In a case of first impression, the New Mexico Court of Appeals has held that State employees on probationary status may still assert a claim of sex or race discrimination under the New Mexico Human Rights Act (HRA). See Rodriguez v. NM Workforce Solutions, 2012-NMCA-059.
The employee, Maria Rodriguez, was initially hired as a temporary employee, which position was renewed with her knowledge and consent several times. Thereafter, she was hired as a regular employee and then she was terminated while still serving in the statutory 90-day probationary status. She exhausted all administrative remedies and filed notice of appeal and complaint in District Court alleging a violation of the HRA.
The employer, NM Workforce Solutions, filed a motion for summary judgement, stating that the Court lacked jurisdiction to hear the claim because the employee did not have a property interest in continued employment, since the State was permitted under the State Personnel Regulations to fire Plaintiff without cause during her probationary period. See 1.7.11.11 NMAC ("[p]robationers ... may be suspended, demoted, or dismissed effective immediately with written notice and without right of appeal to the board").
The motion--granted by the District Court--relied primarily on two federal cases involving claims under 42 USC § 1983, in which summary judgement was granted because of a lack of property interest in continued employment. See Lighton v. Univ. of Utah, 209 F.3d 1213 (10th Cir. 2000) (§ 1983 claims are only actionable where the employee possesses a property or liberty interest in the employment), and Russillo v. Scarborough, 935 F.2d 1167 (10th Cir. 1991) (affirming summary judgement for employer where plaintiff employee was "at will" an therefore had no protected property interest in his employment).
The employer also cited several NM cases. Lovato v. City of Albuquerque, 106 NM 287 (1987), quoted Rusillo language that plaintiff's "employment status was a protected property interest only if he had an express or implied right to continued employment." Clark v. CYFD, 1999-NMCA-114, and Cockrell v. Bd. of Regents of NM State Univ., 1999-NMCA-073, also dealing with a § 1983 claims, and concluded respectively that the probationary employee "did not have a property interest in continuing employment," and had "no expectancy of continued employment."
Finally, the employee urged that "the composite provisions in the Personnel Act that distinguish an employee from a probationary employee," see ¶ 12, were a "bona fide occupational qualification or other statutory prohibition," see HRA § 28-1-7(A), that is "excluded from the definition of discriminatory practice under the Human Rights Act." Id.
The Court of Appeals rejected all of the employer's arguments, noting "[t]he case before us is not one solely under the Personnel Act," but also the HRA. Moreover, because it is "not addressing a claim under § 1983, ... § 1983 is not at issue," and [n]either constitutional violations nor liberty or property interests are at issue." The Court analogized the HRA to Title VII, rather than § 1983, and noted that both are "designed to encourage employees to report when they are others are being subjected to illegal workplace discrimination." See NM Dept. of Info.,
815 F.Supp. 2d 1222 (DNM 2011) ("although a [probationary] employee may
be terminated without cause, she is still entitled to the protections
of Title II an the [Human Rights Act]"). See also Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986), and Henderson v. City of New York, 818 F.Supp. 2d 573 (EDNY July 20, 2011) (both federal cases in which the probationary plaintiff raised both § 1983 and Title VII claims, and the Title VII claims survived).
