Tellez v. Bimbo Bakeries
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part and denying in part 7 Partial Motion to Dismiss Plaintiff's Complaint; and granting in part and denying in part 22 Motion to Amend/Correct Complaint. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 16-141 KG/KK
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon two motions: (1) Defendant Bimbo Bakeries
USA, Inc.’s Partial Motion to Dismiss Plaintiff’s Complaint and supporting memorandum
(collectively, Motion to Dismiss) brought under Fed. R. Civ. P. 12(b)(1) and filed on March 7,
2016; and (2) Plaintiff Araceli Tellez’s Opposed Motion to Amend Complaint (Motion to
Amend), filed on May 13, 2016. (Docs. 7, 8 and 22). Defendant Bimbo Bakeries USA, Inc.
(BBU) argues in the Motion to Dismiss that the Court lacks subject matter jurisdiction because
Plaintiff Araceli Tellez (Ms. Tellez) failed to exhaust her administrative remedies under the New
Mexico Human Rights Act (NMHRA). Ms. Tellez seeks to amend her complaint to include a
sentence stating that she has exhausted her administrative remedies. Both motions are now fully
briefed, including supplemental briefing requested by the Court. (Docs. 11, 13, 23, 43 and 44).
Having considered the Motion to Dismiss, the Motion to Amend, the Complaint for
Discrimination on the Basis of Race, Sex and Retaliation (Complaint) (Doc. 12-1), and all of the
briefing, the Court grants the Motion to Dismiss as it relates to Ms. Tellez’s race discrimination
claim and denies the Motion to Dismiss as it relates to her sex discrimination claim. The Court
also grants the Motion to Amend, in part, to allow Ms. Tellez to assert that she has exhausted her
administrative remedies with respect to her sex discrimination claim. The Motion to Amend as it
relates to the dismissed race discrimination claim is denied as moot.
1. The Charge of Discrimination
Prior to filing this lawsuit, Ms. Tellez completed a Charge of Discrimination (Charge)
with the New Mexico Department of Workforce Solutions, Human Rights Bureau. (Doc. 8) Ex.
B at 1. In the section of the Charge describing the basis for her claims of discrimination, Ms.
Tellez checked boxes for both race and sex. Id. In her narrative, Ms. Tellez described how BBU
denied her transfer to another location even though she knew the company previously had
approved the transfer of “a Black male by the name of Willie” under similar conditions. Id. Ms.
Tellez concluded the Charge by stating, “I believe I was discriminated against due to my race
(White) and my sex (female) in violation of Title VII of the Civil Rights Act of 1964, as
amended.” Id. The Charge was dated April 6, 2015, and signed by Ms. Tellez. Id. Directly
above her signature was the statement, “I declare under penalty of perjury that the above is true
and correct.” Id.
Ms. Tellez signed an Amended Charge (Amended Charge) on June 5, 2015, again under
penalty of perjury. Id. at 2. This time, in addition to checking boxes for race and sex, Ms. Tellez
checked a third box, indicating discrimination based on disability. Id. Ms. Tellez also edited the
narrative section to include facts supporting a claim of discrimination in violation of the
Americans with Disabilities Act (ADA). Id. at 2-3. Ms. Tellez made no changes to her prior
claims of discrimination based on race and sex. Id. The Amended Charge specifically indicated
that Ms. Tellez’s race discrimination claim was due to her White race. Id. at 3.
2. The Complaint
Ms. Tellez filed a Complaint in the Second Judicial District Court on November 30,
2015, alleging that BBU discriminated against her because she is Hispanic and a female. (Doc.
12-1.) at ¶¶ 6 and 20-25. She asserted three Counts against BBU: race discrimination under the
NMHRA (Count I), sex discrimination under the NMHRA (Count II) and retaliation under the
Family and Medical Leave Act (FMLA) (Count III). Id. at ¶¶ 20-30. BBU removed the matter
to this Court on the basis of federal question jurisdiction related to the FMLA claim.
Ms. Tellez alleges in her Complaint that, after working for BBU for a little over a year,
she requested time off to visit her ailing mother in California. (Doc. 12-1) at ¶¶ 5 and 8. Ms.
Tellez was approved for time off and used vacation leave, but was not offered any leave under
the FMLA. Id. at ¶¶ 9-10. Further, BBU warned Ms. Tellez that her job could not be held open
for long and asked if she would be interested in transferring to BBU’s Escondido, California
location. Id. at ¶ 9. Ms. Tellez claims that after she moved to California, she was told that BBU
did not allow transfers, despite the fact that Ms. Tellez was aware of a male employee who had
been allowed to transfer from out of state to BBU’s Albuquerque location. Id. at ¶¶ 13-14.
Following instructions given by BBU’s Human Resources Representative, Ms. Tellez resigned
her position with BBU in Albuquerque and began applying with BBU’s Escondido location. Id.
at ¶¶ 15-16. Ms. Tellez was unable to obtain a position with BBU in Escondido and ultimately
moved back to Albuquerque to find work. Id. at ¶¶ 16-17. She was unemployed for over six
months before accepting a job making $5.00 less an hour than she made at BBU. Id. at ¶ 18.
3. The Proposed Amended Complaint
Ms. Tellez seeks to amend her Complaint to add a sentence stating that she exhausted her
administrative remedies. (Doc. 22) at 2. After filing a Charge with the EEOC on April 6, 2015,
and an Amended Charge on June 5, 2015, Ms. Tellez received an Order of Non-Determination
from the New Mexico Human Rights Bureau on September 2, 2015. Id. Ms. Tellez then filed
her Complaint alleging violations of the NMHRA on November 30, 2015, within the ninety (90)
day time limit required by the NMHRA. Id. Ms. Tellez alleges that allowing the proposed
amendment to her Complaint will resolve the issue of jurisdiction. Id. at 1.
1. Rule 12(b)(1) Standard
“Federal courts are courts of limited jurisdiction.” Henry v. Office of Thrift Supervision,
43 F.3d 507, 511 (10th Cir. 1994) (citations omitted). The court presumes “that a cause lies
outside of [its] limited jurisdiction” until the party asserting jurisdiction proves otherwise.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In cases like this, where a
Rule 12(b)(1) motion “challenges the facts upon which subject matter jurisdiction depends, a
district court may not presume the truthfulness of the complaint’s factual allegations.” Sizova v.
Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (internal quotation
omitted). “A court has wide discretion to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. “Because
at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the
case—there is substantial authority that the trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Campos v. Las Cruces Nursing Ctr., 828
F.Supp.2d 1256, 1265 (D.N.M. 2011) (quoting Williamson v. Tucker, 645 F.2d 404, 412-413
(5th Cir. 1981)).
“Exhaustion of administrative remedies is a prerequisite to suit under the NMHRA, and a
failure to exhaust administrative remedies may mean that the court lacks subject-matter
jurisdiction.” Gerald v. Locksley, 785 F.Supp.2d 1074, 1088 (D.N.M. 2011) (citations omitted).
A district court must dismiss an unexhausted claim for lack of subject matter jurisdiction. Shikles
v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (considering effect of failure
to exhaust under Age Discrimination in Employment Act). “[B]ecause failure to exhaust
administrative remedies is a bar to subject matter jurisdiction, the burden is on the plaintiff as the
party seeking federal jurisdiction to show, by competent evidence, that she did exhaust.”
McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002) (citing United States.
v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1278 (10th Cir. 2001)).
“To exhaust administrative remedies under the NMHRA, a person must: (i) file a
complaint with the NMHRA or the EEOC making sufficient allegations to support the
complaint; and (ii) receive an order of nondetermination from the NMHRA.” Campos, 828
F.Supp.2d at 1267 (emphasis added). “Each discrete incident of [discriminatory or retaliatory]
treatment constitutes its own unlawful employment practice for which administrative remedies
must be exhausted.” Daneshvar v. Graphic Tech., Inc., 237 Fed.Appx. 309, 313 (10th Cir. 2007)
(quotation omitted). The United States Court of Appeals for the Tenth Circuit has stated that the
purposes of exhaustion are “1) to give notice of the alleged violation to the charged party; and 2)
to give the EEOC an opportunity to conciliate the claim.” Jones v. U.P.S., Inc., 502 F.3d 1176,
1185 (10th Cir. 2007) (discrimination claims brought under ADA).
In her EEOC Charge, Ms. Tellez originally identified claims for discrimination on the
basis of race and sex, claiming she was denied a transfer due to her White race and female sex.
(Doc. 8) Ex. B at 1. By filing the Charge describing discrimination on the basis of her female
sex and receiving the Order of Non-Determination from the NMHRA on September 2, 2015, Ms.
Tellez plainly exhausted her administrative remedies for her sex discrimination claim. Id.; (Doc.
22) at 2. Accordingly, BBU’s Motion to Dismiss is denied as it relates to the claim of
discrimination based on sex.
In contrast, the Court finds that Ms. Tellez has not exhausted her administrative remedies
for her race discrimination claim. Ms. Tellez’s Charge and Amended Charge both alleged
discrimination on the basis of her White race. (Doc. 8) Ex. B at 1-2. Ms. Tellez cannot show
that she filed a complaint with the EEOC making “sufficient allegations to support [a]
complaint” for discrimination based on her Hispanic race. Campos, 828 F.Supp.2d at 1267. For
the reasons described herein, BBU’s Motion to Dismiss claim is granted as it relates to Ms.
Tellez’s race discrimination claim.
Prior to filing her Complaint, Ms. Tellez never made any claim of discrimination on the
basis of being Hispanic. In her EEOC Charge, Ms. Tellez originally described discrimination on
the basis of her White race, claiming she was denied a transfer while a black male employee was
permitted to move locations within BBU. (Doc. 8) Ex. B at 1. Even when Ms. Tellez later
amended her Charge to add a claim of discrimination based on disability, she did not make any
changes to her allegation of race discrimination based on her White race. Id. at 2.
Ms. Tellez asserts that the characterization of her race as White on the Charge form was
due to an error by the EEOC and that she should not be penalized for the EEOC’s mistake.
(Doc. 11) at 3. Ms. Tellez provided the Court with an affidavit from the EEOC Area Director
admitting that Ms. Tellez indicated she was Hispanic on the Intake Questionnaire and
acknowledging the EEOC’s error in failing to specify that Ms. Tellez was claiming
discrimination based on her Hispanic race. (Doc. 44) Ex. C. Ms. Tellez further claims that the
EEOC does not make a distinction between White and Hispanic races. (Doc. 44) at 2. She cites
EEOC’s Introduction to Race and Ethnic (Hispanic Origin) Data for the Census 2000 Special
EEO File, to suggest that “a Hispanic can be classified as multiple races.” (Doc. 44) at 3, Ex. A
at 1. Ms. Tellez also claims that she was unaware that she could change or correct the EEOC’s
race description. (Doc. 11) at 3.
Nonetheless, Ms. Tellez alleges that BBU was not prejudiced by the EEOC’s erroneous
description of her race as White because the race box on the Charge form was checked, putting
BBU on notice that she was asserting discrimination based on race. (Doc. 11) at 3. Ms. Tellez
claims that her employer knew she was Hispanic, not White, because she had worked there for
more than a year and her surname is Hispanic. Id. Moreover, Ms. Tellez testified at her
deposition that she felt more comfortable speaking Spanish. (Doc. 44) at 5. Ms. Tellez contends
that all these facts demonstrate that BBU had sufficient notice that she was Hispanic when she
filed her Charge of discrimination. Id. at 6.
BBU argues that it would be discriminatory to require the company to assume Ms.
Tellez’s race based on anything besides her actual claim as set forth in the Charge. (Doc. 8) at 6.
Where both the Charge and Amended Charge indicated that Ms. Tellez alleged discrimination
based on her “White” race, BBU asserts that it reasonably treated her claim as one for reverse
discrimination. (Doc. 43) at 1, 4-5 and 7.1 BBU also asserts that Ms. Tellez never alleged any
discrimination based on Hispanic race prior to filing the Complaint; therefore, the purposes of
exhaustion, i.e. notice and the opportunity to conciliate, are not satisfied. Id. at 7. BBU further
asserts Ms. Tellez cannot now pursue claims not previously raised in the Charge or exhausted in
the administrative process. Id.
In its Supplemental Brief, BBU describes how a prima facie case for reverse discrimination
requires a heightened standard than traditional discrimination. (Doc. 8) at 7, (Doc. 43) at 2, 4-5.
BBU claims this distinction significantly impacted its investigation and analysis of Ms. Tellez’s
claim, as well as its determination that Ms. Tellez would not be able to establish her prima facie
case based on the heightened standard. Id.
The Court agrees that an employer should not be forced to assume the nature of an
employee’s discrimination claims. Indeed, racial identity may not always be ascertained by
appearance or surname. United States v. Esparsen, 930 F.2d 1461, 1466 (10th Cir. 1991).
Moreover, both Ms. Tellez’s Charge and Amended Charge specifically characterized her race as
White, and BBU reasonably relied on those allegations. (Doc. 8) at Ex. A and B. Ms. Tellez has
not provided any evidence that she sufficiently notified to BBU that she was making any claim
of discrimination based on her Hispanic race prior to her Complaint. Accordingly, the Court
rejects the argument that BBU should have known Ms. Tellez’s race based on her time of
employment, Hispanic surname, and preference for speaking Spanish.
As to Ms. Tellez’s claim that the EEOC does not make a distinction between White and
Hispanic races, the Court notes that the very EEOC guide cited by Ms. Tellez actually
contradicts her argument. (Doc. 44) Ex. A at 1. The EEOC guide describes “White” and
“Hispanic or Latino” as separate racial/ethnic categories and specifically notes that “[t]he White
category is defined by the White not Hispanic or Latino category”. Id. Ms. Tellez also claims
that her Complaint for race discrimination on the basis of Hispanic race is reasonably related to
her EEOC Charge. (Doc. 44) at 5. However, a claim based on White race is plainly distinct
from a claim based on Hispanic race, particularly where the legal requirements for establishing
prima facie discrimination are different when a party alleges reverse discrimination. (Doc. 43).
Specifically, the New Mexico Supreme Court utilizes the burden shifting method set
forth in McDonnell Douglas Corp. v. Green, requiring the complainant to “carry the initial
burden…of establishing a prima facie case of racial discrimination.” 411 U.S. 792, 802, 93 S.Ct.
1817, 1824 (1973). “This may be done by showing (i) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for which the employer was seeking applicants; (iii)
that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of complainant's
qualifications.” Id. The Tenth Circuit has articulated and adopted a modified McDonnell
Douglass formulation for establishing a prima facie case of reverse discrimination. Notari v.
Denver Water Dept., 971 F.2d 585, 589 (10th Cir. 1992). “A prima facie case under McDonnell
Douglas raises an inference of discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on consideration of impermissible factors.” Id.
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949 (1978)). The
Court explained “that it is appropriate to adjust the prima facie case to reflect the reverse
discrimination context of a lawsuit because the presumptions in Title VII analysis that are valid
when a plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a
member of an historically favored group.” Id. (internal quotations omitted).2 Because the two
legal standards for discrimination and reverse discrimination are different, BBU’s ability to
accurately evaluate Ms. Tellez’s claim was impacted by the classification of her race as White,
rather than Hispanic.
Even so, Ms. Tellez alleges that she should not be held accountable for the EEOC’s
erroneous mischaracterization of her race as White. (Doc. 11) at 3. The Court finds both the
affidavit from the EEOC Area Director and the Intake Questionnaire largely irrelevant where
there is no evidence that the EEOC actually investigated, or that BBU had notice of, any claim of
The New Mexico Supreme Court has granted certiorari in Garcia v. Valley Pub. Schs., 2016NMCA-034, a case in which the New Mexico Court of Appeals changed the standard for reverse
discrimination cases under the NMHRA, departing from the Tenth Circuit’s heightened standard
from Notari. The Court agrees with BBU that because the case was decided after Plaintiff’s
Complaint was filed, it did not impact BBU’s analysis. Likewise, it has no bearing on the
Court’s reasoning herein.
discrimination based on Ms. Tellez’s Hispanic race. “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.” MacKenzie v. City and Cty. of
Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). While a court will “liberally construe” a party’s
EEOC charge, “the charge must contain facts concerning the discriminatory and retaliatory
actions underlying each claim.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).
Although Ms. Tellez checked the box representing that she is Hispanic on the Intake
Questionnaire, she failed to clarify or correct the basis for her race claim when she reviewed and
signed the Charge. (Doc. 8) Ex. B at 1-2. There is no evidence that BBU had any reason to
believe Ms. Tellez was asserting a claim of discrimination on the basis of Hispanic race where
the Charge specifically stated otherwise. “A plaintiff cannot be allowed to transfer the
allegations mentioned only in the questionnaire to the charge itself. Not only would this be
circumventing the role of the Commission, but it would be prejudicial to the employer.” Green
v. JP Morgan Chase Bank Nat. Ass’n, 501 Fed.Appx. 727, 731 (10th Cir. 2012) (quotation
omitted). “[P]ermitting Title VII plaintiffs to routinely reach back to the contents of intake
questionnaires to expand the scope of a subsequent lawsuit would, if not eviscerate, then at the
very least significantly undermine the policies underlying the exhaustion requirement Congress
decided to impose upon Title VII plaintiffs.” Id. at 731-732 (quotation omitted). “Only the
charge is sent to the employer, and therefore only the charge can affect the process of
conciliation.” Atkins v. Sw. Bell Tel. Co., 137 Fed.Appx. 115, 118 (10th Cir. 2005) (internal
quotation omitted) (determining employee failed to adequately exhaust administrative remedies
for retaliation claim and therefore court lacked jurisdiction to hear claim where Plaintiff raised
retaliation claim in intake questionnaire and affidavit but not in formal charge with EEOC).
Finally, while Ms. Tellez claims that she did not know that she could correct her Charge,
BBU correctly points out that Ms. Tellez did, in fact, amend her Charge. (Doc. 11) at 3, (Doc.
13) at 2. Ms. Tellez also reviewed and signed both the Charge and the Amended charge under
penalty of perjury. (Doc. 8) at Ex. A and B. At no point prior to the filing of her Complaint did
Ms. Tellez allege any discrimination based on her Hispanic race.
There is nothing in the Charge or other documentation to indicate EEOC investigated
claims based on Hispanic race or that BBU had any notice of such claims. Therefore, Ms. Tellez
failed to exhaust her administrative remedies for a claim of discrimination based on her Hispanic
race and BBU’s Motion to Dismiss the race discrimination claim is properly granted.
2. The Motion to Amend
“[A] party may amend its pleadings only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). “Although Fed. R. Civ. P. 15(a) provides that leave to
amend shall be given freely, the district court may deny leave to amend where amendment would
be futile.” Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859
(10th Cir. 1999). A proposed amendment is futile if it fails to cure the deficiencies of the
complaint. Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 559 (10th Cir. 1997).
In her proposed amended Complaint, Ms. Tellez seeks to add a sentence stating she
exhausted her administrative remedies. (Doc. 22) at 2 and Ex. A at ¶ 4. Pursuant to the Court’s
previous analysis that Ms. Tellez failed to exhaust her administrative remedies for the claim of
discrimination based on her Hispanic race, amendment of the Complaint as requested would be
futile. Therefore, the Motion to Amend is denied as to the race discrimination claim. The Court
finds that where Ms. Tellez properly exhausted her administrative remedies as to the sex
discrimination claim, the Motion to Amend is properly granted as to that claim.
IT IS ORDERED that
1. the Motion to Dismiss (Doc. 7) is granted, in part, and denied, in part;
2. the Motion to Amend (Doc. 22) is granted, in part, and denied, in part;
3. Plaintiff’s discrimination claim based on Hispanic race is dismissed without
4. Plaintiff may amend her Complaint to establish that she has exhausted her
administrative remedies as to the sex discrimination claim.
UNITED STATES DISTRICT JUDGE
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