Benavidez v. Sandia National Laboratories (212 F. Supp. 3d 1039, 2016)

AMENDED MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendants’ Motion to Dismiss, filed October 21, 2015 (Doc. 7)(the “Motion”); and (ii) the Plaintiffs Response to Defendants’ Motion to Dismiss (Doc. 7), Request for Remand, and Memorandum in Support, filed November 20, 2015 (Doc. 16)(“Response”). The Court held a hearing on January 20, 2016. The primary issues are: (i) whether § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (“LMRA”), preempts Plaintiff Linda Bena-videz’ claims for gender and age discrimination under the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to - 14 (“NMHRA”), and for intentional infliction of emotional distress; (ii) if federal law does not preempt Benavidez’ gender and age discrimination claims under the NMHRA, whether the Court should nonetheless dismiss her claims for failure to state a claim; (iii) whether Benavidez failed to exhaust her administrative remedies with respect to her claims against Defendants Timothy Gardner and Varick Tucker, and with respect to some of the conduct alleged in support of her discrimination claims that occurred after she filed her charge of discrimination; (iv) whether Be-navidez’ intentional-infliction-of-emotional-distress claim fails as a matter of law; and (v) whether the Court should remand the case to state court because it .lacks subject-matter jurisdiction. The Court will grant the Motion and deny the request in the Response that the Court remand this action to state court. First, the Court concludes that the LMRA’s § 301 does not preempt Benavidez’ age and sex discrimination claims brought pursuant to the NMHRA. Second, the Court concludes that the LMRA’s § 301 partially preempts Benavidez’ intentional-inflietion-of-emo-tional-distress claim. The Court concludes that, to the extent that Benavidez bases her intentional infliction of emotional distress claim on Gardener’s “belittl[ing] and berat[ing]” her “for not being able to complete the course work she took in preparation for attempting to obtain a Trades Degree,” § 301 does not foreclose Benavi-dez from asserting an intentional infliction of emotional distress claim. The Court concludes, however, that § 301 preempts Be-navidez’ intentional-inflietion-of-emotional-distress claim to the extent that it is based on: (i) the Defendants’ downgrading of Be-navidez and putting her in a position for which she was not qualified, either by experience or physical abilities, rather than allowing her to move into another Grade 8 position; and (ii) the Defendants doing nothing to help her find another, more appropriate position after she complained to management multiple times and asked for help in her new position, and their ultimate termination of Benavidez for being unable to perform the new position. The Court nonetheless dismisses the portion of Benavidez’ intentional-inflietion-of-emotional-distress claim that § 301 preempts, because Benavidez has not demonstrated that she exhausted her remedies under the CBA. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220-21, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)(concluding that complaint should have been dismissed for failure to make use of the grievance procedure established in a collective-bargaining agreement or dismissed as preempted by § 301). Third, the Court concludes that Benavidez states a claim for sex and age discrimination under the NMHRA. Fourth, the Court will dismiss the claims against the individual defendants—Gardner and Tucker—because Be-navidez has not exhausted her administrative remedies against them. The Court concludes, however, that Benavidez has exhausted her administrative remedies for the conduct alleged in support of her NMHRA discrimination claims that took place after she filed her Charge of Discrimination on September 9, 2014. Fifth, with respect to the portion of Benavidez’ intentional-infliction-of-emotional-distress claim that § 301 does not preempt, the Court concludes that Benavidez does not state a claim upon which relief can be granted. In sum, the Court is left with two state-law discrimination claims brought under the NMHRA. While the Court concludes that it retains federal enclave jurisdiction over this action, and therefore denies Benavides’ request in the Response that the Court remand this action to state court, it must dismiss Benavidez’ three claims—including those brought under the NMHRA—pursuant to the federal enclave doctrine.

FACTUAL BACKGROUND

The Court takes its facts from the First Amended Complaint for Damages for Violation of the New Mexico Human Rights Act, and for Intentional Infliction of Emotional Distress, filed October 15, 2015 (Doc. l-2)(“Complaint”), as it must at the motion-to-dismiss stage, see Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

1. The Parties.

Benavidez is a United States citizen and a resident of Albuquerque, New Mexico. See Complaint ¶ 8, at 6. At all times relevant to the Complaint, Defendant Sandia National Laboratories employed Benavi-dez. See Complaint ¶ 8, at 6. Sandia Labs is a New Mexico corporation that at all times relevant to the Complaint employed more than fifteen employees. See Complaint ¶¶ 9-10, at 6. Tucker was Benavidez’ Human Resource manager and Gardener was Benavidez’ manager. See Complaint ¶¶ 11-12, at 6.

2. The Events Giving Rise to the Litigation.

Sandia Labs hired Benavidez as a Neutron Generator Production Specialist on June 1, 2001, and assigned her to work at Sandia Labs in Albuquerque. See Complaint ¶ 14, at 7. At all relevant times relevant to the Complaint, Benavidez was a woman and over the age of forty. See Complaint ¶ 40, at 10-11; id. ¶ 51, at 12. While working as a Neutron Generator Production Specialist, Benavidez was trained and successfully learned all of her job functions, and she was cross-trained on many other jobs within her department. See Complaint ¶ 15, at 7. While working at Sandia Labs, Benavidez “developed some serious medical conditions which resulted in Plaintiffs life activities being affected.” Complaint ¶ 16, at 7. At some time in 2011, the requirements of Benavidez’ position changed to include the need for a Trades Degree, although the essential functions of her position never changed. See Complaint ¶ 17, at 7; id. ¶ 52, at 12.

“Defendant Timothy Gardener implemented the requirement for a Trades Degree in attempt to get rid of all Grade 8⅛ in the Neutron Generator location.” Complaint ¶ 18, at 7. To obtain a Trades Degree, Benavidez would have had to return to school for college-level courses such as physics, trigonometry, and chemistry, which would have required her to take years of preparatory classes in order to even qualify to take the required classes. See Complaint ¶ 19, at 7; id. ¶ 42, at § 11; id. ¶ 53, at 12. “Plaintiff had not attended school since graduating from high school in the 1970s.” Complaint ¶ 19, at 7. These classes had no bearing on the work that the Neutron Generator Productions Specialist position required. See Complaint ¶ 20, at 7. Benavidez attempted to take a class, but could not keep up with the course work. See Complaint ¶ 20, at 7. Benavidez “was offered tutoring for her class work but that never occurred.” Complaint ¶ 20, at 7. Gardener “belittled and berated Plaintiff for not being able to complete the course work she took in preparation for attempting to obtain a Trades Degree.” Complaint ¶ 64, at 13. Throughout her employment at Sandia Labs, Bena-videz consistently received positive ratings on her performance reviews. See Complaint ¶ 21, at 7-8; id. ¶ 41, at 11; id. ¶ 52, at 12. She also received comprehensive training for her position’s functions until Sandia Labs required her to obtain a Trades Degree. See Complaint ¶ 21, at 8; id. ¶ 41, at 11; M. ¶ 52, at 12.

Benavidez was told that, if she was unable to obtain the Trades Degree, she would be “bumped” into another similar position at Sandia Labs with the same grade level and pay. Complaint ¶ 22, at 8. See id. ¶ 42, at 11; id. ¶ 53, at 12. On June 23, 2014, Gardner informed her “that she would no longer be working as a Neutron Generator Production Specialist due to a workforce reduction.” Complaint ¶ 23, at 8. “However, there was no reduction in the work force in Plaintiffs department, as younger individuals with Trades Degrees, whom Plaintiff had trained, are currently working in her old position.” Complaint ¶ 23, at 8. Gardener took away Benavidez’ “work access for the Neutron Generator Production department and placed her at a desk with nothing to do for two weeks.” Complaint ¶ 23, at 8. “Instead of being ‘bumped’ into a similar position at SNL, Plaintiff was placed in a position described as a Maintenance Support Technician,” which “included ‘duties requiring working strenuous positions with exertions of physical effort up to 60 pounds.’ ” Complaint ¶ 24, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. In her new position, Benavidez was required to, among other things, obtain a Commercial Driver’s License, obtain a Hazmat Tanker endorsement for fueling, pass the Occupational Safety and Health Administration tire and rim safety training, and obtain a forklift certificate. See Complaint ¶ 25, at 8. “She and her coworkers that were put in this position, essentially as tractor/trailer drivers, were the only females working this job.” Complaint 25, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “The only other employees in this position were men, with the exception of one other woman over the age of 40 who was also being ‘absorbed’ into this new position, and who was ultimately terminated.” Complaint ¶ 54, at 12.

Gardner and Tucker “knew or should have known that Plaintiff was not qualified physically to perform her new job, and was physically unable to perform the job duties.” Complaint ¶ 26, at 8. The Defendants placed Benavides in a position where she was guaranteed not to be able to succeed because of her age and sex. Complaint ¶ 44, at 11; id. ¶ 56, at 12. In her new position, Benavidez was demoted from a Pay Grade 8 to a Pay Grade 7. See Complaint ¶27, at 8-9. “Defendant SNL absorbed the male employees into grade 8 positions which meant that they were not downgraded.” Complaint ¶ 55, at 12. “After her Union contested this issue, Defendant SNL gave back Plaintiffs Grade 8 pay but froze her scale so that she could no longer receive any raises.” Complaint ¶ 27, at 8-9. “Throughout July 11, 2014, and continuing to April 16, 2015, Plaintiff attempted to perform her new job.” Complaint ¶ 28, at 9. Benavidez, however, “had absolutely no qualifications to meet the new job functions.” Complaint ¶28, at 9. Classes and training were provided, and Benavidez accomplished all requirements with the exception of getting her CDL. See Complaint 1128, at 9. “When Plaintiff was placed on indefinite restrictions is when she had 120 days to find a new job.” Complaint ¶ 29, at 9. Because of the new job’s strenuous nature, Sandia Labs sent Benavidez to Bear Canyon Therapy to be evaluated to determine whether she could physically meet the new job requirements. See Complaint ¶ 30, at 9. “On September 9, 2014, Ms. Benavides filed a formal charge of discrimination on the basis of sex, age, and equal pay in violation of the New Mexico Human Rights Act, NMSA § 28-1-7 (1978), et seq.” Complaint ¶ 3, at 5-6. “On September 30, 2014, Dr. Saurman with Defendant SNL advised Plaintiff that she was incapable of performing the job duties due to her permanent medical restrictions.” Complaint ¶ 31, at 9. See kL ¶ 45, at 11; kb ¶ 57, at 13. Accordingly, Benavidez “was placed on a realignment process and was not given any reasonable accommodation.” Complaint ¶ 32, at 9. See id. ¶ 57, at 13.

The first sixty (60) day time period is to conduct a division/labs-wide search for suitable work for which Plaintiff is qualified and that can accommodate her indefinite medical restrictions. If another positon [sic] cannot be obtained within the first sixty (60) day period, the case will be reviewed by the Disability Accommodation Committee for recommendation on whether or not to proceed through the second 60 day period [ ] of [the] Essential Functions Realignment Process. Suitable work which Plaintiff was qualified for and could accommodate her indefinite medical restrictions was not found with the first sixty (60) day period. After the first sixty (60) days the Disability Accommodation Committee met to review Plaintiffs process and voted to continue through the second sixty (60) day period of the Essential Functions Realignment Process. During the second sixty (60) day period Plaintiff was required to make a good faith effort to find suitable work for which she was qualified for and that could accommodate her indefinite medical restrictions. If suitable work cannot be found during the second sixty (60) day time period her employment with Sandia would be terminated.

Complaint ¶ 32, at 9-10.

Benavidez made multiple complaints to Sandia Labs management and to Sandia Labs’ Human Resources, including complaints to Tucker, “but instead of being offered help, Plaintiff was humiliated and degraded.” Complaint ¶ 33, at 10. “Plaintiff was advised to bid/apply for other positions offered through Defendant SNL.” Complaint ¶ 34, at 10. See id. ¶ 45, at 11; id. ¶ 57, at 13. Benavidez “bid and applied for several positions for which she was capable of performing, but she was never called back or interviewed.” Complaint ¶ 34, at 10. See id. ¶ 57, at 13. Sandia Labs did not offer Benavidez any accommodations even though it provided accommodations to similarly situated employees. See Complaint ¶ 35, at 10. “The New Mexico Human Rights Bureau issued an Order of Non-Determination on April 8, 2015, and has closed Plaintiffs complaint administratively, with prejudice.” Complaint ¶ 4, at 6. After Benavides complained to management multiple times and asked for help in her new position, the Defendants did nothing to help her find another, more appropriate position and did not offer her any other position. See Complaint ¶ 58, at 13. On April 16, 2015, Sandia Labs terminated Benavidez’ employment for her being unable to perform the new position. See Complaint ¶ 36, at 10; id. ¶ 66, at 13-14. “Defendant SNL did nothing to prevent or rectify Defendant Timothy Gardener’s or Defendant Varick Tucker’s extreme and outrageous behavior, and therefore acquiesced to it.” Complaint ¶ 71, at 14.

PROCEDURAL BACKGROUND

On August 27, 2015, Benavidez filed suit in the Second Judicial District Court, County of Bernalillo, New Mexico. See Complaint at 1. About a month and a half later, on October 15, 2015, the Defendants removed the case to federal court, asserting federal-question jurisdiction. See Notice of Removal, filed October 15, 2015 (Doc. 1). Benavidez asserts three causes of action against all of the Defendants: (i) discrimination on the basis of age in violation of the NMHRA, see Complaint ¶¶ 38-48, at 10-12 (Count I); (ii) discrimination on the basis of sex in violation of the NMHRA, see Complaint ¶¶ 49-62, at 12-13 (Count II); and (iii) intentional infliction of emotional distress, see Complaint ¶¶ 63-73, at 13-14 (Count III). Benavidez asks the Court for judgment against the Defendants “for all actual, compensatory, nominal, and emotional damages she has suffered ... [,] punitive damages for Defendants’ willful, wanton, and reckless conduct ... [,] attorneys’ and other fees, costs, and pre-and post-judgment interest accrued; and for such other relief as the Court finds just and proper.” Complaint at 14-15.

1. The Motion.

The Defendants filed the Motion on October 21, 2015. In the Motion, the Defendants ask the Court to dismiss this lawsuit for failure to state a claim upon which relief can be granted. See Motion at 1. The Defendants first argue that the LMRA’s § 301 preempts all of Benavidez’ claims. See Motion at 1. The Defendants assert that, although Benavidez frames her claims in terms of state law theories, the Court should look beyond the allegations in the Complaint to determine whether the wrongs of which she complains arose from a breach of obligations under the collective bargaining agreement. See Motion at 1-2. Here, the Defendants contend, the Complaint states claims arising under New Mexico law: age and sex discrimination in violation of the NMHRA and intentional infliction of emotional distress. See Motion at 2. The Defendants maintain that Bena-videz “carefully (though not completely) omitted references to the collective bargaining agreement and associated negotiations between her union and employer that directly impacted all of the actions Plaintiff describes.” Motion at 2.

Moreover, the Defendants argue that all three of Benavidez’ claims relate to a common set of alleged actions by the Defendants. See Motion at 2. First, according to the Defendants, Benavidez alleges that, in 2011, the Defendants implemented a requirement for “college-level classes” or a “Trades Degree” on her position. Motion at 2. The Defendants argue that this requirement was negotiated between Sandia Labs and the labor organization representing Benavidez, the Metal Trades Council. See Motion at 2. They state that “[tjhis allegation is not based on any independent right or obligation created by state law—it is instead entirely reliant on the rights and obligations created by this labor agreement.” Motion at 2. Second, according to the Defendants, Benavidez alleges that the Defendants downgraded her from a Grade 8 position to a “Maintenance Support Technician” instead of “bumping” her into a similar position. Motion at 4. The Defendants argue, however, that the 2011 Collective Bargaining Agreement (“2011 CBA”) contains provisions for direct placement into a position, downgrading, and “bumping.” Motion at 4. The Defendants state:

By implicitly arguing that Defendants should have utilized one of these contractual provisions instead of another, Plaintiff grounds her claims in rights and obligations created by the collective bargaining agreement. Notably, Plaintiff acknowledges that at least one aspect of this alleged action—her resulting compensation after the downgrade—was resolved between her union and employer.

Motion at 4 (emphasis in Motion).

Third, the Defendants state that Be-navidez alleges that the Defendants determined that she could not physically perform the new position, but did not interview her for, or place her in, another position. See Motion at 4. The Defendants argue that Article 38, Section 7 of the 2014 Collective Bargaining Agreement (“2014 CBA”), however, governs priority placement for bargaining unit employees “[ujnable to perform [their] job because of physical disability developed while employed by the Laboratories.” Motion at 4. Accordingly, the Defendants contend that evaluating Be-navidez’ claims that Defendants did not interview or place her in a new position would require the Court to interpret the 2014 CBA to identify and apply the rights and obligations that the agreement creates. See Motion at 4. Finally, the Defendants state that, “in support of her claims for sex discrimination and intentional infliction of emotional distress, Plaintiff alleges that her employment was terminated because she was unable to perform her new position.” Motion at 4. The Defendants argue that Article 13 of the 2014 CBA. establishes the rights and benefits of bargaining unit employees separated because of their inability to perform any available job’s essential functions. See Motion at 4.

The Defendants next argue that, even if § 301 does not preempt Benavidez’ NMHRA discrimination claims, the Court must dismiss them for failure to state a claim. See Motion at 5. The Defendants state that Benavidez must “plead sufficient background facts to make plausible that the [Defendants] took an adverse employment action against [Benavidez], and that [Benavidez’ protected] status was a determinative factor in the decision to take that action.” Motion at 5-6 (citing Hunt v. Cent. Consol. Sch. Dist., 951 F.Supp.2d 1136, 1205 (D.N.M.2013)(Browning, J.)). The Defendants assert that Benavidez does not allege any background facts supporting her allegation that her age or sex motivated any of the Defendants to undertake the alleged actions. See Motion at 6. Further, the Defendants maintain that Benavidez does not allege that younger employees or male employees were treated more favorably, nor does she allege that any of the Defendants harbored any animus towards women or employees over the age of forty. See Motion at 6. The Defendants state that Benavidez “does not allege that her age or sex was referenced by Defendants in connection with any of the actions she alleges.” Motion at 6.

The Defendants then catalogue and purport to undermine each of Benavidez’ allegations regarding her discrimination claim. See Motion at 6. According to the Defendants, Benavidez alleges that Gardner’s intent to “get rid of all Grade 8s in the Neutron Generator location” motivated the requirement to take college-level classes. Motion at 6. The Defendants assert that, “as alleged, the requirement was non-discriminatory.” Motion at 6. The Defendants state that Benavidez’ second allegation supporting her discrimination claim is that she was placed in a “Maintenance Support Technician” position. Motion at 6. According to the Defendants, Benavidez alleges that the “Defendants placed Plaintiff in a position where she was guaranteed not to be able to succeed because of her age” and “because of her sex.” Motion at 6. Regarding this allegation, the Defendants assert:

Although this ambiguous allegation is subject to two interpretations, neither is favorable to Plaintiff’s claims. The most natural reading—that she could not succeed in her new position because she was a woman or because she was over the age of forty—is clearly inconsistent with the NMHRA’s prohibition on discrimination. Plaintiff is effectively claiming that Defendants failed to discriminate, by placing her in a job regardless of the fact that she was a woman over the age of forty. The alternative possible reading of these assertions—that Defendants, motivated by Plaintiffs age or sex, placed her in a position she was guaranteed not to be able to succeed—is simply a conclusion, unsupported by any background facts, and therefore is “not entitled to the assumption of truth.”

Motion at 6-7 (citations omitted).

Regarding Benavidez’ allegation that she was not interviewed for any other positions after it was determined that she was not physically capable of performing her new position, the Defendants contend that Benavidez does not allege that the Defendants failed to conduct any interviews because of Benavidez’ age or sex, or that younger or male employees were treated differently. See Motion at 7. The Defendants further state that Benavidez “alleges that she was terminated, but she does not allege that this was because of her age or sex, and in fact admits that she was terminated ‘for being unable to perform the new position into which Defendants had placed her.’ ” Motion at 7 (quoting Complaint ¶ 66, at 13-14). Finally, the Defendants assert that Benavidez’ “broad assertions that ‘[tjhrough these actions, Defendants discriminated against Plaintiff because of her age [or sex] in violation of the New Mexico Human Rights Act ...” are again “mere conclusions ... not entitled to the assumption of truth.” Motion at 7. Ih conclusion, the Defendants contend that “[t]he deferential requirements of Rule 12(b)(6) do not allow the court to assume that a plaintiff can prove facts that she has not alleged or that the defendant has violated the laws in ways that have not been alleged.” Motion at 7 (citing Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)).

The Defendants argue that Benavidez has failed to exhaust her administrative remedies with respect to her claims against Gardner and Tucker, and with respect to some of the conduct alleged in support of her discrimination claims that occurred after her charge of discrimination was filed. See Motion at 8-9. Finally, the Defendants assert that Benavidez’ intentional-infliction-of-emotional-distress claim fails as a matter of law. See Motion at 9-10. The Defendants contend that Benavi-dez must establish “extreme and outrageous” conduct to succeed on her intentional infliction of emotional distress claim. Motion at 9-10. The Defendants argue that Benavidez’ allegations that she was “belittled and berated,” “downgraded,” and “terminated” do not amount to extreme and outrageous conduct. Motion at 10.

2. The Response.

Benavidez responded on November 20, 2015. See Response at 1. Benavidez first stresses that she does not allege that the Defendants breached the collective bargaining agreement between Sandia Labs and the Metal Workers Union to which she belonged, nor does she allege that the Metal Workers Union failed to fulfill its duty of representation. See Response at 1-2. Benavidez then re-alleges all of the facts that she sets forth in her Complaint. See Response at 2-4. Benavidez next disputes the Defendants’ assertion that the LMRA’s § 301 preempts her claims. See Response at 5. Benavidez contends that “not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Response at 5 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. at 209, 105 S.Ct. 1904). She argues that preemption is present only if a state claim is “inextricably intertwined with the consideration of the terms of the labor contract,” Response at 5 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. at 213, 105 S.Ct. 1904), that the state law claims here are not inextricably intertwined with the CBA negotiated between Sandia Labs and the Metal Workers Union, and that the claims can be resolved without interpreting the agreement itself, see Response at 6. Moreover, Benavidez maintains that her NMHRA discrimination claims and her intentional infliction of emotional distress claim are not dependent on any interpretation of the CBA. See Response at 6.

Benavidez argues that her claims under the NMHRA are neither founded on rights that the CBA creates, nor dependent on an interpretation of the CBA. See Response at 6. She maintains that—unrelated to the CBA’s terms—she suffered discrimination on the basis of her age, gender, and medical condition, contrary to state law under the NMHRA. See Response at 6. Benavi-dez contends that her claims can be resolved without reference to the CBA and that, if she can “meet all the elements to sustain her state claims, she can prevail under the NMHRA irrespective of the terms of the CBA.” Response at 6 (citing Milton v. Scrivner, 53 F.3d 1118, 1121 (10th Cir.1995)). Benavidez quotes Milton v. Scrivner for the proposition that state law claims are not preempted even if “the state law analysis might well involve attention to the same factual considerations ‘that might be involved in determining the federal issues.’ ” Response at 6-7 (quoting Milton v. Scrivner, 53 F.3d at 1121). According to Benavidez, under Milton v. Scrivner, “claims made pursuant to state law anti-discrimination statutes are not dependent upon collective bargaining agreements, and are not preempted under § 301.” Response at 7. She asserts that § 301 does not require preemption where, as is the case here, a plaintiffs claims present purely factual questions that do not require reference to the CBA for resolution, the meaning of the CBA’s terms is not in dispute, and the state law remedy is independent of the CBA. See Response at 7.

Benavidez maintains that, in the retaliation claim context, “[s]o long as the state law cause of action is concerned not with the employer’s contractual right to discharge the employee, but rather with its motives in exercising that right, the CBA is not relevant and preemption does not apply.” Response at 7. She further contends that the Defendants’ decision to raise the CBA as a defense to her NMHRA claim does not change the analysis. See Response at 8. According to Bena-videz, “[e]ven if the Court is required to construe the CBA in considering the defense, ‘the presence of a federal question, even a § 301 question, in a defensive argument’ does not require preemption.” Response at 8. Finally, she asserts that § 301 does not preempt her intentional infliction of emotional distress claim, because New Mexico law creates an independent method of measure without recourse to the CBA. See Response at 8.

Benavidez next argues that her Complaint contains sufficient factual allegations which plausibly support her discrimination claims. See Response at 9. She states that her Complaint alleges more than sufficient facts to plausibly allege that the Defendants intentionally discriminated against her and took adverse employment actions against her, because of her age, gender, and medical conditions, which are protected statuses under the NMHRA. See Response at 9. Benavidez then spends several pages re-stating the facts that she alleges in her Complaint, and arguing that they sufficiently support a plausible inference that the Defendants discriminated against her on the basis of age, gender, and medical condition, in violation of the NMHRA. See Response at 9-12. Benavidez concedes that she did not exhaust her administrative remedies with respect to claims against Garner and Tucker, and therefore, withdraws her claims as to them. See Response at 12-13. She next asserts that her intentional infliction of emotional distress claim has legal and factual support. See Response at 13. She argues:

Defendants attempt to downplay their outrageous actions toward Plaintiff by focusing only on her allegations that she was “belittled and berated,” “downgraded,” and “terminated.” However, taking all her allegations into account, it is apparent that Defendants’ actions began at the point they required her to take college-level physics and chemistry classes, with no help or tutoring, at which they had to know she could not succeed given that she had only a high school degree. From there, they proceeded to tell her she was being RIF’d, when all could see she was simply replaced with younger employees. They then proceeded to outrageous actions by putting her in a physically difficult position for which she had no background or qualifications, a recipe for failure, at which she did fail. They capped this with giving her 120 days to find another position at SNL, but gave her no help and no interviews. All these actions toward a longtime employee who, up to 2011, had given the company good work product amounted to behavior that was “so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Response at 14-15.

Last, Benavidez asks the Court to remand the case to state court. See Response at 15-16. She states that the Court is required to remand “if at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” Response at 15 (quoting 28 U.S.C. § 1447(c)). According to Benavidez, because federal courts are courts of limited jurisdiction, the law imposes a presumption against federal jurisdiction. See Response at 15-16 (citing Frederick & Warinner v. Lundgren, 962 F.Supp. 1580, 1582 (D.Kan.1997)(O’Connor, J.). She argues that, because there is no federal-question jurisdiction, the Court should remand the case. See Response at 16.

3. The Reply.

The Defendants replied on November 25, 2015. See Defendants’ Reply in Support of their Motion to Dismiss, filed November 25, 2015 (Doc. 17)(“Reply”). In their Reply, the Defendants make four primary arguments: (i) although Benavidez asserts that she does not allege any violation of a CBA, she fails to address the supporting evidence set forth in the Motion . that demonstrates that Benavidez’ claims are inextricably intertwined with the interpretation of the CBA between Sandia Labs and the Metal Workers Union; (ii) Benavidez does not demonstrate how the facts alleged support plausible claims for age or gender discrimination; (Hi) on her intentional infliction of emotional distress claim, Benavidez does not establish that the conduct alleged is extreme and outrageous; and (iv) the Court should not remand Benavidez’ lawsuit to state court because she does not establish that the Court lacks subject-matter jurisdiction. See Reply at 1.

On point one, the Defendants attempt to distinguish the facts of this case from the United States Court of Appeals for the Tenth Circuit’s decision in Milton v. Scrivner, Inc., and the Supreme Court of the United States’ decision in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). See Reply at 2-3. The Defendants contend that those cases, in particular Lingle v. Norge Division of Magic Chef, Inc., do not foreclose the possibility of preemption altogether where state law anti-discrimination statutes exist. See Reply at 2-3. According to the Defendants, “an application of state law is pre-empted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement.” Reply at 3. The Defendants maintain that this case presents “the atypical situation where a state law discrimination claim, as applied to the facts alleged in the artfully pleaded complaint and the evidence supporting Defendants’ Notice of Removal, cannot be resolved without interpreting the underling collective bargaining agreement.” Reply at 3. The Defendants concede that the NMHRA creates rights independent of the CBA, but assert that they are not arguing, like the employer in Lingle v. Norge Division of Magic Chef, Inc., that Benavidez’ claims are preempted because an arbitration under the CBA would address the same facts and conduct. See Reply at 3. Rather, the Defendants contend that “a close reading of Plaintiffs Amended Complaint, with the appropriate context, demonstrates that the fundamental concerns at issue in Plaintiffs claims are not Defendants’ actions or motivations, but the application of the CBA.” Reply at 3-4. After examining the allegations set forth in the Complaint, the Defendants conclude: “Defendants have presented excerpts from the CBAs applicable to Plaintiffs employment to demonstrate that the rights and obligations underlying Plaintiffs allegations are founded in those CBAs, and therefore Plaintiffs claims cannot independently be resolved by reference to state law.” Reply at 4-5.

The Defendants next argue that § 301 similarly preempts Benavidez’ intentional-infliction-of-emotional-distress claim. See Reply at 5. They contend:

Plaintiff acknowledges that New Mexico state law “requires proof of extreme and outrageous conduct under the circumstances” but nevertheless claims that there is an “independent method of measure without recourse to the CBA.” Plaintiffs Response at page 8 (emphasis added). This cannot be true where, as here, the circumstances at issue involve employment actions governed by a CBA. See also Mowry v. United Parcel Service, 415 F.3d 1149, 1157 (10th Cir. 2005)(“Any argument that § 301 does not preempt this [intentional infliction of emotional distress] claim is foreclosed by circuit precedent.”).

Reply at 5. The Defendants then re-assert their arguments from the Motion that, even if § 301 does not preempt Benavidez’ discrimination claims, she does not allege sufficient facts to support her claims. See Reply at 5-6. Regarding Benavidez’ contention that she sufficiently alleges facts to support an intentional infliction of emotional distress claim, the Defendants state that, in her Response, Benavidez goes beyond the specific allegations asserted in support of Count III. See Reply at 6. According to the Defendants, “[e]ven assuming Plaintiff has adequately incorporated the additional allegations she cites, she still has not described any actions that meet the ‘very highest’ threshold of outrageous conduct necessary to state a claim for IIED.” Reply at 6 (citing Padwa v. Hadley, 1999-NMCA-067, ¶ 11, 127 N.M. 416, 981 P.2d 1234, 1238). They argue that none of these alleged actions “are unusual in the employment context, much less ‘extreme and outrageous.’ ” Reply at 6-7.

Finally, the Defendants argue that the Court retains subject-matter jurisdiction over this lawsuit. See Reply at 7. The Defendants state that Benavidez’ argument that her Complaint does not state any federal claims on its face fails to account for the complete pre-emption doctrine, which, according to the Defendants, acts as an exception to the well-pleaded-complaint rule. See Reply at 7. The Defendants contend that the Court retains jurisdiction, because the LMRA’s § 301 completely preempts Benavidez’ claims. See Reply at 7. The Defendants further assert that the Court retains jurisdiction over this lawsuit regardless how it rules on preemption. See Reply at 7. The Defendants explain:

As demonstrated in Defendants’ Notice of Removal [Doc. 1], the events in this case occurred within a federal enclave. In footnote 1 of Plaintiffs Response, she questions why Defendants did not assert “federal enclave jurisdiction in their Motion to Dismiss as an alternative basis for federal jurisdiction.” The answer is that the purpose of the Motion to Dismiss is to seek dismissal of Plaintiffs claims, not to establish federal jurisdiction. That was accomplished in the Notice of Removal. Plaintiff also suggests that removal was premature. This is clearly wrong. See 28 U.S.C. § 1446(b)(1) & (3) (requiring a notice of removal within 30 days from service or the point at which it is apparent the case is removable). Because Plaintiffs Response does not establish that this court lacks subject matter jurisdiction, the case cannot be remanded. See 28 U.S.C. § 1447(c).

Reply at 7-8.

4. The January 20, 2016, Hearing.

The Court held a hearing on January 20, 2016. See Transcript of Hearing (taken January 20, 2015)(“Tr.”). At the hearing, the parties largely stuck to their briefing. After the Defendants briefly set forth their argument that federal law preempts Bena-videz’ claims, the Court asked the Defendants whether they agree that all of Bena-videz’ claims are state claims and that there are no federal claims. See Tr. at 2:12-3:25 (Court, Poore). The Defendants responded that there are only state law claims in the Complaint. See Tr. at 4:1-2 (Poore). They further stated, however, that Benavidez had sent them a proposed second amended complaint, in which Benavi-dez asserts claims on behalf of herself and three additional former Sandia employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act, 29 U.S.C. §§ .621 to 634 (“ADEA”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12201 to 12213 (“ADA”). See Tr. at 4:3-15 (Court, Poore). The Court stated that, under the preemption doctrine, one of the bases for federal court jurisdiction is that, even though the face of the complaint does not raise any federal claims, if there is a preemption defense, that is enough for a defendant to remove a case to federal court. See Tr. at 4:19-24 (Court). The Defendants agreed and argued that, under the artful pleading doctrine, a plaintiff cannot fail to include factual allegations to avoid federal jurisdiction. See Tr. at 4:25-5:3 (Poore). They contended that, in this case, Benavidez failed to plead allegations to avoid federal jurisdiction by omitting the references to the CBAs. See Tr. at 5:3-5 (Poore). The Defendants added that, with respect to Benavidez’ request for remand, “there is an alternative basis for federal jurisdiction, which is that the actions took place on a federal enclave, and so remand would be inappropriate regardless of how far the Court rules on the preemption claim.” Tr. at 5:11-16 (Poore). The Defendants also confirmed that they cited that basis of jurisdiction in their notice of removal. See Tr. at 5:17-19 (Court, Poore).

Benavidez then took up argument on the Motion. See Tr. 6:21-23 (Court, Higgins, Poore). Benavidez began by emphasizing that “preemption is only required if the state claim is inextricably intertwined with the consideration of the terms of the labor contract.” Tr. 6:23-7:1 (Higgins). According to Benavidez, her claims for sex and age discrimination are not inextricably intertwined with the contract’s terms and there is nothing in the CBA that would have anything to do with discrimination. See Tr. 7:5-13 (Higgins). She maintained, therefore, that § 301 preemption does not apply. See Tr. 7:9-20 (Higgins). Benavidez then largely re-stated her arguments from her briefing. See Tr. 9:3-10:4 (Higgins). The Court expressed concern that the conduct alleged here does not appear to meet the standard of being outrageous. See Tr. 10:5-20 (Court). Benavidez responded that it was premature to dismiss the claim and that she would like an opportunity to do some discovery. See Tr. 10:5-11:3 (Higgins). Benavidez also agreed that the Court can likely decide whether there is § 301 preemption in this case. See Tr. 12:11-13:5 (Court, Higgins).

The Court then asked Benavidez where she is going with the case by adding additional people and bringing federal claims. See Tr. 13:6-8 (Court). Benavidez stated that attorney Rachel Berenson was present and could better address that question. See Tr. 13:9-11 (Higgins). Ms. Berenson then took up argument before the Court. See Tr. 13:12-17 (Berenson, Court, Higgins). She agreed that the Defendants will likely prevail on the issue of federal enclave jurisdiction. See Tr. 13:17-15:17 (Ber-enson, Court). Ms. Berenson further stated that they have received additional right to sue letters from the Equal Employment Opportunity Commission regarding the three other plaintiffs and that they have been trying to draft a complaint to include federal claims for discrimination both for the three additional plaintiffs and for the additional charge that pertains to Benavi-dez. See Tr. 14:3-12 (Berenson). Ms. Ber-enson explained that they could go about it in two separate ways: (i) file a separate lawsuit for the additional plaintiffs; or (ii) file a motion for leave to amend Benavidez’ Complaint to include the federal claims and incorporate the additional plaintiffs. See Tr. 14:7-19 (Berenson). The Court asked whether, given that the Defendants have not filed an answer, Benavidez has the ability to file an amended complaint as of right. See Tr. 15:18-22 (Court). Ms. Ber-enson responded that she believed that Benavidez would need permission from the Court, because the time frame had already lapsed even though the Defendants had not yet filed an answer. See Tr. 15:23-16:3 (Berenson).

The Court then asked the Defendants whether, given that the plaintiffs have indicated that the Defendants likely will prevail on the remand issue, they might allow the plaintiffs to bring their suit here in one case. See Tr. 16:9-15 (Court). The Defendants responded that they would prefer that all of the plaintiffs and claims be in one case, but that all of the parties would benefit from the Court ruling on the § 301 preemption question. See Tr. 16:16-17:2 (Poore). The Defendants also clarified that they are arguing that, as with the intentional infliction of emotional distress claim, Benavidez’ sex and age discrimination claims do not state a claim upon which relief can be granted. See Tr. 18:23-19:19 (Poore). The Defendants made the final point that, although Benavidez did not quite concede federal enclave jurisdiction, she suggested that the intentional infliction of emotional distress claim might survive anyway. See Tr.. 20:7-11 (Poore). According to the Defendants, however, New Mexico first recognized the tort of intentional infliction of emotional distress in 1972, well after the New Mexico legislature passed the NMHRA in 1969. See Tr. 20:7-11 (Poore). They therefore contended that they believe that “all of the state law claims will ultimately be disposed of under federal enclave jurisdiction.” Tr. 20:7-19 (Poore).

Benavidez responded that they were relying on a 1937 case, which they contended allowed for damages and recognized a claim for emotional distress. See Tr. 21:2-10 (Higgins). Benavidez also clarified that the question of sex and age discrimination does not rely on the contract. See Tr. 20:25-22:4 (Higgins). The Court responded:

Does that require any construction of the contract? I mean [what I] understand the plaintiffs are saying. It’s kind of irrelevant whether the contract required bumping or didn’t require bumping, they don’t care, they’re just saying is the manager came in and said this is what occurred on the basis of what the manager said, that’s where the sexual or age discrimination occurred. Does it really require the Court to construe in any way the CBA.

Tr. 22:5-14 (Court). The Defendants responded that they read the Complaint as arguing that Benavidez should have bumped or displaced another employee. See Tr. 22:15-17 (Poore). They further explained: “I don’t believe an argument that her. supervisor told her one thing and something different ended up happening has anything to do with [age] or sex discrimination, and so if you actually look at that, it’s at best, a contract claim. At worst it’s not a claim at all.” Tr. 22:17-22 (Poore).

The Court then stated:

Let me take a look at this. I still have a recollection I thought it was maybe that [T]ru[] [Solutions], that [Westinghouse] case out of the [WIPP] site[,] maybe it wasn’t. I thought I had a [§ ] 301 preemption and I thought I’d construed it narrowly but let me give that some thought. It sounds like I’m going to [have] federal jurisdiction one way or another here so I’m inclined to dismiss the intentional infliction of distress[;] I think I’ve had enough of these in the employment context. I’ll have to look at the allegation to see whether they satisfy Iqbal an[d] Twombly. That’s really [what I] understand Sandia to be raising [about] the state law claims on the substance, but the only one I really have a feel for is maybe the intentional infliction of emotional distress. So I’ll have to give that some consideration. It sounds like the plaintiffs are not contesting or at least indicating that this federal enclave which I have had no experience with, so I’ll have to take a look at it for the first time, it sounds like that’s sufficient to confer jurisdiction, so it doesn’t look like it’s a remand situation and the case will remain here in Federal Court. I understand that the intentional infliction might survive or be around before the federal enclave but I’m not sure that would save it even under state law.

I’ll hear the plaintiff[’]s motion to stay. I’ll give you my thoughts. I guess I was inclined to think that the defendant was right, at some point I’ve got to decide this 301 issue. It may not be exactly what you[r] next complaint is. But it sound[s] like I’m going to have to get into it at some point, and I know you may be amending your complaint and things like that, but ... those [sort] of things I’ve got to decide[;] it’s just delaying things for me not to go ahead and decide it. So I was inclined to deny it. [I will g]o ahead and have Ms. Wild send out an [initial scheduling conference] and try to have the opinion out to you by the time I see you at the initial scheduling conference, so we can keep the case moving for all sides and hopefully I’ll have [that] opinion out to you. It will give you some guidance on whether we’re going to have these state claims in or out and maybe by that point the plaintiffs will know what they’re going to do with their complaint and be ready to go on that.

Tr. 22:23-24:20 (Court).

Ms. Berenson then pointed out that the Defendants could also raise this § 301 preemption argument as to the additional claims that Benavidez and the three additional plaintiffs will bring. See Tr. 25:4-10 (Berenson). She asserted that the Court would then have to revisit this preemption issue again with all of the additional plaintiffs. See Tr. 25:10-12 (Berenson). The Court responded, that even if it might need to decide these § 301 preemption issues as to each plaintiff, it might make sense to go ahead and deal with it as to Benavidez. See Tr. 25:13-21 (Court). The parties would then have its thoughts on preemption under § 301, and they could then move onto the three additional plaintiffs. See Tr. 25:21-13 (Court). Ms. Beren-son stated that she understood that rationale, but explained that they had not yet received right-to-sue letters from the Human Rights Division, which would require additional time before they could bring forth all of the other plaintiffs. See Tr. 25:24-26:5 (Berenson). The Defendants expressed concern about having to re-file the Motion. See Tr. 26:6-17 (Court, Poore). The Court concluded by stating:

Well, I think that it will probably be helpful to the Court and really to the parties for me to go ahead and get this 301 issue resolved. So I’m going to deny the motion to stay. Usually if the plaintiffs want to put theirs on [ice], I’m pretty sympathetic to that, let them kind of control the case, but I think in this situation where we’ve had a hearing, we’ve had all the briefing, go ahead and get this issue decided, and I think it will give guidance to us down the road. I think once I figure it out it will probably help us more expeditiously decide 301 issues for the other three plaintiffs.

Tr. 26:19-27:16 (Court).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to 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)(Brorby, J.). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled 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 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)(“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)(McKay, J.)).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

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, 1000 (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, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(Kelly, J.)(emphasis omitted). The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(McConnell, J.)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions. First, a defendant can argue an affirmative defense on a motion to dismiss where the defendant asserts an immunity defense—the courts handle these cases differently than other motions to dismiss. See Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M.2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)); Robbins v. Oklahoma, 519 F.3d 1242. Second, the defendant can raise the defense on a motion to dismiss where the facts establishing the affirmative defense are apparent on the face of the complaint. See Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense that the complaint’s uncontroverted facts is most likely to establish. See 5 Charles Alan Wright et al., Federal Practice & Procedure: Civil ¶ 1277, at 643 (3d ed. 2004). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir.1955)(Wallace, J.); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir.1945)(Phillips, J.); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M.2011)(Browning, J.).

The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute. The Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir.1954)(Major, J.)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, the plaintiff must plead facts establishing an exception to the affirmative defense). It appears that, from case law in several Courts of Appeals, the plaintiff may avoid this problem altogether—at least at the motion-to-dismiss stage—by refraining from pleading specific or identifiable dates. See Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir.2007)(Niemeyer, J.); Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.2006)(Ripple, J.). Although the Tenth Circuit has not squarely addressed this practice, the Court has permitted this practice. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1208-09, 1234-38 (D.N.M.2014)(Browning, J.).

LAW REGARDING LMRA PREEMPTION

In Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), the Supreme Court articulated the doctrine of complete preemption:

On occasion, the Court has concluded that the pre-emptive force of a statute is so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. [v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ]. Once an area of state law has been completely pre-empt-ed, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. See Franchise Tax Bd. [of State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ](“If a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law”).

482 U.S. at 393, 107 S.Ct. 2425. The Supreme Court has held that the LMRA’s § 301 has complete preemptive force. See Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. at 23, 103 S.Ct. 2841. “Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement, although it does not contain an explicit preemption provision.” Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163-64 (10th Cir.2004)(footnote omitted)(citation omitted)(internal quotation marks omitted).

1. General Preemption Principles Under the LMRA.

The LMRA’s § 301 provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). The Tenth Circuit has explained that § 301 “preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1302 (10th Cir.2000)(citations omitted)(internal quotation marks omitted). Accord Carroll v. City of Albuquerque, 749 F.Supp.2d 1216, 1223-24 (D.N.M.2010)(Browning, J.).

In Allis-Chalmers Corp. v. Lueck, the Supreme Court set forth the standard for determining when § 301 completely preempts a state law claim: “[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law.” 471 U.S. at 220, 105 S.Ct. 1904 (citation omitted). In Allis-Chalmers Corp. v. Lueck, the plaintiff brought a state tort claim against his employer for the bad-faith processing of an insurance claim. See 471 U.S. at