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STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL
DISTRICT COURT JOHN CORVINO, Plaintiff, No.: v. THE CITY OF
ALBUQUERQUE ex rel THE ALBUQUERQUE POLICE DEPARTMENT, GORDEN EDEN,
Jr., JOSEPH WOLF, and MICHAEL ARCHIBEQUE (in his official and
individual capacity), Defendants.
COMPLAINT FOR DAMAGES FOR WHISTLEBLOWER PROTECTION ACT
VIOLATIONS,
PRIMA FACIE TORT, AND EMOTIONAL PAIN AND SUFFERING
I. CONCISE STATEMENT OF THE CASE
Plaintiff John Corvino (Corvino) is a thirty-year veteran police
officer with over
twenty-five years as an officer of the Albuquerque Police
Department (APD). With decades of
service as an experienced patrol officer, Corvino retired from
APD in December, 2005
whereafter he was rehired by APD in January 2007 and assigned to
the departments police
academyspecifically its Advanced and Basic Training Units. While
assigned to such units,
Corvino provided thousands of hours of instruction to hundreds
of APD cadets, APD officers,
and to personnel from other law enforcement agencies from across
the county. As a police
instructor, Corvino holds numerous New Mexico Department of
Public Safety (NMDPS)
certifications to teach police cadets and police officers
specialized and high risk subject matter
including Use of Force, Verbal Defense and Influence, and
Emergency Vehicle Operations.
FILED IN MY OFFICEDISTRICT COURT CLERK
5/7/2015 11:16:28 AMJames A. NoelPatricia Serna
D-202-CV-2015-03865
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Corvino also holds NMDPS Master Instructor Certification to
teach Basic Police Instructor
Training and Intermediate Force Instructor Training (defensive
tactics). Unlike basic or
specialized certification, Master Instructor certification
authorizes Corvino to provide NMDPS
accredited instruction and to certify upcoming instructors.
As an APD Academy police instructor, Corvino was bound to follow
and comply with
his departments Professional Accountability Bureau standard
operating procedures and rules of
the New Mexico Administrative Code (NMAC) concerning such police
instruction. Such
requirements include being the departments lead instructor in
specialized matters, maintaining
and updating training records, and ensuring compliance with
NMDPS requirements. In October
2013, while the Academy operated at the direction of its
civilian director, Joseph Wolf, and its
sworn officer commander, Lieutenant Michael Archibeque, nearly
two-dozen officers attended
two separate defensive tactics instructor certification classes
to wit Intermediate Force
Instructor Certification and Ground Control Instructor
Certification at the academy. At
Defendant Archibeques direction, these classes were held as
instructor classes whereafter
graduates would be NMDPS certified instructors authorized to
teach defensive tactics to students
including APD police cadets. In order for the classes to be
accredited whereby graduates
received valid instructor certifications, pursuant to the rules
of the NMAC governing such
classes, only instructors certified as defensive tactics Master
Instructors could teach such classes.
Instead of having Corvino teach the classes, who is certified as
a Master Instructor in defensive
tactics, Wolf and Archibeque brought in personnel from outside
APDs academy who were not
certified Master Instructors in any police training subject
matter.
Upon learning of this deficiency in the instructors
qualification, and thereby in violation
of NMAC rules, Corvino informed Archibeque, Wolf, and personnel
at the New Mexico Law
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Enforcement Academy (NMLEA) that because the courses were not
compliant with the
NMAC, none of the graduates certificates were valid. Despite
Corvinos obligations as a police
officer to uphold the law, and his assignment related
responsibilities to ensure proper compliance
with APD procedures and NMAC rules, Corvino was told by at least
Wolf and Archibeque to
cease all contact with NMLEA personnel and was further told that
there was no defect in the
October classes or their graduates. Additionally, Corvino was
then presented a letter to sign,
fabricated by Wolf (but in Corvinos name), that falsely stated
Corvino provided oversight of the
October classes and that they complied with NMDPS requirements.
Corvino refused to sign the
letter. Recognizing that failing to correct the invalid
instructor certifications posed to invalidate
the instruction of police cadets and other students, Corvino
informed and communicated with
NMLEA personnel of Archibeque and Wolfs actions in personal
conversations and written
documents.
In response to Corvino contacting NMLEA personnel concerning the
actions and
inactions of Archibeque and Wolf, Archibeque spoke with APD
Deputy Chief William Roseman
who advised Archibeque to initiate an APD Internal Affairs unit
(IA) investigation of Corvino,
which Archibeque did. In the months following Archibeques
contact with IA, Corvino was
ostracized and excluded from social and professional activities
at the Academy and, among other
retaliatory actions, barred from providing instruction to police
cadets. With IA concluding the
investigation of Corvino in July 2014, APD Chief Gorden Eden
imposed an eighty-hour unpaid
suspension as final discipline upon Corvino because of his
alleged violations of APD procedures
which included insubordination, bringing the department into
disrepute, and releasing
confidential department material.
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In fact, during a period whereby the United States Department of
Justice was
investigating APD and its officers for a pattern and practice of
excessive force, Corvino sought
to intervene to correct invalid training and certification in
order to keep the department from
disrepute and further harm. As a consequence of his efforts to
ensure defensive tactics training
was compliant with state rules, and thus the instructors
certification to teach and cadets
certifications as police officers valid, Eden, Wolf, and
Archibeque retaliated against Corvino by
adversely affecting his employment by suspending him without
pay, making his working
conditions unenjoyable and intolerable, and subjecting him to
emotional harm and mental
anguish. Eden, Wolf, and Archibeque additionally failed to
remedy the invalid certifications for
instructors who, upon information and belief, continue to teach
defensive tactics instruction to
cadets to this day. Additionally, the of the validity of as many
as one-hundred police officers
certifications remain in question and in doubt because of the
invalid training provided to them.
Corvino brings this complaint under NMSA 1978, 10-16C-1 et seq,
the Whistleblower
Protection Act, and New Mexico common law for damages resulting
from the illegal retaliation
against him for engaging in protected activities while employed
by the City of Albuquerque.
II. JURISDICTION AND VENUE
1. Jurisdiction and venue are proper in state court pursuant to
NMSA 1978, 10-16C-4. All of
the parties reside in New Mexico and the acts and inactions
complained of occurred in
Bernalillo County and the State of New Mexico.
III. PARTIES 2. Plaintiff John Corvino (Corvino) was employed by
the City of Albuquerque as a police
officer and was assigned positions at APDs Police Academy from
January 2007 through
April 2015.
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3. Defendant City of Albuquerque is a municipality in the State
of New Mexico and a public
employer.
4. Defendant Gorden Eden is employed by the City of Albuquerque
as the chief of the
Albuquerque Police Department and was the departments highest
ranking sworn police
officer during the period of the allegations contained
herein.
5. Defendant Joseph Wolf was employed by the City of Albuquerque
and was the civilian
Director of Training at the Albuquerque Police Department Police
Academy and Corvinos
civilian supervisor during the period of the allegations
contained herein.
6. Defendant Michael Archibeque is employed by the City of
Albuquerque and is the sworn
police officer commander at the Albuquerque Police Department
Police Academy Chief of
Staff overseeing Corvino during the period of the allegations
contained herein.
IV. FACTUAL ALLEGATIONS 7. Corvino re-alleges and incorporates
herein the allegations referenced as if set forth herein.
8. Corvino was hired by the City of Albuquerque and employed as
an officer of the Albuquerque
Police Department in 1988 and retired as a police officer in
December 2005. Corvino was an
APD Reserve Police Officer during his brief period of separation
from the city after
retirement.
9. Corvino was rehired by the City of Albuquerque in January
2007 as a police officer whereby
he was assigned to APDs Police Academy and remained there until
his resignation in April
2015.
10. Assigned to APDs Police Academy, Corvino held positions as
an instructor in the
academys Basic Training Unit as well as its Advanced Training
Unit. As an instructor in
those units, Corvino provided thousands of hours of instruction
to department cadets, non-
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department cadets, and sworn law enforcement officers from APD
as well as other in state
and out of state agencies.
11. Corvino holds NMDPS instructor certifications in general
police instruction, use of force,
emergency vehicle operations, Taser, law enforcement fitness,
and defensive tactics among
others. With these certifications Corvino is able to teach NMDPS
accredited classes of those
and other subject matters to police cadets and police.
12. Corvino holds NMDPS Master Instructor certifications in
Basic Police Instructor and
Intermediate Force Instructor subject matters. With these
certifications Corvino is able to
teach NMDPS accredited classes to students who upon successful
completion of the
instruction are approved and certified to teach classes of those
subject matters to police
cadets and police officers.
13. Intermediate Force instruction is referred to generally as
defensive tactics instruction and
is recognized by the NMLEA and 10.29.4.10(C)(1) NMAC as a
high-risk subject matter of
instruction.
14. Defendant Wolf, upon information and belief, holds no NMLEA
certifications to teach
police officers or police cadets any subject matter of
instruction.
15. As Director of the APD Academy, Defendant Wolfs
responsibilities were outlined in APD
standard operating procedures (SOP). Such responsibilities
included:
A. Executive oversight of the Police Academy and Training staff
and compliance with
Department Standard Operating Procedures, city personnel
regulations, collective
bargaining agreements, and city, state, and federal laws and
regulations.
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B. Liasion with the Department of Public Safety, regarding
training
standards/requirements, and establishing and enforcing
appropriate contracts and other
operating agreements.
C. Direction, quality, discipline and administrative control of
all training staff; review and
approval of performance evaluations/feedback, commendations, and
disciplinary
recommendations.
16. Defendant Archibeque holds several NMLEA certifications to
teach police officers or police
cadets a variety of subject matter including firearms, use of
force, and emergency vehicle
operations among other subject matter areas. Upon information
and belief, Defendant
Archibeque has not led one class of instruction to any police
cadets or police officers.
17. As the APD Academy Lieutenant, Defendant Archibeques
responsibilities are outlined in
APD SOPs. Such responsibilities include:
A. Ensuring compliances with Standard Operating Procedures, city
personnel regulations,
collective bargaining agreements, and city, state, and federal
laws and regulations.
B. Assisting the Director of Training with liaison
responsibilities with the Department of
Public Safety, regarding training standards and/or
requirements.
C. Ensuring direction, quality, discipline and administrative
control of all training staff;
review and approving performance evaluations/feedback,
commendations, and
disciplinary recommendations.
D. Serve as the Police Academys principal subject-matter-expert
(SME) on APD
organization and operations.
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18. The APD Police Academy is recognized as a NMLEA authorized
satellite academy pursuant
to 10.29.5 et seq. NMAC and among its responsibilities is to
provide basic training to APD
police cadets who upon successful graduation become APD police
officers.
19. In October 2013, at the direction of Defendant Archibeque,
two classes were held at APDs
Police Academy to increase the number of APDs defensive tactics
instructors. From
October 7-11, 2013, sworn officers attended the Intermediate
Force Instructor Certification
(IFIC) class, and from October 14-18, 2013, sworn officer
attended the Ground Control
Instructor Certification (GCIC) class. Successful graduates of
both courses desired to be
NMDPS certified defensive tactics instructors.
20. The primary and lead instructor for the two classes
referenced in Paragraph 17 was Vicente
Alvarado. Mr. Alvarado is a former APD officer and does not
possess a NMDPS Master
Instructor certification in any police training subject
matter.
21. Alvarado had previously been denied issuance by NMDPS of
Master Instructor certification
in defensive tactics as recently as August 3, 2011.
22. Under 10.29.4 et seq. NMAC, the rules by which personnel
interested in becoming law
enforcement instructors may be certified by NMDPS as general
instructors, specialized
instructors, and master instructors is defined. The NMDPS
follows the higher education
model whereby general and specialized instructors receive their
certifications to teach by
attending, and successfully completing, classes led and
administered by NMDPS certified
master instructors.
23. As Alvarado was not a NMDPS certified Master Instructor in
defensive tactics, all attendees
of both October 2013 classes were not in compliance with NMLEA
and NMAC rules and as
such, all attendees who were issued certifications were issued
certifications that were void.
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24. Upon information and belief Alvarado has previously provided
invalid defensive tactics
instructor training to other APD personnel as early as April 1,
2011 when Alvarado did not
possess Master Instruction certification then either. Upon
information and belief, such
personnel have thereafter provided invalid defensive tactics
instruction to police cadets since
April 2011.
25. Upon information and belief, attendees of the two October
2013 classes have provided
defensive tactics instruction to police cadets and police
officers. As the certifications of
these attendees are void, any such training rendered to other
personnel is as a direct
consequence, also void.
26. Pursuant to NMLEA rules, police cadets must complete at
least sixty-hours of defensive
tactics instruction as part of their basic police training
program. Such instruction requires
cadets to be instructed and evaluated for proficiency by NMDPS
certified defensive tactics
instructors.
26. Pursuant to 10.29.9.18(A) NMAC, only students who
successfully complete a basic police
training program and have completed all requirements under the
minimum standards of
training are allowed to take the New Mexico law enforcement
officer certification exam.
27. Pursuant to 10.29.5 et seq.NMAC, the NMLEA has authority
over the APD Police Academy
to ensure, among other things, its instructors and curriculum
are accredited. Such
requirements concerning instructions includes that high risk
instruction, such as defensive
tactics, must be instructed by personnel certified by NMDPS in
those areas of instruction.
Furthermore, pursuant to 10.29.5.13 NMAC, the director of the
NMLEA has direct
authority to monitor and evaluate the APD Police Academy and
initiate decertification
proceedings.
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28. Upon information and belief, cadets from at least APDs
105-110 cadet classes who received
voided defensive tactics instruction have taken the New Mexico
law enforcement officer
exam.
29. During the time APD IA was investigating Corvino for alleged
SOP violations, and before
the filing of this complaint, Defendant Eden issued orders to
APD employees forbidding
them from meeting with or communicating with United States
Department of Justice
officials.
30. Since disciplining Corvino, Defendant Eden stated on about
April 15, 2015, that his duty as
a police chief is to protect the person who came forward with
that information to make sure
there is no retaliation regarding a cadet who alerted APD
personnel of alleged misconduct
by an APD officer. With such a statement, Eden acknowledges and
confirms that APD
personnel can be subject to retaliation and need protection.
31. Defendant Eden also said on about April 15, 2015, that
referring investigations of
misconduct by APD personnel to outside agencies is, for the
protection of whistleblowers
because such persons are less likely to face retaliation if the
investigation is handled outside
of APD.
32. With respect to personnel who have alerted APD personnel of
misconduct by other APD
personnel, Defendant Eden said on about April 14, 2015, that he
is worried for the safety of
the employee who made the report. If we provide any further
information, it may put that
employee in jeopardy. We are not going to do that.
CORVINOS PROTECTED ACTIVITY
33. Upon awareness of the October 2013 defensive tactics
instructor classes, Corvino contacted
NMLEA personnel to ascertain the certification credentials of
Alvarado whereby he was
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told Alvarado was not certified as a NMDPS Master Instructor in
any law enforcement
subject matter.
34. Upon being informed of Alvarados certification deficiency,
Corvino told Defendant
Archibeque and Defendant Wolf of invalidity of the October 2013
defensive tactics
instructor classes. Corvino was told by Defendants Wolf and
Archibeque, and APD Police
Academy Sergeant David Jaramillo, not contact or talk with NMLEA
personnel regarding
APD personnel certifications any more for any reason.
35. As part of his APD Police Academy position, and as a NMLEA
certified defensive tactics
Master Instructor, Corvino spoke with and was in contact with
NMLEA personnel on a
weekly basis. After being told not contact NMLEA personnel by
Defendants Wolf and
Archibeque, Corvino continued to contact NMLEA personnel in
compliance with
responsibilities of his position.
36. On about December 4, Corvino told and informed personnel at
the NMLEA of his concerns
of the October 2013 defensive tactics instructor class up to and
including the director of the
NMLEA. Corvino informed NMLEA personnel that the harmful
consequences of the
invalid certifications upon APD and the cadets who were given
the invalid instruction would
be immeasurable because it was unclear if the cadets were
receiving training compliant with
NMLEA accreditation requirements.
37. On about December 11, 2013, Defendant Wolf wrote a letter on
APD letterhead fabricating
facts relating to Corvino overseeing the October 2013 defensive
tactics instructor classes
and approving of the instruction [Attached herein as Exhibit
#1]. Defendant Wolfs letter
was presented to Corvino for him to sign as if he had written
it. Corvino refused to sign the
letter or otherwise endorse it or the facts alleged in it.
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38. After refusing to the sign the letter, Corvino was advised
by APD Academy Sergeant James
Collins that there was a copy of Defendant Wolfs letter in his
mailbox and that Corvino
could take the copy. Corvino took a copy and made a digital
image of it.
39. On about December 18, 2013, after informing Defendants Wolf
and Archibeque of his
concerns about APD Police Academy continuing to have personnel
uncertified to teach
defensive tactics to police cadets and his discussions with
NMLEA personnel, Corvino was
ordered by Sergeant David Jaramillo not to contact NMLEA
regarding APD personnel
certifications.
40. While again up at the NMLEA on about February 5, 2014,
Corvino showed and provided
NMLEA personnel a copy of Defendant Wolfs letter alerting them
to his concerns that not
only did he refuse to sign such a letter but that if such a
letter were to be sent to NMLEA he
did not endorse it.
RETALIATION
41. In February 2014, Defendant Archibeque became aware of
Corvinos actions of informing
NMLEA personnel of the invalidity of the October 2013 defensive
tactics class and
providing them with a copy of Defendant Wolfs letter. Defendant
Archibeque spoke with
APD Deputy Chief William Roseman concerning the matter and then
wrote a memorandum
on about February 21, 2014 requesting an IA investigation into
Corvino and his actions.
42. In his memorandum to IA, Defendant Archibeque alleged
Corvinos behavior had been
detrimental to the APD academy and now the department as a
whole. Defendant
Archibeque further alleged that Corvino, constantly [has] done
all that he can do to bring
a negative image to the Academy and the Albuquerque Police
Department[.]
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43. In the weeks and months following Defendant Archibeques
memorandum to APD IA,
Corvino was excluded and ostracized from APD Academy events.
Such exclusion included
Defendants Wolf and Archibeque disallowing Corvino from teaching
police cadets entirely
and discontinuing other training opportunities with cadets such
as scenarios.
44. Corvino was excluded from APD Academy personnel events
including birthday or
promotion celebrations, denied issuance of Academy physical
fitness apparel, given the
silent treatment, was subjected to increased scrutiny, denied
use of the APD Academy gym,
was excluded from providing training to other personnel while
other non-academy
personnel were brought in, excluded from providing instruction
to APD Police Service Aids,
was criticized publicly by supervisors in front of other
non-department officers, had his
office removed and was ordered to relocated to a cubicle, had
his department issued car
replaced with an older used model, was disallowed to go home
early on occasions where
others were allowed to leave early, and additionally found his
office tampered with the
morning following evening training scenarios.
45. At no time did Defendant Wolf protect Corvino, or act in
opposition of such actions upon
Corvino, from any such adverse actions upon Corvinos employment
or working conditions.
46. During the course of the IA investigation, Corvino was
interviewed three times. Upon the
conclusion of the investigation, the file was issued up to
Defendant Eden who concluded
Corvino had violated APD SOPs concerning insubordination on the
basis of his contact
with NMLEA personnel, had engaged in conduct that could bring
APD into disrepute based
off of his contact with NMLEA personnel regarding the content of
his contact with NMLEA
personnel, and had not treated the official business of APD as
confidential based off of
Corvinos disclosure of Defendant Wolfs letter to NMLEA
personnel.
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47. During the course of the APD IA investigation, Defendant
Wolf was also identified as a
target for misconduct and was issued a letter of reprimand for
his fabricated letter he sought
to have Corvino sign and endorse.
48. During the course of the APD IA investigation, NMLEA
personnel are interviewed by APD
personnel. On about March 19, 2014, APD IA personnel are advised
by NMLEA personnel
that:
A. Corvino informed them of Alvarados October 2013 defensive
tactics classes.
B. Personnel who took Alvarados October 2013 classes are not
permitted to instruct police
cadets.
C. Alvardos application for Master Instructor certification was
denied.
D. Defensive tactics is recognized as a high risk field of
training.
E. Cadets who received training by attendees from Alvarados
class would not have
certifications recognized by NMDPS.
F. Cadets who graduate from APDs Police Academy technically
would not be certified as
police officers because they technically would not have valid
police officer certifications
in defensive tactics training.
49. During the IA investigation Defendant Wolf referred to NMLEA
Master Instructor
certifications as simply honorary.
50. Defendant Wolf was named a target of the IA investigation of
Corvino was issued a
disciplinary letter of reprimand for the fabricated letter he
wrote in Corvinos name on
APD letterhead.
51. Corvinos discipline consisted of receiving an eighty-hour
suspension whereby he lost forty
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paid hours of work and a formal record of discipline was entered
into his personnel file. In
support of his effort to appeal his discipline through city
administrative avenues, Corvino
incurred significant legal fees and time spent in support of his
appeal.
V. CLAIM I
52. Corvino re-alleges and incorporates herein the allegations
referenced as if set forth herein.
53. Defendant City of Albuquerque is a public employer as
defined by NMSA 1978, 10-16C-
2C.
54. Plaintiff Corvino was a public employee of the City of
Albuquerque as defined by NMSA
1978, 10-16c-2B.
55. Corvino had a reasonable basis to believe Defendants Wolf
and Archibeque had acted
unlawfully or improperly; when he reported their misconduct to
NMLEA he acted in good
faith.
56. Corvinos actions and reporting supports good public
policy.
57. Corvinos actions and reporting of Defendants Wolf and
Archibeques conduct with the
NMLEA are activities expressly protected by sections 10-16C-2E
and 10-16C-3A and B
of the Whistleblower Protection Act.
58. The City of Albuquerque, by and through its employees
Defendants Eden, Wolf, and
Archibeque, violated the Whistleblower Protection Act by
retaliating against Corvino for his
activities by adversely affecting his employment, his working
conditions, and disciplining
him.
59. As a direct result of the City of Albuquerques illegal
retaliation against Corvino, he was,
and continues to be, damaged in an amount to be proved at trial,
which includes, but is not
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limited to: lost wages, lost overtime, humiliation including
loss of professional reputation
and standing, emotional distress and anguish, and other
compensatory damages.
VI. CLAIM IIPRIMA FACIE TORT & INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
60. Corvino re-alleges and incorporates herein the allegations
referenced as if set forth herein.
61. Defendant Archibeques conduct in retaliation against Corvino
was intentional and
motivated by an intent to injure and harm Corvino, or was in
reckless disregard of the fact
that he would be injured and harmed.
62. As the APD Academys Chief of Staff, Defendant Archibeques
conduct and actions upon
Corvino was extreme and outrageous under the circumstances and
duration.
63. Corvino was in fact injured and harmed by Defendant
Archibeques actions. As a direct and
proximate result of Defendant Archibeques actions, Corvino
experienced, and continues to
experience, severe emotional distress.
64. Defendant Archibeques conduct was unjustified, or was
without sufficient justification.
65. Defendant Archibeques conduct was outside the scope of his
duties and responsibilities as
defined by SOPs thus prohibiting application of the New Mexico
Tort Claims Act.
66. Defendant Archibeques reckless and intentional conduct was
such that imposition of
punitive damages is justified.
WHEREFORE Plaintiff John Corvino respectfully requests this
Court grant judgment in
his favor and against Defendants based on the violation of the
New Mexico Whistleblower
Protection Act, common law violations, award actual damages,
attorneys fees and costs, special
damages, and punitive damages against individual Defendant
Archibeque.
VII. JURY DEMAND
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Plaintiff respectfully requests a jury on all issues so
triable.
VIII. REQUEST FOR RELIEF
WHEREFORE, Plaintiff seeks the following relief:
I. Actual and compensatory damages sufficient to make Plaintiff
whole;
II. Punitive damages against Defendants sufficient to punish and
deter their wrongful
conduct;
III. Attorneys fees, costs, and expenses;
IV. Such other and further relief as the Court deems just and
proper.
Respectfully submitted,
/s/ Thomas R. Grover Thomas R. Grover GROVER LAW, LLC 9400 Holly
NE, Bldg. 4 Albuquerque, NM 87122 Office: (505) 695-2050 Fax: (505)
944-1073 [email protected] Attorney for Plaintiff
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EXHIBIT #1