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Gonzales v. County of Taos

United States District Court, D. New Mexico

August 1, 2018

JOHNA GONZALES, Plaintiff,
v.
COUNTY OF TAOS and TAOS COUNTY BOARD OF COMMISSIONERS, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          NANCY D. FREUDENTHAL CHIEF UNITED STATES DISTRICT JUDGE

         This 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 premises.

         I. BACKGROUND

         Plaintiff 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 reorganization plan.

         On 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 employee's supervisor.

         Ms. 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.

         On 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 year.

         On 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.

         On 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 vacation.

         Gonzales 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.

         Defendants seek to dismiss all of Gonzales's claims. The Court will consider the claims in the order they were raised in the Defendants' Motion.

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         B. Gonzales's Breach of Contract Claim- Count Seven.

         Defendants 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.

         "The 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.

         This 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.

         "Whether 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.

         In her 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 226]).

         It is 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.

         Gonzales 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])[1]. However, he was later terminated after there was a substantiated claim of sexual harassment. (Id. at 9 [Cordova depo. at 177]).

         However, 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]).

         These 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.

         Gonzales 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]).[2] 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 implied contract.

         Gonzales 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.

         For 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.

         C. Gonzales's Right to Due Process - Count Three.

         Gonzales 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.

         As 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).

         As 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 terminated.

         Gonzales 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.

         Gonzales 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.

         Additionally, as the Court previously discussed, the County's actions related to other director-level employees did not create a reasonable expectation to continued employment.

         For all these reasons, Gonzales's claim in Count Three - 42 U.S.C. § 1983 Procedural Due Process is DISMISSED.

         D. 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 Two).

         In 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 ...


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