Sinfuego v. Curry Cnty. Bd. of Cnty. Commissioners (360 F. Supp. 3d 1177, 2018)

nited States District Court for the District of New Mexico 2018-12-27

Judiciary and Judicial Procedure

Citations

Full opinion text

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 121)("Motion"). The Court held a hearing on September 25, 2018. The primary issues are: (i) whether Board of County Commissioners of Curry County, New Mexico ("Curry County") violated Plaintiff Amanda Sinfuego's First Amendment to the Constitution of the United States of America rights to freedom of speech, to petition for redress of grievances, and to freedom of association when Sinfuego's employment with Curry County Detention Center ("Curry Detention") was terminated after she petitioned Defendant Lance Pyle, the Curry County Detention Manager, about workplace conditions; met with Pyle about collective bargaining and workplace concerns; texted Curry County Detention Officers ("Curry Officers") notifying them that Pyle wanted to speak with them individually to prevent collective bargaining; signed the Petition from the Curry Officers to Administrator Tori Sandoval at 1, filed June 27, 2018 (Doc. 125-10)("Petition from Curry Officers to Sandoval"), and reported sexual harassment; (ii) whether Curry County took adverse employment actions against Sinfuego when it terminated her employment, removed her from the Special Operations Response Team ("S.O.R.T."), gave her night shifts and shifts in the women's annex, and interfered with her ability to choose her shifts; (iii) whether the Court should find Curry County liable for violating Sinfuego's First Amendment rights when Curry County had no custom dictating retaliation against union activities; (iv) whether Curry County violated the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. § 10-16C-3(A) ("NMWPA"), when it terminated Sinfuego after she complained about Pyle attempting to meet individually with Curry Officers seeking to create a union. Regarding Sinfuego's First Amendment claims, the Court concludes that: (i) Sinfuego's activities related to safety at Curry Detention touch matters of public concern, but Sinfuego's actions and statements related to pay, unionizing, shift bids, and sexual harassment do not involve public concerns; (ii) a jury could find that Curry County engaged in adverse employment actions when it terminated Sinfuego and removed her from S.O.R.T. but not that Curry County took adverse employment actions when it interfered with Sinfuego's ability to choose her shift, and assigned her to the night shift and women's annex; (iii) Sinfuego has not demonstrated a genuine question of fact whether Sinfuego's activities motivated Curry County's actions; and (iv) Sinfuego has not established a genuine question of fact whether Curry County terminated Sinfuego's employment, because she engaged in inappropriate sexual conversations and drawings during work hours in violation of the Curry County sexual harassment policy. Sinfuego has also not established a genuine factual question whether Curry County had a practice of retaliating against individuals engaged in union activities. Having resolved all of Sinfuego's federal claims, the Court will dismiss the state law claims without prejudice.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in the Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 122)("Memo."); in the Plaintiff Amanda Sinfuego's Response to "Defendant Curry County's Motion for Summary Judgment" and "Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment" [Doc. 121-122], filed June 27, 2018 (Doc. 125)("Response"); and in the Reply Brief in Support of Defendant Curry County's Motion for Summary Judgment at 2, filed July 13, 2018 (Doc. 127)("Reply"). Curry Detention hired Sinfuego on August 16, 2010. See Memo. ¶ 1, at 2 (asserting this fact)(citing Deposition of Amanda Sinfuego at 29:8-30:4 (taken April 20, 2018), filed June 12, 2018 (Doc. 122-1)("Sinfuego Depo. Doc. 122-1") ). On October 15, 2012, Gerry Billy, the Curry Detention Administrator in 2012, appointed Sinfuego as the Interim Executive Secretary, an administration and management position -- not a Curry Officer position. See Memo. ¶ 2, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 72:5-73:6; id. at 75:3-15); Response ¶ 1, at 1 (admitting this fact).

On November 16, 2012, Curry Officers sent the Memorandum to County Administration (dated Nov. 16, 2012), filed June 12, 2018 (Doc. 122-2); the Memorandum to County Administration is a petition, which Sinfuego did not sign, because she held the Interim Executive Secretary position. See Memo. ¶ 3, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 97:19-25; id. at 103:14-104:22; Memorandum to County Administration at 1-2); Response ¶ 1, at 1 (admitting this fact). The Memorandum to County Administration was sent "[o]n behalf of all detention officers, who currently work in the Curry County Adult Detention Center of Clovis New Mexico." Memo. ¶ 3, at 2 (asserting this fact)(citing Memorandum to County Administration at 1). In the Memorandum to County Administration, the Curry Officers ask for a pay raise, complain about work conditions, and discuss unionizing. See Memo. ¶ 4, at 2 (asserting this fact)(citing Memorandum to County Administration at 1). The Curry Officers, for instance, state: "We the workers are organizing to negotiate terms of working conditions vacation and pay," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at 1); and they also state: "We have looked into contacting and forming a union which can delegate on our behalf if necessary," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at 1). Regarding the work environment, the Curry Officers complain:

"Every day we step into an environment of danger where in the past three months four Officers have been assaulted," Response ¶ 2(i), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact); and the Curry Officers further state: "Poor leadership is reflected by the county manager and Commissioners who only seem to collect their 100,000 plus wages," Response ¶ 2(ii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact). Finally, the Curry Officers threaten: "We will be contacting the newspapers and making our plea public and only do that so our plight will not be ignored." Response ¶ 2(iii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact).

On December 3, 2012, Sinfuego and Curry Officer Rene Garcia met with Pyle about the Curry Officers' concerns. See Memo. ¶ 5, at 1 (asserting this fact). At the meeting, Pyle noted that Sinfuego, as the Interim Executive Secretary, was "considered part of management," and thus Pyle would not treat her as representing the Curry Officers. Memo. ¶ 5, at 3 (asserting this fact)(citing Transcript of Conference with Lance Pyle, Amanda Sinfuego, and Rene Garcia on December 3rd, 2012 at 1:14-25 (taken Dec. 3, 2012), filed June 12, 2018 (Doc. 122-2)("Conf Tr.") ). Sinfuego informed Pyle that she would be returning to her position as a Curry Officer. See Response ¶ 3(i), at 2 (asserting this fact)(citing Conf. Tr. at 1:20). At the meeting, Garcia did most of the talking. See Memo. ¶ 6, at 3 (asserting this fact). Garcia, Sinfuego, and Pyle discussed the Curry Officers' concerns about safety, including attacks on Curry Officers and the ratio of Curry Officers to inmates. See Response ¶¶ 3(ii)-(iii), at 2 (asserting this fact)(citing Conf. Tr. at 4:17; id. at 5:15-17; id. at 6:15-18; id. at 8:4-12). Garcia explained to Pyle that the Curry Officers' "main concern [is] just [their] safety," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 4:17); that a couple days earlier there "was one person in [the] facility for 200 inmates," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 5:15-17); that "the facility [was] not accommodating for safety and security," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 6:15); and that "there have been a number of attacks on us once again because there is understaff[ing]," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 8:3-12). Sinfuego stated: "[E]veryone is looking toward going to collective bargaining." Response ¶ 3(v), at 2 (asserting this fact)(quoting Conf. Tr. at 11:18-24). Pyle told Sinfuego and Garcia: "We are open to meet as a group, individually, and let [the Curry Officers] know, it's an open door policy and they can contact me and I can meet with them in the evening or weekends if need[ed]." Memo. ¶ 6, at 3 (asserting this fact)(quoting Conf. Tr. at 12:4-6). Curry Detention had a policy deterring employees to "jump management" and communicate directly with Pyle. Response ¶ 4(ii) (quoting Sinfuego Depo. Doc. 125-7 at 114:20-21).

After the meeting, Pyle posted a letter at the time clock and sent letters to the Curry Officers offering to meet with them individually. See Memo. ¶ 7, at 3 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 117:3-19). In a December 4, 2012, letter to Garcia, Pyle wrote:

I will be willing to meet with you in the next week to gather some additional information and to be able to provide that information to the County Commission in an attempt to assist you with some kind of resolution. You also have the right to file for collective bargaining and enclosed is a copy of Curry County Ordinance # 2004-07.

Memo. ¶ 8, at 3-4 (asserting this fact)(quoting Letter from Lance Pyle to Rene Garcia at 1 (sent Dec. 4, 2012), filed June 12, 2018 (Doc. 122-2) ). Pyle wanted the employees to know that unionizing was not in their best interests. See Response ¶ 3(x), at 3 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Comm'rs, D-905-CV-0201400420, Transcript of Trial on Merits at 235:19-22, (Ninth Judicial District Court, County of Curry, State of New Mexico)(taken July 28, 2016), filed June 27, 2018 (Doc. 125-5)("Trial Tr.") ). Sinfuego believed that Pyle "wanted to just stop this, stop this whole possible unionization"

and that Curry Officers feared Pyle. Memo. ¶ 7, at 3 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 120:9-22). "[D]etention officers came to Ms. Sinfuego and told her they did not want to meet with the County Manager because it could cost them their jobs." Response 5(ii), at 4 (asserting this fact)(citing Deposition of Amanda Sinfuego at 34:1-10 (taken April 20, 2018), filed June 27, 2018 (Doc. 125-7)("Sinfuego Depo. Doc. 125-7") ). "People lost their jobs for simple things. That was the reason why no one went to him individually." Response ¶ 5(ii), at 4 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 34:1-10).

On December 6, 2012, Pyle informed Billy via email that Pyle learned through Sinfuego that the Curry Officers refused to meet with Pyle. See Memo. ¶ 9, at 4 (asserting this fact)(citing Email from Lance Pyle to Gerry Billy at 1 (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2) ). Pyle wrote:

Gerry as you are well aware with your experience in management, your Executive Secretary cannot be involved in collective bargaining, neither can your other Curry Detention Management and Administration Staff. Please inform your administrative staff and all other members of management that they are not to interfere or otherwise become involved in anything pertaining to Curry Detention negotiations with County Management and/or County Managers.

See Memo. ¶ 9, at 4 (asserting this fact)(quoting Email from Lance Pyle to Gerry Billy at 1). Billy informed Pyle that Sinfuego filled a temporary position and would be reassigned to a position not in an administrative role. See Response ¶ 3(vi) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2) ); id. ¶ 7(iii) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle).

Also on December 6, 2012, Sinfuego texted the Curry Officers about Pyle's letters. See Memo. ¶ 10, at 4-5 (asserting this fact); Response ¶ 8, at 5 (admitting this fact). Sinfuego wrote:

Hey everyone, it's Amanda just informing everyone about the union. If you do not want to receive information please inform me and I will take you off our texting list. Lance Pyle sent out a packet informing that he wants to meet with us individually and is trying to scare everyone. Please be aware this is harassment and you do not have to go see him. He is trying to separate us and keep us from forming a union. This is intimidation and also illegal. We should be getting a grandfather union coming down next week to help begin our paperwork. Remember that the commission or Pyle cannot do anything to fire us or make us go on leave, that would be retaliation and illegal. We have everyone's support in our admin. We will have more info in our meeting this Monday. Any info please contact me or Rene:)

Memo. ¶ 10, at 4-5 (asserting this fact)(citing Email from Lance Pyle to Steve Doerr at 1 (sent Dec. 13, 2012), filed June 12, 2018 (Doc. 122-2)("Pyle Email") ). See Response ¶ 8, at 5 (admitting this fact). Sinfuego believed that Pyle sent the letters "to scare everyone" and to prevent them from unionizing by saying "he wanted to fix things." Memo. ¶ 11, at 5 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 143:15-16; id. at 148:17 and citing Sinfuego Depo. Doc. 122-1 at 143:14-23; id. at 144:21-145:2; id. at 146:14-147:8; id. at 148:6-149:17). Sinfuego acted improperly by sending the text message during work hours. See Memo. ¶ 12, at 5 (asserting this fact)(citing Deposition of Gerry Billy at 91:22-92:3 (taken April 29, 2018), filed June 12, 2018 (Doc. 122-2)("Billy Depo. Doc. 122-2"); id. at 99:24-100:5).

On December 7, 2012, Stephen Doerr, the County Attorney, emailed Billy about the December 6, 2012, text message. See Memo. ¶ 13, at 5 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 2:19 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 2:19 P.M. Email") ); Response ¶ 1, at 1 (admitting this fact). Doerr wrote that Sinfuego had sent the communication "during work hours," that "her communication needs to stop," and that Billy "should also review the County policy and determine whether or not disciplinary action against Ms. Sinfuego is appropriate." Memo. ¶ 13, at 5 (asserting this fact)(quoting Doerr Email at 1); Response ¶ 1, at 1 (admitting this fact). Doerr assumed that Sinfuego spoke for Billy. See Response ¶ 3(viii), at 3 (asserting this fact)(citing Doerr 2:19 P.M. Email at 1). Doerr later stated: "There were erroneous and false statements in that text, and the statement regarding the Admin support needs to be addressed." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 3:09 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 3:09 P.M. Email") ). Billy responded that he addressed the matter, and it was "time to move on." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Gerry Billy to Steve Doerr at 1 (sent Dec. 7, 2012 at 3:19 P.M.), filed June 12, 2018 (Doc. 122-2) ). Billy subsequently verbally "counseled" Sinfuego, which he considered discipline and "the right thing to do," and Sinfuego neither received further discipline nor sent another text about the union during work hours. Memo. ¶ 14, at 6 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 102:23-104:10; id. at 106:4-20; id. at 108:25-109:16). See Response ¶ 1, at 1 (admitting this fact).

On December 13, 2012, Pyle sent an email to Doerr about the text. See Memo. ¶ 15, at 6 (asserting this fact)(citing Pyle Email at 1); Response ¶ 1, at 1 (admitting this fact). Pyle described the December 6, 2012, text message as "incorrect, misleading, and slanderous," and complained that Sinfuego, on December 10, 2012, "again was distributing material on County time with incorrect, misleading and slanderous information to the Adult and the Juvenile Curry Detention employees." Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). Pyle continued:

This behavior violates several sections of the Curry County Personnel Policy and must be addressed. It is the Detention Administrator's duty/responsibility to take disciplinary action against Ms. Sinfuega [sic] and notify the County Detention employees in writing that the text was sent by Ms. Sinfuego is incorrect, misleading and slanderous. I would request that letter be signed by every employee to guarantee that every employee was notified with a copy being provided to the Personnel Department for the employee files.

If this was any other employee they would be receiving disciplinary action for this conduct/behavior. If the department head refused to address the matter with disciplinary action; disciplinary action would be taken against them. The Curry Detention cannot be treated any differently and the Curry Detention must be held to the same standards.

Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). At the time Pyle sent this email, he did not know that Billy had verbally counseled Sinfuego or that Assistant County Manager, Connie Harrison, had given him erroneous information about Sinfuego distributing material again on December 10, 2012. See Memo. ¶ 16, at 6 (asserting this fact)(citing Affidavit of Lance Pyle ¶ 3, at 1 (dated June 12, 2018), filed June 12, 2018 (Doc. 122-2)("Pyle Aff."); Billy Depo. Doc. 122-2 at 117:5-122:16). After receiving the email, Billy did not further discipline Sinfuego, because "he had 'already taken care of it.' " Memo. ¶ 16, at 6-7 (asserting this fact)(quoting Billy Depo. Doc. 122-2 at 117:5-122:16). Pyle thought that Billy mishandled the situation and wanted "something done about Billy." Response ¶ 11(ii), at 6 (quoting Trial Tr. at 237:6-11). Billy learned, on January 7, 2013, when his contract was due for renewal, that Curry County would not renew his contract as the Curry Detention Administrator, and Billy believed his decision not to discipline Sinfuego further influenced Curry County's decision. See Memo. ¶ 17, at 7 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 19:1-7; id. at 22:19-23:5). A jury found that Billy's refusal to further discipline Sinfuego motivated Curry County not to renew his contract. See Response ¶ 12(i), at 7 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Cty. Comm'rs, D-905-CV-2014-00420, Special Verdict at 1 (Ninth Judicial District, County of Curry, State of New Mexico), filed in state court June 18, 2016, filed in federal court June 27, 2018 (Doc. 125-6) ).

Curry County appointed Tori Sandoval as the Interim Curry Detention Administrator. See Memo. ¶ 17, at 7 (asserting this fact)(citing Deposition of Tori Sandoval at 1 (taken April 19, 2018), filed June 12, 2018 (Doc. 122-2)("Sandoval Depo. Doc. 122-2") ). Sheila Morrison, whom Pyle had asked Billy to fire, and Keith Farkas were transferred to different positions after Billy's departure. See Response ¶ 13(i), at 7 (asserting this fact)(citing Shiela Morrison Testimony at 76:13-24 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-8); id. at 77:1-5; id. at 77:12-14; id. at 77:18-24; Keith Farkas Testimony at 68:3-4 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-9); id. at 68:7-18; Deposition of Gerry Billy at 170:1-21 (taken April 29, 2018), filed June 27, 2018 (Doc. 125-11)("Billy Depo. Doc. 125-11") ). Farkas "was treated like a 'leper.' " Response ¶ 13(ii), at 7 (asserting this fact)(quoting Keith Farkas Testimony at 128:8-10). After Sandoval's appointment, Sinfuego was removed from S.O.R.T., in which she worked as the female training officer, was put on the night shift, and was assigned to the women's annex. See Memo. ¶ 18, at 7 (asserting these facts)(citing Sinfuego Depo. Doc. 122-1 at 154:9-158:1). Sinfuego had seniority over twenty-nine people. See Response ¶ 11(iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:23). "Seniority was thrown [out] the window," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:21-22); Sinfuego "was made an example," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:25), and treated like a "leper," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:24-25). Sinfuego joined a night shift with new people and could not choose her shift wherever she was needed. See Response ¶ 11(iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:1-25; id. at 295:3-15). Billy believed that "[p]lacing someone on midnight shift and stripping them of duties is retaliatory" and that management retaliated against Sinfuego. See Response ¶ 11(vi), at 6 (asserting this fact)(citing Billy Depo. Doc. 125-11 at 166:7-14; id. at 170:25-171:3; id. at 171:8). Pyle was not involved in determining Sinfuego's shift assignments or role in S.O.R.T. See Memo. ¶ 19, at 7-8 (asserting this fact)(citing Pyle Aff. ¶ 4, at 1; Sandoval Depo. Doc. 122-2 at 26:20-27:7). Sinfuego signed a petition to Sandoval about shift bidding, see Response ¶ 14(iii) at 8 (asserting this fact)(citing Petition from Curry Officers to Sandoval at 1), but Sinfuego did not discuss her union activities with Sandoval and Sandoval had no knowledge about such activities until the lawsuit, see Memo. ¶ 19, at 7 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 134:23-135:5; Sandoval Depo. Doc. 122-2 at 16:14-24). On September 4, 2013, Sandoval and Pyle signed a performance evaluation, on which Sinfuego received at least a "3" (Satisfactory) in every category and a total of "3.625." See Memo. ¶ 20, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 167:2-169:11; id. at 171:5-10; Performance Evaluation at 1-5 (dated Sept. 4, 2013), filed June 12, 2018 (Doc. 122-2) ); Response ¶ 1, at 1 (admitting this fact).

On November 15, 2013, Sinfuego informed Garcia about a conversation with Curry Officer Dustin Hughes that occurred during the night of November 12 and 13, 2013, and before Curry Officers Janie Yearley and Dustin Davis. See Memo. ¶ 21, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 171:11-172:23). Garcia requested that Sinfuego make a statement about the conversation, which Sinfuego did. See Response, ¶ 15(i), at 8 (asserting this fact)(citing Statement from Rene Garcia at 1 (dated Nov. 15, 2013), filed June 27, 2018 (Doc. 125-15) ). See also Statement of Amanda Sinfuego at 1 (dated Nov. 15, 2013), filed June 12, 2018 (Doc. 122-2). Yearley gave a statement about the conversation on November 20, 2013. See Response ¶ 15(ii), at 8 (asserting this fact)(citing Statement of Janie Yearley at 1 (dated Nov. 20, 2013), filed June 27, 2018 (Doc. 125-16) ). The conversation began when Sinfuego stated that the restroom was filthy and that "there was pubes on the toilet seat," and the discussion turned to Hughes commenting on his personal grooming habits and sexual preferences. See Memo. ¶ 22, at 8 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1 and citing Sinfuego Depo. Doc. 122-1 at 175:16-24). See Response ¶ 1, at 1 (admitting this fact). Hughes stated: "Well, it can't be my pubes. I keep my balls, gooch and asshole shaved." Memo. ¶ 22, at 7 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1). See Response ¶ 1, at 1 (admitting this fact).

Responding to the report, Lindsay Schwebke, the Curry County Personnel Coordinator, interviewed Sinfuego, Hughes, Yearley, and Davis. See Memo. ¶ 23, at 8-9 (asserting this fact). Hughes told Schwebke in a December 3, 2013, interview that, during the conversation on November 13, 2013, Sinfuego brought up "porn stars." Memo. ¶ 24, at 9 (asserting this fact)(quoting Interview of Dustin Hughes at 1-2 (dated Dec. 3, 2013), filed June 12, 2018 (Doc. 122-3) ). In a statement, Yearley commented: "Officer Hughes was bragging to Officer Davis about 'bleaching his [anus]' Officer Sinfuego said whoa that's to [sic] much information." Response ¶ 15(ii), at 8 (asserting this fact)(quoting Statement of Janie Yearley at 1). Sinfuego, in an interview with Schwebke on December 4, 2013, admitted that she asked, in response to Hughes statements about his grooming habits: "How porn stars do it?" Memo. ¶ 25, at 9 (asserting this fact)(quoting Interview of Amanda Sinfuego at 6 (taken Dec. 4, 2013), filed June 12, 2018 (Doc. 122-3) and citing Sinfuego Depo. Doc. 122-1 at 204:25-207:19). Sinfuego asked the question in a "sarcastic manner." Response ¶ 17(v), at 9 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 220:8-12). Sinfuego did not start or encourage the conversation, see Response ¶ 17(i), (iv) (asserting this fact)(citing Posttermination Hearing Reporter's Record at 89:24-25 (dated Feb. 19, 2016), filed June 27, 2018 (Doc. 125-14)("Posttermination Hearing Reporter's Record Doc. 125-14"); id., at 90:1; id. at 95:5-18), and the conversation did not interfere with her co-workers' work, see Response ¶ 17(iii) (asserting this fact)(citing Posttermination Hearing Reporter's Record Doc. 125-14 at 89:15-17).

Hughes also informed Schwebke that Sinfuego sent Snapchat images with "pictures of people drawing like [penises and balls] and stuff on it" during a "Toxic Talk" employee training. See Memo.

¶ 23, at 9 (asserting this fact)(citing Interview of Dustin Hughes at 2-3 (taken Nov. 26, 2013), filed June 12, 2018 (Doc. 122-2); Sinfuego Depo. Doc. 122-1 at 210:5-7). Sinfuego admitted that she took a picture of Davis and edited the picture to "draw him where [his] chair looked like a penis," and that doing so was not appropriate or acceptable. Memo. ¶ 25, at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 207:20-212:18). Davis laughed at the picture, and Sinfuego shared the picture with "two other co-workers who laughed." Response ¶ 16(i), at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 231:18-22; id. at 299:1-21).

Schwebke reported the investigation to Sandoval. See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke (dated Dec. 16, 2013), filed June 12, 2018 (Doc. 122-3) ). Schwebke explained that Sinfuego admitted to the conversation with Hughes, including stating that " 'there were pubes' and 'a really long pubic hair,' " to sending the picture of Davis, and to "show[ing] [Davis] different people and the teacher, just drawing penises and stuff like that." See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke at 2).

Schwebke's report did not discuss Yearley's statement. See Response ¶ 26(iii), at 10 (asserting this fact)(citing Statement of Janie Yearley at 1). After reviewing the report, Sandoval sent, on December 17, 2013, Sinfuego a "Letter of Intent to Terminate Employment with Curry County." See Memo. ¶ 27, at 10 (asserting this fact)(citing Letter of Intent to Terminate Employment with Curry County from Tori Sandoval to Lindsay Schwebke at 1 (sent Dec. 17, 2013), filed June 12, 2018 (Doc. 122-3)("Letter of Intent to Terminate") ). In the letter, Sandoval wrote:

After reviewing all of the facts and testimonies of these incidents and due to the seriousness of your actions, I am recommending you to be terminated from employment with Curry County. These conversations and actions are considered Sexual Harassment and will not be tolerated. You attended a Workplace Harassment Training on February 22, 2013 and signed an acknowledgment form affirming your awareness of Curry County's zero tolerance policy for Workplace Harassment.

Memo. ¶ 27, at 10 (asserting this fact)(quoting Letter of Intent to Terminate at 2). Sandoval notified Sinfuego that Schwebke would contact her about a pre-determination hearing. See Memo. ¶ 27, at 10 (citing Letter of Intent to Terminate at 2-3). Sandoval based the letter solely on Schwebke's report, see Response ¶ 20(i), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:9-17), and used a form letter, see Response ¶ 20(ii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:20-22). Curry County also terminated Hughes' employment on December 17, 2013. See Memo. ¶ 28, at 10-11 (asserting this fact)(citing Termination of Probationary Employee at 1 (Dec. 17, 2013), filed June 12, 2018 (Doc. 122-2) ); Response ¶ 1, at 1 (admitting this fact).

On December 30, 2013, Sinfuego had a predetermination hearing with Pyle. See Memo. ¶ 29, at 11 (asserting this fact)(Pre-Determination Hearing at 1, filed June 12, 2018 (Doc. 122-3) ). Sinfuego admitted that she engaged in the alleged behavior; she asked Hughes: "Do you mean like how porn stars do it?," Memo. ¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 10:14-21 and citing Sinfuego Depo. Doc. 122-2 at 234:6-235:23), and she "took a picture of another officer, who is a friend" and "drew penises in the picture," Memo. ¶¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 15:9-12 and citing Sinfuego Depo. Doc. 122-2 at 235:24-237:24). Sinfuego acknowledged such behavior was inappropriate, see Memo. ¶¶ 29-30, at 11 (asserting this fact)(citing Pre-Determination Hearing at 10:22-24; id. at 16:15-16), although she did not admit that she violated the Curry County sexual harassment policy, see Response ¶ 21(i) (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 57:20-25). Sinfuego admitted that she had worked at Curry Detention for three years and had attended two training sessions in the last year. See Memo. ¶ 31, at 11 (asserting this fact)(citing Pre-Determination Hearing at 24:3-13).

On January 7, 2014, Pyle terminated Sinfuego's employment. See Memo. ¶ 32, at 11-12 (asserting this fact)(citing Letter from Lance Pyle to Amanda Sinfuego at 4 (dated Jan. 7, 2014), filed June 12, 2018 (Doc. 122-4); Sinfuego Depo. Doc. 122-1 at 241:15-25; id. at 243:14-245:7). Pyle concluded:

I have reviewed the Curry County Personnel Policy # 10-03, Employee Discipline, and you have violated several sections including:

• Failure to follow County Policies, Rules or Regulations

• Non-cooperation by an employee with fellow employees or other personal conduct which substantially interferes with the performance of his/her or another employee's work

• Conduct unbecoming of an employee of Curry County

• Violation of Curry County Workplace Harassment Policy

# a. Oral or written sexual statements, comments, jokes, questions or innuendos

# b. Display of sexually oriented visual items such as calendars, cartoons, photos or posters # k. Discussing their sexual preference, sexual relationships or even sexual matters seen on TV, YouTube, movies, or other formats including books and magazines

Memo. ¶ 32, at 12 (asserting this fact)(quoting Letter from Lance Pyle to Amanda Sinfuego at 3-4). Curry County Personnel Policy # 10-3 entitled Sinfuego to a post-disciplinary hearing before a neutral, third party and to a District Court of the State of New Mexico's review of that hearing's decision. See Memo. ¶ 33, at 12 (asserting this fact)(citing Curry County Personnel Policy # 10-03 at 28-32 (dated Dec. 7, 2010), filed June 12, 2018 (Doc. 122-4) ); Response ¶ 1, at 1 (admitting this fact). Sinfuego had a first pre-disciplinary hearing on February 19, 2014, with Anne Behl, a Human Resources Consultant. See Memo. ¶ 12 n.5; Post-Disciplinary Hearing Decision -- Amanda Sinfuego at 1 (dated March 4, 2014), filed June 27, 2018 (Doc. 125-17) ). Behl determined that the November 12-13, 2013, conversation with Hughes did not constitute sexual harassment under the Curry County Personnel Policy. See Response ¶ 24(iv), at 13 (citing Post-Disciplinary Hearing Decision -- Amanda Sinfuego at 2). When reviewing this hearing, the district court discovered that the tapes of the hearing were inaudible and remanded the matter for another determination. See Memo. at 12 n.5.

Sinfuego had her second post-disciplinary hearing on February 19, 2016, before Bruce Swingle. See Memo. ¶ 34, at 12-13 (asserting this fact)(citing Posttermination Hearing at 1 (taken Feb. 19, 2016), filed June 12, 2018 (Doc. 122-4)("Posttermination Hearing Reporter's Record Doc. 122-4"). At the hearing, Sinfuego acknowledged that "asking someone if they groomed their private parts the way porn stars do is a sexual question," see Memo ¶ 34, at 2 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 100:13-15 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 100:16), and "taking a picture and then drawing a penis on it and sending it to colleagues is displaying a sexually oriented visual item," see Memo ¶ 34, at 12 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 102:2-5 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 102:6). Swingle affirmed Sinfuego's termination and, in his Findings of Fact and Conclusions of Law (dated March 4, 2016), filed June 12, 2018 (Doc. 122-4), Swingle stated his conclusions from the hearing:

After considering the evidence[,] the credibility of the witnesses, and the severity of Ms. Sinfuego's infractions while on duty, e.g., engaging in conversations of a sexual nature for possibly up to an hour during her shift, which prevented staff from performing their jobs; withholding or distorting relevant facts during an administrative investigation; engaging in actions that have the effect of substantially interfering with an individual's work performance, or creating an intimidating, hostile or offensive working environment, both while on shift and during a County sponsored training; and distributing pictures of a "sexual nature" to at least three coworkers, is clearly conduct unbecoming a County employee, violates the County's Workplace Harassment Policy and substantially interferes with the performance of employee duties; therefore, ample basis exists for affirmance of the termination of Ms. Sinfuego's employment with the County.

See Memo. ¶ 35, at 13 (asserting this fact)(quoting Findings of Fact and Conclusions of Law at 5). On Sinfuego's appeal, the Ninth Judicial District Court of the State of New Mexico upheld Swingle's determination, concluding: "The decision was based on substantial evidence, was within the Hearing Officer's authority, and in accordance with the law." See Memo. ¶ 36, at 13 (asserting this fact)(Sinfuego v. Bd. of Cty. Comm'rs for Curry Cty., D-905-CV-206-112, Decision & Order on Writ of Certiorari at 5 (Ninth Judicial District Court, County of Curry, State of New Mexico), filed in state court June 13, 2017, filed in federal court June 12, 2018 (Doc. 122-4) ); Response ¶ 1, at 1 (admitting this fact).

Sinfuego was a hard worker. See Response ¶ 22(iii) (asserting this fact)(citing Deposition of Tori Sandoval at 11:13-16 (taken April 19, 2018), filed June 27, 2018 (Doc. 125-12)("Sandoval Depo. Doc. 125-12") ), and Pyle held grudges, see Response ¶ 21(iv), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11, at 170:1-21). Sinfuego observed sexually oriented items at work, see Response ¶ 18, at 10 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 293:20-25), and she engaged in "crude humor" "to get through the day," see Response ¶ 18(iv), at 10 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 240:19-20 and citing Sinfuego Depo. Doc. 125-7 at 240:12-25; id. at 241:1-2; id. at 241:5-6). Curry Detention employees heard bad language while on the job, see Response ¶ 20(iv), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12, at 53:21-25; id. at 54:1-9), and banter like that in which Sinfuego participated was common, see Response ¶ 21(iii) (asserting this fact)(citing Billy Depo. Doc. 125-11 at 129:7-10). Hughes came to work intoxicated, grabbed a female officer, and swore at Sinfuego and co-workers. See Response ¶ 27(vi), at 14-15 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 261:24-25; id. at 262:7-14). Sandoval knew that Borjas had a relationship with an inmate, see Response ¶ 27(xi), at 15 (asserting this fact)(citing Sandoval. Depo. Doc. 125-12 at 56:2-7). No one complained that Sinfuego's conduct created an offensive or hostile work environment, see Response ¶ 19(iv), at 10 (citing Sandoval Depo. Doc. 125-12 at 52:1-3; id. at 42:6-10), or considered her conduct as creating a "hostile, intimidating or offensive work environment," Response ¶ 20(iii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:12-16). When Pyle asked Sinfuego what she thought a fair punishment would be, she replied: "[S]ince there is no prior sexual harassment charges against me, no one has put any harassment charges against me, written, anything, where I have done anything in poor conduct prior to this, I believe it should be a write-up." Memo. ¶ 31, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 23:10-14). Curry County re-hired Richard Benavidez as a lieutenant and, after hiring him, discovered that, during his first period working at Curry Detention, he had stored pornographic material in his locker. See Response ¶ 23(iv), at 12 (asserting that Curry County hired Benavidez)(citing Sandoval Depo. Doc. 125-12 at 59:10-25); Reply at 8 (asserting that Curry County learned about the pornographic material after hiring Benavidez). "One question or comment made during someone else's lengthy discussion of sexual hygiene and activity does not meet the definition of sexual harassment in the Curry County Personnel Policy." Response ¶ 21(i), at 11 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7, at 300:7-12; Billy Depo. Doc. 125-11 at 167:18-25; id. at 168:2-3; id. at 168:7-8). Billy believed that management should have told Sinfuego "we don't do that" and not written her up for the behavior. See Response ¶ 21(iii), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11 at 129:11-24). Curry County's policies prohibited retaliation for reporting harassment, and retaliation for such reports "was a ground for disciplinary action." Response ¶ 24(iii), at 13 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:22-25; id. at 51:1-7).

Sinfuego believed "As long as you were good with [Sandoval], as long as you were good with certain people, you can get away scot-free." Response ¶ 27(vii) (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 265:10-13). Curry Detention had crowding and understaffing problems. See Response ¶ 27(x), at 15 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 18:8-21). Everyone knew about the bad conditions at the jail and complained about them. See Memo. ¶ 38, at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 81:13-89:9; id. at 272:18-274:24). An anonymous letter was sent asking "why are things not getting done." Response ¶ 27(iv), at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 90:15-24). Sinfuego did not speak with Sandoval about safety and sanitation issues at Curry Detention; Sinfuego spoke with Pyle once, at the December 3, 2012, meeting about conditions at Curry Detention; and no sergeants with whom Sinfuego discussed such matters passed Sinfuego's concerns on to Sandoval or to Pyle. See Memo. ¶ 39, at 15 (asserting this fact)(citing Sinfeugo Depo. Doc. 122-2 at 89:10-94:5). Sinfuego did not speak to Billy about conditions at Curry Detention. See Memo. ¶ 39, at 14 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 38:518; id. at 39:4-14).

PROCEDURAL BACKGROUND

Sinfuego filed suit in the United States District Court for the District of New Mexico, alleging: (i) in Count I, that pursuant to 42 U.S.C. § 1983, the Defendants violated her First Amendment freedom-of-speech rights; (ii) in Count II, that pursuant to § 1983, the Defendants violated her First Amendment right to freely associate; (iii) in Count III, that pursuant to § 1983, the Defendants violated her First Amendment right to petition for the redress of grievances; and (iv) in Count IV, that the Defendants retaliated against her in violation of the NMWPA. See Civil Complaint for Violation of Civil Rights and the Whistleblower Protection Act, Sinfuego v. Curry Cty. Bd. of Cty. Comm'rs, No. CIV 15-0563 JB/GF, filed July 1, 2015 (Doc. 1)("Complaint").

Sinfuego and the Defendants agreed to voluntarily dismiss Sandoval from the case on September 19, 2016. See Stipulated Voluntary Dismissal with Prejudice of all Claims against Defendant Tori Sandoval, filed September 19, 2016 (Doc. 53). The parties also stipulated to dismissal of Sinfuego's claims against Pyle in his official capacity. See Stipulation of Voluntary Dismissal of Claims Against Defendant Lance Pyle in His Official Capacity at 1, filed November 4, 2016 (Doc. 65). Pyle moved for summary judgment and to dismiss the case on qualified-immunity grounds on November 28, 2016. See Defendant Lance Pyle's Motion for Summary Judgment and Qualified Immunity, filed November 28, 2016 (Doc. 69)("Summary Judgment Motion"). Pyle argued that he was entitled to summary judgment, because Sinfuego failed to demonstrate that he violated her First Amendment rights, because his only involvement in her termination was to confirm the termination recommendation, and because the conversation between himself and Sinfuego pertaining to her union activity took place over one year before her termination. See Summary Judgment Motion at 8-9. On February 14, 2017, the Honorable Carmen E. Garza, United States Magistrate Judge for the District of New Mexico, granted the Summary Judgment Motion and dismissed with prejudice all claims against Pyle in his individual capacity. See Memorandum Opinion and Order at 1, 29, 2017 WL 3503380 at *1, *13, filed February 14, 2017 (Doc. 85)(" First MOO").

1. The Motion and the Memo.

On June 12, 2018, Curry County moved for summary judgment, requesting that the Court dismiss with prejudice all claims Sinfuego brings. See Motion at 1. As grounds for its Motion for Summary Judgment, Curry County states that Sinfuego "cannot raise any genuine issue of material fact on any of her First Amendment retaliation claims" or on her NMWPA claim. Motion at 1-2. Pursuant to D.N.M.LR-Civ. 56.1(b), Curry County files a written memorandum to support its motion. See Memo. at 1.

Regarding Sinfuego's § 1983 claims, Curry County asserts that they all fail as a matter of law. See Memo. at 15-16. Curry County cites the test developed from Garcetti v. Ceballos, 547 U.S. 410, 421-26, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 566-67, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (" Pickering" )(the " Garcetti / Pickering test"), which the United States Court of Appeals for the Tenth Circuit adopted for First Amendment retaliation claims. See Memo. at 16. Curry County argues that Sinfuego's claims fail under the Garcetti / Pickering test, as her allegedly protected-speech events are not matters of public concern. See Memo. at 17-19. Specifically, Curry County argues that the December 6, 2012, text message is not de facto protected speech just because it pertains to union activity. See Memo. at 18. Curry County argues that speech is not automatically a matter of public concern because it is union related. See Memo. at 18. Curry County argues that Counts I and III fail, accordingly, as a matter of law. See Memo. at 19.

Curry County then argues that Sinfuego's claims also fail under the Garcetti / Pickering test's fourth step. See Memo. at 19-23. The Garcetti / Pickering test's fourth step requires that the plaintiff show that the allegedly protected activity was a "substantial factor or motivating factor in a detrimental employment decision." Memo. at 19 (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007) ). In a footnote, Curry County opposes Sinfuego's description of any action short of termination as an "adverse employment action." Memo. at 20 n.8. Curry County argues that, while Sandoval allegedly retaliated against Sinfuego, Sandoval could not have known of Sinfuego's allegedly protected activities -- the December 6, 2012, text message -- at the time that she moved to terminate Sinfuego. See Memo. at 20. Regarding Sinfuego's theory of retaliation based on her expressed concerns about the facility's conditions, Curry County argues that Sinfuego has not shown any evidence that Pyle or Sandoval were aware of her statements. See Memo. at 20. Finally, Curry County points to the more than one-year gap between Sinfuego's allegedly protected activities in December, 2012, and her termination in January, 2014, as evidence that retaliation did not motivate her termination. See Memo. at 21-22. Because of these considerations, Curry County argues that Counts I through III fail as a matter of law. See Memo. at 23.

Turning to the Garcetti / Pickering test's fifth step, Curry County argues that the Court should grant summary judgment under each of Sinfuego's First Amendment retaliation claims. See Memo. at 23-25. Curry County argues that the Garcetti / Pickering test's fifth step puts the burden of proof on the defendant, who must show that it would have reached the same employment decision in the protected activity's absence. See Memo. at 23 (citing Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2014) ). Curry County argues that Sinfuego "does not dispute that she engaged in the misconduct for which she was terminated." Memo. at 23. Curry County quotes Magistrate Judge Garza's First MOO, which states: "It was entirely appropriate for [Curry County] to take action against Plaintiff once they determined that she violated the sexual harassment policy." Memo. at 24. Curry County argues that, because Sinfuego's admitted misconduct alone justifies the termination of her employment, the Court should grant summary judgment on Counts I through III. See Memo. at 24.

Curry County concludes its argument pertaining to Sinfuego's First Amendment claims by stating that Sinfuego's claims fail to establish municipal liability. See Memo. at 25-27. According to Curry County, the Tenth Circuit, in Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), establishes a two-prong test for municipal liability; the plaintiff must show: (i) "the existence of a municipal policy or custom" and (ii) "a direct causal link between the policy or custom and the injury alleged." Memo. at 25. As to the first prong, Curry County argues that Sinfuego has never identified any "formal regulation or policy" of "retaliation against individuals involved in collective bargaining." Memo. at 26. Further, Curry County states that Sinfuego cannot establish through evidence that there are sufficient incidents to constitute a "custom," which would be identified through "persistent and widespread ... practices of [local government] officials." Memo. at 26 (internal quotation marks omitted)(quoting Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) ). Curry County argues that, at most, Sinfuego can point to her own termination and may potentially argue that Billy's termination resulted from Curry County's retaliation. See Memo. at 26. Curry County argues that, even if Curry County concedes these two incidents, they do not rise to the level of a "widespread practice or custom." Memo. at 27. Curry County acknowledges that the Tenth Circuit has not set a threshold for the number of incidents to prove the existence of a custom, but it points to other Courts of Appeals that have noted, at a minimum, that two incidents are not sufficient. See Memo. at 27.

Regarding Count IV of Sinfuego's Complaint, Curry County also argues that Sinfuego cannot, as a matter of law, prevail on her NMWPA argument. See Memo. at 27-34. According to Curry County, Count IV alleges that Curry County violated the NMWPA when it terminated Sinfuego's employment in retaliation for her whistleblowing communications. See Memo. at 27. Curry County argues that Sinfuego cannot show that any of her union-related activities constitute "whistleblowing activities," that, when the decision was made to terminate Sinfuego, Sandoval and Pyle were aware of any of Sinfuego's concerns regarding conditions at Curry Detention, and that Curry County had a legitimate, non-retaliatory reason to terminate Sinfuego's employment. See Memo. at 27-34.

2. The Response.

Sinfuego responded to the Motion on June 27, 2018. See Response at 1. Sinfuego argues that there are outstanding issues of material fact that preclude granting the Motion. See Response at 16-27. Specifically, Sinfuego argues that her "unionization efforts and her immediate demotion after Mr. Billy was terminated present a question of fact for the jury." Response at 17.

Regarding her unionization efforts, Sinfuego argues that, contrary to Curry County's assertions, her speech activities were a matter of public concern. See Response at 19-20. Sinfuego specifically points to her December 6, 2012, text message as protected speech, as "informing other officers that the County Manager was attempting to illegally intimidate and retaliate against the Detention officers is a matter of public concern and protected by law." Response at 19. Sinfuego cites the Tenth Circuit, which states that "[t]he First Amendment protects the right of a public employee to join and participate in a labor union." Response at 20 (quoting Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013) ).

As to Curry County's argument that Curry County could not have retaliated against Sinfuego, because Sandoval was unaware of Sinfuego's union-related activities, Sinfuego argues that Sandoval worked in close proximity to Pyle, and it would not, therefore, be possible for Sandoval to have been unaware of Sinfuego's activities. See Response at 21. Sinfuego states that Sandoval was Pyle's "snitch" against Billy and that Sandoval was rewarded with Billy's job after Billy was terminated. See Response at 21. Regarding Sinfuego's expression of concerns at Curry Detention, Sinfuego argues that she voiced her concerns to Pyle at the December 3, 2012, meeting. See Response at 21-22. Based on these facts, Sinfuego argues that Pyle and Sandoval knew of her concerns about conditions at Curry Detention. See Response at 21.

Regarding Curry County's argument that the amount of time between the December 6, 2012, text message and her eventual termination in January, 2014, counsels against a retaliatory motive on Curry County's part, Sinfuego argues that she suffered retaliatory behavior well before her termination. See Response at 22. Sinfuego highlights that she was moved to the "midnight" shift, that she had her seniority and other duties "stripped" from her, and that she was removed from S.O.R.T. as examples of the retaliation that she suffered in response to her union-related activities. See Response at 22.

As to Curry County's argument that Sinfuego's termination was appropriate because she violated the Curry County sexual harassment policy, Sinfuego argues that her actions do not amount to violations of the Curry County sexual harassment policy. See Response at 24-25. Sinfuego disputes Curry County's allegation that she "admitted on multiple occasions that she asked a male coworker whether he groomed his genitals 'like how porn stars do it.' " Response at 25 (quoting Memo. at 23). Sinfuego argues that "one comment or question made during someone else's lengthy discussion of sexual hygiene [as] an activity is not sexual harassment." Response at 25. Sinfuego argues that her comment did not "interfere with anyone's ability to do their job[s]" and that her action does not, therefore, rise to the level of sexual harassment. Response at 25. Similarly, Sinfuego argues that her actions at the "Toxic Talk" training did not create an "intimidating work environment" and that none of her coworkers complained about the picture message that she sent during the "Toxic Talk" training. Response at 25. Sinfuego then highlights other incidents of sexual conduct to argue that Curry County only selectively enforces the Curry County sexual harassment policy. See Response at 27-8.

3. The Reply.

Curry County replied on July 13, 2018. See Reply at 1. Curry County argues that Sinfuego's behavior warranted termination, because she violated the Curry County sexual harassment policy when she participated in an inappropriate workplace conversation and when she disseminated images depicting penises. See Reply at 1. Curry County reiterates its argument that neither Sinfuego's participation in the December 3, 2012, meeting, nor the December 6, 2012, text message, constitute matters of public concern, and both fall short of the Garcetti / Pickering test's requirement. See Reply at 12-13. Curry County contends that Sinfuego's argument that Pyle engaged in "illegal" behavior when he offered to meet with individual officers regarding the formation of a union was, at best, a reckless statement undeserving of First Amendment protection. Reply at 13. Curry County argues that New Mexico law does not prohibit Pyle from offering to meet with Curry Officers, and that Sinfuego's text message was therefore a "deliberately or recklessly false statement." Reply at 14.

Curry County then argues that Sinfuego has failed to show that either her participation in the December 3, 2012, meeting or her sending the December 6, 2012, text message was a "substantial" or "motivating" factor in her termination. Reply at 14 (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d at 1203 ). Curry County cites the Sandoval Deposition, arguing that Sandoval stated that she was unaware of Sinfuego's union-related activities until Sinfuego initiated the current suit. See Reply at 14-15. Further, Curry County argues that, if Sinfuego cannot prove Sandoval's knowledge, Sinfuego also cannot prove her contention that she began to suffer adverse actions at work shortly after the December, 2012, events. See Reply at 15.

Additionally, Curry County reasserts its contention that Sinfuego would have been terminated for her misconduct, regardless of any alleged retaliatory motive on Curry County's part. See Reply at 16. Curry County reiterates Sinfuego's acknowledgement that she took part in an inappropriate workplace conversation, and her admission that she drew penises on a picture and then sent it via Snapchat to three coworkers. See Reply at 17. Regarding Sinfuego's contention that her actions do not rise to the level of "actionable" sexual harassment, Curry County cites the Tenth Circuit, which has asserted that employers have an "interest in eliminating the appearance of impropriety" and do not have to forego taking action until the misconduct has risen to the level of "actionable." Reply at 17 (citing Trant v. Oklahoma, 754 F.3d at 1167 ). Finally, as to Sinfuego's allegations in her Response pertaining to other alleged incidents of sexual harassment, Curry County argues that there is zero evidence that Pyle or Sandoval were aware of any of the other incidents to which Sinfuego alludes. See Reply at 19. Additionally, Curry County asserts that Sinfuego has failed to establish the facts required for municipal liability. See Reply at 19. Curry County asserts that Sinfuego has not identified a formal Curry County policy, nor has she established a pattern that could conceivably be viewed as a "custom" to establish municipal liability. Reply at 19-20.

As to Sinfuego's NMWPA claim, Curry County reiterates that she cannot succeed as a matter of law. See Reply at 20. Regarding the December 6, 2012, text message, Curry County asserts that the allegation in the December 6, 2012, text message is unfounded, as Sinfuego has presented no evidence to support an inference that Pyle was offering to meet with officers for an unlawful purpose. See Reply at 21. Curry County argues that, because Sinfuego lacks evidence that Pyle was attempting to violate the law, her message should not be afforded "whistleblower" protection. Reply at 21. Curry County further argues that Sinfuego does not establish any "causal connection" between the alleged "whistleblowing" activity and her employment termination. Reply at 21. Curry County reiterates that Sinfuego has not presented any evidence to show that Sandoval, who Sinfuego alleges carried out the retaliatory behavior, had any knowledge of Sinfuego's alleged "whistleblowing" activities. Reply at 21. Finally, Curry County asserts that it has proven Sinfuego engaged in behavior that warrants her employment termination, as Sinfuego admitted to engaging in misconduct in the workplace. See Reply at 22. Curry County asserts that, because Curry County has proven Sinfuego's misconduct, it should prevail on its affirmative defense. See Reply at 22.

4. The Hearing.

The Court held a hearing on the Motion on September 25, 2018. See Draft Transcript of Hearing at 1 (taken September 25, 2018)(Court)("Tr."). The Court expressed its reservations that, because of the Garcetti / Pickering test, Sinfuego would have difficulty prevailing on her First-Amendment claims. Tr. at 3:2-6 (Court). Curry County summarized its understanding of the Garcetti / Pickering test. See Tr. at 11:1-12:2 (Smith). Curry County stated that Sinfuego's First Amendment retaliation claims fail at the Garcetti / Pickering test's second prong, as she cannot demonstrate that her alleged speech activities are matters of public concern. See Tr. at 12:22-25 (Smith). Curry County cited Torres v. Pueblo Board of County Com'rs, 229 F.3d 1165, 2000 WL 1346347 (10th Cir. 2000) (unpublished table opinion), in which the Tenth Circuit concluded that union-related speech is not a public concern merely because it touches union activity. See Tr. at 14:15-23 (Smith).

Curry County next argued that Sinfuego's claims fail, because she cannot prove that her allegedly protected activity was a substantial or motivating factor in a detrimental employment decision. See Tr. at 15:3-11 (Smith). Curry County asserted that Sinfuego cannot demonstrate that Sandoval had any knowledge of Sinfuego's union-related activity when Sandoval decided to terminate Sinfuego's employment. See Tr. at 16:14-16 (Smith). Curry County pointed to the Sandoval Deposition, in which Sandoval was asked "a series of questions by plaintiff['s] counsel in which she had ... no knowledge of any union related activities that Ms. [Sinfuego] was engaged in ... prior to the lawsuit being filed." Tr. at 16:16-22 (Smith). Further, Curry County acknowledged that Pyle had knowledge of Sinfuego's union-related activities, but that no evidence suggests that, before the termination, he was involved in any employment decisions regarding Sinfuego. See Tr. at 17:4-10 (Smith). Curry County argued that, as to Sinfuego's termination, the significant gap in time between Sinfuego's union-related activities and her termination precludes an inference that she was terminated for her union-related activities. See Tr. at 18:11-19 (Smith).

Regarding Sinfuego's allegations that Curry County terminated Sinfuego for activities in which other employees had engaged without suffering adverse employment decisions, Curry County attacked Sinfuego's evidence as hearsay and inadmissible. See Tr. at 19:4-16 (Smith). Further, Curry County asserted that Sinfuego cannot establish that Pyle or Sandoval had any knowledge of these alleged events. See Tr. at 19:20-20:6 (Smith).

As to Sinfuego's theory of retaliation based on the expression of her concerns regarding conditions at the Curry Detention, Curry County asserted that Sinfuego admitted in the Sinfuego Deposition that she had addressed her concerns to her immediate supervisors, but that she did not express these concerns ei