Burke v. State of New Mexico
696 F. App'x 325
| 10th Cir. | 2017Background
- Heather Burke worked as an IT employee at New Mexico General Services Department (GSD) from January 2013 and alleges she discovered pay disparities (men earning ~9–12% more) and other unlawful conduct by coworkers and supervisors.
- After reporting pay disparities, security/code violations, and misconduct to supervisors and officials, Burke alleges retaliation: reduced duties, suspension, hostile work environment, and being targeted after disclosing a coworker’s threatening behavior and sensitive-data mishandling.
- In May 2015 Burke alleges supervisor Baltzley disclosed her cancer diagnosis and other private information to coworkers; Burke later spoke to a reporter and also found a document in a GSD parking lot with her medical and personal data.
- Burke was suspended in 2015; her union declined to arbitrate. She later accepted a constructive discharge in July 2016 and sued state actors in state court; the case was removed to federal court and the district court dismissed her complaint and denied leave to amend.
- On appeal the Tenth Circuit affirmed dismissal of several claims but remanded for further proceedings on certain claims: privacy (Fourth Amendment), wage discrimination (FPWA/EPA), and New Mexico Whistleblower Protection Act (WPA) claims, permitting targeted amendments (e.g., naming GSD where required).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eleventh Amendment / jurisdiction over State | Burke contends removal waived Eleventh Amendment immunity | State argued sovereign immunity bars suit | Burke forfeited removal argument by not raising it below; dismissal of State affirmed on waiver grounds |
| §1983 Equal Protection (personal involvement) | Burke alleged defendants knew of pay/harassment and failed to act | Defendants argued lack of personal involvement/specific allegations | Dismissed for failure to allege personal involvement; leave to amend denied as futile |
| Fourth Amendment privacy (disclosure of medical info) | Burke alleges Baltzley and others disclosed her cancer and other private info | Defendants argued disclosures were speculative/timing unclear and some info was publicly exposed by Burke herself | Privacy claim dismissed as pled, but court granted leave to amend to cure timing/ personal-involvement defects and remanded |
| Wage discrimination (FPWA/EPA) — pay inequality | Burke alleged men paid more for same work and targeted GSD as employer | Defendants argued lumping defendants and lack of employer named under EPA | Court held pleading as to discrimination adequate but dismissal proper because GSD was not originally named; allowed amendment to add FPWA/EPA claims naming GSD |
| Wage retaliation (EPA) | Burke said she questioned pay disparities and lost duties | Defendants argued she did not engage in protected opposition or show causation | Retaliation claim dismissed for failure to allege protected activity and causal link; leave to amend denied |
| WPA (New Mexico Whistleblower) | Burke alleged she reported unlawful/improper acts (security, code violations, harassment) and was retaliated against | Defendants argued wrong parties sued (GSD not named) and communications/retaliation not specified | Court held WPA claim is plausible as to employer-level relief; allowed amendment to name GSD and dismissed individual-capacity WPA claims; remanded to proceed on WPA claims against employer |
| LMRA / hybrid §301 claim | Burke alleged collective-bargaining violations and union refusal to arbitrate | Defendants argued GSD is a state agency and thus not an "employer" under LMRA | Dismissed and leave to amend denied because GSD is a state entity excluded from LMRA |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: factual matter showing plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility and notice pleading principles)
- Village of Willowbrook v. Olech, 528 U.S. 562 (equal-protection "similarly situated" principle)
- Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304 (EPA strict-liability framework and retaliation elements)
- Webb v. ABF Freight Sys., Inc., 155 F.3d 1230 (hybrid §301 actions against employer and union)
- Colby v. Herrick, 849 F.3d 1273 (Eleventh Amendment / official-capacity §1983 principles)
- Flores v. Herrera, 384 P.3d 1070 (New Mexico WPA: limitations on suing officials in personal capacity)