United States District Court, D. New Mexico
December 31, 2016
PEGGY WALTON, Plaintiff,
NEW MEXICO STATE LAND OFFICE, RAY POWELL, DONALD BRITT and DELMA BEARDEN, Defendants.
N. Hardwick Sommer, Udall, Sutin, Hardwick & Hyatt Santa
Fe, New Mexico Attorney for the Plaintiff
P. Hatcher Emma D.B. Weber Hatcher Law Group, P.A. Santa Fe,
New Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) Defendant Ray
Powell's Motion in Limine Regarding Alleged Acts of
Commissioner Powell, His Exempt Assistant Commissioners and
Del Bearden, Forming the Basis for Claims of Discrimination
on the Basis of Race, Gender, National Origin or Any Other
Protected Basis Aside From that Under the First
Amendment's Political Association Rights, filed October
24, 2016 (Doc. 114)(“Bearden Motion”); (ii)
Powell's Motion in Limine Regarding Issues Involving
Sandra Lopez, filed October 24, 2016 (Doc. 118)(“Lopez
Motion”); and (iii) Powell's Motion in Limine to
Bar Evidence of or Argument About Any Statement or Actions of
Donald Britt of an Allegedly Discriminatory Nature, filed
October 24, 2016 (Doc. 119)(“Britt Motion”). The
Court held a hearing on November 8, 2016. The primary issues
are: (i) whether the Court should exclude from trial evidence
or arguments concerning alleged acts or statements of
discrimination against Plaintiff Peggy Walton on any basis
other than the First Amendment's protection of political
association rights; (ii) whether the Court should bar
evidence, mention of, or argument about certain issues
regarding Sandra Lopez, the New Mexico State Land
Office's Human Resources Manager; and (iii) whether the
Court should bar from trial evidence or argument concerning
any alleged discriminatory statements or actions that
Defendant Donald Britt took against Walton. For the reasons
stated on the record at the hearing, the Court concludes that
the proffered evidence is relevant and non-prejudicial.
Accordingly, the Court will deny all of Powell's motions
in limine and admit the proffered evidence.
Court discussed this case's factual background at length
in the Court's Memorandum Opinion, filed September, 12,
2014 (Doc. 91)(“QI MO”), disposing of (i) the
Defendants' Motion for Summary Judgment on
Plaintiff's Second Amended Complaint to Recover Damages
for Discrimination and Retaliation and for Violations of
Constitutional Rights, filed November 6, 2013 (Doc.
38)(“MSJ”); and (ii) the Motion for Summary
Judgment of Defendant's Ray Powell, David [sic] Britt and
Delma Bearden as to Count VI of the Second Amended Complaint
on Grounds of Qualified Immunity, filed November 27, 2013
(Doc. 52)(“QI Motion”). The Court will review the
facts that it found undisputed in the QI MO and then turn to
the procedural background.
was employed at the Miner's Colfax Medical Center in
Raton, New Mexico, from January 1988 to December 2001.
See QI MO at 3. While there, Walton, a registered
Republican, became acquainted with Patrick Lyons, at the time
a Republican New Mexico State Senator. See QI MO at
3-4. Lyons was subsequently elected to serve as the New
Mexico State Land Commissioner for a term beginning January
1, 2007. See QI MO at 4. Walton applied for
employment at the State Land Office several times after Lyons
was elected, but she did not receive a response to her
applications. See QI MO at 4. In January, 2008,
Walton informed Lyons of these unsuccessful attempts and
asked whether there were any open positions for which she was
qualified. See QI MO at 4. Lyons said that there
were open positions and urged Walton to keep applying.
See QI MO at 4.
18, 2008, Walton applied for a classified position at the
State Land Office. See QI MO at 5. Walton was
offered an exempt Secretary II position instead of a
classified position, however. See QI MO at 5. Walton
accepted the offer and, on August 25, 2008, began work.
See QI MO at 5. Exempt State Land Office employees
serve at the agency head's will and do not have the
protections afforded to classified employees under the State
Personnel Act, N.M. Stat. Ann. § 10-9-4(D). See
QI MO at 5. Exempt positions exist so that the agency head
can hire employees to assist in implementing his or her
policies. See QI MO at 5. Historically, in the State
Land Office, exempt employees serve under one elected
official and then leave office with that official, thereby
allowing newly elected officials to appoint new people to
serve in that position. See QI MO at 6. Powell, who
served terms as Land Commissioner both before and after
Lyons, is aware of this practice. See QI MO at 6.
first assignment as Secretary II involved working as a
special projects coordinator and lease analyst in the State
Land Office's Commercial Resources Division. See
QI MO at 7. A few months after beginning work in that role,
on October 22, 2008, Walton accepted a position as Director
of the Commercial Leasing Section of the Commercial Resources
Division. See QI MO at 7. As Director, Walton
supervised lease analysts, including Defendant Delma Bearden,
whom the first Powell administration originally hired.
See QI MO at 7.
early 2009, Lyons instructed Lopez, the State Land
Office's Human Resources Manager, to transfer Walton from
the exempt Secretary II position to an Economist A position,
at the time the only vacant classified position in the
Commercial Resources Division. See QI MO at 7. Lyons
concomitantly instructed Lopez to reclassify that Economist A
position to a General Manager I position. See QI MO
at 7. Walton lacked the credentials to fill the Economist A
position, and Lopez knew she was not qualified; Walton was
qualified, however, to serve as a General Manager I.
See QI MO at 7.
directive notwithstanding, Lopez refused to initiate the
requisite paperwork with the State Personnel Office to
reclassify Walton's Economist A position to a General
Manager I position. See QI MO at 7-8. After Lopez
repeatedly refused to initiate paperwork for more than a
year, Lyons directed Walton to bypass Lopez and work directly
with the State Personnel Office to accomplish the
reclassification, which Walton did. See QI MO at 8.
Lopez later informed Elaine Olah, Assistant Commissioner of
the Administrative Services Division, that she thought
reclassification of Walton's Economist A position to a
General Manager I position was improper. See QI MO
reclassification from Economist A to General Manager I was
approved effective September 8, 2010, and Walton continued to
serve as Director of the Commercial Leasing Section of the
Commercial Resources Division. See QI MO at 11.
Walton's management responsibilities as General Manager I
included decisions to correct and discipline Commercial
Resources Division staff exhibiting an unwillingness to
perform their duties ethically, professionally, and in a
non-hostile manner. See QI MO at 11. Indeed, the
most challenging aspect of Walton's role as General
Manger 1, according to the position assignment documentation
form, was the “correction of inappropriate staff
behaviors.” QI MO at 11 (quoting QI MSJ ¶ 11, at
5)(internal quotation marks omitted). Walton's
performance in this capacity, including her establishment of
standards of performance and preparation of employee
evaluations, was evaluated on February 22, 2011. See
QI MO at 11.
served as Land Commissioner for two terms, the second of
which expired December 31, 2010. See QI MO at 11.
Lyons did not run for re-election. See QI MO at 11.
In the November 2, 2010, general election, Powell, a Democrat
who had served as Land Commissioner immediately before
Lyons' first term, defeated Matthew Rush, the Republican
candidate for Land Commissioner. See QI MO at 11-12.
The campaign for Land Commissioner was contentious.
See QI MO at 12. During the campaign, Powell
repeatedly attacked Lyons' record and accused Lyons of
engaging in unethical conduct and mismanaging State Trust
Lands. See QI MO at 12. Powell publicly stated that
Rush, if elected, would continue the same policies as Lyons.
See QI MO at 12.
the summer and fall of 2010, Walton attended numerous
Republican campaign events, including rallies for Susana
Martinez -- a Republican gubernatorial candidate -- at which
Rush was also present. See QI MO at 12. Walton
likewise attended a campaign event for Rush at Rancho de
Chimayo restaurant in Española, New Mexico, along with
Lyons and other State Land Office employees. See QI
MO at 12. Walton's support of Lyons and affiliation with
the Republican Party was no secret within the State Land
Office; indeed, Walton openly displayed in her office a
photograph of herself with Martinez as well as a photograph
of Lyons with a personal note from Lyons attached.
See QI MO at 12. Walton observed Lopez studying
these photographs one time during the fall of 2010.
See QI MO at 12.
voted for Rush in the November 2010 election. See QI
MO at 14. Powell won, however, and was elected Land
Commissioner. See QI MO at 14. The day after the
election, Walton informed Bearden that she had voted for
Rush, and Bearden told Walton that she had voted for Powell.
See QI MO at 14.
November 17, 2010, Mark Corley, an associate of KRQE
investigative reporter Larry Barker, approached Walton at the
back entrance to the State Land Office building when she
arrived at work. See QI MO at 14. Corley informed
Walton that he had acquired Walton's personal human
resources information. See QI MO at 14. Corley then
interviewed Walton by asking her questions about the
circumstances of her hiring, her transfer from the exempt
Secretary II position to the classified Economist A position,
and the reclassification of the Economist A position to the
General Manager I position. See QI MO at 14. Walton
believed, from the context of the interview, that KRQE
intended to portray these events in a negative light.
See QI MO at 14. Walton also suspected that Lopez
was instrumental in furnishing Walton's personal
employment information to KRQE. See QI MO at 14-15.
Lopez was, in fact, instrumental in providing Walton's
information to KRQE by helping the State Land Office respond
to an Inspection of Public Records Act (“IPRA”)
request from KRQE television asking for Walton's
personnel file. See QI MO at 15.
next day, November 18, 2010, Walton contacted Powell by
telephone to tell him about her interview with Corley.
See QI MO at 16. Walton hoped to alert Powell that
KRQE was going to broadcast a negative story about Walton and
the State Land Office. See QI MO at 16. Powell,
along with Harry Relkin, the State Land Office's general
counsel, returned Walton's call on November 21 or 22,
2010. See QI MO at 16. During the call, Walton
informed Powell and Relkin about the circumstances of her
hiring, her transfer to the Economist A position, Lyons'
directive to Lopez to reclassify that position to General
Manager I, and Lopez' refusal to follow Lyons'
instructions. See QI MO at 16.
television broadcast Barker's investigative report,
entitled “[c]ronies move up as officials move out,
” on November 23, 2010. QI MO at 16. KRQE
anchor-reporter Dick Knipfing introduced the segment by
asserting that Walton was “distinctly
unqualified” for her position and that her hiring was
“rigged.” QI MO at 16. Barker then narrated:
“Meet State Land Office employee Peggy Walton. How she
went from low-level political appointee to high-level
division manager in two short years is a fascinating case
study in abuse of power.” QI MO at 17. Barker reported
that the Lyons administration hired Walton for an exempt
position and then moved her into classified service before
the election -- but that Lyons did so in a misleading and
inaccurate manner. See QI MO at 17. Barker also
described the circumstances of Walton's hiring and the
sequence of events that led to her placement in the General
Manager I position. See QI MO at 17. State Personnel
Office Director Sandra Perez, who had approved Walton's
Economist A to General Manager I reclassification, was
interviewed during the Barker report, but Perez deferred to
Lyons to explain the reclassification. See QI MO at
17. Knipfing concluded the investigative report, stating:
“Governor-elect Susana Martinez has promised to fire
any political appointee who has been improperly shifted into
a classified job . . . . New Land Commissioner Ray Powell
will inherit Walton. It is not clear whether her job is
protected.” QI MO at 17. Powell viewed the Barker
investigative report online a few days after KRQE broadcast
it. See QI MO at 18.
took office as Land Commissioner on January 1, 2011, bringing
with him numerous exempt employees who replaced the outgoing
Lyons administration's exempt employees. See QI
MO at 18. Among these new employees were Powell's Deputy
Commissioner Robert Jenks as well as a handful of employees
who reported directly to Jenks, including Chief Legal Counsel
Relkin, Assistant Commissioner of the Commercial Resources
Division Donald Britt, and Assistant Commissioner of the
Administrative Services Division Olah. See QI MO at
18. Before their arrival, Powell posted notes on incoming
exempt employees' office doors “reserving”
those offices. QI MO at 19. Powell mistakenly reserved
Walton's office in this fashion for Britt. See
QI MO 19.
held a meeting with the Commercial Resources Division staff
along with Jenks and Britt on January 3 or 4, 2011.
See QI MO at 19-20. During the meeting, Powell
opined that the Lyons administration's stewardship and
leasing of State Trust Lands was improper and stated that
there would be federal investigations into the matter.
See QI MO at 20. Powell declared that “men in
suits with guns” would come to the office and implied
that they would arrest anyone involved in any wrongdoing. QI
MO at 20. Britt and Bearden later accused Walton of illegally
administering a land sale that closed during Lyons' term
in late December 2010. See QI MO at 20. Rattled by
these events, Walton asked her attorney, Linda Hemphill, to
contact Powell regarding Walton's concerns that she was
being mistreated because of her prior association with Lyons.
See QI MO at 20. Lopez accordingly sent a letter to
Powell on January 27, 2011, requesting that Powell admonish
his staff of the illegality of harassing Walton because of
her association with Lyons. See QI MO at 21. Powell
does not recall taking any action to address the letter's
concerns. See QI MO at 21.
February 8, 2011, Commercial Resources Division meeting,
questions were raised about two leases that the Lyons
administration had handled. See QI MO at 23. Bearden
singled out two female Hispanic, Republican State Land Office
employees who worked in the front office with Lyons and
implied that they were aware of the improper handling of the
leases. See QI MO at 23. Walton, believing
Bearden's conduct constituted harassment, reported this
encounter to Britt. See QI MO at 23-24.
February 9, 2011, Walton was instructed to attend an
Assistant Commissioners' meeting. See QI MO at
24. At the meeting, Walton reported a request she had
received for leasing acreage. See QI MO at 24.
Relkin rolled his eyes and exchanged glances with Powell as
Walton spoke. See QI MO at 24. Walton was
subsequently called into a meeting with Powell on February
16, 2011, at which Relkin, Jenks, Olah, Britt, Lopez, and Amy
Atchley, a management analyst whom Walton supervised, were
all present. See QI MO at 24-25. The meeting was
called to inform Walton that Atchley, who also served in the
Lyons administration, was being moved from the Legal Division
to the Commercial Resources Division, where Walton would
supervise her. See QI MO at 25. No reason was given
for the transfer. See QI MO at 25. Walton was
surprised by the transfer, because Atchley had worked under
her in Commercial Resources during the Lyons administration,
and Walton had written Atchley up for performance and
misconduct on several occasions. See QI MO at 25.
Jenks and Lopez smirked at Walton during the meeting.
See QI MO at 25-26.
and Lyons had lunch on February 18, 2011. See QI MO
at 26. Walton expressed her concerns to Lyons about the
allegations that Walton administered an illegal land sale.
See QI MO at 26. Other State Land Office employees
were present in the restaurant, and, shortly thereafter,
Assistant Commissioner Ralph Gallegos informed Walton that
Powell does not believe in having lunch with employees.
See QI MO at 26. Walton took this statement to mean
that Powell was aware of her lunch with Lyons. See
QI MO at 26.
January, February, and March, 2011, Britt made several
comments to Walton referring to Walton's “buddy
Pat.” QI MO at 26-27. Related to those comments, on
February 22, 2011, Britt told Walton that “no one in
the Land Office respects you.” QI MO at 27. On February
24, 2011, Britt told Walton about a meeting Powell and others
had with Barker and taunted Walton by referring to Barker as
“your friend Larry.” QI MO at 27. Britt also
moved Bearden's office next to his own, met often with
Bearden behind closed doors, and began to direct
Bearden's work, although Walton remained Bearden's
actual supervisor. See QI MO at 27-28. Bearden grew
increasingly insubordinate and hostile towards Walton during
this same timeframe, making derogatory comments of a sexual
and racial nature. See QI MO at 27-28. For example,
Bearden stated that she believed a “man” was
needed to deal with one particular client. QI MO at 28.
Walton's superiors, however, never commented that a male
should hold her General Manager I position. See QI
MO at 29.
Bearden's statements were made in Walton's presence
but were not directed at Walton. See QI MO at 29.
believed that Bearden's comments were inappropriate and
violated NSMLO's non-harassment policy. See QI
OM at 28, 30. Pursuant to that policy, Walton verbally
reported her concerns about Bearden's conduct to Britt on
numerous occasions in February, March, and April 2011.
See QI MO at 30. Walton also sent Britt emails
raising these same concerns on April 7 and 8, 2011.
See QI MO at 30-31. Britt did not respond to
Walton's emails, however, and, to Walton's knowledge,
Britt took no action against Bearden to address Walton's
concerns. See QI MO at 31.
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 QI MO at 31. Britt instructed Walton to appear
thirty minutes into the meeting, and, when Walton arrived,
Board members Powell, Britt, and Olah, and other State Land
Office employees were already seated, and the meeting was
well-underway. See QI MO at 31. Walton took the only
available seat, positioned directly across the conference
room table from Powe l l . See QI M O at 31-32.
During the meeting, Powell addressed the Board, referring to
the Barker report and expressing concern about employees in
inappropriate “protected” roles. QI MO at 32.
Powell posited that these “protected” employees
“for some reason didn't have to meet the leadership
criteria within the division, and somehow got directions from
the front office.” QI MO at 32 (alterations in
original). Powell did not mention Walton by name, but he
glared at her in a threatening and serious manner as he made
these remarks. See QI MO at 32. Powell was not,
however, referring to Walton as a “protected”
employee, but rather two other State Land Office employees.
QI MO at 32-33.
conduct escalated throughout April 2011. See QI MO
at 33. Bearden frequently made comments that struck Walton as
sexually or racially inappropriate, and which she suspected
could subject the State Land Office to liability for creating
a sexually or racially hostile work environment. See
QI MO at 33. When Walton verbally confronted Bearden about
this behavior, Bearden became more contentious and
accusatory. See QI MO at 34. Walton decided to
escalate, and in memoranda to Britt dated April 29 and April
30, 2011, Walton complained about what she believed was
illegal sexual, racial, and religious harassment by Bearden.
See QI MO at 34. Walton did not, however, deliver
these memoranda to Britt until May 6, 2011. See QI
MO at 35. Britt then forwarded Walton's complaints to
Lopez, who, despite State Land Office policy, opted not to
investigate Walton's allegations against Bearden.
See QI MO at 35. All the while, Bearden continued to
make comments to Walton of a sexual and racial nature.
See QI MO at 35. All this notwithstanding, Walton
never prepared a formal written statement or report
concerning Bearden's behavior, never reported Bearden up
the chain of command to Powell, and never reported Bearden to
Lopez. See QI MO at 36.
February, 2011, through the end of her employment, Walton
attended weekly leadership meetings that Powell and Jenks
headed and which various State Land Office management
employees attended. See QI MO at 36. Frequently when
Walton presented reports, expressed opinions, or participated
in discussion, Powell and Jenks were aloof, interruptive, and
intentionally distracting. See QI MO at 36. On
multiple occasions, Powell intimidated and threatened Walton
during those meetings by making comments such as: “[I]f
you don't like it here we will be glad to help you find a
place of your liking.” QI MO at 36-37.
June, 2011, a legislatively mandated Reduction in Force
(“RIF”) reduced the State Land Office fiscal year
2012 budget, which began January 1, 2011, by $609, 000.00 and
reduced the number of full-time equivalent
(“FTE”) positions within the State Land Office
from 153 to 151. See QI MO at 37. Lyons originally
proposed the budget and FTE reductions in September, 2010,
before the November, 2010, general election in which Powell
was elected Land Commissioner. See QI MO at 37-39.
Powell and his staff made significant efforts to save the
State Land Office from these reductions when Powell assumed
office; nonetheless, the New Mexico Legislature and Governor,
through the General Appropriations Act of 2011, imposed
Lyons' proposed budget cuts and RIF reductions.
See QI MO at 39.
designed the RIF in February 2011. See QI MO at 39.
Olah determined that, to reduce the two FTE positions and the
budget as the Appropriations Act required, the optimal
solution was to eliminate one vacant and one filled position.
See QI MO at 39. Ultimately, after reviewing the
State Land Office's organizational structure and mission,
Olah proposed to eliminate a General Manager I position in
the Commercial Resources Division, which had two such
redundant positions. See QI MO at 39. Because one
General Manager I position had numerous subordinates while
the other had none, Olah proposed that the two positions be
combined to consolidate management into a single General
Manager I position. See QI MO at 42. Of the two
positions considered for elimination, Walton's position
was selected. See QI MO at 43. Walton had less
seniority at the State Land Office, and, pursuant to SPO
Regulations, “the order of layoff due to reduction in
force shall be by service date which is determined based upon
the agency hire date.” QI MO at 43.
time she designed the RIF, Olah had no knowledge of the
Barker report. See QI MO at 43. Nor was she aware
that Walton reported Bearden's alleged racially and
sexually inappropriate behavior to Britt until after
Walton's position was eliminated and the RIF fulfilled.
See QI MO at 45. Indeed, Olah was unaware of any
complaints that Walton may have made concerning her working
conditions at the State Land Office or concerning the manner
in which the State Land Office operated. See QI MO
at 47. Moreover, nothing in Walton's personnel file
indicated -- and Olah therefore did not consider -- that
Walton was registered Republican, that she supported the
Republican Party, that she supported Lyons when he was
elected, that she engaged in any political activity, or that
she espoused any political ideology. See QI MO at
did not set out to eliminate Walton's position or
terminate her employment. See QI MO at 47. Olah was
charged with eliminating two FTE positions, and was thereby
required to evaluate the State Land Office's
organizational structure and act to preserve the State Land
Office's functionality. See QI MO at 47. Olah
did not, however, consider available alternatives to
eliminating Walton's position. See QI MO at
49-50. See id. at 50 (noting that “the
Commercial Resources Division of the Land Office now has more
managerial positions than when Walton was employed
there”). Nor did she document any of her analysis or
process in making the determination to eliminate Walton's
position. See QI MO at 47-48. Olah did not even
consult with Powell regarding her recommendations until after
the RIF plan was fully developed. See QI MO at 48.
first presented her RIF design for approval in a meeting with
Powell, Jenks, Relkin, a personnel representative, and
outside counsel on April 6, 2011. See QI MO at 48.
At the meeting, Powell approved Olah's plan to eliminate
Walton's General Manager I position. See QI MO
at 48. Britt had no input or involvement in the formulation
or approval of the RIF; it was only after Powell, Jenks, and
Relkin made a final determination regarding the plan that
Britt learned that Walton's position was slated for
elimination. See QI MO at 49. When Jenks and Olah
informed Britt that the Commercial Resources Division would
be losing Walton's position, Olah was still not aware
that Walton had submitted a written complaint to Britt
regarding Bearden. See QI MO at 49.
submitted the RIF plan to the State Personnel Office on June
10, 2011. See QI MO at 50. The State Personnel
Office approved the RIF that same day and slated the plan for
an effective date of June 30, 2011. See QI MO at 50.
Later that day, after the RIF approval, Walton was called
into a meeting with Olah, Britt, and Lopez, and informed that
her employment was being terminated effective June 30, 2011.
See QI MO at 50. Olah, Britt, and Lopez explained
the RIF and informed Walton that she would be placed on paid
administrative leave effective immediately through June 30,
2011. See QI MO at 50. Walton was directed to pack
her personal belongings, turn in her keys, and leave the
building immediately. See QI MO at 50. Before this
meeting, Walton was never informed that her position could
possibly be eliminated through an RIF. See QI MO at
email dated June 10, 2011, at 1:09 p.m., Powell informed the
entire statewide State Land Office staff that Walton's
employment had been terminated. See QI MO at 51.
Walton was embarrassed and humiliated by this transmission.
See QI MO at 51. In her almost thirty years working
in State government, Walton had never seen such an
announcement of the termination of an employee. See
QI MO at 51.
commenced this action on April 2, 2013, asserting claims
against the State Land Office for: (i) discrimination on the
basis of sex (female) and national origin (Hispanic) in
violation of the New Mexico Human Rights Act, N.M. Stat. Ann.
§ 28-1-7(A) (“NMHRA”); (ii) unlawful
retaliation for reporting that discrimination, in violation
of the NMHRA § 28-1-7-(I); (iii) discrimination on the
basis of sex and national origin in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e; (iv) unlawful retaliation for reporting that
discrimination, in violation of Title VII of the Civil Rights
Act; and (v) a violation of the New Mexico Whistleblower
Protection Act, N.M. Stat. Ann. § 10-16C-1
(“NMWPA”). Second Amended Complaint to Recover
Damages for Discrimination and Retaliation and for Violations
of Constitutional Rights ¶¶ 22-40, at 5-8, filed
August 1, 2013 (Doc. 20)(“Complaint”). Walton
also brought claims pursuant to 42 U.S.C. § 1983 against
Powell, Britt, and Bearden (the “Individual
Defendants”) for violations of constitutional rights --
political association/speech -- that the First and Fourteenth
Amendments protect. See Complaint ¶¶ 41-5,
November 6, 2013, all Defendants moved for summary judgment
on the Complaint. See MSJ at 1. The Defendants
argued that Walton's Title VII and NMHRA retaliation
claims should be examined under the burden-shifting analysis
in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)(“ McDonnell Douglas”).
See MSJ at 15. This analysis, they contended,
requires a showing that: (i) Walton engaged in
“protected opposition to discrimination”; (ii)
she was subject to a “materially adverse” action;
and (iii) the protected activity was causally related to the
materially adverse action. MSJ at 15-16 (citing Webb v.
Padilla, 2009 WL 3379034 (D.N.M. 2009)(Vazquez, C.J.)).
The Defendants conceded that Walton's termination was an
“adverse employment action, ” MSJ at 16, but
argued that Walton did not engage in protected opposition to
discrimination, because there was no evidence that she was
targeted on the basis 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)), and because Olah had no knowledge of
Bearden's alleged discriminatory conduct towards Walton,
so there could be no causal connection between any protected
activity by Walton and Olah's designation of Walton for
the RIF, see MSJ at 18. Similarly, regarding
Walton's NMWPA claim, the Defendants argued that the
claim fails, because Walton cannot establish a causal
connection between the State Land Office's adverse
employment action against Walton and Walton's complaints
about Bearden's conduct. See MSJ at 18-20
(citing Desantis v. Napolitano, 716 F.Supp.2d 1100,
1107 (D.N.M. 2010)(Browning, J.)). Finally, with respect to
Walton's political affiliation claim, the Defendants
contended that there is no evidence that Olah -- who was
solely responsible for designing the RIF -- acted with intent
to discriminate against Walton on the basis of Walton's
political affiliation as a Republican. See MSJ at
22. In any event, the Defendants argued, Walton's
termination was the result of a legislatively mandated
organizational restructuring, not Walton's politics.
See MSJ at 24-25. Further, the Defendants added,
Walton's claim is directed at Powell, Britt, and Bearden,
yet there “is no evidence any of these individuals had
any involvement with the RIF.” MSJ at 24.
November 27, 2013, the Individual Defendants also moved for
summary judgment on Walton's § 1983 political
association claim on the basis of qualified immunity.
See QI Motion at 1. The Individual Defendants argued
that such a claim requires evidence of retaliation based on
support for a “political party, candidate for election,
or political ideology.” QI Motion at 12 (citing
Gann v. Cline, 519 F.3d 1090, 1092-93 (10th Cir.
2008)). Here, however, the Individual Defendants argued,
Walton does not allege that she was chosen for the RIF
because of her registration as a Republican, her support for
the Republican Party, her support for Lyons' election,
“or any other political activity or ideology.” QI
Motion at 12. Rather, the Individual Defendants contended,
Walton asserts that she suffered retaliation based on her
“loose association” with Lyons, Powell's
predecessor. QI Motion at 12. The Individual Defendants
argued that, absent a claim that Walton's affiliation
with Lyons is based on political beliefs, her affiliation by
way of employment alone is not protected. See QI
Motion at 13 (citing Jantzen v. Hawkins, 188 F.3d
1247, 1247 (10th Cir. 1999)). As a result, the Individual
Defendants maintained that they are entitled to qualified
immunity on Walton's § 1983 claim, because Walton
did not have a clearly established right not to be subject to
an RIF based on her original hire by Lyons as an exempt
employee. See QI Motion at 11.
February 24, 2014, the Court issued an order dismissing with
prejudice certain claims that the Complaint asserts.
See Stipulated Order of Dismissal of Certain Claims
at 1, filed February 24, 2014 (Doc. 69)(“Order of
Dismissal”). The Court dismissed Walton's claims of
discrimination asserted against the State Land Office
pursuant to Title VII of the Civil Rights Act and the NMHRA.
See Order of Dismissal ¶¶ A, B, at 1. The
Court also dismissed Walton's § 1983 political
retaliation claim asserted against Bearden and Britt.
See Order of Dismissal ¶ C, at 1. Finally, the
Court dismissed Walton's § 1983 political
retaliation claim as against Powell to the extent it alleged
a violation of Walton's First Amendment right to speak
about matters of public concern. See Order of
Dismissal ¶ D, at 1. The Court left intact Walton's
retaliation claims under Title VII of the Civil Rights Act
and the NMHRA; Walton's claim asserted pursuant to the
NMWPA; and Walton's § 1983 claim against Powell, to
the extent it alleges retaliation by Powell for Walton's
political association with the Lyons administration.
Court issued two orders on August 27, 2014: (i) granting in
part and denying in part the Defendants' MSJ,
see Order, filed August 27, 2014 (Doc.
85)(“MSJ Order”); and (ii) denying the QI Motion,
see Order, filed August 27, 2014 (Doc. 86)(“QI
Order”). In the MSJ Order, the Court granted summary
judgment on Walton's claims asserted against the State
Land Office under Title VII of the Civil Rights Act, the
NMHRA, and the NMWPA, but denied summary judgment with
respect to Walton's § 1983 political
association/speech claim asserted against the Individual
Defendants. See MSJ Order at 1. In the QI Order, the
Court denied the Individual Defendants' assertion of
qualified immunity with respect to the § 1983 claim.
See QI Order at 1.
pretrial conference held September 3, 2014, the Defendants
informed the Court that they intended to file an immediate
interlocutory appeal from the Court's QI Order.
See Clerk's Minutes at 1, filed September 3,
2014 (Doc. 89). This action exerted pressure on the Court to
quickly issue a memorandum opinion detailing the rationale
for its decision so that the United States Court of Appeals
for the Tenth Circuit would have the benefit of the
Court's reasoning while reviewing the appeal. To expedite
the process, the Court bifurcated its analysis between two
memoranda opinions: (i) on September, 12, 2014, the Court
issued a memorandum opinion explaining its qualified immunity
ruling, see QI MO at 1; and (ii) on July 7, 2015,
the Court issued a supplemental memorandum opinion explaining
its disposition of all remaining issues in the MSJ Order,
see Supplemental Memorandum Opinion at 1, filed July
7, 2015 (Doc. 102)(“MSJ MO”).
QI MO, the Court explained that it denied the QI Motion,
because Walton “produced sufficient evidence for a
reasonable jury to conclude that her constitutional rights
under the First and Fourteenth Amendments were violated . . .
.” QI MO at 101. Walton's § 1983 claim is not
based on a “loose affiliation” with Lyons or an
affiliation with the Republican Party, the Court reasoned;
rather, the Court construed Walton's claim as
“asserting that Powell retaliated against her because
of her political affiliation with the Lyons
administration.” QI MO at 103. The Court held that the
First Amendment protects such affiliation with a political
figure, see QI MO at 106, and that there is a
genuine issue of material fact whether Walton's political
affiliation with the Lyons administration was a
“substantial or motivating factor” in the
decision to terminate her position, see QI MO at 109
(citing Gann v. Cline, 519 F.3d at 1092-93). The
Court, moreover, concluded that, regardless whether the
Individual Defendants can point to a legitimate,
nondiscriminatory reason to terminate Walton's position,
Walton “produced sufficient evidence for a jury to
conclude that the Defendants' proffered reasons are
pretextual.” QI MO at 109 (citing Laidley v.
McClain, 914 F.2d 1386, 1393-94 (10th Cir. 1990)).
Regarding qualified immunity's second prong -- whether
the allegedly violated right was clearly established -- the
Court concluded that “Walton's right to not be
retaliated against because of her political affiliation with
the Lyons administration was clearly established when Powell
terminated her position.” QI MO at 111.
Court subsequently issued the MSJ MO on July 7, 2015,
addressing the remaining issues that the QI MO left
unresolved. The Court first granted the MSJ as it pertained
to Walton's retaliation claims under Title VII and under
the NMHRA. See MSJ MO at 25-30. The Court explained
that, although Walton engaged in protected activity by
complaining about Bearden's conduct, see MSJ MO
at 26 (“Complaints to superiors about discriminatory
conduct constitute protected activity”)(citing
O'Neal v. Ferguson Const. Co., 237 F.3d 1248,
1255 (10th Cir. 2001)); and although the RIF was an adverse
employment action, see MSJ MO at 26
(“Termination of employment constitutes an adverse
employment action.”)(citing Burlington Indus. Inc.
v. Ellerth, 524 U.S. 742, 744 (1998)); Walton failed to
demonstrate a causal connection between Walton's activity
and the RIF, because Powell and Olah had no knowledge of
Bearden's allegedly discriminatory conduct when they made
the decision to terminate Walton's position, see
MSJ MO at 27-28. See also id. at 26 (noting that a
causal connection between protected conduct and adverse
action is required)(citing Proctor v. United Parcel
Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)). The Court
also granted the MSJ as it pertained to Walton's NMWPA
claim. See MSJ MO at 30-37. The Court concluded that
Walton engaged in a protected disclosure under the NMWPA by
reporting Bearden's conduct which she believed, in good
faith, was unlawful or at least improper under the State Land
Office's harassment policy. See MSJ MO at 33
(citing N.M. Stat. Ann. § 10-16C-3(A)). Here again, the
Court concluded that the Defendants took an adverse action
against Walton by creating and implementing the RIF.
See MSJ MO at 34 (citing Lockheed Martin Corp.
v. Admin. Review Bd., U.S. Dept. of Labor, 717 F.3d
1121, 1121 (10th Cir. 2013)). As with Walton's Title VII
and NMHRA claims, however, the Court held that Walton failed
to establish a causal connection between the RIF and
Walton's protected disclosures about Bearden's
conduct -- that Walton failed to show that the disclosure was
a “contributing factor” in the RIF decision. MSJ
MO at 34-35 (citing Lockheed Martin Corp. v. Admin.
Review Bd., U.S. Dept. of Labor, 717 F.3d at 1129).
Tenth Circuit issued an opinion resolving the Defendants'
interlocutory appeal from the Court's QI Order on April
19, 2016. See Walton v. Powell, 821 F.3d 1204 (10th
Cir. 2016). After discussing various procedural issues at
some length,  the Tenth Circuit concluded that a triable
issue evidence he argues is inadmissible to prove
Walton's § 1983 claim based on the Court's
rulings in the MSJ MO. The Court will discuss each motion and
their responsive pleadings in turn.
The Bearden Motion.
moves in limine to exclude from trial any evidence or
arguments concerning alleged acts or statements of
discrimination on any basis other than the First
Amendment's protection of political association rights.
See Bearden Motion at 1. Walton, Powell notes,
testified in her deposition to various instances she alleged
“formed the basis of her discrimination claims against
other individuals or the agency itself on the basis of gender
and national origin.” See Bearden Motion at 2.
Powell notes that Walton alleged that Britt, her supervisor,
made derogatory statements about “Indians, ” for
example, and that Walton originally based her claim for
discrimination on the basis of national origin on those
statements. Bearden Motion at 2. Powell also notes that
Walton attributed numerous statements to Bearden, her
subordinate, which she thought “were discriminatory at
least on the basis of gender.” Bearden Motion at 2
(noting that Walton said Bearden made “‘rude,
sexually inappropriate, and racially inappropriate comments
to Walton'”)(quoting First Amended Complaint to
Recover Damages for Discrimination and Retaliation and for
Violations of Constitutional Rights ¶ 13.D, at 3, filed
April 22, 2013 (Doc. 10-1)).
notes that Walton formally reported Bearden's
“discriminatory conduct” to Britt on April 7,
2011, and May 6, 2011. Bearden Motion at 2. Powell notes,
however, that Olah identified Walton's position for
termination on March 30, 2011, pursuant to the legislatively
mandated 2011 RIF, and that Powell approved the termination
plan on April 6, 2011. See Bearden Motion at 2-3.
Accordingly, Walton argues that the Court concluded in its
MSJ MO that Walton failed to establish the
“causation” prong of the three-part test for
retaliation claims, because Walton filed her formal
complaints only after Olah and Powell had already decided to
terminate her position. Bearden Motion at 2-3 (citing MSJ MO
at 27). Based on this conclusion, Powell asks the Court to
“bar evidence of or argument about any statements
attributable to any individual . . . which previously formed
the basis for Plaintiff's claims that she was
discriminated against on the basis of gender or national
origin.” Bearden Motion at 3. Powell also requests that
the Court “rule in limine that any evidence of or
argument about Plaintiff's April 7 and May 6, 2011
complaints about Del Bearden should be barred from this
trial.” Bearden Motion at 3.
responded on October 28, 2016. See Response to
Motion in Limine Regarding Discriminatory Statements and
Actions (Doc. 114) at 1, filed October 28, 2016 (Doc.
123)(“Bearden Motion Response”). Walton begins by
previewing her trial testimony, which she says will be based
on her Affidavit. See Bearden Motion Response at 1
(referring to Affidavit of Peggy Walton (executed December
18, 2013), filed December 19, 2013 (Doc. 55-1)(“Walton
Aff.”)). Walton notes that she will testify that
Bearden was increasingly hostile and insubordinate towards
her from January to April 2011, and that Britt moved
Bearden's office next to his and assumed a primary
supervisory role over Bearden during that time frame.
See Bearden Motion Response at 1 (asserting that
Bearden and Britt had a “very close
relationship”). Walton says that she will testify that
“Bearden increasingly began to make derogatory comments
of a sexual and racial nature, which Walton believed, based
upon her training, were very inappropriate and violated State
Land Office (SLO) policies.” Bearden Motion Response at
1-2 (citing Walton Aff. ¶ 27, at 10). Walton will
testify, she notes, that, during February, March, and April
2011, she “verbally reported her concerns about Ms.
Bearden's conduct to Mr. Britt on numerous
occasions.” Bearden Motion Response at 2. She contends
that she also sent Britt emails on April 7 and 8, 2011, in
which she raised concerns about Bearden's conduct, but
that Britt did not respond. See Bearden Motion
Response at 2 (citing Walton Aff. ¶ 13, at 4-5). Walton
says that she will testify that her emails were not given to
human resources and that the State Land Office “took no
action to investigate Walton's complaints as required by
SLO Policy.” Bearden Motion Response at 2.
to her legal argument, Walton contends that motions in limine
“‘are fraught with problems, '” Bearden
Motion Response at 2 (quoting Kysar v. BP Am. Prod.
Co., 2012-NMCA-036, ¶ 23, 273 P.3d 867 (citation
omitted)), and that a motion in limine should therefore
“‘be used . . . as a rifle and not as a shotgun,
pointing out the objectionable material and showing why the
material is inadmissible and prejudicial, '”
Bearden Motion Response at 3 (quoting Proper v.
Mowry, 1977-NMCA-080, 568 P.2d 236, 240-241).
Powell's motion, she argues, “is a shotgun blast[
--] not a rifle shot, ” because he “broadly seeks
to exclude Walton's testimony regarding the evidentiary
basis of her discrimination and retaliation claims, but has
not pinpointed the specific evidence that he wishes to
exclude.” Bearden Motion Response at 3. In any event,
she avers, evidence that the State Land Office did not
investigate her complaints about Bearden's behavior is
relevant under rule 401 of the Federal Rules of Evidence to
her § 1983 political retaliation claim, because it
supports a “reasonable inference that Powell had
determined, earlier than Powell has admitted, to terminate
Walton's employment.” Bearden Motion Response at 3.
She argues, moreover, that this evidence illustrates that
Powell was hostile towards her, and a reasonable inference
can be drawn that such hostility was “directed or
condoned by Powell in retaliation for Walton's
association with Patrick Lyons.” Bearden Motion
Response at 3.
argues that Powell's, Britt's, and Bearden's
further statements and actions, upon which she based her
discrimination and retaliation claims, also support her
§ 1983 First Amendment claim. See Bearden
Motion Response at 4. She notes, for example, that Britt made
several comments to her referring to her support for Lyons
and that, related to those comments, Britt told her that
“no one in the Land Office respects you.” Bearden
Motion Response at 4. Walton also contends that Powell was
disrespectful towards her when she gave reports, expressed
opinions, and participated in discussions at weekly
leadership meetings. See Bearden Motion Response at
4. Finally, she argues that Powell “frequently
intimidated and threatened” her in those meetings.
Bearden Motion Response at 4 (citing Walton Aff. ¶ 33,
at 12-13). Walton concludes that, because these statements
and actions support the remaining § 1983 political
retaliation claim, and because Powell has not identified any
specific actions or statements that he wishes to exclude,
“the Court should not even consider the Motion.”
Bearden Motion Response at 4.
The Lopez Motion.
moves in limine to bar any evidence, mention of, or argument
about various issues regarding Lopez, the State Land
Office's Human Resources Manager. See Lopez
Motion at 1. Powell notes that Lopez, by means of her
position in Human Resources, was familiar with the State Land
Office's hiring of Walton into an exempt Secretary II
position as well as her subsequent hire into a classified
Economist A position, which was then reclassified into the
General Manager I position that was ultimately eliminated in
the 2011 RIF. See Lopez Motion at 1-2. Powell
further notes that Lopez was involved in the administrative
reclassification of Walton's Economist A position to a
General Manager I position which later became the subject of
Barker's November 23, 2010, investigative report.
See Lopez Motion at 2 (citing Deposition of Sandra
Lopez at 54-74 (taken December 4, 2013), filed October 24,
2016 (Doc. 118-1)(“Lopez Depo.”)). Powell argues
that Walton intends to testify that Lopez saw Walton as
unqualified to hold the Economist A position and that she may
have improperly provided to Barker information regarding the
reclassification. See Lopez Motion at 2 (citing
Lopez Depo. at 82-89). Powell argues that Walton will also
testify that she filed a complaint against Lopez regarding
her reclassification to the General Manager I position and
that this caused Lopez to have “discriminatory
animus” towards Walton, which, in turn, “was a
causal agent in the selection, by Elaine Olah, of her GM I
position for the RIF in June 2011.” Lopez Motion at
argues that he expects Walton and Lopez to testify to
differing accounts. See Lopez Motion at 3. Walton,
he postulates, will testify that Lyons directed Lopez in 2009
to transfer Walton from the Secretary II position to the
Economist A job and that, because Lopez knew Walton was not
qualified for that position, Lopez was directed to assist in
reclassifying the Economist A position to a General Manager I
position, for which Walton was qualified. See Lopez
Motion at 3. Powell argues that Walton will further testify
that Lopez refused to initiate the paperwork for more than a
year, at which point Lyons had Walton “bypass HR and
work directly with the State Personnel Office for that
reclassification.” Lopez Motion at 3. Powell argues
that Lopez, by contrast, will testify that Lyons asked her to
place Walton in the Economist A job, that she did so because
she believed Walton was qualified on the basis of experience,
and that it was not improper to place Walton into that job
even though Lyons later asked her to reclassify Walton into
the GM I position. See Lopez Motion at 3. Lopez will
further testify, Powell argues, that there were delays in
this reclassification, that she did what Lyons asked her to
do, and that she never did “anything intentionally to
delay the job reclassification for Ms. Walton, nor did she
ever hold any discriminatory animus against her.” Lopez
Motion at 3. Powell argues that, finally, Lopez will testify
that she “had no involvement with the KRQE broadcast of
Ms. Walton's job history which was in part the subject of
the Barker report” and that she did not act with
discriminatory intent when she told KRQE about Walton's
allegedly improper reclassification history in response to an
IPRA request by KRQE. Lopez Motion at 3-4. None of these
events “have any relevance to the issues which will be
presented to the jury in this case, ” Powell contends.
Lopez Motion at 4. Powell argues that “[t]here is no
evidence linking Ms. Lopez to the decisions to eliminate
Plaintiff's position.” Lopez Motion at 4.
Specifically, he argues that Lopez had no involvement in the
RIF design or in the selection of Walton's General
Manager I position, that Olah was “solely tasked”
with the RIF, and that Lopez was not even aware of Olah's
design of Walton's General Manager I position until
mid-April 2011. Lopez Motion at 4. Moreover, Powell argues
that the Court's MSJ MO rejected Walton's claims that
Lopez' alleged “discriminatory intent”
against her formed the basis of Powell's and Olah's
actions with respect to the RIF. Lopez Motion at 4. Powell
reads the Court's MSJ MO as “finding no evidence
Ms. Lopez communicated unfavorable facts to those decision
makers or otherwise communicated her bias to Mr. Powell and
Ms. Olah.” Lopez Motion at 4 (contending that the Court
rejected this “Cat's Paw” theory)(citing
Staub v. Proctor Hospital, 526 U.S. 411, 416
(2011)). Consequently, Powell argues, Walton should be
precluded from referencing, arguing about, or examining
witnesses concerning any aspect of Lopez' involvement
with Walton's reclassification into an Economist A and
General Manager I position, “nor any issue claiming Ms.
Lopez ‘tipped off' KRQE concerning Ms. Walton's
reclassification history.” Lopez Motion at 4. Powell
argues that such evidence is irrelevant under rule 401 of the
Federal Rules of Evidence, see Lopez Motion at 4-5,
and that any probative value such evidence may have is
“substantially outweighed by considerations under FRE
403, ” Lopez Motion at 5.
makes one final argument: that the Court should bar from
trial evidence or argument concerning any relationship
between Lopez and Dennis Garcia, a State Land Office Deputy
Commissioner in 2010. See Lopez Motion at 5. Powell
argues that Lopez' relationship with Garcia “has no
bearing on Plaintiff's claim that she was retaliated
against by Commissioner Powell for her association with the
Lyons' administration.” Lopez Motion at 5. He
contends that this evidence is “irrelevant to the
issues in this case.” Lopez Motion at 5.
responded on October 28, 2016. See Response to
Motion in Limine Regarding Issues Involving Sandra Lopez
(Doc. 118) at 1, filed October 28, 2016 (Doc.
127)(“Lopez Motion Response”). Walton first
recounts her version of the relevant facts. See
Lopez Motion Response at 1-3. Walton notes that Lyons
instructed Lopez to transfer Walton from the exempt Secretary
II position to the classified Economist A position in early
2009 and then to reclassify that position to a General
Manager I position. See Lopez Motion Response at
1-2. Walton argues that she expected Lopez to reclassify the
position, but that “Lopez repeatedly refused to
initiate the paperwork for over a year . . . .” Lopez
Motion Response at 2. She notes that Lyons finally had Walton
bypass Lopez and work directly with the New Mexico State
Personnel Office to accomplish the reclassification, which
was approved on September 8, 2010. See Lopez Motion
Response at 2. Walton notes that, shortly thereafter, in
mid-November 2010, she informed Powell that a KRQE
investigative reporter had interviewed her, and that
“KRQE would be broadcasting a negative story about
Walton and the [MS]SLO.” Lopez Motion Response at 2.
Walton notes that she told Powell about the circumstances of
her reclassification, and that she believed Lopez had
“furnished her personnel information to KRQE
television.” Lopez Motion Response at 2-3 (citing
Walton Aff. ¶ 14, at 5).
her Response to Powell's Bearden Motion, Walton argues
that Powell has “moved, very broadly, to exclude issues
regarding Sandra Lopez, but he has not identified, with
particularity the specific evidence that he wishes the Court
to exclude.” Lopez Motion Response at 3 (internal
quotation marks omitted). See id. (arguing that
“Powell's motion is a shotgun blast[ --] not a
rifle shot”). In any event, Walton argues, the
chronology of the events surrounding her hiring, transfer,
and ultimate reclassification to the General Manager I
position that she held at the time Powell terminated her
employment “is relevant to show that Walton's
transfer from an exempt position to a classified position was
not an ‘eve of election political favor' to Walton
as implied by KRQE's Larry Barker investigative
report.” Lopez Motion Response at 3. Walton also argues
that she repeatedly told Powell, both prior to and during his
term, that she believed Lopez had a “personal animus
towards her, ” that Lopez had “improperly
provided Walton's confidential personnel information to
KRQE, ” and that she “believed that she was being
mistreated because of her political association with Patrick
Lyons.” Lopez Motion Response 3-4. Walton contends that
a reasonable inference can be drawn from Powell's failure
to investigate these allegations “that Powell was
determined to terminate Walton's employment, and did not
need to investigate.” Lopez Motion Response at 4.
Walton further notes that, because Powell has identified
Lopez as a witness, “Walton may properly cross-examine
Ms. Lopez, and offer evidence of Ms. Lopez's personal
animus towards Walton, to show Ms. Lopez's bias and
impeach her credibility.” Lopez Motion Response at 4
(citing Fed.R.Evid. 404(b), 607, and 611(b); United
States v. Lara, 956 F.2d 994, 997 (10th Cir. 1992)).
Finally, Walton contends that “evidence of Ms.
Lopez's personal animus towards Walton is part of the
res gestae, ” because it is
“inextricably intertwined with proper evidence
regarding Walton's employment history, Walton's
complaints to Powell about the conduct of Sandra Lopez, and
Powell's failure to act on those complaints.” Lopez
Motion Response at 4 (citing United States v.
Ganadonegro, WL 3957549, at *4 (D.N.M. 2011)(citing
United States v. McVeigh, 153 F.3d 1166, 1203 (10th
Cir. 1999))(internal quotation marks omitted).
The Britt Motion.
moves in limine to bar evidence or argument regarding
Britt's alleged discriminatory statements or actions.
See Britt Motion at 1. Powell notes that Britt,
originally a Defendant in this case, was an Assistant
Commissioner for the Commercial Resources Division under the
Powell administration and was Walton's immediate
supervisor. See Britt Motion at 1. Walton charged
Britt with violations of Walton's constitutional rights,
Powell notes, including discriminatory actions, statements,
and retaliation for Walton's constitutionally protected
activity “which is alleged to have resulted in her
termination through the [RIF] process.” Britt Motion at
1. Powell argues that the Court's MSJ MO concluded that
Walton “failed to establish any evidence that her
separation from the State Land Office was a result of actions
taken by Mr. Britt in retaliation to Plaintiff's alleged
protected activity.” Britt Motion at 1-2. Powell
specifically points to the Court's conclusion that Britt
did not make the decision to terminate Walton's position,
and that he did not “even know or become aware that
Walton's position would be eliminated until after
Commissioner Powell approved the RIF plan, determined by
Elaine Olah on March 30, 2011 at a meeting on April 6,
2011.” Britt Motion at 3. He argues that the Court
“rightly noted” that Walton's complaints to
Britt, largely involving Bearden, were sent after April 6,
2011. Britt Motion at 2. Accordingly, he argues, the Court
“found there was no basis for establishing that Don
Britt . . . violated [Walton's] rights under Title VII
and the [NMHRA] in retaliation for Ms. Walton's reporting
of protected activity.” Britt Motion at 2 (citing MSJ
MO at 27). Indeed, Powell contends, the Court dismissed all
claims against Britt because “‘Britt did not
decide to terminate Walton's position, and he did not
know that Walton's position would be eliminated until
after Ray Powell . . . approved the final
determination.'” Britt Motion at 2 (quoting MSJ MO
at 27). Powell concludes that the Court should bar any
evidence of Britt's allegedly discriminatory statements
or actions towards Powell. See Britt Motion at 2.
Such evidence is irrelevant, he argues, “because Mr.
Britt was not involved in the design or approval of the
RIF” and because he did not “even become aware of
the RIF plan until after Commissioner Powell finally approved
Ms. Olah's plan on April 6, 2011.” Britt Motion at
responded on October 28, 2016. See Response to
Motion in Limine Regarding Issues Involving Donald Britt
(Doc. 119) at 1, filed October 28, 2016 (Doc.
128)(“Britt Motion Response”). Walton begins by
previewing her trial testimony with respect to her
interactions with Bearden. See Britt Motion Response
at 1. She notes that she will testify that, from January to
April 2011, Bearden was increasingly hostile and
insubordinate. See Britt Motion Response at 1. She
notes that she will further testify that Britt and Bearden
appeared to have a “very close relationship, ”
and that Britt became Bearden's primary supervisor. Britt
Motion Response at 1. Moreover, she asserts that she will
testify that she reported her concerns about Bearden's
“derogatory comments of a sexual and racial
nature” to Britt on numerous occasions, but that her
concerns were not relayed to Human Resources, nor did the
State Land Office take any action to investigate her
complaints as its policy requires. Britt Motion Response at
1-2 (citing Walton Aff. ¶ 27, at 10 and ¶ 13, at
her prior responses to Powell's motions in limine, Walton
asserts that “Powell has not identified, with
particularity, the specific evidence that he wishes the Court
to exclude. The Court should deny the Motion on this basis
alone.” Britt Motion Response at 2. Regardless, she
contends, she “intends to testify regarding all of her
interactions with Mr. Britt, including statements of Mr.
Britt that Walton perceives were discriminatory.” Britt
Motion Response at 2. She argues that “[m]ost, if not
all, of those statements support Walton's political
retaliation claim against Powell because they show animus
towards Walton because of her association with Mr. Lyons'
[sic].” Britt Motion Response at 2. She posits that
Britt's statements referring to her “buddy Pat
[Lyons]” show Britt's awareness of Walton's
relationship with Lyons. Britt Motion Response at 2
(alterations in original). Indeed, she argues, the fact that
Britt reported directly to and met frequently with Powell
supports a “reasonable inference . . . that Mr. Britt
and Powell discussed Walton's association with Lyons,
notwithstanding their denials.” Britt Motion Response
further contends that evidence of her numerous complaints to
Britt about Bearden is relevant. See Britt Motion
Response at 3. In her view, that the State Land Office
“did not, contrary to its own policies, investigate
Walton's complaints about Ms. Bearden's
discriminatory behavior, support[s] a reasonable inference
that Powell had determined, earlier than Powell has admitted,
to terminate Walton's employment.” Britt Motion
Response at 3. She points to Bearden's statements,
Bearden's association with Britt and Powell, and the
“lack of action to remedy the hostile working
environment” as evidence that “Powell and his
lieutenants were hostile towards Walton.” Britt Motion
Response at 3. Based on this, Walton concludes that a
reasonable inference can be drawn that the hostility
“was directed or condoned by Powell in retaliation for
Walton's association with Patrick Lyons.” Britt
Motion Response at 3.
Court held a hearing on November 8, 2016. See
Transcript of Motion Hearing held on 11/08/2016 at 1
(“Tr.”). Beginning with the Bearden Motion, the
Court asked Powell whether he can identify specific
statements that Walton seeks to admit at trial to which
Powell objects. See Tr. at 29:8-11 (Court). Powell
acknowledged that he “can't anticipate everything
that Ms. Walton will say, ” but noted that Walton has
previously proffered evidence of racially inappropriate
remarks regarding her Native American ethnicity and
inappropriate remarks of a sexual nature. See Tr. at
28:14-29:11 (Hatcher). Powell noted that “all of these
claims were of record before the Court in its supplemental
memorandum opinion [where the Court] dismissed everything
except for the political association claim against Mr.
Powell.” Tr. at 29:13-18 (Hatcher). Powell explained
that his primary concern is that these statements are not
relevant to the political association claims. See
Tr. at 29:19-24 (Hatcher). Powell argued that Britt's
comments are not relevant, for example, because the Court
concluded in its MSJ MO that Britt had no role in the RIF
that resulted in the termination of Walton's position,
and that the Court determined that there was no evidence
“supporting a claim against Don Britt on retaliating,
either discriminating [against] Ms. Walton or retaliating
against her for anything, including political
association.” Tr. at 30:13-18 (Hatcher). Powell argued
that the Court likewise concluded that Bearden was “not
a decision maker, ” and rejected Walton's claims
that Bearden “sabotaged” Walton's work,
“harassed” Walton, and “made lewd
comments” about Walton's sex and national origin.
Tr. at 31:15-22 (Hatcher). Powell reiterated that he
“fear[s] . . . Walton is going to get up and she's
going to testify as to these and perhaps other matters that I
can't anticipate.” Tr. at 31:23-32:1 (Hatcher).
Powell noted that Walton's political association claim
against Powell is all that remains; comments by
“non-decision makers” such as Britt, Bearden, and
Lopez are therefore irrelevant, he argued. Tr. at 32:6-11
(Hatcher). Powell accordingly asked the Court to
“restrict any testimony about discriminatory statements
or actions taken by other people who were not decision makers
in this case.” Tr. at 32:11-15 (Hatcher).
Court pressed Powell to detail what precise holding he wished
the Court to reach with respect to the Bearden Motion.
See Tr. at 33:8-10 (Court). Powell posited that the
Court should exclude any acts or statements by anyone other
than Olah or Powell -- the “only two known decision
makers” -- and any acts or statements “for any
basis other than political association discrimination.”
Tr. at 33:11-22 (Hatcher). Turning to Walton, the Court
proposed that Walton articulate which statements she wishes
to admit to ascertain whether such a holding would be
acceptable. See Tr. at 34:12-18 (Court).
first argued that she seeks to admit Britt's
“disparaging” statements “suggesting that
he disapproved of [Walton's] relationship with Patrick
[Lyons].” Tr. at 35:1-5 (Hardwick). Walton said that
she did not, however, intend to offer Britt's statements
based on race, gender, or national origin. See Tr.
at 35:18-22 (Court, Hardwick). With respect to Bearden,
Walton noted that she intended to admit evidence of racially
and sexually derogatory statements. See Tr. at
36:10-37:6 (Hardwick). Walton said that she will proffer
evidence that she complained about these statements, but that
the State land Office took no investigative action
“because there was already a plan in place to dismiss
Peggy Walton from employment at the state land office.”
Tr. at 37:11-19 (Hardwick). Walton clarified, however, that
the jury need not hear Bearden's actual statements --
that it is sufficient to refer generally to “sexual and
racial” comments. Tr. at 38:5-15 (Court, Hardwick).
rejoinder, Powell argued that it is immaterial whether Walton
proffers the subject evidence in the form of general acts or
specific statements. See Tr. at 39:24-5 (Hatcher).
In Powell's view, the evidence -- whatever the form -- is
irrelevant, because “there is no evidence that
[Bearden] was a decision make[r].” Tr. at 40:16-20
(Hatcher). Powell also reiterated that the Court's MSJ MO
concluded that Powell's decision to terminate Walton was
reached without knowledge of Bearden's alleged
“discriminatory treatment” of Walton or of
Walton's complaints about that treatment. Tr. at 41:3-13
(Hatcher). See id. at 12-13 (“Walton thus does
not satisfy the causation prong.”). Powell argued that
testimony regarding Bearden's actions or statements would
therefore wrongly implicate her -- a non-decision maker -- as
part of the “team that targeted  Walton for this RIF
by being insubordinate to Ms. Walton, ” which, in turn,
would invite the improper inference that Bearden continued to
harass Walton because she was slated for termination anyway
because of her political association with Lyons. Tr. at
41:13-42:7 (Hatcher). Powell concluded that the Court should
limit evidence of discriminatory animus to that attributed to
Powell and Olah, who were “singularly concerned about
how to meet the appropriation cuts” resulting in the
RIF. Tr. at 42:16-43:6 (Hatcher).
heard arguments from both sides on the Bearden Motion, the
Court stated that it would review its MSJ MO to see if its
reasoning precludes this evidence. See Tr. at
43:12-13 (Court). The Court indicated, however, that it was
“inclined to think not, ” because the
“sanitized version” of events that Walton will
present at trial will not address with particularity any acts
or statements allegedly made with non-political
discriminatory animus. Tr. at 43:13-21 (Court). See
id. at 43:20-21 (“I'm inclined to allow that
story to proceed.”). The Court elaborated that the MSJ
MO disposed of claims asserted under the NMHRA, the NMWPA,
and Title VII, but that it did not make rulings precluding
any evidence. See Tr. at 43:22-44:3 (Court).
parties turned next to the Britt Motion because of its
significant argumentative overlap with the Bearden Motion.
See Tr. at 44:11-14 (Hatcher). Powell began, arguing
that the Court's MSJ MO found that there were no material
issues of fact concerning Britt's alleged discrimination
against Walton, because Britt “simply was not part of
the decision making team” that terminated Walton. Tr.
at 44:23-45:7 (Hatcher). Powell stressed that Walton's
only remaining claim is for discrimination by Powell based on
political association, and any allegation of discrimination
by Britt therefore is irrelevant. See Tr. at 45:7-11
(Hatcher). Powell noted that there is no evidence that Britt
told Powell about any of Walton's complaints about
Bearden, and that Britt was not even apprised of the RIF
until weeks after Powell approved Olah's RIF design for
Walton. See Tr. at 45:13-20 (Hatcher). In fact,
Powell argues, Britt was unhappy when he eventually learned
of the RIF design, because he did not wish to lose a division
director working underneath him. See Tr. at 45:20-24
to Walton, the Court asked how the disputed evidence is
relevant. See Tr. at 46:2-12 (Court). Walton
responded that evidence of Britt's statements and actions
is relevant to determining the motivation for Walton's
termination -- Powell's assertion that Britt was never
consulted about terminating Walton is not credible, Walton
argued, because Britt was part of Powell's executive
staff and head of commercial resources, and because Britt was
Walton's direct supervisor. See Tr. at
46:21-47:9 (Hardwick). Walton elaborated that she did not
necessarily seek to prove that Britt was involved in the
final decision to terminate Walton's position, but rather
that “he was involved in the discussion that led to
Peggy Walton being singled out for the RIF.” Tr. at
48:23-49:2 (Hardwick). This, Walton avers, is only logical,
because Britt heads commercial resources and oversaw Walton,
who “supervise[d] most of the employees in that
division.” Tr. at 48:21-23 (Hardwick).
briefly responded, again reiterating that the Court's MSJ
MO “clearly found that [Britt] wasn't
involved” in the decision to terminate Walton. Tr. at
50:11-16 (Hatcher). Powell stated that his fear is that
“Walton is just throwing out all of this
information” to improperly suggest that Britt, by
virtue of his close proximity to Powell, “must have
told him about [his] problems with Peggy Walton.” Tr.
at 51:5-22 (Hatcher). Powell contended that “the rules
of evidence require more than that.” Tr. at 51:5-7
(Hatcher). Accordingly, Powell requested that the Court to
require that Walton “show the Court something other
than just simply asking the jury to speculate, that [Britt]
must have been part of the team.” Tr. at 51. 7-10
heard arguments from both parties, the Court indicated that
it was inclined to deny the Britt Motion and admit the
proffered evidence concerning Britt's actions and
statements. See Tr. at 51:23-52:1 (Court). The Court
then directed the parties to address the Lopez Motion.
See Tr. at 85:10-11 (Court).
opened by arguing that Walton will portray Lopez as having
discriminatory animus towards her, and that Walton will
attempt to illustrate that Lopez convinced Powell and Olah --
the RIF decision makers -- to select Walton's position
for termination in the RIF. See Tr. at 86:17-23
(Hatcher). Powell contended that the Court's MSJ MO
concluded that there is no evidence showing that “Lopez
. . . was a decision maker or unduly influenced the decision
maker.” Tr. at 87:14-17 (Hatcher). The Court
interjected, clarifying that the Court's conclusion was
made in the context of Walton's Title VII claims and that
it “didn't say anything about the [F]irst
[A]mendment claims.” Tr. at 87:18-20 (Court). Powell
conceded this point, but argued that, irrespective of the
context, the Court said “there is no evidence showing
Ms. Lopez was a decision maker or was involved.” Tr. at
88:6-11 (Hatcher). Indeed, Powell argues, Walton is simply
relying on Lopez' proximity to Powell to assert --
without evidence -- that Lopez “must have influenced
Mr. Powell.” Tr. at 88:17-24 (Hatcher). In Powell's
estimation, there will not be “any direct evidence
other than asking the jury to purely speculate that Ms. Lopez
had anything to do with . . . eliminating Peggy Walton's
position.” Tr. at 89:9-13 (Hatcher). Thus, Powell
argued, the Court should exclude evidence of Lopez'
involvement in the reclassification. See Tr. at
Powell's inclusion of Lopez on his witness list, Powell
noted that he intends to call Lopez to testify to actions by
the State Land Office's human resources department to
work with the State Personnel Office to approve Walton's
termination after the State Land Office designated her
position for the RIF. See Tr. at 89:14-22 (Hatcher).
Lopez will also testify to Walton's rights as a RIF-ed
employee, Powell noted. See Tr. at 89:23-24
(Hatcher). Powell insisted that he does not intend to proffer
testimony by Lopez for any additional purposes. See
Tr. at 89:23-24 (Hatcher). Powell thus asked the Court to
exclude evidence of Lopez' involvement in Walton's
reclassification from an Economist A position to a General
Manager I position as well as evidence concerning Lopez'
involvement in the Barker investigative report. See
Tr. at 90:5-8 (Hatcher).
response, Walton clarified that she does not seek to have
Lopez testify that she was a decision maker or that she
influenced the RIF selection process. See Tr. at
90:14-19 (Hardwick). Rather, Walton asserted, Lopez will
testify to her involvement in the protracted, year-long
process to reclassify Walton's position. See Tr.
at 91:8-19 (Hardwick). Walton averred that she also intends
to personally testify that she confronted Lopez about the
delay, and that she finally filed the paperwork herself.
See Tr. at 91:8-92:2 (Hardwick). Walton stated that
she will testify that she alerted Powell in advance that the
Barker report would be misleading in its conclusion that she
was unqualified for the Economist A position, because Lopez
should have reclassified that position to General Manager I
-- a position for which she was qualified -- long before the
report aired. See Tr. at 94:17-25 (Hardwick). Walton
will also testify, she noted, that she informed Powell that
she believed Lopez provided her confidential personnel
information to Barker, and that Powell took no investigative
action into the matter. See Tr. at 94:25-95:5
(Hardwick). The point of all this, Walton stated, is not to
illustrate Lopez' personal animosity or discriminatory
intent towards Walton; rather, Walton noted, this testimony
is “part of the facts that tell the story in this
case.” Tr. at 95:8-15 (Hardwick).
interjected, questioning the relevance of this proffered
testimony. See Tr. at 97:5-6 (Hatcher). The Court
responded that the testimony is relevant, because the Barker
story will cast a negative light on Walton given that
Walton's position was reclassified right before
Powell's election in September 2010. See Tr. at
97:7-11 (Court). There is a significant difference, the Court
noted, between the narrative that Walton's position was
reclassified on the eve of the election -- suggesting
political motive by Lyons -- and the narrative that the
reclassification process started in September 2009.
See Tr. at 97:9-13 (Court). Walton is entitled to
tell the latter narrative, the Court asserted, to rebut the
negative inference suggested by the Barker report.
See Tr. at 97:13-15 (Court). Powell nevertheless
pressed his relevance objection, contending that the point of
the Barker report was whether Walton was qualified for her
classified positions, not whether the reclassification was
tied to the election. See Tr. at 98:15-23 (Court).
also objected to testimony regarding Walton's telephone
conversation with Relkin and Powell about the forthcoming
Barker report. See Tr. at 99:6-100:3 (Hatcher).
Powell contended that such testimony is improper, because it
suggests that Powell had a duty yet failed to investigate
Walton's allegations, when in reality Walton had not yet
taken office and was not even acquainted with Walton at the
time. See Tr. at 99:10-100:3 (Hatcher). The Court
disagreed, explaining that such testimony illustrates that
Powell was on notice when he entered office in January 2011
that a human resources officer was potentially leaking
confidential personnel information to the press and that
Powell took no responsive action. See Tr. at
100:4-10 (Court). The proper inference from such testimony,
the Court reasoned, is that Powell did not initiate an
investigation because he knew that he was going to target
Walton for the RIF anyway. See Tr. at 100:12-14
the Court denied the Lopez Motion and stated that Walton is
entitled to testify to the narrative of how she moved into
the General Manager I position prior to Powell's
assumption of office. See Tr. at 101:6-18 (Court).
The Court further stated that Walton may also present
testimony regarding her conversation with Relkin and Powell
as circumstantial evidence of Powell's animus towards
her, because evidence that Powell did not investigate
Walton's allegations in that conversation tends to
suggest that Powell had already predetermined to eliminate
Walton's position in the RIF. See Tr. at
101:18-102:7 (Court). In short, the Court concluded that
evidence concerning Lopez is admissible to the extent it
relates to Walton's conversation with Relkin and Powell
and to the year-long reclassification delay. See Tr.
at 102:7-11 (Court).
REGARDING THE RELEVANCY OF EVIDENCE
Federal Rules of Evidence “contemplate the admission of
relevant evidence, and the exclusion of irrelevant and
potentially prejudicial evidence.” Train v. City of
Albuquerque, 629 F.Supp.2d 1243, 1247 (D.N.M.
2009)(Browning, J.)(citing Fed.R.Evid. 401, 402, 403).
“Relevant evidence is evidence that has a tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” United
States v. Gutierrez-Castro, 2011 U.S. Dist. LEXIS 88440,
at *3 (D.N.M. 2011)(Browning, J.)(citing Fed.R.Evid.
401)(“Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in
determining the action.”). “The standard for
relevancy is particularly loose under rule 401, because
‘[a]ny more stringent requirement is unworkable and
unrealistic.'” United States v.
Ganadonegro, 854 F.Supp.2d 1088, 1127 (D.N.M.
2012)(Browning, J.)(quoting Fed.R.Evid. 401 advisory
committee's note). Irrelevant evidence, or that evidence
which does not make a fact of consequence more or less
probable, however, is inadmissible. See Fed.R.Evid.
402 (“Irrelevant evidence is not admissible.”).
REGARDING RULE 403
403 of the Federal Rules of Evidence provides: “The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. Under rule 403,
the trial court must weigh the proffered evidence's
probative value against its potential for unfair prejudice.
See United States v. Record, 873 F.2d 1363, 1375
(10th Cir. 1989). “[I]t is only unfair prejudice,
substantially outweighing probative value, which permits
exclusion of relevant matter [under rule 403].”
United States v. Pettigrew, 468 F.3d 626, 638 (10th
Cir. 2006)(quoting United States v. Sides, 944 F.2d
1554, 1563 (10th Cir. 1991)). The Tenth Circuit has reminded
district courts that they should be “mindful”
that “exclusion of evidence under Rule 403 that is
otherwise admissible under the other rules is an
extraordinary remedy and should be used sparingly.”
United States v. Smalls, 605 F.3d 765, 787 (10th
decision to admit or exclude evidence pursuant to rule 403 is
within the trial court's discretion, see United
States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and
the trial court's discretion to balance possible unfair
prejudice against probative value is broad, see United
States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983);
United States v. Masters, 622 F.2d 83, 87-88 (4th
Cir. 1980). The Supreme Court of the United States has noted:
deference to a district court's familiarity with the
details of the case and its greater experience in evidentiary
matters, courts of appeals afford broad discretion to a
district court's evidentiary rulings . . . . This is
particularly true with respect to Rule 403 since it requires
an “on-the-spot balancing of probative value and
prejudice, potentially to exclude as unduly prejudicial some
evidence that already has been found to be factually
relevant.” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008)(quoting 1 Steven
Alan Childress & Martha S. Davis, Fed. Standards of
Review § 4.02, at 4-16 (3d ed. 1999)). See
United States v. Abel, 469 U.S. 45, 54
(1984)(“Assessing the probative value of [proffered
evidence], and weighing any factors counseling against
admissibility is a matter first for the district court's
sound judgment under Rules 401 and 403 . . . .”).
may be unfairly prejudicial if it would likely provoke an
emotional response from the jury or would otherwise tend to
adversely affect the jury's attitude toward a particular
matter. See United States v. Rodriguez, 192 F.3d
946, 951 (10th Cir. 1999). Evidence is not unfairly
prejudicial merely because it damages a party's case.
See United States v. Caraway, 534 F.3d 1290, 1301
(10th Cir. 2008); United States v. Curtis, 344 F.3d
1057, 1067 (10th Cir. 2003); United States v.
Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991). Rather,
“[t]o be unfairly prejudicial, the evidence must have
‘an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional
one.'” United States v. Caraway, 534 F.3d
at 1301 (quoting Fed.R.Evid. 403 advisory committee's
reasons stated on the record at the hearing, the Court will
deny all three of Powell's motions in limine. First, the
Court will deny the Bearden Motion, and allow evidence and
argument concerning alleged acts or statements of
discrimination toward Walton on bases other than the First
Amendment's protection of political association rights.
See Tr. at 43:13-21 (Court). As the Court explained
at the hearing, the evidence is relevant under rule 401 to
Walton's First Amendment claim and there is little risk
of unfair prejudice under rule 403, because Walton will
present a “sanitized” narrative that will not
address with particularity any acts or statements allegedly
made with non-political discriminatory animus toward her. Tr.
at 43:13-21 (Court). Second, the Court will deny the Lopez
Motion, and allow evidence and argument about issues
regarding Lopez to the extent such evidence relates to (i)
Walton's conversations with Relkin and Powell about
Lopez; and (ii) the protracted year-long reclassification of
Walton's position. See Tr. at 101:6-18 (Court).
The Court explained at the hearing that such evidence is
relevant, because it illustrates that Powell was on notice
that a human resources officer was potentially leaking
confidential personnel information to the press and that
Powell took no responsive action. See Tr. at
100:4-10 (Court). The Court noted that such evidence implies
animus toward Walton, because Powell's failure to
investigate Walton's allegations regarding Lopez suggests
that Powell had already predetermined to eliminate
Walton's position in the RIF. See Tr. at
101:18-102:7 (Court). Finally, the Court will deny the Britt
Motion, and allow evidence and argument regarding Britt's
alleged discriminatory statements or actions toward Walton.
See Tr. at 51:23-52:1 (Court). As with the Lopez
Motion, the Court explained at the hearing that evidence of
Britt's failure to take action to investigate
Walton's complaints about Bearden's alleged
discriminatory behavior towards her implies that Powell had
predetermined to terminate her employment. See Tr.
at 51:23-52:1 (Court).
ORDERED that: (i) Defendant Ray Powell's Motion in Limine
Regarding Alleged Acts of Commissioner Powell, His Exempt
Assistant Commissioners and Del Bearden, Forming the Basis
for Claims of Discrimination on the Basis of Race, Gender,
National Origin or Any Other Protected Basis Aside From that
Under the First Amendment's Political Association Rights,
filed October 24, 2016 (Doc. 114), is denied; (ii)
Powell's Motion in Limine Regarding Issues Involving
Sandra Lopez, filed October 24, 2016 (Doc. 118), is denied;
and (iii) Powell's Motion in Limine to Bar Evidence of or
Argument About Any Statement or Actions of Donald Britt of an
Allegedly Discriminatory Nature, filed October 24, 2016 (Doc.
119), is denied.
In his discussion of procedure, the
Honorable Neil Gorsuch criticized the Court's apparent
misapplication of the McDonnell Douglas test --
developed in the context of retaliation claims asserted under
Title VII -- to Walton's First Amendment retaliation
claim. See 821 F.3d at 1210 (“When assessing
Ms. Walton's claim of unlawful retaliation under the
First Amendment, the district court used the McDonnell
Douglas heuristic to guide its analysis.”). The
Court is perplexed by this criticism. The Court did not
discuss, much less apply, the McDonnell Douglas test
anywhere in its analysis of Walton's § 1983 claim
for political retaliation. See QI MO at 100-114. It
is true that the Court referenced the Defendants'
reliance on McDonnell Douglas for their Title VII
and NMHRA retaliation claims in the context of the
Court's discussion of the MSJ in its procedural
background section. See QI MO at 54 (citing MSJ at
15). Indeed, the Court comprehensively reviewed in the
procedural background all legal theories that both the MSJ
and QI Motion raised. See QI MO at 52-83. Yet the
Court, as noted above, bifurcated its analysis of
the qualified immunity issue that the QI Motion raised and
its analysis of the remaining issues in the MSJ between two
memoranda opinions -- the QI MO, which the Tenth Circuit
reviewed, expressly limited its analysis to the issue of
qualified immunity. See QI MO at 1 n.1
(“Because the Defendants intend to file an
interlocutory appeal solely on the denial of qualified
immunity, the Court will address only that issue . . .
.”). Thus, although the Court mentioned the
McDonnell Douglas test when reviewing the MSJ's
Title VII and NMHRA arguments, it did not apply that test in
the QI MO's analysis, because the QI MO deals only with
the qualified immunity defense to Walton's § 1983
political retaliation claim. The exists regarding whether
Powell violated Walton's political association rights.
See Walton v. Powell, 821 F.3d at 1214. The Tenth
Circuit noted that, generally, a plaintiff alleging
retaliation by a government employer on the basis of
political association must show that “her conduct
involved a matter of ‘public concern.'”
Walton v. Powell, 821 F.3d at 1213 (quoting
Merrifield v. Bd. Of Cty. Comm'rs, 654 F.3d
1073, 1083 (10th Cir. 2011)). The Tenth Circuit noted that
the Court's QI MO did not acknowledge or apply the public
concern test, but concluded that Powell nonetheless
“fail[ed] to give  sufficient reason to think the
test unsatisfied here.” Walton v. Powell, 821
F.3d at 1213. See id. (stating that firing a public
employee for “failing to endorse or pledge allegiance
to a particular political ideology” generally raises a
triable claim for retaliation)(citing Gann v. Cline,
519 F.3d at 1093-94)(internal quotation marks omitted).
Similarly, the Tenth Circuit concluded that, based on the
facts set forth in the QI MO, a reasonable jury could find
that “Walton's political affiliation was a
substantial or motivating factor in her dismissal.”
Walton v. Powell, 821 F.3d at 1214. Finally, the
Tenth Circuit held that Powell was not entitled to qualified
immunity with respect to Walton's § 1983 claim,
because, as early as 2008, before the events of this case,
“firing a civil service employee for refusing to show
allegiance to a particular political cause was already a
‘clearly established' violation of the First
Amendment.” Walton v. Powell, 821 F.3d at 1214
(quoting Gann v. Cline, 519 F.3d at 1095-96). The
only unresolved issue in this case is Walton's §
1983 claim asserted against Powell for retaliation against
Walton for her political association with Lyons, an
association which the First Amendment protects. See
Complaint ¶¶ 41-5, at 8-9. Powell moves in limine
to exclude from trial Court recognizes, as Judge Gorsuch
insists, that the McDonnell Douglas test has
“no useful role to play in First Amendment retaliation
cases, ” Powell v. Walton, 821 F.3d at 1210,
and, for that reason, the Court did not apply it to
Walton's First Amendment claim.
The Court's citations to the
hearing's transcript refer to the court reporter's
original, unedited version. Any final transcript may contain
slightly different page and/or line numbers.