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


 2 ULRIKE M. WEST,

 3          Plaintiff-Appellant,

 4 v.                                                                              NO. 32,037

 5 NEW MEXICO TAXATION
 6 & REVENUE DEPARTMENT
 7 and PHILLIP SALAZAR,

 8          Defendants-Appellees.


 9 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
10 Manuel I. Arrieta, District Judge


11 Law Offices of Paul M. Gayle-Smith
12 Paul M. Gayle-Smith
13 Las Cruces, NM

14 for Appellant

15   Miller Stratvert, P.A.
16   Paula G. Maynes
17   Luke A. Salganek
18   Santa Fe, NM

19 for Appellees
 1                            MEMORANDUM OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   Plaintiff Ulrike West, a tax auditor, sued the New Mexico Taxation and

 4 Revenue Department and Phillip Salazar, the Director of the Audit & Compliance

 5 Division (collectively, Defendants) for violations of the New Mexico Human Rights

 6 Act (NMHRA) and the United States Constitution. West alleged that she suffered

 7 harassment or retaliatory action from her employer, New Mexico Taxation and

 8 Revenue Department (Department), due to her needs for accommodation for a medical

 9 condition. The case was removed to federal district court where Defendants won

10 summary judgment and was then remanded to a state district court for action on

11 remaining state claims. The state district court granted Defendants’ motion for

12 summary judgment and dismissed the case. West appealed, claiming that the state

13 court erroneously relied on the federal decision and that she had properly disputed

14 some of the facts, among a myriad of other issues. We determine that the state district

15 court did not err in granting summary judgment and affirm.

16 I.      BACKGROUND

17   {2}   West worked as a field auditor for the Department. After she was hired, she

18 was diagnosed with Relapsing Remitting Multiple Sclerosis. The Department made

19 her an audit reviewer, which required less travel. West had to travel from Las Cruces

20 to Albuquerque a few times a year for meetings. Her supervisor permitted her to drive

                                              2
 1 her own vehicle on these trips until 2007. At that time, the Department changed its

 2 policy to prohibit reimbursement for mileage driven in private vehicles. In October

 3 2007, West requested the accommodation of driving her personal, ergonomically-

 4 appropriate vehicle for work. In October 2007, Defendants sent a form to West’s

 5 physician requesting an Americans with Disabilities Act (ADA) physician’s

 6 statement. In late January 2008, they received a statement in response. The form,

 7 filled out by West’s treating physician, stated that with or without a reasonable

 8 accommodation, she was unable to travel long distances, as well as stating in response

 9 to another question that she was able to travel long distances if given an

10 accommodation.       The parties contest whether this document was facially

11 “contradictory” in describing West’s needed accommodations. Defendants requested

12 clarification from the physician when they did not receive a response from West. Six

13 months later, Defendants received clarification. Defendants later determined that the

14 travel requirements did not apply to West, as she was in a senior position, and her

15 requests to drive her own vehicle would be approved on a case-by-case basis.

16 Throughout the process of requesting clarification, West was never required to travel

17 for work and therefore was never denied her requested accommodation. West’s

18 ability to drive her own car on the case-by-case basis was never tested or questioned.




                                             3
 1   {3}   West filed three complaints with the Equal Employment Opportunity

 2 Commission (EEOC). The first was in December 2007, which was settled. One day

 3 after Defendants received clarification from West’s physician in April 2008, she filed

 4 her second EEOC complaint, alleging that the request for clarification constituted

 5 harassment and retaliation for her 2007 complaint. West informed the Department in

 6 June 2008 that her physician said that she could only work five hours a day.

 7 Defendants interpreted this as a request to convert her full-time employment into part-

 8 time employment. The Department denied the request, stating that such a change

 9 would not allow her to perform the essential functions of a full-time job, but in fact

10 accommodated her by granting that she could have a temporary part-time schedule

11 that would be reviewed after three months. In October 2008, West was informed by

12 her physician that her multiple sclerosis had progressed to the point where it precluded

13 employment entirely, and she left the Department. In September 2009, West was

14 administratively “separated without prejudice” from her employment by the

15 Department under 1.7.10.13(B)(1) NMAC, which she did not appeal.

16   {4}   In April 2009, West sued Defendants in the state district court under the ADA

17 and for various civil rights violations. The case was removed to federal district court.

18 The federal district court granted summary judgment in favor of Defendants,

19 dismissing the federal claims and remanding the remaining state law claims.



                                              4
 1   {5}   In May 2010, West submitted a third EEOC charge of discrimination, alleging

 2 wrongful discharge and claiming that the real reason she could not work was hostility

 3 and delays in response to her requests. After the federal district court’s decision, in

 4 December 2010, West amended the charge of discrimination to include denial of

 5 reasonable accommodations and various allegations of delays, wrongful termination

 6 based on her disability and requests for accommodation, and a claim that she was

 7 forced to leave solely due to the stress caused by the delays and denials.

 8   {6}   Defendants moved for summary judgment on the sole basis of collateral

 9 estoppel, claiming that all the issues had already been fully litigated in federal district

10 court. The state court granted summary judgment in favor of Defendants, determining

11 that West had not properly exhausted all her claims and there were no disputed issues

12 of fact that warranted a trial on the merits, although stating nothing as to collateral

13 estoppel. West appealed, claiming that the state district court erroneously relied on

14 the federal district court’s decision and that she had raised issues of disputed fact. We

15 disagree for the reasons that follow.

16 II.     DISCUSSION

17   {7}   “Summary judgment is appropriate where there are no genuine issues of

18 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

19 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review

20 these legal questions de novo.” Id. “On appeal from the grant of summary judgment,

                                                5
 1 we ordinarily review the whole record in the light most favorable to the party

 2 opposing summary judgment to determine if there is any evidence that places a

 3 genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects

 4 & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if

 5 no material issues of fact are in dispute and an appeal presents only a question of law,

 6 we apply de novo review and are not required to view the appeal in the light most

 7 favorable to the party opposing summary judgment.” Id. A party opposing summary

 8 judgment may not simply argue that evidentiary facts requiring a trial on the merits

 9 may exist, “nor may [a party] rest upon the allegations of the complaint.” Dow v.

10 Chilili Coop. Ass’n, 1986-NMSC-084, ¶ 13, 105 N.M. 52, 728 P.2d 462. We review

11 West’s numerous arguments in turn.

12 A.      The State District Court Did Not Erroneously Adopt the Federal District
13         Court’s Findings

14   {8}   West’s first argument is that the state district court erroneously relied on the

15 federal district court’s findings in its order for summary judgment, citing authority

16 that merely states the differing standards for summary judgment in state versus federal

17 courts. She points us to one part of the state’s order for summary judgment where it

18 references the federal order. Her argument is unpersuasive and ignores the fact that

19 the state district court independently evaluated the case.




                                               6
 1   {9}    In the finding that West focuses on, the state district court stated that a form

 2 from West’s physician that described her required accommodations was “facially

 3 contradictory.” The federal district court had concluded the same. The form in

 4 question, which stated both that she could travel long distances with accommodation

 5 and she could not travel long distances, was presented to the state court as an

 6 attachment to the motion for summary judgment. In their motion for summary

 7 judgment, Defendants describe the form as “facially contradictory.” West does not

 8 describe how finding the document contradictory undermines her case. We agree that

 9 it is contradictory and see no need to rely on the federal district court to come to that

10 conclusion. It is entirely reasonable for the state district court to have independently

11 come to the same conclusion as well based on the same evidence. Whether or not the

12 document was contradictory is secondary to its effect on the determination of whether

13 accommodation of West’s condition was possible. The effect supports the state

14 district court’s conclusion that West suffered no consequences from a delay her

15 physician caused. West supplies us with nothing else to suggest that the state district

16 court failed to make its own rulings.

17 B.       The State District Court Did Not Make Findings Regarding Disputed Facts

18   {10}   We have stated that a state district court is not required to make findings of fact

19 in an order for summary judgment. Durham v. Sw. Developers Joint Venture, 2000-

20 NMCA-010, ¶ 45, 128 N.M. 648, 996 P.2d 911 (“In ruling upon a motion for

                                                 7
 1 summary judgment, it is not necessary for the court to adopt findings of fact and

 2 conclusions of law because the basic premise underlying an award of summary

 3 judgment is the absence of any genuine issue of material fact.”). However, in this

 4 case, although the state district court confusingly referred to part of its decision as

 5 “Findings of Fact,” West fails to identify any of these findings as disputed. Thus, no

 6 error resulted.

 7   {11}   West argues specifically that the finding that she had not suffered any damages

 8 from the alleged delay in accommodating any hypothetical need to travel was

 9 unsupported by anything in Defendants’ motion for summary judgment. The state

10 district court stated in its order that no harm from the delay occurred because the

11 request was for travel accommodations, and no travel was required of West during the

12 time that she waited for approval. No party disputes the fact that West was not

13 required to travel during this time. Although West claims that she “provided

14 substantial evidence” to show that she had suffered medical harm from Defendants’

15 delays, she cites to no part of the record containing such support. Where a party fails

16 to cite any portion of the record to support its factual allegations, the Court need not

17 consider its argument on appeal. See Santa Fe Exploration Co. v. Oil Conservation

18 Comm’n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819. To the extent that she

19 refers to the record at all, it is to Defendants’ proposed findings of fact, which contain

20 nothing that refers to any harm, medical or otherwise, West may have experienced.

                                               8
 1 C.       The State District Court Did Not Fail to Make All Reasonable Inferences
 2          in Favor of West

 3   {12}   West next claims that the state district court erred by failing to make

 4 “reasonable inferences” in her favor, as she was the party opposing Defendant’s

 5 motion for summary judgment. “When reviewing a grant of summary judgment, we

 6 view the evidence in the light most favorable to support the right to a trial on the

 7 merits, and we make all reasonable inferences in favor of the party opposing the

 8 summary judgment.” Sarracino v. Martinez, 1994-NMCA-013, ¶ 4, 117 N.M. 193,

 9 870 P.2d 155. “On appeal from the grant of summary judgment, we ordinarily review

10 the whole record in the light most favorable to the party opposing summary judgment

11 to determine if there is any evidence that places a genuine issue of material fact in

12 dispute.” BPLW Architects, 2009-NMCA-081, ¶ 7.

13   {13}   West points to a few of the state district court’s statements in the order for

14 summary judgment—the conclusion that her physician’s statement was “facially

15 contradictory” and the travel requirements of her job. Although she claims that she

16 submitted documents that disputed both conclusions, she fails to point us to their

17 location in the record. Again, where a party fails to cite any portion of the record to

18 support its factual allegations, the court need not consider its argument on appeal.

19 Santa Fe Exploration, 1992-NMSC-044 , ¶ 11. West also claims that the state court

20 made erroneous legal rulings by refusing to consider a later explanation of her request.


                                               9
 1 The state district court is only required to make factual inferences in her favor. In the

 2 absence of contrary or disputed facts, she also fails to cite any authority that

 3 contradicts the court’s legal conclusion. When facts are undisputed, requesting a

 4 contrary inference without legal authority is not possible. The state district court

 5 found that Defendants had not failed to accommodate West, and she had not

 6 exhausted her remedies for her later EEOC claims. We find nothing in the record to

 7 contradict that conclusion from the undisputed facts of the case.

 8 D.       West Failed to Exhaust All Her Remedies

 9   {14}   Two sets of EEOC claims are at issue. The first is from 2008, and the second

10 from 2010. West claims that she properly exhausted her claims for failure to

11 accommodate and hostile work environment when she filed them in the 2008 charge.

12 Defendants argue that they were not exhausted because the 2008 charge was actually

13 for disability discrimination and retaliation and, therefore, any hostile work

14 environment claim and failure to accommodate claim was not properly raised to the

15 EEOC. The state district court determined that the 2008 EEOC complaint failed to

16 demonstrate that the request for clarifying information from the physician was an

17 adverse employment action. West fails to otherwise raise any issue of fact that she

18 suffered an adverse employment action as a result of the request for clarification.

19   {15}   The state district court determined that West’s 2010 charges—both the original

20 and the amended—were untimely and did not exhaust the administrative process. It

                                              10
 1 also determined that those claims, based on failure to accommodate, failed to establish

 2 adverse action because her requests were not denied. The conduct complained of in

 3 an EEOC complaint “shall be filed with the division within three hundred days after

 4 the alleged act was committed.” NMSA 1978, § 28-1-10(A) (2005). Although West

 5 claims that the May 2010 charge was undisputedly timely filed, she points us to no

 6 evidence that disputes the state district court’s conclusion that the May 2010 charge

 7 was predicated on actions in 2007 and 2008. Because that places the claim and its

 8 amendment outside of the three-hundred-day limit required by statute, we conclude

 9 that the state district court did not err in finding that West failed to exhaust those

10 claims through administrative procedures.

11 E.       The State District Court Did Not Err in Concluding that West Failed to
12          Present Evidence of Hostile Work Environment

13   {16}   Under federal law and the NMHRA, a hostile work environment results “when

14 the offensive conduct becomes so severe and pervasive that it alters the conditions of

15 employment in such a manner that the workplace is transformed into a hostile and

16 abusive environment for the employee.” Ocana v. Am. Furniture Co., 2004-NMSC-

17 018, ¶ 24, 135 N.M. 539, 91 P.3d 58. We look at the totality of the circumstances,

18 which include “frequency of the discriminatory conduct; its severity; whether it is

19 physically threatening or humiliating, or a mere offensive utterance; and whether it

20 unreasonably interferes with an employee’s work performance.”             Id. (internal


                                             11
 1 quotation marks and citation omitted). The offensiveness must be both objective and

 2 subjective. Id.

 3   {17}   Although West claims that she presented genuine factual disputes regarding her

 4 claims for failure to accommodate and hostile work environment, she again fails to

 5 expand on what facts were disputed, or how they address the elements required to

 6 constitute a hostile work environment claim. She states that she presented evidence

 7 that previously she could obtain accommodations more easily before a policy change

 8 at the Department. However, she presents no evidence that the policy change did not

 9 neutrally apply to all employees. Gonzales v. N.M. Dep’t of Health, 2000-NMSC-

10 029, ¶ 30, 129 N.M. 586, 11 P.3d 550 (“A plaintiff may establish a prima facie case

11 of disparate impact discrimination by showing that a specific identifiable employment

12 practice or policy caused a significant disparate impact on a protected group.”

13 (internal quotation marks and citation omitted)). In fact, West’s only citations are to

14 an attachment to her response to the motion for summary judgment, which is in fact

15 an excerpt from Defendants’ response to interrogatories and expresses conclusions

16 identical to the ones made by the state district court. West thus fails to produce any

17 evidence of disputed material facts; moreover, her citation is to undisputed facts found

18 by the state district court.

19 F.       The State District Court Did Not Err by Refusing to Find that West Was
20          Wrongfully Terminated


                                              12
 1   {18}   West argues that she was wrongly terminated from her job. She claims that,

 2 under a section of the New Mexico Administrative Code, the Department should have

 3 made all efforts to accommodate her, and she claims that her offered testimony

 4 disputed whether they made such efforts. 1.7.10.13(A) NMAC. First, we note that

 5 the regulation she relies on deals with worker’s compensation and is not associated

 6 with a general claim for wrongful termination. West brought a claim for wrongful

 7 termination. In her briefing, she argues that she was wrongfully discharged as

 8 prohibited under the NMHRA.              Under the NMHRA, “[i]t is an unlawful

 9 discriminatory practice for . . . an employer . . . to discharge . . . any person otherwise

10 qualified because of . . . physical or mental handicap or serious medical condition[.]”

11 NMSA 1978, § 28-1-7(A) (2004). For the independent tort of wrongful discharge for

12 failure to accommodate, the plaintiff must show:

13                 (1) [T]he defendant knew of . . . the plaintiff’s serious medical
14          condition [or] physical or mental handicap;
15                 (2) [T]he plaintiff requested an accommodation;
16                 (3) A reasonable accommodation existed that would have
17          allowed . . . the plaintiff to perform the essential functions of the job
18          [and];
19                 (4) [T]he defendant failed to provide a reasonable
20          accommodation.

21 UJI 13-2307D NMRA (emphasis and use note omitted). West cites to her own

22 affidavit detailing her request for accommodation. She does not dispute the state




                                               13
 1 district court’s finding that she “voluntarily left” her employment, or the finding that

 2 the Department reasonably accommodated her. Thus, her argument necessarily fails.

 3 G.       Defendants Did Not Violate New Mexico Public Policy

 4   {19}   West next argues that her termination violated New Mexico public policy. Yet

 5 again, she claims that she has shown sufficient facts to link her complaints with

 6 adverse employment action. Although a violation of public policy may support a

 7 claim for retaliatory discharge, West fails to show what facts support her claim of a

 8 public policy basis for her claim. Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040,

 9 ¶ 10, 117 N.M. 441, 872 P.2d 859.

10 H.       The State District Court Did Not Err in Refusing to Conclude That West
11          Suffered an Adverse Employment Decision in Retaliation for Protected
12          Speech

13   {20}   West claims that she was terminated based on statements she made regarding

14 possible discrimination against her based on her disability and her complaints about

15 delays in responding to her requests for accommodation and, therefore, her First

16 Amendment rights were violated. Apart from claiming that her previous requests

17 were accommodated more quickly, West does not support her argument that the

18 delays were related to her previous requests. To the extent that she claims “it would

19 have been clear to everyone involved” that she needed accommodation in order to

20 perform her job, she does not address the fact that she was in fact accommodated, or

21 how this argument relates to her claim of retaliation for speech regarding possible

                                              14
 1 discrimination. In addition, the state district court concluded that she did not face

 2 adverse action because her requests were granted, and she suffered no harm for any

 3 delay. West does not dispute these findings.

 4   {21}   West cites several federal decisions that describe how the speech of a public

 5 employee may be protected by the First Amendment. See Chavez-Rodriguez v. City

 6 of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010) (“If an employee speaks as a citizen

 7 rather than pursuant to his official duties, the court must determine whether the subject

 8 of the speech is a matter of public concern.” (internal quotation marks and citation

 9 omitted)). However, under the federal test that she cites, West fails to carry her causal

10 burden of showing that her “speech was a substantial factor or a motivating factor in

11 a detrimental employment decision.” Id. at 713 (internal quotation marks and

12 citations omitted).      Regardless of whether it was clear that West required

13 accommodation because she fails to dispute the state district court’s finding that she

14 suffered no adverse action that could constitute the basis of her claim, we conclude

15 that the state district court did not err in granting summary judgment on her First

16 Amendment claim.

17 I.       West Failed to Exhaust Her Remedies Regarding Salazar

18   {22}   The state district court found that because Salazar was not listed on the 2008

19 or 2010 EEOC complaints, West failed to exhaust her administrative remedy as to

20 him. West maintains on appeal that she was not required to exhaust her claims

                                              15
 1 regarding Salazar because her First Amendment claims did not require a prior charge

 2 of discrimination. However, her First Amendment claims fail as discussed above.

 3 Therefore, we conclude that she did not exhaust her administrative claims with regards

 4 to him, and the state district court did not err in finding such failure to exhaust.

 5 J.       We Do Not Need to Consider the Issue of Collateral Estoppel

 6   {23}   Defendants argue that West’s claims are barred by collateral estoppel. In their

 7 motion for summary judgment, Defendants argued that West was collaterally estopped

 8 from relitigating some of her claims because the issues were fully litigated in federal

 9 district court. However, the state district court’s order for summary judgment

10 addressed the merits of the parties’ arguments, not collateral estoppel, and Defendants

11 prevailed. Because we affirm the grant of summary judgment on the merits, we need

12 not address collateral estoppel.

13 K.       West Was Not Permitted to Introduce Evidence of a Prior Settlement
14          Agreement

15   {24}   West argues that parts of a previous settlement agreement should have been

16 admissible. However, she once again fails to cite to any relevant facts in the record,

17 instead citing to her response to Defendants’ motion for summary judgment. Citing

18 conclusory statements in her own argument does not meet her burden to dispute issues

19 of fact that would preclude summary judgment. In the absence of any legal authority

20 or factual support, we consider this argument no further.


                                              16
1 III.     CONCLUSION

2   {25}   We affirm the state district court’s grant of summary judgment.

3   {26}   IT IS SO ORDERED.



4                                         ____________________________________
5                                         RODERICK T. KENNEDY, Chief Judge




                                            17
1 WE CONCUR:



2 ___________________________
3 JAMES J. WECHSLER, Judge



4 ___________________________
5 MICHAEL E. VIGIL, Judge




                                18
