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Chavez v. City of Albuquerque

United States District Court, D. New Mexico

May 31, 2018

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.


         On 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).[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.[2] On August 16, 2017, Defendants Answered the Complaint.[3] On October 17, 2017, Plaintiff filed a motion to amend her complaint.[4] The Court granted the motion to amend.[5]On October 25, Plaintiff filed an Amended Complaint (“Amended Complaint”).[6] 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.[7] The Defendants answered the Amended Complaint on November 13, 2017.[8]

         On 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.[9] On April 27, 2018, Defendants replied.[10]Because Plaintiff's NMWPA claim is plausible, the Court will deny Defendants' Motion.


         At any 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).

         A Rule 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.

         A 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).


         In 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.[11] (Doc 18, ¶ 11).

         As part 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).

         In 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).

         In July 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).

         In 2016, [12] 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).

         Around 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).

         On 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 ...

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