JAMES O. BROWNING, District Judge.
Salazar was a tenured full-time City employee. See Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed July 8, 2010 (Doc. 1) ("Complaint"). Salazar began working as a City bus driver on March 25, 2000. See id. ¶ 8, at 2. He was continuously employed until February 28, 2007, when the Transit Department placed him on leave with pay pending investigation. See id. ¶ 8, at 2.
The City of Albuquerque terminated Salazar's employment for reasons connected with the allegation that he was a sex offender and a child molester. Salazar's ex-wife had accused him "of improperly touching their 4-year-old daughter during a court-approved Father's Day weekend visitation in 2001." Complaint ¶ 9, at 3. Salazar maintains that these allegations are false.
On October 11, 2006, Salazar pled "no contest" to the charge of attempted touching of his daughter, and the state court entered its Judgment and Order of Conditional Discharge, which stated that "without adjudication of guilt" the charges against him would be dismissed "pursuant to this Conditional Discharge." Complaint ¶ 10, at 3. Salazar maintains his innocence. On February 27, 2007, a State Parole Officer delivered a letter to the Transit Department stating that "your employee, Paul Salazar, is a convicted sex offender and/or is under the supervision of the Probation-Parole Division for a sexual offense. He has been adjudicated guilty of the following crime(s): Attempted Sexual Contact of a Minor." Complaint ¶ 11, at 3. On July 9, 2007, categorizing him as "a convicted sex offender," the City of Albuquerque terminated Salazar's employment with the City of Albuquerque. Complaint ¶ 13, at 3.
The City of Albuquerque unsuccessfully attempted to defend its actions in a Personnel Board hearing. On June 11, 2008, after a three-day evidentiary hearing, the Personal Board found that Salazar was terminated without just cause. See Complaint ¶ 14, at 3. The Personnel Board ordered the City of Albuquerque to reinstate Salazar with back pay and benefits, and to expunge Salazar's disciplinary infraction from his record. See Complaint ¶ 14, at 3.
Salazar alleges that Payne and Defendant Mayor Martin Chavez refused to reinstate Salazar; instead, they publicly and repeatedly called Salazar a "sex offender" and a "child molester," and announced that they would not reinstate him. Complaint
Complaint ¶ 16, at 4 (quoting T. Wilham, City Must Rehire Sex Offender Bus Driver, Albuquerque J., June 18, 2008 at A1). The same article quotes Payne as stating:
Complaint ¶ 18, at 4 (quoting Wilham, supra).
The City of Albuquerque unsuccessfully appealed the Personnel Board's ruling to the Second Judicial District Court of New Mexico. On January 7, 2009, the Honorable Valerie M. Huling, New Mexico District Court Judge, affirmed the Personnel Board's decision on due-process grounds, but remanded the case back to the Personnel Board to determine whether the City of Albuquerque had just cause to terminate Salazar's employment "irrespective of the . . . due process violations." Complaint ¶ 20, at 5. On August 12, 2009, the Personnel Board held unanimously that the City of Albuquerque did not meet its burden of proof to demonstrate that Salazar was fired for just cause and again ordered the City of Albuquerque to reinstate him in his position, to pay his back pay, to restore his benefits, and to expunge his disciplinary record. See Complaint ¶ 21, at 5. The City of Albuquerque again appealed to the state district court. Salazar contends that the City of Albuquerque continues to fail "to comply with their promises and obligations to return Mr. Salazar to work, pay his back wages, reinstate his benefits, and expunge his record." Complaint ¶ 30, at 7.
On January 4, 2010, the City of Albuquerque's attorney wrote to Salazar's attorney:
Complaint ¶ 23, at 5-6 (quoting Electronic transmission from Paula Forney to Paul Livingston with copies to Eugene Moser, Bruce Rizzieri, and Mary L. Scott). City of Albuquerque Director of Human Resources, Eugene Moser, confirmed that "Salazar will be returning as a Motor Coach Operator once he passes the requisite drug screening." Id. ¶ 24, at 6. Salazar took the City of Albuquerque's pre-employment physical examination and drug test, and passed both. See id. ¶ 27, at 7.
On February 4, 2010, Payne, who was no longer a City of Albuquerque employee, made a statement to KOB-TV-4:
Complaint ¶ 25, at 6. On February 11, 2010, Albuquerque news media reported that the City of Albuquerque planned to challenge Salazar's reinstatement. See
On July 8, 2010, Salazar filed his Complaint. Salazar brings six Counts against the Defendants: (i) violation of right to procedural due-process, Count I; (ii) violation of right to substantive due-process, Count II; (iii) defamation per se, Count III; (iv) malicious abuse of process, Count IV; (v) breach of employment contract and duty of good faith and fair dealing, Count V; and (vi) punitive damages, Count VI. See Complaint Counts I-VI, at 8-13.
The City of Albuquerque and Berry, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, move the Court to dismiss Salazar's Complaint against all Defendants. The City of Albuquerque and Berry set out the grounds for their motion more fully in an accompanying memorandum in support of their motion to dismiss Salazar's Complaint. See Defendants' Memorandum in Support of Motion to Dismiss Plaintiff's Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed August 10, 2010 (Doc. 4) ("Memorandum"). The City of Albuquerque and Berry contend that the Court should dismiss Salazar's Complaint as to all Defendants, although the City of Albuquerque can ascertain that only the City of Albuquerque and Berry have been served at the time they filed their Motion. The City of Albuquerque and Berry contend that, taking all the allegations in the Complaint as true, the allegations do not, as a matter of law, establish Salazar's claims. The City of Albuquerque and Berry further contend that the Defendants are immune from Salazar's tort claim.
As of the date that the City of Albuquerque and Berry filed their motion, the City of Albuquerque's appeal of the latest Personnel Board ruling was still pending in the Second Judicial District Court in CV 2009-10465. See Complaint ¶ 22, at 5. The state court has yet to rule whether the City of Albuquerque properly terminated Salazar. The City of Albuquerque represents that, contemporaneously with its Motion, it is withdrawing its appeal in state district court and acting to reinstate Salazar. See Memorandum at 3. It is also moving in state court to provide him a name-clearing hearing. See Memorandum at 3.
On August 11, 2010, Salazar filed his Response to Defendants' Motion to Dismiss. See Doc. ("Response"). Salazar argues that the Court should deny the City of Albuquerque's and Berry's Motion. Salazar argues that he adequately alleged facts in support of his claims in his Complaint. He contends that his allegations are not threadbare recitals of the elements of the claims. Salazar does not address the City of Albuquerque's and Berry's contention that they are immune from Salazar's tort claims, other than to assert that the contentions "are not worthy of serious consideration." Response at 9.
On September 30, 2010, the City of Albuquerque and Berry filed their Defendants' Reply to Plaintiff's Response to Motion to Dismiss Plaintiff's Complaint for Violation of Statutory, Contractual, and Constituional [sic] Rights. See Doc. 10.
The City of Albuquerque reinstated Salazar as a motorcoach operator for the Transit Department on August 28, 2010, and then administratively transferred him to a position in the City of Albuquerque's Solid Waste Management Department as a clean city operator, which constituted approximately a three-dollar-per-hour pay raise. The City of Albuquerque and Berry contend that Salazar is qualified to perform this job. Salazar failed to appear for work on September 13, 2010. Approximately that same day, "Salazar was sent notice [at] his home address that he must appear for work or risk being considered to have abandoned his job, pursuant to the City's Personnel Rules and Regulations, which state that three consecutive days of unauthorized absences constitute an automatic resignation and job abandonment." Affidavit of Ismael Montanez, Assistant Superintendent for Human Resources ¶ 5, at 2 (executed September 30, 2010). Salazar did not appear for work. On or about September 17 and 20, 2010, Salazar was sent a notice and a revised notice of predetermination hearing for his failure to appear for work. The predetermination hearing was held September 23, 2010. Salazar did not appear for that hearing, but his attorney, Mr. Livingston, responded in writing to the notice of predetermination hearing. On September 27, 2010 the City of Albuquerque terminated Salazar for abandoning his job.
At the October 27, 2010 hearing, Salazar conceded that he did not have a procedural due-process claim at the time the Personnel Board first ordered that the City of Albuquerque reinstate him. See Transcript of Hearing at 7:20-24 (Court, Livingston) ("Tr.").
Under rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R.Civ.P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337,
A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiff's obligation to set forth the grounds of his or her entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). "[T]he Supreme Court recently. . . prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "The [Supreme] Court explained that a plaintiff must `nudge his claims across the line from conceivable to plausible' in order to survive a motion to dismiss." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (alterations omitted). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177. The Tenth Circuit has stated:
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).
Article III, Section 2 of the United States Constitution limits the federal courts' jurisdiction to actual cases and controversies. "Federal courts are without authority to decide questions that cannot affect the rights of litigants in the case before them." Ford v. Sully, 773 F.Supp. 1457, 1464 (D.Kan.1991) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). See Johansen v. City of Bartlesville, Okla., 862 F.2d 1423, 1426 (10th Cir.1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir. 1988). "To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Ariz., 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010). Accordingly, if a case is moot, or becomes
The court should not be quick to dismiss a claim for lack of jurisdiction. "Before deciding that there is no jurisdiction, the district court must look at the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and the laws of the United States." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Jurisdiction is not dependent on whether the plaintiff will succeed in his cause of action; jurisdiction is determined before the details of the cause of action, both in law and fact, are considered. See Bell v. Hood, 327 U.S. at 682, 66 S.Ct. 773.
The Tenth Circuit prescribes a two-step inquiry in determining whether an individual's procedural-due-process rights were violated: (i) "Did the individual possess a protected property interest to which due process protection was applicable?"; and (ii) "Was the individual afforded an appropriate level of process?" Camuglia v. The City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)). As for the second step, ordinarily one who has a protected property interest is entitled to some sort of hearing before the government acts to impair that interest, although the hearing need not necessarily provide all, or even most, of the protections a trial affords. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. "[D]ue process is flexible and calls [only] for such procedural protections as the particular situation demands." Id. at 334, 96 S.Ct. 893 (internal quotation marks and brackets omitted). For example, "[w]here. . . the state must act quickly, a meaningful postdeprivation hearing is adequate." Clark v. City of Draper, 168 F.3d at 1189. See also Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.1989) (removal of child from parents' custody requires predeprivation hearing "except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." (internal quotation marks omitted)).
The Due Process Clause of the Fourteenth Amendment requires that no state "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 2. The Supreme Court has stated that "there can be no doubt that the meaning of `liberty' must be broad indeed." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
408 U.S. at 572, 92 S.Ct. 2701 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). In Board of Regents v. Roth, the Supreme Court noted in dicta that a state might abridge a liberty interest if, in declining to renew an employment contract, the state made charges of dishonesty or immorality or imposed "a stigma or other disability that foreclosed [an employee's] freedom to take advantage of other employment opportunities." 408 U.S. at 573, 92 S.Ct. 2701.
In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court "held that defamation, standing alone, was not sufficient to establish a claim for deprivation of a liberty interest." Renaud v. Wyo. Dep't of Family Servs., 203 F.3d 723, 726 (10th Cir.2000). The Supreme Court addressed a case in which local police chiefs included the plaintiff's photograph in a "flyer" of "active shoplifters," after the petitioner had been arrested for shoplifting. 424 U.S. at 697, 96 S.Ct. 1155. The authorities eventually dismissed the shoplifting charge, and the plaintiff filed suit under 42 U.S.C. § 1983 against the police chiefs, alleging that the officials' actions inflicted a "stigma" to his reputation, because "the `active shoplifter' designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities." 424 U.S. at 697, 96 S.Ct. 1155.
The Supreme Court rejected the plaintiff's claim, holding that injury to reputation by itself was not a liberty interest that the Fourteenth Amendment protects. 424 U.S. at 708-09, 96 S.Ct. 1155. The Supreme Court
Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).
In Siegert v. Gilley, the Supreme Court revisited the question whether defamation can amount to a constitutional violation. A former government employee brought an action against a former supervisor alleging that his former supervisor, in response to a request for information on job performance, wrote a defamatory letter that deprived him of his constitutionally protected liberty interest in his reputation without due process. The former supervisor's letter stated:
500 U.S. at 228, 111 S.Ct. 1789 (alteration in original) (citations omitted). Siegert argued "that if the defendant acted with malice in defaming him, what he describes as the `stigma plus' test of Paul v. Davis is met." 500 U.S. at 234, 111 S.Ct. 1789. The Court rejected Siegert's argument and held that he had not stated a liberty-interest claim, stating that its "decision in Paul v. Davis did not turn, however, on the state of mind of the defendant, but on the lack of any constitutional protection for the interest in reputation." 500 U.S. at
500 U.S. at 233-34, 111 S.Ct. 1789.
In Workman v. Jordan, 32 F.3d 475 (10th Cir.1994), the Tenth Circuit applied Supreme Court precedent to delineate a four-part test that a plaintiff must satisfy to demonstrate a deprivation of his liberty interest:
32 F.3d at 480-81. See Melton v. City of Okla., 928 F.2d 920, 926-27 (10th Cir.1991) (en banc) (holding that elements are not disjunctive but must all be satisfied).
The first element requires that a plaintiff prove "the defendant made a statement impugning his or her good name, reputation, honor, or integrity." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 526 (10th Cir.1998). The statement must make a "false charge of sufficient opprobrium that would make the plaintiff an unlikely candidate for employment." Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th Cir.1994) ("[A]n accusation that a police officer falsified a speeding ticket qualifies as a stigmatizing charge which amply supports that element of a liberty interest violation."). Such accusations involve charges of "dishonesty or immorality." Palmer v. City of Monticello, 31 F.3d at 1503. See Melton v. City of Okla., 928 F.2d at 927 (noting that "stigma is sufficient if it involves dishonesty, serious felony, manifest racism, serious mental illness, or the like" (citing Green v. St. Louis Housing Auth., 911 F.2d 65, 69 (8th Cir.1990))). Cf. Hill v. Dep't of Air Force, 844 F.2d 1407, 1412 (10th Cir.1988) (noting that the denial of a security clearance does not violate a liberty interest, because "[a] clearance does not equate with passing judgment upon an individual's character"); Sipes v. United States, 744 F.2d 1418, 1422
The "third element should have been phrased conjunctively: the statement must occur in the course of terminating the employee and must foreclose other employment opportunities." Castillo v. Hobbs Mun. Sch. Bd., 315 Fed.Appx. 693, 697 (10th Cir.2009) (citing Renaud v. Wyo. Dep't of Family Servs., 203 F.3d at 728 n. 1). The Tenth Circuit has stated that, although "[a]t first blush, it appears that this prong of the test can be met either by statements made in the course of terminating an employee or, in the alternative, by any other statements that might foreclose other employment opportunities," the requirement that "the statements must occur in the course of terminating the employee or must foreclose other employment opportunities" are not alternative bases for establishing a liberty-interest claim, because "Paul clearly requires that the defamation occur in the course of the termination of employment," and "Sullivan [v. Stark, 808 F.2d 737 (10th Cir.1987)] did not abrogate or minimize this requirement." Renaud v. Wyo. Dep't of Family Servs., 203 F.3d at 728 n. 1.
To determine if a statement was made "in the course of terminating the employee," a court must consider the nature and the timing of an allegedly defamatory statement, and the statement need not be made before or during the termination. Renaud v. Wyo. Dep't of Family Servs., 203 F.3d at 727. In Renaud v. Wyoming Department of Family Services, the Tenth Circuit stated:
In some circumstances, reinstatement can defeat a liberty-interest claim. In McCarty v. City of Bartlesville, 8 Fed. Appx. 867 (10th Cir.2001), the Tenth Circuit held that the plaintiffs could not prevail on their liberty-interest claim, because they were reinstated in the same position with back pay and benefits:
8 Fed.Appx. at 872. See Castillo v. Hobbs Mun. Sch. Bd., 315 Fed.Appx. at 697 ("Mr. Castillo[, who was terminated from a school administrator position,] has failed to establish the third element. . . . Not only was Mr. Castillo offered a position as a first-grade teacher in Hobbs, but he secured a position as an administrator with a school in Raton."). Reinstatement to a different position, however, does not necessarily defeat a liberty-interest claim and does not moot a plaintiff's claim. The Tenth Circuit held in Watson v. University of Utah Medical Center, 75 F.3d 569 (10th Cir.1996), that an employers' statement that forecloses employment in a plaintiff's chosen field may satisfy Workman v. Jordan's third element:
Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80.
The Tenth Circuit employs a demanding standard for showing that other employment opportunities are foreclosed when a plaintiff "was not terminated incident to an alleged defamation." Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1155 (10th Cir.2001). In Sandoval v. City of Boulder, Colorado, 388 F.3d 1312 (10th Cir.2004), the Tenth Circuit asserted that a plaintiff who voluntarily resigns must be "categorically ineligible for other employment in either the public or the private sector":
Sandoval v. City of Boulder, Colo., 388 F.3d at 1329.
On the last element, "the plaintiff must prove that . . . the statement was published." Tonkovich v. Kansas Bd. of Regents, 159 F.3d at 526. If a plaintiff does not establish that a statement is published, he or she cannot state a valid liberty-interest claim. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 n. 13, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("As the Court of Appeals found, the failure to allege that the reasons for the dismissal were published dooms this claim."); Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1235 (10th Cir.1998) ("Also fatal to plaintiff's liberty-interest claim is the fact that the defendants made no public statements disparaging Lancaster or harming his standing or associations in the community." (citation and internal quotation marks omitted)); Sipes v. United States, 744 F.2d at 1421 ("We conclude that plaintiff's termination did not implicate a liberty interest for two reasons. First, there is no evidence that the allegedly stigmatizing evidence was made public by the Government."). "A person who establishes a liberty-interest deprivation is entitled to a name-clearing hearing." Evers v. Regents of Univ. of Colo., 509 F.3d 1304, 1308 (10th Cir.2007).
The City of Albuquerque and Berry contend that all of Salazar's claims fail as a matter of law. They assert that, because the City of Albuquerque reinstated Salazar, his procedural due-process and liberty-interest claims are moot. They further assert that the Defendants are immune from his defamation and malicious-abuse-of-process claims, and that Payne's post-employment statement was not defamatory. They also contend that the Chavez' statements and the City of Albuquerque's appeal did not amount to a breach of Salazar's employment contract, or the Defendants' duty of good faith and fair dealing. Salazar opposes the City of Albuquerque's and Berry's Motion. The Court concludes that Salazar has not stated a procedural due-process claim. The Court also concludes that the NMTCA bars Salazar's malicious-abuse-of-process claim and his defamation claim against the Defendants based on their statements made while they were City of Albuquerque employees. Because punitive damages are not an independent claim, the Court dismisses Salazar's punitive damages Count without prejudice to him seeking punitive damages under any claim for which the law permits them. The Court further concludes that Salazar states a defamation claim against Payne based on his post-employment statement. Salazar has also stated a liberty-interest claim that reinstatement as a clean city operator does not moot. The Court therefore grants in part and denies in part the City of Albuquerque's and Berry's Motion.
The Court dismisses Salazar's procedural due-process claim. Salazar contends that the City of Albuquerque's decision to appeal the adverse rulings violated his procedural
The City of Albuquerque and Berry assert that Salazar has failed to state a procedural due-process claim and that his reinstatement mooted his claim. The City of Albuquerque and Berry contend that Salazar was afforded adequate process. They first argue that Salazar has no claim against the Personnel Board, "because he prevailed at every step there. . . . The City's Personnel Hearing Officer and Personnel Board sided with him on every occasion." Memorandum at 2 (citations to the record omitted). Salazar's Complaint and Mr. Livingston's comments at the hearing make clear that Salazar does not complain about the Personnel Board's process. At the hearing, Mr. Livingston asserted the Salazar's procedural due-process claim accrued on June 17, 2008, when Chavez announced that he planned to appeal the Personnel Board's ruling. See Tr. at 7:17-8:2 (Court, Livingston). Salazar's argument is that the City of Albuquerque violated his procedural due-process rights when it appealed the Personnel Board's decision. The City of Albuquerque asserts, however, that, like any other aggrieved party to an administrative proceeding, it has a statutory right to appeal to a state district court under NMSA 1978, § 39-3-1.1, and pursuant to the procedures set forth in rule 1-074 NMRA. Said another way, the City of Albuquerque contends it had a legal right to appeal the Personnel Board's decisions. The City of Albuquerque and Berry maintain that Salazar's theory, distilled to its essence, yields the proposition that a governmental entity commits a due-process violation by exercising its right to appeal rulings that are adverse to it. The City of Albuquerque and Berry contend that a consequence of Salazar's contention would be that the only way to avoid a procedural due-process claim would be for the government entity to acquiesce at every turn. The City of Albuquerque represents that it is aware of no rule to support Salazar's position and that ordinary logic refutes it. The City of Albuquerque and Berry maintain that the City of Albuquerque's appeals of the Personnel Board's decisions to state court did not, and could not, violate Salazar's procedural due-process rights. The City of Albuquerque and Berry further argue that the Court should dismiss this claim as moot because they reinstated Salazar, who then abandoned his job.
The Court agrees that Salazar has not stated a procedural due-process claim, but it does not agree that Salazar's procedural due-process claim is moot. There are two bases on which the Defendants contend that Salazar's claims are moot. First, they argue that Salazar's reinstatement moots his claim. Second, they contend that Salazar abandoned his claim when he failed to appear for work. A procedural due-process claim may be mooted if the plaintiff receives "precise remedy he has requested." Veal v. Jones, 349 Fed.Appx. 270, 272 (10th Cir.2009) ("Veal has already received the precise remedy he has requested. . . . Thus, even assuming that Veal's procedural due process rights were violated by the change in charge, his claim is now moot."). See Taylor v. Franklin, 264 Fed.Appx. 764, 766 (10th Cir.2008) (holding that a prisoner's due-process claim was rendered moot when a state appellate court granted him the relief he sought); Brown v. Wyo. Dep't of Corrs. State Penitentiary, 234 Fed. Appx. 874, 877 n. 1 (10th Cir.2007) ("[A]lleged violations of due process in the first
Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d at 1272 (citing Bernhardt v. County of L.A., 279 F.3d 862, 871 (9th Cir.2002) ("[W]e must conclude that [plaintiff's] claims for prospective relief are moot, although we hold that her possible entitlement to nominal damages creates a continuing live controversy."); Doe v. Delie, 257 F.3d 309, 314 (3d Cir.2001) (holding that where claims for injunctive and declaratory relief were moot, and claim for compensatory damages was prohibited, "[t]he availability of damages or other monetary relief almost always avoids mootness"); Van Wie v. Pataki, 267 F.3d 109, 115 n. 4 (2d Cir.2001) (noting that to avoid potential for mootness, "for suits alleging constitutional violations under 42 U.S.C. § 1983, it is enough that the parties merely request nominal damages") (emphasis added); Yniguez v. Arizona, 975 F.2d 646, 647 (9th Cir.1992) (per curiam) ("The possibility that [plaintiff] may seek nominal damages on appeal is sufficient to prevent mootness."), vacated on other grounds, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir. 1986) (although claims for declaratory and injunctive relief were moot, plaintiff's "claim for damages would not be moot since it is now well established that if he can prove that he was deprived of a constitutionally protected right, and if defendants are not able to establish a defense to that claim, [he] will be entitled to recover at least nominal damages."); Wiggins v. Rushen, 760 F.2d 1009, 1011-12 (9th Cir.1985) ("Even if [plaintiff's] transfer to [a different facility] prevented him from receiving injunctive relief, his claim for [nominal] damages survived."); Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69, 72 n. 5 (4th Cir. 1983) (indicating trial court's suggestion that procedural due-process claims were moot was in error, noting "[t]he Supreme Court has made it plain that the deprivation of procedural due process creates an independent right to seek, at a minimum, nominal damages"); Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir.1981) (although claims for declaratory and injunctive relief were moot, and dismissal of plaintiff's claim for actual damages was not clearly erroneous, under Carey v. Piphus, district court must "consider in this § 1983 action plaintiff's claims for nominal damages and attorney fees")) (other citations omitted). Salazar seeks punitive damages. Additionally, at the hearing,
Salazar fails on the second prong. Taking the allegations in the Complaint as true, Salazar has failed to allege inadequate process. The essence of Salazar's contention is that the City of Albuquerque violated his due-process rights when it appealed the Personnel Board's decision. At the hearing, Mr. Livingston asserted the Salazar's procedural due-process claim accrued on June 17, 2008, when Chavez announced that he planned to appeal the Personnel Board's ruling. See Tr. at 7:17-8:2 (Court, Livingston). See also Tr. at 7:10-15 (Court: "If we just stopped right there after the personnel board reinstated Mr. Salazar and ordered him to be paid back pay and benefits, would you agree with me at that point he doesn't have a procedural due-process claim?" Mr. Livingston: "If the City actually reinstates him."). Salazar does not, thus, allege that he was not "afforded an appropriate level of process." Camuglia v. The City of Albuquerque, 448 F.3d at 1219. Rather, he contends that the Defendants violated his constitutional rights when they appealed the Personnel Board's decision. Salazar's argument is without a sound basis in the law. The process due a person whose protected property interest is impaired depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. Salazar's contention thus furthers none of the goals due-process protections seek to further. A citizen is entitled to process and is not necessarily guaranteed a win. The City of Albuquerque has a statutory right to appeal the Personnel Board's decision. See NMSA 1978, § 39-3-1.1 ("Unless standing is further limited by a specific statute, a person aggrieved by a final decision may appeal the decision to district court by filing in district court a notice of appeal within thirty days of the date of filing of the final decision."). The right to appeal the Personnel Board's decision is part of the process; the statutory provision that parties may appeal the Personnel Board's increases the protections afforded to the parties. There is no sound basis for Salazar to argue that the Constitution guarantees him a right to appeal but prohibits the City of Albuquerque from appealing. The Court, therefore, concludes that Salazar has not stated a procedural due-process claim.
The City of Albuquerque and Berry also contend that Salazar's reinstatement moots his liberty-interest claim. They argue that, when the City reinstated Salazar, "he was no longer either `terminated' or `foreclosed from other employment opportunities.' Reinstatement to a job with the same employer and at a $3.50 per hour pay raise demonstrates Plaintiff was not foreclosed from other employment opportunities." Reply at 3. Salazar responds that the City of Albuquerque's refusal to reinstate him as a bus driver, and its transferring him to a position where he would not be around children, does not clear his name or moot his claim.
Workman v. Jordan, 32 F.3d at 480-81. See Melton v. City of Okla., 928 F.2d at 926-27 (holding that elements are not disjunctive but must all be satisfied). "A person who establishes a liberty-interest deprivation is entitled to a name-clearing hearing." Evers v. Regents of Univ. of Colo., 509 F.3d at 1308.
The parties do not dispute that the Defendants' alleged statements publicly and repeatedly calling Salazar a "sex offender" and a "child molester," Complaint ¶ 15, at 4, "impugn [his] good name, reputation, honor, or integrity." Workman v. Jordan, 32 F.3d at 480-81. They also do not dispute that the allegations were published and are false. The City of Albuquerque and Berry contend, however, that the statements were not made in the course of Salazar's termination and that his reinstatement defeats his ability to show that the statements foreclose other employment. The Court concludes that Salazar has stated a substantive due-process liberty-interest claim, and that his reinstatement in a position where he is not around children or the public does not moot his claim.
Because the City of Albuquerque refuses to reinstate Salazar as a bus driver, it has not mooted his liberty-interest claim. In some circumstances, reinstatement can defeat a liberty-interest claim. In McCarty v. City of Bartlesville, the Tenth Circuit held that a plaintiffs could not prevail on their liberty-interest claim because they were reinstated in the same position with back pay and benefits:
8 Fed.Appx. at 872. See Castillo v. Hobbs Mun. Sch. Bd., 315 Fed.Appx. at 697 ("Mr. Castillo[, who was terminated from a school administrator position,] has failed to establish the third element. . . . Not only was Mr. Castillo offered a position as a first-grade teacher in Hobbs, but he secured a position as an administrator with a school in Raton.").
Reinstatement to a different position, however, does not necessarily defeat a liberty-interest claim and does not moot a plaintiff's claim. The Tenth Circuit held in Watson v. University of Utah Medical Center that an employers' statement that forecloses employment in a plaintiff's chosen field may satisfy Workman v. Jordan's third element:
Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80 (emphasis added). Like the plaintiff in Watson v. University of Utah Medical Center, Salazar's reinstatement shows he may be able to obtain employment, but it is not employment in his chosen field of bus driving. While the City of Albuquerque reinstated Salazar as a motorcoach operator for the Transit Department, it immediately administratively transferred him to a position in the City of Albuquerque's Solid Waste Management Department as a clean city operator. Because the City of Albuquerque did not reinstate Salazar as a bus driver, his reinstatement does not defeat his contention "that defendants' actions foreclosed h[is] future employment opportunities in h[is] chosen field." Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80.
Moreover, the City of Albuquerque and Berry contend that he was assigned to work as a garbage truck driver not to prevent him from being around children, but to keep him safe, because allowing him to drive a bus risks exposing him to individuals who may seek to harm him because of publicity surrounding his case. The Defendants' assertion that publicity from this case, which includes the Defendants' statements that are the basis of Salazar's claim, make it dangerous for Salazar to drive a bus because of the public's potential hostile reaction to him, supports allowing Salazar's claims to go forward. The public's lasting hostility towards Salazar indicates that the Defendants' statements impugned Salazar's "good name, reputation, honor, or integrity," and supports Salazar's contention that other the statements "foreclose other employment opportunities." Workman v. Jordan, 32 F.3d at 480-81.
The City of Albuquerque's and Berry's contention that the alleged statements were not made in the course of Salazar's termination is also unavailing. To determine if a statement was made "in the course of terminating the employee," a court must consider the nature and the timing of an allegedly defamatory statement, and the statement need not be made before or during the termination. Renaud v. Wyo. Dep't of Family Servs., 203 F.3d at 727. In Renaud v. Wyoming Department of Family Services, the Tenth Circuit stated:
203 F.3d at 727. See Miller v. City of Mission, Kansas, 705 F.2d at 373 (affirming jury finding of deprivation of liberty interest based partly on evidence that reasons for termination were announced several days after dismissal). See also Campanelli v. Bockrath, 100 F.3d at 1482-83 (rejecting bright-line rule that post-termination statements cannot form basis of liberty deprivation and holding that statements made one week after termination were made in course of termination); Mertik v. Blalock, 983 F.2d 1353, 1363 (6th Cir.1993) (finding that plaintiff sufficiently alleged deprivation of liberty interest, in part by showing "roughly contemporaneous" publication of reasons for ban of plaintiff from city facilities).
The Court concludes that the alleged statements were made in the course of Salazar's termination. Salazar alleges that, "on July 9, 2007, categorizing him as `a convicted sex offender,' the City, Mayor Chavez, and Mr. Payne terminated Plaintiff's employment with the City of Albuquerque." Complaint ¶ 13, at 3. Additionally, Salazar alleges that, less than a week after the Personnel Board first ordered Salazar reinstated on June 11, 2008, Chavez and Payne made statements in a newspaper article calling Salazar a "sex offender" and a "child molester," and announced that they would not reinstate him. Complaint ¶ 15, at 4. The Albuquerque Journal reported that, on June 17, 2008, Chavez stated:
Complaint ¶ 16, at 4 (quoting Wilham, supra). The same article quotes Payne as stating:
Complaint ¶ 18, at 4 (quoting Wilham, supra). The Court believes that the Defendants' statements about Salazar days after the Personnel Board's ruling were in the course of his termination. Because Salazar's reinstatement in a position that keeps him away from the public does not defeat his liberty-interest claim, and because the statements were in the course of Salazar termination, the Court denies the City of Albuquerque's and Berry's request that it dismiss his substantive due-process claim.
The City of Albuquerque and Berry assert that the NMTCA has not waived immunity for defamation or for malicious-abuse-of-process claims. Salazar contends that "[t]he City's assertion of immunity for both defamation and abuse of process claims is inapplicable to the claims against the defendants in their individual capacities." Response at 10-11. In regard to the City of Albuquerque's and Berry's assertion that the Defendants are immune from defamation claims, Salazar states:
Response at 9.
The Court agrees that the NMTCA has not waived immunity for claims of defamation or malicious abuse of process against the Mayor and the Transit Department Director. See NMSA 1978, § 41-4-4(A) (noting waivers of immunity in §§ 41-4-5 through-12); Garcia-Montoya v. State Treasurer's Office, 130 N.M. 25, 43, 16 P.3d 1084, 1102 (2001) (affirming the summary judgment on defamation claims against the State Treasurer and the Deputy State Treasurer "on the basis that [the plaintiff's] claims were barred by the Tort Claims Act"); Vigil v. State Auditor's Office, 138 N.M. 63, 66, 116 P.3d 854, 857 (Ct.App.2005).
Vigil v. State Auditor's Office, 138 N.M. at 66, 116 P.3d at 857.
The NMTCA waives immunity for defamation and malicious-abuse-of-process claims against law enforcement officers.
NMSA 1978, § 41-4-12. That the New Mexico Legislature expressly allows defamation and abuse-of-process claims against law enforcement officers suggests that they are not otherwise allowed under § 41-4-4. "Thus, in order to state a tort claim under the waiver of immunity set out in Section 41-4-12, a plaintiff must demonstrate that the defendants were law enforcement officers acting within the scope of their duties. . . ." Weinstein v. City of Santa Fe, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996). A law enforcement officer is a "full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor." NMSA 1978, § 41-4-3. "New Mexico courts have construed this definition strictly." Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-633, 2008 WL 5992269, at *4 (D.N.M. Oct. 17, 2009) (Browning, J.) (citing cases). See, e.g., Montes v. Gallegos, 812 F.Supp. 1165, 1172 (D.N.M.1992) (holding that mayor is not a law-enforcement officer under the NMTCA, notwithstanding his statutory authority and obligation to exercise law enforcement functions); Dunn v. McFeeley, 127 N.M. 513, 984 P.2d 760, 767 (Ct.App. 1999) (holding that the Office of the Medical Inspector Investigator and a crime laboratory technician are not law-enforcement officers under the NMTCA), cert. denied, 127 N.M. 389, 981 P.2d 1207 (1999); Coyazo v. State, 120 N.M. 47, 51, 897 P.2d 234, 238 (Ct.App.1995) (holding that the District Attorney and his staff are not law-enforcement officers under § 41-4-3D); Callaway v. N.M. Dep't of Corr., 117 N.M. at 641, 875 P.2d at 397 (holding that correctional officers at penitentiary are not law-enforcement officers under the NMTCA, notwithstanding their statutory power to make arrests); Dunn v. State ex rel. Tax. and Rev. Dep't, 116 N.M. 1, 4, 859 P.2d 469, 472 (Ct.App.1993) (holding that Director of Motor Vehicle Division is not a law-enforcement officer under the NMTCA, notwithstanding his statutory power to make arrests); Vigil v. Martinez, 113 N.M. 714, 721, 832 P.2d 405, 412 (Ct. App.1992) (holding that probation and parole officers are not law-enforcement officers under the NMTCA); Anchondo v. Corr. Dep't, 100 N.M. 108, 111, 666 P.2d 1255, 1258 (1983) (holding that the Secretary of Corrections and the Warden of a state penitentiary are not law-enforcement officer under the NMTCA). See also Johnson v. Holmes, 377 F.Supp.2d 1069, 1083 (D.N.M.2004) (Browning, J.) ("`Akin' to a law enforcement officer is, as a matter of law, insufficient to waive sovereign immunity under § 41-4-12 NMSA 1978."), aff'd, 455 F.3d 1133 (10th Cir.2006).
Salazar does not contend that the waiver for law enforcement officers applies, and the Court does not believe that it does. None of the Defendants—Mayors and a Transit Department Director—have as their "principal duties under law . . . to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes." NMSA 1978, § 41-4-3. Therefore, the waiver of immunity for law enforcement officers does not apply in this case. Moreover, because the NMTCA includes defamation
Salazar appears to argue that the alleged statements were outside the scope of the Defendants' duties because they were tortious. "A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived" by the NMTCA's provisions. NMSA 1978, § 41-4-4A. The New Mexico Legislature defined "scope of duty" to "mean[] performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance." NMSA 1978, § 41-4-3. "Whether an employee is acting within the scope of duties is a question of fact, and summary judgment is not appropriate unless `only one reasonable conclusion can be drawn' from the facts presented." Celaya v. Hall, 135 N.M. 115, 122, 85 P.3d 239, 246 (2004). "In the present case, [the Court] ask[s] whether, under any set of facts alleged in the complaint, Defendants' actions can be considered outside the scope of their duties and thus outside the coverage of the TCA." Henning v. Rounds, 142 N.M. 803, 807, 171 P.3d 317, 321 (Ct.App.2007).
Salazar argues that
Response at 9. Salazar's contention appears to be that the Mayor is not immune from tortious conduct. In Garcia-Montoya v. State Treasurer's Office, the Supreme Court of New Mexico rejected a plaintiff's argument that unlawful acts fall outside of an employee's duties, because this interpretation would swallow the rule:
130 N.M. at 43, 16 P.3d at 1102. By the same measure, Salazar's contention that the NMTCA's immunity does not cover the Mayor's or the Transit Department Director's tortious conduct is unavailing. See Seeds v. Lucero, 137 N.M. 589, 592, 113 P.3d 859, 862 (Ct.App.2005) ("Our case law establishes that a public employee may be within the scope of authorized duty even if the employee's acts are fraudulent, intentionally malicious, or even criminal." (citations omitted)); Vigil v. State Auditor's Office, 138 N.M. 63, 68, 116 P.3d 854, 859 (Ct.App.2005) ("[A]ssuming that [the defendant] violated state and federal law in conducting the audit, even to the extent of some tortious or criminal activity, if he was performing an act that he was requested, required or authorized to perform, he was acting within his scope of duty. . . ." (citation internal quotation marks omitted)). As the Court of Appeals of New Mexico stated in Risk Mgmt. Div. v. McBrayer, 129 N.M. 778, 14 P.3d 43 (Ct.App.2000):
129 N.M. at 784, 14 P.3d at 49. Consequently, the Court concludes that the NMTCA bars Salazar's defamation and malicious-abuse-of-process claims against the Defendants based on statements made while they were City of Albuquerque employees, and the Court dismisses these claims.
In his Complaint, Salazar alleges that, on February 4, 2010, Payne, whom the City of Albuquerque no longer employed, made a defamatory statement to KOB-TV-4:
Complaint ¶ 25, at 6. The City of Albuquerque and Berry contend that Payne's post-employment statement was not defamatory. They argue that "[t]his statement asserts no facts of and concerning Plaintiff that can injure him, and the statement is directed at the Personnel Board and the Mayor, criticizing their decisions." Memorandum at 4. Salazar responds that the statement is defamatory, asserting that "[t]he contention that it was dangerous for children to be `around' Paul Salazar, is both offensive and defamatory. Since the allegation is one of criminal misconduct, it is defamation per se." Response at 9. The Court agrees that the statement is defamatory, and the Court denies the City of Albuquerque's and Berry's Motion with respect to Salazar's defamation claim against Payne.
Salazar has stated a defamation claim against Payne for the statements he made after he left the his employment with the City of Albuquerque.
108 N.M. at 429-30, 773 P.2d at 1236-37. Payne's statement that Salazar should not be placed in a position around children may rise to the level of defamation per se, because "viewed in its plain and obvious meaning, . . . the statement imputes to plaintiff . . . unfitness to perform . . . employment for profit, or the want of integrity in discharge of the duties of such . . . employment." 108 N.M. at 429, 773 P.2d at 1236. Payne's statement, without reference to extrinsic evidence, indicates that Salazar is unfit to perform the duties of a bus driver. Moreover, Payne's statements considered in light of the extrinsic evidence of the Defendants' allegations that Salazar is a sex offender and a child molester is defamation per quod. See 108 N.M. at 429, 773 P.2d at 1236 ("Any other communication, though not defamatory on its face, but which becomes defamatory when its meaning is illuminated by proof of extrinsic facts is actionable per quod."). Because Salazar has set forth allegations in his Complaint that Payne made defamatory, post-employment statements, the Court will not dismiss his defamation claim against Payne based on Payne's post-employment statement.
Salazar's claim for breach of employment contract, and of the duty of good faith and fair dealing, appear to be based on two arguments. First, he implies the Defendants should not have appealed the Personnel Board's order. See Complaint ¶ 56, at 12 ("Pursuant to his employment contract, Mr. Salazar was entitled to a fair hearing before a Personnel Hearing Officer, and once that hearing had been held and a decision rendered the City was required to comply with the final orders of its Personnel Board."). Second, he alleges that "[b]oth Mayor Berry and Mayor Chavez were prohibited by the City Charter from involvement in personnel matters, yet both mayors made invidious statements and comments defaming Paul Salazar." Complaint ¶ 57, at 12. Both of Salazar's arguments fail as a matter of law. The Court will therefore dismiss Count V of Salazar's Complaint.
On the first contention, the Defendants rely on their arguments against the merits of Salazar's procedural due-process claim. They contend that the City of Albuquerque has a statutory right to appeal the Personnel Board's decisions, and that Salazar's argument would require them to abandon their right and immediately acquiesce to the Personnel Board. They note that the upshot of Salazar's argument is that employees, too, could not appeal the Personnel Board's decisions without violating their employment contracts.
The Court agrees that the City of Albuquerque's appeal of the Personnel Board decision did not violate Salazar employment contract. The City of Albuquerque has a statutory right to appeal the Personnel
Salazar alleges that "both Mayor Berry and Mayor Chavez were prohibited by the City Charter from involvement in personnel matters," Complaint ¶ 57, at 12, "but that they ignored and overrode the City Charter, Merit System Ordinance, and City Rules and Regulations concerning employee rights and disciplinary actions, and arrogated `to themselves the ability to do or say whatever they wanted,'" Response at 11 (quoting Complaint ¶ 58, at 12). The City of Albuquerque and Berry contend that nothing in the City's Charter or Merit System Ordinance prevents the Mayor, or any other elected official, from commenting publicly on matters of public interest. They assert that nothing precludes the Mayor from commenting on the history and employment status of the City of Albuquerque's employees, or taking a position on litigation of cases. They further assert that public statements made on cases of public interest are not necessarily involvement in the hiring or discharge process. Salazar responds that whether or not Chavez' and Berry's alleged statements are "`involvement in the hiring or discharge process' and whether they do or do not `demonstrate actual involvement in the process' are again mixed questions of fact and law," which the Court should allow to proceed. Response at 11 (quoting Memorandum at 6).
The Court concludes that Salazar has not stated a claim for breach of contract or duty of good faith and fair dealing. The City Charter states: "Except to the extent necessary for the administration of the merit system, the Mayor is prohibited from becoming involved in the hiring, promotion, demotion, or discharge of any city employee except those personnel hired for unclassified positions directly responsible to the Mayor." Albuquerque City Charter, art. X, § 2(b). There is scant case law interpreting the meaning of this provision. The Court finds only its prior opinion addressing the structure of the City Attorney's office and the authority to make personnel decisions as to unclassified employees has touched on the issue. See Kelley v. City of Albuquerque, 375 F.Supp.2d 1183, 1191 (D.N.M.2004) (Browning, J.). The City Charter's provision appears to address concerns about the Mayor awarding patronage positions, or otherwise using promotions and hiring to reward favor, or demotions or terminations to punish his adversaries. The Court does not believe the Supreme Court of New
Moreover, Salazar cannot enforce the City Charter as a condition of his employment contract. A promise, or offer, that supports an implied contract might be found in written representations such as an employee handbook, in oral representations, in the conduct of the parties, or in a combination of representations and conduct. See Newberry v. Allied Stores, Inc., 108 N.M. at 426, 773 P.2d at 1233. "An implied contract is created only where an employer creates a reasonable expectation. The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon." Hartbarger v. Frank Paxton Co., 115 N.M. 665, 672, 857 P.2d 776, 783 (1993) (citation omitted). If the alleged employer's promise is not sufficiently explicit, the courts will not find an implied contract. Hartbarger v. Frank Paxton Co., 115 N.M. at 669, 857 P.2d at 780. Courts have held that an alleged implied contract that merely restates the law does not create an implied contract. In Peralta v. Cendant Corp., 123 F.Supp.2d 65 (D.Conn.2000), the United States District Court for the District of Connecticut stated:
123 F.Supp.2d at 83-84 (citation to the record omitted). See Mutua v. Tex. Roadhouse Mgmt. Corp., 753 F.Supp.2d 954, 968-69 (D.S.D.2010) (granting summary judgment on a breach-of-contract claim seeking to enforce the anti-discrimination provisions in the employer's employee handbook, because the employer already
The City of Albuquerque and Berry contend that the Court should dismiss Salazar's claim for punitive damages in Count VI, because the underlying claims should be dismissed. Salazar contends he has sufficiently pled his claim for punitive damages by charging the individual defendants acted "intentionally, willfully, maliciously, and with utter disregard for the truth and the damage caused by their conduct." Complaint ¶ 62, at 13. The Court does not dismiss all of Salazar's claims, and punitive damages may be available for his claims. See, e.g., Aken v. Plains Elec. Generation & Transmission Co-op., Inc., 132 N.M. 401, 410, 49 P.3d 662, 671 (2002) (upholding, after remittitur, an award of punitive damages for a defamation claim). Punitive damages, however, are not a stand-alone claim. "[R]equesting punitive damages is not a separate cause of action that should be set out separately in the Complaint." Guidance Endodontics, LLC v. Dentsply Int'l, Inc., 708 F.Supp.2d 1209, 1271 (D.N.M.2010) (Browning, J.). Consequently, the Court dismisses Salazar's Count VI, but it does not preclude him from seeking punitive damages for his surviving claims to the extent the law permits.
In his Complaint, Salazar bases his procedural due-process claim on the Defendants' "refusing to comply with the orders of the City's own Personnel Board to reinstate Mr. Salazar." Complaint ¶ 34, at 8. The City of Albuquerque contends that, because it has now reinstated Salazar, his claim is defeated. See Whalen v. Massachusetts Trial Court, 397 F.3d 19, 28-29 (1st Cir.2005) (affirming "the district court's ruling that [the plaintiff's] case became moot once he was reinstated to his position"). At the hearing, Mr. Livingston conceded that reinstating Salazar with back pay would defeat his procedural due-process claim. See Tr. at 7:10-15 (Court: "If we just stopped right there after the personnel board reinstated Mr. Salazar and ordered him to be paid back pay and benefits, would you agree with me at that point he doesn't have a procedural due-process claim?" Mr. Livingston: "If the City actually reinstates him.").
Salazar contends, however, that reinstating him as a garbage truck driver does not satisfy his interest in continued employment in being a bus driver. Salazar has a property interest in continued employment; he may not, however, have a property interest in continued employment as a bus driver. See Potts v. Davis County, 551 F.3d 1188, 1193 (10th Cir. 2009) (holding a transfer to a position at the same class and grade in compliance with a statute does not did not implicate the plaintiff's property interest). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. It may be that, "[h]ere, as a tenured employee of the City, [Salazar] clearly" has a property interest in continued employment. Garcia v. City of Albuquerque, 232 F.3d at 769 (citing Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ("[P]ublic employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process.")). In Potts v. Davis County, the Tenth Circuit rejected a plaintiff's "conten[tion] that his reassignment from his position as a Patrol Sergeant to his subsequent position at the courts was, in fact, a demotion and not a transfer because he lost the `differential pay' he had earned as a Patrol Sergeant." 551 F.3d at 1192.
Potts v. Davis County, 551 F.3d at 1193 (emphasis added). Similarly, there is a string argument that Salazar's reassignment to driving a garbage truck does not violate Salazar's procedural due-process rights. The new position provided Salazar with a raise of approximately three dollars per hour. See Montanez Aff. ¶ 2, at 1. Under the City of Albuquerque's Merit System Ordinance and Personnel Rules and Regulations, the Chief Administrative Officer has authority to transfer qualified employees to other positions within the City. See City Code of Ordinances, § 3-1-2C(2); Personnel Rules and Regulations, § 307.4. It may be that Salazar did not have a property interest in not being transferred. See Potts v. Davis County, 551 F.3d at 1193 ("If employees had protected property interests in every nuance and detail of their particular positions, employers would lose their ability to transfer employees between positions—otherwise equal in pay and grade—without risking a lawsuit.") (emphasis added).
Moreover, it may be Salazar voluntarily relinquished his property interest in his continued employment when he failed to report after he was reassigned to the position of clean city operator. In Garcia v. City of Albuquerque, the Tenth Circuit held that the City of Albuquerque did not violate a bus driver's procedural due-process rights, because the bus driver, Silas Garcia, voluntarily resigned rather than accept reinstatement to different position. The bus driver was terminated after failing a random drug test. The Personnel Board recommended reinstatement with treatment. The City of Albuquerque appealed the Personnel Board's ruling to New Mexico state court. While the appeal was pending, the City of Albuquerque reinstated Garcia. "The City then informed Garcia that he was reassigned to a security guard position, but would still have the same rate of pay and hours as he had enjoyed as a bus driver." 232 F.3d at 764. Garcia did not report for work, despite two letters "warning him that his absence was `unauthorized' and stating that he was jeopardizing his position with the City." 232 F.3d at 764.
Garcia brought a suit in the United States District Court of New Mexico, alleging, among other things, that the City of Albuquerque violated his procedural due-process and substantive due-process rights. Like Salazar, "Garcia d[id] not challenge the adequacy of the process" that the Personnel Board afforded. 232 F.3d at 769. See Response at 4 ("Plaintiff's Complaint makes clear, however, that he does not complain about the Personnel Board's process." (emphasis original)). Instead,
232 F.3d at 769 (citations omitted). The Tenth Circuit rejected Garcia's argument. The Tenth Circuit held:
232 F.3d at 770.
There is a strong argument that, under the Tenth Circuit's holding in Garcia v. City of Albuquerque, Salazar has voluntarily relinquished his property interest in continued employment. Salazar has been similarly afforded "three opportunities to challenge the City's actions before neutral bodies: (1) the initial Board hearing, (2) the state court proceedings, and (3) the final Board hearing." 232 F.3d at 770. "The City, in compliance with the Personnel Board's order, reinstated [Salazar's] employment, albeit to a different position," 232 F.3d at 770, with a higher rate of pay. "Not satisfied with being transferred to a different position, however, [Salazar] repeatedly refused to report to work, ultimately leading the City to designate him as" having abandoned his job. 232 F.3d at 770. It may follow that "[s]ince [Salazar] clearly had the option of returning to work, we [may need to] hold that his actions constitute a voluntary resignation." 232 F.3d at 770. If the Court, on summary judgment, considers Montanez' affidavit, it may be that Salazar, therefore, "voluntarily relinquish[ed] [his] property interests and, thus, Defendant did not deprive [hi]m of property without due process of law." 232 F.3d at 770 (quoting Parker v. Board of Regents of Tulsa Junior College, 981 F.2d at 1162).
