Kirkpatrick v. Yue et al,
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 35 Plaintiff's First Motion to Amend/Correct Complaint and granting 38 Defendants' Motion for Summary Judgment on Claims Asserted Against Jaw Yue and Sarah Yue, Individually. (baw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
TRISTAN L. KIRKPATRICK,
also known as TRISTIN L. ROAN,
JAW YUE and SARAH YUE individually
doing business as PACIFIC RIM LLC.,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s First Motion to Amend/Correct Complaint
(ECF No. 35) and Defendants’ Motion for Summary Judgment on Claims Asserted Against Jaw
Yue and Sarah Yue, Individually (ECF No. 38).
Defendants Jaw and Sarah Yue own and operate Pacific Rim, a bar and restaurant in
Hobbs, New Mexico. Compl., ¶¶ 7-8, ECF No. 1. Plaintiff worked as a bartender there from
November 2014 to February 2018. Id. ¶ 9. Mr. Yue was her immediate supervisor while Mike
Dolorfino was her “other supervisor.” Id. ¶ 10-11.
Plaintiff claims that Dolorfino created – and Defendants turned a blind eye to – a hostile
work environment based on Plaintiff’s sex and race. Id. ¶ 13-14. Dolorfino verbally bullied
Although the record on a motion for summary judgment normally involves the
identification of a factual controversy, here, Defendants’ summary judgment motion is based on
a purely legal issue. Plaintiff similarly identifies no factual dispute in her summary judgment
opposition brief. She instead relies entirely on facts alleged in her complaint. Because the
parties’ summary-judgment pleadings frame the issue as a matter of law, the Court presents the
facts as taken from Plaintiff’s original complaint.
Plaintiff, telling her that she was too old to work as a bartender and calling her an “[expletive]
idiot.” Id. ¶ 14. Dolorfino would “scream[ ] in her face vulgarities” including about her race,
age, and sex, and tried to get her fired by telling Defendants bad things about her. Id. ¶¶ 14, 16.
Dolorfino told Plaintiff’s daughter, who also worked at Pacific Rim, that she would never
amount to “anything but a worthless [expletive],” and ordered her to clean the toilets. Id. ¶ 15.
According to Plaintiff, “the harassment and hostile work environment became more and more
constant” and would occur “almost constantly every day.” Id. ¶ 16.
Plaintiff complained about Dolorfino to Defendants. Id. ¶ 18. Plaintiff met with
Defendants, Dolorfino and Fred Baker, the general manager, to resolve the issues. Id. ¶ 20.
Dolorfino admitted that he harassed Plaintiff about her age, weight, gender, and race, and
admitted to sexually harassing Plaintiff’s daughter-in-law,2 saying it was a “cultural thing.” Id.
¶¶ 21-22. (quotation mark omitted). Even though Defendants twice counseled Dolorfino about
his behavior, they ultimately did nothing to stop him and Dolorfino’s conduct continued. Id. ¶¶
20, 23. Plaintiff also had meetings with Ms. Yue “about the hostile work environment and
discrimination” and Ms. Yue would apologize for Dolorfino’s behavior. Id. ¶ 19.
After Dolorfino falsely accused Plaintiff of drinking on the job, Plaintiff was removed as
a bartender and replaced by a younger female. Id. ¶¶ 24-25. Plaintiff was “forcefully terminated”
because she “could not take [Dolorfino’s harassment and Defendants’ connivance] anymore.” Id.
When Plaintiff was later offered a manager position at another bar, Dolorfino told the
other bar’s employees that hiring Plaintiff would be a mistake. Id. ¶¶ 27-28. Although Plaintiff
accepted the position, she quit within three weeks because Dolorfino and his wife harassed
Plaintiff refers to her “daughter” and “daughter-in-law,” without noting any difference.
Following Plaintiff’s usage, the Court will do the same.
Plaintiff during her shift at her new job and told her they would never stop harassing her. Id. ¶¶
On August 18, 2018, Plaintiff completed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). Defs.’ Ex. 1, ECF No. 36, 8 (EEOC Charge).
She alleged discrimination based on race, sex and national origin discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964 and age discrimination and retaliation in
violation of the Age Discrimination in Employment Act of 1967. Id.
On April 18, 2019, Plaintiff’s counsel requested a right-to-sue letter from the EEOC,
which the agency issued on September 27, 2019. Defs.’ Ex. 2, ECF No. 36, 12; Compl. ¶ 4.
Plaintiff filed her federal complaint on October 28, 2019 asserting the following four claims for
relief: discrimination in violation of 42 U.S.C. §§ 2000e-2, 2000e-33 (Count 1); a Title VII
hostile work environment (Count 2); a claim for “disparate treatment race and sex
discrimination,” Compl. at 7, under Title VII (Count 3); and Title VII retaliation (Count 4).
In April 2020, the Court entered an initial scheduling order and Defendants answered the
complaint. ECF Nos. 11, 12. The parties submitted a joint status report, which the Court adopted,
giving Plaintiff until June 30, 2020, to amend her pleadings. ECF Nos. 19, 22. The Court set
Although Count 1 of Plaintiff’s complaint does not cite the specific subsection on which
she relies, the Court notes that Title VII makes it “an unlawful employment practice for an
employer ... to discriminate 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[.]” 42 U.S.C. § 2000e–2(a). Title VII separately makes it “an unlawful
employment practice for an employer to discriminate against any [employee] ... because he has
opposed any practice made an unlawful employment practice ... or because he has made a
charge” under the subchapter. 42 U.S.C. § 2000e–3(a).
expert disclosure deadlines for September and October 2020 and ordered discovery to end in
December 2020 (the latter deadline was extended to March 2021). ECF Nos. 22, 26.
In anticipation of the November 2020 settlement conference (which ended up getting
rescheduled to December), the parties exchanged position letters. Defendants emphasized in their
letter “that Plaintiff’s non-wage loss compensatory damages and punitive damages were capped
at $50,000” under federal law based on the limited numbers of Defendants’ employees. ECF No.
The December conference also was vacated, and, on January 5, 2021, Plaintiff moved to
amend her complaint, asking for the Court’s permission to add a state-law claim for relief for
employment discrimination under the New Mexico Human Rights Act (NMHRA), N.M. Stat.
Ann. § 28-1-7. According to Plaintiff, she “discovered that she was subject to a cap on her
damages in the Federal Action where[as] she would not have been if she had … [brought] a state
cause of action pursuant to [§ 28-1-7].” ECF No. 35 ¶ 17.4
Defendants oppose the motion to amend. They say that it is untimely and futile.
Defendants also separately moved for summary judgment, arguing that Title VII forbids
individual capacity claims against Sarah and Jaw Yue.
The Court addresses Plaintiff’s motion to amend her complaint, first, and then
Defendants’ motion for summary judgment.
Amending the Complaint Would Be Futile
According to Plaintiff, “[t]here are different rules governing the measure of damages in a
State Action as opposed to the Federal Action.” ECF No. 35 ¶ 16 at 3. Plaintiff provides no legal
citation to those rules, so the Court is unaware of them.
Plaintiff’s motion to amend relies on subparts (a)(2) (“amendments before trial”), and
(c)(1)(B), (“relation back of amendments”) of Fed. R. Civ. P. 15. “Leave to amend under
subsection (a) and relation back under subsection (c) [of Rule 15], while obviously related, are
conceptually distinct.” Arthur v. Maersk Inc., 434 F.3d 196, 202-03 (3d Cir. 2006). “[E]ven if a
proposed amended pleading satisfies Rule 15(c), leave to amend may be denied under Rule 15(a)
if the Court determines that amendment would be ‘unjust’ and leave should not be granted.”
Easley v. Tritt, No. 1:17-CV-930, 2019 WL 4687139, at *2 (M.D. Pa. Sept. 26, 2019) (citation
and quotation marks omitted). Because the Rule 15(a) analysis is dispositive against Plaintiff, the
Court does not address Plaintiff’s relation back argument.
Rule 15(a)(2) provides for liberal amendment of pleadings, instructing courts to “freely
give leave” to amend “when justice so requires.” “The grant of leave to amend the pleadings
pursuant to Rule 15(a) is within the discretion of the trial court.” Minter vs. Prime Equipment
Co., 451 F.3d. 1196, 1204 (10th Cir. 2006). Subsection 15(a)(2) provides that after a party has
amended a pleading once as a matter of course or the time for amendments of that type has
expired, a party may amend only by obtaining leave of court or if the adverse party consents.
Leave should be “freely give[n] … when justice so requires,” but leave need not be granted on “a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, …
or futility of amendment.” Duncan v. Manager, Dept. of Safety, City and Cnty. of Denver, 397
F.3d 1300, 1315 (10th Cir. 2005).
Defendants are correct that amendment would be futile because, absent an order of
nondetermination from the New Mexico Human Rights Division, Plaintiff has failed to exhaust
her administrative remedies. “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 district-
court lawsuit.” Delopez v. Bernalillo Pub. Sch., No. CV 19-735 JCH-KK, 2021 WL 873354, at
*7 (D.N.M. Mar. 9, 2021) (citing Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 130 N.M. 238, 243,
22 P.3d 1188, 1193)). “[F]ailure to exhaust administrative remedies deprives a district court of
subject matter jurisdiction.” Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109, ¶ 13, 314
P.3d 681, 686 (citing Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 20, 127 N.M. 282, 288,
980 P.2d 65, 71)). “EEOC right-to-sue letters cannot be treated as orders of nondetermination
from the Division.” Id. ¶ 10. The plaintiff has the burden of proving exhaustion of remedies
under the NMHRA. Id. ¶ 11.
Plaintiff has not carried her burden to show exhaustion. Although Plaintiff alleged in her
complaint that she received a right-to-sue letter from the EEOC, she did not allege that she
received an order of nondetermination from the Division. Her complaint therefore does not
establish exhaustion under the NMHRA. Nor does her motion to amend make any mention of a
nondetermination order. Defendants highlighted the lack of a nondetermination order in their
response brief, yet Plaintiff elected to file no reply brief explaining what steps she had taken, if
any, in obtaining a nondetermination order. Thus, Plaintiff’s pleadings, on their face, fail to
establish exhaustion. Her motion to amend is therefore denied as futile.
The Individual Capacity Claims Are Dismissed
Jaw and Sarah Yue move for summary judgment that Plaintiff’s Title VII individual
capacity claims against them are, as a matter of law, prohibited. Summary judgment motions can
appropriately “rais[e] a question of law that the court must decide.” Wilson v. Union Pac. R. Co.,
56 F.3d 1226, 1229 (10th Cir. 1995) (citation and quotation marks omitted). Both parties appear
to agree that Defendants’ motion raises a question of law for the Court to decide. See Haynes v.
Williams, 88 F.3d 898, 898–99 (10th Cir. 1996) (describing as a “purely legal question” whether
an individual supervisor is personally liability under Title VII.)
Defendants are correct that “[u]nder long-standing circuit precedent, supervisors and
other employees may not be held personally liable under Title VII.” Williams v. W.D. Sports,
N.M., Inc., 497 F.3d 1079, 1083 n.1 (10th Cir. 2007). “[S]upervisors may be named in their
official capacity and/or as alter egos of the employer, but just as a means to sue the employer.”
Lewis v. Four B Corp., 211 F. App’x 663, 665 n.2 (10th Cir. 2005). “[T]his procedural
mechanism” may be “superfluous where … the employer is already subject to suit directly in its
own name.” Id. “[A]n individual qualifies as an ‘employer’ under Title VII [solely for purposes
of imputing liability to the true employer] if he or she serves in a supervisory position and
exercises significant control over the plaintiff’s hiring, firing, or conditions of employment. In
such a situation, the individual operates as the alter ego of the employer, and the employer is
liable for the unlawful employment practices of the individual without regard to whether the
employer knew of the individual’s conduct.” Haynes, 88 F.3d at 899 (citation omitted).
Here, the complaint states that it is “brought against Pacific Rim … and Jaw Yue and
Sarah Yue, individually as the sole members of Pacific Rim[.]” Compl. at 1 (capitalization
omitted). The “general allegations” identify Pacific Rim as “[t]he Defendant,” and the Yues as
the “individual members owning” Pacific Rim. Id. ¶¶ 6, 7. Thus, Pacific Rim is subject to suit in
its own name. To the extent that Plaintiff improperly sues Jaw and Sarah Yue in their
individually capacities, those claims are dismissed with prejudice.
For the reasons stated herein, it is ORDERED that Plaintiff’s First Motion to
Amend/Correct Complaint (ECF No. 35) is DENIED and that Defendants’ Motion for Summary
Judgment on Claims Asserted Against Jaw Yue and Sarah Yue, Individually (ECF No. 38) is
GRANTED. Plaintiff’s claims asserted against Defendants Jaw Yue and Sarah Yue in their
individual capacities are DISMISSED with prejudice.
The Clerk of Court is directed to add Pacific Rim LLC to the case caption as the sole
remaining Defendant. The docket should continue to reflect that Pacific Rim LLC is represented
by the same defense counselors for Jaw and Sarah Yue (i.e. the law firm of Atwood, Malone,
Turner & Sabin, P.A.).
IT IS SO ORDERED.
SENIOR UNITED STATES DISTRICT JUDGE
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