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Kitchell v. Public Service Co. of New Mexico12/3/1998
{1} This interlocutory appeal raises three issues relating to the termination of the employment of plaintiff-appellee Lee Roy Kitchell with defendant-appellant Public Service Company of New Mexico ("PNM"). The issues concern each of three counts in Kitchell's complaint, and the denial by the trial court as to each count of PNM's motion for summary judgment. The complaint presents these legal arguments: 1) that an employee, totally disabled by a work-related injury , can be considered "otherwise qualified" to work and therefore bring an employment discrimination suit under the New Mexico Human Rights Act, NMSA 1978, § 28-1-7(A) (1995); 2) that an employer who is self-insured for workers' compensation and who maintains a self-funded health indemnity plan for employees is subject to suit under the New Mexico Unfair Insurance Practices Act, NMSA 1978, §§ 59A-16-1 to -30 (1984, as amended through 1997); and 3) that an action for prima facie tort is possible where an employer terminates an employee and stops his health benefits because the employee is disabled due to a job -related injury. We reverse the trial court as to all three counts.
{2} Kitchell had been a power plant mechanic at PNM's San Juan Generating Station. After being employed for eight and a half years, on April 6, 1989, he was hospitalized with severe eczema contracted as a result of the working conditions at his job . From the time of his disability, Kitchell has received social security benefits and workers' compensation. On August 9, 1991, he filed a workers' compensation claim for permanent total disability benefits. He also received benefits under PNM's self-funded health indemnity plan from the time of his disability until March of 1992, when his employment was terminated. His complaint is based on the alleged wrongfulness of the termination of these company health benefits.
{3} "The extreme remedy of summary judgment must be used with caution." . "Where there is a question as to any issue of material fact, summary judgment is inappropriate." Id. "In reviewing the grant or denial of summary judgment, this Court considers the undisputed facts, and determines whether under those facts summary judgment was proper as a matter of law." Id.
{4} Count I of Kitchell's complaint alleges that he was discharged and his health benefits terminated in violation of the Human Rights Act, Section 28-1-7, which provides in relevant part:
"It is an unlawful discriminatory practice for: A. an employer, unless based on a bona fide occupational qualification, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition . . . ." (Emphasis added).
Kitchell claims he was discharged and discriminated against because of his physical handicap/serious medical condition when his employment and health benefits were terminated because of the total disability he incurred on the job . PNM claims he is not "otherwise qualified" as required because he is totally disabled. Furthermore, PNM points out that Kitchell has claimed total disability for purposes of receiving workers compensation (and, apparently, social security ) and is therefore judicially estopped from claiming that he is "otherwise qualified" under the Human Rights Act. Kitchell counters that an employer should not be permitted to essentially cause the disability of a worker and then be allowed to cut off health benefits.
{5} In the typical employment discrimination case, the plaintiff has th
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