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Balderrama v. City of Alamogordo

United States District Court, D. New Mexico

May 21, 2019

THE CITY OF ALAMOGORDO, a Municipal Corporation, and MARGARET PALUCH, individually and in her official capacity as acting City Manager, Defendants.



         THIS MATTER comes before the Court on Defendants City of Alamogordo and City Manager Margaret Paluch's[1] motion for summary judgment. (Doc. 39). They argue Plaintiff Edwardo Balderrama cannot establish a jury question on his claims for racial discrimination under federal and state law as well as breach of an implied employment contract when the City promoted Bob Johnson to the position of Engineering Manager instead of Balderrama. With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. § 636(c); (Doc. 13), the Court has considered the parties' submissions and the record before it. Having done so, the Court concludes that as to his single cause of action under federal law, Balderrama fails to show the City's proffered reason for promoting Johnson over him-Johnson's superior qualifications-was a pretext for the City's true discriminatory animus. Because summary judgment is appropriate on Balderrama's only federal claim, the Court declines to exercise supplemental jurisdiction over the remainder of Balderrama's complaint. Accordingly, the Court GRANTS in part the City's motion for summary judgment, DISMISSES Count II of the complaint with prejudice, and DISMISSES Counts I and III without prejudice.



         Balderrama began employment with the City in 1993 as a draftsman in the Engineering Department. (Doc. 1, Compl., ¶ 11; Doc, 39-1, Balderrama Dep., at 2). Since 2001, Balderrama has worked as a project manager. (Id., at 2-3). Balderrama is Hispanic. (Doc. 76-2, Balderrama Dep., at 2).

         After years of trying to recruit a City Engineer, the City decided in November 2016 to combine that position with the Contract Coordinator into a single job called “Engineering Manager.” (Doc. 39-2, Josselyn Aff., ¶3-4; Doc. 76-1, Josselyn Dep., at 5). The City promoted Bob Johnson, a white male and the existing Contacts Coordinator, to the new position. (Id., ¶¶ 5, 8; Doc. 76-2, at 2;). The City did not advertise for Engineering Manager or allow anyone to apply for the slot. (Doc. 39-3, Paluch Dep., at 3). Balderrama learnt of the new position and Johnson's selection in a meeting on November 3, 2016 when the City Manager announced Johnson's promotion. (Doc. 76-9, Balderrama Grievance; Doc. 76-5, Paluch Dep. at 5).

         Balderrama believes the City was required, pursuant to its personnel policy, to officially create and authorize the position by formulating a job description as well as advertise it. The City insists its ordinances allowed the City to promote Johnson “for the good of the City” without posting or competitive selection. (Doc. 39-2, ¶7). On seven prior occasions, the City “transferred, promoted or reclassified [employees] without posting or advertising the positions[.]” (Id., at ¶11).

         Combining the positions saved the City about $95, 000 annually. (Id., ¶ 9). “It was a consolidation of duties that made for more effective processes in management of major function.” (Doc. 78-1, Paluch Dep., at 7). The City did not undertake a similar analysis for combining Balderrama's project-manager position, but in responses to subsequent written discovery identified a savings equal to or greater than with Johnson's previous position. (Doc. 76-4, at 2). The City did, however, consider Balderrama and another project manager in the Engineering Department for the new spot. (Doc. 39-3, at 3). In a job description approved after Johnson was selected, the City specified the Engineering Manager required three years of supervisory experience. (Doc. 39-2, ¶6). In the City's view, Balderrama did not possess this experience. (Doc. 76-1, at 8).

         Balderrama is not and was “not directly responsible for any supervision” at the City. (Doc. 76-2, Balderrama Dep., at 3). At one point, Balderrama oversaw a GIS technician “for a brief time.” (Id.). Indirectly, Balderrama supervises inspectors: he tell[s] them what [he] expect[s] from them on [his] projects” as the “eyes and ears in the field.” (Id., at 3-4). Balderrama lacks authority to discipline the inspectors, hire or fire them, or evaluate their performance. (Id., at 4). Before his employment at the City, Balderrama supervised five “drafters” from 1986 to 1989 while working at Visions In Architecture in Albuquerque. (Id.). Ultimately, the City determined that Bob Johnson had “more relevant supervisory experience than the other internal candidates” and offered him the job on that basis. (Doc. 39-2, ¶ 7; Doc. 78-3, Paluch Dep., at 2).


         Balderrama filed suit on February 9, 2018. (Doc. 1). In his four-count complaint, Balderrama alleges the City's decision to promote Johnson over him amounts to racial discrimination prohibited by the New Mexico Human Rights Act and 42 U.S.C. § 1981 (Counts I and II), breaches an implied employment contract (Count III), and entitles him to punitive damages[2] against the Manager (Count IV). (Doc. 1). The City moves for summary judgment on all claims. (Doc. 39). The City Manager asserts entitlement to qualified immunity. (Id.).


         Qualified immunity entitles a municipal official sued under 42 U.S.C. § 1983 to avoid trial and the other burdens of litigation arising from the performance of her discretionary functions. See Quinn v. Young, 780 F.3d 998 (10th Cir. 2015). To give effect to the doctrine, the Court views the parties' respective burdens on summary judgment differently. See Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008). To defeat qualified immunity on summary judgment, the plaintiff must satisfy “a strict two-part test” by establishing with record evidence (1) “the defendant's actions violated a [federal statutory] right” and (2) that right was “clearly established at the time of the conduct at issue.” Clark, 513 F.3d at 1222 (internal quotation marks and citation omitted). The Court may address the two prongs in whatever order it chooses “in light of the circumstances in the particular ...

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