Salazar v. City of Albuquerque

Decision Date28 March 2011
Docket NumberNo. CIV 10–0645 JB/ACT.,CIV 10–0645 JB/ACT.
Citation776 F.Supp.2d 1217
PartiesPaul SALAZAR, Plaintiff,v.CITY OF ALBUQUERQUE, Martin Chavez, former Mayor, Richard Berry, Mayor, Greg Payne, former Transit Dept. Director, Defendants.
CourtU.S. District Court — District of New Mexico

OPINION TEXT STARTS HERE

Paul Livingston, Placitas, NM, for Plaintiff.Robert J. Perry, City Attorney, Peter H. Pierotti, Michael I. Garcia, Assistant City Attorneys, City of Albuquerque, Albuquerque, NM, for Richard J. Berry and the City of Albuquerque.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Plaintiff's Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed August 10, 2010 (Doc. 3) (“Motion”). The Court held a hearing on October 27, 2010. The primary issues are: (i) whether the Court should dismiss Plaintiff Paul Salazar's procedural due-process, substantive due-process, and breach-of-employment-contract and duty-of-good-faith-and-fair-dealing claims, because he has failed to set forth allegations that, taken as true, establish those claims; (ii) whether the New Mexico Tort Claims Act, NMSA 1978, §§ 41–4–1 to –29 (“NMTCA”) has waived liability for defamation and malicious-abuse-of-process claims; and (iii) whether the Court should dismiss Salazar's punitive damages Count. The Court grants in part and denies in part the Motion. The Court dismisses Salazar's procedural due-process claim, because the Defendants' appeal of the Personnel Board's decision did not violate his procedural due-process rights. The Court dismisses Salazar's common-law tort claims, other than his claims that are based on Defendant Transit Department Director Greg Payne's post-employment comments, because the NMTCA does not waive the Defendants' immunity for defamation and malicious abuse of process. The Court dismisses Salazar's breach-of-employment-contract and duty-of-good-faith-and-fair-dealing claim, because the Charter of the City of Albuquerque does not prohibit the mayor from commenting on any matter of public concern that involves an employment decision, because Salazar has not shown the City Charter was incorporated into his employment contract, and because the Defendants did not breach his contract or their duty when they exercised their statutory right to appeal. The Court denies the Defendants City of Albuquerque's and Mayor Richard J. Berry's request to dismiss Salazar's liberty-interest claim, because Salazar has adequately set forth factual allegations showing that the alleged defamatory statements were made in the course of Salazar's termination and because reinstatement does not moot Salazar's claim. Although punitive damages may be available under Salazar's surviving claims, the Court dismisses Salazar's punitive damages Count, because punitive damages are not a stand alone claim.

FACTUAL BACKGROUND

Salazar was a tenured full-time City employee. See Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed July 8, 2010 (Doc. 1) (“Complaint”). Salazar began working as a City bus driver on March 25, 2000. See id. ¶ 8, at 2. He was continuously employed until February 28, 2007, when the Transit Department placed him on leave with pay pending investigation. See id. ¶ 8, at 2.

The City of Albuquerque terminated Salazar's employment for reasons connected with the allegation that he was a sex offender and a child molester. Salazar's ex-wife had accused him “of improperly touching their 4–year–old daughter during a court-approved Father's Day weekend visitation in 2001.” Complaint ¶ 9, at 3. Salazar maintains that these allegations are false.

On October 11, 2006, Salazar pled “no contest” to the charge of attempted touching of his daughter, and the state court entered its Judgment and Order of Conditional Discharge, which stated that “without adjudication of guilt” the charges against him would be dismissed “pursuant to this Conditional Discharge.” Complaint ¶ 10, at 3. Salazar maintains his innocence. On February 27, 2007, a State Parole Officer delivered a letter to the Transit Department stating that “your employee, Paul Salazar, is a convicted sex offender and/or is under the supervision of the Probation–Parole Division for a sexual offense. He has been adjudicated guilty of the following crime(s): Attempted Sexual Contact of a Minor.” Complaint ¶ 11, at 3. On July 9, 2007, categorizing him as “a convicted sex offender,” the City of Albuquerque terminated Salazar's employment with the City of Albuquerque. Complaint ¶ 13, at 3.

The City of Albuquerque unsuccessfully attempted to defend its actions in a Personnel Board hearing. On June 11, 2008, after a three-day evidentiary hearing, the Personal Board found that Salazar was terminated without just cause. See Complaint ¶ 14, at 3. The Personnel Board ordered the City of Albuquerque to reinstate Salazar with back pay and benefits, and to expunge Salazar's disciplinary infraction from his record. See Complaint ¶ 14, at 3.

Salazar alleges that Payne and Defendant Mayor Martin Chavez refused to reinstate Salazar; instead, they publicly and repeatedly called Salazar a “sex offender” and a “child molester,” and announced that they would not reinstate him. Complaint ¶ 15, at 4. The Albuquerque Journal reported that, on June 17, 2008, Chavez stated:

[H]e plans to appeal the personnel board's ruling. If he loses, Chavez said, he will take the matter to court. “This guy is not going to be around kids. Not while I am mayor,” Chavez said. “This is outrageous. What parent wants their kid on a bus with someone like that?”

Complaint ¶ 16, at 4 (quoting T. Wilham, City Must Rehire Sex Offender Bus Driver, Albuquerque J., June 18, 2008 at A1). The same article quotes Payne as stating:

There is no question if he drives a bus he will have contact with children. The public would recoil if we hired someone like this. It's almost as if the crime didn't happen. I don't know how someone could reach this conclusion unless they are in a bubble and detached from reality.

Complaint ¶ 18, at 4 (quoting Wilham, supra ).

The City of Albuquerque unsuccessfully appealed the Personnel Board's ruling to the Second Judicial District Court of New Mexico. On January 7, 2009, the Honorable Valerie M. Huling, New Mexico District Court Judge, affirmed the Personnel Board's decision on due-process grounds, but remanded the case back to the Personnel Board to determine whether the City of Albuquerque had just cause to terminate Salazar's employment “irrespective of the ... due process violations.” Complaint ¶ 20, at 5. On August 12, 2009, the Personnel Board held unanimously that the City of Albuquerque did not meet its burden of proof to demonstrate that Salazar was fired for just cause and again ordered the City of Albuquerque to reinstate him in his position, to pay his back pay, to restore his benefits, and to expunge his disciplinary record. See Complaint ¶ 21, at 5. The City of Albuquerque again appealed to the state district court. Salazar contends that the City of Albuquerque continues to fail “to comply with their promises and obligations to return Mr. Salazar to work, pay his back wages, reinstate his benefits, and expunge his record.” Complaint ¶ 30, at 7.

On January 4, 2010, the City of Albuquerque's attorney wrote to Salazar's attorney:

The City has decided to reinstate Paul Salazar to a position with the City. He will need to pass the pre-employment physical and other tests associated with his return. The City will pay him back wages and any overtime wages he would have earned. The City will dismiss its appeal of the disciplinary action. I will let you know when he is to report to work.

Complaint ¶ 23, at 5–6 (quoting Electronic transmission from Paula Forney to Paul Livingston with copies to Eugene Moser, Bruce Rizzieri, and Mary L. Scott). City of Albuquerque Director of Human Resources, Eugene Moser, confirmed that “Salazar will be returning as a Motor Coach Operator once he passes the requisite drug screening.” Id. ¶ 24, at 6. Salazar took the City of Albuquerque's pre-employment physical examination and drug test, and passed both. See id. ¶ 27, at 7.

On February 4, 2010, Payne, who was no longer a City of Albuquerque employee, made a statement to KOB–TV–4:

I think the personnel board is absolutely crazy to say we need to bring this individual back, put him behind the wheel of a bus and give him $100,000. That's nuts.... If Mayor Berry was forced to re-hire him, he should have given him a position where he's not around children.

Complaint ¶ 25, at 6. On February 11, 2010, Albuquerque news media reported that the City of Albuquerque planned to challenge Salazar's reinstatement. See Complaint ¶ 29, at 7. Berry then rescinded the promise to reinstate Salazar. See Complaint ¶ 29, at 7. In his Complaint, Salazar asserts that the Defendants have done nothing to comply with their promises and obligations to return Mr. Salazar to work, pay his back wages, reinstate his benefits, and expunge his record.” Complaint ¶ 30, at 7. The City of Albuquerque's Charter prohibits the mayor from “becoming involved in the hiring, promotion, demotion, or discharge of any city employee.” Complaint ¶ 5, at 2.

PROCEDURAL BACKGROUND

On July 8, 2010, Salazar filed his Complaint. Salazar brings six Counts against the Defendants: (i) violation of right to procedural due-process, Count I; (ii) violation of right to substantive due-process, Count II; (iii) defamation per se, Count III; (iv) malicious abuse of process, Count IV; (v) breach of employment contract and duty of good faith and fair dealing, Count V; and (vi) punitive damages, Count VI. See Complaint Counts I–VI, at 8–13.

The City of Albuquerque and Berry, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, move the Court to dismiss Salazar's Complaint against all Defendants. The City of Albuquerque and Berry set out the grounds for their motion more fully...

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