Quiroz v. ConocoPhillips Co.
Opinion
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed November 16, 2015 (Doc. 36)("MSJ"). The Court held a hearing on September 26, 2016. The primary issues are: (i) whether a genuine dispute of material fact exists regarding Plaintiff Rudy Quiroz' claims for racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, and under the New Mexico Human Rights Act,
*1276FACTUAL BACKGROUND
The Court draws the factual background from the parties' assertions of undisputed material fact in their summary judgment motion papers. See MSJ ¶¶ 1-75, at 2-15; Response of Plaintiff Rudy Quiroz to Defendant's Motion for Summary Judgment ¶¶ 1-75, at 1-19, filed December 8, 2015 (Doc. 41)("Response"); Defendant's Reply in Support of its Motion for Summary Judgment at 1-13, filed December 31, 2015 (Doc. 46)("Reply").
1. Quiroz' Employment with ConocoPhillips.
Quiroz began working for ConocoPhillips in 1986. See MSJ ¶ 1, at 2 (asserting this fact)(citing Oral Deposition of Rudy Quiroz at 45:10-13 (taken October 12, 2015)("Quiroz Depo.") ); Response ¶ 1, at 1 (admitting this fact). During his employment, Quiroz received several promotions and held the position of Production Supervisor at the time ConocoPhillips terminated him. See MSJ ¶ 2, at 3 (asserting this fact)(citing Quiroz Depo. at 45:22-50:12); Response ¶ 2, at 1 (admitting this fact). As a Production Supervisor, Quiroz managed a group of employees who maintained well sites and a CO2 plant called the "Buckeye Operations" in southwest New Mexico. MSJ ¶ 3, at 3 (asserting this fact)(citing Quiroz Depo. at 54:11-56:22; ibr.US_Case_Law.Schema.Case_Body:v1">id
IMPACT is a reporting system that ConocoPhillips uses to track problems involving its facilities. See MSJ ¶ 4, at 3 (asserting this fact)(citing Oral Deposition of Donald John Blair at 34:1-37:17 (taken October 13, 2015)("Blair Depo.") ); Response ¶ 4, at 2 (admitting this fact). Health, Safety, and Environmental ("HSE") lead employees are responsible for supporting Production Supervisors like Quiroz, and his boss, Tommy Brooks, "all of whom can input any incidents into the IMPACT system." MSJ ¶ 4, at 3 (asserting this fact)(citing Blair Depo. at 34:1-37:17).3 Quiroz "understood that IMPACT is the *1277internal reporting mechanism to track all incidents." MSJ ¶ 5, at 3 (asserting this fact)(citing Quiroz Depo. at 69:19-73:25); Response ¶ 5, at 2 (admitting this fact). The HSE department reviewed the information entered into IMPACT and determined if an investigation was needed. See Response ¶ 5, at 2 (asserting this fact)(citing Quiroz Depo. at 72:2-19).4 "On an issue such as a release in the Buckeye area, Quiroz would be responsible to provide closure or cleanup information to one of the HSE people." See Response ¶ 4, at 2 (asserting this fact)(citing Blair Depo. at 37:2-17).5
Free access — add to your briefcase to read the full text and ask questions with AI
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed November 16, 2015 (Doc. 36)("MSJ"). The Court held a hearing on September 26, 2016. The primary issues are: (i) whether a genuine dispute of material fact exists regarding Plaintiff Rudy Quiroz' claims for racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, and under the New Mexico Human Rights Act,
*1276FACTUAL BACKGROUND
The Court draws the factual background from the parties' assertions of undisputed material fact in their summary judgment motion papers. See MSJ ¶¶ 1-75, at 2-15; Response of Plaintiff Rudy Quiroz to Defendant's Motion for Summary Judgment ¶¶ 1-75, at 1-19, filed December 8, 2015 (Doc. 41)("Response"); Defendant's Reply in Support of its Motion for Summary Judgment at 1-13, filed December 31, 2015 (Doc. 46)("Reply").
1. Quiroz' Employment with ConocoPhillips.
Quiroz began working for ConocoPhillips in 1986. See MSJ ¶ 1, at 2 (asserting this fact)(citing Oral Deposition of Rudy Quiroz at 45:10-13 (taken October 12, 2015)("Quiroz Depo.") ); Response ¶ 1, at 1 (admitting this fact). During his employment, Quiroz received several promotions and held the position of Production Supervisor at the time ConocoPhillips terminated him. See MSJ ¶ 2, at 3 (asserting this fact)(citing Quiroz Depo. at 45:22-50:12); Response ¶ 2, at 1 (admitting this fact). As a Production Supervisor, Quiroz managed a group of employees who maintained well sites and a CO2 plant called the "Buckeye Operations" in southwest New Mexico. MSJ ¶ 3, at 3 (asserting this fact)(citing Quiroz Depo. at 54:11-56:22; ibr.US_Case_Law.Schema.Case_Body:v1">id
IMPACT is a reporting system that ConocoPhillips uses to track problems involving its facilities. See MSJ ¶ 4, at 3 (asserting this fact)(citing Oral Deposition of Donald John Blair at 34:1-37:17 (taken October 13, 2015)("Blair Depo.") ); Response ¶ 4, at 2 (admitting this fact). Health, Safety, and Environmental ("HSE") lead employees are responsible for supporting Production Supervisors like Quiroz, and his boss, Tommy Brooks, "all of whom can input any incidents into the IMPACT system." MSJ ¶ 4, at 3 (asserting this fact)(citing Blair Depo. at 34:1-37:17).3 Quiroz "understood that IMPACT is the *1277internal reporting mechanism to track all incidents." MSJ ¶ 5, at 3 (asserting this fact)(citing Quiroz Depo. at 69:19-73:25); Response ¶ 5, at 2 (admitting this fact). The HSE department reviewed the information entered into IMPACT and determined if an investigation was needed. See Response ¶ 5, at 2 (asserting this fact)(citing Quiroz Depo. at 72:2-19).4 "On an issue such as a release in the Buckeye area, Quiroz would be responsible to provide closure or cleanup information to one of the HSE people." See Response ¶ 4, at 2 (asserting this fact)(citing Blair Depo. at 37:2-17).5
Quiroz was the only Production Supervisor for the Buckeye area. See Response ¶ 6, at 2 (asserting this fact)(citing Quiroz Depo. at 53:14-54:10).
*1278"During his employment, Quiroz received two disciplinary actions." MSJ ¶ 9, at 4 (asserting this fact)(citing Quiroz Depo. at 76:4-86:15). See Response ¶ 9, at 3 (admitting this fact). The first "related to his failure to properly supervise a contract employee." MSJ ¶ 9, at 4 (asserting this fact)(citing Quiroz Depo. at 76:4-86:15).8 Quiroz was reprimanded for allowing a contract employee to assist with philanthropic activities, but Larry Dean, the Project Manager at the Buckeye facility, was not reprimanded, "even though he had four contractors on the Philanthropic Committee." Response ¶ 9, at 3 (asserting this fact)(citing Quiroz Depo. at 76:4-86:15).9 Quiroz' second disciplinary action related to Quiroz stating that he likes coffee the way he likes women, "black, hot and strong," a comment that a female African-American employee overheard. MSJ ¶ 9, at 4 (asserting this fact)(citing Quiroz Depo. at 76:4-86:15).10
2. ConocoPhillips' Employment Policies and Procedures.
"ConocoPhillips maintains an Equal Employment Opportunity Policy that Quiroz received, read, and understood during his employment. He also understood that he was an at-will employee who could be terminated with or without cause at any time." MSJ ¶ 10, at 4 (asserting this fact)(citing Quiroz Depo. at 87:8-88:16).
*1279See Response ¶ 10, at 3 (admitting this fact). The Equal Employment Opportunity Policy states in part:
The Company will not participate in nor condone any unlawful discrimination of any kind. This applies to, but is not limited to recruitment, advertising, hiring, training, promotion, transfer, demotion, layoff, termination, rate of pay or other forms of compensation, and all other aspects of employment.
....
Retaliatory treatment of any employee reporting discrimination, harassment, or other prohibited behavior is strictly forbidden and should be reported immediately to his/her supervisor, manager or human resources representative, HR Manager, Advisor of Employee Relations, or the Ethics Hotline.
Response ¶ 10, at 3 (asserting this fact)(citing Equal Employment Opportunity Policy at 2-3 (dated September 1, 2013), filed December 8, 2015 (Doc. 41-14) ).11 This policy applied to all ConocoPhillips employees. See Response ¶ 11, at 3 (asserting this fact)(citing Quiroz Depo. at 89:2-20).12
"ConocoPhillips also maintains a Code of Business Ethics and Conduct ... and Quiroz understood that if he failed to abide" by it, he could be disciplined or terminated. MSJ ¶ 11, at 4-5 (asserting this fact)(citing Code of Business Ethics and Conduct at 10, filed November 16, 2015 (Doc. 36-12)("Code of Conduct") ). See Response ¶ 11, at 3 (admitting this fact). The Code of Conduct states in part: "Supervisors have a special responsibility as leaders to act in a manner reflecting their position of trust and influence. If you are a supervisor you must: act as a role model by demonstrating a commitment to ConocoPhillips' culture of integrity, compliance and ethics...." MSJ ¶ 12, at 5 (asserting this fact)(quoting Code of Conduct at 10). See Response ¶ 12, at 3 (admitting this fact). The Code of Conduct also requires supervisors to "promptly report through appropriate channels all information received concerning any potential violation of company policy, regulations or the law." MSJ ¶ 12, at 5 (asserting this fact)(quoting Code of Conduct at 10). See Response ¶ 12, at 3 (admitting this fact). "Quiroz understood these requirements and annually certified that he was in compliance." MSJ ¶ 12, at 5 (asserting this fact)(citing Quiroz Depo. at 90:2-91:18). See Response ¶ 12, at 3 (admitting this fact). The Code of Conduct makes no distinction "between supervisory levels with respect to reporting violations of company policy, regulations, or the law. The Code states that disciplinary action, including termination, will result if an investigation reveals a violation of the Code of Conduct." MSJ ¶ 13, at 5 (asserting this fact)(citing Quiroz Depo. at 229:14-230:14; Code of Conduct at 10). See Response ¶ 13, at 4 (admitting this fact). The Code of Conduct further states: " '[R]eport and never ignore any known or suspected violations of our Code, policies, law or other requirements.' " MSJ ¶ 14, at 5 (asserting this fact)(quoting Code of Conduct at 6). See Response ¶ 14, at 4 (admitting this fact). The Code of Conduct explains how to report concerns:
If you become aware of a situation that may involve a violation of our Code, Company policy, or the law, you have a *1280responsibility to report it to one of the contacts listed here. Reporting actual or suspected misconduct allows our Company to investigate potential problems, stop actual misconduct and prevent future issues that could damage our reputation as an industry leader. To seek guidance or report a concern, you may contact any of the following resources: your supervisor or another manager you trust, your Human Resources representative, the Global Ethics Office within our Global Compliance & Ethics Organization, The ConocoPhillips Ethics HelpLine. You may also choose to report anonymously where local law allows by contacting The Ethics HelpLine.
MSJ ¶ 14, at 5 (asserting this fact)(quoting Code of Conduct at 8). See Response ¶ 14, at 4 (admitting this fact). The Code of Conduct " 'prohibits retaliation of any kind against employees for raising an ethical or legal concern or for participating in any investigation in good faith.... If you feel you or someone else is being retaliated against, report the situation immediately.' " MSJ ¶ 15, at 5-6 (asserting this fact)(quoting Code of Conduct at 9). See Response ¶ 15, at 4 (admitting this fact). It further states: " '[Y]ou will never face retaliation at ConocoPhillips for asking questions or raising concerns in good faith,' " and an employee can contact his or her " 'supervisor or another manager you trust,' " to report suspected misconduct. Response ¶ 12, at 3-4 (asserting this fact)(quoting Code of Conduct at 4, 8).
3. The Ethics Investigation Regarding the HSE-Related Incidents.
In March, 2013, Robert Dobbs, a subcontract employee of ConocoPhillips, notified ConocoPhillips HSE manager Donald Blair that an oil rig called the Philmex Battery # 3 had caught fire, which Dobbs believed was not reported in accordance with ConocoPhillips policy. See MSJ ¶ 17, at 6 (asserting this fact)(citing Report of Investigation at 4 (dated June 25, 2013), filed November 16, 2015 (Doc. 36-13)("Investigation Report") ).See Response ¶ 17, at 4 (admitting this fact). "Dobbs stated that he was concerned about the safety culture" at the ConocoPhillips Southeast New Mexico Production Office. MSJ ¶ 17, at 6 (asserting this fact)(citing Investigation Report at 4). See Response ¶ 17, at 4 (admitting this fact). Dobbs learned that another employee had also reported the fire to Larry Deen, the Surface Project Supervisor for the Buckeye facility. See Response ¶ 17, at 4 (asserting this fact)(citing Oral Deposition of Robert Alan Dobbs at 20:17-21:1, 23:13-21 (taken October 13, 2015)("Dobbs Depo.") ).15 Dobbs became *1281more concerned about safety when Brooks conducted a meeting on safety issues, but "omitted critical comments from a safety audit at the Buckeye Plant." Response ¶ 17, at 4 (asserting this fact)(citing Memorandum of Investigative Activity at 2-4, filed December 8, 2015 (Doc. 41-21)("Investigative Memo") ).16 Dobbs contacted Blair after learning that Brooks knew about the fire, though he never spoke with Quiroz about it. Response ¶ 17, at 5 (asserting this fact)(citing Dobbs Depo. at 40:20-41:1).17 Dobbs is now employed as a surface project lead supervisor with ConocoPhillips. See Response ¶ 17, at 5 (asserting this fact)(citing Dobbs Depo. at 5:21-7:2).18
After Dobbs spoke with Blair, Blair contacted Patterson about Dobbs' Philmex Battery Fire report. See Response ¶ 18, at 5 (asserting this fact)(citing Patterson Depo. at 26:25-27:13).
Quiroz knew that Dobbs had reported the fire, but "Quiroz was gathering information to come forward." Response ¶ 19, at 6 (asserting this fact)(citing Quiroz Depo. at 97:5-100:9).24 Quiroz began to accumulate information about the fire, including a report from Price, before Dobbs' report. See Response ¶ 19, at 6 (asserting this fact)(citing Quiroz Depo. at 97:5-100:9).25 Of the five HSE incidents, Quiroz *1283was present for only one, the fourth incident, involving a water spill, and the incident was reported into IMPACT. See Response ¶ 19, at 6 (asserting this fact)(citing Memorandum of Investigative Activity at 1-5 (dated April 4, 2013), filed November 16, 2015 (Doc. 36-15)("Bostic Memo") ).26
Patterson believed that Quiroz spoke with him on April 2, 2013, because Quiroz had heard about the Philmex Battery fire investigation and "wanted to get ahead of it."27 MSJ ¶ 21, at 7 (citing Patterson Depo. at 101:6-102:14)(asserting this fact).28 Proper procedure was to report the fire the day that it occurred, but Brooks did not report it, and Quiroz did not inform Maxey, Patterson, or the Ethics Office of Brooks' inaction. See MSJ ¶ 22, at 7 (citing Quiroz Depo. at 103:7-17).29 Quiroz did not, however, "have any of the facts on the fire" the day it occurred, but he reported it, as well as Brooks' instruction not to report it, to Patterson and Blair at their April 2, 2013 meeting, and also to Dobbs two days later. Response ¶ 22, at 7 (asserting this fact)(citing Quroz Depo. at 103:17-24).30
After Patterson met with Quiroz, he asked Maxey to investigate. See MSJ ¶ 23, at 7 (asserting this fact)(citing Patterson Depo. at 24:3-10; ibr.US_Case_Law.Schema.Case_Body:v1">id
An investigative team consisting of John Bostic, Michael Balentine, Ken Michaelis, and Gary Steger "conducted 22 interviews of managers, supervisors, employees and contract personnel as well as reviewed policies, procedures, and documents associated with the allegations." MSJ ¶ 24, at 7 (asserting this fact)(citing Investigation Report at 4-7); Response ¶ 24, at 7 (not disputing this fact).32 On April 4, 2013, Bostic interviewed Quiroz, who detailed the five HSE-related incidents, and alleged that Brooks instructed him and other employees not to report, or to under-report, the incidents. See MSJ ¶ 25, at 7-8 (asserting this fact)(citing Quiroz Depo. at 105:9-13; Investigation Report at 4); Response ¶ 25, at 7 (admitting this fact). Bostic summarized this interview in a written memorandum. See MSJ ¶ 26, at 8 (asserting this fact)(citing Quiroz Depo. at 108:5-109:22; Bostic Memo at 2-5); Response ¶ 26, at 7 (not disputing this fact). Quiroz testified that the Bostic Memo is accurate and does not contain any false information. MSJ ¶ 26, at 8 (asserting this fact)(citing Quiroz Depo. at 108:5-109:22).33 Quiroz also testified, however, that the stated basis for the investigation listed in the Bostic Memo is inaccurate. See Response ¶ 26, at 7 (asserting this fact)(citing Quiroz Depo. at 108:5-15).34 Specifically, the Bostic Memo states that the basis for the investigation was that Maxey reported that several HSE incidents occurred, but that employees were directed not to report, or under-report *1285them. See Bostic Memo at 1. Quiroz contends that the basis for the investigation was the information that he, and not Maxey, gave to Patterson and Blair. See Response ¶ 26, at 7 (citing Quiroz. Depo. at 108:5-15).35 Quiroz also did not witness the Philmex Battery fire. See Response ¶ 26, at 7 (asserting this fact)(citing Quiroz Depo. at 108:16-25).36
Quiroz knew that, after he spoke to Patterson and Bostic, the Ethics Office would investigate his allegations. See MSJ ¶ 27, at 8 (asserting this fact)(citing Quiroz Depo. at 188:2-22); Response ¶ 27, at 7 (not disputing this fact). Quiroz "believed ConocoPhillips investigated all of his claims." MSJ ¶ 27, at 8 (asserting this fact)(citing Quiroz Depo. at 188:2-22). See Response ¶ 27, at 7 (not disputing this fact).37 Quiroz also believes, however, that the investigation did not gather all of the details regarding each HSE incident, "and that the actions of some supervisors, who had knowledge of the incidents were omitted from the Report." Response ¶ 27, at 7 (citing Quiroz Depo. at 188:23-189:7).38
"[T]he investigation process is a separate operational activity to maintain independence so that [Patterson] could later make decisions as a result of what was discovered." MSJ ¶ 28, at 8 (asserting this fact)(citing Patterson Depo. at 22:5-18; ibr.US_Case_Law.Schema.Case_Body:v1">id
*12864. The Investigation's Findings Regarding the Five Incidents.
The investigation covered five HSE-related incidents: The first, the Philmex Battery fire, occurred on March 15, 2013; the second, the compressor fire, occurred on February 25, 2013; the third, the line crack, occurred on September 30, 2012; the fourth, the water spill, occurred on January 27, 2012; and the fifth, the valve cap rupture, occurred on September 7, 2011. See Response ¶ 21, at 6 (asserting this fact)(citing Investigation Report at 5).41
Quiroz learned about the Philmex Battery fire, the first incident, on March 15, 2013, the same day it occurred, from his subordinate, Ross. See MSJ ¶ 30, at 8 (asserting this fact)(citing Quiroz Depo. at 110:11-111:16); Response ¶ 30, at 8 (not disputing this fact). When Quiroz learned of the fire, he did not report it in IMPACT or to the Safety Audit Committee. See MSJ ¶ 30, at 8 (asserting this fact)(citing Quiroz Depo. at 110:11-111:16); Response ¶ 30, at 8 (not disputing this fact). Quiroz confirmed, however, that the fire had been reported to Brooks. See Response ¶ 30, at 8 (asserting this fact)(citing Quiroz Depo. at 110:11-112:12).42 The Investigation Report's key findings regarding the Philmex Battery fire do not mention Quiroz. See Response ¶ 30, at 8 (asserting this fact)(citing Investigation Report at 9-10; Investigation Report Part 2 at 1-10).43
Three days later, on March 18, 2013, Quiroz learned that Brooks "had not properly reported the fire because it did not show up in IMPACT by that date. Quiroz did not, however, report the incident in IMPACT or to the Safety Audit Committee." MSJ ¶ 31, at 9 (asserting this fact)(citing Quiroz Depo. at 111:17-113:4;
The second incident involves a plant compressor fire. See MSJ ¶ 33, at 9 (asserting this fact)(citing Quiroz Depo. at 116:20-117:7; Bostic Memo at 2-5); Response ¶ 33, at 9 (admitting this fact). Quiroz learned about this fire from his subordinate, Price. See MSJ ¶ 33, at 9 (asserting this fact)(citing Quiroz Depo. at 116:20-117:7; Bostic Memo at 2-5); Response ¶ 33, at 9 (admitting this fact). Quiroz called Brooks to inform him of the fire and told another subordinate, Gates, "to go to the plant to investigate the situation." MSJ ¶ 33, at 9 (asserting this fact)(citing Quiroz *1287Depo. at 116:20-117:7; Bostic Memo at 2-5). See Response ¶ 33, at 9 (admitting this fact). Brooks told Quiroz that they would have to clean up the fire damage "and not say a word about the incident because the Safety Audit Team was on-site and they [did] not need more exposure." MSJ ¶ 34, at 9 (asserting this fact)(citing Quiroz Depo. at 117:16-118:7; Bostic Memo at 2-5). See Response ¶ 34, at 9 (admitting this fact). Quiroz then called Price and told him not to report the fire. See MSJ ¶ 34, at 9 (asserting this fact)(citing Quiroz Depo. at 117:16-118:7; Bostic Memo at 2-5); Response ¶ 34, at 9 (admitting this fact). Quiroz also told Price to "get the machine up and running." MSJ ¶ 35, at 9 (asserting this fact)(citing Quiroz Depo. at 119:7-17; ibr.US_Case_Law.Schema.Case_Body:v1">id
Quiroz does not know if anyone else operating the plant at which the fire occurred was instructed not to report the fire, and he "did not speak to any of them about the incident." MSJ ¶ 36, at 9 (asserting this fact)(citing Quiroz Depo. at 120:24-121:22). See Response ¶ 36, at 9 (not disputing this fact). The Investigation Report found, however, that Price had written the words "gas leak" in his report, and that Price had instructed two other employees to delete references to a fire from an operator log. See Response ¶ 36, at 9 (asserting this fact)(citing Investigation Report Part 2 at 2).46 Brooks eventually admitted that he had instructed Quiroz not to report the incident. See Response ¶ 36, at 9 (asserting this fact)(citing Investigation Report Part 2 at 2).47
Quiroz knew that Brooks' instruction not to report the compressor fire was contrary to ConocoPhillips' policy, but Quiroz did not report Brooks' violation until Quiroz' April 2, 2013, meeting with Patterson. See MSJ ¶ 37, at 9 (asserting this fact)(citing Quiroz Depo. at 118:8-25); Response ¶ 37, at 9 (not disputing this fact). Quiroz waited until April 2, 2013, to report Brooks' policy violation so that Quiroz could gather information *1288about the incident. See Response ¶ 37, at 9 (asserting this fact)(citing Quiroz Depo. at 118:15-22).48 Quiroz never reported the compressor fire in IMPACT or to the Safety Audit Team, and did not report it until the April 2, 2013, meeting with Patterson. See MSJ ¶ 38, at 10 (asserting this fact)(citing Quiroz Depo. at 121:23-122:2); Response ¶ 38, at 9 (not disputing this fact). It was Gates' job, however, and not Quiroz', to enter information into IMPACT. See Response ¶ 38, at 9 (asserting this fact)(citing Quiroz Depo. at 120:1-13).49
The third incident occurred when a liquid condensation line cracked and released natural liquid gas, a dangerous and volatile liquid. See MSJ ¶ 39, at 10 (asserting this fact)(citing Quiroz Depo. at 122:15-123:5; Bostic Memo at 2-5); Response ¶ 39, at 10 (not disputing this fact). Josh Hill, a plant operator, discovered the leak and reported it to Price. See Response ¶ 39, at 10 (asserting this fact)(citing Investigation Report Part 2, at 3).50 Brooks was notified and told Price not to submit the leaking pipe for testing, because it would lead to an investigation. See Response ¶ 39, at 19 (asserting this fact)(citing Investigation Report Part 2 at 4).51 Quiroz learned of this incident "in a matter of days" after it happened. MSJ ¶ 39, at 10 (asserting this fact)(citing Quiroz Depo. at 122:15-123:5; Bostic Memo at 2-5); Response ¶ 39, at 10 (not disputing this fact). "Price told Quiroz that Brooks had instructed him not to report the [leak]." MSJ ¶ 40, at 10 (asserting this fact)(citing Quiroz Depo. at 125:6-126:12); Response ¶ 40, at 10 (not disputing this fact). Quiroz knew that the leak had not been properly reported when it occurred in September, 2012, but he did not report the leak until the April 2, 2013, meeting, because he was "relying on Brooks to follow reporting procedure, and was unsure whether Brooks was getting any direction from Maxey." MSJ ¶ 40, at 10 (asserting this fact)(citing Quiroz Depo. at 125:6-126:12). See Response ¶ 40, at 10 (not disputing this fact). The Investigation Report reflects that Quiroz had no involvement with the line-crack incident itself, because he was out of town when it occurred. See Response ¶ 39, at 10 (asserting this fact)(citing Investigation Report Part 2 at 3-5).52
The fourth incident involved a water spill from an injection well.
About a month after the fourth incident, Maxey led a meeting where it became apparent that the water spill had been inaccurately reported. See Response ¶ 41, at 10 (asserting this fact)(citing Quiroz Depo. at 132:16-133:16).57 The investigators knew about this meeting, and knew that the water spill was discussed, but they never pursued that information, even though a goal of the investigation was to discover whether employees knew that HSE incidents were unreported or under-reported. See Response ¶ 41, at 10-11 (asserting this fact)(citing Oral Deposition of Michael Balentine at 127:3-19 (taken November 4, 2015)("Balentine Depo."); Investigation Report at 5-6).58 Balentine, one of *1290the investigators, acknowledged that the meeting discussion was relevant to the investigation's goal. See Response ¶ 10, at 11 (asserting this fact)(citing Balentine Depo. at 128:1-16).59 A person reading the Investigation Report could have asked the investigators to inquire whether Maxey knew that the water spill had been under-reported, but no one did. See Response ¶ 41, at 11 (asserting this fact)(citing Balentine Depo. 128:17-23).60 Maxey knew about the water spill, because he attended the meeting, but he did not report it. See Response ¶ 43, at 11 (asserting this fact)(citing Quiroz Depo. at 132:4-133:4).61
The fifth incident involves a valve cap that blew off of a compressor. See MSJ ¶ 45, at 11 (asserting this fact)(citing Quiroz Depo. at 135:24-138:18; Bostic Memo at 2-5); Response ¶ 45, at 11 (not disputing this fact). Price called Quiroz and informed him of the problem. See MSJ ¶ 45, at 11 (asserting this fact)(citing Quiroz Depo. at 135:24-138:18; Bostic Memo at 2-5); Response ¶ 45, at 11 (not disputing this fact). Quiroz told Price that he would inform Brooks, and Quiroz then called Brooks. See MSJ ¶ 45, at 11 (asserting this fact)(citing Quiroz Depo. at 135:24-138:18; Bostic Memo at 2-5); Response ¶ 45, at 11 (not disputing this fact). Brooks told Quiroz to inform Price that Brooks would discuss the matter with Price directly, because Quiroz was out of town. See MSJ ¶ 45, at 11 (asserting this fact)(citing Quiroz Depo. at 135:24-138:18; Bostic Memo at 2-5); Response ¶ 45, at 11 (not disputing this fact).
It is unclear exactly what happened next, but at some point, Price gave instructions not to report the incident. See Response ¶ 45, at 11 (asserting this fact)(citing Investigation Report Part 2 at 708).62 Brooks also called Gates and told Gates that the incident never happened. See Response ¶ 45, at 11 (asserting this fact)(citing Investigation Report Part 2 at 708).63
When Quiroz returned to work a few days later, he learned that the valve cap rupture "had not been properly reported, but he did not take any steps to properly report" it. MSJ ¶ 46, at 11 (asserting this fact)(citing Quiroz Depo. at 137:3-138:8). See Response ¶ 46, at 12 (not disputing this fact). Specifically, Quiroz learned that Brooks directed Gates not to report the incident. See Response ¶ 46, at 12 (asserting this fact)(citing Bostic Memo at 4).64
*12915. The Investigation Report.
The investigation determined that the five HSE incidents were not properly reported, thus violating ConocoPhillips' policy. See MSJ ¶ 47, at 11 (asserting this fact)(citing Investigation Report at 7-10; Investigation Report Part 2 at 1-10); Response ¶ 47, at 12 (not disputing this fact). "The investigation concluded that Brooks, Quiroz, Kidd, Price, and Gates knew or should have known that failing to properly report the incidents" violated ConocoPhillips' policy, and their actions jeopardized employees' health and safety. MSJ ¶ 48, at 11 (asserting this fact)(citing Investigation Report at 7-10; Investigation Report Part 2 at 1-10).65 The Investigation Report also stated, however, that
"it is fair to point out that there is no evidence that Quiroz, Kidd, Price, or Gates acted with malice and based their decision to not report and investigate the incidents based on instructions they received directly or indirectly from Brooks.
....
In every case, the actions of the employees were believed to have been done based on directives given [to] them by their respective supervisors, cascading upward through the chain of command to the supervisory position held by Tommy Brooks."
Response ¶ 48, at 12-13 (asserting this fact)(quoting Investigation Report at 9).66 The Investigation Report further states:
Investigation determined that the five HSE-related incidents reported to the ethics office [...] occurred as alleged by the Report(s). In addition, there was sufficient evidence to substantiate the allegation that the five incidents were not reported or were under-reported in violation of Company policy; in each instance, at the direction of the senior responsible person, Tommy Brooks. Brooks instructed subordinate employees to conceal the occurrence of the incidents which subsequently contributed to the misconduct of some of the employees identified in this report; all of whom subsequently carried out Brooks' instructions.
Through the uniform cooperation of employees interviewed, the investigation verified that employees carried out Brooks' instructions and did not report or under-reported incidents, even *1292though it appeared evident that they objected to being instructed to do so. Numerous details obtained and documented in their statements support this finding. It was also clear that the safety of the working employees was put at risk by the lack of any post-incident investigation, and that the compelling fact[s] support their statements of disagreeing with the decisions made to not report or under-report incidents by a person not put at risk in daily work situations.
Response ¶ 47, at 12 (asserting this fact)(citing Investigation Report at 7).67
Patterson played a role in Quiroz' termination. See MSJ ¶ 49, at 11 (citing Patterson Depo. at 46:7-47:8).
*1293Quiroz, who is Hispanic, Brooks, who is African-American, Gates, who is Anglo, and Kidd, who is Anglo, were all terminated "for their roles in failing to properly report" the five incidents described above. MSJ ¶ 53, at 12 (asserting this fact)(citing Quiroz Depo. at 191:13-18; Patterson Depo. at 49:12-20). See Response ¶ 53, at 13 (admitting this fact). Patterson terminated Kidd, because Kidd failed to cooperate in the investigation. See MSJ ¶ 54, at 12 (asserting this fact)(citing Patterson Depo. at 90:15-91:21). See Response ¶ 54, at 13 (not disputing this fact). Patterson terminated Gates, because, as an HSE professional, Gates was expected to report HSE-related incidents to management even when Gates' managers instructed him otherwise. See MSJ ¶ 54, at 12 (asserting this fact)(citing Patterson Depo. at 90:15-91:21); Response ¶ 54, at 13 (not disputing this fact). The Investigation Report noted that Gates' position as an HSE lead " 'lacked the required independence and autonomy to be effective in managing the HSE activities of the organization.' " Response ¶ 54, at 13 (asserting this fact)(quoting Investigation Report Part 2 at 9).71
Price received a written warning, but was not terminated, because he had received directions regarding the various safety incidents from two different levels of management above him, Quiroz and Brooks. See MSJ ¶ 55, at 12 (asserting this fact)(citing Code of Conduct at 10; Patterson Depo. at 67:2-68:19); Response ¶ 55, at 14 (not disputing this fact).72 Quiroz also acted upon the instructions of his supervisor, Brooks. See Response ¶ 55, at 14 (asserting this fact)(citing Investigation Report at 9).73
On May 28, 2013, Maxey and Human Resources Representative Melissa McCarty informed Quiroz of his termination. See MSJ ¶ 56, at 12-13 (asserting this fact)(citing Quiroz Depo. at 144:2-146:20); Response ¶ 56, at 14 (admitting this fact). Maxey told Quiroz that he was terminated, because he had failed to properly report the five incidents described above. See MSJ ¶ 56, at 13 (asserting this fact)(citing Quiroz Depo. at 144:2-146:20); Response ¶ 56, at 14 (admitting this fact). Quiroz knew at the time he was terminated that Maxey did not make the decision to terminate him. See MSJ ¶ 57, at 13 (asserting this fact)(citing Quiroz Depo. at 146:2-16).74 At the time this case commenced, *1294Quiroz did not know who decided to terminate him, nor the decision-makers' races or national origins. See MSJ ¶ 57, at 13 (asserting this fact)(citing Quiroz Depo. at 146:2-16); Response ¶ 57, at 14 (not disputing this fact).
When Maxey and McCarty informed Quiroz of his termination, no one mentioned Quiroz' race or national origin, and neither Maxey nor McCarty said that Quiroz had been terminated because of his April 2, 2013 report to Patterson. See MSJ ¶ 58, at 13 (asserting this fact)(citing Quiroz Depo. at 146:21-147:5); Response ¶ 58, at 14 (admitting this fact). Instead, Maxey and McCarty told Quiroz that he was terminated, because he failed to properly report the various HSE-related incidents over the course of two years. See MSJ ¶ 58, at 13 (asserting this fact)(citing Quiroz Depo. at 146:21-147:5); Response ¶ 58, at 14 (admitting this fact). Quiroz did not make any reports to Human Resources about discrimination during or after his employment at ConocoPhillips. See MSJ ¶ 59, at 13 (asserting this fact)(citing Quiroz Depo. at 200:5-10); Response ¶ 59, at 14 (not disputing this fact).75 Other employees were terminated as a result of the investigation, but Quiroz did not know why the others were terminated. See MSJ ¶ 60, at 13 (asserting this fact)(citing Quiroz Depo. at 190:5-191:12); Response ¶ 60, at 14 (not disputing this fact). Quiroz acknowledged that the reasons for terminating some employees, but not others, might vary based on the employee's responsibilities, level of knowledge, or level of cooperation. See MSJ ¶ 60, at 13 (asserting this fact)(citing Quiroz Depo. at 190:5-191:12).76
6. The Discrimination Allegations.
Quiroz filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the New Mexico Department of Workforce Solutions, alleging national origin discrimination, race discrimination, and wrongful termination, because he reported the five HSE incidents to Patterson. See MSJ ¶ 61, at 13-14 (asserting this fact)(citing Quiroz Depo. at 151:7-152:2; Charge of Discrimination at 1 (dated November 6, 2013), filed November 16, 2015 (Doc. 36-19) ); Response ¶ 61, at 14 (admitting this fact). Quiroz is Hispanic and his national origin is United States.
*1295See MSJ ¶ 62, at 14 (asserting this fact)(citing Quiroz Depo. at 153:12-154:1); Response ¶ 62, at 14 (admitting this fact). Quiroz believes that he was unlawfully terminated, and that Price and Larry Deen, another ConocoPhillips employee, should have been terminated, but Quiroz "does not know why they were not terminated and others were." MSJ ¶ 63, at 14 (asserting this fact)(citing Quiroz Depo. at 154:5-22). See Response ¶ 63, at 14 (admitting this fact).
In his Complaint, Quiroz alleges that Bostic, one of the investigators, " 'failed to look at the role played by Maxey in non-reporting or under-reporting events including instances where Maxey had encouraged or tolerated previous instances on non-reporting or under-reporting.' " MSJ ¶ 64, at 14 (asserting this fact)(quoting Quiroz v. ConocoPhillips Company, No. CV-2014-00850 ¶ 17, at 7 (Fifth Judicial District Court, County of Lea, State of New Mexico), filed in federal court November 20, 2014 (D.N.M. Doc. 1-1)("Complaint") ). See Response ¶ 64, at 14 (not disputing this fact). Bostic did not interview Maxey, however, because " 'the allegations that were brought forward to us did not implicate [Maxey] in any wrongdoing.' " Response ¶ 64, at 14 (asserting this fact) (alteration added)(quoting Oral Deposition of John Bostic at 62:1-7 (taken November 3, 2015)("Bostic Depo.") ).77
Quiroz further alleged that Gates and Kidd are not similarly situated to Quiroz. See MSJ ¶ 65, at 14 (asserting this fact)(citing Complaint ¶ 22, at 25); Response ¶ 65, at 15 (admitting this fact). Quiroz later testified that neither Gates nor Kidd "had the same level of supervision as he did, and admitted they both directly reported to Quiroz." MSJ ¶ 65, at 14 (asserting this fact)(citing Quiroz Depo. at 191:22-193:5).See Response ¶ 65, at 15 (admitting this fact). Quiroz further testified that he is not similarly situated to Gates and Kidd, because he, and not Gates or Kidd, is the employee who reported the HSE incidents to Patterson. See MSJ ¶ 66, at 14 (asserting this fact)(citing Quiroz Depo. at 192:24-193:11).78 Quiroz also testified that Dobbs reported one of the HSE incidents before Quiroz did, but Dobbs was not terminated. See MSJ ¶ 66, at 14 (asserting this fact)(citing Quiroz Depo. at 143:19-144:12); Response ¶ 66, at 15 (not disputing this fact). Deen was also not terminated, even though he knew about the Philmex Battery fire and did not report it. See Response ¶ 66, at 15 (asserting this fact)(citing Quiroz Depo. at 193:6-21).79
*1296"Quiroz does not know if anyone implicated Maxey during the investigation." MSJ ¶ 67, at 14 (asserting this fact)(citing Quiroz Depo. at 143:19-144:12). See Response ¶ 67, at 15 (not disputing this fact). Evidence was available to the investigators, however, that Maxey knew that the water spill was under-reported. See Response ¶ 67, at 15 (asserting this fact)(citing Balentine Depo. at 127:3-19).80
Quiroz believes that ConocoPhillips treated Deen and Price, who are of a different race and national origin than Quiroz, better than Quiroz. See MSJ ¶ 68, at 14 (asserting this fact)(citing Quiroz Depo. at 147:21-24). See Response ¶ 68, at 15 (admitting this fact). Quiroz does not know if Deen and Price knew about all five HSE incidents. See MSJ ¶ 68, at 14-15 (asserting this fact)(citing Quiroz Depo. at 147:21-24); Response ¶ 68, at 15 (admitting this fact). "Quiroz does not know whether any witnesses implicated Price or Deen during the investigation, or accused them of falsifying records, or instructing others not to follow the proper reporting procedures." MSJ ¶ 69, at 15 (asserting this fact)(citing Quiroz Depo. at 149:23-151:6). See Response ¶ 69 at 15-16 (not disputing this fact).
According to the Investigation Report, however, Price admitted to instructing others to alter company records, and he disposed of physical evidence. See Response ¶ 69, at 15 (asserting this fact)(citing Investigation Report at 8-9).81
The Investigation Report also excludes any discussion of Deen, and does not mention that Deen had any knowledge of the Philmex Battery fire or Brooks' instructions not to report it. See Response ¶ 69, at 15 (asserting this fact)(citing Investigation Report at 9-10).82
*1297"Quiroz did not tell the investigators during his interview that Deen and Price told employees not to follow proper reporting procedures or to falsify records." MSJ ¶ 70, at 15 (asserting this fact)(citing Quiroz Depo. at 150:17-151:6).83
Quiroz told the investigators, however, that Deen was present or was a witness to the Philmex Battery fire. See Response ¶ 70, at 16 (asserting this fact)(citing Bostic Memo at 2).84 He also told the investigators, in regard to the line-crack incident, that logs were missing and that Brooks told Price not to report the incident. See Response ¶ 70, at 16 (asserting this fact)(citing Bostic Memo at 3).85 Quiroz does not know why Ross, who is African-American, or Deen who is Anglo, were not terminated. See MSJ ¶ 71, at 15 (asserting this fact)(citing Quiroz Depo. at 116:2-19); Response ¶ 71, at 16 (admitting this fact).
Patterson was not presented with any evidence "that Deen instructed anyone to destroy evidence or not report incidents." MSJ ¶ 72, at 15 (asserting this fact)(citing Patterson Depo. at 96:11-97:8).86 Patterson acknowledged that the Investigation Report indicated that Deen knew about unreported *1298incidents, but Patterson did not know that when ConocoPhillips terminated Quiroz. Response ¶ 72, at 16 (asserting this fact)(citing Patterson Depo. at 96:20-97:8).87
Quiroz testified that all five HSE incidents described in the Investigation Report should have been reported in IMPACT. See MSJ ¶ 73, at 15 (asserting this fact)(citing Quiroz Depo. at 123:6-19); Response ¶ 73, at 16 (not disputing this fact). It was Gates' job to report the HSE incidents into IMPACT. See Response ¶ 73, at 16 (asserting this fact)(citing Quiroz Depo. at 74:1-9).88
"Quiroz has no knowledge or evidence that Maxey directed Brooks to under-report or not report any of the HSE-related incidents, and Maxey never instructed Quiroz to not follow proper reporting procedure." MSJ ¶ 74, at 15 (citing Quiroz Depo. at 115:3-9;
"Patterson was not presented with any evidence or allegations that Maxey had prior knowledge of the incidents that were improperly reported." MSJ ¶ 75, at 15 (asserting this fact)(citing Patterson Depo. at 99:21-100:7). See Response ¶ 75, at 16 (not disputing this fact). Patterson did not know about the meeting where Maxey learned that the water spill was under-reported, and the Investigation Report does not mention the meeting. See Response ¶ 75, at 16 (asserting this fact)(citing Patterson Depo. at 99:21-100:12).91
7. Quiroz' Additional Facts.
Quiroz asserts the following additional facts in his Response. See Response at 17-19. ConocoPhillips does not address these factual allegations in its Reply. The Court therefore deems these facts undisputed. See Fed. R. Civ. P. 56(e)(2) ; D.N.M.L.R.-Civ. 56.1(b)("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.").
*1299Quiroz never told anyone to alter records. See Response ¶ 3, at 17 (asserting this fact)(citing Quiroz Depo. at 129:6-25). All of the incidents in question were reported to Brooks. See Response ¶ 4, at 17 (asserting this fact)(citing Quiroz Depo. at 131:13-132:5). Quiroz was told that he was fired for failing to report incidents, although he eventually came forward and reported them. See Response ¶ 5, at 17 (asserting this fact)(citing Quiroz Depo. at 144:21-145:20). Quiroz believes that Deen and Price were treated better than Quiroz because of race and national origin. See Response ¶ 6, at 17 (asserting this fact)(citing Quiroz Depo. at 147:24-148:5).92 Quiroz told the truth to the investigators. See Response ¶ 7, at 17 (asserting this fact)(citing Balentine Depo. at 93:3-7). Quiroz reported more information than the Philmex Battery fire, which ConocoPhillips might not have otherwise learned. See Response ¶ 8, at 17 (asserting this fact)(citing Balentine Depo. at 123:17-125:9). The five HSE incidents listed in the Investigation Report are those that Quiroz reported. See Response ¶ 9, at 18 (asserting this fact)(citing Balentine Depo. at 63:23-65:2). The investigation's scope never expanded beyond the five HSE incidents that Quiroz reported. See Response ¶ 10, at 18 (asserting this fact)(citing Balentine Depo. at 87:3-9).
John Coy, a supervisor on Quiroz' level who also reported to Brooks, told investigators that Brooks instructed him not to report the findings of an HSE field audit. See Response ¶ 11, at 18 (asserting this fact)(citing Balentine Depo. at 93:8-95:7). The investigators include this information in the Investigation Report, but no one told the investigators to follow-up on this information. See Response ¶ 11, at 18 (asserting this fact)(citing Balentine Depo. at 93:8-95:7). Another employee, Curtis Bales, told the investigators about an incident that occurred in 2012 which Brooks told him not to report. See Response ¶ 12, at 18 (asserting this fact)(citing Balentine Depo. at 96:8-101:15). Quiroz' last employment evaluation with ConocoPhillips was positive. See Response ¶ 13, at 18 (asserting this fact).93
PROCEDURAL BACKGROUND
Quiroz filed this lawsuit in state district court on October 6, 2014. See Complaint at 3. The Complaint asserts the following claims against ConocoPhillips: (i) unlawful racial and national origin discrimination in violation of Title VII, 42 U.S.C. §§ 2000e-2, and the NMHRA,
1. The MSJ.
ConocoPhillips first argues that Quiroz' national origin and racial discrimination claims fail as a matter of law. See MSJ at 16. Specifically, ConocoPhillips contends that Quiroz cannot establish a prima facie racial discrimination case, see MSJ at 17, because he violated ConocoPhillips' Code of Conduct by failing to properly report the five HSE incidents and instructed his subordinates not to follow proper reporting procedures, see MSJ at 18. According to ConocoPhillips, "Quiroz and three other supervisors/employees of different races were terminated for their roles in failing to properly report the five HSE-related incidents.... [A]ccordingly, Quiroz cannot establish ... that he was performing up to ConocoPhillips' expectations and therefore his discrimination claims fail as a matter of law." MSJ at 19.
ConocoPhillips next avers that "Quiroz cannot establish that others outside his protected classes were treated more favorably than he was." MSJ at 19. Specifically, ConocoPhillips argues that its treatments of Maxey, Deen, and Price are not proper comparisons to Quiroz' treatment, see MSJ at 19, because "Quiroz acknowledged that he has no evidence that Price, Deen, or Maxey were actually implicated during the investigation." MSJ at 19-20. Further, according to ConocoPhillips, "Maxey, Deen and Price are not proper comparators because [Quiroz] is the only one out of those employees who actually made a report to Patterson on April 2, 2013." MSJ at 20 (alteration added).
Next, ConocoPhillips argues that Quiroz' Title VII retaliation claim fails as a matter of law, because "Quiroz did not engage in a protected activity." MSJ at 21. Specifically, ConocoPhillips contends that Quiroz' report to Patterson "is not related to any conduct that is proscribed by Title VII or the NMHRA and does not constitute a protected activity." MSJ at 22. ConocoPhillips continues that Quiroz has no evidence that his report to Patterson was the "but for" cause of his termination. MSJ at 22.
ConocoPhillips next avers that it had legitimate non-discriminatory and non-retaliatory reasons for terminating Quiroz, see MSJ at 23, and that Quiroz "has no evidence that Patterson or anyone involved in the decision to terminate him were not acting in good faith or that Patterson did not honestly believe that Quiroz had engaged in the conduct for which he was terminated." MSJ at 24. According to ConocoPhillips, "ConocoPhillips terminated Quiroz' employment because of numerous, egregious violations of its policies," which are legitimate non-discriminatory and non-retaliatory reasons for Quiroz' termination. MSJ at 25.
Finally, ConocoPhillips contends that Quiroz' wrongful termination claim also fails as a matter of law. See MSJ at 25. ConocoPhillips alleges that "Quiroz cannot demonstrate that he was terminated because he performed any act that New Mexico public policy has authorized or encouraged but rather he engaged in acts that demonstrate the opposite." MSJ at 26-27. For this reason, ConocoPhillips concludes that Quiroz' wrongful termination claim must fail. See MSJ at 27. ConocoPhillips concludes that the Court should grant its MSJ. See MSJ at 27.
2. The Response.
Quiroz responds to the MSJ. See Response at 1. Quiroz first argues that he has shown a prima facie case of racial discrimination. See Response at 22. He contends that he is Hispanic, a member of a protected class, and that he suffered an adverse employment action, being terminated. See Response at 23. He then argues that, although *1301he was terminated, some Anglo supervisors were not, even though they knew that some of the HSE-incidents were not reported. See Response at 23. Specifically, Quiroz contends that Maxey, Deen, Coy, and Price, who are all Anglo, and kept their jobs, were treated better than Quiroz. See Response at 23-24. Quiroz contends that these facts show an inference of discrimination. See Response at 26.
Quiroz next avers that ConocoPhillips' given reasons for terminating him are pretextual. See Response at 28. Quiroz contends that he was terminated before the Investigation Report was issued; that, in any event, the Investigation Report favors Anglo employees; and that the Investigation Report found no evidence that Quiroz acted with malice. See Response at 30. Quiroz concludes that ConocoPhillips' stated reasons for terminating Quiroz are pretextual. See Response at 30.
Finally, Quiroz contends that his wrongful termination claim should succeed. See Response at 31. He asserts that his act of reporting the five HSE incidents "is an act [that] public policy would favor and he was terminated as a result of those disclosures." Response at 31 (citing Gonzales v. City of Albuquerque,
3. The Reply.
ConocoPhillips replied to the Response. See Reply at 1. ConocoPhillips first argues that Quiroz improperly relies on inadmissible evidence in the Response. See Reply at 2. According to ConocoPhillips, "[r]ather than opposing ConocoPhillips' Motion with specific facts that are supported by the record and admissible at trial as Rule 56 requires, Quiroz relies on speculative assumptions, inaccurate characterizations of testimony, [and] conclusory allegations." Reply at 3 (alteration added). ConocoPhillips contends that the Court cannot consider such "generalized and unsupported statements in opposition to ConocoPhillips' Motion." Reply at 3.
Turning to the merits, ConocoPhillips next contends that "Quiroz cannot establish a prima facie case of race discrimination." Reply at 3. To establish such a case, ConocoPhillips contends that Quiroz must show that he is a member of a protected class, was performing his job satisfactorily, and suffered an adverse employment action because of his race. See Reply at 4. ConocoPhillips concedes that Quiroz is Hispanic, a member of a protected class, but contends that Quiroz was not performing his job satisfactorily, because he did not timely report the five HSE incidents, thus violating ConocoPhillips' Code of Conduct. See Reply at 4. ConocoPhillips continues that Quiroz cannot establish "that others outside of his protected class were treated more favorably than he was." Reply at 5. According to ConocoPhillips, it is unfair to compare its treatments of Maxey, Deen, Coy, and Price, none of whom were terminated, to its treatment of Quiroz, because "the investigation did not reveal that they violated work rules of comparable seriousness and Quiroz does not provide any citations to the record establishing that they engaged in the same conduct as he did." Reply at 5. According to ConocoPhillips, the correct person with whom to compare Quiroz is Dobbs, because Dobbs engaged in the same conduct as Quiroz, namely, reporting the HSE incidents. See Reply at 6.
ConocoPhillips next argues that it has shown legitimate, non-discriminatory reasons for terminating Quiroz, and that Quiroz cannot establish that those reasons are pretext. See Reply at 8. Specifically, ConocoPhillips avers that Patterson terminated Quiroz, because Quiroz did not report the HSE incidents, concealed them, and directed *1302other employees not to report them. See Reply at 8. Further, Patterson terminated Quiroz, ConocoPhillips contends, because Quiroz was a supervisor and held to a higher standard than his subordinates. See Reply at 9. ConocoPhillips concludes that Quiroz cannot show that Patterson's reasons for terminating him were pretextual. See Reply 11.
Finally, ConocoPhillips briefly addresses Quiroz' retaliation and wrongful termination claims. See Reply at 11-12. ConocoPhillips argues that, "although Quiroz alleges a Title VII retaliation claim in his Complaint, he completely abandons this claim in his Response." Reply at 11. Regarding the wrongful termination claim, ConocoPhillips briefly contends that it fails as a matter of law, because Quiroz "engaged in conduct that jeopardized the safety and welfare of his co-workers and the public at large." Reply at 12. ConocoPhillips concludes that the Court should grant its MSJ. See Reply at 12-13.
4. The Hearing.
The Court held a hearing on September 26, 2016. See Draft Transcript of Motion Hearing (taken September 26, 2016)("Tr.").94 ConocoPhillips first asserted that Quiroz cannot establish a prima facie case of race discrimination, because he cannot show that there is "evidence of circumstances giving rise to an inference of race discrimination." Tr. at 7:13-14 (Oller). The Court responded that "doesn't the mere fact that you've got five individuals basically all doing the same [thing] and you mete out different punishments" suggest an inference of race discrimination, even if ConocoPhillips can later show legitimate non-discriminatory reasons for its actions. Tr. at 9:12-14 (Court). ConocoPhillips replied that Quiroz had not made such an argument, see Tr. at 9:18-19 (Oller), but, rather, Quiroz had "chosen to try an[d] compare himself to people who weren't implicated in the report, and say ... why weren't these people implicated." Tr. at 13:10-13 (Oller).
ConocoPhillips continued that, in any event, it had established legitimate non-discriminatory reasons for terminating Quiroz, because Patterson testified that he terminated Quiroz for failing "to report incidents that he knew had not been properly reported, covered up incidents when he shouldn't have, ordered evidence destroyed, and told other subordinate employees not to report evidence." Tr. at 15:18-21 (Oller). ConocoPhillips added that Patterson terminated Quiroz, but not Price, because Price received direction from both Quiroz and Brooks to cover up the HSE incidents. See Tr. at 17:17-21 (Oller).
Quiroz then took the podium. See Tr. at 22:3 (Newell). Quiroz began by conceding both his retaliation claim and his national origin discrimination claim. See Tr. at 22:5-14 (Newell, Court). Quiroz then argued that Coy and Deen were both similarly situated to Quiroz, but neither was terminated. See Tr. at 35:6-25 (Newell); id. at 36:1-3 (Newell). Quiroz argued that "those who didn't receive discipline show or at least provide enough information for us to meet our prima facie burden at the summary judgment stage that there were other reasons, discriminatory reasons, for the punishment that was imposed on Quiroz." Tr. at 36:7-12 (Newell).
The Court asked Quiroz "if I were to agree with [ConocoPhillips] on the Title VII [race] claim I'm assuming that you would want me to remand all the state-claim issues back to state court," Tr. at *130347:24-25 (Court); id. at 48:1-3 (Court), to which Quiroz replied "yes," Tr. at 48:4 (Newell). Quiroz then pivoted to his last point, asserting that ConocoPhillips' ethics policies apply equally to Quiroz and Price, despite ConocoPhillips' argument that Quiroz was held to a higher standard than Price. See Tr. at 48:14-19 (Newell). Quiroz continued that, if he "is going to be held accountable for having knowledge of incidents that were not reported, then certainly Mr. Price should, Mr. Deen should, and certainly someone should have looked into what Mr. Maxey knew." Tr. at 49:15-20 (Newell).
ConocoPhillips then responded to some of Quiroz' arguments. See Tr. at 50:20-23 (Oller). ConocoPhillips contended that Patterson "felt in his opinion that he would hold managers to a higher stand[ard], that's how he personally handled these issues." Tr. at 50:21-23 (Oller). ConocoPhillips continued that, regarding pretext, "Quiroz has to come forward with evidence that the reasons given for his termination were false, that they were not accurate reasons.... [T]he falsity is not there." Tr. at 52:11-15 (Oller). "Patterson reasonably believed, based on the other witnesses' testimony, that Mr. Quiroz ordered employees to falsify and destroy evidence." Tr. at 55:6-9 (Oller).
ConocoPhillips then emphasized that "all of the employees who [it] identified as culpable were fired, except for Mr. Price, who was the lowest level employee on the list." Tr. at 56:4-6 (Oller). ConocoPhillips continued that Patterson chose not to terminate Price, because both Quiroz and Brooks ordered Price to violate ConocoPhillips' policies. See Tr. at 56:6-11 (Oller). ConocoPhillips concluded that "[t]he evidence in the record just does not support that this investigation was biased towards ... Hispanic employees." Tr. at 57:23-25 (Oller). At the hearing's conclusion, the Court gave its inclination that Quiroz had shown a prima facie case of Title VII race discrimination, but had not sufficiently rebutted ConocoPhillips' proffered legitimate non-discriminatory reasons for Quiroz' termination. See Tr. at 59:4-9 (Court).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the initial burden of 'show[ing] that there is an absence of evidence to support the nonmoving party's case.' " Herrera v. Santa Fe Pub. Sch.,
*1304The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc.,
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc.,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc.,
There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris,
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [574,] 586-87 [106 S.Ct. 1348 ,89 L.Ed.2d 538 (1986) ]... (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 [106 S.Ct. 2505 ].... When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
Scott v. Harris,
The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County,
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, "[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts." York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir. 2008) (quoting Scott,550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir. 2008).
*1306Thomson v. Salt Lake Cty.,
In evaluating a motion for summary judgment based on qualified immunity, we take the facts "in the light most favorable to the party asserting the injury." Scott v. Harris,550 U.S. 372 , 377,127 S.Ct. 1769 ,167 L.Ed.2d 686 (2007). "[T]his usually means adopting ... the plaintiff's version of the facts," ibr.US_Case_Law.Schema.Case_Body:v1">id. at 378 ,127 S.Ct. 1769 , unless that version "is so utterly discredited by the record that no reasonable jury could have believed him,"id. at 380 ,127 S.Ct. 1769 . In Scott, the plaintiff's testimony was discredited by a videotape that completely contradicted his version of the events.550 U.S. at 379 ,127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads' testimony. There is only other witnesses' testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads' alcoholism and memory problems go to the weight of his testimony, not its admissibility.... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor,490 U.S. 386 , 395-96,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989), and this court's precedent.
Rhoads v. Miller,
LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES
"Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin." Brown v. Gen. Servs. Admin.,
1. Disparate Treatment Discrimination.
"To prevail on a disparate treatment claim under Title VII of the Civil Rights Act, a plaintiff must show that [the] employer intentionally discriminated against [the plaintiff] for a reason prohibited by the statute." Jaramillo v. Colo. Judicial Dep't,
The elements that the Supreme Court established in McDonnell Douglas Corp. v. Green address only a refusal to rehire. Accordingly, the articulation of a plaintiff's prima facie case "varies depending on the type of adverse action the employee alleges was discriminatory." EEOC v. PVNF, LLC,
2. Title VII Retaliation.
To establish a prima facie case of retaliation, a plaintiff must show: "(1) that he [or she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Proctor v. United Parcel Serv.,
3. Materially Adverse Employment Action.
The Tenth Circuit liberally defines what constitutes an adverse employment action. See Orr v. City of Albuquerque,
Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.
Sanchez v. Denver Pub. Sch.,
*1310Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ.,
In Anderson v. Clovis Municipal Schools,
LAW REGARDING SUPPLEMENTAL JURISDICTION
The federal courts are "courts of limited jurisdiction." Exxon Mobil Corp. v. Allapattah Servs., Inc.,
1. Congressional Authority to Exercise Supplemental Jurisdiction.
Although a statutory basis is necessary for federal courts to exercise jurisdiction over a controversy, "it is well established-in certain classes of cases-that, once a court has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy." Exxon Mobil Corp. v. Allapattah Servs., Inc.,
In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the United States, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV 09-0540,
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve *1312the joinder or intervention of additional parties.
2. The District Courts' Discretion to Exercise Supplemental Jurisdiction.
The Tenth Circuit has followed the Supreme Court's lead in classifying supplemental jurisdiction not as a litigant's right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp.,
Similarly, the supplemental jurisdiction statute enumerates four factors that the court should consider:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
The Tenth Circuit has held that district courts should presume to decline jurisdiction over state claims when federal claims no longer remain: "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City,
[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers of Amer. v. Gibbs,
The Court has previously stated that a district court should usually decline to exercise supplemental jurisdiction when
ANALYSIS
The Court concludes that a genuine dispute of material fact exists regarding Quiroz' Title VII and NMHRA racial discrimination claims. The Court will therefore not grant summary judgment on those claims. The Court further concludes, however, that Quiroz' wrongful termination-retaliatory discharge claim fails, because Quiroz did not perform an act that public policy authorizes or encourages, and, thus, the Court will grant summary judgment on that claim.
I. A GENUINE DISPUTE OF MATERIAL FACT EXISTS REGARDING QUIROZ' DUTY TO REPORT AS A SUPERVISOR.
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
*1314If that is the case, "summary judgment will not lie." Anderson v. Liberty Lobby,
Here, the parties genuinely dispute the extent of Quiroz' duty to report the various HSE incidents in relation to Price's. According to ConocoPhillips, "Quiroz had a higher duty to report what occurred in the plant than Price did." MSJ ¶ 55, at 12 (citing Code of Conduct at 10; Patterson Depo. at 67:2-68:19). The cited pages of the Patterson Deposition read, in key part:
Q: And are you saying that under ConocoPhillips' policies, Quiroz had more of a duty to report what occurred in that plant than Price did?
A: Yes
....
A: Rudy Quiroz was a second-level supervisor. He would be held to be-our expectations would be higher for him ... than it would be for a first-level supervisor or a plant operator.
Patterson Depo. at 67:2-5; id. at 68:5-9.
Quiroz, however, "dispute[s] he had a higher duty to report than any other supervisor including Price." Response ¶ 55, at 14 (alteration added)(citing Code of Conduct at 10). The cited Code of Conduct page contains a heading stating "Leading Responsibly: Further Expectations for Supervisors," Code of Conduct at 10 (emphasis added), and then states: "Regardless of your position or level at ConocoPhillips, you should lead by example, demonstrate integrity and promote compliance with our Code.... If you are a supervisor, you must ... promptly report through appropriate channels all information received concerning any potential violation of company policy, regulations or the law," Code of Conduct at 10 (emphasis added). In short, Patterson, the Vice President of ConocoPhillips' Mid Continent Business Unit, testified that ConocoPhillips' policy is that Quiroz had a higher duty to report a problem than Price, because Quiroz was a higher level supervisor than Price, Patterson Depo. at 67:2-5; id. at 68:5-9, but Quiroz points to ConocoPhillips' Code of Conduct, which suggests that all supervisors, regardless of their level, have the same reporting obligations, see Code of Conduct at 10. This factual dispute is genuine, because "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby,
This factual dispute is also material. The Supreme Court has explained: "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby,
In a Title VII racial discrimination claim, "[t]o establish a prima-facie case of discrimination, a plaintiff must demonstrate that: (i) she is a member of a protected class; [and] (ii) she suffered an adverse-employment action." Gerald v. Locksley,
The factual dispute is also material to the next two steps of the Title VII racial discrimination claim. Once a plaintiff can show the prima facie case, "the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action." Jaramillo v. Colorado Judicial Dept.,
(1) with evidence that defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action taken by the defendant under the circumstances; or (3) with evidence that ... he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.
Salguero v. City of Clovis,
For the same reasons, the Court will not grant summary judgment on Quiroz' claim for racial discrimination in violation of the NMHRA,
II. QUIROZ' WRONGFUL TERMINATION-RETAILIATORY DISCHARGE CLAIM FAILS, BECAUSE QUIROZ DID NOT PERFORM AN ACT THAT PUBLIC POLICY AUTHORIZES OR ENCOURAGES.
The Court concludes that Quiroz' wrongful termination-retaliatory discharge claim fails, because he did not perform an act that public policy authorizes or encourages. For an employee to recover under this tort, " 'he must demonstrate that he was discharged because he performed an act that public policy has authorized or would encourage, or because he refused to do something required of him by his employer that public policy would condemn.' " Shovelin v. Central New Mexico Elec. Co-op., Inc.,
Quiroz argues that his act of reporting the five HSE incidents is an act that public policy would encourage, and he was terminated as a result of these disclosures. See Response at 41. That statement is not the whole story. The investigation concludes that Quiroz "knew or should have known that failing to properly report the incidents" violated ConocoPhillips' policy, and that his actions jeopardized employees' health and safety. MSJ ¶ 48, at 11 (asserting this fact)(citing Investigation Report at 7-10; Investigation Report Part 2 at 1-10). Patterson terminated, or recommended terminating, Quiroz, because Quiroz "failed to report incidents, covered up incidents, gave direction to destroy evidence and directed other employees to not report incidents." MSJ ¶ 49, at 11 (citing Patterson Depo. at 46:7-47:8). See Response ¶ 49, at 13 (not disputing this fact). Quiroz even told Price not to report the second incident-the plant compressor fire. See MSJ ¶ 34, at 9 (asserting this fact)(citing Quiroz Depo. at 117:16-118:7; Bostic Memo at 2-5); Response ¶ 34, at 9 (admitting this fact). It was only after Quiroz repeatedly violated company policy, and after Dobbs reported the Philmex Battery Fire, that Quiroz decided to report all of the HSE incidents to Patterson. See MSJ ¶ 19, at 6 (asserting this fact)(citing *1318Quiroz Depo. at 97:5-100:9; id. at 105:14-106:6; id. at 110:1-10; Patterson Depo. at 21:11-15); Response ¶ 19, at 5 (admitting this fact). The Court cannot soundly conclude that failing to report fires, violating company policy, endangering employees, covering up incidents, giving direction to destroy evidence, and only reporting the known problems after doing all of these things, is "an act that public policy has authorized or would encourage." Shovelin v. Central New Mexico Elec. Co-op., Inc.,
IT IS ORDERED that the Defendant ConocoPhillips Company's Motion for Summary Judgment, filed November 16, 2015 (Doc. 36), is granted in part and denied in part. The Court grants summary judgment on Plaintiff Rudy Quiroz' wrongful termination-retaliatory discharge, national origin discrimination, and retaliation claims. The Court denies summary judgment on Quiroz' claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, and the New Mexico Human Rights Act,
Footnotes
310 F. Supp. 3d 1271 (Quiroz v. ConocoPhillips Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.