United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Opposed Motion for Summary
Judgment (Doc. 44), filed by Defendant Simon
Property Group, Inc. on January 10, 2017. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to have me serving as the presiding judge and
entering final judgment. Docs. 7, 14, 15, 16. Having
considered the parties' arguments and all relevant
authority, the Court will grant the motion in part.
Second Amended Complaint is almost exclusively premised upon
alleged acts of racial and sexual discrimination. However,
none of these acts occurred during the filing period
applicable to this case. On June 2, 2016, the Honorable Steve
C. Yarbrough therefore entered an order permitting limited
discovery as to whether Plaintiffs' claims in this case
are exhausted and timely. See Doc. 24.
Because of this limitation on discovery, the Court will limit
its inquiry only to the arguments concerning exhaustion and
timeliness of claims based upon Plaintiffs' charges of
discrimination filed with the United States Equal Employment
Opportunity Commission (“EEOC”) and the New
Mexico Human Rights Bureau
the Court would in no way condone the conduct that Plaintiffs
have alleged, as the Tenth Circuit has said,
“[u]nlitigated bygones are bygones.” Duncan
v. Manager, Dep't of Safety, City & Cty. of
Denver, 397 F.3d 1300, 1308 (10th Cir. 2005). For this
reason, the Court will grant summary judgment to Defendant on
Plaintiffs' hostile work environment claims (Count I).
Given Plaintiffs' concession that administrative remedies
have not yet been exhausted as to Greene's Count II
retaliation claim, it will be dismissed without prejudice.
Finally, summary judgment is denied as to Gibson's
retaliation claim in Count II insofar as is based on the
allegations of his Fourth Charge of Discrimination.
SUMMARY JUDGMENT STANDARD
to Federal Rule of Civil Procedure 56, “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Summary judgment is not ‘a
disfavored procedural shortcut but rather [it is] an integral
part of the Federal Rules as a whole, which are designed to
secure the just, speedy, and inexpensive determination of
every action.'” Garcia v. Vilsack, 628
F.Supp.2d 1306, 1308-09 (D.N.M. 2009) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986)).
applying this standard, the Court examines the factual record
and reasonable inferences therefrom in the light most
favorable to the party opposing summary judgment.”
Hartwell v. Sw. Cheese Co., L.L.C., No. CV 15-1103
JAP/GJF, 2017 WL 944125, at *2 (D.N.M. Jan. 23, 2017). In
this district, “[a]ll material facts set forth in the
Memorandum will be deemed undisputed unless specifically
controverted.” D.N.M.LR-Civ 56.1(b). As evidenced by
Plaintiffs' Response, there are no genuine disputes as to
any fact material to the resolution of Defendant's
Motion. See Doc. 49 at 1-2. Accordingly, the only
questions to be resolved concern whether Defendant is
entitled to judgment as a matter of law.
UNDISPUTED MATERIAL FACTS 
Plaintiffs Anwar Greene (“Greene”) and Lee Gibson
1, 2008, Defendant Simon Property Group, L.P.
(“Defendant Simon”) hired Plaintiff Anwar Greene
(“Greene), an African American male, as a maintenance
worker at the Cottonwood Mall in Albuquerque. Defendant Simon
had earlier hired Plaintiff Lee Gibson
(“Gibson”), a Caucasian male, as a maintenance
worker at that same location in May 2008.
Plaintiffs worked for Defendant Simon for more than six
years. They held the same positions at the same location, and
their tenure spanned virtually the identical timeframe. Green
submitted his letter of resignation effective December 24,
2014. Defs' Exh. 2, Doc. 44-1 at 4. Gibson
submitted a letter tendering his formal resignation as of
December 26, 2014. Defs' Exh. 3, Doc. 44-1 at 6.
Both during and after their employment, they filed numerous
charges of discrimination.
Discrimination Charges filed by the Plaintiffs (in
Charge # 1
first filed a Charge of Discrimination (No. 846-2012-31974)
based on sex against Defendant Simon on April 3, 2012. Gibson
alleged that he was subjected to sexual harassment by an
unnamed male leasing director culminating in January 2012
when the leasing director ran his hand over Gibson's
penis. Defs' Exh. 8, Doc. 44-2 at 19.
Plaintiffs' Second Amended Complaint identifies the
unnamed male leasing director as Defendant Scott Wides.
Charge # 1
first filed a Charge of Discrimination (No. 543-2012-00774)
also based on sex against Defendant Simon on April 11, 2012.
Defs' Exh. 5, Doc. 44-2 at 2. Greene alleged
that in January 2012, he observed an unnamed male leasing
director, later identified as Defendant Scott Wides, touch
Plaintiff Gibson's penis and that he also heard Wides
make sexual comments.
Charge # 2
filed a Second Charge of Discrimination (No. 543-2012-01399)
against Defendant Simon on September 4, 2012. Gibson stated
that from March 7, 2012, through August 2, 2012, he was
excluded and was isolated on the job in retaliation for
filing his initial charge of sex discrimination. Defs'
Exh. 12, Doc. 44-3 at 13. The Second Charge also
alleged that Gibson was shown “a racist text” by
another employee, later identified as Defendant Russell
Little. See Doc. 40 at 4-5. The boxes marked on the
charge indicated that Gibson was alleging discrimination
based on both race and retaliation.