Collado v. City of Albuquerque

2002 NMCA 048, 45 P.3d 73, 132 N.M. 133
CourtNew Mexico Court of Appeals
DecidedMarch 13, 2002
Docket21,911
StatusPublished
Cited by19 cases

This text of 2002 NMCA 048 (Collado v. City of Albuquerque) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collado v. City of Albuquerque, 2002 NMCA 048, 45 P.3d 73, 132 N.M. 133 (N.M. Ct. App. 2002).

Opinion

OPINION

BOSSON, Chief Judge.

{1} The City of Albuquerque appeals from a judgment against it ordering that Plaintiff, a Lieutenant in the Albuquerque Fire Department, be promoted to the rank of Captain and receive retroactive back pay and other benefits. The City argues that the trial court erred in finding that the City breached its employment contract with Plaintiff and awarding equitable relief in the form of retroactive promotion and back pay. We affirm the judgment of the trial court.

BACKGROUND

{2} The City’s Merit System Ordinance requires that the selection procedures for hiring, promoting, and discharging of employees must be “valid, fair, sound and free of considerations, such as race, ethnic background, sex, age, political affiliation and/or personal bias.” City of Albuquerque Personnel Rules and Regulations § 205. The merit system uses written tests, oral interviews, and performance examinations to determine an employee’s eligibility for promotion. Id. § 201. The City’s personnel rules provide that “careful and reasonable measures will be taken to insure fair administration of examinations.” Id. § 202.1.

{3} In 1993, Plaintiff was one of fifty-one lieutenants who competed for promotion to Captain. The promotion process had two components: a written examination given in July, and an “assessment examination” given a few weeks later. This second component included an oral interview and a performance examination. Only those candidates who received a sufficiently high score on the written examination were eligible for the assessment process. The written test was offered at two different times. Plaintiff attended the first session.

{4} During the first session of the written examination, a power failure caused the lights to go out for approximately three minutes and to flicker a couple of times thereafter. According to the testimony, the power outage resulted in a significant disruption of the testing process. Despite being instructed to stop working on their tests and remain in their seats, not all the candidates obeyed. One candidate reportedly got up from his seat and left the room. Other candidates seated near an open doorway apparently had sufficient light to continue working on their tests. Some of the candidates talked to one another during the blackout. Several candidates, including Plaintiff, testified that these events had an adverse effect on their ability to concentrate during the examination.

{5} After the lighting was restored, the candidates were given an extra five minutes to compensate for the disruption. At the end of the written examination period, one candidate was observed continuing to work on his test for an additional minute or two. Ultimately, that candidate was ranked number one on the promotion list.

{6} The second session of the written examination proceeded without incident. Overall, those candidates were more successful in proceeding to the assessment process. Although 77% of those in the second session scored high enough to become eligible for the assessment process, only 58% of those in the first session performed well enough to qualify. Several candidates complained to the City about the written examination, and recommended that the City reject these results and offer the test again under fairer conditions. The City refused.

{7} The assessment process had its own problems. Security was lax; participants were not monitored between exercises and were able to speak with one another and listen from the hallway during the assessment process. Some candidates allegedly had pre-existing relationships with one or more of the assessors. One exercise required the candidates to describe how they would respond to reports of smoke in the Bernalillo County Detention Center (BCDC), a building that was familiar to some, but not all, of the candidates. The same candidate who scored number one on the promotion list had previously worked at BCDC and would have been familiar with that building.

{8} Dr. Hornick, a public safety testing expert, testified that the disruptions in the first session of the written examination disadvantaged those candidates. It was his opinion that, after the power outage, the test should have been stopped and administered again at a later date. Dr. Hornick also emphasized the importance of appropriately monitoring candidates to avoid giving an unfair advantage to some. He testified that it was “uncommon” for an assessment exercise to concern a building that might be familiar to only some of the candidates. He also alluded to the appearance of impropriety when an assessor is personally familiar with a particular candidate. Dr. Hornick concluded that he had reviewed the test administration guidelines and found them “woefully inadequate.”

{9} Plaintiff was one of those who claimed injury from the testing process. Having attended the first session of the written examination, Plaintiff was affected by the power outage. Due to a scoring error on the written exam, Plaintiffs name was wrongly omitted from the initial list of those eligible for the assessment process. Believing he had failed the written test, Plaintiff discontinued his preparations. By the time the City corrected its mistake and notified Plaintiff that he was eligible for the assessment process, he had only two days to study.

{10} Following the written examination and the assessment process, those candidates whose cumulative scores were within the top 25% were declared eligible for promotion. The cutoff score was 62.94%. Plaintiffs cumulative score was 62.83%, 0.11% below the cutoff point, which excluded him from the promotion list. Dr. Hornick found minor rounding errors in the scoring process, which, according to his testimony, could have affected how Plaintiffs cumulative score compared in relation to the lowest ranking candidate who made the promotion list.

{11} In 1994, Plaintiff took another promotion exam, but did not pass. He testified that he had “[lost] faith in the [promotion] process,” and that his disappointment with the process had lessened his motivation to prepare for that subsequent examination. He did not take any additional exams for promotion.

{12} Plaintiff and other members of the Firefighter’s Union protested the 1993 promotion process in September of that year. In November 1993, Plaintiff and another candidate filed a complaint with the Albuquerque Labor Management Relations Board (Labor Board). In May 1996, the Labor Board determined that the testing process had been unfair and ordered Plaintiff placed on the promotion list. The City challenged that ruling, and in April 1997 the trial court overturned the Labor Board’s decision on jurisdictional grounds. In July 1996, about a month and a half after the City filed its trial court challenge of the Labor Board ruling, Plaintiff filed this lawsuit, alleging that the many irregularities in the promotion process constituted a breach of the City’s employment contract with Plaintiff.

{13} Following a bench trial in June 2000, the trial court held that the City’s Merit System Ordinance, together with its personnel rules, constituted an employment contract between Plaintiff and the City, which the City breached by failing to provide a “valid, fair and sound” testing process.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Touma v. Krise
New Mexico Court of Appeals, 2024
Found. Minerals v. Montgomery
New Mexico Court of Appeals, 2023
Strobel v. Rusch
D. New Mexico, 2020
Velasquez v. Regents of Northern N.M. Coll.
2021 NMCA 007 (New Mexico Court of Appeals, 2020)
Maestas v. Town of Taos
2020 NMCA 027 (New Mexico Court of Appeals, 2019)
Costa v. Brawley
New Mexico Court of Appeals, 2019
Star v. Sierra Los Pinos Prop. Owners Ass'n
New Mexico Court of Appeals, 2019
Hunt v. Central Consolidated School District
951 F. Supp. 2d 1136 (D. New Mexico, 2013)
State v. Vento
2012 NMCA 099 (New Mexico Court of Appeals, 2012)
Chisos LTD. v. JKM Energy, L.L.C.
2011 NMCA 026 (New Mexico Court of Appeals, 2011)
Diepholz v. Park Plaza
New Mexico Court of Appeals, 2010
MALISSA C. v. Matthew Wayne H.
2008 NMCA 128 (New Mexico Court of Appeals, 2008)
Allen v. Timberlake Ranch Landowners Ass'n
2005 NMCA 115 (New Mexico Court of Appeals, 2005)
H-B-S Partnership v. Aircoa Hospitality Services, Inc.
2005 NMCA 068 (New Mexico Court of Appeals, 2005)
Aspen Landscaping, Inc. v. Longford Homes of New Mexico, Inc.
2004 NMCA 063 (New Mexico Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 048, 45 P.3d 73, 132 N.M. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collado-v-city-of-albuquerque-nmctapp-2002.