Gonzales v. City of Albuquerque

• Decision Date: 23 March 2011
• Docket Number: No. CIV 09–0520 JB/RLP.,CIV 09–0520 JB/RLP.
• Citation: 849 F.Supp.2d 1123
• Parties: Antoinette GONZALES, Caroll Austin, Sarah Clover, Annette Mora, James Pescetti, Yolanda Garcia, Nicole Foster, Nicole Bordlemay, Kari Waites, and a Class of Similarly Situated City Employees, Plaintiffs, v. The CITY OF ALBUQUERQUE, Ed Adams, Chief Administrative Office, and Esther Tenenbaum, Division Manager, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

849 F.Supp.2d 1123

Antoinette GONZALES, Caroll Austin, Sarah Clover, Annette Mora, James Pescetti, Yolanda Garcia, Nicole Foster, Nicole Bordlemay, Kari Waites, and a Class of Similarly Situated City Employees, Plaintiffs,

v.The CITY OF ALBUQUERQUE, Ed Adams, Chief Administrative Office, and Esther Tenenbaum, Division Manager, in their individual and official capacities, Defendants.

No. CIV 09–0520 JB/RLP.

United States District Court, D. New Mexico.

March 23, 2011.

Paul Livingston, Placitas, NM, for Plaintiffs.

Robert J. Perry, City Attorney, Michael I. Garcia, City of Albuquerque Legal Department, Albuquerque, NM, Edward W. Bergmann, Seyfarth Shaw LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed June 6, 2010 (Doc. 56). The Court held a hearing on January 10, 2010. The primary issues are: (i) whether the Plaintiffs have established a genuine issue of material fact on their due-process claims; (ii) whether the Plaintiffs have established a genuine issue of material fact on their breach-of-contract claims; (iii) whether the Plaintiffs have established a genuine issue of material fact on their wrongful termination claims; (iv) whether the Plaintiffs have established a genuine issue of material fact on their Family and Medical Leave Act, 29 U.S.C. §§ 2601 through 2654 (“FMLA”), claims; (v) whether Plaintiff Antoinette Gonzales has established a genuine issue of material fact on her Fair Labor Standards Act, 29 U.S.C. §§ 201 through 219 (“FLSA”), claim; and (vi) whether the Court should grant declaratory judgment on the issue whether the Plaintiffs had a protected property interest in their continued employment. The Court will grant in part and deny in part the Defendants' Motion for Summary Judgment. The Court will grant summary judgment on the Plaintiffs' due-process claims, because it finds that the Plaintiffs did not have protected property interests in continued employment. The Court will grant summary judgment on the Plaintiffs' breach-of-contract claims, because it finds that the Plaintiffs have not established a genuine issue of fact whether they had implied employment contracts. The Court will grant summary judgment on the Plaintiffs' wrongful termination claims, because the Plaintiffs have not established an issue of fact whether they were discharged in violation of a clear mandate of public policy. The Court will grant summary judgment on the Plaintiffs' FMLA claims. Assuming that the Plaintiffs' FMLA claims are retaliation claims, the Court will grant summary judgment on their claims, because some of the Plaintiffs cannot establish a prima-facie case for FMLA retaliation, and because, although some of the Plaintiffs can establish a prima-facie case for FMLA retaliation, the Defendant City of Albuquerque (“the City of Albuquerque”) has set forth a legitimate non-retaliatory reason for the Plaintiffs' terminations, and those Plaintiffs have not established a genuine issue of fact whether that reason is pretextual. Assuming that the Plaintiffs' FMLA claims are interference claims, the Court will grant summary judgment on those claims, because the Plaintiffs have not established a genuine issue of fact whether the City of Albuquerque interfered with their rights to take FMLA leave. The Court will not grant summary judgment on Gonzales' FLSA claim, because Gonzales has established a genuine issue of material fact whether she falls within the executive exemption. The Court will deny the Plaintiffs' request that it enter declaratory judgment, because it finds that the Plaintiffs did not have a protected property interest in their continued employment, and it will grant summary judgment on the Plaintiffs' declaratory judgment claims.

FACTUAL BACKGROUND

The City of Albuquerque is a municipality and public employer. See, e.g., Complaint ¶ 3, at 2, filed May 27, 2010 (Doc. 1–1); Defendants' Amended Memorandum of Law in Support of Their Motion for Summary Judgment ¶ 2, at 2, filed July 27, 2010 (Doc. 65)(“Amended Memorandum”)(setting forth this fact); Plaintiffs' Response to Defendants' Motion for Summary Judgment at 2, filed September 7, 2010 (Doc. 71)(“Response”)(not controverting this fact). Defendant Ed Adams is the former Chief Administrative Officer (“CAO”) for the City of Albuquerque. See Complaint ¶ 3, at 2; Deposition of Esther Tenenbaum at 123:4–5, 123:10–11 (taken January 12, 2010), filed July 27, 2010 (Doc. 65–3); Amended Memorandum ¶ 2, at 2 (setting forth this fact); Response at 2 (not controverting this fact).

Gonzales and Plaintiffs Nicole Bordlemay, Nicole Foster, Yolanda Garcia, James Pescetti, Caroll Austin, Annette Mora, Sarah Clover, and Keri Waites are former employees of the City of Albuquerque's 311 Citizen Contact Center (“311 CCC”).¹See, e.g., Complaint ¶ 1, at 1, filed May 27, 2009 (Doc. 1–1); Amended Memorandum ¶ 1, at 1 (setting forth this fact); Response at 2 (not controverting this fact). Gonzales was a salaried supervisor at the end of her tenure with the 311 CCC, while the other eight Plaintiffs were hourly employees. See, e.g., Deposition of Antoinette Gonzales at 31:6–32:4 (taken October 13, 2010), filed July 27, 2010 (Doc. 65–1); Complaint ¶ 1, at 1; Amended Memorandum ¶ 1, at 1–2 (setting forth this fact); Response at 2 (not controverting this fact). Defendant Esther Tenenbaum is the 311 CCC Division Manager. See Complaint ¶ 3, at 2; Amended Memorandum ¶ 2, at 2 (setting forth this fact); Response at 2 (not controverting this fact).

1. 311 CCC Employees.

Section 3–1–6 of the City of Albuquerque's Merit System Ordinance provides in relevant part that the “unclassified service” shall be comprised of “any position designated as unclassified by the Chief Administrative Officer.” Merit System Ordinance § 3–1–6(C)(9), filed July 27, 2010 (Doc. 65–4). See Amended Memorandum ¶ 3, at 2 (setting forth this fact); Response at 2 (not controverting this fact). “Unclassified employees are employees at will and serve at the discretion of the [CAO].... Such employees shall have no property interest in continued unclassified employment and may be dismissed for any or no reason.” Merit System Ordinance § 3–1–6(D). See Amended Memorandum ¶ 5, at 2 (setting forth this fact); Response at 3 (not controverting this fact).

All employees of the 311 CCC are unclassified under the City of Albuquerque's Merit System.²See, e.g., Mora's City of Albuquerque Recommendation for Hire/Promotion Form at 1; Clover's City of Albuquerque Recommendation for Hire/Promotion Form at 1; Bordlemay's City of Albuquerque Recommendation for Hire/Promotion Form at 1; Foster's City of Albuquerque Recommendation for Hire/Promotion Form at; Garcia's City of Albuquerque Recommendation for Hire/Promotion Form at 1; Pescetti's City of Albuquerque Recommendation for Hire/Promotion Form at 1; Position Control Form (B–3), Ex. A; Position Control Form (B–3), Ex. B; Position Control Form (B–3), Ex. C; Mora's Employment Information Form at 1; City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65–10)(stating that Austin's employment status was unclassified, and containing Austin's signature) (“Austin's Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65–12)(stating that Clover's (formerly Broyles') employment status was unclassified and containing Clover's signature)(“Clover's Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65–14)(stating that Bordlemay's employment status was unclassified and containing Bordlemay's signature)(“Bordlemay's Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65–16)(stating that Foster's employment status was unclassified and containing Foster's signature) (“Foster's Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65–18)(stating that Garcia's employment status was unclassified and containing Garcia's signature)(“Garcia's Employment Information Form”); City of Albuquerque Employment Information Form, filed July 27, 2010 (Doc. 65–20)(stating that Pescetti's employment status was unclassified and containing Pescetti's signature)(“Pescetti's Employment Information Form”); Gonzales Depo. at 13:11–15:8 (stating that, at the new-hire training for 311 CCC employees that Gonzales attended, Padilla explained that 311 CCC employees were unclassified); Waites Depo. at 19:10–20:10 (stating that she signed a document which stated her employment status was unclassified when she began to work at 311 CCC). When the 311 CCC was first created, the City of Albuquerque decided that the 311 CCC employees would be unclassified.³See Herrera Decl. ¶ 7, at 1–2. The City of Albuquerque believed this status would allow the facility to operate like a private facility relative to wages, benefits, employee incentives, hiring, and discipline procedures. See Herrera Decl. ¶ 7, at 1–2; Tenenbaum Depo. at 33:14–24.⁴ The CAO designated positions at the 311 CCC as unclassified, as was within his discretion.⁵See Adams Decl. ¶ 3, at 2.

311 CCC employees handle calls from citizens of the city of Albuquerque who call 311.⁶See Tenenbaum Depo. at 34:22–35:5; Amended Memorandum ¶ 9, at 3 (setting forth this fact); Response at 4 (not controverting this fact). With unclassified employees, 311 CCC supervisors can use streamlined procedures to discipline or address employee infractions. See Tenenbaum Depo. at 33:14–34:11. This flexibility is needed, because of the unique aspects of the work performed at the 311 CCC.⁷See Tenenbaum Depo. 33:14–36:12.

2. The Plaintiffs' Employment at the 311 CCC.

a. Gonzales.

The 311 CCC employed Gonzales from March 2004 until September 2008. See Gonzales Depo. at 11:15–19; Amended Memorandum ¶ 10,...