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Barrios v. Albuquerque Bernalillo County Water Utility Authority

United States District Court, D. New Mexico

May 7, 2018



          Kirtan Khalsa, United States Magistrate Judge

         THIS MATTER is before the Court on the Motion for Summary Judgment filed on September 14, 2017, by Defendant Albuquerque Bernalillo County Water Utility Authority. (Doc. 30.) In its Motion, Defendant seeks summary judgment as to Count I (insofar as it pertains to discrete acts of alleged age discrimination), Count II, and Count III of Plaintiff Joseph Barrios' Complaint for Age Discrimination Pursuant to the Civil Rights Act of 1964, as amended, the New Mexico Human Rights Act, Breach of Contract, and Retaliation. (Doc. 1-1.) Plaintiff filed a Response to Defendant's Motion on October 19, 2017. (Doc. 38.) Defendant filed a Reply on November 9, 2017. (Doc. 45.) The Court, having considered the parties' submissions, the relevant law, and the record concludes that Defendant's Motion is well taken, and shall be granted as to the relief requested therein. Additionally, the Court is inclined to grant summary judgment in Defendant's favor in regard to Plaintiff's age-related hostile work environment claim as to which Defendant did not move for summary judgment; however, the Court shall first permit both parties to submit supplemental briefing on this issue.

         I. Procedural and Factual Background

         Before setting forth the undisputed material facts that bear on the issues in this case, the Court addresses Plaintiff's failure to submit a Response to Defendant's Motion that conforms with the Local Rules of Civil Procedure. In this district, summary judgment is governed, procedurally, by Local Rule 56 which provides, in part, that a response to a motion for summary judgment must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered,

must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the [motion for summary judgment] will be deemed undisputed unless specifically controverted. The Response may set forth additional facts other than those which respond to the [motion for summary judgment] which the non-movant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the non-movant relies.

D.N.M. LR-Civ. 56(b). Far from being a mere technicality, Plaintiff's failure to abide by this Rule substantively affects the efficacy of his Response.

         Rather than enumerating the facts as to which there is a dispute and providing a citation to particular facts in the record demonstrating the existence of a genuine dispute, Plaintiff attached his affidavit as an exhibit to the Response. (Doc. 38-1.) Plaintiff “organized [the] affidavit by first reciting [every] allegation of fact made by the Defendants, followed by whether [he] dispute[s] that allegation, and if [he does] a statement of the facts that [he relies] on in disputing it.” (Doc. 38-1 at 1.) The result of Plaintiff's endeavor to do what should have been done on his behalf by his counsel is that the vast majority of the facts that Plaintiff contends are “disputed” or “partially disputed” are not specifically controverted.[1]

         With few exceptions (which are specifically mentioned in this Opinion where it is contextually appropriate), Plaintiff's designation of a fact set forth in Defendant's Motion as “disputed” or “partially disputed” is variously accompanied by (1) an assertion unrelated to the at-issue statement of fact, (2) a brief exposition of Plaintiff's beliefs and feelings about, or ancillary to, the at-issue statement of fact, and (3) citations to the record that are unrelated to the assertions that they are intended to support. Since a genuine dispute of material fact is not created merely by labeling a fact “disputed” or “partially disputed, ” except where they are actually controverted by evidence in the record, the Court relies on Defendant's undisputed material facts regardless of these designations.

         The following basic facts are undisputed.[2] Plaintiff is employed by Defendant, the Albuquerque Bernalillo County Water Utility Authority. (Doc. 38-1 at ¶ 1.) His date of birth is September 8, 1960. (Doc. 38-1 at ¶ 2.) Plaintiff applied and was not selected for job promotions in the years 2010, 2012, 2013, 2014, 2015, and 2016. (Doc. 38-1 ¶¶ 3, 9, 18, 22, 30, 40.) In September 2015, and again in August 2016, Plaintiff filed a “charge of discrimination” with the EEOC, claiming age discrimination and retaliation. (Doc. 30-2; Doc. 30-3.) The EEOC investigated the 2015 charge and determined that Defendant's reasons for not promoting Plaintiff (i.e., his “lack of qualifications and his behavior”) were legitimate and non-discriminatory. (Doc. 30-8 at 3.) The EEOC issued a “notice of right to sue” to Plaintiff in regard to that charge. (Doc. 38-6.) The parties did not attach documents pertaining to the result of the 2016 EEOC charge to their respective summary judgment briefs.

         In November 2016, Plaintiff filed, in the Second Judicial District, County of Bernalillo, State of New Mexico, a Complaint for Age Discrimination Pursuant to the Civil Rights Act of 1964, as amended, The New Mexico Human Rights Act, Breach of Contract and Retaliation. (Doc. 1-1.) In January, 2017, Defendant removed the case to this Court on the basis of federal question jurisdiction. (Doc. 1-2.) In February, 2017, the parties consented to proceed before the undersigned. (Doc. 7.)

         Plaintiff's Complaint is comprised of three counts. In Count I, Plaintiff claims that he was subjected to “systematic[] and persistent[]” age discrimination, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.[3] (Doc. 1-1 at ¶ 25). The Court construes Count I as raising an age discrimination claim related to several “discrete acts” as well as an age-related hostile work environment claim. In Count II, “violation of contract, ” Plaintiff claims that Defendant held him in “substandard jobs” and that he has been “marginalized in his work” in violation of his employment contract. (Doc. 1-1 at ¶ 28.) In Count III, Plaintiff states a claim of “retaliation, ” contrary the New Mexico Human Rights Act (NMHRA), NMSA 1978, Section 28-1-1 et seq. (Doc. 1-1 at ¶ 29.) Defendant argues that it is entitled to judgment as a matter of law as to each of these claims; however, insofar as Defendant has not directly addressed Plaintiff's age-related hostile work environment claim, Defendant and Plaintiff shall be afforded an opportunity to address the viability of this claim before the Court determines whether to grant summary judgment related thereto. (Doc. 30.)

         II. Analysis

         A. Summary Judgment Standard

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999); see Fed. R. Civ. P. 56(a). “A disputed fact is ‘material' if it might affect the outcome of the suit under the governing law, and the dispute is ‘genuine' if evidence is such that a reasonable jury could return a verdict for the nonmoving party.” MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005).

         The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact and its according entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the movant carries this initial burden, the burden shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence” that demonstrate a genuine dispute as to material facts. Id. at 671; see MacKenzie, 414 at 1273 (“Unsupported conclusory allegations . . . do not create an issue of fact.”); Santana v. City & Cty. of Denver, 488 F.3d 860, 866 (10th Cir. 2007) (“[A]n employee's opinion about his or her qualifications does not give rise to a material factual dispute.”). If the nonmovant succeeds in demonstrating a “genuine dispute” as to material facts, the Court views the facts in the light most favorable to him. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). However, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         B. Plaintiff's Age Discrimination Claim

         1. Overview of the Governing Law

         The ADEA prohibits an employer from discharging or demoting an employee, or discriminating against an employee in matters of compensation, terms, conditions or privileges of employment, because of the employee's age. 29 U.S.C. § 623(a); NMSA 1978, § 28-1-7(A). The prohibitions in the ADEA are “limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a).

         Prior to filing an ADEA claim, a plaintiff is required to exhaust his administrative remedies by filing an EEOC charge within 300 days of the employer's allegedly discriminatory action. 42 U.S.C. § 2000e-5(e)(1); Benton v. Town of S. Fork & Police Dep't, 553 Fed.Appx. 772, 779 (10th Cir. 2014). “[T]he exhaustion of administrative remedies is a jurisdictional prerequisite to bringing suit under . . . the ADEA.” Logsdon v. Turbines, Inc., 399 Fed.Appx. 376, 378 (10th Cir. 2010). Each discrete incident of discrimination (including each ...

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