Hunter-Delaho v. Triple S. Tower, Inc.

Decision Date26 July 2021
Docket NumberCiv. No. 20-77 WJ/GBW
CourtU.S. District Court — District of New Mexico

THIS MATTER comes before the Court upon Defendants' Motion for Summary Judgment, filed March 29, 2021 (Doc. 41). Having reviewed the parties' briefing and the applicable law, the Court finds that Defendants' motion is well-taken and, therefore, is granted.


This is a de novo appeal of the decision issued by the Human Rights Bureau on the Plaintiff's Complaint of Violation of the New Mexico Human Rights Act based on her allegation of a termination of employment after reporting a serious medical condition, pursuant to N.M.S.A. 1978 § 28-1-13 ("NMHRA"). Plaintiff was hired in February of 2013 by Triple S. Tower ("Triple S"), Inc. a local operating company or subsidiary of Microwave Transmission Systems, Inc. ("MTSI") as on office manager on or about February 15, 2013.1

Plaintiff alleges that she was terminated in mid-April 2017 on the basis of her medical condition—a kidney cyst—on the pretext that the company was downsizing and laying offemployees. Both Defendants contend that Plaintiff did not have either a serious medical condition or physical handicap while employed by Defendant Triple S Tower, Inc. ("Triple S"), that Triple S never failed to accommodate Plaintiff, and that Plaintiff's termination was for legitimate, non-discriminatory reasons. Defendant MTSI further contends that Plaintiff has no claim against it because it was not Plaintiff's employer and because Plaintiff never filed a charge against it with the New Mexico Human Rights Bureau, thus failing to exhaust prerequisite procedures.

The complaint consists of a single count of discrimination under the NMHRA, alleging that Plaintiff was the victim of illegal discrimination based her serious medical condition, a Bosniak II cyst, and has been the victim of disparate discipline and treatment in the workplace. According to the pleadings, a Bosniak II cyst is kidney cyst that can sometimes be pre-cancerous. Doc. 41, ¶¶9-10; Doc. 46 at 12-13; Doc. 41-2 (Mouchette Dep.) at 12:4-8 (describing as kidney cysts "that can be premalignant").

Plaintiff filed the complaint in state court on October 25, 2019 in the 3rd Judicial District, Dona Aña County, New Mexico, and Defendants removed the case to federal court on January 27, 2020 on the basis of diversity jurisdiction, 28 U.S.C. §1332(c)(1). The complaint describes defendant corporations as New Mexico businesses, which of course does not offer a basis for diversity jurisdiction. On removal Defendants state that the principal place of business for both Defendants has been and remains in Texas since 2017, see Doc. 1-2 (Spurlin Decl.) & Doc. 3 (Ans.), ¶4, and Plaintiff appears to have conceded to facts stating that Defendants are Texas corporations—which does provide a basis for federal diversity jurisdiction in this case. See Doc. 12 (Jt. Status Rep't) at 2 (stipulating to federal jurisdiction in District of New Mexico).

The Court will apply New Mexico law as the substantive law of this case. Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency, 123 F.3d 1351, 1352-53 (10th Cir. 1997) (federal courtsitting in diversity must apply the substantive law of the state in which it sits).

A. Plaintiff's Medical Condition

Triple S Tower ("Triple S") hired Plaintiff in February 2013. Plaintiff worked as an office clerical employee and at times material to this lawsuit, Plaintiff served as an office manager for Triple S.

In January 2017 Plaintiff began to experience symptoms of illness. She felt bloated and had to use the bathroom frequently. She had no energy and felt "drained." Plaintiff consulted her health care provider, nurse practitioner Yvonne Mouchette ("Mouchette"), on April 11, 2017, complaining of abdominal pain. Mouchette referred Plaintiff for a CT scan, which revealed that Plaintiff had a right renal lesion. Mouchette contacted Plaintiff to relay that the study was inconclusive and that an MRI needed to be conducted. Based on the MRI, Mouchette diagnosed Plaintiff as having a benign Bosniak cyst. These cysts can be pre-cancerous. Plaintiff's cyst was categorized as a Category II cyst, meaning that it was mild to moderate. Plaintiff does not dispute how the cyst was categorized, except to point out that it had the potential of becoming more severe. See Pltff's Resp. to Defts' Fact 10. Plaintiff's cyst is checked yearly, but it has stayed within normal limits.

Plaintiff's condition had no effect on her kidney or bowel functions, although Nurse Practitioner Mouchette testified that it could have a connection to the pain she was experiencing. Defts' Ex. 1 at 12-14. No medical accommodations or restrictions were necessary as a result of the Bosniak cyst. Plaintiff does not dispute that she was able to work without restrictions at that time andwas not impaired; and the cyst had no substantial effect on Plaintiff's everyday activities. Plaintiff was not prescribed any medication for the cyst. Plaintiff claims that the cyst had impacted her daily life because of pain in her kidney area from sitting for long periods of the day, yet at the same time states that she never requested or needed any accommodations in her job to address the discomfort because the cyst had no effect on her ability to perform her job duties. Defts' Ex. 1 at 127:17-128:1, 51:8-11 ("I had no problems performing my duties"; "I didn't have any limitations. Just uncomfortable sitting long times and the need to go to the bathroom a lot.").

Plaintiff admits that Shawn Blair, her immediate supervisor and Vice President of Triple S, showed no hostility when she informed him of her diagnosis. In fact, she stated that Blair was "very comforting" and offered to do "anything" to help. He assured her that her job was safe and that she had nothing to worry about. Pltff's Ex. 1 at 53:1-12. Plaintiff also stated that Blair never denied her the right to take time off when she did not feel well or expressed any frustration with her for being sick. Pltff's Ex. 1 at 121:17-122:6.

B. Plaintiff's Termination

In April 2017, Triple S' financial condition was precarious, owing large sums of money to its parent company, Microwave. In order to address that condition, President and CEO of Triple S, David Spurlin, "made a recommendation" to Blair that Plaintiff be eliminated in order to reduce office overhead and have office staff of Microwave perform the office functions instead. Spurlin's intention was "to cut Triple S Tower's overhead as much as possible and to focus on performing work in the field for paying clients." Defts' Ex. 3, ¶3. At the time Spurlin made this recommendation he had no information about Plaintiff's medical condition. Blair accepted Spurlin's "recommendation" and terminated Plaintiff's employment. Defts' Ex. 3 (Spurlin Decl.), ¶¶5-6. Plaintiff summarily "disputes" these facts, but her own evidence undercuts her objections. Most importantly, she concedes that Spurlin knew nothing about her medical condition at the time of her termination. Her sole challengeto these facts is to the characterization of her termination by Blair as a "recommendation," claiming that Blair actually had no choice but to fire her because of Spurlin's position in the company—which also does not advance her position in the end.

C. Plaintiff's Additional "Undisputed Material Facts"

Plaintiff offers her own set of facts (Facts 28-52) in the response.

1. Facts Related to Administrative Hearing

Defendants contend that Facts 34-40 relate to findings by the Human Rights Commission and so should not be considered by the Court, and the Court agrees. Under NMSA 1978 § 28-1-13(A) & (C), a party aggrieved by an order of the Commission is entitled to a trial de novo in the district court before a jury. The New Mexico Supreme Court has held that in providing for a trial de novo, the legislature intended to grant an aggrieved party a full evidentiary hearing "not limited to or constricted by the administrative record." Contreras v. Miller Bonded, Inc., 2014-NMCA-011, ¶ 37, 316 P.3d 202, 212. The findings of the Commission or the Hearing Officer who conducted the administrative hearing therefore have no effect and Plaintiff cannot use those findings to bolster her position in this lawsuit or to create disputes of fact. Id. (holding that findings made by an administrative agency have no collateral estoppel effect on an action filed under the NMHRA, which grants a right to bring a "trial de novo" in the district court); see also Gonzales v. New Mexico Dep't of Health, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550 (evidence regarding the HRC's determination was not admissible in the district court because admission of such evidence might well have sidetracked the trial into an evaluation of the merits of that decision rather than focusing on the issues at trial).3

2. Plaintiff's Remaining Additional Facts

Defendants contend that the remainder of Plaintiff's Additional Facts (Facts 28-33 and 41-52) all prove to be immaterial to the issue of whether Plaintiff was terminated because of her disability. For example, Plaintiff states that she disclosed her medical condition to "Defendants" prior to her termination, but the evidence she submits indicates that she spoke only to Blair about her diagnosis. See Pltff's Add'l Fact 28, referring to Pltff's Ex. A at 74:14-18 ("He's the first person I came and told that the doctor said cancer").4 This fact is immaterial to Plaintiff's claim, because it is undisputed there was no evidence of any communication between Blair and Spurlin regarding Plaintiff's condition prior to her termination and that Spurlin (not Blair) was solely responsible for the decision to terminate Plaintiff.

Plaintiff also states that she was previously investigated at the workplace for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT