Newberry v. Mascaro

1

JESSICA NEWBERRY, Plaintiff, v. JOHN MASCARO and CITY OF ELEPHANT BUTTE, Defendants.

Civ. No. 2:24-20 GJF/JHR

United States District Court, D. New Mexico

December 11, 2024

MEMORANDUM OPINION AND ORDER ON DEFENDANT MASCARO'S MOTION TO DISMISS

HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Defendant Mascaro's Motion to Dismiss the Plaintiff's Amended Complaint (“the Motion”), which is fully briefed. ECFs 41, 48, 52. Having thoroughly considered the motion, briefs, pleadings and applicable law, the Court will grant the Motion in part and deny it in part. Specifically, the Court will grant the Motion with respect to Counts I-IX and XI-XII and deny it with respect to Count X.

I. FACTUAL ALLEGATIONS^[1]

In 2015, Plaintiff, a Mexican-American woman with brown skin, was hired by the City of Elephant Butte (“the City”) as a utility clerk. ECF 38 ¶¶ 6, 9. By July 2021, she had worked her way up to Deputy Clerk. Id. ¶ 8. At all relevant times, Plaintiff was over 50 years of age. Id. ¶ 9.

In May 2022, the City hired Defendant John Mascaro, a white male in his 50s, to oversee the fire department. Id. ¶ 10, 16 Initially, Plaintiff and Defendant Mascaro got along well, but soon Defendant Mascaro “began making vulgar comments of a sexual nature to and in front of” Plaintiff. Id. ¶ 12. For instance, in or around May 2022, when a woman from a utility company came into City Hall, Defendant Mascaro said to Plaintiff, “Did you see her ass?!? She has a good ass!” Id. ¶ 13. On a separate occasion, when a State Senator attended a City Council meeting on official business, Defendant Mascaro stopped Plaintiff in the hallway to comment on the Senator's “ass.” Id. ¶ 14. And around the same time, Defendant Mascaro commented on a lesbian couple, including one woman who was his subordinate in the fire department: “She's cute. They're so cute.” Id. ¶ 15.

Also in the May 2022 timeframe, Defendant Mascaro was rumored to have focused his attention on a white woman in her 30s who was his subordinate in the fire department. Id. ¶ 16. According to the rumor, the subordinate was uncomfortable when Defendant Mascaro leaned over her so closely that his belly touched her back. Id. Responding to the rumor, Defendant Mascaro exclaimed something along the lines of “I wouldn't touch her. She's too fat!” Id. ¶ 17.

Plaintiff asked Defendant Mascaro directly to stop making sexualized comments in the workplace. Id. ¶ 18. According to Plaintiff, Defendant Mascaro did not stop and instead attempted to justify his behavior by explaining that he had “an open marriage.” Id. ¶ 20.

In or around August 2022, the City hired as its new Treasurer a white woman in her 30s. Defendant Mascaro repeatedly commented to Plaintiff about the new Treasurer's “ass” and how “good it looked.” Id. ¶ 23. Defendant Mascaro also rearranged the offices in City Hall so that the Treasurer's office would be next to his. Id. ¶ 24.

After speaking directly to Defendant Mascaro failed to curb his sexualized comments, Plaintiff took her concern “up the chain of command.” Id. ¶ 25. After she complained, Defendant Mascaro “began his campaign of retaliation against her.” Id. ¶ 26.

By September 2022, Defendant Mascaro had become City Manager. Id. ¶ 28. In that role, he abused his authority to get rid of Plaintiff because she had challenged his behavior and also so that he could replace her with a younger white woman. Id. ¶ 28. Plaintiff was terminated by October 2022. Id. ¶ 30.

II. APPLICABLE LAW

A. Rule 12(b)(1) Standard

Exhaustion of administrative remedies serves as a jurisdictional bar to filing suit under the New Mexico Human Rights Act (“NMHRA”), whereas it is an affirmative defense under Title VII and related federal statutes. See Mitchell-Carr v. McLendon, 980 P.2d 65, 70 (N.M. 1999) (explaining that compliance with NMHRA exhaustion procedures is “effective to give the district court jurisdiction” over a NMHRA claim); Morgan v. Cmty. Against Violence, No. 23-cv-353-WPJ/JMR, 2023 WL 6976510, at *1 (D.N.M. Oct. 23, 2023) (explaining that exhaustion is a “jurisdictional bar” under the NMHRA and an “affirmative defense” under Title VII); Fort Bend Cnty. v. Davis, 587 U.S. 541, 543 (2019) (holding that Title VII's “charge-filing instruction is not jurisdictional”); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 n.10 (10th Cir. 2018) (explaining exhaustion is an affirmative defense under Title VII).

Thus, although Defendant Mascaro brought his Motion under Rule 12(b)(6), his argument that Plaintiff failed to properly exhaust her NMHRA claims against him is properly understood as a challenge to subject matter jurisdiction under Rule 12(b)(1). See Mitchell-Carr, 980 P.2d at 71; see also Vigil v. City of Espanola, No. 1:20-cv-01265-PJK-SMV (D.N.M. Jan. 13, 2021) (explaining that a failure to exhaust argument is “a challenge to subject-matter jurisdiction under Rule 12(b)(1)” and analyzing those arguments under Rule 12(b)(1) even though the defendants brought their motion under Rule 12(b)(6)) (citing Mitchell-Carr, 980 P.2d at 71). But see Marquez v. Albuquerque Public Schs., No. 1:18-cv-00133-PJK-SCY, 2020 WL 1703351, *7 (D.N.M. Apr. 8, 2020) (concluding, in a case involving claims under Title VII and NMHRA, that “failure to exhaust administrative remedies is not a jurisdictional question in this circuit) (citing Lincoln, 900 F.3d at 1185-86); Hix v. SKS Devel. LLC, No. 1:24-cv-00175-KWR-JFR, 2024 WL 3488031, *5 (D.N.M. July 19, 2024) (same).

Motions to dismiss under Rule 12(b)(1) “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Campos v. Las Cruces Nursing Ctr., 828 F.Supp.2d 1256, 1265 (D.N.M. 2011) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (internal citations omitted)). “On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint's allegations to be true.” Id. (quoting Alto Eldorado Partners v. City of Santa Fe, No. Civ. 08-0175 JB/ACT, 2009 WL 1312856, at *8 (D.N.M. Mar. 11, 2009), aff'd, 634 F.3d 1170 (10th Cir. 2011) (internal citations omitted)). “But when the attack is factual, a district court may not presume the truthfulness of the complaint's factual allegations” and may “allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id. (citation omitted). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.” Id. (citation omitted). Here, Defendant Mascaro attacks the facts upon which subject matter jurisdiction is based-that is, whether Plaintiff exhausted her claims against him.

When disputed, as they are here, jurisdictional facts must ultimately be established by a preponderance of the evidence. Campos, 828 F.Supp.2d at 1271. The Court has discretion in determining the procedure for consideration of a motion under Rule 12(b)(1). See FDIC v.Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). For instance, a court has broad discretion to consider affidavits, an administrative record, or other documents necessary to resolve disputed jurisdictional facts. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Here, because the Court is deciding Defendant Mascaro's Motion based on submitted materials, without a pretrial evidentiary hearing, Plaintiff need only make a prima facie showing of subject matter jurisdiction. Oaklawn Apartments, 959 F.2d at 174; see also Kibler v. Genuine Parts Co., No. CIV 17-0486 RB/SCY, 2017 WL 4410786, at *4 (D.N.M. Oct. 2, 2017).

B. Rule 8 and Rule 12(b)(6) Standards

Under Federal Rule of Civil Procedure 8, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P 8(a)(2). This standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The required statement must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).

A Rule 12(b)(6) motion prompts a court to “assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). When ruling on such a motion, a court accepts “all well-pleaded factual allegations in the complaint” and construes them “in the light most favorable” to the plaintiff. Doe v. Sch. Dist. No 1, Denver, Colo., 970 F.3d 1300, 1305 (10th Cir. 2020). “Well-pled” means that allegations are “plausible, non-conclusory, and non-speculative.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Indeed, courts “disregard conclusory statements and look only to whether the remaining[ ] factual allegations plausibly suggest the defendant is liable.” Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015) (quotation omitted). To survive a motion to dismiss, the plaintiff must put forth facts stating a claim to relief that is “plausible on its face.” Iqbal, 556 U.S. 678. While plausibility is not the same as probability, it is...