Kakuska v. Roswell Indep. Sch. Dist., Docket No. A-1-CA-36488
| Decision Date | 16 April 2019 |
| Docket Number | Docket No. A-1-CA-36488 |
| Parties | MIKE KAKUSKA, Plaintiff-Appellant, v. ROSWELL INDEPENDENT SCHOOL DISTRICT, ROSWELL ISD SCHOOL BOARD, and TOM BURRIS, SUPERINTENDENT, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY, William G. W. Shoobridge, District Judge
The Jones Witt Law Firm, S. Doug Jones Witt, Roswell, NM, for Appellant
Atwood, Malone, Turner & Sabin, P.A., Bryan Evans, Barbara Evans, Roswell, NM, for Appellees.
JUDGES
JACQUELINE R. MEDINA, Judge. WE CONCUR: LINDA M. VANZI, Judge, BRIANA H. ZAMORA, Judge
AUTHOR: JACQUELINE R. MEDINA
{1} Plaintiff Mike Kakuska filed a complaint against the Roswell Independent School District (RISD), the Roswell ISD School Board, and Superintendent Tom Burris1 (collectively, Defendants) for unlawful retaliation in violation of the New MexicoWhistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010). The district court concluded that Plaintiff's communications were not protected under the WPA and granted Defendants' motion for summary judgment as a matter of law. We affirm.
{2} The undisputed facts are as follows. Plaintiff was employed as the Assistant Superintendent for Human Resources for RISD. Plaintiff's job duties included serving as RISD's chief adviser in the interpretation of personnel policies, implementing federal wage and hour laws, and placing employees on the salary schedule. During Plaintiff's employment in 2012, an RISD employee was placed on administrative leave pending an investigation into whether the employee hacked another employee's email account. Plaintiff's supervisor, the Superintendent, informed Plaintiff that he intended to terminate the employee. Plaintiff responded that discharging the employee would violate RISD policy and recommended reprimand over termination. Plaintiff told the Superintendent "we'd never prevail in a court procedure" regarding the proposed termination.
{3} RISD ultimately determined the employee violated two school policies, one concerning the unauthorized disclosure of confidential information and the other concerning acceptable technology use. Pursuant to a settlement agreement, the employee was allowed to resign. Plaintiff acknowledged that legal counsel advised the Superintendent he was within his rights to terminate the employee.
{4} Later in the 2012 academic year, the Superintendent proposed restructuring the pay scale for two new administrative assistant positions. Placing employees on the pay scale and administering the salary schedule were included within Plaintiff's job duties. Plaintiff objected to the restructuring and asserted that the proposal would violate state and federal wage and hour laws. The Superintendent consulted with legal counsel and proceeded with the pay restructuring.
{5} Plaintiff received a work evaluation at the end of the academic year that he characterized as "the first negative evaluation of his career at RISD." Plaintiff responded to his evaluation in writing, asserting among other things, that the proposed restructuring of the pay scale for the new employees was against the law. The following academic year, RISD notified Plaintiff that his contract would not be renewed. RISD then placed Plaintiff on paid administrative leave until his contract expired in June 2014.
{6} Based on the above undisputed facts, RISD moved for summary judgment on the basis that Plaintiff's "alleged whistleblowing activity took place in the course of his normal job responsibilities" and therefore was not protected under the WPA. In addition, and as Plaintiff concedes, he never took his concerns to the school board, the media, or anyone outside the school district. After hearing argument from the parties, the district court entered an order granting Defendants' motion for summary judgment dismissing Plaintiff's WPA claims as a matter of law. This appeal followed.
{7} We review the district court's grant of summary judgment de novo. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. We will affirm the district court "where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. (internal quotation marks and citation omitted). "The party moving for summary judgment has the initial burden of establishing a prima facie case for summary judgment by presenting such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted." City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 14, 150 N.M. 428, 260 P.3d 414 (internal quotation marks and citation omitted). Once the movant meets this burden, "the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Romero, 2010-NMSC-035, ¶ 10 (internal quotation marks and citation omitted).
{8} This Court reviews issues of statutory interpretation de novo. Faber v. King, 2015-NMSC-015, ¶ 8, 348 P.3d 173. We construe a statute "in light of its purpose and interpret it to mean what the Legislature intended it to mean, and to accomplish the ends sought to be accomplished by it." Id. (internal quotation marks and citation omitted). "In discerning the Legislature's intent, we are aided by classic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended." Id. ¶ 9 (alteration, internal quotation marks, and citation omitted). "We examine the overall structure of the statute and its function in the comprehensive legislative scheme." Id.
{10} Plaintiff argues that his verbal and written objection to the proposed employee discipline and pay restructuring "qualify for protection" under the WPA. Defendants continue to assert, as they did in the district court, that Plaintiff "was communicating about issues squarely within his written job description, about which he had little personal knowledge and which were personal to his own employment situation, and was communicating to his direct supervisor only, and to no one else" and, therefore, he did not engage in a protected disclosure. We first analyze Plaintiff's communications regarding the employee discipline and then turn to the salary restructuring issue.
{11} Plaintiff contends he was wrongfully terminated as a result of his communications regarding employee discipline, but he offers no argument or authority to explain why his objection to the employee discipline is protected under the WPA. Plaintiff's sole basis for this unsupported assertion is that, after he objected to the proposed discipline, the Superintendent "began retaliating against [Plaintiff] and alienating him from his work and colleagues." Because Plaintiff's argument is undeveloped, we do not address it further. See State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (); State v. Stephenson, 2015-NMCA-038, ¶ 24, 346 P.3d 409 (); see also Rule 12-318(A)(4) NMRA ().
{12} Plaintiff made two communications in response to the proposed employee salary restructuring, one in writing and one verbally. Plaintiff's written communication, which he concedes was made in response to the negative performance evaluation, alleged that RISD violated "Department of Labor law, EEOC directives and RISD Policy." We disagree with Plaintiff that this communication was a protected activity under the WPA.
{13} Wills is instructive. In that case, the plaintiff was also terminated by a public employer after allegedly communicating about an improper or unlawful act. 2015-NMCA-105, ¶ 4. The Wills plaintiff filed a complaint seeking past due salary and alleging his employer breached the employment contract. Id. The public employer terminated the plaintiff's employment four days later. Id. The plaintiff...
To continue reading
Request your trial