Tapia v. City of Albuquerque
| Decision Date | 31 March 2014 |
| Docket Number | No. CIV 13–0206 JB/GBW.,CIV 13–0206 JB/GBW. |
| Citation | 10 F.Supp.3d 1207 |
| 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, 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, and Stephen G. French, Paula I. Forney, Erika E. Anderson, French & Associates, P.C., Albuquerque, NM, 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, for Defendant City Personnel Board.
Alfred L. Green, Jr., Emily A. Franke, Neil R. Blake, Butt Thornton & Baehr, P.C., Albuquerque, NM, for Defendant Paula Forney.
Lynn S. Sharp, Christopher Lee Moander, Charles P. List, Sharp Law Firm, Albuquerque, NM, for Defendant Carmen Wagner–Mogle M.D.
THIS MATTER comes before the Court on the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Dismissing Complaint in its Entirety, filed March 29, 2013 (Doc. 26)(“MTD & MSJ.”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court will dismiss for failure to state a claim or grant summary judgment on the Plaintiffs' claims against Defendants City of Albuquerque, Richard Berry, Robert J. Perry, and Bruce Rizzieri (“the City Defendants”). The Court will grant the MTD & MSJ. The Plaintiffs have not shown that the City of Albuquerque has a custom or policy that directly caused one of its officers to violate the Plaintiffs' constitutional rights; accordingly, the City of Albuquerque is not subject to liability for the Plaintiffs' constitutional claims. The Plaintiffs have not stated a claim for violations of the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment, and no evidence supports their allegations; accordingly, the Court will grant the MTD & MSJ as to those claims. No evidence supports the Plaintiffs' allegations that the City Defendants breached a contract with them; the Court will, therefore, grant the MTD & MSJ as to that claim. Plaintiff Jessica Tapia has not stated a claim that any City Defendant violated a privacy right that the Constitution protects, and no evidence supports her allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not adequately alleged the elements of a negligence claim against any City Defendant, and statutory immunities protect the City Defendants from liability; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants conspired to violate their Constitutional rights, and no evidence supports the Plaintiffs' allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants engaged in unfair labor practices, and no evidence supports the Plaintiffs' allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. Finally, the Plaintiffs have not shown that the individual City Defendants violated Constitutional rights that were clearly established at the time the City Defendants violated them; accordingly, the individual City Defendants are entitled to qualified immunity.
The Court presents the factual background in multiple parts. To provide background for the MTD & MSJ, the Court takes the facts in the first four sections from 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”). The Complaint's organization is unclear.
Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.
The Court sets forth the undisputed facts in the remaining sections. The Plaintiffs did not respond to the MTD & MSJ. Under the local rules, “[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.” D.N.M.LR–Civ. 56.1(b). Accordingly, the statement of undisputed facts incorporates all statements in the MTD & MSJ that evidence supports.
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–Mogel 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...
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Tapia v. City of Albuquerque
...10 F.Supp.3d 1207Jessica 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, an......