United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural History
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. (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).
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). 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).
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).
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).
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. 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
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. (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. (Docs. 69 at 8 ¶ 19, 69-2, 69-4).
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).
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.
Standard of Review
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).
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.
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).
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).
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.
Excluding Affidavit Testimony
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.
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).
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
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.
Plaintiff's Motion to Strike
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.
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 ...