Vigil v. New Mexico Pub. Educ. Dep't
| Decision Date | 27 April 2018 |
| Docket Number | No. 1:16-cv-00047 KG/KK,1:16-cv-00047 KG/KK |
| Parties | NORMAN VIGIL, Plaintiff, v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, Defendant. |
| Court | U.S. District Court — District of New Mexico |
This matter comes before the Court on Defendant's motions for summary judgment and Plaintiff's motion for partial summary judgment. On January 16, 2017, Defendant filed "Defendant's Motion for Summary Judgment Regarding Plaintiff's Claims of Disability Discrimination and Retaliation Based on the ADAAA and HRA [Count I and III] and his Common Law Claim of Constructive Discharge ['Primary Summary Judgment Motion']" ("Defendant's First Motion for Summary Judgment") (Doc. 84), and "Defendant's Motion for Summary Judgment Regarding Plaintiff's Claims of Sex Discrimination [Counts II and III] and Retaliation Based on The Whistleblower Protection Act [Count IV] ['Second Motion for Summary Judgment']" ("Defendant's Second Motion for Summary Judgment") (Doc. 86). On January 18, 2017, Plaintiff filed "Plaintiff's Motion and Memorandum for Partial Summary Judgment that his Employer-Caused Disability Does Not Cut off Back or Front Pay" ("Plaintiff's Motion for Partial Summary Judgment"). (Doc. 89). The motions are completely briefed. (Docs. 85, 87, 98, 101, 102, 108, 114, and 115).
The Court conducted a hearing on March 27, 2018, in which it briefly explained its reasons for granting, in part, and denying, in part, Defendant's First Motion for Summary Judgment; granting Defendant's Second Motion for Summary Judgment; and denying Plaintiff's Motion for Partial Summary Judgment. The Court also entered an Order on March 27, 2018, noting its tentative ruling. (Doc. 127). This Memorandum Opinion and Order constitutes the full written opinion mentioned at the hearing and in the Order.
Plaintiff filed his First Amended Complaint for Damages for Discrimination and Retaliation ("Amended Complaint") on May 4, 2016. (Doc. 33). In his Amended Complaint, Plaintiff pleaded five causes of action against Defendant: "Violations of the ADA" ("Count I"), "Violations of Title VII" ("Count II"), "Violations of the HRA" ("Count III"), "Violations of the WPA" ("Count IV"), and "Constructive Discharge" ("Count V"). Id.
In its First Motion for Summary Judgment, Defendant contends that it is entitled to summary judgment on Plaintiff's ADA and NMHRA failure to accommodate claims because Plaintiff cannot prove a disability under the ADA. (Doc. 85) at 22. Additionally, Defendant argues that Plaintiff cannot prove the remaining elements of his prima facie failure to accommodate case, and that Defendant did everything it could to reasonably accommodate Plaintiff. Id. at 22-27. Defendant also argues that Plaintiff has no claim for constructive discharge. Id. at 26-27, 31-36.
In response, Plaintiff asserts that summary judgment is improper because Plaintiff can establish a prima facie failure to accommodate case, and, further, his requested accommodations were reasonable. (Doc. 101) at 16-25. Plaintiff also argues there is a genuine issue of material fact regarding whether he was constructively discharged. Id. at 25-27.
In its Second Motion for Summary Judgment, Defendant asserts it is entitled to summary judgment on Plaintiff's Title VII and NMHRA sex discrimination claims. (Doc. 87) at 6. Specifically, Defendant argues that Plaintiff, a male, cannot show that Defendant treated him differently from similarly situated female employees. Id. at 12-14. In addition, Defendant argues it is entitled to summary judgment on the New Mexico Whistleblower Protection Act ("NMWPA") claim because Plaintiff cannot show a causal connection between Plaintiff's protected activity and Defendant's alleged retaliation. Id. at 14-16. In response, Plaintiff argues that he can show both that he was treated differently from similarly situated female employees and can establish a prima facie case of sex discrimination. (Doc. 102) at 9-12. Plaintiff further asserts that there is evidence demonstrating a causal connection between Plaintiff's protected activity and Defendant's retaliatory actions. Id. at 12-22.
In Plaintiff's Motion for Partial Summary Judgment, Plaintiff argues there is no genuine issue of material fact concerning whether Defendant caused his disability and, thus, he had no duty to mitigate his damages. (Doc. 89) at 8-13. In its response, Defendant argues Plaintiff's motion is premature and that there are genuine issues of material fact regarding whether Plaintiff is disabled and, even if Plaintiff is disabled, a genuine question of fact exists as to whether Defendant caused the disability. (Doc. 98) at 19-28.
Plaintiff worked for Defendant for over seventeen and a half years. (Doc. 89-14) at 2. At the time relevant to this litigation, November 2010, to January 2, 2015, when he resigned, Plaintiff worked as an Information Technology ("IT") Systems Manager IV. Id.; (Doc. 85-1) at 25 (depo. at 26). Plaintiff, his supervisor and Defendant's Chief Information Officer, Michael Archibeque, and Plaintiff's IT coworkers worked in the Jerry Apodaca Building ("Apodaca Building"). (Doc. 85-1) at 12, ¶ 11.
On November 10, 2010, Plaintiff reported to Annette Larkin, Defendant's Human Resource Administrator, that he became ill on November 1, 2010. Id. at 52-54. Plaintiff reported he was experiencing headaches, burning eyes, sinus issues, and that he was unable to focus due to a chemical smell in his office. Id. At the time of his illness, Plaintiff was working in the basement, Room G-5, of the Apodaca Building. Id. at 7, ¶ 6; id. at 11, ¶ 5; (Doc. 89-1) at 3. Defendant took steps after November 2010 to remediate the basement, including the installation of a new ventilation system and the removal of any mold and water leaks in the basement bathrooms. (Doc. 85-1) at 2, ¶¶ 5-6. During the remediation, Defendant discovered asbestos in the tile layer underneath the carpeting of the "G-5 server room." Id. at ¶ 7. By April 1, 2013, Defendant had removed the asbestos completely. Id.
After Plaintiff made his November 2010 report, Defendant moved Plaintiff and his coworkers from the basement to an office on the third floor of the Apodaca Building, which provided windows that Plaintiff opened. (Doc. 89-1) at 3; (Doc. 89-2) at 4 (depo. at 16). Plaintiff and his coworkers worked in this office from December 2010 through November 2011.(Doc. 89-1) at 3; (Doc. 89-2) at 5 (depo. at 44). Plaintiff took leave in October 2011, receiving worker's compensation.2 (Doc. 85-1) at 8, ¶ 10. After Plaintiff returned from leave in November 2011, Defendant moved Plaintiff into Room 205 of the Apodaca Building, an office on the second floor where he had access to a window. (Doc. 89-2) at 5 (depo. at 42-43).
Plaintiff worked in this office from November 2011 through February 2014. (Doc. 89-1) at 3. Plaintiff kept the windows open when he worked in Room 205, pursuant to a doctor's recommendation that he get fresh air. (Doc. 89-2) at 4-5 (depo. at 16, 42-45). Plaintiff found Room 205 to be acceptable because of the fresh air. Id. at 5 (depo. at 44). Furthermore, Mr. Archibeque recognized that when Plaintiff had access to fresh air, Plaintiff did his work well. (Doc. 85-1) at 27 (depo. at 63-64).
Additionally, from November 2011 through April 2014, Plaintiff saw several doctors who provided him with "Doctor Visit/Modified Work Assignment" forms from the New Mexico Risk Management Division ("NMRMD"). (Doc. 85-1) at 55-59, and 62. Each form details Plaintiff's medical diagnosis as "chemical exposure," and restricts Plaintiff from future exposure to the basement or "contaminated area" in the Apodaca Building. (Doc. 85-1) at 55-59, and 62. As instructed, Plaintiff returned these forms to Defendant. Id.; (Doc. 89-2) at 3-6 (depo. at 6-9, 16-17, and 45-49).
Plaintiff saw several other medical professionals about his illness. (Doc. 89-3) at 7-8. Among the medical professionals was clinical health psychologist, Dr. Paul Donovan,3 who, onor about April 9, 2012, diagnosed Plaintiff "as suffering from Cognitive Disorder, not otherwise specified ('NOS'); chronic [post-traumatic stress disorder ('PTSD')]; Major Depressive Disorder, severe with psychotic features; Somatoform Disorder; Pain Disorder associated with psychological factors and a medical condition; Panic Disorder; and Impulse Control Disorder, NOS." (Doc. 89-6) at 4, ¶ 8. In his affidavit, Dr. Donovan attests that Plaintiff's "PTSD, and his decompensation episodes, were caused, or at least greatly exacerbated by, events at work." Id. at 5, ¶ 12. Moreover, Dr. Donovan notes that the "traumata and PTSD that [Plaintiff] suffered was triggered by the onset of physiological symptoms that he began to experience in the fall of 2010." Id.
In late February 2014, Plaintiff and the whole IT team moved back to the basement of the Apodaca Building—Room G-15. (89-1) at 3; (Doc. 102-1) at 3. Plaintiff agreed to the move after Mr. Archibeque told Plaintiff on a daily basis that Plaintiff was not a "team player" because he would not join the IT team in the basement.4 (Doc. 89-2) at 7 (depo. at 90-91). Plaintiff talked to his doctors about the move and with their permission he decided to move to Room G-15 in the basement. Id. at 7 (depo. 91-92). On February 25, 2014, Plaintiff provided Mr. Giles with doctors' orders approving the move to the basement of the Apodaca Building. (Doc. 85-1) at 60.
Plaintiff stayed in the basement for a few days in late February until his doctors requested he be moved because he "started feeling uneasy" and "got sick." (Doc. 89-2) at 7 (depo. at 90-92); (Doc. 85-1) at 67 (depo. at 51). Plaintiff informed Mr. Archibeque of his illness,5 and Defen...
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