                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 20 2001
                                      TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 JEREMIAS SILVA,

                Plaintiff-Appellee,
           v.                                           No. 99-2263
 AMERICAN FEDERATION OF                               D. New Mexico
 STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, a national labor union,             (CIV 98-579-JC/KBM (ACE))

                Defendant-Appellant,

 and

 LUIS ARRELLANO and EVELINA
 MARQUEZ,

                Defendants.




                              ORDER AND JUDGMENT        *




Before KELLY , HENRY , Circuit Judges, and      SHADUR, District Judge.   **




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.


        The Honorable Milton I. Shadur, United States District Judge for the
       **

Northern District of Illinois, sitting by designation.
                                I. INTRODUCTION

      This matter is before the court on an appeal from the district court’s denial

of several motions filed by appellant American Federation of State, County and

Municipal Employees (“AFSCME”). AFSCME’s motions sought judgment as a

matter of law, a new trial, and remittitur. The plaintiff, Jeremias Silva, worked at

one time as a union organizer for AFSCME. He brought several claims against

AFSCME: (1) breach of employment contract, (2) intentional infliction of

emotional distress, (3) violations of the Americans with Disabilities Act, 42

U.S.C. §§ 12101-12213, based upon AFSCME’s failure to make reasonable

accommodations for his physical conditions, and (4) retaliatory discharge for Mr.

Silva’s contacts with law enforcement officers about incidents occurring at the

union. The district court granted AFSCME’s motion to dismiss the claims for

breach of contract and intentional infliction of emotional distress. At the close of

Mr. Silva’s case, the court granted AFSCME’s motion for judgment as a matter of

law on his ADA claim. On Mr. Silva’s remaining claim (for retaliatory

discharge), the jury awarded $624,940 in compensatory damages and $1,000,000

in punitive damages.

      Mr. Silva’s employment with AFSCME is governed by a collective

bargaining agreement, which states in part:

      Any disciplinary action or measure imposed upon an employee may be
      processed as a grievance through the regular grievances procedure.

                                         -2-
AFSCME contends that the collective bargaining agreement provides Mr. Silva

with the exclusive procedure to redress his claims, and that he is thus not

permitted to bring an action for the tort of retaliatory discharge.

                           II. NEW MEXICO CASE LAW

      In Silva v. Albuquerque Assembly & Distribution Freeport Warehouse

Corp., 738 P.2d 513, 515 (N.M. 1987), the New Mexico Supreme Court reiterated

the narrowness of the tort of retaliatory discharge for employees who are covered

by an employment contract. The Silva court approved a jury instruction

explaining that the jury could find either a breach of contract or retaliatory

discharge, but not both. The New Mexico Supreme Court held:

      A retaliatory discharge cause of action was recognized in New Mexico
      as a narrow exception to the terminable at-will rule; its genesis and
      sole application has been in regard to employment at-will. The express
      reason for recognizing this tort, and thus modifying the terminable
      at-will rule, was the need to encourage job security for those employees
      not protected from wrongful discharge by an employment contract. . .
      . Obviously, if an employee is protected from wrongful discharge by an
      employment contract, the intended protection afforded by the retaliatory
      discharge action is unnecessary and inapplicable.
             Our holding on this issue is also consistent with recent federal
      court interpretations of New Mexico law in cases addressing the scope
      and applicability of a retaliatory discharge action. . . . We decline to
      extend the tort of retaliatory discharge beyond the limited context in
      which it has been recognized.

738 P.2d at 515 (internal quotation marks and citations omitted).

      Several years later, in Gandy v. Wal-Mart Stores, Inc., 872 P.2d 859 (N.M.

1994), the same court addressed the question of whether a plaintiff may bring a

                                          -3-
retaliatory discharge claim when the plaintiff alleges that he or she was

discharged from employment in retaliation for seeking relief under the New

Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to -15 (Repl. Pamp. 1991).

Ms. Gandy, the plaintiff, filed a discrimination complaint with the Human Rights

Division of the New Mexico Department of Labor (the “Division”) alleging that

her employer had discriminated against her because of a medical condition. She

was later terminated from her position. Ms. Gandy responded by filing another

complaint with the Division, this time alleging retaliatory discharge pursuant to §

28-1- 7(I) of the Human Rights Act. Section 28-1-7(i)(2) prohibits employers

from “engag[ing] in any form of . . . reprisal . . . against any person who has . . .

filed a complaint . . . under the Human Rights Act.” Ms. Gandy later filed the

breach of contract/retaliatory discharge action in federal court and withdrew her

Human Rights complaint.

      Ms. Gandy’s employer, noting that the purpose of the tort of retaliatory

discharge is to provide a remedy where an employee is otherwise unprotected,

argued that the tort could not be grounded on violation of a public policy

declaration embodied in a legislative enactment where that legislative enactment

provided its own remedial scheme. The Gandy court, however, rejected this

argument by relying on the fact that the grievance procedure under the Human

Rights Act was permissive rather than mandatory. The Gandy court explained:


                                           -4-
             Under [the New Mexico statute], the words ‘shall’ and ‘will’ are
      mandatory and ‘may’ is permissive. Based on this canon of statutory
      construction, the grievance procedure in the Act appears to be
      permissive and not mandatory. . . .
             Although we acknowledge that legislative silence is at best a
      tenuous guide to legislative intent, the fact remains that there is no
      language in the Human Rights Act stating that its remedies are intended
      to be exclusive. Absent such language, we decline to infer a legislative
      intent to preempt tort claims unless such intent is clearly demonstrated
      by the comprehensiveness of the administrative scheme and the
      completeness of the remedy it affords. . . .
             Although the Human Rights Act provides an efficient, sensible,
      and comprehensive scheme for remedying violations of the rights it
      protects, the remedies it affords differ from those potentially available
      under the tort of retaliatory discharge. . . . Punitive damages are
      sometimes recoverable in tort actions but are not recoverable under the
      Human Rights Act. Because the language of the Act is permissive and
      contains no declaration that the remedies it provides are exclusive, and
      because the remedies provided in the Act are not the same as the
      remedies available in a tort action for retaliatory discharge, we hold that
      the legislature did not intend the Act’s remedies to be exclusive.

872 P.2d at 861-62 (internal quotation marks, citations, and footnotes

omitted).

                                   III. ANALYSIS

      In this case, Mr. Silva’s employment is covered by a collective bargaining

agreement that provides a grievance and arbitration procedure. Mr. Silva

contends the procedures are permissive and allow him to pursue the tort claim.

AFSCME counters that the procedures are exclusive and mandatory and therefore

foreclose Mr. Silva’s action for retaliatory discharge.




                                          -5-
      The district court initially determined that the New Mexico courts, through

cases like Gandy, have developed a common law exception to the employment at-

will doctrine that allows for a retaliatory discharge action. While we found the

district court’s determination plausible, we were uncertain as to the state of New

Mexico law in this field. Thus, because this case presented important questions

of undecided New Mexico law and because resolution of these questions was

determinative of this appeal, we certified the following questions to the New

Mexico Supreme Court:

      (1) Does the New Mexico Supreme Court’s holding in Gandy v. Wal-
      Mart Stores, Inc., 872 P.2d 859 (N.M. 1994), allow a plaintiff who is
      not an at-will employee to pursue an action for the tort of retaliatory
      discharge under the public policy exception outlined in Silva v.
      Albuquerque Assembly & Distribution Freeport Warehouse Corp.,
      738 P.2d 513, 515 (N.M. 1987), when the plaintiff has an alternative
      remedial grievance procedure available under a collective bargaining
      agreement?
      (2) If the answer to Part (1) is yes,
              (a) what is the impact of language in the collective
              bargaining agreement that designates the agreement’s
              remedy as the exclusive remedy available to the
              plaintiff?
              (b) what is the impact of language in the collective
              bargaining agreement that designates the agreement’s
              remedy as the nonexclusive remedy available to the
              plaintiff?
      (3) If the answer to Part (1) is yes and if the collective bargaining
      agreement’s alternative remedial scheme is not facially exclusive or
      permissive,
              (a) what is the impact of the evident intent of the parties
              to agreement to preempt tort claims based upon the
              comprehensiveness of the administrative scheme and the
              completeness of the remedy the scheme affords?

                                         -6-
      The New Mexico Supreme Court answered the first question in the

negative, holding that the Gandy decision does not alter the fact that “a plaintiff

who is not an at-will employee [may not] pursue an action for the tort of

retaliatory discharge under the public policy exception” to the at-will doctrine.

Silva v. American Fed’n of State, County & Mun. Employees, __ P.2d __ (N.M.

2001), slip. op. at 1. Consequently, the New Mexico Supreme Court did not need

to address the second question.

      Accordingly, the judgment of the district court is REVERSED and the case

is REMANDED for entry of judgment consistent with the New Mexico Supreme

Court’s decision. In addition, the appellant’s motion to file a supplemental

appendix is DENIED, and the appellee’s motion to impose sanctions is DENIED.


                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




                                          -7-
