(specially concurring).
{40} Although I concur in the result the Majority Opinion reaches, I believe the facts merit a somewhat different analysis. I do agree that there is sufficient evidence of a causal connection between the protected activity of filing a complaint and an adverse employment action to preclude summary judgment. I also agree that the trial court erred in denying Plaintiffs request for a jury trial. I am not persuaded that Plaintiff is entitled to rely on his actions prior to filing a complaint with the Equal Employment Opportunity Commission as evidence of protected activity nor that his employer should be viewed as having waived the right to challenge Plaintiffs reliance on those actions. My reasons for believing that Plaintiff is not entitled to rely on his actions prior to filing the complaint are as follows.
{41} Intel did not wave its protected activity arguments. Intel initially argued in its motion for summary judgment that there was no evidence showing a causal connection between the EEOC claim and Plaintiffs terinitiation or any other adverse employment action. With this motion, I believe Intel conceded only that filing a complaint with the EEOC was protected activity. In response, Plaintiff argued that Intel retaliated, not only because he filed an EEOC complaint, but also because he denied involvement in harassment. In its reply, Intel clearly stated that the only issue before the court was whether Plaintiff was terminated “as a result of a discrimination charge he filed with the EEOC.” Intel specifically argued that “Plaintiffs request for an open door investigation on August 7, 2001 was not ‘protected activity.’ ” Intel also argued that even if Plaintiff had been terminated for refusing to admit he was involved in sexual harassment, this was “not impermissible retaliation in violation of the NMHRA and therefore not subject to the Court’s review.”
{42} I am not persuaded that Plaintiffs actions prior to filing the complaint with the EEOC were protected activity under the New Mexico Human Rights Act. The NMHRA prohibits discrimination in employment on specific grounds including race, age, religion, sex, physical or mental handicap, sexual orientation or gender identity. NMSA 1978, § 28-l-7(A) (2004). The Act also prohibits discrimination against any person who has “opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act.” § 28-1-7(1). Thus, the Act prohibits only certain types of discrimination; it does not prohibit all unfair or unreasonable employment actions. Cf. Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 8 (1st Cir.2000) (holding that proof that termination was “unfair” is not sufficient to state a claim under Title VII; courts do not assess the merits or even rationality of employers’ nondiscriminatory business decisions); Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 564 (7th Cir.1998) (“Title VII prohibits discriminatory employment actions, not hasty or ill-considered ones.”).
{43} There is no indication in the record that Plaintiff was protesting discriminatory treatment. He simply asserted that he had not had any inappropriate conversations, and any discipline would therefore be unfair. Similarly, Plaintiffs internal complaint regarding the sexual harassment investigation alleges that the investigators “prejudged” his case, and reached their conclusions without adequate evidence. Plaintiff did not assert that the investigators were biased because of his membership in a protected class. He simply claims that the investigation was unfair. The NMHRA ought not be construed to protect such a general claim.
{44} By including such a general claim within the scope of protected activity, we seem to me to create a troublesome and unnecessary difficulty for employers dealing with sexual harassment complaints. If an employer fails to take corrective action, that employer may be held responsible for a hostile work environment. If an employee suspected of involvement in sexual harassment is unhappy with the corrective action taken, that employee may perceive the employer to be retaliating for what the employee considers just criticism. I believe we ought not construe the NMHRA to protect resistance to a non-discriminatory investigation of a sexual harassment claim.
{45} However, even if Plaintiffs only protected activity was filing a complaint with the EEOC, Plaintiff appears to have met his prima facie burden by presenting some evidence suggesting that his EEOC complaint caused Intel’s adverse employment action. Plaintiff offered evidence that he started receiving poor reviews and feedback after filing his complaint. He also provided direct evidence that his supervisors were aware of his complaint and were upset that it had been filed. A plaintiff can provide direct evidence of discrimination if he or she can demonstrate that there is a nexus between discriminatory comments, and the disputed employment decision. Stover v. Martinez, 382 F.3d 1064, 1077-78 (10th Cir.2004). The record shows that the same supervisor commented on the complaint, complained about having to “babysit” Plaintiff, and made the ultimate decision that resulted in Plaintiffs termination. She initiated disciplinary action shortly after the complaint was filed. Plaintiff has shown a nexus between the retaliatory comments and the adverse employment action.
{46} Intel has offered a legitimate, nondiscriminatory reason for Plaintiffs termination, showing that Plaintiff had a record of poor cooperation and communication skills, and had failed to complete many of the tasks he was assigned in a timely manner. The showing was not sufficient to support summary judgment as a matter of law because Plaintiff has presented sufficient evidence to allow a reasonable factfinder to conclude that concerns about Plaintiffs performance were a pretext for retaliation. While far from overwhelming, the evidence supporting Plaintiffs prima facie case would also allow a jury to conclude that Intel did not actually believe that Plaintiffs performance had deteriorated. For example, the evidence that Plaintiffs supervisor was aware of the complaint, considered it “disgusting,” changed Plaintiffs review process, and initiated disciplinary proceedings shortly after learning of the complaint, could support the jury’s conclusion that the complaint was the true motivation for disciplinary action. See Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323-24 (8th Cir.1994). Because I conclude that Plaintiff has made a sufficient showing to survive summary judgment, I concur in the result reached by the majority.
I CONCUR: PETRA JIMENEZ MAES, Justice.