April 9, 2020- Gerry Billy v. Curry County Board of County Commissioners, No. A-1-CA-36071

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed. "It 1:50 PM
2| GERRY BILLY,

3 Plaintiff-A ppellee, Hue
Mark Reynolds

Al v. No. A-1-CA-36071

5] CURRY COUNTY BOARD OF

6 COUNTY COMMISSIONERS, a

7| political subdivision existing under

8] the laws of the State of New Mexico,

9 Defendant- Appellant.

10} Consolidated with

11} GERRY BILLY,

12 Plaintiff-A ppellant,

13] v.

14| CURRY COUNTY BOARD OF

15] COUNTY COMMISSIONERS, a

16] political subdivision existing under

17] the laws of the State of New Mexico,

18 Defendant- Appellee.

19] APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
20) William G.W. Shoobridge, District Judge

21] Davis Law New Mexico
22| Philip B. Davis

23] Nicholas T. Davis

24) Albuquerque, NM

25) for Appellee

2
The New Mexico Association of Counties	1
Brandon Huss	2
Grace Philips	3
Santa Fe, NM	4
for Appellant	5
MEMORANDUM OPINION	6
HANISEE, Chief Judge.	7
{1} 	The opinion filed February 5, 2020, is hereby withdrawn, and this opinion is	8
substituted in its place. Plaintiff prevailed after a jury trial on his claim under the	9
New Mexico Whistleblower Protection Act, NMSA 1978, Sections 10-16C-1 to -6	10
(2010) (WPA). Defendant appeals the district court’s denial of its motion for	11
directed verdict and for judgment notwithstanding the verdict. Plaintiff cross-appeals	12
the district court’s interest award. We conclude the jury’s finding that the conduct	13
Plaintiff allegedly objected to or refused to participate in was an “unlawful or	14
improper act,” as defined by the jury instructions, is unsupported by substantial	15
evidence. We reverse and vacate the district court’s final judgment. Plaintiff’s cross-	16
appeal is moot.	17
BACKGROUND	18
Factual Background	19
{2} 	On January 11, 2012, Plaintiff signed an employment contract with Defendant	20
to serve as Administrator of the Curry County Detention Center. Plaintiff’s contract	21

3
was for a term of one year, with Defendant holding an annual option to renew.	1
Plaintiff was employed as Administrator until Defendant voted at a January 8, 2013,	2
public meeting not to renew his contract. Plaintiff subsequently filed a complaint in	3
federal court.	4
Procedural Background	5
{3} 	Plaintiff brought a number of claims to federal court, all of which were	6
dismissed on motions to dismiss or summary judgment. Plaintiff’s state law WPA	7
claims were dismissed without prejudice. Following an unsuccessful federal appeal,	8
Plaintiff proceeded to state court, where he filed an amended complaint alleging	9
several factual scenarios in support of his WPA claims. By the time of trial,	10
dispositive motions had narrowed Plaintiff’s WPA claims to a total of three. At trial,	11
following the close of Plaintiff’s evidence, the district court issued a directed verdict	12
in favor of Defendant with respect to two of Plaintiff’s three remaining claims.	13
{4} 	The trial judge informed the jury, prior to the reading of the jury instructions,	14
that two of Plaintiff’s remaining three claims had been dismissed, and that the jury	15
was only to consider only the following claim. The WPA prohibits public employers	16
from retaliating against public employees for, inter alia, “object[ing] to or refus[ing]	17
to participate in an activity, policy or practice that constitutes an unlawful or	18
improper act.” Section 10-16C-3(C). As discussed more fully in this opinion, this is	19
the third of three distinct theories of recovery available under the WPA. Plaintiff	20

4
alleged he was entitled to recovery under this theory because (1) County Manager	1
Lance “Pyle directed Plaintiff to discipline . . . employee [Amanda Sinfuego],” (2)	2
“Pyle’s directive constituted an unlawful or improper act,” (3) “Plaintiff refused or	3
objected to . . . Pyle’s directive,” and (4) “Plaintiff was retaliated against for refusing	4
the directive.”	5
{5} 	The jury accepted Plaintiff’s theory, finding that he had objected to or refused	6
to participate in an activity, policy, or practice that constituted an “unlawful or	7
improper act.” “[U]nlawful or improper act” was defined in the jury instructions as	8
“a practice, procedure, action or failure to act that violates a federal law, federal	9
regulation, state law, or state administrative rule.”	10
{6} 	The jury also found Plaintiff’s refusal to discipline Sinfuego was a motivating	11
factor in Defendant’s decision not to renew Plaintiff’s contract and that Defendant’s	12
retaliatory action damaged Plaintiff. The jury awarded Plaintiff lost wages in the	13
amount of $87,630.13. Following post-trial motions in both the district court and this	14
Court, the district court entered its final judgment incorporating the jury’s verdict	15
and awarding Plaintiff damages and interest, pursuant to the provisions of the WPA.	16
The Three Prongs of the WPA	17
{7} 	The 	WPA 	broadly 	prohibits 	a 	public 	employer 	from 	taking 	adverse	18
employment action against a public employee in retaliation for certain conduct. See	19
§ 10-16C-3. Specifically, the WPA contemplates three separate and distinct theories	20

5
of recovery. See § 10-16C-3(A)-(C). Each of the three prongs of the WPA requires	1
a finding that the plaintiff was retaliated against for underlying conduct. Id. What	2
distinguishes the three prongs is the nature of the underlying conduct.	3
{8} 	The 	first 	prong, 	§ 10-16C-3(A), 	describes 	the 	popularly-recognized	4
“whistleblowing” scenario, in which a public employee “communicates to the public	5
employer or a third party information about an action or a failure to act that a public	6
employee believes in good faith constitutes an unlawful or improper act” and is	7
retaliated against. See id. Critical to this prong is whether the plaintiff made a	8
protected “communication.” See, e.g., Wills v. Bd. of Regents, 2015-NMCA-105,	9
¶ 21, 357 P.3d 453 (holding that the plaintiff’s filing of a breach of contract lawsuit	10
against his former employer was not a “communication” with the defendants or a	11
third party about an alleged abuse of the defendants’ authority under the first prong	12
of the WPA). Most New Mexico case law construing the language of the WPA arises	13
out of first-prong fact patterns.	14
{9} 	The second prong, § 10-16C-3(B), protects a plaintiff who is retaliated against	15
for providing information or testifying before a public body “as part of an	16
investigation, hearing or inquiry into an unlawful or improper act.” New Mexico	17
does not appear to have any case law arising under this subsection.	18
{10} 	The third prong, § 10-16C-3(C), governs the only one of Plaintiff’s claims	19
that reached the jury. This subsection describes a situation in which a plaintiff is	20

6
retaliated against for objecting to or refusing to participate in an activity, policy, or	1
practice that constitutes an “unlawful or improper act.” Id. “Unlawful or improper	2
act” is broadly defined elsewhere in the WPA as	3
a practice, procedure, action or failure to act on the part of a public	4
employer that: (1) violates a federal law, a federal regulation, a state	5
law, a state administrative rule or a law of any political subdivision of	6
the state; (2) constitutes malfeasance in public office; or (3) constitutes	7
gross mismanagement, a waste of funds, an abuse of authority or a	8
substantial and specific danger to the public.	9
Section 10-16C-2(E).	10
{11} 	The language of the first prong differs from that of the second and third prongs	11
in at least one important respect. The first prong requires a plaintiff to demonstrate	12
he or she “believes in good faith” that an action or failure to act on the part of the	13
public employer “constitutes an unlawful or improper act.” Section 10-16C-3(A). A	14
plaintiff proceeding under this prong, therefore, does not have the burden of	15
demonstrating the “unlawful or improper act” in question was in fact unlawful or	16
improper, as otherwise defined in the WPA. In first-prong cases, the jury’s inquiry	17
into whether conduct was unlawful or improper turns instead on the plaintiff’s belief	18
as to the unlawfulness or impropriety of the conduct in question.	19
{12} 	A plaintiff proceeding under the third prong, as in this case, has a different	20
evidentiary burden than a plaintiff proceeding under the first, because the second	21
and third prongs omit the “good faith belief” language, requiring instead proof that	22
the plaintiff declined to perform or objected to an act that is actually unlawful or	23

7
improper. Compare § 10-16C-3(A), with § 10-16C-3(C). We assume this was not a	1
drafting error. “The Legislature knows how to include language in a statute if it so	2
desires.” State v. Greenwood, 2012-NMCA-017, ¶ 38, 271 P.3d 753 (alteration,	3
internal quotation marks, and citation omitted). As a result, a plaintiff proceeding	4
under the second or third prong must establish the “unlawful or improper act” in	5
question was, in fact, unlawful or improper, as otherwise defined in the WPA. In our	6
case, the phrase “unlawful or improper act” was specifically defined in the jury	7
instructions. Per that instruction, the jury found Pyle’s directive to Plaintiff was “a	8
practice, procedure, action or failure to act that violates a federal law, federal	9
regulation, state law, or state administrative rule.” The question we consider in this	10
appeal is whether there was sufficient evidence supporting this finding.	11
DISCUSSION	12
Standard of Review	13
{13} 	Defendant contends the district court erred in denying its motions for directed	14
verdict and judgment notwithstanding the verdict. Our review is de novo. McNeill v.	15
Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182 P.3d	16
121.	17
A directed verdict is a drastic measure that is generally disfavored. A	18
district court should not grant a motion for directed verdict unless it is	19
clear that the facts and inferences are so strongly and overwhelmingly	20
in favor of the moving party that the judge believes that reasonable	21
people could not arrive at a contrary result.	22

8
Silva v. Lovelace Health Sys., Inc., 2014-NMCA-086, ¶ 36, 331 P.3d 958 (internal	1
quotation marks and citation omitted). “A directed verdict is appropriate only when	2
there are no true issues of fact to be presented to a jury. The sufficiency of evidence	3
presented to support a legal claim or defense is a question of law for the district court	4
to decide.” Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109, ¶ 7, 314 P.3d	5
681 (alteration, omission, internal quotation marks, and citation omitted).	6
In reviewing a sufficiency of the evidence claim, this Court views the	7
evidence in a light most favorable to the prevailing party and disregards	8
any inferences and evidence to the contrary. We defer to the jury’s	9
determination 	regarding 	the 	credibility 	of 	witnesses 	and 	the	10
reconciliation of inconsistent or contradictory evidence. We simply	11
review the evidence to determine whether there is evidence that a	12
reasonable mind would find adequate to support a conclusion.	13
Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 15, 150 N.M. 17, 256	14
P.3d 29 (alteration, internal quotation marks, and citation omitted). “We will not	15
reweigh the evidence [or] substitute our judgment for that of the fact[-] finder.” N.M.	16
Taxation & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 20, 336 P.3d	17
436 (alteration, internal quotation marks, and citation omitted).	18
Jury Instructions	19
{14} 	Neither party complains about the jury instructions on appeal. As such, the	20
unchallenged instructions “become the law of the case against which sufficiency of	21
the evidence is to be measured.” Muncey v. Eyeglass World, LLC, 2012-NMCA-	22

9
120, ¶ 21, 289 P.3d 1255 (internal quotation marks and citation omitted). Jury	1
Instructions No. 4 and No. 5 therefore guide our sufficiency analysis.	2
{15} 	Jury Instruction No. 4 provides in pertinent part:	3
Plaintiff has the burden of proving:	4
(1) 	. . . Plaintiff objected to or refused to participate in an activity,	5
policy or practice that constitutes an unlawful or improper act;	6
and	7
(2) 	The public employer took a retaliatory action against Plaintiff	8
because 	he 	communicated 	such 	information 	to 	the 	public	9
employer or a third party.	10
Jury Instruction No. 4 also defines an “unlawful or improper act” as “a practice,	11
procedure, action or failure to act that violates a federal law, federal regulation, state	12
law, or state administrative rule.”	13
{16} 	Jury Instruction No. 5 frames the jury’s charge more specifically. It instructs	14
that Plaintiff has the burden of proving: (1) “Pyle directed Plaintiff to discipline	15
[Sinfuego], (2) “Pyle’s directive constituted an unlawful or improper act,” (3)	16
“Plaintiff refused or objected to . . . Pyle’s directive,” and (4) “Plaintiff was retaliated	17
against for refusing the directive.”	18
Sufficiency of the Evidence	19
{17} 	“We evaluate the evidence with reference to the language of the jury	20
instructions given, which constitute the law of the case.” Littell v. Allstate Ins. Co.,	21
2008-NMCA-012, ¶ 33, 143 N.M. 506, 177 P.3d 1080. In the instant case, we inquire	22

10
whether sufficient evidence supports the jury’s findings that (1) “Plaintiff objected	1
to or refused to participate in an activity, policy or practice that constitutes an	2
unlawful or improper act[,]” and that (2) “Pyle’s directive constituted an unlawful	3
or improper act.”	4
{18} 	On appeal, Plaintiff insists Pyle’s directive was unlawful or improper.	5
However, “[i]t is not our practice to rely on assertions of counsel unaccompanied by	6
support in the record.” Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256	7
P.3d 987 (internal quotation marks and citation omitted). We have reviewed the	8
parties’ briefing and argument in the trial court and we have considered the appellate	9
briefs. We have examined the record of the trial. Although this Court has no duty to	10
review an argument that is not adequately developed, Headley v. Morgan Mgmt.	11
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076; Martinez v. Sw.	12
Landfills, Inc., 1993-NMCA-020, ¶ 15, 115 N.M. 181, 848 P.2d 1108 (reiterating	13
that “it is not the responsibility of the reviewing court to search through the record to	14
determine whether substantial evidence exists to support a finding”), we nonetheless	15
found nothing in the record supporting the jury’s finding that Pyle’s directive to	16
Plaintiff to further discipline Sinfuego was a “practice, procedure, action or failure	17
to act that violates a federal law, federal regulation, state law, or state administrative	18
rule.”	19

11
{19} 	If Plaintiff put on evidence at trial in support of any such finding, he does not	1
point us to it now. See Martinez, 1993-NMCA-020, ¶ 15. Plaintiff’s briefing	2
confirms only that certain basic facts were established. There was testimony that	3
Pyle told Plaintiff that Sinfuego distributed union materials on December 10, 2012,	4
and that Pyle demanded Plaintiff further discipline Sinfuego for this activity.	5
Sinfuego testified she did not take part in union activities on December 10, 2012,	6
and Plaintiff testified that he refused to discipline Sinfuego for activities in which	7
she did not take part. Although Plaintiff testified that he has a “policy” not to	8
discipline employees for things they have not done, a personal policy is not a “federal	9
law, a federal regulation, a state law, or a state administrative rule.”	10
{20} 	We could locate no witness testimony addressing whether the discipline of	11
Sinfuego would have been in violation of federal, state law, or rule. No witness	12
opined as such. No exhibits were offered by Plaintiff showing any law or rule he	13
would have violated had he disciplined Sinfuego per Pyle’s directive. Plaintiff’s	14
counsel argued in closing that discipline of Sinfuego would have been “against state	15
and federal law,” but it is well established that argument of counsel cannot substitute	16
for admissible evidence. Montoya, 2011-NMCA-072, ¶ 9 (“The mere assertions and	17
arguments of counsel are not evidence.” (internal quotation marks and citation	18
omitted)).	19

12
{21} 	Plaintiff’s appellate briefing cites federal law, state law, and a county	1
ordinance that Plaintiff argues to this Court establishes that Pyle’s directive was an	2
unlawful or improper act. None of the language of the law Plaintiff discusses in his	3
briefing with this Court was before the jury in the trial below. Plaintiff’s citation to	4
the New Mexico Public Employee Bargaining Act, NMSA 1978, § 10-7E-1 to -26	5
(2003, as amended through 2005) (PEBA), the National Labor Relations Act, 29	6
U.S.C. § 158(a)(3) (2018), and the New Mexico Personnel Act, NMSA 1978, §§ 10-	7
9-1 to -25 (1961, as amended through 2014), is therefore unavailing on appeal.	8
{22} 	Plaintiff’s appellate argument hinges principally on a Curry County ordinance	9
that he asserts Pyle’s directive violated. For at least two reasons, Plaintiff’s argument	10
fails. First, the language of the county ordinance upon which Plaintiff now relies to	11
establish an “unlawful or improper act” was not before the jury. Again, that which	12
was not of record at trial cannot furnish support for the jury’s findings on appeal.	13
See Durham v. Guest, 2009-NMSC-007, ¶ 10, 145 N.M. 694, 204 P.3d 19; In re	14
Mokilogon, 2005-NMCA-021, ¶ 7. Second, the jury instructions limited the scope of	15
applicable law to federal, state law, or rule and specifically omitted statutory	16
language allowing the jury to consider county ordinances in addition to federal or	17
state law. Even if the Curry County ordinance now championed by Plaintiff had been	18
before the jury, or if we could reasonably infer the jury was otherwise aware of it,	19
“local ordinance” plainly falls outside the scope of the Jury Instruction No. 4	20

13
definition of “unlawful or improper act.” Similarly, Pyle’s testimony concerning a	1
Curry County personnel policy is unavailing, again because the violation the jury	2
was specifically charged with finding was one of federal, state law, or rule, not one	3
of local ordinance.	4
{23} 	We hold Plaintiff failed to establish with sufficient evidence that Pyle’s	5
directive to Plaintiff to discipline Sinfuego constituted a violation of “federal law, a	6
federal regulation, a state law, or a state administrative rule,” and was therefore an	7
“unlawful or improper act” as defined by the jury instructions. We reverse the district	8
court and vacate its final judgment.	9
Plaintiff’s Cross-Appeal	10
{24} 	As we are reversing the district court and vacating the jury’s verdict,	11
Plaintiff’s cross-appeal challenging the interest awarded on the jury’s award of lost	12
wages is moot.	13
CONCLUSION	14
{25} 	For the foregoing reasons, we reverse and remand for further proceedings	15
consistent with this opinion.	16
{26} 	IT IS SO ORDERED.	17
_____________________________	18
J. MILES HANISEE, Chief Judge	19

1
WE CONCUR:
Kristina Bogardus
2 3 4
KRISTINA BOGARDUS, Judge
5
ZACHARY A. IVES, Judge
14