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Vigil v. Delfin

United States District Court, D. New Mexico

October 9, 2018

RYAN VIGIL, Plaintiff,
ANTHONY DELFIN, EDDIE TUDOR, individually and in their official capacities, and ENERGY, MINERALS, AND NATURAL RESOURCE DEPARTMENT, a cabinet department of the STATE OF NEW MEXICO, Defendants.


         Plaintiff is a firefighter who claims that, without offering him any due process, Defendants Anthony Delfin, Eddie Tudor, and the Energy Mineral and Natural Resource Department (“EMNRD”) made a decision to fire him in 2014 and, in later years, illegally refused to re-hire him. See Doc. 1-2 (Complaint). Plaintiff also seeks to supplement his complaint to include allegations that, this past year, the new head of the EMNRD, Donald Griego, has unconstitutionally interfered with his ability to maintain employment elsewhere. Doc. 42. Defendants have moved for summary judgment, arguing that Plaintiff has not established a violation of his liberty or property rights and, therefore, cannot prevail on his claims under the Fourteenth Amendment of the United States Constitution. Doc. 18. Defendants further argue that Plaintiff cannot obtain injunctive relief under the New Mexico Constitution because he has no property right and cannot prevail on his claim for breach of implied written contract because no written contract existed. Id. The individual Defendants also separately assert qualified immunity. Finally, Defendants oppose Plaintiff's motion to supplement his complaint. Doc. 44.

         The Court concludes that no reasonable juror could find that Plaintiff suffered an adverse employment action in 2014 that would give rise to due process protections and that, subsequent to 2014, no reasonable juror could conclude that Plaintiff had a property right. Therefore, the Court grants Defendants' motion for summary judgment with regard to Plaintiff's first claim (violation of Fourteenth Amendment right to due process) and third claim (injunctive relief under the New Mexico Constitution). Plaintiff's second claim (Fourteenth Amendment deprivation of liberty) fails because Defendants did not publish the statements about which Plaintiff complains. Plaintiff's fourth claim (breach of implied written contract) fails because Plaintiff has not provided evidence of a written contract that Defendants breached. Because the Court grants Defendants' motion on these bases, it need not consider the individual defendants' qualified immunity arguments. With regard to Plaintiff's motion seeking to supplement his complaint, Plaintiff has failed to allege that Mr. Griego violated a clearly established constitutional right. As a result, Plaintiff's proposed amendments would be futile and the Court therefore denies Plaintiff's motion to supplement. Accordingly, this lawsuit is hereby dismissed with prejudice.


         The Forestry Division of the EMNRD is responsible for wildfire management in New Mexico and includes several districts, including the Las Vegas Forestry District. Doc. 1-2 (“Compl.”) ¶ 6; Doc. 21-1 at 1, Doc. 1-2 at 3. During the relevant time period, Defendant Anthony Delfin was the State Forester and subsequently the Deputy Secretary of EMNRD. Compl. ¶ 4. Defendant Eddie Tudor was Deputy State Forester. Compl. ¶ 5. In these roles, Mr. Delfin and Mr. Tudor were responsible for overseeing the EMNRD's Forestry Division as well as the local Forestry Districts. Compl. ¶¶ 4-5. Proposed Defendant Donald Griego served as State Fire Management Officer during the time period at issue in Plaintiffs initial complaint and, in 2017, he replaced Mr. Delfin as State Forester. Doc. 42-1 (“Proposed Suppl. Compl.”) ¶ 5A.

         Plaintiff worked as an Emergency Firefighter/Administratively Determined (EF/AD) for the Las Vegas District for eight straight fire seasons, beginning in 2006. Pl. Aff ¶ 8 (Doc. 21-1). In 2013, Plaintiff became qualified as a Strike Team Leader. Pl. Aff. ¶ 4. From July 19, 2014 until August 30, 2014, in connection with his employment with the Las Vegas District, Plaintiff worked fighting fires in the State of Washington. Compl. ¶¶ 13-15.[2] No indication exists that, after this assignment, Plaintiff performed any other firefighter work in 2014, or that any additional firefighter work was needed in 2014.

         Plaintiff presents evidence that various supervisors praised his work. See Compl. ¶ 16; Pl. Aff. ¶ 6. Nonetheless, Plaintiff asserts that, as early as September 2014, Mr. Griego informed him that a grievance might be filed against him and that, if this happened, Mr. Griego would let Plaintiff know. Pl. Aff. ¶ 9; Compl. ¶ 17.[3] Because no one informed him in 2014 that a grievance had actually been filed, Plaintiff says he assumed in 2014 that no such grievance had been filed. Compl. ¶ 19. However, on January 27, 2015, Plaintiff claims that Defendants, through Eugene Pino (Las Vegas District Fire Management Officer), told him that the Las Vegas District would no longer take his application to be an Emergency Firefighter/AD. Pl. Aff. ¶ 10; Compl. ¶ 20.

         Plaintiff says he then called Mr. Griego, who told him Mr. Delfin made the decision to keep the District from re-hiring him based on a complaint filed by another AD firefighter. Compl. ¶ 21; see also Pl. Aff. ¶ 10. Plaintiff says Mr. Griego further informed him that there had been an investigation. Compl. ¶ 22. This prompted Plaintiff to send a January 27, 2015 email to Mr. Griego and Mr. Tudor noting that he had not previously been informed about an investigation and requesting all “records and documents used in the investigation” as well as a list of all witnesses who were interviewed, and the ultimate findings and conclusions reached. See Doc. 21-1 Ex. B; see also Compl. ¶ 24.

         The next day, Mr. Tudor responded via email that “[n]o formal investigation was conducted, so there are no documents available to provide you.” Pl. Aff. ¶ 16(a); Compl. ¶ 25; see also Doc. 21-1 Ex. B. He then provided the names of three witnesses who were interviewed and noted that “the New Mexico State Forestry Division's Fire Policy and Procedures Manual (3.12.4 Hiring) states that ‘[t]he Division employs emergency fire fighters/ADs based on the Division's needs, not on the emergency fire fighter's/AD's need. At no time shall emergency fire fighters/ADs consider emergency incident assignments as their primary means of financial support or a permanent job with guaranteed hours or benefits.'” Doc. 21-1 Ex. B. Finally, Defendant Tudor informed Plaintiff that he could apply for the 2015 fire season. Id.

         Two days later, Mr. Pino reiterated to Plaintiff that, although they were letting him apply for the 2015 fire season, he would not be hired because of Mr. Delfin's decision. Compl. ¶ 26; see also Pl. Aff. ¶ 10. Plaintiff applied on February 3, 2015, but was not hired. Compl. ¶ 28.

         As a result, Plaintiff, through counsel, sent an April 3, 2015 letter to Mr. Griego complaining about Defendants' treatment of Plaintiff and asking that Plaintiff be provided an opportunity to refute the allegations that had been made against him. Def. Ex. E (Doc. 18-5). Mr. Delfin responded in a letter dated April 9, 2015. Def. Ex. A (Doc. 18-1). Mr. Delfin stated that, based on complaints stemming from Plaintiff's work in Washington State, “[t]he Division cannot employ Mr. Vigil because he poses too great a liability to the Division.” Id. at 5. Mr. Delfin summarized the complaints as follows:

[Plaintiff] had conflict with the team members, demeaned permanent Forestry Division employees, displayed favoritism toward employees that he had worked with in the Las Vegas District office, told crew members how to fill out their timesheets in a specific way that did not accurately reflect the hours that they worked, or had crew members change their timesheets after they had been signed by a division supervisor, that he had the crew members violate the work/rest ratio in a manner that was unsafe, and finally had crew members drive in violation of state and federal guidelines and when they had little to no sleep.

Def. Ex. A at 3. He then stated that the Forestry Division had conducted an investigation that appears to have consisted of five interviews of unidentified persons, all of whom confirmed the allegations. Id. Mr. Delfin next provided further detail about the allegations and concluded “there is credible evidence to support the allegations in the complaint.” Id. at 3-5. With regard to why the Division did not take any disciplinary action against Plaintiff, Mr. Delfin explained, “[t]hese allegations came to the Division's attention after [Plaintiff] was no longer employed and after the fire season . . . [i]f the Division had the ability to discipline him, it would have done so for misconduct.” Id. at 5. Although the letter did not contain a threat of prosecution, Mr. Delfin stated, “[t]he alteration of the timesheets constitutes a fourth degree felony.” Id. at 4.

         Sometime after Plaintiff received this letter, he sent a letter to New Mexico Governor Susana Martinez requesting her assistance and asserting that he had documentation that would demonstrate the complaints against him were inaccurate. See Def. Ex. B (Doc. 18-2). On July 15, 2015, EMNRD Cabinet Secretary David Martin responded to this letter. See Def. Ex. A (Doc. 18-1 at 1). In addition to summarizing portions of the April 9, 2015 letter from Mr. Delfin, this letter addressed Plaintiff's lack of due process complaints as follows:

You are not an employee in a career appointment. The nature of the Administratively Determined Fire Fighter positions is that they are emergency temporary positions used when additional fire fighters are needed. There is no guarantee that you will be hired consistently from one season to another. The Conditions of Hire Agreement that you signed states that the Division may hire emergency firefighters whenever it becomes necessary to cope with a sudden and unexpected nature and is purely temporary in duration. (Attachment B). Since you are not a permanent career employee, you are not entitled to the due process protections to which career employees are entitled. You acknowledged this by signing the 2014 Emergency Firefighter/Administratively Determined (AD) Staffing Plan Guidance Documents on February 3, 2014.

Def. Ex. A at 1-2. The 2014 Emergency Firefighter/Administratively Determined (AD) Staffing Plan Guidance Documents Plaintiff signed on February 3, 2014 stated in relevant part:

EMNRD, Forestry Division may hire emergency firefighters/ADs whenever it becomes necessary to cope with a sudden and unexpected emergency caused by a fire or extreme fire potential. Such hiring is of an uncertain nature and is purely temporary in duration.
. . .
Failure to adhere to this Staffing Plan, the Forestry Division Fire Policy and Procedures Manual, EMNRD Policies and Procedures, or the Governor's Code of Conduct may result in disciplinary action. Depending on the seriousness of the offense, disciplinary actions can vary from a verbal warning up to and including termination of employment. Districts shall document verbal warnings and shall provide individuals written documentation of other disciplinary actions or termination of employment.
. . .
At the beginning of each fire season, districts shall review the applications received and select applicants based on: 1) firefighting qualifications, experience, and training; 2) documented performance, if prior applicant; 3) overall attitude and work ethic, if prior applicant; 4) acceptance of the Division's 2-hour “fill or kill” concept for incident call out; and 5) willingness to staff either hand crews, engines, or dispatch offices, depending on the need and circumstances of a district or incident.
. . .
Emergency firefighters are employed based on the Forestry Division's needs, not on the emergency firefighter's need. At no time should emergency firefighters consider emergency incident assignments as their primary means of financial support or a permanent job with guaranteed hours. Emergency firefighters are not eligible for unemployment or unemployment benefits.

Doc. 18-1 at 6-8; Doc. 21-1 at 11.

         Plaintiff applied for an Emergency Firefighter position with the Las Vegas District in 2016 and 2017, with the Socorro District in 2016, and with the Returning Heroes Wildland Firefighter Program in 2016. Compl. ¶¶ 42-46; Pl. Aff. ¶ 24. He was not, however, hired for any of these positions. Id.


         On March 10, 2017, Plaintiff filed suit in state court against Defendants for damages and injunctive relief. Compl. ¶ 1. Plaintiff alleges that Defendants “interfered with [his] employment, preventing him from earning a living and following his profession” and that they took these actions “without giving him the opportunity to contest specious allegations . . . and to clear his name.” Id. On June 19, 2017, Defendants removed the lawsuit to this Court on the basis of federal question jurisdiction. See Doc. 1.

         Plaintiff raises four claims for relief in his complaint. Doc. 1-2 at 17. Specifically, he asserts that Defendants' actions violated: (1) his right to due process under the Fourteenth Amendment; (2) his right to liberty under the Fourteenth Amendment; (3) Article II, § 18 of the New Mexico Constitution; and (4) an implied written contract established by Defendants' Fire Policy and Procedures Manual (FPPM) and other rules, policies, and law. Id.

         On September 15, 2017, Defendants moved for summary judgment on all four of Plaintiff's claims. Doc. 18. Because Defendants asserted a qualified immunity defense in their summary judgment motion, the Court granted Defendants' motion to stay discovery. Doc. 23. Plaintiff then requested limited discovery pursuant to Fed.R.Civ.P. 56(d), which the Court granted in part. See Fed. R. Civ. P. 56(d) (allowing for limited discovery relating to a summary judgment motion “when facts are unavailable to the nonmovant”); Doc. 24, Doc. 30. The parties were subsequently given an ...

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