Full opinion text
AMENDED MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss Plaintiffs Amended Complaint for Hostile Work Environment, filed June 9, 2011 (Doc. 53)(“Motion”). The primary issues are: (i) whether Plaintiff Johnathan Gerald has adequately set forth allegations to support his hostile work environment claim in his Amended Complaint for Hostile Work Environment Pursuant to the Court’s Authorization to File Amended Complaint Set Forth in its Memorandum Opinion and Order of May 6th, 2011, filed May 15, 2011 (Doc. 50)(“SAC”); and (ii) whether the Court should grant Gerald leave to file an amended complaint. The Court held a hearing on July 19, 2011. Because Gerald has not cured the defects the Court identified in his First Amended Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed November 2, 2011 (Doc. 19)(“FAC”), the Court dismisses Gerald’s SAC. Because the allegations in the Affidavit of Johnathan B. Gerald (executed June 23, 2011), filed June 24, 2011 (Doc. 55-1), which was attached to the Gerald’s Response to Defendants’ Motion to Dismiss Plaintiffs Amended Complaint for Hostile Work Environment, filed June 23, 2011 (Doc. 54)(“Response”), are, in combination with the allegations in the SAC, sufficient to plausibly state a hostile work environment claim, the Court grants Gerald leave to file an amended complaint. FACTUAL BACKGROUND For the purposes of a motion to dismiss, the Court takes the allegations in the complaint as true. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.l994)(“The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” (citation omitted)). Locksley is the head football coach at the University of New Mexico (“UNM”). SAC ¶ 4, at 2. Defendant Paul Krebs is the Athletic Director at UNM. See SAC ¶ 6, at 2. At all times relevant to SAC, UNM employed Gerald as an assistant coach responsible for working the team’s wide receivers. See SAC ¶ 2, at 1. Gerald’s claims arise from an alleged alteration with Locksley, and UNM’s and Krebs’ subsequent response to this incident. Gerald alleges that, after a team practice session in August of 2009, before the physical altercation between Gerald and Locksley on which Gerald bases his claims, “Locksley physically threatened [Gerald] with bodily harm because of alleged errors or mistakes by [Gerald’s] receivers during the practice and [Gerald’s] coaching.” SAC ¶ 14, at 2. Gerald further alleges that, on or about September 20, 2009, during a coach’s meeting at the UNM athletic facility, “during a coach’s meeting at the UNM athletic facility after a loss the day before, Defendant Locksley became verbally abusive with the coaching staff because of the performance of the offensive team in a game the day before.” SAC ¶ 15, at 3. Locksley then directed questions toward [Gerald], asking him about a particular play, to which [Gerald] indicated that he would run the play in whatever manner [Locksley] wanted. Locksley again asked the [Gerald] about the play and [Gerald] again said he would run the play as the [Locksley] wished. Locksley became furious at [Gerald] and swore at him, and suddenly approached [Gerald] in an aggressive manner. Plaintiff Gerald was physically attacked by ... Locksley, who choked him and punched him in the face, injuring him, and continued to attack him until other coaches pulled ... Locksley off [Gerald]. SAC ¶¶ 16-19, at 3. Gerald alleges that, “[although Defendant Locksley is a Black man, he directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches.” SAC ¶ 31, at 5. On September 20, 2009, Gerald reported the incident to UNM management and the police, including Krebs. Gerald asserts that “Krebs and other UNM officials did not take appropriate measures to handle the situation.” SAC ¶¶ 20-21, at 3. Krebs encouraged Gerald “to minimize and trivialize what had occurred,” and suggested to Gerald “his career would not benefit if he persisted in complaining of Locksley’s behavior and that he should desist from any further action in the matter and from making any statements in regard to the assault.” SAC ¶¶ 22-23, at 3-4. Gerald alleges that Krebs’ statement “were motivated by retaliation and the Plaintiff =s [sic] race, and; [sic] to protect himself and the University athletic program from criticism because of the incident.” SAC ¶ 24, at 4. Gerald alleges that Krebs publically denied and minimized the altercation between Locksley and Gerald, initially issuing a letter of reprimand to Locksley, without imposing further discipline. See SAC ¶¶ 27-28, at 4. Gerald further alleges that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days. See SAC ¶ 24, at 4. Gerald alleges that he and Loeksley “are both African-American and ... Krebs and the UNM administration believed that no serious discipline should be imposed because the incident involved a fight between two Black men.” SAC ¶ 30, at 4. Gerald was placed on administrative leave for the remainder of the football season. Although UNM invited Gerald to return to his employment with the UNM football team the following year, he refused to do. See SAC ¶ 33, at 5. Gerald alleges that UNM and Krebs’ discipline of Loeksley was insufficient to deter further acts of violence. See SAC ¶ 33, at 5. Gerald alleges: The violent acts of Defendant Loeksley were done out of malice and animosity against the Plaintiff, and; the failure of UNM to adequately discipline the Defendant was motivated by racial discrimination where UNM management believed that the Plaintiffs race made him an easy target for retaliation, intimidation and manipulation in order to cover up the incident and avoid bad publicity, thereby ratifying Defendant Locksley’s intentional and malicious conduct. SAC ¶ 35, at 5. Gerald contends that the incident has made him unmarketable in the college football coaching market. See SAC ¶¶ 38-41, at 6. On January 5, 2010, Gerald filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). His EEOC Charge named only UNM as the respondent. See EEOC Charge at 2. Moreover, in his EEOC Charge, Gerald did not check the box for retaliation; he checked only “race” as the basis for his claims of discrimination. EEOC Charge at 2. The narrative portion of the charge lists a number of grievances and states: Statement of Discrimination: I was hired by the Respondent on December 19, 2008, as a Full time Football Coach. During the time of my employment my supervisor (Head Coach) has subjected me to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning my decisions, and cursing me in front of my peers and students. On September 20, 2009, my supervisor physically assaulted me by choking and punching me about the face. I reported this to management and nothing was done. These conditions have made my working atmosphere hostile to which it has affected my performance of duties. I believe that I have been discriminated against because of my Race (Black) in violation of Title VII of the Civil Rights Act of 1964 as amended. EEOC Charge at 2. PROCEDURAL BACKGROUND On July 30, 2010, Gerald filed suit against Loeksley and UNM, raising claims for assault and battery, race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 (“NMHRA”), and First-Amendment retaliation. See Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed July 30, 2010 (Doe. 1) (“Complaint”). Loeksley and UNM filed a motion to dismiss Locksley’s original Complaint, see Defendants’ Motion to Dismiss, filed August 25, 2010 (Doc. 6), and in response, Locksley filed his FAC, which added Krebs as a Defendant and raised several additional claims — i.e., retaliation under Title VII and the NMHRA, a denial of equal protection, and breach of contract. Locksley also added a claim for punitive damages in Count VI of his FAC. The Defendants withdrew their original motion to dismiss, based on Gerald’s decision to amend. See Notice of Withdrawal of Defendants’ Motion to Dismiss, filed October 28, 2010 (Doc. 17). The Defendants filed their Motion to Dismiss Plaintiffs First Amended Complaint, filed December 6, 2010 (Doc. 23)(“First Motion to Dismiss”), in which they moved the Court, pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Gerald’s FAC in its entirety. The Defendants asserted that the allegations in Gerald’s FAC fail to establish his claims. On April 21, 2011, Gerald substituted attorney Santiago E. Juarez for his former counsel Dennis W. Montoya. See Notice, filed April 21, 2011 (Doc. 46). The Supreme Court of New Mexico indefinitely suspended Mr. Montoya’s license to practice law, and forbade him from “provid[ing] any legal services in connection with cases in which any of his present or former clients are or were involved.” In Re Dennis W. Montoya, No. 32,397, Order at 2 (N.M. Apr. 25, 2011)(Doc. 56). Mr. Juarez took over a number of cases from Mr. Montoya. On, May 6, 2011, the Court filed its Memorandum Opinion and Order, granting the First Motion to Dismiss. See Doc. 47 (“MOO”). The Court held that, because Gerald failed to exhaust his administrative remedies, it lacked subject-matter jurisdiction over Gerald’s retaliation claim and his claims against Locksley and Krebs, and the Court accordingly dismissed Gerald’s retaliation claim, and his claims against Locksley and Krebs under Title VII and the NMHRA, without prejudice. The Court dismissed the remaining claims with prejudice. In particular, the Court noted that Gerald did not suffer an adverse employment action, which renders any attempts to amend the complai t bring a discrimination claim futile. See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005)(stating that a prima-facie case of discrimination requires a plaintiff to demonstrate that: (i) he or she is a member of a protected class; (ii) he or she suffered an adverse employment action, and (iii) similarly situated employees were treated differently). In dismissing Gerald’s constructive discharge claim, the Court stated: “Gerald has not set forth allegations that would rise to the level of a hostile work environment or the more demanding standard for establishing constructive discharge.” MOO at 74. After noting that the allegations in the FAC failed to state a hostile work environment claim, the Court stated that “[i]f, subject to rule 11, Gerald amends his Complaint to advance the facts alleged in his EEOC Charge in support of his hostile work environment claim, then he may be able to survive a motion to dismiss.” MOO at 43. The Court explained: The Court grants Gerald leave to file a second amended complaint for a hostile work environment claim. While the allegations in his FAC do not raise to the level of a hostile work environment, the allegations in Gerald’s EEOC Charge, combined with his allegations that Locksley threatened, hit, and choked him, may, under the totality of the circumstances, amount to a hostile work environment. For some reason, Gerald did not include allegation in his FAC that he set forth in his EEOC Charge. In the EEOC Charge, Gerald alleges that he was “subjected ... to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning [his] decisions, and cursing [him] in front of [his] peers and students.” EEOC Charge at 2. The physical attack combined with other threats and abuse and public humiliation in front of his peers and students may push his hostile work environment claim across the line from possible to plausible. If he can, under rule 11, put what is in his EEOC Charge into an amended complaint, he may be able to establish a hostile work environment claim that can survive a rule 12(b)(6) challenge. MOO at 74-75. Accordingly, the Court granted “Gerald leave to file, subject to rule 11 of the Federal Rules of Civil Procedure, a second amended complaint bringing a hostile-work-environment claim within ten days of the Court’s filing this order.” MOO at 103. Also on May 6, 2011, the same day that the Court issued its MOO, the Court issued a Scheduling Order. See Doc. 48. The Scheduling Order set a June 6, 2011 deadline for Gerald to file an amended complaint. See Scheduling Order at 1 (“The Plaintiff shall be allowed until June 6, 2011 to amend the pleadings and to join additional parties in compliance with Fed. R.Civ.P. 15(a).”). On May 15, 2011, Gerald filed his SAC. Gerald did not “advance the facts alleged in his EEOC Charge in support of his hostile work environment claim.” MOO at 43. Instead, Gerald filed his SAC with substantively identical factual allegations. He brings one count for “harassment, intimidation, retaliation and hostile work environment.” SAC at 6. On June 9, 2011, the Defendants filed their Motion,' moving the Court to dismiss the SAC “in its entirety with prejudice.” Motion at 1. The Defendants assert that, contrary to the Court’s MOO, Gerald failed to add any new allegations to the SAC. Instead, Gerald reasserts “substantially identical allegations” as the Court found inadequate to state a hostile work environment claim when it dismissed the FAC. Motion at 3. The Defendants assert that the only new allegations in the SAC of any relevance to Gerald’s claims or the Court’s analysis are that: (i) “Defendant Krebs is an Anglo-American and the Plaintiff is Black”; (ii) “Defendant Locksley and the Plaintiff are both African-American and Defendant Krebs and the UNM administration believed that no serious discipline should be imposed because the incident involved a fight between two Black men”; (iii) “[although Defendant Locksley is a Black man, he directed his anger and abuse to the Black coaches, and rarely, if ever, became abusive toward Anglo coaches”; and (iv) “the failure of UNM to adequately discipline the Defendant was motivated by racial discrimination where UNM management believed that the Plaintiffs race made him an easy target for retaliation, intimidation and manipulation.” Response at 3 (quoting SAC ¶¶ 25, 30, 31, 35, at 4, 5)(internal quotation marks omitted). The Defendants contend that “[t]hese new allegations ... do nothing to alter the Court’s previous holding that Plaintiff fails to state a claim for hostile work environment.” Response at 3. The Defendants also asset that, “[e]ven though the Court gave Plaintiff leave to amend his complaint only to add a hostile work environment claim, Plaintiff raises two claims for relief under Title VII in the SAC,” both a hostile work environment and a retaliation claim. Response at 5. The Defendants contend that, because the Court previously dismissed Gerald’s retaliation claim for lack of subject-matter jurisdiction, Gerald’s retaliation claim “cannot be re-alleged in the SAC.” Response at 5. The Defendants further assert that, because the Court held that it lacked subject-matter jurisdiction over Gerald’s claims against Locksley and Krebs, Gerald should have brought his SAC against only UNM, and not against Locksley and Krebs. Finally, the Defendants note that Gerald seeks punitive damages, despite the Court’s holding that he cannot seek punitive damages under Title VII. On June 23, 2011, Gerald filed his Response to Defendants’ Motion to Dismiss Plaintiffs Amended Complaint for Hostile Work Environment. See Doc. 54 (“Response”). Rather than contest that the allegations in the SAC are sufficient to survive the Defendants’ Motion or that he amended his complaint in accord with the Court’s MOO, Gerald attached his affidavit to his Response, in which he set forth additional allegations. Gerald states that he “has made an affidavit attesting to a hostile environment in his employment at UNM that included acts of racial discrimination, physical violence by his immediate supervisor and unfavorable treatment by UNM.” Response at 1-2. In the affidavit, Gerald states: My name is Johnathan B. Gerald and I am the Plaintiff in this matter. On December 19, 2008, I was hired by the University of New Mexico as a full-time assistant football coach for the varsity football team, and was assigned to coach the wide receivers. My immediate supervisor at UNM was Head Football Coach Mike Locksley. In addition to coaching duties, a part of the job of an assistant coach is to locate, evaluate and recruit prospective players for the football team from various high schools. In early 2010,1 began to work closely with Coach Locksley in identifying, evaluating and recruiting new players for the 2010 football team. I am African American and Coach Locksley is also African American. I discovered that Coach Locksley was very hard to work with because of his overly aggressive and dominant nature, his habit of demeaning his subordinates, his use of profanity and racial epithets. As I grew to know Coach Locksley, I saw that his profane and demeaning conduct was directed toward the Black coaches, and that he rarely used profanity or derision against the White coaches. He had a habit of addressing other Black coaches and me as “nigger,” both in public and in private, which I found offensive. He also had a habit of using intimidation and threats when a Black was being disciplined or when there was a disagreement, but rarely if ever used such conduct against White coaches. In May of 2009, Coach Locksley and I were in his office discussing several high school prospects we were considering, and I favored a player who had a higher grade point average because I felt that he would be more likely to stay academically eligible for our program. Coach Locksley favored another recruit and became enraged when I continued to disagree with him, and at one point appeared to be ready to attack me and threatened to “slap the shit” out of me. The situation was defused when I finally backed down to avoid a fight. The Coach continued to use profanity and a threatening manner throughout the Spring and Summer of 2009, and continued to call other Black assistants and me “nigger,” when he addressed us. During several coaches meetings the Coach told us that when we became head coaches we should be careful not to hire too many “niggers” as coaches, which was very offensive to me and the other Black assistants. In these meetings and on the field his favoritism toward the White members of the coaching staff was very obvious, he rarely berated them or swore at them like he did the Black coaches. In August of 2009, during a practice session where there were players, other coaching assistants and members of the press nearby, Coach Locksley became enraged at me because of the performance of some of the players I was coaching, and again threatened to “slap the shit” out of me. At this point I stood up to him and told him in so many words that he would regret it if he tried. After the incident on the practice field Coach Locksley began to single me out for abuse, berating me and using profanity when he was displeased with me. On Sunday, September 20, 2009, after we had lost a football game to Air Force, we had a coaches [sic] meeting where we were watching film of the game and Coach Locksley was very angry and upset about the loss, and began to berate and curse at the coaches. He focused on me and kept asking me about the execution of a particular play and how it should be run, and I told him that we would run it anyway he wanted. Coach Locksley turned his chair around to face us and said, “you motherfuckers ...” and then said some words that were incoherent, and got up from his chair and advanced on me in a threatening manner. The Coach then attacked me while I was still sitting, and began to choke me with his hands until other coaches were able to push me away from him; as we separated, Coach Locksley swung at me with his fist and connected with my mouth, which bloodied my lip and caused bruises and abrasions. Coaches Blackshear and Tee Martin were able to get me out of the building before the situation escalated further. I was very upset with Coach Locksley and decided to file a police report of the incident in order to protect myself from a further assault and to make sure that the incident was recorded. That evening I went to the Albuquerque Police Department and filed a police report alleging battery by Coach Locksley. The incident between Coach Locksley and myself became an item of local and national news, and articles appeared in the local newspaper and the incident was reported on local and national television. Initially Coach Locksley and the University denied the incident, but since there had been witnesses, the University eventually acknowledged that it had occurred. Coach Locksley was initially given a letter of reprimand by the Athletic Department because of the attack on me, but after a public outcry, he was suspended for one game and told to apologize to the persons involved and the public. During the events mentioned above, I was called into Athletic Director Paul Krebs’ office for several discussions on the matter. Mr. Krebs tried to enlist me into covering up or minimizing the incident, and told me that I should assist the University in “damage control” over the incident, and that I should not talk to the media, he offered me an extended contract to coach at UNM. At this point I had been contacted by ESPN and other sports news media for an interview about my charges against Coach Locksley. During our conversations, Mr. Krebs told me that talking to the media and making an issue of the incident would be detrimental to my career in coaching, and that going after the Coach or discussing the matter with the media would be “career suicide,” which I interpreted as a threat to harm my career in coaching if I did not play along with the University. I refused to drop the issue and engaged in interviews and discussions with reporters about what happened and about the inadequate discipline given to Coach Locksley. I had requested that Coach Locksley be fired for his attack on me, but instead of terminating the Coach, the University placed me on administrative leave so I would not have to work with him. I was opposed to being placed on administrative leave because I had done nothing wrong. When I was placed on administrative leave I was required to turn in the cell phone and to relinquish the automobile provided to me by the University as a part of my employment. Eventually, I was offered a contract to coach the 2011, season, but I declined it because I would be under the supervision of Coach Locksley and did not believe it would be safe to work under him, and that the racially and personally demeaning behavior by him would continue. Gerald Aff. ¶¶ 1-38, at 1-5 (paragraph numbers omitted). Gerald does not explain why he submitted an affidavit with his Response. He does not state why the Court, on a motion to dismiss, would be permitted to consider the affidavit. See Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1261 (D.N.M.2010)(Browning, J.)(“In considering a motion to dismiss pursuant to rule 12(b)(6), it is improper for the Court to consider materials from outside of the pleadings.”). Gerald does not explain why he did not set forth the allegations in the affidavit in his SAC. Nor does Gerald ask for leave to file an amended complaint. Relying on the allegations in his affidavit, Gerald contends that he has adequately alleged a hostile work environment claim. See Response at 7 (“The Plaintiffs Amended Complaint for Hostile Work Environment ... and the Plaintiffs Affidavit attached as Exhibit 1, provide ample evidence that he has a valid claim for a Title VII hostile work environment action.”). Gerald argues that “[a] fair inference from the circumstances is that an assault by a Black man on another Black man is not worthy of severe punishment.” Response at 9. Gerald states that he does not seek relief from Locksley and Krebs. See Response at 11 (“The references to ‘Defendant’ should not be read to imply that the Plaintiff is seeking relief from these individuals.”). Gerald also states that the request for punitive damages in the SAC’s prayer for relief is an inadvertent mistake. See Response at 11-12 (“[T]he Plaintiff inadvertently requested punitive damages in the Second Amended Complaint, which are not recoverable from UNM. This was a mistake and a carry-over from the previous complaints. No claim for punitive damages against any public entity is intended.”). Gerald does not respond to the Defendants’ challenge to his retaliation claim. On July 11, 2011, the Defendants filed their Reply in Support of Defendants’ Motion to Dismiss Plaintiffs Amended Complaint for Hostile Work Environment. See Doc. 57 (“Reply”). The Defendants contend that Gerald’s affidavit is not properly before the Court. The Defendants further assert that the allegations in the affidavit are insufficient to allege a hostile work environment claim, but that, if the Court considers the affidavit in assessing the SAC, the Court must treat the Motion as a motion for summary judgment and allow the Defendants to present evidence. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir.1998)(“[C]ourts have broad discretion in determining whether or not to accept materials beyond the pleadings. Reversible error may occur, however, if the district court considers matters outside the pleadings but fails to convert the motion to dismiss into a motion for summary judgment.” (citations omitted)). The Defendants further argued that Gerald improperly attempted to untimely amend his SAC by attaching his affidavit to his Response. The Defendants assert that the facts in Gerald’s affidavit were known to him at the time that he filed his original complaint, his FAC, and his SAC. The Defendants thus argue that Gerald has had three opportunities to set forth the allegations in his affidavit in a pleading, but has failed to do so. They contend that “Plaintiffs backdoor attempt to amend his complaint a fourth time should be rejected by the Court.” Reply at 4. The Defendants also assert that Gerald’s failure to bring forth allegations of Locksley’s use of racial epithets until the Defendants challenged his SAC make the allegations suspect in light of the age of this case and that Gerald has made no mention of them in his three pleadings. At the July 19, 2011 hearing, the parties argued in support of the positions in their briefs. Jennifer L. Attrep, the Defendants’ Counsel, argued that a reasonable inference from Gerald’s failure to comply with the Court’s MOO and add his allegations from the EEOC Charge into the SAC is that, subject to rule 11, he could not do so. See Transcript of Hearing at 6:9-12 (Attrep)(“Tr.”). Ms. Attrep also argued that Gerald is trying to amend his pleading “through the backdoor,” in violation of the Court’s scheduling order and rule 15. Tr. at 6:13-23 (Attrep). She argued that the Court should not allow Gerald to file another amended complaint, because amendment is untimely under rule 15(a). Ms. Attrep further contended that amendment is futile, because, were the Court to consider Gerald’s affidavit, the allegations in the affidavit are not enough to survive a motion to dismiss. See Tr. at 16:5-6 (Attrep). She asserted that Gerald’s allegations in his affidavit that Locksley threatened him do not suggest racial animus and argued that “Title VII is not a general civility code.” Tr. at 10:4-20 (Attrep). Ms. Attrep contended that the allegations are similar to those the United States Court of Appeals for the Tenth Circuit found did not establish a hostile work environment in Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994). Ms. Attrep stated that the Defendants have not conducted any discovery in this case. See Tr. at 14:23-25 (Court Attrep). Mr. Juarez similarly stated that “there’s been hardly any movement at all on discovery in this case.” Tr. at 15:1-3 (Court, Juarez). The deadline for discovery is November 2, 2011. See Scheduling Order at 1. Mr. Juarez stated that he did not feel that he could, subject to rule 11 and his ethical obligation, transfer the allegations in the EEOC Charge to the SAC. See Tr. at 17:1-4 (“THE COURT: ... I assume that you didn’t feel under Rule 11 or your ethical obligations that you could just transfer what was in the EEOC complaint to your Complaint. Is that correct? MR. JUAREZ: That is correct Your Honor.”). Mr. Juarez stated: In a rush ... to try to file the Amended Complaint I d[id] not feel that ... it was appropriate under the rules to just sort of take those allegations and do an Amended Complaint that says we reallege as follows and then just sort of like cut and paste those allegations. I think in the sense of trying to be a little bit more adequate, we became actually rather than trying to be more articulate we became less articulate by trying to allege those in the Complaint, getting the affidavit from Mr. Gerald and then attaching that to the response again to dismiss. Tr. at 17:24-18:8 (Juarez). Mr. Juarez first stated that he should have requested a new scheduling order when he first appeared in this case after Mr. Montoya was suspended, see Tr. at 17:9-18, (Juarez), but, after the Court noted that he was in the case when it issued its May 6, 2011 Scheduling Order, Mr. Juarez clarified that he meant that he should have requested more time when the Court issued its MOO, see Tr. at 18:25-19:24 (Court, Juarez). Mr. Juarez also stated that Gerald has moved to Maryland, complicating attorney-client communications. See Tr. at 19:18-20 (Juarez). Mr. Juarez argued that, despite the “inartful articulation” in the SAC, Tr. at 25:21, the SAC contains sufficient allegations that, if the Court draws reasonable inferences from the allegations, Gerald is “close enough to be in the ball game.” Tr. at 22:6-10 (Juarez). Mr. Juarez requested, in the alternative, that the Court give Gerald one last chance to amend his pleadings within ten days. See Tr. at 22:10-25 (Juarez)(“[S]ay you’ve got ten days to fix it or it’s gone.”). Mr. Juarez stated he thought he could transfer the allegations in Gerald’s affidavit to an amended complaint. See Tr. at 23:3-8 (Court, Juarez). LEGAL STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1) “Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “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.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). 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. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion. Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009)(Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit has stated: [T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)). LAW REGARDING RULE 12(b)(6) Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994) (citation omitted). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). A complaint challenged by a rule 12(b)(6) motion to dismiss does not need to set forth detailed factual allegations, but a plaintiffs burden to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that a plaintiffs complaint must set forth more than a threadbare recital “of the elements of a cause of action, supported by mere conclusory statements”). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. at 1940. RELEVANT LAW REGARDING MOTIONS TO AMEND “While Rule 15 governs amendments to pleadings generally, Rule 16 governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir.2009)(citing Fed.R.Civ.P. 16(b)). When a court has not entered a scheduling order in a particular case, rule 15 governs amendments to a plaintiffs complaint. See Fed.R.CivJP. 15. When a scheduling order governs the pace of the ease, however, amending the complaint after the deadline for such amendments implicitly requires an amendment to the scheduling order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v. Billings, 568 F.3d at 1231. 1. Amendments Under Rule 15(a). Rule 15(a) of the Federal Rules of Civil Procedure provides: (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. Fed.R.Civ.P. 15(a)(bold and italics in original). Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir.1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.1990); First City Bank v. Air Capitol Aircraft Sales, 820 F.2d 1127, 1133 (10th Cir.1987), especially when the party filing the motion has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462. Furthermore, “[w]here the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.” Las Vegas Ice, 893 F.2d at 1185. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.1993). See Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir.2005)(quoting Frank v. U.S. West, Inc. and stating that resolving the issue whether to allow a plaintiff to file a supplement to his complaint is “well within the discretion of the district court”). “The ... Tenth Circuit has emphasized that ‘[t]he purpose of [rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.’” B.T. ex rel. G.T. v. Santa Fe Pub. Schs., No. CIV 05-1165 JB/RLP, 2007 WL 1306814, at *2 (D.N.M. Mar. 12, 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.2006)). “Specifically, the ... Tenth Circuit has determined that district courts should grant leave to amend when doing so would yield a meritorious claim.” Burleson v. ENMR-Plateau Tel. Co-op., No. CIV 05-0073 JB/KBM, 2005 WL 3664299, at *2 (D.N.M. Sept. 23, 2005)(Browning, J.)(citing Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.2001)). Although rule 15(a) provides that leave to amend shall be freely given, “the district court may deny leave to amend where amendment would be futile.” Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Servs., 175 F.3d 848, 859 (10th Cir.1999)). It is “well settled” in the Tenth Circuit “that untimeliness alone is a sufficient reason to deny leave to amend, especially when the party filing the motion has no adequate explanation for the delay.” Frank v. U.S. West, Inc., 3 F.3d at 1365-66 (internal citations omitted). The longer the delay, “the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Minter v. Prime Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.2004)). Undue delay occurs where the plaintiffs amendments “make the com plaint ‘a moving target.’ ” Minter v. Prime Equip. Co., 451 F.3d at 1206 (10th Cir.2006)(quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799-800 (10th Cir.1998)). “[Prejudice to the opposing party need not also be shown.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir.1990). “Where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185 (quoting State Distribs., Inc. v. Glen- more Distilleries Co., 738 F.2d 405 (10th Cir.1984)). Along the same vein, the court will deny amendment if the party learned of the facts upon which its proposed amendment is based and nevertheless unreasonably delayed in moving to amended its complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.l994)(noting motion to amend filed “was not based on new evidence unavailable at the time of the original filing”). 2. Amending a Scheduling Order Under Rule 16(b)(4). “Rule 16 only allows such amendments for ‘good cause,’ an arguably more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d at 1230 (quoting Fed.R.CivP. 16(b)(4)). Rule 16(b)(4) states: “A schedule may be modified only for good cause and with the judge’s consent.” Fed.R.CivP. 16(b)(4). The rule “focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment.” Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d 1285, 1313 (D.N.M.2010)(Browning, J.). “Properly construed, ‘good cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts.” Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d at 1313. The Tenth Circuit has interpreted rule 16 as imposing a “good cause” standard to untimely motions to amend when a scheduling order governs the case. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n. 4 (10th Cir.2006). “This requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d at 1205 n. 4. In Minter v. Prime Equipment Co., the Tenth Circuit recognized a “rough similarity between the ‘good cause’ standard of Rule 16(b) and our ‘undue delay’ analysis under Rule 15.” Minter v. Prime Equipment Co. See 451 F.3d at 1205 n. 4. LAW REGARDING EXHAUSTION OF ADMINISTRATIVE REMEDIES Both Title VII and NMHRA claims must be administratively exhausted before being brought in federal court. Title VII creates a work-sharing deferral system between the EEOC and the states that have their own employment discrimination legislation. See 42 U.S.C. § 2000e-5(c), (d). In the states that possess their own employment discrimination legislation, the EEOC must generally “defer” to state or local remedies. EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441, 447 (2d Cir.1995)(quoting 42 U.S.C. § 2000e-5(c), (d)). The NMHRA places New Mexico among those states that have their own employment discrimination legislation and contact agencies. See 29 C.F.R. § 1601.74 (2005). In New Mexico, a complainant can, upon meeting filing requirements, proceed with his or her grievance either through the EEOC or through the New Mexico Human Rights Division (“NMHRD”). Mitchell-Can v. McLendon, 127 N.M. 282, 286-87, 980 P.2d 65, 69-70 (1999). “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. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Once a person elects to proceed with his or her complaint under state law, the NMHRA controls the grievance pi'oeedures for resolving the complaint. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 109, 122 S.Ct. 2061. Whether complainants decide to pursue their grievances with the EEOC or with the NMHRD, they must exhaust their respective regimes’ administrative remedies before seeking judicial review. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996)(“Exhaustion of administrative remedies is a jurisdictional prerequi site to suit under Title VII.”); Mitchell-Carr v. McLendon, 127 N.M. at 288, 980 P.2d at 71 (“[E]xhaustion of administrative remedies is a prerequisite to suit under the NMHRA, and a failure to exhaust administrative remedies may mean that the court lacks subject-matter jurisdiction.”)(citing Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994)). Exhaustion of administrative remedies is central to Title VIPs statutory scheme, because' it provides the EEOC and state deferral agencies with the first opportunity to investigate discriminatory practices, and enables them to perform their roles of obtaining voluntary compliance and of promoting conciliatory efforts. See Patterson v. McLean Credit Union, 491 U.S. 164, 180-81, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994). 1. The Exhaustion of Administrative Remedies Under the NMHRA. The NMHRA makes it an unlawful discriminatory practice for an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity.... NMSA 1978, § 28-1-7. The NMHRA also allows individuals to bring a lawsuit in the appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill, 117 N.M. at 382, 872 P.2d at 355. The NMHRA provides: 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 by filing a notice of appeal within ninety days from the date of service of the commission’s order. NMSA 1978, § 28-1-13A. To bring an NMHRA suit in district court, a plaintiff is required to exhaust the administrative grievance process with respect to all defendants named in the district-court lawsuit. See Luboyeski v. Hill, 117 N.M. at 383, 872 P.2d at 356 (“Since [the plaintiff] has not gone through the administrative process that is prerequisite to suing Locksley and Krebs under the Human Rights Act, we affirm the trial court’s order dismissing those defendants.”). Accordingly, in Luboyeski v. Hill, the Supreme Court of New Mexico affirmed a trial court’s dismissal of respondents who were not named in the administrative proceeding, but who were added to the appeal to the district court. See 117 N.M. at 383, 872 P.2d at 356. As this Court has previously acknowledged, the Supreme Court of New Mexico allows for personal liability under the NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. CIV 08-0756 JB, 2009 WL 2482170, at *7 (D.N.M. July 28, 2009)(Browning, J.). The NMHRA defines “employer” as “any person employing four or more persons and any person acting for an employer.” NMSA 1978, § 28-1-2B. While acknowledging that there is generally no personal liability under Title VII, the Supreme Court of New Mexico has “reject[ed] the proposition that there can exist no individual liability under the NMHRA” Sonntag v. Shaw, 130 N.M. 238, 243, 22 P.3d 1188, 1193 (2001). In Sonntag v. Shaw, a defendant relied on Title VII case law to argue that the owner of a corporation could not be sued as an individual under the NMHRA. See Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. Although it held that the defendant could not be held personally liable, given that the plaintiff had failed to exhaust administrative remedies, the Supreme Court of New Mexico declined to close the door on individual liability under the NMHRA. See Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. The Supreme Court of New Mexico noted: [T]his Court has acknowledged the possibility of individual liability for discrimination claims. Cf. Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994) (affirming the dismissal of individual defendants because the plaintiff failed to exhaust administrative remedies against them); Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 10, 127 N.M. 282, 980 P.2d 65 (citing Luboyeski). As Plaintiff suggests, the potential for individual liability for discrimination claims is rooted in the language of the NMHRA itself, which forbids “any person” from supporting a discriminatory practice. Section 28-1-7(1); see NMSA 1978, § 28-1-2(A) (1993) (including within its definition of “person” for purposes of the NMHRA, “one or more individuals”). Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. 2. The Exhaustion of Administrative Remedies under Title VII. Title VII prohibits an employer from “failing] or refus[ing] to hire or ... discharging] any individual, or otherwise ... discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). “Under longstanding [Tenth] [C]ircuit precedent, supervisors and other employees may not be held personally liable under Title VII.” Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1083 n. 9 (10th Cir.2007). See Haynes v. Williams, 88 F.3d 898, 899 (10th Cir.1996)(“The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.”). Before commencing a Title VII action in federal court in a state with an agency empowered to investigate employment discrimination, like the New Mexico Department of Labor, Human Rights Division, “a plaintiff first must exhaust administrative remedies by filing a charge of discrimination with the EEOC within 300 days of the allegedly unlawful employment practice.” Castaldo v. Denver Public Sch., 276 Fed.Appx. 839, 841 (10th Cir.2008)(citing 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a); Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 & n. 3 (10th Cir.2007)(explaining filing times in deferral states, which are those states that have “an agency empowered to investigate employment discrimination”)). To exhaust administrative remedies, an individual claimant must: (i) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge; and (ii) receive notice of the right to sue. See 42 U.S.C. §§ 2000e-5(b), (c), (e), (f)(1); Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). “[A] plaintiff normally may not bring a[n] ... action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d at 1321. To be timely,' a plaintiff must file the charge with the EEOC within 180 days or with a state agency within 300 days of the complained-of conduct. See 42 U.S.C. § 2000e — 5(e)(1); 29 C.F.R. § 1601.13 (1998); Simms v. Okla. ex. rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d at 1327; Gunnell v. Utah Valley St. Coll., 152 F.3d 1253, 1260 n. 3 (10th Cir.1998). Once an individual receives notice of the right to sue, he or she has ninety days in which to file suit. See 42 U.S.C. § 2000e — 5(f)(1). 3. The Exhaustion of Administrative Remedies Is a Jurisdictional Requirement. In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action. See Jones v. United Parcel Serv., Inc., 502 F.3d at 1183; Alcivar v. Wynne, 268 Fed.Appx. at 753 (“The Tenth Circuit has consistently held that ‘exhaustion ... is a jurisdictional prerequisite to suit under Title VII — not merely a condition precedent to suit.’ ’’(quoting Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005)); Ransom v. U.S. Postal Service, 170 Fed.Appx. 525, 527 & n. 2 (10th Cir.2006)(“[A] claimant under the Rehabilitation Act ... is required to present her claims to the appropriate EEO agency before filing suit.”)(citing 5 U.S.C. § 7702(a)(2)); Wells v. Shalala, 228 F.3d 1137, 1142-43 (10th Cir.2000); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996)(“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.”); Romero v. Union Pac. R.R., 615 F.2d 1303, 1303 (10th Cir. 1980). Without such a filing, federal courts lack subject-matter jurisdiction to entertain discrimination claims under that statutes, and a rule 12(b)(1) motion to dismiss is procedurally proper. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997); Carmody v. SCI Colo. Funeral Servs., Inc., 76 F.Supp.2d 1101, 1103-04 (D.Colo.1999). When a defendant brings a motion to dismiss for lack of subject-matter jurisdiction under rule 12(b)(1) based on a plaintiffs failure to exhaust administrative remedies in a timely manner, a court “analyzefs] th[e] ease 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 Fed.Appx. 698, 704-05 (10th Cir.2006). a. The Scope of the EEOC Charge. “A plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). “We liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. “This more lenient pleading standard contemplates the fact that administrative charges of unlawful employment practices are regularly filled out by employees who do not have the benefit of counsel.” Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 667 (10th Cir. 2005). “[T]he charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. “The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186 (citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir.1998)). “The presumption may be rebutted, however, if the text of the charge clearly sets forth the basis of the claim.” Jones v. United Parcel Service, Inc., 502 F.3d at 1186. Liberally construing EEOC complaints requires courts to look beyond the formalities of the complaint form. The Tenth Circuit held in Jones v. United Parcel Service, Inc. that, while Jones checked “no” to the questions, “[d]o you believe that the employer regarded you as disabled?” and “did you advise you employer that you required an accommodation?”, Jones’ allegations that UPS interfered with a medical evaluation to ensure Jones was not released to return to work, that UPS did not permit Jones to return to work despite releases from two doctors, and that Jones checked a box for retaliation, should have triggered an administrative investigation into whether UPS discriminated against Jones, because he was disabled and whether UPS retaliated against him. 502 F.3d at 1182, 1186-87. Because Jones checked “no” in response to the question whether he advised his employer he needed accommodation and because the text of the charge did not contain facts that would prompt an investigation of such a claim, the Tenth Circuit held that Jones did not exhaust his administrative remedies with respect to his failure-to-accommodate claim. 502 F.3d at 1187. In Duncan v. Manager Department of Safety, 397 F.3d 1300 (10th Cir.2005), a former police officer filed an EEOC charge against the city on April 14, 1998, and checked the box for retaliation. See 397 F.3d at 1314. The officer alleged a series of acts before the date that the EEOC charge was filed, which were supposedly in retaliation for her use of the complaint process. See 397 F.3d at 1314. The Tenth Circuit held that none of the actions that the officer alleged in her EEOC charge were sufficient to support a retaliation claim. See 397 F.3d at 1314. The Tenth Circuit noted that her allegation in her complaint that in August of 1998 — months after filing her EEOC complaint — she was transferred to the police academy in retaliation for filing her original EEOC charge was severe enough to support a retaliation claim. See 397 F.3d at 1314. The Tenth Circuit noted, however, that, because the officer did not file an additional EEOC charge alleging that specific retaliatory act, she did not exhaust her administrative remedies and thus the district court correctly dismissed her claim for retaliation. See 397 F.3d at 1314. In Annett v. University of Kansas, 371 F.3d 1233 (10th Cir.2004), the Tenth Circuit declined to consider Annett’s contention that receiving the position of adjunct lecturer versus adjunct professor constituted a retaliation action, because she failed to exhaust her administrative remedies., See 371 F.3d at 1238. The Tenth Circuit considered Annett’s charge of discrimination filed September 6, 2000, and her. “complaint narrative” submitted on May 31, 2000, and found no reference to a distinc