Been v. New Mexico Dep't of Info. Tech.

• Decision Date: 30 September 2011
• Docket Number: Case No. 6:09–cv–00726 MV/WDS.
• Citation: 815 F.Supp.2d 1222
• Parties: Kimberly BEEN, Plaintiff, v. NEW MEXICO DEPARTMENT OF INFORMATION TECHNOLOGY (“DoIT”), et al., Defendants.
• Court: U.S. District Court — District of New Mexico

815 F.Supp.2d 1222

Kimberly BEEN, Plaintiff,

v.NEW MEXICO DEPARTMENT OF INFORMATION TECHNOLOGY (“DoIT”), et al., Defendants.

Case No. 6:09–cv–00726 MV/WDS.

United States District Court, D. New Mexico.

Sept. 30, 2011.

Linda G. Hemphill, Esq., Paul W. Grace, Esq., Diane M. Garrity, Esq., for Plaintiff.

M. Karen Kilgore, Esq., for Defendants.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, District Judge.

THIS MATTER comes before the Court on the Supplemental Brief on Defendants' Motion for Partial Judgment on the Pleadings [Doc. 120], Defendants' Motion for Summary Judgment as to DoIT [Doc. 95], Plaintiff's Motion for Partial Summary Judgment on Count IV [Doc. 93], Defendants' Motion for Summary Judgment as to Individual Defendants Pearl Rudolph, Elise Storie, Michael Martinez and Gloria Lucero [Doc. 97], Plaintiff's Motion to Strike [Doc. 106], and Plaintiff's Motion for Sanctions Against Defendants for Discovery Abuse [Doc. 89]. The Court, having considered the motions, briefs, relevant law and being otherwise fully informed, finds that: Defendants' Motion for Partial Judgment on the Pleadings is well-taken and will be GRANTED; Defendants' Motion for Summary Judgment as to DoIT is not well-taken and will be DENIED; Plaintiff's Motion for Partial Summary Judgment on Count IV is not well-taken and will be DENIED; Defendants' Motion for Summary Judgment as to Individual Defendants Pearl Rudolph, Elise Storie, Michael Martinez and Gloria Lucero is well-taken in part and will be GRANTED in part and DENIED in part; Plaintiff's Motion to Strike will be DENIED as moot; and Plaintiff's Motion for Sanctions Against Defendants for Discovery Abuse is not well-taken and will be DENIED.

BACKGROUND

In or about January 2007, Plaintiff was a non-probationary employee of the Child Support Division of the New Mexico Human Services Department (“HSD”). Doc. 96 at 4. Also in or about January 2007, Plaintiff interviewed for, and was offered a job with the New Mexico General Services Department (“GSD”). A GSD Form 1–Personnel Action Request (“PAR”) was approved and dated January 31, 2007, indicating that Plaintiff would be “transferring” from HSD to GSD. Doc. 105, Ex. 2. The “effective date of the request” is typed into the PAR as February 10, 2007, but that date is crossed out and changed by hand to February 24, 2007. Id.

Plaintiff accepted the job offer with GSD, and thereafter, on February 7, 2007, submitted a written notice of resignation from HSD, stating as follows: “This memo is to inform you that I am resigning my position with the Child Support Enforcement Division. My last day will be February 14, 2007.” Doc. 96, Ex. D (emphasis in original). Plaintiff's first day at GSD was February 26, 2007, although her employment with GSD became effective February 24, 2007. Doc. 96 at 4. When she was hired by GSD, Plaintiff was not provided with or asked to sign a form acknowledging the terms and conditions of her appointment. Doc. 105, Ex. 1 at ¶ 3.

Plaintiff's supervisor at GSD, Kelly Mentzer, believed that Plaintiff was a transfer, non-probationary employee, and treated her accordingly. Doc. 105, Ex. 3 at 58–60. On or about March 2, 2007, Gloria Lucero, a GSD Human Resource Specialist, sent an email message to Donna Lopez at HSD asking her to process the action of Plaintiff's “Transfer/Reduction in Band” from HSD to GSD. Doc. 96, Ex. F. Lopez sent Lucero a response stating that this action would have to be processed as a rehire, as Plaintiff terminated with HSD effective February 15, 2007. Id. Lucero then sent an email message to David Berry at the New Mexico State Personnel Office and asked him to enter the “rehire of former HSD employee Kimberly Bowen” as soon as possible. Id.

On July 1, 2007, DoIT was created, and, effective that day, Plaintiff transferred from GSD to DoIT. Doc. 96 at 5. Initially upon the transfer, Plaintiff continued to be supervised by Mentzer. Doc. 94, Ex. A at ¶ 5. In mid-July 2007, Plaintiff was reassigned to Deputy Cabinet Secretary Elisa Storie's area to assist her while another employee was out on leave under the Family Medical Leave Act (“FMLA”). Id. at ¶ 6. For the remainder of her employment at DoIT, Plaintiff reported to Storie and Michael Martinez, Director of the CNA Division ¹ of DoIT. Id. at ¶ 7.

On or about July 27, 2007, Plaintiff learned that she was pregnant and told both Storie and Martinez. Doc. 105 at 9. Almost immediately, she began to experience pregnancy-related complications, including nausea, vomiting, acid reflux and bleeding. Id. On August 9, 2007, Plaintiff requested from Pearl Rudolph, Human Resources Bureau Chief for DoIT, the forms necessary to apply for FMLA leave. Doc. 94 at 5. Later that same day, Rudolph sent Plaintiff a medical certification form via email mail. Id. at 5. DoIT did not provide any other documentation or information to Plaintiff in connection with the requirements for FMLA benefits. Id.

On August 10, 2007, Plaintiff sent Martinez an email message stating, “I have an appointment with my doctor again this morning at 9:00 a.m. I will fax my FMLA leave papers today or drop them off depending on how I feel.” Id., Ex. I. On August 13, 2007, Plaintiff sent Martinez another email message stating, “I am still really sick ... I did get my FMLA leave form filled out by Dr. Brown on Friday.” Doc. 94, Ex. J. On August 21, 2007, Plaintiff sent Martinez and Storie an email message, stating, “I am going to the Emergency Room this morning ... Please e-mail or call me with the fax number for HR. I can fax over my FMLA forms and Doctor's excuse.” Doc. 94, Ex. K. After Martinez sent her the fax number, Plaintiff sent another email message thanking him for the fax number to HR, and asking, “If I fax my FMLA leave papers is it possible that I can get some time for my leave?” Id.

Plaintiff had submitted the FMLA medical certification form to her obstetrician, Dr. William Brown, on August 10, 2007, the day after she received it from Rudolph. Doc. 94, Ex. A at ¶ 16. Shortly after Dr. Brown's office returned the completed form to her, however, she realized that they had completed the form to certify Plaintiff's need for leave for delivery of the baby the following spring, rather than her immediate need for leave due to her current pregnancy complications. Id. Accordingly, Plaintiff submitted a second, blank form to Dr. Brown's office for completion. When she asked about the status of the form, Dr. Brown's office advised that they were very busy and that the individual responsible for completing such forms was out on vacation. Id.

Plaintiff was absent from work from August 1, 2007 through August 28, 2007. Doc. 96 at 5. The “Leave Request and Approval Policy” set forth in the GSD Administrative Manual then in effect at DoIT provides in relevant part:

Employees must request any and all types of leave in advance. Sick leave for unanticipated medical condition or illness must be reported by an employee to his/her immediate supervisor or designee within established time frames but, in any event, no later than one-half hour after the start of the work day unless there are circumstances that prevent the notification (i.e. car accident).

Employees must indicate how long they will be absent so that work assignments can be planned. Employees, who are not on approved leave, must call in each day they are absent, unless otherwise authorized by their supervisor. Supervisors or their designee must approve or disapprove all request for leave. Any unapproved absence is considered absence without leave and just cause for which disciplinary action may be taken.

Doc. 96, Ex. P (emphasis in original). Additionally, the “Code of Conduct” set forth in the same Manual provides: “AWOL: Employees absent without leave for five consecutive days are considered to have abandoned their jobs and are subject to dismissal in accordance with Department policy and SPB rules.” Doc. 111, attachment to Ex. A.

According to Defendants, Plaintiff sporadically called or emailed during her absence, but did not call in on a timely basis or receive approval for all of her absences as required by these policies, and thus was absent without leave, or “AWOL.” Doc. 96 at 5–7, Ex. E at ¶ 4. On the other hand, Plaintiff contends that she complied with the relevant policies during her absence by calling and/or emailing one or more of her supervisors on a regular basis. Specifically, Plaintiff states:

During August 2007, I emailed, and used cell phones and land lines to call in sick to my supervisors, Elisa Storie and Michael Martinez and did this to cover every single day I was away from the office. I made calls or sent emails early in the morning within a half hour or so of the work start time. I told them I was very sick and could not come to work and tried to describe how I was feeling the best I could. I would try to come in, but would become violently ill and was unable [to] make it in. Ms. Storie and Mr. Martinez never told me that I was not following the correct call-in process or that the information I gave them was not complete. I thought that I was to be on approved leave status. No one told me or sent a letter to me telling me otherwise.

Ms. Storie and Mr. Martinez never told me that I was being placed on AWOL or that my job was at risk. They never called me or sent an email asking for additional information about my health. I never failed to contact them, email or leave messages for five consecutive days.

Doc. 105, Ex. 1 at ¶¶ 7–8. Cell phone records for August 2007 document some telephone calls to DoIT. Doc. 94, attachment to Ex. A. In an email to Rudolph on August 27, 2007, Storie reported, “Kim did contact me via phone one day and sent me e-mails and a couple of voice mails. I did not keep track of the dates.” Doc. 94, Ex. L.

Rudolph sent Plaintiff a Notice of Termination letter, which is dated August 28, 2007 but indicates that the termination is effective as of August 31, 2007. Specifically, the...