IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · OFFICER SHELDON, ALBUQUERQUE POLICE...

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Janan v. Shelden et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ANNE JANAN,

Plaintiff,

vs. No. _______________________

OFFICER SHELDON,

ALBUQUERQUE POLICE DEPARTMENT,

RICHARD J. BERRY, Mayor of Albuquerque,

CITY OF ALBUQUERQUE,

SUSANNA MARTINEZ, Governor of the State of New Mexico,

THE NEW MEXICO LAW ENFORCEMENT ACADEMY BOARD,

NEW MEXICO WORKFORCE SOLUTIONS, and

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Defendants.

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1441(b), 1442, and 1446(a), Officer Gerald Shelden (incorrectly

spelled and styled by Plaintiff as “Sheldon”), the Albuquerque Police Department, Richard J.

Berry, and the City of Albuquerque (“City”) (collectively “City Defendants”), give Notice of

Removal to this Court of the civil action filed in the Second Judicial District of New Mexico,

County of Bernalillo, Cause No. D-202-CV-2014-07839, by Anne Janan (“Plaintiff”) against the

Defendants, and as grounds states:

1. On December 19, 2014, the Complaint for Breach of Contract, Discrimination in

Hiring, for Personal Injury, Damages, Appeals of the EEOC and New Mexico Workforce

Solutions’ Decisions was filed in this action. The state court record is submitted herewith.

2. The claims stated against the Defendants in this case are subject to the jurisdiction

of this Court pursuant to 28 U.S.C. §1331 and are removable pursuant to 28 U.S.C. §1441(a)

because the Complaint is founded on a claim or right arising under the Constitution, treaties, or

Case 1:15-cv-00059-SCY-KBM Document 2 Filed 01/21/15 Page 1 of 4

laws of the United States. Specifically, the Complaint alleges that the Albuquerque Police

Department’s physical agility requirements for Police Officers and Police Service Aides are

discriminatory, and “adversely impact the hiring opportunities for women and people over 40 in

the hiring process, as well as the disabled.” Compl. ¶ 28. Plaintiff alleges a violation of “’the

laws enforced by the EEOC’” (Compl. ¶ 26), and Title VII of the Civil Rights Act of 1964, as

amended.

3. Additionally, under 28 U.S.C. § 1442(a)(1), a civil action commenced against an

agency of the United States may be removed to federal court. Willingham v. Morgan, 395 U.S.

402, 406 (1969). Defendant Equal Employment Opportunity Commission is an agency of the

United States.

4. Further, to the extent, if any, defendant complains of common law torts against an

agency of the United States, this action is controlled by the Federal Tort Claims Act, 28 U.S.C.

§§ 1346 and 2671, and arises under federal law for purposes of 28 U.S.C. § 1331.

5. An actual controversy exists because the Complaint alleges the Defendants

deprived Plaintiff of her civil rights pursuant to Title VII of the Civil Rights Act of 1964, as

amended.

6. This Notice is filed in this Court within thirty days after receipt of the Summons

and Complaint on the Defendant, as required by 28 U.S.C. §1446(b).

7. Pursuant to 28 U.S.C. §1446(d), copies of the Notice of Removal will be

promptly given to all adverse parties and a copy of the Notice of Removal will be filed with the

Clerk of the Second Judicial District Court, County of Bernalillo, State of New Mexico.

8. All Defendants consent to this removal.

9. A copy of all process and pleadings that have been served upon the City

Defendants are attached in this Notice of Removal.

10. City Defendants hereby demands a trial by a six (6) person jury on all issues

contained herein.

Respectfully submitted:

CITY OF ALBUQUERQUE

Jenica L. Jacobi

Interim City Attorney

/s/Melissa M. Kountz

Melissa M. Kountz

Samantha M. Hults

Marie Legrand Miller

Kellie J. Garcia

Assistant City Attorneys

P. O. Box 2248

Albuquerque, NM 87103

Phone: (505) 768-4500; Fax: (505) 768-4440

Certificate of Service

I certify that on this 21st day of January, 2015, I served the following by the method and at the

address shown for each person.

U.S. Mail and e-mail to:

Anne Janan

9125 Mescalero Rd. NE

Albuquerque, NM 87102

annejanan@live.com

E-mail to:

Ned Fuller

Lara White-Davis

NM General Services Department

Risk Management Division

Legal Bureau

PO Box 6850

Santa Fe, NM 87502-6850

ned.fuller@state.nm.us

lara.white-davis@state.nm.us

Richard Word

Office of the Attorney General

New Mexico Law Enforcement Academy

PO Box 1508

Santa Fe, NM 87504-1508

rword@nmag.gov

Elizabeth A. Garcia

Attorney, Office of the General Counsel

NM Department of Workforce Solutions

PO Box 1928

Albuquerque, NM 87103-1928

ElizabethA.Garcia@state.nm.us

Laura Ardito

General Attorney

Office of Legal Counsel

Equal Employment Opportunity

Commission

131 M Street, NE

Washington, DC 20507

laura.ardito@eeoc.gov

Karen F. Grohman

Assistant United States Attorney

P.O. Box 607

Albuquerque, New Mexico 87103

(505) 346-7274

Karen.Grohman@usdoj.gov

/s/ Melissa M. Kountz

Melissa M. Kountz

Case 1:15-cv-00059-SCY-KBM Document 2-1 Filed 01/21/15 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · OFFICER SHELDON, ALBUQUERQUE POLICE...

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