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 the Opposed Motion to Dismiss, or, in the alternative, Motion for Summary Judgment by the City of Albuquerque, Richard J. Berry, Robbery Perry and Bruce Rizzieri and Memorandum in Support, filed June 18, 2014 (Doc. 17)("Motion"). The Court held a hearing on March 17, 2015. The primary issues are: (i) whether collateral estoppel bars McGrath's due process and equal protection claims against the City of Albuquerque, Richard Berry, Robert Perry, and Bruce Rizzieri (collectively, the "City Management Defendants"); (ii) whether the Court should grant summary judgment in favor of the City Management Defendants on McGrath's due process and equal protection claims; (iii) whether McGrath asserts a plausible claim under the Fourth Amendment of the Constitutionof the United States that Berry, Perry, and Rizzieri unlawfully searched him through the City of Albuquerque's random suspicionless drug-testing program for municipal bus drivers or whether McGrath has provided any evidence to support his Fourth Amendment claim; (iv) whether McGrath has shown that the City of Albuquerque has a policy or custom that directly caused its employees to violate McGrath's constitutional rights; and (v) whether the Court should remand McGrath's remaining state-law claims to the Second Judicial District Court, County of Bernalillo, State of New Mexico. First, the Court cannot determine whether collateral estoppel bars McGrath's due process and equal protection claims. Second, Count 1 of the Complaint for Violation of Statutory and Constitutional Rights, filed in state court January 9, 2014, filed in federal court May 27, 2014 (Doc. 1-1)("Complaint") which contains McGrath's due process and equal protection claims does not state a plausible claim, and McGrath has presented no evidence to support his allegations. Third, Count 3 does not state a plausible Fourth Amendment unlawful search claim against Rizzieri, Berry, and Perry, and no evidence supports McGrath's allegations. Fourth, McGrath has not shown that the City of Albuquerque had a policy or custom that directly caused its employees to violate McGrath's constitutional rights. Fifth, the Court will remand McGrath's remaining state-law claims against the City Management Defendants. The Court will grant the Motion in part and deny it in part. The Court will dismiss with prejudice McGrath's federal claims against the City Management Defendants, and remand McGrath's state-law claims to the Second Judicial District Court.
This case is about an alleged unlawful termination. The Court will first outline the Complaint's allegations. Next, the Court will provide the undisputed facts from the Motion.
The Court will set forth the Complaint's allegations in four parts. First, the Court will explain the parties to this action. Second, the Court will describe the City of Albuquerque Transit Department's disciplinary action against McGrath. Third, the Court will detail the City of Albuquerque's Appeal of the Hearing Officer's decision to reinstate McGrath's employment. Fourth, and finally, the Court will explain the City of Albuquerque's Merit System.
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 classified2 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 histermination, and on September 26, 2008, City of Albuquerque Personnel Hearing Officer Patrick Bingham "heard testimony." Complaint ¶ 8, at 2. Mr. 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"3 the Policy, however, the Personnel Board remanded the case to Mr. 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[4] . . . 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 (internal quotation marks omitted). "NMTU[5] 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 thusremanded 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,"6 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 job functions); (2)(harm public respect) and (3)(impair the operation or efficiency of any City department).
Complaint ¶ 14, at 3 n.1.
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 the his 2008 drug-testing violation. Complaint ¶ 16, at 4 (internal quotation marks omitted). When Rizzieri terminated McGrath's employment a secondtime, 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 because 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."7 Complaint ¶ 18, at 4 (internal quotation marks omitted).
Mr. 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 Mr. 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 StatesDistrict Court for the District of New Mexico, contending that, ...
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