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Welch v. City of Albuquerque

United States District Court, D. New Mexico

May 10, 2018

TERYSA M. WELCH, Plaintiff,
v.
CITY OF ALBUQUERQUE and RAYMOND SCHULTZ, Defendants.

          PRETRIAL ORDER

         This matter is before the Court pursuant to Fed.R.Civ.P. 16. The parties conferred and submit the following Pretrial Order.

         I. APPEARANCES

         Attorneys who will try this action:

         For Ms. Welch Ryan J. Villa Richelle Anderson

         For Defendants Patricia G. Williams Lorna M. Wiggins

         II. JURISDICTION AND RELIEF SOUGHT

         A. Subject Matter Jurisdiction.

         1. Was this action removed or transferred from another forum? X Yes ___No If yes, was the action removed or transferred?

         X Removed ___ Transferred ___ Original forum

         2. Is subject matter jurisdiction of this Court contested?

         X Uncontested ____ Contested ___ Party contesting

         3. Asserted basis for jurisdiction.

         X 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)

         B. Personal Jurisdiction and Venue.

         1. Is personal jurisdiction contested?

         X Uncontested ___ Contested Identify the party contesting personal jurisdiction and basis for objection:

         2. Is venue contested?

         X Uncontested ___ Contested ___ Party Contesting Identify the party contesting personal jurisdiction and basis for objection:

         C. Are the proper parties before the Court?

         X Uncontested ___ Contested

         If contested, identify each missing party or improper party and the basis for contention:

         D. Identify the affirmative relief sought in this action.

         1. Ms. Welch seeks: compensatory damages as well as taxable costs and attorney's fees.

         2. 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.

         III. BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES

         A. Ms. Welch's claims:

         This is 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.

         Ms. 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.

         B. Defendant's defenses:

         (A defendant claiming entitlement to qualified immunity must set forth with specificity the basis of the defense.)

         All 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.

         The 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 barred.

         C. Claims or defenses of other party:

         N/A

         IV. FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES A.Stipulated Factual Contentions.

         The parties agree to the following facts listed separately below:

         1. Ms. Welch's claims arise from her employment as a detective for APD.

         2. Ms. Welch is female.

         3. Ms. Welch was assigned to the APD Special Investigation Division (“SID”) Repeat Offender Project (“ROP”) from 2004 until 2009.

         4. During that time, Ms. Welch was the only female detective assigned to ROP.

         5. Ms. Welch filed a complaint with the EEOC alleging sexual harassment and sex discrimination on August 24, 2009.

         6. On December 10, 2009, Sue Neal of APD Human Resources, conducted a mandatory EEOC training for SID employees only.

         7. Ms. Welch attended this training.

         8. On December 16, 2009, Ms. Welch began a temporary duty assignment with the Burglary Unit as a detective.

         9. For eighteen months, Ms. Welch was temporarily assigned to the Burglary Unit.

         10. On 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”).

         11. Lt. Roseman wrote a memo about Ms. Welch's transporting alcohol in her city issued vehicle to Doug West, commander of SID.

         12. Commander West ordered that an internal affairs investigation be initiated on the violation of the SOP.

         13. At the time, transporting alcohol in a city vehicle, standing alone, was a level 6 sanction.

         14. A level 6 sanction, standing alone, calls for a written reprimand.

         15. Based on her discipline of a forty-hour suspension Ms. Welch's name was reported to the New Mexico Law Enforcement Academy by APD.

         16. The New Mexico Law Enforcement Academy took no action against Ms. Welch.

         17. Ms. Welch was promoted to the rank of Sergeant on March 7, 2013.

         18. Ms. Welch was promoted to the rank of Lieutenant in 2017.

         B.Contested Material Facts.

         1. Ms. Welch's Contentions:

         Ms. 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.

         (A) 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.

         (B) 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.

         (C) 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.

         (D). 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.

         2. Defendant's Contentions:

         Defendants deny Ms. Welch's contentions that the City subjected her to sexual harassment, sex discrimination and retaliation in ...


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