Kibler v. Genuine Parts Company et al

Filing 47

MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack denying 11 MOTION to Dismiss . (jn)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KATHLEEN KIBLER,
Plaintiff,
v.

No. CIV 17-0486 RB/SCY

GENUINE PARTS COMPANY d/b/a NAPA, or
as NAPA AUTO PARTS, MARTIN VALENTI,
and MICAH KESSLER,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Individual Defendants’ Motion to Dismiss Based
on Failure to Exhaust Administrative Remedies, filed on May 3, 2017. (Doc. 11.) Jurisdiction
arises under 28 U.S.C. § 1332(a). 1 Having considered the submissions of counsel and relevant
law, the Court will DENY the motion.
I.

Factual and Procedural Background
At issue in this suit are Plaintiff’s claims of age and gender discrimination and retaliation

in violation of the New Mexico Human Rights Act (NMHRA), N.M. Stat. Ann. §§ 28-1-1–15
(1978). Plaintiff worked for Defendant Genuine Parts Company (NAPA) for almost 39 years,
most recently as a wholesale manager. (Doc. 1-1 (Compl.) ¶¶ 8, 12; see also Doc. 1-8-C.)
Plaintiff received numerous awards and recognitions during her career, including “an award for
her 2015 sales at an award ceremony in February 2016 . . . .” (Compl. ¶¶ 9, 13.) Nevertheless,
NAPA terminated Plaintiff on May 13, 2016, allegedly for “performance” issues. (Id. ¶¶ 7, 13.)
1

Plaintiff, a resident of New Mexico, filed suit against Defendant Genuine Parts Company, a Georgia corporation,
Defendant Kessler, a citizen of Arizona, and Defendant Valenti, a citizen of Colorado. (See Doc. 1 ¶¶ 9.) Plaintiff
alleged in her state complaint that Mr. Valenti is a citizen of New Mexico, but Mr. Valenti submitted a Declaration
to establish he became a citizen of Colorado at the latest in January 2017, before Plaintiff filed her lawsuit. (See
Doc. 1-7.) Plaintiff has not disputed Defendant Valenti’s citizenship in this action, nor is there any dispute that the
amount in controversy is at least $75,000. See 28 U.S.C. § 1332(a).

Plaintiff disputes that she was terminated for performance issues and asserts that “[h]er
termination was the end result of a series of discriminatory actions taken against her by
[Defendants] Valenti and Kessler that began . . . in July 2014.” (Id. ¶ 14.)
Plaintiff filed a Charge of Discrimination with the EEOC on May 27, 2016. (Doc. 1-8-C.)
The Charge of Discrimination form directs the charging party to name “the Employer, Labor
Organization, Employment Agency, Apprenticeship Committee, or State or Local Government
Agency That I Believe Discriminated Against Me or Others.” (Id. at 1.) Plaintiff named “NAPA
Albuquerque DC” and listed an address in Albuquerque, New Mexico. (Id.) Plaintiff did not
specifically name Defendants Valenti or Kessler in this section. (Id.) Under the “Particulars”
section of the form, Plaintiff described the discrimination as follows:
Statement of Harm: I was hired at NAPA on September 6, 1977, as a Packer, and
most recently held the position of Wholesale Manager. During my tenure, I was
the first salesperson to hit over $1 million sales in the calendar year. Between
1977 and 2014, I never received any write ups or disciplinary actions. I was a
loyal and dedicated employee, during my nearly 39 years of employment with the
company. I have received numerous recognition and awards, including multiple
plaques for quota performance and top employee. On or about February, 2016, I
was introduced by Albuquerque to by [sic] our General Manager as the “Top
Dog[,]” . . . and with all my accomplishments with the company I often felt as
though I was not a valuable employee. On or about July 28, 2015, I was called
into Mr. Valenti’s office to have a meeting with him and Mr. Kessler, a month
later, on August 31, 2015, Mr. Kessler, informed me that Mr. Valenti would be
placing me on a Performance Improvement Plan (PIP) for 120 days in regards to
my communication skills and customer follow up. During the 120-days
performance review period, I was constantly being called into meetings with Mr.
Valenti and Mr. Kessler, and I was accused of discussing my work problems with
my peers and customers. This caused an abundant amount of undue stress and a
hostile work environment and it in which [sic] resulted in me seeking medical
attention. I talked to Ms. Alberta Santistvan [sic], HR, about my situation and she
advise [sic] me to elevate my concern to [] Ms. Quin Clifton, Western Division
HR Manager. Ms. Quin took over my complaint and came down to do an
investigation. During her investigation I turned over numerous emails and
documents, including a picture of a penis with sperm shooting out of it that Mr.
Kessler, had drawn on a company vehicle while on a business trip that I attended.
Following the investigation, there were no changes made to my work environment

2

. . . . My PIP ended on December 31, 2015, without incident, and without prior
notification on May 13, 2016, I was terminated.
(Id. at 1–2.)
Plaintiff submitted an affidavit and stated that she did not receive “legal advice in the
course of filing the Charge of Discrimination.” (Doc. 40-1 ¶ 2.) Plaintiff retained her current
attorney, Mr. Timothy L. White, on June 13, 2016. (See Doc. 19-2; see also Doc. 40-1.) Plaintiff
stated in her affidavit that she “first contacted Mr. White about the possibility of representing me
on June 6, 2016 via email, but [she] did not speak to Mr. White until June 8, 2016, briefly, and
only to set an appointment to meet in person.” (Doc. 40-1 ¶ 3.)
Defendants submitted an affidavit from Ms. Alberta Santistevan, an employee of NAPA,
who stated that on September 28, 2015, Plaintiff said she “had consulted with a lawyer about
work-related concerns.” (Doc. 42-1 ¶¶ 1–3.) Ms. Santistevan stated that Plaintiff sent her an
email on June 3, 2016, which read: “Alberta, I am requesting additional time before I make a
decision on the ‘Severance Agreement and General Release’ papers due to the fact that my
lawyer is still reviewing them.” (Id. ¶ 4.) Ms. Santistevan further stated that Plaintiff sent her
another email on June 8, 2016, on which she copied Mr. White and said: “I had to retain a
different lawyer do [sic] to the fact that I was not getting any responses back from the original
that was looking over the agreement. Is it possible to ask for additional time for my new lawyer
to review?” (Id. ¶ 5.)
On June 14, 2016, Mr. White emailed Ms. Santistevan, and stated:
We represent Ms. Kibler in the claims she is prepared to bring against your
company and Martin Valenti individually arising out of her termination. You
probably have seen by now the Charge of Discrimination she has filed with
EEOC, and her claims are in summary as stated in that Charge. We are in the
process of amending that Charge in order to assert the claims against Mr. Valenti
individually, but should your company desire to try to resolve this matter
privately without the need of the lawsuit that will follow, please contact this
3

office. If your company does not wish to discuss resolving this now by agreement,
I will be filing suit by June 30 and amending later to bring the age and sex
discrimination claims represented in the Charge. Please respond at your earliest
opportunity.
(See Doc. 21-1 at 3.) Plaintiff never filed an amended Charge. (See Doc. 21 at 3.)
On September 1, 2016, Mr. White sent an 18-page letter to Ms. Lisa M. Szafranic,
counsel for Defendants NAPA, Valenti, and Kessler, “to see if your client is interested in
resolving this now before we go through the entirety of the administrative process with EEOC.”
(See Docs. 1-8 ¶ 2–3; 1-8-A at 5.) 2 Mr. White outlined the bases of Plaintiff’s claims for age and
gender discrimination and retaliation and described numerous instances of allegedly
discriminatory conduct by Defendants Valenti and Kessler. (Doc. 1-8-A at 5–22.) Mr. White
concluded, “My client has endured far too much at these mens’ [sic] hands, and would prefer to
resolve this now before suing your client and these two men, Valenti and Kessler, individually . .
. .” (Id. at 22.) 3
Plaintiff asserts that “[o]n October 7, 2016, the parties attempted a mediation with EEOC,
after which” Mr. White emailed shared counsel for all three Defendants regarding the action
“Kathie Kibler v. NAPA, Valenti and Kessler.” 4 (Doc. 19 at 2.) The EEOC issued a Notice of
Right to Sue on January 17, 2017 (Doc. 1-8-D), and an Order of Non-Determination on February
3, 2017 (Doc. 1-8-E). The Order of Non-Determination identified the case as “Kathleen Kibler
vs NAPA Albuquerque DC,” the same parties Plaintiff identified in her initial Charge of
Discrimination form. (See Docs. 1-8-C; 1-8-E.)

2

The Court refers to the CM/ECF numbering system, as Mr. White’s letter is not numbered. Page 5 of Doc. 1-8-A
corresponds to the first page of Mr. White’s letter.
3
Again, the Court refers to the CM/ECF numbering system. Page 22 of Doc. 1-8-A corresponds to the last page of
Mr. White’s letter.
4
Plaintiff does not clarify which parties participated in the mediation, nor did Plaintiff attach a copy of the
referenced email to her response. (Doc. 19 at 2.) Defendants did not, however, dispute that Plaintiff’s attorney sent
the referenced email. (See Doc. 21.)

4

Plaintiff filed suit against the three Defendants in the Second Judicial District Court,
County of Bernalillo, State of New Mexico, on March 13, 2017, alleging: (1) discrimination on
the basis of sex; (2) discrimination on the basis of age; and (3) retaliation, all in violation of the
NMHRA. (Compl.) Defendants removed the case to this Court on April 26, 2017, on the basis of
diversity. (Doc. 1.) The Individual Defendants now bring this Motion to Dismiss Based on
Failure to Exhaust Administrative Remedies. (Doc. 11.)
II.

Legal Standard
The Individual Defendants bring their Motion under Rules 12(b)(6) and 12(b)(1). (See id.

at 3.) The core of Defendants’ argument is that Plaintiff’s alleged failure to exhaust has deprived
this Court of subject matter jurisdiction under Rule 12(b)(1); they do not argue that Plaintiff has
failed to state a claim under Rule 12(b)(6). (See Doc. 11.) The Court finds it appropriate,
therefore, to analyze the Motion under Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1).
Motions to dismiss under Rule 12(b)(1) “generally take one of two forms: (1) a facial
attack on the sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a
challenge to the actual facts upon which subject matter jurisdiction is based.” Campos v. Las
Cruces Nursing Ctr., 828 F. Supp. 2d 1256, 1265 (D.N.M. 2011) (quoting Ruiz v. McDonnell,
299 F.3d 1173, 1180 (10th Cir. 2002) (internal citations omitted)). “On a facial attack, a plaintiff
is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court
must consider the complaint’s allegations to be true.” Id. (quoting Alto Eldorado Partners v. City
of Santa Fe, No. Civ. 08-0175 JB/ACT, 2009 WL 1312856, at *8 (D.N.M. Mar. 11, 2009), aff’d,
634 F.3d 1170 (10th Cir. 2011) (internal citations omitted)).
“But when the attack is factual, a district court may not presume the truthfulness of the
complaint’s factual allegations” and may “allow affidavits, other documents, and a limited

5

evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court’s reference to evidence outside the pleadings does not convert the motion to a
Rule 56 [summary-judgment] motion.” 5 Id. (quoting Alto Eldorado Partners, 2009 WL
1312856, at *8–9). Here, Defendants attack the facts upon which subject matter jurisdiction is
based—that is, whether Plaintiff exhausted her claims against them.
It is clear that jurisdictional facts must ultimately be established by a preponderance of
the evidence where they are disputed. Campos, 828 F. Supp. 2d at 1271. “The district court is
given discretion in determining the procedure to employ in considering a motion to dismiss for
lack of jurisdiction. . . .” Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174
(10th Cir. 1992) (quotation and internal citation Romitted). “Facts regarding jurisdictional
questions may be determined by reference to affidavits, . . . by a pretrial evidentiary hearing, . . .
or at trial when the jurisdictional issue is dependent upon a decision on the merits.” Id. (citations
omitted).
“When a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits
and other written materials, the plaintiff need only make a prima facie showing.” Id. (quoting
Behagen v. Amateur Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S.
1010 (1985) (internal citations omitted)). “The ‘well pled facts’ of the complaint must be
accepted as true if uncontroverted by the defendant’s affidavits, and factual disputes at this initial

5

A Court is also “required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56
summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.”
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted). “The jurisdictional question is
intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides
the substantive claim in the case.” Id. (citing Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987)). Here,
jurisdiction is premised on diversity (see Doc. 1), but Plaintiff may not bring her claims under the NMHRA against
the Individual Defendants unless she exhausted those claims. See Benavidez v. Sandia Nat’l Labs., 212 F. Supp. 3d
1039, 1065 (D.N.M. 2016). The Court finds that the issue of whether Plaintiff exhausted her claims under the
NMHRA, that is, whether the Individual Defendants had sufficient notice of her claims, is not so intertwined with
the merits of the case that the Court is required to convert Defendants’ Motion into one under Rule 12(b)(6) or Rule
56.

6

stage must be resolved in the plaintiff's favor when the parties present conflicting affidavits.” Id.
(citations omitted). Where the court holds a hearing, the plaintiff’s burden is increased, and she
“has the burden to prove facts supporting jurisdiction by a preponderance of the evidence.” Id.
(citations omitted).
Where, as here, the Court chooses to decide the issue on the written materials alone using
a prima facie standard, Plaintiff must prove “by the end of trial the jurisdictional facts by a
preponderance of the evidence.” Id. (citations omitted). In Federal Deposition Insurance Corp.
v. Oaklawn Apartments, for example, “[t]he district court resolved Appellants’ claims of lack of
personal jurisdiction and insufficient service by reviewing the pleadings and affidavits” on a
motion to dismiss and finding that the defendants had waived those defenses. 959 F.2d at 172,
174. The court did not hold an evidentiary hearing. 959 F.2d at 172, 174–76. In a separate order
entered on the same day, the district court granted summary judgment to the plaintiff-appellee on
the merits. Id. at 173. The defendants appealed, arguing that the court erred in failing to find it
had jurisdiction by a preponderance of the evidence. Id. at 172. The Tenth Circuit reversed,
finding that the district court had erred by deciding the issue of personal jurisdiction on the
pleadings and affidavits, but never deciding the issue using the correct preponderance of the
evidence standard. Id. at 174–76.
While the vast majority of the cases to discuss the prima facie/preponderance of the
evidence standards for jurisdictional questions address motions under Rule 12(b)(2) (personal
jurisdiction), the Court finds it appropriate to apply the same reasoning to Defendants’ motion
brought under 12(b)(1) (subject matter jurisdiction). See, e.g., Colo. First Const. Co. v. U.S.
Dep’t of Hous. & Urban Dev., No. CIV.A. 05-CV-00755-L, 2006 WL 355224, at *3 (D. Colo.
Feb. 15, 2006); Damian v. Int’l Metals Trading & Investments, Ltd., 243 F. Supp. 3d 1308 (S.D.

7

Fla. 2017); Ferrero v. Henderson, 244 F. Supp. 2d 821, 826 (S.D. Ohio 2002); Societe de
Conditionnement en Aluminium v. Hunter Eng’g Co., Inc., 655 F.2d 938, 942 (9th Cir. 1981)
(finding that “[t]he principles that [the Ninth Circuit] applied to determinations of personal
jurisdiction in Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1284–86 (9th
Cir. 1977), are equally applicable to determinations of subject matter jurisdiction”). The Court
will deny Defendants’ Motion under the prima facie standard, and Plaintiff’s claims will be
subject to dismissal if she does not prove the jurisdictional facts by a preponderance of the
evidence at a later hearing.
III.

Analysis
A.

Law regarding the exhaustion of administrative remedies under the NMHRA

The NMHRA makes it unlawful 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. § 28-1-7(A). “The NMHRA allows individuals to bring a lawsuit in the
appropriate district court[,]” not only against the employer, but also against individual defendants
in their personal capacity. Benavidez v. Sandia Nat’l Labs., 212 F. Supp. 3d 1039, 1065, 1066
(D.N.M. 2016); see also Sonntag v. Shaw, 22 P.3d 1188, 1193 (N.M. 2001). The NMHRA
requires that the individual first exhaust the available administrative remedies before bringing
suit. Benavidez, 212 F. Supp. 3d at 1065; Luboyeski v. Hill, 872 P.2d 353, 355 (N.M. 1994). “To
exhaust administrative remedies under the NMHRA, a person must: (i) file a complaint with the
8

[New Mexico Human Rights Division (NMHRD)] or the EEOC making sufficient allegations to
support the complaint; and (ii) receive an order of nondetermination from the NMHRD.”
Campos, 828 F. Supp. 2d at 1267 (citing Mitchell-Carr v. McLendon, 980 P.2d 65, 71 (N.M.
1999)). The New Mexico Supreme Court has found that a district court may lack subject matter
jurisdiction to hear an individual’s claims under the NMHRA if the person fails to exhaust the
administrative remedies. Mitchell-Carr, 980 P.2d at 71 (citations omitted).
B.

Plaintiff has exhausted her administrative remedies against the Individual
Defendants.

The Individual Defendants argue that Plaintiff failed to exhaust her administrative
remedies against them, because she did not specifically name them in the appropriate section on
her Charge of Discrimination form. (Doc. 11 at 3–5.) The NMHRA “demands that ‘a plaintiff
must exhaust his or her administrative remedies against a party before bringing an action in
district court against that party.’” Muffoletto v. Christus St. Vincent Reg’l Med. Ctr., 157 F.
Supp. 3d 1107, 1114 (D.N.M. 2015) (quoting Sonntag, 22 P.3d at 1193 (subsequent and internal
citations omitted)). Because Plaintiff listed only NAPA in the section of the Charge of
Discrimination form that directs the charging party to name “the Employer, Labor Organization,
Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I
Believe Discriminated Against Me or Others,” Defendants Kessler and Valenti argue that
Plaintiff has failed to exhaust her claims against them. (Doc. 11 at 3–5.) Plaintiff disagrees and
contends that authority from this district and the New Mexico Supreme Court supports a finding
that she has exhausted her claims against the Individual Defendants. (See Doc. 19.)
The New Mexico Supreme Court has examined the same Charge of Discrimination form
Plaintiff used and found that because it asks for the name and address of the employing agency,
but does not ask for information about any individuals whom the filer may have claims against,
9

the form does not “provide a fair and adequate opportunity to exhaust administrative remedies
against individual actors under the NMHRA . . . .” 6 Lobato v. State Env’t Dep’t, 267 P.3d 65,
67–68 (N.M. 2011). Because information about the names and addresses of such individuals “is
critical to preserving judicial remedies . . . under the NMHRA[,]” the form “creates a trap for
unwary claimants to forfeit their statutory rights and judicial remedies.” Id. at 68. Thus, while the
claimant in Lobato had neither named nor provided addresses for the individuals he intended to
assert claims against, but had described the individuals’ allegedly discriminatory behavior on the
Charge of Discrimination form, the New Mexico Supreme Court held that he had sufficiently
exhausted his administrative remedies as to those individuals. See id. at 68–69; Lobato v. N.M.
Env’t Dep’t, No. 09-CV-1203 BB/RLP, 2011 WL 13137326, at *1 (D.N.M. June 14, 2011).
After Lobato, courts have taken care to define an “unwary claimant” as one who filed a
Charge of Discrimination form “without the advice of counsel.” See, e.g., Benavidez, 212 F.
Supp. 3d at 1084, 1086 (discussing that there was “no indication that, by the time Benavidez
signed and submitted the Charge of Discrimination form, she had not already consulted with an
attorney[,]” and noting that plaintiff conceded she had not exhausted her remedies as to the
individual defendants) (quotation omitted); Muffoletto, 157 F. Supp. 3d at 1114 (noting that the
claimant “had already consulted with an attorney” before she filed the Charge of Discrimination
form and finding that she did “not fit the New Mexico Supreme Court’s description of ‘unwary’
plaintiffs”) (citations omitted).
There is no question that Plaintiff named Defendants Kessler and Valenti in the body of
her May 27, 2016 Charge of Discrimination form and described some of the allegedly

6

It appears that the NMHRD has published an updated form as of July 2017. See
https://www.dws.state.nm.us/Portals/0/DM/LaborRelations/Human_Rights_Complaint_Form_0717.pdf available at
https://www.dws.state.nm.us/Labor-Relations/Human-Rights/Complaint-Investigation-Process (last visited Sept. 1,
2017).

10

discriminatory behavior. (See Doc. 1-8-C at 1–2.) The issue is whether Plaintiff consulted with
an attorney in connection with the filing of her Charge of Discrimination form. Plaintiff
submitted a sworn affidavit to establish that she “received no legal advice in the course of filing
the Charge of Discrimination form.” (Doc. 40-1 ¶ 2.) The Court finds Plaintiff’s affidavit
compelling—it provides prima facie evidence to show that she was an unwary claimant.
Defendants contest her assertion. (See Doc. 42.) They submitted an affidavit to establish
that Plaintiff discussed consulting with an attorney as far back as September 28, 2015, and that
she consulted an attorney with respect to making “a decision on the ‘Severance Agreement and
General Release’ papers” in early June 2016. (Doc. 42-1 ¶¶ 3, 4.) These statements do not
specifically controvert Plaintiff’s sworn affidavit. An unwary claimant is one who filed a Charge
of Discrimination form without the advice of counsel. That Plaintiff may have consulted an
attorney to help her decide whether to sign a severance agreement with NAPA does not
necessarily mean that the attorney also helped her file her Charge of Discrimination form. The
Court finds Plaintiff has made a prima facie showing that she had not received advice from an
attorney about her Charge of Discrimination form. Under Lobato, the Court finds Plaintiff was
an “unwary claimant” at the time she filed the form.
The Individual Defendants argue, however, that because Plaintiff had the benefit of
counsel after she filed her form, she was not truly an unwary claimant. (Doc. 21 at 5–10.)
Defendants believe that the ultimate query is whether Plaintiff ever had a fair and adequate
opportunity to exhaust. (Id.) In other words, Defendants argue that Plaintiff failed to exhaust
because she did not file an amended Charge of Discrimination form after she retained her
attorney.

11

Defendants believe that the court’s decision in Welch v. City of Albuquerque, No. 11-cv0700 KG-SCY, Mem. Op. & Order, Doc. 267 (D.N.M. April 4, 2017), supports their position. 7
(Doc. 21 at 5.) In Welch, the court declined to grant the individual defendants summary judgment
on this issue, because there was no evidence regarding whether the plaintiff was represented at
the time she filed her Charge of Discrimination form, or where she found that form. 8 Welch is
easily distinguishable, both because the court was examining the issue using a summary
judgment standard, and because Plaintiff has carried her burden under Rule 12(b)(1) here to
show that she did not have an attorney’s assistance in filling out her own form. (See Doc. 40-1.)
Ultimately, Defendants have not pointed to any statutory language or case law that would
require Plaintiff to file an amended complaint in such a circumstance.
In deciding whether Plaintiff should have been required to file an amended form after she
retained counsel, the Court turns to the purpose behind requiring exhaustion: notice. Claimants
are required to exhaust their administrative remedies before bringing suit in order to give notice
to the respondents and to give the respondents “an opportunity to resolve the dispute in
administrative proceedings before the NMHRD, rather than before court as defendants in a
judicial proceeding.” Lobato, 267 P.3d at 68 (citing N.M. Stat. Ann. § 28-1-10(B); 9.1.1.8(H)
7

Defendants also rely on authority discussing exhaustion under Title VII. (Doc. 21 at 2–4 (citing Campos, 82 F.
Supp. 2d at 1276–77; Romero v. Union Pac. R.R., 615 F.2d 1303, 1311–12 (10th Cir. 1980); Holloman v. Tulsa
Gamma Ray, Inc., 2013 WL 4647736, at *1–2 (W.D. Okla. Aug. 29, 2013)). This authority is not binding on the
Court where the issue is exhaustion under the NMHRA.
8
Defendants suggest the decision in Muffoletto v. Christus St. Vincent Regional Medical Center, 157 F. Supp. 3d
1107 (D.N.M. 2015), supports their position. (See Doc. 21 at 5.) In Muffoletto, the court found that the plaintiff was
not an unwary claimant under the Lobato standard, because she had already consulted with an attorney by the time
she filed her form. 157 F. Supp. 3d at 1114. Following this finding, the court discussed language on the NMHRD
website that advises claimants without attorneys to consult NMHRD staff before filing. Id. at 1114–15 (quoting the
following language: “Effective March 1, 2010, parties represented by counsel will be expected to prepare their own
FORMS for initiating a Human Rights Claim. Parties who are not represented by an attorney should contact the
Human Rights Bureau for assistance in completing the necessary paperwork to file a complaint.”) (emphasis added)
(quoting Filing a Complaint of Discrimination, New Mexico Dep’t of Workforce Solutions,
http://www.dws.state.nm.us/Labor–Relations/Human–Rights/Filing–a–Complaint–of–Discrimination). Defendants
admit that there is no evidence Plaintiff obtained her form from that website. (Doc. 21 at 6 n.2.) Even if there was
such evidence, the Court declines to find here that the website language, which says claimants “should contact the”
NMHRD, affirmatively adds such a burden to a claimant.

12

NMAC). Based on this purpose, the New Mexico Supreme Court found in Lobato that “barring
Plaintiff’s judicial remedy solely because he followed explicit and misleading instructions in the
NMHRD’s official complaint form is a far greater injustice than the less significant effect
imposed on Defendants by the lack of formal individual notice in the antecedent administrative
proceedings.” Lobato, 267 P.3d at 68. As in Lobato, Plaintiff’s lawsuit stems from “the very
incidents reported in the” misleading form. See id. at 69. The behavior Plaintiff described in her
form includes “constant” meetings with Defendants Kessler and Valenti and unwarranted
discipline that Plaintiff alleged created a “hostile work environment.” (See Doc. 1-8-C at 1–2.)
Additionally, Plaintiff described an incident in which Defendant Kessler drew a sexually graphic
picture on a company vehicle while on a business trip that Plaintiff attended. (Id. at 2.) Plaintiff
alleged that the date the discrimination began—August 31, 2015—was the same date Defendant
Kessler informed her that Defendant Valenti would place her on a Performance Improvement
Plan. (Id. at 1.)
Defendants argue further that they were denied sufficient notice, because Mr. White’s
June 14, 2016 letter stated that Plaintiff was prepared to bring claims against NAPA “and Martin
Valenti individually . . . .” (Docs. 21 at 8; 9 21-1.) Not only did Mr. White fail to mention Mr.
Kessler, but he also failed to follow through with his statement that he was “in the process of
amending [the] Charge in order to assert the claims against Mr. Valenti individually . . . .” (Doc.
21-1.) If this were the final communication between counsel for the parties, Mr. Kessler might
have a leg to stand on. However, Mr. White sent a second letter on September 1, 2016, and
described Plaintiff’s allegations against Defendants Kessler and Valenti in detail over 18 pages.
(See Doc. 1-8-A at 5–22.) More than half of these allegations involved Mr. Kessler. (See id.) Mr.
White concluded the letter by explaining that his “client has endured far too much at these mens’
9

Defendants misidentify the person Mr. White referred to in the June 14 letter as Mr. Kessler. (Doc. 21 at 8.)

13

[sic] hands, and would prefer to resolve this now before suing your client and these two men,
Valenti and Kessler, individually . . . .” (Id. at 22 (emphasis added).) Shortly after that letter, “the
parties attempted a mediation with EEOC, after which” Mr. White emailed counsel for all three
Defendants regarding the action “Kathie Kibler v. NAPA, Valenti and Kessler.” (Doc. 19 at 2.)
The Court finds that Plaintiff has presented evidence to show that the Individual Defendants had
sufficient notice of the claims pending against them, and there is no evidence the Individual
Defendants have suffered prejudice from Plaintiff’s failure to either name them in the correct
blank on the Charge of Discrimination form, or to file an amended form. For these reasons, the
Court will deny Defendants’ Motion.
IV.

Conclusion
While Plaintiff did not specifically name the Individual Defendants in the appropriate box

on her Charge of Discrimination form, she has made a prima facie showing that she exhausted
her administrative remedies as to both Mr. Valenti and Mr. Kessler. Plaintiff will be required to
establish these jurisdictional facts by a preponderance of the evidence at a later hearing.
THEREFORE,
IT IS ORDERED that Individual Defendants’ Motion to Dismiss Based on Failure to
Exhaust Administrative Remedies (Doc. 11) is DENIED.

___________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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