United States District Court, D. New Mexico
TERYSA M. WELCH, Plaintiff,
CITY OF ALBUQUERQUE and RAYMOND SCHULTZ, Defendants.
matter is before the Court pursuant to Fed.R.Civ.P. 16. The
parties conferred and submit the following Pretrial Order.
who will try this action:
Welch Ryan J. Villa Richelle Anderson
Defendants Patricia G. Williams Lorna M. Wiggins
JURISDICTION AND RELIEF SOUGHT
Subject Matter Jurisdiction.
Was this action removed or transferred from another
forum? X Yes ___No
If yes, was the action removed or transferred?
Removed ___ Transferred ___ Original forum
Is subject matter jurisdiction of this Court
Uncontested ____ Contested ___ Party contesting
Asserted basis for jurisdiction.
Federal Question ___ Diversity ___ Other Statutory
Provision(s) Invoked: Title VII of the 1964 Civil Rights Act,
42 U.S.C. §§ 2000e to 2000e-17 (2001)
Personal Jurisdiction and Venue.
Is personal jurisdiction contested?
Uncontested ___ Contested Identify the party contesting
personal jurisdiction and basis for objection:
Is venue contested?
Uncontested ___ Contested ___ Party Contesting Identify the
party contesting personal jurisdiction and basis for
Are the proper parties before the Court?
Uncontested ___ Contested
contested, identify each missing party or improper party and
the basis for contention:
Identify the affirmative relief sought in this
Welch seeks: compensatory damages as well as taxable costs
and attorney's fees.
Defendants seek: A judgment in their favor resulting in a
dismissal of all of Ms. Welch's claims, with prejudice,
plus recovery of taxable costs against Ms. Welch.
BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES
Ms. Welch's claims:
a civil lawsuit brought by Ms. Welch against the Defendants
City of Albuquerque and Raymond Schultz. Ms. Welch claims the
City of Albuquerque violated her civil rights during her
employment with the City as a police officer from 2004
through 2012. Ms. Welch claims the City violated Title VII of
the Civil Rights Act of 1964 and the New Mexico Human Rights
Act by discriminating against her on the basis of her sex.
She has claims against the City for discrimination, sexual
harassment for being subjected to a hostile work environment,
and retaliating against her for complaining to her
supervisors about her discrimination and hostile work
environment and exercising her right to file a complaint with
the Equal Employment Opportunity Commission (EEOC).
Accordingly, Ms. Welch claims she is entitled to damages for
these claims for lost wages, loss of opportunity for job
advancement, damage to reputation, loss of enjoyment of life,
and emotional distress.
Welch also claims the City and Mr. Schultz violated the New
Mexico Human Rights Act by doing one or more of the
following: disciplining Ms. Welch; failing to promote Ms.
Welch; discriminating in matters of compensation terms,
conditions, or privileges of employment against Ms. Welch;
and that her sex was a motivating factor in the City's or
Mr. Schultz's actions. Ms. Welch also has a claim for
threatening, retaliating, or discriminating against her for
complaining to her supervisors about the harassment and
discrimination and filing a complaint with the EEOC.
defendant claiming entitlement to qualified immunity must set
forth with specificity the basis of the defense.)
activities of Defendants were lawful, in good faith and in
the proper exercise of governmental functions and Mr. Schultz
is entitled to qualified immunity for the reasons stated in
his motion for summary judgment on the issue and expect the
fact questions that precluded summary judgment will be
resolved in his favor at trial. Ms. Welch's Complaint, in
whole or in part, fails to state a claim upon which relief
may be granted. Defendants' actions were made for
legitimate, non-discriminatory and non- retaliatory reasons.
Ms. Welch's claims are barred in whole or in part by the
applicable statute of limitations. Ms. Welch's claims are
barred in whole or in part on the Faragher doctrine
because the City exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and that
Ms. Welch unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. Defendants have not
retaliated against Ms. Welch. Defendants have not violated
any statute, state or federal.
federal claims are barred to the extent that they were not
alleged or encompassed within the charges of discrimination
filed by Ms. Welch. Ms. Welch failed to take advantage of the
preventative and corrective opportunities provided by the
City. The City exercised reasonable care to prevent and
promptly correct any discriminatory conduct, which is
expressly denied, in the workplace. Ms. Welch's claims
are barred, in whole or part, by the doctrines of waiver,
estoppel, consent, laches and immunity. The Defendants'
alleged actions or purported omissions in this matter do not
rise to the level of any statutory or other deprivation of
Ms. Welch's rights. Ms. Welch's claims for emotional
distress and loss of enjoyment of life are barred, in whole
or part. Ms. Welch has failed to mitigate any damages. The
parties agree Ms. Welch's claims for punitive damages are
Claims or defenses of other party:
FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES
A.Stipulated Factual Contentions.
parties agree to the following facts listed separately below:
Welch's claims arise from her employment as a detective
Welch is female.
Welch was assigned to the APD Special Investigation Division
(“SID”) Repeat Offender Project
(“ROP”) from 2004 until 2009.
During that time, Ms. Welch was the only female detective
assigned to ROP.
Welch filed a complaint with the EEOC alleging sexual
harassment and sex discrimination on August 24, 2009.
December 10, 2009, Sue Neal of APD Human Resources, conducted
a mandatory EEOC training for SID employees only.
Welch attended this training.
December 16, 2009, Ms. Welch began a temporary duty
assignment with the Burglary Unit as a detective.
eighteen months, Ms. Welch was temporarily assigned to the
October 12, 2010, Ms. Welch was reported by Kevin Gagne,
another SID detective, to Lieutenant William Roseman because
Detective Gagne observed Ms. Welch transporting alcohol in
her city issued vehicle, which is a violation of APD standard
operating procedures (“SOP”).
Roseman wrote a memo about Ms. Welch's transporting
alcohol in her city issued vehicle to Doug West, commander of
Commander West ordered that an internal affairs investigation
be initiated on the violation of the SOP.
the time, transporting alcohol in a city vehicle, standing
alone, was a level 6 sanction.
level 6 sanction, standing alone, calls for a written
Based on her discipline of a forty-hour suspension Ms.
Welch's name was reported to the New Mexico Law
Enforcement Academy by APD.
New Mexico Law Enforcement Academy took no action against Ms.
Welch was promoted to the rank of Sergeant on March 7, 2013.
Welch was promoted to the rank of Lieutenant in 2017.
Welch contends that the City subjected her to sexual
harassment, sex discrimination and retaliation in violation
of Title VII and the New Mexico Human Rights Act.
Facts relevant to Sexual Harassment: While she was working as
a detective in the ROP unit, she was sexually harassed by her
co-workers and supervisors. Ms. Welch claims that the
harassment was based on her sex and that the harassment was
hostile and abusive. She contends that the harassment was
sufficiently severe or pervasive and altered the conditions
of her employment and created an abusive working environment.
Specifically, she experienced hostility from the time she
came to ROP because she was a woman and her supervisor Robert
Smith knew about this. Mr. Smith himself made sexually
inappropriate comments to her such as writing on her personal
fitness assessment that he wanted to have children with her
and left her pictures of himself in her cubicle with a note.
He also made inappropriate comments about his genitals in
front of her and with other male detectives in her presence,
such as Detective Potter. He also inappropriately hugged her
and suggested he take her home when he informed Ms. Welch
that her boyfriend David Maes, a fellow officer, had been
arrested for raping a suspect who was in custody. He also
treated her with extreme hostility when she attempted to
address Sgt. Hubbard's punctuality memo against her.
Facts Relevant to Sex Discrimination: Ms. Welch contends that
the City discriminated against her based on her sex when the
City and her supervisors disciplined her. Sgt. Hubbard's
punctuality memorandum was discipline and he issued it to Ms.
Welch, and not Detective Hill who had also missed a training,
in part because of her sex. The City also initiated the
internal affairs investigation, an action that normally only
requires a written reprimand, relating to the transporting of
alcohol in part because of Ms. Welch's sex. The City also
suspended her and reported her name to the Law Enforcement
Academy for the same reasons.
Facts Relevant to Retaliation: Ms. Welch further contends
that the City retaliated against her by disciplining her and
forcing her to transfer out of ROP after she made a complaint
about the sexual harassment and sex discrimination with her
supervisors and the EEOC. Specifically, Robert Smith berated
her and questioned her performance when she complained about
the punctuality memo. Joseph Hudson also warned her not to
make an EEOC complaint about the memo, and when she did, he
issued the November 2009 memo to her accusing her of not
doing her job properly. The City also conducted a
“sham” EEOC training for SID where Ms. Welch and
another SID detective, Maureen O'Brien, who had also
filed a complaint of sexual discrimination and harassment,
were singled out. While still at ROP, Sgt. Hubbard assigned
Ms. Welch to arrest repeat felons by herself, when normally
this was done with a fellow detective. Further, while still
at ROP someone placed a transfer form in Ms. Welch's box
and Robert Smith attempted to physically assault her in the
hallway, causing Ms. Welch to fear for her safety. Because
APD refused to address the conditions Ms. Welch experienced
at ROP, she had to temporarily transfer to burglary. During
her 18-month period in burglary, none of the issues at ROP
were addressed and she was unable to go back. This caused her
to lose overtime opportunities. When she realized she could
not go back to ROP safely, she attempted to promote to
sergeant which was delayed by the actions of the City and
Defendant Schultz in retaliation for earlier complaints.
Facts relevant to the HRA claims: Ms. Welch also contends
that the City and Defendant Raymond Schultz did one or more
of the following: disciplined Ms. Welch; transferred her from
ROP; failed to promote her; discriminated in matters of
compensation terms, conditions, or privileges of employment
against Ms. Welch; or threatened, retaliated, or
discriminated against Ms. Welch for opposing an unlawful
discriminatory practice, filing a complaint, and that her sex
was a motivating factor for Defendants' actions.
deny Ms. Welch's contentions that the City subjected her
to sexual harassment, sex discrimination and retaliation in