Tapia v. City of Albuquerque
| Decision Date | 31 March 2014 |
| Docket Number | No. CIV 13–0206 JB/ACT.,CIV 13–0206 JB/ACT. |
| Citation | 10 F.Supp.3d 1323 |
| Parties | Jessica TAPIA, Vanessa Aragon, and New Mexico Transportation Union, Ernest Lucero, Chairman, Plaintiffs, v. CITY OF ALBUQUERQUE, Richard Berry, Mayor, Robert J. Perry, Chief Administrative Officer, Bruce Rizzieri, Transit Dept. Director, City Personnel Board, Paula Forney, and Carmen Wagner–Mogle, M.D., Defendants. |
| Court | U.S. District Court — District of New Mexico |
Paul Livingston, Placitas, NM, Attorney for the Plaintiffs and Counter–Defendants, Jessica Tapia, Vanessa Aragon, New Mexico Transportation Union, and Ernest Lucero.
Rebecca E. Wardlaw, Managing Assistant City Attorney, Samantha M. Hults, Steve D. Nichols, Assistant City Attorneys, Stephen G. French, Paula I. Forney, Erika E. Anderson, French & Associates, P.C., Albuquerque, NM, Attorneys for Defendants and Counter–Claimants, City of Albuquerque, Richard Berry, Robert J. Perry, and Bruce Rizzieri.
Debra J. Moulton, Deborah D. Wells, Kennedy, Moulton & Wells, P.C., Albuquerque, NM, Attorneys for Defendant, City Personnel Board.
Alfred L. Green, Jr., Emily A. Franke, Neil R. Blake, Butt Thornton & Baehr, P. C., Albuquerque, NM, Attorneys for Defendant, Paula Forney.
Lynn S. Sharp, Christopher Lee Moander, Charles P. List, Sharp Law Firm, Albuquerque, NM, Attorneys for Defendant, Carmen Wagner–Mogle M.D.
THIS MATTER comes before the Court on the Motion to Dismiss by Defendant Paula Forney, filed May 3, 2013 (Doc. 43)(“MTD”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court should dismiss the Plaintiffs' claims against Defendant Paula Forney under rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court will grant the MTD. The Court concludes that the Plaintiffs do not assert Counts 2, 4, and 6 of the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. 1–1)(“Complaint”), against Ms. Forney; to the extent that the Plaintiffs assert those claims against Ms. Forney, the Court will grant the MTD. The Court will also grant the MTD as to Counts 1, 3, and 5, because none of the Counts states a claim against Ms. Forney for violating any provision of the Constitution of the United States of America.
To provide background for the MTD, the Court takes the following facts from the Complaint. The Complaint's organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.
Plaintiff “Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheel-chair lift on a City van.” Complaint ¶ 1, at 1 (emphasis omitted). Plaintiff “Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011.” Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff “[t]he New Mexico Transportation Union (“NMT [U]”), [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman.” Complaint ¶ 3, at 2 (emphasis omitted). “Defendant City of Albuquerque is the largest city in New Mexico; Albuquerque is in Bernalillo County, New Mexico.” Complaint ¶ 4, at 2 (emphasis omitted). Defendant “Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City.” Complaint ¶ 5, at 2 (emphasis omitted). Defendant “[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;” according to the Plaintiffs, “the current Personnel Board operates unlawfully under the control and direction of” Perry. Complaint ¶ 6, at 2. Non-party “[t]he City Labor–Management Relations Board is supposed to be a neutral quasi-judicial hearing panel;” the current Labor Board operates under the control and direction of the City of Albuquerque,” Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is “Director of the City's Transit Department.” Complaint ¶ 8, at 2. Defendant “Paula Forney is a former assistant City attorney.” Complaint ¶ 9, at 2. Defendant “Carmen Wagner–Mogle was Jessica Tapia's physician.” Complaint ¶ 10, at 2.
The Plaintiffs assert that NMTU “petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011,” but “the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624.” Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board supported “the NMTU in either its grievance or bargaining representation.” Complaint ¶ 11, at 3. “On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU.” Complaint ¶ 12, at 3. “However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded.” Complaint ¶ 13, at 3.
As a direct result of the City's failure to acknowledge and support NMTU as the collective bargaining and grievance representative, NMTU and its officials were untrained, inexperienced, and without any office, staff, or operating funds. At the same time the union officers were attempting to represent drivers, the Transit Department unreasonably required them to fully perform their driving schedules.
Complaint ¶ 14, at 3–4. Tapia's and Aragon's grievances “were the first two grievances ever handled by NMTU's new Chairman.” Complaint ¶ 15, at 4.
According to the Plaintiffs, the City Charter requires the mayor to administer and protect “the merit system,” and to appoint “an officer to administer the merit system.” Complaint ¶ 16, at 4.1 According to the Plaintiffs, “[t]he City has not appointed or hired” such an officer. Complaint ¶ 17, at 4. “[M]oreover, the Merit System Ordinance states that the Mayor” shall designate the CAO—“the City's highest appointed official and the person authorized to ‘reprimand, suspend, demote or discharge employees' ”—to administer that system. Complaint ¶ 18, at 4 (quoting MSO § 3–1–2(c)(3)). “The City Personnel Board is neither fair nor neutral,” but instead, Complaint ¶ 19, at 4.
Tapia's wrist was injured
on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. “Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver.” Complaint ¶ 22, at 5. Complaint ¶ 21, at 5. “By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do.” Complaint ¶ 23, at 5.
On December 27, 2010, counsel wrote to Transit Director Bruce Rizzieri and the Human Resources manager, to inquire about the City's justification for putting Ms. Tapia in the cold Guard Shack with nothing to do. They did not respond. On January 21, 2011, counsel wrote again to further question and object to the City's mistreatment of Ms. Tapia and to give notice of her tort claims.
On February 15, 2011, the Transit Department scheduled a Pre–Determination Hearing (PDH) for February 24, 2011, charging that Ms. Tapia ‘submitted a P–30 Request for Leave form with 68.270 hours of Absent Without Leave.’ Mr. Bird cancelled that ‘hearing’ after Ms. Tapia and her attorney appeared because, he said, he had forgotten to refer the case to the mediation office.
Complaint ¶ 25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶ 26, at 6. When Tapia's attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia Complaint ¶ 26, at 6 (). Complaint ¶ 27, at 6.
On April 18, 2011, the Transit Department gave [Tapia] another Notice, scheduling a pre-determination hearing for May 9, 2011. Included in the allegations was the contention that on...
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