Ramirez v. State Children, Youth & Families Dep't

372 P.3d 497

2016 NMSC 016

Phillip G. RAMIREZ, Jr., Plaintiff–Petitioner

v. STATE of New Mexico CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Dorian Dodson, in her individual and official capacities, Ron West, in his individual and official capacities, Barbara Auten, in her individual and official capacities, Roger Gillespie, in his individual and official capacities, Ted Lovato, in his individual and official capacities, Tim Holesinger, in his individual and official capacities, Daniel Berg, in his individual and official capacities, Defendants–RespondentsandNew Mexico Attorney General's Office, Intervenor.

No. S–1–SC–34613.

Supreme Court of New Mexico.

April 14, 2016.

Vega Lynn Law Offices, LLC, Rosario D. Vega Lynn, Albuquerque, NM, Lorenz Law, Alice Tomlinson Lorenz, Albuquerque, NM, for Petitioner.

Hinkle Shanor, LLP, Ellen S. Casey, Jaclyn M. McLean, Loren S. Foy, Santa Fe, NM, for Respondent.

Hector H. Balderas, Attorney General, Robert David Pederson, Assistant Attorney General, Phillip Patrick Baca, Assistant Attorney General, Albuquerque, NM, for Intervenor.

Serra & Garrity, PC, Diane M. Garrity, Santa Fe, NM, Reserve Officers Association, Samuel F. Wright, Washington, DC, Law Office of Thomas G. Jarrard, PLLC, Thomas G. Jarrard, Robert Mitchell Attorney at Law, PLLC, Robert W. Mitchell, Spokane, WA, for Amicus Curiae Reserve Officers Association of America.

Office of the U.S. Attorney, Damon P. Martinez, U.S. Attorney, Manuel Lucero, Assistant U.S. Attorney, Albuquerque, NM, Department of Justice Civil Rights Division, Nathaniel S. Pollock, Washington, DC, for Amicus Curiae United States.

Garcia Ives Nowara, LLC, George L. Bach, Albuquerque, NM, for Amicus Curiae American Civil Liberties Union of New Mexico.

OPINION

NAKAMURA, Justice.

{1} We are called to decide whether a New Mexico National Guard member may assert a claim against the State as employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301 –4335 (2012). Phillip Ramirez, a member of the New Mexico Army National Guard, was employed by the New Mexico Children, Youth and Families Department (CYFD). In July 2005, Ramirez was ordered to federal active duty and deployed to Iraq. After Ramirez returned to work in New Mexico, CYFD terminated his employment. Ramirez sued CYFD, asserting a USERRA claim. A jury found that CYFD took adverse employment actions against Ramirez because of his military service and awarded him monetary damages. The Court of Appeals reversed the damages award, concluding that CYFD as an arm of the State was immune to Ramirez's USERRA claim. Ramirez v. State ex rel. Children, Youth & Families Dep't, 2014–NMCA–057, ¶¶ 1, 27, 326 P.3d 474, cert. granted, 2014–NMCERT–005, 326 P.3d 1112. We disagree. By enacting NMSA 1978, Section 20–4–7.1(B) (2004), the Legislature specifically extended “[t]he rights, benefits and protections” of USERRA to members of the New Mexico National Guard who are ordered to federal or state active duty for a period of thirty or more consecutive days. In so doing, the Legislature consented to suits brought against state employers who violate the protections guaranteed by USERRA. Accordingly, we reverse and reinstate the district court's judgment and damages award.

I. BACKGROUND

A. USERRA

{2} Congress enacted USERRA to encourage noncareer military service, to minimize disruptions in the lives and communities of those who serve in the uniformed services, and “to prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a)(1)–(3). Congress created USERRA pursuant to its War Powers set forth in Article I, Section 8, Clause 11 of the United States Constitution. Bedrossian v. Nw. Mem'l Hosp., 409 F.3d 840, 843–44 & n. 2 (7th Cir.2005). In pertinent part, USERRA provides:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

38 U.S.C. § 4311(a). USERRA's antidiscrimination rights apply to states as employers. See 38 U.S.C. § 4303(4)(A)(iii) (defining the term “employer” to include “a State”).

To enforce these guarantees, USERRA creates a private right of action for qualified service members to recover monetary damages against a state as an employer. 38 U.S.C. § 4323(a)(3), (d)(1)(B)–(C).

{3} Congress originally conferred jurisdiction on the federal district courts to adjudicate USERRA actions brought by private individuals against state employers. Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103–353, 108 Stat. 3149, 3165 (1994) (providing that “[i]n the case of an action against a State as an employer, the appropriate district court is the court for any district in which the State exercises any authority”) (current version at 38 U.S.C. § 4323(b) ). In Seminole Tribe of Florida v. Florida, however, the Supreme Court rejected Congress's authority under the powers granted by Article I of the United States Constitution to abrogate a state's sovereign immunity and subject nonconsenting states to suit in federal court. 517 U.S. 44, 72, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Because Congress enacted USERRA pursuant to its War Powers granted by Article I, Section 8, Seminole Tribe cast doubt on the federal courts' jurisdiction to adjudicate USERRA actions for monetary damages against states as employers. See, e.g., Palmatier v. Mich. Dep't of State Police, 981 F.Supp. 529, 532 (W.D.Mich.1997) (dismissing a USERRA claim against the Michigan entities for lack of jurisdiction).

{4} In 1998, Congress amended USERRA's jurisdictional provision concerning claims against state employers to provide that “[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.” Veterans Programs Enhancement Act of 1998, Pub. L. No. 105–368, § 211(a), 112 Stat. 3315, 3329 (1998) (codified as amended at 38 U.S.C. § 4323(b)(2) ). With this amendment, Congress sought to channel private USERRA claims against state employers to state courts. See 38 U.S.C. § 4323(b)(2). Given this background, Ramirez asserted a USERRA claim against CYFD in New Mexico district court.

B. Ramirez's USERRA claim

{5} Ramirez joined the New Mexico National Guard on August 22, 1991. On April 9, 1997, CYFD hired him as a surveillance officer. In November 2005, Ramirez was deployed to Iraq where he led a platoon charged with providing security escort to supply convoys. After his service in Iraq, Ramirez was transferred to Kuwait, where on May 13, 2006, he was promoted to Sergeant First Class. Ramirez returned to Gallup in November 2006.

{6} Ramirez resumed employment with CYFD on January 2, 2007 under the supervision of Daniel Berg and Tim Holesinger. Within a few months of his return, Ramirez's relationship with his supervisors deteriorated. Berg and Holesinger allegedly harassed and reprimanded Ramirez for being insubordinate. On May 8, 2008, CYFD terminated his employment.

{7} On May 19, 2008, Ramirez filed a lawsuit in the Eleventh Judicial District Court against CYFD, the former secretary of CYFD, Holesinger, Berg, and others at CYFD who supervised Ramirez, alleging a USERRA claim for monetary relief and other claims arising under federal and state law. CYFD moved to dismiss Ramirez's USERRA claim on grounds that, as a state agency, it was immune to USERRA claims brought by private individuals. The record indicates that the district court did not specifically rule on that motion and commenced a jury trial on, inter alia, Ramirez's USERRA claim. During trial, CYFD moved for a directed verdict with respect to the USERRA claim. The district court denied that motion. The jury found that Ramirez's military service was a motivating factor for the adverse employment actions taken by CYFD and returned a verdict in his favor, awarding him $36,000 in damages for lost earnings. The district court entered the judgment and award in favor of Ramirez.

{8} CYFD appealed, and the Court of Appeals reversed. Ramirez, 2014–NMCA–057, ¶ 1, 326 P.3d 474. In a divided opinion, the Court of Appeals held that CYFD, as a state agency, was immune to Ramirez's USERRA claim. See id. The Court of Appeals determined that the Legislature had not waived New Mexico's sovereign immunity with respect to Ramirez's USERRA claim because the Legislature had not spoken with “the requisite specificity required to determine ... [an] inten[tion] to waive the State's constitutional sovereign immunity to private USERRA suits for damages.” Id. ¶ 19. The Court of Appeals also held that CYFD was immune to Ramirez's USERRA claim because, in the absence of a state's consent to suit, Congress lacks the power to abrogate a state's sovereign immunity when acting pursuant to its War Powers. Id. ¶¶ 17–18.

{9} We granted Ramirez's petition for a writ of certiorari to consider whether New Mexico is immune to private USERRA suits for damages, exercising our appellate jurisdiction provided by Article VI, Section 3 of the New Mexico Constitution and NMSA 1978, Section 34–5–14(B) (1972). We also granted the New Mexico Office of the Attorney General's motion to intervene and allowed amicus curiae briefs from the United States, the Reserve Officers Association of America, and the American Civil Liberties Union of New Mexico.

II. DISCUSSION

A. State sovereign immunity should be determined at the outset of litigation

{10} The procedural history of Ramirez's USERRA claim in the district court gives us pause. In its motion to dismiss, CYFD argued that the USERRA claim should be dismissed for lack of subject matter jurisdiction because...