United States District Court, D. New Mexico
January 4, 2017
NORMAN VIGIL, Plaintiff,
NEW MEXICO PUBLIC EDUCATION DEPARTMENT, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Defendant's Motion to
Dismiss the First, Second and Third Causes of Action of
Plaintiff's Complaint Based on Exhaustion Defects,
(Doc. 15), filed March 3, 2016; Defendant's
Substituted Memorandum in Support of It's (sic)
Motion to Dismiss [Based on Rules 12(b)(1) and (6)] the
First, Second and Third Causes of Action of Plaintiff's
Complaint based on Exhaustion Defects (the
“Motion”), (Doc. 17), filed March 8, 2016;
Plaintiff's Response to Defendant's Motion to
Dismiss (the “Response”), (Doc. 19), filed
March 29, 2016; Defendant's Reply to Plaintiff's
Response Regarding the Motion to Dismiss [Based on Rules
12(b)(1) and (6)] the First, Second and Third Causes of
Action of Plaintiff's Complaint based on Exhaustion
Defects (the “Reply”), (Doc. 22), filed
April 14, 2016; and Defendant's Notice of Partial
Withdrawal of its Motion to Dismiss [Based on Rules 12(b)(1)
and (6)] and Affirmance and Renewal of Motion to Dismiss with
Respect to Plaintiff's Retaliation Claims in Counts I and
III of the First Amended Complaint (the “Notice of
Partial Withdrawal”), (Doc. 38), filed May 23, 2016.
States District Judge Kenneth Gonzales referred this case to
Magistrate Judge Carmen E. Garza to perform legal analysis
and recommend an ultimate disposition. (Doc. 75). After
considering the parties' filings and the relevant law,
the Court RECOMMENDS that the Motion to Dismiss with respect
to Plaintiff's retaliation claims in the first and third
counts of the Amended Complaint be GRANTED.
Plaintiff filed his Complaint for Damages for
Discrimination and Retaliation (the
“Complaint”) in the First Judicial District Court
for the State of New Mexico. (Doc. 1 at 1). Plaintiff's
Complaint alleged that Defendant violated his rights under
Title VII of the Civil Rights Act (“Title VII”),
42 U.S.C. §§ 2000e et seq.; the Americans
with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101 et seq.; the New Mexico Human
Rights Act (“HRA”), NMSA 1978, §§
28-1-1 et seq.; the New Mexico Whistleblower
Protection Act (“WPA”), NMSA 1978 §§
10-16C-1 et seq.; and committed the common law tort
of constructive discharge. (Doc. 1-1, Ex. A at 1).
removed the case to this Court on January 22, 2016. (Doc. 1).
Plaintiff has asserted causes of action for disability and
sex discrimination in violation of the ADA, Title VII, HRA,
WPA, as well as constructive discharge and retaliation in
violation of the ADA and HRA. (Doc. 1-1, Ex. A at 8-11;
See Doc. 38 at 2 n.1). Pursuant to Federal Rules of
Civil Procedure 12(b)(1) and (6), Defendant moved to dismiss
the first, second, and third causes of action in the
Complaint for failure to exhaust. (Doc. 17). After Plaintiff
filed his Response to the Motion, he filed a First
Amended Complaint for Damages for Discrimination and
Retaliation (the “Amended Complaint”), in
which Plaintiff alleged that he exhausted his administrative
remedies for all of his claims. (See Doc. 33). Based
on the Amended Complaint, Defendant filed notice with the
Court that it agreed to partially withdraw its Motion.
(See Doc. 38). Therefore, currently before the Court
is Defendant's argument that Plaintiff's retaliation
claims based on the ADA and HRA, as set forth in the first
and third causes of action, (See Doc. 33
¶¶ 70, 80, 81), should be dismissed for failure to
exhaust administrative remedies. (Doc. 38 at 1, 3).
facts are alleged as follows: Plaintiff worked for Defendant
from 1997 to 2014 as a computer/IT specialist. (Doc. 1-1, Ex.
A ¶ 5). Beginning in 2000, Defendant moved the IT staff,
including Plaintiff, to the basement of the Jerry Apodaca
Education Building (“JAE Building”). (Doc. 1-1,
Ex A ¶ 8). In 2010, the New Mexico Environment
Department completed an environmental assessment in the area
that revealed potential sources of subsurface contamination
near the JAE Building. (Doc. 1-1, Ex A ¶ 10). At
approximately the same time, employees of Defendant began to
suffer from respiratory symptoms and noticed an odor in the
JAE Building basement. (Doc. 1-1, Ex. A ¶ 11).
relocated the IT staff in the JAE Building from the basement
to the third floor in December 2010. (Doc. 1-1, Ex. A ¶
12). After the move, the Communications Workers of America
union (“CWA”) requested an investigation into the
air quality in the JAE Building basement. (Doc. 1-1, Ex. A
¶ 13). The investigation revealed that the JAE Building
basement was inadequately ventilated and had mold
contamination, elevated levels of Freon, and elevated levels
of organic compounds. (Doc. 1-1, Ex. A ¶ 13). In 2012,
asbestos was also found in the JAE Building basement. (Doc.
1-1, Ex. A ¶ 15).
suffered health problems at this time, including respiratory,
neurological/physiological, and psychological issues. (Doc.
1-1, Ex. A ¶ 17-19). Plaintiff was diagnosed with
traumatic neurotoxicity, Post Traumatic Stress Disorder
(“PTSD”), Major Depressive Disorder, and anxiety,
all of which his doctors linked to his exposure to
contaminants in the JAE Building basement. (Doc. 1-1, Ex. A
¶ 20). Beginning in 2010, Plaintiff requested and was
approved for worker's compensation due to his illnesses;
however, his requests to be moved from the JAE Building to
another building were denied by Defendant. (Doc. 1-1, Ex. A
¶¶ 23, 25). Plaintiff asserts that during this time
he was ridiculed by his supervisors, especially after being
directed by his doctor to wear a respirator mask to work
starting in March 2013. (Doc. 1-1, Ex. A ¶¶ 26-29).
September 2013, Defendant moved IT employees back to the JAE
Building basement after tests showed that contamination
levels were below levels required by the Occupational Safety
and Health Administration. (Doc. 1-1, Ex. A ¶ 30). Soon
thereafter, CWA filed a suit to prevent employees from having
to work in the JAE Building basement. (Doc. 1-1, Ex. A ¶
31). Plaintiff signed an affidavit stating his health
problems and his belief that they were linked to the JAE
Building in support of this lawsuit. (Doc. 1-1, Ex. A ¶
32). In a settlement between CWA and the State of New Mexico,
Defendant agreed to do further testing for contaminants in
the JAE Building basement. (Doc. 1-1, Ex. A ¶ 33).
February 2014, Plaintiff was asked to once again move down to
the JAE Building basement, which he agreed to do on a trial
basis. (Doc. 1-1, Ex. A ¶¶ 34-35). Soon after,
Plaintiff began experiencing chest heaviness, headaches, and
panic attacks and asked to work in a different building.
(Doc. 1-1, Ex. A ¶¶ 36-37). Plaintiff was moved to
an office on the first floor of the JAE Building. (Doc. 1-1,
Ex. A ¶ 39). Plaintiff continued to experience health
problems in the office on the first floor and again requested
a transfer to a different building. (Doc. 1-1, Ex. A
¶¶ 41-42). Plaintiff continued to ask Defendant to
move during the summer and fall of 2014, but Defendant
refused to move him to another building, although two female
employees' requests to be moved were granted. (Doc. 1-1,
Ex. A ¶¶ 48-50).
filed a Charge of Discrimination (the “Charge”)
with the Equal Employment Opportunity Commission
(“EEOC”) and the New Mexico Human Rights Bureau
(“HRB”) in July 2014. (Doc. 17-1, Ex. A). In
October 2014, the Worker's Compensation Administration
ordered Defendant to move Plaintiff from the JAE Building for
health reasons. (Doc. 1-1, Ex. A ¶ 52). Defendant had
Plaintiff leave the JAE Building, but did not move him to
another building, so Plaintiff went on worker's
compensation. (Doc. 1-1, Ex. A ¶ 53). After being
hospitalized with psychological issues in October 2014 and
being unable to come to an agreement with Defendant in
November 2014, Plaintiff applied for duty disability
benefits. (Doc. 1-1, Ex. A ¶¶ 54-55).
Plaintiff's disability application was approved and made
retroactive to June 2014. (Doc. 1-1, Ex. A ¶ 57). On
October 3, 2015, Plaintiff received his Right to Sue Letter
from the EEOC and subsequently filed his Complaint. (Doc. 19
at ¶ 9).
Standard of Review
courts are courts of limited jurisdiction. United States
ex rel. King v. Hillcrest Health Ctr., Inc., 264 F.3d
1271, 1278 (10th Cir. 2001). In general, a plaintiff has the
burden to demonstrate that a court has jurisdiction to hear
his case. Campos v. Las Cruces Nursing Ctr., 828
F.Supp.2d 1256, 1265 (D.N.M. 2011) (citing Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 104 (1998)
(“[T]he party invoking federal jurisdiction bears the
burden of establishing its existence.”)).
Rule 12(b)(1), a party may assert that the court lacks
subject matter jurisdiction over a claim. Fed.R.Civ.P.
12(b)(1). 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.'” Campos, 828
F.Supp.2d at 1265 (quoting Ruiz v. McDonnell, 299
F.3d 1173, 1180 (10th Cir. 2002)). On a facial attack,
“‘a plaintiff is afforded safeguards similar to
those provided in opposing a [R]ule 12(b)(6) motion: the
court must consider the complaint's allegations to be
true.'” Id. (quoting Alto Eldorado
Partners v. City of Santa Fe, No. CIV. 08-0175 JB/ACT,
2009 WL 1312856, at *8 (D.N.M. Mar. 11, 2009) (unpublished)).
contrast, on a factual attack, “‘a district court
may not presume the truthfulness of the complaint's
factual allegations. 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. (quoting Alto Eldorado
Partners, 2009 WL 1312856, at *8-9). “[A]t issue
in a factual [Rule] 12(b)(1) motion is the trial court's
jurisdiction - its very power to hear the case.”
Id. (quoting Williamson v. Tucker, 645 F.2d
404, 412-13 (5th Cir. 1981)). In the context of exhaustion
claims, it is appropriate for a court “to consider
evidence beyond the pleadings in resolving a challenge to
subject-matter jurisdiction.” Id. at 1262 n.3
(quoting Jenkins v. Educ. Credit Mgmt. Corp., No.
05-2007, 212 Fed.Appx. 729, 733 (10th Cir. Jan. 4, 2007)
Defendant challenges whether Plaintiff exhausted his
administrative remedies as to the retaliation claim. By
challenging whether Plaintiff followed the proper
administrative procedure prior to filing this lawsuit in this
Court, Defendant's Motion challenges the facts underlying
Plaintiff's allegations of jurisdiction. See Davis ex
rel. Davis v. United States, 343 F.3d 1282, 1295-96
(10th Cir. 2003). Therefore, Defendant's Motion presents
a factual attack, rather than a facial attack, as to whether
this Court has jurisdiction over this case. Accordingly, the
Court does not presume the truthfulness of Plaintiff's
allegations, and the Court may consider evidence outside of
the pleadings in resolving the Motion.
issue before this Court is whether Plaintiff exhausted his
administrative remedies as to the retaliation claims based on
the ADA and HRA. In its Motion, Defendant argues that
Plaintiff did not exhaust his administrative remedies with
respect to the retaliation claims. (Doc. 17 at 9-10).
Specifically, Defendant contends that Plaintiff did not raise
the retaliation claims in the original EEOC filing and may
not expand the claim to encompass more claims than previously
brought before the EEOC. (Doc. 17 at 9-10). Plaintiff
responds that he exhausted his administrative remedies. (Doc.
19 at 10-13). Plaintiff argues that the written description
of the events in the Charge and information provided by
Plaintiff in an EEOC Intake Questionnaire (the “Intake
Questionnaire”) prove that the retaliation claim
“‘could reasonably have been expected to
follow' the [C]harge.” (Doc. 19 at 13) (quoting
Jones v. U.P.S., Inc., 502 F.3d 1176, 1187 (10th
Title I of the ADA, a plaintiff must exhaust his
administrative remedies prior to filing a lawsuit.
Jones, 502 F.3d at 1183 (citing MacKenzie v.
City & Cnty. of Denver, 414 F.3d 1266, 1274
(10th Cir. 2005)). “The first step to exhaustion is the
filing of a charge of discrimination with the EEOC.”
Id. (citing Jones v. Runyon, 91 F.3d 1398,
1399 n. 1 (10th Cir. 1996)).
concluding whether a plaintiff filed a Charge, the Court must
“determine the scope of the allegations raised in the
EEOC charge because ‘[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.'” Jones, 502 F.3d at 1186 (quoting
MacKenzie, 414 F.3d at 1274) (citing Jones v.
Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000)
(“[T]he facts alleged in the charge must be
sufficiently related to the claim such that those facts would
prompt an investigation of the claim.”)). As Plaintiff
notes, a Court should liberally construe charges that are
filed with the EEOC in deciding whether a claim has been
administratively exhausted. Id. However, a
court's “inquiry is limited to the scope of the
administrative investigation that can reasonably be expected
to follow from the discriminatory acts alleged in
the administrative charge.” Id. (emphasis in
Charge filed with the EEOC must contain facts about the
discriminatory and retaliatory actions alleged. Id.
“The failure to mark a particular box creates a
presumption that the charging party is not asserting
claims.” Id. (citing Gunnell v. Utah
Valley State Coll., 152 F.3d 1253, 1260 (10th Cir.
1998)). However, that presumption may be rebutted “if
the text of the charge clearly sets forth the basis of the
Plaintiff filed a Charge with the EEOC on July 18, 2014.
(Doc. 17-1, Ex. A). The Charge requires an individual to
check boxes based on the type of discrimination the
individual is claiming. (See Doc. 17-1, Ex. A).
Plaintiff checked the boxes for sex and disability
discrimination, but did not check the box for retaliation.
Because Plaintiff did not check the retaliation box in the
Charge, he must show that the narrative in the Charge puts
Defendant on notice that Plaintiff is alleging retaliation.
In the narrative portion of the Charge, Plaintiff stated:
STATEMENT OF HARM: I've been employed by the [Defendant]
since 1997 and my current position is IT Systems Manager-IV.
I have been harassed by the Deputy Secretary and denied
reasonable accommodation requests. I am aware of female
employees who have been given reasonable accommodations and I
have never been given a valid reason as to why my requests
have been denied. I am currently on Workman's
Comp[ensation] leave due to the situation at work.
STATEMENT OF DISCRIMINATION: I believe I have been
discriminated against due to my sex (Male) and due to
disability and this is in violation of Title VII of the Civil
Rights [A]ct of 1964, as amended and the Americans [w]ith
(Doc. 17-1, Ex. A).
argues that his statement in the Charge, “I have been
harassed by the Deputy Secretary and denied reasonable
accommodation requests, ” refers to the retaliation he
alleges. (Doc. 19 at 12). Plaintiff's Charge clearly
describes his allegations of sex and disability
discrimination; however, Plaintiff does not specifically
allege or describe retaliation. Thus, Plaintiff does not
clearly set forth the basis of the retaliation claim, and
Defendant was not put on notice that Plaintiff alleged
retaliation. As stated above, Plaintiff's claim in this
Court is limited by the EEOC investigation. The EEOC
Determination letter states that “[b]ased upon the
evidence and the record as a whole, there is reasonable cause
to conclude that [Plaintiff] was discriminated against
because of his disability and sex (male) [in] violation of
the ADA and Title VII.” (Doc. 19-3, Ex. 1B). It is
clear from this Determination letter that the EEOC did not
investigate a claim of retaliation based on Plaintiff's
Charge. Therefore, Plaintiff did not exhaust his
administrative remedies with regard to the retaliation
Plaintiff did not check the retaliation box in the Charge, he
did check the retaliation box on his Intake Questionnaire.
Plaintiff asserts that he does not know why he did not check
the retaliation box on the Charge. (Doc. 19-1, Ex. A, 1A).
Although Plaintiff admits that he cannot transfer allegations
from the Intake Questionnaire to his Charge, he states that
the Intake Questionnaire “sheds light on what [he]
intended by the harassment allegations.” (Doc. 19 at 13
n.3) (citing Green v. JP Morgan Chase Bank N.A., No.
11-5153, 501 Fed.Appx. 727, 731-32 (10th Cir. Nov. 1, 2012)
Green, the Tenth Circuit held that a District Court
did not err in relying on the information in a Charge rather
than an Intake Questionnaire. Id. at 731. The Tenth
Circuit stated that “it would defeat the statutory
scheme to find exhaustion where an employee includes a claim
in the intake questionnaire, but then omits it in a timely
subsequent formal charge that forms the basis for the
administrative proceedings.” Id. (citing
Barzanty v. Verizon Pa., Inc., No. 08-1010, 361
Fed.Appx. 411, 415 (3d Cir. Jan. 20, 2010) (unpublished)).
The Intake Questionnaire and Charge have different purposes.
The Intake Questionnaire “facilitates ‘pre-charge
filing counseling' and allows the [EEOC] to determine
whether it has jurisdiction to pursue a charge, ” and
is not shared with an employer. Barzanty, 361
Fed.Appx. at 415 (citing Fed. Express Corp. v.
Holowecki, 552 U.S. 389 (2008)). Indeed, Defendant never
saw the Intake Questionnaire filled out by Plaintiff. (Doc.
22 at 4). By contrast, the Charge “serves to define the
scope of the [EEOC's] investigation and to notify the
defendant of the charges against it.” Id.
(citing 42 U.S.C. § 2000e-5(b)). Therefore,
“‘[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
Commissioner, but it would be prejudicial to the
employer.'” Green, 501 Fed.Appx. at 731
(quoting Barzanty, 361 Fed.Appx. at 415).
this reason, the Court will not look to the Intake
Questionnaire to “shed light” on Plaintiffs
claims, but will instead look only to the Charge. Because the
Charge does not make any allegation of retaliation, the Court
recommends dismissing the retaliation claims for failure to
exhaust administrative remedies.
reasons discussed above, the Court finds that Plaintiff did
not exhaust his administrative remedies as to the retaliation
THEREFORE RECOMMENDED that Defendant's Motion to
Dismiss the First, Second and Third Causes of Action of
Plaintiff's Complaint Based on Exhaustion Defects,
(Doc. 15), be GRANTED.