Ulrike M. West v. N.M. Taxation

• Decision Date: 31 October 2010
• Docket Number: No. CIV 09–0631 JB/CEG.,CIV 09–0631 JB/CEG.
• Citation: 757 F.Supp.2d 1065
• Parties: Ulrike M. WEST, Plaintiff,v.NEW MEXICO TAXATION AND REVENUE DEPARTMENT and Phillip Salazar, Defendants.
• Court: U.S. District Court — District of New Mexico

757 F.Supp.2d 1065

Ulrike M. WEST, Plaintiff,

v.NEW MEXICO TAXATION AND REVENUE DEPARTMENT and Phillip Salazar, Defendants.

No. CIV 09–0631 JB/CEG.

United States District Court, D. New Mexico.

Oct. 31, 2010.

Paul Michael Gayle–Smith, Law Office of Paul M. Gayle–Smith, Las Cruces, NM, for Plaintiff.Paula Grace Maynes, James R. Wood, Miller & Stratvert P.A., Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendants' Motion for Summary Judgment, filed March 26, 2010 (Doc. 54); (ii) the Plaintiff's Motion for Summary Judgment and Supporting Memorandum, filed March 26, 2010 (Doc. 56); and (iii) Plaintiff's Amended Motion for Summary Judgment Amended Motion [sic], filed June 30, 2010 (Doc. 87). The Court held a hearing on August 30, 2010. The primary issues are: whether Plaintiff Ulrike West exhausted her administrative remedies; (ii) whether West has supported her retaliation claim under the First Amendment of the United States Constitution by presenting evidence establishing that she suffered a materially adverse employment action; (iii) whether West spoke about matters of public concern; and (iv) whether West suffered a materially adverse employment action under the Americans with Disabilities Act, 42 U.S.C. §§ 12201–12213 (“ADA”). The Court grants the Defendants' Motion for Summary Judgment in part, dismissing with prejudice all of West's retaliation claims. Having disposed of all of West's federal claims, the Court remands her remaining state-law claims to the Third Judicial District Court, Dona Ana County, State of New Mexico.

FACTUAL BACKGROUND

West was a Taxation and Revenue Department (“TRD”) employee. After graduating from NMSU with a degree in accounting, see Defendants' Memorandum in Support of Motion for Summary Judgment at 1, filed March 26, 2010 (Doc. 55) (“Defendants' Motion”), on February 8, 1999, TRD hired West as an entry-level tax auditor, and, because of her consistently successful performance ratings, West was promoted to Senior Tax Auditor, see, e.g., Deposition of Janice McGee at 6:1–6 (taken February 22, 2010), filed July 5, 2010 (Doc. 90–1); Defendant New Mexico Taxation and Revenue Department's Answer to Complaint for Civil Rights Violations ¶ 4, at 2, filed July 6, 2009 (Doc. 5); Defendant Phillip Salazar's Answer to Complaint for Civil Rights Violations ¶ 4, at 2, filed July 6, 2009 (Doc. 6). From 1999 to 2006, Janice McGee was West's Audit Supervisor. See, e.g., McGee Depo. at 6:10–11; Plaintiff's Memorandum in Support of Her Amended Motion for Summary Judgment ¶ 2, at 2, filed June 30, 2010 (Doc. 88) (“Plaintiff's Motion”) (setting forth this fact); Defendants' Response ¶ 1, at 4 (admitting this fact).¹

In March 2003, doctors diagnosed West with Relapsing Remitting Multiple Sclerosis (“MS”). See, e.g., Affidavit of Ulrike M. West ¶ 7, at 2 (executed June 30, 2010), filed June 30, 2010 (Doc. 88–1); Plaintiff's Motion ¶ 3, at 2; Defendants' Motion at 1. West made no secret of her diagnosis, and her supervisors at TRD were aware of her illness. See, e.g., West Aff. ¶ 7, at 2–3; Defendants' Motion at 1. When West was initially diagnosed with MS, she made written requests of the Defendants to be exempted from trips out of state and to use of her own vehicle when driving within the state. See McGee Depo. at 27:22–28:15; Plaintiff's Motion ¶ 4, at 2 (setting forth this fact); Defendants' Response ¶ 1, at 4 (not specifically controverting this fact). These requests were granted within two weeks without opposition. See, e.g., McGee Depo. at 28:14–18; id. at 37:14–23; Plaintiff's Motion ¶ 5, at 2 (setting forth this fact); Defendants' Response ¶ 1, at 4 (not specifically controverting this fact). With the accommodation of being exempted from driving out-of-state and allowed to drive her personal vehicle, West was able “to do her job well.” McGee Depo. at 29:17–20. See Plaintiff's Motion ¶ 6, at 2 (setting forth this fact); Defendants' Response ¶ 1, at 4 (not specifically controverting this fact).

Before March of 2006, West worked as a field auditor, which required her to travel approximately six weeks a year. See Deposition of Ulrike West at 54:12–15 (taken December 9, 2009), filed March 26, 2010 (Doc. 55–1). Because, in part, of the discomfort attendant the travel expected of West and of all field auditors, she was made an Auditor Reviewer in the Audit and Compliance Division of TRD in March 2006. See, e.g., McGee Depo. at 9:6–13; Affidavit of Phillip Salazar ¶ 3, at 2 (executed March 26, 2010), filed March 26, 2010 (Doc. 55–6); West Depo. at 52:18–54:11; Defendants' Motion at 1. West worked in Las Cruces, New Mexico, and she was the only Auditor Reviewer not based in Albuquerque. See, e.g., Salazar Aff. ¶ 3, at 2; West Aff. ¶ 16, at 4; Defendants' Motion at 1. Heidi Chowning was West's immediate supervisor in West's Auditor Reviewer role from March 2006 until mid-August 2008, and Laurie Cubbins was West's immediate supervisor from mid-August 2008 through August 2009. See, e.g., Salazar Aff. ¶ 2, at 1; Defendants' Motion ¶ 1, at 4. Chowning was located in Albuquerque while she supervised West. See, e.g., West Depo. at 55:13–56:8; Defendants' Motion at 2.

As a result of becoming an Auditor Reviewer, West was no longer required to travel to perform audits. See, e.g., West Depo. at 52:18–53:4; id. at 54:3–11; Defendants' Motion at 1. Instead, she revised audits that the field auditors from TRD's Las Cruces office performed. See, e.g., West Depo. at 52:18–53:4; Defendants' Motion at 1. West's only travel requirement as an Auditor Reviewer was to travel to Albuquerque once or twice a year to attend training sessions or group meetings of the Auditor Reviewers. See, e.g., Salazar Aff. ¶ 9, at 4; West Depo. at 55:13–20; Defendants' Motion at 1–2.

1. Events Relating to West's Previously Settled Disability Discrimination Claim.

On approximately March 13, 2007, West requested ergonomic office furniture to accommodate her MS. See, e.g., Charge of Discrimination (dated December 11, 2007), filed July 5, 2010 (Doc. 90–5); Plaintiff's Motion ¶ 12, at 3 (setting forth this fact); Defendants' Response ¶ 2, at 4 (not specifically controverting this fact). The furniture West requested was identical to furniture that TRD provided to other employees, none of whom is believed to have made an accommodation request or to have been disabled. Plaintiff's Amended Response to Defendants' First Set of Interrogatories No. 2, at 3, filed July 17, 2010 (Doc. 96–7) (“Plaintiff's Interrogatories Answers”); Plaintiff's Motion ¶ 11, at 5 (setting forth this fact); Defendants' Response ¶ 2, at 4 (not specifically controverting this fact). On approximately July 3, 2007, the Defendants conducted an ergonomic study of West's workstation. See Salazar Aff. ¶ 5, at 2. On October 3, 2007, West sent an electronic mail to Mary Keener Beresford, Director of the New Mexico Governor's Commission of Disability, asking for clarification on the proper procedure for requesting an accommodation and expressing her frustration over the Defendants' response to her request for furniture. See Electronic Mail from Ulrike West to Mary Keener Beresford (dated October 2, 2007), filed July 5, 2010 (Doc. 90–2); West Aff. ¶ 7, at 3. On September 12, 2007, TRD ordered West a chair. See, e.g., McGee Depo. at 92:20–22; Plaintiff's Motion ¶ 14, at 4 (setting forth this fact); Defendants' Response ¶ 2, at 4 (not specifically controverting this fact). On November 15, 2007, West sent an electronic mail to Lynette Trujillo, Human Resources Bureau Chief, and Patricia Jauregui, Human Resources Supervisor, stating: “I hope you can understand that I am running out of patience and that I will take this to the next step if necessary.” Plaintiff's Interrogatories Answers No. 3, at 7. See Plaintiff's Motion ¶ 19, at 5 (setting forth this fact); Defendants' Response ¶ 3, at 4–5 (not specifically controverting this fact). Jauregui was concerned about West's complaints of discrimination. See, e.g., Jauregui Depo. at 31:25–32:1; Plaintiff's Response ¶ 3, at 8.² On November 16, 2007, West sent an electronic mail to Chowning stating: “And just so you know, I do feel discriminated against; not from you personally, but from the Department.” Plaintiff's Interrogatories Answers No. 3, at 7. See Plaintiff's Motion ¶ 20, at 5 (setting forth this fact); Defendants' Response ¶ 3, at 4–5 (not specifically controverting this fact).

West filed a Charge of Discrimination (453–2008–00310) with the Equal Employment Opportunity Commission (“EEOC”) on December 11, 2007, complaining that her request for ergonomic office furniture remained unfulfilled. See Doc. 90–5. TRD received the EEOC Charge at the end of December 2007. See, e.g., Plaintiff's Interrogatories Answers No. 2, at 3–4; Plaintiff's Motion ¶ 23, at 5 (setting forth this fact); Defendants' Response ¶ 3, at 4–5 (not specifically controverting this fact). In January 2008, Chowning forgot to approve West's request for leave, forward information to her, and to call her for meetings, which Chowning had not done previously. See, e.g., Plaintiff's Interrogatories Answers No. 2, at 3; Plaintiff's Motion ¶ 22, at 5 (setting forth this fact); Defendants' Response ¶ 4, at 5 (not specifically controverting this fact).³ On October 2, 2008, the EEOC determined that there was reasonable cause to believe TRD discriminated against West. See, e.g., EEOC Determination at 1 (dated October 2, 2008), filed July 5, 2010 (Doc. 90–7); Plaintiff's Motion ¶ 31, at 7 (setting forth this fact); Defendants' Response ¶ 7, at 6 (not specifically controverting this fact). After the EEOC's conciliation efforts proved unavailing, the United States and TRD reached a settlement agreement regarding West's failure-to-accommodate claim based on TRD not providing her ergonomic office furniture. See Settlement Agreement Between The United States of America and...