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Vigil v. New Mexico Public Education Department

United States District Court, D. New Mexico

April 27, 2018

NORMAN VIGIL, Plaintiff,


         This matter comes before the Court on Defendant's motions for summary judgment and Plaintiff's motion for partial summary judgment. On January 16, 2017, Defendant filed “Defendant's Motion for Summary Judgment Regarding Plaintiff's Claims of Disability Discrimination and Retaliation Based on the ADAAA and HRA [Count I and III] and his Common Law Claim of Constructive Discharge [‘Primary Summary Judgment Motion']” (“Defendant's First Motion for Summary Judgment”) (Doc. 84), and “Defendant's Motion for Summary Judgment Regarding Plaintiff's Claims of Sex Discrimination [Counts II and III] and Retaliation Based on The Whistleblower Protection Act [Count IV] [‘Second Motion for Summary Judgment']” (“Defendant's Second Motion for Summary Judgment”) (Doc. 86). On January 18, 2017, Plaintiff filed “Plaintiff's Motion and Memorandum for Partial Summary Judgment that his Employer-Caused Disability Does Not Cut off Back or Front Pay” (“Plaintiff's Motion for Partial Summary Judgment”). (Doc. 89). The motions are completely briefed. (Docs. 85, 87, 98, 101, 102, 108, 114, and 115).

         The Court conducted a hearing on March 27, 2018, in which it briefly explained its reasons for granting, in part, and denying, in part, Defendant's First Motion for Summary Judgment; granting Defendant's Second Motion for Summary Judgment; and denying Plaintiff's Motion for Partial Summary Judgment. The Court also entered an Order on March 27, 2018, noting its tentative ruling. (Doc. 127). This Memorandum Opinion and Order constitutes the full written opinion mentioned at the hearing and in the Order.

         I. Procedural Background

         A. Plaintiff's Amended Complaint

         Plaintiff filed his First Amended Complaint for Damages for Discrimination and Retaliation (“Amended Complaint”) on May 4, 2016. (Doc. 33). In his Amended Complaint, Plaintiff pleaded five causes of action against Defendant: “Violations of the ADA” (“Count I”), “Violations of Title VII” (“Count II”), “Violations of the HRA” (“Count III”), “Violations of the WPA” (“Count IV”), and “Constructive Discharge” (“Count V”). Id.

         B. Defendant's First Motion for Summary Judgment

         In its First Motion for Summary Judgment, Defendant contends that it is entitled to summary judgment on Plaintiff's ADA and NMHRA failure to accommodate claims because Plaintiff cannot prove a disability under the ADA. (Doc. 85) at 22. Additionally, Defendant argues that Plaintiff cannot prove the remaining elements of his prima facie failure to accommodate case, and that Defendant did everything it could to reasonably accommodate Plaintiff. Id. at 22-27. Defendant also argues that Plaintiff has no claim for constructive discharge. Id. at 26-27, 31-36.

         In response, Plaintiff asserts that summary judgment is improper because Plaintiff can establish a prima facie failure to accommodate case, and, further, his requested accommodations were reasonable. (Doc. 101) at 16-25. Plaintiff also argues there is a genuine issue of material fact regarding whether he was constructively discharged. Id. at 25-27.

         C. Defendant's Second Motion for Summary Judgment

         In its Second Motion for Summary Judgment, Defendant asserts it is entitled to summary judgment on Plaintiff's Title VII and NMHRA sex discrimination claims. (Doc. 87) at 6. Specifically, Defendant argues that Plaintiff, a male, cannot show that Defendant treated him differently from similarly situated female employees. Id. at 12-14. In addition, Defendant argues it is entitled to summary judgment on the New Mexico Whistleblower Protection Act (“NMWPA”) claim because Plaintiff cannot show a causal connection between Plaintiff's protected activity and Defendant's alleged retaliation. Id. at 14-16. In response, Plaintiff argues that he can show both that he was treated differently from similarly situated female employees and can establish a prima facie case of sex discrimination. (Doc. 102) at 9-12. Plaintiff further asserts that there is evidence demonstrating a causal connection between Plaintiff's protected activity and Defendant's retaliatory actions. Id. at 12-22.

         D. Plaintiff's Motion for Partial Summary Judgment

         In Plaintiff's Motion for Partial Summary Judgment, Plaintiff argues there is no genuine issue of material fact concerning whether Defendant caused his disability and, thus, he had no duty to mitigate his damages. (Doc. 89) at 8-13. In its response, Defendant argues Plaintiff's motion is premature and that there are genuine issues of material fact regarding whether Plaintiff is disabled and, even if Plaintiff is disabled, a genuine question of fact exists as to whether Defendant caused the disability. (Doc. 98) at 19-28.

         II. Factual Background[1]

         A. Facts Relevant to Failure to Accommodate Claims and Constructive Discharge

         Plaintiff worked for Defendant for over seventeen and a half years. (Doc. 89-14) at 2. At the time relevant to this litigation, November 2010, to January 2, 2015, when he resigned, Plaintiff worked as an Information Technology (“IT”) Systems Manager IV. Id.; (Doc. 85-1) at 25 (depo. at 26). Plaintiff, his supervisor and Defendant's Chief Information Officer, Michael Archibeque, and Plaintiff's IT coworkers worked in the Jerry Apodaca Building (“Apodaca Building”). (Doc. 85-1) at 12, ¶ 11.

         On November 10, 2010, Plaintiff reported to Annette Larkin, Defendant's Human Resource Administrator, that he became ill on November 1, 2010. Id. at 52-54. Plaintiff reported he was experiencing headaches, burning eyes, sinus issues, and that he was unable to focus due to a chemical smell in his office. Id. At the time of his illness, Plaintiff was working in the basement, Room G-5, of the Apodaca Building. Id. at 7, ¶ 6; id. at 11, ¶ 5; (Doc. 89-1) at 3. Defendant took steps after November 2010 to remediate the basement, including the installation of a new ventilation system and the removal of any mold and water leaks in the basement bathrooms. (Doc. 85-1) at 2, ¶¶ 5-6. During the remediation, Defendant discovered asbestos in the tile layer underneath the carpeting of the “G-5 server room.” Id. at ¶ 7. By April 1, 2013, Defendant had removed the asbestos completely. Id.

         After Plaintiff made his November 2010 report, Defendant moved Plaintiff and his coworkers from the basement to an office on the third floor of the Apodaca Building, which provided windows that Plaintiff opened. (Doc. 89-1) at 3; (Doc. 89-2) at 4 (depo. at 16). Plaintiff and his coworkers worked in this office from December 2010 through November 2011. (Doc. 89-1) at 3; (Doc. 89-2) at 5 (depo. at 44). Plaintiff took leave in October 2011, receiving worker's compensation.[2] (Doc. 85-1) at 8, ¶ 10. After Plaintiff returned from leave in November 2011, Defendant moved Plaintiff into Room 205 of the Apodaca Building, an office on the second floor where he had access to a window. (Doc. 89-2) at 5 (depo. at 42-43).

         Plaintiff worked in this office from November 2011 through February 2014. (Doc. 89-1) at 3. Plaintiff kept the windows open when he worked in Room 205, pursuant to a doctor's recommendation that he get fresh air. (Doc. 89-2) at 4-5 (depo. at 16, 42-45). Plaintiff found Room 205 to be acceptable because of the fresh air. Id. at 5 (depo. at 44). Furthermore, Mr. Archibeque recognized that when Plaintiff had access to fresh air, Plaintiff did his work well. (Doc. 85-1) at 27 (depo. at 63-64).

         Additionally, from November 2011 through April 2014, Plaintiff saw several doctors who provided him with “Doctor Visit/Modified Work Assignment” forms from the New Mexico Risk Management Division (“NMRMD”). (Doc. 85-1) at 55-59, and 62. Each form details Plaintiff's medical diagnosis as “chemical exposure, ” and restricts Plaintiff from future exposure to the basement or “contaminated area” in the Apodaca Building. (Doc. 85-1) at 55-59, and 62. As instructed, Plaintiff returned these forms to Defendant. Id.; (Doc. 89-2) at 3-6 (depo. at 6-9, 16-17, and 45-49).

         Plaintiff saw several other medical professionals about his illness. (Doc. 89-3) at 7-8. Among the medical professionals was clinical health psychologist, Dr. Paul Donovan, [3] who, on or about April 9, 2012, diagnosed Plaintiff “as suffering from Cognitive Disorder, not otherwise specified (‘NOS'); chronic [post-traumatic stress disorder (‘PTSD')]; Major Depressive Disorder, severe with psychotic features; Somatoform Disorder; Pain Disorder associated with psychological factors and a medical condition; Panic Disorder; and Impulse Control Disorder, NOS.” (Doc. 89-6) at 4, ¶ 8. In his affidavit, Dr. Donovan attests that Plaintiff's “PTSD, and his decompensation episodes, were caused, or at least greatly exacerbated by, events at work.” Id. at 5, ¶ 12. Moreover, Dr. Donovan notes that the “traumata and PTSD that [Plaintiff] suffered was triggered by the onset of physiological symptoms that he began to experience in the fall of 2010.” Id.

         In late February 2014, Plaintiff and the whole IT team moved back to the basement of the Apodaca Building-Room G-15. (89-1) at 3; (Doc. 102-1) at 3. Plaintiff agreed to the move after Mr. Archibeque told Plaintiff on a daily basis that Plaintiff was not a “team player” because he would not join the IT team in the basement.[4] (Doc. 89-2) at 7 (depo. at 90-91). Plaintiff talked to his doctors about the move and with their permission he decided to move to Room G-from motor-vehicle accidents to dog-bites to nuclear radiation exposure, in close cooperation with my medical colleagues, including neurologists, neurosurgeons, physiatrists, 15 in the basement. Id. at 7 (depo. 91-92). On February 25, 2014, Plaintiff provided Mr. Giles with doctors' orders approving the move to the basement of the Apodaca Building. (Doc. 85-1) at 60.

         Plaintiff stayed in the basement for a few days in late February until his doctors requested he be moved because he “started feeling uneasy” and “got sick.” (Doc. 89-2) at 7 (depo. at 90-92); (Doc. 85-1) at 67 (depo. at 51). Plaintiff informed Mr. Archibeque of his illness, [5] and Defendant then moved Plaintiff in early March 2014 to the second floor of the Apodaca Building into Room 236. (Doc. 89-2) at 7-8 (depo. at 93-94). Unlike Room 205, Plaintiff did not have access to fresh air through open windows in Room 236, [6] a situation which Plaintiff asserted negatively affected his health. Id. at 8 (depo. at 94-95).

         On April 21, 2014, Plaintiff requested by letter and email to move from Room 236 to another office in the Apodaca Building or in the Defendant's North Building. (Doc. 89-8) at 4. In his request, Plaintiff provided statements from Dr. Donovan and Dr. Belyn Schwartz, [7] both of whom recommended Defendant move Plaintiff to the North Building. Id. at 5-6. This information was emailed to Mr. Giles and copied to Mr. Archibeque. Id. at 2-6. Id. at 2-6. On April 25, 2014, Plaintiff supplemented his request with a note from another of his doctors, Dr. Anthony Holzgang, a staff psychiatrist at Christus, St. Vincent. (Doc. 89-9) at 5. Dr. Holzgang concurred with Drs. Donovan and Schwartz, noting that Plaintiff's move back to the basement in February 2014 negatively affected Plaintiff and that Plaintiff should be assigned to a different building. Id.

         On May 9, 2014, Mr. Aguilar sent Plaintiff a letter denying Plaintiff's request to move to the North Building. (Doc. 89-10) at 2-3. Mr. Aguilar later testified that he could not make a decision on Plaintiff's request until an independent medical examination (“IME”) was completed. (Doc. 85-1) at 78 (depo. at 88-89). Ms. Urban requested an IME in 2013 to assist her in handling Plaintiff's workers' compensation claim. (Doc. 102-6) at 2 (depo. at 16-17); id. at 4 (depo. at 31).

         After being denied his request to move from Room 236, Plaintiff took paid leave from June 5, 2014, through August 29, 2014. (Doc. 85-1) at 8, ¶ 10. During his leave, Plaintiff received a positive employee evaluation, indicating he met or exceeded performance standards across several areas. (Doc. 85-1) at 32-39. Plaintiff returned to work in Room 236 in late August 2014. Id. at 8, ¶ 10.

         On October 9, 2014, a member of the IME panel, which was still conducting its analysis, informed Ms. Urban that Plaintiff needed to be removed from the Apodaca Building immediately. Id. at 83 (depo. at 26); id. at 85. That same day, Ms. Urban informed Mr. Giles, id. at 83 (depo. at 26-27), who in turn instructed Plaintiff to leave the Apodaca Building for health reasons. Id. at 69-70 (depo. at 97-98). Mr. Giles also informed Mr. Archibeque and Mr. Aguilar of Plaintiff's need to leave the Apodaca Building. Id. at 70 (depo. at 99). Plaintiff went home that day and Defendant placed him on workers' compensation leave. Id.

         On October 13, 2014, Plaintiff filed for Disability Retirement Benefits through the Public Employees Retirement Association of New Mexico (“PERA”). Id. at 102-103. In his application, Plaintiff stated he was totally and permanently disabled, and that the nature of his condition included: “[PTSD], Major Depressive Disorder, Panic Disorder, Neurotoxic Disorder, Anxiety, fatigue, Parethesias, Ataxia, Sleep Disorder, Carpal Tunnel, Arm and leg pain.” Id. at 102. Plaintiff asserted his condition was a result of his job, explaining that it stemmed from exposure to “multiple chemicles [sic], black mold, low level of oxygen and questionable exposure to asbestos.” Id. Plaintiff noted he could not work because he was “unable to focus, anxeity [sic], depression, fatigue, chemical sensitivity, headaches, physical issues.” Id.

         The next day, October 14, 2014, Plaintiff was admitted to Christus St. Vincent Psychiatric Unit, for severe depression and suicidal ideations. (Doc. 89-3) at 8. Dr. Donovan attested that Defendant's May 2014 refusal to move Plaintiff to another office and to leave Plaintiff in “an isolated, windowless office … set him up to be further destabilized by a process of sensory deprivation and isolation.” (Doc. 89-6) at 6, ¶ 15. Dr. Donovan further noted that because Plaintiff did not work in another location, Plaintiff “suffered a severe setback and worsening of his mental status, ” that culminated in the October 2014 “‘mini-breakdown' (personality disorganization) requiring hospitalization.” Id. at ¶ 17.

         On December 11, 2014, Plaintiff was notified that the PERA Disability Review Committee approved a one year disability retirement pension, finding Plaintiff's disability to be “duty related.” (Doc. 85-1) at 104-107. On December 15, 2014, Plaintiff then filed an initial claim for disability with the Social Security Administration (“SSA”), claiming the same conditions he listed in his PERA disability application. Id. at 89-96.

         Plaintiff resigned effective January 2, 2015, asserting health issues. (Doc. 89-14) at 2. Plaintiff was on workers' compensation leave from October 10, 2014 through January 2, 2015. (Doc. 85-1) at 8. Plaintiff did not seek other employment because his mental condition prevented him from concentrating. (Doc. 89-3) at 12. Additionally, Plaintiff expressed that when Defendant decided to place him on workers' compensation leave rather than allow him to move to the North Building he was left “with the conclusion that [Defendant] did not want me working there anymore.” Id. at 11.

         Dr. Warren M. Steinman, Ph.D., reported on May 29, 2015, that Plaintiff is disabled for purposes of SSA disability, and “Medical Improvement not Expected.” (Doc. 85-1) at 96. In a separate letter, SSA noted that Plaintiff “was found disabled for the following reasons [sic] disorders of back (discogenic & degenerative) and anxiety disorders.” (Doc. 114-1) at 16. In a letter dated September 19, 2015, SSA found Plaintiff to be disabled under its rules as of June 5, 2014. (Doc. 85-1) at 107.

         B. Facts Relevant to Sex Discrimination Claims

         Plaintiff asserts that Defendant allowed other employees to move offices during 2013 and 2014. For example, Defendant allowed Donna Intriere to work from home two days per week for a ninety-day period because of a personal issue.[8] (Doc. 87-1) at 9-10 (depo. at 111-116). Ms. Intriere otherwise worked in the North Building. Id. at 10 (depo. at 114-115). In 2014, Defendant allowed another female employee, Rachel Stofocik, to work from home because of her concerns about air quality in the Apodaca Building. Id. at 8 (depo. 107-108). However, Mr. Aguilar did not approve Ms. Stofocik's request to work from home and required her to return to work in the Apodaca Building. Id. When Ms. Stofocik requested a move to another building, Mr. Aguilar denied her request, and she subsequently resigned. Id. at 9 (depo. at 110). In the summer of 2014, Mr. Aguilar did approve a temporary office move for Miriam Moorhouse from the Apodaca Building to the North Building. Id. at 10 (depo. at 116-117). Mr. Aguilar approved Ms. Moorhouse's request to move because work done in the hallways had inflamed her asthma. Id. at 11 (depo. at 118-119). Ms. Moorhouse was not in the North Building for longer than a week. Id. at 10 (depo. at 117). Mr. Aguilar also noted in his deposition testimony that there was space for Ms. Moorhouse at the North Building in the summer of 2014. Id. at 11 (depo. at 118).

         C. Facts Relevant to ...

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