Wills v. Bd. of Regents of the Univ. of N.M.

• Citation: 357 P.3d 453
• Decision Date: 21 July 2015
• Docket Number: No. 35,486.,33,465.,35,486.
• Parties: John WILLS, M.D., Plaintiff–Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO and University of New Mexico Health Sciences Center, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

357 P.3d 453

John WILLS, M.D., Plaintiff–Appellant

v.BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO and University of New Mexico Health Sciences Center, Defendants–Appellees.

33,465.

No. 35,486.

Court of Appeals of New Mexico.

July 21, 2015.

Certiorari Denied, Sept. 16, 2015,

Valdez and White Law Firm, LLC, Timothy L. White, Albuquerque, NM, for Appellant.

Sheehan & Sheehan, P.A., Quentin Smith, Leah M. Stevens–Block, Albuquerque, NM, for Appellees.

OPINION

KENNEDY, Judge.

{1} Plaintiff John Wills, M.D. sued the Board of Regents of the University of New Mexico and the University of New Mexico Health Sciences Center (Defendants) for breach of contract and, relatedly, breach of the covenant of good faith and fair dealing. He later amended his complaint to include claims of a violation of due process and a violation of the New Mexico Whistleblower Protection Act (the WPA), NMSA 1978, §§ 10–16C–1 to –6 (2010), on the ground that Defendants terminated his employment in retaliation for his initiation of this lawsuit. On Defendants' motion, the district court dismissed Plaintiff's contract-related claims and his WPA claim. The court later granted Defendants' motion for a judgment on the pleadings as to Plaintiff's due process claim.

{2} On appeal, Plaintiff argues that the district court erred in dismissing his breach of contract¹ and WPA claims and in entering judgment on the pleadings as to his due process claim. We conclude that the district court did not err, and we affirm.

BACKGROUND

{3} Plaintiff was hired to the position of Chair of the Department of Anesthesiology and Critical Care Medicine at the University of New Mexico Health Sciences Center in September 2002. Pursuant to a two-year employment contract, Defendants agreed to pay Plaintiff a base salary plus a supplemental salary. After the two-year term of the contract expired, Defendants continued to pay Plaintiff's salary in an amount consistent with the payment-related terms of the original contract until 2009. After 2009 Defendants stopped paying Plaintiff pursuant to those original contract payment-related terms.

{4} In June 2011, Plaintiff filed a complaint for breach of contract and breach of the covenant of good faith and fair dealing (the initial complaint) by which he sought to recover “past due salaries” that were unpaid since 2009. Plaintiff alleged that the terms of the expired contract had been “continued by the acts of the parties and the subsequent payment of salary to [P]laintiff per the terms of the [original] contract” and, by failing to pay him in accord with those terms, Defendants were in breach of their contractual obligation. Approximately four days after Defendants were served with Plaintiff's initial complaint, Defendants terminated his employment.

{5} After Defendants terminated his employment, Plaintiff amended his complaint, adding a claim for retaliatory violation of due process. In support of his due process claim, Plaintiff alleged that by terminating his employment in retaliation for filing the initial complaint, Defendants violated Plaintiff's constitutional right of access to the courts. Later, in a third amended complaint, Plaintiff added a new claim in which he alleged that, by retaliating against him for filing the initial complaint, Defendants abused their authority in violation of the WPA.

{6} Defendants moved to dismiss Plaintiff's third amended complaint pursuant to Rule 1–012(B)(6) NMRA on the ground that it failed to state any claim upon which relief could be granted. For reasons that are discussed later in this Opinion, the district court granted Defendants' motion to dismiss Plaintiff's claims related to breach of contract and breach of the covenant of good faith and fair dealing, as well as his WPA claim. As to Plaintiff's due process claim, the district court denied Defendants' motion to dismiss on the ground that “a public employer may not take adverse employment action against a public employee for that employee filing a lawsuit[.]”

{7} Defendants again sought dismissal of Plaintiff's due process claim in a motion for a judgment on the pleadings pursuant to Rule 1–012(C). See Glaser v. LeBus, 2012–NMSC–012, ¶ 8, 276 P.3d 959 (“A judgment on the pleadings is treated as a motion to dismiss when the district court considers matters contained solely within the pleadings.”). In the motion for a judgment on the pleadings, Defendants argued that, insofar as Plaintiff sought to recover damages from Defendants for an alleged violation of his constitutional right of access to the courts, his claim was barred by the New Mexico Tort Claims Act (the TCA), NMSA 1978, §§ 41–4–1 to –30 (1976, as amended through 2015). In support of their argument, Defendants cited New Mexico case law for the proposition that “absent a waiver of immunity under the [TCA], a person may not sue the state for damages for violation of a state constitutional right.” Valdez v. State, 2002–NMSC–028, ¶ 12, 132 N.M. 667, 54 P.3d 71 (internal quotation marks and citation omitted). Plaintiff conceded that this was a correct statement of the law; he argued in response, however, that Defendants' motion for a judgment on the pleadings should be denied because the TCA's “failure to permit a remedy for a violation of a public employee's fundamental and constitutional right of access to the courts makes the [TCA] unconstitutional as applied” in this case.

{8} In support of his argument that the TCA was unconstitutional as applied in this case, Plaintiff argued that access to the courts is a fundamental right and that by depriving him of access to the courts and, concomitantly, a remedy in this case, the TCA violated his right to equal protection. Plaintiff also argued that he had a fundamental right to “a means to a remedy,” and to the extent that the TCA barred his ability to exercise the right to seek a remedy in this instance, its application violated his substantive and procedural due process rights.

{9} The district court was not persuaded by Plaintiff's constitutional arguments. Having considered Defendants' motion for a judgment on the pleadings and Plaintiff's response, the district court granted the motion for a judgment on the pleadings, thereby dismissing Plaintiff's due process claim.

{10} On appeal, Plaintiff argues that the factual allegations in his complaint satisfied the plain language of the WPA and that the district court's dismissal of his WPA claim was founded on an erroneous interpretation of the law. He also argues that because he had an implied employment contract, he was legally entitled to sue Defendants for breach of contract and that the district court erred in concluding otherwise. And, finally, reiterating the argument that he made in response to Defendants' motion for a judgment on the pleadings, he argues that the district court erred in dismissing his due process claim.

{11} We conclude that because Defendants' breach of contract claim was not founded upon a valid written contract, the district court properly dismissed his claim. We further conclude that the allegations in Plaintiff's complaint did not state a claim under the WPA. And, finally, we conclude that Plaintiff's constitutional attack on the TCA is not supported by the relevant law, and we affirm the district court's judgment on the pleadings as to Plaintiff's due process claim.

Standard of Review

{12} We review de novo a district court's decision to dismiss a case for failure to state a claim under Rule 1–012(B)(6). Delfino v. Griffo, 2011–NMSC–015, ¶ 9, 150 N.M. 97, 257 P.3d 917. “Dismissals under Rule 1–012(B)(6) are proper when the claim asserted is legally deficient.” Id. “In reviewing a district court's decision to dismiss for failure to state a claim, we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint.”Id. (internal quotation marks and citation omitted). The foregoing standard of review also applies to a district court's entry of judgment on the pleadings pursuant to Rule 1–012(C). Vill. of Angel Fire v. Bd. of Cnty. Comm'rs of Colfax Cnty., 2010–NMCA–038, ¶ 5, 148 N.M. 804, 242 P.3d 371.

Plaintiff's WPA Claim

{13} Plaintiff's WPA claim was based on the allegation that Defendants retaliated against him for filing the initial complaint by terminating his employment and that this retaliatory act constituted “an abuse of authority” as that term is used in the WPA. See § 10–16C–2(E)(3). The district court dismissed Plaintiff's WPA claim on the ground that Plaintiff's allegations did not show that Plaintiff engaged in any activity that is protected by the WPA. On appeal, Plaintiff argues that the district court erred in dismissing his claim because the allegations in his third amended complaint satisfied the “plain language” of the WPA.

{14} The WPA provides that it is unlawful for a public employer to “take any retaliatory action against a public employee because the public employee ... communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act[.]” Section 10–16C–3(A). In relevant part, the WPA defines an “unlawful or improper act” as an “action or failure to act on the part of a public employer that ... constitutes ... an abuse of authority[.]” Section 10–16C–2(E)(3). Thus, in order to state a legally viable claim under the WPA, Plaintiff was required to allege that because Plaintiff communicated with Defendants or a third party about Defendants' abuse of authority, Defendants retaliated against him.

{15} In his complaint, Plaintiff failed to allege that Defendants retaliated against him because he communicated with a third party or with Defendants about Defendants' abuse of authority. Rather, Plaintiff alleged only that the act of retaliation, that is, the termination of his employment, constituted an abuse of authority. Because the WPA exclusively protects an...