JAMES O. BROWNING, District Judge.
All three of the Plaintiffs are citizens of the United States. See Amended Complaint ¶¶ 1-3, at 16-17. Campos worked for the Defendants starting in June 1985. See Amended Complaint ¶ 10, at 18. The Defendants hired Gonzalez and Espinoza in April and October 2009, respectively. See Amended Complaint ¶¶ 11-12, at 18. All three allege discrimination by the Defendants based on national origin, which ended only upon their termination from their employment with the Defendants. See Amended Complaint ¶¶ 13-15, at 18. Campos and Espinoza also allege assault and battery by Shull. See Amended Complaint ¶¶ 27-28, at 21-22.
On March 24, 2010, Campos filed her charge of discrimination with the Equal Employment Opportunity Commission
On April 6, 2010, Espinoza filed her charge of discrimination with the EEOC and NMHRD. See Charge of Discrimination at 4 (dated April 6, 2010), filed February 16, 2011 (Doc. 5, Ex. 1) ("Espinoza Charge of Discrimination").
On September 22, 2010, Gonzalez filed her charge of discrimination with the EEOC and NMHRD. See Charge of Discrimination at 5 (dated September 22, 2010), filed February 16, 2011 (Doc. 5, Ex. 3) ("Gonzalez Charge of Discrimination").
The Plaintiffs filed their Original Complaint in the Third Judicial District Court, Dona Ana County, State of New Mexico on September 23, 2010, and filed Plaintiffs' First Amended Complaint on January 4, 2011. See Plaintiffs' Original Complaint (dated September 23, 2010), filed January 28, 2011 (Doc. 1, Ex. 2); Amended Complaint. In the Amended Complaint, the Plaintiffs alleged against all the Defendants: (i) NMHRA violations; (ii) Title VII violations; (iii) intentional infliction of emotional distress claims; (iv) negligent training/supervision claims; and (v) assault and battery claims. See Amended Complaint ¶¶ 19-28, 25-26, at 1, 20-22. The Defendants removed the matter to federal court on January 28, 2011. See Notice of Removal, filed January 28, 2011 (Doc. 1). On February 4, 2011, the Defendants filed their motion to dismiss pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Motion.
In their Motion, the Defendants argue that the Plaintiffs have failed to exhaust their NMHRA and Title VII administrative remedies against all of the Defendants except Las Cruces Nursing Center. See
At the July 29, 2011 hearing, the parties and the Court discussed the proper naming of the parties and the style of the case. See Transcript of Hearing at 2:13-3:14 (taken July 29, 2011) ("Tr.") (Court, Labinoti, Howell).
"Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and
Rule 12(b)(1) allows a party to raise the defense of the court's "lack of subject-matter jurisdiction" by motion. Fed. R.Civ.P. 12(b)(1). The United States Court of Appeals for 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), aff'd, 634 F.3d 1170 (10th Cir.2011). 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)). 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)).
Rule 12(b)(6) authorizes a court to dismiss for failure to state a claim. The court may dismiss a complaint sua sponte with prejudice under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim if "it is `patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (quoting McKinney v. Okla., Dep't of Human Servs., 925 F.2d 363, 365 (10th Cir.1991)). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pled 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 "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. at 1940 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
A plaintiff must administratively exhaust both Title VII and NMHRA claims before bringing them 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. See EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441, 447 (2d Cir.1995). 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 (2011). In New Mexico, a complainant can, upon meeting filing requirements, proceed with his or her grievance either through the EEOC or through the NMHRD. See Mitchell-Carr v. McLendon, 127 N.M. 282, 286, 980 P.2d 65, 69 (1999). Whether complainants decide to pursue their grievances with the EEOC or with the NMHRD, they must exhaust their respective regimes' administrative remedies before seeking judicial review. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) ("Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.");
The NMHRA makes it an unlawful discriminatory practice for:
N.M.S.A.1978, § 28-1-7. 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 the individual defendants under the Human Rights Act, we affirm the trial court's order dismissing those defendants."). To exhaust administrative remedies under the NMHRA, a person must: (i) file a complaint with the NMHRD or the EEOC making sufficient allegations to support the complaint; and (ii) receive an order of nondetermination from the NMHRD. See Mitchell-Carr v. McLendon, 127 N.M. at 287, 980 P.2d at 70. Notably, a right-to-sue letter from the EEOC does not substitute for an order of nondetermination from the NMHRD under New Mexico law, based on the differences in the administrative powers of each agency. See Mitchell-Carr v. McLendon, 127 N.M. at 286-87, 980 P.2d at 69-70 ("Our conclusion that the work-sharing agreement contemplates dual filed charges, but not a shared resolution of those charges by the EEOC and the Division, follows from significant differences in administrative authority under federal and state law.").
The Supreme Court of New Mexico has affirmed that defendants who were not named in the administrative proceeding cannot be added to the appeal to the district court. See Mitchell-Carr v. McLendon, 127 N.M. at 286, 980 P.2d at 69 ("None of the Appellants named McLendon as an individual respondent in these charges; each named only the Union as a respondent. Therefore, we conclude that the district court property granted summary judgment on Appellants' NMHRA claims against McLendon."). "[I]ndividual defendants cannot be sued in district court under the Human Rights Act unless and until the complainant exhausts her administrative remedies against them." Luboyeski v. Hill, 117 N.M. at 383, 872 P.2d at 356. See Sonntag v. Shaw, 130 N.M. 238, 243, 22 P.3d 1188, 1193 (2001) (dismissing an individual defendant from the case because the plaintiff had not named the defendant in her complaint to the NMHRD).
Title VII prohibits an employer from "fail[ing] or refus[ing] to hire or
There are narrow exceptions to the rule requiring that each defendant be specifically named as a respondent in an EEOC charge. For example, where the defendant is mentioned in the text of the charge or "where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation." Romero v. Union Pac. R.R., 615 F.2d at 1311. Four factors are pertinent to the determination whether the omission of a defendant's name requires automatic dismissal in the court action under Title VII:
Romero v. Union Pac. R.R., 615 F.2d at 1312 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977)). Additional relevant factors may also be evaluated. See Romero v. Union Pac. R.R., 615 F.2d at 1312.
Before commencing a Title VII action in federal court in a state with an agency empowered to investigate employment discrimination, like the NMHRD, "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). 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
In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII lawsuit. See Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir.2007); Alcivar v. Wynne, 268 Fed.Appx. 749, 753 (10th Cir.2008) (unpublished) ("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)); Sampson v. Civiletti, 632 F.2d 860, 862 (10th Cir.1980) ("Exhaustion of administrative remedies is a jurisdictional prerequisite to suit" under Title VII.); Romero v. Union Pac. R.R., 615 F.2d at 1311.
Without exhaustion of administrative remedies, federal courts lack subject-matter jurisdiction to entertain discrimination claims under that statute, 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). The Tenth Circuit has raised some concern whether failure to exhaust administrative remedies is still a jurisdictional prerequisite to suit after the Supreme Court of the United States' decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). See, e.g., Alcivar v. Wynne, 268 Fed.Appx. at 753 (noting that "Jones v. Bock held that under the PLRA [Prison Litigation Reform Act, 18 U.S.C. § 3236] exhaustion is an affirmative defense to be raised by the defendant and not a jurisdictional pleading requirement," but finding it was "not ... necessary to decide whether exhaustion is jurisdictional under Title VII after Jones v. Bock"); McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 874 (10th Cir.2007) ("Although courts have repeatedly referred to the exhaustion requirement as jurisdictional,... recent Supreme Court jurisprudence in other contexts casts doubt on that characterization ...." (citations omitted)). A recent unpublished Tenth Circuit decision indicates that Jones v. Bock did not demote the exhaustion requirement from a jurisdictional prerequisite to an affirmative defense, at least in the Title VII context. See Martinez v. Target Corp., 384 Fed. Appx. 840, 845 n. 2 (10th Cir.2010) (Kelly, Porfilio, O'Brien, JJ.) ("Martinez is not proceeding under the PLRA; Bock is inapposite. She does not point us to a single decision — of this or any other court — applying Bock in the context of a Title VII or ADEA case.").
"[T]he failure to obtain a right-to-sue letter prior to the commencement of a suit is a curable defect." Martin v. Cent. States Emblems, Inc., 150 Fed.Appx. 852, 855 n. 3 (10th Cir.2005) (unpublished)
See Mitchell-Carr v. McLendon, 127 N.M. at 288, 980 P.2d at 71 (citations omitted). Specifically, the Supreme Court of New Mexico has stated that receiving an order of nondetermination from the NMHRD after the filing of a district court complaint suffices to exhaust the plaintiff's administrative remedies. See Mitchell-Carr v. McLendon, 127 N.M. at 288, 980 P.2d at 71.
The Court may look outside the Amended Complaint in making its decision regarding subject-matter jurisdiction without converting the motion to dismiss to a motion for summary judgment. In making its analysis, the Court removes from consideration the Plaintiffs' legal conclusions, including those clothed as factual allegations. When the Court conducts its record analysis, the Court concludes that the Plaintiffs have not exhausted some of their claims against some of the Defendants, specifically Defendants THI of New Mexico, FAS, and Shull.
In their Amended Complaint, the Plaintiffs contend that they "timely filed charges of national origin discrimination with the Equal Employment Opportunity Commission and satisfied all administrative requirements for filing this suit." Amended Complaint ¶ 30, at 22. In their motion to dismiss, the Defendants assert that, "[w]hile purporting to assert NMHRA claims against all `Defendants,'... Plaintiffs fail to allege administrative exhaustion against each of them." Motion at 3. The Defendants further assert that the Plaintiffs' assertion of exhaustion of administrative remedies as set forth in the Amended Complaint is too vague and conclusory, particularly because it does not state where or when the charges were filed, who filed against whom, the determination of the process, or whether the current lawsuit is an appeal of the decision. See Motion at 3. Additionally, they argue that the Plaintiffs did not exhaust their administrative remedies against any entity except Las Cruces
In response, the Plaintiffs assert: "Plaintiff [sic] requests that the Court allow Plaintiff to file the Amended Pleadings to where Plaintiff in detail specifics and incorporates and attaches as exhibit[s] the evidence of exhaustion of remedies." Response ¶ 36, at 7. "A plaintiff invoking the court's subject matter jurisdiction `must allege in his pleadings the facts essential to show jurisdiction' and, if challenged, must support those allegations by a preponderance of the evidence." Pretlow v. Garrison, 420 Fed.Appx. 798, 802 (10th Cir.2011) (quoting Celli v. Shoell, 40 F.3d 324, 327 (10th Cir.1994)). Nevertheless, "[i]n pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity." Fed.R.Civ.P. 9(c). While the Plaintiffs may have satisfied rule 9(c) for purposes of contract law, the Plaintiff's bare bone allegations do not satisfy the Plaintiffs' obligation to establish jurisdiction. Here, the Plaintiffs allege only that the "Plaintiffs timely filed charges of national origin discrimination with the Equal Employment Opportunity Commission and satisfied all administrative requirements for filing this suit." Amended Complaint ¶ 30, at 22. These factual allegations are conclusory and do not sufficiently demonstrate that the Plaintiffs have met their obligation to exhaust their administrative remedies. 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. at 104, 118 S.Ct. 1003. Because the Defendants have challenged these allegations, the Plaintiffs have the obligation to support them by a preponderance of the evidence, a standard the current allegations cannot satisfy.
The Plaintiffs have, however, provided to the Court in their Response the applicable documents to evidence exhaustion. Because the Defendants will not be prejudiced by the Court considering these documents, the Court will analyze these documents the Plaintiffs have provided to determine whether it has subject-matter jurisdiction over each of the Plaintiffs' federal claims. Additionally, in their Reply, the Defendants did not object to consideration of these documents in the context of this Motion and, in fact, discussed in detail the documents that the Plaintiffs attached to their Response. See Reply at 2-4. The Defendants also did not object to consideration of these documents at the hearing. In their Motion, the Defendants cited to authority stating that the Court can consider evidence beyond the complaint in the context of a 12(b)(1) motion. See Motion at 4-5.
The Defendants specifically contend that all of the Plaintiffs' NMHRA claims, except those against the Las Cruces Nursing Center should be dismissed. See Doc. 3 at
Because a more detailed discussion of the proper employer-Defendant's name occurred at the hearing, an analysis of whether THI of New Mexico at Las Cruces, LLC is a proper Defendant is unnecessary. The Defendants conceded at the hearing that "THI of New Mexico at Las Cruces is the actual employer of these [Plaintiffs] and that's why they drew the charge." See Tr. at 14:14-14:16 (Howell). The Defendants request that THI of New Mexico, LLC, Fundamental Administrative Services, LLC and Ken Shull be dismissed as Defendants because none of them are named as respondents on the administrative discrimination charges. See Tr. at 4:8-4:15 (Howell). The Plaintiffs vaguely argued at the hearing that THI of New Mexico and Fundamental Administrative Services did business as Las Cruces Nursing Center, and that they might be relevant Defendants to the case, see Tr. at 7:5-13, 10:17-11:18 (Labinoti), but, looking to the charges filed by the Plaintiffs, each of the charges only name Las Cruces Nursing Center as respondent. Under Title VII, a plaintiff must normally name a respondent in the charge of discrimination to exhaust their administrative remedies against that respondent. Additionally, a plaintiff does not exhaust his or her administrative remedies under the NMHRA unless she named the individual defendant in her administrative charge. See Mitchell-Carr v. McLendon, 127 N.M. at 286, 980 P.2d at 69. The Plaintiffs did not exhaust their administrative remedies against THI of New Mexico, LLC or Fundamental Administrative Services, LLC.
In their response, "Plaintiff [sic] requests the Court allow the Plaintiffs to file the Amended Pleading to properly correct the misnomer, misspelling of Defendant's names in the pleading from Las Cruces Nursing Center and THI of New Mexico at Las Cruces, LLC to THI of New Mexico at Las Cruces, LLC, d/b/a Las Cruces Nursing Center and Kenneth Schultz to Kenneth Shull." Response ¶ 37, at 7-8. Instead of requiring the Plaintiffs to file another amended Complaint,
The Defendants argue that not all the Plaintiffs filed their lawsuit after receiving their determination documents from the NMHRD. See Tr. 7:1-7:4 (Labinoti). In further determining whether it has subject-matter jurisdiction over all of the claims, the Court will consider the specific administrative processes of each of the Plaintiffs for both their NMHRA and Title VII claims. Notably, the Supreme Court of New Mexico has stated that receiving an order of nondetermination from the NMHRD after the filing of a district court complaint suffices to exhaust the plaintiff's administrative remedies. See Mitchell-Carr v. McLendon, 127 N.M. at 288, 980 P.2d at 71.
Campos filed her administrative charges, and received her Order of Nondetermination from the NMHRD and her Dismissal and Notice of Rights for her claims against Las Cruces Nursing Center before filing this case. See Campos Order of Nondetermination at 1; Campos Dismissal and Notice of Rights at 3. She exhausted her administrative remedies, and the Court has subject-matter jurisdiction over her claims. Espinoza filed her administrative charges against Las Cruces Nursing Center before she filed this case. See Espinoza Charge of Discrimination at 4. She received her Dismissal and Notice of Rights from the EEOC on July 28, 2010, almost two months before she filed the
The Defendants argue that the Plaintiffs failure to correctly name Shull in the charges filed with the EEOC means that the Plaintiffs have failed to exhaust their administrative remedies. The Plaintiffs argue that, with regard to incorrectly naming Schultz as a Defendant instead of Shull, there is only one Ken, see Tr. at 11:22-11:23 (Labinoti), and because Ken Shull was named in the administrative charge, he was aware of the charge and a lawsuit in the federal court should be permitted against him, see Tr. at 11:24-12:5 (Labinoti). As a general matter, the NMHRA allows suits against individuals unlike Title VII. See Luboyeski v. Hill, 117 N.M. at 382, 872 P.2d at 355. No New Mexico cases directly address the issue of misnaming an individual defendant in a charge filed with the NMHRD. The Supreme Court of New Mexico has recognized that a plaintiff cannot name an individual defendant in a subsequent lawsuit in district court without naming him as a respondent in the charge filed with the NMHRD. See Luboyeski v. Hill, 117 N.M. at 382, 872 P.2d at 355. New Mexico courts have not yet addressed whether a suit involving an NMHRA claim can go forward against a respondent misnamed or misidentified in a charge filed with the NMHRD, or adopted a test laying out the circumstances when a person misnamed or misidentified in a charge filed with the NMHRD can later be added as a defendant in a lawsuit.
Federal courts must determine what a state's Supreme Court would do if confronted with the same issue. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Stoner v. New York Life Insurance Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940), the Supreme Court of the United States explained that, "in cases where jurisdiction rests on diversity of citizenship, federal courts, under the doctrine of Erie Railroad Co. v. Tompkins ... must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently." 311 U.S. at 467, 61 S.Ct. 336. "In particular, this is true where the intermediate state court has determined the precise question in issue in an earlier suit between the same parties, and the highest court of the state has refused review." Stoner v. New York Life Insurance Co., 311 U.S. at 467, 61 S.Ct. 336. See Adams-Arapahoe Joint School Dist. No. 28-J v. Continental Ins. Co., 891 F.2d 772, 774 (10th Cir.1989) ("With respect to issues which the Colorado Supreme Court has not addressed, we may consider all available resources, including Colorado appellate court decisions, other state and federal decisions, and the general trend of authority, to determine how the Colorado Supreme Court would construe the law in
483 F.3d at 665-66 (internal citations and quotation marks omitted).
In the context of Title VII, federal courts recognize that laypersons, not attorneys, usually write EEOC complaints, requiring that the complaints be liberally construed. See Romero v. Union Pac. R.R., 615 F.2d at 1311. The requirement, however, that a person name the defendant in the charge of discrimination is not merely a technicality, but rather "brings the charged party before the EEOC and permits effectuation of the Act's primary goal, the securing of voluntary compliance with the law." Alvarado v. Bd. of Trs., 848 F.2d at 458. Under federal law, there are some exceptions to the requirement that the person filing the charge of discrimination name the defendant in the charge. Two exceptions are as follows: (i) the defendant is mentioned in the text of the charge; or (ii) "there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation." Romero v. Union Pac. R.R., 615 F.2d at 1311. In the context of omitting a defendant's name entirely from the charge of discrimination, the Tenth Circuit applies a four-factor test to see if they may later be named as a defendant in a lawsuit:
Romero v. Union Pac. R.R., 615 F.2d at 1312. A district court may also consider additional relevant factors. See Romero v. Union Pac. R.R., 615 F.2d at 1312.
In the context of determining exhaustion of remedies under New Mexico law, the situation in this case is closest to the first of these exceptions; the defendant is mentioned in the text of the charge. See Romero v. Union Pac. R.R., 615 F.2d at 1311. Given that under Title VII a person may not name a supervisor as a party in a charging instrument, but that a supervisor may be a respondent under the
Here, one of the Plaintiffs named Shull correctly. In her Charge of Discrimination and Intake Questionnaire filed with the EEOC on April 6, 2010, Espinoza named Las Cruces Nursing Center and Kenneth Shull in the questionnaire. See Espinoza Charge of Discrimination at 4; Espinoza Intake Questionnaire at 14. Thus, the EEOC would have known Shull's correct name for purposes of its investigation and attempted reconciliation. Furthermore, in the response that Las Cruces Nursing sent to the EEOC regarding Campos, it identified the relevant individual as Kenneth Shull. See Las Cruces Nursing Center Response at 14-17 (dated May 24, 2010), filed February 16, 2011 (Doc. 5, Ex. 2). The other two Plaintiffs also named this individual in the body of their charge filed with the EEOC. Campos listed his name as Kenneth Shall in her charge of discrimination. See Campos Charge of Discrimination at 10. Likewise, Gonzalez listed his name as Ken Shall in her charge of discrimination. See Gonzalez Charge of Discrimination at 5.
More importantly, all three Plaintiffs specifically described the discriminatory conduct Shull allegedly committed. Campos discussed in her charge how Shull discriminated against her, including making ethnic comments against Hispanic people, making fun of Mexican employees because they do not speak English, and assaulting her. See Campos Charge of Discrimination at 5. Espinoza in her charge described Shull's involvement in the discrimination, specifically that he made demeaning comments about a Hispanic housekeeper not knowing English, and that he stated he was demoting her to a part-time position and replacing her with another employee, who is Anglo, for pretextual reasons. See Espinoza Charge of Discrimination at 4. Lastly, Gonzalez in her charge stated that she overheard Shull making fun of a Hispanic co-worker, Campos, because of her accent, and that Shull engaged in other similar conduct. See Gonzalez Charge of Discrimination at 5. Given the state of this record, the Court believes that the Supreme Court of New Mexico would conclude that Shull had notice of the discrimination charges
See Tucker v. Colo. Dep't of Pub. Health & Env't, 104 Fed.Appx. 704, 707 (10th Cir.2004) (unpublished).
Tr. at 9:11-9:20 (Labinoti). Plaintiffs did not name THI of New Mexico, LLC, or Fundamental Administrative Services, LLC as respondents in the EEOC charges. The Court will dismiss the Title VII and NMHRA claims against them.
