                                                               I attest to the accuracy and
                                                                integrity of this document
                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'04- 11:19:08 2018.04.11

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-020

Filing Date: March 1, 2018

Docket No. S-1-SC-35641

NATALIE F. GARCIA,

       Plaintiff-Respondent,

v.

HATCH VALLEY PUBLIC SCHOOLS,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Douglas R. Driggers, District Judge

German Burnette & Associates, LLC
Ethan Watson
Elizabeth L. German
Albuquerque, NM

for Petitioner

John P. Mobbs
El Paso, TX

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

for Respondent

                                      OPINION

MAES, Justice.

{1}    Plaintiff Natalie Garcia, née Watkins, sued her former employer, Defendant Hatch
Valley Public Schools (HVPS), for employment discrimination under the New Mexico
Human Rights Act (NMHRA), NMSA 1978, § 28-1-7(A), (I) (2004). Plaintiff alleged that

                                          1
HVPS terminated her employment as a school bus driver based on her national origin, which
she described as “German” and “NOT Hispanic.” HVPS successfully moved for summary
judgment in the district court, and the Court of Appeals reversed, focusing on Plaintiff’s
“primary contention” that HVPS had discriminated against her and terminated her
employment because she is not Hispanic. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-
034, ¶¶ 11, 48, 369 P.3d 1.

{2}     We granted certiorari under Rule 12-502 NMRA and reverse the Court of Appeals.
We hold that summary judgment in HVPS’s favor was appropriate because Plaintiff failed
to establish a prima facie case of discrimination and failed to raise a genuine issue of
material fact about whether HVPS’s asserted reason for terminating her employment was
pretextual. In so holding, we also conclude that (1) the Court of Appeals properly focused
on Plaintiff’s contention that she is not Hispanic in analyzing her discrimination claim, (2)
Plaintiff may claim discrimination under the NMHRA as a non-Hispanic, and (3) the plain
language of the NMHRA does not place a heightened evidentiary burden on a plaintiff in
a so-called “reverse” discrimination case.

I.      BACKGROUND

{3}      HVPS hired Plaintiff as a school bus driver in August of 2008 and renewed her
contract for the 2009-2010 school year. In April of 2010, HVPS notified Plaintiff by letter
that it would “terminate” her employment at the end of her contract and that it would not
offer her a contract for the 2010-2011 school year. HVPS explained that it was terminating
Plaintiff’s employment “due to an unsatisfactory evaluation.”

{4}      Plaintiff filed a complaint against HVPS with the Equal Employment Opportunity
Commission (EEOC) alleging race and national origin discrimination under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17 (2012). Plaintiff
contended that her supervisor, Stephanie Brownfield, had discriminated and retaliated
against her because Plaintiff is White and non-Hispanic. The EEOC issued an order of non-
determination, and Plaintiff timely filed suit, alleging inter alia claims of discrimination and
retaliation under the NMHRA, Section 28-1-7(A), (I), based upon Plaintiff’s race and
national origin. After a series of procedural steps, most of which are not relevant to this
appeal, Plaintiff narrowed her complaint to a claim of discrimination under the NMHRA
based on her national origin, which she characterized as “German” and “NOT Hispanic.”

{5}     HVPS later moved for summary judgment and we address the summary judgment
proceedings in detail below. For present purposes, we note that the district court ruled in
HVPS’s favor, concluding that the uncontroverted evidence showed that Brownfield was
unaware that Plaintiff was of German descent and that Plaintiff’s national origin, therefore,
could not have been a motivating factor in the termination of her employment. The district
court concluded in the alternative that Plaintiff had failed to raise a genuine issue of material
fact to establish that HVPS’s “stated legitimate business reason for the termination of her
employment was pretextual.”

                                               2
{6}     Plaintiff appealed, and the Court of Appeals reversed. Garcia, 2016-NMCA-034,
¶ 49. The Court focused on Plaintiff’s claim that she was discriminated against because she
is not Hispanic and applied the federal burden-shifting framework that we approved in Smith
v. FDC Corp. for analyzing a discrimination claim under the NMHRA to HVPS’s motion
for summary judgment. 1990-NMSC-020, ¶ 9, 109 N.M. 514, 787 P.2d 433 (“The
evidentiary methodology adopted [in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)] provides guidance for proving a violation of the [NMHRA].”). The Court of
Appeals concluded that Plaintiff had established a prima facie case of discrimination and had
raised a genuine issue of material fact on the issue of pretext, citing evidence of a Hispanic
employee who reportedly had a dirty bus but was not fired. Garcia, 2016-NMCA-034, ¶¶
45, 47. The Court therefore held the ultimate question of whether HVPS had discriminated
against Plaintiff was for the jury to decide. See id. ¶¶ 46-47. We review additional facts and
procedural history as necessary throughout this opinion.

II.     DISCUSSION

{7}     We granted certiorari on three issues: (1) whether the Court of Appeals erred in
analyzing Plaintiff’s claim for national origin discrimination as a claim for reverse racial
discrimination; (2) if the Court of Appeals properly analyzed Plaintiff’s national origin
discrimination claim as a reverse racial discrimination claim, whether the Court erred in
holding that so-called reverse discrimination plaintiffs do not have to meet a higher standard
under the NMHRA; and (3) whether the Court of Appeals erred in reversing the district
court’s grant of summary judgment in favor of HVPS. These are questions of law, which
we review de novo. See Juneau v. Intel Corp., 2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d
548.

A.      The Court of Appeals Properly Focused on Plaintiff’s Contention that She Is
        Not Hispanic in Analyzing Her Discrimination Claim

{8}     As a threshold issue, we first address an aspect of this case that became unnecessarily
complicated due to HVPS’s litigation strategy in the district court. We discuss the issue in
some detail to discourage similar tactics that needlessly consume the resources of courts and
litigants alike. Like the Court of Appeals, we hold that the district court improperly focused
on whether Brownfield knew that Plaintiff was of German descent when it granted summary
judgment in HVPS’s favor. See Garcia, 2016-NMCA-034, ¶ 10. We consider Plaintiff’s
alleged Germanic origins to be a false issue in this case, inserted only in response to HVPS’s
formalistic challenge to a routine discrimination claim.

{9}     Throughout this litigation, Plaintiff’s consistent position has been that she was treated
differently than her Hispanic coworkers and ultimately terminated because she is not
Hispanic. Plaintiff identified herself in her original complaint as “a female citizen of the
United States of America,” and she alleged that she “was subjected to discrimination . . .
because of her race and/or national origin being of Caucasian descent.” See § 28-1-7(A)
(prohibiting discrimination by an employer based, inter alia, on a person’s race or national

                                               3
origin). Plaintiff elaborated that she was treated differently than her coworkers “due to her
not being Hispanic.” She also alleged specific examples of how she was treated differently
from various coworkers, whom she described as “being of Hispanic Origin” or “of Hispanic
descent.”

{10} HVPS moved for judgment on the pleadings and, in its motion, revealed that it fully
understood the basis of Plaintiff’s claim. In HVPS’s own words, “Plaintiff is apparently
claiming she was discriminated against because she is a white non-Hispanic American.”
HVPS argued, however, that Plaintiff had failed to state a claim for racial discrimination
because “White persons and Hispanic persons are both of the Caucasian race.” HVPS
similarly argued that Plaintiff had failed to state a claim for national origin discrimination
because Plaintiff had failed to specify her national origin; more specifically, HVPS argued
that identifying herself as an “American citizen” was insufficient. HVPS summed up the
nature of its argument as follows at the hearing on its motion:

               I’m not denying that there can be discrimination based on one’s
       ethnicity, but those are more properly alleged or more properly pled in the
       [NMHRA] under other issues besides race or national origin. If they are
       under national origin, there has to be a national origin. American does not
       cut it.

               It’s not our job to help the plaintiff plead her case. She pleads her
       case, and then we respond.

{11} The district court denied the motion but specifically found that “Plaintiff’s Complaint
[did] not set forth the elements necessary to state a cause of action for national origin
discrimination.” The district court therefore gave Plaintiff leave to amend her complaint and
warned that “her cause of action will be dismissed unless the Amended Complaint sets forth
the elements necessary to go forward with her claims.” Plaintiff promptly amended her
complaint, dropping racial discrimination as a basis for recovery and amending her national
origin discrimination claim by describing herself for the first time as “German” and “of
German descent.” Her amended complaint, however, continued to allege that “she was
treated differently than other . . . workers due to the fact that she was NOT Hispanic” and
continued to describe her coworkers who allegedly received more favorable treatment as
“ALL Hispanic.” (Bold face in original.)

{12} Defendant eventually moved for summary judgment on the grounds that Plaintiff had
failed to raise a genuine issue of material fact that Plaintiff’s supervisor, Brownfield, knew
that Plaintiff is German. The motion for summary judgment did not meaningfully address
that Plaintiff’s national origin discrimination claim also was based on her being NOT




                                              4
Hispanic.1 The district court granted summary judgment in HVPS’s favor, specifically
finding that Plaintiff’s national origin discrimination claim failed because Brownfield was
not aware of Plaintiff’s German national origin, and therefore Plaintiff’s national origin
“could not, as a matter of law, have been a motivating factor in the termination of her
employment.”

{13} This procedural history evinces an approach to litigation that we have repeatedly
criticized. We have held that “the principal function of pleadings is to give fair notice of the
claim asserted.” Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 12, 335 P.3d 1243
(quoting Malone v. Swift Fresh Meats Co., 1978-NMSC-007, ¶ 10, 91 N.M. 359, 574 P.2d
283). We also have emphasized “our policy of avoiding insistence on hypertechnical form
and exacting language.” Zamora, 2014-NMSC-035, ¶ 10. The record is clear that HVPS
understood the basis for Plaintiff’s claim from the beginning of this litigation—that she was
discriminated against because she is not Hispanic. Equally clear is that HVPS has never
argued that the New Mexico Human Rights Act permits discrimination between Hispanics
and non-Hispanics in the workplace. And rightly so; such an argument would be
preposterous. Cf., e.g., State ex rel. League of Women Voters of N.M. v. Advisory Comm. to
the N.M. Compilation Comm’n, 2017-NMSC-025, ¶¶ 25-34, 401 P.3d 734 (reviewing the
history of state constitutional provisions that prohibit discrimination against New Mexico’s
Spanish-speaking population with respect to voting and educational rights).

{14} HVPS’s argument, instead, has always been semantic: the discrimination alleged by
Plaintiff is based on “ethnic characteristics” and therefore does not amount to racial or
national origin discrimination. Notably, the NMHRA does not explicitly prohibit
discrimination based on one’s ethnicity or “ethnic characteristics.” See § 28-1-7(A)
(prohibiting discrimination based on “race, age, religion, color, national origin, ancestry, sex,
physical or mental handicap or serious medical condition”). We therefore suspect that
HVPS would have made similar arguments had Plaintiff based her claims on her color or
ancestry; for example, that Whites and Hispanics are both the same color, or that being
White and of Caucasian descent are not proper descriptors of one’s ancestry. HVPS does
not identify which of the remaining classes protected under the NMHRA—if any—could
bear the weight of Plaintiff’s claim.

{15} HVPS’s semantic attacks on Plaintiff’s claims embody the “technical niceties or
procedural booby traps New Mexico left behind more than seventy years ago.” Zamora,
2014-NMSC-035, ¶ 14 (internal quotation marks omitted). Unfortunately, its strategy


        1
         HVPS argues for the first time on appeal that Plaintiff similarly failed to introduce
admissible evidence that Brownfield was aware that Plaintiff is not Hispanic or perceived
Plaintiff as not Hispanic. HVPS did not make this argument in the district court, and we
therefore decline to address it on appeal. See Juneau, 2006-NMSC-002, ¶ 12 (“Not having
requested or received a ruling on the question of protected activity, [the defendant] failed to
preserve any such challenge for consideration by this Court.”).

                                               5
succeeded and led to the addition of an allegation that was used as a basis for dismissing her
lawsuit. Had Plaintiff’s Germanic origins been at the root of her discrimination claim,
perhaps summary judgment for HVPS would have been appropriate based on Brownfield’s
asserted lack of knowledge that Plaintiff is German. See, e.g., Kruger v. Cogent Commc’ns,
Inc., 174 F. Supp. 3d 75, 82-83 (D.D.C. 2016) (denying a motion to dismiss a claim for
national origin discrimination because the complaint alleged that plaintiff’s supervisor made
statements and references to the plaintiff’s German last name and referred to the plaintiff as
a “Nazi”). But to allow HVPS to avoid a jury trial by sidestepping Plaintiff’s primary theory
of liability—that her employment was terminated because she is not Hispanic—would
elevate form over substance. By its own admission, HVPS had adequate notice of the actual
basis of Plaintiff’s discrimination claim from the beginning of the lawsuit. See, e.g., Salas
v. Wisc. Dep’t of Corrs., 493 F.3d 913, 923 (7th Cir. 2007) (holding that the plaintiff’s
national origin claim based upon being Hispanic did not deprive the employer “of notice or
otherwise hamper its ability to defend the claim”). We therefore focus on the gravamen of
Plaintiff’s complaint, that she was subjected to national origin discrimination because she
is not Hispanic.

B.     Plaintiff May Claim Discrimination Under the NMHRA as a Non-Hispanic

{16} We turn to HVPS’s argument that the Court of Appeals improperly analyzed
Plaintiff’s national origin discrimination claim as a racial discrimination claim. Based on
our review of the NMHRA, Title VII, and the federal courts’ inconsistent interpretations of
national origin and racial discrimination under Title VII, we hold that the distinction is
immaterial in this case when Plaintiff has consistently claimed that HVPS discriminated
against her because she is not Hispanic.

{17} We have not addressed the precise contours of national origin discrimination under
the NMHRA and whether it encompasses discrimination against a person who is Hispanic
or non-Hispanic. But cf. Gonzales v. N.M. Dep’t of Health, 2000-NMSC-029, ¶¶ 1, 11, 129
N.M. 586, 11 P.3d 550 (noting that the jury had found against the plaintiff on her
discrimination claim based on her “Hispanic national origin”). In considering the issue, we
look for guidance to interpretations of federal employment discrimination law under Title
VII. See Smith, 1990-NMSC-020, ¶ 9 (looking to federal interpretation of the Civil Rights
Act of 1964 for “guidance for proving a violation of the [NMHRA]”). We emphasize that
interpretations of federal law are merely persuasive and that we analyze claims under the
NMHRA based upon the statute and our interpretation of the Legislature’s intent. See id.

{18} Both the NMHRA and Title VII prohibit discrimination based on a number of traits,
including national origin. See § 28-1-7(A) (prohibiting discrimination on the basis of a
person’s “race, age, religion, color, national origin, ancestry, sex, physical or mental
handicap or serious medical condition,” as well as a person’s spousal affiliation, sexual
orientation, or gender identity in certain circumstances); 42 U.S.C. § 2000e-2(a) (2012)
(prohibiting discrimination based upon a person’s “race, color, religion, sex, or national
origin”). Neither law defines national origin or national origin discrimination. See generally

                                              6
NMSA 1978, § 28-1-2 (2007) (defining certain terms as used in the NMHRA); 42 U.S.C.
§ 2000e (defining certain terms used in Title VII). Similarly, neither law defines the related
terms “race,” “color,” or “ancestry,” or discrimination based on those characteristics.2

{19} The EEOC, as the executive agency charged with enforcing Title VII, has defined
the term “national origin discrimination” for its purposes as discrimination based on (1) the
place of origin of a person or a person’s ancestors, or (2) the “physical, cultural[,] or
linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1 (2017) (“The
[Equal Employment Opportunity] Commission defines national origin discrimination
broadly as including, but not limited to, the denial of equal employment opportunity because
of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national origin group.”). Discrimination
against a Hispanic or non-Hispanic person thus would fall squarely under the second prong
of the EEOC’s definition as unequal treatment based on the person’s “national origin group.”
See U.S. Equal Emp’t Opportunity Comm’n, No. 915.005, EEOC Enforcement Guidance
on National Origin Discrimination, § II(B) (2016) (“National origin discrimination also
includes discrimination against a person because she does not belong to a particular ethnic
group, such as less favorable treatment of employees who are not Hispanic.”).

{20} The EEOC’s interpretation of Title VII, however, is merely persuasive. See Vill. of
Freeport v. Barrella, 814 F.3d 594, 607 n.47 (2d Cir. 2016) (“[T]he EEOC’s interpretation
is entitled at most to so-called Skidmore deference—i.e., ‘deference to the extent it has the
power to persuade.’” (quoting Townsend v. Benjamin Enters., 679 F.3d 41, 53 (2d Cir.
2012)). The lack of a controlling definition has resulted in divergent views in the federal
courts about the boundary between discrimination based on national origin and
discrimination based on race. See, e.g., Salas, 493 F.3d at 923 (“In the federal courts, there
is uncertainty about what constitutes race versus national origin discrimination under Title
VII.”).

{21} With regard to the specific issue of discrimination against Hispanics and non-
Hispanics under Title VII, federal courts agree that such discrimination is prohibited, but
they often struggle to identify the source of that prohibition. See, e.g., Vill. of Freeport, 814
F.3d at 606 (“Title VII obviously affords a cause of action for discrimination based on
Hispanic ethnicity—but why?”). Some have held that discrimination against Hispanics and
non-Hispanics is based on race. See, e.g., id. at 607 (“[D]iscrimination based on ethnicity,
including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”).
Others have held that such discrimination is based on national origin. See, e.g., Salas, 493


        2
        The NMHRA includes ancestry in its list of protected characteristics. Title VII does
not. But see Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88-89 (1973) (noting that an earlier
version of Title VII included the term “ancestry” and that deletion of the term from the final
version of Title VII “was not intended as a material change, suggesting that the terms
‘national origin’ and ‘ancestry’ were considered synonymous” (citation omitted)).

                                               7
F.3d at 923 (“[A] plaintiff alleging that he is Hispanic sufficiently identifies his national
origin to survive summary judgment.”). And others simply avoid the question altogether.
See, e.g., Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459 (S.D.N.Y. 1998)
(“Whether being Hispanic constitutes a race or a national origin category is a semantic
distinction with historical implications not worthy of consideration here.”).

{22} The takeaway from these cases is that terms like race and national origin, as well as
related terms like ancestry and ethnicity, often overlap, even to the point of being factually
indistinguishable. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987)
(Brennan, J., concurring) (“[T]he line between discrimination based on ‘ancestry or ethnic
characteristics’ and discrimination based on ‘place or nation of . . . origin’ is not a bright
one. . . . Often, however, the two are identical as a factual matter: one was born in the nation
whose primary stock is one’s own ethnic group. Moreover, national origin claims have been
treated as ancestry or ethnicity claims in some circumstances. For example, in the Title VII
context, the terms overlap as a legal matter.” (first omission in original) (citations omitted)).

{23} We find this reasoning persuasive and conclude that the precise label that Plaintiff
chose to describe her claim is less important than her consistent allegations that she was
treated differently than her Hispanic coworkers because she is not Hispanic. As we already
have explained, HVPS does not argue that such discrimination is permitted under the
NMHRA. Whether denominated as discrimination based on her race, national origin,
ancestry, or any combination thereof, HVPS was fully apprised of the basis of her claim, and
that is all that we require. See Zamora, 2014-NMSC-035, ¶ 14 (holding that a complaint that
“highlighted the key facts and actors relevant to [the plaintiff’s] cause of action” and that
emphasized the main theory of liability “adequately informed [the defendant] of the general
nature of [the plaintiff’s] claim”); see also Salas, 493 F.3d at 923 (holding that the plaintiff’s
national origin claim based upon being Hispanic did not deprive the employer “of notice or
otherwise hamper its ability to defend the claim”).

C.      The Plain Language of the NMHRA Does Not Place a Heightened Evidentiary
        Burden on a Plaintiff in a So-Called “Reverse” Discrimination Case

{24} Before we turn to the merits of HVPS’s motion for summary judgment, we pause to
address the Court of Appeals’ significant detour into the issue of so-called “reverse”
discrimination under federal law, an issue that was not raised or briefed by the parties in the
district court or on appeal. See Garcia, 2016-NMCA-034, ¶¶ 16-43. In analyzing Plaintiff’s
claim of national origin discrimination, the Court took upon itself to answer whether the
NMHRA and our caselaw place a higher evidentiary burden on a plaintiff who does not
“belong[] to a racial minority.” Id. ¶¶ 17-18. After a detailed review of the various
approaches taken by federal courts, the Court of Appeals concluded that a consistent
standard for “both discrimination and reverse discrimination plaintiffs . . . reflects the
purpose and philosophy behind Title VII as expressed by the United States Supreme Court.”
Id. ¶¶ 19-43. The Court therefore held that it would “analyze a reverse discrimination claim
as [it] would [analyze] any racial discrimination claim.” Id. ¶ 43.

                                                8
{25} We expressly disavow any reliance on reverse discrimination cases in analyzing a
claim under the NMHRA. The plain language of the NMHRA does not distinguish between
particular “race[s], age[s], religion[s], color[s], national origin[s], ancestr[ies], sex[es],
physical or mental handicap[s] or serious medical condition[s].” Section 28-1-7(A); but see
Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, ¶ 18, 124 N.M. 633,
954 P.2d 65 (holding that “40 years old marks the minimum age in the protected age class
in cases of employment discrimination under the [NMHRA]”). The NMHRA, simply and
clearly, prohibits unlawful discrimination based on the traits declared by the Legislature to
be worthy of protection. Accord McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,
278-79 (1976) (holding that Title VII’s “terms are not limited to discrimination against
members of any particular race” and thus prohibit “[d]iscriminatory preference for any
[racial] group, minority or majority” (alterations in original) (quoting Griggs v. Duke Power
Co., 401 U.S. 424, 431 (1971)); Lind v. City of Battle Creek, 681 N.W.2d 334, 334-35
(Mich. 2004) (holding that the language of the Michigan Civil Rights Act “draws no
distinctions between individual plaintiffs on account of race,” and therefore a “majority”
plaintiff need not present more evidence than a “minority” plaintiff to prevail on a
discrimination claim (internal quotation marks and citation omitted)). Therefore, under the
plain language of the NMHRA, its protections and requirements apply equally to all
plaintiffs, regardless of their minority or majority status. See Sims v. Sims, 1996-NMSC-
078, ¶ 22, 122 N.M. 618, 930 P.2d 153 (“[T]he courts will not add to such a statutory
enactment, by judicial decision, words which were omitted by the legislature.” (quoting State
ex rel. Miera v. Chavez, 1962-NMSC-097, ¶ 7, 70 N.M. 289, 373 P.2d 533)).

D.     Summary Judgment Was Appropriate in this Case

{26} The final question in this appeal is whether Plaintiff came forward with sufficient
evidence to survive HVPS’s motion for summary judgment. The Court of Appeals reversed
the district court’s grant of summary judgment in HVPS’s favor, citing evidence that one of
Plaintiff’s coworkers had complained to another HVPS employee—who was not Plaintiff’s
supervisor—about a Hispanic coworker who had a dirty bus. See Garcia, 2016-NMCA-034,
¶¶ 47-48. For reasons that will become clear below, this evidence was insufficient to create
a genuine issue of material fact about whether HVPS intentionally discriminated against
Plaintiff when it terminated her employment. The question we therefore must answer is
whether Plaintiff’s other evidence was sufficient to survive HVPS’s motion for summary
judgment.

{27}   The standard for summary judgment is well-established:

       Summary judgment is appropriate where there are no genuine issues of
       material fact and the movant is entitled to judgment as a matter of law.
       Where reasonable minds will not differ as to an issue of material fact, the
       court may properly grant summary judgment. All reasonable inferences are
       construed in favor of the non-moving party.


                                              9
Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (quoting
Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971).
Before we apply this standard, we must look to the substantive law governing the dispute
because it is the filter through which we must determine whether genuine issues of material
fact exist. See Romero, 2010-NMSC-035, ¶ 11 (quoting Farmington Police Officers Ass’n
v City of Farmington, 2006-NMCA-077, ¶ 17, 139 N.M. 750, 137 P.3d 1204).

{28} Plaintiff has not offered direct evidence of intentional discrimination, so we apply
the burden-shifting methodology that we approved in Smith for analyzing a discrimination
claim based upon indirect evidence. See 1990-NMSC-020, ¶ 10-11. Under Smith, a plaintiff
first must establish a prima facie case of discrimination, which creates a presumption that
discrimination has occurred. See id. ¶¶ 9 n.1, 11. The defendant then may rebut the
presumption by producing evidence that “the plaintiff was dismissed based on a
nondiscriminatory motivation.” Id. Once rebutted, the presumption of discrimination “drops
from the case.” Bovee v. State Highway & Transp. Dep’t, 2003-NMCA-025, ¶ 14, 133 N.M.
519, 65 P.3d 254 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983)). The plaintiff may then offer evidence that the employer’s proffered
nondiscriminatory reason was “pretextual or otherwise inadequate.” Juneau, 2006-NMSC-
002, ¶ 9.

1.     Plaintiff Did Not Establish a Prima Facie Case of Discrimination

{29} In Smith, we stated a formulation of the prima facie case for termination under which
the plaintiff must show that (1) she is a member of a protected class, (2) she was qualified
to continue in her position, (3) her employment was terminated, and (4) “[her] position was
filled by someone not a member of the protected class.” Id. ¶ 11. Smith also clarified that
a prima facie case could be established “through other means” when a plaintiff cannot
demonstrate that she was replaced by someone not in the protected class. Id. In that
circumstance, we held that a plaintiff could satisfy the fourth element of the prima facie case
with evidence that “[she] was dismissed purportedly for misconduct nearly identical to that
engaged in by one outside of the protected class who was nonetheless retained.” 1990-
NMSC-020, ¶ 11.

{30} Smith thus recognized that the prima facie case “was not intended to be an inflexible
rule.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978). “The facts necessarily
will vary in Title VII cases, and the specification of the prima facie proof required from [a]
respondent is not necessarily applicable in every respect to differing factual situations.” Id.
at 575-76 (alterations omitted) (quoting McDonnell Douglas Corp., 411 U.S. at 802 n.13).
The purpose of the prima facie case is to permit an inference of discrimination by ruling out
“the most common nondiscriminatory reasons for the plaintiff’s [discriminatory treatment].”
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). The “prima facie
case ‘raises an inference of discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of impermissible factors.’”
Id. at 254 (quoting Furnco, 438 U.S. at 577).

                                              10
{31} In a claim alleging discriminatory termination, the requirements that we approved
in Smith were intended to rule out “the most common nondiscriminatory reasons for the
plaintiff’s [termination]” under the circumstances of a particular case. Burdine, 450 U.S. at
253-54. In this case, Plaintiff alleged in her complaint that Brownfield notified her that her
contract would not be renewed because of her “performance.” Therefore, under the
circumstances of this case, the fourth element of the prima facie case must be modified to
permit Plaintiff to show that “[she] was dismissed purportedly for [performance] nearly
identical to [the performance of] one outside of the protected class who was nonetheless
retained.” See Smith, 1990-NMSC-020, ¶ 11. Without such a showing, an inference of
discrimination is not warranted because Plaintiff has not ruled out the most common
nondiscriminatory reasons for her termination, namely, that her performance was materially
different than the performance of her Hispanic coworkers.

{32} Plaintiff failed to come forward with evidence to establish the fourth element of the
prima facie case as modified above. Instead, Plaintiff proffered evidence purporting to show
that she was treated less favorably than her Hispanic coworkers in a variety of ways, some
of which were unrelated to her performance or termination. Plaintiff’s evidence consisted
of testimony about isolated instances of asserted unequal treatment with respect to various
Hispanic coworkers, including (1) the scheduling and assignment of bus routes, (2)
compensation for pre- and post-trip inspection time, (3) maintaining a clean bus, and (4)
enforcement of post-accident testing and suspension policies. None of this evidence
purported to show that one or more Hispanic employees’ performance was “nearly identical”
to Plaintiff’s performance as a whole. Smith, 1990-NMSC-020, ¶ 11. Plaintiff’s evidence
therefore is insufficient to rule out the most common nondiscriminatory reasons for the
termination of her employment.

{33} We do not mean to suggest that Plaintiff had to produce evidence of an employee
whose performance was a carbon copy of her own. Cf. Young v. United Parcel Serv., Inc.,
135 S. Ct. 1338, 1354 (2015) (noting that the prima facie case does not “require the plaintiff
to show that those whom the employer favored and those whom the employer disfavored
were similar in all but the protected ways”). But without some basis for meaningful
comparison of Plaintiff’s job performance with the performance of at least one Hispanic
employee, Plaintiff’s proffered evidence was insufficient to establish a prima facie case of
discriminatory termination. Put simply, Plaintiff’s evidence does not support an inference
that HVPS terminated her employment because she is not Hispanic.

2.     HVPS’s Asserted Nondiscriminatory Reason

{34} Even if we were to assume that Plaintiff established a prima facie case of
discrimination, her claim would not survive HVPS’s motion for summary judgment. See
Cates, 1998-NMSC-002, ¶¶ 21, 25-26 (affirming summary judgment in favor of employer
on age discrimination claim when the plaintiff failed to establish a prima facie case of
discrimination and failed to show that the employer’s reason for laying him off was
pretextual). HVPS met its burden to produce evidence of a nondiscriminatory reason for

                                             11
terminating Plaintiff’s employment, and Plaintiff’s evidence did not tend to show that
HVPS’s asserted reason for terminating her employment was pretextual or “merely an
excuse to cover up illegal conduct.” Juneau, 2006-NMSC-002, ¶ 23.

{35} HVPS came forward with extensive evidence of its nondiscriminatory reason for
terminating Plaintiff’s employment. To start, HVPS offered Brownfield’s explanation by
affidavit that she had been the Transportation Director for HVPS from September 2008
through June 2010, that she had been Plaintiff’s direct supervisor, and that she had
recommended terminating Plaintiff’s employment due to “an unsatisfactory evaluation and
ongoing performance issues.” HVPS also produced Brownfield’s evaluation of Plaintiff for
the 2009-2010 school year, which showed that Plaintiff had fully “Met Competency” in only
five of the eleven areas that were evaluated. HVPS also produced documentation showing
that Plaintiff was an employee with less than three consecutive years of service and therefore
her employment was at-will and could be terminated “for any reason.” See NMSA 1978, §
22-10A-24(A) (2003) (providing that a local school board may terminate the employment
of an employee with fewer than three consecutive years of service “for any reason it deems
sufficient”); see also § 22-10A-24(D) (“A local school board or governing authority may not
terminate an employee who has been employed by a school district or state agency for three
consecutive years without just cause.”).

{36} HVPS also produced documentation maintained by Brownfield of a number of
performance-related incidents involving Plaintiff, dating from January of 2009 through
March of 2010. The documentation included (1) a warning for dropping off a student at a
different stop without proper authorization; (2) a warning for failing to use her flashers when
picking up students, permitting students to get on or off her bus at other than their designated
stops, and for failing to know her standards; (3) a notification that her bus had been flagged
by an inspector because the emergency windows were not functioning properly and because
she had failed to note the problem on her pre/post trip ticket; (4) a warning for backing into
another bus at a fueling station; (5) a warning for hitting and uprooting a rail in an
elementary school parking lot; (6) two notes alerting Plaintiff that her buses were dirty, one
of which stated that her mirrors were a safety hazard; and (7) documentation about a
grievance against Plaintiff that had been filed by another bus driver because Plaintiff had
told other employees that she had found prescription painkillers in the driver’s desk.

3.      Plaintiff’s Evidence of Pretext

{37} Thus, assuming that Plaintiff established a prima facie case, HVPS clearly met its
burden to come forward with evidence of a nondiscriminatory reason for terminating her
employment. As a result, the presumption of discrimination created by the prima facie case
“drops from the case,” Bovee, 2003-NMCA-025, ¶ 14 (quoting Aikens, 460 U.S. at 715), and
Plaintiff may offer evidence that the employer’s proffered nondiscriminatory reason was
“pretextual or otherwise inadequate.” Juneau, 2006-NMSC-002, ¶ 9. The question of
pretext is “largely a credibility issue and . . . should normally be left exclusively to the
province of the jury.” Id. ¶ 23.

                                              12
{38} In this case, however, Plaintiff’s evidence did not show that HVPS’s asserted reason
for terminating her employment was pretextual or “merely an excuse to cover up illegal
conduct.” Id. To the contrary, HVPS’s proffered evidence further demonstrated that
Plaintiff did not identify a single employee whose performance was “nearly identical” so as
to permit an inference of a discriminatory motive. Smith, 1990-NMSC-020, ¶ 11; see also
Juneau, 2006-NMSC-002, ¶ 25 (noting that the plaintiff’s evidence to show causation in the
prima facie case and pretext may be the same). Plaintiff did not identify a single Hispanic
employee who was retained despite (1) having a similar history of documented performance
issues, (2) receiving a similar evaluation, or (3) being terminable at-will. Thus, the
inadequacy of Plaintiff’s evidence of other employees’ performance was only exacerbated
by HVPS’s evidence to support its decision to terminate Plaintiff’s employment.

{39} Plaintiff’s remaining evidence that HVPS’s asserted reason was pretextual consisted
of (1) the fact that none of Plaintiff’s marks on her evaluation were actually
“Unsatisfactory”; rather, five were “Meets Competency,” four were “Needs Improvement,”
and two were “Meets Competency/Needs Improvement”; (2) testimony by fellow employees
who were surprised when Plaintiff’s contract was not renewed; (3) testimony by fellow
employees that Plaintiff was doing more activity trips than any other driver, including
eighteen trips the month before she received notice that her contract would not be renewed;
and (4) testimony by a fellow employee that Plaintiff had been sent for special training. This
evidence may support an inference that Plaintiff’s termination was unexpected, but it does
not support an inference that her employment was terminated because she is not Hispanic.

{40} In our view, the following exchange with Plaintiff during her deposition both sums
up her claim and demonstrates why summary judgment was appropriate:

       Q:      Did anybody at the Hatch Schools ever say that they were taking
               away your bus routes because you were not Hispanic?

       A:      Nobody is going to say that to me. But because I wasn’t Hispanic, I
               was treated way different.

       Q:      Well, if — why do you think that? Is it just because that you’re the
               only non-Hispanic one there, or did somebody ever actually say
               something to you because you’re non-Hispanic that you’re not given
               a route?

       A:      I’m the one that’s white, I had to go for drug and alcohol tests.
               Everybody there that’s Hispanic that hit the barn or hit the railing or
               hit a cement mixer or anything, they never went for a drug and
               alcohol test. Every other bus driver that’s Hispanic knew exactly
               when the trips out of town they were going to take, they could
               prepare for that. I’m white, huh, I wasn’t given that opportunity. It
               would have been nice to know. At that time we were living in

                                             13
              Radium Springs, it would have been really nice to know that I had to
              go out of town where I could get whatever I needed from my house.
              There was times that I went to Family Dollar or something so I could
              get something because I had to go on a trip. I didn’t have time to go
              all the way back to my house to get something to go on a trip because
              Vickie refused to ask me. She would not ask me, not even when I
              would sit there and tell her, That trip is in two or three days, go ahead
              and put my name up there, I’ll take it. Oh, I’m not that far yet. I’m
              not that far yet.

{41} We do not doubt the sincerity of Plaintiff’s testimony. But “[t]he NMHRA protects
against discriminatory treatment, not against general claims of employer unfairness.”
Juneau, 2006-NMSC-002, ¶ 14. Plaintiff’s evidence does not raise a genuine issue of
material fact that her non-Hispanic national origin was a motivating factor in HVPS’s
decision to terminate her employment. See Smith, 1990-NMSC-020, ¶ 9 n.1 (explaining that
once the employer comes forward with evidence of a nondiscriminatory reason, the
plaintiff’s burden of establishing pretext “merges with the plaintiff’s ultimate burden of
proof of intentional discrimination” (citing Burdine, 450 U.S. at 256)).

III.   CONCLUSION

{42} We reverse the Court of Appeals and remand for further proceedings consistent with
this opinion.

{43}   IT IS SO ORDERED.

                                              ____________________________________
                                              PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice



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