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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39553
VINCENT P. CHAPA, RAY CASALDUC,
and GORDON A. FOSTER,
Plaintiffs-Appellants,
v.
BOARD OF COUNTY COMMISSIONERS
OF BERNALILLO COUNTY, RUDY MORA,
and MANUEL GONZALES III,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Francis J. Mathew, District Court Judge
Youtz & Valdez, P.C.
Shane C. Youtz
Stephen Curtice
James A Montalbano
Albuquerque, NM
for Appellants
Kennedy, Moulton & Wells, P.C.
Deborah D. Wells
Albuquerque, NM
for Appellees
MEMORANDUM OPINION
WRAY, Judge.
{1} Defendants Board of Commissioners of Bernalillo County, Rudy Mora, and
Manuel Gonzales III (collectively, Defendants) rehired as school resource officers
Plaintiffs Vincent Chapa, Ray Casalduc, and Gordon Foster (collectively, Plaintiffs), who
were retired law enforcement officers. These rehires were based on agreements
between Defendants and the Bernalillo County Deputy Sheriff’s Association (the
Association).1 The Association later withdrew its agreement to the rehire arrangement,
and Defendants reassigned Plaintiffs to different, lower-paying positions. Plaintiffs
brought discrimination and retaliation claims against Defendants under the New Mexico
Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through
2023), and the New Mexico Whistleblower Protection Act (NMWPA), NMSA 1978,
§§ 10-16C-1 to -6 (2010). The district court granted summary judgment in Defendants’
favor, Plaintiffs appeal, and we affirm.
{2} Because this is a memorandum opinion and the parties are familiar with the
background of this case, we discuss pertinent facts and procedural history as needed
within our analysis.
DISCUSSION
{3} “Summary judgment under Rule 1-056 NMRA . . . is proper if there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of
law.” Cates v. Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002, ¶ 9, 124 N.M.
633, 954 P.2d 65 (internal quotation marks and citation omitted). Plaintiffs argue that
Defendants (1) discriminated based on age and engaged in retaliation contrary to the
NMHRA; and (2) violated the NMWPA.2 We begin with Plaintiffs’ NMHRA arguments.
I. The District Court Properly Dismissed the NMHRA Claims
{4} The NMHRA prohibits employment discrimination on the basis of age, Section
28-1-7(A), and retaliation against an employee who has opposed any unlawful
discriminatory practice, Section 28-1-7(I)(2). Our Supreme Court has recognized that
the “evidentiary methodology developed in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 . . . (1973), [could] provide guidance in interpreting the [NMHRA].”
Cates, 1998-NMSC-002, ¶ 15; see Smith v. FDC Corp., 1990-NMSC-020, ¶¶ 8-10, 109
N.M. 514, 787 P.2d 433. Our purpose when applying the McDonnell Douglas test “is to
allow discriminated-against plaintiffs, in the absence of direct proof of discrimination, to
demonstrate an employer’s discriminatory motives.” See Smith, 1990-NMSC-020, ¶ 11.
If, however, “direct evidence” of intentional discrimination exists, “the entire McDonnell
Douglas framework may be bypassed.” Id. Plaintiffs argue that the agreements between
Defendants and the Association are direct evidence of intentional age discrimination and
in the alternative, that other evidence, under the McDonnell Douglas framework,
established Defendants’ discriminatory motive. Plaintiffs additionally assert that they
also sufficiently established a retaliation claim under the McDonnell Douglas framework.
1According to the undisputed facts on summary judgment, the Association “is the exclusive bargaining
representative for collective bargaining of all employees in the appropriate bargaining unit as determined
by the Bernalillo County Labor Relations Board.”
2Because we affirm the district court’s grant of summary judgment on other grounds, we need not
address the parties’ arguments about the exhaustion of administrative remedies.
We first consider Plaintiffs’ argument regarding direct evidence of discrimination and
then turn to the McDonnell Douglas framework.
A. The Agreements Do Not Provide Direct Evidence of Discriminatory Motive
for the Age Discrimination Claim
{5} Plaintiffs contend that direct evidence of discriminatory intent lies in the
agreements between Defendants and the Association. We therefore begin our whole
record review with the text and circumstances of the agreements. Cates, 1998-NMSC-
002, ¶ 9 (“On appeal, a reviewing court will consider the whole record for evidence that
places a material fact at issue.”).
{6} The 2006-2009 collective bargaining agreement between Defendants and the
Association only permits Defendants to rehire a terminated employee if that employee
was terminated while in good standing and if the rehire was within ninety days of the
last day of service with Defendants. In 2008, the Bernalillo County Sheriff’s Department
(the Department) and the Association entered a statement of understanding (SOU),
which permitted the Department to rehire retired employees who had been separated
from the Department for more than ninety days, provided that, among other restrictions,
the rehired retired employees were (1) rehired as temporary employees, (2) subject to
dismissal at any time and for any reason, (3) not eligible for Association membership or
representation, and (4) not eligible for promotions above a certain rank. Subsequently,
Defendants and the Association agreed in a memorandum of understanding (MOU) that
retired rehired deputies could work as school resource officers for the 2009-2010 school
year—and in future years, unless the Association provided the Department with written
notice that the Association no longer consented “to the future application” of the MOU. If
the Association provided the notice to the Department, “those positions filled by [retired]
employees hired as [school resource officers] shall be vacated.” In March 2018, the
Association provided written notice that it withdrew its consent to the future application
of the MOU and that school resource officer positions would be filled with Association
deputies as of June 1, 2018.
{7} Plaintiffs maintain that the SOU and the MOU discriminated on the basis of age
because according to Plaintiffs, “younger officers with the same job title” are subject to
less onerous conditions of employment under those agreements than “Retired Deputy
Rehires.” We disagree. On their face, the SOU and MOU relate solely to retired deputy
rehires, with no reference to age. Direct evidence is “explicit and requires
no inferences to establish the proposition or conclusion being asserted.” Romero v.
Phillip Morris Inc., 2010-NMSC-035, ¶ 13, 148 N.M. 713, 242 P.3d 280 (internal
quotation marks and citation omitted). Without inference, the agreements do not
explicitly show discrimination that is based on age. Plaintiffs point to provisions in the
agreements that they argue are unfavorable for retired rehired school resource officers.
But Plaintiffs do not explicitly demonstrate that the agreements treat retired rehired
school resource officers differently than nonretired school resource officers based on
age. The agreements therefore do not provide the “direct evidence of discrimination”
that Plaintiffs assert. As a result, we examine Plaintiffs’ claims for age discrimination
and retaliation under the McDonnell Douglas framework.
B. The District Court Applied the McDonnell Douglas Framework
Appropriately
{8} When asserting NMHRA claims of discrimination or retaliation under the
McDonnell Douglas framework, the employee bears the initial burden of demonstrating
a prima facie case, after which the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for the adverse employment action. Juneau v. Intel Corp.,
2006-NMSC-002, ¶ 9, 139 N.M. 12, 127 P.3d 548. Should the employer show a
legitimate business reason for the adverse employment action, the employee then has
the burden to establish that the employer’s proffered justifications are merely pretext or
inadequate. Id. Applying this analysis, we conclude that (1) Plaintiffs established a
prima facie case for age discrimination but did not rebut Defendants’ proffered
legitimate business reason; and (2) Plaintiffs did not establish a prima facie case for
retaliation.
{9} We observe that Plaintiffs also attempted to show that the retired rehired policies
had a disparate impact on persons in a protected class—those over forty. See Gonzales
v. N.M. Dep’t of Health, 2000-NMSC-029, ¶ 30, 129 N.M. 586, 11 P.3d 550 (explaining
that in some cases, rather than showing discriminatory intent, a plaintiff may
demonstrate that “an apparently neutral employment policy has a discriminatory effect”).
As evidence of disparate impact, Plaintiffs offered their own ages—all over fifty—
compared to the ages of their replacements—in their thirties and forties. But this
evidence, without any information about the entire group impacted by the retired rehired
policies, does not satisfy the requirement that Plaintiffs “offer statistical evidence of a
kind and degree sufficient to show that the practice in question has caused the
exclusion of applicants for jobs or promotions because of their membership in a
protected group.” Id. (internal quotation marks and citation omitted). We therefore
decline to further consider disparate impact and proceed with the McDonnell Douglas
framework.
{10} Assuming, as the district court appears to have done, that Plaintiffs established a
prima facie case for age discrimination, the burden shifted to Defendants to establish a
legitimate business reason for the decision. See Juneau, 2006-NMSC-002, ¶ 9
(describing the shifting burdens under the McDonnell Douglas test). To rebut the
presumption of discrimination, Defendants rely on the district court’s articulation of the
legitimate business reason to transfer Plaintiffs: that the Association withdrew the MOU,
and Defendants would have been subject to legal action if they had not transferred
Plaintiffs out of the school resource officer positions. To refute Defendant’s assertion,
Plaintiffs contend that the SOU and MOU are illegal and therefore cannot be a
“legitimate business reason.” Plaintiffs explain that the SOU and MOU
required the County, initially, to hire retired employees (almost by
definition older employees) at less advantageous terms and conditions of
employment as their younger co-workers. Then, when the [Association]
revoked the MOU, Defendants terminated Plaintiffs’ positions (but not the
positions of their younger co-workers in the same precise classification)
because of their status as retired rehires.
Plaintiffs point us to complaints they made about different treatment but not to evidence
that demonstrates what the different treatment was. Plaintiffs do not explain why the
agreements are “illegal” or why the distinction between employees that have elected to
retire and those who have not is indicative of discrimination based on age rather than
employment status. Plaintiffs’ burden was to produce specific evidentiary facts to
demonstrate a discriminatory reason for transferring Plaintiffs out of the school resource
officer positions. See Cates 1998-NMSC-002, ¶ 24. Because Plaintiffs did not do so, the
district court properly granted summary judgment for Defendants for age discrimination
under the NMHRA. See id. ¶ 26.
{11} Plaintiffs next argue that they established a prima facie case for retaliation under
the NMHRA, which includes showing a causal connection between an adverse
employment action and a protected activity. See § 28-1-7(I)(2); Juneau, 2006-NMSC-
002, ¶¶ 11-12 (setting forth the test to establish a prima facie case for retaliation).
Specifically, Plaintiffs construct the retaliation claim as follows: after their “decades-long
struggle against [Defendants’] unlawful age discrimination,” Plaintiffs attempted to join a
labor organization other than the Association, and as a result of the attempted union
membership, Defendants demoted or transferred them. We are unpersuaded. The
NMHRA prohibits retaliation against people who “opposed any unlawful discriminatory
practice” or who “filed a complaint, testified or participated in any proceeding under the
[NMHRA].” Section 28-1-7(I)(2). Thus, a “protected activity” under the NMHRA involves
participation in an NMHRA proceeding or opposition to unlawful discriminatory practices
as they are defined by the NMHRA. See Juneau, 2006-NMSC-002, ¶ 11. Plaintiffs cite
no authority to support their position that their attempts to join a different labor
organization are a protected activity under the NMHRA. See Curry v. Great Nw. Ins.
Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support
an argument, we may assume no such authority exists.”); cf. § 28-1-7 (identifying
prohibited acts, including discrimination based on age but not discrimination based on
membership in labor organizations); § 28-1-2(N) (tying acts prohibited by Section 28-1-7
to “unlawful discriminatory practices”). The district court therefore properly granted
summary judgment on the NMHRA retaliation claims.
II. The District Court Properly Granted Summary Judgment on Plaintiffs’
NMWPA Claim
{12} The NMWPA was enacted “to encourage employees to report illegal practices
without fear of reprisal by their employers,” Janet v. Marshall, 2013-NMCA-037, ¶ 21,
296 P.3d 1253 (internal quotation marks and citation omitted), by prohibiting public
employers from taking any “adverse employment action” against employees in
retaliation for “communicat[ing] to the public employer or a third party information about
an action or a failure to act that the public employee believes in good faith constitutes
an unlawful or improper act,” Section 10-16C-3(A); see also § 10-16C-2(D) (defining a
retaliatory action as including an adverse employment action). Plaintiffs contend that if
Defendants “took any ‘adverse employment action’ against Plaintiffs because they
‘communicate[d] to the public employer or a third party’ matters which they reasonably
believed based on the facts available to them violated state or federal law, it violates the
[NM]WPA.”
{13} Similar to their NMHRA retaliation claims, for the NMWPA Plaintiffs assert that
they suffered adverse employment actions resulting from their contact with another
labor organization as well as their internal complaints about discriminatory treatment.
On appeal, however, Plaintiffs point to no evidence to establish that Defendants took an
adverse employment action as a result of Plaintiffs reporting discriminatory treatment to
a supervisor or to another labor organization. The evidence could create an issue of fact
that the Association retaliated when it withdrew its consent to the MOU based on
Plaintiffs’ complaints to another labor organization, and as a result of the Association’s
retaliation, Defendants were required by contract to vacate the retired rehired officers
from the school resource officer positions. But evidence of the Association’s actions falls
short of establishing, without more, that Defendants took an adverse employment action
because Plaintiffs reported age discrimination to either a supervisor or another labor
organization. See § 10-16C-3.
{14} Defendants made a prima facie showing of entitlement to summary judgment by
introducing evidence that Plaintiffs were transferred, not for any alleged whistleblowing
activity, but due to the MOU’s requirements. Consequently, Plaintiffs were required to
demonstrate the existence of specific evidentiary facts that would require trial on the
merits. See Bank of N.Y. Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443.
Plaintiffs did not do so, and as a result, summary judgment was properly granted.
CONCLUSION
{15} We affirm.
{16} IT IS SO ORDERED.
KATHERINE A. WRAY, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
JANE B. YOHALEM, Judge