Hunt v. Cent. Consol. Sch. Dist.

• Decision Date: 12 June 2013
• Docket Number: No. CIV 11–1144 JB/WDS.,CIV 11–1144 JB/WDS.
• Citation: 951 F.Supp.2d 1136
• Parties: Jeffrey HUNT and Alice Ulibarri, Plaintiffs, v. CENTRAL CONSOLIDATED SCHOOL DISTRICT, a municipal government agency, and Hoskie Benally, Ed Marquez, Don Levinsky, Nancy Frazinni, Matthew Tso, Scott Nicolay and Phil Kaspar, Individually, Defendants.
• Court: U.S. District Court — District of New Mexico

951 F.Supp.2d 1136

Jeffrey HUNT and Alice Ulibarri, Plaintiffs,

v.CENTRAL CONSOLIDATED SCHOOL DISTRICT, a municipal government agency, and Hoskie Benally, Ed Marquez, Don Levinsky, Nancy Frazinni, Matthew Tso, Scott Nicolay and Phil Kaspar, Individually, Defendants.

No. CIV 11–1144 JB/WDS.

United States District Court,

D. New Mexico.

June 12, 2013.

George T. Geran, Santa Fe, NM, for the Plaintiffs.

Elizabeth L. German, Ethan Watson, Mary Keleher Castle, German & Associates LLC, Albuquerque, NM, for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendants' Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity, filed October 15, 2012 (Doc. 27)(“Motion to Dismiss”). The Court held a hearing on January 31, 2013. The primary issues are: (i) whether Defendant Central Consolidated School District (“CCSD”) is an improper party, because the CCSD School Board only, not the CCSD, can sue and be sued under New Mexico Law; (ii) whether Plaintiffs Jeffrey Hunt's and Alice Ulibarri's Second Amended Complaint for Damages and Declaratory Judgment, filed September 12, 2012 (Doc. 24)(“Complaint”), asserts any claims based on Hunt's alleged disability; (iii) whether the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2654 (“FMLA”), permits the CCSD to require the Plaintiffs to use their FMLA leave concurrently with their paid sick leave; (iv) whether the Plaintiffs state a claim pursuant to 42 U.S.C. § 1983 against the CCSD, because the Complaint makes plausible that a CCSD policy or custom was the moving force behind an equal-protection violation when CCSD, as part of a pretextual CCSD restructuring, reassigned the Plaintiffs because they are Mormon or Anglo; (v) whether the individual Defendants are plausibly liable under 42 U.S.C. § 1985(3) for conspiring to violate the Plaintiffs' Equal Protection Clause rights by discriminating against them because of their race or religion; (vi) whether the CCSD, and Defendants Ed Marquez, Don Levinski, and Nancy Frazzini, are plausibly liable under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e–17 (“Title VII”), based on theories of disparate impact or treatment, retaliation, hostile work environment, or constructive termination, because they discriminated against the Plaintiffs based on their race or religion; (vii) whether the CCSD is liable for breach of contract, and for the breach of the covenant of good faith and fair dealing, because it breached the Plaintiffs' employment contracts by allegedly demoting them because of their race or religion; (viii) whether the CCSD is liable for any alleged torts, including common-law conspiracy, tortious interference with contract, and negligent operation of a school building, because the factual allegations make plausible that the CCSD caused the Plaintiffs physical damage; (ix) whether the CCSD is liable to the Plaintiffs under the New Mexico Fraud Against Taxpayers Act, N.M.S.A.1978, §§ 44–9–1 to –14 (“FATA”), because the FATA waives New Mexico's sovereign immunity, and because the Defendants plausibly violated the FATA; and (x) whether the alleged pretextual demotion by the CCSD, Frazzini, Marquez, and Levinski plausibly subjects them to liability under the New Mexico Human Rights Act, N.M.S.A.1978, §§ 28–1–1 to –14 (“NMHRA”). The Court will grant in part and deny in part the Motion to Dismiss. The Court will dismiss Counts V, VI, VII, and IX, but will not dismiss Counts I, II, III, IV, VIII, or X. The Court concludes that CCSD is a proper party, and will not dismiss any claims against the CCSD or require the Plaintiffs to amend their Complaint to allege their claims against the CCSD School Board. Second, the Court concludes that there are no plausible disability claims alleged in the Complaint in any form, and that none of the causes of action are based upon Hunt's alleged disability. Third, the FMLA permits the CCSD, in accordance with their policies, to require the Plaintiffs to take their paid leave concurrently with their FMLA leave. In relation to the federal causes of action, the Court concludes that the Plaintiffs plausibly state that, on the disparate-treatment discrimination basis only, the CCSD violated Title VII by demoting them because of Mormon religion. Similarly, the Court concludes that the § 1983 claim against the CCSD and § 1985(3) claim against all Defendants based on anti-Mormon discrimination is also plausible. The Court will dismiss Counts VI, and VII, and IX—the tortious-interference claim, the common-law-conspiracy claim, and the negligent-building-operation claim—because they sound in tort and, based on the Plaintiffs' allegations, the State of New Mexico has not waived tort immunity for these claims. The Court will also dismiss the FATA claim in Count V, because the Plaintiffs' allegations do not plausibly show that FATA entitles them to relief. The Court will allow the Plaintiffs' NMHRA claim, like their Title VII, to proceed only on the disparate-treatment discrimination basis. Because the Court believes that the Plaintiffs can cure technical errors in their Complaint to allege plausible claims to the extent that they are based on Anglo discrimination, the Court will grant the Plaintiffs leave to amend the Complaint to make those amendments.

FACTUAL BACKGROUND

For purposes of the Motion to Dismiss, the Court and the Defendants take the Plaintiffs' allegations in the Complaint as true. The Defendants reserve the right, however, to challenge the veracity of the Plaintiffs' allegations. See Motion to Dismiss at 2 n. 4.

This case involves an employment dispute arising out of an administrative restructuring of CCSD, which is located in northwestern New Mexico, in San Juan County. See Complaint ¶ 3, at 2. Both Hunt and Ulibarri are Anglo and Mormon. See Complaint ¶¶ 1–2, at 1–2. Defendant Phil Kasper is the CCSD Director of Human Resources.¹See Complaint ¶ 10, at 8–9. The CCSD Board President is Matthew Tso. See Complaint ¶ 7, at 5. Defendant Scott Nicolay was a CCSD employee and Tso's campaign manager. See Complaint ¶ 9, at 7–8. Defendant Hoskie Benally is a CCSD Board member. See Complaint ¶ 8, at 6.

Both Plaintiffs signed a one-year employment contract in July 2011. See Complaint ¶ 38, at 23. Hunt and Ulibarri were supervisory employees for the CCSD in July 2011, when they learned of the restructuring and that they were to be reassigned to different positions as a result of the restructuring. See Complaint ¶ 17, at 12–13. Hunt alleges that Defendants Acting Superintendent Don Levinski and Acting Operations Director Ed Marquez told him that he was to be reassigned from the position of Transportation Director to that of Transportation Coordinator. See Complaint ¶¶ 4–5, at 2–4; id. ¶¶ 16–17, at 12–13. For disciplinary reasons, he was then assigned to a Grounds Maintenance worker position. See Complaint ¶ 17, at 12–13.

As to Frazzini, the CCSD Human Resources Director, the Plaintiffs allege that “no one wanted to tell Plaintiff Ulibarri of the demotion, and that Defendant Frazzini had been selected to do so over her objection.” Complaint ¶ 30, at 19. Frazzini told Ulibarri that her job as Custodial Supervisor was to be eliminated. See Complaint ¶ 30, at 19. Even though they were being assigned to different positions, their salaries would not be reduced for the duration of their current contract term. See Complaint ¶¶ 17, 30, at 12–13, 19–20. The Defendants allege that the CCSD restructuring disproportionately affected Mormon and Anglo supervisors. Out of ten director positions which were downgraded, four were held by Anglo Mormons, one by an American Indian Mormon, four by non-Mormon Anglos, and one by a non-Mormon Hispanic. See Complaint ¶ 18, at 13.

Hunt initially wanted to work in his newly assigned position, but changed his mind, because he was concerned about the physical stress negatively affecting his diabetes and neuropathy. See Complaint ¶¶ 19–20, at 13–14. He was concerned about the risks to his health that the “extremely physical position” caused, and believed that he was inexperienced and lacked training. Complaint ¶¶ 20, at 13–14. Immediately after the July 2011 meeting, Hunt took sick leave, never returning to work, because of stress related to the new job and his concerns about safety. See Complaint ¶ 20, at 14. Voicing his concerns about his position to Frazzini, Frazzini and Marquez told Hunt to take his accrued sick leave concurrently with his leave under the FMLA. See Complaint ¶¶ 21–22, at 14–15. Hunt contends that this request was wrongful and deprived him of his accrued sick leave. See Complaint ¶¶ 21–22, at 14–15. Additionally, Hunt alleges, in paragraphs 24 and 25 of the Complaint, that on September 15, 2011, he informed the CCSD that he was entitled to “reasonable accommodation” and, on October 20, 2011, wrote again, asking that a reasonable accommodation negotiation be held. Complaint ¶¶ 24–25, at 15–16. Hunt resigned on February 24, 2012, without returning to work. See Complaint ¶¶ 27–28, at 17–18.

After Frazzini notified Ulibarri that she was being reassigned from Custodial Supervisor, but before being assigned a permanentposition, Ulibarri worked at temporary jobs with the CCSD. See Complaint ¶¶ 29–30, 33–34, at 18–19, 20–21. After learning of her job reassignments, Ulibarri told Frazzini that she needed extensive dental surgery. See Complaint ¶ 33, at 20. They discussed Ulibarri taking sick and FMLA leave; during this discussion, Frazzini suggested that Ulibarri could take leave and then retire. See Complaint ¶ 33, at 20–21. Frazzini, and subsequently Marquez, told Ulibarri that she had to use her sick leave and FMLA leave concurrently, and that she could use only sixty days of her accrued sick leave. See Complaint ¶ 33, at 20–21. Ulibarri was assigned to a permanent position as Payroll and Housing Clerk about three or four...