United States District Court, D. New Mexico
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 ...