                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                           November 5, 2013
                                      PUBLISH             Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 MICHAEL L. LOBATO,

             Plaintiff - Appellant,
       v.                                           No. 12-2128
 STATE OF NEW MEXICO
 ENVIRONMENT DEPARTMENT;
 ENVIRONMENTAL HEALTH
 DIVISION; CARLOS ROMERO;
 CHARLES LUNDSTROM;
 SOLOMON ROMERO; JOHN
 RHODERICK; DAVID TORRES;
 NORMAN NORVELLE; and JUDY
 BENTLEY,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 09-CV-01203-BB-ACT)


Repps D. Stanford (Christopher M. Moody with him on the briefs) Moody &
Warner, P.C., Albuquerque, New Mexico, for Appellant.

Bryan C. Garcia (Henry F. Narvaez with him on the brief) Narvaez Law Firm,
P.A., Albuquerque, New Mexico, for Appellees.


Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Michael Lobato was a probationary employee at the New Mexico

Environmental Department’s Farmington office. His status as a probationary

employee meant he could be fired at will and without a right to appeal the

decision, so long as the department’s reasons were provided in writing. Before

completing his probationary period, Lobato was fired. In a letter explaining its

decision, NMED cited Lobato’s dishonesty, failure to cooperate with

management, and unprofessional attitude toward coworkers and the public.

      Lobato, who is Hispanic and of Mexican ancestry, alleges that these

proffered rationales were pretextual and that NMED was in fact motivated by

racial and national origin prejudice. He also alleges NMED wanted to punish him

for whistleblowing. Thus, Lobato claims, the dismissal violated his rights under

Title VII, New Mexico’s civil rights and whistleblower laws, and the First

Amendment.

      The district court granted summary judgment to NMED on all claims, and

we agree with that decision. Lobato has failed to raise a genuine dispute that

NMED’s decision to terminate him was motivated by anything other than the

legitimate, nondiscriminatory reasons NMED offered in its termination letter.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.




                                        -2-
                                 I. Background

      A. Preliminaries

      On December 29, 2007, NMED hired Lobato as a probationary employee

for a position as an Environmental Scientist and Specialist in its office in

Farmington, New Mexico. His position concerned primarily the inspection of

food service providers, liquid waste systems, and public swimming pools.

Pursuant to the published State Personnel Board Rules governing NMED and its

staff, a probationary employee could be “suspended, demoted, or dismissed

effective immediately with written notice and without right of appeal to the

Board.” App. 90.

      Lobato’s direct supervisor when he began working at NMED was Salvadore

Misseri, the staff manager for the Farmington office, which was in District V.

Misseri reported to District V’s manager, Charles Lundstrom. In turn, Lundstrom

reported to Carlos Romero, the Director of NMED. Additionally, many of the

personnel matters relevant here were handled by the Chief of the NMED Human

Resources Bureau, Judy Bentley.

       B. Whistleblowing

      Around February 2008, Lobato observed irregularities in the way Misseri

conducted his duties at the Farmington office, and Lobato reported these




                                         -3-
irregularities to management. 1 For instance, he alleged that Misseri was giving

special privileges to certain contractors regulated by NMED in exchange for cash.

      Lobato’s allegations prompted NMED to place Misseri on paid

administrative leave, hire an independent private investigation firm to look into

the matter, and place Salomon Romero in charge of the Farmington office during

the investigation. 2 Eventually, as a result of the investigation, HR chief Bentley

gave Misseri a notice of contemplated termination, and Misseri resigned.

      C. Alleged Discrimination

      Lobato alleges that, on one occasion while he was at a job site with

Misseri, a contractor used a racial slur against Lobato. Misseri did nothing in

response, and when Lobato told Lundstrom about the encounter, Lundstrom made

light of the incident.

      Lobato further alleges that Lundstrom referred to him in derogatory terms

when speaking with other NMED employees and once called him a “f***ing

Mexican” to his face. Id. at 384. While NMED denies these allegations of racial

animus, it is undisputed that Lundstrom and Lobato had a strained relationship.




      1
         In reviewing the district court’s grant of summary judgment, we recite
the facts presented in the light most favorable to Lobato, the nonmoving party.
See Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1171 (10th Cir. 2013).
      2
      Nothing in the record indicates that Salomon and Carlos Romero,
NMED’s Director, were kin.

                                         -4-
      D. Conflict with Management

      In June 2008, Bentley began investigating numerous complaints involving

personnel in District V. As part of this investigation, she interviewed Lobato and

sent him a list of follow-up questions. Some of the questions focused on the

problems Lobato said he was having with Lundstrom. Others focused on

Lobato’s request to be reimbursed for a hotel stay when he had also turned in a

receipt for a breakfast purchased that next morning 300 miles from the hotel. In a

series of emails and phone calls, Lobato repeatedly promised to answer Bentley’s

questions, but he never did—even after Bentley and Carlos Romero repeatedly

asked for his cooperation.

      When Bentley concluded her investigation into Lobato’s complaints against

Lundstrom and Lobato’s fraudulent reimbursement request, she told Lobato, “I

consider you non-compliant with my request for information regarding your

complaints[;] therefore[,] I have concluded my investigation without your

information and forwarded it to management.” Id. at 440. She further noted, “I

also consider you non-compliant with the investigation into complaints against

you[,] and I have also completed that investigation and forwarded it to

management.” Id. There is no evidence of any further communication between

Bentley and Lobato about his reimbursement request, nor is there evidence that

Lobato ever responded to Bentley’s questionnaire or to Bentley’s concerns about

his failure to cooperate.

                                        -5-
         Following the investigation, Carlos Romero and Bentley formally

reprimanded Lundstrom for his management style and the way he interacted with

Lobato and others in the Farmington office. Lobato reimbursed the State for the

hotel room under protest, and no further action was taken against him at that time.

         E. Conflicts with Other Supervisors

         In October 2008, Lobato filed an amendment to his EEOC charge, saying

that a supervisor “directed [me] to move heavy items against department policy,”

and that this supervisor “attempted to deny me medical treatment for [the

resulting] injury” and made derogatory statements against him. Id. at 332. Soon

after, during a month-long sick leave for the resulting injury, Lobato visited his

workplace and discovered that others were using his office and that his office was

missing various items. He called the police and accused his direct supervisor at

the time, Salomon Romero, of stealing the items from his office. The resulting

police report says Lobato eventually remembered that he had in fact given one of

the items to Salomon Romero before his sick leave. No arrests or charges were

filed.

         Later that fall, NMED selected Norman Norvelle as the new staff manager

for the Farmington office. Norvelle replaced Salomon Romero, who had been the

temporary replacement for Misseri. Thus, Norvelle became Lobato’s new direct

supervisor. Concerned about his job status, Lobato confronted Norvelle on

December 5. Lobato alleges that, during the confrontation, Norvelle touched

                                         -6-
Lobato’s face with his finger. NMED disputes this allegation, saying that another

employee witnessed the incident and reported that Norvelle never touched Lobato.

In any event, Lobato called the police and pressed criminal battery charges

against Norvelle—charges that were ultimately dismissed.

      F. Lobato’s Termination

      According to Carlos Romero, the incident involving Norvelle “was the

trigger point” that made him decide to dismiss Lobato within the probationary

period. Id. at 341. Romero emphasized that the decision to fire Lobato “was my

decision all by myself,” though he received advice from Bentley and legal

counsel. Id. at 341.

      Lobato was served with a notice of dismissal on December 17, 2008. In

the notice, NMED relied on State Personnel Rule 1.7.11.11, which states:

             Probationers and employees in emergency or temporary
             status may be suspended, demoted, or dismissed
             effective immediately with written notice and without
             right of appeal to the Board. The written notice shall
             advise the employee of the conduct, actions, or
             omissions which resulted in the suspension, demotion, or
             dismissal.

Id. at 90. The notice then set forth five grounds for dismissal: (1) Lobato was

untruthful in his employment application by failing to disclose he had left his

position as an investigator at the public defender’s office; (2) he lied about

staying in a hotel in February 2008 in order to receive a per diem reimbursement;

(3) he did not cooperate with the investigation related to the per diem matter; (4)

                                         -7-
he disregarded orders from and argued with his supervisor Norvelle; and (5) he

was rude or otherwise unprofessional to many NMED employees and to an

unidentified member of the public.

                                   II. Analysis

      Lobato contends his firing was motivated by racial and national origin bias

and by NMED’s desire to retaliate against him for both his whistleblowing and

for his opposition to workplace discrimination. He raises four principal claims

against NMED: (1) two separate claims under Title VII of the Civil Rights Act;

(2) a claim under the New Mexico Human Rights Act, N.M. Stat. § 28-1-1 et seq.;

(3) a claim under New Mexico’s Whistleblower Protection Act, N.M. Stat. § 10-

16C-1 et seq.; and (4) a First Amendment claim under 42 U.S.C. § 1983.

      The district court granted summary judgment, and we review de novo.

      A. Title VII

      Lobato raises two separate Title VII claims. First, he alleges that both

discrimination and retaliation were motivating factors in Carlos Romero’s

decision to terminate him. Second, he argues that Lundstrom, as a biased

subordinate, impermissibly influenced Romero in his decisionmaking and that

Lundstrom’s biased reporting was a proximate cause of Lobato’s dismissal,

regardless of whether Romero himself was motivated by the same bias.

      The district court did not credit either of these theories of liability. First,

the court concluded that the record evidence did not support Lobato’s contention

                                          -8-
that NMED’s proffered reasons for his dismissal were in fact pretextual. Second,

the court concluded that NMED insulated itself from Lundstrom’s improper

biases by conducting an independent investigation into Lobato’s conduct. As we

explain below, we substantially agree with the district court’s reasoning on both

Title VII theories.

             1. Pretext

      Title VII prohibits employers from discharging employees on account of

race or national origin. It also forbids retaliating against an employee who

reports or opposes violations of Title VII. See 42 U.S.C. § 2000e-2(a)(1); id.

§ 2000e-3(a).

      We analyze this claim using the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework,

Lobato has the initial burden of establishing a prima facie case of discrimination,

then the burden shifts to NMED to articulate a legitimate, nondiscriminatory

reason for the adverse employment decision. Luster v. Vilsack, 667 F.3d 1089,

1092 (10th Cir. 2011). If NMED can make such a showing, the burden shifts

back to Lobato to show there is a genuine dispute about whether the proffered

explanation was pretext for discrimination. Id.

      The parties do not dispute the first two steps in the McDonnell Douglas

framework. Our analysis thus turns on the third step—pretext.




                                        -9-
      “Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997) (internal quotation marks omitted). “In determining whether the

proffered reason for a decision was pretextual, we examine the facts as they

appear to the person making the decision[,] not the plaintiff’s subjective

evaluation of the situation.” Luster, 667 F.3d at 1093 (internal quotation marks

omitted). Thus, “[t]he relevant inquiry is not whether the employer’s proffered

reasons were wise, fair or correct, but whether it honestly believed those reasons

and acted in good faith upon those beliefs.” Id. at 1094.

      Where, as here, an employer advances a number of reasons for an adverse

employment action, we have adopted a “general rule” that “an employee must

proffer evidence that shows each of the employer’s justifications is pretextual.”

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th Cir. 2005).

      That said, we recognize several variations on this theme. For instance, a

plaintiff might “cast[] substantial doubt on many of the employer’s multiple

reasons,” giving reason to doubt them all. Id. (internal quotation marks omitted).

We also recognize that “one of the stated reasons for termination [may]

predominate[] over the others,” so a showing that the dominant reason was

                                         -10-
pretextual may be sufficient. Id. at 1127. Another alternative is showing that

“the pretextual character of one explanation is so fishy and suspicious that a jury

could find that the employer (or its decisionmaker) lacks all credibility.”

Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir. 2005) (per

curiam) (citation and internal quotation marks omitted). Or a plaintiff may be

able to establish pretext by “discredit[ing] each of the employer’s objective

explanations, leaving only subjective reasons to justify its decision.” Id.

(emphasis added). All of which is to say, our inquiry is not mechanistic; it is

designed to tease out factual questions that are legitimately in dispute. And

summary judgment is appropriate where the plaintiff cannot demonstrate any

genuine dispute of material fact for the jury to resolve.

      With this framework guiding us, we turn to Lobato’s evidence of pretext.

Lobato points to five alleged inconsistencies in NMED’s decision to terminate,

and he suggests they demonstrate pretext either individually or in the aggregate.

As we explain, Lobato has not established a genuine dispute about pretext.

                   a. Progressive Discipline

      Lobato first argues that NMED failed to follow its unwritten policy of

using “progressive discipline”—i.e., a rule that an employee must receive

informal discipline such as a verbal warning or a letter before being terminated.

For this argument to succeed, Lobato must show, first, that NMED had such a

policy, and second, that NMED did not follow that policy when dismissing

                                         -11-
Lobato. See Kendrick v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1230 (10th

Cir. 2000); see also Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1119–20

(10th Cir. 2007).

      Lobato cannot point to any written policy that said NMED mandated

progressive discipline with probationary employees. To the contrary, NMED’s

written policy stated that probationary employees were employed at will and

could be fired for any lawful reason. In particular, that policy, which was

promulgated by the State Personnel Board, permitted probationary employees to

be “suspended, demoted, or dismissed effective immediately with written notice

and without right of appeal to the Board.” App. 90.

      Further, Lobato cannot rely on NMED’s treatment of other probationary

employees to establish a general practice that probationary employees were

entitled to progressive discipline. Neither Bentley nor anyone else in

management ever said that NMED had a mandatory policy of progressively

disciplining any employees, probationary or otherwise. Indeed, Bentley described

five separate instances in which probationary employees were terminated for

infractions she described as “of a similar nature to the conduct that resulted in

Mr. Lobato’s termination.” Id. at 125–26. There is no indication that any of

these probationary employees were given progressive discipline before

termination. Lobato has not challenged this testimony, nor has he pointed to




                                        -12-
other instances where probationary employees have been treated differently from

him after similar instances of misconduct.

      Instead, Lobato points to Lundstrom’s deposition in which Lundstrom says

NMED practiced progressive discipline. When asked whether he was trained to

progressively discipline probationary employees in particular, Lundstrom replies

that he cannot recall a “separate training” for whether to progressively discipline

probationary employees, but that he did not have the authority to hire or fire

employees when he managed Lobato. App. 349. Lobato interprets this testimony

as demonstrating that NMED had a rigid unwritten policy to first warn an

employee in person or through a letter before formal discipline.

      But this deposition testimony falls short of showing that NMED had an

unwritten policy (contrary to its written policy) of requiring progressive

discipline with probationary employees. In fact, Carlos Romero and Bentley

affirmed, and the employment records demonstrated, that serious misconduct

could lead to dismissal. And, in any event, Lundstrom, by his own admission,

had no authority to dismiss employees during Lobato’s employment.

      Lobato also points to one statement by Carlos Romero in which Romero

says it was his “practice generally” to talk to employees about inappropriate

behavior and that “it would be important to get [Lobato’s] side of the story” when

addressing complaints against him. App. 345. Lobato claims these statements

show that NMED had an official policy to inform employees about any problems

                                        -13-
before taking disciplinary action, and that NMED had an official policy to ask for

the employee’s perspective when a co-worker complains about him.

      But these comments do not show that NMED had a policy contrary to or

conflicting with the state rule that probationary employees could be terminated at

will. Indeed, Romero says nothing about whether his general practice applied

specifically to probationary employees. And, in any event, NMED did attempt to

get Lobato’s side of the story, including Bentley’s interview with Lobato about

his per diem request and his complaints against management. There is no

inconsistency here rising to the level of a genuine dispute about pretext.

      We recognize in certain circumstances that an employer’s practice of

applying progressive discipline with more than just a few probationary and non-

probationary employees could establish a policy that all employees should be

progressively disciplined. Under such circumstances, a failure to follow

progressive discipline, even with a probationary employee, might give rise to

evidence of pretext.

      But that is not the case here. Rather, the record shows that NMED did not

deviate from applying its written policy to terminate probationary employees

without additional process. And where “progressive discipline [is] entirely

discretionary,” and the employer “did not ignore any established company policy

in its choice of sanction, the failure to implement progressive discipline is not

evidence of pretext.” Timmerman, 483 F.3d at 1120. Cf. Berry v. T-Mobile USA,

                                        -14-
Inc., 490 F.3d 1211, 1223 (10th Cir. 2007) (finding no jury question whether an

unwritten policy of progressive discipline existed because the employee handbook

contained no reference to progressive discipline and “the evidence demonstrate[d]

many employees were fired without progressive discipline”).

      In sum, even if Lobato was dismissed without prior discipline, that does not

show pretext.

                   b. Falsified Résumé

      Lobato also alleges pretext in NMED’s claim that he falsified his résumé.

The NMED dismissal letter reports that both in his job application and during his

November 2007 interview, Lobato said he was working as an investigator for the

public defender’s office. The letter alleges that these were false statements

because Lobato had in fact quit his job with the public defender in August 2007.

      Lobato does not contest that he left the public defender before his interview

for the NMED job. Rather, he suggests that, when he submitted his résumé to

NMED in January 2007, he was still employed at the public defender’s office, and

that, at his interview, he “was not asked and did not state that [he] was then still

employed with the State Public Defender’s Office.” App. 325. Thus, he

concludes that this proffered rationale for his dismissal must be pretextual

because he was not technically untruthful in either his résumé or his interview.

      We disagree. Even accepting Lobato’s version of the facts, NMED had a

good faith basis for concluding Lobato had misrepresented the truth. Bentley’s

                                         -15-
investigation revealed that Lobato’s employment status at the time of hiring was

not accurately reflected on his résumé—i.e., his résumé said he was employed

with a state agency at that time, but a search of the state’s system showed he was

not. And Lobato does not dispute that the résumé as it was reviewed in

November 2007 was in fact inaccurate. “The relevant inquiry,” we have

explained, “is not whether the employer’s proffered reasons were wise, fair or

correct, but whether it honestly believed those reasons and acted in good faith

upon those beliefs.” Luster, 667 F.3d at 1094 (internal quotation marks omitted).

All Lobato has done is to allege that NMED might have relied on an unfair

perception of the facts, not that NMED relied on that perception in bad faith.

This is insufficient to establish pretext.

                    c. Expense Report

      Lobato also claims pretext in NMED’s accusations that Lobato falsified an

expense report and did not cooperate with an investigation into this matter. As

the dismissal letter indicates, Lobato sought compensation for a night at a hotel in

Albuquerque. Yet he then submitted a receipt for a breakfast he had purchased

300 miles away. Further, the hotel denied that Lobato had stayed there the night

in question. Lobato eventually reimbursed the State for the charges, but only,

according to the dismissal letter, “under protest.” App. 434.

      The letter also explains how, in June 2008, Bentley opened an investigation

into Lobato’s expense report discrepancies and solicited Lobato’s cooperation.

                                             -16-
From NMED’s perspective, Lobato rebuffed this attempt by failing to respond to

Bentley. Lobato suggested that he was having trouble answering questions

because he was the only inspector in the Farmington office, but the dismissal

letter indicates otherwise:

             [T]hree inspectors from other offices were in
             Farmington helping with inspections that week and had
             been going to the Farmington office to do inspections
             for over three months. In addition, your Supervisor,
             Salomon Romero was also there helping out that week
             and had been at the Farmington office every week doing
             inspections to keep up on the workload.

Id.

      In sum, then, NMED’s rationale for dismissal here is that Lobato (1) lied

about staying in a hotel, (2) failed to cooperate with a subsequent investigation

into the matter, and (3) lied in the course of his failure to cooperate.

      Lobato concedes he was not entitled to the expense reimbursement but

attempts to minimize the extent of his dishonesty by noting that he paid back the

money. And, he maintains, the failure to comply with the investigation is the

fault of his lawyer, who forgot to turn in the responses to Bentley’s questions.

      None of these arguments creates a material fact question as to pretext. As

an initial matter, there is no genuine dispute that he was dishonest about staying

in Albuquerque. And whatever Lobato’s lawyer did or did not do has no bearing

on NMED’s justification for terminating Lobato. What matters in the pretext

inquiry is what NMED knew, not what Lobato knew. Luster, 667 F.3d at

                                          -17-
1093–94. Lobato does not allege that he ever informed Bentley or Romero about

his attorney’s purported failure to send responses, nor does he dispute that he

failed to respond to Bentley’s repeated requests for assistance with the

investigation. Thus, Carlos Romero had an ample basis to conclude that Lobato

did not cooperate with the expense report investigation.

      Moreover, Lobato offers no response to Romero’s undisputed contention

that Lobato misled Bentley during the course of the expense report investigation

by stating he was working alone in the Farmington office when in fact there were

three other workers and one supervisor helping him. His failure to contest this

fact further undermines his argument that NMED’s expense account rationale was

pretext for discrimination or retaliation.

      Lastly, Lobato alleges that other employees with the same per diem

problems were treated less harshly than he was. But he points to only one other

such employee, and he offers no evidence that this other employee was also

probationary or otherwise similarly situated with Lobato. Thus, this allegation is

insufficient to establish pretext.

                    d. Unprofessional Behavior

      Lobato next contends that Romero’s allegations of rudeness were

pretextual. It is true that a number of current employees at NMED and Lobato

traded accusations that the other was rude, driven by ulterior motives, or

otherwise unpleasant. And NMED did state in its notice of dismissal that Lobato

                                         -18-
was rude to Carlos Romero, Salomon Romero, Norvelle, another HR employee,

and an unidentified member of the public.

      But we need not enter this fray and determine whether the specific

allegations here are genuinely in dispute or not. Even if we assume that there is a

dispute, we can still conclude that Lobato failed to meet his burden of showing

pretext. NMED apparently believed the other employees’ accounts of interactions

with Lobato, not Lobato’s. We see no reason—and Lobato provides none—that

NMED could not have believed in good faith its employees’ complaints that

Lobato was being rude. 3 Given Lobato’s probationary status, NMED was entitled

to factor in these allegations as grounds for dismissal.

                    e. Temporal Proximity

      Lastly, Lobato contends that the close temporal proximity between his

dismissal and the dates of his allegedly protected activities demonstrate pretext

for his Title VII retaliation claim.

      We recognize that “temporal proximity” between the protected opposition

activity and an adverse employment action “can contribute to an inference of

discrimination.” Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 (10th Cir. 2008).

But that is in the context of evaluating the plaintiff’s prima facie case, which is



      3
         The one exception may be complaints from Lundstrom, but those were
explicitly disregarded by Carlos Romero in a letter to Lundstrom five months
before Lobato’s termination.

                                         -19-
not at issue here. The question here is whether temporal proximity alone also

shows pretext.

      It does not. We have previously held that “temporal proximity is sufficient

to establish a prima facie case, but not to establish pretext, because the

evidentiary burden is different.” Proctor v. United Parcel Serv., 502 F.3d 1200,

1213 n.6 (10th Cir. 2007) (emphasis added). As we explained,

             The burden of establishing a prima facie case in the
             McDonnell Douglas framework is not onerous. It is
             because of this relatively lax burden that we allow
             temporal proximity between a protected activity and an
             adverse action to establish a prima facie case; for the
             same reason, we have not imported this lessened
             standard to pretext analysis where the burden is more
             demanding and requires a plaintiff to assume the normal
             burden of any plaintiff to prove his or her case at trial.
             Allowing very close temporal proximity to operate as a
             proxy for this evidentiary requirement would not further
             the substantive purposes of our inquiry at this stage.

Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004) (citations and

internal quotation marks omitted; alterations incorporated). Thus, close temporal

proximity can support a finding of pretext only in combination with other

evidence of pretext. See id. Because we find no other indication of pretext, close

temporal proximity alone is of no moment in this case.

      Lobato also suggests that the lack of temporal proximity between the

expense account investigation in June and July and his termination in December

indicates pretext. But NMED does not claim the per diem incident alone


                                         -20-
triggered Lobato’s termination. Rather, Carlos Romero testified that Lobato’s

confrontation with his supervisor Norvelle on December 5 was “the trigger point.”

App. 341. That the per diem incident occurred some five months before Lobato’s

termination is consistent with Romero’s explanation that “a stream of many

incidents [] cumulatively brought [the] decision [to terminate Lobato] to the

forefront.” App. 341. The dismissal letter reflects as much.

      Lobato’s temporal proximity arguments do not demonstrate pretext. More,

Lobato has not raised any inconsistency, weakness, or contradiction in NMED’s

decision that would suggest to a reasonable factfinder that NMED’s profferred

reasons should be disbelieved. Hence, NMED is entitled to summary judgment on

this claim.

      We turn now to Lobato’s second theory for Title VII liability.

              2. Subordinate Bias (or “Cat’s Paw”) Liability

      Lobato advances a second theory for Title VII liability: that Lundstrom’s

bias was the proximate cause of Lobato’s termination.

      In support of this theory, Lobato relies on the Supreme Court’s decision in

Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011). See generally EEOC v. BCI

Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484–88 (10th Cir. 2006)

(background on subordinate bias liability). In Staub, an army reservist brought a

claim that he was fired because of his employer’s hostility toward his military




                                        -21-
obligations, a violation of the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA), which mirrors Title VII. 4

      Staub’s theory of unlawful discrimination was not that the HR manager

who fired him was biased, but that the HR manager uncritically relied on reports

from two of Staub’s supervisors who were biased against him. Given the HR

manager’s undisputed lack of antimilitary animus, the question presented was

what to do when the decisionmaker “has no discriminatory animus but is

influenced by previous company action that is the product of a like animus in

someone else.” Staub, 131 S. Ct. at 1191. The Supreme Court concluded, “[I]f a

supervisor performs an act motivated by antimilitary animus that is intended by

the supervisor to cause an adverse employment action, and if that act is a

proximate cause of the ultimate employment action, then the employer is liable

under USERRA.” Id. at 1194 (footnotes and emphasis omitted).

       Lobato reads Staub as announcing a categorical rule. He contends if a

biased supervisor’s animus in any way leads to an adverse employment decision,

      4
         USERRA prohibits an employer from discharging an employee if the
discharge was motivated by hostility to his obligations as a military reservist. 38
U.S.C. § 4311(a), (c). The Staub Court noted the similarities between USERRA
and Title VII. Staub, 131 S. Ct. at 1191 (“[USERRA] is very similar to Title VII,
which prohibits employment discrimination ‘because of . . . race, color, religion,
sex, or national origin’ and states that such discrimination is established when one
of those factors ‘was a motivating factor for any employment practice, even
though other factors also motivated the practice.’”).




                                        -22-
it is the proximate cause of that decision and thus the employer incurs liability—

even if the employer conducts an independent investigation.

      But Staub does not go this far. The Staub Court explained that a

“necessary” element to a subordinate bias claim is the decisionmaker’s uncritical

“reli[ance]” on facts provided by a biased supervisor. Id. at 1193. If there is no

such reliance—that is to say, if the employer independently verifies the facts and

does not rely on the biased source—then there is no subordinate bias liability.

      The Court did not specify which element is missing absent reliance on facts

from the biased supervisor, but it is plain that the element is proximate cause. As

the Court explained in another recent case:

             The term “proximate cause” is shorthand for a concept:
             Injuries have countless causes, and not all should give
             rise to legal liability. “What we . . . mean by the word
             ‘proximate,’” one noted jurist has explained, is simply
             this: “[B]ecause of convenience, of public policy, of a
             rough sense of justice, the law arbitrarily declines to
             trace a series of events beyond a certain point.”

CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2637 (2011) (quoting Palsgraf v.

Long Island R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting)).

Further, the Court has acknowledged that it is necessary to limit cause given that,

“[i]n a philosophical sense, the consequences of an act go forward to eternity, and

the causes of an event go back to the dawn of human events, and beyond.”

Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 266 n.10 (1992). Embracing

such a broad approach to cause “would result in infinite liability for all wrongful


                                        -23-
acts, and would set society on edge and fill the courts with endless litigation.”

Id. 5

        And here, there is a strong incentive not to stretch the limits of causation.

Otherwise,

              any time a biased employee . . . sets in motion the
              process that leads to an adverse employment action, the
              employer would be liable, even if the employer then
              conducted an entirely independent inquiry and
              decisionmaking process insulated from the animus of the
              biased employee, and no matter how compelling the
              nondiscriminatory grounds for taking the adverse
              employment action.

Poland v. Chertoff, 494 F.3d 1174, 1181 (9th Cir. 2007).

        Staub recognizes this problem and solves it. The Court explained that “the

supervisor’s biased report may remain a causal factor if the independent

investigation takes it into account without determining that the adverse action

was, apart from the supervisor’s recommendation, entirely justified.” Staub, 131

        5
          Lobato’s evidence may suggest cause-in-fact—i.e., whether, but for
Lundstrom’s initial report, Bentley and Romero would have known that Lobato
submitted a false expense request or that Lobato engaged in other misconduct.
But cause-in-fact, or “but-for” causation, is not the same as proximate cause. See
David G. Owen, The Five Elements of Negligence, 35 Hofstra L. Rev. 1671,
1680–85 (2007). Proximate cause is “little more than a swirling maelstrom of
policy, practicality, and case-specific fairness considerations.” Id. at 1682. “The
only purpose of adding a proximate cause requirement is to limit liability short of
the full reach of but-for causation . . . .” Charles A. Sullivan, Tortifying
Employment Discrimination, 92 B.U. L. Rev. 1431, 1432 (2012) (reviewing the
effects of Staub). And in employment discrimination law, the Court has “adopted
a more rigorous view of what proximate cause requires.” Id. Thus, as we
explained above, the Supreme Court requires reliance as a “necessary” element of
a subordinate bias theory. Staub, 131 S. Ct. at 1193.

                                          -24-
S. Ct. at 1193 (emphasis added). In short, an employer is not liable under a

subordinate bias theory if the employer did not rely on any facts from the biased

subordinate in ultimately deciding to take an adverse employment action—even if

the biased subordinate first alerted the employer to the plaintiff’s misconduct. 6

      With this understanding, we look to see if there is a genuine dispute about

whether NMED relied on any facts from Lundstrom in deciding to terminate

Lobato. 7 Again, Staub provides the answer.

      There, the HR manager received two reports from two biased supervisors of

Staub’s alleged misconduct. Staub disputed the allegations to management,

attributing them to his supervisors’ impermissible bias. But the HR manager “did

not follow up” on the dispute. Staub, 131 S. Ct. at 1190. When the second report


      6
         Lobato suggests that the above analysis conflicts with McKenna v. City of
Phila., 649 F.3d 171 (3d Cir. 2011), cert. denied, 132 S. Ct. 1918 (2012), or
Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (6th Cir. 2012), which also
address post-Staub Title VII subordinate bias theories. We disagree. Unlike here,
in both McKenna and Chattman, the decisionmakers uncritically relied on
information provided by a biased subordinate. See McKenna, 649 F.3d at 178–79
(the record suggested that the decisionmakers heard evidence only from the
biased subordinate); Chattman, 686 F.3d at 353 (the biased subordinate
“misinformed and selectively informed” the ultimate decisionmakers about the
incident that triggered the adverse employment action).

       Further, in Chattman, the plaintiff alleged that the biased subordinate
selectively reported conduct violating company policy, and there, such violations
were otherwise widespread. But Lobato has not alleged that Lundstrom
selectively reported Lobato’s misconduct.
      7
         The Staub Court “express[ed] no view as to whether the employer would
be liable if a co-worker, rather than a supervisor, committed a discriminatory act
that influenced the ultimate employment decision.” Staub, 131 S. Ct. at 1194 n.4.

                                        -25-
came, she simply “relied” on the biased supervisor’s “accusation” and terminated

Staub. Id. at 1189.

      By contrast, here, there is no indication that Carlos Romero or Bentley

ultimately relied upon Lundstrom’s version of the facts. To the contrary, well

before Lobato’s termination, Romero detailed in a letter to Lundstrom that he did

not credit any of Lundstrom’s particular criticisms of Lobato. For example,

Lundstrom accused Lobato of lying on his résumé. Instead of relying on

Lundstrom’s accusation, NMED conducted its own investigation into Lobato’s

conduct. As is detailed in Bentley’s affidavit, NMED reviewed records available

through a database for state employers and independently determined whether

Lobato misrepresented when he had ended his time at the public defender’s

office. And Lobato does not dispute any of NMED’s factual findings related to

the résumé falsification issue; he disputes only that these factual findings actually

demonstrate NMED’s good faith belief that he lied on his résumé. 8

      The same holds true for the expense report issue. Again, Bentley did not

rely on Lundstrom’s accusation that Lobato was fraudulently claiming per diem

expenses. Rather, she investigated the matter herself and even attempted to

solicit (unsuccessfully) Lobato’s point of view. She independently concluded that




      8
         Lobato does dispute that NMED conducted an independent investigation
into the résumé falsification issue, but he fails to account for Bentley’s database
investigation.

                                         -26-
Lobato did not stay at a hotel in Albuquerque, and—unlike Staub—Lobato does

not dispute this underlying factual basis for his termination either.

      Because there is no genuine dispute that NMED decided to dismiss Lobato

after conducting an independent investigation without relying on facts from

Lundstrom, we conclude this theory of Title VII liability fails.

      B. Other Claims

      New Mexico Human Rights Act. The New Mexico Human Rights Act sets

out the same standard for establishing wrongful discrimination as Title VII does.

See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 n.5 (10th Cir. 2005); Cates

v. Regents of N.M. Inst. of Mining & Tech., 954 P.2d 65, 69–70 (N.M. 1998). 9

Thus, because we conclude that Lobato has no Title VII claim, we also conclude

he has no NMHRA claim.

      Whistleblower Protection Act. Under New Mexico’s Whistleblower

Protection Act, a public employer may not take any “retaliatory action” against its

employees for whistleblowing. See N.M. Stat. Ann. § 10-16C-3 (West 2013). To

show that his termination was a “retaliatory action,” Lobato invokes the evidence



      9
         The Supreme Court recently established that for a Title VII retaliation
claim, a plaintiff must establish that the defendant would not have taken the
adverse employment action “but for” the impermissible motive. Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). The New Mexico Supreme Court
has yet to interpret the New Mexico Human Rights Act as also imposing this
standard. Because Lobato cannot demonstrate that bias or retaliation was a
motivating factor in his dismissal, he cannot meet the higher standard established
in Nassar either. Thus, we need not predict Nassar’s effect on New Mexico law.

                                         -27-
presented for his Title VII claims. He says this evidence is sufficient to raise a

jury question for his whistleblowing claim, too. Indeed, his arguments are

identical to those he made in support of his Title VII claims. But as discussed

above, those arguments and supporting facts are insufficient to raise a genuine

dispute about whether NMED fired Lobato for any reason other than the

nonretaliatory justifications provided in Lobato’s dismissal letter. Accordingly,

Lobato has not raised a genuine dispute of material fact for this claim either.

      First Amendment Retaliation. Finally, Lobato alleges a First Amendment

retaliation claim under 42 U.S.C. § 1983. He argues that his reporting of

Misseri’s misconduct, the Title VII violations, and the subsequent alleged

retaliatory conduct was all protected speech for which he was fired.

      This claim implicates the fourth prong of the five-prong test for First

Amendment retaliation claims established in Garcetti v. Ceballos, 547 U.S 410

(2006). Under Garcetti’s fourth prong, “plaintiffs bear the burden of establishing

. . . that the constitutionally protected speech was a substantial motivating factor

in the employer’s decision to adversely alter the employee’s conditions of

employment.” Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon Cnty., 587 F.3d

1223, 1236 (10th Cir. 2009). To prevail on this prong, Lobato essentially repeats

his arguments from the Title VII context and adds that the temporal proximity

between his complaints and his termination suggest that his protected speech was

a motivating factor in Carlos Romero’s decision to fire him. But the foregoing


                                         -28-
demonstrates that Lobato’s Title VII evidence and arguments are insufficient to

raise a genuine dispute about whether Romero had nonretaliatory reasons for

dismissing Lobato or whether Lundstrom impermissibly influenced Romero’s

decision. And “[w]ith regard to the need to show causation as part of the fourth

prong of Garcetti, we have said that . . . mere temporal proximity of Plaintiff’s

protected speech to the adverse action is insufficient, without more, to establish

retaliatory motive.” Id. (internal quotation marks omitted). Thus, Lobato cannot

establish the fourth prong of the Garcetti test, and this claim fails.

                                 III. Conclusion

      For these reasons, we AFFIRM the judgment of the district court.




                                          -29-
