United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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).
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.
Plaintiff's Amended Complaint
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.
Defendant's First Motion for Summary Judgment
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.
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.
Defendant's Second Motion for Summary Judgment
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.
Plaintiff's Motion for Partial Summary Judgment
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
Facts Relevant to Failure to Accommodate Claims and
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.
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.
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. (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).
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).
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).
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,
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.
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. (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.
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,
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,  a situation which Plaintiff asserted
negatively affected his health. Id. at 8 (depo. at
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,  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.
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).
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.
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.
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.
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.
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.
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.
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.
Facts Relevant to Sex Discrimination Claims
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. (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).
Facts Relevant to ...