Kennicott et al v. Sandia Corporation
Filing
113
MEMORANDUM OPINION by District Judge James O. Browning granting Defendant's Motion to Dismiss State Law Claims 14 (hj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA A. KENNICOTT; LISA A. GARCIA
and SUE C. PHELPS, on behalf of
themselves and a class of those similarly
situated,
Plaintiffs,
vs.
No. CIV 17-0188 JB/GJF
SANDIA CORPORATION,
Defendant.
MEMORANDUM OPINION1
THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss State
Law Claims, filed March 17, 2017 (Doc. 14)(“Motion”). The Court held hearings on June 12,
2017 and January 19, 2018. The primary issues are: (i) whether the federal enclave doctrine
applies to state-law employment discrimination claims if the employer makes allegedly
discriminatory decisions off the enclave; (ii) whether the federal enclave doctrine bars Plaintiffs
Lisa A. Kennicott’s, Lisa A. Garcia’s, and Sue Phelps’ claims against Defendant Sandia
Corporation (“Sandia Labs”) under the New Mexico Human Rights Act, N.M. Stat. Ann
§ 28-1-7(A) (“NMHRA”), and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann.
§ 28-23-3(A) (“NMFPWA”); and (iii) whether Sandia Labs made the employment decisions
underlying those claims on the Kirtland Air Force Base. The Court concludes that: (i) the federal
enclave doctrine applies to state employment discrimination claims when a plaintiff works on a
1
The Court previously entered an Order that granted the Defendant’s Motion to Dismiss
State Law Claims, filed March 17, 2017 (Doc. 14). See Order, filed March 31, 2018 (Doc. 106).
In that Order, the Court stated that it would “issue a Memorandum Opinion at a later date more
fully detailing its rationale for this decision.” Order at 1 n.1. This Memorandum Opinion is the
promised opinion and details the Court’s rationale for the previous Order.
federal enclave, no matter where the employer makes the decisions underlying those claims;
(ii) the federal enclave doctrine bars the Plaintiffs’ NMHRA and NMFPWA claims, because the
Plaintiffs worked on the Kirtland Air Force Base, and those state statutes do not apply in that
federal enclave2; and (iii) Sandia Labs has not established that it made the employment decisions
underlying the Plaintiffs’ claims on Kirtland Air Force Base, so if the Court were to
decide -- which it does not -- that the federal enclave doctrine applies only when the challenged
employment decisions are made on an enclave, then the Plaintiffs’ NMHRA and NMFPWA
would survive the Motion.
Accordingly, the Court grants the Motion and dismisses the
Plaintiffs’ NMHRA and NMFPWA claims with prejudice.3
FACTUAL BACKGROUND
In the Motion, Sandia Labs moves the Court to dismiss the Plaintiffs’ NMHRA and
NMFPWA claims for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). When deciding rule 12(b)(6) motions, the Court generally may not consider “matters
2
The Court also concludes that the federal enclave doctrine would apply when an
employer makes discriminatory employment decisions on a federal enclave even if those
decisions impact individuals who do not work on the enclave. See infra at n.22.
3
The Court dismisses the Plaintiffs’ state claims with prejudice, because, when the federal
enclave doctrine applies, “only federal law applies to the claims at issue.” Hallak v. L3
Commc’ns Corp., No. CV 10-00794 R (JCX), 2010 WL 11518537, at *1 (C.D. Cal. Apr. 27,
2010)(Real, J.)(“Plaintiffs’ state law claims fail to state a claim upon which relief can be granted
and, therefore, the Court dismisses those claims with prejudice, because only federal law applies
to the claims at issue.”), aff’d, 490 F. App’x 2 (9th Cir. 2012). Because federal law applies to
the Plaintiffs’ employment discrimination claims against Sandia Labs, the Plaintiffs cannot state
a NMHRA or NMFPWA claim for which the Court can soundly grant relief. See also Shurow v.
Gino Morena Enterprises, LLC, No. 3:16-CV-02844, 2017 WL 1550162, at *4 (S.D. Cal. May 1,
2017)(Lorenz, J.)(dismissing with prejudice state claims that the federal enclave doctrine bars);
Smelser v. Sandia Corp., No. CIV 17-388, 2018 WL 1627214, at *9 (D.N.M. Mar. 30, 2018)
(Yarbrough, M.J.)(same); Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1148–49 (S.D. Cal.
2007)(Huff, J)(same); Mersnick v. USProtect Corp., No. C-06-03993 RMW, 2007 WL 2669816,
at *4 (N.D. Cal. Sept. 7, 2007)(Whyte, J)(not reported)(same).
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outside the pleadings.” Fed. R. Civ. P. 12(d). The parties have also done some discovery,
however, and the parties have consented to the Court converting the Motion into one for
summary judgment under rule 56 of the Federal Rules of Civil Procedure. Thus, the Court will
give two factual sections.
First, it will explain what the Complaint alleges as relevant
background of the case. Second, it will set out the undisputed facts to help it determine whether
there is a genuine dispute as to a material fact.
1.
The Complaint’s Facts.
Sandia Labs is a “federally-funded research and development contractor operating under
contract for the Department of Energy.” Class Action Complaint ¶ 2, at 1-2, filed February 7,
2017 (Doc. 1)(“Complaint”). Kennicott worked for Sandia Labs as a member of Technical Staff
from January, 1995, to February, 1998. See Complaint ¶ 50, at 11. She returned to Sandia Labs
in 1999 as a Senior Member of Technical Staff, and, in 2005, was promoted to Principal Member
of Technical Staff. See Complaint ¶ 50, at 11. She has a master’s degree in computer science
from the University of New Mexico and a master’s degree from Harvard University. See
Complaint ¶ 51, at 11.
Garcia started working at Sandia Labs in 1988 as a custodian, and advanced through the
mailroom, the payment processing department, and the Radiation Protection department’s
administrative section. See Complaint ¶ 64, at 14. Eventually, she worked as a Health Physics
Technologist in Dosimetry4 within Radiation Protection, was promoted to Senior Health Physics
Technologist in Dosimetry, made a “lateral move” to Electromechanical Senior Technologist in
Secure Transportation, and then made another lateral move to Electronics Senior Technologist in
4
“Dosimetry is the study, measurement, method of measurement, or instrument of
measurement of radiation dose.” Radiation Safety Division, United States Department of
Agriculture, Dosimetry, https://www.dm.usda.gov/ohsec/rsd/dosimetry.htm.
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Satellites. Complaint ¶ 64, at 14. In 2008, she was promoted to Principal Technologist in
Satellites, and, a year later, made a lateral move to Principal Technologist in Telemetry,5 where
she still works. See Complaint ¶ 64, at 14. Garcia has a bachelor’s degree in business from the
College of Santa Fe and a Certificate in Electronics from what was then known as the Technical
Vocation Institute of New Mexico.6 See Complaint ¶ 65, at 15.
Phelps began working at Sandia Labs in May, 1989, as a member of Technical Staff,
Scientific Computing, and, in 1997, was promoted to Senior Member of Technical Staff,
Scientific Computing. See Complaint ¶ 71, at 16. Since then, she has made several lateral
movies, first to Senior Member of Technical Staff, High Performance Computing Research, then
to “Senior Member of Technical Staff within the division of Defense Systems and department of
Missile Defense,” and then to “Senior Member of Technical Staff within the division of Defense
Systems and department of Phenomenology & Sensor Sciences.” Complaint ¶ 71, at 16. In
2013, she was promoted to Principal Member of Technical Staff in the Division of Defense
Systems and Department of Phenomenology & Sensor Sciences, before retiring in 2016. See
Complaint ¶ 71, at 16. Phelps has a B.S. in Mathematics from Purdue University, a master’s
degree in computer science from the University of Illinois, Champaign-Urbana, and a Ph.D. in
computer science from the New Mexico Institute of Mining and Technology. See Complaint
¶ 72, at 16.
5
Telemetry is “an automated communications process by which measurements and other
data are collected at remote or inaccessible points and transmitted to receiving equipment for
monitoring.” Telemetry, https://en.wikipedia.org/wiki/Telemetry.
6
The Technical Vocation Institute of New Mexico is now known as Central New Mexico
Community College. See Central New Mexico Community College, https://en.wikipedia.
org/wiki/Central_New_Mexico_Community_College.
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2.
The Undisputed Facts.
Rule 12(d) of the Federal Rules of Civil Procedure states that, if a court considers matters
outside the pleadings on a rule 12(b)(6) motion to dismiss, it must convert the motion to one for
summary judgment under rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
Rule 12(d). In this Memorandum Opinion, the Court will consider matters outside the pleadings
when determining whether Sandia Labs made its employment decisions on Kirtland Air Force
Base, so it will convert the Motion into a rule 56 motion for summary judgment regarding that
issue.7 Accordingly, the Court presents these undisputed of facts based on the parties’ additional
pleadings and evidence.8
Sandia
Labs’
Talent
Acquisition
group -- also
called
Talent
Acquisition
&
Strategies -- “partner[s] with the compensation department as well as the hiring manager to set
an appropriate salary based on experience and market.”9
Deposition of Yvonne Baros at
7
In the January 18, 2018 hearing, see Draft Hearing Transcript (taken January 19, 2018)
(“2018 Tr.”), the parties orally consented to the Court converting the Motion into a rule 56
motion for summary judgment. See 2018 Tr. at 21:2-4 (Shaver)(“We can consent to the idea of
submitting this as a Rule 56 decision.”); id. at 22:16-17 (Gordon)(“I do think it’s appropriate, if
Your Honor chooses to, to convert this to a Rule 56 motion.”).
8
Because Sandia Labs filed a motion to dismiss, it did not comply with D.N.M.LR-Civ
56.1(b) (“The [movant’s] Memorandum must set out a concise statement of all the material facts
as to which the movant contends no genuine issue exists.”), nor did the Plaintiffs, in their
Response, comply with D.N.M.LR-Civ 56.1(b) (“The Response must contain a concise statement
of the material facts cited by the movant as to which the non-movant contends a genuine issue
does exist.”). Thus, the Court is somewhat hindered by not having the numbered paragraphs
listing the material facts to determine whether there is a genuine issue of material fact. The
Court has to determine the undisputed facts the old-fashioned way -- by reading all the evidence
in the record and making a commonsense determination without the benefit of targeted
pleadings.
9
The Plaintiffs assert that the Talent Acquisition group “set[s] and approv[es] starting
salaries for all new employees.” Supp. Submission at 3. Sandia Labs responds that Baros
testified that the Talent Acquisition group performs those roles in collaboration with other
groups. See Supp. Response at 3. The Baros Depo. clearly indicates that the Talent Acquisition
group is not alone in setting and approving starting salaries. See Baros Depo. at 216:25-217:3
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216:8-12, (taken October 5, 2017)(Baros), filed October 24, 2017 (Doc. 61-2)(“Baros Depo.”).10
Talent Acquisition is located off the Kirtland Air Force Base. See Supp. Submission at 3-4;
Human Resources Organization Chart at 10, filed October 24, 2017 (Doc. 61-1)(“HR Chart”)
(stating that Talent Acquisition is located at “IPOC”). 11 From February, 2012, to February 2013,
Sandia Labs’ Talent Management & Employee Engagement organization was located in Tech
Area 1 on the Kirtland Air Force Base. See HR Chart at 1-5. From March, 2013, to June, 2014,
the Talent Management & Employee Engagement organization was located off the Kirtland Air
Force Base, at the Innovation Parkway Office Center (“IPOC”). HR Chart at 5-10. From July,
2014, to the present, the Talent Management & Employee Engagement organization was again
located in Tech Area 1. See HR Chart at 10-12.
Talent Management & Employee Engagement trains Sandia Labs’ employees on policies
regarding antidiscrimination and investigating discrimination complaints. See Supp. Submission
at 7.; Baros Depo. at 207:5-21, 208:7-11 (Levin-Gesundheit, Baros). From 2014 to 2015, a
“subdivision of HR known simply as Human Resources” (“Human Resources Group”) was
located off the Kirtland Air Force Base. Supp. Submission at 3-4; HR Chart at 8-12 (indicating
that the Human Resources Group was located at IPOC). Talent Management & Development
and Talent Acquisition report to the Human Resources Group.
See Division 3000 HR &
(Baros)(“It is their function to partner with the compensation department as well as the hiring
manager to set an appropriate salary based on experience and market.”).
10
The Plaintiffs “requested a Rule 30(b)(6) deposition regarding Sandia’s corporate and
HR organizational structure.” Supp. Submission at 2. On October 5, 2017, the Plaintiffs
deposed Yvonne Baros, Sandia Labs’ “Manager, Business Strategy and Early Career
Foundation.” Supp. Submission at 2.
11
According to the Plaintiffs, “IPOC” is not on Kirtland Air Force Base. Supp.
Submission at 3. See Innovation Parkway Office Center (IPOC) webpage, filed March 31, 2017
(Doc. 18-4)(listing the IPOC’s address as 1611 Innovation Pkwy. SE, Albuquerque, New
Mexico, 87123).
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Communications Organization Chart at 1, filed October 24, 2017 (Doc. 61-3)(“HR. Org. Chart”);
Baros Depo. at 199:8-11 (Levin-Gesundheit, Baros)(establishing that the HR Org. Chart’s
“vertical lines . . . indicate reporting relationships”).
HR & Communications is located on the Kirtland Air Force Base. See HR Chart at 1-20
(indicating that, for each month between January, 2012, to April, 2017, HR & Communications
is listed as being on the Kirtland Air Force Base). In May, 2017, HR & Communications Vice
President’s location is not listed on the HR Chart. See HR Chart at 21.12 In June, 2017, a HR &
Communications Director was located at the IPOC.
See HR Chart at 21.13
HR &
Communications is listed two other times for that month, and both of those entries indicate that
they were on the Kirtland Air Force Base. See HR Chart at 21. The Vice President of HR &
Communications is tasked with final approval of “compensation policy,” Baros Depo. at
104:23-105:1 (Baros), and “antidiscrimination policies,” Baros Depo. at 107:20-23 (Baros), and
is responsible “for the promotion, compensation, performance evaluations, antidiscrimination
polices, including investigation of employee complaints,” Baros Depo. at 108:2-11 (Baros).
The Compensation Group is located on Kirtland Air Force Base. See Supp. Response at
2; HR Chart at 1-20.
The Compensation Group “conducts gender-based disparate impact
analysis of performance evaluation scores.” Supp. Submission at 6; Baros Depo. at 85:14-86:7
(Levin-Gesundheit, Baros).
The Compensation Group “administer[s]” Sandia Labs’
performance evaluation process.
Bars Depo. at 53:11-3 (Baros)(“The function of the
12
HR & Communications is listed two other times for May, 2017, and both of those
entries indicate that they were on the Kirtland Air Force Base. See HR Chart at 21.
13
Sandia Labs asserts that this June, 2017, entry “pertain[s] to a single director who was
transitioning from the Communications center to another position outside of the HR &
Communications division at that time.” Supp. Response at 3. In any event, HR &
Communications is listed two other times for that month, and both of those entries indicate that
they were on the Kirtland Air Force Base. See HR Chart at 21.
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compensation department was to . . . administer compensation job evaluation for the labs”); id. at
53:4-9 (Baros)(agreeing that the Compensation Group “has a role in administering the
performance evaluation system”).
“Administering” a policy includes “draft[ing]” and/or
“crafting” the policy. Baros Depo. at 220:16-25 (Levin-Gesundheit, Baros)(stating that those
who administrate policies “are the drafters of the policy,” and that they are “the ones that are
responsible for crafting the policy and overseeing [it] when there [are] questions”).14
The Vice President of HR worked on Tech Area 1 at Kirtland Air Force Base during all
relevant time periods. See Supp. Response at 5; HR Chart at 1-20 (indicating that the HR &
Communications’ “Vice Pres” worked at “Tech Area 1,” which is on the Kirtland Air Force
Base).15
The Vice President of HR has “final approval over compensation, performance
evaluation, and promoting policies.” Supp. Response at 6. Baros Dep. at 104:23-105:1 (Baros)
(stating that HR & Communications’ Vice President has final approval of Sandia Labs’
compensation policy); id. 105:2-10 (Levin-Gesundheit, Baros)(establishing that HR &
14
The Plaintiffs assert that the Compensation Group “creat[es]” Sandia Labs’ promotion
policy, Supp. Submission at 6, and “creat[es]” the performance evaluation policy, Supp.
Submission at 5. Sandia Labs responds that the record to which the Plaintiffs cite for those
propositions do not indicate that the Compensation Group creates those policies. See Supp.
Response at 2. The Plaintiffs reply that the record to which it cites for that proposition states that
the Compensation Group administers the performance evaluation policy, and, elsewhere in the
record, Baros states generally that “administering” means “crafting” or “draft[ing]” a policy.
Supp. Reply at 3 (citing Baros Depo. at 220:22-25 (Levin-Gesundheit, Baros)). Although Baros
does not state specifically that the Compensation Group crafts, drafts, or otherwise creates the
performance evaluation policy, it is clear that Mr. Michael Ian Levin-Gesundheit, the Plaintiffs’
attorney, asks Baros what she means generally when she says that a group “administers” a
policy. Baros Depo. at 220:18-21 (Levin-Gesundheit, Baros)(“You used the term administer
before, not that terribly long ago. You said that compensation administers the compensation
policy, for example. So what do you mean by ‘administer’?”). Nothing in Baros’ deposition
testimony suggests that her general characterization for “administering” a policy does not apply
to the Compensation Group’s administration of Sandia Labs’ employee performance evaluation
policies.
15
The HR Chart’s entry for May, 2017, however, does not list any location for H&R
Communications’ Vice President. See HR Chart at 21; supra at 4.
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Communications’ Vice President is responsible for Sandia Labs’ performance evaluation policy);
id. at 105:25-106:2-3 (Levin-Gesundheit, Baros)(establishing that HR & Communications’ Vice
President has final approval of Sandia Labs’ promotions policy).
From January, 2012, to August, 2015, the Sandia Labs’ Equal Employment
Opportunity/Affirmative Action (“EEO/AA”) organization was located in Tech Area 1. See HR
Chart from 1-14. From September, 2015, to the present, the EEO/AA has been located off-base.
See Supp. Submission at 8; HR Chart at 14-22.16
The EEO/AA addresses employee
discrimination complaints and is responsible for “complying with the antidiscrimination
regulations of the Office of Federal Contract Compliance Programs, including auditing for
systemic discrimination.” Supp. Submission at 8. See Baros Depo. at 55:21-56:1; id. at 57:3-7;
id. at 219:21-24. The EEO/AA organization reports to Sandia Labs’ Diversity & Inclusion
organization. See Supp. Submission at 8; Baros Depo. at 134:14-16. The Diversity & Inclusion
organization is responsible for diversity training across Sandia. See Supp. Submission at 8;
Baros Depo. at 67:2-4. From January, 2012, to April, 2015, the Diversity, Inclusion & EEO/AA
organization was located on Kirtland Air Force Base. See HR Chart at 1-13. From May, 2015,
to August, 2015, Diversity and Inclusion was located on Kirtland Air Force Base. See HR Chart
at 13-14. From September, 2015, to October, 2016, Diversity and Inclusion was located off the
Kirtland Air Force Base. See HR Chart at 14-19. From November, 2016, to present, Diversity
and Inclusion returned to Kirtland Air Force Base. See HR Chart at 19-21.
PROCEDURAL BACKGROUND
In the Complaint, the Plaintiffs allege that Sandia Labs violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), the NMHRA, and the NMFPWA.
16
A group called “EEO/AA, EMP Labor Relations & HRBP,” however, has remained on
Kirtland Air Force Base. HR Chart at 14-22.
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Complaint ¶ 1, at 1. Specifically, they allege that Sandia Labs discriminates against female
employees in performance evaluations, compensation, and promotions. See Complaint ¶ 23, at
5.
1.
The Motion to Dismiss.
In its Motion, Sandia Labs contends that the federal enclave doctrine bars the Plaintiffs’
state-law claims.
See Motion at 2.
According to Sandia Labs, Congress has “exclusive
authority” over federal enclaves, including Kirtland Air Force Base, where Sandia Labs is
located. Motion at 3. Sandia Labs notes that neither the NMHRA nor the NMFPWA existed
when Kirtland Air Force Base was established in 1954. See Motion at 3-4. Accordingly, Sandia
Labs contends, the Court should dismiss the Plaintiffs’ NMHRA and NMFPWA claims, because
those statutes do not apply on the Kirtland Air Force Base. See Motion at 4-5.
2.
The Response.
The Plaintiffs respond to the Motion. See Plaintiffs’ Opposition to Motion to Dismiss
State Law Claims and Motion to Conduct Jurisdictional Discovery, filed March 31, 2017
(Doc. 18)(“Response”). In the Response, the Plaintiffs assert that “Sandia is not a federal
enclave for the classwide, common policies at issue.” Response at 1. The Plaintiffs contend that
federal enclave’s application depends on “the locus of relevant decisions-making,” i.e., “where
the employment policies are practices were made.” Response at 1. See id. at 5-6. The Plaintiffs
argue that, “[a]t this early stage, Plaintiffs understand that at least some of the female employees
covered by this lawsuit worked outside of federal land, and that Sandia substantially conducted
its common human resources functions off-base.” Response at 2. See id. at 6-7. The Plaintiffs
move for jurisdictional discovery. See Response at 4-5; id. at 7-8.
3.
The Reply.
Sandia Labs filed a reply. See Reply in Support of Defendant’s Motion to Dismiss State
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Law Claims, filed April 14, 2017 (Doc. 20)(“Reply”). Sandia Labs argues that the Plaintiffs’
Response allegations -- that Sandia Labs set its discriminatory policies off of Kirtland Air Force
Base -- is inconsistent with the Complaint’s contention that relevant actions occurred at Sandia
Labs. See Reply at 3-4. Sandia Labs contends that the Court cannot soundly consider these new
alleged facts in a rule 12(b)(6) motion to dismiss. See Reply at 4-5 (“At this stage . . . the only
question is whether Plaintiffs’ state law claims are barred by the federal enclave doctrine based
on the allegations in the one and only complaint that has been filed in this lawsuit.”).
4.
The First Hearing.
The Court held a hearing on June 12, 2017. See Transcript (taken June 12, 2017), filed
August 8, 2017 (Doc. 50)(“2017 Tr.”). The Court stated that it is “very likely” that the federal
enclave doctrine bars the Plaintiffs’ state law claims. See 2017 Tr. at 6:8-10 (Court). Sandia
Labs stated that, at this point, “it makes more sense to us to dismiss the state law claims, let them
ask whatever questions they want about jurisdictional issues in the meantime, and then just see
where it takes us.” 2017 Tr. at 6:20-24 (Gordon). The Plaintiffs shared their concern that
if you were to dismiss the state claims, and then, downstream, reinstate them,
there might be some question as to when the state class period starts. And . . . if
the state class period would only start at the time that the claims were added to the
amended complaint, obviously, we would be very concerned about the prejudice
to the class.
2017 Tr. at 9:5-22 (Dermody). The Court stated that, although it was inclined to grant the
Motion, it would not enter an order immediately. See 2017 Tr. at 10:2-6 (Court). The Court
stated that the Plaintiffs may provide the Court with additional material or information it might
secure in discovery relating to the federal enclave question. See 2017 Tr. at 10:8-19 (Court).
5.
The Plaintiffs’ Supplemental Submission.
After conducting discovery, the Plaintiffs filed a Supplemental Submission in Support of
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss State Law Claims, filed October 24,
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2017 (Doc. 60)(“Supp. Submission”).
The Plaintiffs allege that, based on depositions and
discovered documents, Sandia Labs’ “decision-making occurs within the state of New Mexico
but outside the Kirtland Air Force Base with respect to the administration and development of
core human resources policies and corporate practices at issue in this lawsuit.”
Supp.
Submission at 2.
6.
Response to the Supplemental Submission.
Sandia Labs filed its Response to Plaintiffs’ Supplemental Submission in Support of
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss State Law Claims, filed November 7,
2017 (Doc. 65)(“Supp. Response”). Sandia Labs contends that the Plaintiffs improperly focus on
where policies are “administered” when the critical issue is “where the relevant decision-making
occurred.” Supp. Response at 1. According to Sandia Labs, the Plaintiffs, in the Complaint,
challenge decisions that were each made on the federal enclave. See Supp. Response at 4-5.
Sandia Labs also contends that the Plaintiffs “misrepresent and misconstrue the evidence in the
record” in various respects. Supp. Response at 1-2. Sandia Labs also states that, to the extent
that the Plaintiffs continue to challenge policies created in the federal enclave, there is nothing in
the record indicating that the Court should not dismiss the state claims. See Supp. Response at
6-7.
7.
Supplemental Submission Reply.
The Plaintiffs replied to the Supp. Response. See Plaintiffs’ Reply to Sandia’s Response
to Plaintiffs’ Supplemental Submission in Support of Plaintiffs’ Opposition to Sandia’s Motion
to Dismiss State Law Claims, filed December 1, 2017 (Doc. 70)(“Supp. Reply”). The Plaintiffs
state that “it cannot be disputed that the core HR policies challenged in this action have been
administered off-base during virtually the entire discovery period (since at least 2013).” Supp.
Reply at 1. The Plaintiffs contend that, in their Supp. Submission, they do not misrepresent the
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discovery evidence. See Supp. Reply at 2-5. They also contend that the location where the
named Plaintiffs’ and the proposed class’ workplaces is irrelevant to their challenge to Sandia
Labs’ “common policies.” Supp. Reply at 5.
8.
The Second Hearing.
The Court held another hearing on January 19, 2018. See Hearing Transcript (taken
January 19, 2018)(Doc. 78)(“2018 Tr.”). The Court began by expressing surprise that Sandia
Labs would agree with the Plaintiffs that the standard -- expressed in Camargo v. Gino Morena
Enterprises, L.L.C., No. EP-10-CV-242-KC, 2010 WL 3516186, at *2 (W.D. Tex. Sept. 2, 2010)
(Cardone, J.)(“Camargo”) -- that the federal enclave doctrine applies to state claims when the
locus of decisionmaking is on the federal enclave. See 2018 Tr. at 3:15-4:6 (Court). The Court
stated that it would have imagined that the standard
would be where the damage [or] injury occurred, and where the employees
worked, in an employment case. So it would be much like analogizing it to a
choice of law, in that you don’t look to necessarily where the decision was made;
you would look at where the injury occurred. And so, particularly in New
Mexico, being a Restatement 1 situation, you would look at where the injury
occurred. And it seemed to me in an employment case it would be where the
employee is housed. And so that would be what would govern is where does the
employee work? Where did the injury occur?
2018 Tr. at 4:7-20 (Court).
Sandia Labs began arguing for its Motion, stating that there are three reasons why the
federal enclave doctrine “applies here to preempt the state law claims.” 2018 Tr. at 6:21-23
(Gordon). The first reason that Sandia Labs asserted is that the three named Plaintiffs worked on
the Kirtland Air Force Base, and they challenge decisions made on the Kirtland Air Force Base.
See 2018 Tr. at 6:24-7:2 (Gordon).
Second, Sandia Labs asserted that its promotion,
compensation, and evaluation policies “originated from inside Kirtland Air Force Base.” 2018
Tr. at 7:7:9-14 (Gordon). Sandia Labs contends that “either way you look at it, the locus of the
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decisionmaking is inside Kirtland Air Force Base, and it’s the locus of decisionmaking that
matters.” 2018 Tr. at 7:15-17 (Gordon). Sandia Labs explained that it agreed with the Camargo
standard, because Sandia Labs wished to find common ground with the Plaintiffs and, under
Camargo, the facts supported Sandia’s position. See 2018 Tr. at 8:3-7 (Gordon). Sandia Labs
asserted that its human resources’ Vice President approves the challenged policies and that the
vice-president, during the relevant time period, worked “inside Tech Area 1 inside Kirtland Air
Force Base.” 2018 Tr. at 8:8-14 (Gordon). Sandia Labs recognized that there are human
resources employees who work off of Kirtland Air Force Base, but they are not “the
decisionmakers either with respect to the three named plaintiffs or with respect to issuing the
policies that are at issue.” 2018 Tr. at 8:15-21 (Gordon). Sandia Labs illustrated its argument
with an example:
You could be a mid-level manager in human resources and draft a policy in an
airplane flying over Kansas, or [drafting a policy] on the back of a napkin at the
Frontier on Central.[17] That Policy isn’t issued or finally approved until it comes
inside Kirtland Air Force Base, and goes to the desk of the vice-president of
human resources, and gets vetted and reviewed and revised, and then it’s
approved. And there is no question here that these policies they’re trying to
challenge were finally approved by the vice-president of human resources from
inside Kirtland Air Force Base.
2018 Tr. at 8:22-9:5 (Gordon). Sandia Labs argued that, even if the challenged policies are
enforced outside of Kirtland Air Force Base, “the people who apply . . . or administer these
policies [are not] decisionmakers, nor does it change the locus of the decisionmaking.” 2018 Tr.
at 9:10-19 (Gordon).
The Court asked why it should look to federal common law in interpreting whether the
17
The Frontier Restaurant is located on Albuquerque’s Central Avenue near the
University of New Mexico, and is known for its New Mexican food and John Wayne portraits
adoring the walls. See Zora O’Neill, 36 Hours in Albuquerque, N.Y. Times, Oct. 20, 2011,
https://www.nytimes.com/2011/10/23/travel/36-hours-in-albuquerque.html.
- 14 -
federal enclave doctrine applies to state claims. See 2018 Tr. at 11:24-12:2 (Court). Sandia
Labs replied that the federal enclave doctrine is “procedural law that says: if the state cause of
action -- whatever it is, statutory [or] common law -- if it was created after the federal enclave
was created, then the federal enclave doctrine preempts them.” 2018 Tr. at 12:3-13 (Gordon).
The Plaintiffs argued that, on a rule 12 motion, the Court must view all facts in the light
most favorable to the plaintiff, and, in this case, they have alleged facts that “the locus of the
relevant decisionmaking off base [sufficient] to survive a motion to dismiss.” 2018 Tr. at
16:9-15 (Shaver).
The Plaintiffs contended that there is a factual dispute where the Vice
President of human resources worked, because a chart provided by Sandia leaves blank an entry
describing where the vice-president of human resources worked in 2017. See 2018 Tr. at
16:16-17:3 (Shaver). Moreover, the Plaintiffs contended that there is “no dispute” that the
human resources and communications division is listed as being not on the Kirtland Air Force
Base. 2018 Tr. at 17:4-11 (Shaver).
The Court asked the Plaintiffs if they would consent to the Court converting the motion
to a motion for summary judgment, if the Court ultimately decides doing so is necessary. See
2018 Tr. at 20:8-11 (Court). The Plaintiffs said that they would consent to the Court converting
the motion to one for summary judgment. See 2018 Tr. at 20:12-16 (Court, Shaver). Sandia
Labs also said that it would consent. See 2018 Tr. at 22:16-17 (Sandia).
9.
Post-Hearing Supplemental Brief.
Sandia Labs submitted Sandia’s Supplemental Post-Hearing Brief in Support of Sandia’s
Motion to Dismiss State Law Claims, filed January 31, 2018 (Doc. 83)(“Post-Hearing Brief”).
Sandia Labs states that the Post-Hearing Brief “clarifies Sandia’s position regarding how the
federal enclave doctrine should be applied in this case.” Post-Hearing Brief at 1. Sandia Labs
asserts that it “continues to maintain that the determining factor for applying the federal enclave
- 15 -
doctrine is the place where a plaintiff worked because that is the place where the alleged injury
occurred.”
Post-Hearing Brief at 2.
According to Sandia Labs, its arguments relating to
Camargo “were simply intended to convey that even if Camargo set forth the applicable
standard, dismissal is still appropriate because all relevant decisions occurred on [the Kirtland
Air Force Base].” Post-Hearing Brief at 2. Sandia contends that the United States Court of
Appeals for the Tenth Circuit and the Court have determined that “state law claims are precluded
when the plaintiff worked on [the Kirtland Air Force Base].” Post-Hearing Brief at 3 (citing
Benavidez v. Sandia National Laboratories, 212 F. Supp. 3d 1039, 1094-97 (D.N.M. 2016)
(Browning, J.)(“Benavidez”); Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1236 (10th
Cir. 2012)(Tymkovich, J); Perkins v. Chugach Management Servs., 2015 WL 13666993
(D.N.M. Feb. 18, 2015)(Herrera, J)). Sandia contends that the federal enclave doctrine bars the
state claims whether the Court looks to the place where a plaintiff worked or where the decisions
are made. See Post-Hearing Brief at 4-5.
10.
The Plaintiffs’ Post-Hearing Supplemental Brief Response.
The Plaintiffs respond to the Post-Hearing Brief. See Plaintiffs’ Response to Sandia’s
Supplemental Post-Hearing Brief Regarding Sandia’s Motion to Dismiss State Law Claims, filed
February 15, 2018 (Doc. 84)(“Post-Hearing Response”). The Plaintiffs contend that the Court’s
decision in Benavidez is consistent with Camargo, “and both cases support denial of Sandia’s
motion.” Post-Hearing Response at 1. According to the Plaintiffs, “an employee’s job site is not
determinative of where the employment discrimination claim arises.” Post-Hearing Response at
2. Moreover, the Plaintiffs contend that the Supreme Court of New Mexico instructs courts to
look at Title VII federal law for guidance on where a discrimination claim arises, see PostHearing Response at 2 (citing Garcia v. Hatch Valley Pub. Sch., 2016-NMCA-034, ¶ 11, 369
P.3d 1, 4, rev’d, No. S-1-SC-35641, 2018 WL 1099030 (N.M. March. 1, 2018)), and, in the
- 16 -
Tenth Circuit, a discrimination claim arises where the discriminatory decisions are made, see
Post-Hearing Response at 2 (citing Reid v. D.P. Curtis Trucking, Inc., No. CIV 12-134, 2012
WL 5409786, at *1 (D.N.M. Oct. 31, 2012)(Molzen, M.J.); Tipnis v. Emery Tel., No. CIV
A06CV02402WYDCBS, 2007 WL 1306495, at *1 (D. Colo. May 3, 2007)(Daniel, J.)).
The Plaintiffs assert that the Court’s decision in Benavidez is consistent with Camargo,
because, in Benavidez, the Court asked “‘whether the events giving rise to this lawsuit took place
at the Kirtland Air Force Base.’” Post-Hearing Response at 4 (quoting Benavidez, 2016 WL
9777419, at *40). The Plaintiffs contend that, in Benavidez, there was no question that the
challenged decisions occurred on the Kirtland Air Force Base, whereas here, there is dispute
whether the challenged decisions were made elsewhere. See Post-Hearing Response at 4-5.
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a
complaint
for
“failure
to
state
a
claim
upon
which
relief
can
be
granted.”
Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the
allegations within the four corners of the complaint after taking those allegations as true.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The complaint’s sufficiency is a
question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true the
complaint’s well-pled factual allegations, view those allegations in the light most favorable to the
nonmoving party, and draw all reasonable inferences in the plaintiff’s favor. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not
draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a
motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or
purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations
- 17 -
in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing
Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action” is
insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550
U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly,
550 U.S. at 555.
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that,
if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complainant must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court
of Appeals for the Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the
line from conceivable to plausible.” The allegations must be enough that, if
- 18 -
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Board of Cty. Comm’rs,
278 F. Supp. 3d 1245, 1258, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.).
“When a party presents matters outside of the pleadings for consideration, as a general
rule ‘the court must either exclude the material or treat the motion as one for summary
judgment.’” Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103
(10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There
are three limited exceptions to this general principle: (i) documents that the complaint
incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiff’s
claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co.,
287 F.3d at 941; and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of America, Inc. v. NBC
Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a
seminar recording and a TV episode on a rule 12(b)(6) motion, which were “attached to or
referenced in the amended complaint,” central to the plaintiff’s claim, and “undisputed as to their
accuracy and authenticity”). “[T]he court is permitted to take judicial notice of its own files and
records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211
F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d
946, 955 (10th Cir. 2001).
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their
motion with numerous documents, and the district court cited portions of those motions in
- 19 -
granting the [motion to dismiss].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch
reliance was improper” and that, even if “the district court did not err initially in reviewing the
materials, the court improperly relied on them to refute Mr. Gee’s factual assertions and
effectively convert the motion to one for summary judgment.” 627 F.3d at 1186-87. In other
cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts
outside of the complaint, however, it is clear that the district court dismissed the claim under
Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 F. App’x 529, 534 n.4 (10th
Cir.
2005)(unpublished).
In
Douglas
v.
Norton,
167
F. App’x
698
(10th
Cir.
2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal
Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of
limitations analysis -- and concluded that, because the requirement was not jurisdictional, the
district court should have analyzed the question under rule 12(b)(6), and “because the district
court considered evidentiary materials outside of Douglas’ complaint, it should have treated
Norton’s motion as a motion for summary judgment.” 167 F. App’x at 704-05.
The Court has previously ruled that, when a plaintiff references and summarizes
defendants’ statements in a complaint, the Court cannot rely on documents containing those
statements that the Defendant’s attach in their briefing. See Mocek v. City of Albuquerque, 2013
WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the
statements were neither incorporated by reference nor central to the plaintiff’s allegations in the
complaint, because the plaintiff cited the statements only to attack the Defendant’s reliability and
truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when
determining whether to toll a statute of limitations in an action alleging fraud and seeking
subrogation from a defendant, the Court may not use interviews and letters attached to a motion
- 20 -
to dismiss, which show that a plaintiff was aware of the defendant’s alleged fraud before the
statutory period expired. See Great Am. Co. v. Crabtree, 2012 WL 3656500, at *3, *22-23
(D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in Crabtree determined that the
documents did not fall within any of the Tenth Circuit’s exceptions to the general rule that a
complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate
the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek
v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not
“central to [the plaintiff’s] claims”).
On the other hand, in a securities class action, the Court has ruled that a defendant’s
operating certification, to which plaintiffs referred in their complaint, and which was central to
whether the plaintiffs adequately alleged a loss, fell within an exception to the general rule, so
the Court could consider the operating certification when ruling on the defendant’s motion to
dismiss without converting the motion into one for summary judgment.
See Genesee Cty.
Emps.’ Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F. Supp. 2d 1082, 1150-51
(D.N.M. 2011)(Browning, J.); Mata v. Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M.
2009)(Browning, J.)(relying on documents outside of the complaint, because they were
“documents that a court can appropriately view as either part of the public record, or as
documents upon which the Complaint relies, and the authenticity of which is not in dispute”);
S.E.C. v. Goldstone, 952 F. Supp. 2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering,
on a motion to dismiss, electronic mail transmissions referenced in the complaint as “documents
referred to in the complaint,” which are “central to the plaintiff’s claim” and whose authenticity
the plaintiff did not challenge).
- 21 -
LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES
“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on
race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825
(1976)(citing 42 U.S.C. §§ 2000e-2, 2000e-3). The Court has noted that Title VII generally
protects individuals from employers’ improperly motivated adverse treatment in the workplace:
“Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire
or discharging any individual, or otherwise discriminating against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219, 2007 WL
6364329, at *6 (D.N.M. Dec. 31, 2007)(Browning, J.)(quoting 42 U.S.C. § 2000e-2(a)(1))
(internal quotation marks omitted)(alterations omitted).
With the 1972 amendments to the
statute, Title VII’s protections apply to federal and private employees. See Brown v. Gen. Servs.
Admin., 425 U.S. at 825-26 (citing 42 U.S.C. § 2000e(b)); Walton v. New Mexico State Land
Office, 113 F. Supp. 3d 1178, 1184 (D.N.M. 2015)(Browning, J.); Gerald v. Locksley, 785 F.
Supp. 2d 1074, 1098 (D.N.M. 2011)(Browning, J.).
1.
Disparate Treatment Discrimination.
“To prevail on a disparate treatment claim under Title VII of the Civil Rights Act, a
plaintiff must show that [the] employer intentionally discriminated against [the plaintiff] for a
reason prohibited by the statute.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1306 (10th
Cir. 2005). Courts apply the burden-shifting framework that the Supreme Court established in
McDonnell Douglas Corp. v. Green, which initially places the burden on the plaintiff to prove a
prima facie case of discrimination. See, e.g., EEOC v. PVNF, LLC, 487 F.3d 790, 800-01 (10th
Cir. 2007).
- 22 -
The elements that the Supreme Court established in McDonnell Douglas Corp. v. Green
address only a refusal to rehire. Accordingly, the articulation of a plaintiff’s prima facie case
“varies depending on the type of adverse action the employee alleges was discriminatory.”
EEOC v. PVNF, LLC, 487 F.3d at 800 (citing Plotke v. White, 405 F.3d 1092, 1099 (10th
Cir. 2005)). See 1 Lex K. Larson, Employment Discrimination § 8.08[1], at 8-103 (2d ed.
2012)(“[C]ourts have applied the McDonnell Douglas prima facie case, sometimes modifying
the proof requirements to fit the specific facts of the case, to cases involving promotion,
discharge, demotion, discipline, layoffs, and other types of employer actions.”). Generally, to
prove a disparate-treatment discrimination claim at the summary judgment stage, “a prima facie
case of discrimination must consist of evidence that (1) the victim belongs to a protected class;
(2) the victim suffered an adverse employment action; and (3) the challenged action took place
under circumstances giving rise to an inference of discrimination.” EEOC v. PVNF, LLC, 487
F.3d at 800. See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005)(holding
that a “prima facie case for discrimination” requires the “plaintiff to show that (1) he belongs to
the protected age group; (2) his job performance was satisfactory; (3) adverse employment action
was taken against him; . . . [in (4)] ‘circumstances giving rise to an inference of discrimination’”
(quoting Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004))(citing Plotke v.
White, 405 F.3d at 1101; Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181
(10th Cir. 2002))); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000)). A prima
facie case of disparate discipline may be established if the plaintiff proves by a preponderance of
the evidence that: (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the
employer, and (3) the employer imposed the discipline under circumstances giving rise to an
inference of racial discrimination. Cf. Mathews v. Denver Newspaper Agency LLP, 649 F.3d
- 23 -
1199, 1208 (10th Cir. 2011)(“[The plaintiff] bears the initial burden of . . . presenting evidence
that (i) he is a member of a protected class, (ii) he was qualified for the job as Unit Supervisor,
(iii) he was demoted from that job, and (iv) the position was not eliminated.” (citing Jones v.
Denver Post Corp., 203 F.3d at 753)).18 See Walton v. New Mexico State Land Office, 113 F.
Supp. 3d at 1188.
18
The Court has previously written: “To establish a prima-facie case of discrimination, a
plaintiff must demonstrate that: (i) she is a member of a protected class; (ii) she suffered an
adverse-employment action, and (iii) similarly situated employees were treated differently.”
Gerald v. Locksley, 785 F. Supp. 2d at 1099. The Court cited to the Tenth Circuit’s August,
2005, decision of Orr v. City of Albuquerque 417 F.3d 1149 (10th Cir. 2005), in which the Tenth
Circuit stated: “To make out a prima facie case of discrimination, the female Plaintiffs must
demonstrate (1) membership in a protected class, (2) adverse employment action, and
(3) disparate treatment among similarly situated employees.” Orr v. City Of Albuquerque, 417
F.3d 1140, 1149 (10th Cir. 2005). Only a few months after Orr v. City Of Albuquerque, in
December, 2005, the Tenth Circuit held that a district court’s inclusion in the plaintiff’s prima
facie case of showing “comparable employees who were not in a protected class did not receive
comparable adverse employment action” was the “recitation of an outmoded prima facie case
test” and that showing disparate treatment of similarly situated individuals is only one way to
prove the third McDonnell Douglas Corp. v. Green element. Sorbo v. United Parcel Serv., 432
F.3d at 1173. The Tenth Circuit recognized that the proper third element is -- and had been since
at least 1999 -- the broader prima facie requirement that the defendant took the adverse
employment action under “circumstances giving rise to an inference of discrimination.” Sorbo v.
United Parcel Serv., 432 F.3d at 1173 (citing Perry v. Woodward, 199 F.3d 1126, 1135-40
(1999); Salguero v. City of Clovis, 366 F.3d at 1175; Plotke v. White, 405 F.3d at 1101; Hysten
v. Burlington N. & Santa Fe Ry. Co., 296 F.3d at 1181; Jones v. Denver Post Corp., 203 F.3d
at 753). It noted that, “[w]hile this broader requirement may be (and often is) satisfied by proof
that the employer treated similarly situated employees more favorably, such proof is just one
sufficient means to do this and should not itself be mistaken as an indispensable element of the
prima facie case.” United Parcel Serv., 432 F.3d at 1173. At the same time, the Tenth Circuit
noted that its precedent has been inconsistent on whether a prima facie discrimination case
requires showing similarly situated individuals were treated more favorably: “As noted in
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1307 n.1 (10th Cir. 2005), this court’s own
jurisprudence has not been entirely consistent in this regard.” Sorbo v. United Postal Serv., 432
F.3d at 1173 n.4 (citing, as an e.g. cite, MacKenzie v. City & Cnty. of Denver, 414 F.3d at 1277).
Similarly, in the context of the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621-634 (“ADEA”), which also applies the McDonnell Douglas Corp. v. Green prima
facie case framework, the Supreme Court declared: “Because it lacks probative value, the fact
that a[] . . . plaintiff was replaced by someone outside the protected class is not a proper element
of the McDonnell Douglas prima facie case.” O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 312 (1996). The Supreme Court held that “the proper solution to the problem lies not
- 24 -
2.
Title VII Retaliation.
To establish a prima facie case of retaliation, a plaintiff must show: “(1) that he [or she]
engaged in protected opposition to discrimination, (2) that a reasonable employee would have
found the challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Proctor v. United Parcel Serv., 502
F.3d 1200, 1208 (10th Cir. 2007)(quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452
F.3d at 1202). “To establish that a causal connection exists,” a plaintiff “may proffer ‘evidence
of circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.’” Proctor v. United Parcel Serv., 502 F.3d at 1208 (quoting Haynes
v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006)). Generally speaking, if this
temporal proximity between the protected activity and the adverse action are not “very close in
time,” the plaintiff “must offer additional evidence to establish causation.” Proctor v. United
Parcel Serv., 502 F.3d at 1209 (internal quotation marks omitted)(quoting Haynes v. Level 3
Commc’ns, LLC, 456 F.3d at 1228). See Walton v. New Mexico State Land Office, 113 F.
Supp. 3d at 1190; Gerald v. Locksley, 785 F. Supp. 2d at 1099-1100.
3.
Materially Adverse Employment Action.
The Tenth Circuit liberally defines what constitutes an adverse employment action. See
Orr v. City of Albuquerque, 417 F.3d 1144, 1150 (10th Cir. 2005)(“Because of the remedial
in making an utterly irrelevant factor an element of the prima facie case, but rather in
recognizing that the prima facie case requires ‘evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory criterion.’” 517 U.S. at 312-13
(emphasis in original)(quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). The
Court, therefore, concludes that its articulation of the McDonnell Douglas Corp. v. Green prima
facie case elements for discrimination in Gerald v. Locksley, based on the Tenth Circuit’s
decision in Orr v. City of Albuquerque, which was among the Tenth Circuit’s jurisprudence “not
. . . entirely consistent in this regard,” Sorbo v. United Postal Serv., 432 F.3d at 1173 n.4, is not
the best statement of the law.
- 25 -
nature of Title VII lawsuits, we broadly define adverse employment action.”). The Tenth Circuit
has stated:
Such actions are not simply limited to monetary losses in the form of wages or
benefits. Instead, we take a case-by-case approach, examining the unique factors
relevant to the situation at hand. Nevertheless, we will not consider a mere
inconvenience or an alteration of job responsibilities to be an adverse employment
action.
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)(internal quotation marks
omitted)(citations omitted). See Proctor v. United Parcel Serv., 502 F.3d at 1208. An adverse
action “is not limited to discriminatory actions that affect the terms and conditions of
employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). “[A]
plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Reinhardt v. Albuquerque Pub.
Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010)(internal quotation marks omitted)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68). “The antiretaliation
provision protects an individual not from all retaliation, but from retaliation that produces an
injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68 (“We speak of
material adversity because we believe it is important to separate significant from trivial harms.”).
“We construe the phrase ‘adverse employment action’ liberally and do not limit it to ‘monetary
losses in the form of wages or benefits.’” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595
F.3d at 1133 (quoting Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004)). Acts that
carry “a significant risk of humiliation, damage to reputation, and a concomitant harm to future
employment prospects” may be considered adverse actions, although “a mere inconvenience or
an alteration of job responsibilities will not suffice.” Annett v. Univ. of Kan., 371 F.3d at 1239
- 26 -
(internal quotation marks omitted)(citation omitted).
In Anderson v. Clovis Municipal Schools, 265 F. App’x 699 (10th Cir. 2008)
(unpublished), the Tenth Circuit, in an unpublished opinion, addressed the requirement of an
adverse employment action in the context of a disparate-treatment claim and a hostile work
environment claim. There, an employee, who had been placed on a growth plan, alleged other
harsh treatment and a written reprimand in support of his claim that he suffered a hostile work
environment. Relying on Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir. 1999), the
plaintiff, Anderson, argued that the growth plan and formal reprimand rose to the level of an
adverse employment action under Tenth Circuit law. See Schuler v. City of Boulder, 189 F.3d
1304 (10th Cir. 1999). In discussing Anderson v. Clovis Municipal School’s reliance on Schuler
v. City of Boulder, the Tenth Circuit stated in MacKenzie v. City & Cty. of Domier, 414 F.3d
1266 (10th Cir. 2005): “While adverse employment actions extend beyond readily quantifiable
losses, not everything that makes an employee unhappy is an actionable adverse action.
Otherwise, minor and even trivial employment actions . . . would form the basis of a
discrimination suit.” 414 F.3d at 1279. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847,
857 (10th Cir. 2007)(explaining that Title VII proscribes only discriminatory conduct that “alters
the employee’s compensation, terms, conditions, or privileges of employment, or adversely
affects [the employee’s] status as an employee” (internal quotation marks omitted)). “Only acts
that constitute a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits will rise to the level of an adverse employment action.” Robinson
v. Cavalry Portfolio Serv., LLC, 365 F. App’x 104, 114 (10th Cir. 2010)(unpublished)(quoting
Haynes v. Level 3 Commc’ns, 456 F.3d at 1218-19)(internal quotation marks omitted). See
- 27 -
Walton v. New Mexico State Land Office, 113 F. Supp. 3d at 1190-92; Gerald v. Locksley, 785
F. Supp. 2d at 1100-01.
LAW REGARDING THE NMHRA
The NMHRA, which the New Mexico Human Rights Division and the New Mexico
Human Rights Commission administers, makes it an unlawful discriminatory practice for
an employer, unless based on a bona fide occupational qualification or other
statutory prohibition, to refuse to hire, to discharge, to promote or demote or to
discriminate in matters of compensation, terms, conditions or privileges of
employment against any person otherwise qualified because of race, age, religion,
color, national origin, ancestry, sex, physical or mental handicap or serious
medical condition, or, if the employer has fifty or more employees, spousal
affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall
apply to discrimination based on age; or, if the employer has fifteen or more
employees, to discriminate against an employee based upon the employee’s
sexual orientation or gender identity[.]
N.M. Stat. Ann. § 28-1-7A.
The NMHRA allows individuals to bring a lawsuit in the
appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill,
117-NMSC-380, 872 P.2d 353, 355 (1994). The NMHRA sets out the same standard for
establishing wrongful discrimination as Title VII. See Orr v. City of Albuquerque, 417 F.3d
1144, 1149 n.5 (10th Cir. 2005)(“Plaintiffs’ burden under the NMHRA is identical to their
burden under Title VII.”); Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1296-97 (10th Cir. 2013)
(holding that, “because we conclude that Lobato has no Title VII claim, we also conclude he has
no NMHRA claim”).
The NMHRA requires an individual to first exhaust his or her
administrative remedies before bringing a lawsuit. See Luboyeski v. Hill, 117-NMSC-380, 872
P.2d at 355; Bates v. N.M. Corr. Dep’t, No. CIV 08-1013, 2010 WL 4339367, at *7 (D.N.M.
Sept. 30, 2010)(Browning, J.)(“NMHRA claims must be administratively exhausted before being
brought in federal court.”). The NMHRA provides:
A person aggrieved by an order of the commission may obtain a trial de novo in
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the district court of the county where the discriminatory practice occurred or
where the respondent does business by filing a notice of appeal within ninety days
from the date of service of the [New Mexico Human Rights] commission’s order.
N.M. Stat. Ann. § 28-1-13A.
The Supreme Court of New Mexico applies the framework that the Supreme Court of the
United States established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “[w]hen
considering a violation of the NMHRA.” Juneau v. Intel Corp., 2006-NMSC-002, ¶ 9, 127 P.3d
548, 551. The Supreme Court of New Mexico has stated that, “when considering claims under
the NMHRA, we may look at federal civil rights adjudication for guidance in interpreting the
NMHRA. Our reliance on the methodology developed in the federal courts, however, should not
be interpreted as an indication that we have adopted federal law as our own.” Ocana v. Am.
Furniture Co., 2004-NMSC-018, ¶ 23, 91 P.3d 58, 68 (internal quotation marks
omitted)(citations omitted). “[C]laims of age, race, national origin, gender discrimination, and
retaliation are all subject to the burden shifting framework that the Supreme Court established in
McDonnell Douglas Corp. v. Green.” Gamez v. Country Cottage Care and Rehab., 377 F. Supp.
2d 1103, 1119 (D.N.M. 2005)(citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-804).
Under the McDonnell Douglas Corp. v. Green framework, a plaintiff must set forth a prima facie
case of discrimination. See Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1210 (D.N.M.
2004)(Browning, J.). If the plaintiff establishes a prima facie case for any of his discrimination
claims, “the burden shifts to the defendant to come forward with a legitimate nondiscriminatory
reason for its employment related decision.” McDonnell Douglas Corp. v. Green, 411 U.S. at
802. “Upon the employer’s articulation of a legitimate, nondiscriminatory reason . . . the
presumption of discrimination established by the prima facie case simply drops out of the
picture.” Kelley v. City of Albuquerque, 375 F. Supp. 2d at 1210 (internal quotations omitted).
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The plaintiff then must present evidence that the defendant’s proffered reason for the
employment decision was pretextual. See Kelley v. City of Albuquerque, 375 F. Supp. 2d at
1210 (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).
The Supreme Court of New Mexico has stated that the framework it applies to discrimination
claims under the NMHRA is as follows: “[A]n employee bears the initial burden of
demonstrating a prima facie case of discrimination, which then shifts the burden to the employer
to provide a legitimate, non-discriminatory reason for the adverse employment action. The
employee then has the opportunity to rebut the employer’s proffered reason as pretextual or
otherwise inadequate.” Juneau v. Intel Corp., 2006-NMSC-002, ¶ 9, 127 P.3d at 551 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. at 802-805). This approach is the same as the
McDonnell Douglas Corp. v. Green framework.
While New Mexico uses federal law to interpret the NMHRA, there are two ways in
which the NMHRA is broader than federal law.
First, as this Court has previously
acknowledged, the Supreme Court of New Mexico allows for personal liability under the
NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. 08-0756 JB, 2009 WL 2482170, at
*7 (D.N.M. July 28, 2009)(Browning, J.). The NMHRA defines “employer” as “any person
employing four or more persons and any person acting for an employer.” N.M. Stat. Ann. § 281-2B. While acknowledging that there is generally no personal liability under Title VII, the
Supreme Court of New Mexico has “reject[ed] the proposition that there can exist no individual
liability under the NMHRA.” Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 22 P.3d 1188, 1193. In
Sonntag v. Shaw, a defendant relied on Title VII case law to argue that employees cannot sue a
corporation’s owner in the owner’s individual capacity under the NMHRA. See 2001-NMSC015, ¶ 13, 22 P.3d at 1193. Although it held that the defendant could not be held personally
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liable, given that the plaintiff had failed to exhaust administrative remedies, the Supreme Court
of New Mexico declined to close the door on individual liability under the NMHRA. See 2001NMSC-015, ¶ 13, 22 P.3d at 1193. The Supreme Court of New Mexico noted:
[T]his Court has acknowledged the possibility of individual liability for
discrimination claims. Cf. Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353,
355 (1994)(affirming the dismissal of individual defendants because the plaintiff
failed to exhaust administrative remedies against them); Mitchell-Carr v.
McLendon, 1999-NMSC-025, ¶ 10, 127 N.M. 282, 980 P.2d 65 (citing
Luboyeski). As Plaintiff suggests, the potential for individual liability for
discrimination claims is rooted in the language of the NMHRA itself, which
forbids “any person” from supporting a discriminatory practice. Section 28-17(i); see N.M.S.A. 1978, § 28-1-2(A) (1993)(including within its definition of
“person” for purposes of the NMHRA, “one or more individuals”).
2001-NMSC-015, ¶ 12, 22 P.3d at 1193. Second, the NMHRA’s definition of “serious medical
condition,” N.M. Stat. Ann. § 28-1-7, is broader in scope than the ADA’s definition of disability.
See Clayton v. Pioneer Bank, No. 07-0680, 2008 WL 5787472, at *17-18 (D.N.M. Dec. 31,
2008)(Browning, J.)(recognizing that, although “the terms ‘medical condition’ under the
NMHRA, and ‘disability,’ under the ADA, may be interchangeable in some cases[,]” they may
not be the same in others).
LAW REGARDING THE FEDERAL ENCLAVE DOCTRINE
The Constitution of the United States’ Enclave Clause gives Congress the power to:
exercise exclusive Legislation . . . over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings.
U.S. Const. art. I, § 8, cl. 17. Under the federal enclave doctrine, “state law that is adopted after
the creation of the enclave generally does not apply on the enclave.” Allison v. Boeing Laser
Tech. Servs., 689 F.3d at 1235. The central principle of the federal enclave doctrine is that
Congress has exclusive authority over these enclaves. See Allison v. Boeing Laser Tech. Servs.,
689 F.3d at 1235. The Tenth Circuit has explained:
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But in the absence of applicable federal legislation displacing state law, those
state laws that existed at the time that the enclave was ceded to the federal
government remain in force. “Since a State may not legislate with respect to a
federal enclave unless it reserved the right to do so when it gave its consent to the
purchase by the United States, only state law existing at the time of the
acquisition remains enforceable, not subsequent laws.” Paul [v. U.S.], 371 U.S.
[245,] 268 [(1953)]. Thus, the federal government acquires property subject to
state law.
The Constitution does not command that every vestige of the laws
of the former sovereignty must vanish. On the contrary its
language has long been interpreted so as to permit the continuance
until abrogated of those rules existing at the time of the surrender
of sovereignty which govern the rights of the occupants of the
territory transferred. This assures that no area however small will
be left without a developed legal system for private rights.
James Stewart & Co. v. Sandrakula, 309 U.S. 94, 99-100 (1940). And even
though state law will not remain static outside the enclave, any changes made to
the state law applicable within the enclave must be a matter of federal law.
Because “future statutes of the state are not a part of the body of laws in the ceded
area,” “Congressional action is necessary to keep [state law] current.” James
Stewart, 309 U.S. at 100.
Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237. The law of federal enclaves, however,
allows for three exceptions. See Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237.
The Supreme Court has recognized at least three exceptions to the rule that only
state law in effect at the time of cession applies within the federal enclave: 1)
where Congress has, by statute, provided a different rule; 2) where the state
explicitly retained the right to legislate over specific matters at the time of
cession; and 3) where minor regulatory changes modify laws existing at the time
of cession.
The first exception recognizes the obvious fact that Congress can legislate on
behalf of the enclave and may provide for the application of state laws enacted
after the creation of the enclave. See [U.S. v.] Sharpnack, 355 U.S. [286,] 294-95
[(1958)]. Thus, for example, the first Federal Crimes Act, enacted in 1790,
defined a number of federal crimes that applied to federal enclaves, and in 1825
Congress adopted the first Assimilated Crimes Act, which allowed state criminal
codes to apply to crimes committed on federal enclaves. Id. at 288, 290. State
criminal codes now apply to crimes committed on military bases, Indian
reservations, federal facilities, and public lands unless other federal statutes bar
their application. Congress has also allowed the application of state law to a
variety of civil claims in federal enclaves, such as wrongful death, 16 U.S.C. §
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457; workers’ compensation, 40 U.S.C. § 3172; unemployment compensation, 26
U.S.C. § 3305(d); and fish and game regulation, 10 U.S.C. § 2671.
But no federal statute yet allows the broad application of state employment, tort,
and contract law to federal enclaves. And “it is well established that in order for
Congress to subject a federal enclave to state jurisdiction, there must be a specific
congressional deferral to state authority over federal property.” West River Elec.
Ass’n, Inc. v. Black Hills Power and Light Co., 918 F.2d 713, 719 (8th Cir. 1990).
The second exception deals with those powers the states expressly reserved at the
time of cession. In James v. Dravo Contracting Co., 302 U.S. 134 (1937), the
Supreme Court upheld the power of states to transfer only partial jurisdiction to
the federal government, retaining some authority over the ceded lands. Common
reservations of power include the authority to collect state taxes and the right to
serve civil and criminal process within an enclave. See, e.g., James v. Dravo
Contracting Co., 302 U.S. at 149, and Paul, 371 U.S. at 266 (discussing West
Virginia and California federal enclave cession consent statutes). Reservations
may also be much broader, preserving a wide range of state powers. See United
States v. Fields, 516 F.3d 923, 929 (10th Cir. 2008)(explaining that an Oklahoma
cession statute “indicates that the United States is being ceded full civil and
criminal jurisdiction, with a concurrent jurisdiction reserved to the State”).
The third exception applies to minor regulatory changes to state programs that
existed at the time of cession. In Paul, the Supreme Court considered state
regulatory schemes that were in place when the state ceded sovereignty but
required ongoing maintenance from a regulatory body. The Court found, for
example, that changes in milk pricing regulations applicable on a federal enclave
might be permissible “provided the basic state law authorizing such control has
been in effect since the time[ ] of [cession].” Paul, 371 U.S. at 269.
Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237-38.
ANALYSIS
The Court concludes that the federal enclave doctrine applies to state employment
discrimination claims when the plaintiffs work and are harmed on the federal enclave, even if the
employer makes allegedly discriminatory decisions elsewhere.
Consequently, the federal
enclave doctrine bars the Plaintiffs’ NMHRA and NMFPWA claims, because the Plaintiffs were
harmed on the federal enclave, and the NMHRA and NMFPWA do not predate the federal
enclave’s creation.
If the federal enclave doctrine applied to state-law employment
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discrimination claims only when an employer makes the employment decisions on the federal
enclave, the Court would not grant summary judgment in this case, because Sandia Labs has not
established that the allegedly discriminatory decisions happened on Kirtland Air Force Base.
I.
THE FEDERAL ENCLAVE DOCTRINE APPLIES TO THE PLAINTIFFS’
STATE-LAW CLAIMS.
The Plaintiffs work or worked on Kirtland Air Force Base, and they bring state-law
employment discrimination claims against Sandia Labs. Although courts are split whether the
federal enclave doctrine applies to state employment discrimination claims when an employer
makes an allegedly discriminatory decision off the federal enclave, the Court concludes that the
best rule is that the federal enclave doctrine applies when an employee works on a federal
enclave. Here, it is clear that most, if not all, of the Plaintiffs work on the federal enclave, and, if
there was a tortious employment practice, the injury and damage are on the federal enclave.
A.
COURTS ARE SPLIT WHETHER THE FEDERAL ENCLAVE
DOCTRINE APPLIES WHEN ALLEGEDLY DISCRIMINATORY
DECISIONS ARE MADE OFF OF THE ENCLAVE.
When employees who work on a federal enclave bring state-based employment claims,
some federal courts look to where the defendant employer made an allegedly discriminatory
decision when deciding whether the federal enclave doctrine applies to the claims. In Camargo,
the plaintiff worked as a hairdresser on Fort Bliss, a United States Army post headquartered in El
Paso, Texas, and she sued her employer, a contractor, alleging that she was terminated for
discriminatory reasons. See 2010 WL 3516186, at *1. The Honorable Kathleen Cardone,
United States District Judge for the Western District of Texas, stated that,
[f]or federal enclave jurisdiction to apply, in employment discrimination cases,
the adverse employment decision must have been made on federal territory,
because the locus of decision-making is where such a tort arises. The fact that the
employee’s day-to-day job site is on a federal enclave, alone, is not sufficient for
these purposes; rather, the location where management made the illegal decision
controls.
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2010 WL 3516186, at *2. See Balderrama v. Pride Indus., Inc., 963 F. Supp. 2d 646, 659 (W.D.
Tex. 2013)(Cardone, J)(determining that the federal enclave doctrine does not bar the plaintiff’s
state law claims when the complaint alleges that the defendants made “discriminatory and
retaliatory decisions in El Paso, but off of Fort Bliss”); Lawler v. Miratek Corp., No. EP-09-CV252-KC, 2010 WL 743925, at *4 (W.D. Tex. Mar. 2, 2010)(Cardone, J.)(concluding that federal
enclave jurisdiction does not apply to the plaintiff’s state-law claims, because the “employmentdiscrimination misdeeds allegedly committed by Miratek -- such as the termination of Lawler’s
employment for improper reasons -- . . . were committed where its management was located,
which is a building outside of Fort Bliss”); Gavrilovic v. Worldwide Language Res., Inc., 441 F.
Supp. 2d 163, 177 (D. Me. 2006)(Hornby, J)(stating that the federal enclave doctrine does not
apply to United States military bases abroad, but, even if it did, it would not apply to the
plaintiff’s employment claims, because “company senior management in Maine” made the
allegedly retaliatory decision to recall her from the military base and to discontinue her security
clearance).
Other federal courts -- mostly in California -- apply the federal enclave doctrine
whenever the employee works on a federal enclave, even if a challenged employment decision
occurred off of the enclave. In Powell v. Tessada & Assocs., Inc., No. C 04-05254, 2005 WL
578103 (N.D. Cal. Mar. 10, 2005)(Fogel, J19)(unpublished), the plaintiffs worked for a contractor
as janitors at Moffett Federal Airfield, a federal enclave in Northern California. See 2005 WL
578103, at *2. When their employer got a new contract to provide janitorial services to Moffett
Federal Airfield, the employer did not retain the plaintiffs, and the plaintiffs brought state-law
19
The Honorable Jeremy D. Fogel, United States Senior District Judge for the Northern
District of California, currently serves as the Federal Judicial Center’s Director. See Senior
Staff, https://www.fjc.gov/about/senior-staff (last visited May 4, 2018).
- 35 -
claims alleging that the employer discriminated against them on the basis of their age. See 2005
WL 578103, at *2. The plaintiffs argued that, although they worked on a federal enclave, the
federal enclave doctrine did not apply, because the “Defendants’ refusal to retain Plaintiffs was
accomplished in Defendants’ corporate office in Virginia,” not on the federal enclave. 2005 WL
578103, at *2. Judge Fogel concluded that, “regardless of where the decision not to retain
Plaintiffs was made, the decision reflects Defendants’ employment practice on the enclave. As a
result, Plaintiffs cannot maintain their state law claims.” 2005 WL 578103, at *2.
In Shurow v. Gino Morena Enterprises, LLC, No. 3:16-CV-02844, 2017 WL 1550162
(S.D. Cal. May 1, 2017)(Lorenz, J.)(slip copy), the plaintiff worked for a contractor on Camp
Pendleton, a federal enclave in Southern California, and brought state-law employment claims
alleging harassment and retaliation. See 2017 WL 1550162, at *1. The plaintiff argued that the
federal enclave doctrine does not bar her state claims, because the human resources department
was located outside Camp Pendleton, and management was outside Camp Pendleton when it
decided to terminate her. See 2017 WL 1550162, at *2. The Honorable M. James Lorenz,
United States District Judge for the Southern District of California, rejected those arguments,
stating: “In the context of claims by employees against contractor employers operating on a
federal enclave, the Doctrine applies if the plaintiff's place of employment was located on the
federal enclave. Because Plaintiff’s place of employment was located on Camp Pendleton, the
Federal Enclave Doctrine applies.” 2017 WL 1550162, at *2 (citations omitted). See Haining v.
Boeing Co., No. 2:12-CV-10704-ODW, 2013 WL 4874975, at *3 (C.D. Cal. Sept. 11, 2013)
(Wright II, J)(unpublished)(“The enclave’s law governs the employment claims of an employee
of a federal contractor operating on a federal enclave. Because Haining was employed by
Boeing exclusively at Vandenberg, his claims arose within a federal enclave -- regardless of
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where decisions concerning his employment or termination were made.” (citations omitted));
Lockhart v. MVM, Inc., 97 Cal. Rptr. 3d 206, 212 (2009), as modified (July 24, 2009)
(“[A]lthough [the termination] letter may have originated at respondent’s corporate headquarters
in Virginia . . . appellant was the employee of a federal contractor operating on a federal enclave.
Thus, her employment claims are governed by the enclave’s law.”); Taylor v. Lockheed Martin
Corp., 92 Cal. Rptr. 2d 873, 872 (Cal Ct. 2d 2000)(“As the employee of a contractor operating
on the enclave, Taylor’s claims are governed by the enclave’s law, rather than by state law.”).
The Tenth Circuit has not considered the question, but several United States District
Court for the District of New Mexico decisions have determined that the federal enclave doctrine
applies to claims by an employee who works on the federal enclave even when the alleged
discriminatory decision occurred off the federal enclave. For instance, in Allison v. Boeing
Laser Tech. Servs., the Honorable Robert Hayes Scott, United States Magistrate Judge,
determined that the federal enclave doctrine bars a federal enclave employee’s state-law claims
even if some employment decisions were made off of the federal enclave. See Allison v. Boeing
Laser Tech. Servs., No. CV 09-275, 2010 WL 11590920, at *5 (D.N.M. Aug. 2, 2010)
(Scott, M.J.)(citing Rosseter v. Industrial Light & Magic, 2009 WL 210452, at *2 (N.D. Cal. Jan.
27, 2009)(Alsup, J.); Powell v. Tessada & Assocs., 2005 WL 578103, at *2 (N.D. Cal. Mar. 10,
2005); Lockhart v. MVM, Inc., 97 Cal. Rptr. 3d 206, 212 (Ct. App. 2d Dist. Cal. 2009); Taylor v.
Lockheed Martin Corp., 92 Cal. Rptr. 2d at 872).
In Richards v. Lockheed Martin Corp., the Honorable William P. Johnson, then-United
States District Judge and now Chief Judge, similarly concluded that, “although the actual
decision to terminate Plaintiff may have been made” off of the federal enclave -- in that case, the
White Sands Missile Base -- the federal enclave doctrine applied to the plaintiff’s claims;
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“‘regardless of where the decision not to retain [the plaintiff] was made, the decision reflects
Defendants’ employment practice on the enclave.’” Richards v. Lockheed Martin Corp., 2012
U.S. Dist. LEXIS 191331, *4 (quoting Powell v. Tessada & Assocs., 2005 WL 578103, at *2)
(citing Rosseter v. Industrial Light & Magic, 2009 WL 210452, at *2; Lockhart v. MVM, Inc.,
97 Cal. Rptr. 3d at 212; Taylor v. Lockheed Martin Corp., 92 Cal. Rptr. 2d at 872). “In other
words,” Judge Johnson explained, “any claims that Plaintiff asserts with regard to his termination
arose by virtue of his employment on the federal enclave.” Richards v. Lockheed Martin Corp.,
2012 U.S. Dist. LEXIS 191331, *4.
Recently, the Honorable Steven C. Yarbrough, United States Magistrate Judge, faced
facts similar to those in this case. In Smelser v. Sandia Corporation, No. CIV 17-388, 2018 WL
1627214 (D.N.M. March 30, 2018)(Yarbrough, M.J.)(slip copy), the plaintiff worked for Sandia
Labs on the Kirtland Air Force Base. See 2018 WL 1627214, at *8.
Although Plaintiff does not dispute that some of her state law claims are barred
under the federal enclave doctrine to the extent they are premised on conduct that
occurred on Kirtland Air Force Base, she asserts in her response brief and
accompanying affidavit that the federal enclave doctrine should not bar any
claims arising from conduct that occurred off base. Specifically, Plaintiff states in
her affidavit that Sandia’s human resources department was located off base
during the relevant time period, that she met with the human resources
department, including an equal opportunity representative, to report her need for
reasonable accommodations and the instances of discrimination, harassment, and
retaliation that she was subjected to, and that the human resources department
took no action.
2018 WL 1627214, at *8 (citations omitted). Magistrate Judge Yarbrough notes that the plaintiff
did not make these HR-related allegations in the complaint, but “even taking into account
Plaintiff’s assertions regarding the location and involvement of Sandia’s human resources
department, the Court nevertheless concludes that Plaintiff’s claims remain subject to the federal
enclave doctrine.” 2018 WL 1627214, at *8. Magistrate Judge Yarbrough continued:
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[T]he critical inquiry is whether the conduct or employment decision at issue
here “reflects Defendants’ employment practice on the enclave” – in other
words, whether the claims that Plaintiff asserts with regard to her
employment “arose by virtue of [her] employment on the federal enclave.”
See Richards v. Lockheed Martin Corporation et al., No. 2:11-cv-01033-WJ-CG,
March 1, 2012 Mem. Op. and Order at 3. Defendants correctly characterize this
as a determination of “the locus in which the claim arose”, i.e., “where the
‘substance and consummation of the’ claim occurred, and where ‘all pertinent
events occurred.’” Doc. 25 at 2 (quoting Olig v. Xanterra Parks & Resorts, Inc.,
2013 WL 3936904, at *3 (D. Mont. July 30, 2013) (unpublished) (internal
citations omitted)). Here, Plaintiff does not dispute that she worked in a Sandia
building on Kirtland Air Force Base and that all of the events giving rise to this
lawsuit -- with the exception of the above assertions regarding Sandia’s human
resources department -- took place on Kirtland Air Force Base. Specifically, the
reasonable accommodations Plaintiff alleges were not provided, the alleged
discrimination and retaliatory incidents, and the purported violations of
Sandia’s employee handbook all concerned her work activities on the
base. . . .
Under these facts, the Court concludes that Plaintiff’s claims arose by virtue of
her work on a federal enclave and that any decisions Sandia’s human
resources department may have undertaken reflected Defendants’
employment practices on the enclave.
Smelser v. Sandia Corp., 2018 WL 1627214, at *8 (emphasis added)(citing Richards v.
Lockheed Martin Corp., 2012 U.S. Dist. LEXIS 191331, *4; Shurow v. Gino Morena
Enterprises, LLC, 2017 WL 1550162, at *2; Haining v. Boeing Co., 2013 WL 4874975, at *3;
Lockhart v. MVM, Inc., 175 Cal. App. 4th at 1459).
B.
THE FEDERAL ENCLAVE DOCTRINE APPLIES TO FEDERAL
ENCLAVE
EMPLOYEES’
STATE-LAW
EMPLOYMENT
DISCRIMINATION CLAIMS.
The federal enclave doctrine applies to state law employment discrimination claims that
employees who work on a federal enclave bring, because the harm happens on the federal
enclave. The Court, therefore, agrees with its fellow District of New Mexico judges in adopting
the Ninth Circuit’s approach to apply the federal enclave doctrine when the employee works on a
federal enclave no matter where the employer made a discriminatory decision.
The Plaintiffs contend that the Court should apply the federal enclave doctrine only when
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an employer makes a discriminatory decision while on the federal enclave. See Post-Hearing
Response at 2. The Plaintiffs contend that looking to where the decision was made is the correct
approach, because, according to the Plaintiffs, (i) the Court should apply the federal enclave
doctrine to state employment discrimination claims when the state claim originates on the federal
enclave; and (ii) New Mexico courts would consider a discrimination claim to originate where a
discriminatory decision is made. See Post-Hearing Response at 2.
The Court declines to adopt the Plaintiffs’ suggested approach for two reasons. First, the
Constitution of the United States of America grants Congress the power “[t]o exercise exclusive
legislation” in federal enclaves, so it would not make sense for state choice-of-law rules to
determine the scope of that power. U.S. Const. art. I, § 8. Applying the federal enclave doctrine
only when state law would conclude that a claim arose on the federal enclave would subordinate
a power that the Constitution grants to Congress. See U.S. Const. art. VI (“This Constitution,
and the laws of the United States which shall be made in pursuance thereof . . . shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.”). When Congress exercises
exclusive jurisdiction over federal enclaves, it “‘acts as a state government with total legislative,
executive, and judicial power.’” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1236-37
(quoting United States v. Jenkins, 734 F.2d 1322, 1325-26 (9th Cir.1983)). The federal enclave
doctrine “operates as a choice of law doctrine that dictates which law applies to causes of action
arising on federal enclaves.” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1235. Under the
federal enclave doctrine, only state laws in effect when the federal enclave was established may
be enforced; there are a few exceptions to this general rule, but they underscore only the
principle that state laws only apply on federal enclaves when Congress expressly says they do.
- 40 -
See Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237 (noting that exceptions to the federal
enclave doctrine’s rule that only state laws in effect before the federal enclave’s existence apply
include “1) where Congress has, by statute, provided a different rule; 2) where the state explicitly
retained the right to legislate over specific matters at the time of cession; and 3) where minor
regulatory changes modify laws existing at the time of cession”).
Second, even if New Mexico law determined the federal enclave doctrine’s application in
this case, there is no sound reason to believe that New Mexico would place an employment
discrimination action where the discriminatory decision was made. The Plaintiffs contend that,
although New Mexico courts have not determined where an employment discrimination claim
originates, New Mexico courts look to Title VII for guidance when interpreting the NMHRA.
See Post-Hearing Response at 2 (citing Garcia v. Hatch Valley Pub. Sch., 2016-NMCA-034, ¶
11, 369 P.3d at 4). In Garcia v. Hatch Valley Pub. Sch., the Court of Appeals of New Mexico
stated that, “where there is no New Mexico precedent which resolves issues regarding the
NMHRA, we look to federal law interpreting Title VII for guidance.” 2016-NMCA-034, ¶ 11,
369 P.3d at 4, rev’d on other grounds, 2018-NMSC-020, ¶ 11. According to the Plaintiffs, the
Court should conclude that an NMHRA action arises where a discriminatory decision is made,
because Title VII grants jurisdictions in venues in which a discriminatory decision is made. See
Post-Hearing Response at 2 (citing Reid v. D.P. Curtis Trucking, Inc., 2012 WL 5409786, at *1;
Tipnis v. Emery Tel., 2007 WL 1306495, at *1). Essentially, the Plaintiffs urge the Court to
follow the Western District of Texas, which looks to Title VII’s venue rules to determine that an
employment discrimination claim arose where a decision was made:
The Court first observes that there appears to be very little Texas precedent on the
subject of determining the exact geographical location at which an employment
discrimination claim may be said to arise; accordingly, the Court will turn to
related areas of federal jurisprudence to analyze this issue. See Rodriguez v.
- 41 -
Flitertek, 518 F.Supp.2d 845, 849 (W.D.Tex.2007)(holding that federal
employment-discrimination law may be used to shed light on [Texas Commission
on Human Rights Act, V.T.C.A. Labor Code § 21 (“TCHRA”)] when on-point
state-law precedents are scarce). One context in which courts discuss the question
of where an employment discrimination tort actually occurs is in connection with
the venue provisions of the Title VII federal employment discrimination laws.
See 42 U.S.C. § 2000e–5(f)(3) (providing that venue is proper “in any judicial
district in the State in which the unlawful employment practice is alleged to have
been committed,” among other places). Ordinarily, Courts assume that the place
where the allegedly unlawful employment practice was committed is simply the
place where the aggrieved employee had been working or was seeking work. See,
e.g., March v. ABM Sec. Serv. Inc., No. H–09–CV–2422, 2010 WL 104480, at *1
(S.D.Tex. Jan.7, 2010); see also Ferguson v. Exelon Nuclear, No. 09–CV–1237,
2010 WL 107566, at *1 (C.D.Ill. Jan.7, 2010).
However, when the location of the aggrieved worker’s supervisor is different than
the location where the worker or prospective worker is situated, courts generally
hold that the place where the “unlawful employment practice is alleged to have
been committed” is the place where the employer “made the decision” which is
the subject of the complaint, not the place where the “effects are felt .” Whipstock
v. Raytheon Co., No. 2:07–CV–11137, 2007 WL 2318745, at *3 (E.D.Mich. Aug.
10, 2007). Instead of looking to where the worker is located, when “determining
where an alleged unlawful employment practice was committed, the Court must
look to the place where the decisions and actions concerning the employment
practices occurred.” Ifill v. Potter, No. 05–CV–2320, 2006 WL 3349549, at *2
(D.D.C. Nov. 17, 2006) (internal citations and quotation marks omitted).
Lawler v. Miratek Corp., No. EP-09-CV-252-KC, 2010 WL 743925, at *3.
If the Court had to determine whether an NMHRA claim originated from the place of the
work or the place of the decision, the Court would not look to Title VII venue for guidance,
because there is plenty of state caselaw and Restatement principles to guide the Court. For
example, New Mexico follows the traditional lex loci delicti commissi doctrine for tort claims,
i.e., that “the substantive rights of the parties are governed by the law of the place where the
wrong occurred.” Terrazas v. Garland & Loman, Inc., 2006-NMCA-111, ¶ 12, 142 P.3d at 377.
Thus, New Mexico courts continue to adhere to the Restatement (First) of Conflicts of Laws
(1934), such that the state where the wrong occurred is “the state where the last event necessary
to make an actor liable for an alleged tort takes place.” Restatement (First) Conflicts of Law §
- 42 -
377 & cmt. a (1934). See Flemma v. Halliburton Energy Servs., 2013-NMSC-022, 303 P.3d
814, 819 (“New Mexico follows the Restatement (First) of Conflict of Laws when analyzing
choice of law issues.”); United Wholesale Liquor Co. v. Brown-Forman Distillers Corp., 1989NMSC-030, ¶ 9, 775 P.2d 233, 469 (“New Mexico adheres to a traditional conflicts of law
analysis contained in Restatement (First) of Conflicts of Law.”). Although no New Mexico court
has determined whether an employment discrimination claim arises where the allegedly
discriminatory employment decision is made, the Court sees no sound reason to treat the
NMHRA and the NMFPWA differently than any other tort under New Mexico law. New
Mexico precedent and the Restatement (First) of Conflicts of Law indicate that, if the Plaintiffs
suffered harm in New Mexico, then New Mexico would apply its own laws. Otherwise, New
Mexico would not apply its own law. There is, therefore, no need to look to Title VII for
guidance in interpreting NMHRA on this issue.20
20
Moreover, Title VII’s venue provisions -- which determine the courts that can decide a
Title VII claim -- is not an appropriate benchmark to determine what laws to apply. Title VII
states that plaintiffs may bring Title VII claims
in any judicial district in which the unlawful employment practice is alleged to
have been committed, in the judicial district in which the employment records
relevant to such practice are maintained and administered, or in the judicial
district in which the aggrieved person would have worked but for the alleged
unlawful employment practice, but if the respondent is not found within any such
district, such an action may be brought within the judicial district in which the
respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3). For discriminatory compensation decisions, an unlawful employment
practice occurs
when a discriminatory compensation decision or other practice is adopted, when
an individual becomes subject to a discriminatory compensation decision or other
practice, or when an individual is affected by application of a discriminatory
compensation decision or other practice, including each time wages, benefits, or
other compensation is paid, resulting in whole or in part from such a decision or
other practice.
- 43 -
Here, the Plaintiffs were largely, if not entirely, working on Kirtland Air Force Base. It is
not a big leap to say that the harm occurred on Kirtland Air Force Base and that the Court should
focus on the harm’s locus. New Mexico follows the Restatement (First) for the Conflicts of
Laws, which directs courts to apply the law of the land where the harm occurred. See Terrazas
v. Garland & Loman, Inc., 2006-NMCA-111, ¶ 12, 142 P.3d at 377. Although the Court does
not conclude that the Restatement (First) for the Conflicts of Laws governs the federal enclave
doctrine analysis, its principles provide useful guidance for determining whether the federal
enclave doctrine applies to the Plaintiffs’ employment discrimination claims. The Restatement
(First) rules are clear and easy to apply. Focusing on the place of the harm is the most pragmatic
metric so that the federal enclave doctrine applies to claims for employment discrimination that
employees who work on federal enclaves bring. The silliness and burden of deciding where
decisions were made, when all the harm occurs on the federal enclave, is not the best use of
courts’ or the parties’ time. The place of decision is an arbitrary benchmark, and there is not
much justice to be gained by ferreting out where a decisionmaker happened to be standing when
making a certain decision.21
The decision only matters insofar as it affects the worker’s
employment experience.22
42 U.S.C.A. § 2000e-5(e)(3)(A). Thus, Title VII venue may be premised on many different
actions, including the place where a discriminatory decision is adopted, but also where “an
individual is affected” by the decision, § 2000e-5(e)(3)(A), where the relevant employment
records are located, or where a worker would have worked but for a discriminatory decision, see
§ 2000e-5(f)(3). Far from establishing that an employment discrimination claim arises from the
place where the discriminatory decision was made, Title VII’s § 2000e-5 provides a guide for
determining which venue or venues may hear a particular Title VII claim. See Reid v. D.P.
Curtis Trucking, Inc., 2012 WL 5409786, at *1 (stating that the Title VII’s venue statute “favors
factors convenient to the employer [and] trumps the more general venue statute found at 28
U.S.C. § 1404(a), which favors a plaintiff's choice of forum”). In other words, Title VII’s venue
provisions tell the Court little about what laws to apply to a given action.
21
In this case, there is not any discernable justice to be gained in deciding whether a
- 44 -
II.
THE FEDERAL ENCLAVE DOCTRINE BARS THE PLAINTIFFS’ STATE-LAW
CLAIMS.
Under the federal enclave doctrine, the general rule is that “state law that is adopted after
the creation of the enclave generally does not apply on the enclave.” Allison v. Boeing Laser
Tech. Servs., 689 F.3d at 1235. Here, the New Mexico Legislature adopted the NMHRA and the
NMFPWA after the Kirtland Air Force Base became a federal enclave. Kirtland Air Force Base
was established as a federal enclave in 1954. See Allison v. Boeing Laser Tech. Servs., 689 F.3d
at 1235. The New Mexico Legislature enacted the NMHRA in 1969. See Benavidez, 212 F.
Supp. 3d at 1097; Human Rights Comm’n of New Mexico v. Bd. of Regents of Univ. of New
Mexico Coll. of Nursing, 1981-NMSC-026, ¶ 9, 624 P.2d 518, 519.
The New Mexico
Legislature enacted the NMFPWA in 2013. See 2013 N.M. Laws ch. 12 (“Enacting the Fair Pay
for Women Act”). Given that the Kirtland Air Force Base became a federal enclave before New
decision is “made” in the off-enclave HR office where an allegedly discriminatory policy is
written or at the on-enclave HR’s vice-president’s office where the policy is approved.
22
On the other hand, if the tortious employment decisions were made on the federal
enclave and injured a plaintiff who does not work and is not on the federal enclave, there is no
sound reason to not give the employer the benefit and protection of the federal enclave doctrine.
In other words, although the Court concludes that the better rule is a broader federal enclave
doctrine rather than a more narrow one that may be difficult to apply, the Court’s approach and
the District Court of the Western District of Texas’ rules do not have to be mutually exclusive.
Thus, the only place where the federal enclave doctrine should not protect an employer
like Sandia Labs, which is operating largely on a federal enclave, is where the employer makes
the decision off the federal enclave and the plaintiff was also off the federal enclave. For
example, if Sandia Lab’s off-enclave official discriminates against a job applicant residing in
Tennessee, the federal enclave doctrine would not apply. In that scenario, it cannot be soundly
said that the place of the harm is the workplace if the plaintiff has presumably never worked on
the federal enclave and -- if interviewed remotely -- may never have stepped foot on it. Absent
this rare situation, however, the federal enclave doctrine should apply to an employer with the
bulk of its offices and employees on a federal enclave.
- 45 -
Mexico enacted the NMHRA and the NMFPWA, the federal enclave doctrine therefore bars
those claims.23
III.
IF THE PLACE OF DECISION RULE APPLIED, THE COURT COULD NOT
SOUNDLY GRANT SUMMARY JUDGMENT, BECAUSE SANDIA LABS HAS
NOT ESTABLISHED THAT IT MADE THE CHALLENGED DECISIONS ON
KIRTLAND AIR FORCE BASE.
Before considering where certain decisions were made, it is necessary to identify what
specific decisions are at issue. Reviewing the Complaint, there appears to be two categories of
decisions: (i) broad decisions in designing, approving, and implementing certain evaluation and
compensation policies; and (ii) narrow decisions in evaluating, compensating, and promoting
specific employees.
As to the broad policy decisions, the Plaintiffs allege that Sandia Lab’s evaluation system
disadvantages women. See Complaint ¶¶ 24-32, at 6-7. It follows, according to the Plaintiffs,
that Sandia Labs violated the NMHRA by intentionally discriminating against women:
Sandia has engaged in an intentional, company-wide, and systematic policy,
pattern, and/or practice of discrimination against its female employees. Sandia has
intentionally discriminated against Plaintiffs and the Class in violation of the New
Mexico Human Rights Act by, among other things:
a. Utilizing a biased performance rating system;
b. Utilizing a biased compensation system;
c. Utilizing a biased promotion system; and
d. Failing to take reasonable and adequate steps to prevent and correct the
use of unreliable, unvalidated, and/or illegitimate criteria to determine the
terms and conditions of employment.
23
As mentioned supra at 44, there are three exceptions to the general rule that the federal
enclave doctrine bars state laws enacted after the federal enclave is established: “1) where
Congress has, by statute, provided a different rule; 2) where the state explicitly retained the right
to legislate over specific matters at the time of cession; and 3) where minor regulatory changes
modify laws existing at the time of cession.” Allison v. Boeing Laser Tech. Servs., 689 F.3d at
1237. None of those exceptions apply in this case, and indeed the Plaintiffs have not argued that
they apply.
- 46 -
These company-wide policies are intended to and do have the effect of:
a. Denying Plaintiffs and Class Members business opportunities
because of their gender;
b. Compensating them less because of their gender;
c. Failing to promote them because of their gender;
d. Evaluating their performance more negatively because of their
gender; and
e. Providing them with inferior terms and conditions of
employment as a result of discriminatory performance measures
that systematically disadvantaged them because of their gender.
Complaint ¶¶ 93-94, at 20-21. The Plaintiffs also argue that Sandia Labs’ policies have had an
“unlawful disparate impact on women” in violation of the NMHRA. Complaint ¶ 104, at 22. As for
the NMFPWA, the Plaintiffs allege that “Sandia has discriminated against employees on the basis of
sex by paying wages to female employees at a rate less than the rate paid to male employees for work
of equal skill, effort, and responsibility.” Complaint ¶ 108, at 22.
According to the Plaintiffs, Sandia Labs conducts an annual performance evaluation process
in which employees are “organized into peer groups to be rated against one another in so-called
‘Centers,’ which are collections of several managers’ employees. Supervisors attend these meetings
and present the merits of their own employees as compared to the other supervisors’ employees.”
Complaint ¶ 28, at 6-7. The “supervisors to rank employees from worst to best using a performance
rating from 1 through 5, with 1 being worst, and 5 being best” and “[o]nly a certain percentage of
employees in a defined peer group may be assigned certain ranks -- for example, only a certain
percentage of employees may receive a 5.” Complaint ¶ 25, at 6. The Plaintiffs identify a few flaws
to this system.
One, because the rankings are curved, the process “forces a distribution of
performance ratings outcomes . . regardless of whether there are meaningful performance differences
between individual employees with in a particular peer group.” Complaint ¶ 26, at 6. Second,
- 47 -
because these evaluation process are done in group “Centers,” which are “collections of several
managers’ employees,” an employee “could end up with a poor rating . . . regardless of her actual
performance record and the rank her supervisor originally recommended.” Complaint ¶ 28, at 7.
Third, the managers evaluate employees in part “based on four ‘personality’ or ‘behavior’ factors:
Strategic Thinking, Adapting to Meet Demands, Teaming with Others, and Modelling Personal
Accountability,” which, according to the Plaintiffs, are “invalid and unreliable” factors. Complaint
¶ 27, at 6.
According to the Plaintiffs, this system disadvantages women, because it “create[s]
inaccurate and biased outcomes, especially when they operate within a culture of bias towards
women, as is true in Sandia.”24 Complaint ¶ 31, at 7. For instance, the Plaintiffs contend that
“female employees are particularly adversely impacted by ‘Center’ meetings, where the vast majority
of attending managers are men [and the] proportion of men in management roles only increases at
higher levels of the organization.” Complaint ¶ 30, at 7.
As for individualized decisions, the named Plaintiffs allege many specific discriminatory
decisions. Kennicott, for instance, alleges that she sought another Sandia Lab position but
learned that a less qualified male employee was already hired for the job before the position was
advertised. See Complaint ¶ 54, at 11-12. Kennicott also alleges that, after she made a gender
discrimination complaint to superiors, male managers retaliated against her by not hiring her to
24
The Plaintiffs assert that the “personality” or “behavior” factors -- Strategic Thinking,
Adapting to Meet Demands, Teaming with Others, and Modeling Personal Accountability -- are
“invalid and unreliable and disadvantage women.” Complaint ¶ 27, at 6. Although the Plaintiffs
do not explain precisely why evaluation employees on those factors in particular disadvantage
women, the Court can imagine a theory that these factors, at the very least, provide biased
managers -- whom the Plaintiffs allege are mostly men -- the means or avenues to apply those
biases to female employees’ disadvantage. For example, Kennicott specifically alleges that her
manager “engaged in . . . gender-based critiques of her communication and teamwork skills,
noting that she had a reputation for being ‘difficult’” and advised her to be “‘softer’ in her
speech,” Complaint ¶ 58, at 12-13 -- critiques that, conceivably, may not levied in the same way
against male employees.
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another position, “expressing concerns about unspecific negative ‘behaviors,’” and not reducing
her workload while she underwent cancer treatment, rating her as a 3 after years of receiving 4
ratings. Complaint ¶ 55-59, at 12. See also id. ¶¶ 113-116, at 23. Kennicott also alleges that
mangers made “gender-based critiques of her communication and teamwork skills.” Complaint
¶ 58, at 12-13.
Garcia alleges that her reviews “have not fully recognized her contributions” and that she
is paid less than men with “significantly less seniority and experience.” Complaint ¶ 66-67, at
15. She contends that “[c]omments within her reviews have revealed a culture of sexism at
Sandia.” Complaint ¶ 68, at 15. She asserts that “[g]ender-based stereotypes about at Sandia”
such that she is not offered projects involving travel, and employees presume that she does not
know how to operate power tools. Complaint ¶ 69, at 15-17.
Phelps alleges that “less qualified and less experienced male colleagues rose through the
ranks must faster than she did. They were offered greater leadership opportunities, and in
approximately 2009, one of the peers Ms. Phelps mentored was promoted over her. In the years
that followed, male colleagues and supervisors excluded Ms. Phelps from meetings, and
supervisors specifically asked her to perform, in their words, ‘low visibility’ work.” Complaint
¶ 73, at 16-17.
Phelps also contends that she has been paid less than similarly situated
colleagues. See Complaint ¶ 74, at 17.
A.
THE ADVERSE EMPLOYMENT DECISION IS WHERE SANDIA LABS
MAKES
DETERMINATIONS
ON
COMPENSATION
AND
PROMOTIONS.
Camargo states that, for the federal enclave jurisdiction to apply in an employment
discrimination case, “the adverse employment decision must have been made on federal territory,
because the locus of decision-making is where such a tort arises.” Camargo, 2010 WL 3516186,
at *2 (citing Lawler v. Miratek, Corp., 2010 WL 743925, at *3-4). When it comes to decisions
- 49 -
to fire or not hire, the decisionmaking’s locus is a fairly straightforward inquiry. When the
allegedly discriminatory decision relates to a policy, however, the locus is harder to pin down.
The Court does not believe that the locus of decision in this case for the Plaintiffs’ statelaw claims would be where Sandia Labs’ employees created the performance evaluation policy.25
Writing a performance evaluation policy harms no one if it is not approved and implemented.
Likewise, the Court does not believe that the locus of decision in this case is necessarily where a
policy is approved. Sandia Labs asserts that the place of decision is where the Vice President of
HR & Communications officially approved the performance evaluation policy.
See Supp.
Response at 6; Tr. at 8:25-9:9 (Gordon). The Vice President can stamp “APPROVED” over a
printed-out copy of a proposed performance evaluation process all he or she likes; the officially
approved process is still several steps away from affecting anyone. Although the Vice President
may be the ultimate authority for how Sandia Labs will evaluate its employees, that Vice
President may, for example, change his or her mind before moving forward with the plan. In that
case, there is no harm to anyone.
The next question is whether the adverse employment decision is the one that a manager
makes when rating an employee pursuant to Sandia Labs’ performance evaluation policy, or
whether the adverse employment decision is when compensation and promotions decisions are
made pursuant to those ratings.
The Court concludes that a discriminatory employee
performance rating system harms an employee only when the employer uses the rating’s results
to determine compensation and promotion. The NMHRA states that is unlawful to “refuse to
hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms,
25
The record suggests that Sandia Labs’ Compensation Group was involved in creating
the employee performance evaluation process. See supra n.14.
- 50 -
conditions or privileges of employment against any person otherwise qualified because of . . . [a
person’s] sex.” N.M. Stat. Ann. § 28-1-7(a). Those rules implicate discriminatory personnel
decisions and not necessarily discriminatory evaluations. Just as officially approving a policy
does not, at that moment, affect employees, rating employees based on that policy does not affect
those employees until the employer uses the results to make decisions on raises, promotions,
demotions, or terminations.
The question would then become where Sandia Labs made
decisions affecting the Plaintiffs’ pay and career paths.
B.
THE RECORD DOES NOT SHOW WHERE SANDIA LABS MADE
DETERMINATIONS
ON EMPLOYEE COMPENSATION AND
PROMOTIONS.
Surprisingly, the record does not reveal where decisions on employees’ pay and
promotions are made. The Plaintiffs have framed the place of decision dispute over where
decisions are made regarding policies.
Thus the record shows that the Compensation
Group -- which has operated on Kirtland Air Force Base for all relevant time periods, see Supp.
Response at 2; HR Chart at 1-20 -- administers Sandia Labs’ performance evaluation process and
analyzes the results for gender-based outcome disparities, see Bars Depo. at 53:11-3; id. at
53:4-9. The record shows that the Vice President of H&R Communications -- who has worked
on the Kirtland Air Force Base for all relevant time periods, with the possible exception of May,
2017, see Supp. Response at 5; HR Chart at 1-21 -- has final approval of Sandia Labs’ policies
on compensation, promotions, antidiscrimination, and performance evaluations, see Supp.
Response at 6; Baros Dep. at 104:23-105:1 (Baros); id. 105:2-10 (Levin-Gesundheit, Baros); id.
at 105:25-106:2-3.
The record shows that Talent Acquisition -- which has operated off of
Kirtland Air Force Base for all relevant time periods, see Supp. Submission at 3-4; HR Chart at
10 -- works with the compensation department and hiring managers to set salaries for new hires,
see Baros Depo. at 216:8-12 (Baros). The record shows that Talent Management -- which has
- 51 -
operated on and off Kirtland Air Force Base at various times, see HR Chart at 1-12 -- trains
Sandia Labs’ employees on antidiscrimination policies, see Supp. Submission at 7; Baros Depo.
at 207:5-21, 208:7-11 (Levin-Gesundheit, Baros). The record does not show, however, where
Sandia Labs looks at individual employees’ performance evaluation rankings and managers’
comments and makes compensation or promotion decisions based on those results.
Consequently, even if the Court applied Camargo’s place of decision rule in this case, the Court
would not be able to determine whether the Plaintiffs’ state claims challenge allegedly
discriminatory decisions made on or off the federal enclave.26 Because Sandia Labs has the
burden to show, on a motion for summary judgment, that it is entitled to judgment as a matter of
law, the Court would deny the motion if it applied the Camargo rule.
The Plaintiffs’ specific complaints do not clearly indicate where the alleged actions took
place. Many of their allegations relate to managers’ decisions to assign review scores and/or
make evaluation comments, see Complaint ¶ 52, at 11 (alleging that Kennicott has not received
top review score of 5 despite contributing equally or surpassing male peers); id. ¶ 58, at 12
(alleging that, “after she raised concerns of gender discrimination,” Kennicott received an
26
The Plaintiffs argue that, because they challenge Sandia Labs’ policies, the decision
place at issue is where those policies were created and/or managed. See, e.g., Response at 2
(“[T]he challenged common policies and practices at the heart of this class action appear to have
been created and/or monitored off federal land.”); Post-Hearing Response at 4 (arguing that the
Plaintiffs do not challenge managers’ decisions but rather the “systematic discrimination against
women as a class by way of four company-wide policies”); id. at 4-5 (“Plaintiffs have even
shown how the named Plaintiffs’ individual allegations stem from specific, challenged
companywide policies.”). Company policies may violate employment discrimination laws, and
employers may be liable for creating those policies, but, when a court looks to Camargo to
determine whether the federal enclave doctrine applies, the critical question is where the adverse
employment decision happened. 2010 WL 3516186, at *2 (considering where an employer
made the decision to terminate an employee). There is no sound reason to consider the place
where an employer drafts or approves a policy as the critical adverse employment decision,
given that additional decisions are necessary -- e.g., decisions to terminate or to not promote an
employee -- before anyone is harmed.
- 52 -
evaluation score of 3); id. ¶ 68, at 15 (alleging that Garcia never received a 5 score on her
employee evaluations); id. ¶ 68, at 15 (contending that “[c]omments within [Garcia’s] reviews
have revealed a culture of sexism at Sandia”), yet the record does not establish where managers
typically make those decisions, nor do the Complaint’s allegations indicate where managers
made those specific decisions.
Many allegations relate to where Sandia Labs makes decisions on hiring, promoting, and
salary, see Complaint ¶ 54, at 11-12 (alleging that Kennicott sought another Sandia Lab position,
but learned that a less qualified male employee was already hired for the job before the position
was advertised); id. ¶ 56, at 12 (alleging that a “male manager informed [Kennicott] that he did
not want to select her” for a “technical leadership opportunity” because of her pending equal
employment opportunity complaint); id. ¶ 67, at 15 (alleging that Garcia is paid less than men
with “significantly less seniority and experience”); id. ¶ 69, at 15 (alleging that Garcia is not
offered project opportunities that involve traveling); id. ¶ 73, at 16-17 (alleging that “less
qualified and less experienced male colleagues rose through the ranks must faster than [Phelps]
did,” and that “supervisors specifically asked her to perform, in their words, ‘low visibility’
work”); id. ¶ 73, at 17 (contending that Phelps was never promoted to “Distinguished Level”); id.
¶ 74, at 17 (contending that Phelps has been paid less than similarly situated colleagues), yet the
record does not establish where Sandia Labs typically make those decisions, see supra at 51, nor
do the Complaint’s allegations indicate where they made the specific decisions relating to the
Plaintiffs.
The Plaintiffs’ remaining allegations relate to various acts or statements, see Complaint
¶ 59, at 12 (alleging that Kennicott’s manager forced her to work excessive hours while she
underwent cancer treatment); id. ¶ 58, at 12-13 (alleging that mangers made “gender-based
- 53 -
critiques of [Kennicott’s] communication and teamwork skills”); id. ¶ 68, at 15 (contending that
Garcia has been told that she can “never compete” with “younger men’s education” or with
“older men’s experience”); id. ¶ 69, at 15-17 (alleging that other employees presume that Garcia
does not know how to operate power tools with which she has years of experience), yet the
Complaint does not specify where these acts or statements were made.27
In sum, the Court cannot determine where Sandia Labs made the allegedly adverse
employment decisions against the Plaintiffs, because the pleadings and the record do not clearly
indicate where Sandia Labs made decisions on compensation and promotions. Accordingly,
Sandia Labs has not met its burden of showing that it is entitled to judgment on the state law
claims, if the Camargo rule applies. Thus, while the Court will grant Sandia Labs’ Motion, the
Court concludes that, if the Camargo rule applied, it would not grant summary judgment on the
Plaintiffs’ state-law claims. The Court suspects, however, that if and when it has a more robust
record, most, if not all, of the state law claims would fall within the federal enclave even with the
Camargo rule.
IT IS ORDERED that (i) the Defendant’s Motion to Dismiss State Law Claims, filed
March 17, 2017 (Doc. 14), is granted; and (ii) the state law claims that Plaintiffs Lisa A.
Kennicott, Lisa A. Garcia, and Sue C. Phelps assert in the Class Action Complaint, filed
February 7, 2017 (Doc. 1), are dismissed with prejudice.
27
A good guess for a lot of these events is, of course, that they happened on Kirtland Air
Force Base, where the named Plaintiffs work or worked, but the Court cannot say that -- if
Camargo rules applied -- Sandia Labs has made that showing.
- 54 -
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Anne Brackett Shaver
Michael Ian Levin-Gesundheit
Shira J. Tevah
Kelly Maureen Dermody
Lin Yee Chan
Tiseme Gabriella Zegeye
Lieff Cabraser Heimann & Bernstein, LLP
San Francisco, California
--and-Adam T. Klein
Cheryl-Lyn Bentley
Elizabeth Stork
Outten & Golden LLP
New York, New York
Attorneys for the Plaintiffs
Grace E. Speights
Krissy A. Katzenstein
Michael S. Burkhardt
Morgan, Lewis & Bockius LLP
Washington, D.C.
--and-Scott D. Gordon
Jeffrey L. Lowry
Paola Viviana Jaime
Stephanie Latimer
Theresa W. Parrish
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Albuquerque, New Mexico
Attorneys for the Defendant
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