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Darr v. New Mexico Department of Game & Fish

United States District Court, D. New Mexico

August 30, 2019

MARGARET DARR, Plaintiff,
v.
NEW MEXICO DEPARTMENT OF GAME AND FISH, Defendant.

          Rosario D. Vega Lynn Vega Lynn Law Offices, LLC, Diane Garrity Serra & Garrity, P.C., Attorneys for the Plaintiff.

          Stephen M. Williams Paula G. Maynes Miller Stratvert PA, Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Opposed Motion for Remand and Memorandum in Support, filed July 19, 2018 (Doc. 6)(“Motion”). The Court held a hearing on September 25, 2018. The primary issue is whether the Court has federal-question jurisdiction over Plaintiff Margaret Darr's claims against Defendant New Mexico Department of Game and Fish (“NM Game & Fish”). The Court will grant the Motion. The allegations in Darr's Complaint for Violations of the New Mexico Human Rights Act for Disability Discrimination and Retaliation, Retaliation for Violations of the Fair Pay for Women Act, Whistleblower Protection Act, and Fraud Against the Taxpayers Act, filed in state court June 15, 2018, filed in federal court July 13, 2018 (Doc. 1-1)(“Complaint”), do not present a substantial federal question. The Complaint alleges that NM Game & Fish retaliated against Darr for engaging in protected activity, to include leave taken under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 through 2654 (“FMLA”), in violation of four New Mexico statutes: (i) the Whistleblower Protection Act, N.M. Stat. Ann. §§ 10-16C-1 through 10-16C-5, see Complaint ¶¶ 93-103, at 21-23; (ii) the Fair Pay for Women Act, N.M. Stat. Ann. § 28-23-1 (“FPWA”), see Complaint ¶¶ 104-112, at 22-25; (iii) the Fraud Against Taxpayer Act (“FATA”), N.M. Stat. Ann. §§ 44-9-1 through 44-9-14, see Complaint ¶¶ 113-121, at 25-27; and (iv) the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-7 (“NMHRA”), see Complaint ¶¶ 122-146, at 27-30. Although the Complaint contains several references to the FMLA, the Court concludes that these references merely indicate that Darr engaged in protected activity necessary to support her state-law retaliation claims. Hence, the Court concludes that the case does not involve a substantial federal question. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701 (2006)(“[T]he mere presence of a federal issue in a state cause of action and the mere assertion of a federal interest are not enough to confer federal jurisdiction.”). Accordingly, the Court will remand the case to the First Judicial District Court, Santa Fe County, State of New Mexico.

         FACTUAL BACKGROUND

         The Court takes its facts from the Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely Darr's version of events.

         According to the Complaint, in November, 2013, NM Game & Fish hired Darr as a Non Game Avian Biologist. See Complaint ¶ 1, at 1. Soon thereafter, Darr discovered that NM Game & Fish was paying her “significantly less than a male employee with less experience and the same education, ” which, according to Darr, was “in violation of the New Mexico Fair Pay for Women Act.” Complaint ¶ 1, at 1. In November, 2014, Darr reported the alleged FPWA violation to NM Game & Fish's human resources department. See Complaint ¶ 1, at 1. Darr informed the human resources department that NM Game & Fish was paying her “87% ($20.63 vs $23.70/hr) of her male comparator.” Complaint ¶ 1, at 1. Although NM Game & Fish agreed to correct the pay discrepancy, NM Game & Fish did not admit to violating the FPWA. See Complaint ¶ 1, at 1-2. Instead, NM Game & Fish generated paperwork which indicated that Darr received a merit-based pay raise. See Complaint ¶ 1, at 2. NM Game & Fish did not inform Darr that the FPWA entitled her to additional monetary compensation. See Complaint ¶ 1, at 2. As justification for Darr's merit-based pay raise, NM Game & Fish “repeatedly” cited to Darr's “excellent work performance, ” although this “merit-based pay remedy” further delayed Darr's pay raise from taking effect. Complaint ¶ 1, at 2. When Darr inquired about backpay for the FPWA violation, NM Game & Fish informed her that “backpay was not available, even though the statute expressly provides for these damages.” Complaint ¶ 1, at 2. Darr brought her grievance to the Equal Employment Opportunity Commission (“EEOC”), “but elected not to file a formal complaint because of retaliation fears.” Complaint ¶ 1, at 2. Nevertheless, thereafter NM Game & Fish “engaged in an endless campaign of retaliation in violation of state law.” Complaint ¶ 1, at 2. Defendant's retaliation took the form “of denial of funding, restriction of activities/opportunities and increased scrutiny from her supervisors.” Complaint ¶ 1, at 2. Darr attempted to address her concerns with her supervisors, yet “the harassment and retaliation increased.” Complaint ¶ 1, at 2. In May, 2017, Darr alerted NM Game & Fish “about her supervisors treating her substantially different than other employees and denying funding/approval needed to complete her assigned job, ” to include that her supervisors actions were “causing inadequate measures to conserve non-game birds of New Mexico.” Complaint ¶ 1, at 2. NM Game & Fish did not address Darr's concerns, but instead disciplined her “for ‘failing to follow the chain of command' for requesting equal treatment and the ability to do the job she was hired to perform.” Complaint ¶ 1, at 2-3. NM Game & Fish not only ignored the information that Darr submitted to refute the disciplinary allegations, but also permitted her supervisors to continue their retaliatory behavior, which caused Darr “to develop a temporary mental health condition, anxiety and clinical depression, as her healthcare provider diagnosed.” Complaint ¶ 1, at 3. In August, 2017, Darr “requested a transfer from her supervisors due to her physician's recommendation to improve her work environment, ” Complaint ¶ 50, at 12, and “was approved for intermittent Family and Medical Leave, ” Complaint ¶ 51, at 13. NM Game & Fish neither transferred Darr nor investigated her “charges of a retaliatory work environment promptly after . . . approval of Family Medical Leave.” Complaint ¶ 52, at 13. Despite its awareness of Darr's mental health condition, NM Game & Fish required Darr “to meet directly with her supervisor in order to pursue grievances and a request for a reasonable accommodation.” Complaint ¶ 1, at 3. In September, 2017, Darr informed her supervisor that NM Game & Fish “had not engaged her in an interactive process despite . . . FMLA certification.” Complaint ¶ 57, at 14.

         Additionally, NM Game & Fish subjected Darr “to a four-hour interrogation by armed and uniformed NMDGF Conservation Officers, ” and did not provide Darr with the investigation's outcome. Complaint ¶ 1, at 3. In October, 2017, Darr provided her supervisor with the requisite recertification information “to allow her Family and Medical Leave due to her disability related to depression and anxiety.” Complaint ¶ 67, at 16. Darr's supervisor, Mason Cline, thereafter

continued his retaliation by chastising Ms. Darr over a missed deadline that occurred while Ms. Darr was on Family Medical Leave. In violation of law, Mr. Cline instructed Ms. Darr that she could not miss another deadline without prior notice, knowing full well that prior notice was impossible when Ms. Darr had to use intermittent/emergency Family Medical Leave for depression and anxiety flare ups.

Complaint ¶ 70, at 17. In November, 2017, Darr “again filed a grievance about her interim evaluation being retaliatory for her protected activity and exercising her rights under Family Medical Leave and disability laws.” Complaint ¶ 71, at 17. Darr “continued to use more Family and Medical leave.” Complaint ¶ 75, at 18. NM Game & Fish ignored “[a]ll of Ms. Darr's grievances, complaints and pleas for assistance, ” and responded to Darr's accommodation request only when she “insisted an interactive meeting be conducted.” Complaint ¶ 1, at 3. NM Game & Fish insisted on including Darr's supervisors in the reasonable accommodation process that NM Game & Fish implemented “more than four months after . . . observing the ongoing need to use Family Medical Leave time off.” Complaint ¶ 76, at 18. “The Defendant held only one such interactive meeting, ” “had no further interactive discussion, ” and “refused to even provide Ms. Darr with a reasonable accommodation to purchase a tape recorder in lieu of a temporary change of supervision.” Complaint ¶ 1, at 3. In December, 2017, Darr's supervisor warned Darr that NM Game & Fish intended to involuntarily dismiss her from employment, because NM Game & Fish could not find a position that could accommodate her disability; however, NM Game & Fish “did not conduct a search throughout state government. Ms. Darr was unable to submit an updated resume . . . because the Family Medical Leave policy . . . did not permit Ms. Darr to use work email, computers or phones.” Complaint ¶ 90, at 21. NM Game & Fish then “improperly” relied on “a State Personnel Board rule that applied only to individuals with permanent disabilities” to “unilaterally” effect Darr's “constructive discharge, ” which occurred when Darr resigned in January, 2018. Complaint ¶ 1, at 3; id. ¶ 92, at 21.

         PROCEDURAL BACKGROUND

         Darr alleges that: (i) NM Game & Fish violated the Whistleblower Protection Act by retaliating against her when she questioned “why her grant proposals were not being acted on timely in violation of NMDGF and U.S. Fish and Wildlife rules, regulations and policies, ” Complaint ¶ 95, at 22, and “continued to engage in protected activity when she identified her temporary disability, requested Family and Medical leave and an accommodation, ” Complaint ¶ 97, at 22; (ii) NM Game & Fish violated the FPWA by retaliating against Darr after she complained to NM Game & Fish about “being paid substantially less than a male employee performing the same job, ” Complaint ¶¶ 105-08, at 24; (iii) NM Game & Fish violated the FATA by retaliating against Darr when she “questioned her supervisor's delay in approving grant proposals and failing to allocate grant monies available, ” Complaint ¶ 115, at 25; (iv) NM Game & Fish violated the NMHRA when, after Darr informed NM Game & Fish about her “temporary mental health disability related to clinical depression and anxiety, ” which she identified “when she applied for and received Family Medical Leave benefits, ” Complaint ¶ 123, at 27, NM Game & Fish, upon Darr's “return from Family Medical Leave, ” Complaint ¶ 124, at 27, did not act “on its perception related to Ms. Darr's need for accommodation when it approved the Family Medical Leave application, ” Complaint ¶ 125, at 27, and instead changed Darr's “essential job functions to require her to meet and communicate more frequently with her Supervisors despite having full knowledge that Ms. Darr's disability would be exacerbated, ” Complaint ¶ 127, at 27-28, and “refused to provide a temporary transfer to a different supervisor, ” Complaint ¶ 128, at 28; and (v) NM Game & Fish further violated the NMHRA by “engag[ing] in behavior to allow Ms. Darr's supervisors to require more contact with them, to have armed and uniformed Conservation Officers conduct a four hour interrogation in violation of state law . . ., and not reviewing Ms. Darr's charges about conservation funding for non game bird species, ” Complaint ¶ 137, at 29.

         NM Game & Fish removed the case to federal court pursuant to 28 U.S.C. § 1446(a). See Notice of Removal at 1, filed July 13, 2018 (Doc. 1)(“Removal Notice”). In the Removal Notice, NM Game & Fish argues that removal is proper because in the Complaint's paragraphs 51-52, 57, 67, 70-71, 75-76, 90, 97, and 123-125 Darr “refers to the Family Medical Leave Act or . . . authorized Family Medical Leave, ” which, according to NM Game & Fish, will compel the Court to interpret and apply the FMLA. Removal Notice ¶ 2, at 1. NM Game & Fish contends that such references “imply that Defendant interfered with Plaintiffs FMLA rights, ” Removal Notice ¶ 4, at 2, and “invite[] the Court to infer that NM Game & Fish violated Plaintiffs Family Medical Leave rights, Removal Notice ¶ 5, at 2. Moreover, Darr's allegations, that she was the victim of unlawful retaliation for having taken Family Medical Leave and that NM Game & Fish interfered with her exercise of her FMLA rights, invoke causes of action “recognized only in federal law, 29 U.S.C. §§ 2601 et. seq. (2009).” Removal Notice ¶ 7, at 3. Accordingly, NM Game & Fish concludes that “this action may be removed to the United States District Court for the District of New Mexico.” Removal Notice ¶ 7, at 3.

         1. The Motion.

         Darr moves the Court “to enter an Order remanding the case to the First Judicial District Court, County of Santa Fe, ” because “[t]here is not a federal question nor a federal claim presented in Plaintiff's Complaint.” Motion at 1. Darr argues that removal to federal court was improper, because the Complaint pleads “only causes of action under state law and has raised certain allegations of retaliation in violation of the FMLA as predicate facts to support her state-law retaliation claims.” Motion at 1. Darr notes that the Complaint “mentions the words ‘family' ‘medical' and ‘leave' 12 times and ‘FMLA' once [sic] time.” Motion at 1. Furthermore, Darr argues, removal was “unreasonable, ” because NM Game & Fish does not inform the Court “why or how the ‘family medical leave' and/or FMLA references trigger consideration of a substantial federal question or federal claim, nor does Defendant inform the Court that the FMLA expressly provides for state court concurrent jurisdiction even if the FMLA references somehow required removal here.” Motion at 2.

         Darr maintains that her Complaint alleges only violations of state statutes and state claims. See Motion at 4. The Complaint alleges, for example, that Darr “submitted a Charge of Discrimination[1] with the EEOC against Defendant for violation of the New Mexico Fair Pay for Women Act” after discovering that NM Game & Fish was paying her “significantly less than a male employee.” Motion at 4 (citing Complaint ¶ 1, at 1). According to Darr, the Complaint further alleges that, when the EEOC, unbeknownst to Darr, filed a complaint against NM Game & Fish, NM Game & Fish “began a campaign of retaliation against Ms. Darr which caused her to ‘develop a temporary mental health condition, anxiety and clinical depression.'” Motion at 4 (quoting Complaint ¶ 1, at 3). In addition, the Complaint includes unlawful retaliation claims under the FPWA, the Whistleblower Protection Act, and the FATA, which the Court, according to Darr, “does not have original jurisdiction to adjudicate.” Motion at 4.

         Darr insists that she “does not allege that the Defendant violated the FMLA, ” but rather, in the Complaint's paragraphs 51 and 52, that the “Defendant ‘approved' intermittent ‘Family and Medical Leave, '” Motion at 5 (quoting Complaint ¶ 51, at 13), and, in paragraphs 57, 67, 70, and 71, “mentions the ‘FMLA certification' and her ‘original Family and Medical Leave application' and retaliatory conduct to include blaming her for a missed deadline that occurred while Ms. Darr was on FMLA leave, ” Motion at 5 (quoting Complaint ¶ 67, at 16). Darr disputes NM Game & Fish's contention that paragraphs 76 and 90 allege FMLA violations, because paragraph 76 merely states that NM Game & Fish “refused to permit other supervisors to ‘be part of the interactive reasonable accommodation process the NMDGF was setting up, '” Motion at 5 (quoting Complaint ¶ 76, at 18), while paragraph 90 “states that she was unable to access ‘work email, computers or phones' ‘because [of] the Family Medical Leave policy and NMDGF's' restrictions, ” Motion at 5 (quoting Complaint ¶ 90, at 21). Paragraph 97, according to Darr, establishes that she properly filed a Charge of Discrimination and mentions the FMLA only to assert that she engaged in protected activity related to her temporary disability. See Motion at 5 (citing Complaint ¶ 97, at 22). Paragraphs 123 through 125 do not mention the FMLA but rather discuss that Darr “applied for ‘Family Medical Leave benefits'” to emphasize that the “Defendant did not ‘act timely to address Ms. Darr's reasonable accommodation request'” in violation of the NMHRA. Motion at 5 (quoting Complaint ¶ 125, at 27). The Complaint, according to Darr, also notes that “the Defendant ‘approved the Family Medical Leave application.'” Motion at 5 (quoting Complaint ¶ 125, at 27). Darr insists that these FMLA references merely “provide information to show legally cognizable claims of New Mexico state law” and are therefore insufficient “to provide a basis for this Court to exercise its jurisdiction.” Motion at 5-6. According to Darr, “[a] mere reference to federal regulations for the purposes of asserting or proving negligence and/or non-compliance with state law does not transform a controversy into a federal question controversy to permit removal.” Motion at 6 (citing McNearney v. U.S. Bankcorp, Inc., No. CIV S-06-0552 GEB\GGH PS, 2006 WL 1582250, at *2 (E.D. Cal. June 5, 2006)(Hollows, M.J.)).

         Darr adds that, even if the Complaint asserts FMLA violations, the Court should nonetheless remand the case, because the FMLA provides for concurrent jurisdiction. See Motion at 6. Darr explains the complete preemption doctrine, wherein, according to Darr, “federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress's intent to permit removal, ” Motion at 7 (quoting Colbert v. Union Pac. R.R. Co., 485 F.Supp.2d 1236, 1240 (D. Kan. 2007)(Robinson, J.)), and insists that the doctrine is inapplicable here, because “[t]he FMLA is not preemptive, ” Motion at 7. That the statute states that “a FMLA violation ‘may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees'” is, according to Darr, evidence of concurrent jurisdiction. Motion at 7 (emphasis in Motion)(quoting 29 U.S.C. § 2617(a)(2)). Moreover, Darr adds, “the Defendant concedes removal is discretionary in its Notice of Removal” when NM Game & Fish states: “‘Accordingly, this action may be removed to the United States District Court for the District of New Mexico.'” Motion at 7 (emphasis in Motion)(quoting Removal Notice at 3).

         2. The Response.

         NM Game & Fish responds. See Defendant's Response to Plaintiff's Opposed Motion for Remand and Memorandum in Support, filed July 30, 2018 (Doc. 11)(“Response”). NM Game & Fish maintains that it removed the case to federal court because Darr “pled in her Complaint . . . various allegations that Defendant violated her Family Medical Leave Act . . . rights.” Response at 1. According to NM Game & Fish, examples implicating the FMLA include paragraph 70, wherein Darr states:

Mr. Cline continued his retaliation by chastising Ms. Darr over a missed deadline that occurred while Ms. Darr was on Family Medical Leave. In violation of law, Mr. Cline instructed Ms. Darr that she could not miss another deadline without prior notice, knowing full well that prior notice was impossible when Ms. Darr had to use intermittent/emergency Family Medical Leave for depression and anxiety flare ups.

         Response at 1 (quoting Complaint ¶ 70, at 17), and paragraph 71, wherein Darr states that she “‘again filed a grievance about her interim evaluation being retaliatory for her protected activity and exercising her rights under Family Medical Leave and disability laws after [NM Game & Fish Human Resources Director Angelica] Ruiz rejected her prior grievance. Performance issues were raised regarding the period while Ms. Darr was on Family Medical Leave, '” Response at 2 (quoting Complaint ¶ 71, at 17). NM Game & Fish adds that Darr also “specifically references the FMLA or her authorized Family Medical Leave” in paragraphs 51-52, 57, 67, 70-71, 75, 76, 90, 97, and 123-25. Response at 2. These references, according to NM Game & Fish, “establish that a trier of fact must determine whether Defendant interfered with Plaintiff's Family Medical Leave by criticizing Plaintiff for missing a deadline and by writing an unsatisfactory evaluation, for which she filed a FMLA-based grievance” and thereby “raise a question of interpretation and application of the FMLA, a federal statute.” Response at 2.

         According to NM Game & Fish, “the Court must determine whether the Defendant interfered with Darr's FMLA rights and whether the Defendant retaliated against Darr for exercising her FMLA rights, ” because both claims “are causes of action recognized only in federal law.” Response at 4. Moreover, NM Game & Fish asserts, although Darr “intentionally excluded any FMLA interference and/or FMLA retaliation claims in her Complaint in an attempt to make it appear as though there are no federal questions in this case, ” “the aptly named” artful-pleading doctrine[2] forecloses her ability to avoid federal court. Response at 4. Federal-question jurisdiction is proper, NM Game & Fish argues, because Darr's state-law claims “turn on the interpretation of Plaintiff's allegations of FMLA retaliation since retaliation is a core component of Plaintiff's claims against Defendant.” Response at 5.

         NM Game & Fish adds that removal is also appropriate, because a jury will need further information regarding how Darr exercised her FMLA rights: “A jury would not be able to determine the facts as alleged without receiving an instruction regarding the meaning of Plaintiff's Family Medical Leave rights, which demonstrates the presence of a significant federal question in this case.” Response at 5. According to NM Game & Fish, if Darr testifies, for example, that NM Game & Fish “chastised” her “for missing a deadline while she was out on authorized FMLA leave, . . . the court will have to explain to the jury what Plaintiff's rights were under FMLA, ” which “involves interpretation and application of a federal statute.” Response at 5. Moreover, NM Game & Fish asserts, the Court will need to decide whether Darr's “first submission of FMLA certification paperwork operated as notice to the Defendant that she was suffering retaliation, ” which NM Game & Fish contends that Darr's Complaint asserts in paragraphs 52, 57, and 67. Response at 5.

         3.The Reply.

         Darr replies to the Response. See Plaintiff's Reply to Defendant's Response to Opposed Motion for Remand and Memorandum in Support, filed August 7, 2018 (Doc. 14)(“Reply”). Darr contends that her receipt of family medical leave benefits “does not create a federal question under the four-prong test announced in Grable [& Sons Metal Products, Inc. v. Darue Engineering & Manufacturing], ” 545 U.S. 308, (2005)(“Grable”). Reply at 1. Moreover, Darr asserts that, in Gunn v. Minton, 568 U.S. 251 (2013), the Supreme Court of the United States narrowed the four-prong Grable test when it noted that, absent a federal cause of action, “only a ‘slim category of cases'” qualify for removal. Reply at 1 (quoting Gunn v. Minton, 568 U.S. at 258). Darr adds that NM Game & Fish “has the burden of proof to show the four-part test from Grable established federal question jurisdiction to allow removal, ” Reply at 2 (citing Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013)), and that NM Game & Fish must also show that “the causes of action Plaintiff's states ‘arise under' the U.S. Constitution or federal law, . . . [and] also appear on the face of a ‘well-pleaded complaint, '” Reply at 2 (citing Franchise Tax Bd. v. Constr. Laborers, 463 U.S. 1, 9-10 (1983)). Darr insists that NM Game & Fish not only does not carry its burden of proof, but also asserts neither a federal defense to Darr's state-law claims nor a counterclaim involving federal law. See Reply at 2. Darr repeats her argument that, because the FMLA allows for concurrent jurisdiction, “there is no preemption of claims.” Reply at 2. Furthermore, Darr disputes NM Game & Fish's contention that she “‘has alleged facts giving rise to claims under the Family and Medical Leave Act, '” because “the face of the Complaint” neither alleges federal law violations nor state law claims that require the Court to resolve federal law issues. Reply at 2-3.

         Darr directs the Court to federal court cases which demonstrate, according to Darr, that remand is appropriate here. Darr argues, for example, that in Laul v. Los Alamos National Security, LLC, No. CIV 16-1386 MV/JHR, 2018 WL 3216054 (D.N.M. May 31, 2018)(Ritter, M.J.), report and recommendation adopted, No. CV 16-1386 MV/JHR, 2018 WL 3209402 (D.N.M. June 29, 2018)(Vázquez, J.), ), the Honorable Jerry Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico, concludes that a lease provision which required interpretation under federal law and the defendant's alleged “national security interests” were unpersuasive removal arguments, because “the United States was not a party to the lease and . . . ‘a contractual dispute between two potential subcontractors on a government procurement contract does not implicate a uniquely federal interest unless the United States is exposed to some potential loss.'” Reply at 3-4 (quoting Laul v. Los Alamos Nat'l Sec., LLC, 2018 WL 3216054, at *2). Additionally, in Gallup Med Flight, LLC v. Builders Trust of New Mexico, 240 F.Supp.3d 1161 (D.N.M. 2017)(Browning, J.), the Court remanded a case to state court, because, according to Darr, “the contract in dispute was not about the interpretation of the federal law governing and regulating air ambulances.” Reply at 4 (citing Gallup Med Flight, LLC v. Builders Tr. of N.M., 240 F.Supp.3d at 1231). Darr contends that the Honorable Judith C. Herrera, United States District Judge for the United States District Court for the District of New Mexico, rejected federal jurisdiction in New Mexico ex rel. Balderas v. Purdue Pharma L.P., 323 F.Supp.3d 1242 (D.N.M. 2018)(Herrera, J.), when the State of New Mexico Office of the Attorney General “sued opioid manufactures for violations of the New Mexico statutes for public nuisance, Medicare Fraud, Fraud against the Taxpayer Act as well as the state and the federal Controlled Substances Act, ” despite alleged federal law violations, because federal law was not essential to each claim. Reply at 4 (citing New Mexico ex rel. Balderas v. Purdue Pharma L.P., 323 F.Supp.3d at 1252). Judge Herrera added, according to Darr, that federal court jurisdiction does not obtain unless “state law duties . . . ‘hinge exclusively on federal law.'” Reply at 4 (quoting New Mexico ex rel. Balderas v. Purdue Pharma L.P., 323 F.Supp.3d at 1253). Judge Herrera concluded, Darr contends, that to hold otherwise “would result in a ‘horde of original filings and removal cases raising other state claims with embedded federal issues.'” Reply at 5 (quoting New Mexico ex rel. Balderas v. Purdue Pharma L.P., 323 F.Supp.3d at 1253). Based on her analysis of this caselaw, Darr urges the Court to recognize “the limited nature of removal to federal court under the Grable holding.” Reply at 5.

         Darr next repeats her argument that her receipt of FMLA leave is not in dispute here and that the Complaint mentions the FMLA merely to provide “but one example of protected activity that is a statutory predicate for retaliation under state claims asserted.” Reply at 5. Darr adds that, should the Court conclude that mere reference to FMLA leave is sufficient to trigger federal jurisdiction, the Court would effect “a ‘federalization' of garden variety state law claims when there is not a uniquely federal aspect of the case, ” and thereby “subject the federal courts to more removal actions.” Reply at 5 (quoting Grable, 545 U.S. at 318-19). Darr maintains that “[p]roviding background factual information is not the same as alleging a federal law violation, ” and therefore, because there is no “serious federal interest that requires the protection of . . . a federal forum, ” the Court should grant the Motion. Reply at 6.

         4.The Hearing.

         The Court began the hearing by stating that “just references to the family . . . medical leave act is not going to probably be enough to constitute a [federal] question.” See Draft Transcript of Hearing at 2:24-3:1 (taken September 25, 2018)(“Tr.”)(Court).[3] The Court added, however, that it would

like to get a feel for . . . the real facts here involving the family leave act. If it's just references in the complaint and they're saying look[] she took family leave and she got discriminated against or something like that I'm not sure that's going to be . . . a substantial federal question. But if the c[ourt] or the jury is going to have to decide some . . . true Family Medical Leave Act issues, if there are going to be some federal issues to decide the[n] I think it gets a little more of a federal issue. But if all she's going to come in and say you know, I took family leave act, and there was some retaliation and I'm just bring[ing] my claims under the state law, then I'm not sure I see a substantial federal question here, and this may need to go[] back to the state.

Tr. at 3:1-17 (Court). In response, Darr stated that the facts which involve the FMLA are not contested, because NM Game & Fish afforded Darr FMLA benefits. See Tr. at 3:21-4:2 (Garrity). Darr added that she “could have easily written the complaint . . . using protected time off benefits instead of family medical act.” Tr. at 4:4-6 (Garrity).

         The Court then asked Darr what she intends to tell the jury about the FMLA, see Tr. at 4:9-15 (Court), to which Darr responded: “There really isn't a federal portion of this . . . because the Family Medical Leave Act serves as an example [of] protected activity, and it's part of the entire hostile work environment and retaliatory work environment we intend to prove in terms of violations of state law, ” Tr. at 4:16-21 (Garrity). The Court inquired whether all Darr intends to say to the jury is that she “took some protected activity[, o]ne of which is . . . some family medical leave time.” Tr. at 4:22-25 (Court). Darr responded that the FMLA “is really the jump off point for . . . what led to the disability discrimination.” Tr. at 5:3-6 (Garrity). In response, the Court asked whether Darr is pleading a claim under the Americans with Disabilities Act, 42 U.S.C. § 12101. See Tr. at 5:14-15 (Court). Darr replied in the negative and added that she is alleging that NM Game & Fish “did not do enough in the reasonable accommodation interactive process[;] it only held one me[eting.] . . . [W]e're not alleging that there is any kind of interference or retaliation under the family medical leave a[ct.]” Tr. at 5:16-19 (Garrity). Darr added that “the family medical leave packet identified a temporary disabling condition that we believe the Department of [G]ame and [F]ish then mishandled” pursuant to the NMHRA. Tr. at 5:19-6:3 (Garrity).

         The Court then asked Darr whether she could “think of any FMLA claim” that would compel the Court “to have to write any opinion or a portion of an opinion that's going to have to decide any federal issue, ” Tr. at 6:4-7 (Court), and Darr responded in the negative, see Tr. at 6:8 s(Garrity). Darr then elaborated on the facts supporting her claim:

She presented her medical information [and] the Department of [G]ame and [F]ish decided that she suffered from a seri[ous] medical condition and provided her with intermittent FM[LA] le[ave.] [S]o what happened in November and December of 2017 was th[at] Ms. Darr continued to ask and request for an interactive accommodation process that's protected under our disability law under the New Mexico Human Rights act. So we're not arguing that there was some kind of interference with her claim for family medical le[ave] nor are we arguing that there was any kind of retaliation, because she . . . availed herself of that benefit. We're saying the discrimination piece of our complaint occurred when the . . . discussion was not properly conducted in terms of subsequent meetings. There was just one me[eting], and then . . . a rejection of purchasing a tape recorder, and after that . . . it shifted into the game and fish department not protect[ing] Ms. Darr's work environments and then causing the constructive discharge in January of 2018.

Tr. at 6:10-7:9 (Garrity). Darr insisted that the Supreme Court's decision in Grable illustrates that removal is appropriate only when the case turns on a substantial question of federal law, and that a presumption against removal exists for claims not asserted under a federal statute, the Constitution of the United States, or a federal treaty. See Tr. at 7:11-24 (Garrity). Here, Darr averred, NM Game & Fish has not asserted the requisite jurisdictional facts to support its removal petition. See Tr. at 7:25-8:4 (Garrity).

         The Court next inquired whether Darr is “going to be in any way telling the jury or telling me that there were violations of the FM[L]A, ” Tr. at 8:10-12 (Court), to which Darr responded in the negative, see Tr. at 8:13 (Garrity). The Court sought additional confirmation from Darr that the FMLA is “just not a part of your case, ” Tr. at 8:14 (Court), and Darr replied: “Correct, ” Tr. at 8:15 (Garrity). The Court then asked: if counsel for NM Game & Fish “were to send you over an interrogatory saying . . . are you alleging any violations of the FM[LA, ] you'd sign that and s[end] it back to him . . . saying no?” Tr. at 8:16-19 (Court). Darr responded: “Correct, we would do that. Because there simply aren't claims un[der] the Family Medical Leave Act.” Tr. at 8:20-22 (Garrity). Darr added that, because she is seeking exclusively state law remedies, “all we have to do is Ms. Darr would take the stand and say yes I was receiving Family Medical Leave Act benefit. But we're not going to have any testimony that the benefit was somehow interfered with.” Tr. at 9:6-11 (Garrity). Darr summarized her state law retaliation and discrimination claims, see Tr. at 9:17-10:9 (Garrity), and then insisted that she is “not trying to . . . pull a fast one in terms of embedding some kind of federal issue and pretending it doesn't exist, ” Tr. at 10:10-12 (Garrity).

         The Court queried whether the FMLA is, according to Darr, “the only federal act or federal issue that the defendant has identified as being a federal claim or issue that justifies removal.” Tr. at 11:6-9 (Court). Darr responded in the affirmative, and then attributed NM Game & Fish's characterization of her claims to a misreading of the Complaint, because the Complaint merely asserts that she took intermittent FMLA leave based on a serious medical condition and that the NM Game & Fish thereafter discriminated against her in various ways, to include not accommodating her disability. See Tr. at 11:14-12:13 (Garrity).

         The Court asked: “Are you going to have any expert, any witness turn to that jury and tell them anything about the FMLA . . . . You know . . [, ] . . . explain to them how it works or any sort of issue, ” Tr. at 13:10-13 (Court), and Darr replied: “I don't think so, Your Honor, because it's really not in dispute. Ms. Darr received the be[nefit].” Tr. at 13:14-15 (Garrity). The Court then inquired whether Darr could “think of any jury instruction, anything I'm going to have [to give] to help the jury . . . so that they []under[stand the] case? Am I going to have to give them any jury instruction about the FMLA.” Tr. at 13:25-14:4 (Court). Darr stated:

I don't think so. Again, Your Honor, simply because we're not disputing that the benefit was received. There might be a jury instruction that relate[s] to protected activity[:] If . . . [the] jury believe[s] that Ms. Darr engaged in protected activity and then listing the receipt of Family Medical Leave Act as one of those protected activities . . . . That could be part of the jury instruction I could anticipate that . . . could be listed as one of the areas of protected activity for Ms. Darr. But . . . you're not actually going to have to resolve any substantive issue with the Family Medical Leave Act.

Tr. at 14:5-20 (Garrity).

         NM Game & Fish defended against the Motion by first asserting that Grable and United States Court of Appeals for the Tenth Circuit caselaw, to include the Court's opinion in Edwards-Flynn v. Yara, No. CIV. 08-0186 JB/ACT, 2009 WL 1292485 (D.N.M. March 9, 2009)(Browning, J), suggest that removal is appropriate in this case. See Tr. at 15:3-13 (Williams). NM Game & Fish argued that the Motion's first page says “that Ms. Darr has pled only causes of action under state law and raised certain allegations of retaliation in violation of FMLA, ” which, according to NM Game & Fish, concedes that Darr is bringing a retaliation claim under the FMLA. Tr. at 15:13-20 (Williams). NM Game & Fish acknowledged that the Complaint's face asserts only state-law claims but insisted that four of the five state law claims, “are based entirely on claims of interference or ret[aliation] . . . based on the family medical leave a[ct], ” which “provides for a claim for retaliation and interference with FMLA rights.” Tr. at 16:13-24 (Williams).

         The Court then inquired whether having “in your hand a document that says we are not alleging in this case, we will never tell the jury, we'll never tell the Court that the department violated the FMLA, doesn't that just eliminate basically federal issues in this case?” Tr. at 17:2-7 (Court). NM Game & Fish responded that “it will eliminate virtually the entire case.” Tr. at 17:8-9 (Williams). The Court expressed that, regardless whether a state court would dismiss the case absent federal issues, an answer to an interrogatory from Darr which says that she is not going to tell the jury that NM Game & Fish violated the FMLA or any federal law would seem to the Court to eliminate “any sort of federal issue . . . whether it's significant or not.” Tr. at 17:10-18. The Court added that, because Darr is not bringing an FMLA claim, the Court is, through this suggestion, seeking to protect NM Game & Fish from Darr returning to state court and alleging that, although she has not brought a claim under the FMLA, NM Game & Fish nevertheless violated the FMLA. See Tr. at 18:1-10 (Court).

         NM Game & Fish then directed the Court to paragraph 67 of Darr's Complaint, which, according to NM Game & Fish, “says that Ms. Darr provided recertification information to one of the game and fish officials to allow her family and medical le[ave] due to her disability related to depression and anxiety, ” and thereby concedes that Darr “is disabled per the Family Medical Leave Act.” Tr. at 18:16-24 (Williams). The Court informed NM Game & Fish that “the FM[L]A is not going to disable someone.” Tr. at 19:1-2 (Court). NM Game & Fish agreed with the Court but added that the FMLA is the basis for Darr's disability claims, and that the Complaint's reference to the FMLA facts as “predicate facts” is significant, because “a predicate is the basis for an assertion.” Tr. at 19:3-11 (Williams). As further support for its position, NM Game & Fish directed the Court to paragraph 70 of Darr's Complaint, which, according to NM Game & Fish, says that, after Darr reported her disability to NM Game & Fish, her supervisor “continued his retaliation by chas[tising] Ms. Darr over a missed d[ead]line that occurred while Ms. Darr was on family medical leave, ” and to paragraph 71, which states, according to NM Game & Fish, that “performance issues were raised regarding the period while she was on family medical le[ave].” Tr. at 19:25-20:6 (Williams).

         The Court then analogized the case to a hypothetical wherein the plaintiff received federal social security benefits and referenced the benefits in the Complaint, for example, to mitigate damages, which struck the Court as predicate facts similar to those that Darr's FMLA references assert; “part of her story is she took FMLA or . . . welfare benefits or food stamps . . . . [I]t's part of story that's federal but it's not really part of issues that we've got to decide in this case.” Tr. at 20:13-21:2 (Court). NM Game & Fish disagreed with the Court's hypothetical, because in this case, according to NM Game & Fish, the Court is going to have to decide whether Darr is disabled under the Family Medical Leave Act; “otherwise there is no case.” Tr. at 21:3-11 (Williams). Without the “15 paragraphs” that reference the FMLA, NM Game & Fish added, “there is no predicate and no basis for the state court claims.” Tr. at 21:16-18 (Williams).

         The Court asked NM Game & Fish for the specific instruction that it would have to give to the jury, or the specific issue that it would have to decide on a motion to dismiss or on a motion for summary judgment. See Tr. at 21:25-22:5 (Court). NM Game & Fish responded that the Court will have to decide: (i) whether Darr was disabled under the FMLA; (ii) whether, if Darr was disabled under the FMLA, NM Game & Fish retaliated against her because of her disability; and (iii) whether NM Game & Fish interfered with Darr's FMLA rights. See Tr. at 22:5-10 (Williams). The Court asked why, on the first issue, it would need to decide whether Darr was disabled under the FMLA when Darr is saying that NM Game & Fish “was very fair [--] they gave me FMLA leave, they did what they were supposed to do.” Tr. at 22:13-17 (Court). NM Game & Fish responded:

Well, . . . the plaintiff's claim is that the New Mexico [G]ame and [F]ish department . . . retaliated against her for exercising rights under the Family Medical Leave Act. And we believe the jury would have to decide does she . . . have rights under the Family Medical Leave Act in the first place and then were any actions of the game and fish department retaliation against her on account of those rights or did they interfere with those [rights] as opposed to any other claim of retaliation.

Tr. at 22:20-23:5 (Williams). NM Game & Fish added that the Tenth Circuit has drafted pattern jury instructions to help a jury decide whether a disabled person suffered retaliation, on which the Court would need to instruct here, because, under Grable and in accord with other federal courts that have considered whether federal question jurisdiction is appropriate, Darr's state law claims implicate significant federal issues. See Tr. at 23:14-24:12 (Williams). NM Game & Fish directed the Court to the Complaint's retaliation and interference claims under the Whistleblower Protection Act as an example of Darr's state law claims' dependency on the FMLA, because the predicate for those claims is that Darr exercised her FMLA rights. See Tr. at 24:15-22 (Williams). Darr's claim under the FPWA, NM Game & Fish asserted, is her only claim that does not implicate a significant federal issue. See Tr. at 25:1-17 (Williams).

         The Court presented NM Game & Fish with a second hypothetical:

[T]he State of New Mexico could set up a statute that said something like this. If you retaliate somebody for exercising their Title VII rights, so they're clearly going into the EEOC and filing a Human Rights act claim under Title VII, . . . if you do that we as the State of New Mexico are going to deem that protected conduct under the New Mexico Human Rights a[ct] and so that . . . person could just bring a Human Rights act claim [under] state law. [B]ut say that you go and file a . . . Title VII action that's protect[ed] conduct and that wouldn't make the state claim a federal claim.

Tr. at 26:8-22 (Court). NM Game & Fish stated that it would agree with the Court's hypothetical “if that was the only b[are] allegation about the federal claim, ” but argued that here Darr has alleged FMLA violations in 15 paragraphs and describes these violations as the predicate basis for her claims. Tr. at 26:23-27:4 (Williams). The Court expressed that the quantity of FMLA references is immaterial to whether Darr has alleged a state law violation, see Tr. at 27:10-15 (Court), and NM Game & Fish responded that, unlike the Court's hypothetical, the FMLA references are so woven throughout the entire case that the Court will have to wade deep into federal disability law to provide context for each interference and retaliation claim, see Tr. at 27:16-28:14 (Williams).

         The Court asked NM Game & Fish whether it agreed that an admission from Darr which states that she is not raising a retaliation issue under the FMLA would remove the federal issue from the case and leave only the state law retaliation claims. See Tr. at 28:17-24 (Court). NM Game & Fish responded that such an answer essentially would dismiss the entire case. See Tr. at 28:25-29:4 (Williams).

         The Court stated that, because Darr has not made an FMLA claim, the Court must decide whether there is an FMLA issue, which it is “grasping to see, ” and therefore asked NM Game & Fish what it would say regarding the federal issue were it to draft an opinion keeping the case in federal court. See Tr. at 29:16-30 (Court). NM Game & Fish responded that it would say that the Complaint specifically alleges that NM Game & Fish retaliated against Darr because she exercised her FMLA rights, as, for example, paragraphs 67 through 71, evidence. See Tr. at 30:2-10 (Williams). The Court then asked NM Game & Fish what it would like to see in the Court's Memorandum Opinion and Order if the Court grants the Motion, i.e., what language would prevent Darr from reneging on her concessions. See Tr. at 30:21-24 (Court). NM Game & Fish responded that it would say that Darr

has made an admission that there is no claim of any sort for retaliation or interference under the FM[LA] . . . and . . . p[ara]graphs 67 through 71 and then also 51, 52, 57, 75, 76, 9[0] . . . 97, 123, 124 and 125 of the complaint should be deleted because in all those paragraphs that's exactly what's . . . claimed but if they're not in there anymore then . . . the state court could . . . deal with what's left.

Tr. at 31:11-24 (Williams). The Court asked Darr how much of NM Game & Fish's proposed language she is willing to adopt. See Tr. at 32:7 (Court). In response, Darr disputed NM Game & Fish's FMLA-issue characterization, because, according to Darr, she used the “predicate facts phrase” merely to tell her story, which includes her taking family medical leave. Tr. at 32:8-12 (Garrity). Darr then explained that “family medical leave” describes only a serious medical condition, and not necessarily a disability, and might not be a disabling condition under the NMHRA. Tr. at 32:12-17 (Garrity). Hence, Darr's position is that she “suffered a temporary disability while she was receiving intermittent family medical leave and the discrimination occurred because of the failure to accommodate and the pretext for declaring an undue hardship by the New Mexico game and dish department.” Tr. at ...


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