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Gonzales v. New Mexico Department Of Health9/27/2000
utes prima facie evidence of disparate impact-that the distribution of earnings alone proves that a discriminatory practice must have existed.
The trial court did not err in refusing the jury instructions because Gonzales did not present sufficient evidence of disparate impact. She did not identify a facially neutral practice of LVMC or tie the earnings chart to any LVMC practice. See Ortega, 943 F. 2d at 1242. Additionally, statistical evidence offered in support of a claim of disparate impact "must cross a threshold of reliability before it can establish even a prima facie case of disparate impact." Id. at 1243 (quoted authority and quotation marks omitted). The earnings chart does not meet that threshold of reliability; it does not indicate the number of hours worked by each individual, their length of service on the hotline, their responsibilities on the hotline, or differing hourly rates of pay among the employees. Gonzales included herself on the chart as an Hispanic psychologist even though she did not work on the hotline during this period, which further distorted the alleged relationship between Hispanic participants and their earnings. Gonzales introduced no expert testimony to explain whether her statistics were demonstrative of discrimination. Thus, on their face, the statistics are of questionable merit. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651-53 (1989) (concluding that a prima facie case fails because of flawed statistics); Watson, 487 U.S. at 995 (stating that "statistical disparities must be sufficiently substantial that they raise an inference of causation").
Gonzales also proposed a jury instruction directed at Dr. Hernandez, based on dicta in Dominguez v. Stone, 97 N.M. 211, 213, 638 P.2d 423, 425 (Ct. App. 1991), stating that it was possible for a member of a minority group to practice discrimination against members of the same minority group. She argues that the trial court erred in refusing the instruction. Even assuming that the instruction contained a correct statement of the law, it must be supported by evidence introduced at trial. See Pittard, 101 N.M. at 727, 688 P.2d at 337. Gonzales does not cite to any evidence in the record that would have supported giving such an instruction.
E. Attorney's Fees
When the trial court entered a judgment for Gonzales for $170,000 in accordance with the jury's verdict, it also provided for costs and attorney's fees as provided by law. The trial court received affidavits and held a hearing on the matter of attorney's fees, after which it awarded Gonzales attorney's fees of $90,384 plus gross receipts tax and costs. The award reflected the fees and costs for pursuing the retaliation claim in district court but not for the discrimination claim because Gonzales had not prevailed on that issue. Gonzales had also requested attorney's fees for the representation she received in the HRC hearing, which the trial court refused. On appeal, Gonzales argues that the court erred by not awarding full attorney's fees for the district court litigation and by denying attorney's fees for the HRC legal representation.
The award of attorney's fees in this case is governed by Section 28-1-13(D) of the Human Rights Act: "In any action or proceeding under this section if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney's fees, and the state shall be liable the same as a private person." We review the award of attorney's fees for abuse of discretion. Lucero v. Aladdin Beauty Colleges, Inc., 117 N.M. 269, 271, 871 P.2d 365, 367 (1994). Analogous principles for addressing the award of attorney's fees may be found in federal civil
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