United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY
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.
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 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).
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.
The Amended Complaint
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.
Standard of Review
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.
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).
Ms. Tellez's FMLA claims provide the basis for this
Court's jurisdiction, those claims are addressed first.
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).
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 ...