Sinfuego v. Curry Cnty. Bd. of Cnty. Commissioners
Opinion of the Court
THIS MATTER comes before the Court on Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 121)("Motion"). The Court held a *1188hearing on September 25, 2018. The primary issues are: (i) whether Board of County Commissioners of Curry County, New Mexico ("Curry County") violated Plaintiff Amanda Sinfuego's First Amendment to the Constitution of the United States of America rights to freedom of speech, to petition for redress of grievances, and to freedom of association when Sinfuego's employment with Curry County Detention Center ("Curry Detention") was terminated after she petitioned Defendant Lance Pyle, the Curry County Detention Manager, about workplace conditions; met with Pyle about collective bargaining and workplace concerns; texted Curry County Detention Officers ("Curry Officers") notifying them that Pyle wanted to speak with them individually to prevent collective bargaining; signed the Petition from the Curry Officers to Administrator Tori Sandoval at 1, filed June 27, 2018 (Doc. 125-10)("Petition from Curry Officers to Sandoval"), and reported sexual harassment; (ii) whether Curry County took adverse employment actions against Sinfuego when it terminated her employment, removed her from the Special Operations Response Team ("S.O.R.T."), gave her night shifts and shifts in the women's annex, and interfered with her ability to choose her shifts; (iii) whether the Court should find Curry County liable for violating Sinfuego's First Amendment rights when Curry County had no custom dictating retaliation against union activities; (iv) whether Curry County violated the New Mexico Whistleblower Protection Act,
FACTUAL BACKGROUND
The Court draws the factual background from the parties' undisputed material facts in the Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 122)("Memo."); in the Plaintiff Amanda Sinfuego's Response to "Defendant Curry County's Motion for Summary Judgment" and "Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment" [Doc. 121-122], filed June 27, 2018 (Doc. 125)("Response"); and in the Reply Brief in Support of Defendant Curry County's Motion for Summary Judgment at 2, filed July 13, 2018 (Doc. 127)("Reply"). Curry Detention hired Sinfuego on August 16, 2010. See Memo. ¶ 1, at 2 (asserting this fact)(citing Deposition of Amanda Sinfuego at 29:8-30:4 (taken April 20, 2018), filed June 12, *11892018 (Doc. 122-1)("Sinfuego Depo. Doc. 122-1") ).
On November 16, 2012, Curry Officers sent the Memorandum to County Administration (dated Nov. 16, 2012), filed June 12, 2018 (Doc. 122-2); the Memorandum to County Administration is a petition, which Sinfuego did not sign, because she held the Interim Executive Secretary position. See Memo. ¶ 3, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 97:19-25;
*1190"Every day we step into an environment of danger where in the past three months four Officers have been assaulted," Response ¶ 2(i), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact); and the Curry Officers further state: "Poor leadership is reflected by the county manager and Commissioners who only seem to collect their 100,000 plus wages," Response ¶ 2(ii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact). Finally, the Curry Officers threaten: "We will be contacting the newspapers and making our plea public and only do that so our plight will not be ignored." Response ¶ 2(iii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact).
On December 3, 2012, Sinfuego and Curry Officer Rene Garcia met with Pyle about the Curry Officers' concerns. See Memo. ¶ 5, at 1 (asserting this fact).
After the meeting, Pyle posted a letter at the time clock and sent letters to the Curry Officers offering to meet with them individually. See Memo. ¶ 7, at 3 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 117:3-19).
I will be willing to meet with you in the next week to gather some additional information and to be able to provide that information to the County Commission in an attempt to assist you with some kind of resolution. You also have the right to file for collective bargaining and enclosed is a copy of Curry County Ordinance # 2004-07.
Memo. ¶ 8, at 3-4 (asserting this fact)(quoting Letter from Lance Pyle to Rene Garcia at 1 (sent Dec. 4, 2012), filed June 12, 2018 (Doc. 122-2) ).
*1193and that Curry Officers feared Pyle. Memo. ¶ 7, at 3 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 120:9-22).
On December 6, 2012, Pyle informed Billy via email that Pyle learned through Sinfuego that the Curry Officers refused to meet with Pyle.
Gerry as you are well aware with your experience in management, your Executive Secretary cannot be involved in collective bargaining, neither can your other Curry Detention Management and Administration Staff. Please inform your administrative staff and all other members of management that they are not to interfere or otherwise become involved in anything pertaining to Curry Detention negotiations with County Management and/or County Managers.
*1194See Memo. ¶ 9, at 4 (asserting this fact)(quoting Email from Lance Pyle to Gerry Billy at 1).
Also on December 6, 2012, Sinfuego texted the Curry Officers about Pyle's letters. See Memo. ¶ 10, at 4-5 (asserting this fact); Response ¶ 8, at 5 (admitting this fact). Sinfuego wrote:
Hey everyone, it's Amanda just informing everyone about the union. If you do not want to receive information please inform me and I will take you off our texting list. Lance Pyle sent out a packet informing that he wants to meet with us individually and is trying to scare everyone. Please be aware this is harassment and you do not have to go see him. He is trying to separate us and keep us from forming a union. This is intimidation and also illegal. We should be getting a grandfather union coming down next week to help begin our paperwork. Remember that the commission or Pyle cannot do anything to fire us or make us go on leave, that would be retaliation and illegal. We have everyone's support in our admin. We will have more info in our meeting this Monday. Any info please contact me or Rene:)
Memo. ¶ 10, at 4-5 (asserting this fact)(citing Email from Lance Pyle to Steve Doerr at 1 (sent Dec. 13, 2012), filed June 12, 2018 (Doc. 122-2)("Pyle Email") ). See Response ¶ 8, at 5 (admitting this fact).
On December 7, 2012, Stephen Doerr, the County Attorney, emailed Billy about the December 6, 2012, text message. See Memo. ¶ 13, at 5 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 2:19 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 2:19 P.M. Email") ); Response ¶ 1, at 1 (admitting this fact). Doerr wrote that Sinfuego had sent the communication "during work hours," that "her communication needs to stop," and that Billy "should also review the County policy and determine whether or not disciplinary action against Ms. Sinfuego is appropriate." Memo. ¶ 13, at 5 (asserting this fact)(quoting Doerr Email at 1); Response ¶ 1, at 1 (admitting this fact). Doerr assumed that Sinfuego spoke for Billy. See Response ¶ 3(viii), at 3 (asserting this fact)(citing Doerr 2:19 P.M. Email at 1).
On December 13, 2012, Pyle sent an email to Doerr about the text. See Memo. ¶ 15, at 6 (asserting this fact)(citing Pyle Email at 1); Response ¶ 1, at 1 (admitting this fact). Pyle described the December 6, 2012, text message as "incorrect, misleading, and slanderous," and complained that Sinfuego, on December 10, 2012, "again was distributing material on County time with incorrect, misleading and slanderous information to the Adult and the Juvenile Curry Detention employees." Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). Pyle continued:
This behavior violates several sections of the Curry County Personnel Policy and must be addressed. It is the Detention Administrator's duty/responsibility to take disciplinary action against Ms. Sinfuega [sic] and notify the County Detention employees in writing that the text was sent by Ms. Sinfuego is incorrect, misleading and slanderous. I would request that letter be signed by every employee to guarantee that every employee was notified with a copy being provided to the Personnel Department for the employee files.
If this was any other employee they would be receiving disciplinary action for this conduct/behavior. If the department head refused to address the matter with disciplinary action; disciplinary action would be taken against them. The Curry Detention cannot be treated any differently and the Curry Detention must be held to the same standards.
Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). At the time Pyle sent this email, he did not know that Billy had verbally counseled Sinfuego or that Assistant County Manager, Connie Harrison, had given him erroneous information about Sinfuego distributing material again on December 10, 2012. See Memo. ¶ 16, at 6 (asserting this fact)(citing Affidavit of Lance Pyle ¶ 3, at 1 (dated June 12, 2018), filed June 12, 2018 (Doc. 122-2)("Pyle Aff."); Billy Depo. Doc. 122-2 at 117:5-122:16).
Curry County appointed Tori Sandoval
On November 15, 2013, Sinfuego informed Garcia about a conversation with Curry Officer Dustin Hughes that occurred during the night of November 12 and 13, 2013, and before Curry Officers Janie Yearley and Dustin Davis. See Memo. ¶ 21, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 171:11-172:23).
Responding to the report, Lindsay Schwebke, the Curry County Personnel Coordinator, interviewed Sinfuego, Hughes, Yearley, and Davis. See Memo. ¶ 23, at 8-9 (asserting this fact).
Hughes also informed Schwebke that Sinfuego sent Snapchat
*1204¶ 23, at 9 (asserting this fact)(citing Interview of Dustin Hughes at 2-3 (taken Nov. 26, 2013), filed June 12, 2018 (Doc. 122-2); Sinfuego Depo. Doc. 122-1 at 210:5-7).
Schwebke reported the investigation to Sandoval. See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke (dated Dec. 16, 2013), filed June 12, 2018 (Doc. 122-3) ).
*1205Schwebke's report did not discuss Yearley's statement. See Response ¶ 26(iii), at 10 (asserting this fact)(citing Statement of Janie Yearley at 1).
After reviewing all of the facts and testimonies of these incidents and due to the seriousness of your actions, I am recommending you to be terminated from employment with Curry County. These conversations and actions are considered Sexual Harassment and will not be tolerated. You attended a Workplace Harassment Training on February 22, 2013 and signed an acknowledgment form affirming your awareness of Curry County's zero tolerance policy for Workplace Harassment.
Memo. ¶ 27, at 10 (asserting this fact)(quoting Letter of Intent to Terminate at 2).
On December 30, 2013, Sinfuego had a predetermination hearing with Pyle. See Memo. ¶ 29, at 11 (asserting this fact)(Pre-Determination Hearing at 1, filed June 12, 2018 (Doc. 122-3) ).
On January 7, 2014, Pyle terminated Sinfuego's employment. See Memo. ¶ 32, at 11-12 (asserting this fact)(citing Letter from Lance Pyle to Amanda Sinfuego at 4 (dated Jan. 7, 2014), filed June 12, 2018 (Doc. 122-4); Sinfuego Depo. Doc. 122-1 at 241:15-25;
I have reviewed the Curry County Personnel Policy # 10-03, Employee Discipline, and you have violated several sections including:
• Failure to follow County Policies, Rules or Regulations
• Non-cooperation by an employee with fellow employees or other personal conduct which substantially interferes with the performance of his/her or another employee's work
• Conduct unbecoming of an employee of Curry County
• Violation of Curry County Workplace Harassment Policy
# a. Oral or written sexual statements, comments, jokes, questions or innuendos
# b. Display of sexually oriented visual items such as calendars, cartoons, photos or posters *1208# k. Discussing their sexual preference, sexual relationships or even sexual matters seen on TV, YouTube, movies, or other formats including books and magazines
Memo. ¶ 32, at 12 (asserting this fact)(quoting Letter from Lance Pyle to Amanda Sinfuego at 3-4).
Sinfuego had her second post-disciplinary hearing on February 19, 2016, before Bruce Swingle. See Memo. ¶ 34, at 12-13 (asserting this fact)(citing Posttermination Hearing at 1 (taken Feb. 19, 2016), filed June 12, 2018 (Doc. 122-4)("Posttermination *1209Hearing Reporter's Record Doc. 122-4").
After considering the evidence[,] the credibility of the witnesses, and the severity of Ms. Sinfuego's infractions while on duty, e.g., engaging in conversations of a sexual nature for possibly up to an hour during her shift, which prevented staff from performing their jobs; withholding or distorting relevant facts during an administrative investigation; engaging in actions that have the effect of substantially interfering with an individual's work performance, or creating an intimidating, hostile or offensive working environment, both while on shift and during a County sponsored training; and distributing pictures of a "sexual nature" to at least three coworkers, is clearly conduct unbecoming a County employee, violates the County's Workplace Harassment Policy and substantially interferes with the performance of employee duties; therefore, ample basis exists for affirmance of the termination of Ms. Sinfuego's employment with the County.
See Memo. ¶ 35, at 13 (asserting this fact)(quoting Findings of Fact and Conclusions of Law at 5).
Sinfuego was a hard worker. See Response ¶ 22(iii) (asserting this fact)(citing Deposition of Tori Sandoval at 11:13-16 (taken April 19, 2018), filed June 27, 2018 (Doc. 125-12)("Sandoval Depo. Doc. 125-12") ),
Sinfuego believed "As long as you were good with [Sandoval], as long as you were good with certain people, you can get away scot-free." Response ¶ 27(vii) (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 265:10-13).
PROCEDURAL BACKGROUND
Sinfuego filed suit in the United States District Court for the District of New Mexico, alleging: (i) in Count I, that pursuant to
Sinfuego and the Defendants agreed to voluntarily dismiss Sandoval from the case on September 19, 2016. See Stipulated Voluntary Dismissal with Prejudice of all Claims against Defendant Tori Sandoval, filed September 19, 2016 (Doc. 53). The parties also stipulated to dismissal of Sinfuego's claims against Pyle in his official capacity. See Stipulation of Voluntary Dismissal of Claims Against Defendant Lance Pyle in His Official Capacity at 1, filed November 4, 2016 (Doc. 65). Pyle moved for summary judgment and to dismiss the case on qualified-immunity grounds on November 28, 2016. See Defendant Lance Pyle's Motion for Summary Judgment and Qualified Immunity, filed November 28, 2016 (Doc. 69)("Summary Judgment Motion"). Pyle argued that he was entitled to summary judgment, because Sinfuego failed to demonstrate that he violated her First Amendment rights, because his only involvement in her termination was to confirm the termination recommendation, and because the conversation between himself and Sinfuego pertaining to her union activity took place over one year before her termination. See Summary Judgment Motion at 8-9. On February 14, 2017, the Honorable Carmen E. Garza, United States Magistrate Judge for the District of New Mexico, granted the Summary Judgment Motion and dismissed with prejudice all claims against Pyle in his individual capacity. See Memorandum Opinion and Order at 1, 29,
1. The Motion and the Memo.
On June 12, 2018, Curry County moved for summary judgment, requesting that the Court dismiss with prejudice all claims Sinfuego brings. See Motion at 1. As grounds for its Motion for Summary Judgment, Curry County states that Sinfuego "cannot raise any genuine issue of material fact on any of her First Amendment retaliation claims" or on her NMWPA claim. Motion at 1-2. Pursuant to D.N.M.LR-Civ. 56.1(b), Curry County files a written memorandum to support its motion. See Memo. at 1.
Regarding Sinfuego's § 1983 claims, Curry County asserts that they all fail as a matter of law. See Memo. at 15-16. Curry County cites the test developed from Garcetti v. Ceballos,
Curry County then argues that Sinfuego's claims also fail under the Garcetti / Pickering test's fourth step. See Memo. at 19-23. The Garcetti / Pickering test's fourth step requires that the plaintiff show that the allegedly protected activity was a "substantial factor or motivating factor in a detrimental employment decision." Memo. at 19 (citing Brammer-Hoelter v. Twin Peaks Charter Acad.,
Turning to the Garcetti / Pickering test's fifth step, Curry County argues that the Court should grant summary judgment under each of Sinfuego's First Amendment retaliation claims. See Memo. at 23-25. Curry County argues that the Garcetti / Pickering test's fifth step puts the burden of proof on the defendant, who must show that it would have reached the same employment decision in the protected activity's absence. See Memo. at 23 (citing Trant v. Oklahoma,
Curry County concludes its argument pertaining to Sinfuego's First Amendment claims by stating that Sinfuego's claims fail to establish municipal liability. See Memo. at 25-27. According to Curry County, the Tenth Circuit, in Graves v. Thomas,
*1217Regarding Count IV of Sinfuego's Complaint, Curry County also argues that Sinfuego cannot, as a matter of law, prevail on her NMWPA argument. See Memo. at 27-34. According to Curry County, Count IV alleges that Curry County violated the NMWPA when it terminated Sinfuego's employment in retaliation for her whistleblowing communications. See Memo. at 27. Curry County argues that Sinfuego cannot show that any of her union-related activities constitute "whistleblowing activities," that, when the decision was made to terminate Sinfuego, Sandoval and Pyle were aware of any of Sinfuego's concerns regarding conditions at Curry Detention, and that Curry County had a legitimate, non-retaliatory reason to terminate Sinfuego's employment. See Memo. at 27-34.
2. The Response.
Sinfuego responded to the Motion on June 27, 2018. See Response at 1. Sinfuego argues that there are outstanding issues of material fact that preclude granting the Motion. See Response at 16-27. Specifically, Sinfuego argues that her "unionization efforts and her immediate demotion after Mr. Billy was terminated present a question of fact for the jury." Response at 17.
Regarding her unionization efforts, Sinfuego argues that, contrary to Curry County's assertions, her speech activities were a matter of public concern. See Response at 19-20. Sinfuego specifically points to her December 6, 2012, text message as protected speech, as "informing other officers that the County Manager was attempting to illegally intimidate and retaliate against the Detention officers is a matter of public concern and protected by law." Response at 19. Sinfuego cites the Tenth Circuit, which states that "[t]he First Amendment protects the right of a public employee to join and participate in a labor union." Response at 20 (quoting Cillo v. City of Greenwood Vill.,
As to Curry County's argument that Curry County could not have retaliated against Sinfuego, because Sandoval was unaware of Sinfuego's union-related activities, Sinfuego argues that Sandoval worked in close proximity to Pyle, and it would not, therefore, be possible for Sandoval to have been unaware of Sinfuego's activities. See Response at 21. Sinfuego states that Sandoval was Pyle's "snitch" against Billy and that Sandoval was rewarded with Billy's job after Billy was terminated. See Response at 21. Regarding Sinfuego's expression of concerns at Curry Detention, Sinfuego argues that she voiced her concerns to Pyle at the December 3, 2012, meeting. See Response at 21-22. Based on these facts, Sinfuego argues that Pyle and Sandoval knew of her concerns about conditions at Curry Detention. See Response at 21.
Regarding Curry County's argument that the amount of time between the December 6, 2012, text message and her eventual termination in January, 2014, counsels against a retaliatory motive on Curry County's part, Sinfuego argues that she suffered retaliatory behavior well before her termination. See Response at 22. Sinfuego highlights that she was moved to the "midnight" shift, that she had her seniority and other duties "stripped" from her, and that she was removed from S.O.R.T. as examples of the retaliation that she suffered in response to her union-related activities. See Response at 22.
As to Curry County's argument that Sinfuego's termination was appropriate because she violated the Curry County sexual harassment policy, Sinfuego argues that her actions do not amount to violations of the Curry County sexual harassment policy. See Response at 24-25. Sinfuego disputes Curry County's allegation that she "admitted on multiple occasions that she asked a male coworker whether he *1218groomed his genitals 'like how porn stars do it.' " Response at 25 (quoting Memo. at 23). Sinfuego argues that "one comment or question made during someone else's lengthy discussion of sexual hygiene [as] an activity is not sexual harassment." Response at 25. Sinfuego argues that her comment did not "interfere with anyone's ability to do their job[s]" and that her action does not, therefore, rise to the level of sexual harassment. Response at 25. Similarly, Sinfuego argues that her actions at the "Toxic Talk" training did not create an "intimidating work environment" and that none of her coworkers complained about the picture message that she sent during the "Toxic Talk" training. Response at 25. Sinfuego then highlights other incidents of sexual conduct to argue that Curry County only selectively enforces the Curry County sexual harassment policy. See Response at 27-8.
3. The Reply.
Curry County replied on July 13, 2018. See Reply at 1. Curry County argues that Sinfuego's behavior warranted termination, because she violated the Curry County sexual harassment policy when she participated in an inappropriate workplace conversation and when she disseminated images depicting penises. See Reply at 1. Curry County reiterates its argument that neither Sinfuego's participation in the December 3, 2012, meeting, nor the December 6, 2012, text message, constitute matters of public concern, and both fall short of the Garcetti / Pickering test's requirement. See Reply at 12-13. Curry County contends that Sinfuego's argument that Pyle engaged in "illegal" behavior when he offered to meet with individual officers regarding the formation of a union was, at best, a reckless statement undeserving of First Amendment protection. Reply at 13. Curry County argues that New Mexico law does not prohibit Pyle from offering to meet with Curry Officers, and that Sinfuego's text message was therefore a "deliberately or recklessly false statement." Reply at 14.
Curry County then argues that Sinfuego has failed to show that either her participation in the December 3, 2012, meeting or her sending the December 6, 2012, text message was a "substantial" or "motivating" factor in her termination. Reply at 14 (quoting Brammer-Hoelter v. Twin Peaks Charter Acad.,
Additionally, Curry County reasserts its contention that Sinfuego would have been terminated for her misconduct, regardless of any alleged retaliatory motive on Curry County's part. See Reply at 16. Curry County reiterates Sinfuego's acknowledgement that she took part in an inappropriate workplace conversation, and her admission that she drew penises on a picture and then sent it via Snapchat to three coworkers. See Reply at 17. Regarding Sinfuego's contention that her actions do not rise to the level of "actionable" sexual harassment, Curry County cites the Tenth Circuit, which has asserted that employers have an "interest in eliminating the appearance of impropriety" and do not have to forego taking action until the misconduct has risen to the level of "actionable." Reply at 17 (citing Trant v. Oklahoma,
As to Sinfuego's NMWPA claim, Curry County reiterates that she cannot succeed as a matter of law. See Reply at 20. Regarding the December 6, 2012, text message, Curry County asserts that the allegation in the December 6, 2012, text message is unfounded, as Sinfuego has presented no evidence to support an inference that Pyle was offering to meet with officers for an unlawful purpose. See Reply at 21. Curry County argues that, because Sinfuego lacks evidence that Pyle was attempting to violate the law, her message should not be afforded "whistleblower" protection. Reply at 21. Curry County further argues that Sinfuego does not establish any "causal connection" between the alleged "whistleblowing" activity and her employment termination. Reply at 21. Curry County reiterates that Sinfuego has not presented any evidence to show that Sandoval, who Sinfuego alleges carried out the retaliatory behavior, had any knowledge of Sinfuego's alleged "whistleblowing" activities. Reply at 21. Finally, Curry County asserts that it has proven Sinfuego engaged in behavior that warrants her employment termination, as Sinfuego admitted to engaging in misconduct in the workplace. See Reply at 22. Curry County asserts that, because Curry County has proven Sinfuego's misconduct, it should prevail on its affirmative defense. See Reply at 22.
4. The Hearing.
The Court held a hearing on the Motion on September 25, 2018. See Draft Transcript of Hearing at 1 (taken September 25, 2018)(Court)("Tr.").
Curry County next argued that Sinfuego's claims fail, because she cannot prove that her allegedly protected activity was a substantial or motivating factor in a detrimental employment decision. See Tr. at 15:3-11 (Smith). Curry County asserted that Sinfuego cannot demonstrate that Sandoval had any knowledge of Sinfuego's union-related activity when Sandoval decided to terminate Sinfuego's employment. See Tr. at 16:14-16 (Smith). Curry County pointed to the Sandoval Deposition, in which Sandoval was asked "a series of questions by plaintiff['s] counsel in which she had ... no knowledge of any union *1220related activities that Ms. [Sinfuego] was engaged in ... prior to the lawsuit being filed." Tr. at 16:16-22 (Smith). Further, Curry County acknowledged that Pyle had knowledge of Sinfuego's union-related activities, but that no evidence suggests that, before the termination, he was involved in any employment decisions regarding Sinfuego. See Tr. at 17:4-10 (Smith). Curry County argued that, as to Sinfuego's termination, the significant gap in time between Sinfuego's union-related activities and her termination precludes an inference that she was terminated for her union-related activities. See Tr. at 18:11-19 (Smith).
Regarding Sinfuego's allegations that Curry County terminated Sinfuego for activities in which other employees had engaged without suffering adverse employment decisions, Curry County attacked Sinfuego's evidence as hearsay and inadmissible. See Tr. at 19:4-16 (Smith). Further, Curry County asserted that Sinfuego cannot establish that Pyle or Sandoval had any knowledge of these alleged events. See Tr. at 19:20-20:6 (Smith).
As to Sinfuego's theory of retaliation based on the expression of her concerns regarding conditions at the Curry Detention, Curry County asserted that Sinfuego admitted in the Sinfuego Deposition that she had addressed her concerns to her immediate supervisors, but that she did not express these concerns either to Pyle or to Sandoval. See Tr. at 21:5-19 (Smith). According to Curry County, Sinfuego only can speculate whether her concerns were passed to Pyle or to Sandoval, and speculation, Curry County noted, is not sufficient to defeat summary judgment. See Tr. at 21:19-22:6 (Smith). Curry County asserted that Sinfuego lacks any evidence that Pyle or Sandoval moved to terminate her employment based on knowledge that Sinfuego had expressed these concerns. See Tr. at 22:3-6 (Smith).
Finally, Curry County argued that it can show by a preponderance of the evidence that it would have made the same adverse employment decision regardless of any alleged union-related activities, because Sinfuego engaged in behavior that violated the Curry County sexual harassment policy. See Tr. at 23:1-7 (Smith). Curry County argued that Sinfuego's contention that her actions do not rise to an "actionable level" fail, as the Tenth Circuit has held that "boorish behavior in the workplace can justify terminat[ion]." Tr. at 23:9-10 (Smith). Regarding the theory of municipal liability, Curry County asserted that Sinfuego cannot establish that there was a custom or policy of Curry County's to retaliate against employees who engaged in union-related activities. See Tr. at 25:20-23 (Smith).
Sinfuego responded, referencing Billy v. Curry County Board of Commissioners, in which Bobbie Sandoval, a Curry County Commissioner, testified that in December, 2012, that he was aware that Pyle was "upset with Mrs. Sinfuego's activities." Tr. at 28:21-29:3 (Dixon). Further, Sinfuego pointed to the fact that Curry County fired Billy at the same time that Curry County moved Sinfuego to the midnight shift, despite Sinfuego having more seniority than a majority of her coworkers. See Tr. at 29:10-13 (Dixon).
Sinfuego asserted that, on the night of November 12, 2012, after exiting the restroom at Curry Detention, she exclaimed that the facility was dirty and inquired as to pubic hair on the toilet. See Tr. at 32:11-13 (Dixon). Then, according to Sinfuego, Hughes launched into a "rather lengthy discussion regarding his sexual hygiene," and Sinfuego states that she replied "that is too much information," and, according to Sinfuego, Yearley's statement confirms this conversation. Tr. at 31:16-18 (Dixon). Sinfuego then asserted that Curry County *1221sought to justify its retaliatory behavior by citing violations of the Curry County sexual harassment policy, yet, according to Sinfuego, Curry County selectively enforced the Curry County sexual harassment policy. See Tr. at 33:14-18 (Dixon). Sinfuego argued that Curry County's action in terminating her is not in line with Title VII of the Civil Rights Act of 1964's, Pub. L. 88-352,
In addition, Sinfuego asserts that Billy v. Curry County Board of Commissioners' jury findings establish that Curry County engaged in a custom of retaliating against individuals who engaged in union-related activities. See Tr. at 37:3-7 (Dixon). Sinfuego asserts that in Billy v. Curry County Board of Commissioners, the jury found that Curry County retaliated against Billy and terminated him in retaliation for not disciplining Sinfuego after she engaged in her union-related activities. See Tr. at 36:21-24 (Dixon). Sinfuego argued that these findings show that "there are issues of material fact that prevent this matter from being decided on summary judgment." Tr. at 37:5-7 (Dixon).
In response to Sinfuego's contention that Curry County retaliated against her for engaging in behavior for which it did not punish other employees, Curry County cited the Tenth Circuit case Adams v. American Guarantee and Liability Insurance,
Curry County moved to the NMWPA claims, stating: "Here, the plaintiff's [NM]WPA claims are the same as her First Amendment retaliation theories, she alleges that she was retaliated against for participating in union activity and for reporting safety concerns or conditions of the detention center to her lieutenants and sergeants at the detention center." Tr. at 42:22-43:3 (Smith). Specifically, Curry County stated that Sinfuego contends that, when Sinfuego sent the December 6, 2012, text message, she engaged in "reporting a violation of federal or state law," because the New Mexico Public Employees Bargaining Act,
As to Sinfuego's contention that she suffered retaliation for reporting on unsafe conditions at Curry Detention, Curry County argued that this argument is without merit, because Sinfuego cannot prove that Pyle or Sandoval had any knowledge of her communications, and therefore could not have retaliated against her for something of which they were not aware. See Tr. at 47:6-12 (Smith). In response to the Court's inquiry about the "cat's paw theory,"
Sinfuego returned to arguing about the Garcetti / Pickering test's public-concern requirement for her First Amendment retaliation claims. See Tr. at 51:21-23 (Dixon). First, Sinfuego noted that her November 14, 2013, complaint about Hughes' sexual comments touched a public concern. See Tr. at 51:21-52:3 (Dixon). Second, Sinfuego pointed to the December 6, 2012, text message and disputed Curry County's understanding of what § 10-7E-5 allows. See Tr. at 52:4-16 (Dixon). Sinfuego asserted that "Mr. Pyle was against the union and wanted [t]o tell everybody or to attempt to scare everybody into not unionizing." Tr. at 52:14-16 (Dixon). Finally, Sinfuego pointed to the Petition from Curry Officers to Sandoval as another protected activity in which Sinfuego engaged. See Tr. at 51:22-52:4 (Dixon).
In Curry County's response, it argued that the Petition from Curry Officers to Sandoval is an undated letter that thirty detention officers signed, and does not fall within the protected "whistleblowing activity" that the NMWPA protects, and that this moment was the first instance in which Sinfuego had raised this point in the course of the suit. See Tr. at 53:1-15 (Smith). In addition, Curry County asserted that, before the hearing, Sinfuego had not raised her contention that Curry County retaliated against for her complaint about Hughes' sexual comments. See Tr. at 53:16-19 (Smith).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the initial burden of 'show[ing] that there is an absence *1223of evidence to support the nonmoving party's case.' " Herrera v. Santa Fe Pub. Sch.,
Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex,477 U.S. at 323-25 ,106 S.Ct. 2548 . On those issues for which it bears the burden of proof at trial, the nonmovant "must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment." Cardoso v. Calbone,490 F.3d 1194 , 1197 (10th Cir. 2007).
Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757,
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof."
*1224Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc.,
Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. v. Omer, No. CIV 07-2123,
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby,
There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris,
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. [Indus.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587,106 S.Ct. 1348 ... (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248,106 S.Ct. 2505 .... When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris,
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County,
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, "[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts." York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir. 2008) (quoting Scott,550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty.,
*1226
LAW REGARDING
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a "person" (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.
Schaefer v. Las Cruces Pub. Sch. Dist.,
The Supreme Court has clarified that, in alleging a § 1983 action against a government agent in his or her individual capacity, "a plaintiff must plead that each Government-official defendant, *1227through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal,
The Tenth Circuit recognizes that non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson,
Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which "subjects, or causes to be subjected" that plaintiff "to the deprivation of any rights ... secured by the Constitution...."
Dodds v. Richardson,
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas,
LAW REGARDING FIRST AMENDMENT RETALIATION CLAIMS
"Official reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right.' " Hartman v. Moore,
The Tenth Circuit applies "a five-prong analysis to determine whether action taken against an employee constitutes retaliation in violation of the employee's First Amendment rights." Hook v. Regents of Univ. of Cal.,
First, the court must determine whether the employee speaks pursuant to his official duties. If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created. Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine whether the employee's interest in commenting on the issue outweighs the interest of the state as employer. Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a motivating factor in a detrimental employment decision. Finally, if the employee establishes that his speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech.
Couch v. Bd. of Trs. of Mem'l Hosp.,
1. Speech Pursuant to Official Duties.
Under Garcetti v. Ceballos, and its progeny, a plaintiff must show that the substance of the speech which forms the basis for the First Amendment claim involves something that is not part of the plaintiff's official duties and is a matter of public concern, and not merely a complaint involving the plaintiff's own employment. See Brammer-Hoelter v. Twin Peaks Charter Acad.,
Speech relating to tasks within an employee's uncontested employment responsibilities may not be protected from regulation, even though the speech concerns an unusual aspect of an employee's job that is not part of his everyday functions. See Battle v. Bd. of Regents,
2. Speech about Matters of Public Concern.
Second, if the employee does not speak pursuant to his or her official duties, but instead speaks as a citizen, the court must determine whether the subject of her speech is a matter of public concern. See Brammer-Hoelter v. Twin Peaks Charter Acad.,
[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
Connick,
The Tenth Circuit in Brammer-Hoelter v. Twin Peaks Charter Academy explained:
[W]e have held that the following are not matters of public concern: speech regarding grievances about internal departmental affairs, *1232Hom v. Squire,81 F.3d 969 , 974 (10th Cir. 1996), disputes over the term of employment, Lancaster v. Ind. Sch. Dist. No. 5,149 F.3d 1228 , 1233-34 (10th Cir. 1998), and workplace frustration, McEvoy v. Shoemaker,882 F.2d 463 , 466 (10th Cir. 1989).
Brammer-Hoelter v. Twin Peaks Charter Acad.,
allegations of fraud, the inappropriate collection of state funds as reimbursement for use of the executive director of the National Hispanic Cultural Center's personal vehicle at the IRS mileage rate when a state vehicle was available, the granting of a translation contract to executive director's sister, the attempted misuse of state travel funds, violations of the New Mexico Procurement Code, the misuse of government phones for personal reasons, discriminatory favoritism and preferential treatment toward certain employees, and harassment of other employees;
3. Balancing Interests.
Third, if the subject of the speech is a matter of public concern, the court must weigh "an employee's First Amendment speech against an employer's interest in an efficient and disciplined work environment." Brammer-Hoelter v. Twin Peaks Charter Acad.,
Nevertheless, the question is whether the employer "has an efficiency interest which would justify it in restricting the particular speech at issue." [ Cragg v. City of Osawatomie,143 F.3d 1343 , 1347 (10th Cir. 1998) ]. "In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin v. McPherson,483 U.S. 378 , 388,107 S.Ct. 2891 ,97 L.Ed.2d 315 , (1987).
Brammer-Hoelter v. Twin Peaks Charter Acad.,
A number of factors are considered in evaluating Defendants' interest under *1233the Pickering balancing test. Pertinent considerations include "the manner, time, and place of the employee's expression ... the context in which the dispute arose ... [and] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."
Patrick v. Miller,
4. Causation.
"Under the fourth-prong of Garcetti, plaintiffs bear the burden of establishing both a detrimental employment decision (adverse employment action) and 'causation -- that is, that the constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment.' " Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cty.,
The Tenth Circuit summarizes some of the law regarding the causation requirement in Maestas v. Segura:
Adverse action in close proximity to protected speech may warrant an inference of retaliatory motive. See Baca v. Sklar,398 F.3d 1210 , 1221 (10th Cir. 2005). But temporal proximity is insufficient, without more, to establish such speech as a substantial motivating factor in an adverse employment decision. Id [. ] ; see also Morfin v. City of East Chicago,349 F.3d 989 , 1005 (7th Cir. 2003) (explaining protected conduct cannot be a basis for retaliation where defendants did not know of such conduct). An employer's knowledge of the protected speech, together with close temporal proximity between the speech and challenged action, may be sufficiently probative of causation to withstand summary *1234judgment. See Ramirez [v. Okla. Dep't of Mental Health ], 41 F.3d [584] at 596 [ (10th Cir. 1994) ]. Other evidence of causation may include evidence the employer expressed opposition to the employee's speech, see Alpha Energy Savers, Inc. v. Hansen,381 F.3d 917 , 929 (9th Cir. 2004), or evidence the speech implicated the employer in serious misconduct or wrongdoing. See Baca,398 F.3d at 1221 . On the other hand, evidence such as a long delay between the employee's speech and challenged conduct, see McGuire v. City of Springfield,280 F.3d 794 , 796 (7th Cir. 2002), or evidence of intervening events, see Gubitosi v. Kapica,154 F.3d 30 , 33 (2d Cir. 1998), tend to undermine any inference of retaliatory motive and weaken the causal link.
Maestas v. Segura,
Showing that an adverse action occurred in close proximity to protected speech is a common method of showing causation. A plaintiff need not show proximity between the protected speech and an action sufficiently severe to be materially adverse, but can instead show temporal proximity between the speech and the beginning of a pattern of retaliatory activity, some instances of which are sufficient under the Garcetti / Pickering analysis.
Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633 JB/DJS,
5. Alternative Reason for the Employer's Action.
To rebut a plaintiff's case, an "employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech." Brammer-Hoelter v. Twin Peaks Charter Acad.,
LAW REGARDING THE NMWPA
The NMWPA provides:
A public employer shall not take any retaliatory action against a public employee because the public employee:
A. communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;
B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or *1235C. objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act.
E. .... a practice, procedure, action, or failure to act on the part of a public employer that:
(1) violates a federal or state law, regulation, or administrative rule;
(2) constitutes malfeasance in public office; or
(3) constitutes gross mismanagement, a waste of funds, an abuse of authority or a substantial and specific danger to the public.
In Lobato v. New Mexico Environmental Department,
LAW REGARDING SUPPLEMENTAL JURISDICTION
It is a fundamental precept of American law that the federal courts are "courts of limited jurisdiction." Exxon Mobil Corp. v. Allapattah Servs., Inc.,
1. Congressional Authority to Exercise Supplemental Jurisdiction.
Although a statutory basis is necessary for federal courts to exercise jurisdiction over a controversy, "it is well *1236established -- in certain classes of cases -- that, once a court has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy." Exxon Mobil Corp. v. Allapattah Servs., Inc.,
In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV 09-0540 JB/CG,
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
2. The District Courts' Discretion to Exercise Supplemental Jurisdiction.
The Tenth Circuit has followed the Supreme Court's lead in classifying supplemental jurisdiction not as a litigant's right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp.,
Similarly, Congress' supplemental jurisdiction statute enumerates four factors that the court should consider:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
The Tenth Circuit has held that district courts should presume to decline jurisdiction over state claims when federal claims no longer remain: "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City,
[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers of Am. v. Gibbs,
The Tenth Circuit has recognized that a district court does not abuse its discretion when it declines to exercise supplemental jurisdiction over a claim "under
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.,
1. Title VII Retaliation.
To establish a prima facie case of retaliation, a plaintiff must show: "(1) that he [or she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Proctor v. United Parcel Serv.,
2. Materially Adverse Employment Action.
The Tenth Circuit liberally defines what constitutes an adverse employment action. See Orr v. City of Albuquerque,
Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.
Sanchez v. Denver Pub. Sch.,
In Anderson v. Clovis Municipal Schools,
ANALYSIS
Sinfuego appears to argue that Curry County retaliated against her for associating with the union and for her speech and petitions regarding: (i) conditions at Curry Detention; (ii) Curry Officers' concerns about staffing, pay, and unionizing; (iii) Pyle's invitation to meet individually with Curry Officers; and (iv) sexual harassment. See Response at 17-24. Sinfuego contends that, in response to her actions, Curry County: (i) shifted her to midnight shifts, reduced her involvement with S.O.R.T., ignored her seniority, and changed her *1241duties in other ways, and (ii) terminated her employment. The Court will grant summary judgment on these facts for Curry County on Sinfuego's First Amendment claims.
I. THE COURT WILL GRANT SUMMARY JUDGMENT FOR CURRY COUNTY ON SINFUEGO'S FIRST AMENDMENT CLAIMS.
Sinfuego brings three First Amendment claims, contending that Curry County violated her rights to freedom of speech, freedom to petition for grievances, and freedom of association. Curry County groups together the claims, analyzing them under the Tenth Circuit's five-part test for First Amendment freedom-of-speech retaliation claims.
A. THE PUBLIC CONCERN FACTOR APPLIES TO RETALIATION CLAIMS IN THE LABOR UNION CONTEXT WHEN NO COLLECTIVE BARGAINING AGREEMENT IS IN PLACE.
Recent Tenth Circuit's cases leave unaddressed whether the public concern requirement applies to contexts, like Sinfuego's, in which a labor union and public employer have not entered a collective bargaining agreement. Until relatively recently, the Tenth Circuit refrained, "as a general matter," from deciding whether " Pickering's public concern requirement applies to freedom of association claims." Merrifield v. Bd. of Cty. Comm'rs for Cty. of Santa Fe,
Other Courts of Appeals are divided on whether the "public concern" requirement applies to public employee freedom of association claims, but they do not address the specific question before the Court. The United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits *1243apply the "public concern" requirement to public employee freedom of association claims. Cobb v. Pozzi,
All three district courts in the Tenth Circuit to have addressed whether Merrifield governs such a situation determined that application of the "public concern" requirement recognized in the case, not the exception carved from Shrum, controls and that the "public concern" requirement applies. See Cardona v. Burbank, Case No. 2:12-CV-608 TS-BCW,
On the language's face, the exception in Merrifield may seem to speak to all facts involving public employee union association retaliation claims. The language in Merrifield refers simply to "[t]he specific context of public-employee labor unions." Merrifield,
The Tenth Circuit, however, recognized the exception in Merrifield, because in Shrum, the Tenth Circuit addressed whether, "in the ... context of public employee labor unions," "a worker [need] demonstrate that his association with the union be a matter of public concern," Shrum,
*1244Thomas v. City of Bartlesville, No. 11-CV-0389-CVE-PJC,
The Pickering test is predicated on the government's "interests as an employer in regulating the speech of its employees," which "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering,391 U.S. at 568 ,88 S.Ct. 1731 .... Those interests relate to "the efficiency of the public services it performs through its employees."Id. Where a public employer has negotiated with an employee union and signed a collective-bargaining agreement, it has contractually agreed to the legitimacy of the union and of its employees' association with the union. The public employer has presumably received the benefit of its bargain, and is estopped from claiming that its "interests as an employer" are inconsistent with the freedom of its employees to associate with the union or to file grievances in accordance with its procedures.
Shrum,
In Shrum, the Tenth Circuit recognizes earlier cases suggesting that, "in the specific context of public employee labor union," the employee need not satisfy the public concern factor.
Before Merrifield, the Honorable Walker David Miller, United States District Judge for the District of Colorado, read Morfin v. Albuquerque Public Schools, in which the Tenth Circuit concluded, that "the unconstitutionality of retaliating against an employee for participating in a union was clearly established," Morfin v. Albuquerque Pub. Sch.,
In Connick, ... the Court did not hold that speech by a public employee not on a matter of public interest was "totally beyond the protection of the First Amendment," but merely that such speech did not give rise to a cause of action in federal court "to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."
Boals v. Gray,
Further, the Court is persuaded by King v. Downing,
*1246Accordingly, the Court agrees with the courts in Cardona v. Burbank, Hollenbach v. Burbank, and Cillo v. City of Greenwood Village that the exception created from Shrum does not apply in this matter, where the Curry Officers had no collective bargaining agreement with Curry County, and the rule from Merrifield, that the public concern requirement applies to instrumental association claims, governs.
B. SINFUEGO'S ACTIVITIES RELATED TO SAFETY AT CURRY DETENTION TOUCH MATTERS OF PUBLIC CONCERN, BUT SINFUEGO'S ACTIONS RELATED TO PAY AND UNIONIZING AND HER STATEMENT ABOUT SEXUAL HARASSMENT DO NOT INVOLVE PUBLIC CONCERNS.
Sinfuego is not clear in alleging which activities were protected and caused Curry County's alleged retaliation. Considering the entire response, the Court concludes that Sinfuego contends that Curry County retaliated against her for: (i) her comments on conditions at Curry Detention; (ii) her involvement in the December 3, 2012, meeting with Pyle; (iii) her December 6, 2012, text message about a union and Pyle's invitation to meet individually with Curry Officers; and (iv) her November 15, 2013, statement about her conversation with Hughes. See Response at 17-24. The Court discusses each action in turn. The Court concludes that Sinfuego's actions touched public concerns only when the actions involved safety at Curry Detention. These actions include her conversations with sergeants and lieutenants, and with Pyle in the December 3, 2012, meeting. Sinfuego's other actions do not rise to public concerns.
First, Sinfuego contends that she expressed concerns to her superior sergeants and lieutenants about conditions, including safety and sanitation issues, at Curry Detention. See Memo. at 17. Speech addresses a public matter when it is "fairly considered as relating to any matter of political, social, or other concern to the community." Connick,
Sinfuego also cites the Petition from Curry Officers to Sandoval as expressing her concerns about Curry Detention's conditions. See Response at 21. The Petition from Curry Officers to Sandoval focuses on "grievances of a purely personal nature," Brammer-Hoelter v. Twin Peaks Charter Acad.,
Second, Sinfuego, in meeting with Pyle, joined Curry Officers in voicing complaints about staffing, pay, unionizing, and safety. See Response ¶¶ 3(ii)-(iii) (citing Conf. Tr. at 4:17, id. at 5:15-17; id. at 6:15-18; id. at 8:4-12); Response at 18-19. Matters of pay, staffing, and unionizing are "grievances of a purely personal nature." Brammer-Hoelter v. Twin Peaks Charter Acad.,
The meeting with Pyle was not limited, however, to discussions about personal grievances. See Response ¶ 3(ii)-(iii), at 2 (citing Conf. Tr. at 4:17, id. at 5:15-17; id. at 6:15-18; id. at 8:4-12); Response at 18-19. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick,
Third, the December 6, 2012, text message notified Curry Officers about steps in the union's formation, including Pyle's offer to speak individually with Curry Officers. See Memo. ¶ 10, at 4-5 (citing Pyle Email at 1). While Sinfuego is correct that "the First Amendment protects the right of a public employee to join and participate in a labor union," Cillo v. City of Greenwood Village,
Finally, Sinfuego suggests that her statement about Hughes' comments resulted in her termination. See Response at 23. Complaints about personal experiences with sexual harassment do not rise to public concerns. See David v. City & Cty. of Denver,
C. SINFUEGO'S ACTIVITIES DID NOT MOTIVATE CURRY COUNTY TO ENGAGE IN ADVERSE EMPLOYMENT ACTIONS.
Even if Sinfuego's activities involved matters of public concern, she must show a genuine issue of fact whether "the constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment." Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cty.,
*1249The Court, however, further holds that Sinfuego cannot show a genuine factual question whether her actions motivated Curry County to retaliate against her. The Court thus concludes that Sinfuego's claims fail at the Garcetti / Pickering test's step four, and that summary judgment is appropriate for Counts I, II, and III.
1. Terminating Sinfuego Constitutes an Adverse Employment Action, and a Genuine Factual Question Exists Whether Removing Sinfuego from S.O.R.T. is an Adverse Employment Action, but Sinfuego has Established No Other Genuine Factual Questions Whether Curry County Engaged in Adverse Employment Actions.
Sinfuego contends that Curry County retaliated against her by terminating her employment, removing her from S.O.R.T., putting her on the night shift, assigning her to the women's annex, ignoring her seniority, and stripping her of other duties. See Response at 22. Curry County argues that no genuine factual question exists whether any action which Sinfuego suffered short of termination is not an "adverse employment action." Memo. at 20 n.8. Sinfuego does not respond to Curry County's argument; Sinfuego focuses on Curry County's arguments about its motivations. See Response at 20-24. The Court need not decide the Motion on this issue, but the Court will briefly address Curry County's contention. The Court agrees with Curry County that Sinfuego's termination constitutes an adverse employment action, but the Court concludes that Sinfuego demonstrates a genuine factual question whether her removal from S.O.R.T. constitutes an adverse employment action.
The standard for determining whether an employer subjected an employee to an adverse employment action is the same for retaliation claims under the First Amendment and Title VII. See Hook v. Regents of Univ. of Cal.,
The Court notes that the termination is an adverse employment action. Sinfuego's termination, a "firing," constitutes an adverse employment action. Daniels v. United Parcel Serv., Inc.,
When changes in salary, seniority, job classification, or significant changes in responsibilities accompany reassignments and transfers, the reassignments and transfers are adverse employment actions.
The Tenth Circuit has held that reassigning an employee from a "cover shift," meaning that she filled in for absences or vacancies during the defendant company's three different shifts, to a permanent night shift, was not an adverse employment action for Title VII purposes, because the plaintiff's "job classification did not change ... nor was her salary decreased," and she did not "introduce any evidence showing the dispatch duties differed significantly" from her previous position. Daniels v. United Parcel Serv., Inc.,701 F.3d at 636 . The Tenth Circuit noted that the plaintiff proved the night shift was a less desirable shift than the day or the twilight shift, but concluded that was not sufficient *1252to find that the reassignment was an adverse employment action. See701 F.3d at 635-36 . In Jones v. Oklahoma City Public Schools, [617 F.3d 1273 (10th Cir. 2010),] on the other hand, the Tenth Circuit held that a reassignment from director of curriculum and instruction within a school district to an elementary school principal, along with a "$ 17,000 decrease in salary" to take place one year following a teacher's reassignment, the "lost professional prestige," and falling to "a lower position in the district's organizational hierarchy," constituted an adverse employment action even though the teacher was not technically demoted.617 F.3d at 1279-80 .
Hunt v. Cent. Consol. Sch. Dist.,
Regarding the 2013 changes to Sinfuego's position, Sinfuego has offered no evidence showing a pay deduction with her shift changes or changes to the duties that she would otherwise be performing. With her transfer to night shifts, assignments to the women's annex, and inability to choose the day shift, Response at 22, Sinfuego may have received "less desirable" assignments, but she has not illustrated that her duties differed significantly from her earlier duties. E.g., Daniels v. United Parcel Serv., Inc.,
Sinfuego's removal from S.O.R.T. differs from the other changes to her responsibilities, because, in removing Sinfuego from S.O.R.T., Curry County changed her job duties. Although Sinfuego has not shown a reduction in pay, see Wheeler v. BNSF Ry.,
2. Sinfuego's Activities Did Not Motivate Curry County's Actions.
Even if all of Curry County's actions constituted adverse employment actions, Sinfuego has not demonstrated a genuine issue of fact whether Curry County acted from an improper motive, as required by the Garcetti / Pickering test's step four. As noted in sub-part B of the Analysis above, Sinfuego contends that Curry County retaliated against her for: (i) her comments on Curry Detention's conditions; (ii) her union-related activities, i.e., her involvement in the December 3, 2012, meeting with Pyle, and the December 6, 2012, text message about a union and Pyle's invitation to meet individually with Curry Officers;
First, Sinfuego contends that she demonstrates a genuine issue of fact about Curry County retaliating for her complaints about Curry Detention's conditions, because she spoke with Pyle at the December 3, 2012, meeting, an anonymous letter was sent, and she signed the Petition from Curry Officers to Sandoval. See Response at 21-22. The Court agrees with Curry County that "[t]he causation threshold that all retaliation plaintiffs must cross at this step is to show that the employer knew about the plaintiff's protected activity before taking the adverse employment action." Dillon v. Twin Peaks Charter Acad., No. CIVA 99-cv-02462-CMA-BNB,
*1254The Petition from the Curry Officers does not discuss "poor conditions" at Curry Detention, Response at 21; many other officers signed the Petition from Curry Officers to Sandoval, see Petition from Curry Officers to Sandoval at 1-2, and Sinfuego has no evidence connecting her signature on the Petition from Curry Officers to Sandoval to Curry County's actions, such as evidence that Curry County opposed the Petition from Curry Officers to Sandoval, see Maestas v. Segura,
Further, Sinfuego has no evidence to show that Pyle, with whom she had the December 3, 2012, meeting, was involved in determining shift assignments or her role in S.O.R.T., see Memo. ¶ 19, at 7-8, and Sinfuego's termination on January 7, 2014, occurred more than one year after the December 3, 2012, meeting, see Memo. ¶ 10, at 4-5; Response ¶ 8, at 5; Memo. ¶ 32, at 11-12 "[E]vidence such as a long delay between the employee's speech and challenged conduct, or evidence of intervening events, tend to undermine any inference of retaliatory motive and weaken the causal link." Maestas v. Segura,
Sinfuego has not proffered evidence to overcome the weak link between the 2012, events and the 2014, termination and strengthen her claim. Sinfuego cites heavily to the Spear Notes. See Response at 21-22. This report, which contains Curry Detention employees' out-of-court complaints about Curry Detention, is inadmissible hearsay, because Sinfuego seeks to introduce it for the truth of the statements the employees make about Curry Detention's leadership, such as the Sandoval's relationship to Pyle. See Fed. R. Evid. 801(c) ; Response at 21. Sinfuego also speculates as to Morrison's and Farkas' transfers from the main Curry Detention facility, see Response at 22, but she cannot produce more than speculation for the reasons behind their transfers. Even if Curry County transferred Morrison and Farkas because they were "associated with Mr. Billy," Response at 20, such an assertion does not bolster Sinfuego's unrelated contention that Curry County acted against her because she complained about Curry Detention's conditions, and it particularly does not do so when she has no other evidence to support her allegation. Further, Sinfuego cites Sandoval's awareness *1255of the conditions at Curry Detention, and of Borjas' and Benavidez' sexual conduct. See Response at 22. Sinfuego presumably references such evidence to suggest that Curry County's alleged reasons for terminating Sinfuego are pretextual and that other concerns motivated Curry County's actions. "When an employer disciplines an employee who has engaged in protected activity more harshly than it treats similarly situated employees who commit comparable or more serious offenses, an inference of improper motive may be drawn." Cillo v. City of Greenwood Vill.,
Second, Sinfuego argues that her employment termination was in retaliation for her union-related activities. See Response at 20-21. Sinfuego has no evidence that Sandoval had knowledge of any of Sinfuego's union-related activities. See Dillon v. Twin Peaks Charter Acad.,
Sinfuego attempts to overcome this lack of evidence by citing again the employees' statements in the Spear Notes about Sandoval and Pyle, Billy's speculation that Curry County retaliated against Sinfuego, and Morrison's and Farkas' transfers. See Response at 20-21. The evidence from the Spear Notes is inadmissible for the truth of the matter asserted, which is the purpose for which Sinfuego offers the evidence. See Fed. R. Evid. 801(c). Billy has no basis in personal knowledge for his statement; he left Curry Detention before Sinfuego's termination. See Deposition of Gerry Billy at 173:1-25; (taken April 29, 2018), filed July 13, 2018 (Doc. 127-1);
Sinfuego tries to argue that her removal from S.O.R.T., her shift to night duties, her disrespected seniority, and her other changes in responsibilities indicate that Curry County disfavored her, so the time between the 2012, text, and the 2014, termination is not as significant as Curry County would have it. See Response at 22. Sinfuego cites Cillo v. City of Greenwood Village,
Third, Sinfuego alleges that Curry County retaliated against her for reporting Hughes' sexual comment. Sinfuego has not demonstrated a genuine issue of fact regarding this question. Sinfuego supports this contention with Billy's speculation whether Curry County retaliated against her for collective bargaining, see Response at 23 (citing Billy Depo. Doc. 185-11 at 169:7-171:8). Such evidence is not only speculation, because Billy has no personal knowledge of Curry County's motivations for acting against Sinfuego, see Billy Depo. Doc. 127-1 at 173:1-25; id. at 174:1-177:8, it also does not support that Curry County terminated Sinfuego for reporting Hughes' sexual conduct. Sinfuego also cites Sandoval's answers to hypothetical situations involving sexual conduct of which Sinfuego has no evidence whether Sandoval was aware. See Response at 23 (citing Sandoval Depo. Doc. 125-12 at 20:20-23; id. at 21:1-4). By citing Sandoval Deposition statements about crude language heard at Curry Detention, and Borjas' and Benavidez' sexual conduct, see Response at 23 (citing Sandoval Depo. Doc. 125-12 at 53:21-25; id. at 56:2-7; id. at 59:10-25), Sinfuego again suggests that Curry County treated her differently from other employees, which implies an improper motive, see Cillo v. City of Greenwood Vill.,
Although Sinfuego generally divides her Response section on causation into paragraphs on Sinfuego's complaints about Curry Detention's conditions, union activities, and sexual harassment statement, the *1257various theories' evidence overlaps. See Response at 20-23. No matter, however, how the evidence is organized, it does not show a genuine dispute of material fact. Sinfuego has not pointed to evidence that shows Curry County treating her differently and acted from improper motivations.
Even when viewed in the light most favorable to Sinfuego, Sinfuego does not establish a causation element for the adverse employment actions that Curry County took. It is Sinfuego's burden under the Garcetti / Pickering test's step four to show that Curry County engaged in retaliation through the adverse employment decisions. See Brammer-Hoelter,
D. CURRY COUNTY TERMINATED SINFUEGO'S EMPLOYMENT, BECAUSE SHE ENGAGED IN INAPPROPRIATE SEX-ORIENTED ACTIONS.
At the Garcetti / Pickering test's step five, the Court determines whether the defendant would have reached the same employment decision in the absence of the protected conduct. See Dixon v. Kirkpatrick,
In Sandoval's December 17, 2013, Letter of Intent to Terminate, Sandoval states that she recommends terminating Sinfuego, and cites that Sinfuego acknowledges that she violated the Curry County sexual harassment policy. See Memo. ¶ 27, at 10. At the pre-determination hearing on December 30, 2013, Sinfuego admitted to engaging in a sexually charged discussion with her coworker on November 13, 2013, and that she sent Snapchat images featuring crude drawings to her coworkers during the "Toxic Talk" training event. Memo. ¶¶ 29-30, at 11 (quoting Pre-Determination Hearing at 10:14-21 and citing Sinfuego Depo. Doc. 122-2 at 234:6-235:23); id. ¶¶ 29-30, at 11 (quoting Pre-Determination Hearing at 15:9-12 and citing Sinfuego Depo. Doc. 122-2 at 235:24-237:24). Further, Sinfuego admitted at the pre-determination hearing that these actions were inappropriate, but did not acknowledge that they were violative of the Curry County sexual harassment policy. See Memo. ¶¶ 29-30, at 11 (citing Pre-Determination Hearing at 10:22-24; id. at 16:15-16); Response ¶ 21(i) (citing Sinfuego Depo. Doc. 125-7 at 57:20-25). When Pyle terminated Sinfuego's employment on January 7, 2014, Pyle concluded that Sinfuego had violated several sections of the Curry County Personnel Policy # 10-03, including the section pertaining to violating the Curry County Workplace Harassment Policy, i.e., Curry County sexual harassment policy. See Memo. ¶ 32, at 12 (citing Letter from Lance Pyle to Amanda Sinfuego at 3-4). A posttermination hearing was held on February 19, 2016, and the hearing officer affirmed Sinfuego's termination and concluded that "ample basis exists for *1258affirmance of the termination of Mrs. Sinfuego's employment with the County," because of Sinfuego's admitted infractions while on duty. See Memo. ¶ 35, at 13 (citing Findings of Fact and Conclusions of Law at 5). Sinfuego appealed this decision, and the Ninth Judicial District of the State of New Mexico upheld the termination, concluding that "[t]he decision was based on substantial evidence." Sinfuego v. Bd. of Cty. Comm'rs for Curry Cty., N.M., D-905-CV-206-112, Decision and Order on Writ of Certiorari at 5.
Sinfuego argues that her actions do not violate the Curry County sexual harassment policy. See Response ¶ 21, at 11. Regarding the workplace discussion on November 13, 2013, Sinfuego argues that the conversation "did not interfere with anyone's ability to do their jobs." Response ¶ 1, at 26. As to the Snapchat images that Sinfuego sent her coworkers, Sinfuego characterizes them as crude humor that did not offend or interfere with job performances. See Response ¶ 2, at 26. The Tenth Circuit has heard similar arguments in the past and has summarily rejected them. See Trant v. Oklahoma,
The board was justified in firing Trant for his misconduct even if it did not result in an actionable sexual harassment claim.... Even though there may not have been an actionable claim of sexual harassment, there was an interest in eliminating the appearance of impropriety. Because "the lawful reason alone would have sufficed to justify the firing," Trant cannot succeed on his claim.
Sinfuego tries to demonstrate a genuine issue of fact by explaining that Curry County treated differently other employees who engaged in sexual conduct. See Response at 26-28. Sinfuego, however, does not proffer admissible evidence to support these contentions, and, even *1259if she offers such evidence, she does not show that Pyle or Sandoval were aware of these activities. To support her arguments, Sinfuego relies on the Spear Notes for the truth of employees' statements about sexual conduct. See Response at 27. Such evidence is inadmissible hearsay, and Sinfuego has not presented an admissible alternative or a non-hearsay purpose. See Fed. R. Evid. 801(c). Sinfuego seeks to introduce the Spear Notes for the employees' allegations against Pyle and Sandoval's truth. Sinfuego also cites assertions that she made in the Sinfuego Deposition about her coworkers' conduct; according to Sinfuego, Hughes came to work intoxicated, grabbed a female officer, and swore at Sinfuego and co-workers, and, Sinfuego argues, a "female officer was caught performing fellatio on another officer in a pod booth were [sic] inmates can see them." Response ¶ 27(vi), at 14-15 (citing Sinfuego Depo. Doc. 125-7 at 261:24-25; id. at 262:7-14). Further, Sinfuego alleges that Borjas stalked Chavez. See Response ¶ 27(vi), at 14 (citing Sinfuego Depo. Doc. 125-7 at 263:4-6). Allegedly, Borjas, and others, came to work intoxicated, and Curry Officer Banda had intimate relations with an inmate. See Response ¶ 27(vi), at 14-15 (citing Sinfuego Depo. Doc. 125-7 at 265:5-18). Further, Sinfuego contends that Curry County did not terminate a booking officer who had sexual relations with an inmate. See Response ¶ 27(viii), at 15 (citing Sinfuego Depo. Doc. 125-7 at 267:8-12). The Court cannot determine from where Sinfuego learned all such information. Sinfuego may have personal knowledge about some such events, like Curry Officers intoxicated at Curry Detention, but the Court suspects that Sinfuego draws other assertions from inadmissible hearsay. See Fed. R. Evid. 801(c). Sinfuego acknowledges that she lacks personal knowledge of all the alleged events. At the Sinfuego Deposition, Sinfuego admitted that she does know personally that a "female officer was caught performing fellatio on another officer," Response at 27; rather, Sinfuego heard about the event through coworkers. See Sinfuego Depo. Doc. 125-7 at 262:15-21. To support the assertion about the inmate's relationship with Banda, Sinfuego cites letters from the inmate. See Sinfuego Depo. Doc. 125-7 at 265:22-24. As Sinfuego relies on third-parties' out-of-court statements to support her assertions' truths, the statements are inadmissible hearsay. See Fed. R. Evid. 801(c). Even if Sinfuego could introduce the evidence, Sinfuego has not shown that Pyle or Sandoval were aware of these sexual activities. See Sinfuego Depo. Doc. § 125-7 at 267:2-4; id. at 267:13-22. Sinfuego cannot show that Curry County hired Benavidez knowing about his sexual conduct. See Sandoval Depo. Doc. at 59:25. Although Sandoval knew that Borjas had a relationship with an inmate, see Response ¶ 27(xi), at 15 (citing Sandoval. Depo. Doc. 125-12 at 56:2-7), Sinfuego has not established what actions or lack of actions Curry County took after an investigation into the relationship, see Sandoval Depo. Doc. 125-12 at 56:8-57:9. Further, Curry County terminated Hughes' employment. See Memo. ¶ 28, at 10-11 (citing Termination of Probationary Employee at 1; Response ¶ 1, at 1. Accordingly, the Court is unconvinced that Sinfuego, through these assertions, has established a genuine issue of fact whether Curry County would have terminated Sinfuego's employment absent a desire to retaliate against her for union-related activities. The Court, thus, concludes that summary judgment is appropriate at this fifth Garcetti / Pickering test step. *1260II. CURRY COUNTY DID NOT HAVE A POLICY OR CUSTOM OF RETALIATING AGAINST EMPLOYEES FOR UNION-RELATED ACTIVITY.
Were Sinfuego able to establish a genuine factual question whether retaliation motivated her termination, she would also need to demonstrate a genuine issue of fact whether Curry County had a policy or custom of retaliation to survive summary judgment on her First Amendment retaliation claims. To establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas,
As noted above, Sinfuego does not demonstrate a genuine issue of material fact whether an officer committed an underlying constitutional violation. Without an individual employee's or agent of Curry County's constitutional violation, Curry County could not have violated the Constitution. See, e.g., Graves v. Thomas,
Sinfuego also cites Morrison's and Farkas' transfers from the Curry Detention's main detention facility, and Curry Detention's leaders' reputation for vengefulness. See Response at 28. These assertions do not demonstrate a genuine factual question whether Curry County had a policy encouraging retaliation. In arguing about the reputation and vengefulness of Curry Detention's leaders, Sinfuego relies on the truth of the employees' statements in the Spear Notes. Such evidence is inadmissible hearsay, and Sinfuego has not demonstrated how she would introduce the evidence in an admissible form. See Fed. R. Evid. 801(c). Sinfuego's contentions regarding the two other Curry officers, Morrison and Farkas, are conclusory at best, as she only can guess to Sandoval's motivation in assigning them to different positions. That Billy's refusal to discipline Sinfuego motivated Curry County to terminate his employment is not sufficient, on its own, to establish that there was a widespread practice of endorsing retaliation. Billy's employment status, plus Sinfuego's employment termination, is not sufficient for a reasonable jury to conclude that Curry County has a policy that rises to the level of "persistent and widespread," which the Tenth Circuit has mandated *1261for plaintiffs to establish a customary practice of retaliation. Lankford v. City of Hobart,
III. AFTER THE COURT DISMISSES SINFUEGO'S FEDERAL CLAIMS, ONLY SINFUEGO'S STATE LAW, NMWPA CLAIM REMAINS, AND SO THE COURT WILL DISMISS THE NMPWA CLAIM WITHOUT PREJUDICE.
Sinfuego's Count IV alleges that Curry County violated the NMWPA. See Complaint ¶¶ 53-60, at 13. United States District Courts are courts of limited jurisdiction, but they may exercise supplemental jurisdiction. See 28 U.S.C. 1367. Because Court has dismissed the federal claims, the Court declines to exercise its supplemental jurisdiction over the remaining state law claim and will dismiss Count IV without prejudice.
The Court will not exercise supplemental jurisdiction over the remaining state-law claim. The supplemental jurisdiction statute enumerates four factors that the Court should consider in determining whether to exercise supplemental jurisdiction:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Here, the Court has dismissed all of the federal claims. Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining state-law claims. See Koch v. City of Del City,
IT IS ORDERED that: (i) Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 121), is granted. Plaintiff Amanda Sinfuego's federal claims against Defendant Curry County Board of County Commissioners are dismissed with prejudice, and Sinfuego's remaining state-law claim is dismissed without prejudice.
Sinfuego and Curry County have filed different pages from the same depositions, and thus the excerpts from the depositions have different docket numbers. The Court will, thus, include the docket number when citing the depositions.
Sinfuego makes no response to this fact. See Response at 1. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disagrees with the paragraph containing the alleged undisputed fact, but Sinfuego does not mention the language quoted by Curry County. See Response ¶¶ 2(i)-(iii), at 1. All that Sinfuego does is quote language about additional concerns. See Response ¶¶ 2(i)-(iii), at 1. That additional language is quoted later in the paragraph in the text. The Court therefore deems the fact that Curry County asserts undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disagrees with the paragraph containing the alleged undisputed fact, but Sinfuego does not dispute that the Memorandum to County Administration contains language about such concerns. See Response ¶¶ 2(i)-(iii), at 1. Sinfuego quotes language about only additional concerns. See Response ¶¶ 2(i)-(iii), at 1. That additional language is quoted later in the paragraph in the text. The Court therefore concludes that the fact that Curry County asserts is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
As discussed supra note 4, Sinfuego does not mention whether the Memorandum to County Administration contains the quoted language. See Response ¶¶ 2(i)-(iii), at 1. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
As discussed supra note 5, Sinfuego does not mention whether the Memorandum to County Administration contains the quoted language. See Response ¶¶ 2(i)-(iii), at 1. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego finds material facts in dispute in Curry County's assertion, but she states only that she met with Pyle on December 3, 2012, and she mentions Garcia when describing the meeting. See Response ¶¶ 3(i)-(ii), at 2. Sinfuego does not discuss the alleged undisputed fact mentioned in the text. See Response ¶¶ 3(i)-(ii), at 2. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph containing this alleged undisputed fact. In response to this fact, however, she states only: "Ms. Sinfuego stated she would be going back to a Detention officer that Monday." Response ¶ 3(i), at 2 (quoting Conf. Tr. at 1:20). Because this fact does not controvert the alleged undisputed fact, the Court therefore deems that fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit this fact, but neither does Curry County purport to dispute it. See Reply at 2-3. Curry County does not mention the fact. See Reply at 2-3. There also does not, however, appear to be any doubt about the fact, and the record suggests it. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego disputes the paragraph containing this alleged undisputed fact, but Sinfuego does not controvert or discuss this particular assertion. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not disagree with this summary of the discussion, but Curry County clarifies that Garcia -- not Sinfuego -- made the comments to Pyle about these concerns. See Reply at 2-3. There also does not, however, appear to be any doubt about the fact, and the record suggests it. Because Curry County does not controvert that the conference included discussions about these matters, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Curry County asserts this fact in the Reply. Sinfuego had an opportunity to respond to this fact at the hearing but did not mention it. Further, Sinfuego cites Garcia's statement in the record when paraphrasing the conference. See Response ¶¶ 3(ii)-(iii), at 2. Both parties, therefore, appear to agree that the statement in the text was made. Accordingly, the Court deems this fact undisputed.
For the reasons explained supra note 12, the Court deems this fact undisputed.
For the reasons explained supra note 12, the Court deems this fact undisputed.
For the reasons explained supra note 12, the Court deems this fact undisputed.
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit this fact, but neither does Curry County dispute it. See Reply at 2-3. Curry County does not mention it. See Reply at 2-3. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego mentions additional facts, discussed in the preceding footnotes and text, about the December 3, 2012, meeting and disputes whether Pyle told the truth in the quotation in the text, but she does not admit or deny that Pyle made this statement. See Response ¶¶ 4(i)-(iii), at 3-4. Sinfuego does not mention whether Pyle made the statement. See Response ¶¶ 4(i)-(iii), at 3-4. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 2-4. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems that the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Curry County states that Sinfuego testified to this fact. See Memo. ¶ 7, at 3. Sinfuego provides no response as to whether the facts to which Sinfuego testified occurred. See Response ¶¶ 7(i)-(iii); id. ¶ 3 (vi), at 2. The parties have provided no evidence, however, suggesting to the Court that Pyle did not post and distribute letters as Sinfuego described. The Court, accordingly, deems that the fact occurred and is undisputed.
Sinfuego purportedly disputes material facts related to the letter. See Response ¶¶ 6(i)-(iv), at 4-5. Sinfuego, however, does not mention the text of the letter. See Response ¶¶ 6(i)-(iv), at 4-5. She cites additional facts, which are discussed in the text's following paragraphs, surrounding Pyle's communications with the Curry Officers after the December 3, 2012, meeting, see Response ¶¶ 6(i)-(iv), at 4-5, and references Billy's testimony that the letter could be "improper" and that Pyle wanted to scare the Curry Officers, Response ¶¶ 6(iii)-(iv), at 4-5 (citing Deposition of Gerry Billy at 95:17-22 (taken April 29, 2018), filed June 27, 2018 (Doc. 125-11)("Billy Depo. Doc. 125-11"); id. at 163:1-2). Because Sinfuego does not mention the letter's text, the Court deems this fact is also undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 3-4. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes this alleged undisputed fact, but Sinfuego does not admit or deny that she believed what the fact alleges. See Response ¶¶ 5(i)-(iii), at 4; id. ¶¶ 3(i)-(xii). Sinfuego instead expands on the events preceding and following Pyle's letters to the Curry Officers. See Response ¶¶ 5(i), at 4; id. ¶¶ 3(i)-(xii). Sinfuego does not discuss the alleged undisputed fact. See Response ¶¶ 5(i)-(iii), at 4; id. ¶¶ 3(i)-(xii). The Court therefore deems that the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 3-4. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore concludes that the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 3-4. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph of alleged undisputed facts containing this fact. See Response ¶¶ 7(i)-(iii), at 5. Sinfuego does not, however, admit or deny that Pyle sent the email to Billy. See Response ¶¶ 7(i)-(iii), at 5. Sinfuego does not mention it when responding to the Memo.'s paragraph discussing the fact. See Response ¶¶ 7(i)-(iii), at 5. Sinfuego quotes, however, from the same email in Response ¶ 3(vi), and the record supports that the email was sent as described. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph containing this alleged undisputed fact, but Sinfuego does not admit or deny that Pyle's email contained the quoted language. See Response ¶¶ 7(i)-(iii), at 5. Sinfuego does not mention the language. See Response ¶¶ 7(i)-(iii), at 5. The Court therefore deems this language undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County neither admits nor denies this fact. See Reply at 2-4. Curry County does not mention it. See Reply at 2-4. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego admits that she sent the text message as quoted, but she disputes Curry County's description, in its section heading, of the text as "inappropriate." Response ¶ 8, at 5. In its Reply, Curry County argues that the text was inappropriate. See Reply at 4 n.3. This argument does not controvert Curry County's facts. Accordingly, the Court concludes that the fact is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph containing this alleged undisputed fact in the Memorandum. See Response ¶¶ 9(i)-(ii), at 5. Sinfuego, however, does not admit or deny the fact. See Response ¶¶ 9(i)-(ii), at 5. She does not mention it. See Response ¶¶ 9(i)-(ii), at 5. Because Sinfuego does not dispute the facts in the text, the Court deems the fact about Sinfuego's beliefs undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the numbered paragraph containing this alleged undisputed fact. See Response ¶ 10, at 5. In responding, however, Sinfuego references only other facts. See Response ¶¶ 10(i)-(ii), at 5; id. ¶¶ 5(ii)-(iii), at 4; id. ¶¶ 6(iii)-(iv), at 4-5. Sinfuego does not admit or deny the fact about her text message. See Response ¶¶ 10(i)-(ii), at 5. She does not mention it. See Response ¶¶ 10(i)-(ii), at 5. Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit nor deny this fact. See Reply at 2-4. Curry County does not mention it. See Reply at 2-4. Moreover, the record reflects this fact. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit nor deny this fact. See Reply at 2-4. Curry County does not mention it. See Reply at 2-4. Further, the record reflects this fact. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit nor deny this fact. See Reply at 2-4. Curry County does not mention it. See Reply at 2-4. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego purports to dispute the paragraph discussing these alleged undisputed facts. See Response ¶¶ 11(i)-(x), at 5-7. Nevertheless, Sinfuego does not admit or refute these particular facts. See Response ¶¶ 11(i)-(x), at 5-7. Sinfuego does not mention them. See Response ¶¶ 11(i)-(x), at 5-7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purports to dispute the paragraph discussing these alleged undisputed facts. See Response ¶¶ 11(i)-(x), at 5-7. Nevertheless, Sinfuego does not admit or refute these particular facts. See Response ¶¶ 11(i)-(x), at 5-7. Sinfuego does not mention them. See Response ¶¶ 11(i)-(x), at 5-7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not disagree with Sinfuego's reference to these facts, but Curry County also does not admit them. See Reply at 5. Curry County did not address this quotation. See Reply at 5. Because Curry County does not dispute these quotations, the Court deems them undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego does not admit or dispute that Curry County terminated Billy's employment. See Response ¶ 12, at 7. Sinfuego does not address the fact, but Sinfuego purports to dispute the paragraph containing the alleged undisputed fact. See Response ¶ 12, at 7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County offers no response to this fact. See Reply at 5. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
This Memorandum Opinion and Order mentions two "Sandovals" -- Tori Sandoval and Bobbie Sandoval, a Curry County Commissioner. Bobbie Sandoval plays a limited role in this suit. The Court, therefore, refers to Tori Sandoval as "Sandoval" and uses "Bobbie Sandoval" in its few references to Bobbie Sandoval.
Although Sinfuego purportedly disputes the numbered paragraph in the Memorandum containing this fact, Sinfuego neither admits nor denies this fact. See Response ¶ 12(i), at 7. Sinfuego does not mention it. See Response ¶ 12(i), at 7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. In the Reply, Curry County contends that Sinfuego draws the alleged undisputed fact from Commissioner Chet Spear's 2014 notes recording Curry Detention employees' grievances, see Chet Spear Notes, filed June 27, 2018 (Doc. 125-18)("Spear Notes"), which Curry County argues are hearsay. See Reply at 5 n.4. The Court discusses infra note 49 whether the Spear Notes are hearsay. Sinfuego does not, however, pull the alleged undisputed fact from the Spear Notes. See Response ¶ 11(iv), at 6. Sinfuego draws the alleged undisputed fact from Farkas' and Morrison's testimony. See Response ¶ 11(iv), at 6. Curry County does not otherwise dispute the alleged undisputed fact in the text's truth, because Curry County states only: "The fact that two other employees ... were also transferred to other shifts by Ms. Sandoval, if anything, undercuts Plaintiff's claims of retaliation." Reply at 6. Curry County also does not admit the fact. See Reply at 6. Curry County's argument that the fact undercuts Sinfuego's retaliation claims does not, however, controvert the fact in the Response. See Reply at 5-6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Curry County does not state these facts as facts, but rather, explains that Sinfuego testified to these facts. See Memo. ¶ 18, at 7 (citing Sinfuego Depo. Doc. 122-1 at 154:9-158:1). Nevertheless, by citing the testimony, Curry County appears to treat the events as having occurred. Sinfuego also treats these facts as having occurred. See Response § 11(iv)-(vi), at 6 (citing Sinfuego Depo. Doc. 125-7 at 154:18-25; id. at 155:1-25; id. at 157:9-15; id. at 294:14-15; id. at 295:3-15). The parties thus treat the testimony as true, and there is nothing in the record to indicate that the events described in the text did not occur. The Court, therefore, concludes that these facts occurred and are undisputed.
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not respond to this fact. See Reply at 5-6. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph containing alleged undisputed fact. Sinfuego, however, does not admit, deny, or mention the fact. See Response ¶¶ 14(i)-(ii), at 7-8. Rather, Sinfuego incorporates by reference several facts described in the text, including Pyle's opinions regarding disciplining Sinfuego for the text message and the changes in Sinfuego's, Morrison's, and Farkas' duties, which do not controvert the alleged undisputed fact in the text. See Response ¶¶ 14(i)-(ii), at 7-8. In responding to the fact, Sinfuego also describes Sandoval as Pyle's "snitch," who was rewarded Billy's job after his termination and who had a "hammer" on Pyle. Response ¶ 14(iv), at 8. To support these latter assertions, Sinfuego cites the Spear Notes. See Response ¶ 14(iv), at 8. See generally Spear Notes. Regarding the employees' complaints, Sinfuego encounters a problem under rule 801(c) of the Federal Rules of Evidence's prohibition on hearsay. See Fed. R. Evid. 801(c). The Court can consider hearsay in ruling on a summary judgment, when the hearsay evidence can be presented in an admissible form at trial. See Cheslek v. Bank, CIV 15-0348 JB/WPL,
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County argues that the undated petition does not help Sinfuego's claim, but Curry County does not dispute the fact. See Reply at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the paragraph containing the alleged undisputed fact. Sinfuego, however, does not admit, deny, or mention the fact. See Response ¶¶ 14(i)-(ii), at 7-8. Rather, Sinfuego incorporates by reference several facts described in the text above, including Pyle's opinions regarding disciplining Sinfuego for the text message and the changes in Sinfuego, Morrison, and Farkas' duties, which do not controvert the alleged undisputed fact in the text. See Response ¶¶ 14(i)-(ii), at 7-8. In responding to the fact, Sinfuego also describes Sandoval as Pyle's "snitch," who was rewarded Billy's job after his termination and who had a "hammer" on Pyle. Response ¶ 14(iv), at 8. To support these latter assertions, Sinfuego cites the Spear Notes. See Response ¶ 14(iv), at 8. See generally Spear Notes. As the Court discussed supra note 49, the Spear notes are inadmissible hearsay. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego does not specifically dispute this fact, but clarifies that Garcia requested the statement. See Response, ¶ 15(i), at 8 (citing Statement from Rene Garcia at 1 (dated Nov. 15, 2013), filed June 27, 2018 (Doc. 125-15) ). Because Sinfuego only clarifies the fact and does not contravene the fact, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or dispute this fact. See Reply at 6. Curry County does not mention it. See Reply at 6. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, dispute, or mention this fact. See Reply at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Although Sinfuego states that she disputes issues regarding the numbered paragraph containing this alleged undisputed fact, Sinfuego does not mention this fact. See Response ¶¶ 16(i)-(ii), at 8-9. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego explains that she disputes issues regarding the numbered paragraph discussing this alleged undisputed fact, but she does not specifically controvert this fact. See Response ¶¶ 17(i)-(v), at 8-9. Sinfuego, instead, describes that she did not encourage the conversation, see Response ¶¶ 17(i), (iv) (citing Posttermination Hearing Reporter's Record at 89:24-25 (taken Feb. 19, 2016), filed June 27, 2018 (Doc. 125-14)("Posttermination Hearing Reporter's Record Doc. 125-14"); id., at 90:1; id. at 95:5-18); that the conversation did not interfere with others' work, see Response ¶ 17(iii) (citing Posttermination Hearing Reporter's Record Doc. 125-14 at 89:15-17); and that the comment did not constitute sexual harassment, see Response ¶ 17(ii)(citing Sinfuego Depo. Doc. 125-7 at 300:7-12). These statements describe Sinfuego's role in the conversation, but they do not controvert that Hughes told Schwebke about the conversation or that the conversation occurred. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County dismisses this fact as Sinfuego trying to "downplay" her part in the conversation. Reply at 6-7. Curry County does not, however, admit or controvert this fact. See Reply at 6-7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego contends that she disputes the numbered paragraph in the Memorandum containing this fact. See Response ¶ 18, at 10. Sinfuego does not mention, however, the fact in the text. See Response ¶¶ 18(i)-(vi), at 10. In responding, Sinfuego incorporates by reference only additional facts discussed elsewhere in the text and footnotes unrelated to the fact in the text, see Response ¶ 18(i), at 10; id. ¶¶ 15(i)-(iii), at 8, and she makes additional statements, also unrelated to the fact in the text and with which Curry County disagrees, minimizing her conduct, see Response ¶ 18(iv), at 10 (citing Sinfuego Depo. Doc. 125-7 at 240:12-25; id. at 241:1-2; id. at 241:5-6); id. ¶ 18 (v), at 10 (quoting Sinfuego Depo. Doc. 125-7 at 251:13-17); id. ¶¶ 18(iii), (vi), at 10; Reply at 7. The Court deems therefore this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County responds to this fact by contending that Sinfuego is attempting to "downplay" her actions. Reply at 6-7. Such a response does not controvert the fact. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or dispute this fact. See Reply at 6-7. Curry County describes the fact as Sinfuego "downplay[ing]" her role in the conversation. Reply at 6-7. Because this statement does not contravene the alleged undisputed fact in the text, he Court accordingly deems these facts undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or dispute this fact. See Reply at 6-7. Curry County describes the fact as Sinfuego "downplay[ing]" her role in the conversation. Reply at 6-7. As this statement does not contravene the alleged undisputed fact in the text, the Court accordingly deems these facts undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
"According to the Wikipedia entry for 'Snapchat,' the application 'is primarily used for creating multimedia messages referred to as 'snaps'; snaps can consist of a photo or short video, and can be edited to include filters and effects, text captions, and drawings.' " Memo. at 9 n.2 (quoting Wikipedia, https://en.wikipedia.org/wiki/Snapchat (last visited June 5, 2018) ).
The "Toxic Talk" training was a training that Curry County provided to educate employees about recognizing "gossip, gripes and rumors" and such talk's consequences. See Memo. at 9 n.3; Memo. ¶ 25, at 9. Sinfuego does not respond to this description. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes the numbered paragraph containing this alleged undisputed fact. She does not, however, dispute that Hughes told Schwebke about the image or that Sinfuego took and sent the image. See Response ¶¶ 16(i)-(ii). Sinfuego states only that the image was small and that other co-workers laughed. See Response ¶¶ 16(i)-(ii)(citing Sinfuego Depo. Doc. 125-7 at 231:18-22; id. at 299:1-21). As this statement does not contravene the fact, the Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego claims to dispute issues regarding the paragraph stating this fact, but she responds to this fact only by referencing additional facts previously discussed in the text and footnotes. See Response ¶ 18(i). Sinfuego also comments that "she did not think the drawing was a form of toxic talk." Response ¶ 18(ii). None of Sinfuego's contentions controvert the fact that Sinfuego admitted to creating and sending the image. The Court deems therefore this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County responds that Sinfuego is attempting to "downplay" her actions. See Reply at 6-7. This response does not controvert the alleged undisputed fact. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the paragraph containing this alleged undisputed fact, but she does not mention this fact or what the report contained. See Response ¶¶ 19(i)-(iv). Sinfuego, rather, discusses her characterization of her actions and the investigation, which are descriptions that Curry County genuinely disputes. See Response ¶¶ 19(i)-(iv), at 10; id. ¶¶ 19(ii), (iii), at 10; Reply at 7. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
As
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 7. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the paragraph containing this alleged undisputed fact. See Response ¶ 20, at 10. Sinfuego does not admit or dispute, however, that the letter was sent, and assumes that Sandoval sent the letter. See Response ¶¶ 20(i)-(iii), at 11. Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the paragraph containing this alleged undisputed fact. See Response ¶ 20, at 10. Sinfuego does not, however, address the letter's contents. See Response ¶¶ 20(i)-(iii), at 11. Rather, she assumes the contents and disputes the letter's conclusions. See Response ¶¶ 20(i)-(iii), at 11. Accordingly, the Court deems this fact -- that the letter included these statements -- undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Regarding this fact, Curry County states only: "Even if accepted as true, these facts do not advance any of Plaintiff's theories of the case...." Reply at 8. Curry County does not provide evidence to dispute the fact's veracity or challenge Sinfuego's evidence. See Reply at 7. The Court therefore deems that this fact is not genuinely disputed pursuant to rule 56(c)(1)(A)-(B) of the Federal Rules of Civil Procedure, which states:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B).
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text as undisputed facts that Sinfuego mentions in her Response. Regarding this fact, Curry County states only: "Even if accepted as true, these facts do not advance any of Plaintiff's theories of the case...." Reply at 8. Curry County does not provide evidence to dispute the fact's veracity or challenge Sinfuego's evidence. See Reply at 7. The Court therefore deems that this fact is not genuinely disputed pursuant to rule 56(c)(1)(A)-(B) of the Federal Rules of Civil Procedure, which states:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B).
Sinfuego disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 21, at 11. Sinfuego does not controvert, however, that the meeting occurred. See Response ¶¶ 21(i)-(v), at 11-12. Sinfuego, instead, disputes whether she engaged in sexual harassment. See Response ¶¶ 21(i)-(v), at 11-12. Because Sinfuego does not dispute the alleged undisputed fact in the text, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego contends that she disagrees with issues regarding the numbered paragraph in the Memo. reflecting these quotations. See Response ¶ 21, at 11; id. ¶ 22, at 12. Sinfuego, however, does not mention whether she made these admissions. See Response ¶¶ 21(i)-(v), at 11-12; id. ¶¶ 22(i)-(ii), at 12. Sinfuego, rather, references additional facts discussed in the text of the Court's opinion. See Response ¶¶ 21(i)-(v), at 11-12; id. ¶¶ 22(i)-(ii), at 12. As Sinfuego does not contravene the alleged undisputed fact in the text, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purports to dispute issues regarding the numbered paragraph containing this fact. See Response ¶ 21, at 11; id. ¶ 22, at 12. Sinfuego does not mention, however, whether she made such an admission. See Response ¶¶ 21(i)-(v), at 11-12; id. ¶¶ 22(i)-(ii), at 12. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 23, at 12. Sinfuego does not respond, however, whether she made the admission in the text. See Response ¶¶ 23(i)-(vi), at 12. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purports to dispute issues regarding the numbered paragraph containing this fact. See Response ¶ 24, at 12. Sinfuego does not, however, respond whether Pyle sent the termination letter. See Response ¶¶ 24(i)-(iv), at 12-13. Sinfuego does not mention the letter. See Response ¶¶ 24(i)-(iv), at 12-13. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purports to dispute issues regarding the numbered paragraph containing this fact. See Response ¶ 24, at 12. Sinfuego does not discuss, however, the quotation from the letter. See Response ¶¶ 24(i)-(iv), at 12-13. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County mentions this hearing in a footnote, and Sinfuego does not mention this footnote. See Memo. at 12 n.5; Response ¶¶ 25(i)-(iii), at 12-13. Sinfuego references, however, the results from this hearing. See Response ¶¶ 24(iv), 25 (ii) at 13. Because both parties note that this hearing occurred, the Court concludes that the hearing occurred and the fact in the text is undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or deny this fact. See Reply at 9-10. Curry County does not mention it. See Reply at 9-10. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego purportedly disputes issues regarding the numbered paragraph to which the footnote containing this fact refers, but Sinfuego does not mention the footnote. See Response ¶¶ 25(i)-(iii), at 12-13. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 25, at 13. Sinfuego, however, discusses only additional facts already mentioned in the text and footnotes, and she does not mention whether the hearing occurred. See Response ¶¶ 25(i)-(iii), at 13-14. Because the facts Sinfuego mentions do not controvert the fact in the text, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 25, at 13. Sinfuego, however, discusses only additional facts already mentioned in the text and footnotes, and she does not mention what Sinfuego said during the hearing. See Response ¶¶ 25(i)-(iii), at 13-14. Because the facts Sinfuego mentions do not controvert the quotation in the text, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 25, at 13. Sinfuego, however, discusses only additional facts -- facts already mentioned in the text and footnotes or with which Curry County disagrees, and she does not mention what Sinfuego said during the hearing. See Response ¶¶ 25(i)-(iii), at 13-14; Reply at 9. Because the facts Sinfuego mentions do not controvert the quotation in the text, the Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this alleged undisputed fact. See Response ¶ 26, at 14. Sinfuego does not, however, mention Swingle's determination. See Response ¶ 26(i) at 14. Because the facts Sinfuego mentions do not controvert the quotation in the text, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Regarding this fact, Curry County states only: "[E]ven if true, these facts do not excuse Plaintiff's own misconduct in sending picture [sic] of a penis to her coworkers during mandatory employee training being provided by Curry County." Reply at 8. Curry County does not provide evidence to dispute the fact's veracity or challenge Sinfuego's evidence. See Reply at 8. The Court therefore deems that this fact is not genuinely disputed pursuant to rule 56(c)(1)(A)-(B) of the Federal Rules of Civil Procedure, which states:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B).
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or dispute this fact's veracity. See Reply at 10-11. Curry County focuses on whether Pyle or Sandoval knew about this fact. See Reply at 10-11. This argument does not contravene the alleged undisputed fact in the text. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 7. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M-LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 7. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M-LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 8. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this quotation. See Response ¶ 23, at 12. Sinfuego does not, however, respond whether she made the statement in the text. See Response ¶¶ 23(i-vi), at 12. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego states in her Response: "Richard Benavidez was re-hired as a Captain despite having been previously fired from the Detention Center for having pornographic materials in his locker." Response ¶ 20(iv), at 12. Sinfuego cites no evidence in the record for her statement, and the Court has not seen evidence in the record supporting her assertion. Curry County clarifies that Sandoval learned about the materials after hiring Benavidez, and the record to which Sinfuego cites reflects Curry County's clarification. See Reply at 8-9; Sandoval Depo. Doc. 125-12 at 59:10-25. Accordingly, the Court deems the fact to be as stated in the text and to be undisputed.
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit, deny, or mention this fact. See Reply at 7. Moreover, there is nothing in the record that suggests that the fact is disputed. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Curry County neither admits nor denies this fact; instead, Curry County states: "Rather than controvert these indisputable facts, Plaintiff highlights Mr. Billy's personal and irrelevant opinion that Plaintiff should not have been written up for her transgressions." Reply at 8. "The Court has previously held that a 'relevance argument similarly does not dispute the fact' and that 'relevance is a legal argument that is best left for the Analysis Section' of this opinion." Gallegos v. Bernalillo Cty. Bd. of Cty. Comm'rs, No. CIV 16-0127 JB/JHR,
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or deny this fact. See Reply at 9. Curry County does not mention it. See Reply at 9. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or deny this fact. See Reply at 10-11. Curry County does not mention it. See Reply at 10-11. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this quotation. See Response ¶ 27, at 14-15. Sinfuego does not respond, however, to the alleged undisputed fact in the text. See Response ¶¶ 27(i)-(xii), at 14-15. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this quotation. See Response ¶ 27. Sinfuego does not respond, however, to the alleged undisputed fact in the text. See Response ¶¶ 27(i)-(xii), at 14-15. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
While Sinfuego, pursuant to D.N.M.LR-Civ. 56.1(b), includes a section stating additional facts, she scatters additional facts throughout her Response. The Court wants to be fair to Sinfuego in including the facts that she deems relevant, but the Court must also be careful in adding facts to the text of the Court's opinion as undisputed facts that Sinfuego mentions in her Response. Curry County does not admit or deny this fact. See Reply at 10-11. Curry County does not mention it. See Reply at 10-11. Moreover, there is nothing in the record that suggests that the fact is disputed. Finally, the Court must resolve all reasonable doubts in the non-movant's favor. See Hunt v. Cromartie,
Sinfuego states that Sinfuego "spoke to [Pyle] about the conditions in the jail at least once." Response ¶ 27(iii) (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 83:11-19). Curry County notes that Sinfuego cites testimony about the December 3, 2012, meeting. See Reply at 10. Because the parties differ only in language about the meeting, the Court deems the fact that they discussed conditions in the jail in the meeting with Pyle undisputed. Regarding the other alleged undisputed facts in the text, Sinfuego purportedly disputes issues regarding the numbered paragraph containing this quotation. See Response ¶ 28. Sinfuego does not, however, respond to the alleged undisputed fact in the text. See Response ¶ 28(i), at 16; id. ¶¶ 27(i)-(xii), at 14-15. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
Sinfuego purportedly disputes issues regarding the numbered paragraph containing this quotation. See Response ¶ 27. Sinfuego does not respond, however, to the alleged undisputed fact in the text. See Response ¶¶ 27(i)-(xii), at 14-15. Moreover, there is nothing in the record that suggests that the fact is disputed in any way. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").
The Court's citations to the hearing transcript refer to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
The "[c]at's paw doctrine" is a theory "whereby an employer may be liable for the acts of a biased subordinate, even if that subordinate is not the formal decisionmaker." Equal Emp't Opportunity Comm'n v. BCI Coca-Cola Bottling Co. of Los Angeles,
Although the Honorable William J. Brennan, Jr., then-Associate Justice of the Supreme Court, dissented in Celotex, this sentence is widely understood to be an accurate statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727, at 470 (3d ed. 1998) ("Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.").
Rhoads v. Miller is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent ... [a]nd we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision. United States v. Austin,
The Tenth Circuit has recognized that, "there was some confusion in our circuit as to what qualifies as an adverse employment action in the context of First Amendment retaliation." Hook v. Regents of Univ. of Cal.,
Black's Law Dictionary defines "pendent jurisdiction" as: "A court's jurisdiction to hear and determine a claim over which it would not otherwise have jurisdiction, because the claim arises from the same transaction or occurrence as another claim that is properly before the court." Jurisdiction, Black's Law Dictionary (10th ed. 2014).
Black's Law Dictionary defines "ancillary jurisdiction" as: "court's jurisdiction to adjudicate claims and proceedings related to a claim that is properly before the court." Jurisdiction, Black's Law Dictionary, supra.
Black's Law Dictionary defines "pendent-party jurisdiction" as: "A court's jurisdiction to adjudicate a claim against a party who is not otherwise subject to the court's jurisdiction, because the claim by or against that party arises from the same transaction or occurrence as another claim that is properly before the court." Jurisdiction, Black's Law Dictionary, supra.
The Judicial Improvements Act of 1990 is codified at: 5 U.S.C. § 8440c ; 17 U.S.C. §§ 106A, 120 ;
New Mexico Tort Claims Act,
The individual defendants -- Sandoval and Pyle -- have been dismissed from the case. See Stipulated Voluntary Dismissal with Prejudice of All Claims Against Tori Sandoval at 1; Stipulation of Voluntary Dismissal of Claims Against Defendant Lance Pyle in His Official Capacity at 1; First MOO at 1, 29,
The Tenth Circuit has stated the Garcetti / Pickering test:
First, the court must determine whether the employee speaks pursuant to his official duties. If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created. Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine whether the employee's interest in commenting on the issue outweighs the interest of the state as employer. Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a motivating factor in a detrimental employment decision. Finally, if the employee establishes that his speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech.
Couch v. Bd. of Trs. of Mem'l Hosp.,
The Court notes that the exception from the public concern requirement for public-employee labor unions with collective bargaining agreements is inconsistent with the language from Merrifield. See Merrifield,
Whether an action is an adverse employment action is a factual question for the jury; the inquiry is not a question of law for the Court. See Baca v. Sklar,
In Baca v. Sklar, the Tenth Circuit held that removing an employee from "supervisory responsibilities," "encouraging" his subordinate employees to bypass him to receive supervision from another individual, "reprimanding" the employee "in contravention of university protocol, and filing an OEO charge against [the employee] and then using that charge to demand [his] resignation" constitute adverse employment actions.
For the public-concern analysis, the Court listed the December 3, 2012, meeting and December 6, 2012, text individually. However, for the causation requirement's purposes, the Court concludes that clarity requires discussing these events jointly as union-related activities.
Although Sandoval knew about Sinfuego's signature on this Petition from the Curry Officers to Administrator Sandoval, as discussed in sub-part B, the contents of the Petition from the Curry Officers to Administrator Sandoval did not address a public concern.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.