Velasquez v. Regents of N. N.M. Coll.

Decision Date28 September 2020
Docket NumberNo. A-1-CA-36781,A-1-CA-36781
Citation484 P.3d 970
Parties Melissa R. VELASQUEZ, Plaintiff-Appellee/Cross-Appellant, v. REGENTS OF NORTHERN NEW MEXICO COLLEGE, Defendant-Appellant/Cross-Appellee.
CourtCourt of Appeals of New Mexico

Moody & Stanford, P.C., Christopher M. Moody, Albuquerque, NM, for Appellee

Long, Komer & Associates, P.A., Mark E. Komer, Jonas M. Nahoum, Santa Fe, NM, for Appellant

IVES, Judge.

{1} Plaintiff Melissa Velasquez sued Defendant Northern New Mexico College pursuant to the New Mexico Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010). A jury found that Defendant violated the WPA and awarded damages to compensate Plaintiff for back pay and emotional distress, and the district court ordered Defendant to reinstate Plaintiff. The district court denied Defendant's motion for a new trial, remitted the damages awards, and denied Plaintiff's request for post-judgment interest on the back pay. Defendant appeals, and Plaintiff cross-appeals. Defendant argues that (1) the evidence does not suffice to support the jury's verdict with respect to the elements of protected conduct and retaliation, (2) the district court erroneously denied Defendant's motion for a new trial, (3) the district court erroneously ordered Defendant to reinstate Plaintiff, and (4) the WPA does authorize the award of back pay. Plaintiff argues that the district court erred by (5) ordering remittitur and (6) denying post-judgment interest on the back pay. We reverse the remittitur and post-judgment interest orders but otherwise affirm.

PROCEDURAL BACKGROUND

{2} At trial, Plaintiff sought to prove that Defendant removed her from her position as director of Defendant's campus in El Rito, New Mexico (El Rito campus), transferred her to another position, and then terminated her employment in retaliation for her communications to Defendant's administrators about Defendant's failure to approve expenditures necessary for the successful implementation of a plan to revitalize the El Rito campus. Plaintiff's position is that she communicated to Defendant that Defendant was "jeopardizing the entire revitalization project at El Rito" by not making relatively small expenditures, "that hundreds of thousands of federal tax dollars were at risk of being totally wasted," and that Defendant's actions prevented "the expenditure of federal funds that had already been approved for use[.]" Specifically, according to Plaintiff, the campus revitalization depended on (1) completing various federally funded laboratories and (2) funding logistical support necessary for events that Plaintiff had scheduled at the campus and for events she hoped to arrange. Plaintiff testified that she communicated to Defendant about the significant consequences of not funding these essential components of the revitalization effort and that Defendant retaliated against her by removing her from her position as campus director and later terminating her employment. Plaintiff also testified that her termination caused her to lose income and benefits and suffer emotional harm.

{3} Defendant argued to the jury that the WPA does not protect the types of communications Plaintiff made. Defendant also contended that it was not retaliating against Plaintiff when it transferred her to a new position and terminated her employment, and that it had legitimate business reasons for both actions. According to Defendant's witnesses, Defendant transferred Plaintiff based on her poor performance and terminated her based on a reduction in force.

{4} Defendant repeatedly asked the district court to conclude that Plaintiff's evidence was legally insufficient. At the close of Plaintiff's case, Defendant moved for judgment as a matter of law, arguing, among other things, that a reasonable jury could not find in favor of Plaintiff on the elements of protected conduct, retaliation, and back pay. The court denied the motion. Defendant then objected to instructing the jury on liability and damages and, at the close of the evidence, renewed its motion for judgment as a matter of law. The court allowed Plaintiff's claim to go to the jury.

{5} The jury concluded that Defendant had violated the WPA and returned a verdict for Plaintiff. It found by special verdict form that Plaintiff had communicated to Defendant about the occurrence of an improper act, that there was a reasonable basis in fact for the improper act, and that Defendant retaliated against Plaintiff because of a communication about that improper act. The jury awarded $239,451 to compensate Plaintiff for back pay for the two years and ten months between her termination and the time of trial and $180,000 to compensate her for emotional distress.

{6} After the district court entered a judgment based on the jury's verdict, the parties filed several motions. The district court denied Defendant's motion for new trial but granted its motion for remittitur, reducing the damages for back pay to $84,513 and for emotional distress to $90,000. The district court granted Plaintiff's motion for reinstatement but denied her request for post-judgment interest on the back pay damages. It then entered an amended judgment reflecting these rulings.

DISCUSSION
I. Substantial Evidence Supports the Jury's Verdict

{7} Defendant argues that Plaintiff did not introduce sufficient evidence that (1) her communications with college administrators constituted conduct that the WPA protects and (2) Defendant was retaliating against her when Defendant removed her from her position as campus director and transferred her to a new position and when it ultimately terminated her employment.

{8} Our task is to "review the evidence to determine whether there is evidence that a reasonable mind would find adequate to support a conclusion." Dart v. Westall , 2018-NMCA-061, ¶ 6, 428 P.3d 292 (internal quotation marks and citation omitted). We begin our analysis with the facts, "view[ing] the evidence in a light most favorable to the prevailing party and disregard[ing] any inferences and evidence to the contrary." Id. (internal quotation marks and citation omitted). We "defer to the jury's determination regarding the credibility of witnesses and the reconciliation of inconsistent or contradictory evidence." Id. (internal quotation marks and citation omitted). We then apply the law set forth in the jury instructions, which are not challenged on appeal and are therefore the law of the case. Id. To the extent that Defendant's challenge to the verdict requires us to interpret the WPA, our review is de novo. See Cates v. Mosher Enters., Inc. , 2017-NMCA-063, ¶ 14, 403 P.3d 687 ("We review interpretation of statutory provisions de novo.").

A. Summary of Facts

{9} Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could have found the following facts. Nancy Barcelo, President of Northern New Mexico College, had concerns about the El Rito campus, and one of the provisions of President Barcelo's employment contract involved revitalization of the campus. President Barcelo asked Plaintiff, who was working as Director of Adult Basic Education at the time, and Dr. James Biggs, the college's Director of Environmental Studies, to draft a plan for revitalizing the campus by creating an Innovation Center.

{10} Plaintiff and Dr. Biggs did so and, also at President Barcelo's request, presented a preliminary five-year plan for the Innovation Center to the college's Board of Regents and Dean's Council. Under the plan, the Innovation Center would include the El Rito Agroecology and Biological Research Station; the New Mexico Cultural Heritage, Sustainable Tourism, Ecological Education Center; the Northern New Mexico Land Policy and Acéquia Center; and the Hospitality and Culinary Education Center. The college would make the centers available to students, community members, and local agencies. The Innovation Center would also include laboratories devoted to soil testing, fire simulation, geographic information systems, a sustainable kitchen and greenhouse, and hazardous materials. Money to establish the labs would come from grants. As part of their presentation, Plaintiff and Dr. Biggs explained that the growth of the Innovation Center depended on Defendant committing to multi-year core funding, developing revenue center programs to strengthen the center's financial viability, building grant income, and developing and expanding earned income revenue streams.

{11} After Plaintiff and Dr. Biggs presented the plan, the Board of Regents indicated that it fully supported the initiative and was excited about the possibility of moving forward immediately. Defendant directed Plaintiff to implement the plan and, in February 2012, promoted her to Director of the El Rito campus.

{12} Through Plaintiff's efforts, Defendant obtained a federal grant, which included $265,000 for the labs at the El Rito campus. Defendant also obtained a state-funded grant for a wildland fire simulation lab. Some of the grant money was allocated for improvements to the college's greenhouse laboratory and kitchen, including purchases of a compost machine and a $100,000 greenhouse. As various labs approached completion, Plaintiff and Dr. Biggs increased the number of student groups visiting the campus. Because these groups paid the college for food and lodging, the college's revenue from bringing groups to the El Rito campus grew to at least twice as much as it had been before the revitalization efforts began.

{13} Defendant recognized Plaintiff's accomplishments and rewarded her for them. One witness testified that President Barcelo introduced Plaintiff "as a rising star at the institution" during a presentation Plaintiff made to the campus community in the summer of 2012. In April 2013, Plaintiff received a positive review from her supervisor, Dr. Anthony Sena, who served as Defendant's Provost at that time. Dr. Sena gave Plaintiff an average score of...

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4 cases
  • Delopez v. Bernalillo Pub. Sch.
    • United States
    • U.S. District Court — District of New Mexico
    • September 7, 2021
    ...upon the public employer's ability to accomplish its mission. Velasquez v. Regents of Northern New Mexico College , 2021-NMCA-007, ¶ 36, 484 P.3d 970. The NMWPA defines a retaliatory action as "any discriminatory or adverse employment action against a public employee in the terms and condit......
  • Peasnall v. Curry Cnty. Bd. of Cnty. Comm'rs
    • United States
    • Court of Appeals of New Mexico
    • September 27, 2021
    ...action was not a motivating factor." Section 10-16C-4(B) (emphasis added); see Velasquez v. Regents of N. N.M. Coll., 2021-NMCA-007, ¶ 43, 484 P.3d 970 (stating that juries may reject a defendant's affirmative defense to the WPA on the basis of "mixed motives, including a forbidden retaliat......
  • Klaus v. Vill. of Tijeras
    • United States
    • U.S. District Court — District of New Mexico
    • September 16, 2022
    ...upon the public employer's ability to accomplish its mission. Velasquez v. Regents of Northern New Mexico College, 2021-NMCA-007, ¶ 36, 484 P.3d 970. NMWPA defines a retaliatory action as “any discriminatory or adverse employment action against a public employee in the terms and conditions ......
  • Lerma v. State
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    • Court of Appeals of New Mexico
    • August 29, 2023
    ...Mexico's courts do not necessarily follow federal whistleblower precedent. See Velasquez v. Regents of N. N.M. Coll., 2021-NMCA-007, ¶ 31, 484 P.3d 970 ("[W]e have never concluded the protections of the [NM]WPA are identical to those of the federal statute in every respect or that we will i......

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