2021 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 16C - Whistleblower Protection
Section 10-16C-3 - Public employer retaliatory action prohibited.
A public employer shall not take any retaliatory action against a public employee because the public employee:
A. communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;
B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or
C. objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act.
History: Laws 2010, ch. 12, § 3.
ANNOTATIONSEffective dates. — Laws 2010, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 19, 2010, 90 days after the adjournment of the legislature.
Applicability. — Laws 2010, ch. 12, § 7 provided that the provisions of the Whistleblower Protection Act apply only to civil actions for damages resulting from retaliatory action that occurred on or after July 1, 2008.
Dismissal of claim was proper where asserted claim was legally deficient. — Where doctor sued his employer, the board of regents of the university of New Mexico and the university of New Mexico health sciences center for violation of the New Mexico Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., on the ground that employer terminated doctor's employment in retaliation for a previously filed lawsuit, the district court did not err in dismissing doctor's case for failure to state a claim pursuant to 1-012(B)(6) NMRA, where plaintiff alleged only the act of retaliation, that is, the termination of his employment, but failed to allege that employer retaliated against him because he communicated about "an unlawful or improper act," as that term is defined in the WPA. Wills v. Board of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009.
Whistleblower protection laws are designed to benefit the public. — Where doctor sued his employer, the board of regents of the university of New Mexico and the university of New Mexico health sciences center, for violation of the New Mexico Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., on the ground that employer terminated doctor's employment in retaliation for a previously filed lawsuit in which doctor alleged that employer was abusing its authority by withholding doctor's contractually agreed-upon pay, the district court did not err in dismissing doctor's claim, because the WPA was designed to protect communications that benefit the public by exposing unlawful and improper actions by government employees, not communications regarding personal personnel grievances that primarily benefit the individual employee. Wills v. Board of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009.
Sufficient evidence supported the jury's verdict. — Where plaintiff brought a claim under the Whistleblower Protection Act (WPA), claiming that defendants were in violation of state law by failing to promptly and immediately investigate reports of child abuse and neglect referred to the Farmington police department (FPD) from the New Mexico children, youth and families department (CYFD), evidence presented at trial that plaintiff in good faith believed that defendants were in violation of 32A-4-3 NMSA 1978, in failing to immediately and promptly investigate CYFD referrals, that plaintiff engaged in protected activity by communicating to his superiors his belief that defendants were violating state law by failing its duty, that after plaintiff reported potential negligence on the part of the FPD, defendants removed plaintiff from the cyber crime task force (CCTF), made humiliating comments about him to his colleagues, issued him a substandard work vehicle, and required him to surrender his key to the forensic lab and cease investigating his caseload of crimes against children, and that plaintiff suffered depression, rage, and fear that he would be terminated before he reached eligibility for retirement that caused him to seek counseling, as well as the loss of detective and CCTF overtime pay, provided a substantial evidentiary basis to support the jury's decision that plaintiff established his WPA claim. Dart v. Westall, 2018-NMCA-061.
Evidence sufficed to prove that plaintiff engaged in conduct the WPA protects. — Where plaintiff sued defendant Northern New Mexico College (NNMC) pursuant to the New Mexico Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6, and where plaintiff offered evidence at trial that NNMC removed her from her position as director of NNMC's campus in El Rito, New Mexico, transferred her to another position, and then terminated her employment in retaliation for her communications to NNMC's administrators about NNMC's failure to approve expenditures necessary for the successful implementation of a plan to revitalize the El Rito campus, there was sufficient evidence to support the jury's determination that NNMC retaliated against plaintiff for engaging in conduct protected by the WPA and that plaintiff's communications pertained to what plaintiff believed in good faith was gross mismanagement, where the evidence established that plaintiff was communicating in good faith with NNMC about a waste of funds when she alerted the president of the college and other officials the importance of making requested expenditures for the revitalization of the El Rito campus; the facts available to plaintiff gave her a reasonable basis to believe that the potential for a waste of funds was real and immediate and the refusal to approve the expenditures posed a substantial risk of a significant adverse impact on NNMC's ability to revitalize the El Rito campus. Velasquez v. Regents of Northern N.M. Coll., 2021-NMCA-007, cert. denied.
Sufficient evidence of retaliation. — Where plaintiff sued defendant Northern New Mexico College (NNMC) pursuant to the New Mexico Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6, and where plaintiff offered evidence at trial that NNMC removed her from her position as director of NNMC's campus in El Rito, New Mexico, transferred her to another position, and then terminated her employment in retaliation for her communications to NNMC's administrators about NNMC's failure to approve expenditures necessary for the successful implementation of a plan to revitalize the El Rito campus, there was sufficient evidence to support the jury's determination that NNMC retaliated against plaintiff for engaging in conduct protected by the WPA by removing plaintiff from her position as director of the El Rito campus and later by terminating her employment, where the evidence established that NNMC removed plaintiff from the campus director position just a few weeks after she communicated her concerns to NNMC's administrators and that plaintiff received positive performance evaluations before she communicated her concerns, but received negative evaluations after her communications. Velasquez v. Regents of Northern N.M. Coll., 2021-NMCA-007, cert. denied.
Pornographic images relevant to affirmative defense of justifiable termination. — Where plaintiff brought a suit under the Whistleblower Protection Act, §§ 10-16C-1 through 10-16C-6 NMSA 1978, alleging that the town of Taos (town) terminated his employment in retaliation for complaints he made about mismanagement and waste, the district court did not abuse its discretion in allowing the town to introduce thirty pornographic images, although 5000 pornographic images were found on plaintiff's work computer, in support of its affirmative defense that it terminated plaintiff's employment for viewing pornography at work, not for retaliation. The evidence was probative of the town's defense that the termination was reasonable and was due to the extensive and improper use of plaintiff's work computer during work hours. Maestas v. Town of Taos, 2020-NMCA-027, cert. granted.
Plaintiff not entitled to equitable relief. — Where plaintiff brought a suit under the Whistleblower Protection Act, §§ 10-16C-1 through 10-16C-6 NMSA 1978, alleging that the town of Taos (town) terminated his employment in retaliation for complaints he made about mismanagement and waste, the district court did not abuse its discretion in denying plaintiff's equitable request for front pay as an alternative remedy to reinstatement, because plaintiff did not request reinstatement and front pay is only available if the court finds that reinstatement is inappropriate. Maestas v. Town of Taos, 2020-NMCA-027, cert. granted.
