Ellis et al v. Hobbs Police Department et al
MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. Defendants Motion for Summary Judgment 185 is GRANTED IN PART and DENIED IN PART. Plaintiffs First Amendment Association claim is dismissed, but the Court does not rule on the viability of any First Amendment Speech claim (Count II). Finally, Plaintiffs claims under Count III are dismissed. (ve)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Case No. 2:17-cv-01011 KWR/GBW
HOBBS POLICE DEPARTMENT,
JASON HERRERA, CHAD WRIGHT,
SHANE BLEVINS, JEREMY KIRK,
MATTHEW BURLESON, JIMMY GRIMES,
CHRISTOPHER MCCALL, J.J. MURPHY,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Defendants’ Motion for Summary Judgment
on Plaintiff Artis’ Claims, filed on November 21, 2019 (Doc. 185). Having reviewed the parties’
pleadings and the applicable law, the Court finds that Defendants’ motion is well-taken in part
and, therefore, is GRANTED IN PART and DENIED IN PART.
This case arises out of Plaintiffs’ opposition to racial discrimination within the Hobbs
Police Department. Plaintiff Artis, a white male, alleges he was retaliated against for (1) opposing
HPD’s racial discrimination against Plaintiff Robinson and (2) opposing alleged discriminatory
police practices against African Americans. Defendants include Hobbs Police Department, Chief
McCall, and several supervisors and officers.
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Plaintiff filed this case under 42 U.S.C. § 1981 and 1983, and the New Mexico
Whistleblower Protection Act. Plaintiff’s complaint asserts the following claims:
Count I: New Mexico Whistleblower Protection Act
Count II: First Amendment Retaliation under § 1983; and
Count III: Racial Discrimination pursuant to § 1981.
Defendants moved for summary judgment on all claims asserted by Plaintiff Artis. Doc.
Defendants did not raise qualified immunity. Therefore, the Court will analyze the motion
under normal summary judgment principles. A motion for summary judgment is appropriate when
there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “[T]he
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). As the Tenth
Circuit has explained, “mere assertions and conjecture are not enough to survive summary
judgment.” York v. AT&T, 95 F.3d 948, 955 (10th Cir. 1996). To avoid summary judgment, a
party “must produce specific facts showing that there remains a genuine issue for trial and evidence
significantly probative as to any [material] fact claimed to be disputed.” Branson v. Price River
Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988) (quotation marks and citations omitted).
“A fact is material if, under the governing law, it could have an effect on the outcome of
the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the
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nonmoving party on the evidence presented.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306
(10th Cir. 2017) (quotation marks and citation omitted).
The Court takes the facts in the light most favorable to Plaintiff. Although Defendants ably
disputes Plaintiff’s facts, the Court finds the following facts well-supported in the record. Factual
assertions not specifically controverted or disputed are deemed admitted. To the extent a party
does not cite to the record to support a fact or dispute a fact, the Court disregards that factual
assertion or dispute. Fed. R. Civ. P. 56(c)(1); D.N.M.LR-Civ. 56-1(b) (“All material facts set
forth…will be deemed undisputed unless specifically controverted.”)
In 2013, Plaintiff Artis and Plaintiff Robinson became friends while they both served in
the United States military at Fort Campbell, Kentucky. They both took jobs with the Hobbs Police
Department (“HPD”). Plaintiff Artis was employed with HPD from about February 22 to May 27,
Plaintiff does not recall that HPD trained him that racial discrimination or harassment was
improper or that there was any written reporting mechanism. He was trained that complaints were
handled in-house and informally and advised if he had problems to bring it up with his Field
Training Officer (“FTO”).
Plaintiff Artis told FTO Arvin Sanjideh that he was being mocked by his shift and that he
had witnessed Plaintiff Robinson being harassed by other officers. Sgt. Barrientes was present
while officers mocked and ridiculed Plaintiff Artis for his relationship with Plaintiff Robinson,
who is African American.
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Specifically, Plaintiff Robinson had left HPD for the Lea County Sherriff’s Office. Both
plaintiffs had objected to alleged discriminatory policing by HPD. Sgt. Barrientes and several
other officers would talk about Plaintiff Robinson and tell Plaintiff Artis that he did not need to be
like him on patrol and that he needed to do what he was told. Plaintiff Artis was a target of distain
because of his friendship with Plaintiff Robinson. One day in Sgt. Barrientes’ office, several
officers asked whether he intended to leave to go to Lea County Sheriff Office like Plaintiff
Robinson. Officer Kirk told Plaintiff that his military service “doesn’t mean jack.” Officer Grimes
said something similar.
Plaintiff reported improper or unlawful activities.
Plaintiff asserts he observed apparent unlawful or improper activity in HPD, including
racially discriminatory policing.
Plaintiff reported to FTO Sanjideh that he had witnessed
Defendant Kirk use his K9 to coerce an African American driver into giving consent to search his
car for rugs. Plaintiff believed that Kirk had coerced a motorist into a search of his car and his
actions constituted an illegal search. FTO Sanjideh told Plaintiff Artis that he would speak with
Officer Kirk and his Sergeant about the incident. Plaintiff was not interviewed about this incident
with internal affairs and believes Officer Kirk was not held accountable.
In another instance, Plaintiff was on patrol with FTO Sanjideh. They made a vehicle
welfare stop of two African American males in a predominantly African American neighborhood.
No crime had occurred, and they were sitting in their car outside their home. Plaintiff objected to
the need to make a second contact and arrest. Plaintiff raised his concern to FTO Sanjideh that the
second approach was unnecessary and it was unconstitutional to go onto private property for no
reason. They arrested one of the men, who was placed in the patrol unit without a seat belt.
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Plaintiff asserts this caused the arrestee to be thrown around the backseat as they quickly responded
to another call.
Based on his personal observation as an officer and through radio traffic and CAD logs,
Plaintiff believed his FTO would not have made the second approach if they had been white males.
Plaintiff Artis had seen and heard over the radio a pattern where HPD officers focus their patrols
on African American communities to make pedestrian in the roadway stops. He observed that the
African American community was targeted by patrol officers for “stats” on stops. Plaintiff also
observed that Plaintiff Robinson was disciplined more harshly than other officers and spoken to in
an abusive and unprofessional manner.
Plaintiff shared his concerns about HPD’s discriminatory policing with Plaintiff Robinson
and Plaintiff Ellis, who shared their collective concerns with NAACP representative Joseph
FTO Sanjideh, Plaintiff’s supervisor, called him a pedophile. Plaintiff asserts it was based
on the appearance of his African American fiancée.
Plaintiff asserts he was belittled and mocked for wanting to see change in HPD. He asserts
that this environment meant he could not trust his FTOs or supervisors. Plaintiff believes that
informal reporting through one’s direct supervisor created a hostile work environment for those
Plaintiff applied for a position with the Lea County Sherriff’s Office without telling anyone
at HPD. He was hired for the position. On September 5, 2016, Plaintiff Artis was almost arrested
following an argument with his fiancée. Although the New Mexico State Police had already
arrived, HPD Officer Grimes showed up at the scene. Officer Grimes attempted to get a warrant
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for Plaintiff’s arrest, even though the New Mexico State Police were already investigating. Officer
Grimes would report to other trainees that Plaintiff Artis is “a piece of shit, he couldn’t cut it as a
real cop; he doesn’t know what he’s doing; he’s a bad influence.” Ex. 23 at 228.
Plaintiff applied to the Sandoval County Sheriff’s Office and the Santa Fe County Sheriff’s
Office. Plaintiff appears to assert he was given a negative reference by HPD. Ex. 24 at ¶ 43-52.
He was also denied a position by HPD on the on a joint task force, even though his employer, the
Lea County Sheriff’s Office, supported him. Id.
Defendants argue that Plaintiff Artis’ affidavit (Ex. 24) should be disregarded because it
conflicts with his deposition testimony and creates sham issues of fact. “[A]n affidavit may not
be disregarded [solely] because it conflicts with the affiant's prior sworn statements. In assessing
a conflict under these circumstances, however, courts will disregard a contrary affidavit when they
conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d
1230, 1237 (10th Cir. 1986) (citation omitted). “[C]ases in which an affidavit raises but a sham
issue [are] unusual.” Law Co. v. Mohawk Const. & Supply Co., 577 F.3d 1164, 1169 (10th Cir.
In determining whether an affidavit creates a sham fact issue, the Court considers whether:
“(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the
pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly
discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts
to explain.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001)
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The affidavit and testimony are consistent that directly after the alleged discriminatory
incidents, Plaintiff only reported to his direct supervisor, FTO Sanjideh. In the affidavit, Plaintiff
also asserted that he reported the alleged discrimination to Sgt. Barrientes in April or May 2016.
Ex. 24 at ¶ 17. The testimony omits whether or not Plaintiff reported concerns in April or May
of 2016 of discriminatory treatment within the department and discriminatory policing. Based on
the record before the Court, it appears that there is nothing directly contradictory to paragraph 17
of the affidavit in Plaintiff’s testimony.
Even if the testimony directly conflicted with the affidavit, the Court is not inclined to find
a sham fact issue, given that the majority of the deposition was conducted by Defense counsel.
The Court notes that it does not have the full transcript of the deposition. It is unclear whether
Plaintiff’s counsel examined Plaintiff on this matter. Rather, the Court finds that the affidavit
clarifies confusion in the testimony or addresses matters that were unaddressed by Defense
Genuine Dispute of Material Fact Exists as to Plaintiff’s New Mexico Whistleblower
Protection Act Claim (Count I).
Plaintiff asserts a New Mexico Whistleblower Protection claim solely against Defendant
HPD. Defendant HPD argue that Plaintiff’s WPA claim fails because he (1) cannot make out a
prima facie case of WPA retaliation and (2) cannot show constructive discharge. As to the prima
facie case, Defendant specifically argues that Plaintiff cannot show (1) an adverse employment
action or (2) a causal relationship between his protected reporting and any adverse employment
The New Mexico Whistleblower Protection Act protects public employees who engage in
certain protected activity. N.M. Stat. Ann. § 10-16C-1 et al. As relevant here, the WPA protects
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an employee who (1) communicates to the public employer or third party about an action that the
public employee believes in good faith constitute san unlawful or improper act; and (2) objects to
or refuses to participate in an activity, policy, or practice e that constitutes an unlawful or improper
act. N.M. Stat. Ann. § 10-16C-3(A) and (C).
To state a prima facie case under the NMWPA, a plaintiff must establish “three elements:
(i) the employee engaged in 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.” Walton v. N.M. State Land Office, 113 F. Supp. 3d 1178, 1199 (D.N.M.
2015) (citing N.M. Stat. Ann. § 10-16C-3) (subsequent citation omitted), quoted in Hartigan v.
Cty. of Guadalupe, No. CV 17-0537 RB/GJF, 2017 WL 4773268, at *4 (D.N.M. Oct. 20, 2017).
Initially, the parties dispute whether (1) McDonnell-Douglas framework applies, and
whether (2) Plaintiff must show constructive discharge. First, the Court need not decide whether
McDonnell-Douglas applies, because Defendant HPD only challenged whether Plaintiff could
make a prima facie showing.
Second, as explained below, the statute defines a retaliatory action as “any discriminatory
or adverse employment action against a public employee in the terms and conditions of public
employment.” NMSA § 10-16C-2(D). This language does not require Plaintiff to show a
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). “The WPA was modeled after its
federal counterpart.” Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, ¶ 19, 357 P.3d
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453 (citing 5 U.S.C. § 2302(b)(8) (2013)), quoted in Kakuska v. Roswell Indep. Sch. Dist., 2019
WL 2103358, at *2 (N.M. Ct. App. Apr. 16, 2019).
The New Mexico WPA was enacted in 2010, and no New Mexico Supreme Court case
answers the questions presented. “When New Mexico cases do not directly answer the question
presented, we look for guidance in analogous law in other states or the federal system.” Wills v.
Bd. of Regents of Univ. of New Mexico, 2015-NMCA-105, ¶ 19, 357 P.3d 453, 457, CIT
Grp./Equip. Fin., Inc. v. Horizon Potash Corp., 1994–NMCA–116, ¶ 6, 118 N.M. 665, 884 P.2d
821. The WPA was modeled after its federal counterpart. Willis, 357 P.3d at 457. “Accordingly,
cases interpreting the federal whistleblower law have persuasive value in considering the
legislative intent behind the WPA.” Id., citing Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002–
NMSC–004, ¶ 8, 131 N.M. 607, 41 P.3d 333 (recognizing that, when New Mexico statutes are
similar to their federal counterparts, appellate courts may rely on federal jurisprudence in
construing legislative intent). Therefore, the Court looks to federal retaliation cases interpreting
the phrase “adverse employment action.”
Defendant HPD does not dispute, as to this motion only, that Plaintiff engaged in a
protected activity. Doc. 185 at 6. However, Defendant argues in its reply that Plaintiff testified
he never reported to Sgt. Barrientes his concerns about racial discrimination. In an affidavit,
Defendant does not cite to any case providing that reporting to a Sergeant instead of one’s direct
superior is required to state a whistleblowing claim. Rather, Plaintiff testified that he was
instructed to report to his direct superior, FTO Sanjideh.
The Court concludes that the record shows that Plaintiff reported to his direct superior,
FTO Sanjideh, and to Sgt. Barrientes. Plaintiff also stated he and Plaintiff Robinson reported the
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alleged discrimination to a third party, Joe Cotton at the NAACP. Ex. 24 at ¶ 21. This is a
protected activity under NMSA § 10-16C-3(A). Moreover, the record reflected that actions were
taken against him because he refused to participate in unlawful or improper acts. Refusal to
participate in unlawful or improper acts constitutes protected conduct. NMSA § 10-16C-3(C).
Adverse Employment Action and Causality.
Defendant HPD argues that Plaintiff failed to show an adverse employment action or a
causal connection with Plaintiff’s protected conduct. Defendant specifically argues that Plaintiff
failed to show he was constructively discharged. As Plaintiff argues, constructive discharge is not
required under the New Mexico WPA.
Rather, under the WPA, retaliatory action includes “taking any discriminatory or adverse
employment action against a public employee in the terms and conditions of public employment.”
NMSA 10-16C-2(D). The Court may look to federal retaliation cases interpreting that phrase
“adverse employment action.” The courts “liberally define[ ] the phrase adverse employment
action” and do not limit such actions to “monetary losses in the form of wages or benefits.”
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (citation and quotation marks
omitted). The Court may consider acts that carry “a significant risk of humiliation, damage to
reputation, and a concomitant harm to future employment prospects.” Berry v. Stevinson
Chevrolet, 74 F.3d 980, 986 (10th Cir.1996) (holding that the filing of false criminal charges
against former employee constituted an adverse employment action because of its potential to harm
future employment prospects); Annett v. Univ. of Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004).
A strong indicator that a challenged employment action is adverse “is that the action causes harm
to future employment prospects.” Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004), quoted
in Braxton v. Nortek Air Sols., LLC, 769 F. App'x 600, 605 (10th Cir. 2019). “Coworker hostility
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or retaliatory harassment constitutes an adverse employment action only if it is sufficiently
severe.” Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1136–37 (10th Cir. 2005).
Plaintiff was harassed and his employment threatened, either by his superiors or by his
coworkers in the presence of his superiors. While employed with HPD, Plaintiff cites to the
following incidents that created adverse employment action: (1) Officers Kirk and Grimes
retaliated or harassed him; (2) he felt secluded from the rest of his shift, and (3) his police reports
were under more scrutiny. Specifically, Plaintiff asserts that after he made a protected report, Sgt.
Barrientes brought him and his shift into her office, and he was asked whether he was going to
leave the department like Plaintiff Robinson. He was told not to act like Plaintiff Robinson in his
policing practices and to do what he was told. Given that Plaintiff had reported to FTO Sanjideh
and Barrientes his concerns, a reasonable jury could conclude that Sgt. Barrientes allowed his shift
to threaten his job and tell him to stop opposing discriminatory practices. Elsewhere in the
response, Plaintiff notes that (1) FTO Sanjideh called him a pedophile and (2) members of his shift
disrespected his military service. Taken together, a reasonable jury could conclude that Plaintiff’s
reputation was damaged and his employment was threatened because he reported to FTO Sanjideh
or Sgt. Barrientes his concerns about discriminatory police practices and harassment in the
department. A reasonable jury could conclude that Defendant HPD took an adverse employment
action against Plaintiff because of his protected conduct.
More importantly, however, Plaintiff’s future employment prospects were clearly damaged
after he left HPD. Tenth Circuit law is clear that an employer may not retaliate against former
employees by damaging future employment prospects or providing a negative reference. Berry v.
Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (adverse employment action where
criminal charges filed against former employee even after employee had been terminated), cited
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in Hillig v. Rumsfeld, 381 F.3d 1028, 1032 (10th Cir. 2004). A retaliation statute such as the
NMWPA would lack any teeth if its reach ended once the employment relationship ended.
Here, Plaintiff asserted facts showing that HPD or Chief McCall (1) denied him a position
on a joint task force and (2) provided negative references that caused him to lose two separate
positions with Sandoval County Sherriff’s Office and Santa Fe County Sheriff’s Office. In
contrast, Plaintiff had no trouble obtaining employment when he kept his application to Lea
County Sheriff Department secret from HPD. Ex. 24 at ¶¶ 43-52.1 A reasonable jury could
conclude that Defendant HPD or Chief McCall harmed Plaintiff’s future employment prospects
and took an adverse employment action against him in retaliation for his protected conduct.
Sgt. Barrientes also instructed HPD Officer Grimes to respond to alleged domestic dispute
at Plaintiff’s home. Officer Grimes attempted to get an arrest warrant for Plaintiff, even though
HPD’s involvement was a conflict of interest and the New Mexico State Police were already
involved and handling the situation. See Ex. 23 at 216-217; 222-223.
The Court concludes that Plaintiff has created a genuine dispute of material fact as to
whether he suffered an adverse employment action because of his protected conduct.
Count II: First Amendment Retaliation Claim.
Plaintiff also asserts a First Amendment Retaliation claim under § 1983. Plaintiff asserts
that Defendants violated his freedom of association with Plaintiff Robinson, and that he was
retaliated against for supporting the rights of racial minorities, opposing racial discrimination, and
opposing racially discriminatory police practices. Defendants did not assert qualified immunity,
and the Court will not sua sponte address it.
Defendant HPD did not move to strike this portion of the affidavit or object to it.
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The parties both analyze this claim under the Worrell standard. Worrell v. Henry, 219 F.3d
1197 (10th Cir. 2000). Thus, the Court assumes they both concede that the Garcetii/Pickering test
does not apply.2
Under Worrell, the parties agree that Plaintiff must show (1) that he was engaged in a
constitutionally protected activity; (2) that Defendants caused him to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in the constitutionally protected
activity; and (3) that Defendants’ actions were motivated by Plaintiff Artis’ protected activity. Id.
Defendants challenge the first two elements, asserting that (1) Plaintiff did not engage in
constitutionally protected activity and (2) Plaintiff did not suffer an injury that would chill a person
of ordinary firmness from continuing to engage in the protected activity.
Defendants primarily argue that acquaintanceships or co-worker relationships are not
protected by the right to association under the First Amendment. The Court finds Defendants’
argument well-reasoned and well-researched. Plaintiff’s testimony does not even establish a close
friendship with Plaintiff Robinson. Rather, Plaintiff Artis and Robinson testified that they were
not especially close. Ex. A at 37:10-13; Ex. G at 37:13-16 (“we knew each other. We had some
beers outside sometimes, hung out. We were fine.”). Therefore, Plaintiff’s First Amendment claim
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes.” Garcetti v. Ceballos 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689
(2006); Salazar v. City of Commerce City, 535 F. App'x 692, 700 (10th Cir. 2013). The Garcetti/Pickering test
governs First Amendment retaliation claims filed by public employees. The test consists of five steps:
“(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter
of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a
motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same
employment decision in the absence of the protected conduct.”
Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (quoting Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th
Cir. 2009)). The first three steps concern questions of law for the courts, and the last two concern questions of fact.
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for right to association should be dismissed. See, e.g., Copp v. Unified Sch. Dist. No. 501, 882
F.2d 1547, 1551 (10th Cir. 1989) (right to associate did not cover friendship between government
employees, which was not the type of “intimate human relationships” designed to be protected by
right to associate), citing Grossart v. Dinaso, 758 F.2d 1221, 1232 n. 16 (7th Cir.1985) (right to
associate does not include emotional bonds between public employees).
However, Plaintiff asserts that this claim should not be dismissed because he was in an
interracial friendship with Robinson. Plaintiff primarily cited to Patrick v. Miller, 953 F.2d 1240,
1250 (10th Cir. 1992).
In Patrick v. Miller, the plaintiff was a Caucasian male who was terminated in retaliation
for supporting a female African-American co-worker who filed a complaint of racial
discrimination against a municipality. Id. The Tenth Circuit held that (1) speech opposing a
government employer’s racial discrimination towards a colleague was protected conduct under a
§ 1983 First Amendment Speech retaliation claim and (2) retaliatory actions against a white
employee because of his efforts to defend the rights of racial minorities may violate the employee’s
rights under § 1981. Patrick v. Miller, 953 F.2d 1240, 1250 (10th Cir. 1992).
Patrick, however, does not address a First Amendment Retaliation Freedom of Association
claim under § 1983. Plaintiff has not cited to any case protecting freedom of association claims
between interracial coworkers under § 1983. Therefore, Plaintiff has not cited to any relevant
cases to oppose dismissal of the First Amendment association claim. The association claim is
Plaintiff assert that he has standing to assert a First Amendment association claim under §
1981. Doc. 206 at 13. However, § 1981 is a substantive statute providing a cause of action for
certain racial discrimination. First Amendment and § 1981 claims are distinct substantive claims.
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However, Plaintiff’s First Amendment retaliation claim under § 1983 may be more
appropriately characterized as a speech claim. The Court notes that Plaintiff characterizes Count
II of the complaint as an association and free speech claim. Doc. 1 at ¶ 167.
Plaintiff asserted that he engaged in constitutionally protected opposition to HPD’s racially
discriminatory practices. Plaintiff’s response in opposition to dismissal focused largely focused
on the argument that he was retaliated against for opposing racial discrimination. Doc. 206 at 1314. Defendants did not address this characterization in their reply. Because it appears that Plaintiff
may have a valid free speech claim under Patrick and Defendants do not specifically seek to
dismiss the free speech claim, the Court declines to sua sponte dismiss such claim.
Moreover, the Court does not see anything in the motion or record mandating sua sponte
dismissal of the free speech claim. However, the Court will not sua sponte rule on the viability of
the free speech claim without briefing and an appropriate record by the parties.3
Count III: Section 1981 racial discrimination.
Defendants sought summary judgment as to procedural due process and equal protection
claims under § 1983. Plaintiff Artis did not respond to those arguments, therefore the Court
assumes that he does not assert § 1983 equal protection or due process claims.
Defendants also sought summary judgment as to Plaintiff Artis’ § 1981 racial
discrimination claim. Plaintiff appears to assert this claim against Chief McCall for creating a
hostile work environment.
Section 1981 provides that all persons “shall the have same right… to make and enforce
contracts… as is enjoyed by white citizens.” § 1981. It authorizes “a plaintiff to bring a claim for
For example, the parties agree the Worrell standard applies to the association claim, but it is unclear if they would
agree that standard applies to a free speech claim.
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hostile work environment based on unlawful race discrimination.” Lounds v. Lincare, Inc., 812
F.3d 1208, 1221 (10th Cir. 2015).
Under § 1981, to assert a prima facie case of racial harassment/hostile work environment,
Plaintiff must show that “under the totality of the circumstances (1) the harassment was pervasive
or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment
was racial or stemmed from racial animus.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994)
(internal citations omitted). He must demonstrate “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.” McCowan v. All Star Maint., Inc., 273 F.3d 917, 923 (10th Cir.2001) (internal
quotations and citations omitted).
“The same substantive standards apply to a hostile work environment claim regardless of
whether the plaintiff has brought it under § 1981 or Title VII.” Lounds v. Lincare, Inc., 812 F.3d
1208, 1221 (10th Cir. 2015), citing Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997).
Accordingly, the Court may look to case law interpreting Title VII claims. Id. This standard is
more difficult for a plaintiff to overcome than under the First Amendment. Couch v. Bd. of
Trustees of Mem'l Hosp. of Carbon Cty., 587 F.3d 1223, 1237 (10th Cir. 2009). To carry his
burden Plaintiff must establish the following elements:
“(1) [he] is a member of a protected group; (2) [he] was subject to unwelcome
harassment; (3) the harassment was based on [race]; and (4) [due to the
harassment's severity or pervasiveness], the harassment altered a term, condition,
or privilege of the plaintiff's employment and created an abusive working
Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015).
As noted above, Plaintiff must show that the “harassment was racial or stemmed from racial
animus.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994), quoted in Mitchell v. City & Cty.
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of Denver, 112 F. App'x 662, 671 (10th Cir. 2004). “[T]he existence of [racial] harassment must
be determined ‘in light of the record as a whole,’ and the trier of fact must examine the totality of
the circumstances, including ‘the context in which the alleged incidents occurred.’ ” McCowan v.
All Star Maint., Inc., 273 F.3d 917, 925 (10th Cir. 2001) (internal citations and quotation marks
omitted). The court considers “a variety of factors” in this holistic analysis, “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.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015).
In his response, Plaintiff asserts a number of facts relating to a hostile work environment
for African Americans – including multiple uses of racial slurs and statements about jailing African
Americans. However, Plaintiff does not explain how this created a work environment hostile to
Plaintiff based on his Caucasian race. Although the environment may have been hostile to African
Americans, the case law cited above clearly refers to a hostile work environment created through
racial discrimination or animus. Whatever adverse employment actions Plaintiff faced, it was not
based on racial discrimination or animus toward Caucasians. Payan v. United Parcel Serv., 905
F.3d 1162, 1170 (10th Cir. 2018), quoting Sandoval v. City of Boulder, 388 F.3d 1312, 1326-27
(10th Cir. 2004) (plaintiff required to “produce evidence from which a rational jury could infer
that [ ]he was targeted for harassment because of h[is] …race….”); Lounds v. Lincare, Inc., 812
F.3d 1208, 1221 (10th Cir. 2015) (reciting law discussing racial animus or racial discrimination).
Plaintiff has not cited to any case providing that a white plaintiff may state a claim under
§ 1981 for an environment hostile to African Americans. Plaintiff cites to Patrick, supra, in which
a white male was able to state a claim for racial discrimination under § 1981 for supporting an
African American coworker’s racial discrimination claim. See also Phelps v. Wichita Eagle-
Case 2:17-cv-01011-KWR-GBW Document 244 Filed 04/23/20 Page 18 of 18
Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989) (collecting cases) (“alleged discrimination against
a white person because of his association with blacks may state a cause of action under Section
1981”). However, Patrick does not stand for the proposition that a white person may state a clam
for a work environment hostile to African Americans.
Plaintiff created a genuine dispute of material fact as to his New Mexico Whistleblower
Protection Act claim (Count I). Plaintiff’s First Amendment Association claim is dismissed, but
the Court does not rule on the viability of any First Amendment Speech claim (Count II). Finally,
Plaintiff’s claims under Count III are dismissed.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc.
185) is GRANTED IN PART and DENIED IN PART.
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