United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER
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. Present at the hearing were attorney
Michael E. Mozes, on behalf of Plaintiff, and Michael R.
Heitz, on behalf of Defendants.
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. Both parties then moved for summary
judgment, Plaintiff on Count I only, against the three
individual Defendants, and Defendants as to all remaining
claims. After considering the briefing,
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.
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.
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.
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.
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.
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.
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).
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.
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
Plaintiff's Motion - FMLA Interference Claim
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