Walton v. New Mexico State Land Office (49 F. Supp. 3d 920, 2014)

United States District Court for the District of New Mexico 2014-09-12

Citations

Full opinion text

MEMORANDUM OPINION

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court: on (i) the Defendants’ Motion for Summary Judgment on Plaintiffs Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights, filed November 6, 2013 (Doc. 38)(“MSJ”); and (ii) the Motion for Summary Judgment of Defendants’ Ray Powell, David Britt and Delma Bearden as to Count VI of the Second Amended Complaint on Grounds of Qualified Immunity, filed November 27, 2013 (Doc. 52)(“MSJ QI”). The Court held hearings on April 9, 2014, and April 10, 2014. The primary issues are; (i) whether Plaintiff Peggy Walton was engaged in a protected activity to warrant protection under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and under the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-7 (“NMHRA”); ' (ii) whether a reasonable jury could find that there is a causal connection between the adverse action taken against Walton and her engagement in the protected activity; (iii) whether Walton’s complaints to Donald Britt (“Britt”) constituted a disclosure of a protected disclosure under both the New Mexico Whistleblower Protection ' Act, N.M. Stat. Ann. § 10-16C-1 (‘WPA”); (iv) whether adverse action was taken against Walton because of this protected disclosure; (v) whether a reasonable jury could find that Walton’s political affiliations were a substantial or motivating factor in her termination; (vi) whether there was a violation of Walton’s rights under the First and Fourteenth Amendments to the Constitution of the United States of America; and (vii) whether the termination of an employee because of her affiliation with a prior administration is clearly established under Tenth Circuit and Supreme Court precedent. The Court will grant the MSJ as it pertains to Walton’s Title VII and NMHRA retaliation claims, because Walton has not presented evidence establishing a causal connection between her engagement in a protected activity—reporting Delma Bearden’s (“Bearden”) alleged misconduct—and the adverse action taken against Walton—her termination. Additionally, the Court will grant the MSJ as it pertains to Walton’s WPA claim, because Walton has failed to produce evidence establishing a connection between her protected disclosure and the adverse action taken against her. The Court will deny the MSJ, however, as it pertains to Walton’s Section 1983 claim for violations of Plaintiffs constitutional rights under the First and Fourteenth Amendments. Additionálly, the Court will deny the QI MSJ in its entirety.

FACTUAL BACKGROUND

From January,' 1988, to December 4, 2001, Walton was employed at the Miner’s Colfax Medical Center in Raton, New Mexico, and during her time at the Miner’s Colfax Medical Center, Walton became acquainted with Patrick Lyons, who was at that time a Republican New Mexican state senator. See Plaintiffs Response to Defendants’ Motion for Summary Judgment ¶ 2, at 2, filed December 19, 2013 (Doc. 55)(“Response”)(setting forth this fact); Affidavit of Peggy Walton ¶ 3, at 1, filed December 19, 2013 (Doc. 55-l)(‘Walton Aff.”); Defendants’ Response to Plaintiffs Additional Relevant Evidence (“Are”) ¶ 2, at 1, filed January 17, 2014 (Doc. 59-l)(“Defendants’ Response”)(not disputing this fact). Walton “has been registered to vote as a Republican since approximately 1980.” Response ¶ 1, at 2 (setting forth this fact). See Walton Aff. ¶ 3, at 1; Defendants’ Response, ¶ 1, at 1 (not disputing this fact). Lyons was elected to serve as the New Mexico Land Commissioner (“Land Commissioner”) for a term beginning on January 1, 2007. See Response ¶ 3, at 2-3 (setting forth this fact); Walton Aff. ¶ 4, at 2.

After Lyons was elected, Walton applied for employment at the New Mexico State Land Office (“Land Office”) several times, but did not receive a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶4, at 2; Defendants’ Response ¶ 3, at 1 (not disputing this fact). In January, 2008, Walton told Lyons that she had been applying for positions at the Land Office and that she had not received a response. See Response ¶ 3, at 3 (set-: ting forth this fact); Walton Aff. ¶ 4, at 2; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Walton then asked Lyons whether there were any open position for which she was qualified, and Lyons informed Walton that there were open positions and that she should keepi applying. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants’ Response ¶ 3, at 1 (not disputing this fact). On June 18, 2008, Walton applied for a classified position at the Land Office. See Response ¶ 4, at 3 (setting forth this fact); Walton Aff. ¶ 5, at 2; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Walton was not offered a classified position, however, but instead was offered an exempt Secretary II position, which she accepted, and she began work on August 25, 2008. See Response ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 3, at 4 (also setting forth this fact); Walton Aff. ¶¶ 5-6; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Tin exempt employee serves at the will of the agency head and does not have the protections afforded to classified employees under the State Personnel Act, N.M. Stat. Ann. § 10-9-4(D)(exempting certain government positions from the protections of the Personnel Act). See Response ¶ 15, at 7 (setting forth this fact); Deposition of Sandra Lopez at 18:9-20:13 (taken December 4, 2013), filed December 19, 2013 (Doc. 55-6)(“Plaintiffs Lopez Depo.”); Deposition of Ray Powell at 38:8-39:23 (taken November 26, 2013), filed December 19, 2013 (Doc. 55-5)(“Pow-ell Depo.”); Defendants’ Response, ¶ 15, at 4 (not disputing this fact). Exempt positions exist so that the agency head has the ability to hire people whom the agency head believes are going to assist in implementing the agency head’s policies. See Response ¶ 15, at 7 (setting forth this fact); Plaintiffs Lopez Depo. at 19:9-19:13; Defendants’ Response, ¶ 15, at 4 (not disputing this fact). The Land Commissioner after Lyons—Ray Powell—who had also served as Land Commissioner before Lyons, understands that, historically in the Land Office, exempt employees serve under one elected official and then leave office, and the new elected official has the opportunity to appoint new people into that position. See Response ¶ 15, at 7 (setting forth this fact); Powell Depo. at 38:21-39:8; Defendants’ Response, ¶ 15, at 4 (not disputing this fact).

Walton’s first job assignment at the Land Office involved working in the Commercial Resources Division as a special projects coordinator and lease analyst. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2; Defendants’ Response ¶ 5, at 1 (not disputing this fact). On or about October 22, 2008, Walton accepted the position of director of the commercial leasing section of the Commercial Resources Division, and as director of the commercial leasing section, Walton supervised the lease analysts, including Bear-den, who was an employee whom the first Powell administration had hired. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2-3; Defendants’ Response ¶ 5, at 1 (not disputing this fact).

In early 2009, Lyons instructed Sandra Lopez, the Land Office’s Human Resources Manager, to transfer Walton from the exempt Secretary II position to the only vacant classified position in the Commercial Resources Division, which was an Economist A position. See Response ¶ 6, at 3^4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants’ Response ¶ 6, at 1-2 (not disputing this fact). Lyons also instructed Lopez to reclassify that Economist A position to a General Manager I position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶8, at 3; Defendants’ Response ¶ 6, at 3-4 (not disputing this fact). Walton did not have the credentials to fill the Economist A position; however, Walton was qualified to serve in a General Manager I position, and Walton told Lopez at this time that she was not qualified to serve in the Economist A position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶ 8, at 3.

After the Land Office transferred Walton to the Economist A position, Lopez refused to initiate the paperwork with the State Personnel Office to reclassify the Economist A position to a General Manager I position; after Lopez repeatedly refused to initiate the paperwork for over a year, Lyons directed Walton to bypass Lopez and work directly with the State Personnel office to accomplish the reclassification, which Walton did. See Response ¶ 7, at 4 (setting forth this fact); Walton Aff. ¶ 9, at 3. Lopez later told Elaine Olah that she thought the reclassifying of Walton’s Economist A position to a General Manager I position was improper. See Evidence in Opposition to Defendants’ Statement of Alleged Undisputed Material Facts ¶ 9, at 2 (Doc. 55-8)(“Evidence in Opposition”); Deposition of Loretta Elaine Olah at 54:24-58:7 (taken October 2, 2013), filed November 6, 2013 (Doc. 38-l)(“01ah Depo.”).

The reclassification was approved effective September 8, 2010, and Walton continued to serve as the director of the commercial leasing section of the Commercial Resources Division. See Response ¶ 7, at 4 (setting forth this fact); MSJ (QI) ¶ 6, at 4 (also setting forth this fact); Walton Aff. ¶ 9, at 8; Defendants’ Response ¶ 7, at 2 (not disputing this fact). According to the position assignment documentation form, which describes the General Manager I position, Walton’s responsibilities included management of employees in the Land Office’s Commercial Resources Division, including “decisions to eorrect/discipline staff if unwilling to perform their duties ethically, professionally, and in a non-hostile manner,” and the most challenging aspect of the General Manager I position was the “correction of inappropriate staff behaviors.” MSJ (QI) ¶ 11, at 5. See First Lopez Aff. ¶ 6, at 2-3. On Walton’s manager evaluation form, which was completed on February 22, 2011, one area of evaluation is the management of the Land Office’s Commercial Resources Division staff by, among other things, establishing standards of performance and preparing employee evaluations. See MSJ (QI) ¶ 12, at 6; First Lopez Aff. ¶ 7, at 3.

Lyons served as Land Commissioner for two terms, the second of which expired on December 31, 2010, and did not run for reelection. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). Powell, a Democrat who had served as Land Commissioner immediately before Lyons’ first term, defeated the Republican candidate for Land Commissioner, Matthew Rush, in the November 2, 2010, general election. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). The campaign for Land Commissioner was contentious, and, during the campaign, Powell repeatedly attacked Lyons’ record, and accused Lyons of engaging in unethical conduct and mismanaging State trust lands. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). Lyons publicly stated that Rush would continue the same policies as Lyons if Rush- were elected. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4.

During the summer and fall of 2010, Walton attended a number of Republican campaign events, including rallies for Susana Martinez—a Republican running for. Governor—which Rush also attended. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, at 2 (not disputing this fact). Walton also attended a campaign event for Rush at Rancho de Chimayo restaurant in Española. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, at 2 (not disputing this fact). Walton traveled to the Rush campaign event with Lyons and other Land Office employees. See Response ¶ 9, at 4-5 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, at 2 (not disputing this fact). Land Office employees, including Lopez, knew of Walton’s support of Lyons and the Republican Party. See Response ¶ 9, at 5 (setting forth this fact); Walton Aff. ¶ 11, at 4. On the wall in her office, Walton had a photograph of herself and Governor Martinez, and a photograph of Lyons with a personal note from Lyons to Walton, and during the fall of 2010, Walton observed Lopez study-' ing those photographs. See Response ¶ 9, at 5 (setting forth this fact); Walton Aff. ¶ 10, at 4.

In the November, 2010, general election, Walton voted for Rush, yet, Powell ended up winning the election. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants’ Response ¶ 10, at 2 (not disputing this fact). The day after the election, Walton told Bearden that she had voted for Rush, and Bearden told Walton that she had voted for Powell. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants’ Response ¶ 10, at 2 (not disputing this fact). On or about November 17, 2010, Mark Corley, an associate of KRQE investigative reporter Larry Barker, approached Walton at the back entrance to the Land Office building when Walton arrived at work. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 4-5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Corley informed Walton that Walton’s personal human resources information had become known to him, and he interviewed Walton by asking her questions about the circumstances of her hiring, her transfer from the exempt Secretary II position to the classified Economist A position, and the reclassification of the Economist A position to the General Manager I position. See Response ¶ 11, at 5 (setting forth this fact); Walton’s Aff. ¶ 13, at 5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Walton believed, from the context of the interview, that KRQE intended to portray these events in a negative light. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Walton also believed that the Human Resources Manager, Lopez, had collaborated with others to furnish Walton’s personal employment information to KRQE. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 5. Lopez did help provide Walton’s employment information to KRQE by assisting the Land Office in responding to an Inspection of Public Records Act Request from KRQE television that asked for Walton’s personnel file. See Defendants’ Response ¶ 11, at 3 (asserting this fact); Deposition of Sandra Lopez at 82:12-84:21 (taken December 4, 2013), filed January 17, 2014 (Doc. 59-3)(“Defendants’ Lopez Depo.”).

On or about November 18, 2010, Walton telephoned Powell to inform him about the interview with Corley. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). Walton wanted Powell to know that KRQE was going to broadcast a negative story about Walton and the Land Office. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). On November 21 or 22, 2011, Powell, along with Harry Rel-kin, an attorney whom Powell hired to serve as general counsel to the Land Office, returned Walton’s telephone call. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). During the telephone conversation, Walton informed Powell and Relkin about the circumstances of her hiring, her transfer to the Economist A position, Lyons’ directions to Lopez to reclassify the Economist A position to the General Manager I position, and Lopez’ refusal to follow Lyons’ directions. See Response ¶ 12, at 5-6 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact).

KRQE television broadcast the Barker investigative report on November 23, 2010, and the report was titled: “Cronies move up as officials move out.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 15-16, at 5; Defendants’ Response ¶ 13, at 3 (not disputing this fact). Anchor reporter Dick Knipfing introduced the news segment by saying, among other things, that Walton was “distinctly unqualified” for her position and that her hiring was “rigged.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 16, at 6. Barker began his report with the statement: “Meet State Land Office employee Peggy Walton. How she went from low-level political appointee to high-level division manager in two short years is a fascinating case study in abuse of power.” See Response ¶ 13, at 6 (setting forth this fact); Walton Aff. ¶ 16, at 6. Barker went on to report that the Lyons administration hired Walton as an exempt position and then moved into the classified service before the election—but did so in a misleading and inaccurate manner; he also described the circumstances of Walton’s hiring and the sequence of events that led to her being placed in the General Manager I position. See Response ¶ 13, at 6 (setting forth this fact); Walton Aff. ¶ 16, at 6. State Personnel Office Director, Sandra Perez, who had approved the Economist A to General Manager I reclassification, was interviewed during the Barker report, but Perez deferred to Lyons for an explanation about the reclassification; the report ended with Knipfing stating: “Governor-elect Susana Martinez has promised to fire any political appointee who has been improperly shifted into a classified job.... New Land Commissioner Ray Powell will inherit Walton. It is not clear whether her job is protected.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 16, at 6.

Powell watched the Barker investigative report online within a few days after KRQE broadcast the report. See Response ¶ 14, at 6-7 (setting forth this fact); Powell Depo. at 55:6-55:15; Defendants’ Response ¶ 14, at 3-4 (not disputing this fact). Powell considers Barker to be the “gold standard” in investigative reporting; he believes that Barker’s reports are “thorough and vetted.” Response ¶ 14, at 7. See Powell Depo. at 49:24-50:6; id. at 57:7-57:13. At the time he had no reason to disbelieve what Barker said about Walton, and he understood that the gist “from the report” was that Lyons had hired Walton in an exempt position and then transferred her into a classified economist position. See Response ¶ 14, at 7 (setting forth this fact); Powell Depo. at 58:1-58:12; id. at 60:6-60:12.

Powell took office as Land Commissioner on January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6; Defendants’ Response, ¶ 16, at 4 (not disputing this fact). Powell brought in a number of exempt employees, who replaced the exempt employees from the Lyons administration who resigned effective January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants’ Response, ¶ 16, at 4 (not disputing this fact). These new Land Office employees included Robert Jenks, who served as Deputy Commissioner and reported to Powell; Relkin, who served as Chief Legal Counsel and reported to Jenks; Defendant Donald Britt, who served as Assistant Commissioner over the Commercial Resources Division and reported to Jenks; and Elaine Olah, who served as Assistant Commissioner over the Administrative Services Division and reported to Jenks. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants’ Response, ¶ 16, .at 4 (not disputing this fact).

On January 3, 2011, which was Walton’s first day in the office in 2011, Powell placed a note on the door to Walton’s office that said: “This office is reserved for Donald Britt.” Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7; Defendants’ Response, ¶ 17, at 4 (not disputing this fact). Britt had worked in the first Powell administration, and Powell hired Britt to also serve in. the Second Powell administration as an exempt employee. See Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7. Powell was the person who placed the note on the door to Walton’s office before staff arrived to work on January 3, 2011. See Response ¶ 17, at 8; Powell Depo. at 63:2-63:25. Powell placed notes on office doors for every exempt employee, and he did not know, at that time, that the office he assigned to Britt was Walton’s office. See Defendants’ Response ¶ 17, at 4 (setting forth this fact); Powell Depo. at 63:2-64:11.

On January 3 or 4, 2011, Powell met with the Commercial Resources Division staff, along with Jenks and Britt. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants’ Response ¶ 18, at 4 (not disputing this fact). During the meeting, Powell expressed his opinion that the stewardship and leasing of State Trust Lands under the Lyons administration had not been handled properly, and he stated there would be federal investigations to find out who was involved; Powell stated that “men in suits with guns” were going to come to the office and implied that those “men in suits with guns” would arrest anyone involved in any wrongdoing. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants’ Response ¶ 18, at 4 (not disputing this fact). On January 24, 2011, Britt and Bearden accused Walton of illegally administering a land sale that had closed during Lyons’ term in the latter part of December 2010. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7.

Because Powell had made threatening remarks during the January 4, 2011, meeting about alleged illegal conduct in the Lyons administration, and because Britt had been making comments to Walton about alleged illegal conduct in the Lyons administration, Walton asked her attorney, Linda Hemphill, to contact Powell regarding Walton’s concerns that Walton was being mistreated because of her previous association with the Lyons administration. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7-8. On January 27, 2011, Hemphill delivered a letter to Powell, which laid out Walton’s affiliation with Lyons going back to Walton’s employment at Miners’ Colfax Medical Center, the circumstances of Walton’s hiring and promotion during the Lyons administration, and Walton’s belief that Lopez had inappropriately provided Walton’s confidential personnel information to KRQE news. See Response ¶ 20, at 8-9 (setting forth this fact); Walton Aff. ¶ 21, at 8; Defendants’ Response ¶20, at 5 (not disputing this fact). Hemphill, on Walton’s behalf, asked Powell to admonish his staff that harassment of Walton because of her association with Lyons would be illegal. See Response ¶ 20, at 9 (setting forth this fact); Walton Aff. ¶ 21, at 8; Defendants’ Response ¶ 20, at 5 (not disputing this fact). Powell does not remember taking any action to address the concerns that Hemphill’s letter raised, see Response ¶ 20, at 9 (setting forth this fact); Powell Depo. at 68:3-69:4; Defendants’ Response ¶ 20, at 5 (not disputing this fact), although Powell’s ordinary course of business would be to provide a copy of the letter to Lopez’ supervisors, including Olah and Jenks, see Response ¶ 21, at 9 (setting forth this fact); Powell Depo. at 72:ll-73:3.

At a February 8, 2011, Commercial Resources Division meeting, there were questions about two leases administered during the Lyons administration. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8; Defendants’ Response ¶ 22, at 5 (not disputing this fact). Bearden pointed two fingers at two female Hispanic, Republican Land Office employees in an accusing manner and said, “you two girls worked in the front office” with Lyons, and implied that the two employees knew of improper handling of the leases. Response ¶22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8. Walton reported Bearden’s conduct to Britt, because she felt that the conduct was inappropriate harassment. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8.

On or about February 9, 2011, Walton was told to attend the Assistant Commissioners’ meeting. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8; Defendants’ Response ¶ 23, at 6 (not disputing this fact). Before February 9, 2011, Powell, Britt, or Jenks never asked Walton to attend an Assistant Commissioners meeting. See Response ¶ 23, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8. During the meeting, Walton reported about a request she had received for leasing acreage, and while she gave her report, Relkin rolled his eyes and exchanged glances with Powell. See Response ¶ 22, at 9-10 (setting forth this fact); Walton Aff. ¶ 23, at 8-9. On February 16, 2011, Walton was called into a meeting with Powell; Relkin, Jenks, Olah, Britt, Lopez, and Amy Atchley all attended the meeting. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. The meeting’s purpose was to inform Walton that Atchley was being moved from the Legal Division back to the Commercial Resources Division, where Walton would supervise her. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9; Defendants’ Response ¶ 24, at 6 (not disputing this fact). Walton was not given a reason for the transfer, and the transfer was a surprise to Walton; Atchley served during the Lyons administration and had been transferred from the Commercial Resources Division to the Legal Division, because she had been disruptive in the Commercial Resources Division. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. During the Lyons administration, Walton had written up Atchley for performance and misconduct on several occasions. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. During the Lyons administration, Atchley and a former Land Office employee spread a false rumor that Lyons and Walton were involved in a romantic relationship, and Walton reported to Lopez that Atchley had spread the false rumor. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. During the February 16, 2011, meeting, Lopez and Jenks smirked at Walton throughout the meeting. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶24, at 9.

On or about February 18, 2011, Walton went to lunch with Lyons and expressed her concerns to Lyons about the allegations that a land sale that Walton had administered was illegal; there were other Land Office employees in the same restaurant. See Response ¶25, at 10 (setting forth this fact); Walton Aff. ¶ 25, at 9. Shortly after that lunch, Assistant Commissioner Ralph Gallegos informed Walton that Powell does not believe in going to lunch with his employees, which Walton believed to mean that Powell was aware that Walton had gone to lunch with Lyons. See Response ¶ 25, at 10 (setting forth this fact); Walton Aff. ¶ 25, at 9-10.

In January, February, and March, 2011, Britt made several comments to Walton, in which Britt referred to Lyons, including, among other things, several times saying “have you seen Pat?” or “how’s your buddy Pat.” See Response ¶26, at 10 (setting forth this fact); Walton Aff. ¶ 26, at 10. Related to those comments, on or about February 22, 2011, Britt told Walton “no one in the Land Office respects you,” and on or about February 24, 2011, Britt told Walton about a meeting that Powell and others had with Barker, and taunted Walton by referring to Barker as “your friend Larry.” Response ¶ 26, at 10-11 (setting forth this fact); Walton Aff. ¶ 26, at 10.

In January, February, March, and April, 2011, Bearden became insubordinate and hostile towards Walton. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. Britt moved Bearden’s office next to his and began to direct Bear-den’s work, and although Walton continued to supervise some aspects of Bearden’s work, Britt became Bearden’s primary supervisor. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. Walton remained Bearden’s supervisor, and Bearden reported directly to Walton. See MSJ ¶ 25, at 7 (setting forth this fact); Deposition of Peggy Walton at 79:16-80:12 (taken September 17, 2013), filed November 6, 2013 (Doc. 38-3)(“Walton Depo.”).

Walton observed that Bearden and Britt had a very close relationship, and often met behind closed doors. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. During that same time frame, Bearden made derogatory comments of a sexual and racial nature, which Walton believed were inappropriate and violated Land Office policies. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10.

The only specific reference by Bearden regarding Walton’s gender arose from a single circumstance where Bearden stated that she believed that a “man” was needed to deal with one specific client in one specific instance. MSJ ¶20, at 6 (setting forth this fact); Walton Depo. at 87:12-88:23. No comments were ever made, however, by anyone in a position superior to Walton, that a male was needed to fill her General Manager I position. See MSJ ¶ 21, at 6 (setting forth this fact); Walton Depo. at 84:24-83:9; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Additionally, Bearden’s statements were made in Walton’s presence, but were not directed at Walton. See MSJ ¶ 22, at 6 (setting forth this fact); Walton Depo. at 94:11-101:4; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact).

The Land Office had a non-harassment policy in effect from April, 2004, through March, 2013, which contained a provision that stated that “if any employee believed that she had been subjected to harassment on the basis of race, gender, or certain other classifications, she was required to inform her supervisor or some other designated NMSLO personnel.” MSJ (QI) ¶ 13, at 6. See First Lopez Aff. ¶ 8, at 3. On numerous occasions in February, March, and April, 2011, Walton verbally reported her concerns about Bearden’s conduct to Britt. See Response ¶ 28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10; Defendants’ Response ¶ 28, at 7 (not disputing this fact). On April 7 and 8, 2011, Walton sent Britt electronic mail transmissions in which Walton raised some of her concerns about Bearden’s misconduct. See Response ¶28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10. Britt did not respond to Walton’s electronic mail transmissions, and, to Walton’s knowledge, took no action against Bearden to address Walton’s concerns. See Response ¶ 28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10.

On April 14, 2011, Walton attended a meeting of the State Trust Lands Advisory Board, which assists the Land Commissioner in the formation of policies and programs for the trust. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at 10-11; Defendants’ Response ¶ 29, at 7 (not disputing this fact). The meeting started at 10:00 a.m., but Britt directed Walton to appear at 10:30 a.m.; when Walton arrived, the meeting was already underway, with the Board members, Powell, Britt, Olah, and other Land Office employees already seated. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at ll. The only available seat, where Walton sat, was directly across a conference room table from Powell. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at 11. During the meeting, Powell addressed the Board, and during his presentation, Powell referred to the Barker report and then followed up by stating that he was concerned about employees in inappropriate roles, who were “protected” employees; Powell then stated that the “protected” employees, “for some reason[,] didn’t have to meet the leadership criteria within the division, and somehow got directions from the front office.” See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 30, at ll. Although Powell did not mention Walton by name, Powell was glaring directly at Walton in a threatening and serious manner when he made those remarks. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 30, at ll. Powell was, however, referring to two other employees within the Land Office and not Walton when he referred to “protected employees” at the meeting. See Defendants’ Response ¶ 29, at 7-8 (setting forth this fact); Powell Depo. at 100:11-101-14.

Throughout April, 2011, Bearden’s conduct escalated, and she frequently made comments, which Walton believed were sexually or racially inappropriate; the comments made Walton uncomfortable, and she believed that the comments were improper and could subject the Land Office to liability for creating a sexually or racially hostile work environment. See Response ¶ 31, at 8 (setting forth this fact); Walton Aff. ¶ 31, at 11-12. When Walton verbally addressed Bearden’s behavior to Bearden as these incidents would occur, Bearden became more contentious and accusatory, and Bearden repeatedly justified her behavior and comments to Walton by saying, “I have worked with this administration before,” referring to her employment in the first Powell administration. See Response ¶ 31, at 12 (setting forth this fact); Walton Aff. ¶ 31, at 12.

By memoranda to Britt dated April 29 and April 30, 2011, Walton described Bear-den’s inappropriate conduct, which Walton believed constituted illegal sexual, racial, and religious harassment. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Walton Depo. at 77:10-78:15; Britt Depo. at 76:25-77:17; Defendants’ Response ¶32, at 8 (not disputing this fact); MSJ ¶ 27 (also setting forth this fact). Walton delivered those memoranda to Britt on May 6, 2011. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Defendants’ Response ¶ 32, at 8 (not disputing this fact). Walton reported her concerns to Britt, because the Land Office’s harassment policy provides that a report of harassment can be made to an employee’s supervisor. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12. After receiving the memoranda from Walton, Britt passed them onto Lopez. See Evidence in Opposition ¶ 29 at 5 (setting for this fact); Powell Depo. at 84:10-87:8. Lopez chose, however, not to investigate the allegations against Bearden in spite of the Land Office’s Policy, which requires an investigation whenever a complaint of discriminatory conduct is alleged. See Evidence in Opposition ¶29, at 5 (asserting this fact); Plaintiffs Lopez Depo. at 121:22-123:10; id. at 125:13-126:9; id. at 127:24-133:13. Following Walton’s reports to Britt, Bearden continued to make inappropriate comments of a sexual and racial nature. See Response ¶32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12. Other than these ■ memoranda, which Walton delivered to Britt, Walton never prepared a formal written statement or report concerning Bearden’s behavior, never reported Bearden in any way up the chain of command to Powell, and never reported Bearden to Lopez. See MSJ ¶ 28, at 7 (setting forth this fact); Walton Depo. at 102:10-103:5.

From February, 2011, through the end of her employment, Walton attended weekly leadership meetings, that Powell and Jenks headed; various other Land Office management employees also attended the meetings. See Response ¶ 33, at 13 (setting forth this fact); Walton Aff. ¶ 33, at 12-13; Defendants’ Response ¶ 33, at 9 (not disputing this fact). Many times when Walton gave her reports, expressed her opinion, or participated in the discussion, Powell and Jenks were aloof, would cut Walton off or make facial gestures, and Powell frequently intimidated and threatened Walton in those meetings by making comments, including, “if you don’t like it here we will be glad to help you find a place of your liking.” Response ¶ 33, at 13 (setting forth this fact). See Walton Aff. ¶ 33, at 13.

In June 2011, the General Appropriations Act of 2011 (“Appropriations Act”) the legislatively mandated Reduction in Force (“RIF”), which reduced the Land Office fiscal year 2012 budget, which began January 1, 2011, by $609,000.00 and the number of full-time equivalent (“FTE”) positions within the agency from 153 to 151. See MSJ ¶ 1, at 2 (setting forth this fact); MSJ (QI) ¶ 14, at 6 (also setting forth this fact); Defendants’ Lopez Depo. at 70:3-71:23. Lyons proposed the budget and FTE reduction to the State Legislature in September, 2010, before the November general election where Powell was elected. See MSJ ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 16, at 6 (also setting forth this fact); Olah Depo. at 28:4-28:7; Affidavit of L. Elaine Olah ¶ 2, at 1-2, filed November 27, 2013 (Doc. 52-2)(“01ah Aff.”); Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). After the Powell administration took office on January 1, 2011, Olah and others made significant efforts to save the agency from the budget cut and FTE reductions. See MSJ ¶ 5, at 3 (setting forth this fact); Olah Depo. at 28:19-32:11; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Despite the Powell administration’s efforts to save the agency from any RIF, the Legislature and Governor, through the Appropriations Act, nonetheless imposed both the budget cuts and the RIF Lyons proposed. See MSJ ¶ 6, at 3 (setting forth this fact); MSJ (QI) ¶ 17, at 7 (also setting forth this fact); Olah Depo. at 32:1-32:11; Olah Aff. ¶ 3, at 2; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact).

Starting in February of 2011, Olah designed the RIF. See MSJ ¶ 7, at 3 (setting forth this fact); MSJ (QI) (also setting forth this fact) ¶ 15, at 6; Olah Depo. at 72:21-73:23; Olah Aff. ¶¶ 3-4, at 2; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah, in designing the RIF, determined that' it would be best for one vacant and one filled position to be eliminated, to simultaneously reduce the FTE positions and reduce the budget, as the Appropriations Act required; she ultimately, based on a review of the Land Office’s organizational structure and mission, proposed the elimination of a General Manager I position. See MSJ ¶8, at 3 (setting forth this fact); MSJ ¶ 18-19, at 7; Olah Depo. at 70:3-70:11, 76:6-77:11; Olah ’ Aff. ¶¶ 4-5, at 2. In making the determination to eliminate the General Manager I position, Olah had to look to the structure and goals of the Land Office in determining where best to eliminate a filled FTE position. See MSJ ¶ 9, at 4 (setting forth this fact); Olah Depo. at 80:8-82:6. Olah made the determination to eliminate the General Manager I position in the Commercial Resources Division before March 30, 2011. See MSJ ¶ 10, at 4 (setting forth this fact); Olah Depo. at 82:7-82:25. In making this determination, Olah looked to the agency’s organizational structure and its strategic plan for the coming years. See MSJ ¶ 11, at 4 (setting forth this fact); Olah Depo. at 123:18—124:11. Olah’s decision recognized the Commercial Resources Division had two General Manager I positions, creating a redundancy; one position had numerous subordinates, the other had no subordinates, so Olah suggested that the two positions be combined so that management could be consolidated in a single General Manager I position. See MSJ ¶ 12, at 4 (setting forth this fact); MSJ (QI) ¶ 18, at 7; Olah Depo. at 137:7-139:11; Olah Aff. ¶4, at 2. Of the two General Manager I positions in consideration for elimination, Walton’s position was chosen, because she had less seniority with the agency than the individual serving in the other General Manager I position, per SPO Regulation that “the order of layoff due to reduction in force shall be by service date which is determined based upon the agency hire date.” MSJ ¶ 13, at 4 (setting forth this fact). See Olah Depo. at 124:25-125:12; Letter from Chris Melen-drez, Associate Counsel, New Mexico State Land Office, to Gina Anaya, Civil Rights Specialist, Department of Workforce Solutions—Labor Relations Bureau (dated May 14, 2012), filed November 6, 2013 (Doc. 38-4). At the time the RIF was designed, Olah had no knowledge of the Barker report. See MSJ ¶ 37, at 9 (setting forth this fact); Olah Depo. at 40:1-40-16. Additionally, Olah was not aware that Walton had reported to Britt that Bearden had engaged in alleged racially and sexually inappropriate behavior until after Walton’s position was eliminated and the RIF fulfilled. See MSJ ¶39, at 9 (setting forth this fact); MSJ (QI) ¶ 23, at 8; Olah Depo. at 67:5-67:18; Britt Depo. at 104:3-104:19; Olah Aff. ¶ 7, at 3. There was nothing in Walton’s personnel file that indicated that she was registered to vote as a Republican, that she supported the Republican Party, that she supported Lyons when he was election, that she engaged in any political activity, or that she held any political ideology. See MSJ (QI) ¶ 8, at 5; First López Aff. ¶ 4, at 2. In formulating the RIF, Olah did not know Walton was registered as a Republican, and Olah did not consider whether Walton supported the Republican Party, whether Walton supported Lyons during his election, whether Walton supported the Democratic Party, whether Walton supported the election of Powell, whether Walton engaged in any political activity, or whether Walton held any political ideologies. See MSJ (QI) ¶¶ 20, 21, at 7-8 (setting forth this fact); Olah Aff. ¶ 6, at 3. Olah was unaware of any complaints Walton may have made concerning her working conditions at the Land Office or concerning the manner in which the agency operated. See MSJ (QI) ¶24, at 8; Olah Aff. ¶ 7, at 3.

It was not Olah’s intention to eliminate Walton’s position or to terminate her employment; charged with eliminating two FTE positions, Olah was required to evaluate the Land Office’s organizational structure and to create a fully functioning organization. See MSJ ¶ 40, at 10 (setting forth this fact); Olah Depo. at 132:5-132:15; id. at 135:3-135:11. Olah did not, however, document any of her analysis and process in making the determination to eliminate Walton’s position. See Evidence in Opposition ¶ 9, at 2; Olah Depo. at 130:25-132:24.

Olah first presented her RIF design for approval in a meeting held on April 6, 2011, with Powell, Jenks, Relkin, a personnel representative, and outside counsel. See MSJ ¶ 14, at 5 (setting forth this fact); Olah Depo. 147:2-147:11 & 176:24-177:4; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah did not consult with Powell regarding her recommendations until after the RIF plan had been fully developed. See MSJ ¶ 32, at 8 (setting forth this fact); Olah Depo. at 127:19-128:17. At the April 6 meeting, Powell approved the plan to eliminate Walton’s General Manager I position. See MSJ ¶ 14, at 5 (setting forth this fact); Olah Depo. at 176:24-177:4; Powell Depo. at 131:22-133:8; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Britt did not know that Walton’s position was going to be eliminated until after the final determination had been made and approved by Powell, Jenks, and Relkin; Britt did not have any input or involvement with the RIF plan. See MSJ ¶ 30, at 8 (setting forth this fact); Olah Depo. at 142:4-144:14; Britt Depo. at 97:12-97:19; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). When Olah and Jenks informed Britt that the Commercial Resources Division would be losing Walton’s position, Olah was not aware that Walton had made a written complaint to Britt regarding Bearden. See MSJ ¶ 31, at 8

(setting forth this fact); Olah Depo. at 144:4-144:14. Walton’s General Manager I position was eliminated as a result of the RIF; the RIF’s criterion to eliminate two FTE positions was executed. See MSJ ¶ 41, at 10 (setting forth this fact); Olah Depo. at 173:11-177:4. Olah did not consider any alternatives to enacting the RIF, see Evidence in Opposition ¶ 40, at 8, Olah Depo. at 124:12-125:16; id. at 166:16-167:20, although, there were alternatives available that did not require eliminating Walton’s position. See Evidence in Opposition ¶ 40 at 8 (setting forth this fact); Olah Depo. at 76:24-77:15; Powell Depo. at 144:14-145:5; id. at 146:10-147:5; Reply in Response ¶ 40, at 7 (not disputing this fact). Additionally, the Commercial Resources Division of the Land Office now has more managerial positions than when Walton was employed there. See Evidence in Opposition ¶ 41, at 9 (setting forth this fact); Walton Aff. ¶ 36, at 14.

On June 10, 2011, Powell submitted the RIF plan to the State Personnel Office and received approval from the State Personnel Office on that same date. See Response ¶ 34, at 13 (setting forth this fact); Powell Depo. at 140:1-140:18; Defendants’ Response ¶ 34, at 9 (not disputing this fact). The State Personnel Office approved the RIF, and it was made effective June 30, 2011. See MSJ ¶ 15, at 5 (setting forth this fact); Walton Depo. at 135:24-137:21; Eyidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). On June 10, 2011, Walton was called into a meeting with Olah, Britt, and Lopez, and informed that her employment was being terminated effective June 30, 2011, because of a RIF. and that Walton would be on paid administrative leave immediately through June 30, 2011; Walton was directed to pack her personal belongings, turn in her keys, and leave the building immediately; before June 10, 2011, no one informed Walton that her position, could possibly be eliminated through a RIF. See Response ¶ 35, at 13 (setting forth this case); Walton Aff. ¶ 34, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). By an electronic mail transmission dated June 10, 2011, at 1:09 p.m., Powell informed the entire staff of the Land Office, statewide, that Walton’s employment had been terminated; the electronic mail transmission embarrassed and humiliated Walton. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). In Walton’s almost thirty years working in State government, she had never seen such an announcement of the termination of an employee’s employment. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). State Personnel Board Rule 1.7.10.9(C)(5), N.M. Admin. Code § 1.7.10.9, requires the Land Office to offer an employee affected by a RIF, such as Walton, a position in the agency that she is qualified for. See Evidence in Opposition ¶ 40, at 8; Plaintiffs Lopez Depo. at 133:16-142:15. At the time of the RIF there were at least two openings that Walton was qualified for and that the Land Office later filled with other people, however, Walton was not offered either of these positions in violation of State Personnel Board Rule 1.7.10.9(C)(5). See Evidence in Opposition ¶ 40, at 8-9; Walton’s Aff. ¶ 37, at 14.

PROCEDURAL BACKGROUND

On April 2, 2013, Walton filed her first amended Complaint in state court against the Land Office, Powell, Britt, and Bear-den, alleging sexual and racial discrimination in violation of the NMHRA, N.M. Stat. Ann. § 28-l-7(A); unlawful retaliation under the NMHRA, N.M. Stat. Ann. § 28-1-7(1); violation of the WPA, N.M. Stat. Ann. § 10-16C-1; and violation of her rights under the First and Fourteenth Amendments to the United States Constitution, including her rights to engage in political association without reprisal by state officials and right to speak on matters of public concern. See First Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights ¶¶ 22-39, at 5-8, filed April 11, 2013 (Doc. 1-1). The Defendants removed the case to federal court on April 11, 2013. See Notice of Removal ¶¶ 1-7, at 1-2, filed April 11, 2013 (Doc. 1). Walton amended her first amended complaint on August 1, 2013, adding additional claims for discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). See Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights ¶¶ 28-33, at 6-7, filed August 1, 2013 (Doc. 20)(“Com-plaint”).

On November 6, 2013, the Defendants moved for summary judgment on all of Walton’s claims. See MSJ at 10-25. On November 27, 2013, the Defendants moved for summary judgment on Walton’s political affiliation and speech claims on the basis of qualified immunity. See MSJ (QI) at 8-20. Walton responded to the MSJ on December 19, 2013, and dropped her NMHRA and Title VII discrimination claims, her constitutional claims against Britt and Bearden, as well as her First Amendment speech claims. See Response at 1 n. 1.

The Court will address the procedural background in three parts. First the Court will discuss the procedural background for the MSJ. The Court will next discuss the procedural background for the MSJ (QI). The Court will last look at the. hearing the Court held on April 9 and 10, 2014.

1. The MSJ, Response, and Reply.

In the MSJ, the Defendants argue that Walton has not produced sufficient evidence to establish a claim for retaliation under the NMHRA or Title VII of the Civil Rights Act of 1964. See MSJ at 15. The Defendants note that Walton’s retaliation claims must be examined under the burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (“McDonnell Douglas ”). See MSJ at 15. The Defendants argue that, to establish a prima facie case of retaliation under Title VII, Walton must demonstrate that “(1) she engaged in protected opposition to discrimination, (2) she was subject to an action that a reasonable employee would have found to be materially adverse, and (3) a causal connection exists between the protected activity and the materially adverse action.” MSJ at 15-16 (citing Webb v. Padilla, No. 08-0411 MV/LAM, 2009 WL 3379034 (D.N.M. Sep. 30, 2009) (Vazquez, C.J.)). The Defendants assert that under the NMHRA, to establish a prima facie case, Walton must show that “she was discharged because she performed an act that public policy authorizes or encourages.” MSJ at 16 (citing Chavez v. Manville Prod. Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (1989)). The Defendants maintain that if Walton can establish a prima facie case, then under the McDonnell Douglas analysis, the Defendants are still entitled to summary judgment if they can demonstrate that there was a nondiscriminatory reason for the RIF of Walton’s General Manager I position. See MSJ at 16 (citing Moongate Water Co. v. State, 120 N.M. 399, 902 P.2d 554 (Ct.App.1995)).

The Defendants concede that “the RIF was an adverse employment action,” but they argue that Walton cannot establish a prima facie case, because she cannot meet the other two elements. MSJ at 16. The Defendants argue that Walton did not engage in protected opposition to discrimination, because Walton’s “protected opposition ... must be to an ‘unlawful employment practice [under] [Title VII],”’ and Bearden’s complained of behavior does not rise to a level that violates Title VIL MSJ at 16-17 (quoting Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir.2002) (alterations in the MSJ but not in original) (“Petersen ”)). The first element requires Walton to “have a reasonable, good faith belief that she was opposing discrimination,” and a “good faith belief involves both subjective and objective elements.” MSJ at 17 (citing Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163, 1171 (10th Cir.2003)). This element means Walton must show that she “was targeted because of her gender, national origin or some other protected class,” MSJ at 17 (citing Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327 (10th Cir.2004)), which Walton cannot do because of a lack of evidence, see MSJ at 17. The Defendants also argue that Walton cannot establish the third element—a causal connection. MSJ at 17. The Defendants argue that Walton “ ‘must show that the individual who took adverse action against [her] knew of the employee’s protected activity.’ ” MSJ at 18 (quoting Williams v. Rice, 983 F.2d 177, 181 (10th Cir.1993)) (alterations in the MSJ but not in original). Olah identified Walton’s position for the RIF before March 30, 2011, but Walton did not formally report Bearden’s conduct to Britt until April 29, 2011. See MSJ at 17. Furthermore, there is no evidence that Olah had any knowledge of Bearden’s alleged discriminatory conduct. See MSJ at 18. Therefore, the Defendants argue, because “there is no evidence Elaine Olah had knowledge of any protected activity on the part of Ms. Walton, there can be no causal connection between any protected activity and Plaintiffs adverse action.” MSJ at 18.

As to Walton’s WPA claim, the Defendants make similar arguments. See MSJ at 18-19. The Defendants argue that, in “understanding the [WFA], it is important to look to the federal Whistleblower Protection Act, 5 U.S.C. § 2302 ... and decisions interpreting it, ... because the federal and New Mexico acts are materially similar.” MSJ at 18. The Defendants maintain that under the federal Whistle-blower Protection Act, “[disclosures which do not demonstrate clear violations of law, gross mismanagement and abuse of authority, or other wrongful conduct, are not protected as whistleblowing.” MSJ at 19 (citing Kavanagh v. Merit Sys. Prot. Bd., 176 Fed.Appx. 133, 135 (Fed.Cir.2006)). The Defendants argue that Walton has not established a protected disclosure, because “[h]er complaints about Ms. Bearden’s inappropriate remarks, sabotaging of work, etc. simply do not rise to the level of ‘unlawful or improper acts’ necessary to come with the [WPA’s] protection.” MSJ at 19. The Defendants further argue that Walton’s “WPA claim fails because she cannot establish the causal connection element of a prima facie case.” MSJ at 20 (emphasis omitted). A “successful WPA claim requires [Walton] to establish that the adverse employment action was taken by the SLO because of the alleged protected disclosure.” MSJ at 19 (citing DeSan-tis v. Napolitano, 716 F.Supp.2d 1100, 1107 (D.N.M.2010) (Browning, J.)). Because “[t]here is no evidence that Ms. Olah, who designed the RIF, had any knowledge of the alleged protected disclosures of [Walton],” Walton has failed to show that she was terminated because of her protected disclosures. MSJ at 20.

Regarding Walton’s political affiliation claim, the Defendants argue that “there is no evidence that Ms. Olah, again the only person responsible for the design of the RIF of [Walton’s] position, intended to discriminate on the basis of political affiliation”; there is no “genuine dispute that political affiliation and/or beliefs .were a ‘substantial or motivating factor’ in the RIF.” MSJ at 22. The Defendants argue that Walton “has no evidence she was discriminated against because she was Republican,” but instead Walton “only alleges she was mistreated because of her association with a prior administration.” MSJ at 22-23. The Defendants refer the Court to Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir.1999) {“Jantzen”). According to the Defendants, in Jantzen, a county sheriff warned his subordinates during a meeting that anyone who ran against him in an election, openly opposed him, or was disloyal to him, would be fired, and when the plaintiff announced he would run against the sheriff in the election, he was immediately fired. See MSJ at 23. The court granted summary judgment to the defendant sheriff based on those facts, because the plaintiff had failed to put forth any evidence that “he was terminated for ‘supporting or affiliating with a particular political party.’ ” MSJ at 23 (quoting Jant-zen, 188 F.3d at 1252). The Defendants also direct the Court to Nelms v. Modisett, 153 F.3d 815 (7th Cir.1998) {“Nelms”). See MSJ at 23. In Nelms, an investigator in the Indiana Attorney General’s Office, who worked under a Republican administration, had his position restricted and eliminated under- a Democrat administration, and when the investigator inquired about the termination, he was told “you understand the political realities.” MSJ at 23 (quoting Nelms, 153 F.3d at 817). There, the United States Court of Appeals for the Seventh Circuit, in affirming the district court’s grant of summary judgment for the defendant, held that there was no evidence that “the protected political association was a substantial factor in the decision to terminate him,” and that a “ ‘disgruntled employee fired for legitimate reasons would not be able to satisfy the burden merely by showing that he carried the political card of the opposition party or that he favored the defendant’s opponent in the election.” MSJ at 123-24 (quoting Nelms, 153 F.3d at 818). The Defendants argue that Walton’s claim of discrimination based on political affiliation is directed at Britt, Powell, and Bearden; however, there “is no evidence any of these individuals had any involvement with the RIF, which was within the sole determination of Ms. Olah.” MSJ at 24. The Defendants further argue that Walton’s “claims are based only upon untethered speculation,” and that her “allegations and testimony ... fall short of any objective or direct evidence her position was targeted for the RIF on the basis of her Republican affiliation.” MSJ at 24. The Defendants argue in the alternative, that, “even assuming Plaintiff establishes a prima facie case, the Defendants clearly demonstrate a legitimate, non-political reason for the elimination of Ms. Walton’s position.” MSJ at 24. The Defendants again refer the Court to Nelms, wl)ich involved an organizational restructuring, and an employer having to choose between the plaintiff and an employee, who had been with the employer ten years longer than the plaintiff, to show that Walton “cannot rebut Defendants’ assertion that the RIF was a legitimate, nonpolitical reason for the elimination of Plaintiffs job,” because “[virtually the same principal facts exist in the present case” as Nelms, where the court “found no evidence rebutting defendant’s assertion that the re-organization was a legitimate reason to terminate the plaintiff.” MSJ at 24-25.

In response to the MSJ, Walton first argues that she has produced sufficient evidence to establish a prima facie case of retaliation. See Response at 17. Walton argues that it is undisputed that she “engaged in a protected activity when she submitted written complaints about Ms. Bearden’s conduct to her supervisor, Mr. Britt, on April 7 and 8, and on May 5, 2011,” and that it is undisputed that the Land Office “took an adverse employment action shortly after Walton engaged in that protected conduct.” Response at 17-18. Walton argues that the “proximity of the protected activity and the submission of the RIF plan to the State Personnel Office alone is sufficient to establish a prima facie case of retaliatory motive.” Response at 18. Walton further argues that there is sufficient evidence to show that the RIF criteria was manipulated to terminate her position and that the RIF was “generally pretextual,” including “that the SLO did not consider any options to Walton’s termination, that other options were available, that other divisions in the SLO had an organizational structure similar to the structure of the Commercial Resources Division, and that the SLO failed to offer Walton a right of first refusal for other positions in the SLO.” Response at 18. Walton