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

 2 LILY RENTERIA,

 3          Plaintiff-Appellant,

 4 v.                                                                    No. 36,019

 5 ROSWELL LITERACY COUNCIL, INC.
 6 and ANDRAE ENGLAND,

 7          Defendants-Appellees.

 8 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 9 Kea W. Riggs, District Judge

10 Barbara A. Patterson Law Firm, PC
11 Barbara A. Patterson
12 Roswell, NM

13 for Appellant

14 Thomas E. Lilley
15 Roswell, NM

16 Marion J. Craig, III
17 Roswell, NM

18 for Appellees

19                                 MEMORANDUM OPINION

20 ZAMORA, Judge.
 1   {1}   Plaintiff Lily Renteria appeals following the district court’s entry of summary

 2 judgment dismissing her claims against Defendants Roswell Literacy Council, Inc.

 3 and Andrae England (collectively, Employer). [DS 2; RP 142, 145] This Court issued

 4 a notice proposing to summarily affirm. Plaintiff filed a memorandum in opposition,

 5 which we have duly considered. Remaining unpersuaded, we affirm.

 6   {2}   The basis for most of our opinion is Plaintiff’s failure to introduce any evidence

 7 below supporting her claims. Employer filed a motion for summary judgment and an

 8 amended memorandum in support of its motion with attached exhibits. [RP 54-82, 93-

 9 120] Plaintiff’s responses argue Employer’s exhibits should be disregarded and the

10 motion should be treated as a motion to dismiss based on the allegations in Plaintiff’s

11 complaint. [RP 84, 123, 125] Plaintiff argued below Employer’s memorandum in

12 support does not comply with Rule 1-56(D)(2) NMRA, which sets forth the time and

13 procedure for filing a motion for summary judgment, because Employer did not set

14 out all the material facts to which it contends there is no genuine issue of material fact.

15 [RP 83–84] We note, however, Employer’s amended memorandum in support sets

16 forth undisputed facts. [RP 93–94] Plaintiff cites no other authority explaining why

17 a motion to dismiss standard should apply. As we discuss in more detail below,

18 Plaintiff did not present any evidence contradicting the facts presented by Employer.




                                                2
 1   {3}   Plaintiff continues to argue the district court erred in granting summary

 2 judgment on her wrongful termination claim because, Plaintiff asserts, the New

 3 Mexico Human Rights Act (NMHRA), NMSA 1978, Sections 28-1-1 to -14 (1969,

 4 as amended through 2007), does not provide the exclusive remedy for wrongful

 5 termination, and Employer failed to prove it is an “employer” within the meaning of

 6 the NMHRA. [MIO 3, 4] Thus, Plaintiff argues she was not required to exhaust

 7 administrative remedies before pursuing her claims in district court. [MIO 3-4] As we

 8 stated in our notice of proposed disposition, “[u]nder the NMHRA, a plaintiff must

 9 exhaust his or her administrative remedies against a party before bringing an action

10 in district court against that party.” Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 130

11 N.M. 238, 22 P.3d 1188. “[W]here relief is available from an administrative agency,

12 the plaintiff is ordinarily required to pursue that avenue of redress before proceeding

13 to the courts; and until that recourse is exhausted, suit is premature and must be

14 dismissed.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 26, 142 N.M. 786, 171

15 P.3d 300 (internal quotation marks and citation omitted). [CN 3] Plaintiff continues

16 to cite Gandy v.Wal-Mart Stores, Inc., 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859,

17 in support of her assertion the NMHRA does not provide the exclusive remedy for her

18 claims, and, thus, she was not required to exhaust her administrative remedies. [CN

19 4] However, this Court clarified Gandy in Gormley v. Coca-Cola Enters., 2004-



                                              3
 1 NMCA-021, ¶ 8, 135 N.M. 128, 85 P.3d 252, and noted employees may pursue

 2 independent tort claims only for retaliatory discharge, intentional infliction of

 3 emotional distress (IIED), and prima facie tort without first filing a NMHRA

 4 complaint. Plaintiff’s claim for wrongful termination is not one of these types of

 5 independent tort claims; in fact, the public policy allegedly violated was a policy

 6 established by the NMHRA itself, the policy that a serious medical condition should

 7 not be the basis of an employee’s termination. [MIO 4] See § 28-1-7(A). Therefore,

 8 Plaintiff’s claim was not properly before the district court because Plaintiff did not

 9 first exhaust the remedies afforded by the NMHRA.

10   {4}   Plaintiff next argues Employer failed to meet its burden to demonstrate it is an

11 “employer” within the meaning of the NMRHA, because it employs four or more

12 employees. [MIO 3] We note, however, “[t]he movant need only make a prima facie

13 showing that he is entitled to summary judgment. Upon the movant making a prima

14 facie showing, the burden shifts to the party opposing the motion to demonstrate the

15 existence of specific evidentiary facts which would require trial on the merits.” Roth

16 v. Thompson, 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241 (citation omitted).

17 “[T]he party opposing summary judgment has the burden to demonstrate the existence

18 of specific evidentiary facts which would require trial on the merits. A party may not

19 simply argue that such evidentiary facts might exist, nor may it rest upon the



                                               4
 1 allegations of the complaint.” Horne v. Los Alamos Nat’l Sec., L.L.C., 2013-NMSC-

 2 004, ¶ 15, 296 P.3d 478 (alteration, internal quotation marks, and citations omitted).

 3 Moreover, as we stated in our notice, “[the p]laintiffs, who have alleged in their

 4 complaint that they have exhausted their administrative remedies, have the burden of

 5 proving such in order for their case to proceed at the district court level.” Rist v.

 6 Design Center at Floor Concepts, 2013-NMCA-109, ¶ 11, 314 P.3d 681. Plaintiff’s

 7 assertion that Employer bears the burden at the summary judgment stage misstates her

 8 burden of proof. Once Employer made a prima facie showing Plaintiff failed to

 9 exhaust her administrative remedies, the burden shifted to Plaintiff to demonstrate

10 Employer was outside the authority of the NMHRA and, thus, Plaintiff was not

11 required to pursue a remedy through the NMHRA. As we also noted in our proposed

12 disposition, aside from merely asserting Employer is not within the authority of the

13 NMHRA, Plaintiff provided no facts to support her assertion. “It is not our practice

14 to rely on assertions of counsel unaccompanied by support in the record. The mere

15 assertions and arguments of counsel are not evidence.” Chan v. Montoya, 2011-

16 NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (internal quotation marks and citation

17 omitted). Aside from bare assertions, Plaintiff has not presented any facts, by way of

18 an affidavit or other evidence, demonstrating Employer is not an “employer” under

19 the NMHRA. [CN 4] We therefore conclude the district court did not err in granting



                                             5
 1 summary judgment in favor of Employer on the ground Plaintiff failed to exhaust

 2 administrative remedies.

 3   {5}   Plaintiff next argues the district court erred in granting summary judgment on

 4 her claim for IIED because “[t]he [d]istrict [c]ourt should have evaluated Plaintiff’s

 5 claim in this matter on the specific facts underlying Plaintiff’s claims.” [MIO 6]

 6 However, aside from her assertions, Plaintiff presented no specific facts for the district

 7 court to evaluate. We note Plaintiff asserts in her memorandum in opposition she was

 8 terminated while she was recovering from medical treatment. [MIO 6] Thus, Plaintiff

 9 argues her circumstances are similar to those in Stock v. Grantham, 1998-NMCA-

10 081, ¶ 35, 125 N.M. 564, 964 P.2d 125, in which this Court held the allegation the

11 employee was terminated while she was at the hospital and recovering from surgery

12 for her ruptured colon was sufficient to survive a motion to dismiss, but more specific

13 information about the employee’s condition at the time was necessary to determine

14 whether such conduct was extreme and outrageous. [MIO 6] Plaintiff also argues the

15 district court should have required additional testimony and evidence regarding the

16 circumstances of her termination. [MIO 7] We reiterate, as the party opposing

17 summary judgment, Plaintiff has the burden “to demonstrate the existence of specific

18 evidentiary facts which would require trial on the merits. A party may not simply

19 argue that such evidentiary facts might exist, nor may it rest upon the allegations of



                                               6
 1 the complaint.” Horne, 2013-NMSC-004, ¶ 15 (alteration, internal quotation marks,

 2 and citations omitted). Beyond the assertion she was in the hospital at the time she

 3 was terminated, Plaintiff has not pointed out any specific facts or evidence showing

 4 Employer engaged in any extreme or outrageous conduct. We therefore conclude the

 5 district court did not err in granting summary judgment on Plaintiff’s IIED claim in

 6 favor of Employer.

 7   {6}   Finally, Plaintiff argues for the first time in her memorandum in opposition that

 8 the district court erred in granting summary judgment on her claim of prima facie tort,

 9 because the district court’s dismissal of Plaintiff’s wrongful termination and IIED

10 claims based on the lack of unlawful conduct by Employer, and the dismissal of her

11 prima facie tort claim based on lack of evidence of a lawful act are inconsistent. Thus,

12 Plaintiff argues, the dismissal of that claim was premature, and whether Employer

13 committed prima facie tort should be decided by a jury. [MIO 8-9] We note Plaintiff

14 did not raise the dismissal of her prima facie tort claim as an issue in her docketing

15 statement and construe the addition of this issue as a motion to amend her docketing

16 statement. The essential requirements to show good cause for allowance of an

17 amendment to an appellant’s docketing statement are: (1) the motion be timely, (2) the

18 new issue sought to be raised was either (a) properly preserved below or (b) allowed

19 to be raised for the first time on appeal, and (3) the issue raised is viable. See State v.



                                                7
 1 Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other

 2 grounds by State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. For the

 3 reasons that follow, we deny Plaintiff’s motion to amend the docketing statement on

 4 the ground the issue raised is not viable.

 5   {7}   Beyond her own assertions and the allegations in her complaint, Plaintiff did

 6 not present any evidence supporting this cause of action. Employer made a prima facie

 7 case Plaintiff’s cause of action was without merit, Plaintiff did not contradict that

 8 showing with any evidence. Furthermore, Plaintiff does not explain how she has met

 9 the requirements of this cause of action. “We will not review unclear arguments, or

10 guess at what [a party’s] arguments might be.” Headley v. Morgan Mgmt. Corp.,

11 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. We therefore conclude the

12 district court did not err in granting summary judgment on Plaintiff’s claim of prima

13 facie tort.

14   {8}   Accordingly, for the reasons stated above and in this Court’s notice of proposed

15 disposition, we hold the district court did not err in granting summary judgment in

16 favor of Employer and affirm.

17   {9}   IT IS SO ORDERED.


18
19                                          M. MONICA ZAMORA, Judge



                                                8
1 WE CONCUR:


2
3 LINDA M. VANZI, Chief Judge


4
5 TIMOTHY L. GARCIA, Judge




                                9
