JOHN WILLS, M.D., Plaintiff-Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO and UNIVERSITY OF NEW MEXICO HEALTH SCIENCES CENTER, Defendants-Appellees.
NO. 33,465
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
July 21, 2015
Appeal from the District Court of Bernalillo County, Clay Campbell, District Judge
Timothy L. White
Albuquerque, NM
for Appellant
Sheehan & Sheehan, P.A.
Quentin Smith
Leah M. Stevens-Block
Albuquerque, NM
for Appellees
OPINION
KENNEDY, Judge.
{1} Plaintiff John Wills, M.D. sued the Board of Regents of the University of New Mexico and the University of New Mexico Health Sciences Center (Defendants) for breach of contract and, relatedly, breach of the covenant of good faith and fair dealing. He later amended his complaint to include claims of a violation of due process and a violation of the New Mexico Whistleblower Protection Act (the WPA),
{2} On appeal, Plaintiff argues that the district court erred in dismissing his breach of contract1 and WPA claims and in entering judgment on the pleadings as to his due process claim. We conclude that the district court did not err, and we affirm.
BACKGROUND
{3} Plaintiff was hired to the position of Chair of the Department of Anesthesiology and Critical Care Medicine at the University of New Mexico Health Sciences Center in September 2002. Pursuant to a two-year employment contract, Defendants agreеd to pay Plaintiff a base salary plus a supplemental salary. After the two-year term of the contract expired, Defendants continued to pay Plaintiff‘s salary in an amount consistent with the payment-related terms of the original contract until 2009. After 2009 Defendants stopped paying Plaintiff pursuant to those original contract payment-related terms.
{4} In June 2011, Plaintiff filed a complaint for breach of contract and breach of the covenant of good faith and fair dealing (the initial complaint) by which he sought to recover “past due salaries” that were unpaid
{5} After Defendants terminated his employment, Plaintiff amended his complaint, adding a claim for retaliatory violation of due process. In support of his due process claim, Plaintiff alleged that by terminating his employment in retaliation for filing the initial complaint, Defendants viоlated Plaintiff‘s constitutional right of access to the courts. Later, in a third amended complaint, Plaintiff added a new claim in which he alleged that, by retaliating against him for filing the initial complaint, Defendants abused their authority in violation of the WPA.
{6} Defendants moved to dismiss Plaintiff‘s third amended complaint pursuant to
{7} Defendants again sought dismissal of Plaintiff‘s due process claim in a motion for a judgment on the pleadings pursuant to
{8} In support of his argument that the TCA was unconstitutional as applied in this case, Plaintiff argued that access to the courts is a fundamental right and that by depriving him of access to the courts and, concomitantly, a remedy in this case, the TCA violated his right to equal protection. Plaintiff also argued that he had a fundamental right to “a means to a remedy,” and to the extent that the TCA barred his ability to exercise the right to seek a remedy in this instance, its application violated his substantive and procedural due process rights.
{9} The district court was not persuaded by Plaintiff‘s constitutional arguments. Having considered Defendants’ motion for a judgment on the pleadings and Plaintiff‘s response, the district court granted the motion for a judgment on the pleadings, thereby dismissing Plaintiff‘s due process claim.
{10} On appeal, Plaintiff argues that the factual allegations in his complaint satisfied the plain language of the WPA and that the district court‘s dismissal of his WPA claim was founded on an erroneous interpretation of the law. He also argues that because he had an implied employment contract, he was legally entitled to sue Defendants for breach of contract and that the district court erred in concluding otherwise. And, finally, reiterating the argument that he made in response
{11} We conclude that because Defendаnts’ breach of contract claim was not founded upon a valid written contract, the district court properly dismissed his claim. We further conclude that the allegations in Plaintiff‘s complaint did not state a claim under the WPA. And, finally, we conclude that Plaintiff‘s constitutional attack on the TCA is not supported by the relevant law, and we affirm the district court‘s judgment on the pleadings as to Plaintiff‘s due process claim.
Standard of Review
{12} We review de novo a district court‘s decision to dismiss a case for failure to state a claim under
Plaintiff‘s WPA Claim
{13} Plaintiff‘s WPA claim was based on the allegation that Defendants retaliated against him for filing the initial complaint by terminating his employment and that this retaliatory act constituted “an abuse of authority” as that term is used in the WPA. See
{14} The WPA provides that it is unlawful for a public employer to “take any retaliatory action against a public employee because the public employee . . . communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act[.]”
{15} In his complaint, Plaintiff failed to allege that Defendants retaliated against him because he communicated with a third party or with Defendants about Defendants’ abuse of authority. Rather, Plaintiff alleged only that the act of retaliation, that is, the termination of his employment, constituted an abuse of authority. Because the WPA exclusively protects an employee‘s communications, by fаiling to allege that Defendants retaliated against him because he communicated about “an unlawful or improper act” as that term is defined in the WPA, Plaintiff omitted the element of communication that was essential to his WPA claim. Am. Fed‘n of State Cnty. and Mun. Emps. Council 18 v. State, 2013-NMCA-106, ¶ 6, 314 P.3d 674 (recognizing that to withstand dismissal for failure to state a claim, the facts pleaded must meet the essential elements of the claim). Plaintiff‘s argument on appeal that Defendants violated the WPA whеn they abused their authority by retaliating against him is not supported by any facts or by any language of the WPA and is, therefore, unpersuasive.
{16} On appeal, Plaintiff expands his WPA theory. He now argues that by filing the initial complaint, “he was communicating to both his public employer and to a third
{17} Defendants argue that whistleblower protection laws, including the WPA, dо not protect an employee‘s “communications” about a personal employment grievance. Rather, Defendants argue, the purpose of whistleblower protection laws generally and the WPA specifically is to protect employees who risk their own job security for the good of the public by disclosing the unlawful and improper activities of public officials. Because Plaintiff‘s at-issue lawsuit “communication” pertained only to whether Defendants were required to pay Plaintiff according to the terms of the original contract, Defendants contend that the communication was not one that was protected by the WPA.
{18} Plaintiff has conceded that the breach of contract allegations that he communicated in his initial complaint did not pertain to “a matter of public concern.” He argues, however, thаt this Court should not read into the statute something that is not there, namely, a requirement that to qualify for the protections of the WPA, the employee‘s at-issue communication must pertain to a matter of public concern. In Plaintiff‘s view, the “plain meaning” of the text of the WPA reveals the Legislature‘s intent to permit a WPA claim under the circumstances of this case.
{19} The issue whether Plaintiff was entitled to whistleblower protection arising out of his lawsuit communication regarding Defendants’ failure to pay him according to the terms of the original employment contract is a matter of first impression in New Mexico. “When New Mexico cases do not directly answer the question presented, we look for guidance in analogous law in other states or the federal system.” CIT Grp./Equip. Fin., Inc. v. Horizon Potash Corp., 1994-NMCA-116, ¶ 6, 118 N.M. 665, 884 P.2d 821. The WPA was modeled after its federal counterpart. See
{20} Like the WPA, the federal whistleblower protection law does not explicitly limit whistleblower protection to communications that benefit the public or pertаin to matters of public concern. Nevertheless, as Defendants demonstrate in their answer brief, federal courts interpreting the federal whistleblower protection law have distinguished “whistleblowing” that benefits the public by exposing unlawful and improper actions by government employees from communications regarding personal personnel grievances that primarily benefit the individual employee. See Whitmore v. Dep‘t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (stating that the fеderal whistleblower protection law “makes clear that whistleblowing provides an important public benefit“); Winfield v. Dep‘t of Veterans Affairs, 348 F. App‘x. 577, 580 (Fed. Cir. 2009) (per curiam) (“Whistleblower protection does not extend to an employee‘s personal grievances about his job.“); Riley v. Dep‘t of Homeland Sec., 315 F. App‘x. 267, 270 (Fed. Cir. 2009) (stating that “personal disagreements with legitimate managerial decisions” do not demonstrate abuse of authority or “any other kind of activity that could be considered a whistleblowing disclоsure“); Willis v. Dep‘t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998) (stating that the federal whistleblower protection laws are “designed to protect employees who risk their own personal job security for the benefit of the public“). Only the former is protected by whistleblower protection laws. See Montgomery v. E. Corr. Inst., 835 A.2d 169, 180 (Md. 2003) (discussing the legislative intent of the federal whistleblower protection laws and stating that the term “whistleblowing,” which generally evokes the type of public disclosure that “serve[s] the publiс interest by assisting in the elimination of fraud, waste, abuse, and unnecessary government expenditures[,]” does not include an individual‘s communications regarding a supervisor‘s maltreatment of him personally (emphasis, internal quotation marks, and citation omitted)).
{21} Plaintiff argues that the foregoing authorities are not binding on this Court and should not bear on our analysis of the WPA. However, aside from citing the bare text of the WPA, he provides no authority to suрport the proposition that, by communicating about his dispute with Defendants over whether Defendants were required to pay him according to the terms of his expired employment contract, he engaged in an activity that was protected by the WPA. We will therefore assume that no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that, if no authority is cited in support of a proposition the appellate courts will assume that no such authоrity exists). Further, the object of statutory interpretation is to construe its terms according to their “obvious spirit or reason,” not to interpret its terms in a way that would lead to an absurd or unintended result. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 3, 117 N.M. 346, 871 P.2d 1352 (internal quotation marks and citation omitted). Nothing in the language of the WPA, when read in its entirety and against the backdrop of the earlier discussed federal authorities, leads us to believe that Plaintiff‘s initial complaint constituted a protеcted whistleblowing activity. Since the district court reached the same conclusion, we affirm its order dismissing Plaintiff‘s WPA claim.
Plaintiff‘s Contract Claim
{22} The district court dismissed Plaintiff‘s breach of contract claim on the ground that Plaintiff‘s employment contract expired by its own terms after two years and, in the absence of a valid written employment contract, Plaintiff‘s claim was barred by
{23}
{24} In the present case, the two-year employment contract between Plaintiff and Defendants expired in September 2004. Plaintiff allegеd, however, that, “[t]he terms of the original contract . . . [were] continued by the acts of the parties” and by Defendants’ subsequent payment of Plaintiff‘s salary in an amount consistent with the terms of the original contract. Relying on the principle that “an implied employment contract . . . may be found . . . in the conduct of the parties,” Plaintiff argues that the continued acts of the parties under the circumstances of this case gave risе to an implied contract. Id. ¶ 10 (internal quotation marks and citation omitted).
{25} Even assuming that the parties’ conduct gave rise to an implied employment contract, without a showing that the terms of the implied contract were written,
Plaintiff‘s Due Process Claim
{26} In his third amended complaint, Plaintiff alleged that Defendants violated his due process right of access to the courts by terminating his employment in retaliation for filing his initial complaint. Plaintiff cоnceded that insofar as his claim for damages did not fit within one of the enumerated exceptions to governmental immunity under the TCA, his claim was barred. See Valdez, 2002-NMSC-028, ¶ 12 (recognizing that “absent a waiver of immunity under the [TCA], a person may not sue the state for damages for violation of a state constitutional right” (internal quotation marks and citation omitted)). Plaintiff argued, however, that as applied to his claim, the TCA was unconstitutional in that it violated his “fundamental right” of access to the courts. The district court rejected Plaintiff‘s constitutional attack on the TCA and granted Defendants’ motion for a judgment on the pleadings. On appeal, Plaintiff re-asserts his as-applied challenge to the constitutionality of the TCA on equal protection and due process grounds.
{27} We do not discern any substantive distinction between Plaintiff‘s equal protection and due process argumеnts. In his equal protection argument, Plaintiff argues that the TCA violates his fundamental right of access to the courts by barring his claim for monetary damages against Defendants. And in his due process argument, Plaintiff argues that the TCA is unconstitutional because it acts as a “complete ban” upon his fundamental right of access to the courts to seek a monetary remedy in this case. Thus, Plaintiff‘s sole argument is that the TCA is unconstitutional because it does not permit him to exercise what he asserts is a fundamental right, that is, the right to sue Defendants for monetary damages.
{28} Plaintiff‘s constitutional attack on the TCA is unavailing because it improperly conflates the constitutionally guaranteed right of access to the courts with the notion of entitlement to recover monetary damages. The right of access to the courts is an implicit guarantee derived from
{29} Plaintiff‘s constitutional argument is also unpersuasive because it is based on the erroneous assumption that he had a fundamental right to sue Defendants for damages. The right to sue the government for tort damages is not a fundamental right; it is a statutory right. See Marrujo v. State Highway Transp. Dep‘t, 1994-NMSC-116, ¶¶ 18, 24, 118 N.M. 753, 887 P.2d 747 (stating that there is no fundamental right to sue the government for tort damages; rather, “[t]he right to sue the government is a statutory right“). As such, the Legislature may reasonably restrict that right, as it has done in the TCA. See id. ¶ 24 (stating that the Legislature may reasonably restrict the right to sue the government for tort damages); Garcia v. Albuquerque Pub. Sch. Bd. of Educ., 1980-NMCA-081, ¶ 9, 95 N.M. 391, 622 P.2d 699 (recognizing that creating exceptions to sovereign immunity via the TCA is a function of the Legislature, not of the courts).
{30} In sum, Plaintiff has failed to demonstrate that the absence of a TCA exception
CONCLUSION
{31} We affirm.
{32} IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
CYNTHIA A. FRY, Judge