April 19, 2012 – Maria Rodriguez v. New Mexico Department of Workforce Solutions, No. 30,726

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 19, 2012

NO. 30,726

MARIA RODRIGUEZ,
Plaintiff-A ppellant,

V.

NEW MEXICO DEPARTMENT
OF WORKFORCE SOLUTIONS,

Defendant- Appellee.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Jerald A. Valentine, District J udge

Law Offices of E. Justin Pennington
EF. Justin Pennington

Albuquerque, NM

for Appellant

Sandenaw Law Firm, P.C.

CaraLyn Banks
Las Cruces, NM

for Appellee

OPINION
SUTIN, Judge.
{1} 	This appeal pits the New Mexico Personnel Act against the New Mexico
Human Rights Act on the question of which law is controlling when a discharged
probationary state employee with no property interest in continuing employment seeks
relief under the Human Rights Act for sex and age discrimination. The district court
dismissed the employee’s Human Rights Act claim on the ground that, under the
Personnel Act, the State agency was permitted to terminate the probationary
employee’s employment without cause even if the termination was based on sex or
age discrimination. We disagree and hold that the employee can pursue a claim under
the Human Rights Act.
BACKGROUND
{2} 	Plaintiff Maria Rodriguez was hired by Defendant New Mexico Department of
Workforce Solutions (the Department) first as a temporary employee and then as a
probationary employee. 	While she was a probationary employee, she was given a
notice of dismissal from her position pursuant to the New Mexico Personnel Act,
NMSA 1978, §§ 10-9-1 to -25 (1961, as amended through 2009).
{3} 	Under the Personnel Act, “‘employee’ means a person in a position . . . who has
completed his probationary period[.]” Section 10-9-3(I). A probationary employee

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is referred to as a “probationer,” meaning “a person . . . who is still in the probationary
period for that position.” 	Section 10-9-3(J). 	State Personnel Board Regulation
1.7.1.7(CC) NMAC (3/31/2006) (amended 10/15/2008) states that “probationer”
means “an employee in the classified service who has not completed the one-year
probationary 	period.” 	And 	1.7.11.11 	NMAC 	(11/14/2002), 	as 	it 	relates 	to
probationers, states that “[p]robationers . . . may be suspended, demoted, or dismissed
effective immediately with written notice and without right of appeal to the board.”
{4} 	Following her discharge, Plaintiff filed a claim with the New Mexico
Department of Labor, Human Rights Division and the Equal Employment Opportunity
Commission against the Department alleging discrimination and retaliation based on
her sex and age. 	After exhaustion of her administrative remedies, Plaintiff filed a
notice of appeal and complaint in the district court asserting discrimination and
retaliation under the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15
(1969, as amended through 2007). See § 28-1-10(A), (D), (J) (setting out grievance
procedures); § 28-1-13 (setting out appeal procedure).
{5} 	The Department filed a motion for summary judgment, asserting that, because
Plaintiff was a probationary employee and therefore had no property interest in
continuing 	employment, 	the 	court 	lacked 	jurisdiction 	to 	consider 	Plaintiff’s

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constitutional claims. In its memorandum in support of its motion, the undisputed
facts upon which the Department relied for summary judgment were: (1) Plaintiff was
hired on a temporary basis to fill a ninety-day position; (2) Plaintiff willingly accepted
temporary and part-time employment and her exclusions from the Public Employee
Retirement Benefit Association (PERA); (3) Plaintiff was selected for a second
ninety-day part-time temporary position and again willingly accepted the temporary,
part-time position and exclusions from PERA benefits; (4) Plaintiff later accepted a
temporary position for an additional thirty days or until a permanent position was
filled; (5) Plaintiff was then hired on a full-time basis to fill an administrative position;
and (6) during her probationary period, Plaintiff was notified of her dismissal.
{6} 	In its summary judgment documents, the Department pointed to no particular
“constitutional claims.” Its “concise statement” of the issues was that the district court
“lack[ed] jurisdiction to consider Plaintiff’s claim as Plaintiff was a probationary
employee for all times pertinent to this litigation and therefore has no property interest
in 	continued 	employment 	with 	[the] 	Department[.]” 	The 	court 	granted 	the
Department’s motion for summary judgment based on findings that Plaintiff was a
probationary employee at the time her employment was terminated and that the

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Department was permitted to terminate Plaintiff’s employment without cause during
her probationary period.
{7} 	Plaintiff appeals from the summary judgment in the Department’s favor. On
appeal, Plaintiff argues that the district court erred in concluding that the protections
against discrimination and retaliation contained in the Human Rights Act do not apply
to probationary employees of the State of New Mexico who have been discharged
pursuant to the Personnel Act. We agree with Plaintiff.
DISCUSSION
{8} 	No factual issues are disputed. We review the grant of the motion for summary
judgment de novo. Beggs v. City of Portales, 2009-NMSC-023, ¶ 10, 146 N.M. 372,
210 P.3d 798. The critical issue is one of first impression. The issue as stated by the
Department is whether the district court had jurisdiction to consider discrimination
and retaliation claims asserted under the Human Rights Act when a probationary state
employee claimant who is discharged under the Personnel Act has no property interest
in continuing employment.
{9} 	The Department primarily bases its lack of jurisdiction position on two federal
cases involving claims under 42 U.S.C. § 1983 (1996). See Lighton v. Univ. of Utah,
209 F.3d 1213, 1221 (10th Cir. 2000) (stating that § 1983 claims are actionable only

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where the employee possesses a property or liberty interest in the employment);
Russillo v. Scarborough, 935 F.2d 1167, 1170, 1174 (10th Cir. 1991) (affirming the
district court’s grant of summary judgment in favor of the employer as to the
plaintiff’s § 1983 claim because, as an “at-will” employee, the plaintiff had no
protected property interest in his employment).
{10} 	Tied into Russillo, the Department relies on Lovato v. City of Albuquerque, 106
N.M. 287, 742 P.2d 499 (1987), a mandamus action seeking to require the defendant
to grant a hearing on the merits of the plaintiff’s transfer and pay reduction. 	The
language on which the Department relies from Lovato, and which was contained in
Russillo, 935 F.2d at 1170, is the statement that the plaintiff’s “employment status was
a protected property interest only if he had an express or implied right to continued
employment.” Lovato, 106 N.M. at 289-90, 742 P.2d at 501-02.
{11} 	In addition, the Department relies on Cockrell v. Board of Regents of N.M. State
University, 1999-NMCA-073, 127 N.M. 478, 983 P.2d 427. 	Cockrell involved a
claim for damages under 42 U.S.C. § 1983, a defense of qualified immunity, and an
issue of whether the plaintiff was deprived of a property interest without due process
of law when his employment was terminated. Id. ¶ 3. The Court in Cockrell stated:
The key dispute under the [employee] [m]anual is whether [the
employee] was still a probationary employee at the time of his

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termination. Probationary employees have no expectancy of continued
employment 	and 	may 	be 	terminated 	without 	cause 	and 	without
procedural protections such as notice and a hearing. Non-probationary
employees, on the other hand, do have such an expectancy in that they
can only be discharged for good cause and by way of due process
grievance procedures. There is no dispute that if [the employee] was still
a probationary employee at the time of his termination, then his
discharge satisfied the [m]anual. However, if by then, he was more than
a mere probationary employee, then it is equally settled that he did not
receive the protections owed him under the [m]anual. More importantly,
for purposes of this appeal, as a non-probationary employee [the
employee] would have an expectancy of continued employment which
cannot be eliminated arbitrarily without due process of law.
Id. 	The Department further relies on Clark v. Children, Youth & Families Dep’t,
1999-NMCA-114, 128 N.M. 18, 988 P.2d 888, a decision that solely involved a
probationary employee’s status under the Personnel Act, and also relying on Lovato,
106 N.M. at 289, 742 P.2d at 501, for the proposition that Plaintiff cannot state a
substantive claim for relief because she did not have a property interest in continuing
employment.
{12} 	The Department also attempts to squeeze in an argument that a probationary
state employee cannot state a claim under the Human Rights Act because the
Department’s termination action is based on a “statutory prohibition” created by the
Personnel Act and excluded from the definition of discriminatory practice under the
Human Rights Act. 	See § 28-1-7(A) (stating that it is an unlawful discriminatory

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practice for an employer “to discharge . . . or to discriminate . . . against any person
otherwise qualified because of race, age, religion, color, [or] national origin . . .”
unless the employer’s action is “based on a bona fide occupational qualification or
other statutory prohibition”). The statutory prohibition, according to the Department,
is the composite of provisions in the Personnel Act that distinguish an employee from
a probationary employee, that permit a probationary employee to be discharged
without cause, and that forbid the discharged probationary employee any appeal right.
Sections 10-9-3(I), (J); 1.7.2.8 NMAC (7/15/2005); 1.7.11.11 NMAC. 	Thus, the
Department argues that to allow a probationary employee to bring a cause of action
under the Human Rights Act is contrary to the Personnel Act’s limitation on a
probationary employee’s right to make a claim for wrongful discharge. According to
the Department, allowing a probationer to bring a cause of action under the Human
Rights 	Act 	is 	contrary 	to 	Section 	28-1-7(A)’s 	exclusion 	of 	“other 	statutory
prohibition” from the definition of “unlawful discriminatory practices[.]”
{13} 	We reject the Department’s arguments. The Department fails to present any
authority that persuades us that a jurisdictional bar exists under the circumstances
here. 	The case before us is not one solely under the Personnel Act. 	We are not
addressing a claim under § 1983, and § 1983 is not at issue. Neither constitutional

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violations nor liberty or property interests are at issue. Plaintiff’s claim is under the
Human Rights Act. No authority on which the Department relies persuades us that
a person in Plaintiff’s position must prove a property interest in continuing
employment as a jurisdictional prerequisite to assertion of a claim under the Human
Rights Act for discrimination and retaliation based on sex or age. 	Nor are we
presented with any authority to support the district court’s determination that Plaintiff
is barred from seeking relief under the Human Rights Act simply because the
Personnel Act permits discharge of a probationary state employee without cause.
{14} 	The Human Rights Act, like its federal analog, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2 (1991), was “designed to encourage employees to report
when they or others are being subjected to illegal workplace discrimination[.]”
Mitchell v. Zia Park, LLC, No. CV 10-1206 WPL/GBW, 2012 WL 310824, at *1, *9,
__ F. Supp. 2d__ (D.N.M. Feb. 1, 	2012). 	Owing to the similarities between the
Human Rights Act and Title VII, our Supreme Court has noted that our analysis of
claims under the Human Rights Act is guided by the federal courts’ interpretation of
unlawful discrimination under Title VII. Garcia-Montoya v. State Treasurer’s Office,
2001-NMSC-003, ¶ 39, 130 N.M. 25, 16 P.3d 1084.

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{15} 	We are guided by two federal cases in which the plaintiffs, who lacked a
property interest in employment, filed complaints alleging violations of both § 1983
and Title VII. 	See Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986);
Henderson v. City of New York, 818 F. Supp. 2d 573 (E.D.N.Y. July 20, 2011). In
each case, the respective courts determined that the plaintiff’s § 1983 claim could not
stand because the plaintiffs had no property interest in the employment, however, in
each case, the court permitted the plaintiff’s Title VII claim. See Walters, 803 F.2d
at 1140, 1142, 1144-45 (stating that because the plaintiff did not have a property
interest in the employment that he sought to obtain, the district court properly granted
the defendants’ motion for directed verdict on the plaintiff’s § 1983 claim and also
holding that the district court properly found that the plaintiff prevailed on his Title
VII discrimination and retaliation claims); Henderson, 818 F. Supp. 2d at 575-78,
583-84 (explaining that the plaintiff, who was a probationary employee when he
retired (which he claimed was a “constructive discharge”), unlike a permanent
employee he had no property interest in his position and therefore could not establish
a § 1983 claim, and further, denying the defendant’s motion for summary judgment
on the plaintiff’s Title VII retaliation claim, as well as the claims under the state’s and
city’s human rights acts).

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{16} 	Furthermore, we cannot give the Personnel Act an enforcement status superior
to the exceptionally important public policy against discrimination set out in the
Human Rights Act. 	We will not lend credence to a view that a probationary state
employee can be discharged based on the employee’s sex or age. 	See Bottijliso v.
Hutchison Fruit Co., 96 N.M. 789, 792, 635 P.3d 992, 995 (Ct. App. 1981) (stating
that under the doctrine of abusive discharge, “implied by operation of law as an
additional condition of the contract similar to the restrictions imposed by the Equal
Employment Opportunity provisions of the Civil Rights Act of 1964 . . . the interest
of the employer in the exercise of his unfettered right to terminate the employee under
a contract at will is balanced against the interest of the community in upholding its
laws in public policy”), overruled on other grounds by Boudar v. E.G. & G., Inc., 105
N.M. 151, 730 P.2d 454 (1986); see also Been v. N.M. Dep’t of Info. Tech., 815 F.
Supp. 2d 1222, 1236 n.5 (D.N.M. 2011) (stating that, in the face of the defendant’s
argument that the plaintiff was a probationer under the Personnel Act, “[a]lthough an
employee at will may be terminated without cause, she is still entitled to the
protections of Title VII and the [Human Rights Act]”); Vigil v. Arzola, 102 N.M. 682,
688-89, 699 P.2d 613, 619-20 (Ct. App. 1983) (stating that “a cause of action should
exist when the discharge of an employee contravenes some clear mandate of public

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policy” and that the Human Rights Act falls within the category of “clearly mandated
public policy” (internal quotation marks and citation omitted)), overruled on other
grounds by Chavez v. Manville Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989).
The Human Rights Act forbids an employer to discriminate against “any person
otherwise qualified[.]” Section 28-1-7(A).
{17} 	We hold that the district court erred in concluding that, owing to Plaintiff’s
status as a probationary employee under the Personnel Act, her claim under the
Human Rights Act could not stand because the Department “was permitted to
terminate [her] employment without cause[.]” 	On remand, the district court shall
determine whether Plaintiff can establish a prima facie case of discrimination and
retaliation pursuant to the Human Rights Act and proceed under the analytical
framework as discussed in Garcia-Montoya, 2001-NMSC-003, ¶ 39, and Juneau v.
Intel Corp., 2006-NMSC-002, ¶¶ 9, 23, 139 N.M. 12, 127 P.3d 548, to resolve the
claims on their merit.
{18} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

J. MILES HANISEE, Judge

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