United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT RANDALL EVANS' MOTION TO
MATTER is before the Court on Defendant Randall Evans'
Motion to Dismiss (Doc. 17). Evans asserts
multiple grounds for dismissal including qualified immunity,
lack of subject matter jurisdiction, and failure to state a
claim. Having reviewed the parties' briefing and
considered the applicable law, the Court finds that the
Motion should be GRANTED IN PART and
DENIED IN PART for the reasons set forth below.
an employment harassment, discrimination, and retaliation
case wherein Plaintiff, a former Executive Director of
Information Technology at Rio Rancho Public Schools
(“RRPS”), alleges that she was subjected to
gender-based harassment by a coworker, RRPS' Chief
Procurement Officer, Tom Weeks
(“Weeks”). (Doc. 15 ¶¶ 1, 9.) Plaintiff
alleges that Weeks' supervisor, Randall Evans
(“Evans”), knew of the alleged harassment and
permitted it to continue. (Doc. 22 at 1-5.) Moreover,
Plaintiff alleges that all Defendants,  including Evans,
retaliated against her for reporting the alleged harassment.
(Doc. 15 ¶ 1.)
Plaintiff's 45-page, 184 paragraph First Amended
Complaint (“Complaint”) lays out numerous
allegations of alleged harassment, including that Weeks
yelled at Plaintiff, bullied her, sought to undermine and
sabotage her with regard to her procurement responsibilities,
“derisive[ly]” laughed when she spoke, made false
accusations against her, refused to acknowledge her expertise
and input, and engaged in a “irrational and concerning
course of conduct, ” including not following
“best practices for IT purchases” and delaying
technology related purchase requests for months at a time.
(Id. ¶¶14-16, 35.) Plaintiff makes a
number of specific, detailed allegations with regard to
Weeks' purported “concerning course of
conduct” and even cites an email by a fellow employee
who “registered his outrage” at Weeks'
handling of procurement decisions. (See Id.
¶¶ 17-42, 56-62.) Within this series of
allegations, Plaintiff avers multiple times that Richard
Bruce and Evans did not address the issues raised by
Plaintiff or other employees. (See e.g., Id.
¶¶ 26, 28, 30, 37, 42, 62, 75, 97).
Plaintiff does not allege any specific, overt instances of
gender-based harassment, she summarily states that Weeks
“consistently treated women with contempt and derision,
but especially Plaintiff.” (Id. ¶ 14.)
Plaintiff also cites to a finding from RRPS' internal
investigation that “‘there is a general consensus
and concern among Executive Directors and
Directors'” that Weeks was difficult to work with
and created “‘numerous issues for
departments.'” (Doc. 15 ¶ 64.) Plaintiff
alleges that during that same investigation, multiple
employees reported that Weeks treated women
“differently” in the sense that his difficult
behavior was amplified when dealing with women as opposed to
men. (Doc. 15 ¶¶ 65-71.) She further asserts that,
“upon information and belief, ” Weeks did not
mistreat or disregard male executive directors in similar
fashion. (See e.g., Id. ¶¶ 32, 34, 36,
40.) Some of her allegations also include conclusory add-ons
regarding gender, e.g., Weeks attempted to undermine
Plaintiff “because of her sex.” (Id.
¶¶ 1, 33, 73, 141, 162.)
claims against Evans include violation of the Equal
Protection Clause (Count IV) and gender harassment (Count V),
sex discrimination (Count VI), and retaliation (Count VII)
under the New Mexico Human Rights Act, 1978 NMSA §
28-1-1 et seq. (“NMHRA”). Evans argues
that he is entitled to dismissal of all four claims.
Plaintiff adequately exhausted her administrative remedies,
giving this Court subject matter
like his co-defendants (see Doc. 16) asserts that
this Court lacks jurisdiction over Plaintiff's NMHRA
claims (Counts V, VI, and VII) because Plaintiff did not
properly exhaust her administrative remedies. (Doc. 17 at
16-18.) Plaintiff avers that the exhaustion requirement is no
longer jurisdictional in the Tenth Circuit but that in any
event she did exhaust her administrative remedies. (Doc. 22
threshold matter, the Courts notes that while the Tenth
Circuit has recognized that the administrative exhaustion
requirement is not jurisdictional for claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et
seq., (“Title VII”), see Smith v. Cheyenne
Ret. Inv'rs L.P., 904 F.3d 1159, 1163-64, (10th Cir.
2018), under New Mexico law exhaustion is a jurisdictional
prerequisite for NMHRA claims. Mitchell-Carr v.
McLendon, 980 P.2d 65, 71 (N.M. 1999) (“[T]he
exhaustion of administrative remedies is a prerequisite to
suit under the NMHRA, and a failure to exhaust administrative
remedies may mean that the district court lacks
subject-matter jurisdiction.”). As such, the issue
before the Court is whether Plaintiff exhausted her
administrative remedies with respect to the state law
claims against Evans.
axiomatic that a court must have a basis for jurisdiction.
Where subject matter jurisdiction is lacking, the Court
must dismiss the action. Fed.R.Civ.P. 12(h)(3).
Motions to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction “generally take one of two forms:
(1) a facial attack on the sufficiency of the complaint's
allegations as to subject matter jurisdiction; or (2) a
challenge to the actual facts upon which subject matter
jurisdiction is based.” Ruiz v. McDonnell, 299
F.3d 1173, 1180 (10th Cir. 2002). Where the attack is facial,
the Court presumes all the allegations contained in the
complaint to be true. Id. But where the
jurisdictional facts are attacked, no presumptive
truthfulness attaches, and the Court has discretion to
consider affidavits or other documents to resolve the issue.
See Holt v. United States, 46 F.3d 1000, 1003 (10th
Cir. 1995) (citations omitted).
Evans attacks the underlying jurisdictional facts and argues
that Plaintiff failed to provide him fair notice of her
complaints. He further asserts that the allegations in
Plaintiff's EEOC charges are a “far cry” from
the conduct alleged in the Complaint. (Doc. 23 at 12.)
first argues that he was not properly named as a respondent
in Plaintiff's February 2017 EEOC filing and objects to
the sufficiency of the reference to him therein.
(Id.) But the Court notes that the form's
instructions expressly require Plaintiff to complete the form
as she did. (See Doc. 16-1). See also Campos v.
Las Cruces Nursing Ctr., 828 F.Supp.2d 1256, 1276-77
(D.N.M. 2011) (recognizing that the New Mexico Supreme Court
would likely find that naming an individual in the body an
EEOC charge is sufficient to name them as a respondent to the
case). As such, the Court finds that Evans is named in
Plaintiff's EEOC filing. Compare Luboyeski v.
Hill, 1994-NMSC-032, ¶ 7, 117 N.M. 380 (New Mexico
Supreme Court upheld dismissal where certain defendants were
not named as respondents to the administrative charges but
were included in the district court suit).
exhaustion rule derives from two principal purposes:”
(1) “to give notice of the alleged violation to the
charged party;” and (2) “to give the EEOC an
opportunity to conciliate the claim, which effectuates Title
VII's goal of securing voluntary compliance.”
Smith, 904 F.3d at 1164 (internal quotation
omitted). The relevant inquiry “is whether the conduct
alleged [in the lawsuit] would fall within the scope of an
EEOC investigation would which reasonably grow out of the
charges actually made [in the administrative filing].”
Jones v. United Parcel Serv., 502 F.3d 1176, 1186
(10th Cir. 2007). An EEOC filing must be given liberal
construction. Id. “This more lenient pleading
standard contemplates the fact that administrative charges of
unlawful employment practices are regularly filled out by
employees who do not have the benefit of counsel” and
thus precise pleading is not required at the administrative
stage. Mitchell v. City & County of Denver, 112
Fed.Appx. 662, 667 (10th Cir. 2004).
liberally construing Plaintiff's February 2017 EEOC
Complaint, the Court finds that the conduct alleged by
Plaintiff in the Complaint would have fallen in the scope of
any EEOC inquiry resulting from her allegations that Weeks
harassed her, and that Evans failed to take any effective
action regarding the conduct. (See Doc. 16-1.) Put
another way, the Court is convinced that Evans had fair
notice based on the EEOC Complaint that Plaintiff believed
Evans was liable for the harassment, discrimination, and
retaliation against her. Plaintiff literally “checked
the box” on the EEOC Complaint form regarding sex
discrimination and retaliation (Doc. 16-1). Cf.
Jones, 502 F.3d at 1186 (explaining that where a
plaintiff fails to check the appropriate box of an EEOC form,
he creates a presumption that he is not asserting a claim
represented by that box). Further, as discussed above, Evans
was properly named as a respondent. He cannot now claim to be
surprised by the allegations in the Complaint simply because
the allegations therein are more specific than the general
claims made in the EEOC Complaint. (See Doc. 23 at
12.) While Evans advocates for a requirement of detailed
specificity for the allegations in an administrative filing
to past exhaustion requirement muster, he points the Court to
no binding authority which so requires, and the Court is not
inclined to support his propositions for him. See Gross
v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir.
1995). And, while Evans correctly points out that he is not
named in two of three charges, the allegations in the
February 2017 charge are sufficient to have put him on
for all the foregoing reasons, Evans' Motion to Dismiss
on subject matter jurisdiction grounds is
Plaintiff failed to state a claim for gender harassment and
sex discrimination, but has plausibly
pleaded a claim for retaliation.
Legal Standard Under Federal Rule of Civil Procedure
survive a motion to dismiss under Rule 12(b)(6), the
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Complaints which are nothing more than “a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Although a court must accept all the complaint's factual
allegations as true, the same is not true of legal
conclusions, including legal conclusions couched as factual
allegations. Id. at 555-56.
“in ruling on a motion to dismiss, a 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.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). In deciding whether the
plaintiff has adequately stated a claim for relief, we view
“the totality of the circumstances as alleged in the
complaint in the light most favorable to [the
plaintiff].” Jones v. Hunt, 410 F.3d 1221,
1229 (10th Cir. 2005). ...