The city’s dark underbelly of nepotism, sexist workplace practices, retaliation against a whistleblower and more are detailed in Erica Baker’s suit against the city.
It’s also a study in contrast between the sheriff’s office, headed by an elected official accountable to the people for upholding the law, and the city police department, ruled by a city manager, who in turn is beholden to city commissioners for his job, mired in personality-over-principal interference.
The city’s answer to Baker’s law suit hasn’t dropped yet, but the basic plot-line is Baker was fired for daring to hold, or at least trying to get the city to hold then-Mayor Sandra Whitehead’s son-in-law, Michael Lanford, accountable for defrauding the state employee retirement fund, for not being certified yet acting as a law enforcement officer and for perjuring himself every time he signed affidavits and executed search warrants. According to her job title, Baker was Lanford’s supervisor and this was her job.
The lawsuit will likely effect the sheriff’s election, which is less than 70 days away. Lanford and Baker’s husband, Joshua Baker, a lieutenant with the sheriff’s department who was assigned to the investigation into Lanford, are both running for sheriff.
It appears the city has no proof, only Lanford’s accusations that Baker yelled at him, threatened to fire him and created a hostile work environment.
Erica Baker, previously Truth or Consequences deputy chief of police, appears to be on solid ground, filing a federal suit on Aug. 2 against the city and also naming City Manager Bruce Swingle as a defendant. As you will see, given the Seventh Judicial District’s involvement, it is wise she filed the suit in federal court. The filing is attached below.
The city asked for an extension to the Aug. 26 answer deadline, according to Baker’s lawyers, which was unopposed, making the new deadline Sept. 16.
If Baker wins her case against the city, the people may have to pay a pretty penny for the ruination of her career. She’s asking for compensatory and punitive damages, future lost wages, double back pay, reinstatement and to be made whole as far as her retirement benefits are concerned.
Swingle fired Deputy Chief of Police Erica Baker on July 19, 2021. About a month earlier he had fired Michael Lanford, June 25, 2021, because he failed to be recertified, although he had a year to do so, from the time he was hired by the city in March 2020 to March 2021.
Swingle fired Baker for going on a “witch hunt” against Lanford, claiming she colluded with the Sierra County Sheriff’s Office to bring him down, appearing to believe Lanford over refuting testimony.
Swingle hired an outside attorney to investigate Lanford’s two complaints against Baker, the first claiming she created a hostile work environment by yelling and threatening to fire him, the second claiming Baker also created a hostile work environment through “sexual harassment.” Sexual harassment did not figure in Swingle’s termination letter to Baker.
The investigator did everything she could to put Lanford in a favorable light. She interviewed Lanford’s wife and officers who weren’t present during Baker’s supposed yelling and threat, but who trashed Baker and praised Lanford. Incredibly, she dared to not interview Baker’s superior, then-Chief of Police Michael Apodaca, who was present, and could verify or deny Lanford’s claims. Apodaca refuted Lanford’s accusations against Baker.
Despite putting blinders on, the investigator didn’t recommend firing Baker. She said hostile work environment had not been proven. She also said part of the problem between Lanford and Baker could be attributed to Apodaca allowing him to skip Baker as his superior in the chain of command. Lanford was allowed to report directly to Apodaca.
Swingle fired Baker despite the investigation report. Why?
Lanford is Sandra Whitehead’s son-in-law and she was mayor at the time, Baker’s filing points out, implying Swingle was coerced. Swingle is employed at will by the city commission and he was two months into his job when he fired Baker on July 7, 2021.
Swingle was contacted for comment and responded he could not speak about ongoing litigation.
Whitehead did not respond to a request for comment within a week, nor did Lanford.
Baker referred me to her attorneys, who answered my general questions.
Baker timely filed an appeal to Swingle’s firing and a professional hearings officer heard evidentiary testimony on Sept. 23, 2021. He filed his report and recommendations on Oct. 24, 2021.
The hearings officer concluded Baker had not been given sufficient due process. She wasn’t given notice she was being investigated or told what the charges were against her.
In the “Loudermill” hearing, part of the due process required before impacting a public employee’s property right, such as her salary, Swingle was supposed to present his case against her. Instead, Baker was forced to blindly defend herself based on Lanford’s complaints, which she was allowed to read.
The hearings officer noted the incompleteness of the investigation—Apodaca’s absence in particular.
During the evidentiary hearing, Apodaca refuted Lanford’s claims Baker demeaned and threatened him. Not then, and not ever, Apodaca said, had Baker used her rank inappropriately, taking exception to the claim he would allow insubordination or bullying by a superior.
Sheriff Glenn Hamilton also testified at Baker’s evidentiary appeal hearing. He refuted Lanford’s and Swingle’s claims that Baker had anything to do with the sheriff’s investigation.
The hearings officer applied the “abuse of discretion standard” in evaluating Baker’s alleged wrongdoing. He said the evidence did “not rise to the level of ‘substantial proof of guilt,’” necessary to prove Baker had violated the city’s general code of conduct and personnel policies, the standard for warranting termination.
He recommended Baker’s reinstatement, but Swingle affirmed Baker’s firing instead.
Baker has asked for a jury trial and Swingle will likely be called to testify. It will be interesting to see if Swingle continues to take sole responsibility for firing Baker. As a defendant, he could be financially vulnerable, although some clause in his contract likely protects him. If not, sharing culpability with Whitehead, if she pressured him, could be strategic.
According to Sheriff Hamilton, previous City Manager Morris Madrid is willing to testify. Was he pressured by Whitehead to hire Lanford in the first place?
Sheriff Hamilton’s recent interview with the Citizen throws light on Lanford’s hiring and illegalities.
Sierra County Sheriff’s Office investigation into Lanford
Shortly after Chief of Police Michael Apodaca hired Lanford in March 2020, he informed Hamilton of the fact. Lanford retired as a city police officer in 2013. Apodaca told Hamilton he brought him back because the force was lacking officers with experience in drug investigations.
“I was all for getting more help with investigating area drug cases,” Hamilton said.
Hamilton thought no more about it until a constituent called to complain about his daughter’s treatment at the hands of Seventh Judicial District Investigator R. D. Hayes and Lanford in June 2020. The constituent claimed they threatened his daughter with arrest if she didn’t reveal information about her boyfriend. The constituent asked Hamilton what jurisdiction a city police officer had in the county.
Hamilton started an investigation. He made an Inspection-of-Public-Records-Act request to the city for Lanford’s hiring documents.
Someone at the city leaked the IPRA to Lanford, who called him and asked him about his interest, Hamilton said.
The documents showed Lanford was a contractor, hired for three months at a time, for $20,000, to “train” officers in investigation. His March-April-May contract had been renewed for June-July-August.
Breaking up the contract into $20,000 increments instead of hiring him at $80,000 a year circumvented procurement code that requires contracts over a certain amount go out to bid. Awarding the bid also would have come before the city commission. “Even at $20,000,” Hamilton said, “the contract should have come before the city commission because Lanford is Sandra Whitehead’s son-in-law.”
The state Government Conduct Act requires that city officials avoid the appearance of conflict of interest.
Since the city did not put the contract to train officers in drug investigations out to bid and did not put Lanford’s contract before the city commission, Whitehead cannot clear herself of nepotism accusations. She could have recused herself publically from approving his contract. Instead, Baker’s arguments insinuating nepotism in his hiring and in other instances have merit.
Hamilton asked Lanford if he had submitted his three-month contract to PERA (Public Employee Retirement Association) for approval before taking the job, as required by state administrative code. The contract review is a step meant to prevent violation of state law prohibiting “double dipping,” collecting retirement and working in the same capacity previous to retirement. Lanford confessed he had not submitted his contracts for PERA approval, Hamilton said.
Hamilton also learned Lanford was doing a lot more than training city officers. District Attorney Clint Wellborn issued Lanford a commission to work with a county investigator for the Seventh Judicial District the same month he was hired by the city. Wellborn’s commission was illegal, because Lanford was not a full-time city law enforcement officer.
“He was signing affidavits and serving search warrants!” Hamilton said, perjuring himself every time he signed the documents that attested he was a full-time law enforcement officer of the T or C Police Department.
Hamilton took exception to Swingle asserting his motivation for investigating Lanford was political or personal. “Why? I won,” Hamilton said. Lanford ran against Hamilton in 2014 and lost. Hamilton won a second four-year term in 2018, but Lanford did not run that year. Hamilton, after serving nearly eight years, will have termed-out by January 2023.
It is unlikely Hamilton or Erica Baker started investigating Lanford in June and July of 2020 to ruin Lanford’s chances of becoming sheriff if he chose to run in 2022.
But there is bound to be a political effect to Baker’s court case becoming public about 70 days before the November election. The city of T or C City Commission put the case on its Aug. 24 agenda under executive session, the first public announcement. The Sierra County Citizen learned of Baker’s Aug. 2 filing a few days before from an anonymous tipster.
Accused of going on a witch hunt against Lanford, Hamilton said, to the contrary, he was measured. He gave warning and opportunity to Lanford, the city and Wellborn’s Seventh Judicial District to correct Lanford’s illegalities.
“If it had been anybody else, I would have arrested them for impersonating an officer,” Hamilton said.
Besides meeting with Lanford at his request in July 2020, Hamilton sought a meeting with District Attorney Wellborn the same month. “I told him Lanford’s commission he had issued wasn’t worth the paper it was printed on.” Hamilton also informed Wellborn of Lanford’s double-dipping infraction.
Several months later, Wellborn was forced to drop court cases around April 2021—at least three, including a child-abuse case—Hamilton said. Defending attorneys, not Wellborn, pointed out Lanford’s lack of authority and Wellborn had no choice but to drop the cases.
The Sierra County Citizen called Wellborn to request he confirm or deny if cases were dropped, and if so, how many, but did not receive a response within a week.
Hamilton contacted the Attorney General’s Office, which investigated and enforced the double-dipping law. Lanford must pay back six months of retirement benefits. Impersonating an officer was not pursued.
The city finally corrected Lanford’s contract status by hiring him as a full-time peace officer September 2020, three months after it learned—from Hamilton—that such was necessary for Lanford to act as a police officer. It does not appear, from Baker’s filing or Hamilton’s interview, that the city did anything about Lanford’s PERA or double-dipping violations.
Retaliation and sexism
Lanford was the one proven to be in violation of the law, thus making the city vulnerable to liability, yet Baker came under scrutiny for reporting it to superiors, violating her status as a whistleblower, her filing claims.
Baker waited until she was acting chief of police and Lanford’s one-year certification grace period had expired before reporting it as a problem to then-Acting City Manager Traci Alvarez, March 2021.
Lanford’s first complaint followed shortly afterward, March 15, making it likely Alvarez apprised Lanford of Baker’s report.
When Alvarez did nothing, Baker went to City Attorney Jay Rubin, who, according to Baker’s filing, “agreed Lanford should have been certified by March 2021.”
The city put Lanford on paid administrative leave April 22, 2021 and his second complaint against Baker was filed April 23, 2021.
Sexism
Baker’s filing points out male police officers are held to a different standard than female officers, describing several officers’ severe infractions not resulting in firing.
Baker, in contrast, held a near blemishless record for 10 years, with promotions from officer to sergeant to lieutenant to deputy chief of police to acting chief of police—until Lanford filed his complaints—and then she was fired for his unproven claims.
Lanford was twice allowed not to report to his superior female officer, a captain, now retired, as well as Baker.
The paucity of T or C Police Department female officers is also noted in Baker’s suit.
Seems as though Glenn Hamilton deserves a round of thanks for following the law and procedures throughout WITH THE EXCEPTION of not arresting Landford for impersonating a law enforcement officer and many other for conspiracy by aiding, abetting and facilitating a breach of the law and defrauding the various jurisdictions! Why the pass on those alleged or apparent violations?
factual, truly Award worthy reporting and writing Ms. Sloan.
I personally don’t care for Erika Baker,I heard she quit ,when Aragon was chief,and then when he was fired,she was hired back in by Mayor Whitehead,also it’s very Suspicious Baker climbs up in rank very fast ,and Note it’s the not the first time she claimed Sexual Harassment Suit,try Lovington,NM ..Normally when you file against the police station you work for you can’t climb up in rank like Baker has,and Every time she says Sexual Harassment lawsuit ,I would be checking her mental stability,also I would be checking another simple fact,an Officer is to wear their uniform not be in a t shirt in the office ,for her to state sexual harassment,
https://casetext.com/case/baker-v-lovington-police-department/
https://casetext.com/case/baker-v-lovington-police-department/case-details
so according to baker’s statement :Baker, in contrast, held a near blemishless record for 10 years, with promotions from officer to sergeant to lieutenant to deputy chief of police to acting chief of police—until Lanford filed his complaints—and then she was fired for his unproven claims.
Umm according to Lovington,NM that’s the first time she stated sexual harassment
and did anyone check her mental stability,when she decided to rank up?
and what of baker’s violations?
I didn’t see a decision in the reference provided. Was it for or against Baker?
And her current lawsuit has NOTHING to do with sexual harassment, does it?
The case has not gone to trial yet, therefore there is no decision yet. Baker was accused of sexual harassment, but City Manager Bruce Swingle did not make that part of the reason for firing her.
My brain is doing flip flops with these revelations. My impression of Sheriff Hamilton was of a guy who had excoriated a retired friend of mine (who had admittedly excoriated him first because of his (IMO) crazy and misguided deputization of members of our local evangelist church) calling her a “communist” , among other things, in response.
Now he’s defending a woman who appears to have severely wronged by our local city officials. I don’t know what to think, a condition becoming increasingly common with me as the years go by ;-)!!
I was pretty sure the current case hasn’t gone to trial. I was wondering about the disposition of the earlier, 2011 case mentioned in the comment.
First, I ask you what are the three pillars of journalism? Let me tell you, “Truth, Accuracy and Objectivity”. As I read this article, I do not see these being represented. I only see a one sided and/or here say article that does not give any information other than Erica Baker’s statements in her lawsuit. If that was your only source, that should have been made clear at the beginning of the article, again truth, who knows. I am sure we all know how a lawsuit works, the plaintiff must prove their accusations, and it is up to a judge/jury to determine if the accusations are justified. As I read this article, I do not see where you refer to accusations, it reads as if you are the judge/jury and have convicted Lanford on all activity. All I see is you attacking a man’s character based on unverified statements. Again, truth, accuracy and objectivity not followed. You stated, “Whitehead did not respond to a request to comment within a week, nor did Lanford”. Can you honestly say you attempted to contact Lanford, NO you cannot. When confronted on this, you stated you tried to contact his wife, why not him personally, not very professional. But after rereading your articles, that is how you operate. You are quick to print statements from one side and not give the accused the same opportunity. Does that represent truth, accuracy, or objectivity? No
You also reference Sheriff Hamilton several times in this article. You stated that Hamilton had investigated Lanford’s alleged illegal activity. The day after you released your article, Lanford and another individual went to the Sierra County Sheriff’s office to obtain the report of the so-called illegal activity. The Lady at front desk was quick to get Hamilton, once the request was made again to Hamilton himself, he commented “There is no report”. Does this seem odd to you, if there is supposably illegal activity in our community, isn’t it his job to enforce the law, or at least have documentation to support his statements. Isn’t it policy that a report is to be made on all investigations? So again, false reporting, there was not an investigation done on Lanford nor is there a report of it per Sheriff Hamilton himself on Aug 30, 2022. Let me remind you again, truth, accuracy, and objectivity, once again not followed.
I have known Michael Lanford for 25 plus years and I have to say, he is the most honest, fair, levelheaded, trustworthy man I have had the pleasure of knowing. He has demonstrated time and again during his law enforcement career his ability to protect and serve our community. Lanford would make an honest, law-abiding Sheriff for our county. As you also reference that in your article” lawsuit will likely affect the sheriff’s election”, is this a political stunt or as I have read numerous times in your article, a witch-hunt. Now you are making assumptions based on what? Ms. Sloan, you have written an article that is a one-sided perception of the events, if you had any moral values, you would have never printed this without given Lanford the opportunity to respond. I find it odd that you successfully contacted people that would support Erica Baker’s statements. Again, let me remind you, you are not the judge or jury. Citizens of Sierra County, don’t take my word, go out and investigate the statements made by Ms. Sloan, you will find a whole different version exist. Once again truth, accuracy, and objectivity, not standards for this reporter.
you might have known him for 25 years, but are you actually around this person? in our community at all? you would know if any thing does or doesn’t get turned it.do you think they will produce a copy of it? that is how it basically works out here, if its against an Officer, do think they will have it on file..Umm No..and honestly just because you know Landlord…Doesn’t not mean you have been around him in the 25 years also..so some of your statements you should retract
In your remarks :
if there is supposedly illegal activity in our community, isn’t it his job to enforce the law, or at least have documentation to support his statements. Isn’t it policy that a report is to be made on all investigations? So again, false reporting, there was not an investigation done on Lanford nor is there a report of it per Sheriff Hamilton himself on Aug 30, 2022. Let me remind you again, truth, accuracy, and objectivity, once again not followed.
This is what gets me..if there’s an Issue with a cop and you do turn something in,My question is where is it?? They have done it to me..How Many IPRA have i turned in to get said Report..over several Years ,starting of 2017 and last one in 2021 because it was against an officer..
also do you even live in this county? besides hearing from someone you think is so great ,why hasn’t he even commented stated anything? not one word..keep going strong on elections say nothing right?
There is a court case coming up that should answer many of these questions. I don’t believe the fact that Lanford was let go and hadn’t obtained current certification, resulting in the loss of several cases, is in doubt. Or if it is you haven’t disputed those facts here. You must realize Ms. Sloan will print any future responses by those you claim were not asked or given time to respond. Lanford may be being treated unfairly, but if so evidence of this is not in your comments.
Baker
v.
Lovington Police Department
United States District Court, D. New MexicoAug 29, 2011No. CIV 10-0717 JB/GBW (D.N.M. Aug. 29, 2011)
No. CIV 10-0717 JB/GBW.
August 29, 2011
Karen S. Mendenhall, Eaves Mendenhall, P.A., Albuquerque, New Mexico, Attorneys for the Plaintiff.
Stephen G. French, Robyn Hoffman, French Associates, P.C., Albuquerque, New Mexico, Attorneys for the Defendants.
MEMORANDUM OPINION AND ORDER
JAMES BROWNING, District Judge
THIS MATTER comes before the Court on the Defendants’ Motion for Extension of Time to File Dispositive Motion and for New Scheduling Conference, filed May 27, 2011 (Doc. 84) (“Motion”). The Court held a hearing on July 6, 2011. The primary issue is whether the Court should extend the deadline for the filing of dispositive motions from May 31, 2011 until June 21, 2011, and set a new scheduling conference. Because the Defendants have shown good cause for the extension, the Court will grant the Defendants’ Motion.
PROCEDURAL BACKGROUND
The Court initially set this matter for trial at the end of July, 2011. See Scheduling Order, filed November 3, 2010 (Doc. 10). After the parties requested a limited extension of discovery, see Joint Motion for One Month Extension of Time for Discovery Close and for New Scheduling Conference, filed March 3, 2011 (Doc. 48), the Court issued a minute order setting trial for the end of August, see Minute Order, filed March 26, 2011 (Doc. 65). The deadline for the Defendants to file their dispositive motion was May 31, 2011.
Plaintiff Erica Baker’s counsel advised that she would be taking the deposition of Curtis Rodgers, formerly a sergeant with Defendant Lovington, New Mexico Police Department. Rodgers resigned, however, from the Lovington Police Department in March 2011, and became employed in Ruidoso, New Mexico. Baker’s counsel then advised that she would not take Rodger’s deposition, but that she would contact him to have him give his deposition in Albuquerque, New Mexico to be taken by the Defendants’ counsel. After initially agreeing to travel to Albuquerque, Rodgers apparently changed his mind, as Baker’s counsel advised that his deposition must occur in Ruidoso.
The Defendants took the deposition of Baker’s husband, Joshua Baker, on March 28, 2011, and Baker’s deposition on March 30, 2011. After completing Baker’s deposition, the Defendants’ counsel advised that they had sufficient information to draft their motion for summary judgment. The Defendants’ counsel thus said they were ready to draft their dispositive motion the beginning of April, 2011.
After Baker’s deposition was completed, Baker’s counsel began making arrangements to depose in Lovington six of the witnesses that the Defendants have disclosed. The Defendants’ counsel asked if Baker’s counsel would agree to a stay of the Lovington depositions until the Court decided the Defendants’ motion for summary judgment. Baker’s counsel responded that she would not agree to stay the litigation, because doing so would prejudice her, but that nothing prevented the Defendants’ counsel from preparing and filing the Defendants’ motion for summary judgment. The Defendants did not file their motion for summary judgment at that time.
The depositions went forward in Lovington. From April 26, 2011 through April 29, 2011, the parties were in Lovington for the depositions of six of the Defendants’ employees that Baker’s counsel took. The deponents are employees of either the City of Lovington or the Lovington Police Department. The Defendants have control over their witnesses. The Defendants’ counsel had previously met with and interviewed these witnesses.
Defendants’ counsel, Robyn Hoffman, and her husband have suffered from serious physical illness. The health issues at issue did not arise until almost May, 2011. On Saturday, April 30, 2011, Ms. Hoffman’s husband was taken to the emergency room at Presbyterian Hospital in Albuquerque for a near-fatal illness. For the week of May 2, 2011 through May 6, 2011, Ms. Hoffman was unable to attend to the normal legal business in her office because of her husband’s hospitalization. On May 8, 2011, Ms. Hoffman obtained medical care from the urgent care facility in Albuquerque for her own medical condition, which was treated from May 9, 2011, through May 18, 2011.
Because of the serious medical condition of Ms. Hoffman’s husband, and because of Ms. Hoffman’s illness, the deposition of Baker’s witness, Curtis Rodgers, which had been planned to occur during the two-week period of May 2, 2011 through May 13, 2011, did not take place. Ms. Hoffman is not a sole practitioner, and her associate, Steve French, is actively involved in this case.
The parties attended a mediation before the Honorable Gregory B. Wormuth, United States Magistrate Judge, on May 24, 2011. The matter was not resolved in the mediation.
On May 25, 2011, before filing this Motion, the Defendants contacted Baker’s counsel. The Defendants’ counsel requested that Baker agree to a three-week extension for dispositive motions and agree to move all other deadlines back sixty days. Baker did not agree to the Defendants’ request, and on May 27, 2011, Baker’s counsel advised that she opposes this motion.
The Defendants move the Court for an order extending the deadline for the filing of dispositive motions. The Defendants’ counsel represents that they require additional time to prepare the summary judgment motion and to obtain affidavits from numerous employees of the Defendants. The Defendants represent that their employees have been difficult to contact because of their different days off, shift times, and vacation leaves. Moreover, because this requested extension would extend the briefing time beyond the motions hearing currently scheduled for July 6, 2011, the Defendants request a new scheduling conference.
On June 1, 2011, Baker filed the Plaintiff’s Response in Opposition to Defendants’ Motion for Extension of Time to File Dispositive Motion and for New Scheduling Conference. See Doc. 86 (“Response”). Baker opposes the Defendants’ request for an extension of time from the May 31, 2011 deadline until June 21, 2011 for the Defendants to file a motion for summary judgment. Baker contends that there is no reason why the Defendants’ counsel could not have drafted a dispositive motion immediately after completing Baker’s deposition, when, Baker contends, Defendants’ counsel was prepared to draft a dispositive motion. Baker further asserts that, because the Defendants had access to the deponents of the Lovington depositions, there was no need for them to await the completion of the depositions before drafting a motion for summary judgment. She argues that, “[b]ecause Defendants had control over their witnesses, there is no reason why their counsel could not have obtained affidavits from them anytime.” Response at 2. Baker further asserts that, while she is sympathetic to the health problems of Ms. Hoffman and her husband, Ms. Hoffman is not a sole practitioner, and others in her office could have completed a summary judgment motion in her absence. Baker asserts that she is “entitled to have her case resolved timely” and that continuing the trial setting would unduly prejudice her. Response at 3.
On June 15, 2011, the Defendants filed their Reply to Plaintiff’s Response in Opposition to Defendants’ Motion for Extension of Time to File Dispositive Motion and for New Scheduling Conference. See Doc. 89 (“Reply”). The Defendants contend that they cannot complete a motion for summary judgment until depositions conclude. They further contend that an extension of time will not unduly prejudice Baker. The Defendants also assert that fairness requires an extension of time for them to file a dispositive motion. Ms. Hoffman asserts that, while there are other attorneys at her office, the motion for summary judgment was her task, and it would take other attorneys time to get up to speed.
ANALYSIS
Baker posits two grounds for her opposition to the Defendants’ request for an extension of time. First, Baker contends that the Defendants’ counsel should have written the motion for summary judgment before the completion of Baker’s six depositions which occurred in Lovington from April 26, 2011, to April 29, 2011. Second, Baker contends that the extension will unduly prejudice her. Neither of these grounds provide a sound basis for denying the extension. For the reasons stated on the record at the hearing, the Court will grant the Defendants’ Motion.
I. THE COURT SHOULD NOT REQUIRE THE DEFENDANTS TO COMPLETE A MOTION FOR SUMMARY JUDGMENT UNTIL THE CONCLUSION OF DEPOSITIONS .
Baker argues that, because Ms. Hoffman gave Baker’s counsel the option of staying discovery until the Court decided a motion for summary judgment, the Defendants could have prepared a motion for summary judgment in advance of Baker’s seven depositions of the Defendants’ witnesses. Baker contends that there is no reason why the Defendants’ counsel could not have drafted their dispositive motion immediately after completing Baker’s deposition. She argues that the Defendants’ counsel was prepared at that time to draft a dispositive motion. Baker contends that, because the Defendants had control over their witnesses, there is no reason why their counsel could not have obtained affidavits from them anytime. Baker maintains that it was not necessary to wait for their depositions.
It is not reasonable or customary to require the Defendants to prepare a summary judgment motion before witnesses have committed their testimony under oath. The Defendants concede that they had control over the Lovington deponents and could have secured affidavits, but they do not control what the deponents will say in their depositions. Moreover, at the time the parties submitted briefs on this matter, Baker had “not yet provided her sworn notarized verification of her Answers to Interrogatories,” despite the Defendants’ repeated requests. Reply at 2. The lack of sworn testimony from Baker might have made it difficult for the Defendants to put together a complete motion. As the Defendants assert, “it is not reasonable for Plaintiff to require Defendants to strictly comply with deadlines when Plaintiff ignores them to the detriment of Defendants.” Reply at 3.
II. AN EXTENSION WILL NOT UNDULY PREJUDICE BAKER .
Baker is entitled to have her case resolved timely. Trial has already been put back from the end of July to the end of August. Baker states that the Defendants would have the trial put back another sixty days to the end of October, 2011. The Court agrees that a delay of sixty days could unduly prejudice Baker. On the other hand, forcing the Defendants to trial without affording them an opportunity to test the merits of Baker’s claims through a summary judgment motion could also prejudice them. The Court recently completed a trial in which the defendants did not file a pretial motion for summary judgment, and it was a difficult trial to try, because many of the legal and factual issues had not been sorted out and the case issued remained at trial. It almost punishes the Court more than anyone to have to try a case when the issues have not been sifted before trial.
At the hearing, the Court and the parties agreed to schedule the trial on the Court’s trailing docket on September 12, 2011. The Court believes that a two week delay reasonably balances the Baker’s right to have her action timely resolved against the need to accommodate Ms. Hoffman’s personal hardships and afford the Defendants an opportunity to test the merits of Baker’s claims. This relatively short extension will not unduly prejudice Baker. IT IS ORDERED Defendants’ Motion for Extension of Time to File Dispositive Motion and for New Scheduling Conference, filed May 27, 2011 (Doc. 84), is granted. The dispositive motion hearing is now set on August 23, 2011. A pretrial order is due from the Plaintiff Erica Baker to the Defendants no later than August 26, 2011, and from the Defendants to the Court no later than September 1, 2011. The pretrial conference is set for September 2, 2011. The case is set for trial on the Court’s September 12, 2011 trailing docket.
MEMORANDUM OPINION AND ORDER
JAMES BROWNING, District Judge
THIS MATTER comes before the Court on the Letter from Robyn Hoffman to the Court (dated March 24, 2011), filed March 24, 2011 (Doc. 78). The Court held a hearing on March 25, 2011. The primary issues are: (i) whether the Court should order Plaintiff Erica Baker to answer interrogatories and requests for admissions relating to her relationship with Joshua Baker, a superior officer in the Lovington, New Mexico Police Department, whom she later married; and (ii) whether the Court should order E. Baker to admit or deny that, when Officer Edwin Salazar touched her pocket flap, she was wearing a bullet proof vest. Because the Court concludes that the information sought regarding E. Baker’s relationship with J. Baker may lead to admissible evidence, and for the reasons stated on the record at the hearing and for further reasons stated herein, the Court will overrule E. Baker’s objections, require her to amend her answer to Interrogatory No. 9 in the Plaintiff’s Responses to Defendant’s Second Set of Interrogatories (“Interrogatory”), and order her to amend her response to Defendants’ First Request for Admissions Request for Admissions Nos. 5 and 10 of the Plaintiff’s Responses to Defendants’ First Request for Admissions (“Request for Admissions”). Because the Defendants have not filed a motion to overrule E. Baker’s objection to Request for Admissions No. 14, the Court will advise the parties that it is inclined to overrule the objection, but will not do so until and unless the Defendants properly move the Court.
FACTUAL BACKGROUND
E. Baker alleges that she was discriminated against on the basis of her sex and pregnancy while employed at the Lovington Police Department. She further alleges that she was sexually harassed. She also alleges that she was constructively discharged, based in part on receiving the silent treatment from her coworkers.
According to the Defendants’ account at the March 25, 2011 hearing, before their marriage, E. Baker and J. Baker were in a romantic relationship for a period of time. During this period, J. Baker became eligible for a promotion that would make him E. Baker’s superior officer. To avoid any conflicts, E. Baker decided to leave her employment at the Lovington Police Department. After E. Baker left the Lovington Police Department, J. Baker was promoted. After a time, E. Baker returned to the Lovington Police Department, and the Defendants contend that E. Baker was rehired based on her and/or J. Baker’s representations that their romantic relationship was terminated. Within three months of making those representations, E. Baker became pregnant with J. Baker’s child. The Defendants thus contend that E. Baker falsely represented to her coworkers that her romantic relationship with J. Baker had ended and not resumed.
The City of Lovington Merit System Ordinance prohibits “[t]he practice or appearance of nepotism,” which is defined as “giving preferential treatment in areas of employment including, but not limited to selection, benefit, pay, promotion, and discipline to an employee’s near relative”; “near relative” includes “the employee’s spouse, and any former spouse(s), or to unrelated persons sharing a spousal relationship.” City of Lovington Merit System Ordinance at 13 (dated August 31, 2001). The City of Lovington Merit System Ordinance does not define “spousal relationship,” but the inclusion of the term in a list that separately delineates “the employee’s spouse” suggests it is a significant romantic relationship that does not involve marriage.
The Defendants introduced the City of Lovington Merit System Ordinance at the hearing, but did not file it.
PROCEDURAL BACKGROUND On December 12, 2010, E. Baker filed her First Amended Complaint for Discrimination. See Doc. 19 (“FAC”). She brings sex and pregnancy discrimination and sexual harassment claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, and a constructive discharge claim. The Defendants filed their Answer to First Amended Complaint for Discrimination [Doc. 19], filed December 14, 2010 (Doc. 27).
The discovery to which E. Baker objects seeks: (i) information about the nature of her relationship with J. Baker, see Interrogatory No. 9, at 2 (“On what date did your relationship with Joshua Baker become a romantic relationship?”); Request for Admissions No. 5, at 2 (“Admit that in October 2008 you assured Chief Chan Kim that your romantic relationship with Joshua Baker had ended.”); Request for Admissions No. 10, at 3 (“Admit that you did not advise your supervisor immediately after you resumed your romantic and sexual relationship with Joshua Baker.”); and (ii) an admission that E. Baker was wearing a bullet proof vest when Salazar touched her shirt pocket flap, see Request for Admissions No. 14, at 4 (“Admit that when Officer Edwin Salazar touched your pocket flap, you were wearing a bullet proof vest.”). At the hearing, E. Baker’s counsel stated that she has no objection to the Defendants inquiring when she cohabitated with J. Baker, but that information relating to when and whether her relationship with J. Baker became romantic or sexual is highly intrusive, is not relevant to the issues in this case, and is not reasonably calculated to lead to the discovery of admissible evidence. E. Baker also objected to the Defendants’ argument regarding discovery whether E. Baker was wearing a bullet proof vest, because the Defendants’ letter to the Court did not refer to this matter. The Defendants responded that the information they seek relates to E. Baker’s constructive discharge and sexual harassment claims.
At the parties’ request at the hearing, the Court altered the scheduling order. The Court provided the new deadlines as follows: (i) discovery motions are due May 19, 2011; (ii) the motion deadline is May 31, 2011; (iii) a motion hearing it scheduled July 6, 2011 at 9:00 a.m.; (iv) Baker’s part of the pretrial order is due to the Defendants on July 28, 2011; The Defendants’ pretrial order is due to the Court on August 3, 2011; (v) the pretrial conference is scheduled for August 4, 2011, at 1:30 p.m.; and (vi) the trial is scheduled on the Court’s trailing docket for August 29, 2011.
ANALYSIS
The Court overrules E. Baker’s objections to disclosing information about her relationship with J. Baker, because the Defendants’ inquiries appear to be reasonably calculated to lead to discoverable evidence. The information the Defendants seek whether and when E. Baker’s relationship with J. Bake became romantic and sexual is relevant to the Defendants’ defense against E. Baker’s constructive discharge claim. E. Baker alleges that she was constructively discharged in part because she “was subjected to the `silent treatment’ at work.” FAC ¶ 47, at 9. The Defendants contend that the nature and timing of her relationship with J. Baker is relevant to E. Baker’s allegation in support of her constructive discharge claim.
The Defendants assert that E. Baker’s representations about her relationship with J. Baker are relevant to her truthfulness and her qualifications for being rehired. The Defendants further contend that E. Baker’s false statements contributed to bad feelings against her in the department, contributing to a non-discriminatory basis for the silent treatment that is part of the basis of her constructive discharge claim. The timing of E. Baker’s romantic relationship with J. Baker and her representations to her supervisors thus have some marginal relevance to the issues in this case, because E. Baker’s relationships will likely be part of the evidence and issues at trial. Moreover, the Court does not believe the additional discovery is unduly intrusive, because it seeks only a date, see Interrogatory No. 9, at 2 (“On what date did your relationship with Joshua Baker become a romantic relationship?”), and information about representations E. Baker did or did not make to her supervisors, see Request for Admissions No. 5, at 2 (“Admit that in October 2008 you assured Chief Chan Kim that your romantic relationship with Joshua Baker had ended.”); Request for Admissions No. 10, at 3 (“Admit that you did not advise your supervisor immediately after you resumed your romantic and sexual relationship with Joshua Baker.”). The Court therefore overrules E. Baker’s objections and orders her to respond to Interrogatory No. 9, and Request for Admissions Nos. 5 and 10. ANALYSIS
The Court overrules E. Baker’s objections to disclosing information about her relationship with J. Baker, because the Defendants’ inquiries appear to be reasonably calculated to lead to discoverable evidence. The information the Defendants seek whether and when E. Baker’s relationship with J. Bake became romantic and sexual is relevant to the Defendants’ defense against E. Baker’s constructive discharge claim. E. Baker alleges that she was constructively discharged in part because she “was subjected to the `silent treatment’ at work.” FAC ¶ 47, at 9. The Defendants contend that the nature and timing of her relationship with J. Baker is relevant to E. Baker’s allegation in support of her constructive discharge claim.
The Defendants assert that E. Baker’s representations about her relationship with J. Baker are relevant to her truthfulness and her qualifications for being rehired. The Defendants further contend that E. Baker’s false statements contributed to bad feelings against her in the department, contributing to a non-discriminatory basis for the silent treatment that is part of the basis of her constructive discharge claim. The timing of E. Baker’s romantic relationship with J. Baker and her representations to her supervisors thus have some marginal relevance to the issues in this case, because E. Baker’s relationships will likely be part of the evidence and issues at trial. Moreover, the Court does not believe the additional discovery is unduly intrusive, because it seeks only a date, see Interrogatory No. 9, at 2 (“On what date did your relationship with Joshua Baker become a romantic relationship?”), and information about representations E. Baker did or did not make to her supervisors, see Request for Admissions No. 5, at 2 (“Admit that in October 2008 you assured Chief Chan Kim that your romantic relationship with Joshua Baker had ended.”); Request for Admissions No. 10, at 3 (“Admit that you did not advise your supervisor immediately after you resumed your romantic and sexual relationship with Joshua Baker.”). The Court therefore overrules E. Baker’s objections and orders her to respond to Interrogatory No. 9, and Request for Admissions Nos. 5 and 10.
E. Baker also alleges an incidents of sexual harassment when Salazar touched E. Baker’s pocket flap. In Request for Admissions No. 14, the Defendants seek to discover whether E. Baker was wearing her bullet proof vest when the alleged touching occurred. E. Baker contends that whether she was wearing a bullet proof vest is irrelevant, because sexual harassment is judged from the victim’s point of view. Because E. Baker requested at the hearing that the Court not rule on her objection without having the parties brief their positions, the Court will not decide the issue, but will give the parties guidance. The Court believes that a reasonable jury could consider whether E. Baker was wearing a bullet proof vest relevant to whether a reasonable victim would perceive someone touching her pocket flap as sexual harassment, and is inclined to overrule E. Baker’s objection and order her to respond to Request for Admissions No. 14.
IT IS ORDERED that the requests in the Letter from Robyn Hoffman to the Court (dated March 24, 2011), filed March 24, 2011, 2011 (Doc. 78), are granted, and Plaintiff Erica Baker shall submit her responses to the Defendants’ discovery about her relationship with Joshua Baker by March 29, 2011. The Court will not decide whether to overrule E. Baker’s objection to disclosing whether she was wearing a bullet proof vest when an officer allegedly touched her pocket flap unless and until the issue is properly before the Court. The Court alters the scheduling order as follows: (i) discovery motions are due May 19, 2011; (ii) the motion deadline is May 31, 2011; (iii) a motion hearing it scheduled July 6, 2011 at 09:00 a.m.; (iv) Baker’s pretrial order is due on July 28, 2011; The Defendants’ pretrial order is due on August 3, 2011; (v) the pretrial conference is scheduled for August 4, 2011, at 1:30 p.m.; and (vi) the trial is scheduled on the trailing docket for August 29, 2011.
42 U.S.C. § 2000e
Current through P.L. 117-168 (published on http://www.congress.gov on 08/10/2022), except for [P. L. 117-167]
Section 2000e – Definitions
For the purposes of this subchapter-
(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after March 24, 1972, or (B) fifteen or more thereafter, and such labor organization-
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [ 29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [ 45 U.S.C. 151 et seq.];
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [ 29 U.S.C. 401 et seq.], and further includes any governmental industry, business, or activity.
(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [ 43 U.S.C. 1331 et seq.].
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
(l) The term “complaining party” means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter.
(m) The term “demonstrates” means meets the burdens of production and persuasion.
(n) The term “respondent” means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e-16 of this title.
current through 7/8/2022 All this is Public
I did my best to wade through the notes of the Baker 2011 court case. But I saw nothing in the piece that provides a final disposition of the lawsuit.
I have no compassion for Erica Baker, who charged me three times in cases that were dismissed 3 times– for Disobeying an order, assaulting a peace officer and Battery on a Peace officer, all done by summons, since she appears not to be able to effect an arrest on a 70s year-old man without backup.
That said, I fear that she will prevail against the City and receive a large settlement (Undeserved to be sure) on the basis of the City’s inability to follow Law and Rules.
Though I lost my suit against the City’s $50 per month electric meter reading fee it cost the City over $20,000, paid to Santa Fe attorneys to defeat me. If the City goes belly up it will be thanks to the incompetence of City Elected Officials and Management,, oh yes and contract lawyers like J. Rubin. The City ignores its responsibility to the people as it coddles its employees.
Mr. Fenn has been, for better or worse, a thorn in the side of city employees for some time. He enjoys the attention and celebrates the fact that he has cost us $20,000 in legal fees. His latest “project” is haranguing the county commissioners with Trump/QAnon initiated false claims of voter fraud and infiltrated voting machines.
Consider the source, friends.