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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Jumber: Filed 9/23/2202044-43 AM

Opinion
r

ViLZOrZue

Filing Date: September 28, 2020

ved

No. A-1-CA-36781 Mark Reynolds

MELISSA R. VELASQUEZ,

Plaintiff-A ppellee/Cross-Appellant,

Vv.

REGENTS OF NORTHERN

NEW MEXICO COLLEGE,

Defendant-Appellant/Cross-A ppellee.

11
12

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Francis J. Mathew, District Judge

13
14

Moody & Stanford, P.C.
Christopher M. Moody

Albuquerque, NM

for Appellee

17
18

Long, Komer & Associates, P.A.
Mark E. Komer

19
20

Jonas M. Nahoum
Santa Fe, NM

for Appellant

OPINION

LIVES, Judge.

a} ~—- Plaintiff Melissa Velasquez sued Defendant Northern New Mexico College

pursuant to the New Mexico Whistleblower Protection Act (WPA), NMSA 1978,

§§ 10-16C-1 to -6 (2010). A jury found that Defendant violated the WPA and

awarded damages to compensate Plaintiff for back pay and emotional distress, and

the district court ordered Defendant to reinstate Plaintiff. The district court denied

Defendant’s motion for a new trial, remitted the damages awards, and denied

Plaintiff's request for post-judgment interest on the back pay. Defendant appeals,

and Plaintiff cross-appeals. Defendant argues that (1) the evidence does not suffice

to support the jury’s verdict with respect to the elements of protected conduct and

retaliation, (2) the district court erroneously denied Defendant’s motion for a new

trial, (3) the district court erroneously ordered Defendant to reinstate Plaintiff, and

(4) the WPA does authorize the award of back pay. Plaintiff argues that the district

court erred by (5) ordering remittitur and (6) denying post-judgment interest on the

back pay. We reverse the remittitur and post-judgment interest orders but otherwise

affirm.

PROCEDURAL BACKGROUND

gy At trial, Plaintiff sought to prove that Defendant removed her from her

position as director of Defendant’s campus in El Rito, New Mexico (El Rito

campus), transferred her to another position, and then terminated her employment in

retaliation for her communications to Defendant’s administrators about Defendant’s

Ct ao ENS SE EEE WS bo oe Ge = ae = EGE PSE = DS GELS

failure to approve expenditures necessary for the successful implementation of a

plan to revitalize the El Rito campus. Plaintiffs position is that she communicated

to Defendant that Defendant was “jeopardizing the entire revitalization project at El

Rito” by not making relatively small expenditures, “that hundreds of thousands of

federal tax dollars were at risk of being totally wasted,” and that Defendant’s actions

prevented “the expenditure of federal funds that had already been approved for

use[.]” Specifically, according to Plaintiff, the campus revitalization depended on

(1) completing various federally funded laboratories and (2) funding logistical

support necessary for events that Plaintiff had scheduled at the campus and for events

she hoped to arrange. Plaintiff testified that she communicated to Defendant about

the significant consequences of not funding these essential components of the

revitalization effort and that Defendant retaliated against her by removing her from

her position as campus director and later terminating her employment. Plaintiff also

testified that her termination caused her to lose income and benefits and suffer

emotional harm.

{33 Defendant argued to the jury that the WPA does not protect the types of

communications Plaintiff made. Defendant also contended that it was not retaliating

against Plaintiff when it transferred her to a new position and terminated her

employment, and that it had legitimate business reasons for both actions. According

performance and terminated her based on a reduction in force.

44 Defendant repeatedly asked the district court to conclude that Plaintiffs

evidence was legally insufficient. At the close of Plaintiff's case, Defendant moved

for judgment as a matter of law, arguing, among other things, that a reasonable jury

could not find in favor of Plaintiff on the elements of protected conduct, retaliation,

and back pay. The court denied the motion. Defendant then objected to instructing

the jury on liability and damages and, at the close of the evidence, renewed its motion

for judgment as a matter of law. The court allowed Plaintiffs claim to go to the jury.

45} | The jury concluded that Defendant had violated the WPA and returned a

verdict for Plaintiff. It found by special verdict form that Plaintiff had communicated

to Defendant about the occurrence of an improper act, that there was a reasonable

basis in fact for the improper act, and that Defendant retaliated against Plaintiff

because of a communication about that improper act. The jury awarded $239,451 to

compensate Plaintiff for back pay for the two years and ten months between her

termination and the time of trial and $180,000 to compensate her for emotional

distress.

{6} After the district court entered a judgment based on the jury’s verdict, the

parties filed several motions. The district court denied Defendant’s motion for new

trial but granted its motion for remittitur, reducing the damages for back pay to

$84,513 and fo

motion for reinstatement but denied her request for post-judgment interest on the

back pay damages. It then entered an amended judgment reflecting these rulings.

DISCUSSION

I. Substantial Evidence Supports the Jury’s Verdict

(3 Defendant argues that Plaintiff did not introduce sufficient evidence that (1)

her communications with college administrators constituted conduct that the WPA

protects and (2) Defendant was retaliating against her when Defendant removed her

from her position as campus director and transferred her to a new position and when

it ultimately terminated her employment.

48} | Our task is to “review the evidence to determine whether there is evidence

that a reasonable mind would find adequate to support a conclusion.” Dart v.

Westall, 2018-NMCA-061, 4 6, 428 P.3d 292 (internal quotation marks and citation

omitted). We begin our analysis with the facts, “view[ing] the evidence in a light

most favorable to the prevailing party and disregard[ing] any inferences and

evidence to the contrary.” /d. (internal quotation marks and citation omitted). We

“defer to the jury’s determination regarding the credibility of witnesses and the

reconciliation of inconsistent or contradictory evidence.” /d. (internal quotation

marks and citation omitted). We then apply the law set forth in the jury instructions,

which are not challenged on appeal and are therefore the law of the case. /d. To the

our review is de novo. See Cates v. Mosher Enters., [nc., 2017-NMCA-063, § 14,

403 P.3d 687 (“We review interpretation of statutory provisions de novo.”’).

A. _ Summary of Facts

{9} | Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury

could have found the following facts. Nancy Barcelo, President of Northern New

Mexico College, had concerns about the El Rito campus, and one of the provisions

of President Barcelo’s employment contract involved revitalization of the campus.

President Barcelo asked Plaintiff, who was working as Director of Adult Basic

Education at the time, and Dr. James Biggs, the college’s Director of Environmental

Studies, to draft a plan for revitalizing the campus by creating an Innovation Center.

(103 Plaintiff and Dr. Biggs did so and, also at President Barcelo’s request,

presented a preliminary five-year plan for the Innovation Center to the college’s

Board of Regents and Dean’s Council. Under the plan, the Innovation Center would

include the El Rito Agroecology and Biological Research Station; the New Mexico

Cultural Heritage, Sustainable Tourism, Ecological Education Center; the Northern

New Mexico Land Policy and Acéquia Center; and the Hospitality and Culinary

Education Center. The college would make the centers available to students,

community members, and local agencies. The Innovation Center would also include

laboratories devoted to soil testing, fire simulation, geographic information systems,

a sustainable kitchen

the labs would come from grants. As part of their presentation, Plaintiff and Dr.

Biggs explained that the growth of the Innovation Center depended on Defendant

committing to multi-year core funding, developing revenue center programs to

strengthen the center’s financial viability, building grant income, and developing

and expanding earned income revenue streams.

gay After Plaintiff and Dr. Biggs presented the plan, the Board of Regents

indicated that it fully supported the initiative and was excited about the possibility

of moving forward immediately. Defendant directed Plaintiff to implement the plan

and, in February 2012, promoted her to Director of the El Rito campus.

423 Through Plaintiffs efforts, Defendant obtained a federal grant, which

included $265,000 for the labs at the El Rito campus. Defendant also obtained a

state-funded grant for a wildland fire simulation lab. Some of the grant money was

allocated for improvements to the college’s greenhouse laboratory and kitchen,

including purchases of a compost machine and a $100,000 greenhouse. As various

labs approached completion, Plaintiff and Dr. Biggs increased the number of student

groups visiting the campus. Because these groups paid the college for food and

lodging, the college’s revenue from bringing groups to the El Rito campus grew to

at least twice as much as it had been before the revitalization efforts began.

3} Defendant recognized Plaintiff's accomplishments and rewarded her for them.

the institution” during a presentation Plaintiff made to the campus community in the

summer of 2012. In April 2013, Plaintiff received a positive review from her

supervisor, Dr. Anthony Sena, who served as Defendant’s Provost at that time. Dr

Sena gave Plaintiff an average score of 4.4 out of 5. Under Defendant’s rating

system, a score of 4 means “[c]ommendable,” which signifies that an employee’s

“Talccomplishments exceed [the] expected level or essential requirements,” and a

score of 5 means “[o]utstanding,” which signifies that an employee “[c]ontinuously

exceeds expectations for the position.” Defendant then renewed Plaintiffs contract

for the next academic year, which began on July 1, 2013, increasing her salary from

$60,000 to $70,700.

a4; In July 2013, Plaintiff met with Domingo Sanchez, the college’s Vice

President for Finance and Administration, to discuss budgetary matters and sources

of funding. During the meeting, Plaintiff informed Mr. Sanchez that in order to carry

out scheduled activities at the El Rito campus, it would be necessary for Defendant

to budget $5,000 to pay temporary kitchen staff. Mr. Sanchez became angry and

shouted at Plaintiff, ordering her to leave his office and telling her that the college

did not need the kitchen staff, Plaintiff, or the El Rito campus. Mr. Sanchez ended

the meeting by informing Plaintiff that if she told President Barcelo about his

415} Immediately after the meeting ended, Plaintiff went next door to Dr. Sena’s

office and recounted to Dr. Sena what had happened with Mr. Sanchez. Dr. Sena

apologized for Mr. Sanchez’s behavior. But when Plaintiff told Dr. Sena that she

wanted to report Mr. Sanchez and file a grievance, Dr. Sena “became nervous|,]|”

telling Plaintiff that she could either “put up with it” or “get out.”

(16; In August 2013, Plaintiff reported her interactions with Mr. Sanchez and Dr.

Sena to President Barcelo. President Barcelo begged Plaintiff not to file a grievance

and promised Plaintiff that she would make sure that the incident would never be

repeated. Plaintiff explained to President Barcelo that the lack of funding for kitchen

staff would make it impossible to accommodate groups at the El Rito campus; that

cancelling the events for those groups would result in the labs not being utilized; that

the failure to use the labs would result in the federal grant criteria not being met; and

that the money already spent on the labs would go to waste.

73 One event at risk of being canceled was a weeklong youth camp at the El Rito

campus to be held in coordination with the United States Forest Service (USFS) in

November 2013. The curriculum for the camp included classes about the

environment, biology, and wildland fire science. Developing an official partnership

with the USFS was part of the Innovation Center plan, and the youth camp was one

facet of an ongoing relationship with the USFS that had been developed. Under the

receive $45,000 in revenue. The contract required Defendant to, among other things,

pay for lodging, meals, and refreshments for all camp participants.

18} In September 2013, Plaintiff submitted two $5,000 purchase orders for

materials that were necessary to complete the greenhouse and student workstations

at the El Rito campus. Plaintiff explained to Dr. Sena that grant money had been

allocated for these expenditures and that, according to the grant office, the money

would need to be spent by September 30, 2013. Plaintiff informed Dr. Sena that if

the labs were not finished and utilized, as the terms of the federal grant required,

“It]he repercussions could be severe for the [college].’’ Nevertheless, Defendant did

not approve the purchase orders, and the greenhouse and workstations were

consequently not completed.

419} On October 8, 2013, Plaintiff sent emails to Dr. Sena and other employees of

Defendant regarding the approval of expenditures that were necessary to fulfill

Defendant’s obligations to groups that had booked events at the El Rito campus. In

one of the emails, Plaintiff explained that if Defendant did not approve the

expenditures, which included the two $5,000 purchase orders for equipment, it

would be necessary to cancel scheduled events. Plaintiff stated that “the

repercussions [could] be severe.” In another email, Plaintiff explained that “the VP

for Finance and Administration[, Mr. Sanchez,] ha[d] been unresponsive” and that,

“until some action [was] taken

= v¥ 2S os =) = v¥ oe © = Ce

420} Less than two weeks after Plaintiff sent these emails, Dr. Sena issued letters

of reprimand and reassignment to Plaintiff. In the letters, Dr. Sena stated that

Plaintiff was being immediately relieved of her duties at the El Rito campus and

advised her that “future transgressions and/or violations will result in further

disciplinary action up to and including termination.” One of the problems identified

in the letters was Plaintiff signing the USFS contract on behalf of Defendant without

authorization. However, the job description for the position of Director of the El Rito

campus gave Plaintiff the authority to approve such agreements, she had done so in

the past with Defendant’s knowledge and without Defendant raising any concerns,

and Defendant’s finance office was aware of the USFS agreement and knew Plaintiff

was going to sign it but did not object until after she signed it. Defendant also relied

on an allegation that Plaintiff had allowed faculty members to stay overnight at the

El Rito campus free of charge, but no policy prohibited Plaintiff from doing so.

Finally, Defendant accused Plaintiff of failing to attend required meetings. However,

with the exception of two periodic meetings that Plaintiff alternated between because

of a conflict in their timing, Plaintiff had gone to every meeting that she had been

told to attend.

213. Defendant’s removal of Plaintiff was inconsistent with Defendant’s

severe discipline would have been warranted. Defendant’s policy provided that

discipline imposed for performance deficiencies would ordinarily begin with a

verbal or written warning and increase incrementally in severity if concerns were

not resolved after an opportunity for correction. But Defendant removed Plaintiff

from her position at the El Rito campus without giving her prior notice of any

performance issues or any opportunity to address those issues, immediately

imposing what Dr. Sena testified at trial was “harsh” discipline.

2} The letters of reprimand and reassignment directed Plaintiff to report to an

office at Defendant’s Espafiola campus, where her duties would involve the

continuing education program. Defendant initially informed Plaintiff that her new

job title was Coordinator of Continuing Education, which would have been a

demotion because coordinator was a lower position than director. When Plaintiff

pointed this out, Defendant changed her title to Director of Continuing Education,

which was the title of a position that Defendant had eliminated just a few months

earlier. When Plaintiff began in her new position, her job duties were essentially the

same as the duties that another employee was already performing, Defendant did not

assign Plaintiff any projects or tasks, Defendant failed to properly equip her office,

and Dr. Sena hardly communicated with her.

23} Despite Plaintiff's efforts to do her new job well, Dr. Sena remained critical

in the communications he did make. He issued another reprimand letter in November

FEE NS = CONS EGE a = ‘ ¥ aoe

2013, purportedly for failure to obtain authorization to take annual leave, although

Plaintiff had submitted leave request forms. Dr. Sena also sent Plaintiff an email

falsely accusing her of not going to work

e4; Inthe spring of 2014, Plaintiff received two performance evaluations from Dr.

Sena. The first was for the final four months of Plaintiff's tenure as Director of the

EI Rito campus. The second was for the time she had spent as Director of Continuing

Education for the Espafiola campus. The average scores for these two evaluations

were 1.4 and 2.2, respectively. Under Defendant’s system, a score of 1 is

“unsatisfactory,” meaning that “[p]erformance is substandard,” that the employee

“requires a high degree of supervision and direction,” that “[d]eficiencies are clearly

evident” and that “specific, remedial action is required[.]” A score of 2 is “needs

improvements,” meaning that the employee’s “[pJerformance does not meet all

essential requirements of the job[,]” and that the employee’s “work requires frequent

guidance and checking.” Plaintiff testified that the scores she received did not

accurately reflect her job performance.

253 On May 6, 2014, Defendant sent Plaintiff a letter informing her that, because

oo!

it was implementing a Reduction in Force (RIF) that included her position, she

would not be reemployed during the upcoming fiscal year. Plaintiff was terminated

> W

B. — Substantial Evidence Supports the Jury’s Determination That Defendant
Retaliated Against Plaintiff for Engaging in Conduct Protected by the

WPA

26; We address Defendant’s challenges to (1) protected conduct and (2)

retaliation.

1. Protected Conduct

27 The WPA forbids public employers from, among other things, “tak/ing] any

retaliatory action against a public employee because the public employee .. .

communicates to the public employer or a third party information about an action or

a failure to act that the public employee believes in good faith constitutes an unlawful

or improper act[.]” Section 10-16C-3(A). By creating a cause of action against

employers who retaliate against an employee for engaging in conduct that the WPA

protects, § 10-16C-4(A), the WPA “promotes transparent government and the rule

of law.” Flores v. Herrera, 2016-NMSC-033, J 9, 384 P.3d 1070.

gs} With respect to whether the WPA protects Plaintiff's communications to

Defendant, the district court instructed the jury that Plaintiff had the burden of

proving that she “communicated to [D]efendant about an ‘unlawful or improper act’

... related to [the] use of grant funds” and “|t]hat a reasonable basis exist[ed] in fact

of an ‘improper act’ by [D]efendant.” See § 10-16C-2(A) (providing that “ ‘good

faith’ means that a reasonable basis exists in fact as evidenced by the facts available

to the public employee”); Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 ed.

EES

=——?

Cir. 2020) (“Whether an individual has such a reasonable belief is determined by an

objective test: whether a disinterested observer with knowledge of the essential facts

known to and readily ascertainable by the employee would reasonably conclude that

the actions of the government evidence wrongdoing[.]””). The instructions defined

“improper act,” in pertinent part, as “a practice, procedure, action or failure to act on

the part of a public employer that .. . constitutes gross mismanagement [or] a waste

of funds[.]’' See § 10-16C-2(E)(3) (defining “unlawful or improper act[,]” in

pertinent part, as a public employer’s “practice, procedure, action or failure to act”

that “constitutes gross mismanagement [or] a waste of funds”). We address the two

types of improper conduct at issue here—a waste of funds and gross

mismanagement—in turn.”

a. A Waste of Funds

29} The evidence sufficed to prove that Plaintiff was communicating in good faith

with Defendant about “a waste of funds” when she alerted President Barcelo, Dr.

'Tracking the statute, the instruction also included “abuse of authority” in its
definition of “improper act,” but Plaintiff did not urge the jury to find in her favor
based on a theory that Defendant abused its authority.

"Defendant frames these issues as purely legal ones that we review entirely de
novo. However, as we have explained, although we review the interpretation of the
WPA de novo, when applying the WPA to the evidence, we view the evidence in

the light most favorable to the verdict.
14

Sena, and Mr. Sanchez to the importance of making the requested expenditures for

the revitalization of the El Rito campus._A waste of funds can be either an “action

a ea So A ta VY e SOE GL ae Git © =

or a “failure to act,” § 10-16C-2(E), and, since nothing in the WPA suggests that the

Legislature intended the contrary, we accord the phrase “waste of funds” its broad

ordinary meaning, construing it to refer to the “squander[ing]|” of funds—to their

“careless” expenditure or use—or to “allow[ing funds] to be used inefficiently or

become dissipated.” Waste, Merriam-Webster Dictionary, https://www.metriam-

webster.com/dictionary/waste (last visited Aug. 6, 2020). The evidence established

that substantial funds had already been spent in pursuing the unfinished

revitalization project, and further funding contingent on group visits and grant

funding were integral to the project’s success. Cancelling the visits, Plaintiff warned,

would deprive the El Rito campus of a revenue stream. Plaintiff further informed her

superiors that if Plaintiff's funding requests were not approved, the equipment that

had been purchased for the project would go unused, and Defendant would violate

the criteria under which it had obtained the project funds. The essence of Plaintiffs

communications was that a failure to approve the comparatively modest funding

requests she was making would endanger the continued success of the revitalization

project. The facts that Plaintiff was aware of gave her a reasonable basis to believe

that Defendant’s refusal to authorize the expenditures would waste funds, including

the federal grant money Defendant had spent to buy equipment that would remain

unused, the grant money that would remain unspent, and the money that Defendant

would_not_receive_ if the events_at_the El Rito campus did not_occur, such _as_ the

oe Boe eG Cte So oe oe CRE BS ves oe = ae

$45,000 in revenue from the USFS for the youth camp scheduled for the fall of 2013.

430} Defendant argues that the subject matter of Plaintiff's communications did not

qualify as a waste of funds as a matter of law, citing federal precedent that includes

the following definition: “a more than debatable expenditure that is significantly out

of proportion to the benefit reasonably expected to accrue to the government.” Nafus

v. Dep’t of Army, 57 M.S.P.R 386, 393 (1993), overruled on other grounds by

Frederick v. Dep’t of Justice, 65 M.S.P.R. 517, 530-31 (1994); accord Embree vy.

Dep't of Treasury, 70 M.S.P.R. 79, 85 (1996); Van Ee v. E.P.A., 64 M.S.P.R. 693,

698 (1994). In Nafus, 57 M.S.P.R. at 393, the Merit Systems Protections Board

derived this definition largely from the plain language of the federal whistleblower

statute, which protects an employee who makes a good-faith disclosure about “a

gross waste of funds.” 5 U.S.C. § 2302(b)(8)(A)Gi) (1988) (emphasis added)

(current version at 5 U.S.C. § 2302(a)(2)(D)(ii)) (2018)). The Board relied on a

(<4

dictionary that defined “gross” in part as “ ‘[o]ut of all measure; beyond allowance;

flagrant; shameful” and “[s]uch conduct as is not to be excused.’ ” Nafus, 57

M.S.P.R at 393 (first alteration in original) (quoting Black’s Law Dictionary (6th ed.

1990)).

{313 Because the adjective “gross” does not modify the phrase “waste of funds” in

the WPA, we donot

sa ¥V tk Se oo eo td Madd Gol eae = &. Sa oH ¥ =

determining the type of conduct New Mexico’s whistleblower statute protects.

Although we have observed generally that “[t]he WPA was modeled after its federal

counterpart|,|” Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, 9.19, 357

P.3d 453, we have never concluded that the protections of the WPA are identical to

those of the federal statute in every respect or that we will interpret the WPA in

lockstep with federal precedent. A sound reason for departing from federal law is

obvious here: When the Legislature enacted the WPA in 2010, it chose not to track

the limiting language that Congress used. Instead, our WPA protects a

communication if it pertains to “a waste of funds.” Section 10-16C-2(E)(3). Based

on this material difference between the plain language of the state and federal

statutes, we decline to follow federal precedent interpreting the phrase “gross waste

of funds.” See Whitely v. N.M. State Pers. Bd., 1993-NMSC-019, 9 5, 115 N.M. 308,

850 P.2d 1011 (recognizing that a court’s task when interpreting a statute is to

“determine and effectuate the intent of the [L]egislature,” and that “the plain

language of the statute [is] the primary indicator of legislative intent”). Because the

federal test does not govern claims under New Mexico’s WPA, we will not use that

test to evaluate the evidence in the case before us.

4323 Defendant also argues that to the extent that Plaintiff relied on her

upon a chain of speculative causation,” and that the WPA does not protect such

“exhaustive conjecture.” Plaintiff responds that the WPA protects communications

about potential wastes of funds, including her communications to Defendant, which

were not speculative.

333 Both parties rely on Reid v. Merit Systems Protection Board, 508 F.3d 674

(Fed. Cir. 2007). In Reid, the employee alleged that her supervisor had instructed her

to take steps to justify the award of a sole-source contract, and that she

communicated to the supervisor and others that such a contract would violate a

federal regulation. /d. at 676. An administrative law judge concluded that these

allegations were insufficient under the federal whistleblower statute because, among

other reasons, the employee “could not believe that the information she disclosed

reasonably evidenced a violation of law, rule, or regulation because the course of

action she complained of was never taken[.]” /d. But the Court of Appeals for the

Federal Circuit rejected that conclusion and reversed. Adopting the reasoning of

Ward vy. Department of Army, 67 M.S.P.R. 482 (1995), the court explained that

“requiring a violation of law, rule, or regulation to occur before the employee could

make a protected disclosure would force the employee either to act without

protection or to risk being partially responsible for the violation.” Reid, 508 F.3d at

678; see also Ward, 67 M.S.P.R. at 488. The court recognized that “[t]he government

is far better served by having the opportunity to prevent

GE Wt 4 ¥ Ss

conduct than by notice that it may only act to reduce the adverse consequences from

such conduct that has already occurred.” Reid, 508 F.3d at 678. With respect to

potential violations of a law, rule, or regulation, the court explained that the test is

whether there is “[a] reasonable belief that a violation . . . is imminent.” /d. at 677.

oe 6

Stated differently, there must be a reasonable basis to believe that “ “potential

wrongdoing [is] real and immediate.’ ” /d. at 678 (quoting Ward, 67 M.S.P.R. at

488-89). The court held that the employee had alleged “a reasonable belief of a

potential violation.” /d.

434 Notwithstanding this, Defendant seizes on the court’s statement that not every

“mere thought, suggestion, or discussion of an action that someone might consider

to be a violation of a law, rule, or regulation is a justification for a whistleblower

complaint.” /d. But the court in Reid qualified this statement, explaining that

15
16

[d]iscussion among employees and supervisors concerning various
possible courses of action is healthy and normal in any organization. It

17
18
19

may in fact avoid a violation. When such discussion proceeds to an
instruction to violate the law must depend on the facts of a given case.
But a holding that an instruction to carry out an act can never qualify

under the WPA If the act never occurred 1s too bright a line. [he
determination depends on the facts.

N
N

7d. (emphasis added).

35} Reid would not support reversal here even if its analysis applied under the

communications were based on a reasonable belief that a waste of funds was

imminent. Plaintiff presented evidence that she warned Defendant that its refusal to

approve the expenditures at issue would make it impossible to hold specific events

at the El Rito campus, and that if those events were not held, the consequences would

include a loss of revenue, including $42,000 in anticipated profit from the USFS

youth camp contract, and the inability to use equipment purchased with grant money.

Under Reid, an employee need not wait for the wasteful act or failure to act to occur,

and the facts available to Plaintiff gave her a reasonable basis to believe that the

potential for a waste of funds was real and immediate. The failure to use the

equipment and loss of income were not speculative. Plaintiff established a sufficient

nexus between Defendant rejecting the proposed expenditures and a potential waste

of funds. Because there is a reasonable basis in fact to believe that a waste of funds

was imminent, we will not undo the jury’s determination that Plaintiff acted in good

faith. See § 10-16C-2(A).

b. Gross Mismanagement

436 The jury could also have reasonably concluded that Plaintiff's

communications pertained to what Plaintiff believed in good faith was “gross

mismanagement.” The jury instructions defined “gross mismanagement” as “a

management action or inaction which creates a substantial risk of significant adverse

summarized above, the jury could have determined that Plaintiff had a good faith

belief that Defendant’s refusal to approve the expenditures posed a substantial risk

of a significant adverse impact on Defendant’s ability to accomplish its mission

which included revitalizing the El Rito campus by implementing the plan for the

development of the Innovation Center. In a plan that the Board of Regents supported

and that President Barcelo directed Plaintiff to implement, Plaintiff had identified

strengthening the center’s financial viability through development of revenue

centers as an essential first step in successfully implementing the plan for the center,

and the jury could have reasonably concluded that refusing to approve the purchase

orders and fund the payment of kitchen staff for events jeopardized revenue streams

significant to the center’s financial viability.

37} Defendant argues that Plaintiff's communications pertained to Defendant’s

choices regarding the allocation of funds between competing priorities and

differences of opinion about how to approach a problem, neither of which amounts

to the kind of “severe wrongdoing” that must be involved for a disclosing employee

to obtain the WPA’s protection. Defendant presented these same defenses to the jury,

which was instructed that the following do not amount to “gross mismanagement”:

(1) “[d]ifferences of opinion between an employee and [her] agency superiors as to

the proper approach to a particular problem or the most appropriate course of action”

and (2) “(t]he allocation of funds_amon ing priorities within an

WEEE we CE © Got

293

agency|.]”’ To the extent that the jury relied on the “gross mismanagement” theory

in returning a verdict for Plaintiff, it must have rejected Defendant’s arguments that

the communications did not pertain to decisions that rose to the level of gross

mismanagement. Substantial evidence supported that rejection. The jury could

rationally have concluded that Plaintiff's communications involved a fact-based

concern that her superiors’ proposed actions on a matter of importance within

Defendant’s operations were inconsistent with those any reasonable employer would

have taken in similar conditions. There was evidence from which the jury could have

found that grant funds and group visits were essential to the revitalization project,

The instructions that define gross mismanagement in this case are based on
precedent interpreting the federal whistleblower statute, see White v. Dep’t of Air

Force, 391 F.3d 1377, 1381 (Fed. Cir. 2004) (“Mere differences of opinion between
an employee and his agency superiors as to the proper approach to a particular
problem or the most appropriate course of action do not rise to the level of gross
mismanagement.”’); Nafus, 57 M.S.P.R. at 395 (“Gross mismanagement means a

management action or inaction which creates a substantial risk of significant adverse
impact upon the agency’s ability to accomplish its mission.”), and precedent
interpreting that precedent, see Winder v. Erste, 905 F. Supp. 2d 19, 36 (D.D.C.

2012) (“The allocation of funds among several competing priorities within an
agency is acommon problem, not a symptom of ‘gross mismanagement.’ ” (quoting
White, 391 F.3d at 1383)). Because this appeal does not present questions about

whether the instructions are correct under the WPA, we offer no opinion on any such
questions and instead measure the evidence against the given instructions. Goodman
v. OS Rest. Servs., LLC, 2020-NMCA-019, 9 16, 461 P.3d 906, cert. dismissed,

2020-NMCERT-__ (No. S-1-SC-37873, Jan. 13, 2020).
22

that Defendant had demonstrated a high-level commitment to the project, and that

serious consequences would flow

expenditures. We hold that Plaintiff introduced sufficient evidence that her

communications did not involve a mere difference of opinion or a dispute involving

the allocation of funds among competing priorities

{383 Defendant points to evidence that it asserts required the jury to conclude that

the communications did not pertain to gross mismanagement. But the question

before us is whether that conclusion is the on/y reasonable one in light of a// of the

evidence, not just the evidence that supports Defendant’s theory. See Concerned

Residents of Santa Fe. N. v. Santa Fe Estates, Inc., 2008-NMCA-042, § 68, 143

N.M. 811, 182 P.3d 794 (“In reviewing a substantial evidence claim, the question is

not whether substantial evidence exists to support the opposite result, but rather

whether such evidence supports the result reached.” (alteration, internal quotation

marks, and citation omitted)). It was not. As we have explained, the evidence that

Plaintiff presented supported a reasonable conclusion that her communications

pertained to a good-faith belief about gross mismanagement by Defendant. Under

our deferential standard of review, it does not matter that a reasonable jury could

have reached the opposite conclusion by interpreting the evidence in a manner more

favorable to Defendant.

1] 393 We hold that the evidence sufficed to prove that Plaintiff engaged in conduct
2| that the WPA protects
3] 2. Retaliation

40} Substantial evidence also supported the jury’s finding that when Defendant

removed Plaintiff from her position as Director of the El Rito campus and, later

when it terminated her employment, Defendant did so in retaliation for Plaintiffs

protected conduct. The district court instructed the jury that Plaintiff had the burden

of proving that Defendant “engaged in a retaliatory action against [P]laintiff’ and

that Defendant “engaged in the retaliatory action against [P]laintiff because of the

communication about the unlawful or improper act.” “Retaliatory action” was

defined, in accordance with Section 10-16C-2(D), as “any discriminatory or adverse

employment action against a public employee in the terms and conditions of public

employment.” The instructions informed the jury that Plaintiff could “prove

retaliation through indirect evidence, . . . [i.e.] circumstantial evidence, showing that

[D]efendant’s explanations for its conduct are unworthy of belief and merely a

pretext for retaliation” and that the jury was “entitled to infer retaliation if [it]

2°

disbelieve[d D]efendant[’]s explanations for its actions.” This instruction 1s

consistent with our Supreme Court’s recognition that “i]t 1s rare a defendant keeps

documents or makes statements that directly indicate a retaliatory motive for

terminating an employee”; that “whether a proffered justification is legitimate, or is

merely an excuse to cover up illegal conduct, is largely a credibility issue and often

normally be left exclusively to the province of the jury.” Juneau v. Intel Corp., 2006-

NMSC-002, ] 23, 139 N.M. 12, 127 P.3d 548. See generally id. 4§ 23-27 (reversing

the district court’s grant of summary judgment on a retaliation claim brought under

the New Mexico Human Rights Act (NMHRA) because there was a disputed issue

of material fact on the issue of whether a proffered justification for allegedly

retaliatory action was pretextual).

{413 Plaintiff presented circumstantial evidence from which the jury could

reasonably infer that Defendant’s innocent explanations for removing Plaintiff from

her position and then terminating her employment were pretexts designed to disguise

retaliatory motives. At trial, Plaintiff and Defendant presented competing theories to

explain the reasons for Defendant’s removal and termination of Plaintiff. Plaintiff

invited the jury to infer retaliation from a combination of circumstances, including

that Defendant removed her from the campus director position just a few weeks after

she communicated her concerns to Defendant’s administrators. Temporal proximity

between protected conduct and adverse employment action is one factor that may

support an inference of retaliatory motive. See id. § 22 (“The fact-finder should be

free to consider timing and proximity, along with all the other facts and

circumstances, in deciding the ultimate issue of causation.”).

423 The evidence about Plaintiff's performance evaluations also supported an

Plaintiffs employment. It was undisputed that Dr. Sena gave her a positive

performance evaluation before she communicated her concerns but gave her two

negative evaluations after her communications. Dr. Sena’s pre-communication

average score was 4.4 out of 5, but his post-communication averages were 1.4 and

2.2. Based on this abrupt and dramatic change and Plaintiff's testimony that the post-

communication evaluations did not accurately reflect the quality of her work, the

jury could have reasonably concluded that the post-communication evaluations were

pretext designed to conceal retaliatory conduct, rather than genuine evaluations

scored fairly based on Plaintiff's actual job performance. Although Dr. Sena testified

that Plaintiff's performance “turned on a dime,” the jury was not required to accept

his testimony as the truth. And, under the jury instructions, a determination that Dr.

Sena’s explanation was “unworthy of belief’ was sufficient to support an inference

that Defendant was retaliating against Plaintiff when it gave her negative

evaluations, reprimanded her, removed her from her position as campus director and

transferred her to a different position. The jury could also have reasonably inferred

that Dr. Sena, acting on behalf of Defendant, transferred Plaintiff to the position of

Director of Continuing Education because he knew that that position, having been

eliminated just months before Plaintiff's transfer, would be eliminated again at the

end_of the fiscal year.

{433 Such inferences would also have allowed the jury to reject Defendant’s

affirmative defense that it had legitimate business reasons for reprimanding and

reassigning Plaintiff and, later, for not renewing her employment contract for the

2014-15 fiscal year. See § 10-16C-4(B) (“It shall be an affirmative defense . . . that

the action taken by a public employer against a public employee was due to the

employee’s misconduct, the employee’s poor job performance, a reduction in work

force or other legitimate business purpose unrelated to conduct prohibited pursuant

to the [WPA] and that retaliatory action was not a motivating factor.”). Defendant

bore the burden of proving that retaliation was “not a motivating factor,” id.—that,

if Plaintiff had not engaged in protected conduct, Defendant would have

reprimanded her, removed her from her director position, and terminated her

nonetheless. See Strausberg v. Laurel Healthcare Providers, LLC, 2013-NMSC-

032, 4 3, 304 P.3d 409 (“[U]nder settled principles of New Mexico law, the party

asserting an affirmative defense has the burden of proof.”). Without being

unreasonable, the jury could have determined that Defendant failed to carry that

burden because its stated justifications for its decisions were not worthy of belief or

because mixed motives, including a forbidden retaliatory one, factored into its

decision-making.

44, Sufficient evidence supported the jury’s finding that retaliation was at least

one_of the factors that motivat

position as Director of the El Rito campus and later when it declined to renew her

annual employment contract.

II. New Trial

{45} Defendant contends that the district court erred by denying Defendant’s

motion for a new trial, the premise of which was that the testimony of one of

Plaintiff's witnesses was highly prejudicial. Under Rule 1-059 NMRA, “t]he district

court has broad discretion in granting or denying a motion for new trial, and such an

order will not be reversed absent clear and manifest abuse of that discretion.” Estate

of Saenz ex rel. Saenz v. Ranack Constructors, Inc., 2018-NMSC-032, § 19, 420 P.3d

576 (internal quotation marks and citation omitted). Applying this deferential

standard, we see no basis for reversal.

{46} Defendant’s new trial motion pertained to the testimony of Dr. Carmen

Melendres, who began working for Defendant as a grant writer while Plaintiff was

directing the El Rito campus. The thrust of Defendant’s argument is that Dr.

“Plaintiff argues that Defendant failed to preserve this issue because it did not
move for a mistrial. We assume without deciding that Defendant’s multiple
objections to the admission of the testimony at issue preserved the issue.

Melendres gave inadmissible and inflammatory testimony.° This testimony falls into

two categories: (1) testimony pertaining to $50,000 in Title V grant

according to Dr. Melendres, Defendant retained even though they were not used for

their intended purpose of completing laboratories at the El Rito campus; and (2)

testimony that Dr. Melendres stepped down as director of the grant after discussing

Defendant’s handling of the grant funds with a federal program officer, who advised

her that she “did not want to be responsible for what was potentially going to

happen” as a result of Defendant’s handling of the money.

°>In_addition to arguing that the testimony was substantively prejudicial,

Defendant asserts that the admission of the testimony involved procedural prejudice
because the testimony strayed beyond the scope of the summary of anticipated
testimony that Plaintiff provided as part of her pretrial disclosures. Defendant relies

on the proposition that discovery is designed to avoid surprise at trial and asserts that
Defendant was not able to effectively cross-examine Dr. Melendres because the
subject matter of her testimony was not fully disclosed. However, Defendant does

not cite any cases in which an abuse of discretion in denying a new trial has been
found based on a similar theory. Nor does Defendant explain why it could not have
availed itself of any additional discovery devices, such as a deposition of Dr.

Melendres, to gain more information about what testimony she might give. And
Defendant does not explain how any effective cross-examination enabled by a fuller
pretrial disclosure would have had any impact on the outcome at trial. See generally

Valerio v. San Mateo Enters., Inc., 2017-NMCA-059, 4 16, 400 P.3d 275 (“[W]e
will not set aside a judgment based on mere speculation that [an] error influenced
the outcome of the case.” (internal quotation marks and citation omitted)). Because

Defendant has failed to develop this argument, we do not consider it on the merits.
See Elane Photography, LLC v. Willock, 2013-NMSC-040, 4 70, 309 P.3d 53 (“We
will not review unclear arguments, or guess at what a party’s arguments might be.”

(alteration, internal quotation marks, and citation omitted)).
29

47; The district court granted Defendant’s motion to strike the testimony in the

second category and promptly and clearly in
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we presume that the jury did as it was told. Vigil v. Miners Colfax Med. Ctr., 1994-

NMCA-054, § 22, 117 N.M. 665, 875 P.2d 1096. Under these circumstances, the

general rule is that a “prompt admonition” to “disregard and not consider

inadmissible evidence sufficiently cures any prejudicial effect which might

otherwise result.” State v. Hernandez, 2017-NMCA-020, 49 17, 388 P.3d 1016

(internal quotation marks and citation omitted); see Apodaca v. Miller, 1968-NMSC-

086, ¥ 21, 79 N.M. 160, 441 P.2d 200 (“[UJnless it is clear that prejudice resulted

because of evidence erroneously admitted, striking or instructing the jury to

disregard it will cure the error and avoid reversal.”). Defendant relies on an exception

applicable in criminal cases: When a lawyer intentionally elicits inadmissible

evidence, we do not presume the absence of prejudice. Hernandez, 2017-NMCA-

020, § 17. Defendant argues that counsel for Plaintiff acted intentionally, but counsel

stated unequivocally under oath that he did not, and Defendant has neither cited

evidence nor offered argument raising any doubt about counsel’s credibility, the

assessment of which was a task for the district court anyhow.° See Reed v. Furr’s

°Defendant argues in the alternative that if counsel for Plaintiff did not act

intentionally, Dr. Melendres must have done so because she came to the stand with
“an axe to grind,” and that this Court should treat prejudicial testimony deliberately
given by a witness the same way we treat such testimony deliberately elicited by a

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governs here. Because the curative instruction effectively nullified any prejudice,

the testimony in the second category did not require a new trial.

{48} Nor did the testimony in the first, though for different reasons. That testimony

was admitted, and it was potentially prejudicial because it implied that Defendant

engaged in misappropriation of public funds, which is arguably more inflammatory

than wasting public funds or engaging in gross mismanagement. However, we must

assess the possible prejudice in the context of the entire trial, deferring to the district

court judge, who observed all of the testimony as well as the jury’s reactions to that

testimony. See generally Rhein v. ADT Auto., Inc., 1996-NMSC-066, § 18, 122 N.M.

646, 930 P.2d 783 (“We apply [an] abuse-of-discretion standard because the trial

judge has observed the demeanor of the witnesses and has heard all the evidence[,]

and thus the function of passing on motions for new trial belongs naturally and

peculiarly to the trial court.” (alterations, omission, internal quotation marks, and

citation omitted)). The testimony at issue was a brief part of a four-day trial that

featured the testimony of Plaintiff, President Barcelo, Dr. Sena, Mr. Sanchez, and

lawyer. Because Defendant cites no precedent to support such an approach, we

assume none exists. See In re Adoption of Doe, 1984-NMSC-024, 4 2, 100 N.M.
764, 676 P.2d 1329. Moreover, Defendant provides no rationale for extending the
exception to witnesses, and we can identify no persuasive justification for doing so.

Dr. Biggs—the witnesses who had first-hand knowledge of the facts most pertinent

to_liability and damages

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testimony of those witnesses. Plaintiff's counsel did not highlight, or even mention,

the specific testimony at issue during his closing arguments.

493 Considering all of the circumstances, we are not persuaded that the district

court abused its discretion by denying Defendant’s motion for a new trial.

Ill. Reinstatement

450} Defendant contends that the district court erred by ordering Defendant to

reinstate Plaintiff pursuant to Section 10-16C-4(A). We disagree.

513, Because reinstatement is an equitable remedy, see Collado v. City of

Albuquerque, 2002-NMCA-048, {9 22-24, 132 N.M. 133, 45 P.3d 73, our standard

of review is abuse of discretion. State ex rel. King v. B&B Inv. Grp., Inc., 2014-

NMSC-024, § 28, 329 P.3d 658. “An abuse of discretion will be found when the trial

court’s decision is clearly untenable or contrary to logic and reason.” /d. (internal

quotation marks and citation omitted).

523, The WPA provides for reinstatement in Section 10-16C-4(A), which states, in

pertinent part, that “[a] public employer that violates the provisions of the [WPA]

shall be liable to the public employee for . . . reinstatement with the same seniority

Status that the employee would have had but for the violation[.]” As the statute’s

plain language indicates, one purpose of reinstatement is to make the employee

whole by putting her in the position she would have been in had her employer not

retaliated. Cf Collado, 2002-NMCA-048, q 2? (noting, 1n_a breach of employment

EWEGLLOACWS, ye EO Los ENN NS fe ‘i Se ey

contract case, that it is unexceptional to conclude that “equitable relief is the most

appropriate way to make an employee whole” and identifying reinstatement as a type

of equitable relief). The same purpose underlies the remedy of reinstatement

provided for by federal statutes that protect employees from unlawful retaliation and

discrimination.’ See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976)

(recognizing that a central purpose of Title VII is to make victims of employment

discrimination whole and that Congress “effectuate[d] this ‘make whole’ objective”

in part by authorizing the remedy of reinstatement); Kerr v. Nat’! Endowment for the

Arts, 726 F.2d 730, 733 (Fed. Cir. 1984) (recognizing that the basic purpose of

reinstatement “is restoration of the situation, as nearly as possible, to that which

would have obtained but for” the employer’s unlawful action (internal quotation

marks and citation omitted)). “[RJeinstatement offers the most likely means of

making a plaintiff whole by allowing her to continue her career as if the [employer’s

unlawful action] had not occurred.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d

1322, 1338 (11th Cir. 1999). When a person loses his or her job, money damages

7Although federal precedent is not controlling with respect to either the
interpretation of the WPA or the remedial powers of New Mexico courts, we find
that the cited federal precedent accurately describes the purposes of the

reinstatement remedy contemplated by the WPA.
33

alone will not make the person whole because, although “[t]he psychological

re real and cannot be 1

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benefits of work are intangible, they

quotation marks and citation omitted); see Jackson v. City of Albuquerque, 890 F.2d

225, 233-34 (10th Cir. 1989) (recognizing that reinstatement should ordinarily be

granted in wrongful discharge cases brought under 42 U.S.C. § 1983 (1988), in part

because when a person loses a job, money damages are insufficient to make the

person whole).

{53} Reinstatement also deters violations of the WPA, just as it deters violations of

other statutes that forbid discrimination and retaliation. See Reiter v. MTA NLY.C.

Transit Auth., 457 F.3d 224, 230 (2d Cir. 2006) (“Under Title VII, the best choice is

to reinstate the plaintiff, because this accomplishes the dual goals of providing make-

whole relief for a prevailing plaintiff and deterring future unlawful conduct.”);

Squires v. Bonser, 54 F.3d 168, 172-73 (3d Cir. 1995) (recognizing, in the context

of 42 U.S.C. § 1983, that “[rJeinstatement advances the policy goals of make-whole

relief and deterrence in a way which money damages cannot’). The deterrence

rationale is simple: “If an employer’s best efforts to remove an employee for

[unlawful] reasons are presumptively unlikely to succeed, there is . . . less incentive

to use employment decisions to chill the exercise of [legal] rights.” A//en v. Autauga

A= = 44

Cty. Ba. of Educ., 685 F.2d 1302, 1306 (11th Cir. 1982); accord Reiter, 457 F.3d at

230; Hiraldo-Cancel v. Aponte, 925 F.2d 10, 13 (1st Cir. 1991); Jackson, 890 F.2d

at 235.

454} Mindful of these goals, we turn to Defendant’s arguments. Although Section

10-16C-4(A) states that public employers “shall be liable” for reinstatement and

does not explicitly identify any exceptions to this apparent mandate, Defendant

argues, based on federal precedent, that reinstatement is not appropriate under the

facts of this case. However, in the cases Defendant relies on, the courts did not apply

statutes that use mandatory language in connection with reinstatement. Even

assuming without deciding that the WPA grants courts the discretion to deny

reinstatement for the reasons the federal courts have identified, none of those reasons

compelled the district court to deny reinstatement here.

4553 This Court has recognized, consistent with federal precedent, that “[t]he

overarching preference in employment discrimination cases is for reinstatement.”

Maestas v. Town of Taos, 2020-NMCA-027, § 12, 464 P.3d 1056 (internal quotation

marks and citation omitted), cert. granted, 2020-NMCERT-__(No. S-1-SC-38171,

Apr. 27, 2020); see also Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989)

(“[R]einstatement usually will be granted when a plaintiff prevails in a wrongful

discharge case brought under Section 1983.”’); Reeves v. Claiborne Cty. Bd. of Educ.,

828 F.2d 1096, 1101 (Sth Cir. 1987) (recognizing that “[rjeinstatement is...

normally an integral part of the remedy for a[n] . . . impermissible employment

action’); Allen, 685 F.2d at 1305 (“[R]einstatement is a basic element of the

appropriate remedy_in wroneful emplovee discharge cases and
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extraordinary cases, is required.”). Although a plaintiff does not have an absolute

right to reinstatement, “once the plaintiff establishes that his [or her] discharge

resulted from [unlawful] motives, he [or she] is presumed to be entitled to

reinstatement.” Reeves, 828 F.2d at 1101 (emphasis, internal quotation marks, and

citation omitted). “[A] denial of reinstatement is unwarranted unless grounded in a

rationale which is harmonious with the legislative goals of providing [the] plaintiff] ]

make-whole relief and deterring [the] employer[] from [unlawful] conduct.” Squires,

54 F.3d at 172. Defendant has not persuaded us that any such rationale mandated

denial of reinstatement here.

{56} The first of Defendant’s four arguments is that “[t]he evidence did not support

[reinstatement] due to the unduly speculative nature of prospective one-year contract

offers.” Even if we give Defendant the benefit of the doubt and assume that an

employee must prove, not just that an employer has unlawfully terminated her in

violation of the WPA, but also that she would have continued to be employed until

the time of trial, that does not aid Defendant. On the record before us, we cannot

conclude that the district court’s decision to order reinstatement was “untenable or

contrary to logic and reason” even if the assumption were correct. B&B Inv. Grp.,

Inc., 2014-NMSC-024, ¥ 28 (internal quotation marks and citation omitted). The jury

implicitly determined that Plaintiff would have remained employed until the time of

trial. in awarding her back pay equivalent to the pay she would have received

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the time of her termination until then. There was evidence that, before the reprisal

began, Plaintiff had been employed for multiple years pursuant to annual

employment contracts, had consistently received positive reviews, had been

described by President Barcelo as “a rising star,” had recently earned a promotion to

campus director, and had Defendant’s support for implementing a multi-year

campus revitalization project. The district court did not err, if the inquiry was even

necessary, in determining, on the basis of the same evidence available to the jury,

that Plaintiff would have remained employed as campus director going forward if

Defendant had not knocked her career off course by retaliating against her.

7) Defendant’s next rationale springs from /.L.0.C. v. Prudential Federal

Savings & Loan Ass’n, 763 F.2d 1166, 1172 (10th Cir. 1985), in which the Tenth

Circuit stated that “[rJeinstatement may not be appropriate . . . when the employer

has exhibited such extreme hostility that, as a practical matter, a productive and

amicable working relationship would be impossible.”* (Emphasis added.) Defendant

’The Tenth Circuit explained that when reinstatement is not possible, “an
award of future damages in lieu of reinstatement” will “assur[e] that the aggrieved
party is returned as nearly as possible to the economic situation he would have

enjoyed but for the defendant’s illegal conduct[,|” and that “[i]f this were not the
case, an employer could avoid the purpose of [an anti-discrimination law] simply by
making reinstatement so unattractive and infeasible that the wronged employee

relies on a snippet of Plaintiff's testimony about why she did not obtain a job with

presidents had told another employee “that the only reason [Defendant] would hire

me was because I was suing the college.” When asked what effect that information

had_on her, Plaintiff testified, “I felt that I would have stepped in a position of

hostility, if I would have taken any of those positions.” She then described other

factors that played a role in her not being employed in one of those positions. One

position involved a salary $40,000 lower than her director salary, and Defendant told

her she was not qualified for the other position. Although this testimony indicated

that Plaintiff perceived some hostility, it did not require the district court judge to

conclude that the hostility was so “extreme” that it would be practically “impossible”

for Plaintiff and Defendant to work together amicably and productively. Prudential

Fred. Sav. & Loan Ass’n, 763 F.2d at 1172; see also Farley, 197 F.3d at 1339

would not want to return.” Prudential Fed. Sav. & Loan Ass’n, 763 F.2d at 1173;
see also Shore v. Fed. Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985)
(explaining that if “reinstatement is not possible, an award of front pay is sometimes

appropriate” and that such awards “should be evaluated under the standards applied
to all Title VII relief: whether the award will aid in ending illegal discrimination and
rectifying the harm it causes’). However, Defendant asserts that front pay is not

available under the WPA. Section 10-16C-4(A) does not authorize awards of front
pay, but Section 10-16C-4(C) states that “[t]he remedies provided for in the [WPA]
are not exclusive and shall be in addition to any other remedies provided for in any

other law or available under common law.” Because the district court ordered
Defendant to reinstate Plaintiff, it did not address her alternative request for front
pay. Reversal of the reinstatement order would revive that request. Affirmance

makes it unnecessary for us to resolve issues pertaining to front pay.
38

(emphasizing that “the presence of some hostility between parties . . . should not

receiving reinstatement”). Under these

qo EE Ga SENS za eae

circumstances, reversing the reinstatement order because of Defendant’s hostility

toward Plaintiff would be inharmonious with the legislative goal of deterring

unlawful conduct. See Squires, 54 F.3d at 172. To the extent that certain employees

of Defendant wanted the college to end its relationship with Plaintiff permanently,

denying reinstatement based on their hostility toward Plaintiff would help them

achieve that goal, thereby encouraging rather than discouraging retaliation against

whistleblowers. See Farley, 197 F.3d at 1339-40 (“Defendants found liable of

intentional discrimination may not profit from their conduct by preventing former

employees unlawfully terminated from returning to work on the grounds that there

is hostility between the parties. To deny reinstatement on these grounds is to assist

a defendant in obtaining his discriminatory goals.” (citations omitted)); Jackson, 890

F.2d at 235 (reversing the denial of reinstatement in part because affirmance would

accomplish the defendants’ purpose of “run[ning the] plaintiff... off the job”).

58} Defendant further argues that Plaintiff “did not meet her burden to show that

reinstatement was feasible” because Defendant has not “extended equivalent offers

for the El Rito or Continuing Education positions since 2014[,]” and Plaintiff

presented no evidence of any comparable openings that she was qualified to hold.”

This argument cannot be squared with the plain language of the WPA, which does

not indicate that a plaintiff seeking reinstatement carries any burden in addition to

See § 10-16C-4(A) (“A public employer that violates the provisions of the [WPA]

shall be liable to the public employee for . . . reinstatement with the same seniority

status that the employee would have had but for the violation].]”). Nor can

Defendant’s argument be squared with federal precedent, under which reinstatement

is the rule and denial of reinstatement (accompanied, perhaps, by an award of front

pay, as noted above) is the exception. See Starrett, 876 F.2d at 824; Reeves, 828 F.2d

at 1101; Allen, 685 F.2d at 1305. Although reinstatement may place incidental

burdens on Defendant, such burdens are foreseeable consequences of Defendant’s

unlawful conduct, and Defendant has not established that those burdens mandated

the denial of reinstatement here. See Rosario-Torres v. Hernandez-Colon, 889 F.2d

314, 322 (1st Cir. 1989) (explaining that “in the real world, reinstatement in

unlawful-discharge cases often will place some burden on the [employer,]” which

might include displacement of “employees who have assumed duties previously

performed by the fired worker” and that such burdens are “usually insufficient,

without more, to tip the scales against reinstatement when first amendment rights

are at stake in a [S]ection 1983 action’); Sterzing v. Fort Bend Indep. Sch. Dist., 496

F.2d 92, 93 (Sth Cir. 1974) (per curiam) (recognizing, in the context of an

employee’s request for reinstatement based on a violation of constitutional rights,

that the enforcement of those rights “frequently has disturbing consequences” and

Banks v. Burkich, 788 F.2d 1161, 1165 (6th Cir. 1986) (same); cf. Martinez v. Cities

of Gold Casino, 2009-NMCA-087, 4 31, 146 N.M. 735, 215 P.3d 44 (directing the

employer in a worker’s compensation case to provide a worker “with a position of

employment . . . substantially equivalent to the position [the worker] formerly held

in terms of pay and benefits” where the worker’s mandatory license had been

suspended and the worker’s compensation judge believed that it lacked authority to

order reissuance of the license).

459} Defendant’s final argument is that reinstatement is not appropriate because

Plaintiff failed to mitigate her damages by “pursu[ing] two open positions at the

[clollege” after the retaliation occurred. We find it unnecessary, in resolving this

appeal, to address the dubious proposition that a failure to mitigate damages by

seeking alternative employment precludes the equitable remedy of reinstatement.

But cf. Dilley v. SuperValu, Inc., 296 F.3d 958, 967 (10th Cir. 2002) (“A plaintiffs

ability to replace some of the income lost by virtue of [a] wrongful discharge

certainly affects how much lost income [the plaintiff] is due, but it does not bear on

whether the plaintiff is entitled to the job itself.”’). Defendant cites no authority

supporting that proposition, see generally In re Adoption of Doe, 1984-NMSC-024,

4 2, and fails to articulate any rationale for “link[ing] a plaintiffs pursuit of

alternative employment” to whether the plaintiff “should be reinstated to the position

from which [the plaintiff] was wrongfully discharged.” Dilley, 296 F.3d at 967-68.

We decline to address this undeveloped argument. Headley v. Morgan Memt. Corp.,

2005-NMCA-045, 4 15, 137 N.M. 339, 110 P.3d 1076.

{60} _ We hold that the district court did not err by ordering reinstatement

IV. Back Pay for Retaliatory Refusal to Renew Employment Contract

(613 Defendant argues that the WPA does not authorize an award of back pay to

compensate Plaintiff for income that she would have received had Defendant

renewed her employment contract. See § 10-16C-4(A) (providing that an employer

who violates the WPA “shall be liable” to the employee for, among other things,

“two times the amount of back pay with interest on the back pay’’). This argument

raises a question of statutory interpretation, which we review de novo. Cates, 2017-

NMCA-063, 9 14. Although the WPA expressly provides for back pay, and our

interpretation must begin with the statute’s plain language, State v. Suazo, 2017-

NMSC-011, § 16, 390 P.3d 674, Defendant does not identify any language in the

WPA that supports its argument, and we conclude that the pertinent language

authorizes an award when, as the jury found in this case, an employer retaliates by

refusing to renew an employee’s contract.

{62} Our analysis begins with the WPA’s fundamental command: “A public

employer shall not take any retaliatory action against a public employee because the

public employee” engages in protected conduct. Section 10-16C-3. The statute

defines “public employee” as “a person w

WED pey saat

employer.” Section 10-16C-2(B). Contract employees fall within the plain language

of that definition, which includes all employees. Nothing in the WPA suggests that

whether the employment relationship is contractual has any bearing on the statute’s

application, and we will not add such language to the statute. See Janet v. Marshall,

2013-NMCA-037, § 23, 296 P.3d 1253. Based on the inclusion of contract

employees in the definition of “public employee” and the absence of language

elsewhere in the WPA that differentiates between contract employees and at-will

employees, we conclude that our Legislature intended for contract employees to

enjoy the same protection against retaliatory action that at-will employees enjoy.
Oy Pp g ry Pp

{63} Our next task is to determine whether nonrenewal of an employment contract

constitutes “retaliatory action,” which the WPA defines as “any discriminatory or

adverse employment action against a public employee in the terms and conditions

of public employment.” Section 10-16C-2(D) (emphasis added). This broad

definition encompasses the termination of public employment. Indeed, no action

with respect to the terms and conditions of employment could be more adverse than

termination. And termination is the lens through which we view retaliatory contract

nonrenewal. Whether something qualifies as an adverse employment action must be

determined in reference to an employee’s “terms and conditions of employment”—

to the employment relationship that in fact existed between employer and employee.

The essence of a retaliatory nonrenewal claim _is that_retaliation caused the end_of

EWG Y = = ES VY GE. ao eae TOLL = Ge

that relationship—that the nonrenewal reflects, not mere passivity, but a conscious

effort to end employment that would have continued under circumstances in which

the employee had not engaged in whistleblowing. We conclude that a public

employer who refuses to renew a public employee’s contract because of the

employee’s protected conduct has taken an “adverse employment action . . . in the

terms and conditions of public employment” within the meaning of the WPA.

Section 10-16C-2(D). The WPA does not distinguish between the various methods

that an employer might use to achieve its retaliatory goal of putting an end to a

person’s employment.

{64 In sum, contract employees are “public employees” under the WPA, and

employers may not refuse to renew a contract employee’s contract because the

employee made a protected communication. Terminating an employment

relationship in retaliation for protected conduct violates the WPA and exposes the

employer to liability for back pay; no exception excuses such reprisal merely

because the victim is employed pursuant to a contract or because the method of

termination is nonrenewal. We hold that the WPA authorizes awards of back pay to

public employees who lose their jobs when their employers retaliate against them by

refusing to renew their contracts.

65} Our holding is necessary to achieve the goals of the WPA: to encourage

whistleblowing

ss See ao ©. =

do so, to discourage employers from retaliating. See San Juan Agric. Water Users

Ass’nv. KNME-TYV, 2011-NMSC-011, 7 14, 150 N.M. 64, 257 P.3d 884 (“A statute

should be interpreted... to accomplish the ends sought to be accomplished by it.”

(internal quotation marks and citation omitted)). To somehow place contract

nonrenewal beyond the reach of the statute would discourage contract employees

from engaging in protected activity and limit the disclosure of information that

would remain unexposed without whistleblowing by contract employees. Under

Defendant’s proposed holding, an employee seeking the renewal of her employment

contract would have a powerful disincentive to refrain from, for example, making

good-faith reports of unlawful or improper acts—including reports made possible

only through her position as a contract employee. And a contract employee who

loses her job through retaliatory nonrenewal would have no remedy for lost income

under the WPA. Reading the WPA to exclude back pay for contract nonrenewal

would allow employers to circumvent the statute, enabling them to retaliate against

whistleblowers with impunity as long as the reprisal takes the form of contract

nonrenewal. Permitting that circumvention would undermine the WPA’s goal of

encouraging whistleblowing by public employees.

{66} A hypothetical illustrates the potential for mischief and injustice. One month

before her one-year renewable contract expires, an employee who has had annual

contracts for the past ten years reports that her employer is embezzling public funds.

renew her contract rather than terminating her current contract eilective

immediately. Under the holding Defendant requests, the employer could easily

sidestep the WPA, escaping liability for back pay, and the employee, who would

ave for the whictleblows
|have remained employed save for the whistleblowing, would be left without

compensation for her lost income under a statute designed in part to compensate

whistleblowers. We decline to interpret the WPA in a manner that would produce

such absurd and unjust results. Pucci Distrib. Co. v. Stephens, 1987-NMSC-075,

statute’s application absurd, unreasonable or unjust.”).

{67} In support of its argument, Defendant relies not on the language of our WPA.

but instead on one out-of-jurisdiction case, Wurtz v. Beecher Metropolitan. District,

UU CUIACTT. Th +L,

QAQ NT 94-191 AG ALAS 1 ee | ar, ee are a a
O46 IN. W.20 L121 UVC. 2 Ij, WOT We TMI UNDE SUdsive. Lee, Wie Supreme

Court of Michigan held that that state’s whistleblower statute “does not apply to

decisions regarding contract renewal,” id. at 128, because the court “discern[ed] no

legal difference between a contract employee seeking a new term of employment

an 4 ++: 1.

—

rons 6sL, 2 anonace

A bo 4 a 4 ~~ o oa gues bee
and a new applicant,” id. at 129, and the statute, “by its express language, only

applie[d] to current employees.” /d. at 122. But the result and reasoning of Wurtz

oe: W rs ae

language_and_purposes_of New Mexico’s

whistleblower statute. Under the WPA, all people who “work[] for or contract[]

with” public employers are public employees, § 10-16C-2(B), and public employers

are prohibited from “tak[ing] any retaliatory action against” them in the first place

Section 10-16C-3. A public employer who retaliates against a contract employee by

refusing to renew the employee’s contract defies that express prohibition.

(683 Nothing in our WPA supports equating people who have an existing

employment relationship with a public employer—‘public employees|,]” as defined

in Section 10-16C-2(B)—with people who do not but are seeking to establish one—

prospective public employees.’ Our WPA treats contract employees and at-will

employees identically, as we have explained. New Mexico’s statute protects all

people who obtain public employee status, as Plaintiff did, giving them the security

to engage in protected conduct without fear of losing their jobs and providing for

°In equating contract employees to prospective employees, the Michigan

Supreme Court found it relevant that a contract employee “has absolutely no claim
to continued employment after his or her contract expires.” Wurtz, 848 N.W.2d at
125 n.10 (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 578 (1972)).

We do not think that that proposition of law has any bearing on the present case.
Because the plain language of the WPA bars a public employer from taking “any
retaliatory action against[,]” § 10-16C-3, “a person who works for or contracts with”

the employer, § 10-16C-2(B), we find it unnecessary to look beyond that language
to determine whether an exception permits employers to take a particular kind of
retaliatory action against public employees who have no right to enter into a new

contract after their contract expires.
47

remedies, including back pay, when an employer illegally retaliates against them by

protection for contract employees, affording them less protection from retaliatory

termination than other public employees, it could easily have said so somewhere in

the WPA, but it did not. Without textual support, we will not undermine the WPA’s

ban on “any retaliatory action,” § 10-16C-3, by turning the most adverse

employment action that exists into the weapon of choice for employers intent on

retaliating against whistleblowing contract employees.

V. Remittitur

69} In her cross-appeal, Plaintiff challenges the district court’s remittitur order,

which reduced the jury’s back pay award from $239,451 to $84,513 and its

emotional distress award of $180,000 to $90,000. Because we are not persuaded that

the jury’s awards were so grossly out of proportion to the harms Plaintiff suffered as

to shock the conscience, we reverse.

{70} “[T]o arrive at a reasonable award of damages,” the jury and the district court

judge should “work together, each diligently performing its respective duty|.|”

Sandoval v. Chrysler Corp., 1998-NMCA-085, 4 16, 125 N.M. 292, 960 P.2d 834.

However, determining damages “is a fundamental function of a jury[,]” A//sup’s

= oe val got 4 ea

Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, § 16, 127 N.M. T,

976 P.2d 1 (internal quotation marks and citation omitted), which has “wide latitude”

to determine what amount is appropriate. Martinez v. Ponderosa Prods., Inc., 1988-

ENN NS oH

NMCA-115, 46, 108 N.M. 385,772 P.2d 1308; accord Mathis v. Atchison, Topeka

& Santa ke Ry. Co., 1956-NMSC-074, § 8, 61 N.M. 330, 300 P.2d 482. With respect

to damages findings, our Supreme Court has emphasized that the district judge “has

limited superintendence.” Nava_v. City_of Santa Fe, 2004-NMSC-039, 416, 136

N.M. 647, 103 P.3d 571 (internal quotation marks and citation omitted). The judge

owes significant deference to the jury, whose “verdict is presumed to be correct[,]”

Allsup’s Convenience Stores, Inc., 1999-NMSC-006, § 16, and whose findings with

respect to the appropriate amount of damages “will not be disturbed as excessive

except in extreme cases[.|” Vivian v. Atchison, Topeka & Santa Fe Ry. Co., 1961-

NMSC-093, § 10, 69 N.M. 6, 363 P.2d 620; accord Allsup’s Convenience Stores,

Inc., 1999-NMSC-006, § 16. Accordingly, “the mere fact that a jury’s award is

possibly larger than the court would have given is not sufficient to disturb a verdict.”

Hall v. Stiles, 1953-NMSC-041, 9 9, 57 N.M. 281, 258 P.2d 386; accord Allsup’s

Convenience Stores, Inc., 1999-NMSC-006, § 16. The trial judge may only

substitute the judge’s damages determination for the jury’s if “it appears that the

amount awarded is so grossly out of proportion to the injury received as to shock the

conscience.” Sandoval vy. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-

Po 7 Rr

19] 0

| 20, 146 N.M. 853, 215 P.3d 791 (internal quotation marks and citation

omitted).

<7; New Mexico’s “analytical framework for reviewing the grant of a

Nava, _2004-NMSC-039. 4 16

respects. the macyv_of
espects_ the y Ol

tA > NAV? > i >

determining damages. When a judge exercises the limited authority to override a

jury’s determination, the judge must provide “a clear articulation of how and why

damages are excessive.” A/lsup’s Convenience Stores, Inc., 1999-NMSC-006, 417

Specifically, the order of remittitur “must be supported by express reasons”

establishing that the jury acted based on “passion, prejudice, partiality, sympathy,

undue influence or some corrupt cause or motivel,]’ Nava, 2004-NMSC-039, 4 16

(internal quotation marks and citation omitted), or that “the jury has mistaken the

measure of damages.”!° A//sup’s Convenience Stores, Inc., 1999-NMSC-006, § 16

(internal quotation marks and citation omitted).'! If the judge “sets forth certain

!OThe parties disagree about (1) whether the absence _of.a “clear articulation

The-pa disagree absence of a “clear articulation
of how and why damages are excessive,” A//sup ’s Convenience Stores, Inc., 1999-
NMSC-006, § 17, suffices, standing alone, to warrant reversal; (2) whether the

appropriate remedy for such error_is_reversal_with instructions _to_amend_the
judgment consistent with the jury’s verdict or reversal for a further explanation of
the judge’s reasons; (3) whether the explanation in this case was sufficiently clear
and specific; and (4) whether Plaintiff was required to preserve this claim of error

and if so, whether she preserved it. Because we reverse on other grounds, we do not
address these questions.
''We analyze the remittitur granted in this case by applying the standard our

Supreme Court approved of in A//sup’s and Nava. This Court has indicated—as had
our Supreme Court prior to A//sup ’s—that New Mexico law recognizes two tests for
determining whether an award is shockingly excessive. E.g., Chavez v. Atchison,

Topeka & Santa Fe Ry. Co., 1967-NMSC-012, 9 13, 77 N.M. 346, 423 P.2d 34.
Compare Sandoval v. Chrysler Corp., 1998-NMCA-085, § 9, 125 N.M. 292, 960
P.2d 834 (“New Mexico case law provides two tests for determining whether an

reasons for which the appellant asserts there is a lack of support in the record, the

burden then shifts to the appellee to show that the [judge] was correct.” Nava, 2004-

NMSC-039, 4 16 (internal quotation marks and citation omitted). We will affirm

only if the appellee shows that “the opinion of the trial judge is demonstrably more

reliable than that of the jury[.|” A//sup’s Convenience Stores, Inc., 1999-NMSC-006

17.

A. Back Pay

473 The jury awarded $239,451 to compensate Plaintiff for lost back pay for two

years and ten months, which is the amount of time that Plaintiff was unemployed

between her termination and the time of trial. The judge remitted this award to

award is so excessive that it shocks the conscience: (1) whether the evidence, viewed
in the light most favorable to plaintiff, substantially supports the award; and (2)
whether there is an indication of passion, prejudice, partiality, sympathy, undue

influence or a mistaken measure of damages on the part of the fact[-|finder.”
(internal quotation marks and citation omitted)); Morga v. Fedex Ground Package
Sys., Inc., 2018-NMCA-039, 4 12, 420 P.3d 586 (same), cert. granted, 2018-

NMCERT-____ (No. S-1-SC-36918, June 4, 2018); Salopek v. Friedman, 2013-
NMCA-087, ¥ 30, 308 P.3d 139 (same); Wachocki v. Bernalillo Cty. Sheriff's Dep't,
2010-NMCA-021, 9 48, 147 N.M. 720, 228 P.3d 504 (same), separate holding aff'd,

2011-NMSC-039, 150 N.M. 650, 265 P.3d 701; and Sandoval, 2009-NMCA-095,
44 13-17 (same); with Nava, 2004-NMSC-039, | 16-20 (describing only the second
test as part of “the analytical framework” governing remittitur in New Mexico,

id. 916, and concluding that that test had been satisfied, partly because “the jury was
presented with insufficient evidence to place a high dollar value on [the] plaintiff's
emotional harm,” jd. § 19 (internal quotation marks and citation omitted)); and

Allsup’s Convenience Stores, Inc., 1999-NMSC-006, § 17 (requiring courts to
“apply[ the second] standard”). We do not think anything in this case turns on
whether we frame the inquiry as proceeding under one test or two, and Defendant

has not argued that the analysis under the two tests differs.
51

$84,513, the equivalent of back pay for the 2014-15 fiscal year, based on the

‘

¥ Ge. Ce oe EE GY YY

conclusion that any additional award of back pay “would be speculative with the

evidence that was presented.” We infer from the ruling itself, and the explanation

for it, that the judge reasoned that only through speculation could the jury have found

that Defendant’s retaliation probably caused Plaintiff to be unemployed for more

than one year—i.e. that the evidence did not support a rational conclusion but for the

retaliation, Defendant probably would have renewed Plaintiffs annual contract

beyond the 2014-15 fiscal year.

(733 Defendant has not persuaded us that the judge’s opinion with respect to the

quantity of back pay damages “is demonstrably more reliable than that of the jury.”

Allsup’s Convenience Stores, Inc., 1999-NMSC-006, § 17. We begin with the

presumption that the jury followed the instruction, Britton v. Boulden, 1975-NMSC-

029, | 6, 87 N.M. 474, 535 P.2d 1325, that its “verdict should not be based on

speculation, guess or conjecture.” See Mascarenas v. Jaramillo, 1991-NMSC-014,

q 22, 111 N.M. 410, 806 P.2d 59 (“Damages based on surmise, conjecture or

speculation cannot be sustained.”). The jury did not need to speculate to find that it

was more likely than not that Plaintiff would have remained employed as a director

through the time of trial had Defendant not retaliated against her. Importantly, the

jury instructions required Plaintiff to prove by a preponderance of the evidence that

the retaliation “contribute[d]” to her not being employed by Defendant through the

time of trial. As we have explained, the jury had a reasonable basis for rejecting

Defendant’s affirmative defense —that—it__would have terminated — Plaintiff's

Ct Ww SE ta Y

employment even if she had not engaged in protected activity. And, as described in

our affirmance of the district court’s reinstatement order, the jury also heard

evidence that Plaintiff's career at the college was ona positive path until the reprisals

began. Plaintiff had previously and repeatedly renewed her annual employment

contracts, had received praise and recognition—including a recent promotion—from

her superiors, and had been tasked with implementing a revitalization project

projected to last several years. From this evidence the jury could have concluded,

reasonably and without speculation, that Plaintiff would have remained in her

position as campus director at the time of trial if Defendant had not retaliated against

her.

‘744 Defendant argues that the positions Plaintiff held before her removal as

Director of the El Rito campus no longer existed after the 2014-15 fiscal year; that

Plaintiff had been employed pursuant to one-year employment contracts that

Defendant could have declined to renew for legitimate reasons; and that there was

no evidence that the El Rito revitalization plan continued after the 2014-15 fiscal

year. Defendant contends that Plaintiff failed to present evidence “of a highly paid

director conducting programs and events to revitalize the El Rito campus in recent

years.” But Plaintiff was not required to prove that her campus director position and

the revitalization project continued to exist despite Defendant’s retaliation against

her. Instead, Plaintiff's burden under the jury_instruction was_to_prove_that_if

stead, tif urden_under_ the _jury_instruction

Defendant had vot retaliated against her, it is more likely than not that she would

have remained in a director position. The jury was instructed that “[a]n act is a

‘cause’ of damages if it contributes to bringing about the damages and _if [the]

damages would not have occurred without it.” As we have explained, the jury could

have concluded that it was more likely than not that without the retaliation, Plaintiff

would have remained in the director position through the time of trial. We recognize

that financial considerations or other factors apart from retaliation might have caused

Defendant not to renew Plaintiff's contract after the 2014-15 fiscal year. Yet the jury

was not compelled to reach that conclusion. It was free to conclude, as 1t must have

in returning its verdict in accordance with the jury instructions, either that (1)

retaliation was probably the only cause and that the other factors were probably not

causes or (2) the causes were probably a combination of retaliation and the other

factors. Speculation was not necessary to reach either conclusion.

75} We hold that the evidence substantially supports the jury’s award of back pay

damages and that the verdict does not shock the conscience.

B. Emotional Distress

{76 With respect to emotional distress, the judge provided the following

justification: “[G]iven the testimony in this case and the amount of damages, I do

believe that the damages awarded are excessive, and that those damages would have

been the result of sympathy or prejudice.” As we understand this explanation and

a a tk

the judge’s ruling on the remittitur motion, the judge concluded that $180,000 was

$90,000 more than necessary to compensate Plaintiff for the emotional harm she

suffered, and the judge inferred that unidentified sympathy or prejudice must have

accounted for the $90,000 difference between his opinion and the jury’s. We

recognize that a sufficiently large variance between the evidence of harm and the

amount of damages can support an inference that improper considerations influenced

the jury’s verdict. See Nava, 2004-NMSC-039, § 20 (affirming remittitur because

the jury’s award was “so unrelated to the injury and actual damages proven as to

plainly manifest passion and prejudice rather than reason or justice” (internal

quotation marks and citation omitted)); Vivian, 1961-NMSC-093, 4 14 (inferring

that a “grossly excessive” verdict resulted from “passion, prejudice, partiality,

sympathy” or the application of an incorrect measure of damages). However,

Defendant has not demonstrated that such a variance exists in this case.

177; The jury heard evidence that Plaintiff suffered from significant emotional

distress beginning in October 2013, when Defendant reprimanded her and removed

her from her position as campus director in retaliation for whistleblowing. Plaintiff

testified that the retaliation amounted to being “punished severely for trying to do a

good job” and explained that Defendant’s actions came as a shock to her. When she

1] was removed and transferred, she was “shoved in a corner with nothing to do [her]
21 job with” and “completely ostracized from the entire campus community.” This had

a negative impact on her self-confidence in the workplace. Her physician

recommended that she see a counselor to “adjust to the punishment,” and she did so

several times between October 2013 and June 2014. However, she was unable to

continue with mental health treatment as a result of her termination and resulting

loss of health insurance. Her termination ended a relationship with the college that

she had developed over the course of more than four years, during which she devoted

a great deal of time to her work, earned positive reviews until the reprisal began,

took the initiative to create and implement a plan to revitalize one of Defendant’s

campuses, and was promoted to campus director. Plaintiffs depression continued

while she was unemployed, as she endured the stress of losing her job, her income,

her insurance, and her residence on campus. She struggled to get up in the morning

and found it impossible to socialize. At the time of trial, nearly three years after her

termination, Plaintiff, though still unemployed, was doing better emotionally. '

783} Determining how much money would justly compensate Plaintiff for the

emotional harm she described entails the exercise of subjective judgment. Cf

Mathis, 1956-NMSC-074, § 8 (“In every case of personal injury a wide latitude is

"Defense counsel did not cross-examine Plaintiff about the nature, intensity,

or duration of her emotional harm.
56

allowed for the exercise of the judgment of the jury[. |”); Powers v. Campbell, 1968-

NMSC-111, 49,79 N.M. 302, 442 P.2d 792 (recognizing that the amot

SENAY > TI TF . 4 EGE CoS EEE Git

and suffering awards “rests with the [fact-finder’s] good sense and deliberate

judgment” about “what is just compensation” based on the facts and circumstances

of the individual case). Neither judges nor juries have a mathematical formula or

precise measuring tool that will generate a single correct answer to the difficult

problem of assigning monetary value to a person’s suffering. See Sweitzer v.

Sanchez, 1969-NMCA-055, § 19, 80 N.M. 408, 456 P.2d 882 (‘[T]here is no

standard by which damage from emotional distress may be measured.”’); Powers,

1968-NMSC-111, 4 9 (recognizing that there is no “fixed measure of compensation”

for pain and suffering); Montgomery ex rel. Montgomery v. Vigil, 1958-NMSC-133,

411,65 N.M. 107, 332 P.2d 1023 (“We recognize the difficulty of determining what

is proper recompense for the pain and suffering of the plaintiff in this or any other

case.”); Mathis, 1956-NMSC-074, ¥ 8 (‘There is no standard fixed by law for

measuring the value of human pain and suffering.”); Sandoval, 1998-NMCA-085,

4 13 (T]he valuation of pain and suffering is a difficult, inexact undertaking at

best.”); Grammer v. Kohlhaas Tank & Equip. Co., 1979-NMCA-149, 9 58, 93 N.M.

685, 604 P.2d 823 (“No one can measure another’s pain and suffering[.]’’).

Reasonable people who conscientiously consider the same evidence can arrive at

different answers.

79 In our view, that is what happened in this case. We presume that the jury

[P]laintiff’ when it awarded $180,000. The judge disagreed, concluding that

Plaintiff's emotional harm did not warrant $180,000, though it was substantial

enough to warrant $90,000. We think that both the jury and the judge selected

amounts within a reasonable range in light of the facts. Plaintiff presented evidence

that she suffered from significant emotional harm over a prolonged period of time,

while she was employed and after she was terminated, as a result of unlawful reprisal

that derailed Plaintiff's career, which had been on a positive trajectory for years until

Defendant began retaliating against her. The jury could have reasonably concluded

that $180,000 was just compensation and that a lower amount was insufficient based

on the likely emotional impact of the type of retaliation Defendant directed at

Plaintiff, the severity of the emotional harm that the jury believed was likely to flow

from the damage to her career and finances, her testimony about the specific ways

in which her depression manifested itself, and the jury’s assessment of her demeanor

while testifying. The jury’s opinion about damages is presumptively correct, and

Defendant has not persuaded us that the judge’s opinion “is demonstrably more

reliable than that of the jury.” A//sup ’s Convenience Stores, Inc., 1999-NMSC-006,

417. The difference of opinion between the jury and the judge therefore does not

justify the remittitur. To hold otherwise would shrink the deference to juries that

New Mexico precedent mandates and expand j

D ]
LO-p de at GAH}

80} We do not agree with Defendant’s contention that the remittitur here is

consistent with the remittitur our Supreme Court affirmed in Nava. In that case, the

jury found that the plaintiff's emotional distress damages for being subjected_to

sexual harassment in the workplace were $285,000, an amount equal to the

plaintiffs salary for five years. Nava, 2004-NMSC-039, ¢¥ 2, 16, 18-19. The judge

remitted the verdict to $90,250, concluding that it was based on “either sympathy or

an improper motive to punish [the d]efendant.” /d. ¢ 17. In support of this

conclusion, the judge found that: (1) “[the pJlaintiff was not fired, demoted,

suspended, or disciplined”; (2) “[the p]laintiff presented no evidence of concrete

special damages”; (3) “[the p]laintiff received no professional mental health care”;

(4) “the discrimination was limited to a nineteen-month period”; and (5) “[the

pllaintiff received two-and-a-half times the amount requested in her closing

argument.” /d. But no similar facts are present in the case before us. In contrast to

Nava, here (1) Plaintiff was both disciplined and terminated; (2) Plaintiff presented

evidence of concrete damages in the form of lost income and benefits; (3) Plaintiff

received professional mental health care for several months, stopping only because

she lost her health insurance; (4) no evidence narrowed the duration of Plaintiff's

emotional distress to a time frame that would call the jury’s verdict into question;

1} and (5) the verdict did not exceed any requested amount as Plaintiff did not request
2a specific amount. Because of these significant differences between Nava_and this
3] case, Nava does not support affirmance here. '3

813, Defendant has not carried its burden of demonstrating that this is an extreme

case in which it is necessary to correct an emotional distress verdict so excessive as

to shock the conscience.

'3Plaintiff and Defendant invite us to compare the facts and verdict in this case
with the facts and verdicts in other cases. Whether such comparisons may. be of any

use is not entirely clear. Compare Montgomery, 1958-NMSC-133, 4 11 (deeming “‘it
helpful to consider other verdicts in similar cases insofar as it is possible to make
such comparison” but explaining that “each case must be ruled chiefly upon its own

facts and circumstances” (internal quotation marks and citation omitted)), and Nava,
2004-NMSC-039, ¥ 19 (making such comparisons), with Sandoval, 2009-NMCA-

095, 718 (“We are skeptical about the usefulness of comparing awards for pain and
suffering in other cases.”); Robinson v. Mem’! Gen. Hosp., 1982-NMCA-167, 4 20,
99 N.M. 60, 653 P.2d 891 (stating that a comparison of the verdict at issue to those
in other cases was improper because “the question of excessive damages must be

determined from the evidence in this case”); Sweitzer, 1969-NMCA-055, { 5 (stating
that “[w]hat this [C]ourt may have done in other cases, . . . [was] of no consequence”
because the measure of damages must be determined from the evidence in each case

(internal quotation marks and citation omitted)). Assuming without deciding that
courts may compare similar cases despite the wide latitude the law gives juries in
assessing emotional distress damages and the inexactness of such assessments, we

decline to do so here because the parties have not cited cases that are factually similar
enough to allow any meaningful comparison. Another obstacle to helpful
comparison is that the verdicts in several of the cited cases are two or three decades

older than the verdict in this case. Because of the impact of inflation over long spans
of time, we doubt that the verdicts in such dated cases could serve as useful
yardsticks for measuring the verdict in this one, even if the cases were factually

similar.
60

IQ
ae

VI. Interest on Back Pay

The final issue_on appeal is whether the district_court erroneously denied

Plaintiff's request for post-judgment interest on her damages for back pay. Under

NMSA 1978, Section 56-8-4(D) (2004), the state enjoys sovereign immunity from

awards of interest on judgments “except as otherwise provided by statute or common

law.” The issue here is one of first impression: whether the WPA provides for a

statutory exception in Section 10-16C-4(A), which states that a public employer

found to have violated the WPA “shall be liable” for, among other things, “two times

the amount of back pay with interest on the back pay.” Because our analysis hinges

on statutory interpretation, our standard of review is de novo. See Cates, 2017-

NMCA-063, ¥ 14.

{833 Three precedents of our Supreme Court interpreting Section 56-8-4(D) shape

our analysis. In Trujillo v. City of Albuquerque, 1998-NMSC-031, {§ 44-47, 125

N.M. 721, 965 P.2d 305, the question was whether NMSA 1978, Section 41-4-19(B)

(1991), which explicitly barred awards of pre-judgment interest against state entities

and employees, implicitly provided for awards of post-judgment interest. The Court

explained:

18
19

Section 56-8-4(D) contemplates that the state and its political
subdivisions will not be immune from post-judgment interest where a

20
21
22

cam eae}

statute or the common law explicitly provides. Section 41-4-19(B) does
not so provide. The Section does not expressly state that the immunity
provided to the state and its political subdivisions for post-judgment

interest 1s waived under the TCA.
61

Trujillo, 1998-NMSC-031, § 47. The Court applied Section 56-8-4(D) again in

Gonzales v. New Mexico Department of Health, 2000-NMSC-029, 9§ 37-38, 129

N.M. 586, 11 P.3d 550, this time to NMSA 1978, Section 28-1-13(D) (1987,

amended 2005), a provision of the NMHRA, which “states that, with respect to

actual damages and attorney[] fees, “the state shall be liable the same as a private

person.’ ” Gonzales, 2000-NMSC-029, 4 37. The Court held that Section 28-1-13(D)

does not create a statutory exception for purposes of Section 56-8-4(D). The Court

reasoned, in pertinent part, that “Section 28-1-13(D) makes no mention of the

assessment of interest,” and that the plaintiff “offered no authority suggesting that

the phrase ‘actual damages and reasonable attorney|] fees’ should be expanded to

include interest.” Gonzales, 2000-NMSC-029, § 38. The Court reaffirmed Gonzales

in Nava, 2004-NMSC-039, § 22, holding that the plaintiff was “not entitled to post-

judgment interest for her claim under the NMHRA because Section 28-1-13(D) does

not explicitly waive the [s|tate’s immunity from post-judgment interest.” Nava,

2004-NMSC-039, § 23.

{84} Critically, unlike the statutes in Trujillo, Gonzales, and Nava, Section 10-16C-

T7/

4(A) explicitly imposes hability for “interest” on the state and its subdivisions. See

§ 10-16C-2(C) (defining “public employer” to include, among other things, “any

department, agency, office, institution, board, commission, committee, branch or

N
&

district of state government”; “any political subdivision of the state... that receives
62

or expends public money from whatever source derived”; and “any entity or

no doubt that the Legislature intended to waive sovereign immunity for “interest”

on back pay. To conclude otherwise would render the word “interest” meaningless,

contrary to a “favored canon of statutory construction—the maxim that the

[L]egislature 1s presumed not to have used any surplus words in a statute[ and that

therefore] each word is to be given meaning.” State ex rel. Helman v. Gallegos,

1994-NMSC-023, 4 32, 117 N.M. 346, 871 P.2d 1352. So, in contrast to the issues

before our Supreme Court in 7rujillo, Gonzales, and Nava, the question in this case

is not whether the statute implicitly waives immunity for interest but instead whether

the explicit waiver for “interest” encompasses post-judgment interest.

{85} We find the answer in the plain language of Section 56-8-4 and Section 10-

16C-4(A). See Whitely, 1993-NMSC-019, 4 5 (recognizing that “the plain language

[is] the primary indicator of legislative intent”). We begin with Section 56-8-4,

which addresses each type of interest in a separate provision: post-judgment interest

in Subsection A and pre-judgment interest in Subsection B. This is significant

because the sovereign immunity provision in Subsection D creates an “exempt[ion]

from the provisions of this section except as otherwise provided by statute or

common law.” /d. (emphasis added). By its plain language, Subsection D applies to

all of the provisions of Section 56-8-4, exempting the state and its subdivisions from

both post-judgment interest (Subsection A) and pre-judgment interest (Subsection

when the Legislature enacted the WPA, including Section 10-16C-4(A), it was

aware that Section 56-8-4(D) would immunize the state from both pre- and post-

judgment interest on back pay awards unless the Legislature explicitly provided for

a waiver of some kind. See [In re Kira M., 1994-NMSC-109, ¥ 15, 118 N.M. 563,

883 P.2d 149 (“We presume the [L]egislature is aware of existing law when it enacts

legislation.”’); Janet, 2013-NMCA-037, § 20 (interpreting the WPA in light of the

“principle that the Legislature is fully aware of both statutory and common law when

crafting statutes”). The choices before the Legislature were therefore whether to

waive immunity, which it clearly did, as we have explained, and whether that waiver

should include both types of interest or just one of the two. By selecting the generic

word “interest” in Section 10-16C-4(A), rather than more specific language, the

Legislature waived immunity for both pre- and post-judgment interest on awards of

back pay. Had the Legislature intended to waive immunity for just one type of

interest and preserve immunity for the other, it could have easily done so by, for

example, simply inserting “pre-judgment” or “post-judgment” before “interest.” See

Chatterjee v. King, 2011-NMCA-012, 4 15, 149 N.M. 625, 253 P.3d 915

(recognizing that “the Legislature knows how to include language in a statute 1f 1t so

desires”), rev’d on other grounds by 2012-NMSC-019, 280 P.3d 283. Instead of

narrowing the scope of the waiver in this manner, the Legislature chose not to limit

the type of “interest” in any way.To conclude that “interest includes only pre-

de He do Ga v¥ ey = SEAL de He SEAN

judgment interest and excludes post-judgment interest, we would have to rewrite the

statute by adding the word “pre-judgment.” We will not do so because the statute

makes sense as written. See State ex rel. Barela v. N.M. State Bd. of Educ., 1969-

NMSC-038, 4 7, 80 N.M. 220, 453 P.2d 583 (“We are not permitted to read into a

statute language which is not there, particularly if 1t makes sense as written.”);

Martinez v. Sedillo, 2005-NMCA-029, 4 7, 137 N.M. 103, 107 P.3d 543 (“We will

not rewrite a statute.”).

86} Defendant argues that Section 10-16C-4(A) does not meet our Supreme

Court’s explicitness requirement for waivers of immunity because the statute does

not include the phrase “post-judgment interest.” If Defendant is correct, then the

Legislature must use a phrase such as “pre-judgment and post-judgment interest on

the back pay,” rather than just using the word “interest,” if it wishes to waive

immunity for both types of interest. Neither Section 56-8-4(D) nor the precedent

interpreting it mandates this hyper-technical approach. The teaching of 7rujillo,

Gonzales, and Nava is that courts may not infer a waiver; a waiver exists only when

a statute explicitly makes the state liable for interest. Section 10-16C-4(A) does so.

And it would serve no useful purpose to require the Legislature to add unnecessary

adjectives such as “pre-judgment” and “post-judgment” to modify the noun

“interest” because its broad meaning is clear without such elaboration. Requiring

2| superfluous language would undermine the Legislature’s objective by draining all
3] meaning from the statutory mandate that public employers be held liable for “interest
Alon the back pay” and instead treating public employers as immune from such
5] liability. We decline to do so
6] 487} We hold that by explicitly making public employers liable for “interest on the
7| back pay” in Section 10-16C-4(A), our Legislature waived sovereign immunity for
8|| post-judgement interest pursuant to Section 56-8-4(D).
9] CONCLUSION
10] 88:3 | We reverse the orders regarding remittitur and post-judgment interest, affirm
11}}as to all other issues, and remand for further proceedings consistent with this
12] opinion, including any proceedings necessary to resolve Plaintiff's request that
13] Defendant pay her litigation costs and reasonable attorney fees for this appeal
14] pursuant to Section 10-16C-4(A).
15] <9} IT ISSO ORDERED. an
6 (hf
17 ZACHARBA A. IVES, Judge
18} WE CONCUR
1 _ 2 Md
20] J MILES HAN

a ere DUFFY, ffudge

September 28, 2020- Melissa R. Velasquez v. Regents of Northern New Mexico College, No. A-1-CA-36781

Testo completo

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