Sinfuego v. Curry County Board of County Commissioners et al
ORDER Granting in Part and Denying in Part 78 Motion to Strike by Magistrate Judge Carmen E. Garza. ORDER Granting 69 Motion for Summary Judgment by Magistrate Judge Carmen E. Garza (mhr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CV No. 15-563 CG/LAM
CURRY COUNTY BOARD OF
COUNTY COMMISSIONERS, et al.,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Defendant Lance Pyle’s Motion for
Summary Judgment and Qualified Immunity (the “Motion for SJ”), (Doc. 69), filed
November 28, 2016; Plaintiff Amanda Sinfuego’s Response to “Defendant Lance Pyle’s
Motion for Summary Judgment and Qualified Immunity” [Doc. 69] (the “Response to the
Motion for SJ”), (Doc. 77), filed December 18, 2016; and Defendant Lance Pyle’s Reply
in Support of his Motion for Summary Judgment and Qualified Immunity (the “Reply to
the Motion for SJ”), (Doc. 82), filed January 5, 2017. Additionally before the Court is
Plaintiff’s Motion to Strike Summary Judgment Affidavit of Lance Pyle in part [Doc. 69]
(the “Motion to Strike”), (Doc. 78), filed December 19, 2016; Defendant Lance Pyle’s
Response to Plaintiff’s Motion to Strike (the “Response to the Motion to Strike”), (Doc.
81), filed January 5, 2017; and Plaintiff Amanda Sinfuego’s Reply to “Defendant Lance
Pyle’s Response to Plaintiff’s Motion to Strike” (the “Reply to the Motion to Strike”),
(Doc. 84), filed January 10, 2017. The Court has considered the Motions, the
Responses, the Replies, and relevant law. The Court will GRANT IN PART AND DENY
IN PART Plaintiff’s Motion to Strike and GRANT Defendant's Motion for SJ.
Factual and Procedural History
This case arises from the firing of Plaintiff by Defendant Curry County Board of
County Commissioners (“Defendant Curry County Commissioners”). Plaintiff was hired
to work at the Curry County Detention Center (“Detention Center”) in 2010. (Doc. 1 ¶
11). In 2012, officers and employees at the Detention Center discussed forming a union.
(Doc. 69 at 3, ¶ 1). On November 16, 2012, Plaintiff and other employees at the
Detention Center prepared a letter “regarding the abhorrent and dangerous conditions
for inmates[ ] and employees[ ] and the misuse of public funds.” (Doc. 77 at 9 ¶ C). At
the time, Plaintiff held a temporary position as the executive secretary to the Detention
Center Administrator.1 (Docs. 69 at 3 ¶ 2, 77 at 3 ¶ 2(i)). Plaintiff and another staff
member, Officer Rene Garcia, spoke to Defendant Lance Pyle (“Defendant Pyle”) on
December 3, 2012 about issues with the Detention Center and the staff’s discussions
regarding forming a union and presented him with the letter that was composed on
November 16, 2012. (Docs. 69 at 3 ¶ 3; 77 at 9 ¶ D). Defendant Pyle is and was at the
time the Curry County Manager. (Doc. 1 ¶ 8). During the meeting, Defendant Pyle told
Plaintiff that she was part of the managerial staff and could not be involved in union
organization. (Doc. 69 at 3 ¶ 4). Defendant Pyle states that he never raised the issue of
a union to Plaintiff again after this meeting. (Doc. 69 at 3 ¶ 5).2
In emails exchanged between Defendant Pyle and several Detention Center
employees on December 6, 2012, Defendant Pyle reiterated that Plaintiff could not be a
The parties dispute whether Plaintiff was an “interim” executive secretary or a “temporary” executive
secretary. The Court does not find this dispute to be material to the case, but adopts Plaintiff’s
terminology as Plaintiff is the non-moving party. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)
(“[A] District Court must resolve any factual issues of controversy in favor of the non-moving party.”).
Plaintiff disputes this claim; however, none of Plaintiff’s cited exhibits contradict this assertion by
Defendant Pyle; therefore, the Court will deem it undisputed.
part of collective bargaining based on her position as the executive secretary. (Doc. 77
at 10 ¶ F). That same day, Plaintiff sent a text message to Detention Center employees
about forming a union. (Doc. 77 at 10 ¶ G). In the text message, Plaintiff stated that
Defendant was trying to “scare everyone” and “separate us and keep us from forming a
union.” (Doc. 77-5 at 7). Plaintiff was not disciplined by her supervisor, Detention Center
Administrator Gerry Billy, for sending the text message. (Doc. 77 at 10 ¶ I). On
December 10, 2012, Defendant Pyle accused Plaintiff of distributing “misleading and
slanderous” material during work hours. (Docs. 77 at 10 ¶ H, 77-5 at 8).3 Defendant
Pyle was dissatisfied with Mr. Billy’s handling of the text message situation. (Doc. 77 at
11 ¶ M). After these events, Mr. Billy was fired. Plaintiff claims that Mr. Billy was fired in
retaliation for not disciplining Plaintiff, while Defendant maintains that Mr. Billy’s contract
was not renewed. (Docs. 77 at 10 ¶ J, 78 at 5 ¶ J).
Following the text message and union organization efforts, Plaintiff claims that
Defendant Pyle retaliated against her for her union activities by stripping her of her
seniority, moving her to the night shift, taking her off the inmate extraction unit, taking
away her job as property manager, removing her training officer status, and ostracizing
her. (Doc. 77 at 11 ¶ O). Despite his alleged actions, Plaintiff continued to work to
unionize the Detention Center employees through 2013. (Doc. 77 at 13 ¶ U).4
Defendant Pyle disputes that he retaliated against Plaintiff. (Doc. 78 at 6 ¶ O).
According to Defendant Pyle, two events led to Plaintiff’s termination. First, on
November 12, 2013 Plaintiff participated in a conversation that Defendant Pyle
Defendant Pyle disputes this fact as not properly supported, (Doc. 78 at 5 ¶H), but Plaintiff submitted
Defendant Pyle’s email regarding this allegation with her Response.
Defendant Pyle disputes this fact as not properly supported. (Doc. 78 at 7 ¶ U). However, Plaintiff made
these statements at her second post termination hearing; therefore, considering the events in the light
most favorable to Plaintiff, the Court will consider this fact.
describes as “sexual in nature.” (Docs. 69 at 3 ¶ 6). From the exhibits, it appears that
Plaintiff used an administrative restroom during her shift and when she left the restroom,
she commented to several colleagues about how dirty it was and stated that there was
a “pubic hair on the toilet.” (Doc. 77-18 at 88). This led one of the other officers to start
an hour long conversation about his personal grooming habits and sex life. (Docs. 69-2
at 1-2, 69-3 at 1, 77-18 at 92). Plaintiff disputes that this conversation was “sexual in
nature.” (77 at 5 ¶ 6(i)-(v)). On November 15, 2013, Plaintiff submitted a written
statement detailing her concerns about the nature of the conversation. (Docs. 77 at 5 ¶
Second, Plaintiff attended a sexual harassment seminar with her colleagues on
November 13, 2013. (Doc. 69 at 4 ¶ 7). During the seminar, Plaintiff drew male genitalia
on a picture of one of her colleagues at the seminar and sent the picture to several
colleagues.5 On December 3, 2013, Ms. Tori Sandoval, Curry County Detention Center
Administrator, informed Plaintiff of her recommendation to terminate Plaintiff for violating
Curry County’s sexual harassment policy and notified Plaintiff of a pre-termination
hearing that would be conducted by Defendant Pyle. (Doc. 69 at 4 ¶ 8).
Defendant Pyle states that he did not know anything about the underlying
investigation into the incident or Ms. Sandoval’s decision until Ms. Sandoval copied
Defendant Pyle on her December 3, 2013 letter to Plaintiff.6 (Doc. 69 at 4 ¶ 12).
Defendant Pyle conducted the pre-termination hearing on December 30, 2013 and
Plaintiff disputes this information, stating that she drew a “phallic symbol” on the picture of “a good friend
and co-worker” and that it was an isolated incident that did not interfere with anyone’s job performance
and no one was offended. (Doc. 77 at 5 ¶ 7). However, in the materials Plaintiff cites to, she admitted that
she drew male genitalia on a picture of a friend; therefore, the Court considers these facts to be
Plaintiff argues that this information is disputed; however none of her assertions or the exhibits she
references contradicts the statement. Therefore, the Court considers this fact undisputed.
upheld the termination recommendation on January 7, 2014. (Docs. 1 ¶ 28, 69 at 4 ¶ 9).
Defendant Pyle argues that his only involvement in this matter was to conduct the predetermination hearing and accept Ms. Sandoval’s recommendation to terminate
Plaintiff. (Doc. 69 at 4 ¶ 15). Plaintiff argues that Defendant Pyle fired her for her union
activities and the sexual harassment claim was simply pretext. (Doc. 77 at 7 ¶ 13(i)-(vi).
After the pre-determination hearing, Plaintiff appealed the decision through a posttermination hearing. (Doc. 69 at 8 ¶ 18). The decision to terminate Plaintiff was upheld
at two post-termination hearings.7 (Docs. 69 at 8 ¶ 19, 69-2, 69-4).
Thereafter, on July 1, 2015, Plaintiff filed her Civil Complaint for Violation of Civil
Rights and the Whistleblower Protection Act (the “Complaint”), alleging claims against
several defendants. (Doc. 1). As relevant here, Plaintiff claims that Defendant Pyle
violated her First Amendment right of free speech, right to associate, and right to
petition for redress of grievances. (Doc. 1 at 10-13). Specifically, Plaintiff contends that
she spoke publicly about forming a union, associated with the union, and complained
about the detention center facilities. She further states that Defendant Pyle tried to
intimidate and prevent the Detention Center employees from forming a union and
terminated Plaintiff’s employment based on her union activities. (Doc. 1 ¶¶ 32-33, 3940, 46-50). Plaintiff also alleged that Defendant Pyle violated her rights under the
Whistleblower Protection Act (“WPA”). (Doc. 1 at 13-15). As to the WPA claim, after a
recent change in New Mexico law, Plaintiff admits that she cannot sue Defendant Pyle
in an individual capacity under the WPA. (Doc. 77 at 23) (citing Flores v. Herrera, 2016-
Plaintiff disputes these facts; however her reasoning is unclear as to why she disputes them and the
exhibits clearly show that the termination was upheld at two post-termination hearings, so the Court
deems these facts to be undisputed.
NMSC-033, 384 P.3d 1070 (N.M. 2016)). Therefore, Plaintiff agrees to dismiss her WPA
claims against Defendant Pyle. (Doc. 77 at 23).
Currently before the Court is Defendant Pyle’s Motion for SJ, which asks the
Court to grant summary judgment on Plaintiff’s claims against Defendant Pyle, or in the
alternative, find that Defendant Pyle is eligible for qualified immunity. Additionally,
Plaintiff asks the Court to strike certain paragraphs in Defendant Pyle’s affidavit
associated with the Motion for SJ.
Standard of Review
A. Summary Judgment
The court shall grant summary judgment only if “the movant shows that there is
no genuine dispute as to any material fact and that the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). The movant bears the burden of making a prima
facie demonstration that there is no genuine issue of material fact. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). A fact is material if it might affect the outcome of the case under
the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if the evidence is such that a reasonable jury could resolve
the issue in favor of the nonmoving party. Id. If the moving party has demonstrated an
absence of material fact, the “nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).
“[W]here the non-moving party will bear the burden of proof at trial on a
dispositive issue, that party must go beyond the pleadings and designate specific facts
so as to ‘make a showing sufficient to establish the existence of an element essential to
that party's case’ in order to survive summary judgment.” English v. Colo. Dep't of
Corr., 248 F.3d 1002, 1007 (10th Cir. 2001) (internal citations and quotation marks
omitted). The mere existence of some evidence in support of the nonmoving party,
however, will not be sufficient for denial of a motion for summary judgment; there must
be enough evidence to enable a jury to reasonably find for the nonmoving party on that
issue. See Anderson, 477 U.S. at 249. The nonmovant must go beyond the allegations
and denials of her pleadings and provide admissible evidence, which the Court views in
the light most favorable to her. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490
(10th Cir.1995). The facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein. See Adler, 144 F.3d at 671.
B. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). It is an entitlement not to stand trial or face the other burdens of litigation, and
acts as immunity from suit rather than a mere defense to liability. Jiron v. City of
Lakewood, 392 F.3d 410, 414 (10th Cir. 2004) (internal citations omitted).
Where a defendant raises the defense of qualified immunity in a motion for
summary judgment, the plaintiff must meet a “heavy two-part burden.” Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001). First, a plaintiff must establish that the
defendant’s actions violated a constitutional or statutory right. Id. (internal citations and
quotations omitted). A plaintiff must then demonstrate that the right at issue was clearly
established at the time of the defendant’s unlawful conduct. Id. (internal citations and
“If a plaintiff fails to satisfy either part of the two-part inquiry, the court must grant
the defendant qualified immunity.” Id. (citing Albright v. Rodriguez, 51 F.3d 1531, 1534
(10th Cir. 1995)). Thus, a court may consider either prong of the qualified immunity
analysis. See Pearson, 555 U.S. at 236. In other words, at the summary judgment
stage, although a court “will review the evidence in the light most favorable to the
nonmoving party, . . . the record must clearly demonstrate the plaintiff has satisfied his
heavy two-part burden; otherwise the defendants are entitled to qualified immunity.”
Medina, 252 F.3d at 1128 (citing Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir.
C. Excluding Affidavit Testimony
At the summary judgment stage, evidence does not need to be submitted “in a
form that would be admissible at trial.” Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. at 324)
(internal quotation marks omitted). Parties may submit affidavits “despite the fact that
affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may
ultimately be presented at trial in an admissible form.” Id. (citing Bryant v. Farmers Ins.
Exch., 432 F.3d 1114, 1122 (10th Cir. 2005)). However, “the content and substance of
the evidence must be admissible.” Id. (quoting Thomas v. Int’l Bus. Machs., 48 F.3d
478, 485 (10th Cir. 1995)) (internal quotation marks omitted). Federal Rule of Civil
Procedure 56 states that affidavits “must . . . set out facts that would be admissible in
evidence.” FED. R. CIV. P. 56(c)(4). Therefore, hearsay statements in affidavits that
would not be admissible at trial must be disregarded by the Court. Id.
Defendant Pyle argues that he is entitled to summary judgment, or in the
alternative, qualified immunity. (See Doc. 69). Specifically, Defendant Pyle argues that
he is entitled to summary judgment because he had no personal participation in
Plaintiff’s termination. (Doc. 69 at 3). Defendant Pyle further argues that he is entitled to
qualified immunity based on a lack of clearly established law that would have put him on
notice that he was violating Plaintiff’s rights. (Doc. 69 at 3).
Plaintiff responds that Defendant Pyle retaliated against her by terminating her
employment on the basis of her union activities. (Doc. 77 at 2). Plaintiff contends that
the termination proceedings were pre-textual. (Doc. 77 at 3). Finally, Plaintiff states that
Defendant Pyle is not entitled to qualified immunity because there is a factual dispute as
to the reason that Plaintiff was terminated. (Doc. 77 at 14-15).
Plaintiff also filed a Motion to Strike, arguing that portions of Defendant Pyle’s
affidavit are inadmissible. (See Doc. 78). The Court will address the Motion to Strike first
and then turn to the Motion for SJ.
A. Plaintiff’s Motion to Strike
Plaintiff asks the Court to strike ten paragraphs from Defendant Pyle’s Affidavit to
his Motion for SJ, arguing that they are inadmissible for various reasons. (Doc. 78 at 12). The Court will address each of Plaintiff’s Objections.
Plaintiff argues that four paragraphs from Defendant Pyle’s Affidavit contain
inadmissible hearsay. The paragraphs state:
Paragraph 11: I was informed that Lindsey Schwebke, who was Personnel
Coordinator at that time, had learned that Ms. Sinfuego had taken pictures of
instructors who were giving a “Toxic Talk” seminar on November 13, 2013; the
subject of the class included sexual harassment.
Paragraph 12: Ms. Sinfuego had drawn pictures of penises on the faces of the
instructor and/or her coworkers in a sexually suggestive way.
Paragraph 13: Ms. Sinfuego had sent those pictures to three other employees
who were attendees in the class.
Paragraph 14: Based on the investigation, and Ms. Sinfuego’s admissions, Ms.
Schwebke and Ms. Sandoval proposed to terminate Ms. Sinfuego, after
consulting with the County Attorney.
(Doc. 69-1, Ex. A ¶¶ 11-14).
Plaintiff also argues that there is no foundation for this information and Defendant
Pyle does not have personal knowledge of the events in paragraphs 11 to 13. (Doc. 83
Defendant Pyle maintains that paragraph 11 is offered for its effect on him and to
explain his rationale in terminating Plaintiff. (Doc. 81 ¶ 11). “Statements offered not to
prove the truth of the statements, but rather ‘offered for the effect on the listener . . . are
generally not hearsay.’” United States v. Ballou, 59 F. Supp. 3d 1038, 1058 (D.N.M.
2014) (quoting Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir. 1993)).
Defendant Pyle also argues that Plaintiff admitted the information in Paragraph 11.
(Doc. 81 ¶ 11). Defendant Pyle further argues that the information in paragraphs 12 and
13 is admissible at trial through documents. (Doc. 81 ¶¶ 12-13).
Ms. Sandoval copied Defendant Pyle on the letter sent to Plaintiff notifying
Plaintiff of the County’s intent to terminate her and describing the incident referenced in
paragraphs 11 to 13. (Doc. 69-1, Ex. A ¶¶ 8, 9). Additionally, Defendant Pyle conducted
the pre-determination hearing that affirmed Plaintiff’s termination. (Doc. 69-1, Ex. A ¶
10). As such, given that Defendant Pyle reviewed all of these documents, the Court
disagrees with Plaintiff that Defendant Pyle would not have personal knowledge of this
information. (See Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005)
(holding that after looking at documents, the Plaintiff’s recitation of the information in the
documents in her declaration was “based on . . . personal knowledge”)).
As to the hearsay issue, although these paragraphs contain hearsay statements,
Plaintiff admitted the information in paragraphs 11 to 13 in an interview with Lindsey
Schwebke, the Personnel Coordinator, and it therefore falls into the hearsay exception
of admission by a party opponent. FED. R. EVID. 801(d)(2)(A). Additionally, the
information in the paragraphs is admissible at trial through documents, such as the
post-termination hearing documents. (See Doc. 81-1, Ex. A at 1-2; Docs. 81-2, 3, & 4).
Therefore, the Court will not strike these paragraphs and will consider them in its
analysis. However, the Court will strike the clause in paragraph 12 that the male
genitalia was drawn “in a sexually suggestive way” as this is a conclusion and not
supported by the information in the record.
Plaintiff next argues that Defendant Pyle is speculating in paragraph 14 as to why
Ms. Sandoval proposed to terminate Plaintiff. Because this information is available in
other documents that are admissible at trial, including the post-termination hearing
testimony, the Court will not strike this paragraph. (See Doc. 81-5, Ex. D at 22-23).
Inconsistent with the Record
Plaintiff maintains that Paragraph 15 should be struck because it is inconsistent
with the record. (Doc. 78 at 2) (citing Tellez v. City of Belen, No. 13-2123, 560 Fed.
Appx. 812 (10th Cir. May 20, 2014) (unpublished)). The paragraph states:
Paragraph 15: My involvement was solely to conduct the pre-determination
hearing called for by the County Personnel Policy. During that hearing, Ms.
Sinfuego admitted that her behavior was inappropriate.
(Doc. 69-1, Ex. A ¶ 15).
Defendant Pyle argues that paragraph 15 “accurately reflects the record.” (Doc.
81 ¶ 15).
Plaintiff cites to Tellez for her argument. In Tellez, the Tenth Circuit stated that on
a motion for summary judgment, “[w]hen opposing parties tell different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it,
the court should not adopt that version of facts.” Tellez, No. 13-2123, 560 Fed. Appx. at
814 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)) (internal quotation marks
omitted). Defendant Pyle’s statement is not “blatantly contradicted by the record,” and
goes to Defendant Pyle’s state of mind. FED. R. EVID. 803(3). Therefore, the Court will
consider paragraph 15.
Plaintiff argues that four paragraphs from Defendant Pyle’s affidavit are
conclusory and self-serving statements:
Paragraph 18: None of my conduct or decisions were based on any union activity
or union involvement by Ms. Sinfuego.
Paragraph 19: None of my conduct or decisions were based on retaliation for
complaints Ms. Sinfuego allegedly made about the condition of the detention
Paragraph 20: None of my conduct or decisions were based on anything other
than the County’s policy with respect to workplace harassment and sexual
harassment and the conduct of Ms. Sinfuego in having sexually explicit
conversations at work and drawing penises on pictures of her coworkers or
instructor and sending them to County employees.
Paragraph 21: Ms. Sinfuego appealed my determination and was afforded two
separate post dis[c]iplinary hearings. The first conducted by Anne Behl, a Human
Resources Consultant with 26 years combined experience as a personnel
hearing officer and human resources professional, and a subsequent hearing by
Bruce Swingle, the Sierra County manager, with many years[’] experience in the
human resources profession, including county management. In both cases, my
determination was upheld.
(Doc. 69-1, Ex. A ¶¶ 18-22).
Defendant Pyle does not respond to Plaintiff’s argument that the paragraphs are
conclusory or self-serving, but contends that paragraphs 18 and 19 express his state of
mind during the pre-determination hearing and there is no basis to exclude the
statements. (Doc. 81 at 3). Defendant Pyle states that paragraph 20 explains his
rationale at the pre-determination hearing and is admissible at trial. (Doc. 81at 3).
However, “[c]onclusory statements in affidavits opposing a motion for summary
judgment are not sufficient to raise a genuine issue of material fact.” Hook v. Regents of
Univ. of Cal., 394 Fed. Appx. 522, 533 (10th Cir. Sept. 13, 2010) (unpublished) (quoting
First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.3d 1007, 1011 (7th
Cir. 1985)). Because the statements in paragraphs 18 through 20 are conclusory
statements regarding Defendant Pyle’s reasons for firing Plaintiff, the Court will strike
In regard to paragraph 21, Plaintiff claims that Defendant Pyle does not state in
the affidavit that the information is based on personal knowledge, and there is no
foundation for the information. (Doc. 83 at 4). Defendant Pyle responds that he had
personal knowledge of this information from his participation in the post-termination
administrative appeals. The Court agrees that as the Curry County Manager, Defendant
Pyle would have access to the information in paragraph 21. In addition, this information
is available in documents that would be admissible at trial, including the records of the
post-termination hearings. (See Docs. 81-3; 81-6). Thus, the Court will consider
Lack of Foundation
Finally, Plaintiff requests that the Court strike paragraph 22 of Defendant Pyle’s
affidavit because it is conclusory and requires the opinion of an expert witness. The
Paragraph 22: Ms. Sinfuego was provided all the process called for by the
County Policy and has appealed her termination to the state court under the
Rules governing administrative appeal.
(Doc. 69-1, Ex. A ¶ 22).
Defendant Pyle argues that this information is within his personal knowledge.
(Doc. 81 at 3-4). Non-expert testimony in the form of “opinions or inferences must be
‘(a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’s testimony or the determination of the fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge.’” Bryant, 432 F.3d
at 1123 (quoting FED. R. EVID. 701). Based on Defendant Pyle’s job, this information
would be available to him, the information is helpful to the Court to understand the
factual issues in the case, and knowledge of Curry County Policy is not “scientific,
technical, or other specialized knowledge.” Although the bulk of the paragraph is factual
and not conclusory, the Court will strike the work “all” as conclusory. However, the Court
will not strike the rest of the paragraph.
B. Defendant’s Motion for SJ
A civil rights action under § 1983 may be brought against a “person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects,
or causes to be subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. §
1983. To state a claim under § 1983, an injured person must allege a violation of a
federally protected right and must show that the alleged deprivation was committed by
an individual acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Plaintiff claims Defendant Pyle violated her First Amendment rights of
speech, association, and right to petition for redress of grievances. As to her free
speech rights, Plaintiff alleges that she spoke publicly about forming a union and this
speech was a substantial, motivating factor in Defendant Pyle terminating her
employment. (Doc 1 ¶¶ 31, 33). Plaintiff additionally claims that Defendant Pyle
terminated her employment for Plaintiff’s association with the union. (Doc. 1 ¶ 39).
Finally, Plaintiff maintains that her right to petition redress of grievances was violated
because her employment was terminated after she sent emails regarding the union and
the conditions at the Detention Center. (Doc. 1 ¶¶ 46, 48-50).
Defendant Pyle contends that he is entitled to summary judgment because
Plaintiff failed to demonstrate that he violated her First Amendment rights. (Doc. 69 at
7). Specifically, Defendant Pyle argues that his only involvement in Plaintiff’s termination
was to confirm the recommendation of Ms. Sandoval to terminate Plaintiff. (Doc. 69 at
8). Defendant Pyle further states that he is entitled to qualified immunity on all of
Plaintiff’s claims. The Court will consider each of Plaintiff’s arguments separately.
Free Speech Rights
Plaintiff argues that Defendant Pyle violated her right to free speech by firing her
for speaking out about the union. Defendant Pyle contends that he did not fire Plaintiff
based on her speech about the union, but for violating the sexual harassment policy.
The State has significantly different interests in regulating the speech of its
employees than in regulating the speech of the citizenry generally. See Pickering v. Bd.
of Educ., 391 U.S. 563, 568 (1968). As a government employee, a “citizen by necessity
must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S.
410, 418 (2006). However, the First Amendment limits a public employer’s ability “to
leverage the employment relationship to restrict, incidentally or intentionally, the liberties
employees enjoy in their capacities as private citizens.” Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (internal quotation marks omitted).
When a government employee speaks on a matter of public concern, her employer may
only restrict her speech because it is necessary for the efficient and effective delivery of
The Court must conduct a five-step inquiry in considering a plaintiff’s freedom-ofspeech retaliation claim, known as the “Garcetti/Pickering” analysis. Id. First, the Court
asks whether the speech was made “pursuant to [the employee’s] official duties.” Id.
(quoting Garcetti, 547 U.S. at 421 (internal quotation marks omitted)). If so, then the
speech is not protected by the First Amendment because the restriction properly
“reflects the exercise of employer control over what the employer itself has
commissioned or created.” Id. (quoting Garcetti, 547 U.S. at 422) (internal quotation
If the employee’s speech is outside of her official duties, then the Court should
next determine whether the subject of the speech is a matter of public concern. Id. at
1202-03 (citing Green v. Bd. Of Cnty. Commr’s, 472 F.3d 794, 798 (10th Cir. 2007). If it
is not a matter of public concern then it is not constitutionally-protected speech. Id. at
1203. When an employee speaks upon matters of personal interest, that speech is
unprotected. Schrier v. Univ. of Colo., 427 F.3d 1253, 1263 (10th Cir. 2005). However, if
the speech is a matter of public concern, the Court should proceed to step three and
decide “whether the employee’s interest in commenting on the issue outweighs those of
the state as the employer.” Brammer-Hoelter, 492 F.3d at 1203 (quoting Casey v. W.
Las Vegas Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007) (internal quotation marks
omitted)). While the first three steps in the Garcetti/Pickering analysis are questions of
law for the Court to decide, id., they may turn on resolution of a factual dispute by the
jury. Deutsch v. Jordan, 618 F.3d 1093, 1098 (10th Cir. 2010).
If the employee’s interest outweighs the employer’s, then the Court proceeds to
step four. At step four, “the employee must establish that [her] speech was a
‘substantial factor or motivating factor in a detrimental employment decision.’” BrammerHoelter, 492 F.3d at 1203 (quoting Lybrook v. Members of Farmington Mun. Schs. Bd.
of Educ., 232 F.3d 1334, 1338 (10th Cir. 2000)). If the employee establishes the speech
was a substantial or motivating factor, at step five “the employer may demonstrate that it
would have taken the same action against the employee even in the absence of the
protected speech.” Id. (internal quotation marks omitted). The final two steps of the
inquiry should ordinarily be decided by a trier of fact. Id. (citing Cragg v. City of
Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998)).
Defendant Pyle argues that the third, fourth, and fifth steps of this analysis are in
his favor. (Doc. 69 at 10). In regard to the third step, Defendant Pyle argues that “the
employer’s interests in preventing sexual harassment and graphic depictions of staff
and sexual harassment trainers outweighs any potential infringement on” Plaintiff’s free
speech rights. (Doc. 69 at 10). Defendant Pyle further maintains that Plaintiff cannot
show that her protected speech was a substantial factor in Defendant Pyle accepting
Ms. Sandoval’s recommendation to terminate her employment, as required by the fourth
element of the analysis. (Doc. 69 at 10). Finally, Defendant Pyle concludes that Plaintiff
cannot meet the fifth element because she would have been terminated regardless of
her union activities because she violated the sexual harassment policy. (Doc. 69 at 10).
Defendant Pyle seems to argue that Plaintiff is claiming her drawings of male
genitalia and her union activities are protected speech. (See Doc. 69 at 10-11). In her
response, Plaintiff does not identify the speech she claims is protected. (See Doc. 77 at
15-18). Plaintiff simply states that she was retaliated against for her union activities.
(Doc. 77 at 15). The Court cannot, however, determine whether Plaintiff’s free speech
rights were violated in the abstract, but must “first ‘identify the speech which resulted in
the alleged retaliation.’” Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22,
473 F.3d 1271, 1277 (10th Cir. 2007).
Based on the filings and the evidence the parties submitted, the Court has
identified two instances of speech: (1) the letter given to Defendant Pyle and statements
made at the meeting with Defendant Pyle on December 3, 2012; and (2) the text
message sent by Plaintiff to her fellow Detention Center officers on December 6, 2012.
The Court will address each instance separately.
a. December 3, 2012 Meeting
On December 3, 2012, Plaintiff and Officer Garcia met with Defendant Pyle
regarding collective bargaining and the conditions at the Detention Center. (See Doc.
77-2). At the meeting Plaintiff presented Defendant Pyle with a letter signed by
Detention Center employees regarding work conditions. (See Doc. 77-4). Specifically,
the letter documented “the abhorrent and dangerous conditions for inmates[ ] and
employees[ ] and the misuse of public funds.” (Doc. 77 at 9 ¶ C).
To determine if this speech is protected, the Court must first determine whether
Plaintiff spoke pursuant to her official duties. “[S]peech relating to tasks within an
employees’s uncontested employment responsibilities is not protected from regulation.”
Brammer-Hoelter, 492 F.3d at 1203 (citing Casey, 473 F.3d at 1329). “The ultimate
question is whether the employee speaks as a citizen or instead as a government
employee – an individual acting ‘in his or her professional capacity.’” Id. (quoting
Garcetti, 547 U.S. at 422). In speaking to Defendant Pyle about forming a union and
conditions at the Detention Center, Plaintiff was not “performing an official duty” and the
speech did not “contribute[ ] to or facilitate[ ] [her] performance of [her] official duty;”
therefore, Plaintiff did not speak pursuant to her official duties and the Court will move to
the second step of the analysis. Id. (citing Williams v. Dallas Indep. Sch. Dist., 480 F.3d
689, 693 (5th Cir. 2007)).
At the second step, the Court must determine whether the subject matter of the
speech is a matter of public concern. “Matters of public concern are ‘those of interest to
the community, whether for social, political, or other reasons.’” Id. at 1205 (quoting
Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000)). The Court “may
consider ‘the motive of the speaker and whether the speech is calculated to disclose
misconduct or merely deals with personal disputes and grievances unrelated to the
public’s interest.’” Id. Speech is not a matter of public concern just because it is union
related. Torres v. Pueblo Bd. of Cty. Comm’rs, No. 98-1412, 229 F.3d 1165, at *4 (10th
Cir. Sept. 19, 2000) (unpublished) (citing Boals v. Gray, 775 F.3d 686, 693 (6th Cir.
The chief complaints in both the letter presented to Defendant Pyle and at the
meeting with Defendant Pyle were that the facility is understaffed and the officers are
underpaid. (See Docs. 77-2, 77-4). These are not matters of public concern because
they are “internal in scope and personal in nature.” Brammer-Hoelter, 492 F.3d at 1206
(quoting Bunger v. Univ. of Okla., 95 F.3d 987, 992 (10th Cir. 1996) (internal quotation
marks omitted) (finding that staffing levels and salaries are matters of personal concern;
and therefore, not protected speech)). Plaintiff’s “concerns and union-related speech
pertained specifically to the management and working conditions” of the Detention
Center and the “union organizing effort was motivated by” the Detention Center officers’
desire to change the working conditions. Torres, 229 F.3d at *5. Plaintiff did not intend
to “bring to light actual or potential wrongdoing or [a] breach of public trust by a public
official or to disclose any evidence of corruption, impropriety, or other malfeasance
within a government entity.” Denton v. Yancey, No. 15-5114, 2016 WL 5720905, at *3
(10th Cir. Oct. 3, 2016) (unpublished) (quoting Eisenhour v. Weber Cty., 744 F.3d 1220,
1228 (10th Cir. 2014)) (internal quotation marks removed). As such, the speech is not
However, based on the letter and the transcript from the December 3, 2012
meeting, it is clear that Plaintiff was also concerned about the conditions of the facility
and the safety of staff and inmates. (See Docs. 77-4, 77-7). Unlike Plaintiff’s complaints
about staffing levels and salary, which were personal, complaints about conditions,
safety, and the misuse of public funds are matters of public concern. Examining the
evidence in the light most favorable to Plaintiff, this speech could be “calculated to
disclose misconduct” or “to bring to light actual or potential wrongdoing.” Denton, 2016
WL 5720905, at *3. Therefore, the Court will continue through the analysis with regard
to Plaintiff’s speech about the conditions of the facility and the safety of staff and
At the third step, the Court must weigh Plaintiff’s interest in speaking against her
employer’s interest in regulating her speech. “The only public employer interest that
outweighs the employee’s free speech interest is ‘avoiding direct disruption, by the
speech itself, of the public employer’s internal operations and employment
relationships.’” Trant v. Okla., 754 F.3d 1158, 1166 (10th Cir. 2014) (quoting BrammerHoelter, 492 F.3d at 1207) (emphasis in original). Important factors for the Court to
consider are “whether the statement impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working relationships for which personal
loyalty and confidence are necessary, or impedes the performance of the speaker’s
duties or interferes with the regular operation of the enterprise.” Id. (quoting Rankin v.
McPherson, 483 U.S. 378, 388 (1987)) (internal quotation marks omitted). Defendant
Pyle does not argue, and there is no evidence in the record, that Plaintiff’s speech on
December 3, 2012 was disruptive, thus the Court finds that Plaintiff’s interest in
speaking outweighs Defendant Pyle’s interest.
Prior to proceeding to step four, the Court will first determine what adverse
employment actions Defendant Pyle took against Plaintiff. Plaintiff complains that
Defendant Pyle retaliated against her and terminated her employment. Specifically,
Plaintiff argues that Defendant Pyle stripped her of her seniority, moved her to the night
shift, took her off the inmate extraction unit, took away her job as property manager,
removed her training officer status and ostracized her. (Doc. 77 at 11 ¶ O). An adverse
action is one that “would be considered by a reasonable employee to be material and
adverse, thereby dissuading them from making a complaint.” Somoza v. Univ. of
Denver, 513 F.3d 1206 (10th Cir. 2008). Even after the alleged retaliation by Defendant
Pyle, Plaintiff states that she continued her union activities until she was fired. (Doc. 77
at 13 ¶ U). As such, the Court cannot say that the actions, not including termination,
would deter a reasonable employee. See Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon
Cty., 587 F.3d 1223, 1242 (10th Cir. 2009) (citing Somoza, 513 F.3d at 1214) (“[T]he
fact that an employee continues to be undeterred in his or her pursuit of a remedy, as
here was the case, may shed light as to whether the actions are sufficiently material and
adverse to be actionable.”)). Therefore, the Court will only consider the termination as
an adverse employment action.
Plaintiff must show that her speech was a substantial or motivating factor for her
termination at step four of the analysis. Plaintiff claims that after speaking about
conditions in the jail and forming the union, Defendant Pyle retaliated against her and
eventually fired her. Plaintiff claims that Defendant Pyle retaliated against her for her
speech by stripping her of her seniority, moving her to the night shift, taking her off the
inmate extraction unit, taking away her job as property manager, removing her training
officer status and ostracizing her. (Doc. 77 at 11 ¶ O). The evidence shows that
Defendant Pyle knew about Plaintiff’s speech, as she met with him personally on
December 3, 2012, and Defendant Pyle sent emails to different staff regarding Plaintiff’s
December 6, 2012 text message to other Detention Center employees. (See Docs. 772, 77-4, 77-5). Evidence submitted by Plaintiff shows that Defendant Pyle did not
believe that a union was in the best interest of the Detention Center employees. (Doc.
77-12 at 2). Plaintiff also presented emails sent by Defendant Pyle in which Defendant
Pyle appears frustrated that Plaintiff was never disciplined for sending the December 6,
2012 text message. (See Doc. 77-5).
By contrast, “[a]n inference of retaliatory motive may be undermined by ‘a long
delay between the employee’s speech and [the] challenged conduct’ or ‘evidence of
intervening events.’” Deschenie, 473 F.3d at 1278 (quoting Maestas v. Segura, 416
F.3d 1182, 1188 (10th Cir. 2005)). Here, approximately a year passed between the
union associations that Defendant Pyle clearly knew about and Plaintiff’s termination.
Although Plaintiff claims that she continued to associate with the union, there is no
evidence in the record that Defendant Pyle knew about any further association. In
addition, Plaintiff was found to have violated the Curry County sexual harassment
policy. This is a fact confirmed by several individuals in addition to Defendant Pyle.
Because Ms. Sandoval made the recommendation and two different arbitrators
confirmed Defendant Pyle’s decision, Plaintiff would need to establish that these other
individuals were also retaliating against her, which she has not done. See Couch, 587
F.3d at 1241 (“[B]ecause the decision-maker was a committee, [Plaintiff] would need to
establish that a majority of the members . . . were biased or that a biased member was
a substantial influence over the committee’s ultimate action in order to satisfy his burden
to establish causation.”). The Court finds that Plaintiff cannot show that her union
activity was a substantial factor in the termination of her employment; consequently the
Court will grant Defendant Pyle summary judgment.
The Court would come to the same conclusion at the fifth step of the analysis. At
the fifth step, Defendant Pyle must show that he would have reached the decision to
terminate Plaintiff in the absence of her union activity. Hook, 394 Fed. Appx. at 534. The
fifth step is to control for the fact that
a ‘rule of causation which focuses solely on whether protected conduct
played a part’ in an adverse employment decision ‘could place an
employee in a better position as a result of the exercise of constitutionally
protected conduct that he would have occupied had he done nothing.’
Trant, 754 F.3d at 1167 (quoting Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 285
(1977)) (citing Hartman v. Moore, 547 U.S. 250, 260 (2006) (“If there is a finding that
retaliation was not the but-for cause of the discharge, the claim fails for lack of causal
connection between unconstitutional move and resulting harm, despite proof of some
retaliatory animus in the official’s mind.”)). Thus, at step five, summary judgment is
appropriate when “any reasonable jury would have found that the plaintiff would have
been terminated even absent any desire on the Defendants’ part to punish [her] in
retaliation for [her] allegedly protected speech.” Id. (quoting Anemone v. Metro. Transp.
Autho., 629 F.3d 97, 117 (2d Cir. 2011)).
Plaintiff was told that her employment was terminated based on the two
incidences in 2013. In terminating Plaintiff, Curry County followed its disciplinary
procedures. Ms. Schwebke investigated the incidences, Ms. Sandoval recommended
that Plaintiff’s employment be terminated, Defendant Pyle conducted a predetermination hearing, Plaintiff appealed Defendant Pyle’s decision, and Defendant
Pyle’s decision was upheld at two post-termination hearings.
Plaintiff argues that her actions did not amount to sexual harassment because no
one was offended and the conversations did not interfere with anyone’s work, and
therefore were only pretext. (See Doc. 77). However, Plaintiff’s argument is not
compelling. Plaintiff’s contention that her conversations and actions did not amount to
sexual harassment does not undermine the decisions of Ms. Sandoval or the
adjudicators at the pre-determination and post-termination hearings. According to the
Curry County policy, “[i]f the County determines that harassment has occurred . . . it will
take appropriate measure to correct the problem,” and “[s]erious cases of harassment
constitute cause for termination.” (Doc. 77-21 at 3). It was entirely appropriate for these
individuals to take action against Plaintiff once they determined that she violated the
sexual harassment policy. Therefore, “[b]ecause ‘the lawful reason alone would have
sufficed to justify the firing,’” Plaintiff cannot succeed on her claim. Trant, 754 F.3d at
1168 (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 359 (1995)).
Finally, Plaintiff maintains that the fourth and fifth steps in the analysis should be
decided by the fact finder. (Doc. 77 17-18) (citing Deutsch, 618 F.3d 1098). However, in
some cases, as here, “there may be no genuine issue of fact for the jury to resolve on
the last two” steps. Deutsch, 618 F.3d 1098. Therefore, the Court will dismiss Plaintiff’s
free speech claim in regard to the December 3, 2012 meeting.
b. December 6, 2012 Text Message
The Court identified the second instance of Plaintiff’s speech as the December 6,
2012, Plaintiff sent a text message to Detention Center employees. Because Plaintiff
claims that Defendant Pyle violated her right to free speech based on this text message,
the Court will use the five step “Garcetti/Pickering” analysis.
The text message stated:
Hey everyone, it’s Amanda just informing everyone about the union. If you
do not want to receive information please inform me and I will [t]ake you
off our texting list. Lance Pyle sent out a packet informing that he wants to
meet with us individually and is trying to scare everyone. Please be aware
this is harassment and you do not have to go see him. He is trying to
separate us and keep us from forming a union. This is intimidation and
also illegal. We should be getting a grandfather union coming down next
week to help begin our paperwork. Remember that the commission or
Pyle cannot do anything to fire us or make us go on leave, that would [be]
retaliation and illegal. We have everyone’s support in our admin. We will
have more info in our meeting this Monday. Any info please contact me or
(Doc. 77-5 at 7).
Plaintiff clearly does not speak pursuant to her official duties in this text, so the
Court will move to step two of the analysis. Again, focusing on “the motive of the
speaker and whether the speech is calculated to disclose misconduct or merely deals
with personal disputes and grievances unrelated to the public’s interest,” the Court finds
this speech to not be a matter of public concern. Denton, 2016 WL 520905, at *3. The
purpose of Plaintiff’s text message was to inform Detention Center employees about a
union that was being formed to deal with their personal grievances at the Detention
Center. Because this speech is not a matter of public concern, the Court finds that it is
Right of Association
Plaintiff claims that Defendant Pyle violated her right of association by retaliating
against her for associating with the union. The analysis for a freedom of association
claim is the same as the analysis for free speech claims, except in the case of unions.
Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 (10th Cir. 2006). “In the specific
context of public employee labor unions, [the Tenth Circuit] has rejected the
requirement that a worker demonstrate that [her] association with the union be a matter
of public concern.” Id. Therefore, the Court will not analyze the second step of the
“Garcetti/Pickering” analysis. Additionally, the Tenth Circuit found that courts do not
need to balance the government’s interest against the employee’s interest in union
association when a collective bargaining agreement has been signed. Id. at 1139.
Here, there is no evidence that a collective bargaining agreement was signed.
Plaintiff specifically states that Defendant Pyle took adverse action against her in
retaliation for her association with the Detention Center union and her role as one of the
union’s representatives. (Doc. 1 ¶ 40). Defendant argues that because the undisputed
facts show that Defendant Pyle’s decision to affirm the termination of Plaintiff was not
based on Plaintiff’s association with the union, the Court should grant summary
judgment in his favor. (Doc. 69 at 11).
Because Defendant Pyle only argues that Plaintiff cannot meet the fourth and
fifth elements of the analysis, the Court will assume without finding that Plaintiff met the
first and third steps of the analysis. The Court will not however, proceed through the
whole analysis, as Plaintiff’s association claims are based on the same facts as her
speech claims. Because the analysis is the same, and the Court already found that
Plaintiff’s claims fail at both steps four and five for the speech claims, the Court also
finds that Plaintiff’s association claims fail at steps four and five.
Right to Petition for Redress of Grievances
Finally Plaintiff alleges that Defendant violated her right to petition for redress of
grievances by retaliating against her for sending emails about the union. The test for
whether an employee’s right to petition for redress of grievances has been violated is
the same analysis as for a free speech claim. Martin v. City of Del City, 179 F.3d 882,
886 (10th Cir. 1999). In her Complaint, Plaintiff contends that in her capacity as a union
organizer, she sent emails to employees of the Detention Center that were matters of
public concern and she was retaliated against based on these emails. (Doc. 1 ¶¶ 4648). Specifically, Plaintiff states that she complained about the unsafe and unhealthy
conditions at the Detention Center for employees, detainees, and the public. (Doc. 1 ¶
The only “petition” in the record is the letter to Defendant Pyle that was discussed
at the December 3, 2012 meeting. The Court already found that Plaintiff’s claim based
on this letter fails at steps four and five of the analysis. Therefore, the Court finds that
Plaintiff’s claim that she was retaliated against for exercising her right to petition for
redress of grievances also fails.
For the foregoing reasons, the Court finds that some of Defendant Pyle’s
statements in his affidavit should be struck. Additionally, Defendant has shown that as a
matter of law, he is entitled to summary judgment on all counts because there are no
genuine disputes as to issues of material fact.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike Summary
Judgment Affidavit of Lance Pyle in part [Doc. 69], (Doc. 78), be GRANTED IN PART
AND DENIED IN PART;
IT IS FURTHER ORDERED that Plaintiff’s WPA claim, claim IV, against
Defendant Pyle is DISMISSED WITH PREJUDICE;
FINALLY, IT IS ORDERED that Defendant Lance Pyle’s Motion for Summary
Judgment and Qualified Immunity, (Doc. 69), be GRANTED and that Plaintiff’s claims
against Defendant Pyle be DISMISSED WITH PREJUDICE.
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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