United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Motion
to Dismiss or, in the alternative, for Summary Judgment [Doc.
3]. On February 27, 2019, Plaintiff filed a complaint against
Defendant in New Mexico's First Judicial District Court
alleging violations of the New Mexico Fair Pay for Women Act
(FPWA). Doc. 1-1. Plaintiff claims Defendant discriminated
against her on the basis of sex by not paying her a higher
wage and that Defendant retaliated against her for seeking a
higher wage. Doc. 1-1. Defendant removed the case on
diversity grounds to this Court on April 4, 2019. Doc. 1.
Defendant then filed the subject motion requesting the Court
to dismiss Plaintiff's claims or, in the alternative,
grant summary judgment.
Court finds that Plaintiff's claims are plausible and,
therefore, will focus its analysis on whether summary
judgment is warranted. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'”). Summary judgment is appropriate
when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine “if there is sufficient evidence on
each side so that a rational trier of fact could resolve the
issue either way, ” and it is material “if under
the substantive law it is essential to the proper disposition
of the claim.” Becker v. Bateman, 709 F.3d
1019, 1022 (10th Cir. 2013) (citation omitted). The question
“is whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so onesided that one party must prevail as a matter of
law.” Id. (citation omitted). When answering
that question, the Court must view the evidence and draw all
reasonable inferences from the underlying facts in the light
most favorable to the party opposing summary judgment.
judgment motions are fact intensive. Defendant, however, does
not provide the Court a record to make factual findings or
resolve factual disputes. Defendant, instead, relies almost
entirely on United States Magistrate Judge Gregory B.
Wormuth's factual findings in Dolin v. ThyssenKrupp
Elevator Corp., 2019 WL 452740 (D.N.M. Feb. 5, 2019), a
previously decided case between Plaintiff and Defendant
concerning similar claims. In that case, Judge Wormuth
granted Defendant's motion for summary judgment on
Plaintiff's Equal Pay Act (EPA) claim because even though
Plaintiff made a prima facie showing of discrimination,
Defendant demonstrated that Plaintiff's pay differential
was based on Plaintiff's performance problems, which is
an affirmative defense under the EPA. Dolin, at
*5-13. In relying on Judge Wormuth's factual findings in
Dolin for this case, Defendant disregards the fact
that this case concerns the FPWA, not the EPA; that the FPWA
lacks the EPA's catch-all affirmative defense (“a
differential based on any other factor other than
sex”); and, most significantly, that the record in
Dolin did not support granting Defendant summary
judgment on Plaintiff's FPWA claim. Compare N.M.
Stat. Ann. § 28-23-3(A) (FPWA), with 29 U.S.C.
§ 206(d)(1) (EPA); Dolin, at *19-21 (Judge
Wormuth explaining that the FPWA does not incorporate the
EPA's catch-all affirmative defense and that, as a
result, Defendant's motion for summary judgment on
Plaintiff's FPWA claim would have been denied had Judge
Wormuth exercised supplemental jurisdiction over it).
Plaintiff, in her Response, stated the following additional
1. TKE's decision to deny Dolin the plus rate at the time
of her 2010 reinstatement was made on an ad hoc basis,
without any reference to an objective system for measuring
the quality of her work against the work of other employees.
See Ex. 1, ¶¶ 6, 7, 22, 28, 30.
2. During the time that Dolin was employed at TKE, TKE did
not maintain any bona fide system that employed objective
criteria to measure the quality of employee's work.
See Ex. 1 ¶¶ 3 - 10, 22, 30. TKE has
presented no evidence of any such system of measurement, but
does state that the plus rate was removed and later denied to
Dolin because TKE did not “believe” she was
deserving of the rate. See Ex. 8 - 30(b)(6) Depo. p.
at 12. Plaintiffs facts are material because they go directly
to whether Defendant can satisfy the FPWA's “merit
system” affirmative defense. Defendant attempts to
controvert Plaintiffs facts by relying exclusively on Judge
Wormuth's factual findings in Dolin, despite
Judge Wormuth having already explained that the record in
Dolin did not support summary judgment on Plaintiffs
FPWA claim. Dolin, at *19-21 (“If ‘merit
system' means the same under the FPWA as it does under
the EPA, Defendant's motion for summary judgment on the
FPWA claim would be denied on this record.”). Defendant
has failed to controvert Plaintiffs material facts. The
Court, therefore, must treat Plaintiff s material facts as
undisputed. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the Response will be deemed
undisputed unless specifically controverted.”).
Defendant, as a result, cannot show that summary judgment is
IS THEREFORE ORDERED that Defendant's Motion to
Dismiss, or in the alternative, for ...