                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 19, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DARYL ORTEGA,

             Plaintiff-Appellant,

v.                                                         No. 12-2112
                                               (D.C. No. 1:10-CV-00998-BB-ACT)
QWEST CORPORATION; STEVE                                    (D. N.M.)
KAMINSKI, as an employee of Qwest
Corporation,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      Daryl Ortega worked as a Network Technician for Qwest from July 1998 until

he was terminated in November 2009. Qwest terminated Mr. Ortega for

unsatisfactory performance after Mr. Ortega allegedly threatened a third-party

contractor at Qwest’s office in Taos, New Mexico. Mr. Ortega’s union challenged

the termination under the Collective Bargaining Agreement (CBA), but the

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
termination was upheld after the grievance went to arbitration. Mr. Ortega ultimately

filed a complaint against Qwest and Steve Kaminski, his direct supervisor. He

alleged that he was discriminated against on the basis of race resulting in disparate

treatment and a hostile work environment and that he was retaliated against for

reporting an incident of racial discrimination. He also alleged that he was wrongfully

terminated in violation of state law.

      Defendants moved for summary judgment on all claims. Considering

Mr. Ortega’s disparate treatment claim under the traditional burden-shifting analysis

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the district

court determined that Mr. Ortega had established a prima facie case of discrimination

and that Qwest had articulated a legitimate, nondiscriminatory reason for terminating

him. The district court concluded, however, that Qwest was entitled to summary

judgment on this claim because Mr. Ortega had failed to demonstrate that Qwest’s

reason for terminating him—threatening a third-party contractor in violation of

Qwest’s code of conduct—was pretextual or unworthy of belief.

      Next, the district court determined that summary judgment was appropriate on

Mr. Ortega’s hostile-work-environment and retaliation claims. The district court

concluded that the four race-based comments and the two incidents of discipline or

increased scrutiny Mr. Ortega identified did not rise to the level of pervasive or

severe harassment sufficient to create a hostile work environment. As for the

retaliation claim, the district court concluded that Mr. Ortega had failed to establish a


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causal connection between his report of discrimination in 2007 and his termination in

2009.

        Finally, the district court determined that summary judgment was proper on

Mr. Ortega’s state-law wrongful termination claim. The court noted that Mr. Ortega

was not an at-will employee as his employment was governed by the CBA and his

union had pursued a grievance after he was terminated. The district court explained

that “New Mexico law has recognized that employees whose employment is

governed by a CBA, which only permits an employee to be terminated for cause and

provides a grievance procedure if an employee believes he was terminated unfairly, is

not an at-will employee and cannot recover damages under the tort of retaliatory

discharge.” Aplt. App. at 212. The court therefore concluded that the tort of

wrongful termination was not available to Mr. Ortega.

        On appeal, Mr. Ortega argues generally that the district court erred in granting

summary judgment because there are triable issues of fact in dispute. We have

reviewed the record, the briefs, and the relevant legal authority under a de novo

standard of review, see Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 826 (10th

Cir. 2012), and we agree with the district court’s cogent and well-reasoned analysis.

Accordingly, for substantially the same reasons as articulated by the district court in

its Memorandum Opinion dated June 6, 2012, we affirm.

                                                       Entered for the Court

                                                       Bobby R. Baldock
                                                       Circuit Judge

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