Gonzalez-Aller v. Governing Bd.

ALEJANDRO GONZALEZ-ALLER, Plaintiff, v. GOVERNING BOARD,CENTRAL NEW MEXICO COMMUNITY COLLEGE et al., Defendants.

Civ. No. 17-639 KK/SCY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 14, 2018

MEMORANDUM OPINION AND ORDER

On June 14, 2017, Plaintiff filed a nineteen-count Complaint under the Age Discrimination in Employment Act, Title VII, 42 U.S.C. § 1983, the New Mexico Whistleblower Protection Act, the New Mexico Human Rights Act, and New Mexico common law alleging that Defendants illegally discriminated against him based on his age and national origin and retaliated against him for complaining about the discrimination. This matter is before the Court on Defendants' Motions to Dismiss (Doc. 57) and for Summary Judgment (Doc. 58), filed on July 31, 2018, in which Defendants seek dismissal of or summary judgment as to each of Plaintiff's claims.¹ (Docs. 57,58.) Having reviewed the parties' submissions, the record, and the relevant law, and for the reasons that follow, the Court finds that Defendants' Motion to Dismiss should be GRANTED IN PART and DENIED IN PART, and that Defendants' Motion for Summary Judgment should be GRANTED IN PART and DENIED IN PART.

I. FACTUAL HISTORY²

Plaintiff Alejandro Gonzalez-Aller earned a bachelor's degree in math in 1986; in 1992 he earned a master's degree in math; in 1994 he earned a master's degree in nuclear engineering; and in 2001, he earned a Ph.D. in engineering. (Doc. 69-12 at 1.) Plaintiff was born in Spain in 1953. (Doc. 58 at 29.) From 2013 to 2016, Plaintiff applied for four full-time math instructor positions at Central New Mexico Community College ("CNM").³ This lawsuit arises from the fact that Plaintiff was not selected to fill any of these positions. (Doc. 1 at ¶¶ 19, 27, 31, 42.) In 2013, when he applied for the first position at issue in this lawsuit, Plaintiff had 23 years of teaching experience, including 17 years teaching at CNM as a part-time instructor.⁴ (Id. at 1-2.) Plaintiff also taught at Northern New Mexico College, in Espanola, New Mexico, from 1992 to 2013, at which institution he held several positions, including associate professor of mathematics, dean of the math and science department, and chair of the math and science department. (Id. at 1-2.)

CNM conducts its review of applications for full-time faculty positions in stages. The first stage is a "minimum requirements" or first-level screen at which a hiring committee considerswhether the applicant possesses the essential job-related skills the position requires. (Doc. 69-3 at 4; Doc. 69-7 at 5-7; Doc. 69-29 at 4.) The second stage is a "preferences" or second-level screen at which the committee is to consider specified knowledge, skills, and abilities that add value to a candidate and make the candidate more competitive. (Id.) A candidate who passes the minimum requirements and preferences screens associated with a given position is eligible to be considered for the third stage interview by the hiring committee. (Doc. 58 at 35.) Due to the high volume of applications CNM receives for each full-time teaching vacancy, not every qualified candidate receives an interview; instead, the hiring committee is instructed to interview candidates with the highest scoring preference screens. (Doc. 58 at 37; Doc. 69-3 at 3-4; Doc. 69-5 at 3; Doc. 69-7 at 4-6.) The committee interview format includes both questions and a teaching demonstration, and the committee picks the person (or persons) who perform best in their answers and teaching demonstration to forward to the dean as finalist(s).⁵ The dean performs a fourth stage interview of the finalist(s) before making a final hiring decision.⁶ (Doc. 69-3 at 4; Doc. 69-7 at 5-7; Doc. 69-29 at 4.)

Hiring committees are comprised of CNM faculty members who volunteer to participate. (Doc. 69-5 at 2.) The committees rate and recommend candidates, but ultimately, the dean isempowered to make the final selection. (Id. at 4; Doc. 69-17 at 2.) Hiring committee members are instructed to consider each applicant, including internal applicants who are current CNM employees, based solely on the applicant's application materials and interview. (Doc. 69-5 at 3.) Applications from internal candidates are supposed to be screened as if the committee does not know the applicant. (Doc. 69-32.) During the screening process, committee members are not to consider their personal knowledge of an applicant, or student and peer evaluations of current CNM employees. (Doc. 69-5 at 3.) According to CNM's Employee Handbook, "[i]n filling job vacancies, preference will be given to current [CNM] employees when qualifications and experience are relatively equal in the judgment of management personnel who make the selections." (Doc. 69-3 at 4; Doc. 69-6 at 3, 4.) However, "[t]he offer of part-time employment is not to be presumed or construed as indicating any commitment to a full-time position, or to extend beyond the period of the initial terms of employment." (Doc. 69-6 at 5.)

Position 0601542

On January 17, 2013, Plaintiff applied for position 0601542. (Doc. 69-2.) The minimum requirements for this position included a master's degree in math or a closely related field from an accredited institution, two years of recent experience teaching math at the post-secondary or secondary level, and demonstrated excellent written and verbal communication. (Doc. 58 at 39.) The job posting also indicated several preferences related to teaching experience and abilities and noted that the interview would include a teaching demonstration. (Id. at 39-40.) The hiring committee, of which Defendant Carman was one of ten members, interviewed Plaintiff for this position but he was not hired. (Id. at 37; Doc. 76 at 28.) Rich Calabro selected two applicants, both white, to fill this position—David Heddens, who was 45 years old, and Ella Sitkin, who was 62 years old. (Doc. 58 at 37, 46; Doc. 69-24 at 4; Doc. 76 at 28.)

Position 0601976⁷

On December 16, 2013, Plaintiff applied for position 0601976. (Doc. 69-2.) The record before the Court does not contain a copy of the job posting for this position; however, Defendant Cornish testified that Plaintiff was "qualified in the sense that he passed through the preferences screening and got an interview," and Plaintiff does not dispute this testimony. (Doc. 69-29 at 5.) A hiring committee interviewed Plaintiff for this position, and he was one of three applicants the committee forwarded to Defendant Cornish for final consideration. (Doc. 69-31.) The committee members gave the first finalist, David Blankenbaker, a total interview score of 35; they gave Plaintiff a total interview score of 17; and they gave the third finalist a total interview score of 15. (Doc. 69-31.) Defendant Cornish selected Mr. Blankenbaker, a 46-year-old white male, to fill the position. (Doc. 69-26; Doc. 69-27 at 2; Doc. 69-29 at 4.) When Mr. Blankenbaker declined the offer of employment, Defendant Cornish closed the position without selecting another applicant from the finalist pool. (Doc. 69-29 at 4-5.)

Position 0602431

On January 19, 2015, Plaintiff applied for position 0602431. (Doc. 69-2.) Plaintiff passed the minimum requirements screen but not the preference screen for this position, and the hiring committee, of which Defendants Cornish and Carman were members, did not interview him. (Doc. 58 at 51, 55; Doc. 69-2; Doc. 69-4.) The minimum requirements for this position included a master's degree in math or a closely related field, and at least two years of teaching experience at the college level. (Doc. 58 at 48.) The preferences included a Ph.D. in math, and experience inspecified educational methods. (Id.) In his application for position 0602431, Plaintiff responded "Yes" to the question, "[d]o you possess a Ph.D. in Mathematics?" (Id. at 60.) However, his cover letter, resume, and transcripts reflected that he has a master's degree in math, a master's degree in nuclear engineering, and a Ph.D. in engineering. (Doc. 69-11 at 1; Doc. 69-12 at 1; Doc. 69-16 at 3.) A "preference screen" summary for this position indicated that Plaintiff's "degree claims" were "inaccurate." (Doc. 58 at 51.) Defendant Cornish selected two applicants to fill the position: Charles Mundy-Castle, a 40-year-old white male, and Kenneth Anglin, a 28-year-old white male. (Doc. 58 at 61-62; Doc. 67-7 at 5; Doc. 69-38.) Mr. Mundy-Castle has a master's degree in math, and Mr. Anglin has a master's degree in applied math. (Doc. 69-36; Doc. 69-28.) At the time, neither Mr. Mundy-Castle nor Mr. Anglin had a Ph.D. (Id.; Doc. 69-38.)

Position 0602805

On January 14, 2016, Plaintiff applied for position 0602805. (Doc. 69-2.) The minimum requirements for this position included a master's degree in math, or in a closely related field with at least 18 credit hours of graduate-level math or statistics, and at least two years of teaching experience at the college level. (Doc. 69-42 at 2.) The listed preferences included a Ph.D. in math or statistics. (Id.) The hiring committee, of which Defendant Cornish was a member, did not interview Plaintiff for this position. (Doc. 69-2; Doc. 69-45.) An "Applicant List" attached to Plaintiff's summary judgment response indicates that Plaintiff "[d]id not meet preferred qualifications" for this position. (Doc. 69-43 at 1.) Lane McConnell, the applicant Defendant Cornish selected to fill it, was a 32-year-old white male. (Doc. 69-43 at 2; Doc. 69-33 at 2.) Mr. McConnell has a Ph.D. in applied mathematics. (Doc. 69-33 at 5.) At the time, Mr. McConnell's college-level teaching experience included six semesters as an instructor of record, and nine quarters as a teaching assistant. (Id.) He was employed as an instructor at UNM from August2013 through January 5, 2016, the date he applied for position 0602805. (Id. at 8; Doc. 69-43 at 2.)

II. DEFENDANTS' MOTION TO DISMISS

Federal Rule of Civil Procedure 12 authorizes a court to dismiss a complaint for "failure to state a claim...