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BATES v. NEW MEXICO CORRECTIONS DEPARTMENT
TERRY MEANS, District Judge
Before the Court is Defendants' Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) (doc. 20). In the motion, Defendants ask the Court to dismiss plaintiff Deepkala Goldberg's claims for relief under the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C.A. §§ 1132, 1140 (West 2010). After review, the Court concludes that Mrs. Goldberg has stated a claim for relief based on § 510 of ERISA, which allows her to pursue the relief prescribed in § 502. The Court will, therefore, deny Defendants' motion to dismiss.
I. Background
Scott Goldberg was employed by defendant Cushman Wakefield National Corporation ("Cushman Wakefield"). As part of his employment, Mr. Goldberg was insured under a company-sponsored life-insurance policy ("the Policy"), and he named Mrs. Goldberg as the beneficiary. Under the Policy, Mrs. Goldberg was to receive a $500,000 payout upon Mr. Goldberg's death.
In November 2007, Mr. Goldberg learned that he needed a heart transplant. Shortly thereafter, he informed his supervisor of his need to take leave under the Family Medical Leave Act ("FMLA"). According to the complaint, just a few days after this conversation, Mr. Goldberg's direct supervisor falsely accused him of violating company policies by sending personal emails that contained company-related information. Compl. ¶ 11. The complaint further states that an upper-level supervisor placed Mr. Goldberg on suspension pending an investigation into this matter. Compl. ¶ 14. As part of this investigation, both supervisors met with Mr. Goldberg after he had been placed on administrative leave and "continued to harangue him" about his alleged violation of company policies. Compl. ¶ 16.
Mr. Goldberg underwent the anticipated heart-transplant procedure in January 2008. In the complaint, it is alleged that, while Mr. Goldberg was still in the hospital, he received a letter from a Cushman Wakefield representative that contained a number of conclusions concerning the investigation into his alleged company-policy violations. Compl. ¶ 17. Among other things, the letter informed Mr. Goldberg that he was not to return to the facility at which he had previously worked for any reason, and that the company would try to find him a position at another facility once he returned from administrative leave. Compl. ¶ 17-18.
After receiving clearance from his doctor, Mr. Goldberg informed Cushman Wakefield of his desire to return to work. According to the complaint, there were a number of positions available within the company. Compl. ¶ 21. Nevertheless, Cushman Wakefield terminated Mr. Goldberg's employment, stating that there were no positions open. Shortly after his termination, Mr. Goldberg died from complications due to the surgery.
Both parties agree that when Cushman Wakefield terminated Mr. Goldberg's employment, he lost his right to participate in the company-sponsored insurance plan. As a result, Mrs. Goldberg was not covered by the Policy at the time of Mr. Goldberg's death and, therefore, was not eligible to receive the $500,000 payout.
Consequently, Mrs. Goldberg filed this lawsuit alleging violations of the FMLA and ERISA. Defendants' motion only seeks dismissal of her ERISA claims. Thus, the Court will limit its analysis accordingly.
II. Legal Standards
A. Rule 12(b)(6)
Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when a complaint fails "to state a claim upon which relief can be granted." Rule 8(a), however, which states the requirements for pleading a claim for relief in federal court, simply calls for "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding Rule 8(a)'s simplified pleading standard applies to most civil actions). Consequently, "[a] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting Wright Miller, Federal Practice and Procedure § 1357 (1969)). The Court must liberally construe the complaint in favor of the plaintiff, accepting as true all well-pleaded, non-conclusory allegations. Kaiser Aluminum, 677 F.2d at 1050.
The plaintiff must, however, plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). This requires that the plaintiff plead "enough facts to state a claim to relief that is plausible on its face," and his "factual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 555 (2007). The Court need not credit bare conclusory allegations or "a formulaic recitation of the elements of a cause of action." Id. at 1955. Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
B. Rule 12(c)
Defendants' motion to dismiss is technically untimely because it was filed after Defendants' respective answers (docs. 14, 7). However, a court may treat an untimely Rule 12(b)(6) motion as a Rule 12(c) motion for judgment on the pleadings for failure to state a claim. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). Resolution of Defendants' motion depends solely upon issues of law, which the parties have fully briefed. Therefore, because Defendants raised each of their Rule 12(b)(6) arguments in their answers, the Court will construe Defendants' motion as one filed under Rule 12(c). The standards for the two types of motions are the same. See Mayne v. Omega Protein, Inc., 370 F. App'x 510, 514 (5th Cir. 2010).
III. Analysis
A. ERISA § 510
Section 510, in relevant part, states that, "[i]t shall be unlawful for any person to discharge . . . a participant . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act." 29 U.S.C. § 1140 (2006). Mrs. Goldberg alleges that Defendants violated § 510 by discharging her husband for the purpose of preventing any entitlement to benefits under the Policy.
The complaint contains ample factual allegations to support Mrs. Goldberg's theory. For example, it is alleged that Cushman Wakefield was aware that Mr. Goldberg needed a heart transplant when it first accused him of violating company policies. According to the complaint, these accusations were false. One could infer that Cushman Wakefield made false accusations as part of a plan to fire Mr. Goldberg before his beneficiary became entitled to the life-insurance proceeds.
Furthermore, it is alleged that Cushman Wakefield made Mr. Goldberg the subject of an investigation even after he was on administrative leave. In the letter it sent to Mr. Goldberg while he was recovering from his heart-transplant procedure, Cushman Wakefield relayed its conclusions about the investigation. These factual allegations could be fairly viewed as showing that Cushman Wakefield was not only causing Mr. Goldberg severe distress, but also acting with haste to ensure that his employment was terminated prior to his death.
Finally, Mrs. Goldberg alleges that there were several positions available at Cushman Wakefield when Mr. Goldberg was terminated due to an alleged lack of openings. This suggests Cushman Wakefield had predetermined to terminate Mr. Goldberg's employment without any intention of ever finding him a job at a new facility. Based on these allegations, Mrs. Goldberg states a claim for relief based on § 510.
B. ERISA § 502
Section 502, 29 U.S.C. § 1132, is the remedial provision for a violation of § 510. See 29 U.S.C. § 1140 ("The provisions of section 1132 of this title shall be applicable in the enforcement of this section."). Mrs. Goldberg, thus, seeks to recover the proceeds of the Policy under § 502(a)(1)(B), which provides, "[a] civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). According to Mrs. Goldberg, § 502(a)(1)(B) entitles her to recover the benefits she would have recovered under the Policy but for Defendants' interference in violation of § 510.
Defendants contend that, by its terms, § 502(a)(1)(B) does not address violations of the sort covered under § 510. Rather, according to Defendants, § 510 covers the fact pattern in which a participant or beneficiary has been denied "the attainment of any right to which such participant may become entitled." 29 U.S.C. § 1140. Conversely, Defendants assert that § 502(a)(1)(B) contemplates a civil action in which a plan participant or beneficiary seeks to recover under the terms of a plan under which he already has rights.
There is substantial case law to support Defendants' position. See, e.g., Ponsetti v. GE Pension Plan, No. 09-2430, 2010 WL 2977952, at *10 (7th Cir. July 30, 2010) ("We have previously differentiated between suits under ERISA § 502(a)(1)(B), which we have characterized as essentially a contract remedy under the terms of the plan, from suits under ERISA § 510, actionable through ERISA § 502(a)(3)." (citation omitted)); Eichorn, 484 F.3d at 652 (holding that § 502(a)(1)(B) does not provide redress for § 510 interference claims); Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992) ("In order to enforce the terms of a plan under Section 502, the participant must first qualify for the benefits provided in that plan. Rather than concerning itself with these qualifications, one of the actions [that] Section 510 makes unlawful is the interference with a participant's ability to meet these qualifications in the first instance." (citations omitted)).
However, the rule derived from these cases — that § 502(a)(1)(B) does not remedy violations of § 510 — is not wholly consistent with § 510's statement that "[t]he provisions of section 1132 [(§ 502 of ERISA)] of this title shall be applicable in the enforcement of this section." See 29 U.S.C. § 1140. Section 510 does not exclude subsection (a)(1)(B) from § 502's applicability to § 510. Moreover, this interpretation of § 510's remedial scheme is not without support. See Zimmerman v. Sloss Equip., Inc., 835 F. Supp. 1283, 1290 (D. Kan. 1993) ("The remedies for a violation of ERISA § 510 are those set forth in ERISA § 502(a)(1)(B) and (a)(3)."); Babich v. Unisys Corp., No. 92-1473, 1994 WL 167984, at *3 (D. Kan. Apr. 8, 1994) ("[T]he damages available to an ERISA § 510 plaintiff are found in ERISA's enforcement provision, § 502(a)(1)(B) and (a)(3).") (citing 29 U.S.C. § 1132(a)(1)(B) (a)(3); Cox v. Keystone Carbon Co., 861 F.2d 390, 392-92 (3d Cir. 1988); Zimmerman, 835 F. Supp. at 1290).
Furthermore, while the manner in which the aforementioned courts have read § 502(a)(1)(B) is persuasive as a matter of technical statutory construction, such a reading produces an absurd result in Mrs. Goldberg's case. According to these courts, § 502(a)(1)(B) does not permit Mrs. Goldberg to recover the proceeds of the Policy because she is no longer eligible under the Policy. Yet, according to Mrs. Goldberg's complaint, the precise reason she is ineligible under the Policy is that Defendants' interfered with and prevented her continued eligibility. Thus, applying the rule of the aforementioned cases to the instant facts, Defendants have avoided liability under the Policy, not in spite of, but because of their interference with Mrs. Goldberg's rights under the Policy in violation of § 510. Had Defendants not interfered, they would be liable under the Policy. Such a result is surely not what Congress intended.
Defendants' interpretation gives potential § 510 defendants little reason to abstain from interfering with the rights of a participant or beneficiary under an ERISA policy. For example, suppose an employer terminates (or conspires with its insurance company to terminate) the employment of a life-insurance-plan participant for the purpose of preventing the participant's beneficiary from recovering proceeds upon the participant's death. Neither the employer nor the insurance company is liable to pay the beneficiary under the policy, despite being responsible for the beneficiary's ineligibility for benefits in the first place. In such a scenario, which mirrors Mrs. Goldberg's case, reinstatement under § 502(a)(3) is not available because the participant is deceased. Moreover, even if the participant files suit while he is still living, the best a court can do is award "appropriate equitable relief" under § 502(a)(3), which allows for reinstatement of eligibility under the policy, but does not permit recovery for any losses incurred. Thus, under this rule, potential § 510 defendants have nothing to lose when they interfere with the rights of plan participants or beneficiaries.
Consider another example. Suppose a participant of an employer-provided health-insurance plan notifies his employer on November 28 that he must undergo a high-risk medical procedure. Suppose further that on December 1 the participant's employer terminates his employment, thereby rendering him ineligible for health-insurance benefits under the plan. On December 3, the former participant undergoes the medical procedure and incurs $50,000 in medical expenses as a result. Under the interpretation set forth in the aforementioned cases and advanced by Defendants, the former participant states a violation of § 510, but cannot recover the $50,000 incurred while unlawfully rendered uninsured. His only remedy is to seek reinstatement under § 502(a)(3), which does not make him whole. The Court has difficulty with this reading of § 510.
Given that the Fifth Circuit has not addressed this question, the Court concludes that Mrs. Goldberg has stated a § 510 claim and that this claim entitles her to relief under § 502(a)(1)(B). This conclusion is based on § 510's language, which provides that § 502 shall provide a remedy for violations of § 510, and on the inference that Congress did not intend to leave plaintiffs in Mrs. Goldberg's situation without a remedy. Thus, while Mr. Goldberg was not a participant under the plan at the time of his death, and Mrs. Goldberg was ineligible for benefits at the time of his death, she is nevertheless entitled to pursue relief under § 502(a)(1)(B) on the grounds that, according to her allegations, but for Defendants' violation of § 510, she would have recovered the Policy's proceeds.
IV. Conclusion
Accordingly, Defendants' motion to dismiss is DENIED.
In his decision, the ALJ discussed the testimony of plaintiff, her sister and the vocational expert. He included a detailed summary of plaintiff's medical history, noting her chief complaints, lab tests and results, frequency of medical treatment, and the opinions of various medical providers. (R. 18-33). The ALJ indicated that he gave significant weight to the opinion of Dr. William G. Watson, an examining neurologist, who concluded that "claimant has no limitation in stand, walk, or sit." (R. 28; see also Exhibit 21F).
The ALJ stated, "Dr. Watson specializes in neurology and his opinion is most consistent with the record as a whole." He summarized Dr. Watson's findings regarding plaintiff's exertional capacity:
It was Dr. Watson's opinion that the claimant has no limitation in stand, walk or sit. However, her obesity will limit stamina; otherwise, no neurological findings to restrict activity. He found the claimant capable of occasionally lift and carry 10 to 15 pounds. He noted no upper body restrictions. He found the claimant capable of frequent push and pull with her arms and occasional push and pull with her legs. He found her capable of occasional climb, balance, stoop, kneel, crouch, crawl and reach overhead. He noted that she complained of back pain when she bent over. He found her capable of frequently handling, fingering and feeling, and constant talking and hearing. Dr. Watson further found that the claimant [was] capable of occasionally working in the following environments: extreme cold; extreme heat; wetness/humidity; vibration; exposure to fumes, noxious odors, dust, mists, gases or poor ventilation; and proximity to moving mechanical part[s]. Further, he totally restricted the claimant from working in high exposed places and driving automotive equipment.
(R. 28).
Plaintiff cites the medical source statement completed in December 2005 by "Dr. Hornsby, who has been plaintiff's treating physician since 2000 . . . conclud[ing] . . . that Richardson could walk for four hours, but that her ability to do that and other activities was reduced by pain, which he described as moderately severe." (Plaintiff's brief, p. 9). Plaintiff further points to the opinion rendered by her treating neurologist, Dr. Kesserwani, in March 2007, that she suffers from moderately severe pain and can sit, stand and walk for only one hour each. (Exhibit 18F).
Plaintiff's present and previous attorneys, the ALJ, and the Commissioner's counsel have all referred to this medical source opinion (MSO) as that of Dr. Hornsby. (R. 326-27; Plaintiff's brief, p. 9; Commissioner's brief, p. 9). However, the medical source statement was completed and signed by Kelli McAllister, CRNP. (See R. 329). Although McAllister printed Dr. Hornsby's name on the form, Dr. Hornsby did not sign the form. ( Id.). Accordingly, the December 2005 opinion is that of nurse McAllister, not that of Dr. Hornsby. There is nothing in Dr. Hornsby's treatment notes to indicate that CRNP McAllister ever treated the plaintiff. (See Exhibits 1F, 14F). Plaintiff sought treatment from Dr. Hornsby's office between August 2004 and March 2005 for complaints of back pain; his typed name appears at the bottom of most of the treatment notes. (Exhibit 14F). On the last visit in which plaintiff complained to him of back pain, he restricted her to rest for one to three days, "light duty" thereafter for one week, " not lifting over 30 pounds for one week." (R. 323, March 16, 2005 treatment note) (emphasis added). There are no treatment notes evidencing treatment by either Dr. Hornsby or CRNP McAllister between July 2005 and December 2005. The restriction imposed by Dr. Hornsby in March 2005 conflicts with the lifting limitation of five pounds frequently and ten pounds occasionally which appears in nurse McAllister's MSO, signed in December 2005, and in which McAllister indicated that plaintiff had been functioning at this level for "2 yrs." (R. 329). Nurse McAllister, like Dr. Watson, concluded that plaintiff is capable of sitting for eight hours during an 8-hour workday. (Exhibit 15F).
Dr. Kesserwani actually circled both "moderate" and "moderately severe," indicating that he believed her pain to be moderate to moderately-severe. (R. 363).
"If a treating physician's opinion on the nature and severity of a claimant's impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight." Roth v. Astrue, 249 Fed. Appx. 167, 168 (11th Cir. 2007) (unpublished opinion) (citing 20 C.F.R. § 404.1527(d)(2)). "If the treating physician's opinion is not entitled to controlling weight, . . . `the testimony of a treating physician must be given substantial or considerable weight unless "good cause" is shown to the contrary.'" Id. (citing Crawford v. Commissioner, 363 F.3d 1155, 1159 (11th Cir. 2004)). The Eleventh Circuit has found good cause for discounting a treating physician's report when the report "`is not accompanied by objective medical evidence or is wholly conclusory.'" Crawford, supra (quoting Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)). Additionally, there is good cause where the treating physicians' opinions are "inconsistent with their own medical records," Roth, supra (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) or "when the opinion appears to be based primarily on the claimant's subjective complaints of pain." Freeman v. Barnhart, 220 Fed. Appx. 957, 960 (11th Cir. 2007) (citing Crawford, supra).
"If the ALJ finds such good cause and disregards or accords less weight to the opinion of a treating physician, he must clearly articulate his reasoning, and the failure to do so is reversible error." Pritchett v. Commissioner, Social Security Admin, 315 Fed. Appx. 806, 810 (11th Cir. 2009) (unpublished opinion) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). "When the ALJ articulates specific reasons for not giving the treating physician's opinion controlling weight, and those reasons are supported by substantial evidence, there is no reversible error. Schuhardt v. Astrue, 303 Fed. Appx. 757, 759 (11th Cir. 2008) (unpublished opinion) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)).
The ALJ articulated his reasons for not according controlling or substantial weight to the RFC opinions of plaintiff's "treating physicians." He stated, "[t]heir opinions contain insufficient rationale with no citation to medical evidence that would reasonably support the opinions in that document, and their opinions are inconsistent with the record as a whole and the claimant's history of medical treatment." (R. 29). Both MSOs attributed the plaintiff's pain to degenerative disc disease; Dr. Kesserwani indicated that plaintiff's pain also resulted from her obesity. The ALJ stated the following regarding the plaintiff's back pain:
The [ALJ] finds it significant that diagnostic imaging has shown narrowing of the lower thoracic and upper lumbar intervertebral spaces and spur formation; otherwise, normal lumbosacral spine and mild chronic (L) lumbar spine radiculopathy. The claimant has been found free of acute or chronic vertebrogenic disorders, such as disc herniation, nerve root impingement, spinal stenosis, or facet joint hypertrophy. The claimant, further, has not been observed to have ongoing neurological deficits in the upper or lower extremities, such as reflex and sensory abnormalities, motor incoordination, or decreased muscle strength. Finally, no joint deformities, gait abnormalities, muscle atrophy, substantial limitation of range of motion, or significant spasm have been documented in the record.
(R. 30-31). Dr. Hornsby's and Dr. Kesserwani's treatment notes do not contain significant objective findings regarding plaintiff's back impairment, nor do they indicate that either doctor imposed any long-term functional restrictions on the plaintiff or previously identified any functional limitations. Thus, their own treatment notes provide substantial evidence in support of the ALJ's observation that the limitations expressed in the MSO forms are not supported by the medical evidence of record. The reasons articulated by the ALJ for rejecting the opinions expressed in the medical source statement completed by CRNP McAllister and the clinical assessment of pain completed by Dr. Kesserwani are adequate and supported by substantial evidence. Accordingly, the ALJ did not err by assigning the opinions little weight and otherwise finding them unpersuasive.
At the March 16, 2005 office visit in which Dr. Hornsby imposed the limitation of rest for a few days and light duty for a week thereafter, the note indicated that he instructed plaintiff to return to the clinic in one month and to notify the doctor immediately if symptoms did not improve or worsened. (R. 323). The next treatment note is dated June 16, 2005, three months later, with an assessment of foot pain. (R. 324). There are no functional restrictions or limitations noted in Dr. Kesserwani's treatment notes dated July 2, 2005, to February 5, 2007. (R. 338-360).
CRNP McAllister is not an acceptable medical source for purposes of establishing plaintiff's medically determinable impairments; however, if she actually treated the plaintiff, her opinion regarding plaintiff's limitations would be entitled to consideration as an "other source" pursuant to 20 C.F.R. § 416.913(d), § 404.1513(d). As noted previously, there is no indication in the record that McAllister ever treated the plaintiff. (See Exhibit 1F, 14F; see also 20 C.F.R. § 404.1527(d)(2)(i) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a non-treating source."). Even if McAllister actually treated the plaintiff, the ALJ articulated good cause for discounting her opinion.
Returning to the requirement for a function-by-function assessment, the fact that the ALJ did not include separate sections of discussion with headings for each function is not determinative of whether he performed a function-by-function assessment. The ALJ discussed the various opinions of medical sources who provided function-by-function assessments of plaintiff's ability to perform work activities, along with the remainder of the plaintiff's medical record. (R. 21-27). The ALJ's decision could have been better organized. However, upon review of his decision as a whole, it is apparent to the court that the ALJ reached his findings regarding plaintiff's exertional limitations only after he considered the evidence and drew his own conclusions regarding plaintiff's abilities on a function-byfunction basis. Accordingly, his analysis sufficiently complies with SSR 96-8p. ( See Freeman v. Barnhart, 200 Fed. Appx. 957, 960 (11th Cir. 2007) ("[T]he ALJ complied with SSR 96-8p by considering [the plaintiff's] functional limitations and restrictions and, only after he found none, proceeding to express her residual functional limitations in terms of exertional levels.").
Consideration of Symptoms Resulting from Obesity
Social Security Ruling 02-1p states, "When we identify obesity as a medically determinable impairment, we will consider any functional limitations resulting from the obesity in the RFC assessment, in addition to any limitations resulting from any other physical or mental impairments that we identify." Plaintiff cites Dr. Watson's statement that plaintiff's "obesity most probably is the main cause of her obstructive sleep apnea" and that the "lack of sleep may also impair memory and may also aggravate seizures." (Plaintiff's brief, p. 11; R. 376). Plaintiff also points to Dr. McKeown's June 7, 2004 opinion, arguing that he found that her sleep apnea "led to Adjustment Disorder with mixed features resulting in significant limitations." (Plaintiff's brief, p. 11). Thus, plaintiff identifies sleep apnea as the obesity-related cause of alleged limitations, including mental limitations, in her functioning.
Dr. McKeown did find that plaintiff "does appear to have some difficulties associated with adjustment as a result of her severe sleep disorder" and he diagnosed adjustment disorder with mixed features. (R. 279). However, although he noted that plaintiff reported that her sleep dysfunction affects her memory and concentration, as well as her stamina, he observed that there "appear[ed] to be no gross deterioration with regard to general memory and no indication of current symptoms associated with anxiety or depression." ( Id.). He then stated, "For her sleep disturbance and associated medical problems she demonstrates some significant limitations. For her mental health related issues, she demonstrates a fair to good prognosis." (R. 280). It is not at all clear that Dr. McKeown believed that plaintiff's adjustment disorder resulted in "significant limitations," as argued by the plaintiff. ( See id.). As to plaintiff's mental limitations, the ALJ indicated that he gave significant weight to the July 20, 2004 opinion of Dr. Donald E. Hinton "because his finding is most consistent with the record as a whole and the claimant's history of mental health treatment." (R. 28). He stated:
[D]r. Hinton found the claimant to have mild limitations in restriction of activities of daily living and difficulties in maintaining social functioning; moderate limitations in difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. He further found that the claimant is moderately limited in her ability to understand and remember detailed instructions; her ability to carry out detailed instructions; and her ability to maintain attention and concentration for extended periods of time. It was his opinion that she is able to understand, remember and carry out short and simple instructions. She can attend for two hour periods.
( Id.). Dr. Hinton's conclusions are not inconsistent with Dr. McKeown's opinions. Plaintiff submitted records demonstrating that, on October 23, 2007, more than three years after her evaluation by Dr. McKeown, she sought mental health counseling at Southeastern Psychological Counseling Services. (R. 397-400). The intake note indicates no previous history of counseling. (R. 398). Plaintiff received individual counseling on December 18, 2007 and January 29, 2008; the treatment provider's signature is illegible and his or her qualifications are not indicated in the record. However, there is nothing in the counseling notes which impeaches the ALJ's conclusion. (See Exhibit 23F).
The ALJ addressed plaintiff's sleep apnea, stating, "[a]lthough claimant has alleged continued problems with sleep apnea, the undersigned finds it significant that the claimant has not sought additional treatment from Dr. Prince or undergone additional reevaluation of her C-Pap since October 2003." (R. 30). He continued:
The claimant reported to consulting psychologist Dr. McKeown a severe sleep dysfunction which affected her memory and concentration as well as her stamina. However, Dr. McKeown reported that there appeared to be no gross deterioration with regard to general memory and no indication of current symptoms associated with anxiety or depression. There was no major thought disturbance noted. Although Dr. McKeown suggested that she contact her medical professionals for updated information and treatment for her sleep disorder, there is no indication that she followed his recommendation."
( Id.). Dr. McKeown concluded plaintiff's sleep disorder was likely the "overriding contributor to any other mental health related symptoms and issues she may have." (R. 280). Notably, plaintiff testified at the administrative hearing that the C-Pap machine, used to treat her sleep apnea, does help. (R. 477).
The ALJ stated, "the record fails to contain a credible opinion that the claimant's obesity has increased the severity of her impairments to the extent that additional and significant limitations have resulted." (R. 31). He observed that "no credible physician has outlined any specific limitations of function as a result of the claimant's diagnosed obesity. There is evidence that the claimant was obese prior to her alleged onset of disability. Therefore, [her] obesity is a longstanding problem with which [s]he has successfully worked in the past without significant difficulty." ( Id.).
Plaintiff argues, "Dr. Watson determined that in addition to causing sleep apnea, obesity limited [plaintiff's] ability to walk, stand, and sit. [H]e added under `clinical findings,' that obesity would limit [plaintiff's] stamina." (Plaintiff's brief, p. 11). As plaintiff notes, Dr. Watson found no neurological symptoms which would limit plaintiff's ability to walk, stand or sit; during his examination of the plaintiff, he did not observe any difficulties in walking, standing or sitting. (R. 378). Regarding obesity, Dr. Watson stated:
She is significantly overweight. . . . She sits in the chair in essentially the same position for the entire history and for the portion of the exam that will allow sitting. When asked to walk across the room, she has no difficulty arising from the chair. Her gait across the room is unencumbered. She turns around without difficulty. Heel walking, toe walking, and tandem walking are acceptably performed."
(R. 375). He also noted:
There is history related to degenerative changes on lower spine x-rays but based on her sitting position in the chair and her ability to rise and walk across the room and sit back down without any evidence of discomfort, hers is not a picture of one with significant degenerative disc disease.
(R. 376). Dr. Watson did note that plaintiff's obesity would limit her stamina, but he did not translate this vague observation into a specific durational limitation on standing, walking, or sitting. ( See R. 378). The Commissioner argues that "no physician's contemporaneous treatment notes reflect any functional limitations resulting from [p]laintiff's obesity that were any more restrictive than the limitations the ALJ assessed." (Commissioner's brief, p. 10). The same is true of Dr. Watson's observation about plaintiff's stamina. While his note indicates that plaintiff's obesity will limit her stamina, Dr. Watson did not express any opinion regarding how limited she is in any of these functions. Simply put, no doctor has explained exactly how plaintiff's decreased stamina affects her ability to perform specific work-related functions. As noted above, the ALJ observed that plaintiff "successfully worked in the past" while obese. (R. 31).
Considering the opinions of Drs. Watson, Hinton, and McKeown, the plaintiff's own testimony, and the ALJ's discussion of plaintiff's obesity, mental health diagnosis, and sleep apnea, this court finds the ALJ assessed plaintiff's obesity and obesity-related limitations properly in determining her RFC.
Consideration of Symptoms Resulting from Seizures
The ALJ noted in his decision, "although the evidence indicates that the claimant has been diagnosed with a seizure disorder, the record suggests that the frequency, duration, and sequelae of the claimant's episodes are minimized and the condition is controlled when her medication levels are regularly monitored and she takes her medications as prescribed." (R. 30). Plaintiff argues that, "despite changes in medications and changes in neurologists from Dr. Prince to Dr. Kesserwani to Dr. Keyvani, [her] seizures have continued." (Plaintiff's brief, p. 13).
In support of his conclusion, the ALJ relied on: (1) "[m]edical records dated January 16, 2007, from First Med of Dothan [which] document that the claimant stated that she had been having problems with seizures off and on, but they had not been severe[;]" (2) Dr. Watson's February 11, 2008 conclusion that, "based on the history from the claimant, the claimant's physician at the University of Alabama must have felt that she had nonepileptic events if they recommended her staying off seizure medication despite a 16 year history of being treated for seizures[;]" (3) EEG and MRI results showing no significant abnormalities. (R. 29).
The Commissioner argues that, "[n]otably, no treating physician in their contemporaneous notes placed any functional limitations on [p]laintiff due to her seizure disorder." (Commissioner's brief, p. 11). This is not entirely correct. Dr. Elliot, who first treated plaintiff on January 18, 2008, suggested that plaintiff stop driving due to her reports of seizures. (Exhibit 24F; see also R. 489-90). As the ALJ observed, however (R. 31), when Dr. Jacobs evaluated plaintiff two weeks later, on January 30, 2008, plaintiff reported that she continued to drive an automobile. (R. 371). The ALJ's RFC assessment, nevertheless, includes a restriction from driving automotive equipment and, also, from working around high, exposed places. (R. 19). The ALJ properly considered the plaintiff's symptoms related to seizures, and substantial evidence supports his conclusion that plaintiff's statements regarding the limiting effects of seizures are not credible to the extent they are inconsistent with his conclusion regarding her RFC.
CONCLUSION
Upon review of the record as a whole, the court concludes that the decision of the Commissioner is supported by substantial evidence and proper application of the law. Accordingly, this decision is due to be affirmed. A separate judgement will be entered.
Done, this 30th day of September, 2010.
288 F. App'x at 490. When a defendant brings a motion to dismiss for lack of subject-matter jurisdiction under rule 12(b)(1) based on a plaintiff's failure to exhaust administrative remedies in a timely manner, a court "analyze[s] th[e] case under 12(b)(6) of the Federal Rules of Civil Procedure," unless a court considers materials outside the complaint, in which case "it should . . . treat[] [the] motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure." Douglas v. Norton, 167 F. App'x 698, 704-05 (10th Cir. 2006). Though not jurisdictional, the forty-five day limitation period is not an arbitrary barrier. It is designed to give an agency timely notice of potentially illegal conduct, to discover and correct its own errors and possibly conciliate the claim. See Sampson v. Civiletti, 632 F.2d at 863. An employee who fails to comply with the limitation period is barred from seeking judicial relief in federal court, absent a defense of equitable tolling. See Davis v. United States Postal Serv., 142 F.3d at 1339; Wilson v. West, 962 F. Supp. 939, 944 (1997). i. Exceptions of Equitable Tolling Are Narrowly Construed . "Equitable exceptions, however, have been narrowly construed."Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir. 2003). See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002) (stating that "federal courts have typically extended equitable relief only sparingly."). The Tenth Circuit "has generally recognized equitable tolling of Title VII periods of limitation only if circumstances rise to the level of active deception which might invoke the powers of equity to toll the limitations period."Montoya v. Chao, 296 F.3d at 957. See Godwin v. Sw. Research Inst., 237 F. App'x 306, 307 (10th Cir. 2007) ("Our precedent requires that an ADEA plaintiff demonstrate `active deception' on the part of an employer, the EEOC, or the court."); Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1269 n. 2 (10th Cir. 1996) (noting in a Title VII case that "extraordinary circumstances" are "necessary to justify equitable tolling under established Tenth Circuit precedent."). "Equitable tolling may be appropriate where a plaintiff has been lulled into inaction by an employer's `deliberate design . . . or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 F. App'x 842, 847 (10th Cir. 2008) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the employer's subjective discriminatory purpose." Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235 (10th Cir. 1999) (citation omitted). ii. Equitable Tolling Is Within the District Court's Discretion . The decision whether to equitably toll the limitations period rests within the district court's sound discretion. See Purrington v. Univ. of Utah, 996 F.2d 1025, 1030 (10th Cir. 1993). In Castaldo v. Denver Public Schools, 276 F. App'x 839 (10th Cir. 2008), the Tenth Circuit found that the district court did not abuse its discretion when it chose not to apply equitable tolling to the plaintiff's EEOC charge when the plaintiff alleged: (i) that his employer did not post notices regarding the filing of EEOC charges; (ii) that he was too incapacitated by his shoulder injuries to file an EEOC charge; and (iii) he was proceeding pro se. See 276 F. App'x at 841. The Tenth Circuit found no error in the district court's conclusion that the failure to post EEOC notices was not a sufficient justification for equitable tolling. See 276 F. App'x at 841. See also Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 347 (10th Cir. 1982) (holding that "the simple failure to post . . . notices, without intent to actively mislead the plaintiff respecting the cause of action, does not extend the time within which a claimant must file his or her discrimination charge"). The district court noted that the plaintiff did not allege that his employer intended to actively deceive him by failing to post notices about filing EEOC charges. See Castaldo v. Denver Pub. Schs., 276 F. App'x at 841. The Tenth Circuit also concluded that the statements in the plaintiff's EEOC charge revealed that it was not his alleged incapacity that prevented him from filing a timely charge, but rather the fact that he was unaware of his obligation to do so until he consulted an attorney. See 276 F. App'x at 841. The Tenth Circuit found that "his ignorance of the filing requirement does not entitle him to equitable tolling." 276 F. App'x at 842. Finally, the Tenth Circuit upheld the district court's finding that the plaintiff's pro-se status did not justify equitable tolling, because the plaintiff had the ability to contact an attorney but elected not to do so until well after the expiration of the filing period. See 276 F. App'x at 842. In Godwin v. Southwest Research Institute, the Tenth Circuit held that the district court did not abuse its discretion in refusing to employ equitable tolling when the plaintiff misaddressed his EEOC submission, which arrived forty-four days after the time limit had expired. See 237 F. App'x. at 307-08. InBaker v. Perfection Hy-Test, No. 95-6091, 1996 WL 1162 (10th Cir. Jan. 2, 1996), the Tenth Circuit held that there was no active deception sufficient to toll the 300-day deadline where the plant manager of the plaintiff's employer told the plaintiff, after his demotion, that "restructuring was happening `all over the country,' that plaintiff `couldn't sue,' [and] that he might try but he `wouldn't get to first base.'" 1996 WL 1162, at * 2. The Tenth Circuit found that the statements "at most expressed an opinion concerning plaintiff's likelihood of success." Id. at *7. ANALYSIS The Court finds that Bates failed to exhaust her administrative remedies against the individual Defendants and for the events at the defensive tactics course. To the extent Bates did not exhaust her administrative remedies, the Court lacks subject-matter jurisdiction over her Title VII and NMHRA claims. The Court will also dismiss her claims for punitive damages under the NMHRA. Finally, the Court will dismiss the punitive damages claims under Title VII against the state. I. THE COURT LACKS SUBJECT-MATTER JURISDICTION OVER THE TITLE VII AND NMHRA CLAIMS WHERE BATES FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES . The Court lacks subject-matter jurisdiction over Bates' claims against the individual Defendants and her claims based on the events at the defensive tactics training course, because Bates failed to exhaust her administrative remedies for these matters. Consequently, the Court dismisses these claims for lack of subject-matter jurisdiction. The Defendants argue Bates has not exhausted her administrative remedies against any of the named individual Defendants, because her Charge names only NMCD as a respondent. See Memorandum at 5 (citing Charge). The individual Defendants argue that, because Bates seeks damages under Title VII and the NMHRA against them in their individual capacities, she was required to name them as respondents during the proceedings in which she exhausted her administrative remedies. See Memorandum at 5 (citing Kane v. Christian Brothers of the College of Santa Fe Community, 2006 WL 4079684, at *9). The Defendants further argue that Bates may not add individuals, who were not parties to an administrative proceeding, on appellate review of that proceeding. See Memorandum at 5. Thus, the Defendants argue, because no Defendant other than NMCD was named as a respondent on Bates' Charge, her Title VII and NMHRA claims against Gonzales, Bouska, Knipfing, D. Barela, and J. Barela must be dismissed for lack of subject-matter jurisdiction. See Motion at 5. The Defendants also argue that Bates' Charge did not, and could not include her claims pertaining to the defensive tactics course. See Memorandum at 5. The Defendants note that Bates had 300 days to file her charge with the NMHRD. See Memorandum at 5-6. They assert that Bates has not filed an EEOC charge with respect to her claims of sexual harassment and discrimination predicated upon her alleged treatment in the defensive tactics course. See Memorandum at 6. The Defendants also note that the course took place in late March of 2006, and Bates did not file her Charge until November 5, 2007, "long past the 300-day deadline for filing a charge based upon that alleged treatment." Memorandum at 6. Based on this problem, the Defendants argue that, as a matter of law, Bates' Charge cannot be construed to include her untimely allegations regarding the defensive tactics course, and that the Court should dismiss her allegations regarding the defensive tactics course and D. Barela and J. Barela in paragraphs 6-7, 14-24, and 50-60 of the First Amended Complaint for lack of subject-matter jurisdiction. See Memorandum at 6. Bates responds that she fully exhausted her administrative remedies, and that the Court has subject-matter jurisdiction over her Title VII and NMHRA claims. She argues that EEOC Form 5 (5/01) ("Form"), the form Bates used to file her Charge, does not require complaining parties to name individuals. She asserts that "the Form provides the option to name the employer `or' the individuals." Response at 5. She argues that she identified NMCD, and stated that she believed she was being discriminated against because of her gender and age. Bates further asserts that, "[e]ssentially, Plaintiff's Complaint is based on hostile work environment claims and the discrete act [of] NMCD's failure to promote, all of which are identified in Plaintiff's Charge of Discrimination." Response at 5. Bates notes that discrete acts of discrimination are treated differently than hostile work environment claims because "a series of events that constitute a hostile environment claim are considered one unlawful action." Response at 6 (quoting King v. Kempthorne, Nos. CIV 05-0575 JB/WDS, CIV 05-0997 JB/WDS, 2008 WL 410413, at *9 (D.N.M. Mar. 31, 2008) (Browning, J.)). Thus, Bates argues, "so long as one of the incidents included within the claim of hostile environment occurred within the proscribed time period, other conduct that occurred outside of the proscribed time period but contributing to the hostile work environment, is not time barred." Response at 6 (quoting King v. Kempthorne, 2008 WL 410413, at *9). Based on this principle, Bates argues that the alleged harassment she "suffered during the defensive tactics course was part of a larger and continuing hostile work environment which existed throughout the entire Firearms Training and Procedures Course and beyond." Response at 6. She further asserts that, because she filed her EEOC Charge "concerning the second week of the course within the statutory time period, the conduct in the defensive tactics course, which contributed to the hostile work environment, should not be time barred." Response at 6. The Court agrees that Bates failed to exhaust her administrative remedies as to some of her claims. Consequently, the Court finds it lacks subject-matter jurisdiction over those claims, and will dismiss the Title VII and NMHRA claims against the individual Defendants and her claims predicated on the events at the defensive tactics training course because they were not administratively exhausted. A. THE COURT WILL DISMISS THE TITLE VII AND NMHRA CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS. Bates has not exhausted her administrative remedies against any of the named individual defendants, because her Charge names only the NMCD as a respondent. Because Bates named no Defendant other than the NMCD as a respondent on Bates' Charge, and because individuals are not subject to liability under Title VII, the Court will dismiss her Title VII and NMHRA claims against Gonzales, Bouska, Knipfing, D. Barela, and J. Barela for lack of subject-matter jurisdiction. Bates seeks damages against the individual Defendants in their official and personal capacity under Title VII and the NMHRA. See Amended Complaint at 1. Compliance with the administrative grievance procedure is a prerequisite to a suit under Title VII and the NMHRA. For a plaintiff to pursue a Title VII or NMHRA claim against a defendant in court, therefore, the plaintiff must have exhausted his or her administrative remedies with the NMHRD or EEOC. See Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1214 (D.N.M. 2004) (Browning, J.) ("Before a plaintiff can state a valid claim against an individual defendant under NMHRA, however, the plaintiff must first exhaust her administrative remedies."). In Sonntag v. Shaw, the Supreme Court of New Mexico stated that, "[u]nder the NMHRA, a plaintiff must exhaust his or her administrative remedies against a party before bringing an action in district court against that party. . . ."Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. Based on this requirement, the Supreme Court of New Mexico held that, "[i]n neglecting to name [the corporation's owner] personally, [the plaintiff] failed to exhaust her administrative remedies against him. The trial court [had] therefore erred in allowing Plaintiff's discrimination claim to be brought against [the owner] individually." Id. at 243, 22 P.3d at 1193. Similarly, inLuboyeski v. Hill, the Supreme Court of New Mexico addressed a case where the plaintiff "filed a complaint with the Division, naming the School System as respondent and claiming that Kermit Hill, another teacher at the school where [the plaintiff] taught, had touched and made advances toward her in sexually inappropriate ways." Luboyeski v. Hill, at 117 N.M. at 381, 872 P.2d at 354. Hill was "not named as [a] respondent[] in the proceeding before the Division and w[as] only added as defendants on [the plaintiff's] appeal to the district court." Id. at 382, 872 P.2d at 355. The Court found that the plaintiff had not exhausted her administrative remedies against Hill, holding "that parties who have not been parties to an administrative proceeding should not be added on appellate review of that proceeding." Id. at 382, 872 P.2d at 355 (internal citations and quotations omitted). Bates' Charge named the NMCD, but not Gonzales, Bouska, Knipfing, D. Barela, and J. Barela. She does not dispute that she did not name the individual Defendants in her Charge. As such, the EEOC never included the individual Defendants in its administrative assessments. Because Bates did not exhaust her administrative remedies with respect to the individual Defendants, the Court will dismiss the claims against them. Bates also cannot maintain a discrimination suit under Title VII against the individual Defendants in their personal capacities. The Tenth Circuit has held: "Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act." Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (quoting Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993)). See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) ("The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act."). At the hearing, Bates conceded that she cannot sue individuals under Title VII. See Transcript of Hearing at 6:4-6 (taken September 15, 2010) (Court, Reimer) ("Tr."). Consequently, the Court will dismiss the federal sexdiscrimination claims against the individual Defendants with prejudice. The Court's citations to the transcript refer to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers. B. THE COURT WILL DISMISS BATES' TITLE VII AND NMHRA CLAIMS BASED ON THE DEFENSIVE TACTICS COURSE. Bates filed her Charge long past the 300-day deadline for filing a charge based upon that alleged treatment. Bates' Charge did not — and could not have — included her claims pertaining to the defensive tactics course. Bates has not filed an EEOC charge with respect to her claims of sexual harassment and discrimination predicated upon her alleged treatment in the defensive tactics course. As a matter of law, Bates' Charge cannot be construed to include her untimely allegations regarding the defensive tactics course. Consequently, the Court will dismiss for lack of subjectmatter jurisdiction any of Bates Title VII and the NMHRA claims based on the allegations regarding the defensive tactics course and/or the individual Defendants. Bates also makes the argument that she "pursued grievances at every level to the extent that NMCD would allow. However, NMCD ultimately took the position that the grievance procedure must be stayed. Thus, Plaintiff has exhausted her administrative remedies with regard to her claims, including those that arose from the defense tactics course." Response at 6-7. Regarding Bates' contention that pursuing her union's grievance procedure exhausted her administrative remedies, the Defendants correctly argue that "[n]either Title VII, the NMHRA, nor the cases construing those statutes provide that filing a union grievance constitutes exhaustion of an employee's administrative remedies." Reply at 6. The Court agrees that Bates' reliance on her union's grievance has no basis in law. Furthermore, as the Defendants note, her union's grievances also fail to mention the defensive tactics course, so invoking the union's grievances would do her no good, even if her argument had a basis in the law. See Smith v. EEOC, 180 F. App'x 14, 20 (10th Cir. 2006) (rejecting plaintiff's argument that initiating a union grievance within filing period satisfied the policies underlying exhaustion, particularly when the grievance did not include the unexhausted allegations). "In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 109. Bates does not dispute that she did not reference the events in the defensive tactics course in her EEOC Charge, or that the events occurred more than 300 days prior to filing her Charge. On the EEOC Form, under "date(s) discrimination took place," Bates entered "earliest 05-01-2007 "7" and "latest 10-11-2007," and she checked the box indicating that she complained of a continuing action. The defensive tactics course occurred in late March of 2006. At the hearing, Bates conceded that the defensive training course would not be exhausted as a discrete act. See Tr. 4:22-5:14 (Court, Reimer). Bates brings a hostile work environment claim under Title VII.See Amended Compliant at 7-8 ("Defendants have intentionally discriminated against Plaintiff by, among other things . . . [m]aintaining a work environment that was hostile to Plaintiff because of her gender, which environment was severe or pervasive enough to alter her terms and conditions of employment."). Bates is not wrong to argue that "so long as one of the incidents included within the claim of hostile environment occurred within the proscribed time period, other conduct that occurred outside of the proscribed time period but contributing to the hostile work environment, is not time barred." Response at 6. However, she would have the Court construe "hostile work environment" too broadly. In National Railroad Passenger Corp. v. Morgan, the Supreme Court of the United States provided three factors courts consider to determine "if a series of separate acts . . . collectively constitute one `unlawful employment practice.'" 536 U.S. at 120 (quoting 42 U.S.C. § 2000e-5(e)(1)). "[A] series of alleged events comprises the same hostile environment where `the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.'" Duncan v. Manager, Dep't of Safety, City Co. of Denver, 397 F.3d at 1309 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 120). In National Railroad Passenger Corp. v. Morgan, the Court addressed whether an EEOC charge alleging the plaintiff was "consistently harassed and disciplined more harshly than other employees on account of his race" was part of the same hostile work environment claim as "evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets." 536 U.S. at 120. While expressly declining to make a judgment on the merits of the plaintiff's claims, the Court found it could not say that these were "not part of the same actionable hostile environment claim" Id. at 121. In Duncan v. Manager, Dep't of Safety, City Co. of Denver, the Tenth Circuit addressed a plaintiff's hostile environment claim alleging "three groups of acts that plausibly took place during the filing period: (1) the harassing statements by Sgt. Andrews; (2) the spreading of rumors by Litigant. Leone; and (3) the anonymous magazine article placed in her box and the theft of a notebook by an unknown perpetrator." 397 F.3d at 1309. The Tenth Circuit "examin[ed] the acts in the filing period and determin[ed] what acts outside of the filing period [we]re related by type, frequency, and perpetrator. The entire range of related acts constitute[d] the hostile work environment underlying Ms. Duncan's claim." Id. The Tenth Circuit found: The alleged actions of Sgt. Andrews and Litigant. Leone began after Ms. Duncan returned to District Four in late 1996 and continued into the filing period. These acts are related by type, frequency, and perpetrator, thus all these acts, including those before the beginning of the filing period, are within the scope of Ms. Duncan's hostile work environment claim. The alleged hostile actions that occurred before Ms. Duncan returned to District Four, however, are not part of the same hostile work environment as those alleged during the filing period. The acts she alleges immediately prior to her return are an anonymous letter threatening physical violence and Chief Michaud's adjustment of her score on the sergeant's exam. While these acts may have a temporal relation to the behavior of Sgt. Andrews and Litigant. Leone, they are of a different character, they took place while Ms. Duncan was on a different assignment, and they were not perpetrated by the same people. Even if we draw all inferences in Ms. Duncan's favor, we do not think a rational jury could conclude that any of the allegations before her return to District Four are part of the same hostile work environment as those acts alleged during the filing period. Id. Bates' allegations regarding the defensive tactics course fail all three prongs of the test established in National Railroad Passenger Corp. v. Morgan. The alleged events at the course were not of the same nature as those she complained of in her Charge, they did not recur frequently, and they were perpetrated by different parties. With respect to the first prong, the only employment actions alleged in Bates' EEOC Charge are her inability to obtain her firearms qualification and her alleged denial of a promotion based upon her lack of firearms qualification. These actions are different than being "put down, harassed, beaten, injured, and humiliated" by having her pants pulled down while she was beaten with rubberized batons and having a man who outweighed her by 100-pounds lie atop her to restrain her. Amended Compliant ¶¶ 20, 23, 24, at 4, 5. For the second prong, Bates does not allege that such physical sexual discrimination is frequent. From her Amended Complaint, the physical sexual discrimination appears to be limited to the defensive tactics course. Finally, on the third prong, D. Barela and J. Barela supervised the defensive tactics course. See Amended Complaint ¶ 16, at 3; Answer ¶ 16, at 3. Bates does not contend that they were involved in any of the events at the firing range or in denying her a promotion, the events mentioned in her Charge. Consequently, the alleged events at the defensive tactics course do not "collectively constitute one `unlawful employment practice'" with the events listed in Bates' Charge.Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 120. II. THE NMHRA DOES NOT AUTHORIZE PUNITIVE DAMAGES . The Court dismisses Bates' claims for Punitive damages under the NMHRA because the statute does not authorize them. The Defendants argue that the NMHRA does not provide for an award of punitive damages, and that the Supreme Court of New Mexico has "held unambiguously that punitive damages may not be recovered under the NMHRA." Memorandum at 7 (citing Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 443, 872 P.2d 859, 861 (1994); Nava v. City of Santa Fe, 136 N.M. 647, 652, 103 P.3d 571, 576 (2004) (noting that a remittitur is appropriate in NMHRA cases if the jury verdict was intended to punish the Defendant)). In her Response, Bates "acknowledges that punitive damages are not actionable under the NMHRA." Response at 7. The Court agrees that punitive damages are not available under section 28-1-13D of the NMHRA. Section 28-1-13D provides the procedures by which "[a] person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred or where the respondent does business." N.M.S.A. § 28-1-13A. It states that, "if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney fees and the state shall be liable the same as a private person." N.M.S.A. § 28-1-13D. Based on this language, the Supreme Court of New Mexico stated that "[p]unitive damages . . . are not recoverable under the Human Rights Act." Gandy v. Wal-Mart Stores, Inc., 117 N.M. at 443, 872 P.2d at 861 (citing N.M.S.A. §§ 28-1-11(E), 28-1-13(D); Behrmann v. Phototron Corp., 110 N.M. 323, 328, 795 P.2d 1015, 1020 (1990)). While interpreting "actual damages" under § 28-1-13, the Supreme Court of New Mexico noted that "actual damages is synonymous with compensatory damages and . . . compensatory damages are exclusive of punitive damages." Behrmann v. Phototron Corp., 110 N.M. at 328, 795 P.2d at 1020. Consequently, the Court dismisses Bates' claims for punitive damages under the NMHRA. III. TITLE VII DOES NOT AUTHORIZE PUNITIVE DAMAGES IN CLAIMS AGAINST THE STATE . The Court dismisses Bates' claims for punitive damages under Title VII, because the statute does not allow punitive damages in claims against the state. The Defendants argue that Title VII does not permit Bates to seek punitive damages against the NMDC. They assert that, although Bates brings her Title VII claims against all the Defendants, the individual Defendants may not be held liable under that statute. See Memorandum at 7-8 (citing Haynes v. Williams, 88 F.3d at 901 ("[P]ersonal capacity suits against individual supervisors are inappropriate under Title VII.")). The Defendants argue that only the NMCD may be a proper Defendant in these claims, and punitive damages are not permitted in suits against a government, government agency, or political subdivision under 42 U.S.C. § 1981a. See Memorandum at 8. Bates "acknowledges that punitive damages are not actionable against a government, government agency or political subdivision under Title VII." Response at 7. The Court agrees that it should dismiss Bates' claims under Title VII for punitive damages. Title VII does not support personal liability suits against individuals. The Tenth Circuit "has repeatedly held `that personal capacity suits against individual supervisors are inappropriate under Title VII,' which is directed, rather, to the plaintiff's employer." Lewis v. Four B Corp., 211 F. App'x 663, 664-65 (10th Cir. 2005) (citing Haynes v. Williams, 88 F.3d at 899). The Court, furthermore, dismisses the claims against the individual Defendants in this Memorandum Opinion and Order. Moreover, punitive damages are not permitted in Title VII claims against the state. Section 1981a of Title 42 sets forth the damages available in an action under Title VII against a defendant who engaged in unlawful intentional discrimination prohibited under 42 U.S.C. §§ 2000e- 2, 2000e-3, or 2000e-16, which cover discrimination based on sex and include claims for hostile work environment and sexual harassment. See Chavez v. New Mexico, 397 F.3d 826, 831-33 (10th Cir. 2005). A plaintiff may not, however, recover punitive damages from "a government, government agency or political subdivision." 42 § 1981a(b)(1). Consequently, the Court dismisses Bates' claims for punitive damages under Title VII. IT IS ORDERED that the Defendants' Motion for Partial Dismissal of First Amended Complaint is granted.
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