United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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).
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).
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).
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).
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).
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).
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 ...