United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
MOTION TO SUPPLEMENT COMPLAINT
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.
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.
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.
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. 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.
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. ¶
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.
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.
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.
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.
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.
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
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
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:
CONDITIONS OF HIRE
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
Doc. 18-1 at 6-8; Doc. 21-1 at 11.
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.
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.
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.
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 ...