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Judge tosses discrimination case against King

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State Attorney General Gary King got bloodied but still won the war.

In an order issued March 28, a federal judge dismissed a gender and pay discrimination lawsuit filed against King by Lesley Lowe, who worked as a lawyer in the AG’s Office from 1987 to 2010.

King is a candidate for the Democratic nomination for governor in the June primary election.

U.S. District Judge Judith Herrera in Albuquerque said Lowe hadn’t shown that her work at the AG’s Office was sufficiently similar to that of higher-paid male lawyers.

Herrera also wrote that the AG’s Office had offered legitimate nondiscriminatory reasons why male lawyers cited by Lowe, a former assistant attorney general, were paid more than she was.

“We are satisfied to see that the Court agreed with what we have said all along, that there was no evidence to justify Lowe’s claims that a male attorney at the AGO whose work was substantially equal to Lowe’s was paid more,” King spokesman Phil Sisneros said in an email.

Lowe’s attorney, Daniel Faber, said there was evidence his client was paid less for work substantially equal to that of at least one other male lawyer in the AG’s Office and that he should have been able to present that evidence to a jury.

Herrera dismissed the case on a pretrial motion by the AG’s Office.

Without any admission of liability, the AG’s Office previously had settled out of court with two other plaintiffs in the case: Mary Smith, an assistant attorney general, and Melanie Carver, a former assistant attorney general.

Under the settlement, Smith and Carver shared a monetary award of $31,500. Also, King was to seek state funding for a pay-equity study of his office and to adopt a policy to prevent gender-based pay inequity.

Sisneros said the Legislature has never provided funding for the study and that the AG’s Office has a general anti-discrimination policy that covers pay issues.

King had denied pay inequity in the office. He said in an affidavit in the lawsuit that lawyers in his office are paid based on such factors as “management responsibilities, complexity of duties, relevant legal experience and special skill sets.”

Complaints from some female lawyers in the AG’s Office about their pay date back more than two decades. King was first elected attorney general in 2006, and Lowe and the others filed their lawsuit in 2010.

Prior to the lawsuit, the women met with King to discuss their concerns and present a report they prepared showing they were paid less than several less experienced male lawyers. The report also alleged broader gender-based pay inequity in the AG’s Office.

King dismissed the study as flawed and self-serving and denied there was pay inequity but still gave each of the women a 5 percent pay increase, according to written statements he had made as part of the lawsuit.

The women’s lawsuit sparked a separate, but related, headline-making spat between lawyer Daniel Faber, who filed the lawsuit on the women’s behalf, and the attorney general.

In 2010, Faber sent King a request under the state Inspection of Public Records Act for documents related to salaries and other employee information.

The AG’s Office refused to turn over the records, because a federal magistrate had put a halt to discovery in the lawsuit. Discovery is the formal way parties in a lawsuit obtain information from each other prior to trial.

Faber sued in state District Court to get the records and won. Judge Beatrice Brickhouse in Albuquerque said a halt in discovery doesn’t magically turn public records into confidential information or relieve public officials of their obligation to release the documents when requested.

Faber sought damages, and the judge ordered the AG’s Office to pay him about $20,000.

The Faber case was embarrassing for King, because his office is supposed to be an enforcer of the Inspection of Public Records Act and trains other government agencies on how to comply with the law.

King has filed an appeal with the state Appeals Court, arguing that Brickhouse misinterpreted the law on damages in open-records cases.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to abqjournal.com/letters/new to submit a letter to the editor.

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