April 16, 2019- Mike Kakuska v. Roswell Independent School District, No. A-1-CA-36488

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	MIKE KAKUSKA,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-36488
5 ROSWELL INDEPENDENT SCHOOL
6 DISTRICT, ROSWELL ISD SCHOOL
7 BOARD, and TOM BURRIS,
8 SUPERINTENDENT,
9 	Defendants-Appellees.
10 	APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
11 	William G. W. Shoobridge, District Judge
12 	The Jones Witt Law Firm
13 	S. Doug Jones Witt
14 Roswell , NM
15 	for Appellant
16 Atwood, Malone, Turner & Sabin, P.A.
17 Bryan Evans
18 	Barbara Evans
19 Roswell, NM
20 	for Appellees
Court of Appeals of New Mexico
Filed 4/16/2019 11:10 AM
Mark Reynolds

1 	MEMORANDUM OPINION
2 MEDINA, Judge.
3 { I} 	Plaintiff Mike Kakuska filed a complaint against the Roswell Independent
4 	School District (RISD), the Roswell ISD School Board, and Superintendent Tom
5 Burris 1 ( collectively, Defendants) for unlawful retaliation in violation of the New
6 Mexico Whistleblower Protection Act (WPA), NMSA 1978, §§ 	10-16C-1 to -6
7 (2010). 	The district court concluded that Plaintiffs 	communications were not
8 protected under the WP A and granted Defendants' motion for summary judgment
9 as a matter oflaw . We affirm.
10 	I.
11 	{2}
BACKGROUND
The undisputed facts are as follows . Plaintiff was employed as the Assistant
12 	Superintendent for Human Resources for RISD. 	Plaintiffs job duties included
13 	serving 	as 	RISD's 	chief adviser 	in 	the 	interpretation 	of personnel 	policies,
14 	implementing federal wage and hour laws, and placing employees on the salary
15 	schedule. During Plaintiffs employment in 2012, an RISD employee was placed on
16 administrative leave pending an investigation into whether the employee hacked
17 	another 	employee's 	email 	account. 	Plaintiffs 	supervisor, 	the 	Superintendent,
18 	informed Plaintiff that he intended to terminate the employee. Plaintiff responded
1 Plaintiff later agreed to the dismissal of the Superintendent in his individual
capacity.
2

1 that 	discharging 	the 	employee 	would 	violate 	RISD 	policy 	and 	recommended
2 reprimand over termination. Plaintiff told the Superintendent "we'd never prevail in
3 a court procedure" regarding the proposed termination.
4 	{3} 	RISD ultimately determined the employee violated two school policies, one
5 concerning the unauthorized disclosure of confidential information and the other
6 concerning acceptable technology use. Pursuant to a settlement agreement, the
7 employee was allowed to resign. Plaintiff acknowledged that legal counsel advised
8 the Superintendent he was within his rights to terminate the employee.
9 	{4} 	Later in the 2012 academic year, the Superintendent proposed restructuring
10 the pay scale for two new administrative assistant positions. Placing employees on
11 	the pay scale and administering the salary schedule were included within Plaintiffs
12 job duties. Plaintiff objected to the restructuring and asserted that the proposal would
13 	violate state and federal wage and hour laws. The Superintendent consulted with
14 	legal counsel and proceeded with the pay restructuring.
15 	{5} 	Plaintiff received a work evaluation at the end of the academic year that he
16 	characterized as "the first negative evaluation of his career at RISD." Plaintiff
17 	responded to his evaluation in writing, asserting among other things, that the
18 	proposed restructuring of the pay scale for the new employees was against the law.
19 The following academic year, RISD notified Plaintiff that his contract would not be
3

1 renewed. RISD then placed Plaintiff on paid administrative leave until his contract
2 expired in June 2014.
3 {6} 	Based on the above undisputed facts, RISD moved for summary judgment on
4 the basis that Plaintiffs "alleged whistleblowing activity took place in the course of
5 his normal job responsibilities" and therefore was not protected under the WP A. In
6 addition, and as Plaintiff concedes, he never took his concerns to the school board,
7 the media, or anyone outside the school district. After hearing argument from the
8 parties, the district court entered an order granting Defendants' motion for summary
9 judgment dismissing Plaintiffs 	WPA claims as 	a matter of law. 	This appeal
10 	followed.
11 	II. 	DISCUSSION
12 	A. 	Standard of Review
13 	{7} 	We review the district court's grant of summary judgment de novo. Romero
14 v. Philip Morris Inc., 2010-NMSC-035, ,I 7, 148 N.M. 713, 242 P.3d 280. We will
15 	affirm the district court "where there are no genuine issues of material fact and the
16 movant is entitled to judgment as a matter of law." Id. (internal quotation marks and
17 citation omitted). "The party moving for summary judgment has the initial burden
18 	of establishing a prima facie 	case for summary judgment by presenting such
19 evidence as is sufficient in law to raise a presumption of fact or establish the fact in
20 question unless rebutted." City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037,
4

1 ,r 14, 150 N.M. 428, 260 P.3d 414 (internal quotation marks and citation omitted).
2 Once the movant meets this burden, "the burden shifts to the non-movant to
3 demonstrate the existence of specific evidentiary facts which would require trial on
4 the merits." Romero, 2010-NMSC-035, ,r 10 (internal quotation marks and citation
5 omitted).
6 	{8} 	This Court reviews issues of statutory interpretation de novo. Faber v. King,
7 2015-NMSC-015, ,r 8, 348 P.3d 173. We construe a statute "in light of its purpose
8 and interpret it to mean what the Legislature intended it to mean, and to accomplish
9 the ends sought to be accomplished by it." Id. (internal quotation marks and citation
10 omitted). "In discerning the Legislature's intent, we are aided by classic canons of
11 	statutory construction, and we look first to the plain language of the statute, giving
12 	the words their ordinary meaning, unless the Legislature indicates a different one
13 	was intended." Id. ,r 9 (alteration, internal quotation marks, and citation omitted).
14 "We 	examine 	the 	overall 	structure 	of 	the 	statute 	and 	its 	function 	in 	the
15 	comprehensive legislative scheme." Id.
16 B.
17 	{9}
TheWPA
The Legislature enacted the WP A "to encourage employees to report illegal
18 	practices without fear of reprisal by their employers." Janet v. 	Marshall, 2013-
19 NMCA-037, ,r 21, 296 P.3d 1253 (internal quotation marks and citation omitted).
20 	"The WP A was modeled after its federal counterpart." Wills v. Bd. of Regents of
5

1 Univ. of N.M, 2015-NMCA-105, ,r 19,357 P.3d 453 (citing 5 U.S.C. § 2302(b)(8)
2 (2013) ). "The WP A promotes transparent government and the rule of law." Flores
3 v. Herrera, 2016-NMSC-033, ,r 9, 384 P.3d 1070. Relevant here, Section 10-16C-3
4 prohibits a public employer from taking retaliatory action against a public employee
5 because the public employee communicates about conduct that the public employee
6 believes in good faith to be unlawful or improper, or provides information to a public
7 body as part of an inquiry into an unlawful or improper act. An "unlawful or
8 improper act" under the WP A
9
10
11
12
13
14
means a practice, procedure, action or failure to act on the part of a
public employer that: (1) violates a federal law, a federal regulation, a
state law, a state administrative rule or a law of any political subdivision
of the 	state; 	(2) 	constitutes 	malfeasance 	in public 	office; 	or 	(3)
constitutes gross 	mismanagement, 	a waste 	of funds, 	an 	abuse 	of
authority or a substantial and specific danger to the public.
15 	Section 10-16C-2(E).
16 	C. 	Plaintiff's Communications
17 	{IO} 	Plaintiff argues that his verbal and written objection to the proposed employee
18 	discipline and pay restructuring "qualify for protection" under the WP A. Defendants
19 continue to assert, as they did in the district court, that Plaintiff"was communicating
20 about issues squarely within his written job description, about which he had little
21 	personal knowledge and which were personal to his own employment situation, and
22 was communicating to his direct supervisor only, and to no one else" and, therefore,
23 	he 	did 	not 	engage 	in 	a 	protected 	disclosure. 	We 	first 	analyze 	Plaintiffs
6

1 communications regarding the employee discipline and then tum to the salary
2 restructuring issue.
3 	1. 	Employee Discipline
4 {II} 	Plaintiff 	contends 	he 	was 	wrongfully 	terminated 	as 	a 	result 	of 	his
5 communications regarding employee 	discipline, 	but he 	offers 	no 	argument 	or
6 authority to explain why his objection to the employee discipline is protected under
7 the WP A. 	Plaintiffs sole basis for this unsupported assertion is that, after he
8 objected to the proposed discipline, the Superintendent "began retaliating against
9 	[Plaintiff] and alienating him from his work and colleagues." Because Plaintiffs
10 	argument is undeveloped, we do not address it further. See State v. Clifford, 1994-
11 	NMSC-048 , ~ 19, 117 N.M. 508,873 P.2d 254 (reminding counsel that the appellate
12 	courts are not required to do their research); State v. Stephenson, 2015-NMCA-038,
13 	~ 24, 346 P.3d 409 (declining to review the state's undeveloped argument on appeal);
14 see also Rule 12-318(A)(4) NMRA ("The argument [in a party's brief-in-chief] shall
15 	set 	forth 	a 	specific 	attack 	on 	any 	finding, 	or 	the 	finding 	shall 	be 	deemed
16 conclusive.").
17 	2. 	Salary Restructuring
18 	{12} 	Plaintiff made two communications in response to the proposed employee
19 	salary 	restructuring, 	one 	in 	writing 	and 	one 	verbally. 	Plaintiffs 	written
20 communication, 	which 	he 	concedes 	was 	made 	in 	response 	to 	the 	negative
7

1 performance evaluation, alleged that RISD violated "Department of Labor law,
2 EEOC 	directives 	and 	RISD 	Policy." 	We 	disagree 	with 	Plaintiff 	that 	this
3 communication was a protected activity under the WP A.
4 	{13} 	Wills is instructive. In that case, the plaintiff was also terminated by a public
5 employer after allegedly communicating about an improper or unlawful act. 2015-
6 NMCA-105,, 4. The Wills plaintiff filed a complaint seeking past due salary and
7 alleging his employer breached the employment contract. Id. The public employer
8 terminated the plaintiffs employment four days later. Id. The plaintiff then amended
9 his complaint to allege a violation of the WP A, claiming the public employer abused
10 its authority when it terminated his employment and the complaint itself served as a
11 	communication to the public employer or a third party of an unlawful or improper
12 	act. Id. ,, 5, 13.
13 	{14} 	We 	affirmed the 	district court's 	dismissal 	of the 	WP A 	claim 	in 	Wills,
14 	reasoning in part that "personal disagreements with legitimate managerial decisions
15 	do not demonstrate abuse of authority or any other kind of activity that could be
16 considered a whistleblowing disclosure[.]" Id. ,, 20-21 (internal quotation marks
17 and citation omitted). We also said that "whistleblower protection laws are designed
18 	to protect employees who risk their own personal job security for the benefit of the
19 public[.]" Id. (internal quotation marks and citation omitted). Finally, we concluded
8

1 whistleblower protections laws do not protect "communications regarding personal
2 personnel grievances that primarily benefit the individual employee." Id. 120.
3 	{15} 	The undisputed facts in this case show Plaintiffs written communication was
4 part of a personal personnel grievance. The fact that Plaintiff alleged RISO violated
5 federal 	law, state 	law, 	and RISO policy in his personal 	grievance, 	does 	not
6 automatically transform his communication into one protected by the WP A. Nothing
7 about Plaintiffs response to his negative performance evaluation indicates an intent
8 to serve any purpose other than to refute the basis for the negative evaluation.
9 	{16} 	Once 	the 	undisputed 	facts 	showed 	Plaintiffs 	written 	communication
10 regarding his objections to and disagreements with the employee pay restructuring
11 	were made in response to his negative performance evaluation, the burden shifted to
12 	Plaintiff to prove there was a genuine issue of material fact for trial and/or Defendant
13 	was not entitled to judgment as a matter of law. 	See Rule 	1-056(C) NMRA
14 (providing that summary "judgment ... shall be rendered forthwith if the pleadings,
15 	depositions, answers to interrogatories and admissions on file, together with the
16 affidavits ... show that there is no genuine issue as to any material fact and that the
17 	moving party is entitled to a judgment a matter oflaw"); Romero, 2010-NMSC-035,
18 1 10 ("Once [a] prima facie showing has been made, the burden shifts to the non-
19 movant to demonstrate the existence of specific evidentiary facts which would
20 require trial on the merits." (internal quotation marks and citation omitted)). Plaintiff
9

1 did neither and, in fact, conceded that his written communication was in response to
2 the 	negative 	performance 	evaluation. 	See 	Romero, 	2010-NMSC-035, 	1 	7
3 ("Summary judgment is appropriate where there are no genuine issues of material
4 fact and the movant is entitled to judgment as a matter of law." (internal quotation
5 marks and citation omitted)). Therefore, we affirm the district court's grant of
6 summary judgment as to Plaintiffs written communication.
7 {17} 	Plaintiff 	also 	contends 	that 	his 	verbal 	disagreement 	with 	the 	salary
8 restructuring "qualifies for protection" under the WPA. We disagree. Our case law
9 requires plaintiffs alleging "whistleblowing[ to] show that their actions furthered a
10 public interest rather than a private one." Garrity v. Overland Sheepskin Co., 1996-
11 	NMSC-032, 115, 	121 	N.M. 710, 917 P.2d 1382 (internal quotation marks and
12 citation omitted); see Wills, 2015-NMCA-105, 1 20 (identifying cases in which
13 	courts have distinguished " 'whistleblowing' that benefits the public by exposing
14 	unlawful and improper actions by government employees" from communications
15 	that primarily benefit the employee or are personal disagreements with legitimate
16 	managerial decisions).
17 	{18} 	To determine whether a communication furthers a public interest rather than
18 	a 	private 	one, 	"courts 	must 	determine 	on 	a 	case-by-case 	basis 	whether 	the
19 employee's actions furthered some singularly public purpose or served primarily to
20 benefit the private interest of the employer or employee." Garrity, 1996-NMSC-032,
10

1 ,I 24. Plaintiff's undisputed job duties required him to advise his employer on
2 compliance with state and federal wage laws and regulations. These job duties
3 explicitly contemplated Plaintiff providing RISD with the advice Plaintiff now
4 claims is protected by the WP A and is the type of communication RISD expected
5 Plaintiff to 	make. 	Therefore, 	it 	was 	in 	Plaintiff's 	own 	interest 	as 	Assistant
6 	Superintendent to communicate to the Superintendent his understanding of the
7 relevant wage laws as they related to the proposed salary restructuring. Plaintiff did
8 not make these communications to another entity, nor did Plaintiff communicate on
9 a subject matter outside of his defined job duties. Plaintiff failed to show his verbal
10 communication was anything other than the exact benefit RISD expected to receive
11 	by employing Plaintiff. The benefits of such a communication enure to the employer
12 	and the employee, not the public. Plaintiff failed to meet his burden of showing there
13 	was a genuine issue of material fact that his verbal communication furthered a public
14 	interest. We affirm the district court's grant of summary judgment as to this verbal
15 	communication. See Romero, 2010-NMSC-035 , ,I,I 7, 10.
16 II. 	Public Policy
17 	{19} 	Lastly, Plaintiff argues in a single paragraph that public policy considerations
18 	mandate a different result because calling attention to public malfeasance in our
19 public education system should be valued over a public employer' s interests in
20 running a claim-free working environment. We agree that speaking out against
11

1 public malfeasance in our public education system is an important public policy
2 concern. Indeed, the WP A was enacted in part to serve this purpose. Janet, 2013-
3 NMCA-037, 	,-r 21 	("[W]histleblower laws 	in general 	are meant to 	encourage
4 employees to report illegal practices without fear of reprisal by their employers."
5 (internal 	quotation 	marks 	and 	citation 	omitted)). 	However, 	based 	on 	the
6 aforementioned 	analysis 	and 	authority, 	Plaintiffs 	communications, 	made 	in
7 response to a negative performance evaluation and as part of his job responsibilities,
8 are not the type of communications protected by the WP A.
9 	{20} 	Plaintiff also argues that if we hold his communications do not merit the
10 	WPA's protection, all human resource managers and other similar positions will
11 	always 	be 	exempted 	from 	the 	WPA's 	protections. 	Defendants 	disagree 	with
12 	Plaintiffs argument and note that the WP A protects those human resource managers
13 	and directors of personnel who "blow the whistle" by communicating outside the
14 normal chain of command or regarding matters outside of their normal job duties.
15 	{21} 	Established case law requires a human resource manager seeking the WPA's
16 protection to show evidence of a communication pertaining to a matter of public
17 interest and that the communication is not made primarily for the benefit of the
18 	employee, or as part of the employee's normal job responsibilities. See Garrity,
19 	1996-NMSC-032, ,-r,-r 15, 24; Wills, 2015-NMCA-105, ,-r,-r 20-21. This is the same
20 standard applicable to any other public employee. The WP A contains no provisions
12

1 indicating a different standard should be applied in the context of human resources
2 managers or those performing similar tasks. See §§ 10-16C-1 to -6. Plaintiff cites no
3 authority 	from 	any jurisdiction 	supporting 	the 	proposition 	that 	whistleblower
4 protection laws offer greater protection to human resource managers and those in
5 similar positions. We therefore assume none exists and do not consider the argument
6 further. See In re Adoption of Doe, 1984-NMSC-024,, 2, 100 N.M. 764, 676 P.2d
7 	1329 ("Issues raised in appellate briefs which are unsupported by cited authority will
8 not be reviewed by us on appeal.").
9 CONCLUSION
10 	{22} 	We affirm the district court's grant of RISD's motion for summary judgment.
11 	{23} 	IT IS SO ORDERED.
12
13 	UELINE R. MEDINA, Judge
14 	WE CONCUR:
13