Darr v. New Mex. Dep't of Game & Fish

• Decision Date: 30 August 2019
• Docket Number: No. CIV 18-0672 JB\SCY,CIV 18-0672 JB\SCY
• Citation: 403 F.Supp.3d 967
• Parties: Margaret DARR, Plaintiff, v. NEW MEXICO DEPARTMENT OF GAME AND FISH, Defendant.
• Court: U.S. District Court — District of New Mexico

403 F.Supp.3d 967

Margaret DARR, Plaintiff,

v.NEW MEXICO DEPARTMENT OF GAME AND FISH, Defendant.

No. CIV 18-0672 JB\SCY

United States District Court, D. New Mexico.

Filed August 30, 2019

Rosario D. Vega Lynn, Vega Lynn Law Offices, LLC, Albuquerque, New Mexico and Diane Garrity, Serra & Garrity, P.C., Santa Fe, New Mexico, Attorneys for the Plaintiff

Stephen M. Williams, Paula G. Maynes, Miller Stratvert PA, Santa Fe, New Mexico, Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

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, 126 S.Ct. 2121, 165 L.Ed.2d 131 (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,...