United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING REMAND
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ¶¶