Calero v. CoreCivic Inc.

Filing 33

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS by District Judge Kea W. Riggs. The 7 Motion to Dismiss is GRANTED pursuant to the findings set forth in this Memorandum. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
MARK CALERO,
Plaintiff,
v.

No. 1:20-cv-01015-KWR-KK

CORECIVIC of TENNESSEE, LLC.,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
THIS MATTER comes before the Court upon Defendant CoreCivic of Tennessee’s
Motion to Dismiss for Failure to State a Claim1, filed on October 12, 2020. Doc. 7. Having
reviewed the parties’ pleadings and the applicable law, the Court finds that Defendant’s motion is
well-taken and therefore is GRANTED.
BACKGROUND
This case arises from Plaintiff’s alleged wrongful termination by Defendant from his
position as a Detention Officer at Defendant’s Torrance County Detention Facility.
Plaintiff was hired by Defendant as a detention officer on August 26, 2019. Compl., ¶ 7.
The Complaint alleges that as of his last competency rating on March 9, 2019, Defendant stated
that Plaintiff was meeting all expectations of his job and indicated that he “should seek promotion
when eligible.” Id., ¶¶ 8-9.

Plaintiff’s Complaint originally identifies CoreCivic, Inc. as the Defendant. The parties filed a stipulation to dismiss
and substitute that defendant with Defendant CoreCivic of Tennessee, LLC as the appropriate defendant and Plaintiff’s
employer. Doc. 30. Accordingly, the Court refers to CoreCivic of Tennessee, LLC in this motion to dismiss.
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The Complaint alleges that, “on behalf of himself and others employed by [Defendant],”
[Plaintiff] began calling and leaving voicemails with HR at the facility, requesting information as
to how Defendant intended to respond to and protect its employees from the dangers of COVID19. Id., ¶ 10. On May 15, 2020, Plaintiff called in sick to work with allegedly COVID-like
symptoms. Id., ¶ 11. Plaintiff took a COVID test, which came back negative on May 26, 2020.
Id., ¶ 12. The Complaint alleges that, although Plaintiff had not been to the detention facility since
calling in sick and was personally unaware of the number of positive COVID cases within the
facility for either officers or inmates, he was informed by several fellow officers that COVID
numbers were high. Id., ¶ 13. Plaintiff alleges that on that day, and others thereafter, he attempted
multiple times to contact HR by phone and email regarding the facility’s COVID safety protocols
and plans, leaving “at least” five voicemails. Id., ¶¶ 14-15.
On June 1, Plaintiff received a telephone call from a supervisor questioning whether he
intended to return to work. Id., ¶ 16. Plaintiff informed his supervisor of his COVID-related
inquiries to HR and was purportedly informed that his supervisor was present with HR and that
someone would get back to him shortly. Id., ¶ 17. The Complaint alleges that no one returned his
calls or emails. Id., ¶ 18.
Events Leading to Plaintiff’s Termination
Plaintiff is a member of the New Mexico Civil Guard, “a private group supporting the rule
of law and the 2nd Amendment.” Id., ¶ 19. On June 1st, 2020, Plaintiff attended a protest event in
Albuquerque, New Mexico with members of the New Mexico Civil Guard. Id., ¶ 20. The
members, including Plaintiff, openly carried firearms at the protest. Id., ¶ 21. Plaintiff was
photographed carrying a gun by a local news outlet, which published the photograph online in a
news article, allegedly without Plaintiff’s permission. Id., ¶¶ 23-24, 32.

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On June 4th, 2020, Plaintiff was issued a “Facility Employee Problem Solving Notice,”
when a supervisor saw the article and photograph of Plaintiff. Id., ¶ 25. The Notice provided the
following:
On 6/3/2020, while reviewing social media, Shift Supervisor [redacted] Cole,
discovered a new story on www.kunm.org, regarding a group of armed militia who
were present at a protest occurring on 6/1/2020 in Albuquerque, NM. A photograph
of you holding an assault rifle is attached to this story and demonstrates your
presence and participation with a group calling themselves the New Mexico Civil
Guard.
Your active engagement with an organization that promotes the use of deadly force
by private citizens against those engaged in peaceful protest undermines our
confidence in your commitment to follow policy and procedure and in your ability
to conduct yourself appropriately and with necessary restraint in the performance
of your duties giving appropriate deference to the rights and interests of the
detainees to which you are responsible for overseeing: For these reasons your
employment with CoreCivic is terminated.
Doc. 1-1, Ex. 3.
Plaintiff alleges that neither he nor any members of the New Mexico Civil Guard
threatened anyone at the protest and that he was not provided an opportunity to discuss or explain
the photograph and the circumstances of his attendance to a supervisor. Compl., ¶¶ 22, 28, 30.
The Complaint asserts, among other things, that Plaintiff was wrongfully terminated by Defendant
without the opportunity to seek redress, for behavior assumed to be against company policy but
without a proper investigation by his supervisors. Id, ¶ 33. Plaintiff alleges that his wrongful
termination was in fact in retaliation for his efforts to identify what COVID-19 safety measures
would be enacted for his and others’ safety. Id., ¶ 34.
Plaintiff filed this case asserting the following claims against Defendant: wrongful
termination in violation of public policy (Count I); breach of contract (Count II); breach of the
covenant of good faith and fair dealing (Count III); and “malicious interference with
employment/prima facie tort” (Count IV). Defendant moves for dismissal of all counts. Doc. 7.
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Legal Standard
Rule 12(b)(6) Motion to Dismiss
Rule 12(b)(6) permits the Court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the Complaint
must have sufficient factual matter that if true, states a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). As such, a plaintiff’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). All well-pleaded factual allegations are “viewed in the light most favorable to
the nonmoving party.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136
(10th Cir. 2014). In ruling on a motion to dismiss, “a court should disregard all conclusory
statements of law and consider whether the remaining specific factual allegations, if assumed to
be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1214 (10th Cir. 2011). Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.
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.”
Iqbal, 556 U.S. at 678. Plausibility lies somewhere between possibility and probability; a
complaint must establish more than a mere possibility that the defendant acted unlawfully. Id.
(citing Twombly, 550 U.S. at 556); see also Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007) (“[T]he 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.”). “This requirement of plausibility serves not only to weed out claims that do not

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(in the absence of additional allegations) have a reasonable prospect of success, but also to inform
the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d
1242, 1248 (10th Cir. 2008). The degree of specificity “depends on context”. Id. “Determining
whether a complaint states a plausible claim for relief will ... be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
DISCUSSION
Defendant argues that Plaintiff failed to assert sufficient factual allegations on all counts.
The Court agrees.
I.

Wrongful Termination in Violation of Public Policy (Count I).
Plaintiff alleges that he was wrongfully terminated in retaliation “…for his continued

attempts to identify what actions would be taken by [Defendant] with regard to his health and
safety, as well as the health and safety of others during the COVIC-19 pandemic.” Compl., ¶¶ 34,
37. Defendant has stated, and Plaintiff has not contested, that he was an at-will employee. Thus,
for the purposes of the motion, the Court considers Plaintiff an at-will employee.
The Law Regarding At-Will Termination
In New Mexico, “Generally, either an employee or an employer may terminate an at-will
employment contract at any time, for any reason, without liability.” Melnick v. State Farm Mut.
Auto. Ins. Co., 1988-NMSC-012, ¶ 14, 106 N.M. 726, 730, 749 P.2d 1105, 1109. New Mexico
recognizes two exceptions to this general rule: “(1) wrongful discharge in violation of public policy
(retaliatory discharge); [and] (2) implied contract that restricts the employer's power to
discharge…” Id. at ¶ 14, 106 N.M. at 730, 749 P.2d at 1109. The tort of wrongful discharge is “a
narrow exception to the rule that an at-will employee may be discharged with or without cause.”
Shovelin v. Cent. New Mexico Elec. Co-op., Inc., 1993-NMSC-015, ¶ 24, 115 N.M. 293, 303, 850

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P.2d 996, 1006. Here, the Complaint claims that Plaintiff’s discharge was against public policy in
New Mexico, thereby invoking that exception to the rule. Id., ¶ 39.
Defendant argues that Plaintiff failed to allege facts supporting an exception to the general
rule of employment at-will because he failed to identify a public policy that Defendant allegedly
violated in terminating his employment, instead asserting that he was dismissed in retaliation for
his questioning of Defendant’s COVID-19 safety procedures. Doc. 7 at 8.
Plaintiff contends that the “public policy exception [to terminable at-will employment] is
broader than Defendants [sic]” imply, and that such public policies may be evinced in “legislative
or judicial statements.” Doc. 13 at 4. Citing case law on how courts evaluate whether a public
policy exists, case law which also conforms to Defendant’s interpretation of the law, Plaintiff’s
Response states that he was wrongfully discharged against public interest in two respects: (1) For
“blowing the whistle regarding measures taken or not taken by the Defendant to protect employees
against COVID-19…” and (2) based upon the United States’ “long standing” support of peaceful
protests and the right to participate without being retaliated against by an employer. Id. at 5.
The Court notes, however, that Plaintiff made no such allegation in his Complaint. Rather,
Plaintiff specified that it was his questioning of Defendant’s COVID-19 safety practices and his
armed attendance at a protest event which led to his purportedly wrongful termination. Compl.,
¶¶ 33-34; Doc. 13 at 5 (“Defendant retaliated against the Plaintiff through termination for his
involvement in a protest outside of his work hours and in no way connected to his employment.”).
Fatal to Plaintiff’s claim, he has not identified, in either his Complaint or in his Response in
Opposition to the Motion to Dismiss, a specific public policy that prohibits Defendant from
terminating his employment under the facts as alleged in the Complaint. Shovelin v. Cent. New
Mexico Elec. Co-op., Inc., 1993-NMSC-015, ¶ 25-26, 115 N.M. 293, 303-04, 850 P.2d 996, 1006-

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07. (“The linchpin of a cause of action for retaliatory discharge is whether by discharging the
complaining employee the employer violated a “clear mandate of public policy… ‘[U]nless an
employee at will identifies a specific expression of public policy, he may be discharged with or
without cause.’ ”) (internal citation omitted).
Plaintiff’s own citation to case law stands against his position. Plaintiff proffers Sherrill v.
Farmers Ins. Exch. (2016-NMCA-056, ¶ 18, 374 P.3d 723, 729) for the rules relating to assess
“whether a public policy exists to pursue a wrongful discharge.” Doc. 13 at 5. A careful reading
of Sherrill, however, provides further support for dismissal of Plaintiff’s case:
In the absence of a clearly mandated public policy, the employer retains the right
to terminate workers at will. The Illinois Supreme Court discussed the importance
of requiring retaliatory discharge claims to rest on well-recognized and clear public
policies:
Any effort to evaluate the public policy exception with generalized concepts of
fairness and justice will result in an elimination of the at-will doctrine itself.
Further, generalized expressions of public policy fail to provide essential notice to
employers. The phrase ‘clearly mandated public policy’ implies that the policy will
be recognizable simply because it is clear. An employer should not be exposed to
liability where a public policy standard is too general to provide any specific
guidance or is so vague that it is subject to different interpretations....
Similarly, in New Mexico, when an employee is discharged, contrary to a clear
mandate of public policy, that employee has a cause of action for retaliatory
discharge.
Sherrill v. Farmers Ins. Exch., 2016-NMCA-056, ¶ 16, 374 P.3d 723, 728–29 (internal citation
omitted).
Accordingly, even accepting Plaintiff’s allegations in the Complaint as true, the Court
agrees with Defendant that Plaintiff has not identified any specific New Mexico public policy that
Defendant has purportedly violated, nor cited to applicable statutory or legislative sources creating
an exception to the at-will termination rule that would prevent dismissal of his claim. The Court
finds Plaintiff’s public policy arguments unconvincing. Doc. 13 at 3-4. Therefore, the Court
dismisses Plaintiff’s claim for wrongful termination (Count I).
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II.

Breach of Contract (Count II) and Breach of Covenant of Good Faith and Fair
Dealing (Count III).2
Plaintiff’s Complaint asserts a breach of an implied contract claim and a breach of the

covenant of good faith and fair dealing “…in its employment contract with Plaintiff when they
discharged him for reasons other than his performance or conduct, and for reasons contrary to
public policy.” Compl., ¶¶ 43, 48. Defendant moves to dismiss these claims on the basis that
Plaintiff failed to “allege any facts from which the Court could reasonably infer that [Defendant]
made any representations or engaged in any conduct that could have created a reasonable
expectation on Plaintiff’s part that [Defendant] could only fire him for cause” and because New
Mexico has declined to recognize a cause of action for breach of implied covenant of good faith
and fair dealing in at-will employment arrangements. Doc. 7 at 10-12.
The Law Regarding Breach of an Implied Contract
In Hartbarger v. Frank Paxton Co. (1993-NMSC-029, 115 N.M. 665, 857 P.2d 776), the
Supreme Court of New Mexico outlined the requirements for demonstrating creation of an implied
contract in an at-will employment relationship, such that an employee could reasonably expect to
be terminated only for cause:
To create an implied contract, the offer or promise must be sufficiently explicit to
give rise to reasonable expectations. The at-will presumption that the employee has
no reasonable expectation of continued employment applies only to a single term
of an employment relationship—that of the employer's unabridged right to
terminate the employee. The right to terminate is the only provision of an
employment relationship that is challenged in a case such as the one at bar, where
the employee claims that the employer promised that the employee would be
discharged only for good cause. In recognizing the so-called “implied employment
contract,” we actually have recognized only that an implied-in-fact contract term
limiting the employer's right to terminate at will may modify the underlying
employment relationship. In examining implied employment contract cases, we
always have required that the promise that is claimed to have altered the presumed
at-will term be sufficiently explicit to give rise to reasonable expectations of
2

Plaintiff combines his arguments for these two Counts in his Response to the Motion to Dismiss. The Court therefore
addresses them together.

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termination for good cause only…An employer creates expectations by
establishing policies or making promises. An implied contract is created only where
an employer creates a reasonable expectation. The reasonableness of expectations
is measured by just how definite, specific, or explicit has been the representation or
conduct relied upon.
Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶¶ 13-14, 115 N.M. 665, 672, 857 P.2d 776,
783 (emphasis in original) (internal citations omitted).
Defendant argues that Plaintiff’s Complaint merely asserts that he received a good
evaluation and was encouraged to seek promotion when eligible, and that this is insufficient basis
to demonstrate creation of an implied contract and reasonable expectation that Plaintiff would only
be fired for cause. Doc. 7 at 11; See Garrity v. Overland Sheepskin Co. of Taos, 1996-NMSC-032,
¶ 10, 121 N.M. 710, 713, 917 P.2d 1382, 1385 (internal citation and quotations omitted) (“… [A]
vague impression or general feeling of continued employment is not sufficient to create an
employment contract…Courts have allowed an exception to the at-will employment rule when
there is an implied contract arising out of an employer's promise not to fire an employee except
for just cause. However, we will not find an implied contract for cases in which the alleged promise
by the employer [is] not sufficiently explicit.”).
Plaintiff’s Response, which focuses almost exclusively on its allegations under breach of
covenant of good faith and fair dealing, does not dispute Defendants arguments or the law. Plaintiff
cites case law for the proposition that “Essentially, the implied covenant of good faith and fair
dealing helps ensure that both parties receive the benefit of their respective bargains. The concept
of the implied covenant of good faith and fair dealing requires that neither party do anything that
will injure the rights of the other to receive the benefit of their agreement.” Doc. 13 at 5. Plaintiff
suggest that he has sufficiently demonstrated “genuine issues of material fact” relating to his
wrongful termination such that dismissal must be denied. Id. at 6. Plaintiff then recites “several

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exceptions” to the general rule that at-will employees may be dismissed at any time. Id. In making
his argument, Plaintiff quotes the New Mexico Supreme Court in Melnick for the exceptions to the
general rule, including that New Mexico does not recognize a cause of action for contractual
breach of an implied covenant of good faith and fair dealing. Melnick v. State Farm Mut. Auto.
Ins. Co., 1988-NMSC-012, ¶ 14, 106 N.M. 726, 730, 749 P.2d 1105, 1109. The Court rejects
Plaintiff’s arguments as vague and conclusory at best. Accepting the factual allegations in the
Complaint as true, the Court cannot construe that Defendant made any promises or created a
reasonable expectation that Plaintiff could only be fired for cause. Certainly, the fact that he was
allegedly employed for ten months and received a positive evaluation is not demonstrative of an
exception to the general rule permitting termination of at-will employment at any time. Compl., ¶
42. Accordingly, the Court dismisses Plaintiff’s claims for breach of contract (Count II) and
breach of the covenant of good faith and fair dealing (Count III).
IV.

“Malicious Interference with Employment/Prima Facie Tort” (Count IV).
Plaintiff’s fourth and final claim for “malicious interference with employment/prima facie

tort” which repeats that Plaintiff was removed purportedly to “hide Defendant’s bad acts and lack
of proper COVID safety measures ” is similarly without merit3. Compl., ¶¶ 52-53. Defendant
argues that Plaintiff failed to plead the requisite elements of a prima facie tort claim. Doc. 7 at 1213. The Court agrees.
Plaintiff Fails to Plead the Requisite Elements of a Prima Facie Tort
“The theory underlying prima facie tort is that a party that intends to cause injury to another
should be liable for that injury, if the conduct is generally culpable and not justifiable under the

In its Motion to Dismiss, Defendant is uncertain as to what exactly Plaintiff’s claim is and, therefore, addresses both
intentional interference with contract and prima facie tort. In its Response, Plaintiff only discusses prima facie tort.
The Court therefore limits its discussion to prima facie tort.
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circumstances.” Schmitz v. Smentowski, 1990-NMSC-002, ¶ 37, 109 N.M. 386, 394, 785 P.2d 726,
734. The elements of a prima facie tort are: (1) An intentional, lawful act by defendant; (2) An
intent to injure the plaintiff; (3) Injury to plaintiff, and (4) The absence of justification or
insufficient justification for the defendant's acts. Id. New Mexico courts apply a balancing test to
determine liability under a prima facie tort claim. Hagebak v. Stone, 2003-NMCA-007, ¶ 25, 133
N.M. 75, 82–83, 61 P.3d 201, 208–09. (“The activity complained of must be balanced against its
justification and the severity of the injury, weighing: (1) the injury; (2) the culpable character of
the conduct; and (3) whether the conduct is unjustifiable under the circumstances.”) (internal
citation omitted).
Defendant argues that Plaintiff’s Complaint fails to allege that Defendant terminated his
employment or took other against him with the intent to injure him. Doc. 7 at 14. In his Response,
Plaintiff recites the elements of a prima facie tort; argues that, “While a tort-feasor must act with
the intent to cause injury, and without justification or sufficient justification, it ‘need not be shown
that the act was solely intended to injure plaintiff’”; and asserts generally that, “The Complaint
more than satisfies the pleading standard for New Mexico…” Doc. 13 at 7-8.
With respect to the element of intent, the New Mexico Supreme Court specified that
“Plaintiffs bear a heavy burden to establish the intent to injure.” Lexington Ins. Co. v. Rummel,
1997-NMSC-043, ¶ 12, 123 N.M. 774, 123, 945 P.2d 992, 995. The Court explained that “Intent
to injure is distinct from intent to commit the act which results in injury…The plaintiff must
produce more than a showing that injury is a natural and foreseeable consequence of the act.) Id.,
¶ 14, 123 N.M. at 123, 945 P.2d at 995. Moreover, the New Mexico Supreme Court limited the
scope of application of the tort:
In recognizing prima facie tort, this Court emphasized the importance of limiting
the cause of action. Prima facie tort was not intended to provide a remedy for every
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intentionally caused harm. Rather, the cause of action provides a remedy for acts
committed with an intent to injure the plaintiff and without justification. Therefore,
balancing the malicious intent of the defendant against both the justifications for
the injurious act offered by the defendant and the severity of the injury is a
necessary step in assessing whether a prima facie tort has been committed. Where
there is no evidence of intent to injure, there is no need to proceed with the
balancing test.
Id. (internal citation omitted) (emphasis added).
Here, the Court concludes that Plaintiff has not adequately alleged the requisite
elements of a prima facie tort. Plaintiff’s general statement that he “stand[s] ready and
willing to amend their [sic] Complaint to provide a pleading that lays out the claim more
conclusively for the Defendant” is incorrect procedure to seek the Court’s permission to
amend the Complaint. Doc. 13 at 3; See Brooks v. Mentor Worldwide LLC, 985 F.3d 1272,
1283 (10th Cir. 2021) (“We have long held that bare requests for leave to amend do not
rise to the status of a motion and do not put the issue before the district court.”).
Accordingly, the Court dismisses Plaintiff’s claim for “malicious interference with
employment/prima facie tort” (Count IV).
CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss is GRANTED.
THEREFORE,
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is hereby GRANTED for
the reasons described in this Memorandum Opinion and Order.
A separate judgment will be entered.

________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

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