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Rivero v. Board of Regents of University of New Mexico

United States District Court, D. New Mexico

December 22, 2016

DENNIS P. RIVERO, M.D., Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO d/b/a UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER, Defendant.

          ORDER DENYING MOTION TO DISMISS

          William P. Lynch, United States Magistrate Judge.

         Dennis Rivero, M.D., with leave of Court, filed an Amended Complaint against the Board of Regents of the University of New Mexico d/b/a University of New Mexico Health Sciences Center (“UNM”) for violations of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. and 790 et seq. (Doc. 28.) UNM filed a motion to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. (Doc. 33.) Dr. Rivero opposes the motion. (Doc. 39.) Being fully advised on these matters, I deny UNM's motion to dismiss.

         Standard of Review

         Under Rule 12(b)(6), courts consider whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss under Rule 12(b)(6), courts consider “the complaint as a whole, along with the documents incorporated by reference into the complaint” and construe all well-pled allegations in the light most favorable to the plaintiff. Nakkhumpun v. Taylor, 782 F.3d 1142, 1146 (10th Cir. 2015) (citations omitted). “Well-pled” means that the allegations are “plausible, non-conclusory, and non-speculative.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts “disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)).

         A court may resolve a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense, such as the statute of limitations or asserted immunity, when the facts establishing the defense are apparent on the face of the complaint. Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965).

         Background

         The following background information is taken from Dr. Rivero's Amended Complaint. (Doc. 28.) For purposes of the motion to dismiss, I assume that these facts are true. This Background section does not constitute any formal factual findings in this case.

         Dr. Rivero is an orthopedic surgeon. He joined the medical faculty at the University of New Mexico Health Sciences Center (“HSC”) in 1992 and was promoted to full professor of medicine in the Department of Orthopedic Surgery and Rehabilitation in July 2005. Within the Department of Orthopedic Surgery and Rehabilitation, Dr. Rivero served as the Chief of Adult Reconstruction. HSC is part of the University of New Mexico.

         In 2003, Dr. Rivero had a dispute with Dr. David Pitcher, Chief Medical Officer, over admissions procedures for a patient. Dr. Rivero filed an official complaint with HSC about the interaction, and the results of an internal investigation determined that subsequent interactions between Drs. Rivero and Pitcher required the presence of a third party.

         In early 2007, Dr. Rivero reduced his employment at HSC from full-time to approximately 5% time, or roughly one day per month, in order to pursue opportunities in private practice in Oklahoma. On June 24, 2007, Dr. Rivero wrote to Dr. Robert Schenck, Chairman of the Department of Orthopedic Surgery and Rehabilitation and Dr. Rivero's immediate supervisor, and stated that he wished to return to 75% time or full-time employment at HSC. Dr. Schenck told Dr. Rivero that he would be returned to full-time employment.

         The return to full-time employment did not happen. From June 2007 to December 2010, HSC delayed and withheld approval for Dr. Rivero to return to full-time employment. During this period, Dr. Rivero continued to work one day per month at HSC and continued to work in private practice in Oklahoma.

         Also during this period, Dr. Rivero made inquiries at HSC about the delay. He was eventually informed that “there were concerns as to his ‘professionalism' . . . that . . . related to supposed impoliteness as perceived by members of the [HSC] administration, many of whom had never communicated with Dr. Rivero.” (Id. at 4.) Dr. Rivero has never received any disciplinary or adverse employment action at HSC.

         “Dr. Bailey (Associate Dean for Clinical Affairs), Dr. Pitcher, Dr. Robert Katz (Vice President of Clinical Affairs), and Dr. Paul Roth (Chancellor of [HSC]) refused to give Dr. Rivero more hours, based primarily on misinformation and hyperbole provided by Dr. Pitcher.” (Id. at 5.)

         In the fall of 2010, Dr. Rivero filed a complaint with the Academic Freedom and Tenure Committee, alleging that his request to return to full-time employment was given inadequate consideration. An investigator for this committee, Dr. Victor Strasburger, interviewed Drs. Bailey and Pitcher. Drs. Bailey and Pitcher described Dr. Rivero as “disruptive, ” but “all 23 of Dr. Rivero's ...


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