Smith vs New Mexico Department of Health

STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT No. D-0101-CV-2011-03691 JENNIFER SMITH Plaintiff, v.

NEW MEXICO DEPARTMENT OF HEALTH Defendant.

PLAINTIFF’S FIRST AMENDED COMPLAINT FOR VIOLATION OF THE WHISTLEBLOWER PROTECTION ACT, RETALIATION PURSUANT TO THE NEW MEXICO HUMAN RIGHTS ACT, AND RETALIATION IN VIOLATION OF THE FRAUD AGAINST TAX PAYER ACT (CORRECTED)

COMES NOW Plaintiff, Jennifer Smith, and as her complaint states as follows: I. 1.

INTRODUCTION

This complaint involves ongoing harassment and retaliation of Jennifer Smith

(“Smith”) from her employers in response to the serious issues she brought to the attention of the Defendant New Mexico Department of Health (“DOH”) about the mismanagement of HIV Services Program’s federal and state funding, including the misallocation of funds to reimburse providers who subsequently went unpaid, and the hostile work environment created by Diane Tapia (“Tapia”), HIV Services Program Manager, that went unchecked after Smith notified officials of funding and mismanagement of the program.

After Smith reported numerous

financial indiscretions and complained about a hostile work environment, she has been subjected to threats, privacy violations, prejudicial treatment and continued retaliatory actions which hinder her ability to perform her basic job duties. Smith continued her advocacy with HIV 1

Services Program throughout 2006 and 2012 and most recently on June 9, 2012. As a result, Smith was dismissed from her position with DOH on July 27, 2012 in retaliation for her ongoing advocacy and ongoing reports of fiscal malfeasance to her federal regulator.

II.

PARTIES

2.

Plaintiff, Smith, is a resident of Santa Fe County, New Mexico.

3.

Defendant, New Mexico Department of Health, is a state agency with its principal

place of business located in Santa Fe County, New Mexico.

III. 4.

JURISDICTION

Jurisdiction is asserted pursuant to NMSA 1978, 39-3-11; 10-16C-1 et seq.; 28-1-

1 et seq., and NMSA 1978, 44-9-11.

IV. 5.

GENERAL ALLEGATIONS

Plaintiff, Smith, began her employment with the New Mexico Department of

Health (“DOH”) in November 2006 in the HIV Services Program. Smith’s job performance has been rated as satisfactory or better since her hire with DOH. 6.

Beginning in November 2006 through April 2011, Smith reported mis-

management of funds by Tapia, as well as a hostile work environment caused by Tapia.

7.

Smith complained about Tapia’s mistreatment and failure to address her

complaints. Starting in November 2006, Smith reported financial discrepancies and budgetary problems to Daryl Smith (“Daryl Smith”), Infectious Disease Bureau Chief, Robert Horwitz (“Horwitz”), Deputy Director of Finance, Daniel Jacobs (“Jacobs”), Director of Human Resources, Jane Peacock (“Peacock”), Deputy Director of Programs, Gayle Kenny (“Kenny”), Infectious Disease Bureau Chief, Angela Hines (“Hines”), Human Resources Manager, and Annette Wilder (“Wilder”) Human Resources.

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8.

Based on information and belief, Tapia’s ability to perform her job function as the

Program Manager for the HIV Services Program was known to the individuals described in paragraph 7.

9.

Despite DOH’s knowledge and/or notice of Tapia’s poor management skills and

poor management of the HIV Services Program, DOH did not take action to address Smith’s complaints. As a result, the providers with the HIV Services Program were not compensated for work performed in June 2008 in the amount of $81,741 and again in June 2009 in the amount of $316,941.

10.

Because of Smith’s complaints and Tapia’s failures to address budgetary issues

and program enrollment, a multi-year federal audit was ordered in January 2011.

11.

DOH knew that Smith provided documents and budget information to the federal

auditors about fiscal irregularities in the HIV Services Program throughout 2008, 2009, 2010, and 2011.

12.

From November 2006 through November 2008 requests for supervisory transfer

were made to Daryl Smith. Beginning in November 2008 Smith began to press the chain of command for a change of supervisor from Tapia to another individual.

Smith provided

numerous examples to her chain of command about Tapia’s hostility, threats and use of profanity, including calling Smith a “fucking idiot” and “fucking monkey.” Tapia made verbal outbursts and threats to Smith on a daily basis also removing job duties and manipulating Smith’s leave requests.

Tapia’s comments and threats were made to Smith after Tapia

discovered Smith had reported issues in the HIV Services Program due to Tapia’s program mismanagement.

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13.

When Tapia discovered Smith had reported management issues up the chain of

command, Tapia’s actions became more threatening and hostile. Tapia threatened Smith that she would “fucking kill her” or fire her. Although Smith reported these threats to the DOH chain of command, no investigation or action was taken in response. Tapia remained Smith’s direct supervisor until January 2011.

14.

Smith also filed complaints about Tapia’s treatment of other employees and

program providers in the HIV Services Program based on her observations of Tapia misapplying FMLA policy, using profane language and violations of state policy.

15.

Smith complained that Tapia was not properly administering the HIV Services

Program budget. As a result, Tapia was unable to provide the DOH Grant Management Bureau budgetary information related to time-sensitive federal reporting.

Any time Smith tried to

provide assistance to Tapia with budget information, Tapia continued her verbal assault on Smith in response.

16.

As a result of Tapia’s failures, the program budget was inaccurate and incomplete

in federal, state and revenue funding sources. Smith reported the budgetary issues to her chain of command. The DOH took no action related to Smith’s complaints regarding Tapia beginning in November 2006 through the present day regarding budgetary discrepancies, eligibility, and funding requirements in the HIV Services Program.

17.

In December 2006, Smith reported that Tapia was not providing instructions and

had not filed required reports with the federal grant administrators. Smith complained the ADAP quarterly report had not been not properly prepared and the IAP programs were not properly monitored. During the time Smith’s position had been vacant, Tapia had not monitored client eligibility in appropriate programs, costing the state $453,000 in potential revenue dollars for 4

that fiscal year. In April 2007 Smith also reported that Tapia had not submitted required requests for medication rebates costing the program $150,000 in potential revenue rebate dollars. Tapia denied Smith’s allegations, and continued to berate Smith’s job performance.

18.

From November 2006 forward, Smith reported numerous budgetary issues, policy

infractions, and hostile work environment claims to Bureau Chief, Daryl Smith. Smith continued to request a transfer to a new supervisor. The DOH took no action related to the review of Smith’s claims against Tapia, and Tapia remained Smith’s supervisor.

19.

During the same time period, through September 2009, Smith reported numerous

budgetary issues, policy infractions, and hostile work environment claims to Horwitz. Horwitz was the Deputy Director at the time, in the Public Health Division. Rather than reporting the complaints to the federal grant administrators and up his chain of command, Horwitz instead required Smith to report any issues she had with Tapia’s behaviors, as well as the budgetary issues, to him directly. Horwitz acknowledged to Smith that Tapia had a reputation of hostile behavior towards employees that had gone on unaddressed for years. Smith again requested a transfer, and Horwitz denied her requests.

20.

Beginning in July 2007, Smith continued to report budgeting issues in the HIV

Services Program related to the amount allocated for pharmacy medication purchases. As a result of Tapia’s inability to properly budget money for the HIV Services Program, the program had insufficient funds to purchase HIV medications.

21.

In July 2008, Horwitz directed Tapia to provide him with a full accounting of

provider agreements related to the HIV Services Program. Smith was involved in this process between Horwitz and Tapia.

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22.

In September 2008, Smith attempted to explain to Tapia errors in how Tapia was

allocating the budget for this program. In response, Tapia grabbed budget papers, shoved them into Smith’s face, and stated “this is not my budget, Jennifer. This is a piece of paper.” Tapia then slammed the papers onto the table and stormed out of the suite.

23.

Smith again reported this incident and her concerns through her chain of

command. The DOH took no action regarding Smith’s complaints.

24.

Through the fall of 2008 and continuing through 2009, 2010, and 2011, Smith

continuously reported errors in the accounting process that Tapia was using. Tapia did not correct serious budgetary issues in the HIV Services Program. These serious issues include calculation of the program budget, failing to encumber funding to pay providers for services, failing to set up purchase orders to allow providers to be paid timely, and missing federal grant management deadlines related to budget issues.

25.

In November 2008, Smith was approached to provide budget information so the

DOH would not lose federal funding for the HIV Services Program. Smith was assured that her assistance would not be revealed to Tapia. However, Tapia discovered that Smith had been providing assistance. Tapia then threatened Smith that she was going to “fucking kill her” because she reported the issues to the chain of command in the DOH, including Horwitz. In January 2009 Tapia began removing job duties from Smith.

26.

In June 2009, Tapia began manipulating provider encumbrances in order to pay

providers for final invoices for services rendered in May and June 2009. As a result of Tapia’s failure to properly budget, HIV Services Program providers were not paid while $364,000 was left encumbered and unspent in other program areas.

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27.

In June 2009, the DOH was the subject of a federal site visit by federal

administrators. HRSA is the federal funding entity for the DOH HIV Services Program. Before the federal representatives arrived at the DOH, Tapia informed Smith that she was not permitted to speak to any federal representative about any budget issues. During this audit, Horwitz was informed that the DOH was required to immediately spend approximately $300,000 in federal monies in the pharmacy.

Smith discovered this when she received a call from the DOH

pharmacist about this spend-down requirement. The DOH did not use any of these excess funds to correct the program budget and pay providers for work already performed. As of August 2009, Tapia no longer permitted Smith to attend budgetary meetings and limited Smith’s access to budget information.

28.

From March 2009 through January 2011, Smith reported numerous budgetary

issues, policy infractions, and hostile work environment complaints through her chain of command and to DOH Human Resources Jacobs, Peacock, Hines, and Wilder. She again requested to have a new supervisor be assigned to her.

29.

In January 2011, after four years of complaining about her supervisor, Tapia was

finally removed, Smith was temporarily assigned supervision under Kenny and Human Resources from the DOH finally began an investigation related to Smith’s charges.

30.

In March 2010, Tapia altered Smith’s employee evaluation, removing job duties,

removing Smith’s decision making abilities requiring Smith to obtain Tapia’s approval of enrollments and adding duties performed by the program manager. Tapia then claimed Smith suffered from a disability and placed an accommodation in her evaluation related to out of state travel. Smith was forced into a requirement of an accommodation during this time period. Hines and Wilder met with Smith and threatened her with loss of pay and threat of disciplinary action if 7

she did not accept the essential job function related to travel. Smith continuously pointed out that the accommodation was not necessary because she could attend the conference via webinars.

Smith did not want her confidential health care information to be discussed with Tapia due to her concerns about Tapia’s actions and threats to her employment.

31.

Tapia claimed FMLA from April 22, 2010 through July 6, 2010. Upon beginning

FMLA leave, staff discovered Tapia had left end of year budgets in disarray and no guidance for the new fiscal year provider agreements and budgets. In January 2009, Gayle Kenny (“Kenny”) replaced Daryl Smith as the Bureau Chief. In April 2010, Kenny provided two non-supervisory staff members Tapia’s computer passwords. As a result, Smith’s information related to her grievances and medical records were made available. Smith’s private health care information was openly discussed at the DOH, causing her personal embarrassment and violations of privacy.

32.

Throughout the summer and fall of 2010, Smith requested a meeting with the

DOH officials related to hostile work environment, the disclosure of her private health care information, and the fact that she did not want to be regarded as disabled by DOH. DOH officials did not address her complaints until December 2010 when a perfunctory meeting was arranged. Smith was again denied her request to have a new supervisor assigned to her. In January 2011, Smith’s request for supervisory transfer was granted.

33.

In April 2011, Smith was presented with a letter from Human Resources stating

that the investigative finding showed “a need for corrective action in the HIV Services Program.”

Smith was provided with no additional information related to her complaints.

34.

In January 2011, Smith requested from Jacobs information about her private

health care information being disseminated to numerous people through the DOH. Smith did not receive a response back from Jacobs related to this complaint.

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35.

In January 2011, federal auditors Claxton & Company arrived at the DOH to audit

the HIV Services Program for 2005-2006. Before their arrival, Kenny told Smith she did not want Smith speaking to auditors without Kenny being present. Smith spoke with the auditors and provided them with program expenditure and revenue information for current years. In May 2011, Smith was summoned to Kenny’s and Marcela Ortega’s (“Ortega”) office. At that time, Ortega was the Deputy Director of Finance. Ortega asked Smith to explain the information that she had reported to Claxton & Company so Ortega could respond to questions regarding current year financials to the federal auditors.

36.

Tapia claimed FMLA from April 4, 2011 through June 27, 2011. Tapia had not

provided notice of the leave and upon beginning FMLA leave, staff discovered Tapia had again left end of year budgets in disarray and no guidance for the new fiscal year provider agreements and budgets. Also in April 2011, numerous unpaid invoices were discovered in Tapia’s office dating back to January 2011. Tapia had allowed providers to go unpaid for four months. In April 2011, Dan Burke (“Burke”) was assigned as Acting HIV Services Program Manager to replace Tapia. At this time, Smith was then reassigned supervision under Burke. In April 2011, Kenny again provided non-supervisory staff members Tapia’s computer passwords. As a result, Smith’s information related to her grievances and medical records were made available. Smith’s private health care information was again openly discussed at the DOH, causing her personal embarrassment and violations of privacy.

37.

In June 2011, Tapia returned from her FMLA leave. Tapia immediately logged

onto the federal reporting site and changed Smith’s permissions in an effort to block Smith from accessing a required federal report which she was responsible for completing quarterly. In July

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2011, Smith tried to log onto the HRSA website to submit the required quarterly report due on July 31, 2011. Smith’s permissions were blocked.

38.

Smith reported Tapia’s retaliatory actions to Burke and to Kenny. No action was

taken against Tapia for her retaliation. This same pattern repeated in October 2011 when Smith was again unable to log onto the federal reporting website to submit the required quarterly report

by October 31, 2011. As of the date of this complaint, Smith still does not have permission to access this report, even though prior to her complaints she had full access.

39.

In June 2011, Tapia used others at the DOH to continue her threats against Smith.

Another employee walked into Smith’s office and began to verbally assault Smith and stated that they were going to “get” her and “you are fucked”. Smith reported the threat to Kenny and Wilder, but the DOH did not conduct an investigation. In June 2011, Tapia was transferred to the Albuquerque office for assignment to “special projects”. In August 2011, DOH re-assigned Tapia to the HIV Prevention Program.

40.

Tapia’s access to Smith’s personnel file and personal information was not

blocked, despite her transfer in June 2011.

Tapia continued to have access to Smith’s

information until September 1, 2011.

41.

In July 2011, construction on the HVAC system in the Runnels Building was

ongoing. Smith is assigned to this office building. Burke had to reassign employees in the HIV Services Program as a result of this construction. Burke, in order to separate Smith from the rest of the HIV Services Program staff, placed Smith in a substandard passageway between two office suites that was intended to house office equipment. This space had 3 doorways which people used throughout the time that Smith was assigned to this space, and the DOH made no

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provision related to the confidential information that Smith was required to maintain in her position. All other staff were assigned proper offices.

42.

On September 9, 2011, Smith received a final determination from the New

Mexico Human Rights Division related to her complaint of disability discrimination and retaliation against the DOH. 43. management.

To this date, Smith continues to receive differentiated treatment from staff and Smith’s professional reputation has been tarnished as a result of her filing

complaints against Tapia and being persistent with her complaints and the management of the HIV Services Program.

44.

The hostile work environment based on retaliation was severe and pervasive,

causing a material alteration to Smith’s employment.

45.

After Smith filed her Complaint on December 9, 2011, she continued to advocate

for her program, including reporting ongoing financial problems with the HIV/AIDS grant, acts of retaliation from her supervisor, Burke, and as a result DOH issued a Notice of Contemplated Action on June 25, 2012 proposing Smith’s dismissal. In the Notice of Contemplated Action dated June 25, 2012, DOH outline two alleged examples of progressive discipline regarding verbal counseling by Burke to Smith on January 31, 2012 and February 27, 2012.

46.

On December 20, 2011, within days of NMDOH being served notice of court

action, Burke violated State Personnel Board rules and DOH policy when he failed to follow the criteria in place for employee evaluations serving Smith a negative evaluation. Burke was required to review the evaluation criteria in advance and failed to do so. Instead, Burke filled the evaluation with vague comments, misrepresentations and unsupported statements about Smith’s

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work performance. Further, Burke demanded Smith sign the evaluation by December 28, 2011, even though Smith has thirty days to review the document and comment.

47.

Prior to delivering Smith’s evaluation, Burke made statements to other employees

in his charge words to the effect that once he was permanently promoted into the HIV Services Program Manager position, his first act of business would be to fire Smith.

48.

On December 13, 2011, Smith submitted payment from an HIV/AIDS provider

that was rejected because funds were not available. Kenny asked Smith to audit the payment vouchers and Smith discovered that Burke had authorized improper payments to the vendor. The payments were improper because documentation for the expenses were not provided. Burke had the vendor send him the invoices to a confidential fax machine located in his area. During this same time period, DOH discovered Burke was improperly allocating federal monies designated for the purchase of medications, placing the federal funding in jeopardy. Also, Burke had not processed provider agreement amendments in a timely manner leaving providers unpaid. Even with this information, Burke was not disciplined and was permitted to continue to retaliate against Smith.

49.

On January 9, 2012, Smith filed an internal DOH grievance against Burke for

failing to follow the evaluation process. On January 10, 2012, Burke was informed he was not selected for promotion of the HIV Services Program Manager position formerly occupied by Tapia. On January 11, 2012, Kenny rejected Smith’s grievance and ordered Smith to submit it to her current direct supervisor, Burke. Smith was then ordered to attend a meeting regarding her grievance with Human Resources and Burke without the ability to have a representative present.

During the meeting on January 31, 2012, Smith again informed all those present that she was in a hostile work environment due the actions of Burke, provided no supporting documentation for 12

the alleged issues in her evaluation, Smith’s concerns about being set up for further discipline were ignored, and Burke’s refusal to respond to Smith’s questions about his actions were also ignored, which included Burke’s continued contact with HIV/AIDS providers to solicit fraudulent complaints about Smith which had been reported by Smith and other staff members to DOH on numerous occasions.

50.

On February 1, 2012, Smith was required to meet with Peacock and Ortega about

the grievance and the meeting she had with Burke the previous day. Smith again repeated her concerns about Burke creating a hostile work environment due to his retaliatory actions. In addition, Smith informed Peacock and Ortega that Burke was in regular communication with Tapia regarding program issues and staff, provided documentation of her complaints and examples where Burke solicited information against Smith from HIV/AIDs providers. The information about Burke later resurfaced in Smith’s June 26, 2012 dismissal letter.

51.

On January 23, 2012, Smith again informed Kenny that she was blocked from the

HRSA website for the ADAP quarterly reports. Smith’s access was restored the following day with no explanation why the program was off limits to her since being blocked by Tapia in June 2011.

52.

On February 7, 2012 Peacock responded to Smith’s grievance and encouraged

Smith not to pursue the grievance to the next level.

53.

DOH did not take any action to investigate Smith’s complaints of retaliation and

hostile work environment. DOH failed to correct Smith’s evaluation or explain Burke’s negative comments about Smith.

54.

On February 27, 2012, Smith attended a meeting with Burke and Peacock

regarding her evaluation. Smith again repeated her concerns about retaliation, hostile work 13

environment and Burke soliciting complaints about her by providers. Burke took no action to change the evaluation criteria for Smith and DOH took no action regarding an investigation of Smith’s complaints about a hostile work environment due to ongoing retaliation.

55.

On March 6, 2012, Burke received a temporary salary increase for his work in the

HIV Services Program Manager position.

56.

On March 5, 2012, Smith was forced to alter state-wide ADAP policy, changing

enrollment processes due to Burke’s continued solicitation of false complaints from providers in an effort to document Burke’s continued acts of retaliation. Smith’s need to develop a new form caused provider relationships to erode. On April 3, 2012, Smith again had to address another provider complaint that she had handled properly in January 2012. Burke again tried to blame Smith for the alleged issue. It was only after Smith produced the documentation from January 2012 to defend herself from Burke’s continued retaliation and report to DOH, did Burke cease his false complaint. DOH did not take any action to address Burke’s ongoing retaliation against Smith.

57.

Burke was instructed not to participate with issues related to the Truman Street

Pharmacy (“TSP”) in April 2012. Despite this directive, when Burke attended a meeting with DOH officials where Smith was thanked publically for her work, Burke was upset about the praise directed at Smith. Burke became more upset during this meeting when he found out he would not be presenting any information to the Division Director or Cabinet Secretary; Burke became so agitated that he jumped out of his chair and yelled at the meeting participants.

58.

In April 2012, Smith was required to participate in the second selection

committee for the HIV Services Program Manager position. Before the interviews began, Smith expressed her concerns about the limited candidate pool to Kenny. After the interviews, Smith 14

identified her choice for this position as required, but this individual was not offered the job.

Kenny became agitated when Smith told her the person she thought was best, and when Smith inquired why Kenny’s selection was not hired in January 2012 when the individual participated in the first round of interviews. Kenny had pre-selected her choice before the interview process had begun. DOH announced the selection in May 2012 and that the individual would start the HIV Services Manager position on July 9, 2012.

59.

On April 16, 2012, Smith’s coworker informed her that Burke was overheard

soliciting a complaint from a provider against Smith again. Smith’s coworker reported this directly to Kenny. Smith also reported this DOH. In addition, on April 24, 2012 a coworker of Smith’s received a complaint against Burke and reported this to Kenny.

60.

On May 9, 2012, Smith submitted her private health care information to be placed

on intermittent FML due to a serious health care condition.

61.

On May 15, 2012, Smith reported that a provider was not paid and a Purchase

Order (“PO”) in the amount of $39,000.00 in federal funding was unspent due to Burke’s mismanagement. Smith reported this information and when a response was not received and no action taken, Smith again reported this to Peacock, Kenny and Ortega on June 7, 2012.

62.

On June 1, 2012, a coworker again reported to Smith that Burke was discussing

employees with Tapia and stated Burke was planning on “filling in the new program manager on Smith”.

63.

On June 9, 2012, Smith reported Burke’s mismanagement of the current year’s

federal funding to the federal regulator, HRSA. Smith reported to HRSA Burke’s improper transfer of federal dollars in the program and the unpaid provider. The HIV/AIDS program requires all federal dollars to be spent by March 31, 2012 and to follow detailed federal 15

guidelines on spending. Burke spent less than the amount allocated to this program on recipients for AIDS/HIV program services and mis-spent federal funding on providers.

64.

Burke did not promptly answer Smith’s requests for information and for approval

of leave. Smith had to seek assistance from Burke’s supervisor so that her leave was approved timely. Burke did not approve Smith’s leave requests for medical appointments even though Smith was approved for intermittent FML. 65.

On June 26, 2012, Smith was placed on paid administrative leave and served with

a Notice of Contemplated Action proposing her dismissal. DOH claimed Smith was insubordinate for failing to attend a meeting with the DOH pharmacy at Burke’s direction.

66.

According to the Notice of Contemplated Action, Smith received two verbal

counseling sessions with Burke on January 13, 2012 and February 27, 2012. Smith was not suspended, placed on a corrective action or received a written letter of reprimand. DOH failed to follow the steps of progressive discipline as provided under State Personnel Board rules.

67.

Smith was dismissed from her position with DOH on July 27, 2012 in retaliation

for her ongoing advocacy and ongoing reports of fiscal malfeasance to her federal regulator.

COUNT I VIOLATION OF WHISTLEBLOWER PROTECTION ACT 68.

Plaintiff re-alleges and incorporates herein by reference the allegations contained

in Paragraphs 1 through 67 above as if set forth hereafter in detail.

69.

The Whistleblower Protection Act provides that public employers should not take

any retaliatory actions against a public employee because the public employee has communicated to the employer information about an action or failure to act that the public employee believes in good faith constitutes an unlawful or improper act, or because the public 16

employee objects to or refuses to participate in an activity or policy or practice that constitutes an unlawful act. Smith engaged in protected and oppositional activity during her employment, as described fully in this complaint, with DOH, including reporting fiscal improprieties to Claxton and Company on January 31, 2011 and to HRSA on June 9, 2012.

70.

Smith has been harassed and retaliated against as a result of her complaints filed

against certain DOH employees regarding mismanagement of the HIV Services Program funding, violations of federal grant guidelines, and privacy violations.

Smith made her

complaints about the HIV Services Program in good faith and DOH did not respond to any of Smith’s complaints about hostile work environment on the basis of retaliation.

71.

DOH did not respond to Smith’s allegations about a hostile work environment

based on retaliation to the time of her dismissal on July 27, 2012. DOH’s acts of retaliation were temporally proximate to her advocacy in reporting fiscal improprieties to HRSA and engaging in protected and oppositional activity with DOH. 72.

As a direct and proximate result of the conduct alleged in this complaint, Smith

has suffered damages. In accord with the Whistleblower Protection Act, Smith is entitled to all relief necessary to make her whole, including compensation for lost double last wages, humiliation, anguish and emotional distress, and other out of pocket losses. Smith is entitled to reinstatement to her former position with all seniority restored. Smith is also entitled to recover her reasonable attorney fees and litigation costs.

WHEREFORE, Plaintiff Jennifer Smith prays for judgment against Defendant Department of Health for compensatory damages, interest as allowed under the Whistleblower Protection Act, for lost wages double in the amount, reinstatement to her position with DOH,

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attorneys fees and costs, all in an amount to be determined at trial, plus such other and further relief as the Court deems just and proper.

COUNT II RETALIATION PURSUANT TO THE NEW MEXICO HUMAN RIGHTS ACT 73.

Plaintiff re-alleges and incorporates herein by reference the allegations contained

in Paragraphs 1 through 72 above as if set forth hereafter in detail.

74.

Smith filed for disability and retaliation pursuant to the New Mexico Human

Rights Act. Smith exhausted administrative remedies on September 9, 2011.

75.

Smith was harassed, retaliated against, and denied employment opportunities as a

result of her complaints against DOH related to being regarding as disabled and having an accommodation placed in her employee evaluation. Despite filing ongoing complaints about her supervision and supervisor, Tapia, DOH failed to take any remedial action designed to stop the retaliatory treatment and hostile work environment.

76.

Smith was the subject of retaliation that was severe and pervasive.

77.

Smith’s work environment was materially altered as a result of her complaints.

78.

As a direct and proximate result of the conduct alleged in this complaint, Smith

has suffered damages.

WHEREFORE, Plaintiff Jennifer Smith prays for judgment against Defendant Department of Health for compensatory damages, interest as allowed by law, attorney’s fees and costs, all in an amount to be determined at trial, plus such other and further relief as the Court deems just and proper.

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COUNT III RETALIATION FOR VIOLATION OF THE FRAUD AGAINST TAX PAYER ACT 79.

Plaintiff re-alleges and incorporates herein by reference the allegations contained

in Paragraphs 1 through 78 above as if set forth hereafter in detail.

80.

NMSA 1978, §44-9-11(b) provides that an employer “shall not discharge,

demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against the employee in the terms and conditions of employment because of the lawful acts of the employee, on behalf of the employee or others, in disclosing information to a government or lawful agency…”.

81.

Smith was harassed, retaliated against, and denied employment opportunities as

result of her complaints against DOH. Smith made her complaints in good faith and to officials who had authority to address the issues within DOH and HRSA. DOH was aware of Smith’s ongoing complaints and providing HRSA with information about DOH’s improper fiscal activity related to the HIV/AIDS grant. DOH failed to take any action regarding Smith’s complaints of retaliation and hostile work environment based on retaliation. DOH dismissed Smith from her position on July 27, 2012 and initiated the disciplinary process within less than 30 days of Smith’s report to HRSA of continued improper fiscal activities.

82.

As a direct and proximate result of the conduct alleged above, Smith has suffered

damages. Pursuant to NMSA 1978, §44-9-1(c), Smith is entitled to all relief necessary to make her whole, including two times the amount of pay she has lost, compensation for humiliation, anguish, and emotional distress, and other out-of-pocket losses. Smith is also entitled to recover her reasonable attorney’s fees and litigation costs.

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WHEREFORE, Plaintiff, Jennifer Smith, prays for judgment against Defendant Department of Health for compensatory damages, reinstatement to her DOH position, interest as allowed by law, attorney’s fees and costs, all in an amount to be determined at trial, plus such other and further relief as the Court deems just and proper.

Respectfully submitted,

/s/ Diane Garrity ___________________________ Diane Garrity Serra & Garrity, PC 440 Cerrillos Road, Suite 4 Santa Fe, NM 87501 505-983-6956 505-982-3771 (fax)

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