Walton v. New Mexico State Land Office

          Jack N. Hardwick Sommer, Udall, Sutin, Hardwick & Hyatt Santa Fe, New Mexico Attorney for the Plaintiff

          Scott P. Hatcher Emma D.B. Weber Hatcher Law Group, P.A. Santa Fe, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL BACKGROUND

         The 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.

         Walton 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.

         On June 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.

         Walton's 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.

         In 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.

         Lyons' 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 at 8-9.

         Walton's 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.

         Lyons 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.

         During 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.

         Walton 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.

         On 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.

         The 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.

         KRQE 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.

         Powell 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.

         Powell 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.

         At a 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.

         On 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.

         Walton 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.

         In 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.

         Moreover, Bearden's statements were made in Walton's presence but were not directed at Walton. See QI MO at 29.

         Walton 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.

         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 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.

         Bearden's 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 ...