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Conkling v. Tri-State Careflight, LLC

United States District Court, D. New Mexico

April 25, 2017

MARK CONKLING, Personal Representative of the Estate of Bryan Conkling, Plaintiff,
TRI-STATE CAREFLIGHT, LLC[1] and BLAKE STAMPER, individually, Defendants.


         THIS MATTER comes before the Court upon Defendant's Motion for Summary Judgment, filed February 10, 2017 (Doc. 88). Having reviewed the parties' briefs and applicable law, the Court finds that Defendants' motion is granted with respect to the retaliatory discharge claim in Count I, but is denied with respect to the malicious abuse of process claim in Count IV.


         This is an employment discrimination case, filed in First Judicial District Court, County of Santa Fe, on January 13, 2014. Defendants removed the case to federal court on March 10, 2014 based on diversity jurisdiction. Bryan Conkling (“Bryan”) worked as a flight paramedic and later as a base manager at Base No. 5 for Tri-State Careflight (“Tri-State”), an emergency medical services (“EMS”) provider that provides air ambulance services in Arizona, Colorado, Nevada and New Mexico.[2] Bryan contends that Tri-State and Dr. Stamper, owner of Tri-State, began to discriminate against him after he became ill in the summer of 2012 and had to take medical leave. He alleges that when he returned to work, he was not permitted to work in Santa Fe as he had done in the past, but was assigned to the Gallup base and was demoted. He eventually was returned to a position as a co-manager at the Santa Fe base, but found that position intolerable. Bryan also alleges retaliation because he engaged in protected labor organizing activity when he informed certain governmental regulatory agencies about safety violations and violations regarding transport, storage and use of controlled substances. Bryan was terminated from his position, and he contends that his termination was based on discrimination on the basis of his serious health condition and in retaliation for his protected labor organizing activity and for reporting safety violations.

         Defendants move for summary judgment on Counts I and IV, asserting retaliatory discharge and malicious abuse of process. Count III alleged a violation of the New Mexico Human Rights Act, NMSA 1978, §28-1-7(A), which the Court dismissed based on Plaintiff's refusal to comply with the Court's discovery Order. See Doc. 82. Also, Plaintiff has withdrawn his claim for defamation in Count II. Doc. 98 at 1.

         The Court recently denied summary judgment to Plaintiff on his claim for malicious abuse of process (Doc. 105). Here, the Court addresses Defendant's motion for the same claim as well as Plaintiff's claim for retaliatory discharge.

         I. Undisputed Facts

         The relevant facts are grouped according to Plaintiff's claims.

         A. Facts Relevant to Retaliatory Discharge Claim (Count II)

         Plaintiff alleges two “public policies” to support his claim for retaliatory discharge: (1) public policy related to proper control and handling of narcotics “as expressed through rules and regulations regarding such control or handling” and (2) public policy related to the right of workers to engage in labor organizing activity. Am. Compl., ¶¶28 and 30.

         1. Facts Relevant to Falsification of Time Card

         On or about July 26, 2013, Dayna Blake, who was the Medical Program Director at Tri-State, and Bryan Conkling's supervisor, made the decision to terminate Bryan's employment. Defendants claim that Bryan was terminated for falsifying his time card, for insubordination and creating an unproductive work environment. In her deposition, Ms. Blake testified that she informed Bryan of these reasons when she terminated him, and that he gave no explanation as to why his time card was falsified. Ex. D at 52:1-8. Plaintiff disputes this fact, claiming that Ms. Blake did not offer any explanation for why his time card was wrong, except that she told him he was being terminated for “insubordination” and “creating a negative work environment. Bryan stated in his deposition that when he asked for “documentation, ” Ms. Blake told him “that was not necessary.” Ex. C at 58:20-22.

         The Court also notes that the reasons given by Dr. Stamper for Bryan's termination are consistent with those given by Ms. Blake. In his deposition, Dr. Stamper testified that Bryan “had a repetitive behavior of . . . of agitation, he was unresponsive, he was unhelpful, he falsified his time card, and he was terminated.” Ex, 16 at 52:19-21.

         Shortly before Bryan's termination, Ms. Blake sent a message to Lindsey Ward, forwarding a message regarding a day when Bryan had arrived late for a shift. Ms. Blake's message said excitedly, “Would this be falsifying timecards???” Her message also included the statement, “Please I am not targeting Bryan, I am treating him the same way I would any other manager.” Ex. 18 (July 23 e-mail from Blake to Ward).[3] The time card in question indicated that Bryan clocked in at 8:00 am on June 20 and out at 8:00 am on June 21. Ex. 19.

         For Additional Facts 18-20, Plaintiff offers Exhibits 18-20, claiming that these exhibits are evidence that Bryan actually worked well past 8:00 a.m. on June 21. While these facts are not rebutted by Defendant, the Court will not consider them here for the reasons given by Plaintiff because the exhibits do not support Plaintiff's representations.[4] Exhibit 18 includes Ms. Blake's e-mail to Ms. Ward which is described above, but it also includes an e-mail from a Tri-State employee, Jamie Butler that was forwarded to Ms. Ward on July 23, 2013 in which Mr. Butler that stated he has “great heartache and heartburn because of Bryan's actions.” Mr. Butler also stated that “Bryan will not allow a solid team to form at ¶ 5. By example and by action he is tearing down what is left of the pride in Santa Fe.” He also stated that “fellow employees are afraid to file complaints against Bryan because he is ‘unfireable' and everything gets back to him . . . He reportedly retaliates making the situation worse.” Ex. 18. Plaintiff cites to Exhibit 20 to show that Bryan actually worked past 8:00 a.m. in the morning, although he did not adjust his timecard to reflect the additional time. However, Exhibit 20, which is a letter, does not show this at all. The letter mentions that time card only to state that another employee, Ed Rhue, agreed to cover Bryan's shift because Bryan had a doctor's appointment and that Bryan agreed to “come back at 8 p.m.” Id. There is nothing in the letter mentioning that Bryan worked past 8:00 a.m. or that Bryan did not adjust his time card to reflect this. Plaintiff not only mischaracterizes what Exhibit 20 states, but also omits language that constitutes the essence of the letter. This letter proceeds to describe Bryan as being divisive and hostile:

Brian [sic] still would not stop jumping in, Dr. Rosen asked him again to stop! Brian keep [sic] going on, how he does what he does to save life's [sic] and everything he does is correct. If people were as smart as him, they again would take as Much [sic] time as him. [At] one point Erin walked out to avoid being mocked by Brian. At that time, Dr. Rosen told him, your [sic] very argumentative today and to stop. . . Erin could not ask or say anything without Brian mocking her or being aggressive towards her. At that point Erin walked out again. In my opinion Brian was manic and could not listen to Dr. Rosen, Erin or myself on anything. All he wanted to do was fight and argue about everything and no one could talk to him. I think this is not a good working environment and Brian should not come back tonight and fly with Erin.

Ex. 20.

         In response to a complaint that Bryan Conkling made to the Occupational Health and Safety Bureau of the New Mexico Environment Department (“OHSB”), Blake Stamper sent a letter dated September 27, 2013 that informed the OHSB investigator that Bryan Conkling's employment at Tri-State had been terminated for theft and falsification of records. Ex. F; see also Ex. C (Bryan's Dep.) at 119:4-9 (admitting that submitting a false time timecard and getting paid for hours not worked would constitute falsification of records and theft). Dr. Stamper considered Bryan's taking compensation for work he did not do as “theft.” Ex. E (Stamper Dep.) at 74:4-20. Dr. Stamper testified in his deposition that “the management team interviewed everyone involved, looked at the time cards” and that the conclusion was “that Bryan was not at work when he was supposed to be at work, yet he had his time card appear that he was.” Ex. E at 74:20-24.

         2. Plaintiff's “Additional Facts” Leading Up to Bryan's Termination

         Plaintiff presents Additional Facts 16 and 17 to show that prior to Bryan's termination, Tri-State management engaged in communications with one another to seek information that could be used to terminate Bryan. However, these facts also are not supported by the evidence presented in Exhibits 13-17. For example, Exhibit 13 is an e-mail from Ms. Johnson to Mark Swafford, R.N., the Clinical Services Manager, in which Ms. Johnson states that she would “prefer” that Swafford not transfer Bryan. Ex. 13. In forwarding Ms. Johnson's e-mail to Ms. Ward, Swafford stated only that he thought Ms. Ward “might find” that comment “interesting.” Ex. 13.

         Exhibit 14 contains a “synopsis of Bryan” written by Erin Johnson to Mark Swafford describing Bryan as “an extremely intelligent, calculated and capable paramedic.”[5] Ms. Johnson also described Bryan as someone who is “idealistic” and “marches to the beat of his own drum.” Johnson noted that it was a “struggle” to work well with Bryan because he “gets very upset when his idealism cannot be achieved” and that Bryan is “easily subject to bad moods and becomes angry and sarcastic.” Id. Johnson ended the e-mail with the statement that he “look[ed] forward to new employees/managers seeing [Bryan] through an objective set of eyes and perhaps offering ideas to help us work through our own struggles.” Id. There is nothing in this e-mail suggesting that any of these individuals were trying to set up Bryan for termination. Instead, Exhibit 14 appears to be a balanced assessment of Bryan's strength and weaknesses as fellow employee- which is exactly what Ms. Johnson intended.

         In Additional Fact 16, Plaintiff refers to an e-mail from a co-worker named Kevin Napp sent to Mr. Swafford in which Mr. Napp made observations about Bryan during a shift he had with Bryan on January 12, 2013. He noted that Bryan's “knowledge of the area was better than even the pilot, but that “he was extremely slow on scene.” Mr. Napp also noted that after they returned from the flight, Bryan “did not assist with either restock or paperwork and simply went home.” Mr. Swafford forwarded Mr. Napp's e-mail to Ms. Ward and Ms. Blake, and Ms. Ward responded that she would “put this in Bryan files [sic].” Plaintiff infers that there is something untoward and conniving about Ms. Ward's reference to a “Bryan file” in Exhibit 16 and in the fact that Dr. Stamper testified at his deposition that “[t]here were no Bryan files” and that he was “. . . surprised that you would refer to something like that.” Ex. 17 (Stamper Dep. At 52:10-16). However, none of the Exhibits bears out the inference Plaintiff is trying to make. No reasonable fact finder would find that Plaintiff's Additional Facts 16-17 (Exhibits 13-17) suggest some kind of collusion between Tri-State managers to seek information that could be used to terminate Bryan. The Court need not consider facts that are not supported by a party's exhibits and therefore the Court will not consider Plaintiff's Additional Facts 16-17 for the purposes offered by Plaintiff.

         3. Facts Relevant to Medical Leave and Union Activities

          Plaintiff also claims that Tri-State terminated Bryan because he took medical leave and because of Bryan's efforts to organize union activities, and presents Additional Facts 2 to 11 for support.

         Bryan requested medical leave in 2012. When he was cleared to return to work, Bryan found that he had been transferred to a distant base requiring a lengthy commute and that he had been demoted from his position as manager which resulted in a pay cut. Bryan complained to Tri-State, informing a supervisor and Dr. Stamper that he had filed complaints with the EEOC and other entities. Ex. 1. Dr. Stamper responded directly to Bryan, agreeing to Bryan's request to reinstate him to his original position in exchange for Bryan's promise to drop his EEOC and other complaints. Ex. 2. Dr. Stamper responded on several other levels as well. He explained that even though Bryan had been cleared for full duty with certain medical restrictions, it had been noted that Bryan “displayed signs of sleepiness and fatigue on the job.” In light of the work restrictions placed on him by his doctor, Tri-State believed that “the best way to insure safety and patient care was to temporarily modify some of [Bryan's] job duties.” Ex. 2. Dr. Stamper further stated that he was unaware of the concomitant pay cut, and assured Bryan that it was not the intent behind the job modifications. He instructed the accounting staff to calculate any back wages and back base manager pay to address that issue, and to reimburse Bryan for any mileage for work-related trips to bases other than CF5 (Base Camp No. 5).

         Bryan did not return to the Santa Fe base with the same status he had previously held, but was instead made a “co-manager” of the base. Dr. Stamper stated in a letter to Bryan that while Bryan was to resume his position as a base manager at ¶ 5, he was directed to work together with Jamie Butler who had been serving as base manager of that camp during Bryan's medical absence. Ex. 2. However, this working relationship was not successful. In a letter to Lindsey Ward dated May 23, 2013, Ms. Blake informed Ms. Ward that the “dual manager model for CF5 is not working as well as hoped, ” not due to anyone's fault, but because of “latent errors related to communication.” Ex. 4.

         On June 6, 2013, Bryan sent a letter to Dr. Stamper informing him of his intention to pursue union organizing activity. Ex. 5. Dr. Stamper responded in a letter, stating that while Tri-State supports the right of its employees to engage in union activities (described by Bryan as “lawful concerted activities”), Bryan was not entitled to participate in these activities because he was a supervisor at Tri-State. Ex. 6. On June 20, 2013, Bryan sent a follow-up letter to Dr. Stamper and others, asking for an explanation of Dr. Stamper's claim that Bryan was a supervisor. Ex. 7. Bryan copied this letter to various government labor offices. He also sent a letter to Tri-State employees describing efforts to organize a union. Ex. 8. Plaintiff's Additional Fact 10 states that Tri-State had previously been charged with violating the National Labor Relations Act (“NLRA”) referring to Tri-State's answer to an Interrogatory stating that the National Labor Relations Board, on behalf of another employee, had charged Tri-State with violating the NLRA. Ex. 9 at 5 (Suppl. Ans. To Interrog. No. 12). Because the matter was settled and dismissed, the Court finds this fact to be irrelevant and immaterial to Plaintiff's lawsuit. Additional Fact 10 also states that there were “[n]o other findings of violation of laws pertaining to employee rights or safety were made in the two years preceding Plaintiff's termination” although this part of the interrogatory response is omitted by Plaintiff.

         After being told that he was not permitted to get involved in concerted labor organizing activities, Bryan requested permission to resign from his management position in order to be permitted to continue organizing. Dr. Stamper denied that request because he felt that it was “not in Tri-State's best interest to allow” the transfer and that Bryan would be kept in his current position as a Base Manager. Ex. 10.

         It is undisputed that Dayna Blake had no knowledge that Bryan was involved in any effort to establish a union at Tri-State. Ex. D at 26:15-17.

         4. Facts Relating to Narcotics Handling at Tri-State

         Bryan testified in his deposition that he had concerns about what he considered to be inappropriate inventory at Tri-State related to the transport of controlled substances between bases. Ex. C at 65-66. When questioned about specifics regarding his alleged concerns regarding narcotics control and handling, Bryan testified that “the out-of-state transportation of resupply was something we [Tri-State] were not licensed to ...

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