Otero v. New Mexico Corrections Dept.

• Decision Date: 09 June 2009
• Docket Number: No. 08-CV-907 JC/LFG.,08-CV-907 JC/LFG.
• Parties: James OTERO, Plaintiff, v. State of NEW MEXICO CORRECTIONS DEPARTMENT, Charlene Knipfing in her individual and official capabilities, David Jablonski in his individual and official capacities, Edward Gonzales in his individual and official capacities, Denis Porter in his individual and official capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

640 F.Supp.2d 1346

James OTERO, Plaintiff, v. State of NEW MEXICO CORRECTIONS DEPARTMENT, Charlene Knipfing in her individual and official capabilities, David Jablonski in his individual and official capacities, Edward Gonzales in his individual and official capacities, Denis Porter in his individual and official capacities, Defendants.

No. 08-CV-907 JC/LFG.

United States District Court, D. New Mexico.

June 9, 2009.

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James Otero, Santa Fe, NM, pro se.

Michael Dickman, Esq., Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN EDWARDS CONWAY, Senior District Judge.

THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment as to Counts I, II, III, IV and VI (Doc. 26), filed March 20, 2009 ("Motion"). The Court has reviewed the parties' briefing in this matter and, being otherwise informed in the premises, grants the Motion in part as set forth below.

I. BACKGROUND

Plaintiff James Otero brought suit against his employer, the State of New Mexico Department of Corrections ("Corrections Department"), and its Director of Probation & Parole (Charlene Knipfing), its Deputy Director of Probation & Parole David Jablonski, its Interstate Compact Administrator Edward Gonzales (who is also Plaintiffs supervisor), and its Education Bureau Programs Manager Denis Porter. Otero, who is still employed by the Corrections Department, contends that Defendants discriminated and retaliated against him because he is a veteran of the United States military (Counts I & II) and also because he is allegedly disabled with post-traumatic stress disorder, or PTSD (Count III). According to Plaintiff, Defendants' alleged actions also violate the New Mexico Human Rights Act (Count IV) and have allegedly created a hostile work environment (Count VI).

These allegations are based primarily upon the events of May 6-7, 2008. On May 6, Plaintiff attended a mandatory training led by Defendant Porter. Am. Complt. at ¶¶ 19 & 21. Rather than sit in his assigned seat, Plaintiff, who contends his assigned seat was full, sat at the back of the room with his back against the wall. Id. at ¶ 22. Plaintiff says he prefers to sit with his back to the wall since his return from active duty in Iraq. Id. Due to ongoing medical treatment that allegedly made his eyes sensitive to light, Plaintiff was also wearing sunglasses. Id. at ¶ 23. At some point during the training, Defendant Porter told Plaintiff he was being disruptive and called Defendants Jablonski and Knipfing for assistance. Id. at ¶¶ 25, 31-34. After speaking with Defendants Jablonski and Knipfing, Plaintiff contends he asked permission to leave for the day. Id. at ¶ 44.

The next day, May 7, 2008, Plaintiff contends that Jablonski posted a memo in the Corrections Department building that "resembled a fugitive posting" containing Plaintiff's photograph and information to the effect that Plaintiff was on administrative leave and was denied access to the premises. Id. at ¶¶ 46-48. The same day, Plaintiff was informed by Defendant Jablonski that he would be placed on administrative leave, that he was accused of "possible misconduct," and that he would be required to make daily phone calls to his supervisor, Defendant Gonzales. Id. at ¶¶ 50-52. Although Defendant Jablonski issued a letter of reprimand to Plaintiff on June 6, 2008, id. at ¶ 54, this letter was removed from Plaintiffs personnel file, which presently contains no documents reflecting the events of May 6-7, 2008, Resp. at 4 (admitting Defendant's undisputed material facts 26, 27, and 28).

Apart from these allegations, Plaintiff also claims generally that: (1) he "has repeatedly requested accommodations for his PTSD but Defendants have ignored him," id. at ¶ 55; (2) "Defendant Gonzales harasses [him] about his dress and hair on a regular basis," id. at ¶ 62; (3) Defendants have discussed his medical condition and employment matters in public, id. at ¶ 64; and (4) Defendants have denied his request to attend annual meetings of the Interstate Compact Commission as well as failed to inform him of training opportunities, id. at ¶¶ 65 & 67.

The Court has previously dismissed Plaintiff's allegations pursuant to 42 U.S.C. § 1983 for violations of his liberty and/or privacy rights. See Order Granting Defs.' Mot. For Summ. Jdgmt. As to Count V, filed April 22, 2008 (Doc. 46). The Court has also dismissed Plaintiff's tort claims in Counts VII through XII for failure to state a claim in that the Defendants are entitled to sovereign immunity for these claims. See Order Granting Defs.' Mot. For Summ. Jdgmt. As to Counts VII, VIII, IX, X, XI, and XII, filed April 1, 2009 (Doc. 38).

II. LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). A "genuine" issue of fact exists where the evidence is such that a reasonable jury could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In response to a motion for summary judgment, a party "may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." FED.R.CIV.P. 56(e)(2). The party opposing summary judgment must present specific, admissible facts from which a rational trier of fact could find in his favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the Court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. Adler at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202).

III. DISCUSSION

A. USERRA Discrimination (Count I)

The Uniformed Services Employment and Reemployment Rights Act ("USERRA") was enacted in part "to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). In addition to providing reemployment rights, USERRA also prohibits discrimination against members of the military. 38 U.S.C. § 4311.

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

38 U.S.C. § 4311(a).

For purposes of this statute the term "employer" is defined as "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities." 38 U.S.C. § 4303(4)(A). A state is specifically enumerated as an employer to whom USERRA applies. 38 U.S.C. § 4303(4)(A)(iii).

In analyzing USERRA discrimination claims, the Court utilizes the evidentiary scheme for cases arising under the National Labor Relations Act. Lewis v. Rite of Passage, Inc., 217 Fed.Appx. 785, 786 (10th Cir.2007). Initially, Plaintiff must prove "`by a preponderance of the evidence that [his or her] military service was a substantial or motivating factor in the adverse employment action.'" Id. (quoting Sheehan v. Dep't of Navy, 240 F.3d 1009, 1013 (Fed.Cir.2001) (alterations in original quotation)). Plaintiff must show that Defendants "`relied on, took into account, considered, or conditioned [their] decision'" on Plaintiffs military status. Id. (quoting Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir.2005)). "In the summary judgment context, the employee must establish a genuine issue of material fact as to whether his military status was a motivating factor in the adverse employment action to survive summary judgment." Id. at 787.

To the extent Plaintiff is able to meet his initial burden, "`the burden shifts to the employer to prove the affirmative defense that legitimate reasons, standing alone, would have induced the employer to take the same adverse action.'" Id. (quoting Sheehan, 240 F.3d at 1014). "To prevail on summary judgment, the employer must [ ] establish not just that it had a legitimate basis for taking the adverse employment action, but as a matter of uncontroverted fact that it would have taken the adverse employment action regardless of the employee's military status." Id. at 787 (citing Leisek v. Brightwood Corp., 278 F.3d 895, 900 (9th Cir.2002)).

In the present case, Plaintiff does not specify which of the Defendants' alleged "derogatory actions" were discriminatory. In Count I, Plaintiff contends simply that his "obligations or membership for service in the uniformed services is a motivating factor in all derogatory actions taken against the Plaintiff by Defendants." Am. Complt. at ¶ 80. He contends, again very generally, that "[t]he harassment and treatment of the Plaintiff, including the discipline, were each discriminatory and retaliatory acts of reprisal in violation of the USERRA." Id. at ¶ 82.

In terms of specific derogatory acts or instances of discipline, Plaintiff appears to allege only that Defendant Jablonski wrongfully posted the May 7, 2008 memo in the Corrections Department facility; that he was placed on paid administrative leave from May 7-28, 2008; and that he received a letter of reprimand on June 6, 2008, which he admits was later removed from his file. See Motion at 10-12; Resp. at 2-4 (admitting these asserted undisputed material facts). In addition to these instances, Plaintiff also contends that Defendants have wrongfully denied his request to attend annual meetings...