United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
KHALSA UNITED STATES MAGISTRATE JUDGE
14, 2017, Plaintiff filed a nineteen-count Complaint under
the Age Discrimination in Employment Act, Title VII, 42
U.S.C. § 1983, the New Mexico Whistleblower Protection
Act, the New Mexico Human Rights Act, and New Mexico common
law alleging that Defendants illegally discriminated against
him based on his age and national origin and retaliated
against him for complaining about the discrimination. This
matter is before the Court on Defendants' Motions to
Dismiss (Doc. 57) and for Summary Judgment (Doc. 58), filed
on July 31, 2018, in which Defendants seek dismissal of or
summary judgment as to each of Plaintiff's
claims. (Docs. 57, 58.) Having reviewed the
parties' submissions, the record, and the relevant law,
and for the reasons that follow, the Court finds that
Defendants' Motion to Dismiss should be GRANTED IN PART
and DENIED IN PART, and that Defendants' Motion for
Summary Judgment should be GRANTED IN PART and DENIED IN
Alejandro Gonzalez-Aller earned a bachelor's degree in
math in 1986; in 1992 he earned a master's degree in
math; in 1994 he earned a master's degree in nuclear
engineering; and in 2001, he earned a Ph.D. in engineering.
(Doc. 69-12 at 1.) Plaintiff was born in Spain in 1953. (Doc.
58 at 29.) From 2013 to 2016, Plaintiff applied for four
full-time math instructor positions at Central New Mexico
Community College (“CNM”). This lawsuit
arises from the fact that Plaintiff was not selected to fill
any of these positions. (Doc. 1 at ¶¶ 19, 27, 31,
42.) In 2013, when he applied for the first position at issue
in this lawsuit, Plaintiff had 23 years of teaching
experience, including 17 years teaching at CNM as a part-time
instructor. (Id. at 1-2.) Plaintiff also
taught at Northern New Mexico College, in Espanola, New
Mexico, from 1992 to 2013, at which institution he held
several positions, including associate professor of
mathematics, dean of the math and science department, and
chair of the math and science department. (Id. at
conducts its review of applications for full-time faculty
positions in stages. The first stage is a “minimum
requirements” or first-level screen at which a hiring
committee considers whether the applicant possesses the
essential job-related skills the position requires. (Doc.
69-3 at 4; Doc. 69-7 at 5-7; Doc. 69-29 at 4.) The second
stage is a “preferences” or second-level screen
at which the committee is to consider specified knowledge,
skills, and abilities that add value to a candidate and make
the candidate more competitive. (Id.) A candidate
who passes the minimum requirements and preferences screens
associated with a given position is eligible to be considered
for the third stage interview by the hiring committee. (Doc.
58 at 35.) Due to the high volume of applications CNM
receives for each full-time teaching vacancy, not every
qualified candidate receives an interview; instead, the
hiring committee is instructed to interview candidates with
the highest scoring preference screens. (Doc. 58 at 37; Doc.
69-3 at 3-4; Doc. 69-5 at 3; Doc. 69-7 at 4-6.) The committee
interview format includes both questions and a teaching
demonstration, and the committee picks the person (or
persons) who perform best in their answers and teaching
demonstration to forward to the dean as
finalist(s). The dean performs a fourth stage interview
of the finalist(s) before making a final hiring
decision. (Doc. 69-3 at 4; Doc. 69-7 at 5-7; Doc.
69-29 at 4.)
committees are comprised of CNM faculty members who volunteer
to participate. (Doc. 69-5 at 2.) The committees rate and
recommend candidates, but ultimately, the dean is empowered
to make the final selection. (Id. at 4; Doc. 69-17
at 2.) Hiring committee members are instructed to consider
each applicant, including internal applicants who are current
CNM employees, based solely on the applicant's
application materials and interview. (Doc. 69-5 at 3.)
Applications from internal candidates are supposed to be
screened as if the committee does not know the applicant.
(Doc. 69-32.) During the screening process, committee members
are not to consider their personal knowledge of an applicant,
or student and peer evaluations of current CNM employees.
(Doc. 69-5 at 3.) According to CNM's Employee Handbook,
“[i]n filling job vacancies, preference will be given
to current [CNM] employees when qualifications and experience
are relatively equal in the judgment of management personnel
who make the selections.” (Doc. 69-3 at 4; Doc. 69-6 at
3, 4.) However, “[t]he offer of part-time employment is
not to be presumed or construed as indicating any commitment
to a full-time position, or to extend beyond the period of
the initial terms of employment.” (Doc. 69-6 at 5.)
January 17, 2013, Plaintiff applied for position 0601542.
(Doc. 69-2.) The minimum requirements for this position
included a master's degree in math or a closely related
field from an accredited institution, two years of recent
experience teaching math at the post-secondary or secondary
level, and demonstrated excellent written and verbal
communication. (Doc. 58 at 39.) The job posting also
indicated several preferences related to teaching experience
and abilities and noted that the interview would include a
teaching demonstration. (Id. at 39-40.) The hiring
committee, of which Defendant Carman was one of ten members,
interviewed Plaintiff for this position but he was not hired.
(Id. at 37; Doc. 76 at 28.) Rich Calabro selected
two applicants, both white, to fill this position-David
Heddens, who was 45 years old, and Ella Sitkin, who was 62
years old. (Doc. 58 at 37, 46; Doc. 69-24 at 4; Doc. 76 at
December 16, 2013, Plaintiff applied for position 0601976.
(Doc. 69-2.) The record before the Court does not contain a
copy of the job posting for this position; however, Defendant
Cornish testified that Plaintiff was “qualified in the
sense that he passed through the preferences screening and
got an interview, ” and Plaintiff does not dispute this
testimony. (Doc. 69-29 at 5.) A hiring committee interviewed
Plaintiff for this position, and he was one of three
applicants the committee forwarded to Defendant Cornish for
final consideration. (Doc. 69-31.) The committee members gave
the first finalist, David Blankenbaker, a total interview
score of 35; they gave Plaintiff a total interview score of
17; and they gave the third finalist a total interview score
of 15. (Doc. 69-31.) Defendant Cornish selected Mr.
Blankenbaker, a 46-year-old white male, to fill the position.
(Doc. 69-26; Doc. 69-27 at 2; Doc. 69-29 at 4.) When Mr.
Blankenbaker declined the offer of employment, Defendant
Cornish closed the position without selecting another
applicant from the finalist pool. (Doc. 69-29 at 4-5.)
January 19, 2015, Plaintiff applied for position 0602431.
(Doc. 69-2.) Plaintiff passed the minimum requirements screen
but not the preference screen for this position, and the
hiring committee, of which Defendants Cornish and Carman were
members, did not interview him. (Doc. 58 at 51, 55; Doc.
69-2; Doc. 69-4.) The minimum requirements for this position
included a master's degree in math or a closely related
field, and at least two years of teaching experience at the
college level. (Doc. 58 at 48.) The preferences included a
Ph.D. in math, and experience in specified educational
methods. (Id.) In his application for position
0602431, Plaintiff responded “Yes” to the
question, “[d]o you possess a Ph.D. in
Mathematics?” (Id. at 60.) However, his cover
letter, resume, and transcripts reflected that he has a
master's degree in math, a master's degree in nuclear
engineering, and a Ph.D. in engineering. (Doc. 69-11 at 1;
Doc. 69-12 at 1; Doc. 69-16 at 3.) A “preference
screen” summary for this position indicated that
Plaintiff's “degree claims” were
“inaccurate.” (Doc. 58 at 51.) Defendant Cornish
selected two applicants to fill the position: Charles
Mundy-Castle, a 40-year-old white male, and Kenneth Anglin, a
28-year-old white male. (Doc. 58 at 61-62; Doc. 67-7 at 5;
Doc. 69-38.) Mr. Mundy-Castle has a master's degree in
math, and Mr. Anglin has a master's degree in applied
math. (Doc. 69-36; Doc. 69-28.) At the time, neither Mr.
Mundy-Castle nor Mr. Anglin had a Ph.D. (Id.; Doc.
January 14, 2016, Plaintiff applied for position 0602805.
(Doc. 69-2.) The minimum requirements for this position
included a master's degree in math, or in a closely
related field with at least 18 credit hours of graduate-level
math or statistics, and at least two years of teaching
experience at the college level. (Doc. 69-42 at 2.) The
listed preferences included a Ph.D. in math or statistics.
(Id.) The hiring committee, of which Defendant
Cornish was a member, did not interview Plaintiff for this
position. (Doc. 69-2; Doc. 69-45.) An “Applicant
List” attached to Plaintiff's summary judgment
response indicates that Plaintiff “[d]id not meet
preferred qualifications” for this position. (Doc.
69-43 at 1.) Lane McConnell, the applicant Defendant Cornish
selected to fill it, was a 32-year-old white male. (Doc.
69-43 at 2; Doc. 69-33 at 2.) Mr. McConnell has a Ph.D. in
applied mathematics. (Doc. 69-33 at 5.) At the time, Mr.
McConnell's college-level teaching experience included
six semesters as an instructor of record, and nine quarters
as a teaching assistant. (Id.) He was employed as an
instructor at UNM from August 2013 through January 5, 2016,
the date he applied for position 0602805. (Id. at 8;
Doc. 69-43 at 2.)
DEFENDANTS' MOTION TO DISMISS
Rule of Civil Procedure 12 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). In
deciding a motion to dismiss under Rule 12(b)(6), the Court
must determine whether the plaintiff's complaint
“contain[s] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In undertaking this analysis, the Court
considers the complaint as a whole and construes all
well-pled allegations in the light most favorable to the
plaintiff. Nakkhumpun v. Taylor, 782 F.3d 1142, 1146
(10th Cir. 2015). “Well-pled” means that the
allegations are “plausible, non-conclusory, and
non-speculative.” Dudnikov v. Chalk & Vermilion
Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Courts
“disregard conclusory statements and look only to
whether the remaining . . . factual allegations plausibly
suggest the defendant is liable.” Mocek v. City of
Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015).
Motion to Dismiss pertains to Defendants Cornish, Carman, and
Manning in their individual capacities. (Doc. 57 at 1.)
To the extent Defendants' motion seeks to dismiss
Plaintiff's Title VII claims against these Defendants,
the motion will be denied as moot because, as Plaintiff's
Complaint indicates and his Response confirms, he asserts his
Title VII claims against Defendant CNM only. (Doc. 1 at
11-13; Doc. 57 at 3-4; Doc. 70 at 2.) To the extent
Defendants' motion seeks to dismiss Plaintiff's NMWPA
claims against these Defendants, however, the motion will be
granted. Although Plaintiff contends in his response that
Defendant CNM “is the sole liability target” of
his claims brought under this statute, in his Complaint
Plaintiff's intended target is not so clear.
(See Doc. 1 at 30 ¶ 189 (“The retaliatory
acts of Defendants constitute violations of the
[NMWPA].”) (emphasis added).) Moreover, by his failure
to make any substantive argument on this point, Plaintiff
appears to concede the validity of Defendants' argument
that the NMWPA “does not permit a public employee to
assert a claim against a state officer in his or her
individual capacity.” (Doc. 57 at 4 (quoting Flores
v. Herrera, 2016-NMSC-033, ¶ 1, 384 P.3d 1070).)
their motion, Defendants also seek dismissal of
Plaintiff's Section 1983 claims against Defendant Manning
on the ground that Plaintiff's Complaint does not
sufficiently allege Defendant Manning's personal
participation in, or direct personal responsibility for, the
alleged deprivation of Plaintiff's constitutional rights.
(Doc. 57 at 4-5.) In support of this argument, Defendants
cite Trujillo v. Williams, 465 F.3d 1210, 1227 (10th
Cir. 2006), for the proposition that “a defendant's
direct personal responsibility for the claimed deprivation of
a constitutional right must be established” before he
may be held liable for such deprivation under Section
1983. See also Bertolo v. Benezee, 601
Fed.Appx. 636, 638 (10th Cir. 2015) (to state claim under
Section 1983, plaintiff must allege that “each
defendant personally participated” in a constitutional
deprivation); Nasious v. Two Unknown B.I.C.E. Agents, at
Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th
Cir. 2007) (“[T]o state a claim in federal court, a
complaint must explain what each defendant did to him or her;
when the defendant did it; how the defendant's action
harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.”). In
response, Plaintiff points to several paragraphs of his
Complaint in which he alleges wrongful conduct by
“Defendants” and “all Defendants, ”
which references, he argues, necessarily include Defendant
Manning. (Doc. 70 at 2.) Plaintiff asserts that the absence
of Defendant Manning's name in these paragraphs does not
warrant dismissal of Plaintiff's claims against him based
on Trujillo, for the simple reason that the terms
“Defendants” and “all Defendants, ”
construed in Plaintiff's favor, include Defendant
Plaintiff included any basic factual allegations regarding
how Defendant Manning, in particular, was involved in
“Defendants'” alleged wrongful conduct, the
Court would be inclined to agree. In his complaint, however,
Plaintiff does not even allege by whom Defendant Manning is
or was employed, or his job title or general
responsibilities, much less what specific actions he
personally took to violate Plaintiff's Fourteenth
Amendment right to equal protection. (See generally
Doc. 1.) The sole allegation that identifies Defendant
Manning separate and apart from the other defendants in the
case merely states that he is a resident of Bernalillo
County. (Doc. 1 at 7.) This is grossly insufficient to state
a “plausible, non-conclusory, and
non-speculative” claim that Defendant Manning
personally participated in or had direct personal
responsibility for Defendant CNM's hiring decisions
regarding Plaintiff. Nonetheless, in the interest of judicial
efficiency and to avoid a futile motion to amend, as
discussed infra the Court grants Defendant Manning
summary judgment on Plaintiff's Section 1983 claims
against him on the basis of qualified immunity, rendering
moot Defendants' motion to dismiss these claims.
regard to the remaining NMHRA claims against Defendant
Manning, Defendants sought dismissal of these claims for the
first time in their reply. (Compare Doc. 57 at 4-5
with Doc. 77 at 3.) It would be unfair to permit
Defendants to sandbag Plaintiff by granting dismissal based
on a request raised for the first time in a reply. There is
no reason why Defendants could not have made this argument in
their opening brief, and their failure to do so is sufficient
reason to deny their motion. Nonetheless, the Court notes
that Plaintiff's Complaint is utterly devoid of
allegations specific to Defendant Manning and in this regard
apparently fails to state any claim on which relief could be
granted. This matter is scheduled for trial early next year,
and in the interest of judicial efficiency, the Court directs
Plaintiff to file a surreply opposing dismissal of the NMHRA
claims against Defendant Manning no later than 20 days after
entry of this Memorandum Opinion and Order. See Doebele
v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13
(10th Cir. 2003) (when movant includes new arguments in its
reply brief, court must either permit nonmovant to file
surreply or disregard new arguments); S.E.C. v.
Goldstone, 2014 WL 6065611 at *2 (D.N.M. 2014) (“A
surreply is appropriate and should be allowed where new
arguments are raised in a reply brief.”). If Plaintiff
does not surreply or otherwise seek timely relief from
dismissal of these claims, the Court will consider this as
Plaintiff's consent to dismissal and will enter an order
dismissing Plaintiff's NMHRA claims as against Defendant
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Legal Standards Governing Summary Judgment
judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Jones
v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th
Cir. 1999); Fed.R.Civ.P. 56(a). “A dispute is genuine
when the evidence is such that a reasonable jury could return
a verdict for the nonmoving party, and a fact is material
when it might affect the outcome of the suit under the
governing substantive law.” Bird v. W.Valley
City, 832 F.3d 1188, 1199 (10th Cir. 2016). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Atl. Richfield Co. v. Farm
Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.
2000). The content or substance of the evidence submitted for
or against a motion for summary judgment must be admissible
under the applicable rules of evidence. Argo v. Blue
Cross & Blue Shield of Kan, Inc., 452 F.3 1193, 1199
(10th Cir. 2006); Gross v. Burggraf Constr. Co., 53
F.3d 1531, 1541 (10th Cir. 1995) (unless an exception applies
and the evidence meets the reliability and trustworthiness
requirement, hearsay testimony cannot be considered relevant
to a motion for summary judgment).
movant bears the initial burden of demonstrating the absence
of a genuine issue of material fact and thus its entitlement
to judgment as a matter of law. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the
movant carries this initial burden, the burden shifts to the
nonmovant “to go beyond the pleadings and set forth
specific facts . . . from which a rational trier of fact
could find for the nonmovant.” Id. at 671. If
the nonmovant demonstrates a “genuine dispute” as
to material facts, the Court views those facts in the light
most favorable to him. Ricci v. DeStefano, 557 U.S.
557, 586 (2009). However, “a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff's Employment Discrimination
Exhaustion of Administrative Remedies
plaintiff's right to pursue a statutory employment
discrimination claim in federal court is “generally
limited by the scope of the administrative investigation that
can reasonably be expected to follow the charge of
discrimination submitted to the EEOC.” Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).
[T]he charge must contain facts concerning the discriminatory
and retaliatory actions underlying each claim; this follows
from the rule that each discrete incident of alleged
discrimination or retaliation constitutes its own unlawful
employment practice for which administrative remedies must be
Id. (citations and quotation marks omitted). Filing
a charge of discrimination with the EEOC identifying the
bases of a plaintiff's employment discrimination claims
is a condition precedent to suit, and failure to do so
“permits the employer to raise an affirmative defense
of failure to exhaust.” Lincoln v. BNSF Ry.,
900 F.3d 1166, 1185 (10th Cir. 2018).
Complaint references four instances in which he applied for a
full-time math instructor position at CNM but was not
selected. Plaintiff's Complaint alleges, and the record
reflects, that Plaintiff filed two charges of discrimination
with the EEOC: Charge No. 543-2015-1151 and Charge No.
543-2017-00237. (Doc. 1 at 2-3; Doc. 58 at 50; Doc. 69-7;
Doc. 69-40 at 1; Doc. 76 at 27.) The charge ending in 1151
concerned positions 0601542 and 0602431 and asserted
discrimination on the bases of age and national origin. (Doc.
58 at 50; Doc. 69-7.) The charge ending in 00237 concerned
position 0602805 and asserted discrimination on the bases of
age and national origin as well as unlawful retaliation.
(Doc. 69-43; Doc. 69-1 at 4; Doc. 69-43 at 1; Doc. 76 at 27.)
their motion, Defendants argue that the Court should grant
them summary judgment on Plaintiff's retaliation claims
under the ADEA, Title VII, and the NMHRA for failure to
exhaust administrative remedies regarding positions 0601542
and 0602431. (Doc. 58 at 16-17.) In his response to
Defendants' motion, Plaintiff concedes that he did not
exhaust his administrative remedies with respect to his
retaliation claims regarding “any application process
other than the 2016 process, ” i.e., the
process regarding position 0602805. (Doc. 69 at 32.) As such,
the Court will grant Defendants' motion for summary
judgment on Plaintiff's retaliation claims regarding
positions 0601542, 0601976, and 0602431.
The McDonnell Douglas Framework
absence of direct evidence of discrimination or retaliation,
courts analyze employment discrimination and retaliation
claims under Title VII, the ADEA, and the NMHRA, using the
basic burden-shifting framework the United States Supreme
Court established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). See O'Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996)
(assuming, without deciding, that circuit courts'
application of McDonnell Douglas framework to ADEA
claims is appropriate); Jones v. Okla. City Pub.
Schs., 617 F.3d 1273, 1278-79 (10th Cir. 2010) (Tenth
Circuit will continue to apply McDonnell Douglas
framework to ADEA claims despite Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 174 (2009), in which Supreme
Court noted that it “has never held that [McDonnell
Douglas] burden-shifting framework applies to ADEA
claims”); Smith v. FDC Corp., 787 P.2d 433,
436-37 (N.M. 1990) (“The evidentiary methodology
adopted [in McDonnell Douglas] provides guidance for
proving a violation of the [NMHRA].”); Lounds v.
Lincare, Inc., 812 F.3d 1208, 1233-34 (10th Cir. 2015)
(applying “the familiar three-part McDonnell
Douglas framework” to Title VII retaliation
the McDonnell Douglas framework, the plaintiff bears
the initial burden of establishing a prima facie case.
McDonnell Douglas Corp., 411 U.S. at 802. “The
prima facie case serves an important function in the
litigation: it eliminates the most common nondiscriminatory
reasons for the plaintiff's rejection[, ]”
Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-54 (1981), “including lack of
qualifications and an absence of a vacancy.” Beams
v. Norton, 256 F.Supp.2d 1203, 1213-14 (D. Kan. 2003);
see Int'l Bhd. of Teamsters v. United States,
431 U.S. 324, 358 n.44 (1977) (McDonnell Douglas
test is important because it requires plaintiff to offer
evidence that “his rejection did not result from the
two most common legitimate reasons on which an employer might
rely to reject an applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job
sought”). “The plaintiff's articulation of
his prima facie case may vary depending on the nature of the
claim.” Conroy v. Vilsack, 707 F.3d 1163, 1171
(10th Cir. 2013). However, the critical prima facie inquiry
in all cases is whether the plaintiff has demonstrated that
the adverse employment action occurred under circumstances
giving rise to an inference of unlawful discrimination or
retaliation. Id.; United States of America v.
Dental Dreams, L.L.C., 307 F.Supp.3d 1224, 1245 (D.N.M.
plaintiff establishes a prima facie case of discrimination or
retaliation, the burden shifts to the defendant, who is then
required to articulate some legitimate, nondiscriminatory or
nonretaliatory reason for its challenged decision/action.
McDonnell Douglas Corp., 411 U.S. at 802-03;
Lounds, 812 F.3d at 1234. If the defendant
articulates such a reason, the burden shifts back to the
plaintiff, who must then demonstrate that the stated reason
for the decision/action “was in fact pretext.”
McDonnell Douglas Corp., 411 U.S. at 804.
Plaintiff Has Not Met his Burden of Establishing a Prima
Facie Case of Retaliation Based on Defendants' Failure to
Hire Him for Position 0602805
ADEA and Title VII prohibit an employer from taking adverse
employment actions against an employee or applicant for
employment because he has opposed any employment practice
made unlawful by those Acts. 29 U.S.C. § 623(d) (ADEA);
42 U.S.C. § 2000e-3(a) (Title VII). Similarly, under the
NMHRA, it is unlawful for an employer to take an adverse
employment action against any person who has opposed a
discriminatory practice or who has filed a complaint related
to such a practice. N.M. Stat. Ann. § 28-1-7(I)(2). To
establish a prima facie case of retaliation, a plaintiff must
show that: (1) he engaged in protected opposition to
discrimination; (2) he suffered an adverse employment action;
and, (3) a causal connection existed between the protected
activity and the adverse employment action. Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (2008)
(ADEA); Ward v. Jewell, 772 F.3d 1199, 1202 (10th
Cir. 2014) (Title VII); Juneau v. Intel Corp.,
2006-NMSC-002, ¶ 23, 127 P.3d 548, 554-55 (NMHRA).
Regarding the third element, a causal connection may be
inferred when the adverse employment action closely follows
the protected activity in time. Ward, 772 F.3d at
1203. In the Tenth Circuit, an adverse employment action
occurring six weeks after the protected activity satisfies
the “closely follows” standard, whereas a lapse
of three months between the protected activity and the
adverse employment action, standing alone, does not.
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999) (declining to decide whether two-month lapse
between protected activity and adverse employment action
satisfies the “closely follows” standard). When
the adverse employment action does not closely follow the
protected activity in time, the plaintiff must present other
evidence tying the adverse employment action to the protected
activity. Ward, 772 F.3d at 1203. This evidence
“must be based on more than mere speculation,
conjecture, or surmise” and must support an inference
that, but for the plaintiff's protected activity, the
employer would not have taken the adverse employment action.
Mexico's appellate courts have neither accepted nor
rejected the Tenth Circuit's “closely
follows” standard in cases where the plaintiff relies
solely on temporal proximity to demonstrate causation.
Cf. Juneau, 2006-NMSC-002, ¶ 22, 127 P.3d at
554 (discussing but declining to apply Tenth Circuit's
temporal proximity standard to NMHRA retaliation claims
because plaintiff “presented other direct evidence of
causation, and did not rely on temporal proximity
alone”); see generally Ocana v. Am. Furniture
Co., 2004-NMSC-018, ¶ 23, 91 P.3d 58, 68
(“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.”) (internal quotation marks and citations
omitted). Whether the Tenth Circuit's temporal proximity
standard applies to a prima facie case of retaliation under
the NMHRA is thus unresolved, and neither side addressed this
issue in their briefing. But see, e.g., Laul v. Los
Alamos Nat'l Labs., 309 F.Supp.3d 1119, 1153-54
(D.N.M. 2016) (applying Tenth Circuit temporal proximity
standard to Title VII and NMHRA retaliation claims without
comment); Otero v. N.M. Corr. Dep't, 640
F.Supp.2d 1346, 1357 (D.N.M. 2009) (same).
Court finds it most likely that the New Mexico Supreme Court
would elect to apply the Tenth Circuit's temporal
proximity standard to retaliation claims under the NMHRA
where the plaintiff relies solely on temporal proximity to
establish causation, and will do so here, because the
reasoning underpinning the standard is applicable to both
federal and state law retaliation claims.
Underlying the law's recognition that a sufficient causal
inference may arise from adverse action shortly following
protected activity is the notion that such action typically
is the product of negative emotions such as anger or
resentment. Yet, our ability to draw such a causal inference
from an employer's adverse action diminishes over time
because we may reasonably expect (as a matter of common
sense) that the embers of anger or resentment that may have
been inflamed by the employee's protected activity . . .
would cool over time.
Conroy, 707 F.3d at 1182 (citations omitted).
to the facts of this case, Plaintiff has clearly satisfied
the first two elements of a prima facie retaliation case. It
is undisputed that on September 22, 2015, Plaintiff engaged
in the protected activity of filing a charge of
discrimination with the EEOC alleging age and national origin
discrimination. (Doc. 58 at 50.) It is further undisputed
that on January 14, 2016, Plaintiff applied for position
0602805, for which position he was neither interviewed nor
hired, thereby suffering an adverse employment action. (Doc.
69-2.) Defendants argue, however, that owing to the lapse of
approximately four months between the filing of
Plaintiff's EEOC charge and Plaintiff's non-selection
for position 0602805, he cannot satisfy the third element of
his prima facie case. (Doc. 58 at 19.) In response to this
argument, Plaintiff argues that he does not rely solely on
the temporal proximity between his first EEOC charge and his
non-selection for the position to show a causal connection
between them. (Doc. 69 at 33.) Rather, he relies on evidence
that Defendants' proffered reasons for not selecting him
for position 0602805 were pretextual. (Id.); see
Juneau, 2006-NMSC-002, ¶ 25, 127 P.3d at 555
(“[M]uch of the evidence that establishes a genuine
issue of fact for causation also demonstrates a factual
dispute as to pretext.”). In particular, he asserts
that the only reason his preference screen scores dropped for
position 0602805, as compared to his preference screen scores
for positions 0601542 and 0601976, is that he filed a charge
of discrimination in the intervening time period. (Doc. 69 at
record evidence does not support Plaintiff's assertion.
Unlike position 0602805, position 0601542 did not have the
preferred qualification of a Ph.D. in mathematics, and there
is no evidence that position 0601976 did,
either. This undisputed change in the preferred
qualifications is an objective, non-retaliatory reason for
the change in Plaintiff's scores. Another objective,
non-retaliatory reason for the change is the addition of
several supplemental questions regarding preferred
qualifications to the application for position 0602805 (and
for position 0602431, for which Plaintiff also received a
lower preferences score). (Compare Doc. 69-20 at 3
and Doc. 69-30 at 3 with Doc. 69-33 at 5-6
and Doc. 69-35 at 3.) Defendant Carman testified
that these questions were “tied to the preferences so
that . . . applicants would . . . directly address those
preferences. So it would make it more apparent to us whether
or not - to what degree the person met those
preferences.” (Doc. 58 at 53.) Plaintiff has presented
no evidence to dispute this testimony. In sum,
Plaintiff has not submitted evidence from which a reasonable
fact-finder could infer a causal connection between
Plaintiff's filing of his first EEOC charge and
Defendants' failure to interview him for position
0602805. He has therefore failed to establish a prima facie
case of retaliation. Accordingly, Defendants are entitled to
summary judgment on Plaintiff's ADEA, Title VII, and
NMHRA retaliation claims.
Plaintiff Has Met His Burden of Establishing a Prima
Facie Case of Age and National Origin Discrimination Based on
Defendants' Failure to Hire Him for Positions 0601542,
0602431, and 0602805
ADEA and the NMHRA provide that it is unlawful for an
employer to refuse to hire an individual because of his age.
29 U.S.C. § 623(a)(1); N.M. Stat. Ann. § 28-1-7(A).
Both statutes limit their protections against age
discrimination to individuals who are at least 40 years old.
29 U.S.C. § 631(a); Cates v. Regents of N.M. Inst.
of Mining & Tech., 954 P.2d 65, 70 (N.M. 1998). A
plaintiff must “establish that age was the
‘but-for' cause of the employer's adverse
action” to prevail on an age discrimination claim.
Gross, 557 U.S. at 176. To establish a prima facie
case of employment discrimination based on age, the plaintiff
must demonstrate that: (1) he was at least 40 years of age;
(2) he suffered an adverse employment action; (3) he was
qualified for the position at issue; and, (4) he was treated
less favorably than others substantially younger than him.
O'Connor, 517 U.S. at 312-13; Jones,
617 F.3d at 1279 (quoting Sanchez v. Denver Pub.
Sch., 164 F.3d 527, 532 (10th Cir. 1998)); see
generally McDonnell Douglas Corp., 411 U.S. at 802
(stating elements required to establish prima facie case of
discrimination under Title VII); 29 U.S.C. § 631(a).
VII and the NMHRA prohibit an employer from refusing to hire
an individual because of his national origin. 42 U.S.C.
§ 2000e-2(a)(1); N.M. Stat. Ann. § 28-1-7(A). To
establish a prima facie case of employment discrimination
based on national origin, a plaintiff must show that: (1) he
belongs to a class protected by statute; (2) he suffered an
adverse employment action; (3) he was qualified for the
position at issue; and, (4) he was treated less favorably
than others not in the protected class. Sanchez, 164
F.3d at 531-32; Garrison, 428 F.3d at 937.
has established a prima facie case of age and national origin
discrimination based on Defendants' failure to hire him
for the three positions addressed in Defendants' summary
judgment briefing. When he applied for these three positions,
Plaintiff was between the ages of 59 and 62 years and thus
unquestionably within the class of persons protected from age
discrimination in employment under the ADEA and the NMHRA.
(Doc. 58 at 29.) Further, Plaintiff's nation of origin is
Spain, and he closely identifies with Mexican culture in his
familial and social affiliations. (Id. at 29-30.)
These traits bring Plaintiff within the class of persons that
Title VII and the NMHRA protect from national origin
discrimination. See 29 C.F.R. § 1606.1
(defining “national origin discrimination” under
Title VII as “the denial of equal employment
opportunity because of an individual's . . . place of
origin; or because an individual has the physical, cultural
or linguistic characteristics of a national origin
group”); see Garcia v. Hatch Valley Pub.
Sch., 2018-NMSC-020, ¶ 13, - P.3d - (NMHRA does not
“permit discrimination between Hispanics and
non-Hispanics in the workplace”).
do not dispute that the failures to hire Plaintiff for the
positions at issue constitute adverse employment actions
within the meaning of Title VII, the ADEA, and the NMHRA.
(See generally Docs. 58, 76.) It is also undisputed
that Plaintiff satisfied the minimum requirements for each of
these positions. (Doc. 69-3 at 5); see E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1194 (10th Cir. 2000) (plaintiff satisfies “her prima
facie burden of showing she is qualified by presenting some
credible evidence that she possesses the objective
qualifications necessary to perform the job at issue”).
Finally, it is undisputed that, except for Ella Sitkin, who
was 62 years old when she was selected to fill position
0601542,  the other successful candidates for the
relevant positions were significantly younger than Plaintiff,
white, and not Hispanic. (Doc. 58 at 37, 46, 61-62; Doc. 69-7
at 5; Doc. 69-27 at 2; Doc. 69-33 at 2; Doc. 69-38 at 1.) In
sum, Plaintiff has established a prima facie case of age and
national origin discrimination as to positions 0601542,
0602431, and 0602805.
Defendants' Proffered Reasons for Not Hiring
Plaintiff and Plaintiff's Evidence of
second part of the McDonnell Douglas framework, the
employer's burden is satisfied if it explains what it has
done or produces evidence of legitimate non-discriminatory
reasons for its actions. E.E.O.C. v. Flasher Co.,
Inc., 986 F.2d 1312, 1317 (10th Cir. 1992). “This
burden is one of production, not persuasion; it ‘can
involve no credibility assessment.'” Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142
(2000). Indeed, “[t]he relevant inquiry is not whether
the employer's proffered reasons were wise, fair or
correct, but whether it honestly believed those reasons and
acted in good faith upon those beliefs.” Lobato v.
N.M. Env. Dept., 733 F.3d 1283, 1289 (10th Cir.
2013). Requiring the employer to articulate the
precise reasons for its actions effectively gives Plaintiff
notice of these reasons so that he has a fair opportunity to
show, at the third stage of the analysis, that the reasons
are a pretext for an illegal discriminatory motive.
Flasher Co., Inc., 986 F.2d at 1318.
demonstrate a genuine issue of material fact regarding
whether an employer's stated reason for an adverse
employment action is pretextual, a plaintiff must present
evidence showing that the employer's proffered reason is
“so incoherent, weak, inconsistent, or contradictory
that a rational fact finder could conclude that the reason is
unworthy of belief.” Hinds, 523 F.3d at 1197
(alterations omitted). Although employers are entitled to
rely on subjective criteria in making employment decisions,
the use of subjective criteria can, under some circumstances,
give rise to an inference of pretext. Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1217-18 (10th Cir.
2002). Courts recognize that there are some positions that
require abilities that cannot be fully measured by objective
standards and employers must be given adequate leeway to use
subjective criteria in their decision making. Bauer v.
Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981). However,
insofar as the use of subjective criteria “provides an
opportunity for unlawful discrimination, ” an employer
should articulate these criteria with “reasonable
the ADEA nor Title VII requires employers to give
preferential treatment to members of a protected
class. See Branson v. Price River Coal
Co., 853 F.2d 768, 772 (10th Cir.1988) (“The ADEA
does not require employers to accord members of the protected
class preferential treatment, but only that they treat age
neutrally.”); Burdine, 450 U.S. at 259 (Title
VII does not require employer to restructure its employment
practices to maximize the number of minorities hired).
Evidence that the plaintiff was as qualified as, or more
qualified than, a successful applicant is insufficient,
standing alone, to prove pretext. Sanchez v. Philip
Morris Inc., 992 F.2d 244, 248 (10th Cir. 1993)
(although employer's selection of less qualified
candidate may reflect poor business judgment, standing alone,
it does not demonstrate pretext). It is not the Court's
role to determine “whether an employer acted prudently
or imprudently in its hiring decisions.” Id.
“Mere conjecture that the employer's explanation is
a pretext for intentional discrimination is an insufficient
basis for denial of summary judgment.” Laul v. Los
Alamos Nat'l Labs., 714 Fed.Appx. 832, 839 (10th