1998 -NMSC- 51, Kitchell v. Public Service Co. of New Mexico

• Decision Date: 03 December 1998
• Docket Number: No. 24,080,24,080
• Citation: 972 P.2d 344,126 N.M. 525,1998 NMSC 51
• Parties: , 1998 -NMSC- 51 Lee Roy KITCHELL, Plaintiff-Appellee, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 344

972 P.2d 344

126 N.M. 525, 1998 -NMSC- 51

Lee Roy KITCHELL, Plaintiff-Appellee, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellant.

No. 24,080.

Supreme Court of New Mexico.

Dec. 3, 1998.

Keleher & McLeod, P.A., Robert C. Conklin, Thomas C. Bird, Albuquerque, for appellant.

Titus & Murphy, Victor A. Titus, Farmington, for appellee.

OPINION

McKINNON, J.

¶1 This interlocutory appeal raises three issues relating to the termination of the employment of plaintiff-appellee Lee Roy Kitchell with defendant-appellant Public Service Company of New Mexico ("PNM"). ¹ The issues concern each of three counts in Kitchell's complaint, and the denial by the trial court as to each count of PNM's motion for summary judgment. The complaint presents these legal arguments: 1) that an employee, totally disabled by a work-related injury, can be considered "otherwise qualified" to work and therefore bring an employment discrimination suit under the New Mexico Human Rights Act, NMSA 1978, § 28-1-7(A) (1995); 2) that an employer who is self-insured for workers' compensation and who maintains a self-funded health indemnity plan for employees is subject to suit under the New Mexico Unfair Insurance Practices Act, NMSA 1978, §§ 59A-16-1 to -30 (1984, as amended through 1997); and 3) that an action for prima facie tort is possible where an employer terminates an employee and stops his health benefits because the employee is disabled due to a job-related injury. We reverse the trial court as to all three counts.

¶2 Kitchell had been a power plant mechanic at PNM's San Juan Generating Station. After being employed for eight and a half years, on April 6, 1989, he was hospitalized with severe eczema contracted as a result of the working conditions at his job. From the time of his disability, Kitchell has received social security benefits and workers' compensation. On August 9, 1991, he filed a workers' compensation claim for permanent total disability benefits. He also received benefits under PNM's self-funded health indemnity plan from the time of his disability until March of 1992, when his employment was terminated. His complaint is based on the alleged wrongfulness of the termination of these company health benefits.

¶3 "The extreme remedy of summary judgment must be used with caution." Rummel v. St. Paul Surplus Lines Ins. Co., 1997-NMSC-042, p 9, 123 N.M. 767, 945 P.2d 985. "Where there is a question as to any issue of material fact, summary judgment is inappropriate." Id. "In reviewing the grant or denial of summary judgment, this Court considers the undisputed facts, and determines whether under those facts summary judgment was proper as a matter of law." Id.

¶4 Count I of Kitchell's complaint alleges that he was discharged and his health benefits terminated in violation of the Human Rights Act, Section 28-1-7, which provides in relevant part:

It is an unlawful discriminatory practice for: A. an employer, unless based on a bona fide occupational qualification, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition ....

(Emphasis added). Kitchell claims he was discharged and discriminated against because of his physical handicap/serious medical condition when his employment and health benefits were terminated because of the total disability he incurred on the job. PNM claims he is not "otherwise qualified" as required because he is totally disabled. Furthermore, PNM points out that Kitchell has claimed total disability for purposes of receiving workers' compensation (and, apparently, social security) and is therefore judicially estopped from claiming that he is "otherwise qualified" under the Human Rights Act. Kitchell counters that an employer should not be permitted to essentially cause the disability of a worker and then be allowed to cut off health benefits.

¶5 In the typical employment discrimination case, the plaintiff has the initial burden of showing: "(1) that he or she is a member of a protected class; (2) that he or she was qualified to continue employment; (3) that his or her employment was terminated; and (4) that his or her position was filled by someone not in the protected class." Martinez v. Yellow Freight Sys., Inc., 113 N.M. 366, 368, 826 P.2d 962, 964 (1992) (footnote omitted). However, "[a] prima facie case may also be made out through other means; not all factual situations will fit into any one type of analysis, although unlawful discrimination may nevertheless be present." Smith v. FDC Corp., 109 N.M. 514, 518, 787 P.2d 433, 437 (1990). Whatever analysis is used, the statute here requires that the plaintiff show he or she was "otherwise qualified" for the employment, and indeed that is the only Martinez element at issue here.

¶6 The term "otherwise qualified" refers to a person who, though affected by a handicap or medical condition, maintains the underlying ability to do the job. Construing a similar statute, the Montana Supreme Court said:

Taken literally, "otherwise qualified" could be defined to include those persons who would be able to meet the particular requirements of a particular program "but for" the limitations imposed by their handicaps. The Supreme Court [, Southeastern Community College v. Davis, 442 U.S. 397, 406-07, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979) ], however, expressly disapproved of such an interpretation because of the absurd results that would be produced. "Under such a literal reading, a blind person possessing all the qualifications for driving a bus except sight could be said to be 'otherwise qualified' for the job of driving. Clearly such a result was not intended by Congress." The Supreme Court instead defined an otherwise qualified person as "one who is able to meet all of the program's requirements in spite of his handicap." (Emphasis in original.)

Hafner v. Conoco, Inc., 268 Mont. 396, 886 P.2d 947, 951 (1994) (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.1993)). In Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 769 (8th Cir.1987), a teacher became hospitalized and unable to work due to pressures on the job. After a period of time, she was denied salary continuation and health and dental benefits. She sued under § 504 of the Rehabilitation Act of 1973, which prohibited discrimination against "otherwise qualified handicapped individuals" by recipients of federal financial aid. Id. at 770. The court discussed Southeastern Community College, and concluded:

Thus both the language of the statute and its interpretation by the Supreme Court indicate that section 504 was designed to prohibit discrimination within the ambit of an employment relationship in which the employee is potentially able to do the job in question. Though it may seem undesirable to discriminate against a handicapped employee who is no longer able to do his or her job, this sort of discrimination is simply not within the protection of Section 504.

Id. at 771 (emphasis added).

¶7 PNM argues that Kitchell is judicially estopped, based on his workers' compensation claim, from asserting that he is "otherwise qualified." We need not adopt a per se rule of judicial estoppel in order to resolve this case. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 n. 3 (9th Cir.1996). Kitchell admitted in his worker's compensation claim that his injury prevented him "from engaging, for remuneration or profit, in any occupation for which he is or becomes fitted by age, training, or experience." NMSA 1978, § 52-1-25(A) (1987, prior to 1991 amendment). As a result, Kitchell has admitted that he is not "otherwise qualified," and there is no evidence raising a reasonable doubt as to the existence of a genuine issue of material fact on this point.

¶8 Kitchell argues that it is fundamentally unfair when an employer who is responsible for a worker's disability is permitted to terminate the worker and end company benefits. To the extent that this may be true, we do not believe the Human Rights Act was designed to provide a remedy in such a case, as the above authorities demonstrate. Kitchell is concerned not so much with his "human" rights--one of which is the freedom from discrimination in employment--as with his "employee" rights, specifically how a totally disabled employee is to be treated. That territory is covered by workers' compensation and social security laws. See Madrid v. St. Joseph Hosp., 1996-NMSC-064, p 12, 122 N.M. 524, 928 P.2d 250, ("The Act is intended only to prevent the worker from becoming a public charge....) Since Kitchell is barred as a matter of law from recovery under the Human Rights Act, the denial of summary judgment as to the first count of his complaint is reversed.

¶9 The second count in Kitchell's complaint alleges that PNM was an insurer within the meaning of the New Mexico Unfair Insurance Practices Act, NMSA 1978, § 59A-16-1 et seq. (1984), and that by terminating his health benefits it practiced "unfair discrimination between insureds" in benefits payable, contrary to NMSA 1978, § 59A-16-17D (1984). He therefore seeks a private remedy as allowed under NMSA 1978, § 59A-16-30 (1990). Kitchell points out that PNM is "self-insured" in two relevant areas--workers' compensation and workers' health benefits--and argues that an entity which is self-insured is an insurer for purposes of the Act. PNM in turn relies on Levi Strauss & Co. v. N.M. Property & Cas. Ins. Guaranty Assn. (In re Mission Ins. Co.), 112 N.M. 433, 436-37, 816 P.2d 502, 505-06 (1991), where we held that an entity self-insured for workers' compensation is not an insurer within the meaning of the Insurance Code, NMSA 1978, § 59A-1-8(A) (1984) (defining "insurer" as "every person engaged as principal and as indemnitor, surety...