Suit Seeks To Aid Temps

ALBUQUERQUE JOURNAL, N.M. | DAN MCKAY | Mon, Sep 13, 9:41 AM

Sept. 13--Sammy Kidd spent 10 years as a city-paid boxing coach in Albuquerque community centers.

He usually worked just under 40 hours a week, all year long. At one point, he said, he even served as acting manager of the Northside Boxing Program and had keys to city buildings and vehicles.

But none of that made him a permanent employee, according to the city.

Kidd was fired in 2004, without an explanation. The city considered him a temporary or seasonal employee, despite his lengthy tenure, and that meant he had no right to appeal his termination.

Six years later, Kidd's classaction lawsuit against the city alleging he and others were improperly treated as temporary employees without the normal job protections available to other workers is still pending in federal court.

"I think it was unfair," Kidd said last week in an interview. "I was doing payrolls, weekly reports. I was doing everything a full-time manager does and getting $7 an hour. I had employees under me.

"One day I walked into work -- it was the day before my birthday -- and they presented me a letter saying, 'Thank you for your services. They're not needed any more.' That was it."

Kidd's suit examines City Hall's reliance on temporary and seasonal employees, who handle everything from staffing city pools to helping children cross the street on their way to school. They aren't supposed to work more than two years. Kidd's suit, how- ever, seeks relief on behalf of about 200 people who worked longer than that or otherwise argue they were improperly considered temporary employees.

The case predates Mayor Richard Berry's administration by several years, having started when Martin Chavez was mayor.

City Attorney Rob Perry, who took office in April, said the city has taken the position that Kidd "always knew that he was a seasonal employee."

The city tried to accommodate him by transferring him to new jobs as the old, temporary ones expired, Perry said. Eventually, however, the programs in which he worked were ended, Perry said.

"I just think it's hard to conceive that people have positions for life when they're clearly told they're a seasonal, temporary employee," Perry said. "There was good faith on the part of the city" in the treatment of Kidd.

Even if a jury ruled Kidd was entitled to be a regular employee, damages should be limited, Perry said.

That's because the judge in the case ruled that the remedies available to Kidd, should he win, are notice of potential termination, a hearing and an award representing his salary between the date he was fired and the date he would have been fired if the proper process had been followed. In other words, Kidd would have the right to be treated like any other regular, protected employee.

The suit centers on City Hall's use of temporary employees. Personnel regulations say a temporary employee must be terminated within two years of the initial hiring. They're supposed to learn of their termination date when they are first hired. Seasonal employees are permitted to work only nine months over a one-year period.

The goal is to give the city flexibility to hire and fire staffers as needs fluctuate. There's no reason, for example, to pay lifeguards when the pools are closed.

But in Kidd's case, he was never forced to sit out or leave city employment -- at least until 2004, when the city purged many of its temporary workers. Before that, two-year cycles came and went for Kidd with no change in status.

In court documents, U.S. District Judge M. Christina Armijo summarized the legal question as this: Did the city essentially make Kidd a regular employee with the right to expect continued employment?

Kidd isn't the only one interested in the answer. About 200 other temporary or seasonal employees who worked for more than two years are part of Kidd's class-action suit, his attorney said.

Armijo offered few hints as to what the ultimate outcome of the case might be. She noted in a 2008 opinion that Kidd, in a deposition, couldn't remember anyone ever telling him that his position would be made permanent or that he could stay employed if he did the job well.

But she also pointed out that the city apparently did not treat him as a temporary employee, with dismissal after two years as required by city rules.

"Mr. Kidd, who worked for the city from 1994 until 2004, would have experienced as many as five two-year period expirations," Armijo wrote.

Perry said the city currently is complying with its regulations on how seasonal and temporary employees must be treated, even when it's not convenient. He noted that some crossing guards weren't available in time for school this year because the city had to ensure they worked only nine months in a 12-month period.

"We're doing everything we can to scrupulously follow the rules," Perry said.

Paul Livingston, Kidd's attorney, said it's not clear when there will be a resolution.

"We believe they deserve de facto permanent status," Livingston said in an interview. "The city believes they are entitled to nothing. It's pretty much a stalemate."

Kidd, meanwhile, is growing frustrated at not only his dismissal from the city, but also the length of time it has taken to resolve the case in court.

Kidd is now unemployed, after having been laid off from a job installing oxygen equipment for a health care company. He still donates time to teach boxing.

"It's been six years," Kidd said. "I'm still waiting."