JAMES O. BROWNING, District Judge.
For the purposes of a motion to dismiss, the Court takes the allegations in the complaint as true. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994)("The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking
Gerald alleges that, after a team practice session in August of 2009, before the physical altercation between Gerald and Locksley on which Gerald bases his claims, "Locksley physically threatened [Gerald] with bodily harm because of alleged errors or mistakes by [Gerald's] receivers during the practice and [Gerald's] coaching." SAC ¶ 14, at 2. Gerald further alleges that, on or about September 20, 2009,
SAC ¶¶ 16-19, at 3. Gerald alleges that. "[a]lthough Defendant Locksley is a Black man, he directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches." SAC ¶ 31, at 5.
On September 20, 2009, Gerald reported the incident to UNM management and the police, including Krebs. Gerald asserts that "Krebs and other UNM officials did not take appropriate measures to handle the situation." SAC ¶¶ 20-21, at 3. Krebs encouraged Gerald "to minimize and trivialize what had occurred," and suggested to Gerald "his career would not benefit if he persisted in complaining of Locksley's behavior and that he should desist from any further action in the matter and from making any statements in regard to the assault." SAC ¶¶ 22-23, at 3-4. Gerald alleges that Krebs' statement "were motivated by retaliation and the Plaintiff=s [sic] race, and; [sic] to protect himself and the University athletic program from criticism because of the incident." SAC ¶ 24, at 4. Gerald alleges that Krebs publically denied and minimized the altercation between Locksley and Gerald, initially issuing a letter of reprimand to Locksley, without imposing further discipline. See SAC ¶¶ 27-28, at 4. Gerald further alleges that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days. See SAC
Gerald was placed on administrative leave for the remainder of the football season.
SAC ¶ 35, at 5. Gerald contends that the incident has made him unmarketable in the college football coaching market. See SAC ¶¶ 38-41, at 6.
On January 5, 2010, Gerald filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). His EEOC Charge named only UNM as the respondent. See EEOC Charge at 2. Moreover, in his EEOC Charge, Gerald did not check the box for retaliation; he checked only "race" as the basis for his claims of discrimination. EEOC Charge at 2. The narrative portion of the charge lists a number of grievances and states:
EEOC Charge at 2.
On July 30, 2010, Gerald filed suit against Locksley and UNM, raising claims for assault and battery, race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 ("NMHRA"), and First-Amendment retaliation. See Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed July 30, 2010 (Doc. 1) ("Complaint"). Locksley and UNM filed a motion to dismiss Locksley's original Complaint, see Defendants' Motion to Dismiss, filed August 25, 2010 (Doc. 6), and in response,
The Defendants withdrew their original motion to dismiss, based on Gerald's decision to amend. See Notice of Withdrawal of Defendants' Motion to Dismiss, filed October 28, 2010 (Doc. 17). The Defendants filed their Motion to Dismiss Plaintiff's First Amended Complaint, filed December 6, 2010 (Doc. 23)("First Motion to Dismiss"), in which they moved the Court, pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Gerald's FAC in its entirety. The Defendants asserted that the allegations in Gerald's FAC fail to establish his claims.
On April 21, 2011, Gerald substituted attorney Santiago E. Juarez for his former counsel Dennis W. Montoya. See Notice, filed April 21, 2011 (Doc. 46). The Supreme Court of New Mexico indefinitely suspended Mr. Montoya's license to practice law, and forbade him from "provid[ing] any legal services in connection with cases in which any of his present or former clients are or were involved." In Re Dennis W. Montoya, No. 32,397, Order at 2 (N.M. Apr. 25, 2011)(Doc. 56). Mr. Juarez took over a number of cases from Mr. Montoya.
On, May 6, 2011, the Court filed its Memorandum Opinion and Order, granting the First Motion to Dismiss. See Doc. 47 ("MOO"). The Court held that, because Gerald failed to exhaust his administrative remedies, it lacked subject-matter jurisdiction over Gerald's retaliation claim and his claims against Locksley and Krebs, and the Court accordingly dismissed Gerald's retaliation claim, and his claims against Locksley and Krebs under Title VII and the NMHRA, without prejudice.
MOO at 74-75. Accordingly, the Court granted "Gerald leave to file, subject to rule 11 of the Federal Rules of Civil Procedure, a second amended complaint bringing a hostile-work-environment claim within ten days of the Court's filing this order." MOO at 103.
Also on May 6, 2011, the same day that the Court issued its MOO, the Court issued a Scheduling Order. See Doc. 48. The Scheduling Order set a June 6, 2011 deadline for Gerald to file an amended complaint. See Scheduling Order at 1 ("The Plaintiff shall be allowed until June 6, 2011 to amend the pleadings and to join additional parties in compliance with Fed. R.Civ.P. 15(a).").
On May 15, 2011, Gerald filed his SAC. Gerald did not "advance the facts alleged in his EEOC Charge in support of his hostile work environment claim." MOO at 43. Instead, Gerald filed his SAC with substantively identical factual allegations. He brings one count for "harassment, intimidation, retaliation and hostile work environment." SAC at 6.
On June 9, 2011, the Defendants filed their Motion, moving the Court to dismiss the SAC "in its entirety with prejudice." Motion at 1. The Defendants assert that, contrary to the Court's MOO, Gerald failed to add any new allegations to the SAC. Instead, Gerald reasserts "substantially identical allegations" as the Court found inadequate to state a hostile work environment claim when it dismissed the FAC. Motion at 3. The Defendants assert that the only new allegations in the SAC of any relevance to Gerald's claims or the Court's analysis are that: (i) "Defendant Krebs is an Anglo-American and the Plaintiff is Black"; (ii) "Defendant Locksley and the Plaintiff are both African-American and Defendant Krebs and the UNM administration believed that no serious discipline should be imposed because the incident involved a fight between two Black men"; (iii) "[a]lthough Defendant Locksley is a Black man, he directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches"; and (iv) "the failure of UNM to adequately discipline the Defendant was motivated by racial discrimination where UNM management believed that the Plaintiff's race made him an easy target for retaliation, intimidation and manipulation." Response
The Defendants also asset that, "[e]ven though the Court gave Plaintiff leave to amend his complaint only to add a hostile work environment claim, Plaintiff raises two claims for relief under Title VII in the SAC," both a hostile work environment and a retaliation claim. Response at 5. The Defendants contend that, because the Court previously dismissed Gerald's retaliation claim for lack of subject-matter jurisdiction, Gerald's retaliation claim "cannot be re-alleged in the SAC." Response at 5. The Defendants further assert that, because the Court held that it lacked subject-matter jurisdiction over Gerald's claims against Locksley and Krebs, Gerald should have brought his SAC against only UNM, and not against Locksley and Krebs. Finally, the Defendants note that Gerald seeks punitive damages, despite the Court's holding that he cannot seek punitive damages under Title VII.
On June 23, 2011, Gerald filed his Response to Defendants' Motion to Dismiss Plaintiff's Amended Complaint for Hostile Work Environment. See Doc. 54 ("Response"). Rather than contest that the allegations in the SAC are sufficient to survive the Defendants' Motion or that he amended his complaint in accord with the Court's MOO, Gerald attached his affidavit to his Response, in which he set forth additional allegations. Gerald states that he "has made an affidavit attesting to a hostile environment in his employment at UNM that included acts of racial discrimination, physical violence by his immediate supervisor and unfavorable treatment by UNM." Response at 1-2. In the affidavit, Gerald states:
Gerald Aff. ¶¶ 1-38, at 1-5 (paragraph numbers omitted). Gerald does not explain why he submitted an affidavit with his Response. He does not state why the Court, on a motion to dismiss, would be permitted to consider the affidavit. See Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1261 (D.N.M.2010)(Browning, J.)("In considering a motion to dismiss pursuant to rule 12(b)(6), it is improper for the Court to consider materials from outside of the pleadings."). Gerald does not explain why he did not set forth the allegations in the affidavit in his SAC. Nor does Gerald ask for leave to file an amended complaint.
Relying on the allegations in his affidavit, Gerald contends that he has adequately alleged a hostile work environment claim. See Response at 7 ("The Plaintiff's Amended Complaint for Hostile Work Environment... and the Plaintiff's Affidavit attached as Exhibit 1, provide ample evidence that he has a valid claim for a Title VII hostile work environment action."). Gerald argues that "[a] fair inference from the circumstances is that an assault by a Black man on another Black man is not worthy of severe punishment." Response at 9.
Gerald states that he does not seek relief from Locksley and Krebs. See Response at 11 ("The references to `Defendant' should not be read to imply that the Plaintiff is seeking relief from these individuals."). Gerald also states that the request for punitive damages in the SAC's prayer for relief is an inadvertent mistake. See Response at 11-12 ("[T]he Plaintiff inadvertently requested punitive damages in the Second Amended Complaint, which are not recoverable from UNM. This was a mistake and a carry-over from the previous complaints. No claim for punitive damages against any public entity is intended."). Gerald does not respond to the Defendants' challenge to his retaliation claim.
On July 11, 2011, the Defendants filed their Reply in Support of Defendants' Motion to Dismiss Plaintiff's Amended Complaint for Hostile Work Environment. See Doc. 57 ("Reply"). The Defendants contend that Gerald's affidavit is not properly before the Court. The Defendants further assert that the allegations in the affidavit are insufficient to allege a hostile work environment claim, but that, if the Court
At the July 19, 2011 hearing, the parties argued in support of the positions in their briefs. Jennifer L. Attrep, the Defendants' Counsel, argued that a reasonable inference from Gerald's failure to comply with the Court's MOO and add his allegations from the EEOC Charge into the SAC is that, subject to rule 11, he could not do so. See Transcript of Hearing at 6:9-12 (Attrep)("Tr.").
Ms. Attrep further contended that amendment is futile, because, were the Court to consider Gerald's affidavit, the allegations in the affidavit are not enough to survive a motion to dismiss. See Tr. at 16:5-6 (Attrep). She asserted that Gerald's allegations in his affidavit that Locksley threatened him do not suggest racial animus and argued that "Title VII is not a general civility code." Tr. at 10:4-20 (Attrep). Ms. Attrep contended that the allegations are similar to those the United States Court of Appeals for the Tenth Circuit found did not establish a hostile work environment in Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994).
Ms. Attrep stated that the Defendants have not conducted any discovery in this case. See Tr. at 14:23-25 (Court Attrep). Mr. Juarez similarly stated that "there's been hardly any movement at all on discovery in this case." Tr. at 15:1-3 (Court, Juarez). The deadline for discovery is November 2, 2011. See Scheduling Order at 1.
Mr. Juarez stated that he did not feel that he could, subject to rule 11 and his ethical obligation, transfer the allegations in the EEOC Charge to the SAC. See Tr. at 17:1-4 ("THE COURT: ... I assume that you didn't feel under Rule 11 or your ethical obligations that you could just transfer what was in the EEOC complaint to your Complaint. Is that correct? MR. JUAREZ: That is correct Your Honor."). Mr. Juarez stated:
Tr. at 17:24-18:8 (Juarez). Mr. Juarez first stated that he should have requested a new scheduling order when he first appeared in this case after Mr. Montoya was suspended, see Tr. at 17:9-18, (Juarez), but, after the Court noted that he was in the case when it issued its May 6, 2011 Scheduling Order, Mr. Juarez clarified that he meant that he should have requested more time when the Court issued its MOO, see Tr. at 18:25-19:24 (Court, Juarez). Mr. Juarez also stated that Gerald has moved to Maryland, complicating attorney-client communications. See Tr. at 19:18-20 (Juarez).
Mr. Juarez argued that, despite the "inartful articulation" in the SAC, Tr. at 25:21, the SAC contains sufficient allegations that, if the Court draws reasonable inferences from the allegations, Gerald is "close enough to be in the ball game." Tr. at 22:6-10 (Juarez). Mr. Juarez requested, in the alternative, that the Court give Gerald one last chance to amend his pleadings within ten days. See Tr. at 22:10-25 (Juarez)("[S]ay you've got ten days to fix it or it's gone."). Mr. Juarez stated he thought he could transfer the allegations in Gerald's affidavit to an amended complaint. See Tr. at 23:3-8 (Court, Juarez).
"Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)("[T]he party invoking federal jurisdiction bears the burden of establishing its existence."). Rule 12(b)(1) allows a party to raise the defense of the court's "lack of jurisdiction over the subject matter" by motion. Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009)(Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit has stated:
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)(quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)).
When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court's reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case's merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). "When deciding whether jurisdiction is intertwined with the merits of a particular dispute, `the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'" Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).
Under 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) (citation omitted). 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 plaintiff's favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); 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 need to set forth detailed factual allegations, but a plaintiff's burden 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, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662,
"While Rule 15 governs amendments to pleadings generally, Rule 16 governs amendments to scheduling orders." Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir.2009)(citing Fed.R.Civ.P. 16(b)). When a court has not entered a scheduling order in a particular case, rule 15 governs amendments to a plaintiff's complaint. See Fed.R.Civ.P. 15. When a scheduling order governs the pace of the case, however, amending the complaint after the deadline for such amendments implicitly requires an amendment to the scheduling order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v. Billings, 568 F.3d at 1231.
Rule 15(a) of the Federal Rules of Civil Procedure provides:
Fed.R.Civ.P. 15(a)(bold and italics in original).
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.1993). See Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir.2005)(quoting Frank v. U.S. West, Inc. and stating that resolving the issue whether to allow a plaintiff to file a supplement to his complaint is "well within the discretion of the district court"). "The ... Tenth Circuit has emphasized that `[t]he purpose of [rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'" B.T. ex rel. G.T. v. Santa Fe Pub. Schs., No. CIV 05-1165 JB/RLP, 2007 WL 1306814, at *2 (D.N.M. Mar. 12, 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.2006)). "Specifically, the ... Tenth Circuit has determined that district courts should grant leave to amend when doing so would yield a meritorious claim." Burleson v. ENMR-Plateau Tel. Co-op., No. CIV 05-0073 JB/KBM, 2005 WL 3664299, at *2 (D.N.M. Sept. 23, 2005)(Browning, J.)(citing Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.2001)).
Although rule 15(a) provides that leave to amend shall be freely given, "the district court may deny leave to amend where amendment would be futile." Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir.1999)).
It is "well settled" in the Tenth Circuit "that untimeliness alone is a sufficient reason to deny leave to amend, especially when the party filing the motion has no adequate explanation for the delay." Frank v. U.S. West, Inc., 3 F.3d at 1365-66 (internal citations omitted).
"Rule 16 only allows such amendments for `good cause,' an arguably more stringent standard than the standards for amending a pleading under Rule 15." Bylin v. Billings, 568 F.3d at 1230 (quoting Fed.R.Civ.P. 16(b)(4)). Rule 16(b)(4) states: "A schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The rule "focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment." Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d 1285, 1313 (D.N.M.2010)(Browning, J.). "Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts." Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d at 1313.
The Tenth Circuit has interpreted rule 16 as imposing a "good cause" standard to untimely motions to amend when a scheduling order governs the case. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n. 4 (10th Cir.2006). "This requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay." Minter v. Prime Equip. Co., 451 F.3d at 1205 n. 4. In Minter v. Prime Equipment Co., the Tenth Circuit recognized a "rough similarity between the `good cause' standard of Rule 16(b) and our `undue delay' analysis under Rule 15." Minter v. Prime Equipment Co. See 451 F.3d at 1205 n. 4.
Both Title VII and NMHRA claims must be administratively exhausted before being brought in federal court. Title VII creates a work-sharing deferral system between the EEOC and the states that have their own employment discrimination legislation. See 42 U.S.C. § 2000e-5(c), (d). In the states that possess their own employment discrimination legislation, the EEOC must generally "defer" to state or local remedies. EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441, 447 (2d Cir.1995)(quoting 42 U.S.C. § 2000e-5(c), (d)). The NMHRA places New Mexico among those states that have their own employment discrimination legislation and contact agencies. See 29 C.F.R. § 1601.74 (2005). In New Mexico, a complainant can, upon meeting filing requirements, proceed with his or her grievance either through the EEOC or through the New Mexico Human Rights Division ("NMHRD"). Mitchell-Carr v. McLendon, 127 N.M. 282, 286-87, 980 P.2d 65, 69-70 (1999). "In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Once a person elects to proceed with his or her complaint under state law, the NMHRA controls the grievance procedures for resolving the complaint. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 109, 122 S.Ct. 2061.
The NMHRA makes it an unlawful discriminatory practice for
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. at 382, 872 P.2d at 355. The NMHRA provides:
NMSA 1978, § 28-1-13A.
To bring an NMHRA suit in district court, a plaintiff is required to exhaust the administrative grievance process with respect to all defendants named in the district-court lawsuit. See Luboyeski v. Hill, 117 N.M. at 383, 872 P.2d at 356 ("Since [the plaintiff] has not gone through the administrative process that is prerequisite to suing Locksley and Krebs under the Human Rights Act, we affirm the trial court's order dismissing those defendants."). Accordingly, in Luboyeski v. Hill, the Supreme Court of New Mexico affirmed a trial court's dismissal of respondents who were not named in the administrative proceeding, but who were added to the appeal to the district court. See 117 N.M. at 383, 872 P.2d at 356.
As this Court has previously acknowledged, the Supreme Court of New Mexico allows for personal liability under the NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. CIV 08-0756 JB, 2009 WL 2482170, at *7 (D.N.M. July 28, 2009)(Browning, J.). The NMHRA defines
Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193.
Title VII prohibits an employer from "fail[ing] or refus[ing] to hire or... discharg[ing] any individual, or otherwise... discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "Under long-standing [Tenth] [C]ircuit precedent, supervisors and other employees may not be held personally liable under Title VII." Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1083 n. 9 (10th Cir.2007). See Haynes v. Williams, 88 F.3d 898, 899 (10th Cir.1996)("The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act."). Before commencing a Title VII action in federal court in a state with an agency empowered to investigate employment discrimination, like the New Mexico Department of Labor, Human Rights Division, "a plaintiff first must exhaust administrative remedies by filing a charge of discrimination with the EEOC within 300 days of the allegedly unlawful employment practice." Castaldo v. Denver Public Sch., 276 Fed.Appx. 839, 841 (10th Cir.2008)(citing 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a); Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 & n. 3 (10th Cir.2007)(explaining filing times in deferral states, which are those states that have "an agency empowered to investigate employment discrimination")). To exhaust administrative remedies, an individual claimant must: (i) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge; and (ii) receive notice of the right to sue. See 42 U.S.C. §§ 2000e-5(b), (c), (e), (f)(1); Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
To be timely, a plaintiff must file the charge with the EEOC within 180 days or with a state agency within 300 days of the complained-of conduct. See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.13 (1998); Simms v. Okla. ex. rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d at 1327; Gunnell v. Utah Valley St. Coll., 152 F.3d 1253, 1260 n. 3 (10th Cir.1998). Once an individual receives notice of the right to sue, he or she has ninety days in which to file suit. See 42 U.S.C. § 2000e-5(f)(1).
In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action. See Jones v. United Parcel Serv., Inc., 502 F.3d at 1183; Alcivar v. Wynne, 268 Fed.Appx. at 753 ("The Tenth Circuit has consistently held that `exhaustion ... is a jurisdictional prerequisite to suit under Title VII — not merely a condition precedent to suit.'")(quoting Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005)); Ransom v. U.S. Postal Service, 170 Fed.Appx. 525, 527 & n. 2 (10th Cir.2006)("[A] claimant under the Rehabilitation Act ... is required to present her claims to the appropriate EEO agency before filing suit.")(citing 5 U.S.C. § 7702(a)(2)); Wells v. Shalala, 228 F.3d 1137, 1142-43 (10th Cir.2000)); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996)("Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII."); Romero v. Union Pac. R.R., 615 F.2d 1303, 1303 (10th Cir. 1980).
Without such a filing, federal courts lack subject-matter jurisdiction to entertain discrimination claims under that statutes, and a rule 12(b)(1) motion to dismiss is procedurally proper. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997); Carmody v. SCI Colo. Funeral Servs., Inc., 76 F.Supp.2d 1101, 1103-04 (D.Colo.1999).
"A plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC." MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). "We liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. "This more lenient pleading standard contemplates the fact that administrative charges of unlawful employment practices are regularly filled out by employees who do not have the benefit of counsel." Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 667 (10th Cir. 2005). "[T]he charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. "The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186 (citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir.1998)). "The presumption may be rebutted, however, if the text of the charge clearly sets forth the basis of the claim." Jones v. United Parcel Service, Inc., 502 F.3d at 1186.
Liberally construing EEOC complaints requires courts to look beyond the formalities of the complaint form. The Tenth Circuit held in Jones v. United Parcel Service, Inc. that, while Jones checked "no" to the questions, "[d]o you believe that the employer regarded you as disabled?" and "did you advise you employer that you required an accommodation?", Jones' allegations that UPS interfered with a medical evaluation to ensure Jones was not released to return to work, that UPS did not permit Jones to return to work despite releases from two doctors, and that Jones checked a box for retaliation, should have triggered an administrative investigation into whether UPS discriminated against Jones, because he was disabled and whether UPS retaliated against him. 502 F.3d at 1182, 1186-87. Because Jones checked "no" in response to the question whether he advised his employer he needed accommodation and because the text of the charge did not contain facts that would prompt an investigation of such a claim, the Tenth Circuit held that Jones did not exhaust his administrative remedies with respect to his failure-to-accommodate claim. 502 F.3d at 1187.
In Duncan v. Manager Department of Safety, 397 F.3d 1300 (10th Cir.2005), a former police officer filed an EEOC charge against the city on April 14, 1998, and checked the box for retaliation. See 397 F.3d at 1314. The officer alleged a series of acts before the date that the EEOC charge was filed, which were supposedly in retaliation for her use of the complaint process. See 397 F.3d at 1314. The Tenth Circuit held that none of the actions that the officer alleged in her EEOC charge were sufficient to support a retaliation claim. See 397 F.3d at 1314. The Tenth Circuit noted that her allegation in her complaint that in August of 1998 — months after filing her EEOC complaint — she was transferred to the police academy in retaliation for filing her original EEOC charge was severe enough to support a retaliation claim. See 397 F.3d at 1314. The Tenth
In Annett v. University of Kansas, 371 F.3d 1233 (10th Cir.2004), the Tenth Circuit declined to consider Annett's contention that receiving the position of adjunct lecturer versus adjunct professor constituted a retaliation action, because she failed to exhaust her administrative remedies. See 371 F.3d at 1238. The Tenth Circuit considered Annett's charge of discrimination filed September 6, 2000, and her "complaint narrative" submitted on May 31, 2000, and found no reference to a distinction between "lecturer" and "professor" as probative of discrimination or retaliation. 371 F.3d at 1238. Annett's complaint stated: "I was given an Adjunct faculty position, but no Principal Investigator status, which prevents me from obtaining grants." 371 F.3d at 1238. Annett's complaint narrative stated: "My own position as an Adjunct Faculty member at KU was downgraded to prevent me from submitting grants that could act as an alternative source of income." 371 F.3d at 1238. The Tenth Circuit held that it could not conclude "that this sentence represents the distinction between being appointed an adjunct lecturer versus an adjunct professor in 1999 or 2000." 371 F.3d at 1238. Furthermore, the Tenth Circuit noted that it "lack[ed] jurisdiction to review Title VII claims that are not part of a timely-filed EEOC charge," including actions that occurred after the charge was filed. 371 F.3d at 1238 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799).
Annett v. Univ. of Kansas, 371 F.3d at 1238 (internal quotations and citations omitted). Thus, the Tenth Circuit dismissed Annett's claim for failure to exhaust administrative remedies.
Before 2002, under the "continuing violation" theory, the Tenth Circuit recognized a limited exception to the exhaustion requirement "when the unexhausted claim is for discrimination like or reasonably related to the allegations of the EEOC charge." Simms v. Okla. ex. rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d at 1327 (internal citations and quotations omitted). The Tenth Circuit "construed the `reasonably related' exception to include most retaliatory acts subsequent to an EEOC filing." 165 F.3d at 1327 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799). In Martinez v. Potter, however, the Tenth Circuit noted that the "Supreme Court's recent pronouncement in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061,
347 F.3d at 1210 (internal citations and quotations omitted).
Thus, under National Railroad Passenger Corp. v. Morgan, each discrete act of discrimination must be administratively exhausted. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114, 122 S.Ct. 2061 (internal citations and quotations omitted). In National Railroad Passenger Corp. v. Morgan, this rule applied to bar a plaintiff from suing on claims for which no administrative remedy had been sought when those incidents of which the plaintiff complained occurred more than 300 days before the filing of the plaintiff's EEO complaint. See Martinez v. Potter, 347 F.3d at 1210. "The rule is equally applicable, however, to discrete claims based on incidents occurring after the filing of Plaintiff's EEO complaint." Martinez v. Potter, 347 F.3d at 1210-11. The Tenth Circuit has stated: "Our decisions have unambiguously recognized Morgan as rejecting application of the continuing violation theory." Martinez v. Potter, 347 F.3d at 1211 (internal quotations omitted).
In Jones v. United Parcel Service, the Tenth Circuit explained how the requirement that plaintiffs must exhaust each discrete claims works in conjunction with courts liberally construing EEOC charges. See 502 F.3d at 1186.
Jones v. United Parcel Service, 502 F.3d at 1186 (citations omitted).
This Court has previously held that these principles demand that an act which occurs subsequent to the filing of the formal EEOC charge would not be included
A different rule applies to hostile work environment claims, for which "the continuing violation doctrine remains viable." Semsroth v. City of Wichita, 304 Fed.Appx. 707, 722 (10th Cir.2008). An employer creates a hostile work environment when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998)(quotations omitted). Under National Railroad Passenger Corp. v. Morgan, a series of events that constitute a hostile work environment claim are considered one unlawful action. See West v. Norton, 376 F.Supp.2d 1105, 1129 (D.N.M.2004)(Browning, J.). "Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115, 122 S.Ct. 2061 (internal citations and quotations omitted). An "unlawful employment practice" that constitutes a hostile work environment thus cannot be said to occur on any particular day, but rather occurs over a series of days or years. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115, 122 S.Ct. 2061 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Accordingly, so long as one of the incidents included within the claim of hostile environment occurred within the prescribed time limit, other conduct that occurred outside of the proscribed time period, but contributing to the hostile work environment, is not time barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 105, 122 S.Ct. 2061 (holding "that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period"); West v. Norton, 376 F.Supp.2d at 1129.
In National Railroad Passenger Corp. v. Morgan, the Supreme Court of the United States provided three factors courts may consider to determine if "a series of separate acts ... collectively constitute one `unlawful employment practice.'" 536 U.S. at 117, 122 S.Ct. 2061 (quoting 42 U.S.C. § 2000e-5(e)(1)). "[A] series of alleged events comprises the same hostile environment where `the preand post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.'"
In National Railroad Passenger Corp. v. Morgan, the Supreme Court addressed whether an EEOC charge alleging the plaintiff was "consistently harassed and disciplined more harshly than other employees on account of his race" was part of the same hostile work environment claim as "evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets." 536 U.S. at 105, 120, 122 S.Ct. 2061. While expressly declining to make a judgment on the merits of the plaintiff's claims, the Supreme Court found it could not say that these were "not part of the same actionable hostile environment claim." 536 U.S. at 121, 122 S.Ct. 2061.
In Duncan v. Manager, Dep't of Safety, City & Co. of Denver, the Tenth Circuit addressed a plaintiff's hostile environment claim alleging "three groups of acts that plausibly took place during the filing period: (1) the harassing statements by Sgt. Andrews; (2) the spreading of rumors by Lt. Leone; and (3) the anonymous magazine article placed in her box and the theft of a notebook by an unknown perpetrator." 397 F.3d at 1309. The Tenth Circuit "examin[ed] the acts in the filing period and determin[ed] what acts outside of the filing period [we]re related by type, frequency, and perpetrator. The entire range of related acts constitute[d] the hostile work environment underlying Ms. Duncan's claim." 397 F.3d at 1309. The Tenth Circuit found:
Duncan v. Manager, Dep't of Safety, City & Co. of Denver, 397 F.3d at 1309.
While failure to exhaust administrative remedies is a jurisdictional bar to suit, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393,
Though not jurisdictional, the time limit is not an arbitrary barrier. It is designed to give an agency timely notice of potentially illegal conduct, to discover and correct its own errors, and possibly to conciliate the claim. See Sampson v. Civiletti, 632 F.2d at 863. An employee who fails to comply with the limitation period is barred from seeking judicial relief in federal court, absent a defense of equitable tolling. See Davis v. United States Postal Serv., 142 F.3d at 1339; Wilson v. West, 962 F.Supp. 939, 944 (S.D.Miss.1997).
"Equitable exceptions, however, have been narrowly construed." Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir.2003). See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.2002)(stating that "federal courts have typically extended equitable relief only sparingly"). The Tenth Circuit "has generally recognized equitable tolling of Title VII periods of limitation only if circumstances rise to the level of active deception which might invoke the powers of equity to toll the limitations period." Montoya v. Chao, 296 F.3d at 957. See Godwin v. Sw. Research Inst., 237 Fed.Appx. 306, 307 (10th Cir. 2007)("Our precedent requires that an ADEA plaintiff demonstrate `active deception' on the part of an employer, the EEOC, or the court."); Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1269 n. 2 (10th Cir.1996)(noting, in a Title VII case, that "extraordinary circumstances" are "necessary to justify equitable tolling under established Tenth Circuit precedent."). "Equitable tolling may be appropriate where a plaintiff has been lulled into inaction by an employer's `deliberate design... or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 Fed. Appx. 842, 847 (10th Cir.2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the employer's subjective discriminatory purpose." Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235 (10th Cir.1999) (citation omitted).
The decision whether to equitably toll the limitations period rests within the district court's sound discretion. See Purrington v. Univ. of Utah, 996 F.2d 1025, 1030 (10th Cir.1993). In Castaldo v. Denver Public Schools, 276 Fed.Appx. 839 (10th Cir.2008), the Tenth Circuit found that the district court did not abuse its discretion when it chose not to apply equitable tolling to the plaintiff's EEOC charge when the plaintiff alleged: (i) that his employer did not post notices regarding the filing of EEOC charges; (ii) that he was too incapacitated by his shoulder injuries to file an EEOC charge; and (iii) that he was proceeding pro se. See 276 Fed.Appx. at 841. The Tenth Circuit found no error in the district court's conclusion that the failure to post EEOC notices was not a sufficient justification for equitable tolling. See 276 Fed.Appx. at 841. See also Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344,
In Godwin v. Southwest Research Institute, the Tenth Circuit held that the district court did not abuse its discretion in refusing to employ equitable tolling when the plaintiff misaddressed his EEOC submission, which arrived forty-four days after the time limit had expired. See 237 Fed.Appx. at 307-08. In Baker v. Perfection Hy-Test, No. 95-6091, 1996 WL 1162 (10th Cir. Jan. 2, 1996), the Tenth Circuit held that there was no active deception sufficient to toll the 300-day deadline where the plant manager of the plaintiff's employer told the plaintiff, after his demotion, that "restructuring was happening `all over the country,' that plaintiff `couldn't sue,' [and] that he might try but he `wouldn't get to first base.'" 1996 WL 1162, at *2. The Tenth Circuit found that the statements "at most expressed an opinion concerning plaintiff's likelihood of success." 1996 WL 1162, at *7.
"Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin." Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)(citing 42 U.S.C. §§ 2000e-2, 2000e-3). "Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007)(Browning, J.)(quoting 42 U.S.C. § 2000e-2(a)(1))(internal quotes and alterations omitted). With the 1972 amendments to the statute, Title VII's protections apply to federal employees as well as to employees of private concerns. See Brown v. Gen. Servs. Admin., 425 U.S. at 825-26, 96 S.Ct. 1961 (citing 42 U.S.C. § 2000e(b)).
Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (D.C.Cir.2009)(citing Jordan v. Alternative Res. Corp., 458 F.3d 332, 346-47
"To establish a prima facie case of hostile work environment harassment, a plaintiff must show that `under the totality of circumstances [(i)] the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and [(ii)] the harassment was racial or stemmed from racial animus.'" Bloomer v. United Parcel Serv., Inc., 94 Fed.Appx. 820, 825 (10th Cir.2004)(quoting Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998)). See Carter v. Mineta, 125 Fed.Appx. 231, 238 (10th Cir.2005); Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 671 (10th Cir.2004). To establish a hostile-work environment claim, "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Davis v. U.S. Postal Serv., 142 F.3d at 1341 (internal citations and quotations omitted). "A discriminatory and abusive environment must affect the employee's work environment so substantially as to make it intolerable for her to continue." Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.1996)(holding that a work environment did not contain "pervasive" harassment when the plaintiff made general allegations of frequent "sexual slurs" and the only specific incident cited involved a co-worker grabbing the plaintiff).
"The mere utterance of a statement which `engenders offensive feelings in an employee' would not affect the conditions of employment to a sufficient[ly] significant degree to violate Title VII." Gross v. Burggraf Construction Co., 53 F.3d 1531, 1537 (10th Cir.1995)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(alteration in the original)). A plaintiff must allege more than "`a few isolated incidents of racial enmity' or `sporadic racial slurs.'" Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005)(quoting Bolden v. PRC, Inc., 43 F.3d at 551). "Instead, `there must be a steady barrage of opprobrious racial comments.'" Chavez v. Mexico, 397 F.3d at 832 (quoting Bolden v. PRC, Inc., 43 F.3d at 551).
The Tenth Circuit has stated that "[p]ervasiveness and severity are independent and equal grounds" upon which a plaintiff may establish this element of a hostile environment claim. Witt v. Roadway Express, 136 F.3d at 1432 (addressing a hostile environment claim under 42 U.S.C. § 1981). See Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir.1997)(citing Durham v. Xerox Corp., 18 F.3d 836, 838-39 (10th Cir.1994), for the proposition that "standards and burdens under § 1981 are the same as those under Title VII"). Moreover, the plaintiff must demonstrate that the work environment was objectively and subjectively offensive, but need "not demonstrate psychological harm, nor is she required to show that her work suffered as a result of the harassment." Walker v. United Parcel Service of Am., 76 Fed.Appx. 881, 885
The Court dismisses the SAC. The Court lacks subject-matter jurisdiction over Gerald's retaliation claim. Gerald has not cured the defects that the Court identified in its MOO with a hostile work environment claim. The Court grants Gerald leave to amend his complaint to attempt to plead a hostile work environment claim, because Gerald's allegations in his affidavit, in conjunction with the allegations in his SAC, plausibly allege a hostile work environment claim.
In its MOO, the Court dismissed without prejudice Gerald's retaliation claim and his claims against Krebs and Locksley for lack of subject-matter jurisdiction. Gerald did not name Krebs or Locksley or complain of retaliation in his EEOC Charge. See EEOC Charge at 2. The exhaustion of administrative remedies is a "jurisdictional prerequisite." Jones v. Runyon, 91 F.3d at 1399 ("Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII."). Because Gerald failed to exhaust his administrative remedies for his retaliation claim, and for his claims against Krebs and Locksley, the Court lacks subject-matter jurisdiction over these unexhausted claims. Nonetheless, Gerald improperly brings these claims again in his SAC. Gerald concedes that he cannot seek relief against Locksley and Krebs. See Response at 11. The Court therefore, again, dismisses these claims without prejudice for lack of subject-matter jurisdiction. See Brereton v. Bountiful City Corp., 434 F.3d at 1216 (holding that dismissal for lack of subject-matter jurisdiction must be without prejudice, because "the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims." (emphasis in original)); Martinez v. Richardson, 472 F.2d at 1126 ("It is fundamental ... that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore dismissal of the ... claim must be without prejudice.").
Gerald refers to Krebs as "Defendant Krebs" and Locksley as "Defendant Locksley" and throughout the SAC. SAC ¶¶ 4, 6, 8, 13, 15, 19-31, 33-37, 39, 42-43, at 2-6. The Defendants assert that the Court held it lacked subject-matter jurisdiction over Gerald's Title VII claims against Locksley and Krebs, and that Gerald therefore may not assert claims against them in the SAC. The Court agrees that Gerald may not assert a hostile work environment against Locksley and Krebs. Gerald has not exhausted his administrative remedies against Locksley or Krebs. See MOO at 43-47. Moreover,
Gerald acknowledges that, because the Court has dismissed his claims against Locksley and Krebs, he cannot seek relief against them. He asserts:
Response at 11. Because Gerald did not exhaust his administrative remedies with respect to Locksley and Krebs, the Court will dismiss the claims against them without prejudice.
Despite the Court dismissing Gerald's retaliation claim in his FAC for lack of subject-matter jurisdiction, Gerald appears to assert a retaliation claim in the SAC. Gerald titles the sole count in his SAC "harassment, intimidation, retaliation and hostile work environment." SAC at 6 (emphasis added). He alleges that "the retaliation, harassment and intimidation by UNM and Athletic Director Krebs were not desired or welcomed by the Plaintiff," and that the "retaliation, harassment and intimidation by UNM and Defendant Krebs was based in part or in entirety on the Plaintiff's status as an African-American, and were done because Defendant UNM and Defendant Krebs believed that he could be intimidated because of his race." SAC ¶¶ 42-43, at 6 (emphasis added).
The Defendants argue that, because the Court held it lacks subject-matter jurisdiction over Gerald's retaliation claims, Gerald cannot reassert that claim.
To bring a retaliation claim before this Court, Gerald must have first presented the claim to the EEOC. "A failure to file an administrative ... claim before bringing suit is jurisdictionally fatal." Mitchell v. City and County of Denver, 112 Fed. Appx. at 666. The Court must determine if a retaliation claim "can reasonably be expected to follow the charge of discrimination submitted to the EEOC." MacKenzie v. City & County of Denver, 414 F.3d at 1274. "We liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. "This more lenient pleading standard contemplates the fact that administrative charges of unlawful employment practices are regularly filled out by employees who do not have the benefit of counsel." Mitchell v. City and County of Denver, 112 Fed.Appx. at 667. "[T]he charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186.
First, Gerald did not check the box for "retaliation" on his EEOC Charge, nor did he set forth allegations in the narrative section that would lead the EEOC to investigate retaliation. See EEOC Charge at 2. "The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box." Jones v. United Parcel Serv., Inc., 502 F.3d at 1186 (citing Gunnell v. Utah Valley State College, 152 F.3d at 1260). "The presumption may be rebutted, however, if the text of the charge clearly sets forth the basis of the claim." Jones v. United Parcel Service, Inc., 502 F.3d at 1186.
In Annett v. University of Kansas, 371 F.3d 1233 (10th Cir.2004), the Tenth Circuit declined to consider Annett's contention that receiving the position of adjunct lecturer versus adjunct professor constituted a retaliation action, because she failed to exhaust her administrative remedies. See 371 F.3d at 1238. The Tenth Circuit considered Annett's charge of discrimination filed September 6, 2000, and her "complaint narrative" submitted on May 31, 2000, and found that the absence of a distinction between "lecturer" and "professor" was probative of her failure to exhaust a discrimination or retaliation claim. 371 F.3d at 1238. Annett's complaint stated: "I was given an Adjunct faculty position, but no Principal Investigator status, which prevents me from obtaining grants." 371 F.3d at 1238. Annett's complaint narrative stated: "My own position as an Adjunct Faculty member at KU was downgraded to prevent me from submitting grants that could act as an alternative source of income." 371 F.3d at 1238. The Tenth Circuit held that it could not conclude "that this sentence represents the distinction between being appointed an adjunct lecturer versus an adjunct professor in 1999 or 2000." 371 F.3d at 1238. Furthermore, the Tenth Circuit noted that it "lack[ed] jurisdiction to review Title VII claims that are not part of a timely-filed EEOC charge," including actions that occurred after the charge was filed. 371 F.3d at 1238 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799).
Annett v. Univ. of Kansas, 371 F.3d at 1238 (internal quotations and citations omitted). The Tenth Circuit therefore dismissed Annett's claim for failure to exhaust administrative remedies.
In Zinke v. Slater, 34 Fed.Appx. 667 (10th Cir.2002), the Tenth Circuit affirmed a district court's dismissal of a plaintiffs' hostile work environment and discrimination claims, because she failed to exhaust her administrative remedies. The Tenth Circuit held that she did not overcome the presumption her failure to check boxes in her EEO complaint created:
34 Fed.Appx. at 672-73.
Like the Plaintiffs in Zinke v. Slater, Gerald does not overcome the presumption his failure to check the box. In the section titled "DISCRIMINATION BASED ON (Check appropriate box(es))," Gerald checked only the box for "race," and he did not check the box for "retaliation." In the section titled "DATE(S) DISCRIMINATION TOOK PLACE," Gerald indicated that the earliest date was August 13, 2009 and the latest date was September 20, 2009, the date of the altercation. In the narrative portion of the EEOC Charge, Gerald wrote:
EEOC Charge at 2. Gerald's factual description of the discrimination claim omits any reference to retaliation against him for protected activity. At the January 27, 2011 hearing, Gerald asserted that his statement that he "reported this to management and nothing was done" would reasonably lead the EEOC to investigate a retaliation claim. His assertion that "nothing was done" does not sound in retaliation, because it does not suggest that Gerald suffered an adverse employment action in response to his protected activity. A "reasonable reader would understand that [Gerald's] mention of management's inaction as merely an "explanation leading up to the gist of h[is] complaint of discrimination. Gunnell v. Utah Valley State Coll., 152 F.3d at 1260.
The Court thus concludes that Gerald failed to exhaust his administrative remedies, because the Court's review of Gerald's EEOC Charge reveals that Gerald neither checked the retaliation box nor presented any information that could reasonably be expected to lead the EEOC to investigate a retaliation claim. Because Gerald did not exhaust his administrative remedies for his retaliation claim, the Court has no subject-matter jurisdiction over it. The Court therefore dismisses Gerald's retaliation claim without prejudice. See Echols v. Today's Staffing, 35 Fed.Appx. 776, 777 (10th Cir.2002)(affirming dismissal of race discrimination claim where EEOC charge provided no suggestion of a racial discrimination theory).
Gerald fails to allege facts that, taken as true, plausibly allege a hostile work environment. See Robbins v. Oklahoma,
To prevail on a discrimination claim based on a hostile work environment,
Faragalla v. Douglas County Sch. Dist. RE 1, 411 Fed.Appx. 140, 151-52 (10th Cir.2011). Taken as true, Gerald's allegations in his SAC, however, fall short of plausibly alleging a hostile work environment.
SAC ¶¶ 13-32, at 2-5 (paragraph numbers omitted). Count I, the sole count in the SAC, states in its entirety:
FAC ¶¶ 42-45, at 6-7 (paragraph numbers omitted). Thus, beyond conclusory allegations of discrimination, Gerald alleges that: (i) Locksley threatened him in August 2009; (ii) Locksley physically attacked him in September 2009; (iii) when he reported the attack, Krebs encouraged him to minimize the incident; and (iv) Locksley directs his anger and abuse at black coaches over white coaches. These additional allegations are not sufficient to support a hostile work environment claim.
The only material addition Gerald made to the SAC is that he notes the race of the parties, and he alleges that Locksley "directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches." SAC ¶ 31, at 5. The Court granted Gerald leave to amend his pleading because "the allegations in Gerald's EEOC Charge, combined with his allegations that Locksley threatened, hit, and choked him, may, under the totality of the circumstances, amount to a hostile work environment." MOO at 74. In the EEOC Charge, Gerald alleges that he was "subjected ... to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning [his] decisions, and cursing [him] in front of [his] peers and students." EEOC Charge at 2. The Court stated in its MOO that
MOO at 74. Instead of adding allegations about of other threats and abuse and public humiliation in front of his peers and students, Gerald added a conclusory assertion of disparate treatment. This sole addition is insufficient to overcome the deficiencies the Court identified in its MOO.
Gerald's new allegations repair one of the issues the Court identified with his FAC. In its MOO, the "Court notes that Gerald's allegations against Locksley nowhere mention race or suggest racial animus." MOO at 62. The Court concluded that "Gerald's FAC ... reveals no suggestion that the altercation was `racially
Gerald's disparate treatment allegation does not, however, remedy the other shortcomings the Court identified in Gerald's pleadings: a threat combined with a single incident of physical violence in the realm of football, which Gerald was encouraged to minimize, does not amount to a hostile work environment. To plead a hostile work environment claim, Gerald must set forth allegations making plausible harassment that "was pervasive or severe enough to alter the terms, conditions, or privilege of employment." Bloomer v. United Parcel Serv., Inc., 94 Fed.Appx. at 825 (quoting Witt v. Roadway Express, 136 F.3d at 1432). The Tenth Circuit has stated that "[p]ervasiveness and severity are independent and equal grounds" upon which a plaintiff may establish this element of a hostile environment claim. Witt v. Roadway Express, 136 F.3d at 1432. Relevant considerations to determine if an environment is objectively hostile include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. at 787-88, 118 S.Ct. 2275 (quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367)(internal citations and quotations omitted).
Again, Gerald alleges essentially four incidents in support of his hostile work environment claim: he contends that Locksley threatened him, that Locksley attacked him, that Locksley treated black coaches worse than white coaches, and that the Krebs discouraged Gerald from pursuing his grievance against Locksley. Gerald thus complains of only a few, discrete incidents. The small number of incidents on which Gerald bases his claims is not fatal if the incidents are adequately severe. "[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991)(citing King v. Bd. of Regents, 898 F.2d 533, 537 (7th Cir.1990)). There is no minimum number of incidents or pattern of behavior that Gerald must allege. In Rocha Vigil v. City of Las Cruces, 119 F.3d 871 (10th Cir.1997), the Tenth Circuit stated:
119 F.3d at 873. While there is no minimum number of incidents, where a plaintiff alleges few incidents, they must be severe to establish a hostile work environment. See, e.g., Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1175 (10th Cir.1996)(holding that one isolated comment and the use of the term "girlie," "although regrettable, do not demonstrate that the work environment ... was `permeated with discriminatory intimidation, ridicule, and insult'"); Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.)(holding single incident of sexual harassment was neither sufficiently pervasive nor severe to constitute a hostile work environment), cert. denied, 519 U.S. 983, 117 S.Ct. 437, 136 L.Ed.2d 335 (1996); Gross v. Burggraf Construction Co., 53 F.3d 1531, 1547 (10th Cir.1995)(holding one single statement that could be construed as gender-based and hostile was insufficient to demonstrate hostile work environment under Meritor Sav. Bank, FSB v. Vinson); Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994)(holding that only two overtly racial comments and one arguably racial remark over the course of the plaintiff's eight years of employment did not constitute pervasive conduct), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995).
In Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir.2000), in an opinion authored by Chief Judge Alex Kozinski, the United States Court of Appeals for the Ninth Circuit held that a single incident in which a fellow employee touched the plaintiff's stomach and then her breast under her sweater, while very offensive, did not create a hostile work environment, particularly given that the city took prompt steps to remove the fellow employee from the workplace. The Ninth Circuit stated:
229 F.3d at 926. Rape and other forms of severe sexual assault are the archetypical examples of single incidents which can establish a hostile work environment. See, e.g., Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th Cir.2002)("A single `incident' of harassment — and we assume arguendo that three rapes in the course of one evening constitutes a `single' incident — can support a claim of hostile work environment because the `frequency of the discriminatory conduct' is only one factor in the analysis." (citations omitted)); Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir.2001)("Although a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious. We have no doubt a single incident of rape can satisfy the first prong of employer liability under a hostile work environment theory." (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995)("[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability."), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998))); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243-44 (10th Cir.2001)(finding a hostile work environment in a single incident where an inmate "knocked [the plaintiff] to the ground, undressed her and digitally penetrated her, bit and choked her, and repeatedly threatened to kill her."); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998)(finding a "single incident of physically threatening conduct," in which a customer pulled his waitress by the hair, grabbed and placed his mouth on her breast, severe enough to create an actionable hostile work environment).
In Lockard v. Pizza Hut, Inc., the Tenth Circuit held that a single sexual assault could establish a hostile work environment. Customers sexually assaulted the plaintiff after her supervisor insisted she wait on them:
162 F.3d at 1067 (citations to the record omitted). At trial, the district court denied the defendants' motion for judgment as a matter of law, and the defendants appealed, arguing in part that the plaintiff has not demonstrated "that she suffered harassment sufficiently severe or pervasive to create an actionable hostile work environment." 162 F.3d at 1068. The Tenth Circuit affirmed, stating:
162 F.3d at 1072.
The Tenth Circuit returned to the question whether a single incident can establish a hostile work environment in Turnbull v. Topeka State Hospital. In that case, the Tenth Circuit reversed a district court's judgment as a matter of law that the plaintiff had not presented evidence establishing a hostile work environment. A psychologist employed at a state mental hospital sued the hospital and state under Title VII for sexual harassment after a patient sexually assaulted her. The hospital had a history of patients "sexual[ly]
After a jury found a hostile work environment, the trial court entered judgment as a matter of law for the defendant. The Tenth Circuit reversed, holding the verdict was reasonable. The Tenth Circuit stated that, "[w]hile there was only one incident, it was objectively abusive, dangerous, and humiliating, and Dr. Turnbull was so traumatized she was unable to return to work thereafter." 255 F.3d at 1243-44.
Courts rarely find limited incidents of physical violence without a sexual element to establish a hostile work environment. In Cooper v. American Airlines, Inc., 213 Fed.Appx. 714 (10th Cir.2007), the Tenth Circuit held that a single union-related physical assault was insufficient to make out a prima facie case of hostile work environment under Title VII. The case involved a physical attack on the plaintiff that included hitting him, and "pressing and bumping and humping" his leg:
213 Fed.Appx. at 715-16 (citations to the record omitted). The Tenth Circuit "agree[d] and affirm[ed] the district court's disposition," which "first stated that whether the harassment was based on or motivated by race was `thin at best,'" and held that "the harassment did not affect a term or condition of Mr. Cooper's employment and did not constitute the `steady barrage of opprobrious racial comment as would offend Title VII.'" 213 Fed. Appx. at 716 (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981)). The Tenth Circuit also agreed that, "considering whether American `knew or should have known about the conduct and failed to stop it,' the court determined that American had not been negligent but had acted reasonably in responding to the incident." 213 Fed.Appx. at 716 (quoting Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir.2001)).
Similarly, in Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir.2008), the United States Court of Appeals for the Second Circuit affirmed the district court's grant of summary judgment, holding that a
548 F.3d at 73. The plaintiff also alleged other incidents in his complaint that he did not administratively exhaust, including "that Sacco has `verbally harassed' him since 1999, ha[d] `subjected him to disparate treatment by denying him approved lunch breaks and assistance in performing work duties,' and ha[d] retaliated against him for complaining about his treatment." 548 F.3d at 73. The Second Circuit held that this incident was insufficient to establish an adverse employment action in support of a discrimination claim:
548 F.3d at 78-79.
Like the physical attack in Cooper v. American Airlines, Inc., in which the plaintiff alleged that he was punched and his leg was "press[ed] and bump[ed] and hump[ed]," Gerald's allegations of a threat, being hit and choked, and the Defendants' response does not rise to the level of a hostile work environment, because "the harassment did not affect a term or condition of [Gerald's] employment." 213 Fed. Appx. at 716. Moreover, the Tenth Circuit agreed that, despite the plaintiff's allegations that the attacker and other employees made "African gibberish" noises and chanted derogatory racial slurs, "whether the harassment was based on or motivated by race was `thin at best.'" 213 Fed.Appx. at 716 (citations omitted). While Gerald adds the allegation that Locksley directed abuse at black coaches, Gerald also alleges that Locksley's dissatisfaction with Gerald's and the team's performance motivated his threats and attack, undermining the cogency of his contention that racism motivated Locksley's actions.
Moreover, the Defendants' discipline of Locksley ameliorated whatever affect Locksley's alleged actions had on Gerald's working conditions. While Gerald alleges that Krebs initially publically denied and minimized the altercation between Locksley and Gerald, and issued a letter of reprimand to Locksley, he further alleges that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days. Gerald provides no basis for his assertion that Locksley's punishment was insufficient to deter further acts of violence. The Defendants' "response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff's working conditions, as [Locksley] was eventually disciplined." Mathirampuzha v. Potter, 548 F.3d at 79.
The Court grants Gerald leave to file a second amended complaint for a hostile work environment claim. "The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). "The... Tenth Circuit has emphasized that `[t]he purpose of [rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'" B.T. ex rel. G.T. v. Santa Fe Pub. Schs., No. CIV 05-1165 JB/RLP, 2007 WL 1306814, at *2 (D.N.M. Mar. 12, 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.2006)). The Tenth Circuit has interpreted rule 16 as imposing a "good cause" standard to untimely motions to amend when a scheduling order governs the case. See Minter v. Prime Equip. Co., 451 F.3d at 1205 n. 4. "This requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay." Minter v. Prime Equip. Co., 451 F.3d at 1205 n. 4.
The Defendants assert that, even considering the allegations in Gerald's affidavit, he has not plead an hostile work environment claim, and therefore giving him leave to amend would be futile. The Court may refuse to allow a plaintiff to amend his or her complaint when amendment would be futile. See Brereton v. Bountiful City Corp., 434 F.3d at 1219 ("A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile."). While the Court does not consider whether the allegations in Gerald's affidavit establish a hostile work environment claim for the purposes of deciding the Defendants' motion to dismiss. See Kearney v. Dimanna, 195 Fed.Appx. at 721 n. 2 ("It is well-established ... that in determining whether to grant a motion to dismiss, the district court, and consequently this court,
The Defendants assert that Gerald's allegations in his affidavit are insufficient to set forth a plausible hostile work environment claim. The Defendants contend that Gerald's allegations in his affidavit are not materially different from the facts the Tenth Circuit held were insufficient to survive summary judgment in Bolden v. PRC Inc. In that case, the Tenth Circuit affirmed summary judgment on, among other things, a plaintiff's hostile work environment claim. The plaintiff, "Mr. Bolden, an African American, had worked as an electrician at PRC for eight years" and he was "a sensitive and serious person working in a shop filled with boorish churls. Eventually, the torment from his coworkers became unbearable for Mr. Bolden, so he resigned his employment with PRC." 43 F.3d at 548. "Although the record on appeal show[ed] Mr. Bolden was badgered frequently by several of his coworkers, Mr. Bolden allege[d] only two of his coworkers made overtly racial remarks.":
43 F.3d at 549. The district court granted the defendants summary judgment on all Bolden's claims, including a hostile work environment claim. The district court stated that "the badgering of the plaintiff was `commonplace of the blue collar environment of the electronics shop,'" and held that the "evidence show[ed] only isolated and sporadic racial comments." 43 F.3d at 550 (citation to the record omitted). Bolden appealed, "assert[ing] the reasonable inferences drawn from the facts he has shown support a claim of racially hostile work environment." The Tenth Circuit affirmed:
Bolden v. PRC Inc., 43 F.3d at 551.
While some elements of the holding in Bolden v. PRC Inc. bolsters the Court's dismissal of the SAC, because the SAC alleges only a "few isolated incidents" that were not "overtly racial" in the realm of football, Bolden v. PRC Inc., 43 F.3d at 551 (citations omitted), the opinion is not particularly instructive in assessing the viability of the allegations in the SAC combined with the allegations in Gerald's affidavit. Unlike the "general ridicule" in Bolden v. PRC Inc., which was "directed indiscriminately," and Bolden was not "singled out for abuse," 43 F.3d at 551, Gerald alleges that Locksley's epithets, threats, and physical violence were racially charged, and directed at him and the other black coaches, see Gerald Aff. ¶ 8, at 2 ("As I grew to know Coach Locksley, I saw that his profane and demeaning conduct was directed toward the Black coaches, and that he rarely used profanity or derision against the White coaches."); id. ¶ 9, at 2 ("[Gerald] had a habit of addressing other Black coaches and me as `nigger,' both in public and in private, which I found offensive."); id. at ¶ 10, at 2 ("He also had a habit of using intimidation and threats when a Black was being disciplined or when there was a disagreement, but rarely if ever used such conduct against White coaches."). Unlike the "two overtly racial remarks (the Ku Klux Klan comment and the use of the term `nigger') and one arguably racial comment" in Bolden v. PRC Inc., which were made two years before "[t]he general ridicule became prevalent," 43 F.3d at 551, Gerald alleges that, "throughout the Spring and Summer of 2009," Locksley "continued, to call other Black assistants and [Gerald] `nigger,'" Gerald Aff. ¶ 14, at 2 (emphasis added), and that, "[d]uring several coaches meetings,"
Nonetheless, the Court agrees that the allegations in the affidavit face difficulties going forward. Many of the interactions with Locksley of which Gerald complains suggest that the bad blood between Locksley and Gerald resulted from their personal history and not from discriminatory intent on Locksley's behalf. "[P]ersonality conflicts between employees are not the business of the federal courts." Vore v. Ind. Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir.1994). Gerald states that, in May of 2009, he and Locksley disagreed on which high school prospect to recruit, and that Locksley "became enraged when [Gerald] continued to disagree with him." Gerald Aff. ¶¶ 11-12, at 2. Locksley threatened to "slap the shit" out of him, but that he defused the situation when he "finally backed down to avoid a fight." Gerald Aff. ¶¶ 12-13, at 2. Similarly, Gerald alleges:
Gerald Aff. ¶¶ 17-19, at 3 (emphasis added).
Gerald's account of the September 20, 2009 incident in the affidavit also lacks a racial animus nexus, stating instead that Locksley was "angry and upset about [a] loss":
Gerald Aff. ¶¶ 20-23, at 3-4.
Gerald's allegations in his affidavit against Krebs also suggest that a desire to protect the football program and not racial animus motivated Krebs's actions of which Gerald complains. Gerald alleges:
Gerald Aff. ¶¶ 30-34, at 4-5.
All boorish behavior does not amount to violations of Title VII. See Bolden v. PRC Inc., 43 F.3d at 551 ("General harassment if not racial or sexual is not actionable.").
Vore v. Ind. Bell Tel. Co., 32 F.3d at 1162. The incidents Gerald alleges do not, on their face and alone, suggest that Locksley, an African American, mistreated Gerald, an African American, out of racial animus. See Christian v. Runyon, NO. 94 CIV. 5907(TPG), 1998 WL 47826, at *5 (S.D.N.Y. Feb. 4, 1998)("Although it is possible that there can be racial bias committed against a black employee by a black supervisor, the fact that much of the mistreatment alleged by plaintiff was, if it occurred, committed by a black supervisor is substantial evidence against the idea of racial bias."). They suggest that Locksley had little patience for poor performance and having his decisions questioned, and that he responded to Gerald's perceived insubordination like a brute. "[P]ersonality conflicts between employees are not the business of the federal courts." Vore v. Ind. Bell Tel. Co., 32 F.3d at 1162.
On the other hand, Gerald provides allegations that Locksley used racial epithets, that his actions were racially motivated, and that racial animus drove his threats and physical violence. He alleges that Locksley possessed an "aggressive and dominant nature," that he had a "habit of demeaning his subordinates," and "us[ing] of profanity and racial epithets." Gerald Aff. ¶ 7, at 2. Gerald further alleges that Locksley's "profane and demeaning conduct was directed toward the Black coaches, and that he rarely used profanity or derision against the White coaches." Gerald Aff. ¶ 8, at 2. He also contends that Locksley used "intimidation and threats when a Black was being disciplined or when there was a disagreement, but rarely if ever used such conduct against White coaches." Gerald Aff. ¶ 10, at 2. Gerald further alleges that Locksley "had a habit of addressing other Black coaches and [Gerald] as `nigger,' both in public and in private, which [Gerald] found offensive." Gerald Aff. ¶ 9, at 2. Gerald alleges that, throughout the Spring and Summer of 2009, Gerald "continued to use profanity and a threatening manner," and "continued to call other Black assistants and [Gerald] `nigger.'" Gerald Aff. ¶ 14, at 2. Gerald states:
Gerald Aff. ¶¶ 15-16, at 2-3. Because Gerald plausibly alleges that Locksley's boorish behavior had a racial component, Locksley was Gerald's supervisor, and Locksley's activities occurred at meetings and work activities, Gerald sets forth allegations that his work environment was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Sandoval v. City of Boulder, 388 F.3d at 1327.
The Court granted Gerald leave to amend his pleading, because "the allegations in Gerald's EEOC Charge, combined with his allegations that Locksley threatened, hit, and choked him, may, under the totality of the circumstances, amount to a hostile work environment." MOO at 74. In the EEOC Charge, Gerald alleges that he was "subjected ... to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning [his] decisions, and cursing [him] in front of [his] peers and students." EEOC Charge at 2. The Court stated in its MOO that "[t]he physical attack combined with other threats and abuse and public humiliation in front of [Gerald's] peers and students may push his hostile work environment claim across the line from possible to plausible." MOO at 74. The allegations in Gerald's affidavit achieve what the Court instructed Gerald to do in his SAC. Gerald alleges other incidents where Locksley threatened and abused him, namely Locksley threatened that he would "slap the shit" of Gerald in May 2009 after Gerald questioned Locksley recruitment pick, Gerald Aff. ¶¶ 11-12, at 2, and in August 2009 when Gerald's player performed badly, Gerald Aff. ¶ 17, at 2. The August 2009 was humiliating, because Gerald made the threat in front of "players, other coaching assistants and members of the press," Gerald Aff. ¶ 17, at 2, which "undermines the victim's authority in the workplace," Mathirampuzha v. Potter, 548 F.3d at 78-79 (citations omitted). Gerald's allegations that Locksley's threats and abuse were directed primarily towards black coaches plausibly links these allegations and the September 2009 incident to Locksley's alleged racial animus, because he alleges that Locksley's epithets, threats, and physical violence were racially charged, and directed at him and the other black coaches. See Gerald Aff. ¶ 8, at 2 ("As I grew to know Coach Locksley, I saw that his profane and demeaning conduct was directed toward the Black coaches, and that he rarely used profanity or derision against the White coaches."); id. ¶ 9, at 2 ("[Gerald] had a habit of addressing other Black coaches and me as `nigger,' both in public and in private, which I found offensive."); id. at ¶ 10, at 2 ("He also had a habit of using intimidation and threats when a Black was being disciplined or when there was a disagreement, but rarely if ever used such conduct against White coaches."). Gerald further alleges that Locksley used racial epithets, asserting that "throughout the Spring and Summer of 2009," Locksley "continued to call other Black assistants and [Gerald] `nigger,'" Gerald Aff. ¶ 14, at 2, and that, "[d]uring several coaches meetings," Locksley told them to "be careful not to hire too many `niggers' as coaches," Gerald Aff. ¶ 15, at 2, which reasonably implies that the racial epithets were frequent and occurred contemporaneously with the alleged threats and physical violence. In
The alternative, non-race-based explanations of Krebs and Locksley's conduct may ultimately condemn Gerald's claim on summary judgment, where he must overcome McDonnell Douglas Corp. v. Green's burden shifting framework.
While Gerald has been far from artful in setting forth his hostile work environment claim, the Court believes that, from the SAC and from Gerald's affidavit, the full picture emerges. Locksley is careful not to have too many black coaches on his staff, apparently concerned how they will perform or how the public may perceive a "too black" coaching staff. Locksley treats the black assistant coaches differently than the white coaches. He rides the black coaches harder and is more abrasive to the black coaches. He uses the word "nigger" to refer to and to criticize black coaches in front of coaches, staff, players, and the press. He also uses physical threats and has used physical force to intimidate Gerald. Locksley did not engage in this inappropriate physical conduct once or twice; it appears to have been unceasing.
The Defendants argue that "the notion that the situation at issue involved any racial component is implausible given that the person complaining and the subject of the complaint both are African American." Motion at 16 n. 12 (citing Christian v. Runyon, 1998 WL 47826, at *5) ("Although
Kennedy, supra, 2001 U. Ill. L.Rev. at 937 (footnotes omitted). The import of the work "nigger" is thus context bound.
Gregory S. Parks & Shayne E. Jones, "Nigger": A Critical Race Realist Analysis of the N-Word Within Hate Crimes Law, 98 J.Crim. L. & Criminology 1305, 1321-22 (2008)(footnotes omitted). In certain circumstances, a black man's use of the word "nigger" to describe another black man may be racist, particularly when it is used as a put-down, as a word of disrespect, or to explain why the a person is acting in a particular manner. The SAC and affidavit allow a reasonable inference that Locksley was using the word in a racist sense, to paint black coaches in an negative light vis-a-vis the white coaches.
The Defendants also contend that Gerald fails to allege that UNM is liable for Locksley's or Krebs' actions. They contend:
Reply at 8. Their argument is unavailing, because it asks the Court to require that Gerald overcome an affirmative defense in his complaint. The Tenth Circuit has "explained that an employer can be vicariously liable for a hostile work environment created by a supervisor in two situations":
Shabestari v. Utah Non-Profit Housing, 377 Fed.Appx. 770, 772-73 (10th Cir.2010)(quoting Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1059 (10th Cir. 2009)). Gerald does not allege that he was subjected to a tangible employment action, which "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). See Couture v. Belle Bonfils Mem'l Blood Ctr., 151 Fed. Appx. 685, 690-91 (10th Cir.2005)("[W]e reiterated our policy of `liberally defin[ing]' the phrase `adverse employment action,' and indicated it is not necessarily limited to a `tangible employment action' such as `hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004))).
The Defendants further argue that Gerald is attempting to do an end run around the scheduling order. They contend this amendment is untimely and that Gerald cannot show good cause to amend his pleading after the June 6, 2011 deadline for Gerald to file an amended complaint. See Scheduling Order at 1. The Court believes, however, that Gerald's circumstances establish good cause to allow him to file an amended complaint. Mr. Juarez picked up a number — if not all — of Mr. Montoya's cases when Mr. Montoya was suspended from the practice of law. Mr. Montoya had an active practice and had sixty-six federal cases pending at the time of his suspension. By way of comparison, each District Court of New Mexico judge currently carries a caseload of roughly one-hundred civil cases. The Court may reasonably assume that Mr. Juarez also inherited a number of state court cases. Mr. Montoya's cases were at various stages. Mr. Juarez recently tried one of Mr. Montoya's former cases before the Court on June 29-30, 2011, in Mata v. Rahn, No. CIV. 10-0366. Gerald's move to Maryland complicated attorney-client communications. Had Mr. Juarez requested a continuance to file his SAC when the Court issued its MOO, the Court would have granted it to him in light of the acute increase in his caseload that he was working under. The sharp increase in his caseload provided good cause under rule 16, because Mr. Juarez could not meet the Court's deadline despite his diligent efforts. See Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d at 1313 ("Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts."). Mr. Montoya drafted Gerald's first two pleadings, and while the facts in Gerald's affidavit were known to Gerald, they were not know to
Gerald has tested the outer limits of rule 15(a) and rule 16(b)(4). The Court might not abuse its discretion by denying Gerald's request to amend. Bylin v. Billings, 568 F.3d at 1231-32 ("[T]he district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order ... will not be disturbed unless they evidence a clear abuse of discretion.") (quoting United States v. Dang, 488 F.3d 1135, 1143 (9th Cir.2007)); Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 684 (3d Cir.2003)("Rule 16 was not intended to function as an inflexible straightjacket on the conduct of litigation." (citations omitted)). Nonetheless, the Court prefers to resolve Gerald's claim on the merits. Burleson v. ENMR-Plateau Tel. Co-op., 2005 WL 3664299, at *2 ("[T]he ... Tenth Circuit has determined that district courts should grant leave to amend when doing so would yield a meritorious claim." (citing Curley v. Perry, 246 F.3d at 1284)). Gerald has shown good cause for the Court to allow him to file a third amended complaint. Mr. Juarez' explanation, while not compelling, is understandable, and given the volume of cases that Mr. Juarez assumed from Mr. Montoya, provides good cause to extend the deadline one more time, particularly given that discovery remains at an early stage.
The Court has treated Gerald liberally in its procedures and in considering material outside the complaint to decide whether to allow his to amend his pleadings. The third amended complaint should be the last, and at the hearing, Gerald agreed. See Tr. at 22:10-25 (Juarez)("[S]ay you've got ten days to fix it or it's gone."). If Gerald does not place his allegations, in full, in the third amended complaint the Court will not consider them. Gerald's unorthodox procedures have caused the Court to expend considerable time and effort, and the case remains at the pleading stage. Gerald's process has also been a burden on the Defendants. Gerald and his counsel must put sound thought and careful effort into the next pleading.
West v. N.M. Taxation and Revenue Dep't, 757 F.Supp.2d 1065, 1100 (D.N.M.2010).
Pa. State Police v. Suders, 542 U.S. 129, 136-47, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). If the Court had allowed his constructive discharge claims to go forward, his constructive discharge claims could serve as a tangible employment action. See Pa. State Police v. Suders, 542 U.S. at 140-41, 124 S.Ct. 2342 ("[A]n employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a `tangible employment action,' however, the defense is available to the employer whose supervisors are charged with harassment."). Regardless, Gerald would not be required to plead whether he availed himself of any preventive or corrective opportunities UNM provided. The situation would be different, of course, on a motion for summary judgment.
