2021 New Mexico Statutes
Article 16C - Whistleblower Protection
Section 10-16C-4 - Right to civil action for damages; affirmative defenses; remedy not exclusive.

A. A public employer that violates the provisions of the Whistleblower Protection Act shall be liable to the public employee for actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee. An employee may bring an action pursuant to this section in any court of competent jurisdiction.
B. It shall be an affirmative defense to a civil action brought pursuant to this section that the action taken by a public employer against a public employee was due to the employee's misconduct, the employee's poor job performance, a reduction in work force or other legitimate business purpose unrelated to conduct prohibited pursuant to the Whistleblower Protection Act and that retaliatory action was not a motivating factor.
C. The remedies provided for in the Whistleblower Protection Act are not exclusive and shall be in addition to any other remedies provided for in any other law or available under common law.
D. Nothing in the Whistleblower Protection Act precludes civil actions or criminal sanctions for libel, slander or other civil or criminal claims against a person who files a false claim under that act.
History: Laws 2010, ch. 12, § 4.
Effective 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.
Remedies are not exclusive. — The Whistleblower Protection Act (WPA), 10-16C-1 through -6 NMSA 1978, and the New Mexico Human Rights Act (HRA), 28-1-1 through -15 NMSA 1978, are not in irreconcilable conflict; a plaintiff may state a WPA claim alongside a claim under the HRA. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.
Where plaintiff, a resident physician at the university of New Mexico school of medicine, was dismissed from the residency program and brought suit against the board of regents of the university of New Mexico claiming that her termination was driven by discrimination and retaliation in violation of the New Mexico Human Rights Act (HRA), 28-1-1 NMSA 1978 et seq., and the Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., the district court erred in dismissing plaintiff's WPA claims on the grounds that the WPA and the HRA are irreconcilably conflicting and in concluding that plaintiff could therefore only proceed under the HRA. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.
The Whistleblower Protection Act does not permit a public employee to assert a claim against a state officer in his or her individual capacity. — Where plaintiffs brought actions pursuant to the Whistleblower Protection Act (WPA), claiming that defendant, the former New Mexico secretary of state, terminated plaintiffs' employment in retaliation for plaintiffs' allegations of defendant's misconduct in office, plaintiffs were without authorization to assert a claim against defendant in her personal capacity, because the WPA does not create a right of action against a current or former state officer in his or her individual capacity. Flores v. Herrera, 2016-NMSC-033, rev'g 2015-NMCA-072, 352 P.3d 695.
Public officer's departure from public office does not preclude relief. — Where plaintiffs brought actions pursuant to the Whistleblower Protection Act (WPA), claiming that defendant, the former New Mexico secretary of state, terminated plaintiffs' employment in retaliation for plaintiffs' allegations of defendant's misconduct in office, defendant's departure from public office did not preclude plaintiffs' claims, because if a state officer who is named as a defendant in a WPA suit dies or leaves office pending the final resolution of the action, the defendant's departure from public office would merely result in an automatic substitution of his or her successor in office, and the suit would proceed against the current officer. Flores v. Herrera, 2016-NMSC-033, rev'g 2015-NMCA-072, 352 P.3d 695.
The Whistleblower Protection Act does not exclude former officers from the purview of the act. — The act does not limit actions against officers to those officers who are presently in office at the time the action is filed. Flores v. Herrera, 2015-NMCA-072, cert. granted, 2015-NMCERT-006.
Where plaintiffs brought actions pursuant to the Whistleblower Protection Act claiming that defendant, the former New Mexico secretary of state, terminated plaintiffs' employment in retaliation for their whistleblowing activities, the fact that defendant was no longer secretary of state did not mandate dismissal of the action; where the alleged retaliatory action that prompted the lawsuit occurred when defendant was an "officer", as that term is defined in 10-16C-2 NMSA 1978, an action pursuant to the Whistleblower Protection Act may proceed even if the "officer" is no longer in office. Flores v. Herrera, 2015-NMCA-072, cert. granted, 2015-NMCERT-006.
The Whistleblower Protection Act permits lawsuits against officers in their individual capacity. — When a state official is sued for his or her own misconduct in office, the defendant is the individual, not the office, and when the state official leaves office, his or her successor is not substituted as the defendant in the litigation. Flores v. Herrera, 2015-NMCA-072, cert. granted, 2015-NMCERT-006.
Where plaintiffs brought actions pursuant to the Whistleblower Protection Act claiming that defendant, the former New Mexico secretary of state, terminated plaintiffs' employment in violation of the act, defendant was properly named individually as a defendant and sued in her personal capacity because the claims were based on defendant's alleged misconduct while in office, namely terminating plaintiffs' employment in retaliation for their whistleblowing activities. Flores v. Herrera, 2015-NMCA-072, cert. granted, 2015-NMCERT-006.
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.
Appropriate method for determining a reasonable attorney fee. — The appropriate method for determining a reasonable attorney fee under the Whistleblower Protection Act, §§ 10-16C-1 through 10-16C-6 NMSA 1978, is by applying the lodestar criteria, which include the time and labor required, the novelty and difficulty of the questions involved and skill required, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the time limitations imposed by the client or by the circumstances, and the experience, reputation and ability of the lawyer or lawyers performing the services. Maestas v. Town of Taos, 2020-NMCA-027, cert. granted.
Plaintiff was entitled to an award of attorney fees and costs. — Where plaintiff brought a suit under the Whistleblower Protection Act (WPA§§ 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, and where the jury returned a verdict finding that the town violated the WPA but did not award any damages to plaintiff, the district court erred in denying plaintiff an award of attorney fees and costs because the plain language of this section mandates an award of attorney fees and costs when a public employer is found to have violated the provisions of the WPA. Maestas v. Town of Taos, 2020-NMCA-027, cert. granted.
The district court did not err in awarding costs in whistleblower lawsuit. — Where plaintiff brought a suit under the Whistleblower Protection Act (WPA), §§ 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, and where prior to trial, the town tendered a $10,000 offer of settlement, which plaintiff did not accept, and where the jury returned a verdict finding that the town violated the WPA but did not award any damages to plaintiff, the district court did not err in awarding litigation costs to the town because plaintiff rejected the town's offer of settlement, which exceeded plaintiff's award of zero damages. Maestas v. Town of Taos, 2020-NMCA-027, cert. granted.
When discharge resulted from unlawful motives, plaintiff is presumed to be entitled to reinstatement. — 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, and where the jury concluded that NNMC violated the WPA and found by special verdict form that plaintiff had communicated to defendant about the occurrence of an improper act, that there was a reasonable basis in fact for the improper act, and that defendant retaliated against plaintiff because of a communication about that improper act, the trial court did not err by ordering NNMC to reinstate plaintiff, because reinstatement offers the most likely means of making a plaintiff whole by allowing her to continue her career as if the employer's unlawful action had not occurred. Moreover, reinstatement deters violations of the WPA. Velasquez v. Regents of Northern N.M. Coll., 2021-NMCA-007, cert. denied.
Plaintiff was entitled to back pay for defendant's retaliatory refusal to renew her contract. — 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, and where the jury concluded that NNMC violated the WPA and found by special verdict form that plaintiff had communicated to defendant about the occurrence of an improper act, that there was a reasonable basis in fact for the improper act, and that defendant retaliated against plaintiff because of a communication about that improper act, the trial court did not err in ordering backpay for retaliatory refusal to renew plaintiff's contract, because the WPA expressly authorizes an award when, as the jury found in this case, an employer retaliates by refusing to renew an employee's contract. Nothing in the WPA suggests that whether the employment relationship is contractual has any bearing on the statute's application, and the fact that contract employees are included in the WPA's definition of "public employee" suggests that the legislature intended for contract employees to enjoy the same protection against retaliatory action that at-will employees enjoy. Velasquez v. Regents of Northern N.M. Coll., 2021-NMCA-007, cert. denied.
Legislature waived sovereign immunity for post-judgment interest. — 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, and where the jury concluded that NNMC violated the WPA and found by special verdict form that plaintiff had communicated to defendant about the occurrence of an improper act, that there was a reasonable basis in fact for the improper act, and that defendant retaliated against plaintiff because of a communication about that improper act, and where the jury awarded plaintiff $239,000 in backpay and $180,000 to compensate her for emotional distress, the trial court erred in denying plaintiff's motion for post-judgment interest, because by explicitly making public employers liable for interest on back pay in this section, the legislature waived sovereign immunity for post-judgment interest pursuant to NMSA 1978, § 56-8-4(D). Velasquez v. Regents of Northern N.M. Coll., 2021-NMCA-007, cert. denied.

Structure 2021 New Mexico Statutes