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                                                               New Mexico Compilation
                                                             Commission, Santa Fe, NM
                                                            '00'04- 10:30:32 2012.06.14

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-059

Filing Date: April 19, 2012

Docket No. 30,726

MARIA RODRIGUEZ,

       Plaintiff-Appellant,

v.

NEW MEXICO DEPARTMENT
OF WORKFORCE SOLUTIONS,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Jerald A. Valentine, District Judge

Law Offices of E. Justin Pennington
E. Justin Pennington
Albuquerque, NM

for Appellant

Sandenaw Law Firm, P.C.
CaraLyn Banks
Las Cruces, NM

for Appellee

                                       OPINION

SUTIN, Judge.

{1}    This appeal pits the New Mexico Personnel Act against the New Mexico Human
Rights Act on the question of which law is controlling when a discharged probationary state
employee with no property interest in continuing employment seeks relief under the Human
Rights Act for sex and age discrimination. The district court dismissed the employee’s
Human Rights Act claim on the ground that, under the Personnel Act, the State agency was
permitted to terminate the probationary employee’s employment without cause even if the

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termination was based on sex or age discrimination. We disagree and hold that the employee
can pursue a claim under the Human Rights Act.

BACKGROUND

{2}     Plaintiff Maria Rodriguez was hired by Defendant New Mexico Department of
Workforce Solutions (the Department) first as a temporary employee and then as a
probationary employee. While she was a probationary employee, she was given a notice of
dismissal from her position pursuant to the New Mexico Personnel Act, NMSA 1978, §§ 10-
9-1 to -25 (1961, as amended through 2009).

{3}      Under the Personnel Act, “‘employee’ means a person in a position . . . who has
completed his probationary period[.]” Section 10-9-3(I). A probationary employee is
referred to as a “probationer,” meaning “a person . . . who is still in the probationary period
for that position.” Section 10-9-3(J). State Personnel Board Regulation 1.7.1.7(CC) NMAC
(3/31/2006) (amended 10/15/2008) states that “probationer” means “an employee in the
classified service who has not completed the one-year probationary period.” And 1.7.11.11
NMAC (11/14/2002), as it relates to probationers, states that “[p]robationers . . . may be
suspended, demoted, or dismissed effective immediately with written notice and without
right of appeal to the board.”

{4}     Following her discharge, Plaintiff filed a claim with the New Mexico Department of
Labor, Human Rights Division and the Equal Employment Opportunity Commission against
the Department alleging discrimination and retaliation based on her sex and age. After
exhaustion of her administrative remedies, Plaintiff filed a notice of appeal and complaint
in the district court asserting discrimination and retaliation under the New Mexico Human
Rights Act, NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2007). See § 28-1-
10(A), (D), (J) (setting out grievance procedures); § 28-1-13 (setting out appeal procedure).

{5}     The Department filed a motion for summary judgment, asserting that, because
Plaintiff was a probationary employee and therefore had no property interest in continuing
employment, the court lacked jurisdiction to consider Plaintiff’s constitutional claims. In
its memorandum in support of its motion, the undisputed facts upon which the Department
relied for summary judgment were: (1) Plaintiff was hired on a temporary basis to fill a
ninety-day position; (2) Plaintiff willingly accepted temporary and part-time employment
and her exclusions from the Public Employee Retirement Benefit Association (PERA);
(3) Plaintiff was selected for a second ninety-day part-time temporary position and again
willingly accepted the temporary, part-time position and exclusions from PERA benefits;
(4) Plaintiff later accepted a temporary position for an additional thirty days or until a
permanent position was filled; (5) Plaintiff was then hired on a full-time basis to fill an
administrative position; and (6) during her probationary period, Plaintiff was notified of her
dismissal.




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{6}      In its summary judgment documents, the Department pointed to no particular
“constitutional claims.” Its “concise statement” of the issues was that the district court
“lack[ed] jurisdiction to consider Plaintiff’s claim as Plaintiff was a probationary employee
for all times pertinent to this litigation and therefore has no property interest in continued
employment with [the] Department[.]” The court granted the Department’s motion for
summary judgment based on findings that Plaintiff was a probationary employee at the time
her employment was terminated and that the Department was permitted to terminate
Plaintiff’s employment without cause during her probationary period.

{7}     Plaintiff appeals from the summary judgment in the Department’s favor. On appeal,
Plaintiff argues that the district court erred in concluding that the protections against
discrimination and retaliation contained in the Human Rights Act do not apply to
probationary employees of the State of New Mexico who have been discharged pursuant to
the Personnel Act. We agree with Plaintiff.

DISCUSSION

{8}     No factual issues are disputed. We review the grant of the motion for summary
judgment de novo. Beggs v. City of Portales, 2009-NMSC-023, ¶ 10, 146 N.M. 372, 210
P.3d 798. The critical issue is one of first impression. The issue as stated by the Department
is whether the district court had jurisdiction to consider discrimination and retaliation claims
asserted under the Human Rights Act when a probationary state employee claimant who is
discharged under the Personnel Act has no property interest in continuing employment.

{9}    The Department primarily bases its lack of jurisdiction position on two federal cases
involving claims under 42 U.S.C. § 1983 (1996). See Lighton v. Univ. of Utah, 209 F.3d
1213, 1221 (10th Cir. 2000) (stating that § 1983 claims are actionable only where the
employee possesses a property or liberty interest in the employment); Russillo v.
Scarborough, 935 F.2d 1167, 1170, 1174 (10th Cir. 1991) (affirming the district court’s
grant of summary judgment in favor of the employer as to the plaintiff’s § 1983 claim
because, as an “at-will” employee, the plaintiff had no protected property interest in his
employment).

{10} Tied into Russillo, the Department relies on Lovato v. City of Albuquerque, 106 N.M.
287, 742 P.2d 499 (1987), a mandamus action seeking to require the defendant to grant a
hearing on the merits of the plaintiff’s transfer and pay reduction. The language on which
the Department relies from Lovato, and which was contained in Russillo, 935 F.2d at 1170,
is the statement that the plaintiff’s “employment status was a protected property interest only
if he had an express or implied right to continued employment.” Lovato, 106 N.M. at 289-
90, 742 P.2d at 501-02.

{11} In addition, the Department relies on Cockrell v. Bd. of Regents of N.M. State Univ.,
1999-NMCA-073, 127 N.M. 478, 983 P.2d 427. Cockrell involved a claim for damages
under 42 U.S.C. § 1983, a defense of qualified immunity, and an issue of whether the

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plaintiff was deprived of a property interest without due process of law when his
employment was terminated. Id. ¶ 3. The Court in Cockrell stated:

        The key dispute under the [employee] [m]anual is whether [the employee]
        was still a probationary employee at the time of his termination.
        Probationary employees have no expectancy of continued employment and
        may be terminated without cause and without procedural protections such as
        notice and a hearing. Non-probationary employees, on the other hand, do
        have such an expectancy in that they can only be discharged for good cause
        and by way of due process grievance procedures. There is no dispute that if
        [the employee] was still a probationary employee at the time of his
        termination, then his discharge satisfied the [m]anual. However, if by then,
        he was more than a mere probationary employee, then it is equally settled
        that he did not receive the protections owed him under the [m]anual. More
        importantly, for purposes of this appeal, as a non-probationary employee [the
        employee] would have an expectancy of continued employment which
        cannot be eliminated arbitrarily without due process of law.

Id. The Department further relies on Clark v. Children, Youth & Families Dep’t, 1999-
NMCA-114, 128 N.M. 18, 988 P.2d 888, a decision that solely involved a probationary
employee’s status under the Personnel Act, and also relying on Lovato, 106 N.M. at 289, 742
P.2d at 501, for the proposition that Plaintiff cannot state a substantive claim for relief
because she did not have a property interest in continuing employment.

{12} The Department also attempts to squeeze in an argument that a probationary state
employee cannot state a claim under the Human Rights Act because the Department’s
termination action is based on a “statutory prohibition” created by the Personnel Act and
excluded from the definition of discriminatory practice under the Human Rights Act. See
§ 28-1-7(A) (stating that it is an unlawful discriminatory practice for an employer “to
discharge . . . or to discriminate . . . against any person otherwise qualified because of race,
age, religion, color, [or] national origin . . .” unless the employer’s action is “based on a bona
fide occupational qualification or other statutory prohibition”). The statutory prohibition,
according to the Department, is the composite of provisions in the Personnel Act that
distinguish an employee from a probationary employee, that permit a probationary employee
to be discharged without cause, and that forbid the discharged probationary employee any
appeal right. Sections 10-9-3(I), (J); 1.7.2.8 NMAC (7/15/2005); 1.7.11.11 NMAC. Thus,
the Department argues that to allow a probationary employee to bring a cause of action under
the Human Rights Act is contrary to the Personnel Act’s limitation on a probationary
employee’s right to make a claim for wrongful discharge. According to the Department,
allowing a probationer to bring a cause of action under the Human Rights Act is contrary to
Section 28-1-7(A)’s exclusion of “other statutory prohibition” from the definition of
“unlawful discriminatory practices[.]”




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{13} We reject the Department’s arguments. The Department fails to present any
authority that persuades us that a jurisdictional bar exists under the circumstances here. The
case before us is not one solely under the Personnel Act. We are not addressing a claim
under § 1983, and § 1983 is not at issue. Neither constitutional violations nor liberty or
property interests are at issue. Plaintiff’s claim is under the Human Rights Act. No
authority on which the Department relies persuades us that a person in Plaintiff’s position
must prove a property interest in continuing employment as a jurisdictional prerequisite to
assertion of a claim under the Human Rights Act for discrimination and retaliation based on
sex or age. Nor are we presented with any authority to support the district court’s
determination that Plaintiff is barred from seeking relief under the Human Rights Act simply
because the Personnel Act permits discharge of a probationary state employee without cause.

{14} The Human Rights Act, like its federal analog, Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2 (1991), was “designed to encourage employees to report when
they or others are being subjected to illegal workplace discrimination[.]” Mitchell v. Zia
Park, LLC, No. CV 10-1206 WPL/GBW, 2012 WL 310824, at *1, *9, __ F. Supp. 2d__
(D.N.M. Feb. 1, 2012). Owing to the similarities between the Human Rights Act and Title
VII, our Supreme Court has noted that our analysis of claims under the Human Rights Act
is guided by the federal courts’ interpretation of unlawful discrimination under Title VII.
Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 39, 130 N.M. 25, 16 P.3d
1084.

{15} We are guided by two federal cases in which the plaintiffs, who lacked a property
interest in employment, filed complaints alleging violations of both § 1983 and Title VII.
See Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986); Henderson v. City of New
York, 818 F. Supp. 2d 573 (E.D.N.Y. July 20, 2011). In each case, the respective courts
determined that the plaintiff’s § 1983 claim could not stand because the plaintiffs had no
property interest in the employment, however, in each case, the court permitted the
plaintiff’s Title VII claim. See Walters, 803 F.2d at 1140, 1142, 1144-45 (stating that
because the plaintiff did not have a property interest in the employment that he sought to
obtain, the district court properly granted the defendants’ motion for directed verdict on the
plaintiff’s § 1983 claim and also holding that the district court properly found that the
plaintiff prevailed on his Title VII discrimination and retaliation claims); Henderson, 818
F. Supp. 2d at 575-78, 583-84 (explaining that the plaintiff, who was a probationary
employee when he retired (which he claimed was a “constructive discharge”), unlike a
permanent employee he had no property interest in his position and therefore could not
establish a § 1983 claim, and further, denying the defendant’s motion for summary judgment
on the plaintiff’s Title VII retaliation claim, as well as the claims under the state’s and city’s
human rights acts).

{16} Furthermore, we cannot give the Personnel Act an enforcement status superior to the
exceptionally important public policy against discrimination set out in the Human Rights
Act. We will not lend credence to a view that a probationary state employee can be
discharged based on the employee’s sex or age. See Bottijliso v. Hutchison Fruit Co., 96

                                                5
N.M. 789, 792, 635 P.3d 992, 995 (Ct. App. 1981) (stating that under the doctrine of abusive
discharge, “implied by operation of law as an additional condition of the contract similar to
the restrictions imposed by the Equal Employment Opportunity provisions of the Civil
Rights Act of 1964 . . . the interest of the employer in the exercise of his unfettered right to
terminate the employee under a contract at will is balanced against the interest of the
community in upholding its laws in public policy”), overruled on other grounds by Boudar
v. E.G. & G., Inc., 105 N.M. 151, 730 P.2d 454 (1986); see also Been v. N.M. Dep’t of Info.
Tech., 815 F. Supp. 2d 1222, 1236 n.5 (D.N.M. 2011) (stating that, in the face of the
defendant’s argument that the plaintiff was a probationer under the Personnel Act,
“[a]lthough an employee at will may be terminated without cause, she is still entitled to the
protections of Title VII and the [Human Rights Act]”); Vigil v. Arzola, 102 N.M. 682, 688-
89, 699 P.2d 613, 619-20 (Ct. App. 1983) (stating that “a cause of action should exist when
the discharge of an employee contravenes some clear mandate of public policy” and that the
Human Rights Act falls within the category of “clearly mandated public policy” (internal
quotation marks and citation omitted)), overruled on other grounds by Chavez v. Manville
Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989). The Human Rights Act forbids an
employer to discriminate against “any person otherwise qualified[.]” Section 28-1-7(A).

{17} We hold that the district court erred in concluding that, owing to Plaintiff’s status as
a probationary employee under the Personnel Act, her claim under the Human Rights Act
could not stand because the Department “was permitted to terminate [her] employment
without cause[.]” On remand, the district court shall determine whether Plaintiff can
establish a prima facie case of discrimination and retaliation pursuant to the Human Rights
Act and proceed under the analytical framework as discussed in Garcia-Montoya, 2001-
NMSC-003, ¶ 39, and Juneau v. Intel Corp., 2006-NMSC-002, ¶¶ 9, 23, 139 N.M. 12, 127
P.3d 548, to resolve the claims on their merit.

{18}    IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for Rodriguez v. NM Dept. of Workforce Solutions, Docket No. 30,726

CP             CIVIL PROCEDURE
CP-SJ          Summary Judgment


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CR      CIVIL RIGHTS
CR-AD   Age Discrimination
CR-ED   Employment Discrimination
CR-HA   Human Rights Act
CR-SX   Sex Discrimination

EL      EMPLOYMENT LAW
EL-DS   Discrimination
EL-EA   Employment at Will
EL-TE   Termination of Employment

GV      GOVERNMENT
GV-PE   Public Employees




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