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

 2 Opinion Number:

 3 Filing Date:    NOVEMBER 16, 2015

 4 NO. 33,310

 5 NATALIE F. GARCIA,

 6        Plaintiff-Appellant,

 7 v.

 8 HATCH VALLEY PUBLIC SCHOOLS,

 9        Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Douglas R. Driggers, District Judge

12 Law Firm of Daniela Labinoti, P.C.
13 Daniela Labinoti
14 El Paso, TX

15 for Appellant

16   German & Associates, LLC
17   Ethan D. Watson
18   Elizabeth L. German
19   Albuquerque, NM

20 for Appellee
 1                                      OPINION

 2 ZAMORA, Judge.

 3   {1}   In this reverse discrimination claim under the New Mexico Human Rights Act

 4 (NMHRA), NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2007),

 5 Plaintiff Natalie Garcia appeals from a summary judgment entered by the district

 6 court against her. We conclude that the district court erred in determining that

 7 Plaintiff’s employer, Hatch Valley Public Schools (HVPS), was entitled to summary

 8 judgment as a matter of law. We also conclude that Plaintiff presented sufficient

 9 evidence below to create genuine issues of material fact. We reverse and remand for

10 further proceedings consistent with this Opinion.

11 BACKGROUND

12   {2}   Plaintiff, who has a Hispanic surname by marriage, but identifies herself as

13 Caucasian and of German descent, was employed as a bus driver for HVPS. In March

14 2010, Plaintiff’s job performance was evaluated. The evaluation form included eleven

15 categories of competence to be evaluated. For each category, competence was to be

16 described as meeting expectations, needing improvement, or unsatisfactory.

17   {3}   Plaintiff’s evaluation, signed by her supervisor on March 17, 2010, indicated

18 that her performance met expectations in five of the eleven categories, and needed

19 improvement in four of the categories. Two categories were marked both as meeting

20 expectations and needing improvement. Plaintiff’s performance was not evaluated as
 1 unsatisfactory in any category. The notes on Plaintiff’s evaluation indicated that she

 2 needed improvement with regard to the upkeep and cleanliness of her bus as well as

 3 her interpersonal relationships. The notes also indicated that Plaintiff was meeting

 4 expectations with regard to her attitude and willingness to assume extra duties,

 5 constructive use of her time, taking initiative, and acceptance of her supervisor’s

 6 recommendations.

 7   {4}   In April 2010, HVPS notified Plaintiff it would not renew her employment

 8 contract, citing an “unsatisfactory evaluation.” Plaintiff exhausted her administrative

 9 remedies with the New Mexico Human Rights Commission (NMHRC) and filed the

10 present action in state court claiming that HVPS had unlawfully discriminated against

11 her. Plaintiff’s initial complaint alleged that HVPS had discriminated against Plaintiff

12 on the basis of her race and national origin, in violation of the NMHRA, and in

13 violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(1) to -(17)

14 (2012) (Title VII). Plaintiff claimed that she had been subjected to discrimination

15 “because of her race and/or national origin being of Caucasian descent” and that she

16 was treated differently from her co-workers because she was not Hispanic. Plaintiff

17 subsequently amended her complaint omitting her Title VII claims.

18   {5}   HVPS moved for a judgment on the pleadings, arguing that Hispanics are by

19 definition, the same race as Caucasians, and Plaintiff therefore, had failed to state a


                                              2
 1 claim as to discrimination based on race. HVPS further argued that Plaintiff failed to

 2 state a claim as to discrimination based on national origin because the complaint did

 3 not specify Plaintiff’s national origin. Plaintiff argued that her complaint, which

 4 alleged discrimination based on her status as a non-Hispanic, sufficiently alleged that

 5 she belonged to a protected class and adequately stated both racial and national

 6 origin related discrimination claims. The district court found that Plaintiff had not set

 7 forth the elements necessary to state a cause of action for discrimination based on

 8 national origin, but did not make any finding as to whether Plaintiff had properly

 9 alleged her claim of racial discrimination. Plaintiff was permitted to amend her

10 complaint to set forth the elements “necessary to go forward with her claims.”

11   {6}   Plaintiff filed a second amended complaint and a subsequent “corrected”

12 second amended complaint, which alleged that HVPS discriminated against her on

13 the basis of her national origin. Plaintiff identified herself as being of German

14 descent, but maintained that she experienced disparate treatment because she was not

15 Hispanic. HVPS moved for summary judgment, which the district court granted. This

16 appeal followed.

17 DISCUSSION

18 Standard of Review




                                               3
 1   {7}   We review a grant of summary judgment de novo. Juneau v. Intel Corp., 2006-

 2 NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. “All reasonable inferences from the

 3 record should be made in favor of the nonmoving party.” Id. The non-moving party

 4 must come forward and establish with admissible evidence that a genuine issue of

 5 material fact exists. Id. ¶ 15. “Summary judgment is appropriate where there are no

 6 genuine issues of material fact and the movant is entitled to judgment as a matter of

 7 law.” Id. ¶ 8 (internal quotation marks and citation omitted).

 8   {8}   The NMHRA tracks the language of Title VII, which makes it unlawful for an

 9 employer to discriminate against an individual on the basis of race, national origin,

10 or ancestry. When interpreting the NMHRA our Supreme Court has looked to federal

11 decisions for guidance.1 Smith, 1990-NMSC-020, ¶ 9. For claims of unlawful

12 discrimination the Court has used the burden shifting methodology set forth by the

13 United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

14 802-05 (1973). See Gonzales v. N.M. Dep’t of Health, 2000-NMSC-029, ¶¶ 20-21,

15 129 N.M. 586, 11 P.3d 550.



          1
16          The Court has cautioned that its “reliance on the methodology developed in
17 the federal courts, however, should not be interpreted as an indication that we have
18 adopted federal law as [its] own.” Smith v. FDC Corp., 1990-NMSC-020, ¶ 9, 109
19 N.M. 514, 787 P.2d 433.



                                             4
 1   {9}    Under this framework Plaintiff bears the initial burden of demonstrating a

 2 prima facie case of discrimination by showing “that [she] is a member of the protected

 3 group, that [she] was qualified to continue in [her] position, that [her] employment

 4 was terminated, and that [her] position was filled by someone not a member of the

 5 protected class[,]” or that “[she] was dismissed purportedly for misconduct nearly

 6 identical to that engaged in by one outside of the protected class who was nonetheless

 7 retained.” Smith, 1990-NMSC-020, ¶ 11 (citing Hawkins v. CECO Corp., 883 F.2d

 8 977, 982 (11th Cir.1989). A plaintiff “then has the opportunity to rebut the

 9 employer’s proffered reason as [pretextual].” Juneau, 2006-NMSC-002, ¶ 9.

10 Non-Hispanics are a Protected National Origin Group Under the NMHRA

11   {10}   In its motion for summary judgment, HVPS argued that since it was unaware

12 of Plaintiff’s German descent, it could not have discriminated against her on that

13 basis, and that there was a legitimate business purpose for not renewing Plaintiff’s

14 employment contract, which was not shown to be pretextual. Plaintiff, in turn, argued

15 that HVPS was aware that she was not Hispanic and that she was subject to

16 discrimination based on her status as a non-Hispanic. The district court found that

17 HVPS was not aware of Plaintiff’s asserted national origin, therefore, Plaintiff’s

18 national origin could not, as a matter of law, have been a motivating factor in the

19 decision to terminate her employment. The court did not address Plaintiff’s


                                             5
 1 contention that the discrimination was based on her status as a non-Hispanic. We

 2 conclude that this was error on the part of the district court.

 3   {11}   Though Plaintiff eventually identified herself as being of German descent, her

 4 primary contention from the outset was that HVPS was aware that she was not

 5 Hispanic, and discriminated against her on that basis. HVPS challenges the

 6 description of non-Hispanic as a protected national origin group under the NMHRA.

 7 Plaintiff argues that discrimination based on ethnic distinctions, such as Hispanic and

 8 non-Hispanic can appropriately be brought as claims for national origin

 9 discrimination. Our Supreme Court has not expressly addressed this issue. As we

10 previously stated, where there is no New Mexico precedent which resolves issues

11 regarding the NMHRA, we look to federal law interpreting Title VII for guidance.

12 Smith, 1990-NMSC-020, ¶ 9.

13   {12}   The United States Supreme Court has stated that the term “ ‘national origin’ on

14 its face refers to the country where a person was born, or, more broadly, the country

15 from which his or her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88

16 (1973). However, in Espinoza the Court also noted that hiring applicants “of Anglo-

17 Saxon background but refusing to hire those of Mexican or Spanish ancestry” or

18 “Spanish-speaking background” would constitute national origin discrimination,




                                               6
 1 suggesting that the term national origin can be interpreted broadly and does not

 2 require the identification of a specific country of origin. Id. at 92 n.5, 95.

 3   {13}   Following Espinoza, courts have interpreted the concept of national origin to

 4 “embrace a broader class of people,” and found the term to be “better understood by

 5 reference to certain traits or characteristics that can be linked to one’s place of origin,

 6 as opposed to a specific country or nation.” Kanaji v. Children’s Hosp. of Phila., 276

 7 F. Supp. 2d 399, 401-02 (E.D. Pa. 2003). Courts have also interpreted national origin

 8 discrimination to encompass discrimination based on ethnic distinctions. See Pejic

 9 v. Hughes Helicopters, Inc., 840 F.2d 667, 672-73 (9th Cir. 1988) (holding that

10 national origin discrimination could include discrimination based on membership in

11 ethnic groups); see also Beltran v. Univ. of Tex. Health Sci. Ctr., 837 F. Supp. 2d 635,

12 641 (S.D. Tex. 2011) (stating that “Title VII prohibits employment discrimination

13 against any national origin group, including larger ethnic groups, such as Hispanics”

14 (emphasis, internal quotation marks, and citation omitted)).

15   {14}   Classifications such as Caucasian, white, and non-Hispanic have been widely

16 accepted as protected in cases involving national origin discrimination claims. See

17 Turney v. Hyundai Constr. Equip. USA Inc., 482 F. App’x. 259, 260 (9th Cir. 2012)

18 (holding that the plaintiff who identified as Caucasian “belongs to a protected class

19 for purposes of his national origin discrimination claim because Title VII applies to


                                                7
 1 any racial group, whether minority or majority” (internal quotation marks and citation

 2 omitted)); Hawn v. Exec. Jet Mgmt., Inc., 546 F. Supp. 2d 703, 711, 717 (D. Ariz.

 3 2008) (holding that the plaintiff who identified his national origin as “Caucasian

 4 American of European descent” was a member of a protected class); Mohr v. Dustrol,

 5 Inc., 306 F.3d 636, 639-40 (8th Cir. 2002) (treating non-Hispanic as a protected class

 6 and reversing summary judgment on the plaintiff’s race and national origin

 7 discrimination claims), abrogated on other grounds by Desert Palace, Inc. v. Costa,

 8 539 U.S. 90 (2003); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 306, 312 (2d

 9 Cir. 1997) (finding that a “white American male of Eastern European origin” satisfied

10 a prima facie case for national origin discrimination); Cameron v. St. Francis Hosp.

11 & Med. Ctr., 56 F. Supp. 2d 235, 238-39 (D. Conn. 1999) (memo.) (accepting

12 classification of “white, non-Hispanic male of Scottish/European origin” as protected

13 class for national origin discrimination claim (internal quotation marks omitted)).

14   {15}   These decisions are consistent with the EEOC’s definition of national origin

15 discrimination, which includes, but is not limited to “the denial of equal employment

16 opportunity because of an individual’s, or his or her ancestor’s, place of origin; or

17 because an individual has the physical, cultural or linguistic characteristics of a

18 national origin group.” 29 C.F.R. § 1606.1 (2015). We also note that according to the

19 EEOC’s Compliance Manual, “[n]ational origin discrimination . . . includes


                                              8
 1 discrimination against anyone who does not belong to a particular ethnic group, for

 2 example, less favorable treatment of anyone who is not Hispanic.” EEOC Compl.

 3 Man.,      Nat’l   Origin   Discrimination,    §   13-II(B)   (2002),    available   at

 4 http://eeoc.gov/policy/docs/national-origin.html (last visited October 28, 2015). We

 5 find these authorities persuasive. We reject HVPS’ argument and conclude that

 6 national origin discrimination claims based on the ethnic distinction between

 7 Hispanics and non-Hispanics are actionable under the NMHRA.

 8 Reverse Discrimination Under the NMHRA

 9   {16}   By claiming that she was subject to discrimination on account of being white

10 and non-Hispanic, Plaintiff alleges that she was subject to reverse discrimination. See

11 Black’s Law Dictionary 567 (10th ed. 2014) (defining “reverse discrimination” as the

12 “[p]referential treatment of minorities, [in] a way that adversely affects members of

13 a majority group; [specifically], the practice of giving unfair treatment to a group of

14 people who have traditionally been privileged in an attempt to be fair to the group of

15 people unfairly treated in the past”).

16   {17}   The prima facie case, as originally applied in race and national origin

17 discrimination cases, required a plaintiff to demonstrate that they belonged to a racial

18 minority. McDonnell Douglas Corp., 411 U.S. at 802. This test cannot be strictly

19 applied in reverse discrimination cases. Mills v. Health Care Serv. Corp., 171 F.3d


                                              9
 1 450, 454 (7th Cir. 1999) (stating that the plaintiff—a white male—clearly did not

 2 satisfy prong one of the prima facie case of discrimination (which requires a showing

 3 that the plaintiff is a member of a protected minority class) and that “if strictly

 4 applied, the prima facie test would eliminate all reverse discrimination suits”).

 5   {18}   Our Supreme Court has not addressed the applicability of the McDonnell

 6 Douglas methodology to claims of reverse discrimination, or how a plaintiff alleging

 7 reverse discrimination can demonstrate that he belongs to a protected group.

 8 Accordingly, we once again look to federal law. See Smith, 1990-NMSC-020, ¶ 9.

 9 Title VII and Reverse Discrimination

10   {19}   The United States Supreme Court has acknowledged that although Title VII

11 was intended to eradicate discriminatory practices that disadvantaged minority

12 citizens, its plain language prohibits discriminatory preference for any racial group.

13 See Griggs v. Duke Power Co., 401 U.S. 424, 429-31 (1971) (stating that “[t]he

14 objective of Congress in the enactment of Title VII is plain from the language of the

15 statute. It was to achieve equality of employment opportunities and remove barriers

16 that have operated in the past to favor an identifiable group of white employees over

17 other employees[,]” but recognizing that in enacting Title VII, Congress proscribed

18 “[d]iscriminatory preference for any group, minority or majority” (emphasis added));

19 see also McDonnell Douglas, 411 U.S. at 800 (same).


                                             10
 1   {20}   In McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), Title

 2 VII’s applicability to claims of reverse discrimination was officially recognized. The

 3 United States Supreme Court applied the McDonnell Douglas framework even

 4 though the plaintiffs in that case could not satisfy the first requirement by

 5 demonstrating that they belonged to a racial minority. McDonald, 427 U.S. at 279 n.6,

 6 280 (holding that “Title VII prohibits racial discrimination against the white

 7 petitioners in this case upon the same standards as would be applicable were they

 8 [members of a racial minority]” and noting that the specification of the prima facie

 9 proof required under McDonnell Douglas “is not necessarily applicable in every

10 respect to differing factual situations”).

11   {21}   Courts recognize that a strict application of the McDonnell Douglas framework

12 would preclude reverse discrimination claims because the first prong would

13 disqualify majority plaintiffs. Mills, 171 F.3d at 454. McDonald establishes that this

14 result would be contrary to the language and scope of Title VII. 427 U.S. at 279-80,

15 282-83. The United States Supreme Court has not provided explicit guidance as to

16 how the McDonnell Douglas framework should be adapted or modified in reverse

17 discrimination cases, and federal circuit courts are divided on how to resolve the

18 question. Generally, federal circuits have approached the issue in one of two ways;




                                                11
 1 either heightening the standard for reverse discrimination of plaintiffs by requiring

 2 evidence of discrimination at the outset, or not.

 3 Heightening the Standard—The Background Circumstances Requirement

 4   {22}   The background circumstances standard was introduced by the United States

 5 Court of Appeals for the District of Columbia in Parker v. Baltimore & Ohio

 6 Railroad Co., 652 F.2d 1012, 1017-18 (1981). The Court explained the McDonnell

 7 Douglas framework was “not an arbitrary lightening of the plaintiff’s burden, but

 8 rather a procedural embodiment of the recognition that our nation has not yet freed

 9 itself from a legacy of hostile discrimination.” Parker, 652 F.2d at 1017. The Court

10 determined that the first prong of the prima facie case should be modified in reverse

11 discrimination cases so that, instead of showing membership in a protected minority

12 class, a majority plaintiff would be required to show background circumstances that

13 support the suspicion that the defendant is the unusual employer who discriminates

14 against the majority. Id.

15   {23}   The Sixth Circuit followed Parker but held that reverse discrimination

16 plaintiffs must show two things under the first prima facie prong: (1) that

17 “background circumstances support the suspicion that the defendant is that unusual

18 employer who discriminates against the majority”; and (2) “that the employer treated

19 differently[,] employees who were similarly situated but not members of the protected


                                            12
 1 group.” Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)

 2 (internal quotation marks and citation omitted). The court recognized that applying

 3 the background circumstances standard heightens the burden for majority plaintiffs

 4 by essentially requiring a demonstration of intentional discrimination at the outset.

 5 Id.

 6 The Tenth Circuit Standard—A Modified Test

 7   {24}   The Tenth Circuit attempted to ease the burden on majority plaintiffs with its

 8 modified version of the background circumstances test. Notari v. Denver Water

 9 Dep’t, 971 F.2d 585, 589 (10th Cir. 1992). The court determined that a heightened

10 burden for majority plaintiffs was appropriate in light of the purpose of Title VII, but

11 that where a majority plaintiff is unable show background circumstances through

12 direct evidence, he should be entitled to proceed beyond the prima facie stage by

13 presenting evidence sufficient to raise a reasonable inference of discrimination. Id.

14 at 590. Under the modified test, a majority plaintiff may state a prima facie case by

15 either using the background circumstances test or by showing “indirect evidence

16 sufficient to support a reasonable probability, that but for the plaintiff’s status [as a

17 member of the majority] the challenged [action] would have favored the plaintiff.”

18 Id.




                                              13
 1   {25}   Though Notari attempted to lower the background circumstances standard by

 2 providing an alternative way for majority plaintiffs to make out a prima facie case of

 3 discrimination, it is not clear how the alternative test is any easier to meet. In order

 4 for a plaintiff to meet the “but for” test, he would have to show facts indicating

 5 regular discrimination against the majority—a requirement similar to the Parker

 6 standard. See Mills, 171 F.3d at 456 (affirming the requirement of direct evidence,

 7 and stating that, where a majority plaintiff has no direct evidence and has failed to

 8 establish background circumstances, he must produce “other indirect evidence

 9 sufficient to support a reasonable probability[,] that but for his status as a white male

10 the challenged employment decision would not have occurred” (alterations, internal

11 quotation marks, and citation omitted)).

12 Pros and Cons of a Heightened Standard

13   {26}   Proponents of the heightened standard point out that the primary purpose of

14 Title VII is “to assure equality of employment opportunities and to eliminate those

15 discriminating practices and devices which have fostered racially stratified job

16 environments to the disadvantage of minority citizens.” Murray, 770 F.2d at 67

17 (internal quotation marks and citation omitted). Moreover, proponents assert the

18 inference of discrimination raised by the McDonnell Douglas prima facie case is

19 based on the presumption that minorities are disadvantaged in the workplace, a


                                              14
 1 presumption that does not apply to majority plaintiffs. See Harding v. Gray, 9 F.3d

 2 150, 153 (D.C. Cir. 1993).

 3   {27}   Critics of this approach argue that it places an unconscionably high burden on

 4 majority plaintiffs and virtually eliminates the burden shifting framework of

 5 McDonnell Douglas, which was designed to allow Title VII plaintiffs to proceed with

 6 their claims despite the unavailability of direct evidence. See Collins v. Sch. Dist. of

 7 Kansas City, 727 F. Supp. 1318, 1321 (W.D. Mo. 1990) (stating that the McDonnell

 8 Douglas framework was “a procedural embodiment of the recognition that

 9 employment discrimination is difficult to prove with only circumstantial evidence”

10 and that “Parker shifts the entire burden back to the plaintiff in one fell swoop”).

11   {28}   It should also be noted that imposing a heightened burden on majority plaintiffs

12 is difficult to reconcile with United States Supreme Court precedent. See Furnco

13 Const. Corp. v. Waters, 438 U.S. 567, 577 (1978) (stating that the prima facie case,

14 as stated in McDonnell Douglas, “was never intended to be rigid, mechanized, or

15 ritualistic” and that the “central focus of the inquiry in a [discrimination] case . . . is

16 always whether the employer is treating some people less favorably than others

17 because of their race, color, religion, sex, or national origin” (internal quotation

18 marks and citation omitted)); see also McDonald, 427 U.S. at 279 n.6, 280 n.8 (1976)

19 (holding that “Title VII prohibits racial discrimination against the white petitioners


                                               15
 1 in this case upon the same standards as would be applicable were they [members of

 2 a racial minority]” and noting that the specification of the prima facie proof required

 3 under McDonnell Douglas “is not necessarily applicable in every respect to differing

 4 factual situations” (emphasis added) (internal quotation marks and citation omitted)).

 5   {29}   Another potential pitfall of the background circumstances approach is that the

 6 application of the standard would require courts to determine “which groups are

 7 ‘socially favored’ and which are ‘socially disfavored’.” Collins, 727 F. Supp. at 1322.

 8 This is an unseemly task where “minority status for purposes of a prima facie case

 9 could have regional or local meaning.” Id. at 1322 n.2 (internal quotation marks and

10 citation omitted).

11   {30}   Currently, the background circumstances approach is followed by the United

12 States Court of Appeals for the District of Columbia, as well as the Sixth and Eighth

13 circuit courts. See Woods v. Perry, 375 F.3d 671, 673 (8th Cir. 2004), abrogated on

14 other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011);

15 Murray, 770 F.2d at 67; Parker, 652 F.2d at 1017. The modified background

16 circumstances test is followed by the Tenth and Seventh Circuits. See Notari, 971

17 F.2d at 589; see also Mills, 171 F.3d at 457.

18   {31}   State courts in New Jersey and Ohio have also adopted the heightened

19 standard. See Erickson v. Marsh & McLennan Co., 569 A.2d 793, 799 (N.J. 1990)


                                              16
 1 (stating that “when a complainant is a member of the majority and not representative

 2 of persons usually discriminated against in the work place, discrimination directed

 3 against that person is unusual” and “modification of the McDonnell[]Douglas

 4 first-prong is appropriate” (internal quotation marks omitted)); see also Jones v. MTD

 5 Consumer Grp., Inc., 2015-Ohio-1878, ¶ 27, 32 N.E.3d 1030 (holding that in order

 6 to establish a prima facie case of reverse discrimination, “a plaintiff must demonstrate

 7 background circumstances to support the suspicion that the defendant is that unusual

 8 employer who discriminates against the majority” (alteration, internal quotation

 9 marks, and citation omitted)).

10 Rejection of the Heightened Standard

11   {32}   Several circuit courts have declined to apply a heightened standard in reverse

12 discrimination cases. In Iadimarco v. Runyon, the Third Circuit expressly rejected

13 Parker, Notari, and their progeny. Iadimarco, 190 F.3d at 161-62. The court

14 identified several problems with the background circumstances approach including:

15 (1) Title VII and United States Supreme Court precedent do not support a heightened

16 standard; (2) a heightened standard undermines McDonnell Douglas by eliminating

17 some of the burden shifting to the employer; (3) the concept of background

18 circumstances is “irremediably vague and ill-defined,” which has prevented courts

19 using the standard from clearly defining this standard; and (4) application of the


                                              17
 1 standard may lead to jury confusion since evidence of background circumstances will

 2 likely duplicate or overlap evidence of pretext. Iadimarco, 190 F.3d at 160-63.

 3   {33}   The Third Circuit also noted that while the McDonnell Douglas framework

 4 provided an allocation of burdens and order of presentation of proof for a

 5 discrimination claim, the central focus in discrimination cases should be on “whether

 6 the employer is treating some people less favorably than others because of their race.”

 7 Iadimarco, 190 F.3d at 160 (internal quotation marks and citation omitted). The court

 8 concluded that a plaintiff alleging reverse discrimination should only be required to

 9 provide sufficient evidence “to allow a fact finder to conclude that the employer is

10 treating [him or her] less favorably than others based upon a [protected] trait.” Id. at

11 161.

12   {34}   The Second, Fourth, and Fifth Circuits have altered the first McDonnell

13 Douglas prong such that plaintiffs are not required to show that they belong to a

14 minority class, but rather that they belong to a protected group. See McGuinness v.

15 Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (stating that the first prong of the prima

16 facie case can be satisfied by a showing that a plaintiff is “within a protected group”);

17 see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000)

18 (acknowledging a marked retreat from the “racial minority” requirement and holding

19 that a plaintiff need not show that he belongs to a racial minority in order to make out


                                              18
 1 a prima facie case of reverse discrimination under Title VII); Lucas v. Dole, 835 F.2d

 2 532, 533 (4th Cir. 1987) (“To establish a prima facie case under McDonnell Douglas,

 3 a plaintiff must show [that] she is a member of a protected group[.]”).

 4   {35}   All three circuits have held that majority plaintiffs are a protected group under

 5 Title VII and have not imposed a heightened burden of proof in reverse

 6 discrimination cases. See McGuinness, 263 F.3d at 53-55 (holding that the plaintiff

 7 established a prima facie Title VII case based on race by proffering evidence that she

 8 was white); see also Byers, 209 F.3d at 426 (rejecting the argument that the plaintiff

 9 had failed to make out a prima facie case of discrimination because he was not a

10 minority); Lucas, 835 F.2d at 534 (stating that the plaintiff “is a member of a

11 protected group, whites”).

12   {36}   The Eleventh Circuit has adopted a similar standard. See Bass v. Bd. of Cnty.

13 Comm’rs, 256 F.3d 1095, 1103 (11th Cir. 2001), overruled on other grounds by

14 Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). In the context of traditional race

15 discrimination cases, the Eleventh Circuit has adopted a formulation of McDonnell

16 Douglas that requires the plaintiff to show that he belongs to a protected class rather

17 than to a protected minority. Hawkins v. CECO Corp., 883 F.2d 977, 982 (11th

18 Cir.1989) (in banc). Considering the elements of a prima facie case of reverse

19 discrimination the Court stated that “[r]acial discrimination against whites is just as


                                               19
 1 repugnant to constitutionally protected values of equality as racial discrimination

 2 against blacks. Therefore, we will treat [the plaintiff’s claims] as discrimination

 3 claims, not as ‘reverse discrimination’ claims, and we will analyze [them] exactly as

 4 we would any racial discrimination claim.” Bass, 256 F.3d at 1103-04.

 5 Pros and Cons of Abandoning the Heightened Standard

 6   {37}   Courts seem to be trending away from imposing a heightened burden on

 7 reverse discrimination plaintiffs. Even the Sixth Circuit, which currently uses the

 8 most stringent formulation of the background circumstances test, has questioned

 9 whether it should modify its approach. See Zambetti v. Cuyahoga Cmty. Coll., 314

10 F.3d 249, 257 (6th Cir. 2002) (expressing concern that “the background

11 circumstances prong, only required of reverse discrimination plaintiffs, may

12 impermissibly impose a heightened pleading standard on majority victims of

13 discrimination” (internal quotation marks and citation omitted)); see also Pierce v.

14 Commonwealth Life Ins. Co., 40 F.3d 796, 801 n.7 (6th Cir.1994) (stating “[w]e have

15 serious misgivings about the soundness of a test which imposes a more onerous

16 standard for plaintiffs who are white or male than for their non-white or female

17 counterparts”).

18   {38}   Proponents of the heightened standard fear that abandoning the background

19 circumstances test will “stifle legitimate employment decisions to diversify and


                                            20
 1 correct the historical imbalance for which Title VII was enacted[,]” and undermine

 2 the legislative intent of Title VII. See Ryan Mainhardt & William Volet, The First

 3 Prong’s Effect on the Docket: How the Second Circuit Should Modify the McDonnell

 4 Douglas Framework in Title VII Reverse Discrimination Claims, 30 Hofstra Lab. &

 5 Emp. L.J. 219, 259-60 (2012).

 6   {39}   However, the trend toward a more “holistic assessment” of evidence in Title

 7 VII claims is consistent with current United States Supreme Court precedent,

 8 sidesteps the trappings of the background circumstances test, provides a uniform

 9 standard for all plaintiffs while maintaining the burden shifting framework of

10 McDonnell Douglas, and is more workable in regions where it is becoming more

11 common for a white person to be in the minority. Mainhardt & Volet, supra, at 258-

12 59.

13   {40}   Currently, the Second, Fourth, Fifth, and Eleventh Circuits have rejected a

14 heightened standard, along with state courts in Florida, Michigan, and Texas. See

15 McGuinness, 263 F.3d at 53; see also Iadimarco, 190 F.3d at 161; Lucas, 835 F.2d

16 at 533; Byers, 209 F.3d at 426; Bass, 256 F.3d at 1103; Scholz v. RDV Sports, Inc.,

17 710 So. 2d 618, 623 (Fla. Dist. Ct. App. 1998) (requiring that a plaintiff alleging a

18 claim of reverse discrimination prove that he or she belongs to a class rather than

19 requiring “the plaintiff to show the existence of background circumstances which


                                             21
 1 support the suspicion that the defendant is that unusual employer who discriminates

 2 against the majority” (alteration, internal quotation marks, and citation omitted));

 3 Lind v. City of Battle Creek, 681 N.W.2d 334, 335 (2004) (holding that in order to

 4 establish a prima facie case of intentional disparate treatment under the McDonnell

 5 Douglas framework, a reverse discrimination plaintiff need not establish

 6 “background circumstances supporting the suspicion that the defendant is that

 7 unusual employer who discriminates against the majority” (internal quotation marks

 8 and citation omitted)); Piazza v. Cinemark, USA, Inc., 179 S.W.3d 213, 215 (Tex.

 9 Ct. App. 2005) (treating a reverse discrimination plaintiff as a member of a protected

10 class and applying McDonnell Douglas without imposing a heightened burden).2


           2
11           California and Delaware have also rejected the heightened burden, however
12   the relevant decisions in those states are unpublished. See Ennis v. Del. Transit.
13   Corp., C.A. No. S13C-09-028 THG, 2015 WL 1542151, at 5 n.46, (Del. Super. Ct.
14   Mar. 9, 2015) (“A white plaintiff alleging disparate treatment in a reverse
15   discrimination case is not expected to prove any additional prima facie elements to
16   satisfy his initial McDonnell Douglas burden. A reverse discrimination plaintiff is
17   only required to establish that which a minority is expected to prove in the typical
18   employment discrimination case.” (internal quotation marks and citation omitted));
19   Berro v. Cnty. of Los Angeles, No. B223515, 2014 WL 7271181, at 6 n.6, (Cal. Ct.
20   App. Dec. 22, 2014) (noting that while some federal courts have imposed an
21   increased burden on Caucasian plaintiffs alleging racial discrimination under Title
22   VII, “no California court has required a Caucasian plaintiff to make such a heightened
23   showing in order to establish a claim under [the California Fair Employment and
24   Housing Act, Ann. Cal. Gov. Code, §§ 12940 to 12956.2 (1980, as amended through
25   2015)] for reverse racial discrimination, and we decline to impose such a requirement
26   here”).


                                              22
 1 McDonnell Douglas in New Mexico

 2   {41}   In Smith, the New Mexico Supreme Court considered how a prima facie case

 3 of discrimination could be made out under the NMHRA. 1990-NMSC-020, ¶¶ 9-11.

 4 The Court looked to McDonnell Douglas for guidance concerning the shifting of

 5 evidentiary burdens. Smith, 1990-NMSC-020, ¶¶ 9-10. However, the Court

 6 recognized that the McDonnell Douglas framework “is not a required method of

 7 proof; it is only a tool to focus the issues and to reach the ultimate issue of whether

 8 the employer’s actions were motivated by impermissible discrimination.” Smith,

 9 1990-NMSC-020, ¶ 10.

10   {42}   The Court determined that the first prong of a prima facie case of

11 discrimination could be satisfied upon a “showing that the plaintiff is a member of

12 the protected group.” Id. ¶ 11 (emphasis added). It is worth noting that, in addition

13 to recognizing the McDonnell Douglas framework as a tool rather than a mechanical

14 formula, the Court chose the more neutral term “protected group” in setting out the

15 first requirement of a prima facie case of discrimination, and the Court relied on

16 precedent from federal circuits that take the more holistic and less rigid approach to

17 analyzing reverse discrimination claims. Smith, 1990-NMSC-020, ¶¶ 9-11.

18   {43}   After reviewing these authorities, we conclude that Plaintiff is not required to

19 meet a heightened standard. Applying a formulation of the McDonnell Douglas


                                               23
 1 prima facie case that holds both discrimination and reverse discrimination plaintiffs

 2 to the same standards reflects the purpose and philosophy behind Title VII as

 3 expressed by the United States Supreme Court. See Wygant v. Jackson Bd. of Educ.,

 4 476 U.S. 267, 273 (1986) (O’Connor, J., plurality opinion) (stating that “[r]acial and

 5 ethnic distinctions of any sort are inherently suspect and thus call for the most

 6 exacting judicial examination” and “the level of scrutiny does not change merely

 7 because the challenged classification operates against a group that historically has

 8 not been subject to governmental discrimination”); see also Bass, 256 F.3d at 1103

 9 (“ ‘Our constitution is color-blind, and neither knows nor tolerates classes among

10 citizens. In respect of civil rights, all citizens are equal before the law.’ ”) (citing

11 Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting); Adarand

12 Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part)

13 (“In the eyes of government, we are just one race here. It is American.”); Regents of

14 Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90 (1978) (plurality opinion) (“The

15 guarantee of equal protection cannot mean one thing when applied to one individual

16 and something else when applied to a person of another color.”). Accordingly, we

17 will analyze a reverse discrimination claim as we would any racial discrimination

18 claim.




                                              24
 1 Plaintiff’s Case Against Summary Judgment

 2   {44}   In its motion for summary judgment, HVPS argued that Plaintiff failed to

 3 make out a prima facie case of discrimination. HVPS also asserted that it had a

 4 legitimate purpose for terminating Plaintiff’s employment, citing an unsatisfactory

 5 evaluation and performance issues. Among the evidence of Plaintiff’s purported

 6 performance issues was evidence that she had been involved in minor traffic

 7 accidents while driving her bus.

 8   {45}   Arguing against summary judgment, Plaintiff identified her protected group

 9 as white, or non-Hispanic. She presented her performance evaluation form, which

10 did not describe her competence in any of the eleven evaluated categories as being

11 unsatisfactory. Plaintiff also presented evidence concerning her training and

12 experience, as well as evidence that other HVPS drivers, who did not belong to the

13 protected class, had similar performance issues and were not terminated. Thus,

14 Plaintiff has satisfied the prima facie case requirement to show that the

15 circumstances of her termination give rise to an inference of discrimination and the

16 burden shifts to HVPS to provide a legitimate purpose for Plaintiff’s termination.

17 Smith, 1990-NMSC-020, ¶ 11.

18   {46}   HVPS claims that Plaintiff failed to raise a genuine issue of material fact that

19 HVPS’ reasons for not renewing her employment contract were pretext. A plaintiff


                                               25
 1 can show pretext by introducing “evidence of the falsity of the proffered reason for

 2 the employment action.” Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-

 3 003, ¶ 45, 130 N.M. 25, 16 P.3d 1084. As the New Mexico Supreme Court has

 4 noted, “[i]t is rare a defendant keeps documents or makes statements that directly

 5 indicate a retaliatory motive for terminating an employee.” Therefore, “whether a

 6 proffered justification is legitimate, or is merely an excuse to cover up illegal

 7 conduct, is largely a credibility issue and often requires the use of circumstantial

 8 evidence.” Juneau, 2006-NMSC-002, ¶ 23. “[S]ummary judgment is not an

 9 appropriate vehicle for courts” to weigh the evidence and judge the credibility of

10 witnesses. Id. ¶ 27. Here, Plaintiff’s evidence was sufficient to raise a question as to

11 pretext. See id. ¶ 25 (“[The p]laintiff is not required to show disputed issues of fact

12 for every element of the claim[.]”).

13   {47}   HVPS argues that the deposition testimony of Byron Adams identifying a

14 Hispanic male as one about whom he complained regarding the cleanliness of his

15 bus, and was not fired—is hearsay and should not be considered. Plaintiff’s counsel

16 questioned Mr. Adams as follows:

17          Q.     And you have complained to those people also—for those people, also,
18                 to Stephanie Brownfield?

19          A.     To Vicky.

20          ....

                                              26
 1          Q.     Okay. But to your knowledge, those people whom you’ve made
 2                 complaints about their bus not being clean still work for the—

 3          A.     Yes.

 4          Q.     All right. Can you give me some names?

 5          ....

 6          A.     Henry Avalos.

 7 It was Mr. Adams who made the complaint and Plaintiff’s counsel qualified her

 8 secondary question by basing it on his knowledge. It is clear that Mr. Adams’

 9 testimony was based on personal knowledge and does not fall within the realm of

10 hearsay. See Rule 11-602 NMRA (“A witness may testify to a matter only if

11 evidence is introduced sufficient to support a finding that the witness has personal

12 knowledge of the matter. Evidence to prove personal knowledge may consist of the

13 witness’s own testimony.”); cf. Rule 11-801(C)(1), (2) NMRA (defining “[h]earsay”

14 as “a statement that . . . the declarant does not make while testifying at the current

15 trial or hearing, and . . . a party offers in evidence to prove the truth of the matter

16 asserted in the statement” (internal quotation marks omitted)).

17   {48}   We conclude that Plaintiff put forward sufficient evidence below to create

18 genuine issues of material fact with respect to her discrimination claim against

19 HVPS. Bartlett v. Mirabal, 2000-NMCA-036, ¶ 17, 128 N.M. 830, 999 P.2d 1062




                                             27
1 (stating that the nonmoving party does not need to present enough evidence to

2 support all elements of the case, only that one or two factual issues are contested).

3 CONCLUSION

4   {49}   We reverse the district court’s summary judgment dismissing Plaintiff’s claim

5 for the reasons stated in this Opinion and remand it to the district court for

6 proceedings consistent with this Opinion.

7   {50}   IT IS SO ORDERED.


8
9                                          M. MONICA ZAMORA, Judge

10 WE CONCUR:


11
12 RODERICK T. KENNEDY, Judge


13
14 TIMOTHY L. GARCIA, Judge




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