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Kennicott v. Sandia Corp.

United States District Court, D. New Mexico

May 14, 2018

LISA A. KENNICOTT; LISA A. GARCIA and SUE C. PHELPS, on behalf of themselves and a class of those similarly situated, Plaintiffs,
v.
SANDIA CORPORATION, Defendant.

          Anne Brackett Shaver Michael Ian Levin-Gesundheit Shira J. Tevah Kelly Maureen Dermody Lin Yee Chan Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP San Francisco, California, Adam T. Klein Cheryl-Lyn Bentley Elizabeth Stork Outten & Golden LLP New York, New York Attorneys for the Plaintiffs

          Grace E. Speights Krissy A. Katzenstein Michael S. Burkhardt Morgan, Lewis & Bockius LLP Washington, D.C. Scott D. Gordon Jeffrey L. Lowry Paola Viviana Jaime Stephanie Latimer Theresa W. Parrish Rodey, Dickason, Sloan, Akin & Robb, P.A Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION [1]

         THIS MATTER comes before the Court on the Defendant's Motion to Dismiss State Law Claims, filed March 17, 2017 (Doc. 14)(“Motion”). The Court held hearings on June 12, 2017 and January 19, 2018. The primary issues are: (i) whether the federal enclave doctrine applies to state-law employment discrimination claims if the employer makes allegedly discriminatory decisions off the enclave; (ii) whether the federal enclave doctrine bars Plaintiffs Lisa A. Kennicott's, Lisa A. Garcia's, and Sue Phelps' claims against Defendant Sandia Corporation (“Sandia Labs”) under the New Mexico Human Rights Act, N.M. Stat. Ann § 28-1-7(A) (“NMHRA”), and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann. § 28-23-3(A) (“NMFPWA”); and (iii) whether Sandia Labs made the employment decisions underlying those claims on the Kirtland Air Force Base. The Court concludes that: (i) the federal enclave doctrine applies to state employment discrimination claims when a plaintiff works on a federal enclave, no matter where the employer makes the decisions underlying those claims; (ii) the federal enclave doctrine bars the Plaintiffs' NMHRA and NMFPWA claims, because the Plaintiffs worked on the Kirtland Air Force Base, and those state statutes do not apply in that federal enclave[2]; and (iii) Sandia Labs has not established that it made the employment decisions underlying the Plaintiffs' claims on Kirtland Air Force Base, so if the Court were to decide -- which it does not -- that the federal enclave doctrine applies only when the challenged employment decisions are made on an enclave, then the Plaintiffs' NMHRA and NMFPWA would survive the Motion. Accordingly, the Court grants the Motion and dismisses the Plaintiffs' NMHRA and NMFPWA claims with prejudice.[3]

         FACTUAL BACKGROUND

         In the Motion, Sandia Labs moves the Court to dismiss the Plaintiffs' NMHRA and NMFPWA claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding rule 12(b)(6) motions, the Court generally may not consider “matters outside the pleadings.” Fed.R.Civ.P. 12(d). The parties have also done some discovery, however, and the parties have consented to the Court converting the Motion into one for summary judgment under rule 56 of the Federal Rules of Civil Procedure. Thus, the Court will give two factual sections. First, it will explain what the Complaint alleges as relevant background of the case. Second, it will set out the undisputed facts to help it determine whether there is a genuine dispute as to a material fact.

         1. The Complaint's Facts.

         Sandia Labs is a “federally-funded research and development contractor operating under contract for the Department of Energy.” Class Action Complaint ¶ 2, at 1-2, filed February 7, 2017 (Doc. 1)(“Complaint”). Kennicott worked for Sandia Labs as a member of Technical Staff from January, 1995, to February, 1998. See Complaint ¶ 50, at 11. She returned to Sandia Labs in 1999 as a Senior Member of Technical Staff, and, in 2005, was promoted to Principal Member of Technical Staff. See Complaint ¶ 50, at 11. She has a master's degree in computer science from the University of New Mexico and a master's degree from Harvard University. See Complaint ¶ 51, at 11.

         Garcia started working at Sandia Labs in 1988 as a custodian, and advanced through the mailroom, the payment processing department, and the Radiation Protection department's administrative section. See Complaint ¶ 64, at 14. Eventually, she worked as a Health Physics Technologist in Dosimetry[4] within Radiation Protection, was promoted to Senior Health Physics Technologist in Dosimetry, made a “lateral move” to Electromechanical Senior Technologist in Secure Transportation, and then made another lateral move to Electronics Senior Technologist in Satellites. Complaint ¶ 64, at 14. In 2008, she was promoted to Principal Technologist in Satellites, and, a year later, made a lateral move to Principal Technologist in Telemetry, [5] where she still works. See Complaint ¶ 64, at 14. Garcia has a bachelor's degree in business from the College of Santa Fe and a Certificate in Electronics from what was then known as the Technical Vocation Institute of New Mexico.[6] See Complaint ¶ 65, at 15.

         Phelps began working at Sandia Labs in May, 1989, as a member of Technical Staff, Scientific Computing, and, in 1997, was promoted to Senior Member of Technical Staff, Scientific Computing. See Complaint ¶ 71, at 16. Since then, she has made several lateral movies, first to Senior Member of Technical Staff, High Performance Computing Research, then to “Senior Member of Technical Staff within the division of Defense Systems and department of Missile Defense, ” and then to “Senior Member of Technical Staff within the division of Defense Systems and department of Phenomenology & Sensor Sciences.” Complaint ¶ 71, at 16. In 2013, she was promoted to Principal Member of Technical Staff in the Division of Defense Systems and Department of Phenomenology & Sensor Sciences, before retiring in 2016. See Complaint ¶ 71, at 16. Phelps has a B.S. in Mathematics from Purdue University, a master's degree in computer science from the University of Illinois, Champaign-Urbana, and a Ph.D. in computer science from the New Mexico Institute of Mining and Technology. See Complaint ¶ 72, at 16.

         2. The Undisputed Facts.

         Rule 12(d) of the Federal Rules of Civil Procedure states that, if a court considers matters outside the pleadings on a rule 12(b)(6) motion to dismiss, it must convert the motion to one for summary judgment under rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. Rule 12(d). In this Memorandum Opinion, the Court will consider matters outside the pleadings when determining whether Sandia Labs made its employment decisions on Kirtland Air Force Base, so it will convert the Motion into a rule 56 motion for summary judgment regarding that issue.[7] Accordingly, the Court presents these undisputed of facts based on the parties' additional pleadings and evidence.[8]

         Sandia Labs' Talent Acquisition group -- also called Talent Acquisition & Strategies -- “partner[s] with the compensation department as well as the hiring manager to set an appropriate salary based on experience and market.”[9] Deposition of Yvonne Baros at 216:8-12, (taken October 5, 2017)(Baros), filed October 24, 2017 (Doc. 61-2)(“Baros Depo.”).[10]Talent Acquisition is located off the Kirtland Air Force Base. See Supp. Submission at 3-4; Human Resources Organization Chart at 10, filed October 24, 2017 (Doc. 61-1)(“HR Chart”) (stating that Talent Acquisition is located at “IPOC”).[11] From February, 2012, to February 2013, Sandia Labs' Talent Management & Employee Engagement organization was located in Tech Area 1 on the Kirtland Air Force Base. See HR Chart at 1-5. From March, 2013, to June, 2014, the Talent Management & Employee Engagement organization was located off the Kirtland Air Force Base, at the Innovation Parkway Office Center (“IPOC”). HR Chart at 5-10. From July, 2014, to the present, the Talent Management & Employee Engagement organization was again located in Tech Area 1. See HR Chart at 10-12.

         Talent Management & Employee Engagement trains Sandia Labs' employees on policies regarding antidiscrimination and investigating discrimination complaints. See Supp. Submission at 7.; Baros Depo. at 207:5-21, 208:7-11 (Levin-Gesundheit, Baros). From 2014 to 2015, a “subdivision of HR known simply as Human Resources” (“Human Resources Group”) was located off the Kirtland Air Force Base. Supp. Submission at 3-4; HR Chart at 8-12 (indicating that the Human Resources Group was located at IPOC). Talent Management & Development and Talent Acquisition report to the Human Resources Group. See Division 3000 HR & Communications Organization Chart at 1, filed October 24, 2017 (Doc. 61-3)(“HR. Org. Chart”); Baros Depo. at 199:8-11 (Levin-Gesundheit, Baros)(establishing that the HR Org. Chart's “vertical lines . . . indicate reporting relationships”).

         HR & Communications is located on the Kirtland Air Force Base. See HR Chart at 1-20 (indicating that, for each month between January, 2012, to April, 2017, HR & Communications is listed as being on the Kirtland Air Force Base). In May, 2017, HR & Communications Vice President's location is not listed on the HR Chart. See HR Chart at 21.[12] In June, 2017, a HR & Communications Director was located at the IPOC. See HR Chart at 21.[13] HR & Communications is listed two other times for that month, and both of those entries indicate that they were on the Kirtland Air Force Base. See HR Chart at 21. The Vice President of HR & Communications is tasked with final approval of “compensation policy, ” Baros Depo. at 104:23-105:1 (Baros), and “antidiscrimination policies, ” Baros Depo. at 107:20-23 (Baros), and is responsible “for the promotion, compensation, performance evaluations, antidiscrimination polices, including investigation of employee complaints, ” Baros Depo. at 108:2-11 (Baros).

         The Compensation Group is located on Kirtland Air Force Base. See Supp. Response at 2; HR Chart at 1-20. The Compensation Group “conducts gender-based disparate impact analysis of performance evaluation scores.” Supp. Submission at 6; Baros Depo. at 85:14-86:7 (Levin-Gesundheit, Baros). The Compensation Group “administer[s]” Sandia Labs' performance evaluation process. Bars Depo. at 53:11-3 (Baros)(“The function of the compensation department was to . . . administer compensation job evaluation for the labs”); id. at 53:4-9 (Baros)(agreeing that the Compensation Group “has a role in administering the performance evaluation system”). “Administering” a policy includes “draft[ing]” and/or “crafting” the policy. Baros Depo. at 220:16-25 (Levin-Gesundheit, Baros)(stating that those who administrate policies “are the drafters of the policy, ” and that they are “the ones that are responsible for crafting the policy and overseeing [it] when there [are] questions”).[14]

         The Vice President of HR worked on Tech Area 1 at Kirtland Air Force Base during all relevant time periods. See Supp. Response at 5; HR Chart at 1-20 (indicating that the HR & Communications' “Vice Pres” worked at “Tech Area 1, ” which is on the Kirtland Air Force Base).[15] The Vice President of HR has “final approval over compensation, performance evaluation, and promoting policies.” Supp. Response at 6. Baros Dep. at 104:23-105:1 (Baros) (stating that HR & Communications' Vice President has final approval of Sandia Labs' compensation policy); id. 105:2-10 (Levin-Gesundheit, Baros)(establishing that HR & Communications' Vice President is responsible for Sandia Labs' performance evaluation policy); id. at 105:25-106:2-3 (Levin-Gesundheit, Baros)(establishing that HR & Communications' Vice President has final approval of Sandia Labs' promotions policy).

         From January, 2012, to August, 2015, the Sandia Labs' Equal Employment Opportunity/Affirmative Action (“EEO/AA”) organization was located in Tech Area 1. See HR Chart from 1-14. From September, 2015, to the present, the EEO/AA has been located off-base. See Supp. Submission at 8; HR Chart at 14-22.[16] The EEO/AA addresses employee discrimination complaints and is responsible for “complying with the antidiscrimination regulations of the Office of Federal Contract Compliance Programs, including auditing for systemic discrimination.” Supp. Submission at 8. See Baros Depo. at 55:21-56:1; id. at 57:3-7; id. at 219:21-24. The EEO/AA organization reports to Sandia Labs' Diversity & Inclusion organization. See Supp. Submission at 8; Baros Depo. at 134:14-16. The Diversity & Inclusion organization is responsible for diversity training across Sandia. See Supp. Submission at 8; Baros Depo. at 67:2-4. From January, 2012, to April, 2015, the Diversity, Inclusion & EEO/AA organization was located on Kirtland Air Force Base. See HR Chart at 1-13. From May, 2015, to August, 2015, Diversity and Inclusion was located on Kirtland Air Force Base. See HR Chart at 13-14. From September, 2015, to October, 2016, Diversity and Inclusion was located off the Kirtland Air Force Base. See HR Chart at 14-19. From November, 2016, to present, Diversity and Inclusion returned to Kirtland Air Force Base. See HR Chart at 19-21.

         PROCEDURAL BACKGROUND

         In the Complaint, the Plaintiffs allege that Sandia Labs violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), the NMHRA, and the NMFPWA. Complaint ¶ 1, at 1. Specifically, they allege that Sandia Labs discriminates against female employees in performance evaluations, compensation, and promotions. See Complaint ¶ 23, at 5.

         1. The Motion to Dismiss.

         In its Motion, Sandia Labs contends that the federal enclave doctrine bars the Plaintiffs' state-law claims. See Motion at 2. According to Sandia Labs, Congress has “exclusive authority” over federal enclaves, including Kirtland Air Force Base, where Sandia Labs is located. Motion at 3. Sandia Labs notes that neither the NMHRA nor the NMFPWA existed when Kirtland Air Force Base was established in 1954. See Motion at 3-4. Accordingly, Sandia Labs contends, the Court should dismiss the Plaintiffs' NMHRA and NMFPWA claims, because those statutes do not apply on the Kirtland Air Force Base. See Motion at 4-5.

         2. The Response.

         The Plaintiffs respond to the Motion. See Plaintiffs' Opposition to Motion to Dismiss State Law Claims and Motion to Conduct Jurisdictional Discovery, filed March 31, 2017 (Doc. 18)(“Response”). In the Response, the Plaintiffs assert that “Sandia is not a federal enclave for the classwide, common policies at issue.” Response at 1. The Plaintiffs contend that federal enclave's application depends on “the locus of relevant decisions-making, ” i.e., “where the employment policies are practices were made.” Response at 1. See id. at 5-6. The Plaintiffs argue that, “[a]t this early stage, Plaintiffs understand that at least some of the female employees covered by this lawsuit worked outside of federal land, and that Sandia substantially conducted its common human resources functions off-base.” Response at 2. See id. at 6-7. The Plaintiffs move for jurisdictional discovery. See Response at 4-5; id. at 7-8.

         3. The Reply.

         Sandia Labs filed a reply. See Reply in Support of Defendant's Motion to Dismiss State Law Claims, filed April 14, 2017 (Doc. 20)(“Reply”). Sandia Labs argues that the Plaintiffs' Response allegations -- that Sandia Labs set its discriminatory policies off of Kirtland Air Force Base -- is inconsistent with the Complaint's contention that relevant actions occurred at Sandia Labs. See Reply at 3-4. Sandia Labs contends that the Court cannot soundly consider these new alleged facts in a rule 12(b)(6) motion to dismiss. See Reply at 4-5 (“At this stage . . . the only question is whether Plaintiffs' state law claims are barred by the federal enclave doctrine based on the allegations in the one and only complaint that has been filed in this lawsuit.”).

         4. The First Hearing.

         The Court held a hearing on June 12, 2017. See Transcript (taken June 12, 2017), filed August 8, 2017 (Doc. 50)(“2017 Tr.”). The Court stated that it is “very likely” that the federal enclave doctrine bars the Plaintiffs' state law claims. See 2017 Tr. at 6:8-10 (Court). Sandia Labs stated that, at this point, “it makes more sense to us to dismiss the state law claims, let them ask whatever questions they want about jurisdictional issues in the meantime, and then just see where it takes us.” 2017 Tr. at 6:20-24 (Gordon). The Plaintiffs shared their concern that

if you were to dismiss the state claims, and then, downstream, reinstate them, there might be some question as to when the state class period starts. And . . . if the state class period would only start at the time that the claims were added to the amended complaint, obviously, we would be very concerned about the prejudice to the class.

2017 Tr. at 9:5-22 (Dermody). The Court stated that, although it was inclined to grant the Motion, it would not enter an order immediately. See 2017 Tr. at 10:2-6 (Court). The Court stated that the Plaintiffs may provide the Court with additional material or information it might secure in discovery relating to the federal enclave question. See 2017 Tr. at 10:8-19 (Court).

         5. The Plaintiffs' Supplemental Submission.

         After conducting discovery, the Plaintiffs filed a Supplemental Submission in Support of Plaintiffs' Opposition to Defendant's Motion to Dismiss State Law Claims, filed October 24, 2017 (Doc. 60)(“Supp. Submission”). The Plaintiffs allege that, based on depositions and discovered documents, Sandia Labs' “decision-making occurs within the state of New Mexico but outside the Kirtland Air Force Base with respect to the administration and development of core human resources policies and corporate practices at issue in this lawsuit.” Supp. Submission at 2.

         6. Response to the Supplemental Submission.

         Sandia Labs filed its Response to Plaintiffs' Supplemental Submission in Support of Plaintiffs' Opposition to Defendant's Motion to Dismiss State Law Claims, filed November 7, 2017 (Doc. 65)(“Supp. Response”). Sandia Labs contends that the Plaintiffs improperly focus on where policies are “administered” when the critical issue is “where the relevant decision-making occurred.” Supp. Response at 1. According to Sandia Labs, the Plaintiffs, in the Complaint, challenge decisions that were each made on the federal enclave. See Supp. Response at 4-5. Sandia Labs also contends that the Plaintiffs “misrepresent and misconstrue the evidence in the record” in various respects. Supp. Response at 1-2. Sandia Labs also states that, to the extent that the Plaintiffs continue to challenge policies created in the federal enclave, there is nothing in the record indicating that the Court should not dismiss the state claims. See Supp. Response at 6-7.

         7. Supplemental Submission Reply.

         The Plaintiffs replied to the Supp. Response. See Plaintiffs' Reply to Sandia's Response to Plaintiffs' Supplemental Submission in Support of Plaintiffs' Opposition to Sandia's Motion to Dismiss State Law Claims, filed December 1, 2017 (Doc. 70)(“Supp. Reply”). The Plaintiffs state that “it cannot be disputed that the core HR policies challenged in this action have been administered off-base during virtually the entire discovery period (since at least 2013).” Supp. Reply at 1. The Plaintiffs contend that, in their Supp. Submission, they do not misrepresent the discovery evidence. See Supp. Reply at 2-5. They also contend that the location where the named Plaintiffs' and the proposed class' workplaces is irrelevant to their challenge to Sandia Labs' “common policies.” Supp. Reply at 5.

         8. The Second Hearing.

         The Court held another hearing on January 19, 2018. See Hearing Transcript (taken January 19, 2018)(Doc. 78)(“2018 Tr.”). The Court began by expressing surprise that Sandia Labs would agree with the Plaintiffs that the standard -- expressed in Camargo v. Gino Morena Enterprises, L.L.C., No. EP-10-CV-242-KC, 2010 WL 3516186, at *2 (W.D. Tex. Sept. 2, 2010) (Cardone, J.)(“Camargo”) -- that the federal enclave doctrine applies to state claims when the locus of decisionmaking is on the federal enclave. See 2018 Tr. at 3:15-4:6 (Court). The Court stated that it would have imagined that the standard

would be where the damage [or] injury occurred, and where the employees worked, in an employment case. So it would be much like analogizing it to a choice of law, in that you don't look to necessarily where the decision was made; you would look at where the injury occurred. And so, particularly in New Mexico, being a Restatement 1 situation, you would look at where the injury occurred. And it seemed to me in an employment case it would be where the employee is housed. And so that would be what would govern is where does the employee work? Where did the injury occur?

2018 Tr. at 4:7-20 (Court).

         Sandia Labs began arguing for its Motion, stating that there are three reasons why the federal enclave doctrine “applies here to preempt the state law claims.” 2018 Tr. at 6:21-23 (Gordon). The first reason that Sandia Labs asserted is that the three named Plaintiffs worked on the Kirtland Air Force Base, and they challenge decisions made on the Kirtland Air Force Base. See 2018 Tr. at 6:24-7:2 (Gordon). Second, Sandia Labs asserted that its promotion, compensation, and evaluation policies “originated from inside Kirtland Air Force Base.” 2018 Tr. at 7:7:9-14 (Gordon). Sandia Labs contends that “either way you look at it, the locus of the decisionmaking is inside Kirtland Air Force Base, and it's the locus of decisionmaking that matters.” 2018 Tr. at 7:15-17 (Gordon). Sandia Labs explained that it agreed with the Camargo standard, because Sandia Labs wished to find common ground with the Plaintiffs and, under Camargo, the facts supported Sandia's position. See 2018 Tr. at 8:3-7 (Gordon). Sandia Labs asserted that its human resources' Vice President approves the challenged policies and that the vice-president, during the relevant time period, worked “inside Tech Area 1 inside Kirtland Air Force Base.” 2018 Tr. at 8:8-14 (Gordon). Sandia Labs recognized that there are human resources employees who work off of Kirtland Air Force Base, but they are not “the decisionmakers either with respect to the three named plaintiffs or with respect to issuing the policies that are at issue.” 2018 Tr. at 8:15-21 (Gordon). Sandia Labs illustrated its argument with an example:

You could be a mid-level manager in human resources and draft a policy in an airplane flying over Kansas, or [drafting a policy] on the back of a napkin at the Frontier on Central.[17] That Policy isn't issued or finally approved until it comes inside Kirtland Air Force Base, and goes to the desk of the vice-president of human resources, and gets vetted and reviewed and revised, and then it's approved. And there is no question here that these policies they're trying to challenge were finally approved by the vice-president of human resources from inside Kirtland Air Force Base.

2018 Tr. at 8:22-9:5 (Gordon). Sandia Labs argued that, even if the challenged policies are enforced outside of Kirtland Air Force Base, “the people who apply . . . or administer these policies [are not] decisionmakers, nor does it change the locus of the decisionmaking.” 2018 Tr. at 9:10-19 (Gordon).

         The Court asked why it should look to federal common law in interpreting whether the federal enclave doctrine applies to state claims. See 2018 Tr. at 11:24-12:2 (Court). Sandia Labs replied that the federal enclave doctrine is “procedural law that says: if the state cause of action -- whatever it is, statutory [or] common law -- if it was created after the federal enclave was created, then the federal enclave doctrine preempts them.” 2018 Tr. at 12:3-13 (Gordon).

         The Plaintiffs argued that, on a rule 12 motion, the Court must view all facts in the light most favorable to the plaintiff, and, in this case, they have alleged facts that “the locus of the relevant decisionmaking off base [sufficient] to survive a motion to dismiss.” 2018 Tr. at 16:9-15 (Shaver). The Plaintiffs contended that there is a factual dispute where the Vice President of human resources worked, because a chart provided by Sandia leaves blank an entry describing where the vice-president of human resources worked in 2017. See 2018 Tr. at 16:16-17:3 (Shaver). Moreover, the Plaintiffs contended that there is “no dispute” that the human resources and communications division is listed as being not on the Kirtland Air Force Base. 2018 Tr. at 17:4-11 (Shaver).

         The Court asked the Plaintiffs if they would consent to the Court converting the motion to a motion for summary judgment, if the Court ultimately decides doing so is necessary. See 2018 Tr. at 20:8-11 (Court). The Plaintiffs said that they would consent to the Court converting the motion to one for summary judgment. See 2018 Tr. at 20:12-16 (Court, Shaver). Sandia Labs also said that it would consent. See 2018 Tr. at 22:16-17 (Sandia).

         9. Post-Hearing Supplemental Brief.

         Sandia Labs submitted Sandia's Supplemental Post-Hearing Brief in Support of Sandia's Motion to Dismiss State Law Claims, filed January 31, 2018 (Doc. 83)(“Post-Hearing Brief”). Sandia Labs states that the Post-Hearing Brief “clarifies Sandia's position regarding how the federal enclave doctrine should be applied in this case.” Post-Hearing Brief at 1. Sandia Labs asserts that it “continues to maintain that the determining factor for applying the federal enclave doctrine is the place where a plaintiff worked because that is the place where the alleged injury occurred.” Post-Hearing Brief at 2. According to Sandia Labs, its arguments relating to Camargo “were simply intended to convey that even if Camargo set forth the applicable standard, dismissal is still appropriate because all relevant decisions occurred on [the Kirtland Air Force Base].” Post-Hearing Brief at 2. Sandia contends that the United States Court of Appeals for the Tenth Circuit and the Court have determined that “state law claims are precluded when the plaintiff worked on [the Kirtland Air Force Base].” Post-Hearing Brief at 3 (citing Benavidez v. Sandia National Laboratories, 212 F.Supp.3d 1039, 1094-97 (D.N.M. 2016) (Browning, J.)(“Benavidez”); Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1236 (10th Cir. 2012)(Tymkovich, J); Perkins v. Chugach Management Servs., 2015 WL 13666993 (D.N.M. Feb. 18, 2015)(Herrera, J)). Sandia contends that the federal enclave doctrine bars the state claims whether the Court looks to the place where a plaintiff worked or where the decisions are made. See Post-Hearing Brief at 4-5.

         10. The Plaintiffs' Post-Hearing Supplemental Brief Response.

         The Plaintiffs respond to the Post-Hearing Brief. See Plaintiffs' Response to Sandia's Supplemental Post-Hearing Brief Regarding Sandia's Motion to Dismiss State Law Claims, filed February 15, 2018 (Doc. 84)(“Post-Hearing Response”). The Plaintiffs contend that the Court's decision in Benavidez is consistent with Camargo, “and both cases support denial of Sandia's motion.” Post-Hearing Response at 1. According to the Plaintiffs, “an employee's job site is not determinative of where the employment discrimination claim arises.” Post-Hearing Response at 2. Moreover, the Plaintiffs contend that the Supreme Court of New Mexico instructs courts to look at Title VII federal law for guidance on where a discrimination claim arises, see Post-Hearing Response at 2 (citing Garcia v. Hatch Valley Pub. Sch., 2016-NMCA-034, ¶ 11, 369 P.3d 1, 4, rev'd, No. S-1-SC-35641, 2018 WL 1099030 (N.M. March. 1, 2018)), and, in the Tenth Circuit, a discrimination claim arises where the discriminatory decisions are made, see Post-Hearing Response at 2 (citing Reid v. D.P. Curtis Trucking, Inc., No. CIV 12-134, 2012 WL 5409786, at *1 (D.N.M. Oct. 31, 2012)(Molzen, M.J.); Tipnis v. Emery Tel., No. CIV A06CV02402WYDCBS, 2007 WL 1306495, at *1 (D. Colo. May 3, 2007)(Daniel, J.)).

         The Plaintiffs assert that the Court's decision in Benavidez is consistent with Camargo, because, in Benavidez, the Court asked “‘whether the events giving rise to this lawsuit took place at the Kirtland Air Force Base.'” Post-Hearing Response at 4 (quoting Benavidez, 2016 WL 9777419, at *40). The Plaintiffs contend that, in Benavidez, there was no question that the challenged decisions occurred on the Kirtland Air Force Base, whereas here, there is dispute whether the challenged decisions were made elsewhere. See Post-Hearing Response at 4-5.

         LAW REGARDING RULE 12(b)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true the complaint's well-pled factual allegations, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Board of Cty. Comm'rs, 278 F.Supp.3d 1245, 1258, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.).

         “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)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity, ” Jacobsen v. Deseret Book Co., 287 F.3d at 941; and (iii) “matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a TV episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint, ” central to the plaintiff's claim, and “undisputed as to their ...


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