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Welch v. City of Albuquerque

United States District Court, D. New Mexico

April 4, 2017

TERYSA M. WELCH, Plaintiff,
v.
CITY OF ALBUQUERQUE, a New Mexico Municipality; RAYMOND SCHULTZ, ELIZABETH PAIZ, WILLIAM ROSEMAN, JOSEPH HUDSON, DAVID HUBBARD, ROBERT SMITH, CECIL KNOX, J. R. POTTER, KEVIN GAGNE, SUE NEAL, and JOHN DOES I-V, Individually and as agents and employees of the City of Albuquerque, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Individual Defendants[1] [sic] Motion for Summary Judgment Addressing Counts I, III, and IV and Memorandum in Support Thereof (Motion for Summary Judgment), filed on November 30, 2016. (Doc. 232). Plaintiff filed a response on January 20, 2017, and Individual Defendants filed a reply on February 10, 2017. (Docs. 243 and 251). Having reviewed and considered the Motion for Summary Judgment and the accompanying briefing, the Court denies the Motion for Summary Judgment in part and grants it in part.

         A. Background

         1. The Second Amended Complaint (Doc. 88): Counts I, III and IV[2]

         Count I asserts Title VII claims for gender discrimination and retaliation. Plaintiff alleges in Title VII that Defendant City of Albuquerque (City) employed Defendants Schultz, Paiz, Roseman, Hudson, Hubbard, Smith, Knox, and Gagne, who “at all times material to the allegations in this complaint were acting in their supervisory capacity.” (Doc. 88) at ¶ 93. Plaintiff further alleges that these supervisory Defendants along with Defendant Potter subjected Plaintiff to discriminatory employment practices. Id. at ¶ 94.

         Count III asserts New Mexico Human Rights Act (NMHRA) gender discrimination and retaliation claims against the City as Plaintiff's employer. Id. at ¶ 111. Plaintiff alleges that the City acted through the Individual Defendants. Id. at ¶ 112.

         Count IV also asserts NMRHA claims. This time, Plaintiff specifically brings NMHRA gender discrimination and retaliation claims against all of the Individual Defendants. Id. at ¶ 119. The Court notes that the Count IV claims against Defendants Paiz, Roseman, Knox, and Neal have since been dismissed. (Doc. 258). Consequently, only the Count IV NMHRA claims against Defendants Schultz, Hudson, Hubbard, Smith, Potter, and Gagne remain.

         2. Undisputed Relevant Evidence

         The Individual Defendants contend that they are entitled to summary judgment on Counts I, III, and IV because Plaintiff failed to exhaust administrative remedies as to her Title VII and NMHRA claims. The Individual Defendants specifically argue that Plaintiff did not exhaust administrative remedies with respect to an August 24, 2009, Charge of Discrimination and a March 9, 2011, Charge of Discrimination. Plaintiff claims that she filed a total of four Charges of Discrimination, but only includes in her response one additional Charge of Discrimination, dated February 21, 2012. Considering this situation, the Court will address the issue of exhaustion of administrative remedies as it relates to the August 2009, March 2011, and February 2012 Charges of Discrimination.

         a. The August 2009 Charge of Discrimination

         On August 24, 2009, Plaintiff submitted a Charge of Discrimination to the Equal Employment Opportunity Commission (EEOC) office, which names the Albuquerque Police Department (APD), Plaintiff's employer, as the discriminating party and includes APD's address. (Doc. 232-1) at 1. Plaintiff alleges gender discrimination and retaliation in violation of Title VII. Id.

         The Court notes that the section of the Charge of Discrimination form asking for the name of the discriminating party lists “Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency” as choices for a discriminating party. Id. That section of the Charge of Discrimination does not state that a charging party can name a “person” as a discriminating party.

         The “PARTICULARS” or narrative section of the August 2009 Charge of Discrimination form does not mention any of the Individual Defendants by name, but Plaintiff submitted a 17-page attachment which specifically names Defendants Hudson, Hubbard, Smith, Potter, and Gagne and describes their purported actions toward Plaintiff. Id.; (Doc. 243-1) at 1-19. The Charge of Discrimination further notes that the discrimination is continuing, beginning on February 1, 2005, and going through August 24, 2009. (Doc. 232-1) at 1.

         Plaintiff later mentions in the February 2012 Charge of Discrimination that the EEOC issued a cause finding on the August 2009 Charge of Discrimination. (Doc. 243-1) at 20. Plaintiff, however, did not submit that EEOC determination.

         b. The March 2011 Charge ...


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