May 30, 2019- Jose F. Valencia v. Santa Fe Police Officers Association, No. A-1-CA-35831

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOSEF.VALEN CIA,
3 	Plaintiff-Appellant,
4 	v. 	No. A-1-CA-35831
5 	SANTA FE POLICE OFFICERS
6 ASSOCIATION, MARK BARNETT,
7 and ALAN LOPEZ,
8 	Defendants-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 	Sarah M. Singleton, District Judge
11 	Jose F. Valencia
12 	Santa Fe, NM
13 	Pro Se Appellant
14 	Sanchez, Mowrer & Desiderio, P.C.
15 	Armand D. Huertaz
16 Frederick M. Mowrer
17 Albuquerque, NM
18 	for Appellees
19
20 	MEMORANDUM OPINION
21 	VARGAS, Judge.
22 	{I} 	Plaintiff Jose F. Valencia appeals the district court' s order granting summary
23 	judgment in favor of Defendants Santa Fe Police Officers Association (the Union),
Court of Appeals of New Mexico
Filed 5/30/2019 11:10 AM

1 Mark Barnett, and Alan Lopez, and dismissing the matter. Concluding there to be
2 no genuine issues of material fact for trial, we affirm.
3 I. 	BACKGROUND
4 	{2} 	Until his termination in February 2010, Plaintiff was employed by the Santa
5 Fe Police Department, during which time he was a member of the Union. On
6 February 10, 2010, the Santa Fe City Manager notified Plaintiff of his decision to
7 terminate Plaintiff from his position as a detective in the Santa Fe Police Department
8 for providing inconsistent statements during an internal affairs investigation of
9 alleged misconduct.
10 	{3} 	In the Union's collective bargaining agreement (CBA) with the City of Santa
11 	Fe (the City), Section 34 provides that "[i]f the [Union] is dissatisfied with the
12 decision 	of 	the 	City 	Manager 	with 	regards 	to 	suspensions, 	demotions, 	or
13 	terminations, it may appeal the decision by serving a written demand for arbitration
14 pursuant to the Arbitration provision 	of Section 35." Further, "[a]n employee
15 	dissatisfied with the decision of the City Manager with regards to disciplinary action
16 	other than suspensions, demotions or terminations may appeal the decision at the
17 cost to the employee by serving a written demand for arbitration pursuant to the
18 	Arbitration provision of [S ]ection 3 5." Section 35 of the CBA provides the process
19 	for filing informal grievances and, in case the grievance is not resolved at the
20 informal grievance level, formal grievances. If the grievance is not resolved at the
2

1 formal grievance level either, "the grievance may be submitted to final and binding
2 arbitration by the 	[Union] 	(but not by the individual employee)[.]" The 	CBA
3 provides that the Union "has complete discretion as to whether it will demand
4 	arbitration or accept the City Manager's response."
5 {4} 	The Union's bylaws state that the Union "shall establish a program of legal
6 assistance benefits to be administered by the [Union's Executive Board (the Board)]
7 in order to reduce the burden of legal fees and expenses incurred by members for the
8 conduct of their defense in proceedings arising out of, or relating to, the performance
9 	of their duties." The bylaws further clarify that the Union "hereby reserves the right
10 to determine if and when a demand for arbitration is appropriate, feasible and
11 	economically justified with regards to defensibility of a given case [using a scoring
12 	system] based on" (1) the severity of the violation, (2) the employee's disciplinary
13 	history, and (3) mitigating circumstances surrounding the violation.
14 	{5} 	Following the grievance process, Plaintiff, on February 12, 2010, wrote to
15 	Adam Gallegos, a member of the Board, requesting that the Union "submit a demand
16 for arbitration on [his] behalf, pursuant to the arbitration provision of [S]ection 35
17 	of the CBA." He went on to state that "[i]f you do not respond to this email, it will
18 	be assumed that the [Union] has chosen to deny me union representation in this
19 regard." 	The 	Board 	scheduled 	a 	meeting 	on 	February 	16, 	2010, 	to 	consider
20 Plaintiff's request. Defendants Lopez and Barnett, as the Union's then-President and
3

1 former 	President, 	respectively, 	recused 	themselves 	from 	the 	February 	16
2 proceedings as they were the subjects of allegations made by Plaintiff regarding
3 "improper acquisition and use of a cell phone by Union members." Following the
4 meeting, the Board, using the scoring system established in the Union's bylaws,
5 voted to deny Plaintiffs request. Gallegos wrote to Plaintiff, informing him "that the
6 [Union] has voted unanimously not to provide [him] with the representation at
7 arbitration per [his] request."
8 	{6} 	Rather than requesting that the Union file for arbitration on his behalf but at
9 his expense, Plaintiff wrote to the City Manager, demanding arbitration "pursuant to
10 	Section 34 of the [CBA.]" However, the City declined to arbitrate the matter with
11 	Plaintiff because the Union had declined to demand arbitration on his behalf.
12 	{7} 	Plaintiff filed the present action alleging claims for breach of contract, tortious
13 	interference with contractual relations, fraud, and breach 	of the duty to fairly
14 represent. The district court granted summary judgment in favor of Defendants,
15 	dismissing all of Plaintiffs claims. This appeal followed.
16 	II. 	DISCUSSION
17 A. 	Standard of Review
18 	{8} 	Summary judgment is appropriate where "the pleadings, depositions, answers
19 to interrogatories and admissions on file, together with the affidavits, if any, show
20 that there is no genuine issue as to any material fact and that the moving party is
4

1 entitled to a judgment as a matter of law." Rule 1-056(C) NMRA. "An issue of fact
2 	is 'genuine' if the evidence before the court considering the motion for summary
3 judgment would allow a hypothetical fair-minded factfinder to return a verdict
4 favorable to the non-movant on that particular issue of fact." Associated Home & RV
5 Sales, 	Inc. 	v. 	Bank of Belen, 	2013-NMCA-018, 123, 	294 P.3d 	1276 (internal
6 quotation marks and citation omitted). "We resolve all reasonable inferences in favor
7 of the party opposing summary judgment, and we view the pleadings, affidavits,
8 depositions, answers to interrogatories, and admissions in the light most favorable
9 to a trial on the merits." Id. 122 (internal quotation marks and citation omitted).
10 "Once the movant makes a prima facie case for summary judgment, the burden shifts
11 	to the party opposing the motion to demonstrate the existence of specific evidentiary
12 	facts that would require trial on the merits." Id. (alteration, internal quotation marks,
13 	and citation omitted). "A party may not simply argue that such evidentiary facts
14 	might exist, nor may it rest upon the allegations of the complaint." Romero v. Philip
15 	Morris Inc., 2010-NMSC-035, 110, 148 N.M. 713,242 P.3d280 (alteration, internal
16 	quotation marks, and citation omitted). "Rather, the party opposing the summary
17 judgment motion 	must adduce 	evidence to justify a trial 	on the 	issues." 	Id.
18 	(alteration, internal quotation marks, and citation marks omitted). "We review an
19 order granting summary judgment de novo." Associated Home & RV Sales, Inc.,
20 2013-NMCA-018, 1 22.
5

1 B. 	Breach of Contract
2 	{9} 	Plaintiff first argues the district court erred in granting summary judgment on
3 his breach of contract claim. Plaintiff argues that in exchange for his union dues, the
4 Union, under the CBA and its bylaws, guaranteed it would either represent him
5 during arbitration or at least demand arbitration on his behalf, creating a contract that
6 the 	Union 	breached 	when 	it 	declined 	to 	represent 	Plaintiff. 	As 	Plaintiff
7 acknowledged in the district court, the CBA in the present case "is a contract and
8 agreement entered into between the City and the [Union], not between the [Union]
9 and the members." See Callahan v. N.M Fed'n of Teachers-TV! (Callahan I), 2006-
10 NMSC-010, ~ 19, 139 N.M. 201, 131 P.3d 51 (noting a CBA "is a contract between
11 	a labor organization and the employer").
12 	{IO} 	Nonetheless, Plaintiff claims he is entitled to bring his breach of contract
13 	claim as a third-party beneficiary of the CBA. Plaintiff, however, is unable to
14 demonstrate a genuine issue of material fact for trial that he has an enforceable right
15 	under the CBA as a third-party beneficiary against the Union. "[T]o have an
16 	enforceable right as third-party beneficiaries against the [u]nion, at the very least the
17 	employer must have an enforceable right as promisee[,]" and the third party "would
18 	need to assert a promise that [the union] made to [the employer] and subsequently
19 broke." Id. ~ 21 (internal quotation marks and citation omitted). Although Plaintiff
20 argues the Union "guaranteed union representation" in arbitration, Plaintiff has cited
6

1 no specific provision of the CBA indicating any such promise the Union made to the
2 City that would entitle him to benefit from the agreement between the City and the
3 Union. SeeHeadleyv. Morgan Mgmt. Corp., 2005-NMCA-045, ,r 15, 137N.M . 339,
4 	110 P.3d 1076 ( declining to review an argument when the factual assertions are
5 made without citations to the record). Indeed, the CBA states that "[i]f the grievance
6 is not satisfactorily resolved [through the formal grievance procedure] , the grievance
7 may be submitted to final and binding arbitration by the [Union] (but not by the
8 individual employee)[,]" and that "[i]f the [Union] is dissatisfied with the decision
9 	of the City Manager with regards to ... terminations, it may appeal the decision by
10 serving a written demand for arbitration pursuant to the Arbitration provision of
11 	Section 35." (Emphasis added.) Section 35 of the CBA further provides that the
12 	Union "has complete discretion as to whether it will demand arbitration or accept
13 	the City Manager's response." As Plaintiff cannot cite any provision in the CBA
14 stating that the Union promised, unqualifiedly and without room for discretion, to
15 	represent its members or make demands on their behalf, we conclude the district
16 court did not err in granting summary judgment on the breach of contract claim
17 	stemming from the CBA.
18 	{11} 	With regard to the Union's bylaws, Plaintiff cites no legal authority from
19 which we can conclude a union's bylaws are a contractual agreement between a
20 union and an employer or a union and its members. See Curry v. Great Nw. Ins. Co.,
7

1 2014-NMCA-031, 128 ,320 P.3d 482 ("Where a party cites no authority to support
2 an argument, we may assume no such authority exists."). Regardless, the Union's
3 bylaws expressly state that the Union "hereby reserves the right to determine if and
4 when a demand for arbitration is appropriate, feasible and economically justified
5 with regards to defensibility of a given case [using a scoring system] based on" ( 1)
6 the 	severity 	of the violation, (2) the employee's disciplinary history, 	and (3)
7 mitigating circumstances surrounding the violation. In support of its motion for
8 summary judgment, Defendants submitted affidavits from members of the Union's
9 Board. The Board members stated in their affidavits that they considered Plaintiff's
10 request and used the scoring system to reach the decision to deny Plaintiff's request.
11 	The only evidence Plaintiff presented to rebut Defendants' evidence was virtually
12 	identical affidavits from three police officers and members of the Union who stated
13 	that the Board "clearly did not use [the] scoring criteria" because Plaintiff"was never
14 charged with a criminal act, arrested, indicted, arraigned or even questioned in a
15 	criminal investigation," and because no documentary evidence was presented for the
16 Board to review. However, these three officers were not members of the Board and
17 	did not attest that they were privy to the Board's evaluation of Plaintiff's request, or
18 	that their 	statements 	were 	based 	on 	personal 	knowledge. 	See 	Rule 	1-056(E)
19 (requiring affidavits based on personal knowledge to support a summary judgment
20 motion). As the bylaws reserve unto the Union the right to determine if and when a
8

1 demand for arbitration is appropriate and Plaintiff presented no competent evidence
2 rebutting the Board members' statements that they used the scoring system required
3 by the Union's bylaws, no hypothetical fair-minded factfinder could infer a breach
4 	of a contractual provision to either represent Plaintiff in arbitration or demand
5 arbitration on his behalf. See Associated Home & RV Sales, Inc., 2013-NMCA-018,
6 , 	23 ("An issue of fact is 'genuine' if the evidence before the court considering a
7 motion for summary judgment would allow a hypothetical fair-minded factfinder to
8 return a verdict favorable to the non-movant on that particular issue of fact." (internal
9 quotation marks and citation omitted)). Accordingly, we conclude the district court
10 	did not err in granting summary judgment on this claim.
11 	C. 	Tortious Interference With a Contract
12 	{12} 	Plaintiff next contends that the district court erred in granting summary
13 judgment on his claim for tortious interference with a contract. To establish tortious
14 	interference with a contract, a plaintiff must prove ( 1) the defendant "had knowledge
15 	of a contract"; (2) "performance of the contract was refused"; (3) the defendant
16 "played an active and substantial part in causing [the plaintiff] to lose the benefits of
17 the contract"; 	(4) "damages flowed 	from the breached contract"; 	and 	(5) the
18 	defendant 	"induced 	the 	breach 	without 	justification 	or 	privilege." 	Guest 	v.
19 Berardinelli, 2008-NMCA-144,, 32, 145 N.M. 186, 195 P.3d 353.
9

1 {13} 	Plaintiff argues the Union tortiously interfered with the CBA and the Union's
2 	bylaws in denying Plaintiff's request for union representation in arbitration and in
3 refusing to demand arbitration. Here, again, we emphasize the absence of a contract
4 to which Plaintiff was a party or third-party beneficiary on which Plaintiff could base
5 his claim. See id. (requiring that a plaintiff show that he lost the benefits of a contract
6 and that the defendant played an "active and substantial part in causing" the loss).
7 For these reasons, we conclude the district court did not err in granting summary
8 judgment on this claim.
9 D. 	Fraud
10 	{14} 	Plaintiff also argues the district court erred in granting summary judgment on
11 	his claims 	of fraud against Defendants. "The elements 	of fraud 	include ( 1) a
12 misrepresentation of fact, (2) either knowledge of the falsity of the representation or
J 3 	recklessness on the part of the party making the representation, (3) intent to deceive
14 and to induce reliance on the misrepresentation, and (4) detrimental reliance on the
15 	misrepresentation." Williams v. Stewart, 2005-NMCA-061, ~ 34, 137 N.M. 420, 112
16 P.3d 281.
17 {15} 	Plaintiff asserts the Union fraudulently represented it "would fairly represent
18 	its members in exchange for union dues collected, both in collective bargaining
19 proceedings and in disciplinary matters." Plaintiff, however, has failed to identify
20 and present evidence of a misrepresentation on the part of the Union to support his
10

1 fraud claim. Even if we assume Plaintiff is entitled to rely on the arbitration
2 provisions of the CBA and the bylaws despite the fact that he is not a party to either
3 document, both documents vest the Union with discretion to demand arbitration, and
4 as we previously concluded, Plaintiff has failed to rebut Defendants' evidence that
5 it applied the scoring criteria set out in the bylaws to determine it would not represent
6 Plaintiff or demand arbitration.
7 	{16} 	As 	to 	Lopez 	and 	Barnett, 	Plaintiff 	first 	argues 	they 	fraudulently
8 misrepresented themselves as Union officers in order to obtain cell phones. The
9 district court ruled that Plaintiff did not have standing to raise this claim. We review
10 the question of whether Plaintiff has standing de novo. See ACLU of N.M v. City of
11 	Albuquerque, 2008-NMSC-045, ,I 6, 144 N.M. 471, 188 P.3d 1222.
12 	{17} 	New Mexico's standing doctrine requires litigants to allege that "(1) they are
13 	directly injured as a result of the action they seek to challenge; (2) there is a causal
14 relationship between the injury and the challenged conduct; and (3) the injury is
15 	likely to be redressed by a favorable decision." Id. 	,I 1. To establish the first
16 requirement, i.e., an injury-in-fact, "[t]he litigant must show that he is imminently
17 threatened with injury, or, put another way, that he is faced with a real risk of future
18 	injury, as a result of the challenged action or statute." Am. Fed'n of State, Cty. &
19 Mun. Emps., Council 18 v. Bd. ofCty. Comm 'rs, 2016-NMSC-017, ,I 32,373 P.3d
20 989 (internal quotation marks and citation omitted). For the injury to be causally
11

1 related to the challenged conduct, "[t]he injury has to be fairly traceable to the
2 challenged action of the defendant, and not the result of the independent action of
3 some third party not before the court." Forest Guardians v. Powell, 2001-NMCA-
4 028, 125, 130 N.M. 368, 24 P.3d 803 (alterations, internal quotation marks, and
5 citation omitted).
6 	{18} 	Plaintiff asserts he has standing to challenge Lopez's and Barnett's efforts to
7 obtain cell phones because, he argues, his subsequent reporting of their actions gave
8 rise to the Union's decision to deny Plaintiffs request for representation. However,
9 Plaintiff fails to demonstrate how Lopez's and Barnett's allegedly fraudulent actions
10 	impacted 	the 	Union's 	decision, 	especially 	in 	light 	of 	the 	Board 	members'
11 	unchallenged affidavit statements that neither Lopez nor Barnett "played any role in
12 the ... Board's consideration of [Plaintiffs] request." We therefore conclude the
13 	district court did not err in finding Plaintiff lacked standing to assert a claim of fraud
14 against Lopez and Barnett on his own behalf.
15 	{19} 	A litigant may also bring an action on a third party's behalf if the litigant
16 demonstrates that "(l) the litigant has suffered an injury in fact, thus giving him or
17 	her a sufficiently concrete interest in the outcome of the issue in dispute; (2) the
18 	litigant has a close relation[ship] to the third party; and (3) there exists some
19 hindrance to the third[-]party's ability to protect his or her interests." ACLU ofNM,
20 2008-NMSC-045, 1 12 (internal quotation marks and citation omitted). To the extent
12

1 that Plaintiffs claim of fraud against Lopez and Barnett is made on the Union's
2 behalf, Plaintiff has not demonstrated whether there exists any hindrance to the
3 Union's ability to protect its interests, and he has therefore failed to establish his
4 standing on the Union's behalf.
5 	{20} 	Plaintiffs second claim of fraud against Lopez and Barnett is that they
6 fraudulently represented Barnett as the immediate past president of the Union so
7 Barnett could have a vote on the Board and thereby influence the Board's decision
8 to grant or deny Plaintiffs request for representation. In light of the Board members'
9 unrebutted affidavit statements that Lopez and Barnett recused themselves from the
10 proceedings in which Plaintiffs request for representation was considered, we
11 	conclude Plaintiff failed to establish a genuine issue of material fact for trial showing
12 	any detrimental reliance on their purported misrepresentations to the Board. See
13 	Williams, 2005-NMCA-061, ,r 34. We therefore conclude the district court did not
14 err in granting summary judgment on this claim.
15 	E. 	Duty of Fair Representation
16 	{2 t} 	Plaintiffs final argument is that the district court erred in granting summary
17 judgment on his claim that the Union breached its duty of fair representation to him.
18 	Unions owe their members a duty of fair representation. See Jones v. Int 'l Union of
19 	Operating Eng'rs, 1963-NMSC-l 18, ,r 20, 72 N.M. 322, 383 P.2d 571. A union's
20 "duty of fair representation extends beyond the bargaining table to the day-to-day
13

1 adjustment of working rules and the protection of employee' s rights secured by the
2 	[CBA]." Callahan I, 2006-NMSC-010, 19 (internal quotation marks and citation
3 omitted). As our Supreme Court explained:
4
5
6
7
8
The union has great discretion in handling the claims of its members,
and in determining whether there is merit to such claims which warrants
the union ' s pressing the claim through all of the grievance procedures,
including arbitration, and the courts will interfere with the union' s
decision not to present an employee's grievance only in extreme cases.
9 Jones, 1963-NMSC-118, 124. Thus, a union' s refusal or failure to take a grievance
10 to arbitration must be arbitrary, fraudulent, or in bad faith to constitute a breach of
11 	its duty of fair representation. Callahan I, 2006-NMSC-O 10, 1 11; Callahan v. N.M
12 Fed 'n of Teachers-TV! (Callahan JI), 2010-NMCA-004, ,-r 12, 147 N.M. 453, 224
13 	P.3d 1258.
14 	{22} 	We understand Plaintiff's duty of fair representation claim to be predicated on
15 	(1) 	Lopez's 	and Barnett's purported 	involvement in the 	Board' s 	decision, 	as
16 demonstrated "in the audio recording," and (2) the Board's inability, and therefore
17 	failure, to use the scoring system because the City had not yet provided the Union
18 	with evidence of Plaintiff's misconduct. We first note that Plaintiff did not make the
19 audio recording a part of the record. Thus, the only evidence before us bearing upon
20 Lopez' s and Barnett's involvement in the decision-making process was the Board
21 	members' affidavits stating that Lopez and Barnett recused themselves from the
22 proceedings in which Plaintiff's request for union representation was considered,
14

1 and played no role in the Board's consideration of Plaintiffs request. Moreover, as
2 we have stated above, the Board members expressly stated in their affidavits that
3 they used the scoring system to reach their decision to deny Plaintiffs request, and
4 as set out above, Plaintiff failed to submit competent evidence showing a genuine
5 issue of material fact for trial.
6 	{23} 	Thus, viewing the evidence in the light most favorable to a trial on the merits
7 and 	resolving 	all 	reasonable 	inferences 	in 	Plaintiffs 	favor, 	we 	conclude 	no
8 hypothetical fair-minded factfinder could determine the Union's decision not to
9 represent Plaintiff was arbitrary. See Howse v. Roswell lndep. Sch. Dist. , 2008-
10 NMCA-095, 18 , 144 N.M. 502, 188 P.3d 1253 ("A union's conduct can be classified
11 	as arbitrary only when 	it 	is 	irrational, when 	it 	is 	without a rational basis or
12 	explanation." (internal quotation marks and citation omitted)). Much as Plaintiff has
13 	failed to establish a claim of fraud against the Union, he has also failed to establish
14 a claim that the Union fraudulently denied his request for representation. 	See
15 	Callahan I, 2006-NMSC-010, 115 (explaining "that the breach of duty of fair
16 	representation requires a showing of arbitrary, fraudulent, or bad faith conduct").
17 Likewise, Plaintiff has not presented evidence from which a hypothetical fair-
18 	minded factfinder could conclude the Union's decision was made in bad faith. See
19 	id.; Associated Home & RV Sales, Inc., 2013-NMCA-018, 1 23. Accordingly, the
20 district court did not err in granting summary judgment on this claim.
15

1 {24} 	Because we conclude that Plaintiff failed to present evidence of a genuine
2 	issue of material fact for trial, we need not address whether Plaintiffs duty of fair
3 representation claim was timely filed.
4 III. 	CONCLUSION
5 	{25} 	For the foregoing reasons, we affirm the district court.
6 	{26} 	IT IS SO ORDERED.
7
8
9 WE CONCUR:
109·~
11 	J. MILES HANISEE, Judge
12 	~· ~13BRIANAH~
16