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Cordova v. State

United States District Court, D. New Mexico

November 2, 2018

LOUIS T. CORDOVA, Plaintiff,
STATE OF NEW MEXICO, University of New Mexico Hospital, EDUARDO LOPEZ, in his individual capacity, CAROL HILTON, in her individual capacity, and DEINNA DURES, in her individual capacity, Defendants.


         On October 30, 2018, the Court held a pretrial conference and motions hearing on Plaintiff Louis Cordova's claims brought against his former employer, State of New Mexico governmental entity the University of New Mexico Hospital (UNMH), and his former supervisors, individual UNMH employees Eduardo Lopez, Carol Hilton, and Deinyna Duenas, improperly identified as “Deinna Dures” (collectively, Defendants), arising out of Plaintiff's separation from his employment with UNMH.[1] Present at the hearing were attorney Michael E. Mozes, on behalf of Plaintiff, and Michael R. Heitz, on behalf of Defendants.

         The Court had previously denied Defendants' Motion to Dismiss Plaintiff's claims, with the exception of Counts I, II, and III, which the Court dismissed with prejudice as to UNMH, and Count IV, which the Court dismissed with prejudice as to all Defendants.[2] Both parties then moved for summary judgment, Plaintiff on Count I only, against the three individual Defendants, and Defendants as to all remaining claims.[3] After considering the briefing, [4] arguments of counsel, and the relevant law, the Court will grant Plaintiff's Motion as to individual Defendants Lopez and Hilton but will deny the Motion as to Defendant Duenas. Because genuine issues of fact remain, the Court will deny Defendants' Motion in its entirety.

         I. BACKGROUND

         Plaintiff was employed by UNMH from October 30, 2007, until March 23, 2016. Compl. ¶¶ 14-15. Plaintiff has a diagnosis of post-traumatic stress disorder (PTSD) and a history of trauma, which causes him to suffer acute anxiety and panic attacks, among other symptoms. Plaintiff's Mot., Statement of Undisputed Material Facts (UMF) ¶¶ 6, 9, Ex. 7. Plaintiff had been able to work with the aid of medications, but due to increased symptoms in February of 2016, Plaintiff's medical providers recommended that he begin structured therapy and receive more consistent treatment. Id.; Compl. ¶¶ 18-19. Plaintiff began receiving treatment and therapy through Outcomes, a UNMH-sponsored health care program for employees who are in crisis or need mental health counseling. Plaintiff's Mot. UMF ¶ 6; Compl. ¶ 20.

         On March 7, 2016, after Plaintiff had experienced an episode of severe anxiety, Plaintiff received a letter from Mimi Kessinger, a physician assistant at UNMH's Department of Medicine, indicating that he should be excused from work for approximately ten days. Plaintiff's Mot., UMF ¶ 4, Ex. 3; Compl. ¶ 22. Plaintiff asserts that he gave this letter to Defendant Deinyna Duenas, one of Plaintiff's supervisors in UNMH's preregistration department, on or about March 7, 2016. Plaintiff's Mot., UMF ¶ 5, Ex. 4. Defendants dispute this, arguing that Ms. Duenas' deposition testimony reflects only that she “may have” seen the note. Defendants' Resp., Disputed Material Facts (DMF) ¶ 2. The deposition testimony demonstrates that Ms. Duenas believes she saw the note on or about March 7, 2016, and it is possible that Plaintiff may have handed it to her, but she does not recall. Ex. 4.

         On March 17, 2016, Plaintiff received a note from Outcomes health care provider Daniel Crowder disclosing that Plaintiff had been experiencing acute anxiety and panic attacks and had been treated at Outcomes on March 10, 2016, and March 17, 2016. Plaintiff's Mot., UMF ¶ 6, Ex. 5. In the letter, Mr. Crowder recommended continuing outpatient therapy but stated that Plaintiff had reached a level of stability that would allow him to return to work, although he might need brief breaks if he began to experience symptoms of panic. Id. Also on March 17, 2016, Mr. Crowder filled out and signed an FMLA Certification of Health Care Provider, noting that (1) Plaintiff had a history of trauma and had been diagnosed with PTSD; (2) Plaintiff's medical condition caused episodic symptoms, including acute, overwhelming anxiety and panic attacks, avoidance of stimuli, and alterations in cognition that exacerbated anxiety and depression; (3) periodic increases in Plaintiff's symptoms, that could temporarily prevent Plaintiff from performing his job functions and cause him to be ineffective at work, were expected to occur one to two times per day and to last about an hour; and (4) Mr. Crowder recommended that Plaintiff receive weekly or bimonthly therapy for six months to a year. Plaintiff's Mot., UMF ¶¶ 8-9, Ex. 7.

         Plaintiff returned to work on March 18, 2016, and gave the FMLA Certification to his supervisor, Defendant Eduardo Lopez. Plaintiff's Mot. at 1, UMF ¶¶ 7, 10, 15, Ex. 2. Plaintiff also gave Mr. Lopez a UNMH Notice of Eligibility and Rights & Responsibility form for FMLA leave. Plaintiff's Mot., UMF ¶ 11, Ex. 2, Ex. 8. Mr. Lopez does not recall filling out the Notice, but his signature is on the Notice and he submitted the paperwork to UNMH Human Resources (HR) for processing on March 18, 2016. Plaintiff's Mot., UMF ¶¶ 12, 16, 18, Ex. 2, Ex. 8. The supervisor's section of the Notice had been filled out, but it indicated that Plaintiff would not require a workplace accommodation despite the provider's statement in the FMLA certification that Plaintiff's condition would periodically render Plaintiff unable to perform his job for approximately 1 hour, 1-2 times per day. Plaintiff's Mot., UMF ¶¶ 9, 17, Ex. 7, Ex. 8.

         On March 23, 2016, Plaintiff was at work when he went to Mr. Lopez and stated that he needed to go home because of an “FMLA thing.” Plaintiff's Mot., UMF ¶ 23, Ex. 2. Mr. Lopez called his supervisor, Defendant Carol Hilton, and told her of Plaintiff's request. Plaintiff's Mot., UMF ¶¶ 24-25, Ex. 2, 10-11. Mr. Lopez and Ms. Hilton were both aware that Plaintiff was requesting FMLA leave. Id. However, Ms. Hilton told Mr. Lopez that Plaintiff could not go home because he was needed at work. Plaintiff's Mot., UMF ¶ 24, Ex. 2, Ex. 10. Mr. Lopez did not permit Plaintiff to go home. Plaintiff's Mot., UMF ¶ 26, Ex. 2, Ex. 10. Plaintiff states that Mr. Lopez believed he did not have to grant Plaintiff's FMLA leave while Plaintiff's leave request was still being processed, see id., whereas Defendants state that Mr. Lopez believed Plaintiff was not eligible for FMLA leave because his requested leave had not yet been approved. Defendants' Resp., DMF ¶ 13.

         After Mr. Lopez told Plaintiff that he could not go home, Plaintiff continued to work. Plaintiff's Resp., DMF ¶ 8. Mr. Lopez later met with Plaintiff about his productivity. Defendant's Mot., UMF ¶ 8. Plaintiff asserts that Mr. Lopez “badgered” him in this meeting, and that as a result of this badgering Plaintiff's anxiety increased, he suffered a panic attack, and he left his workplace to seek medical treatment, leaving his UNMH badge behind. Plaintiff's Resp., DMF ¶ 8. Defendants contend that Plaintiff's actions in leaving work without authorization and without his employee badge constituted a voluntary resignation. Defendant's Mot., UMF ¶ 8. But Plaintiff denies having any intent to resign. Plaintiff's Resp., DMF ¶ 9. Plaintiff's significant other, Danielle Telles, called Ms. Duenas and Ms. Hilton at Plaintiff's request to report Plaintiff's absence from work. Plaintiff's Resp., DMF ¶¶ 11, 16, Ex. 7. On March 24, Plaintiff obtained a work excuse note from his medical providers stating that he would return to work on March 28, 2016. Defendant's Mot., UMF ¶ 17. However, prior to his projected return, Plaintiff received a letter stating that he had voluntarily resigned from his employment with UNMH. Defendant's Mot., UMF ¶ 19. This letter was drafted by Ms. Hilton on March 23, 2016, based on the report from Mr. Lopez that Plaintiff had resigned. Defendant's Mot., UMF ¶ 20. Based on these circumstances, Plaintiff filed suit against all Defendants for FMLA interference (Count I), FMLA retaliation (Counts II and III), violation of due process (Count IV), breach of implied contract (Count V), retaliatory discharge (Count VI), and wrongful termination (Count VII).


         Plaintiff brings his claims under § 2615(a) of the FMLA, 42 U.S.C. § 1983, and New Mexico common law. Compl. ¶ 1. The Court has original jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state-law claims under 28 U.S.C. § 1367(a). Plaintiff asks the Court to grant summary judgment in his favor on his claim for FMLA interference against Mr. Lopez, Ms. Hilton, and Ms. Duenas. Defendants oppose Plaintiff's Motion and contend that they are entitled to summary judgment in their favor on all of Plaintiff's claims.

         Summary judgment may be granted if the moving party shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When applying this standard, [the Court] view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party.” Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000) (internal quotation marks omitted). On cross-motions for summary judgment the Court is entitled “to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). The Court will analyze each motion individually and on its own merits. See Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (explaining that “[c]ross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.”).

         A. Plaintiff's Motion - FMLA Interference Claim

         The FMLA entitles a qualified employee to take up to twelve weeks of leave during any twelve month period “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” § 2612(a)(1)(D). It is unlawful for any employer to interfere with or retaliate against an employee's exercise or attempted exercise of these rights. § 2615(a). “To establish an FMLA interference claim, ‘an employee must show that (1) he was entitled to FMLA leave, (2) an adverse action by his employer interfered with his right to take FMLA leave, and (3) this adverse action was related to the exercise or attempted exercise of the employee's FMLA rights.'” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 978 (10th Cir. 2017) (quoting Brown v. ScriptPro, LLC, 700 F.3d 1222, 1226 (10th Cir. 2012)). “A deprivation of these rights is a violation regardless of the employer's intent, and the McDonnell ...

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