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Vigil v. New Mexico Public Education Department

United States District Court, D. New Mexico

January 4, 2017

NORMAN VIGIL, Plaintiff,
v.
NEW MEXICO PUBLIC EDUCATION DEPARTMENT, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court upon Defendant's Motion to Dismiss the First, Second and Third Causes of Action of Plaintiff's Complaint Based on Exhaustion Defects, (Doc. 15), filed March 3, 2016; Defendant's Substituted Memorandum in Support of It's (sic) Motion to Dismiss [Based on Rules 12(b)(1) and (6)] the First, Second and Third Causes of Action of Plaintiff's Complaint based on Exhaustion Defects (the “Motion”), (Doc. 17), filed March 8, 2016; Plaintiff's Response to Defendant's Motion to Dismiss (the “Response”), (Doc. 19), filed March 29, 2016; Defendant's Reply to Plaintiff's Response Regarding the Motion to Dismiss [Based on Rules 12(b)(1) and (6)] the First, Second and Third Causes of Action of Plaintiff's Complaint based on Exhaustion Defects (the “Reply”), (Doc. 22), filed April 14, 2016; and Defendant's Notice of Partial Withdrawal of its Motion to Dismiss [Based on Rules 12(b)(1) and (6)] and Affirmance and Renewal of Motion to Dismiss with Respect to Plaintiff's Retaliation Claims in Counts I and III of the First Amended Complaint (the “Notice of Partial Withdrawal”), (Doc. 38), filed May 23, 2016.

         United States District Judge Kenneth Gonzales referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 75). After considering the parties' filings and the relevant law, the Court RECOMMENDS that the Motion to Dismiss with respect to Plaintiff's retaliation claims in the first and third counts of the Amended Complaint be GRANTED.

         I. Background

         A. Procedural History

Plaintiff filed his Complaint for Damages for Discrimination and Retaliation (the “Complaint”) in the First Judicial District Court for the State of New Mexico. (Doc. 1 at 1). Plaintiff's Complaint alleged that Defendant violated his rights under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; the New Mexico Human Rights Act (“HRA”), NMSA 1978, §§ 28-1-1 et seq.; the New Mexico Whistleblower Protection Act (“WPA”), NMSA 1978 §§ 10-16C-1 et seq.; and committed the common law tort of constructive discharge. (Doc. 1-1, Ex. A at 1).

         Defendant removed the case to this Court on January 22, 2016. (Doc. 1). Plaintiff has asserted causes of action for disability and sex discrimination in violation of the ADA, Title VII, HRA, WPA, as well as constructive discharge and retaliation in violation of the ADA and HRA. (Doc. 1-1, Ex. A at 8-11; See Doc. 38 at 2 n.1). Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), Defendant moved to dismiss the first, second, and third causes of action in the Complaint for failure to exhaust. (Doc. 17). After Plaintiff filed his Response to the Motion, he filed a First Amended Complaint for Damages for Discrimination and Retaliation (the “Amended Complaint”), in which Plaintiff alleged that he exhausted his administrative remedies for all of his claims. (See Doc. 33). Based on the Amended Complaint, Defendant filed notice with the Court that it agreed to partially withdraw its Motion. (See Doc. 38). Therefore, currently before the Court is Defendant's argument that Plaintiff's retaliation claims based on the ADA and HRA, as set forth in the first and third causes of action, (See Doc. 33 ¶¶ 70, 80, 81), should be dismissed for failure to exhaust administrative remedies. (Doc. 38 at 1, 3).

         B. Factual Allegations

         The facts are alleged as follows: Plaintiff worked for Defendant from 1997 to 2014 as a computer/IT specialist. (Doc. 1-1, Ex. A ¶ 5). Beginning in 2000, Defendant moved the IT staff, including Plaintiff, to the basement of the Jerry Apodaca Education Building (“JAE Building”). (Doc. 1-1, Ex A ¶ 8). In 2010, the New Mexico Environment Department completed an environmental assessment in the area that revealed potential sources of subsurface contamination near the JAE Building. (Doc. 1-1, Ex A ¶ 10). At approximately the same time, employees of Defendant began to suffer from respiratory symptoms and noticed an odor in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 11).

         Defendant relocated the IT staff in the JAE Building from the basement to the third floor in December 2010. (Doc. 1-1, Ex. A ¶ 12). After the move, the Communications Workers of America union (“CWA”) requested an investigation into the air quality in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 13). The investigation revealed that the JAE Building basement was inadequately ventilated and had mold contamination, elevated levels of Freon, and elevated levels of organic compounds. (Doc. 1-1, Ex. A ¶ 13). In 2012, asbestos was also found in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 15).

         Plaintiff suffered health problems at this time, including respiratory, neurological/physiological, and psychological issues. (Doc. 1-1, Ex. A ¶ 17-19). Plaintiff was diagnosed with traumatic neurotoxicity, Post Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder, and anxiety, all of which his doctors linked to his exposure to contaminants in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 20). Beginning in 2010, Plaintiff requested and was approved for worker's compensation due to his illnesses; however, his requests to be moved from the JAE Building to another building were denied by Defendant. (Doc. 1-1, Ex. A ¶¶ 23, 25). Plaintiff asserts that during this time he was ridiculed by his supervisors, especially after being directed by his doctor to wear a respirator mask to work starting in March 2013. (Doc. 1-1, Ex. A ¶¶ 26-29).

         In September 2013, Defendant moved IT employees back to the JAE Building basement after tests showed that contamination levels were below levels required by the Occupational Safety and Health Administration. (Doc. 1-1, Ex. A ¶ 30). Soon thereafter, CWA filed a suit to prevent employees from having to work in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 31). Plaintiff signed an affidavit stating his health problems and his belief that they were linked to the JAE Building in support of this lawsuit. (Doc. 1-1, Ex. A ¶ 32). In a settlement between CWA and the State of New Mexico, Defendant agreed to do further testing for contaminants in the JAE Building basement. (Doc. 1-1, Ex. A ¶ 33).

         In February 2014, Plaintiff was asked to once again move down to the JAE Building basement, which he agreed to do on a trial basis. (Doc. 1-1, Ex. A ¶¶ 34-35). Soon after, Plaintiff began experiencing chest heaviness, headaches, and panic attacks and asked to work in a different building. (Doc. 1-1, Ex. A ¶¶ 36-37). Plaintiff was moved to an office on the first floor of the JAE Building. (Doc. 1-1, Ex. A ¶ 39). Plaintiff continued to experience health problems in the office on the first floor and again requested a transfer to a different building. (Doc. 1-1, Ex. A ¶¶ 41-42). Plaintiff continued to ask Defendant to move during the summer and fall of 2014, but Defendant refused to move him to another building, although two female employees' requests to be moved were granted. (Doc. 1-1, Ex. A ¶¶ 48-50).

         Plaintiff filed a Charge of Discrimination (the “Charge”) with the Equal Employment Opportunity Commission (“EEOC”) and the New Mexico Human Rights Bureau (“HRB”) in July 2014. (Doc. 17-1, Ex. A). In October 2014, the Worker's Compensation Administration ordered Defendant to move Plaintiff from the JAE Building for health reasons. (Doc. 1-1, Ex. A ¶ 52). Defendant had Plaintiff leave the JAE Building, but did not move him to another building, so Plaintiff went on worker's compensation. (Doc. 1-1, Ex. A ¶ 53). After being hospitalized with psychological issues in October 2014 and being unable to come to an agreement with Defendant in November 2014, Plaintiff applied for duty disability benefits. (Doc. 1-1, Ex. A ¶¶ 54-55). Plaintiff's disability ...


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