United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon the parties' Cross
Motions for Partial Summary Judgment (Cross Motions), filed
on May 30, 2017, and August 31, 2017. (Docs. 220, 270). Each
party filed responses and replies, and the matters are now
fully briefed. (Docs. 271, 318, 319, and 345). The Cross
Motions address whether EEOC satisfied its prerequisites to
suit. Having considered the relevant law, briefs, and
uncontested evidence, the Court will grant partial summary
judgment in favor of EEOC.
Background and Uncontested Facts
an Equal Employment Opportunity Commission (EEOC) enforcement
action. It arises from the New Mexico Department of
Corrections' (NMDC) alleged failure to promote
correctional officers over the age of 40. The pre-litigation
proceedings began on August 25, 2010, when Richard Henderson
filed an EEOC Charge of Discrimination (Charge) against NMDC.
(Doc. 144-1) at 1-2. Henderson alleged Warden Anthony Romero
overlooked him for a promotion in favor of a 31-year-old
candidate based on “longevity.” Id.
(Doc. 270) at 5; (Doc. 319) at 2. At the time, Romero was the
Warden of Central New Mexico Correctional Facility (CNMCF).
Id. Between 2010 and 2013, Robert Tenorio and Paul
Martinez also filed age discrimination Charges against NMDC.
The EEOC Investigation
of its investigation, EEOC requested:
• Position statements and personnel files relating to
Henderson and Tenorio; (Doc. 220-2) at 2; (Doc. 144-5) at 4.
• Information regarding correctional officers who sought
promotions to the rank of Lieutenant or above at CNMCF; (Doc.
270) at 6; (Doc. 270-2) at 13.
• A list of all past and current CNMCF employees and
supervisors, including the date of hire, current position,
and (for former employees) the reason for leaving; (Doc.
270-2) at 23, 26.
• A list of all formal and informal discrimination
complaints made by all NMDC employees. (Doc. 270-2) at
also visited CNMCF on May 11, 2011, and May 8, 2012. (Doc.
220-2) at 2; (Doc. 270-2) at 24, 29. Investigator Jeff
Stuhlmann interviewed at least 25 employees about the alleged
discrimination and retaliation. (Doc. 220-2) at 2.
2011, Romero was appointed Deputy Warden of Penitentiary of
New Mexico (PNM). (Doc. 270) at 4; (Doc. 319) at 2. Romero
subsequently was promoted to the Deputy Division
Director of NMDC's Adult Prisons Division at the Central
Office in Santa Fe. (Doc. 270) at 4; (Doc. 319) at 2; (Doc.
220-2) at 2. As Director, Romero oversaw wardens at all NMDC
facilities. (Doc. 220-2) at 3. By a letter dated May 24,
2012, EEOC informed NMDC that it was expanding its
investigation to encompass potential age discrimination
“against a class of individuals” in “the
entire State of New Mexico” (Expansion Letter). (Doc.
270-2) at 40.
EEOC requested a “complete and accurate employee list
… of all [NMDC] employees since January 1, 2010,
” including the employees' name, contact
information, date of hire, position, supervisor, and, if
applicable, reason for leaving. (Doc. 220-2) at 2; (Doc.
144-5) at 13. On August 1, 2013, EEOC contacted each
individual “to find out whether [they] …
experienced or witnessed any potential age discrimination
while … employed by” NMDC (hereinafter,
Solicitation Letter). (Doc. 270-2) at 44. The letter
encouraged employees to contact EEOC's investigator if
they would like to discuss their work experiences at NMDC.
Id. Following the investigation, EEOC concluded that
age discrimination occurred in at least five NMDC facilities,
including CNMCF and PNM. (Doc. 220-2) at 3.
Determination Letters and Conciliation Efforts
September 13, 2013, EEOC issued reasonable cause
determination letters (RCDs) to NMDC regarding the Henderson
and Tenorio Charges. (Doc. 270-2) at 46-49. EEOC
“determined that there is reasonable cause to believe
that [NMDC] violated the ADEA by discriminating against the
Charging Part[ies] and other aggrieved individuals” by:
 refusing to hire and/or promote individuals because of
their age … [;]
 discriminating … with respect to their terms,
conditions, or privileges of employment, including …
creating and/or fostering a hostile work environment,
subjecting individuals to discipline because of their age,
terminating older individuals' employment, and/or by
forcing older individuals to resign and/or retire[;] [and]
 discriminating … for opposing employment practices
made unlawful by the ADEA, including … subjecting the
individuals to discipline, refusing to hire and/or promote
the individuals, subjecting the individuals to less favorable
working conditions, and creating and/or fostering a hostile
work environment for individuals who opposed unlawful
(Doc. 270-2) at 46-49. The RCDs included an invitation to
participate in informal conciliation discussions. (Doc.
270-2) at 47, 49.
sent NMDC an initial conciliation proposal on April 16, 2014.
(Doc. 270-2) at 50. EEOC requested certain policy changes and
There are a total of 16 class members currently identified
(including … Henderson and … Tenorio) and the
following damages are for all identified class ...