Flores et al v. City of Farmington et al
Filing
133
MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. The 89 Motion for Partial Judgment on the Pleadings against Reyes Flores for Failure to State a Claim and Memorandum in Support Thereof is GRANTED IN PART and DENIED IN PART pursuant to the findings set forth in this Memorandum Opinion and Order. (ve)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
REYES FLORES, and
PAT FLORES,
Plaintiffs,
vs.
1:18-cv-00402 KWR-JFR
CITY OF FARMINGTON,
STEVEN HEBBE, NICK BLOOMFIELD,
MATTHEW VEITH, TOM SWENK, and
TAFT TRACY, all in their individual capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon the individual Defendants’ Motion for
Judgment on the Pleadings against Plaintiff Reyes Flores (Doc. 89). Having reviewed the parties’
pleadings and the relevant law, the Court finds that the Defendants’ motion is well-taken in part
and, therefore, is GRANTED IN PART and DENIED IN PART.
BACKGROUND
A.
Introduction.
Plaintiffs, officers with the Farmington Police Department, allege that Defendants
discriminated against them on the basis of their religion. Plaintiffs Reyes and Pat Flores are
brothers.
They both have self-described “long held deep-rooted Christian beliefs.”
The
Farmington Police Department (“FPD”) and employees were aware of their Christian faith. All
individual Defendants appear to be employees of the Farmington Police Department or City of
Farmington.
B.
Plaintiff Reyes Flores.
On September 6, 2016, Defendant Veith notified Plaintiff Reyes that an Internal Affairs
investigation had been initiated against him. The notice did not provide any details on the
allegations or alleged violations. On September 21, 2016, Lt. Crum notified Reyes that he was
being transferred from the training division to the patrol division and prohibited him from leading
any informal or formal training in the department.
As part of the internal investigation, Defendant Veith interviewed Reyes at least four times,
during which he referenced Reyes’ religious beliefs, the expression of those beliefs in the work
place, and the inappropriateness of sharing those religious beliefs in the workplace. Plaintiff Reyes
led certain trainings as a Field Officer Trainer. Plaintiff Reyes believed he was being accused of
forcing religious beliefs on his trainees or subordinates while in the workplace.
The internal affairs investigation disclosed that Reyes did not force, coerce, compel, or
require any department employee to follow his religious beliefs. However, the investigation found
that Reyes engaged in discriminatory conversations with trainees and subordinates. The proposed
discipline included (1) removal from his training position and revocation of his Field Officer
Trainer status; (2) removal from the SWAT team; (3) a written reprimand (4) and other discipline.
Plaintiff Reyes filed a grievance. The discipline was subsequently reduced to counseling.
Plaintiff Reyes continued to pursue his grievance but was not successful. He alleges he has been
denied subsequent opportunities based on this discipline and subsequently received the worst
performance evaluation of his career.
On May 25, 2017 Plaintiff Reyes Flores filed a Charge of Discrimination form with the
New Mexico Department of Workforce Solutions, Human Rights Bureau.
In the charge document, Plaintiff Reyes asserted he was discriminated against because of
his religion and gender, subject to a hostile work environment, and retaliated against. He asserts
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that as a result of an investigation on or around December 27, 2016, he was punished and lost his
training officer position, reassigned to patrol officer, among other punishments. He asserted he
was demoted and lost money.
C.
Claims Asserted.
In amended complaint filed March 4, 2019 Plaintiffs assert the following fourteen claims:
Count I: 42 U.S.C. § 1983: First Amendment Retaliation.
Count II: 42 U.S.C. § 1983: Fourteen Amendment Equal Protection / Hostile Work
Environment.
Count III: 42 U.S.C. § 1983: Fourteen Amendment / Procedural Due process.
Count IV: 42 U.S.C. § 1983: Fourteenth Amendment Equal Protection / Religious
Discrimination.
Count V: Title VII: Religious Discrimination.
Count VI: Title VII: Retaliation.
Count VII: Title VII: Hostile Work Environment.
Count VIII: New Mexico Human Rights Act: Religious Discrimination.
Count IX: New Mexico Human Rights Act: Retaliation.
Count X: New Mexico Human Rights Act: Hostile Work Environment.
Count XI: Breach of an Implied Contract of Employment.
Count XII: Breach of the Implied Covenant of Good Faith and Fair dealing.
Count XIII: Violation of New Mexico Whistleblower Protection Act.
These claims have been the subject of several dispositive motions and several have already
been dismissed. At issue in the current motion are the Title VII (Counts V-VII) against the
individual Defendants and the New Mexico Human Rights Act claims (Counts VIII-X) against the
individual Defendants.
LEGAL STANDARD
A motion for judgment on the pleadings generally follows Rule 12(b)(6) standards. Rule
12(b)(6) permits the Court to dismiss a complaint for “failure to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a plaintiff’s complaint
must have sufficient factual matter that if true, states a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“Iqbal”). As such, a plaintiff’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544 (2007) (“Twombly”). All well-pleaded factual allegations are “viewed in
the light most favorable to the nonmoving party.” Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). In ruling on a motion to dismiss, “a court should
disregard all conclusory statements of law and consider whether the remaining specific factual
allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.
DISCUSSION
Defendants seek dismissal of the Title VII claims (Counts V-VII) against the individual
defendants. Defendants also seek dismissal of the New Mexico Human rights act claims (Counts
VIII-X) against the individual Defendants except Chief Steven Hebbe.
I.
No Title VII claims are asserted against individual Defendants.
Defendants moved to dismiss the Title VII claims against the individual defendants.
Those claims against the individual defendants were already dismissed by Chief Judge Johnson in
a February 8, 2019 order (Doc. 33) and Plaintiff Reyes Flores affirms that he does not assert Title
VII claims against individuals. See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996), cited
in Palmer v. Kaiser Found. Hosps. Tech. Risk Office, No. 18-1028, 2018 WL 5096316, at *2 (10th
Cir. Oct. 18, 2018) (“in this circuit a plaintiff cannot proceed with Title VII claims against an
individual”). Therefore, to the extent they were asserted against individuals, the Title VII claims
(Counts V-VII) are dismissed as to the individual Defendants.
II.
Court declines to dismiss New Mexico Human Rights Claims against individual
Defendants Swenk, Veith, and Hebbe.
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Defendants also moved to dismiss the New Mexico Human Rights Act claims (Counts
XIII-X) against the individual defendants for failure to exhaust. The individual defendants argue
that the alleged failure to name them in the charge document filed with the New Mexico Human
Rights Bureau means that the claims are not exhausted against them.
The New Mexico Human Rights Act (“NMHRA”) makes it an unlawful discriminatory
practice for:
[A]n 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....
N.M. Stat. Ann. 1978, § 28-1-7. To bring an NMHRA suit in district court, a plaintiff is required
to exhaust the administrative grievance process with respect to all defendants named in the districtcourt lawsuit. See Luboyeski v. Hill, 117 N.M. 380, 383, 872 P.2d 353, 356 (1994)
To exhaust administrative remedies under the NMHRA, a person must: (i) file a complaint
with the 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. See Mitchell-Carr v. McLendon, 127 N.M. 282, 287, 980 P.2d 65, 70 (1999). The statute
further provides that the written complaint must “state the name and address of the person alleged
to have engaged in the discriminatory practice, all information relating to the discriminatory
practice and any other information that may be required.” N.M.S.A. 1978, § 28-1-10(A).
However, the New Mexico Supreme Court has held that the claim form in use is defective
because it does not have a place to name individual defendants nor does it instruct claimants to
name individual defendants. The New Mexico Supreme Court concluded that claimants using this
form generally need not list individual defendants to exhaust their claims. Lobato v. State Env't
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Dep't, 2012-NMSC-002, ¶ 15, 267 P.3d 65, 69 (form defective and claimant exhausted claims
where form did not instruct filers to include names of any individuals involved).
Plaintiff Reyes Flores provided (1) the charge document (doc. 25-1), (2) the affidavit
attached to the charge document (Doc. 91-2) which listed the individual defendants, and (3) an
affidavit asserting he was not represented by counsel when he filed the charge document (Doc. 911).
Here, Plaintiff Reyes Flores alleged that he filed the charge document with the Human
Rights Bureau. Doc. 35 at ¶10. Both parties agree the Court can consider the charge document
filed because it is central to the complaint and no party disputes its authenticity. Doc. 25-1; Martin
v. Cent. States Emblems, Inc., 150 F. App'x 852, 857 (10th Cir. 2005) (Generally, a “court may
consider documents referred to in a complaint, without converting a motion to dismiss into a
motion for summary judgment, if the documents are central to the plaintiff’s claim and the parties
do not dispute their authenticity.”), citing County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d
1031, 1035 (10th Cir.2002).
As in Lobato, Plaintiff Reyes Flores filed a charge document (Doc. 25-1) which only
included a space to name entities and did not include a space to name individuals or instruct
claimants to name individuals. Therefore, under Lobato Plaintiff need not have named individuals
to administratively exhaust his New Mexico Human Rights Act claims against the individual
defendants.
Some courts in this district have cabined the Lobato exception to the exhaustion rule to
only pro se or “unwary claimants.” See, e.g., Stailey v. Gila Reg'l Med. Ctr., No. CV 16-0485
JCH/GJF, 2017 WL 3602057, at *8 (D.N.M. Feb. 21, 2017) (discussing cases). Defendants argue
that Plaintiff failed to allege that he was pro se or an “unwary claimant” under Lobato when he
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filed his claim, and therefore failed to allege sufficient facts that he exhausted his administrative
remedies. The Court does not believe the pleading standards are so heightened as to require such
specific allegations under Rule 12(b)(6). Here, the Court finds that Plaintiff pled sufficient facts
to plausibly state that he exhausted his claims.
Defendants argue that Plaintiff Reyes Flores is not an unwary claimant because he is a law
enforcement officer and should have known he had name individuals on charge document to
exhaust his New Mexico Human Rights Act claims. Defendants provide no support for the
argument that a law enforcement officer would be familiar with the filing process of EEOC and
Human Rights Board complaints. There is nothing in the complaint to suggest that Plaintiff Reyes
Flores was represented by counsel when he filed the charge with the New Mexico Department of
Workforce Solutions, Human Rights Bureau.
Moreover, a complaint is not dismissed for failure to exhaust unless such failure is clear on
the face of the complaint. See, e.g., Morales v. Runyon, 844 F. Supp. 1435, 1436 (D. Kan. 1994)
(failure to exhaust Title VII administrative remedies not clear on face of complaint). Here, Plaintiff
alleged that he filed the charge document and exhausted his claims. Doc. 35 at ¶ 10. It is not clear
on the face of the complaint that Plaintiff did not exhaust his claims. Therefore, dismissal for lack
of exhaustion would generally be inappropriate.
Plaintiff alternatively argues that he did exhaust his claims by listing the individual
defendants in an affidavit attached to the charge document. Doc. 91-2; see Stailey v. Gila Reg'l
Med. Ctr., No. CV 16-0485 JCH/GJF, 2017 WL 3602057, at *8 (D.N.M. Feb. 21, 2017) (plaintiff
exhausted claims where he named individual defendants in affidavit attached to charge document).
However, because the parties dispute the authenticity of the affidavit, the Court cannot consider it
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under Rule 12(b)(6). It is unclear whether this affidavit was the one attached to the charge
document, given that they were signed with different dates.
In sum, Plaintiff Reyes Flores pled sufficient factual allegations to assert a plausible claim
that he exhausted his administrative remedies. The remaining arguments and disputes should be
addressed on summary judgment.
CONCLUSION
Plaintiff Reyes Flores does not assert Title VII claims (Counts V-VII) against the individual
defendants, and those claims have alternatively been dismissed. Moreover, the Court declines to
dismiss the New Mexico Human Rights Act Claims (Counts VIII-X) at this procedural stage
against individual Defendants Hebbe, Veith, and Swenk.
IT IS THEREFORE ORDERED that the Defendants’ Motion for Judgment on the
Pleadings against Reyes Flores (Doc. 89) is hereby GRANTED IN PART and DENIED IN
PART for reasons described in this Memorandum Opinion and Order.
______________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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