Salazar v. City of Albuquerque
| Decision Date | 27 October 2014 |
| Docket Number | No. CIV 10-0645 JB/ACT,CIV 10-0645 JB/ACT |
| Court | U.S. District Court — District of New Mexico |
| Parties | PAUL SALAZAR, Plaintiff, v. CITY OF ALBUQUERQUE, RICHARD BERRY, Mayor, ROBERT J. PERRY, Chief Administrative Officer, VINCENT YERMAL, Director of Human Resources, MARTIN CHAVEZ, former Mayor, GREG PAYNE, former Transit Dept. Director, and BRUCE RIZZIERI, Transit Dept. Director, Defendants. |
THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed October 31, 2012 (Doc. 77)("MSJ"). The Court held a hearing on August 20, 2013. The primary issues are: (i) whether Plaintiff Paul Salazar acted dilatory in not conducting discovery; (ii) whether the Plaintiff's Counsel's Declaration Under Penalty of Perjury, filed November 26, 2012 (Doc. 83-1)("Declaration"), states with specificity how additional discovery will rebut the MSJ; (iii) whether Salazar received an adequate name-clearing hearing; (iv) whether Salazar can show that the Defendants' alleged defamatory statements occurred in the course of his termination or foreclosed employment opportunities; (v) whether there is a constitutional cause-of-action for defamation; and (vi) whether the Court should retain supplemental jurisdiction over Salazar's state law claims after dismissing all of his federalclaims. Because Salazar was dilatory in not conducting discovery, because the Declaration does not adequately specify how additionally discovery will help Salazar rebut the MSJ, because Salazar received an adequate name-clearing hearing to defeat his stigma-plus claim, because Salazar has not shown that the Defendants' statements were made in the course of his termination or foreclosed employment opportunities, because there is no constitutional defamation cause-of-action, and because the Court should not exercise supplemental jurisdiction over Salazar's state law claims, the Court will grant the MSJ in part and deny it in part. The Court will grant the MSJ as to Salazar's stigma-plus claim. The Court will decline to exercise supplemental jurisdiction over Salazar's remaining state law claims and will dismiss them without prejudice.
On September 23, 2004, Salazar was indicted for criminal sexual penetration of a child under thirteen. See Defendants Memorandum in Support of Motion for Summary Judgment ¶ 31, at 8, filed October 31, 2012 ("MSJ Memo.")(setting forth this fact); Grand Jury Indictment, State v. Salazar, No. D-1329-CR-04-0423, (N.M.D.-Ct. Sept. 23, 2004), filed October 31, 2012 (Doc. 78-8); Plaintiff's Response to Defendant's Motion for Summary Judgment at 1-12, filed November 26, 2012 (Doc. 83)("Response")(not disputing this fact).2 On October 11, 2006,Salazar entered a no contest plea to a fourth degree felony: attempt to commit criminal sexual contact of a minor child, under the age of thirteen. See MSJ Memo. ¶ 32, at 8 (); Plea and Disposition Agreement, State v. Salazar, No. D-1329-CR-2004-0423 (N.M.D.-Ct. Oct. 11, 2006), filed October 31, 2012 (Doc. 78-8)("Plea Agreement"); Response at 1-12 (). On October 11, 2006, a judgment and order of conditional discharge wasentered. See MSJ Memo. ¶ 33, at 8 (); Judgment and Order of Conditional Discharge, State v. Salazar, No. D-1329-CR-2004-0423 (N.M.D.-Ct. Oct. 11, 2006), filed October 31, 2012 (Doc. 78-8); Response at 1-12 (). On February 27, 2007, an officer from the State Probation and Parole Division delivered a notice to the City of Albuquerque Transit Department, informing the Department that Salazar was a convicted sex offender and that he had been adjudicated guilty of attempted sexual conduct of a minor. See MSJ Memo. ¶ 34, at 8-9 (); Affidavit of Annette Paez ¶ 10, at 3, filed October 31, 2012 (Doc. 78-5)("Paez Aff."); Letter from Chris James, Probation-Parole Officer, to Employer (delivered Feb. 27, 2007), filed October 31, 2012 (Doc. 78-5)("Probation Letter"); Response at 1-12 ().
On July 6 or 9,3 2007, the Transit Department terminated Salazar from his position as a bus driver for the city of Albuquerque. See MSJ Memo. At ¶ 1, 3 (); Affidavit of Vincent A. Yermal, Director of Human Resources for the City of Albuquerque ¶ 7, at 2, filed October 31, 2012 (Doc. 78-1)("Yermal Aff."); Interoffice Memorandum from Annette S. Paez, Operations Division Manager, to Paul Salazar, Motor Coach Operator at 1 (delivered July 6, 2007), filed October 31, 2012 (Doc. 78-1)("Paez Memo."); Response at 1-12 (). On July 17, 2007, Salazar appealed his termination. See MSJ Memo. ¶ 1,at 3 (); Yermal Aff. ¶ 8, at 2; Letter from Paul Livingston to Dr. Bruce Perlman, Chief Administrative Officer for the City of Albuquerque at 1 (delivered July 17, 2007), filed October 31, 2012 (Doc. 78-1); Response at 1-12 (). On June 11, 2008, the City Personnel Board adopted the Personnel Hearing Officer's recommendations, reinstating Salazar to his position as a bus driver. See MSJ Memo. ¶ 1, at 3 (); Yermal Aff. ¶ 9, at 2; In re Paul Salazar, PB-07-08 (Albuquerque Pers. Bd. June 11, 2008)(adopting Personnel Hearing Officer's recommendation), filed October 31, 2012 (Doc. 78-1)("First Board Decision"); First Amended Complaint for Violation of Statutory, Contractual, and Constitutional Rights ¶ 16, at 4, filed June 29, 2012 (Doc. 48)("Amended Complaint"); Response at 1-12 ().
The City of Albuquerque appealed the Personnel Board's findings to State District Court, pursuant to rule 1-074 of the New Mexico Rules of Civil Procedure. See MSJ Memo. ¶ 2, at 3 (); Yermal Aff. ¶ 10, at 2; City of Albuquerque v. Salazar, No. CV 2008-06817, Memorandum Opinion and Order (N.M.D.-Ct. Jan. 7, 2009), filed October 31, 2012 (Doc. 78-4)("Huling Decision"); Response at 1-12 (). On January 7, 2009, the Honorable Valerie A. Huling, District Judge, Div. XII, Second Judicial District Court, State of New Mexico, remanded the case to the Personnel Board to consider, and enter findings and conclusions, regarding whether the City of Albuquerque had just cause to terminate Salazar's employment regardless of the predetermination hearing's due-process violations. See MSJ Memo. ¶ 2, at 3-4 (); Huling Decision at 1; Yermal Aff. ¶ 10, at 2; Amended Complaint, ¶ 22, at 5; Response at 1-12 (). On February 11, 2009, the Personnel Board remanded the case to the Personnel Hearing Officer. See MSJ Memo. ¶ 3, at 4 (); Yermal Aff. ¶ 11, at 2; Response at 1-12 (). OnJuly 2, 2009, the Personnel Hearing Officer found that the City of Albuquerque did not meet its burden of proof to demonstrate that Salazar was discharged for just cause, and the Personnel Hearing Officer reaffirmed Salazar's reinstatement. See MSJ Memo. ¶ 4, at 4 (); Yermal Aff. ¶ 12, at 2-3; In re Paul Salazar, (Remand) PB 07-08 (Albuquerque Personnel Hearing Officer July 2, 2009), filed October 31, 2012 (Doc. 78-1)("Hearing Officer's Second Recommendations"); Response at 1-12 (). On August 12, 2009, the Personnel Board upheld the Personnel Hearing Officer's recommendation to reinstate Salazar. See MSJ Memo. ¶ 5, at 4 (); Yermal Aff. ¶ 13, at 3; Amended Complaint ¶ 23 at 5; Response at 1-12 ().
On August 31, 2009, the City of Albuquerque filed a notice of appeal to the state District Court, pursuant to rule 1-074 of the New Mexico Rules of Civil Procedure. See MSJ Memo. ¶ 6, at 4 (); Yermal Aff. ¶ 14, at 3; City of Albuquerque v. Salazar, No. D-202-CV-200910465, Notice of Lower Court Appeal (N.M.D.-Ct. Aug. 31, 2009)(caselookup.nmcourts.gov); Amended Complaint ¶ 24, at 6; Response at 1-12 (). On August 16, 2010, the City of Albuquerque withdrew its appeal. See MSJ Memo. ¶ 7, at 4 (); City of Albuquerque v. Salazar, No. D-202-CV-200910465, Motion to Withdraw (N.M.D.-Ct. Aug. 16, 2009)(caselookup.nmcourts.gov); Response at 1-12 (). On August 28, 2010, the City of Albuquerque reinstated Salazar to a position as a bus driver with the Transit Department. See MSJ Memo. ¶ 8, at 4 (); Yermal Aff. ¶ 15, at 3; City of Albuquerque Personnel Action: Rehire, filed October 31, 2012 (Doc. 78-1); Response at 1-12 (). On August 30, 2010, the City of Albuquerque gave Salazar notice to appear for a CommercialDriver's License ("CDL") physical. See MSJ Memo. ¶ 9, at 4 (); Yermal Aff. ¶ 16, at 3; Amended Complaint ¶ 34, at 9; Response at 1-12 ().
On September 9, 2010, Salazar was administratively transferred to the position of Clean City Operator with the Solid Waste Management Department ("Solid Waste"), and was ordered to report to work at Solid Waste on September 13, 2010. See MSJ Memo. ¶ 10, at 4-5 (); Yermal Aff. ¶ 17, at 3; Interoffice Memorandum from David S. Campbell, Chief Administrative Officer, to Paul Salazar (delivered Sept. 9, 2010), filed October 31, 2012 (Doc. 78-2); Interoffice Memorandum from Eugene J. Moser, Director of Human Resource Department, to David S. Campbell, Chief Administrative Officer (delivered Sept. 9, 2010), filed October 31, 2012 (Doc. 78-2); Amended Complaint ¶ 36, at 9; Response at 1-12 (). On September 13, 2010, through his attorney, Salazar declined the transfer to Solid Waste. See MSJ Memo. ¶ 11, at 5 (); Yermal Aff. ¶ 18, at 3; Letter from Paul Livingston to David Campbell, Chief Administrative Officer (delivered Sept. 13, 2010), filed October 31, 2012 (Doc. 78-2); Amended Complaint ¶ 39, at...
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