Gerald v. Locksley, CIV 10-0721 JB/LFG

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Docket NumberNo. CIV 10-0721 JB/LFG,CIV 10-0721 JB/LFG
Decision Date19 March 2012

and PAUL KREBS, Defendants.

No. CIV 10-0721 JB/LFG


Dated: March 19, 2012


THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Plaintiff's Amended Complaint for Hostile Work Environment, filed June 9, 2011 (Doc. 53)("Motion"). The primary issues are: (i) whether Plaintiff Johnathan Gerald has adequately set forth allegations to support his hostile work environment claim in his Amended Complaint for Hostile Work Environment Pursuant to the Court's Authorization to File Amended Complaint Set Forth in its Memorandum Opinion and Order of May 6th, 2011, filed May 15, 2011 (Doc. 50)("SAC"); and (ii) whether the Court should grant Gerald leave to file an amended complaint. The Court held a hearing on July 19, 2011. Because Gerald has not cured the defects the Court identified 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"), the Court dismisses Gerald's SAC. Because the allegations in the Affidavit of Jonathon B. Gerald (executed June 23, 2011), filed June 24, 2011 (Doc. 55-1), which was attached to the Gerald's Response to Defendants' Motion to Dismiss Plaintiff's Amended Complaint for Hostile Work Environment, filed June 23,

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2011 (Doc. 54)("Response"),1 are, in combination with the allegations in the SAC, sufficient to plausibly state a hostile work environment claim, the Court grants Gerald leave to file an amended complaint.


For the purposes of a motion to dismiss, the Court takes the allegations in the complaint as true. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)("The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." (citation omitted)). Locksley is the head football coach at the University of New Mexico ("UNM"). SAC ¶ 4, at 2. Defendant Paul Krebs is the Athletic Director at UNM. See SAC ¶ 6, at 2. At all times relevant to SAC, UNM employed Gerald as an assistant coach responsible for working the team's wide receivers. See SAC ¶ 2, at 1. 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 claims, "Locksley physically threatened [Gerald] with bodily harm because of alleged errors or mistakes by [Gerald's] receivers during the practice and [Gerald's] coaching." SAC ¶ 14, at 2. Gerald further alleges that, on or about September 20, 2009,2 during a coach's meeting at the UNM athletic facility, "during a coach's

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meeting at the UNM athletic facility after a loss the day before, Defendant Locksley became verbally abusive with the coaching staff because of the performance of the offensive team in a game the day before." SAC ¶ 15, at 3.

Locksley then directed questions toward [Gerald], asking him about a particular play, to which [Gerald] indicated that he would run the play in whatever manner [Locksley] wanted. Locksley again asked the [Gerald] about the play and [Gerald] again said he would run the play as the [Locksley] wished. Locksley became furious at [Gerald] and swore at him, and suddenly approached [Gerald] in an aggressive manner. Plaintiff Gerald was physically attacked by . . . Locksley, who choked him and punched him in the face, injuring him, and continued to attack him until other coaches pulled . . . Locksley off [Gerald].

SAC ¶¶ 16-19, at 3. Gerald alleges that. "[a]lthough Defendant Locksley is a Black man, he directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches." SAC ¶ 31, at 5.

On September 20, 2009, Gerald reported the incident to UNM management and the police, including Krebs. Gerald asserts that "Krebs and other UNM officials did not take appropriate measures to handle the situation." SAC ¶¶ 20-21, at 3. Krebs encouraged Gerald "to minimize and trivialize what had occurred," and suggested to Gerald "his career would not benefit if he persisted in complaining of Locksely's behavior and that he should desist from any further action in the matter and from making any statements in regard to the assault." SAC ¶¶ 22-23, at 3-4. Gerald alleges that Krebs' statement "were motivated by retaliation and the Plaintiff=s [sic] race, and; [sic] to protect himself and the University athletic program from criticism because of the incident." SAC ¶ 24, at 4. Gerald alleges that Krebs publically denied and minimized the altercation between Locksley and Gerald, initially issuing a letter of reprimand to Locksley, without imposing further discipline. See

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SAC ¶¶ 27-28, at 4. Gerald further alleges that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days. See SAC ¶ 24, at 4. Gerald alleges that he and Locksley "are both African-American and . . . Krebs and the UNM administration believed that no serious discipline should be imposed because the incident involved a fight between two Black men." SAC ¶ 30, at 4.

Gerald was placed on administrative leave for the remainder of the football season.3 Although UNM invited Gerald to return to his employment with the UNM football team the following year, he refused to do. See SAC ¶ 33, at 5. Gerald alleges that UNM and Krebs' discipline of Locksley was insufficient to deter further acts of violence. See SAC ¶ 33, at 5. Gerald alleges:

The violent acts of Defendant Locksley were done out of malice and animosity against the Plaintiff, and; the failure of UNM to adequately discipline the Defendant was motivated by racial discrimination where UNM management believed that the Plaintiff's race made him an easy target for retaliation, intimidation and manipulation in order to cover up the incident and avoid bad publicity, thereby ratifying Defendant Locksley's intentional and malicious conduct.

SAC ¶ 35, at 5. Gerald contends that the incident has made him unmarketable in the college football coaching market. See SAC ¶¶ 38-41, at 6.

On January 5, 2010, Gerald filed a charge of discrimination with the Equal Employment Opportunity Commission ("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:

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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. See Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed July 30, 2010 (Doc. 1) ("Complaint"). 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 added a claim for punitive damages in Count VI of his FAC.

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). The Defendants filed their Motion to Dismiss Plaintiff's First Amended Complaint, filed December 6, 2010 (Doc. 23)("First Motion to Dismiss"), in which they moved the Court, pursuant

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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 asserted that the allegations in Gerald's FAC fail to establish his claims.

On April 21, 2011, Gerald substituted attorney Santiago E. Juarez for his former counsel Dennis W. Montoya. See Notice, filed April 21, 2011 (Doc. 46). The Supreme Court of New Mexico indefinitely suspended Mr. Montoya's license to practice law, and forbade him from "provid[ing] any legal services in connection with cases in which any of his present or former clients are or were involved." In Re Dennis W. Montoya, No. 32,397, Order at 2 (N.M. Apr. 25, 2011)(Doc. 56). Mr. Juarez took over a number of cases from Mr. Montoya.

On, May 6, 2011, the Court filed its Memorandum Opinion and Order, granting the First Motion to Dismiss. See Doc. 47 ("MOO"). The Court held that, because Gerald failed to exhaust his administrative remedies, it lacked subject-matter jurisdiction over Gerald's retaliation claim and his claims...

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