Lerma v. State
| Docket Number | A-1-CA-39774 |
| Decision Date | 29 August 2023 |
| Parties | MANUEL LERMA, Plaintiff-Appellant, v. STATE OF NEW MEXICO and NEW MEXICO DEPARTMENT OF CORRECTIONS, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY James Lawrence Sanchez, District Court Judge
Donald G. Gilpin
Kenneth C. Detro
Christopher P. Machin
Albuquerque, NM
for Appellant
Stiff Garcia & Associates, LLC
John S. Stiff
Julia Y. Parsons
Albuquerque, NM
for Appellees
{¶1} Plaintiff Manuel Lerma appeals a district court order granting summary judgment in favor of Defendants State of New Mexico and New Mexico Department of Corrections (DOC) on Mr. Lerma's claim of retaliation under New Mexico's Whistleblower Protection Act (NMWPA).[1] See NMSA 1978, §§ 10-16C-1 to -6 (2010). Mr. Lerma's claims of error require us to assess the merits of DOC's four summary judgment theories: (1) that Mr. Lerma's communications to DOC are not protected by the NMWPA; (2) that DOC did not take any "adverse employment action," § 10-16C-2(D), against Mr. Lerma, as required by Section 10-16C-3; (3) that a retaliatory motive did not cause DOC to take the actions complained of by Mr. Lerma, see § 10-16C-3; and (4) that DOC established an affirmative defense because it took the actions complained of by Mr. Lerma for a "legitimate business purpose unrelated to conduct prohibited pursuant to the [NMWPA]" and "retaliatory action was not a motivating factor." Section 10-16C-4(B). Because we conclude that summary judgment was unwarranted under all four of DOC's theories, we reverse and remand for further proceedings.
{¶2} This appeal presents significant legal questions, including questions of first impression, about the type of conduct protected by the NMWPA. As to the questions of first impression, we conclude that communications made through ordinary workplace channels or as part of an employee's normal work duties are not excluded from protection, and that an employee's motive and intent have no bearing on whether a communication is protected. We also conclude that whether a communication is protected by the NMWPA does not hinge on whether the communication pertains to a matter of public concern or on whether the communication benefits the public. To reach this conclusion, we review and ultimately reject some of the reasoning in Wills v. Board of Regents of the University of New Mexico, 2015-NMCA-105, 357 P.3d 453.
{¶3} Because summary judgment was entered for DOC, we recite the facts in the light most favorable to Mr. Lerma. See Ulibarri v. N.M. Corr. Acad., 2006-NMSC-009, ¶ 2, 139 N.M. 193, 131 P.3d 43. In 2018, Mr. Lerma, a corrections officer employed by the DOC, transferred from Southern New Mexico Correctional Facility to Central New Mexico Correctional Facility. Upon assuming his new post at Central, Mr. Lerma was tasked with operation of the prison's outer sally ports-the two sets of security gates where vehicles enter and exit. Mr. Lerma believed that, for safety purposes, the "standard procedure" was to keep at least one of the two sally port gates closed at all times. But some of Mr. Lerma's coworkers in the transport department thought he was being "too strict" with the sally port gates. He testified that these coworkers wanted him to "leave both of them open so they could come and go as they pleased." Mr. Lerma testified that he told his supervisor about this disagreement, but that "nothing was ever done."
{¶4} Mr. Lerma and his coworkers also had ongoing interpersonal difficulties that eventually led to violence. Mr. Lerma believed these difficulties were because his coworkers "had an issue with [him] for being from Southern," and Central was a "tight-knit community" in which outsiders often experienced harassment. One day after work, Mr. Lerma was leaving the facility when two of his coworkers-a lieutenant and a fellow officer-told Mr. Lerma that "if [he] wanted to handle the problem that [they] had, for [Mr. Lerma] to follow them." Once the three were on the road in their respective cars, the officer and the lieutenant "kept blocking [Mr. Lerma] in" and following him as he tried to get away from them. Eventually, the three vehicles came to a stop in an empty lot. Mr. Lerma got out and told the lieutenant-his direct supervisor-that the lieutenant "was making it into a bigger deal than what it should be," and that, as a supervisor, "he should know better." While Mr. Lerma was speaking to the lieutenant, the officer came up behind Mr. Lerma. When Mr. Lerma turned around, the officer "was standing there with his fists clenched," and a fight ensued. The lieutenant stood nearby filming the fight on his state-issued cell phone. The officer and the lieutenant eventually departed, leaving Mr. Lerma on the ground.
{¶5} The next work day, Mr. Lerma reported the fight to a different supervisor- the director of the Security Threat Investigative Unit at Central-and the prison leadership began to investigate. In the course of the investigation, Mr. Lerma told various people, including a pair of deputy wardens, what happened. After meeting with the deputy wardens-and one day after he reported the fight-DOC reassigned Mr. Lerma from his post at the sally port to the prison's mailroom. Mr. Lerma was given no reason for the move and felt he was "being punished." Mr. Lerma testified that following his reassignment, his compensation decreased because he was "very, very, limited" in the amount of overtime he could work in the mailroom, and that his supervisors were aware that the reason he transferred to Central was to work more overtime. In addition to transferring Mr. Lerma, DOC limited where Mr. Lerma was allowed to go in the facility. The deputy warden who made the initial decision to move Mr. Lerma to the mailroom testified that he "wanted [Mr. Lerma] . . . closer by me so I could keep an eye out for him" following his "report[] to us that he was in a physical altercation."
{¶6} Mr. Lerma filed a complaint for damages under the NMWPA, alleging that he had communicated to DOC his "good faith belief that unethical and illegal conduct was occurring," and that as a result DOC "retaliated . . . by not allowing [Mr. Lerma] to receive overtime or other benefits." Mr. Lerma's theory of the case involved two discrete communications that he argued were protected under the NMWPA: his reporting of the disagreement regarding the operation of the sally port and his reporting of the after-work fight involving the officer and the lieutenant.
{¶7} DOC moved for summary judgment on four alternative theories: (1) Mr. Lerma's communications are not protected; (2) DOC did not take any adverse employment action against Mr. Lerma; (3) DOC did not act with a retaliatory motive; and (4) DOC had a legitimate business purpose for acting as it did after receiving Mr. Lerma's communications. The district court granted the motion without explaining which of these theories it accepted, stating only that "there is no genuine issue as to any material fact and that [DOC is] entitled to a [j]udgment as a matter of law." Mr. Lerma appeals.
{¶8} New Mexico courts "view summary judgment with disfavor preferring a trial on the merits." Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242 P.3d 280. "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; see also Rule 1-056(C) NMRA. We review summary judgment de novo, Ulibarri, 2006-NMSC-009, ¶ 7, "resolv[ing] all reasonable inferences in favor of the party opposing summary judgment," and "view[ing] the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits." Madrid v. Brinker Rest. Corp., 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (internal quotation marks and citation omitted).
{¶9} Where, as here, "alternative grounds for summary judgment have been presented to the [district] court," the court must "specify the grounds upon which the order is based." Rule 1-056(C). Because the order in this case does not conform to Rule 1-056(C), we are unable to discern which of DOC's alternative theories were accepted by the district court, and we must consider all four of them. We conclude that all lack merit, and we therefore reverse.
{¶10} In the district court, DOC argued that the NMWPA did not protect the communications at issue for three reasons: (1) they were "made as part of his normal duties made through normal channels as [a DOC] employee"; (2) Mr. Lerma could not "show his reporting was done with the intent of serving the public interest"; and (3) the communications did not pertain to a matter of public concern and that the communications primarily benefited Mr. Lerma rather than the public.[2] As we will explain, we do not believe that any of these arguments has merit.
{¶11} Although any analysis of what the Legislature intended to protect must be driven primarily by the plain language of the NMWPA, see Martinez v. Cornejo, 2009-NMCA-011 ¶ 11, 146 N.M. 223, 208 P.3d 443, DOC does not argue that the statutory text supports any of the arguments it presented in its summary judgment motion, and we find no support in that text or in the pertinent uniform jury instruction. As it...
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