Zimmet v. Cibola Gen. Hosp.

• Decision Date: 26 July 2018
• Docket Number: No. 1:18-cv-00040 RB-KK,1:18-cv-00040 RB-KK
• Parties: JESSIE ZIMMET, Plaintiff, v. CIBOLA GENERAL HOSPITAL, and MARIA ATENCIO, as an individual, Defendants.
• Court: U.S. District Court — District of New Mexico

JESSIE ZIMMET, Plaintiff, v. CIBOLA GENERAL HOSPITAL, and MARIA ATENCIO, as an individual, Defendants.

No. 1:18-cv-00040 RB-KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

July 26, 2018

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 5), Plaintiff's Notice of Dismissal of her Discrimination Claim Under Americans with Disabilities Act (Doc. 11), Plaintiff's Motion Requesting Remand of the Remaining State Claims to State Court (Doc. 12), and Plaintiff's Motion for Leave to Amend her First Amended Complaint, to Withdraw all Federal Claims Against all Defendants, Filed in the Alternative to Plaintiff's Notice of Voluntary Dismissal (Doc. 16). Jurisdiction arises under 28 U.S.C. § 1331.

Having considered the submissions of counsel and relevant law, the Court will grant in part Defendants' motion to dismiss (Doc. 5), strike Plaintiff's notice of dismissal as void (Doc. 11), grant Plaintiff's motion for remand (Doc. 12), and deny Plaintiff's motion for leave to amend (Doc. 16).

I. Factual and Procedural Background¹

Ms. Jessie Zimmet (Plaintiff), who had recently been hired to work at Defendant Cibola General Hospital (the "Hospital"), took a pre-employment drug screen on November 7, 2015. (Doc. 1-A at 29-38 ("FAC") ¶ 8.) Ms. Marcia Chavez, the Hospital's Human Resources Director, called Plaintiff on November 16, 2015, and told her that Plaintiff had tested positive on the drug screen for a muscle relaxant. (Id.) Plaintiff explained that she "had been treated for a recent fall" and would provide the hospital with "a note from her pharmacy provider regarding [her] use of Lortab and Percocet . . . ." (Id. ¶ 9.) Plaintiff informed Ms. Chavez that "the only medications [she took] by mouth on a daily basis were Cymbalta and Lyrica 'for neuropathy.'" (Id.) Plaintiff and Ms. Chavez agreed that Plaintiff would retake the drug screen on November 30, 2015. (Id.)

Plaintiff began working in the Hospital's recovery room. (See id. ¶ 10.) On December 11,² 2015, Plaintiff met with Ms. Chavez and Ms. Maria Atencio, CO-CNO³ of the Hospital. (Id.) Ms. Chavez and Ms. Atencio gave Plaintiff the Employee Counseling Form and Drug and Alcohol policy and informed her that her second drug screen had also come back positive for "barbiturates." (Id. ¶ 11.) Plaintiff was confused as to why she tested positive for barbiturates and explained that perhaps it was the "compound medication 'Fiorinal,' taken for migraineheadaches on an 'as needed' basis." (Id. ¶¶ 11-12.) Plaintiff's medical diagnoses included migraine headaches and Reflex Sympathetic Dystrophy Syndrome. (Id. ¶ 12.) Plaintiff told Ms. Chavez and Ms. Atencio that she could work with her physician to find a medication for her migraines that did not contain a barbiturate, a solution which would comport with the Hospital's Drug and Alcohol policy. (Id. ¶ 13.) Ms. Atencio informed Plaintiff, however, that the Hospital "has a 'zero tolerance' for drug use[,] and" Plaintiff's two positive drug screens "were grounds for termination regardless of any supportive reason, without exemption." (Id. ¶ 13.) The Hospital refused to consider or offer any accommodation and summarily terminated Plaintiff effective immediately, on December 11, 2015. (See id. ¶ 18; see also Doc. 1-A-C.)

On October 7, 2016, 301 days after she was terminated, Plaintiff filed a Charge of Discrimination form with the New Mexico Department of Workforce Solutions, Human Rights Bureau ("NMHRB"), alleging discrimination based on disability in violation of the ADA and the New Mexico Human Rights Act ("NMHRA"). (See Doc. 5-A.) In the "Statement of Harm" section, Plaintiff stated: "I was terminated from my employment for reasons related to my disabilities, required mediation [sic], and unfair policies by my former employer that discriminated against me regarding my disabilities and required medications." (Id. at 1.) The NMHRB issued an Order of Non-Determination on October 14, 2016, notifying Plaintiff that it had closed her complaint brought pursuant to the NMHRA, and she was free to appeal the "Order of Non-Determination to the proper district court." (Doc. 1-A-A.) Plaintiff received a Notice of Right to Sue from the EEOC regarding her claim under the Americans with Disabilities Act (ADA) on November 28, 2016. (Doc. 1-A-B.)

Plaintiff attempted to file a notice of appeal and complaint in the Eighth Judicial District Court, County of Taos, State of New Mexico, on January 17, 2017. (See Docs. 12-B at 1; 12-C at2.) The state court rejected Plaintiff's complaint for deficiencies on January 18, 2017. (Doc. 12-B at 2.) Plaintiff successfully refiled the complaint on January 25, 2017. (See FAC at 1.) Plaintiff then filed her First Amended Complaint on December 7, 2017. (See id. at 29.) Defendants removed the First Amended Complaint to this Court on January 12, 2018. (See Doc. 1.)

Defendants filed their motion to dismiss on January 19, 2018. (Doc. 5.) The parties held a meet-and-confer meeting on February 6, 2018, in which Plaintiff's attorney learned for the first time that Defendants had filed a motion to dismiss. (See Docs. 6; Doc. 11 at 2.) Plaintiff asserts that her attorney did not receive an electronic notice of the motion to dismiss, because CM/ECF listed outdated email addresses for both of her two attorneys and their paralegal. (Doc. 11.) On the date of the parties' meet-and-confer, the parties filed a Joint Motion to Stay Pending Resolution of Defendants' Motion to Dismiss. (See Doc. 6.) In this motion, the parties acknowledge that "Plaintiff's Response to the Motion to Dismiss was due on February 2, 2018[,]" but "Plaintiff requested an extension of time to file a Response until February 14, 2018, which was agreed to by Defendants." (Id. at 1.) Plaintiff never filed a response to Defendants' motion to dismiss on or after February 14, 2018. Instead, Plaintiff filed a "Notice of Dismissal of her Discrimination Claim under Americans with Disabilities Act" on February 23, 2018 (Doc. 11), a motion to remand on February 23, 2018 (Doc. 12), and a motion to amend on April 3, 2018 (Doc. 16).

II. The Court will grant Defendants' motion to dismiss in part and will grant Plaintiff's motion to remand.

Before turning to the substance of the parties' motions, the Court will address Plaintiff's untimely request to file a response to Defendants' motion to dismiss. (See Doc. 12 at 1 ("If this Court denies Plaintiff's motion to remand, Plaintiff requests . . . leave to file her substantiveresponse to Defendants' Motion to Dismiss . . . ."). Plaintiff admits that she "received all pleadings filed in federal court before and after the Motion to Dismiss[,]" but she did not receive the motion to dismiss itself. (See Doc. 11 at 1 & 2 n.1.) Plaintiff blames Defendants and argues without citing to authority that it was Defendants' burden to maintain current contact information for Plaintiff's attorneys. (Doc. 18 at 2.) Plaintiff is incorrect. Plaintiff's attorneys are responsible for updating their own contact information. See CM/ECF Admin. Procedures Manual at 6, Section III(d)(6) ("The Participant is responsible for maintaining and promptly updating account information when changes occur. Maintaining account information is described in the CM/ECF Attorney User Manual.").

More importantly, Plaintiff admits that she received notice of Defendants' motion to dismiss during a meet-and-confer with Defendants' attorneys on February 6, 2018. (Id. at 2.) But rather than file a response, Plaintiff waited an additional 17 days before filing her "Notice of Dismissal" and her motion to remand. (See Docs. 11; 12.) Because of this additional delay, the Court would have denied Plaintiff's request to file a response. It makes no difference, however, as the Court will grant Plaintiff's motion to remand, and a substantive response is unnecesary. While Plaintiff's request may be denied as moot, the Court advises Plaintiff's attorneys to read the Court's Local Rules and Orders so that they will be better prepared to litigate cases in this Court in the future.

A. Legal standard for motion to dismiss for failure to exhaust administrative remedies.

Defendants bring their motion to dismiss pursuant to Rule 12(b)(1)⁴ and argue thatPlaintiff has failed to exhaust the administrative remedies for her claims brought under the ADA and the NMHRA, thus depriving this Court of jurisdiction to hear her claims. (See Doc. 5 at 5-9.) While not discussed by the parties, the Court pauses to note that the question of whether exhaustion of administrative remedies is jurisdictional is somewhat in flux in the Tenth Circuit. See Wickware v. Manville, 676 F. App'x 753, 767 n.4 (10th Cir. 2017) (acknowledging that the Tenth Circuit has recently called into question whether "exhaustion of administrative remedies is a jurisdictional prerequisite to suit" in Title VII and ADA cases) (citations omitted); see also Martinez v. Sw. Cheese Co., L.L.C., No. CV 12-660 KG/WPL, 2014 WL 11430955, at *5 (D.N.M. July 10, 2014), aff'd sub nom., 618 F. App'x 349 (10th Cir. 2015) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) ("timeliness of Title VII charge of discrimination is not jurisdictional prerequisite"); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) ("failure to exhaust Title VII administrative remedies is jurisdictional prerequisite"); Slusser v. Vantage Builders, Inc., 306 P.3d 524 (N.M. Ct. App. 2013) ("treating NMHRA 300 day period as statute of limitations, like Zipes did in concluding timeliness of charge of discrimination is not jurisdictional"); Mitchell-Carr v. McLendon, 980 P.2d 65, 71 (N.M. 1999) ("under NMHRA, exhaustion of administrative remedies is jurisdictional prerequisite to filing lawsuit")). As in Wickware, the Court need not address the issue head-on in this case, because "[t]he [jurisdictional vel non] characterization is important . . . only when the...