Hyman v. N.M. State Univ., No. CIV 18-1103 JB\K

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesMICHAEL R. HYMAN, Plaintiff, v. NEW MEXICO STATE UNIVERSITY; THE BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY; DAN HOWARD in his official capacity as Provost of New Mexico State University; JAMES HOFFMAN in his official capacity as Dean of the College of Business at New Mexico State University; LAURI MILLOT in her official capacity as Director of the Office of Institutional Equity at New Mexico State University; NANCY ORETSKIN in her official capacity as Head of Marketing Department at New Mexico State University; Defendants.
Docket NumberNo. CIV 18-1103 JB\K
Decision Date30 March 2020

MICHAEL R. HYMAN, Plaintiff,
v.
NEW MEXICO STATE UNIVERSITY; THE BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY;
DAN HOWARD in his official capacity as Provost of New Mexico State University;
JAMES HOFFMAN in his official capacity as Dean of
the College of Business at New Mexico State University;
LAURI MILLOT in her official capacity
as Director of the Office of Institutional Equity at New Mexico State University;
NANCY ORETSKIN in her official capacity as Head of Marketing
Department at New Mexico State University; Defendants.

No. CIV 18-1103 JB\K

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 30, 2020


MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Partial Motion to Dismiss Plaintiff's Complaint, filed March 11, 2019 (Doc. 10)("Motion"). The Court held a hearing on December 19, 2019. The primary issues are: (i) whether the Court should dismiss Counts I, III, and V, of the Complaint, filed November 27, 2018 (Doc. 1), which allege gender discrimination, an Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, violation, and disability discrimination, because the Defendants have raised a failure-to-exhaust affirmative defense; (ii) whether the Court should dismiss the individual Defendants, because Plaintiff Michael R. Hyman did not name them in his Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination (dated July 11, 2018), filed March 11, 2019 (Doc. 10-1)("Charge");

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and (iii) whether the Court should dismiss Count IV, which is a state-law claim for tortious interference with contract, because the Defendants are state government entities and state public employees who are immune from tort liability for tortious interference with contract because the State of New Mexico has not waived liability for tortious interference with contract. The Court grants the Motion, because (i) Hyman did not exhaust his administrative remedies for the acts alleged in Count I, III, and V -- gender discrimination, an ADA violation, and disability discrimination; and (ii) the Defendants are government entities and public employees who are immune from tort liability from the alleged incidents. The Court, therefore, dismisses Counts I, III, and V -- for gender discrimination, an ADA violation, and disability discrimination -- without prejudice and dismisses Count IV -- tortious interference with contract -- with prejudice.

FACTUAL BACKGROUND

This case arises out of the charge of discrimination that Hyman filed with the EEOC "on or about 11 July 2018." Complaint ¶ 6, at 3 (citing Charge at 1). As a result of his Charge, the EEOC mailed him a right-to-sue letter "on or about 31 August 2018." Complaint ¶ 6, at 3. Hyman filed the case within ninety days of receiving the right-to-sue letter. See Complaint ¶ 6, at 3.

PROCEDURAL BACKGROUND

In his Complaint, Plaintiff Michael Hyman alleges eight causes of action. See Complaint at 1-2.1 In their Motion, the Defendants ask the Court to "dismiss Count [I] (discrimination

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based on gender); Count III (violation of plaintiff's rights under the ADA); Count IV (interference with Contract) and Count V (discrimination based on disability)." Motion at 1-2 (punctuation as in original). The Defendants also request "further relief as the Court deems appropriate." Motion at 6.

1. The Complaint.

Hyman's first count alleges gender discrimination pursuant to "Title VII of the Civil Rights Act of 1964 as amended and covered by similar state law protections." Complaint ¶ 14, at 4. He states that, while serving as the Department of Marketing Ph.D. coordinator, he "was not informed, let alone invited, to official meetings between students and [Defendant Nancy] Oretskin." Complaint, ¶ 14 a., at 4. Hyman further alleges that Oretskin "required Hyman to hold physical office hours for an online course" and threatened to deny his Family Medical Leave Act, 29 U.S.C. § 2601 ("FMLA"), leave if he did not hold the physical office hours. Complaint ¶ 14 b., at 4. Moreover, Hyman argues, Oretskin did not permit a doctoral student to hold Hyman's physical office hours in contrast to a female doctoral student who "was allowed to hold virtual office hours from Europe while teaching online in Summer 2017." Complaint ¶ 14 b., at 4-5. Hyman also alleges that Oretskin "refused to correct errors in [Hyman's] most recent annual evaluation and refused to consider any contrary documentary evidence." Complaint ¶ 14 c., at 5. Hyman next alleges that Oretskin encouraged a female Ph.D. student to file a "meritless complaint" against Hyman, which Oretskin included in Hyman's annual performance review. Complaint ¶ 14 e., at 5. Finally, Hyman alleges that Oretskin consulted with female faculty

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members about their Ph.D. students' work but did not consult with Hyman about his Ph.D. students' work. See Complaint ¶ 14 f., at 5-6. Hyman states that these allegations are "illustrative, not exhaustive" and that he "reserves the right to amend and include additional instances . . . through the discovery period and up to the point that any scheduling order or other court order prohibits amendment." Complaint ¶ 14, at 6.

Hyman's second count alleges that Defendants New Mexico State University ("NMSU"), Dan Howard, and James Hoffman discriminated against Hyman because of his age. See Complaint at 6. He states that they pressured Hyman to resign or retire "through their actions, discussed elsewhere in this document." Complaint ¶ 19, at 7. Hyman's third count alleges that NMSU and Hoffman violated Hyman's rights under the ADA. See Complaint at 7. NSMU's Office of Institutional Equity issued Hyman an EEO accommodation2 in the fall of 2012, which Hyman has never invoked. See Complaint ¶ 22 a., at 8. Hyman alleges that, although Hoffman was aware of this accommodation, he "repeatedly attempted to increase Hyman's synchronous assignments." Complaint ¶ 22 a., at 8.

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Hyman's fourth count alleges that Defendants Lauri Millot, NMSU, Howard, Hoffman, and Oretskin are liable for interference with contract. See Complaint at 10. Hyman says that they "have created an extremely unpleasant work environment in their effort to pressure [him] to retire/resign," "violate[d Hyman's] property rights to his position as a Distinguished Achievement Professor," and have not given him "a merit-related pay increase nor any other award" "since Hoffman's hiring as Dean of the College of Business." Complaint ¶ 25, at 10. Hyman's fifth count alleges that NMSU, Hoffman, and Oretskin discriminated on Hyman based on his disability. See Complaint ¶ 30 b., at 11. Hyman states that, although he received an "excellent" internal review, Oretskin and Hoffman "removed [him] from [his] coordinator position [in retaliation for] making it obvious Hyman would resist efforts to unilaterally violate Ph.D. Program policies to Ph.D. students' detriment." Complaint ¶ 30 b, at 11. Hyman's sixth count alleges that NMSU, Howard, Hoffman, and Millot have retaliated against Hyman for filing complaints. See Complaint ¶ 34 b, at 13. Hyman alleges that

(i) Hoffman retaliated against [Hyman] for representing a faculty preference that Hoffman be removed as Dean of the College of Business, (ii) Howard retaliated against [Hyman] for filing a complaint against Hoffman and Millot, and (iii) Millot retaliated against [Hyman] for complaining Millot's lack of timeliness was contrary to New Mexico State University and EEOC policy.

Complaint ¶ 34 b., at 13. He also alleges that Hoffman has "repeatedly slandere[ed him] to senior faculty and administrators." Complaint ¶ 34 b., at 13.

2. Partial Motion to Dismiss.

The Defendants filed their Motion moving to dismiss Counts I, III, and V under rule 12(b)(6) of the Federal Rules of Civil Procedure and Count IV under rule 12(b)(1) of the Federal Rules of Civil Procedure. See Motion at 1. The Defendants note that they are moving to dismiss

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under 12(b)(6) as opposed to 12(b)(1) for counts I, III, and V, because the United States Court of Appeals for the Tenth Circuit recently concluded that, although failure to exhaust is an affirmative defense, it does not "implicate the court's jurisdiction to hear such a claim." Motion at 1 (citing Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018). The Defendants begin their arguments by stating that that the Court must dismiss Counts I, III, and V, because Hyman has not exhausted his administrative remedies regarding these gender and disability discrimination claims. See Motion at 3-4. The Defendants note that, although "[g]enerally, failure to check the applicable box on the EEOC charge amounts to failure to exhaust administrative remedies as to a certain type of claim," Motion at 4 (citing Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009)), that "presumption can be rebutted 'if the text of the charge clearly sets forth the basis of the claim," Motion at 4 (quoting Jones v. United Parcel Serv., Inc., 502 F.3d at 1186). The Defendants contend that Hyman checked only the age discrimination and retaliation claim boxes, and that his Charge's text was "devoted wholly" to age discrimination claims. Motion at 5. The Defendants thus conclude that the Charge can be construed as alleging only age discrimination claims. See Motion at 5. Before moving on to their next argument, the Defendants note that, as Hyman's Charge named only New Mexico State University, his claims against the individual defendants should be dismissed. See Motion at 5 (citing Bates v. N.M. Corr. Dep't, No. CIV 08-1013 JB/RLP, 2010 WL 4339367, at *14 (D.N.M. Sept. 30, 2010)(Browning, J.); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996)).

The Defendants then contend that the Court must dismiss Count IV because immunity bars that claim. See Motion at 5. The Defendants explain that Hyman has brought an

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interference-with-contract claim under the theory that the Defendants "'violate[d]...

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