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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW
MEXICOSHANE UTLEY, BETH UTLEY,LISA HAWS, and MATT
WILCOX,Plaintiffs,v. CV_____________________BOARD OF COMMISSIONERS,
SAN JUAN COUNTY,SAN JUAN COUNTY SHERIFFS OFFICE,KEN CHRISTESEN, in
his individual capacity,RON ANDERSON, in his individual capacity,
andBRICE CURRENT, in his individual capacity.COMPLAINT FOR
VIOLATIONS OF THE FIRST AND FOURTEENTHAMENDMENTS OF THE UNITED
STATES CONSTITUTION42 U.S.C. 1983,BREACH OF AN IMPLIED CONTRACT OF
EMPLOYMENT, ANDVIOLATIONS OF THE GOVERNMENT CONDUCT ACTCOME NOW
Plaintiffs Shane Utley, Beth Utley, Lisa Haws, and Matt Wilcox, by
andthrough their counsel, Law Offices of Michael E. Mozes, P.C.,
and hereby submit theirComplaint for Violations of the First and
Fourteenth Amendments of the United StatesConstitution42 U.S.C.
1983, Breach of an Implied Contract of Employment, and Violations
ofthe Government Conduct Act. I. JURISDICTION1. This cases arises
under 42 U.S.C. 1983 for violations of the First and
FourteenthAmendments of the United States Constitution and New
Mexico common law.2. Plaintiff Shane Utley is, and at all times
material hereto has been, a resident of theCounty of San Juan,
State of New Mexico.3. Plaintiff Beth Utley is, and at all times
material hereto has been, a resident of theCounty of San Juan,
State of New Mexico.
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4. Plaintiff Lisa Haws is, and at all times material hereto has
been, a resident of theCounty of San Juan, State of New Mexico.5.
Plaintiff Matt Wilcox is, and at all times material hereto has
been, a resident of theCounty of San Juan, State of New Mexico.6.
Defendant Board of Commissioners, San Juan County is, and at all
times materialhereto has been, a governmental entity of the County
of San Juan, located and principally doingbusiness in, the County
of San Juan, State of New Mexico.7. Defendant San Juan County
Sheriffs Office [hereinafter SJCSO] is, and at alltimes material
hereto has been, a governmental entity of the County of San Juan,
located andprincipally doing business in, the County of San Juan,
State of New Mexico.8. Defendant Ken Christesen [hereinafter
Christesen] is, based upon informationand belief, a resident of the
County of San Juan, State of New Mexico.9. Defendant Ron Anderson
[hereinafter Anderson], is, based upon informationand belief, a
resident of the County of San Juan, State of New Mexico.10.
Defendant Brice Current [hereinafter Current] is, based upon
information andbelief, a resident of the County of San Juan, State
of New Mexico.11. The federal District Court has jurisdiction over
the subject matter of Plaintiffsclaims through 28 U.S.C. 1331,
federal question jurisdiction, and pendent jurisdiction
onPlaintiffs state law claims.12. This Court has personal
jurisdiction over the parties to this action.13. Venue is proper in
this Court.2
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II. FACTUAL ALLEGATIONS14. Plaintiffs hereby adopt and
incorporate by reference paragraphs 1 through 13 asset forth
above.15. Christesen, at all times relevant to Plaintiffs claims,
exercised the job duties andresponsibilities of the Sheriff of San
Juan County. In his position of Sheriff, Christesenconstituted the
policy-making authority and highest operational authority of the
SJCSO. Christesen also constituted the ultimate authority in the
SJCSO with respect to the application ofSan Juan County personnel
policies and procedures.16. During the period of time relevant to
Plaintiffs claims, Anderson exercised theduties and
responsibilities of the Undersheriff of San Juan County. Anderson
exercised policy-making authority and had operational authority
over the nature of Plaintiffs duties and theapplication of San Juan
County personnel policies and procedures.17. Current, who occupied
principally the duties of a lieutenant or captain during theperiod
of time pertinent to Plaintiffs claims, often acted as the proxy
and spokesperson for thewill, opinions, and directions of
Christesen and Andersonas set forth more fully below.18. At all
times relevant hereto, Plaintiffs were employees of the SJCSO.
Plaintiffscontinue to remain employed with the SJCSO.19. Shane
Utley, during all times relevant hereto, performed the job duties
andresponsibilities of a Captain. In that position, Mr. Utleys
principal job duties were related toSheriffs Office Operations
Division Captain. Mr. Utley was directly supervised by
Christesenand Anderson.20. Beth Utley, during all times relevant
hereto, performed the job duties and3
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responsibilities of a Public Information Officer (PIO) and
Community Relations Coordinator. Atall times relevant hereto, Ms.
Utleys direct supervisor was Christesen and her indirect
supervisorwas Anderson.21. Lisa Haws, during the relevant time
pertinent to her claims, principally performedthe job duties and
responsibilities of a Lieutenant. In that position, Haws mainly
supervised thepatrol division. Haws supervisors were Mr. Utley and,
indirectly, Anderson and Christesen.22. Matt Wilcox, during the
period of time pertinent to his claims, performed theduties and
responsibilities of a Lieutenant and Sergeant. Mr. Wilcoxs direct
supervisors wereMs. Haws, Shane Ferrari and, indirectly, Mr. Utley,
Anderson and Christesen.23. On March 1, 2010, Mr. Wilcox received a
SJCSO promotion from Sergeant toLieutenant. The Sheriff at the time
was Mark McCloskey. Based upon the feedback from thegreat majority
of the Sergeants, McCloskey instituted in February 2010 a promotion
process fromsergeant to lieutenant a Command Staff interview
process. This process involved a writtenexercise, an interview with
command staff, and staff evaluations. These same elements
appearedin the discretionary assessment process set forth in Policy
No. 3000-12 for promotions.24. As a result of the approved
promotional process, the SJCSO promoted Mr.Wilcox into a Support
Lieutenant position, effective March 7, 2010.25. On September 25,
2010, Captain Jim Smith of the SJCSO gave Mr. Wilcox a 6-month
performance review, noting that Mr. Wilcox had done an excellent
job as SupportLieutenant. The review concluded that Mr. Wilcox had
no areas of performance that neededimprovement.26. In early 2011,
the citizens of San Juan County elected Christesen as the new4
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Sheriff. During the election, Mr. Wilcox publicly supported the
candidacy of Marlyn Wyatt forSheriff and vocally opposed
Christesen.27. While the Sheriffs campaign was in full swing, a
number of salaried SJCSOemployees approached Mr. Wilcox and advised
him that Christesen was stating that Mr. Wilcoxwould be demoted if
Christesen won the Sheriffs election.28. Shortly before the vote
for Sheriff, Christesen went to Mr. Wilcoxs house andrequested that
Mr. Wilcox cease speaking against Christesen. When Mr. Wilcox
remarked thathe had heard that Christesen intended to demote him,
Christesen promised Mr. Wilcox that inexchange for Mr. Wilcoxs
refusal to publicly speak out against Christesen that if
Christesenwere elected, he would not demote Mr. Wilcox.29.
Christesen won the election for sheriff and took office in January
2011.30. On February 2, 2011, Christesen wrote Mr. Wilcox a
memorandum, advising thatMr. Wilcoxs rank of lieutenant was being
rescinded and a different assessment process wasbeing utilized. In
addition, Christesen stated that Mr. Wilcox could not grieve this
personnelaction. Christesen, by rescinding Mr. Wilcoxs lieutenancy,
violated both the promotional policyin place and the Command Staff
interview process established by McCloskey.31. While the assessment
process Christesen explained ran its course, Mr. Wilcoxmaintained
his Lieutenant rank and pay. On April 11, 2011, Christesen advised
Mr. Wilcox thateffective April 17, 2011 Mr. Wilcox would be demoted
to a sergeants position with reduced pay.32. According to the
assessment administered by a panel under Christesens control,Mr.
Wilcox scored out from among the seven eligible sergeants with the
lowest point total for theassessment. This score is outlandish and
constitutes Christesens attempt to not only foreclose5
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Mr. Wilcox from holding on to his lieutenants position, but also
any future lieutenant opening. Christesen represented to other
SJCSO employees that Mr. Wilcox would never be promotedwhile
Christesen remained Sheriff.33. The recision of Mr. Wilcoxs rank,
the failure to promote Mr. Wilcox into thelieutenant position, and
the loss of pay and level of duties associated with the demotion
areadverse employment actions in which Mr. Wilcoxs exercise of free
speech and politicalassociations were a substantial or motivating
factor.34. During the period of time Mr. Wilcox has performed
duties as a sergeant hisperformance evaluations have been
Excellent. In addition, during the period of time he hasbeen a
sergeant, Mr. Wilcox has received awards and commendations for his
performance.35. On January 31, 2013, the SJCSO, under Currents
signature, issued Mr. Wilcox aletter of reprimand for allegations
related to communications with SJCSO deputies. The letter
ofreprimand was an unsupported, groundless, and retaliatory
over-reaction to a minor incident. Written reprimands, pursuant to
SJCSO Policy No. 3000-05, are to issue for substantial orrepeated
violations of policy in which verbal warnings or verbal counseling
is not appropriate orhas proven to be ineffective. A number of
provisions in the SJCSO were violated, not the leastof which are
the investigatory requirements. This was investigated, but no
progressive disciplinewas handed out. There are no similar
violations in Mr. Wilcoxs file.36. As of this date, Mr. Wilcox
continues to be a target or retaliatory conduct anddisparate
treatment because now, in the midst of another electoral season
involving the Sheriff,Mr. Wilcox is not politically supporting
Christesens re-election.37. Mr. Wilcox as recently as late March
2014 has reported to San Juan Countys6
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Human Resources Department (HR) that he is being subject to
retaliation and a hostile workenvironment. Based on Mr. Wilcoxs
knowledge, the HR Department has done nothing toprotect him and
investigate his complaints. By and large, the HR Department has
beenunresponsive to Mr. Wilcoxs concerns.38. Ms. Haws, who for a
period of time has supervised Mr. Wilcox, has suffered anon-going
campaign of retaliation, hostility, and disparate treatment from
the SJCSO and theindividually-named defendants.39. Effective
February 8, 2009, the SJCSO promoted Ms. Haws into the position
ofPatrol Lieutenant in the SJCSO. Ms. Haws worked a few months on
patrol before beingpromoted to the Detective Division, where she
became the Detective Lieutenant of the SJCSO. Ms. Haws is the first
and only female ever promoted into a lieutenants position at the
SJCSO.40. During the 2010-11 campaign for Sheriff, Ms. Haws vocally
supported thecandidacy of Marlyn Wyatt. Christesen repeatedly
commented during the Sheriffs campaignthat he intended to get rid
of the Haws mafia. Ms. Haws husband, Neil Haws, is also alieutenant
with the SJCSO. 41. Christesen actually went door-to-door during
the campaign and stated to votersthat if Christesen was elected he
would get rid of the Haws mafia. There are numerouswitnesses to
these comments. Indeed, on the night of his election, Christesen
reiterated to agroup of people that he now intended to get rid of
the Haws mafia.42. Shortly after being elected as Sheriff in
January 2011, Christesen began hisretaliatory campaign. In April
2011, Christesen demoted Ms. Haws to a patrol lieutenantposition.
Although the demotion did not result in a loss of pay to Ms. Haws,
the demotion did7
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lead to reduced job duties, diminished promotional
opportunities, and prestige. The male whoreplaced Ms. Haws in the
detective lieutenant position was significantly
lesser-qualified.43. Christesen communicated to other SJCSO
employees that he had demoted Ms.Haws for the purpose of forcing
Ms. Haws to involuntarily resign.44. At all times relevant during
to Ms. Haws claims, she performed her job duties
andresponsibilities in an excellent manner, as noted in the
relevant performance evaluations. Inaddition, during the period
2011-2014, Ms. Haws has received a number of commendations forher
outstanding performance.45. Ms. Haws has made known for years
within the SJCSO her desire to attend theprestigious FBI National
Academy (NA). The NA is a training for command stafflieutenantor
abovethat has limited attendance. In July 2011, Shane Ferrari, who
had recently received apromotion into a lieutenants position and
was still a probationary employee was selected byChristesen to
attend the NA. 46. In late 2011 or early 2012, Daniel Webb, another
recently promoted lieutenant,advised Ms. Haws that he would be
going to the NA next. Ms. Haws became rightfully upsetand
complained to Christesen that although she was the senior
lieutenant she was beingimproperly passed over to receive the NA
training. Males were being regularly selected in theface of Ms.
Haws known desire to attend the training. 47. The NA training can
and does affect promotional opportunities within the SJCSO.48. In
September 2012, Ms. Haws again learned that she was being passed
over forthe NA training in favor of another recently promoted male
lieutenant. Ms. Haws approachedChristesen and asked if she could be
considered for the NA. Christesen responded Yes and8
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elaborated that it did not matter to him whether Ms. Haws or
another male lieutenant attended thetraining first. Ms. Haws was
senior to the male applicant in time in service.49. Nevertheless,
time passed and Ms. Haws was not selected by Christesen to
attendthe NA training.50. In September 2013, Luke Miller, the
Albuquerque Coordinator of the NA,specifically stated to the SJCSO
that the FBI wanted Ms. Haws to attend the training.
Christesenrefused to allow Ms. Haws to attend the training. Even
contact from the FBI SAC inAlbuquerque could not convince
Christesen to allow Ms. Haws to attend the training. The FBIrequest
was due, in part, to the shortage of females who qualified for and
attended the NA.51. On March 12, 2014, Current entered Ms. Haws
office to speak with her aboutMr. Utleys support for Christesen
related to the upcoming June 2014 election for Sheriff. Current
essentially stated that Mr. Utley was required to actively support
Christesen during theelection. Otherwise, negative consequences
would be attached to Mr. Utleys lack of support. On March 17, 2014,
Christesen told Ms. Haws that Mr. Utley is playing a dangerous game
andgoing down a dangerous road. Ms. Haws understood that Christesen
was referring to Mr.Utley supporting the Sheriff during the
election campaign.52. On March 17, 2014, Christesen advised Ms.
Haws that she had been chosen toattend the NA but Christesen would
not permit it at the time. Christesen also explained that hehad
notified the FBI that his refusal was due to Christesens view that
sending Ms. Haws becauseshe was a female was inappropriate. This
conversation occurred in the context of the upcomingelections and
Ms. Haws statement to Christesen that she would support him. Haws
made thisstatement because she was tired of three years of
disparate treatment and hardship. Ms. Haws9
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believed she had no other choice and feared further retaliation.
53. Ms. Haws commented to Christesen that she was being passed over
repeatedly bymales who had lesser service time and experience in
the SJCSO. Ms. Haws squarely askedChristesen if she was being
discriminated against because of the fact that Ms. Haws had
notsupported Christesen in the last Sheriffs election.54. When Ms.
Haws requested on March 17th that Christesen give her a
definitiveanswer on whether she would ever be able to attend the
NA, Christesen responded that thedecision would not be made until
after the upcoming Sheriffs election.55. Ms. Haws understood at
that point that Christesen was connecting any possibilityof her
ever attending the NA to her electoral support for Christesen. 56.
On March 20, 2014, Ms. Haws attended a luncheon sponsored by the
NA. Ms.Haws spoke with Miller. Miller related to Ms. Haws the fact
that the FBI had provided twopositions in the NA to the SJCSO for
the express purpose of having Ms. Haws attend. Milleralso shared
the conversation the FBI had in which it was specifically requested
of the Sheriff thathe allow Ms. Haws to attend the NA.57. On March
24, 2014, Ms. Haws filed an Equal Employment OpportunityCommission
(EEOC) complaint, alleging that she had been treated differently
from other maleswith respect to attendance at the NA because she is
female.58. By the date of the filing EEOC complaint, Ms. Haws was
senior in time in rankand service to the following males who had
attended or were scheduled or promised to attend theNAShane
Ferrari, Cory Tanner, and Daniel Webb.59. On March 25, 2014, Ms.
Haws contacted the San Juan County HR for the purpose10
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of filing a complaint against the SJCSO and Christesen related
to the workplace discriminationharassment, and hostility she
encountered. San Juan County HR refused to take her
complaints,improperly stating that since a complaint had been filed
in the EEOC that HR could do nothingfor Ms. Haws. Such is not
supported in the San Juan County Employee Handbook generally
andspecifically in Sections 18 and 19.60. Following the filing of
her EEOC Complaint, Ms. Haws has been subjected to ahostile work
environment by the SJCSO, Christesen, and Anderson. The Sheriff no
longerspeaks with Ms. Haws, ignores her in the workplace, and has
created a work environment whereMs. Haws is isolated, alienated,
and separate. 61. On March 27, 2014, Undersheriff Anderson met with
the SJCSO staff and statedthat Anderson would henceforth monitor
the comings and goings of staff. For many years thepolicy had been
that SJCSO employees could come and go freely as long as they
worked their40-hour weeks. This new policy was clear retaliation
for the complaints lodged by Ms. Hawsand others.62. On January 1,
2011, Ms. Utley became the Public Information Officer (PIO) forthe
SJCSO. Her direct supervisor was the Sheriff, Ken Christesen and
her indirect supervisorwas the Undersheriff, Ron Anderson.63. In
December 2011, Ms. Utley received an Exceptional Service Award for
heroutstanding work ethic and job performance.64. During the period
January 1, 2011 until April 11, 2013, Ms. Utley received
nocomplaints from Anderson or Christesen related to her work
performance. It is an obligation of aSJCSO to advise employees of
any performance-related problems. Ms. Utleys performance was11
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evaluated by Anderson on April 25, 2012 for the 2011 work year.
Anderson rated Ms. Utley as agood employee. No needs improvement
ratings appear on this evaluation65. In January 2013, Ms. Utley
received a certification that qualified her as the onlycertified
PIO in San Juan County.66. On April 11, 2013, Christesen and
Anderson met with Ms. Utley. Prior to thismeeting, Anderson and
Current had for several weeks ignored Ms. Utley and refused to
speakwith her. Ms. Utley did not know what caused this behavior.
67. Christesen and Anderson presented Ms. Utley with her 2012
evaluation, whichincluded an number of Needs Improvement ratings.
Prior to presenting Ms. Utley with thisevaluation, neither
Christesen nor Anderson had complained to Ms. Utley about any facet
of herwork performance. 68. The anniversary date of Ms. Utleys
employment with the SJCSO was January2012. The 2012 performance
evaluation, according to San Juan County personnel policies, wasto
be completed within 30 days of Ms. Utleys anniversary date. It was
not.69. In such circumstances, the San Juan County Employee
Handbook, Section 13.3,the presumption is that the employees
performance is satisfactory and a step increase is awarded.70. Ms.
Utley is the only female employee supervised by Anderson. Other
maleemployees supervised by Anderson received notice of performance
deficiencies and were givenopportunities to improve. Ms. Utley was
not. In addition, Ms. Utley asserts that the needsimprovement
ratings noted on the April 11, 2013 evaluation were fictitious,
retaliatory, andmade with evil intent. Christesen and Anderson
ignored and gave no consideration to Ms.Utleys explanations related
to the allegations of poor performance. In large part, the12
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deficiencies noted on the performance evaluation were due to the
negligence and failure torespond appropriately of Christesen and
Anderson. 71. This evaluation meeting turned hostile and
threatening when Ms. Utley opposedthe ratings given or tried to
present explanations for the performance deficiencies alleged. 72.
Christesen and Anderson forced Ms. Utley to resign from SJCSO
FoundationBoard, of which she was President, as an order that
surfaced during the evaluation conference.73. On April 11, 2013, as
a condition of continued employment, Christesen andAnderson
compelled Ms. Utley to sign a Performance Improvement Plan (PIP).
Some of theconditions of the PIP were the following: (1) a monthly
activity report to be presented toChristesen and Anderson; (2) any
meetings with any and all contacts outside the SheriffsOffice were
to be sent to Christesen and Anderson; and (3) on-going monthly
meetings withChristesen and Anderson for the purpose of updating
Ms. Utleys activities.74. These PIP requirements were not required
of other SJCSO employees andconstituted harassment of Ms. Utley and
an improper attempt to control the movements andinteractions of Ms.
Utley.75. In August 2013, Ms. Utley met with Christesen and
Anderson to supposedlyreview how Ms. Utley was performing under the
provisions of the PIP. During the meeting,neither Christesen nor
Anderson stated anything that directly corresponded to any of Ms.
Utleysjob duties or her general work performance. This was
supposedly the first meeting called forunder the provisions of the
PIP. The meeting was a farce with Christesen and Anderson
referringto golf games and television shows.76. Ms. Utley did not
have another update meeting related to the PIP with13
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Christesen and Anderson until December 18, 2013. This meeting
was not much better than theAugust meeting; however, Christesen and
Anderson did communicate to Ms. Utley that she wasdoing a good
job.77. In January 2014, the SJCSO, under the direction of
Christesen, began to curtailthe PIO duties of Ms. Utleywithout
reason or explanation. 78. In January 2014, Ms. Utley learned that
Elizabeth Valdez was retiring from herposition of Office Manager
with the SJCSO. At that time, Ms. Utley was the only qualifiedSJCSO
employee who could meet the requirements of the position.79.
Christesen mentioned that he was going to place an under-qualified
male, EliLisko, into Valdezs former position. When Christesen
received disagreement with this decision,he then promoted two
under-qualified females into Valdezs former position. He also gave
EliLisko a promotion.80. In order to make these personnel
decisions, Christesen had to (1) change thequalifications for the
position; (2) fail to provide any consideration for Ms. Utleys
interest in theposition; (3) change the position(s) to a non-exempt
job; and (4) manipulate and pervert thepromotion and classification
policies of the SJCSO. At no point did Christesen engage
therequired assessment process for this position.81. By now Current
was speaking negatively about Ms. Utley in the workplace
andcriticizing Ms. Utleys work performance. At no point in time did
Current exercise any directsupervision of Ms. Utley. 82. Current
stated to Shane Utley that Ms. Utley was just trying to sabotage
theSheriff and make him look bad after Current believed Ms. Utley
had not done all in her power14
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to make a SJCSO golf tournament a success. Current even told
this to people outside theSheriffs Office. During a separate golf
outing, Current spent a considerable amount of time badmouthing Ms.
Utley to the Chief of Police of the City of Bloomfield, Mike
Kovacs. Currentscharges were without any evidence and patently
false.83. Current expressed that Ms. Utley was not a good PIO and
should be fired. Duringa March 2014 meeting related to budget cuts,
Current expressed publicly his opinion that if anyjobs are to be
cut, then Beths should be the first to go. 84. Ms. Utley is an
exempt employee. 85. It has been the custom and practice at the
SJCSO for years that exempt employeescould take care of personal
matters during a regular work dayas long as the employee made upthe
time lost during the work week so that the total time at work
amounts to at least 40 hours. Inaddition, if an exempt employee
works over 40 hours a week, the employee could take the extratime
off during a subsequent week. 86. Ms. Utley is the only exempt
employee that is required to notify Anderson andChristesen of her
whereabouts during the work day. 87. Current has stated that Ms.
Utley makes too much money and that Valdez alsomade too much money.
The only SJCSO employees Current has made these comments about
arethese two females.88. The individually-named Defendants have
isolated and alienated Ms. Utley in theworkplace by not speaking
with her, refusing to address her work concerns and complaints,
using ambush techniques to evaluate work performance, and spreading
negative, false, and maliciousrumors about her as an employee and
person. These efforts to discredit Ms. Utley have created a15
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hostile work environment in which Ms. Utley feels alone, without
recourse, and abandoned.89. On March 24, 2014, Ms. Utley filed an
EEOC complaint alleging that she hadbeen subjected to a hostile
work environment and discriminated against because of her sex. 90.
Ms. Utley also filed a harassment complaint with San Juan County
HR. As of thedate of this complaint, Ms. Utley is unaware of any
investigation or other activity related to thisharassment
complaint.91. Mr. Utley learned in early March 2014 that a close
family friend, Mike Kovacs,would be running for Sheriff of San Juan
County. Although Kovacs was a long-time friend ofthe Utley family,
Mr. Utley told Kovacs that Mr. Utley had already disclosed to
Christesen thatMr. Utley would support Christesens re-election. The
election for Sheriff is to be held in June2014. 92. During the
course of the last three years, Christesen has represented to Mr.
Utleyand others in the SJCSO on a number of occasions that Mr.
Utley would be appointedUndersheriff should Christesen prevail in
the June 2014 elections.93. In March 2014, Mr. Utley learned
through other sources that Christesen wasunhappy with Mr. Utley
because Christesen believed that Mr. Utley would support Kovacs in
theupcoming election.94. Mr. Utley then spoke with Christesen in
the SJCSO workplace that Mr. Utleyremained loyal to Christesen and
would support Christesen in the election. 95. On March 11, 2014, a
conversation took place in the SJCSO workplace thatinvolved Mr.
Utley, Christesen, Shane Ferrari, Anderson, and Current. The
conversationcentered on the June 2014 election for Sheriff. During
the conversation Christesen stated he16
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needed to know that he had the support of all present. Current
directly asked Mr. Utley ifChristesen could count on his
support.96. Under the guise of taking a phone call, Christesen,
Anderson, and Ferrari then leftthe room, leaving Mr. Utley and
Current behind. Current, acting as the mouthpiece ofChristesen,
then began questioning the support of Mr. Utley. When Mr. Utley
reiterated hissupport for Christesen, Current responded by stating
that Mr. Utley needed to get donations forChristesens re-election
bid, needed to have a campaign sign put in his front yard that
supportedChristesen, needed to get his entire family involved in
getting Christesen re-elected, and neededto do more towards
Christesens re-election.97. While this conversation ensued between
Mr. Utley and Current, Christesenroamed the hallway outside the
room, constantly looking inside. It was obvious that Current
wasacting at the behest of Christesen and merely repeating
questions and comments Current andChristesen had discussed
beforehand. As proof of this motive, Current, who had no authority
tospeak about or direct such matters, stated that Mr. Utley would
only be Christesens Undersheriffif he complied with the demands
Current was making. On March 12, 2014, Captain BriceCurrent, while
on duty, reiterated the above conversation he had with Mr. Utley to
LieutenantLisa Haws (Mr. Utleys subordinate) in Ms. Haws office.98.
On March 18, 2014, Current again spoke with Mr. Utley in the
workplace aboutsupporting Christesen during the election. Current
noted that Mr. Utley did not sufficientlysupport the re-election of
Christesen. Current complained once more that Utley needed
tosupport Christesen financially and do more. Current demanded that
Mr. Utley have his parentsplace a large campaign sign supporting
Christesen on their property. When Mr. Utley responded17
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that he could not do that because his family supported Kovacs,
Current angrily replied that Mr.Utley could force his parents to
place such a sign. That evening Mr. Utley attended a
campaignfunction with Christesen, demonstrating his support for
Christesens re-election. 99. On March 18, 2014, Mr. Utley also
spoke with Christesen, stating that he fearedfor his job security
because of what Ms. Haws had communicated about Christesen
remarkingthat Mr. Utley was playing a dangerous game. Mr. Utleys
concern was genuine and he fearedthat he could be terminated at any
time.100. A few days later Ferrari advised Mr. Utley that
Christesen was concerned aboutwhether Mr. Utley would support
Christesens re-election bid.101. Mr. Utley also learned through
Lieutenant Neil Haws that Christesen wascomplaining about Mr.
Utleys supposed lack of support. Lt. Haws also stated that
Christesenmade the comment to him that Mr. Utley was playing a
dangerous game. During this period,Christesen made known to a
number of SJCSO employees that Christesen was unhappy with thelevel
of Mr. Utleys political support.102. In an under-handed effort to
try to win the Utleys campaign support, Christesendelayed giving
both Mr. and Ms. Utley their yearly evaluations, which were due in
January 2014. Based upon Christesens comments to other SJCSO
employees, Christesen believed that heneeded the Utleys political
support to win the June 2014 election; however, once that
supportwas no longer necessary, it was rumored Christesen would
remove both Utleys from the SJCSO.103. During March 2014, the SJCSO
was permeated with political conversationsrelated to garnering
support for Christesen. These conversations were coercive and
placedenormous amounts of pressure upon the Utleys and others. In
the Utleys case, Christesen made18
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it clear to that political support for his re-election equated
with retention of employment in theSJCSO.104. In the midst of these
circumstances, Mr. Utley decided to write Christesen in lateMarch
2014. Mr. Utley, by now mentally and emotionally worn down by the
pressure exertedupon him to support Christesen, told Christesen
that he would no longer support Christesens re-election. Mr. Utley
also requested that Christesen notify Current to quit speaking
poorly abouthis wife.105. On March 24, 2014, Mr. Utley filed a
claim with the San Juan County HR,claiming that Christesen and
Anderson were violating County policy by campaigning while onduty,
violating the Governmental Conduct Act through their unethical
behavior, and subjectinghim to a hostile work environment. 106.
After filing his complaint, on the very same day, Christesen and
Andersonconfronted Mr. Utley about the filing of his claims.
Christesen asked Mr. Utley why Mr. Utleyhad gone to HR and filed
his complaint. The conversation was inappropriate and caused
Mr.Utley great discomfort because Mr. Utley was forced to justify
the filing of the hostile workenvironment claim. 107. The head of
San Juan County HR, Charlene Scott, notified Mr. Utley that
hiscomplaint was going nowhereleading Mr. Utley to believe that he
would be quickly retaliatedagainst and the hostile work environment
would turn more hostile. Scott is required under thepolicies and
procedures of Ordinance 34 of San Juan County to investigate Mr.
Utleysclaimsnot summarily dismiss them.108. Unsurprisingly,
retaliation quickly began. The custom and practice, as stated19
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above, was to allow employees time to handle personal and other
matters during the workday aslong as the employee made the time up
during the week. On March 27, 2014, Anderson advisedthe SJCSO staff
that employees would henceforth be required to report any off-work
activitiesdirectly to Anderson for approval. This by-passed the
clear chain of command and removedsupervisory duties from Mr.
Utleys and others purviews. Moreover, since the facts
andcircumstances related to Mr. Utleys political support for
Christesen arose and the filing of thehostile work environment
complaint, Mr. Utley has been subjected to on-going harassment
andworkplace hostility, including, but not limited to removal of
some of his supervisory duties,workplace intimidation and
alienation, and intimidation from the individually-namedDefendants.
109. Employees of the SJCSO were required to abide by the policies
and procedures ofboth the SJCSO and the County. On repeated and
numerous occasions, as set forth more fullybelow, Defendants
violated these policies and procedures. COUNT I42 U.S.C.
1983VIOLATIONS OF FREEDOM OF POLITICAL ASSOCIATIONFIRST AMENDMENT
OF THE UNITED STATES CONSTITUTION110. Plaintiffs hereby adopt and
incorporate by reference paragraphs 1 through 109 asset forth
above. 111. The First Amendment of the United States Constitution
prohibits publicemployers from disparately treating employees
because of their political beliefs, associations, andaffiliations.
The only exception to this prohibition corresponds to where the
employment20
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includes a requirement of political allegiance.112. In this
matter, due to the nature of the duties and responsibilities of
Plaintiffs, norequirement of political allegiance exists. 113. The
Plaintiffs were subjected to official pressure to work for the
candidacy ofChristesen at the risk of losing their employment
and/or suffering adverse employment actions. This coercion is a
violation of each and every Plaintiffs fundamental constitutional
rights.114. These Plaintiff have suffered a number of adverse
employment actions where theirpolitical affiliations and beliefs
were substantial or motivating factors, including, but not
limitedto, the creation of hostile work environments, refusals to
allow and attend trainings, demotion,retaliation, removal of job
duties, unjustified and unfair disciplinary actions, disparate
treatmentwith respect to the terms and conditions of employment,
abuse and perversion of mandatorypolicies and procedures,
unjustifiable performance evaluations and/or the lack
thereof,banishment to what are now dead-end jobs without prospects
of promotion, and the conditioningof employment privileges and
rights on political support of Christesen.115. In violating the
Plaintiffs First Amendment rights, the Defendants acted under
thecolor of state law.116. Plaintiffs are entitled to all remedies
and relief available to them under theprovisions of 42 U.S.C. 1983,
including, but not limited to, punitive damages against
theindividually-named Defendants for their willful, wanton,
malicious, and grossly reckless conduct.
21
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COUNT II42 U.S.C. 1983VIOLATIONS OF FREEDOM OF
SPEECH/RETALIATIONFIRST AMENDMENT OF THE UNITED STATES
CONSTITUTION117. Plaintiffs hereby adopt and incorporate by
reference paragraphs 1 through 116 asset forth above.118. At no
time with respect to the constitutional violations of the
Plaintiffs freedomof speech rights did Plaintiffs speak according
to their official duties.119. Plaintiffs, in expressing their
political opinions and beliefs regarding their reasonsto support or
not support Christesen, spoke out on matters of public concern.
This speechconstitutes protected speech under the First
Amendment.120. The governmental entities named as Defendants and
the individually-namedDefendants interests in Plaintiffs comments
related to political speech and other speech do notoutweigh the
constitutional interests of Plaintiffs.121. As set forth in
paragraph 113 above, the Plaintiffs exercise of free speech was
asubstantial factors in a number of adverse employment actions that
these Plaintiffs suffered andcontinue to suffer.122. The adverse
actions Plaintiffs complain of in relation to their exercise of
theirFirst Amendment rights of free speech would not have occurred
but for the exercise of thatspeech. A causal connection exists
between the adverse actions complained of and the
protectedspeech.123. At all times relevant hereto, Defendants acted
under the color of state law.22
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124. The Plaintiffs exercise of their free speech rights and
privileges was not sufficientto disrupt the operations of the
SJCSO.125. There exist no legitimate, constitutional reasons for
the Defendants to haveretaliated against these Plaintiffs for the
exercise of their free speech rights. 126. The retaliatory conduct
Plaintiffs have suffered would have deterred a similarly-situated
employee from exercising his or her constitutional rights. 127.
Plaintiffs are entitled to all remedies available under 42 U.S.C.
1983, including,but not limited to, punitive damages against the
individually-named Defendants for their willful,wanton, malicious,
and grossly reckless conduct.COUNT III42 U.S.C. 1983VIOLATIONS OF
EQUAL PROTECTIONFOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION128. Plaintiffs hereby adopt and incorporate by
reference paragraphs 1 through 127 asset forth above.129.
Plaintiffs were subjected by Defendants to a hostile work
environment because ofeither their gender, political associations,
or both.130. San Juan County and the SJCSO, as well as the
individually-named Defendants,selectively and adversely subjected
Plaintiffs to disparate treatment and actions because of
theirgender, female, and/or their refusals to politically support
Christesen and his illegal and unethicaladministration.131. The
unlawful acts and failures to act Plaintiffs complain of constitute
intentional23
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harassment and punishment for protected speech and
classification.132. In subjecting Plaintiffs to adverse employment
actions such as a hostile workenvironment, violations of policies
and procedures that detrimentally affected their work
status,failures to promote, failures to provide training, unlawful
prohibitions on speech, coercionrelated to their political
affiliations, and other adverse actions, Defendants acted under the
colorof state law.133. When compared with other SJCSO employees,
Plaintiffs were treated differentlyand deprived of workplace
benefits and considerations freely given to other employees.134.
The selective treatment Mss. Utley and Haws complain of was
motivated by anintent to discriminate against them on the
impermissible bases of gender as well as politicalassociation and
free speech.135. The hostile work environment Mss. Haws and Utley
complain of was objectivelysevere and pervasive that a reasonable
person would have found hostile or abusive.136. Mss. Haws and Utley
did find the work environment at the SJCSO to be hostileand
abusive.137. The unlawful conduct Plaintiffs complain of
unreasonably interfered with theirwork performance and duties.138.
Plaintiffs decisions to not politically support and associate with
Christesenspolitical campaign contributed to the formation of the
hostile work environment.139. Defendants failed to appropriately
address Plaintiffs complaints of this hostilework environment.
Although Defendants knew about the hostile work environment
Plaintiffsreported, Defendants did nothing to remediate the
environment.24
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140. Defendants have no legitimate, non-discriminatory reasons
for engaging in theunlawful conduct Plaintiffs complain of. Any
reason put forward by Defendants is but a pretextfor
unconstitutional and unlawful conduct.141. Plaintiffs are entitled
to all remedies and relief available under 42 U.S.C.
1983,including, but not limited to, punitive damages for the
willful, malicious, wanton, and grosslyreckless acts and failures
to act of the individually-named Defendants.COUNT IV42 U.S.C.
1983VIOLATIONS OF DUE PROCESSFOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION142. Plaintiff hereby adopt and incorporate by
reference paragraphs 1 through 141 asset forth above.143.
Christesen and the SJCSO acted under the color of state law when
they decided todemote Mr. Wilcox.144. The demotion of Mr. Wilcox
from a lieutenant to a sergeant resulted in the loss ofpay and
benefits.145. At all times relevant hereto, Mr. Wilcox had and
exercised a protectedconstitutional interest in his employment with
the SJCSO.146. Constitutional due process requires that Mr. Wilcox
have received a meaningfulopportunity to be heard prior to
depriving him of any benefit associated with his protectedproperty
interest in employment.147. Mr. Wilcox had no opportunity to
participate in any process prior to the decision25
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being made to demote him. Indeed, the SJCSO and Christesen
expressly prohibited Mr. Wilcoxfrom participating in any due
process hearing prior to or after the demotion became effective
onApril 17, 2011.148. Christesen, in deciding to demote Mr. Wilcox,
and deprive him of hisconstitutional interests, was not impartial
and had stated previous to the demotion that suchwould occur
because Mr. Wilcox did not support him during Christesens election
as Sheriff.149. Christesen engaged in this unconstitutional conduct
for the sole purpose ofunconstitutionally retaliating against Mr.
Wilcox. This unconstitutional conduct extends toprohibiting Mr.
Wilcox from being promoted into other positions for which Mr.
Wilcox iseminently qualified.150. The constitutional rights the
SJCSO and Christesen deprived Mr. Wilcox of wereclearly established
at the time of the deprivation and a reasonable public officer
would haveknown of these rights.151. Mr. Wilcox is entitled to all
remedies and relief available to him under 42 U.S.C. 1983,
including, but not limited to, punitive damages against Christesen
for his willful, wanton,malicious, and grossly reckless violations
of Mr. Wilcoxs constitutional rights and privileges.COUNT V42
U.S.C. 1983CONSPIRACYFOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION152. Plaintiffs hereby adopt and incorporate by
reference paragraphs 1 through 151 asset forth above.26
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153. The individually-named Defendants became significantly
involved andintertwined in a concerted effort to unlawfully deprive
Plaintiffs of their constitutionally-protected rights.154. These
Defendants acted intentionally to cause the deprivation of
Plaintiffsconstitutional rights. By so acting, these Defendants
committed unlawful acts by unlawfulmeans, inflicting injuries upon
Plaintiffs.155. These Defendants acted under the color of state law
in conspiring againstPlaintiffs to deprive them of their
substantive constitutional rights as set forth herein. 156. These
Defendants conspired with and among themselves to cause the loss
ofPlaintiffs constitutional rights and further the unlawful
purposes of the conspiracy.157. These Defendants knew or should
have known that their conspiratorial actionsviolated the Plaintiffs
clearly-established constitutional rights and those rights and
privilegessecure by New Mexico statute, common law, and San Juan
Countys and the SJCSOs policiesand procedures.158. As a result of
the conspiracy between the individually-named Defendants,Plaintiffs
have suffered damages and are entitled to all remedies and relief
available to themunder 42 U.S.C. 1983, including punitive damages
for the willful, wanton, intentional, andgrossly reckless acts of
the individually-named Defendants. COUNT VINMSA 1978 10-16-1, et.
seq.VIOLATIONS OF THE NEW MEXICO GOVERNMENTAL CONDUCT ACT159.
Plaintiff hereby adopt and incorporate by reference paragraphs 1
through 158 as27
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set forth above.160. Public officers are to treat their
government positions as a public trust. Suchofficers are not to use
the power and resources of their offices to advance personal and
private interests over public interests. 161. Every public officer,
including the individually-named Defendants, is prohibitedfrom
directly or indirectly coercing or attempting to coerce another
public officer or employee forcontributing anything of value to a
person or party for a political purpose.162. Moreover, the
Governmental Conduct Act provides that threatening to deny
apromotion to an employee or advising an employee to take part in
political activities in thecontext of job benefits is a violation
of New Mexico statute.163. The facts here show that Christesen,
Anderson, and Current engaged in grossviolations of the
Governmental Conduct Act by basing employment decisions,
promotionalopportunities, training opportunities, and other
work-related benefits on politicalpatronageincluding the placement
of campaign signs, financial contributions to Christesenscampaign,
the recruitment of others for Christesens political benefit, the
holding of campaignevents, and other matters that clearly violate
the Governmental Conduct Act.164. Additionally, Plaintiffs have
been threatened by the individually-namedDefendants with respect to
job security, have had duties and responsibilities removed because
ofpolitical patronage issues, and have had the terms and conditions
of their employment alteredbecause of their political beliefs and
support or lack thereof for particular candidates.165. As a result
of these violations of the Plaintiffs have suffered damages.
Plaintiffsare entitled to all remedies and relief available to them
under the Governmental Conduct Act.28
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COUNT VIINEW MEXICO COMMON LAWVIOLATIONS OF AN IMPLIED CONTRACT
OF EMPLOYMENTDEFENDANT BOARD OF COMMISSIONERS OF SAN JUAN
COUNTY166. Plaintiffs hereby adopt and incorporate by reference
paragraphs 1 through 165 asset forth above.167. Defendant San Juan
County maintained and published personnel policies andprocedures
through an Employee Handbook made available to all County
employees.168. The County required and expected all employees,
including Plaintiffs and theindividually-named Defendants named
herein, to comply with and abide by these policies
andprocedures.169. Based upon the Countys representations regarding
these policies and procedures,Plaintiffs reasonably expected that
County authorities, including the Sheriff, Undersheriff, andthe
Countys HR Department would follow these policies and procedures in
relation to the termsand conditions of Plaintiffs employment.170.
The Countys published policies and procedures constitute an
agreement, animplied contract of employment between the parties
which by the course of conduct and usagethe parties demonstrated an
intent to be bound.171. This implied contract, per the Countys
policies and procedures, provided, amongother things: (1) that
cause would be needed to discipline Plaintiffs in any fashion; (2)
that SanJuan County employees were prohibited from campaigning for
political office during regularwork hours; (3) that employees could
not be coerced into campaigning for an elected official to29
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ensure continued employment; (4) that all employees were
required to abide by theGovernmental Conduct Act; (5) that
performance evaluations will occur on and about theemployees
anniversary date; (6) that a failure to conduct timely performance
evaluations wouldresult in a presumption that the employees
performance was satisfactory and that the employeemerited a step
increase, if applicable; (7) that employees would enjoy a
harassment-freeworkplace; (8) that an employee who believes he or
she is being harassed or discriminatedagainst has a right to file a
formal charge with the Countys Chief HR Officer; (9) that any
chargeof harassment and/or discrimination will be promptly
investigated and a written report prepared;(10) that the County
prohibits retaliation against employees who submit harassment
complaints;(11) that the County will encourage training
opportunities for employees; (12) that the Countywill ensure that
promotion, demotions, and other employment-related matters will be
fair andnon-discriminatory; (13) that the County adheres to a
progressive disciplinary action policy; (14)that County employees
have adequate information regarding job performance prior
todisciplinary action being meted out; (15) that an employee can
only be demoted for a seriousoffense, a repeated minor offense, or
for unsatisfactory performance or behavior that theemployee is
unable or unwilling to correct; and (16) that all employees have
rights to grievedeprivations of rights. 172. The County breached
each and every one of the policy requirements set forth inparagraph
170, among others, in dealing with and deciding the terms and
conditions of Plaintiffsemployment.173. As a result of these
breaches, Plaintiffs have suffered damages.174. Plaintiffs are
entitled to all remedies and relief available to them under
New30
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Mexico law for these breaches of the implied contract of
employment.III. DAMAGES AND PRAYER FOR RELIEF175. Plaintiffs hereby
adopt and incorporate by reference paragraphs 1 through 174 asset
forth above.176. Plaintiffs seek damages for past lost wages and
benefits, where appropriate.177. Plaintiffs seek damages for future
lost wages and benefits, where appropriate.178. Plaintiffs seek
damages for mental, emotional, and psychological distress.179.
Plaintiffs seek pre- and post-judgment interest.180. Plaintiff
seeks attorneys fees and costs, as allowable by law, statute, or
rule.181. Plaintiffs seek punitive damages against the
individually-named Defendants fortheir intentional, willful,
wanton, and grossly reckless conduct.WHEREFORE Plaintiffs pray this
Court enter judgment in their favor, award thedamages sought
herein, and such further relief the Court deems just and
appropriate under thecircumstances. Respectfully submitted,
/s/Michael E. MozesLAW OFFICES OF MICHAEL E. MOZES, P.C.Attorney
for Plaintiffs5732 Osuna Road NEAlbuquerque, NM 87109-2527 (505)
880-1200(505) 881-2444
31
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