Rivero v. Univ. N.M. Board of Regents
950 F.3d 754
| 10th Cir. | 2020Background
- Rivero was a long-time orthopedic surgeon at the University of New Mexico Hospital (UNMH); in 2010–11 he sought to return to increased hours and UNMH presented an employment addendum conditioning more work on a “four-part psychiatric evaluation” and compliance with treatment.
- Rivero rejected the Addendum, which UNMH withdrew in April 2011; he later sought his personnel file via mandamus and obtained it by January 2014.
- Rivero resigned (May 21, 2014) stating that, after reviewing his files, he could not continue working where UNMH had required psychiatric evaluation without justification.
- He filed an EEOC complaint in January 2012, received a right-to-sue in January 2016, and sued under Section 504 of the Rehabilitation Act in April 2016 alleging (1) unlawful medical examination/inquiry and (2) constructive discharge based on perceived disability.
- The district court granted summary judgment to the Board of Regents: it held the medical-examination claim time-barred and that Rivero failed to show objectively intolerable working conditions for constructive discharge; it also denied Rivero’s §455 recusal motion as untimely and legally insufficient.
- On appeal the Tenth Circuit affirmed: the medical-examination claim accrued in March 2011 and was untimely; the constructive-discharge claim failed because the challenged conduct was remote in time and not objectively intolerable; recusal denial was affirmed on the alternative ground that Rivero did not contest the district court’s timeliness ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditioning employment on psychiatric exams violated the Rehabilitation Act (medical-exam/inquiry claim) | Rivero: claim did not accrue until he could show UNMH lacked business-necessity justification (after obtaining personnel files in 2014) | UNMH: accrual occurred when Rivero knew of the Addendum (March 2011); business necessity is an affirmative defense | Held: accrual in March 2011; three-year limitations expired before suit; claim time-barred; employer bears burden on business necessity (Williams) |
| Whether Rivero was constructively discharged due to perceived disability | Rivero: Addendum and withholding of files made work environment intolerable, forcing resignation | UNMH: challenged conduct was withdrawn in 2011, remote in time, and did not produce objectively intolerable conditions or discriminatory intent | Held: no constructive discharge—challenged events were >3 years before resignation, not objectively intolerable, and no evidence of discriminatory intent |
| Whether the district judge should have recused under 28 U.S.C. § 455 | Rivero: judge’s disclosed ties to UNM and social connections raised reasonable question of impartiality | UNMH: disclosures were minor; Rivero consented to judge’s participation earlier; motion filed untimely after judge signaled adverse ruling | Held: recusal denied as untimely and legally insufficient; Tenth Circuit affirms on alternative ground that Rivero failed to challenge district court’s timeliness ruling on appeal |
Key Cases Cited
- Williams v. FedEx Corp. Servs., 849 F.3d 889 (10th Cir. 2017) (employer bears burden to prove medical-exam/inquiry was job-related and consistent with business necessity)
- Fernandez v. Clean House, LLC, 883 F.3d 1296 (10th Cir. 2018) (plaintiff need not plead facts negating affirmative defenses)
- Green v. Brennan, 136 S. Ct. 1769 (2016) (elements of constructive discharge: objectively intolerable conditions and actual resignation)
- Sanchez v. Denver Pub. Sch., 164 F.3d 527 (10th Cir. 1998) (objective-intolerability standard for constructive discharge)
- Lauck v. Campbell Cty., 627 F.3d 805 (10th Cir. 2010) (standard of review for summary judgment)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards)