US v Cuba Consent Decree

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

______________________________

UNITED STATES OF AMERICA,

Plaintiff,

ESTHER V. HERRERA, MARCELLA MARTINEZ and LORRAINE SANCHEZ,

Plaintiffs In Intervention,

v.

Civil Action No. 01-54 PJK/RLP

THE VILLAGE OF CUBA, NEW MEXICO,

Defendant.

________________________________

SETTLEMENT AGREEMENT

This action was brought on behalf of the United States of America ("United States") against the Village of Cuba, New Mexico (the "Village" or "Defendant") to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), following receipt by the Department of Justice from the Equal Employment Opportunity Commission ("EEOC") of charges of discrimination filed by Esther V. Herrera, Marcella Martinez and Lorraine Sanchez, EEOC Charge Numbers, 390980831, 390980832 and 390980849.

In its Complaint, the United States alleges that the Village has discriminated against Esther V. Herrera, Marcella Martinez and Lorraine Sanchez, females formerly employed by Defendant, and others similarly situated, because of their sex in violation of Section 703(a) of Title VII by failing or refusing to increase their hourly compensation at the same rate as the increase in hourly compensation given to male hourly employees in or about June 1998, and by failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment. The Complaint also alleges that Defendant has discriminated against Lorraine Sanchez in violation of Section 704(a) of Title VII, among other ways, by failing or refusing to promote or consider for promotion Ms. Sanchez to a deputy clerk or clerk assistant position in or about April 2000, because she filed a charge with the EEOC and/or because she complained to Village officials regarding the aforementioned differential in the rate of increase in pay, and by failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment of Ms. Sanchez.

Subsequent to the filing of the Complaint by the United States, Plaintiff-Intervenors Esther Herrera, Marcella Martinez and Lorraine Sanchez moved to intervene. The Motion was granted and the Intervenor-Plaintiffs filed a Complaint in Intervention.

The Village denies that it has discriminated against the charging parties or other similarly situated

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US v Cuba Consent Decree

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employees in violation of Title VII. Nevertheless, the parties, desiring that this action be settled by an appropriate Settlement Agreement ("Agreement") and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action, and hereby waive, for the purposes of this Agreement only, hearings and findings of fact and conclusions of law on all issues, and further agree to the entry of this Agreement as final and binding among themselves as to the issues raised in the Complaints filed in this case.
This Agreement, being entered with the consent of the parties, shall in no way constitute an adjudication or finding of any wrongdoing or violation of any applicable federal or state law or regulation, nor be construed as an admission by Defendant.
In resolution of this action, the parties hereby AGREE and the Court expressly APPROVES, ENTERS and ORDERS the following:
SPECIFIC RELIEF
1. Within ten (10) days of the date of entry of this Agreement, the Village will pay Esther V. Herrera a monetary award of $1,900.
2. Within ten (10) days of the date of entry of this Agreement, the Village will pay Marcella Martinez a monetary award of $900.
3. Within ten (10) days of the date of entry of this Agreement, the Village will pay Lorraine Sanchez a monetary award of $3,900.
4. The Village will pay Alan Malott, Esq., counsel for Plaintiff-Intervenors Esther V. Herrera and Marcella Martinez, attorney's fees of $6,000. The Village will pay this amount in four equal installments, the first one within ten (10) days of the date of entry of this Agreement, and the three remaining payments on a monthly basis thereafter.
5. The Village will pay John L. Hollis, Esq., counsel for Plaintiff-Intervenor Lorraine Sanchez, attorney's fees of $4,000. The Village will pay this amount in four equal installments, the first one within ten (10) days of the date of entry of this Agreement, and the three remaining payments on a monthly basis thereafter.
6. Within ten (10) days of the date of entry of this Agreement, the Village will pay $2,438.12 in costs, split evenly among the three Plaintiff-Intervenors, to be paid to Alan Malott, Esq., in trust, for disbursement of the monies.
7. The Village shall ensure that if an inquiry is made by prospective employers or third parties concerning Ms. Herrera, Ms. Martinez or Ms. Sanchez's employment with Defendant, or upon request of Ms. Herrera, Ms. Martinez or Ms. Sanchez, the Village will provide an employment letter that provides the Plaintiff-Intervenor's length of employment and states that the Plaintiff-Intervenor would be eligible for rehire with the Village.
GENERAL RELIEF
8. The Village will propose a budget change for approval by the New Mexico Department of Finance and Administration to increase the wage rate for new hires to $7.50 per hour for the following positions: deputy or assistant Village Clerk; water clerk; motor vehicle clerk; general clerk; librarian; and part-time

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US v Cuba Consent Decree

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custodian/janitor. The Village also will propose a budget change for approval by the New Mexico Department of Finance and Administration to adjust the new hire rate upward from $7.50 per hour for all persons currently holding the above positions to reflect general cost of living increases, if any, given by the Village between June 1, 1998, and the date of execution of this Agreement. It is noted that the Village currently considers general cost of living increases for employees on the first anniversary date of hire and each successive hire date anniversary. The Village will work in good faith with the New Mexico Department of Finance and Administration in order to receive its approval of the new hourly wage rates.
9. The Village agrees not to engage in any act or practice that has the purpose or effect of unlawfully discriminating against any employee in that employee's compensation, terms, conditions or privileges of employment because of such employee's sex.
10. The Village agrees not to retaliate against any person because that person has opposed allegedly discriminatory policies or practices; filed a complaint, either formal or informal, with the Defendant; filed a charge of discrimination with the EEOC or the New Mexico Human Rights Division; or participated in or cooperated with the initiation, investigation, litigation or administration of this case or this Agreement.
11. No later than sixty (60) days after the entry of this Agreement all members of the Village Council shall be provided with training on the law of equal employment opportunity, including discrimination based on gender and retaliation, lasting at least four (4) hours. The United States shall review and approve any proposed training program prior to its administration. The Village shall provide the United States with written confirmation that all members of the Council attended this training no later than ten (10) days after it is provided.
IMPLEMENTATION
12. The parties shall attempt to resolve informally any disputes that may occur under this Agreement. If the parties are unable to reach agreement after a matter has been brought to the attention of one of the parties by the other party, the issue may be submitted by either party to the Court for resolution.
13. The Village shall retain during the life of this Agreement records necessary to document the implementation of the Agreement. The Village shall make those records and all other documents relevant to its compliance with and implementation of this Agreement available for inspection and copying within thirty (30) days of any written request sent by the Department of Justice to the Village's attorney.
14. The Court shall retain jurisdiction of this action for six (6) months from the date of entry of this Agreement for the purpose of enforcing the Agreement as may be necessary. After six months, this matter shall be dismissed unless the United States moves, for good cause shown upon notice to the Defendant, for its continuation to carry out the purpose or provisions of this Agreement. In the event that the United States moves to extend this Agreement, this Agreement shall remain in effect until the motion is resolved.
For the Defendant:
_____________________________ WAYNE E. BINGHAM, ESQ. Crider, Bingham & Hurst, P.C.

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US v Cuba Consent Decree
3908 Carlisle Boulevard, NE Albuquerque, New Mexico 87107 505-881-4545
Dated: _________________
For the Plaintiff United States of America:
____________________________ WILLIAM B. FENTON DAWN HENRY MARIA H. RIOS U. S. Department of Justice Civil Rights Division Employment Litigation Section P. O. Box 65968 Washington, D.C. 20035-5968 202-514-7013
Dated: ___________________
____________________________ David C. Iglesias United States Attorney 201 3rd Street, NW Suite 900 Albuquerque, New Mexico 87102 505-346-7274
Dated: ___________________
For the Plaintiff-Intervenors
Esther V. Herrera and Marcella Martinez:
_________________________ ALAN MALOTT, ESQ. Malott Law Offices Post Office Box 8305 Albuquerque, New Mexico 87198
Dated: ______________________
For the Plaintiff-Intervenor Lorraine Sanchez:
________________________ JOHN L. HOLLIS, ESQ.
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US v Cuba Consent Decree
6020 Constitution, NE, #4 Albuquerque, New Mexico 87110
Dated: ______________________
DONE and ORDERED this _____ day of ___________, 2001.
__________________________ Honorable Paul Kelly, Jr. United States Circuit Judge Sitting by Designation

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 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, Plaintiff,
v.
THE VILLAGE OF CUBA, NEW MEXICO Defendant.
Civil Action No.
COMPLAINT
Plaintiff, the United States of America, alleges:
1. This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII").
2. This Court has jurisdiction of the action under 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1345.
3. Defendant Village of Cuba, New Mexico ("Village of Cuba") is a political subdivision of the State of New Mexico created pursuant to the laws of the State of New Mexico.
4. Defendant Village of Cuba is a person within the meaning of 42 U.S.C. § 2000e(a), and an employer within the meaning of 42 U.S.C. § 2000e(b).
5. Defendant Village of Cuba has discriminated against Esther V. Herrera, Marcella Martinez, Lorraine Sanchez and similarly situated females because of their sex in violation of
Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), among other ways, by:
a. Failing or refusing to increase their hourly compensation at the same rate as the increase in hourly compensation given to male hourly employees in or about June 1998; and
b. Failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment.
6. Defendant Village of Cuba also has discriminated against Lorraine Sanchez in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), among other ways, by:
a. Failing or refusing to promote or consider for promotion Ms. Sanchez to a deputy clerk or clerk assistant position in or about April 2000 because she filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging she and other females had been discriminated against on the basis of sex by the Village of Cuba with respect to the rate of increase in their pay and/or because she complained to Village officials that the rate of increase in pay given to her and other female employees was discriminatory on the basis of sex; and
b. Failing or refusing to take appropriate action to remedy the effects of the discriminatory treatment of

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Page 2 of 3
Ms. Sanchez.
7. The EEOC received timely charges filed by Esther V. Herrera (Charge No. 390980831), Marcella Martinez (Charge No. 390980832) and Lorraine Sanchez, (Charge No. 390980849). Pursuant to § 706 of Title VII, 42 U.S.C. § 2000e-5, the EEOC investigated the charges, found reasonable cause to believe the charging parties' allegations of discrimination in employment in violation of Title VII were true, attempted unsuccessfully to achieve through conciliation a voluntary resolution of these matters, and subsequently referred the charges to the United States Department of Justice.
8. All conditions precedent to the filing of suit have been performed or have occurred.
WHEREFORE, Plaintiff United States prays that this Court grant the following relief:
a. Enjoin Defendant Village of Cuba from engaging in discriminatory employment practices and policies against women based on their sex and specifically from failing or refusing to increase the compensation of female hourly employees at the same rate as the increase in hourly compensation given to male hourly employees.
b. Enjoin Defendant Village of Cuba from failing or refusing to provide sufficient equitable relief to make whole Esther V. Herrera, Marcella Martinez, Lorraine Sanchez, and similarly situated females for the loss they have suffered as the result of the discrimination against them because of their sex as alleged in this complaint.
c. Enjoin Defendant Village of Cuba from failing or refusing to provide sufficient equitable relief to make whole Lorraine Sanchez for the loss she has suffered as the result of the retaliation against her as alleged in this complaint.
The Plaintiff prays for such additional relief as justice may require, together with its costs and disbursements in this action.
JANET RENO Attorney General
By: ____________________________ BILL LANN LEE Assistant Attorney General Civil Rights Division
____________________________ NORMAN C. BAY United States Attorney RAYMOND HAMILTON Chief, Civil Division United States Attorney's Office 201 3rd Street, NW Suite 900 Albuquerque, New Mexico 87102 (505)346-7274

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_____________________________ WILLIAM B. FENTON DAWN HENRY Attorneys U.S. Department of Justice Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968 (202)514-7013

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA Plaintiff,
v. THE VILLAGE OF CUBA,
NEW MEXICO Defendant. ANSWER TO COMPLAINT
Defendant Village of Cuba answers the complaint as follows. 1. Answering paragraph 1 of the complaint Defendant admits that the action is brought pursuant to Title VII but denies any basis for the action.
2. Defendant denies paragraph 2 of the complaint in that at all relevant times Defendant had fewer than 15 employees.
3. Defendant admits paragraph 3 of the complaint.
4. Defendant admits paragraph 4 of the complaint.
5. Defendant denies paragraph 5 of the complaint and subparagraphs 5 (a) and (b) of the complaint.

6. Defendant denies paragraph 6 of the complaint and subparagraphs 6 (a) and (b) of the complaint.
7. Defendant admits paragraph 7 of the complaint but states that the EEOC's determination was erroneous, that its investigation was flawed and that its conciliation efforts did not comport with the definition of that term.
Affirmative and Alternate Defenses 1. The complaint fails to state a cause on which relief can be granted. 2. The Court lacks jurisdiction over the case as Defendant at all relevant times had fewer than 15 employees. 3. Defendant at all times acted in good faith. 4. Defendant's acts, if any, were privileged. 5. Plaintiff has failed to mitigate damages, if any.
2

WHEREFORE, having answered and defended, Defendant prays that the
complaint be dismissed and that the Defendant be awarded its costs and
attorney's fees as the complaint is frivolous.
Crider, Bingham & Hurst, P.c.
By ~~in~~ Attorneys for Defendant Village of Cuba 3908 Carlisle, NE Albuquerque, NM 87107 (505) 881-4545
I hereby certify that a true and correct copy
of the foregoing was mailed this 16 of'"
day of March, 2001 to:
Norman C. Bay United States Attorney Raymond Hamilton Chief, Civil Division United States Attorney's Office 201 3rd Street, NW Suite 900 Albuquerque, New Mexico 87102 (505) 346-7274
William B. Fenton Dawn Henry Attorneys U.s. Department of Justice Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968 (202) 514-7013
w~r;.~~ 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA
Plaintiff,

, '''')
02 NOV /8 PH /2: 02 K

v.

THE VILLAGE OF CUBA, NEW MEXICO

Defendant.

JOINT CERTIFICATION OF COMPLIANCE The parties hereby certify that the Village of Cuba has fully complied with the Settlement Agreement in the above matter as of November 7,2002.

BINGHAM, HURST, APODACA
:1!:;;~'t 1iA
Attorneys for Village 3908 Carlisle NE Albuquerque, N.M. 87108 (505) 881-4545

FOR THE PLAINITFF UNITED STATES OF AMERICA
William B. Fenton Dawn Henry Maria Rios Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, D.C. (202) 514-7013

 
 IN THE UNITED STATES DISTRICT COURT FILED
vN1T1 u ST;";T[~ JIS rr:iC:-; lJUii f
FOR THE DISTRICT OF NEW MEXICd,,;rillci UF Nf'i/ :'iXICO
_ _ _ _ _ _ _ _ _ _ _ _=02 OCT 15 PH 3:30 ;I:
,
UNITED STATES OF AMERICA,

Plainti ffs, and

No. 01cv54 PK/RLP

ESTHER HERRERA, MARCELLA MARTINEZ, and LORRAINE SANCHEZ,

Plaintiffs In Intervention,

vs.
THE VILLAGE OF CUBA, NEW MEXICO,
Defendant.

ORDER
THIS MATTER comes on for consideration of the Motion of the United States For an Order Requiring Defendant to Show Cause Why it Should Not be Held in Contempt for Failing to Comply With All of the Provisions of the Settlement Agreement, filed August 27, 2002 (Doc. 31). That motion was granted and the Defendant, the Village of Cuba, New Mexico ("Village"), was ordered to show cause why it should not be held in contempt for failing to comply with all of

3\

the provisions of the Settlement Agreement entered November 27,2001 (Doc. 28). Doc. 35. The court held an evidentiary hearing on September 30, 2002. In the absence of cause, the United States has requested that the court order the Village to comply with Paragraphs 8 and 13 of the Settlement Agreement within seven days, and to extend the Settlement Agreement for an additional six months so that the Village's compliance may be monitored. Doc. 31 at 2-3.
At the hearing, the Village Mayor (Ethel Maharg) testified that the Village of Cuba had been attempting to ascertain its budget situation through contact with the New Mexico Department of Finance and Administration ("DFA"). The court finds that the Village, without cause, failed to initiate any action with the DFA until approximately a month before the hearing that would allow the Village to implement Paragraph 8 of the Settlement Agreement. The court further finds that there is no reason why Paragraph 8 of the Settlement Agreement cannot be implemented in full immediately.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED and DECREED: (1) That the Defendant Village of Cuba shall implement and fund Paragraph 8 of the Settlement Agreement immediately. (2) That the Defendant Village of Cuba shall comply with Paragraph 13 of the Settlement Agreement by making compliance documentation available to the United States immediately.
-2 -

(3) That the Defendant Village of Cuba shall be subject to the oversight provisions of the Settlement Agreement (Doc. 28 at 5-6, '1/'1/12-14 "Implementation") at least until (1) Paragraph 8 of the Settlement Agreement is implemented, thereby correcting any discrepancy in salary including approximately $1,700 in back pay per affected employee, and (2) the United States and the Village of Cuba agree to the termination of the oversight proVIsIOns.
(4) That upon joint certification to the court within 21days from the entry of this Order, the Order to Show Cause shall be discharged. The joint certification by the United States and the Village of Cuba shall recite that the Village of Cuba has fully complied with the Settlement Agreement as of the date of the joint certification.
DATED this 15th day of October 2002, at Sa Fe, New Mexico.
-3-

 
 IN THE UNITED STATES DISTRICfJbfiM
J FOR THE DISTRICT OF NEW·fiuO:.~&!ie,,Xic,,!Oi',\\C.,...~".,..1S,1O·U,,0I1T v

UNITED STATES OF AMERICA,

01 AUG -6 PH 2: 33

Plaintiff,

and,

ESTHER HERRERA, MARCELLA MARTINEZ, and LORRAINE SANCHEZ,

Plaintiffs In Intervention

-vs-

THE VILLAGE OF CUBA, NEW MEXICO,

Defendant.

COMPLAINT IN INTERVENTION

ESTHER HERRERA, MARCELLA MARTINEZ, and LORRAINE SANCHEZ, Plaintiffs in

Intervention [hereinafter "Intervenors"] herein, state and allege:

Common Factual & Jurisdictional Allegations

I. The Court has jurisdiction over the subject matter of this action pursuant to 42U.S.C.

2000e, 28 U.S.C. 1331, 1337 and 1345, and 29 U.S.c. 215 and 216.

2. Intervenors are residents ofSandoval County, New Mexico, and seek to intervene in this

matter to pursue and protect their individual remedies as provided by Title VII of the Civil Rights Act

of1964, as amended, 42 U.S.C. 2000e, et. seq., the Equal Pay Act, 29 U.S.c. 206, et. seq., and the New

Mexico Human Rights Act, 28-1-1, et. seq. NMSA.

3. Intervenors are "employees" within the meaning ofTitle VII, 42 U.S.C. 2000e, the Equal

Pay Act, 29 U.S.c. 203, and the Human Rights Act, 28-1-1, NMSA.

4. Defendant Village of Cuba, New Mexico, is a political subdivision of the State of New Mexico created and existing under the laws ofthe State ofNew Mexico and is an employer within the meaning of Title VII, the Equal Pay Act, and the Human Rights Act.
5. Intervenors have complied with all jurisdictional prerequisites to the filing of this litigation.
Count I Title VII Violations 6. On or about June I, 1998, Defendant Village of Cuba improperly discriminated against Intervenors, and those similarly situated, on the basis ofgender, and in violation ofSection 703(a) Title VII, 42 U.S.C. 2000e, in one or more of the following ways: a. by adopting and instituting a payroll system which provided greater percentage raises to male employees than to female employees; and b. by refusing to increase Intervenors' compensation at the same rates as male employees upon requests from Intervenors. 7. Intervenors timely filed charges with the Equal Employment Opportunity Commission (EEOC) in July and August, 1998, alleging discrimination by the pay system. See Charge #390980831 (Herrera), Charge #390980832 (Martinez), and Charge #390980849 (Sanchez). 8. Pursuant to Section 706 of Title VII, the EEOC investigated Intervenors' charges, found reasonable cause to support said charges, and unsuccessfully sought to achieve a voluntary resolution. EEOC referred the matter to The Department ofJustice which initiated this action on January 12,200 I. 9. Subsequent to the filing ofthe EEOC charges, Defendant Village of Cuba also violated Section 703 and 704 of Title VII, by discriminating against Intervenors in one or more ofthe following ways:

a. failing or refusing to increase their hourly compensation at the same rate as the increase in hourly compensation paid to male employees;
b. retaliating against Intervenors for their filing ofthe EEOC charges including use of improper disciplinary actions and write ups, refusing to consider Intervenors for promotion, and entering negative comments in Intervenors' personnel files and otherwise creating a negative and hostile environment which led to Intervenors' termination of employment;
c. refusing to take appropriate action to remedy the effects of the discriminatory conduct towards Intervenors.
Count II Equal Pay Act Violations 10. Plaintiffs in Intervention repeat and reallege each and every allegation ofCount I hereof. II. Defendant Village of Cuba is an employer within the meaning of the Equal Pay Act. 12. Plaintiffs in Intervention are females who were employed by Defendant Village of Cuba, which also employed one or more males in jobs requiring substantially equal skill, efforts, and responsibility, to the jobs performed by Intervenors, and which were performed under substantially similar conditions. 13. Plaintiffs in Intervention were each paid a lower hourly wage by Defendant than it paid its male employees for substantially equal same work, all in violation ofthe Equal Pay Act, 29 U.S.c. 206(d). 14. Intervenors complained to Village of Cuba officials about the pay inequalities, and Defendant Village ofCuba willfully and intentionally retaliated against Intervenors as specified above for making said complaints, ultimately resulting in Intervenors' leaving their employment.

2. For an award of liquidated damages equal to the pay and benefits differential amount

as provided for by 29 U.S.C. 216(b); and

3. For an award of reasonable attorneys fees and Intervenors' costs incurred herein; and

4. For an award of both front pay and back pay as may be appropriate including the value

of employee benefits, or in the alternative, reinstatement ofemployment to their former positions with

full seniority, or to positions to which Intervenors or anyone of them would have been promoted.

5. For general compensatory and/or nominal damages as may be appropriate; and,

6. For an Order of this Court enjoining Defendant Village of Cuba from engaging in the

discriminatory practices complained of herein; and

7. For an Order of this Court enjoining Defendants and its employees, agents, or servants

from disseminating any negative comments, referrals, references or other derogatory communications

concerning Intervenors' termination ofemployment and, specifically, requiring any inquiry to indicate

termination was voluntary; and

8.

ay dee proper.

lIy Submi t LAW 0

By: Alan M. Malott ATTORNEY FOR PLAINTIFFS IN INTERVENTION HERRERA and MARTINEZ Post Office Box 8305 Albuquerque NM 87198-8305 Telephone: (505) 268-6500

JOHN 1. HOLLIS, P.A.
By" ohn 1. Hollis TORNEY FOR PLAINTIFF IN
INTERVENTION LORRAINE SANCHEZ 6020 Constitution NE #4 Albuquerque, NM 87110 Telephone: (505) 266-7841

 
 IN THE UNITED STATES DISTIRCT COURT

FOR THE DISTRICT OF NEW MEXICO

~"'.

UNITED STATES OF AMERICA

Plaintiff,

01 WG \7

PH q: 02

and

Civil Action:

ESTHER HERRERA, MARCELLA MARTINEZ, and LORRAINE SANCHEZ,

Plaintiffs In Intervention

vs

THE VILLAGE OF CUBA, NEW MEXICO,

Defendant.

ANSWER TO COMPLAINT IN INTERVENTION

Defendant Village of Cuba, New Mexico answers the Complaint In Intervention

as follows.

I. Cuba denies paragraph I of the Complaint.

2. Cuba admits that intervenors are residents of Sandoval County, New Mexico but

denies the remaining allegations in paragraph 2 of the Complaint.

3. Answering paragraph 3 of the Complaint Cuba admits that intervenors are

employees within the meaning of Title VII and the New Mexico Human Rights Act but

denies that the Court has jurisdiction over this case as Cuba has fewer than 15 employees

for purposes of Title VII and any claims by intervenors under the New Mexico Human

Rights are barred in that intervenors failed to exhaust their administrative remedies under

the New Mexico Human Rights Act and the Court is without jurisdiction over those

claims, if any.

4. Cuba admits it is a political subdivision of the state of New Mexico and exists under the laws of the State of New Mexico but denies the remaining allegations in paragraph 4 of the Complaint. 5. Cuba denies paragraph 5 of the Complaint.
Count I - Title VII 6. Cuba denies paragraph 6 of the Complaint. 7. Cuba admits paragraph 7 of the Complaint. 8. Cuba admits paragraph 8 of the Complaint but states that the charges were without merit. 9. Cuba denies paragraph 9 of the Complaint.
Count II - Equal Pay Act 10. Cuba repeats each and every answer above. II. Cuba admits paragraph II of the Complaint. 12. Cuba denies paragraph 12 of the Complaint. 13. Cuba denies paragraph 13 of the Complaint. 14. Cuba denies paragraph 14 of the Complaint. 15. Cuba denies paragraph IS of the Complaint. 16. Cuba denies paragraph 16 of the Complaint.
Count III - Human Rights Act 17. Cuba repeats each and every answer above.
2

18. Cuba admits paragraph 18 of the Complaint but states intervenors' claims under the New Mexico Human Rights Act are barred by their failure to exhaust administrative remedies and the court is without jurisdiction over those claims. 19. Cuba denies paragraph 19 of the Complaint. 20. Cuba denies paragraph 20 of the Complaint.
Affirmative and Alternate Defenses 1. The complaint fails to state a claim on which relief can be granted. 2. The Court has jurisdiction over intervenors' Title VII claims as Defendant at all relevant times had fewer than 15 employees. 3. Intervenors' Equal Pay Act Claims, if any, are barred in whole or inpart the applicable statute oflimitations. 4. Intervenors' New Mexico Human Rights Act Claims are barred in that Intervenors failed to exhaust their administrative remedies and the Court is without jurisdiction over those claims. 5. Defendant at all times acted in good faith. 6. Defendant's acts, if any, were privileged. 7. Defendant's acts, if any, were in accord with law. 8. Plaintiff has failed to mitigate damages, if any.
3

WHEREFORE, having answered and defended, Defendant prays that the
complaint be dismissed and that the Defendant be awarded its costs and attorney's fees as
the complaint is frivolous.
Crider, Bingham & Hurst, P.C.
Wr £¥-- By WAYNE . BINGHAM Attorneys for Village of Cuba 3908 Carlisle, NE Albuquerque, NM 87107 (505) 881-4545
I hereby certify that a true and correct copy of the
foregoing was mailed this /f~fvt day of August, 200 I, to:
Dawn Henry Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968 (202) 514-7013
Alan M. Malott Malott Law Office P.O. Box 8305 Albuquerque, NM 87198-8305 (505) 268-6500
John L. Hollis John L. Hollis, P.A. 6020 Constitution NE #4 Albuquerque, NM 87110 (505) 66-7841
[.
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

~ ~ ::'. I" - l . '< r '

UNITED STATES OF AMERICA

02 NOV 18 PM 12: 03 l '

Plaintiff,

:,'._'~'-,/'~</~,-tl,

/

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-

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,

v.

CIV 010054 PJKIRL.1:r1 ·[""V "'~''I,.~", Fc'

THE VILLAGE OF CUBA, NEW MEXICO

Defendant.

DISMISSAL OF CASE WITH PREJUDICE The Village of Cuba having complied with the Settlement Agreement in the above matter and the parties having filed a Joint Certification of Compliance, it is HEREBY ORDERED that the matter is DISMISSED WITH PREJUDICE.

wl!tf~af~ Approved:
Attorney for Cuba
i ~~.
Dawn Henry Attorney for United St tes

United States Circuit Judge Sitting By Designation

 
 U.S. District Court District of New Mexico - Version 3.0 (Santa Fe) CIVIL DOCKET FOR CASE #: 6:01-cv-00054-PJK-RLP

USA v. Village of Cuba, et al Assigned to: Circuit Judge Paul Kelly, Jr Referred to: Magistrate Judge Richard L. Puglisi Demand: $0 Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 01/12/2001 Date Terminated: 11/18/2002 Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff United States of America

represented by Bill Lann Lee US Department of Justice Civil Rights Division PO Box 65998 Washington, DC 20035-5998 (202) 514-4713 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn Henry US Department of Justice PO Box 65968 Washington, DC 20035-5968 (202) 514-7013 Fax: 514-1005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria H. Rios U.S. Department of Justice Civil Rights Div P.O. Box 65968 Washington, DC 20035-5968 (202) 514-7013 Fax: 514-1005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman C Bay US Attorney's Office District of New Mexico PO Box 607 Albuquerque, NM 87103

V. Defendant The Village of Cuba New Mexico
Intervenor Esther Herrera
Intervenor

(505) 346-7274 Fax: 346-6852 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William B Fenton US Department of Justice Civil Rights/Employment Litigation Secti PO Box 65968 Washington, DC 20035-5968 (202) 514-6269 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Wayne E Bingham Bingham, Hurst, Apodaca & Wile, PC 3908 Carlisle Blvd, NE Albuquerque, NM 87107 505-881-4545 Fax: 505-889-0988 Email: wbingham@binghamhurst.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan M. Malott Malott Law Offices PO Box 8305 Albuquerque, NM 87198-8305 (505) 268-6500 Fax: 268-8708 Email: alan@malottlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcella Martinez

represented by Alan M. Malott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/12/2001 03/16/2001 03/16/2001 03/22/2001
04/02/2001 04/20/2001 04/30/2001 05/02/2001 05/04/2001
05/11/2001 05/16/2001

#

Docket Text

1 CIVIL RIGHTS COMPLAINT (1 Summons(es) issued) (referred to Magistrate Judge Richard L. Puglisi) (mjr) (Entered: 01/17/2001)

2 ENTRY OF APPEARANCE for defendant by Wayne E. Bingham (sl) (Entered: 03/16/2001)

3 ANSWER by defendant Village of Cuba [1-1] (sl) (Entered: 03/16/2001)

4 INITIAL SCHEDULING ORDER by Magistrate Judge Richard L. Puglisi ; Rule 16 scheduling conference set for 5/2/01 at 9:30 am; provisional discovery plan and IPTR due on 4/23/01 (cc: all counsel*) (sl) (Entered: 03/22/2001)

5 ENTRY OF APPEARANCE for plaintiff by Maria H. Rios and Dawn Henry (sl) (Entered: 04/02/2001)

6 PROVISIONAL DISCOVERY PLAN by parties (vv) (Entered: 04/25/2001)

7 CERTIFICATE of service by pltf of initial disclosures to counsel on 4/16/01 (vv) (Entered: 05/01/2001)

8 CLERK'S MINUTES: before Magistrate Judge Richard L. Puglisi ; Rule 16 scheduling conference held (sl) (Entered: 05/02/2001)

9 INITIAL PRE-TRIAL REPORT by Circuit Judge Paul Kelly Jr. and Magistrate Judge Richard L. Puglisi; Discovery set for 8/30/2001; mtn filing ddl set for 11/15/2001; proposed pretrial order due 11/30/2001; non-jury trial set for 8:30 a.m. on 2/11/2002 in Albuquerque NM; Estimated # Trial Days: 3-5; Chances of Settlement: unlikely (cc: all counsel) (mjr) (Entered: 05/04/2001)

10 ORDER by Magistrate Judge Richard L. Puglisi setting settlement conference for 10/25/01 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 05/11/2001)

11 MOTION by intervenors Esther Herrera and Marcella Martinez

05/16/2001 05/22/2001 06/29/2001 07/09/2001 07/13/2001 07/30/2001 08/02/2001 08/03/2001 08/03/2001 08/03/2001
08/06/2001 08/06/2001 08/17/2001

to intervene (sl) (Entered: 05/16/2001)
12 MEMORANDUM by intervenors Esther Herrera and Marcella Martinez in support of motion to intervene [11-1] (sl) (Entered: 05/16/2001)
13 CERTIFICATE of service by pltf of interrogatories, requests to produce documents to counsel on 5/18/01 (vv) (Entered: 05/22/2001)
14 NOTICE of hearing Status hearing set on 7/25/01 @ 2:00 pm before Judge Paul Kelly Jr in Albuquerque, NM (cc: all counsel*) (dmw) (Entered: 06/29/2001)
15 AFFIDAVIT of service by Alan M. Malott of copy of motion to intervene and brief in support of motion to counsel on 7/9/01 (sl) Modified on 07/24/2001 (Entered: 07/10/2001)
16 CERTIFICATE of service by pltf of ntc of depositions of Kathy Romero to counsel on 7/6/01 (vv) Modified on 07/24/2001 (Entered: 07/16/2001)
17 CERTIFICATE of service by plaintiff of second interrogatories and request for production documents to counsel on 7/23/01 (sl) (Entered: 07/30/2001)
20 JOINT MOTION for Extension of two-weeks extension of discovery deadline by USA (sl) (Entered: 08/03/2001)
18 ORDER by Circuit Judge Paul Kelly Jr. granting Esther Herrera, Marcella Martinez and Lorraine Sanchez's motion to intervene [11-1] (cc: all counsel*) (sl) (Entered: 08/03/2001)
19 CLERK'S MINUTES: before Circuit Judge Paul Kelly Jr. Status conference held 8/3/01 C/R: Denise Kopan (sl) Modified on 08/08/2001 (Entered: 08/03/2001)
21 ORDER by Magistrate Judge Richard L. Puglisi granting parties joint motion for extension of discovery deadline [20-1] ; Discovery cutoff 9/13/01 (cc: all counsel) (sl) (Entered: 08/03/2001)
22 INTERVENOR'S COMPLAINT by intervenors (sl) (Entered: 08/07/2001)
SUMMONS issued as to defendant Village of Cuba (sl) (Entered: 08/07/2001)
23 ANSWER by deft to complaint in intervention [22-1] (vv) (Entered: 08/20/2001)

08/29/2001 10/05/2001
10/26/2001 10/29/2001 11/16/2001 11/27/2001 05/22/2002 05/28/2002
08/27/2002
08/27/2002
08/27/2002 08/27/2002

24 CERTIFICATE of service by deft of answers to 2nd interrogatories & requests to produce documents to counsel on 8/29/01 (vv) (Entered: 08/30/2001)
25 NOTICE of hearing before Circuit Judge Paul J. Kelly, Jr. Status conference set for 10/31/01 at 10:00 am in Albuquerque, NM (cc: all counsel*) (sl) Modified on 10/10/2001 (Entered: 10/05/2001)
26 ORDER by Circuit Judge Paul Kelly Jr. Status hearing vacated (cc: all counsel) (vv) (Entered: 10/26/2001)
27 MINUTE ORDER: Telephonic Status hearing set for 11/2/01 at 10:00 am before Judge Puglisi (cc: all counsel*) (vv) (Entered: 10/29/2001)
SETTLEMENT CONFERENCE held before Magistrate Judge Richard L. Puglisi (sl) (Entered: 11/16/2001)
28 SETTLEMENT AGREEMENT AND ORDER THERON by Circuit Judge Paul Kelly Jr. (see order for specifics) (cc: all counsel) (mjr) (Entered: 11/27/2001)
29 JOINT MOTION to extend settlement agreement filed on 11/27/01 to provide for completion of all provisions of the agreement (sl) Modified on 05/29/2002 (Entered: 05/22/2002)
30 ORDER by Circuit Judge Paul Kelly Jr. granting motion to extend settlement agreement filed on 11/27/01 to provide completion of all provisions of the ageement [29-1] (cc: all counsel) (mjr) (Entered: 05/28/2002)
31 MOTION by USA for order requiring deft to show cause why it should not be held in contempt for failing to comply with all of the provisions of the settlement agreement (sl) (Entered: 08/28/2002)
32 MEMORANDUM by USA in support of motion for order requiring deft to show cause why it should not be held in contempt for failing to comply with all of the provisions of the settlement agreement [31-1] (sl) (Entered: 08/28/2002)
33 CERTIFICATE by plaintiff of service of motion for order to show cause to counsel on 08/01/02 (mlk) Modified on 09/05/2002 (Entered: 08/28/2002)
34 AMENDED CERTIFICATE by plaintiff of service of motion for order to show cause to counsel on 08/05/02 (mlk) Modified on 09/05/2002 (Entered: 08/28/2002)

09/05/2002
09/19/2002 10/03/2002 10/15/2002 11/18/2002 11/18/2002 11/18/2002

35 ORDER by Circuit Judge Paul Kelly Jr. granting USA's motion for order requiring deft to show cause why it should not be in contempt for failing to comply with all of the of the settlement agreement [31-1] show cause hearing is set for 9/30/02 at 9:00 am in Santa Fe, NM (cc: all counsel*) (sl) (Entered: 09/06/2002)
36 NOTICE of hearing before Circuit Judge Paul J. Kelly on Order to Show Cause 9/30/02 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 09/20/2002)
37 CLERK'S MINUTES: before Circuit Judge Paul Kelly Jr. show cause hearing held on 9/30/02 C/R: Irene Delgado (sl) (Entered: 10/04/2002)
38 ORDER by Circuit Judge Paul Kelly Jr. re; [31-1] (see order for specifics) (cc: all counsel) (mjr) (Entered: 10/15/2002)
39 JOINT CERTIFICATE OF COMPLIANCE w/the settlement agreement by deft Village of Cuba (mjr) Modified on 11/20/2002 (Entered: 11/18/2002)
40 DISCHARGE ORDER by Circuit Judge Paul Kelly Jr. discharging the Show Cause order entered on 10/15/02 re [35-1] (cc: all counsel) (mjr) (Entered: 11/18/2002)
41 ORDER by Circuit Judge Paul Kelly Jr. of dismissal of case w/prejudice dismissing case (cc: all counsel) (mjr) (Entered: 11/18/2002)