DENNIS P. RIVERO, M.D., Plаintiff - Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, d/b/a University of New Mexico Health Sciences Center, Defendant - Appellee.
No. 18-2158
United States Court of Appeals for the Tenth Circuit
February 24, 2020
PUBLISH. FILED United States Court of Appeals Tenth Circuit February 24, 2020. Christopher M. Wolpert, Clerk of Court.
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CV-00318-JB-SCY)
Eric D. Norvell, Eric D. Norvell, Attorney, P.A., Carlsbad, California, argued on behalf of the Appellant.
Lawrence M. Marcus (Alfred A. Park, with him on the brief), Park & Associates, L.L.C., Albuquerque, New Mexico, argued on behаlf of the Appellee.
Before LUCERO, EBEL, and HARTZ, Circuit Judges.
Dr. Dennis P. Rivero appeals the summary judgment awarded the University of New Mexico Board of Regents (Defendant) by the United States District Court for the District of New Mexico. He also challenges the district court‘s denial of his motion to recuse the district judge under
Dr. Rivero was employed full-time by the University of New Mexico Hospital (UNMH) from 1992 until early 2007, when he voluntarily decreased his workload to one day per month while he worked full-time in Oklahoma. After several months on this schedule, Dr. Rivero asked the chair of the UNMH orthopedics department, Dr. Robert Schenck, if he could return to full-time or three-quarter-time employment. For several years nothing came of this request, and Dr. Rivero continued to work in Oklahoma while spending only one day per month performing surgeries at UNMH. Then, in December 2010, Dr. Schenck and Dr. Rivero agreed that Dr. Rivero could gradually reach a three-quarter-time position if he complied with certain conditions. In particular, Dr. Rivero would “attend four counseling sessions” before his workload would be increased. Rivero v. Bd. of Regents of the Univ. of N.M., No. CIV 16-0318 JB/SCY, 2019 WL 1085179, at *7 (D.N.M. March 7, 2019).
In February 2011, UNMH sent Dr. Rivero an addendum to his employment contract (the Addendum) to formalize the terms of the agreement. The Addendum described the counseling sessions as a “four-part psychiatric evaluation,” required Dr. Rivero to submit progress reports from the psychiatrist to the department chair, and mandated Dr. Rivero‘s resignation if he failed to comply with the psychiatrist‘s treatment recommendations. Aplt. App., Vol. 1 at 37–38. Dr. Rivero was given until April 10 to sign the Addendum. He was “shocked by the requirements of the Addendum” and undertook “to investigate any support whatsoever for the requirement of a psychiatric investigation” by seeking access to his personnel files. Rivero, 2019 WL 1085179, at *9. The University refused to turn over his files and withdrew the Addendum about twо weeks later. Dr. Rivero continued to work one day a month at UNMH.
After UNMH refused to let Dr. Rivero see his personnel files, he petitioned for a writ of mandamus in New Mexico state court on August 11, 2011, seeking an order that UNMH provide him access to the files. On August 12, 2013, the court ordered production of the files, and by January 2014 Dr. Rivero had received his complete files. He resigned from his position with UNMH on May 21. His letter of resignation explained: “Now that I know with certainty, upon review of all of the documents produced by UNMHSC, that there is nothing which could have warranted a psychiatric evaluation, or the other terms of the ‘Addendum,’ I can no longer work at an institution that has treated me in this manner.” Aplt. App., Vol. 1 at 138.
Dr. Rivero unsuccessfully pursued relief with the Equal Employment Opportunity Commission (EEOC) by filing a complaint in January 2012. After receiving a right-to-sue letter from the Commission in January 2016, he filed the complaint in this case on April 19, 2016, alleging that UNMH violated the Rehabilitation Act by (1) requiring psychiatric evaluations and (2) constructively discharging him on the basis of a perceived disability. Both parties moved for summary judgment in early December 2017.
The district judge, who was assigned to the case in October 2017, disclosed in letters to the parties on January 23 and June 22, 2018, that he had several ties to the University of New Mexico. He asserted that he believed that he could be “fair and impartial” and neither party objected. Rivero, 2019 WL 1085179 at *24, 31. At the hearing on June 26, the judge stated that he intended to rule in favor of Defendant and would later issue an opinion. Dr. Rivero moved to recuse the judge on July 17. The district court entered summary
II. DISCUSSION
A. Rehabilitation Act Claims
“We review de novo a grant of summary judgment, applying the same standard that governs the district court.” Lauck v. Campbell Cty., 627 F.3d 805, 809 (10th Cir. 2010). Summary judgment is appropriate when “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Section 504 of the Rehabilitation Act of 1973, as amended,
1. Dr. Rivero‘s Medical-Examination Claim
Defendant does not contest that one of the ADA provisions incorporated into the Rehabilitation Act is
A covered entity shall not require a medical examination and shall not make inquiriеs 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.
See Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011) (This “limitation[ ] on the disclosure of medical information . . . [is] incorporated by reference into the Rehabilitation Act.“). The prohibitions in § 12112(d)(4) apply to all employees regardless of their disability status. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997) (“[T]he . . . challenge plaintiff has brought [for an unlawful medical inquiry under
Dr. Rivero claims that UNMH violated the Rehabilitation Act when it conditioned his future full-time employment on his being subjected to psychiatric examinations and treatment. The district court dismissed Dr. Rivero‘s claim as untimely. It ruled that the limitations period for the claim was three years3 and that the claim accrued (so that the limitations period began to run) when Dr. Rivero knew or should have known of facts establishing the elements of a prima facie case. It determined that the evidence was undisputed that Dr. Rivero knew of the terms of the Addendum to his employment contract by March 9, 2011, when he sent an email requesting additional time to decide whether to agree to the terms. The limitations period therefore expired in March 2014, well before Dr. Rivero filed suit in April 2016.
Dr. Rivero does not dispute that the applicable limitations period is three yeаrs and that he was aware of the psychiatric-examination requirement in March 2011.4 Nor does he dispute that by March 2011 he had sufficient evidence to establish a prima facie case on the elements of an unlawful-medical-inquiry claim set forth in Williams.
Rather, what Dr. Rivero argues is that he had the burden to plead facts showing that there was no business-necessity justification for UNMH to require the psychiatric
examination and treatment, and therefore his сlaim did not accrue until he had completed his investigation into whether UNMH had such a justification. Because that investigation was not completed until early 2014, when he received access to his personnel files and “understood” that there was no business-necessity justification for the psychiatric-examination requirement, he asserts that the three-year limitations period did not expire before 2017. Aplt. Br. at 27.
Our precedents foreclose this argument. As previously indicated, business necessity is an affirmative defense on which the employer has the burden of persuasion. See Williams, 849 F.3d at 901 (“[T]he employer may avoid liability by demonstrating that the medical examination or disability-related inquiry was job-related and consistent with business necessity.“); Taylor v. City of Shreveport, 798 F.3d 276, 286–87 (5th Cir. 2015) (“Business necessity is an affirmative defense, so it is generally inappropriate to dismiss a medical inquiry/examination claim at the [
defense that may be raised by the defendant; it is the defendant‘s burden to plead an affirmative defense.“) Therefore, Dr. Rivero could file a proper claim for rеlief without investigating possible affirmative defenses.5
Dr. Rivero contends that our decision in Williams is inconsistent with the Supreme Court‘s opinions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which imposed heightened pleading standards on plaintiffs. But those opinions addressed only how a plaintiff must allege facts supporting the elements of the plaintiff‘s cause of action, not what those elements are. In any event, Williams, which postdated Iqbal and Twombly, is binding precedent in this circuit, and we must follow it absent intervening statutory amendments or Supreme Court decisions. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (requiring panels to follow circuit precedent).6
We therefore affirm the district court‘s grant of summary judgmеnt against Dr. Rivero on this claim because it is time barred.
2. Constructive Discharge
Dr. Rivero‘s other claim under the Rehabilitation Act is that the conduct of those at UNMH was so offensive that his resignation was a constructive discharge. We look to the ADA for the elements of the claim. See Woodman, 132 F.3d at 1339 n.8. “To sustain [an employment-discrimination] claim under the ADA, [the plaintiff] must show that he (1) was disabled; (2) was qualified . . ., and (3) suffered adverse employment action because of the disability.” Mathews v. Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001); see Martin v. Kansas, 190 F.3d 1120, 1129 (10th Cir. 1999) (“To prevаil on a claim of discriminatory discharge under the ADA, a plaintiff must show that (1) he or she is ‘disabled’ within the meaning of the ADA; (2) he or she is a ‘qualified individual’ . . . ; and (3) that he or she was terminated because of his or her disability.“), overruled on other grounds by Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
The district court noted that there was no dispute that Dr. Rivero was a qualified individual and had resigned. But it held that he had not presented adequate evidence of the other elements of his claim. In particular, there was no evidence of the requisite discriminatory intent. The court said that “there is no evidence of any discriminatory actions that UNM took against Dr. Rivero because of a perceived disability, an essential element of his сlaim.” Rivero, 2019 WL 1085179 at *96.
In any event, regardless of whether UNMH acted with discriminatory intent, Dr. Rivero‘s constructive-discharge claim fails on the merits. The offensive treatment at work about which he complains all occurred more than three years before he resigned. He was offended by the Addendum presented to him in February 2011, but it was withdrawn that April. Although it was not until January 2014 that he was able to confirm that his personnel files contained nothing that would support the requirement of a psychiatric investigation, he had believed from the outset that there was no support for the requirement, and he has never indicated that he was surprised by the contents of his files. We do not think that a reasonable person could find a job intolerable because of something that happened to him three years earlier.
Dr. Rivero also complains about UNMH‘s failure to provide him his personnel files until the court ordered that they be produced. But there is no evidence that withholding the files affected his work routine or work environment in any respect other than his displeasure with UNMH‘s litigation position. And, again, he was fully aware of that position years before he resigned. We further note that his appellate briefs fail to point to any evidence in the record of hostile testimony or actions by his supervisors or coworkers in the mandamus action after it was filed in August 2011. The withholding оf files and the mandamus litigation do not support Dr. Rivero‘s claim of intolerable working conditions.
In sum, a three-year-old request for medical examinations, which was soon withdrawn without any change in the present terms of employment, does not create a job environment that a reasonable person would consider intolerable and cannot be the basis of a constructive discharge.7 It
We affirm the summary judgment on the constructive-discharge claim.
B. Disqualification of District Judge
Dr. Rivero appeals the district court‘s denial of his motion that the district judge reсuse himself from hearing the case. He argues that recusal was required by
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances: . . .
(4) He knows that he . . . has a financial interest in the subject matter in controversy or in a party to the proceeding, оr any other interest that could be substantially affected by the outcome of the proceeding[.]
Dr. Rivero predicated his motion for recusal on disclosures made by the district judge. On January 23, 2018, less than four months after the judge was assigned to this case, he sent a letter to the parties to make sure that they were “fully informed and comfortable with my participation in the case.” Rivero, 2019 WL 1085179 at *23. The judge disclosed that he had co-taught a one-semester course at the University of New Mexico School of Law on five occasions, including the immediately preceding fall semester. As compensation for his services during two semesters (including the fall 2017 semester) the Law School paid a student to work as a research assistant for a law-review article being drafted by the judge. The disclosure letter indicated that there was a possibility that the student would continue to work for the judge on the article in the future. Neither party
The judge made a second disclosure on June 22, 2018, four days before the hearing on the parties’ motions for summary judgment was scheduled. The letter clarified that the judge had waived compensation entirely for the other three semesters when he taught at the Law School. He indicated that the University may have treated the waived compensatiоn as a donation. In this second disclosure, the judge also advised the parties of several social ties to the Board of Regents. These included that the president of the Board had attended a dinner party at the judge‘s home several years before the litigation (probably before the guest had become a member of the Board), that the judge may have met another member of the Board at a lunch before he became a judge, and that a student member of the Board had previously worked as an extern for him. On June 25 the judge‘s courtroom deputy contacted the parties to confirm that they had reviewed the additional disclosures and to ask whether they had any objections to the judge‘s hearing the case. Dr. Rivero, through counsel, indicated that he “had no issue with the Court‘s disclosure.” Rivero, 2019 WL 1085179, at *105.
At the hearing on June 26, 2018, the judge indicated that he would likely grant Defendant‘s motion for summary judgmеnt. On July 17 Dr. Rivero filed his motion to recuse.8 The judge denied the motion in his opinion that also granted summary judgment
to Defendant. The opinion denied “the Recusal Motion, because it is untimely and the grounds it asserts are legally insufficient.” Id. With respect to timeliness, the court noted that “[p]rompt filing ‘conserves judicial resources and alleviates the concern that it is motivated by adverse rulings or an attempt to manipulate the judicial process.‘” Id. (quoting United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000)). It said that by the time of the hearing, “Dr. Rivero had sufficient time to consider the disclosures and receive advice from counsel on how to proceed,” and that “the fact that the Recusal Motion came after the Court indicated it would rule against Dr. Rivero added 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.” Id. In support it quoted the Supreme Court‘s statement that
We affirm. But rather than address the merits, we choose to affirm the district court‘s rejection of Dr. Rivero‘s motion to recuse on the ground that his opening brief on appeal never challenges the rejection of the motion on the ground of untimeliness. The opening brief does not even mention that alternative ground. If the district court states multiple altеrnative grounds for its ruling and the appellant does not challenge all those grounds in the opening brief, then we may affirm the ruling. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1236 n.2 (10th Cir. 2016), as amended (July 6, 2016) (plaintiffs waived a challenge
III. CONCLUSION
We AFFIRM the judgment below.