United States District Court, D. New Mexico
TERYSA M. WELCH, Plaintiff,
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
matter comes before the Court upon Individual
Defendants [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.
The Second Amended Complaint (Doc. 88): Counts I, III and
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.
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.
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.
Undisputed Relevant Evidence
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
The August 2009 Charge of Discrimination
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.
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.
“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
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.
The March 2011 Charge ...