United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
an employment discrimination case that invokes the
Court's diversity jurisdiction under 28 U.S.C. §
1332. See Doc. 50. Plaintiff Jollene Provencio
alleges a single New Mexico state law claim for retaliation
by Intel in violation of the New Mexico Human Rights Act,
N.M. Stat. Ann. §§ 28-1-1 to -15 (West 2008)
(“NMHRA”), for participating as a witness in two
internal Intel investigations in which she reported
witnessing discrimination by Intel's management. She
claims that thereafter Intel placed her in a hostile work
environment resulting in Ms. Provencio being shunned and
isolated by her colleagues, receiving reports that she was
difficult to work with, deprived of her leadership role that
comprised approximately 20-30% of her job duties, and given a
negative job performance evaluation that set her on a track
towards being fired.
pending is Intel's Motion for Summary Judgment. Doc. 30.
After careful consideration of the motion, briefs, and
relevant law, the Court concludes that the motion should be
Provencio worked at Intel as a Systems Analyst for 19 years
without any prior discipline. Doc. 30, ¶ 1; Doc. 30-1,
p. 1, 31:4-6. She worked as an “individual contributor,
” but never worked as a manager, supervisor,
or staff member at Intel. Doc. 30, ¶ 1.
York Open Door Investigation
March 2015, about one year before Ms. Provencio resigned, she
was a witness in Intel's internal Open Door Investigation
stemming from her colleague Dwight York's charge that
Intel practiced age discrimination (“York
ODI”). Doc. 30, ¶ 3. During an interview
with an Intel investigator, Camella McIntosh, Ms. Provencio
did not specifically tell the investigator that she witnessed
age discrimination. Doc. 30-1, p. 4, 72:2-6. But she did tell
the investigator that some of her supervisors created a
hostile work environment. See Id. (Q: “But you
did not alert Camella specifically to any discrimination
correct?” A: “Just a hostile environment.
Correct.”) She described one supervisor, Janice Lee, as
a “bully” who seemed to have “issues with
other women.” Doc. 33-3, pp. 1-2. She told the
investigator that she should talk to another colleague,
Jeanette Lee,  about Jeanette Lee's previous internal
discrimination claim. Id. at p. 2. Ms. Provencio
said of another supervisor, Randie Dorrance, that he
“back[ed] his people, ” and “none of his
managers will ever get written up.” Id.
three to four months after the York ODI, in June and July
2015, Ms. Provencio's immediate supervisor, Keith
Baumgardner, told her that Janice Lee, Dorrance
(Baumgardner's supervisor), and Jeff Kiehne, another
manager, complained that she was unapproachable and hard to
work with. Doc. 33-2, ¶ 5; Doc. 30-1, p. 8, 112:11.
Dorrance apparently pressured Baumgardner to
“coach” Ms. Provencio about these qualities. Doc.
33-8, p. 3, 17:4-23. Coaching is a form of discipline, the
first step on the ladder of Intel's progressive
discipline policy. Id. at p. 3, 18:8-10; Doc. 33-6,
p. 1. Intel's “Open Door Guidelines”
permitted co-workers to complain about her to her direct
supervisor, Baumgardner. Doc. 30-1, p. 1, 34:12-25.
and Ms. Provencio had a more amicable relationship, and
Baumgardner did not want to coach Ms. Provencio because he
did not believe the accusations about her were true. Doc.
33-8, p. 3, 17:20 - 18:7. As her supervisor, though, he
relayed these comments to her. Id. at 17:21-23. But,
according to Ms. Provencio, he did not tell her that he was
officially coaching her. Doc. 33-6, p.1. And in any case, he
told her that the complaints did not make sense, and to not
worry about them. Doc. 33-2, ¶ 6. In response, Ms.
Provencio told Baumgardner that she believed Intel managers
were retaliating against her for participating in the York
ODI, since human resources had not before received complaints
about her being unapproachable or difficult to work with.
Id. at ¶ 9; Doc. 33-5, p. 5, 88:15-25.
Reduction of Ms. Provencio's Job Duties
the same time, in May or June of 2015 - about two to three
months after Ms. Provencio participated in the York ODI -
Dorrance took away Ms. Provencio's job duties as
“lead” for improving the Engineering Project
Tracker (“EPT”), a computer program. Doc. 33-2,
¶ 7. Dorrance instead placed Janice Lee into that
position, despite Ms. Provencio's superior qualifications
and the fact that EPT improvement team leader was in her job
description. Id. at ¶¶ 7-8; Doc. 33-1, p.
7, 81:14. Baumgardner even told Provencio, “[t]hey
[Dorrance and Janice Lee] want you removed from the
team.” Doc. 33-1, p. 6, 77:16. Until Janice Lee took
over, Ms. Provencio had always been the EPT improvement team
since the program was developed. Doc. 33-2, ¶ 8; Doc.
33-1, p. 7. About 20-30% of Ms. Provencio's job duties
were reduced following her removal as leader. Doc. 33-8, p. 4,
35:10-15. Dorrance relegated Ms. Provencio to a lesser
position of “facilitator.” Doc. 33-1, p. 5,
76:8-10. After the new EPT improvement team was formed,
Baumgardner advised Ms. Provencio - on Janice Lee's
request - to not attend the initial kick-off meeting because
it was believed that she would be argumentative. Doc. 33-8,
p. 4, 35:5-26-36:1-2. However, Intel managers did add Ms.
Provencio to later meetings. Doc. 33-1, p. 6, 78:14. She
attended about four or five more meetings after the new team
was formed, merely serving as a minute-taker and providing
input only when asked. Id. at p. 5, 76:16-17; p. 6,
starting ignoring Ms. Provencio's work e-mails, impairing
her ability to carry out her job. Id. at p. 16,
177:7-18. After one engineer repeatedly ignored Ms.
Provencio's emails, Ms. Provencio appealed to Janice Lee
for help. Id. Instead of responding, Janice Lee
likewise ignored Ms. Provencio's e-mails. Id.
This happened two or three times. Id. Peers began
isolating Ms. Provencio. Id. at p. 14, 153:6. Her
health became was affected, and she was nervous and scared.
Id. at p. 13, 152:10-23.
in June 2015, three months after the York ODI, Intel reneged
on a promise to allow Ms. Provencio to use a spare work room.
Id. at pp. 8-9, 100:8-25-101:1-25. Kiehne later
assigned the room to himself. Id. at p. 9,
104:21-25. When Ms. Provencio protested in a June 10, 2015
email to Kiehne, calling his actions “disrespectful and
underhanded, ” he closed his reply e-mail by saying
“Just FYI I am copying my manager as I do not want him
to hear from someone else that these statements were
made.” Doc. 33-7, pp. 1-2.
Ms. Provencio's First Internal Complaint
mid-June 2015, Ms. Provencio made an internal complaint with
Intel's human resources department alleging retaliation,
the first such complaint she had ever made in her 19 year
career there. Doc. 30-1, p. 11, 188:12-25. David Sanchez, a
human resources employee, investigated her complaint. Doc.
36-1. After completing his investigation, Sanchez said that
he could not substantiate Ms. Provencio's claims.
Id. at p. 2. He wrote in a post-investigation report
that he found no support that Kiehne or Janice Lee retaliated
against Ms. Provencio for acting as a witness in internal
investigations. Id. He also stated that he found no
evidence suggesting that individuals who worked in Ms.
Provencio's organization knew she participated as a
witness in the York ODI. Id.
did find, however, that Kiehne and Dorrance should be given
documented “coachings” - i.e.
disciplined - for certain misbehaviors. Sanchez recommended
that Kiehne receive a coaching for telling a staff member,
“if people want to learn to keep their jobs around here
they need to shut their mouth.” Id. at p. 3.
As for Dorrance, Sanchez found that he instilled fear in his
staff, modeled inappropriate behavior, and was a poor
manager. Id. at pp. 2-3. When Sanchez met Dorrance
in August 2015 to discuss the post-investigation findings,
Dorrance - enraged - pressured Sanchez to reveal who
complained about him. Doc. 33-9, p. 1. In a later email to
his superiors, Sanchez wrote that he was “concerned
about Randie Dorrance's behavior towards Jollene since
Randie was upset about the June 2015 investigation and Randie
wanted to know who I talked with during my
investigation.” Id. Despite Intel's
ability to transfer or move Ms. Provencio to another
department, Intel never did so. Doc. 33-5, p. 4, 67:6-9. By
fall of 2015, Baumgardner told Ms. Provencio that she should
take a new job outside of her department. Doc. 33-2, ¶
10. Frustrated by months of hostility at work and sensing
that it would not let-up, Ms. Provencio spent November and
December 2015 looking for another job. Doc. 33-1, p. 13,
December 2015 - nine months after Ms. Provencio participated
in the York ODI - Dorrance again pressured Baumgardner to
coach Ms. Provencio about her being unapproachable and
difficult to work with, even though Baumgardner thought it
was unwarranted. Doc. 33-9, p. 7. In a December meeting,
Dorrance, Baumgardner, and Kiehne, met to discuss what the
“issues” were concerning Ms. Provencio.
Id. at p. 2. Dorrance asked Baumgardner if Ms.
Provencio was “the one who went to HR.”
Id. Baumgardner confirmed this suspicion, telling
Dorrance that she “was involved in 3 to 4 HR things
this past year.” Id. This disclosure drew a
sharp rebuke from human resources, which later coached
Baumgardner, telling him “that he should not be
divulging who has talked to HR or discussed concerns with
Down-graded Job Performance Evaluation
Provencio's annual job performance review for 2015, Intel
down-graded her job performance rating. Before she
participated in the York ODI and made her own internal
complaints, Intel rated her performance as “Exceeds
Expectations, ” entitling her to a $3, 623 bonus. Doc.
33-4, p. 1; Doc. 30-1, p. 4, 68:1. In the following
evaluation, after she participated in the York ODI, Intel
rated her as “Successful, ” noting that she must
“internalize constructive confrontation”;
“need[ed] to improve how she comes across when she is
not in agreement or proposes a different solution”; and
“need[ed] to fully understand when she is the key
decision maker and when she is not.” Doc. 33-4, p. 3. A
rating of “Successful” entitled Ms. Provencio to
a diminished bonus of $1, 700. Doc. 30-1, p. 7, 110:14 -
111:25. Moreover, before participating in the York ODI, Ms.
Provencio had been rated previously as a “Regularly
High Performer.” Doc. 33-9, p. 6.
when her annual review was delivered to her in January 2016,
Sanchez from human resources attended the performance review,
a sign that he was there to deliver bad news, according to
Ms. Provencio. However, in a deposition Sanchez stated that
while not typical, it also not unusual for a human resources
representative to be present during ...