Citations
- 951 F. Supp. 2d 1136
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendants’ Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity, filed October 15, 2012 (Doc. 27)(“Motion to Dismiss”). The Court held a hearing on January 31, 2013. The primary issues are: (i) whether Defendant Central Consolidated School District (“CCSD”) is an improper party, because the CCSD School Board only, not the CCSD, can sue and be sued under New Mexico Law; (ii) whether Plaintiffs Jeffrey Hunt’s and Alice Ulibarri’s Second Amended Complaint for Damages and Declaratory Judgment, filed September 12, 2012 (Doc. 24)(“Complaint”), asserts any claims based on Hunt’s alleged disability; (iii) whether the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (“FMLA”), permits the CCSD to require the Plaintiffs to use their FMLA leave concurrently with their paid sick leavé; (iv) whether the Plaintiffs state a claim pursuant to 42 U.S.C. § 1983 against the CCSD, because the Complaint makes plausible that a CCSD policy or custom was the moving force behind an equal-protection violation when CCSD, as part of a pretextual CCSD restructuring, reassigned the Plaintiffs because they are Mormon or Anglo; (v) whether the individual Defendants are plausibly liable under 42 U.S.C. § 1985(3) for conspiring to violate the Plaintiffs’ Equal Protection Clause rights by discriminating against them because of their race or religion; (vi) whether the CCSD, and Defendants Ed Marquez, Don Levinski, and Nancy Frazzini, are plausibly liable under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-17 (“Title VII”), based on theories of disparate impact or treatment, retaliation, hostile work environment, or constructive termination, because they disr criminated against the Plaintiffs based on their race or religion; (vii) whether the CCSD is liable for breach of contract, and for the breach of the covenant of good faith and fair dealing, because it breached the Plaintiffs’ employment contracts by allegedly demoting them because of their race or religion; (viii) whether the CCSD is liable for any alleged torts, including common-law conspiracy, tortious interference with contract, and negligent operation of a school building, because the factual allegations make plausible that the CCSD caused the Plaintiffs physical damage; (ix) whether the CCSD is liable to the Plaintiffs under the New Mexico Fraud Against Taxpayers Act, N.M.S.A.1978, §§ 44-9-1 to -14 (“FATA”), because the FATA waives New Mexico’s sovereign immunity, and because the Defendants plausibly violated the FATA; and (x) whether the alleged pretextual demotion by the CCSD, Frazzini, Marquez, and Levinski plausibly subjects them to liability under the New Mexico Human Rights Act, N.M.S.A.1978, §§ 28-1-1 to -14 (“NMHRA”). The Court will grant in part and deny in part the Motion to Dismiss. The Court will dismiss Counts V, VI, VII, and IX, but will not dismiss Counts I, II, III, IV, VIII, or X. The Court concludes that CCSD is a proper party, and will not dismiss any claims against the CCSD or require the Plaintiffs to amend their Complaint to allege their claims against the CCSD School Board. Second, the Court concludes that there are no plausible disability claims alleged in the Complaint in any form, and that none of the causes of action are based upon Hunt’s alleged disability. Third, the FMLA permits the CCSD, in accordance with their policies, to require the Plaintiffs to take their paid leave concurrently with their FMLA leave. In relation to the federal causes of action, the Court concludes that the Plaintiffs plausibly state that, on the disparate-treatment discrimination basis only, the CCSD violated Title VII by demoting them because of Mormon religion. Similarly, the Court concludes that the § 1983 claim against the CCSD and § 1985(3) claim against all' Defendants based -on anti-Mormon discrimination is also plausible. The Court will, dismiss Counts VI, and VII, and IX — the tortiousinterference claim, the common-law-conspiracy claim, and the negligent-building-operation claim — because they sound in tort and, based on the Plaintiffs’ allegations, the State of New Mexico has not waived tort immunity for these claims. The Court will also dismiss the FATA claim in Count V, because the Plaintiffs’ allegations do not plausibly show that FATA entitles them to relief. The Court will allow the Plaintiffs’ NMHRA claim, like their Title VII, to proceed only on the disparate-treatment discrimination basis. Because the Court believes that the Plaintiffs can cure technical errors in their Complaint to allege plausible claims to the extent that they are based on Anglo discrimination, the Court will grant the Plaintiffs leave to amend the Complaint to make those amendments. - . ,
FACTUAL BACKGROUND
For purposes of the Motion to Dismiss, the Court and the Defendants take the Plaintiffs’ allegations in the Complaint as true. The Defendants reserve the right, however, to challenge the veracity of the Plaintiffs’ allegations. See Motion to Dismiss at 2 n. 4.
This case involves an employment dispute arising out of an administrative restructuring of CCSD, which is located in northwestern New Mexico, in San Juan County. See Complaint ¶ 3, at 2. Both Hunt and Ulibarri are Anglo and Mormon. See Complaint ¶¶ 1-2, at 1-2. Defendant Phil Kasper is the CCSD Director of Human Resources. See Complaint ¶ 10, at 8-9. The CCSD Board President is Matthew Tso. See Complaint ¶ 7, at 5; Defendant Scott Nicolay was a CCSD employee and Tso’s campaign manager. See Complaint ¶ 9, at 7-8. Defendant Hoskie Benally , is a CCSD Board member. See Complaint ¶ 8, at 6.
Both Plaintiffs signed a one-year employment contract in July 2011. See Complaint ¶ 38, at 23. Hunt and Ulibarri were supervisory employees for the CCSD in July 2011, when they learned of the restructuring and that they were to be reassigned to different positions as a result of the restructuring. See Complaint ¶ 17, at 12-13. Hunt alleges that Defendants Acting Superintendent Don Levinski and Acting Operations Director Ed Marquez told him that he was to be reassigned from the position of Transportation Director to that of Transportation Coordinator. See Complaint ¶¶ 4-5, at 2-4; id. ¶¶ 16-17, at 12-13. For disciplinary reasons, he was then assigned tó a Grounds Maintenance worker position. See Complaint ¶ 17, at 12-13.
As to Frazzini, the CCSD Human Resources Director, the Plaintiffs allege that “no one wanted to tell Plaintiff Ulibarri of the demotion, and that Defendant Frazzini had been selected to do so over her objection.” Complaint ¶ 30, at 19. Frazzini told Ulibarri that her job as Custodial Supervisor was to be eliminated. See Complaint ¶ 30, at 19. Even though they were being assigned to different positions, their salaries would not be reduced for the duration of their current contract term. See Complaint ¶¶ 17, 30, at 12-13, 19-20. The Defendants allege that the CCSD restructuring disproportionately affected Mormon and Anglo supervisors. Out of ten director positions which were downgraded, four were held by Anglo Mormons, one by an American Indian Mormon, four by non-Mormon Anglos, and one by a non-Mormon Hispanic. See Complaint ¶ 18, at 13.
Hunt initially wanted to work in his newly assigned position, but changed his mind, because he was concerned about the physical stress negatively affecting his diabetes and neuropathy. See Complaint ¶¶ 19-20, at 13-14. He was concerned about the risks to his health that the “extremely physical position” caused, and believed that he was inexperienced and lacked training. Complaint ¶¶ 20, at 13-14. Immediately after the July 2011 meeting, Hunt took sick leave, never returning to work, because of stress related to the new job and his concerns about safety. See Complaint ¶20, at 14. Voicing his concerns about his position to Frazzini, Frazzini and Marquez told Hunt to take his accrued sick leave concurrently with his leave under the FMLA. See Complaint ¶¶ 21-22, at 14-15. Hunt contends that this requést was wrongful and deprived him of his accrued sick leave. See Complaint ¶¶ 21-22, at 14-15. Additionally, Hunt alleges, in paragraphs 24 and 25 of the Complaint, that on September 15, 2011, he informed the CCSD that he was entitled to “reasonable accommodation” and, on October 20, 2011, wrote again, asking that a reasonable accommodation negotiation be held. Complaint ¶¶ 24-25, at 15-16. Hunt resigned on February 24, 2012, without returning to work. See Complaint ¶¶ 27-28, at 17-18.
After Frazzini notified Ulibarri that she was being reassigned from Custodial Supervisor, but before being assigned a permanent position, Ulibarri worked at temporary jobs with the CCSD. See Complaint ¶¶ 29-30, 33-34, at 18-19, 20-21. After learning of her job reassignments, Ulibarri told Frazzini that she needed extensive dental surgery. See Complaint ¶ 33, at 20. They discussed Ulibarri taking sick and FMLA leave; during this discussion, Frazzini suggested that Ulibarri could take leave and then retire. See Complaint ¶ 33, at 20-21. Frazzini, and subsequently Marquez, told Ulibarri that she had to use her sick leave and FMLA leave concurrently, and that she could use only sixty days of her accrued sick leave. See Complaint ¶ 33, at 20-21. Ulibarri was assigned to a permanent position as Payroll and Housing Clerk about three or four months after learning of the restructuring. See Complaint ¶¶ 30, 33-34, at 19, 20-21. Ulibarri resigned effective February 24, 2012. See Complaint ¶¶ 34, 37, at 21, 23.
At some point before August 19, 2011, the Farmington Daily Times news blog published anonymous, online comments disparaging and threatening Mormons; some of the persons commenting alleged that they were responsible for actions that the CCSD took against the Mormons. See Complaint ¶ 43, at 27-28. “One blog post even stated that white, Mormon administrators were being reassigned to positions ‘less damaging’, and that blog was posted before the plaintiffs’ demotions occurred.” Complaint ¶ 43(a), at 27. The Plaintiffs believe that “higher-levels CCSD, employees,” Tso and Nieolay, made “some” of the comments. Complaint ¶ 43, at 28. See id. ¶ 7(j), at 6; id. ¶ 9(j), at 8.
PROCEDURAL BACKGROUND
The Plaintiffs filed their Complaint on September 19, 2012. The forty-five page Complaint includes 109 numbered paragraphs, alleging, in essence, that- the CCSD, a large rural school district, was restructured to discriminate against the Plaintiffs because of their Anglo race and Mormon religion. The Plaintiffs bring suit based on the restructuring, arguing that the CCSD and the individual Defendants conspired to demote them and push them out of their jobs, failed to investigate their complaints, deprived them of due process, failed to “come forward and renounce the conspiracy, and constructively terminated both Plaintiffs because of their national origin, disability, and religion.” E.g., Complaint ¶ 4, at 3. The Plaintiffs contend that these events are the basis for ten counts: (i) Breach of Contract; (ii) Breach of the Covenant of Good Faith and Fair Dealing; (iii) Section 1983 violations; (iv) Section 1985(3) violations; (v) Violation of the FATA; (vi) Tortious Interference with Contract and Perspective Contractual Relations; (vii) Common-law conspiracy; (viii) Violations of the New Mexico Human Rights Act; (ix) Negligent Maintenance and Operation of a School Building; (x) Violation- of Title VII. Count III, alleging an equal-protection violation against the CCSD, also includes the allegation that the CCSD discriminated against Hurt on the basis of his “disability.” Complaint ¶ 59, at 32. Despite references in the Complaint to FMLA leave, alleged disabilities, and requests for accommodations, however, the Plaintiffs do not assert a claim under the FMLA or any statute prohibiting discrimination.
The vast majority of the allegations reference the “Defendants” generally. Paragraph 13 provides: “Whenever in this complaint reference is made to ‘Defendants, and each of them,’ such allegations shall be deemed to mean the act of Defendants acting individually, jointly, and/or severally.” Complaint ¶ 13, at 13. In the factual allegations, however, while the Plaintiffs specifically allege Frazzini’s and Marquez’ conduct in discussing the Plaintiffs’ leave time, the Complaint lacks any reference to any of Benally’s, Tso’s, Nicolay’s, or Kasper’s specific actions in the factual allegations. Instead, the Complaint recites a similar factual allegation for each individual Defendant, alleging that, “upon information and belief,” the particular Defendant “knowingly participated” in numerous generic wrongful acts, such as religion and racial discrimination, conspiracy, and denial of due process. In relation to Tso, for example, the Plaintiffs’ recitation is as follows:
Plaintiffs, upon information and belief, allege that Defendant Tso is an individual who at all material times was a resident of the State of New Mexico.... Defendant Tso is alleged to have knowingly participated in:
a) the discriminatory restructuring;
b) the denial of plaintiffs’ due process and contractual rights to a grievance procedure;
c) the efforts to push the Plaintiffs out of their jobs related to the extra demotion of Plaintiff Hunt and the failure to provide Plaintiff Ulibarri with replacement positions;
d) the failure to provide required accommodation and a required accommodation negotiation to Plaintiff Hunt;
e) the fraudulent attempt to deny Plaintiffs’ sick leave and to alter their Family Medical Leave Act rights;
f) the failure to investigate Plaintiffs [sic] complaints of discrimination, retaliation and fraud;
g) an agreement among the Defendants to terminate Plaintiffs’ employment and/or eliminate any supervisory authority of the Plaintiffs because of the discriminatory attitudes of the CCSD Board, themselves and the other individual defendants;
h) the failure to come forward, and renounce the involved conspiracy;
i) the constructive termination of the Plaintiffs due to all of the above;
j) other discriminatory and retaliatory acts to be designated later following discovery.
Complaint ¶ 7, at 5-6. The Complaint contains no specific allegations what each Defendant did to engage in such wrongful acts.
Although the Plaintiffs state that their contracts “explicitly make CCSD’s policy manual part of the involved contract ... and the involved policies are attached hereto and included by reference,” they did not attach any of the policies. Complaint ¶ 38, at 23-24. Additionally, they allege that specific letters, which the Plaintiffs sent to the CCSD, provided notice of “discrimination, retaliation, and harassment,” but did not attach the letters. Complaint ¶ 43, at 27-28. The Plaintiffs request “compensatory damages for all Counts, punitive damages, double damages and reasonable attorney fees, together with prejudgment interest, post judgment interests, costs, declaratory judgment declaring any contract provisions (specifically including Board Policies) that limit employee due process rights unconstitutionally unconstitutional [sic], and such further relief as the Court deems proper.” Complaint at 45.
The Defendants filed their Motion to Dismiss on October 15, 2012, requesting that the Court grant the individual Defendants qualified immunity on all federal civil rights claims brought against them in their individual capacities under 42 U.S.C. §§ 1983 and 1985, dismiss the Title VII claims against the individuals, and dismiss the Complaint with prejudice. See Motion to Dismiss at 1. The Defendants contend that the Complaint is deficient under rule 12(b)(6) of the Federal Rules of Civil Procedure, because the Plaintiffs do not assert a plausible claim for relief for the federal and state violations in the Complaint. In addition, the Defendants contend that the individual Defendants are entitled to qualified immunity for the claims asserted in Counts III, IV, and X, and that the doctrine of sovereign immunity bars Counts V, VI, VII, and IX. The Defendants request that the Court exercise its discretion and decline to entertain the unnumbered claim for declaratory judgments: Finally, the Defendants contend that any implied violations of the FMLA or any statute prohibiting disability-based discrimination lack a sound basis in . the facts as a matter of law. See Motion to Dismiss at 1-2.
The Defendants discuss first the Plaintiffs’ federal claims: Counts III, IV, and X. They assert that the § 1983 allegation in Count III “contains an ambiguity regarding Count III which must be addressed ...: The caption of Count III indicates that it pertains to ‘the CCSD Defendant Only (Not the Individuals).’” Motion to Dismiss at 8-9. The Defendants contend that the title creates the ambiguity, as the paragraphs within Count III “refer to the ‘actions of the Defendants,’ ‘the actions of the Defendants listed above,’ and the ‘actions of the CCSD,’ suggesting that Plaintiffs intend Count III to have broader applicability than the caption would suggest.” Motion to Dismiss at 9 (internal citations omitted)(quoting Complaint ¶¶ 58-59, at 32). They assert that this ambiguity “highlights yet again the fundamental problem with the Complaint: It rarely, if ever, identifies specifically ‘who did what to whom’ and thereby fails to contain an actionable cause of action under the United States Constitution.” Motion to Dismiss at 9. The Defendants also contend that the Plaintiffs fail to state a claim against the CCSD,
because a municipal agency “is hable only when the official policy is the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and deprivation of federal rights.”
Motion to Dismiss at 9 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.1998)). They assert that the Plaintiffs do not identify any unconstitutional policy or practice, do not plead factual allegations that could support the conclusion that a policy or practice of discrimination exists, and fail to include any allegations that “could establish the requisite direct causal link between the unconstitutional policy or practice and any constitutional injuries suffered.” Motion to Dismiss at 10.
The Defendants also , argue that Claim II fails to state a claim against the individual Defendants, either in their individual capacities or in their official capacities. First, they assert that the pleading is not sufficient regardless whether the Equal Protection Clause violation in Claim III is alleged against the Defendants in either capacity, because the “Plaintiffs never specify ‘who’-did ‘what,’, [sic] and they fail to ‘make -a threshold showing that they were treated differently than others who were similarly situated to them.” Motion to Dismiss at 10 (quoting Barney v. Pulsipher, 143 F.3d at 1312). They assert that, if the Plaintiffs’ allegations in Claim III are against the individual Defendants in their official capacities, there are insufficient allegations to state a claim under “the Monell standard.” Motion to Dismiss at 10-11 (quoting Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). On the other hand, they assert, the allegations also fail to state a claim against the individual Defendants in their individual capacities, because “[n]one of the allegations show any individual Defendant’s personal participation in an equal protection or other constitutional violation.” Motion to Dismiss at 11-12 (citing Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996); Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.2008)). The Defendants contend that the Plaintiffs’ failure to plead who did what to whom makes it “difficult to discern whether Plaintiffs allege that they were treated differently from others affected by restructuring or whether they alleged that all affected employees have an equal protection claim.” Motion to Dismiss at 12 (emphasis in original). The Defendants also argue that, beyond the equal-protection claim based on the Plaintiffs’ race or religion, “Hunt’s allegation that he has an additional basis for relief under § 1983 for ‘disability discrimination’ is equally unsupportable.” Motion to Dismiss at 12. They contend that, notwithstanding the Plaintiffs’ failure to plead how the Defendants’ actions in requiring Hunt to take his FMLA concurrently with his sick leave, allowable under FMLA, applied differently to him than other members of some unidentified class, “these still would not amount to a constitutional violation because the Equal Protection Clause of the U.S. Constitution does not prohibit discrimination on the basis of disability.” Motion to Dismiss at 12 (citing Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Guttman v. Khalsa, 669 F.3d 1101 (10th Cir.2012)). The Defendants additionally contend that the Plaintiffs fail to allege any injury, as they concede that their employment continued for the remainder of their contract terms and that their pay remained the same. See Motion to Dismiss at 13. The Defendants assert that these concessions “nullify Plaintiffs’ claims that they were discriminated against or that they experienced an unlawful hostile workplace,” regardless whether pursued as a § 1983 claim, § 1985(3) claim, Title VII claim, or a claim under the NMHRA. Motion to Dismiss at 13 (citing Gerald v. Locksley, 785 F.Supp.2d 1074, 1107 (D.N.M.2011) (Browning J.); Cates v. Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65). They argue: “Although these claims imply that Plaintiffs were disappointed by their new assignments and potentially Concerned about the possibility of a cut in pay in the future, neither disappointment nor speculative concerns about pay cuts constitute an unlawfully hostile work environment amounting to a constructive termination.” Motion to Dismiss at 4.
In relation to the § 1985(3) claim that the Plaintiffs allege in Count IV, the Defendants contend that § 1985(3) applies only to “‘class-based or racially discriminatory animus,”’ and thus cannot, as a matter of law, apply to religious discrimination or disability discrimination. Motion to Dismiss at 15 (quoting Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.1994)). They contend that, even if Anglos are a protected class, the Court should still dismiss Count IV, because the Plaintiffs do not plead sufficient facts to state a claim for conspiracy: “At best, Plaintiffs offer conclusory allegations that the Defendants entered into ‘an agreement to eliminate Mormon and/or Anglo supervisors, and [took] specific actions in furtherance of the conspiracy.’ ” Motion to Dismiss at 15 (alteration in original)(quoting Complaint ¶ 66, at 15). The Defendants assert, however, that these specific actions are not alleged in the Complaint, neither are factual allegations about any Defendant entering into an agreement, nor are there any factual allegations about any acts that any Defendants took in furtherance of the conspiracy. See Motion to Dismiss at 15-16. According to the Defendants:
In fact, the Complaint contains no factual. allegations to support Plaintiffs’ assertion that the restructuring was the result of a conspiracy to discriminate against Anglos. Plaintiffs do not allege facts that would support their conclusion that any defendant had discriminatory animus. Plaintiffs allege that their right to equal protection was violated by this alleged conspiracy, [Complaint, ¶ 61, at 32], but even that is a conclusion without factual or legal support. As to allegations of conspiracy, no facts plead could establish the existence of a conspiracy, no stated facts indicate what was done in furtherance of the alleged conspiracy, or by whom such actions were taken and there are no allegations regarding the treatment of others similarly situated.
Motion to Dismiss at 16. The Defendants assert that the intracorporate conspiracy doctrine also bars the Plaintiffs’ § 1985(3) allegation, asserting that “ ‘the officers, agents, and employees of a single corporate entity, each acting within the scope of [their] employment, are legally incapable of conspiring together.’ ” Motion to Dismiss at 17 (alteration in original)(quoting Whitehurst v. 230 Fifth, Inc., No. 11 Civ. 0767(CM), 2011 WL 3163495 (S.D.N.Y. July 26, 2011)).
The Defendants point out that the Plaintiffs allege that the CCSD, Levinski, Marquez, and Frazzini violated Title VII, but assert that Title VII does not apply to Levinski, Marquez, and Frazzini, “because they are not the Defendants? ‘employer.’ ” Motion to Dismiss at 17 (quoting Ball v. Renner, 54 F.3d 664, 668 (10th Cir.1995)). The Defendants assert that, to prove a Title VII violation, the Plaintiffs must provide either
“direct evidence of discrimination or ... follow [] the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove a prima facie case of discrimination. To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so,' the burden then shifts back to the plaintiff to show that the plaintiffs protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext.”
Motion to Dismiss at 18 (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.2012)). They contend that the Plaintiffs fail to adequately plead a prima facie case, as the Complaint lacks factual allegations to support the conclusion that discrimination occurred, because the Plaintiffs do not allege any adverse employment action or that they were treated less favorably than others affected by the restructuring who were not Mormon or Anglo. See Motion to Dismiss at 18. The Defendants argue that, although monetary loss is not required to find an adverse employment action, “the Plaintiffs’ allegations simply do not rise to the level of materiality required to constitute an adverse employment action.” Motion to Dismiss at 19 (citing Gerald v. Locksley, 785 F.Supp.2d at 1100).
In regard to disparate treatment and impact, the Defendants argue that the Complaint is insufficient to state a prima facie case, because, although the Plaintiffs allege that five out of ten positions downgraded were Mormon, they do not allege the other- five directors’ religion, and thus cannot show that Mormons were treated differently than any other religion. See Motion to Dismiss at 19-20. The Defendants assert that, additionally, although eight out of the ten directors allegedly downgraded were Anglo, the Defendants have not alleged that Anglo is a protected class, nor have they alleged generally that Anglos were demoted over Native Americans or Hispanics. See Motion to Dismiss at 20. The Defendants also argue that the Court should dismiss the Plaintiffs’ hostile-work-environment allegations, because the Plaintiffs do not plead factual allegations sufficient to demonstrate that “the workplace was permeated with discriminatory intimidation, ridicule, and insult, such that the workplace was abusive.” Motion to Dismiss at 20 (citing Morris v. City of Colo. Springs, 666 F.3d 654, 666 (10th Cir.2012)). The Defendants contend that the only allegations which may rise to the level of facilitating a hostile work place are the hate-speech blog comments, over which the Defendants contend they had no control, and that “the only tenuous linkage to the workplace is the conclusory allegations that it ‘seems clear’ that CCSD employees were involved and that there is ‘a lot’ of gossip, without stating why these accusations are plausible.” Motion to Dismiss at 21. As to the Plaintiffs’ Title VII retaliation claims, the Defendants argue that the allegations cannot, as a matter of law, succeed, because “the only actions that might qualify as protected opposition to discrimination took place after the restructuring and after the issues regarding sick leave and FMLA leave emerged.” Motion to Dismiss at 22 (emphasis in original).
The individual Defendants argue that they are entitled to qualified immunity on the Plaintiffs’ § 1983 and § 1985(3) claims, because, “[ajlthough Plaintiffs contend that their rights were violated as a result of the administrative restructuring and employment leave disputes (based on the FMLA and unspecified rights to be free from disability discrimination), they assert no clearly established constitutional or statutory violation.” Motion to Dismiss at 24. The Defendants assert:
Plaintiffs do not allege what each individual did 'to violate any clearly established right. Even if Defendants Frazzini, Levinski, and Marquez misinterpreted district policy regarding the interplay among an employee’s accrued sick leave, FMLA, and other statutes, absent proof of racially or religiously based animus, such a mistake does not constitute an equal protection violation or a conspiracy to violate the Equal Protection Clause.
Motion to Dismiss at 24.
In relation to the Plaintiffs’ state-law claims, the Defendants argue that, of the seven' claims, the Court should dismiss four under the New Mexico Tort Claims Act, N.M.S.A.1978, §§ 41-4-1 to -30 (“NMTCA”), because the New Mexico Legislature has not waived the CCSD’s sovereign immunity, and the Court should dismiss the other three, as the Plaintiffs fail to allege a cause of action. See Motion to Dismiss at 25. The Defendants assert that sovereign immunity bars the fraud-against-taxpayers, conspiracy, and tortious-interference ‘claims that the Plaintiffs assert against the CCSD, and thus bars the Plaintiffs’ Counts V, VI, and VII. See Motion to Dismiss at 25-26. The Defendants point out that public entities and employees are immune from tort liability except as waived in the NMTCA, and the Plaintiffs have not pled, and cannot identify, any applicable waiver for their tort claims. See Motion to Dismiss at 26. In regard to the Plaintiffs’ fraud-against-taxpayer claim, which the Defendants assert is premised on the Defendants’ harassment, demotion, and commission of fraud against the Plaintiffs for their discrimination complaints, the Defendants contend that, “[e]ven if this theory made sense ... FATA does not include an express waiver of sovereign immunity.” Motion to Dismiss at 27 (citing Martinez v. Kaune Corp., 106 N.M. 489, 491, 745 P.2d 714, 716 (1987), overruled on other grounds by Bober v. N.M. State Fair, 111 N.M. 644, 808 P.2d 614 (1991)). Similarly, the Defendants assert that sovereign immunity bars the Plaintiffs’ claim for tortious interference with contract. See Motion to Dismiss at 26-27 (citing El Dorado Utilities, Inc. v. Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, ¶ 25, 137 N.M. 217, 109 P.3d 305). The Defendants also contend-that sovereign immunity bars the Plaintiffs’ common-law conspiracy claim, because there is no waiver for conspiracy claims, and contend that the “Plaintiffs cannot argue that Defendants’ actions were outside the scope of their duty.... The TCA ‘clearly contemplates including employees who abuse their officially authorized duties, even to the extent of some tortious and criminal activity.’ ” Motion to Dismiss at 28 (quoting Celaya v. Hall, 2004-NMSC-005, ¶ 25, 135 N.M. 115, 85 P.3d 239).
The Defendants argue that, although the NMTCA waives sovereign immunity “for ‘damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in operation of maintenance of any building,” the waiver does not apply. Motion to Dismiss at 29 (quoting N.M.S.A. 1978, § 41-4-6(A)). They assert that the waiver does not apply, because the “Plaintiffs do not allege that the general public was placed at risk, as required for the waiver to apply.” Motion to Dismiss at 29 (quoting Wright v. Bd. of Educ. for the Las Cruces Pub. Sch., No. 12-1305 BB/CG, slip op. at 4 (D.N.M. Sept. 13, 2012) (Black, J.)). According to the Defendants, even if the Plaintiffs alleged that the Mormons or Anglos were at risk, which the Defendants assert the Plaintiffs do not factually allege, “the damages that allegedly flow from that hypothetical risk could not result from bodily injury,” as “[b]odily injury ‘unambiguously exclude[es] emotional injury.’ ” Motion to Dismiss at 29 (quoting Hart v. State Farm Mut. Ins. Co., 2008-NMCA-132, ¶ 10, 145 N.M. 18, 193 P.3d 565; Econ. Preferred Ins. Co. v. Jia, 2004-NMCA-076, ¶ 8, 135 N.M. 706, 92 P.3d 1280). The Defendants contend that, to the extent that any of the Plaintiffs’ claims sound in' contract, sovereign immunity bars those claims, because “ ‘[gjovernmental entities are granted immunity from actions based on contract, except actions based on a valid written contract,’ ” which the Plaintiffs have not alleged. Motion to Dismiss at 30 (quoting N.M.S.A.1978, § 37-1-23).
The Defendants also argue that the Plaintiffs’ state-law claims, substantively, fail to state a claim upon which the Court can grant relief. As to Count I, the Plaintiffs’ breach-of-contract claim, the Defendants assert that, although breach of contract is a question of fact, it may be addressed at the motion-to-dismiss stage in this case, based on the contracts’ plain language. See Motion to Dismiss at 31.
[Tjhere was no breach because the plain language of the employment contracts shows that the Superintendent (Levinski) had the contractual right to specify the Plaintiffs’ duties. Plaintiff Ulibarri’s contract, for example, provides that “the employee shall present himself/herself for duty at such times and places as designated by the Superintendent 'or his or her authorized designee.” Similarly, Plaintiff Hunt’s contract provides that he “shall ..., administer the duties assigned by the Superintendent.” Both Hunt’s and Ulibarri’s contracts unambiguously incorporate the policies of the CCSD, which make clear that “[t]he Superintendent will determine all support staff assignments. Such assignments shall be based on the needs of the District” and that “[t]he transfer of support staff members will be based on the needs of the District. Assignments maybe changed to serve the best interests of the District.” .... Neither the restructuring nor the reassignments can be a breach of contract.
Motion to Dismiss at 31 (internal citations omitted). The Defendants contend that the Plaintiffs’ breach claim based on the Defendants’ failure to investigate “is equally meritless,” because their contract required them to file a complaint with the CCSD School Board, which the Plaintiffs did not do. Motion to Dismiss at 32 (citing Lucero v. Bd. of Regents of Univ. of N.M., 2012-NMCA-055, ¶ 16, 278 P.3d 1043, certiorari denied, 293 P.3d 886 (N.M. Apr. 20, 2012)). According to the Defendants, the Plaintiffs do not allege that they incurred any lost wages or benefits as a result of the alleged breach of contract, and the claims therefore fail as a matter of law, as there are no damages. See Motion to Dismiss at 32-33. Similarly, with respect to the Plaintiffs’ claim alleging that the Defendants breached the covenant of good faith and fair dealing, the Defendants assert that, beyond failing to allege any damages, the Plaintiffs have not alleged any facts to support the conclusion that the Defendants committed an act that “ ‘will injure the rights of the other to receive the benefit of their agreement.’” Motion to Dismiss at 33-34 (quoting Henning v. Rounds, 2007-NMCA-139, 142 N.M. 803, 171 P.3d 317).
The Defendants contend that the Plaintiffs’ Count V — alleging fraud against taxpayers under the FATA — fails to state a claim, because, while the Plaintiffs may provide factual support for an inference that the Defendants’ actions defrauded them, a claim under the FATA requires allegations of fraud against the state. See Motion to Dismiss at 34. The Defendants thus assert that the “FATA simply does not apply.” Motion to Dismiss at 34. They contend that, even if it were possible to construe any of the Plaintiffs’ claims as alleging fraud against the state, “[b]ecause the [] [Defendants’] complaints followed [any] so-called ‘retaliatory’ events, Plaintiffs cannot state a prima facie case for retaliation under FATA.” Motion to Dismiss at 35. The Defendants argue that the Plaintiffs’ FATA claim also fails on the grounds that they failed to comply with the required prerequisites for bringing a FATA claim. See Motion to Dismiss at 35-36.
On substantive grounds, the Defendants argue that the Court should dismiss the Plaintiffs’ tortious-interferencewith-contract claim, because the Plaintiffs’ allegations that the Defendants “played a ‘substantial, active part in securing the unilateral breaches’ of their employment contract with CCSD____are only formulaic conclusions unsupported by allegations of fact describing the alleged role the Defendants played in securing the ‘breach’ of Plaintiffs’ contracts.” Motion to Dismiss at 36 (citing Ettenson v. Burke, 2001-NMCA-003, ¶ 14, 130 N.M. 67, 17 P.3d 440). The Defendants also argue that the Court should dismiss the Plaintiffs’ common-law conspiracy claim in Count VII, because, “[consistent with the rest of the [Complaint], Plaintiffs fail to plead any allegations of fact that support their conclusion that a conspiracy existed.... Plaintiffs have not and cannot identify any ‘independent, unlawful act that causes harm.’ ” Motion to Dismiss at 36-37 (quoting Ettenson v. Burke, 2001-NMCA-003, ¶ 12, 130 N.M. 67, 17 P.3d 440).
As to the Plaintiffs’ NMHRA claim alleged in Count VIII, the Defendants first assert that the Plaintiffs did not follow proper procedures. In relation to Tso, Benally, and Nicolay, the Defendants point out that the Plaintiffs did not charge these Defendants before the Human Rights Commission and that to the extent the claim is alleged against those defendants, the Court must dismiss it. See Motion to Dismiss at 37 n. 25. In relation to CCSD, Levinski, Marquez, and Frazzini, the Defendants contend that the Plaintiffs failed to file a notice of appeal from the Notices of Non-Determination from the Human Rights Bureau (“HRB”) and, therefore, the Court should dismiss the NMHRA claim. Motion to Dismiss at 37-38. The Defendants point out that Plaintiffs’ claims are at least partially, if not totally, based on 2010 events, which they assert “[t]o the extent these claims are based on discrete acts ... they are limited by the 300-day limitation period in the HRA.” Motion to Dismiss at 38 (citing N.M.S.A.1978, § 28-1-10(A); Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC-009, ¶ 11, 139 N.M. 193, 131 P.3d 43).
The Defendants assert that the Plaintiffs do not state a claim for disparate impact and treatment, because they do not identify a specific employment practice or policy which caused a significant disparate impact on a protected group, and they do not allege how the administrative restricting had a disparate impact on Anglos and Mormons. See Motion to Dismiss at 39 (citing Gonzales v. N.M. Dept. of Health, 2000-NMSC-029, ¶ 30, 129 N.M. 586, 11 P.3d 550). The Defendants also assert that the Plaintiffs have failed to state a claim for retaliation, because “[a]s explained in the discussions of Title VII and FATA, all of the allegedly adverse actions occurred before any protected activity by Plaintiffs.” Motion to Dismiss at 39 (emphasis in original)(citing Juneau v. Intel Corp., 2006-NMSC-002, ¶ 11, 139 N.M. 12, 127 P.3d 548). The Defendants argue that the Plaintiffs also fail to state a claim for hostile work environment and constructive termination. The Defendants assert that the inquiry is “ ‘not whether the working conditions were merely difficult or unpleasant, but whether Defendant made Plaintiffs’] working conditions so intolerable, when viewed objectively, that a reasonable person would be compelled to resign; essentially, that she had no other choice but to quit.’ ” Motion to Dismiss at 40 (alteration in original)(quoting Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 16, 150 N.M. 17, 256 P.3d 29). The Defendants contend that the Plaintiffs’ allegations fail to meet this standard, as, “[d]espite the change in their positions, Plaintiffs did not suffer a loss in pay. Accordingly, no reasonable person would feel compelled to resign under the circumstances, particularly when the national economic climate of 2010 and 2011 is taken into consideration.” Motion to Dismiss at 40. They assert that “the restructuring and work conditions at CCSD simply were not objectively intolerable such as to establish a plausible claim for a hostile work environment or constructive termination.” Motion to Dismiss at 41. The Defendants argue that the Plaintiffs’ Count IX — negligent maintenance of a school building pursuant to N.M.S.A.1978, § 41-4-6—fails to state a claim, because the Plaintiffs did not suffer any bodily injury, and none of the Defendants’ alleged practices or policies posed a risk of harm to the general public. See Motion to Dismiss at 41 (citing Econ. Preferred Ins. Co. v. Jia, 2004 NMCA-076, 135 N.M. 706, 92 P.3d 1280).
The Defendants argue that the Court should dismiss any of the Plaintiffs’ claims for punitive damages based on Title VII or any state law against CCSD, or against the individual Defendants in their official capacities, because punitive damages are unavailable for these claims. See Motion to Dismiss at 41-42 (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); N.M.S.A.1978, § 41-4-19(C)). The Defendants point out that the Plaintiffs appear to be requesting the Court to grant them declaratory judgment and “ ‘declar[e] any contract provisions (specifically including Board Policies) that limit employee due process rights unconstitutionally unconstitutional [sic].’ ” Motion to Dismiss at 42 (quoting Complaint at 45). The Defendants argue that the Court should “exercise its sound discretion to decline to entertain Plaintiffs’ declaratory judgment action,” because the Plaintiffs’ improperly pled the claim by failing to attach the alleged unconstitutional policy. Motion to Dismiss at 42. The Defendants also contend that the Court should decline to entertain the request, because the Plaintiffs cannot demonstrate a good chance of being injured in the future, as they are no longer CCSD employees. See Motion to Dismiss at 42-43 (quoting Barney v. Pulsipher, 143 F.3d at 1313 n. 3). Additionally, the Defendants assert that the Court should decline to grant declaratory judgment as to the Plaintiffs’ contention that the policy should outline a procedure for the CCSD’s alleged “ ‘takings of constitutional property,’ ” because there is an alternative at law which is better and more effective: a lawsuit for damages. Motion to Dismiss at 43 (citing State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir.1994)). For these reasons, the Defendants ask the Court to dismiss the Complaint in its entirety.
On November 19, 2012, the Plaintiffs filed their Response to Defendants’ Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity. See Doc. 32 (“Response”). The Plaintiffs assert that “[t]he Response will ... attempt to focus the Court’s attention on the actual words of the Complaint, and not the Motion’s characterizations of those words.” Response at 1. The Plaintiffs argue that, whereas the Defendants charge that the Plaintiffs’ factual allegations are conclusory and without support, “[a]ll allegations (in any Complaint) are conclusory to one extent or another because they are made without any evidence offered to support them.” Response at 4. According to the Plaintiffs, they
have gone to great pains to provide a complaint, containing conspiracy allegations with a great amount of detail, taking some 28 pages to provide the factual predicates of their claims, in an effort to provide the Court and Defendants full and fair notice of their claims herein.... Plaintiffs state affirmatively that they believe that any claim against any person for any act be “without prejudice’ so that Plaintiffs can continue to in good faith plead everything they believe they will be able to prove (when proving time arrives). Plaintiffs .insist that their claims are not just ‘plausible’ but likely, given the facts they have plead.
Motion to Dismiss at 4. The Plaintiffs argue that they have adequately pled a municipal liability claim against the CCSD, under “both a direct proof and McDonnell Douglas formulation case.” Motion to Dismiss at 4-5. The Plaintiffs refer the Court to paragraph 14 of their Complaint, asserting that, “[i]ndeed, the involved policy and many of the involved specific actions as well as the individuals who carried out the actions of CCSD are directly identified in this page-and-a-half long explanation of the policy, its confines, its function and its actions and the specifically relevant defendants.” Response at 6. They note: “[Tjhree of the named Defendants had little direct contact with Plaintiffs — Defendants Tso, Nicolay and Benally. Nevertheless, they are the prime movers of the explicit, blogged conspiracy to terminate Mormon/Anglo senior supervisors.” Response at 6-7 (citing Complaint ¶ 43, at 27-28). The Plaintiffs assert that their allegations about other CCSD’s previous complaints, while “not guaranteeing] the success of a claim against an employer,” is factual support for the existence of such a discriminatory policy. Response at 7-8. The Plaintiffs assert:
Benally’s involvement (as all of the Defendants [sic] conduct is) is disclosed in Paragraph 8, and Benally’s involvement in the direct employment problems addressed here is tangential, but/and Defendant Benally regularly worked on the School Board and participated directly in the harassment of Manning and Epperson by regularly attempting to secure an audit of his work as the District’s Finance Director through legislative and administrative meetings without any reasonable basis for the audit throughout 2010 and 2011, and with the offending audit turning up no mishandling of District funds. Defendant Benally is the first actor of the involved conspiracy, and was instrumental in securing the election of Tso, and is alleged to have participated in the planning and accomplishment of the goals of the conspiracy.
Response at 8. According to the Plaintiffs, “fa]ll of the named parties, as pled, are .responsible for the acts of the others because of the conspiracy, their true agreement to accomplish an illegal goal through mutual cooperation, and plaintiffs will subsequently prove the existence of the conspiracy.” Response at 8 (emphasis in original). Additionally, the Plaintiffs assert that the “Defendants seem to believe that the allegations of direct evidence and allegations fitting the McDonnell Douglas formulation of indirect proof are not enough to state claims.” Response at 9. The Plaintiffs assert that, whereas the Defendants repeatedly argue that the Plaintiffs have not adequately pled their Title VII or the NMITRA claims, because they do not allege that they were treated differently than similarly situated persons, “the ‘similarly-situated’ analysis is a related, alternative means of proof, and not strictly required in pleading. Plaintiffs have pled they can prove intentional discrimination and McDonnell Douglas formulation, and both or either suffice here.” Response at 9. They add: “If this pleading is insufficient, pursuant [to] the Court’s decision, a simple good faith amendment of the pleading will easily set it right.” Response at 9. The Plaintiffs contend that “nothing about N.M.S.A.1978, § 22-5-4(E) reflects any limitation upon suing a New Mexico School District directly, it merely gives local Boards of Education the ability to sue or be sued.” Response at 9 (citing Williams v. Cent. Consol. Sch. Dist., 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978; Cent. Consol. Sch. Dist., No. 22 v. N.M. Env’t Dept., 123 N.M. 386, 940 P.2d 1181 (1997) (table)). In'relation to the § 1983 municipal liability claim, the Plaintiffs contend that the” claim is properly-pled as the intentional proof and McDonnell Douglas formulations are both accepted pursuant to equal-protection claims. See Response at 10. The Plaintiffs state that they “are not attempting to sue the Individuals for Section 1983 claims.” Response at 12. The Plaintiffs note that “[t]he Section 1983 claim stated and pursued is against Defendant CCSD alone, and arises from the adoption of the motivating, clearly illegal policy.” Response at 12.
The Plaintiffs argue that the breach-of-contract claim is adequately pled, as the Superintendent of Schools does not have the presumptive right to cancel administrators’ contracts' without meeting certain conditions precedent, which the Plaintiffs assert that they explicitly alleged were not met here. See Response at 10-11 (citing Complaint ¶ 43, at 27-28). The Plaintiffs contend:
Over-riding ... is the fact that the involved contracts be interpreted and performed in accordance with State and Federal law, and Mormon/Anglo discrimination is not in accordance with the law. Thus, even if Defendants could prove the conditions precedent for the Superintendent’s cancellation of the involved contracts, and the Plaintiffs could prove that the actions were taken ... precisely because of discriminatory animus, the involved conditions precedent would not over-ride the prohibition of discrimination.
Response at 11. The Plaintiffs assert that, because Hunt could not physically work in the position which' the CCSD offered to him, never worked in the position, and because CCSD did not offer a reasonable accommodation, the CCSD constructively terminated him. See Response at 12-13 (quoting Complaint ¶¶ 27-28, at 17-18). The Plaintiffs assert that their Complaint adequately pleads the factors laid out in Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir.1998), for “a claim of bad faith failure to participate” in the accommodation process. Response at 14.
The Plaintiffs argue that Ulibarri’s constructive termination allegations are adequate, because she alleges that she was not given a reasonable replacement position for at least three months, she had been repeatedly urged to resign, her complaints were not investigated, previous complaints had not been investigated or remedied, her leave rights were “artificially curtailed,” she had watched all other Anglo/Mormon senior supervisors be terminated, demoted or forced to resign, her contract was repeatedly breached, and she gave the CCSD some six months to take remedial action. Response at 15-16 (citing Complaint ¶ 36, at 22-23). According to the Plaintiffs, the allegations contained in paragraph 36 of their Complaint also suffice to state a workplace harassment claim. See Response at 16-17 (citing Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 16, 150 N.M. 17, 256 P.3d 29). They also contend that the Defendants’ citation to 29 C.F.R. § 825.207(A) for the proposition that employers are allowed to require employees to take leave under the FMLA concurrently with accrued paid leave is inaccurate, asserting: “Instead it states the opposite, ‘[g]enerally FMLA is unpaid leave.’ ” Response at 17 (quoting 29 C.F.R. § 825.207(A)). They assert that the regulation leaves the substitution at the employee’s discretion, and the Plaintiffs never requested to use the FMLA leave instead of their accrued paid leave. See Response at 17 (citing Complaint ¶¶ 23-24, 27(f), 33-34, 36(e), at 15-16, 18, 20-22). The Defendants point out that the CCSD’s sick leave policy does not provide that the “CCSD or its:employees may require paid leave and FMLA run concurrently.” Response at 18 (citing Complaint ¶ 41, at 25-26). The Defendants “object to the oft-asserted characterization of their Complaint as not containing assertions of discriminatory animus,” and argue that discriminatory animus, “specifically Mormon/Anglo animus,” is repeatedly pled. Response at 18-19 (citing Complaint ¶¶ 14, 38, 45, 86, at 10, 23-24, 29, 28-29).
The Defendants contend that “a demotion and promised loss of pay is a materially adverse employment action pursuant [to] standing Tenth Circuit precedent.” Response at 19-21 (citing Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1279-80 (10th Cir.2010)). They contend that “it is ‘clear that the pled demotions, loss of prestige, promise of lost future pay, as well as their different treatment pursuant an already-discriminatory ‘restructuring,’ inducements to resign and threats of lost accrued leave suffice as adverse employment actions pursuant Plaintiffs’ discrimination and equal protection claims.” Response at 21 (citing Jones v. Oklahoma City Pub. Sch., 617 F.3d at 1279-80). Responding to the Defendants’ assertions that the Plaintiffs have no damages, the Plaintiffs state: “[A]ny an all argument that Plaintiffs were only subjected to ‘emotional distress’ or have only plead cognizable emotion distress claims with regards to the Title VII, NMHRA, Federal Equal Protection Clause claims and the State claims as well are unavailing.” Response at 22.
The Plaintiffs argue that their § 1985(3) claim is sufficiently pled, because race and religion discrimination is actionable under § 1985(3). See Response at 22-23. The Plaintiffs contend that they “have pled Mormon/Anglo discrimination throughout the Charge-filing and Federal Complaint process, and the discrimination is repeatedly referred to as racial and color discrimination therein,” and that “the Tenth Circuit has recognized religion as a basis for Section 1985 claims.” Response at 22 (citing Taylor v. Gilmartin, 686 F.2d 1346, 1360 (1982)).
The Plaintiffs also, argue that “[i]t is longstanding law in New Mexico that, the personnel manuals or personnel regulations of state agencies are implied-in-fact contracts which may be sued upon by terminated state employees, despite N.M.S.A. 1978, § 37-1-23, because the manual or regulations supply the necessary writing.” Response at 23 (citing Garcia v. Middle Rio Grande Conservancy Dist., 1996—NMSC-029, ¶¶ 15-17, 121 N.M. 728, 918 P.2d 7). The Plaintiffs, assert that their Complaint alleges facts about the School Board regulations being part of the contract. They contend that the duty of good faith and fair dealing thus applies, and that, the Supreme Court of New Mexico has found that school boards are subject to liability for these implied contracts. See Response at 23-25 (citing Handmaker v. Henney, 1999-NMSC-043, ¶ 19 n. 2, 128 N.M. 328, 992 P.2d 879). According to the Plaintiffs, “[h]ere there is a written contract [in which the law implies a covenant of good faith and fair dealing], and that written contract allows suit pursuant [to] N.M.S.A.1978, § 37-1-23.” Response at 25.
The Plaintiffs argue: “Contrary to the Motion [to Dismiss], the FATA statute provides two distinct and separate claims: the first the FATA claim proper, the second a general retaliation claim available to state employees, and a waiver of sovereign immunity.” Response at 25-26. They assert that the Defendants’ argument that the FATA should be interpreted parallel to the Federal False Claims Act, 31 U.S.C. §§ 3729-3733 (“FFCA”), misconstrues the law’s plain language and the legislature’s intent. Response at 27-29 (comparing 31 U.S.C. § 3730(h)(1) with N.M.S.A.1978, § 44-9-11(B)).
The Plaintiffs additionally argue that “existing precedent compels this Court to recognize that a discriminatory and retaliatory conspiracy operating in a state building fits under N.M.S.A.1978, § 41-4-6’s tort claims waiver for operation of a building, and thus Plaintiffs’ claims sounding in tort should not be dismissed.” Response at 29. The Plaintiffs contend that they allege a conspiracy which “[u]nder existing precedent ... represents an unsafe, known condition in a public building for a specifically-identified group of the general public — any complaining ... employees — in violation of regulation or rules made or adopted by the State.” Response at 30. In relation to the requirement that “[t]he involved dangerous condition must present a danger to the public in general or a specific subset of the public,” the Plaintiffs contend that there was an “ongoing danger to Mormon/Anglo supervisors [that] was never addressed in any way.” Response at 31-32 (citing C.H. v. Los Lunas Sch. Bd. of Educ., 852 F.Supp.2d 1344, 1363-64 (D.N.M.2012) (Browning, J.)). The Plaintiffs finally respond to the Defendants’ contention that “the failure to designate the [administrative exhaustion allegations] as a ‘Notice of Appeal’ renders the NMHRA claim ineffective,” by asserting that the failure is de minimus, as it is reasonable to infer from the allegations that the Plaintiffs exhausted all their administrative remedies. Response at 34-35 (citing Complaint ¶¶ 26, 35, 39, at 16-17, 21-22, 24-25).
On, January 4, 2013, the Defendants filed the Defendants’ Reply in Support of Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity. See Doc. 37 (“Reply”). The Defendants assert that the Plaintiffs’ Response “is as illuminating for what it does not address as for what it does address.” Reply at 1. According to the Defendants, the
Plaintiffs completely fail to address Defendants’ arguments that (1) Plaintiffs’ § 1985(3) claims against the individual defendants are barred by qualified immunity; (2) Title VII claims cannot be brought against individuals; (3) disability discrimination cannot be the basis for an equal protection claim; (4) they did not properly plead a “continuing violation” under Title VII or the New Mexico Human Rights Act; (5) they did not state a prima facie claim for common law conspiracy; (6) sovereign immunity bars their tortious interference with contract and common law conspiracy claims; (7) the timing of their complaints to agencies does not support the Fraud Against Taxpayers Act retaliation claim; and (8) there is judgment contained in the Second Amended Complaint. Accordingly, Counts V, VI and VII should be dismissed in their entirety with prejudice; all claims against the individual defendants contained in Count X should be dismissed with prejudice and the individual defendants should be granted qualified immunity on the § 1985 claims against them in their individual capacities.
Reply at 1-2. The Defendants also assert that the Court should dismiss the Plaintiffs’ other claims with prejudice, reiterating their argument that the Complaint “lacks the requisite factual specificity and fails to contain sufficient allegations to .... show that their claims are plausible.” Complaint at 2.
The Defendants argue that the CCSD is not a proper party to any of the claims, because a school district is á geographic area; “the correct entity defendant is the' Board of Education for the Central Consolidated Schools.” Reply at 3. They therefore assert: “CCSD should be dismissed from this case, as there is no authority for bringing suit against it.” Reply at 3.
The Defendants argue that the Plaintiffs’ contention in their Response that they adequately pled municipal liability under § 1983 under either the direct proof or burden-shifting method “fails to cure the problem,” because the Plaintiffs have not met their burden to allege facts sufficient to state all the elements of