3RD JUDICIAL DISTRICT COURT DONA ANA COUNTY NM FILED IN MY OFFICE 9/11/2017 9:53:11 AN DAVID S. BORUNDA Josephina Gomez STATE OF NEW MEXICO COUNTY OF DONA ANA THIRD JUDICIAL DISTRICT MARYLOU BONACCI, Plaintiff, D-307-CV-2017-02790 Arrieta, Manuel | STATE OF NEW MEXICO, MARK D'ANTONIO, THIRD JUDICIAL DISTRICT ATTORNEY STATE OF NEW MEXICO, Defendants. PLAINTIFF'S ORIGINAL COMPLAINT FOR DEFENDANTS' VIOLATIONS OF THE NEW MEXICO WHISTLEBLOWER PROTECTION ACT with SIX-PERSON JURY DEMAND Plaintiff complains of defendants’ violations of the New Mexico Whistleblower Protection Act Parties 1, Plaintiff Marylou Bonacci is an individual and at all times relevant to this litigation was employed by defendant State of New Mexico, Mark D'Antonio, and/or Third Judicial District Attorney State of New Mexico. Plaintiff is a Citizen of the State of New Mexico. Plaintiff is a public employee within the meaning of the New Mexico Whistleblower Protection Act, codified at NM. Stat, Ann. § 10-16C-1, et seq. ("NMWPA") 2. Defendant State of New Mexico may be served with process by serving the Govemor Susanna Martinez, Office of the Governor, 490 Old Santa Fe Trail, Room 400, Santa Fe, New Mexico 87501 and the New Mexico Attorney General Hector Balderas, 408 Galisteo Street, Santa Fe, New Mexico 87501. This defendant is a public employer within the meaning of the NMWPA. 3. Defendant Mark D'Antonio may be served with process by serving Mark D'Antonio, 845 1North Motel Blvd., Second Floor, Suite D, Las Cruces, New Mexico 88007 and the New Mexico Attorney Hector Balderas, 408 Galisteo Street, Santa Fe, New Mexico 87501. Defendant D'Antonio is a Citizen of the State of New Mexico. This defendant is a public employer within are only against him the meaning of the NMWPA, Plaintiff's NMWPA claims against D'Antoni in his representative capaci 4, Defendant Third Judicial District Attorney State of New Mexico may be served with process by serving District Attorney Mark D'Antonio, 845 North Motel Blvd., Second Floor, Suite D, Las Cruces, New Mexico 88007 and the New Mexico Attorney General Hector Balderas, 408 Galisteo Street, Santa Fe, New Mexico 87501. This defendant is a public employer within the meaning of the NMWPA. Jurisdiction and Venue 5. Venue is proper in Dona Ana County, New Mexico, because this is a county where defendants do business, where the discriminatory practices occurred, and where the acts and omissions complained about occurred. The NMWPA confers jurisdiction in the State of New Mexico, County of Dona Ana, Third Judicial District Court. Facts 6. Plaintiff is a whistleblower. At all relevant times, Plaintiff communicated to defendants and third parties information about actions or failures to act that she believes in good faith constitute unlawful and improper acts. Plaintif? also provided information to public bodies and testified to a public body as part of an investigation, hearing, and inquiry into unlawful and improper acts, Plaintiff even objected to and refused to participate in certain activities, policies, and practices that constituted unlawful and improper acts.7. Before D’ Antonio was elected as the Third Judicial District Attorney for the State of New Mexico, D’ Antonio employed Plaintiff. Pursuant to his election, in January 2013, defendants hired Plaintitt, 8, Within 30 days, Plaintiff earned a raise. 9, In June 2013, defendants promoted Plaintiff to District Office Manager. 10. Starting soon after her hire, Plaintiff communicated to D’ Antonio that she believed his meetings with criminal defendants and their family members alone at his office without attorneys present constituted unlawful and improper acts. 11. In March 2014, defendants formally appraised Plaintiff's performance and Plaintiff was awarded with a rating of Exceeds Expectations and a raise. 12. In June 2014 defendants provided Plaintiff with another raise. 13. In about October 2014 ot November 2014 defendants decided to hire a Chief Deputy for the office 14. Plaintiff communicated to defendants that defendants hiring this Chief Deputy for the office constituted unlawful and improper acts because the position required an attorney to be licensed by the State of New Mexico and in good standing with other admitted bars. This person selected was not a licensed New Mexico attorney and not in good standing with another bar. 15. In February 2015, defendants hired the unlicensed attorney not in good standing as the Chief Deputy 16. Plaintiff then communicated to defendants that this Chief Deputy treated all subordinate staff as his personal staff, not as employees of the State of New Mexico 17. Plaintiff also communicated to defendants and continued to communicate to defendants until her later discharge that this Chief Deputy discriminated against her and other females because 3of their sex, female, and this was a continuing action. 18. Within the first month of his ring, defendants attempted to give the new Chief Deputy a raise, however, there were difficulties because he was unlicensed and not in good standing, Yet, Plaintiff was disciplined. Plaintiff communicated this to defendants, 19. There was a great deal of staff discord because of this Deputy Chief. Plaintiff communicated this to defendants. 20. In February 2015, a female attorney was promoted with a male attorney. Defendants discriminated against the female by not paying her the same salary as the male. Defendants were also discriminating against Plaintiff because she is female. Plaintiff communicated this to defendants, 21. In March 2015, defendants evaluated Plaintifi’s performance and she exceeded expectations 22. In March 2015, Plaintiff communicated about the Deputy Chief's discriminatory conduct. 23. In March 2015, Plaintiff communicated to defendants about an Assistant District Attorney appearing in Court intoxicated, the second occasion this Assistant District Attorney arrived at work intoxicated, and defendants’ failures to discipline this attorney, Plaintiff communicated to defendants simply sending the intoxicated Assistant District Attorney home was a f and not the proper act. 24, From January 2015 through April 2015, Plaintiff further communicated to defendants of discrimination against females, including that specifically from a supervisor. 25. D’ Antonio discussed his financial problems with Plaintiff. 26. D’Antonio sought loans of money from Plaintiff. Sometimes he paid Plaintiff back the money he borrowed from her.27. D’Antonio requested Plaintiff secure loans from Plaintiff's friends. 28. A family member of Plaintiffs friend was arrested for drug possession 29. In March 2015, D’Antonio asked Plaintiff to secure a loan from this family, and he indicated that in exchange for the loan, he would dismiss the criminal charges against the defendant family member. 30. D’Antonio required Plaintiff to attend an arraignment, as well as communicate with defense counsel of the charged family member, so that D’ Antonio could secure money in exchange for the dismissal of the charges against the family member. 31. Plaintiff communicated D’ Antonio's request to defendants 32. Plaintiff communicated D’ Antonio’s request to a third party, 33. As a result of Plaintiff communicating D’Antonio’s request to a third party, the FBI initiated an investigation into D’ Antonio, including this specific instance of offering to dismiss criminal charges in exchange for money, as well as him actually dismissing criminal defendants in exchange for money 34. Plaintiff provided information to the FBI about D’Antonio’s request and other unlawful and improper acts. 35. In April 2015, in retaliation for Plaintiff's communications, not yet those about D’Antonio’s request for money to dismiss the criminal charges against the defendant family member, defendants offered Plaintiff a discharge or a demotion and Plaintiff chose the demotion. Defendants’ pretextual basis was Plaintiff"s performance was not satisfactory, yet when Plaintiff asked why, defendants could offer Plaintiff no basis. 36. Plaintiff communicated to defendants about the heavy, unmanageable, out of control caseloads and mismanagement of the conditions of the office. Plaintiff communicated that thesetwo major problems were issues of public concern and safety because they were causing harm to the safety of the public and other personnel 37. In further retaliation, defendants further subjected Plaintiff to a hostile work environment by unreasonably interfering with Plaintiff's work performance and creating an intimidating, hostile, and offensive working environment 38. In further retaliation, defendants scrutinized Plaintiff's work performance to an unfair degree. 39. In August 2015, Plaintiff communicated to defendants of their improper handling, their falsification, their perjury, by defendants and their handling of a child sex case, including defendants’ refusal to produce evidence material to the defendant. 40. In August 2015, Plaintiff communicated to defendants about the necessity to hire an attorney 41. In August 2015, Plaintiff communicated to defendants about the public corruption investigation 42, In August 2015, Plaintiff further communicated to defendants of the hostile work environment 43. In August 2015, D’Antonio becomes aware of Plaintiff's involvement with the FBI investigation, 44, In August 2015, in further retaliation, defendants pretextually disciplined Plaintiff that ied Plaintiff culminated in her discharge, colloquially saying, padding her file. Defendants dis for the activities D’ Antonio required Plaintiff to perform as part of his dismissal of the family member criminal case for money. Defendants disciplined Plaintiff for other employees’ mistakes Defendants accused Plaintiff of infractions that did not occur. Defendants unfairly scrutinized 6Plaintiff's performance. Defendants disciplined Plaintiff’ for historical events that were inconsequential events at the time, Defendants disciplined Plaintiff upon untrue allegations, issued disciplinary action forms, suspended her for one week, and even attempted a six-week performance jorance of improvement plan, which defendants could not even accomplish for their own igi Plaintiff's job duties. 45. In September 2015, a supervisor was sexually harassing interns. 46. On September 11, 2015, Plaintiff communicated to defendants about the supervisor’ s sexual harassment, 47. On September 14, 2015, defendants retaliated against Plaintiff and discharged her, the pretextual reason Plaintiff returned to work 9 minutes late on September 11, 2015. 48. Throughout her employment with defendants, Plaintiff communicated to defendants of D’ Antonio: retaining incompetent employees solely as political favors; attempting to bar political opponents into the District Attorney's office; improperly using funds, including those designated for expert witnesses; discriminating against females; and even showing of sexual videos of young men dressed like women and his discussing of his own similar experiences in Japan COUNTI. VIOLATIONS OF THE NEW MEXICO WHISTLEBLOWER PROTECTION ACT 49. The above described conduct of defendants violated the NMWPA 50. Defendants took retaliatory action against Plaintiff because Plaintiff communicated to defendants and/or a third parties information about an action or a failure to act that Plaintift believes in good faith constitute an unlawful and/or improper act. 51. Defendants took retaliatory action against Plaintiff because Plaintiff provided information to and/or testified before a public body as part of an investigation, hearing or inquiry into an 7unlawful and/or improper act 52. Defendants took retaliatory action against Plaintiff because Plaintiff objected to and/or refused to participate in an activity, policy, and/or practice that constitutes an unlawful and/or improper act COUNT II VIOLATIONS OF THE NEW MEXICO WHISTLEBLOWER PROTECTION ACT. HOSTILE WORK ENVIRONMENT 53. The above described conduct of defendants violated the NMWPA. 54. Defendants’ retaliation as described above created and subjected Plaintiff to a hostile work environment, the offensive conduct became so severe and pervasive that it altered the conditions of Plaintiff's employment in such a manner that the workplace was transformed into a hostile and abusive environment for Plaintiff looking at the totality of the circumstances, including the frequency of the discriminatory conduet; its severity; it being physically threatening, it being humiliating, and it interfering with Plaintiff's work performance. Damages 55. Asa direct and proximate result of defendants’ conduct against Plaintiff'as described above, Plaintiff suffered injuries and damages. Plaintiff's damages include in the past and the future: lost wages and benefits; employment opportunities, lost income; loss of earning capacity, mental anguish, emotional pain and suffering, inconvenience, loss of enjoyment of life, and other nonpecuniary losses. PlaintifT is entitled to two times her back pay with interest, actual damages, and special damages. Plaintiff further suffered additional consequential damages. Plaintiff asks that the jury set the amount of the compensatory damagesAttorney's Fees and Expert Fees 56. Plaintiffs entitled to attorney’s fees as allowed by the NMWPA and expert fees. Jury Demand $7. Plaintiff demand a six-person jury trial Prayer 58. For these reasons, Plaintiff asks that defendants be cited to appear and answer, and, on final trial, that Plaintiff have judgment against defendants for the following: a, b, equity, general damages; special damages, interest as provided by law; attorney’s fees and expert fees, court costs and all costs of suit; such other and further relief to which Plaintiffs may be justly entitled at law andRespectfully submitted, LAW FIRM OF DANIELA LABINOTI, P.C. 707 Myrtle El Paso, Texas 79901 (915) 581-4600 (915) 581-4605 Daniela@LabinotiLaw.com s/ Daniela Labinoti DANIELA LABINOTI New Mexico State Bar No. 27422 BRETT DUKE, P.C 4157 Rio Bravo El Paso, Texas 79902 (915) 875-0003 (915) 875-0004 (facsimile) brettduke@brettduke.com s/ Brett Duke Brett Duke New Mexico Bar No. 14633 10