Diaz v. City of Tucumcari

HERMALINDA DIAZ, Plaintiff,

v.CITY OF TUCUMCARI, Defendant.

No. CIV 11-0090 JB/CG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date: December 19, 2011

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed August 5, 2011 (Doc. 22)("MSJ"). The Court held a hearing on November 30, 2011. The primary issues are: (i) whether Plaintiff Hermalinda Diaz has established a genuine issue of material fact on her claim of race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e- to 2000e-17; (ii) whether Diaz has established a genuine issue of material fact on her claim of race discrimination in violation of the New Mexico Human Rights Act, N.M.S.A. 1978, § 28-1-1 to -15 ("NMHRA"); and (iii) whether Diaz has established a genuine issue of material fact on her claim of retaliation under the NMHRA. The Court will grant in part and deny in part the MSJ. The Court will grant the MSJ in favor of Defendant City of Tucumcari with respect to Count I. Because that decision disposes of all the federal claims in the case, the Court will decline to exercise supplemental jurisdiction over and will not decide Counts II and III of the Complaint. The Court will dismiss Counts II and III without prejudice.

FACTUAL BACKGROUND

The material facts are largely undisputed. The City of Tucumcari, located in Quay County, New Mexico, is Diaz' former employer. See Complaint for Wrongful Termination of Employmentas the Result of Retaliation and for New Mexico Commonlaw [sic] Tort, and for Punitive Damages ¶ 1, at 1, filed January 26, 2011 (Doc. 1)("Complaint"); Response by Plaintiff Hermalinda Diaz to Defendant's Motion for Summary Judgment ¶ 1, at 1, filed August 29, 2011 (Doc. 26)("Response")(setting forth this fact).¹ The City of Tucumcari hired Diaz on May 13, 1993. See Complaint ¶ 12, at 3; Memorandum Brief of Defendant City of Tucumcari in Support of Motion for Summary Judgment ¶ 1, at 2, filed August 5, 2011 (Doc. 23)("Mem. MSJ")(setting forth this fact); Response at 5 (not disputing this fact). Diaz was originally hired for a six-month part-time position as Clerk of Record. See Affidavit of Hermalinda Diaz ¶ 3, at 2 (executed August 26, 2011)(Doc. 26-1)("Diaz Aff."); Response at 5-6 (setting forth this fact).² Diaz worked at the TucumcariHousing Authority, where she served as a Program Specialist. See Complaint ¶ 12, at 3; Mem. MSJ ¶ 1, at 2 (setting forth this fact); Response at 5 (not disputing this fact). Diaz was hired under a grant, and she lived in public housing. See Response at 5 (setting forth this fact); Reply at 1 (not disputing this fact).

At all times relevant to the Complaint, Diaz was employed as a Program Specialist with the City of Tucumcari. See Complaint ¶ 5, at 2. Among the duties of the Program Specialist are, according to United States Department of Housing and Urban Development's ("HUD") and the City of Tucumcari's procedures, gathering information for Section 8 applicants,³ preparing leases and contracts, and keeping accurate records. See Affidavit of Clara Rey ¶ 9, at 2 (executed August 5, 2011) filed August 5, 2011 (Doc. 23-1)("Rey Aff."); Mem. MSJ ¶ 2, at 2 (setting forth this fact); Response at 6 (not disputing this fact). Persons who seek assistance from the Tucumcari Housing Authority are required to meet certain financial guidelines. See Rey Aff. ¶¶ 6-7, at 2; Mem. MSJ ¶ 6,at 2 (setting forth this fact); Response at 7 (not disputing this fact). One of the Program Specialists' jobs is to obtain the necessary information to see if the individuals qualify. See Rey Aff. ¶¶ 9, at 2; Mem. MSJ ¶ 6, at 2 (setting forth this fact); Response at 7 (not disputing this fact). HUD sets these guidelines. See Rey Aff. ¶¶ 6-7, at 2; Mem. MSJ ¶ 6, at 2 (setting forth this fact); Response at 7 (not disputing this fact). HUD requires yearly audits of the program to make sure that the guidelines are followed. See Rey Aff. ¶¶ 6-7, at 2; Mem. MSJ ¶ 6, at 2 (setting forth this fact);Response at 7 (not disputing this fact). The City of Tucumcari and its employees' failure to follow these guidelines could result in loss of the funds needed to operate the program. See Rey Aff. ¶¶ 6-7, at 2; Mem. MSJ ¶ 6, at 2-3 (setting forth this fact); Response at 7 (not disputing this fact). Diaz also worked with applicants, preparing leases and contracts for public housing. See Response at 6 (setting forth this fact); Reply at 1 (not disputing this fact).

Diaz' direct supervisor was Wilhelmina Martin. See Rey Aff. ¶ 4, at 1; Mem. MSJ ¶ 3, at 2 (setting forth this fact); Response at 6 (not disputing this fact). Martin became Diaz' supervisor in approximately January of 2008. See Complaint ¶ 14, at 3; Rey Aff. ¶ 4, at 1; Response at 3 (setting forth this fact); Reply at 1 (not disputing this fact). Martin could speak Spanish. See Rey Aff. ¶ 14, at 3; Mem. MSJ ¶ 3, at 2 (setting forth this fact). Martin could speak very little Spanish, however. See Diaz Aff. ¶ 3, at 2; Response at 6 (setting forth this fact).⁴ Martin would ask for help from Diaz to interpret for her during application interviews. See Diaz Aff. ¶ 3, at 2; Response at 6(setting forth this fact).⁵

On or about July 16, 2009, while at work, Diaz was involved in and had a conversation with a former City Commissioner. See Complaint ¶ 15, at 3; Mem. MSJ ¶ 4, at 2 (setting forth this fact); Response at 6 (not disputing this fact). That conversation was in Spanish. See Complaint ¶ 15, at 3; Mem. MSJ ¶ 4, at 2 (setting forth this fact); Response at 6 (not disputing this fact). Martin overheard Diaz' conversation with the former Commissioner. See Complaint ¶ 16, at 3; Mem. MSJ ¶ 5, at 2 (setting forth this fact); Response at 6-7 (not disputing this fact). The City of Tucumcari contends that, during that conversation, Diaz discussed information relating to the Commissioner's brother. See Employee Corrective Action/Counseling Form at 12 (dated September 9, 2009) filed August 5, 2011 (Doc. 23-1)("Corrective Action Form"); Mem. MSJ ¶ 5, at 2 (setting forth this fact).⁶ Under the Housing Authority's rules, a discussion about a client would be a breach of the HousingAuthority's confidentiality policy, which prevents disclosure of any information about clients without authorization. See Corrective Action Form at 12; Rey Aff. ¶ 8, at 2; Acknowledgment of Confidentiality Provisions at 7 (dated July 17, 2006), filed August 5, 2011 (Doc. 23-1)("Acknowledgment"); Mem. MSJ ¶ 5, at 2 (setting forth this fact).⁷ The brother was not a client, however, and the Commissioner was asking questions about completing the application to assist his brother with the application. See Diaz Aff. ¶ 5, at 2-3; Response at 7 (setting forth this fact).⁸ No personal information disclosed. See Diaz Aff. ¶ 5, at 2-3; Response at 7 (setting forth this fact). The conversation was in regards only to completing the application. See Diaz Aff. ¶ 5, at 2-3; Response at 7 (setting forth this fact).⁹ In any case, the Corrective Action Form indicates that Martin reprimanded Diaz for disclosing personal information. See Corrective Action Form at 12;Respondent's Proposed Resolution Form at 14, filed August 5, 2011 (Doc. 23-1)("Resolution Form"); Mem. MSJ ¶ 5, at 2 (setting forth this fact).¹⁰

On September 11, 2009, Martin prepared a written reprimand summarizing concerns that she had about Diaz' job performance and advising her that she needed to show improvement. See Corrective Action Form at 12; Mem. MSJ ¶ 7, at 3 (setting forth this fact).¹¹ Martin identified three specific areas: (i) she was in violation of HUD policies by failing to have leases signed and contracts were missing; (ii) she had disclosed information in violation of policy; and (iii) she had failed to complete an online certification needed for her position. See Corrective Action Form at 12; Mem.MSJ ¶ 7, at 3 (setting forth this fact).¹² Other than warning her that she needed to show immediate improvement in these areas, Diaz received no discipline. See Corrective Action Form at 12; Mem. MSJ ¶ 7, at 3 (setting forth this fact).¹³ Diaz did not, however, need to improve in these three areas. See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁴ First, the original lease andcontract would be sent to the landlord for a signature, and a copy of the unsigned lease and contract would be in the file until the landlord returned the signed lease. See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁵ Second, Diaz states that she never disclosed personal information about any clients with the housing program. See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁶ For nine months, there was no director assigned, and the program was running smoothly.

See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁷ During that period, the City of Tucumcari had two maintenance persons to clean apartments and to repair anything that needed to be fixed, a bookkeeper, an inspector, and Diaz, as Program Specialist for both the Section 8 and Public Housing Authority Programs. See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁸ Third, at the time of the certification workshop, Diaz' mother passed away; Diaz was prepared to take the testing for certification, but Martin would not let her take the test. See Diaz Aff. ¶ 7, at 3-4; Response at 8 (setting forth this fact).¹⁹

After being written up for her conversation with the former Commissioner, Diaz onSeptember 24, 2009, filed a grievance and a complaint/claim with the United States Equal Employment Opportunity Commission ("EEOC") and with the New Mexico Human Rights Division ("NMHRD"), contending that she had been discriminated against on the basis of her race, specifically for speaking Spanish. See Charge of Discrimination at 13 (dated September 24, 2009), filed August 5, 2011 (Doc. 23-1)("Sept. 24, 2009 Charge of Discrimination"); Mem. MSJ ¶ 8, at...