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Hartigan v. County of Guadalupe

United States District Court, D. New Mexico

October 20, 2017

JOHN T. HARTIGAN, Plaintiff,
COUNTY OF GUADALUPE, and GUADALUPE COUNTY SHERIFFS DEPARTMENT, and SHERIFF MICHAEL LUCERO, in his individual and representative capacities, Defendants.



         This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim, filed on May 17, 2017. (Doc. 5.) Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of counsel and relevant law, the Court will grant in part the Motion as outlined below and order the parties to show cause why Plaintiff's remaining claims should not be remanded to state court.

         I. Factual and Procedural Background

         This case arises from Defendant Sheriff Michael Lucero's alleged discrimination and retaliation against Plaintiff John Hartigan, a former employee of the Guadalupe County Sheriff's Department.

         Plaintiff began working at the Guadalupe County Sheriff's Department in June 2014. (Doc. 1-2 (Compl.) ¶ 6.) He received a promotion to the rank of Lieutenant in 2015, but he never received the pay raise he was promised when he was promoted. (Id. ¶¶ 7-9.)

         On November 4, 2015, Plaintiff's coworker, Deputy Campos, “was involved in a motor vehicle accident which totaled his police issued Tahoe.” (Id. ¶ 10.) The County later sold the Tahoe as salvage. (Id.) Later that month, “Sheriff Lucero was involved in a motor vehicle accident wherein his police issued Tahoe was damaged.” (Id. ¶ 11.)

         In December 2015, Sheriff Lucero told Plaintiff that Officer Wheeler with the New Mexico State Police was investigating Sheriff Lucero's accident. (Id. ¶ 12.) “Sheriff Lucero instructed [Plaintiff] to contact Officer Wheeler and inform him that Deputy Diaz [with the Sheriff's Department] was” also conducting an internal investigation of the accident. (Id. ¶ 13.) Plaintiff contacted Officer Wheeler as requested. (Id.) In early April 2016, Plaintiff discovered that Deputy Diaz never completed the investigation. (Id. ¶ 14.) He contacted Deputy Diaz about the incomplete paperwork, and Deputy Diaz told Plaintiff “that Sheriff Lucero had ordered Deputy Diaz to stop the investigation and not to prepare a report.” (Id. ¶ 15.) Plaintiff informed Officer Wheeler of this development. (Id. ¶ 16.)

         During an April 16, 2016 all-staff meeting, Sheriff Lucero “became angry and accused [Plaintiff] and Deputy Campos of being disloyal and” causing a “concerned citizen” to ask whether Sheriff Lucero was intoxicated at the time of his accident. (Id. ¶ 17.) Sheriff Lucero threatened to take away Plaintiff's and Deputy Campos's law enforcement certification. (Id. ¶ 19.) On April 21, 2016, Sheriff Lucero told Plaintiff he could not attend a training as previously scheduled, because the Sheriff “could no longer invest resources into [Plaintiff] because of his age.” (Id. ¶ 20.) “Sheriff Lucero had done this in the past but had allowed [Plaintiff] to attend the training if [he] paid for his own attendance despite the fact that younger officers . . . were paid for by the Sheriff[']s Department.” (Id. ¶ 21.) “On May 9, 2016, Sheriff Lucero served [Plaintiff] with a letter which abolished [Plaintiff's] Lieutenant position . . . and demoted him to Deputy.” (Id. ¶ 22.)

         At some point, Plaintiff also discovered that after Deputy Campos's damaged Tahoe was sold, “Sheriff Lucero had the damaged parts of his police issued Tahoe switched out with non-damaged parts from Deputy Campos'[s] Tahoe, before it was delivered to the new owner.” (Id. ¶ 13.)

         On May 17, 2016, Plaintiff sent a confidential complaint to George Dodge, the Guadalupe County Manager. (See Id. ¶ 23; Doc. 6-3.) He stated that he was “the victim of retaliatory action . . . for reporting what [he] believed . . . was an unlawful or improper act, to the New Mexico State Police . . . . Specifically, Sheriff Lucero failed to report a crash of his county vehicle in November 2015 and ordered specific actions to continue to conceal the crash.” (Doc. 6-3 at 1.) Plaintiff described the incidents alleged in his Complaint and asserted his belief that by reporting to Mr. Dodge, he would “be subject to immediate retaliatory action by Sheriff Lucero.” (Id. at 4.)

         After he sent this letter to Mr. Dodge, Sheriff Lucero continued to harass and retaliate against Plaintiff. (Compl. ¶ 24.) Plaintiff filed a Charge of Discrimination form with the EEOC (and cross-filed it with the New Mexico Department of Workforce Solutions, Human Rights Bureau) on June 9, 2016. (Id. ¶ 25.) On June 20, 2016, Sheriff Lucero sent a memorandum to Plaintiff and cc'd George Dodge regarding “excess electronics/electrical equipment” in Plaintiff's department-issued vehicle and instructed Plaintiff to remove the items. (Id. ¶ 26.) Plaintiff asserts that while other deputies had similar equipment in their vehicles, no other deputy received this memo. (Id. ¶ 27.) On June 27, 2016, Plaintiff “realized that Sheriff Lucero had been improperly reporting [Plaintiff's] work hours for the previous three . . . pay periods . . . .” (Id. ¶ 28.) Plaintiff had “to use annual leave to compensate for the lost time.” (Id.) Plaintiff eventually resigned his position because of the harassment and retaliation. (Id. ¶ 29.)

         Plaintiff filed a complaint in the Fourth Judicial District Court, County of Guadalupe, on April 4, 2017, alleging the following counts: (1) violation of New Mexico's Whistleblower Protection Act (NMWPA), N.M. Stat. Ann. § 10-16C-1 through -6 (1978)[1]; (2) discrimination on the basis of age[2] in violation of the New Mexico Human Rights Act (NMHRA), N.M. Stat. Ann. § 28-1-7; (3) constructive discharge; (4) infliction of emotional distress, pursuant to the New Mexico Tort Claims Act (NMTCA), N.M. Stat. Ann. § 41-4-12 (1978); and (5) negligent hiring, training, and supervision, pursuant to § 41-4-12. (See Compl. ¶¶ 30-55.) Defendants removed the case to this Court on May 10, 2017. (Doc. 1.)

         III. Motion to Dismiss Standard

         In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (citation omitted). “To survive a motion to dismiss, ” the complaint does not need to contain “detailed factual allegations, ” but it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556.)

         IV. Discussion

         Defendants allege that Plaintiff's Complaint is subject to dismissal on the following bases: (1) Plaintiff's age discrimination claim is time-barred; (2) Plaintiff's WPA claim is barred by New Mexico common law; (3) Plaintiff may not state a claim against the sheriff; (4) Plaintiff fails to state a claim for constructive discharge; (5) Plaintiff fails to state a claim for either infliction of emotional distress or negligent hiring, training and supervision; and (6) the Sheriff's Department is not a viable defendant for any claim. (See Doc. 5.)

         A. Plaintiff's age discrimination claim is time-barred.

         Defendant alleges that Plaintiff's age discrimination claim (Count 2) is time-barred. (Doc. 5 at 1.) Plaintiff filed a Charge of Discrimination form with the EEOC on June 9, 2016, alleging that he was “discriminated and retaliated against because of [his] age (56) in violation of the Age Discrimination in Employment Act of 1967, as amended.” (Doc. 5-1.) Plaintiff listed his address on the form as P.O. Box 64, Newkirk, New Mexico 88431. (Id.) The EEOC issued its Dismissal and Notice of Rights on October 13, 2016 and sent it to the same address in Newkirk, New Mexico. (Doc. 5-2 at 1.) At some point between June 9, 2016, and April 4, 2017, the date on which Plaintiff filed his lawsuit, Plaintiff changed his mailing address to P.O. Box 291, Fort Sumner, New Mexico 88119. (See Docs. 6 at 1; 6-1 at 3; 6-2 at 3.) Plaintiff received his EEOC Notice on January 10, 2017. (See Docs. 6 at 1; 6-1 at 3; 6-2 at 3.)

         “Unless a Title VII or ADEA plaintiff files suit within ninety days of receiving a right-to-sue letter from the EEOC, [he] is foreclosed from bringing suit on the allegations made in [his] EEOC claim.” Guevara v. Best W. Stevens Inn, Inc., 78 F. App'x 703, 704 (10th Cir. 2003) (citing 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e)). The same is true for age discrimination claims filed pursuant to the NMHRA. See Herrera v. Las Cruces Pub. Sch., 695 F. App'x 361 (10th Cir. 2017) (construing the “date of service” language in N.M. Stat. Ann. § 28-1-13(A) to mean the “date of mailing”); see also N.M. Stat. Ann. § 28-1-13(A) (“A person aggrieved by an order of the commission may obtain a trial de novo by filing a notice of appeal . . . within ninety days from the date of service of the commission's order”).

         Here, Plaintiff filed his lawsuit 173 days after the EEOC issued the Dismissal and Notice of Rights. Plaintiff argues that because he did not receive the EEOC's Notice by mail until January 10, 2017, he had ninety days from that date to file his lawsuit, and the April 4, 2017 filing was timely. (Doc. 6 at 1.) The law is not on Plaintiff's side.

         Plaintiff is essentially asking the Court to equitably toll the requisite 90-day period. “Equitable tolling is a nonstatutory tolling theory which suspends a limitations period.” Ocana v. Am. Furniture Co., 91 P.3d 58, 66, as corrected (N.M. June 9, 2004) (citation omitted). “Equitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control.” Id. (citing Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984)). “However, where a plaintiff fails to receive notice of the right to sue through his or her own fault, equitable tolling does not apply.” Id. (citing Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”)). “In Hunter v. Stephenson Roofing Inc., 790 F.2d 472, 475 (6th Cir. 1986), the Sixth Circuit Court of Appeals held that equitable tolling is not available to a Title VII plaintiff who fails to notify the EEOC of a change in address, and does not receive notice of the right to sue as a result.” Id. “Relying on precedent and federal law, the court said that a plaintiff's burden of notifying the EEOC of a change in address is both minimal and reasonable.” Id. (citing Hunter, 790 F.2d at 475).

         Plaintiff makes no argument that would excuse him from his responsibility to notify the EEOC of his change of address. The doctrine of equitable tolling does not apply to Plaintiff's age discrimination claim in Count 2, and the Court will grant Defendants' Motion on this issue.

         B. Plaintiff's claim under the NMWPA survives.

         To state a prima facie case under the NMWPA, a plaintiff must establish “three elements: (i) the employee engaged in a protected disclosure; (ii) the employer took an adverse employment action against the employee; and (iii) a causal connection exists between the protected disclosure and the adverse action.” Walton v. N.M. State Land Office, 113 F.Supp.3d 1178, 1199 (D.N.M. 2015) (citing N.M. Stat. Ann. § 10-16C-3) (subsequent citation omitted). Defendants argue that Plaintiff cannot establish the first or third elements. (Doc. 5 at 2-4.)

         1.Plaintiff engaged in a protected disclosure.

         A protected disclosure, as defined in the first element of a prima facie case, occurs when an employee:

A. communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;
B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an ...

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