Walton v. N.M. State Land Office, CIV 13–0343 JB/KBM.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Citation: 113 F.Supp.3d 1178
• Docket Number: No. CIV 13–0343 JB/KBM.,CIV 13–0343 JB/KBM.
• Parties: Peggy WALTON, Plaintiff, v. NEW MEXICO STATE LAND OFFICE, Ray Powell, Donald Britt, and Delma Bearden, Defendants.
• Decision Date: 01 July 2015

113 F.Supp.3d 1178

Peggy WALTON, Plaintiff,
v.
NEW MEXICO STATE LAND OFFICE, Ray Powell, Donald Britt, and Delma Bearden, Defendants.

No. CIV 13–0343 JB/KBM.

United States District Court, D. New Mexico.

Filed July 1, 2015.

113 F.Supp.3d 1183

Jack N. Hardwick, Sommer, Udall, Sutin, Hardwick & Hyatt, Santa Fe, NM, for Plaintiff.

Scott P. Hatcher, Hatcher & Tebo, Santa Fe, NM, for Defendants.

SUPPLEMENTAL MEMORANDUM OPINION¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment on Plaintiff's Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights, filed November 6, 2013 (Doc. 38)("MSJ"). The Court held hearings on April 9, 2014, and April 10, 2014. The primary issues are: (i) whether Plaintiff Peggy Walton was engaged in a protected activity to warrant protection under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and under the New Mexico Human Rights Act, N.M. Stat. Ann. § 28–1–1 ("NMHRA"); (ii) whether a reasonable jury could find that there is a causal connection between the adverse action taken against Walton and her engagement in the protected activity; (iii) whether Walton's complaints to Defendant Donald Britt, the Assistant Commissioner over the New Mexico State Land Office's ("Land Office") Commercial Resource Division, constituted a protected

113 F.Supp.3d 1184

disclosure under the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. § 10–16C–1 ("NMWPA"); and (iv) whether adverse action was taken against Walton because of a protected disclosure under the NMWPA. The Court will grant the MSJ as it pertains to Walton's Title VII and NMHRA retaliation claims, because Walton has not presented evidence establishing a causal connection between her engagement in a protected activity—reporting Delma Bearden's alleged misconduct—and the adverse action taken against Walton—her termination. Additionally, the Court will grant the MSJ as it pertains to Walton's NMWPA claim, because Walton has not produced evidence establishing a connection between her protected disclosure and the adverse action taken against her.²

LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES

"Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin." Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (citing 42 U.S.C. §§ 2000e–2, 2000e–3 ). The Court has noted that Title VII generally protects individuals from employers' improperly motivated adverse treatment in the workplace: "Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Farley v. Leavitt, No. CIV 05–1219 JB/LFC, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007) (Browning, J.)(quoting 42 U.S.C. § 2000e–2(a)(1) ) (internal quotation marks omitted)(alterations omitted). With the 1972 amendments to the statute, Title VII's protections apply to federal and private employees. See Brown v. Gen. Servs. Admin., 425 U.S. at 825–26, 96 S.Ct. 1961 (citing 42 U.S.C. § 2000e(b) ).

At the motion-to-dismiss stage, the plaintiff need not plead facts stating a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to state a plausible claim for relief:

[A]lthough the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 ... (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–15, 122 S.Ct. 992, 152 L.Ed.2d 1 ... (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.

Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (4th Cir.2009) (unpublished)(citing Jordan v. Alternative Res. Corp., 458 F.3d 332, 346–47 (4th Cir.2006) ). See Gerald v. Locksley, 849 F.Supp.2d 1190, 1221 (D.N.M.2011) (Browning, J.)("A civil rights plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green ... to survive a motion to dismiss. Nevertheless, the plaintiff retains the burden to allege facts sufficient to state all the elements of her claim." (internal quotation marks omitted) (alterations omitted)(quoting Prince–Garrison v. Md. Dep't of Health and Mental Hygiene, 317 Fed.Appx. 351, 353 (4th Cir.2009) (unpublished))). See also Messina v. Kroblin

113 F.Supp.3d 1185

Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990) ("McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict....").

1. Reverse Discrimination.

Title VII "proscribe[s] racial discrimination ... against whites on the same terms as racial discrimination against nonwhites." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279–80, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). In these reverse-discrimination cases, the protected-class requirement for a prima facie case under McDonnell Douglas Corp. v. Green is substituted for the requirement that the plaintiff show facts to support an inference that "the defendant is one of those unusual employers who discriminates against the majority...." Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir.1992). See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1149 (10th Cir.2008) ("When plaintiff is a member of a historically favored group, by contrast, an inference of invidious intent is warranted only when ‘background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ " (quoting Notari v. Denver Water Dept., 971 F.2d at 589 )).

2. Law on Claims for a Hostile Work Environment.

"To establish a prima facie case of hostile work environment harassment, a plaintiff must show that ‘under the totality of circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.’ " Bloomer v. United Parcel Serv., Inc., 94 Fed.Appx. 820, 825 (10th Cir.2004) (unpublished)³ (quoting Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998) ). See Carter v. Mineta, 125 Fed.Appx. 231, 238 (10th Cir.2005) (unpublished); Mitchell v. City & Cnty. of Denver, 112 Fed.Appx. 662, 671 (10th Cir.2004) (unpublished). To establish a hostile-work-environment claim, "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and

113 F.Supp.3d 1186

create an abusive working environment." Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (citations omitted) (internal quotation marks omitted). "A discriminatory and abusive environment must affect the employee's work environment so substantially as to make it intolerable for her to continue...." Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.1996) (holding that a work environment did not contain "pervasive" harassment when the plaintiff made general allegations of frequent "sexual slurs" and the only specific incident cited involved a co-worker grabbing the plaintiff).

"The mere utterance of a statement which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir.1995) (alteration omitted) (internal quotation marks omitted)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ). A plaintiff must allege more than " ‘a few isolated incidents of racial enmity’ or ‘sporadic racial slurs.’ " Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005) (citation omitted)(quoting Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994) ). "Instead, ‘there must be a steady barrage of opprobrious racial comments.’ " Chavez v. Mexico, 397 F.3d at 832 (quoting Bolden v. PRC, Inc., 43 F.3d at 551 ).

The Tenth Circuit has stated that "[p]ervasiveness and severity are independent and equal grounds" upon which a plaintiff may establish this element of a hostile-work-environment claim. Witt v. Roadway Express, 136 F.3d at 1432 (addressing a hostile-work-environment claim under 42 U.S.C. § 1981 ). See Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir.1997) (citing Durham v. Xerox Corp., 18 F.3d 836, 838–39 (10th Cir.1994), for the proposition that "standards and burdens under § 1981 are the same as those under Title VII"). Moreover, the plaintiff must demonstrate that the work environment was objectively and...