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Ortega v. New Mexico Legal Aid, Inc.

United States District Court, D. New Mexico

February 27, 2019

MINA ORTEGA, Plaintiff,
v.
NEW MEXICO LEGAL AID, INC.; ED MARKS; SIEMPRE UNIDOS EN PROGRESO; UAW LOCAL 2320 INTERNATIONAL UNITED AUTO WORKERS; DONIS BORKS; GORDON DEANE; ALICIA CLARK; AFL-CIO, Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION[1]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mina Ortega, a former employee of New Mexico Legal Aid, Inc. (NMLA), filed this lawsuit to vindicate claims arising out of the termination of her employment and the manner in which her grievance was handled by her union, Defendant Siempre Unidos en Progreso and the union's representatives. THIS MATTER is before the Court on three motions to dismiss: (1) Defendants Union, Borks, Deane and Clark's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed on April 24, 2018 (Doc. 15), to which Plaintiff responded on June 25, 2018 (Doc. 33), and as to which the Union, Borks, Deane and Clark replied on July 10, 2018 (Doc. 39); (2) the Motion to Dismiss Plaintiff's Claims Against New Mexico Legal Aid & Ed Marks and Memorandum Brief in Support, filed on April 24, 2018 (Doc. 16), to which Plaintiff responded on June 27, 2018 (Doc. 35), and as to which NMLA and Ed Marks replied on July 19, 2018 (Doc. 46); and (3) the Motion to Dismiss Plaintiff's Claims Against Ed Marks, Individually and as Director of New Mexico Legal Aid, Inc., and Memorandum Brief in Support, filed on April 24, 2018 (Doc. 17), to which Plaintiff responded on June 27, 2018 (Doc. 34), and as to which Ed Marks replied on July 12, 2018 (Doc. 41). Each motion is brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 15 at 1; Doc. 16 at 5; Doc. 17 at 3.) The Court also considers Plaintiff's Motion for Leave to File Surreply to NMLA Defendants' Motion to Dismss Plaintiff's Amended Complaint (Doc. 52) filed on August 6, 2019), to which the NMLA Defendants responded on August 22, 2018 (Doc. 53), and as to which Plaintiff replied on September 10, 2018 (Doc. 57).

         I. Standards Governing a Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff's complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In undertaking this analysis, the Court considers “the complaint as a whole, along with the documents incorporated by reference into the complaint, ” construes all well-pled allegations in the light most favorable to the plaintiff. Nakkhumpun v. Taylor, 782 F.3d 1142, 1146 (10th Cir. 2015). “Well-pled” means that the allegations are “plausible, non-conclusory, and non-speculative.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts “disregard conclusory statements and look only to whether the remaining . . . factual allegations plausibly suggest the defendant is liable.” Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015).

         II. Background[2]

         Plaintiff was employed by NMLA as a staff attorney from October 27, 2008 until January 30, 2014, when she was discharged on the ground of alleged gross misconduct. (Doc. 7 at 2-3, 16.) Defendant NMLA is a non-profit corporation of the State of New Mexico, with its principal office in Albuquerque, New Mexico. (Doc. 7 at 2.) Defendant Ed Marks is the Executive Director of NMLA. (Doc. 7 at 2.) NMLA is party to a collective bargaining agreement with Defendant Siempre Unidos en Progreso, a Unit of the National Organization of Legal Services Workers/AUW Local 2320 International United Auto Workers, AFL-CIO (the Union). (Doc. 7 at 2.) Defendant Alicia Clark was the grievance chair for the Union; Defendant Donis Borks was the Union organizer and representative; and Defendant Gordon Deane was the Union president.[3](Doc. 7 at 2-3.)

         The Collective Bargaining Agreement between NMLA and the Union (the CBA) governs employee discipline, discharge, and grievance processes, and the following CBA provisions are relevant to Plaintiff's claims and allegations.[4]

         Article 5.3 of the CBA, which governs “progressive discipline, ” provides that:

a. The Employer may discipline an employee only for just cause after investigating the basis for the disciplinary action.
b. Discipline shall not be used in an arbitrary and capricious manner.
c. Any and all disciplinary procedures shall be commenced within five (5) days of the alleged infraction or its discovery, whichever is later. Intervening leave time taken by the supervisor involved or the employee tolls the five day period.”
d. Suspension for gross misconduct are (sic) exempt from disciplinary procedures and are instead subject to Article 5.5(b)[.]

(Doc. 15-2 at 10.)

         Article 5.6 governs “discharge” and it provides that An employee, not on probation, [5] may be discharged only for just cause and if one of the two following circumstances exists:

a. An employee, not on probation, may be discharged only for one of the following two circumstances:
1. The Employer has complied with Article 5.4[6] and 5.5[7] in their entirety and the employee is still in noncompliance; or
2. Gross misconduct, as defined in Section 5.7[.]
b. Upon being contacted by any prospective Employer for a job reference for a discharged persons, the Employer will make no comment about the employee other than to confirm fact and dates of employment, job title and whether or not the individual is eligible for rehire, if asked.

(Doc. 15-2 at 11-12.)

         Article 5.7 of the CBA Provides as follows:

GROSS MISCONDUCT: includes but is not limited to: job related theft, intoxication, violent behavior, including threats; concealment or intentional destruction of client records or documents, unless permitted by program policies; illegal harassment; unauthorized outside practice of law; charging clients for services; and job related willful endangerment of employees, or clients.
a. An employee may be immediately suspended without pay for gross misconduct, pending a hearing before the Executive Director or his or her designate. The employee may also be discharged. If the employee is to be discharged, the Employer will provide the employee with written notice of the reasons for the discharge. Said notice will be maintained permanently in the employee's personnel file, unless the discharge is overturned through the grievance procedure.
b. An employee shall have the right to Union representation at all stages of discharge for gross misconduct proceedings.
c. The Union or the Union on behalf of the employee may appeal a suspension or a discharge decision made by the Executive Director by requesting, within fifteen (15) working days of the receipt of the Director's written decision, that a mediator be selected through the Federal Mediation and Conciliation Service pursuant to mediation provision in Article 6.9(d).

(Doc. 15-2 at 12.)

         Pursuant to Article 6.9 of the CBA, the Union may pursue a formal grievance process on behalf of a discharged employee in four steps: a formal written grievance to the supervisor, a formal written appeal of the grievance to the executive director, mediation, and arbitration. (Doc. 15-2 at 13-14.)

In its notice stating the grounds for discharging Plaintiff, NMLA cited
(1) gross misconduct including but not limited to gross and repeated insubordination regarding essential, case-related tasks despite clear direction from your managing attorney and NMLA Litigation Director, (2) concealment or intentional destruction of client records or documents, (3) job related willful endangerment of New Mexico Legal Aid, NMLA employees and NMLA clients[, ] and . . . suspected falsification of NMLA records.

(Doc. 7 at 14-15.) Plaintiff asserts that the allegations in the notice of discharge stemmed from two discrete incidents in December 2013 and January 2014, respectively, neither of which constituted gross misconduct as defined in the CBA.

         The first incident occurred in December 2013[8], and involved an issue concerning Plaintiff's time sheet. (Doc. 7 at 15-17.) Plaintiff alleges that although this incident-in which Plaintiff was, in sum, accused of falsifying her timesheet-was resolved 43 days before she was discharged, and although it was not specifically identified in her discharge notice, a letter from NMLA's counsel (received by Plaintiff or the Union during the grievance process) cited the time-sheet incident as grounds for Plaintiff's discharge. (Doc. 7 at 16.) In that regard, Plaintiff alleges that although she was disciplined in an untimely[9] written warning related to the time-sheet incident, “NMLA [later] called it gross misconduct and discharged [her].” (Doc. 7 at 17.)

         The second incident occurred on January 17, 2014, and involved an argument between Plaintiff and her supervisor over a case file.[10] The file incident resulted in Plaintiff's supervisor giving her a written warning on January 18, 2014. (Doc. 7 at 17.) On January 28, 2014-eleven days after the incident, [11] Plaintiff's supervisor gave her a second written warning pertaining to the file incident; the second warning stated that Plaintiff had become belligerent, and berated and yelled at her supervisor-conduct that Plaintiff denies. (Doc. 7 at 19.) This warning was issued pursuant to Article 5.4 of the CBA, which governs “written warnings, ” and provides, in part, that an employee is entitled to three written warnings-each of which “must include a description of the alleged infraction or discovery thereof, a specific description of the incidents or behavior precipitating the action[.]” (Doc. 7 at 19; Doc. 15-2 at 10-11.)

         Plaintiff alleges, further, that NMLA “appears to have . . . dropped” the allegation of “concealment or intentional destruction of client records” which, she alleges, was “an outrageous and false accusation.” (Doc. 7 at 19.)

         After being discharged from employment on January 30, 2014, Plaintiff asked Union Organizer and Representative Donis Borks whether she could challenge her termination in court instead of pursuing the grievance procedure outlined in the CBA. (Doc. 7 at 3.) Mr. Borks advised Plaintiff that she could not challenge her termination in court, but that she could file a lawsuit to pursue any other claims that she may have as a result of her discharge. (Id.)

         On February 19, 2014, Union Grievance Chair Alicia Clark submitted a grievance on behalf of Plaintiff. (Doc. 7 at 3.) In a February 25, 2014, letter NMLA's counsel alerted the Union (Ms. Clark particularly) to NMLA's position that the Union had failed to comply with Article 5.7(c) of the CBA, which requires that the Union request mediation within 15 days of an employee's discharge. (Doc. 7 at 4.) The letter stated that mediation was the only remedy available to Plaintiff. (Id.) And it stated, as well, that the Union had erroneously filed the grievance under Articles 5.3 (governing progressive discipline), 6.4 (governing informal resolution of disputes between employees and their supervisors), and 5.6 (governing discharge[12]). (Id.; Doc. 15-2 at 10-13.) This notwithstanding, it is clear from the allegations in the Complaint that the grievance process continued.

         After her grievance had been filed, Plaintiff discovered a provision of the CBA, that provides: “[n]othing contained herein shall limit or otherwise exclude any grievant from seeking redress from any government agency, regulatory body or court of law, ” and which, therefore, contradicted what Mr. Borks had told her regarding pursuing her claims in court. (Doc. 7 at 3; Doc. 15-2 at 13.) Plaintiff brought this provision to the attention of Ms. Clark and Mr. Borks; and, in a March 14, 2014, letter, Ms. Clark advised Plaintiff that she was not prohibited under the CBA from seeking redress in court, but the Union was not required to represent Plaintiff in that forum or to do legal research on her behalf “on that issue.” (Doc. 7 at 3.) Two months later, on May 14, 2014, Ms. Clark changed her position, advising Plaintiff in a letter that all employment contract issues were governed by the CBA's binding arbitration clause and, therefore, Plaintiff could only pursue in court those claims not covered by the CBA. (Doc. 7 at 3.)

         In an April 4, 2014, letter NMLA's counsel responded to the Union's “Step 3 Written Appeal” (which, as applied to a discharged employee, is the second step in the grievance process in which the Union presents the grievance to the Executive Director). (Doc. 7 at 7; Doc. 15-2 at 14.) Mr. Borks and Ms. Clark held a conference call with Plaintiff to discuss the contents of the letter. (Id.) Mr. Borks abruptly ended the conference call without learning Plaintiff's response to “many” of NMLA's allegations. (Id.) ...


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