Campos v. Las Cruces Nursing Ctr.

• Citation: 828 F.Supp.2d 1256
• Decision Date: 30 September 2011
• Docket Number: No. CIV 11–0096 JB/LAM.,CIV 11–0096 JB/LAM.
• Parties: Rosaura CAMPOS, Edna Espinoza and Sofia Gonzalez, Plaintiffs, v. LAS CRUCES NURSING CENTER, Thi of New Mexico at Las Cruces, LLC, Thi of New Mexico, LLC, Fundamental Administrative Services, LLC and Kenneth Schultz, Defendants.
• Court: U.S. District Court — District of New Mexico

828 F.Supp.2d 1256

Rosaura CAMPOS, Edna Espinoza and Sofia Gonzalez, Plaintiffs,

v.LAS CRUCES NURSING CENTER, Thi of New Mexico at Las Cruces, LLC, Thi of New Mexico, LLC, Fundamental Administrative Services, LLC and Kenneth Schultz, Defendants.

No. CIV 11–0096 JB/LAM.

United States District Court, D. New Mexico.

Sept. 30, 2011.

Daniela Labinoti, Law Firm of Daniela Labinoti, P.C., El Paso, TX, for Plaintiffs.

Trent A. Howell, Samantha M. Jarrett, Jackson Lewis, LLP, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Plaintiffs' Complaint, in Whole or in Part, Pursuant to Rules 12(b)(1) and 12(b)(6), filed February 4, 2011 (Doc. 3) (“Motion”). The Court held a hearing on July 29, 2011. The primary issues are: (i) whether the Plaintiffs Rosaura Campos, Edna Espinoza, and Sofia Gonzalez properly detailed in Plaintiffs' First Amended Complaint (dated January 4, 2011), filed January 28, 2011 (Doc. 1, Ex. 2) (“Amended Complaint”), the specifics of the exhaustion of their administrative remedies; and (ii) whether each of the Plaintiffs has exhausted her administrative remedies under the New Mexico Human Rights Act, N.M.S.A.1978, § 28–1–7 (“NMHRA”), against all of the Defendants—Las Cruces Nursing Center, THI of New Mexico at Las Cruces, LLC, THI of New Mexico, LLC, Fundamental Administrative Services, LLC (“FAS”) and Kenneth Schultz.¹ For their NMHRA claims, the Plaintiffs have not sufficiently pled the exhaustion of their remedies in their Complaint, but the Court considered the documents submitted with Plaintiffs' Repsonse [sic] to Defendants' Motion to Dismiss in Whole or in Part and Brief in Support, filed February 16, 2011 (Doc. 5) (“Response”), in determining the Court's subject-matter jurisdiction over the Plaintiffs' claims. The Plaintiffs exhausted their administrative remedies on both their claims under the NMHRA and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17. The Plaintiffs exhausted administrative remedies, however, only for Las Cruces Nursing Center and Shull. ² Accordingly, the Court will grant in part and deny in part the Defendants' motion to dismiss. The Court will dismiss the Title VII claim against Shull. The Court will deny the Motion with respect to the common-law claims under state law against all of the Defendants. THI of New Mexico at Las Cruces, LLC d/b/a Las Cruces Nursing Center shall be substituted as the proper name for Las Cruces Nursing Center and THI of New Mexico at Las Cruces, LLC. Kenneth Shull shall be substituted as the proper name for Kenneth Schultz. The Motion is otherwise denied.

FACTUAL BACKGROUND

All three of the Plaintiffs are citizens of the United States. See Amended Complaint ¶¶ 1–3, at 16–17. Campos worked for the Defendants starting in June 1985. See Amended Complaint ¶ 10, at 18. The Defendants hired Gonzalez and Espinoza in April and October 2009, respectively. See Amended Complaint ¶¶ 11–12, at 18. All three allege discrimination by the Defendants based on national origin, which ended only upon their termination from their employment with the Defendants. See Amended Complaint ¶¶ 13–15, at 18. Campos and Espinoza also allege assault and battery by Shull. See Amended Complaint ¶¶ 27–28, at 21–22.

On March 24, 2010, Campos filed her charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and with the New Mexico Human Rights Division (“NMHRD”).³ See Charge of Discrimination at 5 (dated March 24, 2010), filed February 16, 2011 (Doc. 5, Ex. 2) (“Campos Charge of Discrimination”).⁴ In this charge, Campos listed Las Cruces Nursing Center as the employer she believed discriminated against her and named “Kenneth Shall” as her administrator at her place of employment who discriminated against her. Campos Charge of Discrimination at 5. Campos discussed in the charge how Shull discriminated against her, including making ethnic comments against Hispanic people, making fun of Mexican employees because they do not speak English, and assaulting her. See Campos Charge of Discrimination at 5. Her Dismissal and Notice of Rights from the EEOC was dated July 29, 2010, see Dismissal and Notice of Rights at 3 (dated July 29, 2010), filed February 16, 2011 (Doc. 5, Ex. 2) (“Campos Dismissal and Notice of Rights”), and her Order of Nondetermination from the NMHRD was dated September 16, 2010, see Order of Nondetermination at 1 (dated September 16, 2010), filed February 16, 2011 (Doc. 5, Ex. 2) (“Campos Order of Nondetermination”).

On April 6, 2010, Espinoza filed her charge of discrimination with the EEOC and NMHRD. See Charge of Discrimination at 4 (dated April 6, 2010), filed February 16, 2011 (Doc. 5, Ex. 1) (“Espinoza Charge of Discrimination”). ⁵ In her charge of discrimination, Espinoza listed Las Cruces Nursing Center as her employer and referred to “Kenneth Shull” when stating the particulars of her complaint. Espinoza Charge of Discrimination at 4. Espinoza described Shull's involvement in the discrimination, specifically that he made demeaning comments about a Hispanic housekeeper not knowing English, and that he stated he was demoting her to a part-time position and replacing her with another employee, who is Anglo, for pretextual reasons. See Espinoza Charge of Discrimination at 4. In her Intake Questionnaire filed with the EEOC, Espinoza named Las Cruces Nursing Center and “Kenneth Shull.” Intake Questionnaire at 14 (dated April 6, 2010), filed February 16, 2011 (Doc. 5, Ex. 1) (“Espinoza Intake Questionnaire”). Her Dismissal and Notice of Rights from the EEOC was dated July 28, 2010, and her Order of Nondetermination from the NMHRD was dated January 10, 2011. See Dismissal and Notice of Rights at 2 (dated July 28, 2010), filed February 16, 2011 (Doc. 5, Ex. 1) (“Espinoza Dismissal and Notice of Rights”); Order of Nondetermination at 1 (dated January 10, 2011), filed February 16, 2011 (Doc. 5, Ex. 1) (“Espinoza Order of Nondetermination”).

On September 22, 2010, Gonzalez filed her charge of discrimination with the EEOC and NMHRD. See Charge of Discrimination at 5 (dated September 22, 2010), filed February 16, 2011 (Doc. 5, Ex. 3) (“Gonzalez Charge of Discrimination”). ⁶ In her Charge of Discrimination, Gonzalez listed the names of Las Cruces Nursing Center and “Ken Shall.” Gonzalez Charge of Discrimination at 5. In her charge of discrimination, Gonzalez stated that she overheard Shull making fun of a Hispanic co-worker, Campos, because of her accent and that Shull engaged in other similar conduct. See Gonzalez Charge of Discrimination at 5. Gonzalez completed an EEOC Intake Questionnaire that she dated April 5, 2010, but the EEOC office's timestamp indicates the office did not receive the document until September 14, 2010. See Intake Questionnaire at 11 (dated April 5, 2011), filed February 16, 2011 (Doc. 5, Ex. 3) (“Gonzalez Intake Questionnaire”). Her Notice of Right to Sue (Issued on Request) from the EEOC was dated September 24, 2010, and her Order of Nondetermination from the NMHRD was dated January 10, 2011. See Gonzalez Notice of Right to Sue (Issued on Request) at 3 (dated September 24, 2010), filed February 16, 2011 (Doc. 5, Ex. 3) (“Gonzalez Notice of Right to Sue”); Gonzalez Order of Nondetermination at 1 (dated January 10, 2011), filed February 16, 2011 (Doc. 5, Ex. 3) (“Gonzales Order of Nondetermination”).

PROCEDURAL BACKGROUND

The Plaintiffs filed their Original Complaint in the Third Judicial District Court, Dona Ana County, State of New Mexico on September 23, 2010, and filed Plaintiffs' First Amended Complaint on January 4, 2011. See Plaintiffs' Original Complaint (dated September 23, 2010), filed January 28, 2011 (Doc. 1, Ex. 2); Amended Complaint. In the Amended Complaint, the Plaintiffs alleged against all the Defendants: (i) NMHRA violations; (ii) Title VII violations; (iii) intentional infliction of emotional distress claims; (iv) negligent training/supervision claims; and (v) assault and battery claims. See Amended Complaint ¶¶ 19–28, 25–26, at 1, 20–22. The Defendants removed the matter to federal court on January 28, 2011. See Notice of Removal, filed January 28, 2011 (Doc. 1). On February 4, 2011, the Defendants filed their motion to dismiss pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Motion.

In their Motion, the Defendants argue that the Plaintiffs have failed to exhaust their NMHRA and Title VII administrative remedies against all of the Defendants except Las Cruces Nursing Center. See Motion at 2–4; Defendants' Reply in Support of Motion to Dismiss Plaintiffs' Complaint, Pursuant to Rules 12(b)(1) and 12(b)(6), filed March 21, 2011 (Doc. 8) (“Reply”). The Defendants also argue that the Plaintiffs have failed to allege that they exhausted their NMHRA administrative remedies against all of the Defendants except Las Cruces Nursing Center. See Motion at 2–4; Reply at 1–2. To their Response, the Plaintiffs attached various exhibits which they allege demonstrate that each of them properly complied with the exhaustion requirements. See Response at 1–10. In their Reply, the Defendants argue that the Plaintiffs failed to allege administrative exhaustion as to each of the Defendants. See Reply at 2. They argue that the Plaintiffs did not exhaust their administrative remedies until they received their order of nondetermination from the NMHRD and that the right-to-sue letter from the EEOC is not sufficient to satisfy the exhaustion requirements under New Mexico law. See Reply at 3 n. 3. The Defendants also contend that the Plaintiffs offer no evidence that THI of New Mexico, FAS, and Kenneth Shull were named as individual respondents in any filed charge of discrimination. See Reply at 3. The Defendants also argue that the Defendants did not have an opportunity to answer Gonzalez' administrative charges based on the...