Ulibarri v. State

• Decision Date: 10 February 2006
• Docket Number: No. 29,045.,29,045.
• Citation: 2006 NMSC 009,131 P.3d 43
• Parties: Leslie ULIBARRI, M.A., Plaintiff-Appellant, v. STATE of New Mexico Corrections Academy, Defendant-Appellee.
• Court: New Mexico Supreme Court

131 P.3d 43

2006 NMSC 009

Leslie ULIBARRI, M.A., Plaintiff-Appellant, v. STATE of New Mexico Corrections Academy, Defendant-Appellee.

No. 29,045.

Supreme Court of New Mexico.

February 10, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel M. Faber, Albuquerque, NM, for Appellant.

Gilkey & Stephenson, P.A., George Christian Kraehe, Barbara Stephenson, Albuquerque, NM, for Appellee.

OPINION

MINZNER, Justice.

{1} This is an appeal of the district court's grant of summary judgment and dismissal of Plaintiff Leslie Ulibarri's complaint alleging violations of the New Mexico Human Rights Act, NMSA 1978, § 28-1-1 (1969) ("NMHRA"), by Defendant, the State of New Mexico Corrections Academy. We conclude that Defendant was entitled to judgment as a matter of law, that the procedural arguments raised by Plaintiff are without merit, and we affirm.

FACTS

{2} Because Plaintiff challenges the district court's grant of summary judgment in favor of Defendant, we recite the facts in the light most favorable to Plaintiff "and draw all reasonable inferences in support of a trial on the merits." Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 12, 135 N.M. 539, 91 P.3d 58 (quoting Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 18, 123 N.M. 752, 945 P.2d 970). Plaintiff worked for Defendant as a psychologist from October 1, 2001 to June 7, 2002. Shortly after she was hired, the Academy Director, Alan Shuman, promised her a raise. Plaintiff believed that Shuman had the power or authority to give her this raise. Through November and December of 2001, Shuman made it increasingly clear that he was sexually attracted to Plaintiff. While dining with Plaintiff, following a work related trip to Los Lunas, Shuman giggled and smiled oddly. He later told her that he was thinking about them "being together." On another occasion, he told Plaintiff "[y]our eyes are really beautiful." At the office, Shuman told Plaintiff that he was sexually attracted to Hispanic women, and on another occasion told Plaintiff "[y]ou smell delicious." Shuman also sent Plaintiff emails of virtual flowers and chocolates with personal messages attached.

{3} Finally, on December 10, 2001, Plaintiff and Shuman drove to Hobbs for a work related audit. Shuman asked Plaintiff if she wanted to stop at a "romantic" bed and breakfast. He also asked Plaintiff "[d]o you want to mess around?" and "[d]o you want to have a relationship?" Plaintiff declined. The next day, when returning to Albuquerque, Shuman was concerned that his car was having trouble but hesitated to call for assistance, explaining "[m]y wife doesn't know you are with me."

{4} As a result of these comments, Plaintiff felt increasingly uncomfortable at work. Plaintiff reported to her supervisor, Stan Wilson, that Shuman had propositioned her, but requested that he not tell anyone else, or take any further action. She started wearing scarves, and she told Wilson that she was afraid Shuman would retaliate against her. Although Shuman did not engage in any other behavior that Plaintiff considered sexually harassing or offensive after December 10, 2001, he did increase his criticism of Plaintiff, asking that she keep her in/out marker properly placed, and instructing her that she needed to try to be at work by eight in the morning. Shuman had not previously expressed any concern about the in/out board or Plaintiff's timeliness. Shuman also asked Wilson "What does [Plaintiff] actually do here?" All of these comments were made prior to January 25, 2002. On June 7, 2002, after finding another position, Plaintiff resigned. On learning the news, Shuman commented, "I'm glad I didn't give her that raise that she wanted."

{5} While Plaintiff worked for the Defendant, Shuman and the then-Deputy Secretary of Corrections, had an agreement to "watch each other's back," which Plaintiff contends helped to create a permissive atmosphere and encouraged inappropriate behavior. Shuman was known to have "had improper working relationships with some of the people he supervised." Plaintiff contends that Defendant took no steps to correct Shuman's behavior.

{6} On November 21, 2002, Plaintiff filed a complaint with the New Mexico Human Rights Division and the Equal Employment Opportunity Commission, alleging quid pro quo sexual harassment, hostile work environment sexual harassment, constructive discharge, and retaliation. The district court granted Defendant's motion for summary judgment with respect to the quid pro quo sexual harassment and constructive discharge claims, and following Defendant's motion for reconsideration, the court granted the motion for summary judgment in its entirety. On appeal, Plaintiff argues that she presented genuine issues of material fact regarding her quid pro quo sexual harassment, hostile work environment sexual harassment, constructive discharge, and retaliation claims. Plaintiff also raises two procedural claims, arguing that the trial court erred in granting Defendant's motion for reconsideration and in denying Plaintiff's reply and motion for reconsideration without a hearing.

DISCUSSION

{7} We review the district court's grant of summary judgment de novo. Ocana, 2004-NMSC-018, ¶ 12, 135 N.M. 539, 91 P.3d 58. Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 1-056(C) NMRA 2006. When reviewing a motion for summary judgment, we view the facts in the light most favorable to the non-moving party. Ocana, 2004-NMSC-018, ¶ 12, 135 N.M. 539, 91 P.3d 58.

{8} The parties agree that the relevant statute of limitations is set out in Title VII of the Civil Rights Act of 1964 and states that a charge of discrimination must be filed within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1) (2000); see also NMSA 1978, § 28-1-10(A) (2005) (requiring filing of a complaint within 300 days of the alleged act) and NMSA 1978, § 28-1-10(A) (1995) (requiring filing within 180 days).¹ Plaintiff filed her complaint on November 21, 2002, so events prior to January 25, 2002 fall outside the 300 day limitation period.

{9} While Plaintiff concedes that her sexual harassment and retaliation claims are based on events prior to January 25, 2002, she argues that these events should nonetheless be considered under the continuing violation doctrine, an equitable doctrine permitting a plaintiff to bring an otherwise untimely claim. Plaintiff contends that the harassing acts continued until her resignation. In 2002, the United States Supreme Court noted the various approaches taken by the Circuit Courts regarding whether acts falling outside the statutory time period for filing charges are actionable under Title VII. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107-08, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Court observed that many unlawful employment practices are defined by statute and take place at an identifiable time. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." Id. at 114, 122 S.Ct. 2061. These defined acts each constitute separate, actionable unlawful employment practices and a charge covering these discrete acts must be filed within the appropriate time period. Id. Therefore, the Court concluded that the clear language of Title VII requires that charges related to discrete acts be filed within the statutory time period and rejected the use of equitable doctrines to extend the statutory time period. Id. at 115, 122 S.Ct. 2061.

{10} Unlike discrete acts, hostile environment cases involve repeated conduct over days or years and individual acts of harassment may not be separately actionable. Hostile environment claims are based on the cumulative effects of these acts, and these separate acts constitute a single unlawful employment practice: the practice of requiring an employee to work in a discriminatory, hostile or abusive environment. Id. The Court concluded that the practice of permitting a hostile work environment can be said to have "occurred" at the time of any act contributing to the hostile environment. Therefore, if one act contributing to a hostile environment claim occurred within the filing period, all acts creating the hostile environment may be considered. Id. at 117, 122 S.Ct. 2061.

{11} Although we recognize that we are not bound by the Court's decision in Morgan when interpreting the New Mexico Human Rights Act, we find the opinion persuasive and adopt a similar approach to time limitations under the NMHRA.² We therefore consider whether Plaintiff's claims can be construed as discrete unlawful employment practices, which must fall entirely within the statutory period, or as a cumulative series of acts constituting a single unlawful employment practice, which may all be considered if any one act contributing to Plaintiff's claim falls within the statutory period. Plaintiff argues that Shuman's comment, "I'm glad I didn't give her that raise that she wanted," was the last in a series of acts contributing to a hostile environment. This comment, made after Plaintiff's resignation, to a third party, could not in itself contribute to the hostile environment. It may, however, support an inference that Shuman created a hostile environment by withholding Plaintiff's raise. Even if we infer from this comment that Shuman's harassment in the form of withholding a promised raise continued as long as she was employed by the Academy, it is not clear that this should be considered an act contributing to a hostile environment, rather than a discrete discriminatory act. In addition, summary judgment was proper as to each of Plaintiff's claims, which are discussed below, even if the time barred events are considered.

{12} First, Plaintiff has not shown that she was subject to a hostile work environment. A hostile environment is created "when the offensive conduct `has the purpose or effect of unreasonably interfering with...