Cortez v. E.E.O.C.

• Decision Date: 16 October 2007
• Docket Number: No. CIV 06-1198 JB/ACT.,CIV 06-1198 JB/ACT.
• Citation: 585 F.Supp.2d 1273
• Parties: Robert CORTEZ, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and John Wright, individually and in his official capacity, as an employee of the Equal Employment Opportunity Commission, Defendants.
• Court: U.S. District Court — District of New Mexico

585 F.Supp.2d 1273

Robert CORTEZ, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and John Wright, individually and in his official capacity, as an employee of the Equal Employment Opportunity Commission, Defendants.

No. CIV 06-1198 JB/ACT.

United States District Court, D. New Mexico.

October 16, 2007.

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Augustine M. Rodriguez, Jr., Rodriguez Law Firm, Albuquerque, NM, for the Plaintiff.

John W. Zavitz, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for the Defendants Equal Employment Opportunity Commission, John Wright, in his official capacity, and the United States of America.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss the EEOC and John Wright in His Official Capacity, and Memorandum in Support, filed July 23, 2007 (Doc. 4). The Court held a hearing on the motion on September 17, 2007. The primary issues are: (i) whether Plaintiff Robert Cortez may maintain a cause of action against the Defendants Equal Employment Opportunity Commission ("EEOC") and John Wright in his official capacity in federal court; (ii) whether the Court should replace by interlineation the EEOC and Wright, in his official capacity, with the United States; (iii) whether Cortez may maintain his common-law tort claims against the United States under 28 U.S.C. § 2674's private function analogue for liability; (iv) whether the Federal Tort Claims Act's discretionary-function bars any common-law tort claims; (v) whether Cortez can state a Bivens claim against the EEOC and Wright in his official capacity; and (vi) whether Cortez can bring a claim for unconstitutional taking under the Little Tucker Act. Because of sovereign immunity, and Congress' limited waivers of immunity, the Court will dismiss Cortez' claims against the EEOC and Wright, in his official capacity, as facially invalid under rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court will also adopt Cortez' request, in part, to change the case's caption to replace by interlineation the EEOC and Wright in his official capacity with the United States. The Court will dismiss the common-law tort claims in Cortez' First through Fourth Causes of Action, because 28 U.S.C. § 2674 is not satisfied when there is no analogous private function duty or liability in New Mexico for the EEOC's alleged negligence. And even if some theory of private liability were applicable, the FTCA's discretionary-function exception applies and bars jurisdiction over Cortez' Complaint against the United States. Further, Cortez cannot stale a Bivens action against the EEOC and Wright, in his official capacity, because there is not waiver of sovereign immunity for such claims. Finally, the Court will dismiss any claim for an unconstitutional taking because Cortez has made no effort to show that he is attempting to invoke the Court's jurisdiction under the Little Tucker Act.

FACTUAL BACKGROUND

The EEOC did not file a civil action on Cortez' behalf, but issued a right to sue letter to Cortez after completing its investigation and efforts at conciliation. See Complaint ¶ 44, at 6, filed Dec. 7, 2006 (Doc. 1), 29 U.S.C. § 626(e); 29 C.F.R. § 1626.18. Cortez was then free to file a private civil action within ninety days after the EEOC issued the right-to-sue-letter. See 29 U.S.C. §§ 626(c)(t), 626(e). Cortez filed an action, and private counsel represented Cortez in the civil action. See Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Entry of Appearance, filed Feb. 17, 2004 (Doc. 5).

In Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Cortez filed a complaint against Wal-Mart Stores, Inc. for race and age discrimination under Title VII. See Complaint for Racial and Age Discrimination Under Title VII, filed Oct. 30, 2003 (Doc. 1). On January 14, 2005, the Honorable Bruce D. Black issued a Memorandum Order and Opinion which dismissed some of Cortez' claims for failure to exhaust. See Memorandum Order and Opinion at 4-6, filed Jan. 14, 2005 (Doc. 50). The claims dismissed for failure to exhaust included failure to promote and constructive discharge. See id. On May 19, 2005, a judgment was entered in favor of Cortez following a jury trial on his remaining claims. See Judgment, filed May 19, 2005 (Doc. 94). Cortez recovered from Wal-Mart for back pay, liquidated damages, interest accrued on the award from the date of that Judgment's entry, and costs. See id. On January 23, 2007, the Judgment was satisfied. See Satisfaction of Judgment, filed Jan. 23, 2007 (Doc. 128).

The alleged factual basis of Cortez' tort claims is that Wright, as the investigator for the EEOC on Cortez' charges of age discrimination, did not amend Cortez' charges or file additional charges of discrimination on Cortez' behalf with respect to a number of possible subsequent, additional claims—failure to promote, hostile workplace, retaliation, and constructive discharge. See Complaint for Damages, and Other Relief ("Complaint") ¶¶ 44-51, at 6-7, filed Dec. 7, 2006 (Doc. 1). As a result, these claims were barred for Cortez' failure to exhaust as discrete acts required by the Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and the Tenth Circuit's opinion in Martinez v. Potter, 347 F.3d 1208 (10th Cir.2003). See Complaint ¶ 46, at 6. Cortez alleges that he informed Wright of different instances of a failure to promote, retaliation, and forced resignation, but Wright failed to amend or file additional charges of discrimination. See Complaint ¶¶ 47-49 at 6-7. Cortez also claims EEOC failed to instruct him that "he had 300 days to file additional charges of discrimination with the EEOC from the date of the last act of discrimination by his employer." Complaint ¶ 50, at 7.

PROCEDURAL BACKGROUND

Cortez' First through Fourth Causes of Action attempt to state common-law tort claims against the EEOC and Wright, in his official capacity, for alleged negligence in conducting their investigations of Cortez' charges of discrimination that resulted in some of his claims being dismissed by the Honorable Bruce Black in CIV No. 03-1251. See Complaint ¶¶ 53-72, at 7-10. In Cortez' Fifth Cause of Action, he attempts to state a constitutional claim against the EEOC and Wright, in his official capacity, for damages. See Complaint, ¶¶ 73-79, at 10-11. Wright is also sued individually for his alleged negligence in investigating Cortez' claims. See Complaint at 1. The Assistant United States Attorney representing the United States on behalf of the EEOC and Wright, in his official capacity, has not entered an appearance for Wright individually. See Notice of Entry of Appearance, filed July 12, 2007 (Doc. 3).

Cortez opposes this motion. See Plaintiff Robert Cortez' Response in Opposition to the United States of America's Motion to Dismiss Defendants EEOC and John Wright, and Supporting Memorandum ("Cortez' Response"), filed Aug. 21, 2007 (Doc. 5). The United States, on behalf of the EEOC and Wright, in his official capacity, requests that the Court dismiss Cortez' Complaint under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and for failure to state a claim against these Defendants. See Motion to Dismiss the EEOC and John Wright in his Official Capacity, and Memorandum in Support ("USA's dismissal motion"), filed July 23, 2007 (Doc. 4). Cortez argues that, because "the EEOC is in charge of discrimination charges, the filing of a party's claim is not discretionary." Cortez' Response at 7. He also argues that issuing a right to sue letter at the end of an EEOC investigation and, "[d]eciding to file one charging document when the Supreme Court mandated separate charges for discreet acts of discrimination is not discretionary." Cortez' Response at 7. Cortez submitted Ortiz v. United States Border Patrol, 39 F.Supp.2d 1321 (D.N.M.1999) (Black, J.) (, as supplemental briefing. See Notice of Attachment, filed Sept. 17, 2007 (Doc. 12)).

STANDARDS FOR DETERMINING MOTIONS FILED UNDER RULES 12(b)(1) AND 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Cortez contends that, because the EEOC and Wright submitted exhibits their motion to dismiss was converted into one for summary judgment. See Cortez' Response at 5 (citing rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure); Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). The Court does not rely upon outside materials submitted by the EEOC and Wright in support of the USA's dismissal motion in considering whether dismissal is appropriate under either rule 12(b)(1) or rule 12(b)(6). See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (stating that "the failure to convert a 12(b)(6) motion to one for summary judgment where a court does not exclude outside materials is reversible error unless the dismissal can be justified without considering the outside materials.").

Issues about the United States' sovereign immunity, however, also implicate the federal district court's jurisdiction. If Congress has not waived sovereign immunity, the federal court does not have jurisdiction to hear the claim. The court must thus determine whether the Complaint states a cognizable cause of action against the United States to determine jurisdiction.

A. RULE 12(...