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United States v. New Mexico State University

United States District Court, D. New Mexico

February 16, 2018



         The United States of America (Plaintiff or the United States) filed suit against Defendants New Mexico State University and New Mexico State University Board of Regents (collectively, Defendants or NMSU) to enforce the provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.[1] The United States alleges that Defendants engaged in pay discrimination against former NMSU employee Meaghan Harkins (Ms. Harkins) in violation of Title VII. Defendants filed a motion to dismiss this suit under the doctrine of laches.[2] The United States responded in opposition to the motion and filed a cross-motion for summary judgment, arguing that laches is inapplicable to this case.[3] Both motions have been fully briefed.[4] The Court will deny the Motion to dismiss, will grant summary judgment to Plaintiff, and will prohibit Defendants from further attempts to raise laches as an affirmative defense.

         I. BACKGROUND

         Plaintiff alleges that because of Ms. Harkins' gender, Defendants paid her less than they paid two male employees in similar positions. The factual background of this claim is set forth in the Court's Memorandum Opinion and Order denying summary judgment (Doc. No. 259), and the Court will not repeat it here. After she left Defendants' employment, Ms. Harkins notified the Albuquerque office of the EEOC that she wished to pursue a charge of gender-based discrimination against Defendants. Doc. No. 191, Ex. 2. On May 11, 2012, the EEOC transferred the charge to the El Paso Area EEOC office for investigation. Doc. No. 146, Ex. E; Doc. 191, Ex. 3. Defendants received notice of the charge on May 15, 2012. Doc. No. 191, Ex. 1; Doc. No. 214, Ex. 1.

         The EEOC requested specific documents and information from Defendants, but also informed Defendants that the requested items were not necessarily all that would be required to resolve the charge. Doc. No. 214, Ex. 2. The EEOC instructed Defendants to retain all personnel records that were relevant to the charge until final disposition of the matter, which it defined as the termination of litigation or the expiration of the period in which suit could be filed. Doc. No. 236, Ex. 3. On August 2, 2013, the EEOC issued a Letter of Determination informing Defendants that it had found reasonable cause to believe that Defendants had discriminated against Ms. Harkins due to her gender. Doc. No. 146, Ex. F. Efforts by the EEOC to negotiate a settlement with Defendants were unsuccessful. Doc. No. 146, Ex. G. On May 13, 2014, the EEOC notified Defendants that the charge was being sent to the Department of Justice (DOJ) for possible litigation. Id.

         DOJ notified Defendants on January 7, 2015, that it was beginning investigation of the charge. Doc. No. 191, Ex. 6. It conducted interviews and requested information and documentation, noting Defendants' obligation to retain all relevant documents even if DOJ had not requested that they be produced. See Doc. No. 191, Ex. 7-Ex. 11. On March 31, 2016, DOJ informed Defendants of its determination that NMSU had discriminated against Ms. Harkins in violation of Title VII. Doc. No. 191, Ex. 13. DOJ stated that it would file suit against Defendants by May 3, 2016 unless Defendants chose to enter into a consent decree that DOJ found acceptable. Id. This deadline was postponed while the parties engaged in settlement discussions, but the negotiations were unsuccessful and DOJ filed its Complaint (Doc. No. 1) on August 11, 2016. Doc. No. 191, Ex. 30. Defendants contend that Plaintiff's claim is barred by the doctrine of laches.


         Defendants filed their Motion under Federal Rule of Civil Procedure 12(b)(6) even though they had previously answered the Complaint.[5] The Court might have considered the motion as one for judgment on the pleadings under Rule 12(c), but Defendants also attached 74 pages of exhibits to their motion, including deposition testimony, an employment contract, and documents related to the Equal Employment Opportunity Commission (EEOC) investigation into Ms. Harkins' charge of discrimination. “When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.'” Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). Defendants ask the Court to convert their motion to dismiss to one for summary judgment. Because Plaintiff acknowledges that it has received notice of the conversion, the Court will consider the motion and supporting materials under Rule 56. Plaintiff has presented materials outside the pleadings in support of its response to Defendants' motion and in support of its own cross-motion for summary judgment. See Fed. R. Civ. P. 12(d) (“All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”).

         Summary judgment is appropriate “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). When both parties have moved for summary judgment the Court will analyze each motion individually and on its own merits. See Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (explaining that “[c]ross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.”). The Court “‘view[s] all evidence and any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party.'” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quoting Croy v. Cobe Labs. Inc., 345 F.3d 1199, 1201 (10th Cir. 2003).

         Cross-motions for summary judgment entitle the Court “to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quoting James Barlow Family Ltd. P'ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)). “A fact is material only if it might affect the outcome of the suit under the governing law. And a dispute over a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1265-66 (10th Cir. 2015). “Where the facts are not in dispute . . ., summary disposition is appropriate.” Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007).


         Defendants make two claims in their Motion: first, that Ms. Harkins did not file suit within the requisite time after EEOC issued its notice that conciliation had failed; and second, that laches bars the United States from bringing this claim on Ms. Harkins' behalf. Defendants do not expand on their first claim, and it has no merit. Ms. Harkins was never issued a Notice of Right to Sue so as to trigger a statutory time limit because DOJ chose to litigate this matter. See 42 U.S.C. § 2000e-5(f)(1); EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1200 (10th Cir. 2003) (“one of the policies behind the required issuance of the right-to-sue letter is that it initiates the running of the statute of limitations for private actions” (internal quotation marks omitted)); EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (If the EEOC decides to sue, “the employee has no independent cause of action, although the employee may intervene in the EEOC's suit.”).

         As to their second claim, Defendants assert that the Court lacks jurisdiction over Plaintiff's suit because Defendants have been prejudiced by Plaintiff's delay in filing its Complaint. Laches is an equitable defense that may apply when a plaintiff's lack of diligence in pursuing a claim causes harm to a defendant. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). The existence of laches is not a jurisdictional matter, but depends upon the circumstances of the case and “‘is a question primarily addressed to the discretion of the trial court.'” Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1090 (10th Cir. 2014) (quoting Burnett v. New York Central R.R. Co., 380 U.S. 424, 435 (1965)). Plaintiff argues that: (1) Defendants waived their right to raise the affirmative defense of laches because they failed to assert it in their Answer; (2) laches is not available against the United States in a Title VII action; and (3) Defendants cannot establish the required elements of unreasonable delay or resulting prejudice.

         A. Waiver of the Defense

         “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . laches[.]” Fed.R.Civ.P. 8(c). The purpose of this requirement is to give the opposing party notice of the defense and an opportunity to respond. Ahmad v. Furlong, 435 F.3d 1196, 1201 (10th Cir. 2006). Whether an affirmative defense may first be raised in a motion for summary judgment is determined by the same standards that govern motions to amend an answer. Id. at 1202. In addition to prejudice to the opposing party, “a motion to amend may also be denied on grounds such as ‘undue delay, bad faith or dilatory motive ..., or repeated failure to cure deficiencies by amendments previously allowed.'” Id. (quoting Harris v. Secretary, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 344-45 (D.C. Cir. 1997)). Plaintiff argues that Defendants should be precluded from raising laches in their motion because they did not seek leave to amend their Answer nor did they address the standards for constructive amendment. However, Plaintiff had notice of the defense through Defendants' Motion, and Plaintiff had the opportunity to argue against the imposition of laches in its Response and in its Cross-Motion. Plaintiff asserts that it is prejudiced by Defendants' late assertion because fact discovery has closed, but Plaintiff has ...

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