Baca v. Sklar

Decision Date16 February 2005
Docket NumberNo. 04-2010.,04-2010.
Citation398 F.3d 1210
PartiesPatrick J. BACA, Plaintiff-Appellant, v. David SKLAR and the Board of Regents of the University of New Mexico, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Kathryn Hammel, The Hammel Law Firm, P.C., Albuquerque, NM, for the Plaintiff-Appellant.

John M. Wells, Albuquerque, NM, for the Defendants-Appellees.

Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

After accusing his employer, the University of New Mexico ("University"), of engaging in illegal financial dealings with the state Department of Health ("DOH"), Patrick Baca allegedly endured a campaign of retaliation culminating in his resignation. Baca sued the University and Dr. David Sklar, his supervisor, claiming First Amendment retaliation and discrimination based on ethnicity. The district court granted summary judgment to the defendants on all claims. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM the district court's grant of summary judgment on Baca's Title VII, § 1981, and § 1983 ethnic discrimination claims. However, we REVERSE the district court's grant of summary judgment on Baca's First Amendment retaliation claim.

I

"In setting forth the facts, we view the evidence in the light most favorable to the non-moving party, as we must when reviewing a grant of summary judgment." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002). Viewed accordingly, the record reveals the following facts.

The Center for Injury Prevention Research and Education ("CIPRE"), a subdivision of the University of New Mexico School of Medicine's Department of Emergency Medicine, hired Patrick Baca as its Program Manager on March 5, 2001. Dr David Sklar, the Chair of the Department of Emergency Medicine, served as Baca's immediate supervisor. Baca's duties included supervising CIPRE's five full-time employees, soliciting funds, and assuring CIPRE's financial accountability.

During the first week of April 2001, Baca attended a lunch with Jamie Michael, a CIPRE employee, and Karen Gaylord, a DOH employee. At the lunch, Gaylord offered to extend a grant to CIPRE, but insisted that the bulk of the funds flow through CIPRE to (1) New Mexico Advocates for Families and Children ("NMAFC"), a non-profit organization headed by a recent DOH retiree, and (2) Dr. Sklar's girlfriend, Dr. Debra Helitzer. Baca suspected that Gaylord was attempting to skirt New Mexico's procurement law, which requires DOH to provide funds to non-profit organizations and private researchers only after a competitive bidding process, but permits DOH to disburse funds non-competitively to the University. After Baca declined the offer, Gaylord informed him that CIPRE had a similar grant in place that helped fund Michael's salary.

Baca investigated and discovered a pending amendment to a DOH contract, not yet approved by the University's controller, the funds of which would contribute to Michael's salary with the majority flowing through to NMAFC. Baca also learned that CIPRE bypassed the University procedure of requesting applications for a vacant position, and hired Michael by falsely claiming that two grantors insisted that she serve in that position.

Within a week of the lunch meeting, Baca reported Gaylord's offer to Sklar. Sklar responded, "we can't do that" (i.e., enter into such an arrangement with DOH). No further discussion ensued at that time. Several weeks later, however, Baca raised his concerns again with Sklar and Sklar's assistant, Barbara Konrath. Konrath stated that accepting the funds would be imprudent.

Shortly after Baca's conversations with Sklar, Baca noticed that Michael and another CIPRE employee, Lynn Fullerton, began directly communicating with Sklar. Baca suspects that these conversations involved supervisory issues that Baca, not Sklar, should have handled.

In June 2001, Baca met with an individual in the University's human resources department and in July he conferred with the University's attorney. At both meetings Baca described Gaylord's offer, as well as the irregular process by which CIPRE had hired Michael. After both individuals agreed with Baca that the University should terminate Michael's employment, Baca approached Sklar and urged him to do so. Sklar refused. At about this time, Lynn Fullerton, at her request, was transferred out from under Baca's supervision. Consequently, Sklar removed $40,000 from CIPRE's budget. This money came from a grant funding Fullerton's work at CIPRE and followed her when she left. Baca expressed to Sklar his displeasure that Sklar permitted Fullerton to take the grant money with her, but found Sklar unresponsive.

Beginning in July 2001, Sklar began meeting individually with two other CIPRE employees — Norma Faries and Jonathon LaValley. On August 24, 2001, Sklar called Baca into his office to inform him that Baca was too negative in his approach at CIPRE. Less than a week later, on August 30th, Sklar sent Baca a letter reprimanding him for publishing a vacancy announcement for a research position that stated: "Must play a positive role in an often multidisciplinary and ego-ridden environment." Contravening University procedures, Sklar failed to utilize human resources personnel in imposing this reprimand. In a separate incident in early fall, Sklar refused to allow Baca to supervise a data analyst whom Baca had recruited.

In early December 2001, Sklar initiated a complaint against Baca before the University's Office of Equal Opportunity ("OEO") claiming that female staff members reported feeling intimidated by Baca, and that Baca treated them rudely. Shortly after Sklar filed the complaint, Jonathan Armendariz in the University's dispute resolution office contacted Baca and said, "Pat, Dave Sklar is going to fire you tomorrow." Armendariz offered to mediate between Baca and Sklar and Baca agreed. At the meeting the following day, Sklar informed Baca that an OEO complaint had been filed against him (omitting that Sklar himself had filed the complaint) and that Sklar would have to fire Baca if Baca did not resign. Baca refused to resign until OEO completed its investigation.

In late January, Baca spoke with an OEO representative who informed him that there was no cause for Sklar's complaint. At this time, Baca complained to OEO about what he perceived to be Sklar's retaliation against him for disclosing the DOH funding irregularities. To follow up this complaint, Baca filed a document with the internal audit office in early February detailing his objections to Sklar's treatment of him, and suggesting that Sklar discriminated against him based on his ethnicity. Baca is Hispanic. Shortly thereafter, Sklar once again demanded Baca's resignation and Baca refused.

Within days of this latest altercation, Armendariz called Baca and asked him to attend a mediation with Sklar. Baca volunteered to Armendariz that he wanted to leave CIPRE and that he would agree "to look for a job elsewhere." The mediation occurred on February 12, 2002. At the invitation of the mediators, Sklar was the first person to speak. He announced his intention to move Baca's office from the basement to an upper floor that housed the Emergency Medicine Department. Baca stated his refusal to move his office and said: "I want a new job, and between now and then, I want to be out of this environment.... I could take [one] project and work on it from my house, [with] the assistance of the employee who is hired under that grant... [and of] a good computer data person." When asked how long he wished to work from home, Baca responded, "until I get [a new job], because I don't want to be coerced into quitting my job." Those present expressed reluctance, to which Baca replied, "it has to work because that's what I want."

After discussing the matter, the mediators insisted that Baca agree to resign by a date certain. Baca asked if there were any alternative, and one of the mediators informed him that Baca was welcome to remain in his position, but that he would have to move to the new office in the Emergency Medicine Department. Baca then agreed to resign after six months.

Alleging that both Sklar and the University unlawfully discriminated against him based on ethnicity and that the defendants retaliated against him for exercising his First Amendment rights, Baca sued the defendants in state court, seeking damages and equitable relief under Title VII, 42 U.S.C. § 2000e-3(a); 42 U.S.C. §§ 1981 and 1983; the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-1 et seq.; and New Mexico tort law. The defendants removed the case to federal district court and moved for summary judgment. Baca's ethnic discrimination claims were rejected by the district court's conclusion that Baca failed as a matter of law to establish a prima facie case of discrimination. On this basis, the court granted summary judgment to the defendants on Baca's Title VII, § 1981, and § 1983 discrimination claims. Furthermore, after ruling that Baca failed to create a genuine issue of fact about whether his statements substantially motivated the defendants' adverse actions, the court granted defendants' motion for summary judgment on Baca's First Amendment claim. The court remanded the remaining state law claims to state court. Baca now appeals.

II

We review a district court's grant of summary judgment de novo, using the same standards applied by the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). We view the evidence and reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party. Id. Courts may grant summary judgment only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a...

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