Vigil v. New Mexico Public Education Department

Filing 103

ORDER by District Judge Kenneth J. Gonzales adopting 80 Magistrate Judge's Proposed Findings and Recommended Disposition, and granting 15 Defendant's Motion to Dismiss the First, Second and Third Causes of Action of Plaintiff's Complaint Based on Exhaustion Defects. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NORMAN VIGIL,
Plaintiff,
v.

CIV No. 16-47 KG/KK

NEW MEXICO PUBLIC
EDUCATION DEPARTMENT,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court upon United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (“PFRD”), filed January 4, 2017,
(Doc. 80). In the PFRD, the Magistrate Judge recommended that Defendant’s Motion to Dismiss
the First, Second and Third Causes of Action of Plaintiff’s Complaint Based on Exhaustion
Defects (the “Motion to Dismiss”), (Doc. 15), be granted.
The parties were notified that written objections to the PFRD were due within 14 days.
(Doc. 80 at 11). Plaintiff filed Plaintiff’s Objections to Proposed Findings and Recommended
Disposition Regarding Defendant’s Motion to Dismiss (the “Objections”), (Doc. 88), on January
18, 2017. After a de novo review of the record and the PFRD, the Court adopts Judge Garza’s
PFRD in its entirety.
I.

Procedural Background
Plaintiff filed his Complaint for Damages for Discrimination and Retaliation (the

“Complaint”) in the First Judicial District Court for the State of New Mexico. (Doc. 1 at 1). In
the Complaint, Plaintiff alleges that Defendant violated his rights under Title VII of the Civil
Rights Act (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq.; the New Mexico Human Rights Act (“HRA”), NMSA
1978, §§ 28-1-1 et seq.; the New Mexico Whistleblower Protection Act (“WPA”), NMSA 1978
§§ 10-16C-1 et seq.; and committed the common law tort of constructive discharge. (Doc. 1-1,
Ex. A at 1). Plaintiff specifically asserts disability and sex discrimination in violation of the
ADA, Title VII, HRA, and WPA. (Doc. 1-1, Ex. A at 8-11; See Doc. 38 at 2 n.1). Plaintiff also
alleges constructive discharge and retaliation in violation of the ADA and HRA. (Doc. 1-1, Ex.
A at 8-11; See Doc. 38 at 2 n.1). On January 22, 2016, Defendant removed the case to this Court.
(Doc. 1).
Defendant moved to dismiss the first, second, and third causes of action in the Complaint
for failure to exhaust administrative remedies. (Doc. 17). Plaintiff filed his First Amended
Complaint for Damages for Discrimination and Retaliation (the “Amended Complaint”) after he
filed Plaintiff’s Response to Defendant’s Motion to Dismiss. (Doc. 19). In the Amended
Complaint, Plaintiff alleged that he exhausted his administrative remedies for all of his claims.
(See Doc. 33). Thereafter, Defendant filed a notice with the Court agreeing to partially withdraw
its Motion to Dismiss. (See Doc. 38). Presently before the Court is Defendant’s argument that
Plaintiff’s retaliation claims based on the ADA and HRA, as set forth in the first and third causes
of action, (See Doc. 33 ¶¶ 70, 80, 81), should be dismissed for failure to exhaust administrative
remedies. (Doc. 38 at 1, 3).
The Court referred Defendant’s Motion to Dismiss to Judge Garza to perform legal
analysis and recommend an ultimate disposition. (Doc. 75). Judge Garza concluded that Plaintiff
had not exhausted his administrative remedies as to the retaliation claims. Accordingly, Judge
Garza ultimately recommended that Defendant’s Motion to Dismiss be granted. Plaintiff
subsequently filed his Objections to the PFRD.

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I.

Objections
A. Law Relating to Objections
After a magistrate judge files a recommended disposition, a party may serve and file

specific written objections to the proposed findings and recommendations. FED. R. CIV. P.
72(b)(2). An objection must be both timely and “sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute.” United States v. One Parcel of
Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). In addition, “[i]ssues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater,
75 F.3d 1421, 1426 (10th Cir. 1996) (internal citations omitted).
When resolving objections to a magistrate judge’s recommendation, the district judge
must make a de novo determination regarding any part of the recommendation to which a party
has properly objected. 28 U.S.C. § 636(b)(1)(C). In doing so, “[t]he district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3).
B. Plaintiff’s Objections to the PFRD
In the PFRD, Judge Garza concluded that Plaintiff did not exhaust his
administrative remedies with regard to the retaliation charges based on the Charge of
Discrimination (the “Charge”) filed with the Equal Employment Opportunity Commission
(“EEOC”).
Plaintiff objects to Judge Garza’s ultimate finding. Specifically Plaintiff objects to the
PFRD because Judge Garza (1) failed to construe ambiguity in the Charge in Plaintiff’s favor;
and (2) refused to consider the Intake Questionnaire as evidence of Plaintiff’s intent to pursue

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retaliation claims. (Doc. 88 at 8-10). Defendant did not respond to Plaintiff’s Objections and the
time to do so has passed.
1. Construing Ambiguity in the Charge
In the PFRD, Judge Garza found that Plaintiff did not allege retaliatory actions in
his Charge. Judge Garza made this finding by looking at the allegations in the Charge. The
Court’s “inquiry is limited to the scope of the administrative investigation that can reasonably be
expected to follow from the discriminatory acts alleged in the administrative charge.” Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis in original). Therefore, based on
the Charge, Judge Garza determined that Plaintiff did not allege retaliatory actions.
In the Objections, Plaintiff argues that the Charge contained facts which were related to
retaliatory acts; therefore, the scope of the Charge included retaliation. (Doc. 88 at 7) (citing
Jones, 502 F.3d at 1186-87). Plaintiff states that he included a harassment allegation in the
Charge because he wanted to pursue a retaliation claim. (Doc. 88 at 9). Plaintiff claims that
Judge Garza improperly construed ambiguity in the Charge against Plaintiff. (Doc. 88 at 8).
As Judge Garza stated in the PFRD, Title I of the ADA requires a plaintiff to exhaust his
administrative remedies prior to filing a lawsuit. Jones, 502 F.3d at 1183 (citing MacKenzie v.
City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). To exhaust a claim, a plaintiff
must first file a Charge with the EEOC. Id. (citing Jones v. Runyon, 91 F.3d 1398, 1399 n. 1
(10th Cir. 1996)).
If a plaintiff filed a Charge, the Court must “determine the scope of the allegations raised
in the EEOC charge because ‘[a] plaintiff’s claim in federal court is generally limited by the
scope of the administrative investigation that can reasonably be expected to follow the charge of
discrimination submitted to the EEOC.’” Id. at 1186 (quoting MacKenzie, 414 F.3d at 1274)

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(citing Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000) (“[T]he facts alleged in the
charge must be sufficiently related to the claim such that those facts would prompt an
investigation of the claim.”)). The Court should liberally construe charges that are filed with the
EEOC in deciding whether a claim has been administratively exhausted. Id. However, the
Charge must contain facts about the discriminatory and retaliatory actions alleged. Id. “The
failure to mark a particular box creates a presumption that the charging party is not asserting
claims,” but the presumption may be rebutted “if the text of the charge clearly sets forth the basis
of the claim.” Id. (citing Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir.
1998)).
In his Charge, Plaintiff checked the boxes for sex and disability discrimination, but did
not check the retaliation box. In the narrative portion of the Charge, Plaintiff wrote:
STATEMENT OF HARM: I’ve been employed by the [Defendant] since 1997
and my current position is IT Systems Manager-IV. I have been harassed by the
Deputy Secretary and denied reasonable accommodation requests. I am aware of
female employees who have been given reasonable accommodations and I have
never been given a valid reason as to why my requests have been denied. I am
currently on Workman’s Comp[ensation] leave due to the situation at work.
STATEMENT OF DISCRIMINATION: I believe I have been discriminated
against due to my sex (Male) and due to disability and this is in violation of Title
VII of the Civil Rights [A]ct of 1964, as amended and the Americans [w]ith
Disabilities [A]ct.
(Doc. 17-1, Ex. A).
Plaintiff continues to argue that the statement in the Charge regarding harassment refers
to the retaliation he alleges. (Doc. 88 at 9). Plaintiff also maintains that any ambiguity in the
statement should be resolved in his favor. (Doc. 88 at 8). In support of his argument, Plaintiff
relies on Jones v. U.P.S. In Jones, the Tenth Circuit found that although the Plaintiff did not

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check the retaliation box on one page of the Charge, the information in the Charge would have
triggered an administrative investigation. Jones, 502 F.3d at 1187.
Jones is distinguishable from the case at bar. First, although the Plaintiff in Jones did not
check the retaliation box on page two of his Charge, he checked the box on page three of the
Charge. Id. Further, the Court found that the facts in the Charge explained the “conduct
underlying both his discrimination and retaliation claims. Thus, given the factual allegations
contained in the charge and the fact that [Plaintiff] checked a box for retaliation, an
administrative investigation of [Plaintiff’s] retaliation claim ‘can reasonably be expected to
follow the charge of discrimination.’” Id. (quoting MacKenzie, 414 F.3d at 1274).
By comparison, in this case, Plaintiff did not mark a box for retaliation and did not allege
facts that would prompt an investigation into the claim. Id. at 1186 (citing MacKenzie, 414 F.3d
at 1274; Sumser Ret. Vill., 209 F.3d at 853). As Judge Garza noted, Plaintiff’s claim is limited by
the EEOC investigation that could reasonably follow the Charge. Here, the Determination Letter
from the EEOC states that “[b]ased upon the evidence and the record as a whole, there is
reasonable cause to conclude that [Plaintiff] was discriminated against because of his disability
and sex (male) [in] violation of the ADA and Title VII.” (Doc. 19-3, Ex. 1B). The EEOC did not
investigate a retaliation claim based on the Charge and the Court cannot say that the narrative in
the Charge would lead to an investigation of retaliation. Thus, the Court agrees with Judge Garza
that Plaintiff did not exhaust his administrative remedies with regard to the retaliation claim.
2. Consideration of the Intake Questionnaire
Plaintiff also objects to Judge Garza’s failure to consider the Intake
Questionnaire that Plaintiff filled out before filing his Charge. (Doc. 88 at 9-10). Prior to filing
his Charge, Plaintiff filled out an Intake Questionnaire in which he checked the box for

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retaliation. (See Doc. 19, Ex. 1A). Plaintiff states that “[t]he fact that [Plaintiff] intended for his
complaint to include retaliation claims is supported by his EEOC Intake Questionnaire.” (Doc.
88 at 10).
The Tenth Circuit has found that “it would defeat the statutory scheme to find exhaustion
where an employee includes a claim in the intake questionnaire, but then omits it in a timely
subsequent formal charge that forms the basis for the administrative proceedings.” Green v. JP
Morgan Chase Bank N.A., No. 11-5153, 501 Fed. Appx. 727, 731 (10th Cir. Nov. 1, 2012)
(unpublished) (citing Barzanty v. Verizon Pa., Inc., No. 08-1010, 361 Fed. Appx. 411, 415 (3d
Cir. Jan. 20, 2010) (unpublished)). This is because the Intake Questionnaire and Charge have
different purposes. The Intake Questionnaire “facilitates ‘pre-charge filing counseling’ and
allows the [EEOC] to determine whether it has jurisdiction to pursue a charge,” and is not shared
with an employer. Barzanty, 361 Fed. Appx. at 415 (citing Fed. Express Corp. v. Holowecki, 552
U.S. 389 (2008)). By contrast, the Charge “serves to define the scope of the [EEOC’s]
investigation and to notify the defendant of the charges against it.” Id. (citing 42 U.S.C. § 2000e5(b) (requiring the EEOC to serve notice of a Charge, which must include the circumstances of
the alleged unlawful employment action, on an employer against whom it is made . . . and to
conduct an investigation)).
Plaintiff argues that Judge Garza’s decision not to look at the Intake Questionnaire to
determine Plaintiff’s intent was a misreading of Green. (Doc. 88 at 9). Plaintiff states that in
Green, the Plaintiff tried to transfer the allegations from the intake questionnaire to his Charge
because the allegations were missing in the Charge. (Doc. 88 at 9). Plaintiff’s arguments are
unavailing.

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Plaintiff asks the Court to look at the Intake Questionnaire for proof that Plaintiff
intended to include the retaliation claim in his Charge. (Doc. 88 at 10) (“The fact that [Plaintiff]
intended for his complaint to include retaliation claims is supported by his EEOC Intake
Questionnaire.”). However, this is exactly what the Tenth Circuit found that the Court cannot do.
The Court will not look to the Intake Questionnaire to determine Plaintiff’s intent as it would
“defeat the statutory scheme.” Because the Court does not find that Plaintiff alleged retaliation in
the Charge, the Court finds that Plaintiff did not exhaust his claim.
II.

Conclusion
The Court agrees with Judge Garza’s recommendation that Defendants’ Motion should

be denied.
For the reasons stated above, the Court will ADOPT the magistrate judge’s
recommendations in the PFRD. IT IS THEREFORE ORDERED that Defendant’s Motion to
Dismiss the First, Second and Third Causes of Action of Plaintiff’s Complaint Based on
Exhaustion Defects, (Doc. 15), be GRANTED.

UNITED STATES DISTRICT JUDGE

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