Tapia v. City of Albuquerque (10 F. Supp. 3d 1207, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Dismissing Complaint in its Entirety, filed March 29, 2013 (Doc. 26)(“MTD & MSJ.”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court will dismiss for failure to state a claim or grant summary judgment on the Plaintiffs’ claims against Defendants City of Albuquerque, Richard Berry, Robert J. Perry, and Bruce Rizzieri (“the City Defendants”). The Court will grant the MTD & MSJ. The Plaintiffs have not shown that the City of Albuquerque has a custom or policy that directly caused one of its officers to violate the Plaintiffs’ constitutional rights; accordingly, the City of Albuquerque is not subject to liability for the Plaintiffs’ constitutional claims. The Plaintiffs have not stated a claim for violations of the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment, and no evidence supports their allegations; accordingly, the Court will grant the MTD & MSJ as to those claims. No evidence supports the Plaintiffs’ allegations that the City Defendants breached a contract with them; the Court will, therefore, grant the MTD & MSJ as to that claim. Plaintiff Jessica Tapia has not stated a claim that any City Defendant violated a privacy right that the Constitution protects, and no evidence supports her allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not adequately alleged the elements of a negligence claim against any City Defendant, and statutory immunities protect the City Defendants from liability; accordingly, the Court will grant the MTD & 'MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants conspired to violate their Constitutional rights, and no evidence supports the Plaintiffs’ allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants engaged in unfair labor practices, and no evidence supports the Plaintiffs’ allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. Finally, the Plaintiffs have not shown that the individual City Defendants violated Constitutional rights that were clearly established at the time the City Defendants violated them; accordingly, the individual City Defendants are entitled to qualified immunity.

FACTUAL BACKGROUND

The Court presents the factual background in multiple parts. To provide background for the MTD & MSJ, the Court takes the facts in, the first four sections from the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. l-l)(“Complaint”). The Complaint’s organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.

The Court sets forth the undisputed facts in the remaining sections. The Plaintiffs did not respond to the MTD & MSJ. Under the local rules, “[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.” D.N.M.LR-Civ. 56.1(b). Accordingly, the statement of undisputed facts incorporates all statements in the MTD & MSJ that evidence supports.

1.The Parties.

Plaintiff “Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van.” Complaint ¶ Í, at 1 (emphasis omitted). Plaintiff “Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011.” Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff “[t]he New Mexico Transportation Union (“NMT[U]”), [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman.” Complaint ¶ 3, at 2 (emphasis omitted). “Defendant City of Albuquerque is the largest city in New Mexico; Albuquerque is in Bernalillo County, New Mexico.” Complaint ¶ 4, at 2 (emphasis omitted). Defendant “Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City.” Complaint ¶ 5, at 2 (emphasis omitted). Defendant “[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;” according to the Plaintiffs, “the current Personnel Board operates unlawfully under the control and direction of’ Perry. Complaint ¶ 6, at 2. Non-party “[t]he City Labor-Management Relations Board is supposed to be a neutral quasi-judicial hearing panel;” the current Labor Board operates under the control and direction of the City of Albuquerque, Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is “Director of the City’s Transit Department.” Complaint ¶ 8, at 2. Defendant “Paula Forney is a former assistant City attorney.” Complaint ¶ 9, at 2. Defendant “Carmen Wagner-Mogel was Jessica Tapia’s physician.” Complaint ¶ 10, at 2.

2. Facts Related to the NMTU and City Government Actors.

The Plaintiffs assert that NMTU “petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011,” but “the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624.” Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board, supported “the NMTU in either its grievance or bargaining representation.” Complaint ¶ 11, at 3. “On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU.” Complaint ¶ 12, at 3. “However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded.” Complaint ¶ 13, at 3.

As a direct result of the City’s failure to acknowledge and support NMTU as the ‘ collective bargaining and grievance representative, NMTU and its officials were untrained, inexperienced, and without any office, staff, or operating funds. At the same time the union officers were attempting to represent drivers, the Transit Department unreasonably required them to fully perform their driving schedules.

Complaint ¶ 14, at 3^1. Tapia’s and Aragon’s grievances “were the first two grievances ever handled by NMTU’s new Chairman.” Complaint ¶ 15, at 4.

According to the Plaintiffs, the City Charter requires the mayor to administer and protect “the merit system,” and to appoint “an officer to administer the merit system.” Complaint ¶ 16, at 4. According to the Plaintiffs, “[t]he City has not appointed or hired” such an officer. Complaint ¶ 17, at 4. “[Moreover, the Merit System Ordinance states that the Mayor” shall designate the CAO — “the City’s highest appointed official and the person authorized to ‘reprimand, suspend, demote or discharge employees’ ” — to administer that system. Complaint ¶ 18, at 4 (quoting MSO § 3-l-2(c)(3)). “The City Personnel Board is neither fair nor neutral,” but instead, “whenever possible[, it] upholds and advances management policies and interests over the rights of City employees. In this case the City dictated the actions of the Personnel Board.” Complaint ¶ 19, at 4.

[U]nder the administration of Mayor Richard Berry the Current Personnel Board and its Personnel Hearing Officers and the Labor Board all act under the direction of Mayor Berry and Robert Perry, without oversight from the City Council, collusively, and in violation of the City Charter and the rights of Plaintiffs and other City employees.

Complaint ¶ 20, at 5.

3. Conñict Between Tapia and the City of Albuquerque.

Tapia’s wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. “Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver.” Complaint ¶22, at 5. “Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to ‘monitor’ the public restrooms at the City’s Alvarado Transit Center. While ‘monitoring’ at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder.” Complaint ¶21, at 5. “By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do.” Complaint ¶ 23, at 5. .

On December 27, 2010, counsel wrote to ■ Transit Director Bruce Rizzieri and the Human Resources manager, to inquire about the City’s justification for putting Ms. Tapia in the cold Guard Shack with nothing to do. They did not respond. On January 21, 2011, counsel wrote again to further question and object to the City’s mistreatment of Ms. Tapia and to give notice of her tort claims.

Complaint ¶ 24, at 5.

On February 15, 2011, the Transit Department scheduled a Pre-Determination Hearing (PDH) for February 24, 2011, charging that Ms. Tapia ‘submitted a P-30 Request for Leave form with 68.270 hours of Absent Without Leave.’ Mr. Bird cancelled that ‘hearing’ after Ms. Tapia and her attorney appeared because, he said, he had forgotten to refer the case to the mediation office.

Complaint ¶25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶ 26, at 6. When Tapia’s attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia “submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations.” Complaint ¶ 26, at 6 (source of quotation unidentified). “Ms. Tapia had submitted the form on the instructions of Transit’s Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension.” Complaint ¶ 27, at 6.

On April 18, 2011, the Transit Department gave [Tapia] another- -Notice, scheduling a pre-determination hearing for May 9, 2011. Included in the allegations was the contention that on “April 11, 2011 Clarence Decker ‘witnessed you in the Security Building at approx. 12:30 p.m. At 3:00 p.m., ‘(y)ou were not at your assigned work area.’ ”

Complaint ¶ 27, at 6 (source of quotation unidentified).

On April 21, 2011, another Notice scheduled a hearing for June 3, 2011. Among the allegations were that “On April 18-20, 2011 you did not show up for work or call in to be absent from work ... [sic] Your AW absences totaling 24 hours have placed you in violation of City Rules and Regs.” This was apparently also based on a complaint by Clarence Decker about Jessica Tapia’s ‘absents and failure to call in.’ ”

Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See Complaint ¶ 29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City’s untrue account, Ms. Tapia had requested accommodation in October, 2010 ‘citing that you are unable to drive at night due to your medical condition.’ ” Complaint ¶ 30, at 31. “Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of ‘driving at night’ and ‘purchasing liquor at a Walgreens establishment then attending what appeared to be a party.’ ” Complaint ¶ 31, at 7 (source of quotation unidentified).

Also, according to the Plaintiffs’ account, the City’s

FMLA- Coordinator contacted your ;physician to inquire if your medical condition had changed ... physician stated you had not been under her care since the first part of April when she certified your FMLA for intermittent leave and that she did not have a medical explanation for why you have not been to work.

(Emphasis added.)

Complaint ¶ 32, at 7 (omission in Complaint).

“On June 8, 2011, Jessica Tapia received the ‘results of pre-detérmination hearing’ that ‘on April 18-20, 2011, you did not show up for work or call in to be absent from work.’ The Transit department imposed a 15-workday, 120 hour suspension without pay.” Complaint ¶ 33, at 7. ‘Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia’s employment.” Complaint ¶ 34, at 8.

“On August 2, 2011, the City’s attorney, Paula Forney, drafted and issued a subpoena for Ms. Tapia’s medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release.” Complaint ¶ 40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, and stated “that it was: ‘[f]or the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. ... and bring with you: Any and all documents in your possession regarding Jessica Tapia ... beginning 01/01/2010 to the present.’ ” Complaint ¶ 41, at 9. “In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: ‘You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.’ ” Complaint ¶ 42, at 9 (source of quotation not provided). On August 4, 2011, Dr. WagnerMogle sent Tapia’s records to Forney by facsimile transmission, without requesting or securing a release or other authorization, and without notifying Tapia. See Complaint ¶ 43, at 9. “On August 8, 2011, Ms. Forney wrote to counsel that she had received ‘A phone call from Ms. Tapia’s doctor acknowledging that she should not have sent Ms. Tapia’s records without a release.’ ” Complaint ¶ 44, at 10. “Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia.” Complaint ¶ 45, at 10.

After the hearing officer allowed “the City unlimited ‘discovery’ (including Ms. Tapia’s medical records), Ms. Forney propounded burdensome and offensive ‘discovery requests’ designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information.” Complaint ¶ 46, at 10. “The Hearing Officer signed an order dismissing Ms. Tapia’s case, but the Personnel Board objected that Mr. Bingham’s order did not give any reasons or include any ‘findings.’ The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a ‘correct’ order.” Complaint ¶ 47, at 10. “Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of ‘findings and conclusions’ dismissing Ms. Tapia’s case.” Complaint ¶ 48, at 10. “The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the ‘Order’ drafted by Ms. Forney, dismissing Ms. Tapia’s Personnel Board case without a hearing.’ ” Complaint ¶ 49, at 10. “At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp ‘approval’ of Ms. Forney’s findings and conclusions.” Complaint ¶ 50, at 11.

Counsel for Ms. Tapia subsequently filed a motion for sanctions against the City, Ms. Forney and the Personnel Hearing Officer for their violations of Ms. Tapia’s right to privacy. The Board members denounced Tapia’s counsel for bringing the charges before the Personnel Board and the Board unanimously refused to consider the issue.

Complaint ¶ 51, at 11.

4. Conflict Between Aragon and the City of Albuquerque.

“The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011.” Complaint ¶ 35, at 8 (footnote omitted). The Complaint lists, without farther explanation, a number of “Results of Pre-Disciplinary He[ar]ings” and states that “in addition the City has held two investigations ... and issued at least seven letters of investigation.” Complaint ¶ 35 n. 1, at 8.

The City has charged Ms. Aragon with very many infractions. On March 16, 2008, for example, the City charged Ms. Aragon with violating section 300, 301.1, 301.9, 302, 301.13, 401.11 (DI, E), 402.5(C), 902, 902.1 (C, D, G, J. [sic] L, Ml,-2, 3) and Sec. 12.34 (Major Policy Violations/Gross Misconduct, Transit SOP). Plaintiffs do not know what those charges are for or what happened to those charges.

Complaint ¶ 36, at 8. “On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition.” Complaint ¶ 37, at 8. “On June 1, 2011, Ms. Paez charged Ms. Aragon with violations of Section 300, 302, 402.5(c) and 902.1 (E. [sic] J, and M-3).” Complaint ¶ 38, at 8. “Although the record indicates an increasing concern over attendance and use of sick leave, the City has never explained the reasons for its disciplinary actions against Ms. Aragon.” Complaint ¶ 39, at 9.

“On October 17, 2011, Mr; Lucero wrote to Ms. Wardlaw to request Vanessa Aragon’s case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees.” Complaint ¶ 52, at 11. ' “The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it.” Complaint ¶ 53, at 11. “Without any attempt to contact Ms. Aragon, the City’s Personnel Hearing Officer wrongly concluded that: ‘... it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.’ ” Complaint ¶ 54, at 11 (omission in Complaint)(source of quotation not provided).

According to the City’s Personnel Hearing Officer, “Employee failed to establish good and sufficient cause for her untimely request for a continuance.”

The Hearing Officer therefore recommends that the Personnel Board deny Employee’s request for a continuance. The Employee having failed to appear or to otherwise prosecute her appeal, it is further recommended that the Personnel Board dismiss the appeal of Employee’s termination.

Complaint ¶ 55, at 12 (source of block quotation not provided).

Not knowing about the status of NMTU and its representational abilities and without inquiring or even asking Mr. Lucero, the Hearing Officer erroneously found that the request for a continuance was made because of “problems associated with the fact that NMTU was moving into new facilities.” In fact, there were-no “new facilities” and Ms. Aragon was unaware of what was happening, but the Hearing Officer, acting in collusion with the City, recommended termination without a hearing anyway.”

Complaint ¶ 56, at 12.

5. Undisputed Facts: Tapia’s Claims.

“Tapia was a sun van driver who got injured on the job.” MTD & MSJ Memo. ¶ 1.1, at 2 (setting forth this fact); Affidavit of Mary Scott ¶ 4, at 2, executed March 27, 2013, filed March 29, 2013 (Doc. 27-l)(“Scott Aff.”). “She was covered by the City under worker’s compensation.” MTD & MSJ Memo. ¶ 1.2, at 3 (setting forth this fact); Scott Aff. ¶ 6, at 2. “Tapia applied for and received” leave under Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (“FMLA”). MTD & MSJ Memo. ¶ 1.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. “On June 8, 2010, Defendant Dr. Carmen Wagner-Mogle signed a certification for Tapia to receive FMLA leave for her diabetes, one time per week, 1-2 days per episode.” MTD & MSJ Memo. ¶ 1.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. See City of Albuquerque Family and Medical Leave Certification at 1, executed June 8, 2010, filed March 29, 2013 (Doc. 27-2). “She was approved for intermittent FMLA leave beginning June 8, 2010, until June 7, 2011 for her diabetes.” MTD & MSJ Memo. ¶ 1.4, at 3 (setting forth this fact); Scott Aff. ¶ 9, at 2. See City of Albuquerque Family and Medical Leave Certification at 1. “She was returned to light duty from her on-the-job injury and assigned to the Vehicle Maintenance Division, to work swing shift, reporting to work at 3:30 p.m. on September 20, 2010.” MTD & MSJ Memo. ¶ 1.5, at 3 (setting forth this fact); Scott Aff. ¶ 10, at 3. See Inter-Office Memorandum from Danny R. Holcomb to Jessica Tapia at 1, executed September 28, 2010, field March 29, 2013 (Doc. 27-4). “On September 21, 2010, Dr. Carmen Wagner-Mogle wrote a letter to the city indicating that Tapia should be on day shift because she could not drive in the dark.” MTD & MSJ Memo. ¶ 1.11, at 3 (setting forth this fact); Scott Aff. ¶ 11, at 3. See Letter from Carmen Wagner-Mogle, M.D., to To Whom It May Concern, executed September 21, 2010, filed March 29, 2013 (Doc. 27-5). “The City complied and placed Tapia on day shift.” MTD & MSJ Memo. ¶ 1.7, at 3 (setting forth this fact); Scott Aff. ¶ 16, at 3.

“On November 2, 2010, Tapia was outside her assigned work area when she was accosted by a homeless person.” MTD & MSJ Memo. ¶ 8, at 3 (setting forth this fact); Scott Aff. ¶ 13, at 3. See Security Incident Report, executed November 3, 2010, filed March 29, 2013 (Doc. 27-6). “Tapia received worker’s compensation for this injury.” MTD & MSJ Memo. ¶ 9, at 3; Scott Aff. ¶ 13, at 3.

“On December 23, 2010, she was approved to return to work, with restrictions which included no driving heavy equipment or cars and limited use of her shoulder.” MTD & MSJ Memo. ¶ 10, at 4 (setting forth this fact); Scott Aff. ¶ 15, at 3. See Physical Evaluation Form, executed December 21, 2010, filed March 29, 2013 (Doc. 27-7). “Tapia was assigned, on day shift, to monitor the guard shack at [the Transit Department’s] Daytona facility.” MTD & MSJ Memo. ¶ 11, at 4 (setting forth this fact); Scott Aff. ¶ 16, at 3. “On February 11, 2011, Tapia submitted a request for leave, requesting 68.27 hours leave without pay.” MTD & MSJ Memo. ¶ 12, at 4 (setting forth this fact); Scott Aff. ¶ 17, at 3. See Interoffice Memorandum from James Bird to .Jessica Tapia at 1, executed February 24, 2011, filed March 29, 2012 (Doc. 27-8)(“March Pre-Determination Memo.”). “[T]he request was treated as an absence without leave because she took off those hours without obtaining approval.” MTD & MSJ Memo. ¶ 13, at 4 (setting forth this fact); Scott Aff. ¶ 18, at 4. “Tapia was given notice of a pre-determination hearing and a hearing was conducted.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at

4. See March Pre-Determination Memo, to Tapia at 1; Interoffice Memorandum from James Bird to Jessica Tapia at 1, executed April 14, 2011, filed March 29, 2018 (Doc. 27-9)(“March Hearing Results Memo, to Tapia”). “On March 18, 2011, Tapia was assessed three days leave without pay as discipline for her improper usage of leave and her improper leave request.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at 4. See March Hearing Results Memo, to Tapia at 2. “She did not file an appeal over this discipline.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact). See Affidavit of Lucinda Montoya ¶ 4, at 2, executed March 26] 2018, filed March 29; 2013 (Doc. 27-39)(“Montoya Aff.”).

“On February 21, 2011, Dr. Carmen Wagner-Mogle submitted an FMLA certification for leave from 02-07-11 to 02-10-11 for acute bronchitis, which was approved” by the City of Albuquerque. MTD & MSJ Memo. ¶ 15, at 4 (setting forth this fact); Scott Aff. ¶ 20, at 4. See Family and Medical Leave Certification at 2-3; executed February 21, 2011, filed March 29, 2013 (Doc. 27-10). “On April 26, 2011, Dr. Wagner-Mogle submitted a new certification for Tapia’s diabetes, severe headaches, and fatigue, which entitled Tapia to be absent from work two times per month, one — three days duration for each episode.” MTD & MSJ Memo. ¶ 16, at 4 (setting forth this fact); Scott Aff. ¶ 21, at 4. See Family and Medical Leave Certification at 2-3, executed February 21, 2011, filed March 29, 2013 (Doc. 27-11).

“On April 11, 2011, Tapia clocked in at 9:59 a.m.; her work hours were from 10:00 a.m. to 6:30 P.M.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. “She did not clock out on April 11, 2011, but, when her supervisor looked for her, she was not at her work station at 3:00 p.m.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶22, at 4. “She called in to take FMLA [leave] on April 12, 2011.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. Tapia “did not inform her supervisor before taking the leave.*’ MTD & MSJ Memo. ¶17, at 5 (setting forth this fact). See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 1, executed May 18, 2011, filed March 29, 2013 (Doc. 27-13)(“April Hearing Results Memo, to Tapia”). Tapia “was given notice of a pre-determination hearing and given that hearing,” at which “[s]he was given an eight day suspension.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See April Hearing Results Memo, to Tapia at 2. “She did not file an appeal over that suspension.... ” MTD & MSJ Memo. ¶ 18, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See Montoya Aff. ¶ 5, at 2.

“On April 18-20, 2013., Tapia did not appear for work.” MTD & MSJ Memo. ¶ 24, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. “She was given a notice of pre-determination hearing and given that hearing,” at which “[s]he was given a 15 day suspension.” MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Interoffice Memorandum from James Bird to Jessica Tapia, dated April 21, 2011, filed March 29, 2013 (Doc. 27-14)(“June Pre-Determination Hearing Memo, to Tapia”). See Interoffice Memorandum from James Bird to Jessica Tapia, executed June 9, 2011, filed March 29, 2013 (Doc. 27-15). “She did not file an appeal over that suspension.” MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. See Montoya Aff. ¶ 6, at 2.

“The City administers its worker’s compensation claims in a department separate from the Transit Department.” MTD & MSJ Memo. ¶ 25, at 5; Scott Aff. ¶ 25, at 5. “On May 2, 2011, surveillance was done on Tapia because she was engaging in activities reportedly outside her restrictions for light duty work,” which “were that she could not operate heavy equipment or a car and only limited use of her shoulder.” MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact); Scott Aff. ¶ 25, at 5. “The surveillance demonstrated that she drove her car at night and used her shoulder in violation of her restrictions.” MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact). See Scott Aff. ¶ 25, at 5; Workers Comp Surveillance Report, dated May 6, 2011, filed March 29, 2013 (Doc. 27-16).

“On May 16, 2011, Tapia was denied her FMLA leave.” MTD & MSJ Memo. ¶21, at 5 (setting forth this fact); Affidavit of Carmen Ortiz, executed March 27, 2013, filed March 29, 2013 (Doc. 27-28)(“Ortiz Aff.”). “The last time she was paid regular pay was September 14 and 15, 2010, and she was paid for-16 hours.” MTD & MSJ Memo. ¶21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. “Since that time, she was carried on FMLA leave, vacation, worker’s compensation, FMLA without pay, suspension and absent without leave.” MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. Tapia’s denial of FMLA leave “was based on a conversation” that Carmen Ortiz, an executive assistant in the City of Albuquerque’s Human Resources Department, “had with Dr. Wagner-Mogle[’s staff].” MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at l. Ortiz “asked for clarification from the doctor of Jessica Tapia’s most recent FMLA request dated May 16, 2011.” Ortiz Aff. ¶ 4, at 2. “Dr. Wagner-Mogle’s office told [her] on May 16, 2011, that there’s ‘no reason [Tapia] should be out 5 weeks straight.’ ” Ortiz Aff. ¶ 4, at 2. See Information Sheet at 1, various dates, filed March 29, 2013 (Doc. 27-30).

On May 31, 2011, Tapia was given a notice of pre-determination hearing. In that notice, she was cited:

a. For requesting a reasonable accommodation that she not work at night and she was observed during the surveillance driving at night.

b. She called in for FMLA for May 6, 2011, and she was observed during the surveillance purchasing liquor, in addition to driving at night.

c. The City’s FMLA representative called Dr. Wagner-Mogle about Tapia needing her FMLA recertified [because of a change in her medical condition] and was-told by the doctor’s staff that the doctor had not seen Tapia since the beginning of April and that the doctor could, find no reason for Tapia to have been off work for so long because Tapia did not have a reasonable medical explanation for her absences.

d. Tapia was notified on May 16, 2011 that she needed to renew her FMLA certification and that she could not be. approved for any further FMLA leave without the recertification. She had not been recertified as of May 31, 2011.

MTD & MSJ Memo. ¶22, at 6 (setting forth these facts); Scott Aff. ¶ 26, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia, executed June 1, 2011, filed May 31, 2011 (Doc. 27-17)(“Sec-ond June Pre-Determination Memo, to Tapia”). “On June 28, 2011, Tapia’s employment was terminated.” MTD & MSJ Memo. ¶ 23, at 6 (setting forth this fact); Scott Aff. ¶ 27, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 4, executed June 28, 2011, filed March 29, 2013 (Doc. 27-18)(“Termination Memo, to Tapia”).

“On July 8, 2011, Mr.. Livingston, on her behalf, filed an appeal contesting the termination.” MTD & MSJ Memo. ¶ 24, at 7 (setting forth -this fact); Scott Aff. ¶ 28, at 6. See Letter from Paul Livingston to Rob Perry, executed July 8, 2011, filed March 29, 2013 (Doc. 27-19). “Patrick Bingham, a contractf ] hearing officer, was assigned to hear” ‘ Tapia’s appeal. MTD & MSJ Memo. ¶ 25, at 7 (setting forth this fact); Scott Aff. ¶ 29, at 7; Montoya Aff. ¶ 9, at 2. “The City obtained leave to serve discovery and served a subpoena, to obtain Tapia’s medical records from Dr. WagnerMogle.” MTD & MSJ Memo. ¶26, at 7 (setting forth this fact). See Montoya Aff. ¶ 10, at 2; Subpoena, executed August 8, 2011, filed March 11, 2013 (Doc. 14)(“For-ney Subpoena”). “Tapia and her counsel were given notice of the subpoena and were served with the discovery requests.” MTD & MSJ ¶ 26, at 7 (setting forth this fact); Montoya- Aff. ¶ 11, at 2. See Letter from Constance L. Zamora to Medical Records Custodian, executed August 2, 2011, filed March 11, 2013 (Doc. 14). Dr. Wagner-Mogle’s office sent Tapia’s medical records to the City of Albuquerque by facsimile transmission. See Letter from Constance L. Zamora to Honora Persson at 1, executed August 9, 2011, filed March 11, 2013 (Doc. 14). “The City returned the documents to Dr. Wagner-Mogle without reading them.” MTD & MSJ Memo. ¶29, at 7 (setting forth this fact). See Letter from Constance L. Zamora to Honora Persson at 1.

“Paul Livingston withdrew as Tapia’s counsel on September 19, 2011 and Ernest Lucero entered his appearance as chairman of NMTU.” MTD & MSJ Memo. ¶ 30, at 2 (setting forth this fact). See Ortiz Aff. ¶ 8, at 2; Notice of Withdrawal and Substitution of Representation, filed March 29, 2013 (Doc. 27-31). “The grievance was dismissed for discovery abuse when neither Mr. Livingston nor Mr. Lucero adequately responded to the discovery, which was approved by the hearing officer.” MTD & MSJ Memo. ¶ 31, at 7 (setting forth this fact); Scott Aff. ¶ 31, at 7. (See Order Dismissing Grievant’s Claim, no date provided, filed March 29, 2013)(Doc. 27-11); Montoya Aff. ¶ 12, at 2. “The Personnel Board upheld the termination for discovery abuse.” MTD & MSJ Memo. ¶ 32, at 8 (setting forth this fact); (Scott Aff. ¶ 31, at 7; Montoya Aff. ¶ 13, at 2). See Hearing Officer’s Proposed Findings of Fact and Conclusions of Law, executed by Hearing Officer December 2, 2011, accepted by the City Personnel Board December 14, 2011, filed March 29, 2013 (Doc. 27-22). “Mr. Livingston appealed the result of termination to the state district court.” MTD & MSJ Memo. ¶ 33, at 8 (setting forth this fact); Montoya Aff. ¶ 14, at 3. “When Mr. Livingston failed to provide the required statement of appellate issues, the case was dismissed for lack of prosecution.” MTD & MSJ Memo. ¶ 34, at 8 (setting forth this fact). See Order Dismissing Appeal, executed June 25, 2012, filed March 29, 2013 (Doc. 27-33)(“Tapia Appeal Dismissal Order”).

6.The Undisputed Facts: Aragon’s Claims.

“Aragon was employed as a motor coach operator.” MTD & MSJ Memo. ¶ 35, at 8 (setting forth this fact); Scott Aff. ¶ 33, at 7.“On May 17, 2011, she was given a direct order to appear for work no later than May 23, 2011.” MTD & MSJ Memo. ¶ 36, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette Paez to Vanessa Aragon at 1, executed May 17, 2011, filed March 29, 2013 (Doc. 27-23)(“Pre-Deter-mination Memo, to Aragon”). “She failed to appear as ordered and her employment was terminated on July 18, 2011.” MTD & MSJ Memo. ¶ 37, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette S. Paez to Vanessa Aragon at 4-5, executed July 18, 2011, filed March 29, 2013 (Doc. 27-24)(“Aragon Termination Memo.”).

“Mr. Livingston, who had entered his appearance on March 21, 2011 on Aragon’s behalf, filed an appeal of that termination.” MTD & MSJ Memo. ¶ 38, at 8 (setting forth this fact); Scott Aff. ¶ 35, at 7. See Electronic Mail Transmission from Paul Livingston to Selinda Guerrero, et al., dated March 21, 2011, filed March 29, 2013 (Doc. 27-25); Montoya Aff. ¶ 15, at 3. “Barbara Albin was assigned as the hearing officer.” MTD & MSJ Memo. ¶ 39, at 9 (setting forth this fact); Scott Aff. ¶ 36, at 7; Montoya Aff. ¶ 16, at 3. “On October 6, 2011, Mr. Livingston withdrew his appearance and Ernest Lucero entered his appearance-on behalf of NMTU.” MTD & MSJ Memo. ¶40, at 9 (setting.forth this fact); Montoya Aff. ¶ 17, at 3. See Recommendation of the Hearing Officer at 1, executed November 9, 2011, filed March 29, 2013 (Doc. 27-26)(“Hearing Officer’s Recommendation Re: Aragon”). “The hearing was scheduled to begin October 18, 2011.” MTD & MSJ Memo. ¶ 41, at 9 (setting forth this fact); Scott Aff. ¶ 38, at 8.See Montoya Aff. ¶ 18, at 3; Hearing Officer’s Recommendation Re: Aragon at 1. “At 7:30 p.m.,- October 17, 2011, Lucero asked the City to concur in his request to vacate the hearing.” MTD & MSJ Memo. ¶ 42, at 9 (setting forth this fact); Scott Aff. ¶ 39, at 8; Hearing Officer’s Recommendation Re: Aragon at- 1. “The City declined,” and, “[o]n October 18, 2011, Lucero, representatives of the city and the hearing officer appeared as scheduled,” but “Aragon did not.” MTD & MSJ Memo. ¶ 43, at 9 (setting forth these facts); Scott Aff. ¶ 40, at 8. See Montoya Aff. ¶ 19, at 3. “The hearing officer concluded that it was more likely than not that[,] from the facts established after inquiry[,] Aragon was. aware of the scheduling hearing and chose not to appear to lend credence to NMTU’s motion to vacate the hearing.” MTD & MSJ Memo. ¶44, at 9 (setting forth this fact); Scott Aff. ¶ 41, at 8. “On December 19, 2011, Aragon appealed the termination to' the state district court.” MTD & MSJ Memo. ¶ 45, at 9; Montoya Aff. 1K20, at 3. See Docket Sheet in Vanessa Aragon v. City of Albuquerque, No. D-202-CV-2011-12542, dated March 26, 2013, filed March 29, 2013 (Doc. 27-34). “On May 17, 2012, District Court Judge Clay Campbell dismissed the appeal for lack of prosecution.” MTD & MSJ Memo. ¶'46, at 10 (setting forth this fact). See Order Granting Motion to Dismiss for Lack of Prosecution, filed in state court in No. D-202-CV-2011-12542 May 17, 2012, filed in federal court in this case March 29, 2013 (Doc.- 27-35)(“Aragon Appeal Dismissal Order”).

7. The Undisputed Facts: NMTU’s . Claims. ■

“On June 30, 2011, the collective bargaining agreement between the City and the American Federation of State, County and Municipal Employees (hereinafter AFSCME) for representation of Transit bus and van drivers expired.” MTD & MSJ Memo. ¶ 47, at 10' (setting forth this fact); Scott Aff. ¶ 42, at 8; Montoya Aff. ¶ 21, at 3. “On August 1, 2011, the City’s Labor-Management Relations Board (hereinafter the Labor Board) ordered that a representational election” to choose the union that would represent bus and sun van drivers would proceed. MTD & MSJ Memo. ¶ 48, at 10 (setting forth this fact); Scott Aff. ¶ 43, at 8; Montoya Aff. ¶ 22, at 3. “AFSCME appealed the order of the Labor Board to state district court.” MTD & MSJ Memo. ¶49, at 10 (setting forth this fact); Montoya Aff. ¶ 23. at 3. See Docket in Am. Fed. of State, Cnty. & Mun. Emps. v. NM Transp. Union, dated March 27, 2013, filed March 29, 2013 (Doc. 27-36).

“On August 10, 2011, AFSCME filed a prohibited practice complaint (hereinafter PPC) with the Labor Board alleging violations of the City’s Labor-Management Relations Ordinance (hereinafter LMRO) by NMTU.” MTD & MSJ Memo. ¶ 50, at 10 (setting forth this fact); Scott Aff. ¶ 44, at 9; Montoya Aff. ¶ 24, at 3. “On September 14, 2011, a representational election was held pursuant to the Labor Board’s order and NMTU prevailed.” MTD & MSJ Memo. ¶ 51, at 10 (setting forth this fact); Scott Aff. ¶ 45, at 9; Montoya Aff. ¶ 25, at 3. “On October 24, 2011, the Labor Board found that while NMTU had acted inappropriately in soliciting membership during working hours, AFSCME had failed to file the PPC within the time limits established in the LMRO.” MTD & MSJ Memo. ¶ 52, at 10 (setting forth this fact); Scott Aff. ¶ 46, at 9. See Findings & Conclusions, executed October 24, 2011, filed March 29, 2013 (Doc. 27-27). “On May 23, 2012, Judge Nan Nash issued her memorandum opinion and order holding that, if the election the Labor Board ordered was held, the results would be null and void because NMTU did not provide current interest cards, justifying the election.” MTD & MSJ Memo. ¶ 53, at 11 (setting forth this fact). See Memorandum Opinion and Order at 5, filed in state court in CV-2011-8899 March 23, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-37)(“Judge Nash’s MOO”). Judge Nash also .held that,

because the ordinance was not clear on this point, NMTU should be given another opportunity to collect interest cards and, if they can again garner thirty percent, another election should be held. Both the collection of interest cards and the possible election should take place within a reasonable amount of time from this order.

Judge Nash’s MOO at 5.

“The denial of AFSCME’s PPC by the Labor Board was dismissed as moot by the state district court.” MTD & MSJ Memo. ¶ 54, at 11 (setting forth this fact). See Order Dismissing Appeal as Moot and Granting All Motions to Dismiss Without Prejudice at 1, filed in state court in American Federation of State, County and Municipal Employees v. New Mexico Transportation Union, No. D-202-CV-2011-11682 July 9, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-38).

“Neither NMTU nor Lucero filed a PPC before the Labor Board challenging the post-termination hearings of Tapia and Aragon.” MTD & MSJ Memo. ¶ 55, at 11 (setting forth this fact); Scott Aff. ¶ 46, at 9; Montoya Aff. ¶ 26, at 4. “Between the election in September 14, 2011, and the date of invalidation of the election on May 23, 2012, no collective bargaining agreement (hereinafter CBA) was negotiated between NMTU and the City.” MTD & MSJ Memo. ¶ 46, at 11 (setting forth this fact); Scott Aff. ¶ 48; at 9.

PROCEDURAL BACKGROUND

The Court will discuss the procedural background in two parts. First, the Court will discuss the Plaintiffs’ Complaint and the Defendants’ removal to federal court. Second, the Court will discuss the MTD & MSJ.

1. The Plaintiffs File their Complaint; the Defendants Remove to Federal Court.

The Plaintiffs filed their Complaint in state court, stating that they “bring their claims under 42 U.S.C.Sec.l983[sie], and the laws and Constitutions of the United States and the State of New Mexico.” Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under “Count 1 Due Process and Equal Protection,” the Plaintiffs assert that Tapia and Aragon, “[a]s classified, full-time, City employees ... had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination.” Complaint ¶ 57, at 12. “Similarly,” the Plaintiffs allege, “NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and proeedurally correct.” Complaint ¶ 58, at 12. According to the Plaintiffs, the “Defendants denied the employees’ rights and hearings and dismissed their cases on pretextual grounds,” and, thereby, “the City Defendants have violated Plaintiffs’ rights to due process and equal protection of the laws.” Complaint ¶¶ 59-60, at 13.

Under “Count 2 Breach of Employment Contracts,” the Plaintiffs allege that, “[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements.” Complaint ¶ 62, at 13. The Plaintiffs contend that they “were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause.” Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants “have violated their contractual obligations and are liable for damages to be determined at trial.” Complaint ¶ 64, at 13.

Under “Count 3 Violation of Right to Privacy,” the Plaintiffs contend that “Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia’s medical records from Dr. Carmen Wagner-Mogle,” and that Dr. “Wagner-Mogle sent Ms. Tapia’s medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia.” Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that “Dr. Wagner-Mogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions,” but “never contacted or attempted to contact Ms. Tapia or her attorney.” Complaint ¶ 68, at 14. The Plaintiffs state that “[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia’s right to privacy in her medical records.” Complaint ¶ 69, at 14. The Plaintiffs contend that the “Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work.” Complaint ¶ 70, at 14. The Plaintiffs assert that the “Defendants are liable for their violations of Ms. Tapia’s right to privacy.” Complaint ¶ 71, at 14.

Under “Count 4 Negligence,” the Plaintiffs assert that, “[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment.” Complaint ¶ 73, at 14. “In addition,” the Plaintiffs state, “Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department.” Complaint ¶ 74, at 15. The Plaintiffs assert that “Tapia has given notice of her tort claim to the City of Albuquerque.” Complaint ¶ 75, at 15. The Plaintiffs maintain that “[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial.” Complaint ¶ 76, at 15.

Under “Count 5 Conspiracy to Deny Constitutional Rights,” the Plaintiffs assert that “[t]he City Defendants, aware of Plaintiffs’ rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions.” Complaint If 78, at 15. “In particular,” according to the Plaintiffs, “Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs’ due process and equal protection rights.” Complaint 79, at 15.

Under “Count 6 Unfair Labor Practices,” the Plaintiffs state that, “[l]ong after the submission of NMTU’s majority petition for representation of the Transit drivers’ bargaining unit in March, 2011, and the expiration of the Collective Bargaining Agreement on June 30, 2011, the City and Transit Department continued recognizing AFSCME as the exclusive bargaining and grievance representative.” Complaint ¶ 81, at 15-16. According to the Plaintiffs,

[t]he City and its Labor Board have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU’s prohibited practice complaints without hearings, insisted on an election when none was needed, and then did nothing to support or enable NMTU to represent employees after, it prevailed in the election.

Complaint ¶ 82, at 16. The Plaintiffs maintain that “[t]he City’s misconduct and the Hearing Officers’ and Personnel Board’s lack of concern over — and engagement in — collusive tactics in this case, including biased hearing officers eager to dismiss rather than hear employee cases, and unethical and illegal conduct, clearly demonstrated the City’s policy and practice with respect to the rights of its employees and the obligations of City management towards those employees.” Complaint ¶ 83, at 16. The Plaintiffs assert that they “are entitled to compensatory, declaratory, and injunctive relief for the City’s failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees’ rights and grievances.” Complaint ¶ 84, at 16.

The Plaintiffs ask for the following forms of relief:

A. Declaratory, injunctive and compensatory relief for denial of fair hearings and the rights to due process and equal protection of law;

B. Damages for breaches of contract;

C. Declaratory, injunctive, and compensatory relief and exemplary and punitive damages for violation of Jessica Tapia’s right to privacy.

D. Damages for negligence with respect to Ms. Tapia’s injuries;

E. Declaratory, injunctive, and compensatory relief for unfair labor practices and collusive misconduct between and among City officials and attorneys, the Personnel Board and its Personnel Hearing Officers and the Labor Board.

F. Declaratory and injunctive relief requiring the City to hire or appoint a person to oversee, administer, and protect the Merit System and ensure a fair, neutral and effective personnel hearing process for City employees.

G. Costs and attorneys’ fees; and

H. Such other and further relief as the Court deems just and proper.

Complaint ¶¶ A-H, at 16-17.

On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.

On March 8, 2013, the City Defendants filed their .Answer to Complaint for Violation of. Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 (“City Defendants’ Answer”). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs’ claims are meritless and that they are abusing the legal process, see City Defendants’ Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants’ Answer ¶¶ 57-64, at 18-19.

On March 2013, Forney filed her Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices by Defendant Paula Forney and Counterclaim. See Doc. 15 (“Forney’s Answer”). Forney raises counterclaims for malicious abuse of process and prima facie tort, largely for the same reasons that the City Defendants give. See Forney’s Answer ¶¶ 1-13, at 19-21.

2.The MTD & MSJ.

The City Defendants move the Court to dismiss the Complaint or, in the alternative, to grant summary judgment. See MTD & MSJ Memo, at 1. The City Defendants assert that:

3. Count 1 should be dismissed because plaintiffs were given all process to which they were entitled.

4. Count 2, Breach [sic] of contract should be dismissed because defendants did not breach any contract with plaintiffs.

5. Count 3, right to privacy, should be dismissed because there are no allegations or facts to support that plaintiffs’ right to privacy was breached.

6. Count 4, negligence, should be dismissed because there is no waiver of immunity under the [New Mexico] Tort Claims Act[, NMSA 1978, § 41-1 to -30 (“NMTCA”) ].

7. Count 4, negligence, should also be dismissed because the worker’s compensation act provides the exclusive remedy for on the job injuries.

8. Count 8, conspiracy, should be dismissed because there are no allegations or facts to support the existence of a conspiracy.

9. Count 6, unfair labor practices, should be dismissed because ... the district court decided that the election violated the LMRO.

MTD & MSJ. ¶¶ 3-9, at 1-2. The City Defendants assert that: (i) the individual defendants are entitled to qualified immunity, see MTD & MSJ ¶¶ 10-11, at 2; and (ii) if the individual defendants are entitled to qualified immunity, the City of Albuquerque cannot be held liable for constitutional violations, see MTD & MSJ ¶ 12, at 2.

After referring to the familiar standards for judicial review of motions to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure and motions for summary judgment under rule 56 of the Federal Rules of Civil Procedure, see MTD & MSJ Memo, at 11-13, the City Defendants first argue that the Court should dismiss Count 1 — that is, Tapia’s and Aragon’s due-process claim. See MTD & MSJ Memo, at 13. The City Defendants assert that “[t]he only allegations relevant to due process on behalf of the individual employees is their allegation that they had a right to a fair hearing before being deprived of their employment,” and that “[t]he undisputed material facts demonstrate that Aragon and Tapia had available to them full and fair hearings.” MTD & MSJ Memo, at 13. The City Defendants point out that Tapia did not “comply with the discovery ordered by the hearing officer, resulting in the dismissal of her appeal.” MTD & MSJ Memo, at 13. With respect to Aragon, the City Defendants point out that she “knowingly failed to appear for the hearing.” MTD & MSJ Memo, at 13. They state that her representative asked to continue the hearing the night before it was scheduled — and that it had been scheduled for nearly two months before it happened. See MTD & MSJ Memo, at 13. According to them, Aragon knew about the hearing schedule and did not appear for the hearing, which led to the hearing officer concluding that Aragon abandoned her appeal. See MTD & MSJ Memo, at 13-14. Moreover, they state that Tapia’s and Aragon’s appeals were both dismissed for failure to prosecute. See MTD & MSJ Memo, at 14.

The City Defendants point to the Court’s decision in Tapia v. Beffort, No. CIV 02-0513 JB/ACT, 2003 WL 24130246 (D.N.M. Nov. 26, 2003) (Browning, J.), where

the Court addressed the adequacy of the state remedy which allowed for “(i) a de novo evidentiary hearing before a hearing officer appointed by the Personnel Board; (ii) the rights, among others, to counsel, to discovery, to present evidence, to compel the attendance of witnesses and to cross examine witnesses; (iii) a recommendation from the hearing officer to the Personnel Board; and (iv) a final decision by the Personnel Board whether, based on the evidence, GSD had terminated Tapia for ‘just cause.’ ” Id. at *4. Plaintiffs, here were provided those same procedures. The Court in Tapia, [sic] concluded:

Tapia cannot pursue a due process claim in this Court. See, e.g., Parratt v. Taylor, 451 U.S. [527] at 544[, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)]; Pitts v. Bd. of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d [555, 557 (10th Cir.1989) ]; Bums v. Harris Co. Bail Bond Bd., 139 F.3d 513, 519 (5th Cir.1998) (“[A] plaintiff cannot argue that her due process rights have been violated when she has failed to utilize the state remedies available to her.”); Copple v. City of Concordia, Kan., 814 F.Supp. 1529, 1539 (D.Kan.1993) (“By knowingly failing to take advantage of the post-termination procedures available to him, [the plaintiff] has waived his right to challenge them in this action.”)(citing Pitts v. Board of Education, 869 F.2d at 557). Thus, the Court finds that, because an adequate state administrative remedy existed and Tapia failed to avail himself of that remedy, Tapia cannot now pursue a due process claim in federal court.

MTD & MSJ Memo, at 14 (quoting Tapia v. Beffort, 2003 WL 24130246, at *9). The City Defendants also point to Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), in which the Supreme Court of the United States held that

an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy[.]

MTD & MSJ Memo, at 14 (quoting 468 U.S. at 533, 104 S.Ct. 3194). The City Defendants argue that, because the Plaintiffs did not perfect their appeals and allowed them to be dismissed for failure to prosecute, they have waived their due process claim.' See MTD & MSJ Memo, at 15. Moreover, they state that the Complaint does not argue that the Plaintiffs lacked the right to that appellate process, but “only that the process was in some undefined manner flawed.... If plaintiffs would háve followed through with their appeals, they could have raised all the arguments stated in their complaint in state court.” MTD & MSJ Memo, at 15. The City Defendants acknowledge that the Plaintiffs filed the Complaint in state court before the Defendants removed the case to federal court, but state that “[s]imply filing the claim in state court does not satisfy the exhaustion requirement for purposes of a due process claim.” MTD & MSJ Memo, at 15 n. 2.

The City Defendants also assert that no authority supports the notion that NMTU has “a due process right and an obligation to represent employees in the bargaining unit at post-termination hearings,” and that, even if such authority existed, “it is undisputed that NMTU failed to represent its members” in two distinct ways: (i) it did not respond to discovery requests on Tapia’s behalf; (ii) it did not have Aragon appear for her hearing, which made ‘more likely than not that [Aragon] knew about the hearing and did not appear to support the request for a continuance.’ MTD & MSJ Memo, at 15 (quoting Recommendation of the Hearing Officer ¶ 12). According to the City Defendants, “[n]either NMTU nor Lucero filed a PPC before the Labor Board challenging the City’s failure to recognize NMTU as the collective bargaining agent.” MTD & MSJ Memo, at 15. The City Defendants point out that the LMRO establishes the Labor Board, and quote the Supreme Court of New Mexico’s explanation of the Labor Board:

The Merit System Ordinance provides that employees with complaints regarding “the interpretation or application of a collective bargaining agreement may not utilize the grievance resolution procedures of this Ordinance. All such claims shall be properly referred to the Labor-Management Relations Board.” Id. Sec. 2-9-25(B). The [Labor Board], established pursuant to the Labor-Management Relations Ordinance, is empowered to, inter alia, determine whether the City or any employee collective bargaining organization has violated the provisions of any written agreement in force. If it determines that either has committed such a prohibited act the [Labor Board] is required to state its findings of fact and its conclusion in the form of an order. Albuquerque, N.M., Rev. Ordinances Art. II, Secs. 2-2-9 to - 10 (1977).

MTD & MSJ Memo, at 16. The City Defendants point out that “[i]t is undisputed that none of the plaintiffs filed a PPC before the Labor Board, thus depriving the Labor Board of any authority to address the terminations of plaintiffs or to grant them and the union ‘due process.’ ” MTD & MSJ Memo, at 16.

The City Defendants also cite the Court’s decision in Abreu v. N.M. Children, Youth & Families Department, 797 F.Supp.2d 1199 (D.N.M.2011) (Browning, J.), in which the Court pointed out that some source of law defines property interests for due-process purposes; the City Defendants point out that the Complaint does not explain the source of NMTU’s and Lucero’s asserted property right to represent employees. See MTD & MSJ Memo, at 16-17. They note that,

[presumably, because the complaint speaks in terms of NMTU not being recognized by the City as the collective bargaining representative, the source of such property interest may be the CBA. From the undisputed statement of facts above, however, there was no CBA negotiated between NMTU and the City, the representational election was invalidated, thus there was no source of a protected property interest.

MTD & MSJ Memo, at 17.

Further, the City Defendants argue that, even if they owed due process to NMTU and Lucero,

there are no allegations that the post-termination hearings were fundamentally unfair. The complaint alleges that the City somehow violated NMTU’s rights by not recognizing NMTU as the bargaining representative. This allegation ignores the fact that the election was set aside for NMTU’s violation of the election process. Further, Mr. Livingston pointedly withdrew from his representation of Tapia and Aragon during the post-termination process. He withdrew his representation of Tapia during the course of her being compelled to respond to the City’s discovery. With regard to Aragon, he withdrew his appearance twelve days before her scheduled hearing. If NMTU was concerned about Lucero being “untrained, inexperienced, and without any office, staff or operating funds,” [Cjomplaint, ¶ 14, it should have continued to retain Mr. Livingston and not permitted him to withdraw his representation. When the terminations were upheld by the Personnel Board, Livingston filed an appeal to state court but then those appeals were dismissed for his failure to prosecute. Neither the City nor its