The opinion of the court was delivered by: Lorenzo F. Garcia United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants' Motion for Summary Judgment and Memorandum in Support. [Doc. 42]. Plaintiff Antonio Martinez ("Martinez") responded and Defendants replied. [Doc. Nos. 46, 52.] After careful consideration of the pleadings, attachments, and pertinent law, the Court determines that the motion for summary judgment should be granted in part and denied in part.
PROCEDURAL AND FACTUAL BACKGROUND
On March 25, 2009, Martinez filed a complaint in state court against Office Depot and two individual defendants*fn1 alleging national origin and age discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New Mexico Human Rights Act ("HRA"), and the Age Discrimination in Employment Act of 1967 ("ADEA").*fn2
Martinez also brought state law claims of breach of employment contract and wrongful termination against Defendants and requested an award of punitive damages. [Doc. 1, Attached Complaint.] On April 29, 2009, Defendants removed the case to federal court. [Doc. 1.]
Defendants' motion for summary judgment argues there are no genuine issues of fact regarding any of the remaining claims and that they are entitled to summary judgment as a matter of law. [Doc. 42.] Martinez contends, inter alia, that he met his prima facie burden as to the discrimination claims and provided sufficient evidence of pretext to raise a genuine issue of fact for trial. In addition, Martinez asserts genuine issues of material fact exist as to the state law claims and his request for punitive damages. [Doc. 46, p. 24.]
Summary Judgment Standard Summary judgment will be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Int'l, Inc. v. First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).
The party seeking summary judgment has an "initial burden to show that there is an absence of evidence to support the nonmoving [sic] party's case." Muñoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (citation omitted). Upon meeting that burden, the non-moving party must "identify specific facts that show the existence of a genuine issue of material fact." Id.
The opposing party may not rest upon mere allegations and denials in the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the non-moving party." Id. at 249-50. Mere assertions, conjecture, or the existence of a scintilla of evidence in support of the non-movant's position, are not sufficient to show a genuine issue of material fact; an issue of material fact is genuine only if the non-movant presents facts such that a reasonable jury could find in favor of the non-movant. Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006) (citations and quotations omitted).
Where a plaintiff relies on circumstantial evidence to prove discrimination, as is the case here, the Court applies the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).*fn3 Under McDonnell Douglas, Plaintiff first must establish a prima facie showing of discrimination. Id. at 802. If Plaintiff satisfies this showing, the burden of production shifts to Defendants to state a legitimate, non-discriminatory reason for the adverse employment action. If Defendants meet this burden, then summary judgment is warranted in their favor, unless Plaintiff shows the existence of a genuine issue of material fact regarding whether the proffered reasons were pretextual. DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1162 (10th Cir. 2009).
A plaintiff can demonstrate pretext by producing evidence of "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its [adverse] action [such] that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002) (internal citation omitted). "The relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs." Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (internal citation omitted). The Court's "role is to prevent unlawful [employment] practices, not to act as a 'super personnel department' that second guesses employers' business judgments." Simms v. Okla. ex rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.) (internal citation omitted), cert. denied, 528 U.S. 815 (1999). However, "[t]here may be circumstances in which a claimed business judgment is so idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext for illegal discrimination." Beaird v. Seagate Tech., 145 F.3d 1159, 1169 (10th Cir.), cert. denied, 525 U.S. 1054 (1998).
In July 1993, Martinez began his employment with Office Depot in El Paso, Texas. [Doc. 12, Stipulations, p. 2.] Martinez is Hispanic and was born October 12, 1954. He was 53 years old when he was terminated on April 25, 2008. At the time of termination, Martinez was an Assistant Store Manager at Office Depot's Cerrillos Road location in Santa Fe, New Mexico. He had been an Assistant Store Manager for about six years in two different Office Depot locations in Santa Fe.
Office Depot employed Martinez for fifteen years before he was terminated. During his last 10 years of employment with Office Depot, including his tenure as assistant manager, Martinez was never disciplined until his termination. Moreover, he received favorable job appraisals during his employment with Office Depot.*fn5
Office Depot provides a customer incentive program whereby customers earn store credit based on purchases made at Office Depot. The store credit is given in the form of a Rewards Card that customers may apply towards future purchases at Office Depot. [Doc. 42, p. 2, n. 1.]*fn6 Office Depot also offers prepaid gift cards.*fn7 The card in question was either a Rewards Card, gift card, or perhaps a returned merchandise card. [Doc. 42, p. 2. n. 2.] From time to time, customers may inadvertently leave their Rewards Cards or other gift/money cards on the counter, or perhaps a store associate forgets to return the card to the customer. These cards that remain unclaimed at the store are kept in the store manager's office in a cash drawer. There is no evidence indicating that customers who lose or misplace cards are called or that their cards are mailed back to them.
On a prior occasion, in an effort to placate an upset customer, Steve Makelki, Martinez's former manager, instructed Martinez to use "a lost or unclaimed money card" to satisfy that customer. [Doc. 46, Martinez Aff., at ¶ 12.]
In March 2008, an upset Office Depot customer called Martinez concerning the amount of credit she had received on her Office Depot Rewards Card.She claimed she was not credited sufficiently; it is unknown how much credit she claimed or believed she was owed. Martinez asked the customer to come to the store and advised her that he might be able to give her a $50 in-store credit. When she later came to the store,*fn8 the customer sought to purchase a $17.00 rubber stamp. She advised the employee assisting her that Martinez had informed her he would provide her with in-store credit. When the employee checked with Martinez, he instructed the employee to use an unclaimed money card being kept in the cash office at the store for the customer's purchase, just as manager Makelki previously directed Martinez to use an unclaimed money/rewards card to satisfy another customer. The card at issue did not belong to the customer who wished to purchase the rubber stamp. Instead, the card apparently had been left at the store and was unclaimed.
Martinez states the money card had been in a cash drawer in the store office for four or five months prior to its use in March 2008, or perhaps as long as one year. Defendants stated the card "was being stored for safekeeping in petty cash . . . ." or in the "cash office." [Doc. 52, p. 7; Doc. 42, p. 2.]
Before authorizing the employee to use the money card for the customer, Martinez confirmed that the customer had a Rewards Card. He did not verify the amount of credit the customer received or was owed before authorizing the use of the unclaimed money card to buy the $17.00 stamp.*fn9 Martinez was able to resolve the customer's concerns about store credit by using the unclaimed money card to credit the customer's purchase of the rubber stamp.
Travis Todd ("Todd"), who was 29 years old, was hired as Martinez's store manager shortly before Martinez authorized the use of the money card to the customer. When Todd learned of Martinez's instruction to use the money card to pay for the customer's $17.00 stamp, Todd reported the incident to Office Depot's Loss Prevention Department. Loss Prevention conducted an investigation.
Martinez acknowledged that he made a statement near the time he was terminated that he should have partnered with a store manager before authorizing the use of the unclaimed money card. On the date of his termination, he also admitted it was wrong to instruct an employee to use an unclaimed money card to credit another customer. Martinez took responsibility for his actions in authorizing use of the unclaimed money card.
Martinez asserts that he made these acknowledgments or apologies in an attempt to prevent his termination. He told Office Depot he would consult with his store manager in the future to avoid the situation that occurred.
Loss Prevention reported the findings to Robert Grant ("Grant"), the store's District Manager, and to Monica Wilson ("Wilson"), the store's Regional Human Resources Manager. After reviewing the results of the investigation, Grant and Wilson decided to terminate Martinez for misuse of the money card. It is undisputed that Martinez obtained no benefit from the improper use of the unclaimed money card save for resolving a customer complaint.
There is a dispute as to whether Todd, the new store manager, took part in the termination decision. For some reason, Defendants deny that Todd participated in the decision. However, in their answers to interrogatories, Defendants included Todd, Grant, and Wilson as the individuals responsible for the termination decision. [Doc. 46, Ex. 6.] Further, Wilson testified that Todd made the recommendation to terminate Martinez.
After Martinez was terminated it is disputed whether his replacement as assistant manger was a 32 year old white male*fn10 or a 40 year old African American male. It is undisputed, however, that the position of Assistant Store Manager was not eliminated after Office Depot terminated Martinez.
Defendants claim there was other "questionable ethical behavior" exhibited by Martinez on several earlier occasions. However, the Court does not consider the alleged conduct to be material to the summary judgment motion based on Defendants' explanation that Martinez was terminated for misuse of the money card.
Defendants state it was misconduct for Martinez to authorize use of the unclaimed money card for the customer in question. The cited depositions transcripts do not always describe Martinez's use of the money card as actual "misconduct," although admittedly Martinez authorized use of one unknown customer's unclaimed money card for a different customer's $17.00 purchase.
Defendants assert that Office Depot has consistently terminated other employees for unauthorized and fraudulent use of a money card, regardless of the amount. Martinez disputed this material fact, and the deposition testimony supports Martinez's position that it was unclear if Office Depot ever terminated an employee who used an unclaimed money card to credit another customer. If an employee was terminated for unauthorized use of a money card, typically it occurred when an employee used a money card for his or her own benefit.
Under Office Depot's written policies and procedures, misuse or fraudulent use of a cash/rewards card is a serious offense that can result in an employee's termination.
In November 1999, Office Depot revised its "Performance Improvement Process." [Doc. 46, Ex. 7.] The scope of the Performance Improvement Process was directed to "[a]ll associates of Office Depot, Inc." The "Performance Improvement Process" states, in part, that Office Depot "reserves the right to use some or all of the following forms of discipline: verbal counseling, Performance Improvement Process or immediate termination." [Id.] The provision also notes that some types of serious misconduct can result in immediate termination without previous warning, including dishonesty of any kind and misappropriation of money or supplies. The process sets forth steps in performance improvement planning, including verbal counseling and a performance improvement plan.
In September 1996, Martinez signed an "Associate Acknowledgment Form," which states, in part:
I have entered into my employment relationship with Office Depot voluntarily and acknowledge that there is no specified length of employment. Accordingly, either I or Office Depot can terminate the relationship at will, with or without cause, at any time, with or without notice.
Furthermore, I acknowledge that this Handbook is neither a contract of employment nor a legal document. . . . [Doc. 42, Ex. 42-2, A-1.]
Office Depot's policy regarding at-will employment is included in its manual's or handbook's provision regarding "Termination of Employment." [Doc. 42, Ex. 42-2, A-2.] That ...