United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant's Motion to
Dismiss Plaintiff's Complaint (Motion to Dismiss), filed
November 11, 2016 and Plaintiff's Motion to Convert
Defendant's Motion to Dismiss into a Motion for Summary
Judgment (Motion to Convert), filed February 7, 2017. (Docs.
144, 178). Both motions are now fully briefed. (Docs. 153,
175, 182, and 192). The Court held a hearing on the Motions
on November 2, 2017, at which Michael Baskind appeared for
Plaintiff Equal Employment Opportunity Commission (EEOC) and
Ellen Casey appeared for Defendant New Mexico Department of
Corrections (NMDC). Having considered the Motions, oral
arguments, and applicable law, the Court will deny all
requested relief and order EEOC to file a supplemental
an age discrimination case arising from NMDC's alleged
failure to promote correctional officers over the age of 40.
EEOC filed the case on September 30, 2015 under the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq. on behalf of three
charging parties and an unidentified group of other aggrieved
alleges that NMDC failed to promote Richard Henderson and
Jerry Martinez to the position of Major at Central New Mexico
Correctional Facility because they were both over the age of
40. Complaint at ¶¶ 20 - 25. Former Warden Anthony
Romero (age 38) allegedly told Henderson and Martinez that
while they were qualified for the Major position, he selected
a 31-year-old candidate because he was looking for someone
with “longevity.” Id. at ¶ 27.
Lieutenant Paul Martinez (age 58) also was allegedly passed
over in favor of younger candidates for reassignment to the
desirable Security Threat Intelligence Unit. Id. at
¶¶ 73-74. When Henderson complained, Warden Romero
allegedly directed Robert Tenorio (age 53) to uncover a
policy violation by Henderson. Id. at ¶ 47.
Tenorio refused and later participated as a witness in
Henderson's EEOC complaint. Id. at ¶¶
49-52. Warden Romero then retaliated by, inter alia: (1)
accusing Tenorio of time sheet fraud and ultimately
discharging him and (2) transferring Henderson to less
desirable units. Id. at ¶¶ 34-41; 53.
alleges NMDC and Warden Romero engaged in similar
discrimination against other aggrieved individuals.
Specifically, EEOC asserts that since January 2009 to at
least December 2014 and continuing, NMDC denied employment
opportunities to unidentified workers 40 and over based on
their age. Id. at ¶¶ 66, 70. EEOC also
alleges Warden Romero: (1) made many of the decisions to deny
employment opportunities to older workers; (2) used ageist
comments about longevity, preferring younger workers, and not
promoting employees near retirement; and (3) instilled a
culture of age discrimination that continues to be applied by
NMDC. Id. at ¶¶ 67-69. EEOC seeks an
injunction requiring policy changes and money damages for any
individual adversely impacted by the discrimination.
Id. at ¶¶ A-F.
Amended Complaint alleges three counts (Counts I, II, and IV)
on behalf of a class of unidentified aggrieved individuals
under 29 U.S.C. §§ 623(a)(1) (age discrimination)
and 623(d) (retaliation). NMDC now moves to dismiss those
counts with respect to the unidentified aggrieved individuals
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc.
144). NMDC argues those claims are insufficient under the
Twombly/Iqbal standard and that EEOC failed to
provide sufficient notice about any additional aggrieved
individuals during the pre-filing conciliation period. (Doc.
144, 175). In support of these arguments, NMDC proffered
various exhibits relating to EEOC's investigation and
conciliation. (Exhibits to Doc. 144).
opposes the Motion to Dismiss in its entirety. (Doc. 153).
However, in the event the Court is willing to entertain
evidence regarding pre-filing communications, EEOC asks that
the Motion to Dismiss be converted to a summary judgment
proceeding. (Doc. 178). According to EEOC, the converted
motion should then be denied as moot, as NMDC already filed a
summary judgment motion addressing the adequacy of EEOC's
pre-filing investigation and conciliation and the timeliness
of any post-RCD claims. (Doc. 270) Alternatively, if the
Motion to Dismiss is not converted and the Court determines
the allegations must be supplemented, EEOC is willing to
amend its pleading.
Standard of Review
Court must treat the Motion to Dismiss as a Rule 12(c) motion
for judgment on the pleadings because it was filed after the
answer. See Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 n. 2 (10th Cir. 2002) (noting that “motion
[filed] after … the answer… should generally be
treated as a motion for judgment on the pleadings”). A
Rule 12(c) motion uses the same standard of review that
applies to a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted. Atlantic
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1160 (10th Cir. 2000). The Court must accept all
well-pleaded allegations as true and must view them in the
light most favorable to the plaintiff. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
survive a motion to dismiss, the plaintiff must allege facts
sufficient to state a plausible claim of relief. Id.
at 570. A claim is facially plausible if the plaintiff pleads
facts sufficient for the court to reasonably infer that the
defendant is liable for the alleged misconduct. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability requirement,
' but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
complaint that merely sets forth labels, conclusions, and a
formulaic recitation of the elements of a cause of action
will not suffice. See Twombly, 550 U.S. at 555.
litigation is complex and unique, and this case is further
complicated by its procedural posture. The Court's task
here is two-fold: First, it must determine how and when to
address each issue in a procedurally correct fashion. Then,
it must evaluate the parties' substantive arguments. Each
step is detailed below.
Conversion to Summary Judgment Proceeding
the sufficiency of a complaint must rest on its contents
alone.” Gee v. Pacheco,627 F.3d 1178, 1186
(10th Cir. 2010). There are three limited exceptions to this
rule, allowing the Court to consider: “(1) documents
that the complaint incorporates by reference…; (2)
documents referred to in the complaint if the documents are
central to the plaintiff's claim and the parties do not
dispute the documents' authenticity …; and (3)
matters of which a court may take judicial notice.”
Id. (internal citations omitted). If a party
presents materials that do not fall within these exceptions,
the Court must either exclude the materials or convert the
matter to a summary judgment proceeding. See Fed. R.
Civ. P. 12(d); Geras v. ...