Rivero v. Bd. of Regents of the Univ. of New Mexico
| Decision Date | 07 March 2019 |
| Docket Number | No. CIV 16-0318 JB\SCY,CIV 16-0318 JB\SCY |
| Parties | DENNIS P. RIVERO, M.D., Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO d/b/a UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on: (i) the Defendant University of New Mexico Board of Regents' Motion and Memorandum for Summary Judgment, filed December 5, 2017 (Doc. 139); (ii) the Defendant University of New Mexico Board of Regents' Amended Motion and Memorandum for Summary Judgment, filed December 8, 2017 (Doc. 143)("UNM's MSJ"); (iii) the Plaintiff's Motion for Summary Judgment and Memorandum of Law as to Certain of Defendant Board of Regents of the University of New Mexico's AffirmativeDefenses, filed December 8, 2017 (Doc. 144)("Rivero's MSJ"); (iv) the Plaintiff's Motion in Limine to Exclude Complaints Against Plaintiff Prior to 2006, filed December 8, 2017 (Doc. 145)("Complaints MIL"); (v) the Plaintiff's Motion in Limine to Prohibit and Exclude Use of the Term "Psychological" in Reference to "Psychiatric" Evaluations, filed December 8, 2017 (Doc. 146)("Psychological MIL"); and (vi) the Plaintiff's Motion to Recuse the Honorable James O. Browning, filed July 17, 2018 (Doc. 203)("Recusal Motion"). The Court held hearings on June 26, 2018, and August 13, 2018. The primary issues are: (i) whether the Court may reconsider the Honorable William P. Lynch's, United States Magistrate Judge for the District of New Mexico, ruling on the illegal-medical-inquiry claim's date of accrual in the Order Denying Motion to Dismiss, filed December 22, 2016 (Doc. 43)("MTD Order"); (ii) whether Plaintiff Dennis Rivero, M.D.'s claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794, of an improper medical examination and constructive discharge based on UNM's2 request for psychiatric evaluations is time-barred, because Dr. Rivero filed suit five years after the request was made; (iii) whether UNM improperly required Dr. Rivero to submit to psychiatric evaluations as a condition of his return to full-time employment when it believed that he had a history of a lack of professionalism; (iv) whether UNM constructively discharged Dr. Rivero by revoking its offer of full-time employment after Dr. Rivero objected to the evaluations and byallegedly asking for the evaluations without a legitimate basis; (v) whether Dr. Rivero stated a claim for retaliation that is preserved for trial, because UNM did not address this claim in its MSJ; (vi) whether the Court should strike UNM's affirmative defenses (I), (II), and (III) -- "Plaintiff failed to state a claim for which relief can be granted," "Plaintiff's claims are barred by the statute of limitations," and "Plaintiff's claims are barred by the doctrine of laches and waiver," Rivero's MSJ ¶ 11, at 9 -- because Magistrate Judge Lynch addressed these defenses in the MTD Order; (vii) whether the Court should strike UNM's affirmative defenses (XIII) and (XIV) -- "At all times Defendant UNM acted in accordance with its policies and regulations, and applied such polices and regulations consistently and fairly" and "Defendant UNM fulfilled any and all obligations it had to Plaintiff under contract or statute," Rivero's MSJ ¶ 11, at 9 -- for being without factual support; (viii) whether the Court should strike UNM's affirmative defense (XV) -- "Defendant reserves the right to amend its Answer to Plaintiffs' Complaint to include additional Affirmative Defenses once facts supporting same become known," Rivero's MSJ ¶ 11, at 9 -- for being without substance; (ix) whether the Court should exclude complaints against Dr. Rivero made before 2006 for being irrelevant; (x) whether the Court should preclude UNM from using the term "psychological" instead of "psychiatric" in reference to the examination requirement it imposed on Dr. Rivero, because the term "psychological" is misleading; and (xi) whether the Court should recuse itself from this case because the Honorable James O. Browning, United States District Judge for the District of New Mexico, the presiding judge, has taught a semester-long class at the University of New Mexico School of Law ("School of Law")on five occasions, waiving all pay on three occasions and reallocating his pay to fund a law student's help in writing a law review article in the fall of 2015 and 2017 -- although on three occasions his waiver of pay may have been treated by UNM as a donation to UNM -- and because he has been acquainted with several Regents from the University of New Mexico Board of Regents ("Board of Regents"), including the current President and the Student Regent for 2017-2018. As to UNM's MSJ, the Court concludes that, viewing the evidence in the light most favorable to Dr. Rivero: (i) the Court may and will reconsider the MTD Order; (ii) Dr. Rivero's claim of an improper medical inquiry under the Rehabilitation Act is time-barred, but his constructive discharge claim is not; (iii) the complaints relating to Dr. Rivero's professionalism provide UNM with a legitimate basis to seek psychiatric examinations; (iv) UNM's request for psychiatric examinations was not a discriminatory act and, thus, cannot be the basis of Dr. Rivero's constructive discharge claim; and (v) Dr. Rivero stated a claim of retaliation under the Rehabilitation Act, but the statute of limitations bars it and he cannot make a prima facie case. Accordingly, the Court grants UNM's MSJ. This grant of summary judgment renders Rivero's MSJ and the Psychological MIL moot. The Court denies the Complaints MIL, because the pre-2006 complaints are relevant. Finally, the Court concludes that its ties with the School of Law and its acquaintances with members of the Board of Regents do not support an appearance of impropriety and that it does not have an interest that could be substantially affected by the proceeding's outcome. The Court, thus, denies the Recusal Motion.
The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers for UNM's MSJ. See UNM's MSJ ¶¶ 1-51, at 3-11; Response in Opposition to Defendant's Motion and Memorandum for Summary Judgment ¶¶ 1-51, at 1-8, filed March 8, 2018 (Doc. 191)("Rivero's Response"); id. ¶¶ 1-44, at 8-18;3 Defendant University of New Mexico Board of Regents' Reply in Support of Its Motion for Summary Judgment ¶¶1-51, at 1-10, filed February 2, 20184 (Doc. 169)("UNM's Reply"); id. at ¶¶ 1-44, at 10-13. The Court also takes additional undisputed facts helpful to determining the issues here from the summary judgment motion papers for Rivero's MSJ.5 See Rivero's MSJ¶¶ 1-47, at 2-11; University of New Mexico Board of Regents' Response Brief in Opposition to Certain of Defendant Board of Regents of the University of New Mexico's Affirmative Defenses ¶¶ 1-47, at 1-7, filed January 12, 2018 (Doc. 159)("UNM's Response"); id. ¶¶ 1-12, at 7-9;6 Reply in Support of Plaintiff's Motion for Summary Judgment and Memorandum of Law as to Certain of Defendant Board of Regents of the University of New Mexico's Affirmative Defenses ¶¶ 1-47, at 2-7, filed February 14, 2018 (Doc. 179)("Rivero's Reply"); id. ¶¶ 1-12, at 7-9.
Dr. Rivero began his employment with UNM in 1992 as an orthopedic surgeon. See UNM's MSJ ¶ 1, at 3 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 20:8-12 (taken September 15, 2017), filed December 8, 2017 (Doc. 143-1)("Rivero Depo. 143"));7 Dr. Rivero's Response ¶ 1, at 1 (admitting this fact). UNM promoted Dr. Rivero to associate professor in 1998 and to full professor in 2005. See Rivero's Response ¶ 1, at 1 (asserting this fact)(citing Memorandum from Dr. Jane E. Henney to Dr. Dennis Rivero at 2 (dated June 5,1998), filed March 8, 2018 at 2 (Doc. 191-1); Letter from Dr. R. Philip Eaton to Dr. Dennis Rivero at 1 (dated May 27, 2005), filed March 8, 2018 (Doc. 191-1)).8 Dr. Rivero left UNM in January, 2007, to practice in Tulsa, Oklahoma, "voluntarily, ostensibly so that he could water ski more often," among other reasons. UNM's MSJ ¶ 23, at 6 (asserting this fact)(citing Rivero Depo. 143 at 147:15-25; id. at 148:15-149:6).9 When Dr. Rivero left UNM in 2007, he was serving as the Division Chief of Adult Reconstruction in the Department of Orthopaedics and Rehabilitation. See Rivero's Response ¶ 1, at 8 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 155:8-20 (taken September 15, 2017), filed March 8, 2018 (Doc. 191-2)("Rivero Depo. 191")).10 While practicing in Oklahoma, however, Dr. Rivero "maintained a 0.05 full time equivalent (FTE) position at UNM, where he would return one day per month to perform certain surgeries." UNM's MSJ ¶ 24, at 6 (asserting this fact)(citing First Amended Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973 ¶ 14, at 3, filed September 9, 2016 (Doc. 28)("FAC")).11 Dr. Rivero "performed [these surgeries] on people with whom [he] had a prior relationship, or in assistance of other UNM physicians, who handled the pre-operative and post-operative procedures." UNM's MSJ ¶ 25, at 6 (asserting this fact)(citing Rivero Depo. 143 at 175:25-176:20).12
During Dr. Rivero's twenty-two-year employment with UNM, UNM "regularly reappointed" Dr. Rivero -- even during his full-time employment in Oklahoma -- with each reappointment "expressly stat[ing] that Dr. Rivero 'does not have . . . a physical or mental condition that could interfere with his ability to perform the essential functions of his position.'" Rivero's Response ¶ 2, at 9 (emphasis in Rivero's Response)(quoting Letter from Dr. Robert C. Schenck, Jr. to Dr. Robert Bailey at 1 (dated May 17, 2010), filed March 8, 2018 (Doc. 191-14); Letter from Dr. Robert C. Schenck, Jr. to Dr. Robert Bailey at 2 (dated May 28, 2008), filed March 8, 2018 (Doc. 191-14); Memorandum from Dr. Moheb Moneim to Dr. Robert Bailey ...
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