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Sinfuego v. Curry County Board of County Commissioners

United States District Court, D. New Mexico

December 27, 2018

AMANDA SINFUEGO, Plaintiff,
v.
CURRY COUNTY BOARD OF COUNTY COMMISSIONERS, a political sub-division existing under the laws of the state of New Mexico; LANCE PYLE, in his official capacity as County Manager and individually; TORI SANDOVAL, in her official capacity as Curry County Curry Detention Administrator and in her individual capacity, Defendants.

          Eric D. Dixon Attorney & Counselor at Law, PA. Portales, New Mexico Attorney for the Plaintiff

          Quentin Smith Eleanor C. Werenko Sheehan & Sheehan, P.A. Albuquerque, New Mexico -and- Bryan D. Evans Barbara Evans Carla A. Neusch Williams Atwood, Malone, Turner & Sabin, P.A. Roswell, New Mexico Attorneys for the Defendants Curry County Board of Commissioners, Lance Pyle, and Tori Sandoval

          Dennis K. Wallin Brandon Huss Wallin, Huss & Associates, LLC Moriarty, New Mexico Attorneys for the Defendant Lance Pyle

          P. Scott Eaton James P. Barrett Eaton Law Office, P.C. Albuquerque, New Mexico Attorneys for the Defendant Tori Sandoval

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 121)("Motion"). The Court held a hearing on September 25, 2018. The primary issues are: (i) whether Board of County Commissioners of Curry County, New Mexico ("Curry County") violated Plaintiff Amanda Sinfuego's First Amendment to the Constitution of the United States of America rights to freedom of speech, to petition for redress of grievances, and to freedom of association when Sinfuego's employment with Curry County Detention Center ("Curry Detention") was terminated after she petitioned Defendant Lance Pyle, the Curry County Detention Manager, about workplace conditions; met with Pyle about collective bargaining and workplace concerns; texted Curry County Detention Officers ("Curry Officers") notifying them that Pyle wanted to speak with them individually to prevent collective bargaining; signed the Petition from the Curry Officers to Administrator Tori Sandoval at 1, filed June 27, 2018 (Doc. 125-10)("Petition from Curry Officers to Sandoval"), and reported sexual harassment; (ii) whether Curry County took adverse employment actions against Sinfuego when it terminated her employment, removed her from the Special Operations Response Team ("S.O.R.T."), gave her night shifts and shifts in the women's annex, and interfered with her ability to choose her shifts; (iii) whether the Court should find Curry County liable for violating Sinfuego's First Amendment rights when Curry County had no custom dictating retaliation against union activities; (iv) whether Curry County violated the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. § 10-16C-3(A) ("NMWPA"), when it terminated Sinfuego after she complained about Pyle attempting to meet individually with Curry Officers seeking to create a union. Regarding Sinfuego's First Amendment claims, the Court concludes that: (i) Sinfuego's activities related to safety at Curry Detention touch matters of public concern, but Sinfuego's actions and statements related to pay, unionizing, shift bids, and sexual harassment do not involve public concerns; (ii) a jury could find that Curry County engaged in adverse employment actions when it terminated Sinfuego and removed her from S.O.R.T. but not that Curry County took adverse employment actions when it interfered with Sinfuego's ability to choose her shift, and assigned her to the night shift and women's annex; (iii) Sinfuego has not demonstrated a genuine question of fact whether Sinfuego's activities motivated Curry County's actions; and (iv) Sinfuego has not established a genuine question of fact whether Curry County terminated Sinfuego's employment, because she engaged in inappropriate sexual conversations and drawings during work hours in violation of the Curry County sexual harassment policy. Sinfuego has also not established a genuine factual question whether Curry County had a practice of retaliating against individuals engaged in union activities. Having resolved all of Sinfuego's federal claims, the Court will dismiss the state law claims without prejudice.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in the Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 122)("Memo."); in the Plaintiff Amanda Sinfuego's Response to "Defendant Curry County's Motion for Summary Judgment" and "Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment" [Doc. 121-122], filed June 27, 2018 (Doc. 125)("Response"); and in the Reply Brief in Support of Defendant Curry County's Motion for Summary Judgment at 2, filed July 13, 2018 (Doc. 127)("Reply"). Curry Detention hired Sinfuego on August 16, 2010. See Memo. ¶ 1, at 2 (asserting this fact)(citing Deposition of Amanda Sinfuego at 29:8-30:4 (taken April 20, 2018), filed June 12, 2018 (Doc. 122-1)("Sinfuego Depo. Doc. 122-1"[1])).[2] On October 15, 2012, Gerry Billy, the Curry Detention Administrator in 2012, appointed Sinfuego as the Interim Executive Secretary, an administration and management position - not a Curry Officer position. See Memo. ¶ 2, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 72:5-73:6; id. at 75:3-15); Response ¶ 1, at 1 (admitting this fact).

         On November 16, 2012, Curry Officers sent the Memorandum to County Administration (dated Nov. 16, 2012), filed June 12, 2018 (Doc. 122-2); the Memorandum to County Administration is a petition, which Sinfuego did not sign, because she held the Interim Executive Secretary position. See Memo. ¶ 3, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 97:19-25; Id. at 103:14-104:22; Memorandum to County Administration at 1-2); Response ¶ 1, at 1 (admitting this fact). The Memorandum to County Administration was sent "[o]n behalf of all detention officers, who currently work in the Curry County Adult Detention Center of Clovis New Mexico." Memo. ¶ 3, at 2 (asserting this fact)(citing Memorandum to County Administration at l).[3] In the Memorandum to County Administration, the Curry Officers ask for a pay raise, complain about work conditions, and discuss unionizing. See Memo. ¶ 4, at 2 (asserting this fact)(citing Memorandum to County Administration at l).[4] The Curry Officers, for instance, state: "We the workers are organizing to negotiate terms of working conditions vacation and pay," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at l);[5] and they also state: "We have looked into contacting and forming a union which can delegate on our behalf if necessary," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at l).[6] Regarding the work environment, the Curry Officers complain: "Every day we step into an environment of danger where in the past three months four Officers have been assaulted," Response ¶ 2(i), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact); and the Curry Officers further state: "Poor leadership is reflected by the county manager and Commissioners who only seem to collect their 100, 000 plus wages," Response ¶ 2(ii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact). Finally, the Curry Officers threaten: "We will be contacting the newspapers and making our plea public and only do that so our plight will not be ignored." Response ¶ 2(iii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact).

         On December 3, 2012, Sinfuego and Curry Officer Rene Garcia met with Pyle about the Curry Officers' concerns. See Memo. ¶ 5, at 1 (asserting this fact).[7] At the meeting, Pyle noted that Sinfuego, as the Interim Executive Secretary, was "considered part of management," and thus Pyle would not treat her as representing the Curry Officers. Memo. ¶ 5, at 3 (asserting this fact)(citing Transcript of Conference with Lance Pyle, Amanda Sinfuego, and Rene Garcia on December 3rd, 2012 at 1:14-25 (taken Dec. 3, 2012), filed June 12, 2018 (Doc. 122-2)("Conf. Tr.")).[8] Sinfuego informed Pyle that she would be returning to her position as a Curry Officer. See Response ¶ 3(i), at 2 (asserting this fact)(citing Conf. Tr. at 1:20).[9] At the meeting, Garcia did most of the talking. See Memo. ¶ 6, at 3 (asserting this fact).[10] Garcia, Sinfuego, and Pyle discussed the Curry Officers' concerns about safety, including attacks on Curry Officers and the ratio of Curry Officers to inmates. See Response ¶¶ 3(ii)-(iii), at 2 (asserting this fact)(citing Conf. Tr. at 4:17; Id. at 5:15-17; Id. at 6:15-18; Id. at 8:4-12).[11] Garcia explained to Pyle that the Curry Officers' "main concern [is] just [their] safety," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 4:17);[12] that a couple days earlier there "was one person in [the] facility for 200 inmates," Reply at3 (asserting this fact)(quoting Conf. Tr. at 5:15-17);[13] that "the facility [was] not accommodating for safety and security," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 6:15);[14] and that "there have been a number of attacks on us once again because there is understaff[ing]," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 8:3-12).[15] Sinfuego stated: "[E]veryone is looking toward going to collective bargaining." Response ¶ 3(v), at 2 (asserting this fact)(quoting Conf. Tr. at 11:18-24).[16] Pyle told Sinfuego and Garcia: "We are open to meet as a group, individually, and let [the Curry Officers] know, it's an open door policy and they can contact me and I can meet with them in the evening or weekends if need[ed]." Memo. ¶ 6, at 3 (asserting this fact)(quoting Conf. Tr. at 12:4-6).[17] Curry Detention had a policy deterring employees to "jump management" and communicate directly with Pyle. Response ¶ 4(ii) (quoting Sinfuego Depo. Doc. 125-7 at 114:20-21).[18]

         After the meeting, Pyle posted a letter at the time clock and sent letters to the Curry Officers offering to meet with them individually. See Memo. ¶ 7, at 3 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 117:3-19).[19] In a December 4, 2012, letter to Garcia, Pyle wrote:

I will be willing to meet with you in the next week to gather some additional information and to be able to provide that information to the County Commission in an attempt to assist you with some kind of resolution. You also have the right to file for collective bargaining and enclosed is a copy of Curry County Ordinance #2004-07.

         Memo. ¶ 8, at 3-4 (asserting this fact)(quoting Letter from Lance Pyle to Rene Garcia at 1 (sent Dec. 4, 2012), filed June 12, 2018 (Doc. 122-2)).[20] Pyle wanted the employees to know that unionizing was not in their best interests. See Response ¶ 3(x), at 3 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Comm'rs. D-905-CV-0201400420, Transcript of Trial on Merits at 235:19-22, (Ninth Judicial District Court, County of Curry, State of New Mexico)(taken July 28, 2016), filed June 27, 2018 (Doc. 125-5)("Trial Tr.")).[21] Sinfuego believed that Pyle "wanted to just stop this, stop this whole possible unionization" and that Curry Officers feared Pyle. Memo. ¶ 7, at 3 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 120:9-22).[22] "[Detention officers came to Ms. Sinfuego and told her they did not want to meet with the County Manager because it could cost them their jobs." Response 5(ii), at 4 (asserting this fact)(citing Deposition of Amanda Sinfuego at 34:1-10 (taken April 20, 2018), filed June 27, 2018 (Doc. 125-7)("Sinfuego Depo. Doc. 125-7")).[23] "People lost their jobs for simple things. That was the reason why no one went to him individually." Response ¶ 5(ii), at 4 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 34:1-10).[24]

         On December 6, 2012, Pyle informed Billy via email that Pyle learned through Sinfuego that the Curry Officers refused to meet with Pyle.[25] See Memo. ¶ 9, at 4 (asserting this fact)(citing Email from Lance Pyle to Gerry Billy at 1 (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2)). Pyle wrote:

Gerry as you are well aware with your experience in management, your Executive Secretary cannot be involved in collective bargaining, neither can your other Curry Detention Management and Administration Staff. Please inform your administrative staff and all other members of management that they are not to interfere or otherwise become involved in anything pertaining to Curry Detention negotiations with County Management and/or County Managers.

See Memo. ¶ 9, at 4 (asserting this fact)(quoting Email from Lance Pyle to Gerry Billy at l).[26] Billy informed Pyle that Sinfuego filled a temporary position and would be reassigned to a position not in an administrative role. See Response ¶ 3(vi) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2)); id. ¶ 7(iii) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle).[27]

         Also on December 6, 2012, Sinfuego texted the Curry Officers about Pyle's letters. See Memo. ¶ 10, at 4-5 (asserting this fact); Response ¶ 8, at 5 (admitting this fact). Sinfuego wrote:

Hey everyone, it's Amanda just informing everyone about the union. If you do not want to receive information please inform me and I will take you off our texting list. Lance Pyle sent out a packet informing that he wants to meet with us individually and is trying to scare everyone. Please be aware this is harassment and you do not have to go see him. He is trying to separate us and keep us from forming a union. This is intimidation and also illegal. We should be getting a grandfather union coming down next week to help begin our paperwork. Remember that the commission or Pyle cannot do anything to fire us or make us go on leave, that would be retaliation and illegal. We have everyone's support in our admin. We will have more info in our meeting this Monday. Any info please contact me or Rene:)

Memo. ¶ 10, at 4-5 (asserting this fact)(citing Email from Lance Pyle to Steve Doerr at 1 (sent Dec. 13, 2012), filed June 12, 2018 (Doc. 122-2)("Pyle Email")). See Response ¶ 8, at 5 (admitting this fact).[28] Sinfuego believed that Pyle sent the letters "to scare everyone" and to prevent them from unionizing by saying "he wanted to fix things." Memo. ¶ 11, at 5 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 143:15-16; Id. at 148:17 and citing Sinfuego Depo. Doc. 122-1 at 143:14-23; Id. at 144:21-145:2; Id. at 146:14-147:8; Id. at 148:6-149:17).[29]Sinfuego acted improperly by sending the text message during work hours. See Memo. ¶ 12, at 5 (asserting this fact)(citing Deposition of Gerry Billy at 91:22-92:3 (taken April 29, 2018), filed June 12, 2018 (Doc. 122-2)("Billy Depo. Doc. 122-2"); Id. at 99:24-100:5).[30]

         On December 7, 2012, Stephen Doerr, the County Attorney, emailed Billy about the December 6, 2012, text message. See Memo. ¶ 13, at 5 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 2:19 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 2:19 P.M. Email")); Response ¶ 1, at 1 (admitting this fact). Doerr wrote that Sinfuego had sent the communication "during work hours," that "her communication needs to stop," and that Billy "should also review the County policy and determine whether or not disciplinary action against Ms. Sinfuego is appropriate." Memo. ¶ 13, at 5 (asserting this fact)(quoting Doerr Email at 1); Response ¶ 1, at 1 (admitting this fact). Doerr assumed that Sinfuego spoke for Billy. See Response ¶ 3(viii), at 3 (asserting this fact)(citing Doerr 2:19 P.M. Email at l).[31] Doerr later stated: "There were erroneous and false statements in that text, and the statement regarding the Admin support needs to be addressed." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 3:09 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 3:09 P.M. Email")).[32] Billy responded that he addressed the matter, and it was "time to move on." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Gerry Billy to Steve Doerr at 1 (sent Dec. 7, 2012 at 3:19 P.M.), filed June 12, 2018 (Doc. 122-2)).[33] Billy subsequently verbally "counseled" Sinfuego, which he considered discipline and "the right thing to do," and Sinfuego neither received further discipline nor sent another text about the union during work hours. Memo. ¶ 14, at 6 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 102:23-104:10; Id. at 106:4-20; id, at 108:25-109:16). See Response ¶ 1, at 1 (admitting this fact).

         On December 13, 2012, Pyle sent an email to Doerr about the text. See Memo. ¶ 15, at 6 (asserting this fact)(citing Pyle Email at 1); Response ¶ 1, at 1 (admitting this fact). Pyle described the December 6, 2012, text message as "incorrect, misleading, and slanderous," and complained that Sinfuego, on December 10, 2012, "again was distributing material on County time with incorrect, misleading and slanderous information to the Adult and the Juvenile Curry Detention employees." Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). Pyle continued:

This behavior violates several sections of the Curry County Personnel Policy and must be addressed. It is the Detention Administrator's duty/responsibility to take disciplinary action against Ms. Sinfuega [sic] and notify the County Detention employees in writing that the text was sent by Ms. Sinfuego is incorrect, misleading and slanderous. I would request that letter be signed by every employee to guarantee that every employee was notified with a copy being provided to the Personnel Department for the employee files.
If this was any other employee they would be receiving disciplinary action for this conduct/behavior. If the department head refused to address the matter with disciplinary action; disciplinary action would be taken against them. The Curry Detention cannot be treated any differently and the Curry Detention must be held to the same standards.

Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). At the time Pyle sent this email, he did not know that Billy had verbally counseled Sinfuego or that Assistant County Manager, Connie Harrison, had given him erroneous information about Sinfuego distributing material again on December 10, 2012. See Memo. ¶ 16, at 6 (asserting this fact)(citing Affidavit of Lance Pyle ¶ 3, at 1 (dated June 12, 2018), filed June 12, 2018 (Doc. 122-2)("Pyle Aff"); Billy Depo. Doc. 122-2 at 117:5-122:16).[34] After receiving the email, Billy did not further discipline Sinfuego, because "he had 'already taken care of it.'" Memo. ¶ 16, at 6-7 (asserting this fact)(quoting Billy Depo. Doc. 122-2 at 117:5-122:16).[35] Pyle thought that Billy mishandled the situation and wanted "something done about Billy." Response ¶ 11(ii), at 6 (quoting Trial Tr. at 237:6-11).[36] Billy learned, on January 7, 2013, when his contract was due for renewal, that Curry County would not renew his contract as the Curry Detention Administrator, and Billy believed his decision not to discipline Sinfuego further influenced Curry County's decision. See Memo. ¶ 17, at 7 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 19:1-7; Id. at 22:19-23:5).[37] A jury found that Billy's refusal to further discipline Sinfuego motivated Curry County not to renew his contract. See Response ¶ 12(i), at 7 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Cty. Comm'rs. D-905-CV-2014-00420, Special Verdict at 1 (Ninth Judicial District, County of Curry, State of New Mexico), filed in state court June 18, 2016, filed in federal court June 27, 2018 (Doc. 125-6)).[38]

         Curry County appointed Tori Sandoval[39] as the Interim Curry Detention Administrator. See Memo. ¶ 17, at 7 (asserting this fact)(citing Deposition of Tori Sandoval at 1 (taken April 19, 2018), filed June 12, 2018 (Doc. 122-2)("Sandoval Depo. Doc. 122-2")).[40] Sheila Morrison, whom Pyle had asked Billy to fire, and Keith Farkas were transferred to different positions after Billy's departure. See Response ¶ 13(i), at 7 (asserting this fact)(citing Shiela Morrison Testimony at 76:13-24 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-8); Id. at 77:1-5; Id. at 77:12-14; Id. at 77:18-24; Keith Farkas Testimony at 68:3-4 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-9); Id. at 68:7-18; Deposition of Gerry Billy at 170:1-21 (taken April 29, 2018), filed June 27, 2018 (Doc. 125-1 l)("Billy Depo. Doc. 125-11")).[41] Farkas "was treated like a 'leper.'" Response ¶ 13(ii), at 7 (asserting this fact)(quoting Keith Farkas Testimony at 128:8-10).[42] After Sandoval's appointment, Sinfuego was removed from S.O.R.T., in which she worked as the female training officer, was put on the night shift, and was assigned to the women's annex. See Memo. ¶ 18, at 7 (asserting these facts)(citing Sinfuego Depo. Doc. 122-1 at 154:9-158:l).[43] Sinfuego had seniority over twenty-nine people. See Response ¶ 11 (iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:23).[44] "Seniority was thrown [out] the window," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:21-22);[45] Sinfuego "was made an example," Response ¶ 11 (iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:25), [46]and treated like a "leper," Response ¶ 11 (iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:24-25).[47] Sinfuego joined a night shift with new people and could not choose her shift wherever she was needed. See Response ¶ 11 (iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:1-25; Id. at 295:3-15).[48] Billy believed that "[p]lacing someone on midnight shift and stripping them of duties is retaliatory" and that management retaliated against Sinfuego. See Response ¶ 11 (vi), at 6 (asserting this fact)(citing Billy Depo. Doc. 125-11 at 166:7-14; id. at 170:25-171:3; Id. at 171:8).[49] Pyle was not involved in determining Sinfuego's shift assignments or role in S.O.R.T. See Memo. ¶ 19, at 7-8 (asserting this fact)(citing Pyle Aff ¶ 4, at 1; Sandoval Depo. Doc. 122-2 at 26:20-27:7).[50] Sinfuego signed a petition to Sandoval about shift bidding, see Response ¶ 14(iii) at 8 (asserting this fact)(citing Petition from Curry Officers to Sandoval at l), [51] but Sinfuego did not discuss her union activities with Sandoval and Sandoval had no knowledge about such activities until the lawsuit, see Memo. ¶ 19, at 7 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 134:23-135:5; Sandoval Depo. Doc. 122-2 at 16:14-24).[52] On September 4, 2013, Sandoval and Pyle signed a performance evaluation, on which Sinfuego received at least a "3" (Satisfactory) in every category and a total of "3.625." See Memo. ¶ 20, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 167:2-169:11; Id. at 171:5-10; Performance Evaluation at 1-5 (dated Sept. 4, 2013), filed June 12, 2018 (Doc. 122-2)); Response ¶ 1, at 1 (admitting this fact).

         On November 15, 2013, Sinfuego informed Garcia about a conversation with Curry Officer Dustin Hughes that occurred during the night of November 12 and 13, 2013, and before Curry Officers Janie Yearley and Dustin Davis. See Memo. ¶ 21, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 171:11-172:23).[53] Garcia requested that Sinfuego make a statement about the conversation, which Sinfuego did. See Response, ¶ 15(i), at 8 (asserting this fact)(citing Statement from Rene Garcia at 1 (dated Nov. 15, 2013), filed June 27, 2018 (Doc. 125-15)).[54] See also Statement of Amanda Sinfuego at 1 (dated Nov. 15, 2013), filed June 12, 2018 (Doc. 122-2). Yearley gave a statement about the conversation on November 20, 2013. See Response ¶ 15(ii), at 8 (asserting this fact)(citing Statement of Janie Yearley at 1 (dated Nov. 20, 2013), filed June 27, 2018 (Doc. 125-16)).[55] The conversation began when Sinfuego stated that the restroom was filthy and that "there was pubes on the toilet seat," and the discussion turned to Hughes commenting on his personal grooming habits and sexual preferences. See Memo. ¶ 22, at 8 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1 and citing Sinfuego Depo. Doc. 122-1 at 175:16-24). See Response ¶ 1, at 1 (admitting this fact). Hughes stated: "Well, it can't be my pubes. I keep my balls, gooch and asshole shaved." Memo. ¶ 22, at 7 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1). See Response ¶ 1, at 1 (admitting this fact).

         Responding to the report, Lindsay Schwebke, the Curry County Personnel Coordinator, interviewed Sinfuego, Hughes, Yearley, and Davis. See Memo. ¶ 23, at 8-9 (asserting this fact).[56] Hughes told Schwebke in a December 3, 2013, interview that, during the conversation on November 13, 2013, Sinfuego brought up "porn stars." Memo. ¶ 24, at 9 (asserting this fact)(quoting Interview of Dustin Hughes at 1-2 (dated Dec. 3, 2013), filed June 12, 2018 (Doc. 122-3)).[57] In a statement, Yearley commented: "Officer Hughes was bragging to Officer Davis about 'bleaching his [anus]' Officer Sinfuego said whoa that's to [sic] much information." Response ¶ 15(ii), at 8 (asserting this fact)(quoting Statement of Janie Yearley at l).[58] Sinfuego, in an interview with Schwebke on December 4, 2013, admitted that she asked, in response to Hughes statements about his grooming habits: "How porn stars do it?" Memo. ¶ 25, at 9 (asserting this fact)(quoting Interview of Amanda Sinfuego at 6 (taken Dec. 4, 2013), filed June 12, 2018 (Doc. 122-3) and citing Sinfuego Depo. Doc. 122-1 at 204:25-207:19).[59] Sinfuego asked the question in a "sarcastic manner." Response ¶ 17(v), at 9 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 220:8-12).[60] Sinfuego did not start or encourage the conversation, see Response ¶ 17(i), (iv) (asserting this fact)(citing Posttermination Hearing Reporter's Record at 89:24-25 (dated Feb. 19, 2016), filed June 27, 2018 (Doc. 125-14)("Posttermination Hearing Reporter's Record Doc. 125-14"); id, at 90:1; Id. at 95:5-18), [61] and the conversation did not interfere with her co-workers' work, see Response ¶ 17(iii) (asserting this fact)(citing Posttermination Hearing Reporter's Record Doc. 125-14 at 89:15-17).[62]

         Hughes also informed Schwebke that Sinfuego sent Snapchat[63] images with "pictures of people drawing like [penises and balls] and stuff on it" during a "Toxic Talk"[64] employee training. See Memo. ¶ 23, at 9 (asserting this fact)(citing Interview of Dustin Hughes at 2-3 (taken Nov. 26, 2013), filed June 12, 2018 (Doc. 122-2); Sinfuego Depo. Doc. 122-1 at 210:5-7).[65] Sinfuego admitted that she took a picture of Davis and edited the picture to "draw him where [his] chair looked like a penis," and that doing so was not appropriate or acceptable. Memo. ¶ 25, at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 207:20-212:18).[66] Davis laughed at the picture, and Sinfuego shared the picture with "two other co-workers who laughed." Response ¶ 16(i), at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 231:18-22; Id. at 299:1-21).[67]

         Schwebke reported the investigation to Sandoval. See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke (dated Dec. 16, 2013), filed June 12, 2018 (Doc. 122-3)).[68] Schwebke explained that Sinfuego admitted to the conversation with Hughes, including stating that '"there were pubes' and 'a really long pubic hair, '" to sending the picture of Davis, and to "show[ing] [Davis] different people and the teacher, just drawing penises and stuff like that." See Memo. ¶26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke at 2).[69] Schwebke's report did not discuss Yearley's statement. See Response ¶ 26(iii), at 10 (asserting this fact)(citing Statement of Janie Yearley at l).[70] After reviewing the report, Sandoval sent, on December 17, 2013, Sinfuego a "Letter of Intent to Terminate Employment with Curry County." See Memo. ¶ 27, at 10 (asserting this fact)(citing Letter of Intent to Terminate Employment with Curry County from Tori Sandoval to Lindsay Schwebke at 1 (sent Dec. 17, 2013), filed June 12, 2018 (Doc. 122-3)("Letter of Intent to Terminate")).[71] In the letter, Sandoval wrote:

After reviewing all of the facts and testimonies of these incidents and due to the seriousness of your actions, I am recommending you to be terminated from employment with Curry County. These conversations and actions are considered Sexual Harassment and will not be tolerated. You attended a Workplace Harassment Training on February 22, 2013 and signed an acknowledgment form affirming your awareness of Curry County's zero tolerance policy for Workplace Harassment.

Memo. ¶ 27, at 10 (asserting this fact)(quoting Letter of Intent to Terminate at 2).[72] Sandoval notified Sinfuego that Schwebke would contact her about a pre-determination hearing. See Memo. ¶27, at 10 (citing Letter of Intent to Terminate at 2-3). Sandoval based the letter solely on Schwebke's report, see Response ¶20(i), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:9-17), [73] and used a form letter, see Response ¶20(ii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:20-22).[74] Curry County also terminated Hughes' employment on December 17, 2013. See Memo. ¶28, at 10-11 (asserting this fact)(citing Termination of Probationary Employee at 1 (Dec. 17, 2013), filed June 12, 2018 (Doc. 122-2)); Response ¶ 1, at 1 (admitting this fact).

         On December 30, 2013, Sinfuego had a predetermination hearing with Pyle. See Memo. ¶29, at 11 (asserting this fact)(Pre-Determination Hearing at 1, filed June 12, 2018 (Doc. 122- 3)).[75] Sinfuego admitted that she engaged in the alleged behavior; she asked Hughes: "Do you mean like how porn stars do it?," Memo. ¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 10:14-21 and citing Sinfuego Depo. Doc. 122-2 at 234:6-235:23), and she "took a picture of another officer, who is a friend" and "drew penises in the picture," Memo. ¶¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 15:9-12 and citing Sinfuego Depo. Doc. 122-2 at 235:24-237:24).[76] Sinfuego acknowledged such behavior was inappropriate, see Memo. ¶¶ 29-30, at 11 (asserting this fact)(citing Pre-Determination Hearing at 10:22-24; Id. at 16:15-16), [77] although she did not admit that she violated the Curry County sexual harassment policy, see Response ¶ 21(i) (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 57:20-25).[78] Sinfuego admitted that she had worked at Curry Detention for three years and had attended two training sessions in the last year. See Memo. ¶ 31, at 11 (asserting this fact)(citing Pre-Determination Hearing at 24:3-13).[79]

         On January 7, 2014, Pyle terminated Sinfuego's employment. See Memo. ¶ 32, at 11-12 (asserting this fact)(citing Letter from Lance Pyle to Amanda Sinfuego at 4 (dated Jan. 7, 2014), filed June 12, 2018 (Doc. 122-4); Sinfuego Depo. Doc. 122-1 at 241:15-25; Id. at 243:14-245:7).[80] Pyle concluded:

I have reviewed the Curry County Personnel Policy #10-03, Employee Discipline, and you have violated several sections including:
• Failure to follow County Policies, Rules or Regulations
• Non-cooperation by an employee with fellow employees or other personal conduct which substantially interferes with the performance of his/her or another employee's work
• Conduct unbecoming of an employee of Curry County
• Violation of Curry County Workplace Harassment Policy
#a. Oral or written sexual statements, comments, jokes, questions or innuendos
#b. Display of sexually oriented visual items such as calendars, cartoons, photos or posters
#k. Discussing their sexual preference, sexual relationships or even sexual matters seen on TV, YouTube, movies, or other formats including books and magazines

Memo. ¶ 32, at 12 (asserting this fact)(quoting Letter from Lance Pyle to Amanda Sinfuego at 3-4).[81] Curry County Personnel Policy #10-3 entitled Sinfuego to a post-disciplinary hearing before a neutral, third party and to a District Court of the State of New Mexico's review of that hearing's decision. See Memo. ¶ 33, at 12 (asserting this fact)(citing Curry County Personnel Policy # 10-03 at 28-32 (dated Dec. 7, 2010), filed June 12, 2018 (Doc. 122-4)); Response ¶ 1, at 1 (admitting this fact). Sinfuego had a first pre-disciplinary hearing on February 19, 2014, with Anne Behl, a Human Resources Consultant. See Memo. ¶ 12 n.5; Post-Disciplinary Hearing Decision - Amanda Sinfuego at 1 (dated March 4, 2014), filed June 27, 2018 (Doc. 125-17)).[82] Behl determined that the November 12-13, 2013, conversation with Hughes did not constitute sexual harassment under the Curry County Personnel Policy. See Response ¶ 24(iv), at 13 (citing Post-Disciplinary Hearing Decision - Amanda Sinfuego at 2).[83] When reviewing this hearing, the district court discovered that the tapes of the hearing were inaudible and remanded the matter for another determination. See Memo, at 12 n.5.[84]

         Sinfuego had her second post-disciplinary hearing on February 19, 2016, before Bruce Swingle. See Memo. ¶ 34, at 12-13 (asserting this fact)(citing Posttermination Hearing at 1 (taken Feb. 19, 2016), filed June 12, 2018 (Doc. 122-4)("Posttermination Hearing Reporter's Record Doc. 122-4").[85] At the hearing, Sinfuego acknowledged that "asking someone if they groomed their private parts the way porn stars do is a sexual question," see Memo ¶ 34, at 2 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 100:13-15 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 100:16), [86] and "taking a picture and then drawing a penis on it and sending it to colleagues is displaying a sexually oriented visual item," see Memo ¶ 34, at 12 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 102:2-5 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 102:6).[87] Swingle affirmed Sinfuego's termination and, in his Findings of Fact and Conclusions of Law (dated March 4, 2016), filed June 12, 2018 (Doc. 122-4), Swingle stated his conclusions from the hearing:

After considering the evidence[, ] the credibility of the witnesses, and the severity of Ms. Sinfuego's infractions while on duty, e.g., engaging in conversations of a sexual nature for possibly up to an hour during her shift, which prevented staff from performing their jobs; withholding or distorting relevant facts during an administrative investigation; engaging in actions that have the effect of substantially interfering with an individual's work performance, or creating an intimidating, hostile or offensive working environment, both while on shift and during a County sponsored training; and distributing pictures of a "sexual nature" to at least three coworkers, is clearly conduct unbecoming a County employee, violates the County's Workplace Harassment Policy and substantially interferes with the performance of employee duties; therefore, ample basis exists for affirmance of the termination of Ms. Sinfuego's employment with the County.

See Memo. ¶ 35, at 13 (asserting this fact)(quoting Findings of Fact and Conclusions of Law at 5).[88] On Sinfuego's appeal, the Ninth Judicial District Court of the State of New Mexico upheld Swingle's determination, concluding: "The decision was based on substantial evidence, was within the Hearing Officer's authority, and in accordance with the law." See Memo. ¶ 36, at 13 (asserting this factXSinfuego v. Bd. of Cty. Comm'rs for Curry Cty., D-905-CV-206-112, Decision & Order on Writ of Certiorari at 5 (Ninth Judicial District Court, County of Curry, State of New Mexico), filed in state court June 13, 2017, filed in federal court June 12, 2018 (Doc. 122-4)); Response ¶ 1, at 1 (admitting this fact).

         Sinfuego was a hard worker. See Response ¶ 22(iii) (asserting this fact)(citing Deposition of Tori Sandoval at 11:13-16 (taken April 19, 2018), filed June 27, 2018 (Doc. 125-12)("Sandoval Depo. Doc. 125-12")), [89] and Pyle held grudges, see Response ¶ 21(iv), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11, at 170:1-21).[90] Sinfuego observed sexually oriented items at work, see Response ¶ 18, at 10 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 293:20-25), [91] and she engaged in "crude humor" "to get through the day," see Response ¶ 18(iv), at 10 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 240:19-20 and citing Sinfuego Depo. Doc. 125-7 at 240:12-25; Id. at 241:1-2; Id. at 241:5-6).[92] Curry Detention employees heard bad language while on the job, see Response ¶ 20(iv), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12, at 53:21-25; Id. at 54:l-9), [93] and banter like that in which Sinfuego participated was common, see Response ¶21(iii) (asserting this fact)(citing Billy Depo. Doc. 125-11 at 129:7-10).[94]Hughes came to work intoxicated, grabbed a female officer, and swore at Sinfuego and co-workers. See Response ¶ 27(vi), at 14-15 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 261:24-25; id. at 262:7-14). Sandoval knew that Borjas had a relationship with an inmate, see Response ¶27(xi), at 15 (asserting this fact)(citing Sandoval. Depo. Doc. 125-12 at 56:2-7).[95] No. one complained that Sinfuego's conduct created an offensive or hostile work environment, see Response ¶ 19(iv), at 10 (citing Sandoval Depo. Doc. 125-12 at 52:1-3; Id. at 42:6-10), [96] or considered her conduct as creating a "hostile, intimidating or offensive work environment," Response ¶ 20(iii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:12-16).[97]When Pyle asked Sinfuego what she thought a fair punishment would be, she replied: "[S]ince there is no prior sexual harassment charges against me, no one has put any harassment charges against me, written, anything, where I have done anything in poor conduct prior to this, I believe it should be a write-up." Memo. ¶ 31, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 23:10-14).[98] Curry County re-hired Richard Benavidez as a lieutenant and, after hiring him, discovered that, during his first period working at Curry Detention, he had stored pornographic material in his locker. See Response ¶ 23(iv), at 12 (asserting that Curry County hired Benavidez)(citing Sandoval Depo. Doc. 125-12 at 59:10-25); Reply at 8 (asserting that Curry County learned about the pornographic material after hiring Benavidez).[99] "One question or comment made during someone else's lengthy discussion of sexual hygiene and activity does not meet the definition of sexual harassment in the Curry County Personnel Policy." Response ¶ 21(i), at 11 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7, at 300:7-12; Billy Depo. Doc. 125-11 at 167:18-25; Id. at 168:2-3; Id. at 168:7-8).[100] Billy believed that management should have told Sinfuego "we don't do that" and not written her up for the behavior. See Response ¶ 21 (hi), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11 at 129:11-24).[101] Curry County's policies prohibited retaliation for reporting harassment, and retaliation for such reports "was a ground for disciplinary action." Response ¶ 24(iii), at 13 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:22-25; Id. at 51:1-7).[102]

         Sinfuego believed "As long as you were good with [Sandoval], as long as you were good with certain people, you can get away scot-free." Response ¶ 27(vii) (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 265:10-13).[103] Curry Detention had crowding and understaffing problems. See Response ¶ 27(x), at 15 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 18:8-21).[104] Everyone knew about the bad conditions at the jail and complained about them. See Memo. ¶ 38, at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 81:13-89:9; Id. at 272:18-274:24).[105] An anonymous letter was sent asking "why are things not getting done." Response ¶27(iv), at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 90:15-24).[106]Sinfuego did not speak with Sandoval about safety and sanitation issues at Curry Detention; Sinfuego spoke with Pyle once, at the December 3, 2012, meeting about conditions at Curry Detention; and no sergeants with whom Sinfuego discussed such matters passed Sinfuego's concerns on to Sandoval or to Pyle. See Memo. ¶ 39, at 15 (asserting this fact)(citing Sinfeugo Depo. Doc. 122-2 at 89:10-94:5).[107] Sinfuego did not speak to Billy about conditions at Curry Detention. See Memo. ¶ 39, at 14 (asserting this fact)(citing Billy Depo. Doc. 122-2 at38:518; id. at39:4-14).[108]

         PROCEDURAL BACKGROUND

         Sinfuego filed suit in the United States District Court for the District of New Mexico, alleging: (i) in Count I, that pursuant to 42 U.S.C. § 1983, the Defendants violated her First Amendment freedom-of-speech rights; (ii) in Count II, that pursuant to § 1983, the Defendants violated her First Amendment right to freely associate; (iii) in Count III, that pursuant to § 1983, the Defendants violated her First Amendment right to petition for the redress of grievances; and (iv) in Count IV, that the Defendants retaliated against her in violation of the NMWPA. See Civil Complaint for Violation of Civil Rights and the Whistleblower Protection Act, Sinfuego v. Curry Cty. Bd. of Cty. Comm'rs. No. CIV 15-0563 JB/GF, filed July 1, 2015 (Doc. l)("Complaint").

         Sinfuego and the Defendants agreed to voluntarily dismiss Sandoval from the case on September 19, 2016. See Stipulated Voluntary Dismissal with Prejudice of all Claims against Defendant Tori Sandoval, filed September 19, 2016 (Doc. 53). The parties also stipulated to dismissal of Sinfuego's claims against Pyle in his official capacity. See Stipulation of Voluntary Dismissal of Claims Against Defendant Lance Pyle in His Official Capacity at 1, filed November 4, 2016 (Doc. 65). Pyle moved for summary judgment and to dismiss the case on qualified-immunity grounds on November 28, 2016. See Defendant Lance Pyle's Motion for Summary Judgment and Qualified Immunity, filed November 28, 2016 (Doc. 69)("Summary Judgment Motion"). Pyle argued that he was entitled to summary judgment, because Sinfuego failed to demonstrate that he violated her First Amendment rights, because his only involvement in her termination was to confirm the termination recommendation, and because the conversation between himself and Sinfuego pertaining to her union activity took place over one year before her termination. See Summary Judgment Motion at 8-9. On February 14, 2017, the Honorable Carmen E. Garza, United States Magistrate Judge for the District of New Mexico, granted the Summary Judgment Motion and dismissed with prejudice all claims against Pyle in his individual capacity. See Memorandum Opinion and Order at 1, 29, 2017 WL 3503380 at *1, *13, filed February 14, 2017 (Doc. 85)("First MOO").

         1.The Motion and the Memo.

         On June 12, 2018, Curry County moved for summary judgment, requesting that the Court dismiss with prejudice all claims Sinfuego brings. See Motion at 1. As grounds for its Motion for Summary Judgment, Curry County states that Sinfuego "cannot raise any genuine issue of material fact on any of her First Amendment retaliation claims" or on her NMWPA claim. Motion at 1-2. Pursuant to D.N.M.LR-Civ. 56.1(b), Curry County files a written memorandum to support its motion. See Memo, at 1.

         Regarding Sinfuego's § 1983 claims, Curry County asserts that they all fail as a matter of law. See Memo, at 15-16. Curry County cites the test developed from Garcetti v. Ceballos, 547 U.S. 410, 421-26 (2006), and Pickering v. Bd. of Educ. of Township High Sch. Dist. 205. 391 U.S. 563, 566-67 (1968)("Pickering")(the "Garcetti/Pickering test"), which the United States Court of Appeals for the Tenth Circuit adopted for First Amendment retaliation claims. See Memo, at 16. Curry County argues that Sinfuego's claims fail under the Garcetti/Pickering test, as her allegedly protected-speech events are not matters of public concern. See Memo, at 17-19. Specifically, Curry County argues that the December 6, 2012, text message is not de facto protected speech just because it pertains to union activity. See Memo, at 18. Curry County argues that speech is not automatically a matter of public concern because it is union related. See Memo, at 18. Curry County argues that Counts I and III fail, accordingly, as a matter of law. See Memo, at 19.

         Curry County then argues that Sinfuego's claims also fail under the Garcetti/Pickering test's fourth step. See Memo, at 19-23. The Garcetti/Pickering test's fourth step requires that the plaintiff show that the allegedly protected activity was a "substantial factor or motivating factor in a detrimental employment decision." Memo, at 19 (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007)). In a footnote, Curry County opposes Sinfuego's description of any action short of termination as an "adverse employment action." Memo, at 20 n.8. Curry County argues that, while Sandoval allegedly retaliated against Sinfuego, Sandoval could not have known of Sinfuego's allegedly protected activities - the December 6, 2012, text message - at the time that she moved to terminate Sinfuego. See Memo, at 20. Regarding Sinfuego's theory of retaliation based on her expressed concerns about the facility's conditions, Curry County argues that Sinfuego has not shown any evidence that Pyle or Sandoval were aware of her statements. See Memo, at 20. Finally, Curry County points to the more than one-year gap between Sinfuego's allegedly protected activities in December, 2012, and her termination in January, 2014, as evidence that retaliation did not motivate her termination. See Memo, at 21-22. Because of these considerations, Curry County argues that Counts I through III fail as a matter of law. See Memo, at 23.

         Turning to the Garcetti/Pickering test's fifth step, Curry County argues that the Court should grant summary judgment under each of Sinfuego's First Amendment retaliation claims. See Memo, at 23-25. Curry County argues that the Garcetti/Pickering test's fifth step puts the burden of proof on the defendant, who must show that it would have reached the same employment decision in the protected activity's absence. See Memo, at 23 (citing Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2014)). Curry County argues that Sinfuego "does not dispute that she engaged in the misconduct for which she was terminated." Memo, at 23. Curry County quotes Magistrate Judge Garza's First MOO, which states: "It was entirely appropriate for [Curry County] to take action against Plaintiff once they determined that she violated the sexual harassment policy." Memo, at 24. Curry County argues that, because Sinfuego's admitted misconduct alone justifies the termination of her employment, the Court should grant summary judgment on Counts I through III. See Memo, at 24.

         Curry County concludes its argument pertaining to Sinfuego's First Amendment claims by stating that Sinfuego's claims fail to establish municipal liability. See Memo, at 25-27. According to Curry County, the Tenth Circuit, in Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), establishes a two-prong test for municipal liability; the plaintiff must show: (i) "the existence of a municipal policy or custom" and (ii) "a direct causal link between the policy or custom and the injury alleged." Memo, at 25. As to the first prong, Curry County argues that Sinfuego has never identified any "formal regulation or policy" of "retaliation against individuals involved in collective bargaining." Memo, at 26. Further, Curry County states that Sinfuego cannot establish through evidence that there are sufficient incidents to constitute a "custom," which would be identified through "persistent and widespread . . . practices of [local government] officials." Memo, at 26 (internal quotation marks omitted)(quoting Lankford v. City of Hob art, 73 F.3d 283, 286 (10th Cir. 1996)). Curry County argues that, at most, Sinfuego can point to her own termination and may potentially argue that Billy's termination resulted from Curry County's retaliation. See Memo, at 26. Curry County argues that, even if Curry County concedes these two incidents, they do not rise to the level of a "widespread practice or custom." Memo, at 27. Curry County acknowledges that the Tenth Circuit has not set a threshold for the number of incidents to prove the existence of a custom, but it points to other Courts of Appeals that have noted, at a minimum, that two incidents are not sufficient. See Memo, at 27.

         Regarding Count IV of Sinfuego's Complaint, Curry County also argues that Sinfuego cannot, as a matter of law, prevail on her NMWPA argument. See Memo, at 27-34. According to Curry County, Count IV alleges that Curry County violated the NMWPA when it terminated Sinfuego's employment in retaliation for her whistleblowing communications. See Memo, at 27. Curry County argues that Sinfuego cannot show that any of her union-related activities constitute "whistleblowing activities," that, when the decision was made to terminate Sinfuego, Sandoval and Pyle were aware of any of Sinfuego's concerns regarding conditions at Curry Detention, and that Curry County had a legitimate, non-retaliatory reason to terminate Sinfuego's employment. See Memo, at 27-34.

         2.The Response.

         Sinfuego responded to the Motion on June 27, 2018. See Response at 1. Sinfuego argues that there are outstanding issues of material fact that preclude granting the Motion. See Response at 16-27. Specifically, Sinfuego argues that her "unionization efforts and her immediate demotion after Mr. Billy was terminated present a question of fact for the jury." Response at 17.

         Regarding her unionization efforts, Sinfuego argues that, contrary to Curry County's assertions, her speech activities were a matter of public concern. See Response at 19-20. Sinfuego specifically points to her December 6, 2012, text message as protected speech, as "informing other officers that the County Manager was attempting to illegally intimidate and retaliate against the Detention officers is a matter of public concern and protected by law." Response at 19. Sinfuego cites the Tenth Circuit, which states that "[t]he First Amendment protects the right of a public employee to join and participate in a labor union." Response at 20 (quoting Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013)).

         As to Curry County's argument that Curry County could not have retaliated against Sinfuego, because Sandoval was unaware of Sinfuego's union-related activities, Sinfuego argues that Sandoval worked in close proximity to Pyle, and it would not, therefore, be possible for Sandoval to have been unaware of Sinfuego's activities. See Response at 21. Sinfuego states that Sandoval was Pyle's "snitch" against Billy and that Sandoval was rewarded with Billy's job after Billy was terminated. See Response at 21. Regarding Sinfuego's expression of concerns at Curry Detention, Sinfuego argues that she voiced her concerns to Pyle at the December 3, 2012, meeting. See Response at 21-22. Based on these facts, Sinfuego argues that Pyle and Sandoval knew of her concerns about conditions at Curry Detention. See Response at 21.

         Regarding Curry County's argument that the amount of time between the December 6, 2012, text message and her eventual termination in January, 2014, counsels against a retaliatory motive on Curry County's part, Sinfuego argues that she suffered retaliatory behavior well before her termination. See Response at 22. Sinfuego highlights that she was moved to the "midnight" shift, that she had her seniority and other duties "stripped" from her, and that she was removed from S.O.R.T. as examples of the retaliation that she suffered in response to her union-related activities. See Response at 22.

         As to Curry County's argument that Sinfuego's termination was appropriate because she violated the Curry County sexual harassment policy, Sinfuego argues that her actions do not amount to violations of the Curry County sexual harassment policy. See Response at 24-25. Sinfuego disputes Curry County's allegation that she "admitted on multiple occasions that she asked a male coworker whether he groomed his genitals 'like how porn stars do it.'" Response at 25 (quoting Memo, at 23). Sinfuego argues that "one comment or question made during someone else's lengthy discussion of sexual hygiene [as] an activity is not sexual harassment." Response at 25. Sinfuego argues that her comment did not "interfere with anyone's ability to do their job[s]" and that her action does not, therefore, rise to the level of sexual harassment. Response at 25. Similarly, Sinfuego argues that her actions at the "Toxic Talk" training did not create an "intimidating work environment" and that none of her coworkers complained about the picture message that she sent during the "Toxic Talk" training. Response at 25. Sinfuego then highlights other incidents of sexual conduct to argue that Curry County only selectively enforces the Curry County sexual harassment policy. See Response at 27-8.

         3.The Reply.

         Curry County replied on July 13, 2018. See Reply at 1. Curry County argues that Sinfuego's behavior warranted termination, because she violated the Curry County sexual harassment policy when she participated in an inappropriate workplace conversation and when she disseminated images depicting penises. See Reply at 1. Curry County reiterates its argument that neither Sinfuego's participation in the December 3, 2012, meeting, nor the December 6, 2012, text message, constitute matters of public concern, and both fall short of the Garcetti/Pickering test's requirement. See Reply at 12-13. Curry County contends that Sinfuego's argument that Pyle engaged in "illegal" behavior when he offered to meet with individual officers regarding the formation of a union was, at best, a reckless statement undeserving of First Amendment protection. Reply at 13. Curry County argues that New Mexico law does not prohibit Pyle from offering to meet with Curry Officers, and that Sinfuego's text message was therefore a "deliberately or recklessly false statement." Reply at 14.

         Curry County then argues that Sinfuego has failed to show that either her participation in the December 3, 2012, meeting or her sending the December 6, 2012, text message was a "substantial" or "motivating" factor in her termination. Reply at 14 (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d at 1203). Curry County cites the Sandoval Deposition, arguing that Sandoval stated that she was unaware of Sinfuego's union-related activities until Sinfuego initiated the current suit. See Reply at 14-15. Further, Curry County argues that, if Sinfuego cannot prove Sandoval's knowledge, Sinfuego also cannot prove her contention that she began to suffer adverse actions at work shortly after the December, 2012, events. See Reply at 15.

         Additionally, Curry County reasserts its contention that Sinfuego would have been terminated for her misconduct, regardless of any alleged retaliatory motive on Curry County's part. See Reply at 16. Curry County reiterates Sinfuego's acknowledgement that she took part in an inappropriate workplace conversation, and her admission that she drew penises on a picture and then sent it via Snapchat to three coworkers. See Reply at 17. Regarding Sinfuego's contention that her actions do not rise to the level of "actionable" sexual harassment, Curry County cites the Tenth Circuit, which has asserted that employers have an "interest in eliminating the appearance of impropriety" and do not have to forego taking action until the misconduct has risen to the level of "actionable." Reply at 17 (citing Trant v. Oklahoma, 754 F.3d at 1167). Finally, as to Sinfuego's allegations in her Response pertaining to other alleged incidents of sexual harassment, Curry County argues that there is zero evidence that Pyle or Sandoval were aware of any of the other incidents to which Sinfuego alludes. See Reply at 19. Additionally, Curry County asserts that Sinfuego has failed to establish the facts required for municipal liability. See Reply at 19. Curry County asserts that Sinfuego has not identified a formal Curry County policy, nor has she established a pattern that could conceivably be viewed as a "custom" to establish municipal liability. Reply at 19-20.

         As to Sinfuego's NMWPA claim, Curry County reiterates that she cannot succeed as a matter of law. See Reply at 20. Regarding the December 6, 2012, text message, Curry County asserts that the allegation in the December 6, 2012, text message is unfounded, as Sinfuego has presented no evidence to support an inference that Pyle was offering to meet with officers for an unlawful purpose. See Reply at 21. Curry County argues that, because Sinfuego lacks evidence that Pyle was attempting to violate the law, her message should not be afforded "whistleblower" protection. Reply at 21. Curry County further argues that Sinfuego does not establish any "causal connection" between the alleged "whistleblowing" activity and her employment termination. Reply at 21. Curry County reiterates that Sinfuego has not presented any evidence to show that Sandoval, who Sinfuego alleges carried out the retaliatory behavior, had any knowledge of Sinfuego's alleged "whistleblowing" activities. Reply at 21. Finally, Curry County asserts that it has proven Sinfuego engaged in behavior that warrants her employment termination, as Sinfuego admitted to engaging in misconduct in the workplace. See Reply at 22. Curry County asserts that, because Curry County has proven Sinfuego's misconduct, it should prevail on its affirmative defense. See Reply at 22.

         4.The Hearing.

         The Court held a hearing on the Motion on September 25, 2018. See Draft Transcript of Hearing at 1 (taken September 25, 2018)(Court)("Tr.").[109] The Court expressed its reservations that, because of the Garcetti/Pickering test, Sinfuego would have difficulty prevailing on her First-Amendment claims. Tr. at 3:2-6 (Court). Curry County summarized its understanding of the Garcetti/Pickering test. See Tr. at 11:1-12:2 (Smith). Curry County stated that Sinfuego's First Amendment retaliation claims fail at the Garcetti/Pickering test's second prong, as she cannot demonstrate that her alleged speech activities are matters of public concern. See Tr. at 12:22-25 (Smith). Curry County cited Torres v. Pueblo Board of County Commissioners, 229 F.3d 1165, 2000 WL 1346347 (10th Cir. 2000)(unpublished table opinion), in which the Tenth Circuit concluded that union-related speech is not a public concern merely because it touches union activity. See Tr. at 14:15-23 (Smith).

         Curry County next argued that Sinfuego's claims fail, because she cannot prove that her allegedly protected activity was a substantial or motivating factor in a detrimental employment decision. See Tr. at 15:3-11 (Smith). Curry County asserted that Sinfuego cannot demonstrate that Sandoval had any knowledge of Sinfuego's union-related activity when Sandoval decided to terminate Sinfuego's employment. See Tr. at 16:14-16 (Smith). Curry County pointed to the Sandoval Deposition, in which Sandoval was asked "a series of questions by plaintiff['s] counsel in which she had ... no knowledge of any union related activities that Ms. [Sinfuego] was engaged in ... prior to the lawsuit being filed." Tr. at 16:16-22 (Smith). Further, Curry County acknowledged that Pyle had knowledge of Sinfuego's union-related activities, but that no evidence suggests that, before the termination, he was involved in any employment decisions regarding Sinfuego. See Tr. at 17:4-10 (Smith). Curry County argued that, as to Sinfuego's termination, the significant gap in time between Sinfuego's union-related activities and her termination precludes an inference that she was terminated for her union-related activities. See Tr. at 18:11-19 (Smith).

         Regarding Sinfuego's allegations that Curry County terminated Sinfuego for activities in which other employees had engaged without suffering adverse employment decisions, Curry County attacked Sinfuego's evidence as hearsay and inadmissible. See Tr. at 19:4-16 (Smith). Further, Curry County asserted that Sinfuego cannot establish that Pyle or Sandoval had any knowledge of these alleged events. See Tr. at 19:20-20:6 (Smith).

         As to Sinfuego's theory of retaliation based on the expression of her concerns regarding conditions at the Curry Detention, Curry County asserted that Sinfuego admitted in the Sinfuego Deposition that she had addressed her concerns to her immediate supervisors, but that she did not express these concerns either to Pyle or to Sandoval. See Tr. at 21:5-19 (Smith). According to Curry County, Sinfuego only can speculate whether her concerns were passed to Pyle or to Sandoval, and speculation, Curry County noted, is not sufficient to defeat summary judgment. See Tr. at 21:19-22:6 (Smith). Curry County asserted that Sinfuego lacks any evidence that Pyle or Sandoval moved to terminate her employment based on knowledge that Sinfuego had expressed these concerns. See Tr. at 22:3-6 (Smith).

         Finally, Curry County argued that it can show by a preponderance of the evidence that it would have made the same adverse employment decision regardless of any alleged union-related activities, because Sinfuego engaged in behavior that violated the Curry County sexual harassment policy. See Tr. at 23:1-7 (Smith). Curry County argued that Sinfuego's contention that her actions do not rise to an "actionable level" fail, as the Tenth Circuit has held that "boorish behavior in the workplace can justify termination]." Tr. at 23:9-10 (Smith). Regarding the theory of municipal liability, Curry County asserted that Sinfuego cannot establish that there was a custom or policy of Curry County's to retaliate against employees who engaged in union-related activities. See Tr. at 25:20-23 (Smith).

         Sinfuego responded, referencing Billy v. Curry County Board of Commissioners, in which Bobbie Sandoval, a Curry County Commissioner, testified that in December, 2012, that he was aware that Pyle was "upset with Mrs. Sinfuego's activities." Tr. at 28:21-29:3 (Dixon). Further, Sinfuego pointed to the fact that Curry County fired Billy at the same time that Curry County moved Sinfuego to the midnight shift, despite Sinfuego having more seniority than a majority of her coworkers. See Tr. at 29:10-13 (Dixon).

         Sinfuego asserted that, on the night of November 12, 2012, after exiting the restroom at Curry Detention, she exclaimed that the facility was dirty and inquired as to pubic hair on the toilet. See Tr. at 32:11-13 (Dixon). Then, according to Sinfuego, Hughes launched into a "rather lengthy discussion regarding his sexual hygiene," and Sinfuego states that she replied "that is too much information," and, according to Sinfuego, Yearley's statement confirms this conversation. Tr. at 31:16-18 (Dixon). Sinfuego then asserted that Curry County sought to justify its retaliatory behavior by citing violations of the Curry County sexual harassment policy, yet, according to Sinfuego, Curry County selectively enforced the Curry County sexual harassment policy. See Tr. at 33:14-18 (Dixon). Sinfuego argued that Curry County's action in terminating her is not in line with Title VII of the Civil Rights Act of 1964's, Pub. L. 88-352, 78 Stat. 241 (1964)("Title VII"), requirements, and that Curry County did not adhere to the Curry County sexual harassment policy when it took adverse employment action against her. See Tr. at 35:1-36:2 (Dixon).

         In addition, Sinfuego asserts that Billy v. Curry County Board of Commissioners' jury findings establish that Curry County engaged in a custom of retaliating against individuals who engaged in union-related activities. See Tr. at 37:3-7 (Dixon). Sinfuego asserts that in Billy v. Curry County Board of Commissioners, the jury found that Curry County retaliated against Billy and terminated him in retaliation for not disciplining Sinfuego after she engaged in her union-related activities. See Tr. at 36:21-24 (Dixon). Sinfuego argued that these findings show that "there are issues of material fact that prevent this matter from being decided on summary judgment." Tr. at 37:5-7 (Dixon).

         In response to Sinfuego's contention that Curry County retaliated against her for engaging in behavior for which it did not punish other employees, Curry County cited the Tenth Circuit case Adams v. American Guarantee and Liability Insurance, 233 F.3d 1242 (10th Cir. 2000), which holds that, "[i]n order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible'' Tr. at 39:5-17 (Smith)(emphasis in original) (quoting Adams v. Am. Guar. & Liab. Ins., 233 F.3d at 1246). Curry County asserted that the majority of Sinfuego's evidence regarding other employees is inadmissible hearsay and that, therefore, Sinfuego cannot use the evidence at the summary judgment stage. See Tr. at 39:16-22 (Smith). Further, according to Curry County, in the Sinfuego Deposition, when asked about other employees and Curry County not disciplining them for engaging in similar behavior, Sinfuego confirmed that she was not aware whether Pyle or Sandoval had knowledge of these allegations, or if either was ever apprised of the behavior. See Tr. at 40:17-41:5 (Dixon).

         Curry County moved to the NMWPA claims, stating: "Here, the plaintiffs [NM]WPA claims are the same as her First Amendment retaliation theories, she alleges that she was retaliated against for participating in union activity and for reporting safety concerns or conditions of the detention center to her lieutenants and sergeants at the detention center." Tr. at 42:22-43:3 (Smith). Specifically, Curry County stated that Sinfuego contends that, when Sinfuego sent the December 6, 2012, text message, she engaged in "reporting a violation of federal or state law," because the New Mexico Public Employees Bargaining Act, N.M. Stat. Ann. §§10-7E-1 to -26, "grants public employees the right to form a union without interference, restraint, or coercion" and Sinfuego was reporting a violation of this right. Tr. at 45:5-7 (Smith)(citing N.M. Stat. Ann. § 10-7E-5). Curry County asserted that Sinfuego's allegations regarding Pyle are without merit, as Pyle's activities do not violate any New Mexico statute, and that Pyle was free to offer to meet individually with officers before the union's certification. See Tr. at 45:18-21 (Smith). Curry County asserted that no union had been certified by December 6, 2012. See Tr. at 46:5-6 (Smith). According to Curry County, Sinfuego, therefore, was not engaged in "reporting or communicating anything that would be a violation of the law." Tr. at 46:20-21 (Smith).

         As to Sinfuego's contention that she suffered retaliation for reporting on unsafe conditions at Curry Detention, Curry County argued that this argument is without merit, because Sinfuego cannot prove that Pyle or Sandoval had any knowledge of her communications, and therefore could not have retaliated against her for something of which they were not aware. See Tr. at 47:6-12 (Smith). In response to the Court's inquiry about the "cat's paw theory, "[110] Tr. at 48:17-18 (Court), Curry County stated that no evidence suggests that Pyle or Sandoval relied on a subordinate's recommendation when terminating Sinfuego. See Tr. at 49:17-50:16 (Smith). Curry County concluded its argument regarding the NMWPA by raising Sinfuego's misconduct as an affirmative defense. See Tr. at 50:7-10 (Smith). Curry County compared this affirmative defense to the Garcetti/Pickering test's fifth step, and the NMWPA explicitly allows for an employer to raise this affirmative defense. See Tr. at 49:19-25 (Smith).

         Sinfuego returned to arguing about the Garcetti/Pickering test's public-concern requirement for her First Amendment retaliation claims. See Tr. at 51:21-23 (Dixon). First, Sinfuego noted that her November 14, 2013, complaint about Hughes' sexual comments touched a public concern. See Tr. at 51:21-52:3 (Dixon). Second, Sinfuego pointed to the December 6, 2012, text message and disputed Curry County's understanding of what § 10-7E-5 allows. See Tr. at 52:4-16 (Dixon). Sinfuego asserted that "Mr. Pyle was against the union and wanted [t]o tell everybody or to attempt to scare everybody into not unionizing." Tr. at 52:14-16 (Dixon). Finally, Sinfuego pointed to the Petition from Curry Officers to Sandoval as another protected activity in which Sinfuego engaged. See Tr. at 51:22-52:4 (Dixon).

         In Curry County's response, it argued that the Petition from Curry Officers to Sandoval is an undated letter that thirty detention officers signed, and does not fall within the protected "whistleblowing activity" that the NMWPA protects, and that this moment was the first instance in which Sinfuego had raised this point in the course of the suit. See Tr. at 53:1-15 (Smith). In addition, Curry County asserted that, before the hearing, Sinfuego had not raised her contention that Curry County retaliated against for her complaint about Hughes' sexual comments. See Tr. at 53:16-19 (Smith).

         LAW REGARDING SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The movant bears the initial burden of 'show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986)("Celotex").

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant "must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment." Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).

Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.)(emphasis added). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence - using any of the materials specified in Rule 56(c) - that would entitle it to a directed verdict if not controverted at trial." Celotex, 477 U.S. at 331 (Brennan J., dissenting)(emphasis in original).[111] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)("Liberty Lobby"). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc., the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-the-implied-warranty-of- merchantability claims. 184 F.Supp.3d 1030, 1075 (D.N.M. 2016)(Browning, J.). The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claims' proximate-causation requirement with mere common knowledge, and the plaintiff provided no expert testimony bolstering its arguments. See 184 F.Supp.3d at 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove "an essential element of the nonmoving party's case," rendering "all other facts immaterial." 184 F.Supp.3d at 1075 (quoting Plustwik v. Voss of Nor. ASA. 2013 WL 1945082, at *1).

         The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l Inc. v. First Affiliated Sec. Inc., 912F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539(10thCir. 1993)("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact... is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Liberty Lobby. 477 U.S. at 256. See Abercrombie v. City of Catoosa. 896F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)("[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried." (citation omitted)(internal quotation marks omitted)).

         Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citingFed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). "In responding to a motion for summary judgment, 'a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. v. Omer. 2008 WL 2309005, at *1 (quoting Conawav v. Smith. 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby. 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder can reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, . . . summary judgment may be granted." Liberty Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States concluded that summary judgment is appropriate where video evidence "quite clearly contradicted" the plaintiffs version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. rindus.l Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted).
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, "[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts." York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir. 2009)(Tymkovich J.)(unpublished), [112] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010)(Browning, J.)(citation omitted), affd, 499 Fed.Appx. 771 (10th Cir. 2012).

         LAW REGARDING 42 U.S.C. § 1983

         Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983. Section 1983 creates only the right of action; and it does not create any substantive rights; substantive rights must come from the Constitution or from a federal statute. See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002)("[S]ection 1983 did not create any substantive rights, but merely enforces existing constitutional and federal statutory rights (internal quotation marks, alteration, and citation omitted)). Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violates deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). The Court has noted:

[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a "person" (4) who acted under color of any statute, ordinance, regulation, custom[, ] or usage, of any State or Territory or the District of Columbia.

Schaefer v. Las Cruces Pub. Sch. Dist. 716 F.Supp.2d 1052, 1063 (D.N.M. 2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)).

         The Supreme Court has clarified that, in alleging a § 1983 action against a government agent in his or her individual capacity, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Consequently, there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675 ("Because vicarious liability is inapplicable to Bivens[v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). Entities cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. Dep't of Soc. Servs. of N. Y., 436 U.S. 658, 689 (1978). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for their employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

         The Tenth Circuit recognizes that non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson. 697 F.3d 1252, 1255 (10th Cir. 2012)(internal quotation marks omitted)(quoting 42 U.S.C. § 1983; Trask v. Franco. 446 F.3d 1036, 1046 (10th Cir. 2006)). The Tenth Circuit also recognizes that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25-26 (D.N.M. Dec. 8. 201 l)(Browning, J.)(citing Dodds v. Richardson. 614 F.3d 1185, 1199 (10th Cir. 2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson states:

Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which "subjects, or causes to be subjected" that plaintiff "to the deprivation of any rights . . . secured by the Constitution . . . ."

Dodds v. Richardson, 614 F.3d at 1199 (quoting 42 U.S.C. § 1983). The Tenth Circuit has noted, however, that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concludes that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d at 1200. More specifically, the Tenth Circuit recognizes that there must be "an 'affirmative' link . . . between the unconstitutional acts by their subordinates and their 'adoption of any plan or policy . . . - express or otherwise - showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). The specific example that the Tenth Circuit used to illustrate this principle is Rizzo v. Goode, where the plaintiff sought to hold a mayor, a police commissioner, and other city officials liable under § 1983 for constitutional violations that unnamed individual police officers committed. See Dodds v. Richardson, 614 F.3d at 1200 (citing Rizzo v. Goode, 423 U.S. at 371). The Tenth Circuit notes that the Supreme Court concluded, in Rizzo v. Goode, that there was a sufficient link between the police misconduct and the city officials' conduct, because there was a deliberate plan by some of the named defendants to "crush the nascent labor organizations." Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371).

         A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d at 1218. Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218. Establishing an informal policy or custom requires the plaintiff to show that the misconduct was "widespread" - Le., that it involved a "series of decisions." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). The existence or nonexistence of such a policy, practice, or custom is a question of fact for the jury. See Powers v. Hamilton Cty. Pub. Defender Comm'n, 501 F.3d 592, 599 (6th Cir. 2007)("[T]he evidence showed at least a disputed question of fact as to the existence of its alleged policy or custom"); Surprenant v. Rivas, 424 F.3d 5, 21 (1st Cir. 2005)("O'Mara challenges the very existence of the interdicted policy, custom, or practice. Proving the existence of a policy, custom, or practice normally entails questions of fact." (citation omitted)); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999)("In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation."); Gregory v. City of Rogers, 921 F.2d 750, 757 (8th Cir. 1990)("[A]ppellants have raised material questions of fact whether it was the custom of the Rogers Police Department that officers could use their discretion in deciding whether or not to arrest intoxicated individuals, despite the state statute requiring their arrest."); Fancherv. Barrientos, No. Civ. 11-0118 LH/LAM, 2013 WL 8600085, at *4 (D.N.M. Aug. 19, 2013)(Hansen, J.)("[A]t this time the record is unclear and it remain a question of fact as to which policy was in place."); Jacobs v. Duimovic, 752 F.Supp. 1516, 1525 (D. Colo. 1990)(Babcock, J.)("[T]he Jacobs have failed to meet their summary judgment burden of showing that it adopted a policy, custom or procedure that caused constitutional violations, or that there is a question of fact as to the existence of such a policy.").

         LAW REGARDING FIRST AMENDMENT RETALIATION CLAIMS

         "Official reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right.'" Hartman v. Moore, 547 U.S. 250, 256 (2006)(quoting Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)). For instance, it is therefore "settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore, 547 U.S. at 256 (citation omitted). One variation of a First Amendment retaliation claim that the Supreme Court has described are those claims that arise when a public employee alleges that he has been fired or otherwise punished for speech criticizing the government. See Hartman v. Moore. 547 U.S. at 260 (citing Pickering. 391 U.S. at 566-67).

         The Tenth Circuit applies "a five-prong analysis to determine whether action taken against an employee constitutes retaliation in violation of the employee's First Amendment rights." Hook v. Regents of Univ. of Cal., 394 Fed.Appx. 522, 534 (10th Cir. 2010)(unpublished).

First, the court must determine whether the employee speaks pursuant to his official duties. If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created. Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine whether the employee's interest in commenting on the issue outweighs the interest of the state as employer. Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a motivating factor in a detrimental employment decision. Finally, if the employee establishes that his speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech.

Couch v. Bd. of Trs. of Mem'l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009)(quotations and citation omitted). "Implicit within this five-prong analysis 'is a requirement that the public employer have taken some adverse employment action against the employee.'" Hook v. Regents of Univ. of Cal., 394 Fed.Appx. at 534 (quoting Couch v. Bd. of Trs. of Mem'l Hosp., 587 F.3d at 1235-36). The standard for determining whether an employer subjected an employee to an adverse employment action is the same for retaliation claims under the First Amendment and Title VII, see Hook v. Regents of Univ. of Cal., 394 Fed.Appx. at 353.[113] The test is whether the action "would deter a reasonable person from exercising his First Amendment rights." Hook v. Regents of Univ. of Cal., 394 Fed.Appx. at 353 (internal quotation marks omitted)(quoting Couch v. Bd. of Trs. of Mem'l Hosp., 587 F.3d at 1238). See Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 n.4 (10th Cir. 2007)(citing Burlington N. & Santa Fe Rv. v. White. 548 U.S. 53 (2006)); Havnes v. Level 3 Commc'ns. 456 F.3d 1215. 1228 (10th Cir. 2006). See Gerald v. Lockslev, 785 F.Supp.2d 1074, 1117 (D.N.M. 201 l)(Browning, J.)(applying the Title VII standard for adverse employment action to determine that neither "[t]he Defendants encouraging [the Plaintiff] to minimize or not pursue a grievance because it would not be good for his career without any action" nor the Defendants placing the Plaintiff on administrative leave amounted to adverse employment actions.").

         1. Speech Pursuant to Official Duties.

         Under Garcetti v. Ceballos, and its progeny, a plaintiff must show that the substance of the speech which forms the basis for the First Amendment claim involves something that is not part of the plaintiffs official duties and is a matter of public concern, and not merely a complaint involving the plaintiffs own employment. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d at 1202. In Brammer-Hoelter v. Twin Peaks Charter Academy, the Tenth Circuit applied the analysis from Garcetti v. Ceballos to determine whether the employee's First-Amendment right had been violated. 493 F.3d at 1202-08. First, the court must determine whether the employee speaks "pursuant to her official duties." 493 F.3d at 1202. "If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech 'simply reflects the exercise of employer control over what the employer itself has commissioned or created.'" 492 F.3d at 1202 (quoting Garcetti v. Ceballos, 547 U.S. at 422).

         Speech relating to tasks within an employee's uncontested employment responsibilities may not be protected from regulation, even though the speech concerns an unusual aspect of an employee's job that is not part of his everyday functions. See Battle v. Bd. of Regents, 468 F.3d 755, 761 n.6 (11th Cir. 2006). In some circumstances, filing a complaint with "an agency outside [a plaintiffs] direct chain of command . . . [i]s not pursuant to official duties, but rather [i]s the speech of a private citizen." Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ, 595 F.3d 1126, 1137 (10th Cir. 2010). The ultimate question is whether the employee speaks as a citizen or as a government employee - an individual acting "in his or her professional capacity." Gerald v. Lockslev, 785 F.Supp.2d at 1104. See Jones v. Lincoln Cty. Comm'rs, No. CIV 06-0591 JB/LCS, 2007 WL 5239190, at *11 (D.N.M. July 10, 2007)(Browning, J.)(concluding that an employee acted as a citizen, because "no particular political affiliation is required for Jones' position as Deputy Sheriff, and it is not plausible that Jones had an official duty to oppose his boss in a political election").

         2. Speech about Matters ...


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