Lipe v. Albuquerque Public Schools et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TATIA LIPE,
Plaintiff,
v. Civ. No. 23-899 GBW/JMR
ALBUQUERQUE PUBLIC
SCHOOLS,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT AND IN THE ALTERNATIVE, FOR RULE
56(G) FINDINGS
THIS MATTER comes before the Court on Plaintiff’s Motion for Partial Summary
Judgment and in the Alternative, for Rule 56(g) Findings as to Material Facts Not
Genuinely in Dispute. Doc. 231. Defendant filed a response in opposition. Doc. 257.
Plaintiff filed a reply. Doc. 262. For the reasons explained below, the motion will be
GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This action was filed on October 13, 2023. Doc. 1. All claims arise out of
Plaintiff’s experiences as an employee of Albuquerque Public Schools (“APS”). As
relevant to this motion, Plaintiff alleges that APS discriminated against her by failing to
make reasonable accommodations for her disability under the Americans with
Disabilities Act (“ADA”). Id. at 5.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 1 of 15

2
Plaintiff filed the present motion on March 16, 2026. Doc. 231. In it, she argues
for the Court to grant summary judgment on her ADA failure to accommodate claim, or
alternatively for the Court to enter an order that certain material facts relating to all her
claims are not genuinely in dispute under Fed. R. Civ. P. 56(g). Id. at 2. Defendant filed
a response on April 6, 2026, arguing, as relevant here, that (1) Plaintiff’s exhibits should
not be considered as they constitute inadmissible hearsay and several exhibits were not
properly authenticated; (2) she failed to state a prima facie case under the ADA; (3) her
motion included an implicit request to amend her complaint regarding a new “FMLA
Interference Claim”; and (4) the material facts at the center of her Rule 56(g) claim were
in dispute. See generally doc. 257. Plaintiff filed a reply on April 16. Doc. 262. For the
purposes of judicial economy, the Court will only address the arguments necessary to
resolve the present motion.
II. UNDISPUTED FACTS
Based on the parties’ briefing and the record as a whole, the Court finds the
following material facts are undisputed for the purposes of summary judgment:1
1. Plaintiff was employed by APS as a licensed school social worker and
assigned to Volcano Vista High School. PUMF 1.
1 “PUMF” refers to Plaintiff’s Undisputed Material Facts. Doc. 231 at 7-14. “UMF” refers to Defendant’s
Additional Undisputed Material Facts. Doc. 257 at 12-13. Where the Court cites one of the parties’
material facts, it does so pursuant to Rule 56(e)(2) because the fact in question was not specifically
disputed. See Fed. R. Civ. P. 56(e)(2). Where the Court cites to evidence in the record, it does so pursuant
to Rule 56(c)(3), which permits consideration of “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 2 of 15

3
2. As a school social worker, Plaintiff provided counseling and related services
to students receiving special education services under individualized
education programs (“IEPs”). PUMF 2.
3. As a school social worker, Plaintiff was also (1) responsible for adhering to
the APS Suicide Prevention Protocol which specifically requires that a school
social worker ensures that a student who has expressed suicidal ideations is
never left alone; (2) required to monitor the student the entire time while the
employee secures assistance; (3) responsible for ensuring parent participation
in the student’s educational placement through home visits; and (4) required
to maintain accurate and complete documentation as required by law, state
directives, district policy, and administrative regulations. UMF 1-4.
4. Plaintiff’s functions were to be performed indoors in a normal school or office
environment and in students’ homes. UMF 5.
5. On February 7, 2022, Plaintiff filed a formal complaint with the New Mexico
Public Education Department (“PED”) regarding special education
compliance at Volcano Vista High School. Doc. 231-18 at 1.
6. On April 14, 2022, PED issued findings and required corrective action relating
to Plaintiff’s complaint. Id.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 3 of 15

4
7. In August 2022, Plaintiff requested an ADA accommodation to work
remotely during medically supported flareups of her underlying medical
condition.2 PUMF 12-13.
8. On September 21, 2022, APS convened an ADA interactive-process meeting
with Plaintiff and APS representatives regarding Plaintiff’s accommodation
request. PUMF 14.
9. That same day, APS provided Plaintiff with an Employee Temporary
Accommodation Plan. The Accommodation Plan did not allow Plaintiff to
work remotely during flareups, but included measures related to temperature
regulation and referred her to Intermittent Leave as provided by the Family
Medical Leave Act (“FMLA”) and the Sick Leave Bank. Doc. 257-1 at 12.
10. Plaintiff refused to sign the Accommodation Plan. Id.
11. On September 25, 2022, after APS denied her preferred accommodation,
Plaintiff filed a formal complaint with Equal Opportunity Services (“EOS”).
Doc. 127-2 at 1-2.
2 Defendant objects to this fact as “inadmissible hearsay.” Doc. 257 at 6. This objection is without merit.
While the specifics of what was said in the ADA accommodation request could constitute hearsay, the
fact that Plaintiff requested an ADA accommodation is an act with independent legal significance.
Further, Defendant does not dispute that a meeting was later held regarding Plaintiff’s ADA
accommodation request. Id. at 7. Since this fact was not properly objected to, the Court will consider it
undisputed for purposes of this motion.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 4 of 15

5
12. The EOS findings letter states that Plaintiff’s allegations were unsubstantiated
and describes the investigation steps and information relied upon. Id.; PUMF
53.3
13. On October 5, 2022, APS provided written authorization for Plaintiff to take
intermittent FMLA leave for the period of August 15, 2022, through August
13, 2023. Doc. 265-3.
14. On February 28, 2023, Plaintiff reported to work and found that she had no
students assigned to her caseload.4 PUMF 43.
15. APS retained an independent investigator / attorney on March 9, 2023, to
review Plaintiff’s use of intermittent leave during the 2022 and 2023 school
years. UMF 9.
16. Plaintiff took a year long unpaid leave from March 27, 2023, to March 26,
2024. Doc. 265-5 at 1.
17. Plaintiff resigned from APS on April 8, 2024. UMF 10.
3 Defendant objects to Plaintiff’s statement as “inadmissible hearsay” but also states that the material fact
is not disputed. Doc. 257 at 11. The Court will therefore consider it undisputed for purposes of this
motion.
4 Although Defendant objects to Plaintiff’s statement as hearsay and the exhibit as incomplete, Defendant
does not object to the fact that students were removed from Plaintiff’s caseload. Doc. 257 at 10.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 5 of 15

6
III. LEGAL STANDARDS
a. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), the Court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears the initial burden of showing “that there is an absence of evidence to
support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
non-moving party is then required to designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); see also Celotex, 477 U.S. at 324. “An issue is ‘genuine’ if
there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way. An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848,
851 (10th Cir. 2003) (internal citations omitted).
In applying this standard, the Court must draw all “reasonable inferences” in
favor of the non-moving party. Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th
Cir. 1998). Summary judgment is appropriate only “where the record taken as a whole
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 6 of 15

7
could not lead a rational trier of fact to find for the non-moving party.” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
b. Reasonable Accommodations Under the ADA
The ADA prohibits discrimination against “a qualified individual” with a
disability because of that disability. 42 U.S.C. § 12112(a). Discrimination under the
ADA includes “not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual…unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” Id. § 12112(b)(5)(A). Accordingly,
Plaintiff must show that (1) she is disabled, (2) she is “otherwise qualified,” and (3) she
requested a plausibly reasonable accommodation. Punt v. Kelly Servs., 862 F.3d 1040,
1050 (10th Cir. 2017). Once Plaintiff has established her prima facie case, an employer
must present evidence either “(1) conclusively rebutting one or more elements of
plaintiff’s prima facie case or (2) establishing an affirmative defense, such as undue
hardship or one of the other affirmative defenses available to the employer.” Punt, 862
F.3d at 150 (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999).
To determine whether a person is a “qualified individual” under the ADA, the
Court must determine whether the individual can perform the essential functions of the
job. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003) (citation omitted).
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 7 of 15

8
If not, the Court determines whether any reasonable accommodation by the employer
would enable the employee to perform those functions. Id. (citation omitted).
A reasonable accommodation “may include…job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations.” 42 U.S.C. § 12111(9).
IV. ANALYSIS
a. Issues of Authentication and Hearsay
As a threshold matter, the Court notes APS’ argument that Plaintiff’s Motion
relies on inadmissible hearsay and unauthenticated documents that cannot be
considered at the summary judgment level. Doc. 257 at 13-15. In resolving the motion,
the Court only considers documents it concludes have been properly authenticated and
that can be presented in an admissible form at trial. See Fed. R. Civ. P. 56(c)(2), (4).
b. Plaintiff Has Failed to Establish That There Are No Genuine Issues
of Material Fact
The relevant evidence, viewed in the light most favorable to Defendant, does not
demonstrate an absence of genuine issues of material fact.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 8 of 15

9
1. There is a Genuine Issue of Material Fact Over Whether
Plaintiff’s Requested Accommodation was Reasonable
As part of her prima facie case, Plaintiff must show that she requested a
plausibly reasonable accommodation. Punt, 862 F.3d at 1050. The phrase “reasonable
accommodation” refers to accommodations that “presently, or in the near future, enable
the employee to perform the essential functions of h[er] job.” Aubrey v. Koppes, 975 F.3d
995, 1007 (10th Cir. 2020) (citation omitted). Whether an accommodation is reasonable
is a mixed question of law and fact. Osborne v. Baxter Healthcare Corp., 798 F.3d 1260,
1267 (10th Cir. 2015). To state a “plausibly reasonable” accommodation, a Plaintiff
“need only show that an accommodation seems reasonable on its face,” id. (citation
omitted), however, a proposed accommodation is not reasonable on its face if it would
not enable the employee to perform the essential functions of her job. See 29 C.F.R. §
1630.2(o)(1)(ii).
Plaintiff requested to work remotely during medically verified flareups and
asserts that this accommodation is indisputably reasonable in part because “other
related-services providers received remote-work accommodations during the same
period.” Doc. 231 at 1. However, Defendant claims that “no social workers received
ADA accommodations to work remotely during 2019 to the present,” doc. 257 at 8, and
asserts that remote work was not a reasonable accommodation given the essential
functions of Plaintiff’s position. Id. at 17; see doc. 257-1 at 1-5. For example, though not
mentioned in Defendant’s response brief, a rationale regarding the accommodation’s
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 9 of 15

10
reasonableness that APS submitted to the Equal Employment Opportunity Commission
(“EEOC”) is persuasive: “[i]f the student’s social worker was remote, the student would
have to still be monitored by a staff person while they were in a private location at the
school to meet with their social worker. It is not reasonable to have another staff person
present with a student receiving social work services.” Doc. 231-4 at 2.
Because there is a clear dispute over whether Plaintiff could have performed the
essential functions of her role while working remotely, there is a genuine issue of fact
regarding the reasonableness of Plaintiff’s requested accommodation. Consequently,
summary judgment is precluded at this stage of the litigation. Penry, 155 F.3d at 1261
(summary judgment is appropriate only “where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”).
2. There is a Genuine Issue of Material Fact Over Whether
Plaintiff’s Granted Accommodations Were Unreasonable
Similarly, Plaintiff has not demonstrated that there is no genuine issue of
material fact regarding whether the accommodation offered to her by APS was
inherently unreasonable. The ADA requires employers to provide qualified individuals
with reasonable accommodations that enable the employee to do their “particular job.”
West v. New Mexico Tax’n & Revenue Dep’t, 757 F. Supp. 2d 1065, 1118 (D.N.M. 2010)
(quoting Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir. 2010)); Aubrey, 975 F.3d at
1007. The ADA does not require an employer to provide an employee’s preferred
accommodation. Selenke v. Med. Imaging of Colorado, 248 F.3d 1249, 1263 (10th Cir. 2001).
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 10 of 15

11
Plaintiff claims that APS’ accommodation was not reasonable solely because
“[d]irecting an employee toward leave is not equivalent to providing a reasonable
accommodation that enables continued work where feasible.” Doc. 231 at 19. Plaintiff
cites no case law in support of this assertion and overlooks the fact that courts in the
Tenth Circuit have found that a request for leave may be considered a reasonable
accommodation if the leave is for a sufficiently definite period of time. See, e.g., Cisneros
v. Wilson, 226 F.3d 1113, 1129-30 (10th Cir. 2000). This argument also ignores the fact
that the proposed temporary accommodation plan included additional
accommodations regarding temperature control. Doc. 257-1 at 12.
Complicating the Court’s reasonableness analysis is that it is not clear what
accommodations could be required for Plaintiff’s disability, or what her disability is. It
is evident from the record that Plaintiff’s disability causes pain, impacts certain
musculoskeletal functions, requires intermittent medical intervention, makes it difficult
for Plaintiff to regulate her body temperature, and can “flare up” sporadically. Doc.
231-15 at 2-3. However, without more evidence, the Court cannot say with certainty
that Defendant’s proposed accommodation plan was unreasonable as a matter of law.
Accordingly, the Court finds that there is a genuine issue of material fact regarding the
reasonableness of APS’ granted accommodation that must be resolved by a factfinder.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 11 of 15

12
3. There are Genuine Issues of Material Fact Regarding
Plaintiff’s Retaliation Claims
Plaintiff’s motion for summary judgment primarily focuses on her failure to
accommodate claim, however, she also requests partial summary judgment on her
“FMLA interference claim,” Rule 56(g) findings pertaining to her “ADA retaliation
claim,” Rule 56(g) findings narrowing her defamation claim, and Rule 56(g) findings
pertaining to her whistleblower claim. Doc. 231 at 25-26.
Plaintiff did not plead an FMLA interference claim, see generally doc. 1, so the
Court will not address it. Further, Rule 56(g) findings are not appropriate for Plaintiff’s
claims regarding FMLA leave as there are genuine issues of material fact surrounding
Plaintiff’s use of FMLA leave and APS’ accounting of said leave. See, e.g., PUMF 35-36;
doc. 257 at 9. The Court will also not address Plaintiff’s defamation claim as it has been
dismissed. See doc. 290. Regarding claims for retaliation under the ADA5 and the New
Mexico Whistleblower Protection Act (“NMWPA”), the Court finds that Rule 56(g)
findings are inappropriate for many of Plaintiff’s material facts. See doc. 231 at 24-25;
doc. 262 at 16. However, there are certain facts that the Court will deem as established
for the purposes of this litigation.
5 While Plaintiff does not use the term “retaliation” in her ADA claim, see doc. 1 at 5-6, she does reference
“Acts of Harassment” that the Court understands as alleged retaliation.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 12 of 15

13
i. ADA Retaliation Claim
Plaintiff states that she “engaged in protected activity by requesting an ADA
accommodation and opposing disability discrimination” and asks that the court issue
“findings establishing protected activity and the objective chronology.” Doc. 231 at 22.
It is unclear exactly what Plaintiff means by “objective chronology.” The Court
may make reasonable inferences given Plaintiff’s references to PUMFs 12–22 and 24–48,
however, whether to grant a request to deem facts as established under Rule 56(g) falls
within the sound discretion of the Court. See 10B Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure § 2737 (4th ed.). Because it is not
abundantly clear what Plaintiff means by “objective chronology,” the Court will decline
to find it established under Rule 56(g). However, the Court will find as established that
Plaintiff made an ADA accommodation request.
ii. Whistleblower Claim
Plaintiff does not include much information in the motion regarding her
whistleblower claim. See generally, doc. 231. She only requests that the court find (1)
that a PED report existed and required corrective action on the part of Volcano Vista
High School; (2) APS’ knowledge of the PED complaint; and (3) the sequence and
timing of APS’ accommodation denial, subsequent escalation, leave-related issues and
investigation activity, and caseload removal. Id. at 15-16. The Court finds that there are
issues of fact that preclude Rule 56(g) findings regarding all the requested relief except
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 13 of 15

14
for the facts that (1) Plaintiff submitted a report to PED and (2) her student caseload was
removed.6
V. CONCLUSION
For the foregoing reasons the Court finds that there are genuine disputes of
material fact that must be resolved by a factfinder. Penry, 155 F.3d at 1261.
Accordingly, Plaintiff’s request for summary judgment is DENIED. However, the Court
finds that some material facts contained in the motion are not genuinely disputed.
Accordingly, the Court finds the following facts undisputed and established in the case:
1) Plaintiff requested an ADA accommodation in August 2022 that included
intermittent work from home during medically supported flareups.
2) APS issued a temporary accommodation plan in September 2022 that did not
grant intermittent remote work, but included measures related to
temperature regulation and referred her to Intermittent Leave as provided by
the FMLA and the Sick Leave Bank.
3) On February 7, 2022, Plaintiff filed a formal complaint with the New Mexico
PED regarding special education compliance at Volcano Vista High School.
4) Plaintiff’s student caseload had been removed by February 28, 2023.
6 There is a genuine issue of material fact as to why students were taken off Plaintiff’s caseload, but not the
fact that they were taken off her caseload. Doc. 257 at 10.
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 14 of 15

15
IT IS SO ORDERED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
Case 1:23-cv-00899-GBW-JMR Document 329 Filed 06/03/26 Page 15 of 15