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Barreras v. State of New Mexico Corrections Department12/9/2002
The opinion filed on September 5, 2002, in this case is withdrawn and the following substituted therefor.
In this appeal we decide whether a state employee, discharged from employment in violation of the State Personnel Act, may elect to bypass an administrative appeal to the State Personnel Board (SPB), and instead file a lawsuit directly in district court on a theory of breach of implied contract of employment based on that same Personnel Act. We hold that when an employee's contractual claim arises from the State Personnel Act, as well as attendant rules, regulations, and agency personnel policies, the employee's remedies are limited to those set forth in the State Personnel Act. We affirm the district court's dismissal for failure to pursue the remedies set forth in the State Personnel Act. We also affirm the district court's decision to dismiss claims of retaliatory discharge and claims arising under the state constitution.
BACKGROUND
Plaintiffs Lawrence F. Barreras and Paul Haberling were discharged from their employment with the New Mexico Corrections Department (NMCD) in March 1997. Proceeding under the State Personnel Act, they filed appeals with the SPB. See NMSA 1978, ยงยง 10-9-1 to -25 (1961, as amended through 1999). Months later, after discovery had been completed and just three days before the SPB hearing was scheduled to begin, Plaintiffs filed a motion to stay the hearing or to withdraw their appeal without prejudice, so that they could proceed directly to district court. By filing a lawsuit in district court, Plaintiffs hoped to avoid potential limitations on the relief available from the SPB, and they looked as well to avoid the preclusive effect of a potential SPB ruling against them. Plaintiffs also alleged that the SPB was politically biased against them. The SPB denied Plaintiffs' motion, electing instead to dismiss the appeal with prejudice. Plaintiffs did not seek judicial review of that dismissal.
After dismissal of their SPB appeal, Plaintiffs filed this complaint in district court for breach of contract, retaliatory discharge, and violation of civil rights arising under the New Mexico Constitution. Before trial, the court granted Defendants' motion for summary judgment, concluding that Plaintiffs' claims were barred as a matter of law.
DISCUSSION
Standard of Review
All issues raised by Plaintiffs on appeal present questions of law arising out of undisputed facts that are set forth in Defendants' motion for summary judgment. As a result, we apply a de novo standard of review. Kropinak v. ARA Health Servs., Inc., 2001-NMCA-081, 4, 131 N.M. 128, 33 P.3d 679.
Breach of Implied Contract of Employment
Plaintiffs claim a breach of an implied contract of employment with NMCD, and base the substance of that claim on rights afforded state employees in the State Personnel Act, its related rules and regulations., and concomitant personnel policies of NMCD including an employee handbook. We agree with Plaintiffs that an implied contract of employment with a government employer may arise from writings that are sufficiently concrete in their representations, such as an employee handbook or a personnel policy. See Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029, 14-20, 121 N.M. 728, 918 P.2d 7 (holding that a government employer's written personnel policy created an implied-in-fact contract sufficient to waive statutory immunity from lawsuit). More to the point, this Court has previously noted that SPB rules, when considered together with a state agency employee handbook, have "attributes of an employee contract," because they control the employer
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