Leach v. New Mexico Junior College, No. 20

Citation45 P.3d 46, 132 N.M. 106, 2002 NMCA 39
Case DateFebruary 19, 2002
CourtCourt of Appeals of New Mexico

45 P.3d 46
132 N.M. 106
2002 NMCA 39

Donnie "Don" Ray LEACH, Plaintiff-Appellee,
NEW MEXICO JUNIOR COLLEGE, et al., Defendants-Appellants

Nos. 20,770, 21,745.

Court of Appeals of New Mexico.

February 19, 2002.

Certiorari Denied April 5, 2002.

45 P.3d 48
Steven K. Sanders, Law Offices of Steven K. Sanders, Albuquerque, NM, for Appellee

Mark Terrence Sanchez, Gary Don Reagan, P.A., William G.W. Shoobridge, Shoobridge Law Firm, P.C., Hobbs, NM, for Appellants.

Certiorari Denied, No. 27,411, April 5, 2002.



{1} In this civil rights action claiming retaliatory termination from employment for exercising First Amendment rights, Defendants, the New Mexico Junior College (NMJC), its Board, and several of its officials, appeal from two orders partially denying their motions for summary judgment. Although the district court's orders are only partly favorable to his interests, Plaintiff Don Leach has not filed a cross-appeal. We address the following issues: (1) whether the district court improperly determined that NMJC is not an "arm of the state" such that its agents are not entitled to immunity from suit under the Eleventh Amendment; (2) whether the district court erred in partially denying Defendants' defense of qualified immunity; (3) whether Leach impermissibly failed to exhaust his administrative remedies; (4) whether Defendants should have been granted immunity from liability pursuant to NMSA 1978, § 21-1-18 (1957); and (5) whether the district court erred in concluding that Leach's claims involve speech on a topic of "public concern." We affirm.


{2} The following facts are pertinent to this appeal, and appear to be undisputed. Leach was employed at NMJC in a variety of capacities for over sixteen years. Throughout most of that period, he was a member of the NMJC administration. His duties varied

45 P.3d 49
over the years, including oversight of the area vocational high school, the public information and marketing section, the college bookstore, the continuing education program, and the small business development center

{3} Campus security was added to Leach's responsibilities in August 1996. After investigating the status of security and discipline at NMJC, Leach held a meeting on November 5, 1996 in order to discuss the matter with other members of the NMJC administration and staff. In a nutshell, Leach asserted that discipline was lax and NMJC was insufficiently dedicated to security as a whole. Defendant Charles Hays, who was president of NMJC at that time, disagreed strongly with Leach's position. The meeting adjourned after a heated exchange.

{4} On November 6, 1996, Hays drafted and sent a letter to the state legislature proposing to reduce the NMJC budget by eliminating Leach's position. Shortly thereafter, Hays informed Leach that he intended to recommend eliminating his position. On January 15, 1997, Hays made his recommendation, and the NMJC Board approved it. Pursuant to the grievance procedures outlined in the NMJC employee handbook, Leach appealed from the Board's decision, claiming that he was terminated in violation of his First Amendment right to freedom of speech.

{5} During the pendency of his appeal, Leach met with staff from the Hobbs News Sun to inform them about his concerns regarding campus security and disciplinary policies. Additionally, he reported possible misuse or misappropriation of college assets by Hays. The newspaper investigated these allegations and published several articles about them in mid-March. At about this time, Hays was placed on administrative leave, and the newspaper also published that information. Shortly thereafter, Leach spoke with officers from the Hobbs Police Department and the Lea County Sheriff's Department, which were also conducting investigations into the state of affairs at NMJC.

{6} On May 23, 1997, the NMJC Board held a hearing on Leach's appeal. The Board postponed its decision until June 9, 1997, at which time it concluded that Leach's constitutional right to freedom of speech had been violated. In accordance with the employee handbook, Leach was offered a new contract as coordinator of the small business development center. Apparently, this position represented a demotion in the administrative hierarchy from the directorship that he formerly held.

{7} On December 9, 1997, the NMJC Board met to consider annual contract renewals. On the recommendation of the acting president, the Board voted not to renew Leach's contract. The official reason for the termination reported to the Department of Labor was "lack of work." However, after Leach's termination, NMJC restored the position of director of the small business development center and named two people to fill the position jointly. Leach applied for numerous other positions with NMJC, including Director of Continuing Education, which department had been under his supervision while Leach was Dean of Administrative Services. He received neither an interview nor any offer.

{8} Leach did not appeal his second termination to the Board. Instead, he filed a civil rights action in district court pursuant to 42 U.S.C. § 1983 (1994 & Supp. V 1999), alleging that his employment was terminated in January and December of 1997 in retaliation for exercising his First Amendment rights. Defendants first filed a motion for summary judgment on the grounds of failure to exhaust administrative remedies, failure to establish that constitutionally protected speech was at issue, qualified immunity from suit, and statutory immunity from liability. On September 2, 1999, the district court denied summary judgment on Defendants' qualified immunity defenses, denied summary judgment for the remaining claims, and granted Plaintiff additional time to respond to an Eleventh Amendment claim of immunity raised in Defendants' reply. On October 4, 1999, Defendants petitioned for a writ of error, which this Court granted. The parties subsequently requested that the case be remanded to the district court for further development of the record. On August 16, 2000, the district court ruled on Defendants' motion for summary judgment rejecting the

45 P.3d 50
Eleventh Amendment immunity claim and granting in part and denying in part Defendants' claims of qualified immunity. Defendants then applied for interlocutory appeal. We granted Defendants' application and consolidated both appeals

Standard of Review

{9} "Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992); accord Rule 1-056(C) NMRA 2002. The court must resolve all reasonable inferences in favor of the non-movant and must view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in a light most favorable to a trial on the merits. See Carrillo v. Rostro, 114 N.M. 607, 615, 845 P.2d 130, 138 (1992). For Defendants' immunity defenses, after we have reviewed the evidence in Plaintiff's favor, we ascertain whether the evidence is sufficient to sustain Plaintiff's claim as against Defendants' claim of immunity. See Campos de Suenos, Ltd. v. County of Bernalillo, 2001-NMCA-043, ¶ 10, 130 N.M. 563, 28 P.3d 1104. We review de novo the district court's application of the law to the evidence in arriving at its legal conclusions. Id.

{10} We first consider Defendants' defenses of immunity from suit. Although there were some procedural complexities with the appeal, we treat Defendants' contentions of qualified immunity and Eleventh Amendment immunity as before us pursuant to a writ of error. See id. ¶ 8. Because we hold that Defendants are not immune from suit, we then turn to the remaining issues, treating them as before us pursuant to an interlocutory appeal.

Eleventh Amendment Immunity

{11} Defendants contend that NMJC is an "arm of the state" for Eleventh Amendment purposes, such that they are not to be regarded as "persons" subject to suit under Section 1983. The Eleventh Amendment protects state agencies and their officials acting in their official capacities from suits for damages. Whittington v. State Dep't of Pub. Safety, 2000-NMCA-055, ¶¶ 3-5, 129 N.M. 221, 4 P.3d 668; Doe v. Leach, 1999-NMCA-117, ¶¶ 9-12, 128 N.M. 28, 988 P.2d 1252. The Eleventh Amendment protects the state not only from liability, but more importantly, from the very burden of litigation. Campos de Suenos, Ltd., 2001-NMCA-043, ¶ 15, 130 N.M. 563, 28 P.3d 1104. Although we review evidence in the light most favorable to a trial on the merits for appeals from summary judgment, a defense of Eleventh Amendment immunity requires that a plaintiff "affirmatively overcome the assertion of immunity." Id. ¶ 16.

{12} Daddow v. Carlsbad Municipal School District, 120 N.M. 97, 898 P.2d 1235 (1995), sets forth the guiding principles and frames the analysis. If NMJC is properly characterized as a "local governing body with specific discretionary powers and duties," it is to be regarded as a "person" subject to suit under Section 1983, and "it is not a true `arm of the state' [such that it is] not entitled to the state's Eleventh Amendment protections." Daddow, 120 N.M. at 101-02, 898 P.2d at 1239-40.

{13} We apply a three-factor analysis derived from Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (which we will refer to as Mt. Healthy in conformity with our Supreme Court's previous usage in Daddow ). We consider: "(1) what the state law calls the entity; (2) whether the entity has political and financial autonomy; and (3) whether the entity operates like a political subdivision." Daddow, 120 N.M. at 103, 898 P.2d at 1241.

{14} The first factor yields a somewhat mixed result. NMJC is not designated as a state educational institution, university, or college in Article XII, Section 11 of the New Mexico Constitution, as are...

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