February 07, 2012 – Carolyn Mascarenas v. City of Albuquerque and Mike Torres, Parking Division Director, No. 30,123

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	February 7, 2012
NO. 30,123
CAROLYN MASCAREÑAS,
Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE and
MIKE TORRES, Parking Division Director,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Theresa M. Baca, District Judge
Paul S. Livingston
Placitas, NM
for Appellant
French & Associates, P.C.
Paula I. Forney
Stephen G. French
Albuquerque, NM
for Appellees

OPINION
WECHSLER, Judge.
{1} 	After the City of Albuquerque’s personnel board (the personnel board)
determined that Defendant City of Albuquerque (the City) had just cause to terminate
Plaintiff Carolyn Mascareñas, Plaintiff filed a single complaint in district court
appealing the personnel board’s decision and alleging constitutional, contract, and
statutory claims against the City. 	Plaintiff appeals two district court orders in this
case: (1) an order affirming the decision of the personnel board, determining that the
City had just cause in terminating Plaintiff’s employment with the City; and (2) an
order dismissing Plaintiff’s due process, breach of contract, and Family Medical
Leave Act (FMLA) claims on the ground that the claims or the factual predicates of
the claims were litigated in the prior personnel board proceedings. 	In this appeal,
Plaintiff argues that (1) the personnel board’s decision was arbitrary, not in
accordance with the law, and not supported by the facts, and (2) the district court erred
by dismissing Plaintiff’s due process, breach of contract, and FMLA claims on
preclusion grounds. We hold that (1) because Plaintiff did not file a timely petition
for writ of certiorari pursuant to Rule 12-505 NMRA, we lack jurisdiction to consider
Plaintiff’s appeal of the personnel board’s decision; and (2) the district court did not
err in concluding that res judicata barred Plaintiff’s breach of contract claim, and

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collateral estoppel precluded litigating the factual predicates of Plaintiff’s due process
and FMLA claims. Accordingly, we affirm.
BACKGROUND
{2} 	The City employed Plaintiff for more than seventeen years. She worked as a
clerk for the City’s Parking Division of the Municipal Development Department (the
Department), which was managed by Mike Torres beginning in late 2004. Shortly
after he took over the Department and continuing through 2005, Torres inflicted
“progressive discipline” upon Plaintiff.
{3} 	On January 3, 2005, Torres gave Plaintiff an “[o]fficial [v]erbal [w]arning” for
late arrivals to work. Despite the verbal warning, Torres remained unsatisfied with
Plaintiff, and Torres issued Plaintiff a pre-determination hearing notice on March 16,
2005, due to continued tardiness, abuse of her lunch hour, failing to call when arriving
late or taking sick leave, and being late returning from appointments. 	After the
hearing, the City issued Plaintiff a letter of reprimand on March 28, 2005, which was
held in abeyance for three months. 	Plaintiff received another “verbal letter of
reprimand” on June 10, 2005 for lunch break and work break abuse, patterns of
absence on Mondays or Fridays, failure to begin work in a timely manner, and
excessive personal use of the telephone. On August 2, 2005, Plaintiff’s immediate
supervisor, Shalene Andujo, gave Plaintiff another notice of pre-determination hearing

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for similar problems with tardiness; failure to call when arriving late or sick, to obtain
permission to work through her lunch hour, to submit proper forms when taking leave,
and to process four checks that were found in envelopes on her desk; and other work
performance issues related to processing traffic citations and warrants. 	After a
hearing, the City issued Plaintiff a three-day suspension and sent Plaintiff and Andujo
to mediation, which resulted in Plaintiff agreeing to arrive at her job on time and
complete her assigned tasks.
{4} 	On August 14, 2005, Plaintiff submitted an application for leave under the
FMLA to care for her husband and children due to her husband’s disability. The leave
was intermittent leave that was to be taken whenever her husband’s condition
worsened and needed to be approved on an as-needed basis. On September 2, 2005,
the City’s human resources department notified Plaintiff that it approved the FMLA
leave retroactive to August 14, 2005.
{5} 	Plaintiff did not take any of the intermittent FMLA leave until the afternoon of
September 26, 2005. Earlier that day, Plaintiff was issued a notice of investigation,
claiming that Plaintiff “was being investigated for matters associated with her work.”
Upon receiving the notice, Plaintiff became visibly upset and raised her voice in
protest of the investigation. 	At roughly 2:00 p.m., Plaintiff left work after having
placed a leave form on Andujo’s desk without consulting her. Plaintiff did not return

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to work on September 27, 2005. On September 28, 2005, she told Andujo during a
telephone conversation that she was on FMLA leave for September 26-28, and Andujo
informed Plaintiff that she needed a doctor’s note regarding her husband’s condition
for the days she was absent from work.
{6} 	On September 28, 2005, Plaintiff was hand delivered, at her home, a notice of
pre-determination hearing related to her work absence since September 26, 2005, her
continued late arrivals to work, and her failure to call prior to her shift when she was
late. Plaintiff did not appear for the hearing related to these charges scheduled for
October 6, 2005, and the hearing was rescheduled for October 13, 2005. Plaintiff did
not attend the rescheduled hearing, and it was held without her presence. 	At the
conclusion of the hearing, the hearing officer recommended a fifteen-day suspension,
which Plaintiff did not appeal to the personnel board.
{7} 	The human resources department sent Plaintiff a letter on October 10, 2005,
requiring that Plaintiff submit, by October 11, 2005, medical information regarding
her husband’s condition in order to recertify her FMLA leave. 	Plaintiff did not
provide any medical information to the human resources department.
{8} 	On October 21, 2005, Plaintiff was again given a notice of a pre-determination
hearing set for October 29, 2005, concerning allegations that she was on unauthorized
leave since September 26, 2005. Plaintiff presented a doctor’s note at the hearing,

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stating that she should be excused from work on days her husband’s condition flared
up, but did not mention when or if his condition had recently flared up. The hearing
resulted in Plaintiff receiving a fifteen-day suspension.
{9} 	The next day, on October 27, 2005, human resources director Pat Miller
informed Plaintiff that her FMLA leave was cancelled due to a lack of medical
documentation, retroactive to September 26, 2005. 	Plaintiff also received a hand-
delivered letter on October 28, 2005, notifying her that her FMLA leave was cancelled
and that she would be terminated if she did not report to work on October 31, 2005.
After Plaintiff did not return to work on October 31, 2005, the Department Director,
John Castillo, notified her that the City was terminating her employment.
{10} 	A post-termination hearing took place over a three-day period, in which
Plaintiff argued that she was terminated without just cause. 	During the hearing,
Plaintiff argued that she was a good and productive employee for seventeen years and
that her problems with Torres and Andujo resulted from a longstanding grudge Torres
had with Plaintiff’s husband. Plaintiff also argued that the City failed to provide her
with a performance evaluation and that her supervisors failed to refer the disciplinary
actions taken against Plaintiff to the City’s mediation coordinator, contrary to the
City’s merit system ordinance. See Albuquerque, N.M., Code of Ordinances, ch. 3,
art. 1, §§ 3-1-1 to -28 (1978, as amended through 2010).

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{11} 	The hearing officer concluded that the City did not give Plaintiff a performance
evaluation, contrary to Section 3-1-9(C) of the merit system ordinance, and that the
City failed to refer the disciplinary actions to the City’s mediation coordinator,
contrary to Section 3-1-23(C) of the merit system ordinance. However, the hearing
officer concluded that both of these violations of the merit system ordinance by the
City were harmless error. The hearing officer also found that Plaintiff failed to abide
by the City’s personnel rules and regulations, that the City provided appropriate
progressive discipline, and that Plaintiff did not provide valid documentation to
support her FMLA leave. 	Further, the hearing officer determined that the City
properly notified Plaintiff to return to work on October 31, 2005 or be considered to
have quit her job, that Plaintiff failed to return to work, and she had testified that she
“did not return to work because she chose not to.” 	The hearing officer therefore
concluded that just cause supported Plaintiff’s termination. 	The personnel board
upheld the recommendation of the hearing officer by a 3-1 vote.
{12} 	Plaintiff filed a complaint in district court on December 15, 2006, containing
four claims. The first claim was a notice of appeal of the personnel board’s decision
(the administrative appeal), pursuant to Rule 1-074 NMRA and Section 3-1-25(F) of
the merit system ordinance. Plaintiff subsequently filed a statement of appellate issues
related to the administrative appeal, pursuant to Rule 1-074(K). The second, third,

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and fourth claims (the civil complaint) alleged that the City violated Plaintiff’s due
process rights; breached the implied employment contract consisting of the merit
system ordinance, the City’s personnel rules and regulations, and the collective
bargaining agreement between the City and City employees; and abridged Plaintiff’s
rights under the FMLA.
{13} 	The City answered Plaintiff’s complaint, filed a demand for a twelve-person
jury for the civil complaint, and filed a response to Plaintiff’s statement of appellate
issues. Plaintiff subsequently filed a reply to the City’s response. While the parties
awaited the district court’s decision on the administrative appeal, the district court
erroneously dismissed the case for lack of prosecution on November 26, 2007.
Plaintiff filed a motion to reinstate, informing the district court that the parties had
fully briefed the administrative appeal and were awaiting the district court’s decision.
Additionally, Plaintiff argued that the civil complaint, outside of the administrative
appeal, would be litigated once the district court decided the administrative appeal.
The district court reinstated the case and on April 15, 2008, filed an memorandum
opinion and order affirming the decision of the personnel board. The district court
also “discarded” Plaintiff’s civil complaint, stating that Plaintiff had not exhausted
administrative remedies and that the same issues were covered by the administrative
appeal.

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{14} 	Plaintiff filed a motion for reconsideration on April 29, 2008, essentially
arguing that the civil complaint and the administrative appeal raised separate issues.
The City responded, arguing that the district court did not err under the law of the case
doctrine. The district court reinstated the civil complaint on July 28, 2008, but it did
not reinstate the administrative appeal. At a scheduling conference held on January
21, 2009, the district court set the case on its November 2-20, 2009 docket and set
August 7, 2009 as the deadline for all dispositive motions.
{15} 	Represented by new counsel, on September 8, 2009, the City filed a motion for
judgment of dismissal or, in the alternative, to vacate trial. 	The City’s brief
erroneously stated that the district court had not reinstated the civil complaint. 	In
addition, the City argued that res judicata barred the breach of contract claim and that
collateral estoppel or the law of the case doctrine precluded the due process and
FMLA claims because the personnel board decided the factual predicates of each
claim. After a hearing, the district court granted the City’s motion and issued an order
dismissing the civil complaint.
JURISDICTION OVER ADMINISTRATIVE APPEAL
{16} 	Plaintiff argues that the district court erred by affirming the decision of the
personnel board in its memorandum opinion and order on April 15, 2008. 	In
particular, Plaintiff claims that the personnel board’s decision was arbitrary, not in

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accordance with the law, and not supported by facts because (1) the City failed to hold
a pre-termination hearing on the termination charges, (2) the personnel board failed
to consider favorable testimony, and (3) the City’s actions regarding Plaintiff violated
the FMLA and various City ordinances. The City, on the other hand, argues that this
Court lacks jurisdiction to address the district court’s order affirming the personnel
board because Plaintiff did not file a petition for writ of certiorari pursuant to Rule 12-
505. The City also asserts that because Plaintiff did not timely file a petition for writ
of certiorari and therefore exhausted her ability to have the personnel board’s decision
reviewed, issue preclusion bars Plaintiff from challenging the factual findings of the
district court’s April 15, 2008 order affirming the personnel board.
{17} 	We first address the City’s argument that this Court lacks jurisdiction over the
administrative appeal. See State ex rel. Dep’t of Human Servs. v. Manfre, 102 N.M.
241, 242, 693 P.2d 1273, 1274 (Ct. App. 1984) (“[W]e have a duty to determine
whether [we have] jurisdiction of an appeal[.]”); In re Doe, III, 87 N.M. 170, 171, 531
P.2d 218, 219 (Ct. App. 1975) (“[L]ack of jurisdiction at any stage of the proceedings
is a controlling consideration which must be resolved before going further[.]”). The
City bases its argument on Plaintiff’s failure to file a petition for writ of certiorari
pursuant to Rule 12-505. Specifically, the City contends that Plaintiff impermissibly
combined her appeal of the district court’s order affirming the personnel board with

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the appeal of the order dismissing the civil complaint and that a writ of certiorari is
“the only method for obtaining review by this Court” of the administrative appeal.
{18} 	As noted, Plaintiff brought the administrative appeal pursuant to Rule 1-074,
which governs a district court’s appellate jurisdiction over appeals from administrative
decisions or orders when there is a statutory right of review. 	Once a district court
sitting in its appellate capacity has rendered a final order or decision on a Rule 1-074
appeal, further review by this Court is governed by Rule 12-505. 	See Rule 12-
505(A)(1) (“This rule governs review by the Court of Appeals of decisions of the
district court . . . from administrative appeals pursuant to Rule 1-074[.]”). Rule 12-
505(B) provides that a “party aggrieved by the final order of the district court . . . may
seek review of the order by filing a petition for writ of certiorari with the Court of
Appeals, which may exercise its discretion whether to grant the review.” Rule 12-
505(C) requires that the petition for writ of certiorari be filed within thirty days of the
final action by the district court.
{19} 	Plaintiff did not file a petition for writ of certiorari for the administrative appeal
after the dismissal of the entirety of the complaint. When the district court granted the
City’s motion for judgment of dismissal or to vacate trial and issued an order of
dismissal on November 4, 2009, Plaintiff filed a notice of appeal pursuant to Rule 12-
201(A)(2) NMRA on December 4, 2009, challenging the order of dismissal of the

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civil complaint. It was not apparent that Plaintiff intended to challenge the district
court’s order affirming the personnel board until Plaintiff filed her docketing
statement on January 4, 2010, which included the appeal of the personnel board’s
decision as one of her appellate issues. We therefore address (1) whether the inclusion
of the administrative appeal in the docketing statement was sufficient in form to
comply with Rule 12-505 as a non-conforming petition for writ of certiorari, and (2)
if so, whether Plaintiff’s non-conforming petition for writ of certiorari was timely
under Rule 12-505(C) even though the docketing statement was not filed within the
thirty-day period.
{20} 	This Court has recently addressed whether a timely notice of appeal and
docketing statement are an adequate substitute for a petition for writ of certiorari. In
Wakeland v. New Mexico Department of Workforce Solutions, 2011-NMCA-___,
¶ 13, ___ N.M. ___ P.3d ___ (No. 31,031, filed Sept. 27, 2011), this Court determined
that a notice of appeal alone is not an adequate substitution for a petition for writ of
certiorari. 	See also Roberson v. Bd. of Educ. of the City of Santa Fe, 78 N.M. 297,
299-300, 430 P.2d 868, 870-71 (1967) (holding that a notice of appeal was an
insufficient substitute for a petition for writ of certiorari). However, because “New
Mexico courts have not been stringent about the form and content requirements of
documents filed in an effort to seek appellate review,” a docketing statement

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complying with the substantive requirements of Rule 12-208(D) NMRA is an
adequate substitute for a petition for writ of certiorari. Wakeland, 2011-NMCA-___
¶¶ 7, 16; see also Audette v. City of Truth or Consequences, 2011-NMCA-___, ¶ 5,
___ N.M. ___, ___ P.3d ___ (No. 30,988, filed Sept. 27, 2011) (“[A] docketing
statement that substantially complies with the content requirements for a petition for
writ of certiorari will be accepted as a petition despite the fact that its form and
content do not precisely comply with the requirements of Rule 12-505.”).
{21} 	However, in Wakeland, we held that a non-conforming petition for a writ of
certiorari, such as a docketing statement, must be filed within thirty days after the
order to be reviewed, as required by Rule 12-505(C). Wakeland, 2011-NMCA-___,
¶ 18. We noted that parties seeking to substitute a docketing statement for a petition
for writ of certiorari will often not meet the thirty-day time requirement due to the
procedural differences governing appeal as of right and the rules governing
discretionary review. 	Id.; see Rule 12-201(A)(2) (requiring the notice of appeal be
filed within thirty days of the judgment or order appealed from); Rule12-208(B)
(requiring that the docketing statement be filed within thirty days of the notice of
appeal). We stated that, because “the time requirement for filing a petition for writ of
certiorari is a mandatory precondition to the exercise of an appellate court’s
jurisdiction to review a petition on its merits[,]” a petitioner must file the docketing

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statement within thirty days in order to be considered as a timely non-conforming
petition for writ of certiorari. Wakeland, 2011-NMCA-___, ¶ 18.
{22} 	Applying Wakeland and Audette, we construe Plaintiff’s docketing statement
as a non-conforming petition for writ of certiorari. 	However, Plaintiff filed her
docketing statement on January 4, 2010, which was sixty days after the district court
entered its order dismissing the complaint. 	Therefore, although we accept her
docketing statement as a non-conforming petition for writ of certiorari, it was
untimely under Rule 12-505(C).
{23} 	When a petition for writ of certiorari is untimely, this Court will not excuse
untimely filing “absent a showing of the kind of unusual circumstances that would
justify an untimely petition.” Wakeland, 2011-NMCA-___, ¶ 20. Our Supreme Court
has stated that unusual circumstances justifying the untimely filing of a petition for
writ of certiorari exist when (1) there is error on the part of the court, or (2) “when the
filing is not very late, and there are other unusual circumstances that were not caused
by the court system but that were not within the control of the party seeking appellate
review.” Id.
{24} 	Plaintiff does not argue, nor do we conclude, that unusual circumstances justify
the untimely filing of the docketing statement. Plaintiff filed the docketing statement
thirty days after the thirty-day period prescribed by Rule 12-505(C), and there is no

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claim of error on the part of the district court. The only apparent reason that Plaintiff
did not file a petition for writ of certiorari for the administrative appeal after the
dismissal of the complaint was because she believed that it was procedurally valid to
include the administrative appeal in the notice of appeal and docketing statement for
the civil complaint. 	However, the procedures governing this Court’s review of
appeals from the personnel board pursuant to Rule 1-074 are well established. 	See
Rule 12-505(A)(1) (stating that Rule 12-505 governs district court decisions
addressing administrative appeals pursuant to Rule 1-074); City of Albuquerque v.
AFSCME Council 18 ex rel. Puccini, 2011-NMCA-021, ¶ 7, 149 N.M 379, 249 P.3d
510 (addressing the merits of an appeal from the personnel board after noting that this
Court granted a petition for writ of certiorari pursuant to Rule 12-505). Further, this
Court has stated that “[s]imply being confused or uncertain about the appropriate
procedure for seeking review is not the sort of unusual circumstance beyond the
control of a party that will justify an untimely filing.” Wakeland, 2011-NMCA-___,
¶ 25. This Court lacks jurisdiction to address the merits of Plaintiff’s administrative
appeal because the appeal was untimely and unusual circumstances do not justify the
untimeliness.
PRECLUSION OF CIVIL COMPLAINT
{25} 	Plaintiff next argues that the district court erred in dismissing the civil

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complaint because she was required to file the civil complaint in the same action as
her administrative appeal and res judicata does not bar litigation of the FMLA, breach
of contract, and due process claims. The City responds by arguing that the factual
predicates of each claim were litigated before the personnel board and therefore
collateral estoppel, or issue preclusion, not res judicata, bars re-litigation of those
facts, and that, as a result, there are no issues of material fact to support the claims.
{26} 	Plaintiff supports her argument that she was required to file the civil complaint
in the same action as the administrative appeal and that res judicata does not apply by
citing Chavez v. City of Albuquerque, 1998-NMCA-004, 124 N.M. 479, 952 P.2d 474,
Strickland v. City of Albuquerque, 130 F.3d 1408 (10th Cir. 1997), and Mares v. City
of Albuquerque, 173 F.3d 864 (table), No. 98-2118, 1999 WL 224866 (10th Cir. April
19, 1999). We begin by discussing these cases.
{27} 	In Chavez, 1998-NMCA-004, ¶ 2, the plaintiff filed a complaint in district court
alleging breach of contract, denial of his right to privacy, violations of his right to be
free from unreasonable searches and seizures, violations of his rights under the Open
Meetings Act, NMSA 1978, §§ 10-15-1 to -4 (1974, as amended through 2009), and
violations of both his procedural and substantive due process rights following
termination for failing a drug test. The district court granted summary judgment in
favor of the city based on res judicata, reasoning that the plaintiff did not and should

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have raised the claims in his previous grievance before the personnel board. Chavez,
1998-NMCA-004, ¶ 3. This Court reversed on all claims, except for the breach of
contract claim, holding that, because the city’s grievance process was limited to
matters within the purview of the merit system ordinance and the city’s personnel
rules and regulations, the personnel board did not have jurisdiction over the plaintiff’s
constitutional or statutory claims. Id. ¶¶ 8, 12. As a result, the district court erred by
applying res judicata to the constitutional and statutory claims. Id. ¶ 29. However,
this Court affirmed the district court’s determination that the plaintiff could have and
should have raised his contract claims during the administrative proceeding before the
personnel board. Id. ¶ 28.
{28} 	In Strickland, 130 F.3d at 1410, the plaintiff filed a grievance after the city
terminated his employment for failing a drug test. The city’s personnel board held
that just cause supported the termination, and both the district court and this Court
affirmed the personnel board’s decision. Id. While the personnel board appeal was
pending in district court, the plaintiff filed a complaint in federal court asserting fourth
amendment and procedural due process violations and various state claims. Id. After
the state district court affirmed the personnel board, the federal court granted summary
judgment based on res judicata. Id. Applying New Mexico preclusion law, the Tenth
Circuit affirmed, holding that regardless of whether the personnel board had

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jurisdiction over the claims, the plaintiff was required to bring them in state district
court during his appeal of the personnel board’s decision. Id. at 1411-13. Similarly,
Mares, 1999 WL 224866 at *4, relied on Chavez and Strickland in holding that res
judicata precluded the plaintiff from asserting constitutional claims in federal court
because he should have asserted the claims in a state district court action appealing a
decision of the personnel board.
{29} 	We first determine that the district court did not err in holding that Chavez,
1998-NMCA-004, ¶ 28, precluded the breach of implied contract claim. 	Plaintiff
based her breach of contract claim solely on the merit system ordinance, the City’s
personnel rules and regulations, and the collective bargaining agreement governing
employment with the City. The personnel board had jurisdiction over this claim, and
res judicata prevented Plaintiff from raising the claim in the civil complaint. See id.
¶¶ 5, 28.
{30} 	However, regarding the FMLA and due process claims in the civil complaint,
we agree with Plaintiff that Chavez, Strickland, and Mares stand for the proposition
that res judicata does not bar litigation of Plaintiff’s civil complaint based on the
district court’s order affirming the personnel board. Further, Strickland and Mares
seem to support Plaintiff’s argument that res judicata required that Plaintiff file the
administrative appeal and civil complaint in the same action, although we note that

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our state appellate courts have not decided that issue. However, the district court held
that collateral estoppel, not res judicata, precluded Plaintiff’s FMLA and due process
claims. The two doctrines are distinct. As this Court has stated,
[t]he doctrines of res judicata and collateral estoppel by judgment
involve different and distinct principles. 	Res judicata in its proper
application operates where there are identical parties, causes of action,
subject matter, and capacities in the two cases; collateral estoppel by
judgment arises where the causes of action are different but some
ultimate facts or issues may necessarily have been decided in the
previous case. 	Stated another way, where the causes of action in the
cases are identical in all respects, the first judgment is a conclusive bar
upon the parties and their privies as to every issue which either was or
properly could have been litigated in the previous case. But absent the
identity of causes of action, the parties are precluded from relitigating
only those ultimate issues and facts shown to have been actually and
necessarily determined in the previous litigation.
C & H Constr. & Paving Co. v. Citizens Bank, 93 N.M. 150, 160, 597 P.2d 1190,
1200 (Ct. App. 1979) (internal quotation marks and citation omitted). We therefore
must determine whether the district court erred in applying collateral estoppel to the
personnel board’s decision.
{31} 	“The doctrine of collateral estoppel fosters judicial economy by preventing the
relitigation of ultimate facts or issues actually and necessarily decided in a prior suit.”
Shovelin v. Cent. N.M. Elec. Coop., Inc., 115 N.M. 293, 297, 850 P.2d 996, 1000
(1993) (internal quotation marks and citation omitted). 	Our Supreme Court has
acknowledged that collateral estoppel applies to issues resolved in an administrative

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agency adjudicative decision to a later civil trial when rendered under conditions in
which the parties have the opportunity to fully and fairly litigate the issue at the
administrative hearing. 	Id. at 298, 850 P.2d at 1001. 	For collateral estoppel to
preclusively effect litigation, the moving party must show that “(1) the party to be
estopped was a party to the prior proceeding, (2) the cause of action in the case
presently before the court is different from the cause of action in the prior
adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the
issue was necessarily determined in the prior litigation.” Id. at 297, 850 P.2d at 1000.
Once the moving party has produced sufficient evidence to meet all four elements, the
district court must determine whether the party to be estopped had a full and fair
opportunity to litigate the issue in the prior litigation. Id.
{32} 	In her due process claim, Plaintiff alleged that the City failed to hold a pre-
termination hearing, pursuant to her rights under the merit system ordinance, that the
ultimatum to return to work was a pretext that she voluntarily left her job, and that the
post-termination hearing was unlawful because the hearing officer refused to consider
evidence favorable to Plaintiff. 	The personnel board found, and the district court
affirmed, factual findings that negate these allegations. Both the personnel board and
the district court found that an adequate pre-termination hearing took place on October
26, 2005, which resulted in Plaintiff being informed to report to work on October 31,

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2005, or face termination. 	Further, the district court found that there was no
indication that the hearing officer did not consider all the evidence presented.
{33} 	With regard to Plaintiff’s FMLA claim, Plaintiff alleged that she was entitled
to FMLA leave to care for her husband and children due to her husband’s physical
disability. See 29 U.S.C.A. § 2612(a)(1)(C) (2009) (providing that eligible employees
are entitled to twelve workweeks of leave per twelve-month period to care for a
spouse or child that has a serious medical condition). Plaintiff further claimed that she
properly certified the FMLA leave to which she was entitled, pursuant to 29 U.S.C.A.
Section 2613(a) (2009), that the City’s demand for recertification was unreasonable,
and that the City violated 29 C.F.R. Section 825.110(d) (2011) by retroactively
denying Plaintiff’s FMLA leave. Again, the personnel board found, and the district
court affirmed, factual findings that negate these allegations. The personnel board
found that Plaintiff provided no valid documentation to support taking intermittent
FMLA leave to support her absence from work from September 26, 2005 through
October 31, 2005. The district court elaborated that the City was well within its rights
to require Plaintiff to recertify her FMLA after taking her first day of leave on
September 26, 2005, because of the unusual circumstances regarding her departure on
that day and that, because she failed to properly recertify the leave after September 26,
2005, there was no retroactive denial of Plaintiff’s FMLA leave.

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{34} 	The City has made a prima facie showing that collateral estoppel applies to
these findings. First, Plaintiff and the City were identical parties to the hearing before
the personnel board. Second, the cause of action in the personnel board hearing was
different from the due process and FMLA causes of action in this case. See Chavez,
1998-NMCA-004, ¶ 12 (stating that the personnel board has limited authority to
administer the merit system ordinance and that it has no authority to decide
constitutional or statutory claims). 	Third, as the findings of the personnel board
indicate, the issues of whether there was an adequate pre-termination hearing, whether
Plaintiff voluntarily left her job, whether Plaintiff properly applied for and certified
FMLA leave, and whether the FMLA leave was retroactively rescinded were actually
litigated in the personnel board hearing. Fourth, the issues were necessarily decided
in the personnel board hearing. The personnel board decided the issue of whether the
City had just cause under the merit system ordinance to terminate Plaintiff’s
employment. The personnel board considered whether the City granted Plaintiff’s
FMLA leave and subsequently retroactively rescinded it, because it was necessary to
consider the issue of whether Plaintiff voluntarily abandoned her employment.
Further, because the merit system ordinance requires a pre-termination hearing, the
personnel board must have determined that the City held a proper pre-termination
hearing in finding that the City provided appropriate discipline to Plaintiff.

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{35} 	Turning now to the question of whether the parties had a full and fair
opportunity to litigate, we employ the two-part inquiry described in Rex, Inc. v.
Manufactured Housing Committee, 119 N.M. 500, 505, 892 P.2d 947, 952 (1995).
First, we examine “whether the non-movant had . . . incentive to vigorously litigate
the prior action.” Id. In this case, because the issue addressed in the personnel board
hearing was whether the City had just cause to terminate Plaintiff’s employment, we
cannot say that she did not have the incentive to vigorously litigate. 	See Larsen v.
Farmington Mun. Sch., 2010-NMCA-094, ¶ 12, 148 N.M. 926, 242 P.3d 493 (holding
that the plaintiff had a full and fair opportunity to litigate in an arbitration proceeding
challenging his termination from employment); cf. Reeves v. Wimberly, 107 N.M. 231,
235, 755 P.2d 75, 79 (Ct. App. 1988) (holding that the plaintiff had “ample
opportunity and incentive” to fully litigate when the issue at stake was the only issue
in the prior case).
{36} 	The second part of our inquiry is “whether procedural differences between the
two actions, such as representation by counsel, presentation of evidence, questioning
of witnesses, and appellate review, would make preclusion unfair, and whether policy
considerations exist to deny any preclusive effect. 	Rex, Inc., 119 N.M. at 505, 892
P.2d at 952. During the personnel board hearing, both parties were entitled to be and
were represented by counsel. The hearing took place over a three-day period, and the

23
parties submitted written briefs at the close of the hearing. Both parties submitted
exhibits and presented witness testimony, and the hearing officer was entitled to
subpoena witnesses and compel production of relevant documents. See Albuquerque,
N.M., Code of Ordinances § 3-1-25(H). Further, the merit system ordinance requires
that the hearing officer be an attorney licensed to practice in New Mexico or
experienced in employee relations or personnel administration. See id. § 3-1-26(C).
The hearing officer must issue factual findings and conclusions of law, and the
decision is approved or rejected by a vote of the entire personnel board. See id. § 3-1-
25(C), (E). The plaintiff is then entitled to an appeal as a matter of right in district
court. 	See id. § 3-1-25(F). 	Considering the procedures, it would not be unfair to
apply collateral estoppel to a personnel board’s decision. See Larsen, 2010-NMCA-
094, ¶¶ 10-12 (upholding district court’s application of collateral estoppel when the
plaintiff presented evidence, cross-examined witnesses, testified on his own behalf,
and was represented by counsel); cf. Shovelin, 115 N.M. at 301, 850 P.2d at 1004
(holding that this factor weighs against application of collateral estoppel in an
unemployment case because the hearing was two-and-one-half hours, provided
minimal time for discovery, and was conducted by telephone). The district court did
not err in applying collateral estoppel in dismissing Plaintiff’s civil complaint based
on the factual determinations made by the personnel board.

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CONCLUSION
{37} 	We hold that (1) because Plaintiff did not file a timely writ of certiorari
pursuant to Rule 12-505, this Court lacks jurisdiction to consider Plaintiff’s appeal of
the personnel board’s decision; and (2) the district court did not err in concluding that
res judicata barred Plaintiff’s breach of contract claim, and collateral estoppel
precluded litigating the factual predicates of Plaintiff’s due process and FMLA claims.
Accordingly, we affirm.
{38} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_______________________________
JONATHAN B. SUTIN, Judge
_______________________________
RODERICK T. KENNEDY, Judge