Hardeman v. City of Albuquerque

• Decision Date: 05 August 2004
• Docket Number: No. 03-2017.,No. 03-2001.,03-2001.,03-2017.
• Parties: Marsha K. HARDEMAN, Plaintiff-Appellee/Cross-Appellant, v. CITY OF ALBUQUERQUE; Jim Baca, Mayor; and Theresa Trujeque, in their individual and official capacities, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1106

377 F.3d 1106

Marsha K. HARDEMAN, Plaintiff-Appellee/Cross-Appellant, v. CITY OF ALBUQUERQUE; Jim Baca, Mayor; and Theresa Trujeque, in their individual and official capacities, Defendants-Appellants/Cross-Appellees.

No. 03-2001.

No. 03-2017.

United States Court of Appeals, Tenth Circuit.

August 5, 2004.

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Appeal from the United States District Court for the District of New Mexico, Bobby R. Baldock, Circuit Judge.

Eric Sirotkin, Legal Counseling Services, Albuquerque, NM, for Plaintiff-Appellee/Cross-Appellant.

M. Karen Kilgore, White, Koch, Kelly & McCarthy, P.A., Santa Fe, NM, for Defendants-Appellants/Cross-Appellees.

Before HENRY, HOLLOWAY, and O'BRIEN, Circuit Judges.

HENRY, Circuit Judge.

Marsha Hardeman filed this action against the City of Albuquerque; the former Mayor, Jim Baca; and her former supervisor, city employee Theresa Trujeque, alleging violations of her First and Fourteenth Amendment rights and seeking damages under 42 U.S.C. §§ 1981 and 1983. Specifically, Ms. Hardeman alleged 1) that she was terminated from her employment as a Department Director of the Albuquerque Convention Center because of her race and/or because she exercised her First Amendment free speech rights; 2) that she was subjected to disparaging public comments and/or denied a post-termination contract in retaliation for her association with African-American groups; and 3) that her due process liberty interests were violated.

The district court dismissed Ms. Hardeman's liberty interest claim on defendants' motion for judgment as a matter of law; all other claims were submitted to a jury. The jury found in favor of Ms. Hardeman on the remaining claims, except the claim that she was discharged because of her race. Following the trial, the defendants filed a Motion for Judgment as a Matter of Law pursuant to Rule 50(b) and a Motion for a New Trial, Remittitur, and to Alter or Amend the Judgment pursuant to Rule 59. The court denied the Rule 50(b) motion, denied in part and granted in part the Rule 59 Motion, and entered an amended judgment reducing the punitive damages against the Mayor on two of the verdicts. The defendants now appeal, and we affirm.

I. BACKGROUND

As of December 1, 1997, plaintiff Marsha Hardeman, who is African-American, was appointed to the position of Department Director of the Albuquerque Convention Center by the newly elected Mayor Jim Baca. She was a cabinet-level, exempt employee who served at the pleasure of the Mayor.

Beginning in the spring of 1998, Ms. Hardeman was involved in three incidents that led her to criticize or question the actions of the Baca Administration and her supervisor, Theresa Trujeque. Ms. Hardeman claims that her criticism of the administration and of fellow city employees led to her discharge, that her expression of opinion on these matters constituted protected speech, and that the defendants violated her First Amendment rights by discharging her as a result of her speech. In addition to her discharge claim, Ms. Hardeman claims that she was later subjected to disparaging public comments and denied a post-termination contract that was promised to her because of her perceived association with African-American groups.

The first speech-related incident leading to Ms. Hardeman's discharge began when the Convention Center's contracts with Ms. Hardeman's church were selected for auditing. Ms. Hardeman questioned the decision to audit the contracts in a May 14, 1998, e-mail to Debra Yoshimuro, the Director of the Office of Internal Audit. Her e-mail asked: "What is going on? Am I suspected of some kind of unethical conduct. [sic] Someone had to have specifically alerted your staff-otherwise, why [is] MY church, of all the local groups we work with on a repeat customer basis, under scrutiny?" Aplts' App. vol. I, at 267. Ms. Hardeman subsequently drafted a memo to Ms. Yoshimuro expressing concern that the methods of identifying clients for the audit could "create the appearance of de facto discrimination," and that by "only Black clients [being] targeted by the auditors... [it] can discourage or thwart efforts to cultivate business within a minority segment of the community." Id. at 219. Ms. Hardeman also expressed her frustration over the audit in an August 16, 1998, e-mail to the City's Chief Administrative Officer, Lawrence Rael. Id. at 224.

The second incident stemmed from the disciplining of Convention Center employee Doug Reed. Defendant Theresa Trujeque allegedly disciplined Mr. Reed by yelling at him and pointing her finger in his face. She later reported Mr. Reed to Ms. Hardeman, who was Mr. Reed's supervisor at the time, and told Ms. Hardeman that she wanted Mr. Reed to be fired. Ms. Hardeman sent Mr. Reed home for several days without pay, but she did not fire him or discipline him further. Ms. Hardeman testified that her investigation of the matter revealed that Ms. Trujeque had pointed her finger at Mr. Reed and yelled, "You people. I'm sick and tired of you people thinking you are in charge of something," Aplts' App. vol. II, at 676, and that she believed that Ms. Trujeque's actions toward Mr. Reed, who is African-American, were racially motivated.

According to Ms. Hardeman's testimony, Mr. Reed "specifically responded to [Ms. Trujeque's action] as though it was an affront to him as a black man." Id. The incident left Ms. Hardeman "concerned about another case now where [her] boss, a high ranking city official, had acted inappropriately ... with an employee, a black person." Id. She criticized Ms. Trujeque's handling of the incident in an e-mail to Ms. Trujeque which she also forwarded to Mr. Rael. The e-mail asserted that Ms. Trujeque's alleged finger-pointing would be "considered by many legalists to be `provoking behavior.'" Aplts' App. vol. I, at 220.

The final speech-related incident leading up to Ms. Hardeman's termination concerned an alleged attempt by Ms. Trujeque to threaten a city vendor, the general manager of "Fine Host" catering. The catering manager, Mr. Thorson, had witnessed the incident between Ms. Trujeque and Mr. Reed. Ms. Trujeque wrote to Ms. Hardeman saying that she "hope[d] Martin [Thorson] from Fine Host is not involving himself in this issue since I understand from Special Events Staff that he interfered where he shouldn't have and caused alot [sic] of this [sic] problems." Id. at 223. Ms. Hardeman interpreted Ms. Trujeque's statement as an apparent threat to Mr. Thorson, whose catering company was involved in the contract renewal process at the time. Consequently, Ms. Hardeman reported Ms. Trujeque's conduct to Mr. Rael, expressing her concern that the apparent threat could reflect negatively on the fairness of the contract renewal process. She sent Mr. Rael an e-mail saying, "if Theresa appears to be threatening the caterer's General Manager too____eeeee!" Aplts' App. vol. I, at 224.

Following these three incidents, all of which took place between May and August of 1998, Mayor Baca directed Mr. Rael to ask for Ms. Hardeman's resignation. She resigned as of September 4, 1998. The Mayor instructed Mr. Rael to offer Ms. Hardeman a post-termination contract, the terms of which Mr. Rael negotiated with Ms. Hardeman, for approximately $40,000, under which she would provide training to city employees for a five — to seven-month period to facilitate her transition out of city government. After Mr. Rael made the initial proposal of a contract, the onus apparently was on Ms. Hardeman to draft a contract and present it to Mr. Rael. Ms. Hardeman testified that she drafted a proposed contract and sent it to Mr. Rael, through his secretary, for his signature. Aplts' App. vol. II, at 687-89. Mr. Rael testified that he did not recall receiving an inquiry from Ms. Hardeman about the contract, id. at 518, and he never signed the document.

Ms. Hardeman's discharge elicited a strong response from members of the local African-American community. Shortly after she was forced to resign, an NAACP official and several African-American ministers wrote letters to the Mayor and the press suggesting that Mayor Baca had effectively alienated the African-American community and made them feel unwelcome. See, e.g., Aplts' App. vol. I, at 237 (Letter from the New Mexico Chapter of the NAACP, dated Oct. 5, 1998) ("It is a sad commentary to note that in just the past few weeks, our State's largest, most diverse city, has systematically erased the visible presence of its Black constituents."). Additionally, a group of African-American ministers and others held a press conference expressing their outrage over Ms. Hardeman's discharge and questioning the Mayor's commitment to diversity.

Mayor Baca testified that he "became a little bit upset" when he saw the news conference, Aplts' App. vol. III, at 1079, as he believed that the participants in the conference were accusing him of being a racist. He also believed that he saw Ms. Hardeman standing in the background at the press conference, though he "later acknowledged that the woman he saw at the conference only had a black face and looked like [Ms. Hardeman.]." Aplts' App. vol. I, at 187 (Dist. Ct. Order Denying Rule 50 Motion, filed Nov. 25, 2002). Ms. Hardeman "testified she never encouraged anyone to object to her discharge and was not involved in the letter writing campaign or press conference." Id. Following the controversial press conference, Mayor Baca called Ms. Hardeman at her home and left a message stating:

Hi, Marsha. This is Jim Baca. I'm really disappointed [in] what you've done. I think you owe me an apology. I think it's just tragic that you've stooped to this. Good-bye.

Aplts' App. vol. II, at 701. Ms. Hardeman also alleges that Mayor Baca "began a campaign of false and disparaging public statements to the news media against [her]." Aple's Br. at 5. She contends that the campaign was still going on four years later, when the...