Mascareñas v. City of Albuquerque

Decision Date07 February 2012
Docket NumberNo. 30,123.,30,123.
Citation2012 -NMCA- 031,274 P.3d 781
PartiesCarolyn MASCAREÑAS, Plaintiff–Appellant, v. CITY OF ALBUQUERQUE and Mike Torres, Parking Division Director, Defendants–Appellees.
CourtCourt of Appeals of New Mexico


Paul S. Livingston, Placitas, NM, for Appellant.

French & Associates, P.C., Paula I. Forney, Stephen G. French, Albuquerque, NM, for Appellees.



{1} After the City of Albuquerque's personnel board (the personnel board) determined that Defendant City of Albuquerque (the City) had just cause to terminate Plaintiff Carolyn Mascareñas, Plaintiff filed a single complaint in district court appealing the personnel board's decision and alleging constitutional, contract, and statutory claims against the City. Plaintiff appeals two district court orders in this case: (1) an order affirming the decision of the personnel board, determining that the City had just cause in terminating Plaintiff's employment with the City; and (2) an order dismissing Plaintiff's due process, breach of contract, and Family Medical Leave Act (FMLA) claims on the ground that the claims or the factual predicates of the claims were litigated in the prior personnel board proceedings. In this appeal, Plaintiff argues that (1) the personnel board's decision was arbitrary, not in accordance with the law, and not supported by the facts, and (2) the district court erred by dismissing Plaintiff's due process, breach of contract, and FMLA claims on preclusion grounds. We hold that (1) because Plaintiff did not file a timely petition for writ of certiorari pursuant to Rule 12–505 NMRA, we lack jurisdiction to consider Plaintiff's appeal of the personnel board's decision; and (2) the district court did not err in concluding that res judicata barred Plaintiff's breach of contract claim, and collateral estoppel precluded litigating the factual predicates of Plaintiff's due process and FMLA claims. Accordingly, we affirm.


{2} The City employed Plaintiff for more than seventeen years. She worked as a clerk for the City's Parking Division of the Municipal Development Department (the Department), which was managed by Mike Torres beginning in late 2004. Shortly after he took over the Department and continuing through 2005, Torres inflicted “progressive discipline” upon Plaintiff.

{3} On January 3, 2005, Torres gave Plaintiff an [o]fficial [v]erbal [w]arning” for late arrivals to work. Despite the verbal warning, Torres remained unsatisfied with Plaintiff, and Torres issued Plaintiff a pre-determination hearing notice on March 16, 2005, due to continued tardiness, abuse of her lunch hour, failing to call when arriving late or taking sick leave, and being late returning from appointments. After the hearing, the City issued Plaintiff a letter of reprimand on March 28, 2005, which was held in abeyance for three months. Plaintiff received another “verbal letter of reprimand” on June 10, 2005 for lunch break and work break abuse, patterns of absence on Mondays or Fridays, failure to begin work in a timely manner, and excessive personal use of the telephone. On August 2, 2005, Plaintiff's immediate supervisor, Shalene Andujo, gave Plaintiff another notice of predetermination hearing for similar problems with tardiness; failure to call when arriving late or sick, to obtain permission to work through her lunch hour, to submit proper forms when taking leave, and to process four checks that were found in envelopes on her desk; and other work performance issues related to processing traffic citations and warrants. After a hearing, the City issued Plaintiff a three-day suspension and sent Plaintiff and Andujo to mediation, which resulted in Plaintiff agreeing to arrive at her job on time and complete her assigned tasks.

{4} On August 14, 2005, Plaintiff submitted an application for leave under the FMLA to care for her husband and children due to her husband's disability. The leave was intermittent leave that was to be taken whenever her husband's condition worsened and needed to be approved on an as-needed basis. On September 2, 2005, the City's human resources department notified Plaintiff that it approved the FMLA leave retroactive to August 14, 2005.

{5} Plaintiff did not take any of the intermittent FMLA leave until the afternoon of September 26, 2005. Earlier that day, Plaintiff was issued a notice of investigation, claiming that Plaintiff “was being investigated for matters associated with her work.” Upon receiving the notice, Plaintiff became visibly upset and raised her voice in protest of the investigation. At roughly 2:00 p.m., Plaintiff left work after having placed a leave form on Andujo's desk without consulting her. Plaintiff did not return to work on September 27, 2005. On September 28, 2005, she told Andujo during a telephone conversation that she was on FMLA leave for September 26–28, and Andujo informed Plaintiff that she needed a doctor's note regarding her husband's condition for the days she was absent from work.

{6} On September 28, 2005, Plaintiff was hand delivered, at her home, a notice of predetermination hearing related to her work absence since September 26, 2005, her continued late arrivals to work, and her failure to call prior to her shift when she was late. Plaintiff did not appear for the hearing related to these charges scheduled for October 6, 2005, and the hearing was rescheduled for October 13, 2005. Plaintiff did not attend the rescheduled hearing, and it was held without her presence. At the conclusion of the hearing, the hearing officer recommended a fifteen-day suspension, which Plaintiff did not appeal to the personnel board.

{7} The human resources department sent Plaintiff a letter on October 10, 2005, requiring that Plaintiff submit, by October 11, 2005, medical information regarding her husband's condition in order to recertify her FMLA leave. Plaintiff did not provide any medical information to the human resources department.

{8} On October 21, 2005, Plaintiff was again given a notice of a pre-determination hearing set for October 29, 2005, concerning allegations that she was on unauthorized leave since September 26, 2005. Plaintiff presented a doctor's note at the hearing, stating that she should be excused from work on days her husband's condition flared up, but did not mention when or if his condition had recently flared up. The hearing resulted in Plaintiff receiving a fifteen-day suspension.

{9} The next day, on October 27, 2005, human resources director Pat Miller informed Plaintiff that her FMLA leave was cancelled due to a lack of medical documentation, retroactive to September 26, 2005. Plaintiff also received a hand-delivered letter on October 28, 2005, notifying her that her FMLA leave was cancelled and that she would be terminated if she did not report to work on October 31, 2005. After Plaintiff did not return to work on October 31, 2005, the Department Director, John Castillo, notified her that the City was terminating her employment.

{10} A post-termination hearing took place over a three-day period, in which Plaintiff argued that she was terminated without just cause. During the hearing, Plaintiff argued that she was a good and productive employee for seventeen years and that her problems with Torres and Andujo resulted from a longstanding grudge Torres had with Plaintiff's husband. Plaintiff also argued that the City failed to provide her with a performance evaluation and that her supervisors failed to refer the disciplinary actions taken against Plaintiff to the City's mediation coordinator, contrary to the City's merit system ordinance. See Albuquerque, N.M., Code of Ordinances, ch. 3, art. 1, §§ 3–1–1 to –28 (1978, as amended through 2010).

{11} The hearing officer concluded that the City did not give Plaintiff a performance evaluation, contrary to Section 3–1–9(C) of the merit system ordinance, and that the City failed to refer the disciplinary actions to the City's mediation coordinator, contrary to Section 3–1–23(C) of the merit system ordinance. However, the hearing officer concluded that both of these violations of the merit system ordinance by the City were harmless error. The hearing officer also found that Plaintiff failed to abide by the City's personnel rules and regulations, that the City provided appropriate progressive discipline, and that Plaintiff did not provide valid documentation to support her FMLA leave. Further, the hearing officer determined that the City properly notified Plaintiff to return to work on October 31, 2005 or be considered to have quit her job, that Plaintiff failed to return to work, and she had testified that she “did not return to work because she chose not to.” The hearing officer therefore concluded that just cause supported Plaintiff's termination. The personnel board upheld the recommendation of the hearing officer by a 3–1 vote.

{12} Plaintiff filed a complaint in district court on December 15, 2006, containing four claims. The first claim was a notice of appeal of the personnel board's decision (the administrative appeal), pursuant to Rule 1–074 NMRA and Section 3–1–25(F) of the merit system ordinance. Plaintiff subsequently filed a statement of appellate issues related to the administrative appeal, pursuant to Rule 1–074(K). The second, third, and fourth claims (the civil complaint) alleged that the City violated Plaintiff's due process rights; breached the implied employment contract consisting of the merit system ordinance, the City's personnel rules and regulations, and the collective bargaining agreement between the City and City employees; and abridged Plaintiff's rights under the FMLA.

{13} The City answered Plaintiff's complaint, filed a demand for a twelve-person jury for the civil complaint, and filed a response to Plaintiff's statement of appellate issues. Plaintiff subsequently filed a reply to the City's response. While the parties awaited the district court's decision on the...

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