231 F.3d 691 (10th Cir. 2000)
JEREMIAS SILVA, Plaintiff-Appellee.v.AMERICAN FEDERATION OF STATE, COUNTY   AND MUNICIPAL EMPLOYEES, a national labor union, Defendant-Appellant,andLUIS ARELLANO, EVELINA MARQUEZ, Defendants.
No. 99-2263
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
October 27, 2000.

Before KELLY, HENRY, Circuit Judges and SHADUR, District Judge.*
CERTIFICATION OF QUESTION OF STATE LAW
Henry, Circuit Judge.


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The United States Court of Appeals for the Tenth Circuit, pursuant to the provisions of The Uniform Certification of Questions of Law Act, N.M. Stat. Ann.  39-7-1 to 39-7-13, and  34-2-8 N.M. Stat. Ann. and N.M.R. App. P. 12-607, desires to submit to the Supreme Court of New Mexico a request that the Court exercise its discretion to accept the following important certified questions of New Mexico law, which may be determinative of this case now pending in this court, and as to which it appears that there is no controlling precedent in the Supreme Court of New Mexico:


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(1) Does the New Mexico Supreme Court's holding in Gandy      v. Wal-Mart Stores, Inc., 117 N.M. 441, 872 P.2d 859      (N.M. 1994), allow a plaintiff who is 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., 106 N.M. 19, 738 P.2d 513, 515      (N.M. 1987), when the plaintiff has an alternative      remedial grievance procedure available under a      collective bargaining agreement?


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(2) If the answer to Part (1) is yes,


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(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?


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(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?


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(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.


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(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?


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We do not mean to limit by our statement of these questions the scope of the New Mexico Supreme Court's scope    or its consideration of the issues involved.

I. BACKGROUND

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This matter is before the court on an appeal from the denial of appellant American Federation of State, County and Municipal Employees ("AFSCME") AFSCME's motions for judgment as a matter of law, for a new trial, and for remittitur. The plaintiff, Mr. Silva, was formerly 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. However, on his retaliatory discharge claim, a jury awarded him $ 624,940.00 in compensatory damages and $ 1,000,000.00 in punitive    damages.


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Mr. Silva's employment with AFSCME is covered by a collective bargaining agreement, which states in part:


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


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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

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In Silva v. Albuquerque Assembly & Distribution Freeport Warehouse Corp., 106 N.M. 19, 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. In Silva, the plaintiff alleged (1) breach of an implied contract based upon a personnel manual and (2) retaliatory discharge. The jury found for Ms. Silva on the breach of contract claim and against her on the retaliatory discharge claim.


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In upholding an instruction that the jury could find either a breach of contract or retaliatory discharge, but not both, the Silva court held:


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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.


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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.


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


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Five years later, in Gandy v. Wal-Mart Stores, Inc. 117 N.M. 441, 872 P.2d 859 (N.M. 1994), the same court addressed the question of whether a plaintiff could bring a retaliatory discharge claim when she alleges that 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 filed a discrimination complaint with the Human Rights Division of the New Mexico Department of Labor (the Division) alleging that her employer had discriminated her because of a medical condition. She was later terminated from her position. Ms. Gandy then filed another complaint with the Division alleging retaliatory discharge pursuant to Section 28-1-7(I) of the Human Rights Act, which prohibited any employer from "engaging in any form of... reprisal... against any person who has... filed a complaint... under the Human Rights Act." Ms. Gandy subsequently filed the breach of contract/retaliatory discharge action in federal court and withdrew her Human Rights complaint.


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Ms. Gandy's employer, Wal-Mart Stores, Inc., argued that the tort of retaliatory discharge could not be grounded on violation of a public policy declaration embodied in a legislative enactment that provided its own remedial scheme, because the purpose of recognizing the tort is to provide a remedy where the employee is otherwise unprotected. In determining that the    grievance procedure under the Human Rights Act was permissive and not mandatory, the Gandy court stated:


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Under N.M.S.A. 1978. Section 12-2-2(I) (Repl. Pamp.      1988), entitled "Rules of construction," "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....


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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....


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Although the Human Rights Act provides an efficient,      sensible, and comprehensive scheme for remedying      violations of the rights it protects. see  28-1-10      to-12 (relating, respectively, to procedures for      grievances, hearings, and enforcement), 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.


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872 P.2d at 861-62 (internal citations and footnotes omitted).


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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 foreclose Mr. Silva's action for retaliatory discharge.

III. CONCLUSION

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This court concludes that this proceeding involves important questions of state law under the statutes of New Mexico and that it is appropriate that the Supreme Court of New Mexico be afforded an opportunity to decide them. It appears that these questions may be determinative of the appeal    now pending before this court and that there is no controlling precedent. This court accordingly concludes that it should submit these certified questions to the New Mexico Supreme Court. In its discretion, that court may answer the questions pursuant to Rule 12-607 of the New Mexico Rules of Appellate Procedure.


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Therefore, the undersigned presiding judge of the panel submits this certification to the Supreme Court of New Mexico, in accordance with Rule 12-607 of the New Mexico Rules of Appellate Procedure. The Clerk of this court is directed to transmit a copy of this certification to counsel for all parties to the proceedings in this court. The Clerk shall also submit to the Clerk of the Supreme Court of New Mexico a certified copy of this certification order, together with copies of the briefs filed in this court, and either the original or a copy of the record as filed in this court by the Clerk of the United States District Court for the District of New Mexico. We greatly appreciate the consideration of this request.


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The appeal is ordered STAYED pending resolution of the certified questions herein.



Notes:


*
 The Honorable Milton I. Shadur, United States Senior District Judge for the Northern District of Illinois, sitting by designation.


