Hunt v. Central Consolidated School District

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendants’ Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity, filed October 15, 2012 (Doc. 27)(“Motion to Dismiss”). The Court held a hearing on January 31, 2013. The primary issues are: (i) whether Defendant Central Consolidated School District (“CCSD”) is an improper party, because the CCSD School Board only, not the CCSD, can sue and be sued under New Mexico Law; (ii) whether Plaintiffs Jeffrey Hunt’s and Alice Ulibarri’s Second Amended Complaint for Damages and Declaratory Judgment, filed September 12, 2012 (Doc. 24)(“Complaint”), asserts any claims based on Hunt’s alleged disability; (iii) whether the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (“FMLA”), permits the CCSD to require the Plaintiffs to use their FMLA leave concurrently with their paid sick leavé; (iv) whether the Plaintiffs state a claim pursuant to 42 U.S.C. § 1983 against the CCSD, because the Complaint makes plausible that a CCSD policy or custom was the moving force behind an equal-protection violation when CCSD, as part of a pretextual CCSD restructuring, reassigned the Plaintiffs because they are Mormon or Anglo; (v) whether the individual Defendants are plausibly liable under 42 U.S.C. § 1985 (3) for conspiring to violate the Plaintiffs’ Equal Protection Clause rights by discriminating against them because of their race or religion; (vi) whether the CCSD, and Defendants Ed Marquez, Don Levinski, and Nancy Frazzini, are plausibly liable under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-17 (“Title VII”), based on *1147 theories of disparate impact or treatment, retaliation, hostile work environment, or constructive termination, because they disr criminated against the Plaintiffs based on their race or religion; (vii) whether the CCSD is liable for breach of contract, and for the breach of the covenant of good faith and fair dealing, because it breached the Plaintiffs’ employment contracts by allegedly demoting them because of their race or religion; (viii) whether the CCSD is liable for any alleged torts, including common-law conspiracy, tortious interference with contract, and negligent operation of a school building, because the factual allegations make plausible that the CCSD caused the Plaintiffs physical damage; (ix) whether the CCSD is liable to the Plaintiffs under the New Mexico Fraud Against Taxpayers Act, N.M.S.A.1978, §§ 44-9-1 to -14 (“FATA”), because the FATA waives New Mexico’s sovereign immunity, and because the Defendants plausibly violated the FATA; and (x) whether the alleged pretextual demotion by the CCSD, Frazzini, Marquez, and Levinski plausibly subjects them to liability under the New Mexico Human Rights Act, N.M.S.A.1978, §§ 28-1-1 to -14 (“NMHRA”). The Court will grant in part and deny in part the Motion to Dismiss. The Court will dismiss Counts V, VI, VII, and IX, but will not dismiss Counts I, II, III, IV, VIII, or X. The Court concludes that CCSD is a proper party, and will not dismiss any claims against the CCSD or require the Plaintiffs to amend their Complaint to allege their claims against the CCSD School Board. Second, the Court concludes that there are no plausible disability claims alleged in the Complaint in any form, and that none of the causes of action are based upon Hunt’s alleged disability. Third, the FMLA permits the CCSD, in accordance with their policies, to require the Plaintiffs to take their paid leave concurrently with their FMLA leave. In relation to the federal causes of action, the Court concludes that the Plaintiffs plausibly state that, on the disparate-treatment discrimination basis only, the CCSD violated Title VII by demoting them because of Mormon religion. Similarly, the Court concludes that the § 1983 claim against the CCSD and § 1985(3) claim against all' Defendants based -on anti-Mormon discrimination is also plausible. The Court will, dismiss Counts VI, and VII, and IX — the tortiousinterference claim, the common-law-conspiracy claim, and the negligent-building-operation claim — because they sound in tort and, based on the Plaintiffs’ allegations, the State of New Mexico has not waived tort immunity for these claims. The Court will also dismiss the FATA claim in Count V, because the Plaintiffs’ allegations do not plausibly show that FATA entitles them to relief. The Court will allow the Plaintiffs’ NMHRA claim, like their Title VII, to proceed only on the disparate-treatment discrimination basis. Because the Court believes that the Plaintiffs can cure technical errors in their Complaint to allege plausible claims to the extent that they are based on Anglo discrimination, the Court will grant the Plaintiffs leave to amend the Complaint to make those amendments. - . ,

FACTUAL BACKGROUND

For purposes of the Motion to Dismiss, the Court and the Defendants take the Plaintiffs’ allegations in the Complaint as true. The Defendants reserve the right, however, to challenge the veracity of the Plaintiffs’ allegations. See Motion to Dismiss at 2 n. 4.

This case involves an employment dispute arising out of an administrative restructuring of CCSD, which is located in northwestern New Mexico, in San Juan County. See Complaint ¶ 3, at 2. Both Hunt and Ulibarri are Anglo and Mormon. *1148 See Complaint ¶¶ 1-2, at 1-2. Defendant Phil Kasper is the CCSD Director of Human Resources. 1 See Complaint ¶ 10, at 8-9. The CCSD Board President is Matthew Tso. See Complaint ¶ 7, at 5; Defendant Scott Nicolay was a CCSD employee and Tso’s campaign manager. See Complaint ¶ 9, at 7-8. Defendant Hoskie Benally , is a CCSD Board member. See Complaint ¶ 8, at 6.

Both Plaintiffs signed a one-year employment contract in July 2011. See Complaint ¶ 38, at 23. Hunt and Ulibarri were supervisory employees for the CCSD in July 2011, when they learned of the restructuring and that they were to be reassigned to different positions as a result of the restructuring. See Complaint ¶ 17, at 12-13. Hunt alleges that Defendants Acting Superintendent Don Levinski and Acting Operations Director Ed Marquez told him that he was to be reassigned from the position of Transportation Director to that of Transportation Coordinator. See Complaint ¶¶ 4-5, at 2-4; id. ¶¶ 16-17, at 12-13. For disciplinary reasons, he was then assigned tó a Grounds Maintenance worker position. See Complaint ¶ 17, at 12-13.

As to Frazzini, the CCSD Human Resources Director, the Plaintiffs allege that “no one wanted to tell Plaintiff Ulibarri of the demotion, and that Defendant Frazzini had been selected to do so over her objection.” Complaint ¶ 30, at 19. Frazzini told Ulibarri that her job as Custodial Supervisor was to be eliminated. See Complaint ¶ 30, at 19. Even though they were being assigned to different positions, their salaries would not be reduced for the duration of their current contract term. See Complaint ¶¶ 17, 30, at 12-13, 19-20. The Defendants allege that the CCSD restructuring disproportionately affected Mormon and Anglo supervisors. Out of ten director positions which were downgraded, four were held by Anglo Mormons, one by an American Indian Mormon, four by non-Mormon Anglos, and one by a non-Mormon Hispanic. See Complaint ¶ 18, at 13.

Hunt initially wanted to work in his newly assigned position, but changed his mind, because he was concerned about the physical stress negatively affecting his diabetes and neuropathy. See Complaint ¶¶ 19-20, at 13-14. He was concerned about the risks to his health that the “extremely physical position” caused, and believed that he was inexperienced and lacked training. Complaint ¶¶ 20, at 13-14. Immediately after the July 2011 meeting, Hunt took sick leave, never returning to work, because of stress related to the new job and his concerns about safety. See Complaint ¶20, at 14. Voicing his concerns about his position to Frazzini, Frazzini and Marquez told Hunt to take his accrued sick leave concurrently with his leave under the FMLA. See Complaint ¶¶ 21-22, at 14-15. Hunt contends that this requést was wrongful and deprived him of his accrued sick leave. See Complaint ¶¶ 21-22, at 14-15. Additionally, Hunt alleges, in paragraphs 24 and 25 of the Complaint, that on September 15, 2011, he informed the CCSD that he was entitled to “reasonable accommodation” and, on October 20, 2011, wrote again, asking that a reasonable accommodation negotiation be held. Complaint ¶¶ 24-25, at 15-16. Hunt resigned on February 24, 2012, without returning to work. See Complaint ¶¶ 27-28, at 17-18.

After Frazzini notified Ulibarri that she was being reassigned from Custodial Supervisor, but before being assigned a per *1149 manent position, Ulibarri worked at temporary jobs with the CCSD. See Complaint ¶¶ 29-30, 33-34, at 18-19, 20-21. After learning of her job reassignments, Ulibarri told Frazzini that she needed extensive dental surgery. See Complaint ¶ 33, at 20. They discussed Ulibarri taking sick and FMLA leave; during this discussion, Frazzini suggested that Ulibarri could take leave and then retire. See Complaint ¶ 33, at 20-21. Frazzini, and subsequently Marquez, told Ulibarri that she had to use her sick leave and FMLA leave concurrently, and that she could use only sixty days of her accrued sick leave. See Complaint ¶ 33, at 20-21. Ulibarri was assigned to a permanent position as Payroll and Housing Clerk about three or four months after learning of the restructuring. See Complaint ¶¶ 30, 33-34, at 19, 20-21. Ulibarri resigned effective February 24, 2012. See Complaint ¶¶ 34, 37, at 21, 23.

At some point before August 19, 2011, the Farmington Daily Times news blog published anonymous, online comments disparaging and threatening Mormons; some of the persons commenting alleged that they were responsible for actions that the CCSD took against the Mormons. See Complaint ¶ 43, at 27-28. “One blog post even stated that white, Mormon administrators were being reassigned to positions ‘less damaging’, and that blog was posted before the plaintiffs’ demotions occurred.” Complaint ¶ 43(a), at 27. The Plaintiffs believe that “higher-levels CCSD, employees,” Tso and Nieolay, made “some” of the comments. Complaint ¶ 43, at 28. See id. ¶ 7(j), at 6; id. ¶ 9(j), at 8.

PROCEDURAL BACKGROUND

The Plaintiffs filed their Complaint on September 19, 2012. The forty-five page Complaint includes 109 numbered paragraphs, alleging, in essence, that- the CCSD, a large rural school district, was restructured to discriminate against the Plaintiffs because of their Anglo race and Mormon religion. The Plaintiffs bring suit based on the restructuring, arguing that the CCSD and the individual Defendants conspired to demote them and push them out of their jobs, failed to investigate their complaints, deprived them of due process, failed to “come forward and renounce the conspiracy, and constructively terminated both Plaintiffs because of their national origin, disability, and religion.” E.g., Complaint ¶ 4, at 3. The Plaintiffs contend that these events are the basis for ten counts: (i) Breach of Contract; (ii) Breach of the Covenant of Good Faith and Fair Dealing; (iii) Section 1983 violations; (iv) Section 1985(3) violations; (v) Violation of the FATA; (vi) Tortious Interference with Contract and Perspective Contractual Relations; (vii) Common-law conspiracy; (viii) Violations of the New Mexico Human Rights Act; (ix) Negligent Maintenance and Operation of a School Building; (x) Violation- of Title VII. Count III, alleging an equal-protection violation against the CCSD, also includes the allegation that the CCSD discriminated against Hurt on the basis of his “disability.” Complaint ¶ 59, at 32. Despite references in the Complaint to FMLA leave, alleged disabilities, and requests for accommodations, however, the Plaintiffs do not assert a claim under the FMLA or any statute prohibiting discrimination.

The vast majority of the allegations reference the “Defendants” generally. Paragraph 13 provides: “Whenever in this complaint reference is made to ‘Defendants, and each of them,’ such allegations shall be deemed to mean the act of Defendants acting individually, jointly, and/or severally.” Complaint ¶ 13, at 13. In the factual allegations, however, while the Plaintiffs specifically allege Frazzini’s and Marquez’ conduct in discussing the Plaintiffs’ leave time, the Complaint lacks any *1150 reference to any of Benally’s, Tso’s, Nicolay’s, or Kasper’s specific actions in the factual allegations. Instead, the Complaint recites a similar factual allegation for each individual Defendant, alleging that, “upon information and belief,” the particular Defendant “knowingly participated” in numerous generic wrongful acts, such as religion and racial discrimination, conspiracy, and denial of due process. In relation to Tso, for example, the Plaintiffs’ recitation is as follows:

Plaintiffs, upon information and belief, allege that Defendant Tso is an individual who at all material times was a resident of the State of New Mexico.... Defendant Tso is alleged to have knowingly participated in:

a) the discriminatory restructuring;

b) the denial of plaintiffs’ due process and contractual rights to a grievance procedure;

c) the efforts to push the Plaintiffs out of their jobs related to the extra demotion of Plaintiff Hunt and the failure to provide Plaintiff Ulibarri with replacement positions;

d) the failure to provide required accommodation and a required accommodation negotiation to Plaintiff Hunt;

e) the fraudulent attempt to deny Plaintiffs’ sick leave and to alter their Family Medical Leave Act rights;

f) the failure to investigate Plaintiffs [sic] complaints of discrimination, retaliation and fraud;

g) an agreement among the Defendants to terminate Plaintiffs’ employment and/or eliminate any supervisory authority of the Plaintiffs because of the discriminatory attitudes of the CCSD Board, themselves and the other individual defendants;

h) the failure to come forward, and renounce the involved conspiracy;

i) the constructive termination of the Plaintiffs due to all of the above;

j) other discriminatory and retaliatory acts to be designated later following discovery.

Complaint ¶ 7, at 5-6. The Complaint contains no specific allegations what each Defendant did to engage in such wrongful acts.

Although the Plaintiffs state that their contracts “explicitly make CCSD’s policy manual part of the involved contract ... and the involved policies are attached hereto and included by reference,” they did not attach any of the policies. Complaint ¶ 38, at 23-24. Additionally, they allege that specific letters, which the Plaintiffs sent to the CCSD, provided notice of “discrimination, retaliation, and harassment,” but did not attach the letters. Complaint ¶ 43, at 27-28. The Plaintiffs request “compensatory damages for all Counts, punitive damages, double damages and reasonable attorney fees, together with prejudgment interest, post judgment interests, costs, declaratory judgment declaring any contract provisions (specifically including Board Policies) that limit employee due process rights unconstitutionally unconstitutional [sic], and such further relief as the Court deems proper.” Complaint at 45.

The Defendants filed their Motion to Dismiss on October 15, 2012, requesting that the Court grant the individual Defendants qualified immunity on all federal civil rights claims brought against them in their individual capacities under 42 U.S.C. §§ 1983 and 1985, dismiss the Title VII claims against the individuals, and dismiss the Complaint with prejudice. See Motion to Dismiss at 1. The Defendants contend that the Complaint is deficient under rule 12(b)(6) of the Federal Rules of Civil Procedure, because the Plaintiffs do not assert a plausible claim for relief for the federal *1151 and state violations in the Complaint. In addition, the Defendants contend that the individual Defendants are entitled to qualified immunity for the claims asserted in Counts III, IV, and X, and that the doctrine of sovereign immunity bars Counts V, VI, VII, and IX. The Defendants request that the Court exercise its discretion and decline to entertain the unnumbered claim for declaratory judgments: Finally, the Defendants contend that any implied violations of the FMLA or any statute prohibiting disability-based discrimination lack a sound basis in . the facts as a matter of law. See Motion to Dismiss at 1-2.

The Defendants discuss first the Plaintiffs’ federal claims: Counts III, IV, and X. They assert that the § 1983 allegation in Count III “contains an ambiguity regarding Count III which must be addressed ...: The caption of Count III indicates that it pertains to ‘the CCSD Defendant Only (Not the Individuals).’” Motion to Dismiss at 8-9. The Defendants contend that the title creates the ambiguity, as the paragraphs within Count III “refer to the ‘actions of the Defendants,’ ‘the actions of the Defendants listed above,’ and the ‘actions of the CCSD,’ suggesting that Plaintiffs intend Count III to have broader applicability than the caption would suggest.” Motion to Dismiss at 9 (internal citations omitted)(quoting Complaint ¶¶ 58-59, at 32). They assert that this ambiguity “highlights yet again the fundamental problem with the Complaint: It rarely, if ever, identifies specifically ‘who did what to whom’ and thereby fails to contain an actionable cause of action under the United States Constitution.” Motion to Dismiss at 9. The Defendants also contend that the Plaintiffs fail to state a claim against the CCSD,

because a municipal agency “is hable only when the official policy is the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and deprivation of federal rights.”

Motion to Dismiss at 9 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.1998)). They assert that the Plaintiffs do not identify any unconstitutional policy or practice, do not plead factual allegations that could support the conclusion that a policy or practice of discrimination exists, and fail to include any allegations that “could establish the requisite direct causal link between the unconstitutional policy or practice and any constitutional injuries suffered.” Motion to Dismiss at 10.

The Defendants also , argue that Claim II fails to state a claim against the individual Defendants, either in their individual capacities or in their official capacities. First, they assert that the pleading is not sufficient regardless whether the Equal Protection Clause violation in Claim III is alleged against the Defendants in either capacity, because the “Plaintiffs never specify ‘who’-did ‘what,’, [sic] and they fail to ‘make -a threshold showing that they were treated differently than others who were similarly situated to them.” Motion to Dismiss at 10 (quoting Barney v. Pulsipher, 143 F.3d at 1312 ). They assert that, if the Plaintiffs’ allegations in Claim III are against the individual Defendants in their official capacities, there are insufficient allegations to state a claim under “the Monell standard.” Motion to Dismiss at 10-11 (quoting Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)). On the other hand, they assert, the allegations also fail to state a claim against the individual Defendants in their individual capacities, because “[n]one of the allegations show any individual Defendant’s personal participation in an equal protection or oth *1152 er constitutional violation.” Motion to Dismiss at 11-12 (citing Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996); Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.2008)). The Defendants contend that the Plaintiffs’ failure to plead who did what to whom makes it “difficult to discern whether Plaintiffs allege that they were treated differently from others affected by restructuring or whether they alleged that all affected employees have an equal protection claim.” Motion to Dismiss at 12 (emphasis in original). The Defendants also argue that, beyond the equal-protection claim based on the Plaintiffs’ race or religion, “Hunt’s allegation that he has an additional basis for relief under § 1983 for ‘disability discrimination’ is equally unsupportable.” Motion to Dismiss at 12. They contend that, notwithstanding the Plaintiffs’ failure to plead how the Defendants’ actions in requiring Hunt to take his FMLA concurrently with his sick leave, allowable under FMLA, applied differently to him than other members of some unidentified class, “these still would not amount to a constitutional violation because the Equal Protection Clause of the U.S. Constitution does not prohibit discrimination on the basis of disability.” Motion to Dismiss at 12 (citing Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001); Guttman v. Khalsa, 669 F.3d 1101 (10th Cir.2012)). The Defendants additionally contend that the Plaintiffs fail to allege any injury, as they concede that their employment continued for the remainder of their contract terms and that their pay remained the same. See Motion to Dismiss at 13. The Defendants assert that these concessions “nullify Plaintiffs’ claims that they were discriminated against or that they experienced an unlawful hostile workplace,” regardless whether pursued as a § 1983 claim, § 1985(3) claim, Title VII claim, or a claim under the NMHRA. Motion to Dismiss at 13 (citing Gerald v. Locksley, 785 F.Supp.2d 1074, 1107 (D.N.M.2011) (Browning J.); Cates v. Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002 , 124 N.M. 633 , 954 P.2d 65 ). They argue: “Although these claims imply that Plaintiffs were disappointed by their new assignments and potentially Concerned about the possibility of a cut in pay in the future, neither disappointment nor speculative concerns about pay cuts constitute an unlawfully hostile work environment amounting to a constructive termination.” Motion to Dismiss at 4.

In relation to the § 1985(3) claim that the Plaintiffs allege in Count IV, the Defendants contend that § 1985(3) applies only to “‘class-based or racially discriminatory animus,”’ and thus cannot, as a matter of law, apply to religious discrimination or disability discrimination. Motion to Dismiss at 15 (quoting Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.1994)). They contend that, even if Anglos are a protected class, the Court should still dismiss Count IV, because the Plaintiffs do not plead sufficient facts to state a claim for conspiracy: “At best, Plaintiffs offer conclusory allegations that the Defendants entered into ‘an agreement to eliminate Mormon and/or Anglo supervisors, and [took] specific actions in furtherance of the conspiracy.’ ” Motion to Dismiss at 15 (alteration in original)(quoting Complaint ¶ 66, at 15). The Defendants assert, however, that these specific actions are not alleged in the Complaint, neither are factual allegations about any Defendant entering into an agreement, nor are there any factual allegations about any acts that any Defendants took in furtherance of the conspiracy. See Motion to Dismiss at 15-16. According to the Defendants:

In fact, the Complaint contains no factual. allegations to support Plaintiffs’ assertion that the restructuring was the *1153 result of a conspiracy to discriminate against Anglos. Plaintiffs do not allege facts that would support their conclusion that any defendant had discriminatory animus. Plaintiffs allege that their right to equal protection was violated by this alleged conspiracy, [Complaint, ¶ 61, at 32], but even that is a conclusion without factual or legal support. As to allegations of conspiracy, no facts plead could establish the existence of a conspiracy, no stated facts indicate what was done in furtherance of the alleged conspiracy, or by whom such actions were taken and there are no allegations regarding the treatment of others similarly situated.

Motion to Dismiss at 16. The Defendants assert that the intracorporate conspiracy doctrine also bars the Plaintiffs’ § 1985(3) allegation, asserting that “ ‘the officers, agents, and employees of a single corporate entity, each acting within the scope of [their] employment, are legally incapable of conspiring together.’ ” Motion to Dismiss at 17 (alteration in original)(quoting Whitehurst v. 230 Fifth, Inc., No. 11 Civ. 0767(CM), 2011 WL 3163495 (S.D.N.Y. July 26, 2011)).

The Defendants point out that the Plaintiffs allege that the CCSD, Levinski, Marquez, and Frazzini violated Title VII, but assert that Title VII does not apply to Levinski, Marquez, and Frazzini, “because they are not the Defendants? ‘employer.’ ” Motion to Dismiss at 17 (quoting Ball v. Renner, 54 F.3d 664, 668 (10th Cir.1995)). The Defendants assert that, to prove a Title VII violation, the Plaintiffs must provide either

“direct evidence of discrimination or ... follow [] the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove a prima facie case of discrimination. To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so,' the burden then shifts back to the plaintiff to show that the plaintiffs protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext.”

Motion to Dismiss at 18 (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.2012)). They contend that the Plaintiffs fail to adequately plead a prima facie case, as the Complaint lacks factual allegations to support the conclusion that discrimination occurred, because the Plaintiffs do not allege any adverse employment action or that they were treated less favorably than others affected by the restructuring who were not Mormon or Anglo. See Motion to Dismiss at 18. The Defendants argue that, although monetary loss is not required to find an adverse employment action, “the Plaintiffs’ allegations simply do not rise to the level of materiality required to constitute an adverse employment action.” Motion to Dismiss at 19 (citing Gerald v. Locksley, 785 F.Supp.2d at 1100 ).

In regard to disparate treatment and impact, the Defendants argue that the Complaint is insufficient to state a prima facie case, because, although the Plaintiffs allege that five out of ten positions downgraded were Mormon, they do not allege the other- five directors’ religion, and thus cannot show that Mormons were treated differently than any other religion. See *1154 Motion to Dismiss at 19-20. The Defendants assert that, additionally, although eight out of the ten directors allegedly downgraded were Anglo, the Defendants have not alleged that Anglo is a protected class, nor have they alleged generally that Anglos were demoted over Native Americans or Hispanics. See Motion to Dismiss at 20. The Defendants also argue that the Court should dismiss the Plaintiffs’ hostile-work-environment allegations, because the Plaintiffs do not plead factual allegations sufficient to demonstrate that “the workplace was permeated with discriminatory intimidation, ridicule, and insult, such that the workplace was abusive.” Motion to Dismiss at 20 (citing Morris v. City of Colo. Springs, 666 F.3d 654, 666 (10th Cir.2012)). The Defendants contend that the only allegations which may rise to the level of facilitating a hostile work place are the hate-speech blog comments, over which the Defendants contend they had no control, and that “the only tenuous linkage to the workplace is the conclusory allegations that it ‘seems clear’ that CCSD employees were involved and that there is ‘a lot’ of gossip, without stating why these accusations are plausible.” Motion to Dismiss at 21. As to the Plaintiffs’ Title VII retaliation claims, the Defendants argue that the allegations cannot, as a matter of law, succeed, because “the only actions that might qualify as protected opposition to discrimination took place after the restructuring and after the issues regarding sick leave and FMLA leave emerged.” Motion to Dismiss at 22 (emphasis in original).

The individual Defendants argue that they are entitled to qualified immunity on the Plaintiffs’ § 1983 and § 1985(3) claims, because, “[ajlthough Plaintiffs contend that their rights were violated as a result of the administrative restructuring and employment leave disputes (based on the FMLA and unspecified rights to be free from disability discrimination), they assert no clearly established constitutional or statutory violation.” Motion to Dismiss at 24. The Defendants assert:

Plaintiffs do not allege what each individual did 'to violate any clearly established right. Even if Defendants Frazzini, Levinski, and Marquez misinterpreted district policy regarding the interplay among an employee’s accrued sick leave, FMLA, and other statutes, absent proof of racially or religiously based animus, such a mistake does not constitute an equal protection violation or a conspiracy to violate the Equal Protection Clause.

Motion to Dismiss at 24.

In relation to the Plaintiffs’ state-law claims, the Defendants argue that, of the seven' claims, the Court should dismiss four under the New Mexico Tort Claims Act, N.M.S.A.1978, §§ 41-4-1 to -30 (“NMTCA”), because the New Mexico Legislature has not waived the CCSD’s sovereign immunity, and the Court should dismiss the other three, as the Plaintiffs fail to allege a cause of action. See Motion to Dismiss at 25. The Defendants assert that sovereign immunity bars the fraud-against-taxpayers, conspiracy, and tortious-interference ‘claims that the Plaintiffs assert against the CCSD, and thus bars the Plaintiffs’ Counts V, VI, and VII. See Motion to Dismiss at 25-26. The Defendants point out that public entities and employees are immune from tort liability except as waived in the NMTCA, and the Plaintiffs have not pled, and cannot identify, any applicable waiver for their tort claims. See Motion to Dismiss at 26. In regard to the Plaintiffs’ fraud-against-taxpayer claim, which the Defendants assert is premised on the Defendants’ harassment, demotion, and commission of fraud against the Plaintiffs for their discrimination complaints, the Defendants contend *1155 that, “[e]ven if this theory made sense ... FATA does not include an express waiver of sovereign immunity.” Motion to Dismiss at 27 (citing Martinez v. Kaune Corp., 106 N.M. 489, 491 , 745 P.2d 714, 716 (1987), overruled on other grounds by Bober v. N.M. State Fair, 111 N.M. 644 , 808 P.2d 614 (1991)). Similarly, the Defendants assert that sovereign immunity bars the Plaintiffs’ claim for tortious interference with contract. See Motion to Dismiss at 26-27 (citing El Dorado Utilities, Inc. v. Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, ¶ 25 , 137 N.M. 217 , 109 P.3d 305 ). The Defendants also contend-that sovereign immunity bars the Plaintiffs’ common-law conspiracy claim, because there is no waiver for conspiracy claims, and contend that the “Plaintiffs cannot argue that Defendants’ actions were outside the scope of their duty.... The TCA ‘clearly contemplates including employees who abuse their officially authorized duties, even to the extent of some tortious and criminal activity.’ ” Motion to Dismiss at 28 (quoting Celaya v. Hall, 2004-NMSC-005, ¶ 25 , 135 N.M. 115 , 85 P.3d 239 ).

The Defendants argue that, although the NMTCA waives sovereign immunity “for ‘damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in operation of maintenance of any building,” the waiver does not apply. Motion to Dismiss at 29 (quoting N.M.S.A. 1978, § 41-4-6(A)). They assert that the waiver does not apply, because the “Plaintiffs do not allege that the general public was placed at risk, as required for the waiver to apply.” Motion to Dismiss at 29 (quoting Wright v. Bd. of Educ. for the Las Cruces Pub. Sch., No. 12-1305 BB/CG, slip op. at 4 (D.N.M. Sept. 13, 2012) (Black, J.)). According to the Defendants, even if the Plaintiffs alleged that the Mormons or Anglos were at risk, which the Defendants assert the Plaintiffs do not factually allege, “the damages that allegedly flow from that hypothetical risk could not result from bodily injury,” as “[b]odily injury ‘unambiguously exclude[es] emotional injury.’ ” Motion to Dismiss at 29 (quoting Hart v. State Farm Mut. Ins. Co., 2008-NMCA-132, ¶ 10 , 145 N.M. 18 , 193 P.3d 565 ; Econ. Preferred Ins. Co. v. Jia, 2004-NMCA-076, ¶ 8 , 135 N.M. 706 , 92 P.3d 1280 ). The Defendants contend that, to the extent that any of the Plaintiffs’ claims sound in' contract, sovereign immunity bars those claims, because “ ‘[gjovernmental entities are granted immunity from actions based on contract, except actions based on a valid written contract,’ ” which the Plaintiffs have not alleged. Motion to Dismiss at 30 (quoting N.M.S.A.1978, § 37-1-23).

The Defendants also argue that the Plaintiffs’ state-law claims, substantively, fail to state a claim upon which the Court can grant relief. As to Count I, the Plaintiffs’ breach-of-contract claim, the Defendants assert that, although breach of contract is a question of fact, it may be addressed at the motion-to-dismiss stage in this case, based on the contracts’ plain language. See Motion to Dismiss at 31.

[Tjhere was no breach because the plain language of the employment contracts shows that the Superintendent (Levinski) had the contractual right to specify the Plaintiffs’ duties. Plaintiff Ulibarri’s contract, for example, provides that “the employee shall present himself/herself for duty at such times and places as designated by the Superintendent 'or his or her authorized designee.” Similarly, Plaintiff Hunt’s contract provides that he “shall ..., administer the duties assigned by the Superintendent.” Both Hunt’s and Ulibarri’s contracts unambiguously incorporate the policies of the *1156 CCSD, which make clear that “[t]he Superintendent will determine all support staff assignments. Such assignments shall be based on the needs of the District” and that “[t]he transfer of support staff members will be based on the needs of the District. Assignments maybe changed to serve the best interests of the District.” .... Neither the restructuring nor the reassignments can be a breach of contract.

Motion to Dismiss at 31 (internal citations omitted). The Defendants contend that the Plaintiffs’ breach claim based on the Defendants’ failure to investigate “is equally meritless,” because their contract required them to file a complaint with the CCSD School Board, which the Plaintiffs did not do. Motion to Dismiss at 32 (citing Lucero v. Bd. of Regents of Univ. of N.M., 2012-NMCA-055 , ¶ 16, 278 P.3d 1043 , certiorari denied, 293 P.3d 886 (N.M. Apr. 20, 2012)). According to the Defendants, the Plaintiffs do not allege that they incurred any lost wages or benefits as a result of the alleged breach of contract, and the claims therefore fail as a matter of law, as there are no damages. See Motion to Dismiss at 32-33. Similarly, with respect to the Plaintiffs’ claim alleging that the Defendants breached the covenant of good faith and fair dealing, the Defendants assert that, beyond failing to allege any damages, the Plaintiffs have not alleged any facts to support the conclusion that the Defendants committed an act that “ ‘will injure the rights of the other to receive the benefit of their agreement.’” Motion to Dismiss at 33-34 (quoting Henning v. Rounds, 2007-NMCA-139 , 142 N.M. 803 , 171 P.3d 317 ).

The Defendants contend that the Plaintiffs’ Count V — alleging fraud against taxpayers under the FATA — fails to state a claim, because, while the Plaintiffs may provide factual support for an inference that the Defendants’ actions defrauded them, a claim under the FATA requires allegations of fraud against the state. See Motion to Dismiss at 34. The Defendants thus assert that the “FATA simply does not apply.” Motion to Dismiss at 34. They contend that, even if it were possible to construe any of the Plaintiffs’ claims as alleging fraud against the state, “[b]ecause the [] [Defendants’] complaints followed [any] so-called ‘retaliatory’ events, Plaintiffs cannot state a prima facie case for retaliation under FATA.” Motion to Dismiss at 35. The Defendants argue that the Plaintiffs’ FATA claim also fails on the grounds that they failed to comply with the required prerequisites for bringing a FATA claim. See Motion to Dismiss at 35-36.

On substantive grounds, the Defendants argue that the Court should dismiss the Plaintiffs’ tortious-interferencewith-contract claim, because the Plaintiffs’ allegations that the Defendants “played a ‘substantial, active part in securing the unilateral breaches’ of their employment contract with CCSD____are only formulaic conclusions unsupported by allegations of fact describing the alleged role the Defendants played in securing the ‘breach’ of Plaintiffs’ contracts.” Motion to Dismiss at 36 (citing Ettenson v. Burke, 2001-NMCA-003, ¶ 14 , 130 N.M. 67 , 17 P.3d 440 ). The Defendants also argue that the Court should dismiss the Plaintiffs’ common-law conspiracy claim in Count VII, because, “[consistent with the rest of the [Complaint], Plaintiffs fail to plead any allegations of fact that support their conclusion that a conspiracy existed.... Plaintiffs have not and cannot identify any ‘independent, unlawful act that causes harm.’ ” Motion to Dismiss at 36-37 (quoting Ettenson v. Burke, 2001-NMCA-003, ¶ 12 , 130 N.M. 67 , 17 P.3d 440 ).

*1157 As to the Plaintiffs’ NMHRA claim alleged in Count VIII, the Defendants first assert that the Plaintiffs did not follow proper procedures. In relation to Tso, Benally, and Nicolay, the Defendants point out that the Plaintiffs did not charge these Defendants before the Human Rights Commission and that to the extent the claim is alleged against those defendants, the Court must dismiss it. See Motion to Dismiss at 37 n. 25. In relation to CCSD, Levinski, Marquez, and Frazzini, the Defendants contend that the Plaintiffs failed to file a notice of appeal from the Notices of Non-Determination from the Human Rights Bureau (“HRB”) and, therefore, the Court should dismiss the NMHRA claim. 2 Motion to Dismiss at 37-38. The Defendants point out that Plaintiffs’ claims are at least partially, if not totally, based on 2010 events, which they assert “[t]o the extent these claims are based on discrete acts ... they are limited by the 300-day limitation period in the HRA.” Motion to Dismiss at 38 (citing N.M.S.A.1978, § 28-1-10(A); Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC-009, ¶ 11 , 139 N.M. 193 , 131 P.3d 43 ).

The Defendants assert that the Plaintiffs do not state a claim for disparate impact and treatment, because they do not identify a specific employment practice or policy which caused a significant disparate impact on a protected group, and they do not allege how the administrative restricting had a disparate impact on Anglos and Mormons. See Motion to Dismiss at 39 (citing Gonzales v. N.M. Dept. of Health, 2000-NMSC-029 , ¶ 30, 129 N.M. 586 , 11 P.3d 550 ). The Defendants also assert that the Plaintiffs have failed to state a claim for retaliation, because “[a]s explained in the discussions of Title VII and FATA, all of the allegedly adverse actions occurred before any protected activity by Plaintiffs.” Motion to Dismiss at 39 (emphasis in original)(citing Juneau v. Intel Corp., 2006-NMSC-002, ¶ 11 , 139 N.M. 12 , 127 P.3d 548 ). The Defendants argue that the Plaintiffs also fail to state a claim for hostile work environment and constructive termination. The Defendants assert that the inquiry is “ ‘not whether the working conditions were merely difficult or unpleasant, but whether Defendant made Plaintiffs’] working conditions so intolerable, when viewed objectively, that a reasonable person would be compelled to resign; essentially, that she had no other choice but to quit.’ ” Motion to Dismiss at 40 (alteration in original)(quoting Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 16 , 150 N.M. 17 , 256 P.3d 29 ). The Defendants contend that the *1158 Plaintiffs’ allegations fail to meet this standard, as, “[d]espite the change in their positions, Plaintiffs did not suffer a loss in pay. Accordingly, no reasonable person would feel compelled to resign under the circumstances, particularly when the national economic climate of 2010 and 2011 is taken into consideration.” Motion to Dismiss at 40. They assert that “the restructuring and work conditions at CCSD simply were not objectively intolerable such as to establish a plausible claim for a hostile work environment or constructive termination.” Motion to Dismiss at 41. The Defendants argue that the Plaintiffs’ Count IX — negligent maintenance of a school building pursuant to N.M.S.A.1978, § 41-4-6—fails to state a claim, because the Plaintiffs did not suffer any bodily injury, and none of the Defendants’ alleged practices or policies posed a risk of harm to the general public. See Motion to Dismiss at 41 (citing Econ. Preferred Ins. Co. v. Jia, 2004 NMCA-076, 135 N.M. 706 , 92 P.3d 1280 ).

The Defendants argue that the Court should dismiss any of the Plaintiffs’ claims for punitive damages based on Title VII or any state law against CCSD, or against the individual Defendants in their official capacities, because punitive damages are unavailable for these claims. See Motion to Dismiss at 41-42 (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981); N.M.S.A.1978, § 41-4-19(C)). The Defendants point out that the Plaintiffs appear to be requesting the Court to grant them declaratory judgment and “ ‘declar[e] any contract provisions (specifically including Board Policies) that limit employee due process rights unconstitutionally unconstitutional [sic].’ ” Motion to Dismiss at 42 (quoting Complaint at 45). The Defendants argue that the Court should “exercise its sound discretion to decline to entertain Plaintiffs’ declaratory judgment action,” because the Plaintiffs’ improperly pled the claim by failing to attach the alleged unconstitutional policy. Motion to Dismiss at 42. The Defendants also contend that the Court should decline to entertain the request, because the Plaintiffs cannot demonstrate a good chance of being injured in the future, as they are no longer CCSD employees. See Motion to Dismiss at 42-43 (quoting Barney v. Pulsipher, 143 F.3d at 1313 n. 3). Additionally, the Defendants assert that the Court should decline to grant declaratory judgment as to the Plaintiffs’ contention that the policy should outline a procedure for the CCSD’s alleged “ ‘takings of constitutional property,’ ” because there is an alternative at law which is better and more effective: a lawsuit for damages. Motion to Dismiss at 43 (citing State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir.1994)). For these reasons, the Defendants ask the Court to dismiss the Complaint in its entirety.

On November 19, 2012, the Plaintiffs filed their Response to Defendants’ Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity. See Doc. 32 (“Response”). The Plaintiffs assert that “[t]he Response will ... attempt to focus the Court’s attention on the actual words of the Complaint, and not the Motion’s characterizations of those words.” Response at 1. The Plaintiffs argue that, whereas the Defendants charge that the Plaintiffs’ factual allegations are conclusory and without support, “[a]ll allegations (in any Complaint) are conclusory to one extent or another because they are made without any evidence offered to support them.” Response at 4. According to the Plaintiffs, they

have gone to great pains to provide a complaint, containing conspiracy allegations with a great amount of detail, taking some 28 pages to provide the factual *1159 predicates of their claims, in an effort to provide the Court and Defendants full and fair notice of their claims herein.... Plaintiffs state affirmatively that they believe that any claim against any person for any act be “without prejudice’ so that Plaintiffs can continue to in good faith plead everything they believe they will be able to prove (when proving time arrives). Plaintiffs .insist that their claims are not just ‘plausible’ but likely, given the facts they have plead.

Motion to Dismiss at 4. The Plaintiffs argue that they have adequately pled a municipal liability claim against the CCSD, under “both a direct proof and McDonnell Douglas formulation case.” Motion to Dismiss at 4-5. The Plaintiffs refer the Court to paragraph 14 of their Complaint, asserting that, “[i]ndeed, the involved policy and many of the involved specific actions as well as the individuals who carried out the actions of CCSD are directly identified in this page-and-a-half long explanation of the policy, its confines, its function and its actions and the specifically relevant defendants.” Response at 6. They note: “[Tjhree of the named Defendants had little direct contact with Plaintiffs — Defendants Tso, Nicolay and Benally. Nevertheless, they are the prime movers of the explicit, blogged conspiracy to terminate Mormon/Anglo senior supervisors.” Response at 6-7 (citing Complaint ¶ 43, at 27-28). The Plaintiffs assert that their allegations about other CCSD’s previous complaints, while “not guaranteeing] the success of a claim against an employer,” is factual support for the existence of such a discriminatory policy. Response at 7-8. The Plaintiffs assert:

Benally’s involvement (as all of the Defendants [sic] conduct is) is disclosed in Paragraph 8, and Benally’s involvement in the direct employment problems addressed here is tangential, but/and Defendant Benally regularly worked on the School Board and participated directly in the harassment of Manning and Epperson by regularly attempting to secure an audit of his work as the District’s Finance Director through legislative and administrative meetings without any reasonable basis for the audit throughout 2010 and 2011, and with the offending audit turning up no mishandling of District funds. Defendant Benally is the first actor of the involved conspiracy, and was instrumental in securing the election of Tso, and is alleged to have participated in the planning and accomplishment of the goals of the conspiracy.

Response at 8. According to the Plaintiffs, “fa]ll of the named parties, as pled, are .responsible for the acts of the others because of the conspiracy, their true agreement to accomplish an illegal goal through mutual cooperation, and plaintiffs will subsequently prove the existence of the conspiracy.” Response at 8 (emphasis in original). Additionally, the Plaintiffs assert that the “Defendants seem to believe that the allegations of direct evidence and allegations fitting the McDonnell Douglas formulation of indirect proof are not enough to state claims.” Response at 9. The Plaintiffs assert that, whereas the Defendants repeatedly argue that the Plaintiffs have not adequately pled their Title VII or the NMITRA claims, because they do not allege that they were treated differently than similarly situated persons, “the ‘similarly-situated’ analysis is a related, alternative means of proof, and not strictly required in pleading. Plaintiffs have pled they can prove intentional discrimination and McDonnell Douglas formulation, and both or either suffice here.” Response at 9. They add: “If this pleading is insufficient, pursuant [to] the Court’s decision, a simple good faith amendment of the pleading will easily set it right.” Response at 9. *1160 The Plaintiffs contend that “nothing about N.M.S.A.1978, § 22-5-4(E) reflects any limitation upon suing a New Mexico School District directly, it merely gives local Boards of Education the ability to sue or be sued.” Response at 9 (citing Williams v. Cent. Consol. Sch. Dist., 1998-NMCA-006 , 124 N.M. 488 , 952 P.2d 978 ; Cent. Consol. Sch. Dist., No. 22 v. N.M. Env’t Dept., 123 N.M. 386 , 940 P.2d 1181 (1997) (table)). In'relation to the § 1983 municipal liability claim, the Plaintiffs contend that the” claim is properly-pled as the intentional proof and McDonnell Douglas formulations are both accepted pursuant to equal-protection claims. See Response at 10. The Plaintiffs state that they “are not attempting to sue the Individuals for Section 1983 claims.” Response at 12. The Plaintiffs note that “[t]he Section 1983 claim stated and pursued is against Defendant CCSD alone, and arises from the adoption of the motivating, clearly illegal policy.” Response at 12.

The Plaintiffs argue that the breach-of-contract claim is adequately pled, as the Superintendent of Schools does not have the presumptive right to cancel administrators’ contracts' without meeting certain conditions precedent, which the Plaintiffs assert that they explicitly alleged were not met here. See Response at 10-11 (citing Complaint ¶ 43, at 27-28). The Plaintiffs contend:

Over-riding ... is the fact that the involved contracts be interpreted and performed in accordance with State and Federal law, and Mormon/Anglo discrimination is not in accordance with the law. Thus, even if Defendants could prove the conditions precedent for the Superintendent’s cancellation of the involved contracts, and the Plaintiffs could prove that the actions were taken ... precisely because of discriminatory animus, the involved conditions precedent would not over-ride the prohibition of discrimination.

Response at 11. The Plaintiffs assert that, because Hunt could not physically work in the position which' the CCSD offered to him, never worked in the position, and because CCSD did not offer a reasonable accommodation, the CCSD constructively terminated him. See Response at 12-13 (quoting Complaint ¶¶ 27-28, at 17-18). The Plaintiffs assert that their Complaint adequately pleads the factors laid out in Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir.1998), for “a claim of bad faith failure to participate” in the accommodation process. Response at 14.

The Plaintiffs argue that Ulibarri’s constructive termination allegations are adequate, because she alleges that she was not given a reasonable replacement position for at least three months, she had been repeatedly urged to resign, her complaints were not investigated, previous complaints had not been investigated or remedied, her leave rights were “artificially curtailed,” she had watched all other Anglo/Mormon senior supervisors be terminated, demoted or forced to resign, her contract was repeatedly breached, and she gave the CCSD some six months to take remedial action. Response at 15-16 (citing Complaint ¶ 36, at 22-23). According to the Plaintiffs, the allegations contained in paragraph 36 of their Complaint also suffice to state a workplace harassment claim. See Response at 16-17 (citing Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 16 , 150 N.M. 17 , 256 P.3d 29 ). They also contend that the Defendants’ citation to 29 C.F.R. § 825.207 (A) for the proposition that employers are allowed to require employees to take leave under the FMLA concurrently with accrued paid leave is inaccurate, asserting: “Instead it states the opposite, ‘[g]enerally FMLA is unpaid leave.’ ” Response at 17 (quoting 29 C.F.R. § 825.207 (A)). They *1161 assert that the regulation leaves the substitution at the employee’s discretion, and the Plaintiffs never requested to use the FMLA leave instead of their accrued paid leave. See Response at 17 (citing Complaint ¶¶ 23-24, 27(f), 33-34, 36(e), at 15-16, 18, 20-22). The Defendants point out that the CCSD’s sick leave policy does not provide that the “CCSD or its:employees may require paid leave and FMLA run concurrently.” Response at 18 (citing Complaint ¶ 41, at 25-26). The Defendants “object to the oft-asserted characterization of their Complaint as not containing assertions of discriminatory animus,” and argue that discriminatory animus, “specifically Mormon/Anglo animus,” is repeatedly pled. Response at 18-19 (citing Complaint ¶¶ 14, 38, 45, 86, at 10, 23-24, 29, 28-29).

The Defendants contend that “a demotion and promised loss of pay is a materially adverse employment action pursuant [to] standing Tenth Circuit precedent.” Response at 19-21 (citing Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1279-80 (10th Cir.2010)). They contend that “it is ‘clear that the pled demotions, loss of prestige, promise of lost future pay, as well as their different treatment pursuant an already-discriminatory ‘restructuring,’ inducements to resign and threats of lost accrued leave suffice as adverse employment actions pursuant Plaintiffs’ discrimination and equal protection claims.” Response at 21 (citing Jones v. Oklahoma City Pub. Sch., 617 F.3d at 1279-80 ). Responding to the Defendants’ assertions that the Plaintiffs have no damages, the Plaintiffs state: “[A]ny an all argument that Plaintiffs were only subjected to ‘emotional distress’ or have only plead cognizable emotion distress claims with regards to the Title VII, NMHRA, Federal Equal Protection Clause claims and the State claims as well are unavailing.” Response at 22.

The Plaintiffs argue that their § 1985(3) claim is sufficiently pled, because race and religion discrimination is actionable under § 1985(3). See Response at 22-23. The Plaintiffs contend that they “have pled Mormon/Anglo discrimination throughout the Charge-filing and Federal Complaint process, and the discrimination is repeatedly referred to as racial and color discrimination therein,” and that “the Tenth Circuit has recognized religion as a basis for Section 1985 claims.” Response at 22 (citing Taylor v. Gilmartin, 686 F.2d 1346, 1360 (1982)).

The Plaintiffs also, argue that “[i]t is longstanding law in New Mexico that, the personnel manuals or personnel regulations of state agencies are implied-in-fact contracts which may be sued upon by terminated state employees, despite N.M.S.A. 1978, § 37-1-23, because the manual or regulations supply the necessary writing.” Response at 23 (citing Garcia v. Middle Rio Grande Conservancy Dist., 1996—NMSC-029, ¶¶ 15-17, 121 N.M. 728 , 918 P.2d 7 ). The Plaintiffs, assert that their Complaint alleges facts about the School Board regulations being part of the contract. They contend that the duty of good faith and fair dealing thus applies, and that, the Supreme Court of New Mexico has found that school boards are subject to liability for these implied contracts. See Response at 23-25 (citing Handmaker v. Henney, 1999-NMSC-043 , ¶ 19 n. 2, 128 N.M. 328 , 992 P.2d 879 ). According to the Plaintiffs, “[h]ere there is a written contract [in which the law implies a covenant of good faith and fair dealing], and that written contract allows suit pursuant [to] N.M.S.A.1978, § 37-1-23.” Response at 25.

The Plaintiffs argue: “Contrary to the Motion [to Dismiss], the FATA statute provides two distinct and separate claims: the first the FATA claim proper, the sec *1162 ond a general retaliation claim available to state employees, and a waiver of sovereign immunity.” Response at 25-26. They assert that the Defendants’ argument that the FATA should be interpreted parallel to the Federal False Claims Act, 31 U.S.C. §§ 3729-3733 (“FFCA”), misconstrues the law’s plain language and the legislature’s intent. Response at 27-29 (comparing 31 U.S.C. § 3730 (h)(1) with N.M.S.A.1978, § 44-9-11(B)).

The Plaintiffs additionally argue that “existing precedent compels this Court to recognize that a discriminatory and retaliatory conspiracy operating in a state building fits under N.M.S.A.1978, § 41-4-6’s tort claims waiver for operation of a building, and thus Plaintiffs’ claims sounding in tort should not be dismissed.” Response at 29. The Plaintiffs contend that they allege a conspiracy which “[u]nder existing precedent ... represents an unsafe, known condition in a public building for a specifically-identified group of the general public — any complaining ... employees — in violation of regulation or rules made or adopted by the State.” Response at 30. In relation to the requirement that “[t]he involved dangerous condition must present a danger to the public in general or a specific subset of the public,” the Plaintiffs contend that there was an “ongoing danger to Mormon/Anglo supervisors [that] was never addressed in any way.” Response at 31-32 (citing C.H. v. Los Lunas Sch. Bd. of Educ., 852 F.Supp.2d 1344, 1363-64 (D.N.M.2012) (Browning, J.)). The Plaintiffs finally respond to the Defendants’ contention that “the failure to designate the [administrative exhaustion allegations] as a ‘Notice of Appeal’ renders the NMHRA claim ineffective,” by asserting that the failure is de minimus, as it is reasonable to infer from the allegations that the Plaintiffs exhausted all their administrative remedies. Response at 34-35 (citing Complaint ¶¶ 26, 35, 39, at 16-17, 21-22, 24-25).

On, January 4, 2013, the Defendants filed the Defendants’ Reply in Support of Motion to Dismiss for Failure to State a Claim for Relief and/or Qualified and Sovereign Immunity. See Doc. 37 (“Reply”). The Defendants assert that the Plaintiffs’ Response “is as illuminating for what it does not address as for what it does address.” Reply at 1. According to the Defendants, the

Plaintiffs completely fail to address Defendants’ arguments that (1) Plaintiffs’ § 1985(3) claims against the individual defendants are barred by qualified immunity; (2) Title VII claims cannot be brought against individuals; (3) disability discrimination cannot be the basis for an equal protection claim; (4) they did not properly plead a “continuing violation” under Title VII or the New Mexico Human Rights Act; (5) they did not state a prima facie claim for common law conspiracy; (6) sovereign immunity bars their tortious interference with contract and common law conspiracy claims; (7) the timing of their complaints to agencies does not support the Fraud Against Taxpayers Act retaliation claim; and (8) there is judgment contained in the Second Amended Complaint. Accordingly, Counts V, VI and VII should be dismissed in their entirety with prejudice; all claims against the individual defendants contained in Count X should be dismissed with prejudice and the individual defendants should be granted qualified immunity on the § 1985 claims against them in their individual capacities.

Reply at 1-2. The Defendants also assert that the Court should dismiss the Plaintiffs’ other claims with prejudice, reiterating their argument that the Complaint “lacks the requisite factual specificity and *1163 fails to contain sufficient allegations to .... show that their claims are plausible.” Complaint at 2.

The Defendants argue that the CCSD is not a proper party to any of the claims, because a school district is á geographic area; “the correct entity defendant is the' Board of Education for the Central Consolidated Schools.” Reply at 3. They therefore assert: “CCSD should be dismissed from this case, as there is no authority for bringing suit against it.” Reply at 3.

The Defendants argue that the Plaintiffs’ contention in their Response that they adequately pled municipal liability under § 1983 under either the direct proof or burden-shifting method “fails to cure the problem,” because the Plaintiffs have not met their burden to allege facts sufficient to state all the elements of municipal liability. Reply at 3-4 (citing Gerald v. Locksley, 785 F.Supp.2d at 1098). The Defendants contend that the Plaintiffs’ reference to paragraph 14 in their Complaint is unavailing, because the paragraph “contains neither specific factual allegations regarding the conduct of any specific defendant nor any factual allegations to establish liability based on an unconstitutional policy.” Reply at 4 (citing Carney v. City and Cnty. Of Denver, 534 F.3d 1269, 1274 (10th Cir.2008)). The Defendants point out that, while the Plaintiffs contend that there was an unconstitutional policy of discrimination amongst the higher-up named individual Defendants, “there are no factual allegations to support the conclusory statements contained in paragraph 7(j) and 9(j) of the Complaint attributing the blogs to defendants Tso and Nicolay,” and “[t]here are no factual allegations linking the anonymous comments to these defendants, showing how anonymous comments can create Board liability under § 1983, or explaining how blog postings on a newspaper website reflect Board policy or custom.” Reply at 4. The Defendants argue that, because law requires at least three or four members to set school board policy, even if Tso and Benally attempted to set an unconstitutional discrimination policy at the CCSD School Board, they could not have done so. See Reply at 5-6. The Defendants assert:

Similarly, while Plaintiffs make identical allegations against each defendant, asserting that defendants failed to investigate complaints of discrimination, denied Plaintiffs various rights, refused to accommodate or negotiate accommodations with Plaintiff Hunt, “fraudulently” attempted to deny Plaintiffs sick leave and FMLA leave, and participated in a variety of other alleged wrongs, the SAC lacks specific factual support for these allégations as it contains no allegations stating exactly what each defendant did, and as noted above, contains no factual allegations establishing that the Board even knew of any of these matters. Moreover, the Plaintiffs’ Response never points to facts supporting any allegation that the CCSD was the “moving force” behind Plaintiffs’ alleged injuries or that there was a direct causal link between the restructuring and the deprivation of federal rights.

Reply at 6 (citing Complaint ¶¶ 4-10, at 2-9; Schaefer v. Las Cruces Pub. Sch. Dist., 716 F.Supp.2d 1052, 1062-63 (D.N.M.2010) (Browning, J.)).

The Defendants assert that, whereas, “[i]n Section IX of the Response, Plaintiffs argue that they ‘repeatedly’ pled discriminatory animus,” and then proceed to count the number of times that the Complaint uses “the words ‘Mormon,’ ‘Anglo,’ and ‘discriminate,’ ” “[n]o matter how many times Plaintiffs repeat their conclusions of discrimination, without supporting factual allegations, Plaintiffs’ claims should not survive Defendants’ Motion.” Reply at 8. *1164 The Defendants also argue that the Plaintiffs’ argument about the Superintendent’s lack of unilateral power to cancel administrators’ contracts are inapposite to any matter before the Court on the Motion to Dismiss, because there are no allegations about, the contracts being cancelled,, but rather only about reassignment. See Reply at 8-9. The Defendants also assert that the Plaintiffs’ Response, which argues that a discriminatory conspiracy led to their constructive termination and created a hostile work environment, also lacks specific allegations sufficient “to establish discrimination or retaliation and there are insufficient allegations to support either constructive termination or hostile work environment.” Reply at 9-10. In relation to Hunt’s assertion, claiming constructive termination resulting from Defendants’ alleged refusal to engage in reasonable accommodation negotiations, the Defendants assert:

To the extent Plaintiff Hunt asserts failure to accommodate or negotiate in support of his claims of discrimination under Title VII or the New Mexico Human Rights Act, such claims must fail because he never alleges that others, similarly situated, were accommodated or that he “could have been accommodated,” as required to state a claim.

Reply at 10 (citing Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1264 (10th Cir.2009)). Similarly, the Defendants contend that “assertions that Plaintiff Hunt ‘can perform any administrative work’ and that the CCSD has 1100 positions, do not establish that accommodation was possible or that failure to accommodate was discriminatory or retaliatory.” Reply at 10 (quoting Complaint ¶ 25, at 16). With respect to Ulibarri, the Defendants assert that the arguments supporting her claims of constructive termination and hostile work environment are also insufficient, because “[s]he re-hashes the conclusory allegations of discrimination while conceding that she had some choice in her new position and used sick leave while she had dental surgery.” Reply at 10. They assert that the Plaintiffs do “not link the job assignment or alleged denial of accommodation or negotiation to any factual allegations of conspiracy or to any protected activity.” Reply at 10-11. The Defendants argue that, in light of existing law, the Complaint’s failure to plead anything rising to the level of pervasive harassment, and allegations of only speculative future monetary losses, “[f]inding a hostile work environment or constructive termination under these circumstances would require a significant extension of existing law.” Reply at 12.

In response to the Plaintiffs’ arguments about the FMLA, the Defendants assert that there are no claims or allegations in the Complaint which find support in the FMLA:

Given that the first numbered paragraph of the [Complaint] states that Plaintiff Hunt “suffers from the serious medical conditions of diabetes, anxiety and depression, and neuropathy, [Doc. 24, ¶ 1] and that Plaintiff Ulibarri herself raised the need for “extensive dental surgery,” [Id. ¶ 33] it is disingenuous for Plaintiffs to allege that they were damaged because defendants raised FMLA coverage issues.

Reply at 13 (citing Complaint ¶¶ 1, 33, at 1-2, 20-21). As to the adverse-employment-action allegations supporting the Plaintiffs’ Title VII and NMHRA claims, the Defendants contend that there are no allegations sufficient to state a claim for an adverse employment action, because, “[u]ntil the Plaintiffs chose to resign, they enjoyed the most basic condition of their employment — full salary.” Reply at 13 (citing Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC-009, ¶ 16 , 139 N.M. 193 , 131 P.3d 43 ). The Defendants’ con *1165 tend that the Plaintiffs’ argument “that-denial of a property right, by itself, is an adverse employment action .... ignores the applicable law.” Reply at 14 (citing Lucero v. N.M. Lottery, 685 F.Supp.2d 1165, 1172 (D.N.M.2009) (Herrera, J.)).

The Defendants reiterate that: “Plaintiffs have failed to plead sufficient facts to establish a conspiracy in violation of 42 U.S.C. § 1985 . None of the allegations against any of the individual defendants specifically identify what each defendant did in furtherance of any conspiracy to deprive Plaintiffs of any of their rights to Equal Protection.” Reply at 14 (citing Martinez v. Martinez, No. CIV 09-0281 JB/KMBM, 2010 WL 1608884 (D.N.M. Mar. 30, 2010) (Browning, J.)). As to the argument in the Plaintiffs’ Response about Count II, the Plaintiffs’ claim for violation of the implied covenant of good faith and fair dealing, the Defendants assert: “As the Plaintiffs never allege that there is a term in the policies or elsewhere that precludes reassignment, this argument is not relevant.” Reply at 15. According to the Defendants, “[further, the implied covenant of good faith and fair dealing is breached only when a party seeks to prevent the contract’s performance or to withhold its benefits from the other party,’ ” about which they assert there are no allegations in the Complaint. Reply at 15 (quoting Sanders v. FedEx Ground Package Sys., Inc., 2008-NMSC-040, ¶ 8 , 144 N.M. 449 , 188 P.3d 1200 ). In relation the Plaintiffs’ FATA argument, the “Defendants submit ... that Plaintiffs are construing the statute far more broadly than is necessary or appropriate.” Reply at 15. The proper construction, according to the Defendants, is to construe the statute, which is designed to protect whistleblowers, “to protect from retaliation private employees who disclose information, about a fraud against the government.” Reply at 15. The Defendants assert that, regardless whether the Court accepts the Plaintiffs’ proffered construction, there is still no waiver of sovereign immunity under FATA. See Reply at 16.

The Defendants argue that N.M.S.A. 1978, § 41-4-6, which waives sovereign immunity for negligent operation and maintenance of a building, does not apply to this case. See Reply at 16. They contend that application of § 41-4-6 would “radically” extend the law, as the Plaintiffs have not pointed the Court to any authority that “a conspiracy is a condition, much less an ‘unsafe’ condition,” as the state requires for the immunity waiver. Reply at 17 (quoting N.M.S.A.1978, § 41-4-6). In relation to what the Defendants term the miscellaneous issues surrounding Count VIII and others, the Defendants assert:

Whether or not Plaintiffs believe their failure to exhaust their administrative remedies is de minimus and “nonsense,” these procedures must be observed. Moreover, even if Plaintiffs are correct and these procedures are meaningless for any reason, their claims for the alleged Human Rights Act violations (Count VIII) must be dismissed as a substantive matter as shown in the Motion to Dismiss. Finally, Plaintiffs are not entitled to punitive damages on any of their state law claims or their federal claims against the Board.

Reply at 17. The Defendants therefore ask the Court to dismiss the Complaint with prejudice. Reply at 18.

On January 31, 2013, the Court held a hearing on the Motion to Dismiss. The Defendants opened by asserting: “In short, with respect to the federal claims, defendants assert that the plaintiffs have not stated with sufficient particularity the specific basis of their claims. The ... Complaint does not identify who did what to whom[,] .... [and thus] does not meet *1166 the plausibility standard” set forth in Robbins v. Oklahoma. Transcript of Hearing at 7:17-24 (taken Jan. 31, 2013)(German)(“Tr.”). 3 The Defendants asserted that Robbins v. Oklahoma is on point and shows that the Complaint fails to state a claim on any of the federal causes of action. See Tr. at 8:5-23(Tr.).

The Plaintiffs, by way of introduction, pointed out that they are first alleging disparate impact, based on the CCSD’s restructuring, as it impacted Anglos and Mormons across the district at a disproportionate level. See Tr. at 9:18-10:15 (Geran). The Plaintiffs asserted that they can point to “specific meetings if that’s necessary to do in order to set up a conspiracy claim. There have been ongoing claims in the district.” Tr. at 11:15-17 (Geran). They noted that “a definite problem here was everybody ... signed their contracts for the coming yéar the month before, so that the contracts were already signed by the time of the meeting. Our stance is that they had the contractual right to work in these positions.” Tr. at 12:17-21 (Geran). The Defendants pointed out that facts which the Plaintiffs added in their Response about Epperson and Manning are not alleged in the Complaint, and so any connection that the Plaintiffs may try to make to the any actions the Defendants took with respect to Manning or Epperson cannot be included in any analysis of the claims as the Complaint exists now. See Tr. at 14:7-15:4 (German). The Defendants asserted that,, because Nicolay is alleged only to be Tso’s campaign manager, the Court should dismiss any of the claims against him, as any alleged position as a campaign manager is insufficient to find that he is a state actor. See Tr. at 16:4-22 (German). The Defendants also asserted that the factual allegations are insufficient to state any claim under Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. at 658 , 98 S.Ct. 2018 , as there are no factual allegations that a group of non-Anglo/non-Mormons were treated better in the restructuring. See Tr. at 17:3-8 (German). The Defendants noted that they could not glean from the Complaint or the Response “whether plaintiffs are alleging that the discrimination was against those who were both Anglo and Mormon or if they were alleging it was against Anglos and also against Mormons.” Tr. at 17:9-14 (German).

Moving to the equal-protection claim, the Defendants noted that the CCSD is not a proper party to the case, as it cannot be sued, and that the proper party is the CCSD School Board. See Tr. at 19:5-10 (German). The Defendants asserted that the Complaint refers to an “informal” policy of discrimination, but does not state specific, non-conclusory factual allegations in support of the discrimination policy. Tr. at 19:20-23 (German). The Defendants contended that it is circular to allege that the restructuring was part of the discrimination policy and then use the restructuring as the only factual support for the existence of this policy. See Tr. at 19:23-24 (German). The Defendants contended that there are no allegations which would establish an adverse employment action in relation to either of the Plaintiffs. See Tr. at 20:3-9 (German). In response to the Court’s question whether the Plaintiffs are alleging a class-of-one equal-protection claim, the Plaintiffs responded that they could not ascertain from the Complaint if the Plaintiffs are pursuing a class-of-one claim or are alleging that there is a larger class. See Tr. at 20:10-23 (Court, *1167 German). The Court asked whether an adverse employment action is the same for § 1983 purposes as it is for Title YII purposes. See Tr. at 21:7-9 (Court). The Defendants responded that an adverse employment action is the same for both claims. See Tr. at 21:13-24 (Court, German). The Defendants asserted that there is no conduct that rises to the level of an adverse employment action: “Arguably, there’s a speculative adverse employment action in the future if, in fact, salaries were reduced, but even then,” the possible future reduction is “not sufficient to support a constructive discharge claim.” Tr. at 22:7-13 (German). The Defendants also contended that any adverse employment action is speculative at best, because the Plaintiffs were told that they were going to continue to be fully paid for the remainder of the year, and that they would likely, not definitely, face a decrease in their pay in the future. See Tr. at 22:14-20 (German). The Court asked whether the Defendants would agree that, if the Defendants -had lowered the salary on the same day that the CCSD changed the Plaintiffs’ titles' and responsibilities, rather than one year later,such circumstances would constitute an adverse employment action. See Tr. at 22:21-25 (Court). The Defendants responded that the combination of those three circumstances would likely constitute an adverse employment action, but not in all circumstances. See Tr. at 23:4-7 (German). The Court asked whether it is undisputed that both of the Plaintiffs’ job responsibilities changed during the restructuring. See Tr. at 23:8-10 (Court). The Defendants responded that it is contested that Ulibarri’s responsibilities changed, because her oversight of the district’s custodians was delegated to the principal at each of the schools. See Tr. at 23:14-22 (German). They also pointed out that, under New Mexico law, which was incorporated into both Plaintiffs’ contracts, the superintendent has the power to hire, fire, and reassign employees. See Tr. at 24:4-7 (German). The Court asked whether, if these three events occurred at the same time — the reassignments to lower positions, the change.in title, and the decreases in salary — rather than the loss of salary occurring one year after the restructuring, the three events “would at least perhaps create a genuine issue of material fact ... whether there was an adverse employment action.” Tr. at 24:13-19 (Court). The Defendants asserted that the one-year time lapse in the-salary change matters when the Plaintiffs were both administrators, because, while teachers have automatic contract renewal after three years, there is no automatic contract renewal for administrators. See Tr. at 24:24-25:14 (German).

The Defendants added that, whereas the “Plaintiff[s] had asserted in response [that] paragraph 14 of the Complaint met the standard to: plead specific allegations in support of the equal protection claims or the federal civil rights claims”:

this is a perfect example of how the Complaint does not meet that standard, because if you look at paragraph 14 of the Second Amended Complaint each statement in there is a very general conclusory statement. It says all defendants had notice of the informal policy of discrimination and harassment with the specific goal of eliminating Mormon Anglo supervisors, but there’s no allegations saying how they had notice or what it is that provides a basis for that assertion. It says all defendants enforced and conspired to enforce a formal policy custody practice or pattern of Mormon Anglo discrimination, but there are no allegations in the Complaint saying what each defendant did in furtherance of that conspiracy or what any defendant *1168 did to enforce such an informal policy[,] that hasn’t been articulated.

Tr. at 26:7-21 (German). The Defendants contended that, “[a]s far as equal protection, there are no specific allegations of' similarly situated individuals who were treated differently, so there’s no [factual allegations] to support a disparate treatment claim.” Tr. at 27:7-10 (German). The Defendants argued that the Complaint also fails to state a claim for the CCSD School Board’s liability under § 1983, because any school board action by law requires at least three school board members to act, and there are only two members named as Defendants in this case. See Tr. at 28:2-14 (German). In relation to the Plaintiffs’ contentions that the alleged blog posts support finding that discriminatory intent exists, the . Defendants argued:

[T]here’s nothing in the Complaint that says why plaintiffs assert — or the basis for their assertion that either of these defendants engaged that blogging nor are there specific' allegations of what the hate blogging is or how that could be attributed even if they did participate in such inappropriate hateful conduct, how that would be evidence of a custom or practice of the school board.

Tr. at 28:22-29:3 (German). The Defendants noted that the factual allegations about each of the individual Defendants are “nearly identical” except for subjection j, and are all conclusory. See Tr. at 29:6-13 (German).

The Plaintiffs responded first by addressing the Complaint’s paragraph 14. The Plaintiffs noted that the paragraph alleges that “all defendants had actual/or constructive notice of the unofficial but well-known practice or pattern of Anglo and Mormon discrimination, including the ongoing harassment of Mormon executive director of finance and operations ... Manning, the [discriminatory] termination of Anglo then-superintendent Epperson,” and that paragraph 14 should have alleged that as well. Tr. at 30:3-17 (Geran). The Plaintiffs noted, with respect to the Defendants’ comments that some of the facts relating to Manning and Epperson are absent from the Complaint and the Response, that omission may be the case and an oversight, as the Plaintiffs’ counsel has “been dealing with this for about a year and a half.” Tr. at 31:9-13 (Geran). The Plaintiffs stated: “Nevertheless, the facts are pled. With regard to disparate impact it’s pled twice. It says at 18 and 19 the involved restructuring affected more [Mormon] and Anglo supervisors ... disproportionately.” Tr. at 31:14-20 (Geran). The Plaintiffs also asserted that their discrimination claim is not alleging a class-of-one equal-protection claim. See Tr. at 32:4-11 (Geran). The Plaintiffs argued that the Defendants did not brief any contention that the Plaintiffs, as supervisors, were in a different category in- the contract. See Tr. at 32:12-24 (Geran). In response to the Court’s inquiry whether the Plaintiffs have in their Complaint that both Plaintiffs’ responsibilities were diminished, the Plaintiffs stated that they break down this information in paragraph 17 by alleging that Hunt was told in the meeting that he was being demoted to a “ground maintenance worker position,” and that he was going to lose $50,000.00 salary beginning the following year. Tr. at 33:24-35:9 (Geran). In relation to Ulibarri, the Plaintiffs noted that paragraph 21 explains that after returning from leave, Ulibarri did not have a job assignment and she was told that she also was going to lose salary in the upcoming year. See Tr. at 36:5-24 (Geran). In response to the Court’s inquiry whether the administrators’ year-to-year contract makes a difference, the Plaintiffs referred the Court to Jones v. Oklahoma City Pub. Sch., 617 F.3d at *1169 1273 , asserting that hiring year to year does not “cut off the fact that if you make an employment decision on .... a forbidden basis it’s illegal in this country, and that’s whether you’re Mormon or Anglo or Native American or disabled or anything.” Tr. at 37:5-13 (Geran).

The Defendants responded by adding that any contentions about the Defendants’ failure to accommodate Hunt or failure to negotiate accommodation, and accordingly his inability to perform the new job in light of a disability, are inapposite, because there is no claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), in this lawsuit. See Tr. at 40:11-16 (German). They added that there are no allegations about disparate impact relating to any accommodations, as there are no facts about accommodating or failing to accommodate anyone other than Hunt. See Tr. at 40:20-24 (German). The Defendants stated that they “agree ... that if employment decisions were made ... based on protected categories, that that’s unlawful, but there’s no — there aren’t specific allegations in the Complaint to state that’s what happened.” Tr. at 42:2-5 (German). They also asserted that, in relation to all of the Plaintiffs’ claims based on any alleged adverse employment actions, “[a]ny potential loss of pay was purely speculative. Both plaintiffs resigned before they were offered a contract with a lower pay in it, so we don’t know if they would have suffered any actual damages.” Tr. at 42:16-19 (German). The Defendants noted: “[T]o the extent this turns into an ADA claim, the allegations are that Mr. Hunt could not perform the job.... So I think that would fail a motion to dismiss under an [] ADA claim.” Tr. at 43:5-10 (German).

As to the Plaintiffs’ § 1985(3) claim, which the Defendants understand is brought against some of the Individual Defendants, the Defendants argued that the .Plaintiffs failed to state a claim, because there are no factual allegations about an agreement to conspire, there are no alleged acts done in furtherance of the conspiracy, and the Plaintiffs were not injured. See Tr. at 43:13-44:17 (German). According to the Defendants, based on the allegations in the pleadings, and the Plaintiffs’ failure to address this argument in the Response, “all of the individual defendants are entitled to qualified immunity on the 1985 claim.” Tr. at 44:21-25 (German). The Defendants asserted that the intracorporate conspiracy doctrine prevents any § 1985 claim, and noted that the Plaintiffs failed to address the intracorporate conspiracy in their Response as well. See Tr. at 45:6-10 (German).

The Plaintiffs responded that, “with regard to the conspiracy, these people are all operating together,” which, they asserted, finds support in paragraph 21 of the Complaint, as Martinez and Frazzini told the Plaintiffs that they would have to use their FMLA leave concurrently with their accrued leave. Tr. at 46:21-47:16 (Geran). In response to the Court’s inquiry whether the intracorporate conspiracy theory protects against application of § 1985, 'the Plaintiffs contended that it does not apply, because the Defendant is a school board, not a corporation,,and because the Defendants’ discrimination took them outside the scope of employment. See Tr. at 48:2-25 (Geran, German). The Plaintiffs referred the Court to Jones v. Oklahoma City Pub. Sch., 617 F.3d at 1273 , as being “on all fours with this case” and supporting their conclusion that § 1985 applies. See Tr. at 50:13-20 (Geran). The Defendants, in response, asserted:

[A] [§ ]1985 conspiracy claim would not apply to allegations relating to a conspiracy to deprive someone of their FMLA leave or their sick leave unless *1170 somehow there were also allegations that said the conspirators conspired to deprive Anglos and Mormons from FMLA or sick leave. But there’s nothing ... that says that in the Complaint.

Tr. at 52:12-20 (German). The Defendants pointed out that the regulation which the Plaintiffs cite in their Response—29 C.F.R. § 825.207—gives the employer the choice to substitute accrued leave for FMLA leave, but requires the employer to notify the employee if it makes that decision. See Tr. at 52:24-53:12 (German). In response to the Plaintiffs’ contention that the intracorporate conspiracy doctrine does not apply to their § 1985 claim, the Defendants contended that the doctrine applies, because all the Defendants were employees of the same entity, whether a corporation or a public entity, and because discrimination does not take the employees’ conduct outside of the scope of their employment. See Tr. at 53:18-54:11 (German)(citing Celaya v. Hall, 2004-NMSC-005 , 135 N.M. 115 , 85 P.3d 239 ).

The Defendants next discussed the Plaintiffs’ Title VII claim, first contending that the Court should dismiss any Title VII claims against the individual Defendants, because employers only, and not individuals, are subject to liability under Title VII. See Tr. at 55:10-17 (German). The Defendants asserted that the legal standards for the Title VII claim are the same as the standards for the § 1983 equal-protection claim, and asserted that the Plaintiffs have similarly failed to sufficiently allege disparate treatment for Title VII purposes. See Tr. at 55:18-23 (German). The Defendants argued that the Plaintiffs’ allegations also fail to sufficiently allege constructive discharge, as the factual allegations, even if taken as true and construed in the Plaintiffs’ favor, do not rise to the level at which a reasonable person would have felt compelled to resign. See Tr. at 56:1-15 (German)(citing Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 16 , 150 N.M. 17 , 256 P.3d 29 ). The Plaintiffs, in response to the Court’s inquiry whether they were alleging the class against which there was discrimination was Mormon or Anglo, or persons who were both Mormon and Anglo, asserted: “[T]here were four or five Mormon[-]Anglo directors, there were four or five Anglo Directors who were not Mormon, and there was a Hispanic. All those people were treated differently than every other ... class,” and those demoted and fired were “replaced by Native Americans.” Tr. at 57:8-24 (Court, Geran). The Plaintiffs stated: “[W]hat we would propose to compare, just as we did in the Complaint, is the treatment of Mormons, the treatment of Anglos, the treatment of Mormon/Anglos, and other races, specifically Native Americans.” Tr. at 57:25-58:4 (Geran). The Plaintiffs contended that there is a materially adverse employment action, because the Defendants told the Plaintiffs that they would lose half of their pay in eleven months when they informed the Plaintiffs about the restructuring. See Tr. at 58:7-18 (Geran). The Plaintiffs argued that the Defendants’ substitution of the FMLA leave goes to the adverse employment action, because the FMLA regulation allows for employees only, not the employer, to substitute the FMLA leave for accrued leave. See Tr. at 60:6-23 (Geran). In relation to the factors for determining constructive discharge in Charles v. Regents of N.M. State Univ., the Plaintiffs asserted that the hate-speech blogging goes to intentional harassment and that they are alleging Tso was the author of the discriminatory comments. See Tr. at 61:4-15 (Geran). Another factor important for constructive discharge is that the Defendants continually pressured the Plaintiffs to resign in lieu of taking positions which they did not want, and in lieu of renewing *1171 their contracts for less pay at the end of the year. See Tr. at 62:8-18 (Geran). The Plaintiffs noted that, if the Court dismisses the federal claims for failure to state a claim at this stage in the case, they ask the Court to grant them leave to: amend their Complaint and provide more specificity in their allegations. See Tr. at 64:10-21 (Geran). The Defendants responded that, while it may have been prudent for the school board to publicly speak out against the. hate-blogging, regardless who wrote the comments, neither Title VII nor the Constitution makes imperative that the School District do so. See Tr. at 67:5-9 (German). The Defendants also pointed out that, with respect to the Defendants allegedly pressuring the Plaintiffs to resign by forcing them to work in the new positions, there are no factual allegations that Hunt told any supervisors about his alleged disabilities or requirements for accommodation; the allegations only state that months later, George Geran, the Plaintiffs’ counsel, sent a letter to CCSD about Hunt’s disabilities. See Tr. at 66:24-67:4 (German).

Moving to the state-law claims, the Defendants argued that the Plaintiffs’ claim under the NMHRA “suffers'from the same flaws as the Plaintiffs’ Title- VII claims. They do not sufficiently state a [disparate impact] or a [disparate] treatment claim. There are insufficient allegations of intentional discrimination. And again we assert no ... adverse action has been served.” Tr. at 67:20-25 (German). The Defendants asserted that the alleged constructive-discharge claim, like the Title VII claim, fails, as a reasonable person would not feel that they had no choice but to resign. See Tr. at 68:2-6 (German). In relation to the retaliation claim under the NMHRA, the Defendants stated:

[T]he timing on that is backwards. He stopped coming to work in July of — I’m sorry, in July of 2011 he received notice of the reassignment. Also in July he advised the school that he would not comply with their leave policies and did not return to work after that.

He filed his Human Rights Act charge in December of 2011, and he resigned in February of 2011. So there are no allegation^] ... of any adverse employment action taken after he filed his Human Rights Act charge in December. And there’s no other protected activity that I could discern that [is] alleged in the Complaint.

Tr. at 68:8-18 (German). In relation to the Plaintiffs’ breach-of-contract claim, the Defendants asserted that the Plaintiffs cannot state a claim for breach of contract, because their contract provided for employment at a paid salary for one year— the 2011 to 2012 school year — which the restructuring did not affect. See Tr. at 68:23-69:14 (German).

The Plaintiffs asserted that their allegations are sufficient to state, a claim for adverse employment action and discrimination, as there was ongoing harassment and the FMLA leave was used as a vehicle for the discrimination and harassment. See Tr. at 69:18-70:3 (Geran). The Plaintiffs also stated: “[T]he fact is that the failure to accommodate him is absolutely part of the retaliation claim, and it only makes ... sense that way.” Tr. at 70:3-5 (Geran). In response to the Court’s inquiry how the Plaintiffs intend to use the Defendants’ failure to provide Hunt reasonable accommodation, as they do not have any claim under the ADA or for disability discrimination under the NMHRA, the Plaintiffs responded that the failure to accommodate is evidence of the Defendants’ discrimination pattern. See Tr. at 70:10-25 (Court, Geran). The Court asked how the Plaintiffs respond to the Defendants’ contention that there are no *1172 factual allegations that accommodation was possible, or that the Defendants provided accommodations to persons of other races or religions. See Tr. at 71:7-9 (Court). The Plaintiffs responded that the Complaint alleges that Hunt can work administrative jobs and that the Defendants “were told that.” Tr. at 71:10-12 (Geran). The Plaintiffs contended that it is important to note that the Defendants did not pick a job that was related to jobs that he had performed in the past, and “[s]o what they did was, they assigned him to a position that conceivably they knew he couldn’t do, and then refused to accommodate him.” Tr. at 71:13-72:5 (Geran). They also pointed out that paragraph 25 says “ ‘upon information and belief suitable positions for [P]laintiff [H]unt have opened up as [Pjlaintiff [H]unt can perform any administrative work.’ ” Tr. at 72:15-17 (Geran). Mr. Geran conceded that, “with regard to the timing, there is no question that ... I complained first for Mr. Manning but ... then shortly thereafter I wrote a letter for Mr. Hunt and requested the reasonable accommodation negotiation ... and nobody responded in any way, shape or form.” Tr. at 72:20-73:5 (Geran). As to the breach-of-contract claim, the Plaintiffs noted that the superintendent has the ability to transfer employees, but only upon the happening of some events, and argued that they “need discovery to show them. One is a decrease in funding. One is a change in curriculum, and one is a change in enrollment.” Tr. at 74:4-15 (Geran). In response to the inquiry about what the Plaintiffs were alleging in relation to Levinski’s conduct, the Plaintiffs stated that they are alleging that Levinksi “was specifically running the conspiracy” with Marquez and Frazzini, and was their point of contact in the conspiracy. Tr. at 77:4-8 (Geran). The Defendants asserted that the only allegations about Levinski are contained in the Complaint’s paragraph 4, “which is a duplicate of the allegations against all the other named defendants with exception of [Tso] and [Nicolay], who are also accus[ed] [in a] conclusory fashion of participating in the hate speech blogging.” Tr. at 78:15-21 (German). The Defendants reiterated that there was no contract breach in this case, because the contracts incorporate the CCSD’s policy that the superintendent may reassign the administrators’ job positions, and that there is no guarantee, for administrators, of reemployment unless given notice that the contract will be renewed within fourteen days of its expiration. See Tr. at 78:22-80:9 (German).

With regard to the FATA claim, the Defendants asserted that the FATA is analogous to the federal qui tam statute, and “the whole point- of it is to protect the state from fraud.” Tr. at 81:14-16 (German). They noted that the FATA prohibits retaliation by an employer against an employee who acts in furtherance of a fraud against taxpayers, but they point out that “nothing in the Complaint indicates that either Mr. Hunt or Ms. Ulibarri were acting in any way in furtherance of a fraud against taxpayers claim.” Tr. at 81:24-82:3 (German). The Defendants also noted their contention, that “there is no ... waiver of immunity in the [FATA].” Tr. at 82:15-19 (German). The Plaintiffs responded that, in paragraph 25, the Complaint alleges that Hunt requested a new position and that the CCSD continually refused him one. See Tr. at 83:4-14 (Ger-an). The Plaintiffs responded that the FATA’s plain language supports finding that the CCSD’s actions violated the FATA and that the Plaintiffs may properly assert a cause of action under the FATA. See Tr. at 83:20-84:19 (Geran). The Plaintiffs also asserted that N.M.S.A.1978, § 44-9-11(A)’s plain language waives the CCSD’s sovereign immunity. See Tr. at *1173 86:15-87:11 (Geran). The Plaintiffs additionally contended that the FATA is not analogous to the federal qui tam statute, because there is no analogous provision in the FATA. See Tr. at 87:23-88:7 (Geran). They asserted that the statute’s plain language clearly covers a private action to redress retaliation against employees by employers, including political subdivisions. See Tr. at 88:17-23 (Geran). The Defendants responded that § 44-9-11 is not a stand-alone provision, but provides a cause of action only for retaliation against employees for reporting specific fraudulent actions which § 44-9-3 sets forth. See Tr. at 89:4-18 (German). The Defendants asserted: “Even, using plaintiffs’ interpretation of the statute there’s no allegations in the Complaint that either plaintiff disclosed any information to a Government or law enforcement agency, and there are no allegation[s] ... that either of them acted in furtherance of a fraud against taxpayers action.” Tr. at 89:23-90:4 (German). The Defendants also noted that case law is clear that punitive damages are not available in a state-law cause of action against the CCSD, so to the extent the Court allows the Plaintiffs to go forward with the FATA claim or any of the other state-law claims, the Court should dismiss any claim for punitive damages. See Tr. at 90:17-25 (German).

The Defendants next argued that the waiver of liability under the NMTCA for negligent management of a building in N.M.S.A.1978, § 41-4-6 does not apply to the facts of the case. See Tr. at 91:4-11 (German). The Defendants asserted that § 41-4-6 waives immunity for property damage or personal injury, which the Plaintiffs are not alleging. See Tr. at 91:12-21 (German). The Plaintiffs responded that their Complaint at paragraph 67 asserts that the Plaintiffs “have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. That’s property damage.” Tr. at 92:5-12 (Geran). The Court asked the Plaintiffs whether they agree that the Court can consider the letters and the CCSD policies that they reference in their Complaint. See Tr. at 93:4-8 (Court). The Plaintiffs agreed with the Court that the Complaint incorporates by reference the letters and the policies, but noted that they do not want to convert the Motion to Dismiss into a summary judgment motion. See Tr. at 93:15-52 (Geran). The Defendants also agreed that the Court can consider the incorporated materials in deciding the Motion to Dismiss. See Tr. at 94:23-95:4 (German). The Defendants asserted: “As far as the remaining portions of the defendants’ motion, defendants assert that there’s no waiver of immunity for any of plaintiffs’ other state tort claims, including tortious interference of a contract claim or the [common-law] conspiracy claim.” Tr. at 95:13-20 (German).

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). 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-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 , 127 S.Ct. 2499 , 168 L.Ed.2d 179 (2007) (“[O]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant pre *1174 vail on a motion to dismiss.”); 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-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)).

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) (“To determine whether a motion to dismiss was properly granted, we apply a plausibility standard to ascertain whether the complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible on its face.”). “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) (emphasis omitted).

The Tenth Circuit has held that “Iqbal establishes the importance of context to a plausibility determination.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010).

“[P]lausibility” in th[e general pleading] 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ) (internal citations omitted). In the employment-discrimination context, the Tenth Circuit has suggested that plausibility may require less specific pleadings than in the 42 U.S.C. § 1983 context, “because in employment discrimination cases where the employers are large corporations, the employee may not know who actually fired her or for what reason.” Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir.2012).

A plaintiff alleging employment discrimination, therefore, to withstand a rule 12(b)(6) motion to dismiss, need not plead facts sufficient to establish a prima facie case. See Khalik v. United Air *1175 Lines, 671 F.3d at 1192 (“[T]he 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint.”) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002)). Nevertheless, the Tenth Circuit has recognized that the McDonnell Douglas Corp. v. Green prima facie case “elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d at 1192 . “[GJeneral assertions of discrimination ... without any details whatsoever of events leading up to [the adverse employment action], are insufficient to survive a motion to dismiss.” Khalik v. United Air Lines, 671 F.3d at 1193 . “While ‘specific facts are not necessáry,’ some facts are.” Khalik v. United Air Lines, 671 F.3d at 1193 (alteration omitted)(quoting Erickson v. Pardus, 551 U.S. 89, 93 , 127 S.Ct. 2197 , 167 L.Ed.2d 1081 (2007) (citing Bell Atl. v. Twombly, 550 U.S. at 555 , 127 S.Ct. 1955 )).

RELEVANT LAW REGARDING 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,.....

42 U.S.C. § 1983 . Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989) (“Section 1983 does not provide a remedy if federal law does not create enforceable rights.”). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violáted the claimant’s federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff

must establish (1) a violation of rights protected by the federal Constitution or. created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.

Martinez v. Martinez, No. CIV 09-0281 JB/KBM, 2010 WL 1608884 , at *11 (D.N.M. Mar. 30, 2010) (Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701 , 96 S.Ct. 1155, 47 . L.Ed.2d 405 (1976) (Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-102 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971) (civil-rights statute).

The Supreme Court of the United States has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 129 S.Ct. at 1948 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own indi *1176 vidual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 897 , 403, 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 689 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). It can be held liable only for its own unconstitutional or illegal policies, and not for the tortious acts of their employees.

Liability, requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations and internal quotations omitted). See Bd. of Cnty . Comm’rs v. Brown, 520 U.S. at 404 , 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)). These standards apply for allegations of liability based on failure to train and for “official de facto policies” that arise from “failing to adopt various policies to adequately protect” a class of persons. Barney v. Pulsipher, 143 F.3d at 1367 , 1309 n. 8. “[W]hen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,” it is liable. Barney v. Pulsipher, 143.F.3d at 1307.

In a “narrow range of circumstances,” however, deliberate indifference may be found absent a pattern- of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations.

Barney v. Pulsipher, 143 F.3d at 1307-08 . Most cases, however, will not fall within this “narrow range of circumstances” without “a pattern of violations.” Barney v. Pulsipher, 143 F.3d at 1308 .

RELEVANT LAW REGARDING 42 U.S.C. § 1985 (3)

Claims under 42 U.S.C. § 1985 are less common than claims under § 1983. Section 1985 pertains to the prohibition of conspiracies which interfere with civil rights. See 42 U.S.C. § 1985 . The Supreme Court recognizes “five broad classes of conspiratorial activity” that § 1985 prohibits. Kush v. Rutledge, 460 U.S. 719, 724 , 103 S.Ct. 1483 , 75 L.Ed.2d 413 (1983). “Three of the five broad categories ... relate to institutions and processes of the Federal Government.” Kush v. Rutledge, 460 U.S. at 724 , 103 S.Ct. 1483 . The fourth and fifth classes of § 1985 claims apply to conspiracies to “obstruct the course of justice in state courts” and to “go in disguise on the highway or in the premises of another.” Kush v. Rutledge, 460 U.S. at 724 , 103 S.Ct. 1483 (internal quotation marks omitted). Both of these latter categories require an “intent to deprive their victims of the equal protections of the laws,” which means that there must be some “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspiratorial action.” Kush v. Rutledge, 460 U.S. at 724, 726 , 103 S.Ct. 1483 (internal quotation marks omitted). See Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir.1979) (“[I]n the absence of allegations of class based or racial discriminatory animus, the complaint fails to state a claim under § 1985.”).

*1177 To succeed on a § 1985 claim, a plaintiff must prove a conspiracy. See Dixon v. City of Lawton, Okla., 898 F.2d 1443 , 1447 (10th Cir.1990). To state a valid claim for conspiracy, “a plaintiff must allege specific facts showing an agreement and concerted action - amongst the defendants.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504 , 533 (10th Cir.1998) (discussing conspiracy under § 1983). “[M]ere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.” Sooner Prods. Co. v. McBride, 708 F.2d 510 , 512 (10th Cir.1983) (discussing conspiracy under § 1983).

The Tenth Circuit has held that it is error to “precondition consideration of a plaintiffs § 1985(3) claim upon the finding of § 1983 liability.” Dixon v. City of Lawton, Okla., 898 F.2d at 1447 (10th Cir.1990).

Although neither § 1983 nor § 1985(3) create any substantive, rights, a § 1983 claim generally describes a substantive violation of a right secured by the Constitution or laws, whereas a § 1985(3) claim generally describes a conspiracy of two or more persons for the purpose of depriving of another of equal protection of the laws or equal privileges and immunities under the laws.

Dixon v. City of Lawton, Okla., 898 F.2d at 1447.

To state a claim under § 1985(3), a plaintiff must show: (i) a conspiracy, motivated by racially discriminatory animus; (ii) to deprive the plaintiff of equal protection or equal protections of the laws; (iii) an act in furtherance of the conspiracy; and (iv) an injury or deprivation resulting therefrom. See Paris v. Sw. Bell Tel. Co., 94 Fed.Appx. 810, 815 (10th Cir.2004) (unpublished); Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993). 4 “Conclusory allegations that the defendants acted in concert or conspired, without specific factual allegations to support such assertions, are insufficient to state a claim under § 1985(3).” Martinez v. Martinez, 2010 WL 1608884 , at *12 (citing Merritt v. Hawk, 153 F.Supp.2d 1216, 1225 (D.Colo.2001)).

The Tenth Circuit has stated that § 1985(3) was intended “to provide redress for victims of conspiracies impelled by a commingling of racial and political motives.” Brown v. Reardon, 770 F.2d 896, 907 (10th Cir.1985). “[I]n the absence of allegations of class based or racial discriminatory animus, the complaint fails to state a claim under § 1985.” Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir.1979). The Tenth Circuit has consistently dismissed § 1985(3) claims devoid of racial, discriminatory animus. For example, in Paris v. Sw. Bell Tel. Co., the Tenth Circuit held that the plaintiffs hostile-work-environment claim failed, because she did not show racial discriminatory animus on *1178 the part of the alleged conspirators. See 94 Fed.Appx. at 815 .

In Martinez v. Martinez, the plaintiff alleged that M. Martinez, her ex-husband, Lynda Latta, her ex-husband’s attorney, and the Honorable Elizabeth Whitefield, the judge who presided over the Martinezes’ divorce in state court, conspired against her to deprive her of her rights guaranteed under the Equal Protection Clause. See 2010 WL 1608884 , at *1, *26. The Court noted:

The entirety of the constitutional claims appear to be these:

14. In the Court’s Defendant 4’s [i.e., Judge Whitefield’s] ruling to dismiss this case against Plaintiff first of all is a violation of Federal Rule 60(b)(4) because the Court lacked jurisdiction over the subject matter and that dismissal, for lack of prosecution, which conduct was done as a state actor under color of law by [Judge Whitefield] and in conspiracy with [Ms. Latta] on behalf of [M. Martinez], to achieve these ends. [Ms. Latta] is included in this legal process, entered into knowingly and fraudulently to achieve the illegitimate end of depriving Plaintiff of her due civil rights by [Judge Whitefield’s] void ruling, which rights are afforded by 42 U.S.C. §§ 1983 and 1985(3) to a fair hearing of the property as she has attempted to litigate for these last years.

15. [Ms. Latta and Judge Whitefield] are participants with [M. Martinez] and have conspired to keep Plaintiff at bay in obtaining her rights to this undivided property by engaging improper courts and attempts to harass and exhaust Plaintiff of her financial resources....

17. The Fourteenth Amendment states thus: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law ... And further in the Fifth Amendment “the Bill of Rights protects against abuse of government — the ‘double jeopardy’ clause seems to be applied here, because Plaintiffs same former case 95-2963 was voluntarily dismissed by Plaintiff without prejudice in 2003, and resurrected from the dead improperly by [M. Martinez, Ms. Latta, and Judge Whitefield] on August 28, 2007 by Motion....

18. [Judge Whitefield] attempts to adjudicate a new dismissal of this same closed case by dismissing it again against Plaintiff for lack of prosecution and would attempt by doing so, to take away her right to adjudicate it elsewhere — this would be a gross violation for Plaintiff from [Judge Whitefield] and finds into the double jeopardy type of thinking easily — a double dismissal, one legitimate by Plaintiff and one illegitimate (reopened by Defendants by Motion) after this dismissal, and done (the second) with intention by [M. Martinez and Ms. Latta] and especially with the power of [Judge Whitefield], to attempt to deprive Plaintiff of her due process rights of hearing and eliminating her possibility to adjudicate her claim because [Judge Whitefield’s] ruling would then be the second dismissal on the basis of lack of prosecution which then adjudicates a case and it could not be brought again by this Plaintiff.

2010 WL 1608884 , at *24-25 (alterations in original). The Court dismissed the § 1985 claim, reasoning that the plaintiff “makes no allegation of discriminatory animus by [the defendants]” and that “there is nothing more than a conclusory allegation of conspiracy, lacking any underlying facts.” 2010 WL 1608884 , at *27. The Court noted that “[n]o alleged facts touch on any individual’s race, political or religious affili *1179 ation, or any other categorization against which the Defendants might hold a discriminate animus.” 2010 WL 1608884 , at *27.

LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES

“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825 , 96 S.Ct. 1961 , 48 L.Ed.2d 402 (1976) (citing 42 U.S.C. §§ 2000e-2, 2000e-3). The Court has noted that Title VII generally protects individuals from employers’ improperly motivated adverse treatment in the workplace:

Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007 WL 6364329 , at *6 (D.N.M. Dec. 31, 2007) (Browning, J.)(quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotes and alterations omitted). With the 1972 amendments to the statute, Title VII’s protections apply to federal and private employees. See Brown v. Gen. Servs. Admin., 425 U.S. at 825-26 , 96 S.Ct. 1961 (citing 42 U.S.C. § 2000e(b)).

At the motion-to-dismiss stage, the plaintiff need not plead facts to state a prima facie case under McDonnell Douglas Corp. v. Green to state a plausible claim for relief:

[Although the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.

Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (D.C.Cir.2009) (citing Jordan v. Alternative Res. Corp., 458 F.3d 332 , 346-47 (4th Cir.2006)). See Gerald v. Locksley, 849 F.Supp.2d 1190, 1221 (D.N.M.2011) (Browning, J.)(“A civil rights plaintiff need not' plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green ... to survive a motion to dismiss. Nevertheless, the plaintiff retains the burden to allege facts sufficient to state all the elements of her claim.”) (internal quotations and original alterations omitted)(quoting Prince-Garrison v. Md. Dep’t of Health and Mental Hygiene, 317 Fed.Appx. 351, 353 (4th Cir.2009)). See also Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990) (“McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict.”).

1. Reverse Discrimination.

Title VII “proscribed racial discrimination ... against whites on the same terms as racial discrimination against nonwhites.” McDonald v. Santa Fe. Trail Transp. Co., 427 U.S. 273, 279-80 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976). In these reverse discrimination cases, the protected-class requirement for a prima facie case under McDonnell Douglas Corp. v. Green is substituted for the requirement that the plaintiff show facts to support an inference that “the defendant is one of those unusual employers who discriminates against the majority.” Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir.1992). See Adamson v. Multi Cmty. Diversified *1180 Servs., Inc., 514 F.3d 1136, 1149 (10th Cir.2008) (“When plaintiff is a member of a historically favored group, by contrast, an inference of invidious intent is warranted only when ‘background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ’’)(quoting Notari v. Denver Water Dept., 971 F.2d at 589 ).

2. Law on Claims for a Hostile Work Environment.

“To establish a prima facie case of hostile work environment harassment, a plaintiff must show that ‘under the totality of circumstances [ (i) ] the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and [ (ii) ] the harassment was racial or stemmed from racial animus.’ ” Bloomer v. United Parcel Serv., Inc., 94 Fed.Appx. 820, 825 (10th Cir.2004) (quoting Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998)). See Carter v. Mineta, 125 Fed.Appx. 231, 238 (10th Cir.2005); Mitchell v. City and Cnty. of Denver, 112 Fed.Appx. 662, 671 (10th Cir.2004). To establish a hostile-work-environment claim, “a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (internal citations and quotations omitted). “A discriminatory and abusive environment must affect the employee’s work environment so substantially as to make it intolerable for her to continue.” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.1996) (holding that a work environment did not contain “pervasive” harassment when the plaintiff made general allegations of frequent “sexual slurs” and the only specific incident cited involved a co-worker grabbing the plaintiff).

“The mere utterance of a statement which ‘engenders offensive feelings in an employee’ would not affect the conditions of employment to a sufficiently] significant degree to violate Title VII.’” Gross v. Burggraf Construction Co., 53 F.3d 1531, 1537 (10th Cir.1995) (alteration in the original)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986)). A plaintiff must allege more than “ ‘a few isolated incidents of racial enmity’ or ‘sporadic racial slurs.’ ” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005) (quoting Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994) (internal citation omitted)). “Instead, ‘there must be a steady barrage of opprobrious racial comments.’ ” Chavez v. Mexico, 397 F.3d at 832 (quoting Bolden v. PRC, Inc., 43 F.3d at 551 ).

The Tenth Circuit has stated that “[pervasiveness and severity are independent and equal grounds” upon which a plaintiff may establish this element of a hostile-work-environment claim. Witt v. Roadway Express, 136 F.3d at 1432 (addressing a hostile-work-environment claim under 42 U.S.C. § 1981 ). See also Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir.1997) (citing Durham v. Xerox Corp., 18 F.3d 836, 838-39 (10th Cir.1994), for the proposition that “standards and burdens under § 1981 are the same as those under Title VII”). Moreover, the plaintiff must demonstrate that the work environment was objectively and subjectively offensive, but need “not demonstrate psychological harm, nor ... show that her work suffered as a result of the harassment.” Walker v. United Parcel Serv. of Am., 76 Fed.Appx. 881, 885 (10th Cir.2003). In addition to all the circumstances, relevant considerations to *1181 determine if an environment is objectively hostile include: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367 ) (internal citations and quotations omitted).

3. Disparate Treatment Discrimination.

“To prevail on a disparate treatment claim under Title VII of the Civil Rights Act, a plaintiff must show that [the] employer intentionally discriminated against [the plaintiff] for a reason prohibited by the statute.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1306 (10th Cir.2005). To do so, courts apply the burden-shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), which initially places the burden on the plaintiff to prove a prima facie case of discrimination. See, e.g., E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800-01 (10th Cir.2007).

The elements laid out in McDonnell Douglas Corp. v. Green to prove a prima facie disparate treatment prima facie case addressed only a refusal to rehire. Accordingly, the articulation of a plaintiffs prima facie case “varies depending on the type of adverse action the employee alleges was discriminatory.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d at 800 (citing Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005)). See 1 Lex K. Larson, Employment Discrimination § 8.08[1], at 8-103 (2d ed. 2012) (“[Cjourts have applied the McDonnell Douglas prima facie case, sometimes modifying the proof requirements to fit the specific facts of the case, to cases involving promotion, discharge, demotion, discipline, layoffs, and other types of employer actions.”). Generally, to prove a disparate-treatment discrimination claim at the summary judgment stage, “a prima facie case of discrimination must consist of evidence that (1) the victim belongs to a protected class; (2) the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d at 800 . See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir.2005) (holding that a “prima facie case for discrimination” requires the “plaintiff to show that (1) he belongs to the protected age group; (2) his job performance was satisfactory; (3) adverse employment action was taken against him; .... [in (4) ] ‘circumstances giving rise to an inference of discrimination.’ ”)(quoting Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.2004) (citing Plotke v. White, 405 F.3d at 1101 ; Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir.2002)); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir.2000) (“A prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination.”). Cf. Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1208 (10th Cir.2011) (“[The plaintiff] bears the initial burden of ... presenting evidence that (i) he is a member of a protected class, (ii) he was qualified for the job as Unit Supervisor, (iii) he was demoted from that job, and (iv) the position was not eliminated.”)(citing *1182 Jones v. Denver Post Corp., 203 F.3d at 753 ). 5

4. Disparate Impact Discrimination.

“Title VII forbids not only intentional discrimination based on disparate treatment but also ‘practices that are fair in form, but discriminatory in operation,’ most often referred to as ‘disparate impact’ discrimination.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1220 (10th Cir.2013) (citing Lewis v. City of Chicago, 560 U.S. 205 , 130 S.Ct. 2191, 2197 , 176 L.Ed.2d 967 (2010)). More specifically, disparate impact cases “involve employment practices that are fa-daily neutral in their treatment of differ *1183 ent groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 , 335 n. 15, 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977).

“ ‘The first step in raising a disparate-impact claim is to identify the specific employment practice allegedly causing the discriminatory impact.’ ” Tabor v. Hilti, Inc., 703 F.3d at 1221 (quoting Carpenter v. Boeing Co., 456 F.3d 1183, 1193 (10th Cir.2006)). To succeed in a disparate impact claim, a plaintiff must prove the existence of employment practices “that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971). See Carpenter v. Boeing Co., 456 F.3d at 1187 (“A plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant, disparate impact on a protected group.”)(quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir.1999)). Consequently, in disparate impact cases, unlike disparate treatment cases, proof of discriminatory motive is irrelevant. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991).

The Supreme Court has held that statistical evidence alone is sufficient to establish a prima facie case of disparate impact discrimination. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977) (“Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”); Tabor v. Hilti, Inc., 703 F.3d at 1222 (“ ‘Statistical evidence, is an acceptable, and common, means of proving disparate impact.’ ”)(quoting Carpenter v. Boeing Co., 456 F.3d at 1202 ). Statistics are not irrefutable, however,- and any proffered statistical analysis “must involve the appropriate comparables, and must ‘cross a threshold of reliability before it can establish even a prima facie case of disparate impact.’ ” Ortega v. Safeway Stores, Inc., 943 F.2d at 1243 (internal citation omitted)(quoting Allen v. Seidman, 881 F.2d 375, 378 (7th Cir.1989)). See Int’l Bhd. of Teamsters v. United States, 431 U.S. at 340 , 97 S.Ct. 1843 (noting statistics “come in infinite variety and, like any other kind of evidence, they may be rebutted”).

“[F]or statistical evidence to create an inference of discrimination, the statistics must ... eliminate nondiseriminatory explanations for the disparity.” Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir.1994) (quoting Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir.1991)). See Martinez v. Wyoming, 218 F.3d at 1139; Doan v. Seagate Tech., Inc., 82 F.3d 974, 979 (10th Cir.1996). “[Statistical evidence ... may be diluted by factors such as an inadequate sample size and failure to consider similarly situated individuals.” Ram v. N.M. Dep’t of Env’t, No. CIV 05-1083 JB/WPL, 2006 WL 4079623 , at *9 (D.N.M. Dec. 15, 2006) (citing Mayor of Philadelphia v. Educ. Equal. League, 415 U.S. 605, 621 , 94 S.Ct. 1323 , 39 L.Ed.2d 630 (1974); Martinez v. Wyoming, 218 F.3d 1133, 1138-39 (10th Cir.2000)). As a threshold matter, therefore, “[t]he statistics must ... relate to the proper population. For example', when the claim is disparate impact in hiring, the statistics should be based on data with respect to persons qualified for the job.” Carpenter v. Boeing Co., 456 F.3d at 1196 . The Tenth Circuit has explained that the statistical data must concern those people subjected to the challenged employment action:

*1184 After specifying the employment practice allegedly responsible for excluding members of their protected class from a benefit, plaintiffs must identify the correct population for analysis. In the typical disparate impact case the proper population for analysis is the applicant pool or the eligible labor pool. The composition of this population is compared to the composition of the employer’s workforce in a relevant manner, depending on the nature of the benefit sought.

Carpenter v. Boeing Co., 456 F.3d at 1196 (quoting Smith v. Xerox Corp., 196 F.3d 358, 368 (2d Cir.1999)).

Assuming that the statistical evidence concerns the correct population, the Tenth Circuit recently laid out a three-element analysis for a disparate-impact prima facie case, holding that the district court must analyze three issues: (i) the size of the disparity between those with the status allegedly discriminated against and those without the status; (ii) the statistical significance of the disparity, measured by standard error rate or standard deviation; and (iii) whether statistical evidence effectively isolates the challenged employment action. See Tabor v. Hilti, Inc., 703 F.3d at 1222 (stating that, for a prima facie case of disparate impact against women, “we are concerned with three issues: (1) the size of the disparity between male and female promotions; (2) the statistical significance of the disparity, measured by standard error rate or standard deviation; and (3) whether the statistical evidence effectively isolates the challenged employment practice”). In relation to the first issue, the size of the disparity between those with the status alleged to be the basis of the alleged disparate impact versus those without the status must be at least twenty percent. See Tabor v. Hilti, Inc., 703 F.3d at 1222 (noting that the EEOC “guidelines provide that a disparity of 20% or more in selection rate will be considered evidence of adverse impact in a disparate impact claim” and that “[although not controlling on courts, this guideline is persuasive”). As to the'statistical significance of the disparity, the Tenth Circuit has noted that “ ‘[t]he Supreme Court has recognized that a disparity of more than two or three standard deviations in a large sample makes ‘suspect’ the contention that the differential occurs randomly.’ ” Tabor v. Hilti, Inc., 703 F.3d at 1223 (holding that “Ms. Tabor’s evidence was statistically significant at 2.777 standard errors,” as to which the plaintiffs expert concluded “the probability is less than 0.006 that a disparity at least as large as this could occur solely as the result of chance factors, if promotions were unrelated to sex”)(quoting Carpenter v. Boeing Co., 456 F.3d at 1195 ). The third issue — whether the statistical evidence isolates the challenged adverse employment practice or action — means that the plaintiff must “isolate [] the specific employment practice by controlling for key factors outside the challenged practice that could potentially cause or contribute to the disparity.” Tabor v. Hilti, Inc., 703 F.3d at 1223 (citing Carpenter v. Boeing Co., 456 F.3d at 1196 ). The Tenth Circuit has explained that this third element is “important because it goes directly to causation” and that an employer will not be liable for disparate impact which is caused by circumstances outside of the employer’s control. Tabor v. Hilti, Inc., 703 F.3d at 1223-24 (“An employer will not, for example, be liable for a gender imbalance in its work force that ‘is due to a dearth of qualified [female] applicants (for reasons that are not [the employer’s] fault).’ ”)(quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651 , 109 S.Ct. 2115 , 104 L.Ed.2d 733 (1989), superseded *1185 by statute on other grounds by 42 U.S.C. § 2000e-2(k)).

5. Title VII Retaliation.

To establish a prima facie case of retaliation, a plaintiff must show: “(1) that he [or she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Proctor v. United Parcel Serv., 502 F.3d at 1208 (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1202). “To establish that a causal connection exists,” a plaintiff “may proffer ‘evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.’ ” Proctor v. United Parcel Serv., 502 F.3d at 1208 (quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir.2006)). Generally speaking, if this temporal proximity between the protected activity and the adverse action are not “very close in time,” the plaintiff “must'offer additional evidence to establish causation.” Proctor v. United Parcel Serv., 502 F.3d at 1209 (internal quotations omitted)(quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d at 1228).

6. Materially Adverse Employment Action.

The Tenth Circuit liberally defines what constitutes an adverse employment action. See Orr v. City of Albuquerque, 417 F.3d at 1150 (“Because of the remedial nature of Title VII lawsuits, we broadly define adverse employment action.”). As the Tenth Circuit has stated:

Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach; examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.

Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.1998) (internal quotation marks and citations omitted). See Proctor v. United Parcel Serv., 502 F.3d at 1208. An adverse action “is not limited to discriminatory-actions that affect the terms and conditions of employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 , 126 S.Ct. 2405 , 165 L.Ed.2d 345 (2006). “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir.2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68 , 126 S.Ct. 2405 ) (internal quotation marks omitted). “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68 , 126 S.Ct. 2405 (“We speak of material adversity because we believe it is important to separate significant from trivial harms.”). ‘We construe the phrase ‘adverse employment action’ liberally and do not limit it to ‘monetary losses in the form of wages or benefits.’ ” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1133 (quoting Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir.2004)). Acts that carry “a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects” may be considered adverse actions, although “a mere inconvenience or an alteration of job responsibilities will not suffice.” Annett v. *1186 Univ. of Kan., 371 F.3d at 1239 (internal quotation marks and citation omitted).

In Anderson v. Clovis Mun. Sch., 265 Fed.Appx. 699 (10th Cir.2008), the Tenth Circuit, in an unpublished opinion, addressed the requirement of ah adverse employment action in the context of a disparate-treatment claim where an employee, who had been placed on a growth plan, alleged other harsh treatment and a written reprimand in support of his claim that he suffered a hostile work environment. Relying on Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir.1999), the plaintiff, Anderson, argued that the growth plan and formal reprimand rose to the level of an adverse employment action under Tenth Circuit law. In discussing Anderson v. Clovis Mun. Sch.’s reliance on Schuler v. City of Boulder, the Tenth Circuit stated: “While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions ... would form the basis of a discrimination suit.” MacKenzie v. City and Cnty. of Denver, 414 F.3d 1266, 1279 (10th Cir.2005). See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir.2000) (explaining that Title VII proscribes only discriminatory conduct that “alters the employee’s compensation, terms, conditions, or privileges of employment, or adversely affects [the employee’s] status as an employee”)(quotations omitted). “Only acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action.” Robinson v. Cavalry Portfolio Serv., LLC, 365 Fed.Appx. 104, 114 (10th Cir.2010) (unpublished)(quoting Haynes v. Level 3 Commc’ns, 456 F.3d at 1218-19).

LAW REGARDING EQUAL-PROTECTION CLAIMS

The Equal Protection Clause of the Fourteenth Amendment guarantees that “no states shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.’ ” Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir.2004) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 , 112 S.Ct. 2326 , 120 L.Ed.2d 1 (1992)). See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1233 (10th Cir.2009) (“Equal protection ‘is essentially a direction that all persons similarly situated should be treated alike.’ ”)(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985)).

1. Equal-Protection Claims in the Employment Context.

To state an equal-protection claim against a municipality in the employment context, the plaintiff must show that the defendant’s conduct, taken under color of law: (i) constitutes “an adverse employment action”; (ii) was motivated by a discriminatory intent; and (iii) was pursuant to the defendant’s “policy or custom.” Gerald v. Locksley, 785 F.Supp.2d at 1106 (internal quotations omitted)(quoting Lewallen v. City of Beaumont, 394 Fed.Appx. 38, 42-43 (5th Cir.2010)). Where a state, employee undertakes the conduct, the piaintiff

must demonstrate that a state employee’s discriminatory actions are representative of an official policy or custom of the municipal institution, or are taken by an official with final policy making authority. To subject a governmental en *1187 tity to liability, “a municipal policy must be a ‘policy statement, ordinance, regulation, or decision officially adopted and promulgated by. [a municipality’s] officers.’ ” Absent such an official policy, a municipality may also be held liable if the discriminatory practice is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”

Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249 (10th Cir.1999) (internal citations omitted). Nevertheless, the Tenth Circuit has stated that “a failure to prevent sexual harassment by a student before it occurs does not violate ... the Fourteenth Amendment absent a showing of an institutional policy of indifference. However, a refusal to remedy known sexual harassment is actionable.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1250 n. 9 (emphasis in original).

Because a plaintiff must show that he or she was subjected to an adverse employment action to prevail on an Equal Protection claim, “[c]ourts use the same standard for adverse employment actions under Equal Protection claims and Title VII claims.” Gerald v. Locksley, 785 F.Supp.2d at 1107. Accord Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1227 (10th Cir.2007) (“ ‘In disparate-treatment discrimination suits, the elements of a plaintiffs case are the same whether that case is brought under §§ 1981 or 1983 or Title VII.’ ”)(quoting Maldonado v. City of Altus, 433 F.3d 1294, 1307 (10th Cir.2006), overruled on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 53 , 126 S.Ct. 2405 ). For example, in McCrary v. Aurora Pub. Sch., after the Tenth Circuit held that a plaintiffs ADEA and ADA claims failed because she failed to show that she was subject to an adverse employment action, the Tenth Circuit summarily dismissed her Equal Protection claim:

As to Ms. McCrary’s claim that her right to equal protection was violated when she was not considered for a fourth-grade classroom position and instead was transferred .to a CST position, we have already concluded that neither of those actions constituted an adverse employment action [under the ADA or the ADEA], and Ms. McCrary has not otherwise shown that they gave rise to an injury for purposes of § 1983.

57 Fed.Appx. 362, 373 (10th Cir.2003). See, e.g., Williams v. New York City Hous. Auth., 335 Fed.Appx. 108 , 110 (2d Cir. 2009) (affirming dismissal of plaintiffs Equal-Protection claim, stating: “Neither NYCHA’s denial of Williams’s request for a leave of absence, nor its deduction of a small amount from her salary, nor its issuance of two counseling memoranda constituted an adverse employment action.”)(citing Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 86 (2d Cir.2001) (addressing adverse employment actions in the Title VII context), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-14 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002); Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 641 (2d Cir.2000) (noting that the alleged adverse action in ADEA case must result in a “change in responsibilities so significant as to constitute a setback to plaintiffs career”)); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008) (“These elements also apply to a [Equal Protection] claim of race discrimination under § 1983 because the analysis of disparate treatment claims under § 1983 is identical to the analysis under Title VII where the facts on which the claims rely are the same.”); Watson v. City of Cleveland, 202 Fed.Appx. 844, 856 (6th Cir.2006) (employing the same adverse-emplojunent-action standard for Title VII and Equal Protection claims, stating: “Proving intentional discrimination for an equal protection claim brought un *1188 der § 1983 requires the plaintiff to make the same showing required to prove a violation of Title VII.”)(citing Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988)); Patterson v. Cnty. of Oneida, 375 F.3d 206 , 225 (2d Cir.2004) (noting that substantive standards for claims under Title VII also apply to discrimination claims under the Equal Protection Clause); Herts v. Smith, 345 F.3d 581 , 588 (8th Cir.2003) (“To make out a prima facie case of discrimination under the Equal Protection Clause of the Fourteenth Amendment, or under Title VII, a plaintiff need show only that she is a member of a protected class, was qualified for her position, and suffered an adverse employment action.”). See also McPhaul v. Bd. of Comm’rs of Madison Cnty., 226 F.3d 558 , 566 n. 6 (7th Cir.2000) (“Because section 1983 claims generally follow ‘the contours of Title VII claims,’ we will apply the same ‘hostile environment’ standard that is applied in Title VII cases.” (citing King v. Bd. of Regents of Univ. of Wis. Sys., 898 F.2d 533 , 537 (7th Cir.1990))).

2. The Similarly Situated Individual Pleading Requirement for Class-of-One Claims or Claims Based on Membership in a Non-Protected Class.

“Equal protection jurisprudence has traditionally been concerned with governmental action that disproportionally burdens certain classes of citizens.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215-16 (10th Cir.2011). A plaintiff alleging disparate-treatment discrimination based on membership in a non-protected class or in a class of one must therefore allege in the complaint that similarly situated persons were treated differently. See Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir.2011) (“The pleading requirement of an allegation that a similarly situated person was treated differently applies both when the plaintiff challenges a government action that discriminates based on membership in a non-protected class, or membership in a ‘class of one.’ ”)(internal citations omitted)(citing Price-Cornelison v. Brooks, 524 F.3d 1103, 1120 (10th Cir.2008); Kansas Penn Gaming, LLC v. Collins, 656 F.3d at 1216 ). As the Supreme Court set forth in Village of Willowbrook v. Olech, 528 U.S. 562 , 120 S.Ct. 1073 , 145 L.Ed.2d 1060 (2000), however, a plaintiff may also bring a class-of-one equal-protection claim, alleging that the plaintiff “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U.S. at 564 , 120 S.Ct. 1073 (citing Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441 , 43 S.Ct. 190 , 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Cnty. Comm’n of Webster Cnty., 488 U.S. 336 , 109 S.Ct. 633 , 102 L.Ed.2d 688 (1989)). Similarly, discrimination against members of a non-protected class, such as White-Anglos, violates equal protection. See McDonald v. Santa Fe. Trail Transp. Co., 427 U.S. 273, 279-80 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976) (holding that Title VII “proscribe^] racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites.”); Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 676 , 103 S.Ct. 2622 , 77 L.Ed.2d 89 (1983) (extending this proposition to Equal Protection Clause violations); Reynolds v. Sch. Dist. No. 1, Denver, 69 F.3d 1523 , 1532 & n. 10 (10th Cir.1995) (recognizing that the Equal Protection Clause proscribes discrimination against White-Anglos).

The Tent Circuit has noted: “ ‘The paradigmatic ‘class of one’ case, sensibly conceived, is one in which a public official, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelat *1189 ed to his public duties), comes down hard on a hapless private citizen.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d at 1216 (internal alteration omitted)(quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.2005)). “Successful claims have arisen from unfavorable zoning decisions, withholding of permits, and selective regulatory enforcement.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d at 1216 (internal citations omitted). The Supreme Court has held, however, that “the class-of-one theory of equal protection has no application in the public employment context.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 607-08 , 128 S.Ct. 2146 , 170 L.Ed.2d 975 (2008) (reasoning that “an allegation of arbitrary differential treatment could be made in nearly every instance” of a personnel decision by the government, and “government offices could not function if every employment decision became a constitutional matter”). See Kelley v. City of Albuquerque, 542 F.3d 802, 821 (10th Cir.2008) ( “[T]he class-of-one theory is not legally cognizable where ... a public employee claims that she has been treated differently than other employees.”); Duprey v. Twelfth Judicial Dist. Court, No. CIV 08-0756 JB, 2009 WL 2105955 , at *5 (D.N.M. June 22, 2009) (Browning, J.)(“In this case, Duprey, who is a public employee, is alleging that she was denied a promotion and was demoted. Because her lawsuit arises in the public-employee context, she cannot proceed on the class-of-one theory.”).

Moreover, in these class-of-one claims, where discrimination is not alleged against a class of persons, “[t]he allegation that a plaintiff was treated differently from those similarly situated is an essential element of an equal protection action.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir.1998) (holding that the plaintiff who alleged he “was subjected to discipline and a disciplinary proceeding not applicable to any other police officer under the Collective Bargaining Agreement,” but not alleging any class-based discrimination, failed to state a claim, as the “Plaintiff did not show how he was treated differently from other's similarly situated” (emphasis added))(citing Norton v. Vill. of Corrales, 103 F.3d 928 , 933 (10th Cir.1996)). In Norton v. Vill. of Corrales, for instance, where the Tenth Circuit, found that “it is clear that they are not claiming unequal treatment on the basis of race, sex or other classifications which require heightened scrutiny,” the Tenth Circuit dismissed the complaint, noting that the “Plaintiffs did not explicitly allege they were treated differently from similarly situated persons or corporations.” 103 F.3d at 933 (emphasis added).

The Court has quoted this proposition of law — “[t]he allegation that a plaintiff was treated differently from those similarly situated is an essential element of an equal protection action,” Hennigh v. City of Shawnee, 155 F.3d 1249—in the § 1983 employment-discrimination context where the plaintiff alleged that the defendant discriminated against him based on his race. See Gerald v. Locksley, 785 F.Supp.2d at 1085, 1133 . The Court in that case had before it an equal protection claim which was, at least in part, a class-of-one equal protection claims, and the cases upon which the Court relied were limited to class-of-one equal-protection claims. See Gerald v. Locksley, 785 F.Supp.2d at 1133 (“Gerald’s failure to allege that he was treated differently than others similarly situated also defeats his Equal-Protection claim.”)(citing Marino v. Mayger, 118 Fed.Appx. 393, 399 (10th Cir.2004) (unpublished)(upholding court’s dismissal of the plaintiffs’ class-of-one claim for the plaintiffs’ failure to “specifically allege that the sheriff treated them, differently from similarly situated landowners” by refusing to *1190 “enforce the restraining orders” against the defendants); Jennings v. City of Stillwater, 383 F.3d 1199, 1213 (10th Cir.2004) (upholding summary judgment in favor of defendants on the plaintiffs class-of-one equal-protection claim, noting that “she failed to make an adequate showing that similarly situated individuals were treated differently”)).

The Tenth Circuit has adhered to the proposition that, at the summary judgment stage, class-based disparate-treatment discrimination claims are subject to the same legal analysis whether based on an equal-protection violation or Title VII violation. See e.g., Etsitty v. Utah Transit Auth., 502 F.3d at 1227 (“In disparate-treatment discrimination'suits, the elements of a plaintiffs case are the same whether that case is brought under §§ 1981 or 1983 or Title VII.”)(quoting Maldonado v. City of Altus, 433 F.3d at 1307 ). Showing disparate treatment of similarly situated individuals, while necessary for class-of-one claims and claims where the plaintiff is not a protected-class member, and while sufficient evidence of discrimination to meet the McDonnell Douglas Corp. v. Green class-based prima facie case, is not necessary for class-based equal protection claims. See Sorbo v. United Parcel Serv., 432 F.3d at 1173 (noting that the McDonnell Douglas Corp. v. Green class-based prima facie case requirement that the adverse action be taken in circumstances giving rise to an inference of discrimination “may be (and often is) satisfied by proof that the employer treated similarly situated employees more favorably, such proof is just one sufficient means to do this and should not itself be mistaken as an indispensable element of the prima facie case”). Accordingly, it is also not necessary, for a plaintiff in a protected class pleading a class-based equal protection claim, to allege that similarly situated individuals were treated differently.

LAW REGARDING THE NMHRA

The NMHRA makes it an unlawful discriminatory practice for

an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided,' however, that 29 U.S.C. Section 631 (c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity!.]

N.M.S.A.1978, § 28-1-7(A). The NMHRA allows individuals to bring a lawsuit in the appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill, 117 N.M. 380, 382 , 872 P.2d 353, 355 (1994). The NMHRA provides:

A person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred or where the respondent does business by filing a notice of appeal within ninety days from the date of service of the [New Mexico Human Rights] commission’s order.

N.M.S.A.1978, § 28-1-13(A). Cf. Bates v. N.M. Corr. Dep’t, No. CIV 08-1013, 2010 WL 4339367 , at *7 (D.N.M. Sept. 30, 2010) (Browning, J.)(“NMHRA claims must be administratively exhausted before being brought in federal court.”).

*1191 The Supreme Court of New Mexico applies the framework that the Supreme Court of the United States established in McDonnell Douglas Corp. v. Green “[w]hen considering a violation of the NMHRA.” Juneau v. Intel Corp., 139 N.M. 12, 15 , 127 P.3d 548, 551 (2005). The Supreme Court of New Mexico has stated that, “when considering claims under the NMHRA, we may look at federal civil rights adjudication for guidance in interpreting the NMHRA. Our reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that we have adopted federal law as our own.” Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 23 , 135 N.M. 539 , 91 P.3d 58 (internal quotation marks omitted) (citations omitted).

While New Mexico uses federal law to interpret the NMHRA, there may be two ways in which the NMHRA is broader than federal law. First, as this Court has-previously acknowledged, the Supreme Court of New Mexico allows for personal liability under the NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. 08-0756 JB, 2009 WL 2482170 , at *7 (D.N.M. July 28, 2009) (Browning, J.). The NMHRA defines “employer” as “any person employing four or more persons and any person acting for an employer.” N.M.S.A.1978, § 28-1-2(B). While acknowledging that there is' generally no personal liability under Title VII, the Supreme Court of New Mexico has “reject[ed] the proposition that there can exist no individual liability under the NMHRA.” Sonntag v. Shaw, 2001-NMSC-015, ¶ 13 , 130 N.M. 238 , 22 P.3d 1188 . In Sonntag v. Shaw, a defendant relied on Title VII case law to argue that employees cannot sue the owner of a corporation in the owner’s individual capacity under the NMHRA. See 2001-NMSC-015, ¶ 13 , 130 N.M. 238 , 22 P.3d 1188 . Although it held that the defendant could

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