United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
BRACK, UNITED STATES DISTRICT JUDGE.
the Corporate Defendants terminated Megan Valenzuela's
employment in July 2016, she filed an Equal Employment
Opportunity Commission (EEOC) Intake Questionnaire, and later
an EEOC Charge of Discrimination form, alleging
discrimination and retaliation. Ms. Valenzuela, who resides
in New Mexico, attached additional pages to her EEOC Intake
Questionnaire, explaining the allegations in detail and
naming seven employees-none of whom are New Mexico
residents-who allegedly violated her rights in some way.
Absent from any document Ms. Valenzuela submitted is any
allegation of wrongdoing against Mark Nance, President of
BloomNet, Inc. (BloomNet).
Valenzuela eventually filed a lawsuit in state court.
Curiously, Ms. Valenzuela named the Corporate Defendants, but
she did not name any of the other employees she had made
allegations against in the explanatory pages she submitted
with the EEOC. Even more surprisingly, Ms. Valenzuela named
one new individual defendant-Mr. Nance, who also happens to
be a New Mexico resident. BloomNet removed the case to this
Court, alleging that Ms. Valenzuela failed to exhaust her
administrative remedies against Mr. Nance and fraudulently
joined him in order to keep her lawsuit in state court.
Valenzuela moves to remand, arguing that the New Mexico
Supreme Court's decision in Lobato v. New Mexico
Environment Department, 267 P.3d 65 (N.M. 2011), leaves
the door open to her claims against Mr. Nance despite her
failure to name him earlier. Defendants disagree and make
several strong arguments to demonstrate that this case falls
outside of Lobato's “limited
circumstances.” However, the burden on Defendants to
show that there is no possibility Ms. Valenzuela
could maintain any of her claims against Mr. Nance is simply
too high a hurdle. Because reaching a conclusion on the issue
of exhaustion would require an intricate analysis of state
law, the Court must GRANT Ms.
Valenzuela's motion and REMAND this
matter to the Third Judicial District Court, Doña Ana
County, State of New Mexico.
Factual and Procedural Background
Valenzuela began working for the Corporate Defendants in
2006. (Doc. 1-B (“Compl.”) ¶ 11.) She
suffered from several medical conditions (major depression,
anxiety, and insomnia), and in June 2015, she asked the
Corporate Defendants to accommodate her conditions by
allowing her to take intermittent leave under the Family and
Medical Leave Act (FMLA). (Doc. 16-C at 1; see also
Compl. ¶¶ 13-17.) The Corporate Defendants agreed
and also allowed her to report late to work. (Compl.
of the Corporate Defendants discriminated against Ms.
Valenzuela because of her medical conditions, subjected her
to a hostile work environment, denied her reasonable
accommodations, and eventually terminated her employment in
retaliation for her reports to Human Resources regarding the
discriminatory treatment. (See Doc. 16-C; Compl.
¶¶ 20-30.) Ms. Valenzuela was terminated on July
19, 2016. (Doc. 16-B at 2.) She submitted an Intake
Questionnaire to the EEOC on July 27, 2016. (Id. at
appears that Ms. Valenzuela hand-wrote her answers on the
Intake Questionnaire. (See Doc. 16-B.) On the first
page, Ms. Valenzuela named BloomNet and 1-800-Flowers.com in
the space marked “Organization Name, ” and Jim
McCann, CEO, and Maurine Paradine, HR, in the space marked
“Human Resources Director or Owner Name.”
(Id.) She also attached six typed pages entitled
“EEOC Complaint” to the Intake Questionnaire.
(See Doc. 16-C.) In these pages, she described in
detail specific acts of discrimination and retaliation by
seven individual employees of the Corporate Defendants: (1)
Jim McCann, CEO of 1-800 Flowers.com, (2) Maureen Paradine,
Director of Human Resources for 1-800 Flowers.com, (3) Marc
Greszkowiack, VP of Technology for BloomNet, (4) Ted Nelson,
Superior of Marc Greszkowiack, BloomNet, (5) Amira Jensen,
Senior Manager of Technology for BloomNet, (6) Jerry Leonard,
VP of Human Resources for 1-800 Flowers.com, and (7) Cristal
Feliciano, Benefits Director for 1-800 Flowers.com.
(Id.) Defendants contend, and Ms. Valenzuela does
not deny, that not one of these employees is a citizen of New
Mexico. (See Doc. 16 at 7; Doc. 18.)
Investigator from the El Paso Area EEOC Office prepared a
Charge of Discrimination form, which Ms. Valenzuela reviewed
and signed on August 11, 2016. (See Doc. 12-1 at 1,
5-7.) 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. (If more than two, list under
PARTICULARS below.)” (Id. at 5.) Ms.
Valenzuela named BloomNet but did not include
1-800-Flowers.com or Mr. Nance in the Particulars section.
(Id.) On the second page of the form, the
Investigator summarized Ms. Valenzuela's claim as
PERSONAL HARM: I began my employment with Bloomnet Inc. on
July 12, 2006 in customer service and sales. On or about June
2015, I began experiencing severe medical issues and decided
to request FMLA per my disability. On December 2015, HR
advised me that advanced notices were required whenever I was
going to be absent from work. Around the same time the VP of
Technology Marc Greszkowlack disclosed on an open floor which
many non-management employees heard, that I was taking Xanax
and was on FMLA because of depression and anxiety. He also
stated I didn't take care of my kids and that things were
going to get worse for me. I filed a complaint to Maureen
Paradine the Director of HR for retaliation regarding my
medical condition and breach of medical confidentiality to no
avail. On January 31, 2016, I was retaliated and harassed by
being called in repeatedly to HR. I was disciplined several
times and discharged by Marc Greszkowlack on 07/19/2016.
Prior to my discharge I had informed them that I would be
opening an FMLA per my disability once again and in the
process of submitting further medical documentation, I was
discriminated and retaliated against with the discharge on
07/19/16. I have been discriminated against due to my
disability and medical leave request.
(Id. at 6.)
Valenzuela submitted an affidavit and stated that she gave
the EEOC Investigator “all of the factual basis for
[her] discrimination and retaliation claims, as well as all
of the entities and individuals that discriminated against
[her] and retaliated against [her], including Mark Nance,
personally.” (Id. at 1.) She never filed an
amended form. Ms. Valenzuela also stated that she “was
not represented by any attorney when [she] signed this Charge
of Discrimination.” (Id.) Ms. Valenzuela
“did not hire” her current attorneys, Mr. Brett
Duke and Ms. Daniela Labinoti, “until after [she]
signed the Charge of Discrimination.” (Id.)
Nance submitted an affidavit and stated that he “did
not participate in any disciplinary or accommodations issues
related to [Ms. Valenzuela], and did not make the decision to
terminate [her].” (Doc. 9-2 ¶ 8.)
Mexico Department of Workforce Solutions, Human Rights Bureau
issued an Order of Nondetermination. (See Compl.
¶ 9.) Ms. Valenzuela, making only state-law claims,
filed suit in the Third Judicial District Court on August 4,
2017. (Id. at 1.) Neither the amount in controversy
nor the citizenship of the parties is in dispute.
(See Doc. 1.) Ms. Valenzuela is a citizen of New
Mexico. (Compl. ¶ 1.) BloomNet, 1-800 Flowers.com, Inc.,
and 1-800 Team Services, Inc. are all Delaware corporations
with their principal places of business in New York. (Doc. 1
¶¶ 4-6.) 1-800 Flowers Service Support Center, Inc.
is a New York corporation with its principal place of
business in New York. (Id. ¶ 7.) Mr. Nance is a
citizen of New Mexico. (Compl. ¶ 7.) Ms. Valenzuela