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Sinfuego v. Curry County Board of County Commissioners

United States District Court, D. New Mexico

February 14, 2017

AMANDA SINFUEGO, Plaintiff,
v.
CURRY COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court upon Defendant Lance Pyle's Motion for Summary Judgment and Qualified Immunity (the “Motion for SJ”), (Doc. 69), filed November 28, 2016; Plaintiff Amanda Sinfuego's Response to “Defendant Lance Pyle's Motion for Summary Judgment and Qualified Immunity” [Doc. 69] (the “Response to the Motion for SJ”), (Doc. 77), filed December 18, 2016; and Defendant Lance Pyle's Reply in Support of his Motion for Summary Judgment and Qualified Immunity (the “Reply to the Motion for SJ”), (Doc. 82), filed January 5, 2017. Additionally before the Court is Plaintiff's Motion to Strike Summary Judgment Affidavit of Lance Pyle in part [Doc. 69] (the “Motion to Strike”), (Doc. 78), filed December 19, 2016; Defendant Lance Pyle's Response to Plaintiff's Motion to Strike (the “Response to the Motion to Strike”), (Doc. 81), filed January 5, 2017; and Plaintiff Amanda Sinfuego's Reply to “Defendant Lance Pyle's Response to Plaintiff's Motion to Strike” (the “Reply to the Motion to Strike”), (Doc. 84), filed January 10, 2017. The Court has considered the Motions, the Responses, the Replies, and relevant law. The Court will GRANT IN PART AND DENY IN PART Plaintiff's Motion to Strike and GRANT Defendant's Motion for SJ.

         I. Factual and Procedural History

         This case arises from the firing of Plaintiff by Defendant Curry County Board of County Commissioners (“Defendant Curry County Commissioners”). Plaintiff was hired to work at the Curry County Detention Center (“Detention Center”) in 2010. (Doc. 1 ¶ 11). In 2012, officers and employees at the Detention Center discussed forming a union. (Doc. 69 at 3, ¶ 1). On November 16, 2012, Plaintiff and other employees at the Detention Center prepared a letter “regarding the abhorrent and dangerous conditions for inmates[ ] and employees[ ] and the misuse of public funds.” (Doc. 77 at 9 ¶ C). At the time, Plaintiff held a temporary position as the executive secretary to the Detention Center Administrator.[1] (Docs. 69 at 3 ¶ 2, 77 at 3 ¶ 2(i)). Plaintiff and another staff member, Officer Rene Garcia, spoke to Defendant Lance Pyle (“Defendant Pyle”) on December 3, 2012 about issues with the Detention Center and the staff's discussions regarding forming a union and presented him with the letter that was composed on November 16, 2012. (Docs. 69 at 3 ¶ 3; 77 at 9 ¶ D). Defendant Pyle is and was at the time the Curry County Manager. (Doc. 1 ¶ 8). During the meeting, Defendant Pyle told Plaintiff that she was part of the managerial staff and could not be involved in union organization. (Doc. 69 at 3 ¶ 4). Defendant Pyle states that he never raised the issue of a union to Plaintiff again after this meeting. (Doc. 69 at 3 ¶ 5).[2]

         In emails exchanged between Defendant Pyle and several Detention Center employees on December 6, 2012, Defendant Pyle reiterated that Plaintiff could not be a part of collective bargaining based on her position as the executive secretary. (Doc. 77 at 10 ¶ F). That same day, Plaintiff sent a text message to Detention Center employees about forming a union. (Doc. 77 at 10 ¶ G). In the text message, Plaintiff stated that Defendant was trying to “scare everyone” and “separate us and keep us from forming a union.” (Doc. 77-5 at 7). Plaintiff was not disciplined by her supervisor, Detention Center Administrator Gerry Billy, for sending the text message. (Doc. 77 at 10 ¶ I). On December 10, 2012, Defendant Pyle accused Plaintiff of distributing “misleading and slanderous” material during work hours. (Docs. 77 at 10 ¶ H, 77-5 at 8).[3] Defendant Pyle was dissatisfied with Mr. Billy's handling of the text message situation. (Doc. 77 at 11 ¶ M). After these events, Mr. Billy was fired. Plaintiff claims that Mr. Billy was fired in retaliation for not disciplining Plaintiff, while Defendant maintains that Mr. Billy's contract was not renewed. (Docs. 77 at 10 ¶ J, 78 at 5 ¶ J).

         Following the text message and union organization efforts, Plaintiff claims that Defendant Pyle retaliated against her for her union activities by stripping her of her seniority, moving her to the night shift, taking her off the inmate extraction unit, taking away her job as property manager, removing her training officer status, and ostracizing her. (Doc. 77 at 11 ¶ O). Despite his alleged actions, Plaintiff continued to work to unionize the Detention Center employees through 2013. (Doc. 77 at 13 ¶ U).[4]

         Defendant Pyle disputes that he retaliated against Plaintiff. (Doc. 78 at 6 ¶ O). According to Defendant Pyle, two events led to Plaintiff's termination. First, on November 12, 2013 Plaintiff participated in a conversation that Defendant Pyle describes as “sexual in nature.” (Docs. 69 at 3 ¶ 6). From the exhibits, it appears that Plaintiff used an administrative restroom during her shift and when she left the restroom, she commented to several colleagues about how dirty it was and stated that there was a “pubic hair on the toilet.” (Doc. 77-18 at 88). This led one of the other officers to start an hour long conversation about his personal grooming habits and sex life. (Docs. 69-2 at 1-2, 69-3 at 1, 77-18 at 92). Plaintiff disputes that this conversation was “sexual in nature.” (77 at 5 ¶ 6(i)-(v)). On November 15, 2013, Plaintiff submitted a written statement detailing her concerns about the nature of the conversation. (Docs. 77 at 5 ¶ 6(iv), 77-19).

         Second, Plaintiff attended a sexual harassment seminar with her colleagues on November 13, 2013. (Doc. 69 at 4 ¶ 7). During the seminar, Plaintiff drew male genitalia on a picture of one of her colleagues at the seminar and sent the picture to several colleagues.[5] On December 3, 2013, Ms. Tori Sandoval, Curry County Detention Center Administrator, informed Plaintiff of her recommendation to terminate Plaintiff for violating Curry County's sexual harassment policy and notified Plaintiff of a pre-termination hearing that would be conducted by Defendant Pyle. (Doc. 69 at 4 ¶ 8).

         Defendant Pyle states that he did not know anything about the underlying investigation into the incident or Ms. Sandoval's decision until Ms. Sandoval copied Defendant Pyle on her December 3, 2013 letter to Plaintiff.[6] (Doc. 69 at 4 ¶ 12). Defendant Pyle conducted the pre-termination hearing on December 30, 2013 and upheld the termination recommendation on January 7, 2014. (Docs. 1 ¶ 28, 69 at 4 ¶ 9). Defendant Pyle argues that his only involvement in this matter was to conduct the predetermination hearing and accept Ms. Sandoval's recommendation to terminate Plaintiff. (Doc. 69 at 4 ¶ 15). Plaintiff argues that Defendant Pyle fired her for her union activities and the sexual harassment claim was simply pretext. (Doc. 77 at 7 ¶ 13(i)-(vi). After the pre-determination hearing, Plaintiff appealed the decision through a post-termination hearing. (Doc. 69 at 8 ¶ 18). The decision to terminate Plaintiff was upheld at two post-termination hearings.[7] (Docs. 69 at 8 ¶ 19, 69-2, 69-4).

         Thereafter, on July 1, 2015, Plaintiff filed her Civil Complaint for Violation of Civil Rights and the Whistleblower Protection Act (the “Complaint”), alleging claims against several defendants. (Doc. 1). As relevant here, Plaintiff claims that Defendant Pyle violated her First Amendment right of free speech, right to associate, and right to petition for redress of grievances. (Doc. 1 at 10-13). Specifically, Plaintiff contends that she spoke publicly about forming a union, associated with the union, and complained about the detention center facilities. She further states that Defendant Pyle tried to intimidate and prevent the Detention Center employees from forming a union and terminated Plaintiff's employment based on her union activities. (Doc. 1 ¶¶ 32-33, 39-40, 46-50). Plaintiff also alleged that Defendant Pyle violated her rights under the Whistleblower Protection Act (“WPA”). (Doc. 1 at 13-15). As to the WPA claim, after a recent change in New Mexico law, Plaintiff admits that she cannot sue Defendant Pyle in an individual capacity under the WPA. (Doc. 77 at 23) (citing Flores v. Herrera, 2016- NMSC-033, 384 P.3d 1070 (N.M. 2016)). Therefore, Plaintiff agrees to dismiss her WPA claims against Defendant Pyle. (Doc. 77 at 23).

         Currently before the Court is Defendant Pyle's Motion for SJ, which asks the Court to grant summary judgment on Plaintiff's claims against Defendant Pyle, or in the alternative, find that Defendant Pyle is eligible for qualified immunity. Additionally, Plaintiff asks the Court to strike certain paragraphs in Defendant Pyle's affidavit associated with the Motion for SJ.

         II. Standard of Review

         A. Summary Judgment

         The court shall grant summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of making a prima facie demonstration that there is no genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is material if it might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Id. If the moving party has demonstrated an absence of material fact, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).

         “[W]here the non-moving party will bear the burden of proof at trial on a dispositive issue, that party must go beyond the pleadings and designate specific facts so as to ‘make a showing sufficient to establish the existence of an element essential to that party's case' in order to survive summary judgment.” English v. Colo. Dep't of Corr., 248 F.3d 1002, 1007 (10th Cir. 2001) (internal citations and quotation marks omitted). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the nonmoving party on that issue. See Anderson, 477 U.S. at 249. The nonmovant must go beyond the allegations and denials of her pleadings and provide admissible evidence, which the Court views in the light most favorable to her. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995). The facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. See Adler, 144 F.3d at 671.

         B. Qualified Immunity

         “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is an entitlement not to stand trial or face the other burdens of litigation, and acts as immunity from suit rather than a mere defense to liability. Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004) (internal citations omitted).

         Where a defendant raises the defense of qualified immunity in a motion for summary judgment, the plaintiff must meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). First, a plaintiff must establish that the defendant's actions violated a constitutional or statutory right. Id. (internal citations and quotations omitted). A plaintiff must then demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct. Id. (internal citations and quotations omitted).

         “If a plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Id. (citing Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995)). Thus, a court may consider either prong of the qualified immunity analysis. See Pearson, 555 U.S. at 236. In other words, at the summary judgment stage, although a court “will review the evidence in the light most favorable to the nonmoving party, . . . the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise the defendants are entitled to qualified immunity.” Medina, 252 F.3d at 1128 (citing Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir. 2000)).

         C. Excluding Affidavit Testimony

         At the summary judgment stage, evidence does not need to be submitted “in a form that would be admissible at trial.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. at 324) (internal quotation marks omitted). Parties may submit affidavits “despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form.” Id. (citing Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005)). However, “the content and substance of the evidence must be admissible.” Id. (quoting Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995)) (internal quotation marks omitted). Federal Rule of Civil Procedure 56 states that affidavits “must . . . set out facts that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(4). Therefore, hearsay statements in affidavits that would not be admissible at trial must be disregarded by the Court. Id.

         III. Analysis

         Defendant Pyle argues that he is entitled to summary judgment, or in the alternative, qualified immunity. (See Doc. 69). Specifically, Defendant Pyle argues that he is entitled to summary judgment because he had no personal participation in Plaintiff's termination. (Doc. 69 at 3). Defendant Pyle further argues that he is entitled to qualified immunity based on a lack of clearly established law that would have put him on notice that he was violating Plaintiff's rights. (Doc. 69 at 3).

         Plaintiff responds that Defendant Pyle retaliated against her by terminating her employment on the basis of her union activities. (Doc. 77 at 2). Plaintiff contends that the termination proceedings were pre-textual. (Doc. 77 at 3). Finally, Plaintiff states that Defendant Pyle is not entitled to qualified immunity because there is a factual dispute as to the reason that Plaintiff was terminated. (Doc. 77 at 14-15).

         Plaintiff also filed a Motion to Strike, arguing that portions of Defendant Pyle's affidavit are inadmissible. (See Doc. 78). The Court will address the Motion to Strike first and then turn to the Motion for SJ.

         A. Plaintiff's Motion to Strike

         Plaintiff asks the Court to strike ten paragraphs from Defendant Pyle's Affidavit to his Motion for SJ, arguing that they are inadmissible for various reasons. (Doc. 78 at 1-2). The Court will address each of Plaintiff's Objections.

         i. Inadmissible Hearsay

         Plaintiff argues that four paragraphs from Defendant Pyle's Affidavit contain inadmissible hearsay. The paragraphs state:

Paragraph 11: I was informed that Lindsey Schwebke, who was Personnel Coordinator at that time, had learned that Ms. Sinfuego had taken pictures of instructors who were giving a “Toxic Talk” seminar on November 13, 2013; the subject of the class included sexual harassment.
Paragraph 12: Ms. Sinfuego had drawn pictures of penises on the faces of the instructor and/or her coworkers in a sexually suggestive way.
Paragraph 13: Ms. Sinfuego had sent those pictures to three other employees who were attendees in the class.
Paragraph 14: Based on the investigation, and Ms. Sinfuego's admissions, Ms. Schwebke and Ms. Sandoval proposed to terminate Ms. Sinfuego, after ...

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