United States District Court, D. New Mexico
MARK CONKLING, Personal Representative of the Estate of Bryan Conkling, Plaintiff,
TRI-STATE CAREFLIGHT, LLC and BLAKE STAMPER, individually, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART and
DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY
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.
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. 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
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 Also, Plaintiff has withdrawn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.
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.
relevant facts are grouped according to Plaintiff's
Facts Relevant to Retaliatory Discharge Claim (Count
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.
Facts Relevant to Falsification of Time Card
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.
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.
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). 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.
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. 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
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
Plaintiff's “Additional Facts” Leading Up
to Bryan's Termination
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.
14 contains a “synopsis of Bryan” written by Erin
Johnson to Mark Swafford describing Bryan as “an
extremely intelligent, calculated and capable
paramedic.” 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.
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.
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.
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).
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.
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
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.
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.
Facts Relating to Narcotics Handling at Tri-State
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 ...