" in violation of their First Amendment rights, and as evidence supporting this conclusion, Chief Judge Holloway noted that the defendant, among other things, told one of the plaintiffs that he was going to fire her because she failed to campaign and vote for him. 844 F.2d at 1445 n. 9.
Additionally, the right to political affiliation does not extend solely to the
This retaliation is analogous to the political patronage that occurred in Elrod: a new politician was elected and then terminated certain employees because they were aligned with the prior administration at a political level. See 427 U.S. at 350-51, 96 S.Ct. 2673. While a cordial affiliation or friendship with a political figure may not be protected, a political affiliation will be. The opinion of Honorable Judge Bruce D. Black, United States District Court Judge for the District of New Mexico, in Ortiz v. San Miguel County, 955 F.Supp. at 1338, is instructive on this issue.
Viewing the evidence in a light most favorable to Walton, see Scott v. Harris, 550 U.S. at 378, 127 S.Ct. 1769, the Court finds that Walton has produced sufficient evidence to establish a constitutional violation. During the campaign for the November, 2010, election, Powell attacked Lyons' record, accusing him of engaging in unethical conduct and mismanaging state trust land. See Laidley v. McClain, 914 F.2d at 1393 (stating that an election campaign, which was bitter and filled with attacks against the other candidate, contributed to the creation of an inference that the plaintiff's political affiliation with the prior administration played a role in her termination). It was generally known in the Land Office that Walton supported
The strongest evidence of retaliation is Powell's statements at the April 14, 2011, meeting. At that meeting, Powell referred to the Barker report, which featured Walton and referred to her as a political crony, and then complained about "protected employees" who were unqualified and received directions from the front office to bypass the ordinary chain of command. While Powell denies that he was referring to Walton when making those statements, circumstantial evidence evidences the contrary. This meeting took place only eight days after Powell made the decision to terminate Walton's position. Powell was glaring at Walton when he made the statements. Moreover, his statements accurately described Walton's circumstances during her time in the Lyons administration: Lyons directed her to bypass Lopez — the normal chain of command — to reclassify her position to a Manager I position, which is a classified position with certain protections under the State Personnel Act — a protected position. Additionally, Powell mentioned the Barker report earlier in the meeting, which referred to Walton as Lyons' political crony and stated that she was unqualified. Taking these facts as a whole, and viewing them in a light most favorable to Walton, a reasonable jury could conclude that Powell was referring to Walton when discussing protected employees. All of this circumstantial evidence, in spite of Powell's testimony to the contrary, at least creates a genuine issue of material fact, which is better left resolved by a jury, than the Court at the summary judgment phase. See PNH Corp. v. Hullquist Corp. 843 F.2d at 593 (finding a genuine issue of material fact when non-movant relied solely on circumstantial evidence to contradict movant's direct evidence in the form of depositions). See also Durant v. Indep. Sch. Dist. No. 16 of LeFlore Cnty., State of Okla., 990 F.2d 560, 564 (10th Cir.1993) ("Indeed, allegations of retaliation are often supported only by circumstantial evidence."). The Court, therefore, finds that there is a genuine issue of material fact regarding whether Walton's political affiliation with the Lyons administration was a substantial or motivating factor in the decision to terminate Walton's position. See Gann, 519 F.3d at 1092-93.
The Defendants argue that, even if Walton has established a prima facie case of retaliation, they are entitled to summary judgment, because they have
After terminating Walton's position, Powell sent a statewide electronic mail transmission notifying all of the Land Office staff that Walton had been terminated, which Walton asserts had never been done in her thirty years of government work. There were two vacant positions available when Walton's position was terminated, but she was not offered either position, in violation of State Personnel Board Rule 1.7.10.9(C)(5), N.M. Admin. Code § 1.7.10.9. While Walton's division had two General Manager I positions, so did other divisions within the Land Office. Additionally, the Appropriation Act's requirements could have been accomplished by terminating vacant positions, which would not have resulted in a loss of Walton's position. This evidence, in addition to the evidence above, could lead a reasonable jury to conclude that the Defendants' proffered reason for terminating Walton's position is pretextual. See Laidley v. McClain, 914 F.2d at 1393-94 (holding that defendant's proffered budget-cutting reasoning for termination may have been pretextual).
The Defendants argue that this case is similar to the Seventh Circuit case, Nelms, because the only evidence is that Walton was a Republican and that she was fired. In Nelms, the plaintiff asserted that he was fired because of his political affiliation, but the person who made the decision was unaware of the plaintiff's political affiliations. See Nelms, 153 F.3d at 818. While other employees, who were not involved in the decision making process knew of the plaintiff's political affiliations, and made comments about them, because the decision makers were unaware of his political affiliations, the Seventh Circuit held that the plaintiff failed to establish a prima facie case of retaliatory discharge. See 153 F.3d at 819-20. Here, Walton has produced evidence that Powell — the decision maker — knew of her political affiliation. Cf. Nelms, 153 F.3d at 819-20.
The Court, therefore, concludes that Walton has produced sufficient evidence for a reasonable jury to conclude that Walton was terminated because of her political affiliation with the Lyons administration in violation of her First Amendment rights.
The second prong that Walton must overcome is that the law was clearly established when Powell terminated her position. For a right to be clearly established it must be "`sufficiently clear that a
In Dickeson, the Tenth Circuit held that a political affiliation/association with a prior administration — a sheriff — was a constitutionally protected right. See Dickeson, 844 F.2d at 1444. There, the Court held that the First Amendment protections from Elrod and Branti included the right to political association with the former sheriff. See Dickeson, 844 F.2d at 1444-45 ("We hold, however, that plaintiffs' First Amendment claims do ... implicate a genuine issue of material fact as to whether defendant Quarberg actually discharged plaintiffs due to their association with the former sheriff."). Again in Laidley v. McClain, an employee supported the district attorney in the Democratic Primary election, and when the defendant won the election and took office, he terminated the employee. See 914 F.2d at 1392-93. The Tenth Circuit held that the plaintiff's support and affiliation with the prior administration was "protected First Amendment activity," which could not be "a substantial or motivating factor in her dismissal," without violating the First Amendment. 914 F.2d at 1394.
This case is also factually analogous to Elrod. See 427 U.S. at 347, 96 S.Ct. 2673. In Elrod, when the new sheriff resumed office, he fired all of the employees who were politically affiliated with the political party of the prior administration. See 427 U.S. at 350-51, 96 S.Ct. 2673. In this case, Powell replaced Lyons as Commissioner. Powell is from a different political party than Lyons. Around three months after taking office, Powell decided to terminate Walton, who is politically affiliated with the prior administration — which is a different political party than Powell.
The Defendants argue that generally a political affiliation claim consists of support for a particular political party, candidate for election, or political ideology. This argument, however, does not take into account for the plain language of Tenth Circuit cases and factually analogous Supreme Court precedent. Additionally, the case that the Defendants cite in support of that proposition, Gann, undermines their argument. See 519 F.3d at 1095-96. In Gann, an employee was fired for his political non-affiliation rather than for his political affiliation. See 519 F.3d at 1092. There, the defendant argued that he was entitled to qualified immunity, because no case had been decided based solely on the plaintiff's right to non-affiliation. See 519 F.3d at 1095. The Tenth Circuit rejected that argument by noting that the Supreme Court and Tenth Circuit had both stated that the right to political affiliation included the right to affiliation and non-affiliation, and that "`there need not be a precise factual correspondence between earlier cases and the case at hand .... [A] general constitutional rule that has already been established can apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.'" 519 F.3d at 1095-96 (quoting Anderson v. Blake, 469 F.3d 910, 913-14 (10th Cir.2006) (alterations in original) (internal quotation marks omitted)).
Even though most political affiliation claims involve an election or campaign, and Powell did not run against Lyons in an election — although Powell publicly attacked Lyons' record and ethics during the campaign — the Tenth Circuit has been
Accordingly, because a reasonable official, based on Supreme Court and Tenth Circuit precedent, would know that a public employee had the right not to be terminated based on her political affiliation with a prior administration, the Court finds that the right was clearly established at the time Powell terminated Walton's position.
On August 27, 2014, the Court also issued an Order (Doc. 86)("QI Order") in which it denied the Motion for Summary Judgment of Defendants' Ray Powell, David Britt and Delma Bearden as to Count VI of the Second Amended Complaint on Grounds of Qualified Immunity, filed November 27, 2013 (Doc. 52), stating: "The Court will, however, at a later date issue a Memorandum Opinion more fully detailing its rationale for this decision." QI Order at 1 n. 1. At a pre-trial conference held on September 3, 2014, the Defendants informed the Court that they intend to file an immediate interlocutory appeal on the denial of summary judgment on the basis of qualified immunity. See Clerk's Minutes at 1, filed September 3, 2014 (Doc. 89). This Memorandum Opinion is the opinion promised in the QI Order.
Because the Defendants intend to file an interlocutory appeal solely on the denial of qualified immunity, the Court will address only that issue in this Memorandum Opinion and will supplement the Memoranda Opinion, at a later date, to address the remaining issues from the MSJ Order.
The Defendants do not dispute this fact but argue that it "is of marginal relevance to the issue in this Motion." Defendants' Response ¶ 1, at 1. The local rules state:
D.N.M.LR-Civ. 56.1(b). Contending that a fact is not relevant is not disputing a fact, nor is it specifically controverting a fact by directing the Court with particularity to the record. See D.N.M.LR-Civ. 56.1(b). In O'Brien v. Mitchell, 883 F.Supp.2d 1055 (D.N.M.2012) (Browning, J.), the Court explained that, because the proper course is to determine relevance of facts in the analysis section, rather than in the factual background section, objecting to an asserted fact as immaterial in response to an asserted fact effectively deems the fact undisputed. See 883 F.Supp.2d at 1058 n. 1. See Wilson v. Jara, 866 F.Supp.2d 1270, 1276-79 (D.N.M.2011) (Browning, J.)("Whether this fact is relevant is a legal argument, and the Court will not address [the cited case] at this time, but will consider it in its legal analysis.").
The Court thus deems these facts as undisputed and will, if necessary, determine their materiality in the analysis section.
In the Defendants' Response, the Defendants argue that almost every additional fact that Walton asserts in her Response is disputed as not material or not relevant. See Defendants' Response ¶¶ 2-36, at 1-9. Arguments and concerns about the materiality and relevance of a fact do not dispute. See D.N.M.LR-Civ. 56.1(b). See also O'Brien v. Mitchell, 883 F.Supp.2d 1055, 1058 n. 1 (D.N.M.2012) (Browning, J.)("[Defendant's] argument that the facts underlying the state criminal case are immaterial does not specifically controvert those facts, and the Court will therefore deem those facts admitted."). For the remaining facts asserted in the Response that are disputed as immaterial or irrelevant, the Court will deem them undisputed, and the Court will not individually address the dispute that each fact is immaterial or irrelevant in the Factual Background section, but will individually address them, if necessary, in the analysis section.
MSJ (QI) ¶ 4, at 4. The Defendants assert additional facts that are essentially identical to this factual assertion. See MSJ (QI) ¶¶ 7, 10, at 4-5. To support this fact, the Defendants direct the Court to Sandra Lopez' affidavit, where she stated:
Affidavit of Sandra Lopez ¶ 2, at 2, filed November 27, 2014 (Doc. 52-1)("First Lopez Aff."). Walton disputes this fact by arguing that Lyons directed Lopez "to fill out the appropriate documents to hire Walton into the exempt Secretary II position" and that "Lopez admitted that she does not know whether Mr. Lyons hired Walton because Walton is a Republican, and does not know whether Mr. Lyons hired Walton because Walton supported Mr. Lyons." Plaintiff's Response to Defendants' Motion for Summary Judgment (Doc. 52)(Alleged Qualified Immunity) at 3-4, filed December 30, 2013 (Doc. 56)("Response (QI)"). Walton directs the Court to Lopez' deposition where she testified that her only participation in Walton's hiring consisted of filling out "the appropriate documents for the Department of Finance and Administration." Plaintiff's Lopez Depo. at 44:13-45:13. Walton also directs the Court to a portion of Lopez' deposition, where she testified that she does not know whether Lyons hired Walton because of her support for the Republican Party, because she was a Republican, or because she supported Walton. See Plaintiff's Lopez Depo. at 46:6-46:13, 74:18-76:4. The Defendants rely on Lopez' Affidavit to support their factual assertion, see MSJ (QI) ¶ 4, at 4, but Lopez has testified that she does not know whether the asserted facts are true, see Plaintiff's Lopez Depo. at 46:6-46:13, 74:18-76:4. Because Lopez' Affidavit and deposition contradict, the Court finds that the factual assertion is disputed and will not consider it.
. . . .
Deposition of Sandra Lopez at 54:6-55:12 (taken December 4, 2013), filed January 17, 2014 (Doc. 59-3)("Defendants' Lopez Depo."). The rest of Lopez' testimony that the Defendants direct the Court to describes Lopez' correspondences with the State Personnel Office and resolution of issues in reclassifying the Economist A position to a General Manager I position. See Defendants' Lopez Depo. at 55:23-74:15. To support her factual assertion, Walton directs the Court to her affidavit, which states:
Walton Aff. ¶ 9, at 3. Walton's asserted fact and affidavit are contrary to Lopez' testimony. At the summary judgment stage, because Walton has presented competent evidence in support of her factual assertion, the Court must consider it as true. See Estate of Anderson v. Denny's Inc., 987 F.Supp.2d 1113, 1138-39 (D.N.M.2013) (Browning J.) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor.")). The Court will, therefore, consider Walton's factual assertion to be true in considering the MSJ.
. . . .
A. I don't — I recall that she said she had a problem with it, and I don't — I don't know that she said it exactly that way.
Olah Depo. at 56:25-58:7. Viewing the evidence in a light most favorable to Walton, the Court finds that Olah's testimony supports her factual assertion. Olah testified that Lopez told her that she objected to the reclassification and that she had a problem with it. See Olah Depo. at 56:25-58:7. This testimony supports the factual assertion that Lopez told Olah that she thought the reclassification was improper; thus, the Court, viewing the evidence in favor of the non-movant, will consider Walton's factual assertion.
Walton Aff. ¶ 11, at 4. The facts set forth in Walton's affidavit — her belief that her support of the Republican party was well known in the Land Office, and that Lopez studied Walton's pictures of her with Lyons and Martinez — establish the reasonable inference that Lopez and other Land Office employees knew of Walton's support of the Republican Party. See Walton Aff. ¶ 11, at 4. The Court must take Walton's evidence as true, see Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505, even though the Defendants have produced contrary evidence, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. at 151, 120 S.Ct. 2097 (quoting Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2529, at 299 (2d ed.1995)) (citations omitted). Even though the Defendants have produced some direct evidence to dispute Walton's asserted fact, because of the reasonable inferences that Walton's evidence creates, the Court takes Walton's asserted fact as true in considering the MSJ. See PNH Corp. v. Hullquist Corp., 843 F.2d 586, 593 (1st Cir.1988) (finding a genuine issue of material fact when non-movant relied solely on circumstantial evidence to contradict movant's direct evidence in the form of depositions).
D.N.M.LR-Civ. 56.1(b). The Defendants do not "refer with particularity to [the] portions of the record upon which the [Defendants] rel[y]." D.N.M.LR-Civ. 56.1(b). The Defendants, therefore, have not "specifically controverted" this fact, and the Court deems it undisputed. See D.N.M.LR-Civ. 56.1(b).
Powell Depo. at 71:17-72:24. The Defendants dispute the "Plaintiff's characterization of Powell's testimony regarding whether he would have provided the correspondence to Elaine Olah and Robert Jenks." Defendants' Response ¶ 21, at 5. The Defendants argue that "Commissioner Powell explicitly testified that it was a `possibility' that he passed the letter on to Ms. Lopez' supervisors, including Ms. Olah, but that he does not recall one way or the other." Defendants' Response ¶ 21, at 5. Yet, as Powell's testimony shows, after Powell stated it was "a possibility that" he passed the letter onto Lopez' supervisors, he stated that he "probably would have passed it on." Powell Depo. at 72:28-72:24. Viewing the evidence in a light favorable to Walton and making all reasonable inferences in Walton's favor, the Court finds Powell's testimony supports Walton's factual assertion. Because the Defendants have not "specifically controverted" Walton's asserted fact, the Court deems it undisputed. D.N.M.LR-Civ. 56.1(b).
The Defendants also argue that "[n]o evidence shows Ms. Olah ever received the Hemphill letter." Defendants' Response ¶ 21, at 5. This is contrary to the evidence. As shown above, Powell probably passed the letter onto Jenks or Olah. Powell Depo. at 71:17-72:24. Furthermore, the Defendants' additional fact, that Olah did not receive the Hemphill letter, does not specifically controvert the asserted fact, which is that Powell probably passed the letter onto Olah and Jenks. Cf. Defendants' Response ¶ 21, at 5.
Defendants' Response ¶ 22, at 5. Because materiality is more properly considered in the analysis section, the Court deems the fact undisputed and will address materiality, if necessary, in the analysis section. See D.N.M.LR-Civ. 56.1(b). See also O'Brien v. Mitchell, 883 F.Supp.2d 1055, 1058 n. 1.
Walton Depo. at 94:11-95:7 (alteration added). The Defendants' asserted fact — the "Defendant Bearden never made any derogatory statements to Plaintiff about her protected class (Hispanic)" — can either be interpreted as meaning Bearden never made a derogatory statement directed at Bearden concerning Hispanics or that Bearden never made a derogatory statement to Walton concerning Hispanics. See MSJ ¶ 23, at 6. Because the Defendants' previous factual statement is that Bearden's statements concerning race or national origin were not "directed at Bearden," MSJ ¶ 22, at 6, the Court interprets this factual statement as Bearden never made any derogatory statement to Walton that concerned Hispanics. MSJ ¶ 23, at 6. Because Walton's testimony, to which the Defendants directed the Court, contradicts the Defendants' asserted statement, the Court finds that the Defendants' asserted statement lacks support in the evidence and will not consider it.
State Land Trust Meeting, at 3. The Court finds nothing in this summary that specifically controverts Walton's implication that the statements were directed at her. At most, the Land Office meeting summary indicates the reason why Powell brought up the Barker report during the meeting, but it does not address whether the statements were directed at Walton. See State Land Trust Meeting at 3.
As for Powell glaring at Walton in a threatening and serious manner, the Defendants do not "refer with particularity to [the] portions of the record upon which the [Defendants] rel[y]." See D.N.M.LR-Civ. 56.1(b). The Defendants have not "specifically controverted" this fact, and the Court thus deems the facts undisputed. D.N.M.LR-Civ. 56.1(b).
Defendants' Response ¶ 31, at 8. This argument is a legal one, not a factual dispute; accordingly, the Court will not address it in the factual section but will, if necessary, address it in the analysis section. See O'Brien v. Mitchell, 883 F.Supp.2d 1055, 1058 n. 1 (D.N.M.2012) (Browning, J.) (citing Ruiz v. City of Brush, No. CIV 05-897 EWN/CBS, 2006 WL 1816454, at *4 (D.Colo. June 30, 2006) ("[T]he `sole purpose' of the required statements of and responses to undisputed material facts is `to establish facts and determine which of them are in dispute[;] [l]egal argument should be reserved for separate portions of the brief.'")).
The Defendants further argue that "[d]iscovery in this case is ongoing"; however, discovery closed on January 31, 2014, see Scheduling Order at 1, and the Defendants have not supplemented their Reply since the close of discovery. Because the Defendants do not refer the Court to any part of the record in disputing this fact, the Court deems the fact undisputed. See D.N.M.LR-Civ. 56.1(b).
Defendants assert the additional fact that Walton "never filed an internal or EEOC complaint against Ms. Bearden." MSJ ¶ 29, at 7. The Defendants direct the Court to a portion of Walton's deposition to support this fact. See Walton Depo. at 102:10-103:5. In this portion of Walton's deposition, there is no mention of not filing an EEOC complaint, but, rather, Walton testified that she did not report Bearden to Powell or Lopez. See Walton Depo. at 102:10-103:5. Walton disputes this fact by directing the Court to a portion of her affidavit in which she states that she "filed a charge of discrimination with the New Mexico Human Rights Bureau, which then dual filed the charge with the EEOC under the work-sharing agreement between the Human Rights Bureau and the EEOC." Walton Aff. ¶ 36, at 14. Because the Defendants have not produced evidence to support the asserted fact, and because Walton has produced evidence that specifically controverts it, the Court finds the fact disputed and will not consider it.
Olah Depo. at 70:12-70:22. The Defendants also direct the Court to the following testimony:
Olah Depo. at 71:11-71:23. Walton responded by directing the Court to the following testimony:
Olah Depo. at 76:24-77:15. Walton further referred the Court to portions of Olah's testimony in which she discussed alternatives to eliminating Walton's position and the reasons she eliminated Walton's General Manager I position rather than a vacant position. See Olah Depo. at 140:1-142:3.
Olah testified that the Appropriations Act eliminated two FTE positions. See Olah Depo. at 71:11-71:23. Walton does not dispute this fact. See Evidence in Opposition ¶ 1, at 1. In the Court's view, the fact that the Appropriations Act reduced two FTE positions supports Defendants' asserted fact that the RIF was legislatively mandated. Moreover, Walton's cited testimony shows merely the manner in which Olah enacted the RIF and decided which two FTE positions would be eliminated, and not that Olah rather than the legislature created the RIF. See Olah Depo. at 76:24-77:15 & 140:1-142:3. Walton, therefore, has not specifically controverted the fact and the Court deems it undisputed.
The Court also finds, however, that the originally asserted fact lacks support in the evidence. The Defendants in their Reply direct the Court to Olah's deposition; the most relevant portion, which the Defendants quote in their Reply, see Reply in Response ¶ 8, at 1, is reproduced below:
Olah Depo. at 123:18-124:1. This testimony does not support the factual statement that Olah based her decision on a review of the "entire agency," MSJ ¶ 8, at 3, but more accurately supports that Olah based her decision on a review of the Land Office's "organizational structures" and "mission," see Olah Depo. at 123:21-124:1. The Court has revised the factual assertion to reflect the evidence. Because Walton's remaining arguments merely present additional evidence and do not specifically controvert the fact, the Court deems it undisputed.
Evidence in Opposition ¶ 9, at 2 (citations omitted). This argument does not "specifically controvert[]" Defendants' asserted fact, but rather introduces additional evidence, and as such, the Court deems the fact undisputed. See D.N.M.LR-Civ. 56.1(b).
Powell Depo. at 132:14-132:25. Powell admits that his staff made the decision and brought to him the recommendation to eliminate Walton. See Powell Depo. at 132:14-132:25. This testimony is consistent with the asserted fact that Olah — Powell's staff — made the determination to eliminate Walton's General Manager I position. The Court finds the fact undisputed because Walton did not specifically controvert it.
Olah Depo. at 137:10-137:15. Walton disputes this fact by arguing that the assertion "`the Commercial Resources Division structure was out of sync with the rest of the agency' is factually inaccurate." Evidence in Opposition ¶ 12, at 3. Walton directs the Court to a portion of her affidavit where she states:
Walton Aff. ¶ 36, at 13-14. The Defendants reply that the "Plaintiff does not dispute that the structure of the Commercial Resources Division structure (sic) was out of sync in that there were two General Manger (sic) I positions, a redundancy, and that one of the positions had numerous subordinates while the other had no subordinates." Reply in Response ¶ 12, at 3. The Court disagrees with Defendants. Walton is not disputing that there were two General Manager I positions, but rather that this redundancy was "out of sync with the rest of the agency." Evidence in Opposition ¶ 12, at 3. Walton's assertions — that two General Manager I positions within one division was consistent with Land Office's structure because another division within the Land Office also had two General Manager I positions and that one manager oversaw a number of employees, while the other did not, was because the other manager's section was new — specifically controvert the Defendants' asserted fact that the Commercial Resources Division was "out of sync" with the rest of the Land Office. See Evidence in Opposition ¶ 12, at 3. As such, the fact is disputed. Thus, the Court will not consider the Defendants' factual assertion in determining the MSJ.
Evidence in Opposition ¶ 37, at 7 (internal citation removed). Walton refers the Court to her affidavit to dispute this fact. See Evidence in Opposition ¶ 37, at 7; Walton Aff. ¶¶ 1-38, at 1-15. Nothing in her affidavit specifically controverts this fact; rather, it provides additional facts, from which Walton wishes the Court to draw an inference. Because these additional facts do not specifically controvert Defendants' asserted fact, the Court deems it undisputed. See D.N.M.LR-Civ. 56.1(b).
The Defendants assert the additional fact that "[a]t the time Ms. Olah designed the RIF she had no knowledge of the history of Plaintiff's employment within the SLO, nor was she aware that Plaintiff had initially been hired into an exempt position by the Lyons' administration and later transferred to a classified position." MSJ ¶ 38, at 9. See MSJ (QI) ¶ 21, at 7. The Defendants support this fact by directing the Court to Olah's deposition. See MSJ ¶ 38, at 9; Olah Depo. 52:2-55:5. Walton disputes this fact by asserting that "[t]he cited deposition testimony does not support the alleged material fact," and that "Ms. Olah admitted in her deposition that Sandra Lopez, the SLO's Human Resources officer, told Ms. Olah that Ms. Lopez had objected to transferring Walton to the classified Economist A position, and that she `had a problem' with reclassifying the position to the General Manager A position." Evidence in Opposition ¶ 38, at 7. The Defendants reply by reproducing the following testimony from Olah's deposition:
Olah Depo. at 52:17-54:3. Walton also directs the Court to a section of Olah's testimony where she testifies that Lopez told her "at some point" that Lopez objected to transferring Walton into an Economist A position. Evidence in Opposition ¶ 38, at 7; Olah Depo. at 57:6-57:21. Olah does not state, however, when Lopez told her that she thought the transfer was improper, so that portion of her deposition does not specifically controvert the asserted fact. Yet, the Court agrees with Walton that Olah's testimony does not support the Defendants' asserted fact. Olah testified that she learned of Walton's transfer while preparing for the deposition, see Olah Depo. at 55:24-56:5, but Olah also testified that she does not recall if she knew about Walton's transfer when she was working on the RIF, see Olah Depo. at 56:6-56. Viewing the evidence in a light most favorable to Walton — the non-movant — the Court finds that there is a material dispute. Olah has testified both that she first learned of Walton's transfer while preparing for her deposition and that she does not know whether she knew of Walton's transfer while creating the RIF. The Court deems the fact disputed and will not consider it.
Evidence in Opposition ¶ 39, at 8 (citations omitted)(emphasis omitted). Walton directs the Court to a portion of Lopez' deposition in which Lopez testified that the Land Office's official policy was for official complaints to be given to the Deputy Commissioner. See Plaintiff's Lopez Depo. at 130:9-133:13. At that time, Jenks, not Olah, was the Deputy Commissioner, see Response ¶ 16, at 7; Walton Aff. ¶ 16, at 6, thus, this testimony does not create the inference that Olah knew of Walton's complaints to Britt. Walton additionally argues that Britt delivered Walton's memoranda to Lopez. See Evidence in Opposition ¶ 39, at 8. Walton does not argue that Britt delivered the memoranda to Olah, therefore; this additional evidence also does not specifically controvert the Defendants' asserted fact. The Court thus deems the Defendants' factual assertion undisputed.
Evidence in Opposition ¶ 40, at 8-9 (citations omitted). Walton further argues that "[t]hose facts, together with the additional facts set forth in Walton's Affidavit, support an inference that the RIF plan was a pretext to eliminate Walton's position because of her political association with the Lyons administration." Evidence in Opposition ¶ 40, at 9 (citations omitted). That Olah could have considered alternatives to eliminating Walton's position and that the Land Office did not offer Walton another position for which she was qualified are additional facts that do not specifically controvert Defendants' asserted fact. See D.N.M.LR-Civ. 56.1(b). The Court thus deems the fact undisputed. Additionally, the argument that the RIF was a pretext to eliminating Walton's position is a legal argument that is more properly addressed in the analysis section. See also O'Brien v. Mitchell, 883 F.Supp.2d 1055, 1058 n. 1 (D.N.M.2012) (Browning, J.) (citing Ruiz v. City of Brush, No. CIV 05-897 EWN/CBS, at *4 (D.Colo. June 30, 2006)).
Lopez Aff. ¶¶ 5-6, at 2-3. To support her factual assertion, Walton directs the Court to a portion of her affidavit in which she states:
Walton Aff. ¶ 37, at 14. Walton's affidavit contradicts Lopez' affidavit. Compare Walton Aff. ¶ 37, at 14, with Lopez Aff. ¶¶ 5-6, at 2-3. Because the Court must view factual assertions in a light favorable to the non-movant, and because credible evidence supports Walton's factual assertion, the Court will consider Walton's factual assertion true in considering the MSJ. See Estate of Anderson v. Denny's Inc., 987 F.Supp.2d 1113, 1138-39 (D.N.M. 2013) (Browning J.)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that Rhoads v. Miller, Underwood v. Bd. of Cnty. Comm'rs, 415 Fed.Appx. 100, 104 (10th Cir.2011) (unpublished), and Trujillo v. Huerfano Cnty. Bd. of Cnty. Comm'rs, 349 Fed.Appx. 355, 359-60 (10th Cir.2009) (unpublished), have persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion.