May 7, 2019- Thomas Rabatin v. Governing Board Gordon Bernell Charter School, No. A-1-CA-35708

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 THOMAS RABATIN,
3 	Plaintiff-Appellant,
4 v. 	No. A-l-CA-35708
5 	GOVERNING BOARD GORDON
6 BERNELL CHARTER SCHOOL,
7 	Defendant-Appellee. 	.
8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
9 Carl J. _Butkus, District Judge
10 Gilpin Law Firm, LLC
11 	Donald G. Gilpin
12 Christoperh ;t?. Machin
13 	Albuquerque, NM
14 for Appellant .
15 	German Burnette & Associates, LLC
16 Jason M. Burnette
17 Elizabeth L. German
18 	Albuquerque, NM .
19 for Appellee
20 	MEMORANDUM OPINION
21 	BOGARDUS, Judge.
22 	{t} 	Plaintiff Thomas Rabatin appeals from the district court's order granting
23 	summary judgment in favor of Defendant Governing Board Gordon Bernell Charter
Court of Appeals of New Mexico
Filed 5/7/2019 10:36 AM
Mark Reynolds

1 School (the Governing Board) and dismissing his claim under the Whistleblower
2 Protection Act (WPA), NMSA 1978, Sections 10-16C-1 to -6 (2010). We affirm.
3 BACKGROUND
4 	{2} 	Plaintiff, a math teacher at Gordon Bernell Charter School (GBCS), was
5 assigned to the school's Metropolitan Detention Center (MDC) campus. After
6 security issues arose at that campus, MDC began an investigation and GBCS held a
7 meeting.to address those issues. Upset with how the meeting was handled, Plaintiff
8 emailed Greta Roskom, the Director of GBCS, and asked to be placed on the agenda
9 of the next meeting of the Governing Board to make a presentation. Plaintiff called
10 Roskom after sending the email and told her that he "was going to tell the
°I 1 [G]overning [Board] the things that [he knew]."
12 {3} 	At the conclusion of its investigation, MDC revoked Plaintiffs security
13 	clearance. As a result, GBCS initiated the discharge process provided in the School
14 Personnel Act (SPA), NMSA 1978, Sections 22-lOA-1 to -39 (1967, as amended
15 	through 2018), by serving Plaintiff with a notice of intent to discharge for violations
16 	of school policy. See § 22-10A-27(A). Plaintiff exercised his right to a discharge
17 hearing before the Governing Board, see § 22-10A-27(B), which the Governing
18 Board held as required. See§ 22-10A-27(C). Following the hearing, the Governing
19 Board determined that there was just cause to discharge Plaintiff. See § 22-lOA-
2

1 27(A),(J). 	Plaintiff was 	advised he 	had a right to 	appeal the 	decision to 	an
2 independent arbitrator. See§ 22-lOA-28.
3 	{4} 	Plaintiff did not appeal the Governing Board's decision. Instead, he filed this
4 action under the WPA in district court. The Governing Board filed two separate
5 motions for summary judgment: one based on collateral estoppel and Plaintiffs
6 failure to exhaust his administrative remedies under the SPA; the other arguing that
7 undisputed material facts showed that Plaintiffs claim should be dismissed as a
8 matter of law because Plaintiff did not make any "protected statements" as required
9 by the WPA. The district court granted the Governing Board's second motion for
10 summary judgment. Because the district court determined th~ second motion was
11 	dispositive, it did not decide the first motion.
12 DISCUSSION
13 	I.
14 	{5}
This Court Has Subject Matter Jurisdiction
We asked the parties to brief the question of whether Plaintiff was required to
15 	exhaust the remedies provided under the SPA because it bears on the jurisdiction of
16 the district court and this Court. See Mitchell-Carr v. McLendon, 1999-NMSC-025,
17 ,r 20, 127 N.M. 282,980 P.2d 65 (stating a failure to exhaust administrative remedies
18 may deprive a district court of subject matter jurisdiction); Madrid v. Vil!. of Chama,
19 2012-NMCA-071, ,r 5,283 P.3d 871 ("[A]ppeals from courts that lack subject matter
20 jurisdiction will confer no jurisdiction on this Court."); Armijo v. Save 	'N Gain,
3

1 1989-NMCA-014,, 4, 108 N.M. 281, 771 P.2d 989 ("A jurisdictional defect may
2 not be waived and may be raised at any stage of the proceedings, even sua sponte by
3 the appellate court."). "Under the exhaustion of administrative remedies doctrine,
4 where relief is available from an administrative agency, the plaintiff is ordinarily
5 required to pursue that avenue of redress before proceeding to the courts; and until
6 that recourse is exhausted, suit is premature and must be dismissed." Lucero v. Bd.
7 of Regents 	of Univ. 	of N.M, 	2012-NMCA-055, 	, 9, 	278 P.3d 	1043 	(internal
8 quotation marks and citation omitted).
9 	{6} 	"[T]he exhaustion doctrine exists because the interests of justice are best
10 served by permitting the agency to resolve 	factual 	issues within its peculiar
11 	expertise." Smith v. City of Santa Fe, 2007-NMSC-055, , 	26, 142 N.M. 786, 171
12 P.3d 300 (internal quotation marks and citation omitted). "Jurisdiction of the matters
13 	in dispute does not lie in the courts until the statutorily required administrative
14 procedures are fully complied with." In re Application of Angel Fire Corp.,· 1981-
15 	NMSC-095, , 	5, 96 N.M. 651, 634 P.2d 202. When a plaintiff fails to exhaust
16 administrative remedies, thus depriving a district court of subject matter jurisdiction,
17 dismissal of the complaint is appropriate. Luboyeski v. Hill, 1994-NMSC-032,, 7,
18 	117 N.M. 380, 872 P.2d 353; Jaramillo v. J.C. Penney Co., 1985-NMCA-002,, 4,
19 	102 N.M. 272, 694 P.2d 528.
4

1 {7} 	Plaintiff contends that he is not required to exhaust administrative remedies
2 under the SPA because his WP A claim is independent from the SP A. He relies on
3 the absence of exhaustion language in the WP A and notes that our courts have
4 allowed parties to pursue WP A claims while also seeking administrative remedies
5 under other statutes.
6 {8} 	The Governing Board frames the issue as one of exclusivity of the SPA's
7 remedies. It argues that because the SP A requires a specific administrative procedure
8 to 	discharge 	a school 	employee, 	see 	§§ 22-lOA-27, 	Plaintiff "cannot initiate
9 proceedings under a comprehensive administrative scheme and, when dissatisfied
10 with the results, abandon the appellate procedures under that scheme in favor of an
11 	action in district court based on the same facts. seeking the same remedies." See
12 Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 124, 147 N.M. 523, 226 P.3d
13 	622 (To determine whether the Legislature intended the claim filing provisions of
14 an act to be exclusive, courts are to evaluate "the comprehensiveness 	of the
15 	administrative scheme, the availability of judicial review, and the completeness of
16 the remedies afforded." (internal quotation marks and citation omitted)). According
17 to the Governing Board, subject matter jurisdiction to_ consider Plaintiffs WP A
18 claim 	is 	lacking 	because the 	comprehensive 	nature 	of the 	SPA's 	discharge
19 procedures show that the 	SP A provides Plaintiffs exclusive remedies for his
20 discharge.
5

1 A. 	Standard of Review
2 	{9} 	To resolve this issue, we must construe both the SPA and the WPA, presenting
3 a question of law subject to de novo review. See Cooper v. Chevron U.S.A., Inc.,
4 2002-NMSC-020, ,r 16, 132 N.M. 382, 49 P.3d 61 ("The meaning of language used
5 in a statute is a question of law that we review de novo."). "[O]ur guiding principle"
6 in interpreting these statutes "is to determine and give effect to legislative intent."
7 Baker v. Hedstrom, 2013-NMSC-043, ,r 11,309 P.3d 1047 (internal quotation marks
.8 	and citation omitted). J:o do so, we first apply the statute's plain language, but "if an
9 adherence to the literal use of the words would lead to injustice, absurdity[,] or
10 contradiction, we will construe the statute according to its obvious spirit or reason."
11 	Id. ( alteration, internal quotation marks, and citation omitted). "We may consider
12 the structure, context, history, and background of the statute, as well as the likely
13 	policy implications of various constructions." Baker v. Hedstrom, 2012-NMCA-.
14 073, ,r 12, 204 P.3d 400 (alteration, internal quotation marks, and citation omitted);
15 	see generally the Uniform Statute and Rule Construction Act, NMSA 1978, §§ 12-
16 2A-1 to -20 (1997).
17 B.
18
19 {10}
Plaintiff is·Entitled to Bring His WPA Claim Before Exhaasting the SPA
Remedies
The SPA requires that the local school board or governing authority (the
20 Board) must have just cause for discharging a school employee and follow the SP A's
21 	discharge procedures. See § 22-lOA-27. To begin the discharge procedure, the
6

1 superintendent must serve "written notice of his intent to recommend discharge on
2 the certified school employee" that includes "the cause for his recommendation" and
3 an advisement of the employee's "right to a discharge hearing before the [Board]." 1
4 	Section 22-1 OA-27(A). The employee must then provide written notice that he
5 intends to exercise his right to a hearing. Section 22-10A-27(B). After receiving
6 written notice, the Board schedules, notices, and holds the discharge hearing. Section
7 22-10A-27(C). At the hearing, the superintendent has the burden of proving, by a
8 preponderance of the evidence, that there was just cause for the discharge at the time
9 	of the discharge notice. Section 22-10A-27(G). The Board then decides whether the
10 superintendent met that burden. Section 22-1 OA-27(J). Aggrieved employees may
11 	appeal the decision, first to an independent arbitrator and then to district court.
12 Section 22-lOA-28. The discharge procedures contained in the SPA embody the due
13 	process rights of school employees, who have a protected property right to notice
14 and a hearing prior to discharge. Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell,
15 	1994-NMSC-096, ~ 39, 118 N.M. 470, 882 P.2d 511; West v. San Jon Bd. of Educ.,
16 2003-NMCA-130, ~ 11, 134 N.M. 498, 79 P.3d 842. If the employee is successful
17 in either appeal, he or she may be awarded reinstatement and back pay. Section 22-
18 	1OA-29(B).
1The parties do not dispute that Plaintiff was a school employee entitled to the
discharge procedures contained in the SPA, nor do they challenge Roskom's status
as "superintendent" under the SP A.
7

1 {11} 	The purpose of the SPA is "to promote a sound public policy of retaining in
2 the public school system teachers who have become increasingly valuable by reason
3 	of their experience." Atencio v. Bd. of Educ., 1982-NMSC-140,, 9, 99 N.M. 168,
4 	655 P.2d 1012 (concluding that this is the purpose of the Certified School Personnel
5 Act, renamed in 1991 as the SPA). Valuable teachers should be retained in their
6 positions as long as they are performing their duties in a satisfactory manner. Id. The
7 just cause requirement for discharge furthers this purpose. See, e.g., Aguilera v. Bd.
8 of Educ., 2006-NMSC-015, ,, 16-22, 139 N.M. 330, 132 P.3d 587 (discussing the
9 history of the SPA'sjust cause requirement).
10 	V2} 	The WP A provides a cause of action for public employees who suffered
11 	retaliation for communicating information about what they believe in good faith may
12 constitute unlawful or improper actions by their public employers. In relevant part,
13 	Section 10-16C-3 of the WPA provides:
14
15
16
17
18
A public employer shall not take any retaliatory action against a public
employee because the public employee ... communicates to the public
employer ... information about an action or a failure to act that the
public employee believes in good faith constitutes an unlawful or
improper act[. ]2
19 The WP A defines "retaliatory action" and "unlawful or improper act" as follows:
20
21
22
D. 	'retaliatory action' means taking any discriminatory or adverse
employment action against a public employee in the terms and
conditions of public employment; and
2The parties do not dispute their respective statuses as public employer and
public employee under the WP A.
8

1
2
3
4
5
6
7
8
E. 	· 'unlawful or improper act' means a practice, procedure, action or
failure to act on the part of a public employer that:
(1) 	violates a federal law, a federal regulation, a state law, a
state administrative rule or a law of any political subdivision of the
· state;
(2) 	constitutes malfeasance in public office; or
(3) 	constitutes gross mismanagement, a waste of funds, or
abuse of authority or a substantial and specific danger to the public.
9 	Section 10-16C-2(D), (E).
10 {13} 	A public employee alleging a violation of the WPA may bring an action "in
11 	any court of competent jurisdiction." Section 10-16C-4(A). Public. employers who
12 violate the WP A are liable for
13
14
15
16
17
18
actual damages, reinstatement with the same seniority status that the
employee would have had but for the violation, two times the amount
of back pay with interest on the back pay and compensation for any
special damage sustained as a result of the violation. In addition, an
employer shall be required to pay the litigation costs and reasonable
attorney fees of the employee.
19 Id. The outlined remedies "are not exclusive and shall be in addition to any other
20 remedies provided for in any other law or available under common law." Section
21 	10-16C-4(C). The WPA was created "to encourage employees to report illegal
22 practices without fear of reprisal by their employers." Flores v. Herrera, 2016-
23 	NMSC-033, 19, 384 P.3d 1070 (internal quotation marks and citation omitted).
24 	{14} 	Unlike the SPA, the WPA does not delegate decision-making authority to an
25 	administrative agency and does not provide a process for appealing administrative
9

1 decisions. Hence, the Governing Board's contention that Plaintiff must exhaust his
2 administrative remedies before pursuing his WPA claim is not supported by the plain
3 language of the WPA, which contains no exhaustion requirement. See Janet v.
4 Marshall, 2013-NMCA-037, ~ 9, 296 P.3d 1253 (when determining, legislative
5 intent we look first to the plain language of the statute and give words their ordinary
6 .meaning, unless the Legislature indicates a different meaning was intended):
7 {15} 	We note that the discharge procedure contained in the SPA was enacted prior
8 to the enactment of the WPA. Compare§§ 22-lOA-27,-28, with§§ 10-16C-1 to -6.
9 	If the Legislature intended that SP A's remedies must be exhausted in all WPA cases
10 involving a public employee, it could have said so. See Janet, 2013-NMCA-037,.
11 	~ 20 (relying on the "principle that the Legislature is fully aware of both statutory
12 and common law when crafting statutes"). The Legislature did not do so, and we
13 	will not read such a requirement into the WPA. See State ex rel. Barela v. NM State
14 Bd. 	of Educ., 	1969-NMSC-038, ~ 7, 80 N.M. 220, 453 P.2d 583 ("We are not
15 	permitted to read into a statute language which is not there, particularly if it makes
16 sense as written.").
17 {16} 	The Governing Board does not acknowledge that the WPA contains no
18 	exhaustion requirement, but instead urges us to rule that an exhaustion requirement
19 exists nonetheless based on SPA exclusivity. The Governing Board's argument
10

1 relies heavily on Barreras v. New Mexico Corrections Department, 2003-NMCA-·
2 027, 133 N.M. 313, 62 P.3d 770. We are not persuaded.
3 	{17} 	In Barreras, after being discharged by their public employer, state employees
4 filed · a complaint in the district court alleging breach of implied employment
5 contract, which was predicated on rights afforded· state employees in the State
6 Personnel Act, its related rules, regulations, and personnel policies. Id. 'if'if 1, 6. The
7 question presented was not "whether the State Personnel Act and attendant. rules,
8 regulations, and policies create enforceable rights in state employees" but "whether
9 an aggrieved employee who wishes to enforce those rights may proceed directly to
10 district court on a theory of implied contract based on those same statutory and
11 	administrative rights, and bypass the administrative procedure and remedies set forth
12 in that same statute." Id. 'if 7. This Court held that "when an employee's contractual
13 	claim arises from the State Personnel Act, as well as attendant rules, regulations, and
14 agency personnel policies, the employee's remedies are limited to those set forth in
15 	the State Personnel Act[.]" Id. 'if 1; see id. 'if 21. In reaching this conclusion, we noted
16 that review of any adverse employment action under the State Personnel Act "shall .
17 tum on the question of 'just cause,' "and that this was "precisely what [the p ]laintiffs
18 	allege[ d] in this lawsuit-that [employer] terminated them without 'just cause.' "Id.
19 	'if 12. Plaintiffs WPA claim does not seek to enforce rights created by the SPA but
20 rather the distinct rights afforded by the WPA. See WPA Section 10-16C-3 ("A
11

1 public employer shall not take any retaliatory action against a public employee
2 because the public employee 	. . . communicates to .the public employer 	...
3 information about an action or a failure to act that the public employee believes in
4 good faith constitutes an unlawful or improper act[.]")
5 {18} 	. The Governing Board argues that the "core remedies" provided by the SPA
6 and the WP A (reinstatement and back pay) are the same, again relying on Barreras.
7 In that case, we stated that the differences in remedies available to a plaintiff under
8 the State Personn~l Act and in a breach-of-employment-contract action were not
9 significant because the "State Personnel Act mirrors the core of what is ordinarily
10 available as compensatory damages in a breach-of:-employment-contract lawsuit."
11 	Id. ,r 15. This aspect of Barreras also is inapposite. The SP A allows for reinstatement
12 and back pay, see § 22-10A-29(B), but the WPA's remedies include actual and
13 	special damages, damages that are punitive in nature, and costs and attorneys' fees,
14 see§ 10-16C-4(A) (providing non-exclusive remedies of two-times back pay plus
15 	interest, compensation for actual and special damages, and litigation costs and
16 reasonable attorney fees for prevailing employees). Accordingly, we reject the
17 Governing Board's "core remedies" argument as requiring the conclusion that the
18 	SPA provides exclusive remedies for Plaintiffs WP A claim.
12

1 {19} 	We conclude that Plaintiff is entitled to bring his WPA claim without first
2 exhausting the SP A's administrative remedies; therefore, this Court has subject
3 matter jurisdiction over this appeal.
4 II. 	The District Court Correctly Entered Summary Judgment
5 A. 	Standard of Review
6 	{20} 	"Summary judgment is reviewed on appeal de novo." Romero v. 	Phillip
7 Morris Inc., 2010-NMSC-035, ,-f 7, 148 N.M. 713, 242 P.3d 280 (internal quotation
8 marks and citation omitted).
9
10
11
12
13
Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.
Where reasonable minds will not differ as to an issue of material fact,
the 	court may properly grant summary judgment. 	All reasonable
inferences are construed in favor.of the non-moving party.
14 Id. (internal quotation marks and citation omitted). "[S]ummary judgment may be
15 	proper ~hen the moving party has met its initial burden of establishing a prima facie
16 case for summary judgment." Id. ,-r 10; see also Goodman v. Brock, 1972-NMSC-
17 	043, ,-f 8, 83 N:M. 789, 498 P.2d 676 ("By a prima facie showing is meant such
18 	evidence as· sufficient in law to raise a presumption of fact or establish the fact in
19 question unless rebutted."). Once the movant has made a prima facie showing, the
· 20 .non-movant must "demonstrate the existence of specific evidentiary facts which
21 	would require trial on the merits." Roth v. Thompson, 1992-NMSC-Ol l, ,-r 17, 113
22 N.M. 331, 825 P.2d 1241. "A party may not simply argue that such [evidentiary]
13

'
1 facts might exist, nor may it rest upon the allegations of the complaint." Dow v.
2 Chi/iii Coop. Ass 'n, 1986-NMSC-084, ,-r 13, 105 N.M. 52, 728 P.2d 462. Rather, the
3 non-movant "must adduce evidence to justify a trial on the issues. Such evidence
4 adduced must result in reasonable inferences." Romero, 2010-NMSC-035, ,-r 10
5 (internal quotation marks and citation omitted).
6 B. 	Plaintiff Failed to Establish the Existence of a Genuine Issue of Material
7 	Fact
8 	{21} 	The 	WPA 	prohibits 	public 	employers 	from 	retaliating 	against 	public
9 employees for "communicat[ing] to the public employer ... information about an
10 action or a failure to act that the public employee believes in good faith constitutes
11 	an unlawful or improper act[.]" Section 10-16C-3. Under the WPA, "unlawful or
12 improper act" is defined, in relevant part, as "a practice, procedure, action or failure
13 	to act on the part of the public employer that ... violates a federal law, a federal
14 regulation, a state law, a state administrative rule or a law of any political subdivision
15 	of the 	state[.]" 	Section 10-16C-2(E)(l). · The district court concluded that the
16 Governing Board was entitled to judgment as a matter of law because Plaintiffs
17 communications failed to satisfy the standard set forth in Section 1O- l 6C-3. We
18 	agree.
19 	{22} 	After becoming upset with how a security-violations meeting was handled,
20 Plaintiff emailed Roskom and asked to be placed on the agenda of the next meeting
21 	of the Governing Board to make a presentation. After sending the email, Plaintiff
14

1 called Roskom and told her that he "was going to tell the [Governing Board] the
2 things that [he knew]." Plaintiff admits that this was the extent of their telephone
3 conversation. These material facts are not in dispute.
4 	{23} 	Plaintiffs argument appears to be that Roskom had knowledge of his previous
5 allegations of illegal activity and therefore knew that Plaintiff was going to be
6 reporting that illegal activity when he asked to make a presentation at the next
7 meeting of the Governing Board and made the follow-up phone call. Plaintiff
8 contends 	that 	this 	satisfies 	Section 	10-16C-3 's 	requirement that the 	"public
9 employee ... communicates to the public employer ... information about an action
10 or a failure to act that ~he public employee believes in good faith constitutes an
11 	unlawful or improper act." We are not persuaded.
12 	{24} 	Plaintiffs statements in his email and follow-up phone call failed to convey
13 	any information regarding any "practice, procedure, action or failure to act" or any
14 "unlawful or improper act" by GBCS. To the extent that Plaintiff contends that
15 	Roskom' s knowledge of his previous allegations of improprieties taken together
16 with Plaintiffs cryptic comments via email and phone are sufficient to satisfy
17 Section 10-16C-3 or to create a genuine dispute of material fact requiring trial on the
18 point, we disagree. Plaintiffs contentions about what Roskom purportedly knew is
19 speculatio1;1, which cannot be considered on summary judgment. See, e.g., Pavlos v.
20 Albuquerque Nat'! Bank, 	1971-NMCA-096, ,-r 24, 82 N.M. 759, 487 P.2d 187
15

1 (stating that speculation does not support an inference sufficient to raise a fact issue
2 for the jury). Nor has Plaintiff presented evidence sufficient to support a reasonable
3 inference as to what Plaintiff planned to tell the Governing Board at its next'
4 meeting. 3 "An inferenc~ is more than a supposition or conjecture. It is a logical
5 deduction from facts which are proven, and guess work is not a substitute therefor."
6 Bowman v. Inc. Cty. ofLos Alamos, 1985-NMCA-040, ,-r 9, 102 N.M. 660,699 P.2d
7 	133 (internal quotation marks and citation omitted); see also Romero, 2010:-NMSC-
8 035, ,-r 10 ("When disputed facts do not support reasonable inferences, they cannot
9 serve as a basis for denying summary judgment."); Samora v. Bradford, 	1970-
10 NMCA-004, ,-r 6, 81 N.M. 205, 465 P.2d 88 (stating a reasonable inference is "a
11 	conclusion arrived at by a process of reasoning" which is "a rational and logical
12 deduction from facts admitted or established by the evidence").
13 	{25} 	Plaintiff failed to establish any genuine issue of material fact in dispute, and
14 the district court properly entered summary judgment in favor of the Governing
15 	Board.
3Plaintiff also contends that an employer should not be able to avoid liability
under the WPA by terminating an employee after the employee announces his or her
intention to report illegal acts but before the employee makes the report. Assuming,
without deciding, that Plaintiffs contention is correct, the facts of this case do not
fit such a scenario because Plaintiff did not inform Roskom of what he planned to
share at the Governing Board meeting, nor did he announce an intention to report
illegal acts at GBCS. Therefore, we do not address this argument further.
16

1 CONCLUSION
2 	{26} 	For the reasons set forth above, we affirm the district court.
3
4
5 WECONCUR:
8~~~·9 LI~ANZl,Judge
TINA BOGARDUS, Judge
17