Mark FERNANDEZ; Don Abreu, Plaintiffs-Appellants,
v.
MORA-SAN MIGUEL ELECTRIC CO-OPERATIVE, INC.; Fоurth Judicial District Attorney's Office; Lucero Professional Services, Ltd.; Carl Armijo, in his individual and official capacities, Defendants-Appellees, and
Mora County Sheriff's Office; Ernesto Gonzales; Levi Alcon; Yvette Alcon, Defendants.
No. 05-2130.
United States Court of Appeals, Tenth Circuit.
August 29, 2006.
COPYRIGHT MATERIAL OMITTED Submitted on the briefs:* Michael E. Mozes, Law Offices of Michael E. Mozes, P.C., Albuquerque, NM, for Plaintiff-Appellants.
Jerry A. Walz, Walz and Associates, Cedar Crest, New Mexico, for Defendants-Appellees Fourth Judicial District Attorney's Office and Carl Armijо.
David A. Rammelkamp, Elizabeth A. Heaphy, Rammelkamp, Muehlenweg & Cordova, P.A., Albuquerque, NM, for Defendant-Appellee Lucero Professional Services, Ltd.
Before BRISCOE, McKAY, and BRORBY, Circuit Judges.
BRISCOE, Circuit Judge.
Mark Fernandez and Don Abreu appeal the district court's pre-trial disposition of certain claims in this suit against polygraph examiner Lucero Professional Services (LPS), the New Mexico Fourth Judicial District Attorney's Office (DAO), the DAO's chief inspector Carl Armijo, and Fernandez and Abreu's fоrmer employer Mora-San Miguel Electric Cooperative, Inc. (the Co-op). Specifically, both Fernandez and Abreu appeal the district court's grant of summary judgment to LPS under the Employee Polygraph Protection Act (EPPA), 29 U.S.C. § 2001-2009. Abreu also appeals (1) the district court's grant of judgment on the pleadings to Armijo and the DAO on his state-law tort claim of conspiracy to violate constitutional rights, and (2) the district court's grant of summary judgment tо the Co-op and Armijo on his 42 U.S.C. § 1983 claim that they violated his constitutional and statutory rights. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
I.
Fernandez and Abreu were employed by the Co-op. During the weekend of April 11-13, 2003, one of the Co-op's air compressors disappeared. The Co-op notified the Mora County Sheriff's Office (MCSO), and Officer Ray Cordova began an investigation. Because the air compressor had disappeared from a yard with а locked gate that was not forced, the investigation focused on the Co-op's employees. Near the end of June, the DAO became involved in the investigation.
When the investigation failed to yield results, the Co-op decided to have suspected employees take polygraph tests. In early July, the Co-op's attorney, Nicholas Leger, contacted Eric Lucero, the principal of LPS, and requested that LPS cоnduct polygraph examinations of some of the Co-op's employees. Lucero stated that he could not test employees for the Co-op, but that he would administer polygraph tests to Co-op employees if requested in conjunction with a criminal investigation.
Within a few days, the DAO's chief investigator, Carl Armijo, called Lucero and requested LPS conduct polygraph tests of the Co-op's employees. The day before the examinations, Leger sent Lucero a memorandum describing the facts known to the Co-op and setting the schedule for the examinations. Lucero then administered polygraph tests to four Co-op employees, including Fernandez and Abreu. Fernandez and Abreu failed the examinations.
Lucero sent his report to Armijo and Cordova, and he sent LPS's bill to Armijo. Leger contacted Lucero and told him that the DAO would not pay fоr the tests. He told Lucero that the Co-op would pay for the tests and that Lucero should send him an invoice. When Leger asked for the results of the tests, Lucero told him that he could not disclose the test results to the Co-op. He suggested that Leger talk to Armijo, because the DAO might release the test results to the Co-op as a crime victim. The DAO provided the results of the tests to the Co-op, which then terminated Fernandez and Abreu's employment.
Fernandez and Abreu sued the Co-op, LPS, Armijo, the DAO, and the MCSO under the EPPA, 42 U.S.C. § 1983, and New Mexico state law. The district court disposed of the majority of the claims prior to trial, dismissing some and granting summary judgment on others. The EPPA claims against the Co-op went to trial, and a jury found in favor of Fernandez and Abreu. Fernandez and Abreu now appeal the pre-trial disposition of their EPPA claims against LPS, and Abreu appeals the pre-trial disposition of his tоrt claims against the DAO and Armijo and his § 1983 conspiracy claim against Armijo and the Co-op.
II.
A.
First, both Fernandez and Abreu assert that LPS violated the EPPA. The district court granted summary judgment to LPS on the grounds that the EPPA only covers "employers" and that LPS was not an "employer" as defined by that statute. Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter оf law." Fed.R.Civ.P. 56(c). This court reviews "the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs.,
The EPPA restricts the conduct of, and provides remedies against, an "employer" regarding the use of lie detector tests. See 29 U.S.C. §§ 2002, 2005. The statute defines "employer" as "any person acting direсtly or indirectly in the interest of an employer in relation to an employee or prospective employee." Id. § 2001(2). Under the regulations, a polygraph examiner generally is not considered an "employer." See 29 C.F.R. § 801.2(c) ("A polygraph examiner either employed for or whose services are retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with resрect to the examinees."). "Ordinarily," of course, does not mean "never."
Other courts have adopted the "economic reality" test to determine whether a polygraph examiner is an "employer" for purposes of the EPPA. This test focuses on whether "as a matter of economic reality, that person or entity exerts some degree of control over the employer's compliance with EPPA." Rubin v. Tourneau, Inc.,
The Fifth Circuit summarized four factors courts have considered in applying the economic reality test:
[D]istrict courts have considered whether the examiner (1) decided thаt a polygraph examination should be administered; (2) decided which employee would be examined; (3) provided expertise or advice to the employer regarding compliance with EPPA's requirements, or the employer relied on the examiner to ensure compliance; or (4) decided whether the examined employee would be subjected to disciplinary action, or merely reported the results of the рolygraph examination to the employer.
Calbillo v. Cavender Oldsmobile, Inc.,
It is undisputed that LPS had no role in the decision to terminate Fernandez and Abreu's employment, so appellants' arguments focus on the other three factors. First, appellants argue that, by directing the Co-op how to get the tеsts taken, LPS decided that polygraphs should be taken. Appellants' suggestion is rather attenuated. The record shows that it was the Co-op, then Armijo, who contacted LPS about taking polygraphs. This indicates that it was the Co-op and/or Armijo who decided polygraphs should be taken. This factor does not support imposing liability on LPS.
Appellants also suggest that LPS advised the Co-op how employees should be selected for thе polygraphs. Again, this inference is too attenuated to support liability. The record indicates that Lucero stated that he could not test Co-op employees as Leger originally requested, and that he would perform tests if requested by law enforcement and the individuals to be tested were identified by law enforcement. There is no suggestion that Lucero suggested or identified the specific employees to be tested, directly or indirectly. This situation is distinguishable from the examiner having a role in selecting the particular employees to be tested. Cf. Rubin,
Finally, appellants assert that Lucero advised the Co-op about compliance with the EPPA and the circumstanсes under which the Co-op employees should be polygraphed. In support, they primarily rely on Lucero's comments to Leger that the tests would have to be taken in conjunction with a law enforcement investigation and that the Co-op might be able to get the results of the tests from the DAO.
We have found only one case discussing the "advice" factor in any detail. In Rubin v. Tourneau, Inc., the examiner, who was also an investigator, was hired to investigatе missing inventory.
The only other case allowing a claim against a polygraph examiner to proceed because the examiner may have exercised "some degree of control over the employer's compliance with the EPPA" does not explain exactly what the examiner did. James v. Professionals' Detective Agency, Inc.,
In contrast to the situation in Rubin, Lucero did not make any assurances to the Co-op about EPPA compliance, and LPS was not hired to ensure EPPA compliance. Notably, Lucero's contacts with the Co-op were through the Co-op's attorney, whose duty it was to advise the Co-op about its legal responsibilities. See Calbillo,
Appellants contend that Lucero should have known the arrangement was a sham to allow the Co-op to circumvent the EPPA, arguing "from the very beginning LPS knew that the Cooperative was the driving force behind the polygraphs. LPS then worked with the Cooperative to satisfy the employer's request for these polygraphs." Aplt. Br. at 17. So long as LPS did not involve itself sufficiently to be considered an "employer," however, whether it knew or should have known that the arrangement was a sham is not relevant to its liability under the EPPA. Simply put, if LPS is not an "employer," it is not subject to EPPA liability. An examiner is not necessarily liable merely because a particular examination violated the EPPA. See Calbillo,
For these reasons, the district court did not err in granting summary judgment to LPS on appellants' EPPA claims.
B.
Abreu asserted a state-law tort claim that Armijo, the DAO, and the MCSO conspired to violate his constitutional rights. As relevant on appeal, the district court granted judgment on the pleadings to Armijo and the DAO, holding that the state had not waived its sovereign immunity against such claims. Specifically, the court determined that the New Mexico Tort Claims Act's (NMTCA) waiver of sovereign immunity for the actions of a "law enforcement officer" did not apply to Armijo. This court reviews a defense motion for judgment on the pleadings de novo. Soc'y of Separationists v. Pleasant Grove City,
The NMTCA preserves sovereign immunity against tort claims for state governmental entities and public employees acting in the scope of their duties, except as specifically waived. N.M. Stat. § 41-4-4(A). It waives sovereign immunity for tort claims involving the conduct of a "law enforcement officer." Id. § 41-4-12. The statute defines "law enforcement officer" as "a full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor." Id. § 41-4-3(D). Abreu's claim against the DAO must rest on its potential liability for Armijo's conduct, because an agency cannot be "a full-time salaried public employee" as required by the definition of "law enforcement officer." See Dunn v. McFeeley,
Abreu argues that the district court "merely applied a mechanical and stiff interpretation" of the NMTCA definition, and that "[s]uch an interpretation flies in the face of the functional approach adopted by the New Mexico courts." Aplt. Br. at 21. He contends Armijo and the DAO "performed routine, police-like functions in investigating the missing compressor." Aplt. Br. at 20.
The New Mexico approach pays more deference to the statutory definition than Abreu implies. The New Mexico courts take the definition as their starting point, examining whether the particular defendant's primary duties fit into any of the statutory criteria. In Anchondo v. Corr. Dep't,
Further, even if a public employee is authorized to exercise some of the traditional functions of law enforcement officers, he or she does not necessarily come under the waiver provision. In Dunn v. New Mexico,
The New Mexico appellate court has held, in other circumstances, that non-attorney employеes of the DAO were not "law enforcement officers." See Abalos v. Bernalillo County Dist. Att'y's Office,
Looking solely at the pleadings, judgment for appellees was warranted, as Abreu's complaint merely states that Armijo is the "chief investigator" for the DAO. Aplt.App. at 71. It does not allege that Armijo is a "law enforcement officer" or describe his duties to show that he fits within § 41-4-12's waiver. Cf. Dunn v. McFeeley,
Even if we were to look beyond the pleadings, the record does not indicate that Armijo is a "law enforcement officer" for purposes of the NMTCA. Armijo testified that his "main job is to assist the attorneys in preparation for preliminary hearings, grand juries, trial, assist different agencies with their investigations, help on search warrants." Aplt.App. at 448. He supervises the assignments of a deputy and two investigators. Id. at 449. He also accepts assignments from district attorneys, the DAO office manager, the director of the pre-prosecution diversion program, and DAO finance people. Id. These facts do not support an inference that Armijo's primary duties are holding persons in custody, maintaining public order (except in the sense of putting criminals behind bars that Coyazo rejected,
Armijo's investigatory duties appear closest to a traditional law enforcement activity. Looking at the pleadings, such duties arguably were invoked by the complaint's description of Armijo's position as "chief investigator." We decline to hold, however, that investigations alone are sufficient to make an employee a "law enforcement officer" for NMTCA purposes. The statute does not mention a primary duty of investigating crimes, instead focusing on other duties. Moreover, while criminal investigations are a duty of police officers, see N.M. Stat. § 29-1-1, they can also be undertaken by private investigators and other private parties. Thus, investigations qualitatively differ from the duties described in the statutory definition and the law-enforcement functions identified by the New Mexico courts (i.e., making arrests, custоdy of pre-trial detainees), which are generally reserved to police officers.
Because New Mexico has not waived its sovereign immunity, the district court did not err in granting judgment on the pleadings to Armijo and the DAO on Abreu's state-law tort claim.
C.
Finally, Abreu asserted that the Co-op and Armijo conspired to take the polygraphs and thereby violated his constitutional and statutory rights. The district court granted summary judgment to appelleеs on this claim. As stated, we review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Simms,
Abreu argues that the district court erred in stating he had presented insufficient evidence to create a genuine issue of material fact. Our review indicates, however, that there was no error in the district court's evaluation. Abreu seems to be advocating a "joint action" theory of § 1983 liability. See Sigmon v. CommunityCare HMO, Inc.,
On appeal, Abreu provides no record cites for the evidence that he claims creates a genuine issue of material fact. In addition, he largely relies on a general statement, saying, "[n]either time nor space allow for a complete rendition of the facts Abreu genuinely disputed and upon which the district court inappropriately interpreted in granting Armijo summary judgment on the § 1983 conspiracy claim." Aplt. Br. at 25. These types of unsupported argument do not justify reversal. See Gross v. Burggraf Constr. Co.,
Even if Abreu had properly supported his argument, the facts do not appear sufficient for a jury to find a single, unlawful plan. The evidence might establish a common goal of taking polygraphs, but not necessarily of taking polygraphs for the Co-op in violation of the EPPA.
III.
The judgment of the district court is AFFIRMED.
Notes:
Notes
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Contrary to appellants' argument,Rubin involved a motion to dismiss for lack of subject matter jurisdiction, not summary judgment.