United States District Court, D. New Mexico
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 ...