February 24, 2015 – Charles Wood v. The City of Alamogordo and Sam Trujillo, No. 33,554

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 24, 2015

NO. 33,554

CHARLES WOOD,
Plaintiff-A ppellant,
V.

THE CITY OF ALAMOGORDO
and SAM TRUJILLO,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Manuel I. Arrieta, District J udge

John R. Hakanson, P.C.
Miguel Garcia
Alamogordo, NM

for Appellant

Brennan & Sullivan, P.A.
James P. Sullivan
Christina L.G. Brennan
Santa Fe, NM

Robyn Hoffman
Tiyeras, NM

for Appellees

1Wood does not argue that the New Mexico Constitution should be interpreted
to provide greater protection than the federal due process clause provides and
concedes that the analysis is the same. We have, therefore, limited our analysis
accordingly. See State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1
(holding that where a state constitutional provision has not been interpreted differently
than its federal analog, the party seeking different interpretation must assert in the
district court that the state constitution offers greater protection and must provide
reasons in support of a different interpretation).
OPINION
KENNEDY, Judge.
{1} 	Plaintiff Charles Wood appeals the district court’s order granting summary
judgment dismissing his claims against the City of Alamogordo and Sam Trujillo
(collectively, Defendants) for violation of his procedural due process rights under both
the United States and New Mexico Constitutions.1 Wood asserts that the existence of
bias in pre-termination and post-termination procedures violated his right to due
process. We conclude as a matter of law that an employee is not entitled to a non-
biased, pre-termination decisionmaker. And, to the extent that Wood asserts post-
termination bias, we conclude that he failed to establish sufficient material facts to
support this claim. Accordingly, we affirm.
I. 	BACKGROUND
{2} 	Wood was employed as Captain of Operations of the Alamogordo Department
of Public Safety when he became the subject of domestic abuse allegations. Before he
was arrested and while the investigation was ongoing, Wood was advised by Trujillo,
the Director of the Alamogordo Department of Public Safety, Wood would be

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terminated if arrested. Trujillo also informed Wood of the benefits of early retirement
versus termination. Wood asserts that Trujillo told him that Wood “had no chance of
winning this” during their discussion of the pre-termination hearing over which
Trujillo would preside. Although Wood would have also been entitled to a post-
termination appeal heard by the city manager, Wood alleged that Trujillo had
remarked to him in the past that Trujillo had the city manager “under his thumb.”
Wood therefore asserts that he elected early retirement before he was either arrested
or terminated because exercise of the pre- and post-termination procedures available
to him would have been futile.
{3} 	Wood filed a complaint, under 42 U.S.C. § 1983 (2013), against Defendants,
claiming they violated his procedural due process rights under the United States and
New Mexico Constitutions by failing to provide fair pre- and post-termination
procedures and that Defendants violated the Peace Officer’s Employer-Employee
Relations Act. The parties stipulated to dismissal of the Peace Officer’s Employer-
Employee Relations claim. On the motion for summary judgment, the district court
determined that, although Wood could conceivably establish a cause of action based
on a combination of the New Mexico Constitution and 42 U.S.C. 1983’s grant of
remedies for a violation of constitutional rights, he failed to do so in this case. The
district court granted summary judgment in favor of Defendants, ruling that Trujillo

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was entitled to qualified immunity because he was acting in his official capacity and
because Wood failed to show that Trujillo violated clearly established law. The district
court also ruled there was no genuine issue of material fact as to a violation by the
City of Wood’s procedural due process rights. This appeal followed.
II. 	DISCUSSION
{4} 	On appeal, Wood contends that the district court erred by (1) determining that
Wood had not demonstrated a violation of clearly established law with respect to
Trujillo, and (2) concluding that Wood had not presented sufficient material facts to
demonstrate a violation of his procedural due process rights by the City. We begin by
setting out the standards relevant to our review of Wood’s claims and then turn to
address these arguments.
A. 	Standard of Review and Applicable Law
{5} 	“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.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; see Rule 1-
056(C) NMRA. We review a district court’s grant of summary judgment de novo.
Self, 1998-NMSC-046, ¶ 6.
{6} 	The party moving for summary judgment has the burden to make a prima facie
showing that no genuine issue of material fact exists. Hyden v. Law Firm of

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McCormick, Forbes, Caraway & Tabor, 1993-NMCA-008, ¶ 10, 115 N.M. 159, 848
P.2d 1086. “Once this prima facie showing has been made, the burden shifts to the
non-movant to [show] the existence of specific evidentiary facts which would require
trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M.
713, 242 P.3d 280 (internal quotation marks and citation omitted). “The non-movant
may not rely on allegations or speculation, but must come forward with admissible
evidence demonstrating a genuine issue requiring trial and also demonstrate that facts
allegedly in dispute are material to the claims at issue.” Buke, LLC, v. Cross Country
Auto Sales, LLC, 2014-NMCA-078, ¶ 21, 331 P.3d 942, cert. denied, 2014-
NMCERT-007, 331 P.3d 923. “To determine which facts are material, the court must
look to the substantive law governing the dispute[.] The inquiry’s focus should be on
whether, under substantive law, the fact is necessary to give rise to a claim.” Romero,
2010-NMSC-035, ¶ 11 (internal quotation marks and citations omitted). Finally,
because resolution on the merits is favored, “we view the facts in a light most
favorable to the party opposing the motion and draw all reasonable inferences in
support of a trial on the merits[.]” Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128
N.M. 328, 992 P.2d 879.
B. 	Qualified Immunity, Clearly Established Law, and Trujillo

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{7} 	We begin by addressing Wood’s argument that the district court erred in
concluding he failed to establish that Trujillo violated clearly established law. In order
to analyze this issue, we must first discuss the concept of qualified immunity.
{8} 	Under 	42 U.S.C. § 1983, a government official performing discretionary
functions is entitled to qualified immunity from suit as long as his “conduct [did] not
violate clearly established [federal] statutory or constitutional rights of which a
reasonable person would have known.” Cockrell v. Bd. of Regents of N.M. State Univ.,
1999-NMCA-073, ¶ 8, 127 N.M. 478, 983 P.2d 427 (alterations in original) (internal
quotation marks and citations omitted). This Court has previously stated:
[Q]ualified immunity “provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Put another way,
qualified immunity is “the usual rule,” such that “only in exceptional
cases” will governmental actors have no immunity from § 1983 claims
brought against them for money damages in their individual capacities.
Cockrell, 1999-NMCA-073, ¶ 8 (citations omitted).
{9} 	Once qualified immunity is raised, our courts apply a two-part test:
First, a court must look at the undisputed facts and those facts
adduced by the party opposing summary judgment to see if there is any
evidentiary support for finding a possible violation of law. Second, if the
law may have been violated, a court must ask if that law was clearly
established at the time of the alleged violation.
Id. ¶ 9 (citations omitted). Thus, as this Court has previously recognized, “[o]n a
summary judgment motion the issue is an essentially legal question whether the

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conduct of which the plaintiff complains violated clearly established law.” Id. (internal
quotation marks and citation omitted). Ultimately, “[a]n official is entitled to qualified
immunity on a motion for summary judgment if the right allegedly violated was not
so clearly established that an objectively reasonable, similarly situated official would
have known that the challenged actions would violate the Constitution.” Id.
{10} 	Wood relies on Reid v. New Mexico Board of Examiners of Optometry to argue
that Trujillo violated clearly established law and is therefore not entitled to qualified
immunity. 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198. In Reid, our Supreme Court
reversed a board of examiners’ decision revoking an optometrist’s license to practice
because the board failed to disqualify one of its members on the basis of bias. Id.
¶¶ 1, 9. The Supreme Court held that “[w]hen government agencies adjudicate or
make binding determinations which directly affect the legal rights of individuals, it
is imperative that those agencies use the procedures which have traditionally been
associated with the judicial process.” Id. ¶ 8. Thus, Wood argues that, “[a]t a
minimum, a fair and impartial tribunal requires that the trier of fact be disinterested
and free from any form of bias or predisposition regarding the outcome of the case”
and that Trujillo’s predisposition violated his right to due process. Id. ¶ 7.
{11} 	While Reid emphasizes the importance of fairness in administrative procedures,
we note that it addresses procedures in which an ultimate decisionmaker is biased. Id.

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¶ 8. The facts presented by Reid did not require our Supreme Court to address the
level of procedure required to satisfy due process at a pre-deprivation stage. See
Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857
P.2d 22 (“[C]ases are not authority for propositions not considered.” (internal
quotation marks and citation omitted)). Thus, Reid is distinguishable. Because our
case law does not address whether bias by the decisionmaker at the pre-termination
phase violates procedural due process, we turn to federal law.
{12} 	Courts that have addressed this issue have held that procedural due process does
not require an unbiased decisionmaker at the initial termination phase. In McKinney
v. Pate, 20 F.3d 1550, 1562 (11th Cir. 1994), the Eleventh Circuit held that
“due process is satisfied when the challenger has an opportunity to present his [or her]
allegations and to demonstrate the alleged bias.” According to the Eleventh Circuit,
“[a] demonstration that the decisionmaker was biased, however, is not tantamount to
a demonstration that there has been a denial of procedural due process.” Id. When an
employee facing termination “learns of the decisionmaker’s alleged bias prior to or
during 	the 	proceeding[,] 	. 	. 	. 	courts 	usually 	require 	that 	the 	challenger
contemporaneously object to the bias.” Id. The Eleventh Circuit explained:
[U]nlike substantive due process violations, procedural due process
violations do not become complete unless and until the state refuses to
provide due process. More specifically, in the case of an employment
termination case, due process [does not] require the state to provide an

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impartial decisionmaker at the pre-termination hearing. The state is
obligated only to make available the means by which [the employee] can
receive redress for the deprivations.
Id. (alterations in original) (internal quotation marks and citations omitted).
{13} 	The Third Circuit recognized that the initial termination decision is usually
made by an employee’s direct supervisor or someone working in the same
organization as the employee because that person is already familiar with the
employee and the situation. McDaniels v. Flick, 59 F.3d 446, 460 (3rd Cir. 1995).
“[T]o require that the state ensure an impartial pre[-]termination hearing in every
instance would as a practical matter require that termination decisions initially be
made by an outside party rather than the employer as charges of bias always could be
made following an in-house discharge.” Id. The Third Circuit reasoned that, while it
is not surprising that an individual responsible for the pre-termination decision would
be the target for claims of bias, to require pre-termination decisions to be made by an
outside 	party 	would 	be 	unduly 	cumbersome 	for 	the 	employer 	and 	may 	be
unreasonably invasive for the employee. Id. Following the decision of the Eleventh
Circuit in McKinney, as well as the decisions of the Ninth, Sixth, and Fifth Circuits,
the Third Circuit concluded in McDaniels that “such excessive pre[-]termination
precaution is [not] necessary where the state provides a neutral tribunal at the post-
termination stage that can resolve charges of improper motives.” McDaniels, 59 F.3d

9
at 460; see Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991) (“[F]ailure
to provide an impartial decisionmaker at the pre[-]termination stage, of itself, does not
create liability, so long as the decisionmaker at the post-termination hearing is
impartial.”); Duchesne v. Williams, 849 F.2d 1004, 1005 (6th Cir. 1988) (holding that
procedural due process in the employment termination context does not require a
neutral and impartial decisionmaker at the pre-termination hearing, but only a right
of reply before the official responsible for the discharge); Schaper v. City of
Huntsville, 813 F.2d 709, 714-16 (5th Cir. 1987) (holding that, even if allegations of
bias and conspiracy on the part of the decisionmaker were true, “the state cannot be
expected to anticipate such unauthorized and corrupt conduct” (citing Parratt v.
Taylor, 451 U.S. 527, 541-44 (1981)). We agree and hold that due process does not
require the state to provide an employee with an impartial decisionmaker at the pre-
termination level.
{14} 	Viewing Wood’s argument in light of our holding, Trujillo was the person in
the best position to know the charges against Wood and whether termination was
warranted. Trujillo warned Wood that his failure to give a statement to the
investigating agency would result in an arrest, which, in turn, would result in his
termination. Trujillo also told Wood that, from what Trujillo knew of the case, there
was no way Wood would win an appeal of his termination. Trujillo’s statements

2We note that Wood argues all of his proffered facts were not accepted as true.
To the extent that Wood lists proffered facts that are more akin to conclusions, neither
this Court nor the district court is bound by Wood’s characterization of conclusions
or speculation as fact. See Buke, 2014-NMCA-078, ¶ 21.
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appear to explain to Wood the consequences of refusing to give a statement to the
investigating agency. Even assuming Wood properly objected that Trujillo was biased,
and Trujillo was, in fact, biased, the law is not clearly established that Wood was
entitled to an unbiased pre-termination decisionmaker and, for this reason, we affirm
the district court.
{15} 	We note, however, that case law holding that it is not necessary to guarantee a
completely disinterested pre-termination decisionmaker relies on the fact that the
employee is given access to a neutral post-termination tribunal that can resolve
charges of improper motive. See, e.g., McDaniels, 59 F.3d at 460. We further note that
Wood asserts that the city manager’s decision would be tainted or influenced by
Trujillo. Specifically, Wood testified in a deposition that Trujillo had made comments
that “he had the . . . [c]ity [m]anager . . . under his thumb.” Wood does not, however,
indicate when these statements were made in relation to his termination and provides
no other information to support his assertion that the review by the city manager
would not be neutral.2 As we discussed above, the non-movant may not rely on
speculation or conclusions to overcome a movant’s prima facie showing. Buke, 2014-
NMCA-078, ¶ 21. In addition, affidavits or depositions containing hearsay are not

11
sufficient evidence of a fact . Seal v. Carlsbad Indep. Sch. Dist., 1993-NMSC-049,
¶ 14, 116 N.M. 101, 860 P.2d 743. We therefore cannot conclude that Wood
established that summary judgment was improper.
C. 	Procedural Due Process and the City
{16} 	We next turn to Wood’s argument that the district court erred in determining
that his procedural due process rights were violated. We understand this portion of
Wood’s argument to be directed at the dismissal of his claims against the City.
{17} 	To prevail in a 42 U.S.C. § 1983 claim against a government entity based on
conduct of a government official,
a plaintiff must show more than just that the entity’s agent violated the
plaintiff’s rights; the plaintiff must also demonstrate that the injury to the
plaintiff resulted from the execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy.
Niederstadt v. Town of Carrizozo, 2008-NMCA-053, ¶ 11, 143 N.M. 786, 182 P.3d
769 (internal quotation marks and citation omitted). In other words, “municipal
liability under 42 U.S.C. § 1983 is limited to deprivations of federally protected rights
caused by action taken pursuant to official municipal policy of some nature.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 471 (1986) (internal quotation marks and citation
omitted). We note, however, that “municipal liability may be imposed for a single
decision by municipal policymakers . . . where the decisionmaker possesses final

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authority to establish municipal policy with respect to the action ordered.” Id. at 480-
81.
{18} 	Wood has not alleged an injury that resulted from the City’s policy or custom.
Moreover, even if we were to assume Trujillo is a policymaker, as we have discussed
above, Wood has failed to demonstrate that Trujillo’s actions were unconstitutional.
We therefore conclude that Wood has not demonstrated that the district court’s grant
of summary judgment in favor of the City was in error.
III. 	CONCLUSION
{19} 	For the reasons stated above, we conclude that the district court’s grant of
summary judgment was proper. Accordingly, we affirm.
{20} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

LINDA M. VANZI, Judge

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