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Greene v. Simon Property Group, Inc.

United States District Court, D. New Mexico

May 3, 2017



         THIS 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.


         Plaintiffs' 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 (“NMHRB”).[1]

         While 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.


         Pursuant 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)).

         “When 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.


         A) Plaintiffs Anwar Greene (“Greene”) and Lee Gibson (“Gibson”)

         On June 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.

         Both 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.


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         B) Discrimination Charges filed by the Plaintiffs (in chronological order)

         Gibson's Charge # 1

         Gibson 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.

         Greene's Charge # 1

         Greene 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.

         Gibson's Charge # 2

         Gibson 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.

         Gibson's ...

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