Hare v. Baur

• Decision Date: 30 December 2020
• Docket Number: No. 2:19-cv-01091-RB-GJF,2:19-cv-01091-RB-GJF
• Parties: THOMAS HARE, Plaintiff, v. BENNETT J. BAUR, an individual; STATE OF NEW MEXICO LAW OFFICES OF THE PUBLIC DEFENDER; JENNIFER BIRMINGHAM, an individual; JAMES WALKER, an individual; and MICHELLE HALEY, an individual; Defendants.
• Court: U.S. District Court — District of New Mexico

THOMAS HARE, Plaintiff, v. BENNETT J. BAUR, an individual;STATE OF NEW MEXICO LAW OFFICES OF THE PUBLIC DEFENDER;JENNIFER BIRMINGHAM, an individual; JAMES WALKER, an individual;and MICHELLE HALEY, an individual; Defendants.

No. 2:19-cv-01091-RB-GJF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 30, 2020

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas Hare previously worked as an Associate Trial Attorney for the Law Offices of the Public Defender (LOPD) in Alamogordo, New Mexico. He filed suit against the LOPD and several of its employees, asserting claims under federal and state law. Remaining are his claims for retaliation pursuant to Title VII and 42 U.S.C. § 1981. The parties filed cross-motions for summary judgment. For the reasons discussed below, the Court will deny Plaintiff's motion for summary judgment and grant summary judgment to Defendants.

I. Factual Background

Beginning in October 2014, Plaintiff was employed for approximately one year as an Associate Trial Attorney for the LOPD in Alamogordo. (Doc. 71-4 at 3, 9.) At some point, Plaintiff filed two Equal Employment Opportunity Commission (EEOC) charges against the LOPD based on that period of employment.¹ (See Doc. 1 (Compl.) at 5, 7-8.) The substance of those charges isnot at issue in this lawsuit.

In April 2018, Plaintiff applied for two positions with the LOPD—a Senior Criminal Defense Attorney position in Roswell and a Defense Attorney position in Carlsbad. (See Docs. 103-A-1; 103-A-2; 103-B ¶¶ 3-4; 103-C ¶¶ 3-4.) In his applications for each position, his work history reflected that he had approximately four years of experience as a practicing attorney but had not practiced law since August 2016.² (See Docs. 103-A-1 at 4-6 (describing work experience); 103-A-2 at 9-11 (same); 103-B ¶ 6; 103-C ¶ 6.) Craig Acorn, in his duties as a hiring manager with the LOPD, reviewed Plaintiff's application for the Roswell position. (Doc. 103-B ¶¶ 3-4.) Acorn chose a different applicant who had "significantly more job-related experience" than Plaintiff. (Id. ¶ 6.) He based his hiring decision in part on the fact that Plaintiff "had not practiced law since August 2016." (Id.) Deirdre Ewing, in her duties as hiring manager with the LOPD, reviewed Plaintiff's application for the Carlsbad position. (Doc. 103-C ¶¶ 3-4.) She also chose a different applicant who "possessed significantly more job-related experience" and basedher hiring decision in part on the fact that Plaintiff "had not practiced law since August 2016."³ (Id. ¶ 6.) Neither Acorn nor Ewing knew that Plaintiff had ever filed EEOC charges against the LOPD, nor did they consider EEOC charges in making their hiring decisions for these open positions.⁴ (Docs. 103-B ¶ 7; 103-C ¶ 7.)

Ronald Herrera, the Director of Human Resources for the LOPD, testified that "[h]iring managers have been trained in non-discriminatory hiring practices" and "are the only individuals who are able to make hiring decisions within the LOPD." and (Doc. 103-A ¶¶ 3, 5.) The LOPD does not share any information about "internal or employee complaints, union grievances, or EEOC/[Human Rights Bureau] Charges" with hiring managers. (Id. ¶ 6.) All such complaints and "[c]harge files are kept separate from employee personnel files because they are confidential and are not relevant when making hiring decisions." (Id.)

In 2018, Plaintiff worked for a time as a trial attorney with the Third Judicial District Attorney's office in Las Cruces, New Mexico, separating from the position in September 2018. (Doc. 71-4 at 2.) He resigned because his position did not afford him sufficient time to litigate a custody matter. (Id.) He "had a custody hearing on or about September 21, 2018[,]" which his job with the District Attorney's office "would have prevented [him] from [attending] . . . ." (Id.)

Defendant Jennifer Birmingham is the Deputy Chief Public Defender for the State of New Mexico. (Doc. 103-D ¶ 2.) Birmingham provided an unsworn declaration attesting that she hadreceived information about Plaintiff that led her to take certain actions:

On or around September 19, 2018, I received a call from a coworker of Dr. Hare in my capacity of volunteering with the New Mexico Judges and Lawyer's Assistance Program ("JLAP") who expressed concerns to me about Dr. Hare's behavior, mental state, and ability to practice law. This individual also told me that Dr. Hare walked out of court in Las Cruces. The source believed that Dr. Hare quit his job because he had returned to the District Attorney's Office in Las Cruces, angry and because he threw a computer. I reported this further up the chain within JLAP. . . . On that same day, I received a call from a manager in LOPD's Las Cruces office who also told me that Dr. Hare exhibited concerning behavior in court. This manager also relayed to me that he had heard that Mr. Hare threw his computer when he returned to the DA's Office.⁵

(Doc. 103-D ¶¶ 6-7.) Two days later, Birmingham traveled to the Alamogordo LOPD office, where she heard from Defendant Haley, Defendant Walker, and another LOPD employee that there was still concern about Plaintiff's behavior.⁶ (Id. ¶¶ 8-10.) Birmingham decided "to lock the Alamogordo LOPD office's doors for the day to protect the health and welfare of the LOPD employees. [She] later learned that the staff had not lock [sic] the doors, but that everyone remained cautious." (Id. ¶ 11.) She also spoke with "the Las Cruces LOPD office and the Deputy Chief District Attorney in Las Cruces to inform them of [her] concerns to ensure that any LOPD employees in or around the District Attorney's Office facilities would remain safe." (Id. ¶ 12.)

Birmingham, Haley, and Walker have all testified that they were unaware that Plaintiff had ever filed EEOC charges against the LOPD. (See id. ¶ 13; Docs. 103-E ¶ 3; 103-F ¶ 3.)

Plaintiff filed suit against Defendants Baur, LOPD, Birmingham, Walker, and Haley on November 22, 2019, asserting claims for retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17 and 42 U.S.C. § 1981, and for various state law claims under N.M. Stat. Ann. §§ 30-13-3, 41-4-1-30, and 41-7-1-6. (Compl.) Attached to the Complaint is the EEOC Charge of Discrimination Plaintiff filed, in which he asserted that Defendants retaliated against him by failing to hire him in April 2018 and by making up a false story about him in September 2018. (Id. at 8-9.) Also attached is the EEOC's Dismissal letter and Notice of Rights, dated September 12, 2019. (Id. at 10-12.)

Plaintiff has since conceded that Defendants are not subject to his state law tort claims, and the Court dismisses all claims under §§ 41-4-1-30 and 41-7-1-6 with prejudice. (See Docs. 85 at 5 n.3 (noting that Plaintiff conceded that Defendants Birmingham, Walker, and Haley are entitled to qualified immunity from state tort law claims (citing Doc. 78 ¶¶ 8-9)); 110 at 2, 13 (conceding that state law tort claims may not lie against Defendants Baur and LOPD).) He has also stated that he pled § 30-13-3, a New Mexico state criminal statute, "for illustrative purposes only" (Doc. 64 at 2), and the Court thus dismisses this claim with prejudice. The only claims remaining, then, are Plaintiff's claims of retaliation under Title VII and § 1981.

II. Legal Standards

A. Summary Judgment Standard of Review

"Summary judgment is proper if, viewing the evidence in the light most favorable to thenon-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Halley v. Huckaby, 902 F.3d 1136, 1143 (10th Cir. 2018) (quoting McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018)). The Court treats cross-motions for summary judgment no differently: it analyzes each motion on its own merits and "according to the well-worn standard for individual Rule 56 motions." See AT&T Mobility Servs., LLC v. Vill. of Corrales, 127 F. Supp. 3d 1169, 1172 (D.N.M. 2015).

"The movant bears the initial burden of 'show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Tanner v. San Juan Cty. Sheriff's Office, 864 F. Supp. 2d 1090, 1106 (D.N.M. 2012) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)); (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial." Id. (citing Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). A party cannot "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Id. at 1107 (quotation and citations omitted). Instead, the non-moving party must come forward with "sufficient evidence on which the factfinder could reasonably find" in her favor. Id. (citations omitted). Evidence that is "merely colorable," Anderson, 477 U.S. at 249, or consists only of "[u]nsubstantiated allegations[,]" McCoy, 887 F.3d at 1044 (quotation omitted), is insufficient.

B. Relevant Local Rules

Pursuant to Local Rule 56, the party moving for summary judgment "must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists." D.N.M. LR-Civ. 56(b). The movant must number the facts "and must refer with particularity to those portions of the record upon which the movant relies." Id. In return, the non-moving partymust also provide "a concise statement of the material facts . . . as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed." Id. "All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted." Id. (emphasis added). "The Response may set forth...