United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
D. FREUDENTHAL CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendants' Motion for
Summary Judgment. The Court has reviewed the motion, the
response, heard oral argument, and is fully informed in the
Johna Gonzales ("Gonzales") worked as the Detention
Director for the Taos County Juvenile Detention Center from
2011 to 2013 and as the Director of Detentions (including
both Adult and Juvenile Detentions) from August 21, 2013 to
January 8, 2016, when she was terminated. In 2013, when she
was hired as the Director of Detentions, the County paid
Gonzales an hourly rate of $32.61. Prior to taking that
position, Gonzales worked at McKinley County from 1995 to
2011, serving in various positions, but served as director
for the Juvenile Detention Center for six years. In 2011,
Gonzales took the position of Juvenile Detention Director for
Taos County. As previously noted, in 2013 she became director
of both the adult and juvenile detention centers as part of a
March 6, 2015, Taos County Facilities Management Director
Mark Flores reported to Taos County Human Resource Manager,
Renee Weber, that Gonzales received an inappropriate text
message from one of his employees. Gonzales did not report
this text to HR, but reported it to Mr. Flores, the
Weber contacted Gonzales about the incident. Gonzalez
confirmed the incident occurred and Ms. Weber investigated.
The County disciplined the employee with a 30-day suspension
and after his suspension ended he did not return to work.
October 15, 2015, Leonardo Cordova became the Taos County
Manager, replacing former manager Stephen Archuleta, who
retired. On October 27, 2015, Cordova sent Gonzales a
"Letter of Expectations" and also asked her to
review and sign her position description. Gonzales signed her
job description for Cordova, confirming that she was
classified as Exempt and at a Pay Grade E5 on the Taos County
pay scale, which was $32.61 per hour, or $68, 828.00 per
December 18, 2015 there was an incident in the detention
center. Prior to this time, Gonzales had implemented
"tier time" at the Adult Detention Center (ADC).
Tier time allowed inmates on each of the two floors out of
their cells at different times, but required them to be in
their cells when the other floor was out. Gonzales
implemented tier time based on safety concerns for officers
and inmates because the facility was significantly
understaffed. Prior to December 18, 2015, inmates were
agitated about the use of tier time. On December 18, 2015,
Detention Officer Matt Tafoya called a Code 1 at
approximately 12:45 p.m. after discovering inmate
Espejo's face was covered in blood. Tafoya called for the
inmates in A pod to go on lockdown, but they refused. Lt.
Brenda Zamora arrived to find the inmates yelling and saying
they were not going to do tier time anymore. Both Lt. Zamora
and Tafoya questioned Espejo, who claimed he had slipped and
fell. An unidentified officer informed Gonzales that the
inmates were refusing to go into lockdown and wanted to speak
with her in the pod. Gonzales took 15-30 minutes to go back
to speak to the inmates. When she arrived, the inmates were
calm and quiet. Gonzales spoke to the inmates and agreed to
abolish tier time.
December 23, 2015, inmate Jonathan Lopez was assaulted and
was transported to the hospital for treatment. Gonzales
learned of the assault five days after it occurred, on
December 28, 2015, when she returned to work after Christmas
met with County Manager Cordova and Deputy County Manager
Brent Jaramillo to discuss these issues on January 4, 2016.
On January 8, 2016, Cordova terminated Gonzales. After her
termination, Gonzales brought a complaint alleging several
claims. Specifically, Gonzalez claims Retaliation in
Violation of Title VII -Count One; Violation of New Mexico
Human Rights Act -Count Two; 42 U.S.C. § 1983 Due
Process Violation - Count Three; Title VII - Disparate
Treatment - Count Four; Title VII - Hostile Work Environment-
Count Five; Municipal Liability - Count Six; Breach of
Employment Contract - Count Seven; Violation for the Fair Pay
for Women Act - Count Eight; and Violation of the Equal Pay
Act - Count Nine.
seek to dismiss all of Gonzales's claims. The Court will
consider the claims in the order they were raised in the
Summary Judgment Standard
judgment is appropriate where the movant has demonstrated
that there is no genuine dispute as to any material fact and
it is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); Johnson v. Weld County, Colo., 594 F.3d 1202,
1207-08 (10th Cir. 2010). As a general matter, the summary
judgment movant has the burden to produce evidence supporting
its claims. Kannady v. City of Kiowa, 590 F.3d 1161,
1169 (10th Cir. 2010). If the movant does so, the burden of
production shifts to the party opposing summary judgment to
demonstrate a genuine issue of material fact exists.
Id. At all times the Court must view the evidence in
the light most favorable to the party opposing summary
judgment. Id. at 1168. There is a genuine issue of
material fact if a reasonable jury could find in favor of the
non-moving party. Id. at 1169. In addition, the
Court may only consider evidence that is admissible at trial,
inadmissible evidence should be disregarded.
Johnson, 594 F.3d at 1209. "It is well settled
in this circuit that we can consider only admissible evidence
in reviewing an order granting summary judgment."
Gross v. Burggraf Const. Co., 52 F.3d 1531, 1541
(10th Cir. 1995) (citations omitted).
Gonzales's Breach of Contract Claim- Count
claim Gonzales cannot prove her breach of contract claim
because her employment was at will. Gonzales responds that
she had an implied employment contract. This issue is
governed by New Mexico law.
general rule in New Mexico is that an employment contract is
for an indefinite period and is terminable at the will of
either party." Hartbarger v. Frank Paxton
Co., 857 P.2d 776, 779 (1993) (internal citation
omitted). Either party can terminate an at-will employment
relationship "at any time for any reason or no reason,
without liability." Id. at 779 (internal
citation omitted). An exception to this general rule exists
where there is an implied contract. Id.
Court has upheld findings of an implied employment contract
provision that restricted the employer's power to
discharge where the facts showed that the employer either has
made a direct or indirect reference that termination would be
only for just cause or has established procedures for
termination that include elements such as a probationary
period, warnings for proscribed conduct, or procedures for
employees to air grievances. See Newberry v.
Allied Stores, Inc., 108 N.M. 424, 427, 773 P.2d 1231,
1234 (1989) (upholding finding of implied contract based on
employee manual, words, and conduct of parties);
Kestenbaum v. Pennzoil Co., 108 N.M. 20, 24-26, 766
P.2d 280, 284-86 (1988) (affirming finding of implied
contract based on words and conduct of parties), cert,
denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1026
(1989); Lukoski v. Sandia Indian Management Co., 106
N.M. 664, 667, 748 P.2d 507-510 (1988) (upholding finding of
oral contract amended by employee handbook); Forrester v.
Parker, 93 N.M. 781, 782, 606 P.2d 191, 192 (1980)
(holding that, when terminating non-probationary employee,
employer is bound by policies established in "personnel
policy guide" that control the employer-employee
relationship). We have upheld findings that there was no
implied contract in cases where the alleged promise by the
employer was not sufficiently explicit. See
Shull v. New Mexico Potash Corp., 111 N.M. 132, 135,
802 P.2d 641, 644 (1990) (affirming summary judgment in favor
of employer where employee had no bargained-for expectations
and employee handbook did nothing to alter at-will
relationship); Sanchez v. The New Mexican, 106 N.M.
76, 79, 738 P.2d 1321, 1324 (1987) (affirming grant of
directed verdict in favor of employer where language in
employee handbook was of a non-promissory nature and was
merely a declaration of employer's general approach to
the subject matter discussed).
Id. at 779-780.
an employer's words and conduct support a reasonable
expectation on the part of employees that they will be
dismissed only in accordance with specified procedures or for
specified reasons generally is a question of fact for the
jury." Mealand v. EMM. Med. Or., 33 P.3d 285,
289 (2001). "[B]ecause an employee's expectation
based on an employer's words or conduct must meet a
certain threshold of objectivity, an employer may be entitled
to judgment as a matter of law if the employee's
expectations are not objectively reasonable." West
v. Wash. Tru Solutions, LLC, 224 P.3d 651, 653
(Ct.App.2009). "In examining implied employment
contract cases, we always have required that the promise that
is claimed to have altered the presumed at-will term be
sufficiently explicit to give rise to reasonable expectations
of termination for good cause only."
Hartbarger, 857 P.2d at 783.
response, Gonzales points to Taos County's policy of
disciplining its nonclassified employees prior to demotion or
other adverse employment action and also claims City Manager
Cordova believed that "at-will" Directors could
only be demoted for cause. Missing from Gonzales's
response is any specific statements to her or declarations in
handbooks that she was provided indicating a promise by Taos
County that she could only be terminated for cause. The only
specific item Gonzales points to is the October 27, 2015
Letter of Expectations. Gonzales testified that she believed
that if she did everything Cordova wanted in the letter that
she would not be fired. (Doc. 45-1 at 31 [Gonzales depo. at
undisputed that Gonzales's July 29, 2011 offer of
employment stated that Gonzales was hired for an unclassified
"at-will" position. (Doc. 45-3). Additionally,
Gonzales signed a "Unclassified Employment
Agreement" on August 18, 2011, directing her to Section
2 and 2.6 of the Taos County Personnel Policy Manual. (Doc.
45-5). The Taos County Personnel Policy Manual and Union
Contract provided information on the different types of
classifications and provides that "unclassified"
positions are "terminable-at-will" and "not
subject to the Fair Labor Standards Act." (Doc. 45-4 at
7 [Policy Manual at 2.6]). On August 27, 2014, Gonzales
received a letter memorializing her position as the ADC/JDC
Administrator and increasing her pay. (Doc. 45-7). This
letter did not change her classification. On October 27,
2015, Gonzales received a "Letter of Expectations"
from Cordova. The letter explicitly stated that Gonzales'
position was an "exempt at will position", more
importantly the letter did not indicate any form of
progressive discipline or provide any promise of continued
employment if Gonzales complied with the terms of the letter.
also claims the County had a policy of providing discipline
to unclassified employees prior to demotion or other adverse
employment action. Cordova testified regarding two instances
he had with department heads that had been written up or
provided a chance to cure minor deficiencies. The Solid Waste
Director Deward Martinez had two instances where he took his
county vehicle home without prior approval and was given a
write-up for those actions. (Doc. 53-2 at 7 [Cordova depo. at
166]). The other instance was a public works supervisor Earl
Salazar, who also took county property home for personal use.
(Id. [Cordova depo. at 168]). Both of these
individuals were provided "guidance and coaching"
as to county vehicles and when they could be taken home.
(Id.). There were other issues with Salazar, he had
problems with his chain of command and he was demoted to a
position for which he was closer to being qualified and which
had a lower salary. (Id. at 8 [Cordova depo. at
172-73]). However, he was later terminated after
there was a substantiated claim of sexual harassment.
(Id. at 9 [Cordova depo. at 177]).
Cordova testified that these employees were not subject to
"progressive discipline" at the director level.
Cordova also testified that during his tenure there were
other firings, including the IT director and the EOM
Coordinator and there was no indication of any process
provided to those individuals. (Id. at 10-11
[Cordova depo. at 180-181]).
examples do not provide sufficient evidence of county policy
that at-will director employees could only be terminated for
cause. There is no record evidence from these employees'
files to show progressive discipline, the original terms of
their employment or other information related to their
employment. Rather, the only evidence is Cordova's
testimony. Additionally, there is no evidence that Gonzales
was aware of these employees' treatment prior to her
termination to provide her a basis to believe her employment
was not at-will, despite her signed employment agreement.
also claims that Cordova did not believe he could fire her
without cause. However, Cordova's actual statement was
that he wouldn't have fired her
for no reason, not that he
couldn't fire her for no
reason. (Id. at 11 [Cordova depo. at
184]). Cordova stated that his
"understanding of the at-will was there's not a need
for a process." (Id.). Even if Cordova's
statements could have somehow created an implied employment
contract, these statements were made during Cordova's
deposition and were not statements he made to Gonzales prior
to her termination that could be used as evidence of an
failed to identify any words or conduct by the County during
her employment that would establish her expectation, that she
could only be fired after being afforded due process, was
objectively reasonable. She does not cite to any document or
any statement made directly to her that would support a claim
that she had an implied-in-fact employment contract.
these reasons, Gonzales fails to establish any dispute of
material fact that a reasonable jury could find she had an
implied employment contract with the County. As a result,
Gonzales's Claim in Count Seven for Breach of Employment
Contract is DISMISSED.
Gonzales's Right to Due Process - Count Three.
also claims a violation of her Constitutional right to due
process. "As a general principle of due process law,
public employees with a legitimate expectation of continued
employment are protected from termination without just cause,
notice, and opportunity to be heard." City of
Albuquerque v. AFSCME Council 18 ex rel Puccini,
2011-NMCA-021, H 11, 149 N.M. 379, 382, 249 P.3d 510, 513. To
assert a claim for violation of her due process rights,
Gonzales must establish that she had a protected property
right in her continued employment. Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 538, (1985). In considering
whether a city employee had a right to continued employment,
the Tenth Circuit has explained:
Driggins claims that her right to continued employment with
the City constitutes a property interest protected by the
Fourteenth Amendment. Such a property interest "exists
if state or local law creates 'a sufficient expectancy of
continued employment.'" Campbell v. Mercer,
926 F.2d 990, 992 (10th Cir.1991) (quoting Vinyard v.
King, 728 F.2d 428, 432 (10th Cir.1984)). The existence
of a property interest is "defined by existing rules or
understandings that stem from an independent source such as
state law rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits." Roth, 408 U.S. at 577, 92 S.Ct. at
2709; see also Carnes v. Parker, 922 F.2d
1506, 1509-10 (10th Cir.1991). The "sufficiency of the
claim of entitlement must be decided by reference to state
law." Bishop v. Wood, 426 U.S. 341, 344, 96
S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); see also
Vinyard, 728 F.2d at 432.
Driggins v. City of Oklahoma City, Okl, 954 F.2d
1511, 1513-14 (10th Cir. 1992). Thus, Gonzales's claim is
governed by New Mexico law.
previously noted, "[t]he general rule in New Mexico is
that an employment contract is for an indefinite period and
is terminable at the will of either party."
Hartbarger, 857 P.2d at 779 (internal citation
omitted). Either party can terminate an at-will employment
relationship "at any time for any reason or no reason,
without liability." Id. at 779 (internal
citation omitted). "At-will employees lack a property
interest in continued employment." Darr v. Town of
Telluride, Colo, 495 F.3d 1243, 1252 (10th Cir. 2007)
(citing Bishop v. Wood, 426 U.S. 341, 348 (1976).
discussed above, Gonzales was hired as an unclassified,
at-will employee. As her position changed, her classification
never did. Even in her letter of expectations on October 27,
2015, Cordova reminded Gonzales that she was an "exempt
at-will" employee. Gonzales fails to point to any
evidence that would create a question of fact that she had a
protected property interest in her continued employment. As a
result, she was not entitled to due process prior to being
claims she had a protected property right to the financial
benefit that flowed from her employment. This argument also
lacks merit. The cases cited by Gonzales do not stand for the
proposition that any public employee receiving a salary is
entitled to due process. Rather, the cases discuss whether
the requirement for due process is triggered by holding a
position, or by receiving the salary. In Bd. of Educ. of
Carlsbad Mun. Sch v. Harrell, 1994-NMSC-096, ¶ 22,
118 N.M. 470, 478, 882 P.2d 511, 519, the Court found a
school board did not deprive the former superintendent of any
property interest by suspending him with pay, because his
"claim of entitlement to employment was satisfied so
long as he continued to receive the full compensation due
under his contract." The issues in Harrell are
completely different from the issues in this case.
claims she was entitled to the protections of the procedure
set forth in the Taos County Disciplinary Policy. However,
she fails to provide any basis for the Court to find that she
would be entitled to protections under the policy. There is
no question of fact that Gonzales was an unclassified,
at-will employee. As a result, Gonzales did not have a
protected property interest in her continued employment and
she was not entitled to process prior to her termination.
as the Court previously discussed, the County's actions
related to other director-level employees did not create a
reasonable expectation to continued employment.
these reasons, Gonzales's claim in Count Three - 42
U.S.C. § 1983 Procedural Due Process is DISMISSED.
Title VII Claims for Retaliation (Count One), Disparate
Treatment (Count Four), Hostile Work Environment (Count Five)
and Violations of the New Mexico Human Rights Act (Count
Count One, Gonzales claims that after she reported sexual
harassment, the County retaliated against her. In Count Four,
Gonzalez claims Disparate Treatment in violation of Title
VII. In Count Five, Gonzales claims hostile work environment
in violation of Title VII. Based on the same conduct Gonzales
also claims a violation of New ...