STATE OF NEW MEXICO
COUNTY OF RIO ARRIBA
FIRST JUDICIAL DISTRICT

No. _____________________________

YOLANDA GARCIA, LOYDA MARTINEZ
GLORIA A. BENNETT, Ph.D., and YVONNE
EBELACKER, on their own behalf and on behalf
of a class or classes of similarly situated persons;
HISPANIC ROUNDTABLE OF NEW MEXICO;
and UNIVERSITY PROFESSIONAL & TECHNICAL
EMPLOYEES CWA 9119 (AFL-CIO) LOCAL
UPTE-LOS ALAMOS,

                                                Plaintiffs,

vs.

REGENTS OF THE UNIVERSITY OF
CALIFORNIA; and G. PETER NANOS,
in his individual and official capacities,

                                                Defendants.

CLASS ACTION COMPLAINT FOR DAMAGES AND
DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF
THE EQUAL PAY ACT, THE NEW MEXICO HUMAN
RIGHTS ACT AND CONSTITUTIONAL RIGHTS

Plaintiffs, by and through their counsel, bring this Class Complaint for Damages and
Declaratory and Injunctive Relief for Violations of the Equal Pay Act, the New Mexico
Human Rights Act and Constitutional Rights against Defendants Regents of the University
of California and G. Peter Nanos. Plaintiffs allege against Defendants upon knowledge as to themselves and all matters of public record, and upon information and belief as to all other matters, as follows:

I.
PARTIES

1. Plaintiff Yolanda Garcia (AGarcia@) is a resident of Chimayo, County of Rio Arriba, State of New Mexico. Garcia is a female of Hispanic ancestry. She has been employed at Los Alamos National Laboratory (ALANL@) since May 1991. Garcia brings this action on her own behalf and as a representative of a class or classes of similarly situated persons.

2. Plaintiff Loyda Martinez (AMartinez@) is a resident of Santa Cruz, County of Rio Arriba, State of New Mexico. Martinez is a female of Hispanic ancestry. She has been employed at LANL since June 1976. Martinez brings this action on her own behalf and as a representative of a class or classes of similarly situated persons.

3. Plaintiff Gloria A. Bennett, Ph.D. (ABennett@) is a resident of Los Alamos, County of Los Alamos, State of New Mexico. Bennett is a female of Hispanic ancestry. She has been employed at LANL since October 1973. Bennett brings this action on her own behalf and as a representative of a class or classes of similarly situated persons.

4. Plaintiff Yvonne Ebelacker (AEbelacker@) is a resident of Santa Clara Pueblo, County of Rio Arriba, State of New Mexico. Ebelacker is a female of Native American and Hispanic ancestry. She has been employed at LANL since October 1973. Ebelacker brings this action on her own behalf and as a representative of a class or classes of similarly situated persons.

5. Plaintiff Hispanic Round Table of New Mexico (AHispanic Round Table@) was founded in the mid-1980s, as a consortium of 43 member organizations. It is an organization formed for the purpose of advocating for parity for Hispanics in employment and economic opportunity within the state of New Mexico, the defense of civil rights for Hispanics in New Mexico, and the elimination of discrimination against Hispanics in New Mexico in hiring, retention, promotion and salary. Many members of constituent organizations of the Hispanic Round Table, as well as the 2002-2003 Chairperson, and other officials are employees of LANL. The Hispanic Round Table has a special interest in discrimination against Hispanic employees at LANL and has been extensively involved, over the course of many years, in studying and exposing such discrimination, bringing such discrimination to the attention of LANL employees, the University of California, and the public, and vigorously advocating for remedial action. The Hispanic Round Table brings this action on behalf of its members and the members of the class.

6. University Professional & Technical Employees CWA 9119 (AFL-CIO) is a union of technical and professional employees at the University of California, including technical and professional employees working at LANL. The Union was founded in 1990 in order to benefit employees of the University of California and to safeguard those employees= rights in the workplace. Plaintiff University Professional & Technical Employees local Los Alamos chapter (AUPTEBLos Alamos@) brings this action on behalf of its members and the members of the class.

7. Defendant Regents of the University of California (AUniversity@) was at all times relevant to this action a legal entity organized and existing under the laws of the State of California, doing business in the State of New Mexico. Pursuant to a contract with the United States Department of Energy, the University was and is engaged in the operation and management of LANL. The University is an Aemployer@ within the meaning of the Equal Pay Act of 1963, as amended, 29 U.S.C. '' 206(d) et seq. The Regents of the University are sued in their official capacities.

8. Defendant University was, through its officials, agents, servants, and employees, involved in and responsible for the acts hereinafter alleged, including without limitation the development and implementation of all personnel policies, procedures and actions at LANL.

9. Defendant G. Peter Nanos (ANanos@) is employed by the University as the Director of LANL. He is the senior officer of LANL and as such, is responsible for implementation of all personnel policies, procedures and actions. He is sued in his official and individual capacities.

II.
CLASS ACTION ALLEGATIONS

10. This civil action is brought by Plaintiffs on their own behalf and on behalf of a class or classes of similarly situated persons, pursuant to Rule 23(B), NMRA 1998. The class for which Plaintiffs seek certification is defined as follows: all current, former and future females and/or Hispanics employed at LANL who were at any time, or are now, or will be during the course of this litigation, paid less than similarly situated male and/or non-Hispanic employees, or who have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to their gender and/or ethnicity, ancestry, race or national origin. Within this class are three subclasses:

(A) All current, former and future females employed at LANL who were at any time, or are now, or will be during the course of this litigation, paid less than similarly situated male employees, or who have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to their gender;

(B) All current, former and future Hispanics employed at LANL who were at any time, or are now, or will be during the course of this litigation, paid less than similarly situated non-Hispanic employees, or who have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to their ethnicity, ancestry, race or national origin; and

(C) All current, former and future Hispanic females employed at LANL who were at any time, or are now, or will be during the course of this litigation, paid less than similarly situated non-Hispanic female employees, or who have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to their gender and ethnicity, ancestry, race or national origin.

11. Plaintiffs Garcia, Martinez, Bennett, and Ebelacker are members of the class they seek to represent, and of all three subclasses, and have standing to bring this action because they are current female Hispanic employees of LANL, they have been paid less than similarly situated male and/or non-Hispanic employees, and they have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to their gender and/or ethnicity, ancestry, race or national origin.

12. Plaintiffs Hispanic Round Table and UPTEBLos Alamos are organizations whose purposes are devoted to advancing the interests of the class they seek to represent and they have standing to bring this action on behalf of the class.

13. Pursuant to Rule 23(B), NMRA 1998, Plaintiffs, individually and on behalf of the members of the class, seek such relief as is just and equitable, including but not limited to:

(i) Complete disclosure of all studies, reports, analysis, data, research protocols, contracts and other similar information within the possession, custody or control of the Defendants concerning, relating to or involving the discriminatory employment policies, practices and procedures complained of herein;

(ii) Judicial declaration that the employment policies, practices and procedures complained of herein are unlawful;

(iii) Issuance of a permanent injunction prohibiting Defendants from engaging in the discriminatory policies, practices and procedures complained of herein; and

(iv) Judgment for compensatory and punitive damages to the fullest extent allowable by law from the Defendants, jointly and severally, in favor of Plaintiffs and the members of the class for personal and economic injury, and deprivation of constitutional, statutory, and/or common law rights resulting from Defendants= discriminatory policies, practices and procedures.

14. Plaintiffs are unable to state precisely the size of the class. On information and belief, the total work force at LANL is approximately 8,500 employees, of which females make up approximately 30% (or roughly 2,550) and Hispanics make up approximately 25% (or roughly 2,150). Thus, the class is sufficiently numerous that joinder of all members herein is impracticable.

15. Questions of law and fact are common to the claims of Plaintiffs and the members of the class, including but not limited to discriminatory pay and other tangible job actions due to sex, race, ancestry and national origin, the violation of the Equal Pay Act, the violation of United States constitutional law, and the violation of the New Mexico Human Rights Act. The Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

16. The claims of the named Plaintiffs are typical of the claims of the members of the class, as they arise from the same events, practices, or course of conduct that give rise to claims of the class members, and Plaintiffs= claims are based on the same legal theories.

17. The named Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are committed to prosecuting this action, and they have retained competent counsel experienced in civil litigation of this nature. Moreover, the interests of Plaintiffs are coincident with, and not antagonistic to, those of the other members of the class.

18. The common questions of law and fact herein predominate over questions affecting any individual class member, and class action treatment provides a superior method for the fair and efficient adjudication of the controversy.

III.
STATEMENT OF FACTS

19. Plaintiff Garcia has been employed at LANL since May 6, 1991. She is employed as a Senior Contract Administrator. Her job classification is SSM-2. She has a master=s degree and a bachelor=s degree. Since the time she began working at LANL, she has consistently received significantly less pay than comparably situated white males with similar education, experience and qualifications. On January 15, 2003, she filed charges with the EEOC and the New Mexico Human Rights Division for discrimination based on sex and national origin, and for violations of the EPA. On September 17, 2003, following an investigation, the EEOC issued a finding of probable cause that Garcia received less pay due to her gender.

20. Plaintiff Martinez has been employed at LANL since June 1976. She is employed as a Network Administrator. Her job classification is TEC-6. She has a master=s degree and a bachelor=s degree. Since the time she began working at LANL, she has consistently received significantly less pay than comparably situated white males with similar education, experience and qualifications. On November 25, 2002, she filed a charge with the EEOC and the New Mexico Human Rights Division for discrimination and retaliation based on sex and national origin, and for violations of the EPA.

21. Plaintiff Bennett has been employed at LANL since October 12, 1973. She is employed as a Mechanical Engineer. Her job classification is TSM. She has a doctorate degree, a master=s degree and a bachelor=s degree. Since the time she began working at LANL, she has consistently received significantly less pay than comparably situated white males with similar education, experience and qualifications. On August 22, 2003, she filed a charge with the Human Rights Division and the EEOC for discrimination based on sex and national origin. On December 9, 2003, following an investigation, the Human Rights Division issued a finding of probable cause that Bennett was discriminated against on the basis of her gender. The Human Rights Division has issued an Order of Determination on her charges. Ms. Bennett has filed a written request for a waiver of her right to a hearing. As outlined in paragraph 40 below, this complaint constitutes Ms. Bennett=s notice of appeal, seeking trial de novo in the district court pursuant to NMSA '' 28-1-10(J) and 28-1-13(A) and Rule 1-076, NMRA.

22. Plaintiff Ebelacker has been employed at LANL since October 1973. She is employed as a Procurement Contractor Administrator. Her job classification is GS-6. She has an Associates Degree. Since the time she began working at LANL, she has consistently received significantly less pay than comparably situated white males with similar education, experience and qualifications. On or about September 30, 2003, she filed an internal grievance for discrimination based on sex and national origin and for violations of the EPA.

23. In 2001, the Hispanic Round Table conducted a statistical survey of salaries and promotions for Hispanic employees at LANL. This survey indicated that Hispanic employees earned 36.67% less, on average, than non-Hispanic employees at LANL having similar duties and responsibilities. In addition, this survey indicated that Hispanic employees received only 50% of each dollar raise received by non-Hispanics.

24. In 2002, the United States General Accounting Office (AGAO@) conducted a study of employment practices at LANL. The GAO=s study found that the salaries of minority men and women and white women at LANL were generally lower than those of white men.

25. In 2003, LANL commissioned a study of pay inequities at LANL. The study was conducted by Finis Welch of Welch Consulting, based on information and variables provided by LANL. The methodology of the study and the subjective variables provided by LANL resulted in conclusions that understate the extent of pay disparity at LANL. Despite these methodological shortcomings, however, the report concluded that there were statistically significant pay inequities compared to Anglo males in at least four categories of employees.

(a) For TSMs with bachelor=s degrees, female employees were found to earn approximately 2.3% less than comparable Anglo males, a difference of 2.59 standard deviations;

(b) In the SSM series, female employees were found to earn 1.8% less than similarly situated Anglo males, a difference of 3.48 standard deviations;

(c) In the SSM series, Hispanic employees were found to earn 1.5% less than similarly situated Anglo males, a difference of 2.86 standard deviations; and

(d) In the TEC series, Hispanic employees were found to earn 1.5% less than similarly situated Anglo males, a difference of 4.28 standard deviations.

26. The Plaintiffs and many others have complained for many years of the Defendants= discriminatory practices and have sought remedial measures to redress these pay inequities and other discriminatory employment practices. Despite these efforts, and despite the statistical evidence establishing discrimination, including the Defendants= own studies, the Defendants have failed and refused to take adequate steps to correct these unlawful practices. At all times relevant to the acts alleged herein, and as to every cause of action asserted, Defendants acted fraudulently, oppressively, maliciously, and in knowing and conscious disregard of Plaintiffs= rights and the rights of class members.

IV.
FIRST CAUSE OF ACTION

(Equal Pay Act Violations Under 29 U.S.C. '' 206(d) et seq., as amended)

27. Plaintiffs incorporate by reference into their first cause of action the allegations of paragraphs 1 through 26 above, as fully as if realleged and set forth herein.

28. Defendants have violated and continue to violate the Equal Pay Act, 29 U.S.C. '' 206(d) et seq., by discriminating against the Plaintiffs and the members of the class on the basis of their sex (female) by paying them wages at a significantly lower rate than the rate paid 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. There are no factors that would establish a legitimate basis for these wage disparities. These wage disparities were and are willful and not made in good faith.

29. As a result of Defendants= conduct, Plaintiffs and class members are entitled to compensatory damages including back pay and front pay, and liquidated damages. Plaintiffs are also entitled to declaratory and injunctive relief, including promotions, wage increases, and a permanent injunction prohibiting Defendants from engaging in the discriminatory practices and procedures complained of herein.

V.
SECOND CAUSE OF ACTION
(Civil Rights Violations Under 42 U.S.C. ' 1983)

30. Plaintiffs incorporate by reference into their second cause of action the allegations of paragraphs 1 through 29 above, as fully as if realleged and set forth herein.

31. The above-described acts and omissions of the Defendants were committed intentionally, maliciously, willfully and/or with reckless or deliberate indifference, and in violation of the following clearly established constitutional rights of which a reasonable person would have been aware:

(a) Plaintiffs= and class members= Fourteenth Amendment rights to equal protection of the laws; and

(b) Plaintiffs= and class members= Fourteenth Amendment rights to substantive and procedural due process.

32. The above-described acts and omissions of Defendants were motivated by evil motive and intent, and involved recklessness and callous indifference to Plaintiffs= and class members= federally protected rights, justifying an award of punitive damages.

33. Prior to the acts and omissions alleged herein, Defendants failed to properly create, adopt and inculcate appropriate policies and procedures for supervisors employed by them; failed to properly train, monitor, supervise and discipline supervisors employed by them, and failed to otherwise institute adequate procedures and policies that would protect the rights of Plaintiffs and class members. These acts and omissions were direct and proximate causes of the injuries complained of by Plaintiffs herein, as set forth below.

34. The acts and omissions of the Defendants as set forth above were undertaken under color of state law and operated to deprive Plaintiffs and the members of the class of their federal rights. Defendant Nanos is liable in his individual capacity for damages proximately caused by these acts and omissions. Plaintiffs are also entitled to injunctive relief against the Defendants, including promotions, wage increases, and a permanent injunction prohibiting Defendants from engaging in the discriminatory practices and procedures complained of herein.

VI.
THIRD CAUSE OF ACTION
(Civil Rights Violations Under 42 U.S.C. ' 1981)

35. Plaintiffs incorporate by reference into their third cause of action the allegations of paragraphs 1 through 34 above, as fully as if realleged and set forth herein.

36. The above-described acts and omissions of the Defendants were in violation of Plaintiffs= and class members= right to be free of discrimination based on race. These acts and omissions were done with malice and with reckless disregard for Plaintiffs= and class members= protected rights. Defendants knew of and were deliberately indifferent to the discrimination, and failed to take prompt, effective remedial action. As a direct and proximate result of the aforesaid acts and omissions of Defendants, Plaintiffs and class members have suffered and continued to suffer wage loss, loss of benefits, damage to their careers, violations of their constitutional rights, and other consequential damages.

37. The acts and omissions of the Defendants as set forth above were undertaken under color of state law and operated to deprive Plaintiffs and the members of the class of their federal rights. Defendant Nanos is liable in his individual capacity for damages proximately caused by these acts and omissions. Plaintiffs are also entitled to injunctive relief against the Defendants, including promotions, wage increases, and a permanent injunction prohibiting Defendants from engaging in the discriminatory practices and procedures complained of herein.

VII.
FOURTH CAUSE OF ACTION
(Violations of the New Mexico Human Rights Act)

38. Plaintiffs incorporate by reference into their fourth cause of action the allegations of paragraphs 1 through 37 above, as fully as if realleged and set forth herein.

39. The above-described acts and omissions of the Defendants constitute unlawful discriminatory practices within the meaning of the New Mexico Human Rights Act, as amended, NMSA 1978, '' 28-1-1 et seq. Such discriminatory practices are not based on any bona fide occupational qualification. As a proximate cause of Defendants= unlawful discriminatory practices, Plaintiffs and class members have suffered damages, for which Plaintiffs and class members are entitled to actual damages and reasonable attorneys= fees.

40. As stated in paragraph 21 above, this complaint constitutes Gloria Bennett=s notice of appeal, seeking trial de novo in the district court pursuant to NMSA '' 28-1-10(J) and 28-1-13(A) and Rule 1-076, NMRA.

VIII.
FIFTH CAUSE OF ACTION
(Breach of Contract)

41. Plaintiffs incorporate by reference into their fifth cause of action the allegations of paragraphs 1 through 40 above, as fully as if realleged and set forth herein.

42. Plaintiffs and the members of the class have valid employment contracts with the Defendants. These employment contracts include, among other provisions, explicit contractual agreements not to engage in discrimination based on sex, race, ancestry or national origin. These employment contracts also include implied covenants of good faith and fair dealing, pursuant to which Defendants are obligated to act honestly and in accordance with standards of fair dealing. Included among these obligations of good faith and fair dealing is the obligation to treat Plaintiffs and class members in a fair, even-handed and non-discriminatory manner.

43. Defendants breached these contractual agreements by discriminating against Plaintiffs and the members of the class on the basis of sex, race, ancestry and national origin.

44. As a direct and proximate result of Defendants= breach of contract, Plaintiffs and the members of the class have suffered damages, including but not limited to loss of earnings, loss of benefits, loss of promotional opportunities, loss of career opportunities, pain, suffering, emotional distress and mental anguish.

45. As a result of Defendants= conduct, Plaintiffs and class members are entitled to both compensatory and punitive damages.

IX.
DAMAGES

46. As a direct and proximate result of the wrongful and unlawful actions of Defendants, described above, Plaintiffs and the members of the class were injured and have suffered and continue to suffer damages, including:

(a) loss of earnings, loss of benefits, loss of promotional opportunities, loss of career opportunities, pain, suffering, emotional distress and mental anguish;

(b) loss and/or destruction of property and property rights; and

(c) deprivation of constitutional rights.

WHEREFORE, Plaintiffs, on behalf of themselves, and on behalf of the members of the class represented herein, respectfully pray for and demand judgment against the Defendants as follows:

(a) Judicial declaration that the Defendants= discriminatory policies, procedures and practices are unlawful;

(b) Issuance of a permanent injunction prohibiting the continuation of Defendants= discriminatory policies, procedures and practices;

(c) Compensatory damages, including back pay, front pay and other consequential, incidental and special damages, under any or all of the causes of action, in an amount to be determined at the trial of this cause;

(d) Liquidated damages as allowed by law;

(e) Punitive and exemplary damages, under any or all of the causes of action, in an amount to be determined at the trial of this cause;

(f) Prejudgment and postjudgment interest, all in amounts to be determined according to law;

(g) Reasonable attorneys= fees and costs, including attorneys= fees and costs pursuant to 42 U.S.C. ' 1988, the Equal Pay Act, and the New Mexico Human Rights Act; and

(h) Such further relief, including equitable relief, as the court deems just and proper.

Respectfully submitted,

John C. Bienvenu
Richard W. Hughes
Caren I. Friedman
ROTHSTEIN, DONATELLI, HUGHES
DAHLSTROM & SCHOENBURG, LLP
P.O. Box 8180
Santa Fe, NM 87504-8180
(505) 988-8004

By: ___________________________________
Attorneys for Plaintiffs