MELINDA L. WOLINSKY, Plaintiff-Appellant,
NEW MEXICO CORRECTIONS DEPARTMENT, Defendant-Appellee.
FROM THE DISTRICT COURT OF SANTA FE COUNTY Francis J.
Matthew, District Judge.
M. Faber Albuquerque, NM for Appellant
Keleher & McLeod, P.A. Zachary R. Cormier Sean Olivas
Albuquerque, NM for Appellee
STEPHEN G. FRENCH, JUDGE.
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.
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
Standard of Review
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.
Common Law Sovereign Immunity Has Been Abolished in New
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.
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.").
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 ...