Walton v. New Mex. State Land Office, No. CIV 13–0343 JB/KBM.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING
Citation49 F.Supp.3d 920
PartiesPeggy WALTON, Plaintiff, v. NEW MEXICO STATE LAND OFFICE, Ray Powell, Donald Britt and Delma Bearden, Defendants.
Docket NumberNo. CIV 13–0343 JB/KBM.
Decision Date12 September 2014

49 F.Supp.3d 920

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 Sept. 12, 2014


Motions granted in part and denied in part.

[49 F.Supp.3d 923]

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

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


MEMORANDUM OPINION 1
JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court: on (i) 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”); and (ii) the Motion for Summary Judgment of Defendants' Ray Powell, David Britt and Delma Bearden as to Count VI of the Second Amended Complaint on Grounds of Qualified Immunity, filed November 27,

[49 F.Supp.3d 924]

2013 (Doc. 52)(“MSJ QI”). 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. § 28–1–7 (“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 Donald Britt (“Britt”) constituted a disclosure of a protected disclosure under both the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. § 10–16C–1 (“WPA”); (iv) whether adverse action was taken against Walton because of this protected disclosure; (v) whether a reasonable jury could find that Walton's political affiliations were a substantial or motivating factor in her termination; (vi) whether there was a violation of Walton's rights under the First and Fourteenth Amendments to the Constitution of the United States of America; and (vii) whether the termination of an employee because of her affiliation with a prior administration is clearly established under Tenth Circuit and Supreme Court precedent. 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 (“Bearden”) alleged misconduct—and the adverse action taken against Walton—her termination. Additionally, the Court will grant the MSJ as it pertains to Walton's WPA claim, because Walton has failed to produce evidence establishing a connection between her protected disclosure and the adverse action taken against her. The Court will deny the MSJ, however, as it pertains to Walton's Section 1983 claim for violations of Plaintiff's constitutional rights under the First and Fourteenth Amendments. Additionally, the Court will deny the QI MSJ in its entirety.

FACTUAL BACKGROUND

From January, 1988, to December 4, 2001, Walton was employed at the Miner's Colfax Medical Center in Raton, New Mexico, and during her time at the Miner's Colfax Medical Center, Walton became acquainted with Patrick Lyons, who was at that time a Republican New Mexican state senator. See Plaintiff's Response to Defendants' Motion for Summary Judgment ¶ 2, at 2, filed December 19, 2013 (Doc. 55)(“Response”)(setting forth this fact); Affidavit of Peggy Walton ¶ 3, at 1, filed December 19, 2013 (Doc. 55–1)(“Walton Aff.”); Defendants' Response to Plaintiff's Additional Relevant Evidence (“Are”) ¶ 2, at 1, filed January 17, 2014 (Doc. 59–1)(“Defendants' Response”)(not disputing this fact). 2 Walton “has been registered to

[49 F.Supp.3d 925]

vote as a Republican since approximately 1980.” Response ¶ 1, at 2 (setting forth this fact). See Walton Aff. ¶ 3, at 1; Defendants' Response, ¶ 1, at 1 (not disputing this fact). Lyons was elected to serve as the New Mexico Land Commissioner (“Land Commissioner”) for a term beginning on January 1, 2007. See Response ¶ 3, at 2–3 (setting forth this fact); Walton Aff. ¶ 4, at 2.3

After Lyons was elected, Walton applied for employment at the New Mexico State Land Office (“Land Office”) several times, but did not receive a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 3, at 1 (not disputing this fact). In January, 2008, Walton told Lyons that she had been applying for positions at the Land Office and that she had not received a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 4, at 1 (not disputing this fact). Walton then asked Lyons whether there were any open position for which she was qualified, and Lyons informed Walton that there were open positions and that she should keep applying. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants' Response ¶ 3, at 1 (not disputing this fact). On June 18, 2008, Walton applied for a classified position at the Land Office. See Response ¶ 4, at 3 (setting forth this fact); Walton Aff. ¶ 5, at 2; Defendants' Response ¶ 4, at 1 (not disputing this fact). Walton was not offered a classified position, however, but instead was offered an exempt Secretary II position, which she accepted, and she began work on August 25, 2008. See Response ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 3, at 4 (also setting forth this fact); Walton Aff. ¶¶ 5–6; Defendants' Response ¶ 4, at 1 (not disputing this fact). An exempt employee serves at the will of the agency head and does not have the protections afforded to classified employees under the State Personnel Act, N.M. Stat. Ann. § 10–9–4(D)(exempting

[49 F.Supp.3d 926]

certain government positions from the protections of the Personnel Act). See Response ¶ 15, at 7 (setting forth this fact); Deposition of Sandra Lopez at 18:9–20:13 (taken December 4, 2013), filed December 19, 2013 (Doc. 55–6)(“Plaintiff's Lopez Depo.”); 4 Deposition of Ray Powell at 38:8–39:23 (taken November 26, 2013), filed December 19, 2013 (Doc. 55–5)(“Powell Depo.”); Defendants' Response, ¶ 15, at 4 (not disputing this fact). Exempt positions exist so that the agency head has the ability to hire people whom the agency head believes are going to assist in implementing the agency head's policies. See Response ¶ 15, at 7 (setting forth this fact); Plaintiff's Lopez Depo. at 19:9–19:13; Defendants' Response, ¶ 15, at 4 (not disputing this fact). The Land Commissioner after Lyons—Ray Powell—who had also served as Land Commissioner before Lyons, understands that, historically in the Land Office, exempt employees serve under one elected official and then leave office, and the new elected official has the opportunity to appoint new people into that position. See Response ¶ 15, at 7 (setting forth this fact); Powell Depo. at 38:21–39:8; Defendants' Response, ¶ 15, at 4 (not disputing this fact).5

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Walton's first job assignment at the Land Office involved working in the Commercial Resources Division as a special projects coordinator and lease analyst. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2; Defendants' Response ¶ 5, at 1 (not disputing this fact). On or about October 22, 2008, Walton accepted the position of director of the commercial leasing section of the Commercial Resources Division, and as director of the commercial leasing section, Walton supervised the lease analysts, including Bearden, who was an employee whom the first Powell administration had hired. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2–3; Defendants' Response ¶ 5, at 1 (not disputing this fact).

In early 2009, Lyons instructed Sandra Lopez, the Land Office's Human Resources Manager, to transfer Walton from the exempt Secretary II position to the only vacant classified position in the Commercial Resources Division, which was an Economist A position. See Response ¶ 6, at 3–4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants' Response ¶ 6, at 1–2 (not disputing this fact). Lyons also instructed Lopez to reclassify that Economist A position to a General Manager I position. See Response ¶ 6, at 3–4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants' Response ¶ 6, at 3–4 (not disputing this fact). Walton did not have the credentials to fill the Economist A position; however, Walton was qualified to serve in a General Manager I position, and Walton told Lopez at this time that she was not qualified to serve in the Economist A position. See Response ¶ 6, at 3–4 (setting forth this fact); Walton Aff. ¶ 8, at 3.6

After the Land Office transferred Walton to the Economist A position, Lopez refused to initiate the paperwork with the State Personnel Office to reclassify the Economist A position to a General Manager I position; after Lopez repeatedly refused to initiate the paperwork for over a year, Lyons directed Walton to bypass Lopez and work directly with the State Personnel office to accomplish the reclassification, which Walton did. See Response ¶ 7, at 4 (setting forth this fact); Walton Aff. ¶ 9, at 3.7 Lopez later told Elaine Olah that

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she thought the reclassifying of Walton's Economist A position to a General Manager I position was improper. See Evidence in Opposition to Defendants' Statement of Alleged Undisputed Material Facts ¶ 9, at 2 (Doc. 55–8)(“Evidence in Opposition”); 8 Deposition of Loretta Elaine Olah at 54:24–58:7 (taken October 2, 2013), filed November 6, 2013 (Doc. 38–1)(“Olah Depo.”).9

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The reclassification was approved effective September 8, 2010, and Walton continued to serve as the director of the commercial leasing section of the Commercial Resources Division. See Response ¶ 7, at 4 (setting forth this fact); MSJ (QI) ¶ 6, at 4 (also setting forth...

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