# Walton v. New Mexico State Land Office

> District Court, D. New Mexico · September 12, 2014 · 49 F. Supp. 3d 920

URL: https://www.frixlaw.com/law-library/cases/7226897

## Case

- **Full name:** Peggy WALTON v. NEW MEXICO STATE LAND OFFICE, Ray Powell, Donald Britt and Delma Bearden
- **Court:** District Court, D. New Mexico
- **Decided:** September 12, 2014
- **Citations:** 49 F. Supp. 3d 920; 2014 U.S. Dist. LEXIS 136541; 2014 WL 4823841
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
1
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court: on (i) the Defendants’ Motion for Summary Judgment on Plaintiffs Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights, filed November 6, 2013 (Doc. 38)(“MSJ”); and (ii) the Motion for Summary Judgment of Defendants’ Ray Powell, David Britt and Delma Bearden as to Count VI of the Second Amended Complaint on Grounds of Qualified Immunity, filed November 27, *924 2013 (Doc. 52)(“MSJ QI”). The Court held hearings on April 9, 2014, and April 10, 2014. The primary issues are; (i) whether Plaintiff Peggy Walton was engaged in a protected activity to warrant protection under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and under the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-7 (“NMHRA”); ' (ii) whether a reasonable jury could find that there is a causal connection between the adverse action taken against Walton and her engagement in the protected activity; (iii) whether Walton’s complaints to Donald Britt (“Britt”) constituted a disclosure of a protected disclosure under both the New Mexico Whistleblower Protection ' Act, N.M. Stat. Ann. § 10 -16C-1 (‘WPA”); (iv) whether adverse action was taken against Walton because of this protected disclosure; (v) whether a reasonable jury could find that Walton’s political affiliations were a substantial or motivating factor in her termination; (vi) whether there was a violation of Walton’s rights under the First and Fourteenth Amendments to the Constitution of the United States of America; and (vii) whether the termination of an employee because of her affiliation with a prior administration is clearly established under Tenth Circuit and Supreme Court precedent. The Court will grant the MSJ as it pertains to Walton’s Title VII and NMHRA retaliation claims, because Walton has not presented evidence establishing a causal connection between her engagement in a protected activity—reporting Delma Bearden’s (“Bearden”) alleged misconduct—and the adverse action taken against Walton—her termination. Additionally, the Court will grant the MSJ as it pertains to Walton’s WPA claim, because Walton has failed to produce evidence establishing a connection between her protected disclosure and the adverse action taken against her. The Court will deny the MSJ, however, as it pertains to Walton’s Section 1983 claim for violations of Plaintiffs constitutional rights under the First and Fourteenth Amendments. Additionálly, the Court will deny the QI MSJ in its entirety.
FACTUAL BACKGROUND
From January,' 1988, to December 4, 2001, Walton was employed at the Miner’s Colfax Medical Center in Raton, New Mexico, and during her time at the Miner’s Colfax Medical Center, Walton became acquainted with Patrick Lyons, who was at that time a Republican New Mexican state senator. See Plaintiffs Response to Defendants’ Motion for Summary Judgment ¶ 2, at 2, filed December 19, 2013 (Doc. 55)(“Response”)(setting forth this fact); Affidavit of Peggy Walton ¶ 3, at 1, filed December 19, 2013 (Doc. 55-l)(‘Walton Aff.”); Defendants’ Response to Plaintiffs Additional Relevant Evidence (“Are”) ¶ 2, at 1, filed January 17, 2014 (Doc. 59-l)(“Defendants’ Response”)(not disputing this fact). 2 Walton “has been registered to *925 vote as a Republican since approximately 1980.” Response ¶ 1, at 2 (setting forth this fact). See Walton Aff. ¶ 3, at 1; Defendants’ Response, ¶ 1, at 1 (not disputing this fact). Lyons was elected to serve as the New Mexico Land Commissioner (“Land Commissioner”) for a term beginning on January 1, 2007. See Response ¶ 3, at 2-3 (setting forth this fact); Walton Aff. ¶ 4, at 2. 3
After Lyons was elected, Walton applied for employment at the New Mexico State Land Office (“Land Office”) several times, but did not receive a response. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶4, at 2; Defendants’ Response ¶ 3, at 1 (not disputing this fact). In January, 2008, Walton told Lyons that she had been applying for positions at the Land Office and that she had not received a response. See Response ¶ 3, at 3 (set-: ting forth this fact); Walton Aff. ¶ 4, at 2; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Walton then asked Lyons whether there were any open position for which she was qualified, and Lyons informed Walton that there were open positions and that she should keepi applying. See Response ¶ 3, at 3 (setting forth this fact); Walton Aff. ¶ 4, at 2; Defendants’ Response ¶ 3, at 1 (not disputing this fact). On June 18, 2008, Walton applied for a classified position at the Land Office. See Response ¶ 4, at 3 (setting forth this fact); Walton Aff. ¶ 5, at 2; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Walton was not offered a classified position, however, but instead was offered an exempt Secretary II position, which she accepted, and she began work on August 25, 2008. See Response ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 3, at 4 (also setting forth this fact); Walton Aff. ¶¶ 5-6; Defendants’ Response ¶ 4, at 1 (not disputing this fact). Tin exempt employee serves at the will of the agency head and does not have the protections afforded to classified employees under the State Personnel Act, N.M. Stat. Ann. § 10-9-4 (D)(exempting *926 certain government positions from the protections of the Personnel Act). See Response ¶ 15, at 7 (setting forth this fact); Deposition of Sandra Lopez at 18:9-20:13 (taken December 4, 2013), filed December 19, 2013 (Doc. 55-6)(“Plaintiffs Lopez Depo.”); 4 Deposition of Ray Powell at 38:8-39:23 (taken November 26, 2013), filed December 19, 2013 (Doc. 55-5)(“Pow-ell Depo.”); Defendants’ Response, ¶ 15, at 4 (not disputing this fact). Exempt positions exist so that the agency head has the ability to hire people whom the agency head believes are going to assist in implementing the agency head’s policies. See Response ¶ 15, at 7 (setting forth this fact); Plaintiffs Lopez Depo. at 19:9-19:13; Defendants’ Response, ¶ 15, at 4 (not disputing this fact). The Land Commissioner after Lyons—Ray Powell—who had also served as Land Commissioner before Lyons, understands that, historically in the Land Office, exempt employees serve under one elected official and then leave office, and the new elected official has the opportunity to appoint new people into that position. See Response ¶ 15, at 7 (setting forth this fact); Powell Depo. at 38:21-39:8; Defendants’ Response, ¶ 15, at 4 (not disputing this fact). 5
*927 Walton’s first job assignment at the Land Office involved working in the Commercial Resources Division as a special projects coordinator and lease analyst. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2; Defendants’ Response ¶ 5, at 1 (not disputing this fact). On or about October 22, 2008, Walton accepted the position of director of the commercial leasing section of the Commercial Resources Division, and as director of the commercial leasing section, Walton supervised the lease analysts, including Bear-den, who was an employee whom the first Powell administration had hired. See Response ¶ 5, at 3 (setting forth this fact); Walton Aff. ¶ 7, at 2-3; Defendants’ Response ¶ 5, at 1 (not disputing this fact).
In early 2009, Lyons instructed Sandra Lopez, the Land Office’s Human Resources Manager, to transfer Walton from the exempt Secretary II position to the only vacant classified position in the Commercial Resources Division, which was an Economist A position. See Response ¶ 6, at 3^4 (setting forth this fact); Walton Aff. ¶ 8, at 3; Defendants’ Response ¶ 6, at 1-2 (not disputing this fact). Lyons also instructed Lopez to reclassify that Economist A position to a General Manager I position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶8, at 3; Defendants’ Response ¶ 6, at 3-4 (not disputing this fact). Walton did not have the credentials to fill the Economist A position; however, Walton was qualified to serve in a General Manager I position, and Walton told Lopez at this time that she was not qualified to serve in the Economist A position. See Response ¶ 6, at 3-4 (setting forth this fact); Walton Aff. ¶ 8, at 3. 6
After the Land Office transferred Walton to the Economist A position, Lopez refused to initiate the paperwork with the State Personnel Office to reclassify the Economist A position to a General Manager I position; after Lopez repeatedly refused to initiate the paperwork for over a year, Lyons directed Walton to bypass Lopez and work directly with the State Personnel office to accomplish the reclassification, which Walton did. See Response ¶ 7, at 4 (setting forth this fact); Walton Aff. ¶ 9, at 3. 7 Lopez later told Elaine Olah that *928 she thought the reclassifying of Walton’s Economist A position to a General Manager I position was improper. See Evidence in Opposition to Defendants’ Statement of Alleged Undisputed Material Facts ¶ 9, at 2 (Doc. 55-8)(“Evidence in Opposition”); 8 Deposition of Loretta Elaine Olah at 54:24-58:7 (taken October 2, 2013), filed November 6, 2013 (Doc. 38-l)(“01ah Depo.”). 9
*929 The reclassification was approved effective September 8, 2010, and Walton continued to serve as the director of the commercial leasing section of the Commercial Resources Division. See Response ¶ 7, at 4 (setting forth this fact); MSJ (QI) ¶ 6, at 4 (also setting forth this fact); Walton Aff. ¶ 9, at 8; Defendants’ Response ¶ 7, at 2 (not disputing this fact). According to the position assignment documentation form, which describes the General Manager I position, Walton’s responsibilities included management of employees in the Land Office’s Commercial Resources Division, including “decisions to eorrect/discipline staff if unwilling to perform their duties ethically, professionally, and in a non-hostile manner,” and the most challenging aspect of the General Manager I position was the “correction of inappropriate staff behaviors.” MSJ (QI) ¶ 11, at 5. See First Lopez Aff. ¶ 6, at 2-3. 10 On Walton’s manager evaluation form, which was completed on February 22, 2011, one area of evaluation is the management of the Land Office’s Commercial Resources Division staff by, among other things, establishing standards of performance and preparing employee evaluations. See MSJ (QI) ¶ 12, at 6; First Lopez Aff. ¶ 7, at 3. 11
Lyons served as Land Commissioner for two terms, the second of which expired on December 31, 2010, and did not run for reelection. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). Powell, a Democrat who had served as Land Commissioner immediately before Lyons’ first term, defeated the Republican candidate for Land Commissioner, Matthew Rush, in the November 2, 2010, general election. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). The campaign for Land Commissioner was contentious, and, during the campaign, Powell repeatedly attacked Lyons’ record, and accused Lyons of engaging in unethical conduct and mismanaging State trust lands. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4; Defendants’ Response ¶ 8, at 2 (not disputing this fact). Lyons publicly stated that Rush would continue the same policies as Lyons if Rush- were elected. See Response ¶ 8, at 4 (setting forth this fact); Walton Aff. ¶ 10, at 4. 12
During the summer and fall of 2010, Walton attended a number of Republican campaign events, including rallies for Susana Martinez—a Republican running for. Governor—which Rush also attended. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, at 2 (not disputing this fact). Walton also attended a campaign event for Rush at Rancho de Chimayo restaurant in Española. See Response ¶ 9, at 4 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, at 2 (not disputing this fact). Walton traveled to the Rush campaign event with Lyons and other Land Office employees. See Response ¶ 9, at 4-5 (setting forth this fact); Walton Aff. ¶ 11, at 4; Defendants’ Response ¶ 9, *930 at 2 (not disputing this fact). Land Office employees, including Lopez, knew of Walton’s support of Lyons and the Republican Party. See Response ¶ 9, at 5 (setting forth this fact); Walton Aff. ¶ 11, at 4. 13 On the wall in her office, Walton had a photograph of herself and Governor Martinez, and a photograph of Lyons with a personal note from Lyons to Walton, and during the fall of 2010, Walton observed Lopez study-' ing those photographs. See Response ¶ 9, at 5 (setting forth this fact); Walton Aff. ¶ 10, at 4. 14
In the November, 2010, general election, Walton voted for Rush, yet, Powell ended up winning the election. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants’ Response ¶ 10, at 2 (not disputing this fact). The day after the election, Walton told Bearden that she had voted for Rush, and Bearden told Walton that she had voted for Powell. See Response ¶ 10, at 5 (setting forth this fact); Walton Aff. ¶ 12, at 4; Defendants’ Response ¶ 10, at 2 (not disputing this fact). On or about November 17, 2010, *931 Mark Corley, an associate of KRQE investigative reporter Larry Barker, approached Walton at the back entrance to the Land Office building when Walton arrived at work. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 4-5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Corley informed Walton that Walton’s personal human resources information had become known to him, and he interviewed Walton by asking her questions about the circumstances of her hiring, her transfer from the exempt Secretary II position to the classified Economist A position, and the reclassification of the Economist A position to the General Manager I position. See Response ¶ 11, at 5 (setting forth this fact); Walton’s Aff. ¶ 13, at 5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Walton believed, from the context of the interview, that KRQE intended to portray these events in a negative light. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 5; Defendants’ Response ¶ 11, at 3 (not disputing this fact). Walton also believed that the Human Resources Manager, Lopez, had collaborated with others to furnish Walton’s personal employment information to KRQE. See Response ¶ 11, at 5 (setting forth this fact); Walton Aff. ¶ 13, at 5. 15 Lopez did help provide Walton’s employment information to KRQE by assisting the Land Office in responding to an Inspection of Public Records Act Request from KRQE television that asked for Walton’s personnel file. See Defendants’ Response ¶ 11, at 3 (asserting this fact); Deposition of Sandra Lopez at 82:12-84:21 (taken December 4, 2013), filed January 17, 2014 (Doc. 59-3)(“Defendants’ Lopez Depo.”). 16
*932 On or about November 18, 2010, Walton telephoned Powell to inform him about the interview with Corley. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). Walton wanted Powell to know that KRQE was going to broadcast a negative story about Walton and the Land Office. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). On November 21 or 22, 2011, Powell, along with Harry Rel-kin, an attorney whom Powell hired to serve as general counsel to the Land Office, returned Walton’s telephone call. See Response ¶ 12, at 5 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). During the telephone conversation, Walton informed Powell and Relkin about the circumstances of her hiring, her transfer to the Economist A position, Lyons’ directions to Lopez to reclassify the Economist A position to the General Manager I position, and Lopez’ refusal to follow Lyons’ directions. See Response ¶ 12, at 5-6 (setting forth this fact); Walton Aff. ¶ 14, at 5; Defendants’ Response ¶ 12, at 3 (not disputing this fact). 17
KRQE television broadcast the Barker investigative report on November 23, 2010, and the report was titled: “Cronies move up as officials move out.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 15-16, at 5; Defendants’ Response ¶ 13, at 3 (not disputing this fact). Anchor reporter Dick Knipfing introduced the news segment by saying, among other things, that Walton was “distinctly unqualified” for her position and that her hiring was “rigged.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 16, at 6. 18 Barker began his report with the statement: “Meet State Land Office employee Peggy Walton. How she went from low-level political appointee to high-level division manager in two short years is a fascinating case study in abuse of power.” See Response ¶ 13, at 6 (setting forth this fact); Walton Aff. ¶ 16, at 6. 19 Barker went on to report that the Lyons administration hired Walton as an exempt position and then moved into the classified service before the election—but did so in a misleading and inaccurate manner; he also described the circumstances of Walton’s hiring and the sequence of events that led to her being placed in the General Manager I position. See Response ¶ 13, at 6 (setting forth this fact); Walton Aff. ¶ 16, at 6. 20 State Personnel Office Director, Sandra Perez, who had approved the Economist A to General Manager I reclassification, was interviewed during the Barker report, but Perez deferred to Lyons for an explanation about the reclassification; the report ended with Knipfing stating: “Governor-elect Susana Martinez *933 has promised to fire any political appointee who has been improperly shifted into a classified job.... New Land Commissioner Ray Powell will inherit Walton. It is not clear whether her job is protected.” Response ¶ 13, at 6 (setting forth this fact). See Walton Aff. ¶ 16, at 6. 21
Powell watched the Barker investigative report online within a few days after KRQE broadcast the report. See Response ¶ 14, at 6-7 (setting forth this fact); Powell Depo. at 55:6-55:15; Defendants’ Response ¶ 14, at 3-4 (not disputing this fact). Powell considers Barker to be the “gold standard” in investigative reporting; he believes that Barker’s reports are “thorough and vetted.” Response ¶ 14, at 7. See Powell Depo. at 49:24-50:6; id. at 57:7-57:13 . 22 At the time he had no reason to disbelieve what Barker said about Walton, and he understood that the gist “from the report” was that Lyons had hired Walton in an exempt position and then transferred her into a classified economist position. See Response ¶ 14, at 7 (setting forth this fact); Powell Depo. at 58:1-58:12; id. at 60:6-60:12 . 23
Powell took office as Land Commissioner on January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6; Defendants’ Response, ¶ 16, at 4 (not disputing this fact). Powell brought in a number of exempt employees, who replaced the exempt employees from the Lyons administration who resigned effective January 1, 2011. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants’ Response, ¶ 16, at 4 (not disputing this fact). These new Land Office employees included Robert Jenks, who served as Deputy Commissioner and reported to Powell; Relkin, who served as Chief Legal Counsel and reported to Jenks; Defendant Donald Britt, who served as Assistant Commissioner over the Commercial Resources Division and reported to Jenks; and Elaine Olah, who served as Assistant Commissioner over the Administrative Services Division and reported to Jenks. See Response ¶ 16, at 7 (setting forth this fact); Walton Aff. ¶ 17, at 6-7; Defendants’ Response, ¶ 16, .at 4 (not disputing this fact).
On January 3, 2011, which was Walton’s first day in the office in 2011, Powell placed a note on the door to Walton’s office that said: “This office is reserved for Donald Britt.” Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7; Defendants’ Response, ¶ 17, at 4 (not disputing this fact). Britt had worked in the first Powell administration, and Powell hired Britt to also serve in. the Second Powell administration as an exempt employee. See Response ¶ 17, at 8 (setting forth this fact); Walton Aff. ¶ 18, at 7. 24 Powell was the person who placed the note on the door to Walton’s office before staff arrived to work on January 3, 2011. See Response ¶ 17, at 8; Powell Depo. at 63:2-63:25. 25 Powell placed notes on office *934 doors for every exempt employee, and he did not know, at that time, that the office he assigned to Britt was Walton’s office. See Defendants’ Response ¶ 17, at 4 (setting forth this fact); Powell Depo. at 63:2-64:11. 26
On January 3 or 4, 2011, Powell met with the Commercial Resources Division staff, along with Jenks and Britt. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants’ Response ¶ 18, at 4 (not disputing this fact). During the meeting, Powell expressed his opinion that the stewardship and leasing of State Trust Lands under the Lyons administration had not been handled properly, and he stated there would be federal investigations to find out who was involved; Powell stated that “men in suits with guns” were going to come to the office and implied that those “men in suits with guns” would arrest anyone involved in any wrongdoing. See Response ¶ 18, at 8 (setting forth this fact); Walton Aff. ¶ 19, at 7; Defendants’ Response ¶ 18, at 4 (not disputing this fact). On January 24, 2011, Britt and Bearden accused Walton of illegally administering a land sale that had closed during Lyons’ term in the latter part of December 2010. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7. 27
Because Powell had made threatening remarks during the January 4, 2011, meeting about alleged illegal conduct in the Lyons administration, and because Britt had been making comments to Walton about alleged illegal conduct in the Lyons administration, Walton asked her attorney, Linda Hemphill, to contact Powell regarding Walton’s concerns that Walton was being mistreated because of her previous association with the Lyons administration. See Response ¶ 19, at 8 (setting forth this fact); Walton Aff. ¶ 20, at 7-8. 28 On January 27, 2011, Hemphill delivered a letter to Powell, which laid out Walton’s affiliation with Lyons going back to Walton’s employment at Miners’ Colfax Medical Center, the circumstances of Walton’s hiring and promotion during the Lyons administration, and Walton’s belief that Lopez had *935 inappropriately provided Walton’s confidential personnel information to KRQE news. See Response ¶ 20, at 8-9 (setting forth this fact); Walton Aff. ¶ 21, at 8; Defendants’ Response ¶20, at 5 (not disputing this fact). 29 Hemphill, on Walton’s behalf, asked Powell to admonish his staff that harassment of Walton because of her association with Lyons would be illegal. See Response ¶ 20, at 9 (setting forth this fact); Walton Aff. ¶ 21, at 8; Defendants’ Response ¶ 20, at 5 (not disputing this fact). Powell does not remember taking any action to address the concerns that Hemphill’s letter raised, see Response ¶ 20, at 9 (setting forth this fact); Powell Depo. at 68:3-69:4; Defendants’ Response ¶ 20, at 5 (not disputing this fact), although Powell’s ordinary course of business would be to provide a copy of the letter to Lopez’ supervisors, including Olah and Jenks, see Response ¶ 21, at 9 (setting forth this fact); Powell Depo. at 72:ll-73:3. 30
At a February 8, 2011, Commercial Resources Division meeting, there were ques *936 tions about two leases administered during the Lyons administration. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8; Defendants’ Response ¶ 22, at 5 (not disputing this fact). 31 Bearden pointed two fingers at two female Hispanic, Republican Land Office employees in an accusing manner and said, “you two girls worked in the front office” with Lyons, and implied that the two employees knew of improper handling of the leases. Response ¶22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8. 32 Walton reported Bearden’s conduct to Britt, because she felt that the conduct was inappropriate harassment. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 22, at 8. 33
On or about February 9, 2011, Walton was told to attend the Assistant Commissioners’ meeting. See Response ¶ 22, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8; Defendants’ Response ¶ 23, at 6 (not disputing this fact). Before February 9, 2011, Powell, Britt, or Jenks never asked Walton to attend an Assistant Commissioners meeting. See Response ¶ 23, at 9 (setting forth this fact); Walton Aff. ¶ 23, at 8. 34 During the meeting, Walton reported about a request she had received for leasing acreage, and while she gave her report, Relkin rolled his eyes and exchanged glances with Powell. See Response ¶ 22, at 9-10 (setting forth this fact); Walton Aff. ¶ 23, at 8-9. 35 On Feb *937 ruary 16, 2011, Walton was called into a meeting with Powell; Relkin, Jenks, Olah, Britt, Lopez, and Amy Atchley all attended the meeting. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. 36 The meeting’s purpose was to inform Walton that Atchley was being moved from the Legal Division back to the Commercial Resources Division, where Walton would supervise her. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9; Defendants’ Response ¶ 24, at 6 (not disputing this fact). Walton was not given a reason for the transfer, and the transfer was a surprise to Walton; Atchley served during the Lyons administration and had been transferred from the Commercial Resources Division to the Legal Division, because she had been disruptive in the Commercial Resources Division. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. 37 During the Lyons administration, Walton had written up Atchley for performance and misconduct on several occasions. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. 38 During the Lyons administration, Atchley and a former Land Office employee spread a false rumor that Lyons and Walton were involved in a romantic relationship, and Walton reported to Lopez that Atchley had spread the false rumor. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶ 24, at 9. 39 During the February 16, 2011, meeting, Lopez and Jenks smirked at Walton throughout the meeting. See Response ¶ 24, at 10 (setting forth this fact); Walton Aff. ¶24, at 9. 40
On or about February 18, 2011, Walton went to lunch with Lyons and expressed her concerns to Lyons about the allegations that a land sale that Walton had administered was illegal; there were other Land Office employees in the same restaurant. See Response ¶25, at 10 (setting forth this fact); Walton Aff. ¶ 25, at 9. 41 Shortly after that lunch, Assistant Commissioner Ralph Gallegos informed Walton that Powell does not believe in going to lunch with his employees, which Walton believed to mean that Powell was aware that Walton had gone to lunch with Lyons. See Response ¶ 25, at 10 (setting forth this *938 fact); Walton Aff. ¶ 25, at 9-10. 42
In January, February, and March, 2011, Britt made several comments to Walton, in which Britt referred to Lyons, including, among other things, several times saying “have you seen Pat?” or “how’s your buddy Pat.” See Response ¶26, at 10 (setting forth this fact); Walton Aff. ¶ 26, at 10. 43 Related to those comments, on or about February 22, 2011, Britt told Walton “no one in the Land Office respects you,” and on or about February 24, 2011, Britt told Walton about a meeting that Powell and others had with Barker, and taunted Walton by referring to Barker as “your friend Larry.” Response ¶ 26, at 10-11 (setting forth this fact); Walton Aff. ¶ 26, at 10. 44
In January, February, March, and April, 2011, Bearden became insubordinate and hostile towards Walton. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. 45 Britt moved Bearden’s office next to his and began to direct Bear-den’s work, and although Walton continued to supervise some aspects of Bearden’s work, Britt became Bearden’s primary supervisor. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. 46 Walton remained Bearden’s supervisor, and Bearden reported directly to Walton. See MSJ ¶ 25, at 7 (setting forth this fact); Deposition of Peggy Walton at 79:16-80:12 (taken September 17, 2013), filed November 6, 2013 (Doc. 38-3)(“Walton Depo.”). 47
*939 Walton observed that Bearden and Britt had a very close relationship, and often met behind closed doors. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. 48 During that same time frame, Bearden made derogatory comments of a sexual and racial nature, which Walton believed were inappropriate and violated Land Office policies. See Response ¶ 27, at 11 (setting forth this fact); Walton Aff. ¶ 27, at 10. 49
The only specific reference by Bearden regarding Walton’s gender arose from a single circumstance where Bearden stated that she believed that a “man” was needed to deal with one specific client in one specific instance. MSJ ¶20, at 6 (setting forth this fact); Walton Depo. at 87:12-88:23. 50 No comments were ever made, however, by anyone in a position superior to Walton, that a male was needed to fill her General Manager I position. See MSJ ¶ 21, at 6 (setting forth this fact); Walton Depo. at 84:24-83:9; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Additionally, Bearden’s statements were made in Walton’s presence, but were not directed at Walton. See MSJ ¶ 22, at 6 (setting forth this fact); Walton Depo. at 94:11-101:4; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). 51
*940 The Land Office had a non-harassment policy in effect from April, 2004, through March, 2013, which contained a provision that stated that “if any employee believed that she had been subjected to harassment on the basis of race, gender, or certain other classifications, she was required to inform her supervisor or some other designated NMSLO personnel.” MSJ (QI) ¶ 13, at 6. See First Lopez Aff. ¶ 8, at 3. 52 On numerous occasions in February, March, and April, 2011, Walton verbally reported her concerns about Bearden’s conduct to Britt. See Response ¶ 28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10; Defendants’ Response ¶ 28, at 7 (not disputing this fact). On April 7 and 8, 2011, Walton sent Britt electronic mail transmissions in which Walton raised some of her concerns about Bearden’s misconduct. See Response ¶28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10. 53 Britt did not respond to Walton’s electronic mail transmissions, and, to Walton’s knowledge, took no action against Bearden to address Walton’s concerns. See Response ¶ 28, at 11 (setting forth this fact); Walton Aff. ¶ 28, at 10. 54
On April 14, 2011, Walton attended a meeting of the State Trust Lands Advisory Board, which assists the Land Commissioner in the formation of policies and programs for the trust. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at 10-11; Defendants’ Response ¶ 29, at 7 (not disputing this fact). The meeting started at 10:00 a.m., but Britt directed Walton to appear at 10:30 a.m.; when Walton arrived, the meeting was already underway, with the Board members, Powell, Britt, Olah, and other Land Office employees already seated. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. *941 ¶ 29, at ll. 55 The only available seat, where Walton sat, was directly across a conference room table from Powell. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 29, at 11. During the meeting, Powell addressed the Board, and during his presentation, Powell referred to the Barker report and then followed up by stating that he was concerned about employees in inappropriate roles, who were “protected” employees; Powell then stated that the “protected” employees, “for some reason[,] didn’t have to meet the leadership criteria within the division, and somehow got directions from the front office.” See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 30, at ll. 56 Although Powell did not mention Walton by name, Powell was glaring directly at Walton in a threatening and serious manner when he made those remarks. See Response ¶ 29, at 11 (setting forth this fact); Walton Aff. ¶ 30, at ll. 57 Powell was, however, refer *942 ring to two other employees within the Land Office and not Walton when he referred to “protected employees” at the meeting. See Defendants’ Response ¶ 29, at 7-8 (setting forth this fact); Powell Depo. at 100:11-101-14. 58
Throughout April, 2011, Bearden’s conduct escalated, and she frequently made comments, which Walton believed were sexually or racially inappropriate; the comments made Walton uncomfortable, and she believed that the comments were improper and could subject the Land Office to liability for creating a sexually or racially hostile work environment. See Response ¶ 31, at 8 (setting forth this fact); Walton Aff. ¶ 31, at 11-12. 59 When Walton verbally addressed Bearden’s behavior to Bearden as these incidents would occur, Bearden became more contentious and accusatory, and Bearden repeatedly justified her behavior and comments to Walton by saying, “I have worked with this administration before,” referring to her employment in the first Powell administration. See Response ¶ 31, at 12 (setting forth this fact); Walton Aff. ¶ 31, at 12. 60
By memoranda to Britt dated April 29 and April 30, 2011, Walton described Bear-den’s inappropriate conduct, which Walton believed constituted illegal sexual, racial, and religious harassment. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Walton Depo. at 77:10-78:15; Britt Depo. at 76:25-77:17; Defendants’ Response ¶32, at 8 (not disputing this fact); MSJ ¶ 27 (also setting forth this fact). Walton delivered those memoranda to Britt on May 6, 2011. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12; Defendants’ Response ¶ 32, at 8 (not disputing this fact). 61 Wal *943 ton reported her concerns to Britt, because the Land Office’s harassment policy provides that a report of harassment can be made to an employee’s supervisor. See Response ¶ 32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12. 62 After receiving the memoranda from Walton, Britt passed them onto Lopez. See Evidence in Opposition ¶ 29 at 5 (setting for this fact); Powell Depo. at 84:10-87:8. 63 Lopez chose, however, not to investigate the allegations against Bearden in spite of the Land Office’s Policy, which requires an investigation whenever a complaint of discriminatory conduct is alleged. See Evidence in Opposition ¶29, at 5 (asserting this fact); Plaintiffs Lopez Depo. at 121:22-123:10; id. at 125:13-126:9 ; id. at 127:24-133:13 . 64 Following Walton’s reports to Britt, Bearden continued to make inappropriate comments of a sexual and racial nature. See Response ¶32, at 12 (setting forth this fact); Walton Aff. ¶ 32, at 12. 65 Other than these ■ memoranda, which Walton delivered to Britt, Walton never prepared a formal written statement or report concerning Bearden’s behavior, never reported Bearden in any way up the chain of command to Powell, and never reported Bearden to Lopez. See MSJ ¶ 28, at 7 (setting forth this fact); Walton Depo. at 102:10-103:5. 66
*944 From February, 2011, through the end of her employment, Walton attended weekly leadership meetings, that Powell and Jenks headed; various other Land Office management employees also attended the meetings. See Response ¶ 33, at 13 (setting forth this fact); Walton Aff. ¶ 33, at 12-13; Defendants’ Response ¶ 33, at 9 (not disputing this fact). Many times when Walton gave her reports, expressed her opinion, or participated in the discussion, Powell and Jenks were aloof, would cut Walton off or make facial gestures, and Powell frequently intimidated and threatened Walton in those meetings by making comments, including, “if you don’t like it here we will be glad to help you find a place of your liking.” Response ¶ 33, at 13 (setting forth this fact). See Walton Aff. ¶ 33, at 13. 67
In June 2011, the General Appropriations Act of 2011 (“Appropriations Act”) the legislatively mandated Reduction in Force (“RIF”), which reduced the Land Office fiscal year 2012 budget, which began January 1, 2011, by $609,000.00 and the number of full-time equivalent (“FTE”) positions within the agency from 153 to 151. See MSJ ¶ 1, at 2 (setting forth this fact); MSJ (QI) ¶ 14, at 6 (also setting forth this fact); Defendants’ Lopez Depo. at 70:3-71:23. 68 Lyons proposed the budget and *945 FTE reduction to the State Legislature in September, 2010, before the November general election where Powell was elected. See MSJ ¶ 4, at 3 (setting forth this fact); MSJ (QI) ¶ 16, at 6 (also setting forth this fact); Olah Depo. at 28:4-28:7; Affidavit of L. Elaine Olah ¶ 2, at 1-2, filed November 27, 2013 (Doc. 52-2)(“01ah Aff.”); Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). After the Powell administration took office on January 1, 2011, Olah and others made significant efforts to save the agency from the budget cut and FTE reductions. See MSJ ¶ 5, at 3 (setting forth this fact); Olah Depo. at 28:19-32:11; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Despite the Powell administration’s efforts to save the agency from any RIF, the Legislature and Governor, through the Appropriations Act, nonetheless imposed both the budget cuts and the RIF Lyons proposed. See MSJ ¶ 6, at 3 (setting forth this fact); MSJ (QI) ¶ 17, at 7 (also setting forth this fact); Olah Depo. at 32:1-32:11; Olah Aff. ¶ 3, at 2; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact).
Starting in February of 2011, Olah designed the RIF. See MSJ ¶ 7, at 3 (setting forth this fact); MSJ (QI) (also setting forth this fact) ¶ 15, at 6; Olah Depo. at 72:21-73:23; Olah Aff. ¶¶ 3-4, at 2; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah, in designing the RIF, determined that' it would be best for one vacant and one filled position to be eliminated, to simultaneously reduce the FTE positions and reduce the budget, as the Appropriations Act required; she ultimately, based on a review of the Land Office’s organizational structure and mission, proposed the elimination of a General Manager I position. See MSJ ¶8, at 3 (setting forth this fact); MSJ ¶ 18-19, at 7; Olah Depo. at 70:3-70:11, 76:6-77:11; Olah ’ Aff. ¶¶ 4-5, at 2. 69 In making the determi *946 nation to eliminate the General Manager I position, Olah had to look to the structure and goals of the Land Office in determining where best to eliminate a filled FTE position. See MSJ ¶ 9, at 4 (setting forth this fact); Olah Depo. at 80:8-82:6. 70 Olah made the determination to eliminate the General Manager I position in the Commercial Resources Division before March 30, 2011. See MSJ ¶ 10, at 4 (setting forth this fact); Olah Depo. at 82:7-82:25. 71 In *947 making this determination, Olah looked to the agency’s organizational structure and its strategic plan for the coming years. See MSJ ¶ 11, at 4 (setting forth this fact); Olah Depo. at 123:18—124:11. 72 Olah’s decision recognized the Commercial Resources Division had two General Manager I positions, creating a redundancy; one position had numerous subordinates, the other had no subordinates, so Olah suggested that the two positions be combined so that management could be consolidated in a single General Manager I position. See MSJ ¶ 12, at 4 (setting forth this fact); MSJ (QI) ¶ 18, at 7; Olah Depo. at 137:7-139:11; Olah Aff. ¶4, at 2. 73 Of the two General Manager I positions in consideration for elimination, Walton’s position was chosen, because she had less seniority with the agency than the individual serving in the other General Manager I position, per SPO Regulation that “the order of layoff due to reduction in force shall be by service date which is determined based upon the agency hire date.” MSJ ¶ 13, at 4 (setting forth this fact). See Olah Depo. at 124:25-125:12; Letter from Chris Melen-drez, Associate Counsel, New Mexico State Land Office, to Gina Anaya, Civil Rights Specialist, Department of Workforce Solu *948 tions—Labor Relations Bureau (dated May 14, 2012), filed November 6, 2013 (Doc. 38-4). 74 At the time the RIF was designed, Olah had no knowledge of the Barker report. See MSJ ¶ 37, at 9 (setting forth this fact); Olah Depo. at 40:1-40-16. 75 Additionally, Olah was not aware that Walton had reported to Britt that *949 Bearden had engaged in alleged racially and sexually inappropriate behavior until after Walton’s position was eliminated and the RIF fulfilled. See MSJ ¶39, at 9 (setting forth this fact); MSJ (QI) ¶ 23, at 8; Olah Depo. at 67:5-67:18; Britt Depo. at 104:3-104:19; Olah Aff. ¶ 7, at 3. 76 There was nothing in Walton’s personnel file that indicated that she was registered to vote as a Republican, that she supported the Republican Party, that she supported Lyons when he was election, that she engaged in any political activity, or that she held any political ideology. See MSJ (QI) ¶ 8, at 5; First López Aff. ¶ 4, at 2. 77 In formulating the RIF, Olah did not know Walton was registered as a Republican, and Olah did not consider whether Walton supported the Republican Party, whether Walton supported Lyons during his election, whether Walton supported the Democratic Party, whether Walton supported the election of Powell, whether Walton engaged in any political activity, or whether Walton held any political ideologies. See MSJ (QI) ¶¶ 20, 21, at 7-8 (setting forth this fact); Olah Aff. ¶ 6, at 3. 78 Olah was *950 unaware of any complaints Walton may have made concerning her working conditions at the Land Office or concerning the manner in which the agency operated. See MSJ (QI) ¶24, at 8; Olah Aff. ¶ 7, at 3. 79
It was not Olah’s intention to eliminate Walton’s position or to terminate her employment; charged with eliminating two FTE positions, Olah was required to evaluate the Land Office’s organizational structure and to create a fully functioning organization. See MSJ ¶ 40, at 10 (setting forth this fact); Olah Depo. at 132:5-132:15; id. at 135:3-135:11 . 80 Olah did not, however, document any of her analysis and process in making the determination to eliminate Walton’s position. See Evidence in Opposition ¶ 9, at 2; Olah Depo. at 130:25-132:24. 81
Olah first presented her RIF design for approval in a meeting held on April 6, 2011, with Powell, Jenks, Relkin, a personnel representative, and outside counsel. See MSJ ¶ 14, at 5 (setting forth this fact); Olah Depo. 147:2-147:11 & 176:24-177:4; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Olah did not consult with Powell regarding her recommendations until after the RIF plan had been fully developed. See MSJ ¶ 32, at 8 (setting forth this fact); Olah Depo. at 127:19-128:17. 82 At the April 6 meeting, Powell *951 approved the plan to eliminate Walton’s General Manager I position. See MSJ ¶ 14, at 5 (setting forth this fact); Olah Depo. at 176:24-177:4; Powell Depo. at 131:22-133:8; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). Britt did not know that Walton’s position was going to be eliminated until after the final determination had been made and approved by Powell, Jenks, and Relkin; Britt did not have any input or involvement with the RIF plan. See MSJ ¶ 30, at 8 (setting forth this fact); Olah Depo. at 142:4-144:14; Britt Depo. at 97:12-97:19; Evidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). When Olah and Jenks informed Britt that the Commercial Resources Division would be losing Walton’s position, Olah was not aware that Walton had made a written complaint to Britt regarding Bearden. See MSJ ¶ 31, at 8
(setting forth this fact); Olah Depo. at 144:4-144:14. 83 Walton’s General Manager I position was eliminated as a result of the RIF; the RIF’s criterion to eliminate two FTE positions was executed. See MSJ ¶ 41, at 10 (setting forth this fact); Olah Depo. at 173:11-177:4. 84 Olah did not consider any alternatives to enacting the RIF, see Evidence in Opposition ¶ 40, at 8, Olah Depo. at 124:12-125:16; id. at 166:16-167:20 , although, there were alternatives available that did not require eliminating Walton’s position. See Evidence in Opposition ¶ 40 at 8 (setting forth this fact); Olah Depo. at 76:24-77:15; Powell Depo. at 144:14-145:5; id. at 146:10-147:5 ; Reply in Response ¶ 40, at 7 (not disputing this fact). Additionally, the Commercial Resources Division of the Land Office now has more managerial positions than when *952 Walton was employed there. See Evidence in Opposition ¶ 41, at 9 (setting forth this fact); Walton Aff. ¶ 36, at 14. 85
On June 10, 2011, Powell submitted the RIF plan to the State Personnel Office and received approval from the State Personnel Office on that same date. See Response ¶ 34, at 13 (setting forth this fact); Powell Depo. at 140:1-140:18; Defendants’ Response ¶ 34, at 9 (not disputing this fact). The State Personnel Office approved the RIF, and it was made effective June 30, 2011. See MSJ ¶ 15, at 5 (setting forth this fact); Walton Depo. at 135:24-137:21; Eyidence in Opposition ¶¶ 1-41, at 1-9 (not disputing this fact). On June 10, 2011, Walton was called into a meeting with Olah, Britt, and Lopez, and informed that her employment was being terminated effective June 30, 2011, because of a RIF. and that Walton would be on paid administrative leave immediately through June 30, 2011; Walton was directed to pack her personal belongings, turn in her keys, and leave the building immediately; before June 10, 2011, no one informed Walton that her position, could possibly be eliminated through a RIF. See Response ¶ 35, at 13 (setting forth this case); Walton Aff. ¶ 34, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). By an electronic mail transmission dated June 10, 2011, at 1:09 p.m., Powell informed the entire staff of the Land Office, statewide, that Walton’s employment had been terminated; the electronic mail transmission embarrassed and humiliated Walton. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). In Walton’s almost thirty years working in State government, she had never seen such an announcement of the termination of an employee’s employment. See Response ¶ 36, at 13 (setting forth this case); Walton Aff. ¶ 35, at 13; Defendants’ Response ¶ 35, at 9 (not disputing this fact). State Personnel Board Rule 1.7.10.9(C)(5), N.M. Admin. Code § 1.7.10.9, requires the Land Office to offer an employee affected by a RIF, such as Walton, a position in the agency that she is qualified for. See Evidence in Opposition ¶ 40, at 8; Plaintiffs Lopez Depo. at 133:16-142:15. At the time of the RIF there were at least two openings that Walton was qualified for and that the Land Office later filled with other people, however, Walton was not offered either of these positions in violation of State Personnel Board Rule 1.7.10.9(C)(5). See Evidence in Opposition ¶ 40, at 8-9; Walton’s Aff. ¶ 37, at 14. 86
*953
PROCEDURAL BACKGROUND
On April 2, 2013, Walton filed her first amended Complaint in state court against the Land Office, Powell, Britt, and Bear-den, alleging sexual and racial discrimination in violation of the NMHRA, N.M. Stat. Ann. § 28 -l-7(A); unlawful retaliation under the NMHRA, N.M. Stat. Ann. § 28-1-7 (1); violation of the WPA, N.M. Stat. Ann. § 10 -16C-1; and violation of her rights under the First and Fourteenth Amendments to the United States Constitution, including her rights to engage in political association 87 without reprisal by state officials and right to speak on matters of public concern. See First Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights ¶¶ 22-39, at 5-8, filed April 11, 2013 (Doc. 1-1). The Defendants removed the case to federal court on April 11, 2013. See Notice of Removal ¶¶ 1-7, at 1-2, filed April 11, 2013 (Doc. 1). Walton amended her first amended complaint on August 1, 2013, adding additional claims for discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). See Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights ¶¶ 28-33, at 6-7, filed August 1, 2013 (Doc. 20)(“Com-plaint”).
On November 6, 2013, the Defendants moved for summary judgment on all of Walton’s claims. See MSJ at 10-25. On November 27, 2013, the Defendants moved for summary judgment on Walton’s political affiliation and speech claims on the basis of qualified immunity. See MSJ (QI) at 8-20. Walton responded to the MSJ on December 19, 2013, and dropped her NMHRA and Title VII discrimination claims, her constitutional claims against Britt and Bearden, as well as her First *954 Amendment speech claims. See Response at 1 n. 1.
The Court will address the procedural background in three parts. First the Court will discuss the procedural background for the MSJ. The Court will next discuss the procedural background for the MSJ (QI). The Court will last look at the. hearing the Court held on April 9 and 10, 2014.
1. The MSJ, Response, and Reply.
In the MSJ, the Defendants argue that Walton has not produced sufficient evidence to establish a claim for retaliation under the NMHRA or Title VII of the Civil Rights Act of 1964. See MSJ at 15. The Defendants note that Walton’s retaliation claims must be examined under the burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973) (“McDonnell Douglas ”). See MSJ at 15. The Defendants argue that, to establish a prima facie case of retaliation under Title VII, Walton must demonstrate that “(1) she engaged in protected opposition to discrimination, (2) she was subject to an action that a reasonable employee would have found to be materially adverse, and (3) a causal connection exists between the protected activity and the materially adverse action.” MSJ at 15-16 (citing Webb v. Padilla, No. 08-0411 MV/LAM, 2009 WL 3379034 (D.N.M. Sep. 30, 2009) (Vazquez, C.J.)). The Defendants assert that under the NMHRA, to establish a prima facie case, Walton must show that “she was discharged because she performed an act that public policy authorizes or encourages.” MSJ at 16 (citing Chavez v. Manville Prod. Corp., 108 N.M. 643, 647 , 777 P.2d 371, 375 (1989)). The Defendants maintain that if Walton can establish a prima facie case, then under the McDonnell Douglas analysis, the Defendants are still entitled to summary judgment if they can demonstrate that there was a nondiscriminatory reason for the RIF of Walton’s General Manager I position. See MSJ at 16 (citing Moongate Water Co. v. State, 120 N.M. 399 , 902 P.2d 554 (Ct.App.1995)).
The Defendants concede that “the RIF was an adverse employment action,” but they argue that Walton cannot establish a prima facie case, because she cannot meet the other two elements. MSJ at 16. The Defendants argue that Walton did not engage in protected opposition to discrimination, because Walton’s “protected opposition ... must be to an ‘unlawful employment practice [under] [Title VII],”’ and Bearden’s complained of behavior does not rise to a level that violates Title VIL MSJ at 16-17 (quoting Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir.2002) (alterations in the MSJ but not in original) (“Petersen ”)). The first element requires Walton to “have a reasonable, good faith belief that she was opposing discrimination,” and a “good faith belief involves both subjective and objective elements.” MSJ at 17 (citing Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163, 1171 (10th Cir.2003)). This element means Walton must show that she “was targeted because of her gender, national origin or some other protected class,” MSJ at 17 (citing Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327 (10th Cir.2004)), which Walton cannot do because of a lack of evidence, see MSJ at 17. The Defendants also argue that Walton cannot establish the third element—a causal connection. MSJ at 17. The Defendants argue that Walton “ ‘must show that the individual who took adverse action against [her] knew of the employee’s protected activity.’ ” MSJ at 18 (quoting Williams v. Rice, 983 F.2d 177, 181 (10th Cir.1993)) (alterations in the MSJ but not in original). *955 Olah identified Walton’s position for the RIF before March 30, 2011, but Walton did not formally report Bearden’s conduct to Britt until April 29, 2011. See MSJ at 17. Furthermore, there is no evidence that Olah had any knowledge of Bearden’s alleged discriminatory conduct. See MSJ at 18. Therefore, the Defendants argue, because “there is no evidence Elaine Olah had knowledge of any protected activity on the part of Ms. Walton, there can be no causal connection between any protected activity and Plaintiffs adverse action.” MSJ at 18.
As to Walton’s WPA claim, the Defendants make similar arguments. See MSJ at 18-19. The Defendants argue that, in “understanding the [WFA], it is important to look to the federal Whistleblower Protection Act, 5 U.S.C. § 2302 ... and decisions interpreting it, ... because the federal and New Mexico acts are materially similar.” MSJ at 18. The Defendants maintain that under the federal Whistle-blower Protection Act, “[disclosures which do not demonstrate clear violations of law, gross mismanagement and abuse of authority, or other wrongful conduct, are not protected as whistleblowing.” MSJ at 19 (citing Kavanagh v. Merit Sys. Prot. Bd., 176 Fed.Appx. 133, 135 (Fed.Cir.2006)). The Defendants argue that Walton has not established a protected disclosure, because “[h]er complaints about Ms. Bearden’s inappropriate remarks, sabotaging of work, etc. simply do not rise to the level of ‘unlawful or improper acts’ necessary to come with the [WPA’s] protection.” MSJ at 19. The Defendants further argue that Walton’s “WPA claim fails because she cannot establish the causal connection element of a prima facie case.” MSJ at 20 (emphasis omitted). A “successful WPA claim requires [Walton] to establish that the adverse employment action was taken by the SLO because of the alleged protected disclosure.” MSJ at 19 (citing DeSan-tis v. Napolitano, 716 F.Supp.2d 1100, 1107 (D.N.M.2010) (Browning, J.)). Because “[t]here is no evidence that Ms. Olah, who designed the RIF, had any knowledge of the alleged protected disclosures of [Walton],” Walton has failed to show that she was terminated because of her protected disclosures. MSJ at 20.
Regarding Walton’s political affiliation claim, the Defendants argue that “there is no evidence that Ms. Olah, again the only person responsible for the design of the RIF of [Walton’s] position, intended to discriminate on the basis of political affiliation”; there is no “genuine dispute that political affiliation and/or beliefs .were a ‘substantial or motivating factor’ in the RIF.” MSJ at 22. The Defendants argue that Walton “has no evidence she was discriminated against because she was Republican,” but instead Walton “only alleges she was mistreated because of her association with a prior administration.” MSJ at 22-23. The Defendants refer the Court to Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir.1999) {“Jantzen”). According to the Defendants, in Jantzen , a county sheriff warned his subordinates during a meeting that anyone who ran against him in an election, openly opposed him, or was disloyal to him, would be fired, and when the plaintiff announced he would run against the sheriff in the election, he was immediately fired. See MSJ at 23. The court granted summary judgment to the defendant sheriff based on those facts, because the plaintiff had failed to put forth any evidence that “he was terminated for ‘supporting or affiliating with a particular political party.’ ” MSJ at 23 (quoting Jant-zen, 188 F.3d at 1252 ). The Defendants also direct the Court to Nelms v. Modisett, 153 F.3d 815 (7th Cir.1998) {“Nelms”). See MSJ at 23. In Nelms , an investigator in the Indiana Attorney General’s Office, who worked under a Republican adminis *956 tration, had his position restricted and eliminated under- a Democrat administration, and when the investigator inquired about the termination, he was told “you understand the political realities.” MSJ at 23 (quoting Nelms, 153 F.3d at 817 ). There, the United States Court of Appeals for the Seventh Circuit, in affirming the district court’s grant of summary judgment for the defendant, held that there was no evidence that “the protected political association was a substantial factor in the decision to terminate him,” and that a “ ‘disgruntled employee fired for legitimate reasons would not be able to satisfy the burden merely by showing that he carried the political card of the opposition party or that he favored the defendant’s opponent in the election.” MSJ at 123-24 (quoting Nelms, 153 F.3d at 818 ). The Defendants argue that Walton’s claim of discrimination based on political affiliation is directed at Britt, Powell, and Bearden; however, there “is no evidence any of these individuals had any involvement with the RIF, which was within the sole determination of Ms. Olah.” MSJ at 24. The Defendants further argue that Walton’s “claims are based only upon untethered speculation,” and that her “allegations and testimony ... fall short of any objective or direct evidence her position was targeted for the RIF on the basis of her Republican affiliation.” MSJ at 24. The Defendants argue in the alternative, that, “even assuming Plaintiff establishes a prima facie case, the Defendants clearly demonstrate a legitimate, non-political reason for the elimination of Ms. Walton’s position.” MSJ at 24. The Defendants again refer the Court to Nelms , wl)ich involved an organizational restructuring, and an employer having to choose between the plaintiff and an employee, who had been with the employer ten years longer than the plaintiff, to show that Walton “cannot rebut Defendants’ assertion that the RIF was a legitimate, nonpolitical reason for the elimination of Plaintiffs job,” because “[virtually the same principal facts exist in the present case” as Nelms , where the court “found no evidence rebutting defendant’s assertion that the re-organization was a legitimate reason to terminate the plaintiff.” MSJ at 24-25.
In response to the MSJ, Walton first argues that she has produced sufficient evidence to establish a prima facie case of retaliation. See Response at 17. Walton argues that it is undisputed that she “engaged in a protected activity when she submitted written complaints about Ms. Bearden’s conduct to her supervisor, Mr. Britt, on April 7 and 8, and on May 5, 2011,” and that it is undisputed that the Land Office “took an adverse employment action shortly after Walton engaged in that protected conduct.” Response at 17-18. Walton argues that the “proximity of the protected activity and the submission of the RIF plan to the State Personnel Office alone is sufficient to establish a prima facie case of retaliatory motive.” Response at 18. Walton further argues that there is sufficient evidence to show that the RIF criteria was manipulated to terminate her position and that the RIF was “generally pretextual,” including “that the SLO did not consider any options to Walton’s termination, that other options were available, that other divisions in the SLO had an organizational structure similar to the structure of the Commercial Resources Division, and that the SLO failed to offer Walton a right of first refusal for other positions in the SLO.” Response at 18. Walton notes that Olah has denied “knowledge of Walton’s complaints,” but “a reasonable inference” can be drawn from the facts that Britt delivered copies of Walton’s complaints to Lopez, that Olah supervises Lopez, and that the Land Office policy requires human re *957 sources “to investigate and keep copies of the complaints,” to conclude that Olah knew of Walton’s complaints and “is now not being truthful.” Response at 18. Regardless, Walton argues that Olah’s testimony is not conclusive, by referring the Court to Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir.1991), for the assertion that an “actors’ self-serving statement about his state of mind is not conclusive.” Response at 18. Walton argues that, even if Powell, and not Olah, was the “ultimate decision maker” and he did not know about Walton’s protected activity, there is still “evidence from which the trier of fact could conclude that the SLO is liable for retaliation under the subordinate bias theory of liability....” Response at 18 (citing EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 485 (10th Cir.2006)). Walton argues that there is sufficient evidence to infer that Powell’s staff informed him of Walton’s complaints of Bearden’s conduct before Powell submitted the RIF to the State Personnel Office for approval. See Response at 19. Walton specifically refers to the facts that Lopez, Olah, and others met with Powell to discuss the RIF before June 10, 2011; that Lopez believed Lyons had improperly moved Walton to a classified position; and that Britt testified that he delivered copies of Walton’s complaints about Bearden to Lopez, who was obligated to investigate the complaints. See Response at 19. Walton further argues that there is evidence that the RIF was pretextual, and that “Powell was motivated to favor” Bearden because Bearden worked for the first Powell administration and Bearden sent an electronic mail transmission to Powell and his staff Land Office containing “information about a pending land sale” more than two months before the November 2, 2010, general election. Response at 19.
As for the WPA.claim, Walton argues that “there is ample evidence that” she “communicated to her supervisor, Mr. Britt, in accordance with SLO policy,” Bearden’s conduct, “which Walton believed in good faith constituted improper and unlawful discrimination.” Response at 20. Walton argues that her reporting of Bear-den was protected activity, because “Bear-den’s conduct was, at a minimum, improper” and that “Bearden’s conduct violated SLO’s policy against sexual, racial, and religious harassment.” Response at 20. According to Walton, “[w]hether Ms. Bear-den’s conduct rose to the level of actionable harassment under either Title VII or the NMHRA is irrelevant,” because the WPA prohibits retaliation “against a public employee who reports conduct ‘that the public employee believes in good faith constitutes an unlawful or improper act.’ ” Response at 20 (quoting N.M. Stat. Ann. § 10 -16C-3). To show that Olah knew of Walton’s complaints, Walton asserts the same facts she uses to support her retaliation claim: that Britt forwarded Walton’s complaints to Lopez, whom Olah supervised. See Response at 20.
As for her political affiliation claim, Walton argues that there is a “genuine dispute of fact ... whether Walton’s political affiliation with the Republican party and with Mr. Lyons were substantial or motivating factors in the adverse employment action.” Response at 21 (internal quotation marks omitted). Walton argues that, when “Powell submitted the RIF plan to the ... State Personnel Office for approval, Powell was aware that Walton was politically affiliated with both the Republican party and Mr. Lyons, who was Powell’s political adversary.” Response at 21. To show Powell’s knowledge of her political affiliations, Walton points to the facts that Powell watched the Barker report; Powell considers Barker to be the gold standard of reporting; Powell found no reason to disbelieve Barker’s report; and Powell re *958 ceived a letter from Hemphill, describing Walton’s affiliation with Lyons and cautioning that any retaliation against her because of her political affiliation would be illegal. See Response at 22. Powell argues that the April 14, 2011 meeting with the State Trust Lands Advisory Board, where Powell discussed the Barker report and made the statement about protected employees from the Lyons’ administration, shows that “Powell approved the RIF plan in retaliation for Walton’s political affiliation.” Response at 22. Walton addresses the Defendants’ argument that Nelms “is instructive,” by arguing that, in Nelms , there was no evidence “that the persons who terminated the plaintiffs employment were motivated by the plaintiffs Republican party membership,” but, “[b]y contrast, in this ease the jury can reasonably infer ... that Powell, the official who ultimately approved the RIF plan” and submitted it to the State Personnel Board for approval, “was motivated by Walton’s political affiliation.” Response at 22-23. Specifically, Walton refers the Court to the April 14, 2011, meeting; to Britt making numerous comments to Walton about her association to Lyons; and to Powell and to his staff demonstrating their “distrust of Walton in the context of transactions completed in the Lyons administration” by making comments and facial gestures. Response at 23. Walton also argues that “the jury can reasonably infer that Ms. Olah designed the RIF to eliminate Walton’s position at the behest of Powell or with Powell’s endorsement, because of Walton’s political affiliation.” Response at 23. Walton directs the Court to the facts that Olah was “a member of Powell’s handpicked team” and was hired as an exempt employee to “oversee Administrative Services, including the Human Resources Manager, Sandra Lopez”; that Lopez informed Olah that she objected to Lyons’ direction to transfer Walton to a classified position; that Lopez, Olah, and others “met with Powell to inform” him about the development of the RIF plan; and that “there were alternatives to meeting the budgetary and FTE requirements” from the Appropriations Act that did not require eliminating Walton’s position. Response at 24. Walton argues that “the jury is not obligated to accept Ms. Olah’s denial” that she did not know of Walton’s political affiliation before developing the RIF plan and that Powell did not direct the development of the RIF plan to target Walton. Response at 24.
In their Reply, the Defendants repeat their arguments from the MSJ that Walton did “not engage in protected opposition to Title VII discrimination, nor did she make any protected disclosure,” because the activities of which Walton complained did not “rise to a level of discrimination required by Title VII,” noting that Walton “voluntarily dismissed her claims for discrimination.” The Defendants’ Reply in Support of Motion for Summary Judgment on Plaintiffs Second Amended Complaint to Recover Damages for Discrimination and Retaliation and for Violations of Constitutional Rights at 4-5, filed January 17, 2014 (Doc. 59)(“Reply”). The Defendants argue that the “fact [Walton] claims that she was targeted because of her gender, national origin or some other protected class are being voluntarily dismissed is indicative of the fact that [Walton] recognizes that she did not engage in any protected activity.” Reply at 5. The Defendants repeat their arguments from the MSJ that Walton cannot establish a causal connection, because her electronic mail transmissions and memoranda to Britt, detailing her complaints, were sent after the decision to terminate her position was made. Reply at 5-6. The Defendants argue that the Court must disregard Walton’s allegations concerning the April 7 or *959 8, 2011, electronic mail transmissions, because Walton “has failed to provide evidence of written complaints made” in those electronic mail transmissions by citing to Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885 (9th Cir.2003), for the proposition that “Courts may only consider that evidence properly before them and admissible at trial.” Reply at 4 n. 1 (citing 336 F.3d at 889 ). The Defendants address Walton’s argument that Olah must have known of Walton’s complaints and was motivated to prepare a retaliatory RIF, by arguing that the decision to terminate Walton’s position was made before Walton’s electronic mail transmissions and memoranda to Britt. Reply at 6. In addressing the subordinate bias theory, the Defendants argue that “the Court must first find that Ms. Olah was aware of the complaints made by Plaintiff to Mr. Britt” in the April 29, 2011, memoranda so “that her bias could thus be attributed to Commissioner Powell”; yet, Olah had made the decision to terminate Walton’s position before the memoranda were delivered. Reply at 7.
The Defendants next argue that, even if the Court determines that Walton established a prima facie case for retaliation, the “Defendants have presented evidence of a legitimate, nonretaliatory business reason for its decision to eliminate Plaintiffs position.” Reply at 7. Regarding Walton’s assertion that there were other alternatives available to Olah that did not terminate Walton’s position, the Defendants argue that “a fact finder should not second guess an employer’s decision absent objective evidence of discriminatory motive.” Reply at 7 (citing Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1169 (10th Cir.1998); Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1363 (10th Cir.1994)). The Defendants contend that “[a]s such, the Court should disregard all evidence of Plaintiff purporting to demonstrate the ‘alternatives’ Ms. Olah supposedly had available aside from eliminating Plaintiffs General Manager I position.” Reply at 7. The Defendants argue that, because they have offered a legitimate, nondiscriminatory reason for the decision, “summary judgment is warranted unless [Walton] can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual.” Reply at 7 (citing Asbury v. Geren, 582 F.Supp.2d 1323, 1334 (D.N.M.2008) (Black, J.)). The Defendants’ argue that the evidence presented by Walton is “legally insufficient” to support a claim that the RIF plan was pretextual. Reply at 8. The Defendants argue that Walton “asserts but fails to present evidence that”: (i) Olah did not consider alternatives to Walton’s termination, (ii) alternatives were available, (iii) other divisions in the Land Office had similar organizational structures as the Commercial Resources Division, and (iv) the Land Office did not offer Walton a right of first refusal for another position in the Land Office, as State Personnel Board Rule 1.7.10.9., N.M. Admin. Code § 1.7.10.9, requires. Reply at 8. They contend that, because it is not their “burden to establish that the decision to eliminate [Walton’s] position was a good one, or a right one[,] all the [Defendants] need to do is state a reason other than retaliation for their action.” Reply at 9 (citing Sanchez v. Mora-San Miguel Elec. Coop. Inc., No. 98-2061, 1999 WL 176151 , at *5 (10th Cir.1999) (unpublished)). The Defendants argue that “whether other divisions in the SLO had an organizational structure similar to the organizational structure of the Commercial Resources Division is irrelevant” to the issue of pretext, because, while “the Mineral Resources Division ... may have had a similar structure, it was dissimilar in a number of key ways.” Reply at 9. Additionally, the Defendants ar *960 gue that they “did not fail to offer [Walton] a right of first refusal for other positions,” because “there were no other positions being filled from June 10, 2011 through July 1, 2011, the time frame covered by” State Personnel Board Rule 1.7.10.9., N.M. Admin. Code § 1.7.10.9. Reply, at 9.
As for Walton’s WPA claim, the Defendants repeat arguments from the MSJ that Walton cannot show that she disclosed protected information, that there was a pretext, or that there was a causal connection “between any protected disclosure and her adverse employment action.” Reply at 10. The Defendants argue that the McDonnell Douglas burden-shifting standard should be used, because the WPA provides defendants with an affirmative defense to prove “‘a reduction in workforce or other legitimate business unrelated to conduct prohibited pursuant to the Whistleblower Protection Act and that retaliatory action was not a motivating factor.’” Reply at 11 (quoting N.M. Stat. Ann. § 10 -16C-4(B)). The Defendants contend that Walton “cannot show the requisite protected activity required by the WPA,” because Walton’s complaints to Britt regarding Bearden’s conduct “are unprotected disclosures because she was reporting claimed misconduct which was a matter within her regular job duties.” Reply at 11. The Defendants maintain that the General Manager I position was tasked with correcting and disciplining staff members for inappropriate behavior, and by “reporting Ms. Bearden’s conduct up the chain of command to her immediate supervisor, Mr. Britt, Ms. Walton was doing nothing more than reporting misconduct of a subordinate as part of her assigned job responsibilities.” Reply at 11. The Defendants argue that the communications are “undertaken as part of [an employee’s] normal duties and through normal channels are not protected disclosures” under the Federal Whistleblower Protection Act. Reply at 11 (citing Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312-13 (Fed.Cir.2010); Huffman v. Office of Pers. Mgmt, 263 F.3d 1341, 1352 (Fed.Cir.2001), superseded by statute, Whistleblower Protection Enhancement Act of 2012, Pub.L. No. 112-199, § 101 (b)(2)(C), as recognized in 504 Fed.Appx. 894, 896 (Fed.Cir.2013) (unpublished)). Additionally, the Defendants argue that, even “assuming Plaintiffs claims can be interpreted to identify protected disclosures under the WPA, complaints that Mr. Britt or others did nothing to follow up, investigate or resolve Plaintiffs complaints in the workplace do not rise to the level of protected disclosures.” Reply at 12 (citing Willis v. Dep’t of Agrie., 141 F.3d 1139, 1143 (Fed.Cir.1998) (“[C]riticism directed to the wrongdoers themselves is not normally viewable as whistle-blowing.”)).
The Defendants árgue that Walton’s complaints about Bearden “do not constitute ‘unlawful or improper acts’” as the WPA defines the phrase because Walton’s complaints “cannot rise to the level of a violation of federal or state law.” Reply at 12 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998)). The Defendants further argue that Walton has not produced any evidence of pretext or a causal connec- ' tion, which are “closely related” concepts. Reply at 12-13. The Defendants argue that Walton has not produced evidence of pretext, “other than statements in her Affidavit which are conclusory, based on speculation, and are unreasonable inferences of agreed upon fact.” Reply at 13. The Defendants argue that Walton’s argument that the adverse employment action came within close proximity of Walton notifying Britt of her complaints “wholly ignores the unrefuted evidence that Ms. Olah, the only practical decision maker with respect to the RIF, made her deter- *961 ruination to eliminate Plaintiffs General Manager I position by March 30, 2011, and that her recommendation was approved by Commissioner Powell on April 6, 2011.” Reply at 13. The Defendants argue that Walton has produced no evidence that Olah held a discriminatory animus against her when Olah made the RIF recommendation. See Reply at 13.
Regarding Walton’s political affiliation claim, the Defendants concede that Walton’s “General Manager I position ... did not require political allegiance,” but argue that Walton has not established that her political affiliation was a substantial or motivating factor in the termination of her position. Reply at 14. The Defendants argue that it “is not sufficient for Plaintiff to establish that she was a Republican, or that she attended Republican events, or that she was hired by a Republican commissioner into an exempt position.” Reply 14 (citing Nelms, 153 F.3d at 815 ). The Defendants additionally argue that Powell’s testimony that he watched the Barker report and had no reason to disbelieve it “does not mean a prima facie political association claim is made,” but instead shows only “that Commissioner Powell knew Plaintiff was a Republican accused by the media of obtaining her exempt job during the Lyons administration through special favor.” Reply at 15. Addressing the April 14, 2011, meeting, where Powell made remarks concerning protected employees, the Defendants argue that Powell’s “deposition testimony demonstrates he meant individuals other than Plaintiff’ and that “there is no suggestion by Commissioner Powell that such ‘protected employees’ would be targeted for a discriminatory RIF or any such other illegal treatment.” Reply at 15. The Defendants further argue that Walton “mischar-acterizes [the] meeting by linking references of the Larry Barker report, to use of the term ‘protected employees’ in the Lyons administration.” Reply at 17. The Defendants contend that at the meeting, Powell was offering a “brief overview of the first four months of office and proceeded to address a special audit issued to the SLO,” when Powell stated that the “special audit has helped to form recent public perception of the Land Office that is skewed due to the concerns brought up in the audit” and that, following the audit, “ ‘there have been a series of interviews by investigative reporters like Larry Barker which have been featured on television statewide.’ ” Reply at 16-17 (quoting State Land Trust Meeting at 3). Powell, later in the meeting, unrelated to the Barker report, stated “that he was ‘concerned about employees in inappropriate roles, protected employees.’ ” Reply at 17 (internal quotation marks omitted). The Defendants argue that there “is no clear evidence Commissioner Powell was referring to the Larry Barker story” that concerned Walton, because there was, in fact, “more than one story about the SLO reported by Mr. Barker.” Reply at 17 (citing Powell Depo. at 49:11-51:6). The Defendants argue that Powell’s comments at the meeting were not directed at Walton and that there is not “any reasonable inference” that they were, absent “pure speculation.” Reply at 17. Furthermore, the Defendants argue that Powell “only approved a RIF design undertaken by Ms. Olah, who” did not know of Walton’s political affiliation or the Barker report. Reply at 15. The Defendants attempt to distinguish Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir.1988) (“Dickeson”), which Walton brings up in her Response to the MSJ (QI), Response (QI) at 9, by arguing that the “present case is clearly distinguishable from Dickeson.” MSJ at 15-16. The Defendants contend that in Dickeson the defendant-sheriff told one of the plaintiffs that there were “black *962 marks against him” because of his association with the ex-sheriff; the defendant-sheriff stated at a meeting that employees, who campaigned for the ex-sheriff, “need not bother re-applying for their jobs”; the defendant-sheriff told one of the plaintiffs that he did not want a friend of the ex-sheriff in his position; and the defendant-sheriff told one of the plaintiffs that he was “not going to keep her on because of her failure to campaign and vote for him.” MSJ at 15-16. The Defendants maintain the only evidence Walton “offers in support of her” political affiliation claim is that Powell was “aware of her political affiliation,” because of the Barker report and Hemphill letter, and that Powell “displayed his political bias against Walton at the April 14, 2011 meeting of the State Trust Lands Advisory Board.” Reply at 16.
2. The MSJ (QI), Response (QI), and Reply (QI).
In the MSJ (QI), the Defendants argue that they are entitled to Qualified Immunity with regards to
Walton’s claim that the elimination of her position in a reduction in force violated the First Amendment right of political association because she did not have a clearly established right not to be subject to a reduction in force on account of being hired as an “exempt” employee during the Lyons administration.
MSJ (QI) at 11. The Defendants argue that a “First Amendment protected political association claim or belief generally consists of support for a particular political party, candidate for election, or political ideology.” MSJ (QI) at 12 (citing Gann v. Cline, 519 F.3d 1090, 1092-93 (10th Cir.2008)(“Gcwm ”)). The Defendants argue that Walton has not alleged “that her position was designated for elimination in the reduction in force plan because she was registered to vote as a Republican, supported the Republican Party, or supported Commissioner Lyons’ election or any other political activity or ideology.” MSJ (QI) at 12. The Defendants assert that Walton has not alleged that her position was eliminated because of a lack of support for “the Democratic Party, Commissioner Powell’s election, or any other political activity or ideology.” MSJ (QI) at 12. Instead, the Defendants argue that Walton’s claim is that “her position was eliminated because she had been hired as an ‘exempt’ employee when Lyons was the Commissioner of Public Lands and later re-classified, ultimately, into a General Manager I, classified position” with no indication of allegations that a retaliation was based on anything other than a “loose association with Commissioner Powell’s predecessor.” MSJ (QI) at 12.
The Defendants argue that an “affiliation with individuals or administrations without a claim” that the affiliation “is based on political beliefs is not protected.” MSJ (QI) at 13 (citing Jantzen, 188 F.3d at 1247 ). The Defendants note that the “Plaintiff claims that her hire as an ‘exempt’ employee and subsequent reclassification is a form of political association,” and that it was made “clear to Defendants that Plaintiff was, in fact, a hire based on political beliefs.” MSJ (QI) at 13. The Defendants contend that hiring a person “into an ‘exempt’ position is not necessarily a form of political affiliation or political belief,” but instead it “simply means the employee was hired outside the requirements of the State Personnel Act,” N.M. Stat. Ann. § 10-9-4 (D). MSJ (QI) at 13 (citing N.M. Stat. Ann. § 10-9-4 ). The Defendants argue that, when hiring Walton, the Land Office did not take into consideration that Walton was registered to vote as a Republican, that she supported the Republican Party, the election *963 of Lyons, or any other political activity. See MSJ (QI) at 13. The Defendants argue that Olah did not know that Walton was registered as a Republican, and that Olah did not consider whether Walton supported the Republican or Democrat Party, the Lyons or Powell elections, or any other political effort. MSJ (QI) at 13-14. The Defendants argue that Walton’s “First Amendment right not to be subject to a reduction in force because of her original hire as an ‘exempt’ employee was not clearly established.” MSJ (QI) at 14. Additionally, the Defendants contend that there is no evidence that Britt or Bearden participated in the RIF process, and that there is no evidence that Powell retaliated on the basis of political association, “when approving the termination of Plaintiffs position.” MSJ (QI) at 14.
In response, Walton argues that “there are genuine issues of material facts as to whether the RIF was a pretext for retaliation for Walton’s political association with the out-going Lyons administration and with the Republican party” by referring the Court to her Response to the MSJ. Response (QI) at 8. Concerning the second prong for qualified immunity, Walton argues that her right “was clearly established at the time of the conduct in question,” because “it has long been established that ‘the First Amendment Protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance.’ ” Response (QI) at 8 (quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1451 (10th Cir.1997), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir.2011)). Walton argues that the “Supreme Court [of the United States] has articulated that right in a variety of circumstances.” Response (QI) at 8 (citing Elrod v. Burns, 427 U.S. 347, 359 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 514-15 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980) (“Branti ”); Rutan v. Republican Party of III., 497 U.S. 62, 72 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990)). Walton also argues that the Tenth Circuit “has recognized a public employee’s First Amendment right to be free from discrimination and retaliation because of political affiliation (or non-affiliation) in a wide variety of circumstances.” Response (QI) (citing Dickeson, 844 F.2d at 1441 ; Laidley v. McClain, 914 F.2d 1386, 1395 (10th Cir.1990), superseded by rule on other grounds as recognized in Ferguson v. Brian Webster P.A., 493 Fed.Appx. 982 (10th Cir.) (unpublished); Mason v. Okla. Tpk. Auth., 115 F.3d at 1451 ; Bass v. Richards, 308 F.3d 1081, 1090-91 (10th Cir.2002); Gann, 519 F.3d at 1095-96 ).
Walton argues that the facts in Dicke-son “were very similar to the facts in this case.” Response (QI) at 9. Walton states that in Dickeson , a sheriff terminated the plaintiffs’ employment because of their association with the former sheriff, and the United States Court of Appeals for the Tenth Circuit held that the termination of the plaintiffs’ employment, because of their association with the former sheriff, “would have violated their First Amendment right of political association.” Response (QI) at 10 (citing Dickeson, 844 F.2d at 1436 ). Walton argues that “Dicke-son clearly informed Powell that [he] could not terminate Walton’s employment because of Walton’s association with Powell’s political adversary, the former Commissioner of Public Lands, Patrick Lyons.” Response (QI) at 10. Walton argues that Gann “demonstrates that the contours of a public employee’s First Amendment right to be free of political patronage were clearly established in 2008”—two years before “Powell engaged in the patronage termination of Walton.” Response (QI) at 10. *964 According to Walton, in Gann , a county-commissioner fired a county requisitions manager, who alleged that she was fired and replaced because she did not support the county commissioner’s election campaign, while her replacement did. See Response (QI) at 10 (citing Gann, 519 F.3d at 1095 ). The Tenth Circuit held that the plaintiffs’ right was clearly established at that time, because the defendant was on reasonable notice that his conduct was unlawful even though the facts in the case did not precisely match controlling precedent. See Response (QI) at 10 (citing Gann , at 1096). Walton argues that “Powell was on reasonable notice that” terminating Walton’s position because of her “association with Powell’s Republican predecessor ... was unconstitutional.” Response (QI) at 11. Walton further argues that “Powell admitted in this [ (sic) ] deposition that he was aware that the termination of a public employee because of the public employee’s political affiliation was improper.”" Response (QI) at 11 n. 3 (citing Powell Depo. at 36:25-38:6).
Walton argues that “Powell has misleadingly attempted to recast Walton’s § 1983 claim” by stating that “ ‘she did not have a clearly established right not to be subject to a reduction in force on account of being hired as an ‘exempt’ employee during the Lyons administration.’ ” Response (QI) at 11 (quoting MSJ (QI) at 11). Walton argues that the “Defendants’ convoluted statement completely misconstrues Walton’s claim,” because it “was the termination of Walton’s employment because of Walton’s affiliation -with Powell’s political adversary, Patrick Lyons, and Walton’s affiliation with the Republican party, that violated” her “First Amendment right to be free of political patronage.” Response (QI) at 12. Walton argues that Powell’s knowledge that Lyons, “[Powell’s] political adversary, hired Walton, a Republican, as an exempt employee, and then moved [her] into a classified position shortly before the November 2010 election, is evidence that Powell knew of Walton’s political affiliation.” Response (QI) at 12. Walton argues that the Defendants’ “attempt to show that Walton’s claim is somehow distinguishable from controlling precedent ... completely misstates and misconstrues Walton’s claim.” Response (QI) at 12. Walton argues that other statements in the MSJ (QI) are “misleading,” including the statement: “[h]ere, Walton does not allege that her position was designed for elimination in the reduction in force plan because she was registered to vote as a Republican, supported the Republican Party, or supported Commissioner Lyons’ election or any other political party or ideology.” Response (QI) at 12 (quoting MSJ (QI) at 8-9). Walton directs the Court to her Complaint, where she alleges that “Powell ... unlawfully retaliated against Walton in violation of ... her right to engage in political association free of reprisal by State officials.... Specifically, and without limitation, Powell retaliated against Walton for Walton’s political affiliation with the Lyons’ administration.” Response (QI) at 12 (quoting Complaint ¶ 42 at 8-9). Walton also points to her Response to the MSJ, where she alleges that she “more fully described her allegations” that her “‘political affiliation with the Republican party and with Mr. Lyons were substantial or motivating factors in’ ” the termination of her position. Response (QI) at 13 (quoting Response at 21). Walton addresses the Defendants’ assertion that “ ‘affiliation with individuals and administrations generally is not protected,’ ” Response (QI) at 13 (quoting MSJ (QI) at 13), by arguing that, in Dickeson , the plaintiffs alleged only that their employment was terminated because they had been hired by the previous sheriff and not because they were active in a political cam *965 paign, because they voted for a certain candidate, or because they were members of a specific political party, Response (QI) at 13 (citing Dickeson, 844 F.2d at 1445 ). There, according to Walton, the Tenth Circuit reversed the district court’s dismissal of the plaintiffs’ claims by holding that the “ ‘plaintiffs should be allowed to attempt to prove that they were discharged because of their party affiliation and/or association with ex-Sheriff Harvey.’ ” Response (QI) at 13 (quoting Dickeson, 844 F.2d at 1445 ). Walton further uses Dickeson to argue that the Defendants’ claim that a loose affiliation is insufficient to establish a First amendment claim “is without any support, and is meaningless under the facts in this case.” Response (QI) at 13.
Walton contends that the Defendants “mis-cited” Jantzen for the proposition that an affiliation with an individual or administration without a claim that the affiliation is based on political beliefs is not protected, because the Tenth Circuit in Jantzen , never made “such a pronouncement.” Response (QI) at 14 (citing Jantzen, 188 F.3d at 1247 ). Additionally, Walton argues that Jantzen does not support the Defendants’ assertion of qualified immunity, because the Tenth Circuit in Jantzen recognized that it was clearly established at that time that it is unconstitutional to terminate an employee for “ ‘affiliating with and/or believing in a particular candidate.’ ” Response (QI) at 15 (quoting Jantzen, 188 F.3d at 1259 ).
In reply, the Defendants argue that Walton does not allege in her Complaint that she was retaliated against “for her support of the Republican Party, the fact she was a registered Republican, any support for the election of Commissioner Lyons, or any other political ideology,” nor that Powell knew of these facts “at the time of the RIF.” Reply Brief of Defendants Ray Powell, Donald Britt and Delma Bearden in Support of Motion for Summary Judgment on Count VI of the Second Amended Complaint on Grounds of Qualified Immunity at 3-4, filed January 24, 2014 (Doc. 64)(“Reply (QI)”). The Defendants argue that the “sole basis for Plaintiffs political association claim is that she was retaliated against because of her ‘political association with the Lyons’ Administration.” Reply (QI) at 4 (quoting Complaint ¶ 18, at 4). The Defendants argue that the Complaint is “structured such that any retaliation for Plaintiffs alleged political association is apparently based on the fact she was hired as an exempt employee and reclassified as a classified employee during the Lyons Administration.” Reply (QI) at 4. The Defendants assert that Walton has recast her claim in the Response (QI) to argue that her claim is based on her “ ‘political affiliation with both the Republican Party, and with Powell’s political adversary, Patrick Lyons.’ ” Reply (QI) at 4 (quoting Response (QI) at 12). The Defendants concede that, “[d]ue to the manner in which she has recast her claim, Defendant, Powell does not dispute the fact that, at the time of the RIF ... it was clearly established that if a public employer used political association as a substantial or motivating factor behind an adverse employment action,” such action would violate the employee’s First Amendment rights. Reply (QI) at 4. The Defendants argue that the Court must still determine whether a prima facie case exists before evaluating qualified immunity, and the Defendants refer the Court to their Reply to the MSJ to argue that Walton has failed to make a prima facie case or has, in the alternative, failed to establish sufficient evidence to show pretext. Reply (QI) at 4-5.
The Defendants argue that as “plead [ (sic) ], however, Plaintiffs Complaint may be insufficient as a matter of law, but it nonetheless supports a finding of qualified immunity for Mr. Powell,” because it “was *966 not clearly established that affiliation with another administration, standing alone, and without allegations that Plaintiff was retaliated against for supporting a candidacy or her political beliefs, supported a political affiliation claim.” Reply (QI) at 5. The Defendants again refer to Court to Nelms for the proposition that “simply carrying the political card of the opposition party, alone, does not satisfy the significant burden of raising a claim for retaliation based on political association.” Reply (QI). The Defendants assert that Walton has alleged only that she was a Republican, that she worked as both an exempt and classified employee with the Lyons Administration, and that, based on those two facts alone, “there is no clearly established law which would have informed Commissioner Powell,” at the time he approved the RIF, “that he was violating Plaintiffs First Amendment Rights of political association.” Reply (QI) at 5.
3. Hearings on April 9 and 10, 2014.
The Court held hearings on April 9 and 10, 2014. At the April 9, 2014, hearing, the Court heard arguments on the NMHRA and Title VII retaliation claims, and on the political affiliation claim, see Transcript of Hearing at 46:15-102:6 (taken the morning of April 9, 2014)(Hatcher, Hardwick, Court)(“April 9 Morning Tr.”); Transcript of Hearing at 1:2-24:7 (taken the afternoon of April 9, 2014)(Hatcher, Hardwick, Court)(“April 9 Afternoon Tr.”), and at the April 10, 2014, hearing, the Court heard arguments on the WPA claim and the qualified immunity defense, see Transcript of Hearing at 1:11-22:25, 35:16-51:10 (taken April 10, 2014)(Hatcher, Hardwick, Court)(“April 10 Tr.”). 88
At the April 9, 2014, hearing, the Defendants argued that retaliation claims under the NMHRA and Title VII are evaluated in essentially the same manner, and that each is subject to the McDonnell Douglas burden-shifting analysis. 89 See April 9 Morning Tr. at 57:10-57:22 (Hatcher). The Defendants argued that Walton did not engage in protected opposition to discriminatory activity, because Bearden’s behavior was “at best ... colorful talk” and at worst “inappropriate trash talk,” and that Bearden’s statements were not directed at Walton personally. April 9 Morning Tr. at 58:6-59:7 (Hatcher). The Defendants argued that, under Petersen v. Utah Department of Corrections, 301 F.3d at 1182 , Walton must have complained of an actual Title VII violation, see April 9 Morning Tr. at 60:24-61:5 (Hatcher, Court). When the Court noted that Petersen was not a retaliation case, the Defendants maintained that the standard from Petersen should still apply in the retaliation context. See April 9 Morning Tr. at 61:6-62:7 (Hatcher, Court). The Court directed the Defendants to Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir.2008), for the proposition that merely complaining to human resources about conduct that does not violate Title VII would be protected conduct, but the Defendants maintained that Walton had to report actual discriminatory behavior to engage in protected activity, see April 9 Morning Tr. at 61:10-61:20 (Hatcher, Court); id. at 63:li-63:15 (Hatcher, Court).
The Defendants also argued that there was no causal connection between Walton’s *967 termination and any protected conduct, because Olah designed the RIF and Powell approved it before Walton reported Bear-den’s conduct to Britt. See April 9 Morning Tr. at 64:2-64:21 (Hatcher). The Defendants additionally argued that there is no evidence that the RIF was pretextual, and that the Court “should not second-guess a proffered business or nondiscriminatory decision made by” an employer, because there is no “nonspeculative evidence of discrimination” in the record. April 9 Morning Tr. at 68:15-68:23 (Hatch-er). In addressing Walton’s argument that other divisions within the Land Office had two General Manager I positions, the Defendants noted that the other division— the Oil and Gas Division—is much larger than the Commercial Resources division, where Walton worked. See April 9 Morning Tr. at 69:20-70:19 (Hatcher, Court)(“[T]he oil and gas division generates revenues of 500 million dollars a year. The commercial resources 6 million.”). The Defendants addressed Walton’s argument that the Land Office did not provide her a right of first refusal by arguing that Lopez, who allegedly violated Walton’s right of first refusal, did not “have anything to do with the RIF” and that, at that time, there were not any open positions that were hiring. April 9 Morning Tr. at 71:11-71:25 (Hatcher). The Defendants also addressed the cat’s paw theory by arguing that there is nothing to support it other than the fact that Olah was Lopez’ supervisor on an organizational chart. See April 9 Morning Tr. at 72:9-72:24 (Hatch-er, Court). The Defendants argued that, even if Lopez had a discriminatory intent against Walton, there must be something other “than just organizational structure to create a reasonable inference” that Olah was influenced by Lopez, because there “is no evidence of Lopez feeding any information” to Olah. April 9 Morning Tr. at 88:22-89:19 (Hatcher, Court); id. at 96:4-96:7 (Hatcher, Court).
Walton responded to the Defendants’ argument that protected activity requires an actual violation by arguing that “it’s just plain wrong,” because opposition “activity is protected even when it is based on a mistaken good faith belief that Title VII has been violated.” April 9 Morning Tr. at 79:19-80:11 (Hardwick). Walton additionally argued that “a lot of’ Bearden’s conduct “would constitute actionable harassment.” April 9 Morning Tr. at 82:3-82:12 (Hardwick). In addressing the causal connection requirement, Walton argued that, because Walton verbally reported Bearden to Britt before April, 2011, and because Land Office policy required Britt to take the complaints to Lopez, whom Olah supervised, a jury could reasonably infer that Olah knew of the complaints. See April 9 Morning Tr. at 82:12-83:3 (Hardwick). Walton argued that “there is ample evidence ... from which the jury could conclude that the RIF was a pretext.” April 9 Morning Tr. at 85:10-85:13 (Hardwick). Specifically, Walton argued that, in Olah’s deposition, “she admitted that she did not explore other” alternatives in carrying out the RIF and that there “were other options available,” which could lead a jury to conclude that Olah’s reasons for terminating her position were pretextual. April 9 Morning Tr. at 85:21-86:9 (Hardwick). Walton argued that there were “three or four other alternatives available” to the Land Office that did not involve terminating Walton’s position, and, in addition, that the Land Office could have transferred her to one of the vacant positions within the Land Office. April 9 Morning Tr. at 85:10-85:18 (Hardwick).
Concerning the WPA claim, the Defendants argued that a WPA claim requires disclosure of protected information, which the WPA defines as “the disclosure of an *968 unlawful or improper act,” and that the WPA requires disclosure of something more than “a workplace personality dispute or complaints about workplace subordinates,” and “bad behavior.” April 10 Tr. at 2:12-3:15 (Hatcher). The Defendants repeated arguments from their Reply that the WPA does not protect reporting complaints if the reporting is part of an employee’s job duties, and that Walton’s job duties required her to “work with subordinates” and to “try to remedy inappropriate behavior.” April 10 Tr. at 5:7-5:22 (Hatcher). The Defendants also argued that there is a problem with “any causal connection between the reporting of’ Bearden and “the RIF itself,” because only Britt and Lopez knew of Walton’s complaints, and “there is absolutely nothing in the record ... to suggest that” Olah or Powell had any knowledge of Walton’s complaints. April 10 Tr. at 6:12-6:24 (Hatcher). The Defendants again argued that Walton’s electronic mail transmissions and memoranda to Britt were all delivered after the decision to terminate Walton’s position had been made. See April 10 Tr. at 6:24-7:14 (Hatcher).
Walton responded by arguing that the Defendants moved for Summary Judgment on the WPA claim solely “on the grounds that Ms. Walton did not make a protected communication,” and not “on the grounds that there was a valid business justification,” that “there was no causal connection,” or that “reporting was within her official duties.” April 10 Tr. at 10:13-10:22 (Hardwick). Walton addressed the argument that reporting Bearden’s conduct was within her official duties by arguing that the Defendants’ argument “suffers from a fatal flaw, as the” United States Court of Appeals for the Federal Circuit “recently acknowledged its narrow interpretation of the” Federal Whistleblower Protection Act, 5 U.S.C. § 2302—that it does not apply to reporting within an employee’s official duties—has recently “been definitively overruled by Congress.” April 10 Tr. at 10:23-12:19 (Hardwick). Walton additionally argued that the WPA protects reporting a “violation of a state administrative rule,” and that the Land Office has “a sexual harassment and discrimination policy,” which Bearden’s “racially insensitive comments vk)late[d].” April 10 Tr. at 13:5-13:20 (Hardwick). Walton further argued that “there has been no showing that Ms. Walton didn’t in good faith believe that Ms. Bearden was making comments that violated the State Land Office’s harassment and discrimination policy.” April 10 Tr. at 13:21-12:24 (Hardwick). As for causation, Walton argued that “there is evidence upon which the jury could reasonably infer that Ms. Lopez communicated with Ms. Olah about [Walton’s] complaint.” April 10 Tr. at 14:6-14:13 (Hardwick). Specifically, Walton argued that she verbally complained to Britt in February and- March, 2011, which was before Powell approved the RIF. See April 10 Tr. at 14:10-15:1 (Hardwick). When asked by the Court whether the McDonnell Douglas analysis should be applied to the WPA, Walton stated that she did not agree or disagree that the analysis should be used, and stated that the WPA is silent regarding whether “courts should or shouldn’t use the McDonnell Douglas framework.” April 10 Tr. at 16:1-17:18 (Hardwick, Court).
Concerning the political affiliation claim, the Defendants argued that a political affiliation claim requires more than “mere knowledge of political affiliation.” April 9 Afternoon Tr. at 2:25-3:8 (Hatcher). The Defendants addressed Powell’s statements at the April 14, 2011, meeting, by arguing that Powell was referring to employees who “bypassed the chain of command in the [Lyons] administration,] [a]nd were able to get things done without going *969 through the normal chain of command.” April 9 Afternoon Tr. at 3:20-4:16 (Hatch-er). The Defendants argued that, when asked whether he was referring to Walton at the meeting, Powell answered that he was not. April 9 Afternoon Tr. at 4:20-4:23 (Hatcher). The Defendants contended that Powell had knowledge of Walton’s political history with Lyons, but that “there is nothing attributable to Mr. Powell that would show any type of intent to retaliate against Ms. Walton based on ... her political association.” April 9 Afternoon Tr. at 6:8-6:19 (Hatcher). The Defendants addressed Dickeson by arguing that, in that case, the defendant-sheriff publicly stated that anyone who supported his challenger would be fired, which involved direct comments and direct statements, “showing an intent to retaliate based” on the plaintiffs political affiliation. April 9 Afternoon Tr. at 7:5-7:25 (Hatch-er). The Defendants argued that the present case is more in line with Nelms , because Powell was aware only of Walton’s political affiliation, which is insufficient to support a political affiliation retaliation claim. April 9 Afternoon Tr. at 8:1-9:12 (Hatcher). The Defendants agreed with the Court that circumstantial evidence could be sufficient to survive summary judgment, but argued that mere knowledge of a political affiliation should not survive summary judgment. See April 9 Afternoon Tr. at 10:4-12:20 (Hatcher, Court). Addressing the Barker report, the Defendants contend that it is insignificant that Powell testified that he thought Barker was the gold standard of investigative reporting and that he had no reason to disbelieve the story when he watched it, because at the time he watched the report in November, 2010, he would not have had any reason to disbelieve the report. See April 9 Afternoon Tr. at 18:24-19:12 (Hatcher). The Defendants argued that there is no evidence to show that Powell, Lopez, or any other Land Office employee believed Walton was unqualified for her General Manager I position after they started working with her. See April 9 Afternoon Tr. at 18:24-19:12 (Hatcher).
Walton responded by arguing that there “is much more” than mere knowledge of Walton’s political affiliation, which makes the case different than Nelms . April 9 Afternoon Tr. at 14:3-14:12 (Hardwick). Walton argued that Powell believing the Barker report; Powell placing a note on her office door, stating that it was reserved for Britt; Powell and Relkin making faces and rolling their eyes when she made presentations; and the April 14, 2011, meeting all provide evidence of retaliation based on her political affiliation. April 9 Afternoon Tr. at 14:13-15:10 (Hardwick). Walton addressed Powell’s testimony that he was not referring to Walton during the April 14, 2011, meeting, by arguing that the “jury doesn’t have to believe” Powell and it is “reasonable to infer” that Powell was talking about Walton, because during the Lyons administration, “Walton got her direction directly from Mr. Lyons to process her own personnel action through the state personnel office, bypassing Sandra Lopez.” April 9 Afternoon Tr. at 15:3-15:21 (Hardwick).
Concerning qualified immunity, the Defendants argued that Powell denies that he knew that Walton was a Republican at the time he approved the RIF, and the Defendants argued that there “is nothing” in the record that shows that Powell knew Walton was a Republican. See April 10 Tr. at 36:15-36:19 (Hatcher). The Defendants further argued that there is no evidence to show that Powell knew that Walton was a political hire, that she supported the Republican Party, or that she campaigned for Lyons. See April 10 Tr. at 36:19-37:17 (Hatcher). The Defendants argued that there is no clearly established law that *970 being hired as an exempt employee “equates” to being “a political hire.” April 10 Tr. at 37:21-38:9 (Hatcher). When asked whether it would be adequate for Walton to contend that she was terminated because she was closely aligned with Lyons, the Defendants argued that there would be no First Amendment claim, because her “politics” were not being used to retaliate against her. April 10 Tr. at 39:12-40:7 (Hatcher, Court). The Defendants argued that “political association by the interpretation in the case law means discrimination on the basis of political association with some allegiance to political ideas.” April 10 Tr. at 47:9-47:22 (Hatch-er). The Defendants contended that, if “mere association as defined by the plaintiff, such as just being a Republican in a prior administration,” led to a political affiliation claim, it would open “the floodgates to litigation, because anyone who was on the opposite political party once a new administration came in and was let go, would have a lawsuit.” April 10 Tr. at 48:8-48:15 (Hatcher).
Walton responded by arguing that “an association is sufficient” to bring a First Amendment claim and that Powell was not required to know “what Ms. Walton’s politics” were, but instead only that she was “politically associated with the Lyons administration.” April 10 Tr. at 41:11-41:24 (Hardwick). Walton argued that Powell was aware of her political association with the Lyons administration, because of the Barker report, the Hemphill letter, and the picture she had in her office of Lyons. See April 10 Tr. at 41:12-42:15 (Hardwick, Court). Walton contended that, if “Powell made the decision to RIF her,” and “her association with Commissioner Lyons was a substantial or motivating factor” in that decision, then Walton’s “First Amendment association rights” would be violated. April 10 Tr. at 43:8-43:13 (Hardwick). Walton directed the Court to a number of cases that she cited in her Response (QI) to show that it is “very clear under Tenth Circuit precedent that Ms. Walton has a clearly established right to be associated with Commissioner Lyons.” April 10 Tr. at 43:14-45:8 (Hardwick). Walton directed the Court to the Defendants’ Reply (QI) to argue that the Defendants “concede that at the time of the RIF ... it was clearly established that if a public employer used political association as a substantial or motivating factor” for an “adverse employment action” then “such action would” violate “the employeefs] First Amendment rights,” which Walton argues is “exactly the claim that was pled in this case in paragraph 42 of the Complaint.” April 10 Tr. at 46:2-46:23 (Hardwick).
hi LAW REGARDING SUMMARY ^ JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “ ‘The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed verdict if not controverted at trial.” Celo-tex Corp. v. Catrett, 477 U.S. at 331 , 106 S.Ct. 2548 (Brennan, J., dissenting)(em *971 phasis in original). 90 Once the movant meets this burden, rate 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324 , 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238 , 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (citation omitted)(internal quotation marks omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123-JAR, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liber *972 ty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., mi U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 . Second, the ultihiate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505 . Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 .
There are, however, limited circumstances in which the court may disregard a party’s version of the facts. This doctrine developed most robustly in the qualified, immunity arena. In Scott v. Harris, 550 U.S. 372 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81 , 127 S.Ct. 1769 . The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986)(footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of *973 ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have v

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7226897. Public record. Not legal advice.