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Rivero v. Board of Regents of University of New Mexico

United States District Court, D. New Mexico

March 7, 2019

DENNIS P. RIVERO, M.D., Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO d/b/a UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER, Defendant.

          Eric D. Norvell Eric D. Norvell, Attorney, P.A. Carlsbad, California Attorney for the Plaintiff

          Alfred A. Park Lawrence M. Marcus Park & Associates, LLC Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND AMENDED ORDER [1]

         THIS MATTER comes before the Court on: (i) the Defendant University of New Mexico Board of Regents' Motion and Memorandum for Summary Judgment, filed December 5, 2017 (Doc. 139); (ii) the Defendant University of New Mexico Board of Regents' Amended Motion and Memorandum for Summary Judgment, filed December 8, 2017 (Doc. 143)(“UNM's MSJ”); (iii) the Plaintiff's Motion for Summary Judgment and Memorandum of Law as to Certain of Defendant Board of Regents of the University of New Mexico's Affirmative Defenses, filed December 8, 2017 (Doc. 144)(“Rivero's MSJ”); (iv) the Plaintiff's Motion in Limine to Exclude Complaints Against Plaintiff Prior to 2006, filed December 8, 2017 (Doc. 145)(“Complaints MIL”); (v) the Plaintiff's Motion in Limine to Prohibit and Exclude Use of the Term “Psychological” in Reference to “Psychiatric” Evaluations, filed December 8, 2017 (Doc. 146)(“Psychological MIL”); and (vi) the Plaintiff's Motion to Recuse the Honorable James O. Browning, filed July 17, 2018 (Doc. 203)(“Recusal Motion”). The Court held hearings on June 26, 2018, and August 13, 2018. The primary issues are: (i) whether the Court may reconsider the Honorable William P. Lynch's, United States Magistrate Judge for the District of New Mexico, ruling on the illegal-medical-inquiry claim's date of accrual in the Order Denying Motion to Dismiss, filed December 22, 2016 (Doc. 43)(“MTD Order”); (ii) whether Plaintiff Dennis Rivero, M.D.'s claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794, of an improper medical examination and constructive discharge based on UNM's[2] request for psychiatric evaluations is time-barred, because Dr. Rivero filed suit five years after the request was made; (iii) whether UNM improperly required Dr. Rivero to submit to psychiatric evaluations as a condition of his return to full-time employment when it believed that he had a history of a lack of professionalism; (iv) whether UNM constructively discharged Dr. Rivero by revoking its offer of full-time employment after Dr. Rivero objected to the evaluations and by allegedly asking for the evaluations without a legitimate basis; (v) whether Dr. Rivero stated a claim for retaliation that is preserved for trial, because UNM did not address this claim in its MSJ; (vi) whether the Court should strike UNM's affirmative defenses (I), (II), and (III) --“Plaintiff failed to state a claim for which relief can be granted, ” “Plaintiff's claims are barred by the statute of limitations, ” and “Plaintiff's claims are barred by the doctrine of laches and waiver, ” Rivero's MSJ ¶ 11, at 9 -- because Magistrate Judge Lynch addressed these defenses in the MTD Order; (vii) whether the Court should strike UNM's affirmative defenses (XIII) and (XIV) -- “At all times Defendant UNM acted in accordance with its policies and regulations, and applied such polices and regulations consistently and fairly” and “Defendant UNM fulfilled any and all obligations it had to Plaintiff under contract or statute, ” Rivero's MSJ ¶ 11, at 9 -- for being without factual support; (viii) whether the Court should strike UNM's affirmative defense (XV) -- “Defendant reserves the right to amend its Answer to Plaintiffs' Complaint to include additional Affirmative Defenses once facts supporting same become known, ” Rivero's MSJ ¶ 11, at 9 -- for being without substance; (ix) whether the Court should exclude complaints against Dr. Rivero made before 2006 for being irrelevant; (x) whether the Court should preclude UNM from using the term “psychological” instead of “psychiatric” in reference to the examination requirement it imposed on Dr. Rivero, because the term “psychological” is misleading; and (xi) whether the Court should recuse itself from this case because the Honorable James O. Browning, United States District Judge for the District of New Mexico, the presiding judge, has taught a semester-long class at the University of New Mexico School of Law (“School of Law”) on five occasions, waiving all pay on three occasions and reallocating his pay to fund a law student's help in writing a law review article in the fall of 2015 and 2017 -- although on three occasions his waiver of pay may have been treated by UNM as a donation to UNM -- and because he has been acquainted with several Regents from the University of New Mexico Board of Regents (“Board of Regents”), including the current President and the Student Regent for 2017-2018. As to UNM's MSJ, the Court concludes that, viewing the evidence in the light most favorable to Dr. Rivero: (i) the Court may and will reconsider the MTD Order; (ii) Dr. Rivero's claim of an improper medical inquiry under the Rehabilitation Act is time-barred, but his constructive discharge claim is not; (iii) the complaints relating to Dr. Rivero's professionalism provide UNM with a legitimate basis to seek psychiatric examinations; (iv) UNM's request for psychiatric examinations was not a discriminatory act and, thus, cannot be the basis of Dr. Rivero's constructive discharge claim; and (v) Dr. Rivero stated a claim of retaliation under the Rehabilitation Act, but the statute of limitations bars it and he cannot make a prima facie case. Accordingly, the Court grants UNM's MSJ. This grant of summary judgment renders Rivero's MSJ and the Psychological MIL moot. The Court denies the Complaints MIL, because the pre-2006 complaints are relevant. Finally, the Court concludes that its ties with the School of Law and its acquaintances with members of the Board of Regents do not support an appearance of impropriety and that it does not have an interest that could be substantially affected by the proceeding's outcome. The Court, thus, denies the Recusal Motion.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers for UNM's MSJ. See UNM's MSJ ¶¶ 1-51, at 3-11; Response in Opposition to Defendant's Motion and Memorandum for Summary Judgment ¶¶ 1-51, at 1-8, filed March 8, 2018 (Doc. 191)(“Rivero's Response”); id. ¶¶ 1-44, at 8-18;[3] Defendant University of New Mexico Board of Regents' Reply in Support of Its Motion for Summary Judgment ¶¶1-51, at 1-10, filed February 2, 2018[4] (Doc. 169)(“UNM's Reply”); id. at ¶¶ 1-44, at 10-13. The Court also takes additional undisputed facts helpful to determining the issues here from the summary judgment motion papers for Rivero's MSJ.[5] See Rivero's MSJ ¶¶ 1-47, at 2-11; University of New Mexico Board of Regents' Response Brief in Opposition to Certain of Defendant Board of Regents of the University of New Mexico's Affirmative Defenses ¶¶ 1-47, at 1-7, filed January 12, 2018 (Doc. 159)(“UNM's Response”); id. ¶¶ 1-12, at 7-9;[6] Reply in Support of Plaintiff's Motion for Summary Judgment and Memorandum of Law as to Certain of Defendant Board of Regents of the University of New Mexico's Affirmative Defenses ¶¶ 1-47, at 2-7, filed February 14, 2018 (Doc. 179)(“Rivero's Reply”); id. ¶¶ 1-12, at 7-9.

         1. Background on Dr. Rivero's Employment with UNM.

         Dr. Rivero began his employment with UNM in 1992 as an orthopedic surgeon. See UNM's MSJ ¶ 1, at 3 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 20:8-12 (taken September 15, 2017), filed December 8, 2017 (Doc. 143-1)(“Rivero Depo. 143”));[7] Dr. Rivero's Response ¶ 1, at 1 (admitting this fact). UNM promoted Dr. Rivero to associate professor in 1998 and to full professor in 2005. See Rivero's Response ¶ 1, at 1 (asserting this fact)(citing Memorandum from Dr. Jane E. Henney to Dr. Dennis Rivero at 2 (dated June 5, 1998), filed March 8, 2018 at 2 (Doc. 191-1); Letter from Dr. R. Philip Eaton to Dr. Dennis Rivero at 1 (dated May 27, 2005), filed March 8, 2018 (Doc. 191-1)).[8] Dr. Rivero left UNM in January, 2007, to practice in Tulsa, Oklahoma, “voluntarily, ostensibly so that he could water ski more often, ” among other reasons. UNM's MSJ ¶ 23, at 6 (asserting this fact)(citing Rivero Depo. 143 at 147:15-25; id. at 148:15-149:6).[9] When Dr. Rivero left UNM in 2007, he was serving as the Division Chief of Adult Reconstruction in the Department of Orthopaedics and Rehabilitation. See Rivero's Response ¶ 1, at 8 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 155:8-20 (taken September 15, 2017), filed March 8, 2018 (Doc. 191- 2)(“Rivero Depo. 191”)).[10] While practicing in Oklahoma, however, Dr. Rivero “maintained a 0.05 full time equivalent (FTE) position at UNM, where he would return one day per month to perform certain surgeries.” UNM's MSJ ¶ 24, at 6 (asserting this fact)(citing First Amended Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973 ¶ 14, at 3, filed September 9, 2016 (Doc. 28)(“FAC”)).[11] Dr. Rivero “performed [these surgeries] on people with whom [he] had a prior relationship, or in assistance of other UNM physicians, who handled the pre-operative and post-operative procedures.” UNM's MSJ ¶ 25, at 6 (asserting this fact)(citing Rivero Depo. 143 at 175:25-176:20).[12]

         During Dr. Rivero's twenty-two-year employment with UNM, UNM “regularly reappointed” Dr. Rivero -- even during his full-time employment in Oklahoma -- with each reappointment “expressly stat[ing] that Dr. Rivero ‘does not have . . . a physical or mental condition that could interfere with his ability to perform the essential functions of his position.'” Rivero's Response ¶ 2, at 9 (emphasis in Rivero's Response)(quoting Letter from Dr. Robert C. Schenck, Jr. to Dr. Robert Bailey at 1 (dated May 17, 2010), filed March 8, 2018 (Doc. 191-14); Letter from Dr. Robert C. Schenck, Jr. to Dr. Robert Bailey at 2 (dated May 28, 2008), filed March 8, 2018 (Doc. 191-14); Memorandum from Dr. Moheb Moneim to Dr. Robert Bailey at 3 (dated July 11, 2006), filed March 8, 2018 (Doc. 191-14); Memorandum from Dr. Moheb Moneim to Dr. Mark Hauswald at 4 (dated September 27, 2004), filed March 8, 2018 (Doc. 191-14); and citing Letter to Muskogee Reg'l Med. Ctr. from Alison Weber at 15 (dated June 16, 2008), filed March 8, 2018 (Doc. 191-5); Board of Regents of the University of New Mexico's Supplemental Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, No. 4 Answer at 2, filed March 8, 2018 (Doc. 191-13); Letter from Dr. Robert Bailey to Dr. Dennis Rivero at 5 (dated July 26, 2012), filed March 8, 2018 (Doc. 191-14); Letter from Rita Sorrels at 1 (dated August 6, 2010), filed March 8, 2018 (Doc. 191-15)). See UNM's Reply ¶ 2, at 10 (not disputing this fact). Further, “[d]uring his time at UNM, Dr. Rivero was never disciplined or subject to any adverse employment action.” Rivero's MSJ ¶ 3, at 2 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 21:8-15 (taken September 15, 2017), filed December 8, 2017 (Doc. 144-1)(“Rivero Depo. 144”); id. at 154:7-155:7; id. at 312:2-8). See UNM's Response ¶ 3, at 2 (not disputing this fact). This record means that “Dr. Rivero was never suspended, sanctioned, placed on probation, or otherwise disciplined during his entire tenure, nor was he subject to any medical board complaints.” Rivero's Response ¶ 3, at 9 (asserting this fact)(citing Rivero Depo. 191 at 154:17-155:7; id. at 159:16-18; id. at 312:3-8; Board of Regents of the University of New Mexico's Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, Nos. 1 & 3 Answers at 2, filed March 8, 108 (Doc. 191-16)). See UNM's Reply ¶ 3, at 10 (not disputing this fact). Two residents who worked under Dr. Rivero did not feel that he “was unprofessional or a threat to anyone's safety in his role as a surgeon, and in fact, Dr. Rivero's meticulous nature was a benefit to the practice and the patients”; that Dr. Rivero's “colleagues respected him highly and did not want him to leave in 2006”; and “that it is was [sic] delightful to see how much his patients enjoyed him.” Rivero's Response ¶ 4, at 9 (asserting this fact)(citing Deposition of Dr. Deana Mercer at 8:1-7 (taken September 12, 2017), filed March 8, 2018 (Doc. 191-17)(“Mercer Depo.”); id. at 8:25-9:9; id. at 11:2-12:2; id. at 18:2-24; id. at 18:9-24; Deposition of Dr. Andrew James Paterson at 9:1-2 (taken October 18, 2017), filed March 8, 2018 (Doc. 191-18)(“Paterson Depo.”); id. at 10:8-16; id. at 11:17-23; id. at 14:10-15:6).[13] “Christine Long, L.P.N., a surgical tech who worked in the operating room with Dr. Rivero from 1992 to 2007, ” thought that Dr. Rivero “was always in control in his operating room” and demanded a professional environment, and that “his patients seemed to love him.” Rivero's Response ¶ 5, at 9-10 (asserting this fact)(citing Deposition of Christine Long at 6:20-7:5 (taken October 18, 2017), filed March 8, 2018 (Doc. 191-19)(“Long Depo.”); id. at 7:20-9:17; id. at 11:6-12:10; id. at 17:19-18:14; id. at 13:6-18; id. at 24:13-24:33).[14] Nurse Araceli Martinez, who worked with Dr. Rivero in the General Orthopedic and Faculty Orthopedic clinics from 1992 to 2007, held the view that “Dr. Rivero's patients ‘loved him, '” and stated that she “never received any complaints about Dr. Rivero nor ever saw him act unprofessionally.” Rivero's Response ¶ 6, at 10 (quoting Deposition of Araceli Martinez at 13:13 (taken October 17, 2017), filed March 8, 2018 (Doc. 191-3)(“Martinez Depo.”); and then citing id. at 11:2-12:24; id. at 13:7-21; id. at 14:10-25; id. at 31:20-25; id. at 16:7-21; id. at 17:16-18:1; id. at 20:3-5; id. at 23:1-17; id. at 20:22-24).[15]

         2. Dr. Rivero's Unprofessional Behavior.

         Early in his career at UNM, in September 1993, Dr. Rivero “unleashed a 10 minute stream of obscenities at a resident.” UNM's MSJ ¶ 2, at 3 (asserting this fact)(citing Letter from Dr. Kambiz Behzadi to Dr. Moheb Moneim at 20-21 (dated September 18, 1993), filed December 8, 2017 (Doc. 143-1)).[16] Dr. Rivero construed “this incident as mere locker room talk.” UNM's MSJ ¶ 3, at 4 (asserting this fact)(citing Rivero Depo. 143 at 35:10-18).[17] In 1994, Dr. Rivero “refused to allow UNM to culture him to determine the source of an outbreak of methicillin resistant staphylococcus areus (‘MRSA').” UNM's MSJ ¶ 4, at 4 (asserting this fact)(citing Memorandum from Kim Oldewage to Dr. Moheb Moneim at 19 (dated October 7, 1994), filed December 8, 2007 (Doc. 143-1)).[18] Dr. Rivero knew “of the severity of the MRSA problem in hospitals.” UNM's MSJ ¶ 5, at 4 (asserting this fact)(citing Rivero Depo. 143 at 28:3-6).[19] Later, Dr. Rivero requested “that a nurse whom he was dating be assigned to his operating room.” UNM's MSJ ¶ 8, at 4 (asserting this fact)(citing Rivero Depo. 143 at 50:9-20).[20] In 2003, Dr. Rivero “had a disagreement [with Dr. David Pitcher, Assistant Dean for Clinical Affairs, ] about procedures governing transfer of a patient over the Physician Access Line Service (PALS), ”[21] and “Dr. Pitcher escalated the incident in a letter to Dr. Rivero's department chair at the time, Dr. Moheb Moneim.” Rivero's Response ¶ 7, at 10 (asserting this fact)(citing Rivero Depo. 191 at 44:11-49:16; Deposition of Dr. David E. Pitcher at 6:9-13 (taken September 11, 2017), filed March 8, 2018 (Doc. 191-20)(“Pitcher Depo.”); id. at 19:9-21:25; Email from Dr. David Pitcher to Dr. Moheb Moneim at 12 (dated January 1, 2003), filed March 8, 2018 (Doc. 191-5)(“Pitcher Complaint”)).[22] “Dr. Rivero defended himself by submitting his own written rebuttal, [which asserts] that Dr. Pitcher had falsely accused Dr. Rivero of wrongdoing.” Rivero's Response ¶ 9, at 11 (asserting this fact)(citing Letter from Dr. Dennis Rivero to Dr. Moheb Moneim at 10-13 (dated January 17, 2003), filed March 8, 2018 (Doc. 191-20)).[23] As a result of a memorandum that John Trotter, PhD, Vice Dean of the UNM School of Medicine, issued, Dr. Pitcher “recused himself from any dealings with Dr. Rivero.” Rivero's Response ¶ 11, at 11 (asserting this fact)(citing Memorandum from John Trotter, PhD to Dr. Dennis Rivero, Dr. David Pitcher, Dr. Moheb Moneim, Dr. Robert Bailey, and Dr. Susan Scott at 13 (dated February 11, 2004), filed March 8, 2018 (Doc. 191-5)(“Trotter Memorandum”); Pitcher Depo. at 38:2-17).[24] Further, the Trotter Memorandum states that the “event” between Dr. Rivero and Dr. Pitcher is “not to be considered in any evaluations of Dr. Rivero's professional standing or performance.” Trotter Memorandum at 13. See Rivero's Response ¶ 11, at 11 (asserting this fact).[25] Dr. Pitcher continued to send emails concerning Dr. Rivero to their colleagues -- discussing a “concerning incident” between the two, Email from Dr. David Pitcher to Dr. Robert Bailey and Dr. Dr. Mark Hauswald at 1 (dated May 6, 2005), filed March 8, 2018 (Doc. 191-21)(“May 6 Pitcher Email”), and that Dr. Pitcher is “gravely concerned about Dr. Rivero, ” Email from Dr. David Pitcher to Dr. Robert Bailey and Dr. Mark Hauswald at 3 (dated August 10, 2005), filed March 8, 2018 (Doc. 191-21)(“Aug. 10 Pitcher Email”) --“without Dr. Rivero's knowledge and despite [that] Dr. Pitcher . . . knew Dr. Rivero only ‘in passing.'” Rivero's Response ¶ 12, at 11-12 (asserting this fact)(quoting Pitcher Depo. at 19:11; and then citing Affidavit of Dennis P. Rivero, M.D. ¶ 3, at 1 (executed January 12, 2018), filed March 8, 2018 (Doc. 191-26)(“First Rivero Aff.”)).[26]

         In mid-2006, UNM Hospital patient advocate Willie Barela emailed Dr. Rivero to “pass[] along a complaint . . . made by a patient asserting that Plaintiff bullied her because she did not speak English. The patient claimed Plaintiff . . . asked her if she was ashamed she did not know English.” UNM's MSJ ¶ 9, at 4 (asserting this fact)(citing Email from Willie Barela to Dr. Dennis Rivero at 23 (dated June 30, 2006), filed December 8, 2017 (Doc. 143-1)(“June 30 Barela Email”).[27] In response to the complaint, Dr. Rivero “sa[id] that Mr. Barela and UNM encouraged ‘groundless['] complaints.” UNM's MSJ ¶ 10, at 4 (asserting this fact)(quoting Email from Dr. Dennis Rivero to Willie Barela at 22 (dated June 30, 2006), filed December 8, 2017 (Doc. 143-1)(“Rivero Email”)).[28] Dr. Rivero “also informed Mr. Barela that he would no longer see patients at the General Ortho clinic, a clinic that is used by many indigent patients.” UNM's MSJ ¶ 11, at 4 (asserting this fact)(citing Rivero Email at 22).[29] “Moreover, Plaintiff informed Mr. Barela that he would not speak Spanish to patients, despite the fact that he was fluent in Spanish, and he implied to Mr. Barela that Spanish speaking general ortho clinic patients caused him the most difficulty.” UNM's MSJ ¶ 12, at 5 (asserting this fact)(citing Rivero Email at 22).[30] On the same day, Dr. Rivero sent another email, “stating that he would never operate on a particular patient because of a simple misunderstanding regarding payment.” UNM's MSJ ¶ 22, at 6 (asserting this fact)(citing Email from Dr. Dennis Rivero to Willie Barela and Dr. Moheb Moneim at 26 (dated June 30, 2006), filed December 8, 2017 (Doc. 143-1)(“Payment Email”); Rivero Depo. 143 at 140:22-141:1).[31]

         Later in 2006, Barela sent Dr. Rivero another complaint which he had received from one of Dr. Rivero's patients, who alleged that Dr. Rivero “compared [the] patient to a monkey, and informed the patient ‘the only thing [Dr. Rivero] would prescribe is Church.'” UNM's MSJ ¶ 14, at 5 (asserting this fact)(quoting Email from Willie Barela to Dr. Dennis Rivero at 25 (dated August 3, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 3 Barela Email”).[32] The patient who made this complaint was a former intravenous (“IV”) drug user, and Dr. Rivero “describ[ed] a study regarding monkeys and drugs to the patient in question, and attempted to apply it to the patient's situation.” UNM's MSJ ¶¶ 15-16, at 5 (citing Aug. 3 Barela Email at 25; Rivero Depo. 143 at 120:22-121:6).[33] In the Aug. 3 Barela Email, Barela repeatedly uses the term “claims” when describing the patient's allegations against Dr. Rivero. UNM's MSJ ¶ 18, at 5 (asserting this fact)(citing Aug. 3 Barela Email at 25).[34] Dr. Rivero emailed Barela in response, “accusing him of ‘attacking physicians' based on allegations with ‘very little truth' to them.” UNM's MSJ ¶ 17, at 5 (asserting this fact)(quoting Email from Dr. Dennis Rivero to Willie Barela at 25 (dated August 4, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 4 Rivero Email”)).[35] Barela responded to Dr. Rivero's email, “stating that he viewed patient claims objectively, and stating that he respected Plaintiff very much.” UNM's MSJ ¶ 19, at 6 (asserting this fact)(citing Email from Willie Barela to Dr. Dennis Rivero at 24 (dated August 7, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 7 Barela Email”)).[36] Dr. Rivero responded to Barela's second email with his own email, in which he wrote:

Your manner and approach to this, in my opinion is reprehensible and thoroughly disrespectful of Physicians, and I am amazed that you have no idea how much I dislike you and your methods, which effectively try to lower our status to servants who are expected to get on our knees before patients. You may think you are doing what your job requires, and so be it, but it is WRONG, WRONG and WRONG, and I intend to bring it up with your boss.
. . . .
WHy [sic] is that this year in the past few months I have had four of these, (one where I did not even set eyes on the patient) when in the past fourteen years I never heard from your predecessor?

         Email from Dr. Dennis Rivero to Willie Barela at 24 (dated August 7, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 7 Rivero Email”). See UNM's MSJ ¶ 20, at 6 (asserting this fact)(citing Aug. 7 Rivero Email at 24).[37] Dr. Rivero “does not regret sending the [Aug. 7 Rivero Email].” UNM's MSJ ¶ 21, at 6 (asserting this fact)(citing Rivero Depo. 143 at 106:17-107:25).[38] “Moreover, [one] of Dr. Rivero's former patients filed a claim with the U.S. Office of Civil Rights in the federal Health and Human Services Department, alleging that Dr. Rivero made derogatory statements about Mexicans.” UNM's MSJ ¶ 13, at 5 (asserting this fact)(citing Letter from Ralph Rouse to Steven McKerman at 1-2 (stamped March 1, 2007), filed December 8, 2017 (Doc. 143-2)(“OCR Letter”)).[39]

         3. Dr. Rivero's Request to Return to Full Time Employment with UNM.

         After several months of working at UNM at 0.05 FTE, Dr. Rivero “contacted the chair of UNM's Department of Orthopedics, Dr. Robert Schenck, asking to return full time” or to 0.75 FTE. UNM's MSJ ¶ 26, at 7 (asserting this fact)(citing FAC ¶16, at 3). See Rivero's Response ¶ 26, at 5 (admitting this fact). “Dr. Rivero sought to increase his level of participation to .75 to 1.0 FTE, or completely full-time, as Defendant had promised.” Rivero's MSJ ¶ 5, at 3 (asserting this fact)(citing Rivero Depo. 144 at 152:19-24).[40] “In a letter to Dr. Schenck in support of his request, Plaintiff stated that he had ‘learned his lesson.'” UNM's MSJ ¶ 27, at 7 (asserting this fact)(quoting Letter from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 28 (dated June 24, 2007), filed December 8, 2017 (Doc. 143-1)(“Request Letter”)).[41] Dr. Rivero “noted that the lesson was that [it is important that] he . . . get along with people.” UNM's MSJ ¶ 28, at 7 (citing Rivero Depo. 143 at 163:5-9).[42] “Dr. Schenck asked Plaintiff to apologize to Mr. Barela.” UNM's MSJ ¶ 29, at 7 (asserting this fact)(citing Rivero Depo. 143 at 171:10-16).[43] Dr. Rivero “wr[o]te a letter of apology, but the letter included a[] . . . paragraph denying all inappropriate behavior.”[44] UNM's MSJ ¶ 30, at 7 (asserting this fact)(citing Letter from Dr. Dennis Rivero to Willie Barela at 29 (dated June 11, 2007), filed December 8, 2017 (Doc. 143-1)(“Apology Letter”)).[45] “Shortly after Plaintiff requested a return to full time employment, Dr. Robert Bailey sent an e-mail describing alleged [‘[i]ssues involving Dr. Rivero from ~2003-2006']”: (i) a complaint made against Dr. Rivero to the accreditation organization Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) “alleging unprofessional behavior”; (ii) “[a]pproximately 10 patient complaints alleging that Dr. Rivero made disparaging comments about a patient's inability to speak English, Dr. Rivero's focus on money and payment, his dismissing of patients because of concerns that he would not get paid, and his anger management issues”; (iii) a complaint to the United States Department of Health and Human Services' Office for Civil Rights “alleging discrimination against a patient because he did not speak English, ” which required “an extensive response”; (iv) “[c]omplaints from a Coalition that advocated for improved healthcare for indigent and other patients”; (v) “[a] complaint from an Indian Health Services physician in Chinle, AZ regarding a consult with Dr. Rivero”; (vi) “[a] complaint from a physician from the organization Healthcare for the Homeless regarding a PALS consult with Dr. Rivero”; (vii) “[a] complaint from the [operating room] director involving anger management issues”; (viii) “[a] complaint from a surgeon regarding anger management”; (ix) “[a] request from the Patient Assistance Coordinator that he not have to interact with Dr. Rivero, prompted by previous interactions with Dr. Rivero.” UNM's MSJ ¶ 32, at 7-8 (asserting this fact)(quoting and citing Email from Dr. Robert Baily to Dr. David Pitcher, Dr. Robert Katz, John Trotter, PhD, Dr. Paul Roth, and Steve McKernan at 1 (dated November 5, 2007), filed December 8, 2017 (Doc. 143-3)(“Complaints Email”)).[46] About seven months later, “JCAHO released a national Sentinel Event Alert noting that unprofessional behavior ‘undermine[s] a culture of safety,' and instituted a New Leadership Standard that addresses disruptive and unprofessional behavior.” UNM's MSJ ¶ 33, at 8 (quoting Sentinel Event Alert Issue 40: Behaviors That Undermine a Culture of Safety, Joint Commission at 1 (dated July 9, 2008), filed December 8, 2017 (Doc. 143-4)(“Sentinel Alert”)).[47] At the time, UNM School of Medicine had a “Statement of Professionalism, ” which states:

In the School of Medicine, there is a commitment to the attributes of professionalism, which include altruism, accountability, excellence, duty, honesty, integrity and respect. For clinical faculty engaged in patient care, there is a further responsibility to apply these attributes to their interactions with patients, patient families, and significant others such that patient health care needs and the privacy and confidentiality of patient information takes precedence over self-interest.

         “Statement of Professionalism, ” UNM School of Medicine (approved October 24, 2002), filed December 8, 2017 (Doc. 143-5). See UNM's MSJ ¶ 33, at 8 (asserting this fact)(citing the Statement of Professionalism).[48]

         While Dr. Rivero awaited UNM's decision on his request to return to full time status, he “continued to work full-time in Oklahoma in private practice.”[49] Rivero's MSJ ¶ 7, at 3 (asserting this fact)(citing Rivero Depo. 144 at 174:15-21). See UNM's Response ¶ 7, at 2 (not disputing this fact). Three years later, in 2010, Dr. Rivero “filed a Complaint with the Academic Freedom and Tenure Committee, claiming that Dr. David Pitcher had been spreading false rumors about him, and that this prevented him from returning to full time status.” UNM's MSJ ¶ 34, at 9 (asserting this fact)(citing Letter from Dr. Dennis Rivero to Dr. Victor Strasburger at 1 (dated October 5, 2010), filed December 8, 2017 (Doc. 143-6)). See Rivero's MSJ ¶ 8, at 3 (asserting this fact)(citing Rivero Depo. 144 at 186:2-6).[50] “The [Academic Freedom and Tenure Committee] found Plaintiff's Complaint to be without merit.” UNM's MSJ ¶ 35, at 9 (asserting this fact)(citing Rivero Depo. 143 at 206:14-207:14).[51]

         Then, “[o]n December 10, 2010, Dr. Robert Schenck -- Chairman of the Department of Orthopedic Surgery and Rehabilitation -- and Dr. Rivero met with one another to discuss possible terms by which Dr. Rivero would” increase his employment.[52] Rivero's MSJ ¶ 9, at 3 (asserting this fact)(citing Rivero Depo. 144 at 206:10-207:14; Deposition of Dr. Robert Cumming Schenck, Jr. at 11:13-24 (taken September 13, 2017), filed December 8, 2017 (Doc. 144-2)(“Schenck Depo. 144”); Note at 13 (dated December 10, 2010), filed December 8, 2017 (Doc. 144-1)). See UNM's Response ¶ 9, at 3 (admitting this fact). “The outcome of the meeting was memorialized by a handwritten note.” Rivero's Response ¶ 27, at 14 (asserting this fact)(citing Note at 13).[53] See UNM's Reply ¶¶ 27-28, at 12 (not disputing this fact). “At the meeting with Dr. Schenck, Plaintiff agreed to attend four counseling sessions, and if he attended the counseling sessions, he could gradually return to 0.75 FTE.” UNM's MSJ ¶ 37, at 9 (asserting this fact)(citing Rivero Depo. 143 at 206:14-207:14).[54] See Rivero's Response ¶ 28, at 15 (asserting this fact).[55] They also agreed that a term of Dr. Rivero's return be that “Dr. Rivero was not to be on call, ” because “being ‘on call' created too much stress for Dr. Rivero, which triggered his ‘lack of professionalism.'” Rivero's Response ¶ 29, at 15 (asserting this fact)(first quoting Deposition of Dr. Robert Cumming Schenck, Jr. at 79:19 (taken September 13, 2017), filed March 8, 2018 (Doc. 191-4)(“Schenck Depo. 191”); then quoting id. at 79:25-80:1; and then citing Schenck Depo. 191 at 41:8-18; id. at 78:15-80:7). See UNM's Reply ¶ 29, at 12 (not disputing this fact).[56] “Dr. Strasburger suggested that Plaintiff meet with Dr. Jeff Katzman, a psychiatrist, for his counseling.” UNM's MSJ ¶ 38, at 9 (asserting this fact)(citing Email from Dr. Victor Strasburger to Dr. Dennis Rivero at 32 (dated December 11, 2010), filed December 8, 2017 (Doc. 143-1)(“Strasburger Email”)).[57] Dr. Rivero emailed “Dr. Katzmann [sic], stating that he would like to set up counseling sessions, ” UNM's MSJ ¶ 39, at 9 (asserting this fact)(citing Email from Dr. Dennis Rivero to Dr. Jeff Katzman at 32 (dated December 21, 2010), filed December 8, 2017 (Doc. 143-1)(“Counseling Email”)), “contingent upon [Dr. Rivero's] finalizing an agreement to return, ” Rivero's Response ¶ 39, at 7.[58] Dr. Rivero, however, “probably would not have seen [Dr. Katzman] under any circumstances.” UNM's MSJ ¶ 40, at 9 (asserting this fact)(citing Rivero Depo. 143 at 223:15-23).[59]

         4. The Addendum.

         “In early 2011, ” Dr. Rivero received an addendum to his employment contract. Rivero's Response ¶ 30, at 15 (asserting this fact)(citing Addendum No. 1 to Contract UNM School of Medicine By and Between The University of New Mexico and Dennis P. Rivero, M.D. (dated February 15, 2011), filed November 9, 2016 (Doc. 28-1)(“Addendum”); Rivero Depo. 191 at 225:6-227:11). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). The Addendum “required Dr. Rivero to submit to . . . ‘a four-part psychiatric evaluation by a board-certified psychiatrist acceptable to the Chair of the Department of Orthopedics and Rehabilitation, '” the cost of which was to be borne by Dr. Rivero, and the time spent in such “examinations would be considered ‘administrative leave.'”[60] Rivero's Response ¶ 31, at 15-16 (asserting this fact)(quoting Addendum ¶ 2 and (a), at 2; and citing Rivero's Request for Admission No. 17 (undated), filed March 8, 2018 (Doc. 191-23)). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). The Addendum also provides that “Dr. Schenck and the Associate Dean of Academic Affairs would have access to” progress reports following each part of the evaluation which describe Dr. Rivero's continued participation in the evaluation, the psychiatrist's recommendations -- such recommendations the Addendum deems mandatory -- and Dr. Rivero's compliance with these recommendations.[61] Rivero's Response ¶ 31, at 16 (asserting this fact)(citing Addendum ¶ 2(c), at 2). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). The reports and recommendations that the psychiatrist would provide “were to be ‘confidential, '” although a copy may be “placed in Dr. Rivero's medical staff file.”[62] Rivero's Response ¶ 31, at 16 (asserting this fact)(quoting Addendum ¶ 2(d), at 2). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). “Discretionary determination of [Dr. Rivero's] non-compliance [with the Addendum] by UNM would lead to termination, but it would be deemed a resignation.” Rivero's Response ¶ 31, at 16 (asserting this fact)(citing Addendum ¶ 3, at 3). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). “The Addendum contains no term as to Dr. Rivero's ‘on call' status, ” and “Dr. Rivero would be forced to waive all rights to appeal internally or to legal recourse for any abuse or discrimination or wrongful act by UNM regarding the records stemming from the medical examination, including constitutional rights.” Rivero's Response ¶ 31, at 16 (asserting this fact)(emphasis in Rivero's Response)(citing Addendum ¶ 7, at 5). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact). “The conditions of the Addendum were required to be met for Dr. Rivero to increase his level of employment with UNM.” Rivero's Response ¶ 32, at 16 (asserting this fact)(citing Addendum ¶ 5, at 4; Rivero's Request for Admission No. 17). See UNM's Reply ¶¶ 30-32, at 12 (admitting this fact).[63]

         “Dr. Rivero was shocked by the requirements of the Addendum and wanted to find out the basis for them, especially the requirement of a medical psychiatric exam and why he would have to waive all rights to appeal given that he had never been disciplined.” Rivero's Response ¶ 34, at 16-17 (asserting this fact)(citing Rivero Depo. 191 at 298:18-299:16; id. at 302:17-23).[64] “Dr. Schenck acknowledged that [he believed] the Addendum was ‘onerous' and ‘draconian.'” Rivero's Response ¶ 35, at 17 (quoting Schenck Depo. 191 at 179:5, 14).[65] Dr. Rivero “sent an e-mail to Dr. Schenck, asking for an extension of time to sign the Addendum, and noting that he agreed to counseling, but complaining about the language regarding the psychological evaluation.” UNM's MSJ ¶ 42, at 10 (asserting this fact)(citing Email from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 1 (dated March 9, 2011), filed December 8, 2017 (Doc. 143-7)(“Extension Email”)).[66] Thereafter, “Dr. Rivero sought access to his ‘Credentialing File' to investigate any support whatsoever for the requirement of a psychiatric investigation, ” and so, “on March 24, 2011, . . . to view his Credentialing File before the deadline to accept of April 10, 2011, Dr. Rivero visited the Office of Clinical Affairs at UNMHSC with his attorney.” Rivero's Response ¶ 36, at 17 (asserting this fact)(citing Rivero Depo. 191 at 244:25-245:21; id. at 247:1- 22; id. at 250:18-254:13).[67] “Records custodian Virginia Kelley had begun to take Dr. Rivero to a room to review his file when, in an urgent and unexpected interruption, Dr. Bailey called from his clinical rounds to stop Ms. Kelley from allowing Dr. Rivero to access his own file.” Rivero's Response ¶ 37, at 17 (asserting this fact)(citing Rivero Depo. 191 at 251:14-252:10).[68]

Dr. Rivero calmly discussed this issue, and to preserve the file's contents while resolving permission to access it, Dr. Bailey and he reached a compromise in which copies of the alleged contents of the file were made by Ms. Kelley and placed in a manila envelope and sealed for safe keeping.

         Rivero's Response ¶ 37, at 17 (asserting this fact)(citing Rivero Depo. 191 at 252:17-253:17; Board of Regents of the University of New Mexico's Second Supplemental Responses and Objections to Plaintiff Dennis Rivero's Second Set of Requests for Production of Documents, and Second Requests for Admission at 1-2 (undated), filed March 8, 2018 (Doc. 191-27)).[69] “Immediately thereafter Dr. Bailey informed Dr. Schenck of Dr. Rivero's visit to the office of clinical affairs, asking, ‘Do we really want to do this?' in reference to Dr. Rivero's potential increase in FTE.” Rivero's Response ¶ 38, at 17 (asserting this fact)(citing Email from Dr. Robert Bailey to Scot Sauder and Dr. Robert Schenck, Jr. at 3 (dated March 24, 2011), filed March 8, 2018 (Doc. 191-5)(“Bailey Hesitation Email”); Schenck Depo. 191 at 142:7-144:7).[70]“Dr. Schenck . . . admitt[ed] that there was nothing wrong with Dr. Rivero seeking to review his file.”[71] Rivero's Response ¶ 39, at 17 (asserting this fact)(citing Schenck Depo. 191 at 145:9-146:11). See UNM's Reply ¶ 39, at 17 (not disputing this fact).

         Then, on April 4, 2011, in response to Dr. Schenck's suggestion that Dr. Rivero accept that he has been unprofessional, Dr. Rivero responded: “I am sorry you feel that way.” Email from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 33 (dated April 4, 2011), filed December 8, 2017 (Doc. 143-1)(“Professionalism Email”)). See UNM's MSJ ¶ 43, at 10 (asserting this fact)(citing Professionalism Email); Email from Dr. Robert Schenck, Jr. to Dr. Dennis Rivero at 33 (dated April 4, 2011), filed December 8, 2017 (Doc. 143-1)).[72] “The next day, Dr. Schenck withdrew the [A]ddendum.” UNM's MSJ ¶ 44, at 10 (asserting this fact)(citing FAC ¶ 40, at 8). See Rivero's Response ¶ 44, at 10 (admitting this fact);[73] Rivero's MSJ ¶ 18, at 5 (asserting this fact)(citing Schenck Depo. 144 at 142:7-144:7; Email from Dr. Robert Schenck, Jr. to Dr. Dennis Rivero, Ira Bolnick, John Trotter, PhD, Mary Jacintha, and Dr. Paul Echols at 1 (dated April 5, 2011), filed December 8, 2017 (Doc. 144-4)(“Withdrawal Email”)).[74]

         5. Dr. Rivero's Resignation.

         “In the subsequent months, ” Dr. Rivero continued to try to access his credentialing file, but was unable to get it. Rivero's Response ¶ 40, at 18 (asserting this fact)(citing Bailey Hesitation Email at 3; Email from Dr. Robert Bailey to Scot Sauder and Dr. Robert Schenck, Jr. at 4 (dated April 4, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Dennis Rivero to Dr. Robert Bailey at 4-5 (dated April 3, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Robert Bailey to Dr. Dennis Rivero at 5 (dated March 24, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Robert Bailey to Elizabeth Camp, Scot Sauder, and Alison Webster at 6 (dated April 11, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Robert Bailey to Scot Sauder and Dr. Robert Schenck, Jr. at 7 (dated April 15, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Dennis Rivero to Alison Webster at 10 (dated April 15, 2011), filed March 8, 2018 (Doc. 191-5)).[75] “As a result, Dr. Rivero . . .file[d] a Verified Petition for Alternative Writ of Mandamus with the State District Court to obtain access” to the credentialing file. Rivero's Response ¶ 41, at 18 (asserting this fact)(citing Rivero v. Board of Regents of the Univ. of N.M., D-202-CV-2011-08104, Verified Petition for Alternative Writ of Mandamus at 1, filed in state court on August 11, 2011, filed in federal court on December 8, 2017 (Doc. 144-6)).[76] Also, “[o]n January 20, 2012, Plaintiff filed an administrative complaint with the [Equal Employment Opportunity Commission (‘EEOC')], claiming that the psychological evaluation requirement was not job related and consistent with business necessity.” UNM's MSJ ¶ 45, at 10 (asserting this fact)(citing EEOC Charge of Discrimination Charge No. 543-2012-00600 at 1 (dated January 20, 2012), filed December 8, 2017 (Doc. 143-8)). See Rivero's Response ¶ 45, at 7 (admitting this fact). During this time, Dr. Rivero “continued to maintain his University Hospital privileges[, ] renewed[] with statements from UNM noting that plaintiff was not disabled and that he did not require accommodation.” UNM's MSJ ¶ 47, at 10 (asserting this fact)(citing Letter from Dr. Robert Schenck, Jr. to Dr. Robert Bailey at 1 (dated May 2, 2012), filed December 8, 2017 (Doc. 143-9)). See Rivero's Response ¶ 47, at 7-8 (admitting this fact).[77] In 2013, “[a]fter two years of litigation, and three evidentiary hearings, the State District Court found that UNM had unlawfully withheld documents from Dr. Rivero and ordered production of all documents relating to Dr. Rivero.” Rivero's Response ¶ 42, at 18 (asserting this fact)(citing Rivero v. Board of Regents of the Univ. of N.M., D-202-CV-2011-08104, Order on Petition for Writ of Mandamus ¶ 5, at 5, filed in state court on August 12, 2013, filed in federal court on December 8, 2017 (Doc. 144-7)(“Order on Petition”)).[78] “Upon production of such documents, and filing of affidavits by Dr. Bailey and Dr. John Trotter, ” Dr. Rivero realized that the only document which mentions that he may need a psychiatric evaluation is the Addendum, and Dr. Rivero felt that the disclosed documents did not reveal a reason for UNM's psychiatric evaluation requirement. Rivero's Response ¶ 43, at 18 (asserting this fact)(citing Rivero Depo. 191 at 250:3-10; Affidavit of John Trotter, PhD for Respondent Board of Regents of the University of New Mexico d/b/a The University of New Mexico Health Sciences Center (executed January 15, 2014), filed December 8, 2017 (Doc. 144-8)(“Trotter Aff.”); Affidavit of Respondent Robert A. Bailey, M.D. (executed January 24, 2014), filed December 8, 2017 (Doc. 144-9)(“Bailey Aff.”)).[79] See UNM's Reply ¶ 43, at 13 (not disputing this fact).

         “Plaintiff continued to work at 0.05 FTE until May 21, 2014, when he . . . resigned.” UNM's MSJ ¶ 46, at 10 (asserting this fact)(citing Rivero Depo. 143 at 268:20-22; id. at 272:5-11).[80] Dr. Rivero felt that “[n]othing justified the onerous and draconian [A]ddendum, ” and that Dr. Schenck betrayed his trust, “defamed him publicly throughout the mandamus case, ” and “turned on him so suddenly when he sought his credentialing file.” Rivero's Response ¶ 44, at 18 (asserting this fact)(citing Rivero Depo. 191 at 271:1-274:4; id. at 274:10-275:4).[81] See UNM's MSJ ¶ 48, at 10 (citing Memorandum from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 1-2 (dated May 21, 2014), filed December 8, 2017 (Doc. 143-10)(“Resignation Letter”))(stating that Dr. Rivero “accused Dr. Schenck of betrayal and other personal slights”).[82] Dr. Rivero's Resignation Letter does not mention any harassment that “he had allegedly been subjected to”; along with describing how he felt betrayed, defamed, and turned on by Dr. Schenck, he asserts how “the affidavits submitted in a separate legal action Plaintiff brought against Defendant the prior January certifying production of all documents constituted ‘confirmation' of the alleged impropriety of the psychological evaluation requirement.” UNM's MSJ ¶ 50, at 11 (asserting this fact)(citing Resignation Letter).[83] With the exception of withholding documents from Dr. Rivero, “[n]o UNM employee or official treated Plaintiff inappropriately prior to his resignation, and he was permitted to continue performing surgeries one day a month.” UNM's MSJ ¶ 49, at 11 (asserting this fact)(citing Rivero Depo. 143 at 268:20-269:7).[84]

         “On April 19, 2016, Plaintiff brought his original Complaint in the instant case.” UNM's MSJ ¶ 51, at 11 (asserting this fact)(citing Complaint to Recover Damages for Violations of the Americans with Disabilities Act, filed April 19, 2016 (Doc. 1)(“Complaint”)). See Rivero's Response ¶ 51, at 8 (admitting this fact).

         PROCEDURAL BACKGROUND

         Dr. Rivero received notices of the right to sue from the EEOC on January 29, 2016, and April 14, 2016. See Complaint ¶¶ 7-8, at 2. Dr. Rivero then filed his Complaint on April 19, 2016, in the United States District Court for the District of New Mexico, invoking federal-question jurisdiction under 28 U.S.C. § 1331 by alleging two causes of action against UNM for violations of the American with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”). See Complaint ¶ 5, at 2.[85] With leave of Magistrate Judge Lynch, [86] Dr. Rivero filed his FAC, this time alleging that UNM violated the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-794a and 790 et seq. (“Rehabilitation Act”). See FAC ¶ 1, at 1. The FAC brings only one claim against UNM: Dr. Rivero asserts that UNM violated the Rehabilitation Act, 29 U.S.C. § 794(a), by rendering his working conditions intolerable and constructively discharging him, because UNM required Dr. Rivero to submit to medical examinations before authorizing an increase in his hours as a result of its belief that he had some mental impairment -- despite there allegedly not being any business purpose for the medical examinations and no documentation showing that Dr. Rivero suffered from any mental impairment. See FAC ¶¶ 46-56, at 9-11.

         1. The MTD Order.

         On December 22, 2016, Magistrate Judge Lynch denied the Defendant University of New Mexico Board of Regents' Motion to Dismiss Plaintiff's First Amended Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973, filed October 7, 2016 (Doc. 33)(“MTD”). Magistrate Judge Lynch notes that, “[t]hough inartfully pled, Dr. Rivero brings two separate claims within ‘Count One':” (i) UNM's attempt “to require psychiatric testing without a legitimate purpose; and” (ii) constructive discharge. MTD Order at 6. UNM brought its MTD under rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting “that both parts of Dr. Rivero's claim are barred by the applicable statute of limitations.” MTD Order at 6. See MTD at 1, 5.

         Magistrate Judge Lynch observes that “[t]he Rehabilitation Act does not identify a statute of limitations. In the Tenth Circuit, Rehabilitation Act claims are treated similarly to claims under 42 U.S.C. § 1983, and the state personal injury statute of limitations is read-in to the statute.” MTD Order at 6 (citing Levy v. Kan. Dep't of Social & Rehab. Servs., 789 F.3d 1164, 1172-74 (10th Cir. 2005); McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011)). Magistrate Judge Lynch determined that, as to the psychiatric testing claim, both parties' assertions when the claim accrued are wrong. See MTD Order at 7. Magistrate Judge Lynch writes:

Here, UNM did require Dr. Rivero to undergo medical testing -- psychiatric testing, to be precise -- as a condition of increased employment. Additionally, Dr. Rivero did not find out that UNM had no business necessity for these requirements until affidavits were filed by Drs. Trotter and Baily in the state case which averred that all of the documents had been produced, and Dr. Rivero was able to determine that UNM had no evidence or documentary support to substantiate its requirement of psychiatric testing. The affidavits were filed, respectively, on January 15 and January 24, 2014. Given that a plaintiff must prove that his employer had no business necessity for the required medical testing, Dr. Rivero's claim under § 794 for the psychiatric testing was not complete and cognizable until January 2014. Given that the Rehabilitation Act prohibits an employer from requiring medical testing only when the employer lacks a business necessity for that testing, 42 U.S.C. § 12112(d)(4), the lack of business necessity is an element of the claim. Dr. Rivero only had access to information sufficient to establish this element beginning in January 2014. The statute of limitations has not run.

         MTD Order at 8 (citations omitted)(citing FAC at 10-11). As to the constructive discharge claim, Magistrate Judge Lynch notes that “the employee's resignation based on the discriminatory conduct by the employer is an essential -- indeed, the defining -- element of the constructive discharge.” MTD Order at 9 (citing Green v. Brennan, 136 S.Ct. 1769, 1777 (2016)). Accordingly, Magistrate Judge Lynch concludes that, for the constructive discharge claim, “[t]he statute of limitations did not begin running until Dr. Rivero in fact terminated his employment in May 2014.” MTD Order at 9. Magistrate Judge Lynch thus denies UNM's MTD. See MTD Order at 9.[87]

         2. UNM's MSJ.

         UNM first moved for summary judgment on December 5, 2017. See Defendant University of New Mexico Board of Regents' Motion and Memorandum for Summary Judgment at 1. It quickly filed an amended motion on December 8, 2017, to add a disclosure pursuant to D.N.M.LR-Civ. 7.1. See UNM's MSJ at 1 n.1. In UNM's MSJ, UNM notes that, while Dr. Rivero asserts only one claim in the FAC, he actually alleges two claims: (i) improper medical inquiry; and (ii) constructive discharge. See UNM's MSJ at 12.

         UNM first argues that it is entitled to summary judgment regarding the medical examination, because “the claim is barred by the statute of limitations.” UNM's MSJ at 12. UNM notes that, unlike for a claim under the ADA, pursuing a Rehabilitation Act claim against a university does not require filing an administrative claim with the EEOC before bringing suit and, thus, the statute of limitation “begins to run when the cause of action accrues.” UNM's MSJ at 13. UNM notes that caselaw in the United States Court of Appeals for the Tenth Circuit establishes that Rehabilitation Act claims are analogous to those under 42 U.S.C. § 1983, providing for a three-year limitations period. See UNM's MSJ at 13. According to UNM, Dr. Rivero, therefore, “cannot prevail on any claim on any act that accrued prior to April 19, 2013, ” three years before his Complaint's filing. UNM's MSJ at 13. UNM asserts that a Rehabilitation Act claim “accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action” -- so, according to UNM, Dr. Rivero's claim accrued in January, 2011, when he received the Addendum requiring psychiatric evaluations as a condition to return to full-time employment. UNM's MSJ at 14 (quoting Baker v. Bd. of Regents of the State of Kan., 991 F.2d 628, 632 (10th Cir. 1993)). UNM argues that, while this argument conflicts with Magistrate Judge Lynch's holding that Dr. Rivero's cause of action accrued in 2014, see MTD Order at 8, the undisputed facts make it clear that Dr. Rivero found out about the injury -- which is all that is needed for a “complete and present cause of action” in a civil rights claim -- no later than January 20, 2012, because he was aware of the medical examination requirement by then, UNM's MSJ at 15 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). UNM asserts that Dr. Rivero did not have to determine that the examination requirement was illegal for the cause of action to accrue; that accrual occurred when he knew of the requirement. See UNM's MSJ at 15-16. Further, UNM argues that, even if the cause of action did not accrue until Dr. Rivero determined that the examination was improper, the claim is still time-barred, because he filed a complaint with the EEOC on January 20, 2012, stating “that he was required to submit to a psychological evaluation, and that this evaluation was not job related or consistent with business necessity.” UNM's MSJ at 16.

         UNM also asserts that the psychiatric evaluation requirement “was job related and consistent with business necessity.” UNM's MSJ at 16. It states that employers may require a “fitness for duty examination” when they have legitimate, non-discriminatory evidence that would cause a reasonable person to doubt the employee's capacity to perform his or her job. UNM's MSJ at 17 (citing Adair v. City of Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016)). UNM asserts that courts have found psychological examinations “appropriate if the employee has demonstrated a deterioration in his or her ability to conduct himself in a professional manner.” UNM's MSJ at 17. After discussing a number of cases, UNM comes to the conclusion that “there is substantial precedent for psychological evaluations in cases where employees have demonstrated a possibility that their lack of professionalism was interfering with their work, even where incidents demonstrating this lack of professionalism were few.” UNM's MSJ at 18 (citing Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 2003); Conrad v. Bd. of Johnson Cty. Comm'rs, 237 F.Supp.2d 1204 (D. Kan. 2002)(Maxse, M.J.); Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013); Mickens v. Polk Cty. Sch. Bd., 430 F.Supp.2d 1265 (M.D. Fla. 2006)(Merryday, J.); Fritsch v. City of Chula Vista, No. 98-0972-E-CGA, 2000 WL 1740914 (S.D. Cal. Feb. 22, 2000)(Enright, J.)). UNM contends that this precedent provides support for its conclusion that Dr. Rivero's “lack of professionalism, rudeness, over-reaction, and anger” justified a psychological examination. UNM's MSJ at 19. UNM asserts that Dr. Rivero's conduct means that the examination was “job related and consistent with business necessity, ” warranting summary judgment for UNM on Dr. Rivero's claim of a Rehabilitation Act violation. UNM's MSJ at 20.

         Finally, as to the constructive discharge claim, UNM asserts that the Rehabilitation Act imposes the same standards as the ADA for claims of discriminatory termination, under which constructive discharge falls. See UNM's MSJ at 20. UNM thus maintains that making a prima facie case under the Rehabilitation Act requires Dr. Rivero to establish that: (i) he “is a disabled person within the meaning of the ADA”; (ii) he “is able to perform the essential functions of the job, with or without reasonable accommodation”; and (iii) “the employer terminated [the] employment under circumstances which give rise to an inference that the termination was based on [his] disability.” UNM's MSJ at 21 (first alteration in UNM's MSJ)(quoting Morgan v. Hill, 108 F.3d 1319, 1323 (10th Cir. 1997)). UNM asserts that Dr. Rivero cannot meet this test, because he is not a disabled person under the ADA, and because it did not terminate him -- noting that it is thus unnecessary to determine whether he “was able to perform the essential functions of his job.” UNM's MSJ at 21. UNM notes that Dr. Rivero

does not claim that he has a physical or mental impairment, or that he has a record of such impairment . . . . [The] sole basis for his claim that UNM regarded him as disabled is the fact that UNM required him to undergo a psychological evaluation as a condition of increased hours and because of his professionalism issues.

         UNM's MSJ at 21. This psychiatric evaluation requirement, UNM asserts, is not enough to meet the ADA definition of disability, [88] because the caselaw establishes “that a requirement that an employee undergo a psychological evaluation does not equal a perception of impairment.” UNM's MSJ at 22 (citing cases). UNM maintains that the undisputed facts do not indicate that it regards Dr. Rivero as impaired and, thus, he does not meet the ADA definition of “disabled.” UNM's MSJ at 23. Further, UNM avows that “the plain facts are that Plaintiff was not discharged.” UNM's MSJ at 23. UNM also notes that “a finding of constructive discharge may not be based solely on a discriminatory act.” UNM's MSJ at 23 (emphasis in UNM's MSJ)(quoting Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001), overruled on other grounds as recognized by Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003)). UNM asserts that, because Dr. Rivero's constructive discharge claim is based only on the psychiatric evaluation requirement, and because he offers no evidence that this requirement caused his working conditions to deteriorate, there are no grounds for a constructive discharge claim. See UNM's MSJ at 24-25. Finally, UNM argues that Dr. Rivero waited an unreasonable amount of time to resign -- three years after receipt of the Addendum, and five months after receipt of affidavits showing that UNM disclosed his entire personnel file -- and, thus, foreclosed his claim of constructive discharge. See UNM's MSJ at 25.

         3. Rivero's Response.

         Dr. Rivero filed his consolidated response to UNM's MSJ on March 8, 2018. See Rivero's Response at 1. First, he argues that UNM does not have the needed objective evidence to justify the psychiatric examination requirement. See Rivero's Response at 20. He notes that UNM's definition of professionalism contains criteria which “are by varying degrees subjective, ” thus precluding the “objective basis” needed to require a medical examination. Rivero's Response at 21. Dr. Rivero also cites to record evidence, allegedly contradicting UNM's assertion that he lacked professionalism, to conclude that there are genuine issues of material fact as to whether the psychiatric examination requirement was job-related and consistent with business necessity, thus arguing that summary judgment is improper. See Rivero's Response at 22-24.

         Second, Dr. Rivero argues that there is “a genuine issue of material fact as to the nature and scope of the psychiatric examination, ” again precluding summary judgment on whether the examination was job-related and consistent with business necessity. Rivero's Response at 25. He asserts that the Addendum contains no language limiting the psychiatric examination's scope and would have granted UNM “unfettered access to Dr. Rivero's psychiatric records, irrespective of content, ” making it so invasive that UNM must have “regarded Dr. Rivero as disabled.” Rivero's Response at 24. Further, Dr. Rivero argues that these records “would be placed in Dr. Rivero's medical staff file, allowing any future parties who may seek to credential Dr. Rivero (including other hospitals) to review the records of psychiatric evaluations.” Rivero's Response at 25. Dr. Rivero maintains that he would also “be forced to waive all rights to appeal internally or to legal recourse.” Rivero's Response at 25. Dr. Rivero asserts that the Addendum's psychiatric evaluation requirement also does not match the agreement that Dr. Rivero and Dr. Schenck reached in December, 2010, for Dr. Rivero to participate in counseling to return to full-time status. See Rivero's Response at 25. Finally, Dr. Rivero distinguishes all the cases that UNM cites for the proposition that unprofessional behavior provides grounds for a psychiatric evaluation, noting that the conduct in those cases was much more egregious than his own. See Rivero's Response at 26-27. He asserts that there is no question that he “would be unable to perform essential job functions, ” so UNM must show that he suffered some medical condition “present[ing] a direct threat” to be justified in its psychiatric evaluation requirement. Rivero's Response at 28.

         Dr. Rivero also argues that he makes a prima facie case of constructive discharge. See Rivero's Response at 28. Dr. Rivero posits that, if the psychiatric examination was not job-related and consistent with business necessity, then it “is per se discriminatory under the Rehabilitation Act.” Rivero's Response at 29. While recognizing that some cases do not “automatically imply a ‘regarded as disabled' classification” upon a party required to undergo a medical examination, Dr. Rivero asserts that “[t]he Addendum's invasiveness, its limitless scope, and waiver of all legal rights” means that “[a]nyone subjected to it must be presumed to be mentally ill.” Rivero's Response at 29. Dr. Rivero argues that there is evidence showing UNM regarded him as having a mental condition limiting his ability to work and that “UNM is seeking to confirm its presupposition” with the Addendum's psychiatric evaluation requirement. Rivero's Response at 30. Dr. Rivero asserts that UNM viewed his purported “lack of professionalism” as precluding his return to full-time status and his stress to be “the emotional trigger that caused [him] to be substantially limited in his ability to work as a surgeon, ” thus meaning that UNM regarded him as disabled. Rivero's Response at 30-31. Dr. Rivero argues that the fact that UNM treated him as disabled is enough for him to be “‘regarded as' disabled.” Rivero's Response at 31. Dr. Rivero avers that UNM “treated [him] as though he could not perform his job under the type of stress that was a normal part of . . . his job” by not allowing him to return to full-time employment without following the Addendum's requirements. Rivero's Response at 31. This treatment, Dr. Rivero argues, creates a genuine issue of material fact whether UNM regarded him as disabled. See Rivero's Response at 32. Further, he asserts that “a dispute with Dr. David Pitcher in 2003 . . . contributed to a culture of animosity toward Dr. Rivero, ” creating an intolerable workplace. Rivero's Response at 32-33. Dr. Rivero alleges that, adding to this hostile environment, “Dr. Schenck played a deceitful and manipulative game with Dr. Rivero, at once purporting to be his friend, facilitating the delay engaged in by other administrators, and then presenting baiting and switching the agreement to return.” Rivero's Response at 33. Dr. Rivero also argues that Dr. Schenck retaliated against him for requesting his credentialing file -- which Dr. Rivero requested to find evidence that the psychiatric examination was illegal -- by thereafter withdrawing the Addendum and precluding Dr. Rivero's return to full-time status at UNM. See Rivero's Response at 33. Dr. Rivero asserts that UNM's later document production reveals no reason to require a psychiatric examination and shows that he “was demoted without notice from his role as Chief of Adult Reconstruction.” Rivero's Response at 34. Dr. Rivero argues that these cumulative actions “created a workplace in which no reasonable person could continue to work, ” forcing him to resign. Rivero's Response at 34.

         In response to UNM's assertion that the FAC is untimely, Dr. Rivero notes that there must be a discharge for a claim of constructive discharge to accrue. See Rivero's Response at 34. Thus, he agrees with Magistrate Judge Lynch's decisions in the MTD Order regarding when his causes of action accrued. See Rivero's Response at 35. Finally, Dr. Rivero argues that his claim of retaliation is preserved for the jury to determine at trial, because UNM did not address this claim in UNM's MSJ. See Rivero's Response at 35.

         4. UNM's Reply.

         UNM replied on February 2, 2018. See UNM's Reply at 1. First, UNM argues that Dr. Rivero brings two causes of action -- one “for the alleged illegal medical inquiry itself” and the other “for constructive discharge” -- with separate dates of accrual. UNM's Reply at 14. UNM allows that the constructive discharge cause of action accrued when Dr. Rivero resigned, but reasserts that the cause of action for the medical inquiry accrued when Dr. Rivero received the Addendum, pursuant to the discovery rule. See UNM's Reply at 14 (citing Filer v. Polston, 886 F.Supp.2d 790, 796 (S.D. Ohio 2012)(Rose, J.)). UNM argues that, even if the cause of action for the medical inquiry accrued when Dr. Rivero knew of the alleged legal injury, this cause of action would still be time-barred, because Dr. Rivero's EEOC filing on January 20, 2012, “demonstrate[s] conclusively that Plaintiff had all of the information needed to file his Rehabilitation Act claim no later than that date, ” UNM's Reply at 15, and he filed his original complaint more than three years later, see UNM's Reply at 15. See also UNM's Reply at 14. Further, UNM asserts that this filing does not toll the statute of limitations for this cause of action, because “[a]n E.E.O.C. administrative action was not a prerequisite for Plaintiff's Rehabilitation Act claim.” UNM's Reply at 14. UNM posits that, because Dr. Rivero “has failed to even attempt to refute this argument” that the medical inquiry claim is time-barred, the argument “should be deemed as accepted.” UNM's Reply at 15.

         Second, UNM asserts that the psychiatric evaluation requirement “was job related and consistent with business necessity.” UNM's Reply at 15. UNM asserts that it offered the psychiatric evaluations to Dr. Rivero “to help him return to full-time employment, and to assuage the concerns of many individuals who were opposed to allowing Plaintiff to return full time.” UNM's Reply at 15. UNM notes that it had no contractual obligation to increase Dr. Rivero's hours as he years earlier had reduced his time to a 0.05 FTE on his own volition. See UNM's Reply at 15. Further, UNM contends that Dr. Rivero knew that his agreement with Dr. Schenck to attend counseling sessions involved meeting with a psychiatrist, because Dr. Rivero “contacted a UNM psychiatrist to set them up.” UNM's Reply at 15 (citing UNM's MSJ ¶¶ 36- 39, at 9). Accordingly, UNM maintains that the Addendum's language “generally followed the agreed upon four counseling sessions with a psychiatrist.” UNM's Reply at 15 (citing UNM's MSJ ¶ 41, at 9). UNM notes that Dr. Rivero does not dispute that a psychiatric evaluation may be appropriate under certain circumstances, but that he unsuccessfully attempts to distinguish those cases and to argue, without evidence, that the evaluations UNM required “were especially onerous.” UNM's Reply at 16. UNM argues that the caselaw allows an employer to require a medical evaluation where the employer has “sufficient evidence to raise the question” whether “the employee is incapable of performing his job, ” and notes the number of complaints brought against Dr. Rivero. UNM's Reply at 16 (citing Adair v. City of Muskogee, 823 F.3d at 1312-13). See id. at 16-17. While Dr. Rivero argues “that many of these complaints were not proven, ” UNM asserts “that the staggering coincidence of these multiple complaints, even if not proven, certainly would cause a reasonable person to inquire as to Plaintiff's level of professionalism, requiring the need for some type of psychological evaluation.” UNM's Reply at 17. For example, UNM notes that it “received 10 complaints from individuals claiming that [Dr. Rivero] disparaged their inability to speak English, ” which, even if the complaints' substance are not proven, the number “creates a reasonable concern, in the aggregate, that Plaintiff had a pattern of disparaging individuals with limited English proficiency.” UNM's Reply at 17. UNM argues that some of the complaints have “some demonstrable basis in truth, ” because a patient complained that Dr. Rivero compared him to a monkey and Dr. Rivero admits to discussing with that patient a study in which monkeys could not resist drugs. See UNM's Reply at 18. UNM also notes Dr. Rivero's own statements in the emails that he authenticated in his deposition, in which he blamed the messenger -- Barela, the patient advocate who “was merely passing along patient complaints, without taking sides” -- used all capital letters, and threatened to report Barela to his supervisor. UNM's Reply at 18.

         Third, UNM asserts that the psychiatric evaluation requirement “was not open-ended, in the manner that Plaintiff suggested.” UNM's Reply at 19. UNM maintains that the requirement “consisted of four sessions with a board certified psychiatrist, in order to determine how Plaintiff could best improve his professionalism.” UNM's Reply at 19. UNM asserts that, while Dr. Rivero would have to follow the psychiatrist's recommendations to increase his employment, he never underwent an evaluation and therefore has no basis for believing that these recommendations would be onerous. See UNM's Reply at 19. UNM also asserts that it needed access to the records of the evaluations so that it could ensure Dr. Rivero was taking steps to improve his professionalism. UNM's Reply at 19. Further, UNM maintains that there are separate professionalism requirements for Dr. Rivero at ¶ 0.05 FTE and as a full-time surgeon, because, at 0.05 FTE, Dr. Rivero only “operated on patients with whom he had a pre-existing relationship, or he performed surgeries alongside UNM surgeons, who would conduct the pre operative and post operative services, ” limiting Dr. Rivero's exposure to conscious patients. UNM's Reply at 20. See id. at 19-20. UNM asserts that, at 0.05 FTE, Dr. Rivero “was relieved from the day-to-day demands of professionalism, ” but, as a full-time surgeon, his “professionalism issues would need to be addressed.” UNM's Reply at 20.

         Fourth, UNM argues that it did not regard Dr. Rivero as disabled, so he was not constructively discharged. See UNM's Reply at 20. UNM notes that, in each of Dr. Rivero's reappointment letters, it clearly states that he is not disabled, suffers no impairment, and needs no accommodation, and that no documents in Dr. Rivero's personnel file indicate that he suffers from an impairment. See UNM's Reply at 20. UNM states that Dr. Rivero focuses on the psychiatric evaluation requirement and Dr. Schenck's suggestion that Dr. Rivero not be on call to establish that UNM regarded Dr. Rivero as disabled. See UNM's Reply at 21. UNM asserts that Dr. Rivero's argument, however, has no merit, because caselaw establishes that an employer's requirement that an employee undergo psychiatric evaluation does not equate to a perception of impairment. See UNM's Reply at 21 (citing Lanman v. Johnson Cty., 393 F.3d 1151, 1157 (10th Cir. 2004), superseded on other grounds by statute, 42 U.S.C. § 12102(3)(A); Manson v. Gen. Motors Corp., 66 Fed.Appx. 28, 36 (7th Cir. 2003); Mickens v. Polk Cty. Sch. Bd., 430 F.Supp.2d 1265, 1274 (M.D. Fla. 2006)(Merryday, J.)). UNM states that Dr. Rivero does not dispute the caselaw, but instead maintains that the requirement involves “such an extensive examination” that UNM must have considered him mentally ill, but cites no “facts, case law, or expert testimony that would indicate that a simple four part psychological evaluation indicated a belief on the part of UNM that he was mentally impaired.” UNM's Reply at 22. UNM asserts that Dr. Rivero exaggerates the psychiatric evaluation requirement. See UNM's Reply at 22. Further, UNM argues that Dr. Schenck's excusal of Dr. Rivero from being on call, which “was one aspect of a particular job, ” does not mean that UNM considered Dr. Rivero “incapable of working as a surgeon, let alone incapable of working in general.” UNM's Reply at 23 (citing Martin v. Kansas, 996 F.Supp. 1282, 1290 (D. Kan. 1998)(Lungstrum, J.)). UNM asserts that Dr. Rivero's argument that this excusal shows UNM regarded him as disabled is effectively an argument “than an employer regards an employee as disabled if it makes any accommodation for any of the employee's difficulties, ” which is not a correct statement of the law. UNM's Reply at 23 (citing Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir. 2004); Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F.Supp. 641, 659-60 (D.D.C. 1997)(Attridge, M.J.); Whitlock v. Mac-Gray, Inc., No. Civ.A. 00-10546-GAO, 2002 WL 31432688, at *3 (D. Mass. Oct. 30, 2002)(O'Toole, J.)).

         Fifth, UNM argues that, even if it regarded Dr. Rivero as disabled, Dr. Rivero still cannot make a case for constructive discharge. See UNM's Reply at 24. UNM asserts that constructive discharge requires more than a discriminatory act, and that “there must also be aggravating factors that make staying at the job intolerable.” UNM's Reply at 25 (internal quotation marks omitted)(quoting Boyer v. Cordant Techs., Inc., 316 F.3d at 1140). UNM contends that actions ancillary to the working conditions cannot establish constructive discharge; the working conditions themselves must be intolerable. See UNM's Reply at 25 (citing Jaffe v. Sedgwick Claims Mgmt. Servs., Inc., No. 2:17-cv-03421-ODW (Ex), 2017 WL 316561, at *4 (C.D. Cal. July 24, 2017)(Wright, J.)). UNM construes Dr. Rivero's dispute with Dr. Pitcher as a personality conflict, with no evidence that Dr. Pitcher regarded Dr. Rivero as disabled nor that such regard motivated the conflict. See UNM's Reply at 25. As to Dr. Rivero's contention that Dr. Schenck “‘played a deceitful and manipulative game' with him, ” UNM reasserts that Dr. Rivero knew the counseling sessions would be with a psychiatrist, because he had contacted one for this purpose. UNM's Reply at 25-26 (quoting Rivero's Response at 33). Further, UNM notes that Dr. Schenck did not draft the Addendum and withdrew it only after Dr. Rivero “refused to admit his prior unprofessionalism, which was the entire reason why counseling was suggested.” UNM's Reply at 26 (citing UNM's MSJ ¶¶ 33, 43-44, at 8, 10). UNM asserts that, after Dr. Schenck withdrew the Addendum, Dr. Rivero “stayed on at UNM at the behest of Dr. Schenck.” UNM's Reply at 26. UNM argues that Dr. Rivero's problems with Dr. Pitcher and Dr. Schenck “were in the nature of ‘personality conflicts and strong differences of opinion' that do not support a claim for constructive discharge.” UNM's Reply at 26 (quoting Sanchez v. Gen. Growth Mgmt. Co., 136 F.3d 1328, 1998 WL 44520, at *1 (5th Cir. Jan. 23, 1998)(per curiam)). UNM also argues that these actions which Dr. Rivero describes did not impact his working conditions. See UNM's Reply at 26.

         Finally, UNM asserts that Dr. Rivero “has not preserved a retaliation claim for trial.” UNM's Reply at 27. UNM notes that the FAC contains only “the conclusory averment that ‘[t]he decision to revoke the offer of more hours was also motivated by retaliation because Dr. Rivero objected to the illegal medical inquiry.'” UNM's Reply at 27 (quoting FAC ¶ 53, at 10). UNM also notes that the FAC does not list “retaliation” as its own cause of action and that the FAC has only one Count for “violation of the Rehabilitation Act.” UNM's Reply at 28 (quoting FAC at 9). UNM asserts that “it was reasonable for UNM to rely on” Magistrate Judge Lynch's determination in the MTD Order that the FAC contains two causes of action: (i) “the allegedly illegal medical inquiry”; and (ii) “the alleged constructive discharge.” UNM's Reply at 28. UNM argues that, even if the FAC states a claim for retaliation, the claim would be time-barred, because Dr. Rivero waited five years after Dr. Schenck withdrew the Addendum to sue. See UNM's Reply at 28. UNM asserts that Dr. Rivero's failure to acknowledge his unprofessional behavior rendered the Addendum pointless, so Dr. Rivero's “retaliation claim is wholly without merit.” UNM's Reply at 28.

         5. Rivero's MSJ.

         Dr. Rivero filed Rivero's MSJ on December 8, 2017. See Rivero's MSJ at 1. In Rivero's MSJ, Dr. Rivero asks the Court to strike some of UNM's affirmative defenses raised in the Defendants University of New Mexico Board of Regents' Answer to Plaintiff's First Amended Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973, filed January 5, 2017 (Doc. 45)(“Answer”). See Rivero's MSJ at 1. Dr. Rivero first discusses UNM's affirmative defenses I, that the “Plaintiff failed to state a claim for which relief can be granted, ” Answer at 10; II, that the “Plaintiff's claims are barred by the statute of limitations, ” Answer at 10; and III, that the “Plaintiff's claims are barred by the doctrine of laches and waiver, ” Answer at 10. See Rivero's MSJ at 11. Dr. Rivero asserts that these affirmative defenses “are all based on the assertion the claims under the Rehabilitation Act in the FAC are barred by the statute of limitations, ” Rivero's MSJ at 11, which he contends the MTD Order already addressed, see Rivero's MSJ at 11-12. Dr. Rivero asserts that the factual record supports the FAC's allegations and the MTD Order's conclusions. See Rivero's MSJ at 12. Dr. Rivero cites the Supreme Court of the United States' decision in Green v. Brennan to argue that the limitations period does not begin until “the plaintiff has a complete and present cause of action, ” which, for a constructive discharge claim, requires resignation. Rivero's MSJ at 12 (citing Green v. Brennan, 136 S.Ct. at 1776-77). Dr. Rivero argues that the MTD Order's “logic as to the timeliness of claims filed under the Rehabilitation Act may now be supported with facts.” Rivero's MSJ at 13. Dr. Rivero quotes the MTD Order's analysis:

“Dr. Rivero did not find out that UNM had no business necessity for the[ psychiatric examination] requirements until affidavits were filed by Drs. Trotter and Bailey in the state case which averred that all of the documents had been produced, and Dr. Rivero was able to determine that UNM had no evidence or documentary support to substantiate its requirement of psychiatric testing . . . . The affidavits were filed, respectively, on January 15, and January 24, 2014 . . . . Given that a plaintiff must prove that his employer had no business necessity for the required medical testing, Dr. Rivero's claim under § 794 for the psychiatric testing was not complete and cognizable until January 2014.”

         Rivero's MSJ at 14 (quoting MTD Order at 8). Dr. Rivero thus asserts that his “claims under the Rehabilitation Act were timely filed both upon the initial filing of the Original Complaint on April 19, 2016 (in relation back to the claims) and upon the filing of the FAC, ” “less than three years from the time of accrual.” Rivero's MSJ at 14. Dr. Rivero notes that he resigned from UNM in May, 2014 -- less than three years before the Complaint's filing -- so he argues that his constructive discharge claim is also timely. See Rivero's MSJ at 14.

         Dr. Rivero notes the law-of-the-case doctrine as an additional ground for striking UNM's affirmative defenses I through III. See Rivero's MSJ at 15. According to Dr. Rivero, the law-of- the-case doctrine “posits that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'” Rivero's MSJ at 15 (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). Dr. Rivero asserts that a court may

depart from the doctrine in “three exceptionally narrow circumstances: (1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice.”

         Rivero's MSJ at 15 (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)). Dr. Rivero argues that neither law nor fact has changed since the MTD Order, and that the decision is not clearly erroneous, so none of the exceptions to law-of-the-case doctrine applies here and the finding of timeliness should remain. See Rivero's MSJ at 15-16.

         Dr. Rivero then discusses UNM's affirmative defense XIII: “At all times Defendant UNM acted in accordance with its policies and regulations, and applied such policies and regulations consistently and fairly.” Answer at 10. See Rivero's MSJ at 16. Dr. Rivero argues that the Court should strike this defense, because it lacks factual support -- “[t]he record contains no evidence that UNM has applied any of its policies or regulations with respect to any of the claims brought by Dr. Rivero in the FAC, ” and “there is evidence that Defendant violated its own Policy C70[89] by failing to provide Dr. Rivero with his requested records.” Rivero's MSJ at 16. Dr. Rivero notes that, in response to his interrogatory asking UNM to provide facts to support its affirmative defenses, UNM “states that ‘UNM's policies require faculty members to act in a professional manner, and to treat each [sic] other employees, as well as patients, with respect.'” Rivero's MSJ at 17 (quoting Board of Regents of the University of New Mexico's Supplemental Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, No. XIII Answer at 3, filed December 8, 2017 (Doc. 144-12)(“Rivero's First Interrogatories, Supplemental Answer”)). Dr. Rivero posits that UNM's “supplemental answer clarifies no further, ” because it “states only that, ‘professional and institutional standards require UNM to maintain protect its patients, families, employees, and staff by maintaining professional standards, and addressing issues of unprofessionalism and disruptive behavior.'” Rivero's MSJ at 17 (quoting Rivero's First Interrogatories, Supplemental Answer, No. XIII at 5). Further, Dr. Rivero asserts that UNM has no actual policies relevant to its psychiatric examination requirement to implement, because “UNM states that it ‘has no set policy pertaining to Mental Examinations.'” Rivero's MSJ at 17 (quoting Board of Regents of the University of New Mexico's Second Supplemental Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, No. 4 Second Supplemental Answer at 6, filed December 8, 2017 (Doc. 144-13)).

         Dr. Rivero also argues that UNM's affirmative defense XIV -- that the “Defendant fulfilled any and all obligations it had to Plaintiff under contract or statute, ” Answer at 11 --lacks factual support, see Rivero's MSJ at 17. Dr. Rivero notes that, in response to his interrogatories to explain its affirmative defenses with respect to XIV, UNM “states, ‘See above Affirmative Defenses. Discovery is ongoing. UNM reserves the right to supplement its Answer to its Interrogatory.'” Rivero's MSJ at 18 (quoting Rivero's First Interrogatories, Supplemental Answer, No. XIII at 5).[90] Dr. Rivero maintains that, because UNM “has neither amended nor supplemented its explanation of this affirmative defense” and “has failed to specify which affirmative defenses apply to its answer, ” affirmative defense XIV lacks factual support and the Court should strike it. Rivero's MSJ at 18.

         Finally, Dr. Rivero challenges UNM's affirmative defense XV, that the “Defendant reserves the right to amend its Answer to Plaintiff's Complaint to include additional Affirmative Defenses once facts supporting the same become known.” Answer at 11. See Rivero's MSJ at 18. Dr. Rivero asserts that the Court should strike this defense, because the “[d]iscovery is closed and dispositive motions will have been exchanged. Any additional defenses would prejudice Dr. Rivero at such a late stage of litigation.” Rivero's MSJ at 18.

         6. UNM's Response.

         UNM responded on January 12, 2018. See UNM's Response at 1. UNM first asserts that the Court is not bound by the MTD Order regarding its affirmative defenses I through III and summary judgment is improper as to these defenses. See UNM's Response at 9-10. UNM argues that the “Court has the discretion to reconsider parts of the [MTD] Order . . . to hold that Plaintiff's medical examination claims are barred by the applicable statute of limitations, ” and “to hold that Plaintiff failed to state a claim for constructive discharge upon which relief can be granted.” UNM's Response at 11. UNM notes that courts have the “inherent power to reopen any interlocutory matter in its discretion, ” meaning that any

“order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”

         UNM's Response at 11-12 (emphasis in UNM's Response)(quoting Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.), superseded on other grounds by statute, Fed.R.Civ.P. 59). UNM asserts that the MTD Order is “entirely interlocutory: it provided a final judgment as to none of the rights and liabilities of any of the parties” and, thus, Dr. Rivero's argument as to the law-of-the-case doctrine fails. UNM's Response at 12. UNM further notes that Dr. Rivero cites two cases which “concern[] the question of whether an earlier appellate ruling could be overturned; neither discussed interlocutory district court orders.” UNM's Response at 12 (discussing United States v. Monsisvais and United States v. Alvarez). Accordingly, UNM posits that the-law-of-the-case doctrine “require[s] that district courts remain consistent with earlier appellate rulings” and does not apply “to a district court's own non-final orders.” UNM's Response at 12 (emphasis in original). UNM notes that the Tenth Circuit, in Allison v. Bank One-Denver, 289 F.3d 1223 (10th Cir. 2002), upheld a district court's decision that appeared to contradict its earlier, oral ruling, stating that “[a] lower court's ability to depart from its own prior decisions is discretionary.” UNM's Response at 13 (internal quotation marks omitted)(quoting Allison v. Bank One-Denver, 289 F.3d at 1247).

         UNM therefore argues that the Court has discretion to revisit the MTD Order “and to alter that decision so that it is more consistent with applicable law.” UNM's Response at 14. UNM asserts that, “in the context of a civil rights claim, the cause of action accrues, indicating a ‘complete and present cause of action' when the plaintiff finds out about the injury, not when the plaintiff obtains all relevant facts.” UNM's Response at 14 (quoting Wallace v. Kato, 549 U.S. at 388; and citing Baker v. Bd. of Regents of the State of Kan., 991 F.2d at 632). UNM argues that, “because ‘the discovery rule hinges upon actual, as opposed to legal, injury, '” Dr. Rivero's claim of an illegal medical examination accrued in March, 2011, which is when he alleges that he received the Addendum with the psychiatric examination requirement. UNM's Response at 14 (quoting Filer v. Polston, 886 F.Supp.2d at 796). UNM also notes that, as of January 20, 2012, Dr. Rivero was aware of the psychiatric evaluation requirement and believed that it violated his rights, because he filed a charge of discrimination with the EEOC alleging this violation. See UNM's Response at 15. UNM maintains that the Rehabilitation Act incorporates New Mexico's three-year statute of limitations for personal injury and does not require exhaustion of administrative remedies. See UNM's Response at 9. Accordingly, UNM argues that, because Dr. Rivero knew of the examination requirement and believed it illegal more than three years before he filed his Complaint, the medical examination claim is time-barred and, thus, Dr. Rivero “is not entitled to summary judgment as to the statute of limitations defense regarding that cause of action.” UNM's Response at 15. See id. at 15-16.

         UNM concedes that Dr. Rivero's claim for constructive discharge did not accrue until he resigned and, thus, that the statute of limitations does not bar that claim. See UNM's Response at 16. UNM argues, however, that neither the FAC “nor facts developed through discovery establish a claim for constructive discharge.” UNM's Response at 16. Although the MTD Order found that Dr. Rivero's FAC states a claim for constructive discharge, UNM asserts that the Court may revisit this decision. See UNM's Response at 16. UNM notes that “‘[t]he bar is quite high' for proving constructive discharge.” UNM's Response at 16 (quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)). Further, UNM asserts that constructive discharge requires that the employer take deliberate action which “makes or allows the employee's working conditions to become so intolerable that the employee has no other choice but to quit, ” using an objective, reasonable-person standard to judge intolerability. UNM's Response at 16 (internal quotation marks omitted)(quoting MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1281 (10th Cir. 2005), abrogated on other grounds by Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018)). UNM argues that, in Dr. Rivero's FAC, his “sole claim regarding constructive discharge concerned the filing of affidavits by two UNM officials, in a state mandamus action, indicating that all documents had been submitted, ” which Dr. Rivero took to mean UNM had no legal grounds for its psychiatric evaluation requirement and, “[a]s a consequence, [he] alleged that conditions had become intolerable.” UNM's Response at 16-17. UNM notes that Dr. Rivero “does not allege that the affidavits that UNM submitted actually affected his working conditions, ” but that “he only alleges that they affected his subjective view of those working conditions.” UNM's Response at 17. UNM asserts that it submitted the affidavits that the state court ordered in response to Dr. Rivero's action, so it was not UNM's deliberate act, and posits that “the only deliberate act at issue in the instant case was the requirement that Plaintiff undergo a psychological evaluation.” UNM's Response at 17. UNM argues that the psychiatric evaluation requirement is not enough for a constructive discharge claim, but, even if it is sufficient, Dr. Rivero waited too long to resign to prevail on this claim. See UNM's Response at 17 (citing Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir. 1991)). UNM argues that, because Dr. Rivero “remained at UNM for three years after being given this supposedly onerous Addendum, ” his claim must fail, because “he clearly did not find the conditions so terrible that he felt he had no choice but to quit.” UNM's Response at 18. UNM posits that, if the affidavits rendered Dr. Rivero's working conditions intolerable, he still waited too long to quit, because UNM filed the affidavits in January, 2014, and Dr. Rivero waited to resign until May, 2014. See UNM's Response at 18 (citing Smith v. Bath Iron Works Corp. for the proposition that a four-month gap between the conduct and the resignation precludes a claim for constructive discharge). According to UNM, therefore, Dr. Rivero is not entitled to summary judgment on UNM's affirmative defenses I through III. See UNM's Response at 18.

         UNM then argues that it “has produced substantial evidence in support of” its affirmative defense XIII, that it followed its policies, and applied them fairly and consistently. UNM's Response at 19. UNM argues that it has “policies indicating that unprofessional behavior be addressed swiftly and decisively, ” and that “the Joint Commission, upon which UNM relies for its accreditation, also requires that medical facilities address unprofessional conduct.” UNM's Response at 19 (citing Board of Regents of the University of New Mexico's Second Supplemental Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, No. 4 Answer, Supplemental Answer, and Second Supplemental Answer at 4-8, filed January 12, 2018 (Doc. 159-3)(“Rivero's First Interrogatories, Second Supplemental Answer”). UNM asserts that Dr. Rivero “had demonstrated episodes of severe unprofessional behavior, which UNM was required to address pursuant to its policies and those of its accreditation body.” UNM's Response at 19 (citing UNM's MSJ at 4-6). UNM posits that “[i]t is well settled that an employer can use psychological evaluations to determine the cause of unprofessional behavior without violating the Americans With Disabilities Act.” UNM's Response at 19 (citing Lanman v. Johnson Cty., 393 F.3d at 1157). UNM argues that it would be “practically impossible” to draft a formal policy “governing when a physician exhibiting unprofessional behavior is referred to a mental health evaluation, ” so it is irrelevant that UNM does not have such a policy. UNM's Response at 19. UNM notes that it has referred physicians to mental health evaluations in the past, see UNM's Response at 19 (citing Rivero's First Interrogatories, Second Supplemental Answer, No. 3 at 2-3), and that Dr. Schenck did not draft the Addendum, so it is irrelevant that he did not consult any policies on mental health evaluations, see UNM's Response at 20.

         UNM also asserts that its affirmative defense XIV has factual support, stating that, in response to Dr. Rivero's interrogatories, UNM referred to its other affirmative defenses, because “the facts supporting the other affirmative defenses clearly also support UNM's defenses that it fulfilled its obligations under contract or statute.” UNM's Response at 20. According to UNM, Dr. Rivero “has not argued that UNM violated its contractual duties to him, ” and only “that UNM violated the Rehabilitation Act's prohibition of medical examinations by requiring him to undergo a psychological evaluation as a condition of increased hours.” UNM's Response at 20.

         UNM asserts that the Rehabilitation Act “allows medical examinations that are ‘job-related and consistent with business necessity, ” UNM's Response at 20 (quoting 42 U.S.C. § 12212(d)(4)(A)), and its affirmative defenses V and VI -- on which Dr. Rivero does not seek summary judgment -- are based on this exception and contain factual support, see UNM's Response at 20-21. Accordingly, UNM argues that it did not violate the Rehabilitation Act, therefore “acted in accordance with its statutory obligations, ” and that “summary judgment is inappropriate as to that affirmative defense.” UNM's Response at 21.

         7. The First Disclosure Letter.

         The Court issued a disclosure letter to the parties on January 23, 2018.[91] See Letter from the Court to Eric D. Norvell, Alfred A. Park, and Lawrence M. Marcus (dated January 23, 2018), filed January 23, 2018 (Doc. 163)(“First Disclosure Letter”). The First Disclosure Letter's body states in full:

I want to bring a matter to your attention. I have, with my law clerks, reviewed the Judicial Code of Conduct and do not believe this matter requires me to recuse myself. I want everyone, however, to be fully informed and comfortable with my participation in the case.
In the fall of 2017, I co-taught a class at the University of New Mexico School of Law called “Church and State” with Andy Schultz. We have taught the class together on four other occasions. We taught similar classes from January until May in 2010 and 2012, and in the fall of 2006 and of 2015.
In addition to weekly classes, Mr. Schultz and I usually have to meet once before the semester begins to discuss the curriculum and once after the semester ends to grade papers. We also usually invite the students to one of our homes for the last class, food, and refreshments.
The last class was at my home on November 21, 2017, and both Mr. Schultz and his wife were present. We met on January 6, 2018 to grade papers and assign grades. To my knowledge, we are done with the class.
I waive my pay for the class.[92] In exchange, UNM gives me a student to help me write a law review article and he or she receives my pay.[93] The student helping me last fall may do some more work on the article in the future.[94] I also have made him an offer to serve as my law clerk for 2019-2020 and he has orally accepted.
I believe that I can be fair and impartial. I see no reason to recuse myself. Please call my Courtroom Deputy Clerk, Michelle Behning (505-348-2289), if anyone objects. I have instructed Ms. Behning not to tell me who calls. If anyone objects, or has any questions, we can perhaps, have a telephonic conference. If Ms. Behning does not receive any calls, I will proceed to handle the case.

         First Disclosure Letter at 1-2. Nobody called Ms. Behning about the First Disclosure Letter.

         8. Rivero's Reply.

         Dr. Rivero replied on February 14, 2018. See Rivero's Reply at 1. Dr. Rivero first argues that UNM's Response “offer[s] no grounds by which to apply the exceptions to the law of the case doctrine that would warrant revisiting of the affirmative defenses.” Rivero's Reply at 9. Dr. Rivero states that he does not dispute that the Court has discretion to revisit the MTD Order, but that reconsideration is unwarranted. See Rivero's Reply at 9 & n.3. Dr. Rivero asserts that “denials of motions to dismiss are conclusive” and so “any dispute as to such a denial could have been taken up on immediate appeal under the collateral order doctrine.”[95] Rivero's Reply at 9-10 (citing NCDR, L.L.C. v. Mauze & Bagby P.L.L.C., 745 F.3d 742, 748 (5th Cir. 2014)(“Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to the right to avoid the burden of litigation . . . . To be considered conclusive, it should be unlikely that the district court will revisit the order.” (citations and internal punctuation omitted))). Further, Dr. Rivero notes that the law-of-the-case doctrine also “holds that a court should generally adhere to its own prior rulings.” Rivero's Reply at 10 (internal quotation marks omitted)(quoting United States v. Lacey, No. 89-10054-01-SAC, 1994 U.S. Dist. LEXIS 7392, at *19 (D. Kan. May 6, 1994)(Crow, J.)). Dr. Rivero maintains that the Court “adheres to a three-factor analysis for reconsideration of an interlocutory order.” Rivero's Reply at 10. According to Dr. Rivero, the Court should: (i) “restrict its review of a motion to reconsider prior ruling in proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to reconsider challenges, ” Rivero's Reply at 10 (internal quotation marks omitted)(quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C., 308 F.R.D. 410, 434 (D.N.M. 2015)(Browning, J.)); (ii) “consider the case's overall progress and posture, the motion for reconsideration's timeliness relative to the ruling it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance the opposing party has placed in the Court's prior ruling, ” Rivero's Reply at 11 (internal quotation marks omitted)(quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C., 308 F.R.D. at 434); and (iii)

“be more inclined to grant motions for reconsideration if the movant presents (i) new controlling authority -- especially if the new authority overrules prior law or sets forth an entirely new analytical framework; (ii) new evidence -- especially if the movant has a good reason why the evidence was not presented the first time around; or (iii) a clear indication -- one that manifests itself without the need for in-depth analysis or review of the facts -- the Court erred, ”

         Rivero's Reply at 12 (quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C., 308 F.R.D. at 434-35). Dr. Rivero argues that the MTD Order thoroughly addressed UNM's arguments regarding timeliness in its MSJ and Response, as UNM raised the same arguments in the MTD. See Rivero's Reply at 11. Dr. Rivero also argues that he placed considerable, reasonable reliance on the MTD Order, noting the substantial discovery in which he and UNM have engaged, and that, despite the extensive discovery, UNM “has come forward with no material facts that change any aspect of the previously denied Motion to Dismiss.” Rivero's Reply at 11. Dr. Rivero further asserts that “there is no clear indication of error by the Court, ” so UNM “does not clear the threshold for reconsideration, ” Rivero's Reply at 12, and, thus, the Court should not reconsider UNM's statute of limitations arguments, see Rivero's Reply at 13.

         Dr. Rivero then argues that, if the Court reconsiders UNM's statute of limitations arguments, Green v. Brennan “disposes of Defendant's assertions that Dr. Rivero's claims are time-barred.” Rivero's Reply at 13. Dr. Rivero restates the events that lead to the intolerable workplace that caused his resignation:

[T]he discriminatory presentation of the illegal medical inquiry in the Addendum, the obstructionist and unlawful withholding of documents by UNM administrators, the withdrawal of the discriminatory Addendum when Dr. Rivero sought a basis for its terms, the fostering of frivolous defenses to the Mandamus Action to further facilitate wrongful withholding documents, and the filing of affidavits in January 2014 affirming that no additional documents existed for production.

         Rivero's Reply at 13-14 (citing Rivero's MSJ ¶¶ 10-26, at 3-7). Accordingly, Dr. Rivero asserts that the medical inquiry claim did not accrue until UNM filed affidavits attesting it produced all documents, because this notification is when Dr. Rivero could “determine that UNM had no business necessity for the psychiatric examinations, ” and that the constructive discharge claim did not accrue until he resigned on May 21, 2014. Rivero's Reply at 14. Dr. Rivero notes that the Court could determine that “the claim for discrimination for the illegal medical inquiry, because of its innate relationship to Dr. Rivero's termination of employment, may not have accrued as an independent claim until such time as Dr. Rivero resigned, ” although the MTD Order rejected this interpretation. Rivero's Reply at 14 n.4. Dr. Rivero responds to UNM's argument that he waited too long to resign by noting the Supreme Court's logic in Green v. Brennan that it “doubt[s] that a victim of employment discrimination will continue to work in an intolerable environment merely because he can thereby extend the limitations period for a claim of constructive discharge.” Rivero's Reply at 14 (internal quotation marks omitted)(quoting Green v. Brennan, 136 S.Ct. at 1781). Dr. Rivero argues that he “had endured years of denigration of his reputation, ” Rivero's Reply at 14; that Dr. Schenck and other administrators turned on him, see Rivero's Reply at 15; and that the affidavits declaring UNM disclosed all documents, with no basis for the psychiatric examination requirement, “were the discriminatory straws that broke the camel's back, ” Rivero's Reply at 15 (citing Ulibarri v. Lopez, No. 95-2291, 1996 U.S. App. LEXIS 27185, at *6 (10th Cir. 1996)). Dr. Rivero asserts that his “workplace was brimming with deceit, betrayal, and distrust, and no reasonable person could have continued to remain employed there.” Rivero's Reply at 15.

         According to Dr. Rivero, UNM's Reply in support of its own MSJ states “that Dr. Rivero did not respond to its arguments that the claims in the FAC are time-barred, ” which he asserts is not true, because Dr. Rivero incorporated his MSJ arguments in his Response. Rivero's Reply at 15 (citing Rivero's Response at 34-35). Dr. Rivero posits that this incorporation cannot be mistaken “as anything but an express refutation of the statute of limitations claims.” Rivero's Reply at 15. Dr. Rivero thus asserts that he adequately responded to UNM's MSJ arguments regarding the statute of limitations. See Rivero's Reply at 15.

         Dr. Rivero then underscores that reconsideration of UNM's affirmative defenses I and III is improper, and that these defenses do not survive because of UNM's reassertion that Dr. Rivero's FAC did not make a constructive discharge claim. See Rivero's Reply at 16. Dr. Rivero notes that Magistrate Judge Lynch “held that constructive discharge was adequately (if ‘inartfully') pled, enough so to survive a motion to dismiss, ” and Dr. Rivero asserts that this finding is conclusive as to bring the case through discovery. Rivero's Reply at 16 (quoting MTD Order at 6). Dr. Rivero maintains that, because UNM notes no new evidence to contest Dr. Rivero's constructive discharge claim, UNM is merely rehashing its same arguments, which the Court should not reconsider. See Rivero's Reply at 16. As to UNM's assertion that Dr. Rivero waited too long to resign, Dr. Rivero posits that UNM is “ask[ing] the Court to ignore facts that support the fostering of an intolerable workplace . . . [and] insinuate that that nothing happened during a purported gap of time when Dr. Rivero sought answers for why the Addendum contained its oppressive requirements.” Rivero's Reply at 17. Dr. Rivero argues that his workplace became intolerable when he determined that UNM had no basis for the psychiatric evaluation requirement upon UNM's filing of affidavits showing it produced all documents, and that he resigned within a reasonable time of this determination. See Rivero's Reply at 17. Dr. Rivero states that he “cleared out his locker during his monthly visit after the affidavits were filed and did not return to UNM, ” then tendered his formal resignation on May 14, 2014, which he contends was a reasonable date “given the gravity and significance of Dr. Rivero's circumstances as discussed in detail in the record of this case.” Rivero's Reply at 17 (citing Resignation Letter at 1). As to the defense of laches and waiver, Dr. Rivero argues that UNM's response to his interrogatory refers to its affirmative defense II response, which in turn refers to its MTD and statute-of-limitations defense. See Rivero's Reply at 17-18 (citing Rivero's First Interrogatories, Supplemental Answer, Nos. III. & II at 2). Dr. Rivero argues that UNM's MTD “contains no mention, explanation, or preservation of the defenses of ‘laches and waiver,' and the statute of limitations defense provides no explanation of, and bears no relation to, the ‘laches and waiver' defense, ” so UNM has not preserved it, and the Court should strike it. Rivero's Reply at 18.

         Dr. Rivero asserts that, although UNM attempts to preserve its affirmative defense XIII by citing to “pages of general statements[, ] . . . this paper blizzard does not mean that UNM actually implemented any of those statements.” Rivero's Reply at 18. Dr. Rivero asserts that UNM concedes that it has no set policy regarding mental examinations and, because Dr. Schenck gave Dr. Rivero the Addendum and is UNM's agent, “Dr. Schenck was responsible for understanding which policies were applied in presenting the document to Dr. Rivero.” Rivero's Reply at 19. See Rivero's Reply at 18-19.

         Finally, Dr. Rivero contends that UNM responds to his motion to strike affirmative defense “XIV with a vague and unclear assertion that it has adhered to statutory obligations, whatever those obligations may be.” Rivero's Reply at 19. Dr. Rivero argues that, because of UNM's apparent assertion that affirmative defenses “V and VI constitute the defenses pertaining to the Rehabilitation Act, ” affirmative defense “XIV is superfluous and should be stricken, since Aff. Def. V and VI encompass the entirety of Aff. Def. XIV.” Rivero's Reply at 19. Dr. Rivero argues that, if this apparent assertion is not the case, then the Court should strike UNM's affirmative defense XIV, because UNM “can cite to no other statute or contract applicable in this case.” Rivero's Reply at 19.

         9. The Complaints MIL.

         Dr. Rivero filed the Complaints MIL on December 8, 2017. See Complaints MIL at 1. Dr. Rivero anticipates that UNM “will attempt to introduce documentary evidence related to so-called ‘complaints' from patients, staff, administration, or other parties pertaining, directly or indirectly, to Dr. Rivero . . . as far back as 1992.” Complaints MIL at 1. Dr. Rivero contends that any complaint “not relevant to the time frame at issue in this litigation” is stale, and requests that the Court “prohibit[] the introduction, mention, allusion or other exposure of the jury to [such] complaints.” Complaints MIL at 1. Dr. Rivero argues that “[t]he relevant time frame pertaining to any complaints regarding Dr. Rivero is 2006 and thereafter, ” and that complaints before 2006 “are irrelevant, as they are too remote in time, ” and, at trial, “could mislead and confuse the jury and impermissibly prejudice the jury against Dr. Rivero.” Complaints MIL at 4.

         According to Dr. Rivero, UNM “cited as a basis for refusing to allow Dr. Rivero back without the onerous requirements of the Addendum as an ‘increase in complaints,' not all complaints cumulatively, ” and, in UNM's MSJ, UNM “acknowledges a notable gap between early complaints (in the mid-1990s) and later complaints (around 2006).” Complaints MIL at 4 (quoting Board of Regents of the University of New Mexico's Supplemental Responses to Plaintiff Dennis Rivero's First Set of Interrogatorries [sic], First Requests for Production of Documents, and First Requests for Admission, No. 5 Answer at 2, filed December 8, 2017 (Doc. 145-5); and citing UNM's MSJ ¶ 6, at 4). Dr. Rivero therefore argues that 2006 and after is the relevant time frame for complaints. See Complaints MIL at 5. Dr. Rivero also maintains that UNM's assertion of his “‘long history' of complaints is overstated.” Complaints MIL at 5 (quoting Joint Status Report at 6, filed January 31, 2017 (Doc. 48)). Dr. Rivero notes that he worked at UNM for fifteen years before entering private practice, and that “[h]e was never disciplined or subject to an adverse employment action.” Complaints MIL at 5. Further, Dr. Rivero notes that UNM promoted him to full professor in 2005 and that UNM provides “no evidence of complaints that were temporally proximate to [this] promotion.” Complaints MIL at 5. Dr. Rivero posits that, “if there were such complaints and they were so substantial as to give rise to a required psychiatric examination, ” it would be odd for UNM to promote him. Complaints MIL at 5. Finally, Dr. Rivero clarifies that he does not want the Court to exclude “evidence of the dispute between Dr. David Pitcher and Dr. Rivero from 2002-2003, ” as “this dispute forms a foundational basis of the motives of Defendant that led to the illegal medical inquiry and constructive discharge allegations of the FAC.” Complaints MIL at 5-6.

         10. The Complaints MIL Response.

         UNM responded on January 12, 2018. See Defendant University of New Mexico Board of Regents' Response Brief in Opposition to Plaintiff's Motion in Limine to Exclude Complaints Prior to 2006 at 1, filed January 12, 2018 (Doc. 158)(“Complaints MIL Response”). UNM contends that the complaints made before 2006 are relevant, “because at least one UNM physician cited these incidents to explain why he opposed Plaintiff's return to UNM.” Complaints MIL Response at 3 (citing Complaints Email at 1). UNM also asserts that these complaints “make it more probable that UNM officials were genuinely concerned about Plaintiff's unprofessional behavior, and also make it more probable that UNM had good grounds for this concern.” Complaints MIL Response at 3. UNM argues that Dr. Rivero's “lack of professionalism dates back to 1993, and provides insight into Plaintiff's pattern of behavior as a physician.” Complaints MIL Response at 3. UNM notes that, while Dr Rivero “appeared to have improved his behavior between 1994 and 2003, ” he could have made these changes “to improve his standing at UNM, ” which UNM argues is a possibility, because, “once his position was more secure, Plaintiff began to revert to his old unprofessional ways.” Complaints MIL Response at 3. UNM maintains that, with the complaints made in 2006, “it was certainly reasonable for UNM to have concerns that lack of professionalism was Plaintiff's standard behavioral pattern.” Complaints MIL Response at 5.

         UNM further notes that its concerns with returning Dr. Rivero to full-time employment also stemmed from his lack of “contrition for his earlier unprofessional behavior.” Complaints MIL Response at 4 (citing UNM's MSJ ¶ 31, at 7). UNM believes that Dr. Rivero's deposition validated this concern, when Dr. Rivero dismissed a vulgar outburst in the operating room “as locker room talk” and “trivialized his refusal to be treated for MRSA.” Complaints MIL Response at 4 (citing Rivero Depo. 143 at 35:10-18; id. at 26:13-28:25). UNM argues that Dr. Rivero's “very recent deposition testimony regarding these older incidents makes it more probable that Plaintiff was not truly contrite regarding his earlier lack of professionalism, ” and, thus, these incidents are “highly relevant to UNM's case.” Complaints MIL Response at 4. UNM posits that, because accreditation services for hospitals and hospitals in general recently started taking professionalism issues more seriously, the actions it took after JCAHO's Sentinel Alert in 2008 should “be viewed in light of ch[an]ges in attitude regarding professionalism.” Complaints MIL Response at 5. According to UNM, this change in attitude means “it would make sense for UNM to revisit Plaintiff's history when he was trying to return to full-time employment, ” making the older complaints relevant. Complaints MIL Response at 5.

         Accordingly, UNM argues that “the probative value of the older complaints . . . is not substantially outweighed by any danger of unfair prejudice.” Complaints MIL Response at 5. UNM underscores that, for the Court to exclude the older complaints, the danger of unfair prejudice “must substantially outweigh the” probative value of the evidence. Complaints MIL Response at 6 (emphasis in Complaints MIL Response). UNM also notes the Court's conclusion that exclusion “is an extraordinary remedy and should be used sparingly, ” such as where “the evidence . . . [has] an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Complaints MIL Response at 6 (internal quotation marks omitted)(quoting SEC v. Goldstone, 233 F.Supp.3d 1149, 1166 (D.N.M. 2017)(Browning, J.)). UNM contends that this standard is not met here, and that Dr. Rivero's “pattern of unprofessional behavior is to be considered as a whole, ” meaning that “any evidence that exemplifies this behavioral pattern, even if it is fairly old evidence, suggests decision on a proper basis.” Complaints MIL Response at 6. Finally, UNM asserts that all the complaints Dr. Rivero seeks to exclude are relevant to his unprofessionalism in his practice of medicine and to his lack of contrition. See Complaints MIL Response at 6-7. According to UNM, for the evidence to mislead the jury or confuse the issues, it would have to be tangentially related to the facts at issue, which UNM asserts is not the case here. See Complaints MIL Response at 7 (citing SEC v. Goldstone, 233 F.Supp.3d at 1168). UNM thus requests that the Court not exclude the older complaints. See Complaints MIL Response at 7.

         11. The Complaints MIL Reply.

         Dr. Rivero replied. See Reply in Support of Motion in Limine to Exclude Complaints Against Plaintiff Prior to 2006 at 1, filed February 7, 2018 (Doc. 174)(“Complaints MIL Reply”). Dr. Rivero asserts that the Complaints MIL Response “fails to provide any persuasive reason why complaints dating back to 1993 against Dr. Rivero should not be excluded as evidence at trial.” Complaints MIL Reply at 1. According to Dr. Rivero, the Complaints Email provides a list of complaints which Dr. Bailey did not investigate and which are unsubstantiated, thus never finding him at fault, tempering any of “UNM's so-called ‘genuine concern' about the complaints.” Complaints MIL Reply at 2 (quoting Complaints MIL Response at 3). Dr. Rivero asserts that the complaints from 2003 are “dubious” and, “as unsubstantiated complaints, are themselves prejudicial.” Complaints MIL Reply at 2. Dr. Rivero argues that the probative values of the complaints dating to 1993 “is questionable, especially in light of the admitted ‘mov[ing] beyond these early difficulties.'” Complaints MIL Reply at 2 (quoting UNM's MSJ ¶ 6, at 4). Dr. Rivero states that “UNM must pick a position: either Dr. Rivero's conduct improved or it did not, ” and that his conduct as a physician did not include only complaints, but promotions “with glowing recommendations from colleagues.” Complaints MIL Reply at 2 (citing Rivero's MSJ ¶ 2, at 2).

         According to Dr. Rivero, because UNM states that Dr Rivero's conduct improved, it is judicially estopped from asserting the opposite, and, therefore, “at the very least, any and all complaints prior to 2003 are precluded from introduction.” Complaints MIL Reply at 3. Further, Dr. Rivero posits that, because his “promotion to full professor in 2005 was unencumbered by any complaints, and Dr. Rivero was never [a] recipient of any discipline at any time, the uninvestigated and unsubstantiated complaints prior to 2006 should be excluded.” Complaints MIL Reply at 3. Dr. Rivero asserts that these complaints have a “frail probative value” and “will serve to merely prejudice the jury against Dr. Rivero.” Complaints MIL Reply at 3. Dr. Rivero contends that UNM is preposterous in asserting that he tried to behave until his position was more secure and notes that there is no evidence supporting this assertion. See Complaints MIL Reply at 3. Dr. Rivero posits that this assertion is “aimed at merely painting Dr. Rivero in a negative light as a habitual, deceitful, career-long problem, and to prejudice the jury against him.” Complaints MIL Reply at 4. Dr. Rivero argues that it is more likely that he was never unprofessional and that UNM is exaggerating to defend its psychiatric evaluation requirement. See Complaints MIL Reply at 3. Finally, Dr. Rivero notes that UNM referenced no policy when it imposed the Addendum, so its argument regarding professionalism polices is merely “lip service.” Complaints MIL Reply at 4 (citing Schenck Depo. 191 at 175:11-24).

         12. The Psychological MIL.

         Dr. Rivero filed the Psychological MIL on December 8, 2017. See Psychological MIL at 1. Dr. Rivero requests that the Court prohibit UNM from using the term “psychological” instead of the term “psychiatric” at trial to describe the Addendum's medical examination requirement, because he anticipates that UNM will attempt to use the term “psychological, ” which “is misleading and falsely attempts to mollify the harsh and overreaching attempt by UNM[] to force an invasive medical examination on Dr. Rivero as a condition of increased full-time equivalent (‘FTE') in employment.” Psychological MIL at 1. Dr. Rivero posits that, central to the conditions of his return to a 0.75 FTE or higher employment with UNM is the Addendum's “four-part ‘psychiatric evaluation'” requirement. Psychological MIL at 2 (quoting Addendum ¶ 2, at 2). Dr. Rivero asserts that, in repeatedly referring to this requirement as a “psychological examination, ” UNM is “attempt[ing] to redefine that type of examination that [it] sought to impose on Dr. Rivero.” Psychological MIL at 2 (citing Joint Status Report at 7-8). Dr. Rivero notes that the Addendum uses the word “psychiatric” fifteen times in paragraph 2, but never uses the word “psychological.” Psychological MIL at 4.

         Dr. Rivero argues that, with respect to the Addendum's requirement, “a ‘psychiatric' evaluation can only be performed by a duly licensed medical doctor (M.D.) or doctor of osteopathy (D.O.) specializing in the field of psychiatry with the corresponding ability [to] prescribe drugs and other psychiatric interventions.” Psychological MIL at 4. According to Dr. Rivero, “[a] ‘psychological' evaluation, on the other hand, may be performed by individuals without the extent of medical training and experience of duly licensed M.D.s or D.O.s.” Psychological MIL at 4. Dr. Rivero contends that “the term ‘psychiatric' has a more serious connotation, ” because “[i]t implies a heightened level of urgency and severity, one that gives rise to an implication (and rightly so) of medical intervention.” Psychological MIL at 4. Dr. Rivero asserts that the term “‘psychological,' however, implies a softer and less severe approach.” Psychological MIL at 4-5. As UNM is a hospital, Dr. Rivero argues that the difference in terms “would not be lost on the Addendum's drafters, and Defendant has no defense of an honest mistake.” Psychological MIL at 5. Dr. Rivero requests that the Court preclude use of the word “psychological” in reference to the Addendum's requirements, as he asserts that to allow UNM to use this word would “confuse and mislead [the jury] into believing that words do not actually say what they say.” Psychological MIL at 5.

         13. The Psychological MIL Response.

         UNM responded on January 12, 2018. See Defendant University of New Mexico Board of Regents' Response Brief in Opposition to Plaintiff's Motion in Limine to Prohibit and Exclude Use of the Term “Psychological” in Reference to “Psychiatric” Evaluations at 1, filed January 12, 2018 (Doc. 157)(“Psychological MIL Response”). UNM asserts that its use of the term “psychological” to refer to the evaluation requirement at trial is appropriate, because “the connotation of the term ‘psychological' is more relevant to UNM's defense, that Plaintiff was not regarded as disabled, and is a more accurate description of UNM's intentions when it required Plaintiff to submit to the evaluations at issue as a condition of increased hours of employment.” Psychological MIL Response at 1-2. Further, UNM argues that “psychiatry and psychology are, in actuality, very similar, ” with the main difference being that psychiatrists can prescribe drugs. Psychological MIL Response at 2. UNM also notes an internet source which states that, while psychiatrists are members of a medical specialty, they “have more in common with clinical psychologists than with other physicians.” Psychological MIL Response at 2 (internal quotation marks omitted)(quoting Clinical Psychology, Encyclopedia.com at 1 (dated 2008), filed January 12, 2018 (Doc. 157-1)). UNM contends that the Addendum does not “indicate[] that UNM believed that Plaintiff needed drugs.” Psychological MIL Response at 2-3. UNM argues that it “can be forgiven for using imprecise language in the Addendum, ” because the two professions are similar with almost interchangeable terminology, and “well settled precedent stat[es] that ‘the use (or misuse) of mental health terminology' generally does not establish that the employer in question believed that the employee suffered from an impairment.” Psychological MIL Response at 3 (quoting Lanman v. Johnson Cty., 393 F.3d at 1157).

         UNM then argues that, while the meanings of the terms “psychology” and “psychiatric” are similar, “the connotations are different enough that UNM should be allowed to use the term ‘psychological' rather than ‘psychiatric.'” Psychological MIL Response at 3. UNM posits that the connotation around “psychological” is more natural, while “psychiatric” implies a severe mental impairment. Psychological MIL Response at 3. UNM states that, because it wants to show it did not regard Dr. Rivero as being impaired and merely wanted to correct his unprofessional behavior, using “psychological” to describe the evaluation requirement is relevant to UNM's defense to the constructive discharge claim. See Psychological MIL Response at 3.

         Finally, UNM contends that “the probative value of the use of the term ‘psychological' is not substantially outweighed by any danger of unfair prejudice.” Psychological MIL Response at 3. UNM notes the Court's decision in SEC v. Goldstone that evidence is unfairly prejudicial where it tends “to suggest decision on an improper basis.” Psychological MIL Response at 4 (quoting SEC v. Goldstone, 233 F.Supp.3d at 1166). UNM contends that “the term ‘psychiatric' . . . is more likely to trigger an emotional response among fact-finders” than the term “psychological, ” so UNM's use of “psychological” “should not be excluded on the grounds of prejudice.” Psychological MIL Response at 4.

         14. The Psychological MIL Reply.

         Dr. Rivero replies. See Reply in Support of Motion in Limine to Prohibit and Exclude Use of the Term “Psychological” in Reference to “Psychiatric” Evaluations at 1, filed February 7, 2018 (Doc. 173)(“Psychological MIL Reply”). Dr. Rivero first posits that the Psychological MIL Response “provides no genuine, persuasive reason to permit [UNM] to use the term ‘psychological' in reference to the illegal medical evaluations” and actually “support[s] Dr. Rivero's motion to exclude its use as unfairly prejudicial.” Psychological MIL Reply at 1. Dr. Rivero asks the Court to find as an admission UNM's request to use the term “psychological” rather than “psychiatric, ” because the term “‘psychiatric' implies a ‘severe mental impairment.'” Psychological MIL Reply at 2 (quoting Psychological MIL Response at 3). See id. at 2 n.1 (contending that “[t]his knowing implication indicates the overbreadth and illegality of the Addendum”). Dr. Rivero asserts that any prejudice to UNM by using the term “psychiatric” is “wrought by its own words, ” because “[t]he Addendum says what it says --‘psychiatric evaluations' -- and Defendant should not be able to introduce a softer term merely because it regrets how it drafted the document.” Psychological MIL Reply at 2 (quoting Addendum ¶ 2, at 2). Dr. Rivero asserts that UNM is attempting to mitigate the emotions from “the implication of the word that UNM chose to employ.” Psychological MIL Reply at 3.

         Dr. Rivero notes that UNM only brought up the impreciseness of the Addendum's language in its Psychological MIL Response. See Psychological MIL Reply at 4. According to Dr. Rivero, this argument is “meritless given UNM's position as a singularly sophisticated institution.” Psychological MIL Reply at 3. Further, Dr. Rivero notes the Addendum's signatures, ostensibly showing that a team of licensed attorneys, physicians, and medical professionals drafted the Addendum. See Psychological MIL Reply at 4 (citing Addendum at 6). Accordingly, Dr. Rivero asserts that Lanman v. Johnson County is distinguishable, because the misuse of language there “was the informal bandying of dubiously good-natured jibes” and “not the formalized contractual language” here. Psychological MIL Reply at 4 (citing Lanman v. Johnson Cty., 393 F.3d at 1157).

         As to UNM's assertion that the term “psychological” is useful to its defense, Dr. Rivero asserts that UNM is, in effect, “ask[ing] the Court to permit it to create facts out of thin air to suit its defense and to evade the liability that comes with the facts that actually do exist.” Psychological MIL Reply at 4 (emphasis in Psychological MIL Reply). Dr. Rivero discards UNM's assertion that psychiatry and psychology are similar medically, because UNM bases this assertion on “a general online reference.” Psychological MIL Reply at 4. Dr. Rivero posits that UNM makes this assertion to excuse the Addendum's sloppy language, but that “a review of the Addendum on its face betrays the rigor, severity, and precision with which its language was chosen.” Psychological MIL Reply at 5. See id. at 4. Finally, Dr. Rivero argues that he “will be unfairly prejudiced by UNM's use of the term ‘psychological' because it is not a word that is present anywhere on the Addendum and unduly mitigates the actual severity of the face of the Addendum and the intent of UNM to impose an illegal medical inquiry upon him.” Psychological MIL Reply at 5.

         15. The Second Disclosure Letter.

         On June 22, 2018, the Court sent another disclosure letter to the parties.[96] See Letter from the Court to Eric D. Norvell, Alfred A. Park, and Lawrence M. Marcus (dated June 22, 2018), filed June 22, 2018 (Doc. 200)(“Second Disclosure Letter”). The Second Disclosure Letter's body states in full:

I want to bring one matter to your attention. I have, with my law clerks, reviewed the Judicial Code of Conduct and do not believe this matter requires me to recuse myself. I want everyone, however, to be fully informed about and comfortable with my participation in the case.
Last fall, and in several prior years, I have co-taught a 2-unit course on religious liberty at the University of New Mexico School of Law. I think this is the fifth time I have taught the class. I have waived pay on three occasions. I am uncertain how the University of New Mexico School of Law has treated that waiver, but it may have considered it a donation to the school or the UNM Foundation. The last two times I taught the class, I have asked the University of New Mexico School of Law to use the money to pay a law student to help me with a law review article that I am writing, and it has complied with that request. In light of my role in teaching this class at the University of New Mexico School of Law, I believe I can remain fair and impartial to all parties in this case.
I have also known different University of New Mexico Regents over the years. As to people who have served as Regents since this case was filed on November 1, 2017, to the present, I know Robert M. Doughty III, President. He is a lawyer, and a few years ago (before this case was filed), he and his wife attended a dinner party at our home. I have not been in his home, and I do not otherwise socialize with him. It has been a while since I saw him. I do not have a substantially different relationship with him than I do with other members of the bar. I think I can remain fair and impartial to all parties.
Garrett Adcock is a student at the University of New Mexico School of Law. He previously externed for me.[97] I have not seen him recently. He invited me by mail to his graduation, which I attended, but I was planning to go anyway. I do not believe I saw him or got to speak with him. Again, I believe that I can be fair and impartial to all parties.
I might have met Michael Brasher at a lunch before I became judge; I became a judge in 2003. I do not otherwise socialize with Mr. Brasher. Again, I believe that I can be fair and impartial to all parties.
If regents before November 1, 2017, are relevant to this issue, I would be glad to make disclosures regarding them. I believe, however, that I can remain fair and impartial to all parties.
I believe that I can be fair and impartial. I see no reason to recuse myself. If, however, anyone has any questions or concerns, call my Courtroom Deputy Clerk, Carol Bevel (505-348-2289) and we can have a telephonic hearing. I have instructed Ms. Bevel not to tell me who calls.

Second Disclosure Letter at 1-2.

         Nobody called Ms. Bevel about the Second Disclosure Letter. Further, Ms. Bevel made courtesy calls to counsel for both parties on June 25, 2018, to ensure they had received the Second Disclosure Letter and to ask if they had any objections. Neither party raised any objections. Ms. Bevel recalls talking to Dr. Rivero's counsel, who informed her that he had talked to his client and that Dr. Rivero did not have any objection to the Court's presiding over the case.

         16. The June 26 Hearing.

         On June 26, 2018, the Court held a hearing on UNM's MSJ, Rivero's MSJ, the Complaints MIL, and the Psychological MIL. See Clerk's Minutes at 1, filed June 26, 2018 (Doc. 201)(“Clerk's Minutes”). The parties also discussed pretrial conference and trial settings. See Transcript of Motion Proceedings at 76:15-16 (Court)(taken June 26, 2018), filed July 17, 2018 (Doc. 202)(“June 26 Tr.”). This was the first time the parties appeared before the Court. See June 26 Tr. at 77:11-13 (Court).

         a. Broad Argument Regarding UNM's MSJ.

         The hearing began with argument on UNM's MSJ. See June 26 Tr. at 3:1-2 (Court). UNM admitted that Dr. Rivero is “a technically proficient surgeon, but [noted that] he had . . . some serious issues with his professionalism and his interaction with patients, nurses, and other members of the medical staff.” June 26 Tr. at 3:12-16 (Marcus). UNM contended that Dr. Rivero moved to Oklahoma and maintained a 0.05 FTE at UNM when these professionalism issues became more severe. See June 26 Tr. at 3:17-24 (Marcus). UNM stated that, when Dr. Rivero wanted to return to full-time employment with UNM, his “professionalism became a much bigger problem” and caused “many members of the UNM medical staff to have serious reservations about allowing him to come back full-time.” June 26 Tr. at 4:2-3, 8-10 (Marcus). UNM said that Dr. Schenck and Dr. Rivero reached a compromise to address the professionalism issues and allow Dr. Rivero to return full time -- Dr. Rivero would attend four counseling sessions, and so Dr. Rivero contacted a UNM psychiatrist. See June 26 Tr. at 4:13-23 (Marcus). UNM argued that the Addendum memorializes this compromise, see June 26 Tr. at 4:23-25 (Marcus), but that Dr. Rivero refused to sign the Addendum, because he believed its psychiatric evaluation requirement was an illegal medical inquiry, see June 26 Tr. at 5:3-4 (Marcus). UNM contended that, to prove this illegality, Dr. Rivero attempted to get his records while still working at UNM for three years and then, only after receiving all his records, did Dr. Rivero quit and claim constructive discharge, “despite the fact that he had been working at UNM for three years with no problems.” June 26 Tr. at 5:13-14 (Marcus). See id. at 5:6-14 (Marcus).

         UNM then turned to the deficiencies in Dr. Rivero's lawsuit, first arguing that his claim for an illegal medical inquiry “is barred by the statute of limitations[, ] because he received the [A]ddendum . . . in 2011, and [he] did not bring the litigation until 2016.” June 26 Tr. at 6:8-9, 11-12 (Marcus). Further, UNM asserted that the medical inquiry “was job related and consistent with business necessity, ” because it “was an attempt to have plaintiff resolve his issues with professionalism, ” and therefore not illegal. June 26 Tr. at 6:15-19 (Marcus). As to Dr. Rivero's claim of constructive discharge, UNM maintained that it never regarded Dr. Rivero as disabled, which is “a prerequisite for any claim for constructive discharge under the Rehabilitation Act.” June 26 Tr. at 6:22-24 (Marcus). See id. at 6:20-22 (Marcus). UNM also argued that Dr. Rivero “was never constructively discharged, ” because “there was no harassment of any sort, ” “[h]is work continued to be valued, ” and “no one ever gave him any problems.” June 26 Tr. at 7:5-10 (Marcus). UNM thus asserted that his working conditions were not so intolerable that he could not bear to attend work anymore. See June 26 Tr. at 7:10-14 (Marcus).

         In response, Dr. Rivero contended that “his relationships with colleagues and his work was unparalleled as a physician, ” that he was “one of the best [orthopaedic surgeons] in the southwest, ” and so clearly he was not “a problem physician” as UNM contends. June 26 Tr. at 8:3, 6-10 (Norvell).[98] Dr. Rivero asserted that he presented the Court reliable evidence “that he was not, in fact, suffering from professionalism issues.” June 26 Tr. at 8:13-15 (Norvell). Dr. Rivero maintained that his agreement with Dr. Schenck to attend four counseling sessions “was starkly different from” the Addendum, which required psychiatric evaluations. June 26 Tr. at 8:25-9:1 (Norvell). See id. at 8:19-9:2 (Norvell). Dr. Rivero noted UNM's contention in the Psychological MIL Response that the term “psychiatric” “indicate[s] a severe mental impairment.” June 26 Tr. at 9:4 (Norvell). See id. at 9:1-4 (Norvell). Dr. Rivero asserted that the Addendum shocked him, because “it was so broad and so invasive and without any limitation, ” June 26 Tr. at 9:14 (Norvell), and because “[i]t was not tailored toward any aspect of counseling that the parties had agreed upon . . . to improve patient interactions, ” June 26 Tr. at 9:7-9 (Norvell). See id. at 9:5-19 (Norvell). Dr. Rivero maintained that he sought to review his credentialing file to determine the basis for the Addendum's onerous requirements. See June 26 Tr. at 9:20-24 (Norvell). Dr. Rivero asserted that, as a result, UNM precluded his efforts to review his file, Dr. Schenck withdrew the Addendum, and Dr. Rivero had to file an action in state court to access his file. See June 26 Tr. at 9:25-10:8 (Norvell). Dr. Rivero argued that, when Dr. Trotter and Dr. Bailey certified that all documents had been produced, Dr. Rivero realized that UNM had no basis for the Addendum's requirement and his claim for the illegal medical inquiry accrued. See June 26 Tr. at 10:9-17 (Norvell). Dr. Rivero stated that “[h]e left UNM in January, never returned, and tendered his formal resignation, constructive discharge in May of 2014.” June 26 Tr. at 18-20 (Norvell). Dr. Rivero asserted that “[n]othing has changed” since Magistrate Judge Lynch determined that his claims were timely filed, so law of the case requires that Magistrate Judge Lynch's holding stand. June 26 Tr. at 11:1 (Norvell). See id. at 10:22-11:7 (Norvell).

         Dr. Rivero argued that “there is a question of fact as to” whether UNM regarded him as disabled, and that the Addendum's overbreadth precludes the examination from being a proper “fitness for duty” examination. June 26 Tr. at 11:17, 22-23 (Norvell). See id. at 11:16-24 (Norvell). Further, Dr. Rivero noted Dr. Schenck's statements “that stress was a consideration” and “that Dr. Rivero's reaction to stress was a disabling condition that would make it more difficult for him to succeed in returning to UNM.” June 26 Tr. at 7-11 (Norvell). As to unbearable working conditions, Dr. Rivero maintained that they began with a dispute with Dr. Pitcher in 2003 and continued, because of “administrative vendettas” and Dr. Schenck's flip-flopping in advocating for Dr. Rivero. June 26 Tr. at 13:4-5 (Norvell). See id. at 12:23-13:8 (Norvell). Dr. Rivero stated that UNM's withholding of his file and “frivolous defenses submitted in litigation” also added to the unbearable working conditions. June 26 Tr. at 13:10 (Norvell). See id. at 13:9-14 (Norvell). Dr. Rivero asserted that the facts regarding his professionalism issues are in dispute and not clear, because UNM provides unsubstantiated, uninvestigated complaints to support the Addendum's requirements. See June 26 Tr. at 17:5-18 (Norvell). Dr. Rivero also noted that “there is really no clarity as to what professionalism means.” June 26 Tr. at 18:19-20 (Norvell). Dr. Rivero argued that “there are questions of fact as to whether UNM regarded Dr. Rivero as disabled, ” facts which the jury should determine. June 26 Tr. at 18:3-4 (Norvell). See id. at 18:2-18 (Norvell). Dr. Rivero maintained that “UNM can present no evidence that [it] ever did, in fact, find any deterioration of his essential job duties, ” and that “it's a question of fact whether the professionalism claim constitutes an essential job function.” June 26 Tr. at 19:4-6, 7-9 (Norvell). Dr. Rivero argued that “the facts of the extent of the overbreadth of the [A]ddendum is something that is certainly preserved for trial, because . . . of the legal requirement that it be more narrow to befit the particulars of an approach to . . . improve professionalism.” June 26 Tr. at 19:11-19 (Norvell). As to the “issue of fact that precludes the Court from deciding the legal issues that are in” UNM's MSJ, June 26 Tr. at 20:8-9 (Court), Dr. Rivero responded that UNM took complaints “at face value, ” June 26 Tr. at 21:3 (Norvell), so “how can there be a truly sensible determination of unprofessional action, if all the complaints that were made were unsubstantiated?” June 26 Tr. at 21:5-8 (Norvell).

         b. Argument Regarding the Illegal-Medical-Inquiry Claim.

         UNM then underscored its statute-of-limitations argument for the alleged illegal medical inquiry, noting that Dr. Rivero received the Addendum in March, 2011, and that Dr. Rivero “testified at his deposition that at about that time he believed very strongly that his rights were violated.” June 26 Tr. at 22:4-6 (Marcus). See id. at 21:25-22:6 (Marcus). UNM argued that, at that time, Dr. Rivero “had a complete and present cause of action, ” June 26 Tr. at 22:7-8 (Marcus), because “[h]e had everything needed to file the complaint regarding the allegedly medical inquiry, ” June 26 Tr. at 22:10-12 (Marcus). Yet, UNM stated, Dr. Rivero “did not file the complaint for the illegal medical inquiry until 2016, . . . more than five years after he received the [A]ddendum.” June 26 Tr. at 22:13-16 (Marcus). UNM maintained that Baker v. Board of Regents of the State of Kansas and other cases make clear that “the cause of action accrues when the action takes place.” June 26 Tr. at 22:18-19 (Marcus). See id. at 22:16-19 (Marcus). UNM asserted that, contrary to Magistrate Judge Lynch's ruling, Dr. Rivero did not need his entire credentialing file for the cause of action to accrue. See June 26 Tr. at 23:15-18 (Marcus). UNM posited that Magistrate Judge Lynch made an error in holding that Dr. Rivero did not have a complete and present cause of action until he received his full employment file, and that this error should be fixed. See June 26 Tr. at 24:16-25 (Marcus). UNM maintained that the Court can revisit Magistrate Judge Lynch's decision, and that Dr. Rivero “has misinterpreted the Law of the Case Doctrine.” June 26 Tr. at 23:25 (Marcus). See id. at 23:19-23 (Marcus).

         In response, Dr. Rivero argued that Magistrate Judge Lynch considered the statute-of-limitation arguments which UNM makes in the MTD Order, that discovery produced no new facts to change Magistrate Judge Lynch's decision, and that Green v. Brennan clearly supports this decision. See June 26 Tr. at 25:25-26:14 (Norvell). According to Dr. Rivero, the facts have not changed, because discovery has confirmed what Magistrate Judge Lynch assumed as true. See June 26 Tr. at 26:24-27:2 (Norvell). Dr. Rivero argued that, as Magistrate Judge Lynch determined, “Dr. Rivero did not have a complete picture of the reason for the [A]ddendum” until UNM certified that it produced his entire record, June 26 Tr. at 27:2-4 (Norvell), and although he “may have believed there was a cause of action [earlier], he did not know, ” June 26 Tr. at 27:10-11 (Norvell). See June 26 Tr. at 27:2-13 (Norvell). The Court questioned why the trigger for the statute of limitations did not occur much earlier when the harm occurred with the Addendum's presentment. See June 26 Tr. at 27:14-25 (Court). Dr. Rivero responded that the credentialing file which he sought would contain the basis for the Addendum and that, when he sought it, UNM refused access and precluded him from determining this basis. See June 26 Tr. at 28:1-18 (Norvell). Dr. Rivero contended that these documents confirmed a factual basis “that there was no underlying rationale behind presenting the psychiatric examination.” June 26 Tr. at 29:1-3 (Norvell). See id. at 28:19-29:3 (Norvell).

         UNM responded that Dr. Rivero “could have filed suit back in 2011, or early 2012 . . . [a]nd then he could have engaged in discovery to get his file.” June 26 Tr. at 30:3-5 (Marcus). UNM asserted that plaintiffs file suits “upon information and belief” “all the time.” June 26 Tr. at 30:24, 31:1 (Marcus). UNM maintained that all Dr. Rivero needed to bring suit was the belief “that his rights were violated” and noted that he had such a belief when he received the Addendum. June 26 Tr. at 31:12-13 (Marcus). See id. at 31:9-14 (Marcus). UNM asserted that it did nothing to prevent Dr. Rivero “from bringing the litigation within the three year statute of limitation[, a]nd, therefore, there is no tolling.” June 26 Tr. at 31:15-17 (Marcus).

         As to the merits of Dr. Rivero's illegal medical inquiry claim, UNM argued that “the medical inquiry was clearly job related and consistent with business necessity, ” and, therefore, legal. June 26 Tr. at 32:22-23 (Marcus). See id. at 32:18-23 (Marcus). UNM asserted that Lanman v. Johnson County stands for the proposition that “singling out a person for a psychiatric evaluation does not necessarily mean that the employer deems the person or regards the person as disabled, ” June 26 Tr. at 34:11-14 (Marcus), and allows employers to determine the cause of an employee's troubling behavior, especially where the employee cares for others, see June 26 Tr. at 35:1-5. UNM posited that physicians are “responsible for the care and safety of others, ” so an employer may single out a physician whose behavior is troubling without it meaning the physician suffers from a psychiatric disorder. June 26 Tr. at 35:6-7 (Marcus). See id. at 35:5-12 (Marcus). UNM noted that all the complaints filed against Dr. Rivero, although there may not be proof for each complaint, in the aggregate paints a “troubling picture.” June 26 Tr. at 35:25 (Marcus). See id. at 35:15-36:20 (Marcus). UNM asserted that “a patient did come away from [an] interaction with Dr. Rivero thinking that he was being compared with a monkey. Whether that was Dr. Rivero's intention or not, ” June 26 Tr. at 36:21-24 (Marcus), that statement shows Dr. Rivero “really needs to work on his skills with interacting with his patients, ” June 26 Tr. at 37:2-3 (Marcus). Further, UNM maintained that, “in more recent years, medical accreditation organizations have added a renewed focus on professionalism.” June 26 Tr. at 37:11-13 (Marcus). Accordingly, UNM asserted that the Addendum's requirement “was clearly job related, consistent with business necessity, consistent with UNM's continued accreditation, frankly, ” because UNM “couldn't bring [Dr. Rivero] back if he continued to act” unprofessionally. June 26 Tr. at 38:1-5 (Marcus).

         Dr. Rivero responded that the evidence does not support UNM's assertion that Dr. Rivero's professionalism issues warranted the imposition of four psychiatric evaluations, because the complaints were unsubstantiated or because Dr. Rivero was not found at fault. See June 26 Tr. at 38:11-39:13 (Norvell). As to his interactions with Barela, Dr. Rivero argued that “[h]e had to defend his reputation and his position, ” because there was no physician advocate to do so. June 26 Tr. at 39:17-18 (Norvell). See id. at 39:14-18 (Norvell). Also, as to the patient who believed Dr. Rivero likened him to a monkey, Dr. Rivero contended that “a resident on duty signed a letter that said there was no unprofessionalism on Dr. Rivero's part.” June 26 Tr. at 40:8-10 (Norvell). Dr. Rivero further argued that, for the examination requirement to be proper, “there has to be a particularized approach, we call it possibly narrowly tailored approach, and a showing that Dr. Rivero was unable to perform his essential job functions.” June 26 Tr. at 39:21-24 (Norvell). Dr. Rivero asserted that UNM has made no showing that he was unable to perform essential job functions or that UNM's accreditation with JCAHO was jeopardized. See June 26 Tr. at 39:24-40:2 (Norvell). Accordingly, Dr. Rivero argued that the Addendum is “oppressive” and “not designed to address the so-called issues of professionalism that UNM is here stating that it is meant to.” June 26 Tr. at 40:19-22 (Norvell). Dr. Rivero maintained that he never presented a violent threat, and operated without complaint both in Oklahoma and at UNM from 2006 until 2014, so there is no basis to single out him with the illegal, oppressive Addendum requirements. See June 26 Tr. at 41:4-19 (Norvell). Dr. Rivero asked the Court where the line is with respect to mental examinations, because it is not good policy to allow “any sort of mental examination, no matter how invasive or onerous, to force employees to submit to whatever employment practices they have.” June 26 Tr. at 42:8-11 (Norvell). See id. at 42:4-12 (Norvell).

         The Court questioned whether the Albuquerque Police Department (“APD”) could require an officer, who received a number of citizen complaints, to undergo psychological testing four times a year without regarding that officer as disabled. See June 26 Tr. at 42:17-43:4 (Court). Dr. Rivero responded that officers, like physicians, interact with many people on a yearly basis, but underscored that “[i]t would behoove and be incumbent upon APD to investigate the veracity of those complaints before presuming that someone is necessarily ripe for some fitness for duty exam, much less some psychiatric examination.” June 26 Tr. at 43:14-18 (Norvell). The Court clarified that, based on Dr. Rivero's response, “there is nothing wrong, per se, with picking out one police officer and somehow getting to the point of requiring that one police officer to be examined -- psychological examination three or four times a year.” June 26 Tr. at 44:9-13 (Court). Dr. Rivero did not want to “agree with the term ‘single one out, '” because, in his view, “there would have to be a real legal basis” for the requirement. June 26 Tr. at 44:17-19 (Norvell). The Court asked what the test would be, see June 26 Tr. at 44:21-23 (Court), and Dr. Rivero responded that he “believe[s] it would be a threat to the public, as police officers are servants of the public and interact with the public, and wield some level of real authority and power, ” June 26 Tr. at 44:25-45:3 (Norvell), or a “showing that the essential job functions are not being met, ” June 26 Tr. at 45:10-11 (Norvell). The Court then asked what the standard is for a physician, and for judging “whether a condition that's being imposed is job related and consistent with the job.” June 26 Tr. at 45:24-25 (Court). See id. at 45:22-25 (Court). Dr. Rivero stated that “[t]he standard is whether Dr. Rivero has shown indications of the inability to perform essential job functions or presents a direct threat, ” June 26 Tr. at 46:1-4 (Norvell), and asserted that UNM has not shown evidence of either problem, see June 26 Tr. at 46:11-15 (Norvell).

         UNM provided the last word on the psychiatric examination requirement, arguing that it is clear that Dr. Rivero's “professionalism was an impediment to his performing part of his job duties . . . . [H]e was refusing to see patients in the general ortho clinic[, a]nd then he said he wasn't going to speak Spanish to them.” June 26 Tr. at 47:14-18 (Marcus). UNM posited that Dr. Rivero is fluent in Spanish and that his refusal to speak the language is not good for UNM's standing with the United States Department of Health and Human Services' Office for Civil Rights when UNM is accused of not providing translators. See June 26 Tr. at 47:19-23 (Marcus). UNM asserted that the JCAHO put down its foot and did not want physicians to get away with being difficult any longer, so, to keep its accreditation, UNM had to do something with Dr. Rivero. See June 26 Tr. at 47:24-48:11 (Marcus). Regarding Dr. Rivero's interactions with Barela, UNM argued that Dr. Rivero “threatened Mr. Barela's livelihood” and “overreacted, ” because “[h]e gets one complaint from the general ortho clinic” and says he will not talk to those patients anymore. June 26 Tr. at 48:17-18, 21-22 (Marcus). See id. at 48:17-25 (Marcus). UNM contended that Dr. Rivero is an excellent surgeon, but underscored the importance of being able to professionally interact with patients and staff. See June 26 Tr. at 49:2-15 (Marcus). UNM maintained that the emails which Dr. Rivero sent Barela are undisputed and that, instead of trying to clear up the patients' complaints, Dr. Rivero blames the messenger. See June 26 Tr. at 49:16-50:1 (Marcus). UNM noted that, in Lanman v. Johnson County, the employee did not behave in a threatening manner, but merely acted “in a weird manner” and the employer required a fitness for duty exam. June 26 Tr. at 50:7 (Marcus). See id. at 50:2-13 (Marcus). UNM also noted that, in Owusu-Ansah v. Coca-Cola Co., the employee “banged his hand on a table and said someone was going to pay, ” but he had no prior incidents showing a propensity for violence, and he had to complete a fitness for duty examination. June 26 Tr. at 50:17-18 (Marcus). See id. at 50:14-25 (Marcus). UNM asserted that this case is worse than Lanman v. Johnson County or Owusu-Ansah v. Coca-Cola Co., because “you have a surgeon responsible for people's lives showing this type of difficulty with his interactions, ” June 26 Tr. at 51:1-3 (Marcus), who “has a whole history of making things difficult, of having problems with his professional interactions, ” June 26 Tr. at 51:14-16 (Marcus). See June 26 Tr. at 51:1-16 (Marcus). UNM conceded that it did not receive any complaints about Dr. Rivero after 2006, but noted that this absence is not surprising and is irrelevant, because, at that point, Dr. Rivero was working at UNM only one day a month, so he was “not really interacting much with conscious patients, ” but rather “performing surgery, . . . assisting other surgeons with the surgeries, or . . . working on patients with whom [he] ha[d] a preexisting relationship.” June 26 Tr. at 51:25-52:4 (Marcus). See id. at 51:17-52:8 (Marcus). Finally, UNM posited that, if Dr. Rivero believed that he was acting professionally, it did not make sense that he agreed to four counseling sessions or contacted a psychiatrist to set up the sessions. See June 26 Tr. at 52:9-13 (Marcus).

         c. Argument Regarding the Merits of the Constructive Discharge Claim.

         The parties then turned to the constructive discharge issue, with UNM arguing that this claim “is completely without merit.” June 26 Tr. at 52:19 (Marcus). UNM asserted that the first prong of a constructive discharge claim requires “either a disability or a perception of disability, ” June 26 Tr. at 53:1 (Marcus), and that there is no evidence that Dr. Rivero has a disability, or “that UNM perceived him or regarded him as having a disability, ” June 26 Tr. at 53:4-5 (Marcus). See id. at 52:25-53:5 (Marcus). UNM noted that it renewed Dr. Rivero's privileges each year, “with a statement saying that he does not have a disability.” June 26 Tr. at 53:6-7 (Marcus). UNM contended that its evaluation requirement does not imply that it regarded Dr. Rivero as disabled; rather, there must be “something corroborating to indicate that UNM perceived him to have a disability.” June 26 Tr. at 53:13-14 (Marcus). See id. at 53:8-14 (Marcus). Further, UNM argued that Dr. Schenck's compromise that Dr. Rivero did not need to be on call does not mean Dr. Schenck regarded him as disabled. See June 26 Tr. at 53:15-21 (Marcus). UNM posited that Dr. Schenck was trying to help Dr. Rivero, because they were friends, and Dr. Schenck was attempting to find a way to bring Dr. Rivero back full-time while avoiding his professionalism issues. See June 26 Tr. at 54:8-17 (Marcus). UNM noted that Dr. Rivero cited his personality conflict with Dr. Pitcher as causing tension at work, which UNM argued “does not indicate constructive discharge.” June 26 Tr. at 55:10-11 (citing Turnwall v. Tr. Co. of Am., 146 Fed.Appx. 983 (10th Cir. 2005)(unpublished)). See id. at 55:1-12 (Marcus). Accordingly, UNM contended that Dr. Rivero fails “to produce sufficient evidence to survive summary judgment.” June 26 Tr. at 55:18-19 (Marcus).

         UNM argued that the second prong of constructive discharge requires an action that is “motivated by a perception of disability, ” and that, again, there is no evidence of such an action. June 26 Tr. at 55:22-23 (Marcus). UNM contended that the necessary motivation is lacking in the alleged personality conflict with Dr. Pitcher of which Dr. Rivero complains. See June 26 Tr. at 56:1-5 (Marcus). UNM argued that Dr. Rivero's working conditions were not so bad that “a reasonable person would not want to come in to work, ” so Dr. Rivero was not constructively discharged. June 26 Tr. at 56:10-11 (Marcus). See id. at 56:6-11 (Marcus). UNM also asserted that a constructive discharge claim cannot rest on one discriminatory act, that there must be other aggravating factors, and that Dr. Rivero asserts that there was only one discriminatory act -- the allegedly illegal medical inquiry. See June 26 Tr. at 56:12-25 (Marcus). UNM noted that, after the Addendum, Dr. Rivero worked as usual for three more years with nobody treating him inappropriately until he received all the documents in his credentialing file and, suddenly, in his subjective mind, he believed UNM had no reason for the Addendum, and he felt his working conditions deteriorated. See June 26 Tr. at 57:1-20 (Marcus).

         Dr. Rivero responded that the law does not support UNM's contention that a single discriminatory act does not constitute constructive discharge. See June 26 Tr. at 58:14-24 (Norvell). Dr. Rivero contended that the Addendum is not the only act which created a hostile work environment, but that, in isolation, “it would give rise to a question as to whether that singular act was severe enough to give rise to -- regarded as [disabled] status for Dr. Rivero.” June 26 Tr. at 59:5-7 (Norvell). See id. at 59:3-7 (Norvell). Dr. Rivero argued that, because UNM allows “that the term ‘psychiatric' implies severe mental impairment, ” June 26 Tr. at 59:9-10 (Norvell), the Addendum's requirement of a psychiatric evaluation insinuates that UNM regarded Dr. Rivero as having a severe mental impairment, see June 26 Tr. at 59:11-12 (Norvell). Dr. Rivero asserted that the Addendum's language combined with Dr. Schenck's suggestion to reduce Dr. Rivero's time on call “because stress brought about some disabling factor, ” June 26 Tr. at 59:15-16 (Norvell), creates a question of fact for the jury to determine whether Dr. Schenck perceived Dr. Rivero as disabled because of his reaction to stress, see June 26 Tr. at 59:13-18 (Norvell). Dr. Rivero argued that these aspects combined with Dr. Rivero's conflict with Dr. Pitcher “underpinned an environment of hostility . . . and later gives ground to the perception of Dr. Rivero having potentially being regarded as disabled.” June 26 Tr. at 60:2-3, 5-6 (Norvell). See id. at 59:24-60:6 (Norvell). Dr. Rivero maintained that his “dispute with Dr. Pitcher laid the groundwork” for “[t]he constructive discharge, the unbearable working conditions, . . . [and the] regarded as status of Dr. Rivero as being disabled.” June 26 Tr. at 60:8-13 (Norvell). Dr. Rivero also argued that Dr. Schenck treatment of Dr. Rivero was a “flip-flop, ” because “[h]e went from being his friend to being manipulative, creating a very difficult environment where Dr. Rivero was unable to trust his own supervisor.” June 26 Tr. at 60:16-29 (Norvell). Dr. Rivero also noted that, when he sought access to his credentialing file, Dr. Schenck “withdrew the [A]ddendum, because he felt as though that was an act of aggression, when it was a completely legal act.” June 26 Tr. at 60:23-25 (Norvell). As to UNM's assertion that Dr. Rivero could have filed suit and received the documents, Dr. Rivero noted that he filed suit -- the mandamus action. See June 26 Tr. at 61:3-9 (Norvell). Dr. Rivero posited that, when he received all the documents and determined that UNM had no basis for the Addendum's requirements, he could not “continue to work in an environment like that, where the [A]ddendum -- when he's perceived as being -- possessing a severe mental impairment.” June 26 Tr. at 61:15-18 (Norvell). See id. at 61:10-21 (Norvell).

         UNM responded that Dr. Rivero's “alleged success in Oklahoma is irrelevant, ” because UNM “do[es] not know the details of his career in Oklahoma, ” so UNM is only “considering his behavior and what happened to him in New Mexico.” June 26 Tr. at 62:4-8 (Marcus). UNM asserted that the mandamus action is also irrelevant, because the state court is dealing with how UNM handled the documents, and because Dr. Rivero provides no evidence that this handling was done to get Dr. Rivero to quit. See June 26 Tr. at 62:9-17 (Marcus). UNM argued that Dr. Rivero's counsel is twisting its words, because it stated that Dr. Rivero was not perceived as having a severe mental impairment. See June 26 Tr. at 62:18-22 (Marcus). Further, UNM asserted that there is no evidence that Dr. Schenck was manipulative, and posited that Dr. Schenck revoked the Addendum only after Dr. Rivero “continued to refuse to sign it.” June 26 Tr. at 64:4 (Marcus). See id. at 63:21-64:5 (Marcus). UNM noted that Dr. Rivero continued working at UNM for three years after it revoked the Addendum, more than a reasonable amount of time, so his constructive discharge claim should fail, because precedent counsels that there is no constructive discharge where the employee continued to work for three years after the last alleged act of discrimination. See June 26 Tr. at 64:5-21 (Marcus). UNM argued that a constructive discharge claim cannot wholly rest on one discriminatory act, so again Dr. Rivero's claim must fail, because he “is essentially basing his one claim of constructive discharge on this one act and his subjective interpretation of that act years after the fact, after he received the documents.” June 26 Tr. at 65:4-7 (Marcus). See id. at 65:1-8 (Marcus). UNM conceded that Dr. Rivero stopped coming to work after receiving the documents, but he stayed on the payroll for four months afterward until he tendered his resignation. See June 26 Tr. at 65:9-12 (Marcus). The Court asked whether, by singling out Dr. Rivero and requiring a psychiatric examination, and arguing that the examination is consistent with business necessity and that it is job related, UNM is, in some way, saying that Dr. Rivero is mentally disabled. See June 26 Tr. at 65:18-66:5 (Court). UNM conceded that the psychiatric evaluation requirement shows that it believed Dr. Rivero had a problem, but asserted that “there is a difference between a problem and a problem that limits or substantially limits a major life activity. And that's the standard for disabled.” June 26 Tr. at 66:8-11 (Marcus). See id. at 66:6-11 (Marcus). The Court pressed back: “But isn't that a very fine line to draw, the university saying that this is -- this psychological examination is job related, it's a business necessity, and yet say he's not disabled and it's not impacting or impairing life activities?” June 26 Tr. at 66:12-16 (Court). UNM stated that “[i]t may be a fairly thin line, ” June 26 Tr. at 66:18 (Marcus), but asserted that Dr. Rivero's issue with professionalism does not limit a major life activity, June 26 Tr. at 66:19-25 (Marcus).

         Dr. Rivero responded that his colleagues' testimony disputes UNM's assertion that he acted unprofessionally, because the testimony provides that patients loved Dr. Rivero and continue to request his services. See June 26 Tr. at 67:21-68:10 (Norvell). Dr. Rivero noted that he has never been sued nor been reported to the Medical Board, and that it does not make sense that UNM allowed him to operate if it believed he needed a psychiatric evaluation. See June 26 Tr. at 68:13-20 (Norvell). Dr. Rivero contended that, because the complaints were never investigated, they do not have merit. See June 26 Tr. at 68:21-23 (Norvell). Dr. Rivero noted that, when these complaints supposedly increased immediately before he moved to Oklahoma and reduced his time at UNM to 0.05 FTE, Dr. Schenck and twenty-three of Dr. Rivero's colleagues did not want him to leave. See June 26 Tr. at 68:23-69:8 (Norvell). Dr. Rivero maintained that UNM knew how Dr. Rivero behaved in Oklahoma, because that hospital provided UNM with information regarding his status and credentials every two years, and nothing in those reports support UNM's assertion of unprofessionalism. See June 26 Tr. at 69:9-15 (Norvell). Finally, Dr. Rivero argued that, under Green v. Brennan, there is no longer a two-step process “where a case is filed on discrimination, and then amended to include constructive discharge[;] when constructive discharge is filed the discrimination claim is incorporated[, which] plays into the statute of limitations argument.” June 26 Tr. at 70:2-7 (Norvell).[99]

         The Court asked how Rehabilitation Act claims differ from Title VII claims regarding constructive discharge, and Dr. Rivero responded that the standard is the same, but that Title VII requires exhaustion of administrative remedies. See June 26 Tr. at 70:8-22 (Court, Norvell). The Court questioned how the Addendum alone created an intolerable working environment, especially because Dr. Rivero continued to work. See June 26 Tr. at 71:2-10 (Court). Dr. Rivero contended that there were aggravating circumstances in addition to the Addendum: UNM administrators impeded Dr. Rivero's access to his credentialing file, UNM's continued obstruction through frivolous litigation, and Dr. Schenck accused Dr. Rivero of unprofessional behavior and stated that he believed that stress hindered Dr. Rivero's work. See June 26 Tr. at 71:11-72:2 (Norvell).

         UNM briefly responded to Dr. Rivero's argument, contending that there were a number of unprofessional actions that concerned UNM and that it wanted to determine the cause before it allowed him to return to full-time employment. See June 26 Tr. at 72:10-73:10 (Marcus). UNM asserted that constructive discharge requires a work environment so intolerable that a reasonable person would resign and noted that Dr. Rivero's staying for three years after the Addendum's presentment strains his credibility. See June 26 Tr. at 73:11-15 (Marcus). It also appeared to UNM that Dr. Rivero is attempting to use his constructive discharge claim to get around the statute-of-limitations issue with his illegal medical inquiry claim. See June 26 Tr. at 73:16-24 (Marcus).

         The Court stated its inclination to rule on the legal issues that UNM's MSJ raises, because it believes that the factual issues are largely undisputed. See June 26 Tr. at 74:3-13 (Court). The Court also stated that it would review Magistrate Judge Lynch's decision, as it does not understand why the accrual date for the medical inquiry claim would be the production of Dr. Rivero's credentialing file. See June 26 Tr. at 74:14-24 (Court). The Court had no inclination on the merits of the medical inquiry claim, but did not believe that the events gave rise to a claim for constructive discharge. See June 26 Tr. at 74:25-75:9 (Court).

         d. Discussion on Scheduling.

         The parties then turned to scheduling issues. See June 26 Tr. at 76:15-16 (Court). Dr. Rivero verified that discovery had ended, that there is no pretrial conference or trial setting, and that both parties had filed a pretrial order. See June 26 Tr. at 76:8-12 (Norvell). Dr. Rivero indicated that he would like to go to trial in December, and UNM stated that a trial at end of December would work with its schedule. See June 26 Tr. at 79:8-16 (Norvell, Court, Marcus). Both parties agreed that trial would last about five days. See June 26 Tr. at 80:8-11 (Norvell, Marcus). After consulting its calendar, the Court stated that it would set the trial for the week of December 3. See June 26 Tr. at 80:12-14 (Court). The Court then set the pretrial conference for “8:30 on November 20.” June 26 Tr. at 81:22 (Court). The Court noted that trial would start at 8:30 am, with the jury coming in at 9:00 am. See June 26 Tr. at 82:12-14 (Court).

         e. Argument Regarding the Complaints MIL.

         The parties then turned to the Complaints MIL, with Dr. Rivero arguing that remote complaints from 1992 would be unfairly prejudicial and not relevant to the jury. See June 26 Tr. at 82:15-83:7 (Court, Norvell). Dr. Rivero asserted that UNM would use the older complaints to “try to paint Dr. Rivero in a bad light, to cherry-pick and misrepresent Dr. Rivero's conduct long before the material issues that are in front of the Court with respect to the motion for summary judgment and the merits that are going to be discussed at trial.” June 26 Tr. at 83:14-19 (Norvell). Dr. Rivero argued that, because UNM promoted him to full professor in 2005 with no complaints, discipline, or suspension, any complaints before 2005 are immaterial. See June 26 Tr. at 83:20-24 (Norvell). Dr. Rivero contended that there is no basis for the complaints, and so it is preposterous for UNM to believe that he acted professionally for ten years and then reverted to misbehavior. See June 26 Tr. at 83:25-84:7 (Norvell). Accordingly, Dr. Rivero requested “that the Court limit any timeframe in discussion of complaints with respect to Dr. Rivero.” June 26 Tr. at 84:8-10 (Norvell).

         UNM responded that the older complaints against Dr. Rivero “are highly relevant to this case, ” because “there was a substantial increase in complaints regarding his lack of professionalism as early as 2003.” June 26 Tr. at 84:19-22 (Marcus). UNM thus contended that the complaints after 2003 are certainly relevant as a pattern of Dr. Rivero's behavior and as rationale for the Addendum. See June 26 Tr. at 84:25-85:2 (Marcus). UNM argued that the complaints from the 1990s are also relevant, because they help to understand Dr. Rivero's later behavior and show that the period of calm, without complaints, “was more of an anomaly.” June 26 Tr. at 85:9-10 (Marcus). See id. at 85:3-11 (Marcus). Accordingly, UNM asserted that the factfinder should consider these older complaints to determine if UNM appropriately required the Addendum for Dr. Rivero to return full time. See June 26 Tr. at 85:12-19 (Marcus). UNM noted that, when questioned about his issues in the 1990s -- including his refusal to be tested for MRSA and a ten-minute barrage of obscenities -- Dr. Rivero responded in a concerning manner by not having remorse, not admitting that he made any mistakes, and not acknowledging that he needed to improve his professionalism. See June 26 Tr. at 85:20-86:24 (Marcus).

         Dr. Rivero responded that there is no pattern of misbehavior because there is a decade with no incident. See June 26 Tr. at 87:6-9 (Norvell). As to the barrage-of-obscenities incident, Dr. Rivero admitted that he had a disagreement with a colleague and that they both swore at each other, but stated that they are now good friends. See June 26 Tr. at 87:10-18 (Norvell). Further, Dr. Rivero contended that his refusal to be tested for MRSA was justified, because he had no pattern of infection, so he did not need to be tested, and the individual administering the test barged in and interfered with his clinical rounds. See June 26 Tr. at 87:19-88:2 (Norvell). Accordingly, Dr. Rivero argued that the 1990s incidents are “nonsensical” and the others before 2006 have dubious value, so any complaints before 2006 “would create confusion, undue prejudice, and those other elements in 403.” June 26 Tr. at 88:7, 11-13 (Norvell). The Court stated that it was “not inclined to keep complaints out, ” because “it would probably be the best for the jury to have a robust record.” June 26 Tr. at 88:16-19 (Court).

         f. Argument Regarding the Psychological MIL.

         Dr. Rivero then argued for the Psychological MIL, asserting that “[t]he connotative implications of psychological attempt to mollify the actual facts of this case, which are that UNM presented a psychiatric exam.” June 26 Tr. at 89:20-23 (Norvell). Dr. Rivero noted that UNM admits that the term “psychiatric” “gives rise to the implication of a severe mental disorder, ” June 26 Tr. at 90:2-3 (Norvell), but that this term is the one that UNM uses fifteen times in the Addendum, June 26 Tr. at 89:23-25 (Norvell). Accordingly, Dr. Rivero asserted that UNM should use the word it chose to use in the Addendum -- “psychiatric” -- and not mollify it, as this variance would confuse the jury and create undue influence as the jury considers the effect which the Addendum had on Dr. Rivero. See June 26 Tr. at 90:3-15 (Norvell).

         UNM responded that “[t]he terms ‘psychiatric' and ‘psychological' in the clinical sense are fairly interchangeable, ” because “[p]sychologists can do almost everything that psychiatrists do, except prescribe drugs.” June 26 Tr. at 90:21-24 (Marcus). According to UNM, the Addendum provides no evidence that UNM believed Dr. Rivero needed medication, so there is no real distinction in the clinical sense between the words. See June 26 Tr. at 90:24-91:4 (Marcus). UNM contended, however, that, for lay people and for the potential jury, “psychiatry has an extremely powerful connotation that it indicated a severe condition, ” June 26 Tr. at 91:11-13 (Marcus), a connotation lacking in the clinical sense, so “UNM has the right to use a more neutral term to try to avoid having a jury reach a decision based solely on emotion, ” June 26 Tr. at 91:19-21 (Marcus). See id. at 91:10-21 (Marcus). UNM asserted that a psychological evaluation is very similar to a psychiatric evaluation, that the personality evaluation it sought could be conducted by a psychologist or a psychiatrist, but that it chose to have Dr. Rivero talk to a psychiatrist. See June 26 Tr. at 93:2-7 (Marcus).

         Dr. Rivero responded that the Addendum says nothing about a personality test and that it specifies a psychiatric evaluation by a board-certified psychiatrist. See June 26 Tr. at 93:12-16 (Norvell). Dr. Rivero maintained that, should UNM use different language, it changes the Addendum's meaning. See June 26 Tr. at 93:19-21 (Norvell). Dr. Rivero also argued that nobody could objectively perceive the Addendum as requesting a psychological evaluation or personality tests. See June 26 Tr. at 93:22-94:2 (Norvell).

         The Court stated its inclination that it will not prevent UNM from arguing that the psychiatric evaluation is a psychological examination, but that UNM should not replace the term “psychiatric” with “psychological” when discussing the evaluation requirement in opening statements and while questioning witnesses in front of the jury. See June 26 Tr. at 94:7-17 (Court). The Court allowed that, should UNM explain to the jury in the trial's evidentiary phase how, in the clinical sense, there is little difference between the two, UNM could call the Addendum's requirement what it wants in closing. See June 26 Tr. at 94:18-95:2 (Court). Otherwise, including in the opening, the Court believed, using the term “psychological” would be argumentative. See June 26 Tr. at 95:5-10 (Court).

         g. Argument Regarding Rivero's MSJ.

         Dr. Rivero then argued for his MSJ, and stated that the Court could rule on the portion of his MSJ discussing the statute-of-limitations defense at the same time the Court rules on UNM's MSJ statute-of-limitations argument. See June 26 Tr. at 95:19-96:4 (Court, Norvell). Dr. Rivero argued that UNM has provided no evidence to show that the doctrine of laches and waiver bars his constructive discharge claim, and noted that Magistrate Judge Lynch determined, in the MTD Order, that Dr. Rivero adequately stated a claim for constructive discharge. See June 26 Tr. at 96:14-25 (Norvell). Accordingly, Dr. Rivero argued that the Court should strike UNM's affirmative defenses I -- failure to state a claim -- and III -- laches and waiver -- with respect to his constructive discharge claim. See June 26 Tr. at 97:4-12 (Norvell). Dr. Rivero also requested that the Court strike UNM's affirmative defense XIII -- that it acted in accordance with its policies -- because, while UNM provided many policies, it admitted that it applied none with regards to the Addendum and that it had no set policy regarding psychiatric evaluations. See June 26 Tr. at 97:13-25 (Norvell). Regarding UNM's affirmative defense XIV -- that it fulfilled all contractual and statutory obligations -- Dr. Rivero noted that UNM stated it would supplement this defense and averred that this response is inadequate, because it does not provide “a fair sense of how that defense applies.” June 26 Tr. at 98:6-7 (Norvell). See id. at 98:1-8 (Norvell). Finally, Dr. Rivero requested that the Court strike UNM's affirmative defense XV -- a reservation of right to amend the Answer -- as it is “not really a defense.” June 26 Tr. at 98:12-13 (Norvell). See id. at 98:9-13 (Norvell).

         In response, UNM conceded that its affirmative defense XV could be stricken. See June 26 Tr. at 100:22-25 (Marcus). UNM maintained, however, that the Court should not strike affirmative defense I regarding the constructive discharge claim, because the Complaint provides no facts supporting such a claim. See June 26 Tr. at 101:1-9 (Marcus). UNM argued that its laches and waiver defense also applies to the constructive discharge claim, because Dr. Rivero worked at UNM for three years after receiving the Addendum despite his assertion that his working conditions were intolerable. See June 26 Tr. at 101:16-24 (Marcus). Regarding affirmative defense XIII, UNM asserted that it followed its polices and regulations, because there is no set policy on psychiatric evaluations, and there cannot be one, as every situation is different. See June 26 Tr. at 102:8-14 (Marcus). UNM also averred that it has policies regarding professionalism and disability discrimination, and that Dr. Rivero has provided no evidence that UNM violated such policies. See June 26 Tr. at 102:19-103:2 (Marcus). As to affirmative defense XIV, UNM argued that it fulfilled all obligations to Dr. Rivero under contract, because he reduced to 0.05 FTE voluntarily, and because UNM was not required to raise this time to full time, as the contract provided for 0.05 FTE and Dr. Rivero was essentially asking for a new contract. See June 26 Tr. at 103:3-15 (Marcus). Finally, UNM asserted that, as far as the statute is concerned, the Rehabilitation Act requires that the medical inquiry be a business necessity and job related, which it believes substantial evidence supports such a conclusion, and that, therefore, the Court should not strike this defense. See June 26 Tr. at 103:16-104:2 (Court).

         Dr. Rivero responded that Magistrate Judge Lynch's MTD Order addresses the failure-to-state-a-claim and the laches-and-waiver-doctrine defenses, and that Dr. Rivero thus overcame these defenses. See June 26 Tr. at 104:12-20 (Norvell). As to UNM's defense regarding policies, Dr. Rivero noted that Dr. Schenck testified that he did not apply any policy regarding the Addendum, that there is no evidence of UNM applying its policies, and that UNM has provided evidence only that policies existed. See June 26 Tr. at 104:21-105:2 (Norvell). Finally, Dr. Rivero asserted that UNM's reference to other defenses in its explanation of its affirmative defense XIV “defeats the purpose of fairness with respect to what Dr. Rivero would seek to litigate going forward.” June 26 Tr. at 105:5-7 (Norvell). See id. at 105:3-7 (Norvell).

         The Court then provided its inclination that it would rule in favor of UNM's MSJ, finding that the statute of limitations bars Dr. Rivero's medical inquiry claim and that he failed to state a constructive discharge claim. See June 26 Tr. at 105:17-25 (Court). Dr. Rivero then emphasized that he still has a retaliation claim that was briefed and, therefore, that still exists. See June 26 Tr. at 107:6-8 (Norvell). UNM responded that it was operating under Magistrate Judge Lynch's division of the Complaint into a claim for an illegal medical inquiry and a claim for constructive discharge, and that it had no notice of a retaliation claim. See June 26 Tr. at 107:19-24 (Marcus). UNM argued that, if the FAC were interpreted to state a retaliation claim, it “would be clearly time-barred because the likely retaliation, which was the [A]ddendum[, ] took place [in] April 2011, more than five years before plaintiff brought the lawsuit.” June 26 Tr. at 108:4-7 (Marcus). See id. at 108:2-7 (Marcus). Dr. Rivero conceded that whether he stated a retaliation claim is in dispute. See June 26 Tr. at 108:8-14 (Court, Norvell). The Court questioned whether the briefings discussed the retaliation claim. See June 26 Tr. at 108:23-25 (Court). UNM clarified that Dr. Rivero “asserted it in his response” and that it had responded but “got no reply.” June 26 Tr. at 109:4-6 (Marcus). UNM reasserted that Magistrate Judge Lynch divided the FAC into two causes of action and that it operated under that structure, so it did not need to address retaliation in its MSJ. See June 26 Tr. at 109:9-14 (Marcus). UNM argued, however, that if there were a retaliation claim, it is “very obviously time-barred.” June 26 Tr. at 109:15-16 (Marcus). The Court thanked the parties for their time and stated it would try to get “some opinions and orders out.” June 26 Tr. at 110:11 (Court).

         17. The Recusal Motion.

         On July 17, 2018, Dr. Rivero requested that the Court recuse pursuant to 28 U.S.C. § 455. See Recusal Motion at 1. Dr. Rivero asserts that, in requesting recusal, he “seeks to protect the judge and this proceeding from the outward appearance of which impartiality might reasonably be questioned and, in turn, protect the integrity of any decision, ruling, or verdict entered in this case.” Recusal Motion at 1. Dr. Rivero contends that “[t]he disclosures by Judge Browning as to his relationship with the University of New Mexico and its Regents give rise to an objectively reasonable question of impartiality, ” so “recusal is proper.” Recusal Motion at 3. Dr. Rivero notes the First and Second Disclosure Letter's disclosures: the Court's teaching at the School of Law; the Court's having students and its co-teacher at its home; the Court's waiver of pay being used to pay a law student to help the Court write an article; how that law student accepted a clerkship with the Court; how the Court's waiver of pay may have been treated as a donation to the School of Law or the UNM Foundation on one occasion; and the Court's acquaintanceships with Mr. Doughty, the current President of the Board of Regents, and Mr. Adcock, the Student Regent for 2017-2018. See Recusal Motion at 4-6 (citing First Disclosure Letter at 1-2; Second Disclosure Letter at 1-2).

         Dr. Rivero states that the next business day, Monday, June 25, 2018, the Court's assistant called Mr. Norvell to ask if he had received the Second Disclosure Letter. See Recusal Motion at 6. Dr. Rivero states that, as the Court had scheduled the hearing on the parties' dispositive motions for the next day, and Dr. Rivero was “proceeding to travel to New Mexico for the hearing, ” he “had the opportunity to review the Second Disclosure Letter only once without sufficient time to reflect upon the disclosures.” Recusal Motion at 6 (citing Affidavit of Dr. Dennis P. Rivero ¶¶ 2-4, at 1 (dated July 17, 2018), filed July 17, 2018 (Doc. 203-1)(“Second Rivero Aff.”)). Accordingly, Dr. Rivero states that Mr. Norvell informed the Court's “assistant that Dr. Rivero would proceed without discussion of the Second Disclosure Letter.” Recusal Motion at 6 (citing Second Rivero Aff. ¶ 5, at 1).

         Dr. Rivero asserts that a United States judge shall recuse where his or her “impartiality might reasonably be questioned, ” Recusal Motion at 7 (citing 28 U.S.C. § 455(a)), which is a test “of objective reasonableness, that is, whether the judicial officer's impartiality might reasonably be questioned under the circumstances, ” Recusal Motion at 7 (citing Lunde v. Helms, 29 F.3d 367, 370 (8th Cir. 1994)). Dr. Rivero asserts that a judge is also required to recuse where he or she has a financial or any other interest that could be substantially affected by the proceeding. See Recusal Motion at 7 (citing 28 U.S.C. § 455(b)(4)). Here, Dr. Rivero argues that the Court “has more than a mere association to Defendant University of New Mexico and its Board of Regents, ” and that the Court has “developed strong ties that may implicate a reasonable question of impartiality” requiring recusal. Recusal Motion at 7 (citing Lunde v. Helms, 29 F.3d at 371). Dr. Rivero first contends that the Court's employment at the School of Law “could give rise to a reasonable question of impartiality.” Recusal Motion at 8 (bolding omitted). According to Dr. Rivero, the Court's redirection of pay to a School of Law student to write an article “presumably under [the Court's] authorship . . . can be reasonably viewed as a redirection of pecuniary benefit from Defendant into the form of employment of law students.” Recusal Motion at 8. Dr. Rivero contends that this benefit “could be viewed as having additional value above direct compensation to the judge, as the student resources did not impact the federal court's budget.” Recusal Motion at 8. Dr. Rivero concedes that the Code of Judicial Conduct allows for compensation for teaching law, but argues that there is a “problem of perception here, ” that “[a]n objective observer could perceive, even incorrectly, that, given the benefits of resources from UNM law school, a judge in a similar position could, even unintentionally or subconsciously, favor the institution from which he has garnered recent benefit.” Recusal Motion at 8. Further, Dr. Rivero posits that the Court's employment “was ultimately with and under Defendant Board of Regents, whose authority governs the UNM School of law as well as the School of Medicine/University of New Mexico Health Sciences Center.” Recusal Motion at 8-9. Dr. Rivero notes that his own employment relationship “was also with and under the Defendant Board of Regents.” Recusal Motion at 9. Dr. Rivero therefore argues that there is a

strain on the perception of impartiality when (i) a judge and a plaintiff in a case have been employees of a defendant, (ii) a judge has occasionally and quite recently worked for the defendant, (iii) the plaintiff is directly adversarial to that defendant, and (iv) the defendant's alleged illegal and improper employment practices are directly at issue in the litigation.

Recusal Motion at 9.

         Dr. Rivero also contends that the Court's ties with the Board of Regents “could create an objectively reasonable question as to his impartiality.” Recusal Motion at 9. Dr. Rivero asserts that the Court's associations with the Board of Regents appear “mainly personal” and “do not necessarily negate impartiality, but their personal nature coupled with the employment relationship with Defendant objectively give rise to a reasonable question of impartiality, ” warranting recusal under 28 U.S.C. § 455. Recusal Motion at 9. Finally, Dr. Rivero argues that the case's special circumstances “create a unique context in which recusal preserves the integrity not only of the Court's stature but of any ruling as to the merits of the case, ” as, should UNM win, it would be “a Pyrrhic victory.” Recusal Motion at 10. Dr. Rivero further argues that, should he win, UNM's federal funding “could face additional scrutiny or sanction, including withdrawal of funding, pursuant to an adverse holding of discriminating, ” potentially souring UNM's relationship with the Court. Recusal Motion at 10 (citing 10 C.F.R. §§ 4.233, 4.46, 4.48). Accordingly, Dr. Rivero requests that the Court recuse. See Recusal Motion at 10.

         18. The Recusal Motion Response.

         UNM responded on July 31, 2018. See Response Brief in Opposition to Motion to Recuse the Honorable James O. Browning, filed July 31, 2018 (Doc. 208)(“Recusal Motion Response”). UNM argues that motions brought pursuant to 28 U.S.C. § 455 “must be timely filed.” Recusal Motion Response at 1 (citing Willner v. Univ. of Kan., 848 F.2d 1023, 1028 (10th Cir. 1988)(per curiam)). UNM notes that the Court was assigned to the case on October 3, 2017, and sent the First Disclosure Letter on January 23, 2018. See Recusal Motion Response at 2. UNM therefore argues that the Recusal Motion is untimely, because Dr. Rivero waited to file it “over nine months after Judge Browning was initially assigned to the case, and almost six months after Judge Browning sent his First Disclosure Letter.” Recusal Motion Response at 2. UNM posits that, significantly, the First Disclosure Letter “was the only one of the two Disclosure Letters that contained any reference to anything that could remotely be considered even de minimus compensation to Judge Browning from UNM[, and] Judge Browning noted that he believed that he could be impartial.” Recusal Motion Response at 2. UNM asserts that the Recusal Motion is also untimely as to the Second Disclosure Letter, despite a gap of only a month, because “the Court held a dispositive Motions hearing on June 26, 2018, ” and “the Court's actions clearly demonstrated that it was expecting any parties with objections to respond prior to the hearing.” Recusal Motion Response at 3. See id. at 2-3. According to UNM, the Court's assistant calling the parties before the hearing to ask if they received the Second Disclosure Letter and if they had any objections underscores this expectation. See Recusal Motion Response at 2. UNM argues that recusal at this time would be prejudicial to it, because it “invested a substantial amount of time preparing for and attending the hearing, and would be a waste of judicial resources.” Recusal Motion Response at 3.

         UNM asserts that Dr. Rivero's delay in objecting “cannot be excused by his statements in his affidavit, ” because it “is not notarized, which renders it insufficient as testimony.” Recusal Motion Response at 3 (citing Second Rivero Aff. at 1). Further, UNM asserts that Dr. Rivero's inability to “reflect upon the disclosures” is also an insufficient excuse for delay, because “he admits that he was able to review the disclosure letter” and that he “is represented by counsel, who is well-qualified to advise him regarding whether a judge should be recused based on disclosures.” Recusal Motion Response at 3 (citing Second Rivero Aff. ¶ 3, at 1). UNM argues that it would be a waste of judicial resources and a “manipulation of the judicial process” should the Court recuse now, Recusal Motion Response at 3, because the dispositive motions hearing likely would need to be repeated and it would give Dr. Rivero “a second bite at the proverbial apple, ” Recusal Motion Response at 4.

         Finally, UNM argues that the disclosures are not sufficient to warrant the Court's recusal. See Recusal Motion Response at 4. UNM notes that the Tenth Circuit's “test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality.” Recusal Motion Response at 4 (internal quotation marks omitted)(emphasis in Recusal Motion Response)(quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)). UNM argues that, here, “a reasonable person, knowing all relevant facts, would not have any reason to harbor doubts about the judge's impartiality.” Recusal Motion Response at 4. As Dr. Rivero states in the Recusal Motion that he “is only concerned about the appearance of impropriety, ” UNM questions how he can argue, with “no concerns that Judge Browning lacks integrity, ” that an “informed, reasonable person would have such concerns.” Recusal Motion Response at 5.

         UNM argues that the Court's teaching at the School of Law does not give it “a substantial financial interest in UNM.” Recusal Motion Response at 5. UNM posits that the judge's connections in Lunde v. Helms, which the United States Court of Appeals for the Eighth Circuit decided did not warrant recusal, are similar to the Court's here, because that judge was an alumnus of the university, made financial contributions to the university's foundation, and provided educational programs at the university. See Recusal Motion Response at 5 (citing Lunde v. Helms, 29 F.3d at 370-71). Further, UNM notes the judge's substantial ties to the school in Willner v. University of Kansas -- he was a director of the university's alumni association and served as President of the law school's Board of Governors -- still did not require recusal. See Recusal Motion Response at 5-6 (citing Willner v. Univ. of Kan., 848 F.2d at 1026, 1028). UNM posits that “it is unlikely that there are any federal or state judges in New Mexico who have no connection with the” School of Law, because it “is the only law school in the state.” Recusal Motion Response at 6. UNM also asserts that it is irrelevant that the Court has socialized with Mr. Doughty and Mr. Adcock, because they are not sued individually; rather, “[t]he Board of Regents, as a whole, is named in the lawsuit, because it is simply the body that can sue or be sued on behalf of UNM itself.” Recusal Motion Response at 6 (citing N.M. Stat. Ann. § 21-7-4). UNM notes that a judgement against it will not personally affect any of the Board of Regents members. See Recusal Motion Response at 6. Further, UNM posits that “no current member of the Board of Regents was serving on the Board of Regents at any time relevant to this litigation.” Recusal Motion Response at 6. UNM argues that the Recusal Motion “is based solely on speculation, ” Recusal Motion Response at 6, and that the Court should deny the Recusal Motion, see Recusal Motion Response at 7.

         19. The Recusal Motion Reply.

         Dr. Rivero replies. See Reply in Support of Motion to Recuse the Honorable James O. Browning, filed August 10, 2018 (Doc. 208)(“Recusal Motion Reply”). Dr. Rivero contends that the Recusal Motion is timely, noting that he received the Second Disclosure Letter four days before a dispositive motions hearing and that the information provided “is not easily or quickly digested, ” especially while preparing for the hearing. Recusal Motion Reply at 1. Further, Dr. Rivero notes that he filed the Recusal Motion before the Court had ruled on any of the motions before it. See Recusal Motion Reply at 1. As to UNM's assertion that recusal would be prejudicial, Dr. Rivero posits that he “also prepared for and attended the hearing, ” so “any impact of a recusal will be uniformly distributed.” Recusal Motion Reply at 2. Further, Dr. Rivero contends that his affidavit is technically valid, because 28 U.S.C. § 1746 “permits unsworn affidavits submitted with filings when such affidavits comply with the requirements of the statute.” Recusal Motion Reply at 2. Dr. Rivero argues that his affidavit is also logical, because he had to prepare for the hearing, and because he “would be prejudiced in the face of a demand for immediate response to the Second Disclosure Letter.” Recusal Motion Reply at 2.

         Dr. Rivero argues that the Court's connections with UNM warrants recusal, because an objectively reasonable person could question the Court's impartiality. See Recusal Motion Reply at 3. Dr. Rivero notes that the Court “has had an intermittent employment relationship with UNM and not suffered the consequences of UNM's administrative caprice, ” and has interacted with Board of Regents members “who have ultimate discretion over [the Court's] ongoing albeit intermittent relationship with the University, ” while Dr. Rivero has no relationship with any of the Board of Regents members. Recusal Motion Reply at 3. Dr. Rivero asserts that UNM has provided no evidence to support its statement “that ‘no current member of the Board of Regents was serving on the Board at any time relevant to this litigation' . . ., and it is facially untrue.” Recusal Motion Reply at 4 (quoting Recusal Motion Response at 6). Dr. Rivero argues that “[t]he reputation of the Board of Regents and its members who stood by and supported discriminatory polices are certainly at stake, ” so any outcome adverse to UNM would affect the Board of Regents and could potentially turn it against the Court. Recusal Motion Reply at 4. Dr. Rivero asserts that the Court should act with integrity, which he posits includes “the necessity to revisit conclusions through analyses of the parties involved in the case, who may elucidate areas that may have been overlooked in determining the propriety of continuing as a judge in this matter.” Recusal Motion Reply at 4. Finally, Dr. Rivero argues that UNM's reliance on Willner v. University of Kansas and Lunde v. Helms is misplaced. See Recusal Motion Reply at 5-6. Dr. Rivero asserts that the Willner v. University of Kansas court did not reach the merits in its decision, because it “simply ruled on the basis that the plaintiff's objection was untimely, having moved for recusal one year after having learned of the judge's” potential conflict. Recusal Motion Reply at 5 n.1 (citing Willner v. Univ. of Kan., 848 F.2d at 1029). Dr. Rivero distinguishes Lunde v. Helms, because the university did not employ the judge, as is the case here. See Recusal Motion Reply at 6 (citing Lunde v. Helms, 29 F.3d at 370). Accordingly, Dr. Rivero requests that the Court recuse. See Recusal Motion Reply at 6.

         20. The August 13 Hearing.

         The Court held a telephonic hearing out of district on the Recusal Motion on August 13, 2018, to which the parties consented. See Notice of Defendant's Consent to the Court's Telephonic Appearance for the Hearing Scheduled for A ugust [sic] 13, 2018 at 8:30AM at 1, filed August 2, 2018 (Doc. 206); Plaintiff's Consent to Telephonic Hearing on August 13, 2018 at 1, filed August 7, 2018 (Doc. 207). The Court began by asking UNM if it consented to the Court conducting the hearing out of district, because the Court understood UNM to have consented only to a telephonic hearing. See Transcript of Motion Proceedings at 3:13-18 (Court)(taken August 13, 2018), filed November 28, 2018 (Doc. 219)(“Aug. 13 Tr.”). UNM stated that it consented. See Aug. 13 Tr. at 3:19-20 (Marcus).

         Dr. Rivero argued first, stating that he is not comfortable with the Court's participation in the case and requesting that the Court recuse based on the Court's association with UNM as provided in the Disclosure Letters. See Aug. 13 Tr. at 4:5-20 (Norvell). Dr. Rivero asserted that, under 28 U.S.C. § 455(a), a federal judge must recuse from “any proceeding in which his impartiality might be reasonably be questioned, ” Aug. 13 Tr. at 4:23-25 (Norvell), which is a test of “objective reasonableness, whether a judicial officer's impartiality might be reasonably questioned under the circumstances, ” Aug. 13 Tr. at 5:1-4 (Norvell). See id. at 4:21-5:5 (Norvell). Dr. Rivero believed that “what it comes down to is the continued, and potentially intermittent and recurring employment with UNM, and the benefit that is garnered and may be ongoing by the Court.” Aug. 13 Tr. at 5:21-24 (Norvell). Dr. Rivero also asserted that an outside party may view as a direct, ongoing benefit the Court's redirection of pay to a student for article-writing help. See Aug. 13 Tr. at 6:2-17 (Norvell). Dr. Rivero argued that, because this case is an employment suit, the Court's employment relationship with UNM also gives rise to a reasonable question of the Court's impartiality. See Aug. 13 Tr. at 6:18-21 (Norvell). Dr. Rivero asserted that “it would be a pyrrhic victory if the defendant won.” Aug. 13 Tr. at 8:23-24 (Norvell).

         UNM responded that Dr. Rivero was aware of the Court's teaching at the School of Law in January, 2018, so his Recusal Motion based on this fact is untimely under the caselaw. See Aug. 13 Tr. at 9:11-22 (Marcus). UNM contended that Dr. Rivero “ignored the letter” instead of filing a motion to recuse in January, 2018, so “he waived any claims for recusal, any attempt at recusal based on any facts mentioned in the first letter.” Aug. 13 Tr. at 8-11 (Marcus). As to the Second Disclosure Letter, UNM noted that the Court “went out of [its] way to make sure that [it] received an answer prior to the hearing, ” by calling counsel for both parties “and got consent from both sides in this case.” Aug. 13 Tr. at 10:17-22 (Marcus). UNM argued that, “by giving consent early on, prior to the hearing, Mr. Norvell has also waived any claims for recusal.” Aug. 13 Tr. at 10:23-25 (Marcus). UNM averred that recusal now means the dispositive motions hearing would be “a massive waste of judicial resources, ” Aug. 13 Tr. at 11:6-7 (Marcus), and a waste of time for both parties, see Aug. 13 Tr. at 11:2-13 (Marcus). UNM argued that Dr. Rivero is attempting to manipulate the judicial process to “get a second bite at the proverbial apple.” Aug. 13 Tr. at 11:16-17 (Marcus). See id. at 11:14-18 (Marcus). UNM noted that the Court's reputation for ensuring that there is no appearance of a conflict of interest and asserted that no reasonable person, knowing all the facts, would believe there is a conflict of interest here. See Aug. 13 Tr. at 11:24-12:10 (Marcus). UNM also contended that the Court's relationship with the School of Law is more like that of a volunteer rather than an employee. See Aug. 13 Tr. at 12:11-19 (Marcus). UNM noted that “[t]here is no ground for a private . . . cause of action[] to result in the pulling of federal funding” as Dr. Rivero contends. Aug. 13 Tr. at 13:11-14 (Marcus). See id. at 13:9-17 (Marcus)(citing Greater L.A. Council on Deafness v. Cmty. Television of S. Cal., 719 F.2d 1017, 1022 (9th Cir. 1983)). UNM also posited that, while the Court has some relationship with two individuals on the Board of Regents, the Court does not have a relationship with the “Board of Regents as a whole.” Aug. 13 Tr. at 14:16 (Marcus). See id. at 14:14-16 (Marcus). UNM did not believe that the case would have any impact on these individuals of the Board of Regents, so UNM argued there is no conflict of interest based on these passing social ties. See Aug. 13 Tr. at 14:20-15:9 (Marcus).

         Dr. Rivero responded that he is not trying to manipulate the judicial process. See Aug. 13 Tr. at 16:22-25 (Norvell). Dr. Rivero asserted that he is properly asking for recusal under 28 U.S.C. § 455(a) and that, while “[t]imeliness can be a consideration, ” Aug. 13 Tr. at 16:8 (Norvell), where “a disqualifying circumstance appears, ” Aug. 13 Tr. at 16:5-6 (Norvell), the judge must recuse, see Aug. 13 Tr. at 16:4-7 (Norvell). Dr. Rivero noted that he filed the Recusal Motion before the Court made any decision, during a time when the Court was preoccupied with a criminal case in July. See Aug. 13 Tr. at 16:16-23 (Norvell). Dr. Rivero underscored that the question is not of the Court's reputation, but of objective perspective --whether an objective, reasonable person would view the facts as requiring disqualification under 28 U.S.C. § 455(a). See Aug. 13 Tr. at 16:25-17:13 (Norvell). Dr. Rivero reasserted that the Court has an employment relationship with UNM and, with this case being about Dr. Rivero's employment relationship with UNM, recusal is warranted. See Aug. 13 Tr. at 17:25-18:5 (Norvell). Finally, Dr. Rivero asked that the Court review United States v. Moskovits, 866 F.Supp. 178 (E.D. Pa. 1994)(Pollak, J.), because the judge occasionally taught at the University of Pennsylvania and, after the school initiated disciplinary proceedings against the criminal defendant, its student, the judge recused. See Aug. 13 Tr. at 18:6-22 (Norvell).

         The Court indicated that it will likely deny the Recusal Motion, but that it will “take a hard look at it, [and] review all those cases.” Aug. 13 Tr. at 19:9-10 (Court). See id. at 19:4-10 (Court). The Court reminded the parties that it had closely examined the issue with its law clerks before it sent the Disclosure Letters “and had decided that no more than a disclosure would be appropriate here, ” because “there was not a conflict that required [the Court] to recuse.” Aug. 13 Tr. at 19:13-15 (Court). See id. at 19:11-15 (Court). The Court stated that it “welcomed any questions or anything at that time [it sent the Disclosure Letters], but [it] had made a determination.” Aug. 13 Tr. at 19:16-17 (Court). The Court posited that it has not had a problem with its relationship with UNM in past cases, which “lends a lot of support to the fact that objectively people have looked at these facts and had not had any problem.” Aug. 13 Tr. at 19:21-23 (Court). The Court underscored that it would not characterize its relationship with UNM as “anything other than an employment relationship.” Aug. 13 Tr. at 19:25-20:1 (Court). The Court stated that, “after [it] made this many disclosures, d[id] the additional work of making sure that [Courtroom Deputy Clerk] Ms. Bevel called everybody before the hearing so that there was plenty of time, I simply can't . . . run the Court this way.” Aug. 13 Tr. at 20:21-25 (Court). The Court stated that it is not appropriate to file a motion to recuse after it worked hard in advance of the hearing and gave a preliminary ruling at the hearing, which it knows upset Dr. Rivero. See Aug. 13 Tr. at 20:25-21:6 (Court). The Court posited that any problem needed to be raised before the hearing, but underscored its belief that there is not an objective problem here. See Aug. 13 Tr. at 21:9-13 (Court). The Court noted that many other United States Judges for the District of New Mexico have ties with UNM, and so the Court's recusal from this case may mean no other judge in the District of New Mexico can take cases involving UNM. See Aug. 13 Tr. at 22:1-18 (Court). Finally, the Court posited that it has an obligation to keep and decide cases if there is no basis for recusal. See Aug. 13 Tr. at 22:19-22 (Court).

         21. The Order.

         The Court entered the Order, filed September 24, 2018 (Doc. 211)(“Order”), which rules on UNM's MSJ, Rivero's MSJ, the Complaints MIL, the Psychological MIL, and the Recusal Motion, but states that the Court will “issue a Memorandum Opinion at a later date more fully detailing its rationale for this decision.” Order at 1 n.1. See id. at 1-2. In the Order, the Court first concludes that the statute of limitations bars Dr. Rivero's medical inquiry claim. See Order at 4. The Court also determines that the four-part psychiatric evaluation requirement is job-related and consistent with business necessity and, therefore, permissible. See Order at 5-6. Concluding that Dr. Rivero was not constructively discharged and that any retaliation claim must fail, the Court finds summary judgment for UNM on all of Dr. Rivero's claims proper. See Order at 6.

         The Court does not rule on Rivero's MSJ or the Psychological MIL, because its grant of summary judgment for UNM moots those motions. See Order at 6. The Court rules on the Complaints MIL, because “it touches on what the Court may properly consider in deciding UNM's MSJ, ” and denies it. Order at 6. The Court concludes the older complaints “provide Dr. Rivero's full employment history at UNM and are relevant to the question of whether UNM reasonably doubted Dr. Rivero's ability to professionally interact with patients and co-workers.” Order at 6. Finally, the Court denies the Recusal Motion, concluding that there is no reasonable question of the Court's impartiality. See Order at 7.

         LAW REGARDING STATING AFFIRMATIVE DEFENSES

         Rule 8(c) of the Federal Rules of Civil Procedure provides:

         (c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.
(2) Mistaken Designation.
If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Fed. R. Civ. P. 8(c). “[A] responsive pleading must set forth certain enumerated substantive defenses as well as ‘any other matter constituting an avoidance or affirmative defense.'” 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1270, at 557-58 (3d ed. 2004)(quoting a prior version of rule 8(c)). Modeled after the English and New York rules in force when the Federal Rules of Civil Procedure first were drafted, see Judicature Act (The Annual Practice, 1937) O.19, r. 15; N.Y.C.P.A. (1937) § 242, rule 8(c) makes no attempt to define the concept of affirmative defense. Instead, it obligates defendants to plead affirmatively any of nineteen defenses that rule 8(c)(1) lists that the defendant wishes to assert. See Fed.R.Civ.P. 8(c). If the district court or jury hearing a case accepts the defendant's affirmative defense, the defense defeats the plaintiff's claim. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1274 (10th Cir. 2012)(“[O]nce the court's jurisdiction has been properly invoked in the plaintiff's complaint, the assertion of such a defense is relevant only to whether the plaintiff can make out a successful claim for relief, and not to whether the court has original jurisdiction over the claim itself.” (internal quotation marks omitted)(quoting S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010))); 5 Wright & Miller, supra, § 1270, at 561. The burden of proof for affirmative defenses generally rests on the defendant. See Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 5 n.8 (1st Cir. 2001); Schleibaum v. Kmart Corp., 153 F.3d 493, 501 (7th Cir. 1998). In stating affirmative defenses, defendants do not need to provide “factual support.” Lane v. Page, 272 F.R.D. 581, 594 (D.N.M. 2011)(Browning, J.). In Lane v. Page, the Court “declin[ed] to extend the heightened pleading standard the Supreme Court established in Bell Atlantic v. Twombly[, 550 U.S. 544 (2007)] and Ashcroft v. Iqbal[, 556 U.S. 662 (2009), ] to affirmative defenses pled in answers, because the text of the rules, and the functional demands of claims and defenses, militate against requiring factual specificity in affirmative defenses.” Lane v. Page, 272 F.R.D. at 588.[100]

         Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions: (i) where the defendant asserts an immunity defense -- the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-41 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009)); Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)(McConnell, J.)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.” (citation omitted)). The defense of limitations is the affirmative defense that the complaint's uncontroverted facts will most likely establish. See 5 Wright & Miller, supra, § 1277, at 643. If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945); Andrew v. Schlumberger Tech. Corp., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from caselaw in Courts of Appeals, that the plaintiff may avoid this problem altogether -- at least at the motion-to-dismiss stage -- by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. City of New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, No. CIV-08-140-W, 2008 WL 3833472 (W.D. Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted this avoidance practice, see Anderson Living Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1208-09, 1234-38 (D.N.M. 2014)(Browning, J.).

         LAW REGARDING RULE 12(b)(6)

         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(citing Williams v. Meese, 926 F.3d 994, 997 (10th Cir. 1991)). A court may also consider documents to which the complaint refers, if their adequacy is central to the plaintiffs' claims and their authenticity is unquestioned. See Armstrong v. N.M. Disability Det. Servs., 278 F.Supp.3d 1193, 1201 n.3 (D.N.M. 2017)(Browning, J.)(concluding that the court properly considered notices attached to the motion and not to the complaint, because the complaint referenced them, their adequacy was central to the plaintiffs' claims, and their authenticity was unquestioned). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”).

         A complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled 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. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007)(“[O]nly ‘[i]f a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts' would the defendant prevail on a motion to dismiss.” (second alteration in Tellabs, Inc. v. Makor Issues & Rights, Ltd.)(quoting Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 602 (7th Cir. 2006))); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))). At the motion-to-dismiss stage, the court does not weigh the evidence, and “is interested only in whether it has jurisdiction and whether the [p]laintiffs plead a claim to relief that is plausible on its face.” Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1199 (D.N.M. 2010)(Browning, J.).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation and footnote omitted). See Duncan v. Citibank (S.D.), N.A., No. CIV 06-0246 JB/KBM, 2006 WL 4063021, at *3 (D.N.M. June 30, 2006)(Browning, J.)(dismissing a civil Racketeer Influenced ...


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