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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 DEVONNA REYES,

 3          Plaintiff-Appellant,

 4 v.                                                     No. 33,147

 5 FARMERS INSURANCE EXCHANGE,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 8 Sheri A. Raphaelson, District Judge

 9   O’Friel & Levy, P.C.
10   Daniel J. O’Friel
11   Pierre Levy
12   Aimee Bevan
13   Santa Fe, NM

14 Berardinelli Law Firm
15 David J. Berardinelli
16 Santa Fe, NM

17 for Appellant

18   Lewis Roca Rothgerber LLP
19   Steven J. Hulsman
20   Erin E. Langenwalter
21   Matthew W. Park
22   Ross L. Crown
23   Albuquerque, NM

24 for Appellee
 1                              MEMORANDUM OPINION

 2 FRY, Judge.

 3   {1}   Plaintiff Devonna Reyes appeals the district court’s grant of summary judgment

 4 in favor of Defendant Farmers Insurance Exchange (Farmers) on her claim of

 5 constructive retaliatory discharge. The district court concluded that Plaintiff failed to

 6 make a prima facie showing that she was constructively discharged and retaliated

 7 against for complaining about Farmers’ alleged “illegal” claim settling policies. We

 8 agree with the district court that Plaintiff failed to produce evidence that she was

 9 retaliated against for complaining about or refusing to comply with claim settling

10 policies she later claimed were illegal and against public policy. Accordingly, we

11 affirm.

12 BACKGROUND

13   {2}   Farmers presented the following evidence in support of its motion for summary

14 judgment. Plaintiff began working for Farmers as a claims adjuster in January 2008.

15 Her duties included investigating claims, confirming coverage, evaluating liability and

16 damages, and negotiating settlements. During Plaintiff’s employment, Farmers had

17 a claims settling process entitled “Early Contact Settlements” (ECS) which, according

18 to Plaintiff, required claims adjusters to settle a large percentage of claims within sixty

19 days of the claim being made. Plaintiff contends the ECS program violated public



                                                2
 1 policy and that it was her complaints about and refusal to comply with the program

 2 that resulted in Farmers’ retaliatory behavior toward her.

 3   {3}   Plaintiff complained about various workplace issues throughout her tenure with

 4 Farmers. In June 2008, Plaintiff filed a letter of complaint with her supervisors

 5 regarding “unreasonable” goals and expectations being placed on her, specifically in

 6 regard to her work load, which often caused her to work additional hours. Plaintiff

 7 stated in the letter that she was not “receiving comparable compensation for what [she

 8 was] putting into the company.” Plaintiff based this expectation on her belief that her

 9 “settlement numbers have surpassed [her] fellow new hires.”

10   {4}   In August 2009, Plaintiff filed a complaint with Farmers’ human resources

11 department to document “odd run-in[s]” with management. These incidents included

12 Plaintiff being accused of attempting to stage a walk-out of claims adjusters, being

13 sent home for an alleged dress code violation, and reprimands from her supervisors

14 regarding “immaturity issues.” Plaintiff believed all of these allegations were

15 unfounded, and she was concerned that her supervisors were not appreciating that she

16 had consistently achieved or far exceeded Farmers’ goals.

17   {5}   In February 2010, Farmers reprimanded Plaintiff for engaging in improper

18 communications with a first party claimant. We refer to this incident as the first party

19 settlement email. Plaintiff had sent an email to a claimant stating, “I do have an offer



                                              3
 1 ready for you—however—despite both our efforts, my supervisor, Aimee Valenzuela,

 2 would not approve any wage loss [damages].” Plaintiff received a verbal reprimand

 3 from her supervisor due to this incident. The memo detailing that conversation stated

 4 that (1) Plaintiff’s email to the claimant did not reflect the correct company entity, (2)

 5 the email violated Farmers’ policy that all initial offers should be communicated

 6 verbally, followed up in writing, and copied to the claims file, and (3) offers to

 7 claimants should not indicate that the claims adjuster is in disagreement with the offer.

 8 Plaintiff also received a “formal warning for performance” which reiterated these

 9 issues and the steps that needed to be taken in the future to ensure that these issues did

10 not arise again. The formal warning concluded by stating that it was a “last chance

11 agreement” and that “[a]ny further incidents of failure to follow the liability strategy

12 with regard to correct company identified or appropriate written offers . . . will result

13 in immediate termination of employment.”

14   {6}   The same day Plaintiff received the “last chance agreement,” she again

15 contacted Farmers’ human resources department. In her email, Plaintiff recounted

16 numerous instances which she believed spoke “volumes to the gender based

17 discrimination and retaliation against [her]” following her August 2009 complaint to

18 human resources. Specifically, Plaintiff complained that her supervisor had “gone out

19 of her way to make [her] job as difficult as possible.” In Plaintiff’s estimation, this



                                               4
 1 included unfair scrutiny of her work, increased responsibilities, failure to return her

 2 calls and emails, and criticism of her decisions. Plaintiff also complained, among

 3 other things, that her vacation requests were denied and that her work-from-home

 4 privileges had been revoked. Plaintiff did not raise any allegations reflecting concerns

 5 about Farmers’ claims settling practices.

 6   {7}   Later that month Plaintiff took a Federal Medical Leave Act leave of absence

 7 due to health conditions, including depression and anxiety. After nearly five weeks,

 8 Farmers contacted Plaintiff after her doctor released her to return to work. Farmers

 9 requested that Plaintiff provide it with information to determine what accommodations

10 were needed for Plaintiff under the Americans with Disabilities Act. Plaintiff did not

11 respond to this request. Instead, nearly one month later, Plaintiff tendered her

12 resignation. Plaintiff stated that “working conditions at Farmers are intolerable.”

13 Among other complaints, Plaintiff for the first time stated that “I have forced myself

14 to pursue company goals (especially increasing ECS goals) that have compromised

15 my beliefs, morals, ethics, and health.”

16   {8}   Shortly thereafter, Plaintiff filed suit against Farmers. The district court granted

17 summary judgment in favor of Defendant on Plaintiff’s retaliatory discharge claim.

18 Plaintiff appeals.




                                                5
 1 DISCUSSION

 2   {9}    Plaintiff argues that she produced evidence that created an issue of material fact

 3 on the question of whether she was constructively terminated in retaliation for

 4 complaints regarding Farmers’ claims settling policies. Constructive discharge is not

 5 a claim in itself; rather, it is a prerequisite showing that must be made to establish

 6 retaliatory discharge where the claimant has resigned. Gormley v. Coca-Cola Enters.,

 7 2005-NMSC-003, ¶ 9, 137 N.M. 192, 109 P.3d 280 (“Constructive discharge is not

 8 an independent cause of action. . . . Instead [it] is a doctrine that permits an employee

 9 to recast a resignation as a de facto firing[.]”). However, because we conclude below

10 that Plaintiff produced no evidence that she complained about Farmers’ settlement

11 policies prior to her resignation, we need not consider whether Plaintiff’s resignation

12 constituted a constructive discharge.

13 Standard of Review

14   {10}   We review summary judgment de novo. Self v. United Parcel Serv., Inc.,

15 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary judgment is

16 appropriate where there are no genuine issues of material fact and the movant is

17 entitled to judgment as a matter of law.” Id.; see Rule 1-056(C) NMRA. The

18 appellate courts “view the facts in a light most favorable to the party opposing

19 summary judgment and draw all reasonable inferences in support of a trial on the



                                                6
 1 merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d

 2 280 (internal quotation marks and citation omitted). The party moving for summary

 3 judgment must make a prima facie showing and come forward with “such evidence

 4 as is sufficient in law to raise a presumption of fact or establish the fact in question

 5 unless rebutted.” Rivera v. Brazos Lodge Corp., 1991-NMSC-030, ¶ 5, 111 N.M. 670,

 6 808 P.2d 955. “Once this prima facie showing has been made, the burden shifts to the

 7 non-movant to demonstrate the existence of specific evidentiary facts which would

 8 require trial on the merits.” Romero, 2010-NMSC-035, ¶ 10 (internal quotation marks

 9 and citation omitted).

10 Retaliatory Discharge

11   {11}   A claim of retaliatory discharge “allows a discharged at-will employee to

12 recover in tort when his [or her] discharge contravenes a clear mandate of public

13 policy.” Chavez v. Manville Prods. Corp., 1989-NMSC-050, ¶ 16, 108 N.M. 643, 777

14 P.2d 371. To establish a retaliatory discharge claim, the employee must demonstrate

15 that “he [or she] was discharged because he [or she] performed an act that public

16 policy has authorized or would encourage, or because he [or she] refused to do

17 something required of him [or her] by his [ or her] employer that public policy would

18 condemn.” Id. (internal quotation marks and citation omitted). “The employee must

19 also how a causal connection between his [or her] actions and the retaliatory discharge



                                              7
 1 by the employer.” Shovelin v. Cent. N.M. Elec. Co-op, Inc., 1993-NMSC-015, ¶ 24,

 2 115 N.M. 293, 850 P.2d 996. Therefore, because Plaintiff contends that the ECS

 3 program violates public policy, to avoid summary judgment Plaintiff must

 4 demonstrate that there is a question of fact whether the incidents she contends led to

 5 her constructive discharge were caused by her complaints about or refusal to comply

 6 with the allegedly illegal claims settling policy.

 7   {12}   We understand Plaintiff’s argument to be that her June 2008 complaint

 8 constituted a complaint about the illegality of the ECS program, that following that

 9 complaint, she was subjected to intolerable working conditions as outlined above, and

10 that the reasons given for her discipline in the “last chance memo” were pretextual

11 because she was truly being disciplined for objecting to, or refusing to comply with,

12 the illegality of the ECS program.1 Plaintiff’s brief provides an extensive review of

13 why Farmers’ ECS program violates New Mexico law and public policy. Because we

14 conclude that Plaintiff produced no evidence establishing that she complained about

15 the ECS program prior to her resignation, we need not determine whether the ECS

            1
16           Plaintiff claims in her reply brief that it was not just the ECS program but
17   Farmers’ liability strategies as a whole that form the basis of her claim. However, this
18   argument is belied by the fact that Plaintiff’s argument and evidence regarding the
19   alleged illegality of Farmers’ claim settling policies only highlight the ECS program.
20   Regardless, even if we were to assume that Farmers’ liability strategies as a whole
21   violated public policy, it would not change our holding in this case because Plaintiff
22   did not produce evidence that she complained about the illegality of Farmers’ liability
23   strategies prior to the alleged incidents of harassment.

                                                8
 1 program was contrary to public policy. We will assume solely for the purpose of our

 2 analysis that the ECS program violated public policy.

 3   {13}   We conclude that Plaintiff failed to present evidence supporting her claim of

 4 retaliatory action by Farmers. First, we are unpersuaded that Plaintiff’s June 2008

 5 complaint constituted a complaint about the ECS program. Plaintiff admits that she

 6 did not mention the ECS program in her June 2008 complaint, but she stated during

 7 her deposition that it was “implied” that she complained about the program. Our

 8 review of the June 2008 complaint reveals nothing suggesting that Plaintiff

 9 complained about the illegality of the ECS program. Instead, Plaintiff complained

10 that Farmers’ expectations were too high and that she was not being compensated to

11 the degree she felt she deserved. In fact, in support of her complaint, Plaintiff

12 emphasized that her settlement numbers exceeded those of many of her colleagues.

13 Furthermore, Plaintiff admitted in her deposition that her complaint regarding

14 Farmers’ goals and expectations, even assuming it was directed toward the ECS

15 program, was not about the illegality of the ECS program, but about the increased

16 workload the settlement policy necessitated.

17   {14}   In concluding that Plaintiff did not complain about the ECS program in her June

18 2008 complaint, we are also unpersuaded that the alleged workplace harassment

19 Plaintiff experienced over the next two years was a result of her alleged objections to



                                               9
 1 the ECS program. That is not to say that these incidents do not reveal a strained

 2 relationship between Plaintiff and her supervisors. However, these incidents cannot

 3 be evidence of retaliation by Farmers for Plaintiff’s objections to the ECS program if

 4 Plaintiff never objected to the ECS program prior to the incidents.

 5   {15}   For this same reason, we are unconvinced that the discipline Plaintiff received

 6 for the first party settlement email was a pretextual reason for Farmers to retaliate

 7 against Plaintiff for her refusal to comply with the ECS program. Plaintiff produced

 8 no evidence that she had complained of the ECS program prior to the first party

 9 settlement email that would have given Farmers the motivation to retaliate against her.

10 Instead, as indicated in the two memos regarding the incident, Plaintiff was

11 disciplined for, among other things, telling the claimant that she disagreed with the

12 offer of settlement. Plaintiff has not provided evidence as to why this discipline

13 would be contrary to law or public policy.

14   {16}   In sum, while Plaintiff lodged many complaints during her time with Farmers,

15 including complaints about her salary, workload, and her supervisor, she produced no

16 evidence that she complained about the illegality of Farmers ECS program or

17 indicated a refusal to comply with the policies before her resignation. Because it was

18 Plaintiff’s alleged refusal to comply with a claims settling process she believed to be

19 against public policy that formed the basis of her claim that she was retaliated against,



                                              10
1 this absence of evidence is fatal to her claim. Accordingly, we affirm the district

2 court.

3 CONCLUSION

4   {17}   For the foregoing reasons, we affirm the district court.

5   {18}   IT IS SO ORDERED.



6
7                                           CYNTHIA A. FRY, Judge

8 WE CONCUR:



 9
10 MICHAEL D. BUSTAMANTE, Judge


11
12 M. MONICA ZAMORA, Judge




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