United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
September 15, 2017, Defendant filed a Motion to Dismiss
Plaintiff's Amended Complaint (ECF No. 4). Defendant
moves to dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to plead sufficient facts to
state an age discrimination claim. Plaintiff opposes the
motion arguing that the allegations are sufficient to survive
dismissal, and alternatively, requests leave to amend her
complaint should the Court find she failed to state a claim.
The Court, having considered the motion, briefs, pleadings,
and applicable law, concludes that Plaintiff has failed to
state a plausible age discrimination claim under the NMHRA,
but that Plaintiff's request for leave to file an amended
complaint should be granted. The Court will therefore deny
Defendant's motion to dismiss at this time.
began working for Defendant as a Medical Scribe in November
2009. Pl.'s Am. Compl. ¶ 6, ECF No. 1-2. In March
2014, Plaintiff was assigned a new supervisor. Id.
¶ 8. The new supervisor almost immediately began
subjecting Plaintiff to a hostile work environment by
threatening her with insubordination, changing her work
schedule, and reducing her scheduled hours. Id.
¶¶ 9-10. In September 2014, Plaintiff's
supervisor began disciplining her for not working nights,
even though she had a five-year agreement to not work nights.
Id. ¶ 12. Plaintiff was written up again in
July 2015 for not working nights. Id. ¶ 13.
Plaintiff was given a final warning in September 2015 for not
working an unscheduled night shift. Id. ¶ 15.
Although Plaintiff complained about her supervisor, no action
was taken. Id. ¶¶ 11, 14.
December 2015, Plaintiff was notified that Defendant lost its
contract with the hospital. Id. ¶ 16. On
January 16, 2016, Plaintiff was notified she was being
terminated and she was not given any opportunity to transfer
to another location of Defendant. Id. ¶¶
17, 19. “Plaintiff is aware of younger Scribes being
transferred with Defendant.” Id. ¶ 18.
After timely filing an EEOC/NMHRB charge and receiving her
Notice of Right to Sue letter, id. ¶ 5,
Plaintiff filed suit for age discrimination under the New
Mexico Human Rights Act (“NMHRA”), id.
¶ 22, for “unjustly disciplining her, reducing her
work hours, and subjecting her to a hostile work environment,
” id. ¶ 23. At the time she filed her
lawsuit, Plaintiff was 49 years of age. Id. ¶
motion to dismiss, the court assesses the legal sufficiency
of the allegations contained within the four corners of the
complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281
(10th Cir. 2008). Rule 8 requires the complaint to contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). The court accepts as true all well-pleaded facts,
viewing them in the light most favorable to the nonmoving
party and allowing all reasonable inferences in favor of the
nonmoving party. Archuleta, 523 F.3d at 1283. The
court "should disregard all conclusory statements of law
and consider whether the remaining specific factual
allegations, if assumed to be true, plausibly suggest the
defendant is liable." Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). The
complaint "does not need detailed factual allegations,
" but “a formulaic recitation of the elements of a
cause of action will not do." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For discrimination
claims, a plaintiff need not set forth a prima facie case for
each element in her complaint, but examining the elements of
the cause of action helps a court determine whether the
plaintiff set forth a plausible claim. Khalik v. United
Air Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012).
NMHRA makes it unlawful for an employer “to discharge,
to promote or demote or to discriminate in matters of
compensation, terms, conditions or privileges of employment
against any person otherwise qualified because of …
age.” N.M. Stat. Ann. § 28-1-7(A). New Mexico
courts frequently look to federal law for guidance when
analyzing NMHRA claims. See, e.g., Ulibarri v. State of
New Mexico Corrections Academy, 2006-NMSC-009, ¶
11, 131 P.3d 43; Smith v. FDC Corp., 109 N.M. 514,
517, 787 P.2d 433, 436 (N.M. 1990) (following guidance of
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), when examining race and age discrimination claims
a prima facie case of age discrimination, Plaintiff must
prove (1) she is over 40 years old; (2) she suffered an
adverse employment action; and (3) the challenged action
occurred under circumstances giving rise to an inference of
discrimination. Bennett v. Windstream Communications,
Inc., 792 F.3d 1261, 1266 (10th Cir. 2015); Cates v.
Regents of New Mexico Institute of Min. &
Technology, 1998-NMSC-002, ¶¶ 17-19, 954 P.2d
65. See also MacKenzie v. City and County of Denver,
414 F.3d 1266, 1277 (10th Cir. 2005) (stating requirements
for prima facie case of disparate treatment are that (1)
plaintiff was member of protected class, (2) she was
disciplined, and (3) she was treated differently than
similarly situated employees for the same or similar
conduct). Adverse employment actions include acts that
constitute “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision
causing a significant change in benefits.” Dick v.
Phone Directories Co., Inc., 397 F.3d 1256, 1268 (10th
Cir. 2005) (quoting Sanchez v. Denver Pub. Schs.,
164 F.3d 527, 532 (10th Cir. 1998)). The Tenth Circuit
liberally interprets the adverse action prong, and courts
must examine the unique factors relevant to each case.
Id. A plaintiff may satisfy the inference of
discrimination factor by showing that the employer treated
similarly situated employees more favorably than the
plaintiff. Hysten v. Burlington Northern and Santa Fe Ry.
Co., 296 F.3d 1177, 1181 (10th Cir. 2002).
Discipline and reduced hours
argues that disciplining Plaintiff for failing to work the
night shift and reducing her hours do not amount to adverse
employment actions, because there are no allegations
suggesting the events led to a significant change in
employment status. Defendant also contends that Plaintiff
failed to plead facts to connect her discipline and reduction
in hours to her age.
Plaintiff alleges that younger employees were transferred,
while she was not, Plaintiff does not allege that there were
younger, similarly situated employees who did not suffer
disciplinary actions or reduced work hours, while she did.
Plaintiff has not shown sufficient non-conclusory facts to
indicate that the supervisor's imposition of discipline
was because of her age, rather than because of her failure to
work night shifts. Plaintiff has therefore failed to state a
plausible claim related to the theory that she suffered age
discrimination when Defendant “unjustly disciplin[ed]
her” and “reduc[ed] her work hours, ” Am.
Compl. ¶ 23, ECF No. 1-2. Cf. Khalik, 671 F.3d
at 1193-94 (concluding that plaintiff failed to state a
plausible claim where there were no allegations of similarly
situated employees who were treated differently and no facts
relating to alleged discrimination). The Court therefore need
not consider whether the write-ups and warnings constitute
adverse employment actions.
Termination and failure to transfer
additionally argues that Plaintiff has not sufficiently
alleged that her termination and Defendant's failure to
transfer her were because of age discrimination. Defendant
asserts that the only fact tying her termination and failure
to transfer to age discrimination is that Plaintiff was aware
that younger scribes were transferred by Defendant, while she
was not. Defendant contends that Plaintiff's complaint
contains no allegations regarding whether she was qualified
to transfer, applied to transfer, and was denied a transfer.
Accordingly, Defendant asserts that ...