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Cordova v. State

United States District Court, D. New Mexico

October 6, 2017

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.


         Plaintiff 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).[1] Defendants have moved to dismiss all counts of the Complaint. The Motion has been fully briefed.[2] 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.

         I. BACKGROUND[3]

         Plaintiff 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.

         Plaintiff 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.

         However, 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.

         On or 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. ¶ 23.

         On 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.

         On 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.

         Plaintiff 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. ¶ 33.

         As 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.

         Telles 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.

         Plaintiff 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. ¶ 40.

         Finally, 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.

         Soon 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.” Id.

         During 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.

         Based 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).


         Plaintiff 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).

         “A 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, 45-46 (1957)).


         Defendants 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.

         A. FMLA Claims - Counts I, II, & III

         The 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.

         The 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 follows:

(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 calendar ...

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