Sinfuego v. Curry Cnty. Bd. of Cnty. Commissioners

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 121)("Motion"). The Court held a *1188 hearing on September 25, 2018. The primary issues are: (i) whether Board of County Commissioners of Curry County, New Mexico ("Curry County") violated Plaintiff Amanda Sinfuego's First Amendment to the Constitution of the United States of America rights to freedom of speech, to petition for redress of grievances, and to freedom of association when Sinfuego's employment with Curry County Detention Center ("Curry Detention") was terminated after she petitioned Defendant Lance Pyle, the Curry County Detention Manager, about workplace conditions; met with Pyle about collective bargaining and workplace concerns; texted Curry County Detention Officers ("Curry Officers") notifying them that Pyle wanted to speak with them individually to prevent collective bargaining; signed the Petition from the Curry Officers to Administrator Tori Sandoval at 1, filed June 27, 2018 (Doc. 125-10)("Petition from Curry Officers to Sandoval"), and reported sexual harassment; (ii) whether Curry County took adverse employment actions against Sinfuego when it terminated her employment, removed her from the Special Operations Response Team ("S.O.R.T."), gave her night shifts and shifts in the women's annex, and interfered with her ability to choose her shifts; (iii) whether the Court should find Curry County liable for violating Sinfuego's First Amendment rights when Curry County had no custom dictating retaliation against union activities; (iv) whether Curry County violated the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. § 10 -16C-3(A) ("NMWPA"), when it terminated Sinfuego after she complained about Pyle attempting to meet individually with Curry Officers seeking to create a union. Regarding Sinfuego's First Amendment claims, the Court concludes that: (i) Sinfuego's activities related to safety at Curry Detention touch matters of public concern, but Sinfuego's actions and statements related to pay, unionizing, shift bids, and sexual harassment do not involve public concerns; (ii) a jury could find that Curry County engaged in adverse employment actions when it terminated Sinfuego and removed her from S.O.R.T. but not that Curry County took adverse employment actions when it interfered with Sinfuego's ability to choose her shift, and assigned her to the night shift and women's annex; (iii) Sinfuego has not demonstrated a genuine question of fact whether Sinfuego's activities motivated Curry County's actions; and (iv) Sinfuego has not established a genuine question of fact whether Curry County terminated Sinfuego's employment, because she engaged in inappropriate sexual conversations and drawings during work hours in violation of the Curry County sexual harassment policy. Sinfuego has also not established a genuine factual question whether Curry County had a practice of retaliating against individuals engaged in union activities. Having resolved all of Sinfuego's federal claims, the Court will dismiss the state law claims without prejudice.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in the Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment, filed June 12, 2018 (Doc. 122)("Memo."); in the Plaintiff Amanda Sinfuego's Response to "Defendant Curry County's Motion for Summary Judgment" and "Memorandum Brief in Support of Defendant Curry County's Motion for Summary Judgment" [Doc. 121-122], filed June 27, 2018 (Doc. 125)("Response"); and in the Reply Brief in Support of Defendant Curry County's Motion for Summary Judgment at 2, filed July 13, 2018 (Doc. 127)("Reply"). Curry Detention hired Sinfuego on August 16, 2010. See Memo. ¶ 1, at 2 (asserting this fact)(citing Deposition of Amanda Sinfuego at 29:8-30:4 (taken April 20, 2018), filed June 12, *1189 2018 (Doc. 122-1)("Sinfuego Depo. Doc. 122-1") ). 1 2 On October 15, 2012, Gerry Billy, the Curry Detention Administrator in 2012, appointed Sinfuego as the Interim Executive Secretary, an administration and management position -- not a Curry Officer position. See Memo. ¶ 2, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 72:5-73:6; id. at 75:3-15 ); Response ¶ 1, at 1 (admitting this fact).

On November 16, 2012, Curry Officers sent the Memorandum to County Administration (dated Nov. 16, 2012), filed June 12, 2018 (Doc. 122-2); the Memorandum to County Administration is a petition, which Sinfuego did not sign, because she held the Interim Executive Secretary position. See Memo. ¶ 3, at 2 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 97:19-25; id. at 103:14-104:22 ; Memorandum to County Administration at 1-2); Response ¶ 1, at 1 (admitting this fact). The Memorandum to County Administration was sent "[o]n behalf of all detention officers, who currently work in the Curry County Adult Detention Center of Clovis New Mexico." Memo. ¶ 3, at 2 (asserting this fact)(citing Memorandum to County Administration at 1). 3 In the Memorandum to County Administration, the Curry Officers ask for a pay raise, complain about work conditions, and discuss unionizing. See Memo. ¶ 4, at 2 (asserting this fact)(citing Memorandum to County Administration at 1). 4 The Curry Officers, for instance, state: "We the workers are organizing to negotiate terms of working conditions vacation and pay," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at 1); 5 and they also state: "We have looked into contacting and forming a union which can delegate on our behalf if necessary," Memo. ¶ 4, at 2 (asserting this fact)(quoting Memorandum to County Administration at 1). 6 Regarding the work environment, the Curry Officers complain:

*1190 "Every day we step into an environment of danger where in the past three months four Officers have been assaulted," Response ¶ 2(i), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact); and the Curry Officers further state: "Poor leadership is reflected by the county manager and Commissioners who only seem to collect their 100,000 plus wages," Response ¶ 2(ii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact). Finally, the Curry Officers threaten: "We will be contacting the newspapers and making our plea public and only do that so our plight will not be ignored." Response ¶ 2(iii), at 1 (asserting this fact)(quoting Memorandum to County Administration at 1); Reply at 2 (admitting this fact).

On December 3, 2012, Sinfuego and Curry Officer Rene Garcia met with Pyle about the Curry Officers' concerns. See Memo. ¶ 5, at 1 (asserting this fact). 7 At the meeting, Pyle noted that Sinfuego, as the Interim Executive Secretary, was "considered part of management," and thus Pyle would not treat her as representing the Curry Officers. Memo. ¶ 5, at 3 (asserting this fact)(citing Transcript of Conference with Lance Pyle, Amanda Sinfuego, and Rene Garcia on December 3rd, 2012 at 1:14-25 (taken Dec. 3, 2012), filed June 12, 2018 (Doc. 122-2)("Conf Tr.") ). 8 Sinfuego informed Pyle that she would be returning to her position as a Curry Officer. See Response ¶ 3(i), at 2 (asserting this fact)(citing Conf. Tr. at 1:20). 9 At the meeting, Garcia did most of the talking. See Memo. ¶ 6, at 3 (asserting this fact). 10 Garcia, Sinfuego, and Pyle discussed the *1191 Curry Officers' concerns about safety, including attacks on Curry Officers and the ratio of Curry Officers to inmates. See Response ¶¶ 3(ii)-(iii), at 2 (asserting this fact)(citing Conf. Tr. at 4:17; id. at 5:15-17 ; id. at 6:15-18 ; id. at 8:4-12 ). 11 Garcia explained to Pyle that the Curry Officers' "main concern [is] just [their] safety," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 4:17); 12 that a couple days earlier there "was one person in [the] facility for 200 inmates," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 5:15-17); 13 that "the facility [was] not accommodating for safety and security," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 6:15); 14 and that "there have been a number of attacks on us once again because there is understaff[ing]," Reply at 3 (asserting this fact)(quoting Conf. Tr. at 8:3-12). 15 Sinfuego stated: "[E]veryone is looking toward going to collective bargaining." Response ¶ 3(v), at 2 (asserting this fact)(quoting Conf. Tr. at 11:18-24). 16 Pyle told Sinfuego and Garcia: "We are open to meet as a group, individually, and let [the Curry Officers] know, it's an open door policy and they can contact me and I can meet with them in the evening or weekends if need[ed]." Memo. ¶ 6, at 3 (asserting this fact)(quoting Conf. Tr. at 12:4-6). 17 Curry Detention had a policy deterring employees *1192 to "jump management" and communicate directly with Pyle. Response ¶ 4(ii) (quoting Sinfuego Depo. Doc. 125-7 at 114:20-21). 18

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

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

Memo. ¶ 8, at 3-4 (asserting this fact)(quoting Letter from Lance Pyle to Rene Garcia at 1 (sent Dec. 4, 2012), filed June 12, 2018 (Doc. 122-2) ). 20 Pyle wanted the employees to know that unionizing was not in their best interests. See Response ¶ 3(x), at 3 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Comm'rs , D-905-CV-0201400420, Transcript of Trial on Merits at 235:19-22, (Ninth Judicial District Court, County of Curry, State of New Mexico)(taken July 28, 2016), filed June 27, 2018 (Doc. 125-5)("Trial Tr.") ). 21 Sinfuego believed that Pyle "wanted to just stop this, stop this whole possible unionization"

*1193 and that Curry Officers feared Pyle. Memo. ¶ 7, at 3 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 120:9-22). 22 "[D]etention officers came to Ms. Sinfuego and told her they did not want to meet with the County Manager because it could cost them their jobs." Response 5(ii), at 4 (asserting this fact)(citing Deposition of Amanda Sinfuego at 34:1-10 (taken April 20, 2018), filed June 27, 2018 (Doc. 125-7)("Sinfuego Depo. Doc. 125-7") ). 23 "People lost their jobs for simple things. That was the reason why no one went to him individually." Response ¶ 5(ii), at 4 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 34:1-10). 24

On December 6, 2012, Pyle informed Billy via email that Pyle learned through Sinfuego that the Curry Officers refused to meet with Pyle. 25 See Memo. ¶ 9, at 4 (asserting this fact)(citing Email from Lance Pyle to Gerry Billy at 1 (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2) ). Pyle wrote:

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

*1194 See Memo. ¶ 9, at 4 (asserting this fact)(quoting Email from Lance Pyle to Gerry Billy at 1). 26 Billy informed Pyle that Sinfuego filled a temporary position and would be reassigned to a position not in an administrative role. See Response ¶ 3(vi) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle (sent Dec. 6, 2012), filed June 12, 2018 (Doc. 122-2) ); id. ¶ 7 (iii) (asserting this fact)(citing Email from Gerry Billy to Lance Pyle). 27

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

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

Memo. ¶ 10, at 4-5 (asserting this fact)(citing Email from Lance Pyle to Steve Doerr at 1 (sent Dec. 13, 2012), filed June 12, 2018 (Doc. 122-2)("Pyle Email") ). See Response ¶ 8, at 5 (admitting this fact). 28 Sinfuego believed that Pyle sent the letters "to scare everyone" and to prevent them from unionizing by saying "he wanted to fix things." Memo. ¶ 11, at 5 (asserting this fact)(quoting Sinfuego Depo. Doc. 122-1 at 143:15-16; id. at 148:17 and citing Sinfuego Depo. Doc. 122-1 at 143:14-23; id. at 144:21-145:2 ; id. at 146:14-147:8 ; id. at 148:6-149:17 ). 29 Sinfuego acted improperly by sending the text message during work *1195 hours. See Memo. ¶ 12, at 5 (asserting this fact)(citing Deposition of Gerry Billy at 91:22-92:3 (taken April 29, 2018), filed June 12, 2018 (Doc. 122-2)("Billy Depo. Doc. 122-2"); id. at 99:24-100:5 ). 30

On December 7, 2012, Stephen Doerr, the County Attorney, emailed Billy about the December 6, 2012, text message. See Memo. ¶ 13, at 5 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 2:19 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 2:19 P.M. Email") ); Response ¶ 1, at 1 (admitting this fact). Doerr wrote that Sinfuego had sent the communication "during work hours," that "her communication needs to stop," and that Billy "should also review the County policy and determine whether or not disciplinary action against Ms. Sinfuego is appropriate." Memo. ¶ 13, at 5 (asserting this fact)(quoting Doerr Email at 1); Response ¶ 1, at 1 (admitting this fact). Doerr assumed that Sinfuego spoke for Billy. See Response ¶ 3(viii), at 3 (asserting this fact)(citing Doerr 2:19 P.M. Email at 1). 31 Doerr later stated: "There were erroneous and false statements in that text, and the statement regarding the Admin support needs to be addressed." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Stephen Doerr to Gerry Billy at 1 (sent Dec. 7, 2012 at 3:09 P.M.), filed June 12, 2018 (Doc. 122-2)("Doerr 3:09 P.M. Email") ). 32 Billy responded that he addressed the matter, and it was "time to move on." See Response ¶ 3(viii), at 3 (asserting this fact)(citing Email from Gerry Billy to Steve Doerr at 1 (sent Dec. 7, 2012 at 3:19 P.M.), filed June 12, 2018 (Doc. 122-2) ). 33 Billy subsequently *1196 verbally "counseled" Sinfuego, which he considered discipline and "the right thing to do," and Sinfuego neither received further discipline nor sent another text about the union during work hours. Memo. ¶ 14, at 6 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 102:23-104:10; id. at 106:4-20 ; id. at 108:25-109:16 ). See Response ¶ 1, at 1 (admitting this fact).

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

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

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

Memo. ¶ 15, at 6 (asserting this fact)(internal quotation marks omitted)(quoting Pyle Email at 1). See Response ¶ 1, at 1 (admitting this fact). At the time Pyle sent this email, he did not know that Billy had verbally counseled Sinfuego or that Assistant County Manager, Connie Harrison, had given him erroneous information about Sinfuego distributing material again on December 10, 2012. See Memo. ¶ 16, at 6 (asserting this fact)(citing Affidavit of Lance Pyle ¶ 3, at 1 (dated June 12, 2018), filed June 12, 2018 (Doc. 122-2)("Pyle Aff."); Billy Depo. Doc. 122-2 at 117:5-122:16). 34 After receiving the email, Billy did not further discipline Sinfuego, because "he had 'already taken care of it.' " Memo. ¶ 16, at 6-7 (asserting this fact)(quoting Billy Depo. Doc. 122-2 at 117:5-122:16). 35 Pyle thought that Billy *1197 mishandled the situation and wanted "something done about Billy." Response ¶ 11(ii), at 6 (quoting Trial Tr. at 237:6-11). 36 Billy learned, on January 7, 2013, when his contract was due for renewal, that Curry County would not renew his contract as the Curry Detention Administrator, and Billy believed his decision not to discipline Sinfuego further influenced Curry County's decision. See Memo. ¶ 17, at 7 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 19:1-7; id. at 22:19-23:5 ). 37 A jury found that Billy's refusal to further discipline Sinfuego motivated Curry County not to renew his contract. See Response ¶ 12(i), at 7 (asserting this fact)(citing Billy v. Curry Cty. Bd. of Cty. Comm'rs , D-905-CV-2014-00420, Special Verdict at 1 (Ninth Judicial District, County of Curry, State of New Mexico), filed in state court June 18, 2016, filed in federal court June 27, 2018 (Doc. 125-6) ). 38

Curry County appointed Tori Sandoval 39 as the Interim Curry Detention Administrator. See Memo. ¶ 17, at 7 (asserting this fact)(citing Deposition of Tori Sandoval at 1 (taken April 19, 2018), filed June 12, 2018 (Doc. 122-2)("Sandoval Depo. Doc. 122-2") ). 40 Sheila Morrison, whom Pyle had asked Billy to fire, and *1198 Keith Farkas were transferred to different positions after Billy's departure. See Response ¶ 13(i), at 7 (asserting this fact)(citing Shiela Morrison Testimony at 76:13-24 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-8); id. at 77:1-5 ; id. at 77:12-14 ; id. at 77:18-24 ; Keith Farkas Testimony at 68:3-4 (taken July 27, 2016), filed June 27, 2018 (Doc. 125-9); id. at 68:7-18 ; Deposition of Gerry Billy at 170:1-21 (taken April 29, 2018), filed June 27, 2018 (Doc. 125-11)("Billy Depo. Doc. 125-11") ). 41 Farkas "was treated like a 'leper.' " Response ¶ 13(ii), at 7 (asserting this fact)(quoting Keith Farkas Testimony at 128:8-10). 42 After Sandoval's appointment, Sinfuego was removed from S.O.R.T., in which she worked as the female training officer, was put on the night shift, and was assigned to the women's annex. See Memo. ¶ 18, at 7 (asserting these facts)(citing Sinfuego Depo. Doc. 122-1 at 154:9-158:1). 43 Sinfuego had seniority over twenty-nine people. See Response ¶ 11(iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:23). 44 "Seniority was thrown [out] the *1199 window," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:21-22); 45 Sinfuego "was made an example," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:25), 46 and treated like a "leper," Response ¶ 11(iv), at 6 (asserting this fact)(Sinfuego Depo. Doc. 126-7 at 154:24-25). 47 Sinfuego joined a night shift with new people and could not choose her shift wherever she was needed. See Response ¶ 11(iv), at 6 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 155:1-25; id. at 295:3-15 ). 48 Billy believed that "[p]lacing someone on midnight shift and stripping them of duties is retaliatory" and that management retaliated against Sinfuego. See Response ¶ 11(vi), at 6 (asserting this fact)(citing Billy Depo. Doc. 125-11 at 166:7-14; id. at 170:25-171:3 ; id. at 171:8 ). 49 *1200 Pyle was not involved in determining Sinfuego's shift assignments or role in S.O.R.T. See Memo. ¶ 19, at 7-8 (asserting this fact)(citing Pyle Aff. ¶ 4, at 1; Sandoval Depo. Doc. 122-2 at 26:20-27:7). 50 Sinfuego signed a petition to Sandoval about shift bidding, see Response ¶ 14(iii) at 8 (asserting this fact)(citing Petition from Curry Officers to Sandoval at 1), 51 but Sinfuego did not discuss her union activities with Sandoval and Sandoval had no knowledge about such activities until the lawsuit, see Memo. ¶ 19, at 7 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 *1201 at 134:23-135:5; Sandoval Depo. Doc. 122-2 at 16:14-24). 52 On September 4, 2013, Sandoval and Pyle signed a performance evaluation, on which Sinfuego received at least a "3" (Satisfactory) in every category and a total of "3.625." See Memo. ¶ 20, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 167:2-169:11; id. at 171:5-10 ; Performance Evaluation at 1-5 (dated Sept. 4, 2013), filed June 12, 2018 (Doc. 122-2) ); Response ¶ 1, at 1 (admitting this fact).

On November 15, 2013, Sinfuego informed Garcia about a conversation with Curry Officer Dustin Hughes that occurred during the night of November 12 and 13, 2013, and before Curry Officers Janie Yearley and Dustin Davis. See Memo. ¶ 21, at 8 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 171:11-172:23). 53 Garcia requested that Sinfuego make a statement about the conversation, which Sinfuego did. See Response, ¶ 15(i), at 8 (asserting this fact)(citing Statement from Rene Garcia at 1 (dated Nov. 15, 2013), filed June 27, 2018 (Doc. 125-15) ). 54 See also Statement of Amanda Sinfuego at 1 (dated Nov. 15, 2013), filed June 12, 2018 (Doc. 122-2). Yearley gave a statement about the conversation on November 20, 2013. See Response ¶ 15(ii), at 8 (asserting this fact)(citing Statement of Janie Yearley at 1 (dated Nov. 20, 2013), filed June 27, 2018 (Doc. 125-16) ). 55 The conversation began when Sinfuego stated that the restroom *1202 was filthy and that "there was pubes on the toilet seat," and the discussion turned to Hughes commenting on his personal grooming habits and sexual preferences. See Memo. ¶ 22, at 8 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1 and citing Sinfuego Depo. Doc. 122-1 at 175:16-24). See Response ¶ 1, at 1 (admitting this fact). Hughes stated: "Well, it can't be my pubes. I keep my balls, gooch and asshole shaved." Memo. ¶ 22, at 7 (asserting this fact)(quoting Statement of Amanda Sinfuego at 1). See Response ¶ 1, at 1 (admitting this fact).

Responding to the report, Lindsay Schwebke, the Curry County Personnel Coordinator, interviewed Sinfuego, Hughes, Yearley, and Davis. See Memo. ¶ 23, at 8-9 (asserting this fact). 56 Hughes told Schwebke in a December 3, 2013, interview that, during the conversation on November 13, 2013, Sinfuego brought up "porn stars." Memo. ¶ 24, at 9 (asserting this fact)(quoting Interview of Dustin Hughes at 1-2 (dated Dec. 3, 2013), filed June 12, 2018 (Doc. 122-3) ). 57 In a statement, Yearley commented: "Officer Hughes was bragging to Officer Davis about 'bleaching his [anus]' Officer Sinfuego said whoa that's to [sic] much information." Response ¶ 15(ii), at 8 (asserting this fact)(quoting Statement of Janie Yearley at 1). 58 Sinfuego, in an interview with Schwebke on December 4, 2013, admitted that she asked, in response to Hughes statements about his grooming habits: "How porn stars do it?" Memo. ¶ 25, at 9 (asserting this fact)(quoting Interview of Amanda Sinfuego at 6 (taken Dec. 4, 2013), filed June 12, 2018 (Doc. 122-3) and citing Sinfuego Depo. Doc. 122-1 at 204:25-207:19). 59 Sinfuego asked the question in a *1203 "sarcastic manner." Response ¶ 17(v), at 9 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 220:8-12). 60 Sinfuego did not start or encourage the conversation, see Response ¶ 17(i), (iv) (asserting this fact)(citing Posttermination Hearing Reporter's Record at 89:24-25 (dated Feb. 19, 2016), filed June 27, 2018 (Doc. 125-14)("Posttermination Hearing Reporter's Record Doc. 125-14"); id. , at 90:1 ; id. at 95:5-18 ), 61 and the conversation did not interfere with her co-workers' work, see Response ¶ 17(iii) (asserting this fact)(citing Posttermination Hearing Reporter's Record Doc. 125-14 at 89:15-17). 62

Hughes also informed Schwebke that Sinfuego sent Snapchat 63 images with "pictures of people drawing like [penises and balls] and stuff on it" during a "Toxic Talk" 64 employee training. See Memo.

*1204 ¶ 23, at 9 (asserting this fact)(citing Interview of Dustin Hughes at 2-3 (taken Nov. 26, 2013), filed June 12, 2018 (Doc. 122-2); Sinfuego Depo. Doc. 122-1 at 210:5-7). 65 Sinfuego admitted that she took a picture of Davis and edited the picture to "draw him where [his] chair looked like a penis," and that doing so was not appropriate or acceptable. Memo. ¶ 25, at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 122-1 at 207:20-212:18). 66 Davis laughed at the picture, and Sinfuego shared the picture with "two other co-workers who laughed." Response ¶ 16(i), at 9 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 231:18-22; id. at 299:1-21 ). 67

Schwebke reported the investigation to Sandoval. See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke (dated Dec. 16, 2013), filed June 12, 2018 (Doc. 122-3) ). 68 Schwebke explained that Sinfuego admitted to the conversation with Hughes, including stating that " 'there were pubes' and 'a really long pubic hair,' " to sending the picture of Davis, and to "show[ing] [Davis] different people and the teacher, just drawing penises and stuff like that." See Memo. ¶ 26, at 10 (asserting this fact)(citing Memorandum from Lindsay Schwebke at 2). 69

*1205 Schwebke's report did not discuss Yearley's statement. See Response ¶ 26(iii), at 10 (asserting this fact)(citing Statement of Janie Yearley at 1). 70 After reviewing the report, Sandoval sent, on December 17, 2013, Sinfuego a "Letter of Intent to Terminate Employment with Curry County." See Memo. ¶ 27, at 10 (asserting this fact)(citing Letter of Intent to Terminate Employment with Curry County from Tori Sandoval to Lindsay Schwebke at 1 (sent Dec. 17, 2013), filed June 12, 2018 (Doc. 122-3)("Letter of Intent to Terminate") ). 71 In the letter, Sandoval wrote:

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

Memo. ¶ 27, at 10 (asserting this fact)(quoting Letter of Intent to Terminate at 2). 72 Sandoval notified Sinfuego that Schwebke would contact her about a pre-determination hearing. See Memo. ¶ 27, at 10 (citing Letter of Intent to Terminate at 2-3). Sandoval based the letter solely on Schwebke's report, see Response ¶ 20(i), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:9-17), 73 and used a *1206 form letter, see Response ¶ 20(ii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 34:20-22). 74 Curry County also terminated Hughes' employment on December 17, 2013. See Memo. ¶ 28, at 10-11 (asserting this fact)(citing Termination of Probationary Employee at 1 (Dec. 17, 2013), filed June 12, 2018 (Doc. 122-2) ); Response ¶ 1, at 1 (admitting this fact).

On December 30, 2013, Sinfuego had a predetermination hearing with Pyle. See Memo. ¶ 29, at 11 (asserting this fact)(Pre-Determination Hearing at 1, filed June 12, 2018 (Doc. 122-3) ). 75 Sinfuego admitted that she engaged in the alleged behavior; she asked Hughes: "Do you mean like how porn stars do it?," Memo. ¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 10:14-21 and citing Sinfuego Depo. Doc. 122-2 at 234:6-235:23), and she "took a picture of another officer, who is a friend" and "drew penises in the picture," Memo. ¶¶ 29-30, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 15:9-12 and citing Sinfuego Depo. Doc. 122-2 at 235:24-237:24). 76 Sinfuego acknowledged *1207 such behavior was inappropriate, see Memo. ¶¶ 29-30, at 11 (asserting this fact)(citing Pre-Determination Hearing at 10:22-24; id. at 16:15-16 ), 77 although she did not admit that she violated the Curry County sexual harassment policy, see Response ¶ 21(i) (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 57:20-25). 78 Sinfuego admitted that she had worked at Curry Detention for three years and had attended two training sessions in the last year. See Memo. ¶ 31, at 11 (asserting this fact)(citing Pre-Determination Hearing at 24:3-13). 79

On January 7, 2014, Pyle terminated Sinfuego's employment. See Memo. ¶ 32, at 11-12 (asserting this fact)(citing Letter from Lance Pyle to Amanda Sinfuego at 4 (dated Jan. 7, 2014), filed June 12, 2018 (Doc. 122-4); Sinfuego Depo. Doc. 122-1 at 241:15-25; id. at 243:14-245:7 ). 80 Pyle concluded:

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

• Failure to follow County Policies, Rules or Regulations

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

• Conduct unbecoming of an employee of Curry County

• Violation of Curry County Workplace Harassment Policy

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

# b. Display of sexually oriented visual items such as calendars, cartoons, photos or posters *1208 # k. Discussing their sexual preference, sexual relationships or even sexual matters seen on TV, YouTube, movies, or other formats including books and magazines

Memo. ¶ 32, at 12 (asserting this fact)(quoting Letter from Lance Pyle to Amanda Sinfuego at 3-4). 81 Curry County Personnel Policy # 10-3 entitled Sinfuego to a post-disciplinary hearing before a neutral, third party and to a District Court of the State of New Mexico's review of that hearing's decision. See Memo. ¶ 33, at 12 (asserting this fact)(citing Curry County Personnel Policy # 10-03 at 28-32 (dated Dec. 7, 2010), filed June 12, 2018 (Doc. 122-4) ); Response ¶ 1, at 1 (admitting this fact). Sinfuego had a first pre-disciplinary hearing on February 19, 2014, with Anne Behl, a Human Resources Consultant. See Memo. ¶ 12 n.5; Post-Disciplinary Hearing Decision -- Amanda Sinfuego at 1 (dated March 4, 2014), filed June 27, 2018 (Doc. 125-17) ). 82 Behl determined that the November 12-13, 2013, conversation with Hughes did not constitute sexual harassment under the Curry County Personnel Policy. See Response ¶ 24(iv), at 13 (citing Post-Disciplinary Hearing Decision -- Amanda Sinfuego at 2). 83 When reviewing this hearing, the district court discovered that the tapes of the hearing were inaudible and remanded the matter for another determination. See Memo. at 12 n.5. 84

Sinfuego had her second post-disciplinary hearing on February 19, 2016, before Bruce Swingle. See Memo. ¶ 34, at 12-13 (asserting this fact)(citing Posttermination Hearing at 1 (taken Feb. 19, 2016), filed June 12, 2018 (Doc. 122-4)("Posttermination *1209 Hearing Reporter's Record Doc. 122-4"). 85 At the hearing, Sinfuego acknowledged that "asking someone if they groomed their private parts the way porn stars do is a sexual question," see Memo ¶ 34, at 2 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 100:13-15 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 100:16), 86 and "taking a picture and then drawing a penis on it and sending it to colleagues is displaying a sexually oriented visual item," see Memo ¶ 34, at 12 (asserting this fact)(quoting Posttermination Hearing Reporter's Record Doc. 122-4 at 102:2-5 and citing Posttermination Hearing Reporter's Record Doc. 122-4 at 102:6). 87 Swingle affirmed Sinfuego's termination and, in his Findings of Fact and Conclusions of Law (dated March 4, 2016), filed June 12, 2018 (Doc. 122-4), Swingle stated his conclusions from the hearing:

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

See Memo. ¶ 35, at 13 (asserting this fact)(quoting Findings of Fact and Conclusions of Law at 5). 88 On Sinfuego's appeal, the Ninth Judicial District Court of the *1210 State of New Mexico upheld Swingle's determination, concluding: "The decision was based on substantial evidence, was within the Hearing Officer's authority, and in accordance with the law." See Memo. ¶ 36, at 13 (asserting this fact)( Sinfuego v. Bd. of Cty. Comm'rs for Curry Cty. , D-905-CV-206-112, Decision & Order on Writ of Certiorari at 5 (Ninth Judicial District Court, County of Curry, State of New Mexico), filed in state court June 13, 2017, filed in federal court June 12, 2018 (Doc. 122-4) ); Response ¶ 1, at 1 (admitting this fact).

Sinfuego was a hard worker. See Response ¶ 22(iii) (asserting this fact)(citing Deposition of Tori Sandoval at 11:13-16 (taken April 19, 2018), filed June 27, 2018 (Doc. 125-12)("Sandoval Depo. Doc. 125-12") ), 89 and Pyle held grudges, see Response ¶ 21(iv), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11, at 170:1-21). 90 Sinfuego observed sexually oriented items at work, see Response ¶ 18, at 10 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 293:20-25), 91 and she engaged in "crude humor" "to get through the day," see Response ¶ 18(iv), at 10 (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 240:19-20 and citing Sinfuego Depo. Doc. 125-7 at 240:12-25; id. at 241:1-2 ; id. at 241:5-6 ). 92 Curry Detention employees *1211 heard bad language while on the job, see Response ¶ 20(iv), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12, at 53:21-25; id. at 54:1-9 ), 93 and banter like that in which Sinfuego participated was common, see Response ¶ 21(iii) (asserting this fact)(citing Billy Depo. Doc. 125-11 at 129:7-10). 94 Hughes came to work intoxicated, grabbed a female officer, and swore at Sinfuego and co-workers. See Response ¶ 27(vi), at 14-15 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7 at 261:24-25; id. at 262:7-14 ). Sandoval knew that Borjas had a relationship with an inmate, see Response ¶ 27(xi), at 15 (asserting this fact)(citing Sandoval. Depo. Doc. 125-12 at 56:2-7). 95 No one complained that Sinfuego's conduct created an offensive or hostile work environment, see Response ¶ 19(iv), at 10 (citing Sandoval Depo. Doc. 125-12 at 52:1-3; id. at 42:6-10 ), 96 or considered her conduct as creating *1212 a "hostile, intimidating or offensive work environment," Response ¶ 20(iii), at 11 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:12-16). 97 When Pyle asked Sinfuego what she thought a fair punishment would be, she replied: "[S]ince there is no prior sexual harassment charges against me, no one has put any harassment charges against me, written, anything, where I have done anything in poor conduct prior to this, I believe it should be a write-up." Memo. ¶ 31, at 11 (asserting this fact)(quoting Pre-Determination Hearing at 23:10-14). 98 Curry County re-hired Richard Benavidez as a lieutenant and, after hiring him, discovered that, during his first period working at Curry Detention, he had stored pornographic material in his locker. See Response ¶ 23(iv), at 12 (asserting that Curry County hired Benavidez)(citing Sandoval Depo. Doc. 125-12 at 59:10-25); Reply at 8 (asserting that Curry County learned about the pornographic material after hiring Benavidez). 99 "One question or comment made during someone else's lengthy discussion of sexual hygiene and activity does not meet the definition of sexual harassment in the Curry County Personnel Policy." Response ¶ 21(i), at 11 (asserting this fact)(citing Sinfuego Depo. Doc. 125-7, at 300:7-12; Billy Depo. Doc. 125-11 at 167:18-25; id. at 168:2-3 ; id. at 168:7-8 ). 100 Billy believed that management should have told Sinfuego "we don't do that" and not written her up for the behavior. See Response ¶ 21(iii), at 11 (asserting this fact)(citing Billy Depo. Doc. 125-11 at *1213 129:11-24). 101 Curry County's policies prohibited retaliation for reporting harassment, and retaliation for such reports "was a ground for disciplinary action." Response ¶ 24(iii), at 13 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 50:22-25; id. at 51:1-7 ). 102

Sinfuego believed "As long as you were good with [Sandoval], as long as you were good with certain people, you can get away scot-free." Response ¶ 27(vii) (asserting this fact)(quoting Sinfuego Depo. Doc. 125-7 at 265:10-13). 103 Curry Detention had crowding and understaffing problems. See Response ¶ 27(x), at 15 (asserting this fact)(citing Sandoval Depo. Doc. 125-12 at 18:8-21). 104 Everyone knew about the bad conditions at the jail and complained about them. See Memo. ¶ 38, at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 81:13-89:9; id. at 272:18-274:24 ). 105 An *1214 anonymous letter was sent asking "why are things not getting done." Response ¶ 27(iv), at 14 (asserting this fact)(citing Sinfuego Depo. Doc. 122-2 at 90:15-24). 106 Sinfuego did not speak with Sandoval about safety and sanitation issues at Curry Detention; Sinfuego spoke with Pyle once, at the December 3, 2012, meeting about conditions at Curry Detention; and no sergeants with whom Sinfuego discussed such matters passed Sinfuego's concerns on to Sandoval or to Pyle. See Memo. ¶ 39, at 15 (asserting this fact)(citing Sinfeugo Depo. Doc. 122-2 at 89:10-94:5). 107 Sinfuego did not speak to Billy about conditions at Curry Detention. See Memo. ¶ 39, at 14 (asserting this fact)(citing Billy Depo. Doc. 122-2 at 38:518; id. at 39:4-14 ). 108

PROCEDURAL BACKGROUND

Sinfuego filed suit in the United States District Court for the District of New Mexico, alleging: (i) in Count I, that pursuant to 42 U.S.C. § 1983 , the Defendants violated her First Amendment freedom-of-speech rights; (ii) in Count II, that pursuant to § 1983, the Defendants violated her First Amendment right to freely associate; (iii) in Count III, that pursuant to § 1983, the Defendants violated her First Amendment right to petition for the redress of grievances; and (iv) in Count IV, that the Defendants retaliated against her in violation of the *1215 NMWPA. See Civil Complaint for Violation of Civil Rights and the Whistleblower Protection Act, Sinfuego v. Curry Cty. Bd. of Cty. Comm'rs , No. CIV 15-0563 JB/GF, filed July 1, 2015 (Doc. 1)("Complaint").

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

1. The Motion and the Memo .

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

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

Curry County then argues that Sinfuego's claims also fail under the Garcetti / Pickering test's fourth step. See Memo. at 19-23. The Garcetti / Pickering test's fourth step requires that the plaintiff show that the allegedly protected activity was a "substantial factor or motivating factor in a detrimental employment decision." Memo. at 19 (citing Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d 1192 , 1203 (10th Cir. 2007) ). In a footnote, Curry *1216 County opposes Sinfuego's description of any action short of termination as an "adverse employment action." Memo. at 20 n.8. Curry County argues that, while Sandoval allegedly retaliated against Sinfuego, Sandoval could not have known of Sinfuego's allegedly protected activities -- the December 6, 2012, text message -- at the time that she moved to terminate Sinfuego. See Memo. at 20. Regarding Sinfuego's theory of retaliation based on her expressed concerns about the facility's conditions, Curry County argues that Sinfuego has not shown any evidence that Pyle or Sandoval were aware of her statements. See Memo. at 20. Finally, Curry County points to the more than one-year gap between Sinfuego's allegedly protected activities in December, 2012, and her termination in January, 2014, as evidence that retaliation did not motivate her termination. See Memo. at 21-22. Because of these considerations, Curry County argues that Counts I through III fail as a matter of law. See Memo. at 23.

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

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

*1217 Regarding Count IV of Sinfuego's Complaint, Curry County also argues that Sinfuego cannot, as a matter of law, prevail on her NMWPA argument. See Memo. at 27-34. According to Curry County, Count IV alleges that Curry County violated the NMWPA when it terminated Sinfuego's employment in retaliation for her whistleblowing communications. See Memo. at 27. Curry County argues that Sinfuego cannot show that any of her union-related activities constitute "whistleblowing activities," that, when the decision was made to terminate Sinfuego, Sandoval and Pyle were aware of any of Sinfuego's concerns regarding conditions at Curry Detention, and that Curry County had a legitimate, non-retaliatory reason to terminate Sinfuego's employment. See Memo. at 27-34.

2. The Response .

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

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

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

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

As to Curry County's argument that Sinfuego's termination was appropriate because she violated the Curry County sexual harassment policy, Sinfuego argues that her actions do not amount to violations of the Curry County sexual harassment policy. See Response at 24-25. Sinfuego disputes Curry County's allegation that she "admitted on multiple occasions that she asked a male coworker whether he *1218 groomed his genitals 'like how porn stars do it.' " Response at 25 (quoting Memo. at 23). Sinfuego argues that "one comment or question made during someone else's lengthy discussion of sexual hygiene [as] an activity is not sexual harassment." Response at 25. Sinfuego argues that her comment did not "interfere with anyone's ability to do their job[s]" and that her action does not, therefore, rise to the level of sexual harassment. Response at 25. Similarly, Sinfuego argues that her actions at the "Toxic Talk" training did not create an "intimidating work environment" and that none of her coworkers complained about the picture message that she sent during the "Toxic Talk" training. Response at 25. Sinfuego then highlights other incidents of sexual conduct to argue that Curry County only selectively enforces the Curry County sexual harassment policy. See Response at 27-8.

3. The Reply .

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

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

Additionally, Curry County reasserts its contention that Sinfuego would have been terminated for her misconduct, regardless of any alleged retaliatory motive on Curry County's part. See Reply at 16. Curry County reiterates Sinfuego's acknowledgement that she took part in an inappropriate workplace conversation, and her admission that she drew penises on a picture and then sent it via Snapchat to three coworkers. See Reply at 17. Regarding Sinfuego's contention that her actions do not rise to the level of "actionable" sexual harassment, Curry County cites the Tenth Circuit, which has asserted that employers have an "interest in eliminating the appearance of impropriety" and do not have to forego taking action until the misconduct has risen to the level of "actionable." Reply at 17 (citing Trant v. Oklahoma , 754 F.3d at 1167 ). Finally, as to Sinfuego's allegations in her Response pertaining to other alleged incidents of sexual harassment, Curry County argues that there is *1219 zero evidence that Pyle or Sandoval were aware of any of the other incidents to which Sinfuego alludes. See Reply at 19. Additionally, Curry County asserts that Sinfuego has failed to establish the facts required for municipal liability. See Reply at 19. Curry County asserts that Sinfuego has not identified a formal Curry County policy, nor has she established a pattern that could conceivably be viewed as a "custom" to establish municipal liability. Reply at 19-20.

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

4. The Hearing .

The Court held a hearing on the Motion on September 25, 2018. See Draft Transcript of Hearing at 1 (taken September 25, 2018)(Court)("Tr."). 109 The Court expressed its reservations that, because of the Garcetti / Pickering test, Sinfuego would have difficulty prevailing on her First-Amendment claims. Tr. at 3:2-6 (Court). Curry County summarized its understanding of the Garcetti / Pickering test. See Tr. at 11:1-12:2 (Smith). Curry County stated that Sinfuego's First Amendment retaliation claims fail at the Garcetti / Pickering test's second prong, as she cannot demonstrate that her alleged speech activities are matters of public concern. See Tr. at 12:22-25 (Smith). Curry County cited Torres v. Pueblo Board of County Com'rs , 229 F.3d 1165 , 2000 WL 1346347 (10th Cir. 2000) (unpublished table opinion), in which the Tenth Circuit concluded that union-related speech is not a public concern merely because it touches union activity. See Tr. at 14:15-23 (Smith).

Curry County next argued that Sinfuego's claims fail, because she cannot prove that her allegedly protected activity was a substantial or motivating factor in a detrimental employment decision. See Tr. at 15:3-11 (Smith). Curry County asserted that Sinfuego cannot demonstrate that Sandoval had any knowledge of Sinfuego's union-related activity when Sandoval decided to terminate Sinfuego's employment. See Tr. at 16:14-16 (Smith). Curry County pointed to the Sandoval Deposition, in which Sandoval was asked "a series of questions by plaintiff['s] counsel in which she had ... no knowledge of any union *1220 related activities that Ms. [Sinfuego] was engaged in ... prior to the lawsuit being filed." Tr. at 16:16-22 (Smith). Further, Curry County acknowledged that Pyle had knowledge of Sinfuego's union-related activities, but that no evidence suggests that, before the termination, he was involved in any employment decisions regarding Sinfuego. See Tr. at 17:4-10 (Smith). Curry County argued that, as to Sinfuego's termination, the significant gap in time between Sinfuego's union-related activities and her termination precludes an inference that she was terminated for her union-related activities. See Tr. at 18:11-19 (Smith).

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

As to Sinfuego's theory of retaliation based on the expression of her concerns regarding conditions at the Curry Detention, Curry County asserted that Sinfuego admitted in the Sinfuego Deposition that she had addressed her concerns to her immediate supervisors, but that she did not express these concerns either to Pyle or to Sandoval. See Tr. at 21:5-19 (Smith). According to Curry County, Sinfuego only can speculate whether her concerns were passed to Pyle or to Sandoval, and speculation, Curry County noted, is not sufficient to defeat summary judgment. See Tr. at 21:19-22:6 (Smith). Curry County asserted that Sinfuego lacks any evidence that Pyle or Sandoval moved to terminate her employment based on knowledge that Sinfuego had expressed these concerns. See Tr. at 22:3-6 (Smith).

Finally, Curry County argued that it can show by a preponderance of the evidence that it would have made the same adverse employment decision regardless of any alleged union-related activities, because Sinfuego engaged in behavior that violated the Curry County sexual harassment policy. See Tr. at 23:1-7 (Smith). Curry County argued that Sinfuego's contention that her actions do not rise to an "actionable level" fail, as the Tenth Circuit has held that "boorish behavior in the workplace can justify terminat[ion]." Tr. at 23:9-10 (Smith). Regarding the theory of municipal liability, Curry County asserted that Sinfuego cannot establish that there was a custom or policy of Curry County's to retaliate against employees who engaged in union-related activities. See Tr. at 25:20-23 (Smith).

Sinfuego responded, referencing Billy v. Curry County Board of Commissioners , in which Bobbie Sandoval, a Curry County Commissioner, testified that in December, 2012, that he was aware that Pyle was "upset with Mrs. Sinfuego's activities." Tr. at 28:21-29:3 (Dixon). Further, Sinfuego pointed to the fact that Curry County fired Billy at the same time that Curry County moved Sinfuego to the midnight shift, despite Sinfuego having more seniority than a majority of her coworkers. See Tr. at 29:10-13 (Dixon).

Sinfuego asserted that, on the night of November 12, 2012, after exiting the restroom at Curry Detention, she exclaimed that the facility was dirty and inquired as to pubic hair on the toilet. See Tr. at 32:11-13 (Dixon). Then, according to Sinfuego, Hughes launched into a "rather lengthy discussion regarding his sexual hygiene," and Sinfuego states that she replied "that is too much information," and, according to Sinfuego, Yearley's statement confirms this conversation. Tr. at 31:16-18 (Dixon). Sinfuego then asserted that Curry County *1221 sought to justify its retaliatory behavior by citing violations of the Curry County sexual harassment policy, yet, according to Sinfuego, Curry County selectively enforced the Curry County sexual harassment policy. See Tr. at 33:14-18 (Dixon). Sinfuego argued that Curry County's action in terminating her is not in line with Title VII of the Civil Rights Act of 1964's, Pub. L. 88-352, 78 Stat. 241 (1964) ("Title VII"), requirements, and that Curry County did not adhere to the Curry County sexual harassment policy when it took adverse employment action against her. See Tr. at 35:1-36:2 (Dixon).

In addition, Sinfuego asserts that Billy v. Curry County Board of Commissioners ' jury findings establish that Curry County engaged in a custom of retaliating against individuals who engaged in union-related activities. See Tr. at 37:3-7 (Dixon). Sinfuego asserts that in Billy v. Curry County Board of Commissioners , the jury found that Curry County retaliated against Billy and terminated him in retaliation for not disciplining Sinfuego after she engaged in her union-related activities. See Tr. at 36:21-24 (Dixon). Sinfuego argued that these findings show that "there are issues of material fact that prevent this matter from being decided on summary judgment." Tr. at 37:5-7 (Dixon).

In response to Sinfuego's contention that Curry County retaliated against her for engaging in behavior for which it did not punish other employees, Curry County cited the Tenth Circuit case Adams v. American Guarantee and Liability Insurance , 233 F.3d 1242 (10th Cir. 2000), which holds that, "[i]n order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible. " Tr. at 39:5-17 (Smith)(emphasis in original) (quoting Adams v. Am. Guar. & Liab. Ins. , 233 F.3d at 1246 ). Curry County asserted that the majority of Sinfuego's evidence regarding other employees is inadmissible hearsay and that, therefore, Sinfuego cannot use the evidence at the summary judgment stage. See Tr. at 39:16-22 (Smith). Further, according to Curry County, in the Sinfuego Deposition, when asked about other employees and Curry County not disciplining them for engaging in similar behavior, Sinfuego confirmed that she was not aware whether Pyle or Sandoval had knowledge of these allegations, or if either was ever apprised of the behavior. See Tr. at 40:17-41:5 (Dixon).

Curry County moved to the NMWPA claims, stating: "Here, the plaintiff's [NM]WPA claims are the same as her First Amendment retaliation theories, she alleges that she was retaliated against for participating in union activity and for reporting safety concerns or conditions of the detention center to her lieutenants and sergeants at the detention center." Tr. at 42:22-43:3 (Smith). Specifically, Curry County stated that Sinfuego contends that, when Sinfuego sent the December 6, 2012, text message, she engaged in "reporting a violation of federal or state law," because the New Mexico Public Employees Bargaining Act, N.M. Stat. Ann. §§ 10 -7E-1 to -26, "grants public employees the right to form a union without interference, restraint, or coercion" and Sinfuego was reporting a violation of this right. Tr. at 45:5-7 (Smith)(citing N.M. Stat. Ann. § 10 -7E-5 ). Curry County asserted that Sinfuego's allegations regarding Pyle are without merit, as Pyle's activities do not violate any New Mexico statute, and that Pyle was free to offer to meet individually with officers before the union's certification. See Tr. at 45:18-21 (Smith). Curry County asserted that no union had been certified by December 6, 2012. See Tr. at 46:5-6 (Smith). According to Curry County, Sinfuego, therefore, was not engaged in "reporting or communicating anything that *1222 would be a violation of the law." Tr. at 46:20-21 (Smith).

As to Sinfuego's contention that she suffered retaliation for reporting on unsafe conditions at Curry Detention, Curry County argued that this argument is without merit, because Sinfuego cannot prove that Pyle or Sandoval had any knowledge of her communications, and therefore could not have retaliated against her for something of which they were not aware. See Tr. at 47:6-12 (Smith). In response to the Court's inquiry about the "cat's paw theory," 110 Tr. at 48:17-18 (Court), Curry County stated that no evidence suggests that Pyle or Sandoval relied on a subordinate's recommendation when terminating Sinfuego. See Tr. at 49:17-50:16 (Smith). Curry County concluded its argument regarding the NMWPA by raising Sinfuego's misconduct as an affirmative defense. See Tr. at 50:7-10 (Smith). Curry County compared this affirmative defense to the Garcetti / Pickering test's fifth step, and the NMWPA explicitly allows for an employer to raise this affirmative defense. See Tr. at 49:19-25 (Smith).

Sinfuego returned to arguing about the Garcetti / Pickering test's public-concern requirement for her First Amendment retaliation claims. See Tr. at 51:21-23 (Dixon). First, Sinfuego noted that her November 14, 2013, complaint about Hughes' sexual comments touched a public concern. See Tr. at 51:21-52:3 (Dixon). Second, Sinfuego pointed to the December 6, 2012, text message and disputed Curry County's understanding of what § 10-7E-5 allows. See Tr. at 52:4-16 (Dixon). Sinfuego asserted that "Mr. Pyle was against the union and wanted [t]o tell everybody or to attempt to scare everybody into not unionizing." Tr. at 52:14-16 (Dixon). Finally, Sinfuego pointed to the Petition from Curry Officers to Sandoval as another protected activity in which Sinfuego engaged. See Tr. at 51:22-52:4 (Dixon).

In Curry County's response, it argued that the Petition from Curry Officers to Sandoval is an undated letter that thirty detention officers signed, and does not fall within the protected "whistleblowing activity" that the NMWPA protects, and that this moment was the first instance in which Sinfuego had raised this point in the course of the suit. See Tr. at 53:1-15 (Smith). In addition, Curry County asserted that, before the hearing, Sinfuego had not raised her contention that Curry County retaliated against for her complaint about Hughes' sexual comments. See Tr. at 53:16-19 (Smith).

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 'show[ing] that there is an absence *1223 of evidence to support the nonmoving party's case.' " Herrera v. Santa Fe Pub. Sch. , 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) (" Celotex " ).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323 -25 , 106 S.Ct. 2548 . On those issues for which it bears the burden of proof at trial, the nonmovant "must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment." Cardoso v. Calbone , 490 F.3d 1194 , 1197 (10th Cir. 2007).

Plustwik v. Voss of Nor. ASA , No. 2:11-cv-757, 2013 WL 1945082 , at *1 (D. Utah May 9, 2013) (Sam, J.)(emphasis added). "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." Celotex , 477 U.S. at 331 , 106 S.Ct. 2548 (Brennan J., dissenting)(emphasis in original). 111 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex , 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) (" Liberty Lobby " ). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc. , the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-the-implied-warranty-of-merchantability claims. 184 F.Supp.3d 1030 , 1075 (D.N.M. 2016) (Browning, J.). The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claims' proximate-causation requirement with mere common knowledge, and the plaintiff provided no expert testimony bolstering its arguments. See 184 F.Supp.3d at 1075, 1079 . Without the requisite evidence, the plaintiff, the Court determined, failed to prove "an essential element of the nonmoving party's case," rendering "all other facts immaterial." 184 F.Supp.3d at 1075 (quoting Plustwik v. Voss of Nor. ASA , 2013 WL 1945082 , at *1 ).

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."

*1224 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." Liberty Lobby , 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) ("[O]nce 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. v. Omer , No. CIV 07-2123, 2008 WL 2309005 , at *1 (D. Kan. June 2, 2008) (Robinson, J.)(citing Fed. R. Civ. P. 56(e) ; Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193 , 1199 (10th Cir. 2006) ). "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. 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." Liberty Lobby , 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 Liberty Lobby , 477 U.S. at 248 , 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the fact finder can reasonably find for the nonmoving party. See Liberty Lobby , 477 U.S. at 251 , 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson , 81 U.S. 442 , 448 (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." Liberty Lobby , 477 U.S. at 249 , 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, cannot 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 Liberty Lobby , 477 U.S. at 249 , 106 S.Ct. 2505 . Second, the ultimate 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 *1225 to support liability." Liberty Lobby , 477 U.S. at 254 , 106 S.Ct. 2505 . Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, 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) ; Liberty Lobby , 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 Liberty Lobby , 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 of the United States concluded that summary judgment is appropriate where video evidence "quite clearly contradicted" the plaintiff's 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. [ Indus.] Co. v. Zenith Radio Corp. , 475 U.S. [at] 586-587, 106 S.Ct. 1348 ... (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. [at] 247-248, 106 S.Ct. 2505 .... 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 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 viewed the facts in the light depicted by the videotape.

Scott v. Harris , 550 U.S. at 380 -81 , 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County , 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, "[a]s with any motion for summary judgment, 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." York v. City of Las Cruces , 523 F.3d 1205 , 1210 (10th Cir. 2008) (quoting Scott , 550 U.S. at 380 , 127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr , 511 F.3d 1255 , 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty. , 584 F.3d at 1312 (brackets omitted). "The Tenth Circuit, in Rhoads v. Miller , [ 352 F. App'x 289 (10th Cir. 2009) (Tymkovich J.)(unpublished),]

*1226 112 explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony...." Lymon v. Aramark Corp. , 728 F.Supp.2d 1222 , 1249 (D.N.M. 2010) (Browning, J.)(citation omitted), aff'd , 499 F. App'x 771 (10th Cir. 2012).

LAW REGARDING 42 U.S.C. § 1983

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983 . Section 1983 creates only the right of action; and it does not create any substantive rights; substantive rights must come from the Constitution or from a federal statute. See Nelson v. Geringer , 295 F.3d 1082 , 1097 (10th Cir. 2002) ("[S]ection 1983 did not create any substantive rights, but merely enforces existing constitutional and federal statutory rights...." (internal quotation marks, alteration, and citation omitted) ). Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violates the claimant's federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins , 487 U.S. 42 , 48, 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). The Court has noted:

[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a "person" (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.

Schaefer v. Las Cruces Pub. Sch. Dist. , 716 F.Supp.2d 1052 , 1063 (D.N.M. 2010) (Browning, J.)(quoting Summum v. City of Ogden , 297 F.3d 995 , 1000 (10th Cir. 2002) ).

The Supreme Court has clarified that, in alleging a § 1983 action against a government agent in his or her individual capacity, "a plaintiff must plead that each Government-official defendant, *1227 through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal , 556 U.S. 662 , 676, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009). Consequently, there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal , 556 U.S. at 675 , 129 S.Ct. 1937 ("Because vicarious liability is inapplicable to Bivens [ v.Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) ] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397 , 403, 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). Entities cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. Dep't of Soc. Servs. of N.Y. , 436 U.S. 658 , 689, 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for their employees' tortious acts. See Barney v. Pulsipher , 143 F.3d 1299 , 1307-08 (10th Cir. 1998).

The Tenth Circuit recognizes that non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson , 697 F.3d 1252 , 1255 (10th Cir. 2012) (internal quotation marks omitted)(quoting 42 U.S.C. § 1983 ; Trask v. Franco , 446 F.3d 1036 , 1046 (10th Cir. 2006) ). The Tenth Circuit also recognizes that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas , No. CIV 11-0011 JB/RHS, 2011 WL 7444745 , at *25-26 (D.N.M. Dec. 8, 2011) (Browning, J.)(citing Dodds v. Richardson , 614 F.3d 1185 , 1199 (10th Cir. 2010) ). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal , 556 U.S. at 676 , 129 S.Ct. 1937 . The Tenth Circuit in Dodds v. Richardson states:

Whatever else can be said about Iqbal , and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which "subjects, or causes to be subjected" that plaintiff "to the deprivation of any rights ... secured by the Constitution...."

Dodds v. Richardson , 614 F.3d at 1199 (quoting 42 U.S.C. § 1983 ). The Tenth Circuit has noted, however, that " Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson , 614 F.3d at 1200 . It concludes that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson , 614 F.3d at 1200 . More specifically, the Tenth Circuit recognizes that there must be "an 'affirmative' link ... between the unconstitutional acts by their subordinates and their 'adoption of any plan or policy ... -- express or otherwise -- showing their authorization or approval of such misconduct.' " Dodds v. Richardson , 614 F.3d at 1200 -01 (quoting Rizzo v. Goode , 423 U.S. 362 , 371, 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976) ). The specific example that the *1228 Tenth Circuit used to illustrate this principle is Rizzo v. Goode , where the plaintiff sought to hold a mayor, a police commissioner, and other city officials liable under § 1983 for constitutional violations that unnamed individual police officers committed. See Dodds v. Richardson , 614 F.3d at 1200 (citing Rizzo v. Goode , 423 U.S. at 371 , 96 S.Ct. 598 ). The Tenth Circuit notes that the Supreme Court concluded, in Rizzo v. Goode , that there was a sufficient link between the police misconduct and the city officials' conduct, because there was a deliberate plan by some of the named defendants to "crush the nascent labor organizations." Dodds v. Richardson , 614 F.3d at 1200 (quoting Rizzo v. Goode , 423 U.S. at 371 , 96 S.Ct. 598 ).

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas , 450 F.3d at 1218 . Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas , 450 F.3d at 1218 . When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas , 450 F.3d at 1218 . Establishing an informal policy or custom requires the plaintiff to show that the misconduct was "widespread" -- i.e. , that it involved a "series of decisions." City of St. Louis v. Praprotnik , 485 U.S. 112 , 127, 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988). The existence or nonexistence of such a policy, practice, or custom is a question of fact for the jury. See Powers v. Hamilton Cty. Pub. Defender Comm'n , 501 F.3d 592 , 599 (6th Cir. 2007) ("[T]he evidence showed at least a disputed question of fact as to the existence of its alleged policy or custom...."); Surprenant v. Rivas , 424 F.3d 5 , 21 (1st Cir. 2005) ("O'Mara challenges the very existence of the interdicted policy, custom, or practice. Proving the existence of a policy, custom, or practice normally entails questions of fact." (citation omitted) ); Wallis v. Spencer , 202 F.3d 1126 , 1136 (9th Cir. 1999) ("In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation."); Gregory v. City of Rogers , 921 F.2d 750 , 757 (8th Cir. 1990) ("[A]ppellants have raised material questions of fact whether it was the custom of the Rogers Police Department that officers could use their discretion in deciding whether or not to arrest intoxicated individuals, despite the state statute requiring their arrest."); Fancher v. Barrientos , No. Civ. 11-0118 LH/LAM, 2013 WL 8600085 , at *4 (D.N.M. Aug. 19, 2013) (Hansen, J.)("[A]t this time the record is unclear and it remain a question of fact as to which policy was in place."); Jacobs v. Dujmovic , 752 F.Supp. 1516 , 1525 (D. Colo. 1990) (Babcock, J.)("[T]he Jacobs have failed to meet their summary judgment burden of showing that it adopted a policy, custom or procedure that caused constitutional violations, or that there is a question of fact as to the existence of such a policy.").

LAW REGARDING FIRST AMENDMENT RETALIATION CLAIMS

"Official reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right.' " Hartman v. Moore , 547 U.S. 250 , 256, 126 S.Ct. 1695 , 164 L.Ed.2d 441 (2006) (quoting Crawford-El v. Britton , 523 U.S. 574 , 588 n.10, 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998) ). For instance, it is therefore "settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual *1229 to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore , 547 U.S. at 256 , 126 S.Ct. 1695 (citation omitted). One variation of a First Amendment retaliation claim that the Supreme Court has described are those claims that arise when a public employee alleges that he has been fired or otherwise punished for speech criticizing the government. See Hartman v. Moore , 547 U.S. at 260 , 126 S.Ct. 1695 (citing Pickering , 391 U.S. at 566 -67 , 88 S.Ct. 1731 ).

The Tenth Circuit applies "a five-prong analysis to determine whether action taken against an employee constitutes retaliation in violation of the employee's First Amendment rights." Hook v. Regents of Univ. of Cal. , 394 F. App'x 522 , 534 (10th Cir. 2010) (unpublished).

First, the court must determine whether the employee speaks pursuant to his official duties. If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created. Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine whether the employee's interest in commenting on the issue outweighs the interest of the state as employer. Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a motivating factor in a detrimental employment decision. Finally, if the employee establishes that his speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech.

Couch v. Bd. of Trs. of Mem'l Hosp. , 587 F.3d 1223 , 1235 (10th Cir. 2009) (quotations and citation omitted). "Implicit within this five-prong analysis 'is a requirement that the public employer have taken some adverse employment action against the employee.' " Hook v. Regents of Univ. of Cal. , 394 F. App'x at 534 (quoting Couch v. Bd. of Trs. of Mem'l Hosp. , 587 F.3d at 1235-36 ). The standard for determining whether an employer subjected an employee to an adverse employment action is the same for retaliation claims under the First Amendment and Title VII, see Hook v. Regents of Univ. of Cal. , 394 F. App'x at 535 . 113 The *1230 test is whether the action "would deter a reasonable person from exercising his First Amendment rights." Hook v. Regents of Univ. of Cal. , 394 F. App'x at 535 (internal quotation marks omitted)(quoting Couch v. Bd. of Trs. of Mem'l Hosp. , 587 F.3d at 1238 ). See Proctor v. United Parcel Serv. , 502 F.3d 1200 , 1208 n.4 (10th Cir. 2007) (citing Burlington N. & Santa Fe Ry. v. White , 548 U.S. 53 , 126 S.Ct. 2405 , 165 L.Ed.2d 345 (2006) ); Haynes v. Level 3 Commc'ns , 456 F.3d 1215 , 1228 (10th Cir. 2006). See Gerald v. Locksley , 785 F.Supp.2d 1074 , 1117 (D.N.M. 2011) (Browning, J.)(applying the Title VII standard for adverse employment action to determine that neither "[t]he Defendants encouraging [the Plaintiff] to minimize or not pursue a grievance because it would not be good for his career without any action" nor the Defendants placing the Plaintiff on administrative leave amounted to adverse employment actions.").

1. Speech Pursuant to Official Duties .

Under Garcetti v. Ceballos , and its progeny, a plaintiff must show that the substance of the speech which forms the basis for the First Amendment claim involves something that is not part of the plaintiff's official duties and is a matter of public concern, and not merely a complaint involving the plaintiff's own employment. See Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1202 . In Brammer-Hoelter v. Twin Peaks Charter Academy , the Tenth Circuit applied the analysis from Garcetti v. Ceballos to determine whether the employee's First-Amendment right had been violated. 492 F.3d at 1202 -08 . First, the court must determine whether the employee speaks "pursuant to her official duties." 492 F.3d at 1202 . "If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech 'simply reflects the exercise of employer *1231 control over what the employer itself has commissioned or created.' " 492 F.3d at 1202 (quoting Garcetti v. Ceballos , 547 U.S. at 422 , 126 S.Ct. 1951 ).

Speech relating to tasks within an employee's uncontested employment responsibilities may not be protected from regulation, even though the speech concerns an unusual aspect of an employee's job that is not part of his everyday functions. See Battle v. Bd. of Regents , 468 F.3d 755 , 761 n.6 (11th Cir. 2006). In some circumstances, filing a complaint with "an agency outside [a plaintiff's] direct chain of command ... [i]s not pursuant to official duties, but rather [i]s the speech of a private citizen." Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. , 595 F.3d 1126 , 1137 (10th Cir. 2010). The ultimate question is whether the employee speaks as a citizen or as a government employee -- an individual acting "in his or her professional capacity." Gerald v. Locksley , 785 F.Supp.2d at 1104 . See Jones v. Lincoln Cty. Comm'rs , No. CIV 06-0591 JB/LCS, 2007 WL 5239190 , at *11 (D.N.M. July 10, 2007) (Browning, J.)(concluding that an employee acted as a citizen, because "no particular political affiliation is required for Jones' position as Deputy Sheriff, and it is not plausible that Jones had an official duty to oppose his boss in a political election").

2. Speech about Matters of Public Concern .

Second, if the employee does not speak pursuant to his or her official duties, but instead speaks as a citizen, the court must determine whether the subject of her speech is a matter of public concern. See Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1202 -03 . "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers , 461 U.S. 138 , 147, 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983) (" Connick " )(finding that a terminated assistant district attorney's expressive activity did not involve a matter of public concern where she disseminated a questionnaire to her co-workers soliciting their views on office morale and dynamics, including whether they felt pressure to work in political campaigns).

[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Connick , 461 U.S. at 147 , 103 S.Ct. 1684 . "Statements revealing official impropriety usually involve matters of public concern." Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1205 (citing Lighton v. Univ. of Utah , 209 F.3d 1213 , 1224 (10th Cir. 2000) ). Conversely, speech that simply airs "grievances of a purely personal nature" does not involve matters of a public concern. Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1205 ("In determining whether speech pertains to a matter of public concern, the court may consider 'the motive of the speaker and whether the speech is calculated to disclose misconduct or merely deals with personal disputes and grievances unrelated to the public's interest.' " (quoting Lighton v. Univ. of Utah , 209 F.3d at 1224 ) ).

The Tenth Circuit in Brammer-Hoelter v. Twin Peaks Charter Academy explained:

[W]e have held that the following are not matters of public concern: speech regarding grievances about internal departmental affairs, *1232 Hom v. Squire , 81 F.3d 969 , 974 (10th Cir. 1996), disputes over the term of employment, Lancaster v. Ind. Sch. Dist. No. 5 , 149 F.3d 1228 , 1233-34 (10th Cir. 1998), and workplace frustration, McEvoy v. Shoemaker , 882 F.2d 463 , 466 (10th Cir. 1989).

Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1205 . In Sanchez v. Matta , No. CIV 03-2297 JB/LFG, 2004 WL 3426405 (D.N.M. Aug. 23, 2004) (Browning, J.), the Court explained that an employee spoke on a matter of public concern when: (i) the speech addressed

allegations of fraud, the inappropriate collection of state funds as reimbursement for use of the executive director of the National Hispanic Cultural Center's personal vehicle at the IRS mileage rate when a state vehicle was available, the granting of a translation contract to executive director's sister, the attempted misuse of state travel funds, violations of the New Mexico Procurement Code, the misuse of government phones for personal reasons, discriminatory favoritism and preferential treatment toward certain employees, and harassment of other employees;

2004 WL 3426405 , at *10-11, (ii) the employee spoke to "two high level officers within the organizational structure of the Center who had the ability to take action on Sanchez' concerns," 2004 WL 3426405 , at *10-11, and (iii) no evidence suggested a "pre-existing dispute" between the employee and the executive director, 2004 WL 3426405 , at *10-11. See Jones v. Lincoln Cty. Comm'rs , 2007 WL 5239190 , at *11 (concluding that statements about political affiliation are a matter of public concern, because "discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution" (internal quotation marks omitted)(quoting Buckley v. Valeo , 424 U.S. 1 , 14, 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) ) ); West v. N.M. Taxation & Revenue Dep't , 757 F.Supp.2d 1065 , 1128 (D.N.M. 2010) (Browning, J.)(determining that an Equal Employment Opportunity Commission ("EEOC") charge and complaints about employers' response to requests for accommodation were not matters of public concern, because they "focus[ed] on conditions of [the employee's] own employment").

3. Balancing Interests .

Third, if the subject of the speech is a matter of public concern, the court must weigh "an employee's First Amendment speech against an employer's interest in an efficient and disciplined work environment." Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1207 (quoting Casey v. W. Las Vegas Indep. Sch. Dist. , 473 F.3d 1323 , 1333 (10th Cir. 2007) ). " '[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." (quoting Connick , 461 U.S. at ). "[T]he employer must also articulate its proffered interest in regulating the speech in question." Barker v. City of Del City , 215 F.3d at 1139. The Tenth Circuit explained:

Nevertheless, the question is whether the employer "has an efficiency interest which would justify it in restricting the particular speech at issue." [ Cragg v. City of Osawatomie , 143 F.3d 1343 , 1347 (10th Cir. 1998) ]. "In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin v. McPherson , 483 U.S. 378 , 388, 107 S.Ct. 2891 , 97 L.Ed.2d 315 , (1987).

Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1207 .

A number of factors are considered in evaluating Defendants' interest under *1233 the Pickering balancing test. Pertinent considerations include "the manner, time, and place of the employee's expression ... the context in which the dispute arose ... [and] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."

Patrick v. Miller , 953 F.2d 1240 , 1248 (10th Cir. 1992) (quoting Rankin v. McPherson , 483 U.S. at 388 , 107 S.Ct. 2891 ). "We will defer to a public employer's reasonable predictions of disruption, but those predictions must be supported by the presentation of specific evidence. The [employer] cannot satisfy its burden by making purely speculative allegations." Patrick v. Miller , 953 F.2d at 1248 (internal quotation marks omitted)(quoting Cragg v. City of Osawatomie , 143 F.3d 1343 , 1347 (10th Cir. 1998) ). "Arguably, 'the only public employer interest that can outweigh a public employee's recognized speech rights is the interest in avoiding direct disruption, by the speech itself, of the public employer's internal operations and employment relationships.' " Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1207 (emphases in original)(quoting Flanagan v. Munger , 890 F.2d 1557 , 1566 (10th Cir. 1989) ). See Sanchez v. Matta , 2004 WL 3426405 , at *12-13 (determining that, where no "actual disruption" occurred, the employer's interests did not outweigh the employee's).

4. Causation .

"Under the fourth-prong of Garcetti , plaintiffs bear the burden of establishing both a detrimental employment decision (adverse employment action) and 'causation -- that is, that the constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment.' " Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cty. , 587 F.3d at 1236 (quoting Maestas v. Segura , 416 F.3d 1182 , 1188 & n.5 (10th Cir. 2005) ). The second half of the fourth part of the analysis requires a showing that the plaintiff's protected speech was a "substantial factor or a motivating factor" in the adverse action. Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d 1192 at 1203 (internal quotation marks omitted)(quoting Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ. , 232 F.3d at 1338 ). Demonstrating the link between the protected speech and the adverse action is a fact-intensive inquiry and is thus ordinarily the jury's province. See Brammer-Hoelter v. Twin Peaks Charter Academy , 492 F.3d 1192 at 1203. Nonetheless, "[t]o withstand summary judgment ..., an employee must produce evidence linking the employer's action to the employee's speech." Maestas v. Segura , 416 F.3d at 1188 .

The Tenth Circuit summarizes some of the law regarding the causation requirement in Maestas v. Segura :

Adverse action in close proximity to protected speech may warrant an inference of retaliatory motive. See Baca v. Sklar , 398 F.3d 1210 , 1221 (10th Cir. 2005). But temporal proximity is insufficient, without more, to establish such speech as a substantial motivating factor in an adverse employment decision. Id [ . ] ; see also Morfin v. City of East Chicago , 349 F.3d 989 , 1005 (7th Cir. 2003) (explaining protected conduct cannot be a basis for retaliation where defendants did not know of such conduct). An employer's knowledge of the protected speech, together with close temporal proximity between the speech and challenged action, may be sufficiently probative of causation to withstand summary *1234 judgment. See Ramirez [ v. Okla. Dep't of Mental Health ], 41 F.3d [584] at 596 [ (10th Cir. 1994) ]. Other evidence of causation may include evidence the employer expressed opposition to the employee's speech, see Alpha Energy Savers, Inc. v. Hansen , 381 F.3d 917 , 929 (9th Cir. 2004), or evidence the speech implicated the employer in serious misconduct or wrongdoing. See Baca , 398 F.3d at 1221 . On the other hand, evidence such as a long delay between the employee's speech and challenged conduct, see McGuire v. City of Springfield , 280 F.3d 794 , 796 (7th Cir. 2002), or evidence of intervening events, see Gubitosi v. Kapica , 154 F.3d 30 , 33 (2d Cir. 1998), tend to undermine any inference of retaliatory motive and weaken the causal link.

Maestas v. Segura , 416 F.3d at 1189 .

Showing that an adverse action occurred in close proximity to protected speech is a common method of showing causation. A plaintiff need not show proximity between the protected speech and an action sufficiently severe to be materially adverse, but can instead show temporal proximity between the speech and the beginning of a pattern of retaliatory activity, some instances of which are sufficient under the Garcetti / Pickering analysis.

Chavez-Rodriguez v. City of Santa Fe , No. CIV 07-0633 JB/DJS, 2008 WL 5992270 , at *18 (D.N.M. Oct. 17, 2008) (Browning, J.), on reconsideration in part , 616 F.Supp.2d 1153 (D.N.M. 2009) (Browning, J.), rev'd on other grounds , 596 F.3d 708 (10th Cir. 2010). See Jones v. Lincoln Cty. Comm'rs , 2007 WL 5239190 , at *12 (concluding that a genuine issue of material dispute exists about whether an employees' political expression and association motivated the employers' adverse employment action when "management personnel had ostracized" the employee and stated that he did so, because "[a]ny constructive criticism would have been misconstrued as retaliation"); Sanchez v. Matta , 2004 WL 3426405 , at *15 (granting summary judgment for the defendant on the question of causation when the manager who issued a written reprimand and Notice of Contemplated Action had only "general knowledge" about a grievance, avoided learning more about the grievance and based the decision on material unrelated to the grievance, but denying summary judgment for the defendant when the employer restricted the employee's representations at meetings, "because it relieved" tension resulting from the employee's protected action).

5. Alternative Reason for the Employer's Action .

To rebut a plaintiff's case, an "employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech." Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1203 (internal quotation marks omitted)(quoting Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ. , 232 F.3d at 1339 ). "This defense is principally an issue for the jury." See Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1203 .

LAW REGARDING THE NMWPA

The NMWPA provides:

A public employer shall not take any retaliatory action against a public employee because the public employee:

A. communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;

B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or *1235 C. objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act.

N.M. Stat. Ann. § 10 -16C-3. A "retaliatory action" for the NMWPA's purposes means "taking any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment." N.M. Stat. Ann. § 10 -16C-2(D). An "unlawful or improper act" means:

E. .... a practice, procedure, action, or failure to act on the part of a public employer that:

(1) violates a federal or state law, regulation, or administrative rule;

(2) constitutes malfeasance in public office; or

(3) constitutes gross mismanagement, a waste of funds, an abuse of authority or a substantial and specific danger to the public.

N.M. Stat. Ann. § 10 -16C-2(E). A plaintiff must file an action for a NMWPA violation within two years from the date on which the retaliatory action occurred. See N.M. Stat. Ann. § 10 -16C-6.

In Lobato v. New Mexico Environmental Department , 733 F.3d 1283 (10th Cir. 2013), the plaintiff raised the same arguments for his NMWPA claims as for his Title VII claim, asserting that his communications with his employer showed that each of the employer's justifications for the plaintiff's dismissal was pretextual. See 733 F.3d at 1286 . The defendants fired the plaintiff because of his dishonesty, failure to cooperate with management, and unprofessional attitude toward coworkers and the public. See 733 F.3d at 1285 . The defendants' reasons for firing the plaintiff were non-retaliatory, considering that there was no evidence in the record indicating that the defendants knew about the plaintiff's protected conduct. See 733 F.3d at 1288 . The plaintiff did not raise any inconsistency, weakness, or contradiction in the defendants' decision which would suggest to a reasonable factfinder that the defendants' proffered reasons for dismissal should be disbelieved. See 733 F.3d at 1293 . "[A]s discussed above, those arguments and supporting facts are insufficient to raise a genuine dispute about whether [the defendant] fired Lobato for any reason other than the nonretaliatory justifications provided in Lobato's dismissal letter. Accordingly, Lobato has not raised a genuine dispute of material fact for this claim either." 733 F.3d at 1297 .

LAW REGARDING SUPPLEMENTAL JURISDICTION

It is a fundamental precept of American law that the federal courts are "courts of limited jurisdiction." Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546 , 552, 125 S.Ct. 2611 , 162 L.Ed.2d 502 (2005). Federal courts "possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375 , 377, 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994). Among the powers that Congress has bestowed upon the courts is the power to hear controversies arising under federal law -- federal-question jurisdiction -- and controversies arising between citizens of different states -- diversity jurisdiction. See 28 U.S.C. §§ 1331 - 32. Section 1367 additionally grants the federal courts power to hear claims over which the court lacks original jurisdiction, if those claims are part of the same constitutional case as claims over which the court has original jurisdiction. See 28 U.S.C. § 1367 (a).

1. Congressional Authority to Exercise Supplemental Jurisdiction .

Although a statutory basis is necessary for federal courts to exercise jurisdiction over a controversy, "it is well *1236 established -- in certain classes of cases -- that, once a court has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy." Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. at 552 , 125 S.Ct. 2611 . The Supreme Court has long subscribed to the concept of supplemental jurisdiction recognized in two common-law doctrines, pendent jurisdiction 114 and ancillary jurisdiction; 115 Section 1367's passage codified those jurisdictional forms, and also allowed courts to hear cases under pendent-party jurisdiction, 116 which the Supreme Court had previously disallowed in Finley v. United States , 490 U.S. 545 , 109 S.Ct. 2003 , 104 L.Ed.2d 593 (1989). Federal courts may exercise pendent jurisdiction over state law claims when "state and federal claims ... derive from a common nucleus of operative fact." United Mine Workers of Am. v. Gibbs , 383 U.S. 715 , 725, 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966). Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after the introduction of third parties, whose insertion into the litigation does not have the support of any independent grounds for federal jurisdiction, when those parties share a common interest in the outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365 , 375 n.18, 98 S.Ct. 2396 , 57 L.Ed.2d 274 (1978).

In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez , No. CIV 09-0540 JB/CG, 2011 WL 6013547 , at *5 (D.N.M. Nov. 21, 2011) (Browning, J.). In response to the Committee's findings regarding pendent, ancillary, and pendent-party jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of 1990: 117

[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

28 U.S.C. § 1367 (a). In enacting 28 U.S.C. § 1367 , Congress conferred upon federal courts "supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically -- in single rather than multiple litigation -- with matters arising from the same transaction or occurrence." Report of the Federal Courts *1237 Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733 , 787 (1990).

2. The District Courts' Discretion to Exercise Supplemental Jurisdiction .

The Tenth Circuit has followed the Supreme Court's lead in classifying supplemental jurisdiction not as a litigant's right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp. , 379 F.3d 1161 , 1165 (10th Cir. 2004) (citing City of Chi. v. Int'l Coll. of Surgeons , 522 U.S. 156 , 173, 118 S.Ct. 523 , 139 L.Ed.2d 525 (1997) ). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court's opinion in United Mine Workers of America v. Gibbs , compelled courts to consider "judicial economy, convenience and fairness to litigants" when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726 , 86 S.Ct. 1130 .

Similarly, Congress' supplemental jurisdiction statute enumerates four factors that the court should consider:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367 (c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to "vindicate values of economy, convenience, fairness, and comity...." Estate of Harshman v. Jackson Hole Mountain Resort Corp. , 379 F.3d at 1164 . Numerous courts have acknowledged that 28 U.S.C. § 1367 (c) necessarily changes the district courts' supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367 (c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc. , 140 F.3d 442 , 447 (2d Cir. 1998) ("[S]ection 1367 has indeed altered Gibbs' discretionary analysis."); McLaurin v. Prater , 30 F.3d 982 , 985 (8th Cir. 1994) ("The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein."); Exec. Software N. Am. v. U.S. Dist. Ct. , 24 F.3d 1545 , 1557 (9th Cir. 1994) ("By codifying preexisting applications of Gibbs in subsections (c)(1)-(3), however, it is clear that Congress intended the exercise of discretion to be triggered by the court's identification of a factual predicate that corresponds to one of the section 1367(c) categories."), overruled on other grounds by Cal. Dep't of Water Res. v. Powerex Corp. , 533 F.3d 1087 (9th Cir. 2008) ; Palmer v. Hosp. Auth. , 22 F.3d 1559 , 1569 (11th Cir. 1994) ("[S]upplemental jurisdiction must be exercised in the absence of any of the four factors of section 1367(c)...."); Bonadeo v. Lujan , No. CIV 08-0812 JB/ACT, 2009 WL 1324119 , at *9 (D.N.M. April 30, 2009) (Browning, J.)(" 28 U.S.C. § 1367 (c) changed the district courts' supplemental jurisdiction discretion analysis to prohibit courts from declining jurisdiction unless one of the conditions of 28 U.S.C. § 1367 (c) exists."). At least one other district court in the Tenth Circuit besides this Court has reached the same conclusion. See *1238 Gudenkauf v. Stauffer Commc'ns, Inc. , 896 F.Supp. 1082 , 1084 (D. Kan. 1995) (Crow, J.)("[A]ny exercise of discretion declining jurisdiction over pendent claims or parties cannot occur until 'triggered' by the existence of one of the four conditions enumerated.").

The Tenth Circuit has held that district courts should presume to decline jurisdiction over state claims when federal claims no longer remain: "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City , 660 F.3d 1228 , 1248 (10th Cir. 2011) (quoting Smith v. City of Enid ex rel. Enid City Comm'n , 149 F.3d 1151 , 1156 (10th Cir. 1998) ). That conclusion is consistent with the Supreme Court's statement that

[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers of Am. v. Gibbs , 383 U.S. at 726 , 86 S.Ct. 1130 (footnote omitted).

The Tenth Circuit has recognized that a district court does not abuse its discretion when it declines to exercise supplemental jurisdiction over a claim "under 28 U.S.C. § 1367 (c)(3)... where it has dismissed all claims over which it has original jurisdiction." Muller v. Culbertson , 408 F. App'x 194 , 197 (10th Cir. 2011) (unpublished). The Court has previously stated that a district court should usually decline to exercise supplemental jurisdiction when 28 U.S.C. § 1367 (c) applies. See Armijo v. New Mexico , No. CIV 08-0335 JB/ACT, 2009 WL 3672828 , at *4 (D.N.M. Sept. 30, 2009) (Browning, J.)("The Supreme Court and the Tenth Circuit have not only acknowledged such a result, they have encouraged it."). The Court has consistently declined to exercise supplemental jurisdiction when it dismisses all of a case's federal claims with prejudice. See , e.g. , McGarry v. Bd. of Cty. Comm'rs for Cty. of Lincoln , 294 F.Supp.3d 1170 , 1206 (D.N.M. 2018) (Browning, J.)("The only remaining claim before the Court is McGarry's NMTCA claim.... 118 The Court declines to exercise supplemental jurisdiction over that claim."); Parrish v. Roosevelt Cty. Bd. of Cty. Comm'rs , No. CIV 15-0703 JB/GJF, 2017 WL 6759103 , at *20 (D.N.M. Dec. 31, 2017) (Browning, J.)("The Court declines to exercise supplemental jurisdiction over Parrish's remaining state-law breach-of-contract claim."); Martinez v. Guadalupe Cty , 200 F.Supp.3d 1216 , 1265 (D.N.M. 2016) (Browning, J). The Court has also, however, declined to dismiss state law claims when it dismisses a party's federal claims without prejudice. See Young v. City of Albuquerque , 77 F.Supp.3d 1154 , 1189 (D.N.M. 2014) (Browning, J.)("[T]he Court would normally remand those [state law] claims to state court. To give the Plaintiffs an opportunity to amend the Complaint to add federal claims against Dear and any other individuals, however, the Court will not remand the state-law claims to state court at this point.").

LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES

"Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin." Brown v. Gen. Servs. Admin. , 425 U.S. 820 , 825, 96 S.Ct. 1961 , 48 L.Ed.2d 402 (1976) (citing 42 U.S.C. §§ 2000e-2, 2000e-3 ). The Court has noted that Title *1239 VII generally protects individuals from employers' improperly motivated adverse treatment in the workplace: "Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Farley v. Leavitt , No. CIV 05-1219, 2007 WL 6364329 , at *6 (D.N.M. Dec. 31, 2007) (Browning, J.)(internal quotation marks and alterations omitted) (quoting 42 U.S.C. § 2000e-2(a)(1) ). With the 1972 amendments to the statute, Title VII's protections apply to federal and private employees. See Brown v. Gen. Servs. Admin. , 425 U.S. at 825 -26 , 96 S.Ct. 1961 (citing 42 U.S.C. § 2000e(b) ); Walton v. N.M. State Land Office , 113 F.Supp.3d 1178 , 1184 (D.N.M. 2015) (Browning, J.); Gerald v. Locksley , 785 F.Supp.2d at 1098 .

1. Title VII Retaliation .

To establish a prima facie case of retaliation, a plaintiff must show: "(1) that he [or she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Proctor v. United Parcel Serv. , 502 F.3d at 1208 (internal quotation marks omitted)(quoting Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d at 1202 ). "To establish that a causal connection exists," a plaintiff "may proffer 'evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.' " Proctor v. United Parcel Serv. , 502 F.3d at 1208 (quoting Haynes v. Level 3 Commc'ns, LLC , 456 F.3d at 1228 ). Generally speaking, if this temporal proximity between the protected activity and the adverse action are not "very close in time," the plaintiff "must offer additional evidence to establish causation." Proctor v. United Parcel Serv. , 502 F.3d at 1209 (internal quotation marks omitted)(quoting Haynes v. Level 3 Commc'ns, LLC , 456 F.3d at 1228 ). See Walton v. N.M. State Land Office , 113 F.Supp.3d at 1190 ; Gerald v. Locksley , 785 F.Supp.2d at 1099 -1100 .

2. Materially Adverse Employment Action .

The Tenth Circuit liberally defines what constitutes an adverse employment action. See Orr v. City of Albuquerque , 417 F.3d 1144 , 1150 (10th Cir. 2005) ("Because of the remedial nature of Title VII lawsuits, we broadly define adverse employment action."). The Tenth Circuit has stated:

Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.

Sanchez v. Denver Pub. Sch. , 164 F.3d 527 , 532 (10th Cir. 1998) (internal quotation marks omitted)(citations omitted). See Proctor v. United Parcel Serv. , 502 F.3d at 1208 . An adverse action "is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & Santa Fe Ry. v. White , 548 U.S. at 64 , 126 S.Ct. 2405 . "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. , 595 F.3d at 1133 (internal quotation marks omitted)(quoting *1240 Burlington N. & Santa Fe Ry. v. White , 548 U.S. at 68 , 126 S.Ct. 2405 ). "The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. v. White , 548 U.S. at 68 , 126 S.Ct. 2405 ("We speak of material adversity because we believe it is important to separate significant from trivial harms."). "We construe the phrase 'adverse employment action' liberally and do not limit it to 'monetary losses in the form of wages or benefits.' " Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. , 595 F.3d at 1133 (quoting Annett v. Univ. of Kan. , 371 F.3d 1233 , 1239 (10th Cir. 2004) ). Acts that carry "a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects" may be considered adverse actions, although "a mere inconvenience or an alteration of job responsibilities will not suffice." Annett v. Univ. of Kan. , 371 F.3d at 1239 (internal quotation marks omitted)(citation omitted).

In Anderson v. Clovis Municipal Schools , 265 F. App'x 699 (10th Cir. 2008) (unpublished), the Tenth Circuit, in an unpublished opinion, addressed the requirement of an adverse employment action in the context of a disparate-treatment claim and a hostile work environment claim. There, an employee, who had been placed on a growth plan, alleged other harsh treatment and a written reprimand in support of his claim that he suffered a hostile work environment. See 265 F. App'x at 704 . Relying on Schuler v. City of Boulder , 189 F.3d 1304 (10th Cir. 1999), the plaintiff, Anderson, argued that the growth plan and formal reprimand rose to the level of an adverse employment action under Tenth Circuit law. See 265 F. App'x at 704 . In MacKenzie v. City & County of Denver , 414 F.3d 1266 (10th Cir. 2005), the Tenth Circuit discussed Anderson v. Clovis Municipal School 's reliance on Schuler v. City of Boulder and stated: "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions ... would form the basis of a discrimination suit." 414 F.3d at 1279 . See Heno v. Sprint/United Mgmt. Co. , 208 F.3d 847 , 857 (10th Cir. 2007) (explaining that Title VII proscribes only discriminatory conduct that "alters the employee's compensation, terms, conditions, or privileges of employment, or adversely affects [the employee's] status as an employee" (internal quotation marks omitted)(quoting Sanchez v. Denver Pub. Sch. , 164 F.3d at 532 ) ). "Only acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action." Robinson v. Cavalry Portfolio Serv., LLC , 365 F. App'x 104 , 114 (10th Cir. 2010) (unpublished)(internal quotation marks omitted)(quoting Haynes v. Level 3 Commc'ns , 456 F.3d at 1218-19 ). See Walton v. N.M. State Land Office , 113 F.Supp.3d at 1190-92 ; Gerald v. Locksley , 785 F.Supp.2d at 1100 -01 .

ANALYSIS

Sinfuego appears to argue that Curry County retaliated against her for associating with the union and for her speech and petitions regarding: (i) conditions at Curry Detention; (ii) Curry Officers' concerns about staffing, pay, and unionizing; (iii) Pyle's invitation to meet individually with Curry Officers; and (iv) sexual harassment. See Response at 17-24. Sinfuego contends that, in response to her actions, Curry County: (i) shifted her to midnight shifts, reduced her involvement with S.O.R.T., ignored her seniority, and changed her *1241 duties in other ways, and (ii) terminated her employment. The Court will grant summary judgment on these facts for Curry County on Sinfuego's First Amendment claims. 119 The Court concludes that: (i) in expressing concerns about conditions at Curry Detention, Sinfuego acted on matters of public concern, although reporting sexual harassment, texting about the union, and meeting with Pyle about pay raises and unionizing did not involve public concerns; (ii) Sinfuego has not demonstrated a genuine factual question whether her activities motivated Curry County's adverse actions; and (iii) Curry County terminated Sinfuego's employment, because she engaged in inappropriate sexual activity, and Sinfuego has not established a genuine issue of fact otherwise. Further, Sinfuego has not demonstrated a genuine factual question contradicting that Curry County did not have a policy of retaliation. Having granted summary judgment on the First Amendment claims, the Court is left with only the state law, New Mexico Whistleblower Protection Act, claim. The Court will dismiss Sinfuego's remaining New Mexico Whistleblower Protection Act claim without prejudice for refiling in state court.

I. THE COURT WILL GRANT SUMMARY JUDGMENT FOR CURRY COUNTY ON SINFUEGO'S FIRST AMENDMENT CLAIMS .

Sinfuego brings three First Amendment claims, contending that Curry County violated her rights to freedom of speech, freedom to petition for grievances, and freedom of association. Curry County groups together the claims, analyzing them under the Tenth Circuit's five-part test for First Amendment freedom-of-speech retaliation claims. 120 See Memo. at 16. The parties do not argue about steps one and three of the analysis. Accordingly, the Court will not address these steps. Regarding the remaining steps, steps two, four, and five apply to public employees' retaliation claims under the Speech and Petition Clauses. See *1242 Borough of Duryea, Pa. v. Guarnieri , 564 U.S. 379 , 131 S.Ct. 2488 , 2500-01, 180 L.Ed.2d 408 (2011) ; Morris v. City of Colo. Springs , 666 F.3d 654 , 661 (10th Cir. 2012). However, "[i]t is not clear whether the [public concern] factor applies to retaliation claims involving union association, particularly where there is not a collective bargaining agreement in place." Cillo v. City of Greenwood Vill. , 739 F.3d 451 , 461 n.17 (10th Cir. 2013). The Court first addresses whether the second -- public concern -- factor applies to Sinfuego's freedom-of-association claim and then discusses whether Curry County has met the burden for summary judgment. The Court concludes that the public concern factor applies, and the Court grants summary judgment for Curry County on Sinfuego's First Amendment claims.

A. THE PUBLIC CONCERN FACTOR APPLIES TO RETALIATION CLAIMS IN THE LABOR UNION CONTEXT WHEN NO COLLECTIVE BARGAINING AGREEMENT IS IN PLACE.

Recent Tenth Circuit's cases leave unaddressed whether the public concern requirement applies to contexts, like Sinfuego's, in which a labor union and public employer have not entered a collective bargaining agreement. Until relatively recently, the Tenth Circuit refrained, "as a general matter," from deciding whether " Pickering 's public concern requirement applies to freedom of association claims." Merrifield v. Bd. of Cty. Comm'rs for Cty. of Santa Fe , 654 F.3d 1073 , 1084 (10th Cir. 2011) (" Merrifield ")(citing Shrum v. City of Coweta , 449 F.3d 1132 , 1138 (10th Cir. 2006) (" Shrum ") ). In Merrifield , the Tenth Circuit concluded that the public concern requirement "applies to a claim that a government employer retaliated against an employee for exercising the instrumental right of freedom of association for the purpose of engaging in speech, assembly, or petitioning for redress of grievances." Merrifield , 654 F.3d at 1081 -82 . The Tenth Circuit describes two association rights: (i) the "intrinsic right of freedom of association," which protects "choices to enter into and maintain certain intimate human relationships" as a "fundamental element of personal liberty"; and (ii) the "instrumental right of freedom of association," which "guarantees freedom of association ... as an indispensable means of preserving other individual liberties." Merrifield , 654 F.3d at 1080 (citing Roberts v. U.S. Jaycees , 468 U.S. 609 , 617-16, 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984) ). The Tenth Circuit groups union associations into the instrumental-right-of-freedom-of-associations category. The list of other Court of Appeals cases cited as applying the public concern requirement to the instrumental right of freedom of association include several cases involving claims about union association. See Merrifield , 654 F.3d at 1083 ; Cobb v. Pozzi , 363 F.3d 89 (2nd Cir. 2004) ; Griffin v. Thomas , 929 F.2d 1210 (7th Cir. 1991) ; Boals v. Gray , 775 F.2d 686 (6th Cir. 1985). The Tenth Circuit carves, however, an exception to Merrifield 's rule for matters involving public employee labor unions: "[I]n the specific context of public-employee labor unions, we have 'rejected the requirement that a worker demonstrate that his association with the union be a matter of public concern.' " Merrifield , 654 F.3d at 1084 (quoting Shrum , 449 F.3d at 1138 ). The question for the Court is whether "the specific context of public-employee labor unions" includes circumstances in which the public employer and labor union do not have a collective bargaining agreement. Merrifield , 654 F.3d at 1084 .

Other Courts of Appeals are divided on whether the "public concern" requirement applies to public employee freedom of association claims, but they do not address the specific question before the Court. The United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits *1243 apply the "public concern" requirement to public employee freedom of association claims. Cobb v. Pozzi , 363 F.3d at 107 ; Edwards v. City of Goldsboro , 178 F.3d 231 , 249-50 (4th Cir. 1999) ; Griffin v. Thomas , 929 F.2d at 1214 ; Boals v. Gray , 775 F.2d at 692 . The United States Court of Appeals for the Ninth Circuit applies the public concern requirement to "hybrid" freedom-of-speech and right-of-association claims. Hudson v. Craven , 403 F.3d 691 , 698 (9th Cir. 2005). In contrast, the United States Courts of Appeals for the Fifth and Eleventh Circuit do not ask that public employees demonstrate that their activities touch public concerns. See Boddie v. City of Columbus , 989 F.2d 745 , 749 (5th Cir. 1993) ; Hatcher v. Bd. of Pub. Educ. & Orphanage , 809 F.2d 1546 , 1558 (11th Cir. 1987). The Fifth Circuit, in an opinion written by the Honorable Patrick Higginbotham, United States Circuit Judge for the Fifth Circuit, noted that public employee union activity is "inevitably of public concern." Boddie v. City of Columbus , 989 F.2d at 750 . The United States Court of Appeals for the Third Circuit, in an opinion written by the Honorable Eugene E. Siler, United States District Judge for the Sixth Circuit, sitting by designation, concluded that "mere membership in a public union is always a matter of public concern." Palardy v. Twp. of Millburn , 906 F.3d 76 , 83 (3rd Cir. 2018) (unpublished). While the Third Circuit and the Fifth Circuit addressed public employee union activity, neither addressed a situation involving public employee labor union organization, rather than membership. Palardy v. Twp. of Millburn , 906 F.3d at 83 ; Boddie v. City of Columbus , 989 F.2d at 747 .

All three district courts in the Tenth Circuit to have addressed whether Merrifield governs such a situation determined that application of the "public concern" requirement recognized in the case, not the exception carved from Shrum , controls and that the "public concern" requirement applies. See Cardona v. Burbank , Case No. 2:12-CV-608 TS-BCW, 2018 WL 2723882 , at *9-12 (D. Utah June 6, 2018) (Stewart, J.); Hollenbach v. Burbank , Case No. 2:16-cv-00918-DBP, 2017 WL 2242861 , at *4-5 (D. Utah May 22, 2017) (Pead, M.J.); Cillo v. City of Greenwood Vill. , 900 F.Supp.2d 1181 , 1186-1193 (D. Colo. 2012) (Krieger, J.). Based on the language in Merrifield and Shrum , the Court agrees with these other district courts.

On the language's face, the exception in Merrifield may seem to speak to all facts involving public employee union association retaliation claims. The language in Merrifield refers simply to "[t]he specific context of public-employee labor unions." Merrifield , 654 F.3d at 1084 . Such language alone does not imply a distinction between labor unions with collective-bargaining agreements and those without such agreements, and, practically, forming a public-employee labor union seems part of the "context of public-employee labor unions."

The Tenth Circuit, however, recognized the exception in Merrifield , because in Shrum , the Tenth Circuit addressed whether, "in the ... context of public employee labor unions," "a worker [need] demonstrate that his association with the union be a matter of public concern," Shrum , 449 F.3d at 1138 , and Shrum addresses the context of public-employee labor unions with collective bargaining agreements with the public employer. See Shrum , 449 F.3d at 1139 ; Denton v. Yancey , 661 F. App'x 933 , 938 (10th Cir. 2016) ; Harvey v. Baker , 242 F. App'x 547 , 550 (10th Cir. 2007) ; Cardona v. Burbank , 2018 WL 2723882 , at *9-10 ; Hollenbach v. Burbank , 2017 WL 2242861 at *4-5 ; Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1188 ;

*1244 Thomas v. City of Bartlesville , No. 11-CV-0389-CVE-PJC, 2012 WL 1621398 , at *2 (N.D. Okla. May 9, 2012) (Eagan, J.); Blangsted v. Snowmass-Wildcat Fire Prot. Dist. , 2008 WL 4411440 , at *3-4. In Shrum , the Tenth Court concluded: "the First Amendment freedom of association protects public employees from retaliation for participation in a union with which their employers have signed a collective-bargaining agreement." Shrum , 449 F.3d at 1139 . As other district courts noted, in distinguishing between union association retaliation and Pickering , the Tenth Circuit relies heavily on the public employer/public employee labor union relationship's contractual nature. See 449 F.3d at 1139 . See Cardona v. Burbank , 2018 WL 2723882 , at *9 ; Hollenbach v. Burbank , 2017 WL 2242861 , at *4 ; Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1190 . The Tenth Circuit reasoned:

The Pickering test is predicated on the government's "interests as an employer in regulating the speech of its employees," which "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering , 391 U.S. at 568 , 88 S.Ct. 1731 .... Those interests relate to "the efficiency of the public services it performs through its employees." Id. Where a public employer has negotiated with an employee union and signed a collective-bargaining agreement, it has contractually agreed to the legitimacy of the union and of its employees' association with the union. The public employer has presumably received the benefit of its bargain, and is estopped from claiming that its "interests as an employer" are inconsistent with the freedom of its employees to associate with the union or to file grievances in accordance with its procedures.

Shrum , 449 F.3d at 1139 .

In Shrum , the Tenth Circuit recognizes earlier cases suggesting that, "in the specific context of public employee labor union," the employee need not satisfy the public concern factor. 449 F.3d at 1138 (citing Butcher v. City of McAlester , 956 F.2d 973 (1992) ; Morfin v. Albuquerque Pub. Sch. , 906 F.2d 1434 (10th Cir. 1990) ). The Tenth Circuit "offer[s] no lengthy explanation for not applying the public concern test" in the earlier cases. Shrum , 449 F.3d at 1138 . The earlier cases, Morfin v. Albuquerque Public Schools and Butcher v. City of McAlester , do not discuss associations with unions without collective bargaining agreements or the public concern requirement's applicability. See Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1187 -88 . In Morfin v. Albuquerque Public Schools , the Tenth Circuit answered a qualified immunity challenge by stating that "the unconstitutionality of retaliating against an employee for participating in a union," including filing grievances and working with a union other than the exclusive bargaining agent, "was clearly established." Morfin v. Albuquerque Pub. Sch. , 906 F.2d at 1439 . See Cardona v. Burbank , 2018 WL 2723882 , at *9 ; Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1187 -88 . In Butcher v. City of McAlester , the Tenth Circuit addressed whether Pickering 's balancing test, the third prong of the freedom-of-speech claim retaliation test, applies to union association retaliation claims, and notes: "[W]e fail to see how, where there is a collective bargaining agreement between the parties, the City had any legitimate interest in whether its firefighters elected to join the union and participate in its activities, or stay out of the union." Butcher v. City of McAlester , 956 F.2d at 979 . See Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1188 . The Tenth Circuit in Merrifield emphasized that neither Morfin v. Albuquerque Public Schools nor Butcher v. City of McAlester "discussed whether the public-concern requirement would apply to association-based retaliation claims." Merrifield , 654 F.3d at 1084 (quoting Shrum , 449 F.3d at 1139 ). See *1245 Hollenbach v. Burbank , 2017 WL 2242861 , at *4 ; Cillo v. City of Greenwood Vill. , 900 F.Supp.2d at 1190 .

Before Merrifield , the Honorable Walker David Miller, United States District Judge for the District of Colorado, read Morfin v. Albuquerque Public Schools , in which the Tenth Circuit concluded, that "the unconstitutionality of retaliating against an employee for participating in a union was clearly established," Morfin v. Albuquerque Pub. Sch. , 906 F.2d at 1439 , to stand for the proposition that the public concern requirement need not be addressed when an employee is organizing a union, see Blangsted v. Snowmass-Wildcat Fire Prot. Dist. , 2008 WL 4411440 , at *4 ("I conclude that the right to engage in activity of organizing a union is itself protected by the First Amendment without the necessity of a court determination that any particular activity of that union is a matter of public concern." (citing Shrum at 1139 ; Morfin v. Albuquerque Pub. Sch. , 906 F.2d at 1438 ) ). The Court disagrees with Judge Miller's analysis. The Tenth Circuit's statement about Morfin v. Albuquerque Public Schools in Merrifield undermines Judge Miller's conclusion in Blangsted v. Snowmass-Wildcat Fire Protection District that the public concern requirement does not apply in the context of public employee labor unions that have not yet formed. Blangsted v. Snowmass-Wildcat Fire Prot. Dist. , 2008 WL 4411440 , at *4. Further, applying the public concern requirement does not conflict with Morfin v. Albuquerque Public Schools ' assertion about freedom to associate with unions. As the United States Court of Appeals for the Sixth Circuit recognized in Boals v. Gray , "applying Connick to union speech and activity is not inconsistent with the well-established principle that such speech and activity is protected by the first amendment." Boals v. Gray , 775 F.2d 686 , 692 (6th Cir. 1985).

In Connick , ... the Court did not hold that speech by a public employee not on a matter of public interest was "totally beyond the protection of the First Amendment," but merely that such speech did not give rise to a cause of action in federal court "to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

Boals v. Gray , 775 F.2d at 692 (quoting Connick , 461 U.S. at 147 , 103 S.Ct. 1684 ).

Further, the Court is persuaded by King v. Downing , 58 F. App'x 830 (10th Cir. 2003) (unpublished), an unpublished opinion the Tenth Circuit wrote three years before Shrum . In King v. Downing , the Tenth Circuit applied the public concern requirement to a retaliation claim in the context of an employee organizing a union. See King v. Downing , 58 F. App'x 830 , 833. The Tenth Circuit explained: "[W]here the free speech and free association claims are identical, as they are in this case, application of the Pickering / Connick public concern test is appropriate." King v. Downing , 58 F. App'x at 833 , 2003 WL, at *2. While the unpublished opinion provides no binding precedent, the reasoning is consistent with that in Merrifield . The Tenth Circuit explained that the public concern requirement emerged from "doctrine regarding employee freedom of association." Merrifield , 654 F.3d at 1082 . "It would be ironic, if not unprincipled, if the public-concern requirement derived from freedom-of-association cases did not likewise apply to retaliation for such association." Merrifield , 654 F.3d at 1082 . "Moreover, to give special status to retaliation claims based on nonreligious instrumental freedom of association -- by eschewing the public-concern requirement in those cases -- would violate the Supreme Court's teaching that the 'political' First Amendment rights should be treated equally, at least in the government-employment context." Merrifield , 654 F.3d at 1082 .

*1246 Accordingly, the Court agrees with the courts in Cardona v. Burbank , Hollenbach v. Burbank , and Cillo v. City of Greenwood Village that the exception created from Shrum does not apply in this matter, where the Curry Officers had no collective bargaining agreement with Curry County, and the rule from Merrifield , that the public concern requirement applies to instrumental association claims, governs. 121 See Cardona v. Burbank , 2018 WL 2723882 , at *10 ; Hollenbach v. Burbank , 2017 WL 2242861 , at *4 ; Cillo v. City of Greenwood Village , 900 F.Supp.2d at 1180 , overruled on other grounds by Cillo v. City of Greenwood Village , 739 F.3d 451 . Because Sinfuego's First Amendment claims arise from the same events, the Court groups the claims together and analyzes Sinfuego's association claim under the with Sinfuego's other First Amendment claims.

B. SINFUEGO'S ACTIVITIES RELATED TO SAFETY AT CURRY DETENTION TOUCH MATTERS OF PUBLIC CONCERN, BUT SINFUEGO'S ACTIONS RELATED TO PAY AND UNIONIZING AND HER STATEMENT ABOUT SEXUAL HARASSMENT DO NOT INVOLVE PUBLIC CONCERNS.

Sinfuego is not clear in alleging which activities were protected and caused Curry County's alleged retaliation. Considering the entire response, the Court concludes that Sinfuego contends that Curry County retaliated against her for: (i) her comments on conditions at Curry Detention; (ii) her involvement in the December 3, 2012, meeting with Pyle; (iii) her December 6, 2012, text message about a union and Pyle's invitation to meet individually with Curry Officers; and (iv) her November 15, 2013, statement about her conversation with Hughes. See Response at 17-24. The Court discusses each action in turn. The Court concludes that Sinfuego's actions touched public concerns only when the actions involved safety at Curry Detention. These actions include her conversations with sergeants and lieutenants, and with Pyle in the December 3, 2012, meeting. Sinfuego's other actions do not rise to public concerns.

First, Sinfuego contends that she expressed concerns to her superior sergeants and lieutenants about conditions, including safety and sanitation issues, at Curry Detention. See Memo. at 17. Speech addresses a public matter when it is "fairly considered as relating to any matter of political, social, or other concern to the community." Connick , 461 U.S. at 146 , 103 S.Ct. 1684 . "Stated differently, 'speech that seeks to expose improper operations of the government or questions the integrity of government officials clearly concerns vital *1247 public interests.' " Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *4 (quoting Curtis v. Okla. City Pub. Sch. Bd. of Educ. , 147 F.3d at 1212 ). Safety and sanitation issues in a detention center concern "the failure of a governmental entity to properly carry out its public responsibilities." Eisenhour v. Weber Cty. , 744 F.3d 1220 , 1229 (10th Cir. 2014). Sinfuego addressed the speech to sergeants and lieutenants who had a better "ability to take action on" her concerns. Sanchez v. Matta , 2004 WL 3426405 , at *11, and no evidence suggests that she acted from a purely personal motive. Her action sought to "expose improper operations of the government or questions the integrity of government officials clearly concerns vital public interests.' " Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *4 (quoting Curtis v. Okla. City Pub. Sch. Bd. of Educ. , 147 F.3d at 1212 ). Accordingly, Sinfuego acted on matters of public concern in such comments.

Sinfuego also cites the Petition from Curry Officers to Sandoval as expressing her concerns about Curry Detention's conditions. See Response at 21. The Petition from Curry Officers to Sandoval focuses on "grievances of a purely personal nature," Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1205 , because it focuses on the "current scheduling process," Petition from Curry Officers to Sandoval at 1. The Curry Officers complain: "Shift bids are the only way to ensure that favoritism and other outside influences don't interfere with the scheduling process for officers. Shift biding will ensure that officers cannot complain about what shift or days they have off." Petition from Curry Officers to Sandoval at 1. As such speech pertains "to the [employee's] management and working conditions," it does not raise a matter of public concern. Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *5.

Second, Sinfuego, in meeting with Pyle, joined Curry Officers in voicing complaints about staffing, pay, unionizing, and safety. See Response ¶¶ 3(ii)-(iii) (citing Conf. Tr. at 4:17, id. at 5:15-17 ; id. at 6:15-18 ; id. at 8:4-12 ); Response at 18-19. Matters of pay, staffing, and unionizing are "grievances of a purely personal nature." Brammer-Hoelter v. Twin Peaks Charter Acad. , 492 F.3d at 1205 . In Torres v. Pueblo Board of County Commissioners , the Tenth Circuit concluded that speech "pertain[ing] specifically to the [employee's] management and working conditions," like Torres' speech in organizing a union, did not raise a matter of public concern. Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *5. The December 3, 2012, meeting focused mainly on concerns about pay, unionizing, and staff related solely to "management and working conditions." Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *5. To the extent Sinfuego acted in response to such concerns, therefore, she did not address public concerns.

The meeting with Pyle was not limited, however, to discussions about personal grievances. See Response ¶ 3(ii)-(iii), at 2 (citing Conf. Tr. at 4:17, id. at 5:15-17 ; id. at 6:15-18 ; id. at 8:4-12 ); Response at 18-19. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick , 461 U.S. at 147 , 103 S.Ct. 1684 . At the meeting, statements such as: "[T]he facility [was] not accommodating for safety and security," Reply at 3 (quoting Conf. Tr. at 6:15); and "[T]here have been a number of attacks on us once again because there is understaff[ing]," Reply at 3 (quoting Conf. Tr. at 8:3-12), were made. By bringing safety concerns to Pyle's attention, Garcia and Sinfuego raised the matters to an individual *1248 in a position to act on the issues. See Sanchez v. Matta , 2004 WL 3426405 , at *11. While Garcia and Sinfuego had personal stakes in speaking with Pyle, "the speaker's having a highly personal motive for a disclosure does not necessarily mean that the speech is not a matter of public concern." Eisenhour v. Weber Cty. , 744 F.3d 1220 , 1229 (10th Cir. 2014) (internal quotation marks omitted)(quoting Deutsch v. Jordan , 618 F.3d 1093 , 1100 (10th Cir. 2010) ). Safety in a detention center is "fairly considered as relating to [a] matter of political, social, or other concern to the community." Connick , 461 U.S. at 146 , 103 S.Ct. 1684 . Accordingly, the Court concludes to the extent that Sinfuego addressed safety conditions within Curry Detention, her actions touch public concerns.

Third, the December 6, 2012, text message notified Curry Officers about steps in the union's formation, including Pyle's offer to speak individually with Curry Officers. See Memo. ¶ 10, at 4-5 (citing Pyle Email at 1). While Sinfuego is correct that "the First Amendment protects the right of a public employee to join and participate in a labor union," Cillo v. City of Greenwood Village , 739 F.3d at 460 , actions do not touch a matter of public concern "merely because [they are] union-related," Torres v. Pueblo Bd. of Cty. Comm'rs , 229 F.3d 1165 , 2000 WL 1346347 , at *5. Sinfuego argues that, because, in her text, she accuses Pyle of acting illegally when he offered to meet individually with Curry Officers, the December 6, 2012, text message exposes a matter of public concern. See Response at 19-20. Sinfuego did not direct, however, the statement about Pyle to an individual who would address the illegality. The December 6, 2012, text message notified Curry Officers about steps in organizing the union; the information about Pyle's offer is relevant to this union formation. See Memo. ¶ 10, at 4-5 (citing Pyle Email at 1). Logistics for forming a union at Curry Detention address personal workplace concerns, which do not relate to a "matter of political, social, or other concern to the community." Connick , 461 U.S. at 146 , 103 S.Ct. 1684 .

Finally, Sinfuego suggests that her statement about Hughes' comments resulted in her termination. See Response at 23. Complaints about personal experiences with sexual harassment do not rise to public concerns. See David v. City & Cty. of Denver , 101 F.3d 1344 , 1356 (10th Cir. 1996). Accord Gerald v. Locksley , 785 F.Supp.2d at 1129-31 (concluding that EEOC complaint about one incident experienced by employee did not touch a public concern). Accordingly, Sinfuego's statement about the potential sexual harassment does not discuss a public concern.

C. SINFUEGO'S ACTIVITIES DID NOT MOTIVATE CURRY COUNTY TO ENGAGE IN ADVERSE EMPLOYMENT ACTIONS.

Even if Sinfuego's activities involved matters of public concern, she must show a genuine issue of fact whether "the constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment." Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cty. , 587 F.3d at 1236 (internal quotation marks omitted)(quoting Maestas v. Segura , 416 F.3d at 1188 & n.5 ). Sinfuego argues that Curry County took adverse actions against her when Curry County changed her duties after Sandoval's appointment as Curry Detention Administrator and when Curry County terminated Sinfuego's employment. See Response at 20-24. The Court concludes that only Sinfuego's termination constitutes an adverse employment action and that a question of fact exists whether Sinfuego's removal from S.O.R.T. is an adverse employment action.

*1249 The Court, however, further holds that Sinfuego cannot show a genuine factual question whether her actions motivated Curry County to retaliate against her. The Court thus concludes that Sinfuego's claims fail at the Garcetti / Pickering test's step four, and that summary judgment is appropriate for Counts I, II, and III.

1. Terminating Sinfuego Constitutes an Adverse Employment Action, and a Genuine Factual Question Exists Whether Removing Sinfuego from S.O.R.T. is an Adverse Employment Action, but Sinfuego has Established No Other Genuine Factual Questions Whether Curry County Engaged in Adverse Employment Actions .

Sinfuego contends that Curry County retaliated against her by terminating her employment, removing her from S.O.R.T., putting her on the night shift, assigning her to the women's annex, ignoring her seniority, and stripping her of other duties. See Response at 22. Curry County argues that no genuine factual question exists whether any action which Sinfuego suffered short of termination is not an "adverse employment action." Memo. at 20 n.8. Sinfuego does not respond to Curry County's argument; Sinfuego focuses on Curry County's arguments about its motivations. See Response at 20-24. The Court need not decide the Motion on this issue, but the Court will briefly address Curry County's contention. The Court agrees with Curry County that Sinfuego's termination constitutes an adverse employment action, but the Court concludes that Sinfuego demonstrates a genuine factual question whether her removal from S.O.R.T. constitutes an adverse employment action. 122

The standard for determining whether an employer subjected an employee to an adverse employment action is the same for retaliation claims under the First Amendment and Title VII. See Hook v. Regents of Univ. of Cal. , 394 F. App'x at 535 . "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. , 595 F.3d at 1133 (internal quotation marks

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