Mirzai v. State of New Mexico General Services

• Decision Date: 30 March 2007
• Docket Number: No. CIV 06-0219 JB/LAM.,CIV 06-0219 JB/LAM.
• Citation: 506 F.Supp.2d 767
• Parties: Moghbel Sirus MIRZAI, Plaintiff, v. STATE OF NEW MEXICO GENERAL SERVICES DEPARTMENT, Defendant.
• Court: U.S. District Court — District of New Mexico

506 F.Supp.2d 767

Moghbel Sirus MIRZAI, Plaintiff, v. STATE OF NEW MEXICO GENERAL SERVICES DEPARTMENT, Defendant.

No. CIV 06-0219 JB/LAM.

United States District Court, D. New Mexico.

March 30, 2007.

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Gilbert J. Vigil, Albuquerque, New Mexico, for Plaintiff.

Josh A. Harris, Mark D. Trujillo, Beall Biehler, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant State of New Mexico General Services Department's Motion for Summary Judgment, filed December 28, 2006 (Doc. 11)("Motion for Summary Judgment"). The primary issues are: (i) whether Plaintiff Moghbel Mirzai has established a prima facie case of employment discrimination; (ii) whether Defendant New Mexico General Services Department ("GSD") breached an implied or express employment contract between itself and Mirzai; and (iii) whether GSD violated the implied covenant of good faith and fair dealing in its performance of an employment contract with Mirzai. Because the Court believes that there is no genuine issue of material fact in dispute on the federal claims, and that the factual record and all reasonable inferences therefrom, when considered in the light most favorable to Mirzai, do not establish that Mirzai suffered an adverse employment action under controlling law, the Court will grant the motion in part and enter summary judgment on GSD's behalf on all. Mirzai's federal claims. The Court will remand Mirzai's remaining state-law claims to the State of New Mexico First Judicial District.

FACTUAL BACKGROUND

Mirzai is a fifty-four year old male of Persian descent; he was born in Iran and came to the United States in 1974. See Plaintiff's Response to Defendant's Motion for Summary Judgment ¶ 1, at 3 (filed January 31, 2007)(Doc.13)("Mirzai's Response"); Mirzai's Response, Exhibit 1, Deposition of Moghbel Sirus Mirzai at 6:16-7:6 (taken August 18, 2006)("Mirzai's Deposition"). Mirzai began working for the GSD on April 10, 2004, with the working title of Project Manager. See Defendant State of New Mexico General Services Department's Memorandum in Support of their Motion for Summary Judgment ¶ 1, at 1, filed December 28, 2006 (Doc. 12)("Summary Judgement Memorandum"); Mirzai's Response ¶ 1, at 1. At all times relevant to his Complaint, Crystal Antoniades was the Property Control Division's Project Management Team Manager and Mirzai's immediate supervisor. See Summary Judgment Memorandum ¶ 2, at 2; Mirzai's Response ¶ 2, at 1. Bill Taylor, the Director of the GSD's Property Control Division, was Crystal Antoniades' immediate supervisor. See Summary Judgment Memorandum ¶ 3, at 2; Mirzai's Response ¶ 3, at 1.

Mirzai maintains that, in July 2004, Antoniades requested he contact Daryush Madani, the owner of Pars Construction, for an estimate related to a construction project involving a laboratory in Albuquerque. See Mirzai's Deposition at 25:2-11. Mirzai states that he complied with the instruction, but that he also informed Antoniades that Madani had previously completed some poor construction work for his niece and that he believed Pars Construction's license had been revoked. See id. at 26:1-6. Mirzai contends, based on information and belief, that Antoniades was involved in a close personal relationship with Madani. See Mirzai's Response ¶ 3, at 4.

On July 27, 2004, Madani sent a letter to Taylor alleging Mirzai had demanded kickbacks for the work Pars Construction performed for his niece, and suggesting that Madani was familiar with problems in Mirzai's construction education and experience. See Mirzai's Response, Exhibit 6, Letter from Daryush Madani to Bill Taylor at 1 (dated July 27, 2004). Madani also contended that Mirzai had not called him about the laboratory project in a timely fashion — as Antoniades had instructed — and that he was uncooperative in Pars Construction's inspection of the project site. See id. at 1-2.

On August 3, 2004, Antoniades issued Mirzai a written letter of reprimand for insubordination and inefficiency in violation of sections 6.2.2 and 6.2.3 of GSD's Code of Conduct. See Mirzai's Response, Exhibit 7, Memorandum from Crystal Antoniades to Moghbel Mirzai at 1-3 (dated August 3, 2004)("August 3, 2004 Reprimand"). In the August 3, 2004 Memorandum, Antoniades accused Mirzai of refusing to contact architects and engineers as instructed, and criticized him for ineffective and incompetent work. See id.

In addition to the letter of reprimand, on August 13, 2004, Antoniades placed Mirzai on a corrective action plan ("CAP") for the purpose of improving his performance. See Mirzai's Response, Exhibit 8, Memorandum from Crystal Antoniades to Sirus Mirzai at 1 (dated August 13, 2004)("CAP"). The CAP that Antoniades issued to Mirzai cited two areas requiring correction: (i) refusal to follow his supervisor's instructions; and (ii) inefficient, unproductive, untimely, and poorly completed work. See id. at 1. Mirzai refused to sign the CAP, and his refusal was noted on the memorandum. See id. at 2.

Later on August 13, 2004, Antoniades amended Mirzai's CAP to include a charge of incompetence and inability to perform in his position, and re-issued the CAP. See Mirzai's Response, Exhibit 9, Memorandum from Crystal Antoniades to Sirus Mirzai at 1 (dated 4:07 p.m. August 13, 2004)("Revised CAP"). Mirzai refused to sign the Revised CAP, and his refusal was noted on the memorandum. See Summary Judgment Memorandum ¶ 11, at 3; Mirzai's Response ¶ 11, at 3.

On August 17, 2004, Antoniades issued a Memorandum indicating that Mirzai could be subject to further disciplinary action, including dismissal, because he had failed to return his CAP by August 16, 2004, in accordance with previously given instructions. See Mirzai's Response, Exhibit 10, Memorandum for Record, from Crystal Antoniades to Sirus Mirzai at 1 (dated August 17, 2004)("August 17, 2004 Memorandum"). On September 22, 2004, Antoniades issued a written reprimand to Mirzai asserting Mirzai continued to fail to complete his CAP, and referencing a recent project that Antoniades alleged he handled inadequately and failed to complete. See Mirzai's Response, Exhibit 11, Memorandum from Crystal Antoniades to. Sirus Mirzai at 1 (dated September 22, 2004)("September 22, 2004 Reprimand").

In a letter dated November 11, 2004, Mirzai's attorney issued a Tort Notice to GSD; among other claims, the notice specifically cited discrimination, retaliation, breach of contract, and breach of the covenant of good faith and fair dealing as claims that Mirzai might bring against the GSD. See Mirzai's Response, Exhibit 3, Letter from Gilbert J. Vigil to State of New Mexico Risk Management Division at 1 (dated November 11, 2004)("Tort Notice").

Mirzai was transferred to the Property Management Team under the supervision of Mike Northrup on December 16, 2004. See Summary Judgment Memorandum ¶ 12, at 3; Mirzai's Response ¶ 15, at 6. Although Mirzai had previously received several notices of reprimand, and had a CAP imposed upon him, he did not lose any pay, was not demoted; and did not lose any other benefits. See Summary Judgment Memorandum ¶ 13, at 3; Mirzai's Response ¶ 13, at 3.

Mirzai represents that his attorney first submitted his case for intake to the New Mexico Human Rights Division ("HRD") on October 14, 2004, but because of intake and processing errors, the charge was not processed until July 7, 2005. See Mirzai's Response ¶ 2, at 3; Mirzai's Response, Exhibit 2, Charge of Discrimination at 1 (dated July 7, 2005)("Charge of Discrimination"). Mirzai's Charge of Discrimination alleges discrimination based on sex and national origin, and under a retaliation theory. See Charge of Discrimination at 1.

PROCEDURAL BACKGROUND

Mirzai filed this action against GSD on February 24, 2006 in the State of New Mexico First Judicial District. See Mirzai v. New Mexico Gen. Servs. Dep't, No. 101-CV-200600425 (N.M. First Jud. Dist. 2006), Complaint (docket available at www.nmcourts.com/caselookup) ("Complaint"). Mirzai's Complaint alleges three causes of action against GSD: (i) unlawful discrimination based on gender, national origin, age, and retaliatory discrimination in violation of Title VII of the Civil Rights Act of 1964, see id. at 8-9; (ii) breach of contract, see id. at 9; and (iii) breach of the implied covenant of good faith and fair dealing, see id. at 10. On March 23, 2006, GSD removed the action to federal court pursuant to 28 U.S.C. §§ 1331 and 1441(b). See Notice of Removal of State Court Action Pursuant to 28 U.S.C. §§ 1331, 1441(b) and 1446 and F.R.Civ.P. 81(c) on the Basis of a Federal Question, filed March 23, 2006 (Doc. 1).

GSD filed its motion for summary judgment on December 28, 2006. GSD asserts that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Motion for Summary Judgment at 1. GSD moves the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in its favor against Mirzai. See id. GSD also requests the Court grant it attorneys' fees and costs incurred in defending against this action as well as any other relief the Court deems proper. See id.

STANDARD FOR DECIDING SUMMARY JUDGMENT MOTIONS

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment has an "initial burden to show that there is an absence of evidence to support the nonmoving party's case." Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir.2000)...