*1
Ana Cross-Appellant, DEPARTMENT
NEW MEXICO OF
HEALTH, Center, Vegas Las Medical
Defendant-Appellant Cross-Appel-
lee. 24,645.
No.
Supreme Court of New Mexico.
Sept.
OPINION FRANCHINI, Justiсe. four-day found After a Vegas Las Medical Center
that Defendant (LVMC) Plaintiff Ana retaliated (Gonzales) pursued a dis- after she Hu- crimination claim under the New Mexico - Act, 1978, §§ 28-1-1 to man NMSA (1969, through prior to as amended amendments). and 2000 brought alleging Ana *4 against that LVMC had discriminated her origin. Hispanic of her national because 28-l-7(A) (1987,prior § to 1995 NMSA amendment). In the New Mexico Hu- (HRC) Rights man Commission concluded had failed to make a of discrimination. then court for a trial appealed to the district de 28-l-13(A) 1978, § novo under NMSA jury that she had determined against but that discriminated been the hands of had suffered retaliation damages was awarded and attor- LVMC. She directly ney’s appeal to fees. LVMC filed 28-l-13(C) of the this Court under Section Act, and Gonzales filed cross-appeal. affirm the determinations of the trial court. presents the follow- (1) challenges proceedings
ing to the below: refusing trial court to whether the erred (2) claim; dismiss Gonzales’s retaliation refusing to trial court erred whether the changed structure admit evidence about the and crisis in November 1995 hotline (3) it; with whether involvement Gonzales’s refusing to admit trial court erred (4) order; and evidence of the HRC decision refusing to trial court erred whether the could mit- admit evidence that Gonzales have by working on igated damages a differ- (5) hotline; tidal court and whether the ent jury refusing to instruct on erred damages. duty mitigate to Gonzales’s cross-appeal, In asks the (1) following issues: Court address the by failing to thе district court erred whether Lombardi, Colon, Louis N. San- G. Walter stronger LVMC for award sanctions Fe, Cross-Appellee. Appellant for ta discovery alleged and destruction abuses (2) evidence; Burke, Fe, the trial erred Appellee whether James A. Santa respect to her discrimination Cross-Appellant. (a) Hospital At that Administra- by refusing dispa- on time instruct Hernandez, M.D., (b) Pablo impact, declining tor of LVMC was rate an instruc- conducting monthly practice Equal Employment who had tion on a federal based (EEOC) meetings convey information to breakfast Opportunity regulation Commission (e) During a staff. breakfast the entire LVMC relating disparate impact, refusing early meeting in fall of late summer minority may that a instruct contract for Dr. Hernandez described the person discriminate of the same staff to outpatient services and invited the background; and whether the dis- ethnic suggest program ideas Gon- regarding attorney’s trict court erred fees SM/MMHS. LVMC, zales, (a) Psychologist II at did not reducing attorney’s fees because Gonzales (b) particular meeting. attend this only partially fail- was successful at legal work to award person who did was Harold One attend (e) HRC, failing done before the Psychologist response Pullings, also a II. judgment and attor- award interest on the ideas, Pull- request for to Dr. Hernandez’s ney’s fees. telephone ings thought of a crisis hotline manage during basis could on-call he claims, Regarding hold supervised off-duty Pullings was his hours. concluding rеasonable Sturm, Ph.D., Director of Thomas was a victim of retaliation and *5 Psychology Department. He de- affirm trial court on this also issue. We Sturm, suggested to Dr. who scribed the idea ruling affirm the trial court’s not to admit the Pullings proposal submit a to Dr. Hernandez. evidence that LVMC claims should have been Dr. also recommended that least Sturm introduced to rebut Gonzales’s of retali- person should work on the hotline one other ation, to as well as the court’s decision ex- backup capacity. Pullings approached regard- clude evidence and instructions II, Grano, Psychologist Rudy who another mitigation. question As for the agreed to with him. The crisis hotline work Gonzales, affirm claims of the trial court’s presented to Dr. idеa was Hernandez. After jury concerning dispa- refusal to instruct the qualifi- consulting with Dr. Sturm about the impact, against a minori- rate Grano, Pullings and Dr. Hernandez cations of ty by minority, regulation and the EEOC project advertising for approved the without relating disparate impact. to affirm the We notifying Psychology rest of the bids or attorney’s trial court’s determination that Pullings began working Department staff. fees should not be awarded for areas in those on hotline in November of with prevail which at trial or in Gonzales did not joining him a month Dr. Her- Grano later. the discrimination claim before the HRC. begin that to nandez testified the need also affirm the court’s determinations not to urgent. program was judg- assess on interest fees or the impose greater discovery ment and not to November On against sanctions LVMC. management that of the crisis learned Pullings. A
hotline had been awarded to few I. FACTUAL AND later, PROCEDURAL days complained Dr. that she Sturm
BACKGROUND Pullings award to was un- she believed the fair. that Dr. Sturm told her She testified A. The Crisis Hotline that, Pullings approved, if she could work on backup every was other weekend the summer LVMC the hotline capacity. him that not awarded a contract from the Mexico She told she was New Department provide outpatient participation; in such minimal she of Health to interested Migu- qualified was to assume Pull- mental health services to clients San believed she counties; program ings’ manager of the hotline. Gon- el and Mora the new was role opportunity Miguel/Mora to have the same called San Mental Health Ser- zales wanted (SM/MMHS). required Pullings proposal had to submit a for the vices The contract that twenty-four Dr. provide operation hour of the crisis hotline. Sturm LVMC tele- phone emergency responded authority crisis hotline for situations. that he did have the was, howev- suggested in favor of The HRC Pullings’ job. that Gonzales.” He her er, hiring practices, noting job, critical of LVMC’s if that she would need she wanted in which particular Dr. “the cavalier attitude proposal own Hernandez submit her job oppor- permitted offer the Center was for consideration. any following selection tunities without state Dr. Hernandez testified process.” personally request or submitted never him if she could work on the hotline asked Appeal to District Court C. any capacity. Gonzales testified application Gonzales, August 29, appeal- have a written would submitted on court, known crisis hotline if she had for the in district seek- ed the decision HRC’s application have afforded the provided by such an would 28- ing a trial novo as Section de 1-13(A). opportunity given Pullings. that was alleged following same as the She first, had been de- complaint: concluded the matter that LVMC She basis her her, finality such that a submission against upon her cided based discriminated demeaning and futile. In a would have been select- origin, national November 1989 dated November ing Pullings memorandum on a hotline with- to work crisis working expressed process” her in viola- “any interest selection out rational 28-l-7(A) Vegas, stating community program in Las tion of Section appreciate hearing Act; second, from [Dr. that she “would retaliat- what and what complaint [she about is available Sturm] because she filed a ed However, qualify.” do to Dr. needs] to 28-1- with the violation Section that, knowledge, 7(I)(2). 8,1997, to his al- May Sturm testified returned though the contract renewed partially party. in favor of each verdict SM/MMHS annually, position manager of the crisis not discrimi- that LVMC did determined opened was never for bids. In the hotline because national nate of her Buff, Ph.D., Gary who had suc- awarding position fall of her a origin *6 Hospital Adminis- Dr. Hernandez as that did retal- ceeded crisis but found LVMC hotline trator, to reorganize filing the crisis hot- a discrim- against charge decided for of iate her eligible to all sent a memorandum awarded line and HRC. The ination with the Gonzales, clinicians, including soliciting $170,000 claim. damages their on the retaliation participation on the hotline. 22, 1997, May trial court On {12} $170,- for judgment a for Gonzales entered Complaint Before the HRC B. 000, attorney’s provid- plus and fees costs 1990, 16, February by sought Gonzales filed law. then additional On ed Gonzales
{10} representation charge attorney’s a of discrimination with HRC. for the fees alleged hearing. that discriminated also LVMC HRC She She received judgment, Hispanic on the of her on impose her basis interest moved origin fees, of violation Section 28-1- trial received national and costs. The court 7(A) hearing Act when failed on matter of of the affidavits and held 28, 1997, part-time posi- attorney’s August or offer to advertise her On fees. of manager attorney’s of crisis hotline. Gon- fees tion as court to Gonzales awarded by costs. complaint $90,384 plus receipts was heard tax and gross zales’s discrimination hearing January impose attorney’s three-day fees the HRC The court declined decision, findings its at trial or 1994. The HRC issued discrimination claim for either the fact, August did and of law claim. The court pursuing of conclusions for the HRC impose judgment. The HRC concluded 1994. interest failed to make a had Hispanic origin motivated national II. DISCUSSION failure to announce formation of the Discovery A. Sanctions position. hotline or her a The crisis offer trial argues that did not have “the found LVMC failing to necessary its discretion discriminatory to find court abused
illegal intent stronger award sanctions of for LVMC choice sanctions discovery discovery process process within abuse of the and abuse falls destruc- 1995, sound tion of In March discretion the trial court evidence. after only will be reversed abuse of discretion. respond timely LVMC had failed to Co., Medina v. Foundation Reserve Ins. interrogatories, manner Gonzales filed 125, N.M. 870 P.2d compel production. motion to See Rule 1- speak “[T]he fact-based” 037(A) discretion is Following NMRA 2000. the failure “requires to look at on us the facts relied suрply requested LVMC all the informa- trial as a court basis for the exercise tion, granted court the motion discretion, of its to determine if facts these July August again citing In supported by are substantial evidence.” Lo provide discovery, LVMC’s failure to Gon- Stores, Inc., pez v. Wal-Mart sanctions, including zales filed motion for 192, 193(Ct.App.1989). 1-037(B). judgment. default Rule judg- request court denied the for default The trial did not abuse its ment but did to compensate order LVMC discretion. The record shows that LVMC’s attorney spent Gonzales’s time discov- compliance discovery frequently with dil- ery in February In But, amount of atory $1615. perfunctory. the record also 1996, Gonzales another motion for filed de- complaints shows that Gonzales’s about the judgment, or, alternаtive, fault in the to limit severity discovery abuses were often defenses, alleging time that LVMC had proba- inflated and that her claims as to the withheld evidence of the existence of another Pullings’ papers specula- tive nature were operated by hotline social workers imposed tive. propor- SM7 The sanctions were grant MMHS. The court offenses, did the motion tional to the and those the trial did award costs and but impose court refused to not warranted were hearing. for the motion and parties. $7968.75 the conduct of the See Gonzales Surgidev Corp., again On December P.2d (deferring to the trial judgment filed a motion for default or other sanctions, court’s about decision absent abuse alleging сomply sanctions failed to LVMC discretion). destroyed discovery evidence. November LVMC informed Gon- Sufficiency B. of the Evidence Pullings nor zales neither his then su- argues pervisor, Gatling, personal Dr. maintained the trial court when it erred refused dis *7 records of on their work the hotline. Pull- miss Gonzales’s claim that took retal LVMC ings stated in a affidavit sworn that he used iatory action her after filed a she prepare monthly the notes to statistical re- complaint with the HRC. ports complet- and then them discarded after LVMC first the in raised issue a motion for reports. argued the that these summary judgment, arguing that Gonzales Pullings notes were medical that records had prove prima had failed to a facie case be duty prеserve they a that and were evi- employ cause she show an did not adverse destruction, critical dence to her ease. Their part ment action on the of LVMC’s LVMC. alleged, precluded learning her from argument in for was continued motions a Sturm, Pullings, what work Dr. and Dr. Ga- directed verdict after the of close evidence tling performed for the hotline. LVMC Gonzales and at the close of and responded question in the documents partial judgment notwithstanding motion for notes, Pullings’ personal were which he was the verdict. All these motions were denied required preserve, not or make and that by the trial court. remaining he had discarded notes after stopped working he the fully on hotline. The trial When a casе has been apparently merits, accepted explana- appellate LVMC’s tried on the court re tion; 1997, in January the court denied the views the record determine whether the for judgment jury’s motion default and support sanctions as evidence is sufficient to the verdict, being not assessing sufficiency well-taken. rather than the
593
Corp.
plaint,
any pro-
v.
prima
participated
facie case.
Wilson
testified
of the
Cf.
Udall,
677, 686,
Id.
ceeding
Rights
under the Human
Act.”
121
916
ex rel.
N.M.
State
1344,
(Ct.App.1996) (stating that
1353
P.2d
interpreting
In
our state
sufficiency
all
appeal is the
of
the issue on
Act,
previously
we have
indicated
evidence,
just
prima facie
that of the
the
rely
appropriate
upon
civil
is
federal
casе).
mo
After the
court denied their
adjudication
guidance
analyzing
for
rights
verdict,
proceeded
tion for directed
Act,
following
a claim under the
with the
ease,
objec
thereby waiving any
with their
reservation:
sufficiency
up
of
tion to the
the evidence
methodology developed
reliance on the
Our
Grants,
point.
City
Martinez
See
v.
courts, however,
federal
should not
the
¶ 14,
vary
specification
upon
in Title VII
and the
tion.” Section
Based
the
prima
evidence,
...
required
facie
from
reasonably
case
the
could
have be-
necessarily applicable
[claimants] is not
retaliatory
lieved that LVMC took
action
every respect
differing
to
factual situations.”
against Gonzales after she filed the HRC
Douglas,
McDonnell
at 802 & n.
U.S.
complaint.
properly
court
The district
de-
Circuit,
that the activity operated social workers at hotline oc- hotline excluding about evidence SM7 MMHS, opposed as to the LVMC hotline period. time curring after the relevant during psychologists, staffed the relevant was also аrgues that it LVMC period. The trial court excluded the evi trial court to exclude evidence for the error about the other and also re dence hotline outcome the HRC about the unfavorable to instruct on the issue of fused hearing concerning investigation and Gon that, mitigation. LVMC claims ini had claim. LVMC zales’s discrimination mitigation trial court not excluded prohibit tially a motion limine filed evidence, it would have shown that substan about the HRC introduction evidence tially equivalent work existed and that Gon that, hearing arguing at trial because the attempts did not zales make reasonable novo, pro the administrative trial was de vigorously disputed it. obtain response, ceedings were irrelevant. equivalency оf the two hotlines career could intro trial court ruled argued that opportunities and also she was fact that she filed the evidence of the duce any job unaware of the second hotline basis for her complaint to establish the opportunities might present.1 Under the claim, testimony permitted but no retaliation ease, and circumstances of this involv facts proceeding or outcome. about the HRC opportunity pay for overtime the issue present parties opportunity had an Both employment, than alternative the trial rather intro jury all the evidence that had been properly court could have concluded evi hearing. During tri during the HRC duced social worker hotline was nоt dence al, however, sought to introduce evi LVMC mitigation. issue of relevant of the HRC determination dence request The trial court denied Gonzales. Jury D. Instructions 28-l-13(A) basis that under Section object Act trial district parties trial Both find no a trial de novo. We court was to be of their submit court’s refusal to certain court; ad of the trial appellate in the decision An error instructions. ted might well have evidence challenged jury mission of the HRC to deter instructions reviews of the the trial into evaluation they correctly sidetracked state the law mine whether focusing than of that decision rather intro supported merits the evidence and are Behrmann, 110 at trial. on the issues at trial. Pittard v. Four Seasons Mo duced Cf. Inn, Inc., 795 P.2d аt N.M. N.M. tor 1-051(A), (Ct.App.1984); see Rule claims LVMC (B) NMRA 2000. to admit its when it refused court erred objects to the trial court’s and to instruct the mitigation evidence mitigation of Generally, of their instruction on damages. a “dis refusal mitigation of no damages. we find error mitigate his or her Because charged employee must evidence, mitigation employment if by securing exclusion damages other hearing. information from the HRC withheld this of the existence of 1. It was the disclosure result, discovery during that led Gon- in 1996 trial court awarded Gonzales hotline As a against LVMC file a motion for sanctions zales to $7968.75 costs. discovery, claiming LVMC had abuse of *10 596 during period. glo counterparts time
agree with the court’s decision to refuse the appeal’s arguing which was based on the excluded to be instruction because Hispanic psychologists’ 13-301 to -08 Introduc- evidence. See UJI overtime earn- (“It NMRA ad- ings proportional represen- tion is the evidence not were their truly hotline, at trial prima duced which determines tation on the this constitutes Regardless of issues determination. disparate impaet-that of facie evidence duty pleadings, it is the of the court to earnings proves distribution of alone that a jury only submit to those issues which discriminatory practice must have existed. supported by and determi- are the evidence case.”) court did not err of
native
refusing
jury instructions
because Gon
claims that the tri
present
did not
of
zales
sufficient evidence
proposed
al court erred whеn it refused her
disparate impact.
identify
a
She did
disparate impact
a
instruction on
facially
practice
neutral
of LVMC or tie the
disparate impact
A
form of discrimination.
earnings
practice.
chart to
See
disparate
a
claim differs from
treatment
Ortega,
Additionally,
597 refusing taliatory argues that trial court erred in acts. was not the She successful assuming pursuing in- the instruction. Even the discrimination claim before the struction contained a correct statement of HRC or district court. Section 28-1- law, 13(D) supported by Rights it must be evidence may of the Human Act be Pittard, at trial. 101 N.M. at interpreted attorney’s introduced See to include for ad- fees P.2d at 688 337. Gonzales does not cite proceedings, ministrative but to re- order any fees, evidence the record that would have complainant prevail. ceive the must supported giving such an instruction. by trial court did not abuse its discretion refusing attorney’s the award of fees for her Attorney’s
E. Fees representation before the To HRC. the ex- tent that the trial court reduced her attor- When the trial court entered a $170,000 ney’s judgment fees because of the failure of dis- for for in accor Gonzales verdict, crimination claim jury’s provided with at we find no abuse of dance also attorney’s provided by for costs and fees as discretion.
law. The trial court
and
received affidavits
Attorney’s
F.
Interest
and
Fees
hearing
attorney’s
held
on the matter of
Judgment
fees, after which it awarded Gonzales attor
$90,384
ney’s
plus gross receipts
fees of
tax
moved the court to
and costs. The award
and
reflected the fees
fees,
judgment,
assess interest on the
pursuing
fоr
costs
the retaliation claim in
any
costs.
trial court
declined
accrual of
district court but
the discrimination
interest, and
claims this
an
prevailed
claim because Gonzales had not
on abuse of discretion. Gonzales bases her
requested
that issue. Gonzales had also
at
claim on what we consider to be an erroneous
torney’s
representation
fees for the
she re
upon
construction of two statutes. She relies
hearing,
ceived
which
trial
1978, 56-8-4(A) (1993),
§
pro
NMSA
which
argues
court refused. On
that “[{Interest
vides
shall be allowed on
awarding
the court erred
full
judgments
payment
decrees
attorney’s
litigation
fees for the district court
(D)
However,
money.”
subsection
of this
by denying attorney’s
fees for the HRC
politi
“[t]hе
statute states that
state and its
legal representation.
exempt
provi
cal subdivisions are
from the
except
pro
sions of this section
as otherwise
attorney’s
The award of
or common law.”
vided
statute
Section
governed by
fees in this
is
28-1-
case
Section
56-8-4(D).
28-l-13(D)
contrast,
Section
13(D)
Rights
of the Human
Act: “In
that,
of the Human
Act states
proceeding
action or
if
under
section the
respect
damages
attorney’s
to actual
complainant prevails, the court in its discre
fees, “the state shall be liable the same as a
may
damages
tion
allow actual
and reason
private person.”
Gonzales contends
fees,
attorney’s
able
and the state shall be
28-l-13(D)
statutory exception
Sеction
is a
private person.”
liable the same as a
requires
pay
LVMC to
interest because
attorney’s
review the award of
fees for abuse
it makes the state “liable the same as a
Beauty
of discretion. Lucero v. Aladdin
private person.”
Inc.,
Colleges,
P.2d
871
(1994).
Analogous principles
367
argu
not find
We do
Gonzales’s
addressing
may
award
First,
persuasive for two
ment
reasons.
rights
be found
federal civil
cases. See
interest award under Section 56-8-4 is not
Eckerhart,
424, 434-36,
Hensley v.
461 U.S.
right,
an absolute
but rather is a matter to
103 S.Ct.