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

 2 LARRY WEATHERWAX,

 3                  Plaintiff-Appellant,

 4 v.                                                                            No. A-1-CA-36164


 5 THE CITY OF ALAMOGORDO,

 6                  Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 James W. Counts, District Judge

 9 Davie, Valdez & McElroy, P.C.
10 Jeffery McElroy
11 El Paso, TX

12 for Appellant

13   Brennan & Sullivan, P.A.
14   Christina L. Brennan
15   James P. Sullivan
16   Santa Fe, NM

17 for Appellee

18                                 MEMORANDUM OPINION

19 HANISEE, Judge.
 1   {1}   Larry Weatherwax (Plaintiff) appeals from the district court’s order granting

 2 summary judgment in favor of City of Alamogordo (Defendant). We previously

 3 issued a notice of proposed summary disposition in which we proposed to reverse the

 4 district court’s decision. Defendant has filed a memorandum in opposition. After due

 5 consideration, we are unpersuaded. We therefore reverse.

 6   {2}   The pertinent background information was set forth in the notice of proposed

 7 summary disposition. We will avoid undue repetition here, and focus instead on the

 8 content of the memorandum in opposition.

 9   {3}   Defendant argues that our decision in Garcia v. Hatch Valley Public Schools,

10 2016-NMCA-034, 369 P.3d 1, should not apply retroactively so as to determine the

11 outcome of this appeal. [MIO 2-4] Civil decisions are presumed to apply retroactively

12 unless the opinion expressly directs otherwise or if there is a “sufficiently weighty

13 combination of one or more of the Chevron Oil factors.” Beavers v. Johnson Controls

14 World Servs., Inc, 1994-NMSC-094, ¶ 22, 118 N.M. 391, 881 P.2d 1376; see also

15 Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971), overruled on other grounds

16 by Harper v. Va. Dep’t of Taxation, 509 U.S. 86 (1993) (listing the Chevron Oil

17 factors). These factors are:

18         First, the decision to be applied nonretroactively must establish a new
19         principle of law, either by overruling clear past precedent on which
20         litigants must have relied, or by deciding an issue of first impression
21         whose resolution was not clearly foreshadowed[.] Second, we must

                                             2
 1        weigh the merits and demerits in each case by looking to the prior
 2        history of the rule in question, its purpose and effect, and whether
 3        retrospective operation will further or retard its operation. Finally,
 4        we . . . weigh[] the inequality imposed by retroactive application, for
 5        where a decision of this Court could produce substantial inequitable
 6        results if applied retroactively, there is ample basis in our cases for
 7        avoiding the injustice or hardship by a holding of nonretroactivity.

 8 Id. (internal quotation marks and citations omitted); Whenry v. Whenry, 1982-NMSC-

 9 067, ¶ 7, 98 N.M. 737, 652 P2d 1188 (same). Without providing a citation to

10 supporting authority, Defendant asserts that “[w]hen Plaintiff’s [c]omplaint was filed

11 and throughout the discovery in this case, the heightened standard applied to reverse

12 discrimination cases under the New Mexico Human Rights Act [(NMHRA)].” [MIO

13 3] We disagree. As we stated in Garcia, “For claims of unlawful discrimination [under

14 the NMHRA, our Supreme] Court has used the burden shifting methodology set forth

15 by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

16 792[.]” Garcia, 2016-NMCA-034, ¶ 8. Garcia merely reaffirmed the use of that

17 methodology, without overruling any controlling New Mexico precedent. Id., ¶ 43.

18 Garcia further commented that rejection of the heightened standard of proof in reverse

19 discrimination cases “is consistent with current United States Supreme Court

20 precedent” and further relied on New Mexico Supreme Court precedent holding that

21 “the first prong of a prima facie case of discrimination could be satisfied upon a

22 showing that the plaintiff is a member of [a] protected group.” Id. ¶¶ 39, 42 (internal


                                              3
 1 quotation marks and citation omitted). Therefore, while Garcia addressed an issue of

 2 first impression in New Mexico, we do not agree with Defendant’s bare assertion that

 3 its “resolution . . . was not clearly foreshadowed[.]” [MIO 3]

 4   {4}   As to the second and third factors, Defendant—without providing any

 5 supporting authority— argues that they weigh against retroactivity because “the effect

 6 of Garcia remains unclear[.]” [MIO 4] Specifically, Defendant argues that our

 7 Supreme Court has granted certiorari review, and therefore “it is presently unclear

 8 whether the standard articulated by [this Court] will remain the law.” [MIO 4]

 9 Defendant further asserts that it “remains unclear if Garcia, . . . [a reverse racial

10 discrimination case,] will be extended to reverse gender discrimination cases such as

11 the instant litigation.” [MIO 4] We are unpersuaded. Under the second factor, the

12 relevant inquiry is whether retroactivity will further Garcia’s clear aim of treating

13 historically advantaged plaintiffs equally with historically disadvantaged plaintiffs,

14 a question we answer in the affirmative; the fact that our Supreme Court has granted

15 certiorari review has no bearing on this inquiry. As to Defendant’s other point, Garcia

16 relied on a definition of “reverse discrimination” as “the practice of giving unfair

17 treatment to a group of people who have traditionally been privileged in an attempt

18 to be fair to the group of people unfairly treated in the past.” Id. ¶ 16 (quoting Black’s

19 Law Dictionary 567 (10th ed. 2014). That definition applies to reverse gender


                                               4
 1 discrimination claims, and we find nothing in Garcia to indicate that its holding was

 2 limited to reverse racial discrimination claims. For the same reasons, we fail to see

 3 how retroactive application of Garcia will result in “substantial inequitable results.”

 4 Beavers, 1994-NMSC-094, ¶ 23. Therefore, we hold that the presumption of

 5 retroactivity has not been overcome with respect to Garcia.

 6   {5}   In addition, Defendant argues that this Court should apply the right-for-any-

 7 reason doctrine and find that summary judgment was proper even under the usual

 8 McDonnell Douglas standard. [MIO 5] We decline to do so, however, because the

 9 district court did not rule upon Defendant’s motion to strike Plaintiff’s affidavit

10 submitted in response to Defendant’s motion for summary judgment. [RP 170, 189]

11 Defendant argued below that the affidavit “creat[ed] a sham issue of fact” [RP 171]

12 Clearly, the outcome of that motion would affect summary judgment under the proper

13 McDonnel Douglas standard. See, e.g., Self v. United Parcel Serv., Inc., 1998-NMSC-

14 046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (“Summary judgment is appropriate where there

15 are no genuine issues of material fact and the movant is entitled to judgment as a

16 matter of law.”). Further, we have previously held that, “[a]bsent a motion to strike

17 or an objection to affidavits on summary judgment, any formal defects in the

18 affidavits are deemed waived.” Reynolds v. Swigert, 1984-NMCA-086, ¶ 31, 102

19 N.M. 504, 697 P.2d 504. Reynolds demonstrates that there is a clear preference that


                                              5
1 such issues are to be determined by the district court. Therefore, we decline to address

2 the admissibility of Plaintiff’s affidavit for the first time on appeal or to apply the

3 right-for-any-reason doctrine under these circumstances.

4   {6}   Accordingly, for the reasons stated above and in the notice of proposed

5 summary disposition, we reverse.

6   {7}   IT IS SO ORDERED.

7                                                _____________________________
8                                                J. MILES HANISEE, Judge


9 WE CONCUR:



10 __________________________________
11 LINDA M. VANZI, Chief Judge



12 __________________________________
13 HENRY M. BOHNHOFF, Judge




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