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Stout v. City of Albuquerque

United States District Court, D. New Mexico

August 29, 2019

REGINA STOUT, Plaintiff,
v.
CITY OF ALBUQUERQUE, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING REMAND

         Plaintiff Regina Stout filed a complaint against the Defendant City of Albuquerque for state-law violations of the Fair Pay for Women Act, N.M. Stat. Ann. §§ 28-23-1 - 28-23-6 (FPWA), the Human Rights Act, N.M. Stat. Ann. § 28-1-7(A) (NMHRA), breach of an employment contract, and breach of the covenant of good faith and fair dealing. Defendant removed the case to federal court, citing section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (LMRA), under which claims requiring interpretation of a collective bargaining agreement (CBA) are reclassified as federal claims.

         Plaintiff moved for an order remanding the case to state court pursuant to 28 U.S.C. § 1447 [ECF No. 9]. After carefully considering the motion, briefs, and relevant law, the Court grants Plaintiff's motion and remands the case to state court.

         I. Factual Background

         Plaintiff resides in Bernalillo County and works as a Property and Evidence Technician for the City of Albuquerque (the City). See Pl.'s Complaint ¶¶ 1, 3, 24, Doc. 1-2 (Compl.). Plaintiff has been employed by the City continuously since November 6, 1999. Id. at ¶ 3. Although not mentioned in Plaintiff's complaint, Defendant points out the following undisputed facts in its response brief that provide helpful context to Plaintiff's motion. The position of Property and Evidence Technician is within the bargaining unit represented by the American Federation of State, County and Municipal Employees, Local 3022, commonly referred to as the “M-Series.” See Def.'s Resp. Br., Doc. 14 at 3. As an M-Series employee, Plaintiff's bargaining unit is covered by a collective bargaining agreement. Id.

         Plaintiff started at the City of Albuquerque as a reservation clerk in the transit department. See Compl. at ¶ 19. On August 6, 2003, Plaintiff was promoted to the position of Property and Evidence Technician at a salary of $11.32/hour at Grade C-28, Step 2. Id. at ¶ 22. This position was reclassified as a Grade M-12, Step 3 position and Plaintiff's salary was increased to $12.97/hour on January 13, 2006. Id. at ¶ 24. Since August 5, 2017, Plaintiff has been paid $15.91/hour by the City. Id. at ¶ 27.

         Plaintiff alleges that Defendant hired other male evidence technicians and handlers to the Evidence Unit with equal or less experience and qualifications than Plaintiff to perform the same or similar tasks. Id. at ¶ 58. For instance, Samuel Giron was a 311 Operator, an unclassified position, who was promoted to an Evidence Handler to a M-11, Step 8 at a rate of $18.74/hour. Id. at ¶ 62-65. City policies require that an unclassified employee moving into a classified position be treated as a new hire and placed as a M-11, Step 1 at $11.86/hour. Id. at ¶ 64. The City did not advertise the position Mr. Giron was hired for. Id. at ¶ 66. Mr. Giron was subsequently promoted to a Property and Evidence Technician on June 30, 2012 as a M-12, Step 6 at a pay rate of $22.48/hour but that classified position was not advertised. Id. at ¶ 67-68. The City was paying Giron $23.28/hour as of August 16, 2016. Id. at ¶ 69.

         Another male employee, Clifford Hilliard, was hired as a property and evidence handler, M-12, on November 20, 2010. Id. at ¶ 72. Mr. Hilliard was hired for the position after the City cancelled an advertisement on November 5, 2010 for the position of “police property and evidence handler, ” a M-12 position. Id. at ¶ 71. Mr. Hilliard was promoted to a M-11, Step 4 at $16.32/hour on January 9, 2015 and promoted to M-12, Step 4 on July 25, 2015 with a rate of pay of $18.52/hour. Id. at ¶ 73, 75. As of August 16, 2016, Mr. Hilliard was paid $19.18/hour. Id. at ¶ 76.

         Matthew Segura was hired by the City on October 4, 2003 as a Telecommunications Operator I. Id. at ¶ 83. Mr. Segura was allegedly hired as an Evidence Technician, M-11, Step 6 on September 8, 2012 but at the time of his hiring, the City did not advertise this classified position. Id. at ¶¶ 77, 78. Plaintiff alleges that Mr. Segura was not qualified for this position at the time of his hiring. Id. at ¶ 84. From August 4, 2014 to August 18, 2014, the City advertised the position of Police Property and Evidence Technician M-12 internally for City employees only, and received 37 applications. Id. at ¶ 79. The City promoted Mr. Segura to Property and Evidence Technician as an M-12, Step 6 at a pay rate of $22.48/hour on September 20, 2014 despite not possessing the basic qualifications for the position. Id. at ¶¶ 82, 84. As of August 16, 2016, the City was paying Mr. Segura $23.28/hour as of August 16, 2016. Id. at ¶ 85.

         James East was employed by the City as a M-12, Step 1 on August 4, 2008 and after probation he became a M-12, Step 2 and compensated at $14.39/hour. Id. at ¶ 86. Later, Mr. East left the Evidence Unit for another position at the City. Id. at ¶ 87. From June 11, 2015 to June 25, 2015, the City advertised the position of Police Property and Evidence Handler M-11 and on August 22, 2015, Mr. East returned to the Evidence Unit on an administrative transfer as an M-11, Step 4 and was compensated at $16.32/hour. Id. at ¶ 88, 89. Mr. East was allegedly promoted to an M-12, Step 4, and is currently paid $19.37/hour. Id. at ¶ 91.

         Mike Monette was employed by the Albuquerque Police Department from November 2009 to December 2016 as a specially trained police officer. Id. at ¶ 92. From February 14, 2015 until February 4, 2017, the City listed his employment as “layoff” and after he was listed as “recall.” Id. at ¶ 93. On February 4, 2017, the City allegedly employed Mr. Monette as an Evidence Technician as an M-11 and was paid $20.73/hour. Id. at ¶ 94. At the time of Mr. Monette's hiring, the City did not advertise the classified position and Mr. Monette did not possess the necessary requirements for the position of Evidence Technician at the time he was hired. Id. at ¶ 96.

         In March 2015, Plaintiff applied to a Police Property and Evidence Supervisor E-15 position and was allegedly passed over by a less qualified candidate, James Kaplan, based on gender-based discrimination against her. Id. at ¶¶ 100, 104, 105, 109, 114. During her interview for the position, City employees who interviewed her were rude, demeaning, and condescending. Id. at ¶ 197. When she asked Mr. Dodge to clarify a question, he responded in a slow, deliberate manner and said, “Let me repeat [the question] in a way you will understand.” Id. at ¶ 106.

         Further, Plaintiff alleges she has more experience that the current Police Property and Evidence Supervisor, Michael Sullivan. Id. at ¶¶ 122-128. Plaintiff alleges that the City pays Mr. Sullivan $25.87/hour. Id. at ¶ 128. In August 2016, the City raised the hourly pay rates of Hilliard, Giron, and Segura, all the male members of the Evidence Unit, but she was not given a raise. Id. at ¶ 131. Plaintiff alleges that this pay raise was a violation of City personnel rules and policies and Merit System Ordinance. Id. at ¶ 130. When she asked Mr. Sullivan about a pay raise, he asked Plaintiff, “why do you need a raise if your husband is a sergeant?” Id. at ¶ 132.

         Plaintiff discovered in June 2016 that the City paid male hires more than her. Id. at ¶ 134. On December 29, 2016, she brought her concern to the attention of the AFSCME union, and the union submitted a prohibited practice complaint (PPC) to the Labor Management Relations Board. Id. at ¶ 135. The city labor board accepted the PPC and assigned it a number. Id. at ¶ 136. The City responded to the complaint with an answer. Id. at ¶ 138. Further, Plaintiff alleges that the Equal Employment Opportunity Commission found probable cause against the City and referred to the Department of Justice its findings that the City violated the federal Equal Pay Act. Id. at ¶ 147.

         According to Plaintiff, the City's personnel policies regarding hiring are robust and pay rates are not the result of a seniority system or merit system or collective bargaining agreement. Id. at ¶ 55. She alleges that Defendant's policies require that vacant positions will be filled with the most qualified candidates, and all classified vacancies will be advertised to city employees with limited exceptions. Id. at ¶ 49. She also alleges that any pay increase above a normal promotional process requires detailed written justification to the Human Resources Director and approval by the Chief Administrative Officer. Id. at ¶ 53. Further, she alleges the policies prohibit discrimination on the basis of sex. Id. at ¶ 54.

         Plaintiff asserted statutory claims under New Mexico's Fair Pay for Women Act and Human Rights Act, and common law claims for breach of an employment contract, and breach of the covenant of good faith and fair dealing. Id. at ¶¶ 151-182.

         II. The ...


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