199 F.3d 1126 (10th Cir. 1999), 97-2343, Perry v Woodward

Docket Nº:97-2343, 98-2003
Citation:199 F.3d 1126
Party Name:ELIZABETH PERRY, Plaintiff-Appellant and Cross-Appellee, v. JUDY WOODWARD, individually and as the Bernalillo County Clerk and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Defendants-Appellees and Cross-Appellants.
Case Date:December 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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199 F.3d 1126 (10th Cir. 1999)

ELIZABETH PERRY, Plaintiff-Appellant and Cross-Appellee,


JUDY WOODWARD, individually and as the Bernalillo County Clerk and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Defendants-Appellees and Cross-Appellants.

Nos. 97-2343, 98-2003

United States Court of Appeals, Tenth Circuit

December 20, 1999

Appeal from the United States District Court for the District of New Mexico. D.C. No. CIV-96-1488-JHG/WWD

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Steven K. Sanders, Albuquerque, New Mexico, for Plaintiff-Appellant/Cross-Appellee.

William D. Slease (Henry F. Narvaez, and Jonlyn M. Martinez, with him on the briefs) of Narvaez, Slease and Schamban, P.A., Albuquerque, New Mexico, for Defendants-Appellees/Cross-Appellants.

Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

These matters are before the court on Appellees' Petition for Rehearing with a Suggestion for Rehearing En Banc. We also have the plaintiff - appellant's response. Upon consideration, the panel grants the Petition for Rehearing, withdraws the prior panel opinion, and issues the attached amended opinion in its place.

The Suggestion for Rehearing En Banc was circulated to all the active judges of the court. No active judge having called for a poll, the Suggestion for Rehearing En Banc is denied.


Plaintiff, Elizabeth Perry ("Perry"), sued her employer, the Board of County Commissioners of the County of Bernalillo, and the County Clerk, Judy Woodward ("Woodward"), individually and as County Clerk (collectively "Defendants"), alleging she was discriminated against on the basis of her race and retaliated against because she opposed employment practices made unlawful by state and federal laws. Perry's complaint alleged that Defendants violated the provisions of both the New Mexico Human Rights Act and 42 U.S.C. § 1981.

Defendants moved for summary judgment.1 The district court held that Perry had failed to establish a prima facie case of racial discrimination under New Mexico law by either direct or indirect evidence. Additionally, the district court ruled that Perry could not maintain a cause of action under 42 U.S.C. § 1981 because she was an at-will employee. The district court also held that Perry was required to present evidence of intentional discrimination to prevail under 42 U.S.C. § 1981 but had failed to do so. The district court, therefore, granted Defendants' motion for summary judgment and dismissed all of Perry's state and federal claims with prejudice. The district court denied Defendants' subsequent motion for attorney's fees. Perry appeals the dismissal of her claims. Defendants appeal the denial of their attorney's fees.

This court exercises jurisdiction over both appeals under 28 U.S.C. § 1291 and 636(c)(3). This court REVERSES the summary judgment and VACATES as moot the order on attorney's fees.

No. 97-2343


The evidence is either uncontroverted or treated in a light most favorable to Perry, the non-moving party. On January 1, 1993, Woodward took office as the County Clerk for Bernalillo County, New Mexico. In February 1993, Woodward hired Perry to serve as Deputy County Clerk. Perry began her employment as Deputy County Clerk on March 1, 1993. At the time she accepted the job, Perry understood that the position of Deputy County Clerk was an at-will position.

Woodward began making racist remarks to employees shortly after taking office as County Clerk. During the first staff meeting for employees of the Clerk's office after her election, and in the course of discussing the educational opportunities available to county employees, Woodward announced that Hispanics needed more education. While speaking with Donna Lopez, an Hispanic employee of the County Clerk's office, Woodward called Lopez a "dirty Mexican." Lopez reported this incident to Viola Cortez, the union steward for the White Collar Union. Cortez was also informed by another employee, Kathy Sandoval, that Woodward had told Sandoval that "Mexicans smell bad." In another incident, Woodward approached Rachel Martinez, the union president, and stated, "You know, there's some Afro-Americans, Rachel, you know that they have bad body

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odor. There's a lot of Hispanics that have it." After a union meeting attended by county employees, Woodward told Martinez, "There's a lot of old ladies there, and, you know, they're Hispanics, they're set in their own ways. They don't want to learn the new things. . . . I know I can't go in there and start firing everybody, but I can make it so miserable that they will leave, one at a time." In the course of a work-related conversation, Woodward asked Julie Childers, "Do you know why I don't like Hispanics? . . . I don't like Hispanics 'cause they're hot blooded and my ex-husband left me for a hot blooded Mexican."

In December 1993, Perry, who had authority to make hiring decisions, hired an Hispanic woman, Tina Gallegos, to fill a vacant position in the County Clerk's office. Shortly thereafter, in the presence of Jaime Diaz, a supervisor in the Bureau of Elections, Woodward told Perry not to hire any more Hispanic candidates. During a budget meeting held in January 1994, a discussion ensued involving the addition of new positions to the County Clerk's office. During the course of that discussion, Woodward turned to Perry and said, "And you, I don't want you hiring any more Hispanics." After the meeting, Woodward informed Perry that she intended to be present during all future job interviews conducted by Perry to ensure that Perry "hired some Anglos."2

When a clerical position opened up in the County Clerk's office, Woodward sat in while Perry interviewed candidates for the position. In February 1994, Perry hired Arlene Martinez, an Hispanic woman, to fill the clerical position. Approximately one week later, Woodward approached Irene Serna, informed her that she was contemplating firing Perry, and offered Perry's job to Serna. Woodward fired Perry on February 26, 1994. Woodward subsequently hired Serna to replace Perry as Deputy Clerk. Serna is Hispanic.


This court reviews a grant of summary judgment de novo, applying the same standard applied by the district court. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Under this standard, this court examines the record to determine whether any genuine issue of material fact is in dispute. We construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998). When the nonmovant will bear the burden of proof at trial, she can survive summary judgment only by going beyond the pleadings and presenting evidence sufficient to establish the existence, as a triable issue, of any essential and contested element of her case. See McKnight, 149 F.3d at 1128.

If there are no material issues of fact in dispute, this court determines whether the district court correctly applied the substantive law. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). When this court reviews a grant of summary judgment, it reviews the district court's conclusions of law de novo. See Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1290-91 (10th Cir. 1999). A district court's determination of New Mexico law is also reviewed de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231 (1991); Western Heritage Ins. Co. v. Chava Trucking Inc., 991 F.2d 651, 653 (10th Cir. 1993).


1. Claims Arising Under 42 U.S.C. § 1981

The district court held that Perry's claims arising under 42 U.S.C. § 1981

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(hereinafter "section 1981") must be dismissed because Perry was an at-will employee and is, therefore, unable to establish a violation of section 1981. Further, the district court held that Perry must provide proof of intentional discrimination to prevail under section 1981 and failed to do so.

1. At-Will Employment Relationship

The parties agree that Perry had no written employment contract and was an at-will employee under New Mexico law. See Sanchez v. The New Mexican, 738 P.2d 1321, 1323 (N.M. 1987) (recounting that, under New Mexico law, unless there is an explicit contract of employment stating otherwise, employment is terminable "at will"). Because no material factual dispute exists with respect to Perry's employment status, this court will reverse the grant of summary judgment only if the district court misapplied substantive law when it concluded that an at-will employee cannot maintain a cause of action under section 1981. See Kaul, 83 F.3d at 1212.

Section 1981(a) provides, in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." In 1989, the Supreme Court held that section 1981's prohibition against discriminatory conduct did not extend beyond the formation of a contract to conduct occurring after the establishment of the contractual relationship. See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (holding that section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations").

In response to Patterson and other cases, Congress enacted the Civil Rights Act of 1991. See Pub. L. No. 102-166, 105 Stat. 1071; see also H.R. Rep. No. 102-40(II), at 2 (1991) (stating that one of the purposes of the...

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