Gonzales v. City of Albuquerque (849 F. Supp. 2d 1123, 2011)

United States District Court for the District of New Mexico 2011-03-23

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion for Summary Judgment, filed June 6, 2010 (Doc. 56). The Court held a hearing on January 10, 2010. The primary issues are: (i) whether the Plaintiffs have established a genuine issue of material fact on their due-process claims; (ii) whether the Plaintiffs have established a genuine issue of material fact on their breach-of-contract claims; (iii) whether the Plaintiffs have established a genuine issue of material fact on their wrongful termination claims; (iv) whether the Plaintiffs have established a genuine issue of material fact on their Family and Medical Leave Act, 29 U.S.C. §§ 2601 through 2654 (“FMLA”), claims; (v) whether Plaintiff Antoinette Gonzales has established a genuine issue of material fact on her Fair Labor Standards Act, 29 U.S.C. §§ 201 through 219 (“FLSA”), claim; and (vi) whether the Court should grant declaratory judgment on the issue whether the Plaintiffs had a protected property interest in their continued employment. The Court will grant in part and deny in part the Defendants’ Motion for Summary Judgment. The Court will grant summary judgment on the Plaintiffs’ due-process claims, because it finds that the Plaintiffs did not have protected property interests in continued employment. The Court will grant summary judgment on the Plaintiffs’ breach-of-contract claims, because it finds that the Plaintiffs have not established a genuine issue of fact whether they had implied employment contracts. The Court will grant summary judgment on the Plaintiffs’ wrongful termination claims, because the Plaintiffs have not established an issue of fact whether they were discharged in violation of a clear mandate of public policy. The Court will grant summary judgment on the Plaintiffs’ FMLA claims. Assuming that the Plaintiffs’ FMLA claims are retaliation claims, the Court will grant summary judgment on their claims, because some of the Plaintiffs cannot establish a prima-facie case for FMLA retaliation, and because, although some of the Plaintiffs can establish a prima-facie case for FMLA retaliation, the Defendant City of Albuquerque (“the City of Albuquerque”) has set forth a legitimate non-retaliatory reason for the Plaintiffs’ terminations, and those Plaintiffs have not established a genuine issue of fact whether that reason is pretextual. Assuming that the Plaintiffs’ FMLA claims are interference claims, the Court will grant summary judgment on those claims, because the Plaintiffs have not established a genuine issue of fact whether the City of Albuquerque interfered with their rights to take FMLA leave. The Court will not grant summary judgment on Gonzales’ FLSA claim, because Gonzales has established a genuine issue of material fact whether she falls within the executive.exemption. The Court will deny the Plaintiffs’ request that it enter declaratory judgment, because it finds that the Plaintiffs did not have a protected property interest in their continued employment, and it will grant summary judgment on the Plaintiffs’ declaratory judgment claims.

FACTUAL BACKGROUND

The City of Albuquerque is a municipality and public employer. See, e.g., Complaint ¶ 3, at 2, filed May 27, 2010 (Doc. 1-1); Defendants’ Amended Memorandum of Law in Support of Their Motion for Summary Judgment ¶ 2, at 2, filed July 27, 2010 (Doc. 65)(“Amended Memorandum”)(setting forth this fact); Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at 2, filed September 7, 2010 (Doc. 71)(“Response”)(not controverting this fact). Defendant Ed Adams is the former Chief Administrative Officer (“CAO”) for the City of Albuquerque. See Complaint ¶ 3, at 2; Deposition of Esther Tenenbaum at 123:4-5, 123:10-11 (taken January 12, 2010), filed July 27, 2010 (Doc. 65-3); Amended Memorandum ¶ 2, at 2 (setting forth this fact); Response at 2 (not controverting this fact).

Gonzales and Plaintiffs Nicole Bordlemay, Nicole Foster, Yolanda Garcia, James Pescetti, Caroll Austin, Annette Mora, Sarah Clover, and Keri Waites are former employees of the City of Albuquerque’s 311 Citizen Contact Center (“311 CCC”). See, e.g., Complaint ¶ 1, at 1, filed May 27, 2009 (Doc. 1-1); Amended Memorandum ¶ 1, at 1 (setting forth this fact); Response at 2 (not controverting this fact). Gonzales was a salaried supervisor at the end of her tenure with the 311 CCC, while the other eight Plaintiffs were hourly employees. See, e.g., Deposition of Antoinette Gonzales at 31:6-32:4 (taken October 13, 2010), filed July 27, 2010 (Doc. 65-1); Complaint ¶ 1, at 1; Amended Memorandum ¶ 1, at 1-2 (setting forth this fact); Response at 2 (not controverting this fact). Defendant Esther Tenenbaum is the 311 CCC Division Manager. See Complaint ¶ 3, at 2; Amended Memorandum ¶ 2, at 2 (setting forth this fact); Response at 2 (not controverting this fact).

1. 311 CCC Employees.

Section 3-1-6 of the City of Albuquerque’s Merit System Ordinance provides in relevant part that the “unclassified service” shall be comprised of “any position designated as unclassified by the Chief Administrative Officer.” Merit System Ordinance § 3-l-6(C)(9), filed July 27, 2010 (Doc. 65-4). See Amended Memorandum ¶ 3, at 2 (setting forth this fact); Response at 2 (not controverting this fact). “Unclassified employees are employees at will and serve at the discretion of the [CAO].... Such employees shall have no property interest in continued unclassified employment and may be dismissed for any or no reason.” Merit System Ordinance § 3-l-6(D). See Amended Memorandum ¶ 5, at 2 (setting forth this fact); Response at 3 (not controverting this fact).

All employees of the 311 CCC are unclassified under the City of Albuquerque’s Merit System. See, e.g., Mora’s City of Albuquerque Recommendation for Hire/Promotion Form at 1; Clover’s City of Albuquerque Recommendation for Hire/Promotion Form at 1; Bordlemay’s City of Albuquerque Recommendation for Hire/Promotion Form at 1; Foster’s City of Albuquerque Recommendation for Hire/Promotion Form at; Garcia’s City of Albuquerque Recommendation for Hire/Promotion Form at 1; Pescetti’s City of Albuquerque Recommendation for Hire/Promotion Form at 1; Position Control Form (B-3), Ex. A; Position Control Form (B-3), Ex. B; Position Control Form (B-3), Ex. C; Mora’s Employment Information Form at 1; City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65-10)(stating that Austin’s employment status was unclassified, and containing Austin’s signature)(“Austin’s Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65-12)(stating that Clover’s (formerly Broyles’) employment status was unclassified and containing Clover’s signature)(“Clover’s Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65-14)(stating that Bordlemay’s employment status was unclassified and containing Bordlemay’s signature)(“Bordlemay’s Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65-16)(stating that Foster’s employment status was unclassified and containing Foster’s signature)(“Foster’s Employment Information Form”); City of Albuquerque Employment Information Form at 1, filed July 27, 2010 (Doc. 65-18)(stating that Garcia’s employment status was unclassified and containing Garcia’s signature)(“Garcia’s Employment Information Form”); City of Albuquerque Employment Information Form, filed July 27, 2010 (Doc. 65-20)(stating that Pescetti’s employment status was unclassified and containing Pescetti’s signature)(“Pescetti’s Employment Information Form”); Gonzales Depo. at 13:11-15:8 (stating that, at the new-hire training for 311 CCC employees that Gonzales attended, Padilla explained that 311 CCC employees were unclassified); Waites Depo. at 19:10-20:10 (stating that she signed a document which stated her employment status was unclassified when she began to work at 311 CCC). When the 311 CCC was first created, the City of Albuquerque decided that the 311 CCC employees would be unclassified. See Herrera Decl. ¶ 7, at 1-2. The City of Albuquerque believed this status would allow the facility to operate like a private facility relative to wages, benefits, employee incentives, hiring, and discipline procedures. See Herrera Decl. ¶ 7, at 1-2; Tenenbaum Depo. at 33:14 — 24. The CAO designated positions at the 311 CCC as unclassified, as was within his discretion. See Adams Decl. ¶ 3, at 2.

311 CCC employees handle calls from citizens of the city of Albuquerque who call 311. See Tenenbaum Depo. at 34:22-35:5; Amended Memorandum ¶ 9, at 3 (setting forth this fact); Response at 4 (not controverting this fact). With unclassified employees, 311 CCC supervisors can use streamlined procedures to discipline or address employee infractions. See Tenenbaum Depo. at 33:14-34:11. This flexibility is needed, because of the unique aspects of the work performed at the 311 CCC. See Tenenbaum Depo. 33:14-36:12.

2. The Plaintiffs’ Employment at the 311 CCC.

a. Gonzales.

The 311 CCC employed Gonzales from March 2004 until September 2008. See Gonzales Depo. at 11:15-19; Amended Memorandum ¶ 10, at 3 (setting forth this fact); Response at 5 (not controverting this fact). During her tenure at the 311 CCC, Gonzales was promoted from the position of agent to supervisor. See, e.g., Gonzales Depo. at 31:6-17; Amended Memorandum ¶ 11, at 4 (setting forth this fact); Response at 5 (not controverting fact). The 311 CCC supervisor job description — which states that a 311 CCC supervisor must: (i) supervise the activities of the 311 CCC and offer technical assistance to ensure effective operation; (ii) plan and organize to meet production requirements; (iii) handle difficult calls to ensure the most effective procedures are implements; (iv) monitor the productivity and performance of the 311 CCC; (v) conduct performance and quality monitoring and auditing; (vi) produce performance and quality metric analyses and reports; and (vii) create/execute plans for performance and quality improvement — accurately reflects Gonzales’ duties in that position. See, e.g., Gonzales Depo. 64:16-65:5; City of Albuquerque Job Description for Citizen Contact Supervisor at 1-3, filed July 27, 2010 (Doc. 65-2); Amended Memorandum ¶ 11, at 4 (setting forth this fact); Response at 5 (not controverting this fact).

As a supervisor, Gonzales was a salaried employee who made approximately $45,000.00 a year when she was promoted and $50,000.00 at the end of her employment. See, e.g., Gonzales Depo. at 31:6— 32:4; Amended Memorandum ¶ 12, at 4 (setting forth this fact); Response at 5 (not controverting this fact). When Gonzales was an agent, she earned approximately $17.00 an hour — approximately $35,360 annually, based on 2080 hours. See, e.g., Gonzales Depo. at 31:11-17; Amended Memorandum ¶ 12, at 4 (setting forth this fact); Response at 5 (not controverting this fact). As a supervisor, Gonzales was responsible for the performance of a team of 311 CCC contact agents; she supervised approximately ten to fifteen employees when she worked the day shift, and three to four people when she worked the graveyard shift. See, e.g., Gonzales Depo. at 37:20-24, 49:9-19; Amended Memorandum ¶ 13, at 4 (setting forth this fact); Response at 5 (not controverting this fact). 311 CCC supervisors are responsible for coaching and leading their teams, for disciplining and reviewing their team, and for ensuring adherence to City policy, but Gonzales did not have a role in hiring or firing employees or in recommending an employees’ termination. See, e.g., Tenenbaum Depo. at 47:16-48:14, 50:3-20; Waites Depo. at 23:8-16, 24:5-18, 25:7-11; Gonzales Depo. at 38:5-39:15. Gonzales attended management training that discussed the supervisory responsibilities in managing a team of employees. See, e.g., Gonzales Depo. at 32:18-21, 33:25-34:7; Amended Memorandum ¶ 15, at 4 (setting forth this fact); Response at 5-6 (not controverting this fact).

When she was promoted to supervisor, Gonzales’ work station changed, so that she sat on a raised area overlooking the 311 CCC contact agents. See Gonzales Depo. at 36:19-37:6; Deposition of Annette Mora 13:7-25 (taken October 14, 2009), filed July 27, 2010 (Doc. 65-7); Amended Memorandum ¶ 16, at 4 (setting forth this fact); Response at 5-6 (not controverting this fact). Gonzales monitored her employees’ calls and counseled them on how to best handle the telephone calls. See, e.g., Gonzales Depo. at 38:2-40:20; Amended Memorandum ¶ 17, at 4 (setting forth this fact); Response at 5-6 (not controverting this fact). Gonzales reviewed call action and development plans with her employees based on their performance and completed progressive disciplinary forms, all of which were considered when disciplining employees. See, e.g., Gonzales Depo. at 43:9-23, 47:6-18, 50:8-16, 53:7-15, 54:6-15; Amended Memorandum ¶ 18, at 5 (setting forth this fact); Response at 5-6 (not controverting this fact). Although Gonzales signed requests for leave and requests for overtime, she did not have the authority to approve the requests. See, e.g., Gonzales Aff. ¶ 14, at 3; Gonzales Depo. at 58:6-59:9, 59:19-21, 60:5-16, 62:5-19, 63:10-64:5. 311 CCC contact agents referred to Gonzales as their supervisor, and Gonzales participated in the agents’ interviews. See, e.g., Mora Depo. at 9:15— 19, 10:9-11; Deposition of Caroll Austin at 40:25-41:4 (taken October 13, 2009), filed July 27, 2010 (Doc. 65-9); Deposition of Sarah Clover at 11:2-12:2 (taken October 14, 2009), filed July 27, 2010 (Doc. 65-11); Amended Memorandum ¶ 20, at 5 (setting forth this fact); Response at 5-6 (not controverting this fact).

During her tenure, Gonzales was placed on intermittent FMLA leave. See Tenenbaum Depo. at 99:4-7; Amended Memorandum ¶ 21, at 5 (setting forth this fact); Response at 5-6 (not controverting this fact). The City of Albuquerque terminated Gonzales in September 2008, because two employees submitted complaints about her, and because she hosted a charity event at the 311 CCC in the 311 CCC’s name, contravening the City of Albuquerque’s policies when she was told not to do so. See Tenenbaum Depo. at 53:19-54:3, 102:21-104:14.

b. Austin.

Austin began working as an agent at the 311 CCC in June 2005. See Austin Depo. at 5:5-10 (stating that she first started working for the City of Albuquerque in “June of 2005” at the 311 CCC). In October 2007, Austin requested placement on medical leave from Esther Tenenbaum and Betty Dinelli, who worked for the administration in payroll. See Austin Depo. at 11:3-12:14. Tenenbaum and Dinelli informed her that she had approximately forty-seven hours of FMLA leave. See Austin Depo. at 11:24-12:5. Tenenbaum informed Austin that she would be considered a voluntary resignation if she did not show up for work after she exhausted all the leave to which she was entitled. See Tenenbaum Depo. at 55:10-56:14, 91:19— 93:2, 97:2-6. Subsequently, Austin exhausted her leave and then did not return to work for three days. See Austin Depo. at 16:1-25, 20:7-23:5. The City of Albuquerque terminated Austin’s employment, informing her that her services were no longer needed. See Austin Depo! at 22:23-23:5; Tenenbaum Depo. at 55:10-56:14, 91:19-93:2, 97:5-6.

c. Mora.

In May 2005, the City of Albuquerque hired Mora to work as an agent at the 311 CCC. See, e.g., Mora Depo. at 7:21-8:5; Amended Memorandum ¶ 25, at 6 (setting forth this fact); Response at 7 (not controverting fact). During her tenure, Mora requested and was granted a leave of absence, and she exhausted 960 hours during such leave. See, e.g., Mora Depo. at 18:8-14; Amended Memorandum ¶ 26, at 6 (setting forth this fact); Response at 7 (not controverting fact). The City of Albuquerque sent Mora a letter advising her she had exhausted this leave. See, e.g., Mora Depo. at 22:5-23:11; Amended Memorandum ¶26, at 6 (setting forth this fact); Response at 7 (not controverting this fact). Mora did not return to work after exhausting her leave, and, consequently, the City of Albuquerque treated her situation as a voluntary resignation under its policies and procedures. See Tenenbaum Depo. at 60:17-22, 79:15-80:15; Amended Memorandum ¶ 27, at 6 (setting forth this fact); Response at 7 (not controverting fact),

d. Clover.

The City of Albuquerque employed Clover as an agent at the 311 CCC. See, e.g., Clover Depo. at 5:25-6:24; Amended Memorandum ¶ 28, at 6 (setting forth this fact); Response at 7 (not controverting fact). On December 19, 2006, Clover went on maternity leave; she returned to a full-time schedule in late May or June when she had exhausted her FMLA leave. See Clover Depo. at 32:10-15; Amended Memorandum ¶ 29, at 6 (setting forth this fact); Response at 7 (not controverting fact). Clover continuously violated the City of Albuquerque’s attendance policies, was placed on a progressive discipline plan, and was ultimately terminated for her failure to adhere to such policies. See Tenenbaum Depo. at 53:1-13, 114:17-25, 118:10-12.

e. Bordlemay.

On or around November 19, 2009, the City of Albuquerque terminated Bordlemay’s employment as a 311 CCC contact agent, because of her mishandling of a citizen call and for her lack of respect for, or professionalism to, clients. See Tenenbaum Depo. at 30:24-31:14.

f. Foster.

On or about October 19, 2009, the City of Albuquerque terminated Foster’s employment as a 311 CCC contact agent, because she violated the City of Albuquerque’s policy and procedures by taking personal time in the “chill room” and by wearing earphones while at work. Deposition of Nicole Foster at 5:9-19, 40:16-42:12, 47:3-5 (taken January 13, 2010), filed July 27, 2010 (Doc. 65-15).

g. Garcia.

In September 2009, the City of Albuquerque terminated Garcia’s employment as a 311 CCC contact agent, pursuant to the City of Albuquerque’s progressive disciplinary procedures, for performance-related issues. See Deposition of Yolanda Garcia at 10:11-13, 26:10-27:2 (taken January 13, 2010), filed July 27, 2010 (Doc. 65-17); Tenenbaum Depo. at 57:9-11 (stating that Garcia was terminated for “not meeting quality standards after being on disciplinary action”).

h. Pescetti.

On or around May 16, 2008, the City of Albuquerque terminated Pescetti’s employment as a 311 CCC contact agent, because of his poor behavior during a phone call with a citizen. See Tenenbaum Depo. at 58:23-59:2,131:15-24.

i. Waites.

Waites received a “Final Written” in December 2009 for tardiness, notifying her that she may be terminated if she had further incidents in the next 90 days. See Waites Depo. at 43:16^4:18. She was terminated soon after. See Waites Depo. at 58:1-14.

3. The Plaintiffs Knew That They Were Unclassified Employees.

Bordlemay knew she was an at-will employee. See, e.g., Bordlemay Depo. at 7:19-22 (“Being an at-will employee, I — I understand you can be fired for not doing your job or — you know, standard reasons for being fired. But the fact that I’m being fired as a — an at-will employee.... ”); Amended Memorandum ¶ 36, at 7 (setting forth this fact); Response at 10-11 (not specifically controverting this fact). Bordlemay acknowledges that she signed a document stating “Employment Status: Unclassified.” Bordlemay Depo. at 14:10-13, 15:2. See, e.g., Bordlemay’s Employment Information Form at 1; City of Albuquerque Memorandum Re: Recommendation for Hire/Promotion at 1 (dated December 9, 2005), filed July 27, 2010 (Doc. 65-14); Amended Memorandum ¶ 36, at 7 (setting forth this fact); Response at 10-11 (not specifically controverting this fact).

Foster knew from the beginning of her employment that she was unclassified; she received documents that stated that she was an unclassified hire and explained what unclassified meant in training on her first day of employment. See, e.g., Foster Depo. at 14:17-16:25; City of Albuquerque Personnel Action, New Hire at 1, filed July 27, 2010 (Doc. 65-16); Foster’s Employment Information Form at 1; City of Albuquerque Memorandum Re: Recommendation for Hire/Promotion at 1, filed July 27, 2010 (Doc. 65-16); Amended Memorandum ¶ 37, at 7-8 (setting forth this fact); Response at 10-11 (not specifically controverting this fact).

When Garcia began her employment at the 311 CCC, she signed a document that stated her status was unclassified. See, e.g., Garcia Depo. at 17:5-19; Garcia’s Employment Information Form at 1; Amended Memorandum ¶ 38, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Garcia states that she understood the document she signed, but denies that she understood the meaning of unclassified; Garcia states never sought clarification or asked anyone what unclassified meant. See, e.g., Garcia Depo. at 17:5-19; Amended Memorandum ¶ 38, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting this fact).

When Pescetti began his employment, he signed an Employment Information Form that shows his status of unclassified. See, e.g., Pescetti’s Employment Information Form at 1; Amended Memorandum ¶39, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Pescetti also gained understanding of the meaning of unclassified status during new hire training when Tenenbaum and Padilla discussed unclassified status with new hires. See, e.g., Pescetti Depo. at 10:3-24; Amended Memorandum ¶ 39, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact).

Gonzales knew she was unclassified from the beginning of her employment; diming the 311 CCC’s employees’ new hire training Padilla explained that 311 CCC employees were unclassified. See, e.g., Gonzales Depo. at 13:11-15:8; Amended Memorandum ¶ 40, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Furthermore, several times during Gonzales’ employment, Tenenbaum said that 311 CCC employees were at will. See, e.g., Gonzales Depo. at 17:1-3; Amended Memorandum ¶ 40, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Some of the agents whom Gonzales supervised knew that they were unclassified, as they asked whether they could become classified. See, e.g., Gonzales Depo. at 18:25-19:6; Amended Memorandum ¶ 41, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). In the summer of 2009, Gonzales met with Charles Cowen, another employee of the 311 CCC, to discuss employees’ concerns regarding wanting to be classified. See, e.g., Gonzales Depo. at 24:3-25:10; Amended Memorandum ¶ 41, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact).

Austin understood that she held an unclassified position at the 311 CCC. See, e.g., Austin Depo. at 9:12-16, 9:24-10:4; Amended Memorandum ¶ 42, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact). She received and signed documents reflecting her unclassified status. See, e.g., Austin’s Employment Information Form at 1; City of Albuquerque Personnel Action, New Hire at 1; Amended Memorandum ¶ 42, at 8 (setting forth this fact); Response at 10-11 (not specifically controverting fact).

Mora first became aware that she was an unclassified employee when she attended new-hire training that Padilla presented. See, e.g., Mora Depo. at 18:24-19:9; Amended Memorandum ¶ 43, at 9 (setting forth this fact); Response at 10-11 (not specifically controverting fact). She understood that unclassified employees were not eligible for physical layoff like classified employees were. See, e.g., Mora Depo. at 26:13-22; Amended Memorandum ¶ 43, at 9 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Mora also received and signed documents reflecting her unclassified status. See, e.g., Mora’s Employment Information Form at 1; City of Albuquerque Personnel Action, New Hire at 1, filed July 27, 2010 (Doc. 65-8); Amended Memorandum ¶ 43, at 9 (setting forth this fact); Response at 10-11 (not specifically controverting fact).

Waites signed a document that stated her employment status as unclassified when she began to work at the 311 CCC. See, e.g., Waites Depo. at 19:10-20:10; Amended Memorandum ¶ 44, at 9 (setting forth this fact); Response at 10-11 (not specifically controverting fact). Waites understood that employees of the 311 CCC could be terminated for no reason at all. See, e.g., Waites Depo. at 59:8-18; Amended Memorandum ¶ 44, at 9 (setting forth this fact); Response at 10-11 (not specifically controverting fact).

PROCEDURAL BACKGROUND

On April 8, 2009, Gonzales, Austin, Clover, and Mora, on behalf of themselves and a class of similarly situated city employees, filed a Complaint of Violations of Statutory and Constitutional Law in the Second Judicial District Court, Bernalillo County, New Mexico. See Doc. 1-1 (“Complaint”). On May 27, 2010, the Defendants removed the case to federal court. See Notice of Removal, filed May 27, 2010 (Doc. 1). On October 8, 2009, the Court granted the Plaintiffs’ unopposed motion to join Pescetti as a plaintiff. See Order, filed October 8, 2010 (Doc. 20). On February 18, 2010, the Court granted the Plaintiffs’ unopposed motion to join Garcia, Foster, Bordlemay, and Waites as Plaintiffs. See Order, filed February 18, 2010 (Doc. 40).

The Plaintiffs have brought claims alleging that the City of Albuquerque breached the Plaintiffs’ employment contracts, denied them due process and equal protection, and wrongfully terminated the Plaintiffs’ employment. See Complaint ¶¶ 27-42, at 8-10. In Count I, the Plaintiffs allege that “the City Defendants have breached them contracts of employment with the Plaintiffs, have unreasonably taken disciplinary action without just cause, have denied the Plaintiffs and others their contractually required process, and are liable for damages proximately resulting from those contract violations.” Complaint ¶ 29, at 8. In Count II, the Plaintiffs allege that the “Defendants have violated and denied the right of due process of Plaintiffs and other similarly situated employees who have been terminated without just cause and have been denied any predetermination or post-termination process to grieve or appeal the actions against them,” and that the “Defendants have treated Plaintiffs and similarly situated employees and former-employees as second-class employees, even through there is no meaningful or reasonable distinction or difference between these employees and ‘classified’ City employees performing the same or similar work.” Complaint ¶¶ 33, 34, at 8, 9. Count III alleges wrongful termination of employment, because the Plaintiffs were uninformed of their “unclassified” status, and “some or all Plaintiffs have been discriminated against and terminated for improper and illegal reasons, in violation of their statutory rights and entitlements.” Complaint ¶¶ 40-41, at 10. The Plaintiffs also allege in Count IV that the Defendants violated some Plaintiffs’ rights under the FMLA, see Complaint ¶¶ 43^44, at 10, and allege in Count V that the Defendants violated Gonzales’ rights under the FLSA, see Complaint ¶¶ 45-47, at 10-11. The Plaintiffs also seek declaratory judgment in Count VII, stating that “[ijncluded in the issues ... ripe for a declaratory judgment are the issues of property interests in employment, entitlement to union representation, entitlement to hearings, [and] de facto status as classified employees.” Complaint ¶ 58, at 13. According to the Complaint, the class that the Plaintiffs seek to represent consists of “all persons who were treated (or are now being treated) as ‘unclassified’ employees of the City of Albuquerque without good reason or justification, and who have suffered damages and are entitled to injunctive, declaratory, or equitable relief as a result of that treatment.” Complaint ¶ 50, at 11-12.

On May 12, 2010, the Plaintiffs moved the Court for class action certification. See Plaintiffs’ Motion for Class Action Certification, filed May 12, 2010 (Doc. 49). The Court denied the Plaintiffs’ motion for class certification, finding that the “terminated 311-CCC employees have a conflict of interest with current 311-CCC employees, and [that] the number of 311-CCC employees terminated is too few for a class action,” but granted the Plaintiffs thirty days leave to amend the Complaint and join additional Plaintiffs. See Memorandum Opinion and Order at 1, filed August 21, 2010 (Doc. 69).

The Defendants move, pursuant to rule 56 of the Federal Rules of Civil Procedure and D.N.M.LR 56.1, for summary judgment on all of the Plaintiffs’ claims. See Defendants’ Motion for Summary Judgment, filed June 21, 2010 (Doc. 56). The Defendants filed with their motion a memorandum of law setting forth the grounds for the motion and in support of the motion. See Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment, filed June 21, 2010, 2010 (Doc. 57). Pursuant to the Court’s July 13, 2010 Order, see Doc. 62, the Defendants withdrew their original Memorandum and filed their Amended Memorandum of Law in Support of Their Motion for Summary Judgment. See Doc. 65 (“Amended Memorandum”).

The Defendants contend that the Plaintiffs’ claims fail in their entirety and that the Court should grant summary judgment on all of the Plaintiffs’ claims. See Amended Memorandum at 9. The Defendants argue that the Plaintiffs’ breaeh-ofcontract claim fails, because the Plaintiffs were at all times at-will employees with no contract of employment. See Amended Memorandum at 11. The Defendants contend that the Plaintiffs’ claims for denial of due process and equal protection fail, because the Plaintiffs did not plead a violation of 42 U.S.C. § 1983, because the Plaintiffs were unclassified, at-will employees, with no reasonable expectation of continued employment, and because the Plaintiffs were not treated differently from other City employees who were similarly situated, there were legitimate reasons for the Plaintiffs’ unclassified status, and the Plaintiffs cannot prove discriminatory intent. See Amended Memorandum at 12-16. The Defendants contend that the Plaintiffs’ wrongful termination claims fail, because the Plaintiffs were at-will employees with no employment contracts. See Amended Memorandum at 16. The Defendants further argue that the Plaintiffs’ FMLA claims fail, because the Plaintiffs were provided, and exhausted, all FMLA leave to which they were entitled. See Amended Memorandum at 18. The Defendants argue that Gonzales’ FLSA claim fails, because Gonzales was exempt from the FLSA under the executive exemption. See Amended Memorandum at 21. The Defendants also argue that the Plaintiffs are not entitled to declaratory judgment. See Amended Memorandum at 10.

The Plaintiffs responded, arguing that the Court should deny the Defendants’ Motion for Summary Judgment. See Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at 27, filed September 7, 2010 (Doc. 71)(“Response”). The Plaintiffs argue that they had an implied contract. See Response at 14. The Plaintiffs contend that the Court should not grant summary judgment on their claim for denial of due process, because they had a reasonable expectation of continued employment, and because their failure to claim relief under 42 U.S.C. § 1983 is “at most a technical rather than a substantive flaw, one which could easily be repaired when the case is amended.” Response at 14-15, 20-21. The Plaintiffs state that they will voluntarily withdraw, or agree to dismissal, of their equal protection claims, because they are unable to “prove the necessary element of ‘discriminatory intent’ and [because] the existence of a possible ‘rational basis’ for the non-classification may ... be problematic.” Response at 20. The Plaintiffs contend that the Court should not grant summary judgment on their wrongful termination claims, because there are disputed issues of material fact on these claims. See Response at 21. The Plaintiffs further argue that genuine issues of material fact preclude the Court from granting summary judgment on their FMLA claims. See Response at 22-23. The Plaintiffs contend that Gonzales’ FLSA claim should survive summary judgment, because the Defendants have not proved that she qualifies for the executive exemption. See Response at 24. Finally, the Plaintiffs argue that they seek declaratory judgment regarding “whether [they] have a reasonable expectation of continued employment such that they have a property interest in their employment,” and state that the Court may issue or decline to issue declaratory judgment in its discretion. Response at 26.

At the hearing, the Defendants stated that they disagree with the Plaintiffs’ apparent argument that, if the City of Albuquerque develops a progressive discipline system, the system changes the at-will employment status, and that there is nothing inappropriate in the City of Albuquerque having a progressive discipline system coving at-will employees. See Transcript of Hearing at 7:2-7 (taken January 10, 2011)(Bergmann)(“Tr.”). The Court and the Plaintiffs’ counsel, Paul Livingston, engaged in this exchange:

THE COURT: Well, let me — let me try this one more time. There seems to be two arguments you’re making today, and the second one I thought was what this case was about, but now I hear it being about the first issue as well as the second. I guess the issue I thought this case was about is whether these employees were called unclassified by the City but were actually in fact classified employees because of the progressive disciplinary system and — well, that’s what I thought the case was about. And so we were going to go in and look at discovery and see if in fact as often is the case, somebody says they have an at-will employment but they really create such an expectation on the part of employees that they’re going to get disciplined that it’s not really an at will system. I thought that was the case.

MR. LIVINGSTON: Right it was and it is and I’m not sure what the other case is, Your Honor.

THE COURT: Well now I’m hearing you saying that the City can’t create [un]classified positions.

THE COURT: And that — is that your argument, that they can’t create these unclassified positions?

MR. LIVINGSTON: No, Your Honor. That’S' — It’s not that they can’t create them if they have valid reason to and if the employees know they’re working under such a situation.

Tr. at 23:15-24:18 (Court, Livingston). Mr. Livingston stated he was not facially challenging the merit system ordinance, but that he was challenging the application of an exception to the merit system ordinance to the employees. See Tr. at 32:20-33:5 (Court, Livingston).

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., 477 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 LAW REGARDING PROPERTY INTERESTS AND 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. Leims, 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. “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.” 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; 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.

RELEVANT NEW MEXICO LAW REGARDING AT-WILL EMPLOYMENT

New Mexico law states that employment without a written contract and for an indefinite period can be terminated at will by either party with or without cause. In New Mexico, “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). At-will employment relationships “can be terminated by either party 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. “New Mexico courts have recognized two additional exceptions to the general rule of at-will employment: wrongful discharge in violation of public policy (retaliatory discharge), and an implied contract term that restricts the employer’s power to discharge.” Hartbarger v. Frank Paxton Co., 115 N.M. at 668, 857 P.2d at 779.

1. Implied Employment Contract.

New Mexico courts have recognized that, in some instances, an employer can create an implied employment contract based on representations in an employment manual or other practices. A promise, or offer, that supports an implied contract might be found in written representations such as an employee handbook, in oral representations, in the conduct of the parties, or in a combination of representations and conduct. See Newberry v. Allied Stores, Inc., 108 N.M. 424, 426, 773 P.2d 1231, 1233 (1989) (citation omitted). The question whether an employment relationship has been modified is a question of fact. See Lukoski v. Sandia Indian Mgmt. Co., 106 N.M. 664, 666, 748 P.2d 507, 509 (1988). “An implied contract is created only where an employer creates a reasonable expectation. The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon.” Hartbarger v. Frank Paxton Co., 115 N.M. at 672, 857 P.2d at 783. If the alleged employer’s promise is not sufficiently explicit, the courts will not find an implied contract. Hartbarger v. Frank Paxton Co., 115 N.M. at 669, 857 P.2d at 780. “Evidence relevant to this factual decision includes the language used in the personnel manual as well as the employer’s course of conduct and oral representations regarding it.” Lukoski v. Sandia Indian Mgmt. Co., 106 N.M. at 666, 748 P.2d at 509 (citation omitted).

“Whether an employer’s words and conduct support a reasonable expectation on the part of employees that they will be dismissed only in accordance with specified procedures or for specified reasons generally is a question of fact for the jury.” Mealand v. E.N.M. Med. Ctr., 131 N.M. 65, 69, 33 P.3d 285, 289 (2001). “[Bjecause an employee’s expectation based on an employer’s words or conduct must meet a certain threshold of objectivity, an employer may be entitled to judgment as a matter of law if the employee’s expectations are not objectively reasonable.” West v. Wash. Tru Solutions, LLC, 147 N.M. 424, 426, 224 P.3d 651, 653 (Ct. App.2009). In deciding whether to grant summary judgment, the question is whether a reasonable jury could find that the words and conduct support an objectively reasonable expectation that the employees would be dismissed only in accordance with specified procedures and for specified reasons. See Mealand v. E.N.M. Med. Ctr., 131 N.M. at 69, 33 P.3d at 289.

2. Wrongful Termination Claims.

New Mexico has recognized a public-policy exception to the common-law employment-at-will doctrine. See Vigil v. Arzola, 102 N.M. 682, 688, 699 P.2d 613, 619 (Ct.App.1983), rev’d in part on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), modified by Boudar v. E.G. & G., Inc., 106 N.M. 279, 280-81, 742 P.2d 491, 492-93 (1987)(allowing retroactive application), and modified by Chavez v. Manville Prods. Corp., 108 N.M. 643, 649-50, 777 P.2d 371, 377-78 (1989)(lowering plaintiffs burden of proof and allowing recovery for emotional distress). Accordingly, an at-will employee can recover in tort when his termination contravenes a clear mandate of public policy. See Chavez v. Manville Prods. Corp., 108 N.M. at 647, 777 P.2d at 375. Courts determine whether an employee has stated a sufficient policy to recover for the tort of wrongful discharge on a case-by-case basis. See Sanchez v. The New Mexican, 106 N.M. 76, 79, 738 P.2d 1321, 1324 (1987); Shovelin v. Cent. N.M. Elec. Coop., 115 N.M. 293, 304, 850 P.2d 996, 1007 (1993). “For an employee to recover under this new cause of action, he must demonstrate that he was discharged because he performed an act that public policy has authorized or would encourage, or because he refused to do something required of him by his employer that public policy would condemn.” Shovelin v. Cent. N.M. Elec. Coop., 115 N.M. at 303, 850 P.2d at 1006 (quoting Chavez v. Man-ville Prods. Corp., 108 N.M. at 647, 777 P.2d at 375; Vigil v. Arzola, 102 N.M. at 689, 699 P.2d at 620). “The employee must also show a causal connection between his actions and the retaliatory discharge by the employer. If the employee proves his case by a preponderance of the evidence, he is entitled to recover damages for his pecuniary loss as well as damages for emotional distress.” Shovelin v. Cent. N.M. Elec. Coop., 115 N.M. at 303, 850 P.2d at 1006 (internal citations and footnote omitted).

The Supreme Court of New Mexico has stated:

The linchpin of a cause of action for retaliatory discharge is whether by discharging the complaining employee the employer violated a “clear mandate of public policy.” See Vigil, 102 N.M. at 688, 699 P.2d at 619. A clear mandate of public policy sufficient to support a claim of retaliatory discharge may be gleaned from the enactments of the legislature and the decisions of the courts and may fall into one of several categories ....

“ ‘[U]nless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause.’ ” Id. (quoting Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505, 512 (1980)). Accordingly, the courts interpreting New Mexico law have adhered to the rule that retaliatory discharge is a narrow exception to the rule of employment at will and have refused to expand its application. See Zaccardi v. Zale Corp., 856 F.2d 1473, 1475-76 (10th Cir.l988)(discharge for refusal to take polygraph examination did not violate public policy); Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985) (discharge for use of employer’s grievance procedure did not violate public policy); Jeffers v. Butler, 762 F.Supp. 308, 310 (D.N.M.1990)(holding that no public policy stated where employee, and not public at large, would benefit from employee’s whistleblowing actions), aff'd without opinion, 931 F.2d 62 (10th Cir.1991); Salazar v. Furr’s, Inc., 629 F.Supp. 1403, 1409 (D.N.M.1986)(family unity is not public policy protected by retaliatory discharge cause of action); Paca v. K-Mart Corp., 108 N.M. 479, 480-81, 775 P.2d 245, 246-47 (1989)(discharge for violation of company policy did not violate public policy); Francis v. Memorial Gen. Hosp., 104 N.M. 698, 701, 726 P.2d 852, 855 (1986)(nurse discharged for refusing to follow employer’s policy regarding “floating” did not state claim for retaliatory discharge); Maxwell v. Ross Hyden Motors, Inc., 104 N.M. 470, 474, 722 P.2d 1192, 1196 (Court.App.1986) (Unemployment Compensation Law does not establish public policy prohibiting discharge in bad faith and without notice); Zuniga v. Sears, Roebuck & Co., 100 N.M. 414, 416-17, 671 P.2d 662, 664-65 (Ct.App.)(discharge based on employer’s erroneous belief that employee had attempted to steal from employer did not violate public policy), cert. denied, 100 N.M. 439, 671 P.2d 1150 (1983). In fact, in only three reported cases have the courts in this state recognized a public policy sufficient to support a cause of action for retaliatory discharge: Salazar, 629 F.Supp. at 1409 (recognizing retaliatory discharge cause of action when employee discharged to prevent vesting of pension benefits); Boudar [v. E.G. & G., Inc.], 106 N.M. [279,] 283, 285, 742 P.2d [491,] 495, 497 [(1987)] (recognizing retaliatory discharge cause of action when plaintiff discharged for whistleblowing); Vigil, 102 N.M. at 690, 699 P.2d at 621 (recognizing retaliatory discharge cause of action when plaintiff discharged for reporting misuse of public funds). Whether an employee has stated a sufficient public policy to recover for the tort of retaliatory discharge is determined on a case-by-case basis. Vigil, 102 N.M. at 689, 699 P.2d at 620.

Shovelin v. Cent. N.M. Elec. Coop., 115 N.M. at 303-04, 850 P.2d at 1006-07 (footnote omitted).

LAW REGARDING THE FMLA

The FMLA entitles qualifying employees to a total of twelve administrative weeks of leave during any twelve-month period under certain specified circumstances, including instances where a serious health condition makes an employee unable to perform the functions of the employee’s position, where the employee has given birth or has adopted a son or daughter, or where the employee’s spouse, son, daughter, or parent has a serious health condition and needs the employee to care for him or her. See 29 U.S.C. § 2612(a)(1); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir.2006)(“The FMLA guarantees the substantive rights of up to twelve weeks of unpaid leave for eligible employees of covered employers for serious health conditions and reinstatement to the former position or an equivalent one upon return from that leave.”).

The FMLA states that it “shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter,” and that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(1), (2). The United States Court of Appeals for the Tenth Circuit has “recognized two theories of recovery under § 2615(a): an entitlement or interference theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d at 1170 (citation omitted). “The distinction between these two theories is important because the elements and burdens of proof that apply to § 2615(a)(1) claims differ from those that apply to § 2615(a)(2) claims.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d at 1170 (citation omitted).

Courts analyze FMLA retaliation claims under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir.1997) (citation omitted). “Under that standard, the plaintiff initially must establish a prima facie case.” See Richmond v. ONEOK Inc., 120 F.3d at 208 (citation omitted). To establish a primafacie case for FMLA retaliation, “a plaintiff must show that:” (i) he or she “engaged in activity protected under the act;” (ii) “subsequently suffered adverse action by the employer;” and (iii) “a causal connection existed between the employee’s activity and the adverse action.” Richmond v. ONEOK Inc., 120 F.3d at 208-09. “The burden then shifts to the employer to offer a legitimate non-retaliatory reason for the plaintiffs termination.” See Richmond v. ONEOK Inc., 120 F.3d at 208 (citation omitted). “If the employer offers such a reason, the burden then shifts back to the plaintiff to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual.” See Richmond v. ONEOK Inc., 120 F.3d at 208 (citations and internal quotation marks omitted). “A plaintiff can demonstrate pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s ... reasons for its action, which a reasonable factfinder could rationally find ... unworthy of credence.” Richmond v. ONEOK Inc., 120 F.3d at 209 (citation and internal quotation marks omitted). “Mere conjecture that the employer’s reason is pretext, however, will not defeat a motion for summary judgment.” See Richmond v. ONEOK Inc., 120 F.3d at 209 (citation omitted).

To prevail on an interference theory, a plaintiff must demonstrate that: (i) he or she was entitled to FMLA leave, (ii) “some adverse action by the employer interfered with his [or her] right to take FMLA leave;” and (iii) “the employer’s action was related to the exercise or attempted exercise of his [or her] FMLA rights.” Jones v. Denver Pub. Schs., 427 F.3d 1315, 1319 (10th Cir.2005) (citation omitted). “Under this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer’s intent, and the McDonnell Douglas burden-shifting analysis does not apply to interference claims.” See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d at 1180 (internal citations omitted).

LAW REGARDING THE FLSA

The FLSA requires covered employers to pay their nonexempt employees overtime pay of time and one half their regular rate of pay for hours worked in excess of forty in a work week. See 29 U.S.C. § 207. The FLSA exempts individuals “employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). “The employer has the burden of showing that its employees are exempt from the FLSA’s overtime provisions.” Aaron v. City of Wichita, Kan., 54 F.3d 652, 657 (10th Cir.1995) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974)). “An employee must fit ‘plainly and unmistakenly within the exemption’s terms,’ and the FLSA exemptions are to be narrowly construed.” Hays v. City of Pauls Valley, 74 F.3d 1002 (10th Cir.1996)(citing Aaron v. City of Wichita, 54 F.3d at 657).

The Code of Federal Regulations provides:

(a) The term “employee employed in a bona fide executive capacity” in section 13(a)(1) of the Act shall mean any employee:

(1) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities;

(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of two or more other employees; and

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

29 C.F.R. § 541.100.

ANALYSIS

The Court will grant summary judgment on the Plaintiffs’ due-process claims, because it finds that the Plaintiffs did not have protected property interests in continued employment. The Court will grant summary judgment on the P