Doe v. Santa Fe Public Schools et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN DOE,
Plaintiff,
v. 	Civ. No. 23-1025 GBW/JFR
SANTA FE PUBLIC SCHOOLS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Archdiocese Defendants’1 Motion for
Summary Judgment on Count VIII of Plaintiff’s Second Amended Complaint (doc. 186),
Defendant Robin Chavez’s Renewed Motion for Summary Judgment on Count VI of
Plaintiff’s Second Amended Complaint (doc. 187), and Plaintiff’s Motion for Summary
Judgment Against the Archdiocese Defendants as to Count VIII of the Second Amended
Complaint (doc. 204).
I. 	Background
This action was filed in the First Judicial District Court on August 22, 2023, and
removed on November 20, 2023. Docs. 1, 1-1. The operative Second Amended
1 “Archdiocese Defendants” refers collectively to Defendants Roman Catholic Church of the
Archdiocese of Santa Fe, Santo Niño Regional Catholic School, San Isidro Parish, Cristo Rey Parish,
Shrine of Our Lady of Guadalupe Parish, St. Anthony of Padua Parish, St. Anne’s Parish, St. John the
Baptist Parish, Santa Maria de la Paz Catholic Community Parish, and the Cathedral Basilica of St. Francis
of Assisi Parish. See doc. 82 at ¶¶ 11–20.
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Complaint was filed June 4, 2024. Doc. 82. All claims arise out of Plaintiff’s sexual
abuse by Defendant Robert Apodaca while Plaintiff was a student at Gonzales
Community School (Gonzales) in 2018–2019, and a part-time employee at Santa Niño
Regional Catholic School (Santa Niño) in summer 2020.
The Archdiocese Defendants and Chavez previously moved for summary
judgment. Docs. 127, 131. The Court granted Plaintiff’s Rule 56(d) motion for limited
additional discovery as to Counts VI and VIII and denied both motions without
prejudice on those claims.2 Doc. 175 at 26. The Court held that if Plaintiff adduced
evidence of all the probable facts identified in his Rule 56(d) declarations, those facts
could create a genuine issue about whether Chavez knew or reasonably should have
known the risk posed by Apodaca. Id. at 15, 25.
Following the additional discovery, the Archdiocese Defendants and Chavez
filed renewed summary judgment motions. Docs. 186, 187. Plaintiff filed a cross motion
for summary judgment on Count VIII. Doc. 204. All three motions are now before the
Court.
II. 	Undisputed Facts
Based on the parties’ briefing and the record as a whole, the Court finds the
following material facts are undisputed for the purposes of summary judgment: 3
2 The Court granted Chavez’s summary judgment motion as to Count II. Doc. 175 at 26.
3 “AUMF” refers to the Archdiocese Defendants’ Undisputed Material Facts (doc. 186 at 3–5),
“CUMF” to Chavez’s Undisputed Material Facts (doc. 187 at 2–6), and “PUMF” to Plaintiff’s Undisputed
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1. 	Robert Apodaca began working for Santa Fe Public Schools (SFPS) in 2012
as a nurse aide. AUMF 1; PUMF 6; doc. 131-1.
2. 	Apodaca worked at Gonzales during some or all of the 2017–2018, 2018–
2019, and 2019–2020 school years as a nurse aide. AUMF 1; doc. 131-1.
3. 	Robin Chavez was the assistant principal at Gonzales during the 2017–
2018 and 2018–2019 school years. AUMF 2; CUMF 1.
4. 	Plaintiff attended Gonzales as a student in seventh grade during the 2017–
2018 school year, and in eighth grade during the 2018–2019 school year. Doc. 211-14 at ¶
3.
5. 	While Plaintiff was a student at Gonzales, Apodaca sexually abused him
in the nurse’s office almost daily. PUMF 4; doc. 211-1 at ¶¶ 13, 29.
6. 	Chavez’s employment at Gonzales ended in June 2019, at the end of the
2018–2019 school year. CUMF 7; AUMF 3.
7. 	Chavez began working at Santo Niño on July 1, 2019, as the principal.
AUMF 3; doc. 193-1 at 3, 17:13–20.
8. 	Soon after Chavez began working at Santo Niño, she invited Apodaca to
apply for a position administering the after-school program. Doc. 193-1 at 5, 23:13–22.
Material Facts (doc. 204 at 2–14). Where the Court cites one of the parties’ material facts, it does so
pursuant to Rule 56(e)(2) because the fact in question was not specifically disputed. See Fed. R. Civ. P.
56(e)(2). Where the Court cites to evidence in the record, it does so pursuant to Rule 56(c)(3), which
permits consideration of “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
4 The originally submitted version of Plaintiff’s declaration was unsigned. See doc. 194-3. The
error was subsequently corrected and a signed version filed on the docket. See docs. 211, 211-1.
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9. 	In August 2019, Apodaca completed a written application for employment
with the after-school care program at Santo Niño. Doc. 131-4.
10. 	On August 14, 2019, Santo Niño obtained a Background Screening Report
on Apodaca, which included results from the National Criminal Database and came
back “clear.” Doc. 131-6.
11. 	In August 2019, Santo Niño sent reference requests to the three references
listed on Apodaca’s application: Anita Hett, Apodaca’s direct supervisor at SFPS;
Heather Wolf-Espinoza, a “co-worker” at Gonzales; and Randy Saunders, Apodaca’s
supervisor at Boy Scouts of America, where Apodaca was a seasonal employee. Doc.
194-8 at 2–4. All three references recommended Apodaca “with enthusiasm.” Id.
12. 	In fall 2019, Apodaca was hired at Santo Niño as a health aide, also
referred to as the “school nurse,” and as director of the after-school program. PUMF 3;
doc. 193-1 at 6, 28:6–9; doc. 204-3.
13. 	In spring 2020, Apodaca was given a new position as director of the 2020
Santo Niño summer camp. PUMF 3; doc. 193-1 at 13, 55:10–17.
14. 	On May 19, 2020, Santo Niño obtained a background check of Apodaca
from the New Mexico Children, Youth and Families Department (CYFD), which stated
that Apodaca was “eligible to provide care in accordance with Title 8, Chapter 8, Part 3,
Governing Background Checks and Employment History Verification.” Doc. 131-8.
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15. 	In June through July 2020, Plaintiff worked as a seasonal teen employee in
Santo Niño’s summer program. AUMF 7; doc. 131-9.
16. 	Plaintiff did not report sexual abuse or other misconduct by Apodaca to
anyone else at Santo Niño while he was there. AUMF 7; doc. 131-10.
17. 	On April 26, 2021, a Santo Niño employee reported that she had seen
Apodaca in a locked room with students, one of whom was sitting on his lap. AUMF 8;
doc. 131-12.
18. 	On April 27, 2021, Apodaca was placed on administrative leave and did
not return to work at Santo Niño at any time thereafter. AUMF 8; doc. 131-12 at 2.
19. 	On August 18, 2025, Apodaca was found guilty of one count criminal
sexual contact of a minor in the second degree (child under 13) and one count criminal
sexual contact of a minor in the third degree (child under 13), and on September 19,
2025, he was sentenced to a total term of fifteen years’ imprisonment. Doc. 193-7 at 15.
III. 	Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears the initial burden of showing “that there is an absence of evidence to
support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
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non-moving party is then required to designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); see also Celotex, 477 U.S. at 324. “An issue is ‘genuine’ if
there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way. An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848,
851 (10th Cir. 2003) (internal citations omitted).
In applying this standard, the Court must draw all “reasonable inferences” in
favor of the non-moving party. Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th
Cir. 1998). Summary judgment is appropriate only “where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
IV. 	Defendant Chavez’s Motion
Defendant Robin Chavez moves for summary judgment on Count VI, which
asserts a tort claim under NMSA § 41-4-6, because Plaintiff cannot show she was aware
of the “dangerous condition” created by Apodaca’s presence at Gonzales. See generally
doc. 187. Plaintiff argues there is a genuine dispute about whether Chavez knew or
should have known of Apodaca’s sexual misconduct. See generally doc. 208.
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A. 	Evidence of Chavez’s Knowledge
The parties agree the motion turns largely on Chavez’s knowledge of Apodaca’s
misconduct. The relevant evidence,5 viewed in the light most favorable to Plaintiff, is as
follows.
a. 	Visits to the Nurse’s Office
Chavez was aware that an excessive number of students were visiting the nurse’s
office, and that certain students were visiting the nurse’s office frequently. Anita Hett,
the lead nurse at SFPS and Apodaca’s direct supervisor, testified at deposition that she
received a complaint from the administration about “a lot of students going to the
health office.” Doc. 193-2 at 13, 84:7–85:6. She “took it as a crowd control issue” and
told Apodaca to make sure every student had a pass because “[w]e never want a bunch
of kids coming into the nurse’s office at one time.” Id. Although she could not
remember “for sure,” Hett believed it was Chavez who reported the issue to her. Id.
5 Excluded from this summary are numerous immaterial facts. For example, while considerable
argument is dedicated to establishing that Apodaca and Chavez were friends or friendly with one
another, the Court finds the dispute is genuine but not material. No reasonable inference of Chavez’s
awareness that Apodaca was a child sexual predator, or her willingness to ignore the same, arises from
the fact that the two of them were friends. Some of the other facts asserted by Plaintiff involve yet more
tenuous inferences. For example, Plaintiff attaches an email with the subject line “When to see the
Nurse?” in which Apodaca wrote, inter alia: “One day i [sic] will write a book about the stuff i [sic] see in
the Health Office. It’s going to be called ‘Behind the Band-Aid- The tail [sic] of many ailments.” Doc. 193-
25. Christopher Lopez, Plaintiff’s teacher, responded: “Tail . . . hahahahahahaha.” Id. Plaintiff suggests
that because “tail” is “a well-known slang term for sexual intercourse or a sexual partner, it is reasonable
to infer that Lopez found humor in Apodaca’s error because it spoke to his open and obvious grooming.”
Doc. 208 at 6 n.2. Under no remotely plausible construction can it be suggested that Lopez recognized
Apodaca’s spelling error—which was accompanied by numerous other errors—as a humorous reference
to actual, ongoing sexual abuse of minor students at Gonzales.
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She testified:
We don’t like to have crowds of students coming all together because,
usually, it’s one student who’s injured or ill. But oftentimes, kids want to
come en masse to the nurse’s office. And so that was something that was a
problem district-wide with students just coming into the nurse’s office en
masse. And to this day, I’m sure it’s a problem.
Doc. 186-5 at 2, 44:14–21.
Rebecca Vollmer, a school secretary, testified that she noticed one particular
student going to the nurse’s office a lot. Doc. 194-1 at 9–11, 32:24–34:12. When Vollmer
mentioned this to the student’s stepfather, he stated that he was aware and Apodaca
was a family friend. Id. Vollmer testified in 2024 that she “want[ed] to say” she
reported the discussion to Chavez, id. at 20, 72:8–10, though in 2025 she testified she did
not remember whether she told Chavez, id. at 11, 34:22–25. She thought it was
important for the administration to know because “the student wasn’t in class and why
was the student in the nurse’s office when they should be in class.” Id. at 12, 35:22–25.
In addition to the general issue of frequent visits to the nurse’s office, there is
evidence that Chavez knew Plaintiff, specifically, was a frequent visitor. Plaintiff states
in his declaration that Chavez saw him at the nurse’s office on “many mornings,”
because Plaintiff went there “almost every day” and Chavez was often in the nurse’s
office when he arrived. Doc. 211-1 at ¶¶ 13, 17, 34. She “would walk out into the hall as
soon as [Plaintiff] went in and the door would be closed behind her.” Id. at ¶ 35. In
addition, Chavez sometimes observed Plaintiff standing outside the nurse’s office
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knocking on the door; when she came by, Plaintiff would stop knocking and “hurry
along.” Id. at ¶ 28.
b. 	Water Pouring Incident
Hett testified that she recalled receiving a complaint from either Chavez or
Candice Flint, 6 the principal, about an incident on the playground where Apodaca
“poured water or was going to pour water over a student’s head, but the student
thought it was orange juice because it was in an orange juice container.” Doc. 193-2 at
10; see also id. at 12. Hett testified that Apodaca said it was “a joke,” but the child “was
upset about it.” Doc. 193-2 at 12.
c. 	Locked Door Incident(s)
The parties dispute Chavez’s knowledge of an incident, or incidents, where
Apodaca was found in the nurse’s office with the door locked and a student inside.
Michelle Romero, a security guard at Gonzales during the 2018–2019 and 2019–2020
school years, stated by affidavit that on one occasion she was called to the main office by
Candice Flint and “told to go check the door to the nurse’s office.” Doc. 194-4 at ¶ 18.
Romero found the door locked, the lights off, and the blinds drawn, and no one
answered when she knocked. Id. After reporting back to Flint, Romero walked past the
6 In 2024, Hett testified that she “[thought] [the report] was from Robin . . . Chavez.” Doc. 193-2 at
12. In her subsequent deposition in November 2025, she first stated she did not “recall whether it was
from Robin Chavez . . . or Candice Flint,” id. at 10, but when reminded of her prior testimony, agreed, “I
think it was Robin Chavez,” id. In any event, for summary judgment purposes, the Court reasonably
infers Chavez knew of the incident.
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nurse’s office again and observed that Apodaca “opened the door and a little boy came
out.” Id. at ¶ 20. The boy “looked scared and sad.” Id. Romero went back to Flint to
report what she saw and stated that she was “worried.” Id. at ¶ 21. Romero thought
she should write a report, but Flint told her not to. Id.
Flint testified at deposition that on November 1, 2019, there was a “locked door
incident” involving Apodaca. Doc. 193-13 at 6, 38:21–22. According to her version of
events, “[t]he security guard” told Rebecca Vollmer, who in turn told Flint, that
“Apodaca might be in the nurse’s office with a locked door, and there might be students
in there.” Id. at 6, 39:1–9. Flint “immediately” grabbed her keys, went to the nurse’s
office, unlocked the door, and walked in. Id. at 6, 39:11–13. She found Apodaca
standing near his desk and a student sitting in one of the chairs. Id. at 10, 75:17–18.
Flint took Apodaca back to her office and had a discussion with Apodaca and
Christopher Lopez, the assistant principal. Id. at 10, 75:20–76:6. Flint followed up with
an email to Apodaca on November 1, 2019, which related “expectations for your
behavior” and stated: “Do not meet alone with a student in a locked room.” Doc. 193-
17. Flint stated this incident was “the first occasion that anything of possible
misconduct was reported to [her]” involving Apodaca. Doc. 193-13 at 6, 40:1–2.
Vollmer testified at deposition in 2025 that she recalled an incident where
Romero reported Apodaca was in the nurse’s office with a boy. Doc. 186-4 at 3, 42:23–
43:4. She was reminded by counsel of prior deposition testimony that she relayed
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Romero’s report to “the principals” and that this “included Ms. Chavez.” 7 Id. at 3, 43:5–
11. Vollmer responded: “I don’t recall who it was told to. I don’t recall if it was told to
Dr. Flint or Ms. Chavez or both.” Id. at 3, 43:13–15. She testified that she did not recall
who was assistant principal at the time. Id. at 4, 51:24–52:3.
Allicia Chavez,8 the other school secretary, testified that she recalled Apodaca
being “spoken to by the principals” about keeping the door locked when a student was
in the nurse’s office. Doc. 193-12 at 11, 62:12–22. She stated the conversation took place
in Flint’s office and Chavez was present. Id. at 11, 63:1–3. The door was closed and
Allicia Chavez did not know “what the conversation was.” Id. at 11, 62:21–22.
Additionally, Allicia Chavez recalled an incident where Romero came in and said the
nurse’s office door was closed with a student inside. Id. at 12, 66:1–10. Allicia Chavez
told Romero to “go tell the principal.” Id. at 12, 66:10. In response to questioning,
Allicia Chavez explained that “the principal” meant “Dr. Flint and Robin Chavez.” Id.
at 12, 66:20–22. 	However, she did not recall whether both Flint and Chavez were
present at the time. Id. at 12, 66:23–25.
It is undisputed that on November 1, 2019, the date documented in Flint’s email,
Chavez no longer worked at Gonzales. In fact, she had ceased working at Gonzales in
7 Surprisingly, the referenced portion of Vollmer’s prior deposition is not included in Plaintiff’s
exhibit, see doc. 194-1 at 19–20, and the Court is not aware that it was filed elsewhere on the docket.
8 To avoid confusion, Allicia Chavez is referred to by her full name. All references to “Chavez”
are to Defendant Robin Chavez.
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June 2019 at the end of the previous school year. CUMF 7; AUMF 3. As there is no
evidence to suggest that she was informed of it outside of her employment by Gonzales,
there is no basis on which to impute to her knowledge of the November incident.
However, Plaintiff posits that there were at least two separate “locked door” incidents,
one of which occurred while Chavez was assistant principal. See doc. 208 at 4 & n.1.
This version of events leaves some puzzling inconsistencies—such as why, for example,
Romero’s declaration describes only one incident. But it is not the Court’s role to weigh
the evidence on summary judgment. See Anderson, 477 U.S. at 249. Therefore, drawing
all reasonable inferences in Plaintiff’s favor, the Court concludes there is evidence from
which a reasonable juror could find that Chavez was aware of an incident where
Apodaca was found in the nurse’s office with the door locked and a student inside.
d. 	Driving Plaintiff9 to and from School
Plaintiff’s declaration states that Apodaca drove him to and from school and that
“Ms. Chavez must have known I was leaving with Robert because the administrative
office was small and everyone could see and hear everything that happened in it.” Doc.
211-1 at ¶ 21. Vollmer also testified that on one occasion, she saw Apodaca leaving with
Plaintiff at the end of the day, and she informed Apodaca it was something he could
9 Plaintiff’s brief states as an undisputed material fact that Apodaca also drove another boy
named J.L. home from school. Doc. 208 at 6. But it appears that the evidence cited in support of this
proposition (“Doc. 193-12, (Tr. 3/20/24, Vol. 2, 69:23-25)”) does not exist on the record before the Court, as
page 69 is not included in the exhibit. See generally doc. 193-12. The Court therefore cannot consider it on
summary judgment. In any case, the inclusion of similar facts for an additional student would not alter
the Court’s determination.
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“get in trouble for.” Doc. 186-4 at 2, 31:2–12. Vollmer testified she gave him this
warning because it was her understanding that employees were “not supposed to take
students in your vehicle” due to “mainly, the liability.” Id. at 2, 31:19–22. Apodaca told
her that it was approved by Plaintiff’s parent. 10 Id. at 2, 31: 13–16. The Court finds it is
reasonable to infer, on summary judgment, that Chavez was aware that Apodaca was
transporting Plaintiff with the apparent approval of his parents.
e. 	Flint’s Knowledge
The record, viewed in the light most favorable to Plaintiff, shows Flint was aware
of several indications of potential sexual misconduct. Most notably, there is evidence
that Flint was aware of an incident during lunch where Apodaca made sexual gestures
and sounds behind a student. Robert Padilla, a custodian at Gonzales during the 2018–
2019 school year, observed Apodaca walking behind “one of the kids” and “saying
‘umm’ and . . . making . . . a gesture, like he wanted to hump the person from behind.”
Doc. 193-10 at 4, 14:1–6. Padilla reported the incident to Elaine Wood, the head
custodian, then went to the principal’s office and talked to Flint one-on-one. Id. at 4,
15:22–16:4. Flint said “she would take care of it” and did not ask Padilla to write a
10 Plaintiff’s declaration does not deny, indeed it does not address, that his parent(s) knew about
and approved Apodaca’s driving him to and from school. However, Apodaca’s response that a parent
“approved it” accords with the Amended Complaint, which alleges that Apodaca “would provide
transportation from school to Plaintiff’s grandparent’s home when Plaintiff’s mother was unavailable”
and “would transport Plaintiff to baseball practice.” Doc. 82 at ¶ 141. Because there is no contrary
evidence of record, the Court finds there is no genuine dispute that Plaintiff’s parent gave permission for
Apodaca to transport him in his personal vehicle.
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report. Id. at 4, 16:21–24. There is no evidence that Flint discussed the incident with
Chavez, or that either Padilla or Wood reported it to Chavez. See id.; doc. 193-9 at 7,
39:16–20. Indeed, there is no evidence that anyone else was made aware of the incident.
Romero’s affidavit states that she, too, raised concerns of possible inappropriate
conduct with Flint. She reported that she “was worried about Robert’s relationship
with little boys,” but was “repeatedly told that it was not my business and that I should
go about my job.” Doc. 194-4 at ¶ 23. Romero “understood the message to be that if I
wanted to keep working at Gonzales, I needed to drop it.” Id. She felt that her worries
were “swept under the rug” by Flint. Id. at ¶ 25. There is no evidence from either
Romero or Flint that Romero’s concern about sexual abuse was ever communicated to
Chavez.
Plaintiff argues that Flint’s knowledge can be attributed to Chavez because they
worked closely together, and it is therefore unbelievable that Flint would not have
notified Chavez of “reports of pedophilia by a staff member.” Doc. 208 at 15–16. The
Court disagrees. Importantly, the reports received by Flint fell far short of alleging
“pedophilia.” Given the actual content of the reports, Flint and Chavez’s working
relationship, standing alone, is insufficient to create a reasonable inference that Flint
shared all of her knowledge about Apodaca’s conduct with Chavez. In the absence of
supporting evidence, the Court finds Plaintiff has made no genuine showing that
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Chavez was aware of these reports.11
f. 	Physical Affection with Students
There is evidence that Apodaca sometimes linked arms with students around the
school and showed similar signs of physical affection. Plaintiff states in his declaration:
“Robert showed physical affection towards me on the Gonzales campus in public, like
putting his arm around me in a hug and walking side-by-side.” Doc. 211-1 at ¶ 22.
Romero likewise stated in her affidavit that Apodaca “would walk around school
grounds with arms physically locked with a young boy.” Doc. 194-4 at ¶ 6.
Absent from the record, however, is any evidence that Chavez actually observed
or was informed about this behavior. Plaintiff’s declaration states: “I know it must have
been obvious to all the other adults at Gonzales and Santo Niño, including . . . Ms.
Chavez.” Doc. 211-1 at ¶ 45. He does not state that Chavez was actually present at any
time when Apodaca put his arm around Plaintiff, nor—critically—does he provide any
information about the frequency of this conduct. If, for example, Plaintiff’s declaration
stated that Apodaca put his arm around Plaintiff daily for extended periods of time, the
11 Hett’s knowledge also cannot properly be attributed to Chavez. Plaintiff’s brief lists as a
material fact that Esther Vigil, a nurse aide in training, saw Apodaca leave the office with a boy to
examine his genitals. See doc. 208 at 4–5. The boy told Apodaca he had something “down there” on his
penis, and Apodaca said, “Let’s go take a look at it.” Doc. 193-14 at ¶ 10, 12–13. Vigil told Apodaca he
could not examine the boy’s genitals, and Apodaca responded: “Yes I can. I’m a nurse.” Id. at ¶ 14. He
then left the office with the boy for ten or fifteen minutes. Id. Vigil stated she “raised [her] concerns with
Anita Hett” but did not believe anything was done. Id. at ¶ 25. Plaintiff does not argue that Chavez was
aware of this incident, and there is no evidence that she was. It is therefore immaterial to the question of
Chavez’s knowledge.
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evidence might be sufficient to bridge the gap between pure conjecture and reasonable
inference. But Plaintiff makes no representation about the frequency or length of these
physical displays of affection. On this point, it is telling that Elaine Wood, the head
custodian who had an opportunity to observe Apodaca around students and stated that
she was concerned about his behavior, did not observe any “instances of physical
closeness” such as “arms around each other.” Doc. 193-9 at 3, 17:10–13. It therefore
cannot reasonably be inferred, based solely on Plaintiff’s conclusory statement that it
“must have been obvious,” doc. 211-1 at ¶ 45, that Chavez was aware of the physical
contact between Apodaca and Plaintiff or other students.
B. 	Liability under Section 41-4-6
NMSA § 41-4-6, commonly called the “building waiver,” waives governmental
immunity for
damages resulting from bodily injury, wrongful death or property
damage caused by the negligence of public employees while acting within
the scope of their duties in the operation or maintenance of any building,
public park, machinery, equipment or furnishings.
Id. § 41-4-6(A). The waiver “is not limited to injuries resulting from a physical defect on
the premises.” Encinias v. Whitener Law Firm, P.A., 310 P.3d 611, 616 (N.M. 2013).
Rather, New Mexico courts “interpret Section 41-4-6(A) broadly to waive immunity
‘where due to the alleged negligence of public employees an injury arises from an
unsafe, dangerous, or defective condition on property owned and operated by the
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government.’” Id. at 616–17 (quoting Castillo v. Cnty. of Santa Fe, 755 P.2d 48, 49 (N.M.
1988)).
Liability under the New Mexico Tort Claims Act (NMTCA) is “based upon the
traditional tort concepts of duty and the reasonably prudent person’s standard of care
in the performance of that duty.” NMSA § 41-4-2(B). Accordingly, building waiver
claims are evaluated under a common law theory of premises liability. Sanders v. N.M.
Corr. Dep’t, 562 P.3d 572, 582 (N.M. 2024). “[T]he facts of a case will support a waiver . .
. if they would support a finding of liability against a private property owner.”
Encinias, 310 P.3d at 618. New Mexico law imposes a duty on property owners to
protect visitors from “the harmful acts of third persons if, by the exercise of reasonable
care, the proprietor could have discovered that such acts were being done or about to be
done, and could have protected against the injury by controlling the conduct of the
other patron.” Id. (quoting Coca v. Arceo, 376 P.2d 970, 973 (N.M. 1962)); see also Valdez v.
Warner, 742 P.2d 517, 519 (N.M. Ct. App. 1987) (“The term ‘third persons’ includes
employees acting outside the scope of their employment.” (citations omitted)).
When assessing claims under § 41-4-6, the court determines duty as a threshold
matter. Sanders, 562 P.3d at 584 (citing Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 326
P.3d 465, 474 (N.M. 2014)). If the court finds the government had a duty to the plaintiff,
it then determines the applicability of the building waiver to the established facts. Id. at
584–85. The plaintiff must show either (1) “an operational failure to respond to or
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discover conditions which can pose a danger to a class of persons involved in or
affected by an activity on the property,” or (2) “a failure to create and/or to implement
reasonably appropriate safety policies and operational procedures.” Id. at 583 (quoting
Gebler v. Valencia Reg’l Emergency Commc’ns Ctr., 535 P.3d 763, 769 (N.M. Ct. App. 2023)).
“These two scenarios are not mutually exclusive and the facts alleged by a plaintiff can
include characteristics of both.” Vanhorn v. Carlsbad Mun. Sch. Dist., 545 P.3d 1182, 1187
(N.M. Ct. App. 2024).
There is no doubt that Chavez, as a school administrator, owed Plaintiff a duty of
reasonable care, and there is likewise no doubt that Apodaca’s presence created a
dangerous condition for a class of persons at Gonzales. See doc. 175 at 16–17. The
dispositive question is whether Chavez knew or should have known about the danger
Apodaca posed. While the government “does not ‘have the duty to do everything that
might be done,’” public employees “can be liable for the violent acts of a third party if
the government reasonably should have discovered and could have prevented the
incident.” Encinias, 310 P.3d at 619 (quoting NMSA § 41-4-2(A)). In Encinias, the
plaintiff was beaten by a classmate in an area that the school had cordoned off for food
vendors. Id. at 614. Because the plaintiff produced an affidavit from an assistant
principal stating that the area was considered a “hot zone” with a history of student
violence, the New Mexico Supreme Court found there was a genuine issue of material
fact as to the school’s awareness of the danger. Id. at 617–18. The court emphasized
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that “a single act of student-on-student violence does not render the premises unsafe,”
but rather, there must be “facts to suggest that the school, in the exercise of ordinary
care, could have discovered that the violence was about to occur.” Id. at 617.
Following the same principles, courts have consistently held that liability under §
41-4-6 is appropriate only if the employee “knew or should have known of the danger
posed by the condition.” Green v. Padilla, 484 F. Supp. 3d 1098, 1147 (D.N.M. 2020); see,
e.g., Vanhorn, 545 P.3d at 1188 (finding there was “evidence that the school knew or
should have known that their failure to follow policies created a condition that was
inherently dangerous to physically limited students” when the plaintiff was allowed
out during recess after surgery, in violation of doctor’s orders and school policy);
Kreutzer v. Aldo Leopold High Sch., 409 P.3d 930, 944 (N.M. Ct. App. 2017) (finding no
waiver under § 41-4-6(A) when one student attacked another because, inter alia,
“Plaintiffs did not adduce competent evidence . . . that ALHS knew or should have
known that [the attacker] had a propensity for violence”); Callaway v. N.M. Dep’t of
Corr., 875 P.2d 393, 399 (N.M. Ct. App. 1994) (“Plaintiff has stated a claim sufficient to
waive immunity under Section 41-4-6 because Defendants knew or should have known
that roaming gang members with a known propensity for violence had access to
potential weapons in the recreation area . . . and that the danger to other inmates was
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foreseeable.”).12
On careful review of the record detailed above, the Court finds there is
insufficient evidence that Chavez knew or should have known of Apodaca’s propensity
for sexual misconduct. The evidence supports Chavez’s knowledge of the following
facts: (1) a number of students, including Plaintiff, visited nurse’s office frequently; (2) a
student complained about a prank where Apodaca poured or pretended to pour water
on his head; (3) Apodaca regularly drove Plaintiff to and from school with a parent’s
permission; and (4) on one occasion, Apodaca was talked to about having the door to
the nurse’s office locked with a student inside. The first three points are largely
immaterial to Chavez’s awareness that Apodaca was dangerous. The record shows that
the frequent visits to the nurse’s office were viewed as a “crowd control” issue and a
class attendance issue, and that the problem was typical district-wide. Doc. 186-5 at 2,
44:14–21; doc. 193-2 at 13, 84:11–14; doc. 194-1 at 12, 35:22–25. The water-pouring prank,
though perhaps inappropriate and unprofessional as a general matter, has no
12 The parties devote some argument to whether, and how, § 41-4-6’s waiver applies to claims of
negligent supervision. See doc. 187 at 11–12; doc. 208 at 17–18; doc. 214 at 10. “[A] claim of negligent
supervision, standing alone, is not sufficient to bring a cause of action within the waiver of immunity
created by Section 41-4-6.” Vanhorn v. Carlsbad Mun. Sch. Dist., 545 P.3d 1182, 1185 (N.M. Ct. App. 2024)
(quotation and citation omitted)). To fall within the scope of the building waiver, the defendant’s
negligent conduct must “itself . . . create the unsafe conditions.” Espinoza v. Town of Taos, 905 P.2d 718,
722 (N.M. 1995). In other words, as this Court has previously held, the premises must be “reasonably
known to be dangerous in the absence of the supervision that the plaintiff claimed was lacking.” T.R. v.
Howard, Civ. No. 20-276 GBW/JHR, 2023 U.S. Dist. LEXIS 198309, at *61 (D.N.M. Nov. 3, 2023). The Court
therefore concludes—and the parties, based on their briefing, seem ultimately to agree—that the question
of Chavez’s negligent supervision is subsumed in the question whether she knew or should have known
that Apodaca’s presence was a dangerous condition.
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reasonable connection with a propensity for sexual misconduct. And there is no
evidence that driving a student to and from school with a parent’s permission was
against school policy or otherwise inappropriate, 13 or should have led Chavez to suspect
that Apodaca was abusing students. Critically, there is no evidence that any concerns
about sexual misconduct were ever raised with Chavez, or that she ever observed any
inappropriate physical contact or language by Apodaca with students.
Thus, for supporting evidence of knowledge, the Court is left with the fact that
Apodaca and a student were in the nurse’s office with the door locked. While Flint’s
testimony establishes that it was inappropriate for the door to be locked, see doc. 193-13
at 10, 76:17–77:4, there is no evidence that Apodaca was observed doing anything
inappropriate with the student, that the student complained of misconduct, or that any
concerns or suspicions of sexual misconduct were raised or expressed to Chavez. The
Court finds this isolated incident, standing alone, was insufficient to put Chavez on
reasonable notice of Apodaca’s propensity for sexual misconduct.14
13 Plaintiff cites NMAC 6.60.9.9 for the proposition that “[s]taff taking boys from school . . . is a
violation of regulatory law.” Doc. 192 at 14. The cited code applies by its terms to “licensed educators,”
for whom it establishes standards of professional conduct. NMAC 6.60.9.9(A)(1). Plaintiff provides no
evidence that Apodaca was a licensed educator. The Court therefore finds the regulation inapplicable.
14 So finding, the Court notes no inconsistency with its prior ruling under Rule 56(d). At that
time, Plaintiff conceded he could not show Chavez’s knowledge of a “dangerous condition” on the
available record, but identified a list of probable facts to be obtained through discovery. Doc. 157 at 11.
These included—most compellingly—Chavez’s awareness that Apodaca “had boys sit in his lap,” doc.
157-1 at ¶ 30, which has not been shown. The Court notes, additionally, that it does not appear any
additional evidence of Chavez’s knowledge was uncovered through the limited additional discovery;
rather, Plaintiff relies now on evidence that was previously available. Nevertheless, despite the prior
representation of Plaintiff’s counsel that this evidence was insufficient to survive summary judgment, see
doc. 157, the Court has evaluated the evidence thoroughly and on its merits.
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Plaintiff also argues Chavez is liable under § 41-4-6 because she “fail[ed] to
implement school policies designed to protect students from sexual misconduct, abuse,
assault and harassment by employees of the school.” Doc. 208 at 22. The cited policies
generally state that “[t]he principal” is responsible for the organization and
administration of the school; that various forms of sexual harassment are prohibited,
including “inappropriate touching,” verbal abuse, and sexual innuendo;
and that the District shall communicate the sexual harassment policy to employees and
students and shall “investigate allegations of sexual harassment/misconduct in a timely
and thorough way.” Doc. 208-4 at 1–5. Whether Chavez violated the majority of these
directives depends, of course, on whether she had any knowledge of Apodaca’s sexual
harassment or misconduct. Because the Court finds there is insufficient evidence to
conclude that she did, the alleged violation of policy does not raise a genuine issue.
Arguably, a failure to adequately communicate policies against sexual harassment
could support liability if, because of that failing, sexual harassment was not properly
reported to management. However, there is insufficient evidence in the record to
establish that failures to report improper conduct by Apodaca permitted additional
misconduct. Indeed, it appears that Flint, the principal and Chavez’s superior at
Gonzales, was aware of each discrete inappropriate incident relied upon by Plaintiff.
Consequently, there is insufficient evidence to support liability for an alleged violation
of policy under a theory that Chavez failed to communicate the sexual harassment
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policy.
Finally, Plaintiff asserts Chavez violated SFPS Policy 222, which prohibits
employees from “receiv[ing] compensation for private instruction or tutoring of a
student” unless approved in writing. Doc. 208-4 at 5. Plaintiff proffers no evidence that
Apodaca tutored students for paid compensation; the cited exhibits state only that he
“mentored” students and that he “help[ed] [Plaintiff] with [his] homework and
schoolwork.” Doc. 194-3 at ¶ 16; see doc. 208 at 6. Even if such evidence existed, the
Court finds there is no logical nexus between the violation of a policy against paid
tutoring and a propensity to sexually molest children. The element of proximate cause
therefore cannot be established.
C. 	Credibility
Plaintiff argues that summary judgment should be denied based on Chavez’s
lack of credibility as a witness. He asserts that “Chavez’s position rests entirely upon
her own credibility and thus a genuine issue of fact is created by her lack of credibility.”
Doc. 208 at 14 (citing Helvie v. Jenkins, 66 F.4th 1227 (10th Cir. 2023)); see also doc. 192 at
33. In support, Plaintiff recites a litany of “specific facts” which allegedly “call Chavez’s
credibility into question and thus preclude summary judgment in her favor.” Doc. 208
at 14. These examples include: (1) false deposition testimony that she never allowed
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Apodaca to present himself with the qualification of “RN,”15 (2) failure to report
Apodaca’s conduct to law enforcement after he was found with a child sitting in his lap
in April 2021, (3) failure to inform law enforcement about a subsequent email from
parents noting their child’s “change in behavior” after visiting Apodaca during the
previous school year, and asking Chavez how the subject should be addressed with the
child, (4) expressing concern about her “legal jeopardy” and calling her attorney before
a search warrant was executed, (5) failure to independently report another student’s
allegation of abuse by Apodaca after a teacher reported it to the New Mexico Children,
Youth, and Families Department (CYFD), (6) falsely assuring two students’ parents that
she did not believe their children had been with Apodaca during the time period of
concern, 16 and (7) false deposition testimony that she and Apodaca were not close
friends. See doc. 193-1 at 6, 28:10–20; doc. 194-10 at 3, 11, 14–16; doc. 193-1 at 19, 82:5–9.
15 Plaintiff attaches emails where Apodaca’s signature identified him as “BSN/RN,” doc. 194-9 at
7, 9–11, and a letter from Apodaca cosigned by Chavez that identified him as “RN,” id. at 5. At
deposition, Chavez was questioned and responded as follows:
Q: Did you allow him to represent himself to members of the Santo Niño community as a
registered nurse?
A: I didn’t—I don’t think he did that.
Q: If he did that, would you have allowed it or would he have done that on his own?
A: I did not allow him to do that.
Doc. 193-1 at 6, 28:10–20.
16 Specifically, Chavez told one student’s parents via email: “To my knowledge Mr. Apodaca was
never alone with [the child] in that the doors to the offices remained open and there were other staff
members present.” Doc. 194-10 at 3. A police report states that she spoke with another student’s parent
and they “both believe[d]” the child “was not around Robert during the time frame he disclosed,” id. at
16. Plaintiff posits these statements were false because Apodaca discussed allowing the first student “to
come down to the front office to talk with me” in an email, id. at 7, and because the second student stated
during a forensic interview that he was alone with Apodaca “in the heater room of Santo Niño,” doc. 193-
7 at 27. Plaintiff does not attach evidence showing that Chavez actually knew Apodaca was alone with
the door closed with either child.
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As an initial matter, it is by no means clear that any of the cited evidence
establishes Chavez was untruthful. Most of the facts asserted involve questions of
judgment or perspective rather than demonstrably false statements, some expose
genuine disputes about Chavez’s knowledge or awareness, and few if any are material
to Plaintiff’s claims. But in any event, and critically, Plaintiff cannot substitute
assertions about Chavez’s credibility for his burden to produce evidence supporting his
claim. “Standing alone, attacks on the credibility of evidence offered by a summary
judgment movant do not warrant denial of a summary judgment motion.” Alcala v.
Ortega, 128 F.4th 1298, 1306 (10th Cir. 2025) (quoting Nat’l Am. Ins. Co. v. Am. Re-Ins. Co.,
358 F.3d 736, 742 (10th Cir. 2004)). “If the nonmoving party provides insufficient
evidence to support its factual assertions, we may accept as true the moving party’s
version of the facts, as supported by the evidence.” Id. (citing Helvie, 66 F.4th at 1235–
36). In short, it is not enough for Plaintiff to implicate Chavez’s credibility as a general
matter; to defeat summary judgment, Plaintiff must produce evidence that actually
supports his version of the facts.
It is true that under certain, limited circumstances, “[d]oubts as to the credibility
of the [summary judgment] movant’s affiants or witnesses may lead the court to
conclude that a genuine issue of material fact exists.” Helvie, 66 F.4th at 1235 (quoting
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 10A Fed. Practice & Proc. §
2726 (4th ed. update Apr. 2022)) (alterations in original). This situation may arise where
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“the knowledge of the events or occurrences on which the action is based lies
exclusively within the control of the party moving for summary judgment,” and the
relevant facts are therefore “incapable of being effectively controverted.” Id. (quoting
Wright & Miller, 10A Fed. Practice & Proc. § 2726); see also Prochaska v. Marcoux, 632 F.2d
848, 851 (10th Cir. 1980) (noting that “questions of intent, which involve intangible
factors including witness creditability, are matters for consideration of the fact finder
after a full trial,” but affirming summary judgment because the plaintiff failed to show a
genuine issue for trial). In Helvie, summary judgment depended on whether the
defendant officer had observed a handgun in the door of Helvie’s vehicle before or after
his arrest. 66 F.4th at 1233. The officer stated he observed the firearm before the arrest,
while Helvie stated by affidavit that the officer “must” have seen the firearm after he
was already subdued. Id. The Tenth Circuit found Helvie “did not proffer sufficient
circumstantial evidence from which a reasonable jury could find that [the officer’s]
statements that he saw the gun in the driver’s door pocket as he was pulling Helvie
from the truck were not credible.” Id. at 1235–36. Accordingly, summary judgment was
affirmed. Id. at 1236.
The difficulty with Plaintiff’s position is twofold. First, this is not a case where
the knowledge of relevant events and occurrences lies exclusively within Chavez’s
control. C.f. id. at 1235. The dispositive question is not one of intent but of Chavez’s
knowledge and awareness of Apodaca’s misconduct, which may be established by
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direct or circumstantial evidence from other sources, including Plaintiff’s own
testimony. C.f. Prochaska, 632 F.2d at 851. There were numerous other witnesses who
could—and did—testify to whether Chavez was present at relevant times and to what
she observed, was told, or did.
Second, as previously explained, Plaintiff has failed to produce evidence creating
a triable issue of fact. It is not enough for Plaintiff to impugn Chavez’s credibility with
respect to non-material facts; he must also produce evidence, direct or circumstantial, to
contradict her account of the material facts. See Nat’l Am. Ins., 358 F.3d at 742 (affirming
summary judgment where, “[i]nstead of presenting contradictory evidence, NAICO
attempted to cast doubt upon the credibility of some of Am-Re’s evidence”); Helvie, 66
F.4th at 1235–36 (affirming summary judgment where the plaintiff failed to produce
evidence contradicting the defendant’s statement). When evaluating a motion for
summary judgment, the court “should not determine whether it believes the movant’s
evidence; rather, it must determine whether the nonmovant offered any specific facts
that demonstrate the existence of a material fact to be tried.” Nat’l Am. Ins. Co., 358 F.3d
at 743; see also Celotex, 477 U.S. at 323 (“[A] complete failure of proof concerning an
essential element of the nonmoving partyʹs case necessarily renders all other facts
immaterial.”). Plaintiff has not done so here. The attack on Chavez’s credibility is
therefore insufficient to overcome summary judgment, and Chavez’s motion will be
granted for the reasons set forth above.
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V. 	Archdiocese Defendants’ Motion
Count VIII asserts a claim against the Archdiocese Defendants for negligent
failure “to adequately screen, hire, supervise, place and retain Apodaca.” Doc. 82 at ¶
400. The claim arises from Apodaca’s abuse of Plaintiff while acting as his supervisor in
the Santo Niño summer program. Plaintiff alleges Apodaca sexually abused him in his
car when they went to lunch during work hours, and while driving him to Albuquerque
for Plaintiff’s required CPR certification. Id. at ¶¶ 205–08.
The Archdiocese Defendants and Plaintiff each move for summary judgment.
Docs. 186, 204. The Archdiocese Defendants argue there is no evidence to show they
knew or should have known of Apodaca’s dangerous propensities. See doc. 186 at 8–12.
Plaintiff contends the Archdiocese Defendants should have known Apodaca was unfit
based on (1) Chavez’s knowledge from her time at Gonzales, and (2) his application
materials. Doc. 204 at 17–25. In addition, Plaintiff asserts the Archdiocese Defendants
are liable for negligent supervision independent of their prior knowledge of Apodaca’s
unfitness. Id. at 25–26.
A. 	Applicable Law
Under New Mexico law, “[a] principal who conducts an activity through an
agent is subject to liability for harm to a third party caused by the agent’s conduct if the
harm was caused by the principal’s negligence in selecting, training, retaining,
supervising, or otherwise controlling the agent.” Lessard v. Coronado Paint & Decorating
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Ctr., Inc., 168 P.3d 155, 165 (N.M. Ct. App. 2007) (quoting Restatement (Third) of Agency
§ 7.05(1) (2006)). The basic elements of these claims are that the employer knew or
should have known the employee was unfit; that the employer failed to exercise
reasonable care in hiring, training, supervising or retaining the employee; and that the
employer’s negligence caused the plaintiff’s injury. See NMRA, Civ. UJI 13-1647; Ocana
v. Am. Furniture Co., 91 P.3d 58, 73 (N.M. 2004) (standard for negligent supervision or
retention is “whether the employer knew or reasonably should have known that some
harm might be caused by the acts or omissions of the employee” (quoting Los Ranchitos
v. Tierre Grande, Inc., 861 P.2d 263, 269 (N.M. Ct. App. 1993))); Lessard, 168 P.3d at 165
(“Negligence in hiring or retention is based on the employer’s negligent acts or
omissions in hiring or retaining an employee when the employer knows or should
know, through the exercise of reasonable care, that the employee is incompetent or
unfit.” (citing F & T Co. v. Woods, 594 P.2d 745, 747 (N.M. 1979))).
B. Chavez’s Prior Knowledge
For the reasons described above with reference to Chavez’s motion, the Court
finds the Archdiocese Defendants were not negligent in hiring Apodaca based on
Chavez’s prior knowledge of his character and conduct. While tort claims under § 41-4-
6 are distinguishable in some ways from common law claims for negligent hiring and
retention, the question of knowledge is functionally identical: what the defendant knew
or should have known about the risk the employee posed. The Archdiocese Defendants
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are therefore entitled to summary judgment to the extent the claims against them are
based on Chavez’s prior knowledge of Apodaca’s dangerous propensities.
C. Apodaca’s Application for Employment
Plaintiff argues that, even without prior knowledge of Apodaca’s sexual
misconduct at Gonzales, the Archdiocese Defendants were negligent in hiring him
because they (1) insufficiently vetted his application, and (2) should have recognized
that it was fraudulent on its face. Doc. 204 at 18–25.
a. 	Insufficient Vetting
Plaintiff asserts the Archdiocese Defendants did not conduct even a “minimal”
investigation of Apodaca, accepted inadequate “boiler plate” references, did not
announce the vacancy “outside the diocese” as required by Santo Niño policy, did not
conduct a “face-to-face interview” with Apodaca as required by the “VIRTUS Protecting
God’s Children 4.0 Program,” and did not “have conversations with former employers”
as required by NMAC 8.8.3. Doc. 192 at 42–43; doc. 204 at 5, 18–21.
The Court disagrees. The undisputed evidence shows that the Archdiocese
Defendants did, in fact, conduct some investigation of Apodaca’s application.
Specifically, Santo Niño obtained a Background Screening Report with results from the
National Criminal Database, doc. 131-6; obtained written references from the three
references listed on Apodaca’s application, doc. 131-7; and obtained a background check
from CYFD, which stated that Apodaca was “eligible to provide care in accordance with
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Title 8, Chapter 8, Part 3, Governing Background Checks and Employment History
Verification,” doc. 131-8. In addition, Chavez had recently worked with Apodaca at
Gonzales where she had frequent opportunities to observe his work. Plaintiff asserts
that Apodaca’s references were “generic boiler plate assessment” and did not
“provide[] anything meaningful about Apodaca or his character.” Doc. 192 at 42.
However, all three references recommended Apodaca “with enthusiasm,” doc. 194-8 at
2–4, which would not have alerted Santo Niño to a need for further investigation. Two
were work supervisors and one was a colleague. See id. Plaintiff does not cite, and the
Court is unaware of, any New Mexico law imposing a more stringent reference
requirement on prospective employers.17 As for Plaintiff’s claim that Santo Niño should
have advertised the vacancy “outside the diocese,” doc. 204 at 18–19, it appears based on
their selection of Apodaca—who was not a diocese employee at the time of his
application—that Santo Niño manifestly followed this guidance. 18 Finally, the assertion
that Santo Niño violated its internal policy that hiring should be “dependent upon . . . a
person’s qualifications for the position,” doc. 204 at 18, is unavailing because there is no
17 Plaintiff also states that the Archdiocese Defendants did not elicit written references “for his
hiring as the summer camp director or school nurse.” Doc. 204 at 12. Plaintiff provides no authority for
the proposition that an employer should obtain separate references when a current employee is hired for
a new role, or when an employee is hired a role additional to the one applied for.
18 Plaintiff also takes issue with Santo Niño’s purported failure to give hiring preferences “to
practicing Catholics,” as required by internal policy, because Apodaca was not Catholic. Doc. 204 at 19.
Plaintiff does not demonstrate that there were any Catholic applicants; indeed, the undisputed evidence
is that there were no other applicants. See doc. 193-1 at 6, 26:8–13. Nor does Plaintiff demonstrate that
Catholic applicants, as a class, are less likely to abuse children than non-Catholic applicants.
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evidence that any more qualified applicants applied, or that Apodaca’s qualifications
for the role were in some respect inadequate.
The Archdiocese Defendants’ failure to conduct a face-to-face interview 19
likewise does not establish their negligence. Although Plaintiff states categorically that
“[t]he Archdiocese follows the VIRTUS Protecting God’s Children 4.0 Program,” doc.
204 at 5, Plaintiff submits no evidence20 that the attached “Quick Reference Guide” titled
“Steps from A Plan to Protect God’s Children,” which lists various steps for screening,
monitoring, and detecting warning signs, see doc. 204-7, was adopted as an internal
policy of Santo Niño. Thus, Plaintiff fails to establish that any failure to follow those
specific steps constituted a policy violation. But at any rate, even if there were such a
policy, it strains credulity to imagine that a face-to-face employment interview would
have altered Chavez’s opinion of Apodaca when—as Plaintiff has repeatedly
emphasized—she had substantial opportunity to talk with him and observe his
behavior as his supervisor at Gonzales. In short, Plaintiff can show no reasonable
possibility that a face-to-face interview would have revealed disqualifying information
or altered the outcome of the employment process.
Finally, Plaintiff argues that the Archdiocese Defendants violated the New
19 The Archdiocese Defendants dispute Plaintiff’s assertion that there was no face-to-face
interview. Doc. 209 at 8. Because the Court finds in any case that the decision not to conduct a face-to-
face interview was not negligent, it is immaterial that the fact is disputed.
20 The cited evidence shows only that Apodaca completed an online course titled “Protecting
God’s Children” when he was hired at Santo Niño. Doc. 204-5 at 3; doc. 205-2 at 2.
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Mexico Administrative Code which required Santo Niño to speak with each former
employer and document those conversations. Doc. 204 at 19. Plaintiff refers to the
provision requiring “[t]he licensee” to “verify the employment history of any
prospective direct care provider by contacting references and prior employers/agencies
to elicit information regarding the reason for leaving prior employment or service; the
verification shall be documented and available for review by the licensing authority[.]”
NMAC 8.8.3.10(B)(2). “Licensee” is defined as “the holder of, or applicant for, a license,
certification, or registration pursuant to 7.20.11 NMAC, 7.20.12 NMAC, 7.8.3 NMAC,21
or other program or entity within the scope of these rules.” NMAC 8.8.3.7(P). Section
8.8.3 as a whole “applies to CYFD-contracted, direct care providers and their
employees, subcontractors, volunteers, and student interns.” NMAC 8.8.3.2. Plaintiff
contends that if Apodaca’s former employers had been contacted in accordance with the
regulation, Santo Niño would have received reports of misconduct from Flint at SFPS,
and of an incident of “sexual abuse” from the Boy Scouts of America. 22 Doc 204 at 19–
20.
First, it is not at all clear that Santo Niño falls under NMAC 8.8.3 as Plaintiff has
21 The three listed sections are evidently inapplicable to Santo Niño. Section 7.20.11 applies by its
title to “child and adolescent mental health services,” 7.20.12 to “child and adolescent mental health
facilities,” and 7.8.3 to “residential shelter care facilities for children.” NMAC 7.20.11, 7.20.12, 7.8.3.
22 As no record of any abuse relating to the Boy Scouts exists before the Court, the Court assumes
Plaintiff is referring to the Critical Incident Report from Big Brothers Big Sisters of Northern New Mexico
describing an incident on February 19, 2016, where a child reported that Apodaca, a volunteer, had
“pulled his pants down” while playing. Doc. 193-3 at 1.
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not directed the Court’s attention to any evidence or legal authority showing that Santo
Niño is a “CYFD-contracted” provider. But in any case, even assuming NMAC 8.8.3
applies to Santo Niño, it did not violate the regulation. At the time of his application to
Santo Niño in August 2019, Apodaca was a current, not former, employee of SFPS.
Thus, there was no need to determine Apodaca’s “reason for leaving,” see NMAC
8.8.3.10(B) (requiring “contacting . . . prior employers/agencies to elicit information
regarding the reason for leaving”). As SFPS was not a “prior employer,” the regulation
required only the “contacting of references.” Id. Santo Niño indeed contacted Anita
Hett, Apodaca’s direct supervisor at SFPS, for a written reference. Moreover, Santo
Niño was able to directly consult Chavez who, until approximately one month prior,
had been Apodaca’s supervisor. In short, assuming Section 8.8.3.10(B) applied to Santo
Niño, it complied with the regulation as related to his ongoing employment with SFPS.
Plaintiff’s allegation that Santo Niño violated the regulation related to Apodaca’s
involvement with Big Brothers Big Sisters of Northern New Mexico23 also fails. Again,
the Court notes that Plaintiff has failed to establish that Santo Niño is governed by
NMAC 8.8.3.10(B). He cites no authority that Apodaca’s volunteer work with Big
Brothers Big Sisters constitutes “employment history” within the meaning of NMAC
8.8.3.10, and the Court holds that it does not. Moreover, there is no evidence that
Chavez or the Archdiocese Defendants were aware of Apodaca’s affiliation with that
23 See footnote 22.
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group. Big Brothers Big Sisters does not appear on Apodaca’s Santo Niño application,
see generally doc. 194-8, and the only evidence of knowledge by anyone at Gonzales is
Vollmer’s statement that she thought she remembered Apodaca was “involved with the
Big Brothers program,”24 see doc. 194-1 at 18, 15–16. Under these facts, Santo Niño did
not violate NMAC 8.8.3.10 by failing to contact Big Brothers Big Sisters of Northern
New Mexico.
Finally, Plaintiff argues that NMAC 8.8.3.10 required Santo Niño to contact
UNMH Child Life, which was listed under the “Employment History” section of
Plaintiff’s application from 2010–2012. Doc. 204 at 20. Plaintiff argues that if they had
done so, they would have discovered evidence of dishonesty: Plaintiff was “not
employed there” because he was a volunteer, not an employee, and “his volunteer time
there was significantly less than the two years he claimed on his application.”25 Id.
Assuming that Apodaca’s volunteer work at UNMH Child Life should be considered
“employment history” because he described it as employment, this alleged violation of
24 Specifically, Vollmer testified as follows at her deposition:
Q: Were you aware that Robert had been involved with the Big Brothers program?
A: I think I remember that.
Q: Did he discuss that at school?
A: The reason I say I think I remember is I think I recall him mentioning that, but not on a
regular basis. Like it wasn’t something that he talked about often. I vaguely remember
something about Big Brothers.
Doc. 194-1 at 18, 41:15–23.
25 Plaintiff’s evidence for the falsity of these representations is that, on Apodaca’s 2012 application
to SFPS, he listed “UNM Hospitals Child Life” as a part-time volunteer position from 01/2012–11/2012.
Doc. 204-8 at 2–3.
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NMAC 8.8.3.10 has no causal connection to the harm Apodaca later caused. There is
neither evidence nor allegation that UNM had in its possession any information about
possible sexual misconduct, and for the reasons explained below, the Court finds that
an applicant’s misrepresentation about employment qualifications does not render
sexual abuse foreseeable.
b. 	“Obviously Fraudulent” Application Materials
Plaintiff argues the Archdiocese Defendants should have known Apodaca was
unfit for employment because of his “obviously fraudulent” application materials. Doc.
204 at 21. Plaintiff points to various typographical errors and formatting irregularities
on certificates he submitted, indicating forgery and therefore dishonesty; spelling errors
on the application itself, indicating “sloppiness” that made him unfit; inconsistencies
between the Santo Niño application and Apodaca’s applications to SFPS in 2012 and
2019; inconsistencies between his claimed nursing degree and “his prior employment . .
. and lack of licensure”; and misrepresentations that could have been caught by a
“simple reference check” of various online databases. Doc. 204 at 7–12, 21–24.
As a threshold matter, the parties disagree about the law defining the specificity
of the foreseeable harm. The Archdiocese Defendants argue that even if, arguendo, they
were negligent in failing to detect Apodaca’s fraudulent application, there were not
reasonably on notice about his propensity for sexual misconduct. Doc. 209 at 17–18.
Plaintiff, relying on language from the case law, contends he need only show Apodaca
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was “unfit in some way” for the position at Santo Niño, not that his unfitness related to
sexual misconduct. Doc. 204 at 17. In other words, Plaintiff argues the case law should
be interpreted to mean that if an employer knew its employee was unfit in any way,
then any kind of harm resulting from the employee’s actions is per se foreseeable.
But Plaintiff presents no authority where tort law principles have been so loosely
applied. On the contrary, a review of the applicable case law shows that New Mexico’s
courts have consistently assessed the foreseeability of an employee’s misconduct based
on the specific nature of his prior misconduct. The full context of the language cited in
Plaintiff’s brief, see id., is instructive:
Z & E, Inc. argues that Warner’s conduct was not foreseeable because an
employer could not anticipate that an employee such as Warner would
leave his duties without permission, go to the parking lot upon learning
that his car had been struck, and that an altercation would ensue in which
the employee would jump into the back of a fleeing pickup truck and
assault the driver of the truck. We are unpersuaded by this argument.
“Foreseeability does not require that the particular consequence should
have been anticipated, but rather than some general harm or consequence
be foreseeable.” We hold that plaintiff was entitled to an instruction on
negligent hiring or retention. Notice of an employee’s drinking problem and
violent propensities may make an assault and battery by that employee on a
business invitee or customer foreseeable.
Valdez v. Warner, 742 P.2d 517, 520 (N.M. Ct. App. 1987) (quoting Pittard v. Four Seasons
Motor Inn, Inc., 688 P.2d 333, 340 (N.M. Ct. App. 1984)) (emphasis added). Although it
was not necessary for the specific details of the employee’s misconduct to be
foreseeable, the Valdez court nonetheless conducted a fact-specific analysis of the
relationship between the prior misconduct and the plaintiff’s assault. This conclusion
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accords with other Court of Appeals decisions finding that an employee’s violent
conduct may be foreseeable based on knowledge of his prior violent tendencies. In
Pittard, where the plaintiffs’ son was sexually assaulted by the defendant’s employee,
the court held that “[n]otice of an employee’s alcoholism and tendency toward violent
behavior may make sexual assault by that employee foreseeable to the employer.” 688
P.2d at 341. The court contrasted the facts of the case with F & T Co. v. Woods, 594 P.2d
745, 749 (N.M. 1979), where the Supreme Court held the plaintiff’s rape by an employee
was unforeseeable because “no specific indications of any violent behavior on the part
of the employee were brought to the employer’s attention.” Pittard, 688 P.2d at 340; c.f.
Medina v. Graham’s Cowboys, 827 P.2d 859, 861 (N.M. Ct. App. 1992) (employee’s
demonstrated “propensity to engage in fights” provided “a proper basis for concluding
that Cowboys could have reasonably foreseen the danger of Trujilloʹs engaging in a
fight with a patron”). In Spencer v. Health Force, Inc., 107 P.3d 504, 506 (N.M. 2005), the
defendant’s employee—a caregiver for the disabled plaintiff—injected her with heroin,
killing her. The employee had “prior convictions for burglary, aggravated assault,
armed robbery, credit card fraud, embezzlement, and shoplifting,” which were not
discovered because the employer performed no criminal background check at all. Id.
He had also previously stolen the plaintiff’s narcotic prescription pills. Id. The New
Mexico Supreme Court held these facts might “very well serve as an indicator to the
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employer that [the employee] presented a foreseeable danger to a physically
incapacitated client.” Id. at 511.
In short, while proximate cause may not demand a very high level of specificity,
New Mexico law requires a certain degree of causal connection between the kind of
harm that was foreseeable, and the kind that actually occurred. See, e.g., Woods, 594
P.2d at 747–48 (“It is not enough that plaintiff prove that defendant was negligent in
hiring or retaining Sanders. In addition, plaintiff must prove that the negligent hiring
or retention of Sanders was the proximate cause of the rape.”); Lessard, 168 P.3d at 166
(“[W]e must consider foreseeability as to a particular plaintiff and a particular harm.”
(citing Chavez v. Desert Eagle Distrib. Co. of N.M., LLC, 151 P.3d 77 (N.M. Ct. App. 2006),
cert. denied, 152 P.3d 151 (N.M. 2007)). In the case of sexual assault, specifically, New
Mexico courts have required some evidence that the employer was aware of the
employee’s violent tendencies. See Pittard, 688 P.2d at 341. While it is conceivable that
some non-violent conduct might indicate a propensity for sexual misconduct—for
example, a history of prior non-violent sex crimes—there is no reasonable connection
between falsification of one’s professional credentials and a propensity to sexually
abuse children. The Court therefore finds as a matter of law that even if the
Archdiocese Defendants knew or should have known that Apodaca falsified his
application materials, the harm to Plaintiff was not foreseeable.
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In the alternative, the Court finds that no reasonable juror could conclude, based
on the face of Apodaca’s application materials and the various errors asserted therein,
that Santo Niño was negligent in failing to detect an “obvious forgery.” While some of
the certificates contain typographical errors and formatting irregularities, see doc. 194-8
at 10; doc. 205-2, it is not reasonable to conclude that these errors should have alerted the
Archdiocese Defendants to likely fraud.26 Plaintiff attaches no evidence that any of the
certifications were required for the positions for which Apodaca was hired. Therefore,
although Plaintiff contends the fraud was variously detectable via a “simple reference
check,” “simple request,” or “readily available online search,” doc. 204 at 9–11, the
Archdiocese Defendants were not reasonably obliged to perform any independent
verification or, indeed, to closely examine these additional materials for spelling and
formatting errors. It is also unreasonable to expect that the Archdiocese Defendants
would notice such inferential inconsistencies as that Apodaca “lived in Santa Fe and on
February 14, 2020, a school day, was working at both SFPS and Santo Niño and could
not have attended a full-day course in Roswell,” thereby rendering the Heartsaver First
Aid certificate obviously false, doc. 204 at 12; see doc. 205-2 at 5, or that with his full-time
job at SFPS and his after-school job at Santo Niño, “Apodaca did not have sufficient
26 Indeed, it is not clear to this Court—even with the benefit of considerable review and the
detailed argument of Plaintiff’s counsel—that any of the certificates except for the Level Three Nursing
Certificate from UNM Health Sciences Center, doc. 205-2 at 3, were forged. The Level Three Nursing
Certificate contains no obvious errors on its face; the forgery is known only because Plaintiff obtained a
statement from Sheena Ferguson, one of the signatories, that she did not sign the certificate. See doc. 205-
3.
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opportunity to obtain a degree,” doc. 204 at 9. And the Archdiocese Defendants could
not plausibly have recognized the identified inconsistencies with Apodaca’s 2012 and
2019 applications to SFPS, see doc. 204 at 8, because there is no evidence they had access
to those applications. In short, even drawing all reasonable inferences in Plaintiff’s
favor, the collection of miscellaneous errors identified by Plaintiff’s counsel do not
support a claim of negligent hiring or retention.
D. 	Negligent Supervision
Plaintiff argues even if the Archdiocese Defendants are not liable for negligent
hiring, they are nonetheless liable for negligent supervision because they “had notice
that anyone in the position of summer camp director overseeing children campers and
an all-minor staff without any other adults could cause harm.” Doc. 204 at 25 (emphasis
in original). In other words, regardless of whether they had any reason to suspect that
Apodaca posed a particular danger, it was negligent to put him in charge of campers
without oversight because adults, generally, can be dangerous. See id. at 27 (“[I]t was
very foreseeable that a general harm or consequence could befall a minor subordinate
subjected to the authority of a lone adult male, with no other adults around.”).
Plaintiff’s sweeping proposition would implicate every adult teacher, coach,
counselor, nurse, or other school employee in the state of New Mexico. He provides no
legal authority for the argument that it is negligent to allow an adult employee to work
with students unless another adult is present, and this Court is aware of none. Under
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New Mexico law, moreover, it is insufficient to demonstrate the abstract possibility that
an employee’s actions could cause harm. Rather, the plaintiff must establish by
evidence that the employer “knew or reasonably should have known that some harm
might be caused by the acts or omissions of the employee who is entrusted with such
position.” 27 Ocana, 91 P.3d at 72 (quoting Los Ranchitos, 861 P.2d at 269) (emphasis
added). Plaintiff has presented no such evidence and cannot sustain a claim of
negligent supervision on the general possibility that an adult male might endanger
children in his care.
Plaintiff additionally asserts that Santo Niño “violated the Archdiocese’s policy
to never allow a minor to be alone with an employee without other adult eyes on them.”
Doc. 204 at 26. In fact, what the cited policy states is that “[n]o employee is to be alone
with a single student unless the door to the room is open or a window or other opening
allows persons to view the room or unless he/she is in an open area of the school or
grounds.” Doc. 204-1 at 7. There is no evidence the Archdiocese Defendants were
aware of a violation of this policy, i.e., that they knew Apodaca was alone with a single
student in an enclosed, indoor area with the doors and windows closed. For this and
27 Other state courts, applying similar tort law, have explicitly held that the foreseeable danger
must originate from a characteristic of the particular employee in question. See Anderson v. Soap Lake Sch.
Dist., 423 P.3d 197, 210 (Wa. 2018) (“[W]e require a plaintiff alleging negligent supervision of an
employee to show that the employer knew or should have known of the dangerous tendencies of a
particular employee.”); Moore Charitable Found. v. PJT Partners, Inc., 217 N.E.3d 8, 18 (N.Y. Ct. App. 2023)
(“[A]n employer is liable only when it has notice of a particular employee’s propensity for tortious
conduct but neglects to reasonably supervise and control such employee[.]”). Insofar as these decisions
are based on state tort law analogous to New Mexico’s, the Court finds their reasoning persuasive.
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the foregoing reasons, the Court will grant the Archdiocese Defendants’ motion for
summary judgment.
VI. 	Conclusion
For the foregoing reasons, the Archdiocese Defendants’ Motion for Summary
Judgment on Count VIII of Plaintiff’s Second Amended Complaint (doc. 186) is
GRANTED; Defendant Robin Chavez’s Renewed Motion for Summary Judgment on
Count VI of Plaintiff’s Second Amended Complaint (doc. 187) is GRANTED; and
Plaintiff’s Motion for Summary Judgment Against the Archdiocese Defendants as to
Count VIII of the Second Amended Complaint (doc. 204) is DENIED.
IT IS SO ORDERED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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