Ruby v. Sandia Corp., No. CIV 09-0762 JB/WDS.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: JAMES O. BROWNING
• Citation: 699 F.Supp.2d 1247
• Parties: Doug RUBY, Ph.D., Plaintiff,v.SANDIA CORPORATION, a foreign Corporation doing business in New Mexico, Defendant.
• Docket Number: No. CIV 09-0762 JB/WDS.
• Decision Date: 19 February 2010

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Doug RUBY, Ph.D., Plaintiff,
v.
SANDIA CORPORATION, a foreign Corporation doing business in New Mexico, Defendant.

No. CIV 09-0762 JB/WDS.

United States District Court,
D. New Mexico.

Feb. 19, 2010.

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Matthew L. Garcia, Matthew L. Garcia, Attorney at Law LLC, Philip B. Davis, Albuquerque, NM, for the Plaintiff.

Luis G. Stelzner, Kim A. Griffith, Jaime L. Dawes, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, NM, for the Defendant. MEMORANDUM OPINION AND ORDERJAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed August 5, 2009 (Doc. 3); and (ii) the Plaintiff's Motion to Remand, filed August 31, 2009 (Doc. 13). The Court held a hearing on December 28, 2009. The primary issues are: (i) whether Defendant Sandia Corporation (“Sandia Labs”) has established a right to remove Plaintiff Doug Ruby's four state claims to federal court by showing that § 502 of the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (“ERISA”) completely preempts some or all of Ruby's claims; (ii)

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whether the Court should convert Ruby's state-law claims into federal claims under ERISA's civil-enforcement provisions; and (iii) whether the Court should permit Ruby to amend his Complaint to add additional state and/or federal claims. Because the Court finds that Ruby's claims under the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 through 28-1-15 (“NMHRA”), for age discrimination and retaliation are based on independent legal duties separate from those ERISA creates, the Court will not convert those claims into federal ERISA claims. Because the Court finds that ERISA completely preempts Ruby's claims for wrongful termination and prima-facie tort, the Court will convert those claims into a federal claim under ERISA's civil enforcement provisions. Because complete preemption by ERISA converts the state-law claims into a federal claim upon which relief can be granted, the Court denies Sandia Labs' motion to dismiss and will grant Ruby leave to amend his Complaint to properly plead his preempted state-law claims as a claim under ERISA's civil enforcement provision. Because both parties have requested that the Court maintain supplemental jurisdiction if the Court finds complete preemption for some of the claims, the Court will deny the Plaintiff's motion to remand. The Court will also grant Ruby leave to amend his Complaint to add additional state and/or federal claims. FACTUAL BACKGROUND

For purposes of resolving a motion to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all well-pled facts as true. Accordingly, the Court has relied on Ruby's Complaint in outlining the facts pertinent to this motion. Sandia Corporation operates the Sandia National Laboratories, a federally owned research facility in Bernalillo County, New Mexico. See Complaint for Damages Arising Under the New Mexico Human Rights Act and New Mexico Common Law ¶ 4, at 4, filed August 5, 2009 (Doc. 1-2)(“Complaint”). Ruby, a physicist, accepted employment with Sandia Labs in November 1985. See Complaint ¶ 7, at 4. In 1989, Ruby was promoted to Senior Member of the Technical Staff (“SMTS”), and in 1999, he was promoted to Principal Member of the Technical Staff (“PMTS”). See Complaint ¶¶ 9, 11, at 4. In early 2004, Sandia Labs brought in a new manager, Dr. Jeffrey Nelson, who was assigned as Ruby's supervisor. See Complaint ¶¶ 16, 17, at 5.

At the time Nelson was hired, Ruby's retirement benefits were close to vesting. See Complaint ¶ 18, at 5. On May 16, 2007, Nelson informed Ruby that he could accept placement on a Performance Improvement Plan (“PIP”) ¹ or be terminated from his employment. See Complaint ¶ 21, at 5.² Ruby accepted the PIP, and was given tasks such as developing a comprehensive research program for accelerated aging of Thin-Film materials, devices, and systems and developing a concentrating photovoltaic systems research program within sixty days.³ Ruby did not meet the

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tasks and was demoted to SMTS in September 2007 See Complaint ¶ 30, at 6. Ruby was placed on another PIP as a SMTS. See Complaint ¶ 33, at 7. Ruby set goals and work assignments for himself, which were Nelson approved, and submitted a twenty-page report to Sandia Labs management documenting his accomplishments and describing how he satisfied the goals set pursuant to the second PIP. See Complaint ¶¶ 35-38, at 7. Ruby subsequently received a letter stating that he had not satisfied the goals under the second PIP. See Complaint ¶ 39, at 7. Sandia Labs terminated Ruby's employment on January 28, 2008, citing the failure to meet the second PIP as the grounds for termination. See Complaint ¶ 41, at 7.⁴ As a result of his termination, Ruby filed a complaint with the New Mexico Human Rights Commission (“NMHRC”) pursuant to the NMHRA. See Complaint ¶ 45, at 8. The NMHRC, in its finding of probable cause, determined that Ruby attempted to meet his PIP requirements, that evidence showed that a younger female employee who was having employment issues was allowed to transfer to another department and Ruby was not offered the same option, and that there was sufficient evidence to believe discrimination occurred. See Complaint ¶ 47, at 8. PROCEDURAL BACKGROUND

On July 2, 2009, after the NMHRC found sufficient evidence to believe that discrimination had occurred, Ruby filed a Complaint against Sandia Labs in the Second Judicial District Court of Bernalillo County, New Mexico, alleging that Sandia Labs wrongfully discriminated against him based on his age, in contravention of the NMHRA, and engaged in conduct that constituted the common-law torts of wrongful termination and prima-facie tort. See Complaint ¶¶ 59, 68, 74, 76-78, at 9-11. In his Complaint, Ruby raised these causes of actions predicated on the averments that Sandia Labs treated him differently than younger employees to save money and that, but for his age, Sandia Labs would not have treated him unfairly. See Complaint ¶¶ 20, 59, 67 at 5, 9, 10. Ruby alleges that he “was treated less favorably by Sandia management than other younger employees with respect to employment decisions because of his age.” Complaint ¶ 59, at 9.

On August 8, 2009, Sandia Labs filed a Notice of Removal. See Doc. 1. Sandia Labs also filed its motion to dismiss contemporaneously with its Notice of Removal. See Doc. 3. Both Sandia Labs' Notice of Removal and its motion to dismiss are predicated solely on the argument that ERISA preempts Ruby's state-law claims. In its motion to dismiss, Sandia Labs argues that the Court should grant its motion because all of Ruby's claims relate to an employee-benefit plan which ERISA governs, seek benefits which that plan provides, and are, therefore, completely preempted by § 502 of ERISA. Specifically, Sandia Labs argues that Ruby's Complaint does not allege any other motive for Sandia Labs' alleged wrongful termination of his employment other than preventing Ruby from receiving a full retirement service pension. See Motion at 2. Sandia Labs relies on: (i) the provision in ERISA which states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under

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section 1003(b) of this title,” ERISA § 514, 29 U.S.C. § 1144(a); and (ii) on the Supreme Court of the United States' holding in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), in which the Supreme Court held that ERISA preempted the state claims of an employee who had lost his job and sued in state court under various tort and contract theories based on the allegation that the principal reason for his termination was that his pension benefits vested in another four months, were preempted by ERISA. Sandia Labs argues that, because ERISA preempts all four of Ruby's claims, the Court should dismiss them with leave to amend the state claims into an ERISA claim. See Motion at 7.

On August 31, 2009, Ruby filed his response to Sandia Labs' motion to dismiss. See Plaintiff Doug Ruby's Response to Defendant Sandia Corporation's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed August 31, 2009 (Doc. 12)(“Response to Motion to Dismiss”). In his response, Ruby argues that ERISA does not preempt his state-law claims. Ruby relies on the provision in ERISA which states that nothing in ERISA is to be construed so as to “alter, amend, modify, invalidate, impair, or supersede any law of the United States ... or any rule or regulation issued under any such law,” ERISA § 502(d), 29 U.S.C. § 1144(d), and the Supreme Court's holding in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Ruby contends that the Supreme Court's holding in Shaw v. Delta Air Lines, Inc. makes clear that state human rights laws are preempted with respect to ERISA benefit plans only insofar as they prohibit practices that are lawful under federal law. Ruby argues that, because the NMHRA's age discrimination provisions are co-extensive with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 through 634 (“ADEA”), a finding of ERISA preemption as to Ruby's claims for age discrimination would both “modify” and “impair” the enforcement of rights under the ADEA, and because Ruby seeks to vindicate rights that the ADEA promotes, even though he brought his claims through state-law causes of action, ERISA does not preempt his claims. See Response to Motion to Dismiss at 6. Ruby also contends that his claims do not relate to any employee-benefit plan the ERISA preemption provision contemplates. Ruby...