Valentine v. Heisch

• Docket Number: A-1-CA-40333
• Decision Date: 31 January 2024
• Parties: CARLA VALENTINE, Plaintiff-Appellant, v. DR. LAURA HEISCH and HIGH MESA DENTAL ARTS, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

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CARLA VALENTINE, Plaintiff-Appellant, v. DR. LAURA HEISCH and HIGH MESA DENTAL ARTS, Defendants-Appellees.

No. A-1-CA-40333

Court of Appeals of New Mexico

January 31, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission.The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTYJASON LIDYARDDISTRICT COURT JUDGE

Heather Burke Santa Fe, NM for Appellant

Sommer Udall Law Firm, P.A.Jack N. Hardwick Santa Fe, NM for Appellees

MEMORANDUM OPINION

MEGAN P. DUFFY, JUDGE

{¶1}PlaintiffCarla Valentine filed a lawsuit against her former employer, DefendantsDr. Laura Heisch and High Mesa Dental Arts, for unlawful discrimination under the New Mexico Human Rights Act (NMHRA), NMSA 1978, Sections 28-1-1 to -14 (1969 as amended through 2023).The jury returned a defense verdict.On appeal, Plaintiff argues that (1) the uniform jury instruction for NMHRA disability discrimination claims, UJI 13-2307C NMRA, is erroneous and improper; (2)the district court erred in various discovery rulings; and (3)the district court erred in denying Plaintiff's motions for sanctions against Defendants.We affirm.

DISCUSSION

I.The NMHRAandUJI 13-2307C

{¶2} Under the NMHRA, it is an unlawful discriminatory practice for "an employer, unless based on a bona fide occupational qualification or other statutory prohibition . . . to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender, gender identity, pregnancy, childbirth or condition related to pregnancy or childbirth, physical or mental disability or serious medical condition."Section 28-1-7(A).In this case, Plaintiff alleged discrimination based on a serious medical condition.

{¶3} Our Supreme Court has adopted two jury instructions for discrimination claims under the NMHRA: UJI 13-2307C, which is used in cases where the plaintiff alleges discrimination based on a serious medical condition, and UJI 13-2307A NMRA, which is used in cases where the plaintiff alleges discrimination based on race, age, or any other trait enumerated in Section 28-1-7(A).SeeUJI 13-2307A comm. cmt.Because Plaintiff alleged discrimination based on a serious medical condition, the jury was instructed in accordance with UJI 13-2307C and asked to determine whether "Dr. Heisch intentionally discriminated against Plaintiff because of Plaintiff's breast cancer by constructively discharging Plaintiff."

{¶4} On appeal, we understand Plaintiff to argue that (1)UJI 13-2307C is inconsistent with the NMHRA because the NMHRA does not require intentional discrimination; (2) the UJIs for NMHRA discrimination claims set forth different standards and impermissibly place a higher burden of proof on plaintiffs alleging disability discrimination; and (3)UJI 13-2307C improperly requires the jury to find that an employee's disability was the sole cause for the defendant's discrimination, and should instead require the jury to find only that the defendant's "adverse employment action was motivated in part by an illegitimate factor."SeeNava v. City of Santa Fe, 2004-NMSC-039, ¶ 8, 136 N.M. 647, 103 P.3d 571(emphasis added).

{¶5}"We review jury instructions de novo to determine whether they correctly state the law."Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853(internal quotation marks and citation omitted)."Trial courts are required to instruct the jury on the applicable rules of law using the Uniform Jury Instructions."Id.;seeRule 1-051(D) NMRA.This Court may consider error in uniform jury instructions adopted by the New Mexico Supreme Court when the instructions have not previously "been considered by the Supreme Court in actual cases and controversies that are controlling precedent."McNeil v. Burlington Res. Oil &Gas Co., 2007-NMCA-024, ¶ 19, 141 N.M. 212, 153 P.3d 46(alteration, internal quotation marks, and citation omitted).

A. UJI 13-2307C Is Consistent With the NMHRA

{¶6}Plaintiff first argues that UJI 13-2307C is inconsistent with the NMHRA because the statute does not require intentional discrimination.In support of her argument, Plaintiff cites to Muller v. United States Steel Corp., which held that "a plaintiff in a job discrimination case need not prove that the employer had a specific intent to discriminate."509 F.2d 923, 927(10th Cir.1975)(noting that a superficially neutral policy may be discriminatory, and to establish a prima facie case of discrimination, "[i]t is sufficient that the employer's conduct produced discriminatory results").

{¶7}Defendants correctly point out that Muller was a disparate impact case, which "differs from a disparate treatment claim in that it does not involve a showing of discriminatory intent, but rather addresses those situations when an apparently neutral employment policy has a discriminatory effect."Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, ¶ 30, 129 N.M. 586, 11 P.3d 550.When, as here, the plaintiff alleges disparate treatment, the plaintiff is required to show intentional discrimination on the part of the defendant.SeeSonntag v. Shaw, 2001-NMSC-015, ¶ 11, 130 N.M. 238, 22 P.3d 1188(holding that in order to prevail on a gender-based employment discrimination claim under the NMHRA, the plaintiff must demonstrate, by direct or indirect evidence, that the defendant intentionally discriminated against her on the basis of her sex);Smith v. FDC Corp., 1990-NMSC-020, ¶¶ 9-11, 109 N.M. 514, 787 P.2d 433(holding that in a race and age discrimination lawsuit brought under the NMHRA, the plaintiff must demonstrate that the defendant discriminated against him because of his race or age);Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, ¶¶ 26, 28, 458 P.3d 378(holding that in order to prevail on a discrimination claim under the NMHRA, the plaintiff must demonstrate that the defendant intentionally discriminated against her on the basis of her race and national origin).Consequently, UJI 13-2307C is consistent with the NMHRA and correctly states the standard for a disparate treatment discrimination claim.

{¶8} Notwithstanding that UJI 13-2307C technically contains a correct statement of the law, we share Plaintiff's concern that there are two uniform jury instructions for NMHRA discrimination claims that contain different statements of the plaintiff's burden.UJI 13-2307C(5) requires the plaintiff to prove the defendant"intentionally discriminated against the plaintiff because of [the plaintiff's] disability," whereas UJI 13-2307A requires the plaintiff to prove that the plaintiff's protected classification was a "motivating factor" in the defendant's adverse employment action.It is not clear to us why the UJI committee adopted a separate instruction for disability discrimination claims, or why the instructions utilize different language.

{¶9}We observe that in ADA cases, intentional discrimination is defined to mean that the plaintiff's disability was a motivating factor in the defendant's adverse action against the plaintiff-essentially combining the concepts set forth in UJIs 13-2307A and 13-2307C.SeeGonzales v. Sandoval Cnty., 2 F.Supp.2d 1442, 1445(D.N.M.1998)("To prove general discrimination under the ADA, a plaintiff must prove that intentional discrimination was a motivating factor in the adverse employment action.");Doe v. Deer Mountain Day Camp, Inc., 682 F.Supp.2d 324, 343(S.D.N.Y.2010)(stating that, in order to prevail on a claim for intentional discrimination under the ADA, the plaintiff must prove that their disability constituted a "motivating factor" for the defendant's adverse employment action);Matthews v. Commonwealth Edison Co., 941 F.Supp. 721, 727(N.D. Ill.1996)(noting that to show intentional discrimination in a reduction in force case brought under the ADA, an employee must produce evidence that their disability was a motivating factor in the decision to fire them).We also observe that federal courts have utilized an instruction that likewise combines the concepts set forth in UJIs 13-2307A and 13-2307C when instructing the jury on the plaintiff's burden of proof.For example, in Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322, 1334(11th Cir.1999), the jury was instructed in relevant part:

It is unlawful for an employer to intentionally discriminate against a qualified individual with a disability because of that person's disability....In order for the Plaintiff to establish his claim of intentional discrimination by the Defendant, he has the burden of proving the following essential elements by a preponderance of the evidence that: ....

2.The Defendant intentionally discriminated against the Plaintiff, that is, the fact that the Plaintiff was a qualified person with a disability was a motivating factor in the Defendant's decision to terminate the Plaintiff.

Id. at 1334 n.5(emphases added);see alsoModel Civil Jury Instruction for the Third Circuit Court of Appealsch. 9, § 9.1.1(2023)(stating that to recover on a disparate treatment claim under the ADA, "[plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff].This means that [plaintiff] must prove that [his/her] disability was a motivating factor in [defendant's] decision to [describe action][plaintiff]").

{¶10}We encourage the UJI Civil Committee to consider whether revisions to the jury instructions for NMHRA discrimination claims are necessary to address the lack of uniformity...