Case 1:10-cv-00315 Document 1 Filed 04/05/10 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civil Action No. ______________

LESLEY J. LOWE, ESQ., MARY H. SMITH, COMPLAINT FOR CIVIL

ESQ., and, MELANIE CARVER, ESQ. RIGHTS VIOLATIONS

Plaintiffs,

vs.

STATE OF NEW MEXICO ex rel. GARY K.

KING, ATTORNEY GENERAL,

Defendant.
Jury Trial Demanded

1. The New Mexico Attorney General’s Office (“AGO”) pays female attorneys less than

it pays similarly situated male attorneys. Since at least 1987, the AGO has based pay on a system

of discrimination resulting in a historical pay disparity between genders. In this complaint,

Plaintiffs Lesley J. Lowe, Esq., Melanie Carver, Esq., and Mary H. Smith, Esq. challenge their

employer’s discriminatory practices. Plaintiffs are New Mexico Assistant Attorneys General. All

three are highly experienced at the work they do. They are dedicated professionals and the AGO

values their work. Yet all three are paid less than the similarly situated men at the AGO.

Plaintiffs have documented gender disparity and the AGO has neither rectified the pay disparity

nor implemented a system to prevent gender discrimination.

2. Plaintiffs Lowe and Smith are residents of Bernalillo County, New Mexico.

3. Plaintiff Carver is a resident of Sandoval County, New Mexico.

4. Defendant State of New Mexico acts through its duly elected Attorney General, Gary

K. King.
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5. This Court has personal jurisdiction over the parties.

6. This Court is the proper venue for this action.

7. At all times related to this action, Defendant has employed more than fifteen

employees.

8. This action is brought under the Equal Pay Act (29 U.S.C. § 206(d) (2009)), Title VII

of the Civil Rights Act of 1964 as amended (42 U.S.C. §2000e (2008)), the New Mexico Human

Rights Act (N.M. Stat. Ann. § 28-1-1 to 28-1-14 (2005)), and 42 U.S.C. § 1983.

9. On January 7, 2010 the United States Equal Employment Opportunity Commission

issued Notices of Right to Sue to Plaintiffs.

10. Plaintiffs have exhausted all conditions precedent to the filing of this lawsuit.

11. Ms. Lowe graduated from the University of North Dakota School of Law in 1984.

12. The AGO hired Ms. Lowe on November 24, 1987.

13. During the period she has been employed by the AGO, Ms. Lowe has been formally

evaluated six times.

14. All of Ms. Lowe’s formal evaluations by the AGO have been excellent.

15. Ms. Lowe’s job performance improved so much in 2008 and 2009 that she was

recommended for a merit pay increase.

16. In August 2008, after numerous requests by Ms. Lowe, her classification was changed

from Attorney II (5-9 years experience) to Attorney III (10 years or more experience), although

Ms. Lowe had already been working for the AGO for nearly twenty-one years.

17. Ms. Lowe did not receive a raise when she was reclassified as Attorney III, which is

the usual procedure in the AGO..

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18. The AGO hired a male attorney as an Attorney III although he only had six years of

experience.

19. At the time Plaintiffs filed their Pay Equity Report with the Attorney General, Ms.

Lowe's salary was $71,383.52.

20. The average salaries of male attorneys with the same or less experience who were

being paid more than Ms. Lowe, was $76,187.97, with a difference in salaries of $4,804.

21. A male attorney with one more year of experience than Ms. Lowe was paid

$77,238.72, as compared to her salary of $71,383.52, with a difference in salaries of $5,855.20.

22. Ms. Carver graduated from Golden Gate University School of Law in 1983.

23. Ms. Carver has more than twenty-five years experience as an attorney.

24. The AGO hired Ms. Carver on July 16, 2007.

25. During the period she has been employed by the AGO, Ms. Carver has never been

formally evaluated.

26. At the time Plaintiffs put the AGO on notice of their claim, Ms. Carver earned

$70,000.32 and a male attorney with comparable experience was being paid $77,238.72.

27. Ms. Carver was hired on July 16, 2007 at $70,000.32 per year and a male attorney

with six years experience was hired the same year at the same rate of pay.

28. Six other male attorneys, with 3-14 years less experience than Ms. Carver, were being

paid at higher salaries than she.

29. Ms. Smith graduated from the University of New Mexico School of Law in 1986.

30. The AGO hired Ms. Smith on July 24, 1999.

31. During the period she has been employed by the AGO, Ms. Smith has been formally

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evaluated four times.

32. All of Ms. Smith’s formal evaluations by the AGO have been excellent.

33. The AGO has not formally evaluated Ms. Smith since 2003.

34. At the time Plaintiffs put the AGO on notice of their claim, Ms. Smith earned

$71,718.40 and two male attorneys with comparable experience were being paid an average of

$78,042.64, $6,324.24 more than Ms. Smith.

35. Four other male attorneys, with 1-8 years less experience than Ms. Smith, were being

paid an average of $3,497.24 more than she.

36. On September 5, 2005 and twice thereafter, Plaintiffs met with Attorney General

King regarding pay inequity and they presented him with documentation of the historical gender

disparity.

37. The Attorney General has denied the gender disparity while at the same time

assigning a raise to Plaintiffs to “address the alleged pay equity disparity.”

38. The raise did not bring Plaintiffs into parity with similarly situated male attorneys and

there has been no attempt to create an objective pay system to avoid arbitrary and discriminatory

salary allocations.

39. Pay disparity has been an issue at the AGO since at least 1987, when Plaintiff Lowe

was hired at a much lower rate than a male attorney with one year less experience. Since that

time, Plaintiff Lowe and most female attorneys in the office have been paid at lower rates than

male counterparts and had been denied the same opportunities for advancement.

40. Since at least 1987, the AGO has purported to have a classification system listing

attorneys as Attorney I, Attorney II and Attorney III, based on years of experience although the

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system has not correlated to salaries or accurately reflected experience levels.

41. Other than this informal classification, there is no objective system of salary

assignment at the AGO, resulting in arbitrary and capricious salary assignments and the gender

disparity that has historically characterized pay at the office.

42. The AGO has not had job descriptions for attorneys, has not used a regular evaluation

processes that could support merit pay increases, and has not implemented guidelines for

awarding promotions.

43. While the current administration inherited these discriminatory practices, it has

refused to change and has adopted and continued the discriminatory practices.

44. Despite repeated notice of the need for change, the AGO has not implemented an

objective system of evaluation and pay to stop the gender disparity.

COUNT I:
EQUAL PAY ACT

45. The preceding allegations are incorporated by reference.

46. Defendant, the employer of the Plaintiffs, has repeatedly and willfully violated, and is

willfully violating, 29 U.S.C. § 206(d) (2009) by discriminating between employees on the basis

of sex by paying wages to male employees for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and which are performed under similar working

conditions.

47. After the meeting with Attorney General King on September 5, 2008 regarding pay

inequity, Defendant has retaliated against Ms. Carver by greatly increasing her work load.

48. A judgment granting damages in the amount of the difference between the wages

actually received by the Plaintiffs and the wages paid to male employees for equal work within

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the meaning of the Equal Pay Act together with an additional equal amount as liquidated

damages is specifically authorized by § 16(b) and § 6(d)(3) of the Act.

WHEREFORE Plaintiffs pray for a judgment:

a. Ordering the Defendant to pay the Plaintiffs an amount equal to the difference between

the wages actually received and the wages paid to male employees performing equal work within

the meaning of § 6(d) of the Act and interest thereon together with an additional equal amount as

liquidated damages.

b. Ordering the Defendant to pay Plaintiffs’ costs in the action;

c. Ordering the Defendant to pay reasonable attorney’s fees;

d. Awarding pre and postjudgment interest;

e. Providing such other additional relief as to the Court appears just and equitable.

COUNT II:
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AS AMENDED

49. The preceding allegations are incorporated by reference.

50. Defendant has discriminated against Plaintiffs in terms and conditions of employment

on the basis of sex in violation of Title VII.

51. After the meeting with Attorney General King on September 5, 2008 regarding pay

inequity, Defendant has retaliated against Ms. Carver by greatly increasing her work load.

52. Plaintiffs are now suffering and will continue to suffer irreparable injury and

monetary damages as a result of Defendant’s discriminatory practices until this Court grants

relief.

WHEREFORE Plaintiffs pray for a judgment:

a. Declaring that the acts and practices complained of herein are in violation of Title VII;

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b. Enjoining and permanently restraining these violations of Title VII;

c. Directing Defendant to take such affirmative action as is necessary to ensure that the

effects of these unlawful employment practices are eliminated and do not continue to affect

Plaintiffs’ employment opportunities;

d. Directing Defendant to place Plaintiffs in the position they would have occupied but

for Defendant’s discriminatory treatment of them, and make them whole for all earnings they

would have received but for Defendant’s discriminatory treatment, including wages, pension, and

other lost benefits;

e. Awarding Plaintiffs the costs of this action together with reasonable attorney’s fees, as

provided by § 706(k) of Title VII;

f. Awarding pre and postjudgment interest;

g. Granting such other and further relief as this Court deems necessary and proper.

COUNT III:
NEW MEXICO HUMAN RIGHTS ACT

53. The preceding allegations are incorporated by reference.

54. Defendant has discriminated against Plaintiffs in terms and conditions of employment

on the basis of sex in violation of the New Mexico Human Rights Act.

55. After the meeting with Attorney General King on September 5, 2008 regarding pay

inequity, Defendant has retaliated against Ms. Carver by greatly increasing her work load.

56. Plaintiffs are now suffering and will continue to suffer irreparable injury and

monetary damages as a result of Defendant’s discriminatory practices until this Court grants

relief.

WHEREFORE Plaintiffs pray for a judgment:

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a. Declaring that the acts and practices complained of herein are in violation of the New

Mexico Human Rights Act;

b. Enjoining and permanently restraining these violations of the New Mexico Human

Rights Act;

c. Directing Defendant to take such affirmative action as is necessary to ensure that the

effects of these unlawful employment practices are eliminated and do not continue to affect

Plaintiffs’ employment opportunities;

d. Directing Defendant to place Plaintiffs in the position they would have occupied but

for Defendant’s discriminatory and treatment of them, and make them whole for all earnings they

would have received but for Defendant’s discriminatory treatment, including wages, pension, and

other lost benefits;

e. Awarding Plaintiffs the costs of this action together with reasonable attorney’s fees, as

provided by N.M. Stat. Ann. § 28-1-13(D) (2005);

f. Awarding pre and postjudgment interest;

g. Granting such other and further relief as this Court deems necessary and proper.

COUNT IV:
§ 1983

57. The preceding allegations are incorporated by reference.

58. Plaintiffs further aver that the above-described acts and omissions by Defendant

deprived Plaintiffs, under color of state law, of the rights, immunities and privileges secured to

Plaintiffs under the Constitution and laws of the United States of America, in violation of 42

U.S.C. § 1983.

59. Included among those rights of which Plaintiffs were deprived is the right to earn

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equal pay for equal work.

60. Plaintiffs were harmed and injured by said deprivation of their civil rights, for which

they are entitled to just and fair compensation in an amount to be determined at trial.

61. Defendant took no steps to prevent or correct the unlawful behavior despite repeated

demands, thereby acting so culpably as to constitute authorization and acquiescence.

WHEREFORE Plaintiffs ask for compensatory and punitive damages together with an

award of reasonable attorneys fees and costs and pre and postjudgment interest and an order

awarding Plaintiffs such other and further relief as this Court deems fit.

Respectfully submitted,

/s/ Daniel M. Faber

Daniel M. Faber
Counsel for Plaintiff
dan@danielfaber.com
4620C Jefferson Lane NE
Albuquerque, NM 87109
(505) 830-0405