Decision Date27 September 2000
Docket NumberNo. 24,645.,24,645.
Citation11 P.3d 550,2000 NMSC 29,129 N.M. 586
PartiesAna GONZALES, Plaintiff-Appellee and Cross-Appellant, v. NEW MEXICO DEPARTMENT OF HEALTH, Las Vegas Medical Center, Defendant-Appellant and Cross-Appellee.
CourtNew Mexico Supreme Court

Walter G. Lombardi, Louis N. Colon, Santa Fe, for Appellant and Cross-Appellee.

James A. Burke, Santa Fe, for Appellee and Cross-Appellant.



{1} After a four-day trial, a jury found that Defendant Las Vegas Medical Center (LVMC) had retaliated against Plaintiff Ana Gonzales (Gonzales) after she pursued a discrimination claim under the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 1987, prior to 1991, 1993, 1995, and 2000 amendments). In 1990, Ana Gonzales brought a claim alleging that LVMC had discriminated against her because of her Hispanic national origin. See NMSA 1978, § 28-1-7(A) (1987, prior to 1995 amendment). In 1994, the New Mexico Human Rights Commission (HRC) concluded that Gonzales had failed to make a prima facie case of discrimination. Gonzales then appealed to the district court for a trial de novo under NMSA 1978, § 28-1-13(A) (1987). The jury determined that she had not been discriminated against but that she had suffered retaliation at the hands of LVMC. She was awarded damages and attorney's fees. LVMC filed an appeal directly to this Court under Section 28-1-13(C) of the Human Rights Act, and Gonzales filed a cross-appeal. We affirm the determinations of the trial court.

{2} On appeal, LVMC presents the following challenges to the proceedings below: (1) whether the trial court erred in refusing to dismiss Gonzales's retaliation claim; (2) whether the trial court erred in refusing to admit evidence about the changed structure of the crisis hotline in November 1995 and Gonzales's involvement with it; (3) whether the trial court erred in refusing to admit evidence of the HRC decision and order; (4) whether the trial court erred in refusing to admit evidence that Gonzales could have mitigated her damages by working on a different hotline; and (5) whether the trial court erred in refusing to instruct the jury on Gonzales's duty to mitigate damages.

{3} In the cross-appeal, Gonzales asks the Court to address the following issues: (1) whether the district court erred by failing to award stronger sanctions against LVMC for alleged abuses of discovery and destruction of evidence; (2) whether the trial court erred with respect to her discrimination claim by (a) by refusing to instruct the jury on disparate impact, (b) declining to give an instruction based on a federal Equal Employment Opportunity Commission (EEOC) regulation relating to disparate impact, and (c) refusing to instruct the jury that a minority may discriminate against a person of the same ethnic background; and (3) whether the district court erred regarding attorney's fees in (a) reducing attorney's fees because Gonzales was only partially successful at trial, (b) failing to award attorney's fees for legal work done before the HRC, and (c) failing to award interest on the judgment and attorney's fees.

{4} Regarding LVMC's claims, we hold that the jury was reasonable in concluding that Gonzales was a victim of retaliation and affirm the trial court on this issue. We also affirm the trial court's ruling not to admit the evidence that LVMC claims should have been introduced to rebut Gonzales's claim of retaliation, as well as the court's decision to exclude evidence and jury instructions regarding the question of mitigation. As for the claims of Gonzales, we affirm the trial court's refusal to instruct the jury concerning disparate impact, discrimination against a minority by a minority, and the EEOC regulation relating to disparate impact. We affirm the trial court's determination that attorney's fees should not be awarded for those areas in which Gonzales did not prevail at trial or in the discrimination claim before the HRC. We also affirm the court's determinations not to assess interest on attorney's fees or the judgment and not to impose greater discovery sanctions against LVMC.

A. The Crisis Hotline

{5} In the summer of 1989, LVMC was awarded a contract from the New Mexico Department of Health to provide outpatient mental health services to clients in San Miguel and Mora counties; the new program was called San Miguel/Mora Mental Health Services (SM/MMHS). The contract required LVMC to provide a twenty-four hour telephone crisis hotline for emergency situations.

{6} At that time the Hospital Administrator of LVMC was Pablo Hernandez, M.D., who had a practice of conducting monthly breakfast meetings to convey information to the entire LVMC staff. During a breakfast meeting in late summer or early fall of 1989, Dr. Hernandez described the contract for outpatient services and invited the staff to suggest program ideas for SM/MMHS. Gonzales, a Psychologist II at LVMC, did not attend this particular meeting.

{7} One person who did attend was Harold Pullings, also a Psychologist II. In response to Dr. Hernandez's request for ideas, Pullings thought of a telephone crisis hotline that he could manage on an on-call basis during his off-duty hours. Pullings was supervised by Thomas Sturm, Ph.D., Director of LVMC's Psychology Department. He described the idea to Dr. Sturm, who suggested Pullings submit a proposal to Dr. Hernandez. Dr. Sturm also recommended that at least one other person should work on the hotline in a backup capacity. Pullings approached another Psychologist II, Rudy Grano, who agreed to work with him. The crisis hotline idea was presented to Dr. Hernandez. After consulting with Dr. Sturm about the qualifications of Pullings and Grano, Dr. Hernandez approved the project without advertising for bids or notifying the rest of the Psychology Department staff. Pullings began working on the hotline in November of 1989, with Grano joining him a month later. Dr. Hernandez testified that the need to begin the program was urgent.

{8} On November 3, 1989, Gonzales learned that the management of the crisis hotline had been awarded to Pullings. A few days later, she complained to Dr. Sturm that she believed the award to Pullings was unfair. She testified that Dr. Sturm told her that, if Pullings approved, she could work on the hotline every other weekend in a backup capacity. She told him that she was not interested in such minimal participation; she believed she was qualified to assume Pullings' role as manager of the hotline. Gonzales wanted to have the same opportunity that Pullings had to submit a proposal for the operation of the crisis hotline. Dr. Sturm responded that he did not have the authority to give her Pullings' job. He suggested that if she wanted that job, she would need to submit her own proposal to Dr. Hernandez for consideration.

{9} Dr. Hernandez testified that Gonzales never submitted any request or personally asked him if she could work on the hotline in any capacity. Gonzales testified that she would have submitted a written application for the crisis hotline if she had known that such an application would have afforded the same opportunity that was given to Pullings. She concluded that the matter had been decided with such finality that a submission would have been demeaning and futile. In a memorandum dated November 7, Gonzales expressed her interest in working on the community program in Las Vegas, stating that she "would appreciate hearing from [Dr. Sturm] about what is available and what [she needs] to do to qualify." However, Dr. Sturm testified that, to his knowledge, although the SM/MMHS contract was renewed annually, the position of manager of the crisis hotline was never opened for bids. In the fall of 1995, Gary Buff, Ph.D., who had succeeded Dr. Hernandez as Hospital Administrator, decided to reorganize the crisis hotline and sent a memorandum to all eligible clinicians, including Gonzales, soliciting their participation on the hotline.

B. Complaint Before the HRC

{10} On February 16, 1990, Gonzales filed a charge of discrimination with the HRC. She alleged that LVMC discriminated against her on the basis of her Hispanic national origin in violation of Section 28-1-7(A) of the Human Rights Act when it failed to advertise or offer her the part-time position as manager of the crisis hotline. Gonzales's discrimination complaint was heard by the HRC in a three-day hearing in January 1994. The HRC issued its decision, findings of fact, and conclusions of law in August 1994. The HRC concluded that Gonzales had failed to make a prima facie case that her Hispanic national origin motivated LVMC's failure to announce formation of the crisis hotline or to offer her a position. The HRC found that LVMC did not have "the illegal discriminatory intent necessary to find in favor of Gonzales." The HRC was, however, critical of LVMC's hiring practices, noting in particular "the cavalier attitude in which the Center was permitted to offer job opportunities without following any state selection process."

C. Appeal to District Court

{11} Gonzales, on August 29, 1994, appealed the HRC's decision in district court, seeking a trial de novo as provided by Section 28-1-13(A). She alleged the following as the basis of her complaint: first, that LVMC discriminated against her, based upon her national origin, in November 1989 by selecting Pullings to work on a crisis hotline without "any rational selection process" in violation of Section 28-1-7(A) of the Human Rights Act; and second, that LVMC retaliated against her because she filed a complaint with the HRC in violation of Section 28-1-7(I)(2). On May 8, 1997, the jury returned a verdict partially in favor of each party. The jury determined that LVMC did not discriminate against Gonzales because of her national origin by not awarding her a position on the crisis hotline but found that LVMC did retaliate...

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