Rivero v. Bd. of Regents of the Univ. of N.M., No. 18-2158

• Decision Date: 24 February 2020
• Docket Number: No. 18-2158
• Parties: Dennis P. RIVERO, M.D., Plaintiff - Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO, d/b/a University of New Mexico Health Sciences Center, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

950 F.3d 754

Dennis P. RIVERO, M.D., Plaintiff - Appellant,

v.BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO, d/b/a University of New Mexico Health Sciences Center, Defendant - Appellee.

No. 18-2158

United States Court of Appeals, Tenth Circuit.

FILED February 24, 2020

Eric D. Norvell, Eric D. Norvell, Attorney, P.A., Carlsbad, California, argued on behalf of the Appellant.

Lawrence M. Marcus (Alfred A. Park, with him on the brief), Park & Associates, L.L.C., Albuquerque, New Mexico, argued on behalf of the Appellee.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Dr. Dennis P. Rivero appeals the summary judgment awarded the University of New Mexico Board of Regents (Defendant) by the United States District Court for the District of New Mexico. He also challenges the district court’s denial of his motion to recuse the district judge under 28 U.S.C. § 455. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Dr. Rivero’s claim that he was required to submit to psychiatric examinations in violation of the Rehabilitation Act is barred as untimely. His claim that he was constructively discharged in violation of the Act fails because the evidence he presented did not support a claim that his working conditions were objectively intolerable. And we reject his recusal arguments on the ground that he has failed to challenge the district court’s ruling that his motion to recuse was untimely.

I. BACKGROUND

Dr. Rivero was employed full-time by the University of New Mexico Hospital (UNMH) from 1992 until early 2007, when he voluntarily decreased his workload to one day per month while he worked full-time in Oklahoma. After several months on this schedule, Dr. Rivero asked the chair of the UNMH orthopedics department, Dr. Robert Schenck, if he could return to full-time or three-quarter-time employment. For several years nothing came of this request, and Dr. Rivero continued to work in Oklahoma while spending only one day per month performing surgeries at UNMH. Then, in December 2010, Dr. Schenck and Dr. Rivero agreed that Dr. Rivero could gradually reach a three-quarter-time position if he complied with certain conditions. In particular, Dr. Rivero would "attend four counseling sessions" before his workload would be increased. Rivero v. Bd. of Regents of the Univ. of N.M. , No. CIV 16-0318 JB/SCY, 2019 WL 1085179, at *7 (D.N.M. March 7, 2019).

In February 2011, UNMH sent Dr. Rivero an addendum to his employment contract (the Addendum) to formalize the terms of the agreement. The Addendum described the counseling sessions as a "four-part psychiatric evaluation," required Dr. Rivero to submit progress reports from the psychiatrist to the department chair, and mandated Dr. Rivero’s resignation if he failed to comply with the psychiatrist’s treatment recommendations. Aplt. App., Vol. 1 at 37–38. Dr. Rivero was given until April 10 to sign the Addendum. He was "shocked by the requirements of the Addendum" and undertook "to investigate any support whatsoever for the requirement of a psychiatric investigation" by seeking access to his personnel files. Rivero , 2019 WL 1085179, at *9. The University refused to turn over his files and withdrew the Addendum about two weeks later. Dr. Rivero continued to work one day a month at UNMH.

After UNMH refused to let Dr. Rivero see his personnel files, he petitioned for a writ of mandamus in New Mexico state court on August 11, 2011, seeking an order that UNMH provide him access to the files. On August 12, 2013, the court ordered production of the files, and by January 2014 Dr. Rivero had received his complete files. He resigned from his position with UNMH on May 21. His letter of resignation explained: "Now that I know with certainty, upon review of all of the documents produced by UNMHSC, that there is nothing which could have warranted a psychiatric evaluation, or the other terms of the ‘Addendum,’ I can no longer work at an institution that has treated me in this manner." Aplt. App., Vol. 1 at 138.

Dr. Rivero unsuccessfully pursued relief with the Equal Employment Opportunity Commission (EEOC) by filing a complaint in January 2012. After receiving a right-to-sue letter from the Commission in January 2016, he filed the complaint in this case on April 19, 2016, alleging that UNMH violated the Rehabilitation Act by (1) requiring psychiatric evaluations and (2) constructively discharging him on the basis of a perceived disability. Both parties moved for summary judgment in early December 2017.

The district judge, who was assigned to the case in October 2017, disclosed in letters to the parties on January 23 and June 22, 2018, that he had several ties to the University of New Mexico. He asserted that he believed that he could be "fair and impartial" and neither party objected. Rivero , 2019 WL 1085179 at *24, 31. At the hearing on June 26, the judge stated that he intended to rule in favor of Defendant and would later issue an opinion. Dr. Rivero moved to recuse the judge on July 17. The district court entered summary judgment against Dr. Rivero and denied his motion to recuse on March 7, 2019.¹

II. DISCUSSION

A. Rehabilitation Act Claims

"We review de novo a grant of summary judgment, applying the same standard that governs the district court." Lauck v. Campbell Cty. , 627 F.3d 805, 809 (10th Cir. 2010). Summary judgment is appropriate when "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, makes it unlawful to discriminate solely on the basis of disability under any program or activity receiving federal financial assistance or conducted by a federal executive agency or the United States Postal Service. See 29 U.S.C. § 794(a). Whether § 504(a) has been violated by employment discrimination is to be determined using "the standards applied under title I of the Americans with Disabilities Act of 1990 [ (the ADA).]" 29 U.S.C. § 794(d).² Because the Rehabilitation Act incorporates standards from the ADA, "[c]ases decided under section 504 of the Rehabilitation Act are ... applicable to cases brought under the ADA and vice versa, except to the extent the ADA expressly states otherwise." Woodman v. Runyon , 132 F.3d 1330, 1339 n.8 (10th Cir. 1997).

1. Dr. Rivero’s Medical-Examination Claim

Defendant does not contest that one of the ADA provisions incorporated into the Rehabilitation Act is 42 U.S.C. § 12112(d)(4)(A), which states:

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

See Lee v. City of Columbus, Ohio , 636 F.3d 245, 252 (6th Cir. 2011) (This "limitation[ ] on the disclosure of medical information ... [is] incorporated by reference into the Rehabilitation Act."). The prohibitions in § 12112(d)(4) apply to all employees regardless of their disability status. See Roe v. Cheyenne Mountain Conference Resort, Inc. , 124 F.3d 1221, 1229 (10th Cir. 1997) ("[T]he ... challenge plaintiff has brought [for an unlawful medical inquiry under 42 U.S.C. § 12112(d)(4), see id . at 1226 ] does not require her to meet the statutory definition of a person with a disability."). To establish an unlawful-examination-or-inquiry claim, a plaintiff must show only "(1) that he is an employee of the defendant-employer, and (2) that the defendant-employer required him to undergo a medical examination or made a disability-related inquiry of him." Williams v. FedEx Corp. Servs. , 849 F.3d 889, 901 (10th Cir. 2017). "[I]f the plaintiff makes the required showing, the employer may avoid liability by demonstrating that the medical examination or disability-related inquiry was job-related and consistent with business necessity." Id.

Dr. Rivero claims that UNMH violated the Rehabilitation Act when it conditioned his future full-time employment on his being subjected to psychiatric examinations and treatment. The district court dismissed Dr. Rivero’s claim as untimely. It ruled that the limitations period for the claim was three years³ and that the claim accrued (so that the limitations period began to run) when Dr. Rivero knew or should have known of facts establishing the elements of a prima facie case. It determined that the evidence was undisputed that Dr. Rivero knew of the terms of the Addendum to his employment contract by March 9, 2011, when he sent an email requesting additional time to decide whether to agree to the terms. The limitations period therefore expired in March 2014, well before Dr. Rivero filed suit in April 2016.

Dr. Rivero does not dispute that the applicable limitations period is three years and that he was aware of the psychiatric-examination requirement in March 2011.⁴ Nor does he dispute that by March 2011 he had sufficient evidence to establish a prima facie case on the elements of an unlawful-medical-inquiry claim set forth in Williams .

Rather, what Dr. Rivero argues is that he had the burden to plead facts showing that there was no business-necessity justification for UNMH to require the psychiatric examination and treatment, and therefore his claim did not accrue until he had completed his investigation into whether UNMH had such a justification. Because that investigation was not completed until early 2014, when he received access to his personnel files and "understood" that there was no business-necessity justification for the psychiatric-examination requirement, he asserts that the three-year limitations period did not expire before 2017. Aplt. Br. at 27.

Our precedents foreclose this argument. As previously indicated, business necessity is an affirmative defense on which the employer has the burden of persuasion. See Williams , 849 F.3d at 901 ("[T]...