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Tellez v. Bakeries

United States District Court, D. New Mexico

December 16, 2016



         This matter comes before the Court upon two motions: (1) Defendant Bimbo Bakeries USA, Inc.'s Partial Motion to Dismiss Plaintiff's Complaint and supporting memorandum (collectively, Motion to Dismiss) brought under Fed.R.Civ.P. 12(b)(1) and filed on March 7, 2016; and (2) Plaintiff Araceli Tellez's Opposed Motion to Amend Complaint (Motion to Amend), filed on May 13, 2016. (Docs. 7, 8 and 22). Defendant Bimbo Bakeries USA, Inc. (BBU) argues in the Motion to Dismiss that the Court lacks subject matter jurisdiction because Plaintiff Araceli Tellez (Ms. Tellez) failed to exhaust her administrative remedies under the New Mexico Human Rights Act (NMHRA). Ms. Tellez seeks to amend her complaint to include a sentence stating that she has exhausted her administrative remedies. Both motions are now fully briefed, including supplemental briefing requested by the Court. (Docs. 11, 13, 23, 43 and 44).

         Having considered the Motion to Dismiss, the Motion to Amend, the Complaint for Discrimination on the Basis of Race, Sex and Retaliation (Complaint) (Doc. 12-1), and all of the briefing, the Court grants the Motion to Dismiss as it relates to Ms. Tellez's race discrimination claim and denies the Motion to Dismiss as it relates to her sex discrimination claim. The Court also grants the Motion to Amend, in part, to allow Ms. Tellez to assert that she has exhausted her administrative remedies with respect to her sex discrimination claim. The Motion to Amend as it relates to the dismissed race discrimination claim is denied as moot.

         A. Background

         1. The Charge of Discrimination

         Prior to filing this lawsuit, Ms. Tellez completed a Charge of Discrimination (Charge) with the New Mexico Department of Workforce Solutions, Human Rights Bureau. (Doc. 8) Ex. B at 1. In the section of the Charge describing the basis for her claims of discrimination, Ms. Tellez checked boxes for both race and sex. Id. In her narrative, Ms. Tellez described how BBU denied her transfer to another location even though she knew the company previously had approved the transfer of “a Black male by the name of Willie” under similar conditions. Id. Ms. Tellez concluded the Charge by stating, “I believe I was discriminated against due to my race (White) and my sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended.” Id. The Charge was dated April 6, 2015, and signed by Ms. Tellez. Id. Directly above her signature was the statement, “I declare under penalty of perjury that the above is true and correct.” Id.

         Ms. Tellez signed an Amended Charge (Amended Charge) on June 5, 2015, again under penalty of perjury. Id. at 2. This time, in addition to checking boxes for race and sex, Ms. Tellez checked a third box, indicating discrimination based on disability. Id. Ms. Tellez also edited the narrative section to include facts supporting a claim of discrimination in violation of the Americans with Disabilities Act (ADA). Id. at 2-3. Ms. Tellez made no changes to her prior claims of discrimination based on race and sex. Id. The Amended Charge specifically indicated that Ms. Tellez's race discrimination claim was due to her White race. Id. at 3.

         2. The Complaint

         Ms. Tellez filed a Complaint in the Second Judicial District Court on November 30, 2015, alleging that BBU discriminated against her because she is Hispanic and a female. (Doc. 12-1.) at ¶¶ 6 and 20-25. She asserted three Counts against BBU: race discrimination under the NMHRA (Count I), sex discrimination under the NMHRA (Count II) and retaliation under the Family and Medical Leave Act (FMLA) (Count III). Id. at ¶¶ 20-30. BBU removed the matter to this Court on the basis of federal question jurisdiction related to the FMLA claim.

         Ms. Tellez alleges in her Complaint that, after working for BBU for a little over a year, she requested time off to visit her ailing mother in California. (Doc. 12-1) at ¶¶ 5 and 8. Ms. Tellez was approved for time off and used vacation leave, but was not offered any leave under the FMLA. Id. at ¶¶ 9-10. Further, BBU warned Ms. Tellez that her job could not be held open for long and asked if she would be interested in transferring to BBU's Escondido, California location. Id. at ¶ 9. Ms. Tellez claims that after she moved to California, she was told that BBU did not allow transfers, despite the fact that Ms. Tellez was aware of a male employee who had been allowed to transfer from out of state to BBU's Albuquerque location. Id. at ¶¶ 13-14. Following instructions given by BBU's Human Resources Representative, Ms. Tellez resigned her position with BBU in Albuquerque and began applying with BBU's Escondido location. Id. at ¶¶ 15-16. Ms. Tellez was unable to obtain a position with BBU in Escondido and ultimately moved back to Albuquerque to find work. Id. at ¶¶ 16-17. She was unemployed for over six months before accepting a job making $5.00 less an hour than she made at BBU. Id. at ¶ 18.

         3. The Proposed Amended Complaint

         Ms. Tellez seeks to amend her Complaint to add a sentence stating that she exhausted her administrative remedies. (Doc. 22) at 2. After filing a Charge with the EEOC on April 6, 2015, and an Amended Charge on June 5, 2015, Ms. Tellez received an Order of Non-Determination from the New Mexico Human Rights Bureau on September 2, 2015. Id. Ms. Tellez then filed her Complaint alleging violations of the NMHRA on November 30, 2015, within the ninety (90) day time limit required by the NMHRA. Id. Ms. Tellez alleges that allowing the proposed amendment to her Complaint will resolve the issue of jurisdiction. Id. at 1.

         B. Discussion

         1. Rule 12(b)(1) Standard

         “Federal courts are courts of limited jurisdiction.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994) (citations omitted). The court presumes “that a cause lies outside of [its] limited jurisdiction” until the party asserting jurisdiction proves otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In cases like this, where a Rule 12(b)(1) motion “challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's factual allegations.” Sizova v. Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (internal quotation omitted). “A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. “Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that ...

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