Einess v. Tresco, Inc.

• Decision Date: 26 August 2014
• Docket Number: No. CIV 14–0140 JB/SMV.,CIV 14–0140 JB/SMV.
• Court: U.S. District Court — District of New Mexico
• Parties: Lisa EINESS, Plaintiff, v. TRESCO, INC., Defendant.

44 F.Supp.3d 1082

Lisa EINESS, Plaintiff

v.TRESCO, INC., Defendant.

No. CIV 14–0140 JB/SMV.

United States District Court, D. New Mexico.

Filed Aug. 26, 2014.

Dennis L. Richard, Law Office of Dennis L. Richard, El Paso, TX, for Plaintiff.

John K. Ziegler, Alisa Wigley–Delara, Conklin, Woodcock & Ziegler, PC, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Tresco, Inc.'s Motion to Dismiss Claims of Retaliation Under the New Mexico Human Rights Act, Retaliatory Discharge at Common Law, and Constructive Discharge and Consolidated Memorandum Brief in Support of Motion to Dismiss, filed February 18, 2014 (Doc. 5)(“MTD”). The Court held a hearing on July 15, 2014. The primary issue is whether Plaintiff Lisa Einess has alleged a plausible common-law claim of retaliatory discharge against Defendant Tresco, Inc. The Court concludes that she has not and will thus dismiss her retaliatory discharge claim. Retaliatory discharge requires either that the plaintiff was fired or that she was constructively discharged, meaning that she was subject to “working conditions so intolerable, when viewed objectively, that a reasonable person would be compelled to resign.” Gormley v. Coca–Cola Enters., 2005–NMSC–003, ¶ 10, 137 N.M. 192, 195, 109 P.3d 280, 283 (citation omitted) (“Essentially, a plaintiff must show that she had no other choice but to quit.” (quoting Yearous v. Niobrara Cnty. Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir.1997) )). Einess was not fired, but rather resigned, and the only difficult working conditions she alleges are being passed over for a $0.50/hour raise¹ and $600.00 bonus, and being called in for an unspecified number of meetings and training sessions during her leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2612 (“FMLA”). See Complaint for Discrimination, Retaliation and Violations of the New Mexico Human Rights Act and Appeal from Order of Nondetermination and Violations of the Family Medical Leave Act (FMLA), 29 U.S.C. Section 2615(A)(1) at ¶¶ 3.3–3.4, at 2 –3, filed in state court January 14, 2014, removed to federal court February 14, 2014 (Doc. 1, at 3–7)² (“Complaint”). The conditions alleged fall short of those required for constructive discharge, and the Court will thus dismiss the claim for retaliatory discharge. Tresco, Inc. also moves for dismissal of Einess' claim for retaliation in violation of the New Mexico Human Rights Act, N.M. Stat. Ann. § 28–1–1 to –14 (“NMHRA”). Einess conceded dismissal of that claim at the hearing, and so the Court will dismiss it, as well. The Court therefore grants the MTD in its entirety.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, as it must at the motion-to-dismiss stage. The Complaint's allegations are succinct and somewhat conclusory, and the Court will repeat them in their entirety here rather than risk missing something:

Einess[ ] is a residen[t] of Las Cruces, New Mexico.

... Tresco[ ] is a 501(c)3 non-profit organization funded through public and private sources including state and federal funds, grants and individual donations....

Einess was employed by Tresco as a Community Living Specialist for 12 years. Einess was a capable employee and a hard worker for Tresco.

On or about September 18, 2013, Einess was suspended by Steve Galuska and Joel Jaime for advocating for two disabled individuals. The two clients of Tresco were being moved from their home after having lived there for 14 years. Tresco promised them another home where they could continue to be together. However, since two other Tresco clients had died, Tresco decided they would be moved into that home. The fact that these clients had done so well together and had done so for 14 years did not matter to Tresco so they were placed in separate homes. Tresco failed to mention the separation to the clients. Einess went to her supervisors, Galuska and Jaime, and advocated for these two clients but Tresco CEO, Pam Lillibridge, stated that since it was her business to provide services for them, they would have to be placed wherever she wanted them to reside.

It was after having advocated for the Tresco clients that Einess was harassed and retaliated against by four male employees of Tresco, Supervisors Scott Geyer, Gerald Lopez, Joel Jaime, and Steve Galuska. These supervisors would call Einess in for meetings while she was on FMLA and would fail to show up for the meetings. She was given training classes to complete in one day when those classes would have taken two working days. She was repeatedly called while on FMLA to come in and work or for the training classes.

Another form of discrimination and retaliation by Tresco against Einess was that while all employees of Tresco were asked to sign paperwork in the Human Resources Department regarding a $.50 raise and a $600.00 bonus for each, Einess was the only employee not notified or given the raise and bonus.

On October 9, 2013, after the constant harassment, retaliation, and disruption of her FMLA, Einess had no other choice but to resign. No reasonable person in Plaintiff's position would continue to subject themselves to the harassment and discrimination that Einess endured. Plaintiff was constructively discharged.

Complaint ¶¶ 1.1–1.2, at 1; id. ¶¶ 3.1–3.5, at 2–3.

PROCEDURAL BACKGROUND

Einess filed suit in the Third Judicial District Court of New Mexico, County of Doña Ana, State of New Mexico, on January 14, 2014, see Complaint at 1, and Tresco, Inc. removed the action to federal court one month later, see Defendant's Notice of Removal, filed February 14, 2014 (Doc. 1, at 1–2). The Court cannot tell exactly what causes of action Einess alleges. Specifically, the Court cannot determine (i) whether Einess is alleging that Tresco, Inc. retaliated against her only for her advocacy for the two disabled individuals, or whether they also retaliated against her for taking FMLA leave; and (ii) whether each claim is brought under the NMHRA, the FMLA, or even Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–1 to –17 (“Title VII”). The Court will therefore once again quote the entire claims section of the Complaint to avoid mischaracterizing Einess' causes of action:

The actions of Tresco constitute discrimination against Einess in violation of the New Mexico Human Rights Act.

The actions of Tresco constitute intentional retaliation against Einess because she opposed the discrimination being perpetrated by Joel Jaime, Assistant Manager, Gerald Lopez, Scott Geyer, Department Manager, and Steve Galuska, CLS Supervisor, on behalf of Tresco.

The foregoing conduct by Tresco and its managers, Joel Jaime, Scott Geyer, Gerald Lopez, and Steve Galuska, acting in the course and scope of their management authority for Tresco, amounts to retaliation against Plaintiff for opposing discrimination against disabled clients of Tresco and violations of FMLA. The conduct of Tresco violates the New Mexico Human Rights Act and as a consequence violates the public policy of the State of New Mexico.

Complaint ¶¶ 4.1–4.3, at 3–4.

Although the Federal Rules of Civil Procedure counsel plaintiffs to plead each cause of action in a separate paragraph—advice that most plaintiffs who come before the Court generally heed—the Court believes that Einess has alleged more than three claims. See Fed.R.Civ.P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.... If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.”). The Court concludes that Einess alleges four causes of action: (i) discrimination in violation of the NMHRA, see Complaint ¶ 4.1, at 3; (ii) retaliation in violation of the NMHRA, see Complaint ¶ 4.3, at 3–4; (iii) retaliation in violation of the FMLA, see Complaint ¶ 4.3, at 3–4; and (iv) common-law retaliatory discharge by way of constructive discharge, see Complaint ¶ 4.2, at 3. Tresco, Inc. frames these four claims—it splits retaliatory discharge into two causes of action, one for “[r]etaliatory [d]ischarge” and another for “[c]onstructive discharge,” e.g., MTD at 2—as being an exclusive list of Einess' claims, and Einess never objects to this characterization.

Einess alleges that she has exhausted her administrative remedies before the United States Equal Employment Opportunity Commission (“EEOC”) and the Human Rights Division of the New Mexico Department of Labor (“NMHRD”), obtaining an “Order of Nondetermination” from the NMHRD. Complaint ¶¶ 6.1–6.2, at 4–5. She does not allege how or if the EEOC resolved her claim. She seeks damages for lost wages and benefits, and for emotional distress, as well as punitive damages and “liquidated damages,” Complaint ¶¶ 5.1–5.2, at 4, and seeks pre-and post-judgment interest on all damages, see Complaint ¶ 7.1, at 5.

For its part, Tresco, Inc. admits that Einess was, “at times,” a capable and hard worker for Tresco, and that “two consumers of Tresco's died and two consumers were moved,” but denies the rest of the factual allegations in the Complaint. Defendant's Answer to Plaintiff's Complaint, filed February 19, 2014 (Doc. 7)(“Answer”). In addition to its general denial of Einess' allegations, it asserts fourteen defenses not at issue here. See Answer at 3–5.

Tresco, Inc. filed its MTD four days after removing the case, seeking to dismiss Einess' claims of retaliation in violation of the NMHRA, common-law retaliatory discharge, and common-law constructive discharge.See MTD at 2. After briefly outlining the rule 12(b)(6) standard, see MTD at 2–3, Tresco, Inc. argues for dismissal of the NMHRA retaliation claim, see MTD at 3–6. As Einess later conceded that claim, the Court will not discuss those arguments here. See Transcript of Hearing at 2:22–3:5 (taken July 15, 2014)(“Tr.”)³ (Richard, Court, Delara).

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