Hartwell v. Sw. Cheese Co., Case No. 15 CV 1103 JAP/GJF

Decision Date24 May 2016
Docket NumberCase No. 15 CV 1103 JAP/GJF
Citation276 F.Supp.3d 1188
Parties Marilyn HARTWELL, Plaintiff, v. SOUTHWEST CHEESE COMPANY, LLC, Defendant.
CourtU.S. District Court — District of New Mexico

Eric D. Dixon, Attorney & Counselor at Law, P.A., Portales, NM, for Plaintiff.

Aimee M. Raimer, Amanda E. Brown, Ann Marie Arcadi, Justin Roel Chapa, Morgan, Lewis & Bockius, LLP, Dallas, TX, for Defendant.




(Doc. No. 19) (Motion), Southwest Cheese Company, LLC (SWC) asks the Court to dismiss several of Plaintiff Marilyn Hartwell's claims and strike portions of Plaintiff's FIRST AMENDED CIVIL COMPLAINT FOR DISCRIMINATION IN EMPLOYMENT UNDER NMHRA; SEXUAL HARASSMENT UNDER TITLE VII; BREACH OF IMPLIED IN FACT CONTRACT; RETALIATORY DISCHARGE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT SUPERVISION; VIOLATION OF 42 U.S.C. § 1981 (Doc. No. 14) (FAC).1 The Court will grant the Motion in part and will dismiss some of Plaintiff's claims. The Court will also grant SWC's request to strike one paragraph of Plaintiff's FAC.


SWC moves to dismiss under Rule 12(b)(6) and moves to strike under Rule 12(f). "The court's function on a Rule 12(b)(6) motion is ... to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002). In evaluating a Rule 12(b)(6) motion, the court must "accept as true all well-pleaded facts [in the complaint], as distinguished from conclusory allegations, and view the facts in the light most favorable to the nonmoving party...." Archuleta v. Wagner , 523 F.3d 1278, 1282–83 (10th Cir. 2008) (quotation and alteration omitted). Even though the court must accept as true all well-pleaded facts in the complaint, the court is under no obligation to accept bare conclusory allegations. Hall v. Belmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Nor is the court required to accept legal conclusions without factual support. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To summarize, a complaint must contain sufficient factual allegations "to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true...." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

In deciding a Rule 12(b)(6) motion, a court typically may consider only the facts alleged in the complaint. Martin v. Central States Emblems, Inc. , 150 Fed.Appx. 852, 857 (10th Cir. Oct. 11, 2005) (unpublished) (citing County of Santa Fe v. Pub. Serv. Co. of N.M. , 311 F.3d 1031, 1035 (10th Cir. 2002) ). However, a court may consider the documents from administrative proceedings as undisputed documents referenced in the complaint without converting the motion to dismiss into a motion for summary judgment. Id. at 858 (citation omitted) (stating that courts may consider charge filed with Equal Employment Opportunity Commission in ruling on motion to dismiss).

Under Rule 12(f), a court may strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Generally speaking, motions to strike should be denied unless the challenged allegations "have no possible relation or logical connection to the subject matter of the controversy." 5C The Late Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, Adam N. Steinman, Federal Practice & Procedure § 1382, at 433–36 (3d. ed. 2004). While motions to strike are generally disfavored, the decision to grant a motion to strike is within the discretion of the court. Burget v. Capital West Securities, Inc. , No. CIV-09-1015-M, 2009 WL 4807619, *1 (W.D. Okla. Dec. 8, 2009) (citing Scherer v. United States Dep't of Educ. , 78 Fed.Appx. 687, 689 (10th Cir. 2003) ).


Plaintiff is a 60 year old African–American woman. (FAC ¶ 2.) SWC operates a plant that processes cheese and dairy products in Clovis, New Mexico. (FAC ¶ 3.) Plaintiff was hired by SWC on May 24, 2006, and she worked for SWC until SWC terminated her employment on June 20, 2014. (FAC ¶ 9.)

On May 2, 2014 prior to her discharge, Plaintiff submitted a Charge of Discrimination (Charge) with the New Mexico Department of Workforce Solutions, Human Rights Bureau. (FAC Ex. 1.) In her Charge, Plaintiff stated the following:

STATEMENT OF HARM: I've been employed by the Respondent since 5/2006 and my current title is Lab Tech. In 1/2014 I applied for the position of Quality Assurance and the position was given to a much younger, White employee. In addition, I was suspended in 1/2014 but I do not believe the suspension was legitimate and I believe this was done due to my Race (Black).
STATEMENT OF DISCRIMINATION: I believe I have been discriminated against due to my Race (Black) and sex (Female) and this is in violation of Title VII of the Civil Rights Act of 1964, as amended. I have also been discriminated against due to my age (57) and this is in violation of the Age Discrimination in Employment act [sic].


On July 4, 2014, Plaintiff received a letter from Leah Jackson, SWC Human Resources employee, informing Plaintiff that she was terminated effective June 20, 2014 for job abandonment. (FAC ¶ 36, Ex. 4.) The specific allegations about Plaintiff's discharge are described below in Part II. D.

In her first claim, Plaintiff contends she was subjected to unlawful sexual, racial, and age harassment in violation of the New Mexico Human Rights Act (NMHRA). (FAC ¶¶ 43–49.) In her second claim, Plaintiff alleges she was sexually harassed in violation of Title VII, 42 U.S.C. § 2000e–2(a). (FAC ¶¶ 50–55.) In her third claim, Plaintiff alleges that SWC breached Plaintiff's oral employment contract by firing her without good cause. (FAC ¶¶ 56–61.) In her fourth claim, Plaintiff alleges that she was discharged in retaliation for filing a workers' compensation claim or in retaliation for complaining to authorities about workplace safety. (FAC ¶¶ 62–67.) In her fifth claim, Plaintiff asserts a claim for intentional infliction of emotional distress (IIED) alleging that SWC failed to protect her from sexual harassment and other offensive conduct. (FAC ¶¶ 68–72.) In her sixth claim, Plaintiff asserts a claim of negligent supervision for SWC's failure to supervise employees who sexually harassed Plaintiff. (FAC ¶¶ 73–83.) In her seventh claim, Plaintiff alleges that SWC racially discriminated against her in violation of 42 U.S.C. § 1981 because SWC failed to promote her, tolerated a racially hostile work environment, discharged her, and treated her less favorably because of her race. (FAC ¶¶ 84–92.) In her eighth claim, Plaintiff alleges SWC discriminated against her because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1). (FAC ¶¶ 93–97.)

A. General allegations of mistreatment, injury, and retaliation.

Plaintiff claims at all times she was performing her job duties satisfactorily. (FAC ¶ 42.) Plaintiff alleges that in 2013, an unnamed employee made an accusation against a truck driver, but when Plaintiff would not join in the accusation, George Chappell, SWC President, "tried to get her written up." (FAC ¶ 13.)

On October 2, 2013, Plaintiff was injured "when a door slammed into her." (FAC ¶ 15.) Plaintiff was taken to the office to see Debbie Abrego, the Safety Manager. In Ms. Abrego's office, firefighters and paramedics were receiving training. (Id. ) Ms. Abrego asked the trainees "what they thought of [Plaintiff's] injury." (Id. ) "One of the men opined that he did not think [Plaintiff] was injured. Travis Martin then told Plaintiff to get back to work. Plaintiff demanded to be taken to the hospital to be x-rayed." (Id. ) "Plaintiff was released to return to work." (FAC ¶ 16.)

On October 30, 2013, fire alarms went off in the SWC plant. Justin Musick, a supervisor, "told Plaintiff that if she left her work area she would be terminated." (FAC ¶ 17.) On November 4, 2013, Plaintiff filed a complaint with the New Mexico and Federal Occupational Safety Health Administration regarding unsafe conditions at SWC, "including two anomia [sic] leaks that employees were not made aware of that threatened their lives; fire alarms going off in the building; employees being reluctant to report injuries due to retaliation and harassment; and employees being exposed to chemicals for cleaning trucks." (FAC ¶ 18.)

On November 18, 2013, Plaintiff received a letter from the New Mexico Occupation and Safety Bureau stating that "the unsafe working conditions have been corrected." (FAC ¶ 19.) SWC's entire plant "had to be re-wired because of corroded wires." (FAC ¶ 20.) Plaintiff alleges that SWC retaliated against her for making the safety complaint: (1) Plaintiff was called into her supervisor's office for "petty work rule violations;" (2) Plaintiff was falsely accused of incorrectly taking milk samples; (3) Supervisors Eric Denton and Justin Musick "watched Plaintiff's work performance on a daily basis[;]"(4) Plaintiff was accused of "not taking milk tankers into the plant in a timely fashion[,]" a job for which she was not responsible; (5) Plaintiff was referred to contemptuously as a "whistleblower" by Mr. Musick, Mr. Denton, and other supervisors; and (6) Mr. Musick stated "that nigger ... is not going to get away with this [the safety report]." (FAC ¶¶ 18, 20 i-v.)

B. Allegations regarding Plaintiff's write-up and suspension for tongue ring.

On January 8, 2014, Plaintiff was called into a supervisor's office by three supervisors, Mr. Denton, Mr. Musick, and Mr. Campbell, and Plaintiff was "forced to open her mouth to see if she had a tongue ring." (FAC ¶...

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