May v. Cockman, CIV. No. 13-1021 GBW/KK

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtGREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE Presiding by consent
PartiesTHOMAS MAY, Plaintiff, v. MATTHEW COCKMAN, et al., Defendants.
Decision Date28 January 2016
Docket NumberCIV. No. 13-1021 GBW/KK

THOMAS MAY, Plaintiff,
MATTHEW COCKMAN, et al., Defendants.

CIV. No. 13-1021 GBW/KK


January 28, 2016


This matter is before the Court on Defendants' first and second Motions for Summary Judgment and supporting Memorandum Briefs. Docs. 52, 69. Having reviewed the parties' briefing (docs. 53, 54, 80, 82) and the relevant law, I will GRANT the Motions.


A. Procedural Background

Plaintiff brought this action in New Mexico's Eleventh Judicial District, contending that his dismissal involved violations of state and federal law including defamation, retaliation, racial discrimination, and conspiracy. See doc. 3-1, Ex. A. Defendants removed the case to this Court. See doc. 3. On October 29, 2013, Defendants moved for dismissal of Counts I, V, VII, XIV, and XV of Plaintiff's Complaint. Doc. 7. The Court granted dismissal for each of these counts, with the exception of Count I.

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Doc. 68. On May 26, 2015, Defendants moved for summary judgment as to Counts II, III, IV, VI, VIII, IX, X, XI, XII, XIII, XVI, and XVII. Doc. 52. Following this Court's ruling on their motion to dismiss, Defendants also moved for summary judgment as to Count I. Doc. 69.

B. Undisputed Facts

1. Plaintiff Thomas May is a former public defender with the Aztec office of the New Mexico Public Defenders Department (hereinafter "NMPDD") who was hired on October 15, 2012, and dismissed from employment on August 20, 2013. Doc. 3-2, Ex. H.1

2. Plaintiff's entire tenure at NMPDD fell within the one-year probationary period for public defender employees set forth by New Mexico regulation. N.M. Admin. Code (A) (7/1/2015) (stating that "[a] probationary period of one year is required of all employees unless otherwise provided for by these rules").

3. Plaintiff cites two protected activities which occurred while he was employed at the NMPDD that allegedly led to adverse action against him. First, Plaintiff began to complain about illegal activities in the workplace as well as the high turnover of female and racial minority employees. Doc. 3-1, Ex. A at

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9. Second, Plaintiff provided advice and assistance to three other employees, Jeanie Hatch, Kindahl Roe, and Celesty Tsosie, in pursuing grievances against their employer relating to racial and gender discrimination. Doc. 3-1, Ex. A at 8-12; see also doc. 53-1 at 13. This assistance included aiding these co-workers in obtaining union representation, filing various intra-departmental grievances and EEOC complaints, and sending rebuttal letters contesting "fabricated statements" in the content of poor performance evaluations. Doc. 3-1, Ex. A at 8-12; see also doc. 3-2, Ex. A-B; Ex. E; Ex. G; Ex. J-K.

4. On July 12, 2013, Plaintiff received a New Mexico State Personnel Board Employee Evaluation performed by his supervisors. This evaluation provided feedback regarding multiple alleged deficiencies with Plaintiff's job performance. Doc. 3-2, Ex. D.

5. On July 12, 2013, Plaintiff met with his supervisor, Managing Attorney Stephen Taylor, regarding Plaintiff's written employee evaluation. Doc. 3-1, Ex. A at 10; See also doc. 53-1 at 6. At this meeting, Plaintiff "declined to discuss the untruths" upon which the evaluation was based. Doc. 3-1, Ex. A at 10; doc. 53-1 at 6.

6. Instead, Plaintiff opted to write a rebuttal letter contesting some, but not all of the allegations levied against him, which he delivered to both Taylor and

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District Defender Matthew Cockman on August 1, 2013. Doc. 3-1, Ex. A at 10; See doc. 53 at 14-20.

7. On August 20, 2013, Taylor and Cockman gave Plaintiff a letter of dismissal. Doc. 3-2, Ex. H.


Summary judgment is appropriate where the moving party demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (internal quotation marks omitted)). Once the movant meets this burden, the non-moving party is required to designate specific facts showing that "there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.

The Court's role is not to weigh the evidence or determine credibility, but rather merely to assess the threshold issue of whether a genuine issue exists as to material facts. See Anderson, 477 U.S. at 249, 255. "[T]o survive the . . . motion, [the nonmovant] need only present evidence from which a jury might return a verdict in his favor." Id. at

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257. Further, the Court must resolve reasonable inferences and doubts in favor of the nonmovant, and construe evidence in the light most favorable to the nonmovant. See Hunt v. Cromartie, 526 U.S. 541, 551-54 (1999). However, "viewing the evidence in the light most favorable to the nonmovant, it is not enough that the evidence be merely colorable or anything short of significantly probative." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991) (internal quotations omitted); see also Anaya v. CBS Broad. Inc., 626 F. Supp. 2d 1158, 1197 (D.N.M. 2009) ("The mere existence of a scintilla of evidence will not avoid summary judgment.").


Plaintiff's first cause of action states that Defendants took retaliatory actions against him due to his assistance in opposing unlawful discrimination against his co-workers. Doc. 3-1, Ex. A at 13-14. He further claims that his discharge had no legitimate reason and was intended to stymie his actions defending the public good, in violation of the New Mexico Human Rights Act ("NMHRA"). Id.

The NMHRA prohibits employers from "engag[ing] in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act." N.M. Stat. Ann. § 28-1-7. The language of this statute was intended to closely mirror its federal analog, Title VII of the Civil Rights Act of 1964. Rodriguez v. New Mexico Dep't of Workforce Sols., 278 P.3d 1047, 1050 (N.M.

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Ct. App. 2012). Due to the similarities of these laws, the New Mexico Supreme Court has instructed that "analysis of claims under the Human Rights Act is guided by the federal courts' interpretation of unlawful discrimination under Title VII." Id. See also Garcia-Montoya v. State Treasurer's Office, 16 P.3d 1084, 1099 (N.M. 2001). This Court will thus analyze Plaintiff's claim under the federal standards for interpreting Title VII actions.

A plaintiff can state a valid Title VII claim for retaliation by presenting either direct or circumstantial evidence. Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015). Under the direct/mixed motives approach, the plaintiff may directly show that the adverse employment decision was based on retaliatory animus. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011). Unlike Title VII claims of status-based discrimination, in which a plaintiff need only demonstrate that animus was a motivating factor, a plaintiff seeking relief under a retaliation theory must demonstrate that retaliatory animus was the "but-for" cause of an adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532-33 (2013). If a plaintiff satisfies their burden to provide direct evidence of retaliation, "the burden shifts to the employer to demonstrate that it would have taken the same action irrespective of the retaliatory motive." Twigg, 659 F.3d at 998.

If the plaintiff cannot establish retaliation directly, they may instead present circumstantial evidence, evaluated under the three-part framework established in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), to prove retaliation indirectly. See Thomas, 803 F.3d at 514; Twigg, 659 F.3d at 998. As the Tenth Circuit explained:

Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of retaliation by demonstrating that (1) he or she engaged in a protected activity, (2) he or she suffered a material adverse action, and (3) there was a causal connection between the protected activity and the adverse action. The burden then shifts to the employer to articulate a legitimate non-retaliatory reason for taking the adverse employment action before ultimately shifting back to the plaintiff to establish that the employer's explanation is pretextual—i.e., unworthy of belief.

Thomas, 803 F.3d at 514 (internal citations omitted).

A. Direct Evidence Approach

To establish a cause of action under the direct approach, a plaintiff must "present[] proof of 'an existing policy which itself constitutes discrimination . . . .'" Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir. 1996) (quoting Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990). In this case, the policy of NMPDD is unquestionably opposed to discrimination. The New Mexico Administrative Code states that NMPDD employment decisions must be made "without regard to race, color, religion, national origin, ancestry, sex, sexual orientation, age, or mental or physical disability . . . ." N.M. Admin. Code (B). Further, affidavits from Defendants Taylor and Cockman establish their acknowledgment of NMPDD's nondiscrimination policy. See doc. 52-2, Ex. C at 2; Ex. D at 2. In response, Plaintiff asserts that the Aztec Office employed a de facto policy of discrimination, as

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several women and...

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