Morris v. ADC Telecommunications, Inc

Filing 23

ORDER GRANTING 18 Motion for Summary Judgment. Signed by Judge Kathleen Cardone. (fm, )

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS E L PASO DIVISION

S Y L V I A MORRIS, Plaintiff, v. A D C TELECOMMUNICATIONS, I N C ., Defendant.

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ORDER O n this day, the Court considered Defendant's "Motion for Summary Judgment" (" M o t io n " ) (Doc. No. 18). For the reasons set forth below, the Motion is GRANTED. I. BACKGROUND D e fe n d a n t ADC Telecommunications, Inc. ("ADC"), a provider of communication in fra s tru c tu re products and services, is a business organization headquartered in Minnesota. Def.'s Proposed Undisputed Facts ¶ 1 ("Def.'s Facts") (Doc. No. 18-1). It has a sales and support o ffic e , and a warehouse, located in Santa Teresa, New Mexico. Id. Plaintiff Sylvia Morris (" M o rris " ) began work in that office as a "knowledge base assistant" in April 2007. Id. ¶ 2. Morris was laid off in November 2008. Id. ¶ 6. At the time, ADC cited uncertain economic c o n d itio n s as the reason for Morris's layoff, and now notes that it laid off a total of over 250 U.S. b a s e d employees during the fall of 2008. Id. ¶¶ 4-5. Immediately after her layoff, some of M o r ris 's job functions were distributed among a number of ADC employees in other locations, b u t her main functions concerning the maintenance of the knowledge base were re-activated or

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re -c o n s o lid a te d after six or nine months and given to Suneetha Vangireddy ("Vangireddy"), who w o rk e d in Bangalore, India. Id. ¶ 7; see also Pl.'s Factual App. ("Pl.'s Facts") ¶ 7 (Doc. No. 191 ) . Vangireddy earns a salary of approximately $12,000 per year, while Morris was paid a p p ro x im a te ly $36,000 per year while working for ADC. Def.'s Facts ¶ 7. B e lie v i n g that her layoff was motivated by unlawful discrimination, Morris filed an a d m in is tra tiv e charge of discrimination with the relevant agencies. Id. ¶ 8. Morris alleges that A D C was motivated by national origin discrimination, retaliation, and her association with a n o th e r employee who complained of sexual harassment. Id. Morris states that her supervisor, K a te Kittiko ("Kittiko"), made a demeaning facial expression upon meeting Morris and a s c e rta in in g that Morris was of Mexican heritage. Id. ¶ 9. Morris also states that she complained t o Kelly Ruff ("Ruff"), a human resources director, about the racism she perceived on Kittiko's p a rt. Pl.'s Facts ¶ 10. Morris also complained to Ruff about other related matters, including the a l l e ge d l y uncouth and/or racist behavior of an ADC supervisor named Denise Anderson. Def.'s F a c ts ¶ 13. M o r ri s filed the instant suit in Texas state court on March 30, 2009, seeking recovery u n d er New Mexico employment discrimination law. Notice of Removal ¶ 1 (Doc. No. 1). ADC re m o v e d the case to this Court on June 29, 2009, citing diversity jurisdiction. Id. ¶¶ 1-5. ADC fi le d the instant Motion seeking summary judgment on June 3, 2010. Morris filed Plaintiff's R e s p o n se to Defendant's Motion for Summary Judgment ("Response") (Doc. No. 19) on June 17, 2 0 1 0 . ADC filed its Reply on July 1, 2010 (Doc. No. 22), along with its Defendant's Objection t o Plaintiff's Summary Judgment Evidence ("Defendant's Evidence Objections") (Doc. No 21).

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II.

D ISC U SSIO N A. Standa rd

S u m m a ry judgment is required "if the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R . CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Warfield v. Byron, 436 F.3d 5 5 1 , 557 (5th Cir. 2006). The substantive law identifies which facts are material. See Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 1 8 9 (5th Cir. 1996). A dispute about a material fact is genuine only "if the evidence is such that a re a s o n a b l e jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; E llis o n , 85 F.3d at 189. " [T h e] party seeking summary judgment always bears the initial responsibility of in fo rm i n g the district court of the basis for its motion, and identifying those portions of [the re c o r d ] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 4 7 7 U.S. at 323; Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996). If the m o v in g party meets its initial burden, the nonmoving party "must set forth specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e). The nonmovant's burden may not b e satisfied by "conclusory allegations, unsubstantiated assertions, or only a scintilla of e v i d e n c e ." Warfield, 436 F.3d at 557 (quoting Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 8 5 4 , 860 (5th Cir. 2004)). Factual controversies are to be resolved in favor of the nonmovant, " b u t only when there is an actual controversy, that is, when both parties have submitted evidence

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o f contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "Inferences drawn from the underlying facts . . . must be viewed in the light most favorable to the p a rty opposing" summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U .S . 574, 587 (1986) (ellipses in original). Thus, the ultimate inquiry in a summary judgment m o tio n is "whether the evidence presents a sufficient disagreement to require submission to a ju r y or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U .S . at 251-52. B. A n a lys is

M o r ris sets forth claims for both national origin discrimination as well as retaliation under N e w Mexico employment law. This Order addresses each claim in turn. 1. M o r r is claims national origin discrimination

M o rris claims that her 2008 layoff was motived by national origin discrimination. See R e s p . 1. ADC responds that her layoff was part of a larger cost-cutting program motivated by p o o r economic conditions and argues that her inclusion in this program was not motivated by u n la w fu l discriminatory animus. See Mot. 4-8. T h e New Mexico Human Rights Act ("NMHRA") prohibits employment discrimination o n the basis of, inter alia, national origin. N.M. STAT. § 28-1-7(A). Employees complaining of e m p l o ym e n t discrimination may sue their employers, and, when analyzing cases brought under th e NMHRA, New Mexico law has adopted the federal evidentiary framework promulgated by th e United States Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973); s e e also Smith v. FDC Corp., 787 P.2d 433, 436 (N.M. 1990) ("The evidentiary methodology

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a d o p te d [in McDonnell Douglas] provides guidance for proving a violation of the New Mexico H u m a n Rights Act."). At the same time, New Mexico courts have been keen to stress that, while fe d e r a l precedent may be used to shed light on NMHRA, the state "has not adopted federal law as [its ] own." Id. The McDonnell Douglas framework is used to analyze a case of alleged discrimination w h e r e indirect evidence might support a finding of prohibited discrimination, even if no "direct p ro o f" is available. Id. at 436 n.1. Accordingly, this framework may be bypassed in cases where d ire c t evidence of discrimination is at issue. See Martinez v. Yellow Freight Sys., 113 N.M. 366, 3 6 9 (1992). Under the McDonnell Douglas three-step framework, the complaining employee m u s t first establish a prima facie case of employment discrimination. 411 U.S. at 802. If a p l a i n t i ff succeeds in establishing a prima facie case, the burden then shifts to the employer to " a rtic u la te some legitimate, nondiscriminatory reason" for the adverse employment action. Id. Finally, assuming that the employer manages to make this articulation, the employee then has the " o p p o rtu n ity show that the [employer's] stated reason for [the adverse action] was in fact p r e te x t ." Id. at 804. A prima facie case of employment discrimination requires the plaintiff to prove four e le m e n ts : (1) that he or she belongs to a protected group; (2) that he or she was qualified for the jo b at issue; (3) that her or she suffered an adverse employment action; and (4) that he or she was re p la c e d by someone outside the protected group or otherwise subject to a double standard or d is c rim in a to ry adverse treatment. Id. at 802; see also Smith, 787 P.2d at 437. An adequate prima fa c ie case places a burden of production on the defendant to articulate a "legitimate,

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n o n d is c rim in a to ry reason" for the adverse action. Martinez, 113 N.M. at 368. This requires the in tro d u c tio n of admissible evidence to support that reason. See Tex. Dep't of Cmty. Affairs v. B u r d in e , 450 U.S. 248, 255 (1981). If the employer meets this burden, the plaintiff can challenge the veracity and adequacy of t h e employer's proffered nondiscriminatory reason in order to demonstrate that it is a mere p re te x t for unlawful discrimination. See McDonnell Douglas, 411 U.S. at 802. The plaintiff can a t t a c k the employer's reason by showing either: (1) that the reason, and the purported facts u n d e r l yi n g it, are simply not true; or, (2) that even though the reason and the facts behind it are t ru e , the stated reason "is not the only reason" for the adverse employment action and that a " m o t iv a t in g factor" was the plaintiff's "protected characteristic." Alvarado v. Tex. Rangers, 492 F .3 d 605, 611 (5th Cir. 2007); see also Cates v. Regents of N.M. Inst. of Mining & Tech., 124 N .M . 633, 638 (1998). Though the first method of demonstrating pretext does not directly prove t h a t discrimination was the reason behind the adverse action, demonstrating that the employer's e x p l a n a t i o n is false or unworthy of credence, when taken together with the plaintiff's prima facie c a s e , may support a finding of discrimination even without further evidence of defendant's true m o tiv e . See Garcia-Montoya v. State Treasurer's Office, 130 N.M. 25, 42 (2001). As to the s e c o n d method of showing pretext, McDonnell Douglas itself supports it, as there it was u n d is p u te d that the plaintiff had committed the bad acts cited by the employer as its reason for n o t rehiring him, and the only question was whether an additional discriminatory motive was in v o lv e d . 411 U.S. at 795-96, 803. a. M o r r i s sets forth a prima facie case of national origin d is c r i m i n a ti o n

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B o t h ADC and Morris agree that Morris has set forth a prima facie case of employment d i s c rim in a t io n , though ADC takes pains to argue that it is "weak." Mot. 5. It is undisputed that M o r ris is a member of a protected group, as she is of Mexican national origin, that she was q u a lifie d for her job, that she lost her job, and that her duties were ultimately assumed by an e m p lo ye e of a different national origin; namely, by Vangireddy, who is Indian.1 b. A D C articulates a legitimate, nondiscriminatory reason for M o r r is 's layoff

T o rebut the prima facie case of discrimination, ADC offers a legitimate, n o n d is c rim i n a to ry reason for Morris's layoff; namely, that hard economic times prompted a s ign ific a n t round of layoffs across the whole company. See Mot. 5, 12; see also Nichols v. Loral V o u g h t Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (recognizing a "reduction in force" as a l e g it im a t e , nondiscriminatory reason). ADC offers several pieces of evidence to support this re a s o n . First, ADC has filed a copy of an email message dated October 22, 2008, entitled " A n n o u n c e : A message from Bob Switz, Chairman, President and CEO" ("CEO Announcement") M o t . Ex. 7 (Doc. No. 18-2). In this message, Bob Switz comments on the "uncertain m a c ro e c o n o m ic environment," states that there will be a corporate restructuring, and writes that th e s e "restructuring efforts include reductions in the company's worldwide workforce." CEO A n n o u n c e m e n t 1. He also acknowledges that ADC will continue to "provide limited salary

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Though there is some uncertainty over whether to regard V a n g ir e d d y as a direct replacement of Morris, see subsection ( 3 ) below, the Court here resolves this doubt in favor of the n o n - m o v i n g party and find that Morris has satisfied this e le m e n t of the prima facie case.

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a d ju s tm e n ts where warranted based on individual levels of contribution and performance," th o u gh the budget for salary increases was reduced. Id. 1-2. A d d itio n a lly, ADC has filed the Declaration of Shannon Gronemeyer, see Mot. Ex. C ( " G r o n e m e ye r Decl.") (Doc. No. 18-4), which discusses Morris's situation specifically. In it, G ro n e m e ye r, an ADC executive, notes that ADC laid off approximately 250 U.S. employees d u rin g the fall of 2008, that he specifically informed Kittiko that her department would be forced to cut jobs as part of the restructuring, and that he and Kittiko chose two knowledge base p o s itio n s for termination because the knowledge base, while helpful, could be left unattended for s o m e time without serious detriment to the company. See Gronemeyer Decl. ¶¶ 7-8.2 G r o n e m e ye r also states that, after about half a year of neglect and an upsurge of interest, it b e c a m e clear that the knowledge base would require renewed maintenance, so he eventually a u th o riz e d the hiring of Vangireddy. Id. ¶ 9. Gronemeyer notes that Vangireddy earns about $ 1 2 , 0 0 0 per year, while Morris was paid about $36,000 per year. Def.'s Facts ¶ 7. ADC has also file d the Declaration of Kate Kittiko, Mot. Ex. D ("Kittiko Decl.") (Doc. 18-5), which relates s u b s ta n t ia lly the same information, but states that the actual hiring of Vangireddy took place a b o u t nine months after Morris was laid off. See Kittiko Decl. ¶ 5.

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Morris also recounts an occasion where Gronemeyer a n n o u n c e d that he did not expect "any kind of disruption" to th e Santa Teresa workforce because it was a "low-cost center." Dep. of Sylvia Morris ("Morris Dep.") 136:4-137:24 (Doc. N o . 19-2 Ex. A). The Court regards this as an admission by a p a r t y opponent and thus not excluded by the hearsay rule. See F E D . R. EVID. 801(d)(2). However, these remarks were a p p a r e n tly made in July 2008, several months before the CEO a n n o u n c e d his restructuring program. Morris Dep. 137:7-9. Thus, they do not seriously call into question Gronemeyer's l a t e r testimony.

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T h u s , through the use of admissible evidence filed before the Court, ADC has articulated a legitimate, nondiscriminatory reason for Morris's layoff. Accordingly, the burden shifts back to M o r ris to rebut this reason in order for her claim to survive. c. M o r r is fails to rebut ADC's reason

M o r ri s may rebut ADC's proffered reason in one of two ways. She may show that it is u n tru e or unworthy of credence, which would allow a fact-finder to infer that discrimination or re ta lia tio n was the true motive, or she may show that, while the proffered reason is true, an a d d itio n a l impermissible motive was also behind the adverse employment action. See Cates, 124 N .M . at 638. An employee may concede the business necessity of a large-scale layoff while m a in t a in i n g a claim that the decision to include her, in particular, in the laid-off group was p re m is e d on unlawful grounds. See Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1106 (10th C i r. 2008). In such circumstances, courts look to inconsistencies and irregularities in the framing o f the employer's reason behind the layoff, and how the layoff criteria were applied to the c o m p la in in g employee, in order to ascertain whether the layoff served as a pretext for the c o m m is s io n of wrongful employment practices. Id. at 1106-07; see also Resp. 7. If a new e m p l o ye e is quickly hired to replace the laid off employee, legitimate doubts may be raised as to th e assertion that the company eliminated the laid-off worker's position as part of a restructuring. Pilcher v. Cont'l Elecs. Corp., 121 F.3d 703, 1997 WL 450078, at *3 (5th Cir. 1997) (u n p u b lis h e d opinion). Redistributing the laid-off worker's duties among several remaining e m p lo ye e s , however, does not give rise to the same inference. Id. at *4. M o rris argues that ADC's claim that she was laid off for economic reasons is undercut by

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th e fact that ADC gave raises, at the time, to certain other employees. See Resp. 7. This fact, h o w e v e r, does not point out an inconsistency in ADC's plans. ADC executives have explained, a ft e r the fact, that giving out raises to remaining employees ­ who took over extra tasks from laid o ff employees ­ is not inconsistent with overall cost-cutting if the cost of the raises is outweighed b y the savings brought about by the job cuts. See Reply 4; Gronermeyer Decl. ¶ 7 n.1. More te llin g ly, ADC's CEO announced, before the layoffs were even implemented, that some number o f salary increases would be made even in the face of these budget cuts and layoffs. See CEO A n n o u n ce m e n t 1-2. Moreover, courts have recognized that salary increases for remaining e m p l o ye e s can be made in the face of layoffs without automatically invalidating a company's c o s t-s a v in g rationale. See Brown v. CSC Logic, Inc., 82 F.3d 651, 657 (5th Cir. 1996). Beyond p o in tin g to these raises generally, Morris has submitted no evidence which rebuts ADC's own e x p l a n a t i o n s and evidence concerning the details of their restructuring program. Thus, Morris h a s furnished the Court no reason to doubt that ADC's actions failed to conform with its plans, or th a t ADC's widely announced plans were logically inconsistent with its cost-cutting goals. M o r ris goes on to argue that the evidence shows that ADC did not actually eliminate her jo b position during the layoff, which casts doubt on their restructuring rationale. See Resp. 7-8. However, Morris herself admits that no replacement was immediately hired and that her job d u t ie s were distributed among existing employees for at least a six month period.3 Resp. 8. This

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Morris and ADC also spar over whether the employees to w h o m her duties were redistributed were of Mexican national o r ig in or not. Resp. 8; Reply 5 n.3. This issue is not i m p o r t a n t in the present context, however. Replacement by a w o r k e r outside the class of the laid off worker is an element of a prima facie case of discrimination under the McDonnell

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re d is trib u tio n of duties does not suggest that the supposed job-elimination was illusory, as the im m e d ia te hiring of a replacement might. See Pilcher, 121 F.3d 703, 1997 WL 450078, at *4. The eventual re-consolidation of Morris's duties, and the hiring of Vangireddy to assume th e m , similarly fails to undercut ADC's position. First, the period of six to nine months when the p o s itio n did not exist, combined with ADC's explanation of a late upsurge in interest in the k n o w le d g e base tool, plausibly accounts for the elimination of the knowledge base maintenance p o s i t io n followed by its good faith reestablishment.4 See Reply 5; Gronemeyer Decl. ¶ 9. S e c o n d , even if the Court concludes that ADC never truly eliminated Morris' position, a direct r e p l a c e m e n t of Morris by Vangireddy still does not undercut ADC's cost-savings rationale. It is

Douglas test. See 411 U.S. at 802. Because the Court has r e s o l v e d this uncertainty in favor of finding that Morris has set f o r t h a prima facie case of discrimination, there is no need to c o n s id e r that issue at this stage of the analysis. The relevant q u e s tio n at this stage is whether a direct replacement was hired o r whether Morris's duties were distributed among existing e m p lo y e e s ­ not the national origin of any such employees.
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M o r r is argues that there is some evidence showing that ADC s o u g h t to replace her about one month after her layoff. See R e s p . 7. Specifically, Morris refers to her deposition te s tim o n y where she recounts a conversation with a technology c o n s u lta n t named Teddy W u , who stated that he had discussed w i th an ADC manager the possibility of training a replacement f o r M o r r i s . See Morris Dep. 110:1-111:18. This conversation w a s said to have taken place about a month after Morris was l a i d off. Id. ADC objects to this evidence on the grounds that i t is hearsay. See generally Def.'s Evid. Obj. The Court finds th a t Morrs's recollections of W u 's out-of-court statements are in a d m is s ib le hearsay and will not consider this evidence on s u m m a r y judgment. See FED. R. EVID. 801(c) ("`Hearsay' is a s t a t e m e n t , other than one made by the declarant while te s tify in g at the trial or hearing, offered in evidence to prove t h e truth of the matter asserted."); see also see also Thomas v. A t m o s Energy Corp., 223 F. App'x 369, 373 (5th Cir. 2007) ( h o l d i n g that the rule against hearsay applies at the summary j u d g m e n t stage).

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u n d is p u te d that ADC pays Vangireddy two thirds less than it paid Morris ­ a savings of about $ 2 4 ,0 0 0 per year in wages. See Def.'s Facts ¶ 7. Without such cost savings, a decision to fire an e m p lo ye e and immediately hire a replacement would not be sensible under a restructuring theory, a n d would cast doubt on such a proffered reason. But, as implemented, the offshoring of M o r ris 's job is consistent with ADC's legitimate, nondiscriminatory cost-saving reason for her la yo ff because it saved ADC a significant sum of money. T h e Court thus finds that ADC came forward with a legitimate, nondiscriminatory reason fo r Morris's layoff and offered substantial evidence to support and explain this reason. Morris h a s failed to show either that ADC's proffered reason was false, that the layoff plan was im p le m e n te d inconsistently or illogically, or that she was included in a valid layoff for ulterior re a s o n s . ADC's legitimate, nondiscriminatory reason defeats Morris's prima facie case of d i s c r i m i n a t io n ; Morris, in turn, has failed to undermine ADC's reason. Accordingly, summary j u d g m e n t should be granted in ADC's favor. d. N o direct evidence case of discrimination

The McDonnell Douglas framework is not the exclusive means for proving a case of e m p lo ym e n t discrimination. Where direct evidence exists of such wrongs, the burden-shifting te s t may be bypassed in favor of an unfiltered evaluation of the direct evidence. See Martinez, 1 1 3 N.M. at 369. ADC argues that Morris's claim cannot survive summary judgment when her e v id e n c e is evaluated in this manner. See Mot. 9. Morris's evidence that Kittiko looked at her in a demeaning fashion, and that Denise Anderson made allegedly racist comments at the ADC w o rk p la c e , are insufficient to create an issue of fact to be decided by the jury.

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O c ca s io n a l instances of animus may give rise to the inference that an adverse employment a c tio n was motivated by discrimination only when such incidents pass the "stray remarks" test. See Asbury v. Geren, 582 F. Supp. 2d 1323, 1337-38 (D.N.M. 2008) (applying a "stray remarks" t e s t ) ; see also Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400, 404 n.7 (5th Cir. 2001) (h o ld in g that it can be "appropriate to analyze such comments as direct evidence of d i s c rim in a t io n , apart from the McDonnell Douglas framework"). In Brown v. CSC Logic, Inc., th e Fifth Circuit set down a test to distinguish actual evidence of discrimination from mere "stray r e m a r k s , " which are an insufficient basis to support such a conclusion. 82 F.3d at 655-56. This fo u r-p a r t test set examines whether the remarks were: (1) related to the protected characteristic at i s s u e ; (2) proximate in time to the adverse employment action; (3) made by an individual with a u th o rity over the employment action at issue; and, (4) related to the employment action.5 See id. a t 655; see also Auguster, 249 F.3d 405. In the case of Kittiko's allegedly demeaning non-verbal behavior, the evidence fails the s e c o n d prong of the Brown test ­ proximity in time. By Morris's own account, the incident in

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The Fifth Circuit acknowledges that the Supreme Court once o v e r t u r n e d a case involving its "stray remarks" jurisprudence. See Auguster, 249 F.3d at 405 (discussing Reeves v. S a n d e r s o n Plumbing Prods., Inc., 530 U.S. 133 (2000)). But th e Fifth Circuit held that the key issue that the Supreme Court d is c u s s e d in Reeves was not the stray remarks jurisprudence, b u t the question of whether a plaintiff had to introduce further a d d itio n a l evidence of discrimination after setting forth a p r im a facie case and showing that the proffered legitimate e x p l a n a t i o n was pretextual. Id. The Fifth Circuit had held that a plaintiff had to bring forward additional evidence. Id. The S u p r e m e Court reversed, holding that a jury may be permitted t o find for the plaintiff without any additional evidence. Id. The Fifth Circuit emphasized that Reeves did not "overrule our s t r a y remarks jurisprudence" in any way relevant here. Id.

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q u e s tio n took place almost six months before she was laid off. See Morris Dep. 38:12-40:6, 4 1 :1 4 -4 2 :1 6 . Furthermore, it also fails the fourth prong of the Brown test ­ relatedness to the e m p l o ym e n t action ­ because Morris suggests no way in which a demeaning look was p a rtic u la rly related to her inclusion in a mass layoff. Accordingly, this piece of evidence does not r is e beyond the level of a "stray remark," and is thus not enough to create a triable issue of fact. In the case of Denise Anderson's allegedly racist comments, the evidence fails the third p r o n g of the Brown test ­ being made by a person with authority over the plaintiff. The u n c o n te s te d evidence on the record states that Denise Anderson had no supervisory role or a u th o rity over Morris. See Def.'s Facts ¶ 10; see also Dep. of Kate Kittiko 29:8-22 ("Kittiko D e p ." ) (Doc. No. 19-3 Ex. B); see also Pl.'s Facts ¶ 10 (disputing a number of factual assertions in Def.'s Facts ¶ 10, but not disputing the assertion that Denise Anderson had no authority over M o r ris ). Accordingly, this piece of evidence also does not rise beyond the level of a "stray r e m a r k " and is thus not enough to create a triable issue of fact. 2. M o r r is claims retaliation

M o rris also claims that her 2008 layoff was in retaliation for opposing unlawful e m p lo ym e n t practices. See Resp. 4-6. Specifically, Morris avers that her layoff was in retaliation fo r her in-house complaints concerning the allegedly racist attitudes of certain ADC supervisors a n d her association with another ADC employee who was seeking redress for alleged sexual h a ra s s m e n t. Id. ADC argues that Morris does not establish a prima facie case of retaliation and th a t, even if she had, the aforementioned cost-cutting program was the sole and legitimate reason fo r her layoff . See Mot. 10-12.

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T h e NMHRA prohibits retaliating against an employee who opposes an unlawful d is c rim in a to ry employment practice. See N.M. STAT. § 28-1-7(I). An employee's "[o]pposition m a y take many forms . . . [but] if the [employee's] statement does not mention a specific act of d is c rim i n a tio n , the employer must be able to discern from the context of the statement that the e m p l o ye e opposes an allegedly unlawful employment practice." Ocana v. Am. Furniture Co., 1 3 5 N.M. 539, 553 (2004) (internal citations omitted). A retaliation claim may be demonstrated u s i n g the familiar McDonnell Douglas three-step approach, and to present a prima facie case of re ta lia tio n an employee must "show that: (1) she engaged in protected activity; (2) she suffered an a d v e rs e employment action; and (3) there is a causal connection between these two events." Id. a. M o r r is sets forth a prima facie case of retaliation

ADC argues that Morris failed to set forth a prima facie case of retaliation. See Mot. 101 2 . Morris contends that she has set forth such a case. See Resp. 4. ADC contends specifically th a t none of Morris's claimed protected activities ­ such as her various complaints to Ruff in the h u m a n resources department ­ should qualify as protected activities, which would directly u n d e rm in e the first element of a prima facie case of retaliation. See Ocana, 135 N.M. at 553 (s ta tin g that the first element is that the alleged victim "engaged in a protected activity"). ADC a r gu e s that internal employee complaints alleging that a supervisor is generically racist are " in s u ffic ie n t to invoke the anti-retaliation provision of the discrimination laws . . . [instead,] a p l a in t iff must demonstrate a reasonable belief that the conduct she is reporting is unlawful." Mot. 11 (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) and C la r k Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271-72 (2001)).

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A D C reads too much into the cases it cites. In Turner, the Fifth Circuit held a complaint c o n c e rn i n g a single allegedly racist comment could not qualify as a protected activity under fe d e ra l law. See 476 F.3d at 348. Similarly, the Supreme Court held, in Breeden, that a c o m p la in t about a single sexually coarse comment could not qualify as a protected activity. 532 U .S . at 271-72. In Breeden, this was because a claim for retaliation requires at least a reasonable b e l i e f that the employment practices being complained about were unlawful, and a hostile work e n v iro n m e n t claim requires a "severe or pervasive" environment of sexual harassment ­ which a s in gle off-color comment clearly did not produce. Id. Here, however, Morris complained of a number of issues concerning multiple alleged in d ic ia of racism on the part of two individuals ­ Kittiko and Denise Anderson ­ with some s u p e rv is o ry responsibility at ADC.6 See Resp. 4. A hostile work environment claim, by d e fin itio n , requires a steady drumbeat of harassing and interfering overt behavior to succeed. See B r e e d e n , 532 U.S. at 271-72. By contrast, race or national origin discrimination requires no such m a n i fe s tly continuous pattern of offensive behavior to be real ­ an employer can make a d is c rim i n a to ry employment decision covertly and without ever uttering a single off-putting

6

Morris, in her deposition, gives two examples of allegedly r a c i s t comments made by Denise Anderson. See Morris Dep. 6 8 :2 3 -6 9 :1 0 . ADC points out that Morris admits to not r e c o u n tin g these specific comments when making her c o m p l a in t to Ruff, and thus ADC concludes that her c o m p la i n ts about Denise Anderson did not actually concern t h e subject of racism. See Mot. 12. This argument is premised o n an overly selective view of the evidence, however, as M o r r is insists that she made the nature of her complaint c o n c e r n i n g Denise Anderson clear in her discussion with Ruff, in c l u d in g the contention that Denise Anderson "was saying a lo t of derogatory remarks against Mexicans in the office." See M o r r is Dep. 61:10-21.

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re m a rk , racial epithet or negative statement. See EEOC v. Navy Fed. Credit Union, 424 F.3d 3 9 7 , 407 (4th Cir. 2005) (finding that an employer had developed an elaborate secret plot to fire a n employee for "unlawful [discriminatory] reasons," and then "cover up" said reasons by issuing fa l s e l y positive performance evaluations of the employee in question). Morris made formal w o rk p la c e complaints about perceived racism. Racism in the workplace can silently lead to or m a n i fe s t itself as unlawful employment practices, and New Mexico law takes a fairly liberal a p p ro a c h to defining "opposition" to an unlawful employment practice. See Ocana, 135 N.M. at 5 5 3 . For these reasons, the Court is not swayed by ADC's argument that Morris's activities were u n p r o t e c t e d . Thus, Morris has set out a prima facie case of retaliation, and summary judgment is n o t be granted to ADC on the grounds that Morris has failed at this stage. b. A D C sets forth a legitimate, nondiscriminatory reason which M o r r is fails to rebut

A s discussed above, ADC sets forth the legitimate, nondiscriminatory reason of costc u t ti n g to justify Morris's layoff and shows that it laid off a substantial number of people in late 2 0 0 8 because of difficult economic conditions. Morris attempts to undermine this reason, but, as d i s c u s s e d above, the Court finds these arguments unconvincing. ADC further argues, in this c o n n ec tio n , that Morris's layoff could not have been motivated by retaliation because Kittiko, the s u p e rv i s o r who selected her for inclusion in the layoff, was not aware of the conversations that M o rris had with Ruff concerning allegations of racism. See Mot. 12. Morris responds by arguing th a t the evidence only shows that Kittiko, when deposed, could not remember if she had been in fo r m e d of said conversations, and that it would be inappropriate to infer from that evidence that K ittik o was indeed ignorant of these complaints. See Resp. 6. However, as Morris acknowledges

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in this context, even if the Court disregards the contention that Kittiko had no knowledge of the c o m p la in ts at issue, this would only help to establish Morris's prima facie case of retaliation. Id. a t 4-6. It would not serve to bolster her case at the later stages of the McDonnell Douglas a n a lys is . Because the Court has already concluded that Morris set forth a prima facie case, but h o ld s that her case fails on the showing-of-pretext prong, this issue does not need to be decided s p e c i fi c a l l y. III. C O N C L U SIO N B e c a u s e Morris is unable to demonstrate that there is an issue of fact as to whether ADC's legitimate, nondiscriminatory reason was mere pretext for unlawful discrimination, and b e c a u s e the evidence she brings cannot support a direct evidence case of discrimination, ADC's M o t io n for Summary Judgment (Doc. No. 18) is GRANTED. S O ORDERED. S I G N E D on this 10 th day of August 2010.

______________________________________ K A T H LE E N CARDONE U N IT E D STATES DISTRICT JUDGE

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