Salazar v. City of Albuquerque

• Decision Date: 27 October 2014
• Docket Number: No. CIV 10-0645 JB/ACT,CIV 10-0645 JB/ACT
• Citation: Salazar v. City of Albuquerque, No. CIV 10-0645 JB/ACT (D. N.M. Oct 27, 2014)
• 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.

PAUL SALAZAR, Plaintiff, v. CITY OF ALBUQUERQUE, RICHARD BERRY, Mayor, ROBERT J. PERRY,Chief Administrative Officer, VINCENT YERMAL, Director of Human Resources,MARTIN CHAVEZ, formerMayor, GREG PAYNE, former Transit Dept.Director, andBRUCE RIZZIERI, Transit Dept.Director, Defendants.

No. CIV 10-0645 JB/ACT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 27, 2014

MEMORANDUM OPINION¹

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 PlaintiffPaul 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.

FACTUAL BACKGROUND

On September 23, 2004, Salazar was indicted for criminal sexual penetration of a child under thirteen.SeeDefendants 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), filedOctober 31, 2012(Doc. 78-8);Plaintiff's Response to Defendant's Motion for Summary Judgmentat 1-12, filedNovember 26, 2012(Doc. 83)("Response")(not disputing this fact).²On 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.SeeMSJ Memo. ¶ 32, at 8(setting forth this fact); Plea and Disposition Agreement, State v. Salazar, No. D-1329-CR-2004-0423 (N.M.D.-Ct. Oct. 11, 2006), filedOctober 31, 2012(Doc. 78-8)("Plea Agreement");Responseat 1-12(not disputing this fact).On October 11, 2006, a judgment and order of conditional discharge wasentered.SeeMSJ Memo. ¶ 33, at 8(setting forth this fact); Judgment and Order of Conditional Discharge, State v. Salazar, No. D-1329-CR-2004-0423 (N.M.D.-Ct. Oct. 11, 2006), filedOctober 31, 2012(Doc. 78-8);Responseat 1-12(not disputing this fact).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.SeeMSJ Memo. ¶ 34, at 8-9(setting forth this fact);Affidavit of Annette Paez¶ 10, at 3, filedOctober 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");Responseat 1-12(not disputing this fact).

On July 6 or 9,³2007, the Transit Department terminated Salazar from his position as a bus driver for the city of Albuquerque.SeeMSJ Memo. At ¶ 1, 3(setting forth this fact);Affidavit of Vincent A. Yermal, Director of Human Resources for the City of Albuquerque¶ 7, at 2, filedOctober 31, 2012(Doc. 78-1)("Yermal Aff.");Interoffice Memorandum from Annette S. Paez, Operations Division Manager, to Paul Salazar, Motor Coach Operatorat 1(delivered July 6, 2007), filedOctober 31, 2012(Doc. 78-1)("Paez Memo.");Responseat 1-12(not disputing this fact).On July 17, 2007, Salazar appealed his termination.SeeMSJ Memo. ¶ 1,at 3(setting forth this fact);YermalAff. ¶ 8, at 2;Letter from Paul Livingston to Dr. Bruce Perlman, Chief Administrative Officer for the City of Albuquerqueat 1(delivered July 17, 2007), filedOctober 31, 2012(Doc. 78-1);Responseat 1-12(not disputing this fact).On June 11, 2008, the City Personnel Board adopted the Personnel Hearing Officer's recommendations, reinstating Salazar to his position as a bus driver.SeeMSJ Memo. ¶ 1, at 3(setting forth this fact);YermalAff. ¶ 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, filedJune 29, 2012(Doc. 48)("Amended Complaint");Responseat 1-12(not disputing this fact).

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.SeeMSJ Memo. ¶ 2, at 3(setting forth this fact);YermalAff. ¶ 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");Responseat 1-12(not disputing this fact).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.SeeMSJ Memo. ¶ 2, at 3-4(setting forth this fact);Huling Decisionat 1;YermalAff. ¶ 10, at 2;Amended Complaint, ¶ 22, at 5;Responseat 1-12(not disputing this fact).On February 11, 2009, the Personnel Board remanded the case to the Personnel Hearing Officer.SeeMSJ Memo. ¶ 3, at 4(setting forth this fact);YermalAff. ¶ 11, at 2;Responseat 1-12(not disputing this fact).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.SeeMSJ Memo. ¶ 4, at 4(setting forth this fact);YermalAff. ¶ 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");Responseat 1-12(not disputing this fact).On August 12, 2009, the Personnel Board upheld the Personnel Hearing Officer's recommendation to reinstate Salazar.SeeMSJ Memo. ¶ 5, at 4(setting forth this fact);YermalAff. ¶ 13, at 3;Amended Complaint¶ 23 at 5;Responseat 1-12(not disputing this fact).

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.SeeMSJ Memo. ¶ 6, at 4(setting forth this fact);YermalAff. ¶ 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;Responseat 1-12(not disputing this fact).On August 16, 2010, the City of Albuquerque withdrew its appeal.SeeMSJ Memo. ¶ 7, at 4(setting forth this fact);City of Albuquerque v. Salazar, No. D-202-CV-200910465, Motion to Withdraw(N.M.D.-Ct. Aug. 16, 2009)(caselookup.nmcourts.gov);Responseat 1-12(not disputing this fact).On August 28, 2010, the City of Albuquerque reinstated Salazar to a position as a bus driver with the Transit Department.SeeMSJ Memo. ¶ 8, at 4(setting forth this fact);YermalAff. ¶ 15, at 3;City of Albuquerque Personnel Action: Rehire, filed October 31, 2012(Doc. 78-1);Responseat 1-12(not disputing this fact).On August 30, 2010, the City of Albuquerque gave Salazar notice to appear for a CommercialDriver's License ("CDL") physical.SeeMSJ Memo. ¶ 9, at 4(setting forth this fact);YermalAff. ¶ 16, at 3;Amended Complaint¶ 34, at 9;Responseat 1-12(not disputing this fact).

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.SeeMSJ Memo. ¶ 10, at 4-5(setting forth this fact);YermalAff. ¶ 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;Responseat 1-12(not disputing this fact).On September 13, 2010, through his attorney, Salazar declined the transfer to Solid Waste.SeeMSJ Memo. ¶ 11, at 5(setting forth this fact);YermalAff. ¶ 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...