United States District Court, D. New Mexico
December 16, 2016
ARACELI TELLEZ, Plaintiff,
BIMBO BAKERIES, Defendant.
MEMORANDUM OPINION AND ORDER
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).
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.
The Charge of Discrimination
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.”
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.
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.
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.
The Proposed Amended Complaint
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.
Rule 12(b)(1) Standard
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 the trial court is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Campos v.
Las Cruces Nursing Ctr., 828 F.Supp.2d 1256, 1265
(D.N.M. 2011) (quoting Williamson v. Tucker, 645
F.2d 404, 412-413 (5th Cir. 1981)).
of administrative remedies is a prerequisite to suit under
the NMHRA, and a failure to exhaust administrative remedies
may mean that the court lacks subject-matter
jurisdiction.” Gerald v. Locksley, 785
F.Supp.2d 1074, 1088 (D.N.M. 2011) (citations omitted). A
district court must dismiss an unexhausted claim for lack of
subject matter jurisdiction. Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)
(considering effect of failure to exhaust under Age
Discrimination in Employment Act). “[B]ecause failure
to exhaust administrative remedies is a bar to subject matter
jurisdiction, the burden is on the plaintiff as the party
seeking federal jurisdiction to show, by competent evidence,
that she did exhaust.” McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1106 (10th Cir. 2002) (citing
United States. v. Hillcrest Health Ctr., Inc., 264
F.3d 1271, 1278 (10th Cir. 2001)).
exhaust administrative remedies under the NMHRA, a person
must: (i) file a complaint with the NMHRA or the EEOC making
sufficient allegations to support the complaint; and
(ii) receive an order of nondetermination from the
NMHRA.” Campos, 828 F.Supp.2d at 1267
(emphasis added). “Each discrete incident of
[discriminatory or retaliatory] treatment constitutes its own
unlawful employment practice for which administrative
remedies must be exhausted.” Daneshvar v. Graphic
Tech., Inc., 237 Fed.Appx. 309, 313 (10th Cir. 2007)
(quotation omitted). The United States Court of Appeals for
the Tenth Circuit has stated that the purposes of exhaustion
are “1) to give notice of the alleged violation to the
charged party; and 2) to give the EEOC an opportunity to
conciliate the claim.” Jones v. U.P.S., Inc.,
502 F.3d 1176, 1185 (10th Cir. 2007) (discrimination claims
brought under ADA).
EEOC Charge, Ms. Tellez originally identified claims for
discrimination on the basis of race and sex, claiming she was
denied a transfer due to her White race and female sex. (Doc.
8) Ex. B at 1. By filing the Charge describing discrimination
on the basis of her female sex and receiving the Order of
Non-Determination from the NMHRA on September 2, 2015, Ms.
Tellez plainly exhausted her administrative remedies for her
sex discrimination claim. Id.; (Doc. 22) at 2.
Accordingly, BBU's Motion to Dismiss is denied as it
relates to the claim of discrimination based on sex.
contrast, the Court finds that Ms. Tellez has not exhausted
her administrative remedies for her race discrimination
claim. Ms. Tellez's Charge and Amended Charge both
alleged discrimination on the basis of her White race. (Doc.
8) Ex. B at 1-2. Ms. Tellez cannot show that she filed a
complaint with the EEOC making “sufficient allegations
to support [a] complaint” for discrimination based on
her Hispanic race. Campos, 828 F.Supp.2d at 1267.
For the reasons described herein, BBU's Motion to Dismiss
claim is granted as it relates to Ms. Tellez's race
to filing her Complaint, Ms. Tellez never made any claim of
discrimination on the basis of being Hispanic. In her EEOC
Charge, Ms. Tellez originally described discrimination on the
basis of her White race, claiming she was denied a transfer
while a black male employee was permitted to move locations
within BBU. (Doc. 8) Ex. B at 1. Even when Ms. Tellez later
amended her Charge to add a claim of discrimination based on
disability, she did not make any changes to her allegation of
race discrimination based on her White race. Id. at
Tellez asserts that the characterization of her race as White
on the Charge form was due to an error by the EEOC and that
she should not be penalized for the EEOC's mistake. (Doc.
11) at 3. Ms. Tellez provided the Court with an affidavit
from the EEOC Area Director admitting that Ms. Tellez
indicated she was Hispanic on the Intake Questionnaire and
acknowledging the EEOC's error in failing to specify that
Ms. Tellez was claiming discrimination based on her Hispanic
race. (Doc. 44) Ex. C. Ms. Tellez further claims that the
EEOC does not make a distinction between White and Hispanic
races. (Doc. 44) at 2. She cites EEOC's Introduction to
Race and Ethnic (Hispanic Origin) Data for the Census 2000
Special EEO File, to suggest that “a Hispanic can be
classified as multiple races.” (Doc. 44) at 3, Ex. A at
1. Ms. Tellez also claims that she was unaware that she could
change or correct the EEOC's race description. (Doc. 11)
Ms. Tellez alleges that BBU was not prejudiced by the
EEOC's erroneous description of her race as White because
the race box on the Charge form was checked, putting BBU on
notice that she was asserting discrimination based on race.
(Doc. 11) at 3. Ms. Tellez claims that her employer knew she
was Hispanic, not White, because she had worked there for
more than a year and her surname is Hispanic. Id.
Moreover, Ms. Tellez testified at her deposition that she
felt more comfortable speaking Spanish. (Doc. 44) at 5. Ms.
Tellez contends that all these facts demonstrate that BBU had
sufficient notice that she was Hispanic when she filed her
Charge of discrimination. Id. at 6.
argues that it would be discriminatory to require the company
to assume Ms. Tellez's race based on anything besides her
actual claim as set forth in the Charge. (Doc. 8) at 6. Where
both the Charge and Amended Charge indicated that Ms. Tellez
alleged discrimination based on her “White” race,
BBU asserts that it reasonably treated her claim as one for
reverse discrimination. (Doc. 43) at 1, 4-5 and
BBU also asserts that Ms. Tellez never alleged any
discrimination based on Hispanic race prior to filing the
Complaint; therefore, the purposes of exhaustion, i.e. notice
and the opportunity to conciliate, are not satisfied.
Id. at 7. BBU further asserts Ms. Tellez cannot now
pursue claims not previously raised in the Charge or
exhausted in the administrative process. Id.
Court agrees that an employer should not be forced to assume
the nature of an employee's discrimination claims.
Indeed, racial identity may not always be ascertained by
appearance or surname. United States v. Esparsen,
930 F.2d 1461, 1466 (10th Cir. 1991). Moreover, both Ms.
Tellez's Charge and Amended Charge specifically
characterized her race as White, and BBU reasonably relied on
those allegations. (Doc. 8) at Ex. A and B. Ms. Tellez has
not provided any evidence that she sufficiently notified to
BBU that she was making any claim of discrimination based on
her Hispanic race prior to her Complaint. Accordingly, the
Court rejects the argument that BBU should have known Ms.
Tellez's race based on her time of employment, Hispanic
surname, and preference for speaking Spanish.
Ms. Tellez's claim that the EEOC does not make a
distinction between White and Hispanic races, the Court notes
that the very EEOC guide cited by Ms. Tellez actually
contradicts her argument. (Doc. 44) Ex. A at 1. The EEOC
guide describes “White” and “Hispanic or
Latino” as separate racial/ethnic categories and
specifically notes that “[t]he White category is
defined by the White not Hispanic or Latino category”.
Id. Ms. Tellez also claims that her Complaint for
race discrimination on the basis of Hispanic race is
reasonably related to her EEOC Charge. (Doc. 44) at 5.
However, a claim based on White race is plainly distinct from
a claim based on Hispanic race, particularly where the legal
requirements for establishing prima facie
discrimination are different when a party alleges reverse
discrimination. (Doc. 43).
the New Mexico Supreme Court utilizes the burden shifting
method set forth in McDonnell Douglas Corp. v.
Green, requiring the complainant to “carry the
initial burden…of establishing a prima facie case of
racial discrimination.” 411 U.S. 792, 802, 93 S.Ct.
1817, 1824 (1973). “This may be done by showing (i)
that he belongs to a racial minority; (ii) that he applied
and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications,
he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek
applicants from persons of complainant's
qualifications.” Id. The Tenth Circuit has
articulated and adopted a modified McDonnell
Douglass formulation for establishing a prima
facie case of reverse discrimination. Notari v.
Denver Water Dept., 971 F.2d 585, 589 (10th Cir. 1992).
“A prima facie case under McDonnell Douglas
raises an inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than
not based on consideration of impermissible factors.”
Id. (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949 (1978)).
The Court explained “that it is appropriate to adjust
the prima facie case to reflect the reverse discrimination
context of a lawsuit because the presumptions in Title VII
analysis that are valid when a plaintiff belongs to a
disfavored group are not necessarily justified when the
plaintiff is a member of an historically favored
group.” Id. (internal quotations
omitted). Because the two legal standards for
discrimination and reverse discrimination are different,
BBU's ability to accurately evaluate Ms. Tellez's
claim was impacted by the classification of her race as
White, rather than Hispanic.
so, Ms. Tellez alleges that she should not be held
accountable for the EEOC's erroneous mischaracterization
of her race as White. (Doc. 11) at 3. The Court finds both
the affidavit from the EEOC Area Director and the Intake
Questionnaire largely irrelevant where there is no evidence
that the EEOC actually investigated, or that BBU had notice
of, any claim of discrimination based on Ms. Tellez's
Hispanic race. “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 and Cty. of Denver, 414 F.3d 1266,
1274 (10th Cir. 2005). While a court will “liberally
construe” a party's EEOC charge, “the charge
must contain facts concerning the discriminatory and
retaliatory actions underlying each claim.” Jones
v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).
Ms. Tellez checked the box representing that she is Hispanic
on the Intake Questionnaire, she failed to clarify or correct
the basis for her race claim when she reviewed and signed the
Charge. (Doc. 8) Ex. B at 1-2. There is no evidence that BBU
had any reason to believe Ms. Tellez was asserting a claim of
discrimination on the basis of Hispanic race where the Charge
specifically stated otherwise. “A plaintiff cannot be
allowed to transfer the allegations mentioned only in the
questionnaire to the charge itself. Not only would this be
circumventing the role of the Commission, but it would be
prejudicial to the employer.” Green v. JP Morgan
Chase Bank Nat. Ass'n, 501 Fed.Appx. 727, 731 (10th
Cir. 2012) (quotation omitted). “[P]ermitting Title VII
plaintiffs to routinely reach back to the contents of intake
questionnaires to expand the scope of a subsequent lawsuit
would, if not eviscerate, then at the very least
significantly undermine the policies underlying the
exhaustion requirement Congress decided to impose upon Title
VII plaintiffs.” Id. at 731-732 (quotation
omitted). “Only the charge is sent to the employer, and
therefore only the charge can affect the process of
conciliation.” Atkins v. Sw. Bell Tel. Co.,
137 Fed.Appx. 115, 118 (10th Cir. 2005) (internal quotation
omitted) (determining employee failed to adequately exhaust
administrative remedies for retaliation claim and therefore
court lacked jurisdiction to hear claim where Plaintiff
raised retaliation claim in intake questionnaire and
affidavit but not in formal charge with EEOC).
while Ms. Tellez claims that she did not know that she could
correct her Charge, BBU correctly points out that Ms. Tellez
did, in fact, amend her Charge. (Doc. 11) at 3, (Doc. 13) at
2. Ms. Tellez also reviewed and signed both the Charge and
the Amended charge under penalty of perjury. (Doc. 8) at Ex.
A and B. At no point prior to the filing of her Complaint did
Ms. Tellez allege any discrimination based on her Hispanic
is nothing in the Charge or other documentation to indicate
EEOC investigated claims based on Hispanic race or that BBU
had any notice of such claims. Therefore, Ms. Tellez failed
to exhaust her administrative remedies for a claim of
discrimination based on her Hispanic race and BBU's
Motion to Dismiss the race discrimination claim is properly
The Motion to Amend
party may amend its pleadings only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). “Although Fed.R.Civ.P. 15(a)
provides that leave to amend shall be given freely, the
district court may deny leave to amend where amendment would
be futile.” Jefferson Cty. 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 it
fails to cure the deficiencies of the complaint. Bauchman
for Bauchman v. West High Sch., 132 F.3d 542, 559 (10th
proposed amended Complaint, Ms. Tellez seeks to add a
sentence stating she exhausted her administrative remedies.
(Doc. 22) at 2 and Ex. A at ¶ 4. Pursuant to the
Court's previous analysis that Ms. Tellez failed to
exhaust her administrative remedies for the claim of
discrimination based on her Hispanic race, amendment of the
Complaint as requested would be futile. Therefore, the Motion
to Amend is denied as to the race discrimination claim. The
Court finds that where Ms. Tellez properly exhausted her
administrative remedies as to the sex discrimination claim,
the Motion to Amend is properly granted as to that claim.
Motion to Dismiss (Doc. 7) is granted, in part, and denied,
Motion to Amend (Doc. 22) is granted, in part, and denied, in
Plaintiff s discrimination claim based on Hispanic race is
dismissed without prejudice; and
Plaintiff may amend her Complaint to establish that she has
exhausted her administrative remedies as to the sex
 In its Supplemental Brief, BBU
describes how a prima facie case for reverse
discrimination requires a heightened standard than
traditional discrimination. (Doc. 8) at 7, (Doc. 43) at 2,
4-5. BBU claims this distinction significantly impacted its
investigation and analysis of Ms. Tellez's claim, as well
as its determination that Ms. Tellez would not be able to
establish her prima facie case based on the
heightened standard. Id.
 The New Mexico Supreme Court has
granted certiorari in Garcia v. Valley Pub.
Schs., 2016-NMCA-034, a case in which the New Mexico
Court of Appeals changed the standard for reverse
discrimination cases under the NMHRA, departing from the
Tenth Circuit's heightened standard from Notari.
The Court agrees with BBU that because the case was decided
after Plaintiff's Complaint was filed, it did not impact
BBU's analysis. Likewise, it has no bearing on the
Court's reasoning herein.