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Tellez v. Bimbo Bakeries

United States District Court, D. New Mexico

May 9, 2017



         This matter comes before the Court on Defendant Bimbo Bakeries' Motion and Memorandum in Support of Summary Judgment, brought under Fed.R.Civ.P. 56, and filed on October 24, 2016. (Doc. 42). Defendant Bimbo Bakeries USA, Inc. (BBU) argues that Plaintiff Araceli Tellez (Ms. Tellez) cannot state a claim for sex discrimination under the New Mexico Human Rights Act (NMHRA) or claims for retaliation or interference under the Family and Medical Leave Act (FMLA), as asserted in her Amended Complaint for Discrimination on the Basis of Sex and Retaliation. (Doc. 53). BBU seeks summary judgment in its favor as a matter of law on all of Plaintiff's claims. Having reviewed the submissions of the parties and the relevant law, the Court finds that the motion should be granted.

         I. Procedural Background

         Ms. Tellez filed a Complaint in state court, alleging BBU discriminated against her because she is Hispanic and a female. (Doc. 12-1) at ¶¶ 6 and 20-25. She asserts three Counts against BBU: race discrimination under the NMHRA (Count I), sex discrimination under the NMHRA (Count II), and retaliation[1] under the Family and Medical Leave Act (FMLA) (Count III). Id. at ¶¶ 20-30. BBU removed the matter to this Court on the basis of federal question jurisdiction related to the FMLA claim. (Doc. 1).

         BBU then filed a Partial Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction, alleging Ms. Tellez failed to exhaust her administrative remedies under the NMHRA with respect to the race and sex discrimination claims. (Doc. 7 at 1). The Court granted BBU's Partial Motion to Dismiss as to the race discrimination claim and granted Ms. Tellez's Motion to Amend her Complaint to include a statement that she properly exhausted her administrative remedies with respect to the sex discrimination claim. (Docs. 48 and 49). BBU subsequently filed this Motion for Summary Judgment, seeking dismissal of all remaining claims.

         II. The Amended Complaint

         In her Amended Complaint, Ms. Tellez alleges that after working for BBU for a little over a year, she requested time off to visit her ailing mother in California. (Doc. 53 at ¶¶ 5 and 8). Ms. Tellez was approved for the time off and used vacation leave, but she claims she was not offered any leave under the FMLA. Id. at ¶¶ 9-10. Ms. Tellez states that BBU warned her that her job could not be held open for long and asked whether she would be interested in transferring to BBU's Escondido, California location. Id. at ¶ 9. Ms. Tellez claims that after she moved to California, she was told that BBU did not allow transfers, despite the fact that Ms. Tellez was aware of a male employee who had been allowed to transfer from out of state to BBU's Albuquerque location. Id. at ¶¶ 13-14. As instructed by BBU's Human Resources Representative, Ms. Tellez resigned her position with BBU in Albuquerque and began applying with BBU's Escondido location. Id. at ¶¶ 15-16. Ms. Tellez was unable to obtain a position with BBU in Escondido and ultimately moved back to Albuquerque to find work. Id. at ¶¶ 16-17. She was unemployed for over six months before accepting a job making $5.00 less an hour than she made at BBU. Id. at ¶ 18.

         III. Standard of Review

         Summary judgment is appropriate if there is no genuine dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). 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. Applied Genetics Intl, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Only then does the burden shift to the non-movant to come forward with evidence showing that a genuine issue of material fact exists. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

         The non-moving party may not avoid summary judgment by resting upon the mere allegations or denials of his or her pleadings. Bacchus Indus., Inc., 939 F.2d at 891. Under Rule 56(c), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is genuine; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant.” Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997) (internal quotation marks omitted) (emphasis added).

         IV. Discussion

         Because Ms. Tellez's FMLA claims provide the basis for this Court's jurisdiction, those claims are addressed first.

         A. FMLA Claims

         The FMLA helps ensure employees get leave to care for an immediate family member suffering from a serious health condition. 29 U.S.C. § 2612(a)(1). Employees are eligible for FMLA benefits if they have worked for an employer for at least 12 months and at least 1, 250 hours within those 12 months. Id. at § 2611(2)(A). The FMLA does not require an eligible employee to specifically ask for FMLA benefits; if the employer is on notice that an employee might qualify for FMLA benefits, the employer has a duty to inform the employee that FMLA coverage may apply. Tate v. Farmland Indus., Inc., 268 F.3d 989, 997 (10th Cir. 2001) (explaining employer who placed employee on sick leave was on notice plaintiff might qualify for FMLA and had duty to inform employee of FMLA rights).

         For employees whose FMLA rights have been violated, Section 2615 provides two distinctive theories for recovery: (1) interference/entitlement and (2) retaliation/discrimination. See Dry v. Boeing Co., 92 Fed.Appx. 675, 678 (10th Cir. 2004) (citing 29 U.S.C. § 2615(a)) (“We identified subsection (a)(1) as the ‘interference/entitlement theory' and subsection (a)(2) as the ‘retaliation/discrimination' theory.”). “Beyond differences in the elements and burdens of proof, the two claims differ with respect to the timing of the adverse action.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). An interference claim arises when an employer makes an adverse employment decision before the employee has been allowed to take FMLA leave or while the employee is still on FMLA leave. Id. A retaliation ...

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