Carroll v. City of Albuquerque

• Decision Date: 13 October 2010
• Docket Number: No. CIV 10–0588 JB/ACT.,CIV 10–0588 JB/ACT.
• Citation: 749 F.Supp.2d 1216
• Parties: Michael CARROLL, Plaintiff,v.CITY OF ALBUQUERQUE, Defendant.
• Court: U.S. District Court — District of New Mexico

749 F.Supp.2d 1216

Michael CARROLL, Plaintiff,

v.CITY OF ALBUQUERQUE, Defendant.

No. CIV 10–0588 JB/ACT.

United States District Court, D. New Mexico.

Oct. 13, 2010.

Pia Gallegos, Albuquerque, NM, for the Plaintiff.Deborah D. Wells, Kennedy, Moulton & Wells, P.C., Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiff's Motion to Remand to State Court, filed July 1, 2010 (Doc. 5). The Court held a hearing on August 18, 2010. The primary issue is whether section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, completely preempts Plaintiff Michael Carroll's claims of breach of implied employment contract based on Defendant City of Albuquerque's polices. Because section 301 governs claims substantially dependent on analysis of a collective-bargaining agreement, and the Court finds that Carroll's breach-of-implied-employment-contract claims are substantially dependent on his union's collective-bargaining agreement with the City of Albuquerque, the Court finds that the LMRA completely preempts those claims. The Court will therefore deny Carroll's motion to remand. The Court will exercise supplemental jurisdiction over Carroll's New Mexico Whistleblower Protection Act claim.

FACTUAL BACKGROUND

The City of Albuquerque first employed Carroll on July 10, 1989. See Complaint for Damages ¶ 5, at 1 (filed in state court April 30, 2010), filed June 18, 2010 (Doc. 1–1)(“Complaint”), Exhibit to Notice of Removal of Action by Defendant City of Albuquerque Pursuant to 28 U.S.C. Sections 1331, 1441, 1443 and 1446 (“Notice of Removal”). According to Carroll's Complaint, in about 1998, the City of Albuquerque terminated his employment in retaliation for his speech regarding matters of public concern. See Complaint ¶ 6, at 2. On February 15, 1999, the City of Albuquerque entered into a Settlement Agreement reinstating Carroll, making him a “Traffic Engineering Program Specialist at grade MP02, step 3,” and paying him back wages. Id. ¶ 7, at 2. Some time after December 1999, the City of Albuquerque eliminated the position of Traffic Program Specialist MP02—Carroll's position. See id. ¶ 8, at 2. Some time in 2001 or thereafter, the City of Albuquerque changed Carroll's title to Traffic Program Assistant M–13. See id. ¶ 10, at 2. Carroll alleges that the City of Albuquerque did not approve or post a job description for this job title. See id. ¶ 10, at 2. Carroll further alleges that he was never officially placed in a Traffic Program Assistant position, “because such position has never and does not now exist in the City personnel system.” Id. ¶ 12, at 3. Carroll alleges that, per an Inter–Office Memorandum from Chief Administrative Officer Bruce J. Perlman, dated September 26, 2006 (“Inter–Office Memorandum”), a Position Control Form B3 is required for the creation of any new position. See id. ¶ 14, at 3. He also alleges that the City of Albuquerque Personnel Rules and Regulations (“Personnel Rules and Regulations”) Section 602 requires that a Position Control Form must be submitted to request creation of a new position. See id. ¶ 14, at 3. According to Carroll, the City Human Resource Department Personnel Procedures Manual (“Procedures Manual”), Chapter 2, No. 2–1, requires the processing of a Position Control Form B3 to create, delete, and change positions within the City of Albuquerque. See id. ¶ 14, at 3. The City of Albuquerque denies all of these alleged requirements. See Defendant City of Albuquerque's Answer to Complaint for Damages ¶ 14, at 3, filed July 6, 2010 (Doc. 6).

Carroll also alleges that, in March 2002, the City of Albuquerque negligently, maliciously, and with retaliatory intent, changed his employment status from “reinstatement” to “rehire,” thereby causing Carroll to lose his seniority status and changing his rate of accrual for vacation and sick leave. Complaint ¶ 18, at 4. Carroll filed a complaint, through his employment union, the American Federation of State, County, and Municipal Employees (“AFSCME”), with the City of Albuquerque's Human Resources Department. See id. ¶ 18, at 4. The City of Albuquerque corrected the revision. See id. ¶ 18, at 4. In February 2003, Carroll discovered that the City of Albuquerque had again revised his employment status from “reinstatement” to “rehire,” and, after AFSCME filed a union grievance to correct the revision, in November 2003, the City of Albuquerque corrected the revision. See id. ¶ 19, at 4. Carroll alleges that he has been involved in a number of disputes with the City of Albuquerque. See id. ¶¶ 20–24, at 4–5.

Carroll alleges that the City of Albuquerque changed his position from “Specialist” to “Assistant” in retaliation for his protected activities. See id. ¶ 25, at 5. He further alleges that, if the City of Albuquerque had reclassified him as a Traffic Program Specialist E16, he would have received a raise, and alleges that the City of Albuquerque's actions entitle him to lost past and future wages and benefits as a result of its retaliatory conduct. See id. ¶ 30, at 6. He also alleges that he applied for an open position of Traffic Program Specialist E16, but the position was given to Pam Castillo, who was less qualified than Carroll for the position. See id. ¶¶ 33–42, at 7–8. Carroll alleges the hiring of Castillo over him was in retaliation for his protected activities. See id. ¶ 42, at 8. He alleges the City of Albuquerque has retaliated against him in other ways, including revoking his access to the 311 database,¹ prohibiting him from attending staff meetings, requiring him to meet with managers weekly who inform him he is poorly performing his duties, and giving him poor performance evaluations. See id. ¶¶ 45–54, at 9–10.

PROCEDURAL BACKGROUND

On April 30, 2010, Carroll filed his Complaint for Damages in the Second Judicial District Court, County of Bernalillo, New Mexico. In his Complaint, Carroll asserts four claims against the City of Albuquerque. His first claim is that the City of Albuquerque's alleged retaliatory actions violated the New Mexico Whistleblower Protection Act, NMSA 1978, § 10–18–3. See Complaint ¶¶ 56–61, at 10–11. His second claim, titled “Breach of Implied Employment Agreement: No Official Position,” alleges that the Inter–Office Memorandum, Personnel Rules and Regulations, and the Procedures Manual constitute implied employment agreements, and that the City of Albuquerque breached these implied agreements when it placed Carroll in the position of “Traffic Program Assistant,” which Carroll alleges does not exist. Complaint ¶¶ 62–65, at 11–12. His third claim, titled “Breach of Implied Employment Contract: Failure to Hire Best Qualified Person,” alleges that the City of Albuquerque Merit System Ordinance (“Merit System Ordinance”) requires vacant positions to be filled with “the best qualified candidates,” and that the Personnel Rules and Regulations require that the City of Albuquerque fill vacant positions with “the best qualified candidate,” and select candidates for promotion and transfer “on the basis [of] education, experience, training, skills and other abilities.” Complaint ¶ 66, at 12–13. Carroll alleges that these ordinances and regulations constitute an implied employment contract, and that the City of Albuquerque breached the implied employment contract when it hired Castillo for the position of Traffic Program Specialist over Carroll. See Complaint ¶¶ 67–68, at 13. Carroll's fourth claim, titled “Breach of Implied Employment Contract: Retaliation,” alleges that the City of Albuquerque's Employee Equity Office has implemented a written policy prohibiting retaliation against an employee who asserts his or her civil rights or who participates in a civil rights investigation, and that the policy creates an implied employment contract, which the City of Albuquerque breached by retaliating against Carroll for asserting his civil rights and participating in a civil rights investigation. See Complaint ¶¶ 71–75, at 13–14.

On June 18, 2010, the City of Albuquerque removed the case to federal court, on the grounds that: “In his Complaint, plaintiff expressly alleges that defendant violated his civil rights in connection with alleged retaliation against plaintiff for asserting his civil rights, claiming race discrimination and participating in a civil rights investigation.” Notice of Removal ¶ 2, at 1. The Notice of Removal further states: “Given plaintiff's express federal claim against defendant, this case may be removed to this Court by defendant pursuant to the provisions of 28 U.S.C. § 1441, 1443 and 1446.” Notice of Removal ¶ 3, at 1.

On July 1, 2010, Carroll filed a motion to remand the case to state court. Carroll moves the Court to remand the case, because he alleges that he asserts only state claims. He contends that his fourth claim, which alleges that the City of Albuquerque retaliated against him in violation of its policy, is a breach-of-implied-contract claim. See Motion at 1–2. Carroll argues that he has explained to the City of Albuquerque that he intends to pursue no federal causes of action. See Motion at 2.

In response, the City of Albuquerque argues that section 301 of the LMRA preempts some of Carroll's claims. See Defendant City of Albuquerque's Response to Plaintiff's Motion for Remand, filed July 15, 2010 (Doc. 7) (“Response”). The City of Albuquerque contends that a significant portion of Carroll's Complaint is based on an alleged breach of a settlement agreement between Carroll and the City of Albuquerque, asserting that the City of Albuquerque breached its settlement agreement by disregarding the provision setting his continuous service date. See Response at 4. The City of Albuquerque also argues that the collective-bargaining agreement between the City of Albuquerque and Carroll's union, Local 3022 AFSCME, contains provisions prohibiting “retaliation,...