United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT, DISMISSING COUNT II OF PLAINTIFF'S
COMPLAINT WITH PREJUDICE, AND DISMISSING COUNTS I AND III
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendants City of
Alamogordo and City Manager Margaret
Paluch's 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.
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).
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).
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).
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
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).
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 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.
OF REVIEW 
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 ...