FILED IN MY OFFICE DISTRICT COURT CLERK 3/14/2014 12:31:38 PM STATE OF NEW MEXICO STEPHEN T. COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT Case No.: D-101-CV-2014-00359 A. KURT SAENZ, and I BRENT M. EASTWOOD, Plaintiffs, V. NEW MEXICO ECONOMIC DEVELOPMENT DEPARTMENT, JONATHON BARELA, CABINET SECRETARY, in his of?cial capacity, and BARBARA G. BRAZIL, DEPUTY CABINET SECRETARY, in her official capacity, Defendants. ANSWER TO COMPLAINT COME NOW the Defendants, New Mexico Economic Development Department, Jonathon Barela, and Barbara G. Brazil, by and through their counsel of record, SaucedoChavez, P.C., and submit their Answer to the Plaintiff? Complaint. PARTIES, JURISDICTION and VENUE 1. The Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in the first sentence of paragraph 1 of the Complaint and therefore deny the allegations. Defendants admit that Saenz was hired as Administrative Services Division Director for the New Mexico Economic Development Department. Defendants deny that Saenz was demoted without cause or reason and deny that he was wrongfully terminated. Defendants deny all remaining allegations within paragaph 1 of the Complaint. 2. The Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in the first sentence of paragraph 2 of the Complaint and therefore deny the allegations. Defendants admit that Eastwood was an employee of the New Mexico Economic Development Department and held the position of Division Director of International Trade, Director of Business Advocacy Of?ce. Defendants deny that Eastwood was wrongfully terminated. Defendants deny all remaining allegations within paragraph 2 of the Complaint. 3. Defendants admit that the New Mexico Economic Development Department is a governmental entity of the State of New Mexico and Saenz and Eastwood worked in the Department. Because the remaining allegations are vague, the Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 3 of the Complaint and therefore deny the allegations. 4. Defendants admit that Barela is a resident of the County of of New Mexico. Because the remaining allegations are legal conclusions, the Defendants are without suf?cient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 4 of the Complaint and therefore deny the allegations. 5. Defendants admit that Brazil is a resident of the County of Bernalillo, State of New Mexico. Because the remaining allegations are legal conclusions, the Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 5 of the Complaint and therefore deny the allegations. 6. Because the allegations set forth in paragraph 6 of the Complaint are legal conclusions, the Defendants are without suf?cient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 6 of the Complaint and therefore deny the allegations. 7. Defendants deny that Saenz and Eastwood are entitled to damages. 8. Because the allegations set forth in paragraph 8 of the Complaint are legal conclusions, the Defendants are without sufficient information to form a belief as to the truth or falsity of theallegations set forth in paragraph 8 of the Complaint and therefore deny the allegations. 9. Defendants admit that Saenz was an exempt employee and was terminated. Defendants are without suf?eient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 9 of the Complaint and therefore deny the allegations. 10. Defendants admit that Eastwood was an exempt employee and was terminated. Defendants are Without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 10 of the Complaint and therefore deny the allegations. II. FACTS COMMON TO ALL COUNTS 1. The Defendants incorporate by reference the foregoing responses. Please note that on page 3 of the Complaint, the paragraphs go from number 10 to number I and continue there from. 2. Defendants admit the allegation set forth in paragraph 2 of the Complaint. 3. Defendants admit the allegation set forth in paragraph 3 of the Complaint. 4. Defendants deny that Saenz and Eastwood were terminated to protect personal interest or to promote financial gains. Defendants are without suf?eient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 4 of the Complaint and therefore deny the allegations. 5. Defendants deny the second sentence of paragraph 5 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 5 of the Complaint and therefore deny the allegations. 6. Defendants are without suf?cient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 6 of the Complaint and therefore deny the allegations. 7. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 7 of the Complaint and therefore deny the allegations. 8. Defendants deny that they conspired as alleged in paragraph 8 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 8 of the Complaint and therefore deny the allegations. 9. Defendants are without sufficient information to fonn a belief as to the truth or falsity of the allegations set forth in paragraph 9 of the Complaint and therefore deny the allegations. 10. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 10 of the Complaint and therefore deny the allegations. 11. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 11 of the Complaint and therefore deny the allegations. 12. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 12 of the Complaint and therefore deny the allegations. 13. Defendants deny a procurement violation as described in paragraph 13 of the ?Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 13 of the Complaint and therefore deny the allegations. 14. Defendants deny a procurement violation as described in paragraph 14 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 14 of the Complaint and therefore deny the allegations. 15. Defendants deny a procurement violation as described in paragraph 15 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 15 of the Complaint and therefore deny the allegations. 16. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 16 of the Complaint and therefore deny the allegations. 17. Defendants deny a procurement violation and email instructions as described in paragraph 17 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 17 of the Complaint and therefore deny the allegations. 18. Defendants deny the Saenz signatures as described in paragraph 18 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 18 of the Complaint and therefore deny the allegations. 19. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 19 of the Complaint and therefore deny the allegations. 20. Defendants deny that Eastwood blew the whistle on any legitimate issue. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 20 of the Complaint and therefore deny the allegations. 21. Defendants deny that Eastwood requested an investigation on any legitimate issue. Defendants are without suf?cient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 21 of the Complaint and therefore deny the allegations. 22. Defendants deny the spaceport allegations set forth in paragraph 22 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 22 of the Complaint and therefore deny the allegations. 23. Defendants deny the spaceport allegations set forth in paragraph 23 of the Complaint. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 23 of the Complaint and therefore deny the allegations. 24." Defendants deny the spaceport allegations set forth in paragraph 24 of -the Complaint. Defendants are Without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 24 of the Complaint and therefore deny the allegations. 25. Defendants deny that they retaliated against Eastwood. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 25 of the Complaint and therefore deny the allegations. 26. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 26 of the Complaint and therefore deny the allegations. 27. Defendants deny the allegations set forth in paragraph 27 of the Complaint. 28. Defendants deny the spaceport allegations set forth in paragraph 28 of the Complaint and the allegations that Brazil attacked Saenz. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 28 of the Complaint and therefore deny the allegations. 29. Defendants deny the allegations regarding Saenz?s actions. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 29 of the Complaint and therefore deny the allegations. 30. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 30 of the Complaint and therefore deny the allegations. 31. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 31 of the Complaint and therefore deny the allegations. 32. Defendants deny the allegations set forth in paragraph 32 of the Complaint. 33. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 33 of the Complaint and therefore deny the allegations. 34. Defendants are without suff1cient'information to form a belief as to the truth or falsity of the allegations set forth in paragraph 34 of the Complaint and therefore deny the allegations. 35. Defendants are without sufficient information to fonn a belief as to the truth or falsity of the allegations set forth in paragraph 35 of the Complaint and therefore deny the allegations. 36. Defendants deny the allegations set forth in paragraph 36 of the Complaint. 37. Defendants deny that Barela retaliated against Eastwood. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 37 of the Complaint and therefore deny the allegations. 38. Defendants deny the allegations set forth in paragraph 38 of the Complaint. 39. Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations set forth in paragraph 39 of the Complaint and therefore deny the allegations. 40. Defendants deny that Eastwood made whistleblowing disclosures. Defendants admit that New Mexico State police were present to oversee Eastwood remove his belongings. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 40 of the Complaint and therefore deny the allegations. 41. Defendants deny the allegations set forth in paragraph 41 of the Complaint. 42. Defendants admit that New Mexico State police were present to oversee Eastwood remove his belongings. Defendants are without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 42 of the Complaint and therefore deny the allegations. 43. Defendants deny that Barela retaliated against Eastwood. Defendants are Without sufficient information to form a belief as to the truth or falsity of the remaining allegations set forth in paragraph 43 of the Complaint and therefore deny the allegations. COUNT I VIOLATION OF THE NEW NLEXICO WHISTLEBLOWER ACT 44. The Defendants incorporate by reference the foregoing responses. 45. Defendants deny the allegations set forth in paragraph 45 of the Complaint. 46. Defendants deny the allegations set forth in paragraph 46 of the Complaint. 47. Defendants deny the allegations set forth in paragraph 47 of the Complaint. COUNT II VIOLATION OF THE. FRAUD AGAINST TAXPAYERS ACT 48. The Defendants incorporate by reference the foregoing responses. 49. Defendants deny the allegations set forth in paragraph 51 (sic) of the Complaint. 50. Defendants deny the allegations set forth in paragraph 52 (sic) of the Complaint. 51. Defendants deny the allegations set forth in paragraph 53 (sic) of the Complaint. 52. Defendants deny the allegations set forth in paragraph 54 (sic) of the Complaint. 53. Defendants deny the allegations set forth in paragraph 48 (sic) of the Complaint. 54. Defendants deny all allegations not speci?cally admitted herein. 55. Defendants deny that Plaintiffs are entitled to damages. AFFIRNIATIVE DEFENSES . The Complaint fails to state a claim upon which relief may be granted against each defendant. . Plaintiffs? claim brought under the Whistleblower Protection Act is barred because Plaintiff failed to exhaust administrative remedies under the State Personnel Act. . Plaintiffs? work performance and actions were the cause for the Plaintiffs? respective dismissals and, therefore, they are not entitled to the relief sought under the Whistleblower Protection Act. . The Whistleblower Protection Act is not enforceable as asserted and applied to Plaintiffs? claims here as the claims are vague and ambiguous, or Vague and ambiguous in the application here. . The allegations made by Plaintiff are not within the scope of the public protections of the Whistleblower Protection Act as contemplated and, therefore, are not a cognizable claim. 10 10. ll. 12. Plaintiffs are barred from bringing claims pursuant to the Whistleblower Protection Act based upon the allegations contained within the Complaint because of their respective positions within the New Mexico Economic Development Department. Plaintiffs are barred from bringing claims pursuant to the Fraud Against Taxpayers Act based upon the allegations contained within the Complaint because of their respective positions within the New Mexico Economic Development Department. Any actions of the Defendants alleged in the Plaintiffs? Complaint were and are otherwise justified, privileged and based upon legitimate, non?discrirninatory and non- retaliatory reasons in the furtherance of the public interest. All actions taken with regard to the Plaintiffs by Defendants would have been taken in any event based on after?acquired evidence, and Plaintiffs? Complaint is either entirely barred or the alleged damages should be reduced accordingly. Defendants are entitled to reimbursement or set-off for any monies that it has paid to Plaintiffs as a result of any unemployment insurance claim. Plaintiffs failed to mitigate their respective damages and are therefore barred from recovery in whole or part. Defendants reserve the right to raise such other and further defenses as may be discovered in the course of discovery and further proceedings. WHEREFORE, the Defendants respectfully request an Order of this Court: Dismissing the Complaint with prejudice; Awarding the Defendants costs and attorney?s fees; and For such other and further relief on behalf of the Defendants as the Court deems just and proper. ll I hereby certify that the foregoing was ?led electronically through the EFS system on March 14, 2014 which caused counsel of record to be served by electronic means: Nathaniel V. Thompkins New Mexico Firm, LLC 103 St. Francis Drive, Unit A Santa Fe, NM 87501 (505) 988-9750 By: Christopher T. Saucedo Christopher T. Saucedo Respectfully submitted, SAUCEDOCHAVEZ, P.C. By: Christopher T. Saucedo Christopher T. Saucedo Post Of?ce Box l886 Albuquerque, NM 87103-1886 T: (505)338-3945 Email: csaucedo?bsaucedochaveacom Attorneys? for Defendants