232 F.3d 760 (10th Cir. 2000), 98-2338, Garcia v. City of Albuquerque

Docket Nº:98-2338
Citation:232 F.3d 760
Party Name:SILAS GARCIA, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; LAWRENCE RAEL, Chief Administrative Officer; ANNE WATKINS, Director of Transit Department; CITY EMPLOYEE HEALTH CENTER, Defendants - Appellees, KAREN MULLOY, Dr., Director of Employee Health Clinic; CITY EMPLOYEE ASSISTANCE PROGRAM; JULIA BAIN, Primary Therapist and Program Director; CITY P
Case Date:November 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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232 F.3d 760 (10th Cir. 2000)

SILAS GARCIA, Plaintiff-Appellant,

v.

CITY OF ALBUQUERQUE; LAWRENCE RAEL, Chief Administrative Officer; ANNE WATKINS, Director of Transit Department; CITY EMPLOYEE HEALTH CENTER, Defendants - Appellees,

KAREN MULLOY, Dr., Director of Employee Health Clinic; CITY EMPLOYEE ASSISTANCE PROGRAM; JULIA BAIN, Primary Therapist and Program Director; CITY PERSONNEL BOARD; JAMES FOLEY, Chairman, Defendants.

No. 98-2338

United States Court of Appeals, Tenth Circuit

November 13, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-96-1459 MV/LCS)

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[Copyrighted Material Omitted]

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Paul Livingston, Attorney at Law, Albuquerque, New Mexico for Appellant.

Charles W. Kolberg, Assistant City Attorney, Albuquerque, New Mexico for Appellees.

Before KELLY, HOLLOWAY and BRISCOE, Circuit Judges.

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HOLLOWAY, Circuit Judge.

Plaintiff/appellant Silas Garcia filed this action against his employer, the City of Albuquerque, and various city officials (the City). Garcia alleged, in part,1 that the City terminated him in violation of his: (1) right to procedural due process, (2) right to substantive due process, and (3) liberty interest. The case was referred to a magistrate to hear pre-trial motions. Thereafter, the City moved for summary judgment. The magistrate recommended granting the motion. Garcia objected to the recommendation arguing, in part, that the magistrate did not have authority to review the City's summary judgment motion. The district court denied Garcia's objections and granted the City's motion for summary judgment. Garcia moved for reconsideration, which the district court denied. This timely appeal ensued. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

I

Silas Garcia served as a bus driver for the Transit Department of the City of Albuquerque for fourteen years, from 1982 until his termination in 1996. Appendix at 2. On January 1, 1995, the Transit Department instituted a substance abuse policy designed to maintain a drug and alcohol free workplace in compliance with the Drug Free Workplace Act of 1988, the Omnibus Transportation Employee Testing Act of 1991, and the Federal Transit Administration Regulations, 49 C.F.R. §§ 653, 654, and 40. Under the Federal Transit Administration Regulations, revenue vehicle operators, such as Garcia, are classified as safety sensitive employees, and thus are subject to random drug testing by their employers. Id. at 26. Consequently, in February 1996, the City required Garcia to submit to a random, suspicionless urinalysis drug test, the results of which revealed the presence of metabolites for marijuana. Appendix at 2. On March 26, 1996 the City terminated Garcia's employment for violating the Transit Department's "zero tolerance" drug policy. Id.

Garcia filed a disciplinary grievance pursuant to the City's Merit System Ordinance and requested a hearing to contest his termination before a Personnel Hearing Officer. Id. On April 19, 1996, the Personnel Board conducted a hearing at which Garcia was represented by United Transportation Union Chairman Robert Gutierrez. Id. At the hearing, the parties stipulated that Garcia had been disciplined more severely than other Transit Department employees accused of the same offense and that "there was no evidence that Mr. Garcia was at any time impaired by any substance." In assessing the appropriateness of Garcia's dismissal, the Hearing Officer considered possible mitigating factors: that since Garcia began his employment with the Transit Department in 1982 he had "performed his duties acceptably"; that his record was "devoid of any other discipline"; and that this was Garcia's first positive drug test, numerous other random tests having yielded negative results. Against these mitigating factors, the Hearing Officer weighed the fact that Garcia was a safety sensitive employee who knew that he would face discipline if he failed a random drug test. Taking these considerations into account, the Hearing Officer concluded that "on balance" the "factors in mitigation do not outweigh the harshness of the discipline of discharge," and therefore recommended sustaining Garcia's dismissal. Appendix at 25-28.

On review before the Personnel Board, however, the Board voted 4-0 to modify the Hearing Officer's recommendation and reinstated Garcia with a sixty day suspension, predicated on his enrollment in the City's employee assistance program for drug rehabilitation and subject to random testing to be conducted every two weeks for a period of six months. Appendix at

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28. On June 13, 1996, the City filed a notice of appeal in New Mexico state court (Second Judicial District Court, County of Bernalillo), challenging the Personnel Board's reinstatement of Garcia and arguing that the Board's decision was "arbitrary or capricious, unsupported by substantial evidence, or otherwise not in accordance with law." Id. at 60.

Garcia contends that he complied with the Personnel Board's order and enrolled in the Employee Assistance Program, attended counseling and therapy sessions, and submitted to the required drug testing, on which he tested negative. See Appellant's Opening Brief at 5. Garcia further contends that in July 1996, with the approval of his therapist, he signed a "Return to Work Agreement" accepting that upon his return he would be subject to periodic and unannounced drug testing for up to two years. Appendix at 45. Garcia maintains that his therapist then referred him to the City's doctor for a "return to work examination." Appellant's Opening Brief at 5.

On July 10, 1996, a physician with the City's Employee Health Clinic examined Garcia. Although the physician gave Garcia permission to return to work, she imposed the restriction that Garcia not be allowed to drive a bus. Appendix at 47. The physician did not explain the reason why she imposed this restriction.

On July 16, 1996, after Garcia did not report for work, the City sent him a letter informing him that his absence was "unauthorized." He was directed to report for duty and warned that failure to do so could result in "disciplinary action up to and including termination." Appendix at 48. 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. On July 19, after Garcia failed to report for his reassignment, the City sent Garcia another letter warning him that his absence was "unauthorized" and stating that he was jeopardizing his position with the City. The letter warned that if he did not report to work by July 24, 1996, he would be considered to have voluntarily resigned under Section 3-1-19 of the Merit System Ordinance. Appendix at 49.

On July 24, 1996, after Garcia continued to refuse to report to work, the City notified him that a pre-determination hearing had been scheduled for July 31 to allow him to respond to the charge of "Unauthorized Absence/AWOL" pursuant to Personnel Rules and Regulations, Section 803, and Section 3-1-19 of the Merit System Ordinance. Garcia was also informed that he was entitled to legal or union representation at the hearing. Appendix at 50. On August 1, 1996, the City reiterated that it would be willing to accept Garcia as a security guard at the same pay and benefits as he earned as a bus driver, pending resolution of its appeal in state court of the Personnel Board's decision. The City told Garcia's counsel, however, that this "offer will only remain open until 5 p.m., August 2, 1996." Otherwise, the City stated, it would proceed and make its decision based on its July 31 pre-determination hearing. Appendix at 51.

On August 5, 1996, the City informed Garcia that its offer of employment had been withdrawn, telling him that because he had refused to report to his security guard reassignment and his efforts to explain his refusal during the July 31 pre-decision hearing were unsatisfactory, it was "left with no alternative but to withdraw that offer of employment." Appendix at 52.

On September 27, 1996, the City filed an Appellants' Statement of Appellate Issues in support of its state court appeal of the Personnel Board's order reinstating Garcia. Although required by state procedures to file and serve a response within thirty days after service, Garcia did not respond. Appendix at 93. On November 8, 1996, the City filed a Motion to Dismiss Appeal for Mootness, seeking an order from the state court declaring that the

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appeal had become moot since the City complied with the administrative decision in question. Id. at 61. The City argued that the Personnel Board's order requiring Garcia to be reinstated had been rendered moot since after the City's appeal had been filed, Garcia had refused its offer of reinstatement and had not reported to work, actions that constitute "resignation" under the City's Merit System Ordinance. In so arguing, the City emphasized that there is "nothing in the Personnel Board's order, the Merit System Ordinance, the Personnel Rules and Regulations or the union contract which guarantees Garcia the job duties of his choice." Id. at 62-63. Consequently, the City maintained, it was "no longer under any duty to reinstate Garcia and an appeal of the Personnel Board's order is unnecessary and should be dismissed as moot" since Garcia had resigned. Id.

Although state procedural rules required that Garcia respond to the City's Motion within fifteen days of service, Garcia again failed to reply. Id. at 93-94. Consequently, on March 24, 1997, four months later, the City filed a Motion for Default Judgment for Failure to Timely Respond to Pleadings. Id. Garcia eventually agreed to the court's granting of the...

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