Rodriguez v. N.M. Dep't of Workforce Solutions

Decision Date19 April 2012
Docket NumberNo. 30,726.,30,726.
Citation2012 -NMCA- 059,278 P.3d 1047
PartiesMaria RODRIGUEZ, Plaintiff–Appellant, v. NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, Defendant–Appellee.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Law Offices of E. Justin Pennington, E. Justin Pennington, Albuquerque, NM, for Appellant.

Sandenaw Law Firm, P.C., CaraLyn Banks, Las Cruces, NM, for Appellee.

OPINION

SUTIN, Judge.

{1} This appeal pits the New Mexico Personnel Act against the New Mexico Human Rights Act on the question of which law is controlling when a discharged probationary state employee with no property interest in continuing employment seeks relief under the Human Rights Act for sex and age discrimination. The district court dismissed the employee's Human Rights Act claim on the ground that, under the Personnel Act, the State agency was permitted to terminate the probationary employee's employment without cause even if the termination was based on sex or age discrimination. We disagree and hold that the employee can pursue a claim under the Human Rights Act.

BACKGROUND

{2} Plaintiff Maria Rodriguez was hired by Defendant New Mexico Department of Workforce Solutions (the Department) first as a temporary employee and then as a probationary employee. While she was a probationary employee, she was given a notice of dismissal from her position pursuant to the New Mexico Personnel Act, NMSA 1978, § § 10–9–1 to –25 (1961, as amended through 2009).

{3} Under the Personnel Act, ‘employee’ means a person in a position ... who has completed his probationary period[.] Section 10–9–3(I). A probationary employee is referred to as a “probationer,” meaning “a person ... who is still in the probationary period for that position.” Section 10–9–3(J). State Personnel Board Regulation 1.7.1.7(CC) NMAC (3/31/2006) (amended 10/15/2008) states that “probationer” means “an employee in the classified service who has not completed the one-year probationary period.” And 1.7.11.11 NMAC (11/14/2002), as it relates to probationers, states that [p]robationers ... may be suspended, demoted, or dismissed effective immediately with written notice and without right of appeal to the board.”

{4} Following her discharge, Plaintiff filed a claim with the New Mexico Department of Labor, Human Rights Division and the Equal Employment Opportunity Commission against the Department alleging discrimination and retaliation based on her sex and age. After exhaustion of her administrative remedies, Plaintiff filed a notice of appeal and complaint in the district court asserting discrimination and retaliation under the New Mexico Human Rights Act, NMSA 1978, §§ 28–1–1 to –15 (1969, as amended through 2007). See § 28–1–10(A), (D), (J) (setting out grievance procedures); § 28–1–13 (setting out appeal procedure).

{5} The Department filed a motion for summary judgment, asserting that, because Plaintiff was a probationary employee and therefore had no property interest in continuing employment, the court lacked jurisdiction to consider Plaintiff's constitutional claims. In its memorandum in support of its motion, the undisputed facts upon which the Department relied for summary judgment were: (1) Plaintiff was hired on a temporary basis to fill a ninety-day position; (2) Plaintiff willingly accepted temporary and part-time employment and her exclusions from the Public Employee Retirement Benefit Association (PERA); (3) Plaintiff was selected for a second ninety-day part-time temporary position and again willingly accepted the temporary, part-time position and exclusions from PERA benefits; (4) Plaintiff later accepted a temporary position for an additional thirty days or until a permanent position was filled; (5) Plaintiff was then hired on a full-time basis to fill an administrative position; and (6) during her probationary period, Plaintiff was notified of her dismissal.

{6} In its summary judgment documents, the Department pointed to no particular “constitutional claims.” Its “concise statement” of the issues was that the district court “lack[ed] jurisdiction to consider Plaintiff's claim as Plaintiff was a probationary employee for all times pertinent to this litigation and therefore has no property interest in continued employment with [the] Department[.] The court granted the Department's motion for summary judgment based on findings that Plaintiff was a probationary employee at the time her employment was terminated and that the Department was permitted to terminate Plaintiff's employment without cause during her probationary period.

{7} Plaintiff appeals from the summary judgment in the Department's favor. On appeal, Plaintiff argues that the district court erred in concluding that the protections against discrimination and retaliation contained in the Human Rights Act do not apply to probationary employees of the State of New Mexico who have been discharged pursuant to the Personnel Act. We agree with Plaintiff.

DISCUSSION

{8} No factual issues are disputed. We review the grant of the motion for summary judgment de novo. Beggs v. City of Portales, 2009–NMSC–023, ¶ 10, 146 N.M. 372, 210 P.3d 798. The critical issue is one of first impression. The issue as stated by the Department is whether the district court had jurisdiction to consider discrimination and retaliation claims asserted under the Human Rights Act when a probationary state employee claimant who is discharged under the Personnel Act has no property interest in continuing employment.

{9} The Department primarily bases its lack of jurisdiction position on two federal cases involving claims under 42 U.S.C. § 1983 (1996). See Lighton v. Univ. of Utah, 209 F.3d 1213, 1221 (10th Cir.2000) (stating that § 1983 claims are actionable only where the employee possesses a property or liberty interest in the employment); Russillo v. Scarborough, 935 F.2d 1167, 1170, 1174 (10th Cir.1991) (affirming the district court's grant of summary judgment in favor of the employer as to the plaintiff's § 1983 claim because, as an “at-will” employee, the plaintiff had no protected property interest in his employment).

{10} Tied into Russillo, the Department relies on Lovato v. City of Albuquerque, 106 N.M. 287, 742 P.2d 499 (1987), a mandamus action seeking to require the defendant to grant a hearing on the merits of the plaintiff's transfer and pay reduction. The language on which the Department relies from Lovato, and which was contained in Russillo, 935 F.2d at 1170, is the statement that the plaintiff's “employment status was a protected property interest only if he had an express or implied right to continued employment.” Lovato, 106 N.M. at 289–90, 742 P.2d at 501–02.

{11} In addition, the Department relies on Cockrell v. Bd. of Regents of N.M. State Univ., 1999–NMCA–073, 127 N.M. 478, 983 P.2d 427.Cockrell involved a claim for damages under 42 U.S.C. § 1983, a defense of qualified immunity, and an issue of whether the plaintiff was deprived of a property interest without due process of law when his employment was terminated. Id. ¶ 3. The Court in Cockrell stated:

The key dispute under the [employee] [m]anual is whether [the employee] was still a probationary employee at the time of his termination. Probationary employees have no expectancy of continued employment and may be terminated without cause and without procedural protections such as notice and a hearing. Non-probationary employees, on the other hand, do have such an expectancy in that they can only be discharged for good cause and by way of due process grievance procedures. There is no dispute that if [the employee] was still a probationary employee at the time of his termination, then his discharge satisfied the [m]anual. However, if by then, he was more than a mere probationary employee, then it is equally settled that he did not receive the protections owed him under the [m]anual. More importantly, for purposes of this appeal, as a non-probationary employee [the employee] would have an expectancy of continued employment which cannot be eliminated arbitrarily without due process of law.

Id. The Department further relies on Clark v. Children, Youth & Families Dep't, 1999–NMCA–114, 128 N.M. 18, 988 P.2d 888, a decision that solely involved a probationary employee's status under the Personnel Act, and also relying on Lovato, 106 N.M. at 289, 742 P.2d at 501, for the proposition that Plaintiff cannot state a substantive claim for relief because she did not have a property interest in continuing employment.

{12} The Department also attempts to squeeze in an argument that a probationary state employee cannot state a claim under the Human Rights Act because the Department's termination action is based on a “statutory prohibition” created by the Personnel Act and excluded from the definition of discriminatory practice under the Human Rights Act. See § 28–1–7(A) (stating that it is an unlawful discriminatory practice for an employer “to discharge ... or to discriminate ... against any person otherwise qualified because of race, age, religion, color, [or] national origin ...” unless the employer's action is “based on a bona fide occupational qualification or other statutory prohibition”). The statutory prohibition, according to the Department, is the composite of provisions in the Personnel Act that distinguish an employee from a probationary employee, that permit a probationary employee to be discharged without cause, and that forbid the discharged probationary employee any appeal right. Sections 10–9–3(I), (J); 1.7.2.8 NMAC (7/15/2005); 1.7.11.11 NMAC. Thus, the Department argues that to allow a probationary employee to bring a cause of action under the Human Rights Act is contrary to the Personnel Act's limitation on a probationary employee's right to make a claim for wrongful discharge. According to the Department, allowing a probationer to bring a cause of action under the Human Rights Act is contrary to Section 28–1–7(A)'s exclusion of “other statutory prohibition”...

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