Equal Emp't Opportunity Comm'n v. Mexico

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW MEXICO, DEPARTMENT OF CORRECTIONS, Defendant.

Civ. No. 15-879 KG/KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 4, 2017

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Defendant's Motion to Dismiss Plaintiff's Complaint (Motion to Dismiss), filed November 11, 2016 and Plaintiff's Motion to Convert Defendant's Motion to Dismiss into a Motion for Summary Judgment (Motion to Convert), filed February 7, 2017. (Docs. 144, 178). Both motions are now fully briefed. (Docs. 153, 175, 182, and 192). The Court held a hearing on the Motions on November 2, 2017, at which Michael Baskind appeared for Plaintiff Equal Employment Opportunity Commission (EEOC) and Ellen Casey appeared for Defendant New Mexico Department of Corrections (NMDC). Having considered the Motions, oral arguments, and applicable law, the Court will deny all requested relief and order EEOC to file a supplemental pleading.

I. Background

This is an age discrimination case arising from NMDC's alleged failure to promote correctional officers over the age of 40. EEOC filed the case on September 30, 2015 under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. on behalf of three charging parties and an unidentified group of other aggrieved individuals.

EEOC alleges that NMDC failed to promote Richard Henderson and Jerry Martinez to the position of Major at Central New Mexico Correctional Facility because they were both over the age of 40. Complaint at ¶¶ 20 - 25. Former Warden Anthony Romero (age 38) allegedly told Henderson and Martinez that while they were qualified for the Major position, he selected a 31-year-old candidate because he was looking for someone with "longevity." Id. at ¶ 27. Lieutenant Paul Martinez (age 58) also was allegedly passed over in favor of younger candidates for reassignment to the desirable Security Threat Intelligence Unit. Id. at ¶¶ 73-74. When Henderson complained, Warden Romero allegedly directed Robert Tenorio (age 53) to uncover a policy violation by Henderson. Id. at ¶ 47. Tenorio refused and later participated as a witness in Henderson's EEOC complaint. Id. at ¶¶ 49-52. Warden Romero then retaliated by, inter alia: (1) accusing Tenorio of time sheet fraud and ultimately discharging him and (2) transferring Henderson to less desirable units. Id. at ¶¶ 34-41; 53.

EEOC alleges NMDC and Warden Romero engaged in similar discrimination against other aggrieved individuals. Specifically, EEOC asserts that since January 2009 to at least December 2014 and continuing, NMDC denied employment opportunities to unidentified workers 40 and over based on their age. Id. at ¶¶ 66, 70. EEOC also alleges Warden Romero: (1) made many of the decisions to deny employment opportunities to older workers; (2) used ageist comments about longevity, preferring younger workers, and not promoting employees near retirement; and (3) instilled a culture of age discrimination that continues to be applied by NMDC. Id. at ¶¶ 67-69. EEOC seeks an injunction requiring policy changes and money damages for any individual adversely impacted by the discrimination. Id. at ¶¶ A-F.

The Amended Complaint alleges three counts (Counts I, II, and IV) on behalf of a class of unidentified aggrieved individuals under 29 U.S.C. §§ 623(a)(1) (age discrimination) and 623(d)(retaliation). NMDC now moves to dismiss those counts with respect to the unidentified aggrieved individuals pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 144). NMDC argues those claims are insufficient under the Twombly/Iqbal standard and that EEOC failed to provide sufficient notice about any additional aggrieved individuals during the pre-filing conciliation period. (Doc. 144, 175). In support of these arguments, NMDC proffered various exhibits relating to EEOC's investigation and conciliation. (Exhibits to Doc. 144).

EEOC opposes the Motion to Dismiss in its entirety. (Doc. 153). However, in the event the Court is willing to entertain evidence regarding pre-filing communications, EEOC asks that the Motion to Dismiss be converted to a summary judgment proceeding. (Doc. 178 ). According to EEOC, the converted motion should then be denied as moot, as NMDC already filed a summary judgment motion addressing the adequacy of EEOC's pre-filing investigation and conciliation and the timeliness of any post-RCD claims. (Doc. 270) Alternatively, if the Motion to Dismiss is not converted and the Court determines the allegations must be supplemented, EEOC is willing to amend its pleading.

II. Standard of Review

The Court must treat the Motion to Dismiss as a Rule 12(c) motion for judgment on the pleadings because it was filed after the answer. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002) (noting that "motion [filed] after ... the answer... should generally be treated as a motion for judgment on the pleadings"). A Rule 12(c) motion uses the same standard of review that applies to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). The Court must accept all well-pleaded allegations as true and must view them in the light most favorable to the plaintiff. See Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).

To survive a motion to dismiss, the plaintiff must allege facts sufficient to state a plausible claim of relief. Id. at 570. A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that merely sets forth labels, conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. See Twombly, 550 U.S. at 555.

III. Discussion

EEOC litigation is complex and unique, and this case is further complicated by its procedural posture. The Court's task here is two-fold: First, it must determine how and when to address each issue in a procedurally correct fashion. Then, it must evaluate the parties' substantive arguments. Each step is detailed below.

A. Conversion to Summary Judgment Proceeding

"Generally, the sufficiency of a complaint must rest on its contents alone." Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). There are three limited exceptions to this rule, allowing the Court to consider: "(1) documents that the complaint incorporates by reference...; (2) documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity ...; and (3) matters of which a court may take judicial notice." Id. (internal citations omitted). If a party presents materials that do not fall within these exceptions, the Court must either exclude the materials or convert the matter to a summary judgment proceeding. See Fed. R. Civ. P. 12(d); Geras v. International BusinessMachines Corp., 638 F.3d 1311, 1314 (10th Cir. 2011) (holding that district courts have discretion to either exclude evidence or convert when extraneous materials are presented).

The controversial exhibits NMDC seeks to proffer include: (1) requests for information propounded on NMDC by EEOC (Exhibit E); (2) EEOC's letter to NMDC employees soliciting information or claims (Exhibit F); and (3) letters and e-mails between the parties relating to EEOC's efforts at conference, conciliation, and investigation (Exhibits H - K) (together, Contested Exhibits) (Doc. 144).¹ NMDC argues these exhibits were "implicitly referenced" in EEOC's allegations regarding its pre-filing investigation. Courts have consistently rejected his argument, holding that the above exceptions do not include implicit, subtle, or passing references to extraneous evidence. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) ("Merely mentioning a document in the complaint will not satisfy th[e] standard" for considering extrinsic evidence); Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (same); Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 124 (S.D.N.Y. 2010) (collecting cases and excluding evidence where "[p]laintiffs only make a single implicit reference to the email"). The Court therefore cannot consider the Contested Exhibits under Rule 12(c).

Given the choice, NMDC favors exclusion rather than conversion to ensure any distinct arguments about notice pleading are not subsumed by a converted summary judgment motion. The Court agrees with this approach and will exclude the Contested Exhibits and deny the Motion to Convert. The parties will also be permitted to amend their pending summary judgment motions to include any evidence or arguments not considered in this ruling.

B. Scope of this Ruling

Much of the oral argument was devoted to the scope of the Motion to Dismiss, assuming it would not be converted. NMDC asks the Court to consider the lack of actual pre-litigation notice as part of the notice pleading inquiry, including its knowledge about the potential number of claimants, facilities, and wrongdoers. According to NMDC, any potential recovery should be limited to the claimants it actually knew about when conciliation concluded in September of 2013.

NMDC's arguments about notice and timeliness are predicated on the same proposition of law, namely that the EEOC may only bring claims for wrongdoing that was discovered and disclosed during conciliation. See EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F.Supp.2d 1171 (D. Colo. 2013) (holding that the EEOC may pursue Title VI claims for additional wrongdoing only if it "give[s] notice ... of the newly discovered conduct and...