Kelley v. City of Albuquerque
| Decision Date | 30 December 2004 |
| Docket Number | No. CIV. 03-0507 JB/ACT.,CIV. 03-0507 JB/ACT. |
| Citation | 375 F.Supp.2d 1183 |
| Parties | Judy K. KELLEY, Plaintiff, v. CITY OF ALBUQUERQUE, a municipal corporation, Robert M. White, and Martin J. Chavez, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Donald Sears, Steven K. Sanders, Albuquerque, NM, for the Plaintiff.
Kevin M. Brown, Daniel J. Macke, Brown & German, Albuquerque, NM, for the Defendants.
THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed February 2, 2004 (Doc. 31 and 32). The primary issue is whether Plaintiff Judy K. Kelley's participation as a defense lawyer in a mediation involving Title VII claims is protected activity under the statute. The Court held a hearing on this matter on July 12, 2004, and orally ruled that Title VII's plain language compelled the Court to find Kelley's actions protected conduct. Consistent with the Court's ruling at the hearing on this motion and the reasons for that ruling given at the time of the hearing, the Court will deny the Defendants' motion in part and grant the motion in part.
The City of Albuquerque ("the City") hired Kelley as an assistant city attorney in May, 1985. See First Amended Complaint ¶ 7, at 2, filed Sept. 11, 2003 (Doc. 18). The City employed Kelley for sixteen plus years through four administration changes. Kelley was an assistant city attorney under Mayors Harry Kinney, Ken Schultz, Louis Saavedra, Defendant Martin J. Chavez (first administration), and Jim Baca. See Declaration of Judy K. Kelley, Additional Facts ¶ 4, at 6-7 (executed February 9, 2004) ).
Kelley alleges that only the Chief Administrative Officer ("CAO") can terminate a city attorney's employment. See City of Albuquerque Ordinance §§ 3-1-2(B),(C)(2),(C)(3); id. § 3-1-6(D). The Albuquerque Charter prohibits the mayor from being involved in personnel matters except unclassified positions "directly responsible to the Mayor." Charter of the City of Albuquerque, Article X, § 2(b)("[T]he 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."). Although Chavez testified that he was not sure if the department heads have the power to hire and fire unclassified employees, see Martin J. Chavez' Deposition at 59:1-7 (taken December 17, 2003)(hereinafter "Chavez Depo."); id. at 20:24 — 21:6, he also stated that he believed the City Attorney has to consult with him before hiring and firing assistant city attorneys, see id. at 22:1-25, 26:12-18. Moreover, when asked if an assistant city attorney "serve[d] at the pleasure of the CAO and not the Mayor," Chavez responded that he did not know the technical answer to that question, but that "we all serve at the pleasure of the mayor." Chavez Depo. at 59:1-25. Chavez testified that he does not expect assistant city attorneys to "support" his philosophies, but only to work hard; however, he does expect department directors to "support" him. Chavez Depo. at 59:12-25; id. at 28:6-11; id. at 32:23-25; id. at 37:11-20.
The mayor hires the City Attorney with the city council's advice and consent. See Charter of the City of Albuquerque, Article V, § 4(d). The Charter provides:
The Mayor shall: .... (d) With the advice and consent of the Council, hire or appoint the City Attorney, an officer to administrator the merit system, and all other senior administrative or cabinet level officers of the city, including without limitations any chief, assistant or deputy administrative officers, and specify the duties and responsibilities of those officers;....
Id. See City of Albuquerque Ordinances § 2-7-2-3 (). The mayor also hires directors of all city departments. See Charter of the City of Albuquerque, at Chapter V, § 4(b); City of Albuquerque Ordinances § 1-1-5(B)(defining "Mayor" as "[t]he elected officer of the city who exercises administrative control and supervision over the city and hires or appoints directors of all city departments ...").
Under the City Personnel Ordinance, assistant city attorneys are unclassified employees of the City — which are at-will employees. See City of Albuquerque Personnel Rules and Regulations 306.2(D) at 300-11 (effective February 1, 2001); City of Albuquerque Ordinance § 3-1-6(D). As an unclassified employee, a city attorney is exempt only from the grievance portions of the City Ordinance. See Albuquerque Ordinance 3-1-6(E)("All employees in the unclassified service shall be entitled to all of the rights and benefits to which classified employees are entitled except the benefits provided for in [§] § 3-1-23, 3-1-24, 3-1-25....").
The City Attorney is a department director whom the mayor selects and the city council confirms. See id. ¶ 7, at 7. The City Attorney reports directly to the CAO and the mayor. See id. If Kelley was working on any legal matter in which the CAO or mayor had an interest, she gave information to the City Attorney and he used that information to advise the CAO and mayor. See id.
According to Kelley, the City of Albuquerque has formally granted only the City Attorney the power to advise the Mayor and the Council as to legal matters. See City of Albuquerque Ordinances §§ 2-7-2-1, 2-7-2-2. Section 2-7-2-1 states: "The executive and administrative head of the Legal Department shall be the City Attorney." Section 2-7-2-2 states: Kelley contends that a reasonable reading of this ordinance is that the City Attorney or his assistants may represent the City in the courts, but the City Attorney advises the mayor and the Council.
City attorneys provide legal advice on all issues concerning development and implementation of city policy, including policies relating to housing, land use, code enforcement, utility franchises, contracts, and city personnel, as well as the powers of the city council and the mayor's office. See Affidavit of Bob White ¶¶ 2, 4 at 1 (executed Jan. 27, 2004)(hereinafter "White Aff."). City attorneys advise all of the city's policymakers, including the mayor, city council, department directors, boards, and commissions. See id. ¶ 3, at 1; Deposition of Robert M. White at 22:14 — 23:9 (taken January 27, 2004)(hereinafter "White Depo."); Kelley Decl. Add. Facts ¶ 6, at 7. Kelley notes that Robert M. White, City Attorney for the City of Albuquerque and Director of the Legal Department, states in his affidavit that the attorneys advise the policymakers, not that the attorneys are the policymakers. See Declaration of Judy K. Kelley ¶ 8, at 2 (executed Feb. 9, 2004)(hereinafter "Kelley Decl."); White Aff. ¶ 2, at 1; City of Albuquerque Ordinances §§ 2-7-2-2, 2-7-2-3 (). Although Assistant city attorneys provide legal advice, Kelley contends that legal advice is not policymaking. See Kelley Decl. ¶ 7, at 2. Kelley alleges that the legal advice that the city attorneys give is no different than the advice that a corporate attorney gives her client; it is still the CEO, president, or board of directors who are the policymakers by deciding what to do with the advice. See id.
Kelley alleges that all the City Attorneys for whom she worked frequently reminded the assistant city attorneys that they are not policymakers. See Kelley Decl. Add. Facts ¶ 6, at 7. Kelley alleges that White consistently took the position that assistant city attorneys are limited to providing legal advice and are not to become involved in policymaking. See id. Kelley also contends that White frequently stated that any policymaking that came from the City Attorney's office would come from him, not the assistant city attorneys. See id.
Kelley contends that, as an assistant city attorney, she gave legal advice on a variety of issues, but primarily on personnel issues. See id. ¶ 8, at 7. Kelley usually gave advice to mid-level managers. See id. Occasionally, she advised a department director. See id. Kelley rarely gave legal advice to, or had a meeting with, the CAOs under whom she served. See id.; id. at ¶ 5, at 7. Kelley did not give legal advice directly to a mayor. See id. at ¶ 2, 7 at 5-6, 7.
Kelley was one of some thirty attorneys in the office of the city attorney. See Kelley Decl. Add. Facts ¶ 1, at 5. The head of the litigation department, John Pope, selected Kelley for the position of assistant city attorney in 1985. See Kelley Decl. Add. Facts ¶ 4, at 6. The City Attorney, Human Resources Director, and CAO approved her hiring. See id. During that hiring process, Kelley met with only two individuals, Pope and then-City Attorney Gary O'Dowd. See id. She did not meet with the mayor at the time, Harry Kinney, when she was hired, nor did Kinney sign Kelley's hiring papers. See id.
Kelley alleges that she had minimal contact with the Albuquerque mayors during her employment. See Kelley Decl. Add. Facts ¶ 5, at 6. Kelley alleges that her relationship with all mayors, including Chavez, was not as part of the mayor's personal staff. See id. ¶ 4, at 6. Nor did any mayor appoint her to a policymaking position or to be an immediate advisor to...
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