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Kibler v. Genuine Parts Company

United States District Court, D. New Mexico

October 2, 2017




         This matter is before the Court on the Individual Defendants' Motion to Dismiss Based on Failure to Exhaust Administrative Remedies, filed on May 3, 2017. (Doc. 11.) Jurisdiction arises under 28 U.S.C. § 1332(a).[1] Having considered the submissions of counsel and relevant law, the Court will DENY the motion.

         I. Factual and Procedural Background

         At issue in this suit are Plaintiff's claims of age and gender discrimination and retaliation in violation of the New Mexico Human Rights Act (NMHRA), N.M. Stat. Ann. §§ 28-1-1-15 (1978). Plaintiff worked for Defendant Genuine Parts Company (NAPA) for almost 39 years, most recently as a wholesale manager. (Doc. 1-1 (Compl.) ¶¶ 8, 12; see also Doc. 1-8-C.) Plaintiff received numerous awards and recognitions during her career, including “an award for her 2015 sales at an award ceremony in February 2016 . . . .” (Compl. ¶¶ 9, 13.) Nevertheless, NAPA terminated Plaintiff on May 13, 2016, allegedly for “performance” issues. (Id. ¶¶ 7, 13.) Plaintiff disputes that she was terminated for performance issues and asserts that “[h]er termination was the end result of a series of discriminatory actions taken against her by [Defendants] Valenti and Kessler that began . . . in July 2014.” (Id. ¶ 14.)

         Plaintiff filed a Charge of Discrimination with the EEOC on May 27, 2016. (Doc. 1-8-C.) The Charge of Discrimination form directs the charging party to name “the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others.” (Id. at 1.) Plaintiff named “NAPA Albuquerque DC” and listed an address in Albuquerque, New Mexico. (Id.) Plaintiff did not specifically name Defendants Valenti or Kessler in this section. (Id.) Under the “Particulars” section of the form, Plaintiff described the discrimination as follows:

Statement of Harm: I was hired at NAPA on September 6, 1977, as a Packer, and most recently held the position of Wholesale Manager. During my tenure, I was the first salesperson to hit over $1 million sales in the calendar year. Between 1977 and 2014, I never received any write ups or disciplinary actions. I was a loyal and dedicated employee, during my nearly 39 years of employment with the company. I have received numerous recognition and awards, including multiple plaques for quota performance and top employee. On or about February, 2016, I was introduced by Albuquerque to by [sic] our General Manager as the “Top Dog[, ]” . . . and with all my accomplishments with the company I often felt as though I was not a valuable employee. On or about July 28, 2015, I was called into Mr. Valenti's office to have a meeting with him and Mr. Kessler, a month later, on August 31, 2015, Mr. Kessler, informed me that Mr. Valenti would be placing me on a Performance Improvement Plan (PIP) for 120 days in regards to my communication skills and customer follow up. During the 120-days performance review period, I was constantly being called into meetings with Mr. Valenti and Mr. Kessler, and I was accused of discussing my work problems with my peers and customers. This caused an abundant amount of undue stress and a hostile work environment and it in which [sic] resulted in me seeking medical attention. I talked to Ms. Alberta Santistvan [sic], HR, about my situation and she advise [sic] me to elevate my concern to [] Ms. Quin Clifton, Western Division HR Manager. Ms. Quin took over my complaint and came down to do an investigation. During her investigation I turned over numerous emails and documents, including a picture of a penis with sperm shooting out of it that Mr. Kessler, had drawn on a company vehicle while on a business trip that I attended. Following the investigation, there were no changes made to my work environment . . . . My PIP ended on December 31, 2015, without incident, and without prior notification on May 13, 2016, I was terminated.

(Id. at 1-2.)

         Plaintiff submitted an affidavit and stated that she did not receive “legal advice in the course of filing the Charge of Discrimination.” (Doc. 40-1 ¶ 2.) Plaintiff retained her current attorney, Mr. Timothy L. White, on June 13, 2016. (See Doc. 19-2; see also Doc. 40-1.) Plaintiff stated in her affidavit that she “first contacted Mr. White about the possibility of representing me on June 6, 2016 via email, but [she] did not speak to Mr. White until June 8, 2016, briefly, and only to set an appointment to meet in person.” (Doc. 40-1 ¶ 3.)

         Defendants submitted an affidavit from Ms. Alberta Santistevan, an employee of NAPA, who stated that on September 28, 2015, Plaintiff said she “had consulted with a lawyer about work-related concerns.” (Doc. 42-1 ¶¶ 1-3.) Ms. Santistevan stated that Plaintiff sent her an email on June 3, 2016, which read: “Alberta, I am requesting additional time before I make a decision on the ‘Severance Agreement and General Release' papers due to the fact that my lawyer is still reviewing them.” (Id. ¶ 4.) Ms. Santistevan further stated that Plaintiff sent her another email on June 8, 2016, on which she copied Mr. White and said: “I had to retain a different lawyer do [sic] to the fact that I was not getting any responses back from the original that was looking over the agreement. Is it possible to ask for additional time for my new lawyer to review?” (Id. ¶ 5.)

         On June 14, 2016, Mr. White emailed Ms. Santistevan, and stated:

We represent Ms. Kibler in the claims she is prepared to bring against your company and Martin Valenti individually arising out of her termination. You probably have seen by now the Charge of Discrimination she has filed with EEOC, and her claims are in summary as stated in that Charge. We are in the process of amending that Charge in order to assert the claims against Mr. Valenti individually, but should your company desire to try to resolve this matter privately without the need of the lawsuit that will follow, please contact this office. If your company does not wish to discuss resolving this now by agreement, I will be filing suit by June 30 and amending later to bring the age and sex discrimination claims represented in the Charge. Please respond at your earliest opportunity.

(See Doc. 21-1 at 3.) Plaintiff never filed an amended Charge. (See Doc. 21 at 3.)

         On September 1, 2016, Mr. White sent an 18-page letter to Ms. Lisa M. Szafranic, counsel for Defendants NAPA, Valenti, and Kessler, “to see if your client is interested in resolving this now before we go through the entirety of the administrative process with EEOC.” (See Docs. 1-8 ¶ 2-3; 1-8-A at 5.)[2] Mr. White outlined the bases of Plaintiff's claims for age and gender discrimination and retaliation and described numerous instances of allegedly discriminatory conduct by Defendants Valenti and Kessler. (Doc. 1-8-A at 5-22.) Mr. White concluded, “My client has endured far too much at these mens' [sic] hands, and would prefer to resolve this now before suing your client and these two men, Valenti and Kessler, individually . . . .” (Id. at 22.)[3]

         Plaintiff asserts that “[o]n October 7, 2016, the parties attempted a mediation with EEOC, after which” Mr. White emailed shared counsel for all three Defendants regarding the action “Kathie Kibler v. NAPA, Valenti and Kessler.”[4] (Doc. 19 at 2.) The EEOC issued a Notice of Right to Sue on January 17, 2017 (Doc. 1-8-D), and an Order of Non-Determination on February 3, 2017 (Doc. 1-8-E). The Order of Non-Determination identified the case as “Kathleen Kibler vs NAPA Albuquerque DC, ” the same parties Plaintiff identified in her initial Charge of Discrimination form. (See Docs. 1-8-C; 1-8-E.)

         Plaintiff filed suit against the three Defendants in the Second Judicial District Court, County of Bernalillo, State of New Mexico, on March 13, 2017, alleging: (1) discrimination on the basis of sex; (2) discrimination on the basis of age; and (3) retaliation, all in violation of the NMHRA. (Compl.) Defendants removed the case to this Court on April 26, 2017, on the basis of diversity. (Doc. 1.) The Individual Defendants now bring this Motion to Dismiss Based on Failure to Exhaust Administrative Remedies. (Doc. 11.)

         II. ...

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