FIRST JUDICIAL DISTRICT COURT COUNTY OF SANTA FE STATE OF NEW MEXICO AMBER ESPINOSA-TRUJILLO, Plaintiff, vs. No. NEW MEXICO DEPARTMENT OF HEALTH, Defendant.

COMPLAINT FOR WHISTLEBLOWER PROTECTION AND FOR COMPENSATORY AND

PUNITIVE DAMAGES

Plaintiff Amber Espinosa-Trujillo (“Espinosa-Trujillo”), by and through her counsel,

Trent A. Howell, Esq., brings this Complaint against the New Mexico Department of Health

(“DOH”) for violations of the New Mexico Whistleblower Protection Act (“NMWPA”), NMSA

§ 10-16C-1 et seq.

BACKGROUND

1. From August 2010 through October 2, 2014, Ms. Espinosa-Trujillo was Bureau

Chief of the State’s DOH Health Facility Licensing & Certification Bureau (“HFL&C”).

2. HFL&C is budgeted approximately $3 million in combined federal and state

Medicaid funds to license and to certify over 1,100 New Mexico health facilities to provide

millions of dollars in Medicaid-reimbursed services to many thousands of New Mexico citizens.

3. In 2010, the administration above Ms. Espinosa-Trujillo began systematically

disabling HFL&C, refusing to hire full-time employees for at least half of its 50+ budgeted full-

time employee positions, and methodically wasting its budget by instead hiring private

contractors at project rates more than twice what a regular state employee would cost.

FILED IN MY OFFICEDISTRICT COURT CLERK

12/22/2014 12:17:41 AMSTEPHEN T. PACHECO

Victoria Martinez

D-101-CV-2014-02627

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4. Seeing these practices would prevent HFL&C from properly qualifying all of its

facilities, and knowing this, in turn, would lead to improper certifications and/or defunding of

large numbers of facilities and thousands of patients, Ms. Espinosa-Trujillo opposed the situation

through proper administrative channels and by advocating for full staffing and operation of her

Bureau.

5. Over time, the United States Department of Health and Human Services, Centers

for Medicare & Medicaid Services (“CMS”) also noted the understaffing problem and the impact

it was beginning to have on funding and delivery of Medicaid services in New Mexico.

6. For example, after it became clear DOH was refusing to hire enough qualified

surveyors, Ms. Espinosa-Trujillo, herself, began going into the field to survey facilities. But

when Ms. Espinosa-Trujillo made this known to CMS, the federal agency in April 2013 warned

the DOH Acting Division Director, Judy Parks (“Parks”), and the Chief Nursing Officer, Gayle

Nash (“Nash”), that this was an unacceptable way to deal with its understaffing issue. And in

turn, Ms. Espinosa-Trujillo could no longer use her own time to offset, let alone bridge, the

survey-staffing gap that DOH had deliberately created and maintained.

7. In response and retaliation for Ms. Espinosa-Trujillo’s good faith actions in the

public interest, high-ranking State and DOH officials not only became more aggressive in

attempting to undermine HFL&C, but they also began a transparent scheme to set up Ms.

Espinosa-Trujillo as the scapegoat for any failure by HFL&C to perform its mission.

8. Shortly after CMS reprimanded DOH, and despite its clarification that Ms.

Espinosa-Trujillo could not singlehandedly conduct the requisite surveys, or fill the staffing gap,

Parks and Nash began trying to portray the HFL&C problem as Ms. Espinosa-Trujillo not doing

her individual job.

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9. On July 5, 2013, Parks gave Ms. Espinosa-Trujillo a negative evaluation and

stated she was in the process of putting Ms. Espinosa-Trujillo on an Employee Development

Plan.

10. On July 31, 2013, Nash similarly began dismissing any discussion by Ms.

Espinosa-Trujillo of staffing issues with a statement, “it’s a leadership issue, and you are their

leader.”

11. Paradoxically, Parks and Nash not only continued blocking and not cooperating

with hiring of HFL&C survey staff, but they also began excluding Ms. Espinosa-Trujillo from

CMS meetings and conference calls – in both respects, preventing her from doing the job.

12. Realizing she was being set up, Ms. Espinosa-Trujillo in August 2013 went to the

persons whom she could identify as appropriate to ask for protection under the NMWPA and to

be spared further retaliation. On August 5, 2013, Ms. Espinosa-Trujillo made this specific

request, with specific reference to the NWPA, to Sandy Martinez at the State Personnel Office

and to Irene Rubio at Governor Susana Martinez’s Office of Constituent Services. On August 9,

2013, she made the same request to Greg Lauer, DOH Equal Employment Opportunity Officer,

and to Elona Cruz, DOH Labor Relations Officer.

13. However, after these requests, the State and DOH retaliation continued and

intensified. It expanded to include false allegations of misconduct, groundless disciplinary

actions, an October 24, 2013 Notice of Corrective Action, a one-day suspension without pay, an

actual and/or effective “black-listing” of Ms. Espinosa-Trujillo from obtaining other comparable

State employment, a gradual stripping of authority from her HFL&C Bureau Chief position, a

transfer of her, under duress, out of the HFL&C Bureau Chief position, and a demotion to

another, lesser position – all to the extreme emotional distress of Ms. Espinosa-Trujillo.

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14. This action is brought under and for redress of Defendant’s violations of the

NMWPA and the common law of the State of New Mexico.

PARTIES, STATE PROGRAMS, AND JURISDICTION

15. Ms. Espinosa-Trujillo at all relevant times was a resident of Santa Fe, New

Mexico and a public employee in Santa Fe, New Mexico of Defendant, which is a public

employer within the meaning of NMSA §10-16C-2.

16. Defendant employed Ms. Espinosa-Trujillo as Chief of the DOH HFL&C Bureau.

17. HFL&C is responsible for:

a. establishing, monitoring and enforcing quality standards for over 1,100

health facilities to assure the safety and wellbeing of residents/patients/clients;

b. developing policy and collaborating with providers, consumers, regulatory

agencies, state and local ombudsmen, federal, state and local policymakers, and

professional associations to assure that quality standards are met; and

c. assuring that the public receives the type of care that promotes their

quality of life, their dignity, and their autonomy.

18. HFL&C discharges these responsibilities through a number of programs,

including:

a. State Licensure

b. Federal Certification

c. Long Term Care

d. Medical Care

e. Clinical Laboratory Improvement

f. Complaint Investigations

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STATE LICENSURE PROGRAM

19. All New Mexico health care facilities (hospitals, nursing homes, hospice care,

personal care boarding homes, ambulatory surgical centers, community health clinics, dialysis

centers, group homes for persons with developmental disabilities, and community mental health

clinics) require state licensure.

20. HFL&C’s State Licensure Program affects two critical areas of health care service

delivery:

a. staff assist potential health care providers in understanding and in meeting

all requirements necessary to open a new facility; and

b. quality of care is assured through the regulatory process and monitoring of

facilities

21. HFL&C compliance officers inspect all licensed and certified facilities to ensure

safety and health of individuals. Life Safety Code surveyors conduct fire safety inspections. A

licensed Architect and Architect Technician review health facility construction plans for

compliance.

FEDERAL CERTIFICATION PROGRAM

22. Although many health facilities are state-licensed only, federal certification is

required under the Medicare and Medicaid laws in order for a health facility to receive federal

and state reimbursement for services provided to Medicare and/or Medicaid patients.

23. HFL&C’s Federal Certification Program ensures that long-term care licensed and

certified facilities (i.e., nursing homes) meet the established standards for health and safety.

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24. In direct consideration for HFL&C performing this monitoring for compliance

with these federal standards, the State annually qualifies for and receives substantial funds from

CMS.

MEDICAL CARE PROGRAM

25. Through this program, HFL&C ensures that all other non-long-term care facilities

(i.e. hospitals, home health agencies, renal dialysis centers, and rural health clinics) meet the

established standards for health and safety in both licensed and certified establishments.

CLINICAL LABORATORY IMPROVEMENT

26. This program ensures that all laboratory facilities (including physician office

laboratories) meet the established health and safety standards for specimen testing.

COMPLAINT INVESTIGATIONS

27. Finally HFL&C conducts an active complaint investigation process system to

assure that:

a. Residents'/Patients' rights are protected

b. Residents/Patients are free from abuse

c. Residents'/Patients' quality of life and quality of care are assured.

28. Defendant, by and through its HFL&C Bureau, maintain offices in Santa Fe

County, making venue in this Court proper pursuant to NMSA §38-3-1.

29. The unlawful employment practices alleged herein were committed in, directed

by Defendant to, and arise from Ms. Espinosa-Trujillo’s employment in Santa Fe County, New

Mexico, thereby conferring jurisdiction and venue over the parties and subject matter hereto in

this Court.

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30. The court has jurisdiction over the parties and subject matter pursuant to NMSA

§28-1-13 and Article VI, §13 of the Constitution of the State of New Mexico, and venue is

proper pursuant to NMSA §28-1-13.

COUNT I WHISTLEBLOWER RETALIATION

31. Ms. Espinosa-Trujillo incorporates as if fully set forth herein the allegations made

in the preceding paragraphs.

32. In the course of her employment as HFL&C Bureau Chief, Ms. Espinosa-Trujillo

observed a number of actions and failures to act that Ms. Espinosa-Trujillo in good faith believed

were “unlawful or improper acts” by DOH, within the meaning of NMSA §10-16C-3 and NMSA

§10-16C-2.

33. The “unlawful or improper acts” by DOH included practices, procedures, actions

and failures to act on the part of DOH that:

a. violate a federal law, a federal regulation, a state law, a state

administrative rule or a law of any political subdivision of the state;

b. constitute malfeasance in public office; and

c. constitute gross mismanagement, a waste of funds, an abuse of authority

and a substantial and specific danger to the public.

34. Specifically, DOH over an extended period:

a. understaffed HFL&C to a disabling extent;

b. refused hiring of regular employees to fill budgeted positions;

c. thus forced HFL&C instead:

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i. to incur excessive time-and-half liability through overtime usage of

existing staff, thus wasting substantial budgeted funds through

inefficiency; and

ii. to utilize independent contractors at approximately double the per

capita cost of regular employees and – on that basis alone – cutting in

half the efficiency of such funds; and

d. thus, hobbled certification and licensing of healthcare facilities in the State

with an intent to cause, and/or in reckless disregard of, a looming result that facilities

would be de-certified and de-licensed, and in turn the provision of public health services

and/or the state and federal outlays of funds to reimburse such services would plummet.

35. After making these observations, Ms. Espinosa-Trujillo:

a. communicated to the public employer, DOH, and to a third party

(including but not limited to CMS) information about such unlawful and improper acts;

b. provided information to a public body (including but not limited to CMS)

as part of an investigation, hearing or inquiry into such unlawful and improper acts; and

c. objected to and refused to participate in such unlawful and improper acts.

36. However, as more specifically alleged above, in direct and immediate retaliation

for Ms. Espinosa-Trujillo’s communications, information, and objections, DOH belittled,

harassed, intimidated, and undermined her in such a manner and to such a degree as to cause Ms.

Espinosa-Trujillo to suffer severe emotional distress, to incur medical bills, to take medical

leave, to consume paid leave time, to suffer loss of pay, and to be constructively discharged from

public employment as a Bureau Chief, with the result that she has lost responsibility and

potential for advancement.

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37. The pattern of retaliation included, but was not limited to the conduct described

above, subjecting Ms. Espinosa-Trujillo to false and frivolous disciplinary notices, write-ups,

and process, and, further, the following:

a. Following and founded upon its October 24, 2013 Notice of Corrective

Action, DOH suspended Ms. Espinosa-Trujillo without pay for one day.

b. The practical and, it is believed, intended effect of DOH’s suspension

action was to render Ms. Espinosa-Trujillo incapable of moving to another comparable

position in state government.

c. In an e-mail on February 19, 2014, Teresa Padilla, Manager of DOH

Human Resources, memorialized an administration policy that all hiring of positions at or

above the bureau chief level would have to be approved by the relevant Deputy

Secretary.

d. Ms. Espinosa-Trujillo understands from multiple sources that, under the

current administration, government employees who rank as or above bureau chief are

considered black-listed, and not hirable, if they have written discipline on record.

e. In turn, and because she desperately wanted and was trying to transfer out

of DOH to another state job, Ms. Espinosa-Trujillo had no choice but to appeal the

suspension decision through the State Personnel Office, which she did.

f. On information and belief, DOH spent over $30,000 in attorney’s fees

fighting Ms. Espinosa-Trujillo and systematically dragging out the appeal process for a

period of almost a year following its original decision.

g. Yet when the matter finally came to hearing on the merits, and after Ms.

Espinosa-Trujillo went to the trouble and expense of preparing and presenting at the

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hearing with an attorney and seven witnesses, DOH—in a final, desperate move to avoid

the merits—unilaterally withdrew the suspension and thus deprived the Administrative

Law Judge of authority to proceed on the merits. The DOH formal withdrawal of the

suspension was dated October 3, 2014 – just a few weeks shy of a year after DOH began

the process against Ms. Espinosa Trujillo with an October 24, 2013 Notice of Corrective

Action.

38. On such bases, Defendant committed retaliation in violation of New Mexico

Statutes §10-16C-3.

39. Under New Mexico Statutes §10-16C-4, Defendant is liable to Ms. Espinosa-

Trujillo for amounts including actual damages, two times the amount of back pay, special

damages including employee benefits, mental and emotional distress, and resulting medical

expenses, litigation costs including but not limited to expert fees, and reasonable attorney fees.

PUNITIVE DAMAGES

40. While harassing, discriminating, and retaliating against Ms. Espinosa-Trujillo,

Defendant acted in bad faith, recklessly, dishonestly, maliciously, willfully, and/or wantonly.

Thus, punitive damages are appropriate to punish defendants and to deter others from the

commission of like offenses.

PRAYER FOR RELIEF

41. WHEREFORE, Ms. Espinosa-Trujillo respectfully demands:

A. Judgment in favor of herself and against Defendant, awarding her general

and compensatory damages, including but not limited to double her back pay, special

damages including employee benefits, mental and emotional distress, and resulting

medical expenses;

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B. Judgment awarding punitive damages;

C. Judgment awarding the costs and reasonable attorney fees incurred in

prosecuting this action; and

D. Any other relief to which she may be entitled.

JURY DEMAND

42. Plaintiff Amber Espinosa-Trujillo hereby demands trial by jury on all issues so

triable.

Respectfully Submitted, -Electronically filed & signed- Attorney Trent A. Howell 1600 Lena Street, Suite C-29 Santa Fe, New Mexico 87505 www.trentahowell.com trent@trentahowell.com (505) 919-9158 Counsel for Amber Espinosa-Trujillo