Ortiz v. Wingard, 00-1439-LCS.

• Citation: 173 F.Supp.2d 1155
• Decision Date: 24 October 2001
• Docket Number: No. 00-1439-LCS.,00-1439-LCS.
• Parties: Delbert H. ORTIZ, Plaintiff, v. John L. WINGARD, Housing Authority of Las Cruces, and City of Las Cruces, Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1155

173 F.Supp.2d 1155

Delbert H. ORTIZ, Plaintiff, v. John L. WINGARD, Housing Authority of Las Cruces, and City of Las Cruces, Defendants.

No. 00-1439-LCS.

United States District Court, D. New Mexico.

October 24, 2001.

COPYRIGHT MATERIAL OMITTED

For Plaintiff: G. Greg Valdez, Esq., Las Cruces.

For Defendants: Daniel D. James, Esq., Holt & Babington, PC, Las Cruces.

MEMORANDUM OPINION

SMITH, United States Magistrate Judge.

THIS MATTER is before the Court on Defendant City of Las Cruces' Motion for Summary Judgment (Doc. 29), filed on August 21, 2001. The Court, acting upon consent and designation pursuant 28 U.S.C. § 636, and having considered the submissions of counsel, relevant law, and being otherwise fully advised, finds that this Motion is well-taken in part and should be GRANTED IN PART.

I. Background.

The following statement of facts is set forth in the light most favorable to Plaintiff, with all reasonable inferences from the record drawn in his favor. See Clanton v. Cooper, 129 F.3d 1147, 1150 (10th Cir. 1997). In his Amended Complaint, Plaintiff alleges that he is Hispanic and has been employed by the City of Las Cruces (City) and the Housing Authority of the City of Las Cruces (HACLC) since 1977. (Am. Compl. ¶¶ 5 and 10.) Plaintiff seeks damages for alleged discrimination based on his national origin, retaliation for resisting discrimination, and breach of implied employment contract. (Am.Compl.¶¶ 24-41.) Plaintiff alleges that Defendant Housing Authority is an agency of the City, or is a political subdivision of the City, or is a corporation established by the City and derives its charter from the City for the purpose of providing low cost housing to the residents of the City. (Am. Compl.¶ 3.) Plaintiff claims that he was denied promotional opportunities due to his national origin, that his position was reclassified and he was demoted in retaliation for asserting his Title VII rights, and that the demotion was a breach of implied employment contract. (Am.Compl.¶¶ 13-34.)

On October 16, 2000, Plaintiff filed his Complaint in this Court pro se, alleging discrimination on the basis of national origin under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e. (Doc. 1.) Defendants filed Motion for a More Definite Statement on January 29, 2001. (Doc. 7.) On January 31, 2001, the Court approved a stipulated Order granting the Motion for a More Definite Statement, and allowing Plaintiff thirty days in which to file an amended complaint. (Doc. 10.) On March 2, 2001, Plaintiff filed his Amended Complaint through counsel. (Doc. 12.) In the Amended Complaint, Plaintiff alleges discrimination in employment, retaliation for resisting discrimination, and breach of implied employment contract against all Defendants. On July 17, 2001, Plaintiff's claims against John L. Wingard were dismissed by stipulated Order. (Doc. 28.) On August 21, 2001, Defendant City moved for summary judgment on the Title VII claims.

The City argues that it is entitled to summary judgment because Plaintiff failed to exhaust administrative remedies for his Title VII claims with respect to the City, and because the City is not Plaintiff's employer within the meaning of Title VII. Plaintiff responds that there are disputed issues of material fact that preclude summary judgment.

In support of its Motion for Summary Judgment, the City has submitted the affidavits of John L. "Jack" Wingard, Executive Director of HACLC and James A. Ericson, City Manager and Chief Executive Officer for the City. In his affidavit, Mr. Wingard states that Plaintiff has been an employee of HACLC since January 2, 1977 to present. (Wingard Aff. ¶ 8.) Plaintiff's supervisor, Tom Hassel is an employee of HACLC, not the City. (Wingard Aff. ¶ 9.) Mr. Wingard further states that HACLC received no funds from the City, has its own accounting department, and issues financial statements separate from those of the City. (Wingard Aff. ¶ 4.) In addition, HACLC has its own administrative offices and no City employee works in the HACLC office. (Wingard Aff. ¶ 5.) HACLC has its own personnel manager, and hires its own employees. (Wingard Aff. ¶ 6-7.) HACLC personnel decisions are not reviewable by the City. (Wingard Aff. ¶ 7.) The salaries and benefits of HACLC employees are paid with HACLC funds, and not with City funds. (Wingard Aff. ¶ 7.)

In his affidavit, Mr. Ericson states that the City does not fund the HACLC and does not participate in any HACLC employment decisions. (Ericson Aff. ¶ 7.) Mr. Ericson further states that HACLC employees are not City employees, the City does not determine the wage rates of HACLC employees, or pay taxes on their behalf. (Ericson Aff. ¶ 8.) The City does not evaluate the performance of HACLC employees. (Ericson Aff. ¶ 9.) The City has its own personnel manual that does not apply to HACLC employees. (Ericson Aff. ¶ 10.) The City has its own personnel manager who does not address HACLC employee issues. (Ericson Aff. ¶ 11.) The City has its own accounting department that is not involved with HACLC. (Ericson Aff. ¶ 12.) Mr. Ericson states that Plaintiff is not employed by the City, is not paid by the City, and that no City employee has supervisory power over Plaintiff. (Ericson Aff. ¶ 14-15.) Finally, Mr. Ericson states that the City and HACLC are audited separately. (Ericson Aff. ¶ 13.)

II. Standard

A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, as well as any affidavits "show that there is no genuine issue as to any material fact." Id. When applying this standard, the Court examines the record and reasonable inferences in the light most favorable to the non-moving party. See Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Serve., 165 F.3d 1321, 1326 (10th Cir.1999).

The movant bears the initial burden of establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The movant's initial burden may be discharged by showing there is an absence of evidence to support the non-moving party's case. See Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets its burden, the burden shifts to the non-moving party to demonstrate a genuine issue for trial on a material matter. See McGarry v. Pitkin Co., 175 F.3d 1193, 1201 (10th Cir.1999).

III. Analysis

In his Amended Complaint, Plaintiff alleges discrimination in employment, retaliation for resisting discrimination, and breach of implied employment contract against the HACLC and the City. The Court construes Plaintiff's discrimination and retaliation allegations as claims under Title VII and his breach of implied contract allegations as a state law claim brought under this Court's supplemental jurisdiction.

Title VII makes it unlawful for an employer to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment on the basis of national origin or other factors. See 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits retaliation against employees for asserting their rights under Title VII, providing that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

A. Whether Plaintiff's Title VII claims against the City are barred by failure to exhaust administrative remedies with respect to the City.

The City argues that it is entitled to summary judgment on the Title VII claims because Plaintiff failed to exhaust administrative remedies with respect to the City. Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing suit under Title VII. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996). To exhaust administrative remedies, a plaintiff must timely file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e) and (f)(1). The charge must be in writing, signed, verified and must contain a clear and concise statement of the facts. See 29 C.F.R. §§ 1601.9; 1601.12(3). The purposes of the exhaustion requirement are to provide notice of the alleged violation to the charged party, and to provide the EEOC with the opportunity to conciliate the claim. See Seymore v. Shawver & Sons, Inc., 111 F.3d at 799. In making the exhaustion determination, the Court must liberally construe the EEOC charge. See Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983); Harrell v. Spangler, Inc., 957 F.Supp. 1215, 1219 (D.Kan.1997).

In his EEOC charges of March 19, 1999 and July 15, 1999, Plaintiff identified the "Housing Authority of Las Cruces" as the employer that discriminated against him. (Wingard Aff., Exs. A and B.) The City was not separately named in either charge. Generally, "only parties previously identified as respondents in charges filed with the EEOC are subject to subsequent liability under Title VII." Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1122 (5th Cir....