Professional Documents
Culture Documents
2014.12.19 Complaint For Whistleblower Protection (Endorsed)
2014.12.19 Complaint For Whistleblower Protection (Endorsed)
AMBER ESPINOSA-TRUJILLO,
Plaintiff,
vs.
No.
D-101-CV-2014-02627
From August 2010 through October 2, 2014, Ms. Espinosa-Trujillo was Bureau
Chief of the States DOH Health Facility Licensing & Certification Bureau (HFL&C).
2.
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.
disabling HFL&C, refusing to hire full-time employees for at least half of its 50+ budgeted fulltime 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.
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-Trujillos 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.
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, its 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 Martinezs 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
14.
This action is brought under and for redress of Defendants violations of the
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.
17.
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
including:
a. State Licensure
b. Federal Certification
c. Long Term Care
d. Medical Care
e. Clinical Laboratory Improvement
f. Complaint Investigations
4
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&Cs State Licensure Program affects two critical areas of health care service
delivery:
a.
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.
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&Cs Federal Certification Program ensures that long-term care licensed and
certified facilities (i.e., nursing homes) meet the established standards for health and safety.
24.
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.
assure that:
28.
a.
b.
c.
The unlawful employment practices alleged herein were committed in, directed
by Defendant to, and arise from Ms. Espinosa-Trujillos employment in Santa Fe County, New
Mexico, thereby conferring jurisdiction and venue over the parties and subject matter hereto in
this Court.
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
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.
c.
b.
c.
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.
(including but not limited to CMS) information about such unlawful and improper acts;
b.
as part of an investigation, hearing or inquiry into such unlawful and improper acts; and
c.
36.
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.
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.
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, DOHin a final, desperate move to avoid
the meritsunilaterally 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.
Statutes 10-16C-3.
39.
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.
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.
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.
C.
42.
triable.
Respectfully Submitted,
-Electronically filed & signedAttorney 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
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