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Lamendola v. Taos County Sheriff's Office

United States District Court, D. New Mexico

September 6, 2018

NICOLAS LAMENDOLA, Plaintiff,
v.
TAOS COUNTY SHERIFF'S OFFICE, and JOHN DOES 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant's Rule 12(b)(6) Motion to Dismiss in Lieu of an Answer (Doc. 4), filed February 26, 2018, and fully briefed on July 2, 2018. Docs. 4 & 23. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to have me serve as the presiding judge and enter final judgment. See Docs. 3, 6, 7.

         This case arises from Plaintiff's employment with the Taos County Sheriff's Office between August 2008 and July 2015. Plaintiff filed suit in the Eighth Judicial District Court of Taos County, State of New Mexico, alleging discrimination and retaliation in violation of the New Mexico Human Rights Act (“NMHRA”), the Americans with Disabilities Act (“ADA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”). Doc. 1, Ex. A, at 5-8. Additionally, he alleged a state law claim for retaliatory termination against public policy. Id. at 8-9. Taos County Sheriff's Office removed the action to this Court on February 18, 2018. See Doc. 1. Shortly thereafter, it moved to dismiss Plaintiff's Complaint on the basis that the Taos County Sheriff's Office, the defendant named by Plaintiff, is not a suable entity. Doc. 4.

         On April 19, 2018, the Court held a Motion Hearing on Defendant's Motion to Dismiss. At the hearing, the Court ordered the parties to file supplemental briefs, specifically directing them to address the existence of a merit system ordinance as well as the applicability of Bristol v. Board of County Comm'rs of County of Clear Creek, 312 F.3d 1213 (10th Cir. 2002), Bundy v. Chaves County Board of Commissioners, 215 Fed.Appx. 759 (10th Cir. 2007) and Bundy v. Chaves County Board of Commissioners, 05cv0122 MCA/RLP (Doc. 38) (D.N.M. Apr. 28, 2016). See Doc. 15. Defendant filed its supplemental brief on April 27, 2018 (Doc. 19), and Plaintiff filed his on July 2, 2018 (Doc. 23).

         I. Legal Standard

         On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts as true “all well-pleaded factual allegations in a complaint and views these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009); Morris v. City of Colorado Springs, 666 F.3d 654, 660 (10th Cir. 2012). In order to survive a motion to dismiss brought under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         II. Analysis

         Plaintiff's First Amended Complaint asserts claims against the Taos County Sheriff's Office and John Does 1-10. The Taos County Sheriff's Office maintains that Federal Rule of Civil Procedure 17 and N.M. Stat. Ann. § 4-46-1 preclude Plaintiff's assertion of claims against it. Plaintiff, in contrast, insists that a county sheriff's department is liable under both state and federal law. Resolution of Defendant's Motion requires the Court to explore the interplay between various procedural rules, a state naming statute, principles of agency, and federal and state discrimination laws.

         First, Federal Rule of Civil Procedure 17(b) addresses a defendant's capacity to sue and be sued. It provides that for defendants, other than corporations and individuals not acting in a representative capacity, the capacity to sue or be sued is determined by “the law of the state where the court is located.” See Fed. R. Civ. P. 17(b). Thus, New Mexico law determines whether the Taos County Sheriff's Office has the capacity to be sued for violations of the ADA, Title VII, and the NMHRA.

         Section 4-46-1, New Mexico's so-called “naming statute, ” provides that, “[i]n all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be the board of county commissioners of the county.” Id. Thus, a straightforward application of Rule 17(b) and Section 4-46-1 would suggest that Plaintiff must name the Board of County Commissioners of Taos County, rather than the Taos County Sheriff's Office, as the defendant in this case. But, as the Court indicated at the April 19, 2018 Motion Hearing, a handful of Tenth Circuit cases challenge a straightforward application of Rule 17 and Section 4-46-1 in this case.

         For instance, in Bristol, the Tenth Circuit determined that, because the board of county commissioners there lacked the power to control the hiring, termination, or supervision of the sheriff's employees under Colorado law, the board owed the sheriff's employees no duty under the ADA. Bristol, 312 F.3d at 1215. Moreover, in Bundy, the Tenth Circuit, this time examining New Mexico law, noted that “[w]hile a board of county commissioners may set the salaries of the employees and deputies necessary to discharge the functions of the county, only elected county officials, including sheriffs, have the authority to hire persons necessary to carry out the officials' duties.” Bundy, 215 Fed.Appx. at 761 n.2 (citing N.M. Stat. Ann. § 4-38-19(A) and N.M. Const. art. X, §§ 2(A) & (B)).

         Together, these cases beg the question whether a board of commissioners' lack of control over hiring sheriff's office employees is fatal to claims asserted against the board. Indeed, cognizant of the Tenth Circuit's holding in Bristol, and its discussion of the limitations on a board of county commissioners' hiring authority in Bundy, this Court was hesitant to dismiss Plaintiff's claims against the Taos County Sheriff's Office, anticipating that the Board of County Commissioners of Taos County might thereafter assert that it had no liability as Plaintiff's employer. Notably, if the Taos County Sheriff's Office does not have the capacity to be sued, but the Board of County Commissioners for Taos County has no liability as an employer under the ADA or Title VII, Plaintiff might be left without a remedy for the violations alleged in his Complaint. Upon examination of the cases, the parties' arguments, and other relevant law, however, the Court concludes that neither Bristol nor Bundy control here.

         The plaintiff in Bristol, a former confinement officer for the Clear Creek County Sheriff, asserted claims for violations of the ADA against both the board of county commissioners and the sheriff. Bristol, 312 F.3d at 1216. The board of county commissioners moved for judgment as a matter of law, arguing that it owed no duty to provide accommodation to the plaintiff under the ADA. Id. The plaintiff, on the other hand, maintained that both the board and the sheriff were his employers for ADA purposes. Id. The Tenth Circuit explained that the particular context there - “where there [was] more than one alleged employer” - implicated two tests for determining the employer under the ADA: the joint-employer test and the single-employer test. Id. at 1218. In a footnote, the court acknowledged that other tests, including the agency test, might be better suited to other contexts. Id. at 1218 n.5.

         The Tenth Circuit, in Bristol, noted that under Colorado law sheriffs have “the exclusive control over the hiring and firing of their employees.” Id. at 1219 (citing Colo. Rev. Stat. § 30-10-506). Moreover, it found that “even self-imposed limitations on [a sheriff's] right to discharge employees at will are invalid.” Id. (citing Seeley v. Bd. of Cty. Comm'rs, 791 P.2d 696, 700 (Colo. 1990)). Because the sheriff exercised control over labor relations in the sheriff's office under Colorado law, the court determined that the sheriff, not the board, was the plaintiff's employer for purposes of the ADA under both the joint-employer and single-employer tests. Id. at 1220.

         But Colorado law differs from New Mexico law in terms of the role of sheriff's and boards of county commissioners. Unlike New Mexico law, Colorado law establishes that the sheriff is solely responsible for hiring and firing deputies and cannot relinquish that authority. See Tunget v. Bd. of Cty. Comm'rs, 992 P.2d 650, 652 (Colo. Ct. App. 2000) (reasoning that the sheriff, as opposed to the board, hires and fires deputies); Seeley v. Bd. of Cty. Comm'rs for La Plata County, 791 P.2d 696, 699 (Colo. 1990) (holding that Colo. Rev. Stat. Ann. § 30-10-506 prevented the sheriff from relinquishing the authority to terminate deputies). In contrast, New Mexico law provides that sheriffs have the power to hire and fire deputies, “except that in counties which have established a merit ...


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