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Wolinsky v. New Mexico Corrections Department

Court of Appeals of New Mexico

August 30, 2018

MELINDA L. WOLINSKY, Plaintiff-Appellant,

          APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Francis J. Matthew, District Judge.

          Daniel M. Faber Albuquerque, NM for Appellant

          Keleher & McLeod, P.A. Zachary R. Cormier Sean Olivas Albuquerque, NM for Appellee



         {¶1} This case requires this Court to resolve whether the Fair Pay for Women Act (the FPWA) provides state employees the same right to pursue sex-based wage discrimination claims that persons employed by private employers possess. We answer this question affirmatively, and therefore reverse the order of the district court dismissing Plaintiffs case.


         {¶2} Melinda Wolinsky (Plaintiff) sued her employer, the New Mexico Corrections Department (Defendant), for sex-based pay discrimination in violation of the FPWA. She alleged that her salary was approximately $8, 000 less than that of a male employee also employed as a "Lawyer-A" in Defendant's Office of General Counsel. Defendant moved to dismiss under Rule 1-012(B)(1) NMRA and Rule 1-012(B)(6) NMRA. Defendant first argued that the FPWA does not apply to Defendant because, in providing a cause of action against an employer, the FPWA does not define "employer" to include the state and its agencies. Defendant contrasted the language of the FPWA with that of other employment-related statutes, such as the New Mexico Human Rights Act (the NMHRA), wherein the definition of "employer" expressly includes the state. See NMSA 1978, § 28-1-2(A), (B) (2007). Second, Defendant argued that the "general grant of immunity" in the Tort Claims Act (the TCA) applies. See NMSA 1978, § 41-4-4(A) (2001) (stating that "[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort" except as waived by the provisions of the TCA and other named statutes). The district court granted Defendant's motion to dismiss, concluding that Defendant is not subject to the FPWA.


         A. Standard of Review

         {¶3} Dismissals for lack of subject matter jurisdiction pursuant to Rule 1-012(B)(1) based on Defendant's claim of sovereign immunity and for failure to state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6) are reviewed de novo. Ping Lu v. Educ. Tr. Bd. o/N.M., 2013-NMCA-010, ¶ 7, 293 P.3d 186; Moriarty Mun. Schs. v. Pub. Schs. Ins. Auth, 2001-NMCA-096, ¶¶ 5, 17131 N.M. 180, 34 P.3d 124. This appeal also involves interpretation of the FPWA. "Statutory interpretation is an issue of law, which we review de novo." N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm'n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105. We address Defendant's argument that Plaintiffs claim is barred by sovereign immunity and then turn our attention to the FPWA itself.

         B. Common Law Sovereign Immunity Has Been Abolished in New Mexico

         {¶4} In Hicks v. State, the New Mexico Supreme Court abolished common law sovereign immunity for tort actions. 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 1153 (stating that "[c]ommon law sovereign immunity may no longer be interposed as a defense by the [s]tate, or any of its political subdivisions, in tort actions"), superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 140 N.M. 205, 141 P.3d 1259; see Hydro Conduit Corp. v. Kemble, 1990-NMSC-061, ¶ 13, 110 N.M. 173, 793 P.2d 855 (recognizing the abolishment of the common law doctrine of sovereign immunity); Lucero v. Richardson & Richardson, Inc., 2002-NMCA-013, ¶ 7, 131 N.M. 522, 39 P.3d 739 ("The legal landscape changed in 1975, however, when our Supreme Court abolished common law sovereign immunity[.]"). In Hicks, our Supreme Court concluded that, in the context of tort claims, sovereign immunity was "causing a great degree of injustice[, ]" to such an extent that it rendered the doctrine unjustifiable. 1975-NMSC-056, ¶ 10.

         {¶5} In response to Hicks, the Legislature enacted the TCA the following year. See NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2015); Smith v. Vill. of Corrales, 1985-NMCA-121, ¶ 5, 103 N.M. 734, 713 P.2d 4 (describing the enactment of the TCA as a response to the decision in Hicks). The TCA expressly reinstated the state's sovereign immunity for tort claims, but then expressly waived immunity in several specifically enumerated circumstances. See §§ 41-4-5 to -12; Smith, 1985-NMCA-121, ¶ 5; see also Upton, 2006-NMSC-040, ¶ 8 ("The TCA grants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances.").

         {¶6} The same year that it enacted the TCA, the Legislature enacted another statute addressing the state's liability for contract claims. See NMSA 1978, § 37-1-23 (1976); Hydro Conduit Corp.,1990-NMSC-061, ¶ 13. Section 37-1-23(A) grants immunity to the state in actions based on contract except for claims based upon a valid, written contract. See Hydro Conduit Corp.,1990-NMSC-061, ¶ 17 (explaining that the legislative history of the statute indicates that the purpose of enacting Section 37-1-23 "was to reinstate the sovereign immunity which had been abolished by Hicks ...

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