United States District Court, D. New Mexico
December 22, 2016
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
‘departmental colleagues want him back [and] . . . he
is an excellent surgeon.'” (Id.
(alterations in original).)
Rivero met with Dr. Schenck in December 2010 to discuss the
steps needed to return to full-time employment at HSC. At
this meeting, Dr. Rivero agreed to attend four counseling
sessions to improve patient interactions. Dr. Schenck sent
Dr. Rivero “Addendum No. 1 to Contract UNM School of
Medicine Faculty by and between the University of New Mexico
and Dennis P. Rivero, M.D.” (“Addendum”) in
February 2011. (Id. Ex. 1.) According to Dr.
Schenck, the Addendum reflected the agreement reached in
December 2010 to increase Dr. Rivero to full-time status over
the course of two years.
than reflecting the agreement that Dr. Rivero attend four
counseling sessions to improve patient interactions, the
Addendum required Dr. Rivero, as a condition of employment,
to submit to “a four-part psychiatric evaluation by a
board-certified psychiatrist acceptable to the Chair of the
Department of Orthopedics and Rehabilitation”-Dr.
Schenck-who would have “sole discretion” over
picking the psychiatrist. (Doc. 28 at 6.) Dr. Rivero would be
required to pay for these examinations and would be required
to comply with all treatment recommendations of the
psychiatrist. Additionally, the Addendum required Dr. Rivero
to submit progress reports from the psychiatrist to Dr.
Schenck and to the Associate Dean of Academic Affairs of HSC,
and to execute a consent form or other authorization
permitting the psychiatrist to provide reports and
recommendations directly to Dr. Schenck and the Associate
Dean of Academic Affairs of HSC. Any reports provided
directly to Dr. Schenck would be kept as part of Dr.
Rivero's medical staff file in the Office of Clinical
Affairs. Furthermore, if HSC determined that Dr. Rivero was
not in compliance with the terms of the Addendum, he would be
“deemed to have resigned his [HSC] faculty appointment
and his employment with the University effective 60 calendar
days” from written notice, and that this resignation
would not constitute dismissal, termination, or other
involuntary separation from HSC. (Id. at 7-8.)
Rivero had until April 10, 2011, to respond to the Addendum.
He sought counsel and then requested access to his personnel
file to determine the basis for HSC demanding the four-part
psychiatric examination. After Dr. Rivero made this request,
Dr. Schenck revoked the Addendum on April 5, 2011. HSC did
not provide any documents to support its requirement that Dr.
Rivero submit to psychiatric evaluation and treatment.
Dr. Rivero filed suit in New Mexico state court, a state
district judge found that HSC had illegally withheld the
requested documents and ordered production of those documents
in August 2013. HSC failed to comply. HSC has been producing
documents as recently as late 2015.
January 20, 2012, Dr. Rivero filed a charge of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) asserting violations of the ADA. The
EEOC did not pursue the matter, but issued Dr. Rivero a
right-to-sue notice on January 29, 2016. Dr. Rivero left HSC
entirely in May 2014.
Rivero brought the original complaint in this case on April
19, 2016. (Doc. 1.) For his Amended Complaint, Dr. Rivero
purports to bring one cause of action against UNM for
violations of the Rehabilitation Act, specifically, his
constructive discharge in May 2014.
Rehabilitation Act prohibits “otherwise qualified
individual[s]” from being “excluded from the
participation in, denied the benefits of, or . . . subjected
to discrimination under any program or activity receiving
Federal financial assistance” based solely on his or
her disability. 29 U.S.C. § 794(a). Section 794(d)
incorporates the “standards applied under title I of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12111
et seq.) and the provisions of sections 501 through 504, and
510, of the Americans with Disabilities Act of 1990 (42
U.S.C. 12201 to 12204 and 12210), as such sections relate to
employment.” As such, the Rehabilitation Act prohibits
an employer from requiring that an employee undergo a medical
examination and from making inquiries of an employee about
any disabilities or the nature and severity thereof, unless
the “examination or inquiry is shown to be job-related
and consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4). The remedies and procedures set forth in
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000d et seq., apply to claims under § 794. 29
U.S.C. § 794a(a)(2).
inartfully pled, Dr. Rivero brings two separate claims within
“Count One”: first, he lays out the elements to
allege a violation of the Rehabilitation Act when UNM
attempted to require psychiatric testing without a legitimate
purpose; and second, he alleges that he was constructively
discharged as a result of UNM's cumulative conduct. I
consider these claims separately.
filed a Rule 12(b)(6) motion to dismiss for failure to state
a claim for which relief can be granted. UNM asserts that
both parts of Dr. Rivero's claim are barred by the
applicable statute of limitations.
Rehabilitation Act does not identify a statute of
limitations. In the Tenth Circuit, Rehabilitation Act claims
are treated similarly to claims under 42 U.S.C. § 1983,
and the state personal injury statute of limitations is
read-in to the statute. Levy v. Kan. Dep't of Social
& Rehab. Servs., 789 F.3d 1164, 1172-74 (10th Cir.
2015) (holding that Rehabilitation Act claims are most
analogous with § 1983 claims and borrow the state's
general personal injury statute of limitations); see also
McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir.
2011) (holding that § 1983 claims borrow the general
personal injury statute of limitations from the jurisdiction
in which the claim arises). In New Mexico, general personal
injury claims-and thus Rehabilitation Act claims-must be
brought within three years. N.M.S.A. § 37-1-8 (1978).
a ‘limitations period commences when the plaintiff has
a complete and present cause of action.'” Green
v. Brennan, ___ U.S. ___, ___, 136 S.Ct. 1769, 1776
(2016) (quoting Graham Cty. Soil & Water Conservation
Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418
(2005)). “A cause of action does not become complete
and present for limitations purposes until the plaintiff can
file suit and obtain relief.” Id. (quoting
Bay Area Laundry & Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).
relevant question at this stage of the case is when Dr.
Rivero's claim under the Rehabilitation Act accrued. UNM
contends that Dr. Rivero's claim accrued between February
and April 2011, when HSC required Dr. Rivero to undergo
psychiatric testing as a condition precedent to increasing
his employment status. (See Doc. 33 at 6-8.) Dr.
Rivero counters that his claim accrued on May 21, 2014, when
he resigned because his resignation constituted the final
element to his constructive discharge claim. (Doc. 39 at
the psychiatric testing portion of the claim, neither party
provided particularly helpful briefing. However, this much is
clear: UNM contends that the claim accrued no later than
April 5, 2011, when UNM revoked the offer; and Dr. Rivero
asserts that the claim accrued on May 21, 2014, when he
formally resigned from UNM and was, according to him,
constructively discharged. Both parties are wrong.
794(d) incorporates the standards applied under the ADA,
specifically 42 U.S.C. § 12112(d)(4), which prohibits an
employer from requiring an employee to undergo a medical
examination unless the examination “is shown to be
job-related and consistent with business necessity.” 42
U.S.C. § 12112(d)(4). Here, UNM did require Dr. Rivero
to undergo medical testing-psychiatric testing, to be
precise-as a condition of increased employment. Additionally,
Dr. Rivero did not find out that UNM had no business
necessity for these requirements until affidavits were filed
by Drs. Trotter and Bailey in the state case which averred
that all of the documents had been produced, and Dr. Rivero
was able to determine that UNM had no evidence or documentary
support to substantiate its requirement of psychiatric
testing. (See generally Doc. 28 at 10-11.) The
affidavits were filed, respectively, on January 15 and
January 24, 2014. (Id.) Given that a plaintiff must
prove that his employer had no business necessity for the
required medical testing, Dr. Rivero's claim under §
794 for the psychiatric testing was not complete and
cognizable until January 2014. Given that the Rehabilitation
Act prohibits an employer from requiring medical testing only
when the employer lacks a business necessity for that
testing, 42 U.S.C. § 12112(d)(4), the lack of business
necessity is an element of the claim. Dr. Rivero only had
access to information sufficient to establish this element
beginning in January 2014. The statute of limitations has not
Rivero's constructive discharge claim presents a more
complicated question. “Constructive discharge occurs
when an employer deliberately makes or allows the
employee's working conditions to become so intolerable
that the employee has no other choice but to quit.”
MacKenzie v. City & Cty. of Denver, 414 F.3d
1266, 1281 (10th Cir. 2005) (citing Muller v. U.S. Steel
Corp., 509 F.2d 923, 929 (10th Cir. 1975)). “A
finding of constructive discharge depends upon whether a
reasonable person would view the working conditions as
intolerable, not upon the subjective view of the
employee-claimant.” Id. (citing Irving v.
Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir. 1982))
(footnote omitted). While “[t]he bar is quite
high” for proving constructive discharge, Garrett
v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir.
2002), the employee's resignation based on the
discriminatory conduct by the employer is an
essential-indeed, the defining-element of a constructive
discharge claim, Green, 136 S.Ct. at 1777. The
statute of limitations did not begin running until Dr. Rivero
in fact terminated his employment in May 2014.
also argues that Dr. Rivero failed to state a claim for
constructive discharge because constructive discharge is
viewed from an objective standpoint and the bar is quite
high. While UNM is correct that constructive discharge is
viewed from an objective standpoint, it has not pointed out
any case nor made any persuasive argument that a reasonable
professional would not remain working to resolve an issue
such as this and would feel that they had no choice but to
quit upon learning that their employer had no basis for
ordering psychiatric testing. Based on the facts alleged, a
reasonable jury could conclude that Dr. Rivero's working
conditions became intolerable to the point of constructive
discharge in early-to-mid 2014. Accordingly, I reject
UNM's contention that Dr. Rivero failed to state a claim
for constructive discharge.
explained herein, I find that the statute of limitations has
not run on Dr. Rivero's claims for violations of the
Rehabilitation Act based on psychiatric testing and
constructive discharge. Additionally, I disagree with UNM and
instead conclude that Dr. Rivero alleged sufficient facts to
state a claim for relief based on constructive discharge.
UNM's motion to dismiss is denied and UNM will file an
answer or other appropriate responsive pleading to the
Amended Complaint within fourteen days from the date of entry
of this Order.