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Gonzalez-Aller v. Governing Board

United States District Court, D. New Mexico

December 14, 2018




         On June 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.[1] (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 PART.

         I. FACTUAL HISTORY[2]

         Plaintiff 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”).[3] 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.[4] (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 1-2.)

         CNM 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).[5] The dean performs a fourth stage interview of the finalist(s) before making a final hiring decision.[6] (Doc. 69-3 at 4; Doc. 69-7 at 5-7; Doc. 69-29 at 4.)

         Hiring 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.)

         Position 0601542

         On 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 28.)

         Position 0601976[7]

         On 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.)

         Position 0602431

         On 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. 69-38.)

         Position 0602805

         On 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.)


         Federal 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).

         Defendants' Motion to Dismiss pertains to Defendants Cornish, Carman, and Manning in their individual capacities.[8] (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).)

         In 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.[9] See also Bertolo v. Benezee, 601 Fed.Appx. 636, 638 (10th Cir. 2015)[10] (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 Manning.

         Had 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.

         With 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 Manning.


         A. Legal Standards Governing Summary Judgment

         “Summary 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).

         The 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).

         B. Plaintiff's Employment Discrimination Claims

         1. Exhaustion of Administrative Remedies

         A 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 exhausted.

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).

         Plaintiff's 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.)

         In 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.

         2. The McDonnell Douglas Framework

         In the 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 claims).

         Under 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. 2018).

         If the 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.

         a. Plaintiff Has Not Met his Burden of Establishing a Prima Facie Case of Retaliation Based on Defendants' Failure to Hire Him for Position 0602805[11]

         The 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. Id.

         New 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).

         The 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).

         Turning 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[12] 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 29.)

         The 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.[13] 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.[14] 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.

         b. 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

         The 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).

         Title 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.

         Plaintiff 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”).

         Defendants 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, [15] 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.

         c. Defendants' Proffered Reasons for Not Hiring Plaintiff and Plaintiff's Evidence of Pretext

         In the 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.

         To 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 specificity.” Id.

         Neither the ADEA nor Title VII requires employers to give preferential treatment to members of a protected class.[16] 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 Cir. 2017).

         Position ...

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