United States District Court, D. New Mexico
LOUIS T. CORDOVA, Plaintiff,
STATE OF NEW MEXICO, University of New Mexico Hospital, EDUARDO LOPEZ, in his individual capacity, CAROL HILTON, in her individual capacity, and DEINNA DURES, in her individual capacity, Defendants.
MEMORANDUM OPINION AND ORDER
Louis Cordova brings claims arising out of the termination of
his employment against Plaintiff's former employer, State
of New Mexico governmental entity the University of New
Mexico Hospital (UNMH), along with Plaintiff's former
supervisors, the individual UNMH employees Eduardo Lopez,
Carol Hilton, and Deinyna Duenas, improperly identified as
“Deinna Dures.” (collectively,
Defendants). Defendants have moved to dismiss all
counts of the Complaint. The Motion has been fully
briefed. The Court will grant the Motion insofar as
Plaintiff agrees to the dismissal of certain claims, but will
deny the Motion as to the remaining claims.
suffers from post-traumatic stress disorder (PTSD),
obsessive-compulsive disorder (OCD), and depression. Compl.
¶ 12. Plaintiff was diagnosed when young, and he has
received treatment for a number of years. Id. He has
been in therapy and periodically has taken psychiatric
medications for these conditions. Id. From 2007
through 2016, Plaintiff continuously took medication for his
psychiatric diagnoses. Compl. ¶ 13.
was employed by UNMH from October 30, 2007, until his
employment was terminated on March 23, 2016. Compl.
¶¶ 14-15. During this time, Plaintiff occasionally
experienced increased symptoms due to his psychiatric
conditions, but because he was able to predict when these
episodes would occur he was able to continue working with the
aid of his medications. Compl. ¶ 18. He performed his
job duties satisfactorily during this time. Compl. ¶ 16.
Plaintiff's symptoms became more frequent and intense in
the beginning of 2016, and his medical providers recommended
that Plaintiff begin structured therapy and more consistent
treatment. Compl. ¶ 19. In February 2016 Plaintiff began
receiving treatment and therapy through Outcomes, a
UNMH-sponsored health care program. Compl. ¶ 20.
Outcomes recognized that Plaintiff's psychiatric
condition required more frequent therapy sessions and work
accommodations for his deteriorating mental health.
Id. Plaintiff submitted paperwork to UNMH under the
Family and Medical Leave Act (FMLA), 29 U.S.C. §§
2601, et seq., for this purpose. Compl. ¶ 21.
about March 7, 2016, Plaintiff experienced an episode of
severe anxiety that caused him to take leave for ten days on
his physician's recommendation. Compl. ¶ 22. On
March 17, 2016, Plaintiff's Outcomes health care provider
Daniel Crowder signed off on an FMLA Certification of Health
Care Provider, noting that (1) the onset of Plaintiff's
serious health condition was February 26, 2016; (2) the
estimated duration of the condition was one year; (3) the
recommendation was weekly to biweekly therapy for six months
to one year; (4) Plaintiff suffered from decreased attention
and focus leading to lowered productivity; (5) Plaintiff
suffered from PTSD; (6) Plaintiff's condition would
periodically cause intense symptoms; (7) these episodes of
intensity could occur 1-2 times per day, would cause
Plaintiff to be ineffective at work, and would periodically
prevent Plaintiff from performing his work duties in such a
manner as to require him to be absent from work. Compl.
March 18, 2016, Plaintiff's first day back at work from
leave, Plaintiff delivered this Certification to his
supervisor, Defendant Lopez, along with a signed FMLA Notice
of Eligibility that was dated that same day. Compl. ¶
24. Lopez filled out UNMH's Notice of Eligibility that
day and noted that Plaintiff had submitted his medical
certification, but marked both the “yes” and the
“no” boxes as to whether a workplace
accommodation was required despite the provider's
statement in the certification that Plaintiff's condition
would periodically require Plaintiff to be absent from work.
Compl. ¶¶ 25-26.
March 23, 2016, Plaintiff was at work when he experienced
increased symptoms including severe anxiety. Compl. ¶
27. Plaintiff approached Lopez with concerns about his
condition and requested that he be allowed to leave work.
Id. Lopez replied that taking leave should not be a
problem since it was FMLA-related, but stated that he would
get clarification before responding to the leave request.
Id. Plaintiff continued to work for approximately 30
more minutes, then met again with Lopez. Compl. ¶ 28. At
this time Lopez informed Plaintiff that UNMH could not
accommodate Plaintiff's request because several other
employees were out of the office. Id.
returned to work although the intensity of his symptoms had
not subsided. Compl. ¶ 29. Even in this diminished
condition, Plaintiff met his production requirements.
Id. Nevertheless, Lopez called Plaintiff into his
office a few hours later and questioned Plaintiff about his
allegedly low productivity that day. Id. In
response, Plaintiff told Lopez that he did not feel well and
asked again that he be allowed to leave work for the day.
Compl. ¶ 30. Lopez became angry with Plaintiff and began
to accuse Plaintiff of not doing his job. Id. This
confrontation exacerbated Plaintiff's symptoms and
Plaintiff experienced a panic attack. Id. Plaintiff
began to suffer hot flashes, a startle response, and
uncontrollable irritability. Compl. ¶ 31. Plaintiff
warned Lopez that he was experiencing the symptoms of a panic
attack, but Lopez continued to accuse Plaintiff of poor job
performance. Compl. ¶¶ 30, 32. Plaintiff was
overcome by anxiety and rushed out of Lopez's office,
leaving behind his badge and personal belongings. Compl.
Plaintiff left, he called his girlfriend Danielle Telles and
told her he was experiencing severe symptoms and needed
immediate medical help. Compl. ¶ 34. Plaintiff contacted
his providers and requested treatment, but he could not get
an appointment until the next morning so he went to the UNMH
Mental Health Urgent Care Clinic where he was seen and
treated. Compl. ¶ 35.
called Lopez to advise him that Plaintiff had sought
treatment for his March 23 panic attack. Id. Telles
followed up on March 24, 2016, with further calls to
Plaintiff's supervisors. Compl. ¶ 36. In accordance
with UNMH policy, Telles called Defendant Duenas at least two
hours before Plaintiff was scheduled to work on March 24,
2016, and left a message informing Duenas that Plaintiff was
receiving medical treatment for his symptoms from the
previous day. Id. Telles did not receive a return
call from either Lopez or Duenas. Compl. ¶ 37.
was released from UNMH Mental Health on March 24, 2016, but
was given a medical note stating that he could not return to
work before March 28, 2016. Compl. ¶ 38. Since she had
not received any response to her earlier calls, Telles left a
message with the secretary of the department where Plaintiff
worked asking Plaintiff's supervisors to call Telles as
soon as possible so that Telles could update them on
Plaintiff's prognosis and his expected absence from work
until March 28, 2016. Compl. ¶ 39. But Plaintiff's
supervisors still did not respond to the message. Compl.
on March 28, 2016, at approximately 4:00 p.m. Telles received
a phone call from Defendant Hilton, who was the department
manager and Lopez' supervisor. Compl. ¶ 41. Hilton
informed Telles that she would not discuss any issue related
to Plaintiff with Telles. Id.
after, Plaintiff received a letter from UNMH dated March 23,
2016, and advising that Plaintiff's employment with UNMH
had ended due to his alleged voluntary resignation on March
23, 2016. Compl. ¶ 42. The letter was from Hilton, and
noted that Plaintiff had requested FMLA leave but stated that
the request was denied because Plaintiff's FMLA leave had
not yet been approved. Compl. ¶ 43. Plaintiff did not
resign from his position with UNMH. Id. Plaintiff
characterizes the letter as “a fabrication of Lopez and
Hilton to justify an unlawful termination.”
Plaintiff's unemployment appeal hearing, UNMH and Hilton
admitted that (1) they knew of Telles' telephone calls to
UNMH regarding Plaintiff; (2) they intentionally decided not
to return Telles' calls; (3) they knew that Plaintiff had
requested leave on March 23, 2016, for a condition related to
the contents of his FMLA paperwork; and (4) if they had known
of the severity of Plaintiff's medical condition on March
23, 2016, Plaintiff would not have been separated from his
employment. Compl. ¶ 44.
on these circumstances, Plaintiff filed suit against all
Defendants for FMLA interference (Count I), FMLA retaliation
(Counts II and III), violation of due process (Count IV),
breach of implied contract (Count V), retaliatory discharge
(Count VI), and wrongful termination (Count VII).
brings his claims under § 2615(a) of the FMLA, 42 U.S.C.
§ 1983, and New Mexico common law. Compl. ¶ 1. The
Court has original jurisdiction over Plaintiff's federal
claims under 28 U.S.C. § 1331 and supplemental
jurisdiction of Plaintiff's state-law claims under 28
U.S.C. § 1367(a). Although Defendants cite Rule 12(b)(6)
in their Motion, Defendants have answered the Complaint.
See Answer (Doc. No. 5). The Court will therefore
consider the Motion under Rule 12(c).
motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6).”
Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). The Court
will “accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the plaintiff[s].” Ramirez v.
Dep't of Corr., Colo., 222 F.3d 1238, 1240 (10th
Cir. 2000). Dismissal on the pleadings is generally
appropriate only if “‘it appears beyond doubt
that [P]laintiff can prove no set of facts in support of
[the] claim[s] which would entitle him to relief.'”
Id. (quoting Conley v. Gibson, 355 U.S. 41,
ask the Court to dismiss the Complaint in its entirety,
asserting the sovereign immunity of UNMH, the qualified
immunity of the individual Defendants, and arguing that
Plaintiff's allegations fail to state a claim. Mot. at 2.
Plaintiff acknowledges that UNMH is entitled to sovereign
immunity from suit based on the self-care provision of the
FMLA, § 2612(a)(1)(D). See Coleman v. Court of
Appeals of Md., 566 U.S. 30, 43 (2012). Plaintiff
therefore consents to the dismissal of Counts I, II, and III
as to Defendant UNMH only. Resp. at 3. Plaintiff also
acknowledges that the remedial scheme of the FMLA forecloses
a retaliatory discharge claim under § 1983 as pleaded in
the Complaint, and Plaintiff agrees that Count VI should be
dismissed. Resp. at 16. Accordingly, the Court will dismiss
Counts I, II, and III against UNMH and Count VI against all
Defendants, and the Court will analyze the parties'
arguments only as to Plaintiff's remaining claims.
FMLA Claims - Counts I, II, & III
FMLA entitles a qualified employee to take up to twelve weeks
of leave during any twelve month period “[b]ecause of a
serious health condition that makes the employee unable to
perform the functions of the position of such
employee.” § 2612(a)(1)(D). It is unlawful for any
employer to interfere with or retaliate against an
employee's exercise or attempted exercise of these
rights. § 2615(a). But Defendants Lopez, Duenas, and
Hilton argue that they cannot be held individually liable as
employers under the FMLA.
definition of “employer” in the FMLA is
substantively identical to that in the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 203(d). An
“employer” subject to the FMLA is defined as
(A) In general The term “employer”--
(i) means any person engaged in commerce or in any industry
or activity affecting commerce who employs 50 or more
employees for each working day during each of 20 or more