Lucero v. Bd. of Dirs. of Jemez Mountains Coop., Inc.
| Decision Date | 31 August 2020 |
| Docket Number | No. CIV 20-0311 JB\JHR,CIV 20-0311 JB\JHR |
| Citation | 495 F.Supp.3d 1135 |
| Parties | Jimmy LUCERO, Plaintiff, v. BOARD OF DIRECTORS OF JEMEZ MOUNTAINS COOPERATIVE, INC.; Donna Martinez; Alfonso Martinez, Jr.; Randy Vigil; Carlos Salazar, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Betsy R. Salcedo, Salcedo Law PC, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Lorna M. Wiggins, Wiggins Williams & Wiggins PC, Albuquerque, New Mexico, Attorneys for the Defendants Donna Montoya-Trujillo, Dwight Herrera, and Randy Vigil.
Jonlyn M. Martinez, Law Firm of Jonlyn Martinez, Albuquerque, New Mexico, Attorney for Defendants Alfonso Martinez, Jr. and Carlos Salazar.
THIS MATTER comes before the Court on: (i) Counter-Plaintiff Salazar's Motion for Default Judgment, filed April 7, 2020 (Doc. 14)("Motion for Default"); (ii) Defendants Martinez and Salazar’ [sic] Partial Motion to Dismiss and Memorandum in Support Thereof, filed April 13, 2020 (Doc. 4)("MTD"); and (iii) Motion to Amend Petition, filed June 24, 2020 (Doc. 37). The Court held hearings on June 25, 2020, and July 29, 2020. See Clerk's Minutes at 1, filed June 25, 2020 (Doc. 39); Clerk's Minutes at 1, filed July 30, 2020 (Doc. 47). The primary issues are: (i) whether the Court should enter default judgment on behalf of Counter-plaintiff Carlos Salazar, because Plaintiff and Counter-Defendant Jimmy Lucero did not respond to Defendant and Counter-plaintiff Salazar's Answer to Plaintiff's Complaint for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Negligent Supervision, Retention and Training, Discriminatory Discharge Based on Violation of Human Rights Act, Retaliatory Discharge Against Public Policy Violation and Intentional Infliction of Emotional Distress and Counterclaim for Battery and Assault, filed April 7, 2020 (Doc. 1-4)("Counterclaim"), filed within the thirty-day time limit for answering a counterclaim as N.M. R. Ann. 3-301 requires; (ii) whether the Court should dismiss Count III -- a prima facie tort claim -- of Lucero's Complaint for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Negligent Supervision, Retention and Training, Discriminatory Discharge Based on Violation of Human Rights Act, Retaliatory Discharge Against Public Policy Violation and Intentional Infliction of Emotional Distress and Counterclaim for Battery and Assault, filed April 7, 2020 (Doc. 1-2)("Complaint"), against Defendant Alfonso Martinez, Jr. and Salazar, because Count III does not allege that Martinez or Salazar hired, supervised, or retained employees who abused Lucero; (iii) whether the Court should dismiss the Complaint's Count IV, which alleges discriminatory discharge in violation of the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-7(A) ("NMHRA"), against Martinez and Salazar, because Lucero does not allege that either Martinez or Salazar were involved in his discharge or even had the authority to discharge him; (iv) whether the Court should dismiss Count V of Lucero's Complaint against Martinez and Salazar, because Lucero does not allege that Martinez and Salazar were involved in Lucero's discharge, and because Count V alleges retaliatory discharge, which is available under state law only for at-will employees; (v) whether the Court should dismiss Lucero's intentional infliction of emotional distress claim, because § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) ("LMRA") precludes the claim; and (vi) whether the Court should grant Lucero leave to amend his Complaint to make specific allegations against Martinez and Salazar. The Court concludes that: (i) it will not enter default judgment, because the Clerk of the Court has not entered default and default is not appropriate given that the parties were in communication, the Petitioner's Response to Defendant Salazar's Counterclaim for Assault and Battery, filed April 7, 2020 (Doc. 1-5)("Counterclaim Response"), was filed five days after the deadline, and Salazar alleges no prejudice to himself; (ii) it will dismiss Count III against Martinez and Salazar without prejudice, because Lucero does not mention Martinez and Salazar in the Count, despite mentioning another supervisor by name, nor does Lucero make specific allegations against Martinez and Salazar; (iii) it will dismiss Count IV against Martinez and Salazar with prejudice, because Lucero did not exhaust his administrative remedies against Martinez and Salazar; (iv) it will dismiss Count V against Martinez and Salazar with prejudice, because Lucero is not eligible to make a retaliatory discharge claim as an employee protected by a Collective Bargaining Agreement ("CBA"); (v) it will dismiss Count VI without prejudice, because Lucero does not make sufficiently specific allegations for the Court to determine whether there was outrageous conduct and whether the LMRA's § 301 precludes the claim; and (vi) it will allow Lucero to file a motion to amend his Counts III and VI, because amendment would not be futile for those claims.
The Court takes its facts from the Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely Lucero's version of events.
From October, 2015, through March, 2017, Lucero served as a tree crew laborer for Jemez Mountain Electric Cooperative ("Jemez Cooperative"), at Jemez Cooperative's Española, New Mexico, location. See Complaint ¶ 29, at 7. From March 14, 2017 to January, 2018, Lucero was an apprentice in the International Brotherhood of Electrical Workers’ ("IBEW") apprenticeship program at Jemez Cooperative. Complaint ¶¶ 9, 14, 29 at 3-4, 7. Jemez Cooperative "is a domestic rural electric cooperative" that is incorporated in the State of New Mexico, and it has several locations throughout New Mexico. Complaint ¶ 10, at 3. Defendant Board of Trustees of Jemez Cooperative "is accountable for ensuring implementation and adherence to policies that insure the proper management, administration, and regulation of Jemez Cooperative's business." Complaint ¶ 12, at 4. Jemez Cooperative "had the power to direct Plaintiff's work activities," "the authority to hire, transfer, and discharge employees," "the responsibility to direct" employees, and "broad discretionary authority over decisions that ultimately determine Jemez Cooperative's policy regarding the actions alleged." Complaint ¶ 13, at 4.
Defendant Donna Montoya-Trujillo serves as Jemez Cooperative's general manager and is responsible for ensuring "a work place free from harassment and discrimination based on protected status guaranteed to the Plaintiff pursuant to the New Mexico Human Rights Act and Title VII of the Civil Rights Act." Complaint ¶ 15, at 4. As Jemez Cooperative's general manager, Montoya-Trujillo "was charged with the day-to-day management of Jemez Cooperative"; "is accountable to the Jemez Cooperative" Board of Trustees; "had the power to direct personnel; was responsible for preventing injury to employees by establishing and maintaining a workplace free from unsafe conditions and by integrating safe and healthy attitudes into the work processes"; and "had the authority to train and supervise employees; review performance and training of employees and reassign and replace employees and at all relevant times [ ] had broad discretionary authority over decisions regarding the actions alleged." Complaint ¶ 16, at 4-5. Defendant Dwight Herrera is Jemez Cooperative's human resource administrator, who "had the power to direct Plaintiff's activities and the authority to hire, transfer, and discharge employees, or the responsibility to direct them, and at all relevant times alleged herein had broad discretionary authority over decisions regarding the actions alleged." Complaint ¶ 17, at 5. Defendant Randy Vigil is a lineman supervisor and Lucero's direct supervisor at Jemez Cooperative. See Complaint ¶ 18, at 5. As a lineman supervisor, Vigil "had the power to direct Plaintiff's activities, evaluate Plaintiff and the activities of other employees, had the power and responsibility to report the alleged abuse, harassment and discrimination to Jemez Cooperative and its agents and had broad discretionary authority over the actions alleged." Complaint ¶ 18, at 5.
Martinez is a journey lineman at Jemez Cooperative and one of Lucero's coworkers. See Complaint ¶ 19, at 5. Martinez also serves as a union steward and as a local union vice-president for IBEW. Complaint ¶ 19, at 5. Martinez is "subject to the policies set forth by Jemez Cooperative," and, as a union steward, "Martinez has the authority to ensure a workplace is free from harassment and discrimination and bring workplace issues forth to the attention of management per IBEW's CBA." Complaint ¶ 19, at 5. Salazar is a working foreman at Jemez Cooperative and one of Lucero's coworkers. See Complaint ¶ 20, at 5. He is "subject to Jemez Cooperative's policies." Complaint ¶ 20, at 5.
All of the Defendants "are the agents, employees, licensee or assignees of Jemez Cooperative and in doing the things herein alleged acted within the course and scope of such agency, employment, assignment, license, invitation and/or relationship and with the full knowledge and consent of the remaining." Complaint ¶ 22, at 6. Further, the Defendants "also acted at times outside the scope of their authority." Complaint ¶ 23, at 6.
Lucero "did not receive any discipline actions from Jemez Cooperative" from 2014 to 2017. Complaint ¶ 30, at 7. On or about June 21, 2017, another employee pushed Lucero after Lucero "accidentally dropped a line." Complaint ¶ 31, at 7. Vigil was present during the incident, but he did not intervene. Complaint ¶ 31, at 7. Electing not to take a statement from Lucero about the incident, an unnamed person at Jemez Cooperative "sent [Lucero] home on four days paid leave while Jemez Cooperative purportedly...
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