United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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
Plaintiff's Complaint (Doc. 1)
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.
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.
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.
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.
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.
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.
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.
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.
spoke with Johnston shortly thereafter about the
situation. 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.
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.
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 ...