FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. No. 1:14-CV-00252-MCA-SCY)
Karen Kilgore, Cuddy & McCarthy, LLC, Santa Fe, New
Mexico, appearing for Appellant.
A. Salganek (Paula G. Maynes, with him on the brief), Miller
Stratvert, P.A., Santa Fe, New Mexico, appearing for
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
MATHESON, Circuit Judge.
John DePaula appeals from the district court's order
granting summary judgment in favor of his employer,
Defendant-Appellee Easter Seals El Mirador
("ESEM"), on Mr. DePaula's various employment
discrimination claims arising from his termination. ESEM
showed that it fired Mr. DePaula due to its financial
condition and his performance issues. Mr. DePaula could not
rebut these reasons or otherwise show they were pretextual.
Exercising jurisdiction under 28 U.S.C. § 1291, we
present the following facts in the light most favorable to
Mr. DePaula, the non-movant, unless contradicted by the
record. Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1251 (10th Cir. 2015).
a nonprofit New Mexico corporation that provides services and
facilities for developmentally disabled adults. Mr. DePaula
worked at ESEM for 22 years, from August 1990 until June
2012. In 1994, he was promoted to Deputy Director of Programs
and/or Clinical Services and oversaw several aspects of
ESEM's operation. For 21 of his 22 years with ESEM, Mark
Johnson, ESEM's CEO, was Mr. DePaula's direct
Supervision by Mr. Johnson
2009 and 2010, Mr. DePaula received several memoranda from
Mr. Johnson that documented and summarized conversations
between them about Mr. DePaula's
memorandum expressed Mr. Johnson's disapproval of Mr.
DePaula's performance, leadership, and treatment of
particular employees. The memoranda noted persistent problems
"that apparently have been f[e]stering for a long period
of time" and that required Mr. Johnson to
"continually intervene to solve day to day programmatic
operational issues." App. at 604-05. They also provided
specific performance suggestions and expressed disapproval
that Mr. DePaula had not implemented them. For example:
[T]hese are some specific examples of how I need you to take
a stronger, more organized leadership role. I cannot continue
to have resolutions to issues be delayed, as it seems to have
been becoming a pattern with your approach to problem
Id. at 609. Mr. Johnson repeatedly told Mr. DePaula
these changes were essential to Mr. DePaula's success at
Pay Raises and Deduction
DePaula received a "onetime bonus of $4, 000" in
June 2009 and a "onetime leave payout for non[-]used
accrued leave in the amount of $2, 100" in September
2009. Id. at 762. He also received a $12, 000
"wage increase" in June 2010, made retroactive to
July 2009. Id. at 763.
March 2012, ESEM deducted $8, 000 from Mr. DePaula's pay
to compensate for a Civil Monetary Penalty ("CMP")
incurred by ESEM in November 2011 due to Mr. DePaula's
failure to submit a timely report to the Department of Health
("DOH"). Mr. DePaula took "ultimate
responsibility for the late filing." Id. at
ESEM's Financial Difficulties and Hiring Ms.
2012, ESEM was experiencing financial difficulties, including
"cash flow" problems due at least in part to late
incoming checks and reimbursements. Id. at 817. In
response, ESEM focused on operations, cutbacks, and
"positions having to be left empty." Id.
January 2012, the non-profit Foundation of Knights Templar
("FOKT") contributed $150, 000 to ESEM. FOKT's
mission includes supporting ESEM, which it may do through
financial contributions-though it is not "obligated or
required" to do so. Id. at 307.
January 2012, Mr. Johnson hired Patsy Romero as ESEM's
Chief Operating Officer. She was charged with implementing
cost containment measures.
April 19, 2012 meeting, Mr. Johnson assured senior management
that ESEM was in a better financial position "than other
providers who are now taking a $2 million loss."
Id. at 818. But he also stated ESEM was
"breaking even, " the next year would be a
"rebase year, " and ESEM would have to "find a
way to spend creatively, to get rates up, perhaps by spending
in the latter part of the fiscal year." Id.
Relationship with Mr. Quintana
2011, ESEM employee Ken Quintana became Incident Manager, a
position responsible for providing investigation reports to
the DOH. Until December 2011, Mr. DePaula supervised Mr.
Quintana. During Mr. DePaula's supervision, Mr. Quintana
was diagnosed with cancer.
Ms. Romero was hired in January 2012, she began supervising
Mr. DePaula and Mr. Quintana. Mr. Quintana claimed Ms. Romero
treated him badly as a response to the leave he needed to
care for his cancer. He emailed Mr. DePaula "at least
five emails . . . complaining about" Ms. Romero's
interactions with him. Id. at 756; id. at
777-84. Mr. DePaula attested that he "talked to"
Mr. Johnson and ESEM's Human Resources ("HR")
department about Mr. Quintana's complaints,
"tr[ying] to protect" him. Id. at 756. Mr.
DePaula also helped Mr. Quintana with his reports to mitigate
Ms. Romero's disapproval of Mr. Quintana's work
product. Once Ms. Romero learned of this assistance in
December 2011, she instructed Mr. DePaula to stop.
Mr. DePaula Changes Positions
party monitoring company evaluated ESEM and advised that Mr.
DePaula did not have the clinical credentials to continue as
the Deputy Director of Clinical Services. In response, in
March 2012, Ms. Romero moved Mr. DePaula into the position of
Risk Manager/Incident Manager/Director of Risk Management.
His salary was not decreased.
Mr. DePaula Takes FMLA Leave
thereafter, on March 19, 2012, Mr. DePaula requested 12 weeks
of leave under the Family and Medical Leave Act
("FMLA") to care for his mother, who had been
diagnosed with dementia. ESEM granted Mr. DePaula's
request, and the leave began on March 30, 2012.
and Mr. DePaula had different understandings about when Mr.
DePaula's FMLA leave would end. Mr. DePaula believed his
leave would end on June 29, 2012, but ESEM thought it would end
on June 22, 2012-12 weeks from March 30, 2012. This
discrepancy does not affect our analysis.
Mr. DePaula's Termination
mid-May 2012, Ms. Romero "decided to eliminate" Mr.
DePaula's Risk Manager/Incident Manager/Director of Risk
Management position. Id. at 671. She interviewed
candidates for "at least" the Incident Manager part
of his job. Aplt. Br. at 5.ESEM hired a new candidate by the
time of its senior management meeting on June 21, 2012. The
meeting minutes announced several organizational and
structural changes, including the elimination of the Incident
Manager and Risk Management positions. The minutes also
stated Ms. Jennifer Wadley "is being hired to cover
Incident Management." App. at 822. Ms. Wadley was then
36 years old.
25, 2012, Ms. Romero notified Mr. DePaula that his employment
at ESEM had been terminated. The termination letter explained
that his position had been eliminated for budgetary
reasons. The letter outlined ESEM's efforts to
move Mr. DePaula to the Director of Clinical Services and
Risk Manager positions, but stated that "ESEM can no
longer afford to create positions for employees that are not
needed or critical to the delivery of services to our clients
and program management." Id. at 651.
letter also referenced Mr. Johnson's dissatisfaction with
Mr. DePaula's performance:
I must observe, however, that over the past four years of
ESEM's exchanges and interactions with its licensing
authority, the Department of Health, ESEM received notice
that your continued management as Deputy Director, later as
the Manager of Behavioral Health, was unacceptable because of
program errors and lack of program oversight and compliance
which occurred under your watch.
DePaula's amended complaint, the operative one here,
alleged 14 claims against ESEM. The district court
granted summary judgment to ESEM on all 14. Mr. DePaula
appeals only eight of those claims. Aplt. Br. at 23.
Mr. DePaula's Complaint and ESEM's Motion for
DePaula's amended complaint alleged the following 14
federal and state claims-all concerning his termination:
. Count 1: Gender Discrimination under the
New Mexico Human Rights Act ("NMHRA");
. Count 2: Gender Discrimination under Title
VII of the Civil Rights Act of 1964;
. Count 3: Age Discrimination under the
. Count 4: Age Discrimination under the Age
Discrimination in Employment Act of 1967 ("ADEA");
. Count 5: Discrimination Based on
Association with a Person with a Disability/Serious Medical
Condition ("association discrimination") under the
. Count 6: Association Discrimination under
the Americans with Disabilities Act of 1990
. Count 7: Retaliation under the NMHRA;
. Count 8: "Wrongful/Retaliatory
Discharge" under New Mexico law;
. Count 9: Breach of Covenant of Good Faith
and Fair Dealing under New Mexico law;
. Count 10: Negligent Retention and
Supervision under New Mexico law;
. Count 11: Intentional Interference with
Business Relations under New Mexico law;
. Count 12: "Prima Facie Tort" (as
an alternative charge) under New Mexico law;
. Count 13 (two claims):
Retaliation for taking leave under the Family Medical Leave
Act ("FMLA") ("FMLA retaliation"); and b.
Interference with exercise of FMLA rights ("FMLA
ESEM's Motion for Summary Judgment and District
filed a motion for summary judgment on July 2, 2015. The
district court granted the motion on all 14 of Mr.
DePaula's claims as follows:
. Counts 1 and 2-Gender Discrimination
claims under the NMHRA and Title VII: Mr. DePaula failed
to establish a prima facie showing that ESEM had
discriminated against men because the evidence presented did
not "support the suspicion that [ESEM was] that unusual
employer who discrimate[d] against the majority." Op. at
. Counts 3 and 4-Age Discrimination
under the NMHRA and ADEA: ESEM had provided two
legitimate, nondiscriminatory reasons for Mr. DePaula's
termination: (1) ESEM's financial difficulties, and (2)
Mr. Johnson's dissatisfaction with Mr. DePaula's
performance. Mr. DePaula failed to demonstrate ESEM's
proffered justifications were pretextual.
. Counts 5 and 6-Association
Discrimination under the NMHRA and ADA: Mr. DePaula
failed to establish a prima facie case because he did not
show he was terminated due to his association with his mother
and Mr. Quintana. The district court noted that even assuming
he could establish a prima facie case, ESEM provided
legitimate reasons for Mr. DePaula's termination and Mr.
DePaula failed to show those reasons were pretextual.
. Count 7-Retaliation under the
NMHRA: First, Mr. DePaula failed to establish a prima
facie case of retaliation for reporting discrimination,
retaliation, harassment, and a hostile work environment
because there was no evidence he complained of Mr.
Quintana's treatment to ESEM. Second, he failed to
establish a prima facie case of retaliation for helping Mr.
Quintana because the temporal proximity between his help and
his termination was insufficient to establish retaliation.
Third, Mr. DePaula's claim for retaliation for requesting
and taking FMLA leave failed consistent with his FMLA
retaliation claim in Count 13. The district court's
conclusions were "further supported" by ESEM's
production of legitimate reasons for Mr. DePaula's
termination and Mr. DePaula's failure to show those
reasons were pretextual. Op. at 21.
. Count 8-Wrongful/Retaliatory
Discharge: Because Mr. DePaula's
wrongful/retaliatory discharge claim was premised on the same
theory as his FMLA interference and retaliation claims in
Count 13, he could seek redress for the wrong under the
FMLA. He was thus precluded from raising a
separate wrongful/retaliatory discharge claim for the same
. Count 9-Breach of Covenant of Good
Faith and Fair Dealing: This cause of action is not
available to at-will employees, like Mr. DePaula.
Count 10-Negligent Retention and
Supervision: Mr. DePaula failed to show that ESEM's
hiring or supervision of Ms. Romero created an unreasonable
risk of injury to him, or other ESEM employees, or that ESEM
failed to ...