Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch.
| Decision Date | 30 March 2005 |
| Docket Number | No. CIV. 03-1185JBLFG.,No. CIV. 02-1146JBLFG.,CIV. 02-1146JBLFG.,CIV. 03-1185JBLFG. |
| Citation | 377 F.Supp.2d 994 |
| Parties | Transito TRUJILLO, Plaintiff, v. BOARD OF EDUCATION OF THE ALBUQUERQUE PUBLIC SCHOOLS, Joseph Vigil and Susie Peck, Albuquerque Public Schools Superintendents individually and in their official capacities; Anthony Griego, Principal, Valley High School, individually and in his official capacity; Bruce Smith, Valley High School Assistant Principal, individually and in his official capacity; Ronald Williams, Director of Certified Staffing, Albuquerque Public Schools, individually and in his official capacity; and Mark Mayerstein, Valley High School employee, individually and in his official capacity, Defendants. and Transito Trujillo, Plaintiff, v. Board of Education of the Albuquerque Public Schools; Mark Mayerstein, Senior ROTC Instructor, and Anthony Griego, Valley High School Principal, in their official and Individual capacities, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Transito Trujillo, Albuquerque, NM, Pro se Plaintiff.
Max J. Madrid, Alex C. Walker, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for Defendants Board of Education, Albuquerque Public Schools; Joseph Vigil; Susie Peck; Anthony Griego; Bruce Smith; and Ronald Williams.
Richard L. Alvidrez, Sean Olivas, Keleher & McLeod, Albuquerque, NM, for Defendant Mark Mayerstein.
THIS MATTER comes before the Court on (i) Defendant Mark Mayerstein's Motion for Summary Judgment, filed October 10, 2003 (Doc. 74), and (ii) Plaintiff Transito Trujillo's Motion for Summary Judgment as to Plaintiff's § 1983 Claim Against Defendant Mayerstein, filed October 10 2003 (Doc. 71).1 The Court held a hearing on these motions on January 9, 2004.2 The primary issues are whether there are any genuine issues of material fact whether: (i) there is an actionable adverse action; (ii) there is a link between any speech protected by the First Amendment and Mayerstein's actions; and (iii) anything Mayerstein did amounts to a constitutional violation. Consistent with the Court's ruling at the hearing on these motions, and for the reasons given at the time of the hearing, the Court finds that Mayerstein is entitled to qualified immunity, and the Court will grant Mayerstein's motion for summary judgment and deny Trujillo's motion for summary judgment on his § 1983 claim against Mayerstein.
Both parties moved for summary judgment on this claim. The United States Court of Appeals for the Tenth Circuit has explained:
It is ... settled doctrine that the fact that both parties have moved for summary judgment does not permit the entry of a summary judgment if disputes remain as to material facts. However, cross motions for summary judgments do authorize the court to assume that there is no evidence which needs to be considered other than that which has been filed by the parties.
Harrison W. Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981) (citations omitted). See Sec. & Exch. Comm'n v. Am. Commodity Exch., Inc., 546 F.2d 1361, 1366 (10th Cir.1976)("[F]iling of cross-motions under Rule 56, F.R. Civ. P. raises the inference that there is no evidence other than the pleadings and supporting instruments to be considered, and so the trial court need only examine those materials in ascertaining whether an issue of material fact exists.").
As an initial matter, the Court, as it prepared this Opinion, noted that there are facts contained in the record which neither party discussed in their briefing on this motion or at the hearing. The Tenth Circuit has recently held: "Without a specific reference, [the court] will not search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury." Chavez v. New Mexico, 397 F.3d 826, 839 (10th Cir.2005)(quotation omitted). Accord Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir.1992)( that searching the appellate record for "dormant evidence ... would not be fair to either the movant or the district court"); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001)( that, while a district court has discretion to consider other materials in the record, it has no obligation to do so "where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found"); Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir.1996)( that the district court has no affirmative obligation to "plumb the record" to procure material facts). Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.1998) (citation omitted). The courts, however, "have a limited and neutral role in the adversarial process, and [the courts should be] wary of becoming advocates who comb through the record... and make a party's case for it." Id. According to the Tenth Circuit,
the nonmovant must carry its burden in the district court in a timely fashion pursuant to Rule 56(e) and Celotex or explain why it cannot pursuant to Rule 56(f). Otherwise, the nonmovant acts, or fails to act, at its peril. The burden is not an onerous one for the nonmoving party in each case, but does not at any point shift from the nonmovant to the district court.
Id. (citations omitted).
Trujillo honorably retired from the United States Air Force after 26 years of service. See Deposition of Transito Trujillo at 399:13-15 (taken July 7, 2003) (hereinafter "Trujillo Depo."). Thereafter, in 1991, the Albuquerque Public Schools ("APS") hired Trujillo at Valley High School ("VHS") as Aerospace Science Instructor ("ASI") in the Air Force Junior Reserve Officers' Training Corps ("AFJROTC") program. See id. at 407:17-19.
Colonel Richardson Crook was Trujillo's supervisor at VHS. See Affidavit of Col. Mark Mayerstein ¶ 8, at 2 (executed October 9, 2003)(hereinafter "Mayerstein Aff., October 9, 2003"). On March 15, 2001, APS hired Mayerstein, a retired United States Air Force Lieutenant Colonel, to replace Crook as a JROTC Senior ASI at VHS. See Letter from John Miera to MSGT Vasser, at 1 (dated March 15, 2001). Trujillo's wife, Major Lourdes Trujillo ("Lourdes"),3 is a retired Airforce Major who did volunteer work with Trujillo's unit. See Deposition of Lourdes Trujillo at 154:17-18 (taken June 4, 2003); id. at 166:17-21. Lourdes alleges that she applied, but was not hired, for the position which APS hired Mayerstein and, in response, filed an Equal Employment Opportunity Commission ("EEOC") complaint on June 1, 2001, alleging discrimination based on national origin and sex. See EEOC Charge of Discrimination at 1, dated June 1, 2001. Trujillo alleges that he openly supported Lourdes in the EEOC process and as she prepared to litigate the issue. See Affidavit of Transito Trujillo ¶ 12, at 5 (executed October 26, 2003)(hereinafter "Trujillo Aff., October 26, 2003"); Affidavit of Transito Trujillo ¶ 30, at 12 (executed August 27, 2003)(hereinafter "Trujillo Aff., August 27, 2003").
Mayerstein's official start date with APS was October 1, 2001. See Letter from John Miera to MSGT Vasser, at 1. In June 2001, Mayerstein learned that Lourdes filed a lawsuit against APS. See Mayerstein Aff., October 9, 2003, ¶ 3, at 1. Mayerstein also contends, however, that he did not know, at that time, that Lourdes had filed an EEOC complaint. See id.
Mayerstein first met Trujillo in late September 2001, shortly before Mayerstein's official start date. See Trujillo Depo. at 418:17-24. Despite that Lourdes was suing APS over the job for which APS hired Mayerstein, Trujillo felt that he and Mayerstein could work together. See id. at 419:6-10. At their first meeting, Trujillo and Mayerstein cleared the air, see id. at 419:21-25; id. at 420:1, and, thereafter, began to have a good working relationship, see id. at 420:12-21. Trujillo believed he and Mayerstein got along well, and Trujillo appreciated Mayerstein's new ideas. See id. at 421:1-14. In addition, Mayerstein and Trujillo attended hockey games together with their children. See id. at 420:23-24.
During October and November of 2001, Trujillo felt he could disagree with Mayerstein and, upon doing so, Mayerstein was open to suggestions. See id. at 421:20-24. In December of 2001, however, Trujillo believed that Mayerstein was less willing to listen to Trujillo's suggestions, began joking with Trujillo less, and became less friendly with Trujillo. See id. at 423:13-24; id. at 424:5-15.
Trujillo alleges that Mayerstein retaliated against him because Lourdes sent a letter to APS alleging that Mayerstein was not qualified to teach a particular course. On December 10, 2001, Lourdes wrote a letter to the Board of Education asserting that Mayerstein was teaching the ROTC Private Pilot Ground School course without the proper certification. See Letter from Lourdes E. Trujillo to Albuquerque Public Schools Board of Education at 1 (dated December 10, 2001).4 Mayerstein admits that he was aware of Lourdes' letter. See Affidavit of Col. Mark Mayerstein ¶ 3, at 1 (October 24, 2003)(hereinafter "Mayerstein Aff., October 24, 2003").5
According to Mayerstein, he was qualified to teach the ROTC Ground School course, for high school credit only, because he was a career navigator in the United States Air Force. See Mayerstein Aff., October 9, 2003, ¶ 4, at 2. Mayerstein admits that, because he was not Federal Aviation Administration ("FAA") certified to teach the course, any ROTC students that took the class would not be able to apply the...
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