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Salehpoor v. New Mexico Institute of Mining & Technology

Court of Appeals of New Mexico

June 6, 2019

KARIM SALEHPOOR, Plaintiff-Appellee,
v.
NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Defendant-Appellant, and WARREN OSTERGREN, DR. TOM ENGLER, BOARD OF REGENTS OF THE NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, and DANIEL LOPEZ, Defendants.

          APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY Matthew G. Reynolds, District Judge

          Santiago E. Juarez Albuquerque, NM for Appellee.

          Keleher & McLeod, P.A. Sean Olivas Chris R. Marquez Albuquerque, NM for Appellant

          OPINION

          IVES, Judge.

         {¶1} Plaintiff Karim Salehpoor sued his former employer, Defendant New Mexico Institute of Mining and Technology, claiming, among other things, that Defendant wrongfully discharged him in violation of his employment contract. Defendant moved for summary judgment based on two theories of sovereign immunity under NMSA 1978, Section 37-1-23 (1976): (1) that Plaintiffs claim was time-barred and (2) that his claim was not based on a valid written contract. The district court denied the motion. We granted Defendant's petition for a writ of error pursuant to Rule 12-503 NMRA to review the nonfinal order. We affirm.

         FACTS AND PROCEDURAL HISTORY

         {¶2} Beginning in January 2008, Defendant employed Plaintiff as a tenure-track mechanical engineering professor under a series of written one-year employment contracts, the most recent of which covered the 2011/2012 academic year from August 8, 2011, through May 11, 2012. On April 2, 2012, Defendant's Vice President of Academic Affairs sent Plaintiff a memorandum informing him that Defendant would not enter into a new employment contract with him and directing him to "surrender all [of Defendant's] property[, ] including keys[, ]" by May 11, 2012. Plaintiff continued working for Defendant through that date.

         {¶3} Plaintiff commenced this lawsuit on May 12, 2014, alleging that Defendant had breached their contract by wrongfully terminating him in violation of "the total employment agreement."[1] See generally Garcia v. Middle Rio Grande Conservancy Dist, 1996-NMSC-029, 121 N.M. 728, 918 P.2d 7 (holding that an implied employment contract based on a written personnel policy is a "written contract" for purposes of Section 37-1-23(A)); Whittington v. State Dep't of Pub. Safety, 2004-NMCA-124, 136 N.M. 503, 100 P.3d 209 (making clear that the implied employment contract doctrine is applicable beyond the context of at-will employment and contractual terms relating to termination). Plaintiff alleged that his employment had ended on May 11, 2012, [2] when Defendant "breached [the] employment contract. . . by terminating [him, ]" and that Defendant also breached the employment contract "[o]n or about April 2012" when it gave "notice of the impending termination of Plaintiff." Plaintiff alleged that his contract with Defendant "was reinforced and amplified by certain written personnel practices, memoranda, policies, and procedures . . . based upon which Plaintiff had a reasonable expectation of continued employment with discharge only for good cause proven." The complaint specified that Defendant's

written policies and procedures and actual practices included a program of "progressive discipline" through which [Defendant] created self-imposed limitations on any discharge or discipline of an employee. These written policies and actual practices expressly limited the grounds for discharge and created self[-]imposed mandatory pre-termination steps and procedures.

         {¶4} Defendant moved for summary judgment on Plaintiffs wrongful discharge claim based on two theories of sovereign immunity under Section 37-1-23. Defendant argued first that Section 3 7-1-23(B) barred Plaintiffs claim for wrongful discharge based on breach of contract because Plaintiff filed his complaint more than two years after his claim accrued. The parties did not dispute that Defendant gave Plaintiff notice of his termination on April 2, 2012, that Plaintiffs' employment terminated May 11, 2012, or that Plaintiff filed his complaint on May 12, 2014. Whether summary judgment was appropriate hinged on whether Plaintiff brought his claim "within two years from the time of accrual." Section 37-l-23(B). Plaintiff argued that his claim accrued from the date of his termination, May 11, 2012, while Defendant argued that Plaintiffs claim accrued on April 2, 2012, when Defendant gave Plaintiff the notice of nonrenewal.

         {¶5} As an additional basis for summary judgment, Defendant argued that Section 37-1-23(A) barred Plaintiffs claim because it was not based on a valid written contract. This was so, according to Defendant, because Plaintiff had failed to allege that Defendant had breached a specific contractual term of any policy, employment manual, or other document. In response, Plaintiff pointed to his interrogatory answers and affidavit, which referenced a document, titled "Regulations Governing Academic Freedom and Tenure" (the Regulations), purportedly issued by Defendant. In his affidavit, Plaintiff alleged that Defendant violated various provisions of the Regulations, including the procedure for providing notice of termination to employees and the prohibition against retaliatory termination. Defendant replied, claiming that Plaintiff had failed to produce in discovery or in response to the summary judgment motion any document that included the implied contract terms Defendant had allegedly breached.

         {¶6} During the hearing on the summary judgment motion, Plaintiff s counsel read a document that he identified as the Regulations into the record. Defendant objected on the ground that Plaintiff had failed to produce the document in discovery and asserted that it was therefore unable to identify the document from which Plaintiffs counsel had read. The district court ordered supplemental briefing and directed Plaintiff to produce the document he had read from during the hearing. Plaintiff attached the Regulations to his supplemental brief along with responses to requests for production that identified the Regulations. In response, Defendant complained once again that Plaintiff had never produced the Regulations in discovery and argued that Plaintiff had failed to authenticate the Regulations.

         {¶7} The district court denied Defendant's summary judgment motion. We granted Defendant's petition for a writ of ...


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