Gerald v. Locksley

Decision Date06 May 2011
Docket NumberNo. CIV 10–0721 JB/LFG.,CIV 10–0721 JB/LFG.
Citation785 F.Supp.2d 1074,271 Ed. Law Rep. 906
PartiesJohnathan B. GERALD, Plaintiff,v.Mike LOCKSLEY, Board of Regents of the University of New Mexico, and Paul Krebs, Defendants.
CourtU.S. District Court — District of New Mexico


Jill M. Collins, Beall & Biehler, Santiago E. Juarez, Albuquerque, NM and Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM, for Plaintiff.John B. Pound, Mark T. Baker, Jennifer L. Attrep, Long, Pound & Komer, P.A., Santa Fe, NM, for Defendants.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Plaintiff's First Amended Complaint, filed December 6, 2010 (Doc. 23) (“Motion”). The Court held a hearing on January 27, 2011. The primary issues are: (i) whether Plaintiff Johnathan Gerald has adequately set forth allegations to support his claims in his First Amended Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed November 2, 2011 (Doc. 19)(“FAC”); (ii) and whether that Court should allow Gerald to amend his FAC to attempt to plead a hostile work environment claim. The Court dismisses with prejudice Gerald's FAC. The Court grants Gerald leave to amend his FAC to attempt to plead a hostile work environment claim, based on the allegations in his EEOC Charge, filed December 6, 2010 (Doc. 23–1).


Locksley is the head football coach at the University of New Mexico (“UNM”). Defendant Paul Krebs is the Athletic Director at UNM. At all times relevant to FAC, UNM employed Gerald as an assistant coach responsible for working the team's wide receivers. Gerald's claims arise from an alleged alteration with Locksley, and UNM's and Krebs' subsequent response to this incident.

Gerald alleges that, after a team practice session in August of 2009, before the physical altercation between Gerald and Locksley on which Gerald bases his tort claims, Locksley physically threatened him. Gerald further alleges that, on or about September 20, 2009, during a coach's meeting at the UNM athletic facility, Locksley choked Gerald and punched him in the face. Gerald asserts that the “attack was under the guise of a disciplinary action against the Plaintiff, who had incurred the Defendant's displeasure for the team's performance during a game,” and that “Locksley expressed his displeasure at what he perceived to [be Gerald's] disobedience or insubordination.” FAC ¶¶ 15, 16, at 3.

On September 20, 2009, Gerald reported the incident to UNM management and police, including Krebs. Gerald asserts that “Krebs and other UNM officials did not take appropriate measures to handle the situation.” FAC ¶ 18, at 3. Krebs encouraged Gerald “to minimize and trivialize what had occurred,” and “suggested to Plaintiff that his career would not benefit if he persisted in complaining of Locksley's behavior and that he should desist from any further action in the matter and from making any statements in regard to the assault.” FAC ¶¶ 20–21, at 3. Gerald alleges that Krebs' “motive and intent ... was to protect the University athletic program from criticism because of the incident, and to protect his position as Athletic Director, and the statements were discriminatory and retaliatory in nature.” FAC ¶ 22, at 3–4. Gerald asserts that Krebs publically denied and minimized the altercation between Locksley and Gerald, initially issuing a letter of reprimand to Locksley, without imposing further discipline. Gerald further asserts that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days.

Gerald was placed on administrative leave for the remainder of the 2010 football season. Although UNM invited Gerald to return to his employment with the UNM football team the following year, he refused to do. Gerald alleges that UNM and Krebs' discipline of Locksley was insufficient to deter further acts of violence.

On December 6, 2010, Gerald filed a charge of discrimination with the EEOC. His EEOC Charge named only UNM as the respondent. See EEOC Charge at 2. Moreover, in his EEOC Charge, Gerald did not check the box for retaliation; he checked only “race” as the basis for his claims of discrimination. EEOC Charge at 2. The narrative portion of the charge lists a number of grievances and states:

Statement of Discrimination: I was hired by the Respondent on December 19, 2008, as a Full time Football Coach. During the time of my employment my supervisor (Head Coach) has subjected me to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning my decisions, and cursing me in front of my peers and students. On September 20, 2009, my supervisor physically assaulted me by choking and punching me about the face. I reported this to management and nothing was done. These conditions have made my working atmosphere hostile to which it has affected my performance of duties.

I believe that I have been discriminated against because of my Race (Black) in violation of Title VII of the Civil Rights Act of 1964 as amended.

EEOC Charge at 2.


On July 30, 2010, Gerald filed suit against Locksley and UNM, raising claims for assault and battery, race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17, and the New Mexico Human Rights Act, NMSA 1978, §§ 28–1–1 to –15 (“NMHRA”), and First–Amendment retaliation. Locksley and UNM filed a motion to dismiss Locksley's original Complaint, see Defendants' Motion to Dismiss, filed August 25, 2010 (Doc. 6), and in response, Locksley filed his FAC, which added Krebs as a Defendant and raised several additional claims—i.e., retaliation under Title VII and the NMHRA, a denial of equal protection, and breach of contract. Locksley also pursues a claim for punitive damages in Count VI of his Amended Complaint.

As to adverse employment action, Gerald asserts in the FAC that Krebs and UNM “failed to take appropriate remedial action and dissuaded and discouraged Plaintiff from persisting in his complaining and requiring remedial action....” FAC ¶ 42, at 7. Gerald states that [t]he motive and intent behind Defendant Krebs' statements to Plaintiffs [sic] was to protect the University athletic program from criticism because of the incident, and protect his position as Athletic Director.” FAC ¶ 22, at 3–4.

The Defendants withdrew their original motion to dismiss, based on Gerald's decision to amend. See Notice of Withdrawal of Defendants' Motion to Dismiss, filed October 28, 2010 (Doc. 17). Before the Defendants filed their second motion to dismiss, Mark Baker, the Defendants' counsel, conferred, pursuant to D.N.M.LR–Civ. 7.1, with Gerald's counsel, Dennis Montoya, regarding the relief requested through this Motion. Gerald opposes this motion.

The Defendants now move the Court, pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Gerald's FAC in its entirety. The Defendants assert that the allegations in Gerald's FAC fail to establish his claims. On December 20, 2010, Gerald filed his Response to Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. See Doc. 24. Gerald opposes the Motion, asserting that he was adequately set forth his claims. On January 25, 2011, the Defendants filed their Reply in Support of Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. See Doc. 31.

At the hearing, Gerald conceded that his constitutional claims against UNM must be dismissed under the Eleventh Amendment. See Transcript of Hearing at 76:19–77:13 (taken January 27, 2011)(Court, Montoya)(“Tr.”) 1


“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)([T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court's “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint's allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Alto Eldorado Partners v. City of Santa Fe, No. CIV 08–0175 JB/ACT, 2009 WL 1312856, at *8–9 (D.N.M. Mar. 11, 2009)(Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could...

To continue reading

Request your trial
58 cases
  • Lee v. Univ. of N.M.
    • United States
    • U.S. District Court — District of New Mexico
    • March 30, 2020
    ...Co., 1995-NMCA-068, 120 N.M. 270, 901 P.2d 201 ). The Defendants then discuss a previous Court opinion, Gerald v. Locksley, 785 F. Supp. 2d 1074, 1084 (D.N. M. 2011) (Browning, J.), which concludes that the plaintiff's contract claims failed as a matter of law, because the UNM's Whistleblow......
  • Lucero v. Bd. of Dirs. of Jemez Mountains Coop., Inc.
    • United States
    • U.S. District Court — District of New Mexico
    • August 31, 2020
    ...status. As Lucero acknowledges, retaliatory discharge is available only for at-will employees, see Gerald v. Locksley, 785 F. Supp. 2d 1074, 1108 (D.N.M. 2011) (Browning, J.), and Lucero is not an at-will employee but "protected under a just cause standard of a CBA," Reply at 7. See Respons......
  • Hartnett v. Papa John's Pizza USA, Inc.
    • United States
    • U.S. District Court — District of New Mexico
    • October 29, 2012
    ...the employees would be dismissed only in accordance with specified procedures and for specified reasons.” Gerald v. Locksley, 785 F.Supp.2d 1074, 1108–1109 (D.N.M.2011) (Browning, J.)(citing Mealand v. E. N.M. Med. Ctr., 131 N.M. 65, 69, 33 P.3d 285, 289 (2001)). “[B]ecause an employee's ex......
  • Walton v. N.M. State Land Office
    • United States
    • U.S. District Court — District of New Mexico
    • July 1, 2015
    ...(ii) she suffered an adverse-employment action, and (iii) similarly situated employees were treated differently." Gerald v. Locksley, 785 F.Supp.2d 1074, 1099 (D.N.M.2011). The Court cited to the Tenth Circuit's August, 2005, decision of Orr v. City of Albuquerque, 417 F.3d 1144 (10th Cir.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT