United States District Court, D. New Mexico
MELISSA AXELROD and JULIE SHIGEKUNI, on behalf of themselves and other employees similarly situated, Plaintiffs,
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
MATTER comes before me pursuant to the Court's Order of
Reference (doc. 20), referring Defendant's
Motion to Dismiss Plaintiffs' Complaint for Damages for
Violation of Fair Pay Laws (doc. 4) and the
attendant briefing (docs. 5, 14, 15) to me for
analysis, proposed findings, and recommended disposition. For
the following reasons, I RECOMMEND that the Court DENY the
Motion to Dismiss as it pertains to Plaintiffs' claims
arising under the Fair Pay for Women Act
(“FPWA”). Further, I RECOMMEND that the Court
DENY the Motion to Dismiss as it pertains to the EPA claims
and instead permit Plaintiffs leave to amend their Complaint
to better articulate why their Equal Pay Act
(“EPA”) claims are not barred by the statute of
limitations due to the federal discovery rule.
removed this action from the Second Judicial District Court,
County of Bernalillo, State of New Mexico to this Court on
May 4, 2018. Doc. 1. Plaintiffs filed their First
Amended Complaint-the operative Complaint in this action-in
state court below on April 17, 2018, alleging that Defendant
violated the New Mexico Fair Pay for Women Act
(“FPWA”), the New Mexico Human Rights
(“NMHRA”), and the federal Equal Pay
(“EPA”). Plaintiffs are women who are current or
past employees of the University of New Mexico
(“UNM”) and hold positions as professors,
department chairs, and other upper-level academic positions.
Doc. 1-3 at 1. Plaintiffs' asserted factual
basis for their claims is that they were paid less than male
employees of UNM performing similar work, under similar
conditions, utilizing similar skills, effort, and
responsibility as Plaintiffs, and that these sex-based pay
disparities violate both state and federal law, entitling
Plaintiffs to compensatory and punitive damages. Id.
at 3-7. Plaintiffs received letters from the Equal Employment
Opportunity Commission (“EEOC”) dated June 27,
2017, informing them of the EEOC's determination,
following a “direct charge” investigation, that
Defendant's pay practices with regard to each Plaintiff
violated the EPA. Id. at 2, 4; see also doc.
5 at 1; doc. 5-2; doc. 14 at 8-9,
17-25. In these letters, the EEOC disclosed to each Plaintiff
specific amounts of back wages and interest that she was due
based on pay disparities between 2007 and 2014, according to
the EEOC's investigation. Doc. 14 at 23-25.
Plaintiffs assert that Defendant Board of Regents of UNM is
the governing body ultimately responsible for such
discriminatory and unlawful pay disparities. Id. at
removal, on May 25, 2018, Defendant filed a Motion to Dismiss
and a Memorandum in Support (docs. 4, 5), which are
now before me pursuant to the Court's Order of Reference.
argues that Plaintiffs' FPWA claims are barred because
Defendant is a state entity and the FPWA contains no waiver
of state immunity. See doc. 5 at 4-7. Plaintiffs
argue that the FPWA does apply to state employers such as
Defendant, because the FPWA is part of the same statutory
scheme as the NMHRA, which explicitly allows employment
discrimination claims to be brought against state employers.
Doc. 14 at 4-7. Both parties acknowledged that
whether the FPWA applies to state employers was a question
then pending before the New Mexico Court of Appeals in the
consolidated cases of Tafoya Lucero v. N.M. Corrs.
Dep't, Ct. App. 35, 438, Dist. Ct. No.
D-101-CV-2013-03206 (Briefing Complete as of 10-7-16), and
Wolinsky v. N.M. Corrs. Dep't, Ct. App. No. 35,
762, Dist. Ct. No. D-101-CV-2016-01005 (Briefing Complete as
of 3-29-17). In those cases, state district court judges
reached opposing conclusions on the issue. See doc.
5 at 4 n.1; doc. 14 at 5; see also Gonzales
v. Cty. of Taos & Taos Cty. Bd. of Comm'rs,
Order Granting in Part and Denying in Part Defendants'
Motion for Summary Judgment, doc. 58 at 32-33 in
17-cv-0582 NF/KHR (D.N.M. Aug. 1, 2018).
the fact that this matter of first impression under New
Mexico law was, at the time of Plaintiffs' Response,
pending before a state court, Plaintiffs presented several
alternative options to the Court: (1) decide the state law
question based on the parties' briefing; (2) certify the
question to the New Mexico Supreme Court pursuant to N.M.R.A.
12-607(A)(1); or (3) reserve ruling on the question, pending
the outcome of the Wolinsky/Lucero cases. Doc.
14 at 5-6. Defendant urged this Court to decide the
issue directly and presented its legal arguments that the
FPWA claims do not apply to state employers and should thus
be dismissed. Doc. 5 at 4-7; doc. 15 at
the EPA claims, Defendant contends that Plaintiffs' EPA
claims are untimely, because Plaintiffs failed to bring these
claims within the applicable statute of limitations period.
Id. at 13-15. In response, Plaintiffs argue that,
because they were unaware of the disparate pay forming the
basis of their claims until they received the June 2017 EEOC
letters, these claims are timely filed based upon the federal
“discovery rule, ” which delays the accrual of a
claim until a plaintiff knew or should have known the facts
necessary to establish her cause of action. Doc. 14
at 9-11; see also Varnell v. Dora Consol. Sch.
Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (describing
the federal discovery rule). Further, Plaintiffs argue that
the “continuing violation” doctrine also applies
and makes their claims timely. Doc. 14 at 12-13.
Under the continuing violation doctrine, “a plaintiff
may recover for discriminatory acts that occurred prior to
the statutory limitations period if they are ‘part of a
continuing policy or practice that includes the act or acts
within the statutory period.'” Davidson v. Am.
Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003)
(quoting Mascheroni v. Bd. of Regents of the Univ. of
Cal., 28 F.3d 1554, 1561 (10th Cir. 1994)). Accordingly,
Plaintiffs request that the Court deny Defendant's motion
to dismiss the EPA claims outright, or, in the alternative,
that the Court grant Plaintiffs leave to amend their First
Amended Complaint in order “to more artfully plead the
elements of delayed discovery under the Discovery Rule and/or
a continuing violation of the EPA, under the Ledbetter Fair
Pay Act[.]” Doc. 14 at 15. In its Reply,
Defendant contends that neither the continuing violation
doctrine nor the discovery doctrine is applicable to toll the
statutory limitations period governing Plaintiffs' EPA
claims, making leave to amend futile.
The Court should deny the motion to dismiss as it applies to
Plaintiffs' FPWA claims.
time of briefing, the question of whether FPWA claims can be
brought against state entities was a matter of first
impression in New Mexico and remained pending before the New
Mexico Court of Appeals. See Gonzales, Order
Granting in Part and Denying in Part Defendants' Motion
for Summary Judgment, doc. 58 at 32-33 in 17-
cv-0582 NF/KHR (D.N.M. Aug. 1, 2018) (discussing the pending
New Mexico Court of Appeals consolidated cases and reserving
ruling on the same issue in part because “the reach of
the FPWA appears to be an issue of significant state
importance, including issues of state sovereignty.”).
On August 30, 2018, the New Mexico Court of Appeals filed its
opinion in the consolidated Wolinsky/Lucero
cases. Wolinsky v. New Mexico Corrections
Dep't, No. A-1-CA-35762 (N.M. Ct. App. August 30,
2018). The Wolinsky court held that the state has no
sovereign immunity from liability under the FPWA, and the
legislature intended the state to be subject to FPWA claims.
existence of sovereign immunity under the FPWA (and thus the
viability of Plaintiffs' FPWA claim) is a question to be
resolved by reference to state law. “‘A federal
court sitting in diversity applies the substantive law,
including choice of law rules, of the forum state.' This
rule also applies when a federal court exercises supplemental
jurisdiction over state law claims in a federal question
lawsuit.” BancOklahoma Mortg. Corp. v. Capital
Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999) (quoting
Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir.
1994) (internal citations omitted)). In ruling directly on
Defendant's motion to dismiss the FPWA claims, the Court
must predict the decision of the state's highest court.
Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.
1988) (“If the state's highest court has not
addressed the issue presented, the federal court must
determine what decision that state court would make if faced
with the same facts and issue.”). The Court does so by
considering “state court decisions, decisions of other
states, federal decisions, and the general weight and trend
of authority.” Id. Where the state's
highest court has not issued a controlling decision, “a
decision by an intermediate court should be followed by the
Federal court, absent convincing evidence that the highest
court would decide otherwise.” Black & Veatch
Corp. v. Aspen Ins. (UK) Ltd., 882 F.3d 952, 967 (10th
Cir. 2018). In the case before the Court, there has
been a clear decision by the New Mexico Court of Appeals.
While the defendant in Wolinsky has noticed an
appeal to the New Mexico Supreme Court, Defendant in the
instant case has presented no evidence or argument that the
New Mexico Supreme Court would decide differently.
Consequently, for the purposes of the motion to dismiss, it
is proper for the Court to adopt the New Mexico Court of
Appeals' interpretation of state law as articulated in
to Defendant's dismissal argument, Defendant contends
that Plaintiffs have failed to state a claim under the FPWA
because FPWA claims against the state are barred by sovereign
immunity. Doc. 5 at 4. The Court may dismiss a
complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Fed.R.Civ.P. 12(b)(6). In ruling on
12(b)(6) motion, the Court must accept as true all
well-pleaded factual allegations in the complaint and must
view them in the light most favorable to the nonmoving party.
Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999). The Court should not
grant a 12(b)(6) motion “unless it appears beyond doubt
that the plaintiff can prove no set of facts in ...