Rivero v. Board of Regents of the University of New Mexico

Filing 224

MEMORANDUM OPINION AND AMENDED ORDER by District Judge James O. Browning granting 139 MOTION for Summary Judgment and 143 Amended MOTION for Summary Judgment; denying 144 MOTION for Summary Judgment, 145 MOTION in Limine, 146 MOTION in Limine to Prohibit and Exclude Use of the Term Psychological in Reference to Psychiatric Evaluations, and 203 MOTION for Recusal of the Honorable James O. Browning (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DENNIS P. RIVERO, M.D.,
Plaintiff,
vs.

No. CIV 16-0318 JB\SCY

BOARD OF REGENTS OF THE UNIVERSITY
OF NEW MEXICO d/b/a UNIVERSITY OF NEW
MEXICO HEALTH SCIENCES CENTER,
Defendant.
MEMORANDUM OPINION AND AMENDED ORDER1
THIS MATTER comes before the Court on: (i) the Defendant University of New
Mexico Board of Regents’ Motion and Memorandum for Summary Judgment, filed December 5,
2017 (Doc. 139); (ii) the Defendant University of New Mexico Board of Regents’ Amended
Motion and Memorandum for Summary Judgment, filed December 8, 2017 (Doc. 143)(“UNM’s
MSJ”); (iii) the Plaintiff’s Motion for Summary Judgment and Memorandum of Law as to
Certain of Defendant Board of Regents of the University of New Mexico’s Affirmative
1

The Court previously entered an Order, filed September 24, 2018 (Doc. 211)(“Order”),
that: (i) granted the requests in the Defendant University of New Mexico Board of Regents’
Motion and Memorandum for Summary Judgment, filed December 5, 2017 (Doc. 139), and in
the Defendant University of New Mexico Board of Regents’ Amended Motion and
Memorandum for Summary Judgment, filed December 8, 2017 (Doc. 143); (ii) denied the
requests in Plaintiff’s Motion for Summary Judgment and Memorandum of Law as to Certain of
Defendant Board of Regents of the University of New Mexico’s Affirmative Defenses, filed
December 8, 2017 (Doc. 144); (iii) denied the requests in the Plaintiff’s Motion in Limine to
Exclude Complaints Against Plaintiff Prior to 2006, filed December 8, 2017 (Doc. 145);
(iv) denied the requests in the Plaintiff’s Motion in Limine to Prohibit and Exclude Use of the
Term “Psychological” in Reference to “Psychiatric” Evaluations, filed December 8, 2017
(Doc. 146); and (v) denied the requests in the Plaintiff’s Motion to Recuse the Honorable James
O. Browning, filed July 17, 2018 (Doc. 203). See Order at 7-8. In the Order, the Court stated
that it would “issue a Memorandum Opinion at a later date more fully detailing its rationale for
this decision.” Order at 1 n.1. This Memorandum Opinion is the promised opinion that details
the Court’s rationale for the previous Order.

Defenses, filed December 8, 2017 (Doc. 144)(“Rivero’s MSJ”); (iv) the Plaintiff’s Motion in
Limine to Exclude Complaints Against Plaintiff Prior to 2006, filed December 8, 2017
(Doc. 145)(“Complaints MIL”); (v) the Plaintiff’s Motion in Limine to Prohibit and Exclude Use
of the Term “Psychological” in Reference to “Psychiatric” Evaluations, filed December 8, 2017
(Doc. 146)(“Psychological MIL”); and (vi) the Plaintiff’s Motion to Recuse the Honorable James
O. Browning, filed July 17, 2018 (Doc. 203)(“Recusal Motion”). The Court held hearings on
June 26, 2018, and August 13, 2018.

The primary issues are: (i) whether the Court may

reconsider the Honorable William P. Lynch’s, United States Magistrate Judge for the District of
New Mexico, ruling on the illegal-medical-inquiry claim’s date of accrual in the Order Denying
Motion to Dismiss, filed December 22, 2016 (Doc. 43)(“MTD Order”); (ii) whether Plaintiff
Dennis Rivero, M.D.’s claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794, of an
improper medical examination and constructive discharge based on UNM’s 2 request for
psychiatric evaluations is time-barred, because Dr. Rivero filed suit five years after the request
was made; (iii) whether UNM improperly required Dr. Rivero to submit to psychiatric
evaluations as a condition of his return to full-time employment when it believed that he had a
history of a lack of professionalism; (iv) whether UNM constructively discharged Dr. Rivero by
revoking its offer of full-time employment after Dr. Rivero objected to the evaluations and by

2

For ease and clarity, the Court refers to Defendant Board of Regents of the University of
New Mexico d/b/a University of New Mexico Health Sciences Center as UNM. When
necessary, the Court will specify to which entity it is referring. The Board of Regents of the
University of New Mexico is the named Defendant because N.M.S.A. § 21-7-4 makes it the
University’s suable entity.

-2-

allegedly asking for the evaluations without a legitimate basis; (v) whether Dr. Rivero stated a
claim for retaliation that is preserved for trial, because UNM did not address this claim in its
MSJ; (vi) whether the Court should strike UNM’s affirmative defenses (I), (II), and (III) -“Plaintiff failed to state a claim for which relief can be granted,” “Plaintiff’s claims are barred by
the statute of limitations,” and “Plaintiff’s claims are barred by the doctrine of laches and
waiver,” Rivero’s MSJ ¶ 11, at 9 -- because Magistrate Judge Lynch addressed these defenses in
the MTD Order; (vii) whether the Court should strike UNM’s affirmative defenses (XIII) and
(XIV) -- “At all times Defendant UNM acted in accordance with its policies and regulations, and
applied such polices and regulations consistently and fairly” and “Defendant UNM fulfilled any
and all obligations it had to Plaintiff under contract or statute,” Rivero’s MSJ ¶ 11, at 9 -- for
being without factual support; (viii) whether the Court should strike UNM’s affirmative defense
(XV) -- “Defendant reserves the right to amend its Answer to Plaintiffs’ Complaint to include
additional Affirmative Defenses once facts supporting same become known,” Rivero’s MSJ ¶ 11,
at 9 -- for being without substance; (ix) whether the Court should exclude complaints against Dr.
Rivero made before 2006 for being irrelevant; (x) whether the Court should preclude UNM from
using the term “psychological” instead of “psychiatric” in reference to the examination
requirement it imposed on Dr. Rivero, because the term “psychological” is misleading; and
(xi) whether the Court should recuse itself from this case because the Honorable James O.
Browning, United States District Judge for the District of New Mexico, the presiding judge, has
taught a semester-long class at the University of New Mexico School of Law (“School of Law”)

-3-

on five occasions, waiving all pay on three occasions and reallocating his pay to fund a law
student’s help in writing a law review article in the fall of 2015 and 2017 -- although on three
occasions his waiver of pay may have been treated by UNM as a donation to UNM -- and
because he has been acquainted with several Regents from the University of New Mexico Board
of Regents (“Board of Regents”), including the current President and the Student Regent for
2017-2018. As to UNM’s MSJ, the Court concludes that, viewing the evidence in the light most
favorable to Dr. Rivero: (i) the Court may and will reconsider the MTD Order; (ii) Dr. Rivero’s
claim of an improper medical inquiry under the Rehabilitation Act is time-barred, but his
constructive discharge claim is not; (iii) the complaints relating to Dr. Rivero’s professionalism
provide UNM with a legitimate basis to seek psychiatric examinations; (iv) UNM’s request for
psychiatric examinations was not a discriminatory act and, thus, cannot be the basis of Dr.
Rivero’s constructive discharge claim; and (v) Dr. Rivero stated a claim of retaliation under the
Rehabilitation Act, but the statute of limitations bars it and he cannot make a prima facie case.
Accordingly, the Court grants UNM’s MSJ. This grant of summary judgment renders Rivero’s
MSJ and the Psychological MIL moot. The Court denies the Complaints MIL, because the pre2006 complaints are relevant. Finally, the Court concludes that its ties with the School of Law
and its acquaintances with members of the Board of Regents do not support an appearance of
impropriety and that it does not have an interest that could be substantially affected by the
proceeding’s outcome. The Court, thus, denies the Recusal Motion.

-4-

FACTUAL BACKGROUND
The Court draws the factual background from the parties’ undisputed material facts in
their summary judgment motion papers for UNM’s MSJ. See UNM’s MSJ ¶¶ 1-51, at 3-11;
Response in Opposition to Defendant’s Motion and Memorandum for Summary Judgment ¶¶ 151, at 1-8, filed March 8, 2018 (Doc. 191)(“Rivero’s Response”); id. ¶¶ 1-44, at 8-18; 3
Defendant University of New Mexico Board of Regents’ Reply in Support of Its Motion for
Summary Judgment ¶¶1-51, at 1-10, filed February 2, 20184 (Doc. 169)(“UNM’s Reply”); id. at
¶¶ 1-44, at 10-13. The Court also takes additional undisputed facts helpful to determining the
issues here from the summary judgment motion papers for Rivero’s MSJ.5 See Rivero’s MSJ

3

The local rules provide that the “Response may set forth additional facts other than those
which respond to the Memorandum which the non-movant contends are material to the
resolution of the motion. Each additional fact must be lettered and must refer with particularity
to those portions of the record upon which the non-movant relies.” D.N.M.LR-Civ. 56.1(b). Dr.
Rivero did not abide by the local rule and letter his additional facts; instead, he numbered them.
The Court keeps with Dr. Rivero’s convention when citing to his additional facts.
4

UNM’s Reply was filed before Rivero’s Response because Rivero’s Response is a
document consolidating two previous responses to UNM’s MSJ: (i) Plaintiff’s Responses and
Objections to Defendant’s Undisputed Material Facts and Statement of Undisputed Material
Facts in Partial Response to Defendant’s Motion and Memorandum for Summary Judgment,
filed January 12, 2018 (Doc. 160); and (ii) Response in Opposition to Defendant’s Motion and
Memorandum for Summary Judgment, filed January 12, 2018 (Doc. 161). Rivero’s Response
replaces these two motions, and they have been withdrawn from the docket. See Order Granting
Amended Unopposed Motion to Withdraw and Replace Docs. 160 and 161 with Consolidated
Response to Defendant’s Amended Motion for Summary Judgment, filed February 22, 2018
(Doc. 186).
5

Rivero’s MSJ asks the Court only to “strike certain affirmative defenses” and is thus
more limited in its recital of the undisputed facts. The parties stated that the Court could draw
facts from both sets of briefing and combine the facts, so the Court does. See Transcript of

-5-

¶¶ 1-47, at 2-11; University of New Mexico Board of Regents’ Response Brief in Opposition to
Certain of Defendant Board of Regents of the University of New Mexico’s Affirmative Defenses
¶¶ 1-47, at 1-7, filed January 12, 2018 (Doc. 159)(“UNM’s Response”); id. ¶¶ 1-12, at 7-9;6
Reply in Support of Plaintiff’s Motion for Summary Judgment and Memorandum of Law as to
Certain of Defendant Board of Regents of the University of New Mexico’s Affirmative Defenses
¶¶ 1-47, at 2-7, filed February 14, 2018 (Doc. 179)(“Rivero’s Reply”); id. ¶¶ 1-12, at 7-9.
1.

Background on Dr. Rivero’s Employment with UNM.

Dr. Rivero began his employment with UNM in 1992 as an orthopedic surgeon. See
UNM’s MSJ ¶ 1, at 3 (asserting this fact)(citing Deposition of Dr. Dennis P. Rivero at 20:8-12
(taken September 15, 2017), filed December 8, 2017 (Doc. 143-1)(“Rivero Depo. 143”));7 Dr.
Rivero’s Response ¶ 1, at 1 (admitting this fact). UNM promoted Dr. Rivero to associate
professor in 1998 and to full professor in 2005. See Rivero’s Response ¶ 1, at 1 (asserting this
fact)(citing Memorandum from Dr. Jane E. Henney to Dr. Dennis Rivero at 2 (dated June 5,
Motion Proceedings at 99:1-100:20 (Court, Norvell, Marcus)(taken June 26, 2018), filed July 17,
2018 (Doc. 202).
6

The local rules provide that the “Response may set forth additional facts other than those
which respond to the Memorandum which the non-movant contends are material to the
resolution of the motion. Each additional fact must be lettered and must refer with particularity
to those portions of the record upon which the non-movant relies.” D.N.M.LR-Civ. 56.1(b).
UNM did not abide by the local rule and letter its additional facts; instead, it numbered them.
The Court keeps with UNM’s convention when citing to its additional facts.
7

Dr. Rivero and UNM have filed excerpts from the same deposition, and thus the excerpts
from the deposition have different docket numbers. The Court thus includes the docket number
when citing the deposition for easier reference.

-6-

1998), filed March 8, 2018 at 2 (Doc. 191-1); Letter from Dr. R. Philip Eaton to Dr. Dennis
Rivero at 1 (dated May 27, 2005), filed March 8, 2018 (Doc. 191-1)).8 Dr. Rivero left UNM in
January, 2007, to practice in Tulsa, Oklahoma, “voluntarily, ostensibly so that he could water ski
more often,” among other reasons. UNM’s MSJ ¶ 23, at 6 (asserting this fact)(citing Rivero
Depo. 143 at 147:15-25; id. at 148:15-149:6).9 When Dr. Rivero left UNM in 2007, he was
serving as the Division Chief of Adult Reconstruction in the Department of Orthopaedics and
Rehabilitation.

See Rivero’s Response ¶ 1, at 8 (asserting this fact)(citing Deposition of

Dr. Dennis P. Rivero at 155:8-20 (taken September 15, 2017), filed March 8, 2018 (Doc. 191-

8

The local rules provide that “[a]ll material facts set forth in the Response will be deemed
undisputed unless specifically controverted.” D.N.M.LR-Civ. 56.1(b). Because Dr. Rivero
proffers this additional fact in his Response, and because UNM does not address this fact in its
Reply, the Court deems this fact undisputed. Further, UNM admits this fact generally by saying
that, since 1994, Dr. Rivero “was promoted twice since that time.” UNM’s MSJ ¶ 6, at 4 (citing
Rivero Depo. 143 at 50:9-20). Rivero’s MSJ proffers that he “was promoted to full professor,
receiving enthusiastic and often glowing recommendations from colleagues and peers.” Rivero’s
MSJ ¶ 2, at 2 (asserting this fact)(citing Letter to Dr. Dennis Rivero from Dr. R. Philip Eaton at 1
(dated May 27, 2005), filed December 8, 2017 (Doc. 144-14)). UNM admits that he was
promoted to full professor, but disputes that Dr. Rivero received “glowing recommendations
from colleagues and peers,” correctly noting that the record does not support this assertion.
UNM’s Response ¶ 2, at 1. Accordingly, the Court concludes that it is undisputed only that
UNM promoted Dr. Rivero to full professor.
9

Dr. Rivero purports to dispute this fact “as incomplete. Dr. Rivero had other reasons for
leaving, and only did so because he was assured that he could return to UNM.” Rivero’s
Response ¶ 23, at 5 (citing Deposition of Dr. Dennis P. Rivero at 149:3-25 (taken September 15,
2017), filed March 8, 2018 (Doc. 191-2)). He does not dispute, however, that one of the reasons
he left New Mexico was to water ski, so the Court deems this fact undisputed.

-7-

2)(“Rivero Depo. 191”)).10 While practicing in Oklahoma, however, Dr. Rivero “maintained a
0.05 full time equivalent (FTE) position at UNM, where he would return one day per month to
perform certain surgeries.” UNM’s MSJ ¶ 24, at 6 (asserting this fact)(citing First Amended
Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973 ¶ 14, at 3, filed
September 9, 2016 (Doc. 28)(“FAC”)). 11 Dr. Rivero “performed [these surgeries] on people
with whom [he] had a prior relationship, or in assistance of other UNM physicians, who handled
the pre-operative and post-operative procedures.”

UNM’s MSJ ¶ 25, at 6 (asserting this

fact)(citing Rivero Depo. 143 at 175:25-176:20).12

10

UNM admits this fact but argues that it is immaterial. See UNM’s Reply ¶ 1, at 10.
The Court will therefore consider this fact undisputed. See D.N.M.LR-Civ. 56.1(b). The Court
has previously held that a “relevance argument similarly does not dispute the fact” and that
“relevance is a legal argument that is best left for the Analysis Section” of this opinion. SEC v.
Goldstone, No. CIV 12-0257 JB/GBW, 2015 WL 5138242, at *27 n.95 (D.N.M. Aug. 22,
2015)(Browning, J.).
11

Dr. Rivero purports to dispute this fact “as incomplete. Dr. Rivero also could perform
surgeries more than one day per month if he so chose.” Rivero’s Response ¶ 24, at 5 (citing
Rivero Depo. 191 at 175:1-14). While Dr. Rivero could have spent two days in a row at UNM
one month and not returned the next, he does not dispute, however, that he returned at a rate of
one day per month in a 0.05 FTE position. See Rivero Depo. 191 at 175:1-14. Further, in his
own MSJ, Dr. Rivero states that while practicing at a 0.05 FTE at UNM, he “attend[ed] to
patients about one day a month.” Rivero’s MSJ ¶ 4, at 2 (citing Rivero Depo. 144 at 147:7-25;
id. at 153:10-154:3; id. at 154:17-155:7). The Court accordingly deems this fact undisputed.
12

Dr. Rivero purports to dispute this fact “as a mischaracterization,” asserting that “[t]he
cited testimony states that Dr. Rivero performed surgeries on new patients as well, and he was
unrestricted.” Rivero’s Response ¶ 25, at 5 (citing Deposition of Dr. Robert Cumming Schenck,
Jr. at 49:18-24 (taken September 13, 2017), filed March 8, 2018 (Doc. 191-4)(“Schenck Depo.
191”) Dr. Rivero has filed excerpts from the same deposition with his Response and his MSJ,
and thus the excerpts from the deposition have different docket numbers. The Court thus
includes the docket number when citing the deposition for easier reference.) The portion of

-8-

During Dr. Rivero’s twenty-two-year employment with UNM, UNM “regularly
reappointed” Dr. Rivero -- even during his full-time employment in Oklahoma -- with each
reappointment “expressly stat[ing] that Dr. Rivero ‘does not have . . . a physical or mental
condition that could interfere with his ability to perform the essential functions of his position.’”
Rivero’s Response ¶ 2, at 9 (emphasis in Rivero’s Response)(quoting Letter from Dr. Robert C.
Schenck, Jr. to Dr. Robert Bailey at 1 (dated May 17, 2010), filed March 8, 2018 (Doc. 191-14);
Letter from Dr. Robert C. Schenck, Jr. to Dr. Robert Bailey at 2 (dated May 28, 2008), filed
March 8, 2018 (Doc. 191-14); Memorandum from Dr. Moheb Moneim to Dr. Robert Bailey at 3
(dated July 11, 2006), filed March 8, 2018 (Doc. 191-14); Memorandum from Dr. Moheb
Moneim to Dr. Mark Hauswald at 4 (dated September 27, 2004), filed March 8, 2018 (Doc. 19114); and citing Letter to Muskogee Reg’l Med. Ctr. from Alison Weber at 15 (dated June 16,
2008), filed March 8, 2018 (Doc. 191-5); Board of Regents of the University of New Mexico’s
Supplemental Responses to Plaintiff Dennis Rivero’s First Set of Interrogatorries [sic], First
Requests for Production of Documents, and First Requests for Admission, No. 4 Answer at 2,
Dr. Schenck’s deposition cited does not say that Dr. Rivero performed surgeries on new patients
and that he was unrestricted; rather, it says that Dr. Rivero was “unsupervised” in the operating
room. Schenck Depo. 191 at 49:18-24. The fact that Dr. Rivero purports to dispute admits that
he performed surgeries on new patients. Further, it is an accurate representation of Dr. Rivero’s
testimony that he tended to operate on patients with whom he had a “preexisting relationship” or
with his “partners,” who “had to do the pre-op and . . . the post-op[,] . . . it wasn’t possible for me
to assume full responsibility for the care.” Rivero Depo. 191 at 175:25-176:20. Further, in
Rivero’s MSJ, he states that when he worked at UNM at 0.05 FTE, he “attend[ed] to patients
about one day a month. Rivero’s MSJ ¶ 3, at 2 (citing Deposition of Dr. Dennis P. Rivero at
147:7-25 (taken September 15, 2017), filed December 8, 2017 (Doc. 144-1)(“Rivero Depo.
144”); id. at 153:10-154:3; id. at 154:17-155:7). Accordingly, the Court deems this fact
undisputed.

-9-

filed March 8, 2018 (Doc. 191-13); Letter from Dr. Robert Bailey to Dr. Dennis Rivero at 5
(dated July 26, 2012), filed March 8, 2018 (Doc. 191-14); Letter from Rita Sorrels at 1 (dated
August 6, 2010), filed March 8, 2018 (Doc. 191-15)). See UNM’s Reply ¶ 2, at 10 (not
disputing this fact). Further, “[d]uring his time at UNM, Dr. Rivero was never disciplined or
subject to any adverse employment action.” Rivero’s MSJ ¶ 3, at 2 (asserting this fact)(citing
Deposition of Dr. Dennis P. Rivero at 21:8-15 (taken September 15, 2017), filed December 8,
2017 (Doc. 144-1)(“Rivero Depo. 144”); id. at 154:7-155:7; id. at 312:2-8).

See UNM’s

Response ¶ 3, at 2 (not disputing this fact). This record means that “Dr. Rivero was never
suspended, sanctioned, placed on probation, or otherwise disciplined during his entire tenure, nor
was he subject to any medical board complaints.” Rivero’s Response ¶ 3, at 9 (asserting this
fact)(citing Rivero Depo. 191 at 154:17-155:7; id. at 159:16-18; id. at 312:3-8; Board of Regents
of the University of New Mexico’s Responses to Plaintiff Dennis Rivero’s First Set of
Interrogatorries [sic], First Requests for Production of Documents, and First Requests for
Admission, Nos. 1 & 3 Answers at 2, filed March 8, 108 (Doc. 191-16)). See UNM’s Reply ¶ 3,
at 10 (not disputing this fact). Two residents who worked under Dr. Rivero did not feel that he
“was unprofessional or a threat to anyone’s safety in his role as a surgeon, and in fact, Dr.
Rivero’s meticulous nature was a benefit to the practice and the patients”; that Dr. Rivero’s
“colleagues respected him highly and did not want him to leave in 2006”; and “that it is was [sic]
delightful to see how much his patients enjoyed him.” Rivero’s Response ¶ 4, at 9 (asserting this
fact)(citing Deposition of Dr. Deana Mercer at 8:1-7 (taken September 12, 2017), filed March 8,

- 10 -

2018 (Doc. 191-17)(“Mercer Depo.”); id. at 8:25-9:9; id. at 11:2-12:2; id. at 18:2-24; id. at 18:924; Deposition of Dr. Andrew James Paterson at 9:1-2 (taken October 18, 2017), filed March 8,
2018 (Doc. 191-18)(“Paterson Depo.”); id. at 10:8-16; id. at 11:17-23; id. at 14:10-15:6). 13
“Christine Long, L.P.N., a surgical tech who worked in the operating room with Dr. Rivero from
1992 to 2007,” thought that Dr. Rivero “was always in control in his operating room” and
demanded a professional environment, and that “his patients seemed to love him.” Rivero’s
Response ¶ 5, at 9-10 (asserting this fact)(citing Deposition of Christine Long at 6:20-7:5 (taken
October 18, 2017), filed March 8, 2018 (Doc. 191-19)(“Long Depo.”); id. at 7:20-9:17; id. at
11:6-12:10; id. at 17:19-18:14; id. at 13:6-18; id. at 24:13-24:33).14 Nurse Araceli Martinez,
who worked with Dr. Rivero in the General Orthopedic and Faculty Orthopedic clinics from
1992 to 2007, held the view that “Dr. Rivero’s patients ‘loved him,’” and stated that she “never
received any complaints about Dr. Rivero nor ever saw him act unprofessionally.” Rivero’s
Response ¶ 6, at 10 (quoting Deposition of Araceli Martinez at 13:13 (taken October 17, 2017),

13

UNM argues that this fact is immaterial. See UNM’s Reply ¶¶ 4-6, at 11 (responding to
Dr. Rivero’s additional undisputed material facts 4-6 in the same paragraph). UNM asserts that
“[t]he fact that certain of Plaintiff’s colleagues were unaware of Plaintiff’s professionalism issues
does not negate the fact that these issues existed, and that they were well-documented.” UNM’s
Reply ¶¶ 4-6, at 11 (citing UNM MSJ’s undisputed material facts 8-22) The Court will therefore
consider this fact undisputed. See D.N.M.LR-Civ. 56.1(b). The Court has previously held that a
“relevance argument similarly does not dispute the fact” and that “relevance is a legal argument
that is best left for the Analysis Section” of this opinion. SEC v. Goldstone, 2015 WL 5138242,
at *27 n.95.
14

UNM states that this fact is immaterial, as discussed supra note 13. The Court therefore
deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b); supra note 13.

- 11 -

filed March 8, 2018 (Doc. 191-3)(“Martinez Depo.”); and then citing id. at 11:2-12:24; id. at
13:7-21; id. at 14:10-25; id. at 31:20-25; id. at 16:7-21; id. at 17:16-18:1; id. at 20:3-5; id. at
23:1-17; id. at 20:22-24).15
2.

Dr. Rivero’s Unprofessional Behavior.

Early in his career at UNM, in September 1993, Dr. Rivero “unleashed a 10 minute
stream of obscenities at a resident.” UNM’s MSJ ¶ 2, at 3 (asserting this fact)(citing Letter from
Dr. Kambiz Behzadi to Dr. Moheb Moneim at 20-21 (dated September 18, 1993), filed
December 8, 2017 (Doc. 143-1)).16 Dr. Rivero construed “this incident as mere locker room

15

UNM again states that this fact is immaterial, as discussed supra note 13. The Court
therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b); supra note 13.
16

Dr. Rivero purports to dispute this fact because “the cited exhibit [is] inadmissible
hearsay” and “on the grounds of relevance and materiality: Defendant’s own admitted time
period of focus is from 2003 to 2006.” Rivero’s Response ¶ 2, at 1-2 (citing UNM’s MSJ ¶ 6, at
4; Complaints MIL). The portion of the record that Dr. Rivero cites to argue UNM’s period of
focus is 2003-2006 does not dispute this fact; UNM never states it was only concerned with
Dr. Rivero’s conduct from 2003 to 2006. Dr. Rivero objects to much of UNM’s use of exhibits
on hearsay grounds. See, e.g., Rivero’s Response ¶¶ 4, 9, 32, 33, at 2-3, 6. Hearsay is a
statement, other than one the declarant made while testifying at the trial or hearing, offered for
the truth of the matter asserted. See Fed. R. Evid. 801. “Hearsay testimony is generally
inadmissible.” United States v. Christy, No. CR 10-1534, 2011 WL 5223024, at *5 (D.N.M.
Sept. 21, 2011)(Browning, J.)(citing Fed. R. Evid. 802). The Court recognizes that it cannot rely
on evidence that will not be admissible at trial. See Gross v. Burggraf Constr. Co., 53 F.3d 1531,
1541 (10th Cir. 1995)(“It is well settled in this circuit that we can consider only admissible
evidence in reviewing an order granting summary judgment. Hearsay testimony cannot be
considered because ‘[a] third party’s description of [a witness’] supposed testimony is not
suitable grist for the summary judgment mill.’” (alterations in original)(citations omitted)
(quoting Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995)). The Court can rely, however, on
evidence submitted in a form that would be inadmissible at trial as long as the Court determines
that the evidence will be presented in an admissible form:

- 12 -

This does not mean that evidence must be submitted in “a form that would be
admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, . . . (1986). Indeed,
parties may submit affidavits even though affidavits are often inadmissible
hearsay at trial on the theory that the same facts may ultimately be presented at
trial in an admissible form. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122
(10th Cir. 2005). However, “[t]o determine whether genuine issues of material
fact make a jury trial necessary, a court necessarily may consider only the
evidence that would be available to the jury” in some form. Argo v. Blue Cross
and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(citing Truck
Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1216 (10th Cir. 2004)(affirming
summary judgment, in light of the available evidence, because “[j]ury verdicts
may not be based on speculation or inadmissible evidence or be contrary to
uncontested admissible evidence”)).
Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006)(alterations in original). Here,
Dr. Rivero notes no portion of the record to specifically controvert this fact, only arguing it is
inadmissible and irrelevant. The letter upon which UNM relies for this fact is hearsay, because
Dr. Behzadi did not make the statements it contains “while testifying at the current trial or
hearing,” Fed. R. Evid. 801(c)(1), and UNM relies on the letter for the truth of what it asserts -that Dr. Rivero screamed obscenities at a resident for ten minutes. While this letter is supposedly
part of Dr. Rivero’s credentialing record, and thus could be admissible hearsay under the
business exception, UNM has not laid the foundation for this exception, and the statements
within the letter likely do not meet this exception. See United States v. Ary, 518 F.3d 775, 786
(10th Cir. 2008)(“The proponent of the document must also lay this foundation for its
admission.”). UNM can establish this fact with evidence admissible at trial, however, as
Dr. Rivero recognized the letter in question and discussed the incident it concerned, admitting to
using obscene language and yelling at a resident. See Rivero Depo. 143 at 30:11-35:18. Further,
Dr. Rivero, “when confronted with the exhibit, demonstrated a lack of remorse . . . [and a]
general lack of remorse was one of the reasons for UNM’s concern regarding Plaintiff’s
unprofessional behavior.” UNM’s Reply ¶ 2, at 1. Dr. Rivero also disputes this fact “[t]o the
extent otherwise necessary,” Rivero’s Response ¶ 2, at 2, but points to no “portions of the record
upon which [he] relies,” D.N.M.LR-Civ. 56.1(b). The Court thus deems this fact undisputed and
will discuss relevancy in the Analysis. See D.N.M.LR-Civ. 56.1(b); supra note 10.

- 13 -

talk.” UNM’s MSJ ¶ 3, at 4 (asserting this fact)(citing Rivero Depo. 143 at 35:10-18).17 In
1994, Dr. Rivero “refused to allow UNM to culture him to determine the source of an outbreak
of methicillin resistant staphylococcus areus (‘MRSA’).” UNM’s MSJ ¶ 4, at 4 (asserting this
fact)(citing Memorandum from Kim Oldewage to Dr. Moheb Moneim at 19 (dated October 7,
1994), filed December 8, 2007 (Doc. 143-1)).18 Dr. Rivero knew “of the severity of the MRSA
problem in hospitals.” UNM’s MSJ ¶ 5, at 4 (asserting this fact)(citing Rivero Depo. 143 at
28:3-6).19 Later, Dr. Rivero requested “that a nurse whom he was dating be assigned to his

17

Dr. Rivero purports to dispute this fact “on the grounds of relevance and materiality,”
and because “the Defendant abridges and mischaracterizes Dr. Rivero’s testimony.” Rivero’s
Response ¶ 3, at 2 (citing Rivero Depo. 191 at 30:11-15; id. at 31:21-32:14; id. at 33:3-10; id. at
34:20-35:9; id. at 35:19-22). In the Rivero Depo., Dr. Rivero stated that the incident in question
was resolved in his favor, and described residency as being “very much like a football game.”
Rivero Depo. 191 at 34:1-4. See id. at 32:4-14. He went on to say that, during the incident,
there were “obscenities on both sides of the field. I don’t think that -- that’s the way men talk to
each other in a locker room, and that’s the way men talk to each, and that’s the way I talk to my
friends sometimes.” Rivero Depo. 191 at 35:14-18. This evidence shows that UNM’s proffered
fact is not a mischaracterization, and a relevance argument also does not dispute the fact, so the
Court deems it undisputed. See D.N.M.LR-Civ. 56.1(b); supra note 10. Further, UNM notes
that this fact “concerns statements made in [Dr. Rivero’s] deposition in 2017.” UNM’s Reply
¶ 3, at 2.
18

Dr. Rivero “objects to the cited exhibit as inadmissible hearsay. Dr. Rivero further
objects on the grounds of relevance and materiality.” Rivero’s Response ¶ 4, at 2. The
memorandum on which UNM relies is hearsay, which UNM has not established as meeting an
exception, for the same reasons as the letter discussed supra note 16. UNM can establish this
fact with evidence admissible at trial, however, as Dr. Rivero discussed the incident the
memorandum concerns and admitted to refusing a MRSA culture, see Rivero Depo. 143 at 26:927:5, so the Court deems this fact undisputed and will deal with relevance in the Analysis.
19

Dr. Rivero “objects on the grounds of relevance and materiality” and “on the grounds
that Defendant abridges and mischaracterizes Dr. Rivero’s testimony.” Rivero’s Response ¶ 5, at
2 (citing Rivero Depo. 191 at 28:7-29:21). Dr. Rivero was asked at his deposition if he is “aware

- 14 -

operating room.” UNM’s MSJ ¶ 8, at 4 (asserting this fact)(citing Rivero Depo. 143 at 50:920).20 In 2003, Dr. Rivero “had a disagreement [with Dr. David Pitcher, Assistant Dean for
Clinical Affairs,] about procedures governing transfer of a patient over the Physician Access
Line Service (PALS),” 21 and “Dr. Pitcher escalated the incident in a letter to Dr. Rivero’s
department chair at the time, Dr. Moheb Moneim.” Rivero’s Response ¶ 7, at 10 (asserting this
fact)(citing Rivero Depo. 191 at 44:11-49:16; Deposition of Dr. David E. Pitcher at 6:9-13 (taken
September 11, 2017), filed March 8, 2018 (Doc. 191-20)(“Pitcher Depo.”); id. at 19:9-21:25;
Email from Dr. David Pitcher to Dr. Moheb Moneim at 12 (dated January 1, 2003), filed March

of the seriousness of MRSA . . . in -- in hospitals” and he responded, “[o]f course, I am.” Rivero
Depo. 191 at 28:4-6. This fact is thus not a mischaracterization of Dr. Rivero’s testimony, and
the portion of the Rivero Depo. to which Dr. Rivero cites in an attempt to show the
mischaracterization only elaborates why he refused the culture. See Rivero Depo. 191 at 28:729:21. This additional information does not change the fact that Dr. Rivero refused the culture,
knowing the seriousness of MRSA, so the Court deems this fact undisputed.
20

UNM’s undisputed material fact 8 states that this request was “against policy,” UNM’s
MSJ ¶ 8, at 4, but Dr. Rivero disputes the fact, saying only that the “Defendant has provided no
evidence of any policy or standards of professionalism violated,” Rivero’s Response ¶ 8, at 3.
He does not dispute, however, that he requested that his girlfriend be assigned to his operating
room, so the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b); supra note 8.
Because UNM does not point to a policy that this request violated, writing only that “it is
obvious why such an assignment would be discouraged,” the Court does not include this portion
of UNM’s proffered fact as undisputed. UNM’s Reply ¶ 8, at 3.
21

The “Physician Access Line Service is a consultation, transfer, and referral service,”
allowing “community physicians to reach UNM physicians quickly.” UNM PALS, Med. Home
Portal, https://nm.medicalhomeportal.org/services/provider/20860 (last visited Feb. 27, 2019).
Part of being on call involves taking PALS calls. See Schenck Depo. 191 at 41:9-18; id. at
42:11-13.

- 15 -

8, 2018 (Doc. 191-5)(“Pitcher Complaint”)).22 “Dr. Rivero defended himself by submitting his
own written rebuttal, [which asserts] that Dr. Pitcher had falsely accused Dr. Rivero of
wrongdoing.” Rivero’s Response ¶ 9, at 11 (asserting this fact)(citing Letter from Dr. Dennis
Rivero to Dr. Moheb Moneim at 10-13 (dated January 17, 2003), filed March 8, 2018 (Doc. 19120)).23 As a result of a memorandum that John Trotter, PhD, Vice Dean of the UNM School of

22

Dr. Rivero began this fact with the sentence: “In spite of his consummate
professionalism and obvious benefit that Dr. Rivero brought to UNM, a singular dispute an
administrator in 2003 caused subjected [sic] Dr. Rivero to a campaign against his competence
and character.” Rivero’s Response ¶ 7, at 10. Dr. Rivero points to no portion of the record that
shows this fact, so the Court does not adopt it. Further, UNM disputes this portion of the fact,
alleging that the “Plaintiff’s acts of unprofessionalism are well-documented.” UNM’s Reply
¶¶ 7-13, at 11 (responding to Dr. Rivero’s additional facts 7-13 within the same paragraph).
Although UNM provides no portion of the record to show this unprofessionalism, many of the
undisputed facts that the Court has adopted show complaints which UNM received concerning
Dr. Rivero’s demeanor. UNM also, however, purports to dispute Dr. Rivero’s proffered facts 713 as immaterial, but as discussed supra note 10, this argument does not controvert the facts and,
therefore, the Court will deem them undisputed.
Dr. Rivero’s next proffered fact is as follows: “Dr. Pitcher falsely accused Dr. Rivero,
based upon third-party hearsay, of acting improperly and rude as to a staff member assisting in
the transfer.” Rivero’s Response ¶ 8, at 11 (asserting this fact)(citing Pitcher Complaint; Pitcher
Depo. at 24:9-22; Email from Alex Herrera to Dr. Dennis Rivero at 9 (dated January 8, 2003),
filed March 8, 2018 (Doc. 191-20)). This fact, however, stems solely from inadmissible hearsay
evidence. The portion of the Pitcher Depo. to which Dr. Rivero cites reads into the record what
the email states, and then Dr. Pitcher verifies: “That’s an accurate reading of this, yes.” Pitcher
Depo. at 24:22. See id. at 24:2-24. Dr. Rivero is thus offering the email for the truth of the
statements therein -- that the PALS operator did not feel Dr. Rivero was rude, and the email is
therefore inadmissible as Dr. Rivero has not established an exception that makes it admissible.
UNM has disputed this fact only as immaterial. See supra note 16.
23

The Court has altered Dr. Rivero’s proffered fact, because it originally avers that Dr.
Rivero’s letter “show[s] that Dr. Pitcher had falsely accused Dr. Rivero of wrongdoing.”
Rivero’s Response ¶ 9, at 11. This statement would be offering the letter for the truth of what it
asserts, and is thus inadmissible hearsay, as Dr. Rivero’s own out-of-court statements, when he
attempts to use them against UNM, do not fall under the opposing-party-statement exclusion,

- 16 -

Medicine, issued, Dr. Pitcher “recused himself from any dealings with Dr. Rivero.” Rivero’s
Response ¶ 11, at 11 (asserting this fact)(citing Memorandum from John Trotter, PhD to Dr.
Dennis Rivero, Dr. David Pitcher, Dr. Moheb Moneim, Dr. Robert Bailey, and Dr. Susan Scott at
13 (dated February 11, 2004), filed March 8, 2018 (Doc. 191-5)(“Trotter Memorandum”);
Pitcher Depo. at 38:2-17).24 Further, the Trotter Memorandum states that the “event” between

and he has not established that this letter falls under any other exception to the rule against
hearsay evidence. The Court admits this evidence for the limited purpose of showing that Dr.
Rivero wrote such a letter and the contents of the letter -- but not that the statements within the
letter are true. UNM disputes this fact as immaterial, but that does not controvert the fact that
such a letter was written, and thus the Court deems this fact undisputed.
Dr. Rivero’s next fact states: “Dr. Pitcher ultimately admitted to having incomplete
information when denigrating Dr. Rivero.” Rivero’s Response ¶ 10, at 11 (citing Email from Dr.
David Pitcher to Dr. Moheb Moneim and Dr. Mark Hauswald at 14 (dated April 14, 2003), filed
March 8, 2018 (Doc. 191-20)(“Pitcher Email”)). The Pitcher Email cited does not make an
admittance that Dr. Pitcher denigrated Dr. Rivero or that he did so with incomplete information.
It reads, in part:
Though I drew my personal conclusions based on second hand information and
my own interaction with Dr. Rivero, my intent in forwarding this information to
you was for you to proceed with obtaining further input so as to create your own
balanced view, and act on that information if you felt it was appropriate. I know
enough to know that there are multiple sides to a story, and I only provided mine.
Pitcher Email at 14. Further, even if Dr. Rivero’s proffered fact did not misconstrue the exhibit,
it would rely on inadmissible hearsay evidence, because he is offering the Pitcher Email to prove
the veracity of the statements therein and offers no exception for it to be admissible. The Court
therefore does not adopt this fact.
24

The Court does not adopt the entirety of Dr. Rivero’s proffered fact 11, because the
portions of the record to which Dr. Rivero cites does not support some parts of the proffered fact.
The first sentence reads: “But then, Dr. Pitcher requested that Dr. Robert Bailey -- his friend and
the Associate Dean for Clinical Affairs -- investigate the incident.” Rivero’s Response ¶ 11, at
11 (citing Bailey Depo. at 6:19-23; Pitcher Depo. at 25:14-15; id. at 36:12-37:8). The portion of
the Bailey Depo. to which Dr. Rivero cites provides only that Dr. Bailey is the Associate Dean

- 17 -

Dr. Rivero and Dr. Pitcher is “not to be considered in any evaluations of Dr. Rivero’s
professional standing or performance.” Trotter Memorandum at 13. See Rivero’s Response
¶ 11, at 11 (asserting this fact).25 Dr. Pitcher continued to send emails concerning Dr. Rivero to
their colleagues -- discussing a “concerning incident” between the two, Email from Dr. David
Pitcher to Dr. Robert Bailey and Dr. Dr. Mark Hauswald at 1 (dated May 6, 2005), filed March

for Clinical Affairs. See Bailey Depo. at 6:19-23. The portion of the Pitcher Depo. to which Dr.
Rivero cites provides that Dr. Pitcher considers Dr. Bailey a friend, and that there is an email
stating that Dr. Trotter said Dr. Pitcher told him that Dr. Bailey would mediate -- but does not
provide that Dr. Pitcher asked Dr. Bailey to mediate. See Pitcher Depo. at 25:14-15; id. at 36:1237:8. The Court concludes that the record does not support this sentence and thus the Court does
not adopt it as a fact.
Dr. Rivero’s next sentence states: “A third administrator, Dr. John Trotter, issued a
memorandum prohibiting Dr. Pitcher from being involved in any matters pertaining to the
employment of Dr. Rivero and not to consider the complaint in any of Dr. Rivero’s evaluations.”
Rivero’s Response ¶ 11, at 11 (citing Trotter Memorandum at 13; Pitcher Depo. at 38:2-17).
First, the portion of the Trotter Memorandum that the Court has received in the record does not
“prohibit[] Dr. Pitcher from being involved in any matters pertaining to the employment of Dr.
Rivero,” Rivero’s Response ¶ 11, at 11; rather, it states: “Given the nature of Dr. Rivero’s
allegations concerning Dr. Pitcher, an appropriate third party . . . agreed upon by both physicians
will be present at any meetings between the two addressing Dr. Rivero’s professional standing or
performance, in order to ensure that all such meetings are free of any perceived bias,” Trotter
Memorandum at 13. Dr. Pitcher testified at his deposition that he “recall[ed] the essence of th[e]
document” and that it caused him to recuse himself “from anything having to do with Dr.
Rivero.” Pitcher Depo. at 38:9, 12. Accordingly, the Court does not adopt Dr. Rivero’s fact as
written. UNM purports to dispute this fact as immaterial, as discussed supra note 22, and as this
argument does not controvert the fact, the Court deems the remaining fact undisputed. See supra
note 10.
25

UNM purports to dispute this fact as immaterial, as discussed supra note 22, and as this
argument does not controvert the fact, the Court deems the fact undisputed. See supra note 10.
This statement in the Trotter Memorandum is not inadmissible hearsay for the purpose of
illustrating that UNM had notice that Dr. Trotter determined that the dispute between Dr. Pitcher
and Dr. Rivero should not be considered in Dr. Rivero’s professional evaluations.

- 18 -

8, 2018 (Doc. 191-21)(“May 6 Pitcher Email”), and that Dr. Pitcher is “gravely concerned about
Dr. Rivero,” Email from Dr. David Pitcher to Dr. Robert Bailey and Dr. Mark Hauswald at 3
(dated August 10, 2005), filed March 8, 2018 (Doc. 191-21)(“Aug. 10 Pitcher Email”) -“without Dr. Rivero’s knowledge and despite [that] Dr. Pitcher . . . knew Dr. Rivero only ‘in
passing.’” Rivero’s Response ¶ 12, at 11-12 (asserting this fact)(quoting Pitcher Depo. at 19:11;
and then citing Affidavit of Dennis P. Rivero, M.D. ¶ 3, at 1 (executed January 12, 2018), filed
March 8, 2018 (Doc. 191-26)(“First Rivero Aff.”)).26
In mid-2006, UNM Hospital patient advocate Willie Barela emailed Dr. Rivero to “pass[]
along a complaint . . . made by a patient asserting that Plaintiff bullied her because she did not
speak English. The patient claimed Plaintiff . . . asked her if she was ashamed she did not know

26

The Court cites to the portion of the record that supports Dr. Rivero’s fact and not all of
the email exchanges to which he cites, because they are either not emails from Dr. Pitcher or it is
unclear that they are discussing Dr. Rivero. Further, the Court does not adopt the entirety of
Dr. Rivero’s fact 12, because the record to which Dr. Rivero cites does not support the entire
fact. First, the Court will not adopt Dr. Rivero’s characterization that Dr. Pitcher “continued to
demean and belittle Dr. Rivero’s character” through the cited email exchanges, Rivero’s
Response ¶ 12, at 11, because this allegation is an inference not a fact. Second, the Pitcher
Depo. does not show that “Dr. Pitcher was unclear and vacillated as to explanations pertaining to
the content of the e-mails, his reason for sending them, and their intent.” Rivero’s Response
¶ 12, at 11 (citing Pitcher Depo. at 39:12-40:10). The portion of the Pitcher Depo. on which
Dr. Rivero relies considers only the “concerning incident” email, discusses the incident as
Dr. Pitcher remembers it, states that Dr. Rivero’s action could have been accidental, and states
that Dr. Pitcher did not discuss the incident with Dr. Rivero. See Pitcher Depo. at 39:12-40:10.
Dr. Rivero also describes these email exchanges as “consistent back-channel communication
among administrators,” Rivero’s Response ¶ 12, at 11, but cites no portion of the record showing
such consistency. For these reasons, the Court adopts Dr. Rivero’s fact as provided above.
UNM purports to dispute this fact as immaterial, as discussed supra note 22, and as this argument
does not controvert the fact, the Court deems it undisputed.

- 19 -

English.” UNM’s MSJ ¶ 9, at 4 (asserting this fact)(citing Email from Willie Barela to Dr.
Dennis Rivero at 23 (dated June 30, 2006), filed December 8, 2017 (Doc. 143-1)(“June 30
Barela Email”).27 In response to the complaint, Dr. Rivero “sa[id] that Mr. Barela and UNM
encouraged ‘groundless[’] complaints.” UNM’s MSJ ¶ 10, at 4 (asserting this fact)(quoting
Email from Dr. Dennis Rivero to Willie Barela at 22 (dated June 30, 2006), filed December 8,
2017 (Doc. 143-1)(“Rivero Email”)).28 Dr. Rivero “also informed Mr. Barela that he would no

27

In response, Dr. Rivero writes: “Dr. Rivero objects to the cited exhibit as inadmissible
hearsay. To the extent any content of the exhibit is characterized, Dr. Rivero states that it speaks
for itself and disputes Def.’s UMF 9 to the extent it is inconsistent therewith.” Rivero’s
Response ¶ 9, at 3. First, the Court notes that this email does not present a double hearsay
problem, because the substance of the complaint is not offered for the truth of the matter asserted
-- i.e., that Dr. Rivero treated the patient with the disrespect which she contends that he did.
Rather, the email is offered to prove that Barela had received a complaint against Dr. Rivero
from a patient. While the email itself is hearsay -- for the reasons discussed supra note 16 -UNM would be able to provide this evidence in an admissible form, as Dr. Rivero recognized the
email and remembered the incident, but had problems as to the substance of the complaint itself.
See Deposition of Dennis P. Rivero at 70:2-72:20 (taken September 15, 2017), filed February 2,
2018 (Doc. 169-1)(“Rivero Depo. 169”)). Accordingly, the Court admits this undisputed fact,
not to prove the allegations of the complaint, but to show that Barela had received it and passed
it along to Dr. Rivero. As to Dr. Rivero’s assertion that the email “speaks for itself,” Rivero’s
Response ¶ 9, at 3, the Court notes that it omitted the portion of UNM’s fact that states that the
patient had said that Dr. Rivero “told her that she needed to learn to speak English,” UNM’s MSJ
¶ 9, at 4, as this language is not in the email, see June 30 Barela Email at 23.
28

Dr. Rivero purports to dispute this fact and objects to UNM’s “mischaracterization of
Dr. Rivero’s response as an ‘insult.’” Rivero’s Response ¶ 10, at 3 (quoting UNM’s MSJ ¶ 10,
at 4). The Court removed UNM’s characterization of the Rivero Email from the fact, so
mischaracterization is no longer an issue. To attempt to dispute the fact, Dr. Rivero states that
“UNM consistently refused to investigate Dr. Rivero’s statements in defense of himself when his
character and integrity were wrongfully attacked.” Rivero’s Response ¶ 10, at 3 (citing Rivero
Depo. 191 at 84:13-20; id. at 84:24-85:5; id. at 85:15-86:12; id. at 87:1-12). The Court first
notes that Dr. Rivero did not attach page 86 of his deposition to his Response. The testimony
does not refute the fact that the Rivero Email states: “Mr. Barela, I have better things to do than

- 20 -

longer see patients at the General Ortho clinic, a clinic that is used by many indigent patients.”
UNM’s MSJ ¶ 11, at 4 (asserting this fact)(citing Rivero Email at 22).29 “Moreover, Plaintiff
informed Mr. Barela that he would not speak Spanish to patients, despite the fact that he was
fluent in Spanish, and he implied to Mr. Barela that Spanish speaking general ortho clinic
patients caused him the most difficulty.” UNM’s MSJ ¶ 12, at 5 (asserting this fact)(citing
Rivero Email at 22).30 On the same day, Dr. Rivero sent another email, “stating that he would

to respond to this type of complaint which is groundless, and is apparently encouraged by you
and the institution.” Rivero Email at 22. Dr. Rivero’s assertion that UNM’s “misportrayal of Dr.
Rivero’s e-mail . . . ignores the fundamental groundlessness of this and all other complaints
against Dr. Rivero” similarly does not dispute the fact. Rivero’s Response ¶ 10, at 3 (citing
Rivero’s Response ¶ 32, at 6). The Court therefore deems the fact as it provides undisputed.
29

Dr. Rivero purports to dispute this fact “to the extent it is inconsistent with the express
statement of Dr. Rivero in the cited exhibit. Dr. Rivero continued to see patients in the ‘General
Ortho’ clinic.” Rivero’s Response ¶ 11, at 3 (citing Martinez Depo. at 23:21-24). The portion of
the Martinez Depo. to which Dr. Rivero cites does not show that Dr. Rivero continued to work at
the General Orthopedic clinic; rather, it discusses whether Martinez believed that “Dr. Rivero
was unable to perform his work as an orthopedic surgeon” or if she “ever fe[lt] that Dr. Rivero
had a mental condition.” Martinez Depo. at 23:18-24. Martinez testified at her deposition,
however, that she worked with Dr. Rivero “throughout his tenure at UNM.” Martinez Depo. at
12:21-24. This fact does not negate that the Rivero Email states: “In the future I will go out of
my way to avoid contact with patients in the General Ortho clinic,” and “[i]f I never had to see
another patient in the General Ortho clinic it would be just fine with me, but I will in the future
just keep my distance from these patients.” Rivero Email at 22-23. Dr. Rivero also “disputes the
allegations purported to be contained in the exhibit.” Rivero’s Response ¶ 11, at 3 (citing Rivero
Depo. 191 at 81:13-23; id. at 82:12-83:2; id. at 84:24-85:5). The portion of the Rivero Depo. to
which Dr. Rivero cites disputes the veracity of the patient’s complaint, however, and not the
contents of the Rivero Email. The Court therefore deems this fact undisputed.
30

Dr. Rivero purports to dispute this fact “to the extent it is inconsistent with the express
statement of Dr. Rivero in the cited exhibit and to the extent that Defendant characterizes an
implication not present in the text of the cited statement.” Rivero’s Response ¶ 12, at 3. The
Rivero Email states:

- 21 -

never operate on a particular patient because of a simple misunderstanding regarding payment.”
UNM’s MSJ ¶ 22, at 6 (asserting this fact)(citing Email from Dr. Dennis Rivero to Willie Barela
and Dr. Moheb Moneim at 26 (dated June 30, 2006), filed December 8, 2017 (Doc. 1431)(“Payment Email”); Rivero Depo. 143 at 140:22-141:1).31

In the future I will go out of my way to avoid contact with patients in the
General Ortho clinic, nor will I speak spanish [sic] to them, (although I am fluent
in spanish [sic] and as a courtesy to the patients and the hospital I often speak to
them in spanish [sic]) as it is in this clinic where I find the most unappreciative
patients, who complain the most, demand the most, and believe that somehow I
am their slave and I am obligated to do whatever they want from me. It would
seem that this is the clinic where all of the complaints come from.
Rivero Email at 22-23. He also wrote: “If I never had to see another patient in the General Ortho
clinic it would be just fine with me., [sic] but I will in the future just keep my distance from these
patients who are nothing but problems for me.” Rivero Email at 23. The Court thus concludes
that UNM’s proffered fact is an accurate representation of the Rivero Email, and that this fact is
undisputed as Dr. Rivero has provided nothing to challenge it. See D.N.M.LR-Civ. 56.1(b).
31

Dr. Rivero disputes this fact “as a mischaracterization. Dr. Rivero explained clearly the
procedure by which patients must be cleared financially and his obligations as a physician in that
situation.” Rivero’s Response ¶ 22, at 5 (citing Rivero Depo. 191 at 138:23-140:25). This fact is
not a mischaracterization. Dr. Rivero wrote in the Payment Email: “Please tell [the patient] that I
will NOT be doing his surgery on any date, for any amount of money, under any circumstances
and that I will no longer see him.” Payment Email at 26. He went on to state: “The facts of the
matter are that I did indeed schedule him for surgery (did not deny him care) but explained to
him that his self pay status as I understood it would require him to pay the hospital 50% (not me)
which would probably be about 8-10 thousand.” Payment Email at 26. The patient “seems to
think that he has been financially cleared, which I do not think is the case.” Payment Email at
26. At his deposition, Dr. Rivero explained what UNM Hospital historically did with self-pay
patients and that it changed this policy -- ostensibly without telling Dr. Rivero -- leading to a
“misunderstanding” of the payment procedures. Rivero Depo. 143 at 140:25. See id. at 138:20140:21. Dr. Rivero still decided to cancel the patient’s surgery and wrote that he would “no
longer see him.” Payment Email at 26. See Rivero Depo. 143 at 141:1-19. The Court thus
deems this fact undisputed.

- 22 -

Later in 2006, Barela sent Dr. Rivero another complaint which he had received from one
of Dr. Rivero’s patients, who alleged that Dr. Rivero “compared [the] patient to a monkey, and
informed the patient ‘the only thing [Dr. Rivero] would prescribe is Church.’” UNM’s MSJ
¶ 14, at 5 (asserting this fact)(quoting Email from Willie Barela to Dr. Dennis Rivero at 25
(dated August 3, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 3 Barela Email”).32 The
patient who made this complaint was a former intravenous (“IV”) drug user, and Dr. Rivero
“describ[ed] a study regarding monkeys and drugs to the patient in question, and attempted to
apply it to the patient’s situation.” UNM’s MSJ ¶¶ 15-16, at 5 (citing Aug. 3 Barela Email at 25;
Rivero Depo. 143 at 120:22-121:6).33 In the Aug. 3 Barela Email, Barela repeatedly uses the
term “claims” when describing the patient’s allegations against Dr. Rivero. UNM’s MSJ ¶ 18, at

32

Dr. Rivero “objects to [this fact] as hearsay[,] and disputes its factual assertions as a
misrepresentation of the event at issue. Further, a resident present with Dr. Rivero asserted that
Dr. Rivero did nothing wrong.” Rivero’s Response ¶ 14, at 4 (citing Rivero Depo. 191 at
119:19-121:23). As discussed supra note 27, there is no double hearsay problem with the Aug. 3
Barela Email, because it is not offered to prove the truth of the complaint but that Barela had
received a complaint. UNM could prove that Barela received such complaint through admissible
evidence, because Dr. Rivero recalled receiving this Email and that such complaint had been
made, although he disputed the substance of the complaint as being “a gross misrepresentation of
what occurred.” Rivero Depo. 143 at 119:22-23. See id. at 118:1-120:5. That the substance of
the complaint is in dispute, however, does not dispute the fact that it was made, so the Court
deems this fact undisputed.
33

Dr. Rivero raises the same objection to this fact as the one discussed supra note 32, see
Rivero’s Response ¶ 15, at 4, and for the same reasons provided supra note 32, the Court deems
this fact undisputed.

- 23 -

5 (asserting this fact)(citing Aug. 3 Barela Email at 25). 34 Dr. Rivero emailed Barela in
response, “accusing him of ‘attacking physicians’ based on allegations with ‘very little truth’ to
them.” UNM’s MSJ ¶ 17, at 5 (asserting this fact)(quoting Email from Dr. Dennis Rivero to
Willie Barela at 25 (dated August 4, 2006), filed December 8, 2017 (Doc. 143-1)(“Aug. 4 Rivero
Email”)). 35 Barela responded to Dr. Rivero’s email, “stating that he viewed patient claims
objectively, and stating that he respected Plaintiff very much.” UNM’s MSJ ¶ 19, at 6 (asserting
this fact)(citing Email from Willie Barela to Dr. Dennis Rivero at 24 (dated August 7, 2006),
filed December 8, 2017 (Doc. 143-1)(“Aug. 7 Barela Email”)). 36 Dr. Rivero responded to
Barela’s second email with his own email, in which he wrote:

34

Dr. Rivero “objects to [this fact] as hearsay and as speculation, as there is no evidence
of Mr. Barela’s own state of mind.” Rivero’s Response ¶ 18, at 4. UNM’s fact provides that
Barela’s use of the term “claims” “indicat[es] that he was not accepting the claim without
question.” UNM’s MSJ ¶ 18, at 5 (citing Aug. 3 Barela Email at 25). This indication is not a
fact, so the Court has not adopted it. Further, the Court’s adopted fact is not hearsay, because the
Aug. 3 Barela Email is not offered to prove the truth of the statements it contains, just to show
what language it uses. See supra note 16 (discussing hearsay). Accordingly, the Court deems
this fact undisputed.
35

UNM characterizes this email Dr. Rivero sent as “scathing,” UNM’s MSJ ¶ 17, at 5,
and Dr. Rivero disputes this fact “as a mischaracterization,” arguing the email is “an adamant
defense against untruths aimed at Dr. Rivero’s character and professional acumen and stature.”
Rivero’s Response ¶ 17, at 4. The Court thus removes UNM’s characterization from the fact and
deems the remainder undisputed.
36

Dr. Rivero disputes this fact “as hearsay and disputes it to the extent it is inconsistent
with the express content of the cited exhibit and to the extent Defendant characterizes an
implication not present in the text of the cited exhibit.” Rivero’s Response ¶ 19, at 4. The email
is not hearsay, because UNM is not providing it to prove the truth of its statements, but rather to
show what it says. See supra note 16 (discussing hearsay). The Court has removed UNM’s
characterization of this email and thus deems the adopted fact undisputed.

- 24 -

Your manner and approach to this, in my opinion is reprehensible and
thoroughly disrespectful of Physicians, and I am amazed that you have no idea
how much I dislike you and your methods, which effectively try to lower our
status to servants who are expected to get on our knees before patients. You may
think you are doing what your job requires, and so be it, but it is WRONG,
WRONG and WRONG, and I intend to bring it up with your boss.
....
WHy [sic] is that this year in the past few months I have had four of these,
(one where I did not even set eyes on the patient) when in the past fourteen years I
never heard from your predecessor?
Email from Dr. Dennis Rivero to Willie Barela at 24 (dated August 7, 2006), filed December 8,
2017 (Doc. 143-1)(“Aug. 7 Rivero Email”).

See UNM’s MSJ ¶ 20, at 6 (asserting this

fact)(citing Aug. 7 Rivero Email at 24). 37 Dr. Rivero “does not regret sending the [Aug. 7
Rivero Email].” UNM’s MSJ ¶ 21, at 6 (asserting this fact)(citing Rivero Depo. 143 at 106:17107:25).38 “Moreover, [one] of Dr. Rivero’s former patients filed a claim with the U.S. Office of

37

Dr. Rivero disputes this fact “to the extent it is inconsistent with the express statement
of Dr. Rivero in the cited exhibit” and argues that “it is incomplete, as Dr. Rivero also expresses
concern about receiving complaints about patients whom he has ‘not even set his eyes on,’ which
is a challenge to Mr. Barela’s objectivity and thoroughness.” Rivero’s Response ¶ 20, at 4.
Because the Court quotes the full paragraph of the portion of the email to which UNM cites in its
MSJ, and includes the portion of the Aug. 7 Rivero Email to which Rivero purports to quote in
his Response, the Court deems this fact undisputed.
38

Dr. Rivero argues that this fact is hearsay and “disputes it to the extent it is inconsistent
with the express content of the cited exhibit and to the extent that Defendant characterizes the email as ‘angry.’ Dr. Rivero had a right to defend himself against baseless accusations.” Rivero’s
Response ¶ 21, at 4 (citing Rivero Depo. 191 at 108:2-18). First, neither the deposition nor the
email constitutes hearsay, because they are statements that UNM “offer[s] against an opposing
party,” that “was made by the party in an individual . . . capacity.” Fed. R. Evid. 801. Further,
the fact is consistent with Dr. Rivero’s deposition testimony, for he was asked “do you regret
sending that e-mail” and he responded “[n]o.” Rivero Depo. 143 at 107:18-21. The Court has

- 25 -

Civil Rights in the federal Health and Human Services Department, alleging that Dr. Rivero
made derogatory statements about Mexicans.” UNM’s MSJ ¶ 13, at 5 (asserting this fact)(citing
Letter from Ralph Rouse to Steven McKerman at 1-2 (stamped March 1, 2007), filed December
8, 2017 (Doc. 143-2)(“OCR Letter”)).39

removed portions of UNM’s proffered fact that the deposition testimony does not support,
including UNM’s characterization of the email as “angry.” The portion of the Rivero Depo. to
which Dr. Rivero cites does not bring into dispute that he did not regret sending that email, but
rather supports this fact because Dr. Rivero says “[t]here’s nothing wrong with the language [in
the email], sir” and “I was tired of [Barela] attacking me every time instead of trying to resolve
the issues.” Rivero Depo. 191 at 108:4-5, 16-18. Accordingly, the Court deems this adopted
fact undisputed.
39

Dr. Rivero purports to dispute this fact “to the extent it is inconsistent with the express
statements in the cited exhibit. Furthermore, Dr. Rivero was never asked about the allegations of
the Complaint, and an accompanying resident refuted the allegations.” Rivero’s Response ¶ 13,
at 3 (citing Rivero Depo. 191 at 186:16-188:16; Letter from Dr. Shannon Redmon at 14 (dated
July 29, 2008), filed March 8, 2018 (Doc. 191-5)). First, although Dr. Rivero does not dispute
the OCR Letter as inadmissible hearsay, the Court determines that the evidence is admissible.
The OCR Letter is not double hearsay, because it is not offered to prove the truth of the
complaints but rather that UNM had received notice of complaints made to the United States
Department of Health and Human Services Office for Civil Rights. Further, UNM may provide
the evidence that such complaints were made in an admissible form, as Dr. Rivero acknowledged
that such complaints were filed against UNM and that UNM knew of them. See Rivero Depo.
191 at 186:16-187:7. Second, the fact is not inconsistent with the statements in the OCR Letter,
for the Letter states that a patient complained about Dr. Rivero’s making statements “reflecting
his belief that persons of Mexican origin, such as [the patient and her son], would not pay for
services rendered by the Hospital, and they did not have the means to pay for services rendered
and other derogatory statements about Mexicans.” OCR Letter at 1. UNM’s proffered fact says,
“two of Dr. Rivero’s former patients,” but the Court changed this to “one” to more accurately
reflect the statements in the OCR Letter. UNM’s MSJ ¶ 13, at 5. The portions of the record to
which Dr. Rivero cites to dispute this fact merely dispute the veracity of the complaint itself and
not that such a complaint was made. See Rivero Depo. 191 at 186:16-188:16; Letter from
Dr. Shannon Redmon at 14. The Court therefore deems this fact undisputed.

- 26 -

3.

Dr. Rivero’s Request to Return to Full Time Employment with UNM.

After several months of working at UNM at 0.05 FTE, Dr. Rivero “contacted the chair of
UNM’s Department of Orthopedics, Dr. Robert Schenck, asking to return full time” or to 0.75
FTE. UNM’s MSJ ¶ 26, at 7 (asserting this fact)(citing FAC ¶16, at 3). See Rivero’s Response
¶ 26, at 5 (admitting this fact). “Dr. Rivero sought to increase his level of participation to .75 to
1.0 FTE, or completely full-time, as Defendant had promised.” Rivero’s MSJ ¶ 5, at 3 (asserting
this fact)(citing Rivero Depo. 144 at 152:19-24).40 “In a letter to Dr. Schenck in support of his
request, Plaintiff stated that he had ‘learned his lesson.’” UNM’s MSJ ¶ 27, at 7 (asserting this
fact)(quoting Letter from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 28 (dated June 24,
2007), filed December 8, 2017 (Doc. 143-1)(“Request Letter”)).41 Dr. Rivero “noted that the
lesson was that [it is important that] he . . . get along with people.” UNM’s MSJ ¶ 28, at 7

40

“UNM disputes the inference that any agent of UNM ‘promised’ [Dr. Rivero] that he
could return to full time, much less that this was contractually binding. Plaintiff merely had a
conversation with Dr. Schenck and was told informally that he could return if he so desired.”
UNM’s Response ¶ 5, at 2. UNM admits, however, that Dr. Schenck told Dr. Rivero he could
return to full time status and notes no portion of the record to dispute this “promise.” The Court
thus deems this fact undisputed. Further, UNM argues the fact is immaterial, UNM’s Response
¶ 5, at 2, but again immateriality does not bring the fact into dispute, see supra note 10.
41

Dr. Rivero “disputes [this fact] as immaterial and an incomplete statement of an exhibit
that speaks for itself.” Rivero’s Response ¶ 27, at 5. The Court will deal with materiality in the
Analysis. See supra note 10. Further, that the statement is “incomplete” does not refute that
Dr. Rivero wrote: “I would like to reassure you that I have learned my lesson.” Request Letter at
28. The Court thus deems this fact undisputed.

- 27 -

(citing Rivero Depo. 143 at 163:5-9).42 “Dr. Schenck asked Plaintiff to apologize to Mr. Barela.”
UNM’s MSJ ¶ 29, at 7 (asserting this fact)(citing Rivero Depo. 143 at 171:10-16).43 Dr. Rivero
“wr[o]te a letter of apology, but the letter included a[] . . . paragraph denying all inappropriate
behavior.”44 UNM’s MSJ ¶ 30, at 7 (asserting this fact)(citing Letter from Dr. Dennis Rivero to

42

Dr. Rivero “disputes [this fact] as immaterial and a misstatement of the cited
testimony.” Rivero’s Response ¶ 28, at 5. This response does not specifically controvert the
fact, because the Court will deal with materiality in the Analysis, and this fact, as the Court
adopts it, is not a misstatement of the deposition testimony. See D.N.M.LR-Civ. 56.1(b). The
testimony reads:
Q.

All right. Let me back up a little bit. In -- in the first sentence you said, “I
would like to reassure you that I have learned my lesson.” What lesson
was that?

A.

It’s important to get along with people.

Rivero Depo. 191 at 163:5-9. Accordingly, the Court deems this fact undisputed.
43

Dr. Rivero purports to dispute this fact as immaterial, see Rivero’s Response ¶ 29, at 5,
however, as discussed supra note 10, a materiality argument does not controvert the asserted fact,
so the Court deems this fact undisputed.
44

UNM also asserts that “Mr. Barela later stated that he did not believe that Plaintiff was
truly contrite, and that Plaintiff was the worst physician with whom he interacted at UNM.”
UNM’s MSJ ¶ 31, at 7 (citing Notes at 31 (undated), filed December 8, 2017 (Doc. 143-1)).
Dr. Rivero disputes this fact “as hearsay and immaterial and as a scandalous mischaracterization
of testimony taken out of context. The notes cited speak for themselves.” Rivero’s Response
¶ 31, at 5. These notes are hearsay, offered to prove that Barela said these things, and UNM has
offered no exception under which the Court may admit this evidence. In its Reply, UNM states:
Plaintiff does not dispute UMF No. 31. Plaintiff admits that the notes speak for
themselves. Moreover, these notes explain why UNM officials reasonably
believed that Plaintiff had no intention of improving his professionalism. UNM
noted that Mr. Barela did not believe that Plaintiff was truly contrite.

- 28 -

Willie Barela at 29 (dated June 11, 2007), filed December 8, 2017 (Doc. 143-1)(“Apology
Letter”)).45 “Shortly after Plaintiff requested a return to full time employment, Dr. Robert Bailey
sent an e-mail describing alleged [‘[i]ssues involving Dr. Rivero from ~2003-2006’]”: (i) a
complaint made against Dr. Rivero to the accreditation organization Joint Commission on
Accreditation of Healthcare Organizations (“JCAHO”) “alleging unprofessional behavior”;
(ii) “[a]pproximately 10 patient complaints alleging that Dr. Rivero made disparaging comments
about a patient’s inability to speak English, Dr. Rivero’s focus on money and payment, his
dismissing of patients because of concerns that he would not get paid, and his anger management
issues”; (iii) a complaint to the United States Department of Health and Human Services’ Office
for Civil Rights “alleging discrimination against a patient because he did not speak English,”
which required “an extensive response”; (iv) “[c]omplaints from a Coalition that advocated for
improved healthcare for indigent and other patients”; (v) “[a] complaint from an Indian Health

Accordingly, Plaintiff was not sincere when he carried out the one action that he
was asked to take.
UNM’s Reply ¶ 31, at 6. This Reply provides no basis on which this hearsay evidence is
admissible. Although the notes could show UNM’s state of mind, there is no indication on these
notes of who compiled them or when. Further, UNM clearly wants to prove Barela’s belief that
Dr. Rivero was not sincere in his apology, but this is hearsay contained within the hearsay of the
notes, and inadmissible. The Court accordingly does not admit this evidence.
45

Dr. Rivero purports to dispute this fact as immaterial and argues that UNM
“mischaracterizes the cited exhibit as containing an ‘unnecessary’ paragraph, though Dr. Rivero
states that Defendant made a practice of disregarding any statements of Dr. Rivero that defended
his conduct, integrity, and character.” Rivero’s Response ¶ 30, at 5. With this characterization
omitted from the fact, and because the Court will deal with materiality in the Analysis, the Court
deems this fact undisputed.

- 29 -

Services physician in Chinle, AZ regarding a consult with Dr. Rivero”; (vi) “[a] complaint from
a physician from the organization Healthcare for the Homeless regarding a PALS consult with
Dr. Rivero”; (vii) “[a] complaint from the [operating room] director involving anger
management issues”; (viii) “[a] complaint from a surgeon regarding anger management”;
(ix) “[a] request from the Patient Assistance Coordinator that he not have to interact with Dr.
Rivero, prompted by previous interactions with Dr. Rivero.” UNM’s MSJ ¶ 32, at 7-8 (asserting
this fact)(quoting and citing Email from Dr. Robert Baily to Dr. David Pitcher, Dr. Robert Katz,
John Trotter, PhD, Dr. Paul Roth, and Steve McKernan at 1 (dated November 5, 2007), filed
December 8, 2017 (Doc. 143-3)(“Complaints Email”)).46 About seven months later, “JCAHO

46

Dr. Rivero disputes this fact as misleading, because, in the Complaints Email, “Dr.
Bailey at no time mentions anything about ‘professionalism,’” Rivero’s Response ¶ 32, at 6, and
UNM’s proffered fact construes the Complaints Email as a “history concerning Plaintiff’s lack of
professionalism,” UNM’s MSJ ¶ 32, at 7. The nature of the complaints speaks for itself, so the
Court inserts quoted language from the Complaints Email describing the complaints as “issues.”
Complaints Email at 1. Dr. Rivero also disputes the Complaints Email as hearsay, and states that
UNM “provides no supporting evidence of the veracity or bases for complaints cited by Dr.
Bailey, who has could [sic] not state that he investigated them.” Rivero’s Response ¶ 32, at 6
(citing Deposition of Dr. Robert Bailey at 106:8-14 (taken September 11, 2017), filed March 8,
2018 (Doc. 191-5)(“Bailey Depo.”)). The Complaints Email is not offered to prove the truth of
the complaints it outlines; it is offered to prove UNM’s notice of complaints made against Dr.
Rivero. Therefore, the Complaints Email is admissible solely to show that UNM had notice of a
number of complaints brought against Dr. Rivero. That these complaints are ungrounded or that
“Dr. Rivero was never found to have been at fault for any complaints,” as Dr. Rivero argues,
does not dispute the fact that such complaints were made and that UNM knew of them. Rivero’s
Response ¶ 32, at 6 (citing Board of Regents of the University of New Mexico’s Supplemental
Responses and Objections to Plaintiff Dennis Rivero’s Second Set of Requests for Production of
Documents, and Second Requests for Admission at 2 (undated), filed March 8, 2018 (Doc. 1918)). UNM is offering this evidence to show its concern with Dr. Rivero’s conduct in the
workplace, its belief that he had issues, and not that these complaints are true For this limited

- 30 -

released a national Sentinel Event Alert noting that unprofessional behavior ‘undermine[s] a
culture of safety,’ and instituted a New Leadership Standard that addresses disruptive and
unprofessional behavior.” UNM’s MSJ ¶ 33, at 8 (quoting Sentinel Event Alert Issue 40:
Behaviors That Undermine a Culture of Safety, Joint Commission at 1 (dated July 9, 2008), filed
December 8, 2017 (Doc. 143-4)(“Sentinel Alert”)).47 At the time, UNM School of Medicine had
a “Statement of Professionalism,” which states:
In the School of Medicine, there is a commitment to the attributes of
professionalism, which include altruism, accountability, excellence, duty,
honesty, integrity and respect. For clinical faculty engaged in patient care, there
is a further responsibility to apply these attributes to their interactions with
patients, patient families, and significant others such that patient health care needs
and the privacy and confidentiality of patient information takes precedence over
self-interest.

purpose, to show UNM’s concern with Dr. Rivero’s return to full-time employment, the
Complaints Email is not hearsay and is admissible.
47

Dr. Rivero disputes the fact as immaterial and the Sentinel Alert as hearsay. See
Rivero’s Response ¶ 33, at 6. As previously discussed, a materiality argument does not
specifically controvert the fact, so the Court deems this fact undisputed. See supra note 10.
Further, the Sentinel Alert is not inadmissible hearsay, because UNM is not offering it to prove
the truth of the matters it asserts -- that unprofessional behavior is unsafe -- but to show that such
Alert issued, and is thus admissible for that purpose. UNM asserts that the Sentinel Alert is
admissible as a business record of JCAHO, see UNM’s Reply ¶ 33, at 7, but the Court cannot
make that determination, as UNM has not laid the appropriate foundation for this, see United
States v. Ary, 518 F.3d at 786.

- 31 -

“Statement of Professionalism,” UNM School of Medicine (approved October 24, 2002), filed
December 8, 2017 (Doc. 143-5). See UNM’s MSJ ¶ 33, at 8 (asserting this fact)(citing the
Statement of Professionalism).48

48

UNM’s proffered fact states that JCAHO’s Sentinel Alert “reinforced UNM’s existing
commitment to the professionalism of its physicians.” UNM’s MSJ ¶ 33, at 8 (citing the
Statement of Professionalism). The Court does not see how the Statement of Professionalism
shows that the Sentinel Alert reinforced UNM’s commitment to professionalism and thus does
not adopt this fact. It is true, however, that UNM had a Statement of Professionalism at the time,
and the Court thus provides that Statement as a fact. Dr. Rivero disputes this fact as discussed
supra note 47, and contends the Statement is hearsay. The Statement of Professionalism is not
hearsay, however, as it does not qualify as a “statement,” see Fed. R. Evid. 801(c), because it is
unclear whether it is intended as an assertion, see Fed. R. Evid. 801(a). See also Schimpf v.
Gerald, Inc., 52 F. Supp. 2d 976, 992 (E.D. Wis. 1999)(Adelman, J.)(“I am presently
unconvinced that an existing policy is itself any type of statement.”). As Dr. Rivero claims the
Statement of Professionalism is hearsay, he bears the burden of “whether an assertion is
intended” and, because this is an “ambiguous and doubtful case[, it] will be resolved against him
and in favor of admissibility.” Fed. R. Evid. 801 advisory committee’s note to subdivision (a).
Further, even if the Statement of Professionalism constitutes a “statement” for the rule against
hearsay, the Statement is not offered for the truth of the matter, but to show that UNM had such a
statement. Dr. Rivero does not dispute that UNM had such a statement, but rather argues that
UNM “has never specifically defined ‘professionalism’ as it applied to Dr. Rivero, but has
excluded the statutory definition of professionalism from its consideration.” Rivero’s Response
¶ 33, at 6 (citing Rivero v. Board of Regents of the Univ. of N.M., D-202-CV-2011-08104,
Transcript of Proceedings at 139:7 (dated August 3, 2012), filed March 8, 2018 (Doc. 191-10);
Schenck Depo. 191 at 37:8-38:11; N.M. Stat. Ann. § 61-6-15; N.M. Admin. Code 16.10.8.8).
This evidence does not bring into dispute that UNM had adopted a Statement of Professionalism,
and neither does Dr. Rivero’s assertion that UNM “had no policies that it applied with respect to
professionalism or the imposition of the medical examination” UNM required of him. Rivero’s
Response ¶ 33, at 6 (citing Rivero’s Interrogatory No. 4, Answer at 1-2 (undated), filed March 8,
2018 (Doc. 191-9)). Further, the exhibit to which Dr. Rivero cites contradicts his assertion that
UNM had no policies on professionalism, and UNM points to a number of documents requiring
that physicians act professionally, although UNM admits that it “has no set policy pertaining to
mental examinations.” Rivero’s Interrogatory No. 4, Answer at 2. See Rivero’s Interrogatory
No. 4, Answer at 1. The Court accordingly deems this fact undisputed.

- 32 -

While Dr. Rivero awaited UNM’s decision on his request to return to full time status, he
“continued to work full-time in Oklahoma in private practice.” 49 Rivero’s MSJ ¶ 7, at 3
(asserting this fact)(citing Rivero Depo. 144 at 174:15-21). See UNM’s Response ¶ 7, at 2 (not
disputing this fact). Three years later, in 2010, Dr. Rivero “filed a Complaint with the Academic
Freedom and Tenure Committee, claiming that Dr. David Pitcher had been spreading false
rumors about him, and that this prevented him from returning to full time status.” UNM’s MSJ
¶ 34, at 9 (asserting this fact)(citing Letter from Dr. Dennis Rivero to Dr. Victor Strasburger at 1
(dated October 5, 2010), filed December 8, 2017 (Doc. 143-6)). See Rivero’s MSJ ¶ 8, at 3
(asserting this fact)(citing Rivero Depo. 144 at 186:2-6).50 “The [Academic Freedom and Tenure

49

Dr. Rivero proffers that UNM “impeded [his attempt to return to full time status],
despite recommendations and high regard of Dr. Rivero’s colleagues.” Rivero’s MSJ ¶ 6, at 3
(citing Rivero Depo. 144 at 180:19-25; id. at 183:2-186:6). The deposition testimony does not
support this “fact,” and the Court cannot adopt it. Dr. Rivero testified that, every quarter, he
would discuss with Dr. Schenck his request’s progress, and that he has “no doubt that
Dr. Schenck advocated on my behalf at the beginning of the affair.” Rivero Depo. 144 at 184:24. See id. at 183:2-20. Dr. Rivero stated that “residents or the faculty wr[ote] a letter to Dr. Roth
asking for [his] return,” but admits he only knows that through “testimony.” Rivero Depo. 144
at 184:11-12, 14. Dr. Rivero then discussed a department meeting in “the summer of 2008,”
Rivero Depo. 144 at 184:20, where Dr. Roth told everyone at the meeting “words to the effect,
[‘]Dr. Rivero will not be allowed to return because, if he does, civil lawsuits will follow him,[’]”
Rivero Depo. 144 at 185:2-5, but does not discuss how he knows this occurred. Dr. Rivero thus
points to no personal knowledge that his colleagues provided recommendations or that UNM
impeded his request.
50

Dr. Rivero disputes UNM’s version of this fact as immaterial. See Rivero’s Response
¶ 34, at 6. This argument does not specifically controvert the proffered fact, and Dr. Rivero
proffers the same fact in his MSJ, so the Court deems this fact undisputed. See supra note 10.

- 33 -

Committee] found Plaintiff’s Complaint to be without merit.” UNM’s MSJ ¶ 35, at 9 (asserting
this fact)(citing Rivero Depo. 143 at 206:14-207:14).51
Then, “[o]n December 10, 2010, Dr. Robert Schenck -- Chairman of the Department of
Orthopedic Surgery and Rehabilitation -- and Dr. Rivero met with one another to discuss
possible terms by which Dr. Rivero would” increase his employment.52 Rivero’s MSJ ¶ 9, at 3
(asserting this fact)(citing Rivero Depo. 144 at 206:10-207:14; Deposition of Dr. Robert
Cumming Schenck, Jr. at 11:13-24 (taken September 13, 2017), filed December 8, 2017
(Doc. 144-2)(“Schenck Depo. 144”); Note at 13 (dated December 10, 2010), filed December 8,
2017 (Doc. 144-1)). See UNM’s Response ¶ 9, at 3 (admitting this fact). “The outcome of the
meeting was memorialized by a handwritten note.” Rivero’s Response ¶ 27, at 14 (asserting this
fact)(citing Note at 13).53 See UNM’s Reply ¶¶ 27-28, at 12 (not disputing this fact). “At the

51

Dr. Rivero disputes this fact as immaterial, see Rivero’s Response ¶ 35, at 6, but as
discussed supra note 10, the Court deals with materiality issues in the Analysis and, thus,
because Dr. Rivero notes no portion of the record specifically controverting this fact, the Court
deems this fact undisputed.
52

Dr. Rivero’s proffered fact states, after the “would,” “return to full-time status, which
included four counseling sessions.” Rivero’s MSJ ¶ 9, at 3. The Court notes that, although
UNM admits this fact, its own proffered fact and the record shows that the planning with
Dr. Schenck was to increase Dr. Rivero’s employment -- to 0.75 FTE -- and not to full-time
status. See UNM’s MSJ ¶ 36, at 9 (asserting this fact)(citing Rivero Depo. 143 at 206:14207:14). See Rivero’s Response ¶ 36, at 7 (admitting this fact); id. at ¶ 27, at 14 (asserting this
fact). Accordingly, the Court has changed Dr. Rivero’s proffered fact to match the record, and
deems it undisputed. The Court discusses the counseling sessions later.
53

The Note is inadmissible hearsay, but Dr. Schenck testified as to the contents of the
Note, stating that he remembered making the statements contained therein except for the phrase,

- 34 -

meeting with Dr. Schenck, Plaintiff agreed to attend four counseling sessions, and if he attended
the counseling sessions, he could gradually return to 0.75 FTE.” UNM’s MSJ ¶ 37, at 9
(asserting this fact)(citing Rivero Depo. 143 at 206:14-207:14).54 See Rivero’s Response ¶ 28, at
15 (asserting this fact).55 They also agreed that a term of Dr. Rivero’s return be that “Dr. Rivero

“absolve of complicity by Pitcher.” Schenck Depo. 191 at 107:22-23 (internal quotation marks
omitted)(quoting Note at 13). See Schenck Depo. 191 at 107:8-108:24.
54

Dr. Rivero purports to dispute this fact “to the extent that it omits the complete content
of the outcome of the meeting with Dr. Schenck,” Rivero’s Response ¶ 37, at 7, but this response
does not specifically controvert this fact, so the Court deems it undisputed, see D.N.M.LR-Civ.
56.1(b).
55

The Court will not adopt the entirety of Dr. Rivero’s additional fact 28. Besides saying
that Dr. Schenck and Dr. Rivero agreed to four counseling sessions, it provides: “Counseling at
no point involved a ‘psychiatric evaluation.’ Indeed, counseling was an informal approach, as
exhibited in a document from 2009, wherein Dr. Schenck stated that he had provided
‘counseling’ to Dr. Rivero.” Rivero’s Response ¶ 28, at 15 (citing Rivero Depo. 191 at 210:114; id. at 215:23-216:11; Letter from Sandra Bell to Univ. Orthopedics at 16 (dated June 10,
2009), filed March 8, 2018 (Doc. 191-5)). Dr. Rivero testified that his understanding of
counseling involves “[g]etting advice from somebody” and that he “never agreed to a psychiatric
evaluation.” Rivero Depo. 191 at 210:3, 5. Dr. Rivero admitted that “a psychiatrist might do the
counseling,” but argued that this fact “does not mean that [he is] agreeing to a mental
evaluation.” Rivero Depo. 191 at 215:25-216:2. Dr. Schenck testified that his understanding of
counseling involved “[p]sychological or psychiatric counseling” for “four sessions,” and not “a
medical examination.” Schenck Depo. 191 at 108:13-14; id. at 109:11, 14. These depositions
reveal that both parties to this meeting had different understandings of what was meant by
counseling, as Dr. Rivero inferred something informal which anybody could do, see Rivero
Depo. 191 at 210:10-16, and Dr. Schenck meant something a physician does, see Schenck Depo.
191 at 108:13-24. Further, the letter that Dr. Rivero cites has no indication what was meant by
the “discussion/counseling” that Dr. Rivero received, so the Court cannot say that it is a fact that
counseling was to be informal. Letter from Sandra Bell to Univ. Orthopedics at 16. Finally,
with no definition of “psychiatric evaluation,” the Court cannot soundly say for a fact that
counseling is not a psychiatric evaluation. As Dr. Schenck testified, both psychiatrists and
psychologists may provide counseling, with the difference being that “[a] psychiatrist can
prescribe medicines, and can prescribe counseling,” Schenck Depo. 191 at 108:23-24, see id. at

- 35 -

was not to be on call,” because “being ‘on call’ created too much stress for Dr. Rivero, which
triggered his ‘lack of professionalism.’” Rivero’s Response ¶ 29, at 15 (asserting this fact)(first
quoting Deposition of Dr. Robert Cumming Schenck, Jr. at 79:19 (taken September 13, 2017),
filed March 8, 2018 (Doc. 191-4)(“Schenck Depo. 191”); then quoting id. at 79:25-80:1; and
then citing Schenck Depo. 191 at 41:8-18; id. at 78:15-80:7). See UNM’s Reply ¶ 29, at 12 (not
disputing this fact).56 “Dr. Strasburger suggested that Plaintiff meet with Dr. Jeff Katzman, a
psychiatrist, for his counseling.” UNM’s MSJ ¶ 38, at 9 (asserting this fact)(citing Email from
Dr. Victor Strasburger to Dr. Dennis Rivero at 32 (dated December 11, 2010), filed December 8,
2017 (Doc. 143-1)(“Strasburger Email”)).57 Dr. Rivero emailed “Dr. Katzmann [sic], stating that
he would like to set up counseling sessions,” UNM’s MSJ ¶ 39, at 9 (asserting this fact)(citing
Email from Dr. Dennis Rivero to Dr. Jeff Katzman at 32 (dated December 21, 2010), filed
December 8, 2017 (Doc. 143-1)(“Counseling Email”)), “contingent upon [Dr. Rivero’s]

108:13-14, which seems to allow the inference that an evaluation that a psychiatrist conducts
may involve counseling and, thus, the Court concludes that Dr. Rivero’s proffered fact is
incorrect.
56

UNM does not dispute this fact, but “states that Plaintiff’s proposed ‘no call’ status is
immaterial. A materiality argument does not specifically controvert the fact, so the Court deems
it undisputed. See supra note 10.
57

Dr. Rivero disputes this fact as immaterial. This response does not specifically
controvert the fact, and the Court will deal with materiality in the Analysis, so the Court deems
this fact undisputed. See supra note 10. The email offered for this purpose of showing that the
statement was made is not hearsay, and thus is admissible.

- 36 -

finalizing an agreement to return,” Rivero’s Response ¶ 39, at 7. 58 Dr. Rivero, however,
“probably would not have seen [Dr. Katzman] under any circumstances.” UNM’s MSJ ¶ 40, at 9
(asserting this fact)(citing Rivero Depo. 143 at 223:15-23).59

58

Dr. Rivero disputes UNM’s proffered fact as a mischaracterization, see Rivero’s
Response ¶ 39, at 7, so the Court adds his assertion as to not misconstrue the exhibit -- which
says that Dr. Rivero will contact Dr. Katzmann “to arrange [their] meetings” when “the
agreement that will allow [Dr. Rivero] to transition back to .75FTE . . . is formalized,”
Counseling Email at 32. Dr. Rivero also disputes the fact as immaterial and irrelevant, but this
response does not specifically controvert the fact, so the Court deems it undisputed. UNM
similarly states that “[t]he fact that the e-mail was contingent upon finalizing an agreement to
return is irrelevant,” UNM’s Reply ¶¶ 38-39, at 7, but this does not specifically controvert the
fact, so the Court deems it undisputed.
59

Dr. Rivero disputes this fact as “immaterial, irrelevant, and a mischaracterization of
testimony.” Rivero’s Response ¶ 40, at 7. The Court has removed UNM’s characterization of
Dr. Rivero’s email to Dr. Katzman as “a falsehood,” UNM’s MSJ ¶ 40, at 9, but concludes the
remainder of the fact is not a mischaracterization of Dr. Rivero’s testimony. The relevant
portion of his deposition reads as follows:
Q.

But you -- it sounded like -- like you were willing to go see a psychiatrist,
though?

A.

No.

Q.

Then why -- so you were not planning to see him at all under any
circumstances?

A.

Probably not, sir. In all truthfulness, I probably would have not even -even if the addendum had come out properly, I probably would have
objected to it. The reason I agreed to this was because Dr. Strasburger
implied it, and I didn’t want to get into an argument with him.

Rivero Depo. 191 at 223:15-25. Accordingly, because materiality will be dealt with in the
Analysis and does not specifically controvert the fact, see supra note 10, the Court deems this
fact undisputed.

- 37 -

4.

The Addendum.

“In early 2011,” Dr. Rivero received an addendum to his employment contract. Rivero’s
Response ¶ 30, at 15 (asserting this fact)(citing Addendum No. 1 to Contract UNM School of
Medicine By and Between The University of New Mexico and Dennis P. Rivero, M.D. (dated
February 15, 2011), filed November 9, 2016 (Doc. 28-1)(“Addendum”); Rivero Depo. 191 at
225:6-227:11).

See UNM’s Reply ¶¶ 30-32, at 12 (admitting this fact).

The Addendum

“required Dr. Rivero to submit to . . . ‘a four-part psychiatric evaluation by a board-certified
psychiatrist acceptable to the Chair of the Department of Orthopedics and Rehabilitation,’” the
cost of which was to be borne by Dr. Rivero, and the time spent in such “examinations would be
considered ‘administrative leave.’” 60

Rivero’s Response ¶ 31, at 15-16 (asserting this

60

The Court does not find the entirety of Dr. Rivero’s proffered additional fact 31
undisputed and admissible. The first sentence reads: “The Addendum did not reflect the basic
directive reached in December 2010 regarding counseling.” Rivero’s Response ¶ 31, at 15
(citing Rivero Depo. 191 at 298:18-299:16; id. at 299:25-300:5; id. at 300:14-23). Dr. Rivero
felt that “[t]he addendum was completely different from what was discussed,” Rivero Depo. 191
at 300:19-20, but UNM maintains that this psychiatric evaluation requirement “constituted the
four counseling sessions to which [Dr. Rivero] agreed at the meeting with Dr. Schenck,” UNM’s
MSJ ¶ 41, at 9. See Rivero’s Interrogatory No. 5, Answer at 1-2 (undated), filed March 8, 2018
(Doc. 191-24)(“UNMH determined that one way to address the concerns about professionalism,
and to allow Plaintiff to return to his desired 0.75 FTE, would be to have Plaintiff undergo
psychological counseling, which would necessarily include an evaluation.”). The Addendum
itself does not describe what is meant by “Psychiatric Evaluation,” so the Court cannot say what
this term means with respect to Dr. Rivero. This lack of a definition is not material, however, for
as discussed in the Analysis infra Part II, even if the psychiatric evaluation constituted a more indepth examination than merely counseling as Dr. Rivero asserts, UNM is still entitled to
summary judgment.
The second sentence reads:

- 38 -

fact)(quoting Addendum ¶ 2 and (a), at 2; and citing Rivero’s Request for Admission No. 17
(undated), filed March 8, 2018 (Doc. 191-23)). See UNM’s Reply ¶¶ 30-32, at 12 (admitting this
fact). The Addendum also provides that “Dr. Schenck and the Associate Dean of Academic
Affairs would have access to” progress reports following each part of the evaluation which
describe Dr. Rivero’s continued participation in the evaluation, the psychiatrist’s
recommendations -- such recommendations the Addendum deems mandatory -- and Dr. Rivero’s
compliance with these recommendations. 61 Rivero’s Response ¶ 31, at 16 (asserting this

Instead, the Addendum’s terms were harsh and required Dr. Rivero to
submit to an onerous medical psychiatric examination as a condition of
employment, specifically “a four-part psychiatric evaluation by a board-certified
psychiatrist acceptable to the Chair of the Department of Orthopedics and
Rehabilitation” in an attempt to delve for a “psychological condition.”
Rivero’s Response ¶ 31, at 15-16 (citing Addendum ¶ 2, at 2; Rivero’s Request for Admission
No. 17 at 1 (undated), filed March 8, 2018 (Doc. 191-23); Rivero’s Interrogatory No. 5, Answer
at 1). This “fact” characterizes the terms of the Addendum, which is not a fact, and states that
this requirement was imposed to find a psychological condition, which the record does not
support. Although UNM’s answer to Rivero’s Interrogatory 5 says, “[i]n order to determine how
to improve Plaintiff’s professionalism, it was necessary to determine if Plaintiff was suffering
from a psychological condition,” Rivero’s Interrogatory 5, Answer at 1, it also says that “UNMH
determined that one way to address the concerns about professionalism, and to allow Plaintiff to
return to his desired 0.75 FTE, would be to have Plaintiff undergo psychological counseling,
which would necessarily include an evaluation,” Rivero’s Interrogatory 5, Answer at 1-2. This
answer does not say that UNM imposed the evaluation/counseling requirement to determine if
Dr. Rivero had a psychological condition, but the answer could support that inference. An
inference, however, is not a fact. The Court also does not adopt Dr. Rivero’s “fact” that he
would have to pay for the psychiatrist “out-of-pocket,” Rivero’s Response ¶ 31, at 16, because
the Addendum states that the cost of the evaluation “shall be borne by Rivero,” Addendum
¶ 2(b), at 2. The Court therefore adopts the fact as provided, without Dr. Rivero’s
characterizations or inferences.
61

Again, the Court does not admit the entirety of Dr. Rivero’s proffered fact as he writes
it, because the record does not support a portion of it. This portion of Dr. Rivero’s fact 31 reads:

- 39 -

fact)(citing Addendum ¶ 2(c), at 2). See UNM’s Reply ¶¶ 30-32, at 12 (admitting this fact). The
reports and recommendations that the psychiatrist would provide “were to be ‘confidential,’”
although a copy may be “placed in Dr. Rivero’s medical staff file.”62 Rivero’s Response ¶ 31, at
16 (asserting this fact)(quoting Addendum ¶ 2(d), at 2). See UNM’s Reply ¶¶ 30-32, at 12

“Then Dr. Schenck and the Associate Dean of Academic Affairs would have access to
Dr. Rivero’s psychiatric records, irrespective of content and would know of the expressly
mandatory ‘treatment recommendations.’” Rivero’s Response ¶ 31, at 16 (quoting Addendum
¶ 2(c), at 2; and citing Rivero Depo. 191 at 250:3-16). The Addendum does not state that Dr.
Schenck and the Associate Dean of Academic Affairs would have unfettered access to Dr.
Rivero’s psychiatric records, but that they would be provided “progress reports . . . following
each of the four (4) parts of the Psychiatric Evaluation, setting forth any recommendations by the
psychiatrist performing the Psychiatric Evaluation, and compliance with those recommendations
and/or requirements.” Addendum ¶ 2(c), at 2. The portion of Dr. Rivero’s deposition to which
he cites does not change this language, as it repeats the Addendum’s requirement that the
psychiatrist’s treatment recommendations would be mandatory. See Rivero Depo. 191 at 250:316. The Court therefore adopts the fact as provided, which the record supports.
62

This portion of Dr. Rivero’s proffered fact states: “Ostensibly, Dr. Rivero’s records
were to be ‘confidential,’ except they would be placed in Dr. Rivero’s medical staff file,
allowing any future parties who may seek to credential Dr. Rivero (including other hospitals) to
review the records of psychiatric evaluations.” Rivero’s Response ¶ 31, at 16 (quoting
Addendum ¶ 2(d), at 2). The portion of the Addendum to which Dr. Rivero cites reads:
Rivero will execute all necessary consents and/or authorizations to enable
the psychiatrist performing the Psychiatric Evaluation to provide reports and other
recommendations in respect of Rivero (arising out of the Psychiatric Evaluation)
directly to the Department Chair and to the [Associate Dean of Academic
Affairs]. In this connection, any such reports and recommendations from the
Psychiatric Evaluation shall be kept confidential except as may be necessary to
ensure compliance with this Addendum and a copy thereof may be maintained in
Rivero’s confidential medical staff file in the Office of Clinical Affairs.
Addendum ¶ 2(d), at 2. The reports, thus, were not necessarily going to be placed in
Dr. Rivero’s medical staff file, which is also confidential, and there is no indication who would
have access to this file. Accordingly, the Court will not adopt Dr. Rivero’s fact in full.

- 40 -

(admitting this fact). “Discretionary determination of [Dr. Rivero’s] non-compliance [with the
Addendum] by UNM would lead to termination, but it would be deemed a resignation.”
Rivero’s Response ¶ 31, at 16 (asserting this fact)(citing Addendum ¶ 3, at 3). See UNM’s
Reply ¶¶ 30-32, at 12 (admitting this fact). “The Addendum contains no term as to Dr. Rivero’s
‘on call’ status,” and “Dr. Rivero would be forced to waive all rights to appeal internally or to
legal recourse for any abuse or discrimination or wrongful act by UNM regarding the records
stemming from the medical examination, including constitutional rights.” Rivero’s Response
¶ 31, at 16 (asserting this fact)(emphasis in Rivero’s Response)(citing Addendum ¶ 7, at 5). See
UNM’s Reply ¶¶ 30-32, at 12 (admitting this fact). “The conditions of the Addendum were
required to be met for Dr. Rivero to increase his level of employment with UNM.” Rivero’s
Response ¶ 32, at 16 (asserting this fact)(citing Addendum ¶ 5, at 4; Rivero’s Request for
Admission No. 17). See UNM’s Reply ¶¶ 30-32, at 12 (admitting this fact).63
“Dr. Rivero was shocked by the requirements of the Addendum and wanted to find out
the basis for them, especially the requirement of a medical psychiatric exam and why he would

63

The Court does not adopt Dr. Rivero’s proffered fact 33. The proffered fact states:
“Dr. Schenck consulted no policies regarding ‘professionalism’ in assisting in the drafting of the
Addendum.” Rivero’s Response ¶ 33, at 16 (citing Schenck Depo. 191 at 175:11-17). UNM
notes that “Dr. Schenck did not draft the addendum at issue.” UNM’s Reply ¶ 33, at 12 (citing
Schenck Depo. 191 at 113:7-16). Dr. Schenck stated at his deposition that he did not draft the
Addendum, although he “participated in giving some of the bullet points of how [they] would
structure coming back.” Schenck Depo. 191 at 113:14-15. See id. at 113:10-11. Further, the
portion of the Schenck Depo. to which Dr. Rivero cites for his fact states that Dr. Schenck did
not know if a UNM policy existed regarding referring physicians to psychiatric examinations.
This fact is thus lacks support in the record, and the Court will not adopt it.

- 41 -

have to waive all rights to appeal given that he had never been disciplined.” Rivero’s Response
¶ 34, at 16-17 (asserting this fact)(citing Rivero Depo. 191 at 298:18-299:16; id. at 302:17-23).64
“Dr. Schenck acknowledged that [he believed] the Addendum was ‘onerous’ and ‘draconian.’”
Rivero’s Response ¶ 35, at 17 (quoting Schenck Depo. 191 at 179:5, 14).65 Dr. Rivero “sent an
e-mail to Dr. Schenck, asking for an extension of time to sign the Addendum, and noting that he
agreed to counseling, but complaining about the language regarding the psychological
evaluation.” UNM’s MSJ ¶ 42, at 10 (asserting this fact)(citing Email from Dr. Dennis Rivero to
Dr. Robert Schenck, Jr. at 1 (dated March 9, 2011), filed December 8, 2017 (Doc. 1437)(“Extension Email”)).66 Thereafter, “Dr. Rivero sought access to his ‘Credentialing File’ to
investigate any support whatsoever for the requirement of a psychiatric investigation,” and so,
“on March 24, 2011, . . . to view his Credentialing File before the deadline to accept of April 10,
2011, Dr. Rivero visited the Office of Clinical Affairs at UNMHSC with his attorney.” Rivero’s
Response ¶ 36, at 17 (asserting this fact)(citing Rivero Depo. 191 at 244:25-245:21; id. at 247:1-

64

In response, UNM states this fact is immaterial and that “this procedural history is at
issue in a prior pending state action,” but otherwise does not dispute it. UNM’s Reply ¶¶ 34-38,
at 13. Accordingly, the Court deems this fact undisputed, because materiality does not
specifically controvert the fact. See supra note 10.
65

In response, UNM states that this fact is immaterial, but otherwise does not dispute it.
See UNM’s Reply ¶¶ 34-38, at 13. Accordingly, the Court deems this fact undisputed, because
materiality does not specifically controvert the fact. See supra note 10.
66

Dr. Rivero disputes this fact “to the extent that the e-mail identifies the ‘harsh’
provisions in the Addendum.” Rivero’s Response ¶ 42, at 7. This response does not specifically
controvert this fact, so the Court deems it undisputed. See D.N.M.LR-Civ. 56.1(b).

- 42 -

22; id. at 250:18-254:13).67 “Records custodian Virginia Kelley had begun to take Dr. Rivero to
a room to review his file when, in an urgent and unexpected interruption, Dr. Bailey called from
his clinical rounds to stop Ms. Kelley from allowing Dr. Rivero to access his own file.” Rivero’s
Response ¶ 37, at 17 (asserting this fact)(citing Rivero Depo. 191 at 251:14-252:10).68
Dr. Rivero calmly discussed this issue, and to preserve the file’s contents while
resolving permission to access it, Dr. Bailey and he reached a compromise in
which copies of the alleged contents of the file were made by Ms. Kelley and
placed in a manila envelope and sealed for safe keeping.
Rivero’s Response ¶ 37, at 17 (asserting this fact)(citing Rivero Depo. 191 at 252:17-253:17;
Board of Regents of the University of New Mexico’s Second Supplemental Responses and
Objections to Plaintiff Dennis Rivero’s Second Set of Requests for Production of Documents,
and Second Requests for Admission at 1-2 (undated), filed March 8, 2018 (Doc. 191-27)).69

67

The Court has removed the language “having set an appointment” from its adoption of
Dr. Rivero’s fact, Rivero’s Response ¶ 36, at 17, because Rivero’s deposition testimony does not
support this alleged fact, see Rivero Depo. 191 at 251:7-13 (Dr. Rivero discussing how he called
and asked whether he needed an appointment to view his file, and the person on the telephone
said “No,” with no mention whether Dr. Rivero made an appointment or went without one).
UNM states that this fact is immaterial, but does not otherwise dispute it. See UNM’s Reply
¶¶ 34-38, at 17. Thus, with no part of the record specially controverting the fact, the Court
deems it undisputed. See D.N.M.LR-Civ. 56.1(b).
68

UNM states that this fact is immaterial and concerns “procedural history at issue in a
prior pending state action,” but otherwise does not dispute it. UNM’s Reply ¶¶ 34-38, at 17. As
discussed supra note 10, however, materiality is an argument that the Court addresses in the
Analysis and does not specifically controvert this fact, so the Court deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b).
69

UNM states that this fact is immaterial and concerns “procedural history at issue in a
prior pending state action,” but otherwise does not dispute it. UNM’s Reply ¶¶ 34-38, at 17. As
discussed supra note 10, however, materiality is an argument that the Court addresses in the

- 43 -

“Immediately thereafter Dr. Bailey informed Dr. Schenck of Dr. Rivero’s visit to the office of
clinical affairs, asking, ‘Do we really want to do this?’ in reference to Dr. Rivero’s potential
increase in FTE.”

Rivero’s Response ¶ 38, at 17 (asserting this fact)(citing Email from

Dr. Robert Bailey to Scot Sauder and Dr. Robert Schenck, Jr. at 3 (dated March 24, 2011), filed
March 8, 2018 (Doc. 191-5)(“Bailey Hesitation Email”); Schenck Depo. 191 at 142:7-144:7).70
“Dr. Schenck . . . admitt[ed] that there was nothing wrong with Dr. Rivero seeking to review his
file.”71 Rivero’s Response ¶ 39, at 17 (asserting this fact)(citing Schenck Depo. 191 at 145:9146:11). See UNM’s Reply ¶ 39, at 17 (not disputing this fact).

Analysis and does not specifically controvert this fact, so the Court deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b).
70

UNM states that this fact is immaterial and concerns “procedural history at issue in a
prior pending state action,” but otherwise does not dispute it. UNM’s Reply ¶¶ 34-38, at 17. As
discussed supra note 10, however, materiality is an argument that the Court addresses in the
Analysis and does not specifically controvert this fact, so the Court deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b). Finally, admissible evidence establishes this fact, because,
although the email is inadmissible hearsay, Dr. Schenck testified at his deposition that Dr. Bailey
asked him this question. See Schenck Depo. 191 at 143:11-17.
71

The Court does not adopt the entirety of this proffered fact. As Dr. Rivero offered it,
this sentence read: “Dr. Schenck withdrew the Addendum despite admitting that there was
nothing wrong with Dr. Rivero seeking to review his file.” Rivero’s Response ¶ 39, at 17 (citing
Schenck Depo. 191 at 145:9-146:11). UNM denied this “to the extent that it implies that Dr.
Scehnck [sic] withdrew the Addendum because plaintiff sought to review his file.” UNM’s
Reply ¶ 39, at 13. As Dr. Rivero provided the fact, it implies that Dr. Schenck withdrew the
Addendum, because Dr. Rivero sought to review his credentialing file, which Dr. Schenck’s
deposition testimony does not support. See Schenck Depo. 191 at 145:9-146:11. The Court thus
adopts the fact as provided. Further, the Court does not adopt the second sentence of Dr.
Rivero’s proffered fact, which states: “Dr. Schenck also stated that he would have been forced to
terminate Dr. Rivero, despite the fact that there was nothing wrong with him seeking to access
the file and that he had not inquired any further than the statement by Dr. Bailey.” Rivero’s

- 44 -

Then, on April 4, 2011, in response to Dr. Schenck’s suggestion that Dr. Rivero accept
that he has been unprofessional, Dr. Rivero responded: “I am sorry you feel that way.” Email
from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 33 (dated April 4, 2011), filed December 8,
2017 (Doc. 143-1)(“Professionalism Email”)). See UNM’s MSJ ¶ 43, at 10 (asserting this
fact)(citing Professionalism Email); Email from Dr. Robert Schenck, Jr. to Dr. Dennis Rivero at
33 (dated April 4, 2011), filed December 8, 2017 (Doc. 143-1)).72 “The next day, Dr. Schenck
withdrew the [A]ddendum.” UNM’s MSJ ¶ 44, at 10 (asserting this fact)(citing FAC ¶ 40, at 8).
See Rivero’s Response ¶ 44, at 10 (admitting this fact);73 Rivero’s MSJ ¶ 18, at 5 (asserting this

Response ¶ 39, at 17 (citing Schenck Depo. 191 at 146:21-147:7). This sentence lacks support in
the record. The portion of the Schenck Depo. to which Dr. Rivero cites discusses that Dr.
Schenck did not inquire more into Dr. Rivero’s attempt to see his credentialing file, but there is
nothing that says Dr. Schenck would have been forced to terminate Dr. Rivero. Although Dr.
Schenck stated that, had Dr. Rivero signed the Addendum when he was denied access to his
credentialing file, “[t]here would have been reason for him to be let go.” Schenck Depo. 191 at
143:25-144:1. This fact, however, is not the same as Dr. Schenck being forced to fire Dr.
Rivero. Accordingly, the Court does not adopt this portion of the fact.
72

Dr. Rivero disputes UNM’s proffered fact “as mere argumentation and conjecture not
supported by the content of the exhibit cited.” Rivero’s Response ¶ 43, at 7. The Court has
removed UNM’s inferences from the fact and quoted from the Professionalism Email to address
this issue. The Professionalism Email is not hearsay, because it is a statement that UNM
“offer[s] against an opposing party” that “was made by the party in an individual . . . capacity.”
Fed. R. Evid. 801. The email that Dr. Schenck sent to which Dr. Rivero was responding in the
Professionalism Email is hearsay when offered by UNM, but UNM does not offer it to prove the
truth of the statements therein, but to show notice to Dr. Rivero and, thus, his response. As
Dr. Rivero points to no portion of the record controverting that he sent the Professionalism Email
and does not dispute its contents, the Court deems this fact undisputed.
73

Dr. Rivero avers that “Dr. Schenck withdrew the Addendum because Dr. Rivero sought
to access his credentialing file to find justification for the implication of a psychiatric disorder
from the Addendum.” Rivero’s Response ¶ 44, at 10 (citing Dr. Rivero’s additional undisputed

- 45 -

fact)(citing Schenck Depo. 144 at 142:7-144:7; Email from Dr. Robert Schenck, Jr. to Dr.
Dennis Rivero, Ira Bolnick, John Trotter, PhD, Mary Jacintha, and Dr. Paul Echols at 1 (dated
April 5, 2011), filed December 8, 2017 (Doc. 144-4)(“Withdrawal Email”)).74
5.

Dr. Rivero’s Resignation.

“In the subsequent months,” Dr. Rivero continued to try to access his credentialing file,
but was unable to get it. Rivero’s Response ¶ 40, at 18 (asserting this fact)(citing Bailey
Hesitation Email at 3; Email from Dr. Robert Bailey to Scot Sauder and Dr. Robert Schenck, Jr.
at 4 (dated April 4, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Dennis Rivero to
Dr. Robert Bailey at 4-5 (dated April 3, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr.

material facts ¶¶ 36-39, at 17-18). The Court adopts Dr. Rivero’s additional facts 36-39, as
provided supra. The Court will not adopt as fact or otherwise infer that Dr. Schenck withdrew
the Addendum because Dr. Rivero requested access to his credentialing file. Dr. Schenck
testified that he withdrew it for two reasons: (i) an interaction that Dr. Bailey had with Dr.
Rivero following the credentialing file incident -- leading to Dr. Bailey’s asking, again, “Do we
really want to bring him back?” Schenck Depo. 191 at 145:17; and (ii) Dr. Schenck’s belief that,
if Dr. Rivero signed the Addendum, UNM would “get this problem flaring up again, [and] he
would lose his job,” Schenck Depo. 191 at 145:21-22. See Schenck Depo. 191 at 145:9-25.
74

The Withdrawal Email is the only evidence in the record before the Court establishing
when Dr. Schenck withdrew the Addendum, as he does not discuss the date in the excerpts of his
deposition provided. The Withdrawal Email is not hearsay, because it qualifies as an admission
by a party opponent. See Fed. R. Evid. 801(d)(2). In the Tenth Circuit, “an employee’s
statements are not attributable to his employer as a party-opponent admission in an employment
dispute unless the employee was ‘involved in the decisionmaking process affecting the
employment action’ at issue.” Johnson v. Weld Cty., 594 F.3d 1202, 1209 (10th Cir.
2010)(quoting Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005)(per
curiam)). Dr. Schenck was clearly involved in withdrawing the Addendum, see Schenck Depo.
144 at 142:7-144:7, so his statements constitute a party-opponent admission and the Withdrawal
Email is therefore not hearsay, see Johnson v. Weld Cty., 594 F.3d at 1209.

- 46 -

Robert Bailey to Dr. Dennis Rivero at 5 (dated March 24, 2011), filed March 8, 2018 (Doc. 1915); Email from Dr. Robert Bailey to Elizabeth Camp, Scot Sauder, and Alison Webster at 6
(dated April 11, 2011), filed March 8, 2018 (Doc. 191-5); Email from Dr. Robert Bailey to Scot
Sauder and Dr. Robert Schenck, Jr. at 7 (dated April 15, 2011), filed March 8, 2018 (Doc. 1915); Email from Dr. Dennis Rivero to Alison Webster at 10 (dated April 15, 2011), filed March 8,
2018 (Doc. 191-5)).75 “As a result, Dr. Rivero . . .file[d] a Verified Petition for Alternative Writ
of Mandamus with the State District Court to obtain access” to the credentialing file. Rivero’s
Response ¶ 41, at 18 (asserting this fact)(citing Rivero v. Board of Regents of the Univ. of N.M.,
D-202-CV-2011-08104, Verified Petition for Alternative Writ of Mandamus at 1, filed in state
court on August 11, 2011, filed in federal court on December 8, 2017 (Doc. 144-6)).76 Also,

75

UNM states that this fact is immaterial as it “concern[s] the procedural history
regarding Plaintiff’s attempts to obtain his file,” but otherwise does not dispute it. UNM’s Reply
¶¶ 40-42, at 13. Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ.
56.1(b). The Court does not adopt this fact as Dr. Rivero provides in full, however, because it
lacks support in the record. Dr. Rivero’s full fact 40 reads: “In the subsequent months, Dr.
Bailey and University counsel offered access to the files, and then withdrew such offers.
Ultimately, UNMSHC stonewalled Dr. Rivero, refusing to respond to written inquiries for
access.” Rivero’s Response ¶ 40, at 18. The emails to which he cites, however, do not support
that UNM withdrew access to Dr. Rivero’s files, stonewalled him, or did not respond to his
inquiries. The emails show Dr. Bailey responding to Dr. Rivero’s requests and telling him how
to view his file. Further, these emails are hearsay, and Dr. Rivero has not established that they
are admissible. See supra note 16. Thus, they are admissible to prove that UNM had notice of
Dr. Rivero’s desire to view his credentialing file, but not for the truth of the statements which
they contain.
76

UNM states that this fact is immaterial as it “concern[s] the procedural history
regarding Plaintiff’s attempts to obtain his file,” but otherwise does not dispute it. UNM’s Reply
¶¶ 40-42, at 13. Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ.
56.1(b).

- 47 -

“[o]n January 20, 2012, Plaintiff filed an administrative complaint with the [Equal Employment
Opportunity Commission (‘EEOC’)], claiming that the psychological evaluation requirement
was not job related and consistent with business necessity.” UNM’s MSJ ¶ 45, at 10 (asserting
this fact)(citing EEOC Charge of Discrimination Charge No. 543-2012-00600 at 1 (dated
January 20, 2012), filed December 8, 2017 (Doc. 143-8)). See Rivero’s Response ¶ 45, at 7
(admitting this fact). During this time, Dr. Rivero “continued to maintain his University Hospital
privileges[,] renewed[] with statements from UNM noting that plaintiff was not disabled and that
he did not require accommodation.” UNM’s MSJ ¶ 47, at 10 (asserting this fact)(citing Letter
from Dr. Robert Schenck, Jr. to Dr. Robert Bailey at 1 (dated May 2, 2012), filed December 8,
2017 (Doc. 143-9)). See Rivero’s Response ¶ 47, at 7-8 (admitting this fact).77 In 2013, “[a]fter
two years of litigation, and three evidentiary hearings, the State District Court found that UNM
had unlawfully withheld documents from Dr. Rivero and ordered production of all documents
relating to Dr. Rivero.” Rivero’s Response ¶ 42, at 18 (asserting this fact)(citing Rivero v. Board
of Regents of the Univ. of N.M., D-202-CV-2011-08104, Order on Petition for Writ of
Mandamus ¶ 5, at 5, filed in state court on August 12, 2013, filed in federal court on December

77

As UNM offers this fact, it begins with the statement “[a]fter Plaintiff failed to sign the
[A]ddendum,” UNM’s MSJ ¶ 47, at 10, which Dr. Rivero disputes as a characterization, noting
that UNM withdrew the Addendum, see Rivero Response ¶ 47, at 7-8. Although it is clear from
the record that Dr. Rivero did not sign the Addendum, the Court cannot say that he “failed to
sign it,” because it was withdrawn before the deadline. UNM’s Reply ¶ 47, at 9.

- 48 -

8, 2017 (Doc. 144-7)(“Order on Petition”)).78 “Upon production of such documents, and filing
of affidavits by Dr. Bailey and Dr. John Trotter,” Dr. Rivero realized that the only document
which mentions that he may need a psychiatric evaluation is the Addendum, and Dr. Rivero felt
that the disclosed documents did not reveal a reason for UNM’s psychiatric evaluation
requirement. Rivero’s Response ¶ 43, at 18 (asserting this fact)(citing Rivero Depo. 191 at
250:3-10; Affidavit of John Trotter, PhD for Respondent Board of Regents of the University of
New Mexico d/b/a The University of New Mexico Health Sciences Center (executed January 15,
2014), filed December 8, 2017 (Doc. 144-8)(“Trotter Aff.”); Affidavit of Respondent Robert A.
Bailey, M.D. (executed January 24, 2014), filed December 8, 2017 (Doc. 144-9)(“Bailey
Aff.”)).79 See UNM’s Reply ¶ 43, at 13 (not disputing this fact).

78

UNM states that this fact is immaterial as it “concern[s] the procedural history
regarding Plaintiff’s attempts to obtain his file,” but otherwise does not dispute it. UNM’s Reply
¶¶ 40-42, at 13. Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ.
56.1(b).
79

The Court will not find as fact that UNM provided Dr. Rivero “no evidence of a reason
for requiring a psychiatric evaluation,” Rivero’s Response ¶ 43, at 18, because Dr. Rivero has
not “refer[red] with particularity to those portions of the record” that supports this fact,
D.N.M.LR-Civ. 56.1(b). Dr. Rivero’s testimony states that UNM did not suggest that he had a
mental disorder and that the Addendum is the only document that implies he does. See Rivero
Depo. 191 at 250:3-10. The two affidavits which he cites state that UNM produced all
documents pertaining to Dr. Rivero. See Trotter Aff. at 1; Bailey Aff. at 1. If Dr. Rivero
received “all documents relating to Dr. Rivero” for which he asked, Rivero’s Response ¶ 42, at
18, then, necessarily, the evidence on which UNM relied in deciding to request a psychiatric
evaluation must have been disclosed. UNM does not help clear up what documents Dr. Rivero
received, for in its Reply, it states that this fact “actually supports UNM’s position[, because t]he
fact that there was no document that indicated that Plaintiff needed a psychiatric evaluation
indicates that UNM did not consider Plaintiff to be disabled,” and that “an employer can require
a psychiatric fitness for duty evaluation to address professionalism concerns without regarding

- 49 -

“Plaintiff continued to work at 0.05 FTE until May 21, 2014, when he . . . resigned.”
UNM’s MSJ ¶ 46, at 10 (asserting this fact)(citing Rivero Depo. 143 at 268:20-22; id. at 272:511).80 Dr. Rivero felt that “[n]othing justified the onerous and draconian [A]ddendum,” and that
Dr. Schenck betrayed his trust, “defamed him publicly throughout the mandamus case,” and
“turned on him so suddenly when he sought his credentialing file.” Rivero’s Response ¶ 44, at 18
(asserting this fact)(citing Rivero Depo. 191 at 271:1-274:4; id. at 274:10-275:4).81 See UNM’s
MSJ ¶ 48, at 10 (citing Memorandum from Dr. Dennis Rivero to Dr. Robert Schenck, Jr. at 1-2
(dated May 21, 2014), filed December 8, 2017 (Doc. 143-10)(“Resignation Letter”))(stating that

the employee as disabled.” UNM’s Reply ¶ 43, at 13. Thus, the Court can find only that
Dr. Rivero felt there was no evidence of a reason for the request, as this is what the record
supports.
80

Dr. Rivero disputes this fact “to the extent it mischaracterizes Dr. Rivero’s constructive
discharge as a voluntary resignation.” Rivero’s Response ¶ 46, at 7. As Dr. Rivero alleges that
he was constructively discharged, whether his discharge was “voluntary” is a determination that
the Court makes in the Analysis, and thus the Court removes the term voluntary from its
adoption of UNM’s fact. As a constructive discharge necessarily involves a resignation, see
infra Analysis Section I.C., the Court deems this fact as adopted, without the term “voluntary,”
undisputed.
81

The Court has altered Dr. Rivero’s proffered fact so that the record supports it. The
Court also removes the last sentence, because it is not a fact but a legal conclusion: “Therefore,
the workplace having become intolerable, no reasonable person could have remained, and
Dr. Rivero was constructively discharged.” Rivero’s Response ¶ 44, at 18. Whether Dr. Rivero
was constructively discharged is a conclusion that the Court must determine in the Analysis,
based on the facts. UNM disputes this fact as immaterial, but the Court deals with materiality in
the Analysis. The Court therefore deems Dr. Rivero’s subjective belief of his working
conditions undisputed.

- 50 -

Dr. Rivero “accused Dr. Schenck of betrayal and other personal slights”). 82 Dr. Rivero’s
Resignation Letter does not mention any harassment that “he had allegedly been subjected to”;
along with describing how he felt betrayed, defamed, and turned on by Dr. Schenck, he asserts
how “the affidavits submitted in a separate legal action Plaintiff brought against Defendant the
prior January certifying production of all documents constituted ‘confirmation’ of the alleged
impropriety of the psychological evaluation requirement.” UNM’s MSJ ¶ 50, at 11 (asserting
this fact)(citing Resignation Letter). 83 With the exception of withholding documents from
Dr. Rivero, “[n]o UNM employee or official treated Plaintiff inappropriately prior to his
resignation, and he was permitted to continue performing surgeries one day a month.” UNM’s
MSJ ¶ 49, at 11 (asserting this fact)(citing Rivero Depo. 143 at 268:20-269:7).84

82

The Court does not adopt this proffered fact in full, which states: “In his resignation
letter, Plaintiff did not seek to resolve his dispute with the Department Chairman. Instead, he
accused Dr. Schenck of betrayal and other personal slights against him.” UNM’s MSJ ¶ 48, at
10 (citing Resignation Letter). There is no indication in the record that Dr. Rivero had a dispute
with Dr. Schenck, and the Court concludes that it is better to phrase Dr. Rivero’s accusations as
his subjective belief and not characterize what he said.
83

Dr. Rivero “objects to the mischaracterization of the resignation letter.” Rivero’s
Response ¶ 50, at 8. UNM’s original fact states that Dr. Rivero’s “letter merely focused on his
assertion” regarding the affidavits, UNM’s MSJ ¶ 50, at 11, but as Dr. Rivero notes, there are
other assertions in the Letter. Accordingly, the Court has revised the proffered fact to account
for the other assertions Dr. Rivero makes in the Resignation Letter and, concluding that this fact
is no longer a mischaracterization, deems the fact undisputed.
84

Dr. Rivero disputes this fact, stating:

While Dr. Rivero continued to conduct surgery one day per month, he was
requested to do so by Dr. Schenck. Furthermore, the cumulative conduct of
UNM, including the forcing of litigation to obtain documents wrongfully withheld

- 51 -

“On April 19, 2016, Plaintiff brought his original Complaint in the instant case.” UNM’s
MSJ ¶ 51, at 11 (asserting this fact)(citing Complaint to Recover Damages for Violations of the
Americans with Disabilities Act, filed April 19, 2016 (Doc. 1)(“Complaint”)). See Rivero’s
Response ¶ 51, at 8 (admitting this fact).
PROCEDURAL BACKGROUND
Dr. Rivero received notices of the right to sue from the EEOC on January 29, 2016, and
April 14, 2016. See Complaint ¶¶ 7-8, at 2. Dr. Rivero then filed his Complaint on April 19,
2016, in the United States District Court for the District of New Mexico, invoking federalquestion jurisdiction under 28 U.S.C. § 1331 by alleging two causes of action against UNM for
violations of the American with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”). See
Complaint ¶ 5, at 2.85 With leave of Magistrate Judge Lynch,86 Dr. Rivero filed his FAC, this

and the public and private defamatory statements as to his character and
competence, constitute inappropriate treatment.
Rivero’s Response ¶ 49, at 8 (citing Dr. Rivero’s additional undisputed material facts ¶¶ 38-44,
at 17-18). The proffered facts to which Dr. Rivero cites do not establish that Dr. Schenck
requested that he continue to work one day per month or that UNM defamed his character.
Although the state court lawsuit found that UNM inappropriately withheld Dr. Rivero’s
documents from him, this finding does not dispute the fact that Dr. Rivero states “[n]obody did
anything inappropriate towards me.” Rivero Depo. 143 at 269:6-7. The Court thus concludes
that, as modified to account for the document-withholding, this fact is undisputed.
85

First, Dr. Rivero asserts that UNM’s requirement that Dr. Rivero undergo medical
examinations, which are neither job-related nor a business necessity, in exchange for UNM’s
approving an increase in his hours, violated the ADA, 42 U.S.C. § 12112(d)(4). See Complaint
¶¶ 49-51, at 9. Second, Dr. Rivero alleges that UNM constructively discharged him by acting as
though he had a disability -- “an unspecified mental impairment, that he in fact did not have” -despite having “no documents to substantiate its perception of a mental impairment” and no

- 52 -

time alleging that UNM violated the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701794a and 790 et seq. (“Rehabilitation Act”). See FAC ¶ 1, at 1. The FAC brings only one claim
against UNM: Dr. Rivero asserts that UNM violated the Rehabilitation Act, 29 U.S.C. § 794(a),
by rendering his working conditions intolerable and constructively discharging him, because
UNM required Dr. Rivero to submit to medical examinations before authorizing an increase in
his hours as a result of its belief that he had some mental impairment -- despite there allegedly
not being any business purpose for the medical examinations and no documentation showing that
Dr. Rivero suffered from any mental impairment. See FAC ¶¶ 46-56, at 9-11.
1.

The MTD Order.

On December 22, 2016, Magistrate Judge Lynch denied the Defendant University of New
Mexico Board of Regents’ Motion to Dismiss Plaintiff’s First Amended Complaint to Recover
Damages for Violation of the Rehabilitation Act of 1973, filed October 7, 2016

legitimate reason for denying Dr. Rivero’s request for an increase in hours when he objected to
the medical examinations, which actions rendered Dr. Rivero’s working conditions “irreparably
intolerable.” Complaint ¶¶ 54-61, at 10-11.
86

In the District of New Mexico, all civil cases are randomly assigned to two Magistrate
Judges to handle pursuant to 28 U.S.C. § 636, which allows a Magistrate Judge to “conduct any
or all proceedings in a jury or nonjury civil matter” upon the parties’ consent under rule 73 of the
Federal Rules of Civil Procedure. 28 U.S.C. § 636. See Fed. R. Civ. P. 73. Magistrate Judge
Lynch and the Honorable Steven C. Yarbrough, United States Magistrate Judge for the District
of New Mexico, were initially assigned to this case, with Magistrate Judge Lynch randomly
assigned to conduct the dispositive proceedings. See Notice of Assignment, filed April 20, 2016
(Doc. 2). Both Dr. Rivero and UNM provided consent to proceed before a Magistrate Judge, so
Magistrate Judge Lynch initially handled the dispositive matters in this case until his retirement,
discussed infra note 87. See Notice of Rule 73 Consent Received by All Parties, filed June 7,
2016 (Doc. 14).

- 53 -

(Doc. 33)(“MTD”). Magistrate Judge Lynch notes that, “[t]hough inartfully pled, Dr. Rivero
brings two separate claims within ‘Count One’:” (i) UNM’s attempt “to require psychiatric
testing without a legitimate purpose; and” (ii) constructive discharge. MTD Order at 6. UNM
brought its MTD under rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting “that both
parts of Dr. Rivero’s claim are barred by the applicable statute of limitations.” MTD Order at 6.
See MTD at 1, 5.
Magistrate Judge Lynch observes that “[t]he Rehabilitation Act does not identify a statute
of limitations. In the Tenth Circuit, Rehabilitation Act claims are treated similarly to claims
under 42 U.S.C. § 1983, and the state personal injury statute of limitations is read-in to the
statute.” MTD Order at 6 (citing Levy v. Kan. Dep’t of Social & Rehab. Servs., 789 F.3d 1164,
1172-74 (10th Cir. 2005); McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011)).
Magistrate Judge Lynch determined that, as to the psychiatric testing claim, both parties’
assertions when the claim accrued are wrong. See MTD Order at 7. Magistrate Judge Lynch
writes:
Here, UNM did require Dr. Rivero to undergo medical testing -- psychiatric
testing, to be precise -- as a condition of increased employment. Additionally, Dr.
Rivero did not find out that UNM had no business necessity for these
requirements until affidavits were filed by Drs. Trotter and Baily in the state case
which averred that all of the documents had been produced, and Dr. Rivero was
able to determine that UNM had no evidence or documentary support to
substantiate its requirement of psychiatric testing. The affidavits were filed,
respectively, on January 15 and January 24, 2014. Given that a plaintiff must
prove that his employer had no business necessity for the required medical
testing, Dr. Rivero’s claim under § 794 for the psychiatric testing was not
complete and cognizable until January 2014. Given that the Rehabilitation Act
prohibits an employer from requiring medical testing only when the employer

- 54 -

lacks a business necessity for that testing, 42 U.S.C. § 12112(d)(4), the lack of
business necessity is an element of the claim. Dr. Rivero only had access to
information sufficient to establish this element beginning in January 2014. The
statute of limitations has not run.
MTD Order at 8 (citations omitted)(citing FAC at 10-11). As to the constructive discharge
claim, Magistrate Judge Lynch notes that “the employee’s resignation based on the
discriminatory conduct by the employer is an essential -- indeed, the defining -- element of the
constructive discharge.” MTD Order at 9 (citing Green v. Brennan, 136 S. Ct. 1769, 1777
(2016)). Accordingly, Magistrate Judge Lynch concludes that, for the constructive discharge
claim, “[t]he statute of limitations did not begin running until Dr. Rivero in fact terminated his
employment in May 2014.” MTD Order at 9. Magistrate Judge Lynch thus denies UNM’s
MTD. See MTD Order at 9.87
2.

UNM’s MSJ.

UNM first moved for summary judgment on December 5, 2017.

See Defendant

University of New Mexico Board of Regents’ Motion and Memorandum for Summary Judgment
at 1. It quickly filed an amended motion on December 8, 2017, to add a disclosure pursuant to
D.N.M.LR-Civ. 7.1. See UNM’s MSJ at 1 n.1. In UNM’s MSJ, UNM notes that, while

87

Magistrate Judge Lynch retired from the judiciary in the fall of 2017 and, with
Magistrate Judge Lynch’s retirement, the case was randomly reassigned to the Honorable Jerry
H. Ritter, United States Magistrate Judge for the District of New Mexico, to conduct the
dispositive proceedings. See Reassignment Notice, filed September 5, 2017 (Doc. 115). The
parties did not provide consent this time, so the case was reassigned to Judge Browning as the
trial judge on October 3, 2017. See Reassignment Notice, filed October 3, 2017 (Doc. 123).

- 55 -

Dr. Rivero asserts only one claim in the FAC, he actually alleges two claims: (i) improper
medical inquiry; and (ii) constructive discharge. See UNM’s MSJ at 12.
UNM first argues that it is entitled to summary judgment regarding the medical
examination, because “the claim is barred by the statute of limitations.” UNM’s MSJ at 12.
UNM notes that, unlike for a claim under the ADA, pursuing a Rehabilitation Act claim against a
university does not require filing an administrative claim with the EEOC before bringing suit
and, thus, the statute of limitation “begins to run when the cause of action accrues.” UNM’s
MSJ at 13. UNM notes that caselaw in the United States Court of Appeals for the Tenth Circuit
establishes that Rehabilitation Act claims are analogous to those under 42 U.S.C. § 1983,
providing for a three-year limitations period. See UNM’s MSJ at 13. According to UNM,
Dr. Rivero, therefore, “cannot prevail on any claim on any act that accrued prior to April 19,
2013,” three years before his Complaint’s filing. UNM’s MSJ at 13. UNM asserts that a
Rehabilitation Act claim “accrues when the plaintiff knows or has reason to know of the injury
which is the basis of the action” -- so, according to UNM, Dr. Rivero’s claim accrued in January,
2011, when he received the Addendum requiring psychiatric evaluations as a condition to return
to full-time employment. UNM’s MSJ at 14 (quoting Baker v. Bd. of Regents of the State of
Kan., 991 F.2d 628, 632 (10th Cir. 1993)). UNM argues that, while this argument conflicts with
Magistrate Judge Lynch’s holding that Dr. Rivero’s cause of action accrued in 2014, see MTD
Order at 8, the undisputed facts make it clear that Dr. Rivero found out about the injury -- which
is all that is needed for a “complete and present cause of action” in a civil rights claim -- no later

- 56 -

than January 20, 2012, because he was aware of the medical examination requirement by then,
UNM’s MSJ at 15 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). UNM asserts that Dr.
Rivero did not have to determine that the examination requirement was illegal for the cause of
action to accrue; that accrual occurred when he knew of the requirement. See UNM’s MSJ at
15-16. Further, UNM argues that, even if the cause of action did not accrue until Dr. Rivero
determined that the examination was improper, the claim is still time-barred, because he filed a
complaint with the EEOC on January 20, 2012, stating “that he was required to submit to a
psychological evaluation, and that this evaluation was not job related or consistent with business
necessity.” UNM’s MSJ at 16.
UNM also asserts that the psychiatric evaluation requirement “was job related and
consistent with business necessity.” UNM’s MSJ at 16. It states that employers may require a
“fitness for duty examination” when they have legitimate, non-discriminatory evidence that
would cause a reasonable person to doubt the employee’s capacity to perform his or her job.
UNM’s MSJ at 17 (citing Adair v. City of Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016)).
UNM asserts that courts have found psychological examinations “appropriate if the employee
has demonstrated a deterioration in his or her ability to conduct himself in a professional
manner.” UNM’s MSJ at 17. After discussing a number of cases, UNM comes to the conclusion
that “there is substantial precedent for psychological evaluations in cases where employees have
demonstrated a possibility that their lack of professionalism was interfering with their work, even
where incidents demonstrating this lack of professionalism were few.” UNM’s MSJ at 18 (citing

- 57 -

Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 2003); Conrad v. Bd. of Johnson
Cty. Comm’rs, 237 F. Supp. 2d 1204 (D. Kan. 2002)(Maxse, M.J.); Owusu-Ansah v. Coca-Cola
Co., 715 F.3d 1306 (11th Cir. 2013); Mickens v. Polk Cty. Sch. Bd., 430 F. Supp. 2d 1265 (M.D.
Fla. 2006)(Merryday, J.); Fritsch v. City of Chula Vista, No. 98-0972-E-CGA, 2000 WL
1740914 (S.D. Cal. Feb. 22, 2000)(Enright, J.)). UNM contends that this precedent provides
support for its conclusion that Dr. Rivero’s “lack of professionalism, rudeness, over-reaction, and
anger” justified a psychological examination. UNM’s MSJ at 19. UNM asserts that Dr. Rivero’s
conduct means that the examination was “job related and consistent with business necessity,”
warranting summary judgment for UNM on Dr. Rivero’s claim of a Rehabilitation Act violation.
UNM’s MSJ at 20.
Finally, as to the constructive discharge claim, UNM asserts that the Rehabilitation Act
imposes the same standards as the ADA for claims of discriminatory termination, under which
constructive discharge falls. See UNM’s MSJ at 20. UNM thus maintains that making a prima
facie case under the Rehabilitation Act requires Dr. Rivero to establish that: (i) he “is a disabled
person within the meaning of the ADA”; (ii) he “is able to perform the essential functions of the
job, with or without reasonable accommodation”; and (iii) “the employer terminated [the]
employment under circumstances which give rise to an inference that the termination was based
on [his] disability.” UNM’s MSJ at 21 (first alteration in UNM’s MSJ)(quoting Morgan v. Hill,
108 F.3d 1319, 1323 (10th Cir. 1997)). UNM asserts that Dr. Rivero cannot meet this test,
because he is not a disabled person under the ADA, and because it did not terminate him --

- 58 -

noting that it is thus unnecessary to determine whether he “was able to perform the essential
functions of his job.” UNM’s MSJ at 21. UNM notes that Dr. Rivero
does not claim that he has a physical or mental impairment, or that he has a record
of such impairment . . . . [The] sole basis for his claim that UNM regarded him as
disabled is the fact that UNM required him to undergo a psychological evaluation
as a condition of increased hours and because of his professionalism issues.
UNM’s MSJ at 21. This psychiatric evaluation requirement, UNM asserts, is not enough to meet
the ADA definition of disability,88 because the caselaw establishes “that a requirement that an
employee undergo a psychological evaluation does not equal a perception of impairment.”
UNM’s MSJ at 22 (citing cases). UNM maintains that the undisputed facts do not indicate that it
regards Dr. Rivero as impaired and, thus, he does not meet the ADA definition of “disabled.”
UNM’s MSJ at 23.

Further, UNM avows that “the plain facts are that Plaintiff was not

discharged.” UNM’s MSJ at 23. UNM also notes that “a finding of constructive discharge may
not be based solely on a discriminatory act.” UNM’s MSJ at 23 (emphasis in UNM’s
MSJ)(quoting Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001), overruled on other
grounds as recognized by Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003)).
UNM asserts that, because Dr. Rivero’s constructive discharge claim is based only on the
psychiatric evaluation requirement, and because he offers no evidence that this requirement
caused his working conditions to deteriorate, there are no grounds for a constructive discharge
claim. See UNM’s MSJ at 24-25. Finally, UNM argues that Dr. Rivero waited an unreasonable
88

The ADA defines “disability” as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

- 59 -

amount of time to resign -- three years after receipt of the Addendum, and five months after
receipt of affidavits showing that UNM disclosed his entire personnel file -- and, thus, foreclosed
his claim of constructive discharge. See UNM’s MSJ at 25.
3.

Rivero’s Response.

Dr. Rivero filed his consolidated response to UNM’s MSJ on March 8, 2018. See
Rivero’s Response at 1. First, he argues that UNM does not have the needed objective evidence
to justify the psychiatric examination requirement. See Rivero’s Response at 20. He notes that
UNM’s definition of professionalism contains criteria which “are by varying degrees subjective,”
thus precluding the “objective basis” needed to require a medical examination.
Response at 21.

Rivero’s

Dr. Rivero also cites to record evidence, allegedly contradicting UNM’s

assertion that he lacked professionalism, to conclude that there are genuine issues of material fact
as to whether the psychiatric examination requirement was job-related and consistent with
business necessity, thus arguing that summary judgment is improper. See Rivero’s Response at
22-24.
Second, Dr. Rivero argues that there is “a genuine issue of material fact as to the nature
and scope of the psychiatric examination,” again precluding summary judgment on whether the
examination was job-related and consistent with business necessity. Rivero’s Response at 25.
He asserts that the Addendum contains no language limiting the psychiatric examination’s scope
and would have granted UNM “unfettered access to Dr. Rivero’s psychiatric records, irrespective
of content,” making it so invasive that UNM must have “regarded Dr. Rivero as disabled.”

- 60 -

Rivero’s Response at 24. Further, Dr. Rivero argues that these records “would be placed in
Dr. Rivero’s medical staff file, allowing any future parties who may seek to credential Dr. Rivero
(including other hospitals) to review the records of psychiatric evaluations.” Rivero’s Response
at 25. Dr. Rivero maintains that he would also “be forced to waive all rights to appeal internally
or to legal recourse.” Rivero’s Response at 25.

Dr. Rivero asserts that the Addendum’s

psychiatric evaluation requirement also does not match the agreement that Dr. Rivero and
Dr. Schenck reached in December, 2010, for Dr. Rivero to participate in counseling to return to
full-time status. See Rivero’s Response at 25. Finally, Dr. Rivero distinguishes all the cases that
UNM cites for the proposition that unprofessional behavior provides grounds for a psychiatric
evaluation, noting that the conduct in those cases was much more egregious than his own. See
Rivero’s Response at 26-27. He asserts that there is no question that he “would be unable to
perform essential job functions,” so UNM must show that he suffered some medical condition
“present[ing] a direct threat” to be justified in its psychiatric evaluation requirement. Rivero’s
Response at 28.
Dr. Rivero also argues that he makes a prima facie case of constructive discharge. See
Rivero’s Response at 28. Dr. Rivero posits that, if the psychiatric examination was not jobrelated and consistent with business necessity, then it “is per se discriminatory under the
Rehabilitation Act.” Rivero’s Response at 29. While recognizing that some cases do not
“automatically imply a ‘regarded as disabled’ classification” upon a party required to undergo a
medical examination, Dr. Rivero asserts that “[t]he Addendum’s invasiveness, its limitless scope,

- 61 -

and waiver of all legal rights” means that “[a]nyone subjected to it must be presumed to be
mentally ill.” Rivero’s Response at 29. Dr. Rivero argues that there is evidence showing UNM
regarded him as having a mental condition limiting his ability to work and that “UNM is seeking
to confirm its presupposition” with the Addendum’s psychiatric evaluation requirement.
Rivero’s Response at 30.

Dr. Rivero asserts that UNM viewed his purported “lack of

professionalism” as precluding his return to full-time status and his stress to be “the emotional
trigger that caused [him] to be substantially limited in his ability to work as a surgeon,” thus
meaning that UNM regarded him as disabled. Rivero’s Response at 30-31. Dr. Rivero argues
that the fact that UNM treated him as disabled is enough for him to be “‘regarded as’ disabled.”
Rivero’s Response at 31. Dr. Rivero avers that UNM “treated [him] as though he could not
perform his job under the type of stress that was a normal part of . . . his job” by not allowing
him to return to full-time employment without following the Addendum’s requirements.
Rivero’s Response at 31. This treatment, Dr. Rivero argues, creates a genuine issue of material
fact whether UNM regarded him as disabled. See Rivero’s Response at 32. Further, he asserts
that “a dispute with Dr. David Pitcher in 2003 . . . contributed to a culture of animosity toward
Dr. Rivero,” creating an intolerable workplace. Rivero’s Response at 32-33. Dr. Rivero alleges
that, adding to this hostile environment, “Dr. Schenck played a deceitful and manipulative game
with Dr. Rivero, at once purporting to be his friend, facilitating the delay engaged in by other
administrators, and then presenting baiting and switching the agreement to return.” Rivero’s
Response at 33. Dr. Rivero also argues that Dr. Schenck retaliated against him for requesting his

- 62 -

credentialing file -- which Dr. Rivero requested to find evidence that the psychiatric examination
was illegal -- by thereafter withdrawing the Addendum and precluding Dr. Rivero’s return to
full-time status at UNM. See Rivero’s Response at 33. Dr. Rivero asserts that UNM’s later
document production reveals no reason to require a psychiatric examination and shows that he
“was demoted without notice from his role as Chief of Adult Reconstruction.”

Rivero’s

Response at 34. Dr. Rivero argues that these cumulative actions “created a workplace in which
no reasonable person could continue to work,” forcing him to resign. Rivero’s Response at 34.
In response to UNM’s assertion that the FAC is untimely, Dr. Rivero notes that there
must be a discharge for a claim of constructive discharge to accrue. See Rivero’s Response at
34. Thus, he agrees with Magistrate Judge Lynch’s decisions in the MTD Order regarding when
his causes of action accrued. See Rivero’s Response at 35. Finally, Dr. Rivero argues that his
claim of retaliation is preserved for the jury to determine at trial, because UNM did not address
this claim in UNM’s MSJ. See Rivero’s Response at 35.
4.

UNM’s Reply.

UNM replied on February 2, 2018. See UNM’s Reply at 1. First, UNM argues that Dr.
Rivero brings two causes of action -- one “for the alleged illegal medical inquiry itself” and the
other “for constructive discharge” -- with separate dates of accrual. UNM’s Reply at 14. UNM
allows that the constructive discharge cause of action accrued when Dr. Rivero resigned, but
reasserts that the cause of action for the medical inquiry accrued when Dr. Rivero received the
Addendum, pursuant to the discovery rule. See UNM’s Reply at 14 (citing Filer v. Polston, 886

- 63 -

F. Supp. 2d 790, 796 (S.D. Ohio 2012)(Rose, J.)). UNM argues that, even if the cause of action
for the medical inquiry accrued when Dr. Rivero knew of the alleged legal injury, this cause of
action would still be time-barred, because Dr. Rivero’s EEOC filing on January 20, 2012,
“demonstrate[s] conclusively that Plaintiff had all of the information needed to file his
Rehabilitation Act claim no later than that date,” UNM’s Reply at 15, and he filed his original
complaint more than three years later, see UNM’s Reply at 15. See also UNM’s Reply at 14.
Further, UNM asserts that this filing does not toll the statute of limitations for this cause of
action, because “[a]n E.E.O.C. administrative action was not a prerequisite for Plaintiff’s
Rehabilitation Act claim.” UNM’s Reply at 14. UNM posits that, because Dr. Rivero “has
failed to even attempt to refute this argument” that the medical inquiry claim is time-barred, the
argument “should be deemed as accepted.” UNM’s Reply at 15.
Second, UNM asserts that the psychiatric evaluation requirement “was job related and
consistent with business necessity.” UNM’s Reply at 15. UNM asserts that it offered the
psychiatric evaluations to Dr. Rivero “to help him return to full-time employment, and to assuage
the concerns of many individuals who were opposed to allowing Plaintiff to return full time.”
UNM’s Reply at 15. UNM notes that it had no contractual obligation to increase Dr. Rivero’s
hours as he years earlier had reduced his time to a 0.05 FTE on his own volition. See UNM’s
Reply at 15. Further, UNM contends that Dr. Rivero knew that his agreement with Dr. Schenck
to attend counseling sessions involved meeting with a psychiatrist, because Dr. Rivero
“contacted a UNM psychiatrist to set them up.” UNM’s Reply at 15 (citing UNM’s MSJ ¶¶ 36-

- 64 -

39, at 9). Accordingly, UNM maintains that the Addendum’s language “generally followed the
agreed upon four counseling sessions with a psychiatrist.” UNM’s Reply at 15 (citing UNM’s
MSJ ¶ 41, at 9). UNM notes that Dr. Rivero does not dispute that a psychiatric evaluation may
be appropriate under certain circumstances, but that he unsuccessfully attempts to distinguish
those cases and to argue, without evidence, that the evaluations UNM required “were especially
onerous.” UNM’s Reply at 16. UNM argues that the caselaw allows an employer to require a
medical evaluation where the employer has “sufficient evidence to raise the question” whether
“the employee is incapable of performing his job,” and notes the number of complaints brought
against Dr. Rivero. UNM’s Reply at 16 (citing Adair v. City of Muskogee, 823 F.3d at 131213). See id. at 16-17. While Dr. Rivero argues “that many of these complaints were not
proven,” UNM asserts “that the staggering coincidence of these multiple complaints, even if not
proven, certainly would cause a reasonable person to inquire as to Plaintiff’s level of
professionalism, requiring the need for some type of psychological evaluation.” UNM’s Reply
at 17. For example, UNM notes that it “received 10 complaints from individuals claiming that
[Dr. Rivero] disparaged their inability to speak English,” which, even if the complaints’
substance are not proven, the number “creates a reasonable concern, in the aggregate, that
Plaintiff had a pattern of disparaging individuals with limited English proficiency.” UNM’s
Reply at 17. UNM argues that some of the complaints have “some demonstrable basis in truth,”
because a patient complained that Dr. Rivero compared him to a monkey and Dr. Rivero admits
to discussing with that patient a study in which monkeys could not resist drugs. See UNM’s

- 65 -

Reply at 18. UNM also notes Dr. Rivero’s own statements in the emails that he authenticated in
his deposition, in which he blamed the messenger -- Barela, the patient advocate who “was
merely passing along patient complaints, without taking sides” -- used all capital letters, and
threatened to report Barela to his supervisor. UNM’s Reply at 18.
Third, UNM asserts that the psychiatric evaluation requirement “was not open-ended, in
the manner that Plaintiff suggested.” UNM’s Reply at 19. UNM maintains that the requirement
“consisted of four sessions with a board certified psychiatrist, in order to determine how Plaintiff
could best improve his professionalism.”

UNM’s Reply at 19.

UNM asserts that, while

Dr. Rivero would have to follow the psychiatrist’s recommendations to increase his employment,
he never underwent an evaluation and therefore has no basis for believing that these
recommendations would be onerous. See UNM’s Reply at 19. UNM also asserts that it needed
access to the records of the evaluations so that it could ensure Dr. Rivero was taking steps to
improve his professionalism. UNM’s Reply at 19. Further, UNM maintains that there are
separate professionalism requirements for Dr. Rivero at a 0.05 FTE and as a full-time surgeon,
because, at 0.05 FTE, Dr. Rivero only “operated on patients with whom he had a pre-existing
relationship, or he performed surgeries alongside UNM surgeons, who would conduct the pre
operative and post operative services,” limiting Dr. Rivero’s exposure to conscious patients.
UNM’s Reply at 20. See id. at 19-20. UNM asserts that, at 0.05 FTE, Dr. Rivero “was relieved
from the day-to-day demands of professionalism,” but, as a full-time surgeon, his
“professionalism issues would need to be addressed.” UNM’s Reply at 20.

- 66 -

Fourth, UNM argues that it did not regard Dr. Rivero as disabled, so he was not
constructively discharged. See UNM’s Reply at 20. UNM notes that, in each of Dr. Rivero’s
reappointment letters, it clearly states that he is not disabled, suffers no impairment, and needs no
accommodation, and that no documents in Dr. Rivero’s personnel file indicate that he suffers
from an impairment. See UNM’s Reply at 20. UNM states that Dr. Rivero focuses on the
psychiatric evaluation requirement and Dr. Schenck’s suggestion that Dr. Rivero not be on call to
establish that UNM regarded Dr. Rivero as disabled. See UNM’s Reply at 21. UNM asserts that
Dr. Rivero’s argument, however, has no merit, because caselaw establishes that an employer’s
requirement that an employee undergo psychiatric evaluation does not equate to a perception of
impairment. See UNM’s Reply at 21 (citing Lanman v. Johnson Cty., 393 F.3d 1151, 1157 (10th
Cir. 2004), superseded on other grounds by statute, 42 U.S.C. § 12102(3)(A); Manson v. Gen.
Motors Corp., 66 F. App’x 28, 36 (7th Cir. 2003); Mickens v. Polk Cty. Sch. Bd., 430
F. Supp. 2d 1265, 1274 (M.D. Fla. 2006)(Merryday, J.)). UNM states that Dr. Rivero does not
dispute the caselaw, but instead maintains that the requirement involves “such an extensive
examination” that UNM must have considered him mentally ill, but cites no “facts, case law, or
expert testimony that would indicate that a simple four part psychological evaluation indicated a
belief on the part of UNM that he was mentally impaired.” UNM’s Reply at 22. UNM asserts
that Dr. Rivero exaggerates the psychiatric evaluation requirement. See UNM’s Reply at 22.
Further, UNM argues that Dr. Schenck’s excusal of Dr. Rivero from being on call, which “was
one aspect of a particular job,” does not mean that UNM considered Dr. Rivero “incapable of

- 67 -

working as a surgeon, let alone incapable of working in general.” UNM’s Reply at 23 (citing
Martin v. Kansas, 996 F. Supp. 1282, 1290 (D. Kan. 1998)(Lungstrum, J.)). UNM asserts that
Dr. Rivero’s argument that this excusal shows UNM regarded him as disabled is effectively an
argument “than an employer regards an employee as disabled if it makes any accommodation for
any of the employee’s difficulties,” which is not a correct statement of the law. UNM’s Reply at
23 (citing Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir. 2004); Kalekiristos v.
CTF Hotel Mgmt. Corp., 958 F. Supp. 641, 659-60 (D.D.C. 1997)(Attridge, M.J.); Whitlock v.
Mac-Gray, Inc., No. Civ.A. 00-10546-GAO, 2002 WL 31432688, at *3 (D. Mass. Oct. 30,
2002)(O’Toole, J.)).
Fifth, UNM argues that, even if it regarded Dr. Rivero as disabled, Dr. Rivero still cannot
make a case for constructive discharge. See UNM’s Reply at 24. UNM asserts that constructive
discharge requires more than a discriminatory act, and that “there must also be aggravating
factors that make staying at the job intolerable.” UNM’s Reply at 25 (internal quotation marks
omitted)(quoting Boyer v. Cordant Techs., Inc., 316 F.3d at 1140). UNM contends that actions
ancillary to the working conditions cannot establish constructive discharge; the working
conditions themselves must be intolerable. See UNM’s Reply at 25 (citing Jaffe v. Sedgwick
Claims Mgmt. Servs., Inc., Case No. 2:17-cv-03421-ODW (Ex), 2017 WL 316561, at *4 (C.D.
Cal. July 24, 2017)(Wright, J.)). UNM construes Dr. Rivero’s dispute with Dr. Pitcher as a
personality conflict, with no evidence that Dr. Pitcher regarded Dr. Rivero as disabled nor that
such regard motivated the conflict. See UNM’s Reply at 25. As to Dr. Rivero’s contention that

- 68 -

Dr. Schenck “‘played a deceitful and manipulative game’ with him,” UNM reasserts that
Dr. Rivero knew the counseling sessions would be with a psychiatrist, because he had contacted
one for this purpose. UNM’s Reply at 25-26 (quoting Rivero’s Response at 33). Further, UNM
notes that Dr. Schenck did not draft the Addendum and withdrew it only after Dr. Rivero
“refused to admit his prior unprofessionalism, which was the entire reason why counseling was
suggested.” UNM’s Reply at 26 (citing UNM’s MSJ ¶¶ 33, 43-44, at 8, 10). UNM asserts that,
after Dr. Schenck withdrew the Addendum, Dr. Rivero “stayed on at UNM at the behest of
Dr. Schenck.” UNM’s Reply at 26. UNM argues that Dr. Rivero’s problems with Dr. Pitcher
and Dr. Schenck “were in the nature of ‘personality conflicts and strong differences of opinion’
that do not support a claim for constructive discharge.” UNM’s Reply at 26 (quoting Sanchez v.
Gen. Growth Mgmt. Co., 136 F.3d 1328, 1998 WL 44520, at *1 (5th Cir. Jan. 23, 1998)(per
curiam)). UNM also argues that these actions which Dr. Rivero describes did not impact his
working conditions. See UNM’s Reply at 26.
Finally, UNM asserts that Dr. Rivero “has not preserved a retaliation claim for trial.”
UNM’s Reply at 27. UNM notes that the FAC contains only “the conclusory averment that
‘[t]he decision to revoke the offer of more hours was also motivated by retaliation because Dr.
Rivero objected to the illegal medical inquiry.’” UNM’s Reply at 27 (quoting FAC ¶ 53, at 10).
UNM also notes that the FAC does not list “retaliation” as its own cause of action and that the
FAC has only one Count for “violation of the Rehabilitation Act.” UNM’s Reply at 28 (quoting
FAC at 9). UNM asserts that “it was reasonable for UNM to rely on” Magistrate Judge Lynch’s

- 69 -

determination in the MTD Order that the FAC contains two causes of action: (i) “the allegedly
illegal medical inquiry”; and (ii) “the alleged constructive discharge.” UNM’s Reply at 28.
UNM argues that, even if the FAC states a claim for retaliation, the claim would be time-barred,
because Dr. Rivero waited five years after Dr. Schenck withdrew the Addendum to sue. See
UNM’s Reply at 28. UNM asserts that Dr. Rivero’s failure to acknowledge his unprofessional
behavior rendered the Addendum pointless, so Dr. Rivero’s “retaliation claim is wholly without
merit.” UNM’s Reply at 28.
5.

Rivero’s MSJ.

Dr. Rivero filed Rivero’s MSJ on December 8, 2017. See Rivero’s MSJ at 1. In Rivero’s
MSJ, Dr. Rivero asks the Court to strike some of UNM’s affirmative defenses raised in the
Defendants University of New Mexico Board of Regents’ Answer to Plaintiff’s First Amended
Complaint to Recover Damages for Violation of the Rehabilitation Act of 1973, filed January 5,
2017 (Doc. 45)(“Answer”).

See Rivero’s MSJ at 1.

Dr. Rivero first discusses UNM’s

affirmative defenses I, that the “Plaintiff failed to state a claim for which relief can be granted,”
Answer at 10; II, that the “Plaintiff’s claims are barred by the statute of limitations,” Answer at
10; and III, that the “Plaintiff’s claims are barred by the doctrine of laches and waiver,” Answer
at 10. See Rivero’s MSJ at 11. Dr. Rivero asserts that these affirmative defenses “are all based
on the assertion the claims under the Rehabilitation Act in the FAC are barred by the statute of
limitations,” Rivero’s MSJ at 11, which he contends the MTD Order already addressed, see
Rivero’s MSJ at 11-12. Dr. Rivero asserts that the factual record supports the FAC’s allegations

- 70 -

and the MTD Order’s conclusions. See Rivero’s MSJ at 12. Dr. Rivero cites the Supreme Court
of the United States’ decision in Green v. Brennan to argue that the limitations period does not
begin until “the plaintiff has a complete and present cause of action,” which, for a constructive
discharge claim, requires resignation. Rivero’s MSJ at 12 (citing Green v. Brennan, 136 S. Ct. at
1776-77). Dr. Rivero argues that the MTD Order’s “logic as to the timeliness of claims filed
under the Rehabilitation Act may now be supported with facts.” Rivero’s MSJ at 13. Dr. Rivero
quotes the MTD Order’s analysis:
“Dr. Rivero did not find out that UNM had no business necessity for the[
psychiatric examination] requirements until affidavits were filed by Drs. Trotter
and Bailey in the state case which averred that all of the documents had been
produced, and Dr. Rivero was able to determine that UNM had no evidence or
documentary support to substantiate its requirement of psychiatric
testing . . . . The affidavits were filed, respectively, on January 15, and January
24, 2014 . . . . Given that a plaintiff must prove that his employer had no business
necessity for the required medical testing, Dr. Rivero’s claim under § 794 for the
psychiatric testing was not complete and cognizable until January 2014.”
Rivero’s MSJ at 14 (quoting MTD Order at 8). Dr. Rivero thus asserts that his “claims under the
Rehabilitation Act were timely filed both upon the initial filing of the Original Complaint on
April 19, 2016 (in relation back to the claims) and upon the filing of the FAC,” “less than three
years from the time of accrual.” Rivero’s MSJ at 14. Dr. Rivero notes that he resigned from
UNM in May, 2014 -- less than three years before the Complaint’s filing -- so he argues that his
constructive discharge claim is also timely. See Rivero’s MSJ at 14.
Dr. Rivero notes the law-of-the-case doctrine as an additional ground for striking UNM’s
affirmative defenses I through III. See Rivero’s MSJ at 15. According to Dr. Rivero, the law-of-

- 71 -

the-case doctrine “posits that ‘when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.’” Rivero’s MSJ at 15
(quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). Dr. Rivero asserts
that a court may
depart from the doctrine in “three exceptionally narrow circumstances: (1) when
the evidence in a subsequent trial is substantially different; (2) when controlling
authority has subsequently made a contrary decision of the law applicable to such
issues; or (3) when the decision was clearly erroneous and would work a manifest
injustice.”
Rivero’s MSJ at 15 (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)).
Dr. Rivero argues that neither law nor fact has changed since the MTD Order, and that the
decision is not clearly erroneous, so none of the exceptions to law-of-the-case doctrine applies
here and the finding of timeliness should remain. See Rivero’s MSJ at 15-16.
Dr. Rivero then discusses UNM’s affirmative defense XIII: “At all times Defendant
UNM acted in accordance with its policies and regulations, and applied such policies and
regulations consistently and fairly.” Answer at 10. See Rivero’s MSJ at 16. Dr. Rivero argues
that the Court should strike this defense, because it lacks factual support -- “[t]he record contains
no evidence that UNM has applied any of its policies or regulations with respect to any of the
claims brought by Dr. Rivero in the FAC,” and “there is evidence that Defendant violated its
own Policy C70[89] by failing to provide Dr. Rivero with his requested records.” Rivero’s MSJ at

89

UNM’s Policy C70: Confidentiality of Faculty Records provides rules as to how
“[p]ersonnel files concerning faculty of the University of New Mexico[] shall be gathered,
retained, disclosed, and used by academic or administrative units of the University.” UNM

- 72 -

16. Dr. Rivero notes that, in response to his interrogatory asking UNM to provide facts to
support its affirmative defenses, UNM “states that ‘UNM’s policies require faculty members to
act in a professional manner, and to treat each [sic] other employees, as well as patients, with
respect.’” Rivero’s MSJ at 17 (quoting Board of Regents of the University of New Mexico’s
Supplemental Responses to Plaintiff Dennis Rivero’s First Set of Interrogatorries [sic], First
Requests for Production of Documents, and First Requests for Admission, No. XIII Answer at 3,
filed December 8, 2017 (Doc. 144-12)(“Rivero’s First Interrogatories, Supplemental Answer”)).
Dr. Rivero posits that UNM’s “supplemental answer clarifies no further,” because it “states only
that, ‘professional and institutional standards require UNM to maintain protect its patients,

Faculty Handbook, C70: Confidentiality of Faculty Records at 1, filed December 18, 2017
(Doc. 144-15)(“Policy C70”). Policy C70 provides that the personnel file “must include any
written information used to any degree in making a decision concerning the employment, rank or
status of a faculty member,” and that they shall be “compiled or retained” for the sole purpose of
“administering the University personnel system.” Policy C70 at 1. “Faculty members have the
right to know and the responsibility to examine their personnel files,” with the exception of
confidential information. Policy C70 at 1. As to the right of inspection, the Policy C70
provides:
Each faculty member has the right to inspect and review without unreasonable
delay by the university (normally within two weeks) any record or file maintained
on him or her by the University subject to the provisions of this Policy and any
limitations imposed by law. If additional time is needed to produce a record for
inspection, the faculty member shall be informed in writing of the reason for the
delay and the date such record will be available.
Policy C70 at 1. The Policy states that UNM will redact documents for which the author wishes
to remain confidential or, if it “does not appear feasible to protect the identity of the author
through redaction, the document may be accurately summarized in writing.” Policy C70 at 2.
Further, the faculty member cannot inspect any “information [that] is confidential under this
Policy, or privileged under law.” Policy C70 at 2.

- 73 -

families, employees, and staff by maintaining professional standards, and addressing issues of
unprofessionalism and disruptive behavior.’”

Rivero’s MSJ at 17 (quoting Rivero’s First

Interrogatories, Supplemental Answer, No. XIII at 5). Further, Dr. Rivero asserts that UNM has
no actual policies relevant to its psychiatric examination requirement to implement, because
“UNM states that it ‘has no set policy pertaining to Mental Examinations.’” Rivero’s MSJ at 17
(quoting Board of Regents of the University of New Mexico’s Second Supplemental Responses
to Plaintiff Dennis Rivero’s First Set of Interrogatorries [sic], First Requests for Production of
Documents, and First Requests for Admission, No. 4 Second Supplemental Answer at 6, filed
December 8, 2017 (Doc. 144-13)).
Dr. Rivero also argues that UNM’s affirmative defense XIV -- that the “Defendant
fulfilled any and all obligations it had to Plaintiff under contract or statute,” Answer at 11 -lacks factual support, see Rivero’s MSJ at 17.

Dr. Rivero notes that, in response to his

interrogatories to explain its affirmative defenses with respect to XIV, UNM “states, ‘See above
Affirmative Defenses. Discovery is ongoing. UNM reserves the right to supplement its Answer
to its Interrogatory.’” Rivero’s MSJ at 18 (quoting Rivero’s First Interrogatories, Supplemental
Answer, No. XIII at 5).90 Dr. Rivero maintains that, because UNM “has neither amended nor
supplemented its explanation of this affirmative defense” and “has failed to specify which

90

The portion of Rivero’s First Interrogatories, Supplemental Answer provided to the
Court does not contain UNM’s explanation for its affirmative defense XIV, but ends at XIII.
The document contains the language “Discovery is ongoing. UNM reserves the right to
supplement its Answer to its Interrogatory,” but this is under the response to XIII. Rivero’s First
Interrogatories, Supplemental Answer, No. XIII at 5.

- 74 -

affirmative defenses apply to its answer,” affirmative defense XIV lacks factual support and the
Court should strike it. Rivero’s MSJ at 18.
Finally, Dr. Rivero challenges UNM’s affirmative defense XV, that the “Defendant
reserves the right to amend its Answer to Plaintiff’s Complaint to include additional Affirmative
Defenses once facts supporting the same become known.” Answer at 11. See Rivero’s MSJ at
18. Dr. Rivero asserts that the Court should strike this defense, because the “[d]iscovery is
closed and dispositive motions will have been exchanged. Any additional defenses would
prejudice Dr. Rivero at such a late stage of litigation.” Rivero’s MSJ at 18.
6.

UNM’s Response.

UNM responded on January 12, 2018. See UNM’s Response at 1. UNM first asserts that
the Court is not bound by the MTD Order regarding its affirmative defenses I through III and
summary judgment is improper as to these defenses. See UNM’s Response at 9-10. UNM
argues that the “Court has the discretion to reconsider parts of the [MTD] Order . . . to hold that
Plaintiff’s medical examination claims are barred by the applicable statute of limitations,” and
“to hold that Plaintiff failed to state a claim for constructive discharge upon which relief can be
granted.” UNM’s Response at 11. UNM notes that courts have the “inherent power to reopen
any interlocutory matter in its discretion,” meaning that any
“order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all of the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.”

- 75 -

UNM’s Response at 11-12 (emphasis in UNM’s Response)(quoting Pedroza v. Lomas Auto
Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.), superseded on other grounds by
statute, Fed. R. Civ. P. 59). UNM asserts that the MTD Order is “entirely interlocutory: it
provided a final judgment as to none of the rights and liabilities of any of the parties” and, thus,
Dr. Rivero’s argument as to the law-of-the-case doctrine fails. UNM’s Response at 12. UNM
further notes that Dr. Rivero cites two cases which “concern[] the question of whether an earlier
appellate ruling could be overturned; neither discussed interlocutory district court orders.”
UNM’s Response at 12 (discussing United States v. Monsisvais and United States v. Alvarez).
Accordingly, UNM posits that the-law-of-the-case doctrine “require[s] that district courts remain
consistent with earlier appellate rulings” and does not apply “to a district court’s own non-final
orders.” UNM’s Response at 12 (emphasis in original). UNM notes that the Tenth Circuit, in
Allison v. Bank One-Denver, 289 F.3d 1223 (10th Cir. 2002), upheld a district court’s decision
that appeared to contradict its earlier, oral ruling, stating that “[a] lower court’s ability to depart
from its own prior decisions is discretionary.” UNM’s Response at 13 (internal quotation marks
omitted)(quoting Allison v. Bank One-Denver, 289 F.3d at 1247).
UNM therefore argues that the Court has discretion to revisit the MTD Order “and to
alter that decision so that it is more consistent with applicable law.” UNM’s Response at 14.
UNM asserts that, “in the context of a civil rights claim, the cause of action accrues, indicating a
‘complete and present cause of action’ when the plaintiff finds out about the injury, not when the
plaintiff obtains all relevant facts.” UNM’s Response at 14 (quoting Wallace v. Kato, 549 U.S.

- 76 -

at 388; and citing Baker v. Bd. of Regents of the State of Kan., 991 F.2d at 632). UNM argues
that, “because ‘the discovery rule hinges upon actual, as opposed to legal, injury,’” Dr. Rivero’s
claim of an illegal medical examination accrued in March, 2011, which is when he alleges that
he received the Addendum with the psychiatric examination requirement. UNM’s Response at
14 (quoting Filer v. Polston, 886 F. Supp. 2d at 796). UNM also notes that, as of January 20,
2012, Dr. Rivero was aware of the psychiatric evaluation requirement and believed that it
violated his rights, because he filed a charge of discrimination with the EEOC alleging this
violation. See UNM’s Response at 15. UNM maintains that the Rehabilitation Act incorporates
New Mexico’s three-year statute of limitations for personal injury and does not require
exhaustion of administrative remedies. See UNM’s Response at 9. Accordingly, UNM argues
that, because Dr. Rivero knew of the examination requirement and believed it illegal more than
three years before he filed his Complaint, the medical examination claim is time-barred and,
thus, Dr. Rivero “is not entitled to summary judgment as to the statute of limitations defense
regarding that cause of action.” UNM’s Response at 15. See id. at 15-16.
UNM concedes that Dr. Rivero’s claim for constructive discharge did not accrue until he
resigned and, thus, that the statute of limitations does not bar that claim. See UNM’s Response
at 16. UNM argues, however, that neither the FAC “nor facts developed through discovery
establish a claim for constructive discharge.” UNM’s Response at 16. Although the MTD Order
found that Dr. Rivero’s FAC states a claim for constructive discharge, UNM asserts that the
Court may revisit this decision. See UNM’s Response at 16. UNM notes that “‘[t]he bar is quite

- 77 -

high’ for proving constructive discharge.” UNM’s Response at 16 (quoting Garrett v. HewlettPackard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)). Further, UNM asserts that constructive
discharge requires that the employer take deliberate action which “makes or allows the
employee’s working conditions to become so intolerable that the employee has no other choice
but to quit,” using an objective, reasonable-person standard to judge intolerability. UNM’s
Response at 16 (internal quotation marks omitted)(quoting MacKenzie v. City & Cty. of Denver,
414 F.3d 1266, 1281 (10th Cir. 2005), abrogated on other grounds by Lincoln v. BNSF Ry. Co.,
900 F.3d 1166 (10th Cir. 2018)). UNM argues that, in Dr. Rivero’s FAC, his “sole claim
regarding constructive discharge concerned the filing of affidavits by two UNM officials, in a
state mandamus action, indicating that all documents had been submitted,” which Dr. Rivero
took to mean UNM had no legal grounds for its psychiatric evaluation requirement and, “[a]s a
consequence, [he] alleged that conditions had become intolerable.” UNM’s Response at 16-17.
UNM notes that Dr. Rivero “does not allege that the affidavits that UNM submitted actually
affected his working conditions,” but that “he only alleges that they affected his subjective view
of those working conditions.” UNM’s Response at 17. UNM asserts that it submitted the
affidavits that the state court ordered in response to Dr. Rivero’s action, so it was not UNM’s
deliberate act, and posits that “the only deliberate act at issue in the instant case was the
requirement that Plaintiff undergo a psychological evaluation.” UNM’s Response at 17. UNM
argues that the psychiatric evaluation requirement is not enough for a constructive discharge
claim, but, even if it is sufficient, Dr. Rivero waited too long to resign to prevail on this claim.

- 78 -

See UNM’s Response at 17 (citing Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir.
1991)). UNM argues that, because Dr. Rivero “remained at UNM for three years after being
given this supposedly onerous Addendum,” his claim must fail, because “he clearly did not find
the conditions so terrible that he felt he had no choice but to quit.” UNM’s Response at 18.
UNM posits that, if the affidavits rendered Dr. Rivero’s working conditions intolerable, he still
waited too long to quit, because UNM filed the affidavits in January, 2014, and Dr. Rivero
waited to resign until May, 2014. See UNM’s Response at 18 (citing Smith v. Bath Iron Works
Corp. for the proposition that a four-month gap between the conduct and the resignation
precludes a claim for constructive discharge). According to UNM, therefore, Dr. Rivero is not
entitled to summary judgment on UNM’s affirmative defenses I through III.

See UNM’s

Response at 18.
UNM then argues that it “has produced substantial evidence in support of” its affirmative
defense XIII, that it followed its policies, and applied them fairly and consistently. UNM’s
Response at 19. UNM argues that it has “policies indicating that unprofessional behavior be
addressed swiftly and decisively,” and that “the Joint Commission, upon which UNM relies for
its accreditation, also requires that medical facilities address unprofessional conduct.” UNM’s
Response at 19 (citing Board of Regents of the University of New Mexico’s Second
Supplemental Responses to Plaintiff Dennis Rivero’s First Set of Interrogatorries [sic], First
Requests for Production of Documents, and First Requests for Admission, No. 4 Answer,
Supplemental Answer, and Second Supplemental Answer at 4-8, filed January 12, 2018

- 79 -

(Doc. 159-3)(“Rivero’s First Interrogatories, Second Supplemental Answer”). UNM asserts that
Dr. Rivero “had demonstrated episodes of severe unprofessional behavior, which UNM was
required to address pursuant to its policies and those of its accreditation body.”

UNM’s

Response at 19 (citing UNM’s MSJ at 4-6). UNM posits that “[i]t is well settled that an
employer can use psychological evaluations to determine the cause of unprofessional behavior
without violating the Americans With Disabilities Act.” UNM’s Response at 19 (citing Lanman
v. Johnson Cty., 393 F.3d at 1157). UNM argues that it would be “practically impossible” to
draft a formal policy “governing when a physician exhibiting unprofessional behavior is referred
to a mental health evaluation,” so it is irrelevant that UNM does not have such a policy. UNM’s
Response at 19. UNM notes that it has referred physicians to mental health evaluations in the
past, see UNM’s Response at 19 (citing Rivero’s First Interrogatories, Second Supplemental
Answer, No. 3 at 2-3), and that Dr. Schenck did not draft the Addendum, so it is irrelevant that
he did not consult any policies on mental health evaluations, see UNM’s Response at 20.
UNM also asserts that its affirmative defense XIV has factual support, stating that, in
response to Dr. Rivero’s interrogatories, UNM referred to its other affirmative defenses, because
“the facts supporting the other affirmative defenses clearly also support UNM’s defenses that it
fulfilled its obligations under contract or statute.” UNM’s Response at 20. According to UNM,
Dr. Rivero “has not argued that UNM violated its contractual duties to him,” and only “that
UNM violated the Rehabilitation Act’s prohibition of medical examinations by requiring him to
undergo a psychological evaluation as a condition of increased hours.” UNM’s Response at 20.

- 80 -

UNM asserts that the Rehabilitation Act “allows medical examinations that are ‘job-related and
consistent with business necessity,” UNM’s Response at 20 (quoting 42 U.S.C.
§ 12212(d)(4)(A)), and its affirmative defenses V and VI -- on which Dr. Rivero does not seek
summary judgment -- are based on this exception and contain factual support, see UNM’s
Response at 20-21. Accordingly, UNM argues that it did not violate the Rehabilitation Act,
therefore “acted in accordance with its statutory obligations,” and that “summary judgment is
inappropriate as to that affirmative defense.” UNM’s Response at 21.
7.

The First Disclosure Letter.

The Court issued a disclosure letter to the parties on January 23, 2018.91 See Letter from
the Court to Eric D. Norvell, Alfred A. Park, and Lawrence M. Marcus (dated January 23, 2018),
filed January 23, 2018 (Doc. 163)(“First Disclosure Letter”). The First Disclosure Letter’s body
states in full:
I want to bring a matter to your attention. I have, with my law clerks,
reviewed the Judicial Code of Conduct and do not believe this matter requires me
to recuse myself. I want everyone, however, to be fully informed and comfortable
with my participation in the case.
In the fall of 2017, I co-taught a class at the University of New Mexico
School of Law called “Church and State” with Andy Schultz. We have taught the
class together on four other occasions. We taught similar classes from January
until May in 2010 and 2012, and in the fall of 2006 and of 2015.
91

At this point in time, the Court had yet to meet with the parties, and had ruled on only
two non-dispositive motions. See Stipulated Order Amending Case Management Deadlines,
filed January 5, 2018 (Doc. 155); Stipulated Order Granting Unopposed Motion to Exceed Page
Limits for Filing a Response in Opposition to Defendant’s Motion for Summary Judgment, filed
January 16, 2018 (Doc. 162).

- 81 -

In addition to weekly classes, Mr. Schultz and I usually have to meet once
before the semester begins to discuss the curriculum and once after the semester
ends to grade papers. We also usually invite the students to one of our homes for
the last class, food, and refreshments.
The last class was at my home on November 21, 2017, and both Mr.
Schultz and his wife were present. We met on January 6, 2018 to grade papers
and assign grades. To my knowledge, we are done with the class.
I waive my pay for the class.[92] In exchange, UNM gives me a student to
help me write a law review article and he or she receives my pay.[93] The student
helping me last fall may do some more work on the article in the future.[94] I also
have made him an offer to serve as my law clerk for 2019-2020 and he has orally
accepted.
I believe that I can be fair and impartial. I see no reason to recuse myself.
Please call my Courtroom Deputy Clerk, Michelle Behning (505-348-2289), if
anyone objects. I have instructed Ms. Behning not to tell me who calls. If anyone
objects, or has any questions, we can perhaps, have a telephonic conference. If
Ms. Behning does not receive any calls, I will proceed to handle the case.
First Disclosure Letter at 1-2. Nobody called Ms. Behning about the First Disclosure Letter.
92

It is the Court’s memory that, for the first three classes it taught, it just declined the pay.
Only for the last two classes has it gotten a research assistant in exchange.
93

The article is on the free exercise and establishment clauses of the First Amendment to
the Constitution of the United States of America, the topic of the class. The Court, after writing
a lengthy paper on this topic and after teaching this School of Law class five times, has always
thought it might have something to say and to contribute on the subject. The Court has, because
of the crush of cases in the District of New Mexico, never been able to finish it or ever get too far
in working on it. At this stage of the Court’s career, chances are fairly faint that the Court will
ever finish the article. The research assistant position has, however, given the Court the
opportunity to work with two more law students, one of whom the Court has hired as a law clerk
for 2019-2020, and the other has become a law clerk for one of the District’s Magistrate Judges.
94

The research assistant never did more work on the law review article and is unlikely to
ever work on it.

- 82 -

8.

Rivero’s Reply.

Dr. Rivero replied on February 14, 2018. See Rivero’s Reply at 1. Dr. Rivero first
argues that UNM’s Response “offer[s] no grounds by which to apply the exceptions to the law of
the case doctrine that would warrant revisiting of the affirmative defenses.” Rivero’s Reply at 9.
Dr. Rivero states that he does not dispute that the Court has discretion to revisit the MTD Order,
but that reconsideration is unwarranted. See Rivero’s Reply at 9 & n.3. Dr. Rivero asserts that
“denials of motions to dismiss are conclusive” and so “any dispute as to such a denial could have
been taken up on immediate appeal under the collateral order doctrine.” 95 Rivero’s Reply at 910 (citing NCDR, L.L.C. v. Mauze & Bagby P.L.L.C., 745 F.3d 742, 748 (5th Cir.
2014)(“Whether or not a later summary judgment motion is granted, denial of a motion to
dismiss is conclusive as to the right to avoid the burden of litigation . . . . To be considered
conclusive, it should be unlikely that the district court will revisit the order.” (citations and
internal punctuation omitted))). Further, Dr. Rivero notes that the law-of-the-case doctrine also
“holds that a court should generally adhere to its own prior rulings.” Rivero’s Reply at 10
(internal quotation marks omitted)(quoting United States v. Lacey, Case No. 89-10054-01-SAC,

95

The Court notes for the reader’s convenience that this is an incorrect statement of the
law. The collateral order doctrine applies to only district courts’ decisions: (i) “that are
conclusive”; (ii) “that resolve important questions completely separate from the merits”; and
(iii) “that would render such important questions effectively unreviewable on appeal from final
judgment in the underlying action.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
867 (1994). All three requirements must be met for an interlocutory order to be immediately
appealable under the collateral order doctrine, see Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. at 867, and a denial of a motion to dismiss does not, in all circumstances, meet all three
requirements, see, e.g., Van Cauwenberghe v. Baird, 486 U.S. 517 (1988).

- 83 -

1994 U.S. Dist. LEXIS 7392, at *19 (D. Kan. May 6, 1994)(Crow, J.)). Dr. Rivero maintains
that the Court “adheres to a three-factor analysis for reconsideration of an interlocutory order.”
Rivero’s Reply at 10. According to Dr. Rivero, the Court should: (i) “restrict its review of a
motion to reconsider prior ruling in proportion to how thoroughly the earlier ruling addressed the
specific findings or conclusions that the motion to reconsider challenges,” Rivero’s Reply at 10
(internal quotation marks omitted)(quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C.,
308 F.R.D. 410, 434 (D.N.M. 2015)(Browning, J.)); (ii) “consider the case’s overall progress and
posture, the motion for reconsideration’s timeliness relative to the ruling it challenges, and any
direct evidence the parties may produce, and use those factors to assess the degree of reasonable
reliance the opposing party has placed in the Court’s prior ruling,” Rivero’s Reply at 11 (internal
quotation marks omitted)(quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C., 308
F.R.D. at 434); and (iii)
“be more inclined to grant motions for reconsideration if the movant presents
(i) new controlling authority -- especially if the new authority overrules prior law
or sets forth an entirely new analytical framework; (ii) new evidence -- especially
if the movant has a good reason why the evidence was not presented the first time
around; or (iii) a clear indication -- one that manifests itself without the need for
in-depth analysis or review of the facts -- the Court erred,”
Rivero’s Reply at 12 (quoting Anderson Living Tr. v. WPX Energy Prod., L.L.C., 308 F.R.D. at
434-35).

Dr. Rivero argues that the MTD Order thoroughly addressed UNM’s arguments

regarding timeliness in its MSJ and Response, as UNM raised the same arguments in the MTD.
See Rivero’s Reply at 11. Dr. Rivero also argues that he placed considerable, reasonable
reliance on the MTD Order, noting the substantial discovery in which he and UNM have

- 84 -

engaged, and that, despite the extensive discovery, UNM “has come forward with no material
facts that change any aspect of the previously denied Motion to Dismiss.” Rivero’s Reply at 11.
Dr. Rivero further asserts that “there is no clear indication of error by the Court,” so UNM “does
not clear the threshold for reconsideration,” Rivero’s Reply at 12, and, thus, the Court should not
reconsider UNM’s statute of limitations arguments, see Rivero’s Reply at 13.
Dr. Rivero then argues that, if the Court reconsiders UNM’s statute of limitations
arguments, Green v. Brennan “disposes of Defendant’s assertions that Dr. Rivero’s claims are
time-barred.” Rivero’s Reply at 13. Dr. Rivero restates the events that lead to the intolerable
workplace that caused his resignation:
[T]he discriminatory presentation of the illegal medical inquiry in the Addendum,
the obstructionist and unlawful withholding of documents by UNM
administrators, the withdrawal of the discriminatory Addendum when Dr. Rivero
sought a basis for its terms, the fostering of frivolous defenses to the Mandamus
Action to further facilitate wrongful withholding documents, and the filing of
affidavits in January 2014 affirming that no additional documents existed for
production.
Rivero’s Reply at 13-14 (citing Rivero’s MSJ ¶¶ 10-26, at 3-7). Accordingly, Dr. Rivero asserts
that the medical inquiry claim did not accrue until UNM filed affidavits attesting it produced all
documents, because this notification is when Dr. Rivero could “determine that UNM had no
business necessity for the psychiatric examinations,” and that the constructive discharge claim
did not accrue until he resigned on May 21, 2014. Rivero’s Reply at 14. Dr. Rivero notes that
the Court could determine that “the claim for discrimination for the illegal medical inquiry,
because of its innate relationship to Dr. Rivero’s termination of employment, may not have

- 85 -

accrued as an independent claim until such time as Dr. Rivero resigned,” although the MTD
Order rejected this interpretation. Rivero’s Reply at 14 n.4. Dr. Rivero responds to UNM’s
argument that he waited too long to resign by noting the Supreme Court’s logic in Green v.
Brennan that it “doubt[s] that a victim of employment discrimination will continue to work in an
intolerable environment merely because he can thereby extend the limitations period for a claim
of constructive discharge.” Rivero’s Reply at 14 (internal quotation marks omitted)(quoting
Green v. Brennan, 136 S. Ct. at 1781). Dr. Rivero argues that he “had endured years of
denigration of his reputation,” Rivero’s Reply at 14; that Dr. Schenck and other administrators
turned on him, see Rivero’s Reply at 15; and that the affidavits declaring UNM disclosed all
documents, with no basis for the psychiatric examination requirement, “were the discriminatory
straws that broke the camel’s back,” Rivero’s Reply at 15 (citing Ulibarri v. Lopez, No. 95-2291,
1996 U.S. App. LEXIS 27185, at *6 (10th Cir. 1996)). Dr. Rivero asserts that his “workplace
was brimming with deceit, betrayal, and distrust, and no reasonable person could have continued
to remain employed there.” Rivero’s Reply at 15.
According to Dr. Rivero, UNM’s Reply in support of its own MSJ states “that Dr. Rivero
did not respond to its arguments that the claims in the FAC are time-barred,” which he asserts is
not true, because Dr. Rivero incorporated his MSJ arguments in his Response. Rivero’s Reply at
15 (citing Rivero’s Response at 34-35). Dr. Rivero posits that this incorporation cannot be
mistaken “as anything but an express refutation of the statute of limitations claims.” Rivero’s

- 86 -

Reply at 15. Dr. Rivero thus asserts that he adequately responded to UNM’s MSJ arguments
regarding the statute of limitations. See Rivero’s Reply at 15.
Dr. Rivero then underscores that reconsideration of UNM’s affirmative defenses I and III
is improper, and that these defenses do not survive because of UNM’s reassertion that
Dr. Rivero’s FAC did not make a constructive discharge claim. See Rivero’s Reply at 16.
Dr. Rivero notes that Magistrate Judge Lynch “held that constructive discharge was adequately
(if ‘inartfully’) pled, enough so to survive a motion to dismiss,” and Dr. Rivero asserts that this
finding is conclusive as to bring the case through discovery. Rivero’s Reply at 16 (quoting MTD
Order at 6). Dr. Rivero maintains that, because UNM notes no new evidence to contest Dr.
Rivero’s constructive discharge claim, UNM is merely rehashing its same arguments, which the
Court should not reconsider. See Rivero’s Reply at 16. As to UNM’s assertion that Dr. Rivero
waited too long to resign, Dr. Rivero posits that UNM is “ask[ing] the Court to ignore facts that
support the fostering of an intolerable workplace . . . [and] insinuate that that nothing happened
during a purported gap of time when Dr. Rivero sought answers for why the Addendum
contained its oppressive requirements.” Rivero’s Reply at 17. Dr. Rivero argues that his
workplace became intolerable when he determined that UNM had no basis for the psychiatric
evaluation requirement upon UNM’s filing of affidavits showing it produced all documents, and
that he resigned within a reasonable time of this determination. See Rivero’s Reply at 17.
Dr. Rivero states that he “cleared out his locker during his monthly visit after the affidavits were
filed and did not return to UNM,” then tendered his formal resignation on May 14, 2014, which

- 87 -

he contends was a reasonable date “given the gravity and significance of Dr. Rivero’s
circumstances as discussed in detail in the record of this case.” Rivero’s Reply at 17 (citing
Resignation Letter at 1). As to the defense of laches and waiver, Dr. Rivero argues that UNM’s
response to his interrogatory refers to its affirmative defense II response, which in turn refers to
its MTD and statute-of-limitations defense. See Rivero’s Reply at 17-18 (citing Rivero’s First
Interrogatories, Supplemental Answer, Nos. III. & II at 2). Dr. Rivero argues that UNM’s MTD
“contains no mention, explanation, or preservation of the defenses of ‘laches and waiver,’ and
the statute of limitations defense provides no explanation of, and bears no relation to, the ‘laches
and waiver’ defense,” so UNM has not preserved it, and the Court should strike it. Rivero’s
Reply at 18.
Dr. Rivero asserts that, although UNM attempts to preserve its affirmative defense XIII
by citing to “pages of general statements[,] . . . this paper blizzard does not mean that UNM
actually implemented any of those statements.” Rivero’s Reply at 18. Dr. Rivero asserts that
UNM concedes that it has no set policy regarding mental examinations and, because Dr. Schenck
gave Dr. Rivero the Addendum and is UNM’s agent, “Dr. Schenck was responsible for
understanding which policies were applied in presenting the document to Dr. Rivero.” Rivero’s
Reply at 19. See Rivero’s Reply at 18-19.
Finally, Dr. Rivero contends that UNM responds to his motion to strike affirmative
defense “XIV with a vague and unclear assertion that it has adhered to statutory obligations,
whatever those obligations may be.” Rivero’s Reply at 19. Dr. Rivero argues that, because of

- 88 -

UNM’s apparent assertion that affirmative defenses “V and VI constitute the defenses pertaining
to the Rehabilitation Act,” affirmative defense “XIV is superfluous and should be stricken, since
Aff. Def. V and VI encompass the entirety of Aff. Def. XIV.” Rivero’s Reply at 19. Dr. Rivero
argues that, if this apparent assertion is not the case, then the Court should strike UNM’s
affirmative defense XIV, because UNM “can cite to no other statute or contract applicable in this
case.” Rivero’s Reply at 19.
9.

The Complaints MIL.

Dr. Rivero filed the Complaints MIL on December 8, 2017. See Complaints MIL at 1.
Dr. Rivero anticipates that UNM “will attempt to introduce documentary evidence related to socalled ‘complaints’ from patients, staff, administration, or other parties pertaining, directly or
indirectly, to Dr. Rivero . . . as far back as 1992.” Complaints MIL at 1. Dr. Rivero contends
that any complaint “not relevant to the time frame at issue in this litigation” is stale, and requests
that the Court “prohibit[] the introduction, mention, allusion or other exposure of the jury to
[such] complaints.” Complaints MIL at 1. Dr. Rivero argues that “[t]he relevant time frame
pertaining to any complaints regarding Dr. Rivero is 2006 and thereafter,” and that complaints
before 2006 “are irrelevant, as they are too remote in time,” and, at trial, “could mislead and
confuse the jury and impermissibly prejudice the jury against Dr. Rivero.” Complaints MIL at 4.
According to Dr. Rivero, UNM “cited as a basis for refusing to allow Dr. Rivero back
without the onerous requirements of the Addendum as an ‘increase in complaints,’ not all
complaints cumulatively,” and, in UNM’s MSJ, UNM “acknowledges a notable gap between

- 89 -

early complaints (in the mid-1990s) and later complaints (around 2006).” Complaints MIL at 4
(quoting Board of Regents of the University of New Mexico’s Supplemental Responses to
Plaintiff Dennis Rivero’s First Set of Interrogatorries [sic], First Requests for Production of
Documents, and First Requests for Admission, No. 5 Answer at 2, filed December 8, 2017
(Doc. 145-5); and citing UNM’s MSJ ¶ 6, at 4). Dr. Rivero therefore argues that 2006 and after
is the relevant time frame for complaints. See Complaints MIL at 5. Dr. Rivero also maintains
that UNM’s assertion of his “‘long history’ of complaints is overstated.” Complaints MIL at 5
(quoting Joint Status Report at 6, filed January 31, 2017 (Doc. 48)). Dr. Rivero notes that he
worked at UNM for fifteen years before entering private practice, and that “[h]e was never
disciplined or subject to an adverse employment action.” Complaints MIL at 5. Further, Dr.
Rivero notes that UNM promoted him to full professor in 2005 and that UNM provides “no
evidence of complaints that were temporally proximate to [this] promotion.” Complaints MIL at
5. Dr. Rivero posits that, “if there were such complaints and they were so substantial as to give
rise to a required psychiatric examination,” it would be odd for UNM to promote him.
Complaints MIL at 5. Finally, Dr. Rivero clarifies that he does not want the Court to exclude
“evidence of the dispute between Dr. David Pitcher and Dr. Rivero from 2002-2003,” as “this
dispute forms a foundational basis of the motives of Defendant that led to the illegal medical
inquiry and constructive discharge allegations of the FAC.” Complaints MIL at 5-6.

- 90 -

10.

The Complaints MIL Response.

UNM responded on January 12, 2018. See Defendant University of New Mexico Board
of Regents’ Response Brief in Opposition to Plaintiff’s Motion in Limine to Exclude Complaints
Prior to 2006 at 1, filed January 12, 2018 (Doc. 158)(“Complaints MIL Response”). UNM
contends that the complaints made before 2006 are relevant, “because at least one UNM
physician cited these incidents to explain why he opposed Plaintiff’s return to UNM.”
Complaints MIL Response at 3 (citing Complaints Email at 1). UNM also asserts that these
complaints “make it more probable that UNM officials were genuinely concerned about
Plaintiff’s unprofessional behavior, and also make it more probable that UNM had good grounds
for this concern.” Complaints MIL Response at 3. UNM argues that Dr. Rivero’s “lack of
professionalism dates back to 1993, and provides insight into Plaintiff’s pattern of behavior as a
physician.” Complaints MIL Response at 3. UNM notes that, while Dr Rivero “appeared to
have improved his behavior between 1994 and 2003,” he could have made these changes “to
improve his standing at UNM,” which UNM argues is a possibility, because, “once his position
was more secure, Plaintiff began to revert to his old unprofessional ways.” Complaints MIL
Response at 3. UNM maintains that, with the complaints made in 2006, “it was certainly
reasonable for UNM to have concerns that lack of professionalism was Plaintiff’s standard
behavioral pattern.” Complaints MIL Response at 5.
UNM further notes that its concerns with returning Dr. Rivero to full-time employment
also stemmed from his lack of “contrition for his earlier unprofessional behavior.” Complaints

- 91 -

MIL Response at 4 (citing UNM’s MSJ ¶ 31, at 7). UNM believes that Dr. Rivero’s deposition
validated this concern, when Dr. Rivero dismissed a vulgar outburst in the operating room “as
locker room talk” and “trivialized his refusal to be treated for MRSA.”

Complaints MIL

Response at 4 (citing Rivero Depo. 143 at 35:10-18; id. at 26:13-28:25). UNM argues that Dr.
Rivero’s “very recent deposition testimony regarding these older incidents makes it more
probable that Plaintiff was not truly contrite regarding his earlier lack of professionalism,” and,
thus, these incidents are “highly relevant to UNM’s case.” Complaints MIL Response at 4.
UNM posits that, because accreditation services for hospitals and hospitals in general recently
started taking professionalism issues more seriously, the actions it took after JCAHO’s Sentinel
Alert in 2008 should “be viewed in light of ch[an]ges in attitude regarding professionalism.”
Complaints MIL Response at 5. According to UNM, this change in attitude means “it would
make sense for UNM to revisit Plaintiff’s history when he was trying to return to full-time
employment,” making the older complaints relevant. Complaints MIL Response at 5.
Accordingly, UNM argues that “the probative value of the older complaints . . . is not
substantially outweighed by any danger of unfair prejudice.” Complaints MIL Response at 5.
UNM underscores that, for the Court to exclude the older complaints, the danger of unfair
prejudice “must substantially outweigh the” probative value of the evidence. Complaints MIL
Response at 6 (emphasis in Complaints MIL Response). UNM also notes the Court’s conclusion
that exclusion “is an extraordinary remedy and should be used sparingly,” such as where “the
evidence . . . [has] an undue tendency to suggest decision on an improper basis, commonly,

- 92 -

though not necessarily, an emotional one.” Complaints MIL Response at 6 (internal quotation
marks omitted)(quoting SEC v. Goldstone, 233 F. Supp. 3d 1149, 1166 (D.N.M.
2017)(Browning, J.)). UNM contends that this standard is not met here, and that Dr. Rivero’s
“pattern of unprofessional behavior is to be considered as a whole,” meaning that “any evidence
that exemplifies this behavioral pattern, even if it is fairly old evidence, suggests decision on a
proper basis.” Complaints MIL Response at 6. Finally, UNM asserts that all the complaints
Dr. Rivero seeks to exclude are relevant to his unprofessionalism in his practice of medicine and
to his lack of contrition. See Complaints MIL Response at 6-7. According to UNM, for the
evidence to mislead the jury or confuse the issues, it would have to be tangentially related to the
facts at issue, which UNM asserts is not the case here. See Complaints MIL Response at 7
(citing SEC v. Goldstone, 233 F. Supp. 3d at 1168). UNM thus requests that the Court not
exclude the older complaints. See Complaints MIL Response at 7.
11.

The Complaints MIL Reply.

Dr. Rivero replied. See Reply in Support of Motion in Limine to Exclude Complaints
Against Plaintiff Prior to 2006 at 1, filed February 7, 2018 (Doc. 174)(“Complaints MIL
Reply”). Dr. Rivero asserts that the Complaints MIL Response “fails to provide any persuasive
reason why complaints dating back to 1993 against Dr. Rivero should not be excluded as
evidence at trial.” Complaints MIL Reply at 1. According to Dr. Rivero, the Complaints Email
provides a list of complaints which Dr. Bailey did not investigate and which are unsubstantiated,
thus never finding him at fault, tempering any of “UNM’s so-called ‘genuine concern’ about the

- 93 -

complaints.” Complaints MIL Reply at 2 (quoting Complaints MIL Response at 3). Dr. Rivero
asserts that the complaints from 2003 are “dubious” and, “as unsubstantiated complaints, are
themselves prejudicial.” Complaints MIL Reply at 2. Dr. Rivero argues that the probative
values of the complaints dating to 1993 “is questionable, especially in light of the admitted
‘mov[ing] beyond these early difficulties.’” Complaints MIL Reply at 2 (quoting UNM’s MSJ
¶ 6, at 4). Dr. Rivero states that “UNM must pick a position: either Dr. Rivero’s conduct
improved or it did not,” and that his conduct as a physician did not include only complaints, but
promotions “with glowing recommendations from colleagues.” Complaints MIL Reply at 2
(citing Rivero’s MSJ ¶ 2, at 2).
According to Dr. Rivero, because UNM states that Dr Rivero’s conduct improved, it is
judicially estopped from asserting the opposite, and, therefore, “at the very least, any and all
complaints prior to 2003 are precluded from introduction.”

Complaints MIL Reply at 3.

Further, Dr. Rivero posits that, because his “promotion to full professor in 2005 was
unencumbered by any complaints, and Dr. Rivero was never [a] recipient of any discipline at any
time, the uninvestigated and unsubstantiated complaints prior to 2006 should be excluded.”
Complaints MIL Reply at 3. Dr. Rivero asserts that these complaints have a “frail probative
value” and “will serve to merely prejudice the jury against Dr. Rivero.” Complaints MIL Reply
at 3. Dr. Rivero contends that UNM is preposterous in asserting that he tried to behave until his
position was more secure and notes that there is no evidence supporting this assertion. See
Complaints MIL Reply at 3. Dr. Rivero posits that this assertion is “aimed at merely painting

- 94 -

Dr. Rivero in a negative light as a habitual, deceitful, career-long problem, and to prejudice the
jury against him.” Complaints MIL Reply at 4. Dr. Rivero argues that it is more likely that he
was never unprofessional and that UNM is exaggerating to defend its psychiatric evaluation
requirement. See Complaints MIL Reply at 3. Finally, Dr. Rivero notes that UNM referenced
no policy when it imposed the Addendum, so its argument regarding professionalism polices is
merely “lip service.” Complaints MIL Reply at 4 (citing Schenck Depo. 191 at 175:11-24).
12.

The Psychological MIL.

Dr. Rivero filed the Psychological MIL on December 8, 2017. See Psychological MIL at
1. Dr. Rivero requests that the Court prohibit UNM from using the term “psychological” instead
of the term “psychiatric” at trial to describe the Addendum’s medical examination requirement,
because he anticipates that UNM will attempt to use the term “psychological,” which “is
misleading and falsely attempts to mollify the harsh and overreaching attempt by UNM[] to force
an invasive medical examination on Dr. Rivero as a condition of increased full-time equivalent
(‘FTE’) in employment.”

Psychological MIL at 1.

Dr. Rivero posits that, central to the

conditions of his return to a 0.75 FTE or higher employment with UNM is the Addendum’s
“four-part ‘psychiatric evaluation’” requirement. Psychological MIL at 2 (quoting Addendum
¶ 2, at 2). Dr. Rivero asserts that, in repeatedly referring to this requirement as a “psychological
examination,” UNM is “attempt[ing] to redefine that type of examination that [it] sought to
impose on Dr. Rivero.” Psychological MIL at 2 (citing Joint Status Report at 7-8). Dr. Rivero

- 95 -

notes that the Addendum uses the word “psychiatric” fifteen times in paragraph 2, but never uses
the word “psychological.” Psychological MIL at 4.
Dr. Rivero argues that, with respect to the Addendum’s requirement, “a ‘psychiatric’
evaluation can only be performed by a duly licensed medical doctor (M.D.) or doctor of
osteopathy (D.O.) specializing in the field of psychiatry with the corresponding ability [to]
prescribe drugs and other psychiatric interventions.” Psychological MIL at 4. According to Dr.
Rivero, “[a] ‘psychological’ evaluation, on the other hand, may be performed by individuals
without the extent of medical training and experience of duly licensed M.D.s or D.O.s.”
Psychological MIL at 4. Dr. Rivero contends that “the term ‘psychiatric’ has a more serious
connotation,” because “[i]t implies a heightened level of urgency and severity, one that gives rise
to an implication (and rightly so) of medical intervention.” Psychological MIL at 4. Dr. Rivero
asserts that the term “‘psychological,’ however, implies a softer and less severe approach.”
Psychological MIL at 4-5. As UNM is a hospital, Dr. Rivero argues that the difference in terms
“would not be lost on the Addendum’s drafters, and Defendant has no defense of an honest
mistake.” Psychological MIL at 5. Dr. Rivero requests that the Court preclude use of the word
“psychological” in reference to the Addendum’s requirements, as he asserts that to allow UNM
to use this word would “confuse and mislead [the jury] into believing that words do not actually
say what they say.” Psychological MIL at 5.

- 96 -

13.

The Psychological MIL Response.

UNM responded on January 12, 2018. See Defendant University of New Mexico Board
of Regents’ Response Brief in Opposition to Plaintiff’s Motion in Limine to Prohibit and
Exclude Use of the Term “Psychological” in Reference to “Psychiatric” Evaluations at 1, filed
January 12, 2018 (Doc. 157)(“Psychological MIL Response”). UNM asserts that its use of the
term “psychological” to refer to the evaluation requirement at trial is appropriate, because “the
connotation of the term ‘psychological’ is more relevant to UNM’s defense, that Plaintiff was
not regarded as disabled, and is a more accurate description of UNM’s intentions when it
required Plaintiff to submit to the evaluations at issue as a condition of increased hours of
employment.” Psychological MIL Response at 1-2. Further, UNM argues that “psychiatry and
psychology are, in actuality, very similar,” with the main difference being that psychiatrists can
prescribe drugs. Psychological MIL Response at 2. UNM also notes an internet source which
states that, while psychiatrists are members of a medical specialty, they “have more in common
with clinical psychologists than with other physicians.” Psychological MIL Response at 2
(internal quotation marks omitted)(quoting Clinical Psychology, Encyclopedia.com at 1 (dated
2008), filed January 12, 2018 (Doc. 157-1)). UNM contends that the Addendum does not
“indicate[] that UNM believed that Plaintiff needed drugs.” Psychological MIL Response at 2-3.
UNM argues that it “can be forgiven for using imprecise language in the Addendum,” because
the two professions are similar with almost interchangeable terminology, and “well settled
precedent stat[es] that ‘the use (or misuse) of mental health terminology’ generally does not

- 97 -

establish that the employer in question believed that the employee suffered from an impairment.”
Psychological MIL Response at 3 (quoting Lanman v. Johnson Cty., 393 F.3d at 1157).
UNM then argues that, while the meanings of the terms “psychology” and “psychiatric”
are similar, “the connotations are different enough that UNM should be allowed to use the term
‘psychological’ rather than ‘psychiatric.’” Psychological MIL Response at 3. UNM posits that
the connotation around “psychological” is more natural, while “psychiatric” implies a severe
mental impairment. Psychological MIL Response at 3. UNM states that, because it wants to
show it did not regard Dr. Rivero as being impaired and merely wanted to correct his
unprofessional behavior, using “psychological” to describe the evaluation requirement is relevant
to UNM’s defense to the constructive discharge claim. See Psychological MIL Response at 3.
Finally, UNM contends that “the probative value of the use of the term ‘psychological’ is
not substantially outweighed by any danger of unfair prejudice.” Psychological MIL Response
at 3. UNM notes the Court’s decision in SEC v. Goldstone that evidence is unfairly prejudicial
where it tends “to suggest decision on an improper basis.” Psychological MIL Response at 4
(quoting SEC v. Goldstone, 233 F. Supp. 3d at 1166).

UNM contends that “the term

‘psychiatric’ . . . is more likely to trigger an emotional response among fact-finders” than the
term “psychological,” so UNM’s use of “psychological” “should not be excluded on the grounds
of prejudice.” Psychological MIL Response at 4.

- 98 -

14.

The Psychological MIL Reply.

Dr. Rivero replies. See Reply in Support of Motion in Limine to Prohibit and Exclude
Use of the Term “Psychological” in Reference to “Psychiatric” Evaluations at 1, filed February
7, 2018 (Doc. 173)(“Psychological MIL Reply”). Dr. Rivero first posits that the Psychological
MIL Response “provides no genuine, persuasive reason to permit [UNM] to use the term
‘psychological’ in reference to the illegal medical evaluations” and actually “support[s]
Dr. Rivero’s motion to exclude its use as unfairly prejudicial.” Psychological MIL Reply at 1.
Dr. Rivero asks the Court to find as an admission UNM’s request to use the term
“psychological” rather than “psychiatric,” because the term “‘psychiatric’ implies a ‘severe
mental impairment.’” Psychological MIL Reply at 2 (quoting Psychological MIL Response at
3). See id. at 2 n.1 (contending that “[t]his knowing implication indicates the overbreadth and
illegality of the Addendum”). Dr. Rivero asserts that any prejudice to UNM by using the term
“psychiatric” is “wrought by its own words,” because “[t]he Addendum says what it says -‘psychiatric evaluations’ -- and Defendant should not be able to introduce a softer term merely
because it regrets how it drafted the document.”

Psychological MIL Reply at 2 (quoting

Addendum ¶ 2, at 2). Dr. Rivero asserts that UNM is attempting to mitigate the emotions from
“the implication of the word that UNM chose to employ.” Psychological MIL Reply at 3.
Dr. Rivero notes that UNM only brought up the impreciseness of the Addendum’s
language in its Psychological MIL Response. See Psychological MIL Reply at 4. According to
Dr. Rivero, this argument is “meritless given UNM’s position as a singularly sophisticated

- 99 -

institution.”

Psychological MIL Reply at 3.

Further, Dr. Rivero notes the Addendum’s

signatures, ostensibly showing that a team of licensed attorneys, physicians, and medical
professionals drafted the Addendum. See Psychological MIL Reply at 4 (citing Addendum at 6).
Accordingly, Dr. Rivero asserts that Lanman v. Johnson County is distinguishable, because the
misuse of language there “was the informal bandying of dubiously good-natured jibes” and “not
the formalized contractual language” here. Psychological MIL Reply at 4 (citing Lanman v.
Johnson Cty., 393 F.3d at 1157).
As to UNM’s assertion that the term “psychological” is useful to its defense, Dr. Rivero
asserts that UNM is, in effect, “ask[ing] the Court to permit it to create facts out of thin air to suit
its defense and to evade the liability that comes with the facts that actually do exist.”
Psychological MIL Reply at 4 (emphasis in Psychological MIL Reply). Dr. Rivero discards
UNM’s assertion that psychiatry and psychology are similar medically, because UNM bases this
assertion on “a general online reference.” Psychological MIL Reply at 4. Dr. Rivero posits that
UNM makes this assertion to excuse the Addendum’s sloppy language, but that “a review of the
Addendum on its face betrays the rigor, severity, and precision with which its language was
chosen.” Psychological MIL Reply at 5. See id. at 4. Finally, Dr. Rivero argues that he “will be
unfairly prejudiced by UNM’s use of the term ‘psychological’ because it is not a word that is
present anywhere on the Addendum and unduly mitigates the actual severity of the face of the
Addendum and the intent of UNM to impose an illegal medical inquiry upon him.”
Psychological MIL Reply at 5.

- 100 -

15.

The Second Disclosure Letter.

On June 22, 2018, the Court sent another disclosure letter to the parties.96 See Letter
from the Court to Eric D. Norvell, Alfred A. Park, and Lawrence M. Marcus (dated June 22,
2018), filed June 22, 2018 (Doc. 200)(“Second Disclosure Letter”). The Second Disclosure
Letter’s body states in full:
I want to bring one matter to your attention. I have, with my law clerks,
reviewed the Judicial Code of Conduct and do not believe this matter requires me
to recuse myself. I want everyone, however, to be fully informed about and
comfortable with my participation in the case.
Last fall, and in several prior years, I have co-taught a 2-unit course on
religious liberty at the University of New Mexico School of Law. I think this is
the fifth time I have taught the class. I have waived pay on three occasions. I am
uncertain how the University of New Mexico School of Law has treated that
waiver, but it may have considered it a donation to the school or the UNM
Foundation. The last two times I taught the class, I have asked the University of
New Mexico School of Law to use the money to pay a law student to help me
with a law review article that I am writing, and it has complied with that request.
In light of my role in teaching this class at the University of New Mexico School
of Law, I believe I can remain fair and impartial to all parties in this case.
I have also known different University of New Mexico Regents over the
years. As to people who have served as Regents since this case was filed on
November 1, 2017, to the present, I know Robert M. Doughty III, President. He
is a lawyer, and a few years ago (before this case was filed), he and his wife
attended a dinner party at our home. I have not been in his home, and I do not
otherwise socialize with him. It has been a while since I saw him. I do not have a

96

As the Court proposed to hear argument on the dispositive motions on June 26, 2018,
see Amended Notice of Hearing, filed May 10, 2018 (Doc. 199), the Court asked its staff if it had
sent a disclosure letter in this case, and the staff did not see on the docket that the Court had sent
a disclosure letter. The Court then prepared a letter and sent it. That the Court forgot the first
letter and did not see it on the docket explains the duplicative, second letter, and why the two
letters are similar but not exactly the same.

- 101 -

substantially different relationship with him than I do with other members of the
bar. I think I can remain fair and impartial to all parties.
Garrett Adcock is a student at the University of New Mexico School of
Law. He previously externed for me.[97] I have not seen him recently. He invited
me by mail to his graduation, which I attended, but I was planning to go anyway.
I do not believe I saw him or got to speak with him. Again, I believe that I can be
fair and impartial to all parties.
I might have met Michael Brasher at a lunch before I became judge; I
became a judge in 2003. I do not otherwise socialize with Mr. Brasher. Again, I
believe that I can be fair and impartial to all parties.
If regents before November 1, 2017, are relevant to this issue, I would be
glad to make disclosures regarding them. I believe, however, that I can remain
fair and impartial to all parties.
I believe that I can be fair and impartial. I see no reason to recuse myself.
If, however, anyone has any questions or concerns, call my Courtroom Deputy
Clerk, Carol Bevel (505-348-2289) and we can have a telephonic hearing. I have
instructed Ms. Bevel not to tell me who calls.
Second Disclosure Letter at 1-2.
Nobody called Ms. Bevel about the Second Disclosure Letter. Further, Ms. Bevel made
courtesy calls to counsel for both parties on June 25, 2018, to ensure they had received the
Second Disclosure Letter and to ask if they had any objections. Neither party raised any
objections. Ms. Bevel recalls talking to Dr. Rivero’s counsel, who informed her that he had
talked to his client and that Dr. Rivero did not have any objection to the Court’s presiding over
the case.

97

Mr. Adcock externed for the Court in the summer of 2017.

- 102 -

16.

The June 26 Hearing.

On June 26, 2018, the Court held a hearing on UNM’s MSJ, Rivero’s MSJ, the
Complaints MIL, and the Psychological MIL. See Clerk’s Minutes at 1, filed June 26, 2018
(Doc. 201)(“Clerk’s Minutes”). The parties also discussed pretrial conference and trial settings.
See Transcript of Motion Proceedings at 76:15-16 (Court)(taken June 26, 2018), filed July 17,
2018 (Doc. 202)(“June 26 Tr.”). This was the first time the parties appeared before the Court.
See June 26 Tr. at 77:11-13 (Court).
a.

Broad Argument Regarding UNM’s MSJ.

The hearing began with argument on UNM’s MSJ. See June 26 Tr. at 3:1-2 (Court).
UNM admitted that Dr. Rivero is “a technically proficient surgeon, but [noted that] he
had . . . some serious issues with his professionalism and his interaction with patients, nurses,
and other members of the medical staff.” June 26 Tr. at 3:12-16 (Marcus). UNM contended that
Dr. Rivero moved to Oklahoma and maintained a 0.05 FTE at UNM when these professionalism
issues became more severe. See June 26 Tr. at 3:17-24 (Marcus). UNM stated that, when Dr.
Rivero wanted to return to full-time employment with UNM, his “professionalism became a
much bigger problem” and caused “many members of the UNM medical staff to have serious
reservations about allowing him to come back full-time.” June 26 Tr. at 4:2-3, 8-10 (Marcus).
UNM said that Dr. Schenck and Dr. Rivero reached a compromise to address the professionalism
issues and allow Dr. Rivero to return full time -- Dr. Rivero would attend four counseling
sessions, and so Dr. Rivero contacted a UNM psychiatrist. See June 26 Tr. at 4:13-23 (Marcus).

- 103 -

UNM argued that the Addendum memorializes this compromise, see June 26 Tr. at 4:23-25
(Marcus), but that Dr. Rivero refused to sign the Addendum, because he believed its psychiatric
evaluation requirement was an illegal medical inquiry, see June 26 Tr. at 5:3-4 (Marcus). UNM
contended that, to prove this illegality, Dr. Rivero attempted to get his records while still
working at UNM for three years and then, only after receiving all his records, did Dr. Rivero quit
and claim constructive discharge, “despite the fact that he had been working at UNM for three
years with no problems.” June 26 Tr. at 5:13-14 (Marcus). See id. at 5:6-14 (Marcus).
UNM then turned to the deficiencies in Dr. Rivero’s lawsuit, first arguing that his claim
for an illegal medical inquiry “is barred by the statute of limitations[,] because he received the
[A]ddendum . . . in 2011, and [he] did not bring the litigation until 2016.” June 26 Tr. at 6:8-9,
11-12 (Marcus). Further, UNM asserted that the medical inquiry “was job related and consistent
with business necessity,” because it “was an attempt to have plaintiff resolve his issues with
professionalism,” and therefore not illegal. June 26 Tr. at 6:15-19 (Marcus). As to Dr. Rivero’s
claim of constructive discharge, UNM maintained that it never regarded Dr. Rivero as disabled,
which is “a prerequisite for any claim for constructive discharge under the Rehabilitation Act.”
June 26 Tr. at 6:22-24 (Marcus). See id. at 6:20-22 (Marcus). UNM also argued that Dr. Rivero
“was never constructively discharged,” because “there was no harassment of any sort,” “[h]is
work continued to be valued,” and “no one ever gave him any problems.” June 26 Tr. at 7:5-10
(Marcus). UNM thus asserted that his working conditions were not so intolerable that he could
not bear to attend work anymore. See June 26 Tr. at 7:10-14 (Marcus).

- 104 -

In response, Dr. Rivero contended that “his relationships with colleagues and his work
was unparalleled as a physician,” that he was “one of the best [orthopaedic surgeons] in the
southwest,” and so clearly he was not “a problem physician” as UNM contends. June 26 Tr. at
8:3, 6-10 (Norvell).98 Dr. Rivero asserted that he presented the Court reliable evidence “that he
was not, in fact, suffering from professionalism issues.” June 26 Tr. at 8:13-15 (Norvell). Dr.
Rivero maintained that his agreement with Dr. Schenck to attend four counseling sessions “was
starkly different from” the Addendum, which required psychiatric evaluations. June 26 Tr. at
8:25-9:1 (Norvell). See id. at 8:19-9:2 (Norvell). Dr. Rivero noted UNM’s contention in the
Psychological MIL Response that the term “psychiatric” “indicate[s] a severe mental
impairment.” June 26 Tr. at 9:4 (Norvell). See id. at 9:1-4 (Norvell). Dr. Rivero asserted that
the Addendum shocked him, because “it was so broad and so invasive and without any
limitation,” June 26 Tr. at 9:14 (Norvell), and because “[i]t was not tailored toward any aspect of
counseling that the parties had agreed upon . . . to improve patient interactions,” June 26 Tr. at
9:7-9 (Norvell). See id. at 9:5-19 (Norvell). Dr. Rivero maintained that he sought to review his
credentialing file to determine the basis for the Addendum’s onerous requirements. See June 26
Tr. at 9:20-24 (Norvell). Dr. Rivero asserted that, as a result, UNM precluded his efforts to
review his file, Dr. Schenck withdrew the Addendum, and Dr. Rivero had to file an action in
state court to access his file. See June 26 Tr. at 9:25-10:8 (Norvell). Dr. Rivero argued that,
98

The June 26 Tr. erroneously labels the speaker of this portion of the transcript,
specifically 7:25-13:16, as Lawrence Marcus, UNM’s counsel. It is clear from the context that
the true speaker is Eric Norvell, Dr. Rivero’s counsel, because the argument is for Dr. Rivero’s
side rather than for UNM’s.

- 105 -

when Dr. Trotter and Dr. Bailey certified that all documents had been produced, Dr. Rivero
realized that UNM had no basis for the Addendum’s requirement and his claim for the illegal
medical inquiry accrued. See June 26 Tr. at 10:9-17 (Norvell). Dr. Rivero stated that “[h]e left
UNM in January, never returned, and tendered his formal resignation, constructive discharge in
May of 2014.” June 26 Tr. at 18-20 (Norvell). Dr. Rivero asserted that “[n]othing has changed”
since Magistrate Judge Lynch determined that his claims were timely filed, so law of the case
requires that Magistrate Judge Lynch’s holding stand. June 26 Tr. at 11:1 (Norvell). See id. at
10:22-11:7 (Norvell).
Dr. Rivero argued that “there is a question of fact as to” whether UNM regarded him as
disabled, and that the Addendum’s overbreadth precludes the examination from being a proper
“fitness for duty” examination. June 26 Tr. at 11:17, 22-23 (Norvell). See id. at 11:16-24
(Norvell). Further, Dr. Rivero noted Dr. Schenck’s statements “that stress was a consideration”
and “that Dr. Rivero’s reaction to stress was a disabling condition that would make it more
difficult for him to succeed in returning to UNM.” June 26 Tr. at 7-11 (Norvell). As to
unbearable working conditions, Dr. Rivero maintained that they began with a dispute with
Dr. Pitcher in 2003 and continued, because of “administrative vendettas” and Dr. Schenck’s flipflopping in advocating for Dr. Rivero. June 26 Tr. at 13:4-5 (Norvell). See id. at 12:23-13:8
(Norvell).

Dr. Rivero stated that UNM’s withholding of his file and “frivolous defenses

submitted in litigation” also added to the unbearable working conditions. June 26 Tr. at 13:10
(Norvell).

See id. at 13:9-14 (Norvell).

Dr. Rivero asserted that the facts regarding his

- 106 -

professionalism issues are in dispute and not clear, because UNM provides unsubstantiated,
uninvestigated complaints to support the Addendum’s requirements. See June 26 Tr. at 17:5-18
(Norvell). Dr. Rivero also noted that “there is really no clarity as to what professionalism
means.” June 26 Tr. at 18:19-20 (Norvell). Dr. Rivero argued that “there are questions of fact as
to whether UNM regarded Dr. Rivero as disabled,” facts which the jury should determine. June
26 Tr. at 18:3-4 (Norvell). See id. at 18:2-18 (Norvell). Dr. Rivero maintained that “UNM can
present no evidence that [it] ever did, in fact, find any deterioration of his essential job duties,”
and that “it’s a question of fact whether the professionalism claim constitutes an essential job
function.” June 26 Tr. at 19:4-6, 7-9 (Norvell). Dr. Rivero argued that “the facts of the extent of
the overbreadth of the [A]ddendum is something that is certainly preserved for trial,
because . . . of the legal requirement that it be more narrow to befit the particulars of an approach
to . . . improve professionalism.” June 26 Tr. at 19:11-19 (Norvell). As to the “issue of fact that
precludes the Court from deciding the legal issues that are in” UNM’s MSJ, June 26 Tr. at 20:8-9
(Court), Dr. Rivero responded that UNM took complaints “at face value,” June 26 Tr. at 21:3
(Norvell), so “how can there be a truly sensible determination of unprofessional action, if all the
complaints that were made were unsubstantiated?” June 26 Tr. at 21:5-8 (Norvell).
b.

Argument Regarding the Illegal-Medical-Inquiry Claim.

UNM then underscored its statute-of-limitations argument for the alleged illegal medical
inquiry, noting that Dr. Rivero received the Addendum in March, 2011, and that Dr. Rivero
“testified at his deposition that at about that time he believed very strongly that his rights were

- 107 -

violated.” June 26 Tr. at 22:4-6 (Marcus). See id. at 21:25-22:6 (Marcus). UNM argued that, at
that time, Dr. Rivero “had a complete and present cause of action,” June 26 Tr. at 22:7-8
(Marcus), because “[h]e had everything needed to file the complaint regarding the allegedly
medical inquiry,” June 26 Tr. at 22:10-12 (Marcus). Yet, UNM stated, Dr. Rivero “did not file
the complaint for the illegal medical inquiry until 2016, . . . more than five years after he
received the [A]ddendum.” June 26 Tr. at 22:13-16 (Marcus). UNM maintained that Baker v.
Board of Regents of the State of Kansas and other cases make clear that “the cause of action
accrues when the action takes place.” June 26 Tr. at 22:18-19 (Marcus). See id. at 22:16-19
(Marcus). UNM asserted that, contrary to Magistrate Judge Lynch’s ruling, Dr. Rivero did not
need his entire credentialing file for the cause of action to accrue. See June 26 Tr. at 23:15-18
(Marcus). UNM posited that Magistrate Judge Lynch made an error in holding that Dr. Rivero
did not have a complete and present cause of action until he received his full employment file,
and that this error should be fixed. See June 26 Tr. at 24:16-25 (Marcus). UNM maintained that
the Court can revisit Magistrate Judge Lynch’s decision, and that Dr. Rivero “has misinterpreted
the Law of the Case Doctrine.” June 26 Tr. at 23:25 (Marcus). See id. at 23:19-23 (Marcus).
In response, Dr. Rivero argued that Magistrate Judge Lynch considered the statute-oflimitation arguments which UNM makes in the MTD Order, that discovery produced no new
facts to change Magistrate Judge Lynch’s decision, and that Green v. Brennan clearly supports
this decision. See June 26 Tr. at 25:25-26:14 (Norvell). According to Dr. Rivero, the facts have
not changed, because discovery has confirmed what Magistrate Judge Lynch assumed as true.

- 108 -

See June 26 Tr. at 26:24-27:2 (Norvell). Dr. Rivero argued that, as Magistrate Judge Lynch
determined, “Dr. Rivero did not have a complete picture of the reason for the [A]ddendum” until
UNM certified that it produced his entire record, June 26 Tr. at 27:2-4 (Norvell), and although he
“may have believed there was a cause of action [earlier], he did not know,” June 26 Tr. at 27:1011 (Norvell). See June 26 Tr. at 27:2-13 (Norvell). The Court questioned why the trigger for the
statute of limitations did not occur much earlier when the harm occurred with the Addendum’s
presentment. See June 26 Tr. at 27:14-25 (Court). Dr. Rivero responded that the credentialing
file which he sought would contain the basis for the Addendum and that, when he sought it,
UNM refused access and precluded him from determining this basis. See June 26 Tr. at 28:1-18
(Norvell). Dr. Rivero contended that these documents confirmed a factual basis “that there was
no underlying rationale behind presenting the psychiatric examination.” June 26 Tr. at 29:1-3
(Norvell). See id. at 28:19-29:3 (Norvell).
UNM responded that Dr. Rivero “could have filed suit back in 2011, or early
2012 . . . [a]nd then he could have engaged in discovery to get his file.” June 26 Tr. at 30:3-5
(Marcus). UNM asserted that plaintiffs file suits “upon information and belief” “all the time.”
June 26 Tr. at 30:24, 31:1 (Marcus). UNM maintained that all Dr. Rivero needed to bring suit
was the belief “that his rights were violated” and noted that he had such a belief when he
received the Addendum. June 26 Tr. at 31:12-13 (Marcus). See id. at 31:9-14 (Marcus). UNM
asserted that it did nothing to prevent Dr. Rivero “from bringing the litigation within the three
year statute of limitation[, a]nd, therefore, there is no tolling.” June 26 Tr. at 31:15-17 (Marcus).

- 109 -

As to the merits of Dr. Rivero’s illegal medical inquiry claim, UNM argued that “the
medical inquiry was clearly job related and consistent with business necessity,” and, therefore,
legal. June 26 Tr. at 32:22-23 (Marcus). See id. at 32:18-23 (Marcus). UNM asserted that
Lanman v. Johnson County stands for the proposition that “singling out a person for a psychiatric
evaluation does not necessarily mean that the employer deems the person or regards the person
as disabled,” June 26 Tr. at 34:11-14 (Marcus), and allows employers to determine the cause of
an employee’s troubling behavior, especially where the employee cares for others, see June 26
Tr. at 35:1-5. UNM posited that physicians are “responsible for the care and safety of others,” so
an employer may single out a physician whose behavior is troubling without it meaning the
physician suffers from a psychiatric disorder. June 26 Tr. at 35:6-7 (Marcus). See id. at 35:5-12
(Marcus). UNM noted that all the complaints filed against Dr. Rivero, although there may not be
proof for each complaint, in the aggregate paints a “troubling picture.” June 26 Tr. at 35:25
(Marcus). See id. at 35:15-36:20 (Marcus). UNM asserted that “a patient did come away from
[an] interaction with Dr. Rivero thinking that he was being compared with a monkey. Whether
that was Dr. Rivero’s intention or not,” June 26 Tr. at 36:21-24 (Marcus), that statement shows
Dr. Rivero “really needs to work on his skills with interacting with his patients,” June 26 Tr. at
37:2-3 (Marcus). Further, UNM maintained that, “in more recent years, medical accreditation
organizations have added a renewed focus on professionalism.”
(Marcus).

June 26 Tr. at 37:11-13

Accordingly, UNM asserted that the Addendum’s requirement “was clearly job

related, consistent with business necessity, consistent with UNM’s continued accreditation,

- 110 -

frankly,” because UNM “couldn’t bring [Dr. Rivero] back if he continued to act”
unprofessionally. June 26 Tr. at 38:1-5 (Marcus).
Dr. Rivero responded that the evidence does not support UNM’s assertion that
Dr. Rivero’s professionalism issues warranted the imposition of four psychiatric evaluations,
because the complaints were unsubstantiated or because Dr. Rivero was not found at fault. See
June 26 Tr. at 38:11-39:13 (Norvell). As to his interactions with Barela, Dr. Rivero argued that
“[h]e had to defend his reputation and his position,” because there was no physician advocate to
do so. June 26 Tr. at 39:17-18 (Norvell). See id. at 39:14-18 (Norvell). Also, as to the patient
who believed Dr. Rivero likened him to a monkey, Dr. Rivero contended that “a resident on duty
signed a letter that said there was no unprofessionalism on Dr. Rivero’s part.” June 26 Tr. at
40:8-10 (Norvell). Dr. Rivero further argued that, for the examination requirement to be proper,
“there has to be a particularized approach, we call it possibly narrowly tailored approach, and a
showing that Dr. Rivero was unable to perform his essential job functions.” June 26 Tr. at
39:21-24 (Norvell). Dr. Rivero asserted that UNM has made no showing that he was unable to
perform essential job functions or that UNM’s accreditation with JCAHO was jeopardized. See
June 26 Tr. at 39:24-40:2 (Norvell). Accordingly, Dr. Rivero argued that the Addendum is
“oppressive” and “not designed to address the so-called issues of professionalism that UNM is
here stating that it is meant to.” June 26 Tr. at 40:19-22 (Norvell). Dr. Rivero maintained that
he never presented a violent threat, and operated without complaint both in Oklahoma and at
UNM from 2006 until 2014, so there is no basis to single out him with the illegal, oppressive

- 111 -

Addendum requirements. See June 26 Tr. at 41:4-19 (Norvell). Dr. Rivero asked the Court
where the line is with respect to mental examinations, because it is not good policy to allow “any
sort of mental examination, no matter how invasive or onerous, to force employees to submit to
whatever employment practices they have.” June 26 Tr. at 42:8-11 (Norvell). See id. at 42:4-12
(Norvell).
The Court questioned whether the Albuquerque Police Department (“APD”) could
require an officer, who received a number of citizen complaints, to undergo psychological testing
four times a year without regarding that officer as disabled. See June 26 Tr. at 42:17-43:4
(Court). Dr. Rivero responded that officers, like physicians, interact with many people on a
yearly basis, but underscored that “[i]t would behoove and be incumbent upon APD to
investigate the veracity of those complaints before presuming that someone is necessarily ripe
for some fitness for duty exam, much less some psychiatric examination.” June 26 Tr. at 43:1418 (Norvell). The Court clarified that, based on Dr. Rivero’s response, “there is nothing wrong,
per se, with picking out one police officer and somehow getting to the point of requiring that one
police officer to be examined -- psychological examination three or four times a year.” June 26
Tr. at 44:9-13 (Court). Dr. Rivero did not want to “agree with the term ‘single one out,’”
because, in his view, “there would have to be a real legal basis” for the requirement. June 26 Tr.
at 44:17-19 (Norvell). The Court asked what the test would be, see June 26 Tr. at 44:21-23
(Court), and Dr. Rivero responded that he “believe[s] it would be a threat to the public, as police
officers are servants of the public and interact with the public, and wield some level of real

- 112 -

authority and power,” June 26 Tr. at 44:25-45:3 (Norvell), or a “showing that the essential job
functions are not being met,” June 26 Tr. at 45:10-11 (Norvell). The Court then asked what the
standard is for a physician, and for judging “whether a condition that’s being imposed is job
related and consistent with the job.” June 26 Tr. at 45:24-25 (Court). See id. at 45:22-25
(Court). Dr. Rivero stated that “[t]he standard is whether Dr. Rivero has shown indications of
the inability to perform essential job functions or presents a direct threat,” June 26 Tr. at 46:1-4
(Norvell), and asserted that UNM has not shown evidence of either problem, see June 26 Tr. at
46:11-15 (Norvell).
UNM provided the last word on the psychiatric examination requirement, arguing that it
is clear that Dr. Rivero’s “professionalism was an impediment to his performing part of his job
duties . . . . [H]e was refusing to see patients in the general ortho clinic[, a]nd then he said he
wasn’t going to speak Spanish to them.” June 26 Tr. at 47:14-18 (Marcus). UNM posited that
Dr. Rivero is fluent in Spanish and that his refusal to speak the language is not good for UNM’s
standing with the United States Department of Health and Human Services’ Office for Civil
Rights when UNM is accused of not providing translators.

See June 26 Tr. at 47:19-23

(Marcus). UNM asserted that the JCAHO put down its foot and did not want physicians to get
away with being difficult any longer, so, to keep its accreditation, UNM had to do something
with Dr. Rivero. See June 26 Tr. at 47:24-48:11 (Marcus). Regarding Dr. Rivero’s interactions
with Barela, UNM argued that Dr. Rivero “threatened Mr. Barela’s livelihood” and
“overreacted,” because “[h]e gets one complaint from the general ortho clinic” and says he will

- 113 -

not talk to those patients anymore. June 26 Tr. at 48:17-18, 21-22 (Marcus). See id. at 48:17-25
(Marcus).

UNM contended that Dr. Rivero is an excellent surgeon, but underscored the

importance of being able to professionally interact with patients and staff. See June 26 Tr. at
49:2-15 (Marcus). UNM maintained that the emails which Dr. Rivero sent Barela are undisputed
and that, instead of trying to clear up the patients’ complaints, Dr. Rivero blames the messenger.
See June 26 Tr. at 49:16-50:1 (Marcus). UNM noted that, in Lanman v. Johnson County, the
employee did not behave in a threatening manner, but merely acted “in a weird manner” and the
employer required a fitness for duty exam. June 26 Tr. at 50:7 (Marcus). See id. at 50:2-13
(Marcus). UNM also noted that, in Owusu-Ansah v. Coca-Cola Co., the employee “banged his
hand on a table and said someone was going to pay,” but he had no prior incidents showing a
propensity for violence, and he had to complete a fitness for duty examination. June 26 Tr. at
50:17-18 (Marcus). See id. at 50:14-25 (Marcus). UNM asserted that this case is worse than
Lanman v. Johnson County or Owusu-Ansah v. Coca-Cola Co., because “you have a surgeon
responsible for people’s lives showing this type of difficulty with his interactions,” June 26 Tr. at
51:1-3 (Marcus), who “has a whole history of making things difficult, of having problems with
his professional interactions,” June 26 Tr. at 51:14-16 (Marcus). See June 26 Tr. at 51:1-16
(Marcus). UNM conceded that it did not receive any complaints about Dr. Rivero after 2006, but
noted that this absence is not surprising and is irrelevant, because, at that point, Dr. Rivero was
working at UNM only one day a month, so he was “not really interacting much with conscious
patients,” but rather “performing surgery, . . . assisting other surgeons with the surgeries,

- 114 -

or . . . working on patients with whom [he] ha[d] a preexisting relationship.” June 26 Tr. at
51:25-52:4 (Marcus). See id. at 51:17-52:8 (Marcus). Finally, UNM posited that, if Dr. Rivero
believed that he was acting professionally, it did not make sense that he agreed to four
counseling sessions or contacted a psychiatrist to set up the sessions. See June 26 Tr. at 52:9-13
(Marcus).
c.

Argument Regarding the Merits of the Constructive Discharge Claim.

The parties then turned to the constructive discharge issue, with UNM arguing that this
claim “is completely without merit.” June 26 Tr. at 52:19 (Marcus). UNM asserted that the first
prong of a constructive discharge claim requires “either a disability or a perception of disability,”
June 26 Tr. at 53:1 (Marcus), and that there is no evidence that Dr. Rivero has a disability, or
“that UNM perceived him or regarded him as having a disability,” June 26 Tr. at 53:4-5
(Marcus). See id. at 52:25-53:5 (Marcus). UNM noted that it renewed Dr. Rivero’s privileges
each year, “with a statement saying that he does not have a disability.” June 26 Tr. at 53:6-7
(Marcus). UNM contended that its evaluation requirement does not imply that it regarded
Dr. Rivero as disabled; rather, there must be “something corroborating to indicate that UNM
perceived him to have a disability.” June 26 Tr. at 53:13-14 (Marcus). See id. at 53:8-14
(Marcus). Further, UNM argued that Dr. Schenck’s compromise that Dr. Rivero did not need to
be on call does not mean Dr. Schenck regarded him as disabled. See June 26 Tr. at 53:15-21
(Marcus). UNM posited that Dr. Schenck was trying to help Dr. Rivero, because they were
friends, and Dr. Schenck was attempting to find a way to bring Dr. Rivero back full-time while

- 115 -

avoiding his professionalism issues. See June 26 Tr. at 54:8-17 (Marcus). UNM noted that Dr.
Rivero cited his personality conflict with Dr. Pitcher as causing tension at work, which UNM
argued “does not indicate constructive discharge.” June 26 Tr. at 55:10-11 (citing Turnwall v.
Tr. Co. of Am., 146 F. App’x 983 (10th Cir. 2005)(unpublished)). See id. at 55:1-12 (Marcus).
Accordingly, UNM contended that Dr. Rivero fails “to produce sufficient evidence to survive
summary judgment.” June 26 Tr. at 55:18-19 (Marcus).
UNM argued that the second prong of constructive discharge requires an action that is
“motivated by a perception of disability,” and that, again, there is no evidence of such an action.
June 26 Tr. at 55:22-23 (Marcus). UNM contended that the necessary motivation is lacking in
the alleged personality conflict with Dr. Pitcher of which Dr. Rivero complains. See June 26 Tr.
at 56:1-5 (Marcus). UNM argued that Dr. Rivero’s working conditions were not so bad that “a
reasonable person would not want to come in to work,” so Dr. Rivero was not constructively
discharged. June 26 Tr. at 56:10-11 (Marcus). See id. at 56:6-11 (Marcus). UNM also asserted
that a constructive discharge claim cannot rest on one discriminatory act, that there must be other
aggravating factors, and that Dr. Rivero asserts that there was only one discriminatory act -- the
allegedly illegal medical inquiry. See June 26 Tr. at 56:12-25 (Marcus). UNM noted that, after
the Addendum, Dr. Rivero worked as usual for three more years with nobody treating him
inappropriately until he received all the documents in his credentialing file and, suddenly, in his
subjective mind, he believed UNM had no reason for the Addendum, and he felt his working
conditions deteriorated. See June 26 Tr. at 57:1-20 (Marcus).

- 116 -

Dr. Rivero responded that the law does not support UNM’s contention that a single
discriminatory act does not constitute constructive discharge. See June 26 Tr. at 58:14-24
(Norvell). Dr. Rivero contended that the Addendum is not the only act which created a hostile
work environment, but that, in isolation, “it would give rise to a question as to whether that
singular act was severe enough to give rise to -- regarded as [disabled] status for Dr. Rivero.”
June 26 Tr. at 59:5-7 (Norvell). See id. at 59:3-7 (Norvell). Dr. Rivero argued that, because
UNM allows “that the term ‘psychiatric’ implies severe mental impairment,” June 26 Tr. at 59:910 (Norvell), the Addendum’s requirement of a psychiatric evaluation insinuates that UNM
regarded Dr. Rivero as having a severe mental impairment, see June 26 Tr. at 59:11-12
(Norvell). Dr. Rivero asserted that the Addendum’s language combined with Dr. Schenck’s
suggestion to reduce Dr. Rivero’s time on call “because stress brought about some disabling
factor,” June 26 Tr. at 59:15-16 (Norvell), creates a question of fact for the jury to determine
whether Dr. Schenck perceived Dr. Rivero as disabled because of his reaction to stress, see June
26 Tr. at 59:13-18 (Norvell). Dr. Rivero argued that these aspects combined with Dr. Rivero’s
conflict with Dr. Pitcher “underpinned an environment of hostility . . . and later gives ground to
the perception of Dr. Rivero having potentially being regarded as disabled.” June 26 Tr. at 60:23, 5-6 (Norvell). See id. at 59:24-60:6 (Norvell). Dr. Rivero maintained that his “dispute with
Dr. Pitcher laid the groundwork” for “[t]he constructive discharge, the unbearable working
conditions, . . . [and the] regarded as status of Dr. Rivero as being disabled.” June 26 Tr. at 60:813 (Norvell). Dr. Rivero also argued that Dr. Schenck treatment of Dr. Rivero was a “flip-flop,”

- 117 -

because “[h]e went from being his friend to being manipulative, creating a very difficult
environment where Dr. Rivero was unable to trust his own supervisor.” June 26 Tr. at 60:16-29
(Norvell).

Dr. Rivero also noted that, when he sought access to his credentialing file,

Dr. Schenck “withdrew the [A]ddendum, because he felt as though that was an act of aggression,
when it was a completely legal act.” June 26 Tr. at 60:23-25 (Norvell). As to UNM’s assertion
that Dr. Rivero could have filed suit and received the documents, Dr. Rivero noted that he filed
suit -- the mandamus action. See June 26 Tr. at 61:3-9 (Norvell). Dr. Rivero posited that, when
he received all the documents and determined that UNM had no basis for the Addendum’s
requirements, he could not “continue to work in an environment like that, where the [A]ddendum
-- when he’s perceived as being -- possessing a severe mental impairment.” June 26 Tr. at
61:15-18 (Norvell). See id. at 61:10-21 (Norvell).
UNM responded that Dr. Rivero’s “alleged success in Oklahoma is irrelevant,” because
UNM “do[es] not know the details of his career in Oklahoma,” so UNM is only “considering his
behavior and what happened to him in New Mexico.” June 26 Tr. at 62:4-8 (Marcus). UNM
asserted that the mandamus action is also irrelevant, because the state court is dealing with how
UNM handled the documents, and because Dr. Rivero provides no evidence that this handling
was done to get Dr. Rivero to quit. See June 26 Tr. at 62:9-17 (Marcus). UNM argued that
Dr. Rivero’s counsel is twisting its words, because it stated that Dr. Rivero was not perceived as
having a severe mental impairment. See June 26 Tr. at 62:18-22 (Marcus). Further, UNM
asserted that there is no evidence that Dr. Schenck was manipulative, and posited that

- 118 -

Dr. Schenck revoked the Addendum only after Dr. Rivero “continued to refuse to sign it.” June
26 Tr. at 64:4 (Marcus). See id. at 63:21-64:5 (Marcus). UNM noted that Dr. Rivero continued
working at UNM for three years after it revoked the Addendum, more than a reasonable amount
of time, so his constructive discharge claim should fail, because precedent counsels that there is
no constructive discharge where the employee continued to work for three years after the last
alleged act of discrimination. See June 26 Tr. at 64:5-21 (Marcus). UNM argued that a
constructive discharge claim cannot wholly rest on one discriminatory act, so again Dr. Rivero’s
claim must fail, because he “is essentially basing his one claim of constructive discharge on this
one act and his subjective interpretation of that act years after the fact, after he received the
documents.” June 26 Tr. at 65:4-7 (Marcus). See id. at 65:1-8 (Marcus). UNM conceded that
Dr. Rivero stopped coming to work after receiving the documents, but he stayed on the payroll
for four months afterward until he tendered his resignation. See June 26 Tr. at 65:9-12 (Marcus).
The Court asked whether, by singling out Dr. Rivero and requiring a psychiatric
examination, and arguing that the examination is consistent with business necessity and that it is
job related, UNM is, in some way, saying that Dr. Rivero is mentally disabled. See June 26 Tr.
at 65:18-66:5 (Court). UNM conceded that the psychiatric evaluation requirement shows that it
believed Dr. Rivero had a problem, but asserted that “there is a difference between a problem
and a problem that limits or substantially limits a major life activity. And that’s the standard for
disabled.” June 26 Tr. at 66:8-11 (Marcus). See id. at 66:6-11 (Marcus). The Court pressed
back: “But isn’t that a very fine line to draw, the university saying that this is -- this

- 119 -

psychological examination is job related, it’s a business necessity, and yet say he’s not disabled
and it’s not impacting or impairing life activities?” June 26 Tr. at 66:12-16 (Court). UNM
stated that “[i]t may be a fairly thin line,” June 26 Tr. at 66:18 (Marcus), but asserted that
Dr. Rivero’s issue with professionalism does not limit a major life activity, June 26 Tr. at 66:1925 (Marcus).
Dr. Rivero responded that his colleagues’ testimony disputes UNM’s assertion that he
acted unprofessionally, because the testimony provides that patients loved Dr. Rivero and
continue to request his services. See June 26 Tr. at 67:21-68:10 (Norvell). Dr. Rivero noted that
he has never been sued nor been reported to the Medical Board, and that it does not make sense
that UNM allowed him to operate if it believed he needed a psychiatric evaluation. See June 26
Tr. at 68:13-20 (Norvell).

Dr. Rivero contended that, because the complaints were never

investigated, they do not have merit. See June 26 Tr. at 68:21-23 (Norvell). Dr. Rivero noted
that, when these complaints supposedly increased immediately before he moved to Oklahoma
and reduced his time at UNM to 0.05 FTE, Dr. Schenck and twenty-three of Dr. Rivero’s
colleagues did not want him to leave. See June 26 Tr. at 68:23-69:8 (Norvell). Dr. Rivero
maintained that UNM knew how Dr. Rivero behaved in Oklahoma, because that hospital
provided UNM with information regarding his status and credentials every two years, and
nothing in those reports support UNM’s assertion of unprofessionalism. See June 26 Tr. at 69:915 (Norvell). Finally, Dr. Rivero argued that, under Green v. Brennan, there is no longer a twostep process “where a case is filed on discrimination, and then amended to include constructive

- 120 -

discharge[;] when constructive discharge is filed the discrimination claim is incorporated[,
which] plays into the statute of limitations argument.” June 26 Tr. at 70:2-7 (Norvell).99
The Court asked how Rehabilitation Act claims differ from Title VII claims regarding
constructive discharge, and Dr. Rivero responded that the standard is the same, but that Title VII
requires exhaustion of administrative remedies. See June 26 Tr. at 70:8-22 (Court, Norvell).
The Court questioned how the Addendum alone created an intolerable working environment,
especially because Dr. Rivero continued to work. See June 26 Tr. at 71:2-10 (Court). Dr. Rivero
contended that there were aggravating circumstances in addition to the Addendum: UNM
administrators impeded Dr. Rivero’s access to his credentialing file, UNM’s continued
obstruction through frivolous litigation, and Dr. Schenck accused Dr. Rivero of unprofessional
behavior and stated that he believed that stress hindered Dr. Rivero’s work. See June 26 Tr. at
71:11-72:2 (Norvell).
UNM briefly responded to Dr. Rivero’s argument, contending that there were a number
of unprofessional actions that concerned UNM and that it wanted to determine the cause before it
allowed him to return to full-time employment. See June 26 Tr. at 72:10-73:10 (Marcus). UNM
asserted that constructive discharge requires a work environment so intolerable that a reasonable
person would resign and noted that Dr. Rivero’s staying for three years after the Addendum’s

99

The Court does not address this argument in the Analysis, because Green v. Brennan
expressly states that “constructive discharge is a claim distinct from the underlying
discriminatory act,” 136 S. Ct. at 1779 (citing Pa. State Police v. Suders, 542 U.S. 129, 149
(2004)), and that “[t]he limitations-period analysis is always conducted claim by claim, 136 S.
Ct. at 1782.

- 121 -

presentment strains his credibility. See June 26 Tr. at 73:11-15 (Marcus). It also appeared to
UNM that Dr. Rivero is attempting to use his constructive discharge claim to get around the
statute-of-limitations issue with his illegal medical inquiry claim. See June 26 Tr. at 73:16-24
(Marcus).
The Court stated its inclination to rule on the legal issues that UNM’s MSJ raises,
because it believes that the factual issues are largely undisputed. See June 26 Tr. at 74:3-13
(Court). The Court also stated that it would review Magistrate Judge Lynch’s decision, as it does
not understand why the accrual date for the medical inquiry claim would be the production of
Dr. Rivero’s credentialing file.

See June 26 Tr. at 74:14-24 (Court).

The Court had no

inclination on the merits of the medical inquiry claim, but did not believe that the events gave
rise to a claim for constructive discharge. See June 26 Tr. at 74:25-75:9 (Court).
d.

Discussion on Scheduling.

The parties then turned to scheduling issues. See June 26 Tr. at 76:15-16 (Court).
Dr. Rivero verified that discovery had ended, that there is no pretrial conference or trial setting,
and that both parties had filed a pretrial order. See June 26 Tr. at 76:8-12 (Norvell). Dr. Rivero
indicated that he would like to go to trial in December, and UNM stated that a trial at end of
December would work with its schedule. See June 26 Tr. at 79:8-16 (Norvell, Court, Marcus).
Both parties agreed that trial would last about five days. See June 26 Tr. at 80:8-11 (Norvell,
Marcus). After consulting its calendar, the Court stated that it would set the trial for the week of
December 3. See June 26 Tr. at 80:12-14 (Court). The Court then set the pretrial conference for

- 122 -

“8:30 on November 20.” June 26 Tr. at 81:22 (Court). The Court noted that trial would start at
8:30 am, with the jury coming in at 9:00 am. See June 26 Tr. at 82:12-14 (Court).
e.

Argument Regarding the Complaints MIL.

The parties then turned to the Complaints MIL, with Dr. Rivero arguing that remote
complaints from 1992 would be unfairly prejudicial and not relevant to the jury. See June 26 Tr.
at 82:15-83:7 (Court, Norvell). Dr. Rivero asserted that UNM would use the older complaints to
“try to paint Dr. Rivero in a bad light, to cherry-pick and misrepresent Dr. Rivero’s conduct long
before the material issues that are in front of the Court with respect to the motion for summary
judgment and the merits that are going to be discussed at trial.” June 26 Tr. at 83:14-19
(Norvell). Dr. Rivero argued that, because UNM promoted him to full professor in 2005 with no
complaints, discipline, or suspension, any complaints before 2005 are immaterial. See June 26
Tr. at 83:20-24 (Norvell). Dr. Rivero contended that there is no basis for the complaints, and so
it is preposterous for UNM to believe that he acted professionally for ten years and then reverted
to misbehavior. See June 26 Tr. at 83:25-84:7 (Norvell). Accordingly, Dr. Rivero requested
“that the Court limit any timeframe in discussion of complaints with respect to Dr. Rivero.” June
26 Tr. at 84:8-10 (Norvell).
UNM responded that the older complaints against Dr. Rivero “are highly relevant to this
case,” because “there was a substantial increase in complaints regarding his lack of
professionalism as early as 2003.” June 26 Tr. at 84:19-22 (Marcus). UNM thus contended that
the complaints after 2003 are certainly relevant as a pattern of Dr. Rivero’s behavior and as

- 123 -

rationale for the Addendum. See June 26 Tr. at 84:25-85:2 (Marcus). UNM argued that the
complaints from the 1990s are also relevant, because they help to understand Dr. Rivero’s later
behavior and show that the period of calm, without complaints, “was more of an anomaly.” June
26 Tr. at 85:9-10 (Marcus). See id. at 85:3-11 (Marcus). Accordingly, UNM asserted that the
factfinder should consider these older complaints to determine if UNM appropriately required
the Addendum for Dr. Rivero to return full time. See June 26 Tr. at 85:12-19 (Marcus). UNM
noted that, when questioned about his issues in the 1990s -- including his refusal to be tested for
MRSA and a ten-minute barrage of obscenities -- Dr. Rivero responded in a concerning manner
by not having remorse, not admitting that he made any mistakes, and not acknowledging that he
needed to improve his professionalism. See June 26 Tr. at 85:20-86:24 (Marcus).
Dr. Rivero responded that there is no pattern of misbehavior because there is a decade
with no incident. See June 26 Tr. at 87:6-9 (Norvell). As to the barrage-of-obscenities incident,
Dr. Rivero admitted that he had a disagreement with a colleague and that they both swore at each
other, but stated that they are now good friends. See June 26 Tr. at 87:10-18 (Norvell). Further,
Dr. Rivero contended that his refusal to be tested for MRSA was justified, because he had no
pattern of infection, so he did not need to be tested, and the individual administering the test
barged in and interfered with his clinical rounds. See June 26 Tr. at 87:19-88:2 (Norvell).
Accordingly, Dr. Rivero argued that the 1990s incidents are “nonsensical” and the others before
2006 have dubious value, so any complaints before 2006 “would create confusion, undue
prejudice, and those other elements in 403.” June 26 Tr. at 88:7, 11-13 (Norvell). The Court

- 124 -

stated that it was “not inclined to keep complaints out,” because “it would probably be the best
for the jury to have a robust record.” June 26 Tr. at 88:16-19 (Court).
f.

Argument Regarding the Psychological MIL.

Dr. Rivero then argued for the Psychological MIL, asserting that “[t]he connotative
implications of psychological attempt to mollify the actual facts of this case, which are that
UNM presented a psychiatric exam.” June 26 Tr. at 89:20-23 (Norvell). Dr. Rivero noted that
UNM admits that the term “psychiatric” “gives rise to the implication of a severe mental
disorder,” June 26 Tr. at 90:2-3 (Norvell), but that this term is the one that UNM uses fifteen
times in the Addendum, June 26 Tr. at 89:23-25 (Norvell). Accordingly, Dr. Rivero asserted that
UNM should use the word it chose to use in the Addendum -- “psychiatric” -- and not mollify it,
as this variance would confuse the jury and create undue influence as the jury considers the
effect which the Addendum had on Dr. Rivero. See June 26 Tr. at 90:3-15 (Norvell).
UNM responded that “[t]he terms ‘psychiatric’ and ‘psychological’ in the clinical sense
are fairly interchangeable,” because “[p]sychologists can do almost everything that psychiatrists
do, except prescribe drugs.” June 26 Tr. at 90:21-24 (Marcus). According to UNM, the
Addendum provides no evidence that UNM believed Dr. Rivero needed medication, so there is
no real distinction in the clinical sense between the words. See June 26 Tr. at 90:24-91:4
(Marcus). UNM contended, however, that, for lay people and for the potential jury, “psychiatry
has an extremely powerful connotation that it indicated a severe condition,” June 26 Tr. at 91:1113 (Marcus), a connotation lacking in the clinical sense, so “UNM has the right to use a more

- 125 -

neutral term to try to avoid having a jury reach a decision based solely on emotion,” June 26 Tr.
at 91:19-21 (Marcus). See id. at 91:10-21 (Marcus). UNM asserted that a psychological
evaluation is very similar to a psychiatric evaluation, that the personality evaluation it sought
could be conducted by a psychologist or a psychiatrist, but that it chose to have Dr. Rivero talk to
a psychiatrist. See June 26 Tr. at 93:2-7 (Marcus).
Dr. Rivero responded that the Addendum says nothing about a personality test and that it
specifies a psychiatric evaluation by a board-certified psychiatrist. See June 26 Tr. at 93:12-16
(Norvell). Dr. Rivero maintained that, should UNM use different language, it changes the
Addendum’s meaning. See June 26 Tr. at 93:19-21 (Norvell). Dr. Rivero also argued that
nobody could objectively perceive the Addendum as requesting a psychological evaluation or
personality tests. See June 26 Tr. at 93:22-94:2 (Norvell).
The Court stated its inclination that it will not prevent UNM from arguing that the
psychiatric evaluation is a psychological examination, but that UNM should not replace the term
“psychiatric” with “psychological” when discussing the evaluation requirement in opening
statements and while questioning witnesses in front of the jury. See June 26 Tr. at 94:7-17
(Court). The Court allowed that, should UNM explain to the jury in the trial’s evidentiary phase
how, in the clinical sense, there is little difference between the two, UNM could call the
Addendum’s requirement what it wants in closing. See June 26 Tr. at 94:18-95:2 (Court).
Otherwise, including in the opening, the Court believed, using the term “psychological” would
be argumentative. See June 26 Tr. at 95:5-10 (Court).

- 126 -

g.

Argument Regarding Rivero’s MSJ.

Dr. Rivero then argued for his MSJ, and stated that the Court could rule on the portion of
his MSJ discussing the statute-of-limitations defense at the same time the Court rules on UNM’s
MSJ statute-of-limitations argument. See June 26 Tr. at 95:19-96:4 (Court, Norvell). Dr. Rivero
argued that UNM has provided no evidence to show that the doctrine of laches and waiver bars
his constructive discharge claim, and noted that Magistrate Judge Lynch determined, in the MTD
Order, that Dr. Rivero adequately stated a claim for constructive discharge. See June 26 Tr. at
96:14-25 (Norvell).

Accordingly, Dr. Rivero argued that the Court should strike UNM’s

affirmative defenses I -- failure to state a claim -- and III -- laches and waiver -- with respect to
his constructive discharge claim.

See June 26 Tr. at 97:4-12 (Norvell).

Dr. Rivero also

requested that the Court strike UNM’s affirmative defense XIII -- that it acted in accordance with
its policies -- because, while UNM provided many policies, it admitted that it applied none with
regards to the Addendum and that it had no set policy regarding psychiatric evaluations. See
June 26 Tr. at 97:13-25 (Norvell). Regarding UNM’s affirmative defense XIV -- that it fulfilled
all contractual and statutory obligations -- Dr. Rivero noted that UNM stated it would
supplement this defense and averred that this response is inadequate, because it does not provide
“a fair sense of how that defense applies.” June 26 Tr. at 98:6-7 (Norvell). See id. at 98:1-8
(Norvell). Finally, Dr. Rivero requested that the Court strike UNM’s affirmative defense XV -- a
reservation of right to amend the Answer -- as it is “not really a defense.” June 26 Tr. at 98:1213 (Norvell). See id. at 98:9-13 (Norvell).

- 127 -

In response, UNM conceded that its affirmative defense XV could be stricken. See June
26 Tr. at 100:22-25 (Marcus). UNM maintained, however, that the Court should not strike
affirmative defense I regarding the constructive discharge claim, because the Complaint provides
no facts supporting such a claim. See June 26 Tr. at 101:1-9 (Marcus). UNM argued that its
laches and waiver defense also applies to the constructive discharge claim, because Dr. Rivero
worked at UNM for three years after receiving the Addendum despite his assertion that his
working conditions were intolerable.

See June 26 Tr. at 101:16-24 (Marcus).

Regarding

affirmative defense XIII, UNM asserted that it followed its polices and regulations, because there
is no set policy on psychiatric evaluations, and there cannot be one, as every situation is
different. See June 26 Tr. at 102:8-14 (Marcus). UNM also averred that it has policies regarding
professionalism and disability discrimination, and that Dr. Rivero has provided no evidence that
UNM violated such policies. See June 26 Tr. at 102:19-103:2 (Marcus). As to affirmative
defense XIV, UNM argued that it fulfilled all obligations to Dr. Rivero under contract, because
he reduced to 0.05 FTE voluntarily, and because UNM was not required to raise this time to full
time, as the contract provided for 0.05 FTE and Dr. Rivero was essentially asking for a new
contract. See June 26 Tr. at 103:3-15 (Marcus). Finally, UNM asserted that, as far as the statute
is concerned, the Rehabilitation Act requires that the medical inquiry be a business necessity and
job related, which it believes substantial evidence supports such a conclusion, and that, therefore,
the Court should not strike this defense. See June 26 Tr. at 103:16-104:2 (Court).

- 128 -

Dr. Rivero responded that Magistrate Judge Lynch’s MTD Order addresses the failure-tostate-a-claim and the laches-and-waiver-doctrine defenses, and that Dr. Rivero thus overcame
these defenses. See June 26 Tr. at 104:12-20 (Norvell). As to UNM’s defense regarding
policies, Dr. Rivero noted that Dr. Schenck testified that he did not apply any policy regarding
the Addendum, that there is no evidence of UNM applying its policies, and that UNM has
provided evidence only that policies existed. See June 26 Tr. at 104:21-105:2 (Norvell). Finally,
Dr. Rivero asserted that UNM’s reference to other defenses in its explanation of its affirmative
defense XIV “defeats the purpose of fairness with respect to what Dr. Rivero would seek to
litigate going forward.” June 26 Tr. at 105:5-7 (Norvell). See id. at 105:3-7 (Norvell).
The Court then provided its inclination that it would rule in favor of UNM’s MSJ, finding
that the statute of limitations bars Dr. Rivero’s medical inquiry claim and that he failed to state a
constructive discharge claim. See June 26 Tr. at 105:17-25 (Court). Dr. Rivero then emphasized
that he still has a retaliation claim that was briefed and, therefore, that still exists. See June 26
Tr. at 107:6-8 (Norvell). UNM responded that it was operating under Magistrate Judge Lynch’s
division of the Complaint into a claim for an illegal medical inquiry and a claim for constructive
discharge, and that it had no notice of a retaliation claim. See June 26 Tr. at 107:19-24 (Marcus).
UNM argued that, if the FAC were interpreted to state a retaliation claim, it “would be clearly
time-barred because the likely retaliation, which was the [A]ddendum[,] took place [in] April
2011, more than five years before plaintiff brought the lawsuit.”

June 26 Tr. at 108:4-7

(Marcus). See id. at 108:2-7 (Marcus). Dr. Rivero conceded that whether he stated a retaliation

- 129 -

claim is in dispute. See June 26 Tr. at 108:8-14 (Court, Norvell). The Court questioned whether
the briefings discussed the retaliation claim. See June 26 Tr. at 108:23-25 (Court). UNM
clarified that Dr. Rivero “asserted it in his response” and that it had responded but “got no
reply.” June 26 Tr. at 109:4-6 (Marcus). UNM reasserted that Magistrate Judge Lynch divided
the FAC into two causes of action and that it operated under that structure, so it did not need to
address retaliation in its MSJ. See June 26 Tr. at 109:9-14 (Marcus). UNM argued, however,
that if there were a retaliation claim, it is “very obviously time-barred.” June 26 Tr. at 109:15-16
(Marcus). The Court thanked the parties for their time and stated it would try to get “some
opinions and orders out.” June 26 Tr. at 110:11 (Court).
17.

The Recusal Motion.

On July 17, 2018, Dr. Rivero requested that the Court recuse pursuant to 28 U.S.C. § 455.
See Recusal Motion at 1. Dr. Rivero asserts that, in requesting recusal, he “seeks to protect the
judge and this proceeding from the outward appearance of which impartiality might reasonably
be questioned and, in turn, protect the integrity of any decision, ruling, or verdict entered in this
case.” Recusal Motion at 1. Dr. Rivero contends that “[t]he disclosures by Judge Browning as
to his relationship with the University of New Mexico and its Regents give rise to an objectively
reasonable question of impartiality,” so “recusal is proper.” Recusal Motion at 3. Dr. Rivero
notes the First and Second Disclosure Letter’s disclosures: the Court’s teaching at the School of
Law; the Court’s having students and its co-teacher at its home; the Court’s waiver of pay being
used to pay a law student to help the Court write an article; how that law student accepted a

- 130 -

clerkship with the Court; how the Court’s waiver of pay may have been treated as a donation to
the School of Law or the UNM Foundation on one occasion; and the Court’s acquaintanceships
with Mr. Doughty, the current President of the Board of Regents, and Mr. Adcock, the Student
Regent for 2017-2018. See Recusal Motion at 4-6 (citing First Disclosure Letter at 1-2; Second
Disclosure Letter at 1-2).
Dr. Rivero states that the next business day, Monday, June 25, 2018, the Court’s assistant
called Mr. Norvell to ask if he had received the Second Disclosure Letter. See Recusal Motion
at 6. Dr. Rivero states that, as the Court had scheduled the hearing on the parties’ dispositive
motions for the next day, and Dr. Rivero was “proceeding to travel to New Mexico for the
hearing,” he “had the opportunity to review the Second Disclosure Letter only once without
sufficient time to reflect upon the disclosures.”

Recusal Motion at 6 (citing Affidavit of

Dr. Dennis P. Rivero ¶¶ 2-4, at 1 (dated July 17, 2018), filed July 17, 2018 (Doc. 2031)(“Second Rivero Aff.”)). Accordingly, Dr. Rivero states that Mr. Norvell informed the Court’s
“assistant that Dr. Rivero would proceed without discussion of the Second Disclosure Letter.”
Recusal Motion at 6 (citing Second Rivero Aff. ¶ 5, at 1).
Dr. Rivero asserts that a United States judge shall recuse where his or her “impartiality
might reasonably be questioned,” Recusal Motion at 7 (citing 28 U.S.C. § 455(a)), which is a test
“of objective reasonableness, that is, whether the judicial officer’s impartiality might reasonably
be questioned under the circumstances,” Recusal Motion at 7 (citing Lunde v. Helms, 29 F.3d
367, 370 (8th Cir. 1994)). Dr. Rivero asserts that a judge is also required to recuse where he or

- 131 -

she has a financial or any other interest that could be substantially affected by the proceeding.
See Recusal Motion at 7 (citing 28 U.S.C. § 455(b)(4)). Here, Dr. Rivero argues that the Court
“has more than a mere association to Defendant University of New Mexico and its Board of
Regents,” and that the Court has “developed strong ties that may implicate a reasonable question
of impartiality” requiring recusal. Recusal Motion at 7 (citing Lunde v. Helms, 29 F.3d at 371).
Dr. Rivero first contends that the Court’s employment at the School of Law “could give
rise to a reasonable question of impartiality.” Recusal Motion at 8 (bolding omitted). According
to Dr. Rivero, the Court’s redirection of pay to a School of Law student to write an article
“presumably under [the Court’s] authorship . . . can be reasonably viewed as a redirection of
pecuniary benefit from Defendant into the form of employment of law students.” Recusal
Motion at 8. Dr. Rivero contends that this benefit “could be viewed as having additional value
above direct compensation to the judge, as the student resources did not impact the federal
court’s budget.” Recusal Motion at 8. Dr. Rivero concedes that the Code of Judicial Conduct
allows for compensation for teaching law, but argues that there is a “problem of perception
here,” that “[a]n objective observer could perceive, even incorrectly, that, given the benefits of
resources from UNM law school, a judge in a similar position could, even unintentionally or
subconsciously, favor the institution from which he has garnered recent benefit.”

Recusal

Motion at 8. Further, Dr. Rivero posits that the Court’s employment “was ultimately with and
under Defendant Board of Regents, whose authority governs the UNM School of law as well as
the School of Medicine/University of New Mexico Health Sciences Center.” Recusal Motion at

- 132 -

8-9. Dr. Rivero notes that his own employment relationship “was also with and under the
Defendant Board of Regents.” Recusal Motion at 9. Dr. Rivero therefore argues that there is a
strain on the perception of impartiality when (i) a judge and a plaintiff in a case
have been employees of a defendant, (ii) a judge has occasionally and quite
recently worked for the defendant, (iii) the plaintiff is directly adversarial to that
defendant, and (iv) the defendant’s alleged illegal and improper employment
practices are directly at issue in the litigation.
Recusal Motion at 9.
Dr. Rivero also contends that the Court’s ties with the Board of Regents “could create an
objectively reasonable question as to his impartiality.” Recusal Motion at 9. Dr. Rivero asserts
that the Court’s associations with the Board of Regents appear “mainly personal” and “do not
necessarily negate impartiality, but their personal nature coupled with the employment
relationship with Defendant objectively give rise to a reasonable question of impartiality,”
warranting recusal under 28 U.S.C. § 455. Recusal Motion at 9. Finally, Dr. Rivero argues that
the case’s special circumstances “create a unique context in which recusal preserves the integrity
not only of the Court’s stature but of any ruling as to the merits of the case,” as, should UNM
win, it would be “a Pyrrhic victory.” Recusal Motion at 10. Dr. Rivero further argues that,
should he win, UNM’s federal funding “could face additional scrutiny or sanction, including
withdrawal of funding, pursuant to an adverse holding of discriminating,” potentially souring
UNM’s relationship with the Court. Recusal Motion at 10 (citing 10 C.F.R. §§ 4.233, 4.46,
4.48). Accordingly, Dr. Rivero requests that the Court recuse. See Recusal Motion at 10.

- 133 -

18.

The Recusal Motion Response.

UNM responded on July 31, 2018. See Response Brief in Opposition to Motion to
Recuse the Honorable James O. Browning, filed July 31, 2018 (Doc. 208)(“Recusal Motion
Response”). UNM argues that motions brought pursuant to 28 U.S.C. § 455 “must be timely
filed.” Recusal Motion Response at 1 (citing Willner v. Univ. of Kan., 848 F.2d 1023, 1028
(10th Cir. 1988)(per curiam)). UNM notes that the Court was assigned to the case on October 3,
2017, and sent the First Disclosure Letter on January 23, 2018. See Recusal Motion Response at
2. UNM therefore argues that the Recusal Motion is untimely, because Dr. Rivero waited to file
it “over nine months after Judge Browning was initially assigned to the case, and almost six
months after Judge Browning sent his First Disclosure Letter.” Recusal Motion Response at 2.
UNM posits that, significantly, the First Disclosure Letter “was the only one of the two
Disclosure Letters that contained any reference to anything that could remotely be considered
even de minimus compensation to Judge Browning from UNM[, and] Judge Browning noted that
he believed that he could be impartial.” Recusal Motion Response at 2. UNM asserts that the
Recusal Motion is also untimely as to the Second Disclosure Letter, despite a gap of only a
month, because “the Court held a dispositive Motions hearing on June 26, 2018,” and “the
Court’s actions clearly demonstrated that it was expecting any parties with objections to respond
prior to the hearing.” Recusal Motion Response at 3. See id. at 2-3. According to UNM, the
Court’s assistant calling the parties before the hearing to ask if they received the Second
Disclosure Letter and if they had any objections underscores this expectation. See Recusal

- 134 -

Motion Response at 2. UNM argues that recusal at this time would be prejudicial to it, because it
“invested a substantial amount of time preparing for and attending the hearing, and would be a
waste of judicial resources.” Recusal Motion Response at 3.
UNM asserts that Dr. Rivero’s delay in objecting “cannot be excused by his statements in
his affidavit,” because it “is not notarized, which renders it insufficient as testimony.” Recusal
Motion Response at 3 (citing Second Rivero Aff. at 1). Further, UNM asserts that Dr. Rivero’s
inability to “reflect upon the disclosures” is also an insufficient excuse for delay, because “he
admits that he was able to review the disclosure letter” and that he “is represented by counsel,
who is well-qualified to advise him regarding whether a judge should be recused based on
disclosures.” Recusal Motion Response at 3 (citing Second Rivero Aff. ¶ 3, at 1). UNM argues
that it would be a waste of judicial resources and a “manipulation of the judicial process” should
the Court recuse now, Recusal Motion Response at 3, because the dispositive motions hearing
likely would need to be repeated and it would give Dr. Rivero “a second bite at the proverbial
apple,” Recusal Motion Response at 4.
Finally, UNM argues that the disclosures are not sufficient to warrant the Court’s recusal.
See Recusal Motion Response at 4. UNM notes that the Tenth Circuit’s “test is whether a
reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s
impartiality.” Recusal Motion Response at 4 (internal quotation marks omitted)(emphasis in
Recusal Motion Response)(quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)).
UNM argues that, here, “a reasonable person, knowing all relevant facts, would not have any

- 135 -

reason to harbor doubts about the judge’s impartiality.” Recusal Motion Response at 4. As
Dr. Rivero states in the Recusal Motion that he “is only concerned about the appearance of
impropriety,” UNM questions how he can argue, with “no concerns that Judge Browning lacks
integrity,” that an “informed, reasonable person would have such concerns.” Recusal Motion
Response at 5.
UNM argues that the Court’s teaching at the School of Law does not give it “a substantial
financial interest in UNM.” Recusal Motion Response at 5. UNM posits that the judge’s
connections in Lunde v. Helms, which the United States Court of Appeals for the Eighth Circuit
decided did not warrant recusal, are similar to the Court’s here, because that judge was an
alumnus of the university, made financial contributions to the university’s foundation, and
provided educational programs at the university. See Recusal Motion Response at 5 (citing
Lunde v. Helms, 29 F.3d at 370-71). Further, UNM notes the judge’s substantial ties to the
school in Willner v. University of Kansas -- he was a director of the university’s alumni
association and served as President of the law school’s Board of Governors -- still did not require
recusal. See Recusal Motion Response at 5-6 (citing Willner v. Univ. of Kan., 848 F.2d at 1026,
1028). UNM posits that “it is unlikely that there are any federal or state judges in New Mexico
who have no connection with the” School of Law, because it “is the only law school in the state.”
Recusal Motion Response at 6.

UNM also asserts that it is irrelevant that the Court has

socialized with Mr. Doughty and Mr. Adcock, because they are not sued individually; rather,
“[t]he Board of Regents, as a whole, is named in the lawsuit, because it is simply the body that

- 136 -

can sue or be sued on behalf of UNM itself.” Recusal Motion Response at 6 (citing N.M. Stat.
Ann. § 21-7-4). UNM notes that a judgement against it will not personally affect any of the
Board of Regents members. See Recusal Motion Response at 6. Further, UNM posits that “no
current member of the Board of Regents was serving on the Board of Regents at any time
relevant to this litigation.” Recusal Motion Response at 6. UNM argues that the Recusal Motion
“is based solely on speculation,” Recusal Motion Response at 6, and that the Court should deny
the Recusal Motion, see Recusal Motion Response at 7.
19.

The Recusal Motion Reply.

Dr. Rivero replies. See Reply in Support of Motion to Recuse the Honorable James O.
Browning, filed August 10, 2018 (Doc. 208)(“Recusal Motion Reply”). Dr. Rivero contends that
the Recusal Motion is timely, noting that he received the Second Disclosure Letter four days
before a dispositive motions hearing and that the information provided “is not easily or quickly
digested,” especially while preparing for the hearing. Recusal Motion Reply at 1. Further,
Dr. Rivero notes that he filed the Recusal Motion before the Court had ruled on any of the
motions before it. See Recusal Motion Reply at 1. As to UNM’s assertion that recusal would be
prejudicial, Dr. Rivero posits that he “also prepared for and attended the hearing,” so “any
impact of a recusal will be uniformly distributed.” Recusal Motion Reply at 2. Further,
Dr. Rivero contends that his affidavit is technically valid, because 28 U.S.C. § 1746 “permits
unsworn affidavits submitted with filings when such affidavits comply with the requirements of
the statute.” Recusal Motion Reply at 2. Dr. Rivero argues that his affidavit is also logical,

- 137 -

because he had to prepare for the hearing, and because he “would be prejudiced in the face of a
demand for immediate response to the Second Disclosure Letter.” Recusal Motion Reply at 2.
Dr. Rivero argues that the Court’s connections with UNM warrants recusal, because an
objectively reasonable person could question the Court’s impartiality. See Recusal Motion
Reply at 3. Dr. Rivero notes that the Court “has had an intermittent employment relationship
with UNM and not suffered the consequences of UNM’s administrative caprice,” and has
interacted with Board of Regents members “who have ultimate discretion over [the Court’s]
ongoing albeit intermittent relationship with the University,” while Dr. Rivero has no
relationship with any of the Board of Regents members. Recusal Motion Reply at 3. Dr. Rivero
asserts that UNM has provided no evidence to support its statement “that ‘no current member of
the Board of Regents was serving on the Board at any time relevant to this litigation’ . . . , and it
is facially untrue.”

Recusal Motion Reply at 4 (quoting Recusal Motion Response at 6).

Dr. Rivero argues that “[t]he reputation of the Board of Regents and its members who stood by
and supported discriminatory polices are certainly at stake,” so any outcome adverse to UNM
would affect the Board of Regents and could potentially turn it against the Court. Recusal
Motion Reply at 4. Dr. Rivero asserts that the Court should act with integrity, which he posits
includes “the necessity to revisit conclusions through analyses of the parties involved in the case,
who may elucidate areas that may have been overlooked in determining the propriety of
continuing as a judge in this matter.” Recusal Motion Reply at 4. Finally, Dr. Rivero argues that
UNM’s reliance on Willner v. University of Kansas and Lunde v. Helms is misplaced. See

- 138 -

Recusal Motion Reply at 5-6. Dr. Rivero asserts that the Willner v. University of Kansas court
did not reach the merits in its decision, because it “simply ruled on the basis that the plaintiff’s
objection was untimely, having moved for recusal one year after having learned of the judge’s”
potential conflict. Recusal Motion Reply at 5 n.1 (citing Willner v. Univ. of Kan., 848 F.2d at
1029). Dr. Rivero distinguishes Lunde v. Helms, because the university did not employ the
judge, as is the case here. See Recusal Motion Reply at 6 (citing Lunde v. Helms, 29 F.3d at
370). Accordingly, Dr. Rivero requests that the Court recuse. See Recusal Motion Reply at 6.
20.

The August 13 Hearing.

The Court held a telephonic hearing out of district on the Recusal Motion on August 13,
2018, to which the parties consented.

See Notice of Defendant’s Consent to the Court’s

Telephonic Appearance for the Hearing Scheduled for A ugust [sic] 13, 2018 at 8:30AM at 1,
filed August 2, 2018 (Doc. 206); Plaintiff’s Consent to Telephonic Hearing on August 13, 2018
at 1, filed August 7, 2018 (Doc. 207). The Court began by asking UNM if it consented to the
Court conducting the hearing out of district, because the Court understood UNM to have
consented only to a telephonic hearing.

See Transcript of Motion Proceedings at 3:13-18

(Court)(taken August 13, 2018), filed November 28, 2018 (Doc. 219)(“Aug. 13 Tr.”). UNM
stated that it consented. See Aug. 13 Tr. at 3:19-20 (Marcus).
Dr. Rivero argued first, stating that he is not comfortable with the Court’s participation in
the case and requesting that the Court recuse based on the Court’s association with UNM as
provided in the Disclosure Letters. See Aug. 13 Tr. at 4:5-20 (Norvell). Dr. Rivero asserted

- 139 -

that, under 28 U.S.C. § 455(a), a federal judge must recuse from “any proceeding in which his
impartiality might be reasonably be questioned,” Aug. 13 Tr. at 4:23-25 (Norvell), which is a test
of “objective reasonableness, whether a judicial officer’s impartiality might be reasonably
questioned under the circumstances,” Aug. 13 Tr. at 5:1-4 (Norvell).

See id. at 4:21-5:5

(Norvell). Dr. Rivero believed that “what it comes down to is the continued, and potentially
intermittent and recurring employment with UNM, and the benefit that is garnered and may be
ongoing by the Court.” Aug. 13 Tr. at 5:21-24 (Norvell). Dr. Rivero also asserted that an
outside party may view as a direct, ongoing benefit the Court’s redirection of pay to a student for
article-writing help. See Aug. 13 Tr. at 6:2-17 (Norvell). Dr. Rivero argued that, because this
case is an employment suit, the Court’s employment relationship with UNM also gives rise to a
reasonable question of the Court’s impartiality. See Aug. 13 Tr. at 6:18-21 (Norvell). Dr.
Rivero asserted that “it would be a pyrrhic victory if the defendant won.” Aug. 13 Tr. at 8:23-24
(Norvell).
UNM responded that Dr. Rivero was aware of the Court’s teaching at the School of Law
in January, 2018, so his Recusal Motion based on this fact is untimely under the caselaw. See
Aug. 13 Tr. at 9:11-22 (Marcus). UNM contended that Dr. Rivero “ignored the letter” instead of
filing a motion to recuse in January, 2018, so “he waived any claims for recusal, any attempt at
recusal based on any facts mentioned in the first letter.” Aug. 13 Tr. at 8-11 (Marcus). As to the
Second Disclosure Letter, UNM noted that the Court “went out of [its] way to make sure that [it]
received an answer prior to the hearing,” by calling counsel for both parties “and got consent

- 140 -

from both sides in this case.” Aug. 13 Tr. at 10:17-22 (Marcus). UNM argued that, “by giving
consent early on, prior to the hearing, Mr. Norvell has also waived any claims for recusal.” Aug.
13 Tr. at 10:23-25 (Marcus). UNM averred that recusal now means the dispositive motions
hearing would be “a massive waste of judicial resources,” Aug. 13 Tr. at 11:6-7 (Marcus), and a
waste of time for both parties, see Aug. 13 Tr. at 11:2-13 (Marcus).

UNM argued that

Dr. Rivero is attempting to manipulate the judicial process to “get a second bite at the proverbial
apple.” Aug. 13 Tr. at 11:16-17 (Marcus). See id. at 11:14-18 (Marcus). UNM noted that the
Court’s reputation for ensuring that there is no appearance of a conflict of interest and asserted
that no reasonable person, knowing all the facts, would believe there is a conflict of interest here.
See Aug. 13 Tr. at 11:24-12:10 (Marcus). UNM also contended that the Court’s relationship
with the School of Law is more like that of a volunteer rather than an employee. See Aug. 13 Tr.
at 12:11-19 (Marcus). UNM noted that “[t]here is no ground for a private . . . cause of action[] to
result in the pulling of federal funding” as Dr. Rivero contends. Aug. 13 Tr. at 13:11-14
(Marcus).

See id. at 13:9-17 (Marcus)(citing Greater L.A. Council on Deafness v. Cmty.

Television of S. Cal., 719 F.2d 1017, 1022 (9th Cir. 1983)). UNM also posited that, while the
Court has some relationship with two individuals on the Board of Regents, the Court does not
have a relationship with the “Board of Regents as a whole.” Aug. 13 Tr. at 14:16 (Marcus). See
id. at 14:14-16 (Marcus). UNM did not believe that the case would have any impact on these
individuals of the Board of Regents, so UNM argued there is no conflict of interest based on
these passing social ties. See Aug. 13 Tr. at 14:20-15:9 (Marcus).

- 141 -

Dr. Rivero responded that he is not trying to manipulate the judicial process. See Aug.
13 Tr. at 16:22-25 (Norvell). Dr. Rivero asserted that he is properly asking for recusal under 28
U.S.C. § 455(a) and that, while “[t]imeliness can be a consideration,” Aug. 13 Tr. at 16:8
(Norvell), where “a disqualifying circumstance appears,” Aug. 13 Tr. at 16:5-6 (Norvell), the
judge must recuse, see Aug. 13 Tr. at 16:4-7 (Norvell). Dr. Rivero noted that he filed the
Recusal Motion before the Court made any decision, during a time when the Court was
preoccupied with a criminal case in July. See Aug. 13 Tr. at 16:16-23 (Norvell). Dr. Rivero
underscored that the question is not of the Court’s reputation, but of objective perspective -whether an objective, reasonable person would view the facts as requiring disqualification under
28 U.S.C. § 455(a). See Aug. 13 Tr. at 16:25-17:13 (Norvell). Dr. Rivero reasserted that the
Court has an employment relationship with UNM and, with this case being about Dr. Rivero’s
employment relationship with UNM, recusal is warranted. See Aug. 13 Tr. at 17:25-18:5
(Norvell). Finally, Dr. Rivero asked that the Court review United States v. Moskovits, 866 F.
Supp. 178 (E.D. Pa. 1994)(Pollak, J.), because the judge occasionally taught at the University of
Pennsylvania and, after the school initiated disciplinary proceedings against the criminal
defendant, its student, the judge recused. See Aug. 13 Tr. at 18:6-22 (Norvell).
The Court indicated that it will likely deny the Recusal Motion, but that it will “take a
hard look at it, [and] review all those cases.” Aug. 13 Tr. at 19:9-10 (Court). See id. at 19:4-10
(Court). The Court reminded the parties that it had closely examined the issue with its law clerks
before it sent the Disclosure Letters “and had decided that no more than a disclosure would be

- 142 -

appropriate here,” because “there was not a conflict that required [the Court] to recuse.” Aug. 13
Tr. at 19:13-15 (Court). See id. at 19:11-15 (Court). The Court stated that it “welcomed any
questions or anything at that time [it sent the Disclosure Letters], but [it] had made a
determination.” Aug. 13 Tr. at 19:16-17 (Court). The Court posited that it has not had a
problem with its relationship with UNM in past cases, which “lends a lot of support to the fact
that objectively people have looked at these facts and had not had any problem.” Aug. 13 Tr. at
19:21-23 (Court). The Court underscored that it would not characterize its relationship with
UNM as “anything other than an employment relationship.” Aug. 13 Tr. at 19:25-20:1 (Court).
The Court stated that, “after [it] made this many disclosures, d[id] the additional work of making
sure that [Courtroom Deputy Clerk] Ms. Bevel called everybody before the hearing so that there
was plenty of time, I simply can’t . . . run the Court this way.” Aug. 13 Tr. at 20:21-25 (Court).
The Court stated that it is not appropriate to file a motion to recuse after it worked hard in
advance of the hearing and gave a preliminary ruling at the hearing, which it knows upset
Dr. Rivero. See Aug. 13 Tr. at 20:25-21:6 (Court). The Court posited that any problem needed
to be raised before the hearing, but underscored its belief that there is not an objective problem
here. See Aug. 13 Tr. at 21:9-13 (Court). The Court noted that many other United States Judges
for the District of New Mexico have ties with UNM, and so the Court’s recusal from this case
may mean no other judge in the District of New Mexico can take cases involving UNM. See
Aug. 13 Tr. at 22:1-18 (Court). Finally, the Court posited that it has an obligation to keep and
decide cases if there is no basis for recusal. See Aug. 13 Tr. at 22:19-22 (Court).

- 143 -

21.

The Order.

The Court entered the Order, filed September 24, 2018 (Doc. 211)(“Order”), which rules
on UNM’s MSJ, Rivero’s MSJ, the Complaints MIL, the Psychological MIL, and the Recusal
Motion, but states that the Court will “issue a Memorandum Opinion at a later date more fully
detailing its rationale for this decision.” Order at 1 n.1. See id. at 1-2. In the Order, the Court
first concludes that the statute of limitations bars Dr. Rivero’s medical inquiry claim. See Order
at 4. The Court also determines that the four-part psychiatric evaluation requirement is jobrelated and consistent with business necessity and, therefore, permissible. See Order at 5-6.
Concluding that Dr. Rivero was not constructively discharged and that any retaliation claim must
fail, the Court finds summary judgment for UNM on all of Dr. Rivero’s claims proper. See
Order at 6.
The Court does not rule on Rivero’s MSJ or the Psychological MIL, because its grant of
summary judgment for UNM moots those motions. See Order at 6. The Court rules on the
Complaints MIL, because “it touches on what the Court may properly consider in deciding
UNM’s MSJ,” and denies it. Order at 6. The Court concludes the older complaints “provide
Dr. Rivero’s full employment history at UNM and are relevant to the question of whether UNM
reasonably doubted Dr. Rivero’s ability to professionally interact with patients and co-workers.”
Order at 6. Finally, the Court denies the Recusal Motion, concluding that there is no reasonable
question of the Court’s impartiality. See Order at 7.

- 144 -

LAW REGARDING STATING AFFIRMATIVE DEFENSES
Rule 8(c) of the Federal Rules of Civil Procedure provides:
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively
state any avoidance or affirmative defense, including:
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and

- 145 -

• waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense
as a counterclaim, or a counterclaim as a defense, the court must, if justice
requires, treat the pleading as though it were correctly designated, and may
impose terms for doing so.
Fed. R. Civ. P. 8(c). “[A] responsive pleading must set forth certain enumerated substantive
defenses as well as ‘any other matter constituting an avoidance or affirmative defense.’” 5
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1270, at 557-58 (3d ed.
2004)(quoting a prior version of rule 8(c)). Modeled after the English and New York rules in
force when the Federal Rules of Civil Procedure first were drafted, see Judicature Act (The
Annual Practice, 1937) O.19, r. 15; N.Y.C.P.A. (1937) § 242, rule 8(c) makes no attempt to
define the concept of affirmative defense. Instead, it obligates defendants to plead affirmatively
any of nineteen defenses that rule 8(c)(1) lists that the defendant wishes to assert. See Fed. R.
Civ. P. 8(c). If the district court or jury hearing a case accepts the defendant’s affirmative
defense, the defense defeats the plaintiff’s claim. See Rural Water Dist. No. 2 v. City of
Glenpool, 698 F.3d 1270, 1274 (10th Cir. 2012)(“[O]nce the court’s jurisdiction has been
properly invoked in the plaintiff’s complaint, the assertion of such a defense is relevant only to
whether the plaintiff can make out a successful claim for relief, and not to whether the court has
original jurisdiction over the claim itself.” (internal quotation marks omitted)(quoting S. New
England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010))); 5 Wright & Miller,
supra, § 1270, at 561. The burden of proof for affirmative defenses generally rests on the
defendant. See Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 5 n.8 (1st Cir. 2001); Schleibaum

- 146 -

v. Kmart Corp., 153 F.3d 493, 501 (7th Cir. 1998). In stating affirmative defenses, defendants
do not need to provide “factual support.”

Lane v. Page, 272 F.R.D. 581, 594 (D.N.M.

2011)(Browning, J.). In Lane v. Page, the Court “declin[ed] to extend the heightened pleading
standard the Supreme Court established in Bell Atlantic v. Twombly[, 550 U.S. 544 (2007)] and
Ashcroft v. Iqbal[, 556 U.S. 662 (2009),] to affirmative defenses pled in answers, because the
text of the rules, and the functional demands of claims and defenses, militate against requiring
factual specificity in affirmative defenses.” Lane v. Page, 272 F.R.D. at 588.100
Although affirmative defenses must generally be pled in the defendant’s answer, not
argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions: (i) where the
defendant asserts an immunity defense -- the courts handle these cases differently than other
motions to dismiss, see Glover v. Gartman, 899 F. Supp. 2d 1115, 1137-41 (D.N.M.
2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009)); Robbins v. Oklahoma,
519 F.3d 1242, 1249 (10th Cir. 2008)(McConnell, J.)); and (ii) where the facts establishing the
affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345
F.2d 891, 893 (10th Cir. 1965)(“Under Rule 12(b), a defendant may raise an affirmative defense
100

The Court has stated that “[a] reservation of unpled defenses is not a defense of any
kind, much less an affirmative one.” Lane v. Page, 272 F.R.D. at 601 (internal quotation marks
omitted)(quoting Fogel v. Linnemann (In re Mission Bay Ski & Bike, Inc.), Nos. 07 B 20870, 08
A 55, 2009 WL 2913438, at *5 (Bankr. N.D. Ill. Sept. 9, 2009)). The Court has since retreated
from this holding, because it does not want to encourage motions to strike such a defense. See
Tavasci v. Cambron, No. CIV 16-0461 JB/LF, 2016 WL 6405896 (D.N.M. Oct. 25,
2016)(Browning, J.). A motion to strike a reservation of defenses does not advance the ball of
litigation. Further, “[w]here a defendant reserves unpled defen[s]es yet also agrees to comply
with rule 15, . . . a motion to strike may be appropriate.” Tavasci v. Cambron, 2016 WL
6405896, at *18.

- 147 -

by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face
of the complaint itself, the motion may be disposed of under this rule.” (citation omitted)). The
defense of limitations is the affirmative defense that the complaint’s uncontroverted facts will
most likely establish. See 5 Wright & Miller, supra, § 1277, at 643. If the complaint sets forth
dates that appear, in the first instance, to fall outside of the statutory limitations period, then the
defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R., 225 F.2d
272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945); Andrew
v. Schlumberger Tech. Corp., 808 F. Supp. 2d 1288, 1292 (D.N.M. 2011)(Browning, J.). The
plaintiff may counter this motion with an assertion that a different statute of limitations or an
equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not
clarified whether this assertion must be pled with supporting facts in the complaint or may be
merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir.
1954)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of
limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead,
either in the complaint or in amendments to it, facts establishing an exception to the affirmative
defense). It appears, from caselaw in Courts of Appeals, that the plaintiff may avoid this
problem altogether -- at least at the motion-to-dismiss stage -- by simply refraining from
pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th
Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. City of New
York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, No. CIV-08-140-W, 2008 WL

- 148 -

3833472 (W.D. Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely
addressed this practice, the Court has permitted this avoidance practice, see Anderson Living Tr.
v. WPX Energy Prod., LLC, 27 F. Supp. 3d 1188, 1208-09, 1234-38 (D.N.M.
2014)(Browning, J.).
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(citing Williams
v. Meese, 926 F.3d 994, 997 (10th Cir. 1991)). A court may also consider documents to which
the complaint refers, if their adequacy is central to the plaintiffs’ claims and their authenticity is
unquestioned. See Armstrong v. N.M. Disability Det. Servs., 278 F. Supp. 3d 1193, 1201 n.3
(D.N.M. 2017)(Browning, J.)(concluding that the court properly considered notices attached to
the motion and not to the complaint, because the complaint referenced them, their adequacy was
central to the plaintiffs’ claims, and their authenticity was unquestioned). See also GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(“[I]f a plaintiff does
not incorporate by reference or attach a document to its complaint, but the document is referred
to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably
authentic copy to the court to be considered on a motion to dismiss.”).

- 149 -

A complaint’s sufficiency is a question of law, and, when considering a rule 12(b)(6)
motion, a court must accept as true all well-pled factual allegations in the complaint, view those
allegations in the light most favorable to the non-moving party, and draw all reasonable
inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 323 (2007)(“[O]nly ‘[i]f a reasonable person could not draw . . . an inference [of
plausibility] from the alleged facts’ would the defendant prevail on a motion to dismiss.”
(second alteration in Tellabs, Inc. v. Makor Issues & Rights, Ltd.)(quoting Makor Issues &
Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 602 (7th Cir. 2006))); Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept
as true all well-pleaded factual allegations in a complaint and view these allegations in the light
most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006))).

At the motion-to-dismiss stage, the court does not weigh the evidence, and “is

interested only in whether it has jurisdiction and whether the [p]laintiffs plead a claim to relief
that is plausible on its face.” Begay v. Pub. Serv. Co. of N.M., 710 F. Supp. 2d 1161, 1199
(D.N.M. 2010)(Browning, J.).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is
insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

- 150 -

Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation and footnote omitted).
See Duncan v. Citibank (S.D.), N.A., No. CIV 06-0246 JB/KBM, 2006 WL 4063021, at *3
(D.N.M. June 30, 2006)(Browning, J.)(dismissing a civil Racketeer Influenced and Corrupt
Organizations Act (“RICO”) cause of action from a complaint where the complaint alleged a
single physical act, and not a pattern of racketeering activity, and a pattern of activity is one of
the elements required to state a RICO claim).
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that,
if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

“Thus, the mere

metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complainant must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). A court will
not construe a plaintiff’s pleadings “so liberally that it becomes his advocate.” Bragg v. Chavez,

- 151 -

No. CIV 07-0343 JB/WDS, 2007 WL 5232464, at *25 (D.N.M. Aug. 2, 2007)(Browning, J.).
The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the
line from conceivable to plausible.” The allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.
Robbins v. Oklahoma, 519 F.3d at 1247 (citation omitted)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 570)(internal citations omitted).

See Gallegos v. Bernalillo Cty. Bd. of Cty.

Comm’rs, 278 F. Supp. 3d 1245, 1259 (D.N.M. 2017)(Browning, J.).
Generally, the sufficiency of a complaint must rest on its contents alone. See Casanova
v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010); Gossett v. Barnhart, 139 F. App’x 24, 25 (10th
Cir. 2005)(unpublished)(“In ruling on a motion to dismiss, the district court is limited to the facts
pled in the complaint.”).101 Emphasizing this point, the Tenth Circuit, in Carter v. Daniels, 91 F.

101

Gossett v. Barnhart is an unpublished Tenth Circuit opinion, but the Court can rely on
an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”). The Tenth Circuit has stated: “In this circuit,
unpublished orders are not binding precedent, . . . and . . . citation to unpublished opinions is not
favored. However, if an unpublished opinion . . . has persuasive value with respect to a material
issue in a case and would assist the court in its disposition, we allow a citation to that decision.”
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
concludes that Gossett v. Barnhart, 139 F. App’x 24 (10th Cir. 2005), Carter v. Daniels, 91 F.
App’x 83 (10th Cir. 2004), Nard v. City of Oklahoma City, 153 F. App’x 529 (10th Cir. 2005),
Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006), Scherer v. United States Department of
Education, 78 F. App’x 687 (10th Cir. 2003), Jones v. United States, 355 F. App’x 117 (10th Cir.
2009), Poche v. Joubran, 389 F. App’x 768 (10th Cir. 2010), Wallace v. United States, 372 F.
App’x 826 (10th Cir. 2010), Employers’ Mutual Casualty Co. v. Bartile Roofs, Inc., 478 F.

- 152 -

App’x 83 (10th Cir. 2004)(unpublished), states: “When ruling on a Rule 12(b)(6) motion, the
district court must examine only the plaintiff’s complaint. The district court must determine if
the complaint alone is sufficient to state a claim; the district court cannot review matters outside
of the complaint.” 91 F. App’x at 85 (internal quotation marks omitted)(quoting Jackson v.
Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991)). There are three limited exceptions to this
general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) “documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and
(iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1104 (10th Cir. 2017)(holding that the district court did not err by reviewing a seminar recording
and a television episode on a rule 12(b)(6) motion, which were “attached to or referenced in the
App’x 493 (10th Cir. 2012), Anderson v. Clovis Municipal Schools, 265 F. App’x 699 (10th Cir.
2008), Robinson v. Cavalry Portfolio Services, LLC, 365 F. App’x 104 (10th Cir. 2010),
Vidacak v. Potter, 81 F. App’x 721 (10th Cir. 2003), Baltazar v. Shinseki, 485 F. App’x 941
(10th Cir. 2012), Detterline v. Salazar, 320 F. App’x 853 (10th Cir. 2009), Corley v. Department
of Veterans Affairs ex rel. Principi, 218 F. App’x 727 (10th Cir. 2007), Premratananont v. South
Suburban Park & Recreation District, 149 F.3d 1191, 1998 WL 211543 (10th Cir. 1998), Dye v.
Moniz, 672 F. App’x 836 (10th Cir. 2016), Mitchell v. City of Wichita, 140 F. App’x 767 (10th
Cir. 2005)(Browning, J.), Showalter v. Weinstein, 233 F. App’x 803 (10th Cir. 2007), Pierce v.
Amaranto, 276 F. App’x 788 (10th Cir. 2008), Iselin v. Bama Cos., 690 F. App’x 593 (10th Cir.
2017), United States v. Guthrie, 184 F. App’x 804 (10th Cir. 2006), Levy v. Levitt, 3 F. App’x
944 (10th Cir. 2001), Trujillo v. Board of Education of Albuquerque Public Schools, 212 F.
App’x 760 (10th Cir. 2007), and Anderson v. Academy School District 20, 122 F. App’x 912
(10th Cir. 2004), have persuasive value with respect to a material issue, and will assist the Court
in its disposition of this Memorandum Opinion and Order.

- 153 -

amended complaint,” central to the plaintiff’s claim, and “undisputed as to their accuracy and
authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as
well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560,
568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955
(10th Cir. 2001).
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their
motion with numerous documents, and the district court cited portions of those motions in
granting the motion.” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was
improper” and that, even if “the district court did not err initially in reviewing the materials, the
court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the
motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit
has emphasized that, “[b]ecause the district court considered facts outside of the complaint . . . it
is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard
v. City of Okla. City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished). In Douglas v.
Norton, 167 F. App’x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an
untimely filed charge with the EEOC -- which contains time limitations that the Tenth Circuit
analogized to a statute of limitations -- and concluded that, because the requirement is not
jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and
“because the district court considered evidentiary materials outside of Douglas’ complaint, it
should have treated Norton’s motion as a motion for summary judgment.” 167 F. App’x at 705.

- 154 -

The Court has previously ruled that, when a plaintiff references and summarizes the
defendants’ statements in a complaint, the Court cannot rely on documents containing those
statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No.
CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The
Court reasoned that the statements were neither incorporated by reference nor central to the
plaintiff’s allegations in the complaint, because the plaintiff cited the statements only to attack
the defendant’s reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has
also previously ruled that, when determining whether to toll a statute of limitations in an action
alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and
letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant’s
alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 111129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning,
J.)(“Crabtree”). The Court in Crabtree determined that the documents did not fall within any of
the Tenth Circuit’s exceptions to the general rule that a complaint must rest on the sufficiency of
its contents alone, as the complaint did not incorporate the documents by reference or refer to the
documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL
312881, at *50 (refusing to consider statements that were not “central to [the plaintiff’s]
claims”).
On the other hand, in a securities class action and as an exception to the general rule, the
Court has concluded that the Court may consider a defendant’s operating certification, to which

- 155 -

plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately
alleged a loss, when ruling on the defendant’s motion to dismiss without converting the motion
into one for summary judgment. See Genesee Cty. Emps.’ Ret. Sys. v. Thornburg Mortg. Secs.
Tr. 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See also SEC v.
Goldstone, 952 F. Supp. 2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a
motion to dismiss, emails referenced in the complaint as “documents referred to in the
complaint,” which are “central to the plaintiff’s claim” and whose authenticity the plaintiff did
not challenge); Mata v. Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M. 2009)(Browning,
J.)(relying on documents outside of the complaint because they were “documents that a court can
appropriately view as either part of the public record, or as documents upon which the Complaint
relies, and the authenticity of which is not in dispute”).
LAW REGARDING MOTIONS TO STRIKE
Rule 12(f) of the Federal Rules of Civil Procedures provides:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter. The court may
act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or,
if a response is not allowed, within 21 days after being served with the
pleading.
Fed. R. Civ. P. 12(f). Professors Charles Alan Wright and Arthur Miller have recognized,
however, that such motions are not favored and, generally, the court should deny them:

- 156 -

The district court possesses considerable discretion in disposing of a Rule 12(f)
motion to strike redundant, impertinent, immaterial, or scandalous matter.
However, because federal judges have made it clear, in numerous opinions they
have rendered in many substantive contexts, that Rule 12(f) motions to strike on
any of these grounds are not favored, often being considered purely cosmetic or
“time wasters,” there appears to be general judicial agreement, as reflected in the
extensive case law on the subject, that they should be denied unless the
challenged allegations have no possible relation or logical connection to the
subject matter of the controversy . . . .
5C Wright & Miller, supra, § 1382, at 433-36 (footnotes omitted). Accord Burget v. Capital W.
Sec., Inc., No. CIV-09-1015-M, 2009 WL 4807619, at *1 (W.D. Okla. Dec. 8, 2009)(MilesLaGrange, J.)(“While motions to strike are generally disfavored, the decision to grant a motion
to strike is within the discretion of the court.” (citing Scherer v. U.S. Dep’t of Educ., 78
F. App’x 687, 689 (10th Cir. 2003)(unpublished))).
“Allegations will not be stricken as immaterial under this rule unless they have no
possible bearing on the controversy.” Estate of Gonzales v. AAA Life Ins., No. CIV 11-0486
JB/WDS, 2012 WL 1684599, at *5 (D.N.M. May 8, 2012)(Browning, J.)(internal quotation
marks omitted)(quoting Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No.
09-CV-0455-CVE-FHM, 2010 WL 132414, at *5 (N.D. Okla. Jan. 8, 2010)(Eagan, J.)). “The
Court must be convinced that there are no questions of fact, that any questions of law are clear
and not in dispute, and that under no set of circumstances could the defenses succeed.” Friends
of Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp. 1333, 1343 (D.N.M. 1995)(Hansen,
J.)(internal quotation marks omitted)(quoting Carter Wallace, Inc. v. Riverton Labs., Inc., 47
F.R.D. 366, 368 (S.D.N.Y. 1969)(Cannella, J.).

- 157 -

Professors Wright and Miller have also

commented on what constitutes “immaterial” matter in the context of a motion to strike. 5C
Wright & Miller, supra, § 1382, at 458-60 (footnotes omitted). “‘Immaterial’ matter is that
which has no essential or important relationship to the claim for relief or the defenses being
pleaded, or a statement of unnecessary particulars in connection with and descriptive of that
which is material.” 5C Wright & Miller, supra, § 1382, at 458-60 (footnotes omitted).
Moreover, “[o]nly material included in a ‘pleading’ may be the subject of a motion to
strike, and courts have been unwilling to construe the term broadly.

Motions, briefs,

. . . memoranda, objections, or affidavits may not be attacked by the motion to strike.” Dubrovin
v. Ball Corp. Consol. Welfare Benefit Plan for Emps., No. 08-cv-00563-WYD-KMT, 2009 WL
5210498, at *1 (D. Colo. Dec. 23, 2009)(Daniel, J.)(internal quotation marks omitted)(quoting 2
James Wm. Moore et al., Moore’s Federal Practice § 12.37[2] (3d ed. 2004)). Accord Ysais v.
N.M.

Judicial

Standard

Comm’n,

616

F.

Supp.

2d

1176,

1184

(D.N.M.

2009)(Browning, J.)(“Ysais”)(“Generally . . . motions, briefs, and memoranda may not be
attacked by a motion to strike.” (citing Searcy v. Soc. Sec. Admin., 956 F.2d 278, 1992 WL
43490, at *1, *4 (10th Cir. 1992)(unpublished table opinion))). “The Federal Rules of Civil
Procedure define ‘pleadings’ as a complaint or third-party complaint; an answer to a complaint, a
third-party complaint, a counterclaim, or a crossclaim; and, ‘if the court orders one, a reply to an
answer.’” Ysais, 616 F. Supp. 2d at 1184 (quoting Fed. R. Civ. P. 7(a)).
“Striking a pleading or part of a pleading is ‘a drastic remedy and because a motion to
strike may often be made as a dilatory tactic, motions to strike under Rule 12(f) generally are

- 158 -

disfavored.’” Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., 2010 WL
132414, at *5 (quoting Burget v. Capital W. Sec. Inc., 2009 WL 4807619, at *1).

“The

exception to this principle is that a Court may ‘choose to strike a filing that is not allowed by
local rule, such as a surreply filed without leave of court.’” Ysais, 616 F. Supp. 2d at 1184
(quoting Superior Prod. P’ship v. Gordon Auto Body Parts Co., No. 2:06-cv-0916, 2008 WL
2230774, at *1 (S.D. Ohio May 28, 2008)(Kemp, J.); and citing In re Hopkins, 162 F.3d 1173,
1998 WL 704710, at *3 (10th Cir. 1998)(unpublished table opinion)).
For example, in Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS,
2012 WL 6846386 (D.N.M. Dec. 31, 2012)(Browning, J.), the Court denied a motion to strike a
letter filed with the Court, because the letter was not a pleading, and did not pertain to either
party’s legal defenses or arguments; the letter expressed one party’s position regarding whether
the Court should rule on summary judgment motions pending at the close of a bench trial. See
2012 WL 6846386, at *6. Similarly, in Crabtree, the Court denied a plaintiff’s motion to strike
exhibits attached to the defendant’s motion to dismiss, because they were neither pleadings nor
irrelevant. See 2012 WL 3656500, at *18. In Applied Capital, Inc. v. Gibson, No. CIV 05-0098
JB/ACT, 2007 WL 5685131 (D.N.M. 2007)(Browning, J.), the Court refused the plaintiff’s
request to strike a motion to dismiss, because rule 12(f) applies only to pleadings and not to a
motion to dismiss. See 2007 WL 5685131, at *18. In Estate of Anderson v. Denny’s, Inc., 291
F.R.D. 622, 635 (D.N.M. 2013)(Browning, J.), the Court denied the plaintiff’s request to strike a
notice of completion of briefing for similar reasons. See 291 F.R.D. at 635.

- 159 -

In Lane v. Page, the plaintiff filed a motion to strike parts of the defendants’ answer,
because it was “devoid of factual allegations and assert[ed] improper defenses.” 272 F.R.D. at
588. Specifically, the plaintiff argued that the defendants’ affirmative defenses should “put
plaintiff on notice of how the defense applies.” 272 F.R.D. at 588 (internal quotation marks and
citation omitted).

The plaintiff therefore asked the Court not only to strike some of the

defendants’ answers, but also to “require the Defendants to amend their answers.” 272 F.R.D. at
588. The defendants argued “that rule 8 does not require them to provide factual support for
their affirmative defenses” and contended that their answers adequately responded to the
plaintiff’s complaint. 272 F.R.D. at 588. The Court “decline[d] to extend the heightened
pleading standard the Supreme Court established in Bell Atlantic v. Twombly and Ashcroft v.
Iqbal to affirmative defenses pled in answers, because the text of the rules, and the functional
demands of claims and defenses, militate against requiring factual specificity in affirmative
defenses.” 272 F.R.D. at 588. The Court struck two improperly labeled affirmative defenses
that stated the defendants “reserve the right to assert additional affirmative defenses.” 272
F.R.D. at 601 (internal quotation marks and citations omitted). The Court concluded that the
statement was not a defense, explaining:
“[A]n affirmative defense, under the meaning of Fed. R. Civ. P. 8(c), is a defense
that does not negate the elements of the plaintiff’s claim, but instead precludes
liability even if all of the elements of the plaintiff’s claim are proven.” Roberge v.
Hannah Marine Corp., [No. 96–1691,] 1997 WL 468330, at *3 [(6th Cir. 1997)].
“A reservation of unpled defenses is not a defense of any kind, much less an
affirmative one.” Mission Bay Ski & Bike, [Nos. 07 B 20870, 08 A 66], 2009 WL
2913438, at *5 [(Bankr. N.D. Ill. Sept. 9, 2009)].

- 160 -

Lane v. Page, 272 F.R.D. at 601. In Tavasci v. Cambron, No. CIV 16-0461 JB/LF, 2016 WL
6405896 (D.N.M. Oct. 25, 2016)(Browning, J.), the Court retreated some from that holding,
however, because it did not want to encourage such motions, which do not advance the ball in a
case. The Court refused to strike a reservation of defenses “[w]here a defendant reserves unpled
defen[s]es yet also agrees to comply with rule 15,” because “the Court cannot conclude that
‘under no set of circumstances’ would the reservation of unpled defenses prevail.” 2016 WL
6405896, at *18 (quoting Friends of Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp. 1333,
1343 (D.N.M. 1995)(Hansen, J.)(citations omitted)).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving
party’s case.’”

Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.

2013)(Browning, J.)(alteration in Herrera v. Santa Fe Pub. Sch.)(quoting Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)(“Celotex”).
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting
evidence into the record that affirmatively disproves an element of the nonmoving
party’s case, or by directing the court’s attention to the fact that the non-moving
party lacks evidence on an element of its claim, “since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders

- 161 -

all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for
which it bears the burden of proof at trial, the nonmovant “must go beyond the
pleadings and designate specific facts to make a showing sufficient to establish
the existence of an element essential to his case in order to survive summary
judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal
quotations and brackets omitted).
Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence -- using any of the materials specified
in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex,
477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).102 Once the movant meets this
burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a
genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)(“Liberty Lobby”).

In American Mechanical Solutions, LLC v. Northland

Piping, Inc., 184 F. Supp. 3d 1030 (D.N.M. 2016)(Browning, J.), the Court granted summary
judgment for the defendant when the plaintiff did not offer expert evidence supporting causation
or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-ofmerchantability claims. See 184 F. Supp. 3d at 1075-78. The Court reasoned that the plaintiff
could prove neither the breach-of-contract claim’s causation requirement nor the breach-of-the-

102

Although the Honorable William J. Brennan, Jr., then-Associate Justice of the
Supreme Court, dissented in Celotex, this sentence is widely understood to be an accurate
statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure § 2727, at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the
majority and dissent both agreed as to how the summary-judgment burden of proof operates;
they disagreed as to how the standard was applied to the facts of the case.”).

- 162 -

implied-warranty-of-merchantability claim’s proximate-causation requirement with mere
common knowledge, and so New Mexico law required that the plaintiff bolster its arguments
with expert testimony, which the plaintiff had not provided. See 184 F. Supp. 3d at 1067, 1073,
1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove
“an essential element of the nonmoving party’s case,” rendering “all other facts immaterial.”
184 F. Supp. 3d at 1075 (internal quotation marks omitted)(quoting Plustwik v. Voss of Nor.
ASA, 2013 WL 1945082, at *1). Thus, if a plaintiff has the burden of proof, and the plaintiff has
no competent evidence, the defendant may move, without any competent evidence itself, past the
plaintiff’s lack of competent evidence, and secure summary judgment. See, e.g., Celotex, 477
U.S. at 323-25 (providing that summary judgment is proper where a plaintiff lacks evidence on
an essential element of its case); Am. Mech. Sols., LLC v. Northland Piping, Inc., 184 F. Supp.
3d at 1075 (granting summary judgment because plaintiff lacked evidence on causation);
Morales v. E.D. Entyre & Co., 382 F. Supp. 2d 1252, 1272 (D.N.M. 2005)(Browning,
J.)(granting summary judgment because plaintiff lacked competent evidence that defendants
defectively manufactured an oil distributor). A conclusory assertion that the plaintiff lacks
evidence is insufficient, however, to secure summary judgment; the defendant must make some
evidentiary showing that the plaintiff lacks competent evidence. See Halley v. Huckaby, 902
F.3d 1136, 1143 (10th Cir. 2018)(stating that summary judgment may be warranted if the
movant notes a lack of evidence for an essential element of the claim). See also 11 James Wm.
Moore et al., Moore’s Federal Practice § 56.40[1][b][iv], at 56-109 to -111 (3d ed. 2018).

- 163 -

The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238,
1241 (10th Cir. 1990).

See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th

Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth
specific facts showing that there is a genuine issue for trial as to those dispositive matters for
which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1)
provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .”
Fed. R. Civ. P. 56(c)(1)(A). It is not enough for the party opposing a properly supported motion
for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby,
477 U.S. at 259. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990);
Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported
summary judgment motion is made, the opposing party may not rest on the allegations contained
in his complaint, but must respond with specific facts showing the existence of a genuine factual
issue to be tried.” (citation and internal quotation marks omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. 07-2123-JAR,

- 164 -

2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo
v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(McConnell,
J.)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of
facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope
that something will turn up at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1
(quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary
judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248).
Rather, there must be sufficient evidence on which the fact finder could reasonably find for the
nonmoving party.

See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin

Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)(“Schuylkill”); Vitkus v.
Beatrice Co., 11 F.3d at 1539. “[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is
merely colorable or is not significantly probative, summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record
as a whole, cannot find for the nonmoving party, “there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quoting First Nat’l
Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968)).

- 165 -

When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving
party’s favor, and construe all evidence in the light most favorable to the nonmoving party. See
Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
(citation omitted)). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby,
477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is
appropriate where video evidence quite clearly contradicted the plaintiff’s version of the facts.
See 550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for

- 166 -

the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote
omitted). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible
fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (alterations in Scott v. Harris)(emphasis in Liberty Lobby).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the
litigation, a plaintiff’s version of the facts must find support in the record: more
specifically, “[a]s with any motion for summary judgment, ‘[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts[.]’” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th
Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel.
Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second alteration in Thomson v. Salt Lake Cty.,
third and fourth alterations in York v. City of Las Cruces). “The Tenth Circuit, in Rhoads v.
Miller, [352 F. App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),] explained that the
blatant contradictions of the record must be supported by more than other witnesses’

- 167 -

testimony[.]”

Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M.

2010)(Browning, J.), aff’d, 499 F. App’x 771 (10th Cir. 2012).
LAW REGARDING HEARSAY
“Hearsay testimony is generally inadmissible.” United States v. Christy, No. CR 10-1534
JB, 2011 WL 5223024, at *5 (D.N.M. Sept. 21, 2011)(Browning, J.)(citing Fed. R. Evid. 802).
Rule 801(c) of the Federal Rules of Evidence provides: “‘Hearsay’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.
801(c).

Hearsay bars a party from presenting its own statements, such as “a

defendant . . . attempt[ing] to introduce an exculpatory statement made at the time of his arrest
without subjecting himself to cross-examination.” United States v. Cunningham, 194 F.3d 1186,
1199 (11th Cir. 1999). A statement that is otherwise hearsay, however, may be offered for a
permissible purpose other than to prove the truth of the matter asserted, including impeaching a
witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008)(“We have already
explained why the content of the statement, if used substantively, would be inadmissible hearsay.
If admitted for impeachment purposes, however, it is not hearsay.”).
Hearsay is generally unreliable and untrustworthy. See Chambers v. Mississippi, 410
U.S. 284, 298 (1973)(noting that hearsay is generally untrustworthy and lacks traditional indicia
of reliability); United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)(“Hearsay is
generally inadmissible as evidence because it is considered unreliable.” (citing Williamson v.

- 168 -

United States, 512 U.S. 594, 598 (1994))); United States v. Console, 13 F.3d 641, 656 (3d. Cir.
1993)(stating hearsay is “inherently untrustworthy” because of the lack of an oath, presence in
court, and cross examination (quoting United States v. Pelullo, 964 F.2d 193, 203 (3rd Cir.
1992))). Testimonial proof is necessarily based upon the human senses, which can be unreliable.
See 5 Jack Weinstein & Margaret Berger, Weinstein’s Federal Evidence § 802.02[1][b], at 802-5
(Joseph McLaughlin ed., 2d ed. 2017)(“Weinstein’s Federal Evidence”). The Anglo-American
tradition uses three devices to illuminate inaccuracies in the testimonial proof: (i) the oath;
(ii) personal presence at trial; (iii) and cross examination. See Weinstein’s Federal Evidence
§ 802.02[2][a], at 802-5. It is difficult to evaluate the credibility of out-of-court statements when
the three safeguards mentioned above are unavailable.

See Weinstein’s Federal Evidence

§ 802.02[3], at 802-6 to -7. Courts view hearsay evidence as unreliable because it is not subject
to an oath, personal presence in court, or cross examination. See, e.g., United States v. Console,
13 F.3d at 656.
“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the
combined statements conforms with an exception to the rule.” Fed. R. Evid. 805. See, e.g.,
United States v. DeLeon, 316 F. Supp. 3d 1303, 1306 (D.N.M. 2018)(Browning, J.)(noting that a
hearsay within hearsay issue remains after concluding that 803(8) provided an exception for law
enforcement reports); Wood v. Millar, No. CIV 13-0923 RB/CG, 2015 WL 12661926, at *4
(D.N.M. Feb. 19, 2015)(Brack, J.)(noting that witness statements in police reports may be
admissible under hearsay exclusions other than 803(8)).

- 169 -

LAW REGARDING MOTIONS TO RECONSIDER
Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall
into three categories. First, there are motions to reconsider “filed within [twenty-eight] days of
the entry of judgment,” which are “treated as a motion to alter or amend the judgment under rule
59(e)” of the Federal Rules of Civil Procedure. Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D.
453, 462 (D.N.M. 2009)(Browning, J.). See N.M. Health Connections v. U.S. Dep’t of Health &
Human Servs., 340 F. Supp. 3d 1112, 1164-75 (D.N.M. 2018)(Browning, J.)(denying motion to
reconsider under rule 59(e)). Second, there are motions to reconsider “filed more than [twentyeight] days after judgment,” which are “considered a motion for relief from judgment under rule
60(b)” of the Federal Rules of Civil Procedure. Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. at
462. See Kruskal v. Martinez, No. CIV 16-1075 JB/SCY, 2018 WL 3972910, at *9 (D.N.M.
Aug. 18, 2018)(Browning, J.)(denying motion to reconsider under rule 60(b)). Finally, there are
motions to reconsider “any order that is not final,” which are treated as “a general motion
directed at the Court’s inherent power to reopen any interlocutory matter in its discretion.”
Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. at 462. See Price v. Philpot, 420 F.3d 1158, 1167
& n.9 (10th Cir. 2005); Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292,
1296 n.3 (10th Cir. 2002). See also United States v. Loera, 182 F. Supp. 3d 1173, 1218-30
(D.N.M. 2016)(Browning, J.)(denying motion to reconsider rulings on a motion to suppress).

- 170 -

1.

Motions for Reconsideration Under Rules 59(e) and 60(b).

Courts may treat motions for reconsideration as a rule 59(e) motion when the movant
files within twenty-eight days of a court’s entry of judgment. See Price v. Philpot, 420 F.3d at
1167 n.9. If the movant files outside that time period, courts should treat the motion as seeking
relief from judgment under rule 60(b). See Price v. Philpot, 420 F.3d at 1167 n.9. “[A] motion
for reconsideration of the district court’s judgment, filed within [rule 59’s filing deadline],
postpones the notice of appeal’s effect until the motion is resolved.” Jones v. United States, 355
F. App’x 117, 122 (10th Cir. 2009)(unpublished). Rule 59(e)’s time limit is now twenty-eight
days from the entry of a judgment. See Fed. R. Civ. P. 59(e).
Whether a motion for reconsideration should be considered a motion under rule 59 or rule
60 is not only a question of timing, but also “depends upon the reasons expressed by the
movant.” Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680
F.3d 1194, 1200 (10th Cir. 2011). Where the motion “involves ‘reconsideration of matters
properly encompassed in a decision on the merits,’” a court considers the motion under rule
59(e). Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)(quoting Martinez v. Sullivan,
874 F.2d 751, 753 (10th Cir. 1989)). In other words, if the reconsideration motion seeks to alter
the district court’s substantive ruling, then it should be considered a rule 59 motion and be
subject to rule 59’s constraints. See Phelps v. Hamilton, 122 F.3d at 1324. In contrast, under
rule 60,
[o]n motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:

- 171 -

(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or discharged; it is based
on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Neither a rule 59 nor a rule 60 motion for reconsideration
are []appropriate vehicles to reargue an issue previously addressed by the court
when the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion. . . . Grounds warranting a motion to
reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “[A] motion for
reconsideration is appropriate where the court has misapprehended the facts, a party’s position,
or the controlling law.” Servants of the Paraclete v. Does, 204 F.3d at 1012. A district court has
considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d at
1324.
Rule 60 authorizes a district court to, “[o]n motion and just terms, . . . relieve a party or
its legal representative from a final judgment, order, or proceeding for the following reasons,”
including “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A court cannot enlarge

- 172 -

the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 348
(10th Cir. 1988)(holding that district courts lack jurisdiction over untimely rule 59(e) motions);
Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., No. CIV 11-0103 JB/WPL, 2012
WL 869000, at *2 (D.N.M. March 8, 2012)(Browning, J.)(“The Court may not extend the time
period for timely filing motions under Rule 59(e) . . . .”). “A motion under rule 59 that is filed
more than 28 days after entry of judgment may be treated as a Rule 60(b) motion for relief from
judgment.” 12 James Wm. Moore et al., Moore’s Federal Practice § 59.11[4][b], at 59-32 (3d
ed. 2012)(citations omitted). Nevertheless, a court will not generally treat an untimely rule 59(e)
motion as a rule 60(b) motion when the party is seeking “‘reconsideration of matters properly
encompassed in a decision on the merits’ contemplated by Rule 59(e).” Jennings v. Rivers, 394
F.3d 850, 854 (10th Cir. 2005)(quoting Osterneck v. Ernst & Whinney, 489 U.S. 169, 174
(1989)).
Under some circumstances, parties can rely on rule 60(b)(1) for a mistake by their
attorney or when their attorney acted without their authority. See Yapp v. Excel Corp., 186 F.3d
1222, 1231 (10th Cir. 1999)(“Rule 60(b)(1) motions premised upon mistake are intended to
provide relief to a party . . . when the party has made an excusable litigation mistake or an
attorney in the litigation has acted without authority . . . .”). Mistake in this context entails either
acting without the client’s consent or making a litigation mistake, such as failing to file or to
comply with deadlines. See Yapp v. Excel Corp., 186 F.3d at 1231. If the alleged incident
entails a mistake, then it must be excusable, meaning that the party was not at fault. See Pioneer

- 173 -

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993); Cashner v. Freedom
Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)(“If the mistake alleged is a party’s litigation
mistake, we have declined to grant relief under Rule 60(b)(1) when the mistake was the result of
a deliberate and counseled decision by the party.”); Pelican Prod. Corp. v. Marino, 893 F.2d
1143, 1146 (10th Cir. 1990)(holding that attorney carelessness is not a basis for relief under rule
60(b)(1)).
Courts will not grant relief when the mistake of which the movant complains is the result
of an attorney’s deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577.
This rule exists because a party
voluntarily chose [the] attorney as his representative in the action, and he cannot
now avoid the consequences of the acts or omissions of this freely selected agent.
Any other notion would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of his lawyer-agent
and is considered to have “notice of all facts, notice of which can be charged upon
the attorney.”
Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962)(quoting Smith v. Ayer, 101 U.S. 320, 326
(1879)). The Tenth Circuit has held that there is nothing “novel” about “the harshness of
penalizing [a client] for his attorney’s conduct,” and has noted that “[t]hose who act through
agents are customarily bound,” even though, when “an attorney is poorly prepared to crossexamine an expert witness, the client suffers the consequences.” Gripe v. City of Enid, 312 F.3d
1184, 1189 (10th Cir. 2002).
Rule 60(b)(6) is a “grand reservoir of equitable power to do justice in a particular case.”
Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991)(internal quotation marks

- 174 -

omitted)(quoting Pierce v. Cook & Co., 518 F.2d 720, 722 (10th Cir. 1975)). “If the reasons
offered for relief from judgment could be considered under one of the more specific clauses of
Rule 60(b)(1)-(5), those reasons will not justify relief under Rule 60(b)(6).” Moore et al., supra
§ 60.48[2], at 60-182. Accord Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863
n.11 (1988)(“This logic, of course, extends beyond clause (1) and suggests that clause (6) and
clauses (1) through (5) are mutually exclusive.”). “The Rule does not particularize the factors
that justify relief, but we have previously noted that it provides courts with authority ‘adequate to
enable them to vacate judgments whenever such action is appropriate to accomplish justice,’
while also cautioning that it should only be applied in ‘extraordinary circumstances.’” Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. at 863-84 (citations omitted)(first quoting Klapprott
v. United States, 335 U.S. 601, 614-15 (1949); and then quoting Ackermann v. United States,
340 U.S. 193, 199 (1950)).
Generally, the situation must be one beyond the control of the party moving under rule
60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S. at 202 (“The comparison
[of prior precedent] strikingly points up the difference between no choice and choice;
imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for
negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has no application to the
situation of petitioner.”). Legal error that provides a basis for relief under rule 60(b)(6) must be
extraordinary, as the Tenth Circuit discussed in Van Skiver v. United States:
The kind of legal error that provides the extraordinary circumstances justifying
relief under Rule 60(b)(6) is illustrated by Pierce. In that case, this court granted

- 175 -

relief under 60(b)(6) when there had been a post-judgment change in the law
“arising out of the same accident as that in which the plaintiffs . . . were injured.”
Pierce, 518 F.2d at 723. However, when the post-judgment change in the law did
not arise in a related case, we have held that “[a] change in the law or in the
judicial view of an established rule of law” does not justify relief under Rule
60(b)(6). Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958).
952 F.2d at 1244-45 (second alteration in Van Skiver v. United States).
2.

Motions to Reconsider Interlocutory Orders.

Considerable confusion exists among the bar regarding the proper standard for a district
court to apply when ruling on a motion to reconsider one of its prior “interlocutory” or “interim”
orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a
final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure
do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a
standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v.
Does, which refers to rule 59(e) motions -- “motion[s] to alter or amend a judgment,” Fed. R.
Civ. P. 59(e) (emphasis added)(title case omitted) -- as “motions to reconsider,”103 compounds
that baseline confusion. Servants of the Paraclete v. Does, 204 F.3d at 1012.

103

The Honorable Paul J. Kelly, Jr., now-Senior United States Circuit Judge for the Tenth
Circuit, who authored Servants of the Paraclete v. Does, refers to rule 59(e) motions as “motions
to reconsider” several times throughout the opinion. E.g., 204 F.3d at 1012. He uses the term
“motion to reconsider” as an umbrella term that can encompass three distinct motions:
(i) motions to reconsider an interlocutory order, which no set standard governs, save that the
district court must decide them “before the entry of . . . [final] judgment,” Fed. R. Civ. P. 54(b);
(ii) motions to reconsider a judgment made within twenty-eight days of the entry of judgment,
which the Servants of the Paraclete v. Does standard governs; and (iii) motions to reconsider a
judgment made more than twenty-eight days after the entry of judgment, which rule 60(b)
governs. There is arguably a fourth standard for motions to reconsider filed more than a year

- 176 -

Final judgments are different from interlocutory orders.

See Fed. R. Civ. P. 54(a)

(“‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.”
(emphasis added)). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 (“The
courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district
courts . . . .”), the entry of final judgment narrows the district court’s formerly plenary
jurisdiction over the case in three ways. First, for the first twenty-eight days after the entry of
judgment, when the court can entertain motions under rules 50(b), 52(b), 59, and 60, the district
court’s jurisdiction trumps that of the Court of Appeals. See Fed. R. App. P. 4(a)(4)(B). Even if
a party files a notice of appeal, the Court of Appeals will wait until after the district court has
ruled on the post-judgment motion to touch the case. See Fed. R. App. P. 4(a)(4)(B). Second,
after twenty-eight days, when the court may consider motions under rule 60, if a party has filed a
notice of appeal, the Court of Appeals’ jurisdiction trumps the district court’s, and the district
court needs the Court of Appeals’ permission even to grant a rule 60 motion. Third, after

after the entry of judgment, as three of the rule 60(b) grounds for relief expire at that point.
Much confusion could be avoided by using the term “motion to reconsider” exclusively
to refer to the first category, “motion to amend or alter the judgment” exclusively to refer to the
second category, and “motion for relief from judgment” exclusively to refer to the third category
(and arguable fourth category). These are the terms that the Federal Rules of Civil Procedure -and other Courts of Appeals -- use to describe (ii) and (iii). The Court agrees with Judge Kelly -and all he likely meant by using motion to reconsider as an umbrella term is -- that, if a party
submits a motion captioned as a “motion to reconsider” after an entry of final judgment, the
court should evaluate it under rule 59(e) or 60(b), as appropriate, rather than rejecting it as
untimely or inappropriate.

- 177 -

twenty-eight days, if no party has filed a notice of appeal, district courts may consider motions
under rule 60.
Final judgments implicate two important concerns militating against giving district courts
free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in
finality. The parties and the lawyers expect to go home, quit obsessing about the dispute, and put
the case behind them, and the final judgment -- especially once the twenty-eight-day window of
robust district court review and the thirty-day window of appeal have both closed -- is the
disposition upon which they are entitled to rely. Second, when a case is appealed, there is the
need for a clean jurisdictional handoff from the district court to the Court of Appeals. “[A]
federal district court and a federal court of appeals should not attempt to assert jurisdiction over a
case simultaneously,” as doing so produces a “danger [that] a district court and a court of appeals
w[ill] be simultaneously analyzing the same judgment.” Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58-59 (1982)(per curiam), superseded on other grounds by statute Fed. R. App.
P. 4(a)(4).
The Court of Appeals needs a fixed record on which to base its decisions -- especially
given the collaborative nature of appellate decision-making -- and working with a fixed record
requires getting some elbow room from the district court’s continued interference with the case.
The “touchstone document” for this jurisdictional handoff is the notice of appeal, not the final
judgment, Griggs v. Provident Consumer Disc. Co., 459 U.S. at 58 (“The filing of a notice of
appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals

- 178 -

and divests the district court of its control over those aspects of the case involved in the appeal.”
(citations omitted)); Garcia v. Burlington N. R.R., 818 F.2d 713, 721 (10th Cir. 1987)(“Filing a
timely notice of appeal pursuant to Fed. R. App. P. 3 transfers the matter from the district court
to the court of appeals. The district court is thus divested of jurisdiction. Any subsequent action
by it is null and void.” (citations omitted)); Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166,
1170 (5th Cir. 1978)(“[I]t is the filing of the appeal, not the entering of a final judgment, that
divests the district court of jurisdiction.” (citations omitted)), but, because the final judgment
starts the parties’ thirty-day clock for filing a timely notice of appeal, the Federal Rules and the
Tenth Circuit have chosen to curtail the district court’s jurisdiction over the case in the roughly
month-long period of potentially overlapping trial- and appellate-court jurisdiction that
immediately follows the entry of final judgment, see Servants of the Paraclete v. Does, 204 F.3d
at 1009 (noting that post-final judgment motions at the district court level are “not intended to be
a substitute for direct appeal”).
Rather than suddenly divesting the district court of all jurisdiction over the case -potentially resulting in the district court being unable to rectify easily fixable problems with the
final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that
might otherwise not need to be appealed -- the Federal Rules set forth a jurisdiction phased deescalation process, wherein the district court goes from pre-final judgment plenary jurisdiction,
to limited review for the first twenty-eight days post-final judgment, and, finally, to solely rule
60 review after twenty-eight days. In defining the “limited review” that rule 59(e) allows a

- 179 -

district court to conduct in the twenty-eight-day flux period, the Tenth Circuit, in Servants of the
Paraclete v. Does, incorporated traditional law-of-the-case grounds -- the same grounds that
inform whether a court should depart from an appellate court’s prior decision in the same case -into rule 59(e). See United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)(departing
from the law-of-the-case doctrine in “three exceptionally narrow circumstances: (1) when the
evidence in a subsequent trial is substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law applicable to such issues; or (3) when the
decision was clearly erroneous and would work a manifest injustice”

(citation omitted));

Servants of the Paraclete v. Does, 204 F.3d at 1012 (incorporating those grounds into rule 59(e)).
Neither of these concerns -- finality nor jurisdictional overlap -- is implicated when a
district court reconsiders one of its own interlocutory orders.

The Federal Rules do not

specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the
following open-ended proclamation about their mutability:
When an action presents more than one claim for relief -- whether as a
claim, counterclaim, crossclaim, or third-party claim -- or when multiple parties
are involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is
no just reason for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can
freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district

- 180 -

court’s ability to do so, other than that it must do so “before the entry of a judgment.” Fed. R.
Civ. P. 54(b).
The Tenth Circuit has not cabined district courts’ discretion beyond what rule 54(b)
provides: “[D]istrict courts generally remain free to reconsider their earlier interlocutory orders.”
Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007). In the Tenth Circuit, “law of
the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has
been reassigned from one judge to another.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252
(10th Cir. 2011)(emphasis added)(citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this
context, “the doctrine is merely a ‘presumption, one whose strength varies with the
circumstances.’” Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of
Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). In short, a district court can use whatever
standard it wants to review a motion to reconsider an interlocutory order. It can review the
earlier ruling de novo and essentially reanalyze the earlier motion from scratch, it can review the
ruling de novo but limit its review, it can require parties to establish one of the law-of-the-case
grounds, or it can refuse to entertain motions to reconsider altogether.
The best approach, in the Court’s eyes, is to analyze motions to reconsider differently
depending on three factors. Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225 (“[T]he doctrine is
merely a ‘presumption, one whose strength varies with the circumstances.’” (citation omitted)).
First, the Court should restrict its review of a motion to reconsider a prior ruling in proportion to
how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion

- 181 -

to reconsider challenges. How “thoroughly” a point was addressed depends both on the amount
of time and energy the Court spent on it, and on the amount of time and energy the parties spent
on it -- in briefing and orally arguing the issue, but especially if they developed evidence on the
issue. A movant for reconsideration thus faces a steeper uphill challenge when the prior ruling
was on a criminal suppression motion, class certification motion, or preliminary injunction,104
than when the prior ruling is, e.g., a short discovery ruling. The Court should also look, not to
the overall thoroughness of the prior ruling, but to the thoroughness with which the Court
addressed the exact point or points that the motion to reconsider challenges. A movant for
reconsideration thus faces an easier task when he or she files a targeted, narrow-in-scope motion
104

The Court typically makes findings of fact and conclusions of law in ruling on these
motions. At first glance, it appears that the Federal Rules of Civil Procedure set forth additional
standards -- beyond that which applies to other interlocutory orders -- for amending findings of
fact and conclusions of law: “Amended or Additional Findings. On a party’s motion filed no
later than 28 days after the entry of judgment, the court may amend its findings -- or make
additional findings -- and may amend the judgment accordingly. The motion may accompany a
motion for a new trial under Rule 59.” Fed. R. Civ. P. 52(b). This rule appears to limit motions
to reconsider orders with findings of fact and conclusions of law to twenty-eight days. The
rule’s use of the term “entry of judgment,” its reference to rule 59, and its adoption of the same
time period that applies to motions to alter or amend a judgment, all lead the Court to conclude,
however, that rule 52(b) -- and its twenty-eight-day time limit -- does not apply to interlocutory
orders. See Houston Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th Cir. 1962)(“The original
order was not a judgment because it was not appealable and, as it was not a judgment, Rules
52(b) and 59(e) do not apply. . . . No rule of which we are aware limits the plenary power of a
federal district court which has made an interlocutory order to grant such relief from that order as
justice requires while the case is pending before it.”). See also Trujillo v. Bd. of Educ. of
Albuquerque Pub. Sch., 212 F. App’x 760, 765 (10th Cir. 2007)(unpublished)(“A district court
has discretion to revise interlocutory orders prior to entry of final judgment.”). The time limit
applies only to findings of fact and conclusions of law supporting a case-ending judgment -- such
as those entered after a bench trial -- and to those giving rise to an interlocutory appeal that, if
filed, divests the district court of its jurisdiction -- such as those entered in support of a
preliminary injunction.

- 182 -

asking the Court to reconsider a small, discrete portion of its prior ruling than when he or she
files a broad motion to reconsider that rehashes the same arguments from the first motion, and
essentially asks the Court to grant the movant a mulligan on its earlier failure to present
persuasive argument and evidence.
Second, the Court should consider the case’s overall progress and posture, the motion for
reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the
parties may produce, and use those factors to assess the degree of reasonable reliance the
opposing party has placed in the Court’s prior ruling. See 18B Charles Alan Wright, et al,
Federal Practice & Procedure § 4478.1, at 695-96 (2d ed. 2002)(“Stability becomes increasingly
important as the proceeding nears final disposition . . . . Reopening should be permitted,
however, only on terms that protect against reliance on the earlier ruling.”). For example, if a
defendant (i) spends tens of thousands of dollars removing legacy computer hardware from longterm storage; then (ii) obtains a protective order in which the Court decides that the defendant
need not produce the hardware in discovery; then (iii) returns the hardware to long-term storage,
sustaining thousands more in expenses; and (iv) several months pass, then the plaintiffs should
face a higher burden in moving the Court to reconsider its prior ruling that they faced in fighting
the motion for protective order the first time.
Third, the Court should consider the Servants of the Paraclete v. Does grounds. The
Court should be more inclined to grant motions for reconsideration if the movant presents
(i) new controlling authority -- especially if the new authority overrules prior law or sets forth an

- 183 -

entirely new analytical framework; (ii) new evidence -- especially if the movant has a good
reason why the evidence was not presented the first time around; or (iii) a clear indication -- one
that manifests itself without the need for in-depth analysis or review of the facts -- that the Court
erred.
These three factors should influence the degree to which the Court restricts its review of a
prior ruling, but they do not necessarily mean that the Court should always apply a deferential
standard of review. The Court should pause before applying a standard of review to its own
interlocutory orders that is more deferential than the standard that the Court of Appeals will
apply to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or
the party moving for reconsideration waived their right to appeal the alleged error by not raising
the appropriate argument. Even in circumstances where the Court concludes that it is insulated
from reversal on appeal, there are principled reasons for applying a de novo standard. After all,
if the Court is wrong in its earlier decision, then, generally speaking, it is unjust to maintain that
result -- although the Court should weigh this injustice against any injustice that would result
from upending the parties’ reliance on the earlier ruling, which is the balancing test that the three
factors above represent.
What the Court means by “restricting its review” is less about applying a deferential
standard of review -- although that may be appropriate in some circumstances -- and more about
reducing (i) the depth of the Court’s analysis the second time around -- thus conserving judicial
resources; and (ii) the impositions that relitigation of the prior ruling will impose on the party

- 184 -

opposing the motion for reconsideration. The Court should consider the time and expense that
the party opposing reconsideration spent in winning the earlier ruling and should try to prevent
that party from having to bear the same impositions again.

Basically, even if the Court

ultimately analyzes a motion to reconsider under the same standard that it analyzed the motion
that produces the earlier ruling, it should analyze the motion in a different way -- one focused on
reducing the litigation burdens of the party opposing reconsideration. For example, when a party
moves the Court for a preliminary injunction, standard practice is that the Court holds an
evidentiary hearing as a matter of course, regardless whether it looks as if the party has a good
chance of prevailing. If the party loses and the Court denies the injunction, however, and the
party moves for reconsideration, the party should not be entitled to the presumption of an
evidentiary hearing merely because he or she received that presumption the first time the Court
considered the motion.
In light of these statements, it is perhaps better to characterize the increased burden that a
movant for reconsideration faces as one of production and not of persuasion. The Court analyzes
motions to reconsider by picking up where it left off in the prior ruling and not by starting anew.
Parties opposing reconsideration can do the same, and they may stand on whatever evidence and
argument they used to win the earlier ruling. Movants for reconsideration, on the other hand,
carry the full burden of production: they must persuade the Court, using only the evidence and
argument they put before it, that it should change its prior ruling; they must do all of the legwork,
and not rely on the Court to do any supplemental fact-finding or legal research; and they must

- 185 -

convincingly refute both the counterarguments and evidence that the opposing party used to win
the prior ruling, and any new arguments and evidence that the opposing party produces while
opposing the motion to reconsider. Unlike the motion that produced the prior ruling, a motion to
reconsider is not -- and is not supposed to be -- a fair fight procedurally. The deck is stacked
against a movant for reconsideration, and if such a movant hopes to prevail, he or she must have
not only a winning legal position, but the work ethic and tenacity to single-handedly lead the
Court to his or her way of thinking. See New Mexico v. Valley Meat Co., No. CIV 14-1100
JB/KBM, 2015 WL 9703255, at *16-22 (D.N.M. Dec. 14, 2015)(Browning, J.).
RELEVANT LAW REGARDING LAW OF THE CASE
“Under the law of the case doctrine, ‘when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.’”
Poche v. Joubran, 389 F. App’x 768, 774 (10th Cir. 2010)(unpublished)(quoting Dobbs v.
Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279 (10th Cir. 2010)). The Tenth Circuit
has “acknowledged, however, that ‘the rule [of law of the case] is a flexible one that allows
courts to depart from erroneous prior rulings, as the underlying policy of the rule is one of
efficiency, not restraint of judicial power.’” Been v. O.K. Indus., Inc., 495 F.3d at 1224 (quoting
Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 823 (10th Cir. 2007)). The Tenth
Circuit has stated that this flexibility means “the doctrine is merely a ‘presumption, one whose
strength varies with the circumstances.’” Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting
Avitia v. Metro. Club of Chi., Inc., 49 F.3d at 1227). See Homans v. City of Albuquerque, 366

- 186 -

F.3d 900, 904 (10th Cir. 2004)(“[T]he doctrine is discretionary rather than mandatory.”). “If the
original ruling was issued by a higher court, a district court should depart from the ruling only in
exceptionally narrow circumstances.”

Been v. O.K. Indus., Inc., 495 F.3d at 1225 (citing

McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000)).
“Only final judgments may qualify as law of the case.” Poche v. Joubran, 389 F. App’x
at 774 (alteration and internal quotation marks omitted)(quoting Unioil, Inc. v. Elledge (In re
Unioil, Inc.), 962 F.2d 988, 993 (10th Cir. 1992)). The doctrine is inapplicable where “a ruling
remains subject to reconsideration.” Wallace v. United States, 372 F. App’x 826, 828 (10th Cir.
2010)(unpublished)(internal quotation marks omitted)(quoting Unioil, Inc. v. Elledge (In re
Unioil, Inc.), 962 F.2d at 993). This principle means that “district courts generally remain free to
reconsider their earlier interlocutory orders.” Been v. O.K. Indus., Inc., 495 F.3d at 1225 (citing
Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005); United States v. Smith, 389 F.3d
944, 949 (9th Cir. 2004)(per curiam)(explaining that a district court may review its prior rulings
so long as it retains jurisdiction over the case)).
Similarly, this Court has stated that “[l]aw of the case is a doctrine that binds the trial
court after an appeal.” Lane v. Page, 727 F. Supp. 2d 1214, 1230 n.9 (D.N.M. 2010)(Browning,
J.)(citation omitted). In Weston v. Harmatz, 335 F.3d 1247 (10th Cir. 2003)(McConnell, J.), the
Tenth Circuit stated:
Under the law of the case doctrine, “[a] legal decision made at one stage of
litigation, unchallenged in a subsequent appeal when the opportunity to do so
existed, becomes the law of the case for future stages of the same litigation, and

- 187 -

the parties are deemed to have waived the right to challenge that decision at a
later time.”
335 F.3d at 1255 (alteration in Weston v. Harmatz)(quoting Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 321 F.3d 950, 992 (10th Cir. 2003)).
The law-of-the-case “doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618 (1983). “A complementary theory, the mandate rule,
‘generally requires [district] court conformity with the articulated appellate remand,’ but the
mandate rule ‘is a discretion-guiding rule subject to exception in the interests of justice.” United
States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996)(alteration in United States v. Webb)(quoting
United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).
The doctrine has particular relevance following a remand order issued by an
appellate court. “[W]hen a case is appealed and remanded, the decision of the
appellate court establishes the law of the case and ordinarily will be followed by
both the trial court on remand and the appellate court in any subsequent appeal.”
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). The law of the
case doctrine is intended to prevent “continued re-argument of issues already
decided,” Gage v. Gen. Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986), and to
preserve scarce court resources -- to avoid “in short, Dickens’s Jarndyce v.
Jarndyce syndrome.” McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035
(10th Cir. 2000).
....
. . . [T]hree “exceptionally narrow” grounds justify departing from the law
of the case doctrine: “(1) when the evidence in a subsequent trial is substantially
different; (2) when controlling authority has subsequently made a contrary
decision of the law applicable to such issues; or (3) when the decision was clearly
erroneous and would work a manifest injustice.” McIlravy, 204 F.3d at 1035.

- 188 -

Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128, 1132-33 (10th Cir. 2001). Although the
law-of-the-case doctrine “is designed to promote finality and prevent re-litigation of previously
decided issues,” it “does not serve to limit a court’s power.” Rimbert v. Eli Lilly & Co., 647
F.3d at 1251.

“The doctrine applies to issues previously decided, either explicitly or by

necessary implication.” Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d 700,
706 (10th Cir. 1993)(citations omitted), abrogated in part on other grounds on reh’g, 39 F.3d
1078 (10th Cir. 1994)(en banc). See Emp’rs’ Mut. Cas. Co. v. Bartile Roofs, Inc., 478 F. App’x
493, 498 (10th Cir. 2012)(unpublished)(holding that, “to the extent that [the defendant] attempts
to circumvent our prior legal conclusion concerning what constitutes an ‘accident’ under the
[relevant insurance] policies, the law of the case doctrine bars the attempt”). The Tenth Circuit
has long held that there are
three grounds under the “law of the case” doctrine by which we might conclude
an issue was implicitly resolved in a prior appeal, as follows: (1) resolution of the
issue was a necessary step in resolving the earlier appeal; (2) resolution of the
issue would abrogate the prior decision and so must have been considered in the
prior appeal; and (3) the issue is so closely related to the earlier appeal its
resolution involves no additional consideration and so might have been resolved
but unstated.
Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d at 707.
LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES
“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on
race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825
(1976)(citing 42 U.S.C. §§ 2000e-2, 2000e-3). The Court has noted that Title VII generally

- 189 -

protects individuals from employers’ improperly motivated adverse treatment in the workplace:
“Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire
or discharging any individual, or otherwise discriminating against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007
WL 6364329, at *6 (D.N.M. Dec. 31, 2007)(Browning, J.)(internal quotation marks and
alterations omitted)(quoting 42 U.S.C. § 2000e-2(a)(1)). With the 1972 amendments to the
statute, Title VII’s protections apply to federal and private employees. See Brown v. Gen. Servs.
Admin., 425 U.S. at 825-26 (citing 42 U.S.C. § 2000e(b)); Walton v. N.M. State Land Office,
113 F. Supp. 3d 1178, 1184 (D.N.M. 2015)(Browning, J.); Gerald v. Locksley, 785 F. Supp. 2d
1074, 1098 (D.N.M. 2011)(Browning, J.).
1.

Title VII Retaliation.

To establish a prima facie case of retaliation, a plaintiff must show: “(1) that he engaged
in protected opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action.” Proctor v. United Parcel Serv., 502 F.3d
1200, 1208 (10th Cir. 2007)(internal quotation marks omitted)(quoting Argo v. Blue Cross &
Blue Shield of Kan., Inc., 452 F.3d at 1202). “To establish that a causal connection exists,” a
plaintiff “may proffer ‘evidence of circumstances that justify an inference of retaliatory motive,
such as protected conduct closely followed by adverse action.’” Proctor v. United Parcel Serv.,

- 190 -

502 F.3d at 1208 (quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir.
2006)). Generally speaking, if this temporal proximity between the protected activity and the
adverse action are not “very close in time,” the plaintiff “must offer additional evidence to
establish causation.” Proctor v. United Parcel Serv., 502 F.3d at 1209 (internal quotation marks
omitted)(quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d at 1228). See Walton v. N.M.
State Land Office, 113 F. Supp. 3d at 1190; Gerald v. Locksley, 785 F. Supp. 2d at 1099-1100.
2.

Materially Adverse Employment Action.

The Tenth Circuit liberally defines what constitutes an adverse employment action. See
Orr v. City of Albuquerque, 417 F.3d 1144, 1150 (10th Cir. 2005)(“Because of the remedial
nature of Title VII lawsuits, we broadly define adverse employment action.”). The Tenth Circuit
has stated:
Such actions are not simply limited to monetary losses in the form of wages or
benefits. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996).
Instead, we take a “case-by-case approach,” examining the unique factors relevant
to the situation at hand. Jeffries [v. Kansas, 147 F.3d 1220, ]1232 [(10th Cir.
1998)]. Nevertheless, we will not consider “a mere inconvenience or an alteration
of job responsibilities” to be an adverse employment action. Crady v. Liberty
Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) . . . .
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998). See Proctor v. United Parcel
Serv., 502 F.3d at 1208. An adverse action “is not limited to discriminatory actions that affect
the terms and conditions of employment.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,
64 (2006).

“[A] plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might have dissuaded a

- 191 -

reasonable worker from making or supporting a charge of discrimination.”

Reinhardt v.

Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010)(internal quotation
marks omitted)(quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. at 68).

“The

antiretaliation provision protects an individual not from all retaliation, but from retaliation that
produces an injury or harm.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. at 67-68 (“We
speak of material adversity because we believe it is important to separate significant from trivial
harms.”). “We construe the phrase ‘adverse employment action’ liberally and do not limit it to
‘monetary losses in the form of wages or benefits.’” Reinhardt v. Albuquerque Pub. Sch. Bd. of
Educ., 595 F.3d at 1133 (quoting Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir.
2004)).

Acts that carry “a significant risk of humiliation, damage to reputation, and a

concomitant harm to future employment prospects” may be considered adverse actions, Berry v.
Stevinson Chevrolet, 74 F.3d at 986, although “‘a mere inconvenience or an alteration of job
responsibilities’ will not suffice,” Annett v. Univ. of Kan., 371 F.3d at 1239 (quoting Sanchez v.
Denver Pub. Sch., 164 F.3d at 532).
In Anderson v. Clovis Municipal Schools, 265 F. App’x 699 (10th Cir.
2008)(unpublished), the Tenth Circuit, in an unpublished opinion, addressed the requirement of
an adverse employment action in the context of a disparate-treatment claim and a hostile work
environment claim. There, an employee, who had been placed on a growth plan, alleged other
harsh treatment and a written reprimand in support of his claim that he suffered a hostile work
environment. See 265 F. App’x at 704. Relying on Schuler v. City of Boulder, 189 F.3d 1304

- 192 -

(10th Cir. 1999), the plaintiff argued that the growth plan and formal reprimand rose to the level
of an adverse employment action under Tenth Circuit law. See 265 F. App’x at 704. In
MacKenzie v. City & County of Domier, the Tenth Circuit discussed Anderson v. Clovis
Municipal School’s reliance on Schuler v. City of Boulder and stated: “While adverse
employment actions extend beyond readily quantifiable losses, not everything that makes an
employee unhappy is an actionable adverse action.

Otherwise, minor and even trivial

employment actions . . . would form the basis of a discrimination suit.”

414 F.3d at 1279

(internal quotation marks omitted)(quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996)). See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2007)(explaining
that Title VII proscribes only discriminatory conduct that “alters the employee’s ‘compensation,
terms, conditions, or privileges of employment,’ or ‘adversely affect[s] [the employee’s] status
as an employee” (second alteration added)(quoting Sanchez v. Denver Pub. Sch., 164 F.3d at
533)). “Only acts that constitute a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits will rise to the level of an adverse employment action.”
Robinson v. Cavalry Portfolio Servs., LLC, 365 F. App’x 104, 114 (10th Cir.
2010)(unpublished)(internal quotation marks omitted)(quoting Haynes v. Level 3 Commc’ns,
456 F.3d at 1222). See Walton v. N.M. State Land Office, 113 F. Supp. 3d at 1190-92; Gerald v.
Locksley, 785 F. Supp. 2d at 1100-01.

- 193 -

RELEVANT LAW REGARDING THE REHABILITATION ACT AND THE ADA
Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Section 504 thus prohibits
employers from discriminating against or failing to accommodate employees who are disabled
within the meaning of the Rehabilitation Act, and creates a private right of action in favor of a
qualified victim of such discrimination. See, e.g., Consol. Rail Corp. v. Darrone, 465 U.S. 624,
629, 632 (1984)(stating that § 504 does not apply only “where a primary objective of the Federal
financial assistance was to provide employment,” and that “it is unquestionable that [§ 504] was
intended to reach employment discrimination”); McGeshick v. Principi, 357 F.3d 1146, 1149
(10th Cir. 2004)(“The [Rehabilitation Act] makes available a private right of action to qualified
individuals who have been subjected to discrimination by the federal government or by a
program or activity receiving federal financial assistance.” (citing 29 U.S.C. § 794(a); Niehaus
v. Kan. Bar Ass’n, 793 F.2d 1159, 1162 (10th Cir. 1986)); Pushkin v. Regents of Univ. of Colo.,
658 F.2d 1372, 1380 (10th Cir. 1981)(holding that § 504 creates a private right of action). In
cases of employment discrimination brought under 29 U.S.C. § 794, the Rehabilitation Act
adopts “the standards applied under title I of the Americans with Disabilities Act of 1990 (42
U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to

- 194 -

employment.” 29 U.S.C. § 794(d). Because of this relationship, “decisions under both acts
apply interchangeably to [a court’s] analysis.” Vidacak v. Potter, 81 F. App’x 721, 723 (10th
Cir. 2003)(unpublished).
1.

Prima Facie Case of Disability Discrimination.

To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff
must show: (i) that he or she is disabled under the Rehabilitation Act; (ii) that he or she is a
qualified individual for the position; (iii) that the employer receives federal financial assistance;
and (iv) the employer discriminated against the plaintiff. See McGeshick v. Principi, 357 F.3d at
1150; Vidacak v. Potter, 81 F. App’x at 723.

An employer may discriminate against an

employee by subjecting the employee to an adverse employment action, i.e., “acts that constitute
a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.” Dick v. Phone Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005). An
employer can also discriminate by failing to accommodate an employee’s disability, unless such
an accommodation would create an undue hardship. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R.
§ 1630.9.
a.

Establishing a Person is Disabled Within the Meaning of the
Rehabilitation Act.

The Rehabilitation Act defines “individual with a disability” for purposes of subchapter
V -- under which 29 U.S.C. § 794 falls -- as “any person who has a disability as defined in
section 12102 of Title 42.” 29 U.S.C. § 705(20)(B). Accordingly, § 504 of the Rehabilitation

- 195 -

Act adopts the ADA’s definition of “disability,” which, regarding an individual, means: “(A) a
physical or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1).
“[M]ajor life activities include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C.
§ 12102(2)(A). “[A] major life activity also includes the operation of a major bodily function,
including but not limited to, functions of the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions.” 42 U.S.C. § 12102(2)(B). Accordingly, a major life activity is not confined to those
activities “with a public, economic, or daily aspect.” Bragdon v. Abbott, 524 U.S. 624, 639
(1998). Further, “[w]hether an activity is a ‘major life activity’ is not determined by reference to
whether it is of ‘central importance to daily life.’” 29 C.F.R. § 1630.2(i)(2)(quoting Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002), superseded by statute, ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat 3553 (“ADAAA”)).
As the Rehabilitation Act adopts the ADA’s definition of “disability,” ADA regulations
interpreting the ADA’s definition are applicable to the Rehabilitation Act for § 794 purposes.
See McGeshick v. Principi, 357 F.3d at 1150 (citing Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. at 198 to define “substantially limited,” which relies on ADA regulations to define

- 196 -

“substantially limited”).

ADA regulations provide “rules of construction,” 29 C.F.R.

§ 1630.2(j)(1), for determining whether an impairment substantially limits an individual’s major
life activity:
(i) The term “substantially limits” shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the ADA.
“Substantially limits” is not meant to be a demanding standard.
(ii) An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population. An impairment need not
prevent, or significantly or severely restrict, the individual from performing a
major life activity in order to be considered substantially limiting. Nonetheless,
not every impairment will constitute a disability within the meaning of this
section.
29 C.F.R. § 1630.2(j)(1)(i)-(ii).

The regulations underscore that the determination of

“substantially limits” is an individualized assessment and has a standard lower than that applied
before the ADAAA’s passage. 29 C.F.R. § 1630.2(j)(1)(iv)(“[T]he term ‘substantially limits’
shall be interpreted and applied to require a degree of functional limitation that is lower than the
standard for ‘substantially limits’ applied prior to the ADAAA.”). Further, when making a
determination of “substantially limits,” a court should not consider “the ameliorative effects of
mitigating measures” besides “ordinary eyeglasses or contact lenses.”
§ 1630.2(j)(1)(vi).

29 C.F.R.

“Whether an individual’s impairment ‘substantially limits’ a major life

activity is not relevant,” however, to a plaintiff’s establishing that he or she is “regarded as”
having a disability.

29 C.F.R. § 1630.2(j)(2).

- 197 -

See also 29 C.F.R. § 1630.2(g)(3)(“[T]he

‘regarded as’ prong of the definition of disability . . . does not require a showing of an
impairment that substantially limits a major life activity or a record of such an impairment.”).
To establish the “regarded as” definition of disability, the plaintiff must show “that he or
she has been subjected to [discrimination] because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102(3)(A). The perceived impairment must not be transitory -- “with an actual or
expected duration of 6 months nor less” -- nor “minor.” 42 U.S.C. § 12102(3)(B). Congress
passed the ADAAA to make it easier for a plaintiff to make out a “regarded as” prong claim by
rejecting the narrowed requirement that the Supreme Court proffered in Sutton v. United Air
Lines, Inc., 527 U.S. 471 (1999), and by reinstating the “broad view” in School Board of Nassau
County v. Arline, 480 U.S. 273 (1987). Pub. L. No. 110-325, § 2(b)(3), 122 Stat. 3553, 3554.
Sutton v. United Air Lines, Inc. required a plaintiff to establish that the employer believed the
plaintiff to have an impairment that substantially limits a major life activity. See 527 U.S. at
489. The Supreme Court in School Board of Nassau County v. Arline discussed how Congress
“expanded the definition” of “disability”105 under the Rehabilitation Act “[t]o combat the effects
of erroneous but nevertheless prevalent perceptions about the handicapped” and thus to prohibit
discrimination based on the perception of an impairment. Sch. Bd. of Nassau Cty. v. Arline, 480
U.S. at 279 (citing Se. Cmty. College v. Davis, 442 U.S. 397, 405-06 n.6 (1979)). The Supreme
105

The Supreme Court uses the term “handicapped individual,” because that was the term
the Rehabilitation Act used at the time. The definitions of “handicapped individual” that the
Supreme Court is discussing, and the current term “disability” are the same. Compare Sch. Bd.
of Nassau Cty. v. Arline, 480 U.S. at 279, with 42 U.S.C. § 12102(1)

- 198 -

Court reasoned that a person regarded as impaired could be substantially limited in his or her
“ability to work as a result of the negative reactions of others to the impairment.” Sch. Bd. of
Nassau Cty. v. Arline, 480 U.S. at 283.
The Tenth Circuit discusses the passage of the ADAAA and Congressional abrogation of
the Supreme Court’s regarded-as-disabled precedent in Adair v. City of Muskogee, 823 F.3d
1297 (10th Cir. 2016). The Tenth Circuit notes that, now, a “regarded as” impairment “need not
limit or even be perceived as limiting a major life activity -- the employer need only regard the
employee as being impaired, whether or not the employer also believed that the impairment
prevented the employee from being able to perform a major life activity.” Adair v. City of
Muskogee, 823 F.3d at 1305-06. “Unlike pre-ADAAA plaintiffs, an ADAAA plaintiff no longer
needs to plead and prove that the actual or perceived impairment ‘substantially limited one or
more major life activities.’” Adair v. City of Muskogee, 823 F.3d at 1306 (quoting Mercado v.
Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016)). Thus, a regarded-as-disabled claim now
requires that the plaintiff establish that “(1) he has an actual or perceived impairment, (2) that
impairment is neither transitory nor minor, and (3) the employer was aware of and therefore
perceived the impairment at the time of the alleged discriminatory action.” Adair v. City of
Muskogee, 823 F.3d at 1306.
If the alleged discrimination occurred before January 1, 2009, the ADAAA’s effective
date, the Tenth Circuit requires a plaintiff to show that the employer “regarded her as having an
impairment that substantially limited the major life activity of working.” Baltazar v. Shinseki,

- 199 -

485 F. App’x 941, 944-45 (10th Cir. 2012)(unpublished).

See Equal Emp’t Opportunity

Comm’n, 853 F.3d 1150, 1155-56 (10th Cir. 2017)(citing Sutton v. United Air Lines, Inc., 527
U.S. at 489). In Detterline v. Salazar, 320 F. App’x 853 (10th Cir. 2009)(unpublished), the
Tenth Circuit stated that, to establish a “regarded as” disability, the
plaintiff must show that (1) the employer mistakenly believes the plaintiff has a
physical or mental impairment that substantially limits a major life activity; or
(2) the employer mistakenly believes that an existing impairment substantially
limits a major life activity when, in fact, the impairment does not result in a
limitation.
320 F. App’x at 856 (citing Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir.
2008))). “The fact that an employer recognizes an employee’s physical restrictions and places
him in a position allowing him to work within those restrictions does not, by itself, [however,]
show that the employer regarded him as disabled.” Detterline v. Salazar, 320 F. App’x at 858.
The plaintiff must prove that the employer perceived a disabling impairment under the
Rehabilitation Act. See Detterline v. Salazar, 320 F. App’x at 857 (citing McGeshick v. Principi,
357 F.3d at 1151). The court’s “focus is on the employer’s subjective state of mind: did the
employer mistakenly believe that the plaintiff was substantially limited in performing a major
life activity?” Justice v. Crown Cork & Seal Co., 527 F.3d at 1086.
b.

Establishing a Person is “Qualified” Under the Rehabilitation Act.

The ADA defines “qualified individual” as “an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). Cf. 45 C.F.R. § 84.3(l)(1) (defining a

- 200 -

“qualified handicapped person” as “a handicapped person who, with reasonable accommodation,
can perform the essential functions of the job in question”).

Further, “consideration shall be

given to the employer’s judgment as to what functions of a job are essential.” 42 U.S.C.
§ 1211(8).

“Essential functions of the job [are] functions that bear more than a marginal

relationship to the job at issue.” Adair v. City of Muskogee, 823 F.3d at 1307 (internal quotation
marks omitted)(quoting Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 887 (10th Cir.
2015)). To determine if a function is essential, Tenth Circuit considers,
among other things, (1) the employer’s judgment as to which functions are
essential; (2) written job descriptions; (3) the time spent performing the particular
function; (4) the consequences if the individual cannot perform the function;
(5) any collective-bargaining agreement; (6) the work experience of those in the
position in the past; and (7) the current work experience of those in similar
positions.
Adair v. City of Muskogee, 823 F.3d at 1307 (citing 29 C.F.R. § 1630.2(n)(3)). If a plaintiff
cannot perform an essential job function, he or she is nonetheless still considered a “qualified
individual” if: (i) “a reasonable accommodation would have enabled [the plaintiff] to perform his
[or her] original job,” and (ii) the employer could reassign the plaintiff to an existing, vacant
position “to which ‘a similarly situated, non-disabled employee’ could apply.” Sanchez v. U.S.
Dep’t of Energy, 870 F.3d 1185, 1199-1200 (10th Cir. 2017)(quoting Koessel v. Sublette Cty.
Sheriff’s Dep’t, 717 F.3d at 745 (10th Cir. 2013)(Tymkovich, J.)). The plaintiff bears the burden
of showing such qualification. See Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d at 743
(citing Henagirv. Utah Dep’t of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009)).

- 201 -

2.

Illegal Medical Inquiry Claims Under the Rehabilitation Act.

Section 504 of the Rehabilitation Act incorporates many of the ADA “Title I’s
prohibitions on employment discrimination by reference, including § 12112(D)(4)(A)’s medical
inquiry prohibition.” Taylor v. City of Shreveport, 798 F.3d 273, 283 (5th Cir. 2015)(footnote
omitted). See 29 U.S.C. § 794(d) (“The standards used to determine whether this section has
been violated in a complaint alleging employment discrimination under this section shall be the
standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111
et seq.) . . . .”). Accordingly, an employer receiving federal financial assistance or a federal
agency “shall not require a medical examination and shall not make inquiries of an employee as
to whether such employee is an individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be job-related and consistent with
business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer may, however, “make inquiries
into the ability of an employee to perform job-related functions.” 42 U.S.C. § 12112(d)(4)(B).
Requesting “a prohibited medical examination or inquiry may constitute a form of employment
discrimination.” Taylor v. City of Shreveport, 798 F.3d at 282. See 42 U.S.C. § 12112(d)(1)
(“The prohibition against discrimination as referred to in subsection (a) of this section shall
include medical examinations and inquiries.”).
To maintain a prohibited-medical-inquiry claim of discrimination, a plaintiff does not
need to assert that he or she “is an individual with a disability.” Roe v. Cheyenne Mountain
Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997). See Williams v. FedEx Corp.

- 202 -

Servs., 849 F.3d 889, 901 (10th Cir. 2017). The purpose of bringing such a claim is to prevent
employers from inquiring into whether employees have a disability, so requiring a plaintiff to
identify as disabled as part of the prima facie case “makes little sense.” Griffin v. Steeltek, Inc.,
160 F.3d 591, 594 (10th Cir. 1998). A prima facie case requires the plaintiff to establish:
“(1) that he is an employee of the defendant employer, and (2) that the defendant-employer
required him to undergo a medical examination or made a disability-related inquiry of him.”
Williams v. FedEx Corp. Servs., 849 F.3d at 901 (citing Roe v. Cheyenne Mountain Conference
Resort, Inc., 124 F.3d at 1229). The United States Court of Appeals for the Sixth Circuit has
noted that EEOC guidelines define “medical examination” as “a procedure or test that seeks
information about an individual’s physical or mental impairments or health,” and discussed
factors helpful to this determination:
(1) whether the test is administered by a health care professional; (2) whether the
test is interpreted by a health care professional; (3) whether the test is designed to
reveal an impairment or physical or mental health; (4) whether the test is invasive;
(5) whether the test measures an employee’s performance of a task or measures
his/her physiological responses to performing the task; (6) whether the test
normally is given in a medical setting; and, (7) whether medical equipment is
used.
Bates v. Dura Auto. Sys., Inc., 767 F.3d at 574-75 (quoting EEOC, No. 915.002 Enforcement
Guidance: Disability-Related Injuries and Medical Examinations of Employees Under the
Americans with Disabilities Act (ADA) (2000), 2000 WL 33407171, at *3, (“EEOC
Enforcement Guidance”)). The Sixth Circuit has stated that the third factor is “arguably the most

- 203 -

critical in this analysis.” Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 819 (6th Cir.
2012).
The employer may avoid liability “by demonstrating that the medical examination or
disability-related inquiry was job-related and consistent with business necessity.” Williams v.
FedEx Corp. Servs., 849 F.3d at 901 (citing 42 U.S.C. § 12112(d)(4)(A)). The Tenth Circuit has
“recognized that ‘courts will readily find a business necessity if an employer can demonstrate
that a medical examination or inquiry is necessary to determine whether the employer can
perform job-related duties when the employer can identify legitimate, non-discriminatory
reasons to doubt the employee’s capacity to perform his or her duties.’” Williams v. FedEx
Corp. Servs., 849 F.3d at 902 (quoting Adair v. City of Muskogee, 823 F.3d at 1312). In Adair
v. City of Muskogee, the Tenth Circuit determined that where “an employee has sought workers’
compensation benefits based on a potential permanent or temporary physical impairment, an
employer has a valid business interest in determining whether the employee is actually able to
perform the essential functions of his job,” and thus found an evaluation into these essential
functions to be “job-related and consistent with business necessity.” 823 F.3d at 1313. In
Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999), overruled on other grounds, Bd. of Trs. of
Univ of Ala. v. Garrett, 531 U.S. 356, 373-74 (2001), the Tenth Circuit found that a form that
“sought verification of an employee’s ability to perform the essential functions of his job, or to
begin the process of identifying appropriate and necessary reasonable accommodations for
employees of need of such accommodation,” and used to “set[] post assignments and establish[]

- 204 -

reasonable accommodations,” was job-related and consistent with business necessity. 190 F.3d
at 1134.
3.

Constructive Discharge Claims Under the Rehabilitation Act.

The Rehabilitation Act also adopts ADA standards for constructive discharge claims,
and, thus, “[c]onstructive discharge occurs when the employer by its illegal discriminatory acts
has made working conditions so difficult that a reasonable person in the employee’s position
would feel compelled to resign.” Corley v. Dep’t of Veterans Affairs ex rel. Principi, 218
F. App’x 727, 739 (10th Cir. 2007)(unpublished)(internal quotation marks omitted)(quoting
Sanchez v. Denver Pub. Sch., 164 F.3d at 534). The plaintiff must have also resigned to
establish a claim for constructive discharge. See Green v. Brennan, 136 S. Ct. at 1777. A
plaintiff alleging constructive discharge based on disability discrimination under the
Rehabilitation Act must also establish: (i) that he or she has a disability as defined under the
Rehabilitation Act, see Corley v. Dep’t of Veterans Affairs ex rel. Principi, 218 F. App’x at 739
(citing Wells v. Shalala, 228 F.3d 1137, 1146 (10th Cir. 2000)); Lanman v. Johnson Cty., 393
F.3d at 1158), and (ii) that he or she is a qualified individual for the position, see Wells v.
Shalala, 228 F.3d at 1146.
When determining whether constructive discharge has occurred, a court must examine
the employer’s actions objectively. See, e.g., Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d
1351, 1356 (10th Cir. 1997)(“ To determine whether a jury question exists as to the voluntariness
of Plaintiffs’ respective resignations, we consider the totality of the circumstances under an

- 205 -

objective standard.”).

“The conditions of employment must be objectively intolerable; the

‘plaintiff’s subjective views of the situation are irrelevant.’” Sanchez v. Denver Pub. Sch., 164
F.3d at 534 (quoting Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d at 1356). “Essentially, a
plaintiff must show that she had ‘no other choice but to quit.’” Yearous v. Niobrara Cty. Mem’l
Hosp., 128 F.3d at 1356 (emphasis in Woodward v. City of Worland)(quoting Woodward v. City
of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992)). Thus, a plaintiff cannot successfully allege
constructive discharge where the resignation was voluntary. See, e.g., Yearous v. Niobrara Cty.
Mem’l Hosp., 128 F.3d at 1356. In determining voluntariness, the Tenth Circuit has instructed
that courts “consider the totality of the circumstances under an objective standard.” Yearous v.
Niobrara Cty. Mem’l Hosp., 128 F.3d at 1356. The factors that inform the court’s analysis
include: “(1) whether the employee was given some alternative to resignation; (2) whether the
employee understood the nature of the choice he was given; (3) whether the employee was given
a reasonable time in which to choose; and (4) whether [the employee] was permitted to select the
effective date of resignation.” Parker v. Bd. of Regents of Tulsa Junior Coll., 981 F.2d 1159,
1162 (10th Cir. 1992).
Typically, constructive discharge claims rest on an allegation of a hostile work
environment. See Premratananont v. S. Suburban Park & Recreation Dist., 149 F.3d 1191, 1998
WL 211543, at *2 (10th Cir. 1998)(unpublished table opinion). “A hostile work environment is
a workplace ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of employment and create an abusive working

- 206 -

environment.”

Dye v. Moniz, 672 F. App’x 836, 840 (10th Cir. 2016)(unpublished).

A

constructive discharge claim may also rest on “other types of intolerable working conditions
such as retaliatory conduct for making a complaint of discrimination or a failure to promote for
discriminatory reasons.” Premratananont v. S. Suburban Park & Recreation Dist., 1998 WL
211543, at *2 (citations omitted)(citing Woodward v. City of Worland, 977 F.2d at 1402; Irving
v. Dubuque Packing Co., 689 F.2d 170, 171-72 (10th Cir. 1982), repudiated on other grounds by
Koch v. City of Hutchinson, 814 F.2d 1489 (10th Cir. 1987)). “However, ‘[a] finding of
constructive discharge must not be based on the discriminatory act; there must also be
aggravating factors that make staying on the job intolerable.’” Premratananont v. S. Suburban
Park & Recreation Dist., 1998 WL 211543, at *2 (alteration in Premratananont v. S. Suburban
Park & Recreation Dist.)(quoting James v. Sears Roebuck, 21 F.3d 989, 992 (10th Cir. 1994)).
For example, “[a] perceived demotion or reassignment to a job with lower status or lower pay
may, depending upon the individual facts of the case, constitute aggravating factors that would
justify finding of constructive discharge.” James v. Sears Roebuck, 21 F.3d at 993. In Hunt v.
Central Consolidated School District, 951 F. Supp. 2d 1136 (D.N.M. 2013)(Browning, J.), the
Court dismissed the plaintiff’ claims for constructive discharge, because the complaint did not
provide “any facts about discriminatory comments, or other discriminatory harassment relating
to the Plaintiff’s ‘race, color, religion, sex, or national origin.’” 951 F. Supp. 2d at 1215-16
(quoting 42 U.S.C. § 2000e-2(a)(1)). See also Gerald v. Locksley, 785 F. Supp. 2d at 1119
(dismissing claim of constructive discharge because the plaintiff did not “allege the requisite

- 207 -

level of severe working conditions required”). Further, in King v. Salazar, Nos. CIV 05-0575
JB/WDS, CIV 05-0997 JB/WDS, 2009 WL 13007401 (D.N.M. March 2, 2009)(Browning, J.),
the Court concluded that the plaintiff’s resignation was voluntary and granted the defendant
summary judgment on the plaintiff’s constructive discharge claim. See 2009 WL 13007401, at
*10-11 (noting that “[a] plaintiff seeking to prove a claim of constructive discharge faces a heavy
burden”).
Moreover, in cases involving alleged constructive discharge, the general rule is that a
reasonable employee must remain and fight discrimination on the job. E.g., Derr v. Gulf Oil Co.,
796 F.2d 340, 342-43 (10th Cir. 1986). There is a presumption that, unless the situation becomes
intolerable, it is preferable for the employee to seek redress within the context of the employment
relationship. See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997)(“[U]nless
conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain
on the job while seeking redress.” (quoting Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.
1996)); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987)(holding that
employee has duty to inform higher management and use available grievance procedures,
including the EEOC); Derr v. Gulf Oil Co., 796 F.2d at 342-43 (“We agree with the Fifth
Circuit’s statement in Bourque [v. Powell Elec. Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980),] that
‘society and the policies underlying Title VII will be best served if, wherever possible, unlawful
discrimination is attacked within the context of existing employment relationships.’”). The
obligation to seek redress is particularly true given the statutory protections from discrimination

- 208 -

and retaliation that the Rehabilitation Act, through its incorporation of the ADA, affords. Cf.
Derr v. Gulf Oil Corp., 796 F.2d at 342-43 (discussing Title VII’s protections); Bourque v.
Powell Elec. Mfg. Co., 617 F.2d at 66 (same).
4.

Retaliation Claims Under the Rehabilitation Act.

A prima facie case of retaliation requires that the plaintiff demonstrate: “(1) that he
engaged in protected opposition to discrimination, (2) that a reasonable employee would have
found the challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Argo v. Blue Cross & Blue Shield of
Kan., Inc., 452 F.3d at 1202 (10th Cir. 2006)(footnote omitted). A plaintiff alleging retaliation
need not establish that he or she meets the Rehabilitation Act’s definition of disabled; rather, the
plaintiff’s “reasonable, good-faith belief that the statute has been violated suffices.” Selenke v.
Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). Section 504 of the Rehabilitation
Act and the ADA prohibits “discrimination against any individual ‘because such individual has
opposed any act or practice made unlawful by this Act or because such individual made a charge
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
this Act.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1131 (quoting 42
U.S.C. § 12203(a)). See 29 U.S.C. § 794(d) (incorporating ADA standards, including 42 U.S.C.
§§ 12201-04, into claims of employment discrimination brought under this section of the
Rehabilitation Act). “Because the ADA’s anti-retaliation provision, 42 U.S.C. § 12203(a),
contains essentially the same language as Title VII’s provision, 42 U.S.C. § 2000e-3(a), [Title

- 209 -

VII precedent] applies in the ADA context as well” and, thus, to the Rehabilitation Act. Proctor
v. United Parcel Serv., 502 F.3d at 1208 n.4 (citing Burlington N. & Santa Fe Ry. v. White). See
Haynes v. Level 3 Commc’ns, 456 F.3d at 1228 (applying the same elements of a prima facie
case to Title VII and to ADA retaliation claims); Lanman v. Johnson Cty., 393 F.3d at 1155-56
(asserting that the shared language, “parallel purposes[,] and remedial structures of the [ADA
and of Title VII] support a consistent interpretation”).
“Protected activity” refers to activity that the statute protects, such as filing an EEOC
claim or other administrative charges. See Proctor v. United Parcel Serv., 502 F.3d at 1208. An
adverse employment action “must be ‘materially adverse’ to the employee’s job status. The
adverse action must amount to ‘a significant change in employment status, such as firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.’” Meiners v. Univ. of Kan., 359 F.3d 1222, 1230 (10th Cir.
2004)(citation omitted)(first quoting Sanchez v. Denver Pub. Sch., 164 F.3d at 533; then quoting
Aquilino v. Univ. of Kan., 268 F.3d 930, 934 (10th Cir. 2001)). Close temporal proximity
between the protected activity and the adverse action “is sufficient to allow an inference [of] a
causal connection” between them. Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at
1202 (allowing such inference where there were twenty-four days between the protected activity
and adverse action)(citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.
1999)(noting that a six-week period establishes this rebuttable inference but a three-month period
does not)).

- 210 -

5.

Direct Evidence of Discrimination.

A plaintiff must support his or her case with either direct or circumstantial evidence. See
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003). “Direct evidence is
‘[e]vidence, which if believed, proves [the] existence of [a] fact in issue without inference or
presumption.’” Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999)(alterations
in Shorter v. ICG Holdings, Inc.)(quoting Black’s Law Dictionary 460 (6th ed. 1990)), overruled
on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-102 (2003). Moreover,
“[d]irect evidence demonstrates on its face that the employment decision was reached for
discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). “A
statement that can plausibly be interpreted two different ways -- one discriminatory and the other
benign -- does not directly reflect illegal animus, and, thus, does not constitute direct evidence.”
Hall v. U.S. Dep’t of Labor, Admin. Review Bd., 476 F.3d 847, 855 (10th Cir. 2007)(internal
quotation marks omitted)(quoting Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir.
2002)). “When a plaintiff alleges that discriminatory comments constitute direct evidence of
discrimination, . . . the plaintiff ‘must demonstrate a nexus exists between [the] allegedly
discriminatory statements and the . . . decision to terminate her.’” Perry v. Woodward, 199 F.3d
1126, 1134 (10th Cir. 1999)(alteration in Perry v. Woodward)(quoting Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994)). “Direct evidence is that which demonstrates ‘a
specific link between the alleged discriminatory animus and the challenged [employment]
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion

- 211 -

actually motivated [the employer’s] decision’ to take the adverse employment action.” Deneen
v. Nw. Airlines, Inc., 132 F.3d 431, 436 (8th Cir. 1998)(alterations in Deneen v. Nw. Airlines,
Inc.)(quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)).
“Statements of personal opinion, even when reflecting personal bias or prejudice, do not
constitute direct evidence of discrimination, but at most, are only circumstantial evidence of
discrimination because the trier of fact must infer discriminatory intent from such statements.”
Hall v. U.S. Dep’t of Labor, Admin. Review Bd., 476 F.3d at 855 (citing Shorter v. ICG
Holdings, Inc., 188 F.3d at 1207).
6.

Burden-Shifting Under McDonnell Douglas.

In the absence of direct evidence, a plaintiff alleging discrimination under the
Rehabilitation Act may rely upon the burden-shifting framework that the Supreme Court, in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)(“McDonnell Douglas”),
provided. E.g., Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1387 (10th Cir. 1981).
Under the McDonnell Douglas framework, once a plaintiff has made out a prima facie
Rehabilitation Act case, the burden shifts to the defendant to show either that “the plaintiff was
not . . . otherwise qualified” or that there is a nondiscriminatory reason for the adverse action.
Pushkin v. Regents of Univ. of Colo., 658 F.2d at 1387. See also Argo v. Blue Cross & Blue
Shield of Kan., 452 F.3d at 1202; Mitchell v. City of Wichita, 140 F. App’x 767, 777 (10th Cir.
2005)(Browning, J.)(unpublished).

“Upon the employer’s articulation of legitimate,

nondiscriminatory reasons, the presumption of discrimination established by the prima facie case

- 212 -

‘simply drops out of the picture.’” Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1210
(D.N.M. 2004)(Browning, J.)(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993)). Further, “the determination that a defendant has met its burden of production (and has
thus rebutted any legal presumption of intentional discrimination) can involve no credibility
assessment.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 509. “The relevant inquiry is not
whether [the employer’s] proffered reasons were wise, fair or correct, but whether [the
employer] honestly believed those reasons and acted in good faith upon these beliefs.”
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999), overruled on other
grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Once the defendant produces a legitimate, nondiscriminatory explanation for the
defendant's action, to survive summary judgment, the plaintiff must establish a genuine question
of material fact whether the defendant’s explanation is pretextual. See Pushkin v. Regents of
Univ. of Colo., 658 F.2d at 1387. To establish a genuine issue of material fact as to pretext, a
plaintiff must demonstrate that the defendant’s “proffered non-discriminatory reason is unworthy
of belief.” Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). To meet this standard, a
plaintiff must produce evidence of “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997)(internal quotation marks omitted)(quoting Olson v. Gen. Elec.

- 213 -

Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). “If a plaintiff advances evidence upon which a
factfinder could conclude that the defendant’s allegedly nondiscriminatory reasons for the
employment decisions are pretextual, the court should deny summary judgment.” Reinhardt v.
Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1134. “[A] plaintiff’s prima facie case [of
discrimination], combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

Consequently, “once a plaintiff presents evidence sufficient to create a genuine factual dispute
regarding the veracity of a defendant’s nondiscriminatory reason, we presume the jury could
infer that the employer acted for a discriminatory reason and must deny summary judgment.”
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005).
Debunking one of the employer’s explanations defeats the case for summary
judgment “only if the company has offered no other reason that, if that reason
stood alone (more precisely if it did not have support from the tainted reason),
would have caused the company to take the action of which the plaintiff is
complaining.”
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir. 2005)(emphasis in Russell v.
Acme-Evans Co.)(quoting Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995)).
7.

Exhaustion of Administrative Remedies.

Until recently, the Tenth Circuit remained steadfast that “[t]he exhaustion of
administrative remedies is a jurisdictional prerequisite to instituting an action in federal court
under both the Rehabilitation Act and Title VII.” Showalter v. Weinstein, 233 F. App’x 803,

- 214 -

804 (10th Cir. 2007)(unpublished)(citations omitted). The Tenth Circuit recently overruled this
precedent, however, holding “that a plaintiff’s failure to file an EEOC charge regarding a
discrete employment incident merely permits the employer to raise an affirmative defense of
failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”
Lincoln v. BNSF Ry., 900 F.3d 1166, 1185 (10th Cir. 2018). This holding rested, in part, on 42
U.S.C. § 2000e-5(f)(3)’s plain language. See Lincoln v. BNSF Ry., 900 F.3d at 1184-85.
Accordingly, the holding also applies to Rehabilitation Act precedent requiring exhaustion,
because, the Rehabilitation Act incorporates “[t]he remedies, procedures, and rights set forth in
section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of
sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k))” for violations of § 501, 29
U.S.C. § 794a(a)(1), and incorporates “[t]he remedies procedures, and rights set forth in title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)(and in subsection (e)(3) of section 706
of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation)” for
violations of §504 “by any recipient of Federal assistance or Federal provider of such
assistance,” 29 U.S.C. § 794a(a)(2). See also Woodman v. Runyon, 132 F.3d 1130, 1341 (10th
Cir. 1997)(stating that “[t]he Rehabilitation Act encompasses [Title VII’s] exhaustion
requirement”). Accordingly, federal courts in the Tenth Circuit now have jurisdiction over
Rehabilitation Act claims for which a plaintiff has not exhausted administrative remedies,
although the failure to exhaust may be grounds for a motion to dismiss. See Lincoln v. BNSF
Ry., 900 F.3d at 1186. Exhaustion of administrative remedies is not always required, however,

- 215 -

under the Rehabilitation Act. See McGeshick v. Principi, 357 F.3d at 1149 (“Exhaustion of
administrative remedies is not necessary to sustain a Rehabilitation Act claim.”).
The United States Department of Health and Human Services regulations regarding the
procedures under § 504 provide that “[t]he procedural provisions applicable to title VI of the
Civil Rights Act of 1964 apply to this part,” and that the “procedures are found in §§ 80.6
through 80.10 and Part 81 of this Title.” 45 C.F.R. § 84.61. See also 45 C.F.R. § 84.1 (“The
purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, which is
designed to eliminate discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.”).

These procedures create a public administrative

remedy, providing for the “suspension or termination of or refusal to grant or to continue Federal
financial assistance.” 45 C.F.R. § 80.8(a). Accordingly, in 1981, the Tenth Circuit determined
that a non-federal-employee plaintiff need not exhaust administrative remedies to bring a § 504
claim, as the administrative redress -- “suspension or termination of the federal assistance” -“would be an empty remedy indeed for the plaintiff herein who was seeking to continue his
residency program.” Pushkin v. Regents of the Univ. of Colo., 658 F.3d at 1381. The Tenth
Circuit therefore held that “under s 504 of the Rehabilitation Act the plaintiff is not compelled to
pursue a remedy which is irrelevant to his particular need.” Pushkin v. Regents of Univ. of
Colo., 658 F.2d at 1382. The Tenth Circuit reiterated this holding the following year by holding
that the plaintiff class did not need to exhaust its state administrative remedy, because the
“administrative process provided in this case poses both quality of relief and time lapse problems

- 216 -

to the class.” N.M. Ass’n for Retarded Citizens v. New Mexico, 678 F.2d 847, 851 (10th Cir.
1982). Accordingly, there is no exhaustion requirement for a private person to bring a § 504
Rehabilitation Act claim against an employer that receives federal funding. See McGeshick v.
Principi, 357 F.3d at 1149; Pushkin v. Regents of Univ. of Colo., 1380-82; Werback v. Univ. of
Ark., No. 15-9273-CM, 2016 WL 3522042, at *1 (D. Kan. June 28, 2016)(Murguia, J.)(“Neither
does Section 504 independently require exhaustion of administrative remedies.”); Ombe v.
Martinez, No. 14-CV-00763 RB/KBM, 2015 WL 13662809, at *2 (D.N.M. May 28,
2015)(Brack, J.)(“However, exhaustion of administrative remedies is not a mandatory
prerequisite for a non-federal employee filing suit under section 504 of the [Rehabilitation]
Act.”).
“[A]ny person aggrieved” by a violation of § 504 may seek relief under
§ 505(a)(2), which permits plaintiffs to invoke “[t]he remedies, procedures, and
rights” set forth in Title VI of the Civil Rights Act of 1964. Because exhaustion
of administrative remedies is not a prerequisite to a Title VI claim, it is well
settled that it is not a prerequisite to a private cause of action under § 504(a)(2).
Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, 437 F. Supp. 2d 1233, 1254 (D. Kan.
2006)(Lungstrum, J.)(quoting 29 U.S.C. § 794(a)). See Taylor v. City of Shreveport, 798 F.3d at
284 (“Although a plaintiff must exhaust his or her administrative remedies before pursuing a
Rehabilitation Act claim against a federal agency, it need not do so before suing a federal
grantee.” (emphasis in original)).

- 217 -

LAW REGARDING THE REHABILITATION ACT’S STATUTE OF LIMITATIONS
Congress did not provide a statute of limitations for the Rehabilitation Act.
For federal causes of action created prior to 1990 for which “Congress has not
established a time limitation for a federal cause of action, the settled practice [is]
to adopt a local time limitation as federal law if it is not inconsistent with federal
law or policy to do so.”
Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d at 1171-72 (quoting Wilson v. Garcia, 471
U.S. 261, 266-67 (1985), superseded by statute Judicial Improvements act of 1990, 28 U.S.C.
§ 1658).106 The Tenth Circuit, in accordance with other United States Courts of Appeals, has
determined that § 504 of the Rehabilitation Act “is a ‘civil rights statute . . . closely analogous to
section 1983.’” Baker v. Bd. of Regents of the State of Kan., 991 F.2d at 631 (quoting Hall v.
Knott Cty. Bd. of Educ., 941 F.2d 402, 408 (6th Cir. 1991)). The Supreme Court held in Wilson
v. Garcia that 42 U.S.C. “§ 1983 claims are best characterized as personal injury actions.” 471
U.S. at 280. Accordingly, the Tenth Circuit held that, “[b]ecause a section 504 claim is closely
analogous to section 1983, . . . section 504 claims are best characterized as claims for personal
injuries.” Baker v. Bd. of Regents of the State of Kan., 991 F.2d at 632. Accordingly, a § 504
claim “must be brought within the period prescribed by state law for personal injury actions.”
Baker v. Bd. of Regents of the State of Kan., 991 F.2d at 632 (citing Wilson v. Garcia, 471 U.S.
at 276). In the State of New Mexico, the statute of limitations for a personal injury action is

106

Section 1658 applies only “with respect to causes of action accruing on or after the
date of the enactment of this act,” 28 U.S.C. § 1658 note (Effective Date), which is December 1,
1990, see 28 U.S.C. § 1658 note (References in Text). Wilson v. Garcia still applies, then, to
federal causes of action which accrued before that date.

- 218 -

three years, see N.M. Stat. Ann. § 37-1-8, so a Rehabilitation Act claim must be brought within
three years of the date of accrual.
LAW REGARDING CLAIM ACCRUAL
“Federal law controls questions relating to accrual of federal causes of action.” Baker v.
Bd. of Regents of the State of Kan., 991 F.2d at 632 (citing Newcomb v. Ingle, 827 F.2d 675,
678 (10th Cir. 1987)). Accrual, and the start of the limitations period, “commences when the
plaintiff has a ‘complete and present cause of action,’” i.e., “the plaintiff can file suit and obtain
relief.” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., Inc., 522
U.S. 192, 201 (1997)(quoting Rawlings v. Ray, 312 U.S. 96, 98 (1941)). “In general, under the
federal discovery rule, claims accrue and ‘[t]he statute of limitations begins to run when the
plaintiff knows or has reason to know of the existence and cause of the injury which is the basis
of his action.’” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004)(alteration in
Alexander v. Oklahoma)(quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15
F.3d 963, 969 (10th Cir. 1994)). “A plaintiff need not know the full extent of his injuries before
the statute of limitations begins to run.”

Indus. Constructors Corp. v. U.S. Bureau of

Reclamation, 15 F.3d at 969 (citing Gustavson v. United States, 655 F.2d 1034, 1036 (10th Cir.
1981); Robbins v. United States, 624 F.2d 971, 973 (10th Cir. 1980)). The focus is “on whether
the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct
caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover
facts giving rise to a claim for relief.” Alexander v. Oklahoma, 382 F.3d at 1216 (citations

- 219 -

omitted). There is no requirement that the plaintiff “have conclusive evidence of the cause of an
injury in order to trigger the statute of limitations.” Alexander v. Oklahoma, 382 F.3d at 1216.
LAW REGARDING THE RELATION-BACK DOCTRINE
Rule 15(c) reads:
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation
back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out -- or attempted to be set out -- in the original
pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c).
Rule 15(c) provides that, where an amendment would add a party, “relation back” can
occur if the party to be added by the amendment “has received such notice of the initiation of the
action that the party would not be prejudiced in maintaining a defense on the merits.” Brown v.
Uniroyal, Inc., 108 F.3d 1306, 1307 (10th Cir. 1997)(internal quotation marks omitted)(quoting a
prior version of Fed. R. Civ. P. 15(c)). “Relation back is dependent upon four factors, all of
which must be satisfied.” Schiavone v. Fortune, 477 U.S. 21, 29 (1986). The factors are: (i) “the

- 220 -

basic claim must have arisen out of the conduct set forth in the original pleading”; (ii) the party
to be added “must have received such notice that it will not be prejudiced in maintaining its
defense”; (iii) “that party must or should have known that, but for the mistake concerning
identity, the action would have been brought against it”; and (iv) “the second and third
requirement must have been fulfilled within the prescribed limitations period.” Schiavone v.
Fortune, 477 U.S. at 29. “Rule 15(c), which exists to protect defendants from unfair prejudice
caused by a plaintiff’s tardiness in naming them, applies to pro se complaints as to any others.”
Pierce v. Amaranto, 276 F. App’x 788, 792 (10th Cir. 2008)(unpublished). In Krupski v. Costa
Crociere S.P.A., 560 U.S. 538 (2010), the Supreme Court held that “relation back under Rule
15(c)(1)(C) depends on what the party to be added knew or should have known, not on the
amending party’s knowledge or its timeliness on seeking to amend the pleading.” 560 U.S. at
541. The Supreme Court explained:
[T]he question under Rule 15(c)(1)(C)(ii) is what the prospective defendant
reasonably should have understood about the plaintiff’s intent in filing the
original complaint against the first defendant. To the extent the plaintiff’s
postfiling conduct informs the prospective defendant’s understanding of whether
the plaintiff initially made a “mistake concerning the proper party’s identity,” a
court may consider the conduct. Cf. Leonard v. Parry, 219 F.3d 25, 29 (C.A.1
2000)(“[P]ost-filing events occasionally can shed light on the plaintiff’s state of
mind at an earlier time” and “can inform a defendant’s reasonable beliefs
concerning whether her omission from the original complaint represented a
mistake (as opposed to a conscious choice)”). The plaintiff’s postfiling conduct is
otherwise immaterial to the question whether an amended complaint relates back.
Krupski v. Costa Crociere S.P.A., 560 U.S. 553-54.

- 221 -

LAW REGARDING RECUSAL
An important feature of the judicial system is that judges are fair and impartial arbiters of
the disputes before them. 28 U.S.C. § 455(a) states: “Any justice, judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” Certain listed circumstances also require a judge to recuse himself:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or
a lawyer with whom he previously practiced law served during such association
as a lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it;
(3) Where he has served in governmental employment and in such capacity
participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either
of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the
proceeding.
28 U.S.C. § 455(b).

- 222 -

The Tenth Circuit has emphasized, however, that “a judge has as strong a duty to sit
when there is no legitimate reason to recuse as he does to recuse when the law and facts require.”
Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (citing United States v. Greenspan, 26 F.3d
1001, 1005 (10th Cir. 1994); Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1501
(10th Cir. 1994); Hinman v. Rogers, 831 F.2d at 939). Thus, the recusal statute “must not be so
broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the
merest unsubstantiated suggestion of personal bias or prejudice.” United States v. Hines, 696
F.2d 722, 729 (10th Cir. 1982). Moreover, the recusal “statute is not intended to give litigants a
veto power over sitting judges, or a vehicle for obtaining a judge of their choice.” United States
v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)(citing In re United States, 666 F.2d 690, 694 (1st
Cir. 1981); United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986)(per curiam)). See
Advanced Optics Elecs., Inc., v. Robins, No. CIV 07-0855 JB/GBW, 2011 WL 1103830, at *4-5
(D.N.M. 2011)(Browning, J.)(finding recusal not warranted where the Court had accounts with
Wells Fargo, but Wells Fargo had no interest in the case).
LAW REGARDING RULE 401 OF THE FEDERAL RULES OF EVIDENCE
“The rules of evidence contemplate the admission of relevant evidence, and the exclusion
of irrelevant and potentially prejudicial evidence.” Train v. City of Albuquerque, 629 F.Supp.2d
1243, 1247 (D.N.M. 2009)(Browning, J.)(citing Fed. R. Evid. 401, 402 & 403). “Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.

- 223 -

See United States v. Gutierrez-Castro, No. CR 10-2072 JB, 2011 WL 3503321, at *3 (D.N.M.
Aug. 6, 2011)(Browning, J.)(“Relevant evidence is evidence that has a tendency to ‘make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.’” (quoting a prior version of Fed. R. Evid.
401)). “The standard for relevancy is particularly loose under rule 401, because ‘[a]ny more
stringent requirement is unworkable and unrealistic.’”

United States v. Ganadonegro, 854

F.Supp.2d 1088, 1127 (D.N.M. 2012)(Browning, J.)(alteration in United States v.
Ganadonegro)(quoting Fed. R. Evid. 401 advisory committee’s notes). Irrelevant evidence, or
that evidence which does not make a fact of consequence more or less probable, however, is
inadmissible. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”).
LAW REGARDING RULE 403 OF THE FEDERAL RULES OF EVIDENCE
Rule 403 provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Under rule 403, the trial court must weigh the
proffered evidence’s probative value against its potential for unfair prejudice. See United States
v. Record, 873 F.2d 1363, 1375 (10th Cir. 1989). “Relevant evidence is inherently prejudicial;
but it is only unfair prejudice, substantially outweighing probative value, which permits
exclusion of relevant matter under Rule 403.” United States v. Naranjo, 710 F.2d 1465, 1469
(10th Cir. 1983)(emphasis in original)(internal quotation marks omitted)(quoting United States v.

- 224 -

McRae, 593 F.2d 700, 707 (5th Cir. 1979)). The Tenth Circuit has reminded district courts that
they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise
admissible under the other rules is an extraordinary remedy and should be used sparingly.”
United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010)(internal quotation marks
omitted)(quoting United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001)).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s
discretion, see United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998)(“The decision to
exclude evidence under Rule 403 is within the sound discretion of the trial court . . . .”), and the
trial court’s discretion to balance possible unfair prejudice against probative value is broad, see
Deters v. Equifax Credit Info. Servs., 202 F.3d 1262, 1274 (10th Cir. 2000); SEC v. Peters, 978
F.2d 1162, 1171 (10th Cir. 1992). As the Supreme Court has noted:
In deference to a district court's familiarity with the details of the case and
its greater experience in evidentiary matters, courts of appeals afford broad
discretion to a district court's evidentiary rulings.
....
This is particularly true with respect to Rule 403 since it requires an “onthe-spot balancing of probative value and prejudice, potentially to exclude as
unduly prejudicial some evidence that already has been found to be factually
relevant.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)(quoting 1 Steven A.
Childress & Martha S. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See
United States v. Abel, 469 U.S. 45, 54 (1984)(“Assessing the probative value of [proffered

- 225 -

evidence], and weighing any factors counseling against admissibility is a matter first for the
district court’s sound judgment under Rules 401 and 403 . . . .”).
Evidence may be unfairly prejudicial if it would likely provoke the jury’s emotional
response or would otherwise tend to adversely affect the jury’s attitude toward a particular
matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). Evidence is not
unfairly prejudicial merely because it damages a party’s case. See United States v. Caraway, 534
F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003);
United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991). Rather, “[t]o be unfairly
prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.’” United States v. Caraway, 534 F.3d at
1301 (emphasis in original)(quoting Fed. R. Evid. 403 advisory committee’s notes).
ANALYSIS
The Court will grant UNM’s MSJ, because Dr. Rivero has not established a genuine issue
of material fact as to UNM’s discriminatory conduct. First, the Court can and will reconsider
Magistrate Judge Lynch’s MTD Order regarding accrual of the illegal-medical-inquiry claim,
because it is in contravention of the law. The Court concludes that this claim accrued when
Dr. Rivero received the Addendum in early 2011, and thus the statute of limitations bars the
illegal-medical-inquiry claim, because Dr. Rivero did not file his first Complaint until April,
2016. Second, the Court concludes that the undisputed evidence does not establish a genuine
question whether UNM illegally discriminated against Dr. Rivero because it regarded him as

- 226 -

disabled. Third, as to Dr. Rivero’s contention that UNM failed to address his retaliation claim so
it is preserved for trial, see Rivero’s Response at 35, the Court concludes that Dr. Rivero states a
claim for retaliation in his FAC, but UNM’s Reply correctly alleges that UNM is entitled to
summary judgment on this claim. Accordingly, the Court grants summary judgment in UNM’s
favor as to all of Dr. Rivero’s Rehabilitation Act claims.
This grant of summary judgment moots Rivero’s MSJ and the Psychological MIL.107
The Court nonetheless reaches the merits of these motions. The Court agrees with Magistrate
Judge Lynch that Dr. Rivero’s FAC “stated a claim for which relief can be granted” and thus
would strike affirmative defense I. Answer at 10. The Court would also strike affirmative
defense XV -- “Defendant reserves the right to amend its Answer to Plaintiff’s Complaint to
include additional Affirmative Defenses once facts supporting the same become known” -because UNM concedes that this defense should be struck. Answer at 11. See June 26 Tr. at
100:22-25 (Marcus). The Court would also strike affirmative defense XIII -- “[a]t all times
Defendant UNM acted in accordance with its polices and regulations, and applied such polices
and regulations consistent and fairly,” Answer at 10 -- because UNM admits that it has no set
policies regarding imposing psychiatric examinations to follow, see June 26 Tr. at 102:8-14
(Marcus). The Court would not strike the other affirmative defenses with which Dr. Rivero has
107

The Court’s grant of summary judgment for UNM ends the case, because UNM has
shown it is entitled to judgment on all of Dr. Rivero’s claims as a matter of law, so there is no
reason for the Court to decide which affirmative defenses UNM may not utilize, as Rivero’s MSJ
seeks, or whether UNM should be precluded from using the term “psychological evaluation” at a
trial, as the Psychological MIL seeks. Accordingly, Rivero’s MSJ and the Psychological MIL
are moot.

- 227 -

issue -- II, the “Plaintiff’s claims are barred by the statute of limitations”; III, the “Plaintiff’s
claims are barred by the doctrine of laches and waiver”; and XIV, “Defendant UNM fulfilled any
and all obligations it had to Plaintiff under contract or statute” -- because the Court is not
convinced that there are no circumstances under which these defenses could succeed. Answer at
10-11. See Friends of Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp. at 1343. Accordingly,
the Court would grant Rivero’s MSJ in part, and deny it in part if it were not mooted. The Court
would grant the Psychological MIL if it were not mooted, because using the term
“psychological” outside of closing argument would mislead and confuse the jury.

The

Complaints MIL discusses the use of pre-2006 complaints at trial, but its argument on their
irrelevance touches on what the Court may properly consider in deciding UNM’s MSJ, so the
Court must reach its merits. See Complaints MIL at 4. The Court concludes that the pre-2006
complaints are relevant to whether the psychiatric evaluation requirement is job-related and
consistent with business necessity, so the Court will deny the Complaints MIL.
Finally, the Court will deny the Recusal Motion. There are no facts or circumstances that
would lead a reasonable person to question the Court’s impartiality. Further, the Court does not
have an interest that could be substantially affected by the proceeding’s outcome. Accordingly,
the Court should exercise its strong duty to sit and will not recuse.

- 228 -

I.

THE COURT MAY RECONSIDER THE MTD ORDER AND CONCLUDES
THAT THE STATUTE OF LIMITATIONS BARS THE ILLEGAL-MEDICALINQUIRY CLAIM.
The MTD Order, as an interlocutory order, “may be revised at any time before the entry

of a [final] judgement.” Fed. R. Civ. P. 54(b). Unlike Dr. Rivero’s assertion that the law-of-thecase doctrine applies to cabin the Court’s discretion on reconsideration, the Tenth Circuit has
stated that, in the interlocutory order context, the “law of the case doctrine has no bearing.”
Rimbert v. Eli Lilly & Co., 647 F.3d at 1252. The Court makes a practice of de novo review of
arguments reasserted at the summary-judgment stage that were originally brought at the motionto-dismiss stage. Magistrate Judge Lynch made his decision assuming all allegations in the FAC
as true; however, at this stage of the proceedings, the Court has undisputed facts on which to
base its decision. Accordingly, the Court reviews Magistrate Judge Lynch’s ruling on the illegalmedical-inquiry claim’s date of accrual de novo, and concludes that the claim accrued in 2011,
so Dr. Rivero’s FAC -- which relates back to his original Complaint -- is untimely.
A.

THE ILLEGAL-MEDICAL-INQUIRY CLAIM
DR. RIVERO RECEIVED THE ADDENDUM.

ACCRUED

WHEN

A claim accrues and starts the limitations period when the plaintiff “knew of facts that
would put a reasonable person on notice that wrongful conduct caused the harm.” Alexander v.
Oklahoma, 382 F.3d at 1216. This rule does not require that the plaintiff “have conclusive
evidence of the cause of an injury in order to trigger the statute of limitations.” Alexander v.
Oklahoma, 382 F.3d at 1216. For example, in Baker v. Board of Regents of the State of Kansas,
the Tenth Circuit held that the plaintiff’s claim accrued “in early February of 1986,” because that

- 229 -

is when the plaintiff “knew that his application had been rejected, and he had met with
Dr. Jensen and knew that the reason for rejection was a poor interview,” so he “knew, or had
reason to know of the injury which formed the basis for this action.” 991 F.2d at 632.
Dr. Rivero’s alleged injury here is that UNM required that he undergo a four-part
psychiatric evaluation as a condition of his increase to 0.75 FTE, in contravention of the
Rehabilitation Act. See FAC ¶ 48, at 9 (citing 24 U.S.C. § 12112(d)(4), which the Rehabilitation
Act adopts in § 794(d)).108 Dr. Rivero alleges that these evaluation requirements “were not jobrelated and were not consistent with business necessity.” FAC ¶ 49, at 10. Magistrate Judge
Lynch’s decision as to the claim’s accrual rests on his assumption that “the lack of business
necessity is an element of the claim,” MTD Order at 8, meaning Dr. Rivero’s claim was not
“complete and present” until he had reason to believe UNM did not have a business necessity in
its evaluation request, Graham Cty. Soil & Water Conservation Dist. v. United States ex rel
Wilson, 545 U.S. at 418. This assertion, however, is incorrect. All Dr. Rivero needs to make a
prima facie case of an illegal medical inquiry is: “(1) that he is an employee of the defendant
employer, and (2) that the defendant-employer required him to undergo a medical examination or
made a disability-related inquiry of him.” Williams v. FedEx Corp. Servs., 849 F.3d at 901

108

UNM is not a federal agency and Dr. Rivero is not a federal employee. UNM does not
dispute, however, that it receives federal funding, thus bringing it under the Rehabilitation Act’s
auspices. As a non-federal employee, however, Dr. Rivero did not have to exhaust his
administrative remedies before suing under § 794. See McGeshick v. Principi, 357 F.3d at 1149.
Further, for purposes of deciding the accrual issue, the Court assumes that the psychiatric
evaluation requirement constitutes a “medical examination” or an “inquiry” into whether
Dr. Rivero has a disability under the ADA § 12112, as it will decide this issue in Section II.A.

- 230 -

(citing Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d at 1229). Although
Williams v. FedEx Corp. Services is an ADA case, discussing the standard under § 12112(d)(A),
see 849 F.3d at 901, the Rehabilitation Act adopts this standard so ADA caselaw is applicable,
see 29 U.S.C. § 794(d); Woodman v. Runyon, 132 F.3d at 1339 n.8.
Accordingly, Dr. Rivero’s claim was “complete and present” once UNM required him to
undergo a four-part psychiatric evaluation, because, at that point, he “c[ould] file suit and obtain
relief.” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., Inc., 522
U.S. at 201. Cf. Green v. Joy Cone Co., 107 F. App’x 278, 280 (3d Cir. 2004)(“[A] violation of
§ 12112(d) occurs at the moment an employer conducts an improper medical examination or
asks an improper disability-related question, regardless of the results or response.” (citing
Griffin v. Steeltek, Inc., 160 F.3d 591 (10th Cir. 1998); Armstrong v. Turner Indus., Inc., 141
F.3d 554 (5th Cir. 1998))). Dr. Rivero did not need to believe that the evaluation requirement is
not job-related or consistent with business necessity for his claim to accrue; rather, a showing
that the requirement is job-related and consistent with business necessity would allow UNM to
avoid liability for the claim. See 42 U.S.C. § 12112(d)(4)(A); Williams v. FedEx Corp. Servs.,
849 F.3d at 901. Thus, it is UNM’s burden to prove job-relatedness and business necessity, and
not Dr. Rivero’s to disprove them to have a claim for relief. UNM’s Addendum to Dr. Rivero’s
employment contract required that Dr. Rivero undergo a four-part psychiatric evaluation to
increase his employment from 0.05 FTE to 0.75 FTE. See Addendum ¶ 2, at 2; id. at 1. The
undisputed facts reveal that Dr. Rivero received the Addendum “[i]n early 2011.” Rivero’s

- 231 -

Response ¶ 30, at 15.

The record before the Court does not reveal the exact date when

Dr. Rivero received the Addendum.109 The undisputed facts show, however, that Dr. Rivero sent
an email on March 9, 2011, requesting an extension to sign the Addendum, so he knew of
UNM’s evaluation requirement by March 9, 2011. See UNM’s MSJ ¶ 42, at 10; Rivero’s
Response ¶ 42, at 7.

Further, that Dr. Rivero sought access to his credentialing file “to

investigate any support whatsoever for the requirement of a psychiatric investigation” indicates
that he believed the requirement was improper. Rivero’s Response ¶ 36, at 17. That Dr. Rivero
did not know until 2014 that he had all of his documents has no bearing on the accrual analysis,
however, because the relevant inquiry is when Dr. Rivero knew of the medical inquiry
requirement and not when he could establish that UNM allegedly had no business necessity for
the requirement. Dr. Rivero’s illegal-medical-inquiry claim accrued, therefore, at the latest, on
March 9, 2011, because that is when he knew of the evaluation requirement.
B.

THE STATUTE OF LIMITATIONS BARS THE ILLEGAL-MEDICALINQUIRY CLAIM.

In New Mexico, the State’s personal injury statute of limitations governs a Rehabilitation
Act claim for an illegal medical inquiry. See Baker v. Bd. of Regents of the State of Kan., 991
F.2d at 632 (citing Wilson v. Garcia, 471 U.S. at 276). In the State of New Mexico, the statute
of limitations for a personal injury action is three years. See N.M. Stat. Ann. § 37-1-8. Thus, in

109

Dr. Rivero stated that he did not “remember exactly” when he received the Addendum,
but that he believed “it was at the beginning of March of 2011.” Rivero Depo. 191 at 227:2, 5.

- 232 -

New Mexico, a Rehabilitation Act claim must be brought within three years of the date of
accrual.
Here, Dr. Rivero’s illegal-medical-inquiry claim accrued by March 9, 2011. Dr. Rivero
filed his first Complaint on April 19, 2016, more than five years after UNM required that
Dr. Rivero undergo psychiatric evaluations to increase his employment. See Complaint at 1.
Thus, that the FAC relates back to the Complaint, because the FAC “asserts a claim . . . that
arose out of the conduct . . . set out -- or attempted to be set out -- in the original pleading,” Fed.
R. Civ. P. 15(c), does not save Dr. Rivero’s medical inquiry claim, compare Complaint ¶¶ 10-46,
at 2-9, with FAC ¶¶ 8-44, at 2-9. The three-year statute of limitations has run. Dr. Rivero
waited too long to bring suit on this claim. Dr. Rivero had sufficient knowledge of his injury
within the limitations period to bring a timely case on the illegal-medical-inquiry claim. That
Dr. Rivero filed a charge of discrimination with the EEOC “claiming that the psychological
evaluation requirement was not job related and consistent with business necessity” on January
20, 2012, bolsters this conclusion. UNM’s MSJ ¶ 45, at 10. Dr. Rivero does not request that the
Court apply the doctrine of equitable tolling, and there is no sound reason to apply this doctrine.
Dr. Rivero knew of the examination requirement by March 9, 2011, and as indicated by his
EEOC charge, could have filed suit within the three-year statute of limitations. Accordingly, the

- 233 -

statute of limitations bars the illegal-medical-inquiry claim, and UNM is entitled summary
judgment on this claim.110
II.

THE UNDISPUTED FACTS ESTABLISH THAT THE PSYCHIATRIC
EVALUATION REQUIREMENT IS JOB RELATED AND IS CONSISTENT
WITH BUSINESS NECESSITY.
UNM argues that, in addition to being time-barred, Dr. Rivero’s illegal-medical-inquiry

claim fails, because the psychiatric evaluation requirement “was job related and consistent with
business necessity.”

UNM’s MSJ at 16.

With Dr. Rivero’s reliance on this claim as a

discriminatory act supporting his constructive discharge claim, the Court finds it prudent to
decide the issues whether the psychiatric evaluation requirement is (i) job related and
(ii) consistent with business necessity. Although the parties do not raise the issue whether the
psychiatric evaluation is a medical examination, the Court concludes that it must determine this
issue, because it is an element of Dr. Rivero’s prima facie case. The Court concludes that a
reasonable jury could conclude that the psychiatric evaluation requirement would constitute a
medical examination under the Rehabilitation Act. Dr. Rivero does not, however, show that
there is a genuine issue of material fact whether UNM’s proffered job-related and consistentwith-business-necessity reason for imposing the requirement was pretextual.

110

Dr. Rivero requests that the Court strike UNM’s affirmative defense II -- that Dr.
Rivero’s “claims are barred by the statute of limitations,” Answer at 10 -- alleging that the
argument “has already been disposed by the Court[ and] is not supported by record evidence and
the law.” Rivero’s MSJ at 11 (title case omitted). As the Court has discussed in this Part,
however, UNM’s statute-of-limitations argument regarding the illegal-medical-inquiry claim is
sound, and, thus, the Court will not strike this defense.

- 234 -

A.

A REASONABLE JURY COULD CONCLUDE THAT THE
ADDENDUM’S
FOUR-PART
PSYCHIATRIC
EVALUATION
REQUIREMENT CONSTITUTES A “MEDICAL EXAMINATION”
UNDER THE REHABILITATION ACT.

The Rehabilitation Act adopts the ADA’s proscription of employers requiring medical
examinations or inquiries of employees, absent job relatedness and business necessity. See 29
U.S.C. § 794(d); 42 U.S.C. § 12112(d)(4)(A). The ADA does not, however, define what it
means by the term “medical examination.”

Its legislative history is also unhelpful in

illuminating the meaning of this term. See Kroll v. While Lake Ambulance Auth., 691 F.3d at
815 & n.8 (“These pieces of legislative history do not elucidate the meaning of ‘medical
examination.’”). The Court cannot find a Tenth Circuit case discussing how to determine if an
employer’s requirement is considered a “medical examination” or a disability-related inquiry
under the Rehabilitation Act. The Tenth Circuit has held that, generally, an employer may not
“us[e] a medical exam to determine the existence, nature, or severity of a disability.” Iselin v.
Bama Cos., 690 F. App’x 593, 597 (10th Cir. 2017)(unpublished)(citing 42 U.S.C.
§ 12112(d)(2)(A), (4)(A)). Further, the Tenth Circuit has cited to the Sixth Circuit’s decision in
Bates v. Dura Automotive Systems, Inc. for its “identif[ication of] factors relevant to
determining whether an employer improperly imposed a medical examination or made a
disability-related inquiry.” Williams v. FedEx Corp. Servs., 849 F.3d at 901 (citing Bates v.
Dura Auto. Sys., Inc., 767 F.3d at 574-75, 578-79).
The Sixth Circuit identified that the medical examination/inquiry prohibition “reflects
Congress’s effort to ‘curtail all questioning that would serve to identify and exclude persons with

- 235 -

disabilities from consideration for employment.’” Bates v. Dura Auto. Servs., Inc., 767 F.3d at
574 (quoting Griffin v. Steeltek, Inc., 160 F.3d at 594). To determine what constitutes a
“medical examination” or “disability-related inquiry,” the Sixth Circuit looks to the EEOC’s
Enforcement Guidance. See Bates v. Dura Auto. Servs., Inc., 767 F.3d at 574; Kroll v. White
Lake Ambulance Auth., 691 F.3d at 815 (recognizing that the Guidance “is ‘very persuasive
authority’ in questions of statutory interpretation of the ADA” (quoting Lee v. City of Columbus,
636 F.3d 245, 256 (6th Cir. 2011))). The EEOC Enforcement Guidance is non-binding and “is
only entitled to [a court’s] respect to the extent that it has the ‘power to persuade.’” EEOC v.
C.R. Eng., Inc., 644 F.3d 1028, 1047 n.16 (10th Cir. 2011).
The EEOC’s Enforcement Guidance on the definition of “medical examination” is
persuasive, however, because it is consistent with the statute’s plain language and helps to
interpret the term’s meaning. The Guidance defines “medical examination” as a “procedure or
test that seeks information about an individual’s physical or mental impairments or health,” and
provides seven factors to consider in determining if a procedure or test meets this definition:
(1) whether the test is administered by a health care professional; (2) whether the
test is interpreted by a health care professional; (3) whether the test is designed to
reveal an impairment or physical or mental health; (4) whether the test is invasive;
(5) whether the test measures an employee's performance of a task or measures
his/her physiological responses to performing the task; (6) whether the test
normally is given in a medical setting; and, (7) whether medical equipment is
used.
EEOC Enforcement Guidance, 2000 WL 33407181, at *3. The Court is cognizant that the
psychiatric evaluations never occurred, so it cannot say certainly that they would have

- 236 -

constituted a medical examination. This observation is especially true, because the parties
dispute what the evaluation requirement contemplated, with UNM arguing that the evaluations
constituted the counseling to which Dr. Rivero agreed, see UNM’s Reply at 15 (stating that the
Addendum’s “language generally followed the agreed upon four counseling sessions with a
psychiatrist”), and with Dr. Rivero arguing that the evaluations involved more invasive mental
examinations, see Rivero’s Response at 24 & n.24 (stating that the Addendum has “no
limitations to the scope of the psychiatric evaluation” and that, had the psychiatrist recommended
“a frontal lobotomy[,] . . . then it would have been mandatory” (emphasis in original)).
Accordingly, the Court must make all inferences for and examine the record in the light most
favorable to Dr. Rivero, the nonmoving party. See Liberty Lobby, 477 U.S. at 255.
Here, the first and second factors are met -- a health professional’s administration and
interpretation -- because the Addendum requires that the evaluation be completed “by a boardcertified psychiatrist.”

Addendum ¶ 2, at 2.

A reasonable jury could conclude that the

psychiatrist providing the evaluations “would have, at a minimum, done some interpretation of
the content of” the evaluations to assist Dr. Rivero with his alleged professionalism problems, as
“this was the reason why” UNM imposed the requirement. Kroll v. White Lake Ambulance
Auth., 691 F.3d at 819 (examining whether “psychological counseling” is a “medical
examination”). Thus, the first two factors weigh in favor of concluding that the Addendum’s
requirement is a medical examination for Rehabilitation Act purposes.

- 237 -

The third factor, “arguably the most critical in this analysis,” is whether these psychiatric
evaluations were “designed to reveal a mental-health impairment.”

Kroll v. White Lake

Ambulance Auth., 691 F.3d at 819. The EEOC Enforcement Guidance notes that “psychological
tests that are designed to identify a mental disorder or impairment” constitute a “medical
examination,” but “psychological tests that measure personality traits such as honesty,
preferences, and habits” do not. EEOC Enforcement Guidance, 2000 WL 33407181, at *4.
There is not any evidence in the record what the psychiatric evaluations were designed to
uncover, only the parties’ accusations. The term “psychiatric evaluation” seems to have a
specific meaning in the medical field, however, with Johns Hopkins Medicine stating that
[a] comprehensive psychiatric evaluation may be needed to diagnose emotional,
behavioral, or developmental disorders. An evaluation of a child, adolescent, or
adult is made based on behaviors present and in relation to physical, genetic,
environmental, social, cognitive (thinking), emotional, and educational parts that
may be affected as a result of these behaviors.
Comprehensive Psychiatric Evaluation, Johns Hopkins Med., https://www.hopkinsmedicine.org/
healthlibrary/conditions/mental_health_disorders/comprehensive_psychiatric_evaluation_85,P00
752 (last visited Feb. 8, 2019). See also Diagnosis and Psychiatric Evaluation, Stanford Health
Care,

https://stanfordhealthcare.org/medical-conditions/brain-and-nerves/dementia/diagnosis/

psychiatric-evaluation.html (last visited Feb. 9, 2019)(“A psychiatric evaluation may be obtained
to determine if depression or another psychiatric disorder may be causing or contributing to a
person's symptoms.”); Understanding Psychiatric Evaluations, 3-C Fam. Servs., P.A. (Jan. 16,
2013), http://www.3cfamilyservices.com/2013/01/16/understanding-psychiatric-evaluations/ (“A

- 238 -

psychiatric evaluation is, in its simplest terms, an evaluation designed to diagnose emotional,
behavioral, or developmental conditions or disorders.”). Accordingly, a reasonable jury could
conclude that UNM imposed the four-part psychiatric evaluation requirement to uncover and
treat a mental health defect causing Dr. Rivero’s professionalism problems, so this factor also
points in favor of concluding that the evaluations constitute a mental examination.
With the evaluations, however, not being completed and the lack of evidence regarding
what the evaluations would have entailed, the Court should not speculate as to weigh factors
four, five, six, and seven. The Court does not find these factors dispositive to its analysis, and
concludes that factors one through three -- especially three -- weighing in favor of concluding
that the psychiatric evaluation constitutes a medical examination is enough. Regardless whether
it was UNM’s intention to determine if Dr. Rivero suffered a mental disability, that the
psychiatric evaluations could uncover one is enough for a reasonable jury to conclude that they
are a medical examination for Rehabilitation Act purposes. See Kroll v. White Lake Ambulance
Auth., 691 F.3d at 820 (citing Karraker v. Rent-A-Ctr., Inc., 411 F.3d 831, 837 (7th Cir. 2005);
Barnes v. Cochran, 944 F. Supp. 897, 904-05 (S.D. Fla. 1996)(Gonzalez, J.)).
B.

UNM’S
PROFFERED
REASONS
FOR
THE
PSYCHIATRIC
EVALUATIONS REQUIREMENT SHOW THAT IT IS JOB-RELATED
AND CONSISTENT WITH BUSINESS NECESSITY.

As Dr. Rivero did not undergo the psychiatric evaluations, the Court cannot look to the
evaluations to determine whether they were job-related and consistent with business necessity.
Accordingly, the Court looks at Dr. Rivero’s record of professionalism issues to evaluate if it

- 239 -

“provide[s] sufficient objective evidence upon which [UNM] could determine that a medical
examination was job-related and consistent with business necessity.” Kroll v. White Lake
Ambulance Auth., 763 F.3d 619, 624 (6th Cir. 2014).
The Rehabilitation Act, through its adoption of the ADAAA, 111 allows employers to
“make inquiries into the ability of an employee to perform job-related functions” during the
employment relationship. Adair v. City of Muskogee, 823 F.3d at 1312 (internal quotation
marks omitted)(quoting 42 U.S.C. § 12112(d)(4)(B)). Further, an employer’s requirement of a
medical examination is permissible only if it “is shown to be job-related and consistent with
business necessity.”

42 U.S.C. § 12112(d)(4)(A). In discussing the meaning of the term

“business necessity,” the Tenth Circuit turned to the United States Court of Appeals for the
Second Circuit’s case of Conroy v. New York State Department of Correctional Services, 333
F.3d 88 (2d Cir. 2003)(“Conroy”). See Adair v. City of Muskogee, 823 F.3d at 1312. The Tenth
Circuit provides: “As the Second Circuit has noted, ‘[r]elatively little case law concerns the
proper interpretation of business necessity in this context.’” Adair v. City of Muskogee, 823
F.3d at 1312 (quoting Conroy, 333 F.3d at 97). The Tenth Circuit adopts Conroy’s observation
that “courts will readily find a business necessity if an employer can demonstrate that a medical
examination or inquiry is necessary to determine . . . whether the employee can perform jobrelated duties when the employer can identify legitimate, non-discriminatory reasons to doubt the
employee’s capacity to perform his or her duties.” Adair v. City of Muskogee, 823 at 1312
111

The ADAAA’s effective date is January 1, 2009, so, because UNM gave the
Addendum to Dr. Rivero in early 2011, the ADAAA’s revised standard applies.

- 240 -

(internal quotation marks omitted)(quoting Conroy, 33 F.3d at 98).

In other words, “[a]n

employer’s request that an employee undergo a medical examination must be supported by
evidence that would ‘cause a reasonable person to inquire as to whether an employee is still
capable of performing his job.’” Conrad v. Bd. of Johnson Cty. Comm’rs, 237 F. Supp. 2d at
1230 (alteration omitted)(quoting Sullivan v. River Valley Sch. Dist., 194 F.3d at 811).
Dr. Rivero did not submit to UNM’s psychiatric evaluation requirement, so “he precluded
himself from being able to establish a genuine issue of material fact as to whether the exams
were related to his job or were too broad in scope.” Sullivan v. River Valley Sch. Dist., 197 F.3d
at 812. UNM is thus entitled to summary judgment if: (i) the evidence establishes that UNM
required Dr. Rivero to submit to an evaluation to measure his ability to perform job-related
duties; and (ii) there is evidence that would “cause a reasonable person to inquire as to whether
[Dr. Rivero] is still capable of performing his job.” Sullivan v. River Valley Sch. Dist., 197 F.3d
at 811. See Kroll v. White Lake Ambulance Auth., 763 F.3d at 623 (stating that the medical
examination is job-related and consistent with business necessity if the employer has “a
reasonable belief based on objective evidence threatens a vital function of the business”
(citations omitted)).
For example, the Sixth Circuit in Sullivan v. River Valley School District upheld the
employer’s requirement that the employee submit to a mental examination, because the
employee’s “behavior had given the school district reason to seek further information about his
fitness for continued employment.” 197 F.3d at 812. The Sixth Circuit noted that, from 1977

- 241 -

until 1995, the plaintiff taught at the school district without complaint and with “consistently
satisfactory job evaluations,” but, in 1995, “his behavior apparently changed for the stranger.”
197 F.3d at 808. The Sixth Circuit outlined this behavior:
At a January 23 meeting of the school board that considered grievances he had
filed, Sullivan allegedly engaged in disruptive and abusive verbal outbursts,
shoved papers in the faces of individual members of the board, and refused to stop
when asked by the board president. Around February 6, Sullivan disclosed
confidential information about one of his student’s grades and a related grade
change hearing to a local newspaper. In a February 7 letter to the student
government president, Sullivan criticized a decision of the group’s faculty
sponsor in language deemed inappropriate by the district. Sullivan then failed to
report for a March 6 meeting with Superintendent Williams to discuss these
incidents.
197 F.3d at 808. In response, “Superintendent Williams contacted psychologist Timothy Onkka
for an informal review of Sullivan’s behavior,” to assess “Sullivan’s fitness as a teacher and
whether Sullivan needed professional attention.” 197 F.3d at 809. After a limited review of
materials regarding Sullivan, the psychologist suggested “a more formal psychological
assessment,” and the Superintendent suspended Sullivan without pay pending the school board’s
decision on the Superintendent’s “recommendation that Sullivan be required to undergo mental
and physical fitness-for-duty exams.” 197 F.3d at 809. The board ordered that Sullivan undergo
mental and physical fitness-for-duty examinations, but he did not comply. See 197 F.3d 809.
With Sullivan’s “aberrant behavior” affecting his job performance, the Sixth Circuit determined
that the school district did not violate the law by requiring examinations to determine Sullivan’s
ability to “perform some essential aspects of his job.” 197 F.3d at 812.

- 242 -

More recently, in Owusu-Ansah v. Coca-Cola Co., the United States Court of Appeals for
the Eleventh Circuit upheld a grant of summary judgment in favor of an employer that required
an employee to “undergo a psychiatric/psychological fitness-for-duty examination.” 715 F.3d at
1307.

First, in determining “job-relatedness,” the Eleventh Circuit looks at “‘questions or

subject matter contained in a test or criteria used by an employer’ as a basis for an employment
decision.” 715 F.3d at 1311 (quoting Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1317 (11th Cir.
2009)). The Eleventh Circuit determined that the required “evaluation was ‘job-related’ because
‘an employee’s ability to handle reasonably necessary stress and work reasonably well with
others are essential functions of any position.’” 715 F.3d at 1311 (quoting Williams v. Motorola,
Inc., 303 F.3d 1284, 1290 (11th Cir. 2002)). The coworker stated that the employee “banged his
fist on the table and said in a raised voice that someone ‘was going to pay for this’” while
discussing his issues at the workplace. 715 F.3d at 1311. Further, the employee would not speak
to a different supervisor or a psychiatrist about these workplace issues, and a psychologist to
whom he spoke voiced concerns about his “emotional and psychological stability, and
recommended a psychiatric/psychological fitness-for-duty evaluation.” 715 F.3d at 1312. The
Eleventh Circuit determined that all these circumstances provided the employer with “a
reasonable, objective concern about [the employee’s] mental state, which affected job
performance and potentially threatened the safety of its other employees.” 715 F.3d at 1312. As
to business necessity, the Eleventh Circuit “‘analyzes whether there is a business reason that
makes necessary the use by an employer of a test or criteria’ for such a decision.” 715 F.3d at

- 243 -

1311 (quoting Allmond v. Akal Sec., Inc., 558 F.3d at 1317). The Eleventh Circuit found that
the evaluation was consistent with business necessity “[f]or basically the same reasons,” because
the employer had “information suggesting that an employee is unstable and may pose a danger to
others.” 715 F.3d at 1312.
Here, UNM argues that Dr. Rivero’s “deterioration in behavior,” combined with his
“earlier history” of “several incidents of unprofessional behavior,” gave it “legitimate concerns
that Plaintiff was regressing to his earlier behavioral problems.” UNM’s MSJ at 20. Thus,
UNM contends that Dr. Rivero’s “long history of lack of professionalism, rudeness, overreaction, and anger, causing him to insult patients, other physicians, and the university patient
advocate” provided grounds for the psychiatric evaluation requirement. UNM’s MSJ at 19. The
undisputed facts support this assertion, as the Court explains below.
Closest in time to Dr. Rivero’s request to return to full-time employment is the notice of
investigation that UNM received from the United States Department of Health and Human
Services’ Office for Civil Rights in approximately March, 2007. See UNM’s MSJ ¶ 13, at 5
(citing OCR Letter at 1). 112 The OCR Letter provides that the investigation stems from a
Spanish-speaking-only patient’s complaint that Dr. Rivero failed to provide language assistance
for her and made “derogatory statements about Mexicans” in February, 2006. OCR Letter at

112

The Court is careful to rely on only undisputed facts. Occasionally, the Court will
draw a fact from the record that the parties did not use in their briefing and is, therefore, not
undisputed as neither party had a chance to dispute it. The Court will provide footnotes where
this occurs.

- 244 -

1.113 See UNM’s MSJ ¶ 13, at 5. The record available to the Court does not provide, however,
how this investigation was resolved, although Dr. Rivero contends that the allegations were
false.114 See Rivero’s Response ¶ 13, at 3; Rivero Depo. 191 at 188:16. Dr. Rivero contends

113

The Court is not relying on the substance of this complaint, or any of the complaints
that it discusses in this section, and similarly is not assuming that these complaints are true or
grounded in fact. To rely on the statements in the complaints for the truth of the matters asserted
would be relying on inadmissible hearsay, which is improper for purposes of summary judgment.
See Gross v. Burggraf Const. Co., 53 F.3d at 1541. The Court provides the substance of the
complaints only to show what UNM was learning, to explain its state of mind, and to help the
Court see to what Dr. Rivero responded in his own emails. The Court relies on the complaints
only for the fact that they were made, and for UNM’s state of mind in requiring the Addendum.
These are proper, non-hearsay purposes. See, e.g., Lee v. Burwell, No. Civ. 16-366 SCY/KK,
2018 WL 4964547, at *3 (D.N.M. Oct. 15, 2018)(Yarbrough, M.J.)(admitting evidence of
complaints “to show that the complaints were made, that Dr. Mora and/or Dr. Forman had notice
of the complaints at the time they decided to terminate Plaintiff, and that Dr. Mora terminated
Plaintiff for a race-neutral reason”); Laul v. Los Alamos Nat’l Labs., 309 F. Supp. 3d 1119, 1130
n.10 (D.N.M. 2016)(Parker, J.)(“The court will consider Mr. Selvage’s statement as non-hearsay
because it is used to show that the complaints were received and not for the truth of the actual
complaints.” (citing Fed. R. Evid. 801(c)(2); Fed. R. Civ. P. 56(c)(4))); Peshlakai v. Ruiz, 39 F.
Supp. 3d 1264, 1335 (D.N.M. 2014)(Browning, J.)(admitting evidence of complaints “only for
the limited purpose of showing that AmRest, LLC knew of the complaints”). Dr. Rivero’s
responses in his emails are not hearsay, as they are party-opponent statements. See Fed. R. Evid.
801(d)(2).
114

Dr. Rivero provides the first four pages of the United States Department of Health and
Human Services Office for Civil Rights letter providing the results of its investigation. See
Letter from the United States Department of Health and Human Services Office for Civil Rights
to Stephen McKernan (stamped August 27, 2009), filed March 8, 2018 (Doc. 191-7)(“OCR
Investigation Letter”). The Office for Civil Rights determined that there is “insufficient evidence
that the Hospital violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d through d7 (‘Title VI’), in the affected party’s case,” who had alleged national origin discrimination for
the failure to provide language services. OCR Investigation Letter at 1. The letter provides that
the only witness stated that the complainant’s allegation that Dr. Rivero made disparaging
comments about Mexicans was a miscommunication. See OCR Investigation Letter at 4. The
portion of the letter provided does not conclusively establish this finding, however, and states
only that the OCR could not determine if UNM had violated Title VI. See OCR Investigation

- 245 -

that the complaints made against him right before he moved to 0.05 FTE at UNM are also false.
E.g., Rivero’s Response ¶ 10, at 3 (stating that UNM’s proffered fact “ignores the fundamental
groundlessness of this and all other complaints against Dr. Rivero”). Two complaints similarly
allege mistreatment of Spanish-speaking-only patients, with one stating that Dr. Rivero made fun
of her for not speaking English, see UNM’s MSJ ¶ 9, at 4; June 30 Barela Email at 23, and the
other alleging that he had taken care of the financial part of his surgery but Dr. Rivero acted as if
the patient had not and was wasting his time,115 see Email from Willie Barela to Dr. Dennis
Rivero and Dr. Moheb Moneim at 26 (dated June 30, 2006), filed December 8, 2017 (Doc. 1431). A fourth complaint alleges that Dr. Rivero compared a patient, a former IV-drug user, to a
monkey and prescribed church as his treatment. See UNM’s MSJ ¶ 14, at 5; Aug. 3 Barela
Email at 25. As to this fourth complaint, Dr. Rivero admitted that he discussed a study involving
monkeys and addiction with this patient. See UNM’s MSJ ¶ 16, at 5; Rivero Depo. 143 at
120:22-121:6. That the allegations in these four complaints could be false is not dispositive.
First, the number of them in a short time span -- from February, 2006, to August, 2006 -- is
concerning. Second, the complaints show that Dr. Rivero was having misunderstandings with

Letter at 1-4. This conclusion is a separate issue from whether Dr. Rivero had acted
inappropriately with this patient or, more importantly, that there had been a patient complaint,
regardless whether true.
115

This fact is not undisputed, and, as discussed supra note 113, is inadmissible hearsay
provided only to provide context to Dr. Rivero’s response. The complaint in question provides
the basis for Dr. Rivero’s response cited in UNM’s MSJ ¶ 22, at 6.

- 246 -

his patients, so much so that they complained to the hospital’s patient advocate and, in one case,
to the United States Department of Health and Human Services’ Office for Civil Rights.
Dr. Rivero’s responses to the patient advocate, Barela, are also concerning. In response
to the first Spanish-speaking-only patient’s complaint, Dr. Rivero posits that “[p]erhaps my
spanish [sic] is different than her spanish [sic],” and writes that
[m]y record in this community as a physician is totally at odds with this
complaint. If I was a bad a doctor as you seem to allow this patient to suggest, I
would not have a 6 month waiting list for elective surgery and a two month
waiting list for appointments, and clinics that are invariably over 100% booked,
and in general just find myself overwhelmed with patients and work.
Rivero Email at 22.116 Dr. Rivero continues:
In the future I will go out of my way to avoid contact with patients in the
General Ortho clinic, nor will I speak spanish [sic] to them, (although I am fluent
in spanish [sic] and as a curtesy to the patients and the hospital I often speak to
them in spanish [sic]) as it is in this clinic where I find the most unappreciative
patients, who complain the most, demand the most, and believe that somehow I
am their slave and I am obligated to do whatever they want from me. It would
seem that this is the clinic where all of the complaints come from.
If I never had to see another patient in the General Ortho clinic it would be
just fine with me., [sic] but I will in the future just keep my distance from those
patients who are nothing but problems for me.

116

This portion of the email is not mentioned in UNM’s proffered undisputed material
facts, but as it is part of the record and is admissible the Court may consider it. See Fed. R. Civ.
P. 56(c)(3). The Rivero Email itself is admissible nonhearsay, as discussed supra note 113, and
Dr. Rivero responded to other portions of the same email which UNM did cite in its proffered
undisputed material facts. See Rivero’s Response ¶¶ 10-12, at 3. Dr. Rivero does not dispute
that he wrote this email, only that UNM mischaracterizes it in its MSJ. See Rivero’s Response
¶¶ 10-12, at 3.

- 247 -

Rivero Email at 22-23. See UNM’s MSJ ¶¶ 11-12, at 4-5. The response to the second Spanishspeaking-only patient’s complaint is similarly angry. He opens:
Please tell Mr. [patient] that I will NOT be doing his surgery on any date,
for any amount of money, under any circumstances and that I will no longer see
him. I am cancelling his surgery with me and removing him from my schedule.
He is to find another doctor. I am not his servant. His surgery is elective and can
be postponed indefinitely.
Payment Email at 26. See UNM’s MSJ ¶ 22, at 6. After explaining to Barela his side of what he
told the patient and that he does not like to cancel surgeries last minute when a patient is not
financially cleared, because of the number of patients needing surgery, Dr. Rivero closed by
writing:
This could be easily resolved in the fuutre [sic] if it can be established that
the patient is cleared financially in which case it will not be an issue. In fact I will
require that patients bring me a note from the hospital saying that they are cleared
(just as is required for insured patients) BEFORE I schedule them for surgery.
Please take steps to clarify this with the hospital, that I will need something clear
and unambiguous, because quite frankly it is rather unseemly that I should even
have to discuss this directly with the patient.
Payment Email at 26.117 Finally, in response to the monkey complaint, Dr. Rivero stated that the
complaint is “a gross misrepresentation of the facts by a manipulative patient who is a
demonstrated sociopath, former IV drug abuser,” and suggested that Barela “serve as a mediator”

117

This portion of the email is not mentioned in UNM’s proffered undisputed material
facts, but the email is mentioned. See UNM’s MSJ ¶ 22, at 6. As the evidence is part of the
record and is admissible the Court may consider it. See Fed. R. Civ. P. 56(c)(3). The Payment
Email itself is admissible nonhearsay, as discussed supra note 113, and Dr. Rivero responded to
UNM’s use of the email. See Rivero’s Response ¶ 22, at 5. Dr. Rivero does not dispute that he
wrote this email, only that UNM mischaracterizes it in its MSJ. See Rivero’s Response ¶ 22, at
5.

- 248 -

“[i]nstead of attacking physicians.” Aug. 4 Rivero Email at 25. See UNM’s MSJ ¶ 17, at 5.
Barela responded that it is his job to address patient complaints, but knows there are “two sides
to every story” and is “disappointed that you believe that I am attacking you with these
complaints.” Aug 7. Barela Email at 24. See UNM’s MSJ ¶ 19, at 6. Barela wrote that he
“hope[s] that in the future we can discuss complaints and bring resolution to them without taking
complaints that I address personal. It is certainly not my intention to offend you in any way,
however it is my responsibility to address all complaints.” Aug. 7 Barela Email at 24. 118
Dr. Rivero responded:
Your manner and approach to this, in my opinion is reprehensible and
thoroughly disrespectful of Physicians, and I am amazed that you have no idea
how much I dislike you and your methods, which effectively try to lower our
status to servants who are expected to get on our knees before patients. You may
think you are doing what your job requires, and so be it, but it is WRONG
WRONG and WRONG, and I intend to bring it up with your boss.
As far as your reputation with me, do not count me as someone who thinks
highly of you, on the contrary, right now I think you are one of my least favorite
individuals in this institution.
Sending reckless and disparaging comments to my chairman is not
objective at all. If this institution really wanted to be fair to Physicians, it would
put a Physician advocate between you and me, just as they have put you between
me and the patient, allowing you to beat me over the head. You have no idea how
unpleasant I find your emails.
118

Again, UNM does not quote this portion of the email, but cites to the entire email in
UNM’s MSJ ¶ 19, at 6. As the evidence is part of the record and is admissible the Court may
consider it. See Fed. R. Civ. P. 56(c)(3). Dr. Rivero disputed the fact on hearsay grounds, and
stated it was inconsistent with the exhibit. See Rivero’s Response ¶ 19, at 4. The email is not
offered to prove the truth of the matters asserted therein, but to provide context to Dr. Rivero’s
response. There is no issue with inconsistency here, as the Court is directly quoting the exhibit.

- 249 -

Aug. 7 Rivero Email at 24. See UNM’s MSJ ¶ 20, at 6. Dr. Rivero further asked why he had
four complaints “in the past few months” while he had not heard from a patient advocate in the
past fourteen years. Aug. 7 Rivero Email at 24.119 Dr. Rivero tells Barela that that he is “a
physician antagonist” and that, by providing the complaints to Dr. Rivero’s supervisor, he is
humiliating Dr. Rivero and “clos[ing] all doors to resolution.” Aug. 7 Rivero Email at 24.
These email responses provide sufficient evidence to cause a reasonable person to
question whether Dr. Rivero could handle his temper and interact with his colleagues
professionally. That Dr. Rivero shows little empathy for these patients who felt compelled to
report his behavior, and accuses the patient advocate of promulgating lies, is also telling.
Dr. Rivero’s earlier temper issues also influence the reasonableness of UNM’s decision, because
they show that Dr. Rivero has not learned from this earlier conduct -- he still fails to accept any
responsibility.

For example, in discussing the screaming match he had with a resident,

Dr. Rivero maintains that he “used obscene language in response to their obscene language” and
“that’s the way men talk to each other in a locker room.” Rivero Depo. 143 at 35:12-13, 15-16.
See UNM’s MSJ ¶ 3, at 4. Further, in requesting an increase to 0.75 or higher FTE, Dr. Rivero
writes:

119

This sentence and the next are not contained in UNM’s MSJ. UNM cites to the Aug. 7
Rivero Email in its MSJ, however, and Dr. Rivero responded to its use. See UNM’s MSJ ¶ 20,
at 6; Rivero’s Response ¶ 20, at 4. Dr. Rivero disputes UNM’s fact as inconsistent with the
exhibit, but does not dispute that he wrote the email. See Rivero’s Response ¶ 20, at 4. The
Court is directly quoting the exhibit in both this sentence and the next, so there is no
inconsistency issue. Further, as the evidence is part of the record and is admissible the Court
may consider it. See Fed. R. Civ. P. 56(c)(3).

- 250 -

I would like to reassure you that I have learned my lesson and my goal in
returning is to serve the Department in the area of Adult Reconstruction, devote
greater efforts than before in resident education, and rebuild the practice area up
for the benefit of the Department and the institution. You have my personal
assurance that all my effort will be towards working harmoniously with others.
Request Letter at 28. See UNM’s MSJ ¶ 27, at 7. Dr. Rivero explained that the lesson is that
“[i]t’s important to get along with people,” although he did not believe he “had been having
trouble getting along with people.” Rivero Depo. 143 at 163:9, 11. See id. at 163:5-12; UNM’s
MSJ ¶ 28, at 7. Dr. Rivero admitted, however, that “I did have episodes where I would not take
things lying down, and I came to realize that it wasn’t productive.” 120 Rivero Depo. 143 at
163:16-18. Accordingly, the Court determines that these issues and complaints provided UNM
with reasonable, objective grounds to question Dr. Rivero’s ability to work well with others and
to act professionally in the face of stress. As the Eleventh Circuit found, “an employee’s ability
to handle reasonably necessary stress and work reasonably well with others are essential
functions of any position.” Williams v. Motorola, Inc., 303 F.3d at 1290.
The undisputed evidence therefore points to UNM requiring that Dr. Rivero complete the
psychiatric evaluations to measure his ability to handle stress and act professionally -- job-related
duties. See Williams v. Motorola, Inc., 303 F.3d at 1290. The Addendum itself makes this clear,
for as introduction to the requirements the Addendum states:
Whereas, Rivero also understands and acknowledges that UNM has
expressed good faith concerns about Rivero’s professional conduct as a member
of the UNM medical staff;
120

This statement is not an undisputed fact, but is part of the record so the Court may
consider it. See Fed. R. Civ. P. 56(c)(3).

- 251 -

Whereas, Rivero has expressed a willingness to dedicate himself to
addressing those concerns;
....
Whereas, Rivero is willing to offer the undertakings set forth herein as an
inducement to UNM to accept an increase in his FTE appointment, conditioned
upon those undertakings[.]
Addendum at 1.121 Moreover, in the paragraph following the psychiatric evaluation requirement,
the Addendum provides that, should Dr. Rivero “engage[] in any professionally disruptive
conduct,” he “will be deemed to have resigned his SOM faculty appointment and his
employment with the University.”

Addendum ¶ 3, at 3.

The Addendum then sets forth

“Guidelines for Professionalism in Interpersonal Relationships,” and “Guidelines for
Professionalism in Relationships with the Hospital and Community.” Addendum ¶ 4(B), at 3-4.
Further, Dr. Schenck’s requirement that Dr. Rivero apologize to Barela exemplifies that UNM
believed that Dr. Rivero crossed the line. See Rivero Depo. 143 at 171:10-14. Dr. Rivero writes
that he acknowledges that his responses to Barela “were harsh and impolite, and excessively
critical,” but reiterated that he did nothing wrong, and did not “do anything inappropriate or
unprofessional in regards to the allegations that were made by a few patients.” Apology Letter at

121

This portion of the Addendum is not contained in the motion for summary judgment
briefing, but UNM does cite to the Addendum in UNM’s MSJ ¶ 41, at 9. The Addendum is
central to Dr. Rivero’s claims against UNM, so the Court concludes that it is prudent to examine
the Addendum as a whole, and as the Addendum is part of the record, the Court may do so. See
Fed. R. Civ. P. 56(c)(3). It is undisputed that the Addendum to which the Court looks is the
Addendum Dr. Rivero received. See Rivero’s Response ¶ 30, at 15. Further, the Court provides
the language to show what the Addendum says, not to prove the truth of the statements about
Dr. Rivero therein.

- 252 -

29. All this evidence is substantial, and would cause a reasonable person to question Dr.
Rivero’s ability to act calmly in the face of stress and in a professional manner, an essential
function of his job. See, e.g., Williams v. Motorola, Inc., 303 F.3d at 1290. It is also undisputed
that Dr. Schenck did not want Dr. Rivero to take call when he increased his employment, see
Rivero’s Response ¶ 29, at 15; Schenck Depo. 191 at 108:7-9, which Dr. Schenck stated is an
essential job function in orthopedics,122 see Schenck Depo. 191 at 121:9-10. See Davidson v.
Am. Online, Inc., 337 F.3d at 1191 (stating that in deciding what is an essential job function,
“courts must give consideration to the employer’s judgment as to what functions of a job are
essential”).
Dr. Rivero argues that, because he was working at a 0.05 FTE without issue, “UNM has
no objective basis in requiring Dr. Rivero to submit to the medical psychiatric examination in the
Addendum.” Rivero’s Response at 21 (bolding omitted). Dr. Rivero posits that, if his “lack of
professionalism were truly at issue with his performance of essential job junctions,” then “UNM
cannot justify allowing Dr. Rivero to have worked even those limited days” at 0.05 FTE.
Rivero’s Response at 23. He also argues that “the mere submission of a complaint does not
represent ‘deterioration,’ especially if UNM is unwilling to investigate the attacks on
Dr. Rivero’s character” and, “[c]oupled with the administrative vendetta pursued against
Dr. Rivero by Dr. Pitcher, Dr. Bailey, Dr. Roth, and Dr. Katz, the complaints appear to be mere
pretext for a more insidious endeavor.” Rivero’s Response at 23. Dr. Rivero presents no
122

This statement is part of the record, but not part of the parties’ undisputed material
facts, but as part of the record the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 253 -

evidence of “an administrative vendetta,” but, even assuming UNM had one against Dr. Rivero,
the Court determines that the number of patient complaints UNM received regarding Dr. Rivero
just before his reduction to 0.05 FTE is concerning, especially because he ostensibly had not
received complaints before that flurry and because of his rude responses to the patient advocate
Barela. See Aug. 7 Rivero Email at 24. Working one day a month is very different from
working full-time or 0.75 FTE, with at least fifteen times more opportunity for stressors as it
involves working fifteen times more often. At 0.05 FTE, Dr. Rivero would go to UNM only to
operate -- he would not perform pre-op or post-op -- and could not assume full responsibility for
the care, because he was only there for one day a month. See UNM’s MSJ ¶¶ 24-25, at 6; Rivero
Depo. 143 at 176:15-20. Further, Dr. Schenck stated that Dr. Rivero rarely saw patients at the
clinic and that he did not take call. 123 See Schenck Depo. 191 at 49:15-17; id. at 50:10.
Dr. Rivero thus had much less opportunity to interact with patients, and often the patients on
whom he operated had requested him; this reduced interaction with patients all would change
should he increase his time at UNM. See UNM’s MSJ ¶ 25, at 6; Rivero Depo. 143 at 175:1518.

UNM thus had objective justification for its concern that Dr. Rivero would have

professionalism issues again should he increase to 0.75 FTE or full-time employment.124

123

This statement is part of the record, but not part of the parties’ undisputed material
facts, but as part of the record the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
124

Although the Court does not extensively rely on the older complaints and issues
Dr. Rivero had before 2006 in deciding whether the psychiatric evaluation is job-related and
consistent with business necessity, it does consider Dr. Rivero’s response to them as provided
above. Many of the incidents themselves have not been presented in an admissible form, so the

- 254 -

Further, Dr. Rivero cannot point to any evidence that creates a genuine question of
material fact whether UNM’s reason for the evaluation is pretextual. He argues that “the
Addendum’s psychiatric evaluation requirement is overbroad and invasive of Dr. Rivero’s
innermost privacy,” so much so that UNM must have “regarded Dr. Rivero as disabled -- or
sought to discover a presumed disability.” Rivero’s Response at 24. The act of requesting the
psychiatric evaluations is not sufficient to establish that UNM regarded Dr. Rivero as disabled,
see Lanman v. Johnson Cty., 393 F.3d at 1157 (“Nor does the County’s order that Ms. Lanman
take a fitness for duty exam show that Ms. Lanman was perceived as mentally impaired.”), and
as described more fully in the next Part, there is no evidence in the record showing that UNM
regarded Dr. Rivero as disabled.

Dr. Rivero argues that, because of the Addendum’s

overbreadth, “there exists a genuine issue of material fact as to the nature and scope of the

Court cannot rely on them for the truth of the matter in ruling on UNM’s MSJ. See Gross v.
Burggraf Const. Co., 53 F.3d at 1541. The fact that the complaints were made is admissible,
however, as Dr. Rivero discussed them in his deposition and they point to UNM’s state of mind.
As discussed in the analysis above, the Court focuses on Dr. Rivero’s responses to these older
complaints as he discusses them in his deposition. Dr. Rivero argues these older complaints are
irrelevant and should be excluded, but the Court disagrees. See Complaints MIL at 4.
UNM must show that the psychiatric evaluation requirement is job-related and consistent
with business necessity to overcome Dr. Rivero’s argument that this requirement is illegal. See
42 U.S.C. § 12112(d)(4)(A). The older incidents help paint a more complete picture of what
Dr. Rivero’s professional life was like and why UNM imposed the requirement when it did.
These incidents thus make it more probable that UNM has a true basis for questioning
Dr. Rivero’s ability to act professionally, on which its defense rests, so these older incidents are
relevant. See Fed. R. Evid. 401. Further, these incidents are not likely to provoke the jury’s
emotional response or otherwise tend to adversely affect the jury’s attitude toward a particular
matter, so they are not unfairly prejudicial. See United States v. Rodriguez, 192 F.3d at 951.
The Court will not preclude the admission of these older complaints under rule 403, and denies
the Complaints MIL.

- 255 -

psychiatric examination that in turn gives rise to a question of fact as to whether it is ‘job-related
and consistent with business necessity.’” Rivero’s Response at 25. Dr. Rivero has “precluded
himself from being able to establish a genuine issue of material fact as to whether the exams
were related to his job or were too broad in scope,” however, because he did not submit to the
psychiatric evaluations. Sullivan v. River Valley Sch. Dist., 197 F.3d at 812. Dr. Rivero notes
the reappointment letters which state that he does not have a mental condition that interferes with
the essential functions of his position, but notably does not include in the record a reappointment
letter from 2007, which would have followed his harsh emails to Barela. Dr. Rivero therefore
has not produced evidence which demonstrates that, despite the objective evidence of his
inability to act professionally, the proffered reasons for UNM’s psychiatric evaluation
requirement “is unworthy of belief.” Randle v. City of Aurora, 69 F.3d at 453. Accordingly,
summary judgment for UNM is appropriate on Dr. Rivero’s illegal-medical-inquiry claim.
III.

THERE IS NO EVIDENCE IN THE RECORD THAT UNM CONSTRUCTIVELY
DISCHARGED DR. RIVERO.
Dr. Rivero argues that UNM regarded him as disabled -- as the Addendum’s onerous

requirements exemplify -- and, by withdrawing the Addendum and precluding access to
Dr. Rivero’s credentialing file, constructively discharged him in violation of the Rehabilitation
Act. See Rivero’s Response at 28-34. A prima facie case of constructive discharge under the
Rehabilitation Act requires that: (i) Dr. Rivero has a disability as the Rehabilitation Act defines
that term, see Corley v. Dep’t of Veterans Affairs ex rel. Principi, 218 F. App’x at 739 (citing
Wells v. Shalala, 228 F.3d at 1146); (ii) Dr. Rivero is a qualified individual for the position, see

- 256 -

Wells v. Shalala, 228 F.3d at 1146; (iii) “the employer by its illegal discriminatory acts has made
working conditions so difficult that a reasonable person in [Dr. Rivero’s] position would feel
compelled to resign,” Corley v. Dep’t of Veterans Affairs ex rel. Principi, 218 F. App’x at 739
(internal quotation marks omitted)(quoting Sanchez v. Denver Pub. Sch., 164 F.3d at 534); and
(iv) Dr. Rivero resigned, see Green v. Brennan, 136 S. Ct. at 1777. UNM asks for summary
judgment on this claim, because it argues that “[t]he undisputed material facts of the case
conclusively demonstrate that Plaintiff was not a disabled person, as defined by the ADA,” and,
thus, that he cannot make a prima facie case for constructive discharge. UNM’s MSJ at 21. The
Court examines only elements (i) and (iii) of the prima facie case, as the other two are not in
dispute. Concluding (i) that Dr. Rivero does not have a disability as the Rehabilitation Act
defines that term, and (iii) that UNM did not make Dr. Rivero’s working conditions objectively
intolerable, the Court determines that Dr. Rivero voluntarily resigned and that UNM is entitled
summary judgment on this claim. See Sanchez v. Denver Pub. Sch., 164 F.3d at 534; Yearous v.
Niobrara Cty. Mem’l Hosp., 128 F.3d at 1356.
A.

THERE IS NO EVIDENCE TO ESTABLISH THAT UNM DID NOT
REGARD DR. RIVERO AS DISABLED UNDER THE REHABILITATION
ACT’S STANDARD.

Dr. Rivero does not allege that he has a disability, but, rather, that UNM regarded him as
disabled. See FAC ¶ 50, at 10. To establish this element, Dr. Rivero must show that UNM has
discriminated against him, “because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.

- 257 -

§ 12102(3)(A). UNM need not have “believed that the impairment prevented [Dr. Rivero] from
being able to perform a major life activity.” Adair v. City of Muskogee, 823 F.3d at 1306. The
inquiry is focused on UNM’s subjective belief, and not Dr. Rivero’s. See Justice v. Crown Cork
& Seal Co., 527 F.3d at 1086. This relaxed ADAAA standard applies, because the alleged
discriminatory conduct of which Dr. Rivero complains -- the Addendum’s imposition -- occurred
after the ADAAA’s effective date of January 1, 2009.
Dr. Rivero asserts that the Addendum’s psychiatric evaluation requirement “is an act of
discrimination giving rise to an implication that Dr. Rivero was regarded as disabled.” Rivero’s
Response at 28. Dr. Rivero argues that “[t]he Addendum’s invasiveness, its limitless scope, and
waiver of all legal rights present exactly the type of exam that is not even vaguely permissible,”
so much so that “[a]nyone subjected to it must be presumed to be mentally ill.” Rivero’s
Response at 29. Dr. Rivero stated that the psychiatric evaluation requirement put “no question in
[his] mind” that UNM “felt that [he] had a psychiatric problem.”125 Rivero Depo. 191 at 299:1214. Because Dr. Rivero did not submit to the evaluations, the Court cannot determine their
invasiveness or scope. The Addendum, when read as a whole, is not as invasive or limitless in
scope as Dr. Rivero alleges. As discussed earlier, the Addendum is targeted to addressing
Dr. Rivero’s professionalism issues. See, e.g., Addendum at 1. Further, the Addendum does not
contain a waiver of all legal rights, but rather “grievances, complaints, and appeals, arising from
[UNM’s] conduct prior to the execution of this Addendum and from the terms of this Addendum,
125

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 258 -

or arising from [Dr. Rivero’s] resignation in accordance with the terms of this Addendum.”
Addendum ¶ 7, at 5. Contra Rivero’s Response ¶ 31, at 16. As the Court has determined that the
psychiatric evaluation requirement is job-related and consistent with business necessity, see
supra Section II.B, the Court concludes that the Addendum is not an act of discrimination by
UNM.
Although Dr. Rivero is a well-respected surgeon, he had received some complaints and
sent some harsh emails before reducing his time at UNM. The Eighth Circuit has determined
that “[e]mployers need to be able to ascertain the cause of troubling behavior without exposing
themselves to ADA claims” and so an employer’s request for a mental “evaluation is not
equivalent to treatment of the employee as though []he were substantially impaired.” Cody v.
CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998). The Sixth Circuit has
explained that an “employer’s perception that health problems are adversely affecting an
employee’s job performance is not tantamount to regarding that employee as disabled.” Sullivan
v. River Valley Sch. Dist., 197 F.3d at 810. The Tenth Circuit similarly has held that an
employer’s request that an employee take a fitness-for-duty examination does not establish that
the employer regarded the employee as disabled. See Lanman v. Johnson Cty., 393 F.3d at 1157.
Accordingly, the Court determines that the Addendum’s psychiatric evaluation requirement does
not establish that UNM regarded Dr. Rivero as having a mental disability.126

126

The Court notes that both parties analyze the issue whether Dr. Rivero was considered
disabled under the older, pre-ADAAA standard, which is inapplicable to Dr. Rivero’s claim.

- 259 -

Dr. Rivero asserts that “being disabled or regarded as disabled is not the sole means by
which to assert a discriminatory basis for a constructive discharge claim,” but cites no authority
for this proposition besides saying “[a]s set out above.” Rivero’s Response at 29. Nothing
Dr. Rivero cites to “above” provides that a constructive discharge claim under the Rehabilitation
Act does not require establishing that the plaintiff meets the Act’s definition of disabled.
Rivero’s Response at 29. See id. at 28-29. In fact, Rehabilitation Act precedent makes clear that
Dr. Rivero must establish that he has a disability as the Act defines that term. See, e.g., Corley v.
Dep’t of Veterans Affairs ex rel. Principi, 218 F. App’x at 739 (stating that the plaintiff’s
constructive discharge claim fails because he did not establish that he is disabled); Wells v.
Shalala, 228 F.3d at 1146 (concluding that there can be no constructive discharge claim where
the plaintiff is not a “qualified individual with a disability”).
Dr. Rivero argues that “a person is regarded as having an impairment that substantially
limits the person’s major life activities when other people treat the person as having a
substantially limiting impairment, regardless of whether the individual actually has an
impairment.”

Rivero’s Response at 30 (emphasis in Rivero’s Response)(internal quotation

marks omitted)(quoting Martin v. Kansas, 996 F. Supp. at 1289-90). Dr. Rivero contends that,
through the Addendum, UNM “is seeking to confirm its presupposition” that Dr. Rivero has an
impairment. Rivero’s Response at 30 (citing Dr. Rivero’s additional undisputed material fact
¶ 31, at 15-16). There is no evidence, however, that UNM imposed the Addendum to find a
disability and, as previously discussed, the psychiatric evaluation requirement does not establish

- 260 -

that UNM regarded Dr. Rivero as disabled. Dr. Rivero notes that Dr. Schenck “stated that Dr.
Rivero’s reaction to the stress of being on call was one reason that ‘no call’ was listed as an
element of the December 2010 meeting between the two.” Rivero’s Response at 30 (citing
Dr. Rivero’s additional undisputed material fact ¶ 29, at 15). See Schenck Depo. 191 at 41:8-18;
id. at 78:15-80:7. Dr. Schenck explained that he did not want Dr. Rivero being on call, because
he “wanted [Dr. Rivero] not to become . . . testy when he was on call and have some professional
issue.” Schenck Depo. 191 at 79:13-15. See Rivero’s Response ¶ 29, at 15 (citing this portion
of the record).127 That Dr. Schenck did not want Dr. Rivero on call, however, does not establish
that Dr. Schenck -- and by extension UNM -- treated Dr. Rivero as disabled. Dr. Schenck stated
that being on call is stressful and “makes many orthopedic surgeons testy,” so Dr. Rivero’s
issues with it were not unique. 128 Schenck Depo. 191 at 78:25-79:1. See id. at 41:13-17.
Rather, Dr. Schenck stated that he did not want Dr. Rivero being on call, because “[w]e did not
want to risk him to become unprofessional, and on top of it I didn’t need him for that.” Schenck

127

This quote is not included in Dr. Rivero’s proffered undisputed material fact.
Dr. Rivero’s proffered fact states, in part: “Dr. Rivero was not to be on call if he were to return.
The stated reason for this was that being ‘on call’ created too much stress for Dr. Rivero, which
triggered his ‘lack of professionalism.’” Rivero’s Response ¶ 29, at 15 (first quoting Schenck
Depo. 191 at 79:19; then quoting id. at 79:25-80:1). Here, the Court quotes what Dr. Schenck
said and, as part of the record, may consider it. See Fed. R. Civ. P. 56(c)(3).
128

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 261 -

Depo. 191 at 79:22-24. See Rivero’s Response ¶ 29, at 15 (citing this portion of the record).129
Thus, the restriction was for Dr. Rivero’s benefit, because, to increase Dr. Rivero’s employment,
Dr. Rivero would have to be professional, and Dr. Schenck wanted Dr. Rivero “to be successful
professionally.”130 Schenck Depo. 191 at 78:14. See id. at 78:3-14.
This action shows that UNM knew of Dr. Rivero’s professionalism issues and wanted to
try to prevent them as he increased his time at UNM. As the United States Court of Appeals for
the Seventh Circuit has written, “[d]ecent managers try to help employees cope with declining
health without knowing or caring whether they fit the definition in some federal statute.” Cigan
v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir. 2004). The Court concludes that
Dr. Schenck’s attempt to help Dr. Rivero succeed by suggesting that he not be on call does not
establish that UNM regarded Dr. Rivero as suffering from some impairment which caused his
professionalism issues. Being on call is stressful, and it is not logically sound to suggest that a
jury could conclude that a supervisor who is trying to help his employee succeed and increase in
employment by removing this stressor is doing so because he believes the employee has a
disability. Dr. Rivero has noted no evidence that would lead a reasonable jury to conclude that

129

This quote is not included in Dr. Rivero’s proffered undisputed material fact.
Dr. Rivero’s proffered fact states, in part: “Dr. Rivero was not to be on call if he were to return.
The stated reason for this was that being ‘on call’ created too much stress for Dr. Rivero, which
triggered his ‘lack of professionalism.’” Rivero’s Response ¶ 29, at 15 (first quoting Schenck
Depo. 191 at 79:19; then quoting id. at 79:25-80:1). Here, the Court quotes what Dr. Schenck
said and, as part of the record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
130

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 262 -

UNM regarded him as disabled.

Further, besides the Addendum, Dr. Rivero notes no

discriminatory action that UNM took against him because it allegedly perceived him as disabled.
As discussed, the Addendum requirement is job-related and consistent with business necessity,
so it is not an act of discrimination. Dr. Rivero, therefore, cannot establish that UNM regarded
him as disabled, which precludes his constructive discharge claim. Even if he could establish
that UNM regarded him as disabled, however, his constructive discharge claim would still fail,
because the evidence shows no discriminatory acts by UNM that made his working conditions
objectively intolerable. See Sanchez v. Denver Pub. Sch., 164 F.3d at 534.
B.

THERE IS NO EVIDENCE THAT UNM TOOK ANY ILLEGAL
DISCRIMINATORY ACTIONS AGAINST DR. RIVERO THAT MADE
HIS WORKING CONDITIONS SO INTOLERABLE THAT A
REASONABLE PERSON WOULD FEEL COMPELLED TO RESIGN.

Dr. Rivero substantially rests his constructive discharge claim on his assertion that the
Addendum’s psychiatric evaluation requirement is a “per se discriminatory act.”

Rivero’s

Response at 32. Dr. Rivero notes a few other actions that UNM took which he contends created
intolerable working conditions leading to his constructive discharge. See Rivero Response at 3234. First, Dr. Rivero outlines his dispute with Dr. Pitcher, and asserts that Dr. Pitcher “engage[d]
in a tacit campaign against Dr. Rivero with fellow administrators, communicating openly in a
negative light, potentially as disabled (citing ‘grave’ concerns without basis[)].”

Rivero’s

Response at 33 (citing Dr. Rivero’s additional undisputed material fact ¶ 12, at 11-12). Second,
Dr. Rivero asserts that “Dr. Schenck played a deceitful and manipulative game with Dr. Rivero,
at once purporting to be his friend, facilitating the delay engaged in by other administrators, and

- 263 -

then . . . baiting and switching the agreement to return.”

Rivero’s Response at 33 (citing

Dr. Rivero’s additional undisputed material fact ¶ 25, at 14). This alleged deceit includes
Dr. Schenck’s presentment of the Addendum, which contains a psychiatric examination
requirement rather than the counseling to which Dr. Rivero agreed, and Dr. Schenck’s
withdrawal of the Addendum after Dr. Rivero sought access to his credentialing file. See
Rivero’s Response at 33 (citing Dr. Rivero’s additional undisputed material facts ¶¶ 30-32, at 1516; id. ¶¶ 36-39, at 17-18).

Third, Dr. Rivero contends that “UNM then went into full

obstruction, unlawfully withholding Dr. Rivero’s own documents and impeding Dr. Rivero’s
return.” Rivero’s Response at 33-34 (citing Dr. Rivero’s additional undisputed material facts
¶¶ 40-44, at 18).
Most of these allegations are just that -- bare assertions that lack support in the factual
record. The facts regarding Dr. Rivero’s dispute with Dr. Pitcher establish that they had a
disagreement in 2003 regarding the transfer of a patient over PALS, and Dr. Pitcher sent an
email to Dr. Rivero’s department chair about the incident. See Rivero’s Response ¶ 7, at 10;
Rivero Depo. 191 at 44:11-49:16; Pitcher Depo. at 19:9-21:25; Pitcher Complaint at 12.
Dr. Pitcher recalls that an administrative supervisor came to him concerning an interaction she
had with Dr. Rivero in which he did not want to follow the PALS policy.131 See Pitcher Depo. at

131

This statement and the next statement are not part of the parties’ undisputed material
facts, but as they are part of the record the Court may consider them. See Fed. R. Civ. P.
56(c)(3). Rivero does provide as a fact that he had a disagreement with Dr. Pitcher about PALS
policy, and that Dr. Pitcher informed Dr. Rivero’s supervisor. See Rivero’s Response ¶ 7, at 1011.

- 264 -

19:21-14. See also Rivero’s Response ¶ 7, at 10 (citing this portion of the record). Dr. Pitcher
had a conversation with Dr. Rivero about this incident, felt put off by the conversation, and felt
that it was not collegial, and so he emailed Dr. Rivero’s immediate supervisor his concerns. See
Pitcher Depo. at 21:10-19. See also Rivero’s Response ¶ 7, at 10 (citing this portion of the
record). Dr. Rivero states that he told Dr. Pitcher that he wanted a private conversation, but that
Dr. Pitcher ordered him to follow the policy and was not very nice to him, and that Dr. Pitcher’s
email to his supervisor made “all kinds of allegations that were false based on hearsay and thirdparty information that was clearly false.”132 Rivero Depo. 191 at 48:23-25. See id. at 48:1-25.
See also Rivero’s Response ¶ 7, at 10 (citing this portion of the record). In 2004, the then-Vice
Dean of the School of Medicine released a memorandum on the incident, which caused
Dr. Pitcher to recuse himself from handling any issue involving Dr. Rivero. See Rivero’s
Response ¶ 11, at 11; Trotter Memorandum at 13; Pitcher Depo. at 38:2-17. After the Vice Dean
issued this memorandum, Dr. Pitcher continued to email Dr. Rivero’s and his colleagues about
incidents between them that concerned him. See Rivero’s Response ¶ 12, at 11; May 6 Pitcher
Email at 1; Aug. 10 Pitcher at 3. Dr. Rivero did not know of these emails, however, during his
employment at UNM. See Rivero’s Response ¶ 12, at 11; First Rivero Aff. ¶ 3, at 1.

132

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3). Dr. Rivero proffers as fact that
Dr. Pitcher’s complaint was false and based on hearsay, but this fact was based on inadmissible
hearsay and could not be found as fact. See Rivero’s Response ¶ 8, at 11.

- 265 -

As to Dr. Schenck, the record shows that Dr. Rivero was in constant communication with
Dr. Schenck every quarter about increasing Dr. Rivero’s employment at UNM, with Dr. Schenck
saying that he was working on it.133 See Rivero Depo. 191 at 183:5-20. See also Rivero’s
Response ¶ 25; at 14 (citing this portion of the record). Dr. Schenck stated that, by September,
2007, there was no agreement whether to bring Dr. Rivero back, surmising that this situation was
because Dr. Rivero had hurt some feelings and caused some damage. 134 See Schenck Depo. 191
at 81:14-23.

See also Rivero’s Response ¶ 25; at 14 (citing this portion of the record).

Dr. Schenck asserted that he was trying to bring back Dr. Rivero, but “couldn’t get it
accomplished at the rate he wanted it done.” 135 Schenck Depo. 191 at 84:1-2. See id. at 83:2384:4. See also Rivero’s Response ¶ 25; at 14 (citing this portion of the record). Dr. Rivero
believed that, in August, 2008, Dr. Roth told his colleagues at a meeting that Dr. Rivero would
not be allowed to return full-time, because it would result in lawsuits.136 See Rivero Depo. 191
at 184:19-185:5. See also Rivero’s Response ¶ 25; at 14 (citing this portion of the record).
Then, in September, 2008, Dr. Schenck was in Tulsa and met with Dr. Rivero, to say that there

133

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
134

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
135

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
136

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 266 -

was nothing else he could do, implying Dr. Rivero would not be brought up to 0.75 FTE.137 See
Rivero Depo. 191 at 185:10-22. See also Rivero’s Response ¶ 25; at 14 (citing this portion of
the record). There is no evidence of Dr. Rivero’s assertion that Dr. Schenck or other UNM
administrators “obstructed, delayed, and withheld approval of Dr. Rivero’s increase.” Rivero’s
Response ¶ 25, at 14. Rather, the record shows that Dr. Schenck was advocating for Dr. Rivero’s
return and the issues stemmed from administrators’ concerns with Dr. Rivero himself -- not any
manipulative game that Dr. Schenck was playing.
Further, Dr. Schenck was instrumental in the drive to increase Dr. Rivero’s employment
with UNM and “had a plan in place to get him back,” which included Dr. Rivero not taking call
so he could “have a good success so that [he] didn’t have any professionalism issues, and if there
were ones, [Dr. Schenck] could help him through them.” 138 Schenck Depo. 191 at 51:8-12.
Dr. Schenck explained that, when he was negotiating for Dr. Rivero’s return, he was still taking
call as the department chair -- which is “almost unheard of.” 139 Schenck Depo. 191 at 79:5. See
id. at 79:3-8. Dr. Schenck also met with Dr. Rivero on December 10, 2010, to come to an
agreement as to how to bring Dr. Rivero up to 0.75 FTE at UNM. See Rivero’s Response ¶ 27,
at 14-15; Schenck Depo. 191 at 107:8-22; Rivero Depo. 143 at 206:14-22. The agreement, as a
137

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
138

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
139

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 267 -

handwritten note represents and as the two men remember it, provides that Dr. Rivero would first
increase to 0.25 FTE, would increase by 0.25 every six months to a maximum of 0.75 FTE,
would not take call, would achieve full status as a faculty member in two years, and would attend
four counseling sessions. See Rivero’s Response ¶ 27, at 14-15; Note at 13; Rivero Depo. 143 at
206:14-207:14; Schenck Depo. 191 at 107:8-109:15. Dr. Schenck maintains that a psychiatrist
or a psychologist would conduct the counseling which he envisioned, see Schenck Depo. 191 at
108:11-14, whereas Dr. Rivero stated that they did not discuss who would do the counseling, see
Rivero Depo. 143 at 208:14-18. 140 Nonetheless, at Dr. Strasburger’s suggestion, Dr. Rivero
contacted Dr. Katzman, a licensed psychiatrist, to set up counseling sessions. See UNM’s MSJ
¶¶ 38-39, at 9; Strasburger Email at 32; Counseling Email at 32.
Although the Addendum does not exactly match the agreement that Dr. Rivero and
Dr. Schenck reached, the undisputed facts show that Dr. Schenck did not draft the Addendum,
although he “participated in giving some of the bullet points of how” to structure Dr. Rivero’s
return.141 Schenck Depo. 191 at 113:14-15. See id. at 113:9-16. The Addendum provides that
Dr. Rivero would start at 0.25 FTE and increase by 0.25 every six months to a 0.75 FTE
maximum if he fulfills his obligations under paragraph 2. See Addendum ¶ 5, at 4. Paragraph 2
provides that Dr. Rivero “shall successfully complete a four-part psychiatric evaluation by a

140

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
141

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 268 -

board-certified psychiatrist.” Addendum ¶ 2, at 2. As previously discussed, this evaluation
requirement was imposed to address Dr. Rivero’s professionalism issues, which is why
Dr. Schenck suggested counseling in his oral agreement with Dr. Rivero. See Schenck Depo.
191 at 112:3 (responding that he recommended “[c]ounseling for professionalism” to
Dr. Rivero). 142 Although the term “psychiatric evaluation” 143 sounds more onerous than the
term “counseling,” and in practice is likely more onerous, they were both recommended for the
same purpose -- to address Dr. Rivero’s professionalism issues. This enhanced requirement
cannot be blamed on Dr. Schenck, however, as Dr. Rivero would like to do, because Dr. Schenck
did not, and states he could not, draft the Addendum. See UNM’s Reply ¶ 33, at 12; Schenck
Depo. 191 at 113:16.144

142

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
143

Dr. Rivero requests that UNM stick to the term “psychiatric evaluation” during trial
rather than the term “psychological evaluation” that it uses throughout its briefing.
Psychological MIL at 1. Although the Court’s grant of summary judgment for UNM moots this
request, the Court decides the issue and concludes that, because the Addendum uses the term
“psychiatric evaluation,” Addendum ¶ 2, at 2, UNM must stick to that language in its opening
and during the trial as to not misstate the evidence, and thus mislead and confuse the jury.
UNM’s use of the proper term during trial will not preclude its defense that it did not regard
Dr. Rivero as disabled, as it may still present evidence and make argument as to what it meant by
use of the term “psychiatric evaluation.” The Court, therefore, would grant the Psychological
MIL and preclude UNM from using the improper term “psychological evaluation” outside of its
closing argument. At closing, it can argue and use what is an argumentative phrasing.
144

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 269 -

Dr. Rivero stated that Dr. Schenck’s demeanor changed when he realized that Dr. Rivero
would likely not sign the Addendum.145 See Rivero Depo. 191 at 300:20-23. Dr. Rivero also
stated that Dr. Schenck extended his deadline from March 10, 2011, to sign the Addendum and
to obtain a letter from a psychiatrist agreeing to perform the psychiatric evaluation, see
Addendum ¶ 2(a), at 2, to April 10, 2011, see Rivero Depo. 191 at 245:4-5. See also UNM’s
MSJ ¶ 42, at 10; Extension Email at 1. Dr. Rivero then attempted to look at his credentialing file
and stated that, immediately before he was going to review it with the records custodian Kelley,
Dr. Bailey called her and instructed her not to show Dr. Rivero his file. See Rivero’s Response
¶ 37, at 17; Rivero Depo. 191 at 251:14-252:10. Dr. Bailey then emailed Dr. Schenck, stating
that legal had to first determine if Dr. Rivero could access his file and called him asking if they
really wanted to increase Dr. Rivero’s employment. See Rivero’s Response ¶ 38, at 17; Schenck
Depo. 191 at 142:7-17. Dr. Schenck stated that he was disappointed, because he “had to
withdraw the agreement [he] had worked on for three years, because,” Schenck Depo. 191 at
143:21-23, if Dr. Rivero had then signed the Addendum, “[t]here would have been reason for
him to be let go, and [Dr. Schenck] did not want that to happen,” Schenck Depo. 191 at 143:25144:2.146 Dr. Schenck stated that Dr. Bailey was upset with his interaction with Dr. Rivero and
that he did not think Dr. Rivero would sign the Addendum. See Schenck Depo. 191 at 145:12145

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
146

These statements are not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider them. See Fed. R. Civ. P. 56(c)(3).

- 270 -

20.147 Dr. Schenck also felt that, if Dr. Rivero did sign the Addendum, he would still have
professionalism issues and lose his job, Schenck Depo. 191 at 145:20-25, 148 so Dr. Schenck
withdrew the Addendum on April 5, 2011, see UNM’s MSJ ¶ 44, at 10; Withdrawal Email at 1.
Finally, although UNM unlawfully withheld Dr. Rivero’s credentialing file, resulting in
two years of litigation for him to obtain it, this action did not impede Dr. Rivero’s return,
because Dr. Schenck had already withdrawn the Addendum. See Rivero’s Response ¶ 42, at 18;
Order on Petition ¶ B(5), at 5; Schenck Depo. 191 at 145:25. Dr. Rivero received his full
credentialing file by January, 2014. See Rivero’s Response ¶ 43, at 18; Trotter Aff. at 2; Bailey
Aff. at 1. Dr. Rivero then resigned on May 21, 2014. See UNM’s MSJ ¶ 46, at 10; Resignation
Letter at 1. Viewing all these facts in the light most favorable to Dr. Rivero, there is no evidence
of any discriminatory actions that UNM took against Dr. Rivero because of a perceived
disability, an essential element of his claim.

See Premratananont v. S. Suburban Park &

Recreation Dist., 1998 WL 211543, at *2. There is no evidence of a work environment so
intolerable that a reasonable person in Dr. Rivero’s position would have felt compelled to quit,
another essential element of his claim. See Sanchez v. Denver Pub. Sch., 164 F.3d at 534.
Further, there is no evidence that Dr. Rivero’s work environment was “permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter

147

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
148

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 271 -

the conditions of the victim’s employment and create an abusive working environment.’” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)(citation omitted)(first quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986); and then quoting id. at 67). Although Dr. Rivero may
have felt frustrated by UNM’s failure to increase his employment and its precluding access to his
credentialing file, in determining whether constructive discharge occurred the plaintiff’s
subjective views are irrelevant. See Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d at 1356.
Viewing the totality of the circumstances objectively, no reasonable jury could conclude that
Dr. Rivero was constructively discharged.

Accordingly, the Court also grants summary

judgment for UNM on this claim.149

149

Dr. Rivero argues that the MTD Order also dealt with UNM’s affirmative defense III -that Dr. Rivero’s “claims are barred by the doctrine of laches and waiver.” Answer at 10. The
MTD Order does not discuss laches or waiver. See MTD Order at 1-10. Further, neither party
has specifically briefed the application of the laches and waiver defense to Dr. Rivero’s claims.
UNM argued at the June 26, 2018, hearing that the laches and waiver doctrine applies to the
constructive discharge claim, because Dr. Rivero worked for three years under “supposedly
intolerable working conditions” after UNM withdrew the Addendum. June 26 Tr. at 23-24
(Marcus). See id. at 101:16-24 (Marcus). See also Nat’l R.R. Passenger v. Morgan, 536 U.S.
101, 121-22 (2002)(discussing the availability of the waiver and laches defenses for an employer
where the plaintiff’s unreasonable delay in filing suit prejudiced the employer); Whitfield v.
Anheuser-Busch, Inc., 820 F.2d 243, 244 (8th Cir. 1987)(stating that the “doctrine of laches is a
proper defense in a Title VII action”); Bishopp v. District of Columbia, 788 F.2d 781, 783 n.1
(D.C. Cir. 1986)(considering a laches defense to a constructive discharge claim, but rejecting it
on the merits). The record supports this assertion of delay, although UNM has not stated how
this delay has materially prejudiced it. See Jacobsen v. Deseret Book Co., 287 F.3d at 949
(stating that the laches defense requires that the plaintiff unreasonably delayed in asserting the
claim, and that this delay materially prejudiced the defendant). Motions to strike, however, are
generally disfavored, and the decision to strike rests in the Court’s sound discretion. See Scherer
v. U.S. Dep’t of Educ., 78 F. App’x at 689. As the Court is not convinced on the little record
before the Court that there is no way UNM could prevail on its laches-and-waiver-doctrine
defense, the Court would not strike this defense if Rivero’s MSJ were not mooted.

- 272 -

IV.

DR. RIVERO’S FAC STATES A CLAIM FOR RETALIATION, BUT THERE IS
NO EVIDENCE THAT UNM RETALIATED AGAINST DR. RIVERO.
Dr. Rivero alleges that, because UNM does not address his retaliation claim in its MSJ,

the retaliation claim is preserved for trial. See Rivero’s Response at 35. UNM responds that
Magistrate Judge Lynch did not find a cause of action for retaliation in his MTD Order and that it
reasonably relied on his determination. See UNM’s Reply at 28. UNM further argues that, even
if Dr. Rivero’s FAC states a claim for retaliation, “the undisputed material facts of the case
demonstrate that UNM is entitled to summary judgment on that claim.” UNM’s Reply at 28.
The Court concludes first that Dr. Rivero’s FAC states a claim for retaliation, and second that
UNM is entitled to summary judgment on this claim.
A.

DR. RIVERO HAS ALLEGED FACTS IN HIS FAC SUFFICIENT TO
STATE A CLAIM OF RETALIATION UNDER THE REHABILITATION
ACT.

In deciding whether Dr. Rivero has stated a claim for retaliation, the Court looks at the
allegations within the FAC’s four corners, taking those allegations as true.

Mobley v.

McCormick, 40 F.3d at 340. The FAC refers to and attaches the Addendum, the authenticity of
which is undisputed, so in deciding this issue the Court may consider the Addendum, because it
is central to Dr. Rivero’s claims. See Armstrong v. N.M. Disability Det. Servs., 278 F. Supp. 3d
at 1201 n.3. In deciding whether the FAC states a claim for retaliation, the Court must “accept
as true all well-pleaded factual allegations in [the FAC] and view these allegations in the light
most favorable to [Dr. Rivero].” Smith v. United States, 561 F.3d at 1098. Mere “labels and
conclusions” are insufficient; the “[f]actual allegations must be enough to raise a right to relief

- 273 -

above the speculative level.” Bell Atl. Corp v. Twombly, 550 U.S. at 555. To establish a prima
facie case of retaliation, a plaintiff must demonstrate that he or she: (i) engaged in protected
activity; (ii) suffered a materially adverse employment action; and (iii) a causal connection exists
between the protected activity and the materially adverse action. See Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1202.
With these principles in mind, the Court determines that Dr. Rivero has alleged sufficient
facts in his FAC to state a claim of retaliation under the Rehabilitation Act. Dr. Rivero alleges
that UNM violated the Rehabilitation Act by requiring that he undergo psychiatric evaluations in
exchange for an increase in his hours. See FAC ¶ 48, at 9. Dr. Rivero alleges that these
evaluations could not be job-related or consistent with business necessity, because he remained
at

0.05

FTE

performing

“complex

adult

reconstructive

surgeries”

and

receiving

“recommendations for reappointment to the surgical staff” until he left UNM in 2014. FAC ¶ 49,
at 10. Dr. Rivero alleges that UNM “regarded Dr. Rivero as a person with a disability, namely
an unspecified mental impairment, that he in fact did not have, and refused to permit Dr. Rivero
to work more hours than 0.05 FTE.” FAC ¶ 50, at 10. Dr. Rivero states that the “Defendant’s
only articulated reason for the adverse treatment was the unspecified mental impairment.” FAC
¶ 51, at 10. Dr. Rivero alleges that he “objected to the illegal medical inquiry” in April, 2011,
and then UNM “acted on its belief that Dr. Rivero had a mental disability which prevented him
from working more than .05 FTE by revoking the offer to increase his FTE entirely.” FAC ¶ 52,
at 10. The FAC does not provide how Dr. Rivero objected to the evaluation requirement,

- 274 -

although Dr. Rivero states that, in April, 2011, he “sought advice of counsel and legally
requested access to his own personnel files to determine the basis for” the evaluation
requirement. FAC ¶ 40, at 8. Finally, Dr. Rivero alleges that UNM’s “decision to revoke the
offer of more hours was also motivated by retaliation because Dr. Rivero objected to the illegal
medical inquiry,” FAC ¶ 53, at 10, and that “[n]o legitimate business reason was ever offered for
the adverse action,” FAC ¶ 54, at 10.
Dr. Rivero has sufficiently pled that he suffered an adverse employment action -- the
revocation of the Addendum that would have increased his hours, essentially a “fail[ure] to
promote.” Meiners v. Univ. of Kan., 359 F.3d at 1230. Dr. Rivero does not explicitly state in
what protected activity he engaged for his retaliation claim.

Although sparse, there are

allegations that Dr. Rivero believed in good faith that UNM violated the Rehabilitation Act by
requiring he undergo psychiatric evaluations before he could be promoted and that he somehow
objected to these evaluations. See FAC ¶¶ 48-49, 52, at 9-10. This allegation plausibly shows
that Dr. Rivero engaged in protected activity by opposing an act made unlawful by the
Rehabilitation Act. See Umholtz v. Kan. Dep’t of Soc. & Rehab. Servs., 926 F. Supp. 2d 1222,
1235 (D. Kan. 2013)(Rogers, J.)(stating that the Rehabilitation Act incorporates the ADA’s antiretaliation provisions, which “state that: ‘No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter . . . .’”
(quoting 42 U.S.C. § 12203(a))). Further, Dr. Rivero alleges that he suffered the adverse action
-- the withdrawal of the Addendum -- the same month he objected to the evaluations. See FAC

- 275 -

¶ 52, at 10. This close temporal proximity allows an inference of a causal connection between
the protected activity and the adverse action. See Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d at 1202. Accordingly, Dr. Rivero’s FAC states a claim for retaliation.
B.

THE STATUTE OF LIMITATIONS BARS THE RETALIATION CLAIM.

Dr. Rivero’s retaliation claim accrued, commencing the start of the limitations period,
upon the retaliatory adverse employment action: when Dr. Schenck withdrew the Addendum in
April, 2011. See Graham Cty. Soil & Water Conservation Dist. v. United States ex rel Wilson,
545 U.S. at 419 (stating that, “in retaliation actions,” the statute of limitations starts to run “when
the retaliatory action occurs”). As previously stated, the statute of limitations for Rehabilitation
Act claims in the State of New Mexico is three years. See N.M. Stat. Ann. § 37-1-8 (three-year
statute of limitations for personal injury actions); Baker v. Bd. of Regents of the State of Kan.,
991 F.2d at 632 (providing that the applicable state’s statute of limitations for personal injury
actions apply to Rehabilitation Act claims). Dr. Rivero did not file his Complaint until April,
2016, five years after Dr. Schenck withdrew the Addendum. See Complaint at 1. Accordingly,
the three-year statute of limitations has run, barring Dr. Rivero’s retaliation claim. There is no
sound reason to apply the doctrine of equitable tolling to this claim, as Dr. Rivero had sufficient
knowledge of his alleged injury within the limitations period to bring a timely retaliation case.
Although Dr. Rivero is correct in stating that UNM did not address this claim in its MSJ, see
Rivero’s Response at 35, he pointed out that he had this retaliation claim in his response, and
UNM addresses the claim in its Reply and asks that the Court grant summary judgment on it, see

- 276 -

UNM’s Reply at 27-28. UNM asserts that, “even assuming, ad arguendo, that Plaintiff stated a
claim for retaliation in his Amended Complaint, the undisputed material facts of the case
demonstrate that UNM is entitled to summary judgment as to the claim.” UNM’s Reply at 28.
This statement is a clear request for a grant of summary judgment, and the Court concludes that,
because the statute of limitations bars the retaliation claim, UNM is thus entitled to summary
judgment on this claim.150
C.

THE RECORD CONTAINS NO EVIDENCE THAT DR. RIVERO
ENGAGED IN PROTECTED ACTIVITY OR THAT UNM HAD A
RETALIATORY MOTIVE IN WITHDRAWING THE ADDENDUM.

UNM contends that, even if the statute of limitations does not bar the retaliation claim,
Dr. Rivero cannot make a prima facie case of retaliation, because he did not engage in a
protected activity and because UNM did not have a retaliatory motive in withdrawing the
Addendum. See UNM’s Reply at 28. Dr. Rivero did not respond to this argument and thus note

150

Dr. Rivero has not responded to UNM’s argument why it is entitled to summary
judgment on his retaliation claim. He did not request leave of the Court allow him to file a
surreply to respond, which the Court would have granted. Further, the Court held a hearing on
this matter on June 26, 2018, and all that Dr. Rivero said in favor of his retaliation claim is:
“[T]here is a retaliation claim hanging out there that was not briefed, that I think still exists.”
June 26 Tr. at 107:6-8 (Norvell). At this hearing, UNM reiterated its argument that the
retaliation claim is time-barred, but did not address the claim’s merits. See June 26 Tr. at 108:27 (Marcus). Dr. Rivero did not respond to UNM’s statute-of-limitations argument at the June 26
hearing, as he could have, stating only that whether there is a retaliation claim is “in dispute,”
“pending determination by the Court, pursuant to these motions.” June 26 Tr. at 108:11, 18-19
(Norvell). Dr. Rivero also did not address the merits of his retaliation claim at the June 26
hearing. That Dr. Rivero has not taken advantage of his opportunities to argue against UNM’s
assertion that it is entitled to summary judgment on his retaliation claim does not mean the issue
is not ripe for a decision. The Court accordingly considers UNM’s arguments that it is entitled
summary judgment on this claim and concludes they are sound.

- 277 -

facts that he contends establish his prima facie case.151 This lack of Dr. Rivero’s facts makes the
Court’s job more difficult. The Court has searched the record for an action that Dr. Rivero took
which could be construed as a protected activity to form a basis for his retaliation claim.
Although filing an EEOC claim is clearly a protected activity, see Proctor v. United Parcel Serv.,
502 F.3d at 1208, and here Dr. Rivero filed two, they were filed in 2012 and 2014, see UNM’s
MSJ ¶ 45, at 10; Rivero’s Response ¶ 45, at 7; EEOC Charge of Discrimination Charge No. 5432012-00600 at 1; EEOC Charge of Discrimination at 1-2 (dated November 4, 2014), filed March
8, 2018 (Doc. 191-11), which is after the allegedly retaliatory withdrawal of the Addendum
occurred in 2011, see UNM’s MSJ ¶ 44, at 10; Withdrawal Email at 1. Dr. Rivero’s FAC states
that he objected to the Addendum’s psychiatric evaluation requirement, but does not provide
how. See FAC ¶ 52, at 10. As the Tenth Circuit has stated, “to qualify as protected opposition[,]
the employee must convey to the employer his or her concern that the employer has engaged in a
practice made unlawful by the” Rehabilitation Act. Hinds v. Sprint/United Mgmt. Co., 523 F.3d
1187, 1203 (10th Cir. 2008).152

151

As Dr. Rivero does not present direct evidence of discrimination, relying only on
circumstantial evidence, the Court applies the McDonnell Douglas burden shifting framework.
See Reynolds v. Sch. Dist. No. 1, Denver, 69 F.3d 1523, 1533 (10th Cir. 1995). “Under the
McDonnell Douglas scheme, in order to survive summary judgment on a circumstantial case, the
plaintiff must first establish a prima facie case of discrimination.” Reynolds v. Sch. Dist. No. 1,
Denver, 69 F.3d at 1533.
152

Hinds v. Sprint/United Mgmt. Co. deals with a retaliation claim under the ADEA, but
cites for this proposition Anderson v. Academy Sch. Dist. 20, 122 F. App’x 912, 916 (10th Cir.
2004)(unpublished), which is a Title VII case. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d
at 1203 n.13 (citing Anderson v. Academy Sch. Dist. 20, 122 F. App’x at 916). Accordingly, the

- 278 -

In the Extension Email, Dr. Rivero requests that Dr. Schenck “extend the [Addendum’s]
dates of March 10 and April 1 by a month,” so that he may have the time to “review the
addendum with an attorney as recommended to [him] in the document” and “arrange for an
appropriate individual for the counseling that [he] agreed to.” Extension Email at 1. See UNM’s
MSJ ¶ 42, at 10. Dr. Rivero writes that he is “concerned about some aspects of the [A]ddendum
that are different from what [he] agreed to in [his] discussion” with Dr. Schenck. Extension
Email at 1. He states:
My two major concerns about the addendum are that it stipulates that the
addendum is to be in effect indefinitely at the discretion of the SOM, but in our
conversation, I agreed to two years at your request. The second issue is that I
agreed to counseling, but I find the language in the document rather harsh in that
regard.
Extension Email at 1.153 This email is not a protected action, because it does not mention any
discriminatory treatment by UNM based on a disability it believed Dr. Rivero to have or that
Dr. Rivero believed that the psychiatric evaluation requirement is illegal. Dr. Rivero does not
convey any concern in the Extension Email that he believed UNM has violated the Rehabilitation
Act, or any other statute, and contains mere “[g]eneral complaints” about the Addendum’s
Court concludes that this logic is applicable in the Rehabilitation Act context as well, because of
Title VII precedent’s applicability to the ADA and, thus, the Rehabilitation Act. See 29 U.S.C.
§ 794(d) (incorporating the ADA’s anti-retaliation standards into claims of employment
discrimination brought under the Rehabilitation Act’s § 794); Proctor v. United Parcel Serv., 502
F.3d at 1208 n.4 (stating that Title VII retaliation precedent applies in the ADA context).
153

UNM’s proffered undisputed material facts do not discuss this portion of the Extension
Email, but UNM cites to the Email and Dr. Rivero responds. See UNM’s MSJ ¶ 42, at 10;
Rivero’s Response ¶ 42, at 7. Dr. Rivero does not dispute that he wrote the email, only how
UNM characterizes it. See Rivero’s Response ¶ 42, at 7. Further, as this evidence is part of the
record the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 279 -

requirements. Hinds v. Sprint/United Mgmt. Co., 523 F.3d at 1203 (“General complaints about
company management . . . will not suffice.”).
The Court could find no other emails in the record from Dr. Rivero that raised any
concerns with the Addendum. On April 3, 2011, Dr. Rivero sent an email to “reiterate [his]
continuing interest in seeing the content of” his credentialing file, “which has been referenced in
the Addendum that [he has] been presented and would like to sign, so that [he] can return to
UNM at a meaningful level of participation.” Email from Dr. Dennis Rivero to Dr. Robert
Bailey at 4 (dated April 3, 2011), filed March 8, 2018 (Doc. 191-5)(“Credentialing Email”). 154
Dr. Rivero also states that, “as suggested in the Addendum, [he] need[s] to get legal advice
before [he] can sign the document with appropriate guidance.” Credentialing Email at 4. He
mentions that he would also like to see the file resulting from the OCR Letter, and review it with
his attorney so that he can receive the attorney’s “guidance regarding what significance it may
have to the content of the Addendum that alludes to unprofessional conduct on [Dr. Rivero’s]
part, something that [he] has always denied.” Credentialing Email at 4. Again, Dr. Rivero
communicates no concerns in this email that UNM violated the Rehabilitation Act with the
Addendum, and thus this email is also not a protected action. See Hinds v. Sprint/United Mgmt.
Co., 523 F.3d at 1203.

154

This email is part of the record, so the Court may consider it, but is not quoted in the
parties’ undisputed facts. See Fed. R. Civ. P. 56(c)(3). Dr. Rivero cites to this email in one of
his proffered undisputed material facts. See Rivero’s Response ¶ 40, at 18.

- 280 -

Dr. Rivero states that he sought access to his credentialing file in March, 2011, to find
grounds for the psychiatric evaluation requirement. See, e.g., Rivero’s Response ¶ 36, at 17;
Rivero Depo. 191 at 271:12-13 (“I wanted to get to the bottom of the addendum.”). Dr. Schenck
stated that he did not know why Dr. Rivero wanted his files at that time, and thus did not know
that Dr. Rivero sought them to find grounds for the required psychiatric evaluations.155 See
Schenck Depo. 191 at 144:11-21; id. at 145:2-8.

Accordingly, there is no evidence that

Dr. Rivero’s attempt to view his credentialing file in any way conveyed to UNM his concern that
UNM violated the Rehabilitation Act, so this action is also not protected.

See Hinds v.

Sprint/United Mgmt. Co., 523 F.3d at 1203. Dr. Schenck also stated that there was nothing
wrong with Dr. Rivero’s seeking access to his file and that his request did not form grounds to
dismiss him. See Rivero’s Response ¶ 39, at 17; Schenck Depo. 191 at 146:1-11. Further, even
if a reasonable factfinder could conclude that Dr. Rivero’s attempt to view his credentialing file
is a protected activity, Dr. Schenck, who withdrew the Addendum, did not know that Dr. Rivero
sought to view his file in opposition to an action illegal under the Rehabilitation Act, so
Dr. Rivero cannot show a causal connection between the two events.156 See Montes v. Vail

155

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
156

There is no evidence in the record before the Court, and Dr. Rivero does not allege,
that Dr. Schenck withdrew the Addendum at anybody’s urging, so there is no cat’s paw issue.
Even though Dr. Bailey’s call to Dr. Schenck in which he asked, “Do we really want to do this?”
influenced Dr. Schenck’s decision to withdraw the Addendum, Schenck Depo. 191 at 143:16-17,
see id. at 143:19-144:7, there is no evidence that Dr. Bailey was biased against Dr. Rivero as
needed for the cat’s paw doctrine to apply, see Young v. Dillon Cos., 468 F.3d at 1253 (“In order

- 281 -

Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)(stating that, to establish the causal nexus, “a
‘plaintiff must show that the individual who took adverse action against [her] knew of the
employee’s protected activity’” or that a person “harboring discriminatory animus, knew and
used . . . the person who effected the adverse action, ‘as a cat’s paw to effect . . . her own biased
designs’” (alteration in Montes v. Vail Clinic, Inc.)(first quoting Williams v. Rice, 983 F.2d 177,
181 (10th Cir. 1993); and then quoting Young v. Dillon Cos., 468 F.3d 1243, 1253 (10th Cir.
2006))).
From the Court’s review of the record before it, it does not appear that Dr. Rivero
communicated his belief that UNM violated the Rehabilitation Act through the Addendum’s
requirements until after Dr. Schenck revoked the Addendum. Dr. Rivero stated that he sought
his credentialing file “to get to the bottom of the [A]ddendum,” but that it “took three years to
get the mandamus thing resolved where [he] was finally allowed to see [his] file.”157 Rivero
Depo. 191 at 271:12-15. See Rivero’s Response ¶ 42, at 18 (stating that it took “two years of
litigation” for a court to order production of Dr. Rivero’s file). Dr. Rivero also stated that,
“[d]uring that time, [h]e did not communicate [his] problems with . . . [his] colleagues” and just

to succeed under such a theory, however, a plaintiff must show that the allegedly biased
investigator’s discriminatory reports, recommendation, or other actions were the proximate cause
of the adverse employment action.”).
157

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 282 -

told them that he was working with UNM to return.158 Rivero Depo. 191 at 271:16-18. The first
mention of discrimination to UNM the Court found in the record is in June, 2011, when
Dr. Rivero emailed Dr. Bailey to complain about how he still has not been allowed access to his
credentialing file and states:
It is very disappointing to me that even though initially it was clear that I would
be allowed to see my file, at your last minute direction I was denied access to my
file. I do not understand why I am being discriminated against, when it was clear
from the actions of the staff in your office that faculty members are allowed to see
their own file.
Email from Dr. Dennis Rivero to Dr. Robert Bailey at 9 (dated June 21, 2011), filed March 8,
2018 (Doc. 19 -5). 159

This “vague reference to discrimination,” however, “without any

indication that this misconduct was motivated by [disability] . . . does not constitute protected
activity and will not support a retaliation claim.” Anderson v. Academy Sch. Dist. 20, 122
F. App’x at 916. The clear protected activities -- the filing of his EEOC complaints -- did not
take place until years after Dr. Schenck revoked the Addendum and, thus, cannot provide a basis
for the retaliation claim. Accordingly, the Court concludes that Dr. Rivero did not engage in a
protected activity and thus has not established a prima facie case of retaliation.
Even if there is a protected activity that the Court is missing, UNM is still entitled to
summary judgment on the merits of this claim, because Dr. Schenck did not withdraw the

158

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).
159

This email is part of the record, so the Court may consider it, but is not quoted in the
parties’ undisputed facts. See Fed. R. Civ. P. 56(c)(3). Dr. Rivero cites to this email in one of
his proffered undisputed material facts. See Rivero’s Response ¶ 40, at 18.

- 283 -

Addendum in retaliation of such action. Preliminarily, the Addendum’s revocation is an adverse
employment action because it is, in effect, a failure to promote. See Meiners v. Univ. of Kan.,
359 F.3d at 1230.

The Addendum, as discussed in Section II.B., addresses Dr. Rivero’s

professionalism problems. Dr. Rivero adamantly denies any professionalism issues. See, e.g.,
Rivero’s Response ¶ 7, at 10; Resignation Letter at 1 (“Your testimony in court under oath was a
profound disappointment, upholding a letter that you prepared, falsely accusing me of
professional wrongdoing and unprofessional behavior, without supporting evidence. I have
never engaged in unprofessional behavior as defined by law, as you admitted under oath.”);
Credentialing Email at 4 (“[T]he Addendum . . . alludes to unprofessional conduct on my part,
something that I have always denied.”). Dr. Rivero’s lack of acknowledgment of his issues
implies that the Addendum would be pointless, as UNM asserts. See UNM’s Reply at 28.
Further, Dr. Schenck states that he withdrew the Addendum, because of Dr. Rivero’s adversarial
interaction with Dr. Bailey over the credentialing file issue and because, if Dr. Rivero signed it,
Dr. Schenck believed he would continue to have professionalism issues and would be fired.160
See Schenck Depo. 191 at 145:12-25.
Dr. Schenck’s concerns provide a legitimate, non-retaliatory reason for pulling the
Addendum, so under the McDonnell Douglas framework, Dr. Rivero would have to establish a
genuine question of material fact whether this reason is pretext. See Pushkin v. Regents of Univ.

160

This statement is not part of the parties’ undisputed material facts but, as part of the
record, the Court may consider it. See Fed. R. Civ. P. 56(c)(3).

- 284 -

of Colo., 658 F.2d at 1387. To establish such a question, Dr. Rivero must demonstrate that
UNM’s “preferred non-discriminatory reason is unworthy of belief.” Randle v. City of Aurora,
69 F.3d at 453. The record before the Court contains no “evidence upon which a factfinder
could conclude that the defendant’s allegedly nondiscriminatory reasons for the employment
decisions are pretextual.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1134.
With no prima facie case of retaliation, and a legitimate, non-retaliatory reason for withdrawing
the Addendum, summary judgment for UNM on the retaliation claim is appropriate.161
V.

THE COURT’S TIES WITH THE SCHOOL OF LAW AND MEMBERS OF THE
BOARD OF REGENTS DO NOT MANDATE RECUSAL, SO RECUSAL IS
INAPPROPRIATE.
Dr. Rivero contends that the Court should recuse itself from this matter, asserting that

that the Court’s “relationship with the University of New Mexico and its Regents give rise to an
objectively reasonable question of impartiality.” Recusal Motion at 3. Dr. Rivero moves for
recusal under 28 U.S.C. § 455(a) and § 455(b)(4). See Recusal Motion at 7. Section 455(a)
mandates a judge’s recusal “in any proceeding in which his impartiality might reasonably be
questioned,” 28 U.S.C. § 455(a), while § 455(b)(4) mandates recusal where the judge “has a

161

With its grant of summary judgment for UNM on all of Dr. Rivero’s claims, the Court
concludes that striking affirmative defense XIV, “Defendant UNM fulfilled any and all
obligations it had to Plaintiff under contract or statute” is improper. Answer at 10. In granting
summary judgment for UNM, the Court determines that UNM did not violate the Rehabilitation
Act as Dr. Rivero alleges. The Court is not convinced that Dr. Rivero can disprove this defense,
i.e., that he can show UNM violated statutory or contractual obligations. This defense is clearly
relevant to the controversy, and the Court would therefore not strike it if Rivero’s MSJ were not
mooted by the grant of summary judgment. Estate of Gonzales v. AAA Life Ins., 2012 WL
1684599, at *5.

- 285 -

financial interest in the subject matter in controversy or in a party in the proceeding, or any other
interest that could be substantially affected by the outcome of the proceeding,” 28 U.S.C.
§ 455(b)(4). Dr. Rivero does not contend that any other grounds for recusal apply in this case.
See Recusal Motion at 7-10. The Court concludes that no grounds for recusal are present in this
case -- specifically, that there is no objectively reasonable question of the Court’s impartiality
and that the Court does not have an interest that could be substantially affected by the outcome
of the case -- and therefore denies the Recusal Motion.
A.

THE COURT’S TIES WITH THE SCHOOL OF LAW AND MEMBERS
OF THE BOARD OF REGENTS DO NOT GIVE RISE TO AN
OBJECTIVELY REASONABLE QUESTION OF THE COURT’S
IMPARTIALITY.

Federal law mandates a judge’s recusal from any “proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). The Tenth Circuit has held that “[a]n
unsubstantiated suggestion of personal bias or prejudice is insufficient to mandate recusal under
section 455(a)”; rather, there must be facts “that would ‘cause a reasonable man to doubt the
judge’s impartiality.’” Willner v. Univ. of Kan., 848 F.2d at 1027 (quoting United States v.
Hines, 696 F.2d 722, 729 (10th Cir. 1982)). Adverse rulings do not per se create an appearance
of impropriety. See In re Int’l. Bus. Machs. Corp., 618 F.2d 923, 929 (2d Cir. 1980). “The test
is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the
judge’s impartiality.” Hinman v. Rogers, 831 F.2d at 939 (citing United States v. Hines, 696
F.2d at 728). “A judge should not recuse himself on unsupported, irrational, or highly tenuous
speculation.” Hinman v. Rogers, 831 F.2d at 939. Further, “a judge has as strong a duty to sit

- 286 -

when there is no legitimate reason to recuse as he does to recuse when the law and facts require.”
Nichols v. Alley, 71 F.3d at 351.
In Willner v. University of Kansas, the plaintiff requested recusal based on the judge’s
position as the director of the University of Kansas Alumni Association. See 848 F.2d at 1026,
1028. The plaintiff did not present, however, any facts showing that the judge “was actually
biased against her as the result of his leadership position.” 848 F.2d at 1028. The Tenth Circuit
concluded that “[t]he law of this circuit does not require recusal on the basis of mere speculation
that such activities would cause him to harbor prejudice against her.” 848 F.2d at 1028 (citing
Hinman v. Rogers, 831 F.2d at 939-40).
In Lunde v. Helms, the Eighth Circuit determined that the trial judge did not abuse its
discretion in not recusing, concluding that “the district judge’s having graduated from the
university law school, even though the university is a party defendant, without more, is [not] a
reasonable basis for questioning the judge’s impartiality.” 29 F.3d at 370. The plaintiff also
moved for recusal based on the judge’s making financial contributions to the law school’s
foundation and the judge’s having presented two educational programs at the university. See 29
F.3d at 370. The Eighth Circuit concluded that these contributions or presentations, “without
more, is [not] a reasonable basis for questioning the judge’s impartiality.” 29 F.3d at 371.
In Wu v. Thomas, 996 F.2d 271 (11th Cir. 1993), the Eleventh Circuit considered
whether a federal district judge should recuse from a case involving a university for which he
serves as an adjunct professor and to which he had made financial contributions. See 996 F.2d at

- 287 -

275. The judge noted that he did not receive a salary from the university, “that his duties are
limited to letting law students intern in federal court and judicial chambers for one semester,”
and that he had not made a financial contribution to the university “for many years.” 996 F.2d at
275. The Eleventh Circuit agreed with the district judge, finding that, “[o]n these facts (which
are uncontested), no reasonable observer would assume that [the district judge] had extra-judicial
knowledge of this case or otherwise question [the judge’s] impartiality,” so none of these
connections with the university disqualified the judge “under section 455(a).” 996 F.2d at 275.
In United States ex rel. Hochman v. Nackman, 145 F.3d 1069 (9th Cir. 1998), the United
States Court of Appeals for the Ninth Circuit considered whether a district judge should recuse
from a case involving a university, where the judge made “a small yearly contribution to the law
school’s alumni association.” 145 F.3d at 1076. The Ninth Circuit noted that the university is
not a named party, and that the relationship between the law school and the case “is virtually
nonexistent.” 145 F.3d at 1076. The Ninth Circuit determined that the judge’s “insignificant
contact” with the university thus “would not reasonably lead one to question his impartiality.”
145 F.3d at 1076.
Here, the Court’s connections with UNM are insubstantial and weak, and do not support
a reasonable finding of prejudice.

First, the Court has no connection with the School of

Medicine or the Health Sciences Center, where Dr. Rivero and his supervisors worked. The
Court does not know any of people with whom Dr. Rivero has issue. The Court has taught a
one-semester class at the School of Law on five occasions with Andy Shultz. The Court has not

- 288 -

taught this class since the fall of 2017, is unlikely to teach it in the foreseeable future, and is not
teaching it next fall.162 The Court refused payment163 for the first three classes it taught and, for
the last two classes, the Court received a research assistant -- one in the fall of 2015 and another
in the fall of 2017 -- to help in writing a law review article.164 One of these research assistants
has accepted an offer to serve as a law clerk for the Court from 2019-2020. This is not the first
UNM law student the Court has hired as a law clerk, and likely will not be the last, because
UNM has the only law school in the state. The Court thus also often has externs from the School
of Law, at least during the school year, because they are the only students available to extern
while school is in session. Providing externship opportunities for and hiring law clerks from the

162

The Court currently has an MDL, and Mr. Schultz is local counsel for the defendant. It
thus is unlikely that the Court will be teaching in the future at UNM School of Law.
163

The Court has never received any payment from UNM, so it is uncertain of the amount
involved. The Court remembers being offered around $857.00 one year for the semester course.
The Court uses an accountant to help with its financial disclosure forms. The Court never
reported any amounts of income for the three times it waived payment. For the first year it got a
research assistant, the Court was told to report the arrangement on its financial disclosure forms
and reported that $644.00 would have been paid, but was paid to someone else. This amount
was not reported as income, because someone else received the payment. For the next time, it
was told that it was not necessary to report, and the Court did not report. The Court’s accountant
has advised that there are no amounts needed to be reported to the IRS, and none has been
reported. The Court has not received any tax documents, like a W-2, from UNM and thus no tax
has been paid. So UNM never employed and compensated the Court and thus the Court has not
been a compensated UNM employee.
164

Because of the crush of cases in this district, and because the Court is particularly
short-handed right now, it is unlikely the Court will be able to finish the article. Of course, the
Court would not use a law clerk to work on a law review article while the law clerk is working
for the Court.

- 289 -

nearby law school is not a unique practice, and does not show bias for the school. E.g., Wu v.
Thomas, 996 F.2d at 275 (allowing law students intern to with court is not grounds for recusal
from case involving the university).
The Court’s ties with the Board of Regents are even more weak. The Court has been
acquainted with many previous and current members of the Board. These acquaintances include
the current President, Robert M. Doughty III, who attended a dinner party at the Court’s home
years ago.165 The Court knows Mr. Doughty because he is an attorney, and does not have a
substantially different relationship with Mr. Doughty than he does with other members of the
bar. As the Court sits in a relatively small city and state, it knows many attorneys. The Student
Regent on the Board for 2017-2018, Mr. Adcock, externed for the Court in the summer of 2017,

165

The Court is relatively certain that Mr. Doughty was not a member of the Board at the
time of Dr. Rivero’s alleged discrimination. Mr. Doughty became a Board member in
December, 2014. See Regents Doughty, Lee Re-Elected to UNM Board of Regents’ Positions,
UNM Newsroom (March 13, 2017), https://news.unm.edu/news/regents-doughty-lee-re-electedto-unm-board-of-regents-positions. At the time of the alleged discrimination, from 2011 until
2015, Mr. Doughty served as the chairman of the New Mexico Racing Commission. See Robert
M. Doughty III, Doughty Alcatraz, P.A., https://www.doughtyalcaraz.com/About/Robert-MDoughty-Iii.shtml (last visited Feb. 25, 2019). The Court has been unable to determine when the
dinner occurred, but it thinks it was before Mr. Doughty was on the Racing Commission,
because it had a case shortly after the dinner involving the Racing Commission and it did a
disclosure letter about Mr. Doughty. The Court recalls that it had some invitees say that they
could not come to the dinner, and one or more invitees suggested inviting Mr. Doughty. The
Court and Mr. Doughty did not have a significant or long-standing relationship with each other,
but it was more fortuitous that Mr. Doughty and his wife were invited and were there.

- 290 -

before the Court was assigned this case in October, 2017.166 See Reassignment Notice, filed
October 3, 2017 (Doc. 123)(“Reassignment Notie”). The Court is also acquainted with two of
the newly selected Board members, Doug Brown and Robert Schwartz.167 The members serving
on the Board of Regents on April 12, 2011, were: Jack L. Fortner, Don L. Calmers, Carolyn J.
Abeita, J.E. “Gene” Gallegos, Bradley C. Hosmer, James. H. Koch, and Jacob P. Wellman. See
U. N.M. Board of Regents, University of New Mexico Board of Regents Minutes for April 12,
2011 at 1, http://digitalrepository.unm.edu/bor_minutes/59 (last visited Feb. 25, 2019). The
Court knows Mr. Gallegos as a member of the bar and has socialized with him in that capacity.
Mr. Gallegos has had at least one case before the Court. The Court may have met Mr. Fortner,
Mr. Koch, and Ms. Abeita, but does not recall having met them and does not believe it would
recognize them. The Court does not socialize with them. The Court taught Mr. Fortner’s
daughter in the School of Law class. The Court notes that its relationships with the Board
members it knows are insubstantial, mere acquaintances resulting from the Court’s involvement
in the community. The Court is not so close with any of these members that its impartiality is
reasonably questioned.

See United States v. Guthrie, 184 F. App’x 804, 807 (10th Cir.

2006)(unpublished)(“Mere acquaintance does not require recusal[.]”).

166

Adcock is no longer on the Board of Regents, as his term has expired and Governor
Lujan Grisham has nominated, and the State Senate confirmed, Melissa C. Henry as the Board’s
student regent.
167

Mr. Brown has previously served on the Board of Regents, from 2003 until 2005, but
Mr. Schwartz has not.
See Board of Regents Members, UNM Board of Regents,
http://regents.unm.edu/members/index.html (last visited Feb. 25, 2019).

- 291 -

These relationships with UNM and its Board of Regents are insubstantial and weak, and
would not “cause a reasonable man to doubt the judge’s impartiality.” 168 United States v. Hines,
696 F.2d at 729. There is no evidence that the Court is biased, and the Court is not biased. The
Court has not taught at the School of Law for very long, and likely will not be teaching there
again. Cf. United States v. Moskovits, 866 F. Supp. at 179, 181-82 (finding recusal appropriate
where defendant attended and committed crimes at university where judge taught for twenty
years and where judge’s wife has worked for twenty years). The connection between the Court
and the School of Law is tenuous, and the relationship between the School of Law and the
School of Medicine or the Health Sciences Center is virtually nonexistent. Cf. Easley v. Univ. of
Mich. Bd. of Regents, 906 F.2d 1143, 1145-47 (6th Cir. 1990)(finding recusal not necessary
where judge, in case involving alleged constitutional violations by a law school, graduated from
the law school and participated on its Committee of Visitors). Nobody from the School of Law
is implicated in this case.169 Further, the Board of Regents has broad policy-making power and

168

The Court draws comfort in its conclusion that this is not a “proceeding in which his
impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), from the fact that the Court
has had other cases involving UNM over the years, has made similar disclosures and, to the
Court’s memory, no one has contacted the Court expressing a problem. See Williams v. Bd. of
Regents of the Univ. of N.M., No. CIV 13-0479 JB\WPL, Letter from the Court to Elias Barela,
Henry F. Narvaez, and Carlos M. Quinones (dated November 19, 2013), filed November 19,
2013 (Doc. 26); Gerald v. Locksley, No. CIV 10-0721 JB\LFG, Letter from the Court to Dennis
W. Montoya, Mark T. Baker, and Jennifer L. Attrep (dated January 26, 2011), filed January 26,
2011 (Doc. 33), and Letter from the Court to Dennis W. Montoya, Mark T. Baker, and Jennifer
L. Attrep (dated January 26, 2011), filed January 26, 2011 (Doc. 34).
169

The Judicial Conference’s Advisory Committee on Codes of Conduct has provided
advice on recusal, noted in the Guide to Judiciary Policy Volume 2B, Chapter 3, Compendium of

- 292 -

fiduciary responsibility over UNM. See Regents’ Policy Manual - Section 1.1: Responsibilities
of the Board of Regents, U. N.M. Pol’y Off., https://policy.unm.edu/regents-policies/section-1/11.html (last visited Feb. 28, 2019). It does not appear to be involved in the day-to-day operation
and management of either the School of Medicine or the Health Sciences Center,170 or to be
involved in faculty appointment. See Regents’ Policy Manual - Section 1.1: Responsibilities of
the Board of Regents, supra (“The Board vests responsibility for the operation and management
of the University in the President of the University.”). There is no indication that the Board or
any Board member, past or present, has any knowledge of this case. Accordingly, Dr. Rivero’s
Recusal Motion rests “on unsupported, irrational, or highly tenuous speculation.” Hinman v.
Rogers, 831 F.2d at 939. Recusal is therefore not mandated, and the Court is thus obligated to
preside over the case. See Hinman v. Rogers, 831 F.2d at 939.

Selected Opinions (“Compendium”), which the Court has reviewed in deciding the Recusal
Motion. The Court notes that, if the School of Law or any of its employees were a party, then it
may need to recuse, because, although it is not currently teaching at the School of Law, it has in
the past. See Compendium §§ 3.4-3(a), 4.1-1[1](b). As discussed, this case is not one in which
the Court’s impartiality may reasonably be questioned merely because it has taught at the School
of Law, necessitating recusal. See Compendium § 3.4-3(a). The Compendium states that “no
lawyer who serves on the body setting the judge’s teaching salary should appear before the
judge,” but as the Court received no salary for its teaching, this limitation is inapplicable.
Compendium § 4.1-1[1](b).
170

The Court notes that the Health Sciences Center has its own Board of Trustees which
“oversees the hospitals clinical operations.” See UNM Hospital Board of Trustees, U. N.M.
Health Sci., https://hsc.unm.edu/health/about/leadership/governing-boards/index.html (last
visited Feb. 28, 2019).

- 293 -

B.

THE COURT DOES NOT HAVE AN INTEREST THAT COULD BE
SUBSTANTIALLY AFFECTED BY THE OUTCOME OF THE
PROCEEDINGS.

Dr. Rivero also asserts that, should he win the case, UNM’s federal funding could face
“scrutiny or sanction,” and this adverse financial outcome “could negatively impact what appears
to be a mutually beneficial relationship” between UNM and the Court. Recusal Motion at 10. A
judge must recuse from a proceeding in which he or she “has a financial interest . . . or any other
interest that could be substantially affected by the outcome of the proceeding.” 28 U.S.C.
§ 455(b)(4).

The statute defines the term “financial interest.” with certain exclusions, as

“ownership of a legal or equitable interest, however small, or a relationship as director, adviser
or other active participant in the affairs of a party.” 28 U.S.C. § 455(d)(4).
The statute differentiates between two kinds of interests. If the judge has
direct ownership, legal or equitable, then disqualification is required regardless of
the size of the interest, unless one of the specified exceptions applies. On the
other hand, an interest not entailing direct ownership falls under “other interest,”
and requires disqualification only if the litigation could substantially affect it.
In re N.M. Nat. Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 1980)(quoting 28 U.S.C.
§ 455(b)(4)).
The Tenth Circuit has determined “that a remote, contingent benefit, such as a possible
beneficial effect on future utility bills, is not a ‘financial interest’ within the meaning of the
statute. It is an ‘other interest,’ requiring disqualification under a ‘substantially affected’ test.”
In re N.M. Nat. Gas Antitrust Litig., 620 F.2d at 796 (citing In re Va. Elec. & Power Co., 539
F.2d 357 (4th Cir. 1976)). “Courts faced with construing subsection (b)(4) have inferred that

- 294 -

‘any other interest that could be substantially affected’ also means an interest in the subject
matter of the litigation or a party to it.” In re Drexel Burnham Lambert Inc., 861 F.2d 1307,
1314 (2d Cir. 1988)(citing Dep’t of Energy v. Brimmer, 673 F.2d 1287 (Temp. Emer. Ct. App.
1982); In re N.M. Nat. Gas Antitrust Litig., 620 F.2d 794; In re Va. Elect & Power Co., 539 F.2d
357). For example, the Eleventh Circuit determined that a district judge’s minor “children are
technically members of this class and possess an interest in the outcome of this litigation.”
United States v. Alabama, 528 F.3d 1532 , 1541 (11th Cir. 1987), superseded by statute on other
grounds as recognized in Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990). The Eleventh
Circuit concluded that these interests “are not ‘substantial’ enough to merit disqualification,”
because “[a]ny beneficial effects of this suit upon these children were remote, contingent and
speculative.” United States v. Alabama, 528 F.3d at 1541 (quoting 28 U.S.C. § 455(b)(4)).
Dr. Rivero alleges that the Court possesses an interest in the outcome of this litigation,
because, should it rule against UNM, UNM’s reputation and federal funding could be
endangered, and this adverse ruling could negatively influence UNM’s relationship with the
Court. See Recusal Motion at 10. Dr. Rivero also asserts that a ruling adverse to UNM could
harm the current Board of Regents’ reputation, which could negatively impact the members’
relationships with the Court. See Recusal Reply at 4. Dr. Rivero is “only able to make this
argument by layering several speculative premises on top of one another to reach a speculative
conclusion:” if UNM loses the case, its reputation and federal funding may be harmed; and if the
Court wanted to teach again, UNM might not allow it. Sensley v. Albritton, 385 F.3d 591, 600

- 295 -

(5th Cir. 2004). These potential effects are “remote, contingent and speculative,” and therefore
not substantial. United States v. Alabama, 528 F.3d at 1541. As discussed in the previous
subsection, the Court has never received payment from UNM and is unlikely to teach at the
School of Law in the future. Moreover, it is unclear how the case could possibly impact federal
funding, and Dr. Rivero does not elaborate on what would make the funding “face additional
scrutiny or sanction, including withdrawal of funding, pursuant to an adverse holding of
discrimination.” Recusal Motion at 10 (citing 10 C.F.R. §§ 4.233, 4.46, 4.48). Even if UNM
lost federal funding because of an adverse ruling, this loss of an opportunity to teach and mentor
students, and do public service, would have no financial impact on the Court. See Lunde v.
Helms, 29 F.3d at 371 Further, the Court is not close with the Board of Regents members whom
it knows, and an adverse ruling against UNM would not financially impact the Board members
individually. The Court does not believe it is intellectually sound to say that it has an interest in
the outcome of the litigation merely because of its occasional relationship with UNM and the
Board of Regents, but, even if it had an interest, this case’s outcome will not substantially affect
this interest. See Brody v. President & Fellows of Harvard Coll., 664 F.2d 10, 11 (1st Cir.
1981)(“The mere association of a judge with a party, without indication that the judge stands to
obtain financial or other gain from a particular outcome, may similarly be insufficient to mandate
disqualification.”). Accordingly, recusal is not mandated, and the Court is obligated to preside
over the case. See Hinman v. Rogers, 831 F.2d at 939.

- 296 -

C.

THE RECUSAL MOTION IS UNTIMELY, AND GRANTING IT WOULD
ENCOURAGE MANIPULATION OF THE JUDICIAL PROCESS.

In addition to challenging the propriety of recusal here, UNM asserts that Dr. Rivero’s
Recusal Motion is untimely. See Recusal Response at 1. The Tenth Circuit has held that “[t]he
remedy for judicial prejudice is a motion for recusal that ‘must be timely filed,’ and a party must
act promptly in filing its motion once it knows of the facts on which it relies.” Levy v. Levitt, 3
F. App’x 944, 951 (10th Cir. 2001)(unpublished)(quoting Willner v. Univ. of Kan., 848 F.2d at
1028-29). See United States v. Stenzel, 49 F.3d 658, 661 (10th Cir. 1995)(“We have held that
under either 28 U.S.C. § 144 or § 455, the party seeking recusal must act in a timely fashion to
request recusal.”). Prompt filing “conserves judicial resources and alleviates the concern that it
is motivated by adverse rulings or an attempt to manipulate the judicial process.” United States
v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000)(citing Willner v. Univ. of Kan., 848 F.2d at
1028-29).
Here, the Court was assigned to the case on October 3, 2017, see Reassignment Notice,
and sent the First Disclosure Letter on January 23, 2018, see First Disclosure Letter at 1. The
First Disclosure Letter outlines the Court’s teaching relationship with the School of Law and
how it received research assistants instead of payment. See First Disclosure Letter at 1-2. On
June 22, 2018, the Court sent the Second Disclosure Letter, which elaborates on the teaching at
UNM, and disclosed that the Court knows Mr. Doughty and Mr. Adcock.

See Second

Disclosure Letter at 1-2. Thus, on June 22, 2018, Dr. Rivero had all the facts on which he bases
his Recusal Motion. His counsel told the Court’s Courtroom Deputy Clerk, Ms. Bevel, on June

- 297 -

25, 2018, that Dr. Rivero had no issue with the Court’s disclosure. See Second Rivero Aff. ¶¶ 23, 5, at 1. On June 26, 2018, the Court met with the parties for the first time and held an
extensive hearing that lasted for a little under three hours. See Clerk’s Minutes at 1. The Court
prepared extensively for this hearing, and provided its strong inclination that it would rule
against Dr. Rivero and grant summary judgment for UNM. Then, nine months after the Court
was assigned this case and twenty-five days after the Second Disclosure Letter, Dr. Rivero filed
his Recusal Motion. As for the delay, Dr. Rivero stated that, as of June 25, 2018, he did not have
“sufficient time to reflect upon the disclosures.” Second Rivero Aff. ¶ 3, at 1.
The Court concludes that Dr. Rivero had sufficient time to consider the disclosures and
receive advice from counsel on how to proceed.

The Second Disclosure Letter is short,

consisting of two pages and seven short paragraphs. The disclosures do not require much
reflection and, as discussed in the last two subsections, do not require recusal. Further, the fact
that the Recusal Motion came after the Court indicated it would rule against Dr. Rivero adds an
air of impropriety to the Recusal Motion, suggesting that the true motive for the Motion is to get
the Court off the case because of its adverse rulings against Dr. Rivero. As the Supreme Court
has stated, 28 U.S.C. § 455 “was never intended to enable a discontented litigant to oust a judge
because of adverse rulings made[.]” Ex parte Am. Steel Barrel Co., 230 U.S. 35, 44 (1913).
Granting the Recusal Motion would “waste[] judicial resources and encourage[] manipulation of
the judicial process.” Willner v. Univ. of Kan., 848 F.2d at 1029. This would waste the Court’s

- 298 -

and UNM’s resources. The Court will therefore deny the Recusal Motion, because it is untimely
and the grounds it asserts are legally insufficient.
IT IS ORDERED that: (i) the requests in the Defendant University of New Mexico
Board of Regents’ Motion and Memorandum for Summary Judgment, filed December 5, 2017
(Doc. 139), and in the Defendant University of New Mexico Board of Regents’ Amended
Motion and Memorandum for Summary Judgment, filed December 8, 2017 (Doc. 143), are
granted; (ii) the requests in the Plaintiff’s Motion for Summary Judgment and Memorandum of
Law as to Certain of Defendant Board of Regents of the University of New Mexico’s
Affirmative Defenses, filed December 8, 2017 (Doc. 144), are denied as moot; (iii) the Plaintiff’s
Motion in Limine to Exclude Complaints Against Plaintiff Prior to 2006, filed December 8, 2017
(Doc. 145), is denied; and (iv) the Plaintiff’s Motion in Limine to Prohibit and Exclude Use of
the Term “Psychological” in Reference to “Psychiatric” Evaluations, filed December 8, 2017
(Doc. 146), is denied as moot; and (v) the Plaintiff’s Motion to Recuse the Honorable James O.
Browning, filed July 17, 2018 (Doc. 203), is denied.

________________________________
UNITED STATES DISTRICT JUDGE

- 299 -

Counsel:
Eric D. Norvell
Eric D. Norvell, Attorney, P.A.
Carlsbad, California
Attorney for the Plaintiff
Alfred A. Park
Lawrence M. Marcus
Park & Associates, LLC
Albuquerque, New Mexico
Attorneys for the Defendant

- 300 -