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Allison v. City of Farmington

United States District Court, D. New Mexico

August 21, 2019

BRITTANY ALLISON, Plaintiff,
v.
THE CITY OF FARMINGTON, FARMINGTON POLICE DEPARTMENT, STEVEN HEBBE, in his individual capacity, AND BRIAN JOHNSTON, in his individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court upon Defendants' Motion for Summary Judgment as to All State Law Counts of Plaintiff's Complaint (Motion for Summary Judgment), filed March 4, 2019. (Doc. 50). Plaintiff responded on April 15, 2019, and Defendants replied on May 13, 2019. (Docs. 56 and 63). Having considered the Motion for Summary Judgment, the briefing, and relevant evidence, the Court grants the Motion for Summary Judgment, in part, as described below.

         As an initial matter, Plaintiff moves to strike the “Introduction” section of the Motion for Summary Judgment. Plaintiff asserts that (1) neither the Local Rules nor the Federal Rules of Civil Procedure allow an “Introduction” in a motion for summary judgment, and (2) the rules require a summary judgment movant to set forth numbered statements of material facts with citations to the record. D.N.M. LR-Civ. 56.1(b); Fed.R.Civ.P. 56(c)(1). Aside from the “Introduction, ” Defendants, in fact, have a numbered “Undisputed Material Facts” section with citations to the record. Interestingly, Plaintiff also included an “Introduction” section in her motion for summary judgment. (Doc. 43). In accordance with the rules on motions for summary judgment, the Court does not rely on narrative introductory sections to decide motions for summary judgment. Consequently, the Court considers only Defendant's “Undisputed Material Facts” section to decide the Motion for Summary Judgment. That being the case, Court declines to strike the “Introduction.”

         A. Background

         1. Plaintiff's Complaint (Doc. 1)

         Plaintiff, a former police officer with the Farmington Police Department (FPD), brings this employment lawsuit against the FPD, the City of Farmington, FPD Chief of Police Steven Hebbe (in his individual capacity), and FPD Corporal Brian Johnston (in his individual capacity). Plaintiff's claims arise from alleged issues she had beginning in January 2017 and ending in July 2017 related to her ability to express breast milk while employed by the FPD. Johnston was Plaintiff's direct supervisor during the times relevant to this lawsuit.

         The Motion for Summary Judgment pertains to Counts III, VII, VIII, and IX, Plaintiff's state law claims. The Court, however, has already dismissed Count III and Plaintiff agrees to “the summary judgment dismissal of Count IX….” (Doc. 69); (Doc. 56) at 16. Plaintiff further concedes that she cannot bring Count VIII against Johnston and Hebbe in their individual capacities. (Doc. 56) at 16. Therefore, the Court only addresses whether Defendants are entitled to summary judgment as to Count VII, and whether the City of Farmington and the FPD are entitled to summary judgment as to Count VIII.

         Count VII is a breach of an implied contract of employment claim. Plaintiff alleges that Defendants breached the implied contract of employment by violating various policies and procedures, including policies and procedures on

promotions, light duty, prohibitions against workplace discrimination, harassment, and hostile work environment, formal investigation of complaints, protection of due process rights, departmental investigations, retaliation, and adherence of employee conduct to federal and State laws.

(Doc. 1) at ¶ 126.

         Count VIII is a New Mexico Whistleblower Protection Act (WPA) claim. Plaintiff alleges that she communicated to the FPD administration and others at the City of Farmington

unfair and discriminatory practices, allegations of differential treatment, practices in violation of the [City of Farmington's] and the FPD's policies and procedures, the intentional inaction of the administrators of the FPD with respect to abiding by policies and laws, complaints of pain and the deleterious health care effects of Johnston's decision on her and her child, and failures to address her legitimate concerns.

Id. at ¶ 130. Plaintiff further alleges that

[o]ver time, these communications from [Plaintiff] reiterated concerns about violations of her statutory rights and privileges, violations of constitutional rights, and the improper use and interpretation of [City of Farmington] and FPD policies to harm the terms and conditions of [Plaintiff's] employment, herself, and her child.

Id. Plaintiff maintains that as a result of these communications the City of Farmington and the FPD retaliated against her by creating a hostile work environment, refusing to promote her, and creating “workplace alienation, among other adverse employment actions.” Id. at ¶ 134.

         2. Factual Summary[1]

         In November 2016, Plaintiff returned from maternity leave to work in her FPD patrol position during the swing shift. (Doc. 1) at ¶ 14. Plaintiff's supervisor on the swing shift, Tamara Smith, complied with Plaintiff's request for breaks to express breast milk. Id. at ¶ 15.

         On January 8, 2017, the FPD moved Plaintiff to a day shift. Id. at ¶ 16. Johnston supervised Plaintiff beginning in mid-January 2017. (Doc. 55-1) at 21, depo. at 164. In the beginning of February, Plaintiff told Johnston she was breast feeding and expressing breast milk. (Doc. 56-1) at 8, depo. at 80. Johnston told Plaintiff to express breast milk during her lunch break. (Doc. 55-1) at 1. Plaintiff, however, often could not do so because of the call load. Id. Because Plaintiff was not able to express enough breast milk at work, her milk supply dwindled causing health problems for her child. Id.

         According to Plaintiff, Johnston would “shut her down” when she tried to speak to him about breaks to express breast milk. Id. at 20, depo. at 113. Johnston would also “ignore” Plaintiff, glare at her, give her “dirty looks, ” and wrote her “up for everything that in the past happened….” Id. at 21, depo.at 164-65; (Doc. 51-1) at 3, depo. at 207.

         On April 17, 2017, Johnston contacted Lt. Casey Malone about Plaintiff's work performance. (Doc. 55-1) at 1. Malone advised Johnston to speak with Plaintiff. Id. Johnston spoke with Plaintiff later that day and reported to Malone that Plaintiff mentioned she had post-partum depression. Id. Malone then met with both Johnston and Plaintiff noting that he sensed Plaintiff was uncomfortable in Johnston's presence. Id. Malone, therefore, asked Johnston to step out of the room. Id. Plaintiff opened up to Malone, stating she was feeling overwhelmed. Id. Plaintiff also stated she was unable to express breast milk at work often enough, which caused her milk to dwindle and issues with her baby. Id. Plaintiff told Malone that Johnston asked her to express breast milk at lunch but because of the call load she was unable to do so. Id. Moreover, because Plaintiff moved outside of the city limits, Plaintiff could no longer go home to express breast milk and had to use the women's locker room and the “ICC sub station.” Id. Plaintiff did not feel comfortable expressing breast milk at those locations because people walked in. Id. Malone told Plaintiff that whenever she needed to express breast milk she would be permitted to do so. Id.

         Malone spoke with Johnston shortly thereafter about the situation.[2] Id. Malone then spoke with Hebbe and they came up with a better place for Plaintiff to express breast milk. Id. Hebbe further stated that, if necessary, Plaintiff could be temporarily reassigned to a “light-duty schedule.” Id.

         Hebbe was not aware of state or federal law regarding the provision of either a time or place for female employees to express breast milk until the spring of 2017 when Malone brought the issue up. (Doc. 43-1) at 4, depo. at 15-16.

         The next day, April 18, 2017, Malone again met with Plaintiff. (Doc. 55-1) at 2. He told Plaintiff she could use a vacant office with a couch and other furniture, and locks, to express breast milk. Id. Malone also offered the option of a four to six-week temporary reassignment. Id. Plaintiff told Malone she ...


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