United States District Court, D. New Mexico
DENNIS P. RIVERO, M.D., Plaintiff,
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.
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.
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)).
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).
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.
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.
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.
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.
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.
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
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.)
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