Delopez v. Bernalillo Public Schools et al
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 56 Defendants' Motion for and Memorandum in Support of Summary Judgment and Plaintiff's claims are dismissed with prejudice. (baw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 19-735 JCH-KK
BERNALILLO PUBLIC SCHOOLS,
DEMETRIA NAVARRETTE, in her individual
capacity, KEITH COWAN, in his individual
capacity, TAMIE PARGAS, in her individual
capacity, and ERIC JAMES, in her individual
MEMORANDUM OPINION AND ORDER
On November 16, 2020, Defendants Bernalillo Public Schools, Demetria Navarrette, Keith
Cowan, Tamie Pargas, and Eric James (“Defendants”) filed a Motion for and Memorandum in
Support of Summary Judgment (ECF No. 56). Defendants previously filed a Motion and
Memorandum for Partial Judgment on the Pleadings (ECF No. 18), and in a Memorandum Opinion
and Order thereon, this Court reserved ruling on whether to dismiss Counts IV and VIII until it
reviewed the evidence submitted in the summary judgment briefs. (See Mem. Op. and Order 1-2,
17, ECF No. 72.) As permitted by the Court’s order, the parties submitted additional briefs and
evidence concerning the issues of exhaustion of administrative remedies for claims brought under
the New Mexico Human Rights Act (“NMHRA”). (See Defs.’ Br., ECF No. 75; Pl.’s Supp. Br.,
ECF No. 76.) The Court, having considered the motion, briefs, supplemental briefs, evidence, and
applicable law, concludes that Defendants’ motion for summary judgment should be granted as to
all claims and the complaint should be dismissed in its entirety.
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The record, viewed in the light most favorable to Plaintiff and drawing all inferences in her
favor, shows the following.
Plaintiff had been employed with Defendant Bernalillo Public Schools (“BPS”) since 2008.
(Defs.’ Undisputed Material Fact (“UF”) ¶ 1, ECF No. 56.)1 For the 2017-18 school year, Plaintiff
had an employment contract as an art teacher with BPS at Carroll Elementary School (“Carroll”).
(Id.) Principal Demetria Navarrette (“Navarrette”) was Plaintiff’s supervisor for her final two years
at Carroll. (Defs.’ UF ¶ 2.) Plaintiff described her first year working with Navarrette as “okay.”
(See DeLopez Dep. 49:14-23, ECF No. 56-2.) At the end of the 2016-17 school year, Plaintiff
made a poster about a parent meeting, which came across as critical of Navarrette’s method of
communication about the meeting, and since that time, Navarrette began to put words in Plaintiff’s
mouth “and telling [her] to be quiet, even though [she] didn’t say those words.” (See DeLopez
Dep. 50:2-52:4, ECF No. 56-2.)
At the beginning of the 2017-18 school year, Navarrette made a “grimace” face, which was
not nice, behind DeLopez’s back to Navarrette’s secretary, causing her secretary to laugh. (See id.
at 53:16-56:21.) During an ice breaker activity in a staff training the first or second day of school,
Lori Spina (“Spina”) excluded DeLopez from the personality group in which DeLopez thought
she belonged, and Navarrette thought it was fine. (See id. at 54:3-6, 56:10-21; Pl.’s Ex. 3, ECF No.
61-1 at 9 of 36; Pl.’s Ex. 15 at 16:6-7, ECF No. 61-2 at 20 of 38.) In a staff meeting at the beginning
of the year, Navarrette also made a snide comment in response to a question from DeLopez, “Well,
you have all the money. We don’t.” (DeLopez Dep. 59:6-16, ECF No. 56-2.)
The Court will refer to facts as Undisputed Facts (“UF”) for those facts that are undisputed by Plaintiff or which
Plaintiff disputed but failed to contradict with admissible evidence.
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On or about August 18, 2017, DeLopez left Carroll to go to Bernalillo Elementary School.
(See id. at 60:18-61:25; Pl.’s Ex. 2, ECF No. 61-1 at 8 of 36.) Because Navarrette was busy with
parents, DeLopez told the office staff she was leaving, signed out on a clip board, and signed in
and out at the other school. (See DeLopez Dep. 60:18-61:25, ECF No. 56-2; Pl.’s Ex. 2, ECF No.
61-1 at 8 of 36.) She assumed Navarrette would let her go to the other school despite DeLopez
having bus duty. (Pl.’s Ex. 2, ECF No. 61-1 at 8 of 36.) Navarrette wrote a disciplinary warning
for this incident, asserting that DeLopez failed to notify an administrator before she left the school,
when DeLopez had been assigned to bus duty Carroll that afternoon. (See id.; DeLopez Dep. 60:1865:13, ECF No. 56-2.) After receiving a warning for leaving early without notifying the
administration, DeLopez emailed the Superintendent to request a meeting with him and to
complain that she was being bullied. (Defs.’ UF ¶ 7, ECF No. 56.) Plaintiff had issues with other
first-year principals too, saying that all first-year principals harass her. (See DeLopez Dep. 32:2433:9, ECF No. 56-2.)
On September 7, 2017, DeLopez went to the office and Jennifer Trujillo (“Trujillo”), the
union president, and Spina, a union representative, blocked the door to the office. (See DeLopez
Dep. 74:6-77:13, ECF No. 61-1.) Trujillo was upset because DeLopez emailed the vice-president
of the union to get a copy of the collective bargaining agreement (“CBA”), and DeLopez, who was
unhappy with union leadership, asked when there would be a vote for the union president. (See
id.) Navarrette wrote a note regarding the incident, but DeLopez was not otherwise disciplined
regarding it. (See id.; DeLopez Dep. 78:20-80:19, ECF No. 56-2.) The two union staff members
were not disciplined, even though they were being loud. (See DeLopez Dep. 74:6-77:13, ECF No.
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On December 1, 2017, during DeLopez’s duty assignment, she called via a walkie-talkie
to second grade teachers, politely telling them to come and pick up their students. (See DeLopez
Dep. 155:4-17, ECF No. 56-2.) Even though the teachers were two minutes late, Navarrette yelled
at DeLopez, “They still have a minute.” (Id.)
On December 5, 2017, Michelle Padilla (“Padilla”), BPS’s director of curriculum and
instruction, emailed DeLopez and other art teachers a document that gave a breakdown by school
enrollment of the percentages of a Fine Arts Supply Material funds grant that would go to each
school. (See DeLopez Dep. 84:9-12, 92:1-93:18, ECF No. 56-2; Defs.’ Ex. E, ECF No. 56-5.)
According to the email, teachers had a deadline of January 31, 2018, to turn in orders. (See
DeLopez Dep. 93:14-18, ECF No. 56-2; Defs.’ Ex. E, ECF No. 56-5.)
On December 15, 2017, Navarrette issued DeLopez a Formal Letter of Reprimand
regarding a number of incidents. (See DeLopez Dep. 82:13-83:1, ECF No. 56-2; Ex. D, ECF No.
56-4). The first allegation occurred on December 5, 2017, in which DeLopez allegedly spoke to
an educational assistant in loud and harsh tones, stating, “I’m talking to you.” (DeLopez Dep. 83:225, ECF No. 56-2; Ex. D, ECF No. 56-4.) According to the second allegation, DeLopez, without
an appointment, walked into a meeting between Navarette and Padilla, and DeLopez demanded
information from Padilla in a confrontational tone, even though they had already emailed the
information to her. (DeLopez Dep. 84:5-85:10, ECF No. 56-2; Ex. D, ECF No. 56-4.) Third, the
letter said that Celia Nielsen from the district office reported on December 6, 2017, that DeLopez
was very rude and unprofessional to her on the phone in requesting information. (DeLopez Dep.
85:11-86:5, ECF No. 56-2; Nielsen Dep. 6:15-7:11, ECF No. 61-1 at 24 of 36; Ex. D, ECF No.
56-4.) Finally, on December 11, 2017, a parent called to report that DeLopez peeled a scab off her
son’s arm during her art class, and the wound continued to bleed. (See DeLopez Dep. 86:6-88:6,
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ECF No. 56-2; Ex. D, ECF No. 56-4.) The parent was very upset that DeLopez touched her son in
this manner (See Ex. D, ECF No. 56-4.) The letter of reprimand warned DeLopez that she was not
to touch students in any manner, according to state and school board policy, and that if that type
of behavior occurs again, it “could lead to further discipline up to and including
discharge/termination.” (Id.; see also DeLopez Dep. 88:7-16, ECF No. 56-2.)
DeLopez wrote a rebuttal to the letter of reprimand on December 21, 2017. (Ex. 5, ECF
No. 61-1 at 20 of 36.) DeLopez disputed that she spoke to the educational assistant in harsh tones,
that she spoke inappropriately to Padilla, and that she was rude and confrontational to Nielsen.
(See DeLopez Dep. 83:6-13, 84:13-86:5, ECF No. 56-2.) DeLopez asked Padilla questions about
the grant they recently received, and because Padilla was interrupting DeLopez, DeLopez asked
her a couple of times if she could talk. (See id. at 84:13-85:10.) As for the incident with Nielsen,
DeLopez said that she had trouble understanding her, so she was a little frustrated, and they started
talking at the same time. (See id. at 85:11-86:5.) Regarding the scab event, DeLopez admitted that
she pulled the scab off a second-grade student, but she thought the boy had glue with glitter sticking
off his arm, so she took it off without realizing at the time that it was a scab. (Id. at 86:6-88:6.)
The wound bled profusely. (Id.) DeLopez put on two band-aids and then sent the student to the
nurse because it was bleeding so much. (Id.)
On or about January 18, 2018, Tamie Pargas (“Pargas”), BPS’s Director of Human
Resources, added a letter to DeLopez’s personnel file, which corrected some errors in the
December 15, 2017 letter. (Ex. 4, ECF No. 61-1.) The corrections clarified that four, not three,
issues were listed in the letter; gave the correct reference to the Board policy forbidding
inappropriate contact with any student; and removed “Corrective Action #1.” (Id.) The first
corrective action referred to treating teachers appropriately, but the allegations involved staff, not
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teachers, so Corrective Action #2, requiring professionalism with all district staff, covered the
corrective action. (Compare id., with Ex. D, ECF No. 56-4.)
On January 29, 2018, DeLopez emailed Padilla and asked for a two-week extension to
order art supplies. (DeLopez Dep. 95:13-97:7, ECF No. 56-2; Ex. F, ECF No. 56-6.) Padilla gave
her a one-week extension, but DeLopez asked for additional time beyond that because she was
very stressed out about the reprimand. (See DeLopez Dep. 95:13-97:7, ECF No. 56-2.) DeLopez
placed her order on February 11th, but there was an issue with the vendors, so the district had
problems with her order. (Id. 98:25-100:3.) On February 23, 2018, Padilla emailed DeLopez
informing her that she needed to spend the remaining balance of her Fine Arts supply and materials
funds by February 27, 2018, or the funds would no longer be available. (See id.; Ex. H, ECF No.
On or about February 20 or 23, 2018, DeLopez had a meeting with Pargas because
DeLopez wanted to know why she could not make vendors anymore and what the time constraint
was. (See DeLopez Dep. 107:6-108:6, ECF No. 56-2.) A few days after this meeting, Pargas and
Superintendent Cowan came into DeLopez’s room to ask her about a rumor that she went to the
Public Education Department (“PED”) to complain. (See id. at 108:7-24; Ex. 3, ECF No. 61-1 at
13 of 36.) When DeLopez asked where the rumor came from, Cowan pointed to Pargas. (DeLopez
Dep. at 108:7-20, ECF No. 56-2.) DeLopez, however, denied that she called the PED to report
anything or complain about anything, because she had not. (See id. at 108:7-24, 111:10-17.)
On or about March 23, 2018, DeLopez met with Navarrette to discuss her evaluation. (Id.
at 113:25-114:4.) DeLopez was going to rebut her evaluation, but Navarrette had misinformed her
that she could not do that anymore. (Id. at 117:16-23.) DeLopez later learned that within ten days
of her evaluation review, she could have made a written rebuttal concerning the grades on her
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evaluation. (See id.; Ex. 8 & 9, ECF No. 61-1 at 32-34 of 36.) Under the CBA, an employee has
20 days to submit a grievance after the incident occurred. (See Ex. J, ECF No. 56-10.) Employees
may submit a written rebuttal in disagreement with their performance evaluations, and the rebuttal
will be made part of the evaluation. (See Ex. 9, ECF No. 61-1 at 34 of 36.)
On April 16, 2018, Delopez received a signed “Appointment Memorandum” from
Superintendent Cowan that stated: “This is official confirmation that I have approved your
appointment with the Bernalillo Public Schools for the 2018-2019 contract year….Return a signed
copy of this memorandum to the office of Human Resources indicating your acceptance or
rejection of employment within ten (10) days from receipt.” (Ex. 18, ECF No. 61-2 at 34 of 38.)
On April 25, 2018, DeLopez signed the “Appointment Memorandum” accepting the appointment
for the 2018-19 contract year. (Id.)
On April 27, 2018, DeLopez, having previously had two years of highly qualified
certification, filed a grievance through her union because of her lower grades. (See DeLopez Dep.
112:8-113:15, ECF No. 56-2; Ex. 10, ECF No. 61-1 at 35 of 36.) She complained that she
experienced a pattern of unprofessional behavior by Navarrette and the HR Director, including an
angry outburst by Navarrette. (See Ex. 10, ECF No. 61-1 at 35 of 36.) DeLopez also asserted that
her last evaluation was biased against her due to allegations against her of using an unprofessional
tone and an untrue rumor that she complained to the State about BPS. (See id.) DeLopez also
contended that Navarrette based her observation evaluation strictly on literacy standards that are
not appropriate for an art class, and that she had not been provided professional development and
in-service training programs. (See id.)
On May 1, 2018, DeLopez met with Navarrette, Eric James (“James”), and Beverly
Rankin, a union representative at Carroll, concerning her grievance, as the provisions for a
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complaint and grievance are similar (See DeLopez Dep. 112:21-118:19, ECF No. 56-2; James
Dep. 11:4-16, ECF No. 56-11.) James agreed that they should provide her more professional
development opportunities. (See DeLopez Dep. 115:15-116:5, ECF No. 56-2.) He also informed
her that her concerns regarding the evaluation were outside of the CBA and not subject to the
grievance process. (Id. at 116:15-19.)
On May 7, 2018, an autistic boy in one of DeLopez’s first-grade art classes started dashing
under tables erratically and then another student told her that the boy stabbed the student’s ankle.
(See DeLopez Dep. 118:20-121:10, ECF No. 56-2.) She attempted to calm the autistic student
down verbally, but could not, and the boy retreated farther under the table. (Id. at 120:12-15.)
DeLopez called the boy’s teacher and told her that he was running around erratically, and that she
needed help, but the teacher was leaving the building and said to call Ms. Vasquez, the special
education teacher assigned to the student. (Id. at 120:16-20.) She then called Justice Vasquez
(“Vasquez”) and told her the boy was acting crazy, but Vasquez said she could not come because
she was testing. (Id. at 120:16-124:22; Navarrette Dep. 28:15-16, ECF No. 61-2 at 3 of 38.)
DeLopez did not call the main office or use her walkie-talkie. (See DeLopez Dep. 125:13-22, ECF
DeLopez then saw a female student was sitting behind the boy, embracing him from the
back, which had calmed him down. (Id. at 120:22-121:8.) DeLopez was concerned that if the
student let him go, he would start his erratic behavior again, but she also knew a student is not
supposed to restrain another child. (Id. at 137:2-23.) So, DeLopez took the boy’s legs, and she and
the female student carried him out of the classroom to the special education teacher’s classroom.
(See id. at 122:5-124:16.) Vasquez, however, was not testing any students when DeLopez arrived
at her classroom. (See id. at 124:12-16.) DeLopez returned to the art classroom in about 45 seconds.
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(Id. at 122:10-14.) She left over twenty students alone in the art classroom during those 45 seconds.
(See id. at 122:10-124:25.)
DeLopez had not previously received Crisis Intervention Prevention (“CPI”) training. (See
id. at 138:8-25; Navarrette Dep. 26:1-3, ECF No. 61-2 at 3 of 38.) Not every teacher was CPI
trained, and the district prioritized who received the training. (See Navarette Dep. 26:1-27:27:6.)
According to the CPI training, the protocol for dealing with a classroom emergency was to call for
assistance, and when the other adult arrived, to take the students in the class outside the classroom
and leave them with another teacher, while the student who caused the emergency would stay in
the classroom. (See id. at 29:16-31:3.) This information was on the modification/accommodation
binders given to each teacher at the beginning of the year. (See id.)
The autistic student had an Individualized Education Plan (“IEP”) that provided for
accommodations for his learning environment, including allowing him to be removed from the
group as needed and adaptive modified seating as needed. (See DeLopez Dep. 193:21-194:15, ECF
No. 56-2; Ex. O, ECF No. 56-15.) Vasquez gave DeLopez a pack of new IEPs, including the
autistic student’s IEP, but DeLopez did not find the time to read them. (See DeLopez Dep. 193:21194:15, ECF No. 56-2; Ex. O, ECF No. 56-15.)
On May 8, 2018, James placed DeLopez on administrative leave for the May 7, 2018
incident. (See DeLopez Dep. 130:3-22, ECF No. 56-2; Ex. P, ECF No. 56-16.) On May 10, 2018,
Navarrette delivered to DeLopez a letter, stating that for the 2018-19 school year, she would work
with DeLopez on including time for her to attend a monthly professional training; including time
for her to attend District Professional Development; and implementing observations and
continuous post conferences regarding all teacher evaluation domains. (Ex. 11, ECF No. 61-2 at 1
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of 38.) Navarrette believed that the letter resolved DeLopez’s grievance. (See Navarette Dep.
107:16-23, ECF No. 61-2 at 5 of 38.)
That same day, at 10:00 a.m., a predetermination due process meeting was held during
which Plaintiff had the opportunity to explain the incident surrounding the removal of the student
from her class. (Defs.’ UF ¶ 30, ECF No. 56.) A second meeting occurred later that same afternoon
with DeLopez, Navarrette, Spina, Olivia Perez, and James in attendance. (See DeLopez Dep.
131:2-134:21, ECF No. 56-2; Ex. R at 29:2-16, ECF No. 56-18.) At the meeting, Navarrette
presented DeLopez with a Letter of Reprimand for forcefully restraining the student and informed
her she would be on paid administrative leave until further notice. (See DeLopez Dep. 134:16135:19, ECF No. 56-2; Defs.’ Ex. Q, ECF No. 56-17; Pl.’s Ex. 15 at 2:20-6:13, ECF No. 61-2 at
17 of 38.) As grounds supporting the May 10, 2018 letter of reprimand, Navarrette asserted that
DeLopez’s actions in restraining the student violated “NM Statute 32A-6A-10(A) which prohibits
restraints and also HB 75,” and that her leaving her class violated “Bernalillo Board Policy J-6450
Supervision of Students.” (See Ex. Q, ECF No. 56-17.) Navarrette informed her she could not be
on District property. (See id.; Ex. 15 at 6:8-13, ECF No. 61-2.) James explained to DeLopez that
her actions were outside the law by restraining the boy after he had deescalated. (See Ex. 15 at 8:713:2, ECF No. 61-2.)
James told DeLopez she was not being discharged, which meant immediate termination,
because they would let her finish out her contract on paid administrative leave, but they would not
renew her contract for the following year. (See id. 11:16-13:5.) James then explained that, if she
instead chose to resign, then this latter incident would not be in her record, and if asked, the District
would say DeLopez left on her own terms and it was a non-renewal of the contract. (See id. at
12:19-13:12.) James told her she could reapply for other positions in the District. (Id. at 29:1-30:9.)
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James explained that if she resigned, the District would take no action on her license, and when
she went to renew it, she could say she voluntarily resigned, and that she would be paid through
the summer because the resignation would be effective the last day of her contract. (See id. at
14:18-15:3, 20:9-18.) James told her that they had the option to discharge her immediately and
that their case was sound. (See id. at 12:19-13:12, 26:3-5, 29:1-16.) He said that he may have
trouble getting the superintendent to sign a verification form if the letter went into effect with the
non-renewal, but resignation was a way so “this can be saved, so that it doesn’t ruin your career
or create serious problems for you down the line or with your licensure.” (Id. at 19:10-20:18.) He
expressed his hope that she would “see the mercy in this letter saying you can still reapply for
other positions with the District.” (Id. at 29:4-6.) James explained to her his belief that justice
would say to fire her and file a complaint with the PED and go after her license. (See id. at 30:1519.) Perez also discussed her two options: immediate firing or resign with full pay until the end of
the year with the opportunity to renew her license and without the May 7, 2018 incident going into
her file. (See id. at 31:21-32:15, 39:8-41:4, 48:5-50:1.)
DeLopez asked for time to think about her options, but James told her the offer was gone
when the meeting was over, and Perez confirmed she had to decide that day. (Id. at 39:8-41:4.)
Perez said, “If you don’t resign[,] they’re going to fire you. You don’t have a choice.” (Id. at 40:23.) Afterwards, DeLopez said she could not think or read straight anymore and did not know if she
could trust them, and Perez and Spina responded that she could reapply to art openings in the
District. (See id. at 43:14-44:13.) When DeLopez expressed that she felt pressured, James
responded that if she felt pressure, not to do anything, and that he would deliver the letter to her.
(See id. at 48:5-49:15.) Perez added that would mean, “You’re terminated.” (Id. at 49:16.) James
indicated he was trying to help her out by giving her the option to resign so it would not be on her
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record. (See id. at 49:18-50:1.) DeLopez signed a resignation letter, but added the phrase, “Under
pressure.” (Id. at 53:19-22.) James said he could not accept that and would serve the notification,
but DeLopez responded, “No, let’s do the resignation.” (Id. at 53:19-54:10.) DeLopez signed a
resignation letter, and James said that the official Letter of Reprimand and the consequences would
not go into effect because she resigned, but that the official record of the meeting would exist. (See
id. at 54:10-56:14.)
Her signed resignation letter stated: “I, Gwendolyn DeLopez, hereby resign from Bernalillo
Public Schools effective June 30, 2018. – End of my 2017-2018 contract.” (Ex. S, ECF No. 5619.) Since she resigned, she was paid from the day she resigned until the end of her employment
contract. (Defs.’ UF ¶ 36, ECF No. 56.)
Following DeLopez’s resignation, Pargas and Superintendent Cowan, after learning that
no one had reported the incident to PED, decided to report the incident to the PED Ethics Division
based on their understanding of the state statute, N.M.S.A. § 22-10A-5F and G. (See Pargas Dep.
18:1-13, ECF No. 56-9; id. at 47:1-22, ECF No. 61-1 at 28 of 36.)2 On June 18, 2018, Pargas
presented a Licensure Complaint Form to PED on behalf of BPS that relied on a violation of N.M.
Plaintiff asserts that Pargas and Cowan were mistaken in their beliefs that they had a duty to report her to PED. The
statute in effect at that time provided that a superintendent shall report to the department “any known conviction of a
felony or misdemeanor involving moral turpitude of a licensed school employee that results in any type of action
against the licensed school employee.” N.M. Stat. Ann. § 22-10A-5(E) (1978, as amended in 2007) (subsequent
amendments moved the contents of this subsection to subsection (G)). Subsection (F) provided that the superintendent
must “investigate all allegations of ethical misconduct about any licensed school employee who resigns, is being
discharged or terminated or otherwise leaves employment after an allegation has been made.” Id. § 22-10A-5(F) (1978,
as amended in 2007); 2007 New Mexico Laws Ch. 263 (S.B. 210). If the investigation resulted in a finding of ethical
misconduct by the school employee, the superintendent had to report the identity of the licensed school employee and
attendant circumstances of the ethical misconduct on a standardized form to the department and the licensed school
employee within thirty days following the separation from employment. Id. The statute further provided that no
agreement between a departing employee and the superintendent could eliminate the responsibility of investigating
and reporting the alleged ethical misconduct to the department and any such agreement to the contrary was void. Id.
In 2018, the statute defined “ethical misconduct” as “unacceptable behavior or conduct engaged in by a licensed school
employee and includes inappropriate touching, sexual harassment, discrimination and behavior intended to induce a
child into engaging in illegal, immoral or other prohibited behavior.” Id. § 22-10A-5(A) (1978, as amended in 2007)
(emphasis added). Consequently, at the time, the statute defined “ethical misconduct” to include more than
inappropriate touching or sexual behavior – it broadly covered “unacceptable behavior or conduct.” See id.
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Stat. Ann. § 32A-6A-10 (1978),3 HB 75, which generally prohibits the use of restraints, and BPS
Board Policy J-6450, which provides that students should not be left unattended without making
a reasonable effort to obtain a school employee to supervise them. (See Ex. T, ECF No. 56-20; Ex.
13 & 14, ECF No. 61-2 at 6-9 of 38.)4 The allegations set forth in the complaint to PED were those
for the May 7, 2018 incident, but it noted the prior letter of reprimand alleging four different
concerns, including the incident in which she pulled off a student’s scab. (See Ex. T, ECF No. 5620.) The Licensure Complaint Form filled out by Pargas expressly states on the form to fill it out
for “NMAC 184.108.40.206(B)&(C) & 220.127.116.11(B) only.” (Ex. 13, ECF No. 61-2 at 6 of 38.)5 Following
an investigation, PED did not prosecute or take action against DeLopez’s license as a result of the
complaint. (See Ex. 14, ECF No. 61-2 at 9-15 of 38.)
At the time, 37 of 52 staff members at Carroll were over 40 years old and the average age
of staff members working at Carroll was 46 years of age. (Aff. of Eric W. James ¶ 19, ECF No.
56-21.)6 The art teacher hired to replace DeLopez was 29 years old at the time of hire. (Pl.’s UF ¶
Section 6a of Chapter 32A is the “Children’s Mental Health and Developmental Disabilities Act.” N.M. Stat. Ann.
§ 32A-6A-1 (1978). The purpose of the Act is to, among other things, “provide children with access to appropriate
assessments, services and treatment” and “to a continuum of services to address their habilitation and treatment needs.”
Id. § 32A-6A-2(A) & (B). The term “habilitation” in the Act “includes programs of formal, structured education and
treatment and rehabilitation services.” Id. § 32A-6A-4(K) (emphasis added). Section 32A-6A-10(A) provides: “When
providing any treatment or habilitation, physical restraint and seclusion shall not be used unless an emergency situation
arises in which it is necessary to protect a child or another from imminent, serious physical harm or unless another
less intrusive, nonphysical intervention has failed or been determined ineffective.” Id. § 32A-6A-10(A).
Plaintiff disputes that the statute required Pargas to file a complaint against DeLopez under these circumstances.
Notably, the reporting statute in effect at the time was broadly written to include “unacceptable behavior or conduct.”
N.M. Stat. Ann. § 22-10A-5(A) (1978, as amended in 2007) (emphasis added). See also 2007 New Mexico Laws Ch.
263 (S.B. 210). Plaintiff has thus not demonstrated that Pargas’s understanding of the statute was incorrect or
Plaintiff asserts that these code provisions are directed towards sexually inappropriate touching. While that type of
misconduct falls within the scope of NMAC 18.104.22.168(B)&(C), the provisions are much broader and encompass a wide
range of employee conduct. For example, NMAC 22.214.171.124(C)(23)(a) prohibits unprofessional conduct to include
“restraining a student for no valid reason.” NMAC 126.96.36.199(B) lists numerous grounds for disciplinary action against
a license, to broadly include “a willful violation of any department regulation prescribing standards of conduct for
licensed school personnel at a time when the licensee was subject to such requirement.” NMAC 188.8.131.52(B)(4).
Because of the broad language of the administrative code provisions, the Court disagrees with Plaintiff that Defendants
had no legal or factual basis to believe that filing a complaint with PED was appropriate under the circumstances.
Plaintiff argues that Defendants failed to provide evidence that verifies that James’ statement regarding ages is
accurate and supported. (See Pl.’s Resp. 16, ECF No. 61.) James, however, is the Director of Human Resources for
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5, ECF No. 61.) DeLopez was 55 years old at the time her employment with BPS ended. (Id.)
Spina admitted that students have to be picked up at times. (Ex. 20 at 12:21-13:3, ECF No. 61-2
at 38 of 38.) Spina, however, had been CPI-trained to learn how and when to restrain a child,
although on May 10, 2018, her training had lapsed. (See Spina Dep. 16:7-19, ECF No. 69-5.)
On June 19, 2018, Delopez filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging that she was forced to resign her employment with BPS because
of national origin and age discrimination and retaliation. (See Charge of Discrimination, ECF No.
75-2.) On May 8, 2019, the EEOC issued its Notice of Right to Sue. (See Notice, ECF No. 75-4.)
DeLopez filed this lawsuit on August 12, 2019. (Compl., ECF No. 1). Plaintiff did not receive an
Order of Non-Determination from the New Mexico Human Rights Bureau until December 5, 2019.
(Defs.’ Ex. G, ECF No. 75-7.)
DeLopez asserts numerous claims in her complaint: Count I - Age Discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”), Count II - Retaliation in
violation of the ADEA, Count III - Hostile Work Environment in violation of the ADEA, Count
IV - Age Discrimination in violation the New Mexico Human Rights Act (“NMHRA”), Count V
- Retaliation in violation of the NMHRA, Count VI - Hostile Work Environment in violation of
the NMHRA, Count VII - Constructive Discharge in violation of the ADEA, Count VIII Constructive Discharge in violation of the NMHRA, Count IX - Violations of the New Mexico
Whistleblower Protection Act (“NMWPA”), and Count X - Breach of Express Contract. (See id.
at 9-20.) Defendants move for summary judgment on all Plaintiff’s claims.
BPS. The Court finds no reason to disregard this factual assertion in James’ affidavit concerning ages of employees,
which Plaintiff failed to refute with contrary evidence.
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On a motion for summary judgment, the moving party initially bears the burden of showing
that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033,
1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party must show
that genuine issues remain for trial. Id. The nonmoving party must go beyond the pleadings and
by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). A court must construe all facts and reasonable inferences in the light most
favorable to the nonmoving party. Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co., 52
F.3d 1522, 1527 (10th Cir. 1995). Only disputes of facts that might affect the outcome of the case
will properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. See id. at 248.
Age Discrimination under the ADEA (Count I) and NMHRA (Count IV)
Under the ADEA it is illegal for an employer to discharge or otherwise discriminate against
any individual who is at least 40 years of age “because of such individual’s age.” 29 U.S.C. §
623(a)(1) and § 631(a). The Supreme Court interpreted “because of” to mean that age must be “the
‘reason’ that the employer decided to act.” Gross v. FBL Financial Services, Inc., 557 U.S. 167,
176 (2009). An employee claiming disparate treatment under the ADEA may survive summary
judgment by providing circumstantial rather than direct evidence of discrimination as set forth in
McDonnell Douglas. See Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1278 (10th Cir.
2010) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).
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The NMHRA makes it unlawful for an employer “to discharge … or to discriminate in
matters of compensation, terms, conditions or privileges of employment against any person
otherwise qualified because of … age.” N.M. Stat. Ann. § 28-1-7(A). New Mexico courts
frequently look to federal law for guidance when analyzing NMHRA claims. See, e.g., Ulibarri v.
State of New Mexico Corrections Academy, 2006-NMSC-009, ¶ 11, 131 P.3d 43; Smith v. FDC
Corp., 109 N.M. 514, 517-18, 787 P.2d 433, 436-37 (N.M. 1990) (following guidance of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when examining race and age
discrimination claims under NMHRA). New Mexico courts have used the McDonnell-Douglas
test as a framework to use in analyzing age discrimination claims. Cates v. Regents of New Mexico
Institute of Min. & Technology, 1998-NMSC-002, ¶¶ 15-16, 124 N.M. 633.
To establish a prima facie case for age discrimination, the plaintiff must prove that she was
(1) within the protected class of individuals 40 or older, (2) performing satisfactory work; (3)
terminated from employment; and (4) replaced by a younger person. Adamson v. Multi Cmty.
Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). See also Cates, 1998-NMSC-002,
¶¶ 17-18 (setting forth same factors to establish prima facie case of age discrimination under
NMHRA). This burden is “not onerous.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005).
If a plaintiff establishes a prima facie case, the burden shifts to the employer to show a legitimate
non-discriminatory reason for its action. Id.; Cates, 1998-NMSC-002, ¶ 16. If the defendant meets
this burden, summary judgment is warranted unless the employee can show there is a genuine issue
of material fact as to whether the employer’s proffered reasons for dismissal were pretext for age
discrimination. See Plotke, 405 F.3d at 1099; Cates, 1998-NMSC-002, ¶ 16.
A plaintiff may demonstrate pretext through evidence of weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered reasons that a reasonable jury could
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rationally find to be unworthy of credence. Crowe v. ADT Sec. Services, Inc., 649 F.3d 1189, 1196
(10th Cir. 2011). Pretext may also be shown through evidence that the proffered reason is false;
that the employer acted contrary to a policy or practice when making the adverse employment
decision; or that plaintiff was treated differently from similarly situated employees. Kendrick v.
Penske Transp. Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). The court does “not ask
whether the employer's reasons were wise, fair or correct; the relevant inquiry is whether the
employer honestly believed its reasons and acted in good faith upon them.” Riggs v. AirTran
Airways, Inc., 497 F.3d 1108, 1118-19 (10th Cir. 2007). Although the court must construe all facts
favorably to the plaintiff, in evaluating pretext arguments, the court must consider the facts as they
appeared to decision-makers. Bennett v. Windstream Communications, Inc., 792 F.3d 1261, 1268
(10th Cir. 2015). To survive summary judgment, the plaintiff must come forward with evidence
that would persuade a reasonable jury that the defendant’s proffered reason was merely pretext for
age discrimination. See Turner v. Public Serv. Co. of Colorado, 563 F.3d 1136, 1143–44 (10th
Cir. 2009). “Consequently, once a plaintiff presents evidence sufficient to create a genuine factual
dispute regarding the veracity of a defendant's nondiscriminatory reason, we presume the jury
could infer that the employer acted for a discriminatory reason and must deny summary judgment.”
Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1280 (10th Cir. 2010) (internal quotation
In this case, there is no direct evidence of age discrimination, so the Court will use the
McDonnell-Douglas framework. Defendants argue that Plaintiff cannot satisfy the second and
third requirements to establish a prima facie case of age discrimination. As for the second element,
Defendants argue that she was not performing satisfactory work based on her unprofessionalism
with other staff members and physical touching of two students. With respect to the third element,
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Defendants assert that Plaintiff resigned from her position. For purposes of this motion, the Court
will assume, without deciding, that Plaintiff was generally qualified for her position and that
Defendants constructively terminated her employment.7 Even assuming Plaintiff established a
prima facie case of discrimination, Defendants have shown a legitimate, non-discriminatory reason
for constructively terminating Plaintiff’s employment, and she failed to demonstrate there is a
genuine issue of material fact as to whether Defendants’ proffered reasons for dismissal were
pretext for age discrimination.
Turning first to Defendants’ reasons for the adverse action, Defendants contend that their
actions were justified based on Plaintiff speaking rudely to co-workers, improperly leaving school
early, peeling the scab off a student, and physically restraining and removing another student from
her classroom without need, particularly when the student had an IEP that she never took the time
to review. There is evidentiary support in the record for Defendants’ proffered reasons, which the
Court finds are legitimate, non-discriminatory reasons to support termination of employment.
Consequently, the burden shifts to Plaintiff to present evidence sufficient to create a genuine
factual dispute regarding the veracity of Defendants' nondiscriminatory reasons.
DeLopez argues the following evidence creates a dispute of fact as to whether the reason
for firing her was pretextual. First, she points to the failure of the PED to take action against her
license. While PED did not prosecute or take action against DeLopez’s license as a result of the
complaint, there are no investigative findings in the record or any other evidence pertaining to
There is a distinction between “terminate” and “discharge” under the School Personnel Act (“SPA”). The Act defines
“discharge” as “the act of severing the employment relationship with a licensed school employee prior to the expiration
of the current employment contract.” N.M. Stat. § 22-10A-2(A) (1978, as amended in 2007). To “terminate” an
employee is to sever the employment relationship with a school employee. Id. § 22-10A-2(E). Under the SPA, contract
employment has been terminated when the employee’s contract is not renewed. Brooks v. Board of Educ., Farmington
Mun. Schools, 617 F. App’x 887, 889-90 (10th Cir. June 16, 2015). Because Plaintiff was paid through the end of the
2017-18 contract, it appears that constructive “termination” applies here. But regardless of whether Plaintiff was
constructively discharged or constructively terminated, the result of the Court’s analysis herein is the same.
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PED’s standards or conclusions for its decision. The Court is not convinced that the lack of action
by PED regarding renewing her license creates a genuine dispute of fact as to whether Defendants’
reasons for not renewing her contract were lacking in support. Of critical significance here,
DeLopez admitted to peeling the scab off a student and for physically restraining and removing an
autistic student from her classroom and leaving her students unattended, albeit briefly.
Next, DeLopez contends that the disciplinary actions taken by BPS were letters of
reprimands, not discharge actions. The record shows, however, that DeLopez’s action in peeling
off a student’s scab and in her interactions with various BPS employees on three occasions resulted
in a letter of reprimand in which she was warned that she was not to touch students in any manner,
according to state and school board policy, and that if that type of behavior occurs again, it “could
lead to further discipline up to and including discharge/termination.” (DeLopez Dep. 88:7-16, ECF
No. 56-2; Defs.’ Ex. D, ECF No. 56-4.) DeLopez does not dispute that she physically restrained
an autistic student in May 2018 after that child had been calmed by another student.
Nevertheless, DeLopez argues that state statutes and HB 75 do not support taking
disciplinary action against her. H.B. 75 (codified in N.M. Stat. Ann. § 22-5-4.12), which was in
effect on June 16, 2017, provides: “A school may permit the use of restraint or seclusion techniques
on any student only if both of the following apply: (1) the student's behavior presents an imminent
danger of serious physical harm to the student or others; and (2) less restrictive interventions
appear insufficient to mitigate the imminent danger of serious physical harm.” N.M. Stat. Ann. §
22-5-4.12(A) (1978, as amended in 2017). See also 2017 New Mexico Laws Ch. 33 (H.B. 75).
Similarly, Section 32A-6A-10(A) provides: “When providing any treatment or habilitation,
physical restraint and seclusion shall not be used unless an emergency situation arises in which it
is necessary to protect a child or another from imminent, serious physical harm or unless another
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less intrusive, nonphysical intervention has failed or been determined ineffective.” N.M. Stat. Ann.
§ 32A-6A-10(A). Plaintiff argues that § 32A-6A-10 does not reference public schools, and thus,
does not serve as a basis for the PED complaint. By its stated terms, however, Section 6A of
Chapter 32A applies to structured education programs. N.M. Stat. Ann. § 32A-6A-4(K) (defining
“habilitation” to include formal, structured education programs). The Court is thus not convinced
that Defendants had no basis for relying on § 32A-6A-10 under the circumstances. Because
Plaintiff admitted to physically restraining the student after the female student had calmed him
down, Defendants had reason to believe that, at the time of the physical restraint, no emergency
was occurring and there was no imminent danger of serious physical harm to the student or others
that justified physical restraint and removal by DeLopez.8 Plaintiff therefore has not created a
genuine dispute regarding the veracity of Defendants’ stated reason for not renewing Plaintiff’s
contract based on violations of N.M. Stat. § 22-5-4.12 and N.M. Stat. § 32A-6A-10A.
Plaintiff also asserts that other teachers admitted to the same conduct she engaged in –
removing a student physically from the classroom, but without consequence. Plaintiff, however,
has not established this fact in the evidentiary record. Spina, DeLopez’s representative at the due
process hearing, admitted that teachers need to pick up students at times. (See Pl.’s Ex. 20 at 12:2113:3.) There are no specific facts about another incident, however, from which the Court or a jury
could determine whether the circumstances were similar enough to compare to Plaintiff’s conduct.
For example, Spina had been previously CPI-trained to learn how and when to restrain a child, and
it is not clear that she ever restrained a child who had already calmed down. (See Spina Dep. 16:719, ECF No. 69-5.) Furthermore, Plaintiff suggests that the fact that the teachers she contacted for
Navarrette’s letter also referenced “Bernalillo Board Policy J-6450,” but other than the letter itself that sets out the
language of the policy, the Court does not have the board policy in the record. Because this Court finds that Defendants
had reason to believe Plaintiff violated § 22-5-4.12 and § 32A-6A-10(A), this Court need not analyze this alternative
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help with the child were not disciplined for failing to help her, even though they were available, is
evidence of pretext. Plaintiff, however, has not established that they violated any rules or policies
on May 7, 2018, or that they were otherwise similarly situated to Plaintiff.
Plaintiff argues that Defendants have not shown that the accidental removal of a scab
violated any policy, rule, or law. Plaintiff admitted to pulling off the scab of a student, which bled
profusely. While she received a warning about touching students as a result of the scab incident,
she was dismissed from employment after the May 7, 2018 incident. Plaintiff admitted to touching
students in both incidents, one of which caused the student physical harm and the other of which
Defendants reasonably believed to violate state statutes. Nothing Plaintiff has submitted casts
doubt on the legitimate, non-discriminatory reason for the actions Defendants took when
Plaintiff has submitted no direct evidence of age discrimination, and Defendants had a nondiscriminatory reason for not renewing her contract and constructively terminating her
employment. This Court does not consider whether Defendants’ reasons were wise, fair or correct;
instead, it looks at whether the employer honestly believed its reasons and acted in good faith upon
them. The record supports that Defendants believed their reasons not to renew Plaintiff’s contract
and/or constructively terminating her employment, and they acted in good faith upon those
reasons. Plaintiff has failed to come forward with evidence that would persuade a reasonable jury
that Defendants’ proffered reasons were merely pretext for age discrimination. The Court will
therefore grant summary judgment for Defendants on Plaintiff’s age discrimination claims under
the ADEA (Count I) and NMHRA (Count IV).
Hostile Work Environment in violation of the ADEA (Count III) and NMHRA
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“For a hostile environment claim to survive a summary judgment motion, a plaintiff must
show that a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment.” Penry v. Federal Home
Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (internal quotations omitted). See also
Ulibarri, 2006-NMSC-009, ¶ 12 (explaining that, to establish a NMHRA hostile work
environment claim, the plaintiff must show her employer created an environment in which the
offensive conduct has the purpose or effect of unreasonably interfering with her work or was
intimidating, hostile, or offensive). The environment must be both objectively and subjectively
hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); Morris v. City of
Colorado Springs, 666 F.3d 654, 664 (10th Cir. 2012). A court should consider all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
Plaintiff asserts that Navarrette targeted Delopez with snide remarks, inappropriate ‘faces,’
and false accusations, followed by unjustified disciplinary actions, an unfair performance
evaluation, and a circulated rumor that she complained to PED. The combined conduct does not
objectively amount to a severe, pervasive hostile work environment. Regarding the disciplinary
actions, Plaintiff admitted to pulling a scab off a student, causing the wound to bleed, and to
physically restraining an autistic child to remove him from the classroom after he had calmed
down. That discipline resulted from these incidents does not show a workplace that was permeated
with discriminatory intimidation, ridicule, and insult. No jury examining the evidence in the light
most favorable to Plaintiff could conclude she was subject to severe or pervasive harassment.
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A plaintiff must also show that the hostile work environment stemmed from age animus.
See Holmes v. Regents of Univ. of Colorado, 176 F.3d 488, at *7 (10th Cir. May 7, 1999)
(unpublished) (explaining that plaintiff alleging hostile work environment under ADEA must show
that harassment stemmed from age-related animus); Smith, 109 N.M. at 517. There is no evidence
in the record of age-based animus or comments. No jury examining the evidence in the light most
favorable to Plaintiff could conclude the remarks, faces, accusations, discipline, or tone used with
Plaintiff was because of her age. Accordingly, Defendants are entitled to summary judgment on
Plaintiff’s hostile work environment claims in Counts III and VI.
Retaliation in violation of the ADEA (Count II) and NMHRA (Count V)
“The general approach to Title VII suits set out in McDonnell Douglas is also applicable
to retaliation claims.” Sorensen v. City of Aurora, 984 F.2d 349, 353 (10th Cir. 1993). “Title VII
makes it unlawful to retaliate against an employee for opposing practices made unlawful by the
statute.” Hansen v. SkyWest Airlines, 844 F.3d 914, 924 (10th Cir. 2016) (citing 42 U.S.C. § 2000e3(a) (italics added). See also Brown v. Unified Sch. Dist. No. 501, 459 Fed. Appx. 705, 711 (10th
Cir. 2012) (“Title VII's anti-retaliation provision forbids an employer from discriminating against
an employee . . . because that individual opposed any practice made unlawful by Title VII or made
a charge, testified, assisted, or participated in a Title VII proceeding or investigation.”) (quotation
marks omitted). A plaintiff may establish a Title VII retaliation claim through either direct
evidence that retaliation played a motivating part in the adverse employment decision or through
the burden-shifting framework of McDonnel Douglas. Hansen, 844 F.3d at 925. To make a prima
facie case of retaliation, a plaintiff must show: (1) she engaged in protected opposition to
discrimination; (2) she subsequently suffered adverse action by the employer; and (3) there was a
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causal connection between the protected activity and the materially adverse action. Id.; Sprague v.
Thorn Americas, Inc., 129 F.3d 1355, 1367 (10th Cir. 1997).
Defendants argue that Plaintiff has not met her burden of producing evidence
demonstrating that she engaged in protected activity or that a causal connection existed between
her alleged protected activity and any alleged materially adverse action. Turning to the first prong
of the prima facie case, when “an employee communicates to her employer a belief that the
employer has engaged in a form of employment discrimination, that communication virtually
always constitutes the employee's opposition to the activity.” Hansen, 844 F.3d at 926 (internal
quotations omitted). Plaintiff contends she engaged in protected activity when she filed her
grievance on April 27, 2018. In that grievance, however, Plaintiff did not oppose any practice
made unlawful by Title VII or the NMHRA or make a charge under Title VII or the NMHRA.
Instead, in the grievance DeLopez filed with her union, she complained that board policies
regarding professional development and training were not followed; she experienced a pattern of
unprofessional behavior by Navarrette and Pargas, including an angry outburst by Navarrette; and
Navarrette lowered her evaluation scores without sufficient reason and because of standards not
appropriate for an art class. Plaintiff, however, did not allege in the grievance that any
unprofessional behavior or bias against her was because of her age, or any other protected category
under Title VII or the NMHRA. (See Pl.’s Ex. 10, ECF No. 61-1 at 35 of 36.) Nor can a reasonable
inference be made from her allegations therein that she was opposing an unlawful practice under
Title VII or the NMHRA.
Plaintiff also contends that her “supervisory report, complaints to the superintendent,
appeals, and written opposition” constitute protected activity. (See Pl.’s Resp. 25, ECF No. 61.)
Plaintiff, however, has not demonstrated that she complained about age discrimination in violation
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of the ADEA or NMHRA such that Defendants would have understood she was engaging in
protected activity. Finally, Plaintiff argues that Defendants attacked her teaching license
approximately five weeks after her constructive discharge. Defendants, however, submitted the
complaint to PED the day before Plaintiff filed her EEOC complaint, which alleged age
discrimination for the first time. The PED complaint therefore could not have been made in
retaliation for Plaintiff complaining of age discrimination. Plaintiff has therefore failed to show
evidence of the first and third requirements to establish a prima facie case of retaliation against her
under Title VII or the NMHRA. Nor is there any direct evidence of retaliation because of protected
activity. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s retaliation
claims brought under the ADEA (Count II) and the NMHRA (Count V).
Constructive Discharge in Violation of the ADEA (Count VII) and NMHRA
Defendants previously moved for judgment on the pleadings on Counts VII and VIII
because constructive discharge is not an independent cause of action. In a Memorandum Opinion
and Order, this Court ruled:
Plaintiff expressly invokes the ADEA and NM[H]RA in Counts VII and VIII,
respectively, and thus Counts VII and VIII are reasonably construed as asserting
ADEA and NMHRA claims based on a constructive discharge theory, not as
separate common law retaliatory discharge or due process claims…. While the
ADEA and NMHRA constructive discharge claims may be redundant of some of
her other claims, the Court will not dismiss them.
Mem. Op. and Order 10, ECF No. 72.
As discussed supra, this Court assumed for purposes of this motion that Plaintiff was
constructively discharged or constructively terminated, but even so assuming, Plaintiff cannot
prevail on her claims because she failed to establish that her discharge/termination was because of
age discrimination. For the reasons given above, Defendants are entitled to summary judgment on
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Plaintiff’s constructive discharge claims brought under the ADEA and NMHRA in Counts VII and
Violation of NMWPA (Count IX)
The NMWPA, N.M. Stat. Ann. § 10-16C-1 et seq., prohibits a public employer from taking
retaliatory action against an employee for communicating to the public employer or a third party
about an action or failure to act that the employee in good faith believes is an unlawful or improper
act; for providing information to a public body as part of an investigation, hearing, or inquiry about
an unlawful or improper act; or for objecting to or refusing to participate in an unlawful or
improper act. See N.M. Stat. Ann. § 10-16C-3 (1978, 2018 Cummulative Supp.). The NMWPA
defines an “unlawful or improper act” as
a practice, procedure, action or failure to act on the part of a public employer that:
(1) violates a federal law, a federal regulation, a state law, a state administrative
rule or a law of any political subdivision of the state;
(2) constitutes malfeasance to public office; or
(3) constitutes gross mismanagement, a waste of funds, an abuse of authority or a
substantial and specific danger to the public.
Id. at § 10-16C-2(E). “Gross mismanagement” includes a management action or inaction which
creates a substantial risk of significant adverse impact upon the public employer’s ability to
accomplish its mission. Velasquez v. Regents of Northern New Mexico College, 2021-NMCA-007,
¶ 36, 484 P.3d 970. The NMWPA defines a retaliatory action as “any discriminatory or adverse
employment action against a public employee in the terms and conditions of public employment.”
N.M. Stat. Ann. § 10-16C-2(D).
The Tenth Circuit has interpreted the federal WPA to require proof of three elements to
establish a violation. See Wells v. Shalala, 228 F.3d 1137, 1146-47 (10th Cir. 2000). To state a
Given this Court’s ruling that Defendants are entitled to summary judgment on the merits of Plaintiff’s NMHRA
claims, this Court need not reach the individual Defendants’ additional argument that they are entitled to judgment on
these claims because Plaintiff failed to exhaust her administrative remedies before filing suit.
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prima facie case under the WPA, a plaintiff must establish that (i) the employee made a protected
disclosure; (ii) the employer took an adverse employment action against the employee; and (iii) a
causal connection exists between the protected disclosure and the adverse action. Id. The NMWPA
was modeled after the federal WPA, and thus, cases interpreting the federal WPA have persuasive
value. Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, ¶ 19, 357 P.3d 453. While the
federal WPA does not expressly limit whistleblower protection to communications that benefit the
public or pertain to matters of public concern, the law protects “whistleblowing,” distinguishing
between disclosures that benefit “the public by exposing unlawful and improper actions by
government employees from communications regarding personal personnel grievances that
primarily benefit the individual employee.” Id., ¶ 20. The New Mexico Legislature enacted the
WPA “to encourage employees to report illegal practices without fear of reprisal by their
employers.” Janet v. Marshall, 2013-NMCA-037, ¶ 21, 296 P.3d 1253 (internal quotation marks
and citation omitted).
Plaintiff contends that she engaged in protected activity under the WPA by the following:
(i) her complaints to Cowan in August/September 2017 opposing workplace discrimination,
harassment, and bullying; (ii) her appeal of the issuance of discipline against her in December
2017/January 2018 with BPS administration; (iii) the April 27, 2018 grievance; (iv) her opposition
to BPS’s differential treatment of her; and (v) her opposition to Defendants’ efforts to suspend or
revoke her teaching license. The Court does not find that any of these actions constitute protected
activity within the meaning of the NMWPA. Plaintiff’s purported protected activities for which
she complained related to Defendants’ treatment of her. However, as discussed supra, prior to her
presumed constructive termination, she never alleged that the bias and actions taken against her
were violations of federal or state discrimination or other law. It was not until after her employment
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ended that Plaintiff communicated her belief that Defendants were violating anti-discrimination
laws. Plaintiff’s NMWPA claim refers to actions similar to her Title VII and NMHRA
discrimination and retaliation claims. But as discussed above, those arguments and supporting
facts are insufficient to raise a genuine dispute about whether Defendants failed to renew her
contract or constructively terminated Plaintiff for any reason other than the non-retaliatory
justifications concerning her physical restraint of a student. She thus cannot show that she
complained about activity that violated federal or state law.
Nor did Plaintiff communicate about malfeasance to public office, gross mismanagement,
waste of funds, or objections to or refusals to participate in an unlawful or improper act as defined
by the NMWPA. Plaintiff’s communications amounted to complaints about personnel matters or
efforts taken by her to object to personnel actions taken against her, not matters invoking public
interest or public concern to which the NMWPA is directed. Because Plaintiff cannot meet the
first element of a prima facie case under the NMWPA, the Court will grant summary judgment to
Defendants on Plaintiff’s claim in Count IX, and it need not address the other elements. Cf. Lobato
v. New Mexico Environment Dept., 733 F.3d 1283, 1286, 1297 (10th Cir. 2013) (affirming
summary judgment on plaintiff’s NMWPA claim where he only invoked arguments and evidence
presented for his Title VII claims, but those arguments and supporting facts were insufficient to
raise genuine dispute about whether defendant fired plaintiff for any reason other than
nonretaliatory justifications provided in dismissal letter); Wills, 2015-NMCA-105, ¶¶ 16-21
(holding that plaintiff’s filing of complaint communicating to his employer and public that
defendants were abusing their authority by withholding his contractually agreed-upon pay was not
an activity protected by NMWPA).
Breach of Contract (Count X)
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Defendants argue that Plaintiff’s employment contract is governed by the New Mexico
School Personnel Act (“SPA”), and because she resigned, she waived the right to appeal the
decision to the school board and the courts. According to Defendants, Plaintiff had the right to
request a hearing before the school board to force the District to show just cause, but this did not
occur because she resigned, was paid for the duration of her contract, and she did not request a
hearing. They further contend that, because she resigned, Defendants did not breach the contract.
Moreover, Defendants assert that they would have had cause to terminate her contract because of
her inappropriate handling of students.
In response, Plaintiff solely focused on Defendants’ just-cause argument. Plaintiff contends
that “the ‘just cause’ for non-renewal required after having executed the enforceable Appointment
Memorandum and the contract in place during her 2017-18 contract does not exist under the facts
of this case.” (Pl.’s Resp. 31, ECF No. 61). Plaintiff states she did not violate a law, rule, regulation,
or her contract, and other BPS teachers who acted similarly were not so disciplined.
To prevail on a breach of contract claim, a plaintiff is required to prove a valid contract,
breach of the contract, and damages caused by the breach. See Constr. Contracting & Mgmt., Inc.
v. McConnell, 1991-NMSC-066, ¶ 10, 112 N.M. 371. However, any “attempt by the Board to enter
into a contract or promulgate a termination policy giving an employee rights in conflict with the
School Personnel Act would be ultra vires and void.” Swinney v. Deming Bd. of Educ., 1994NMSC-039, ¶ 9, 117 N.M. 492.
The SPA sets forth administrative procedures and remedies for an employee to contest a
decision to terminate an employee for just cause. See N.M. Stat. Ann. §§ 22-10A-24 and 22-10A25 (1978) (as in effect from April 4, 2003, until June 13, 2019); Franco v. Carlsbad Municipal
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Schools, 2001-NMCA-042, ¶ 10, 28 P.3d 531. In 2018, Section 22-10A-24(C) of the SPA stated,
in relevant part, that an employee who
receives a notice of termination … may request an opportunity to make a statement
to the local school board … on the decision to terminate him by submitting a written
request to the local superintendent … within five working days from the date
written notice of termination is served upon him….
N.M. Stat. Ann. § 22-10A-24(C) (as in effect from April 4, 2003, until June 13, 2019).10 The local
superintendent had to provide written reasons for the notice of termination within five working
days from the date the employee requested a meeting and when the local superintendent received
the written request for reasons. Id. The SPA further provided:
The employee's request pursuant to Subsection C of this section shall be granted if
he responds to the local superintendent's … written reasons as provided in
Subsection C of this section by submitting in writing to the local superintendent …
a contention that the decision to terminate him was made without just cause. The
written contention shall specify the grounds on which it is contended that the
decision was without just cause and shall include a statement of the facts that the
employee believes support his contention. This written statement shall be submitted
within ten working days from the date the employee receives the written reasons
from the local superintendent….
Id. § 22-10A-24(E) (as in effect from April 4, 2003, until June 13, 2019). The local school board
then must meet to hear the employee’s statement in no less than five or more than fifteen working
days after the local school board receives the statement and notify the parties of its decision within
five working days from the end of the meeting. Id. § 22-10A-24(F) (as in effect from April 4, 2003,
until June 13, 2019). An aggrieved employee may then appeal the decision to an arbitrator, id. §
22-10A-25(A), and a de novo hearing must be held, and a decision must be made by the
independent arbitrator, id. § 22-10A-25(D) (as in effect as of April 4, 2003). The arbitrator’s
The substance of this provision was formerly codified at N.M. Stat. Ann. § 22-10-14, but the Legislature recompiled
§ 22-10-14 as § 22-10A-21 to 22-10A-25, effective April 4, 2003. See 2003 New Mexico Laws Ch. 153 (H.B. 212),
§ 72(F) (Recompilation). Further amendments occurred in 2019 and 2021, but those amendments are not relevant here
because Plaintiff asserts that she was constructively discharged/terminated in May 2018.
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decision is final and non-appealable, except when “the decision was procured by corruption, fraud,
deception or collusion, in which case it shall be appealed to the district court….” Id. § 22-10A25(P) (as in effect April 4, 2003).
An employee must exhaust her administrative remedies before a court has jurisdiction to
consider an employee’s claim that the school board breached its contract. Cf. Quintana v. State
Bd. of Ed., 1970-NMCA-074, ¶¶ 2-3, 8, 81 N.M. 671 (holding that, where school district did not
re-employ school principal as principal for following year, and where employee appealed decision
directly to State Board, neither State Board nor court of appeals had jurisdiction to consider
employee’s appeal because no hearing was held before local board; mandamus relief is available
to employee to test right to hearing before local board if one is not provided). Exhaustion of
administrative remedies is required prior to filing suit unless the school district’s own actions
thwarted the employee’s abilities to invoke and exhaust those administrative remedies. Franco,
2001-NMCA-042, ¶ 10.
In Sanchez v. Board of Education of Town of Belen, the New Mexico Supreme Court
considered a case in which the employee sought reinstatement of employment as a teacher, after
being convinced by the school board to voluntarily retire, or the board would bring charges against
him. 1961-NMSC-081, ¶ 3, 68 N.M. 440. His contract was not renewed, he was recommended to
be placed on retirement status, and the board did not serve charges against him. Id. Upon learning
that he could not be forced to retire, plaintiff advised the board by letter that their action was
improper and requested a hearing by the board on the retirement decision. Id. The local board held
what it termed a “hearing,” but did not change its decision as to retirement, and when the plaintiff
sought a review by the state board of education, it ultimately upheld the decision of the local board.
Id. The plaintiff then filed suit to require the board to reinstate him and pay his compensation for
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the intervening period. Id. The board argued that the question was a matter of retirement, not nonrenewal or discharge, while the plaintiff insisted that he was discharged. Id. ¶ 4.
The Sanchez court noted that the problem was confused because the plaintiff changed his
mind after the end of the school year, when the statute contemplated notice before the end of the
term. Id. There was never, however, a formal hearing or request for one as to the actual charges
against the plaintiff. Id. ¶ 5. The New Mexico Supreme Court agreed with the trial court that the
there was substantial evidence showing that plaintiff’s “claimed retirement was forced, or
involuntary, and that therefore Sanchez was discharged.” Id. ¶ 5. The Sanchez court then looked
at whether the remedy of mandamus was available. Id. It explained that the statute governing
dismissal of tenured teachers provided for a full and complete administrative procedure in the
event a tenured teacher was dismissed. See id. ¶ 10. The New Mexico Supreme Court, however,
stated that the plaintiff failed to follow the statute and filed a writ of mandamus, resulting in the
trial court’s decision having by-passed the administrative portions of the act and substituting its
judgment for that of the board or the state board. See id. ¶ 11. It explained that the mandamus
remedy was not available to the plaintiff because he could not “seek to enforce a right under the
statute and in the same breath fail to utilize the procedures allowed him thereunder.” Id. ¶ 14.
Because the plaintiff failed to exhaust his statutory remedy, he was not entitled to the writ. Id.
While Plaintiff here is not seeking a writ, Sanchez is instructive in its explanation that the
administrative remedies must be followed in situations of constructive discharge or constructive
termination. The Court will again assume without deciding that Plaintiff brought forward enough
evidence from which a reasonable jury could conclude that she involuntarily resigned, and that her
employment was, de facto, terminated. The record shows that Defendants provided Plaintiff with
a written letter of reprimand on May 10, 2018, stating the grounds for discipline against her, and
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she was verbally notified in a meeting that same day that her employment would be terminated if
she did not resign. Plaintiff argues that when she resigned on May 10, 2018, she did so under
pressure such that it was involuntary and constituted a constructive termination. Assuming that is
the case, then Plaintiff had notice as of May 10, 2018, of her constructive termination, so the time
for administratively appealing her termination began to run on that date. Cf. Sanchez, 1961NMSC-081, ¶ 12 (concluding that, because the plaintiff’s retirement was involuntary, the statute
was “sufficiently broad so as so as to be considered as applying as of the date of the original written
notice of retirement …, and the status of the parties shall revert to that time as to any further
proceedings in the instant controversy”).
In her response to Defendants’ motion for summary judgment, Plaintiff did not address
their arguments that she waived her right to appeal any such termination or discharge by failing to
appeal the decision to the school board and then the courts in accordance with Section 22-10A-24
of the SPA. Plaintiff failed to cite evidence in her response to show that she complied with Section
22-10A-24 by submitting a written request for a hearing within five working days of her notice of
termination, as required before filing suit to contest a termination. Plaintiff thus failed to satisfy
her burden on summary judgment to cite and produce evidence establishing exhaustion of her state
statutory remedies to contest whether BPS had just cause not to renew her license.
The Court nevertheless notes that, despite the lack of a citation and argument by Plaintiff,
Plaintiff submitted as Exhibit 3 an unsworn timeline by Plaintiff, which contains a statement
pertinent to the issue of following administrative procedures necessary to contest a just-cause
termination. As relevant here, Exhibit 3 states:
May 17th 2018 …
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Email to Superintendent Request for meeting – no response I want my job back and
it is hard to believe that I lost it this way under his watch. He supported me all the
way in previous years?
June 11th 2018
Send email requesting Exit meeting to Superintendent, I have questions towards
my licensure application and my evaluation.
Superintendent responds that HR director will take care of scheduling exit
June 16th 2018
Exit meeting (5 weeks after forced resignation) …
On licensing application I need to know if “anybody has taken action towards your
license” HR director tells me “not as far as I know, no”
Does not want to take any responsibility for evaluation grading by principal which
is obviously retaliatory in nature. I question him diligently of when he was not
responsible who was and why he did not pass the request to responsible person.
Answers are evasive….
(Pl.’s Ex. 3, ECF No. 61-1 at 16-17 of 36.) Because Plaintiff did not cite to or rely on this portion
of the record, and Defendants thus did not have an opportunity to respond to the evidence, the
Court will not rely on it. Nor is the Court convinced it is admissible evidence and not hearsay. Not
only is the timeline unsworn, but the emails themselves are not before the Court. But even if the
Court were to consider the evidence, the Court finds that Exhibit 3 does not demonstrate that
Plaintiff submitted to Superintendent Cowan within five working days from the date of her
constructive termination a request to make a statement to the local school board on the decision to
terminate her or otherwise make clear that she wanted to pursue her administrative rights under
the SPA. Because Plaintiff has not argued or submitted admissible evidence to create a genuine
factual issue about whether she exhausted her administrative remedies under the SPA, or
alternatively, how Defendants thwarted her efforts under the SPA such that her suit may go
forward, Defendants are entitled to summary judgment on Plaintiff's claims for breach of contract.
Case 1:19-cv-00735-JCH-KK Document 80 Filed 09/07/21 Page 35 of 35
Cf. Martinez v. New Mexico Children Youth & Families Department, No. CIV 03-0639
MCA/RLP, 2004 WL 7337735, at *9 (D.N.M. July 30, 2004) (granting summary judgment to
defendant on plaintiff’s breach of contract claim where plaintiff teacher failed to show he complied
with SPA by submitting written request for hearing within five working days of service of notice
of termination or providing defendants with written contention challenging his termination within
required ten-day period).11
IT IS THEREFORE ORDERED that Defendants’ Motion for and Memorandum in
Support of Summary Judgment (ECF No. 56) is GRANTED, and Plaintiff’s claims are
DISMISSED WITH PREJUDICE.
SENIOR UNITED STATES DISTRICT JUDGE
Because Defendants are entitled to summary judgment for failure of Plaintiff to have exhausted her administrative
remedies prior to suit, the Court need not consider Defendants’ alternative argument that they had just cause to
terminate her employment as a matter of law.
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