Ruby v. Sandia Corp. (699 F. Supp. 2d 1247, 2010)

United States District Court for the District of New Mexico 2010-02-19

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed August 5, 2009 (Doc. 3); and (ii) the Plaintiffs Motion to Remand, filed August 31, 2009 (Doc. 13). The Court held a hearing on December 28, 2009. The primary issues are: (i) whether Defendant Sandia Corporation (“Sandia Labs”) has established a right to remove Plaintiff Doug Ruby’s four state claims to federal court by showing that § 502 of the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (“ERISA”) completely preempts some or all of Ruby’s claims; (ii) whether the Court should convert Ruby’s state-law claims into federal claims under ERISA’s civil-enforcement provisions; and (iii) whether the Court should permit Ruby to amend his Complaint to add additional state and/or federal claims. Because the Court finds that Ruby’s claims under the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 ■ through 28-1-15 (“NMHRA”), for age discrimination and retaliation are based on independent legal duties separate from those ERISA creates, the Court will not convert those claims into federal ERISA claims. Because the Court finds that ERISA completely preempts Ruby’s claims for wrongful termination and prima-facie tort, the Court will convert those claims into a federal claim under ERISA’s civil enforcement provisions. Because complete preemption by ERISA converts the state-law claims into a federal claim upon which relief can be granted, the Court denies Sandia Labs’ motion to dismiss and will grant Ruby leave to amend his Complaint to properly plead his preempted state-law claims as a claim under ERISA’s civil enforcement provision. Because both parties have requested that the Court maintain supplemental jurisdiction if the Court finds complete preemption for some of the claims, the Court will deny the Plaintiffs motion to remand. The Court will also grant Ruby leave to amend his Complaint to add additional state and/or federal claims.

FACTUAL BACKGROUND

For purposes of resolving a motion to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all well-pled facts as true. Accordingly, the Court has relied on Ruby’s Complaint in outlining the facts pertinent to this motion. Sandia Corporation operates the Sandia National Laboratories, a federally owned research facility in Bernalillo County, New Mexico. See Complaint for Damages Arising Under the New Mexico Human Rights Act and New Mexico Common Law ¶ 4, at 4, filed August 5, 2009 (Doc. l-2)(“Complaint”). Ruby, a physicist, accepted employment with Sandia Labs in November 1985. See Complaint ¶ 7, at 4. In 1989, Ruby was promoted to Senior Member of the Technical Staff (“SMTS”), and in 1999, he was promoted to Principal Member of the Technical Staff (“PMTS”). See Complaint ¶¶ 9, 11, at 4. In early 2004, Sandia Labs brought in a new manager, Dr. Jeffrey Nelson, who was assigned as Ruby’s supervisor. See Complaint ¶¶ 16,17, at 5.

At the time Nelson was hired, Ruby’s retirement benefits were close to vesting. S.ee Complaint ¶ 18, at 5. On May 16, 2007, Nelson informed Ruby that he could accept placement on a Performance Improvement Plan (“PIP”) or be terminated from his employment. See Complaint ¶ 21, at 5. Ruby accepted the PIP, and was given tasks such as developing a comprehensive research program for accelerated aging of Thin-Film materials, devices, and systems and developing a concentrating photovoltaic systems research program within sixty days. Ruby did not meet the tasks and was demoted to SMTS in September 2007. See Complaint ¶ 30, at 6. Ruby was placed on another PIP as a SMTS. See Complaint ¶ 33, at 7. Ruby set goals and work assignments for himself, which were Nelson approved, and submitted a twenty-page report to Sandia Labs management documenting his accomplishments and describing how he satisfied the goals set pursuant to the second PIP. See Complaint ¶¶ 35-38, at 7. Ruby subsequently received a letter stating that he had not satisfied the goals under the second PIP. See Complaint ¶ 39, at 7. Sandia Labs terminated Ruby’s employment on January 28, 2008, citing the failure to meet the second PIP as the grounds for termination. See Complaint ¶ 41, at 7. As a result of his termination, Ruby filed a complaint with the New Mexico Human Rights Commission (“NMHRC”) pursuant to the NMHRA. See Complaint ¶ 45, at 8. The NMHRC, in its finding of probable cause, determined that Ruby attempted to meet his PIP requirements, that evidence showed that a younger female employee who was having employment issues was allowed to transfer to another department and Ruby was not offered the same option, and that there was sufficient evidence to believe discrimination occurred. See Complaint ¶ 47, at 8.

PROCEDURAL BACKGROUND

On July 2, 2009, after the NMHRC found sufficient evidence to believe that discrimination had occurred, Ruby filed a Complaint against Sandia Labs in the Second Judicial District Court of Bernalillo County, New Mexico, alleging that Sandia Labs wrongfully discriminated against him based on his age, in contravention of the NMHRA, and engaged in conduct that constituted the common-law torts of wrongful termination and prima-facie tort. See Complaint ¶¶ 59, 68, 74, 76-78, at 9-11. In his Complaint, Ruby raised these causes of actions predicated on the averments that Sandia Labs treated him differently than younger employees to save money and that, but for his age, Sandia Labs would not have treated him unfairly. See Complaint ¶¶ 20, 59, 67 at 5, 9, 10. Ruby alleges that he “was treated less favorably by Sandia management than other younger employees with respect to employment decisions because of his age.” Complaint ¶ 59, at 9.

On August 8, 2009, Sandia Labs filed a Notice of Removal. See Doc. 1. Sandia Labs also filed its motion to dismiss contemporaneously with its Notice of Removal. See Doc. 3. Both Sandia Labs’ Notice of Removal and its motion to dismiss are predicated solely on the argument that ERISA preempts Ruby’s state-law claims. In its motion to dismiss, Sandia Labs argues that the Court should grant its motion because all of Ruby’s claims relate to an employee-benefit plan which ERISA governs, seek benefits which that plan provides, and are, therefore, completely preempted by § 502 of ERISA. Specifically, Sandia Labs argues that Ruby’s Complaint does not allege any other motive for Sandia Labs’ alleged wrongful termination of his employment other than preventing Ruby from receiving a full retirement service pension. See Motion at 2. Sandia Labs relies on: (i) the provision in ERISA which states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title,” ERISA § 514, 29 U.S.C. § 1144(a); and (ii) on the Supreme Court of the United States’ holding in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), in which the Supreme Court held that ERISA preempted the state claims of an employee who had lost his job and sued in state court under various tort and contract theories based on the allegation that the principal reason for his termination was that his pension benefits vested in another four months, were preempted by ERISA. Sandia Labs argues that, because ERISA preempts all four of Ruby’s claims, the Court should dismiss them with leave to amend the state claims into an ERISA claim. See Motion at 7.

On August 31, 2009, Ruby filed his response to Sandia Labs’ motion to dismiss. See Plaintiff Doug Ruby’s Response to Defendant Sandia Corporation’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed August 31, 2009 (Doc. 12)(“Response to Motion to Dismiss”). In his response, Ruby argues that ERISA does not preempt his state-law claims. Ruby relies on the provision in ERISA which states that nothing in ERISA is to be construed so as to “alter, amend, modify, invalidate, impair, or supersede any law of the United States ... or any rule or regulation issued under any such law,” ERISA § 502(d), 29 U.S.C. § 1144(d), and the Supreme Court’s holding in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Ruby contends that the Supreme Court’s holding in Shaw v. Delta Air Lines, Inc. makes clear that state human rights laws are preempted with respect to ERISA benefit plans only insofar as they prohibit practices that are lawful under federal law. Ruby argues that, because the NMHRA’s age discrimination provisions are co-extensive with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 through 634 (“ADEA”), a finding of ERISA preemption as to Ruby’s claims for age discrimination would both “modify” and “impair” the enforcement of rights under the ADEA, and because Ruby seeks to vindicate rights that the ADEA promotes, even though he brought his claims through state-law causes of action, ERISA does not preempt his claims. See Response to Motion to Dismiss at 6. Ruby also contends that his claims do not relate to any employee-benefit plan the ERISA preemption provision contemplates. Ruby argues that Ingersoll-Rand Co. v. McClendon does not apply, because he has asserted claims predicated on laws prohibiting age discrimination, which he contends are laws of general applicability and not dependant on an ERISA plan. See Response to Motion to Dismiss at 14. Ruby contends that his claims have only an incidental impact on any ERISA plan and that such a tenuous connection is insufficient grounds to support a claim of preemption. See Response to Motion to Dismiss at 20.

In its reply to Ruby’s response to the motion to dismiss, Sandia Labs makes a distinction between express preemption and complete preemption. See Defendant Sandia Corporation’s Reply to Plaintiff Doug Ruby’s Response to Defendant Sandia Corporation’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed September 24, 2009 (Doc. 16)(“Reply to Motion to Dismiss”). Sandia Labs argues that the “courts have recognized two types of preemption under ERISA: (1) express preemption under § 1144(a), which occurs when a law ‘relates to’ an employee benefit plan governed by ERISA; and (2) complete preemption, which occurs when the allegations in the complaint give rise to an ERISA cause of action.” Reply to Motion to Dismiss at 2. Sandia Labs argues that complete preemption applies to Ruby’s four state-law claims. Sandia Labs also argues that Ruby’s reliance on Shaw v. Delta Air Lines, Inc. is misplaced, because it addressed express preemption, not complete preemption, and because the plaintiff in Shaw v. Delta Air Lines, Inc. was not asserting a claim based upon alleged conduct that ERISA expressly prohibits, as Sandia Labs contends is the case in the matter before the Court.

Ruby has also filed a motion to remand, requesting that the Court enter an order remanding the case to state court. See Motion to Remand, filed August 31, 2009 (Doc. 13). In the motion to remand, Ruby argued that, because Sandia Labs’ notice of removal is predicated solely on ERISA preemption, and because Ruby contends that ERISA does not preempt his claims, that the Court does not have jurisdiction. See Motion to Remand at 3. In Sandia Labs’ response, it argues that removal was not only proper, but essential, because ERISA completely preempts Ruby’s claims, and because Congress vests exclusive jurisdiction over ERISA violations in federal court. See Defendant Sandia Corporation’s Response to Plaintiff’s Motion to Remand, filed September 24, 2009 (Doc. 18).

In his reply to the motion to remand, Ruby addressed the arguments that Sandia Labs raised in its reply to the motion to dismiss. See Plaintiff Doug Ruby’s Reply to Defendant Sandia Corporation’s Response to Plaintiffs Motion to Remand at 2 n. 1, filed October 19, 2009 (Doc. 21) (“Reply to Motion to Remand”). Ruby argued that his state-law age-discrimination claims do not fall within the ambit of § 502’s civil-enforcement provision. See Reply to Motion to Remand at 4-5. Ruby also argues that, even if his claims are viable under § 502, complete preemption does not apply because his claims arise from an independent legal duty. See Reply to Motion to Remand at 7. Ruby argues that his claims stem solely from the NMHRA, which prohibits an employer from discharging an employee based on his age, see NMSA 1978, § 28-1-7, unlike § 510 of ERISA, which makes it “unlawful ... to discharge ... a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan,” Reply to Motion to Remand at 8.

At the hearing, Matthew L. Garcia, Ruby’s counsel, conceded that Ruby has alleged that part of the reason Sandia Labs terminated Ruby was in an effort to save money, “including denying Dr. Ruby retirement benefits.” Transcript of Hearing at 4:5-7 (taken December 28, 2009)(Garcia) (“Tr.”). He argued, however, that Sandia Labs also had discriminatory motives on the basis of age and retaliatory motives. See Tr. at 3:10-20 (Garcia)(stating that, “but for [Ruby’s] age, he would not have been treated unfairly.”); id. at 30:12-14 (Garcia)(“[The Complaint] tells a story about age discrimination, it tells a story about retaliation, and it tells a story about termination of an employee in order to save money.”). Mr. Garcia contended that Ruby’s claims do not meet both prongs of the test for § 502’s complete preemption. See Tr. at 7:24-8:1 (Garcia). He arg-ued that Sandia Labs’ actions implicated an independent legal duty, and therefore complete preemption is not applicable. See Tr. at 8:8-12 (Garcia). Mr. Garcia conceded that, if ERISA preempts any of Ruby’s claims, § 502 most likely preempts the claims for wrongful termination and prima-facie tort. See Tr. at 8:23-9:1 (Garcia). He asserted that, if the Court finds that ERISA preempts some claims, the Court should still permit Ruby to keep his state NMHRA claims, and that Ruby would like the Court to exercise supplemental jurisdiction over all of the claims, rather than send some claims to state court while retaining the claims that the Court finds ERISA preempts. See Tr. at 10:10-12 (Garcia).

Luis G. Stelzner, Sandia Labs’ counsel, stated at the hearing that Sandia Labs cannot assert jurisdiction under § 514 express preemption in this case. See Tr. at 16:8-11 (Stelzner). Mr. Stelzner explained, however, that Ruby’s claims fall within the scope of § 514 because he is a participant in Sandia Labs’ benefits plan and the Complaint alleges that Sandia Labs interfered with the attainment of his benefits. See Tr. at 22:5-14 (Stelzner). He also argues that Ruby’s claims fall within the scope of § 502’s civil-enforcement provision. See Tr. at 22:22-23:9 (Stelzner).

Mr. Stelzner conceded that, if Ruby’s Complaint had not mentioned his retirement benefits, his claims would not have triggered ERISA preemption. See Tr. at 19:2-13 (Court, Stelzner). He argued, however, that the sole motive alleged in Ruby’s Complaint is Sandia Labs’ desire to save money by denying Ruby retirement benefits and that, although Mr. Garcia argued that Ruby was terminated because of discriminatory motives on the basis of age, such a motive was not pled in the Complaint. See Tr. at 20:10-14 (Stelzner); id. at 23:23-25 (Stelzner). He also argued that, as pled, Ruby’s claims cannot be brought based on an independent legal duty, because he only pled a benefits-defeating motive, which ERISA exclusively covers. See Tr. at 27:11-25 (Stelzner). Like Mr. Garcia, Mr. Stelzner also expressed a strong preference that, if the Court finds that ERISA preempts only some claims, the Court should exercise supplemental jurisdiction over all of the claims. See Tr. at 25:24-26:12 (Stelzner).

LAW REGARDING MOTIONS TO DISMISS

Undér rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (internal citation omitted). “[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1967, 1969). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1974)(alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177. The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1974)(internal citations omitted).

LAW REGARDING REMOVAL

A civil action filed in a state court may be removed to federal court if the claim arises under federal law. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003); 28 U.S.C. § 1441(a). “To determine whether the claim arises under federal law, [the court] examines the ‘well pleaded’ allegations of the complaint and ignore[s] potential defenses[.]” Beneficial Nat’l Bank v. Anderson, 539 U.S. at 6, 123 S.Ct. 2058. “The [well-pleaded-complaint] rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. at 6, 123 S.Ct. 2058.

A defense that relies on a federal statute’s preemptive effect will not provide a basis of removal. See Caterpillar Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425 (“[A] case may not be removed to federal court on the basis of ... the defense of pre-emption.... ”). In Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), the Supreme Court stated:

[A] federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, ... or that a federal defense the defendant may raise is not sufficient to defeat the claim.

463 U.S. at 10,103 S.Ct. 2841.

A state claim may be removed to federal court in only two circumstances— when Congress expressly so provides, or when a federal statute wholly displaces the state-law cause of action through complete preemption. See Beneficial Nat’l Bank v. Anderson, 539 U.S. at 8, 123 S.Ct. 2058. “When the federal statute completely preempts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Beneficial Nat’l Bank v. Anderson, 539 U.S. at 8, 123 S.Ct. 2058. The Supreme Court has recognized complete preemption as to three federal laws: (i) the Labor Management Relations Act, 29 U.S.C. § 185, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); (ii) the National Bank Act, see Beneficial Nat’l Bank v. Anderson, 539 U.S. at 8, 123 S.Ct. 2058; and ERISA, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).

LAW REGARDING ERISA PREEMPTION

ERISA provides a uniform regulatory regime over employee-benefit plans and includes expansive preemption provisions which are intended to ensure that employee-benefit-plan regulation would be “exclusively a federal concern.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981)). See 29 U.S.C. § 1144 (§ 514 of ERISA). Congress “expressly included a broadly worded pre-emption provision” in ERISA. Ingersoll-Rand Co. v. McClendon, 498 U.S. at 138, 111 S.Ct. 478. See Straub v. Western Union Telegraph Co., 851 F.2d 1262, 1263 (10th Cir.1988) (“The scope of ERISA preemption ... is very broad.”). The United States Court of Appeals for the Tenth Circuit has explained that “[i]mportant to understanding the propriety of removing [a case] is the distinction between ‘conflict preemption’ under § 514 of ERISA and ‘complete preemption’ under § 502 of ERISA.” Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1153 (10th Cir.2004).

1. Express Preemption.

Section 514 of ERISA, 29 U.S.C. § 1144, contains an express-preemption provision which provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” that ERISA covers. 29 U.S.C. § 1144(a). The Supreme Court has “observed repeatedly that this broadly worded provision is ‘clearly expansive.’” Egelhoff v. Egelhoff, 532 U.S. 141, 146, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001). The Supreme Court has explained: “The key to § 514(a) is found in the words ‘relate to.’ Congress used those words in their1 broad sense, rejecting more limited pre-emption language.... ” Ingersoll-Rand Co. v. McClendon, 498 U.S. at 138, 111 S.Ct. 478. “But at the same time, [the Supreme Court has] recognized that the term ‘relate to’ cannot be taken ‘to extend to the furthest stretch of its indeterminacy,’ or else ‘for all practical purposes pre-emption would never run its course.’ ” Egelhoff v. Egelhoff, 532 U.S. at 146, 121 S.Ct. 1322 (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)).

The Supreme Court has held that a state law “relates to” an ERISA plan, and is thus expressly preempted under § 514, “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. at 97, 103 S.Ct. 2890. Additionally, the Court has Egelhoff v. Egelhoff, 532 U.S. at 147, 121 S.Ct. 1322 (quotations and citations omitted).

cautioned against an uncritical literalism that would make pre-emption turn on infinite connections. Instead, to determine whether a state law has the forbidden connection, we look both to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive, as well as to the nature of the effect of the state law on ERISA plans.

The ERISA express-preemption provision does not apply “if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.” District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 n. 1, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (quotations and citations omitted). See Guidry v. Sheet Metal Workers Nat’l Pension Fund, 39 F.3d 1078, 1084 (10th Cir.1994)(en banc).

2. Complete Preemption.

The complete-preemption doctrine allows the removal of state actions that fall within the scope of § 502(a), 29 U.S.C. § 1132, ERISA’s civil-enforcement provision. Section 502(a)(1) provides a cause of action to any plan beneficiary or participant “to recover benefits due to him under the terms of [a pension] plan, to enforce his rights under the terms of the plan, or to clarify rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a). “[T]he preemptive force of § 502(a) of ERISA is so ‘extraordinary’ that it converts a state claim into a federal claim for purposes of removal and the well-pleaded complaint rule.” Felix v. Lucent Techs., Inc., 387 F.3d at 1156 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)).

In Metropolitan Life Insurance Co. v. Taylor, the Supreme Court found that ERISA manifested sufficient congressional intent to recharacterize state-law claims that fall within the scope of § 502(a) of ERISA as federal claims subject to removal. See 481 U.S. at 65-66, 107 S.Ct. 1542. The Supreme Court concluded that an ERISA-preemption defense provides a sufficient basis for removal of a cause of action to the federal courts notwithstanding the traditional limitation imposed by the “well-pleaded complaint” rule. 481 U.S. at 63-66,107 S.Ct. 1542.

“[Defendants seeking removal under the doctrine of complete preemption bear a significant burden. They must establish congressional intent to extinguish similar state claims by making the federal cause of action exclusive. And as [courts] must construe removal strictly, reasonable doubts must be resolved against the complete preemption basis for it.” Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir.2005). The Supreme Court in Metropolitan Life Insurance Co. v. Taylor held that the scope of the “complete preemption” exception for removal is narrow, and limited to state common-law or statutory claims that fall within § 502(a)(1)(B) of ERISA’s civil-enforcement provision, because “the legislative history consistently sets out this clear intention to make [§ 502(a)(1)(B) ] suits brought by participants or beneficiaries federal questions for the purpose of federal court jurisdiction.... ” 481 U.S. at 66, 107 S.Ct. 1542. The Supreme Court noted, however, that it had previously had held that “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.” 481 U.S. at 64,107 S.Ct. 1542. To come within the removal exception to the well-pleaded complaint rule, a court must, therefore, conclude that the state-law claim “should be characterized as a superseding ERISA action ‘to recover benefits due to [the plaintiff] under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,’ as provided in § 1132(a)(1)(B).” Wright v. Gen’l Motors Corp., 262 F.3d 610, 614 (6th Cir.2001). In Wright v. General Motors Corp., the United States Court of Appeals for the Sixth Circuit held that ERISA did not preempt a complaint for unlawful termination as a result of race and sex discrimination and retaliation. The state complaint included a request for damages for the proceeds of the plaintiffs late-husband’s life-insurance policy under his former employer’s Health and Disability Benefit Program. The Sixth Circuit concluded that the complaint was not removable because it “is not a lawsuit claiming wrongful withholding of ERISA covered plan benefits; it is a lawsuit claiming race and sex discrimination and retaliation resulting in damages, one component of which is a sum owed under the provision of the [employee-benefits] plan.” 262 F.3d at 614 (internal quotation marks omitted).

In Aetna Health Inc. v. Davila, the Supreme Court set forth the test for finding complete preemption:

Where the individual is entitled to such [claimed] coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls “within the scope of’ ERISA § 502(a)(1)(B). In other words, if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B).

Aetna Health Inc. v. Davila, 542 U.S. at 210, 124 S.Ct. 2488. The Supreme Court held that ERISA completely preempted a claim brought under a separate statute, the Texas Health Care Liability Act, for drug benefits under an ERISA plan, because the claim was not independent of the ERISA plan. See Aetna Health Inc. v. Davila, 542 U.S. at 210, 124 S.Ct. 2488. The Supreme Court emphasized that complete preemption under § 502(a) of ERISA is not limited to situations in which the state cause of action precisely duplicates a cause of action under § 502(a). See Aetna Health Inc. v. Davila, 542 U.S. at 216, 124 S.Ct. 2488 (“Congress’ intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA § 502(a) remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim.”).

3. Distinguishing Between Express Preemption and Complete Preemption.

The Supreme Court in Metropolitan Life Insurance Co. v. Taylor treated express preemption under § 514 and complete preemption under § 502(a) as two distinct concepts, with only the latter supporting removal. See Metro. Life Ins. Co. v. Taylor, 481 U.S. at 64, 107 S.Ct. 1542 (“ERISA pre-emption [under § 514], without more, does not convert a state claim into an action arising under federal law.”); Felix v. Lucent Techs. Inc., 387 F.3d at 1156. The Supreme Court in Metropolitan Life Insurance Co. v. Taylor explained that “federal pre-emption is ordinarily a federal defense to the plaintiffs suit,” and thus is insufficient grounds for removal. 481 U.S. at 63, 107 S.Ct. 1542. Although the Supreme Court in Metropolitan Life Insurance Co. v. Taylor determined that § 514 of ERISA expressly preempted the plaintiffs state law claims, the “well-pleaded complaint” rule precluded removal on the basis of a federal defense. See 481 U.S. at 64,107 S.Ct. 1542.

The Tenth Circuit has explained that “ERISA preemption under § 514 is not sufficient for removal jurisdiction and that a state law claim is only ‘completely preempted’ under [Metropolitan Life Insurance Co. v.] Taylor if it can be recharacterized as a claim under § 502(a).” Felix v. Lucent Techs., Inc., 387 F.3d at 1156. In Felix v. Lucent Technologies, Inc., the Tenth Circuit summarized the distinction between express preemption and complete preemption, quoting from the United States Court of Appeals for the Third Circuit’s opinion in Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.1995):

The difference between preemption and complete preemption is important. When the doctrine of complete preemption does not apply, but the plaintiffs state claim is arguably preempted under § 514(a), the district court, being without removal jurisdiction, cannot resolve the dispute regarding preemption. It lacks power to do anything other than remand to the state court where the preemption issue can be addressed and resolved.

Felix v. Lucent Techs., Inc., 387 F.3d at 1158 (quoting Dukes v. U.S. Healthcare, Inc., 57 F.3d at 355). See Giles v. NYL-Care Health Plans, Inc., 172 F.3d at 337 (“When a complaint contains only state causes of action that the defendant argues are merely conflict-preempted [under § 514], the court must remand for want of subject matter jurisdiction.”).

The Tenth Circuit elaborated on its view of ERISA complete preemption in Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir.1996), stating:

We read the term not as a crude measure of the breadth of the preemption (in the ordinary sense) of a state law by a federal law, but rather as a description of the specific situation in which a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress’s intent to permit removal.... This usage reveals that “complete preemption” refers to the replacement of a state cause of action with a federal one.

Schmeling v. NORDAM, 97 F.3d at 1342. In Carland v. Metropolitan Life Insurance Co., 935 F.2d 1114 (10th Cir.1991), the Tenth Circuit held that “a state law claim will convert to a federal claim only if the claim is preempted by ERISA and within the scope of ERISA’s civil enforcement provisions.” 935 F.2d at 1118-19. See Felix v. Lucent Techs., Inc., 387 F.3d at 1157 (quoting Carland v. Metro. Life Ins. Co.).

Other circuits have also stressed that § 502’s complete preemption is necessary for removal. See Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir.1995)(en banc)(overruling its prior precedent for “mistakenly allowing removal in a case not covered by § 1132(a)(1)(B) [§ 502 of ERISA] and only ■ arguably covered by § 1144(a) [§ 514 of ERISA]”); Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337 (5th Cir.1999)(“The presence of conflict-preemption [§ 514 of ERISA] does not establish federal question jurisdiction. Rather than transmogrifying a state cause of action into a federal one — as occurs with complete preemption — conflict preemption serves as a defense to state action”); King v. Marriott Int’l Inc., 337 F.3d 421, 425 (4th Cir.2003) (holding that a state claim must fit within the scope of § 502 and disregarding § 514 express preemption); Toumajian v. Frailey, 135 F.3d 648, 654-55 (9th Cir.1998)(flnding that if both § 514 and § 502 are not met, “the federal court does not have subject matter jurisdiction and the matter should be remanded”); Rice v. Panchal, 65 F.3d 637, 646 (7th Cir.1995); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir.1995)(“That the Supreme Court has recognized a limited exception to the well-pleaded complaint rule for state law claims which fit within the scope of § 502 by no means implies that all claims preempted by ERISA are subject to removal.”); Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 272 (2d Cir.1994).

The Tenth Circuit noted in Felix v. Lucent Technologies, Inc. that a claim that is remanded to state court risks being preempted in state court under § 514 of ERISA, leaving the plaintiff with no remedy. “Although this is a valid concern, we have not found it to be a concern of the federal judiciary.” 387 F.3d at 1162.

4. Section 510 and Section 502 Complete Preemption.

If a state-law cause of action conflicts directly with an ERISA cause of action, § 502 of ERISA becomes the exclusive remedy for the rights that ERISA guarantees. In many cases, courts have found that a plaintiffs claim falls within the scope of § 510, which provides:

It shall be unlawful for any person to discharge, fíne, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan....

29 U.S.C. § 1140 (§ 510 of ERISA).

In Ingersoll-Rand Co. v. McClendon, the Supreme Court held that, “when it is clear or may fairly be assumed that the activities which a State purports to regulate are protected [by § 510 of ERISA,] due regard for the federal enactment requires that state jurisdiction must yield.” 498 U.S. at 142, 145, 111 S.Ct. 478. In that case, the plaintiffs employer fired him, citing a companywide reduction in force. The plaintiff sued his employer in Texas state court, alleging that his pension would have vested in another four months and that a principal reason for his termination was the company’s desire to avoid making contributions to his pension fund. See 498 U.S. at 135-36, 111 S.Ct. 478. ' He sought compensatory and punitive damages under various tort and contract theories; he did not assert any cause of action under ERISA. The Texas Supreme Court concluded that ERISA did not preempt the plaintiffs state common-law wrongful discharge claim, because the plaintiff was not seeking lost pension benefits, but instead was seeking lost future wages and punitive damages. See 498 U.S. at 136, 111 S.Ct. 478. The Supreme Court of the United States reversed, finding that the existence of a pension plan was a necessary factor in establishing liability under Texas’ common-law wrongful-discharge cause of action. See 498 U.S. at 140, 111 S.Ct. 478. The Supreme Court concluded that the plaintiffs wrongful-termination claim “f[ell] squarely within the ambit of ERISA § 510[.]” 498 U.S. at 142, 111 S.Ct. 478. The Supreme Court stated:

By its terms § 510 protects plan participants from termination motivated by an employer’s desire to prevent a pension from vesting. Congress viewed this section as a crucial part of ERISA because, without it, employers would be able to circumvent the provision of promised benefits. S.Rep. No. 93-127, pp. 35-36 (1973); H.R.Rep. No. 93-533, p. 17 (1973). We have no doubt that this [wrongful termination] claim is prototypical of the kind Congress intended to cover under § 510.

498 U.S. at 143, 111 S.Ct. 478. The Supreme Court held: 498 U.S. at 145, 111 S.Ct. 478 (internal citations and quotations omitted).

Unquestionably, the Texas cause of action purports to provide a remedy for the violation of a right expressly guaranteed by § 510 and exclusively enforced by § 502(a). Accordingly we hold that when it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 510 of ERISA, due regard for the federal enactment requires that state jurisdiction must yield.

5. Defeating § 502 Complete Preemption with an Independent Legal Duty.

The Supreme Court in Aetna Health Inc. v. Davila explained that “if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and ... there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B).” 542 U.S. at 210, 124 S.Ct. 2488. Section 502(a)(1)(B) provides that a participant or beneficiary may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(l)(B)(§ 502(a)(1)(B) of ERISA). “[A] claim only falls within ERISA’s civil enforcement scheme when it is based solely on legal duties created by ERISA or the plan terms, rather than some other independent source.” David P. Coldesina D.D.S., P.C., Employee Profit Sharing Plan and Trust v. Estate of Simper, 407 F.3d 1126, 1137 (10th Cir.2005)(citing Aetna Health Inc. v. Davila, 542 U.S. at 210, 124 S.Ct. 2488); Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 950 (9th Cir.2009)(“Since the state-law claims asserted in this case are in no way based on an obligation under an ERISA plan, and since they would exist whether or not an ERISA plan existed, they are based on ‘other independent legal dutfies]’ within the meaning of [Aetna Health Inc. v.] Davila.”). In David P. Coldesina D.D.S., P.C., Employee Profit Sharing Plan and Trust v. Estate of Simper, the Tenth Circuit held that the district court erred in dismissing the plaintiffs’ negligent-supervision claim, which § 502 of ERISA did not completely preempt, because the plaintiffs’ claim implicated an independent legal duty recognized in agency and tort law that arose out of agency relationships. See 407 F.3d at 1137.

A number of circuits have found a distinction between claims that implicate “rate of payment” and those that implicate “right of payment,” and have held that, where claims do not involve ERISA coverage determinations and the claims have already been deemed “payable,” the only remaining issue is whether they were paid at the proper contractual rate, and therefore ERISA preemption does not apply. See, e.g., Lone Star OB/GYN Assocs. v. Aetna Health, Inc., 579 F.3d 525, 532 (5th Cir.2009); Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337 (11th Cir.2009). In Radcliff v. El Paso Corp., 377 F.Supp.2d 558 (S.D.W.Va.2005), the plaintiff asserted that the defendants’ refusal to pay him benefits and/or severance pay was in retaliation for him claiming workman’s compensation benefits. See 377 F.Supp.2d at 564. The United States District Court for the Western District of Virginia found that the only stated injury was the defendants’ refusal to pay benefits to the plaintiff under his ERISA-governed benefits plan, that there was, thus, no independent legal duty outside the scope of the ERISA plan, and there was, therefore, complete preemption. See 377 F.Supp.2d at 564.

LAW REGARDING THE NMHRA

The NMHRA makes it an unlawful discriminatory practice for

an employer, unless based on a bona fide occupational qualification or other statutory prohibition, 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, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity....

NMSA 1978, § 28-1-7. The NMHRA also allows individuals to bring a lawsuit in the appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994). The NMHRA provides:

A person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred or where the respondent does business by filing a notice of appeal within ninety days from the date of service of the [New Mexico Human Rights] commission’s order.

NMSA 1978, § 28-l-13(A).

The Supreme Court of New Mexico applies the framework that the Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[w]hen considering a violation of the NMHRA.” Juneau v. Intel Corp., 139 N.M. 12, 15, 127 P.3d 548, 551 (2005). The Supreme Court of New Mexico has stated that, “when considering claims under the NMHRA, we may look at federal civil rights adjudication for guidance in interpreting the NMHRA. Our reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that we have adopted federal law as our own.” Ocana v. Am. Furniture Co., 135 N.M. 539, 549, 91 P.3d 58, 68 (2004) (citations and internal quotations omitted). “[C]laims of age, race, national origin, gender discrimination, and retaliation are all subject to the burden shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green.” Gamez v. Country Cottage Care and Rehab., 377 F.Supp.2d 1103, 1119 (D.N.M.2005)(citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-804, 93 S.Ct. 1817). Under the McDonnell Douglas framework, a plaintiff must set forth a prima-facie case of discrimination. See Kelley v. City of Albuquerque, 375 F.Supp.2d 1183, 1210 (D.N.M.2004). If the plaintiff establishes a prima-facie case for any of his discrimination claims, “the burden shifts to the defendant to come forward with a legitimate nondiscriminatory reason for its employment related decision.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817. “Upon the employer’s articulation of a legitimate, nondiscriminatory reason ... the presumption of discrimination established by the prima facie case simply drops out of the picture.” Kelley v. City of Albuquerque, 375 F.Supp.2d at 1210 (internal quotations omitted). The plaintiff then must present evidence that the defendant’s proffered reason for the employment decision was pretextual. See Kelley v. City of Albuquerque, 375 F.Supp.2d at 1210 (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000)). The Supreme Court of New Mexico has stated that the framework it applies to discrimination claims under the NMHRA is as follows: “[A]n employee bears the initial burden of demonstrating a prima facie case of discrimination, which then shifts the burden to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. The employee then has the opportunity to rebut the employer’s proffered reason as pretextual or otherwise inadequate.” Juneau v. Intel Corp., 139 N.M. at 15, 127 P.3d at 551 (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05, 93 S.Ct. 1817). This approach is the same as the McDonnell Douglas framework.

1. Age-Discrimination Claims Under the NMHRA.

The NMHRA prohibits employment discrimination on the basis of age. See NMSA 1978, § 28-l-7(A). In Smith v. FDC Corp., 109 N.M. 514, 787 P.2d 433 (1990), the Supreme Court of New Mexico used the evidentiary methodology developed in McDonnell Douglas Corp. v. Green to provide guidance to interpreting the New Mexico Human Rights Act and analyzing discrimination claims. See 109 N.M. at 517-18, 787 P.2d at 436-37.

Under McDonnell Douglas Corp. v. Green, the plaintiff first bears the burden of establishing a prima-facie case of age discrimination, which is established when the plaintiff proves the following elements: (i) the plaintiff is a member of the protected age class — persons who are forty years old or older; (ii) the plaintiff was qualified to continue in his or her position of employment; (iii) the plaintiffs employment was terminated; and (iv) someone not a member of the protected age class filled the plaintiffs position. See Cates v. Regents of the N.M. Inst, of Mining & Tech., 124 N.M. 633, 638, 954 P.2d 65, 71 (1998). If the plaintiff carries this burden, the employer must then come forward with some legitimate, non-discriminatory reason for the adverse employment action. If the employer succeeds in this showing, the burden shifts back to the plaintiff to show that the employer’s proffered justification is pretextual. See Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1195 (10th Cir.2008).

In Branson v. Price River Coal Co., 853 F.2d 768 (10th Cir.1988), the Tenth Circuit altered the McDonnell Douglas framework’s fourth prima-facie element for reduction-in-force age-discrimination cases. See Branson v. Price River Coal Co., 853 F.2d at 770. The Tenth Circuit reasoned that, because it is difficult to prove that a younger employee replaced an older employee in a reduction-in-force situation, as a reduction in force necessitates that positions be eliminated, in such cases, the plaintiff can establish the fourth element of the prima-facie case through direct or circumstantial evidence that the plaintiff was treated less favorably than younger employees. See id. at 771. The Supreme Court of New Mexico has stated that it “agree[s] with the Branson court that an age-discrimination plaintiff in a reduction-in-force case may satisfy the fourth factor of the McDonnell Douglas test by submitting evidence that [the] plaintiff was treated less favorably than younger employees.” Cates v. Regents of the N.M. Inst. of Mining & Tech., 124 N.M. at 639, 954 P.2d at 71.

2. Retaliation Claims Under the NMHRA.

The NMHRA, Section 28-1-7(I)(2), declares it an unlawful discriminatory practice for “any person or employer to ... engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint ... under the Human Rights Act.” Prohibited acts of “threats, reprisal or discrimination” are considered together under the general label of unlawful retaliation. See Juneau v. Intel Corp., 139 N.M. at 16, 127 P.3d at 552 (2005). To establish a primafacie case of retaliation, the plaintiff must show that: (i) he or she engaged in protected activity; (ii) he or she suffered an adverse employment action; and (iii) there is a causal connection between these two events. See Ulibarri v. State Corr. Acad., 139 N.M. 193, 200, 131 P.3d 43, 50 (N.M. 2006).

LAW REGARDING NEW MEXICO WRONGFUL-TERMINATION CLAIMS

New Mexico recognizes a cause of action for wrongful termination. In Garcia v. Middle Rio Grande Conservancy Dist., 121 N.M. 728, 918 P.2d 7 (1996) the Supreme Court of New Mexico stated:

[I]n New Mexico an employment contract is for an indefinite period and is terminable at the will of either party unless there is a contract stating otherwise. New Mexico recognizes two exceptions to this general rule, however: wrongful discharge in violation of public policy (retaliatory discharge), and an implied contract term that restricts the employer’s power to discharge.

121 N.M. at 731, 918 P.2d at 10 (internal quotations and citations omitted). New Mexico courts created the tort of wrongful discharge “as a means of redress for the very limited situation in which an employee has no other means of protection against an employer’s breach of public policy. If the employee already has some protection, either because of an employment contract or through another cause of action, the tort is unnecessary and will not be recognized.” Salazar v. Furr’s, Inc., 629 F.Supp. 1403, 1409 (D.N.M.1986).

This tort is limited. In Salazar v. Furr’s Inc., the Honorable Santiago E. Campos, United States District Judge, declined to allow the plaintiff to bring her wrongful discharge claim because the claim was identical to her claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-h, based upon sex. See 629 F.Supp. at 1408. Judge Campos stated that, because “the public policies that may have been violated ... can be vindicated under the federal legislation, and perhaps under the New Mexico Human Rights Act as well, the Court finds that the tort of wrongful discharge will not lie.” 629 F.Supp. at 1408. Judge Campos continued by stating that, “[w]here a remedy other than this tort is available to Plaintiff to redress the discharge, the policy which underlies New Mexico’s recognition of the tort, that of softening the terminable at will rule, does not favor recognizing a cause of action.” Id.

Moreover, “[t]his Court ... has repeatedly refused to recognize a claim for [wrongful] discharge where other remedies are available to vindicate the alleged public policy violation. Specifically, we have refused to recognize an employer’s alleged Title VII violation as a basis for this tort.” McDonald v. Corr. Corp. of Am., 181 F.Supp.2d 1274, 1282-83 (D.N.M.2002) (Baldock, J., Circuit Judge sitting by designation). See Mayo v. Fowler Fitness, Inc., No. CIV 02-0222 JB/RLP, Memorandum Opinion and Order at 40-42, filed October 8, 2003 (Doc. 99)(noting that the plaintiff did not dispute that her claim for wrongful termination was identical to and indistinguishable from Title VII claims alleging retaliation and, because the plaintiff had identical remedies available to her under Title VII, the defendant was entitled to judgment as a matter of law on her wrongful-termination claim), aff'd, 110 Fed.Appx. 69 (10th Cir.2004); Trujillo v. N. Rio Arriba Elec. Co-op, Inc., 131 N.M. 607, 41 P.3d 333, 341 (holding that, “[b]e-cause [the plaintifffs discharge did not violate the Human Rights Act, his claim of wrongful discharge in violation of public policy must fail.”).

NEW MEXICO LAW REGARDING PRIMA-FACIE TORT

“Prima facie tort provides a remedy for persons harmed by intentional and malicious acts that are otherwise lawful, but fall outside of the rigid traditional intentional tort categories.” Portales Nat’l Bank v. Ribble, 134 N.M. 238, 240, 75 P.3d 838, 840 (Ct.App.2003). The Supreme Court of New Mexico has found that prima-facie tort exists only when the defendant’s acts meet the following elements: (i) an intentional unlawful act; (ii) committed with the intent to injure the plaintiff; (iii) causing injury to the plaintiff; and (iv) the absence of justification for the injurious act. See Grover v. Stechel, 132 N.M. 140, 145, 45 P.3d 80, 85 (2002) (citing Schmitz v. Smentowski, 109 N.M. 386, 396, 785 P.2d 726, 736 (1990)). The Supreme Court of New Mexico in Schmitz v. Smentowski held that the tortious act “must be committed with the intent to injure the plaintiff, or, in other words, without justification, but it need not be shown that the act was solely intended to injure plaintiff.” 109 N.M. at 395, 785 P.2d at 736.

“Prima facie tort was not intended to provide a remedy for every intentionally caused harm.” Lexington Ins. Co. v. Rummel, 123 N.M. 774, 777, 945 P.2d 992, 995 (1997). “Although prinia facie tort is not to become a catch-all alternative for every action that cannot stand on its own legs, [the New Mexico Court of Appeals] has, under certain circumstances, been willing to recognize a prima facie tort claim, even though the conduct in question bore a resemblance to another cause of action.” Hagebak v. Stone, 133 N.M. 75, 84, 61 P.3d 201, 209 (Ct.App.2002)(internal quotations omitted). “[T]here is simply no need to resort to prima facie tort” when a plaintiff has “existing causes of action providing] reasonable avenues to a remedy for the asserted wrongful conduct.” Bogle v. Summit. Inv. Co., L.L.C., 137 N.M. 80, 89, 107 P.3d 520, 529 (Ct.App.2005).

A plaintiff may not advance a claim for wrongful termination of an at-will employment “under the guise of prima facie tort,” because that “would emasculate the doctrine of employment terminable at will.” E.E.O.C. v. MTS Corp., 937 F.Supp. 1503, 1516 (D.N.M.1996). See Yeitrakis v. Schering-Plough Corp., 804 F.Supp. 238, 249 (D.N.M.1992)(holding that “prima facie tort is unavailable to remedy the termination of an at-will employee, even where he is terminated for bad cause.”).

A plaintiff also has no claim in prima-facie tort for intentional discrimination. See Silverman v. Progressive Broadcasting, Inc., 125 N.M. 500, 510, 964 P.2d 61, 71 (Ct.App.1998). “Intentional acts by reason of sexual harassment and sexual discrimination are unlawful acts and thus not actionable, as a matter of law, under the prima facie tort theory.” Id. (internal quotations omitted). In Silverman v. Progressive Broadcasting, Inc., the New Mexico Court of Appeals held that the trial court properly dismissed the plaintiffs prima-facie-tort claim against the defendants because she contended that the defendants had committed a prima-facie tort by intentionally discriminating against her on the basis of sex'. See 125 N.M. at 510, 964 P.2d at 71.

ANALYSIS

Sandia Labs moves the Court to dismiss Ruby’s four state-law claims because ERISA completely preempts them. Ruby moves the Court to remand his case to state court because, he argues, ERISA does not completely preempt his claims. Complete preemption is an exception to the well-pleaded complaint rule that permits removal of a complaint - alleging state-law claims if “federal preemption makes the state law claim necessarily federal in character.... ” Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1061 (10th Cir.2006). Thus, even if a complaint alleges state-law claims, a state-law claim may be converted into an ERISA claim for purposes of removal and the well-pleaded complaint rule if ERISA completely preempts the claim. See Felix v. Lucent Techs., Inc., 387 F.3d at 1156. Because the Court finds that Ruby’s NMHRA claims for age discrimination and retaliation arise from independent legal duties separate from those ERISA creates, the Court finds that ERISA does not completely preempt those claims. Because the Court finds that ERISA completely preempts Ruby’s claims for wrongful termination and prima-facie tort, the Court will convert those claims into a federal claim under ERISA’s civil-enforcement provisions. Because complete preemption by ERISA converts the state-law claims into a federal claim upon which relief can be granted, the Court denies Sandia Labs’ motion to dismiss and will grant Ruby leave to amend his Complaint to properly plead his preempted state claims under ERISA and to add additional state and/or federal claims. Further, because both parties have requested the Court to maintain supplemental jurisdiction if the Court finds complete preemption for some of the claims, the Court will deny the Plaintiffs motion to remand and will maintain jurisdiction over all Ruby’s claims.

I. THE COURT CONSTRUES RUBY’S COMPLAINT IN THE LIGHT MOST FAVORABLE TO HIM AND FINDS THE COMPLAINT ASSERTS MIXED MOTIVES FOR HIS AGE-DISCRIMINATION AND RETALIATION CLAIMS.

Sandia Labs has brought the issue of ERISA complete preemption before the Court on a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court, therefore, accepts all of Ruby’s allegations as true and views Ruby’s Complaint in the light most favorable to him. See Maez v. Mountain States Tel. & Tel., 54 F.3d 1488, 1496 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991)).

In his motion to remand, Ruby argues that his Complaint states causes of action:

predicated on the averments that Sandia treated him differently than younger employees in order to save money, that but for his age he would not have been treated unfairly (Complaint ¶ 20) and that he “was treated less favorably by Sandia management than other younger employees with respect to employment decisions because of his age.” [Complaint], ¶ 59.

Motion to Remand at 2. At the hearing, Mr. Garcia argued that “at the heart of Dr. Ruby’s ten page Complaint are allegations that Sandia discriminated against him because of — on the basis of age.” Tr. at 3:10-12 (Garcia). He pointed to Paragraph 20 of the Complaint, which states that “Were Dr. Ruby not an older long-term employee he would have not have been the subject of such wrongful termination.” Complaint ¶ 20, at 5. While Garcia conceded that Ruby has alleged that part of the reason Sandia Labs terminated Ruby was in an effort to save money, “including denying Dr. Ruby retirement benefits,” Transcript of Hearing at 4:5-7(Garcia), he also argued that “[the Complaint] tells a story about age discrimination, it tells a story about retaliation, and it tells a story about termination of an employee in order to save money.” Tr. at 30:12-14 (Garcia).

Sandia Labs repeatedly emphasized Paragraphs 18 thr