August 30, 2018- Melinda L. Wolinsky v. New Mexico Corrections Department, No. A-1-CA-35762

OCR transcription for search; preserved printed pages are authoritative

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Filed

Court of Appeals of New Mexico

O
IN THE COURT OF APPEALS STATE OF NEW MEXICO wh —

Opinion Number:

Filing Date: August 30, 2018
NO. A-1-CA-35762
MELINDA L. WOLINSKY,

Plaintiff-Appellant,
v.

NEW MEXICO CORRECTIONS
DEPARTMENT,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Matthew, District Judge

Daniel M. Faber
Albuquerque, NM

for Appellant

Keleher & McLeod, P.A.
Zachary R. Cormier

Sean Olivas
Albuquerque, NM

for Appellee

8/30/2018 9:34 AM
pe of the Clerk

[>

Mark Reynolds

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OPINION
FRENCH, Judge.

44} This case requires this Court to resolve whether the Fair Pay for Women Act
(the FPWA) provides state employees the same right to pursue sex-based wage
discrimination claims that persons employed by private employers possess. We
answer this question affirmatively, and therefore reverse the order of the district
court dismissing Plaintiff's case.

BACKGROUND

23 Melinda Wolinsky (Plaintiff) sued. her employer, the New Mexico
Corrections Department (Defendant), for sex-based pay discrimination in violation
of the FPWA. She alleged that her salary was approximately $8,000 less than that
of a male employee also employed as a “Lawyer-A” in Defendant’s Office of
General Counsel. Defendant moved to dismiss under Rule 1-012(B)(1) NMRA and
Rule 1-012(B)(6) NMRA. Defendant first argued that the FPWA does not apply to
Defendant because, in providing a cause of action against an employer, the FPWA
does not define “employer” to include the state and its agencies. Defendant
contrasted the language of the FPWA with that of other employment-related
statutes, such as the New Mexico Human Rights Act (the NMHRA), wherein the

definition of “employer” expressly includes the state.

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See NMSA 1978, § 28-1-2(A), (B) (2007). Second, Defendant argued that the
“general grant of immunity” in the Tort Claims Act (the TCA) applies. See NMSA
1978, § 41-4-4(A) (2001) (stating that “[a] governmental entity and any public
employee while acting within the scope of duty are granted immunity from liability
for any tort” except as waived by the provisions of the TCA and other named
statutes). The district court granted Defendant’s motion to dismiss, concluding that
Defendant is not subject to the FPWA.

DISCUSSION

A. Standard of Review

3} Dismissals for lack of subject matter jurisdiction pursuant to Rule 1-
012(B)(1) based on Defendant’s claim of sovereign immunity and for failure to
state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6) are
reviewed de novo. Ping Lu v. Educ. Tr. Bd. of N.M., 2013-NMCA-010, § 7, 293
P.3d 186; Moriarty Mun. Schs. v. Pub. Schs. Ins. Auth., 2001-NMCA-096, {§ 5, 17
131 N.M. 180, 34 P.3d 124. This appeal also involves interpretation of the FPWA.
“Statutory interpretation is an issue of law, which we review de novo.” N.M. Indus.
Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, § 19, 142
N.M. 533, 168 P.3d 105. We address Defendant’s argument that Plaintiffs claim is

barred by sovereign immunity and then turn our attention to the FPWA itself.

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B. Common Law Sovereign Immunity Has Been Abolished in New Mexico
{4 In Hicks v. State, the New Mexico Supreme Court abolished common law
sovereign immunity for tort actions. 1975-NMSC-056, 4 9, 88 N.M. 588, 544 P.2d
1153 (stating that “[c]ommon law sovereign immunity may no longer be
interposed as a defense by the [s]tate, or any of its political subdivisions, in tort
actions”), superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist., 2006-
NMSC-040, § 8, 140 N.M. 205, 141 P.3d 1259; see Hydro Conduit Corp. v.
Kemble, 1990-NMSC-061, § 13, 110 N.M. 173, 793 P.2d 855 (recognizing the
abolishment of the common law doctrine of sovereign immunity); Lucero v.
Richardson & Richardson, Inc., 2002-NMCA-013, 4 7, 131 N.M. 522, 39 P.3d 739
(“The legal landscape changed in 1975, however, when our Supreme Court
abolished common law sovereign immunity[.]”). In Hicks, our Supreme Court
concluded that, in the context of tort claims, sovereign immunity was “causing a
great degree of injustice[,]” to such an extent that it rendered the doctrine
unjustifiable. 1975-NMSC-056, § 10.

5} In response to Hicks, the Legislature enacted the TCA the following year.
See NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2015); Smith v. Vill.
of Corrales, 1985-NMCA-121, § 5, 103 N.M. 734, 713 P.2d 4 (describing the
enactment of the TCA as a response to the decision in Hicks). The TCA expressly

reinstated the state’s sovereign immunity for tort claims, but then expressly waived

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immunity in several specifically enumerated circumstances. See §§ 41-4-5 to -12;
Smith, 1985-NMCA-121, 9 5; see also Upton, 2006-NMSC-040, 4 8 (“The TCA
grants all government entities and their employees general immunity from actions
in tort, but waives that immunity in certain specified circumstances.”).

{6} The same year that it enacted the TCA, the Legislature enacted another
statute addressing the state’s liability for contract claims. See NMSA 1978, § 37-1-
23 (1976); Hydro Conduit Corp., 1990-NMSC-061, § 13. Section 37-1-23(A)
grants immunity to the state in actions based on contract except for claims based
upon a valid, written contract. See Hydro Conduit Corp., 1990-NMSC-061, § 17
(explaining that the legislative history of the statute indicates that the purpose of
enacting Section 37-1-23 “was to reinstate the sovereign immunity which had been
abolished by Hicks ..., subject to certain exceptions[,]” including “the acceptance
of liability for claims based on valid written contracts”).

{7} Our Supreme Court has since read Hicks as “generally abolish[ing] the
common law doctrine of sovereign immunity in all its ramifications, whether in
tort or contract or otherwise[.]” Torrance Cty. Mental Health Program v. N.M.
Health and Env’t Dep’t, 1992-NMSC-026, § 14, 113 N.M. 593, 830 P.2d 145
(emphasis added); see also State ex rel. Hanosh v. State ex rel. King, 2009-NMSC-
047, { 10, 147 N.M. 87, 217 P.3d 100 (“Although [Hicks] specifically challenged

the state’s common|]law immunity from actions in tort, no one should doubt the

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broader scope of what this Court has previously described as Hicks’s sweeping
abolition of sovereign immunity.”) (internal quotation marks and citations
omitted); Methola v. Cty. of Eddy, 1980-NMSC-145, J 9, 95 N.M. 329, 622 P.2d
234 (describing the holding in Hicks broadly as abolishing judicially recognized
sovereign immunity in New Mexico). The breadth of Hicks is bolstered by the fact
that the “opinion itself prefaced its holding by citing to a variety of New Mexico
opinions and not just cases sounding in tort.” Hanosh, 2009-NMSC-047, 11.

{83} Thus, the existence and extent of the state’s immunity post-Hicks now
depends upon the Legislature. “The common law now recognizes a constitutionally
valid statutory imposition of sovereign immunity, and such immunity must be
honored by the courts where the [L]egislature has so mandated.” Torrance Cty.,
1992-NMSC-026, § 16 (alteration, internal quotation marks, and citation omitted);
see e.g. Hydro Conduit Corp., 1990-NMSC-061, § 22 (holding that a claim against
the state for restitution based on unjust enrichment was barred by sovereign
immunity as reinstated by Section 37-1-23). The availability of the state’s defense
of sovereign immunity does not depend on whether the Legislature provided a
waiver of immunity within a statute. Rather, the state may defend a suit based on
sovereign immunity only insofar as the Legislature has invoked immunity within or
otherwise in connection with the statute under which the plaintiff brings its suit

against the state. See Torrance Cty., 1992-NMSC-026, § 23. Sovereign immunity

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now exists only “as implemented by statute or as might otherwise be interposed by
judicial decision for sound policy reasons.” Id. | 14; see also Hanosh, 2009-
NMSC-047, 7 (discussing Hicks and noting that “courts are very much able to
expand, contract, or eliminate altogether common|[|law sovereign immunity,
subject of course to the power of the state legislature to codify immunity in its
place”) (emphasis added); Smith, 1985-NMCA-121, 4 5 (“In New Mexico,
sovereign immunity is a statutory creation.”); Marrujo v. N.M. State Highway |
Transp. Dep’t, 1994-NMSC-116, § 24, 118 N.M. 753, 887 P.2d 747 (“The right to
sue the government is a statutory right and the [L]egislature can reasonably restrict
that right.”’).

C. The FPWA

{9} Plaintiff’s claim here arises solely under one state statute: the FPWA.
Defendant asserts sovereign immunity, “not under federal law or principles of
federalism,” but “under what [Defendant] perceives to be vestigial remains of our
state common||law sovereign immunity.” Hanosh, 2009-NMSC-047, 49.
However, common law sovereign immunity no longer exists. Therefore, we must
determine whether the Legislature invoked the state’s sovereign immunity in the

FPWA. Alternatively, even in the absence of an express statutory invocation, we

must determine whether the Legislature intended the state to be subject to the

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statute. See Lucero, 2002-NMCA-013, 9 3, 7, 9 (recognizing the need to
determine whether a statutory cause of action applies to government entities).

1. The FPWA Does Not Expressly Invoke Sovereign Immunity

{10} When the Legislature invokes the state’s sovereign immunity, it does so
expressly. Other statutes that invoke the state’s sovereign immunity—namely, the
TCA and Section 37-1-23—demonstrate a clear invocation of immunity. The TCA
straightforwardly provides that “[a] governmental entity and any public employee
while acting within the scope of duty are granted immunity from liability for any
tort.” Section 41-4-4(A). Similarly, in Section 37-1-23(A), the Legislature clearly
invokes the state’s immunity for contract claims by stating that “[g]overnmental
entities are granted immunity from actions based on contract[.]” The FPWA does
not contain any similar language, and it does not refer to sovereign immunity at all.
See NMSA 1978, §§ 28-23-1 to -6 (2013) (lacking language addressing the state’s
immunity from suits alleging violation of the conduct prohibited). We therefore
conclude that Defendant has no sovereign immunity from liability under the TCA
or the FPWA. We next examine the language of the FPWA to determine whether
the Legislature intended the state to be a liable party.

2. The State Is an “Employer” Subject to Claims Brought Under the
FPWA by Public Employees .

4113. The FPWA prohibits an “employer” from discriminating between employees

on the basis of sex by paying wages to employees at a rate less than the rate that
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the employer pays wages to employees of the opposite sex for equal work. Section
28-23-3(A). The FPWA defines “employer” as “a person employing four or more
employees and any person acting for an employer.” Section 28-23-2(E). The
FPWA does not, however, define “person.”

12} In the absence of contradictory language in the FPWA, the provisions of the
Uniform Statute and Rule Construction Act (the USRCA) apply. See NMSA 1978,
§ 12-2A-1(B) (1997). “The [USRCA] applies to a statute enacted or rule adopted
on or after the effective date of that act unless the statute or rule expressly provides
otherwise, the context of its language requires otherwise[,] or the application of
that act to the statute or rule would be infeasible.” Jd. The Legislature enacted the
FPWA sixteen years after the passage of the USRCA. Section 28-23-1; Section 12-
2A-1. The FPWA does not provide that the USRCA does not apply; the context of
the FPWA does not require that the USRCA does not apply; and the application of
the USRCA to the FPWA is feasible. Therefore, the USRCA supplies the meaning
of terms not defined in the FPWA.

133 The USRCA defines “person” as “an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association, joint venture or
any legal or commercial entity[.]” NMSA 1978, Section 12-2A-3(E) (1997). A
“legal entity” is “[a] body, other than a natural person, that can function legally,

sue or be sued, and make decisions through agents.” Black’s Law Dictionary 1031

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(10th ed. 2014). The state, an entity capable of suing and being sued, is, therefore,
a legal entity that falls within the definition of “person” and thus is subject to suit
for violating the terms of the FPWA. See, e.g, NMSA 1978, § 10-16C-4 (2010)
(providing a cause of action against the state); State v. Davisson, 1923-NMSC-045,
q 11, 28 N.M. 653, 217 P. 240 (explaining that the board of county commissioners
is entitled to sue for sums due to the county).

14}. Finally, we address Defendant’s argument that the Legislature must not have
intended the USRCA’s definition of “person” to include the state because the
USRCA separately defines “state.” See § 12-2A-3(E), (M). Defendant reasons that
if “person” included the state, there would have been no need to provide a
definition for “state.” We are not persuaded by this argument. The USRCA defines
“state” as “a state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico or any territory or insular possession subject to the
jurisdiction of the United States.” Jd. All items within the definition of “state” are
geographic locations. Section 12-2(A)-3(M). The items within the definition of
“person” are different in kind; all but one of the items in the definition is a body or
an entity created by law. As a result, the definition of “state” is not superfluous. It
simply defines the geographic locations that are included by use of the term “state”

on its own in a statute, whether or not the statute also uses the term “person.”

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CONCLUSION

15}. We conclude that the Legislature intended for the state to be subject to
claims brought under the FPWA and we reverse the order of the district court
granting Defendant’s motion to dismiss.

a6 ITISSO ORDERED.

PLATZ pe —

STEPHEN G. FRENCH, Judge

WE CONCTUR:

————

M. MONICA ZAMORA

HENRY M. BOHNHOFF, Judge

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