Rodriguez-Ortega v. Rich

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JEREMY RODRIGUEZ-ORTEGA and JOSHUA RODRIGUEZ, Plaintiffs, v. DAVID RICH, KENNETH LUCERO, in their official and individual capacities, and NEW MEXICO DEPARTMENT OF HEALTH, Defendants.

Civ. No. 21-cv-01129 JCH/KK

United States District Court, D. New Mexico

August 3, 2023

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs' Opposed Motion to Exclude Administrative Record and/or Proceed De Novo (ECF No. 34). This case arises out of the termination of the respective employments of Plaintiffs Jeremy Rodriguez-Ortega and Joshua Rodriguez, twin brothers who were both employed by the New Mexico Department of Health (“NMDOH”). Plaintiffs appealed their respective termination decisions, but they have encountered difficulties procuring the administrative records in their cases. Having considered the motions, briefs, evidence, and law, the Court will deny Plaintiffs' motion to exclude the administrative record or to proceed de novo. Instead, the Court will issue a notice clarifying that Plaintiffs timely filed notices of appeal in accordance with NMRA 1-074, which Plaintiffs should submit to the State Personnel Office's Adjudication Division. The Court finds that this remedy may be enough to secure the administrative record from the Adjudication Division for this Court's use in ruling on Plaintiffs' appeals without the need for the more extraordinary remedy Plaintiffs seek.

I. PROCEDURAL BACKGROUND

The facts alleged in Plaintiffs' amended complaint are set forth in this Court's Memorandum Opinion and Order (ECF No. 26). The Court will not repeat those facts here but incorporates them by reference. (See Mem. Op. and Order 2-7, ECF No. 26.) The procedural posture of the case however, is more relevant to the resolution of Plaintiffs' motion.

Joshua Rodriguez received a Notice of Final Action, terminating his employment, on May 19, 2020. (Am. Compl. ¶ 78 ECF No. 18.) He appealed his termination to the State Personnel Board, which accepted his appeal on June 12, 2020. (Id. ¶ 78, 84.) Effective July 25, 2020, NMDOH terminated Jeremy Rodriguez-Ortega's employment. (Id. ¶ 83.) Following their terminations Plaintiffs filed charges of discrimination with the New Mexico Human Rights Bureau (“NMHRB”), and they received an order of non-determination dated July 15, 2021. (Id. ¶ 10.)

On August 18, 2021, Administrative Law Judge (“ALJ”) K. Janelle Haught upheld Joshua Rodriguez's termination. (Id. ¶ 85.) After Joshua Rodriguez filed objections to the decision, the SPB issued a decision against him on September 17, 2021. (See id. ¶¶ 86-93.) On October 12, 2021, Plaintiffs filed a complaint in First Judicial District Court, Santa Fe County, New Mexico, asserting claims against David Rich, Kenneth Lucero, and the NMDOH for violations of the Family and Medical Leave Act (“FMLA”) and other state law claims. (See Compl., ECF No. 1-1.) Count VII of the state court complaint, titled “Petition for Writ of Certoiari,” asserted Joshua Rodriguez's appeal to the district court of the SPB's September 17, 2021, termination decision pursuant to NMSA § 39-3-1.1, NMSA § 10-9-18, and Rule 1-074 NMRA. (Id. ¶¶ 170-71.)

On October 14, 2021, ALJ Aaron Baca determined there was good cause for Jeremy Rodriguez-Ortega's termination and recommended this finding to the SPB. (Am. Compl. ¶ 194, ECF No. 18.)

On November 24, 2021, Defendants removed the state court case to federal court. (Notice of Removal, ECF No. 1.) After Jeremy Rodriguez-Ortega appealed his termination to the SPB, the SPB on December 10, 2021, approved ALJ Baca's decision that there was just cause to terminate his employment. (Am. Compl. ¶ 195, ECF No. 18.)

On January 8, 2022, Plaintiffs amended their complaint to add Count VIII, Jeremy Rodriguez-Ortega's appeal to the district court of the SPB's December 10, 2021, approval of the termination decision. (Id. ¶¶ 189-200.) Although entitled as a petition for writ of certiorari, Rodriguez-Ortega clearly stated that he “appeals his termination to District Court” under NMSA § 39-3-1.1, NMSA § 10-9-18, and Rule 1-074 NMRA. (Id. ¶ 190.) He argues in Count VIII that the SPB decision was contrary to law, not supported by substantial evidence, clearly erroneous, and in violation of the FMLA. (See id. ¶¶ 196-200.)

The amended complaint also carries over claims from the initial complaint: Jeremy Rodriguez-Ortega's claims against Defendant Rich in his individual capacity for FMLA interference (Count I) and FMLA retaliation (Count II); both Plaintiffs' claims against Defendants Rich, Lucero, and the NMDOH for violation of the New Mexico Human Rights Act (“NMHRA”) based on disability or serious medical condition (Count III); Joshua Rodriguez's claims against NMDOH for breach of implied contract (Count IV), breach of good faith and fair dealing (Count V), and violation of the New Mexico Whistleblower Protection Act (“NMWPA”) (Count VI). In the amended complaint, Joshua Rodriguez continues to appeal the SPB termination decision to district court on the basis that it was not supported by substantial evidence, was not fair, was arbitrary and capricious, and is contrary to law. (Am. Compl. 15-27, ECF No. 18.).

Defendants subsequently filed a motion to dismiss the amended complaint on various grounds. (Defs.' Mot. to Dismiss, ECF No. 23.) In a February 9, 2023, Memorandum Opinion and Order, this Court granted the motion in part, but denied it as to the dismissal of Counts I, III, VII, and VIII. (Mem. Op. and Order 1, ECF No. 26.) Most importantly for this motion, the Court rejected Defendants' argument that Plaintiffs' appeals of the termination decisions should be dismissed for failing to comply with the rules by filing respective writs of certiorari instead of notices of appeal. (Id. at 8.) The Court explained that, although Plaintiffs misnamed their claims in the title of the respective counts, the factual and legal assertions made clear that they were filing notices of appeal to the district court. (Id. at 8-9.) This Court also determined that Plaintiffs sufficiently served the notices of appeal on Defendants. (Id. at 9-10.)

The Court, however, agreed with Defendants that Plaintiffs failed to file a certificate in the district court stating that satisfactory arrangements had been made with the agency for preparation of and payment for the record of the administrative proceedings, as set forth in NMRA 1-074(F)(2). (See id. at 9-11) This Court found significant that Plaintiffs emailed Annette Lopez of the State Personnel Office (“SPO”), notifying her of the respective appeals and attaching the respective complaints, (id. at 10), and that Defendants did not dispute that emailing Ms. Lopez was the procedure for filing a document with the SPO, (id.). Although the State Personnel Office failed to prepare the record, Defendants suggested that the reason for the agency's lack of action may have been because they construed Plaintiffs' complaint not to contain proper notices of appeal. (Id.) This Court then set forth its ruling and reasoning in declining to dismiss Counts VII and VIII:

Defendants have not cited authority for the proposition that a plaintiff's notice of appeal must be dismissed with prejudice for failing to file the certificate. Given that Plaintiffs filed with the state agency the notices of appeal in a timely manner, but the state agency did not respond (potentially due to an overly restrictive interpretation of Counts VII and VIII), the proper remedy is to permit Plaintiffs to make the requisite preparations with the agency for the record for the appeal. The Court will grant Plaintiffs an additional 14 days to arrange with the agency the preparation of the record and to file a notice with this Court of the status of the preparation of the administrative record.

(Id. at 10-11.)

Subsequently, on February 20, 2023, Plaintiffs filed a Notice of State Personnel Board's Refusal to Transmit Record (ECF No. 28). In the Notice, counsel explained that she again emailed Annette Lopez, a paralegal and legal assistant in the SPO, on February 16, 2023, informing her of this Court's order that Plaintiffs arrange with the SPO for the preparation and transmission of the record to this Court. (Pl.'s Ex. 1, ECF No. 28-1.) Ms. Lopez responded by email that the “New Mexico State Personnel Board is unable to comply” with the request because the office “was not provided with a receipt of a filed Notice of Appeal in either case.” (Id.) She further set forth the requirement for the Adjudication Division to prepare a record proper for the district court: “only upon notification (receipt of a notice of appeal with appropriate District Court stamped endorsement) from the appealing party that an appeal has been filed.” (Id.)

On March 7, 2023, Plaintiffs filed the motion at issue here. According to the motion, Plaintiffs learned on February 21, 2023, that Teresa Padilla had been appointed to SPO Director while SPB adjudicated Plaintiffs' appeals, even though she had been involved in the appeals. (See Pls.' Mot. 2, ECF No. 34.) Ms. Padilla was employed as the Deputy Director for the SPO on September 18, 2021, the day after the SPB ruled against Joshua Rodriguez but before the SPB ruled on Jeremy Rodriguez's appeal. (See id. at 2-3; Pls.' Ex. 1, ECF No. 34-1.) Ms. Padilla was appointed Director in July 2022, which was after the SPB ruled on both appeals. (Pls.' Ex. 1, ECF No. 34-1; Pls.' Mot. 2, ECF No. 34.)

According to Plaintiffs' amended complaint, Teresa Padilla was involved in a meeting between Jeremy Rodriguez-Ortega and David Rich on March 2, 2020, concerning his work absences where Rodriguez-Ortega was informed his job duties were being reassigned and was encouraged to seek early disability retirement. (See Am. Compl. ¶¶ 2731, ECF No. 18.) ...