Hatcher Law Group Wins Significant Summary Judgment for the Defense in a Claim Filed Under the New Mexico Whistleblower Protection Act

On October 3, 2016, District Judge Jennifer Attrep granted summary judgment to the Defendants in Gabrielle Kneale v. New Mexico Children, Youth and Families Department, D-101-CV-2013-03095, filed in the First Judicial District, County of Santa Fe.  Plaintiff, Ms. Kneale, worked as a grievance officer within the juvenile sexual offenders unit at CYFD’s Camino Nuevo facility in Albuquerque.  Her position was created as a result of an agreement between CYFD and ACLU-NM following protracted litigation between those two parties over conditions in the juvenile sex offender units operated by CFYD throughout the state.  As grievance officer, Plaintiff was required to forward grievances of juvenile sex offenders to the agency on a variety of matters regarding their detention.  After Plaintiff was caught on video tape having what CYFD determined to be inappropriate contact with one particular juvenile sex offender, Kneale was served with a Notice of Contemplated Action, which led to her termination effective July 19, 2012.  Officially, she was terminated for misuse of authority by crossing professional boundaries with a juvenile sex offender, breach of confidentiality by disclosing confidential information about the investigation concerning her inappropriate contact, and failure to cooperate with the investigation.  After the State Personnel Board approved the termination, Plaintiff appealed the ALJs findings and conclusions and brought a separate count for violation of the Whistleblower Protection Act (WPA).  Plaintiff claimed her termination was pretextual and in retaliation for certain communications made to her employer dating from September 2010 through March 2012, constituting complaints regarding unlawful acts occurring throughout the facility.  Among other things, Plaintiff claimed retaliation for reporting alleged policy violations not only concerning weekly grievance logs kept by her which concerned alleged abuses of authority in the form of illegal room confinement of sexual offenders, staff retaliation against clients for using the grievance process and impermissible use of mechanical restraints, but also certain personal grievances concerning the agency’s treatment of her.

 

For the first time since the WPA was enacted in 2009, a Court applied the burden shifting framework traditionally used by federal courts in discrimination claims under McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) to measure the viability of WPA claims.  Judge Attrep found Plaintiff had not made a prima facie case for showing protected activity primarily because the complaints made by Ms. Kneale were those made within the scope of her normal duties and through proper communication channels with superiors.  In doing so, Judge Attrep relied on certain federal cases construing the federal Whistleblower Protection Act and New Mexico legislative authority establishing the NM WPA was modeled from the federal Act.  Even assuming a prima facie case was made, and noting there was no dispute that Plaintiff was the subject of an adverse employment action, Judge Attrep then evaluated whether there was a causal connection between her termination and the claimed protected activity.  The Court ruled there was insufficient evidence of a causal relationship to support a case that Plaintiff was retaliated against for communicating protected matter.  The analysis went on to establish under the McDonnell-Douglas test, that CYFD had shown a legitimate nondiscriminatory reason for the termination, specifically the State Personnel Board’s final decision approving the termination for just cause.  The final part of the opinion focused on whether the employer’s articulation of a legitimate, nondiscriminatory reason for these adverse employment actions was, in fact, pretextual for illegal discrimination.  Finding this prong of the McDonnell-Douglas test failed, the Court ruled that CYFD was entitled to summary judgment on the WPA claim.  The case has, as a result, been dismissed.

 

As indicated, this is the first case in which the McDonnell-Douglas burden-shifting test for retaliatory discrimination claims has been utilized in a WPA setting.  The case was aggressively litigated over a period of two years and the stakes were relatively high.  The parties attempted mediation, although this case had little chance of settlement.  Judge Attrep’s ruling came three weeks prior to a jury docket call.  The defense expects an appeal of this decision to the New Mexico Court of Appeals.