Salazar v. City of Albuquerque (776 F. Supp. 2d 1217, 2011)

Citations

776 F. Supp. 2d 1217

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss Plaintiffs Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed .August 10, 2010 (Doc. 3) (“Motion”). The Court held a hearing on October 27, 2010. The primary issues are: (i) whether the Court should dismiss Plaintiff Paul Salazar’s procedural due-process, substantive due-process, and breach-of-employment-contract and duty-of-good-faith- and-fair-dealing claims, because he has failed to set forth allegations that, taken as true, establish those claims; (ii) whether the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -29 (“NMTCA”) has waived liability for defamation and malicious-abuse-of-process claims; and (in) whether the Court should dismiss Salazar’s punitive damages Count. The Court grants in part and denies in part the Motion. The Court dismisses Salazar’s procedural due-process claim, because the Defendants’ appeal of the Personnel Board’s decision did not violate his procedural due-process rights. The Court dismisses Salazar’s common-law tort claims, other than his claims that are based on Defendant Transit Department Director Greg Payne’s post-employment comments, because the NMTCA does not waive the Defendants’ immunity for defamation and malicious abuse of process. The Court dismisses Salazar’s breach-of-employment-contract and duty-of-good-faith-and-fair-dealing claim, because the Charter of the City of Albuquerque does not prohibit the mayor from commenting on any matter of public concern that involves an employment decision, because Salazar has not shown the City Charter was incorporated into his employment contract, and because the Defendants did not breach his contract or their duty when they exercised their statutory right to appeal. The Court denies the Defendants City of Albuquerque’s and Mayor Richard J. Berry’s request to dismiss Salazar’s liberty-interest claim, because Salazar has adequately set forth factual allegations showing that the alleged defamatory statements were made in the course of Salazar’s termination and because reinstatement does not moot Salazar’s claim. Although punitive damages may be available under Salazar’s surviving claims, the Court dismisses Salazar’s punitive damages Count, because punitive damages are not a stand alone claim.

FACTUAL BACKGROUND

Salazar was a tenured full-time City employee. See Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed July 8, 2010 (Doc. 1) (“Complaint”). Salazar began working as a City bus driver on March 25, 2000. See id. ¶ 8, at 2. He was continuously employed until February 28, 2007, when the Transit Department placed him on leave with pay pending investigation. See id. ¶ 8, at 2.

The City of Albuquerque terminated Salazar’s employment for reasons connected with the allegation that he was a sex offender and a child molester. Salazar’s ex-wife had accused him “of improperly touching their 4-year-old daughter during a court-approved Father’s Day weekend visitation in 2001.” Complaint ¶ 9, at 3. Salazar maintains that these allegations are false.

On October 11, 2006, Salazar pled “no contest” to the charge of attempted touching of his daughter, and the state court entered its Judgment and Order of Conditional Discharge, which stated that “without adjudication of guilt” the charges against him would be dismissed “pursuant to this Conditional Discharge.” Complaint ¶ 10, at 3. Salazar maintains his innocence. On February 27, 2007, a State Parole Officer delivered a letter to the Transit Department stating that “your employee, Paul Salazar, is a convicted sex offender and/or is under the supervision of the Probation-Parole Division for a sexual offense. He has been adjudicated guilty of the following crime(s): Attempted Sexual Contact of a Minor.” Complaint ¶ 11, at 3. On July 9, 2007, categorizing him as “a convicted sex offender,” the City of Albuquerque terminated Salazar’s employment with the City of Albuquerque. Complaint ¶ 13, at 3.

The City of Albuquerque unsuccessfully attempted to defend its actions in a Personnel Board hearing. On June 11, 2008, after a three-day evidentiary hearing, the Personal Board found that Salazar was terminated without just cause. See Complaint ¶ 14, at 3. The Personnel Board ordered the City of Albuquerque to reinstate Salazar with back pay and benefits, and to expunge Salazar’s disciplinary infraction from his record. See Complaint ¶ 14, at 3.

Salazar alleges that Payne and Defendant Mayor Martin Chavez refused to reinstate Salazar; instead, they publicly and repeatedly called Salazar a “sex offender” and a “child molester,” and announced that they would not reinstate him. Complaint ¶ 15, at 4. The Albuquerque Journal reported that, on June 17, 2008, Chavez stated:

[H]e plans to appeal the personnel board’s ruling. If he loses, Chavez said, he will take the matter to court. “This guy is not going to be around kids. Not while I am mayor,” Chavez said. “This is outrageous. What parent wants their kid on a bus with someone like that?”

Complaint ¶ 16, at 4 (quoting T. Wilham, City Must Rehire Sex Offender Bus Driver, Albuquerque J., June 18, 2008 at Al). The same article quotes Payne as stating:

There is no question if he drives a bus he will have contact with children. The public would recoil if we hired someone like this. It’s almost as if the crime didn’t happen. I don’t know how someone could reach this conclusion unless they are in a bubble and detached from reality.

Complaint ¶ 18, at 4 (quoting Wilham, supra).

The City of Albuquerque unsuccessfully appealed the Personnel Board’s ruling to the Second Judicial District Court of New Mexico. On January 7, 2009, the Honorable Valerie M. Huling, New Mexico District Court Judge, affirmed the Personnel Board’s decision on due-process grounds, but remanded the case back to the Personnel Board to determine whether the City of Albuquerque had just cause to terminate Salazar’s employment “irrespective of the ... due process violations.” Complaint ¶ 20, at 5. On August 12, 2009, the Personnel Board held unanimously that the City of Albuquerque did not meet its burden of proof to demonstrate that Salazar was fired for just cause and again ordered the City of Albuquerque to reinstate him in his position, to pay his back pay, to restore his benefits, and to expunge his disciplinary record. See Complaint ¶ 21, at 5. The City of Albuquerque again appealed to the state district court. Salazar contends that the City of Albuquerque continues to fail “to comply with their promises and obligations to return Mr. Salazar to work, pay his back wages, reinstate his benefits, and expunge his record.” Complaint ¶ 30, at 7.

On January 4, 2010, the City of Albuquerque’s attorney wrote to Salazar’s attorney:

The City has decided to reinstate Paul Salazar to a position with the City. He will need to pass the pre-employment physical and other tests associated with his return. The City will pay him back wages and any overtime wages he would have earned. The City will dismiss its appeal of the disciplinary action. I will let you know when he is to report to work.

Complaint ¶ 23, at 5-6 (quoting Electronic transmission from Paula Forney to Paul Livingston with copies to Eugene Moser, Bruce Rizzieri, and Mary L. Scott). City of Albuquerque Director of Human Resources, Eugene Moser, confirmed that “Salazar will be returning as a Motor Coach Operator once he passes the requisite drug screening.” Id. ¶ 24, at 6. Salazar took the City of Albuquerque’s preemployment physical examination and drug test, and passed both. See id. ¶ 27, at 7.

On February 4, 2010, Payne, who was no longer a City of Albuquerque employee, made a statement to KOB-TV-4:

I think the personnel board is absolutely crazy to say we need to bring this individual back, put him behind the wheel of a bus and give him $100,000. That’s nuts.... If Mayor Berry was forced to re-hire him, he should have given him a position where he’s not around children.

Complaint ¶25, at 6. On February 11, 2010, Albuquerque news media reported that the City of Albuquerque planned to challenge Salazar’s reinstatement. See Complaint ¶ 29, at 7. Berry then rescinded the promise to reinstate Salazar. See Complaint ¶ 29, at 7. In his Complaint, Salazar asserts that the “Defendants have done nothing to comply with their promises and obligations to return Mr. Salazar to work, pay his back wages, reinstate his benefits, and expunge his record.” Complaint ¶ 30, at 7. The City of Albuquerque’s Charter prohibits the mayor from “becoming involved in the hiring, promotion, demotion, or discharge of any city employee.” Complaint ¶ 5, at 2.

PROCEDURAL BACKGROUND

On July 8, 2010, Salazar filed his Complaint. Salazar brings six Counts against the Defendants: (i) violation of right to procedural due-process, Count I; (ii) violation of right to substantive due-process, Count II; (iii) defamation per se, Count III; (iv) malicious abuse of process, Count IV; (v) breach of employment contract and duty of good faith and fair dealing, Count V; and (vi) punitive damages, Count VI. See Complaint Counts I-VI, at 8-13.

The City of Albuquerque and Berry, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, move the Court to dismiss Salazar’s Complaint against all Defendants. The City of Albuquerque and Berry set out the grounds for their motion more fully in an accompanying memorandum in support of their motion to dismiss Salazar’s Complaint. See Defendants’ Memorandum in Support of Motion to Dismiss Plaintiffs Complaint for Violation of Statutory, Contractual, and Constitutional Rights, filed August 10, 2010 (Doc. 4) (“Memorandum”). The City of Albuquerque and Berry contend that the Court should dismiss Salazar’s Complaint as to all Defendants, although the City of Albuquerque can ascertain that only the City of Albuquerque and Berry have been served at the time they filed their Motion. The City of Albuquerque and Berry contend that, taking all the allegations in the Complaint as true, the allegations do not, as a matter of law, establish Salazar’s claims. The City of Albuquerque and Berry further contend that the Defendants are immune from Salazar’s tort claim.

1. Post-Motion Events.

As of the date that the City of Albuquerque and Berry filed their motion, the City of Albuquerque’s appeal of the latest Personnel Board ruling was still pending in the Second Judicial District Court in CV 2009-10465. See Complaint ¶ 22, at 5. The state court has yet to rule whether the City of Albuquerque properly terminated Salazar. The City of Albuquerque represents that, contemporaneously with its Motion, it is withdrawing its appeal in state district court and acting to reinstate Salazar. See Memorandum at 3. It is also moving in state court to provide him a name-clearing hearing. See Memorandum at 3.

2. Salazar’s Response.

On August 11, 2010, Salazar filed his Response to Defendants’ Motion to Dismiss. See Doc. (“Response”). Salazar argues that the Court should deny the City of Albuquerque’s and Berry’s Motion. Salazar argues that he adequately alleged facts in support of his claims in his Complaint. He contends that his allegations are not threadbare recitals of the elements of the claims. Salazar does not address the City of Albuquerque’s and Berry’s contention that they are immune from Salazar’s tort claims, other than to assert that the contentions “are not worthy of serious consideration.” Response at 9.

On September 30, 2010, the City of Albuquerque and Berry filed their Defendants’ Reply to Plaintiffs Response to Motion to Dismiss Plaintiffs Complaint for Violation of Statutory, Contractual, and Constituional [sic] Rights. See Doc. 10. The City of Albuquerque and Berry clarified that, “[f]or purposes of the present Motion, Defendants are not controverting Plaintiffs allegations. Rather, they contend that even when taken as true, they do not state a claim upon which relief may be granted.” Reply at 2.

The City of Albuquerque reinstated Salazar as a motorcoach operator for the Transit Department on August 28, 2010, and then administratively transferred him to a position in the City of Albuquerque’s Solid Waste Management Department as a clean city operator, which constituted approximately a three-dollar-per-hour pay raise. The City of Albuquerque and Berry contend that Salazar is qualified to perform this job. Salazar failed to appear for work on September 13, 2010. Approximately that same day, “Salazar was sent notice [at] his home address that he must appear for work or risk being considered to have abandoned his job, pursuant to the City’s Personnel Rules and Regulations, which state that three consecutive days of unauthorized absences constitute an automatic resignation and job abandonment.” Affidavit of Ismael Montanez, Assistant Superintendent for Human Resources ¶ 5, at 2 (executed September 30, 2010). Salazar did not appear for work. On or about September 17 and 20, 2010, Salazar was sent a notice and a revised notice of predetermination hearing for his failure to appear for work. The predetermination hearing was held September 23, 2010. Salazar did not appear for that hearing, but his attorney, Mr. Livingston, responded in writing to the notice of predetermination hearing. On September 27, 2010 the City of Albuquerque terminated Salazar for abandoning his job.

At the October 27, 2010 hearing, Salazar conceded that he did not have a procedural due-process claim at the time the Personnel Board first ordered that the City of Albuquerque reinstate him. See Transcript of Hearing at 7:20-24 (Court, Livingston) (“Tr.”). The City of Albuquerque and Berry conceded that, as a tenured employee, Salazar had a property interest in his continued employment. See Tr. at 19:20-23 (Court, Garcia). The City of Albuquerque and Berry asserted that Salazar was transferred to the Solid Waste Management Department for his own protection, because this case has been extensively publicized, and they are concerned what a passenger might say or do if Salazar was reinstated as a bus driver. See Tr. at 21:5-17 (Garcia). Salazar agreed that the administrative process provided a name-clearing hearing, but argued that it was rendered ineffective because the city appealed the Personnel Board’s ruling and refused to reinstate Salazar as a bus driver. See Tr. at 39:6-14 (Livingston). The City of Albuquerque represented that it would provide Salazar with a name-clearing hearing. See Tr. at 33:16-19 (“And I can represent to the Court today that if Mr. Salazar wants a name clearing hearing with the City, the City will offer it — -will make it make it happen as soon as possible.”).

LAW REGARDING MOTIONS TO DISMISS UNDER RULE 12(b)(6)

Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). “[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177. The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).

LAW REGARDING CONSTITUTIONAL DOCTRINE OF MOOTNESS

Article III, Section 2 of the United States Constitution limits the federal courts’ jurisdiction to actual cases and controversies. “Federal courts are without authority to decide questions that cannot affect the rights of litigants in the case before them.” Ford v. Sully, 773 F.Supp. 1457, 1464 (D.Kan.1991) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). See Johansen v. City of Bartlesville, Okla., 862 F.2d 1423, 1426 (10th Cir.1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir.1988). “To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Ariz., 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010). Accordingly, if a, case is moot, or becomes moot during any stage of the case, the court does not have jurisdiction to hear the case. A case becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)).

The court should not be quick to dismiss a claim for lack of jurisdiction. “Before deciding that there is no jurisdiction, the district court must look at the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and the laws of the United States.” Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Jurisdiction is not dependent on whether the plaintiff will succeed in his cause of action; jurisdiction is determined before the details of the cause of action, both in law and fact, are considered. See Bell v. Hood, 327 U.S. at 682, 66 S.Ct. 773.

LAW REGARDING DUE PROCESS

The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural-due-process rights were violated: (i) “Did the individual possess a protected property interest to which due process protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of process?” Camuglia v. The City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)). As for the second step, ordinarily one who has a protected property interest is entitled to some sort of hearing before the government acts to impair that interest, although the hearing need not necessarily provide all, or even most, of the protections a trial affords. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government’s interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. “[D]ue process is flexible and calls [only] for such procedural protections as the particular situation demands.” Id. at 334, 96 S.Ct. 893 (internal quotation marks and brackets omitted). For example, “[w]here ... the state must act quickly, a meaningful postdeprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d at 1189. See also Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.1989) (removal of child from parents’ custody requires predeprivation hearing “except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” (internal quotation marks omitted)).

LAW REGARDING LIBERTY-INTEREST VIOLATIONS

The Due Process Clause of the Fourteenth Amendment requires that no state “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 2. The Supreme Court has stated that “there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.

408 U.S. at 572, 92 S.Ct. 2701 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). In Board of Regents v. Roth, the Supreme Court noted in dicta that a state might abridge a liberty interest if, in declining to renew an employment contract, the state made charges of dishonesty or immorality or imposed “a stigma or other disability that foreclosed [an employee’s] freedom to take advantage of other employment opportunities.” 408 U.S. at 573, 92 S.Ct. 2701.

In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court “held that defamation, standing alone, was not sufficient to establish a claim for deprivation of a liberty interest.” Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d 723, 726 (10th Cir.2000). The Supreme Court addressed a case in which local police chiefs included the plaintiffs photograph in a “flyer” of “active shoplifters,” after the petitioner had been arrested for shoplifting. 424 U.S. at 697, 96 S.Ct. 1155. The authorities eventually dismissed the shoplifting charge, and the plaintiff filed suit under 42 U.S.C. § 1983 against the police chiefs, alleging that the officials’ actions inflicted a “stigma” to his reputation, because “the ‘active shoplifter’ designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities.” 424 U.S. at 697, 96 S.Ct. 1155.

The Supreme Court rejected the plaintiffs claim, holding that injury to reputation by itself was not a liberty interest that the Fourteenth Amendment protects. 424 U.S. at 708-09, 96 S.Ct. 1155. The Supreme Court

pointed out that [its] reference to a governmental employer stigmatizing an employee in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), was made in the context of the employer discharging or failing to rehire a plaintiff who claimed a liberty interest under the Fourteenth Amendment. Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation.

Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).

In Siegert v. Gilley, the Supreme Court revisited the question whether defamation can amount to a constitutional violation. A former government employee brought an action against a former supervisor alleging that his former supervisor, in response to a request for information on job performance, wrote a defamatory letter that deprived him of his constitutionally protected liberty interest in- his reputation without due process. The former supervisors letter stated:

that he “considered] Dr. Siegert to be both inept and unethical, perhaps the least trustworthy individual I have supervised in my thirteen years at [St. Elizabeths].” After receiving this letter, the Army Credentials Committee told Siegert that since “reports about him were ‘extremely unfavorable’ ... the committee was ... recommending that [Siegert] not be credentialed.”

500 U.S. at 228, 111 S.Ct. 1789 (alteration in original) (citations omitted). Siegert argued “that if the defendant acted with malice in defaming him, what he describes as the ‘stigma plus’ test of Paul v. Davis is met.” 500 U.S. at 234, 111 S.Ct. 1789. The Court rejected Siegert’s argument and held that he had not stated a liberty-interest claim, stating that its “decision in Paul v. Davis did not turn, however, on the state of mind of the defendant, but on the lack of any constitutional protection for the interest in reputation.” 500 U.S. at 234, 111 S.Ct. 1789. The Supreme Court stated:

The facts alleged by Siegert cannot, in the light of our decision in Paul v. Davis, be held to state a claim for denial of a constitutional right. This is not a suit against the United States under the Federal Tort Claims Act — such a suit could not be brought, in the light of the exemption in that Act for claims based on defamation, see 28 U.S.C. § 2680(h) — but a suit against Siegert’s superior at St. Elizabeths Hospital. The alleged defamation was not uttered incident to the termination of Siegert’s employment by the hospital, since he voluntarily resigned from his position at the hospital, and the letter was written several weeks later. The statements contained in the letter would undoubtedly damage the reputation of one in his position, and impair his future employment prospects. But the plaintiff in Paul v. Davis similarly alleged serious impairment of his future employment opportunities as well as other harm. Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiffs reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action.

500 U.S. at 233-34, 111 S.Ct. 1789.

In Workman v. Jordan, 32 F.3d 475 (10th Cir.1994), the Tenth Circuit applied Supreme Court precedent to delineate a four-part test that a plaintiff must satisfy to demonstrate a deprivation of his liberty interest:

[A plaintiff] does have a liberty interest in his good name and reputation as it affects his protected property interest in continued employment. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981). However, [a plaintiff] must show how the government infringed upon this liberty interest. First, to be actionable, the statements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must be published.

32 F.3d at 480-81. See Melton v. City of Okla., 928 F.2d 920, 926-27 (10th Cir.1991) (en banc) (holding that elements are not disjunctive but must all be satisfied).

The first element requires that a plaintiff prove “the defendant made a statement impugning his or her good name, reputation, honor, or integrity.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 526 (10th Cir.1998). The statement must make a “false charge of sufficient opprobrium that would make the plaintiff an unlikely candidate for employment.” Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th Cir.1994) (“[A]n accusation that a police officer falsified a speeding ticket qualifies as a stigmatizing charge which amply supports that element of a liberty interest violation.”). Such accusations involve charges of “dishonesty or immorality.” Palmer v. City of Monticello, 31 F.3d at 1503. See Melton v. City of Okla., 928 F.2d at 927 (noting that “stigma is sufficient if it involves dishonesty, serious felony, manifest racism, serious mental illness, or the like” (citing Green v. St. Louis Housing Auth., 911 F.2d 65, 69 (8th Cir.1990))). Cf. Hill v. Dep’t of Air Force, 844 F.2d 1407, 1412 (10th Cir.1988) (noting that the denial of a security clearance does not violate a liberty interest, because “[a] clearance does not equate with passing judgment upon an individual’s character”); Sipes v. United States, 744 F.2d 1418, 1422 (10th Cir.1984) (rejecting a hberty-interest claim because the “plaintiff was discharged for being tardy, failing to schedule leave ..., and for engaging in ‘horseplay.’ These reasons, even assuming they were made public by the Government, do not call into question plaintiffs good name, reputation, honor and integrity”).

The “third element should have been phrased conjunctively: the statement must occur in the course of terminating the employee and must foreclose other employment opportunities.” Castillo v. Hobbs Mun. Sch. Bd., 315 Fed.Appx. 693, 697 (10th Cir.2009) (citing Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d at 728 n. 1). The Tenth Circuit has stated that, although “[a]t first blush, it appears that this prong of the test can be met either by statements made in the course of terminating an employee or, in the alternative, by any other statements that might foreclose other employment opportunities,” the requirement that “the statements must occur in the course of terminating the employee or must foreclose other employment opportunities” are not alternative bases for establishing a liberty-interest claim, because “Paul clearly requires that the defamation occur in the course of the termination of employment,” and “Sullivan [v. Stark, 808 F.2d 737 (10th Cir.1987)] did not abrogate or minimize this requirement.” Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d at 728 n. 1.

To determine if a statement was made “in the course of terminating the employee,” a court must consider the nature and the timing of an allegedly defamatory statement, and the statement need not be made before or during the termination. Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d at 727. In Renaud v. Wyoming Department of Family Services, the Tenth Circuit stated:

Timing is certainly one consideration in determining whether stigmatizing statements are made in the course of the termination of employment. We agree with Plaintiff that publication of defamatory statements need not be strictly contemporaneous with a termination to occur in the course of the termination of employment. That the allegedly defamatory statements occurred several days following the announcement of Plaintiffs termination does not, of itself, defeat his claim. Rather, we agree with the Ninth Circuit’s common-sense approach examining the nature of the alleged defamation, as well as its timing, to determine whether it occurred in the course of the termination. See Campanelli [v. Bockrath, 100 F.3d 1476, 1483 (9th Cir. 1996) ]. Roughly contemporaneous statements about the reasons for termination are not the same as roughly contemporaneous statements on other matters. What is relevant to our analysis is the “manner in which a public employee is terminated,” Miller [v. City of Mission, Kansas, 705 F.2d 368, 373 (10th Cir.1983) ], and the statements made “incident to the termination.” Siegert, 500 U.S. 226 at 234, 111 S.Ct. 1789. We therefore hold that a court must examine both the nature and the timing of an allegedly defamatory statement to determine whether it has been made in the course of an employee’s termination.

203 F.3d at 727.

In some circumstances, reinstatement can defeat a hberty-interest claim. In McCarty v. City of Bartlesville, 8 Fed.Appx. 867 (10th Cir.2001), the Tenth Circuit held that the plaintiffs could not prevail on their liberty-interest claim, because they were reinstated in the same position with back pay and benefits:

[T]he MeCartys are unable to establish that an actual deprivation occurred. The MeCartys were discharged but subsequently rehired with full backpay and benefits. We acknowledge that their rehire does not mean that they will be welcomed without reservation by their colleagues and superiors, but the loss of prospective job opportunities is too speculative to support a deprivation of a liberty interest claim under § 1983. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir.1989) (“[D]am-age to ‘prospective employment opportunities’ is too intangible to constitute a deprivation of a liberty or property interest.”); see also Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1559 (10th Cir.1993) (noting the same). The McCartys’ liberty interest claim necessarily fails.

8 Fed.Appx. at 872. See Castillo v. Hobbs Mun. Sch. Bd., 315 Fed.Appx. at 697 (“Mr. Castillo[, who was terminated from a school administrator position,] has failed to establish the third element.... Not only was Mr. Castillo offered a position as a first-grade teacher in Hobbs, but he secured a position as an administrator with a school in Raton.”). Reinstatement to a different position, however, does not necessarily defeat a liberty-interest claim and does not moot a plaintiffs claim. The Tenth Circuit held in Watson v. University of Utah Medical Center, 75 F.3d 569 (10th Cir.1996), that an employers’ statement that forecloses employment in a plaintiffs chosen field may satisfy Workman v. Jordan’s third element:

Finally, plaintiff made a showing that defendants’ actions foreclosed her future employment opportunities in her chosen field as a labor and delivery nurse. Although she was able to secure employment as a nurse, it was not as a labor and delivery nurse as a result of dissemination of information concerning her troubles in the relatively close-knit hospital community in Salt Lake City.

We believe plaintiff has set out a claim of a liberty deprivation — she has raised an issue of material fact whether “her dismissal resulted in the publication of information which was false and stigmatizing — information which had the general effect of curtailing her future freedom of choice or action.” Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir.1984). Thus, she has made a showing that she was entitled to notice and a due process hearing to clear her name. See Roth, 408 U.S. at 573 n. 12, 92 S.Ct. 2701 ... (“The purpose of such notice and hearing is to provide the person an opportunity to clear [her] name.”).

Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80.

The Tenth Circuit employs a demanding standard for showing that other employment opportunities are foreclosed when a plaintiff “was not terminated incident to an alleged defamation.” Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1155 (10th Cir.2001). In Sandoval v. City of Boulder, Colorado, 388 F.3d 1312 (10th Cir.2004), the Tenth Circuit asserted that a plaintiff who voluntarily resigns must be “categorically ineligible for other employment in either the public or the private sector”:

Further, the derogatory statements of which she complains were not made in the course of terminating her employment, since she resigned on her own accord. In Stidham v. Peace Officer Standards and Training, this court recognized the narrow interpretation of “foreclosing other employment opportunities” adopted by the Supreme Court in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), and held that the plaintiff had not alleged the deprivation of a protected liberty interest even where the defamatory statements had injured his reputation and thereby harmed his ability to obtain new employment. 265 F.3d 1144, 1154 (10th Cir.2001). Sandoval states that she has applied for, and been rejected from, approximately 100 positions for which she is qualified. Workman and Siegert require, however, that other employment opportunities must be “foreclosed” — not merely made difficult to obtain because of damage done to the plaintiffs reputation' — -if the derogatory statements were not made in the context of the defendant terminating her employment, and she does not claim that the negative information that emerged from the BRCC investigation has made her categorically ineligible for other employment in either the public or the private sector.

Sandoval v. City of Boulder, Colo., 388 F.3d at 1329.

On the last element, “the plaintiff must prove that ... the statement was published.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d at 526. If a plaintiff does not establish that a statement is published, he or she cannot state a valid liberty-interest claim. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 n. 13, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“As the Court of Appeals found, the failure to allege that the reasons for the dismissal were published dooms this claim.”); Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1235 (10th Cir.1998) (“Also fatal to plaintiffs liberty-interest claim is the fact that the defendants made no public statements disparaging Lancaster or harming his standing or associations in the community.” (citation and internal quotation marks omitted)); Sipes v. United States, 744 F.2d at 1421 (“We conclude that plaintiffs termination did not implicate a liberty interest for two reasons. First, there is no evidence that the allegedly stigmatizing evidence was made public by the Government.”). “A person who establishes a liberty-interest deprivation is entitled to a name-clearing hearing.” Evers v. Regents of Univ. of Colo., 509 F.3d 1304, 1308 (10th Cir.2007).

ANALYSIS

The City of Albuquerque and Berry contend that all of Salazar’s claims fail as a matter of law. They assert that, because the City of Albuquerque reinstated Salazar, his procedural due-process and liberty-interest claims are moot. They further assert that the Defendants are immune from his defamation and malieious-abuseof-process claims, and that Payne’s post-employment statement was not defamatory. They also contend that the Chavez’ statements and the City of Albuquerque’s appeal did not amount to a breach of Salazar’s employment contract, or the Defendants’ duty of good faith and fair dealing. Salazar opposes the City of Albuquerque’s and Berry’s Motion. The Court concludes that Salazar has not stated a procedural due-process claim. The Court also concludes that the NMTCA bars Salazar’s malicious-abuse-of-process claim and his defamation claim against the Defendants based on their statements made while they were City of Albuquerque employees. Because punitive damages are not an independent claim, the Court dismisses Salazar’s punitive damages Count without prejudice to him seeking punitive damages under any claim for which the law permits them. The Court further concludes that Salazar states a defamation claim against Payne based on his post-employment statement. Salazar has also stated a liberty-interest claim that reinstatement as a clean city operator does not moot. The Court therefore grants in part and denies in part the City of Albuquerque’s and Berry’s Motion.

I. SALAZAR FAILS TO STATE A PROCEDURAL DUE-PROCESS CLAIM.

The Court dismisses Salazar’s procedural due-process claim. Salazar contends that the City of Albuquerque’s decision to appeal the adverse rulings violated his procedural due-process protections of his property interest in continued employment. Salazar contends that “the City through its mayors and its administrative officers has done everything that could be done both within and outside of their lawful authority to obstruct, delay, and deny Paul Salazar’s return to his work as a bus driver.” Response at 6.

The City of Albuquerque and Berry assert that Salazar has failed to state a procedural due-process claim and that his reinstatement mooted his claim. The City of Albuquerque and Berry contend that Salazar was afforded adequate process. They first argue that Salazar has no claim against the Personnel Board, “because he prevailed at every step there.... The City’s Personnel Hearing Officer and Personnel Board sided with him on every occasion.” Memorandum at 2 (citations to the record omitted). Salazar’s Complaint and Mr. Livingston’s comments at the hearing make clear that Salazar does not complain about the Personnel Board’s process. At the hearing, Mr. Livingston asserted the Salazar’s procedural due-process claim accrued on June 17, 2008, when Chavez announced that he planned to appeal the Personnel Board’s ruling. See Tr. at 7:17-8:2 (Court, Livingston). Salazar’s argument is that the City of Albuquerque violated his procedural due-process rights when it appealed the Personnel Board’s decision. The City of Albuquerque asserts, however, that, like any other aggrieved party to an administrative proceeding, it has a statutory right to appeal to a state district court under NMSA 1978, § 39-3-1.1, and pursuant to the procedures set forth in rule 1-074 NMRA. Said another way, the City of Albuquerque contends it had a legal right to appeal the Personnel Board’s decisions. The City of Albuquerque and Berry maintain that Salazar’s theory, distilled to its essence, yields the proposition that a governmental entity commits a due-process violation by exercising its right to appeal rulings that are adverse to it. The City of Albuquerque and Berry contend that a consequence of Salazar’s contention would be that the only way to avoid a procedural due-process claim would be for the government entity to acquiesce at every turn. The City of Albuquerque represents that it is aware of no rule to support Salazar’s position and that ordinary logic refutes it. The City of Albuquerque and Berry maintain that the City of Albuquerque’s appeals of the Personnel Board’s decisions to state court did not, and could not, violate Salazar’s procedural due-process rights. The City of Albuquerque and Berry further argue that the Court should dismiss this claim as moot because they reinstated Salazar, who then abandoned his job.

The Court agrees that Salazar has not stated a procedural due-process claim, but it does not agree that Salazar’s procedural due-process claim is moot. There are two bases on which the Defendants contend that Salazar’s claims are moot. First, they argue that Salazar’s reinstatement moots his claim. Second, they contend that Salazar abandoned his claim when he failed to appear for work. A procedural due-process claim may be mooted if the plaintiff receives “precise remedy he has requested.” Veal v. Jones, 349 Fed.Appx. 270, 272 (10th Cir.2009) (“Veal has already received the precise remedy he has requested.... Thus, even assuming that Veal’s procedural due process rights were violated by the change in charge, his claim is now moot.”). See Taylor v. Franklin, 264 Fed.Appx. 764, 766 (10th Cir.2008) (holding that a prisoner’s due-process claim was rendered moot when a state appellate court granted him the relief he sought); Brown v. Wyo. Dep’t of Corrs. State Penitentiary, 234 Fed.Appx. 874, 877 n. 1 (10th Cir.2007) (“Alleged violations of due process in the first disciplinary hearing were mooted by Brown’s success in having his initial charges vacated.”). Where a plaintiff receives less than the complete relief he seeks, his claims are not moot. In Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir.2004), the Tenth Circuit held that, although statutory revision mooted a plaintiffs declaratory and injunctive claims, its claim for nominal damages was not moot, despite that the “Plaintiff coneede[d] that it suffered no compensable injury.” 371 F.3d at 1258. In his concurrence, the Honorable Robert H. Henry, United States Court of Appeals Judge, stated:

Judge McConnell concludes that Carey [v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978),] and Memphis [Community School Dist. v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986),] give rise to the argument that there can be no mootness in constitutional cases, and that it is difficult to imagine a case in which a plaintiff could not insulate the case from mootness by appending a claim for nominal damages. But this is what these cases (each authored by the distinguished and highly regarded Justice Powell) hold — with no dissent in either case. The Tenth Circuit does not stand alone in its reading of these cases and the policies behind them.

Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d at 1272 (citing Bernhardt v. County of L.A., 279 F.3d 862, 871 (9th Cir.2002) (“[W]e must conclude that [plaintiffs] claims for prospective relief are moot, although we hold that her possible entitlement to nominal damages creates a continuing live controversy.”); Doe v. Delie, 257 F.3d 309, 314 (3d Cir.2001) (holding that where claims for injunctive and declaratory relief were moot, and claim for compensatory damages was prohibited, “[t]he availability of damages or other monetary relief almost always avoids mootness”); Van Wie v. Pataki, 267 F.3d 109, 115 n. 4 (2d Cir.2001) (noting that to avoid potential for mootness, “for suits alleging constitutional violations under 42 U.S.C. § 1983, it is enough that the parties merely request nominal damages”) (emphasis added); Yniguez v. Arizona, 975 F.2d 646, 647 (9th Cir.1992) (per curiam) (“The possibility that [plaintiff] may seek nominal damages on appeal is sufficient to prevent mootness.”), vacated on other grounds, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir.1986) (although claims for declaratory and injunctive relief were moot, plaintiffs “claim for damages would not be moot since it is now well established that if he can prove that he was deprived of a constitutionally protected right, and if defendants are not able to establish a defense to that claim, [he] will be entitled to recover at least nominal damages.”); Wiggins v. Rushen, 760 F.2d 1009, 1011-12 (9th Cir.1985) (“Even if [plaintiff’s] transfer to [a different facility] prevented him from receiving injunctive relief, his claim for [nominal] damages survived.”); Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69, 72 n. 5 (4th Cir.1983) (indicating trial court’s suggestion that procedural due-process claims were moot was in error, noting “[t]he Supreme Court has made it plain that the deprivation of procedural due process creates an independent right to seek, at a minimum, nominal damages”); Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir. 1981) (although claims for declaratory and injunctive relief were moot, and dismissal of plaintiffs claim for actual damages was not clearly erroneous, under Carey v. Piphus, district court must “consider in this § 1983 action plaintiffs claims for nominal damages and attorney fees”)) (other citations omitted)'. Salazar seeks punitive damages. Additionally, at the hearing, the parties indicated that there was a dispute regarding how to calculate the back pay Salazar is due. Because it does not appear that Salazar received the “precise remedy he has requested,” Veal v. Jones, 349 Fed.Appx. at 272, the Court concludes that his claims are not moot.

Turning to the merits of Salazar’s procedural due-process Count, the Court concludes that Salazar has not stated a claim as a matter of law. The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural-due-process rights were violated: (i) “Did the individual possess a protected property interest to which due process protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of process?” Camuglia v. The City of Albuquerque, 448 F.3d at 1219 (quoting Clark v. City of Draper, 168 F.3d at 1189). The parties do not dispute that Salazar satisfies the first prong — whether he possesses a protected interest. As the Tenth Circuit has noted, the “standard for the existence of a property right in employment is whether the plaintiff has a legitimate expectation of continued employment.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls, v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Here, as a tenured employee of the City, [Salazar] clearly meets this requirement.” Garcia v. City of Albuquerque, 232 F.3d 760, 769 (10th Cir.2000) (citing Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (“[P]ublic employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process.”)).

Salazar fails on the second prong. Taking the allegations in the Complaint as true, Salazar has failed to allege inadequate process. The essence of Salazar’s contention is that the City of Albuquerque violated his due-process rights when it appealed the Personnel Board’s decision. At the hearing, Mr. Livingston asserted the Salazar’s procedural due-process claim accrued on June 17, 2008, when Chavez announced that he planned to appeal the Personnel Board’s ruling. See Tr. at 7:17-8:2 (Court, Livingston). See also Tr. at 7:10-15 (Court: “If we just stopped right there after the personnel board reinstated Mr. Salazar and ordered him to be paid back pay and benefits, would you agree with me at that point he doesn’t have a procedural due-process claim?” Mr. Livingston: “If the City actually reinstates him.”). Salazar does not, thus, allege that he was not “afforded an appropriate level of process.” Camuglia v. The City of Albuquerque, 448 F.3d at 1219. Rather, he contends that the Defendants violated his constitutional rights when they appealed the Personnel Board’s decision. Salazar’s argument is without a sound basis in the law. The process due a person whose protected property interest is impaired depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government’s interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. Salazar’s contention thus furthers none of the goals due-process protections seek to further. A citizen is entitled to process and is not necessarily guaranteed a win. The City of Albuquerque has a statutory right to appeal the Personnel Board’s decision. See NMSA 1978, § 39-3-1.1 (“Unless standing is further limited by a specific statute, a person aggrieved by a final decision may appeal the decision to district court by filing in district court a notice of appeal within thirty days of the date of filing of the final decision.”). The right to appeal the Personnel Board’s decision is part of the process; the statutory provision that parties may appeal the Personnel Board’s increases the protections afforded to the parties. There is no sound basis for Salazar to argue that the Constitution guarantees him a right to appeal but prohibits the City of Albuquerque from appealing. The Court, therefore, concludes that Salazar has not stated a procedural due-process claim.

II. SALAZAR HAS STATED A LIBERTY-INTEREST CLAIM IN COUNT II.

The City of Albuquerque and Berry also contend that Salazar’s reinstatement moots his liberty-interest claim. They argue that, when the City reinstated Salazar, “he was no longer either ‘terminated’ or ‘foreclosed from other employment opportunities.’ Reinstatement to a job with the same employer and at a $3.50 per hour pay raise demonstrates Plaintiff was not foreclosed from other employment opportunities.” Reply at 3. Salazar responds that the City of Albuquerque’s refusal to reinstate him as a bus driver, and its transferring him to a position where he would not be around children, does not clear his name or moot his claim.

To establish a constitutional violation of his liberty interest in his reputation, Salazar

must show how the government infringed upon this liberty interest. First, to be actionable, the statements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must be published.

Workman v. Jordan, 32 F.3d at 480-81. See Melton v. City of Okla., 928 F.2d at 926-27 (holding that elements are not disjunctive but must all be satisfied). “A person who establishes a liberty-interest deprivation is entitled to a name-clearing hearing.” Evers v. Regents of Univ. of Colo., 509 F.3d at 1308.

The parties do not dispute that the Defendants’ alleged statements publicly and repeatedly calling Salazar a “sex offender” and a “child molester,” Complaint ¶ 15, at 4, “impugn [his] good name, reputation, honor, or integrity.” Workman v. Jordan, 32 F.3d at 480-81. They also do not dispute that the allegations were published and are false. The City of Albuquerque and Berry contend, however, that the statements were not made in the course of Salazar’s termination and that his reinstatement defeats his ability to show that the statements foreclose other employment. The Court concludes that Salazar has stated a substantive due-process liberty-interest claim, and that his reinstatement in a position where he is not around children or the public does not moot his claim.

Because the City of Albuquerque refuses to reinstate Salazar as a bus driver, it has not mooted his liberty-interest claim. In some circumstances, reinstatement can defeat a liberty-interest claim. In McCarty v. City of Bartlesville, the Tenth Circuit held that a plaintiffs could not prevail on their liberty-interest claim because they were reinstated in the same position with back pay and benefits:

[T]he McCartys are unable to establish that an actual deprivation occurred. The McCartys were discharged but subsequently rehired with full backpay and benefits. We acknowledge that their rehire does not mean that they will be welcomed without reservation by their colleagues and superiors, but the loss of prospective job opportunities is too speculative to support a deprivation of a liberty interest claim under § 1983. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir.1989) (“[D]am-age to ‘prospective employment opportunities’ is too intangible to constitute a deprivation of a liberty or property interest.”); see also Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1559 (10th Cir.1993) (noting the same). The McCartys’ liberty interest claim necessarily fails.

Reinstatement to a different position, however, does not necessarily defeat a liberty-interest claim and does not moot a plaintiffs claim. The Tenth Circuit held in Watson v. University of Utah Medical Center that an employers’ statement that forecloses employment in a plaintiffs chosen field may satisfy Workman v. Jordan’s third element:

We believe plaintiff has set out a claim of a liberty deprivation — she has raised an issue of material fact whether “her dismissal resulted in the publication of information which was false and stigmatizing- — information which had the general effect of curtailing her future freedom of choice or action.” Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir.1984). Thus, she has made a showing that she was entitled to notice and a due process hearing to clear her name. See Roth, 408 U.S. at 573 n. 12, 92 S.Ct. 2701 ... (“The purpose of such notice and hearing is to provide the person an opportunity to clear [her] name.”).

Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80 (emphasis added). Like the plaintiff in Watson v. University of Utah Medical Center, Salazar’s reinstatement shows he may be able to obtain employment, but it is not employment in his chosen field of bus driving. While the City of Albuquerque reinstated Salazar as a motorcoach operator for the Transit Department, it immediately administratively transferred him to a position in the City of Albuquerque’s Solid Waste Management Department as a clean city operator. Because the City of Albuquerque did not reinstate Salazar as a bus driver, his reinstatement does not defeat his contention “that defendants’ actions foreclosed h[is] future employment opportunities in h[is] chosen field.” Watson v. Univ. of Utah Med. Ctr., 75 F.3d at 579-80.

Moreover, the City of Albuquerque and Berry contend that he was assigned to work as a garbage truck driver not to prevent him from being around children, but to keep him safe, because allowing him to drive a bus risks exposing him to individuals who may seek to harm him because of publicity surrounding his case. The Defendants’ assertion that publicity from this case, which includes the Defendants’ statements that are the basis of Salazar’s claim, make it dangerous for Salazar to drive a bus because of the public’s potential hostile reaction to him, supports allowing Salazar’s claims to go forward. The public’s lasting hostility towards Salazar indicates that the Defendants’ statements impugned Salazar’s “good name, reputation, honor, or integrity,” and supports Salazar’s contention that other the statements “foreclose other employment opportunities.” Workman v. Jordan, 32 F.3d at 480-81.

The City of Albuquerque’s and Berry’s contention that the alleged statements were not made in the course of Salazar’s termination is also unavailing. To determine if a statement was made “in the course of terminating the employee,” a court must consider the na