United States District Court, D. New Mexico
CHANDELLE A. CHAVEZ, Plaintiff,
CITY OF ALBUQUERQUE d/b/a FAMILY AND COMMUNITY SERVICES DEPARTMENT, DOUGLAS CHAPLIN in his personal and official capacity, ELLEN BRADEN, in her personal and official capacity, and ANDREW QUINTANA, in his personal and official capacity, Defendant.
MEMORANDUM ORDER AND OPINION
August 9, 2017, Plaintiff Chandelle A Chavez
(“Plaintiff”) filed in the Second Judicial
District of the State of New Mexico a Complaint naming as
defendants the City of Albuquerque (“City”)
d/b/a/ Family and Community Services Department
(“FCSD”) and, in their personal and professional
capacity, Douglas Chaplin, Ellen Braden, and Andrew Quintana
(collectively “Defendants”). (Doc.
1-1). The five-count Complaint alleged claims
for violations of the New Mexico Whistleblower Protection
Act, Family Medical Leave Act, Fraud Against Taxpayers Act,
the New Mexico Human Rights Act, and Retaliatory Discharge
under New Mexico common law. On August 9, 2017, Defendants
filed a Notice of Removal to federal court based on federal
question jurisdiction. On August 16, 2017, Defendants Answered
the Complaint. On October 17, 2017, Plaintiff filed a
motion to amend her complaint. The Court granted the motion to
amend.On October 25, Plaintiff filed an Amended
Complaint (“Amended Complaint”). In the Amended
Complaint, Plaintiff restated her claims under the New Mexico
Whistleblower Protection Act, Family Medical Leave Act, and
the New Mexico Human Rights Act. The Defendants answered the
Amended Complaint on November 13, 2017.
March 13, 2018, Defendants filed a MOTION AND MEMORANDUM FOR
PARTIAL JUDGMENT ON THE PLEADINGS (Doc. 35)
(“Motion”). In their Motion, Defendants ask the
Court to dismiss on the pleadings Count 1of the Amended
Complaint for Violation of New Mexico Whistleblower
Protection Act, NMSA 1978 §§ 10-16C-1 to -6 (2010)
(“NMWPA”), for failure to state a claim for which
relief can be granted. Plaintiff responded and opposed the
Motion. On April 27, 2018, Defendants
replied.Because Plaintiff's NMWPA claim is
plausible, the Court will deny Defendants' Motion.
time after the pleadings are closed, but before trial begins,
a party may move for judgment on the pleadings under
Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is
evaluated under the same standard used in deciding Rule
12(b)(6) motions to dismiss. See Atlantic Richfield Co.
v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160
(10th Cir. 2000).
12(b)(6) motion “tests the sufficiency of the
allegations within the four corners of the complaint.”
Romero v. United States, 159 F.Supp.3d 1275, 1279
(D.N.M. 2015) (citation omitted). When considering a Rule
12(b)(6) motion, the court must accept as true all
well-pleaded factual allegations in the complaint, view those
allegations in the light most favorable to the non-moving
party, and draw all reasonable inferences in the
plaintiff's favor. Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). The allegations must
“state a claim to relief that is plausible on its
face.” Id. “The claim is plausible only
if it contains sufficient factual allegations to allow the
court to reasonably infer liability. Moya v. Garcia,
___F.3d ___, 2018 WL 1916322, *1 (10th Cir. April 24, 2018)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The term “plausible” does not mean
“likely to be true.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A claim
is facially plausible “when the plaintiff pleads
factual content that allows the court [a] reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. at 556).
The factual allegations must “raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555.
federal court exercising supplemental jurisdiction
“applies the substantive law . . . of the forum
state.” BancOklahoma Mort. Corp. v. Capital Title
Co., Inc., 194 F.3d 1089, 1103 (10th Cir. 1999).
However, when determining whether dismissal of a cause of
action is appropriate under 12(c) of the Federal Rules of
Procedure, a federal court applies federal law. See
Stickley v. State Farm Mut. Auto Ins. Co., 505 F.3d
1070, 1076 (10th Cir. 2007). The sufficiency of a pleading is
a procedural issue governed by the notice requirements of
federal law, but a court applies the substantive law of the
state to analyze the underlying claims. Id.
(applying federal standards to summary judgment); see
also Brokers' Choice of America, Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1099 (10th Cir. 2017) (applying
federal standards to motion to dismiss).
2013, after taking FMLA leave, Plaintiff was transferred from
her position at FCSD as a grant administrator to a position
in FCSD Health and Human Services Division. (Doc. 18,
¶¶ 21, 30, 31). Defendant Douglas Chaplin is the
acting director of FCSD. (Doc 18, ¶ 9). Defendant Ellen
Braden is the division manager for FCSD Health and Human
Services Division (hereinafter, “Health and Human
Services”) (Doc 18, ¶ 10). Ms. Braden was
Plaintiff's supervisor. (Doc 18, ¶¶ 32, 44,
45). Defendant Andrew Quintana is a Senior Personnel/Labor
Relations Officer. (Doc 18, ¶ 11).
of her job duties, Plaintiff conducted audits on service
providers. (Doc 18, ¶¶ 40, 46). In 2013, Plaintiff
audited a contract the City had with St. Martin's
Hospitality Center and discovered that St. Martin's
Hospitality Center was charging the City one and half times
the cost of the amount it spent for providing meals to the
homeless. (Doc. 18, ¶ 40, 42). When Plaintiff included
what she believed was an improper billing practice in her
audit report, Ms. Braden told Plaintiff to ignore it
“because that's how we have always done it.”
(Doc. 18, ¶44). Ms. Braden had conducted the audit of
St. Martin's Hospitality Center before Plaintiff took
over it. (Doc. 18, ¶ 43). Also in 2013, Plaintiff
audited All Faiths for services it provided to individuals
and families in its Safe House Program. (Doc. 18,
¶¶ 46, 47). Her audit revealed that All Faiths was
billing both the City and Medicaid for the same services.
(Doc 18, ¶ 48). When she included these findings in her
report, Ms. Braden asked Plaintiff to ignore the findings.
(Doc 18, ¶¶ 49, 50). Being new to her position, and
lacking training, Plaintiff did not question Ms. Braden.
(Doc. 18, ¶ 51).
2015, Plaintiff performed similar audits of St. Martin's
Hospitality Center and All Faiths. (Doc. 18, ¶ 52) She
made the same findings regarding what she believed to be
overbilling and double billing. Id. Again, upon
request by Ms. Braden, Plaintiff “reluctantly”
changed her findings. (Doc. 18, ¶ 53). In 2013, and
2015, when Plaintiff altered her findings, she felt as though
she had no choice but to comply with Ms. Braden's
instructions because she did not have the experience to
question her supervisor. (Doc. 18, ¶¶ 45, 51).
2015, Plaintiff filed an EEOC complaint against FCSD alleging
retaliation for taking leave under the FMLA to care for her
sick daughter. (Doc 18, ¶¶ 54, 59). In September
2015, Plaintiff filed an additional EEOC charge alleging
retaliation for filing her EEOC complaint. (Doc 18, ¶
60). That same month, Plaintiff was placed on a performance
improvement plan (PIP). (Doc 18, ¶ 61). The six-page PIP
was backdated to 2013, the date Plaintiff was transferred to
the Health and Human Services Division. (Doc 18, ¶ 62).
Plaintiff was told that the PIP was not discipline, but was a
means to help her improve her performance. (Doc. 18, ¶
67). However, after being placed on PIP, Plaintiff was not
provided with any meaningful way to improve her performance.
(Doc. 18, ¶ 68). Plaintiff asserts that the PIP
demonstrates that her transfer to Health and Human Services
was part of a plan to begin a paper trail that would lead to
her termination. (Doc. 18, ¶ 69). On November 19, 2015,
Plaintiff was placed on notice that the City was
investigating her for violation of its Personnel Rules and
Regulations for not meeting its expectation in the PIP. (Doc.
18, ¶ 72).
2016,  Plaintiff conducted another audit of St.
Martin's Hospitality Center and All Faiths. (Doc. 18,
¶ 55) (“2016 audit”). Again, she found
evidence of overbilling and double billing. (Doc. 18, ¶
52). This time, however, Plaintiff refused to alter any
findings in her report. (Doc 18, ¶ 56).
February 2016, Ms. Braden held weekly meetings with
Plaintiff, and as an action item to improve Plaintiff's
performance, Ms. Braden asked Plaintiff during one of these
meetings to change her findings relating to the All
Faith's Contract and/or change the Contract. (Doc. 18,
¶ ¶ 88, 90). Plaintiff knew or believed that her
supervisor's request “was improper, illegal, and in
violation of the written contract between these entities and
Defendant City, ” so she did not change her findings.
(Doc. 18, ¶ 56). At some unspecified date, Mr. Quintana
also spoke with Plaintiff about changing her findings,
informing her that if she did not change her findings as
instructed by Ms. Braden, she could be fired for
insubordination. (Doc. 18, ¶ 91).
April 11, 2016, Plaintiff was suspended without pay. (Doc 18,
¶ 92). The stated reason for the suspension was that
Plaintiff did not follow through with projects and was not
meeting deadlines. Id. On July 5, 2016, Plaintiff
received notice that she was being accused of
misappropriating funds. (Doc. 18, ¶ 94). On August 11,
2016, Plaintiff's employment was terminated. (Doc. 18,
¶ 103). Plaintiff alleges that the suspension and
termination were retaliation for Plaintiff's ...