MATHESON, Circuit Judge.
Plaintiff-Appellant 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 affirm.
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).
ESEM is 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 supervisor.
Supervision by Mr. Johnson
Between 2009 and 2010, Mr. DePaula received several memoranda from Mr. Johnson that documented and summarized conversations between them about Mr. DePaula's performance.
Each 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."
Id. at 609. Mr. Johnson repeatedly told Mr. DePaula these changes were essential to Mr. DePaula's success at ESEM.
Pay Raises and Deduction
Mr. 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.
In 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 757.
ESEM's Financial Difficulties and Hiring Ms. Romero
In 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.
In 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.
Also in January 2012, Mr. Johnson hired Patsy Romero as ESEM's Chief Operating Officer. She was charged with implementing cost containment measures.
At an 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
In 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.
When 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
A third 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
Shortly 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.
ESEM 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,
Mr. DePaula's Termination
In 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.
On June 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 also referenced Mr. Johnson's dissatisfaction with Mr. DePaula's performance:
Mr. DePaula's amended complaint, the operative one here, alleged 14 claims against ESEM.
Mr. DePaula's Complaint and ESEM's Motion for Summary Judgment
Mr. DePaula's amended complaint alleged the following 14 federal and state claims—all concerning his termination:
ESEM's Motion for Summary Judgment and District Court Order
ESEM 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:
Mr. DePaula's Appeal
Mr. DePaula timely appealed the district court's grant of summary judgment to ESEM. He challenges the disposition of the following eight claims:
Of these claims, Mr. DePaula's brief is inadequate as to part of Count 7 and fully inadequate as to Count 8.
Regarding Count 7, Mr. DePaula's amended complaint alleged three theories to demonstrate retaliation under the NMHRA: (1) reporting discrimination, retaliation, harassment and hostile work environment to ESEM; (2) requesting accommodation for Mr. Quintana; and (3) requesting FMLA leave. The district court granted summary judgment to ESEM on all three theories. On appeal, Mr. DePaula's brief makes one vague and confusing reference to his retaliation claim under a "Disability Association Claims" heading, stating: "The District Court erred in granting summary judgment tin [sic] ESEM's favor . . . based on an incorrect analysis and/or temporal proximity." Aplt. Br. at 18.
We decline to consider Mr. DePaula's first and second theories of Count 7 retaliation because any potential argument is inadequately briefed. See Leathers v. Leathers, ___ F.3d ___, 2017 WL 1573809, at *14 (10th Cir. May 2, 2017) (declining to consider issue when appellant "cite[d] to no legal authority, and his discussion consists largely of tangential references to other substantive areas of the case"); Birch, 812 F.3d at 1249 (declining to consider arguments that are "vague, confusing, conclusory, and unsupported by record evidence"). Mr. DePaula does not explain what is "incorrect" about the district court's analysis. Aplt. Br. at 18.
Because the district court analyzed Mr. DePaula's third NMHRA retaliation theory, which was based on his request for FMLA leave, in conjunction with its discussion of his similar federal FMLA retaliation claim (Count 13), and because Mr. DePaula has adequately briefed his federal FMLA retaliation argument on appeal, we consider his Count 7 retaliation claim as to the FMLA-request theory only. Analyzing his state and federal claims together is consistent with the New Mexico Supreme Court's consideration of "federal civil rights adjudication for guidance in interpreting the NMHRA." Ocana v. Am. Furniture Co., 91 P.3d 58, 68 (N.M. 2004); see also Garcia v. Hatch Valley Pub. Sch., 369 P.3d 1, 3 (N.M. Ct. App. 2015) ("When interpreting the NMHRA our Supreme Court has looked to federal decisions for guidance.").
Count 8 is inadequately briefed and not properly before us. Under the "Disability Association Claims" heading, Mr. DePaula states only: "The District Court dismissed Plaintiff's claims for wrongful/retaliatory discharge because Plaintiff also sought redress for FMLA interference and retaliation, but the District Court dismissed those FMLA claims." Aplt. Br. at 17-18. Mr. DePaula does not explain why he believes the district court erred, or why this claim is related to his "Disability Association Claims."
In sum, our analysis addresses seven of Mr. DePaula's claims:
We affirm the district court's grant of summary judgment on six of Mr. DePaula's claims because ESEM proffered legitimate, nondiscriminatory, and non-retaliatory reasons for his termination and Mr. DePaula failed to show those reasons were pretextual. We affirm on the remaining FMLA interference claim because ESEM showed Mr. DePaula's termination was not related to the exercise of his FMLA rights.
Standard of Review
"We review a grant of summary judgment de novo, drawing all reasonable inferences and resolving all factual disputes in favor of the non-moving party." Birch, 812 F.3d at 1251 (quoting Yousuf v. Cohlmia, 741 F.3d 31, 37 (10th Cir. 2014)). Summary judgment shall be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies to six of Mr. DePaula's claims:
The McDonnell Douglas framework does not apply to Mr. DePaula's remaining claim on appeal for FMLA interference (Count 13), which we will analyze separately. See Brown v. ScriptPro, LLC, 700 F.3d 1222, 1227 (10th Cir. 2012) (stating "the McDonnell Douglas burden shifting analysis does not apply" to FMLA interference claims).
a. General Legal Background
A plaintiff can show intentional discrimination either by direct evidence of discrimination or by indirect evidence. Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013). Proof of discrimination by indirect evidence follows the three-part burden-shifting framework articulated in McDonnell Douglas. Id.
McDonnell Douglas framework
Under the three-part McDonnell Douglas framework, the burden of production shifts from the plaintiff to the defendant and back to the plaintiff. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). But the plaintiff bears the ultimate burden of persuasion to show discrimination. Burdine, 450 U.S. at 256; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
Because much of our analysis concerns the pretext element of McDonnell Douglas, we provide additional legal background.
To survive a motion for summary judgment at the pretext step, the plaintiff must present evidence to establish there is a genuine issue of material fact as to whether the defendant's articulated reason for the adverse employment action was pretextual. Tabor, 703 F.3d at 1218; Kendrick, 220 F.3d at 1225.
A plaintiff may show pretext by demonstrating the "proffered reason is factually false," or that "discrimination was a primary factor in the employer's decision." Tabor, 703 F.3d at 1218; Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1194 (10th Cir. 2016). This is often accomplished "by revealing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reason, such that a reasonable fact finder could deem the employer's reason unworthy of credence." Tabor, 703 F.3d at 1216 (alterations and quotations omitted). A plaintiff may also show pretext by demonstrating "the defendant acted contrary to a written company policy," an unwritten company policy, or a company practice "when making the adverse employment decision affecting the plaintiff." Kendrick, 220 F.3d at 1230.
Although we may consider all of the foregoing matters, "[w]e may not second guess the business judgment of the employer." Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017) (quotations omitted). Evidence that the employer "should not have made the termination decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer's explanation is unworthy of credibility." Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169-70 (10th Cir. 2007). "In determining whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision," and "do not look to the plaintiff's subjective evaluation of the situation." C.R. England, 644 F.3d at 1044 (citations and quotations omitted). Instead of asking whether the employer's reasons "were wise, fair or correct," the relevant inquiry is whether the employer "honestly believed those reasons and acted in good faith upon those beliefs." Swackhammer, 493 F.3d at 1170 (quotations omitted).
We assume without deciding that Mr. DePaula established a prima facie showing for his six claims (Counts 3-7, 13) alleging age discrimination (state and federal), association discrimination (state and federal), retaliation (state), and FMLA retaliation (federal). The following analysis concludes that Mr. DePaula has failed to establish a genuine issue of material fact that ESEM's two proffered reasons for Mr. DePaula's termination were pretextual. We thus affirm the grant of summary judgment for ESEM on each of Mr. DePaula's burden-shifting claims.
a. ESEM's legitimate, nondiscriminatory reasons for termination
ESEM had two legitimate, nondiscriminatory reasons for terminating Mr. DePaula's employment: (1) ESEM's financial difficulty and restructuring and (2) Mr. DePaula's inadequate performance.
ESEM's financial state
ESEM has successfully articulated that its financial hardship was a "legitimate, nondiscriminatory reason" for its decision to terminate Mr. DePaula. Kendrick, 220 F.3d at 1226. The financial hardship rationale was based on the termination letter, Ms. Romero's deposition and affidavit, the chief financial officer's affidavit, minutes from senior management meetings, and Mr. DePaula's deposition.
Mr. DePaula's termination letter relied primarily on ESEM's "cost saving" measures to combat its financial hardship. App. at 651. The first paragraph of the letter explained that ESEM had decided to eliminate his position because "ESEM is in the process of budget cutting and cost saving in order to live within its projected revenues and cash flow," and thus, there was no need for a separate Risk Manager position. Id. ESEM could "no longer afford" to create or maintain positions that were "not needed or critical to the delivery of services to our clients and program management." Id.
Ms. Romero attested in her affidavit and testified at her deposition that Mr. DePaula was terminated due to ESEM's financial difficulties. She said:
Ms. Romero also described in her affidavit and at her deposition the organizational changes at ESEM that occurred in response to the financial problems. At her deposition, she stated: "At that time we were consolidating a lot of the positions and a lot of the duties. So many of us at the agency held two or three [jobs]." Id. at 622. In her affidavit, she attested that she eliminated at least 12 positions during 2012 (though most "did not involve terminations, but involved closing vacant positions and not refilling them following resignation or retirement"). Id. at 671-72. She also "set in motion job eliminations and terminations in 2013 to continue on program cost containment to bring [ESEM's] budget into balance." Id. at 672.
ESEM submitted Chief Financial Officer Mike Easley's affidavit, which addressed the nonprofit's financial difficulties:
The minutes from the January 2012 senior management meeting show that ESEM was "dealing with checks not being paid and reimbursements behind schedule, which have caused problems with cash flow." Id. at 817. They further explain that FOKT's contribution would help with cash flow until the other checks came in. The April 2012 senior management meeting minutes reflect Mr. Johnson's statement that although ESEM was "breaking even" and doing better than other providers experiencing a two-million-dollar loss, the next year would need to be a "rebase year" and would require creative spending to get rates up. Id. at 818.
Mr. DePaula's own testimony regarding the months preceding his termination showed that ESEM's financial difficulties were genuine. He explained ESEM "was having major cash flow issues. The staff who were calling me would tell me that utilities were turned off, and there were all kinds of issues because of cash flow problems." Id. at 648.
Based on the foregoing, we agree with the district court that ESEM's financial circumstances provided a legitimate, nondiscriminatory reason for Mr. DePaula's termination. See Jones v. Unisys Corp., 54 F.3d 624, 631-32 (10th Cir. 1995) (stating that financial hardship resulting in workforce reduction as part of cost-cutting measures constituted a legitimate, nondiscriminatory reason for plaintiff's termination). As previously noted, Mr. DePaula's termination letter cited this reason for why he was being fired.
Mr. DePaula's performance
Mr. DePaula's performance issues provided an additional legitimate and nondiscriminatory reason for ESEM's decision to terminate Mr. DePaula's employment.
Although Mr. DePaula's termination letter focused on ESEM's financial hardship, it also "observe[d]"—and spent almost equal space—on Mr. DePaula's performance issues. App. at 651. It explained that "over the past four years of ESEM's exchanges . . . with its licensing authority, the Department of Health, ESEM received notice that [Mr. DePaula's] continued management . . . was unacceptable because of program errors and lack of program oversight and compliance which occurred under [his] watch." Id. It also mentioned the "other, more specific, past instances of [performance] problems" Ms. Romero or Mr. Johnson had previously discussed with Mr. DePaula, but noted that there was no reason to go over those instances in the letter. Id.
Mr. Johnson's memoranda repeatedly criticized Mr. DePaula's performance,
These performance issues negatively affected ESEM. Mr. Johnson stated in his affidavit that "[i]n 2009 to 2011, through the negligence of John DePaula in performing his management duties at Easter Seals, ESEM came close to losing its licenses for the houses it operated," and that "[e]ach license represents almost $1 Million Dollars of revenue stream to [ESEM]." Id. at 678-79. Mr. Johnson further stated that Mr. DePaula was "personally responsible to maintain full occupancy of the houses," and his failure to do so "jeopardiz[ed] stable finances for [ESEM]." Id. at 679-80.
Mr. DePaula admitted that his lack of oversight caused ESEM to be fined $8,000, which was ultimately deducted from his salary. He explained that after the state said it had not received a particular report, he discovered he had not sent it. He "accept[s] responsibility for not sending that report." Id. at 645; see also id. at 757 (stating in his affidavit that he "certainly took ultimate responsibility for the late filing").
The problems with Mr. DePaula's performance provided a legitimate, nondiscriminatory reason for Mr. DePaula's termination. See Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984) (stating that "insubordination could serve as a legitimate non-discriminatory reason for discharge"); see also Brown, 700 F.3d at 1227-28 (finding employer's identification of detailed, specific performance issues and evidence of continued problems to be legitimate reason for termination within FMLA interference context). Although she did not rely exclusively on this reason, Ms. Romero included Mr. DePaula's performance issues in the termination letter.
b. Mr. DePaula's failure to demonstrate pretext
Mr. DePaula failed to establish a genuine issue of material fact as to whether ESEM's proffered reasons for his termination were pretextual. His arguments either lack record support or do not render ESEM's proffered reasons to be so weak, implausible, inconsistent, incoherent, or contradictory that a reasonable factfinder could find them "unworthy of credence." Tabor, 703 F.3d at 1218. We reject each of his pretext arguments.
Mr. DePaula's arguments regarding ESEM's financial state
Mr. DePaula makes several factual arguments challenging ESEM's financial justification for his termination. None render ESEM's asserted financial state to be implausible or unworthy of belief. Tabor, 703 F.3d at 1218.
In sum, Mr. DePaula has failed to show a genuine issue of material fact that ESEM's financial rationale for the elimination of his position was a pretext for his termination.
Mr. DePaula's arguments regarding performance
Mr. DePaula's failure to demonstrate a factual dispute as to whether ESEM's financial justification was pretextual would be sufficient to uphold summary judgment for ESEM. But he similarly has failed to raise doubt about ESEM's dissatisfaction with his performance.
Mr. DePaula has failed to create a genuine issue of material fact that ESEM's reliance on Mr. DePaula's poor performance to terminate him was pretextual.
Mr. DePaula's arguments regarding FMLA retaliation
Mr. DePaula raises additional arguments on appeal regarding pretext that are specific to his FMLA retaliation claim. All of them fail.
Mr. DePaula first argues the district court failed to recognize that the temporal proximity between his taking FMLA leave and his termination supports an inference of pretext. "Although we may consider evidence of temporal proximity—typically used to establish a prima facie case—in analyzing pretext, temporal proximity alone is insufficient to raise a genuine issue of material fact concerning pretext." Proctor v. United Parcel Serv., 502 F.3d 1200, 1213 (10th Cir. 2007) (citations omitted); Metzler, 464 F.3d at 1172 ("[T]his court has refused to allow even very close temporal proximity to operate as a proxy for the evidentiary requirement that the plaintiff demonstrate pretext." (quotations and alterations omitted)). Thus, "temporal proximity can support a finding of pretext only in combination with other evidence of pretext." Lobato v. N.M. Env't Dep't, 733 F.3d 1283, 1293 (10th Cir. 2013); Metzler, 464 F.3d at 1172 ("To raise a fact issue of pretext, [the plaintiff] must . . . present evidence of temporal proximity plus circumstantial evidence of retaliatory motive."). Because Mr. DePaula's other pretext arguments fail, "close temporal proximity alone is of no moment in this case." Lobato, 733 F.3d at 1293.
Mr. DePaula appears to have forfeited his other pretext arguments regarding his FMLA retaliation claim. In his response to ESEM's motion for summary judgment, he raised three of them in the context of discussing his FMLA interference claim. He now contends, without arguing for plain-error review, that they support a finding of pretext regarding his FMLA retaliation claim. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (refusing to allow a party to "lose in the district court on one theory of the case, and then prevail on appeal on a different theory"); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (failing to argue plain error on appeal "marks the end of the road" for reversal on an argument not first presented to the district court). Even if Mr. DePaula's summary judgement opposition could be read as having made these arguments as to both his FMLA interference and retaliation claims, they nonetheless fail on appeal.
In addition to Mr. DePaula's failure to show how any of these arguments create an issue of pretext, the arguments also do not overcome or cast doubt on ESEM's financial hardship or Mr. DePaula's performance reasons for his termination.
* * * *
Assuming without deciding Mr. DePaula established a prima facie case for his six burden-shifting claims (Counts 3-7, 13), ESEM has proffered two legitimate and nondiscriminatory justifications for terminating Mr. DePaula: (1) ESEM's financial hardship; and (2) Mr. DePaula's performance issues. Mr. DePaula has failed to show that there was a genuine dispute of material fact as to whether either of these reasons was pretextual or "unworthy of belief." Brown, 700 F.3d at 1229; Tabor, 703 F.3d at 1218.
FMLA Interference (Count 13)
As explained above, the McDonnell Douglas burden-shifting framework does not apply to Mr. DePaula's claim for FMLA interference. See Brown, 700 F.3d at 1227. Applying the applicable law, we affirm the district court's grant of summary judgment.
To establish an FMLA interference claim, "an employee must show that (1) he was entitled to FMLA leave, (2) an adverse action by his employer interfered with his right to take FMLA leave, and (3) this adverse action was related to the exercise or attempted exercise of the employee's FMLA rights." Id. at 1226. "A deprivation of these rights is a violation regardless of the employer's intent, and the McDonnell Douglas burden shifting analysis does not apply." Id. at 1226-27.
We assume Mr. DePaula could establish the first two elements and focus on the third. Under that element, an "employee may be dismissed, preventing her from exercising her statutory right to FMLA leave[,] . . . if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave." Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1006 (10th Cir. 2011) (alterations and quotations omitted). An "employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request." Id. (quotations omitted) (citing Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir. 1998)).
The district court correctly granted summary judgment to ESEM on this claim. Assuming Mr. DePaula could satisfy the first two elements of his FMLA interference claim, ESEM has demonstrated that he would have been terminated regardless of his request for, or taking of, FMLA leave, and Mr. DePaula has not proved otherwise. As outlined above, ESEM provided evidence of two alternative reasons for Mr. DePaula's termination: (1) ESEM's financial hardship and (2) Mr. DePaula's performance issues. Even if he was fired during his FMLA leave, ESEM has demonstrated that Mr. DePaula would have been fired irrespective of taking that leave. Accordingly, ESEM's termination decision was not "related to" the exercise of Mr. DePaula's FMLA rights. Twigg, 659 F.3d at 1006.
We affirm the grant of summary judgment in favor of ESEM.
Id. at 604.
Id. at 610.
Id. at 651.
The district court resolved Mr. DePaula's association discrimination claims (state and federal) (Counts 5 and 6) on his failure to establish a prima facie case, but also noted he failed to show pretext. Op. at 19. We affirm on the lack-of-pretext ground.
We thus analyze Mr. DePaula's NMHRA association discrimination claim under the McDonnell Douglas framework. See Sonntag v. Shaw, 22 P.3d 1188, 1197 (N.M. 2001) (generally asserting that the New Mexico Supreme Court applies McDonnell Douglas to "determin[e] the sufficiency of a discrimination claim under the NMHRA"); Ocana v. Am. Furniture Co., 91 P.3d 58, 68 (N.M. 2004) (explaining that "when considering claims under the NMHRA, [the New Mexico Supreme Court] may look at federal civil rights adjudication for guidance in interpreting the NMHRA").