Citations
- 797 F. Supp. 2d 1199
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) the Defendants’ Motion for Summary Judgment as to Antonio Sanchez, filed January 31, 2011 (Doc. 49); (ii) the Defendants’ Motion for Summary Judgment as to Robert Valenzuela, filed January 31, 2011 (Doc. 50); (iii) the Defendants’ Motion for Summary Judgment as to Richard Trujillo, filed January 31, 2011 (Doc. 51); (iv) the Defendants’ Motion for Summary Judgment as to Albert Pino, filed January 31, 2011 (Doc. 52); (v) the Defendants’ Motion for Summary Judgment as to Tom Mascarenas, filed January 31, 2011 (Doc. 53); (vi) the Defendants’ Motion for Summary Judgment as to Joe Bustos, filed January 31, 2011 (Doc. 54); (vii) the Defendants’ Motion for Summary Judgment as to Richard Gonzales, filed January 31, 2011 (Doc. 55); and (viii) the Defendants’ Motion for Summary Judgment as to Edward Abreu, filed January 31, 2011 (Doc. 56). The Court held a hearing on March 9, 2011. The primary issues are: (i) whether the Court should enter summary judgment on the Plaintiffs’ procedural-due process claims, because the Plaintiffs were not entitled to pre- or post-termination hearings, or because, if the Plaintiffs were entitled to pre- or post-termination hearings, the law is not clearly established; (ii) whether the Court should enter summary judgment on the Plaintiffs’ breach-of-contract claims, because the language of the alleged contract is ambiguous, and because there is a genuine issue of fact whether the Defendants breached the contract; and (iii) whether the Court should enter summary judgment on the Plaintiffs’ declaratory judgment claims. The Court will grant in part and deny in part the Defendants’ motions. The Court will grant summary judgment on the Plaintiffs’ procedural due-process claims against Defendant Dorian Dodson and Defendant Sandra Perez on the grounds of qualified immunity, because there is no clearly established law requiring pre-termination or post-termination hearings in the context of a reduction in force (“RIF”). The Court will enter declaratory judgment in the Plaintiffs’ favor on the Plaintiffs’ request for declaratory judgment on the federal law issues regarding their entitlement to pre- and post-termination hearings. Having disposed of the Plaintiffs’ federal claims, the Court remands the Plaintiffs’ remaining state-law claims — their breach-of-contract claims and their request for declaratory relief on state law issues — to the Eighth Judicial District Court, Colfax County, State of New Mexico.
FACTUAL BACKGROUND
A decision was made to close the New Mexico Boys School (“the Boys School”) near Springer, New Mexico, and it closed. See Affidavit of Mary-Dale Wilson f/k/a Mary-Dale Bolson ¶ 5, at 2 (sworn to on January 13, 2011), filed January 31, 2011 (Doc. 49-l)(“On or about December 2005,1 along with the Governor and the Director of the Legislative Council Service, David Abbey, made the decision to close the NMBS.”); Motion as to Sanchez ¶ 1, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). The decision to close the Boys School was based upon an overabundance of beds available for youth detention across the State of New Mexico. See, e.g., Wilson Aff. ¶ 6, at 2; Motion as to Sanchez ¶2, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). Another reason the Boys School was closed is that it was located in an isolated rural area of the state, and it had become difficult to recruit and retain qualified behavioral and mental health professionals to treat the youth the courts committed to the long-term juvenile justice facility. See, e.g., Affidavit of Dorian Dodson ¶ 7, at 2 (sworn to January 24, 2011), filed January 31, 2011 (Doc. 49-2); Motion as to Sanchez ¶ 3, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). Today’s youth have higher behavioral health and/or mental needs than did youth in the past, which mandated an increased need for behavioral and mental health professionals. See, e.g., Dodson Aff. ¶ 7, at 2; Motion as to Sanchez ¶ 3, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). In addition, the decision to close the Boys School was based upon the terms of a settlement agreement in another case in which a CYFD entity was a named defendant. See Wilson Aff. ¶ 6, at 2; Motion as to Sanchez ¶ 4, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). The New Mexico Department of Corrections was to purchase and purchased the Boys School. See Wilson Aff. ¶ 7, at 2; Motion as to Sanchez ¶ 5, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact).
CYFD and the New Mexico State Personnel Office (“SPO”) held town hall meetings for each Boys School shift at a Chapel located on Boys School grounds to inform the Boys School’s employees of the closure. See Wilson Aff. ¶ 8, at 2; Affidavit of Sandra K. Perez ¶ 8, at 2 (sworn to January 27, 2011), filed January 31, 2011 (Doc. 49-3); Motion as to Sanchez ¶ 6, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). There were approximately 162 Boys School employees whose positions were being eliminated as a result of the closure and imminent RIF. See Perez Aff. ¶ 15, at 3; Motion as to Sanchez ¶ 7, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). CYFD and SOP engaged in a lengthy effort to assist the former Boys School employees in identifying and applying for alternative employment with the State of New Mexico. See, e.g., Perez Aff. ¶¶ 9-10, at 2-3; Motion as to Sanchez ¶ 8, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). CYFD and SOP held job fairs. See, e.g., Perez Aff. ¶ 9, at 2-3; Motion as to Sanchez ¶ 9, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). The Corrections Department hired some former Boys School employees, provided they passed a lie detector test and met the Correction Department’s physical requirements. See, e.g., Perez Aff. ¶ 9, at 2-3; Motion as to Sanchez ¶ 10, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). Some former Boys School employees applied for and obtained positions at a facility in the Springer area know as Area One. See, e.g. Perez Aff. ¶ 9, at 3; Motion as to Sanchez ¶ 11, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). Some former Boys School employees were required to take a reduction in pay at their new jobs, and some were required to relocate; some employees retired. See, e.g., Perez Aff. ¶ 9, at 2-3; Motion as to Sanchez ¶ 12, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). Other state agencies that hired former Boys School employees were Miner’s Colfax Medical Center, the New Mexico Department of Transportation, and the New Mexico Department of Health. See, e.g., Dorian Aff. ¶ 10, at 3; Motion as to Sanchez ¶ 13, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact).
Ultimately Defendant Sandra Perez, the State Personnel Director, drafted a written RIF plan to be presented to the State Personnel Board for its review, its acceptance, modification, or rejection. See, e.g., Perez Aff. ¶ 11, at 3; Motion as to Sanchez ¶ 14, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). The plan, if accepted, would affect 162 classified positions and eight employees who did not have a job. See, e.g., Perez Aff. ¶ 11, at 3; Motion as to Sanchez ¶ 14, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). The RIF plan was to be presented to the State Personnel Board at its December 18, 2006 meeting. See, e.g., Perez Aff. ¶ 14, at 3; Motion as to Sanchez ¶ 15, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). The agenda that was initially posted on December 7, 2006 failed to list the RIF as an item to be considered. See, e.g., Perez Aff. ¶ 12, at 3; Motion as to Sanchez ¶ 16, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). The agenda was revised on December 15, 2006 to include the RIF. See, e.g., Perez Aff. ¶ 13, at 3; Motion as to Sanchez ¶ 17, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). At its December 18, 2006 meeting, the State Personnel Board adopted the RIF by- unanimous voice vote. See, e.g., Perez Aff. ¶ 14, at 3; Motion as to Sanchez ¶ 18, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact). The eight employees were given letters notifying them that their positions no longer existed and informing them of their rights, which included six months of re-employment rights under the State Personnel Board Rules and the Personnel Act, NMSA 1978, §§ 10-9-1 to -25. See, e.g., Perez Aff. ¶¶ 15-16, at 3; Motion as to Sanchez ¶ 19, at 6 (setting forth this fact); Response at 4-8 (not controverting this fact).
1. Plaintiff Antonio Sanchez.
Sanchez is a Plaintiff in this case. See, e.g., Complaint for Violation of Civil Rights with Alternative Petition for Declaratory and Injunctive Relief at 1, filed October 28, 2008 (Doc. 1-5-2)(“Complaint”); Motion as to Sanchez ¶20, at 6 (setting forth this fact); Response at 7 (not controverting this fact). His position at the NMBS was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Deposition of Antonio Sanchez at 50:22-25 (take September 8, 2010), filed January 31, 2011 (Doc. 49-4); Motion as to Sanchez ¶ 21, at 6 (setting forth this fact); Response at 7 (not controverting this fact). Sanchez was offered a position at Miner’s Colfax Medical Center, accepted the position, and resigned from CYFD. See, e.g., Sanchez Depo. at 62:20-63:17; Motion as to Sanchez ¶22, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Sanchez then rejected that job offer because it did not provide him the same salary that he was receiving at the Boys School. See, e.g., Sanchez Depo. at 63:18-64:8; Motion as to Sanchez ¶ 23, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Sanchez was also offered a job with the Department of Health in Las Vegas, New Mexico, but rejected it because it was too far away and would be too expensive to go to work. See, e.g., Sanchez Depo. at 65:17-25; Motion as to Sanchez ¶ 24, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Sanchez does not have any evidence that the fact that his position at the Boys School was subject to the RIF was as a result of retaliation or that the RIF was a pretext for some other reason. See Sanchez Depo. at 3 8:20-22, 61:20-62:1 (“Q. Do you have any evidence that they were trying to retaliate against you? A. No, I couldn’t tell you that.”). Sanchez does not believe that the Plaintiffs were singled out or targeted for the RIF. See Sanchez Depo. at 59:25-60:9 (“Q. Did you ever get the impression or have any facts that would lead you to believe that the plaintiffs in this case were being singled out? A. No, sir. Q. So do you think that anyone at the State of New Mexico ... was targeting you? A. No.”). Sanchez was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Sanchez ¶ 27, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Sanchez was not separated from his employment based on work performance. See Perez Aff. ¶ 18, at 4.
2. Plaintiff Robert Valenzuela.
Valenzuela is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgment as to Robert Valenzuela ¶ 20, at 6, filed January 31, 2011 (Doc. 50)(“Motion as to Valenzuela”)(setting forth this fact); Response at 7 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Valenzuela ¶ 21, at 6 (setting forth this fact); Response at 7 (not controverting this fact). Valenzuela states that he did not apply for any jobs because he had a job with the Boys School. See, e.g., Deposition of Robert Edward Valenzuela at 37:14-24, 38:5-16, 40:21-41:2 (taken September 10, 2010), filed January 31, 2011 (Doc. 50-4); Motion as to Valenzuela ¶ 22, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Valenzuela never had the sense during the process that anyone was retaliating against him. See, e.g., Valenzuela Depo. at 56:9-12; Motion as to Valenzuela ¶ 23, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Valenzuela has no reason to believe that Defendant Dorian Dodson, Perez, or anyone else at the state was trying to terminate or target him. See, e.g., Valenzuela Depo. at 56:13-23; Motion as to Valenzuela ¶24, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Valenzuela was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Valenzuela ¶ 24, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Valenzuela was not separated from his employment based on work performance, but there is evidence that his separation was because of his lack of a high school diploma. See Perez Aff. 18, at 4; Memorandum from Marcy Ojinaga, SPO HR Manager to State Personnel Board (dated December 14, 2006), filed February 22, 2011 (Doc. 58-1).
3. Plaintiff Richard Trujillo.
Trujillo is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgment as to Richard Trujillo ¶ 20, at 6, filed January 31, 2011 (Doc. 51)(“Motion as to Trujillo”)(setting forth this fact), Response at 7 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Trujillo ¶ 21, at 6 (setting forth this fact); Response at 7 (not controverting this fact). At the time of the closure, he had not applied for other jobs. See, e.g., Deposition of Richard Trujillo at 25:13-15 (taken September 14, 2010), filed January 31, 2011 (Doc. 51-4); Motion as to Trujillo ¶ 22, at 6 (setting forth this fact); Response at 7 (not controverting this fact). Trujillo did not think there would be a job for him once the Boys School closed. See, e.g., Trujillo Depo. at 25:16-20; Motion as to Trujillo ¶23, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Trujillo does not believe that either Perez or Dodson had any animosity towards him or retaliated against him. See, e.g., Trujillo Depo. at 28:3-29:6; Motion as to Trujillo ¶ 24, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Trujillo was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Trujillo ¶ 25, at 7 (setting forth this fact); Response at 7 (not controverting this fact). Trujillo was not separated from his employment based on work performance. See Perez Aff. 18, at 4.
4. Plaintiff Albert Pino.
Pino is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgment as to Albert Pino, filed January 31, 2011 (Doc. 52)(“Motion as to Pino”)(setting forth this fact); Response at 6 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Pino ¶ 21, at 6 (setting forth this fact); Response at 6 (not controverting this fact). There is some evidence that Pino was retaliated against, because he was separated from his employment after he returned to work following the Eighth Judicial District Court’s conclusion that his discharge in 2003 was arbitrary and capricious, and contrary to law. See Deposition of Albert Lee Pino at 65:11-17 (taken September 10, 2010), filed January 31, 2011 (Doe. 52-4). Pino was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Pino ¶ 23, at 7 (setting forth this fact); Response at 6 (not controverting this fact). Pino was not separated from his employment based on work performance, but there is evidence that he was the target of retaliation in his separation. See Perez Aff. 18, at 4; Deci-
sion and Order at 1-2; Meeting Minutes at 1.
5. Plaintiff Tom Mascarenas.
Mascarenas is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgement as to Tom Mascarenas, filed January 31, 2011 (Doc. 53)(setting forth this fact)(“Motion as to Mascarenas”); Response at 5 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Mascarenas ¶21, at 6 (setting forth this fact); Response at 5 (not controverting this fact). Mascarenas was offered and accepted a position at the Department of Health in Las Vegas. See Deposition of Tom Mascarenas at 14:6-18 (taken September 10, 2010), filed January 31, 2011 (Doc. 53-4). Mascarenas resigned from that job after eight months. See Mascarenas Depo. at 40:14-19. Mascarenas believes that the decision to close down the Boys School was based on economic considerations. See, e.g., Mascarenas Depo. at 28:1-17, 50:20-51:15; Motion as to Mascarenas ¶ 24, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Mascarenas does not feel that the fact that his position at the Boys School was subject to the RIF was as a result of retaliation for speaking out against its closure. See, e.g., Mascarenas Depo. at 45:11-46:1; Motion as to Mascarenas ¶25, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Mascarenas was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Mascarenas ¶ 26, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Mascarenas was separated from his employment because of disciplinary reasons. See Mascarenas Memorandum at 1; Dodson Electronic Mail Transmission at 1; Auten Electronic Mail Transmission at 1.
6. Plaintiff Joe Bustos.
Bustos is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgement as to Joe Bustos ¶ 20, at 6, filed January 31, 2011 (Doc. 54)(“Motion as to Bustos”)(setting forth this fact); Response at 5 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Bustos ¶ 21, at 6 (setting forth this fact); Response at 5 (not controverting this fact). Bustos applied to be a detention officer at the Colfax County, New Mexico Jail but was not selected. See, e.g., Deposition of Joe A. Bustos at 60:4-63:3 (taken September 14, 2010), filed January 31, 2011 (Doc. 54-4); Motion as to Bustos ¶ 22, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Bustos does not believe that the administration had any ill will towards the Plaintiffs and he has no evidence that they were trying to drive him out of his job. See, e.g., Bustos Depo. at 42:16-23; Motion as to Bustos ¶ 23, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Bustos states that he had no idea that the Boys School was closing and that he had only a one-hour notice. See, e.g., Bustos Depo. at 28:7-16; Motion as to Bustos ¶ 24, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Bustos does not feel that his separation from employment with the State was a result of retaliation for speaking out and does not have any evidence that anyone was retaliating against him for anything. See, e.g., Bustos Depo. at 44:4-12; Motion as to Bustos ¶ 25, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Bustos was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Bustos ¶ 26, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Bustos was not separated from his employment based on work performance. See Perez Aff. 18, at 4.
7. Plaintiff Richard Gonzales.
Gonzales is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for SummaryJudgement as to Richard Gonzales ¶ 20, at 6, filed January 31, 2011 (Doc. 55)(setting forth this fact)(“Motion as to Gonzales”); Response at 5 (not controverting this fact). His position at the Boys School was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Gonzales ¶21, at 6 (setting forth this fact); Response at 5 (not controverting this fact). Gonzales testified that the Defendants offered one job at a health center in Las Vegas to the people at the Boys School. See Gonzales Depo. at 47:10-15. Gonzales did not apply for that job, as it was too far. See, e.g., Gonzales Depo. at 47:13-15; Motion as to Gonzales ¶23, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Gonzales was told at a meeting with Perez and Dodson that, if he did not find another job, he would be laid off. See, e.g., Gonzales Depo. at 48:4-7; Motion as to Gonzales ¶ 24, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Gonzales does not have any evidence that the fact that his being laid off was for any other reason than the closing of the Boys School. See, e.g., Gonzales Depo. at 64:13-65:10; Motion as to Gonzales ¶ 25, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Gonzales was separated from his employment, as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Gonzales ¶ 26, at 7 (setting forth this fact); Response at 5 (not controverting this fact). Gonzales was not separated from his employment based on work performance. See Perez Aff. 18, at 4.
8. Plaintiff Ed Abreu.
Abreu is a Plaintiff in this case. See, e.g., Complaint at 1; Motion for Summary Judgement as to Edward Abreu ¶ 20, at 8, filed January 31, 2011 (Doe. 56)(“Motion as to Abreu”)(setting forth this fact); Response at 4 (not controverting this fact). Abreu’s position at the NMBS was subject to the RIF. See, e.g., Complaint ¶ 22, at 6; Motion as to Abreu ¶ 21, at 8 (setting forth this fact); Response at 4 (not controverting this fact). Abreu interviewed for and was offered a position as Superintendent of Area 1, but declined the offer as the pay was lower than his Boys School position. See, e.g., Deposition of Edward L. Abreu, Jr. at 145:14-146:15, 188:10-17 (taken September 7, 2010), filed January 31, 2011 (Doc. 56^1); Motion as to Abreu ¶ 22, at 8 (setting forth this fact); Response at 4 (not controverting this fact). Abreu does not believe the Governor, Perez, or Dodson had any animosity towards him or the other Plaintiffs. See Abreu Depo. at 245:7-22. Abreu believes that Perez’ and Dodson’s actions were something they had to do. See, e.g., Abreu Depo. at 245:7-16; Motion as to Abreu ¶ 24, at 9 (setting forth this fact); Response at 4 (not controverting this fact). Abreu does not believe the closure of the Boys School was done to get rid of him or the other Plaintiffs. See, e.g., Abreu Depo. at 255:17-256:2; Motion as to Abreu ¶ 25, at 9 (setting forth this fact); Response at 4 (not controverting this fact). Abreu was separated from his employment as his position no longer existed pursuant to 1.7.10.9 NMAC. See, e.g., Perez Aff. ¶ 17, at 4; Motion as to Abreu ¶ 26, at 9 (setting forth this fact); Response at 4 (not controverting this fact). Abreu was not separated from his employment based on work performance. See Perez Aff. 18, at 4. Abreu’s expectation was that he would remain a state employee and be “assigned somewhere,” Abreu Depo. at 183:25-184:2; he assumed “they were going to find positions for us with the Department of Corrections,” Abreu Depo. at 152:21-22. See Motion as to Abreu ¶ 28, at 9 (setting forth this fact); Response at 4 (not controverting this fact). Abreu had interviewed for his prior positions in his twenty-five years with the State. See, e.g., Abreu Depo. at 187:15-22; Motion as to Abreu ¶ 29, at 9 (setting forth this fact); Response at 4 (not controverting this fact). Abreu applied for a position at Area 1, which he was offered and declined. See, e.g., Abreu Depo. at 166:17-167:1; Motion as to Abreu ¶ 30, at 9 (setting forth this fact); Response at 4 (not controverting this fact). In August 2006, Abreu knew that the Boys School was closing and was going to transition into to a Corrections Department facility. See, e.g., Abreu Depo. at 151:24-152:5; Motion as to Abreu ¶ 31, at 9 (setting forth this fact); Response at 4 (not controverting this fact). The Corrections Department informed Abreu that it would be taking over the house in which he lived. See, e.g., Abreu Depo. at 148:7-12; Motion as to Abreu ¶ 32, at 10 (setting forth this fact); Response at 4 (not controverting this fact). Abreu believed it was reasonable to assume that, as a state employee, he would get another job with the State, with comparable pay and position. See Abreu. Depo. at 201:14-25.
PROCEDURAL HISTORY
On September 19, 2008, the Plaintiffs filed their Complaint for Violation of Civil Rights with Alternative Petition for Declaratory and Injunctive Relief in the Eighth Judicial District Court in the County of Colfax in the State of New Mexico. See Doc. 1-2. In Count I, the Plaintiffs allege breach of employment contract against CYFD and SPO; in Count II, the Plaintiffs allege deprivation of Property and Liberty Rights Without Due Process of Law Contrary to Sections 1983 and 1985 against Dodson and Perez; and in Count III the Plaintiffs set forth an alternative petition for declaratory or injunctive relief. See Complaint, Counts I, II, and III. On October 28, 2008, the Defendants filed a Petition for Removal of Cause to Federal Court, stating that the Court had jurisdiction over the action pursuant to 28 U.S.C. § 1331. See Doc. 1.
On January 31, 2011, the Defendants filed motions for summary judgment as to each Plaintiff. See Docs. 49, 50, 51, 52, 53, 54, 55, 56. Although the motions for summary judgment contain facts specific to each Plaintiff, the arguments contained in the motions are virtually identical. The Defendants argue that the Boys School was closed and all the positions were eliminated, and that none of the employee were terminated for cause. They argue that there is no dispute that the RIF was a result of the closure and sale of the Boys School. They argue that, although the Plaintiffs assert that they should have been allowed pre-termination hearings and public hearings, the Plaintiffs were not terminated — rather, their positions were eliminated and, as such, the due process clause does not require pre-termination hearings. They argue that there is no law in New Mexico finding that the state has an obligation upon performing a RIF to find or create jobs for all displaced employees. They further argue that, even if the Court adopts the Plaintiffs’ position, the Defendants would still be entitled to qualified immunity, because there is no clearly established law in New Mexico requiring pre-termination hearings in the context of a legitimate RIF.
On February 22, 2011, the Plaintiffs filed the Plaintiffs’ Consolidated Response in Opposition to Defendants’ Motion for Summary Judgment. See Doc. 58. They do not dispute that a good-faith decision was made to close the Boys School or that the Defendants made a substantial effort to find alternative employment for the large number of Boys School employees. They argue, however, that the RIF was executed in a manner contrary to their reasonable expectations of continued employment and in a manner contrary to law, that they were not afforded timely notice of their anticipated loss of employment; and that they were not allowed a constitutionally adequate opportunity to respond.
On March 4, 2011, the Defendants filed replies to the Plaintiffs’ Response. See Defendants’ Reply to Plaintiff Antonio Sanchez’ Response to Motion for Summary Judgement, filed March 4, 2011 (Doc. 65); Defendants’ Reply to Plaintiff Robert Valenzuela’s Response to Motion for Summary Judgement, filed March 4, 2011 (Doe. 63); Defendants’ Reply to Plaintiff Richard Trujillo’s Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 66); Defendants’ Reply to Plaintiff Albert Pino’s Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 62); Defendants’ Reply to Plaintiff Tom Mascarenas’ Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 67); Defendants’ Reply to Plaintiff Joe Bustos’ Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 68); Defendants’ Reply to Plaintiff Richard Gonzales’ Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 64); Defendants’ Reply to Plaintiff Ed Abreu’s Response to Motion for Summary Judgment, filed March 4, 2011 (Doc. 61). These replies are largely identical. In their replies, the Defendants argue that the RIF was properly conducted, pursuant to the rules. They also argue that the Plaintiffs’ employment rights under a RIF have been protected and that the Plaintiffs have no seniority rights. The Defendants also argue that there is no contract law creating a reasonable expectation of continuing employment for employees subject to a RIF and that there is no due-process right to individualized hearings in a nonpretextual RIF. They further argue that there is no need for the Court to reach the issue of declaratory judgment.
At the hearing, the Defendants argued that, “although the [Plaintiffs] may [have] a[ ] property interest [in continued employment,] there aren’t the same procedural safeguards necessary in the context of a RIF.” Transcript of Hearing at 6:23-25 (taken March 9, 2011) (Dwyer) (“Tr.”). The Plaintiffs argued that the Tenth Circuit has never adopted a reorganization exception, although they have had the opportunity to do so. They also argue, however, that their case survives even if the Court believes that the reorganization exception applies, because there is evidence indicating that the RIF was not a neutral plan and that it was a performance-based plan. They argue that they are entitled to a hearing to determine what criteria was used, whether that criteria impacted their selection, and whether the criteria created stigma.
LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”)(internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 417 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation marks omitted).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To survive summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
RELEVANT NEW MEXICO LAW REGARDING EMPLOYMENT CONTRACTS
“The general rule in New Mexico is that an employment contract is for an indefinite period and is terminable at the ■will of either party unless the contract is supported by consideration beyond the performance of duties and payment of wages or there is an express contractual provision stating otherwise.” Hartbarger v. Frank Paxton Co., 115 N.M. 665, 668, 857 P.2d 776, 779 (1993) (citation omitted). Either party can terminate an at-will employment relationship “at any time for any reason or no reason, without liability.” Hartbarger v. Frank Paxton Co., 115 N.M. at 668, 857 P.2d at 779 (citation omitted). New Mexico courts have recognized “an exception to at-will employment for an implied contract based on the words and conduct of the parties, including provisions in a personnel manual or a handbook.” Newberry v. Allied Stores, Inc., 108 N.M. 424, 426, 773 P.2d 1231, 1233 (1989) (internal citations omitted). A personnel manual or handbook “will not always change the at-will employment relationship if the manual or handbook is not sufficiently specific.” Newberry v. Allied Stores, Inc., 108 N.M. at 426, 773 P.2d at 1233 (citation omitted). “Under New Mexico law, a personnel manual gives rise to an implied contract if it controlled the employer-employee relationship and an employee could reasonably expect his employer to conform to the procedures it outlined.” Newberry v. Allied Stores, Inc., 108 N.M. at 426, 773 P.2d at 1233 (citation omitted).
The Supreme Court of New Mexico has held that an implied contract of employment between a government employee and government employer may arise from writings that are sufficiently concrete in their representations — such as an employee handbook or a personnel policy. See Garcia v. Middle Rio Grande Conservancy Dist., 121 N.M. 728, 731-32, 918 P.2d 7, 11-12 (1996). In Barreras v. State of New Mexico Corrections Department, 133 N.M. 313, 62 P.3d 770 (Ct.App.2002), the Court of Appeals of New Mexico recognized that the State Personnel Act, along with its attendant rules and regulations, have “attributes of an employ[ment] contract, because they control the employer-employee relationship and give rise to reasonable employee expectations.” Barreras v. State of N.M. Corrs. Dep’t, 133 N.M. at 315, 62 P.3d at 772 (internal quotation marks and citation omitted). The Court of Appeals stated that “the State Personnel Act and [its] attendant rules, regulations, and policies” create “enforceable rights in state employees.” Barreras v. State of N.M. Corrs. Dep’t, 133 N.M. at 315, 62 P.3d at 772. See Eoff v. N.M. Corrs. Dep’t, Nos. CIV 10-0598 JB/RHS, CIV 10-0599 JB/ DJS, CIV 10-0600 JB/WDS, 2010 WL 5477679, at *5 (D.N.M. Dec. 20, 2010) (Browning, J.)(stating that, in Barreras v. State of New Mexico Corrections Department, the Court of Appeals recognized that the State Personnel Act, along with its attendant rules and regulations, have “attributes of an employ[ment] contract, because they control the employer-employee relationship and give rise to reasonable employee expectations”).
RELEVANT LAW REGARDING PROCEDURAL DUE PROCESS
The Fourteenth Amendment states: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. The Due-Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). “Under either form of protection, however, a person must have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.).
“The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “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. “Such an interest arises not from the Due Process Clause of the Constitution itself, but is ‘created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.’ ” Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 (“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”); Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (“Rather, property interests, which are the subject of the present litigation, ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701)); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”). “In the context of a public employee ... the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expectation’ or ‘an abstract need or desire’ for it.” Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701; Koopman v. Water Dist. No. 1 of Johnson County, Kan., 972 F.2d 1160, 1164 (10th Cir.1992)). “A legitimate claim of entitlement may be grounded in various sources of state law, including ‘state statutes, local ordinances, established rules, or mutually explicit understandings.’ ” Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (quoting Dickeson v. Quarberg, 844 F.2d 1435, 1437 (10th Cir.1988); citing Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991)). “If a plaintiff can prove he has a property interest in his employment, a state cannot deprive him of that interest without due process.” Dickeson v. Quarberg, 844 F.2d at 1438.
“Whether appellant has a sufficient property interest in his employment is a matter of state law.” Calhoun v. Gaines, 982 F.2d 1470, 1474 (10th Cir. 1992) (citing Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Archer v. Sanchez, 933 F.2d 1526, 1529 (10th Cir.1991)). “[A] property interest is determined by whether the terms of employment created by contract, federal statute, city charter or an employee manual create a sufficient expectancy of continued employment to constitute a property interest which must be afforded constitutionally guaranteed due process.” Graham v. City of Okla. City, Okla., 859 F.2d 142, 146 (10th Cir.1988) (citation omitted) (alternation in original). “Taken alone, the personnel policy or employee manual might create a property interest.” Graham v. City of Okla. City, Okla., 859 F.2d at 146.
“[0]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The Supreme Court has stated:
We have described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment.
[T]he pretermination “hearing,” though necessary, need not be elaborate. We have pointed out that “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” In general, “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (internal citations and footnote omitted).
ANALYSIS
The Court will grant summary judgment on the Plaintiffs’ procedural due-process claims against Dodson and Perez on the grounds of qualified immunity, because there is no clearly established law requiring pre-termination or post-termination hearings in the context of a RIF. The Court will enter declaratory judgment in the Plaintiffs’ favor on the Plaintiffs’ request for declaratory judgment on the federal law issues regarding their entitlement to pre- and post-termination hearings. Having disposed of the Plaintiffs’ federal claims, the Court remands the Plaintiffs’ remaining state-law claims — their breach-of-contract claims and their request for declaratory relief on state law issues — to the Eighth Judicial District Court, Colfax County, State of New Mexico.
I. THE COURT WILL GRANT SUMMARY JUDGMENT ON THE PLAINTIFFS’ PROCEDURAL DUE-PROCESS CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ON THE GROUNDS OF QUALIFIED IMMUNITY.
The Defendants argue that there is no reasonable expectation of continuing employment for RIFed employees. They argue that the Plaintiffs do not establish an actual property interest. They argue that the Plaintiffs have not cited to any section of the personnel rules which would give a RIFed employee a legitimate expectation of continued employment. They also argue that case law has shown that, when there is a bona fide RIF, pre-termination hearings are not required by the due-process clause. They argue that the Plaintiffs contend that the state has an obligation upon performing a RIF to find or even create jobs for all displaced employees, but there is “no law in New Mexico requiring such steps and this Court should not create a new due process right where it would serve no useful purpose.” Response at 11. The Defendants argue that it is well established law to treat a legitimate RIF differently from a for-cause termination. The Defendants argue that, even if the Court takes the Plaintiffs’ position as true, the individual Defendants would be entitled to qualified immunity, because there is no clearly established law in New Mexico requiring pre-termination hearings in the context of a legitimate RIF.
The Plaintiffs argue that the right of a tenured public employee to pre-termination notice and a reasonable opportunity to respond is well recognized at law. They argue that this right flows from the existence of property rights in tenured public employment and the fact that involuntary termination means loss of that property right. They argue that this right extends to all involuntary terminations and that the Tenth Circuit has extended the right to respond to employees separated by an alleged RIF where the bona fide nature of the RIF is contested. They argue that some circuits have recognized a reorganization exception to this rule, but the Tenth Circuit has not done so. They argue that, even if the reorganization exception applied, the exception is predicated on a neutral RIF devoid of performance-based criteria in the selection of employees for layoff, and that the record is “replete with evidence of performance and personal based criteria affecting the eventual selections of Plaintiffs for layoff.” Response at 15. The Plaintiffs also argue that their identification as unemployable has damaged their reputations and affected their ability to find employment, and that they are thus entitled to a name-clearing hearing. The Plaintiffs argue that the individual Defendants are not entitled to qualified immunity, because they have shown a constitutional violation if their allegations are true and because the Supreme Court has recognized the right of a tenured public employee to a hearing to respond to termination for decades. They also argue that the Tenth Circuit specifically established due-process rights of the tenured public employee terminated for reasons aside from just cause in March 2005 in Copelin-Brown v. New Mexico State Personnel Office, 399 F.3d 1248 (10th Cir. 2005).
A. THE PARTIES AGREE THAT THE RIF WAS A BONA-FIDE RIF AND NOT A SUBTERFUGE DESIGNED TO ELIMINATE THE PLAINTIFFS.
The RIF was a bona-fide RIF; it was not a subterfuge designed to eliminate the Plaintiffs. The New Oxford American Dictionary defines “bona fide” as “genuine; real” and lists the origin of “bona fide” as Latin, “literally ‘with good faith.’ ” New Oxford American Dictionary 194 (3d ed., Oxford University Press 2010). In West v. Grand County, 967 F.2d at 362 (10th Cir.1992), the Tenth Circuit stated that it need not speculate whether a pretermination hearing would be required in circumstances involving a termination as the result of a bona fide RIF, because, in the case, before it, the RIF was directed at one person who alleged that the RIF “was actually just a subterfuge designed to terminate her without establishing the required cause.” 967 F.2d at 367. This definition is in line with the New Oxford American Dictionary’s definition of bona fide as genuine, or, literally as “with good faith.”
The parties agree that the RIF was a bona fide RIF. The Defendants assert that the RIF was “bona fide.” Motion as to Sanchez at 9. The Plaintiffs concede that the RIF was a bona-fide RIF. See Response at 8, 9. The Plaintiffs state:
Plaintiffs do not dispute that a good faith decision was made to close the New Mexico Boys School and convert its use to an adult detention facility. Nor do Plaintiffs dispute that Defendants CYFD and SPO made a substantial effort to find alternative employment for the large number of NMBS employees affected by the decision to close NMBS.
Response at 8. The Plaintiffs state that they do “not contest the authority of Defendant CYFD to close NMBS, or its authority to conduct a [RIF].” Response at 9. The undisputed facts establish that a decision was made to close the Boys School, and it closed. See Wilson Aff. ¶ 5, at 2 (“On or about December 2005,1 along with the Governor and the Director of the Legislative Council Service, David Abbey, made the decision to close the NMBS.”); Motion as to Sanchez ¶ 1, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). The decision to close the Boys School was based upon an overabundance of beds available for youth detention across the State of New Mexico. See, e.g., Wilson Aff. ¶ 6, at 2; Motion as to Sanchez ¶ 2, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). Another reason the Boys School was closed is that it was located in an isolated rural area of the state, and it had become difficult to recruit and retain qualified behavioral and mental health professionals to treat the youth the courts committed to the long-term juvenile justice facility. See, e.g., Affidavit of Dorian Dodson ¶ 7, at 2 (sworn to January 24, 2011), filed January 31, 2011 (Doc. 49-2); Motion as to Sanchez ¶ 3, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). Today’s youth have higher behavioral health and/or mental needs than did youth in the past, which mandates an increased need for behavioral and mental health professionals. See, e.g., Dodson Aff. ¶ 7, at 2; Motion as to Sanchez ¶ 3, at 4 (setting forth this fact); Response at 4-8 (not controverting this fact). In addition, the decision to close the Boys School was based upon the terms of a settlement agreement in another case in which a CYFD entity was a named defendant. See Wilson Aff. ¶ 6, at 2; Motion as to Sanchez ¶ 4, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). The Department of Corrections was to purchase and purchased the Boys School. See Wilson Aff. ¶ 7, at 2; Motion as to Sanchez ¶ 5, at 5 (setting forth this fact); Response at 4-8 (not controverting this fact). The parties thus agree that the RIF was a bona fide RIF. The Plaintiffs’ argument centers on the assertion that the manner in which the selection criteria for new jobs in the bona fide RIF were applied violated their constitutional rights. See Response at 11 (arguing that their “leftover status was not simply happenstance”). The Plaintiffs are not .arguing that the RIF was not a bona fide RIF; instead, they are arguing that they were separated from their employment without a hearing.
B. THE PLAINTIFFS HAD PROTECTED PROPERTY INTERESTS THAT SURVIVED THE RIF.
The Defendants argue that the Plaintiffs do not have a property interest. “Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. See Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (“Rather, property interests, which are the subject of the present litigation, ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701)); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”). “In the context of a public employee ... the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expectation’ or ‘an abstract need or desire’ for it.” Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 and Koopman v. Water Dist. No. 1 of Johnson County, Kan., 972 F.2d 1160, 1164 (10th Cir.1992)). “A legitimate claim of entitlement may be grounded in various sources of state law, including ‘state statutes, local ordinances, established rules, or mutually explicit understandings.’ ” Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (quoting Dickeson v. Quarberg, 844 F.2d at 1437; citing Carnes v. Parker, 922 F.2d at 1509). “If a plaintiff can prove he has a property interest in his employment, a state cannot deprive him of that interest without due process.” Dickeson v. Quarberg, 844 F.2d at 1438.
“Whether appellant has a sufficient property interest in his employment is a matter of state law.” Calhoun v. Gaines, 982 F.2d at 1474 (citing Bishop v. Wood, 426 U.S. at 344, 96 S.Ct. 2074; Archer v. Sanchez, 933 F.2d at 1529). “[A] property interest is determined by whether the terms of employment created by contract, federal statute, city charter or an employee manual create a sufficient expectancy of continued employment to constitute a property interest which must be afforded constitutionally guaranteed due process.” Graham v. City of Okla. City, Okla., 859 F.2d at 146 (citation omitted)(alternation in original). “Taken alone, the personnel policy or employee manual might create a property interest.” Graham v. City of Okla. City, Okla., 859 F.2d at 146.
The Tenth Circuit stated in Copelin-Brown v. New Mexico State Personnel Office:
Property interests are not created by the Constitution, but rather by independent sources such as state law. “[W]hen a person’s employment can be terminated only for specified reasons, his or her expectation of continued employment is sufficient to invoke the protections of the Fourteenth Amendment.” West v. Grand County, 967 F.2d 362, 366 (10th Cir.1992). New Mexico law clearly states that employees that have completed a probationary period of one year may only be terminated for just cause. N.M. Stat. Ann. § 10-9-18(F); Barreras v. State of N.M. Corrs. Dept., 133 N.M. 313, 62 P.3d 770, 775 (2002); N.M. Admin. Code tit. 1, § 7.11.10 (only non-disabled employees).
These restrictions on the government’s ability to terminate are sufficient to create a property interest in Ms. Copelin-Brown.
Some courts, including the Tenth Circuit, have considered whether a constitutionally protected property interest in employment survives a RIF. See Theis v. Denver Bd. of Water Comm’rs, 149 F.3d 1191, at *2 (10th Cir.1998) (Table)(recognizing that several courts have held that a property interest in continued employment may not survive a bona fide RIF, but not deciding whether it would recognize a reorganization exception to procedural due-process requirements in cases of bona fide RIFs, because “even if Theis’ assumed property interest in his employment survived elimination of his position, he was granted all the pre-termination process that was due.”); Wash. Teachers’ Union Local No. 6, Am. Fed’n of Teachers, AFL-CIO v. Bd. of Educ. of the Dist. of Columbia, 109 F.3d 774, 780 (D.C.Cir.1997) (stating that it need not resolve the question whether the RIF extinguished the teachers’ property interests in their jobs)(citing Am. Fed’n of Gov’t Employees v. OPM, 821 F.2d 761, 767 (D.C.Cir.1987) (“[I]t is by no means obvious that a property interest ... survived] a reduction-in-force”)).
In American Federation of Government Employees v. OPM, the United States Court of Appeals for the District of Columbia stated:
Because Loudermill involved a termination for cause, not a reduction-in-force, it is by no means obvious that a property interest in continued employment is even implicated here. But assuming arguendo that a property interest in continued employment does survive a reduction-in-force, whether a pre-termination hearing is constitutionally required necessarily turns in part on a balance between employee stigma and employer interests. Unlike a termination for cause, which is inherently stigmatizing because it reflects adversely upon the employee, a RIF termination does not clearly label a laid-off worker. Indeed, appellants do not even argue that RIF terminations automatically stigmatize employees— their concern is with those RIF terminations based in part on less favorable performance evaluations. But, surely there would be cases under the new regulations where an employee would lose his position in a RIF, yet suffer absolutely no stigma. We think we would be on “surer footing,” therefore, if we wait for a specific employee’s challenge to his layoff and then determine if any stigma associated with that layoff gives rise to a pretermination hearing right. See Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).
Given the dependency of appellants’ constitutional claim on the facts of an individual employee’s case, the interest of the court in postponing review ... is substantial. Furthermore, we believe OPM’s failure to provide pre-termination hearing rights has little “immediate an