                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 31 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 ANTONIO “TONY” CORDOVA,
     Plaintiff-Appellant,

 v.                                                    No. 01-2326
                                            (D.C. No. CIV-00-1328-KBM/DJS)
 PNM ELECTRIC AND GAS                               (D. New Mexico)
 SERVICES, a corporation doing
 business within the State of New
 Mexico,

          Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before HENRY and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Plaintiff-Appellant Cordova appeals the district court’s grant of summary

judgment in favor of Defendant-Appellee PNM on his claims of race and/or

national origin discrimination and age discrimination under Title VII and the

ADEA, and his state law claims of breach of contract, prima facie tort, and




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
retaliatory discharge. Appellant, a fifty-six-year-old 1 Hispanic male, worked for

PNM for twenty-five years. In July 1999, he was placed on administrative leave,

allegedly while he was investigated for violating safety regulations. When he

returned in August, he was discharged because of safety violations. PNM also

claimed that Appellant was terminated because he had pornographic materials in

his company truck and office area. 2 Appellant claims he was fired because of his

age and race and in retaliation for his previous complaints to management about

safety concerns.

      We review the grant of summary judgment de novo applying the same

standards used by the district court. Watts v. City of Norman, 270 F.3d 1288,

1293 (10th Cir. 2001). All facts and reasonable inferences are construed in a

light most favorable to Appellant, the non-moving party. Trujillo v. University of

Colorado Health Servs. Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998).

      Title VII and ADEA claims are analyzed under the McDonnell Douglas

burden-shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

First, the plaintiff must establish a prima facie case of discrimination. Kendrick


      1
          At the time of his discharge.
      2
       The district court did not rely on Appellant’s alleged possession of
pornographic materials in its grant of summary judgment. We agree that “it is not
necessary to consider the pornography Plaintiff possessed in evaluating the work
performance issues that justified his discharge.” Memorandum Opinion and
Order, Aplt. App., at 26, n.9.

                                          -2-
v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000). If the

plaintiff establishes a prima facie case, then the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason for its adverse employment

action. Id. If the employer meets its burden, the plaintiff must proffer evidence

that the employer’s reason is pretextual. Id.

      The district court found that Appellant established a prima facie case and

that PNM provided an adequate non-discriminatory reason for the discharge. The

district court then granted summary judgment to PNM based on the court’s

holding that Appellant failed to show pretext. Neither party appeals the district

court’s rulings on the first two elements. Because we find it dispositive, we will

limit our inquiry to whether Appellant submitted any admissible evidence that

PNM’s reasons for his discharge were mere pretext for its true discriminatory

reasons.

      In order to prove pretext, Appellant alleges that PNM fostered a racially

charged atmosphere and systematically targeted employees over fifty years of age

for termination. He claims that disparaging remarks were made about Hispanics

in the presence of management and that a certain employee who admitted to being

prejudiced against “Mexicans” was nevertheless promoted to management.

Appellant stresses that PNM does not appear to have initiated administrative leave

for the purpose of investigating employees in the past. He alleges that this was


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merely a pretext in order to find a reason to fire him.

      We are not persuaded by Appellant’s arguments. The bottom line in this

case is that all of the things alleged by Appellant, even if true, do not support a

claim for race, national origin, and/or age discrimination. We combed the record

for any evidence that Appellant’s termination was motivated by race, national

origin, and/or age. Aside from the comments allegedly made by one supervisor

who was not a part of the termination decision, 3 we were unable to find any

support for these assertions. 4 Appellant’s “evidence” is a group of conclusory

assertions which fail to rebut PNM’s legitimate reasons for firing him. See Aplt.

App., at 322-29. There is simply no nexus between the alleged retaliation and

race, national origin, and/or age.

      The triggering event leading to the investigation which eventually led to

Appellant’s discharge was wholly objective and external. The Albuquerque Gas

Control Office called out a request to the Clovis office to investigate the cause of

      3
        We are slightly concerned with the veracity PNM’s argument that the
persons involved in the termination decision were not the same as the supervisors
who made the alleged discriminatory comments. It seems logical that the persons
making a termination decision would have at least consulted with Appellant’s
direct supervisors. However, the fact that the triggering event was wholly
external and the thin evidence of race or age-based animus dilutes this concern.
      4
        It may be true that Appellant’s supervisor was abrasive and fostered a
difficult working environment. It may be true that Appellant’s supervisor did not
like him. However, these facts alone are not enough to establish that Appellant
was fired for improper reasons – especially where there is no specific evidence
that Appellant’s supervisor made the termination decision.

                                          -4-
an alarm which had indicated that the gas pressure had risen to dangerous levels.

The Transwestern Border Station was within Appellant’s area of responsibility.

Since Appellant was on vacation at the time, another gas system technician was

called in to inspect the station. The technician discovered that the relief valve

pressure was set to a level higher than the maximum allowable operating pressure.

During his inspection, the technician also discovered other safety violations and

hazards.

      It is significant that the investigation was triggered by objective safety

concerns that, upon further investigation, proved to be valid. PNM provided

evidence that it initiated the investigation based on these objective and legitimate

concerns about Appellant’s safety practices. PNM also provided evidence of

additional safety violations by Appellant, discovered in the investigatory process,

and the potential for those violations to create liability for PNM. From the point

of view of PNM management, Appellant had put the company and the public at

risk with his safety violations.

      From the record, it appears that it was the state of the Transwestern Border

Station and the additional safety issues revealed by the investigation which led to

Appellant’s termination. Appellant simply did not provide any evidence to the

contrary. In fact, Appellant admitted in an interrogatory that “[t]hey could have

terminated me just on the Portales w/l [Transwestern Border Station] incident.”


                                         -5-
Interrogatory Answer No. 11, Aplt. App., at 270. Therefore, we agree with the

well-reasoned and detailed opinion of the district court holding that Appellant did

not submit any admissible evidence that PNM’s reasons for firing him were mere

pretext.

      In addition to his discrimination claims, Appellant set forth a variety of

state law claims. He first alleges that PNM breached a contract with him by

firing him without cause, notice, and an opportunity to be heard. Pursuant to New

Mexico law, Appellant bears the burden of showing an “express contractual

provision stating [that employment is not at-will].” See Garrity v. Overland

Sheepskin Co. of Taos, 917 P.2d 1382, 1385 (N.M. 1996). 5 The only evidence of

an employment contract that Appellant has provided is the Human Resources

Manual which provides that PNM may terminate employees for cause after giving



      5
             The general rule in New Mexico is that an employment
             contract is for an indefinite period and is terminable at
             the will of either party unless the contract is supported
             by consideration beyond the performance of duties and
             payment of wages or there is an express contractual
             provision stating otherwise. Courts have allowed an
             exception to the at-will employment rule when there is
             an implied contract arising out of an employer’s promise
             not to fire an employee except for just cause. However,
             we will not find an implied contract for cases in which
             the alleged promise by the employer is not sufficiently
             explicit.

Garrity, 917 P.2d at 1385 (internal citations and quotations omitted).

                                         -6-
them notice and an opportunity to be heard. Appellant alleges that this Manual

creates either an express or an implied contract for employment. However, the

Manual specifically states that it “is not an employment contract, either express or

implied” and that “[e]mployment with the company is at-will. That is, either the

employee or the employer may end the employment relationship at any time, with

or without cause, and with or without notice.” Rec., Ex. C-1, at 1 (filed under

seal).

         We agree with the district court that Appellant did not have either an

express or implied contract with PNM. As discussed above, to be considered an

express contract for employment, New Mexico law requires an express

contractual provision stating that employment is not at will. Therefore, the

Manual is not an express contract.

         Appellant’s assertion that there was an implied contract also fails. New

Mexico law provides:

         An implied contract is created only where an employer creates a
         reasonable expectation. The reasonableness of expectations is
         measured by just how definite, specific, or explicit has been the
         representation or conduct relied upon. Given the express reservation
         of the right to terminate an employee for any reason, [the] written
         personnel policy cannot be said to have created any reasonable
         expectation of an implied contract.

Garrity, 917 P.2d at 1385-86 (internal citations and quotations omitted). The

Manual did not create a reasonable expectation of an implied contract. First, the


                                           -7-
express reservation weighs against Appellant’s assertion that he had a reasonable

expectation that his employment was something other than at will. Additionally,

PNM’s use of positive discipline does not, in this case, create a contractual

relationship with Appellant. The use of positive discipline is within the context

of the rest of the Human Resources Manual which states that it is not an

employment contract. The Manual also specifically states that there are

exceptions to the positive discipline program and that the list in the Manual is not

exhaustive. Taken in context, PNM’s use of positive discipline could not have

created a reasonable expectation that Appellant was subject to an implied

employment contract.

      Appellant also alleges retaliatory discharge in response to his complaints

about safety issues to management. He alleges that he complained to both Mr.

Deckard and Mr. Doles, his supervisors, about safety concerns in stations under

his and their responsibility. Appellant alleges that they did not remedy these

concerns and then resented him for having raised the issues.

      This claim also fails. First, we are unaware of any New Mexico decisions

which specifically recognize public safety complaint retaliation in situations

where the complaint is made only to an employee’s immediate supervisors. New

Mexico does recognize retaliation for reporting “unsafe working conditions to the

appropriate public agency.” Garrity, 917 P.2d at 1388 (citing Gutierrez v.


                                         -8-
Sundancer Indian Jewelry, 868 P.2d 1266, 1272 (N.M. Ct. App. 1993)); see also

Weidler v. Big J Enters., Inc., 953 P.2d 1089 (N.M. Ct. App. 1997). The New

Mexico Supreme Court has cautioned that while even though it “did not address

the case of an employee reporting information only to his or her supervisor[, that]

should not be read as foreclosing the possibility of bringing a retaliatory-

discharge claim in such circumstances. ” Garrity, 917 P.2d at 1388. However,

even if New Mexico were to recognize retaliation for an internal safety complaint

as a cause of action, Appellant failed to show that those who eventually

terminated him actually knew about his safety complaints to his immediate

supervisors.

      Appellant also alleges a claim of prima facie tort. However, as noted by

the district court, New Mexico law does not recognize a claim for prima facie tort

in employment-at-will situations. Aplt. App., at 31; Ewing v. State Farm Mut.

Auto. Ins. Co., 6 F. Supp. 2d. 1281, 1291 (D.N.M. 1998); see also Yeitrakis v.

Schering-Plough Corp., 804 F. Supp. 238, 249 (D.N.M. 1992); Hill v. Cray

Research, Inc., 864 F. Supp. 1070, 1079 (D.N.M. 1991); Schmitz v. Smentowski,

785 P.2d 726, 738 (N.M. 1990). Appellant’s claim can only survive if the court

finds that there was a valid contractual relationship. Because there was no

contractual relationship, this claim must also fail.




                                          -9-
For the foregoing reasons, the decision of the district court is AFFIRMED.



                                       Entered for the Court



                                       Monroe G. McKay
                                       Circuit Judge




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