McGrath v. City of Albuquerque
| Decision Date | 31 July 2015 |
| Docket Number | No. CIV 14-0504 JB/SCY,CIV 14-0504 JB/SCY |
| Parties | MICHAEL MCGRATH, Plaintiff, v. CITY OF ALBUQUERQUE; CITY PERSONNEL BOARD; RICHARD BERRY, Mayor; ROBERT PERRY, Chief Administrative Officer; BRUCE RIZZIERI, Transit Dept. Director; and PAULA FORNEY, Attorney, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on: (i) Defendant Paula I. Forney's Motion to Dismiss, filed June 4, 2014 (Doc. 14)("MTD"); and (ii) the Plaintiff's Motion to Remand, filed June 26, 2014 (Doc. 20)("MTR"). The Court held a hearing on March 17, 2015. The primary issues are: (i) whether the Court should remand this case to state court, given the failure of Defendants City of Albuquerque, City of Albuquerque Personnel Board, Mayor Richard Berry, Robert Perry, and Bruce Rizzieri (the "City Defendants") to personally sign the notices of removal of this case to federal court; and (ii) whether the Court should dismiss Plaintiff MichaelMcGrath's claims against Defendant Paula Forney in the Complaint for Violation of Statutory and Constitutional Rights, filed in state court on January 9, 2014, filed in federal court on May 27, 2014 (Doc. 1-1)("Complaint"). The Court will not remand this case to state court, because all of the Defendants in this case properly consented to the removal through their attorneys. The Court will dismiss all of McGrath's claims against Forney without prejudice, because McGrath did not respond to the MTD, and because he failed to timely serve Forney a copy of the Complaint. Accordingly, the Court will deny the MTR and grant the MTD in part.2
This is for an alleged unlawful termination. The Court takes its facts from the Complaint, as it must when ruling on a motion under rule 12(b)(6) of the Federal Rules of Civil Procedure.
McGrath is a resident of Albuquerque, New Mexico, and the City of Albuquerque Transit Department employed him as a bus driver. See Complaint ¶ 1, at 1. Perry is the City of Albuquerque's Chief Administrative Officer and "primary policy-maker." Complaint ¶ 2, at 1. Rizzieri is the Director of the Transit Department. See Complaint ¶ 2, at 1. Forney is a former Assistant City Attorney "who now contracts with the City to represent the City and City officials." Complaint ¶ 3, at 1. The Personnel Board "is supposed to consist of five members, two selected by the Mayor and two by a vote of City employees, who select a neutral chairperson," but the "current [Personnel] Board is missing one of its employee members and only has four members." Complaint ¶ 4, at 2.
McGrath was a full-time classified3 bus driver for the City of Albuquerque when the Defendants terminated his employment "under the City's zero-tolerance drug testing policy [(the 'Substance Abuse Policy')] on February 25, 2008." Complaint ¶ 7, at 2. McGrath appealed his termination, and on September 26, 2008, City of Albuquerque Personnel Hearing Officer Patrick Bingham "heard testimony." Complaint ¶ 8, at 2. Bingham recommended upholding McGrath's termination for just cause, because McGrath violated the Substance Abuse Policy. See Complaint ¶ 8, at 2. Because of concerns about the City of Albuquerque's "failure to negotiate"4 the Policy, however, the Personnel Board remanded the case to Bingham "for determination of whether the City and its Unions had reached impasse prior to the imposition by the City of the revised 2006 [Substance Abuse Policy]." Complaint ¶ 9, at 2 (internal quotation marks omitted). "The Hearing Officer subsequently did nothing and the Personnel Board took no action." Complaint ¶ 9, at 2.
"The City Labor Board[5] . . . had previously concluded that[,] when the City attempted to re-implement its zero-tolerance penalty the parties[,] were not at [an] impasse, but that the City had negotiated over drug testing penalties in good faith." Complaint ¶ 10, at 3 (internalquotation marks omitted). "NMTU[6] appealed the good faith conclusion to the State district court." Complaint ¶ 10, at 3. In November, 2009, the Honorable Valerie A. Huling, District Judge, Second Judicial District, County of Bernalillo, State of New Mexico, "reversed the Labor Board, finding the City . . . neither negotiated in good faith nor to the point of impasse." Complaint ¶ 11, at 3 (citation omitted)(internal quotation marks omitted). Judge Huling thus remanded the matter to the Labor Board "to make appropriate findings and conclusions and to provide appropriate relief." Complaint ¶ 11, at 3 (citation omitted)(internal quotation marks omitted).
In December, 2009, "the [Mayor] Berry Administration disbanded the Labor Board and there were no more meetings of the Labor Board until June, 2011." Complaint ¶ 12, at 3. McGrath's termination case was still pending before Bingham when Forney, Perry, "Ennen,"7 and Rizzieri generated a "Notice of Reinstatement" and a new "Pre-determination Hearing Notice." Complaint ¶ 13, at 3 (internal quotation marks omitted). The Pre-determination Hearing Notice re-charged McGrath with his 2008 drug-testing violation and added the following charges:
Ms. Forney and M[r]. Rizzieri additionally accused McGrath of violations of Rule 301.1 (Duty to the Public); 301.2 (Professional Excellence); 301.3 (Standards of Conduct); 301.8 (Safety); 311 (Alcohol/Drug Possession and Consumption); and 902.1 (Reasons for Disciplinary Actions) (C)(Incompetence, inefficiency or inadequate performance of duties); (G)(Misconduct); (K)(Violation of Substance Abuse Policy); and (M)(Other disciplinary reasons): (1)(Call into question employees ability to perform assigned duties or jobfunctions); (2)(harm public respect) and (3)(impair the operation or efficiency of any City department).
On August 6, 2010, Rizzieri approved new findings, "including the false contention that McGrath was impaired while driving a City of Albuquerque bus." Complaint ¶ 15, at 4 (internal quotation marks omitted)(emphases omitted). Although McGrath "had not been returned to work, was represented by counsel, and was challenging his termination," Forney, Perry and Rizzieri again terminated McGrath for his 2008 drug-testing violation. Complaint ¶ 16, at 4 (internal quotation marks omitted). When Rizzieri terminated McGrath's employment a second time, Rizzieri knew "that the positive test result had been more than two years before and that McGrath had been fired then." Complaint ¶ 17, at 4. Rizzieri did not consider the length of time that had passed since McGrath's 2008 failed drug test in making his termination decision, because "a positive test is a positive test[,]" and he thought that it would "set a bad precedent that anyone could test positive for cocaine, have a less than exemplar[y] record, and still keep [his] position as a bus driver." Complaint ¶ 17, at 4 (internal quotation marks omitted).
On February 8, 2011, the City of Albuquerque issued a "Supplement to Substance Abuse Policy" ("Supplement") to clarify the Substance Abuse Policy. Complaint ¶ 18, at 4. The Supplement explained that "[t]he Second Judicial district court invalidated the discipline provisions of the 2006 Substance Abuse Policy" and clarified that, until a new Substance Abuse Policy is enacted, the City of Albuquerque would "apply the 2006 policy but will apply the discipline procedures in the 1999 policy."8 Complaint ¶ 18, at 4 (internal quotation marks omitted).
Bingham held another hearing on McGrath's termination, "and this time recommended reinstatement to City employment with back pay and benefits." Complaint ¶ 19, at 4. The Personnel Board accepted Bingham's recommendation, but modified it to provide that the City of Albuquerque would "reinstate McGrath to a non-safety sensitive position." Complaint ¶ 19, at 4 (internal quotation marks omitted).
On July 28, 2011, Forney appealed the Personnel Board's decision to the Second Judicial District Court, and on September 30, 2011, she filed the "City's Statement of Appellate Issues." Complaint ¶ 20, at 5. On November 21, 2011, Forney removed the appeal to the United States District Court for the District of New Mexico, contending that, "for the first time in the City's appeal, McGrath alleged that his constitutional rights were violated, that the City violated his right to due process and that the City's actions in terminating McGrath were oppressive and unfair." Complaint ¶ 21, at 5. Forney argued that McGrath could have brought a claim that his "due process and constitutional rights were allegedly violated in either state or federal court"; alternatively, he "could have asserted a claim under 28 U.S.C. Sec. 1983 asking for reinstatement." Complaint ¶ 22, at 5 (internal quotation marks omitted). "Instead," Forney asserted, he "elected to raise his constitutional claims before the state district court in responding to the City's Statement of Appellate Issues." Complaint ¶ 22, at 5 (internal quotation marks omitted). The United States District Court for the District of New Mexico held that Forney's removal of the case to federal court "was without an objective basis," and "remanded the case to the State district court and awarded sanctions against Ms. Forney."9 Complaint ¶ 24, at 5.
The Personnel Board "did nothing to enforce its reinstatement Order and did not oppose the City's appeal of the Personnel Board's decision to reinstate McGrath." Complaint ¶ 25, at 5 (internal quotation marks omitted). While the case was still in federal court, Forney filed a "Notice of Supplemental Authority" that "consist[ed] of a ruling by Judge Beatrice Brickhouse, a State district judge, on the case of Reginald Adolph, another City bus driver." Complaint ¶ 26, at 6. Neither Forney nor Judge Brickhouse disclosed that, "before she became a district judge, Beatrice Brickhouse was an Assistant City Attorney and co-counsel with Paula Forney on the...
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