amended complaint in lawsuit against san juan county sheriff's office

8/11/2019 Amended complaint in lawsuit against San Juan County Sheriff's Office

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

SHANE UTLEY, BETH UTLEY,

LISA HAWS, and MATT WILCOX,

Plaintiffs,

v. 14-cv-00357JCH/SMV

BOARD OF COMMISSIONERS, SAN JUAN COUNTY,

SAN JUAN COUNTY SHERIFF’S OFFICE,

KEN CHRISTESEN, in his individual capacity,

RON ANDERSON, in his individual capacity, and

BRICE CURRENT, in his individual capacity,

Defendants.

AMENDED COMPLAINT FOR VIOLATIONS OF THE FIRST AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION–42 U.S.C. § 1983,

BREACH OF AN IMPLIED CONTRACT OF EMPLOYMENT, AND

VIOLATIONS OF THE GOVERNMENT CONDUCT ACT

COME NOW Plaintiffs Shane Utley, Beth Utley, Lisa Haws, and Matt Wilcox, by and

through their counsel, Law Offices of Michael E. Mozes, P.C., and hereby submit their Amended

Complaint for Violations of the First and Fourteenth Amendments of the United States

Constitution–42 U.S.C. § 1983, Breach of an Implied Contract of Employment, and Violations of

the Government Conduct Act.

I. JURISDICTION

1. This cases arises under 42 U.S.C. § 1983 for violations of the First and Fourteenth

Amendments of the United States Constitution and New Mexico common law.

2. Plaintiff Shane Utley is, and at all times material hereto has been, a resident of the

County of San Juan, State of New Mexico.

3. Plaintiff Beth Utley is, and at all times material hereto has been, a resident of the

Case 1:14-cv-00357-JCH-KK Document 38 Filed 09/29/14 of 40




4. Plaintiff Lisa Haws is, and at all times material hereto has been, a resident of the


5. Plaintiff Matt Wilcox is, and at all times material hereto has been, a resident of the


6. Defendant Board of Commissioners, San Juan County is, and at all times material

hereto has been, a governmental entity of the County of San Juan, located and principally doing

business in, the County of San Juan, State of New Mexico.

7. Defendant San Juan County Sheriff’s Office [hereinafter “SJCSO”] is, and at all

times material hereto has been, a governmental entity of the County of San Juan, located and

principally doing business in, the County of San Juan, State of New Mexico.

8. Defendant Ken Christesen [hereinafter “Christesen”] is, based upon information

and belief, a resident of the County of San Juan, State of New Mexico.

9. Defendant Ron Anderson [hereinafter “Anderson”], is, based upon information

and belief, a resident of the County of San Juan, State of New Mexico.

10. Defendant Brice Current [hereinafter “Current”] is, based upon information and

belief, a resident of the County of San Juan, State of New Mexico.

11. On March 24, 2014, both Mss. Haws and Utley filed Charges of Discrimination

with the New Mexico Department of Workforce Solutions, Human Rights Bureau (HRB), which

were concurrently filed with the Equal Employment Opportunity Commission (EEOC).

12. The SJCSO is a suable governmental entity within the meaning of the Civil Rights

Act of 1963, as amended by the Civil Rights Act of 1991, Title VII.

13. These Charges are administratively exhausted as of September 23, 2014 because

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180 days will have passed since the filing of these charges with the EEOC .

14. The federal District Court has jurisdiction over the subject matter of Plaintiffs’

claims through 28 U.S.C. § 1331, federal question jurisdiction, 28 U.S.C. § 1343, civil rights

jurisdiction, and pendent jurisdiction on Plaintiffs’ state law claims.

15. This Court has personal jurisdiction over the parties to this action.

16. Venue is proper in this Court.

II. FACTUAL ALLEGATIONS

17. Plaintiffs hereby adopt and incorporate by reference paragraphs 1 through 16 as

set forth above.

18. Christesen, at all times relevant to Plaintiffs’ claims, exercised the job duties and

responsibilities of the Sheriff of San Juan County. In his position of Sheriff, Christesen

constituted the policy-making authority and highest operational authority of the SJCSO.

Christesen also constituted the ultimate authority in the SJCSO with respect to the application of

San Juan County personnel policies and procedures.

19. During the period of time relevant to Plaintiffs’ claims, Anderson exercised the

duties and responsibilities of the Undersheriff of San Juan County. Anderson exercised policy-

making authority and had operational authority over the nature of Plaintiffs’ duties and the

application of San Juan County personnel policies and procedures.

20. Current, who occupied principally the duties of a lieutenant or captain during the

period of time pertinent to Plaintiffs’ claims, often acted as the proxy and spokesperson for the

will, opinions, and directions of Christesen and Anderson–as set forth more fully below.

21. At all times relevant hereto, Plaintiffs were employees of the SJCSO. Plaintiffs

continue to remain employed with the SJCSO.

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22. Shane Utley, during all times relevant hereto, performed the job duties and

responsibilities of a Captain. In that position, Mr. Utley’s principal job duties were related to

Sheriff’s Office Operations Division Captain. Mr. Utley was directly supervised by Christesen

and Anderson.

23. Beth Utley, during all times relevant hereto, performed the job duties and

responsibilities of a Public Information Officer (PIO) and Community Relations Coordinator. At

all times relevant hereto, Ms. Utley’s direct supervisor was Christesen and her indirect supervisor

was Anderson.

24. Lisa Haws, during the relevant time pertinent to her claims, principally performed

the job duties and responsibilities of a Lieutenant. In that position, Haws mainly supervised the

patrol division. Haws supervisors were Mr. Utley and, indirectly, Anderson and Christesen.

25. Matt Wilcox, during the period of time pertinent to his claims, performed the

duties and responsibilities of a Lieutenant and Sergeant. Mr. Wilcox’s direct supervisors were

Ms. Haws, Shane Ferrari and, indirectly, Mr. Utley, Anderson and Christesen.

26. On March 1, 2010, Mr. Wilcox received a SJCSO promotion from Sergeant to

Lieutenant. The Sheriff at the time was Mark McCloskey. Based upon the feedback from the

great majority of the Sergeants, McCloskey instituted in February 2010 a promotion process from

sergeant to lieutenant a Command Staff interview process. This process involved a written

exercise, an interview with command staff, and staff evaluations. These same elements appeared

in the discretionary assessment process set forth in Policy No. 3000-12 for promotions.

27. As a result of the approved promotional process, the SJCSO promoted Mr.

Wilcox into a Support Lieutenant position, effective March 7, 2010.

28. On September 25, 2010, Captain Jim Smith of the SJCSO gave Mr. Wilcox a 6-

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month performance review, noting that Mr. Wilcox had done an “excellent job” as Support

Lieutenant. The review concluded that Mr. Wilcox had no areas of performance that needed

improvement.

29. In early 2011, the citizens of San Juan County elected Christesen as the new

Sheriff. During the election, Mr. Wilcox publicly supported the candidacy of Marlyn Wyatt for

Sheriff and vocally opposed Christesen.

30. While the Sheriff’s campaign was in full swing, a number of salaried SJCSO

employees approached Mr. Wilcox and advised him that Christesen was stating that Mr. Wilcox

would be demoted if Christesen won the Sheriff’s election.

31. Shortly before the vote for Sheriff, Christesen went to Mr. Wilcox’s house and

requested that Mr. Wilcox cease speaking against Christesen. When Mr. Wilcox remarked that

he had heard that Christesen intended to demote him, Christesen promised Mr. Wilcox that in

exchange for Mr. Wilcox’s refusal to publicly speak out against Christesen that if Christesen

were elected, he would not demote Mr. Wilcox.

32. Christesen won the election for sheriff and took office in January 2011.

33. On February 2, 2011, Christesen wrote Mr. Wilcox a memorandum, advising that

Mr. Wilcox’s rank of lieutenant was being rescinded and a different assessment process was

being utilized. In addition, Christesen stated that Mr. Wilcox could not grieve this personnel

action. Christesen, by rescinding Mr. Wilcox’s lieutenancy, violated both the promotional policy

in place and the Command Staff interview process established by McCloskey.

34. While the assessment process Christesen explained ran its course, Mr. Wilcox

maintained his Lieutenant rank and pay. On April 11, 2011, Christesen advised Mr. Wilcox that

effective April 17, 2011 Mr. Wilcox would be demoted to a sergeant’s position with reduced pay.

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35. According to the assessment administered by a panel under Christesen’s control,

Mr. Wilcox scored out from among the seven eligible sergeants with the lowest point total for the

assessment. This score is outlandish and constitutes Christesen’s attempt to not only foreclose

Mr. Wilcox from holding on to his lieutenant’s position, but also any future lieutenant opening.

Christesen represented to other SJCSO employees that Mr. Wilcox would never be promoted

while Christesen remained Sheriff.

36. The recision of Mr. Wilcox’s rank, the failure to promote Mr. Wilcox into the

lieutenant position, and the loss of pay and level of duties associated with the demotion are

adverse employment actions in which Mr. Wilcox’s exercise of free speech and political

associations were a substantial or motivating factor.

37. During the period of time Mr. Wilcox has performed duties as a sergeant his

performance evaluations have been “Excellent.” In addition, during the period of time he has

been a sergeant, Mr. Wilcox has received awards and commendations for his performance.

38. On January 31, 2013, the SJCSO, under Current’s signature, issued Mr. Wilcox a

letter of reprimand for allegations related to communications with SJCSO deputies. The letter of

reprimand was an unsupported, groundless, and retaliatory over-reaction to a minor incident.

Written reprimands, pursuant to SJCSO Policy No. 3000-05, are to issue for substantial or

repeated violations of policy in which verbal warnings or verbal counseling is not appropriate or

has proven to be ineffective. A number of provisions in the SJCSO were violated, not the least

of which are the investigatory requirements. This was investigated, but no progressive discipline

was handed out. There are no similar violations in Mr. Wilcox’s file.

39. As of this date, Mr. Wilcox continues to be a target or retaliatory conduct and

disparate treatment because now, in the midst of another electoral season involving the Sheriff,

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Mr. Wilcox is not politically supporting Christesen’s re-election.

40. Mr. Wilcox as recently as late March 2014 has reported to San Juan County’s

Human Resources Department (“HR”) that he is being subject to retaliation and a hostile work

environment. Based on Mr. Wilcox’s knowledge, the HR Department has done nothing to

protect him and investigate his complaints. By and large, the HR Department has been

unresponsive to Mr. Wilcox’s concerns.

41. Ms. Haws, who for a period of time has supervised Mr. Wilcox, has suffered an

on-going campaign of retaliation, hostility, and disparate treatment from the SJCSO and the

individually-named defendants.

42. Effective February 8, 2009, the SJCSO promoted Ms. Haws into the position of

Patrol Lieutenant in the SJCSO. Ms. Haws worked a few months on patrol before being

promoted to the Detective Division, where she became the Detective Lieutenant of the SJCSO.

Ms. Haws is the first and only female ever promoted into a lieutenant’s position at the SJCSO.

43. During the 2010-11 campaign for Sheriff, Ms. Haws vocally supported the

candidacy of Marlyn Wyatt. Christesen repeatedly commented during the Sheriff’s campaign

that he intended “to get rid of the Haws mafia.” Ms. Haws husband, Neil Haws, is also a

lieutenant with the SJCSO.

44. Christesen actually went door-to-door during the campaign and stated to voters

that if Christesen was elected he would “get rid of the Haws mafia.” There are numerous

witnesses to these comments. Indeed, on the night of his election, Christesen reiterated to a

group of people that he now intended “to get rid of the Haws mafia.”

45. Shortly after being elected as Sheriff in January 2011, Christesen began his

retaliatory campaign. In April 2011, Christesen demoted Ms. Haws to a patrol lieutenant

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position. Although the demotion did not result in a loss of pay to Ms. Haws, the demotion did

lead to reduced job duties, diminished promotional opportunities, and prestige. The male who

replaced Ms. Haws in the detective lieutenant position was significantly lesser-qualified.

46. Christesen communicated to other SJCSO employees that he had demoted Ms.

Haws for the purpose of forcing Ms. Haws to involuntarily resign.

47. At all times relevant during to Ms. Haws claims, she performed her job duties and

responsibilities in an “excellent” manner, as noted in the relevant performance evaluations. In

addition, during the period 2011-2014, Ms. Haws has received a number of commendations for

her outstanding performance.

48. Ms. Haws has made known for years within the SJCSO her desire to attend the

prestigious FBI National Academy (“NA”). The NA is a training for command staff–lieutenant

or above–that has limited attendance. In July 2011, Shane Ferrari, who had recently received a

promotion into a lieutenant’s position and was still a probationary employee was selected by

Christesen to attend the NA.

49. In late 2011 or early 2012, Daniel Webb, another recently promoted lieutenant,

advised Ms. Haws that he would be going to the NA next. Ms. Haws became rightfully upset

and complained to Christesen that although she was the senior lieutenant she was being

improperly passed over to receive the NA training. Males were being regularly selected in the

face of Ms. Haws known desire to attend the training.

50. The NA training can and does affect promotional opportunities within the SJCSO.

51. In September 2012, Ms. Haws again learned that she was being passed over for

the NA training in favor of another recently promoted male lieutenant. Ms. Haws approached

Christesen and asked if she could be considered for the NA. Christesen responded “Yes” and

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elaborated that it did not matter to him whether Ms. Haws or another male lieutenant attended the

training first. Ms. Haws was senior to the male applicant in time in service.

52. Nevertheless, time passed and Ms. Haws was not selected by Christesen to attend

the NA training.

53. In September 2013, Luke Miller, the Albuquerque Coordinator of the NA,

specifically stated to the SJCSO that the FBI wanted Ms. Haws to attend the training. Christesen

refused to allow Ms. Haws to attend the training. Even contact from the FBI SAC in

Albuquerque could not convince Christesen to allow Ms. Haws to attend the training. The FBI

request was due, in part, to the shortage of females who qualified for and attended the NA.

54. On March 12, 2014, Current entered Ms. Haws’ office to speak with her about

Mr. Utley’s support for Christesen related to the upcoming June 2014 election for Sheriff.

Current essentially stated that Mr. Utley was required to actively support Christesen during the

election. Otherwise, negative consequences would be attached to Mr. Utley’s lack of support.

On March 17, 2014, Christesen told Ms. Haws that Mr. Utley “is playing a dangerous game” and

“going down a dangerous road.” Ms. Haws understood that Christesen was referring to Mr.

Utley supporting the Sheriff during the election campaign.

55. On March 17, 2014, Christesen advised Ms. Haws that she had been chosen to

attend the NA but Christesen would not permit it at the time. Christesen also explained that he

had notified the FBI that his refusal was due to Christesen’s view that sending Ms. Haws because

she was a female was inappropriate. This conversation occurred in the context of the upcoming

elections and Ms. Haws’ statement to Christesen that she would support him. Haws made this

statement because she was tired of three years of disparate treatment and hardship. Ms. Haws

believed she had no other choice and feared further retaliation.

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56. Ms. Haws commented to Christesen that she was being passed over repeatedly by

males who had lesser service time and experience in the SJCSO. Ms. Haws squarely asked

Christesen if she was being discriminated against because of the fact that Ms. Haws had not

supported Christesen in the last Sheriff’s election.

57. When Ms. Haws requested on March 17th that Christesen give her a definitive

answer on whether she would ever be able to attend the NA, Christesen responded that the

decision would not be made until after the upcoming Sheriff’s election.

58. Ms. Haws understood at that point that Christesen was connecting any possibility

of her ever attending the NA to her electoral support for Christesen.

59. On March 20, 2014, Ms. Haws attended a luncheon sponsored by the NA. Ms.

Haws spoke with Miller. Miller related to Ms. Haws the fact that the FBI had provided two

positions in the NA to the SJCSO for the express purpose of having Ms. Haws attend. Miller

also shared the conversation the FBI had in which it was specifically requested of the Sheriff that

he allow Ms. Haws to attend the NA.

60. On March 24, 2014, Ms. Haws filed an Equal Employment Opportunity

Commission (EEOC) complaint, alleging that she had been treated differently from other males

with respect to attendance at the NA because she is female.

61. By the date of the filing EEOC complaint, Ms. Haws was senior in time in rank

and service to the following males who had attended or were scheduled or promised to attend the

NA–Shane Ferrari, Cory Tanner, and Daniel Webb.

62. On March 25, 2014, Ms. Haws contacted the San Juan County HR for the purpose

of filing a complaint against the SJCSO and Christesen related to the workplace discrimination

harassment, and hostility she encountered. San Juan County HR refused to take her complaints,

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improperly stating that since a complaint had been filed in the EEOC that HR could do nothing

for Ms. Haws. Such is not supported in the San Juan County Employee Handbook generally and

specifically in Sections 18 and 19.

63. Following the filing of her EEOC Complaint, Ms. Haws has been subjected to a

hostile work environment by the SJCSO, Christesen, and Anderson. The Sheriff no longer

speaks with Ms. Haws, ignores her in the workplace, and has created a work environment where

Ms. Haws is isolated, alienated, and separate.

64. On March 27, 2014, Undersheriff Anderson met with the SJCSO staff and stated

that Anderson would henceforth monitor the comings and goings of staff. For many years the

policy had been that SJCSO employees could come and go freely as long as they worked their

40-hour weeks. This new policy was clear retaliation for the complaints lodged by Ms. Haws

and others.

65. On January 1, 2011, Ms. Utley became the Public Information Officer (PIO) for

the SJCSO. Her direct supervisor was the Sheriff, Ken Christesen and her indirect supervisor

was the Undersheriff, Ron Anderson.

66. In December 2011, Ms. Utley received an Exceptional Service Award for her

outstanding work ethic and job performance.

67. During the period January 1, 2011 until April 11, 2013, Ms. Utley received no

complaints from Anderson or Christesen related to her work performance. It is an obligation of a

SJCSO to advise employees of any performance-related problems. Ms. Utley’s performance was

evaluated by Anderson on April 25, 2012 for the 2011 work year. Anderson rated Ms. Utley as a

“good” employee. No needs improvement ratings appear on this evaluation

68. In January 2013, Ms. Utley received a certification that qualified her as the only

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certified PIO in San Juan County.

69. On April 11, 2013, Christesen and Anderson met with Ms. Utley. Prior to this

meeting, Anderson and Current had for several weeks ignored Ms. Utley and refused to speak

with her. Ms. Utley did not know what caused this behavior.

70. Christesen and Anderson presented Ms. Utley with her 2012 evaluation, which

included an number of “Needs Improvement” ratings. Prior to presenting Ms. Utley with this

evaluation, neither Christesen nor Anderson had complained to Ms. Utley about any facet of her

work performance.

71. The anniversary date of Ms. Utley’s employment with the SJCSO was January

2012. The 2012 performance evaluation, according to San Juan County personnel policies, was

to be completed within 30 days of Ms. Utley’s anniversary date. It was not.

72. In such circumstances, the San Juan County Employee Handbook, Section 13.3,

the presumption is that the employee’s performance is satisfactory and a step increase is awarded.

73. Ms. Utley is the only female employee supervised by Anderson. Other male

employees supervised by Anderson received notice of performance deficiencies and were given

opportunities to improve. Ms. Utley was not. In addition, Ms. Utley asserts that the “needs

improvement” ratings noted on the April 11, 2013 evaluation were fictitious, retaliatory, and

made with evil intent. Christesen and Anderson ignored and gave no consideration to Ms.

Utley’s explanations related to the allegations of poor performance. In large part, the

deficiencies noted on the performance evaluation were due to the negligence and failure to

respond appropriately of Christesen and Anderson.

74. This evaluation meeting turned hostile and threatening when Ms. Utley opposed

the ratings given or tried to present explanations for the performance deficiencies alleged.

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81. In January 2014, Ms. Utley learned that Elizabeth Valdez was retiring from her

position of Office Manager with the SJCSO. At that time, Ms. Utley was the only qualified

SJCSO employee who could meet the requirements of the position.

82. Christesen mentioned that he was going to place an under-qualified male, Eli

Lisko, into Valdez’ former position. When Christesen received disagreement with this decision,

he then promoted two under-qualified females into Valdez’ former position. He also gave Eli

Lisko a promotion.

83. In order to make these personnel decisions, Christesen had to (1) change the

qualifications for the position; (2) fail to provide any consideration for Ms. Utley’s interest in the

position; (3) change the position(s) to a non-exempt job; and (4) manipulate and pervert the

promotion and classification policies of the SJCSO. At no point did Christesen engage the

required assessment process for this position.

84. By now Current was speaking negatively about Ms. Utley in the workplace and

criticizing Ms. Utley’s work performance. At no point in time did Current exercise any direct

supervision of Ms. Utley.

85. Current stated to Shane Utley that Ms. Utley was “just trying to sabotage the

Sheriff” and “make him look bad” after Current believed Ms. Utley had not done all in her power

to make a SJCSO golf tournament a success. Current even told this to people outside the

Sheriff’s Office. During a separate golf outing, Current spent a considerable amount of time “bad

mouthing” Ms. Utley to the Chief of Police of the City of Bloomfield, Mike Kovacs. Current’s

charges were without any evidence and patently false.

86. Current expressed that Ms. Utley was not a good PIO and should be fired. During

a March 2014 meeting related to budget cuts, Current expressed publicly his opinion that if any

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jobs are to be cut, then “Beth’s should be the first to go.”

87. Ms. Utley is an exempt employee.

88. It has been the custom and practice at the SJCSO for years that exempt employees

could take care of personal matters during a regular work day–as long as the employee made up

the time lost during the work week so that the total time at work amounts to at least 40 hours. In

addition, if an exempt employee works over 40 hours a week, the employee could take the extra

time off during a subsequent week.

89. Ms. Utley is the only exempt employee that is required to notify Anderson and

Christesen of her whereabouts during the work day.

90. Current has stated that Ms. Utley makes too much money and that Valdez also

made too much money. The only SJCSO employees Current has made these comments about are

these two females.

91. The individually-named Defendants have isolated and alienated Ms. Utley in the

workplace by not speaking with her, refusing to address her work concerns and complaints, using

“ambush” techniques to evaluate work performance, and spreading negative, false, and malicious

rumors about her as an employee and person. These efforts to discredit Ms. Utley have created a

hostile work environment in which Ms. Utley feels alone, without recourse, and abandoned.

92. On March 24, 2014, Ms. Utley filed an EEOC complaint alleging that she had

been subjected to a hostile work environment and discriminated against because of her sex.

93. Ms. Utley also filed a harassment complaint with San Juan County HR. As of the

date of this complaint, Ms. Utley is unaware of any investigation or other activity related to this

harassment complaint.

94. Mr. Utley learned in early March 2014 that a close family friend, Mike Kovacs,

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would be running for Sheriff of San Juan County. Although Kovacs was a long-time friend of

the Utley family, Mr. Utley told Kovacs that Mr. Utley had already disclosed to Christesen that

Mr. Utley would support Christesen’s re-election. The election for Sheriff is to be held in June

2014.

95. During the course of the last three years, Christesen has represented to Mr. Utley

and others in the SJCSO on a number of occasions that Mr. Utley would be appointed

Undersheriff should Christesen prevail in the June 2014 elections.

96. In March 2014, Mr. Utley learned through other sources that Christesen was

unhappy with Mr. Utley because Christesen believed that Mr. Utley would support Kovacs in the

upcoming election.

97. Mr. Utley then spoke with Christesen in the SJCSO workplace that Mr. Utley

remained loyal to Christesen and would support Christesen in the election.

98. On March 11, 2014, a conversation took place in the SJCSO workplace that

involved Mr. Utley, Christesen, Shane Ferrari, Anderson, and Current. The conversation

centered on the June 2014 election for Sheriff. During the conversation Christesen stated he

needed to know that he had the support of all present. Current directly asked Mr. Utley if

Christesen could count on his support.

99. Under the guise of taking a phone call, Christesen, Anderson, and Ferrari then left

the room, leaving Mr. Utley and Current behind. Current, acting as the mouthpiece of

Christesen, then began questioning the support of Mr. Utley. When Mr. Utley reiterated his

support for Christesen, Current responded by stating that Mr. Utley needed to get donations for

Christesen’s re-election bid, needed to have a campaign sign put in his front yard that supported

Christesen, needed to get his entire family involved in getting Christesen re-elected, and needed

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to do more towards Christesen’s re-election.

100. While this conversation ensued between Mr. Utley and Current, Christesen

roamed the hallway outside the room, constantly looking inside. It was obvious that Current was

acting at the behest of Christesen and merely repeating questions and comments Current and

Christesen had discussed beforehand. As proof of this motive, Current, who had no authority to

speak about or direct such matters, stated that Mr. Utley would only be Christesen’s Undersheriff

if he complied with the demands Current was making. On March 12, 2014, Captain Brice

Current, while on duty, reiterated the above conversation he had with Mr. Utley to Lieutenant

Lisa Haws (Mr. Utley’s subordinate) in Ms. Haws’ office.

101. On March 18, 2014, Current again spoke with Mr. Utley in the workplace about

supporting Christesen during the election. Current noted that Mr. Utley did not sufficiently

support the re-election of Christesen. Current complained once more that Utley needed to

support Christesen financially and do more. Current demanded that Mr. Utley have his parents

place a large campaign sign supporting Christesen on their property. When Mr. Utley responded

that he could not do that because his family supported Kovacs, Current angrily replied that Mr.

Utley could force his parents to place such a sign. That evening Mr. Utley attended a campaign

function with Christesen, demonstrating his support for Christesen’s re-election.

102. On March 18, 2014, Mr. Utley also spoke with Christesen, stating that he feared

for his job security because of what Ms. Haws had communicated about Christesen remarking

that Mr. Utley was playing a dangerous game. Mr. Utley’s concern was genuine and he feared

that he could be terminated at any time.

103. A few days later Ferrari advised Mr. Utley that Christesen was concerned about

whether Mr. Utley would support Christesen’s re-election bid.

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104. Mr. Utley also learned through Lieutenant Neil Haws that Christesen was

complaining about Mr. Utley’s supposed lack of support. Lt. Haws also stated that Christesen

made the comment to him that Mr. Utley was playing a dangerous game. During this period,

Christesen made known to a number of SJCSO employees that Christesen was unhappy with the

level of Mr. Utley’s political support.

105. In an under-handed effort to try to win the Utley’s campaign support, Christesen

delayed giving both Mr. and Ms. Utley their yearly evaluations, which were due in January 2014.

Based upon Christesen’s comments to other SJCSO employees, Christesen believed that he

needed the Utley’s political support to win the June 2014 election; however, once that support

was no longer necessary, it was rumored Christesen would remove both Utleys from the SJCSO.

106. During March 2014, the SJCSO was permeated with political conversations

related to garnering support for Christesen. These conversations were coercive and placed

enormous amounts of pressure upon the Utleys and others. In the Utleys’ case, Christesen made

it clear to that political support for his re-election equated with retention of employment in the

SJCSO.

107. In the midst of these circumstances, Mr. Utley decided to write Christesen in late

March 2014. Mr. Utley, by now mentally and emotionally worn down by the pressure exerted

upon him to support Christesen, told Christesen that he would no longer support Christesen’s re-

election. Mr. Utley also requested that Christesen notify Current to quit speaking poorly about

his wife.

108. On March 24, 2014, Mr. Utley filed a claim with the San Juan County HR,

claiming that Christesen and Anderson were violating County policy by campaigning while on

duty, violating the Governmental Conduct Act through their unethical behavior, and subjecting

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him to a hostile work environment.

109. After filing his complaint, on the very same day, Christesen and Anderson

confronted Mr. Utley about the filing of his claims. Christesen asked Mr. Utley why Mr. Utley

had gone to HR and filed his complaint. The conversation was inappropriate and caused Mr.

Utley great discomfort because Mr. Utley was forced to justify the filing of the hostile work

environment claim.

110. The head of San Juan County HR, Charlene Scott, notified Mr. Utley that his

complaint was going nowhere–leading Mr. Utley to believe that he would be quickly retaliated

against and the hostile work environment would turn more hostile. Scott is required under the

policies and procedures of Ordinance 34 of San Juan County to investigate Mr. Utley’s

claims–not summarily dismiss them.

111. Unsurprisingly, retaliation quickly began. The custom and practice, as stated

above, was to allow employees time to handle personal and other matters during the workday as

long as the employee made the time up during the week. On March 27, 2014, Anderson advised

the SJCSO staff that employees would henceforth be required to report any off-work activities

directly to Anderson for approval. This by-passed the clear chain of command and removed

supervisory duties from Mr. Utley’s and others’ purviews. Moreover, since the facts and

circumstances related to Mr. Utley’s political support for Christesen arose and the filing of the

hostile work environment complaint, Mr. Utley has been subjected to on-going harassment and

workplace hostility, including, but not limited to removal of some of his supervisory duties,

workplace intimidation and alienation, and intimidation from the individually-named

Defendants.

112. Employees of the SJCSO were required to abide by the policies and procedures of

19




both the SJCSO and the County. On repeated and numerous occasions, as set forth more fully

below, Defendants violated these policies and procedures.

113. Following the filing of the original Complaint in this action on April 16, 2014,

Defendant SJCSO and the individually-named Defendants have engaged in a calculated,

retaliatory campaign against Plaintiffs.

114. After the filing of the Complaint, Christesen removed supervisory duties from Mr.

Utley, including direct supervisory duties over SJCSO personnel that were associated with

Christesen’s “group” of supporters within the SJCSO. These actions resulted in diminished

supervisory duties for Mr. Utley and undercut and weakened his ability to supervise subordinate

employees.

115. Christesen and Anderson and the SJCSO canceled routine staff meetings that

involved the participation of Mr. Utley, further diminishing his ability to supervise staff.

Employees under Mr. Utley’s supervision became non-responsive to Mr. Utley’s direction and it

became commonplace that Mr. Utley could not even discover the whereabouts of his

subordinates.

116. Christesen and the SJCSO imposed upon all Plaintiffs disparate work rules and

obligations following the filing of the Complaint. By way of example, Christesen, Anderson, and

the SJCSO required all Plaintiffs to maintain a strict work schedule--7:00 a.m. to 5:00 p.m., with

an hour off for lunch–while other employees in the SJCSO were not required to follow such a

schedule and were permitted to participate in personal errands during the course of the work

day.

117. SJCSO employees were actively discouraged from helping and assisting Plaintiffs

in the performance of the Plaintiffs’ job duties and obligations. SJCSO employees were warned

20




that negative employment consequences could attach to provision of such assistance.

118. On July 16, 2014, Troy Morris, an officer with the Aztec Police Department, met

with Mr. Utley at the SJCSO regarding an allegation of embezzlement brought forward by

Christesen and the SJCSO. Morris communicated to Mr. Utley that the reported embezzlement

was related to the use of department-issued ammunition.

119. On that same day, Corey Tanner and Anderson of the SJCSO notified Mr. Utley

that the SJCSO had opened an internal affairs (IA) investigation related to the alleged

embezzlement.

120. On July 16, 2014, Mr. Utley indicated to Tanner and Anderson during the IA

interview that no facts supported the embezzlement allegations. It was apparent to Mr. Utley

that the bogus embezzlement charges were nothing more than retaliation for having filed the

federal action.

121. Eventually, Mr. Utley learned that the original claims of embezzlement were

communicated from Current to Christesen and that the allegations were related to a trade

involving a friend of Current’s, Casey Craig, that had been consummated approximately six

months prior.

122. Following the filing of the original Complaint, all Defendants actively engaged in

looking into Mr. Utley’s past history with the SJCSO in an ill-advised effort to find “dirt” on Mr.

Utley that could be used to threaten, affect, and damage Mr. Utley’s employment with the

SJCSO.

123. Due to these trumped-up and false charges of embezzlement, the SJCSO placed

Mr. Utley on administrative leave pending the results of the IA investigation.

124. Anderson advised Mr. Utley that he needed to start his retirement paperwork on

21




the same date that the SJCSO placed Mr. Utley on administrative leave. Mr. Utley rightly

considered this comment a threat that the SJCSO would do everything within its power to force

Mr. Utley out of the workplace.

125. In addition to the embezzlement charges, the SJCSO and the individually-named

Defendants dug up a stale claim that Mr. Utley had illegally and inappropriately modified a

shotgun that had been in use at the SJCSO for a number of years. Again, these allegations,

which merited no action by the SJCSO, were merely retaliatory claims brought forward for the

purpose of retaliating against Mr. Utley and forcing him out of the SJCSO.

126. In the midst of these bogus, but serious, charges being brought by the SJCSO and

the individually-named Defendants, Mr. Utley’s health began to significantly deteriorate. Mr.

Utley began to suffer from panic attacks, loss of sleep, emotional and mental stress, and a sense

of hopelessness. The deterioration of Mr. Utley’s health was directly related to the false and

frivolous charges being leveled against him. Mr. Utley sought medical attention for his medical

problems.

127. In light of the on-going investigations, the swift retaliation he encountered

following the filing of the original Complaint, and the on-going deterioration of his health, Mr.

Utley decided to retire from the SJCSO, effective August 1, 2014. The only reasons pertinent to

Mr. Utley’s decision to retire related to the unbearable retaliatory acts of the SJCSO and the

individually-named Defendants and the consequences on Mr. Utley’s health and his family.

128. Within days of Mr. Utley’s involuntary retirement, Christesen held a series of staff

meetings with SJCSO employees. In these meetings, Christesen defamed and slandered Mr.

Utley–referring to the Utleys’ political opposition to his candidacy for Sheriff, the reasons for

Mr. Utley’s retirement being the fact that Mr. Utley was an embezzler who had stolen

22




“thousands of rounds of ammo” from the department, the lack of integrity of the Plaintiffs, and

the absence of good character in the Plaintiffs. These comments were made to all the employees

in the SJCSO at the time.

129. Moreover, after the Plaintiffs filed the original Complaint, the individually-named

Defendants no longer spoke with Ms. Utley in the workplace. Due to these circumstances and

the need for her supervisors’ input regarding the performance of her job duties, Ms. Utley

attempted to communicate with the individually-named Defendants via e-mail. This proved

unsuccessful as well. Finally, in a last-ditch effort to receive needed support, Ms. Utley tried to

text her supervisors. Nothing Ms. Utley tried produced any response. She was isolated and left

to her own devices. This isolation of Ms. Utley occurred as a retaliatory act to force Ms. Utley

out of the workplace and make more difficult the performance of her job duties.

130. In late June 2014, the SJCSO, principally through Anderson, falsely accused Ms.

Utley of having lost SJCSO Foundation Board financial records. In addition, the SJCSO

decided to conduct an audit during the period of time Ms. Utley handled the Foundation’s

financial records, in hopes of finding some information that could justify their misconduct and

bad behavior towards Ms. Utley.

131. Following the filing of the original Complaint, the SJCSO, Christesen, and

Anderson pulled Ms. Utley out of duties related to Victim Services, in which Ms. Utley had

participated for quite a period of time. No justification was given for this action. Furthermore,

SJCSO, Christesen, and Anderson removed Ms. Utley from further supervisory duties.

132. In mid-July, due to the false allegations brought against her related to her

participation in the Foundation, the workplace isolation and hostility she encountered daily, and

the stress caused by the SJCSO’s, Christesen’s, and Anderson’s unlawful behavior, Ms. Utley

23




went to urgent care for stress-related issues. Because the retaliation for the filing of the original

Complaint has continually, over time, been ratcheted up, Ms. Utley decided she could no longer

work in this toxic, hostile, and intimidating work environment.

133. Effective August 8, 2014, Ms. Utley involuntarily resigned from the SJCSO,

choosing to safeguard her health and well-being rather than continue to work in the

circumstances described above.

134. Mr. Wilcox, after the filing of the original Complaint, was subjected to an IA

investigation related to the filing and the dissemination of the information contained in the

Complaint. This IA was initiated by another member of Christesen’s “group” who attempted

through the IA to harass and intimidate Mr. Wilcox. When the allegations supposedly

supporting the IA were shown to be patently untrue, the SJCSO backed off the IA. Although no

evidence supported the IA, the SJCSO left it open and continued to pressure and harass Mr.

Wilcox.

135. Following the filing of the original Complaint, the SJCSO retaliated against

Plaintiff Haws by forcing her husband, also a deputy with the SJCSO, into retirement. Prior to

being forced into an involuntary retirement, Neil Haws was demoted, became the subject of an

IA on the basis of false and incredible charges, and assigned to a position in which he no longer

had any supervisory duties.

136. Ms. Haws complained to the HRB and the EEOC that she had been discriminated

against because of her gender, female, in that she was prohibited from attending training that

was provided to lesser experienced males of lower rank.

137. Ms. Utley complained to the HRB and the EEOC that she had been subjected to

disparate treatment and a hostile work environment because of her gender, female. In addition,

24




Ms. Utley charged at that time that the SJCSO discriminated against her by hiring a less-

qualified male into an Office Manager position which Ms. Utley had sought.

COUNT I

42 U.S.C. § 1983

VIOLATIONS OF FREEDOM OF POLITICAL ASSOCIATION

FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION


set forth above.

139. The First Amendment of the United States Constitution prohibits public

employers from disparately treating employees because of their political beliefs, associations, and

affiliations. The only exception to this prohibition corresponds to where the employment

includes a requirement of political allegiance.

140. In this matter, due to the nature of the duties and responsibilities of Plaintiffs, no

requirement of political allegiance exists.

141. The Plaintiffs were subjected to official pressure to work for the candidacy of

Christesen at the risk of losing their employment and/or suffering adverse employment actions.

This coercion is a violation of each and every Plaintiff’s fundamental constitutional rights.

142. These Plaintiff have suffered a number of adverse employment actions where their

political affiliations and beliefs were substantial or motivating factors, including, but not limited

to, the creation of hostile work environments, refusals to allow and attend trainings, demotion,

retaliation, removal of job duties, unjustified and unfair disciplinary actions, disparate treatment

with respect to the terms and conditions of employment, abuse and perversion of mandatory

policies and procedures, unjustifiable performance evaluations and/or the lack thereof,

25




banishment to what are now dead-end jobs without prospects of promotion, and the conditioning

of employment privileges and rights on political support of Christesen.

143. In addition to the aforementioned adverse employment actions, since the filing of

the original Complaint and because Plaintiffs have chosen to exercise their free speech rights

through that filing, SJCSO and the individually-named Defendants have retaliated against

Plaintiffs in the following manner: (1) the removal of supervisory duties and other job duties

from Plaintiffs; (2) the selective imposition of work rules and requirements; (3) the further

creation of a hostile and intimidating work environment; (4) the raising of false and bogus

charges related to embezzlement, misuse of funds, and other matters; and (5) the defamation and

slander of Plaintiffs’ reputation and character, including, but not limited to, the self-serving and

capricious leaking of information related to confidential internal investigations to other SJCSO

employees.

144. In violating the Plaintiffs’ First Amendment rights, the Defendants acted under the

color of state law.

145. Plaintiffs are entitled to all remedies and relief available to them under the

provisions of 42 U.S.C. § 1983, including, but not limited to, punitive damages against the

individually-named Defendants for their willful, wanton, malicious, and grossly reckless conduct.

COUNT II

42 U.S.C. § 1983

VIOLATIONS OF FREEDOM OF SPEECH/RETALIATION

FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION

146 . Plaintiffs hereby adopt and incorporate by reference paragraphs 1 through 145 as

set forth above.

26




147 . At no time with respect to the constitutional violations of the Plaintiffs’ freedom

of speech rights did Plaintiffs speak according to their official duties.

148. Plaintiffs, in expressing their political opinions and beliefs regarding their reasons

to support or not support Christesen, spoke out on matters of public concern. This speech

constitutes protected speech under the First Amendment.

149. The governmental entities named as Defendants and the individually-named

Defendants’ interests in Plaintiffs’ comments related to political speech and other speech do not

outweigh the constitutional interests of Plaintiffs.

150. As set forth in paragraphs 142 and 143 above, the Plaintiffs’ exercise of free

speech constituted substantial factors in a number of adverse employment actions that these

Plaintiffs suffered and continue to suffer.

151. The adverse actions Plaintiffs complain of in relation to their exercise of their

First Amendment rights of free speech would not have occurred but for the exercise of that

speech. A causal connection exists between the adverse actions complained of and the protected

speech.

152. At all times relevant hereto, Defendants acted under the color of state law.

153. The Plaintiffs exercise of their free speech rights and privileges was not sufficient

to disrupt the operations of the SJCSO.

154. There exist no legitimate, constitutional reasons for the Defendants to have

retaliated against these Plaintiffs for the exercise of their free speech rights.

155. The retaliatory conduct Plaintiffs have suffered would have deterred a similarly-

situated employee from exercising his or her constitutional rights.

156 . Plaintiffs are entitled to all remedies available under 42 U.S.C. § 1983, including,

27




163. The selective treatment Mss. Utley and Haws complain of was motivated by an

intent to discriminate against them on the impermissible bases of gender as well as political

association and free speech.

164. The hostile work environment Mss. Haws and Utley complain of was objectively

severe and pervasive that a reasonable person would have found hostile or abusive.

165. Mss. Haws and Utley did find the work environment at the SJCSO to be hostile

and abusive.

166 . The unlawful conduct Plaintiffs complain of unreasonably interfered with their

work performance and duties.

167 . Plaintiffs’ decisions to not politically support and associate with Christesen’s

political campaign contributed to the formation of the hostile work environment.

168. Defendants failed to appropriately address Plaintiffs’ complaints of this hostile

work environment. Although Defendants knew about the hostile work environment Plaintiffs

reported, Defendants did nothing to remediate the environment.

169. Defendants have no legitimate, non-discriminatory reasons for engaging in the

unlawful conduct Plaintiffs complain of. Any reason put forward by Defendants is but a pretext

for unconstitutional and unlawful conduct.

170. Plaintiffs are entitled to all remedies and relief available under 42 U.S.C. § 1983,

including, but not limited to, punitive damages for the willful, malicious, wanton, and grossly

reckless acts and failures to act of the individually-named Defendants.

29




COUNT IV

42 U.S.C. § 1983

VIOLATIONS OF DUE PROCESS

FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION

171. Plaintiff hereby adopt and incorporate by reference paragraphs 1 through 170 as

set forth above.

172. Christesen and the SJCSO acted under the color of state law when they decided to

demote Mr. Wilcox.

173. The demotion of Mr. Wilcox from a lieutenant to a sergeant resulted in the loss of

pay and benefits.

174. At all times relevant hereto, Mr. Wilcox had and exercised a protected

constitutional interest in his employment with the SJCSO.

175. Constitutional due process requires that Mr. Wilcox have received a meaningful

opportunity to be heard prior to depriving him of any benefit associated with his protected

property interest in employment.

176 . Mr. Wilcox had no opportunity to participate in any process prior to the decision

being made to demote him. Indeed, the SJCSO and Christesen expressly prohibited Mr. Wilcox

from participating in any due process hearing prior to or after the demotion became effective on

April 17, 2011.

177 . Christesen, in deciding to demote Mr. Wilcox, and deprive him of his

constitutional interests, was not impartial and had stated previous to the demotion that such

would occur because Mr. Wilcox did not support him during Christesen’s election as Sheriff.

178. Christesen engaged in this unconstitutional conduct for the sole purpose of

30




unconstitutionally retaliating against Mr. Wilcox. This unconstitutional conduct extends to

prohibiting Mr. Wilcox from being promoted into other positions for which Mr. Wilcox is

eminently qualified.

179. The constitutional rights the SJCSO and Christesen deprived Mr. Wilcox of were

clearly established at the time of the deprivation and a reasonable public officer would have

known of these rights.

180. Mr. Wilcox is entitled to all remedies and relief available to him under 42 U.S.C.

§ 1983, including, but not limited to, punitive damages against Christesen for his willful, wanton,

malicious, and grossly reckless violations of Mr. Wilcox’s constitutional rights and privileges.

COUNT V

42 U.S.C. § 1983

CONSPIRACY

FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION


set forth above.

182. The individually-named Defendants became significantly involved and

intertwined in a concerted effort to unlawfully deprive Plaintiffs of their constitutionally-

protected rights. This concerted effort extends to both the pre-filing and post-filing conduct of

the individually-named Defendants.

183. These Defendants acted intentionally to cause the deprivation of Plaintiffs’

constitutional rights. By so acting, these Defendants committed unlawful acts by unlawful

means, inflicting injuries upon Plaintiffs.

184. These Defendants acted under the color of state law in conspiring against

31




Plaintiffs to deprive them of their substantive constitutional rights as set forth herein.

185. These Defendants conspired with and among themselves to cause the loss of

Plaintiffs’ constitutional rights, employment, and the furtherance of the unlawful purposes of the

conspiracy.

186 . These Defendants knew or should have known that their conspiratorial actions

violated the Plaintiffs clearly-established constitutional rights and those rights and privileges

secured by New Mexico statute, common law, and San Juan County’s and the SJCSO’s policies

and procedures.

187 . As a result of the conspiracy between the individually-named Defendants,

Plaintiffs have suffered damages and are entitled to all remedies and relief available to them

under 42 U.S.C. § 1983, including punitive damages for the willful, wanton, intentional, and

grossly reckless acts of the individually-named Defendants.

COUNT VI

NMSA 1978 §§ 10-16-1, et. seq.

VIOLATIONS OF THE NEW MEXICO GOVERNMENTAL CONDUCT ACT

188. Plaintiff hereby adopt and incorporate by reference paragraphs 1 through 187 as

set forth above.

189. Public officers are to treat their government positions as a public trust. Such

officers are not to use the power and resources of their offices to advance personal and private

interests over public interests.

190. Every public officer, including the individually-named Defendants, is prohibited

from directly or indirectly coercing or attempting to coerce another public officer or employee for

contributing anything of value to a person or party for a political purpose.

32




191. Moreover, the Governmental Conduct Act provides that threatening to deny a

promotion to an employee or advising an employee to take part in political activities in the

context of job benefits is a violation of New Mexico statute.

192. The facts here show that Christesen, Anderson, and Current engaged in gross

violations of the Governmental Conduct Act by basing employment decisions, promotional

opportunities, training opportunities, and other work-related benefits on political

patronage–including the placement of campaign signs, financial contributions to Christesen’s

campaign, the recruitment of others for Christesen’s political benefit, the holding of campaign

events, and other matters that clearly violate the Governmental Conduct Act.

193. Additionally, Plaintiffs have been threatened by the individually-named

Defendants with respect to job security, have had duties and responsibilities removed because of

political patronage issues, and have had the terms and conditions of their employment altered

because of their political beliefs and support or lack thereof for particular candidates.

194. These violations, threats, and adverse actions span the individually-named

Defendants’ conduct both before and after the filing of the Plaintiffs’ federal action.

195. As a result of these violations of the Plaintiffs have suffered damages. Plaintiffs

are entitled to all remedies and relief available to them under the Governmental Conduct Act.

COUNT VII

NEW MEXICO COMMON LAW

VIOLATIONS OF AN IMPLIED CONTRACT OF EMPLOYMENT

DEFENDANT BOARD OF COMMISSIONERS OF SAN JUAN COUNTY

196 . Plaintiffs hereby adopt and incorporate by reference paragraphs 1 through 195 as

set forth above.

33




197 . Defendant San Juan County maintained and published personnel policies and

procedures through an Employee Handbook made available to all County employees.

198. The County required and expected all employees, including Plaintiffs and the

individually-named Defendants named herein, to comply with and abide by these policies and

procedures.

199. Based upon the County’s representations regarding these policies and procedures,

Plaintiffs reasonably expected that County authorities, including the Sheriff, Undersheriff, and

the County’s HR Department would follow these policies and procedures in relation to the terms

and conditions of Plaintiffs’ employment.

200. The County’s published policies and procedures constitute an agreement, an

implied contract of employment between the parties which by the course of conduct and usage

the parties demonstrated an intent to be bound.

201. This implied contract, per the County’s policies and procedures, provided, among

other things: (1) that cause would be needed to discipline Plaintiffs in any fashion; (2) that San

Juan County employees were prohibited from campaigning for political office during regular

work hours; (3) that employees could not be coerced into campaigning for an elected official to

ensure continued employment; (4) that all employees were required to abide by the

Governmental Conduct Act; (5) that performance evaluations will occur on and about the

employee’s anniversary date; (6) that a failure to conduct timely performance evaluations would

result in a presumption that the employee’s performance was satisfactory and that the employee

merited a step increase, if applicable; (7) that employees would enjoy a harassment-free

workplace; (8) that an employee who believes he or she is being harassed or discriminated

against has a right to file a formal charge with the County’s Chief HR Officer; (9) that any charge

34




of harassment and/or discrimination will be promptly investigated and a written report prepared;

(10) that the County prohibits retaliation against employees who submit harassment complaints;

(11) that the County will encourage training opportunities for employees; (12) that the County

will ensure that promotion, demotions, and other employment-related matters will be fair and

non-discriminatory; (13) that the County adheres to a progressive disciplinary action policy; (14)

that County employees have adequate information regarding job performance prior to

disciplinary action being meted out; (15) that an employee can only be demoted for a serious

offense, a repeated minor offense, or for unsatisfactory performance or behavior that the

employee is unable or unwilling to correct; and (16) that all employees have rights to grieve

deprivations of rights.

202. The County breached each and every one of the policy requirements set forth in

paragraph 201, among others, in dealing with and deciding the terms and conditions of Plaintiff’s

employment.

203. As a result of these breaches, Plaintiffs have suffered damages.

204. Plaintiffs are entitled to all remedies and relief available to them under New

Mexico law for these breaches of the implied contract of employment.

COUNT VIII

VIOLATIONS OF TITLE VII

GENDER DISCRIMINATION

205. Plaintiffs hereby adopt and incorporate by reference paragraphs 1 through 204

as set forth above.

206. Mss. Haws and Utley are females.

207. During the period of her employment with the SJCSO, Ms. Utley sought a job

35




promotion for which she was eminently qualified.

208. In addition to her qualifications by education and experience, Ms. Utley has

shown to Defendant SJCSO during the course of her employment that she is able to perform any

assigned duties in at least a satisfactory manner.

209. Despite her qualifications and Defendant’s recognition that Ms. Utley was

qualified for the promotion at issue, Defendant SJCSO awarded the promotion to a lesser-

qualified male.

210. Defendant SJCSO has no legitimate, non-discriminatory business reason for not

having promoted Ms. Utley into the position sought of Office Manager.

211. Furthermore, Defendant SJCSO has repeatedly denied Ms. Haws the opportunity

to attend trainings that were important in both the promotion and performance of her law

enforcement career.

212. Less-qualified males of lesser rank were permitted by Christesen and the SJCSO

to attend these trainings, although those conducting these trainings specifically requested to the

SJCSO that Ms. Haws be permitted to attend these trainings.

213. Defendant SJCSO has no legitimate, non-discriminatory business reason for not

allowing Ms. Utley to be promoted or permitting Ms. Haws to attend trainings.

211. Any reason Defendant SJCSO may put forth is but a pretext for unlawful gender

discrimination.

212. Defendant SJCSO violated the provisions of Title VII by unlawfully discriminating

against Plaintiffs Haws and Utley.

213. Plaintiffs Haws and Utley are entitled to all remedies and relief available to them

under the provisions of Title VII.

36




COUNT IX

VIOLATIONS OF TITLE VII

HOSTILE WORK ENVIRONMENT


as set forth above.

215. Mss. Haws and Utley are females.

216. During the period of time Plaintiffs Haws and Utley have sought rights and

privileges related to their workplace environment, Mss. Haws and Utley have been subjected to

hostile and intimidating behavior from employees of Defendant SJCSO, including the

individually-named Defendants, in the form of refusal to speak with them, isolation of the woman

in the workplace, threatening behavior, false and contrived charges of misconduct, the

application of disparate work rules, the denial of promotions and trainings, and the creation of a

hostile work environment.

217. The hostile conduct complained of has pervaded the workplace of Plaintiffs Haws

and Utley for a significant period of time.

218. Although both Mss. Haws and Utley communicated the hostile behavior

complained of, Defendant SJCSO did nothing to remedy the workplace hostility. In the end, the

supervisors of Mss. Haws and Utley and the SJCSO’s management decided to ignore the

complaints of the two woman.

219. Defendant SJCSO’s acts and failures to act violated the standards of Title VII

with respect to remedying a hostile work environment founded in discriminatory acts.

220. The hostile work environment complained of by Mss. Haws and Utley was

sufficiently severe and pervasive to alter the terms and conditions of the Plaintiffs’ employment.

37




221. Defendant SJCSO knew, or should have known, that the behavior reported by

Mss. Haws and Utley constituted a hostile work environment.

222. Because Anderson and Christesen were the direct and indirect supervisors of

Mss. Haws and Utley during the period relevant to their hostile work environment claims and the

principal causes of the hostile work environment complained of, Defendant SJCSO is subject to

direct liability on the Plaintiffs’ claims of hostile work environment.

223. Defendant SJCSO violated Mss. Haws and Utley’s federally-protected civil rights

under Title VII by subjecting them to a hostile work environment.

224. Plaintiffs Haws and Utley are entitled to all remedies and relief available to them

under Title VII for the hostile work environment complained of.

COUNT X

CONSTRUCTIVE DISCHARGE

NEW MEXICO COMMON LAW


as set forth above.

226. The working conditions of Plaintiffs Utley became intolerable following the filing

of the original Complaint.

227. Shortly prior to Mr. Utley’s early, involuntary retirement and Ms. Utley’s

involuntary resignation, Defendants SJCSO, Christesen, and Anderson subjected them to the

following employment actions: (1) an effective demotion in Mr. Utley’s supervisory activities; (2)

a hostile, harassing work environment for both of the Utleys; (3) retaliatory and adverse

employment actions, some of which included discriminatory acts; (4) threat of firing in the case

of Mr. Utley; (5) unwarranted and unjustifiable investigations into arbitrary allegations of

38




misconduct on the part of both the Utleys for the purpose of effectuating their involuntary

removal from the SJCSO; (6) overt pressure on Mr. Utley to accept an early retirement; and (7)

the removal of significant job duties for the purpose of isolating the Utleys in the work

environment.

228. An objective, reasonable employee in both of the Utley’s circumstances,

especially in the face of deteriorating health related to these adverse actions, would be

compelled to resign their employment.

229. Mr. Utley retired early solely because of the matters set forth in paragraph 227

and the threat that the SJCSO would not relent in its campaign to get Mr. Utley out of the SJCSO

workplace.

230. Ms. Utley involuntarily resigned because of the matters set forth in paragraph

227 and the threat that the SJCSO would not relent in its campaign to get Ms. Utley out of the

workplace.

III. DAMAGES AND PRAYER FOR RELIEF


set forth above.

232. Plaintiffs seek damages for past lost wages and benefits, where appropriate.

233. Plaintiffs seek damages for future lost wages and benefits, where appropriate.

234. Plaintiffs seek damages for mental, emotional, and psychological distress.

235. Plaintiffs seek pre- and post-judgment interest.

236 . Plaintiffs seeks attorney’s fees and costs, as allowable by law, statute, or rule.

237 . Plaintiffs seek punitive damages against the individually-named Defendants for

their intentional, willful, wanton, and grossly reckless conduct.

39




WHEREFORE Plaintiffs pray this Court enter judgment in their favor, award the

damages sought herein, and such further relief the Court deems just and appropriate under the

circumstances.

Respectfully submitted,

/s/Michael E. Mozes

LAW OFFICES OF MICHAEL E. MOZES, P.C.

Attorney for Plaintiffs

5732 Osuna Road NE

Albuquerque, NM 87109-2527

(505) 880-1200

(505) 881-2444

I HEREBY CERTIFY that a copy of the foregoing pleading was served on all counsel of

record via e-mail on this 29th day of September, 2014.

/s/ Michael E. Mozes

MICHAEL E. MOZES


amended complaint in lawsuit against san juan county sheriff's office

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