1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: ________________
3 Filing Date: March 1, 2018
4 NO. S-1-SC-35641
5 NATALIE F. GARCIA,
6 Plaintiff-Respondent,
7 v.
8 HATCH VALLEY PUBLIC SCHOOLS,
9 Defendant-Petitioner.
10 ORIGINAL PROCEEDING ON CERTIORARI 11 Douglas R. Driggers, District Judge
12 German Burnette & Associates, LLC 13 Ethan Watson 14 Elizabeth L. German 15 Albuquerque, NM
16 for Petitioner
17 John P. Mobbs 18 El Paso, TX
19 Law Firm of Daniela Labinoti, P.C. 20 Daniela Labinoti 21 El Paso, TX 1 for Respondent 1 OPINION
2 MAES, Justice.
3 {1} Plaintiff Natalie Garcia, née Watkins, sued her former employer, Defendant
4 Hatch Valley Public Schools (HVPS), for employment discrimination under the New
5 Mexico Human Rights Act (NMHRA), NMSA 1978, § 28-1-7(A), (I) (2004).
6 Plaintiff alleged that HVPS terminated her employment as a school bus driver based
7 on her national origin, which she described as “German” and “NOT Hispanic.”
8 HVPS successfully moved for summary judgment in the district court, and the Court
9 of Appeals reversed, focusing on Plaintiff’s “primary contention” that HVPS had
10 discriminated against her and terminated her employment because she is not Hispanic.
11 Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-034, ¶¶ 11, 48, 369 P.3d 1.
12 {2} We granted certiorari under Rule 12-502 NMRA and reverse the Court of
13 Appeals. We hold that summary judgment in HVPS’s favor was appropriate because
14 Plaintiff failed to establish a prima facie case of discrimination and failed to raise a
15 genuine issue of material fact about whether HVPS’s asserted reason for terminating
16 her employment was pretextual. In so holding, we also conclude that (1) the Court
17 of Appeals properly focused on Plaintiff’s contention that she is not Hispanic in
18 analyzing her discrimination claim, (2) Plaintiff may claim discrimination under the
19 NMHRA as a non-Hispanic, and (3) the plain language of the NMHRA does not 1 place a heightened evidentiary burden on a plaintiff in a so-called “reverse”
2 discrimination case.
3 I. BACKGROUND
4 {3} HVPS hired Plaintiff as a school bus driver in August of 2008 and renewed her
5 contract for the 2009-2010 school year. In April of 2010, HVPS notified Plaintiff by
6 letter that it would “terminate” her employment at the end of her contract and that it
7 would not offer her a contract for the 2010-2011 school year. HVPS explained that
8 it was terminating Plaintiff’s employment “due to an unsatisfactory evaluation.”
9 {4} Plaintiff filed a complaint against HVPS with the Equal Employment
10 Opportunity Commission (EEOC) alleging race and national origin discrimination
11 under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to
12 2000e-17 (2012). Plaintiff contended that her supervisor, Stephanie Brownfield, had
13 discriminated and retaliated against her because Plaintiff is White and non-Hispanic.
14 The EEOC issued an order of non-determination, and Plaintiff timely filed suit,
15 alleging inter alia claims of discrimination and retaliation under the NMHRA,
16 Section 28-1-7(A), (I), based upon Plaintiff’s race and national origin. After a series
17 of procedural steps, most of which are not relevant to this appeal, Plaintiff narrowed
18 her complaint to a claim of discrimination under the NMHRA based on her national
2 1 origin, which she characterized as “German” and “NOT Hispanic.”
2 {5} HVPS later moved for summary judgment and we address the summary
3 judgment proceedings in detail below. For present purposes, we note that the district
4 court ruled in HVPS’s favor, concluding that the uncontroverted evidence showed
5 that Brownfield was unaware that Plaintiff was of German descent and that Plaintiff’s
6 national origin, therefore, could not have been a motivating factor in the termination
7 of her employment. The district court concluded in the alternative that Plaintiff had
8 failed to raise a genuine issue of material fact to establish that HVPS’s “stated
9 legitimate business reason for the termination of her employment was pretextual.”
10 {6} Plaintiff appealed, and the Court of Appeals reversed. Garcia, 2016-NMCA-
11 034, ¶ 49. The Court focused on Plaintiff’s claim that she was discriminated against
12 because she is not Hispanic and applied the federal burden-shifting framework that
13 we approved in Smith v. FDC Corp. for analyzing a discrimination claim under the
14 NMHRA to HVPS’s motion for summary judgment. 1990-NMSC-020, ¶ 9, 109 N.M.
15 514, 787 P.2d 433 (“The evidentiary methodology adopted [in McDonnell Douglas
16 Corp. v. Green, 411 U.S. 792 (1973)] provides guidance for proving a violation of the
17 [NMHRA].”). The Court of Appeals concluded that Plaintiff had established a prima
18 facie case of discrimination and had raised a genuine issue of material fact on the
3 1 issue of pretext, citing evidence of a Hispanic employee who reportedly had a dirty
2 bus but was not fired. Garcia, 2016-NMCA-034, ¶¶ 45, 47. The Court therefore held
3 the ultimate question of whether HVPS had discriminated against Plaintiff was for the
4 jury to decide. See id. ¶¶ 46-47. We review additional facts and procedural history
5 as necessary throughout this opinion.
6 II. DISCUSSION
7 {7} We granted certiorari on three issues: (1) whether the Court of Appeals erred
8 in analyzing Plaintiff’s claim for national origin discrimination as a claim for reverse
9 racial discrimination; (2) if the Court of Appeals properly analyzed Plaintiff’s
10 national origin discrimination claim as a reverse racial discrimination claim, whether
11 the Court erred in holding that so-called reverse discrimination plaintiffs do not have
12 to meet a higher standard under the NMHRA; and (3) whether the Court of Appeals
13 erred in reversing the district court’s grant of summary judgment in favor of HVPS.
14 These are questions of law, which we review de novo. See Juneau v. Intel Corp.,
15 2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548.
16 A. The Court of Appeals Properly Focused on Plaintiff’s Contention that She 17 Is Not Hispanic in Analyzing Her Discrimination Claim
18 {8} As a threshold issue, we first address an aspect of this case that became
4 1 unnecessarily complicated due to HVPS’s litigation strategy in the district court. We
2 discuss the issue in some detail to discourage similar tactics that needlessly consume
3 the resources of courts and litigants alike. Like the Court of Appeals, we hold that
4 the district court improperly focused on whether Brownfield knew that Plaintiff was
5 of German descent when it granted summary judgment in HVPS’s favor. See Garcia,
6 2016-NMCA-034, ¶ 10. We consider Plaintiff’s alleged Germanic origins to be a
7 false issue in this case, inserted only in response to HVPS’s formalistic challenge to
8 a routine discrimination claim.
9 {9} Throughout this litigation, Plaintiff’s consistent position has been that she was
10 treated differently than her Hispanic coworkers and ultimately terminated because she
11 is not Hispanic. Plaintiff identified herself in her original complaint as “a female
12 citizen of the United States of America,” and she alleged that she “was subjected to
13 discrimination . . . because of her race and/or national origin being of Caucasian
14 descent.” See § 28-1-7(A) (prohibiting discrimination by an employer based, inter
15 alia, on a person’s race or national origin). Plaintiff elaborated that she was treated
16 differently than her coworkers “due to her not being Hispanic.” She also alleged
17 specific examples of how she was treated differently from various coworkers, whom
18 she described as “being of Hispanic Origin” or “of Hispanic descent.”
5 1 {10} HVPS moved for judgment on the pleadings and, in its motion, revealed that
2 it fully understood the basis of Plaintiff’s claim. In HVPS’s own words, “Plaintiff is
3 apparently claiming she was discriminated against because she is a white non-
4 Hispanic American.” HVPS argued, however, that Plaintiff had failed to state a claim
5 for racial discrimination because “White persons and Hispanic persons are both of
6 the Caucasian race.” HVPS similarly argued that Plaintiff had failed to state a claim
7 for national origin discrimination because Plaintiff had failed to specify her national
8 origin; more specifically, HVPS argued that identifying herself as an “American
9 citizen” was insufficient. HVPS summed up the nature of its argument as follows at
10 the hearing on its motion:
11 I’m not denying that there can be discrimination based on one’s 12 ethnicity, but those are more properly alleged or more properly pled in 13 the [NMHRA] under other issues besides race or national origin. If they 14 are under national origin, there has to be a national origin. American 15 does not cut it.
16 It’s not our job to help the plaintiff plead her case. She pleads her 17 case, and then we respond.
18 {11} The district court denied the motion but specifically found that “Plaintiff’s
19 Complaint [did] not set forth the elements necessary to state a cause of action for
20 national origin discrimination.” The district court therefore gave Plaintiff leave to
6 1 amend her complaint and warned that “her cause of action will be dismissed unless
2 the Amended Complaint sets forth the elements necessary to go forward with her
3 claims.” Plaintiff promptly amended her complaint, dropping racial discrimination
4 as a basis for recovery and amending her national origin discrimination claim by
5 describing herself for the first time as “German” and “of German descent.” Her
6 amended complaint, however, continued to allege that “she was treated differently
7 than other . . . workers due to the fact that she was NOT Hispanic” and continued to
8 describe her coworkers who allegedly received more favorable treatment as “ALL
9 Hispanic.” (Bold face in original.)
10 {12} Defendant eventually moved for summary judgment on the grounds that
11 Plaintiff had failed to raise a genuine issue of material fact that Plaintiff’s supervisor,
12 Brownfield, knew that Plaintiff is German. The motion for summary judgment did
13 not meaningfully address that Plaintiff’s national origin discrimination claim also was
14 based on her being NOT Hispanic.1 The district court granted summary judgment in
1 15 HVPS argues for the first time on appeal that Plaintiff similarly failed to 16 introduce admissible evidence that Brownfield was aware that Plaintiff is not 17 Hispanic or perceived Plaintiff as not Hispanic. HVPS did not make this argument 18 in the district court, and we therefore decline to address it on appeal. See Juneau, 19 2006-NMSC-002, ¶ 12 (“Not having requested or received a ruling on the question 20 of protected activity, [the defendant] failed to preserve any such challenge for 21 consideration by this Court.”).
7 1 HVPS’s favor, specifically finding that Plaintiff’s national origin discrimination claim
2 failed because Brownfield was not aware of Plaintiff’s German national origin, and
3 therefore Plaintiff’s national origin “could not, as a matter of law, have been a
4 motivating factor in the termination of her employment.”
5 {13} This procedural history evinces an approach to litigation that we have
6 repeatedly criticized. We have held that “the principal function of pleadings is to
7 give fair notice of the claim asserted.” Zamora v. St. Vincent Hosp., 2014-NMSC-
8 035, ¶ 12, 335 P.3d 1243 (quoting Malone v. Swift Fresh Meats Co., 1978-NMSC-
9 007, ¶ 10, 91 N.M. 359, 574 P.2d 283). We also have emphasized “our policy of
10 avoiding insistence on hypertechnical form and exacting language.” Zamora, 2014-
11 NMSC-035, ¶ 10. The record is clear that HVPS understood the basis for Plaintiff’s
12 claim from the beginning of this litigation—that she was discriminated against
13 because she is not Hispanic. Equally clear is that HVPS has never argued that the
14 New Mexico Human Rights Act permits discrimination between Hispanics and non-
15 Hispanics in the workplace. And rightly so; such an argument would be
16 preposterous. Cf., e.g., State ex rel. League of Women Voters of N.M. v. Advisory
17 Comm. to the N.M. Compilation Comm’n, 2017-NMSC-025, ¶¶ 25-34, 401 P.3d 734
18 (reviewing the history of state constitutional provisions that prohibit discrimination
8 1 against New Mexico’s Spanish-speaking population with respect to voting and
2 educational rights).
3 {14} HVPS’s argument, instead, has always been semantic: the discrimination
4 alleged by Plaintiff is based on “ethnic characteristics” and therefore does not amount
5 to racial or national origin discrimination. Notably, the NMHRA does not explicitly
6 prohibit discrimination based on one’s ethnicity or “ethnic characteristics.” See § 28-
7 1-7(A) (prohibiting discrimination based on “race, age, religion, color, national
8 origin, ancestry, sex, physical or mental handicap or serious medical condition”). We
9 therefore suspect that HVPS would have made similar arguments had Plaintiff based
10 her claims on her color or ancestry; for example, that Whites and Hispanics are both
11 the same color, or that being White and of Caucasian descent are not proper
12 descriptors of one’s ancestry. HVPS does not identify which of the remaining classes
13 protected under the NMHRA—if any—could bear the weight of Plaintiff’s claim.
14 {15} HVPS’s semantic attacks on Plaintiff’s claims embody the “technical niceties
15 or procedural booby traps New Mexico left behind more than seventy years ago.”
16 Zamora, 2014-NMSC-035, ¶ 14 (internal quotation marks omitted). Unfortunately,
17 its strategy succeeded and led to the addition of an allegation that was used as a basis
18 for dismissing her lawsuit. Had Plaintiff’s Germanic origins been at the root of her
9 1 discrimination claim, perhaps summary judgment for HVPS would have been
2 appropriate based on Brownfield’s asserted lack of knowledge that Plaintiff is
3 German. See, e.g., Kruger v. Cogent Commc’ns, Inc., 174 F. Supp. 3d 75, 82-83
4 (D.D.C. 2016) (denying a motion to dismiss a claim for national origin discrimination
5 because the complaint alleged that plaintiff’s supervisor made statements and
6 references to the plaintiff’s German last name and referred to the plaintiff as a
7 “Nazi”). But to allow HVPS to avoid a jury trial by sidestepping Plaintiff’s primary
8 theory of liability—that her employment was terminated because she is not
9 Hispanic—would elevate form over substance. By its own admission, HVPS had
10 adequate notice of the actual basis of Plaintiff’s discrimination claim from the
11 beginning of the lawsuit. See, e.g., Salas v. Wisc. Dep’t of Corrs., 493 F.3d 913, 923
12 (7th Cir. 2007) (holding that the plaintiff’s national origin claim based upon being
13 Hispanic did not deprive the employer “of notice or otherwise hamper its ability to
14 defend the claim”). We therefore focus on the gravamen of Plaintiff’s complaint, that
15 she was subjected to national origin discrimination because she is not Hispanic.
16 B. Plaintiff May Claim Discrimination Under the NMHRA as a Non-Hispanic
17 {16} We turn to HVPS’s argument that the Court of Appeals improperly analyzed
18 Plaintiff’s national origin discrimination claim as a racial discrimination claim.
10 1 Based on our review of the NMHRA, Title VII, and the federal courts’ inconsistent
2 interpretations of national origin and racial discrimination under Title VII, we hold
3 that the distinction is immaterial in this case when Plaintiff has consistently claimed
4 that HVPS discriminated against her because she is not Hispanic.
5 {17} We have not addressed the precise contours of national origin discrimination
6 under the NMHRA and whether it encompasses discrimination against a person who
7 is Hispanic or non-Hispanic. But cf. Gonzales v. N.M. Dep’t of Health, 2000-NMSC-
8 029, ¶¶ 1, 11, 129 N.M. 586, 11 P.3d 550 (noting that the jury had found against the
9 plaintiff on her discrimination claim based on her “Hispanic national origin”). In
10 considering the issue, we look for guidance to interpretations of federal employment
11 discrimination law under Title VII. See Smith, 1990-NMSC-020, ¶ 9 (looking to
12 federal interpretation of the Civil Rights Act of 1964 for “guidance for proving a
13 violation of the [NMHRA]”). We emphasize that interpretations of federal law are
14 merely persuasive and that we analyze claims under the NMHRA based upon the
15 statute and our interpretation of the Legislature’s intent. See id.
16 {18} Both the NMHRA and Title VII prohibit discrimination based on a number of
17 traits, including national origin. See § 28-1-7(A) (prohibiting discrimination on the
18 basis of a person’s “race, age, religion, color, national origin, ancestry, sex, physical
11 1 or mental handicap or serious medical condition,” as well as a person’s spousal
2 affiliation, sexual orientation, or gender identity in certain circumstances); 42 U.S.C.
3 § 2000e-2(a) (2012) (prohibiting discrimination based upon a person’s “race, color,
4 religion, sex, or national origin”). Neither law defines national origin or national
5 origin discrimination. See generally NMSA 1978, § 28-1-2 (2007) (defining certain
6 terms as used in the NMHRA); 42 U.S.C. § 2000e (defining certain terms used in
7 Title VII). Similarly, neither law defines the related terms “race,” “color,” or
8 “ancestry,” or discrimination based on those characteristics.2
9 {19} The EEOC, as the executive agency charged with enforcing Title VII, has
10 defined the term “national origin discrimination” for its purposes as discrimination
11 based on (1) the place of origin of a person or a person’s ancestors, or (2) the
12 “physical, cultural[,] or linguistic characteristics of a national origin group.” 29
13 C.F.R. § 1606.1 (2017) (“The [Equal Employment Opportunity] Commission defines
14 national origin discrimination broadly as including, but not limited to, the denial of
2 15 The NMHRA includes ancestry in its list of protected characteristics. Title 16 VII does not. But see Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88-89 (1973) (noting 17 that an earlier version of Title VII included the term “ancestry” and that deletion of 18 the term from the final version of Title VII “was not intended as a material change, 19 suggesting that the terms ‘national origin’ and ‘ancestry’ were considered 20 synonymous” (citation omitted)).
12 1 equal employment opportunity because of an individual’s, or his or her ancestor’s,
2 place of origin; or because an individual has the physical, cultural or linguistic
3 characteristics of a national origin group.”). Discrimination against a Hispanic or
4 non-Hispanic person thus would fall squarely under the second prong of the EEOC’s
5 definition as unequal treatment based on the person’s “national origin group.” See
6 U.S. Equal Emp’t Opportunity Comm’n, No. 915.005, EEOC Enforcement Guidance
7 on National Origin Discrimination, § II(B) (2016) (“National origin discrimination
8 also includes discrimination against a person because she does not belong to a
9 particular ethnic group, such as less favorable treatment of employees who are not
10 Hispanic.”).
11 {20} The EEOC’s interpretation of Title VII, however, is merely persuasive. See
12 Vill. of Freeport v. Barrella, 814 F.3d 594, 607 n.47 (2d Cir. 2016) (“[T]he EEOC’s
13 interpretation is entitled at most to so-called Skidmore deference—i.e., ‘deference to
14 the extent it has the power to persuade.’” (quoting Townsend v. Benjamin Enters., 679
15 F.3d 41, 53 (2d Cir. 2012)). The lack of a controlling definition has resulted in
16 divergent views in the federal courts about the boundary between discrimination
17 based on national origin and discrimination based on race. See, e.g., Salas, 493 F.3d
18 at 923 (“In the federal courts, there is uncertainty about what constitutes race versus
13 1 national origin discrimination under Title VII.”).
2 {21} With regard to the specific issue of discrimination against Hispanics and non-
3 Hispanics under Title VII, federal courts agree that such discrimination is prohibited,
4 but they often struggle to identify the source of that prohibition. See, e.g., Vill. of
5 Freeport, 814 F.3d at 606 (“Title VII obviously affords a cause of action for
6 discrimination based on Hispanic ethnicity—but why?”). Some have held that
7 discrimination against Hispanics and non-Hispanics is based on race. See, e.g., id.
8 at 607 (“[D]iscrimination based on ethnicity, including Hispanicity or lack thereof,
9 constitutes racial discrimination under Title VII.”). Others have held that such
10 discrimination is based on national origin. See, e.g., Salas, 493 F.3d at 923 (“[A]
11 plaintiff alleging that he is Hispanic sufficiently identifies his national origin to
12 survive summary judgment.”). And others simply avoid the question altogether. See,
13 e.g., Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459 (S.D.N.Y.
14 1998) (“Whether being Hispanic constitutes a race or a national origin category is a
15 semantic distinction with historical implications not worthy of consideration here.”).
16 {22} The takeaway from these cases is that terms like race and national origin, as
17 well as related terms like ancestry and ethnicity, often overlap, even to the point of
18 being factually indistinguishable. See Saint Francis Coll. v. Al-Khazraji, 481 U.S.
14 1 604, 614 (1987) (Brennan, J., concurring) (“[T]he line between discrimination based
2 on ‘ancestry or ethnic characteristics’ and discrimination based on ‘place or nation
3 of . . . origin’ is not a bright one. . . . Often, however, the two are identical as a factual
4 matter: one was born in the nation whose primary stock is one’s own ethnic group.
5 Moreover, national origin claims have been treated as ancestry or ethnicity claims in
6 some circumstances. For example, in the Title VII context, the terms overlap as a
7 legal matter.” (first omission in original) (citations omitted)).
8 {23} We find this reasoning persuasive and conclude that the precise label that
9 Plaintiff chose to describe her claim is less important than her consistent allegations
10 that she was treated differently than her Hispanic coworkers because she is not
11 Hispanic. As we already have explained, HVPS does not argue that such
12 discrimination is permitted under the NMHRA. Whether denominated as
13 discrimination based on her race, national origin, ancestry, or any combination
14 thereof, HVPS was fully apprised of the basis of her claim, and that is all that we
15 require. See Zamora, 2014-NMSC-035, ¶ 14 (holding that a complaint that
16 “highlighted the key facts and actors relevant to [the plaintiff’s] cause of action” and
17 that emphasized the main theory of liability “adequately informed [the defendant] of
18 the general nature of [the plaintiff’s] claim”); see also Salas, 493 F.3d at 923 (holding
15 1 that the plaintiff’s national origin claim based upon being Hispanic did not deprive
2 the employer “of notice or otherwise hamper its ability to defend the claim”).
3 C. The Plain Language of the NMHRA Does Not Place a Heightened 4 Evidentiary Burden on a Plaintiff in a So-Called “Reverse” Discrimination 5 Case
6 {24} Before we turn to the merits of HVPS’s motion for summary judgment, we
7 pause to address the Court of Appeals’ significant detour into the issue of so-called
8 “reverse” discrimination under federal law, an issue that was not raised or briefed by
9 the parties in the district court or on appeal. See Garcia, 2016-NMCA-034, ¶¶ 16-43.
10 In analyzing Plaintiff’s claim of national origin discrimination, the Court took upon
11 itself to answer whether the NMHRA and our caselaw place a higher evidentiary
12 burden on a plaintiff who does not “belong[] to a racial minority.” Id. ¶¶ 17-18.
13 After a detailed review of the various approaches taken by federal courts, the Court
14 of Appeals concluded that a consistent standard for “both discrimination and reverse
15 discrimination plaintiffs . . . reflects the purpose and philosophy behind Title VII as
16 expressed by the United States Supreme Court.” Id. ¶¶ 19-43. The Court therefore
17 held that it would “analyze a reverse discrimination claim as [it] would [analyze] any
18 racial discrimination claim.” Id. ¶ 43.
19 {25} We expressly disavow any reliance on reverse discrimination cases in
16 1 analyzing a claim under the NMHRA. The plain language of the NMHRA does not
2 distinguish between particular “race[s], age[s], religion[s], color[s], national origin[s],
3 ancestr[ies], sex[es], physical or mental handicap[s] or serious medical condition[s].”
4 Section 28-1-7(A); but see Cates v. Regents of the N.M. Inst. of Mining & Tech.,
5 1998-NMSC-002, ¶ 18, 124 N.M. 633, 954 P.2d 65 (holding that “40 years old marks
6 the minimum age in the protected age class in cases of employment discrimination
7 under the [NMHRA]”). The NMHRA, simply and clearly, prohibits unlawful
8 discrimination based on the traits declared by the Legislature to be worthy of
9 protection. Accord McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79
10 (1976) (holding that Title VII’s “terms are not limited to discrimination against
11 members of any particular race” and thus prohibit “[d]iscriminatory preference for
12 any [racial] group, minority or majority” (alterations in original) (quoting Griggs v.
13 Duke Power Co., 401 U.S. 424, 431 (1971)); Lind v. City of Battle Creek, 681
14 N.W.2d 334, 334-35 (Mich. 2004) (holding that the language of the Michigan Civil
15 Rights Act “draws no distinctions between individual plaintiffs on account of race,”
16 and therefore a “majority” plaintiff need not present more evidence than a “minority”
17 plaintiff to prevail on a discrimination claim (internal quotation marks and citation
18 omitted)). Therefore, under the plain language of the NMHRA, its protections and
17 1 requirements apply equally to all plaintiffs, regardless of their minority or majority
2 status. See Sims v. Sims, 1996-NMSC-078, ¶ 22, 122 N.M. 618, 930 P.2d 153 (“[T]he
3 courts will not add to such a statutory enactment, by judicial decision, words which
4 were omitted by the legislature.” (quoting State ex rel. Miera v. Chavez, 1962-
5 NMSC-097, ¶ 7, 70 N.M. 289, 373 P.2d 533)).
6 D. Summary Judgment Was Appropriate in this Case
7 {26} The final question in this appeal is whether Plaintiff came forward with
8 sufficient evidence to survive HVPS’s motion for summary judgment. The Court of
9 Appeals reversed the district court’s grant of summary judgment in HVPS’s favor,
10 citing evidence that one of Plaintiff’s coworkers had complained to another HVPS
11 employee—who was not Plaintiff’s supervisor—about a Hispanic coworker who had
12 a dirty bus. See Garcia, 2016-NMCA-034, ¶¶ 47-48. For reasons that will become
13 clear below, this evidence was insufficient to create a genuine issue of material fact
14 about whether HVPS intentionally discriminated against Plaintiff when it terminated
15 her employment. The question we therefore must answer is whether Plaintiff’s other
16 evidence was sufficient to survive HVPS’s motion for summary judgment.
17 {27} The standard for summary judgment is well-established:
18 Summary judgment is appropriate where there are no genuine issues of
18 1 material fact and the movant is entitled to judgment as a matter of law. 2 Where reasonable minds will not differ as to an issue of material fact, 3 the court may properly grant summary judgment. All reasonable 4 inferences are construed in favor of the non-moving party.
5 Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280
6 (quoting Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150
7 P.3d 971). Before we apply this standard, we must look to the substantive law
8 governing the dispute because it is the filter through which we must determine
9 whether genuine issues of material fact exist. See Romero, 2010-NMSC-035, ¶ 11
10 (quoting Farmington Police Officers Ass’n v City of Farmington, 2006-NMCA-077,
11 ¶ 17, 139 N.M. 750, 137 P.3d 1204).
12 {28} Plaintiff has not offered direct evidence of intentional discrimination, so we
13 apply the burden-shifting methodology that we approved in Smith for analyzing a
14 discrimination claim based upon indirect evidence. See 1990-NMSC-020, ¶ 10-11.
15 Under Smith, a plaintiff first must establish a prima facie case of discrimination,
16 which creates a presumption that discrimination has occurred. See id. ¶¶ 9 n.1, 11.
17 The defendant then may rebut the presumption by producing evidence that “the
18 plaintiff was dismissed based on a nondiscriminatory motivation.” Id. Once rebutted,
19 the presumption of discrimination “drops from the case.” Bovee v. State Highway &
19 1 Transp. Dep’t, 2003-NMCA-025, ¶ 14, 133 N.M. 519, 65 P.3d 254 (quoting U.S.
2 Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). The plaintiff
3 may then offer evidence that the employer’s proffered nondiscriminatory reason was
4 “pretextual or otherwise inadequate.” Juneau, 2006-NMSC-002, ¶ 9.
5 1. Plaintiff Did Not Establish a Prima Facie Case of Discrimination
6 {29} In Smith, we stated a formulation of the prima facie case for termination under
7 which the plaintiff must show that (1) she is a member of a protected class, (2) she
8 was qualified to continue in her position, (3) her employment was terminated, and (4)
9 “[her] position was filled by someone not a member of the protected class.” Id. ¶ 11.
10 Smith also clarified that a prima facie case could be established “through other
11 means” when a plaintiff cannot demonstrate that she was replaced by someone not in
12 the protected class. Id. In that circumstance, we held that a plaintiff could satisfy the
13 fourth element of the prima facie case with evidence that “[she] was dismissed
14 purportedly for misconduct nearly identical to that engaged in by one outside of the
15 protected class who was nonetheless retained.” 1990-NMSC-020, ¶ 11.
16 {30} Smith thus recognized that the prima facie case “was not intended to be an
17 inflexible rule.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978). “The
18 facts necessarily will vary in Title VII cases, and the specification of the prima facie
20 1 proof required from [a] respondent is not necessarily applicable in every respect to
2 differing factual situations.” Id. at 575-76 (alterations omitted) (quoting McDonnell
3 Douglas Corp., 411 U.S. at 802 n.13). The purpose of the prima facie case is to
4 permit an inference of discrimination by ruling out “the most common
5 nondiscriminatory reasons for the plaintiff’s [discriminatory treatment].” Texas Dep’t
6 of Cmty Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). The “prima facie case
7 ‘raises an inference of discrimination only because we presume these acts, if
8 otherwise unexplained, are more likely than not based on the consideration of
9 impermissible factors.’” Id. at 254 (quoting Furnco, 438 U.S. at 577).
10 {31} In a claim alleging discriminatory termination, the requirements that we
11 approved in Smith were intended to rule out “the most common nondiscriminatory
12 reasons for the plaintiff’s [termination]” under the circumstances of a particular case.
13 Burdine, 450 U.S. at 253-54. In this case, Plaintiff alleged in her complaint that
14 Brownfield notified her that her contract would not be renewed because of her
15 “performance.” Therefore, under the circumstances of this case, the fourth element
16 of the prima facie case must be modified to permit Plaintiff to show that “[she] was
17 dismissed purportedly for [performance] nearly identical to [the performance of] one
18 outside of the protected class who was nonetheless retained.” See Smith, 1990-
21 1 NMSC-020, ¶ 11. Without such a showing, an inference of discrimination is not
2 warranted because Plaintiff has not ruled out the most common nondiscriminatory
3 reasons for her termination, namely, that her performance was materially different
4 than the performance of her Hispanic coworkers.
5 {32} Plaintiff failed to come forward with evidence to establish the fourth element
6 of the prima facie case as modified above. Instead, Plaintiff proffered evidence
7 purporting to show that she was treated less favorably than her Hispanic coworkers
8 in a variety of ways, some of which were unrelated to her performance or termination.
9 Plaintiff’s evidence consisted of testimony about isolated instances of asserted
10 unequal treatment with respect to various Hispanic coworkers, including (1) the
11 scheduling and assignment of bus routes, (2) compensation for pre- and post-trip
12 inspection time, (3) maintaining a clean bus, and (4) enforcement of post-accident
13 testing and suspension policies. None of this evidence purported to show that one or
14 more Hispanic employees’ performance was “nearly identical” to Plaintiff’s
15 performance as a whole. Smith, 1990-NMSC-020, ¶ 11. Plaintiff’s evidence
16 therefore is insufficient to rule out the most common nondiscriminatory reasons for
17 the termination of her employment.
18 {33} We do not mean to suggest that Plaintiff had to produce evidence of an
22 1 employee whose performance was a carbon copy of her own. Cf. Young v. United
2 Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015) (noting that the prima facie case does
3 not “require the plaintiff to show that those whom the employer favored and those
4 whom the employer disfavored were similar in all but the protected ways”). But
5 without some basis for meaningful comparison of Plaintiff’s job performance with the
6 performance of at least one Hispanic employee, Plaintiff’s proffered evidence was
7 insufficient to establish a prima facie case of discriminatory termination. Put simply,
8 Plaintiff’s evidence does not support an inference that HVPS terminated her
9 employment because she is not Hispanic.
10 2. HVPS’s Asserted Nondiscriminatory Reason
11 {34} Even if we were to assume that Plaintiff established a prima facie case of
12 discrimination, her claim would not survive HVPS’s motion for summary judgment.
13 See Cates, 1998-NMSC-002, ¶¶ 21, 25-26 (affirming summary judgment in favor of
14 employer on age discrimination claim when the plaintiff failed to establish a prima
15 facie case of discrimination and failed to show that the employer’s reason for laying
16 him off was pretextual). HVPS met its burden to produce evidence of a
17 nondiscriminatory reason for terminating Plaintiff’s employment, and Plaintiff’s
18 evidence did not tend to show that HVPS’s asserted reason for terminating her
23 1 employment was pretextual or “merely an excuse to cover up illegal conduct.”
2 Juneau, 2006-NMSC-002, ¶ 23.
3 {35} HVPS came forward with extensive evidence of its nondiscriminatory reason
4 for terminating Plaintiff’s employment. To start, HVPS offered Brownfield’s
5 explanation by affidavit that she had been the Transportation Director for HVPS from
6 September 2008 through June 2010, that she had been Plaintiff’s direct supervisor,
7 and that she had recommended terminating Plaintiff’s employment due to “an
8 unsatisfactory evaluation and ongoing performance issues.” HVPS also produced
9 Brownfield’s evaluation of Plaintiff for the 2009-2010 school year, which showed
10 that Plaintiff had fully “Met Competency” in only five of the eleven areas that were
11 evaluated. HVPS also produced documentation showing that Plaintiff was an
12 employee with less than three consecutive years of service and therefore her
13 employment was at-will and could be terminated “for any reason.” See NMSA 1978,
14 § 22-10A-24(A) (2003) (providing that a local school board may terminate the
15 employment of an employee with fewer than three consecutive years of service “for
16 any reason it deems sufficient”); see also § 22-10A-24(D) (“A local school board or
17 governing authority may not terminate an employee who has been employed by a
18 school district or state agency for three consecutive years without just cause.”).
24 1 {36} HVPS also produced documentation maintained by Brownfield of a number of
2 performance-related incidents involving Plaintiff, dating from January of 2009
3 through March of 2010. The documentation included (1) a warning for dropping off
4 a student at a different stop without proper authorization; (2) a warning for failing to
5 use her flashers when picking up students, permitting students to get on or off her bus
6 at other than their designated stops, and for failing to know her standards; (3) a
7 notification that her bus had been flagged by an inspector because the emergency
8 windows were not functioning properly and because she had failed to note the
9 problem on her pre/post trip ticket; (4) a warning for backing into another bus at a
10 fueling station; (5) a warning for hitting and uprooting a rail in an elementary school
11 parking lot; (6) two notes alerting Plaintiff that her buses were dirty, one of which
12 stated that her mirrors were a safety hazard; and (7) documentation about a grievance
13 against Plaintiff that had been filed by another bus driver because Plaintiff had told
14 other employees that she had found prescription painkillers in the driver’s desk.
15 3. Plaintiff’s Evidence of Pretext
16 {37} Thus, assuming that Plaintiff established a prima facie case, HVPS clearly met
17 its burden to come forward with evidence of a nondiscriminatory reason for
18 terminating her employment. As a result, the presumption of discrimination created
25 1 by the prima facie case “drops from the case,” Bovee, 2003-NMCA-025, ¶ 14
2 (quoting Aikens, 460 U.S. at 715), and Plaintiff may offer evidence that the
3 employer’s proffered nondiscriminatory reason was “pretextual or otherwise
4 inadequate.” Juneau, 2006-NMSC-002, ¶ 9. The question of pretext is “largely a
5 credibility issue and . . . should normally be left exclusively to the province of the
6 jury.” Id. ¶ 23.
7 {38} In this case, however, Plaintiff’s evidence did not show that HVPS’s asserted
8 reason for terminating her employment was pretextual or “merely an excuse to cover
9 up illegal conduct.” Id. To the contrary, HVPS’s proffered evidence further
10 demonstrated that Plaintiff did not identify a single employee whose performance was
11 “nearly identical” so as to permit an inference of a discriminatory motive. Smith,
12 1990-NMSC-020, ¶ 11; see also Juneau, 2006-NMSC-002, ¶ 25 (noting that the
13 plaintiff’s evidence to show causation in the prima facie case and pretext may be the
14 same). Plaintiff did not identify a single Hispanic employee who was retained despite
15 (1) having a similar history of documented performance issues, (2) receiving a similar
16 evaluation, or (3) being terminable at-will. Thus, the inadequacy of Plaintiff’s
17 evidence of other employees’ performance was only exacerbated by HVPS’s evidence
18 to support its decision to terminate Plaintiff’s employment.
26 1 {39} Plaintiff’s remaining evidence that HVPS’s asserted reason was pretextual
2 consisted of (1) the fact that none of Plaintiff’s marks on her evaluation were actually
3 “Unsatisfactory”; rather, five were “Meets Competency,” four were “Needs
4 Improvement,” and two were “Meets Competency/Needs Improvement”; (2)
5 testimony by fellow employees who were surprised when Plaintiff’s contract was not
6 renewed; (3) testimony by fellow employees that Plaintiff was doing more activity
7 trips than any other driver, including eighteen trips the month before she received
8 notice that her contract would not be renewed; and (4) testimony by a fellow
9 employee that Plaintiff had been sent for special training. This evidence may support
10 an inference that Plaintiff’s termination was unexpected, but it does not support an
11 inference that her employment was terminated because she is not Hispanic.
12 {40} In our view, the following exchange with Plaintiff during her deposition both
13 sums up her claim and demonstrates why summary judgment was appropriate:
14 Q: Did anybody at the Hatch Schools ever say that they were taking 15 away your bus routes because you were not Hispanic?
16 A: Nobody is going to say that to me. But because I wasn’t 17 Hispanic, I was treated way different.
18 Q: Well, if — why do you think that? Is it just because that you’re 19 the only non-Hispanic one there, or did somebody ever actually 20 say something to you because you’re non-Hispanic that you’re not
27 1 given a route?
2 A: I’m the one that’s white, I had to go for drug and alcohol tests. 3 Everybody there that’s Hispanic that hit the barn or hit the railing 4 or hit a cement mixer or anything, they never went for a drug and 5 alcohol test. Every other bus driver that’s Hispanic knew exactly 6 when the trips out of town they were going to take, they could 7 prepare for that. I’m white, huh, I wasn’t given that opportunity. 8 It would have been nice to know. At that time we were living in 9 Radium Springs, it would have been really nice to know that I had 10 to go out of town where I could get whatever I needed from my 11 house. There was times that I went to Family Dollar or something 12 so I could get something because I had to go on a trip. I didn’t 13 have time to go all the way back to my house to get something to 14 go on a trip because Vickie refused to ask me. She would not ask 15 me, not even when I would sit there and tell her, That trip is in 16 two or three days, go ahead and put my name up there, I’ll take it. 17 Oh, I’m not that far yet. I’m not that far yet.
18 {41} We do not doubt the sincerity of Plaintiff’s testimony. But “[t]he NMHRA
19 protects against discriminatory treatment, not against general claims of employer
20 unfairness.” Juneau, 2006-NMSC-002, ¶ 14. Plaintiff’s evidence does not raise a
21 genuine issue of material fact that her non-Hispanic national origin was a motivating
22 factor in HVPS’s decision to terminate her employment. See Smith, 1990-NMSC-
23 020, ¶ 9 n.1 (explaining that once the employer comes forward with evidence of a
24 nondiscriminatory reason, the plaintiff’s burden of establishing pretext “merges with
25 the plaintiff’s ultimate burden of proof of intentional discrimination” (citing Burdine,
28 1 450 U.S. at 256)).
2 III. CONCLUSION
3 {42} We reverse the Court of Appeals and remand for further proceedings consistent
4 with this opinion.
5 {43} IT IS SO ORDERED.
6 ___________________________________ 7 PETRA JIMENEZ MAES, Justice
8 WE CONCUR:
9 ___________________________________ 10 JUDITH K. NAKAMURA, Chief Justice
11 ___________________________________ 12 EDWARD L. CHÁVEZ, Justice
13 ___________________________________ 14 CHARLES W. DANIELS, Justice
29 1 ___________________________________ 2 BARBARA J. VIGIL, Justice