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Certiorari Denied, January 3, 2011, No. 32,730

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-057

Filing Date: November 4, 2010 

Docket No. 28,825

WENDY CHARLES,

Plaintiff-Appellee,

v.

THE REGENTS OF NEW MEXICO STATE

UNIVERSITY, f/k/a NEW MEXICO COLLEGE

OF AGRICULTURE AND MECHANIC ARTS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Robert E. Robles, District Judge

Mike Milligan

El Paso, TX

for Appellee

Miller Stratvert P.A.

Charlotte Lamont

Albuquerque, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant, New Mexico State University (NMSU), appeals from a jury verdict

awarding Plaintiff Wendy Charles $124,653.93 on her claims of retaliation and constructive

discharge. On appeal, we address Defendant’s arguments that (1) the statute of limitations

provided in the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -14
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(1969, as amended through 2007), bars acts outside the limitations period from being

considered, and (2) there is insufficient evidence, as a matter of law, to support the jury’s

verdict. We hold that Plaintiff’s retaliation claim can be considered under the continuing

violation doctrine, allowing facts and evidence prior to the NMHRA statute of limitations

cut-off to be considered. We further hold that there is sufficient evidence to support the

jury’s determination that a constructive discharge occurred. Accordingly, we affirm.

BACKGROUND

{2} Plaintiff began working as a teaching assistant in the Facilities Maintenance Program

at NMSU’s Doña Ana Branch Community College on January 19, 2001, and she worked

there until her resignation on January 31, 2005. Plaintiff was a Technician IV-Lab Tech and

assisted instructor James Thompson with his courses. Juan Reyes was also a lab technician

and worked part-time assisting Thompson. Thompson was Plaintiff’s supervisor from

January 2001 until July 2003. Following a university reorganization, in July 2003, Terry

Mount became Plaintiff’s supervisor. Mount acted as Plaintiff’s supervisor until Plaintiff’s

resignation in January 2005.

{3} Plaintiff testified that shortly after she began working at the university, Reyes

commented to Plaintiff that he did not like it when Plaintiff held her blouse closed as she

bent over to pick something up. Plaintiff testified that she informed Reyes that such

statements were inappropriate. Reyes made this statement or similar statements on three

separate occasions. The first statement occurred on January 23, 2001, four days after

Plaintiff began working for Defendant. The other statements occurred on January 24, and

August 8, 2001. Plaintiff testified that, a few days after she first informed Reyes that his

comment was inappropriate, Reyes told Plaintiff to “shut-up” and that she did not “know

what [she was] talking about” at a meeting in front of both faculty and students. During

Plaintiff’s employment, Reyes also called Plaintiff names, yelled at Plaintiff, made sarcastic

comments about Plaintiff’s abilities and the amount of work she did, slammed or hit tables

or equipment in Plaintiff’s presence, and refused to give Plaintiff receipts or promptly return

Plaintiff’s credit card when he purchased items using the university credit card issued in

Plaintiff’s name. Some of these acts occurred in front of students.

{4} In March 2001, Plaintiff complained to Thompson about her difficulties in sharing

use of the university credit card with Reyes. In August 2001, Plaintiff complained to

Thompson again about Reyes’s behavior, informing Thompson that Reyes had made

inappropriate comments about Plaintiff holding her blouse closed when she bent over.

Thompson talked to Reyes on more than one occasion and told Plaintiff that they all needed

to “try harder to get along.” In February 2003, Plaintiff complained to Thompson in writing

about Reyes’s behavior, and a personnel meeting was held. The dean attended the meeting

and an agreement was reached between Plaintiff and Reyes to treat each other more

professionally.

{5} Plaintiff contends that, beginning in August 2002, Thompson began retaliating
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against her by unfairly criticizing her attendance and work performance. According to

Plaintiff, Thompson also became more angry, rude, and demeaning toward Plaintiff after the

personnel meeting. Thompson began accusing Plaintiff of being late, of not getting the

correct supplies, and of not completing her job duties. Thompson also cancelled training

Plaintiff had requested and lowered Plaintiff’s performance evaluation in the area of “work

relations.” Plaintiff testified that Thompson yelled at her in front of students and threw a

cigarette butt at her. When Plaintiff returned to the dean of the university in September 2003

to complain about this conduct, the dean referred Plaintiff to her new supervisor, Mount.

Plaintiff had multiple meetings with Mount regarding her concerns.

{6} In June 2004, Plaintiff filed an informal grievance with NMSU’s Equal Employment

Opportunity (EEO) office. On September 27, 2004, the EEO office issued a letter stating

that it did not find Plaintiff’s complaints to amount to discrimination and referred the case

to the Assistant Director of Employee Relations for NMSU, Mack Adams. Adams instituted

a mediation process that began on October 28, 2004. The mediation concluded, and a

mediation agreement circulated in mid-December 2004. The agreement provided Plaintiff

with a flexible work schedule; provided Plaintiff training if budgetary constraints allowed;

established bi-weekly meetings between Mount, Plaintiff, Thompson, and Reyes; and stated

that Plaintiff would bring any inappropriate conduct by Reyes to Thompson’s or Mount’s

attention. Following suggestions by Mount and Thompson, the mediation agreement was

amended in early January 2005 to provide for bi-weekly meetings between Plaintiff and

Mount, rather than including all parties. The amended mediation agreement also provided

that Plaintiff should attempt to resolve any complaints she had that Reyes was not treating

her correctly first with Reyes, then with Thompson, and lastly with Mount. The agreement

provided, however, that Plaintiff could go directly to Thompson if she did not feel she could

discuss her concern with Reyes. On January 14, 2005, Plaintiff submitted her notice of

resignation. Plaintiff’s last day of employment was January 31, 2005.

{7} Plaintiff filed complaints with the Equal Employment Opportunity Commission

(EEOC) and the New Mexico Human Rights Division. In October 2006, Plaintiff filed this

civil suit alleging sexual harassment, retaliation, and constructive discharge. Prior to trial,

Defendant filed a motion for summary judgment, asserting that the evidence did not support

a constructive discharge. After considering the conflicting evidence presented, the district

court denied the motion. At the close of Plaintiff’s evidence at trial, Defendant made an oral

motion for directed verdict, asserting again that the evidence was insufficient to support a

constructive discharge, and the district court denied the motion. The jury entered a verdict

in favor of Plaintiff on the retaliation claim, but it found in Defendant’s favor on the sexual

harassment claim. The jury further found that “Plaintiff was constructively discharged from

her employment.” The jury awarded Plaintiff $94,653.93 in lost wages and $30,000 for

emotional distress. After the jury returned its verdict, Defendant filed a motion for judgment

notwithstanding the verdict, or in the alternative, a new trial, arguing a third time that the

evidence was insufficient to support a constructive discharge. The district court denied this

motion as well. Defendant appeals.

RETALIATION CLAIM
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{8} The NMHRA provides that it is an unlawful discriminatory practice for any person

or employer to “engage in any form of threats, reprisal or discrimination against any person

who has opposed any unlawful discriminatory practice or has filed a complaint, testified or

participated in any proceeding under the [NMHRA].” Section 28-1-7(I)(2). In order to

establish a claim of retaliation under the NMHRA, a plaintiff must demonstrate that “(1) she

engaged in protected activity; (2) she suffered an adverse employment action; and (3) there

is a causal connection between these two events.” Ocana v. Am. Furniture Co., 2004-

NMSC-018, ¶ 33, 135 N.M. 539, 91 P.3d 58. “An adverse employment action occurs when

an employer imposes a tangible, significant, harmful change in the conditions of

employment.” Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC-009, ¶ 16, 139 N.M. 193,

131 P.3d 43. Plaintiff claims that the adverse employment action she suffered was a

constructive discharge.

{9} On appeal, Defendant argues that (1) the applicable statute of limitations bars

Plaintiff from including in her retaliation claim acts that occurred more than 180 days prior

to Plaintiff filing her complaint with the EEOC, and (2) Plaintiff presented insufficient

evidence to establish either that she was constructively discharged or that her constructive

discharge was causally connected to a protected activity. We address each argument below.

Statute of Limitations

{10} Defendant contends that Plaintiff filed her complaint with the EEOC on April 12,

2005. Defendant therefore claims that any acts occurring prior to November 2004 should

not be considered in support of Plaintiff’s retaliation claim. Plaintiff contends that her

EEOC complaint was filed when the EEOC received her intake questionnaire, which,

according to Plaintiff, was on March 27, 2005. Regardless, Plaintiff substantively advocates

that all of the conduct that occurred during her employment be considered pursuant to the

continuing violation doctrine. We note that neither party argues that the new 300-day

limitation period created by the 2005 amendment to Section 28-1-10 applies. See Ulibarri,

2006-NMSC-009, ¶ 8.

{11} “[T]he continuing violation doctrine [is] an equitable doctrine permitting a plaintiff

to bring an otherwise untimely claim.” Id. ¶ 9. The continuing violation doctrine

distinguishes between “[d]iscrete acts such as termination, failure to promote, denial of

transfer, or refusal to hire[, which] are easy to identify,” and hostile environment cases. Id.

¶¶ 9-10 (internal quotation marks and citation omitted). The basis for this distinction is that

discrete acts generally “constitute separate, actionable unlawful employment practices” and

“take place at an identifiable time,” id. ¶ 9, while hostile environment cases “involve

repeated conduct over days or years” and “can be said to have ‘occurred’ at the time of any

act contributing to the hostile environment.” Id. ¶ 10. Thus, while “a charge covering . . .

discrete acts must be filed within the appropriate time period,” id. ¶ 9, “if one act

contributing to a hostile environment claim occurred within the filing period, all acts creating

the hostile environment may be considered.” Id. ¶ 10.

{12} Although our Supreme Court adopted the continuing violation doctrine for hostile

work environment cases in Ulibarri, it did not address whether the doctrine applies to
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retaliation claims. Nevertheless, like hostile environment cases, cases involving retaliation

resulting in constructive discharge may “involve repeated conduct over days or years and

individual acts of [retaliation] may not be separately actionable.” Id.; see also Gonzales v.

New Mexico Dep’t of Health, 2000-NMSC-029, ¶¶ 23, 25, 129 N.M. 586, 11 P.3d 550

(holding that a jury could reasonably conclude that the evidence supported the plaintiff’s

claim of retaliation based on evidence that the plaintiff was criticized, called a troublemaker, transferred to a more remote building, not informed of, and denied access to, a

posting in which she was interested, and discussing the plaintiff’s claim that “the acts of

discrimination and retaliation occurred in [a] six-year period”). Therefore, a claim of

retaliation resulting in constructive discharge may be based on a series of acts over time.

See, e.g., Littell v. Allstate Ins. Co., 2008-NMCA-012, ¶¶ 16-32, 41-44, 51, 143 N.M. 506,

177 P.3d 1080 (affirming a jury verdict for retaliation resulting in constructive discharge

based on a series of acts by the supervisor and not on one distinct act). We see no reason to

exclude Plaintiff’s retaliation claim from the continuing violation doctrine. Consequently,

“if one act contributing to a [retaliation] claim [based on a series of actions and not a single,

discrete act] occurred within the filing period, all acts creating the [retaliation claim] may

be considered.” Ulibarri, 2006-NMSC-009, ¶ 10.

{13} We must therefore consider whether Plaintiff’s retaliation claim is based on a discrete

act or on a cumulative series of acts. See id. ¶ 11. “The NMHRA makes it unlawful for any

person or employer to retaliate against any person who has opposed any unlawful

discriminatory practice.” Ocana, 2004-NMSC-018, ¶ 35 (internal quotation marks and

citation omitted); Section 28-1-7(I)(2). Retaliation can include threats, reprisals, or

discrimination. See Gonzales, 2000-NMSC-029, ¶ 19. In this case, Plaintiff asserts that she

complained several times, and after each complaint, she experienced retaliation from Reyes,

Thompson, and Mount. According to Plaintiff, the retaliation took the form of harassment,

threatening behavior discrimination, and reprisals. Plaintiff’s claim of retaliation is,

therefore, based on a cumulative series of acts, not a “discrete discriminatory act.” Contra

Ulibarri, 2006-NMSC-009, ¶ 11. Consequently, we agree with Plaintiff that all of the

conduct that occurred during her employment could have been considered by the jury for her

claim, pursuant to the continuing violation doctrine.

Sufficiency of the Evidence

{14} Defendant argues that Plaintiff presented insufficient evidence to support either a

claim of constructive discharge or that there was a causal connection between the

constructive discharge and a protected activity. The sufficiency of the evidence is assessed

in the context of the jury instructions. Littell, 2008-NMCA-012, ¶ 41. To establish her

claim for constructive discharge, the jury was instructed that Plaintiff had the burden of

proving that “Defendant . . . made [Plaintiff’s] working conditions so intolerable, when

viewed objectively, that a reasonable person would be compelled to resign; essentially, that

she had no other choice but to quit.” The instruction correctly sets forth the elements of a

constructive discharge under New Mexico law. Gormley v. Coca-Cola Enters. (Gormley II),

2005-NMSC-003, ¶ 10, 137 N.M. 192, 109 P.3d 280 (stating that a claim for constructive

discharge requires an employee to show “that the employer made working conditions so

intolerable, when viewed objectively, that a reasonable person would be compelled to
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resign”); see also Littell, 2008-NMCA-012, ¶ 41 (providing the jury with a constructive

discharge elements instruction stating that, in order to consider the plaintiff constructively

discharged, the jury must “find that [the d]efendant . . . made her working conditions so

intolerable, when viewed objectively, that a reasonable person would be compelled to resign,

and she had no other choice but to quit”). Our Supreme Court has noted that “[t]he bar is

quite high for proving constructive discharge.” Gormley II, 2005-NMSC-003, ¶ 10 (internal

quotation marks and citation omitted). 

{15} Our standard of review in assessing whether the verdict of the jury is supported by

the evidence is well settled:

In reviewing a sufficiency of the evidence claim, this Court views the

evidence in a light most favorable to the prevailing party and disregard[s] any

inferences and evidence to the contrary. We defer to the jury’s determination

regarding the credibility of witnesses and the reconciliation of inconsistent

or contradictory evidence. We simply review the evidence to determine

whether there is evidence that a reasonable mind would find adequate to

support a conclusion.

Littell, 2008-NMCA-012, ¶ 13 (alteration in original) (internal quotation marks and citations

omitted). Our courts have looked to federal decisions for guidance to determine the elements

of a constructive discharge under New Mexico law. See Gormley II, 2005-NMSC-003, ¶ 10.

However, we have not adopted, wholesale, federal decisions, particularly when assessing

whether the evidence is sufficient to prove a constructive discharge. Littell, 2008-NMCA012, ¶ 13 (“We reject [Defendant’s] contention that the ‘clearly erroneous’ standard of

review, which is employed by the federal courts, applies in this state court action.”). Our

standard of review does not change because we are tasked with assessing the sufficiency of

the evidence for a constructive discharge. That is, we view the evidence as described in

Littell to determine if the essential elements of a constructive discharge, as set forth in the

elements instruction, were proven.

{16} In determining whether a plaintiff has satisfied this burden, “[t]he specific facts of

the employment condition, and the severity of its impact upon the employee, are pivotal.”

Id. ¶ 12. “In many cases, the circumstances surrounding resignation are not egregious

enough to support a claim.” Id. Our appellate courts have declined to establish bright-line

rules for determining whether a constructive discharge exists and have instead chosen to

consider a number of factors in assessing the specific circumstances of each case. See id.

¶ 21; Littell, 2008-NMCA-012, ¶ 48. Some of the factors that our appellate courts have

identified in constructive discharge cases include whether an employer has threatened

termination, suggested that the employee resign or retire, demoted the employee, or reduced

the employee’s pay, see Gormley II, 2005-NMSC-003, ¶¶ 11, 16; whether the employee has

been subjected to unreasonable criticism or discipline, id.; see Littell, 2008-NMCA-012, ¶

42; whether an employee remained on the job after the onset of the intolerable working

conditions and for what length of time, see Ulibarri, 2006-NMSC-009, ¶ 14; Gormley II,

2005-NMSC-003, ¶¶ 19-20; whether an employee gave notice prior to quitting, Gormley II,

2005-NMSC-003, ¶¶ 20-21; whether the employee was subjected to conduct such as
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aggressive, physically intimidating behavior or public humiliation, see Littell, 2008-NMCA012, ¶ 42; and whether an employer had an opportunity to or attempted to resolve the

problem, Gormley I, 2004-NMCA-021, ¶¶ 14, 17; see Littell, 2008-NMCA-012, ¶ 43.

{17} In line with Gormley II, the question for the jury under the elements instruction in

this case was not whether the working conditions were merely difficult or unpleasant, but

whether Defendant made Plaintiff’s working conditions “so intolerable, when viewed

objectively, that a reasonable person would be compelled to resign; essentially, that she had

no other choice but to quit.” See 2005-NMSC-003, ¶ 10. The jury also received an

instruction that Defendant denied Plaintiff’s retaliation claim and contended that “she was

not subjected to any objectively materially adverse employment action and that the alleged

acts of retaliation were normal supervisory acts done in the regular course of business.” In

addition, the jury received an instruction that Defendant also denied that Plaintiff was

constructively discharged and asserted that “the acts complained of were average

supervisory conduct, and that Plaintiff . . . voluntarily resigned.” In accordance with UJI 13-

304 NMRA, the Jury was instructed that, in evaluating the competing claims of Plaintiff and

Defendant,

A party seeking recovery or a party relying upon a defense has the

burden of proving every essential element of the claim or defense by the

greater weight of the evidence.

To prove by a greater weight of the evidence means to establish that

something is more likely true than not true. When I say in these instructions

that the party has the burden of proof on sexual and retaliatory harassment

and constructive discharge, I mean that you must be persuaded that what is

sought to be proved is more probably true than not true. Evenly balanced

evidence is not sufficient.

The jury received accurate, complete instructions on the applicable law and its duties in

evaluating the evidence and contentions of the parties.

{18} Plaintiff presented testimony that, during her four years of employment with

Defendant, her co-worker Reyes yelled at her; told her to “shut-up”; said she did not do

anything; and called her “telele” (Spanish for “dummy”), “Miss know-it-all,” and, on one

occasion, a “stupid bitch.” Plaintiff also testified that, on at least one occasion, Reyes

subjected her to aggressive and intimidating conduct by yelling at her while standing with

his face only inches from her own, and on another occasion told Plaintiff that if she held her

blouse closed while bending over he would “kick [her] right up the ass.” Some of this

conduct occurred in front of students. Plaintiff also presented evidence that Reyes slammed

drawers and cabinets, refused to give her receipts for purchases he had made using a

university credit card that was issued in Plaintiff’s name, and laughed at Plaintiff and made

fun of her. Similarly, Plaintiff presented evidence that her supervisor, Thompson, yelled at

Plaintiff and criticized her in front of students, and on one occasion, picked up a cigarette

butt off the floor and threw it at Plaintiff’s chest accusing Plaintiff of having left it on the

floor.
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{19} Plaintiff also claims she was subjected to unfair criticism of her work performance.

Plaintiff presented evidence that Thompson accused her of being late and of not following

the class syllabus, complained that student grades were missing, complained that the

program website contained misspelled words and had not been updated, and complained that

Plaintiff had not completed other job duties, such as inventory, in a timely fashion. Further,

Plaintiff presented evidence that Thompson came into her office and threw folders on the

floor looking for something he had misplaced in his own office, began changing his mind

about due dates for projects and about supplies he had requested Plaintiff to purchase, and

had decreased Plaintiff’s performance rating on her evaluation under “working relations.”

{20} The jury concluded, based on the evidence, that Plaintiff was constructively

discharged. The jury apparently concluded that Plaintiff’s evidence was more credible than

Defendant’s, and our task is not to second guess its factual findings. Littell, 2008-NMCA012, ¶¶ 38, 45, 48 (stating that we review for substantial evidence to support the result

reached, that the trier of fact resolves conflicts in testimony, and that we do not reweigh

evidence or substitute our judgment for that of the jury). In Littell, we rejected the

defendant’s sufficiency of the evidence argument that in effect asked us to reweigh the

evidence. Id. ¶ 48. We stated that “[i]t is not our role to reweigh the evidence or substitute

our judgment for that of the jury.” Id. We therefore concluded that “the evidence, when

considered in its totality, could have reasonably supported the jury’s conclusion that [the

d]efendant made [the p]laintiff’s working conditions so intolerable that a reasonable person

in her position would have been compelled to resign.” Id. As in Littell, the evidence set

forth by Plaintiff is sufficient to sustain the jury verdict.

{21} We note that Defendant attempts to distinguish this case from Littell. We are not

persuaded. In Littell, this Court held that a constructive discharge existed when, among

other factors, the plaintiff had been subjected to criticism that was “inaccurate and

outrageous” in that the plaintiff testified the criticism was without any factual basis, and the

plaintiff had presented testimony from other people that she worked with closely that she

was a competent employee who did excellent work. Id. ¶ 42. In contrast to Littell,

Defendant argues that Plaintiff was never formally disciplined, that her work space was not

altered, and that she was not denied a leave of absence. Defendant further argues that

Plaintiff did not offer testimony from people who could attest to “unusual interactions

between [Plaintiff] and Thompson”; she was not subjected to any formal discipline; and she

was not ever threatened with termination, demoted, asked to resign, or subjected to a

reduction in pay. Defendant additionally points out that Plaintiff remained on the job after

the onset of allegedly intolerable working conditions for quite some time, Plaintiff explored

her options prior to leaving, and Plaintiff gave notice prior to her resignation.

{22} However, we do not review evidence to determine if it supports an opposite result,

but we determine whether the evidence is sufficient to support the result reached. Id. ¶ 38.

As discussed above, the evidence presented to the jury was sufficient to support the jury’s

findings. Although Defendant attempts to resolve the issues raised by Plaintiff by

undercutting Plaintiff’s argument that a reasonable person would have felt she had no other

choice but to quit at the time Plaintiff submitted her resignation, we do not reweigh evidence

or “substitute our judgment for that of the jury.” Id. ¶ 48.
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{23} Defendant additionally makes similar arguments, pursuant to Gormley I, that (1)

Plaintiff had been looking for another job during the last months of her employment and

intended to quit once she had secured one, see 2004-NMCA-021, ¶ 17 (relying, in part, on

the fact that the plaintiff waited over a year after a reduction in pay during which he

investigated his social security benefits and decided to take early retirement prior to

resigning and concluding that the plaintiff was not constructively discharged); and (2)

Plaintiff tolerated the conduct she complains of for a significant period of time. However,

our Supreme Court declined to stipulate “a time within which an employee must leave to

complain of constructive discharge.” Gormley II, 2005-NMSC-003, ¶ 21 (further stating that

“the circumstances surrounding how long the employee remains on the job and continues to

suffer from onerous conditions” is only one factor that we must consider in looking at the

specific circumstances of a case to determine if a constructive discharge occurred).

Moreover, a plaintiff remaining in a position and tolerating inappropriate behavior for a

significant period of time is not fatal to a constructive discharge. See Littell, 2008-NMCA012, ¶¶ 17, 24, 30, 42 (upholding the jury’s determination that a constructive discharge had

occurred when the plaintiff tolerated sexually harassing behavior for more than three years

and physical intimidation, pretextual discipline, and sabotage by her supervisor for at least

a year).

CONCLUSION

{24} For the foregoing reasons, we affirm.

{25} IT IS SO ORDERED.

______________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

______________________________________

CELIA FOY CASTILLO, Judge

______________________________________

MICHAEL E. VIGIL, Judge

Topic Index for Charles v. NMSU Regents, Docket No. 28,825

AE APPEAL AND ERROR

AE-SB Substantial or Sufficient Evidence

AE-SR Standard of Review 

CP CIVIL PROCEDURE

CP-JV Jury Verdict

CP-SL Statute of Limitations
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CR CIVIL RIGHTS

CR-ED Employment Discrimination

CR-HA Human Rights Act

CR-SX Sex Discrimination

EL EMPLOYMENT LAW

EL-DS Discrimination

EL-RT Retaliatory Discharge

EL-TE Termination of Employment