Human resources & employment law cumulative case briefs

proceeding under the New Mexico Public Employee Bargaining Act (PEBA), NMSA 1978,

§§ 10-7E-1 to -26 (2003, as amended through 2005), and a resolution called the University

of New Mexico Labor Management Relations Resolution, Section 15, Negotiations and

Impasse Resolution (the LMRR). The parties are National Union of Hospital and Health

Care Employees District No. 1199 New Mexico, AFL-CIO, CLC (the Union) and the Board

of Regents of the University of New Mexico (the University) acting for its hospital (the

Hospital).

under the New Mexico Uniform Arbitration Act, NMSA 1978, §§ 44-7A-1 to -32 (2001).

The Hospital sought to vacate the award claiming that the arbitrator lacked jurisdiction to

enter it and either engaged in misconduct or exceeded his authority in conducting the

impasse arbitration. The Hospital also claimed that an employee bonus contained in the

award would require the Hospital to violate public policy. The district court vacated the

award and denied the Union’s motion for reconsideration, and the Union brought this appeal.

We affirm the district court’s order, judgment, and decree vacating the award and

determining it to be of no further effect.
* * *
{41} We affirm the district court. We hold that the arbitrator exceeded his authority and

also engaged in misconduct in the manner in which he conducted the arbitration. We further

hold that the $500 bonus provision in the selected offer required the Hospital to violate

public policy and it was therefore impermissible, invalidating the entire package.

This was the employee’s fifth ADA OCD claim in a brief period of time, and the second time before Judge Herrera. She dismissed this one because he was fired for falsifying time records, not for filing a discrimination claim - he failed to present evidence of:

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  how his OCD prevented caring for himself, thinking, or concentrating,
  
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  how major life activities such as eating, driving, grooming, or household maintenance were affected by his OCD,
  
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  any way that his condition prevented him from working a full day when he finally reported for work, and
  
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  that his termination for falsifying recodes was a pretext.
  

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  Colorado at-will employment law holds that an offer of permanent employment merely means “an indefinite general hiring terminable at the will of either party” [which seems to be essentially illusory]. Under those circumstances, it is possible for an employer to obtain a summary judgment in its favor.
  
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  On the other hand, under New Mexico law a jury decides from the totality of the circumstances of the representations if an empoloyer’s oral statement of permanent employment might be found to supersede a written at-will acknowledgment, and consequently a summary judgment probably would be next to impossible for an employer to obtain.
  

estoppel is asserted must have been a party in or in privity with a party to the original action;

and (2) the two cases must have concerned the same ultimate issue or fact, which was (a)

actually litigated, and (b) necessarily determined in the first suit.” DeLisle v. Avallone, 117

N.M. 602, 605, 874 P.2d 1266, 1269 (Ct. App. 1994). The party invoking the doctrine of

collateral estoppel bears the burden of establishing a prima facie showing. Id. at 606, 874

P.2d at 1270. Once a prima facie showing is made, the burden shifts to the party opposing

collateral estoppel to show that the party was not afforded a full and fair opportunity to

litigate the issue in the prior proceeding. Id. The doctrine of collateral estoppel applies to

arbitration awards if the “arbitration affords opportunity for presentation of evidence and

argument substantially similar in form and scope to judicial proceedings.” Rex, Inc. v.

Manufactured Hous. Comm., 119 N.M. 500, 505, 892 P.2d 947, 952 (1995) (internal

quotation marks and citation omitted). However, “because arbitration proceedings tend to

be more informal than judicial proceedings, with fewer procedural safeguards, [a] court

should be particularly vigilant in examining whether the arbitration proceeding provided the parties with a full and fair opportunity to litigate the issues.” Id.

1. 
   Initial discrimination - the employee’s burden of proof
   
   1. 
      member of a protected class,
      
   2. 
      qualified for the position at issue,
      
   3. 
      suffered an adverse employment action,
      
   4. 
      was performing satisfactorily at that time, and
      
   5. 
      employer did not eliminate that position after firing;
      
2. 
   the employer must then demonstrate a legitimate non-discriminatory reason for the firing; and
   
3. 
   the employee must prove that the employer’s reason was a pretext to cover up discrimination, e.g., suspect, flimsy, not credible, etc.
   

A police chief, Deutsch, used money from city petty cash to buy a notebook computer. Hale, a private citizen, wrote a letter to Jordan, city manager, about this. Deutsch sued Hale for defamation in small claims court. Jordan attended the trial as an observer, not as a witness. Shortly after the trial Jordan fired Deutsch for testifying untruthfully in the small claims court trial. Deutsch then sued Jordan in federal court for retaliating against him for exercising his right of free speech when he testified during the small claims court trial, stating that in the small claims court trial he was testifying to clear his name. The trial court dismissed the claims against the city, but allowed the claim against the city manager, Jordan, to proceed. Jordan appealed on the ground that she is entitled to qualified immunity because (1) Mr. Deutsch’s testimony was not on a matter of public concern, and (2) even if it was, Ms. Jordan’s reasonable belief that he had lied overrode his free-speech interests. The appellate court stated that . . .

Illustrative; not controlling law. Announcing an intention to return to active duty may trigger USERRA coverage. In this unusual extension of USERRA coverage, the employee was not yet on active duty, he merely said he intended to return to it. Vega-Colon v. Wyeth Pharmaceuticals, No. 09-1861 (1^st Cir., 10/28/10); 2010 U.S. App. LEXIS 22277; http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1861P.01A. [enhanced lexis.com version]

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  manually handling batteries weighing from 5 to 80 pounds;
  
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  occasionally lifting (with assistance) batteries weighing from 80 to 120 pounds;
  
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  moving and carrying pallets weighing up to 40 pounds, and
  
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  continuous standing, walking, or riding a truck during a 12-hour shift.
  

1. 
   substantial continuity of the same business operations;
   
2. 
   use of the same plant;
   
3. 
   continuity of the work force;
   
4. 
   similarity of jobs and working conditions;
   
5. 
   similarity of supervisory personnel;
   
6. 
   similarity in machinery, equipment, and production methods;
   
7. 
   similarity of products or services; and
   
8. 
   ability of the predecessor to provide relief.
   

1. 
   Whether Kinney's prior and prospective FMLA leaves played a role in Holiday's decision to terminate her employment. If Kinney could "show that Holiday used her 2005 and 2006 FMLA-covered absences, in conjunction with its awareness that her illness might require more medical leave in the future, as a "negative factor" in its decision to fire her", then she had a valid FMLA claim.
   
2. 
   Further, there was the question of the validity of the “carding” incident because there was "conflicting evidence as to whether Kinney's first tobacco-sale violation occurred at all," which was a fact question to be resolved by a jury.
   

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  Holiday fired Kinney shortly after her cancer's recurrence;
  
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  Holiday managers involved in the termination decision were aware of her cancer; and
  
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  The same managers discussed whether Kinney had taken FMLA leave shortly before she was terminated.