Hartwell v. Southwest Cheese Co. (276 F. Supp. 3d 1188, 2016)

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S SECOND MOTION ' TO DISMISS AND TO STRIKE

James A. Parker, SENIOR UNITED STATES DISTRICT JUDGE

In DEFENDANT’S SECOND MOTION TO DISMISS AND TO STRIKE (Doc, No. 19) (Motion), Southwest Cheese Company, LLC (SWC) asks the Court to dismiss several of Plaintiff Marilyn Hart-well’s claims and strike portions of Plaintiffs FIRST AMENDED CIVIL COMPLAINT FOR DISCRIMINATION IN EMPLOYMENT UNDER NMHRA; SEXUAL HARASSMENT UNDER TITLE VII; BREACH OF IMPLIED IN FACT CONTRACT; RETALIATORY DISCHARGE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT SUPERVISION; VIOLATION OF 42 U.S.C, § 1981 (Doc. No. 14) (FAC). The Court will grant the Motion in part, and will dismiss some of Plaintiffs claims. The Court will also grant SWC’s request to strike one paragraph of Plaintiffs FAC.

I. STANDARD OF REVIEW

SWC moves to dismiss under Rule 12(b)(6) and moves to strike under Rule 12(f). “The court’s function on a Rule 12(b)(6) motion is ... to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). In evaluating a Rule 12(b)(6) motion, the court must “accept as true all well-pleaded facts [in the complaint], as distinguished from conclusory allegations, and view the facts in the light most favorable to the nonmov-ing party.... ” Archuleta v. Wagner, 523 F.3d 1278, 1282-83 (10th Cir. 2008) (quotation and alteration omitted). Even though the court must accept as true all well-pleaded facts in the complaint, the court is under no obligation to accept bare conclu-sory allegations. Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nor . is the court required to accept legal conclusions without factual support. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To summarize, a complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

In deciding a Rule 12(b)(6) motion, a court typically may consider only the facts alleged in the complaint. Martin v. Central States Emblems, Inc., 150 Fed.Appx. 852, 857 (10th Cir. Oct. 11, 2005) (unpublished) (citing County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)). However, a court may consider the documents from administrative proceedings as undisputed documents referenced in the complaint without converting the motion to dismiss into a motion for summary judgment. Id. at 858 (citation omitted) (stating that courts may consider charge filed with Equal Employment Opportunity Commission in ruling on motion to dismiss).

Under Rule 12(f), a court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f), Generally speaking, .motions to strike should be denied unless the challenged- allegations “have no possible relation or logical connection to the subject matter of the controversy.” 5C The Late Charles Alan Wright, Arthur R. Miller,' Mary Kay Kane, Richard L, Marcus, Adam N. Steinman, Federal Practice & Procedure § 1382, at 433-36 (3d. ed. 2004). While motions to strike are generally disfavored, the decision to grant a motion to strike is within the discretion of the court. Burget v. Capital West Securities, Inc., No. CIV-09-1015-M, 2009 WL 4807619, *1 (W.D. Okla. Dec. 8, 2009) (citing Scherer v. United States Dep’t of Educ., 78 Fed.Appx. 687, 689 (10th Cir. 2003)).

II. FACTUAL ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

- Plaintiff is a 60 year old African-American woman. (FAC ¶2.) SWC operates a plant that processes cheese and dairy products in Clovis, New Mexico. (FAC ¶ 3.) Plaintiff was hired by SWC on May 24, 2006, and she worked for SWC until SWC terminated her employment on June 20, 2014. (FAC ¶ 9.)

On May 2, 2014 prior to her discharge, Plaintiff submitted a Charge of Discrimination, (Charge) with'the New Mexico Department of Workforce Solutions, Human Rights Bureau. (FAC Ex. 1.) In her Charge, Plaintiff stated the following:

STATEMENT OF HARM: I’ve been employed by the Respondent since 5/2006 and my current title is Lab Tech. In 1/2014 I applied for the position of Quality Assurance and the position was given to a much younger, White employee. In addition, I was suspended in 1/2014 but I do not believe the suspension was legitimate and I believe this was done due.to my Race (Black).

STATEMENT OF DISCRIMINATION: I believe I have been discriminated against due to my Race (Black) and sex (Female) and this is in violation of .Title VII of the Civil Rights Act of 1964, as amended. I have also been discriminated against due to my age (57) and this is in violation of the Age Discrimination in Employment act [sic].

Id.

On July 4, 2014, Plaintiff received a letter from Leah Jackson, SWC Human Resources employee, informing Plaintiff that she was terminated effective June 20, 2014 for job abandonment. (FAC ¶ 36, Ex. 4.) The specific allegations about Plaintiffs discharge are described below in Part II. D.

In her first claim, Plaintiff contends she was subjected to unlawful sexual, racial, and age harassment in violation of the New Mexico Human Rights ■ Act (NMHRA). (FAC ¶¶ 43-49.) In her second claim, Plaintiff alleges she was sexually harassed in violation of Title VII, 42 U.S.C. § 2000e-2(a). (FAC ¶¶ 50-55.) In her third claim, Plaintiff alleges that SWC breached Plaintiffs oral employment contract by firing her without ■ good cause. (FAC ¶¶ 56-61.)In her fourth claim, Plaintiff alleges that she was discharged in retaliation for filing a workers’ compensation .claim or in retaliation for complaining to authorities about workplace safety. (FAC •¶¶ 62-67.) In her fifth claim, Plaintiff asserts a claim for intentional infliction of emotional distress (IIED) alleging that SWC failed to protect her from sexual harassment and other offensive conduct. (FAC ¶¶ 68-72.) In her. sixth claim, Plaintiff asserts a claim of negligent supervision for SWC’s failure to supervise employees who sexually harassed Plaintiff. (FAC ¶¶ 73-83.) In' her seventh claim, Plaintiff alleges that SWC racially discriminated against her in violation of 42 U.S.C. § 1981 because SWC failed to promote her,-tolerated a racially hostile work environment, discharged her, and treated her less favorably because.of her race. (FAC ¶¶ 84-92.) In her eighth .claim, Plaintiff, alleges SWC discriminated against her because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1). (FAC ¶¶ 93-97.)

A. General allegations of mistreatment, injury, and retaliation.

Plaintiff claims at all times she was performing her job duties satisfactorily. (FAC ¶ 42.) Plaintiff alleges that in 2013, an unnamed employee made an accusation against a truck driver, but when Plaintiff would not join in the accusation, George Chappell, SWC President, “tried to get her written up.” (FAC ¶ 13.) ,

On October 2,2013, Plaintiff was injured “when a door slammed into her.” (FAC ¶ 15.) Plaintiff was taken to the office to see Debbie Abrego, the Safety Manager. In Ms. Abrego’s office, firefighters and paramedics were receiving training. (Id.) Ms. Abrego asked the trainees “what they thought of [Plaintiffs] injury.” (Id.) “One of the men opined that he did not think [Plaintiff] .was injured. Travis Martin then told Plaintiff to get back to work. Plaintiff demanded to be taken to the hospital to be x-rayed,” (Id.) “Plaintiff was released to return to work.” (FAC ¶ 16.)

On October 30, 2013, fire alarms went off in the SWC plant. Justin Musick,. a supervisor, “told Plaintiff that if she left her work area she would be terminated.” (FAC ¶ 17.) On November 4, 2013, Plaintiff filed a complaint with the New Mexico and Federal Occupational Safety Health- Administration regarding'unsafe conditions at SWC, “including two anomia [sic] leaks that employees were not made aware of that threatened them lives; fire alarms going off in the building; employees being reluctant to report injuries due to retaliation and harassment; and employees being exposed to chemicals for cleaning trucks.” (FAC ¶ 18.)

On November 18, 2013, Plaintiff received a letter from the New Mexico Occupation and Safety Bureau stating that “the unsafe working conditions have been corrected.” (FAC ¶ 19.) SWC’s entire plant “had- to be re-wired because of corroded wires.” (FAC ¶ 20.) Plaintiff alleges that SWC retaliated against her for making the safety complaint: (1) Plaintiff was called into her supervisor's office for “petty work rule violations;” (2) Plaintiff was falsely accused of incorrectly taking milk samples; (3) Supervisors Eric Denton and Justin Musick “watched Plaintiffs work performance on a daily basis[;]”(4) Plaintiff was accused of “not taking milk tankers into the plant in a timely fashion[,]” a job for which she was not responsible; (5) Plaintiff was referred to contemptuously as a “whistleblower” by Mr. Musick, Mr. Denton, and other supervisors; and (6) Mr. Musick stated “that nigger ... is not going to get away with this [the safety report].” (FAC ¶¶ 18, 20 iv.)

B. Allegations regarding Plaintiffs write-up and suspension for tongue ring.

On January 8, 2014, Plaintiff was called into a supervisor’s office by three supervisors, Mr. Denton, Mr. Musick, and Mr. Campbell, and Plaintiff was “forced to open her mouth to see if she had a tongue ling.” (FAC ¶ 21.) “Plaintiff stated that she was being sexually harassed and she was not opening her mouth.” (Id.) Plaintiff complained to HR employee Leah Jackson about the sexual harassment, but Ms. Jackson told Plaintiff she would have to make an appointment. (Id.) The next day, Plaintiff called Ms. Jackson, but she refused to see Plaintiff. Leah Jackson told Plaintiff “that the issue was between Plaintiff and management (3 white males).” (Id.) Plaintiff asserts that “[t]his write up was in retaliation for Plaintiff making a work place safety complaint to the Occupational Health and Safety Bureau. Other white females on the floor wore tongue rings but were not harassed the way Plaintiff was harassed.” (Id.)

On January 20, 2014, Plaintiff was called into Ms. Jackson’s office and was “given a ‘write up’ for not shaking milk samples with both hands despite Plaintiffs right arm being injured.” (FAC ¶ 23.)

On January 31,2014, Plaintiff was called into Mr. Denton’s office and was given a' disciplinary write-up “because Plaintiff wore a tongue ring.” (FAC ¶ 24.) For the same reason, Plaintiff was suspended without pay on February 10, 11, and 14, 2014. (Id.) Similarly situated white female employees with tongue rings including “Ashley May, Manie Collins and Tammy Pruiser were not disciplined by SWC, or subjected to humiliating inspections.” (Id.)

C. Allegations regarding failure to promote.

In January 2014, Plaintiff applied for a Quality Assurance job. (FAC ¶ 22, Ex. 1.) “A white male was given the job despite the fact that he had never worked in a cheese plant and was not as quálified as Plaintiff. Plaintiff was denied the promotion because of her status ’as a female African-American and her age.” (Id.).

D. Allegations of Plaintiffs workers’ compensation claim, FMLA leave, return to work, and discharge.

On March 27, 2014, Plaintiff applied for workers’ compensation and took leave under the Family Medical Leave Act (FMLA). (FAC ¶ 25.) On June. 6, 2014, “Plaintiff was released back to work with restrictions by Plaintiffs, physician.” (FAC ¶ 26, Ex. 3.) However, “Plaintiff was told not to come to work because Human Resources needed to see Plaintiff on June 9, 2014.” (FAC ¶ 27.) On June 9, 2014 in the late morning, Ms. Jackson and Mr. Denton told Plaintiff to go home “because they needed to call Plaintiffs physician and that Plaintiff should call Human Resources every day.” (FAC ¶ 28.) Plaintiff “started calling every day until June' 18th, 2014.” (FAC ¶ 29.)

On June 18, 2014, Ms. Jackson, Mr. Denton, and Ms. Abrego signed Plaintiffs work release indicating that they were “aware of restrictions” and that they agreed that “these restrictions can be accommodated.” (FAC ¶ 31, FAC Ex. 3.) The restrictions listed were “[n]o bending, lifting twisting or turning” and “[n]o lifting more than 20 lbs.” (FAC Ex. 3.) Plaintiff worked on June 18, 19, and 20, 2014 in the laboratory. (FAC ¶ 31.)

On June 20, 2014, Plaintiff was called into Ms. Abrego’s office. Ms. Abrego “stated that Plaintiff needed to leave because Defendant was not going to accommodate Plaintiffs work restrictions.” (FAC ¶ 32; Ex. 5.) Plaintiff was' given a memo stating that Ms. Abrego was “asking [Plaintiff] to discontinue work due to her having concerns about the position in which she had been assigned for her accommodation for her workers [sic] . compensation case.” (FAC Ex. 5.) The memo stated that Ms. Abrego “reviewed all the current available tasks ... All the tasks suggested will cause further aggravation and pain .■... At this time, I am unaware of any transitional duties that will not cause further harm.” (Id.) Ms. Abrego’s memo stated that she told Plaintiff “to go home since we cannot accommodate at this time.” (Id.)

Plaintiff alleges that SWC had accommodated white employeés with work restrictions by “placing them in front office positions.” (FAC ¶ 33.) However, “SWC refused such an accommodation because of Plaintiffs status as a female African-American.” (Id.) It was “well known by Plaintiff and others that any African-American or Hispanic” who was injured on the job “was terminated.” (FAC ¶ 34.)

On July 1, 2014, Plaintiff received a telephone call from Ms, Abrego “asking Plaintiff to come in.” (FAC ¶ 35.)

On July 4, 2014, Plaintiff received a letter from Ms. Jackson, -informing Plaintiff that her job was terminated effective June 20,2014: ■'

Marilyn, you had an appointment scheduled with Debbie Abrego and me for Monday June 30, 2014 at 10am [sic]. You called Debbie to cancel that appointment on Friday, 6/27/14. You advised Debbie that you would call Monday afternoon to schedule an appointment with- us on Tuesday, 7/1/14. You did not contact her. Since we did not hear from you, we made five attempts to contact you regarding your continued employment at Southwest Cheese. You have not returned our calls from 7/1, 7/2 and 7/3. As we discussed several times, you exhausted your FMLA protection on 6/20/14. Therefore, effective immediately, your employment is terminated due to job abandonment.

(FAC ¶ 86, Ex. 4.)

E. Allegations of sexual harassment. Plaintiff asserts that she “was discriminated against because of her gender which was .sufficiently severe and/or pervasive such that it altered the terms and/or conditions of her employment and created an abusive working environment]/]” (FAC ¶ 38.)' In 2007, Paul Conrow, a manager, grabbed Plaintiff from behind and squeezed her buttock at an SWC Christmas party. (FAC ¶38 i.) In 2007, Lonnie Hudson, a,manager, grabbed Plaintiff from behind while at work. (FAC ¶ 38 ii.) “Plaintiff was taken off the night shift and her pay was reduced.” (Id.)

Plaintiff saw several supervisors,'including Team Leader Donnie Romero, Production Manager-Ricardo Rivas, Team Leader Jose Borjas,- and Team Leader Johnny Ortiz, go onto the “VAT deck-” at-SWC and “hose female employees [sic] shirta down with water so as to expose their undergarments and the outline of their female anatomy on a frequent and continuous basis during her employment at SWC.” (FAC ¶ 38 iii.). Plaintiff was “sprayed with .water by a Team Leader, Danny Garcia, while on the ‘VAT deck’ causing her extreme embarrassment and humiliation.” (FAC ¶ 38 iv.) “Plaintiff was sprayed with water” by Mr. Romero “on average at least three times a week during her employment with SWC until approximately May, 2014 when [Mr. Romero] was terminated[,]” (FAC ¶ 38 v.)

“In 2007-08 Plaintiff complained to ■Brenda Miller ... about the water spraying.” (FAC ¶ 38 vi.) “Brenda Miller said a letter would be issued, but Plaintiff never saw the letter and the spraying continued to occur against Plaintiff and other female employees in her presence.” (M) -Plaintiff was continuously afraid to go on the VAT deck “for fear of being hosed down with water like an animal by Team Leaders in order to satiate Team Leaders [sic] perverted fetishes throughout the term of her employment which materially changed-the terms and conditions of her employment.” (FAC ¶ 38 vii.) -

Cody Stewart referred to his genitals as his “brain” in front of Plaintiff and other females. (FAC ¶ 38 ix.) '

“Steven Campbell (a white male) stalked Plaintiff continuously on the job.” (FAC ¶ 38 x.)

Assertive women were disparagingly referred, to as “lesbians” and their sexual identity [was] questioned in front.of Plaintiff. (FAC ¶ 38 xii.) ■■

F. Allegations of racial disparate < treatment and' racial harassment.

In 2013, Plaintiff took the lab tech examination. (FÁC ¶14.) Plaintiff alleges that the examination “was given to three white employees in a room where the answers to the examination were posted. Plaintiff was forced to take the examination in a different room in front of a SWC employee who accused her of cheating. Plaintiff passed the examination and was given the job of lab tech.” (Id.)

SWC had a “custom, routine and practice of discriminating against African-Americans and females” by disciplining them more severely than similarly situated males. (FAC ¶ 39.) African-Americans were suspended and/or terminated for “talking back” while similarly situated white employees were not. (Id.) .

Team Leader Danny Garcia used the racial epithet “nigger” (referred to as the n-word) on a frequent and continuous basis during Plaintiffs employment. (FAC ¶40 i.) Tony Garza used the n-word in front of Plaintiff. (FÁC ¶ 40 ii.) Plaintiff heard the n-word in the break room and racial jokes about African-Americans were told in front of Plaintiff, which “embarrassed and humiliated her.” (FAC ¶40 iii.) Plaintiff attempted to report this racially offensive behavior to the HR Managér Brenda Miller, “but nothing was done.” (FAC ¶ 40 iv.)

“In 2009, SWC employee Tim Rogers (a white male SWC employee), called truck drivers the ‘n-word.’ ” (FAC 1140 vii.) After a meeting with the trucking company, SWC President George Chappell not only refused to fire Mr. Rogers, but walked into the lab and shook Mr. Rogers’ hand and promoted Mr. Rogers to a job in the front office. (Id.)

After Plaintiff made the report about the safety of the SWC plant in November 2013, Plaintiff overheard Mr. Musick state, “that nigger ... is not going to get away with this....” (FAC ¶ 18.)- Mr. Musick made an offensive racial joke about the President of the United States. (FAC ¶ 40 vi.) . ....

African-Americans employed at SWC were treated “much more harshly” than white or Hispanic workers. (FAC ¶ 40 v.) One African-American worker,- Josh Ford, was suspended for two weeks for “talking back to the Production Manager’s wife in 2014.” (Id.) The same worker was demoted for “being 2 minutes late for a meeting.” (Id.) “White male workers who questioned or ‘talked back’ to management or. were late -or. no shows to meetings were not terminated or disciplined.” (Id.)

In 2013, Plaintiff was instructed “not- to bring her lunch pail into the locker room or take her lunch down the blue hall way [sic].” (FAC ¶ 40 ix.) Plaintiff was forced to walk outside.to eat her lunch. (Id.) The same rule was not enforced against white employees. (Id.)

In 2014, Plaintiffs supervisor, Mr. Den-ton, tried to write up Plaintiff for having an unopened soda can in the break room, but another employee, Perla Tarango, kept several sodas and food in the break room refrigerator. (FAC ¶ 40 viii.)

In. February,2014, Plaintiff applied for Production Manager, but a “white male, who Plaintiff had trained in the lab was hired despite having less [sic] qualifications than Plaintiff.” (FAC ¶ 41 i.)

Plaintiff was the only person on the VAT deck required to reheve lab operators for breaks and lunch. This required a long walk allegedly designed to harass Plaintiff as an African-American female. (FAC ¶ 40 x.)

“A white employee threatened to kill Plaintiff.” (FAC ¶ 38 xi.)

G, Allegations of age discrimination.

Plaintiff claims she was discriminated against due to her age because much younger, less qualified employees were chosen for job promotions over Plaintiff. (See generally FAC ¶ 41.) In paragraph 22 of the FAC, Plaintiff states that she applied in 2014 for a position as Quality Assurance, but a white male was given the job “despite the fact that he had never worked in a cheese plant and was not as qualified as Plaintiff. ■ Plaintiff was denied the promotion because of her status as a female African-American and her age.” (FAC ¶ 22.)

Plaintiffs allegations related to age discrimination are listed paragraph 41 of the FAC. In 2013, Plaintiff applied for Assistant Team Leader, but a 22 year old white woman was hired “despite the fact she had been there only three weeks and was not as qualified as Plaintiff.” (FAC ¶ 41 ii.) Danny Garcia,-' the Team Leader, “said Plaintiff was too . old for the job because Plaintiff would have to walk up stairs.” (Id.) Also, in 2013, Plaintiff applied for Assistant Quality Assurance of production, but a‘“26-27 year old female ... was hired despite Plaintiff being more qualified.” (FAC ¶ 4liii.) Again in 2013, Plaintiff learned that SWC was going to open another lab position for an Assistant Team Leader “which was then closed to Plaintiff when she indicated an interest in the job.” (FAC ¶ 41' iv.) SWC did not advertise internal promotions, and Plaintiff was not considered for these promotions “based on her age.” (FAC ¶ 41 v.)

Plaintiff asserts that she asked several management employees to give her a “decent chair to sit in for her work.” (FAC ¶41 xi.) But, Plaintiff was given a chair with “protruding metal edges with duct tape.” (Id.) Younger white female employees working in the front office “were given $1000 dollar [sic] chairs (each) to sit in,” (Id.)

In 2011 and again in 2014, “Plaintiff was informed that if she did not come back to work soon she would be replaced by a younger worker.” (FAC ¶ 41 xiii.)

III. DISCUSSION

A. Plaintiff failed to exhaust her first and second claims for racial, age, and sexual harassment.

1. Plaintiffs harassment claims under the NMHRA were not exhausted.

Under the NMHRA, Title VII, and the ADEA, a claimant must exhaust administrative remedies before filing suit. See Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (recognizing that ADEA and Title VII require exhaustion of administrative remedies); Luboyeski v. Hill, 117 N.M. 380, 872 P.2d 353, 355 (1994) (“[W]hen a defendant is sued under the [New Mexico] Human Rights Act the plaintiff must exhaust her or his administrative remedies before bringing an action in district court.”). Requiring a claimant to exhaust the administrative process “put[s] an employer on notice of a violation prior to the commencement of judicial proceedings ... [and facilitates] internal resolution of the issue rather than promoting costly and time-consuming litigation.” Mitchell v. City and County of Denver, 112 Fed.Appx. 662 (10th Cir. 2004) (citation omitted) (unpublished).

A plaintiff must file a charge of discrimination with respect to each discrete instance of-discrimination or retaliation. Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012). When a court considers whether a plaintiff has exhausted administrative remedies with respect to a specific claim, the court looks to the “scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discrimination and retaliatory actions underlying each claim.” Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). In Apsley, the Tenth Circuit upheld the dismissal of a retaliation claim because an employee’s charge only mentioned “discrimination” as the basis for the charge. Apsley, at 1210, (“[n]othing in the EEOC forms put the [employer] on notice of retaliation claims relating to gender, race, or disability”).

To exhaust a hostile work environment claim, a claimant’s charge must describe a “workplace ... permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working envi-ronmentf.]’ ” Hunt v. Riverside Transp., Inc., 539 Fed.Appx. 856, 859 (10th Cir. 2013) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal quotation marks omitted)). In Hunt, the Tenth Circuit upheld the dismissal of a claim that plaintiff was subjected to a racially hostile work environment because the narrative portion of his charge did-not “adequately describe a hostile work environment.” Id. The Tenth Circuit reasoned that “Mr. Hunt’s hostile work environment claim could not reasonably be expected to follow the allegations contained in his. charge.” Id. (citing Jones v. UPS, Inc., 502 F.3d at 1187). Mr. Hunt’s charge described a manager’s comment that they would “put [a] mop handle up [Mr. Hunt’s] butt and make a fudge sickle out of [him],” and that a human resources supervisor “talk[ed] down to [him]” and. “fuel[ed] hostility.” Id. at 857. The court, concluded that “Mr. Hunt did not specify that he was complaining of a hostile work environment nor did the narrative portion of his charge adequately describe a hostile work environment.” Id. at 859.

SWC correctly points out that only two discrete discriminatory acts were described in Plaintiffs Charge: (1) the January 2014 failure to promote Plaintiff to a Quality Assurance position; and (2) the January 2014 suspension for wearing a tongue ring. SWC asserts that because only two events are described in the Charge, Plaintiff should not be allowed to present any other events in support of her claims for race, sex, and age discrimination under the NMHRA, Title VII, and the ADEA.

Plaintiff urges that Court to “look beyond the formalities of' the complaint form.” According to Plaintiff, the narrative of Plaintiffs Charge “complains of a hostile work environment over a period of time[.] (Resp. at 7-8.) However, the Court can find no reference to a hostile work environment in Plaintiffs Charge. Nor does the Charge contain a description of events that may be construed as creating a hostile or abusive work environment. In fact, words such as “hostile work environment,” harassment”- or “abuse” do not appear in the Charge or in the attached EEOC Intake Questionnaire. (FAC Ex. 1.) The Charge does not mention that Plaintiff and other females were sprayed with water or that racially hostile words like the “n-word” were used by employees at SWC. The Court does not see how Plaintiffs Charge would lead to an investigation of sexual, racial, or age-related-harassment.

In Mitchell v. City and County of Denver, an African-American plaintiff alleged in his court complaint that his employer racially discriminated against him by promoting Caucasian employees more quickly and by giving Caucasian employees more favorable work assignments. 112 Fed.Appx. at 664. The plaintiff also asserted claims for racial harassment/hostile work environment. Id. at 665. In his administrative charge, however, the plaintiff had only alleged, racial discrimination for his employer’s failure to promote him. Id. The district court granted summary judgment in favor of Denver Water, one of the defendants, and dismissed the plaintiffs racial harassment/hostile work environment claim for failure to exhaust administrative remedies. Id.

The Tenth Circuit noted that an employee’s judicial complaint “may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC.” Id. citing Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994)). But, the court recognized that a claim is considered “reasonably related” when “the conduct complained of would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge that was made.” Id. (citing Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003)). The Tenth Circuit carefully considered the language used and the boxes checked in Mitchell’s administrative charge. In the section titled “Cause of Discrimination,” Mitchell checked the boxes marked “race” and “retaliation.” Id. at 667. In the section titled “Date of Discrimination,” he checked the box marked “continuing action;” however, in that same section, he indicated only one date as the date of discrimination. Id. In his statement of “Personal Harm,” Mitchell wrote:

Denver Water “fail[ed] to promote me ,.. because of my race/African Ameri-can ... and in retaliation for engaging in protected activity.” ... [Mitchell alleged]: (1) he had always been a “satisfactory to above-satisfactory” employee, (2) three Caucasian males with less seniority and experience had been promoted in the last six months, (3) throughout this period he had consistently complained to his superiors regarding what he perceived to be discriminatory treatment, (4) he had filed a previous charge of discrimination ..., (5) [Supervisor] Funk allegedly stated, “this nigger [Mitchell] ain’t going anywhere as long as he works for me,” and (6) he remained employed “at a lesser step than he should be.”

Id. (citations to appellate record omitted). The Tenth Circuit concluded that a liberal construction of the plaintiffs charge could not have led an investigator to uncover a racial harassment/hostile work environment claim because “[n]othing in Mitchell’s EEOC complaint indicates a hostile work environment.” Id. at 668.

The Court comes to the same conclusion hére. Plaintiffs Charge contains no description of a hostile work environment at SWC whether based on race, sex, or age. Plaintiffs allegations were specifically related to SWC’s failure to promote her in January 2014 to the position of “Quality Assurance,” which Plaintiff complains was “given to a much younger, White Employee.” (FAC Ex. 1.) Similarly, Plaintiff’s account of her January 2014 suspension for having a tongue ring would not lead an investigator to find racial or sexual harassment. (Id.) Hence, the Court concludes that Plaintiff did not exhaust administrative remedies for her claims of race, sex, or age-related hostile work environment. See Edwards v. Creoks Mental Health Servs., Inc., 505 F.Supp.2d 1080, 1092 (N.D. Okla. 2007) (“Reading plaintiffs EEOC charge liberally, the Court .finds that the investigation of her religious discrimination, retaliation^ and disability discrimination claims could not reasonably be expected to lead to a hostile work environment claim. Nothing in plaintiffs EEOC claim, including her general intake questionnaire, lays a factual foundation for a hostile work environment claim.”).

Because Plaintiff did not exhaust administrative remedies as to her sexual harassment claims, Plaintiff may not, for example, pursue a claim that she was sexually harassed when in 2007, Paul Conrow and Lonnie Hudson on separate occasions grabbed Plaintiff from behind. In addition, Plaintiff may not pursue NMHRA and Title VII claims of sexual harassment based on allegations that she and other, female employees were sprayed with water at least three times a week during her employment. Plaintiff may not pursue a hostile .work environment, claim related to Cody Stewart’s sexually offensive behavior, Mr. Campbell’s stalking behavior, or other employees’ references .to assertive women as “lesbians.” Likewise, Plaintiffs claims of racial harassment were not exhausted because she omitted from the Charge any description of employees’ use of the n-word or employees’ offensive racial jokes. Thus, she may not pursue a claim of racial hostile work environment •under the NMHRA or under Title VII.

Consequently, the Court will dismiss without prejudice Plaintiffs first claim that she was subjected to unlawful sexual, racial, and age harassment in violation of the NMHRA (FAC ¶¶ 43-49) for failure to exhaust administrative remedies. In addition, Plaintiffs second claim that she was sexually harassed in violation of Title VII (FAC ¶¶ 50-55) will be dismissed without prejudice for failure to exhaust administrative remedies. See Pretlow v. Garrison, 420 Fed.Appx. 798, 803 n.5 (10th Cir. Mar. 22, 2011) (unpublished) (holding that- “a jurisdictional dismissal, here for lack of exhaustion, is a non-merits disposition to be made without prejudice.”).

2. Allegations other than January 2014 failure to promote.

SWC further argues that Plaintiffs Title VII and NMHRA claims are not for disparate treatment because the FAC characterizes both of these claims as hostile work environment claims. SWC is correct. In Plaintiffs NMHRA claim she only alleges a violation based on “sexual, racial and age harassment.” (FAC ¶44.) Hence, the Court will dismiss Plaintiffs NMHRA claim in its entirety for failure to exhaust. SWC argues that in her second claim under Title VII she not only alleges a sexually hostile work environment, but also attempts to tie her terminatidn to that hostile work environment. To the extent Plaintiff claims she was terminated based on her gender in' violation of Title VII, the-Court will'dismiss that claim for failure to exhaust. Chapman v. Carmike Cinemas, 307 Fed.Appx. 164, 174 (10th Cir. 2009) (affirming dismissal for failure to exhaust and concluding that even though constructive discharge claim was related to exhausted hostile work environment claim, since it was a discrete discriminatory act, plaintiff had to file an additional administrative charge to preserve it from dismissal).

SWC argues that Plaintiff for the first time alleges that she was refused a work accommodation (FAC ¶ 41 xi) in the form of a decent chair to sit in, due to her age, while younger female employees in the front office were given expensive chairs to sit in. (Id.) SWC maintains that Plaintiffs failure to include this allegation in her Charge, which SWC characterizes as a disparate treatment claim, warrants dismissal for failure to exhaust. To the extent that Plaintiffs language in FAC ¶ 41 xi can be interpreted as a disparate treatment claim under Title VII, either based on age or sex, that claim will be dismissed for failure to exhaust.

B. Plaintiff fails to state a claim for breach of contract.

In her third claim, Plaintiff alleged that SWC breached Plaintiffs implied employment contract by firing her -without good cause. (FAC ¶¶ 56-61.) Plaintiff further alleged that she accrued 300 hours of personal leave time for which she was never compensated. (FAC ¶ 41 xii.) Plaintiff alleged that an implied contract arose out of SWC’s “policy” of terminating employees only for good cause. .(FAC ¶ 12.) Plaintiff alleged that after the ninety-day probation period, she was “employed by Defendant under an oral contract of employment which was- modified and re-enforced by certain policies, practices, assurances and other express and implied statements- of Defendant. In said contract, it was implicitly agreed that Plaintiff would not be impeded in her job duties, and that she would be terminated only with advanced notice, opportunity to remediate deficiencies and for good cause.” (FAC ¶ 57.) Plaintiff contends that she was performing her obligations under her contract, but she was fired without good cause, without notice, and without an opportunity to remediate. (FAC ¶ 58-59.)

Under New Mexico law, unless there is an explicit contract of employment stating otherwise, employment is terminable at will. Negrete v. Maloof Distr. LLC, 762 F.Supp.2d 1254, 1284 (D. N.M. 2007) (citing Sanchez v. The New Mexican, 106 N.M. 76, 78, 738 P.2d 1321, 1323 (1987)). New Mexico recognizes two exceptions to this general rule: 1) wrongful discharge in violation of public policy, such as retaliatory discharge; and 2). an implied contract that restricts the employer’s power to discharge employees at will. Id. (quoting Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029, ¶ 10, 121 N.M. 728, 918 P.2d 7, 10).

The New Mexico Supreme Court explained that “whether an implied contract exists is a question of fact, and it may be ‘found in written representations such as an employee handbook, in oral representations, in the conduct of the parties, or in a combination of representations and conduct.’” Id. (quoting Garcia; 1996-NMSC-029, ¶ 10, 121 N.M. 728, 918 P.2d 7). An implied contract is created only where an employer creates a reasonable expectation. The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon.” Gonzales v. City of Albuquerque, 849 F.Supp.2d 1123, 1167 (D. N.M. 2011) (citing Hartbarger v. Frank Paxton Co., 115 N.M. 665, 672, 857 P.2d 776, 783 (1993)). If the employer’s promise is not sufficiently explicit, no reasonable jury could find an implied contract. Id. (citing Hartbarger, supra).

SWC argues that Plaintiff failed to specifically allege what conduct or state-merits she relied on to reasonably and objectively believe she had a contract and could only be fired for cause. The Court agrees. Plaintiff failed to allege what “policies, practices, assurances, and other express and implied statements” were presented to her. She does not identify or name any employee or supervisor who made these assurances or statements to her. Although it is undisputed that SWC maintains a progressive discipline policy, the existence of this policy does not in and of itself create a reasonable expectation that SWC would fire only for cause. See Gonzales, 849 F.Supp.2d at 1168-69 (finding that progressive discipline policy was insufficient, without more, to create an implied employment contract). Plaintiffs allegations simply do- not plausibly state a claim that she had an implied contract that she could be fired only for good cause. Hence, the Court will dismiss Plaintiffs third claim for breach of contract.

C. Plaintiff states claims for retaliatory discharge;

1. New Mexico recognizes claims for retaliatory discharge.

In her fourth claim, Plaintiff alleges that she was discharged in retaliation for filing a workers’ compensation claim, or alternatively, for complaining to authorities about workplace safety. (FAC ¶¶ 62-67.) This claim stems from New Mexico common law, which allows a wrongfully discharged employee to claim retaliatory discharge in violation of public policy. Negrete, 762 F.Supp.2d at 1284.

SWC argues that the New Mexico Workers Compensation Act, NMSA 52-1-28.2(A), not New Mexico common law, provides the only remedy for workers who claim they were fired in retaliation for seeking workers compensation relief. However, the New Mexico Supreme Court has held that an employee who suffers a wrongful discharge in retaliation for filing a workers’ compensation claim has a cause of action independent from the relief provided in the Workers’ Compensation Act. See NMSA 1978, Section 52-1-28.2 (Repl. Pamp.1991) and Michaels v. Anglo American Auto Auctions, Inc., 117 N.M. 91, 93, 869 P.2d 279, 281 (1994) (holding that a claim for reinstatement and civil penalty under Act is not exclusive).

Next, SWC argues that New Mexico requires an employee to show he was discharged “for the sole reason that he sought workers’ compensation .benefits.” NMSA § 52-1-28.2 (A). SWC maintains that since Plaintiff has not alleged that her workers’ compensation claim was the sole reason she was discharged, Plaintiffs claim should be dismissed. The standard, however, applies only to the administrative remedy, not to the common law claim. Michaels, 117 N.M. at 93-94, 869 P.2d at 281-82 Thus, Plaintiff may assert a separate tort claim under, New Mexico common law that she was wrongfully discharged in retaliation for filing a workers’ compensation claim. Id.

Alternatively, Plaintiff alleges she was discharged for reporting SWC safety violations under the New Mexico Occupational Safety and Health Act (NM OSHA). See generally, NMSA 1978 §§ 50-9-1-50-9-25. In similar fashion, SWC argues that Plaintiff is limited to an administrative remedy under NM OSHA. However, New Mexico courts recognize that- an employee who is discharged for making a safety complaint has a private cause of action for retaliatory discharge. In Gutierrez v. Sundancer Indian Jewelry, Inc., the New Mexico Court of Appeals held that the administrative remedy under NM OHSA did not displace the common law remedy available to an employee who is discharged in retaliation for reporting safety concerns. 117 N.M. 41, 43, 868 P.2d 1266, 1268 (Ct. App. 1994). The court reasoned that since employers have a common law duty to provide a safe workplace, and since NM OHSA merely codified and detailed the scope of that duty, the remedy provisions of NM OSHA did not supplant the common-law action for retaliatory discharge. Id. at 48, 868 P.2d at 1273. Thus, Plaintiff may assert a separate tort claim under New Mexico common law that she was wrongfully discharged in retaliation for reporting unsafe practices in the workplace.

2. Plaintiff alleged a causal connection.,,

SWC argues that the Court should dismiss Plaintiffs claim for failure to allege a causal connection between Plaintiffs discharge from employment and her protected activity, either her workers’ compensation claim or her safety complaint. See Garrity v. Overland Sheepskin Co., 121 N.M. 710, 917 P.2d 1382, 1386 (1996) (stating that employees must show a “causal connection between their actions and their subsequent discharge.”). Even though 'this claim is governed by New Mexico law, courts may borrow the federal standard of proof from employment retaliation cases. See Ocana v. American Furniture Co., 2004-NMSC-018, ¶ 35, 135 N.M. 539, 91 P.3d 58 (stating that New Mexico courts may look to federal civil rights adjudication for guidance in interpreting NMHRA claims for retaliatory discharge). To state a claim for unlawful retaliation, Plaintiff must alleged she engaged in a protected activity, here the workers’ compensation claim or the safety report; SWC took adverse action against her contemporaneously or subsequent.to the protected activity; and there is a causal connection between such activity and SWC’s actions. Duran v. New Mexico Dept. of Labor, 143 F.Supp.2d 1278, 1284 (D. N.M. 2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Plaintiff has clearly alleged the first two elements, that she engaged in protected activity and that she suffered an adverse employment action.

Courts have applied a two-fold test for showing causation -in retaliation cases. First, a plaintiff either must show that there is a close temporal proximity between the protected conduct and the adverse action, or a plaintiff must allege facts supporting an inference of retaliatory motive that link the discharge from-employment to plaintiffs protected conduct. Second, the plaintiff must show that the person making the employment decision knew of the protected conduct at the time the decision was made. Duran, 143 F.Supp.2d at 1284 (citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)).

SWC correctly asserts that the Tenth Circuit requires a close temporal proximity to meet the first causation requirement. Id. A gap of more than three months between the protected activity and the adverse employment action,, standing alone, is insufficient to establish causation. Anderson, 181 F.3d at 1179. SWC maintains that Plaintiff cannot meet the causal connection requirement because Plaintiffs two protected activities occurred more than 3 months and more than 8 months, respectively,.before she was fired.-However, a short time gap between protected activity and an adverse employment action is only one way to show a causal link between the employee’s activity and employer’s retaliation. For example, evidence that an employee was called a “troublemaker” or that an employee was not recommended for a position because of “vocal and demonstrative” activities, may also support causation. Dillon v. Twin Peaks Charter Academy, 2009 WL 2982008, *3 (D. Colo. Sept. 11, 2009) (finding that -the plaintiff established a jury question on causation related to retaliation claim).

Plaintiffs safety complaint, which led to a complete rewiring of the SWC plant, occurred about 8 months before she was discharged. Plaintiff alleged that after her safety complaint “[i]n 2014, Plaintiff was referred to contemptuously as a ‘whis-tleblower’ by Mr. Musick, Mr. Denton, and other supervisors.” (FÁC ¶ 20 vi.) Plaintiff also asserts that' she ' overheard Mr. Musick state in reference to her' safety complaint, “that nigger ... is not going to get away with this." (FAC ¶ 18.) And Plaintiff alleges that supervisors retaliated against her by calling her into the supervisor’s office for petty work rule violations and by falsely accusing her of shoddy work performance or for failing to perform work that was not part of her job description. Although Plaintiffs dates are inexact, given the mandate that the Court construe the FAC favorably to Plaintiff, these allegations are sufficient to plausibly state a claim that Plaintiff was discharged in retaliation for making the safety complaint. See Dillon, supra.

In contrast, Plaintiff was discharged only 3 months and 7 days after she filed her worker’s compensation claim on March 27, 2014. If’the Court considers June 20, 2014 as the effective discharge date, Plaintiffs March 27, 2014 workers’ compensation claim was less than three months prior to her discharge. Plaintiff further alleges that on June 18, 2014, two days prior to Plaintiffs effective discharge date, Ms. Jackson, Ms. Abrego, and Mr; Denton signed a work release acknowledging Plaintiffs physical limitations and agreeing that SWC could accommodate Plaintiffs restrictions. (See FAC Ex. 3.) Nevertheless, two days later, Ms. Abrego gave Plaintiff a memo telling her to “go home since we cannot accommodate at this time.” (FAC Ex. 5.) Because her physical limitations were related to her workers’ compensation claim, these events support a retaliatory motive for Plaintiffs discharge. Finally, Plaintiffs allegation that it was “well known by Plaintiff and others that any African-American or Hispanic” who was injured on the job “was terminated,” also support causation. (FAC ¶ 34.) Given the temporal proximity of approximately 3 months between the workers’ compensation claim and her discharge and given the other allegations surrounding SWC’s accommodation or lack of accommodation of her physical limitations, and Plaintiffs perception that minority workers who made workers’ compensation claims were fired, the Court finds that Plaintiff has sufficiently pled a. claim that she was discharged in retaliation for filing a workers’ compensation claim. Because Plaintiff has sufficiently alleged that her discharge was causally linked to either her workers’ compensation claim or her safety complaint, the Court will not dismiss Plaintiffs fourth claim.

D. Plaintiffs IIED Claim.

In her fifth claim, Plaintiff alleged that SWC is liable for IIED “[i]n failing to protect Plaintiff from the continuing sexual harassment and other offensive conduct of [SWC’s] supervisors.” (FAC ¶ 69.) Plaintiff further alleged that “[SWC] abused its special position which vested it with substantial power to control her work environment and to damage her interests and well being [sic]-.” (Id.) Plaintiff alleged that as a result of SWC’s failure to protect her, Plaintiff suffered “extreme and severe mental anguish and emotional distress including loss of sleep, headaches, weight fluctuation, stress, depression, [and] worry on a daily basis[.]” (FAC ¶ 71.)

SWC argues that the Court should dismiss Plaintiffs IIED claim because it is supported by only “boilerplate” allegations without factual substance. 'However, by linking her allegations of sexual harassment to her IIED claim Plaintiff goes beyond mere boilerplate assertions of wrongdoing. However, the Court will not search out the FAC to determine what “other offensive conduct of [SWC’s] supervisors” would support this claim because the allegation is too vague. Consequently, the Court will analyze Plaintiffs IIED claim based on her description of sexual harassment. ...

1.Plaintiffs claim is timely.

Before addressing the substance of Plaintiffs factual allegations, however, the Court will address SWC’s argument that Plaintiffs claim is barred by the three-year statute of limitations for IIED claims. See NMSA 1978, § 37-1-8. Undér New Mexico law, the statute of limitations begins to run as soon as the plaintiff knows of the facts on which his or her claim is based. McDow v. Gonzales, No. CIV 07-1266 JB/WPL, 2008 WL 5979833, *14 (D. N.M. Sept. 30, 2008) (unpublished). The first acts on which Plaintiff bases her claim are the 2007 incidents in which Plaintiff was “grabbed from behind,” and Plaintiff was taken off the night shift and her pay was reduced. (FAC ¶ 38 i, ii.) Next, Plaintiff alleges she was sprayed with water and witnessed other females sprayed with water on the VAT deck, which exposed their undergarments and female anatomy. No dates are given as to when this first started, but Plaintiff alleged that “[i]n 2007-08 Plaintiff complained to Brenda Miller the Human Resources Manager about the water spraying.” Thus, the Court infers that the water spraying began as early as 2007. Plaintiff alleged that she was “sprayed with water by Supervisor Donnie Romero on average at least three times a week during her employment with SWC until approximately May, 2014 when he was terminated ... Donnie Romero had power to terminate Plaintiff and/or materially change the terms and conditions of her employment .and was a supervisory, personnel [sic] of Defendant.” (FAC ¶ 38 v.) Plaintiff further alleged that in January 2014 she was sexually harassed when she was “forced to open her mouth to expose a piercing while younger females were not required to do the same humiliating act.” (FAC ¶21.) Plaintiff failed to allege when the other sexually offensive incidents occurred. (See FAC ¶ 38 ix-xii.)

Plaintiffs allegation that -she was inappropriately “grabbed from behind” by male employees on two occasions in 2007 is time barred because these discrete incidents occurred more than three years pri- or to the date this suit was filed. On the other hand, the allegation that Plaintiff and other females were sprayed with water from 2007 until May 2014 does not render Plaintiffs IIED claim untimely because the behavior continued to May 2014, within the limitations period. See Montoya v. New Mexico Dep’t. of Pub. Safety, Civ. No. 09-1068 BB/RLP, MEMORANDUM-OPINION AND ORDER (Doc. No. 27), at 4-5 (D. N.M. Mar. 30, 2010) (unpublished) (finding that IIED may be considered a continuing tort).

2,Plaintiffs previous affidavit testimony does not affect the accrual of Plaintiffs IIED claim.

SWC contends that the Court should dismiss Plaintiffs IIED claim as untimely based on Plaintiffs testimony in a previous sexual harassment case against SWC, Macias v. Southwest Cheese Co., No. 12-CV-350 (D. N.M. Dec. 7, 2015). On December 6, 2015, Plaintiff testified by affidavit as follows:

3. I [sic] 2007 was sprayed with water by Assistant Team Leader Manual Rodriguez while on the VAT deck. This was unwelcome, and humiliating and • interfered with my ability to do my job.

4. In 2007 I saw SWC Assistant Team Leader Jose Borjas'spray water on other female employees on the VAT deck on a continuous and frequent basis in the presence of managers who would laugh. The water would wet down the females [sic]- shirt so that the outline of their breasts and genitals could be seen along with' the outline of their undergarments. This was humiliating and unwel1 come to me.

5. In 2009 I saw Team Leader Donnie Romero spray females with water. .

Mot. Ex: A ¶¶ 3-5, No. 12-CV-350 JAP/ WPL (Doc. No. 130-3). SWC contends that Plaintiff previously testified that she was sprayed with water in 2007 by Mr. Rodriguez and that she saw Mr. Borjas and Mr. Romero spray others with water in 2007 and 2Q09, but Plaintiff now alleges in the FAC that Mr. Romero sprayed her with water on a weekly basis throughout her employment and that Mr. Garcia also sprayed .her with water. SWC further contends that Plaintiffs allegations in the FAC contradict her affidavit. Plaintiff alleged in her FAC that she reported the water spraying in 2007-08, and “Brenda Miller said a letter would be issued, but Plaintiff never saw the letter and the spraying continued to occur against Plaintiff and other female employees in her presence.” (FAC ¶ 38 vi.) However, in her affidavit,' Plaintiff testified, “I received a letter from Brenda Miller of Human Resources that the water spraying should stop. However, the water spraying continued throughout the term of my employment.” (Mot. Ex. A ¶ 6.)

SWC'argues that Plaintiffs allegations in the FAC are so different from her affidavit testimony in Macias that the Court should “reject- Plaintiffs misleading attempts to avoid limitations here and dismiss her allegations regarding water spraying as barred by limitations.” (Mot. at 7.) SWC essentially asks the Court to disregard Plaintiffs allegations in her FAC that she was the victim of water spraying on a continuing basis from 2007 until May 2014.

Plaintiff responds that the affidavit does not directly contradict her allegations that she was sexually harassed on a continuing basis from 2007 until 2014. Plaintiff argues that the Macias case focused on events that occurred between 2009 and 2011, the time period Ms. Macias was employed at SWC, and “there was no point in discussing [Plaintiffs] issues that occurred some three years after Ms. Macias left SWC.” Moreover, Plaintiff contends she “consistently has stated that she complained to the Human Resources Director Brenda Miller about the water spraying; and that Miller promised that a letter would be issued; but the water spraying continued unabated.” (Resp. at 4.) Plaintiff claims that her affidavit in Macias is “not germane to a Motion to Dismiss which tests only the legal sufficiency of the pleading and is an improper attempt to convert the Motion into a motion for summary judgment.” (Resp. at 3-4.)

In support of its argument that dismissal is appropriate, SWC cites a case, in which the Tenth Circuit upheld a district court’s use of court documents to determine whether a plaintiff had knowledge of a claim sufficient to trigger the statute of limitations. In Stone v. Whitman, 324 Fed.Appx. 726 (10th Cir. 2009), the plaintiff was named in 2000 as a co-representative of the estate of a man who committed suicide in 1996. Id. at 727. As part of the 1996 death investigation, the Denver Police Department (DPD) confiscated three guns from the decedent’s home along with a handwritten will' naming the plaintiff as sole beneficiary to his estate. Id. In 2006, the plaintiff filed an action in small claims court against the City and County of Denver seeking damages because the DPD had destroyed two of the guns and had given one' gun tb the wrong person. Id. In July 2007, after the small claims case was dismissed, the plaintiff filed a § 1983 claim in federal district court alleging she was deprived of property , without due process of law and without just compensation. Id. at 728. The defendants moved to dismiss arguing that plaintiffs claim was barred by the two year statute of limitations. Id. To determine when the limitations period on the plaintiffs claim began to run, the district court had to decide when the plaintiff knew or had reason to know of the existence of her injury and when the plaintiff had the right to redress that injury. Id. (citing Alexander v. Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004)).

Based on the record from small claims court, the district court found that the plaintiffs injury arose in 1996 when the plaintiff became aware of the will and the seizure of the guns. However, the district court held that the statute of limitations was tolled until May 2000, when the plaintiff was named co-representative of the decedent’s estate because at that time she acquired the right to make a claim on behalf of the estate. Id. at 727, see also 2008 WL 4079293, *2 (D. Colo. Aug. 26, 2008). Since the plaintiff did not file her claim under § 1983 .within two years of May 2000, her claim was time barred. Id. at 728, see also 2008 WL 4079293, *2.

On appeal, the plaintiff questioned the district court’s use of the record from small claims court to determine, on a motion to dismiss, when the statute of limitations clock began to run. Id. The Tenth Circuit affirmed and found that the district court “did not convert the motion to dismiss to a motion for summary judgment; rather, it simply took judicial notice of records from the proceedings in small claims court.” Id. (citing Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (court may take judicial notice of facts that are a matter of public record)).

Based on the holding in Stone, SWC argues that this Court should take judicial notice of Plaintiffs affidavit in Macias and find that Plaintiffs IIED claim based on sexual harassment is time barred. SWC asks the Court to rely on Plaintiffs affidavit testimony that the water spraying occurred in 2007 and in 2009, and SWC asks the Court to disregard Plaintiffs allegation in the FAC that she “was sprayed with water by Supervisor Donnie Romero on average at least three times a week during her employment with SWC until -approximately May, .2014.” SWC characterizes Plaintiffs! allegations of continuous .harassment as “a misleading attempt to avoid limitations.” (FAC ¶ 38 v.) However, SWC ignores Plaintiffs affidavit testimony in Macias that she “received a letter from Brenda Miller .., that the water spraying should stop. However, the water spraying continued, throughout the term of my employment.” (Resp. Ex. A ¶ 6) .(emphasis added), SWC attacks this statement -as misleading because her affidavit testimony about receiving a letter from Ms. Miller contradicts her allegation in the FAC that she “never saw the letter.” (FAC ¶ 38 vi.) However, SWC’s detailed arguments, that Plaintiffs FAC contradicts her prior affidavit testimony in Macias, ultimately involve an issue of credibility that is not appropriate to address in ruling on a motion to dismiss. Also, the Court must give deference to Plaintiffs allegation in the FAC, which is not wholly contradicted in her Macias affidavit. Consequently, Plaintiff has sufficiently alleged a continuing series of sexually harassing events that precludes dismissal of her IIED claim as untimely,

3. . Plaintiff sufficiently alleged outrageous conduct.

SWC next argues that Plaintiff has failed to state an IIED claim because, as a matter of law, Plaintiff has not alleged that she was injured by extreme and outrageous conduct. To recover for intentional infliction of emotional distress, a.plaintiff must show (1) the defendant’s conduct was extreme and outrageous; (2) the defendant’s conduct was intentional or in reckless disregard of' the effects on the plaintiff; (3) the plaintiffs mental distress was extreme and severe; and (4) -there is a causal connection between the defendant’s conduct and the plaintiffs distress. Trujillo v. Rio Arriba Elec. Coop., 2002-NMSC-004, ¶ 25, 131 N.M. 607, 41 P.3d 333. Conduct that is actionable under this tort must be so extreme in d