Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D.N.M.: Employee’s ADA claim for hostile work environment could proceed against a New Mexico district attorney’s office, (May 11, 2026)

By Nicholas Kaster, J.D.

The employee failed to establish that the alleged harassment based on her national origin was sufficiently severe and pervasive to alter the terms and conditions of her working environment.

An employee’s hostile work environment and failure to accommodate claims under the Americans with Disabilities Act (ADA) can proceed against her employer, a state district attorney’s office, a federal district court in New Mexico has held. The court held that the employee was subject to repeated and consistent verbal harassment related to her health and disability and required to perform tasks that allegedly exceeded her medical restrictions. The court dismissed the remainder of her claims (Epifani v. State of New Mexico, No. 25-247 GJF/SCY (D.N.M. May 8, 2026)).

Harassment claims. The case arose from a complaint for employment discrimination based on national origin and disability brought by an employee who worked for the New Mexico Thirteenth Judicial District Attorney’s Office. The employee was of Italian national origin and had several disabilities. She alleged she had been experiencing degrading and belittling comments and harassment that caused a hostile work environment for her based on her age, ethnicity, country of origin, and medical history since July 2022.

The employee alleged that she was wrongly accused of being absent without leave in September 2022. She provided her supervisors with evidence to show she had approved leave for the time she was away from the office, as well as emails demonstrating her presence in the office. She also provided the DA’s Office with a September 21, 2022 letter from her doctor, which explained that she “is affected by osteoarthritis and rheumatoid arthritis of the knees affecting her ability to walk distances” and asked that she not be on the court run schedule. Because of her medical conditions, the employee’s hands would shake at times. She claimed that a supervisor made fun of her for it and called the attention of others to it as well.

In February 2024, the employee alleged that her new supervisors adjusted her duties, failed to accommodate her medical needs, and began wrongfully attributing errors to her that were beyond her control. On February 15, 2024, they gave her notice of poor work performance and demoted her to a legal assistant position. In April 2024, she alleged that her supervisors met with her and required that she sign a document that attributed errors to her that were beyond her control and failed to accommodate her medical needs and that listed tasks that were notably vague with no objective metric for success.

The employee was allegedly informed that, as of March 4, 2024, she would no longer be allowed to work from home one day per week, even though others were still allowed to work from home, some due to health issues which she also had. On May 23, 2024, her supervisor directed her to do the mail run. The employee responded that her doctor did not want her driving. Her supervisors nevertheless decided she needed to start doing the mail run, explaining that the doctor’s note was only for the court run. That same day, she was instructed to complete a defensive driving course. She said she attempted to complete the course online as a renewal; but, because her renewal period expired, she needed to drive to Santa Fe to complete the driving course. Later that day, the employee was terminated.

On July 15, 2024, the employee filed a charge of discrimination with the New Mexico Human Rights Bureau. The Bureau issued an Order of Non-Determination letter on September 20, 2024, informing her she had 90 days to file a notice of appeal to the district court. The EEOC issued the employee a letter dated December 10, 2024, which notified her of her right to sue within 90 days. The employee filed suit on March 10, 2025, alleging she was discriminated against because of her Italian national origin and because of her physical disabilities. She brought claims against her employer and various individuals under Title VII; the ADA; the New Mexico Human Rights Act (NMHRA); and the New Mexico Whistleblower Protection Act (NMWPA). Her employer and the individual defendants moved to dismiss the entire complaint.

NMHRA claims were time-barred. Exhaustion of administrative remedies under the NMHRA is a jurisdictional prerequisite to suit. Here, the employee failed to file an appeal within 90 days from the date of the Order of Non-Determination, which was dated September 20, 2024. The employee did not file her complaint until March 10, 2025, well more than 90 days after service of the Order of Non-Determination. The court thus concluded that the NMHRA claims were time-barred and dismissed the NMHRA claims.

Title VII and ADA claims. The court held that the Title VII and ADA claims were not time-barred based on failure to file suit within 90 days of receipt of the EEOC determination letter. Claims based on discrete acts occurring on or before September 18, 2023, however, were held to be time-barred and the employee failed to exhaust all her Title VII and ADA claims by not including them in her charge of discrimination.

The court also dismissed the Title VII and ADA claims against the individual defendants and State of New Mexico. The court held that dismissal of the Title VII and ADA claims against the individual employees was appropriate for failure to exhaust administrative remedies against them. Moreover, the official capacity claims would be merely the equivalent of a claim against their employer—the Thirteenth District Attorney’s Office.

Hostile work environment claim. The court held that the employee stated a plausible claim for hostile work environment based on disability under the ADA but not based on national origin under Title VII.

To state a hostile work environment claim based on national origin discrimination, the plaintiff must show under the totality of the circumstances: (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment stemmed from national origin animus. A plaintiff must demonstrate that the work environment was both objectively and subjectively hostile or abusive. The court here found that the employee failed to allege enough facts to establish that the alleged harassment based on her national origin was sufficiently severe and pervasive to alter the terms and conditions of her working environment.

Two isolated comments regarding the employee’s Italian heritage, made during the same meeting, fell well short of what is necessary to prove severe or pervasive discrimination, said the court. Further, a comment by a supervisor in an email saying she should go back to school to learn grammar, was not directly tied to animus by the supervisor with respect to her national origin.

A hostile work environment claim requires more than disrespectful, rude, chilly, or otherwise disagreeable behavior, said the court. The employee’s allegations were not enough to demonstrate that she suffered harassment based on her Italian heritage that was so severe or pervasive that it altered a term, condition, or privilege of her employment and created an abusive working environment. The court therefore dismissed the hostile work environment claim based on national origin.

Disability claim. The employee also asserted an ADA hostile work environment claim. The employee listed her disability or perceived disability as osteoarthritis (OA), rheumatoid arthritis (RA), and diabetes. She provided her employer with doctor’s notes stating that her OA and RA affected her ability to walk distances, so she should not be on the court run schedule, and that her diabetes can cause sudden mood swings and change in behavior. Her doctor’s letter also notified her employer that she should be allowed more frequent breaks to check her blood glucose levels.

She also alleged that a supervisor began “chronically abusing” her verbally by saying in front of other employees in the office that she was always forgetting things because she had dementia. She further asserted that, because of her medical conditions, her hands would shake at times, and when that occurred around the supervisor, he made fun of her for it and called the attention of others to it as well.

According to the employee, she was admitted to the emergency room because of her blood sugar and blood pressure, yet she was given a formal reprimand and disciplinary action for leaving without informing her supervisor. Additionally, she alleged that her supervisors adjusted her duties, failed to accommodate her medical needs, attributed errors to her that were beyond her control, and shortly thereafter demoted her for poor work performance. Finally, she alleged that she was required to do the mail run, despite her doctor’s note recommending that she not do the court run and that she said her doctor did not want her driving.

The court noted that, on a motion to dismiss, all reasonable inferences must be construed in favor of the plaintiff. Based on the totality of the allegations, the court found that the employee stated a plausible claim for ADA hostile work environment based on her disability. She alleged repeated and consistent verbal harassment related to her health and disability and requiring her to perform tasks that allegedly exceeded her medical restrictions. The court therefore denied the motion to dismiss her ADA hostile work environment claim.

Retaliation claim. However, the court held that the employee failed to state a claim for Title VII and ADA retaliation. To make a prima facie case of retaliation, a plaintiff must show: (1) she engaged in protected opposition to discrimination; (2) she subsequently suffered adverse action by the employer; and (3) there was a causal connection between the protected activity and the materially adverse action. To prove Title VII retaliation, a plaintiff must show but-for causation, in other words, that the unlawful retaliation would not have occurred in the absence of unlawful action by the employer.

The court found that the employee failed to exhaust her Title VII or ADA retaliation claim arising from her termination. Moreover, even had she exhausted her termination claim, she did not allege that her termination in May 2024 was because of her protected activity. Even construing the complaint with inferences in her favor, the employee’s complaint failed to allege what terms and conditions of her employment were negatively affected because of her protected activity.

In sum, the motion to dismiss was denied as to the ADA claims for hostile work environment, failure to accommodate, and unlawful demotion with respect to the District Attorney’s Office. The remainder of the claims were dismissed.

The case is No. 25-247 GJF/SCY.

Judge: Fouratt, G.

Attorneys: Salvador Alejandro Guardiola, II (Rio Grande Estate Planning) for Cosima Epifani. Deborah D. Wells (New Mexico Local Government Law) for State of New Mexico and Thirteenth Judicial District Attorney’s Office.

Companies: State of New Mexico; Thirteenth Judicial District Attorney’s Office

Cases: Discrimination DisabilityDiscrimination NationalOrigin Retaliation StateLawClaims NewMexicoNews