Laul v. L. Alamos Nat'l Labs. (309 F. Supp. 3d 1119, 2016)

JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE

In DEFENDANT LOS ALAMOS NATIONAL SECURITY, LLC'S MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Doc. No. 67) (Motion), Los Alamos National Laboratories (LANS) seeks dismissal of all of Plaintiff's claims brought under the Age Discrimination in Employment Act ( 29 U.S.C. § 621 et seq. ) (ADEA), Title VII ( 42 U.S.C. § 2000e-2(a)(1) ), and the New Mexico Human Rights Act ( NMSA 1978 § 28-1-1 et seq. ) (NMHRA). Plaintiff Dr. Jagdish C. Laul (Plaintiff) opposes the Motion. See PLAINTIFFS [sic] RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 70) (Response). LANS filed a reply brief. See LOS ALAMOS NATIONAL SECURITY, LLC'S REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 73) (Reply).

I. STANDARD OF REVIEW

Summary judgment may 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). When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Intl., Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). The party seeking summary judgment bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc. , 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). Once the movant meets this burden, Rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the Court's "role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Foster v. Alliedsignal, Inc. , 293 F.3d 1187, 1195 (10th Cir. 2002).

II. BACKGROUND

A. Work History 1999-2009

Plaintiff was born in India. (Compl. ¶ 6.) In 1974, Plaintiff became a United States citizen. (Id. ) In October 1999, Plaintiff began working at LANS as a Principal Safety Engineer in the Environmental, Safety & Health Division. (Mot. Undisputed Material Facts (UMF) 1; Compl. ¶ 5.) Plaintiff was 60 years old when he was hired at LANS. (UMF 1; Compl. ¶ 6.)

On October 8, 2002, Plaintiff's supervisor, Eric McNamara, made positive statements in Plaintiff's yearly evaluation for fiscal year 2002:

J.C. is a diligent worker who eagerly accepts all assignments and works hard to complete these assignments in a timely fashion. He cares about providing good support to his customers and works hard to be an effective team member.

In the same evaluation, however, Mr. McNamara reported some negative feedback about Plaintiff's work and interpersonal skills:

[Plaintiff] had a number of mildly negative comments from customers regarding the technical safety analysis work he did and also for his interpersonal skills. The technical comments were due to his lack of judgment and understanding in performing safety analysis. The interpersonal skills comments resulted primarily from his mannerisms and insensitivity towards customers. In particular, several customers stated that he is "tenacious" to the point of distraction.

To his credit, once notified by his management, he has actively worked on resolving his customers' concerns ... as well as to improve his safety analysis techniques.

(Mot. Ex. A-1.)

In Plaintiff's evaluations for subsequent years, his supervisors reported concerns about Plaintiff's interpersonal relations. See Mot. Ex. A-2 ("personnel interactions needed some improvement and JC has been working to that end."); Mot. Ex. A-3 ("some personnel interaction issues still persist ... I recommend that JC attend some training on interpersonal relations"); and Mot. Ex. A-4 ("there was some difficulty in his teaming and customer interaction.... [T]here was negative feedback ... regarding JCs [sic] ability to successfully work with facility managers and tenants."). But, in those same years, Plaintiff received many positive comments. See Mot. Ex. A-2 ("JC continues to provide dedicated, timely, and effective services to varied safety basis customers."); Mot. Ex. A-3 ("JC continues to provide dedicated, timely, and effective services to varied safety basis customers.... JC published a paper on chemical categorization practices. He received a commendation letter from DOE ..."); and Mot. Ex. A-4 ("Positive feedback was received from the SB-Waste Group Leader regarding [Plaintiff's] individual performance in working on waste site and facility technical issues, and from the Engineering Manager for MCFOD for work on BTF."). In Plaintiff's evaluation for fiscal year 2006, his supervisor, James L. Tingey, mentioned a concern about Plaintiff's work product and that "[t]he FOD requested minimizing JC's work effort within the Division. JC's final work products typically need significant rework for grammar, and in some cases standard format and acceptable content." (Id. )

When LANS took over operation of the laboratory in 2006, LANS retained Plaintiff as a Safety Basis Analyst-2 and as a Team Leader assigned to the Safety Basis Division-Tritium, Accelerator & Non-Nuclear Group. (Mot. Ex. B Laul Depo. 36:23-37:13.) Mr. Tingey was the Group Leader for the Safety Basis Division-Tritium Accelerator & Non-Nuclear Group.

In Plaintiff's evaluation for fiscal year 2008, Plaintiff's supervisor R. Mike Mobley described Plaintiff's communication issues:

The overall Performance Rating is reflective of the low scores received on Behavioral Competencies Communication and Personal Leadership.... He needs to improve his two-way communications skills ... to improve his ability to listen[.] ... He needs to significantly improve his writing skills to reduce rework on the documents he prepares. Attendance at a writing course is recommended.

(Mot. Ex. A-5.) Mr. Mobley also noted that Plaintiff "usually met minimum management expectations for the evaluation period. He is a technically strong analyst, particularly within his specialty." (Id. )

In 2008, Plaintiff was promoted to Safety Basis Analyst-3 (SA-3). (Mot. Ex. A Doak Decl. ¶ 6.) Plaintiff's evaluation for fiscal year 2009, prepared by his manager Ron Selvage, noted that overall, Plaintiff "Fully Meets Expectations." (Mot. Ex. A-6.) However, Mr. Selvage noted:

[T]here are still issues with communications between customers and team members, there is improvement over the last 6-months [sic].... JC needs to focus on organizational goals and helping/respecting others ... JC has improved his Team Work, ... [one] incident could have been handled in a better non-confrontational manner.

(Id. )

Plaintiff received a 2009 Individual Distinguished Performance Award for work that produced cost savings of about $5 million per year. (Resp. Ex. E.) In the previous twelve years, no employee from the Safety Basis Division had received that award. (Resp. Ex. A; Laul Depo. 53:13-54:5.)

B. 2010: Promotion, Transfer, Negative Evaluation, and Disciplinary Memorandum

In early 2010, Plaintiff was promoted to Safety Basis Analyst-4 (SA-4). (Mot. Ex. A Doak Decl. ¶ 7.) In July 2010, Plaintiff was transferred to the Safety Basis-Technical Services Group. In August 2010, Dr. Lisa Pansoy-Hjelvik was assigned as the Group Leader. (Id. )

On September 15 and 20, 2010, Dr. Pansoy-Hjelvik held two meetings to address Plaintiff's "work issues." (See Mot. Ex. C Dunn Email dated Sept. 22, 2010.) Dr. Pansoy-Hjelvik, Plaintiff, Pam Peterson, Tony Marth, Mike Mobley, and Deputy Division Leader (Safety Basis Division) Thomas D. Dunn attended the meetings. (Id. ) On September 22, 2010, Mr. Dunn sent Plaintiff by email a Memorandum of Expectations (MOE) outlining four "expectations," discussed at the meetings addressing Plaintiff's behavior. (Id. ) The four expectations were entitled, (1) Chain of Command; (2) Acting in a professional manner; (3) Interaction with the customer; and (4) Time and Effort (T & E).

In Plaintiff's evaluation for fiscal year 2010, Dr. Pansoy-Hjelvik gave Plaintiff an overall performance rating of "Needs Improvement." (Mot. Ex. A-7.) Dr. Pansoy-Hjelvik recorded several areas of concern under the Behavioral Competencies section of that evaluation:

JC needs to work on having professional and respectful verbal and e-mail communications. Since August, a new SB-TS Group Leader started enforcing a policy of having team members report time and resource loading to team leaders (which JC was not used to), JC has sent several questionable emails, exhibited an unwillingness to follow his group leader's directions, and the SB-DO Deputy Division Leader Identified 4 expectations JC was expected to meet.

...

Although JC is highly motivated, his goals do not always align with organizational goals. While re-analyzing a calculation, JC tried to use the same parameters he used in the previous analysis, even though he had been advised by management that they were not the correct or appropriate values.

...

JC needs to work on respecting chain of command and recognize that he is expected to work with his Team Leader as requested by his Group Leader. JC is expected not to undermine other SB-TS staff's qualifications/capabilities or his groups [sic] plans to produce products during interactions with customers. JC showed unwillingness to move to a new location when his team was required to move out of their existing trailers.

...

JC needs to increase his attention to detail outlined in the behavior competencies above.... JC needs to work on his skills as outlined by his Deputy Division Leader to recognize the chain of command without undermining SB-TS staff qualifications, and to follow the expectations outlined by his management. These four bullets outlined by his management directly correspond to the behavioral competencies listed above, and are the main reason for the performance levels in this evaluation.

(Id. )

C. Disciplinary Written Counseling; Fiscal Year 2011 Evaluation

On March 7, 2011, R. M. Mobley, through Mr. Dunn, issued to Plaintiff a Notice of Corrective Action-Written Counseling (Written Counseling) addressing "ongoing concerns regarding [Plaintiff's] unprofessional and disrespectful behavior toward ... [Dr.] Pansoy-Hjelvik and [Plaintiff's] Team Leader, at the time, Tony Marth." (Mot. Ex. D-1) The Written Counseling stated that after receiving the September 22, 2010 MOE, "there is a continued cycle of appropriate behavior followed by instances of behavior counter to our September expectations." (Id. ) The Written Counseling mentioned a pattern of "defiant behavior" and Plaintiff's tendency to "consistently challeng[e] both [Plaintiff's] Group Leader and [Plaintiff's] Team Leader[.]"(Id. )

The Written Counseling personally addressed Plaintiff:

You met with your Technical Project Manager, Tony Marth, on February 22, 2011 and you acted in an unprofessional manner by yelling at him regarding a technical issue on an EPIcode parameter. This technical issue was discussed with your previous SB-TS management, and the instruction was for you to use a specific parameter. Instead, the analysis performed was counter to this instruction at the expense of the customer versus your pursuing the technical issue in a professional manner with your management.

...

In January 2011, you had a conversation with your SERF customer where you stated to the customer that your colleague's work was faulty and had to be fixed and therefore, the customer needed to provide you with funds to correct the calculation in the chemical analysis. SB-TS management had to apologize to the SERF customer for your unprofessional behavior.

...

You continue to undermine your management and SB-TS, in general, by attempting to involve yourself in work without prior authorization by your Group Leader or your Technical Project Manager.... This cycle is untenable ... Your behavior is unprofessional, unacceptable, and will not be tolerated.

(Id. )

The Written Counseling outlined 12 expectations for Plaintiff's workplace conduct. (Id. ) The Written Counseling concluded that it was issued, "to inform you of the seriousness of these issues and offer assistance to you in meeting expectations.... Failure to consistently meet these expectations will result in additional disciplinary action." (Id. )

In Plaintiff's evaluation for fiscal year 2011, Dr. Pansoy-Hjelvik gave Plaintiff an overall performance rating of "Unsatisfactory," (Mot. Ex. A-8.) In the evaluation, Dr. Pansoy-Hjelvik noted:

When JC has been given instruction on solving specific technical issues, multiple iterations ... have had to occur, before JC will consider following the instruction. This has resulted in delays and additional cost in completing work assignments to the customer's detriment. In addition, JC has written several emails which have slandered his management and co-workers. In several instances, the TL and GL have been notified and requested by other team members and customers that JC temper his interactions. JC continually provides negative feedback on his coworkers [sic] products in order to bolster his work products. This method of communication has undermined the morale of the team and of those that JC interacts with.

...

JC's work behavior consistently impacts the ability to effectively achieve work milestones. The behavior challenges are compounded by deficiencies in JC's application of safety basis fundamentals.

(Id. )

D. Transfer to Selvage's Group; Written Reprimand; Reassignment to USQ; and 2012 Evaluations

In November 2011, Plaintiff was transferred from the Safety Basis-Technical Services Group to the Environmental and Waste Management Group, which was managed by Mr. Selvage. On February 21, 2012, Gilbert Torres, through Mr. Dunn issued a Notice of Disciplinary Action-Written Reprimand (Written Reprimand). (Mot. Ex. D-2.) The Written Reprimand described the following:

Since receiving the written counseling on March 8, 2011, you have continued a pattern of unprofessional, disrespectful and disruptive behavior that violates the written counseling as well as the expectations provided to you on September 22, 2010. Specifically, you have sent several e-mail messages to your management at SB-TS where you undermine SB-TS staff's qualification [sic] and capabilities.... Additionally, on January 18, 2012, I was informed that you requested meetings with two managers with the intention of obtaining derogatory information regarding a co-worker. Respectively, these two managers described your behavior in those meetings as inappropriate, confrontational, and disruptive.... Your performance deficiencies are directly related to the inappropriate behaviors you continue to exhibit in the workplace.

...

I am concerned that you did not take the written counseling you received on March 8, 2011 seriously. These continued issues are unacceptable and will not be tolerated.

Due to the seriousness of the above issues, I am issuing you this written reprimand in accordance with P731. This reprimand is intended to avoid the need for further disciplinary action, but you are hereby notified that further issues with your behavior, professionalism, communication and job performance or failure to immediately and consistently meet expectations outlined in the written counseling ... will result in more severe disciplinary action up to and including termination of your employment.

(Id. )

Mr. Selvage described Plaintiff's work performance in mid-2012:

[Plaintiff's] 2012 mid-year performance appraisal, dated May 25, 2012, reflected my concerns that [Plaintiff] was taking too long to complete assigned tasks.... [Plaintiff] had to be repeatedly reminded to focus his responses on addressing the required action. He went through several iterations on some PFITs [Performance Improvements Tools System] issues because the required action was not always addressed. Most issues required rewrites before being able to submit them.

(Mot. Ex. E Selvage Decl. ¶ 6.) Mr. Selvage gave Plaintiff an overall rating of "Needs Improvement." (Id. )

After that mid-year evaluation, Mr. Selvage assigned Plaintiff "the single task of addressing the backlog of Unreviewed Safety Questions ('USQs')." (Id. ¶ 7.) Plaintiff's new assignment as a Qualified Evaluator (QEV) involved "reviewing documents from LANL waste facilities to determine if the changes to facility, or to facility procedures, were still within the safety envelop set by the Documented Safety Analysis." (Id. ) To perform this assignment, Plaintiff had to first analyze the particular change to determine the type of review to prepare. (Id. ) "The three potential formats for a USQ are a categorical exclusion [CAT-X], a USQ Screen and a USQ Determination (USQD). [The USQD was] the most complex and time consuming." (Id. ) Lance Platter, who was a LANS contractor, was Plaintiff's direct supervisor; and Mr. Selvage was the USQ Group Leader. (Resp. Ex. A Laul Depo. 50:10-11.)

After deciding which type of analysis to perform-a CAT-X, a USQ Screen, or a USQD-Plaintiff had to prepare an analysis, and submit that analysis to another QEV for review and editing. (Id. ¶ 8.) Next, a System Engineer (SE) reviewed and edited the QEV's analysis. (Id. ) After review and edits, Plaintiff prepared a final version of the USQ analysis. (Id. ) The analysis would then be given to the LANS customer. (Id. ) A single USQ can take up to a few days to complete depending on the complexity of the issue. (Resp. Ex. F Selvage Depo. 41:25-42:2.)

Shortly after Plaintiff began the USQ work assignment, Mr. Selvage received complaints from Plaintiff's co-workers that Plaintiff "constantly would seek assistance and guidance from [Mr. Platter] and from other USQ preparers and SEs." (Mot. Ex. E Selvage Decl. ¶ 9.) In Plaintiff's fiscal year 2012 evaluation, Mr. Selvage "documented significant deficiencies in [Plaintiff's] work performance." (Id. ¶ 11.) Mr. Selvage gave Plaintiff an overall performance rating of "Needs Improvement." (Mot. Ex. A-9; Selvage Decl. Ex. E ¶ 11.) Mr. Selvage noted,

JC needs to improve his listening skills. Although he acknowledges what people are saying to him, his does not always translate into the appropriate actions. JC also needs some improvement in communicating with others through emails. He has been verbally counseled about sending inappropriate/demanding emails to a LANL employee.

...

While JC does stay late to complete tasks, he has a tendency to rely on others too much to help him complete his work. He repeatedly requested another QEV to tell him if the USQ Document he was writing should be a Screen or a USQD instead of determining this himself.

...

JC has not shown the amount of understanding of safety basis issues that should be expected from an Analyst 4. Tasks need to be explained several times, and most of his work products need significant revision.

(Mot. Ex. A-9.)

Plaintiff characterized the USQ process as a collaborative effort between USQ preparer and reviewers. (Resp. Ex. B Laul Aff. ¶¶ 2; 16.) Plaintiff testified that Mr. Platter required USQ documents to be written a certain way, even if Mr. Platter agreed with Plaintiff's conclusions. (Id. ¶ 4-5.) In his deposition, Plaintiff described the USQ process and why he believed he was discriminated against:

I was working in a collaborative fashion. The project I was on, I was, you know, writing this report, which they call "USQ Project" I was on, and every time I will write a report it will be reviewed and signed by either Lance Platter, who was also working as a team lead. If he's not there, the other person was Lawrence Garcia. We three reported to Ron Selvage, who was the group leader, and then we have a like group we called "system engineers," and there were seven, eight of them. And these system engineers were assigned to different nuclear facilities with different functions. So after I get two signatures, then I go to them. Either I explain to them why I'm doing it, I sign off, either I see their point and I make changes. So everything, when I do, there are three signatures-mine, another team lead, Lance Platter or Lawrence Garcia, one of them, and then system engineers. Then that goes to Ron for review. And so it was a collaborative effort, and he could see it, there were three signatures. And yet, he will nit-pick only me, not the others. And those people are all younger than me. And that is age [discrimination]. That could be national race.

(Resp. Ex. A Laul Depo. 50:3-51:5.) In Plaintiff's opinion, any errors in a particular USQ document should have been attributed to the entire USQ group. (Id. )

E. Performance Action Plan; Performance Improvement Plan; and Termination of Employment

In the fall of 2012, Mr. Selvage informed the Safety Basis Division Leader, James Miller, about Plaintiff's "ongoing performance issues." (Mot. Ex. E Selvage Decl. ¶ 12.) Mr. Selvage informed Mr. Miller that Plaintiff "was a level 4 Safety Analyst (SA-4) but was, at best, performing at an SA-1 or SA-2 level." (Id. ) Mr. Selvage "advised Mr. Miller of the current status of Dr. Laul's performance evaluations and advised Mr. Miller that because Dr. Laul was unable to perform basic safety basis tasks, [Mr. Selvage] believed he should have been able to master as an SA-4, [Mr. Selvage] had assigned him the single task of preparing and reviewing USQ documents." (Id. ) Mr. Selvage "believed that [Plaintiff's] performance on USQ preparation was more amenable to measurement than other tasks that he could only accomplish with a great deal of input from other employees." (Id. )

Mr. Miller directed Mr. Selvage to place Plaintiff on Performance Action Track (PAT) under LANS Policy P736 "so that Dr. Laul's performance could be monitored and assessed formally through a Performance Improvement Plan ("PIP") as part of the PAT." (Mot. Ex. E Selvage Decl. ¶ 19.) Under LANS' P736 Policy, an employee on a PAT must also be placed on a PIP detailing the employee's performance deficiencies and stating clearly written expectations and goals. (Id. ¶ 14.) In late 2012 and early 2013, Mr. Selvage and David Rudolph, the Senior Employee Relations Specialist in the LANS Human Resources Division-Employee Relations (HR-ER) drafted the PIP and other PAT documents. (Id. ¶ 20.)

On March 7, 2013, a written PAT was issued to Plaintiff describing Plaintiff's negative work performance dating back to the March 2011 Written Counseling and stating,

As you know, we have been meeting with you since December 2012. The Performance Action Track will be in place for a period of six months after which you will be terminated if your performance is not deemed fully satisfactory. Termination may be considered before the expiration of the Performance Action Track period if little or no progress is being made toward meeting performance expectations.

(Mot. Ex. E-2 at 1.) The original written PIP stated that it was to last from December 1, 2012 to June 1, 2013. (Id. at 3.) Under the PIP, Plaintiff had to "prepare an average of 8 quality USQ documents each week in addition to reviewing the documents of other QEVs." (Id. at 3-4.) Plaintiff was required to meet with Mr. Selvage every two weeks so that Mr. Selvage could assess Plaintiff's performance and provide feedback. (Id. at 4.) Plaintiff was instructed not to solicit other employees to do his work for him. (Id. at 3.) The PIP also directed Plaintiff to "[c]omplete your assignments accurately ... [m]aintain and develop effective work relationships ... [i]nteract with your co-workers, management, and customers in a professional and respectful manner ... [a]ccept direction from management without continually resisting guidance and direction ... [and] [a]dhere to all of the expectations outlined in the March 8, 2011 Written Counseling." (Id. ) Plaintiff was told that at the end of the PAT period, Mr. Selvage would give the SB Division Leader "a written assessment of your performance.... In the event it is determined that your performance has not been fully satisfactory during the course of the [PAT], you will be provided a Notice of Intent to Terminate." (Id. at 4.)

Under LANS Policy P736, a PAT period can last from "two to six months and ends either in fully satisfactory performance, reassignment, or termination." (Mot. Ex. E-1.) Although a termination of employment cannot be grieved, an employee may appeal a termination decision within five working days. (Id. )

Mr. Selvage began to review Plaintiff's work in December 2012, and in early 2013, Mr. Selvage, Ms. Barbara Pacheco, a Human Resources employee, and Plaintiff met periodically to discuss Plaintiff's performance under the PAT. (Mot. Ex. H, Selvage Depo. 25:5-13; Ex. E-4.) For example, Mr. Selvage sent an email to Plaintiff dated January 17, 2013 and recounted what was said at a meeting with Plaintiff on January 16, 2013:

while I did acknowledge improvement in performing USQDs, I also noted that Lance [Platter] stated you still had some trouble with the more complicated USQ Documents. I also stated that I would like you to work in your understanding of the problems you are solving and make sure you address the questions that need to be answered. Overall your performance on USQDs has improved.

(Mot. Ex. E-4 at 3.)

Even though the PAT began in December 2012, the written PAT, including the written PIP, was not issued to Plaintiff until March 7, 2013. (Mot. Ex. E-2; Resp. Ex. A Laul Depo. 143:23-144:1.) The record shows that Plaintiff, Mr. Selvage, and Ms. Pacheco held meetings from December 2012 to May 2013, but no written assessments of Plaintiff's progress under the PAT were issued during that time. The record contains written PAT Assessments beginning on May 2, 2013 through October 7, 2013. (Mot. Ex. E-3.) In the first six written PAT Assessments dated May 2, 2013, May 14, 2013, May 28, 2013, June 12, 2013, June 25, 2013, and July 23, 2013, Mr. Selvage rated Plaintiff's performance as "Satisfactory." (Mot. Ex. E-3.)

In the August 6, 2013 PAT Assessment, however, Mr. Selvage stated that he had just learned that for the preceding five months, Mr. Platter had been assigning Plaintiff easier USQ work involving CAT-Xs or Screens "at the level of a Safety Basis Analyst 2 and not at the level of a Safety Basis Analyst 4." (Mot. Ex. E Selvage Decl. ¶ 18.) Mr. Selvage stated,

Essentially, Mr. Platter advised me that it was easier for Platter to do the USQDs himself or to assign them to Lawrence Garcia, a SA-2 than to deal with the constant questioning from Dr. Laul and to have to rewrite the documents Laul was to prepare. ...

Once I learned that [Plaintiff] was not preparing the more difficult USQ documents, and that, in effect, I had been evaluating him essentially at an SA-2 level not at a SA-4 level, I also realized that I was largely seeing ... USQ documents after the QEV and the SEs had made edits and revisions to bring the USQ documents up to standard, I spoke with David Rudolph, Senior Employee Relations Specialist ... about how I could obtain a more accurate reading of [Plaintiff's] performance.

(Id. ¶ 20.) Lawrence Garcia, a level SA-2 QEV who was assigned to the USQ project, testified that Plaintiff continuously sought help from Mr. Platter:

A. [Plaintiff] would continuously come into [Mr. Platter's] office. Sometimes it was pretty excessive, 10 to 20 times a day, asking Lance for help on a USQ or assistance on how to-how he should do this, or whether or not the USQ, you know-if this would be okay to screen or CatEx or do a determination, which are fundamental questions in the USQ process.

Q. When you say they are fundamental questions, what do you mean?

A. So, there are some things during the USQ process that, when you get a work order or a procedure, you should be able to read the description of change and know exactly whether or not it should be screened, CatExed, or go through a determination.

...

Q. Now, did you yourself, as an SB2 at the time, have to or need to seek out Mr. Platter's advice on what category a USQ should be, or all these other questions that Dr. Laul was presenting, did you have to do that?

A. No. I didn't have to go. And at that time, I would just look at it and I knew what I needed to do with it, so I would just run with it.

(Mot. Ex. I Garcia Depo. 46:25-47:23.)

After recognizing that from December 2012 to July 23, 2013, Mr. Platter had been assigning easier USQ projects to Plaintiff, the supervisors of Plaintiff's PAT, Mr. Selvage, Mr. Rudolph, and Division Director Miller, decided to extend Plaintiff's PAT "so that a true picture of his ability to improve in the areas set out in the PAT as well as his ability to perform at the level of Safety Basis Analyst 4 could be obtained." (Mot. Ex. E Selvage Decl. ¶ 20.) Plaintiff's PAT was extended from August 2013 to October 2013. (Id. ¶ 21.) At that time, Mr. Selvage also instructed Mr. Platter to submit unedited versions of Plaintiff's USQ work product for Mr. Selvage to review. (Id. )

Plaintiff maintains that Mr. Selvage did not follow LANS Policy for extending the PAT because Mr. Selvage did not have the extension approved in writing by "upper management." (Resp. Ex. B; Laul Aff. ¶ 10.) Under LANS Policy P736, a PAT time frame "can be extended with approval from the division- or higher-level manager." (Mot. Ex. E-1 § 3.2.) However, written approval was not required, and Division Director Miller approved the extension. (Selvage Decl. ¶ 20.)

Plaintiff contends that he was placed on the PAT to get rid of him for discriminatory reasons and because he complained to HR about discrimination. Plaintiff disputes the evidence that he only did easy USQs during the time period from May to July 2013. Plaintiff testified that he was always given USQs that had "varying degrees of difficulty." (Resp. Ex. A Laul Depo. 121:17-122:17; 202:17-21.)

In contrast to the May-July 2013 PAT Assessments, Mr. Selvage evaluated Plaintiff's work performance from August 2013 through October 2013 as "generally unsatisfactory." (Id. ) In four out of six of those PAT Assessments, Mr. Selvage rated Plaintiff's performance as "Unsatisfactory." (Mot. Ex. E-3.) In one of those PAT Assessments, Mr. Selvage rated Plaintiff's performance as "Needs Improvement." In the September 3, 2013 PAT Assessment, Mr. Selvage rated Plaintiff's work as "Satisfactory" noting that Plaintiff had prepared the minimum number of USQ's for the two-week period. (Id. ) However, Mr. Selvage noted, "[Plaintiff] told me that he worked 3 days over the weekend to complete the documents. The 2 week period for this evaluation did include one holiday, but JC is taking 12 to 13 days of work days to complete what should be done 9 days.... I would expect that more than the minimum number of documents would have been prepared by working an extra 3 days." (Id. ) Mr. Selvage concluded, "[b]ased on this assessment, [Plaintiff's] rating is marginally satisfactory. If the quality does not improve and stays at this level, his next rating will be Needs Improvement." (Id. )

In the October 1, 2013 PAT Assessment, Mr. Selvage gave Plaintiff an overall rating of "Unsatisfactory." (Mot. Ex. E-3.) Mr. Selvage noted that Plaintiff reported preparing 16 USQ reports over the two week period, but Mr. Selvage had actually received only 14 reports. (Id. ) Mr. Selvage determined that two of the sixteen reports had been prepared for the previous reporting period. (Id. ) Mr. Selvage determined that the quality of Plaintiff's reports had "regressed," and contained information that did not "relate to the discussed change." (Id. )

In the October 7, 2013 PAT Assessment, Mr. Selvage gave Plaintiff an overall rating of "Unsatisfactory." (Mot. Ex. E-3.) Mr. Selvage commented that one of Plaintiff's reports concerned "mopping the floor." (Id. ) For the "mopping the floor" analysis, Plaintiff had done a USQ Screen but in Mr. Selvage's opinion, Plaintiff should have done a basic CAT-X. (Id. ) Another of Plaintiff's screens was for "stack sampling," which Plaintiff labeled as "maintenance." Mr. Selvage stated that "[s]tack sampling is not maintenance." (Id. )

Mr. Selvage testified, "[o]nce I began reviewing [Plaintiff's] unedited/reviewed/revised work product, particularly on the more complex USQDs, I could see multiple deficiencies which were documented in the PAT Assessments." (Mot. Ex. E ¶ 21.)

Mr. Selvage admitted that although he supervised the employees in the USQ department, he was not technically a qualified evaluator of USQ documents:

Q. So, during the 2008 to 2015 time frame, were you considered a-what they call a QEV or qualified evaluator of USQs?

A. I was not.

(Resp. Ex. F; Selvage Depo. 9:8-11.) However, Mr. Selvage often sought out a more informed second opinion on some of Plaintiff's work product:

Q. ... [D]id you ever have anyone else review the USQs besides yourself?

A. Yes, I did.

Q. Who did you have reviewing?

A. Whenever I reviewed, if I came up with something I thought [Plaintiff] was wrong on or it wasn't, things that I was going to tell him he was doing wrong in a meeting, I would always go for a second opinion, either Sharon Walker or Mark Kobi, those are the two I specifically remember. ...

Q. And why did you go to those two?

A. Because they were senior level analysts. I respected their opinion. Mark Kobi has written probably thousands of USQDs here and at other sites.

(Resp. Ex. F Selvage Depo. 35:6-20.)

In mid-October 2013, Mr. Selvage recommended to the Safety Basis Division Leader Mr. Tingey, that LANS terminate Plaintiff's employment. (Id. ¶ 22.) Mr. Selvage provided the written PAT Assessments and Plaintiff's work product to Mr. Tingey for his review. (Id. ¶ 23.) Under LANS Policy P736 § 4.1, Mr. Tingey was responsible for the review of the PAT process and for the review of Mr. Selvage's recommendation to terminate Plaintiff's employment. (Mot. Ex. J ¶ 8.) After a review of the materials provided by Mr. Selvage, Mr. Tingey concurred with the decision to terminate Plaintiff's employment. (Id. ¶ 9.) On November 26, 2013, Mr. Tingey issued a Performance Action Track-Notice of Intent to Terminate. (Id. ¶ 10; Mot. Ex. J-1.) Plaintiff appealed the decision to the Acting Associate Director for Business Services at LANS, William Bivens, who upheld the decision. Plaintiff's employment was terminated on December 6, 2013. (Mot. Ex. J ¶ 11; Mor. Ex. J-1.) The Safety Analyst-4 position (USQ preparer/reviewer for EWM Group) was not filled after the termination of Plaintiff's employment. (Mot. Ex. H; Ex. I.)

F. Plaintiff's Grievances; LANS Investigation

Under LANS Policy P791, an employee may file a grievance about yearly performance evaluations, disciplinary actions, and other personnel matters. (Mot. Ex. A Doak Decl. ¶ 10.) On April 4, 2011, Plaintiff filed a grievance on LANS Form P791 complaining about the March 2011 MOE. (Mot. Ex. A-10.) In an 11-page brief with a 34-page attachment, Plaintiff responded in detail to negative evaluations of his behavior and work product. Plaintiff also gave his opinion that his own behavior was not offensive, he criticized Dr. Dr. Pansoy-Hjelvik's behavior and management style, and he outlined instances of other employees' incompetence and unfair treatment of him. (Id. ) Plaintiff complained, "[i]n February 2011, [Dr. Pansoy-Hjelvik] ... assigned me a Low Contribution Rating (TCR) of 2.4 (below average), lowest score in my 11 yrs at LANL. [Dr. Pansoy-Hjelvik's] actions reflect her animosity, harassment, retaliation, and discrimination against me." (Id. ) (emphasis in original).

On January 3, 2012, Plaintiff filed another grievance complaining about his "FY [fiscal year] 2011 'Performance Appraisal' " in which Dr. Pansoy-Hjelvik rated his overall performance as "Unsatisfactory." (Mot. Ex. A-11.) Plaintiff complained that

Since [Dr. Pansoy-Hjelvik] has assigned "Below Expectations" in all key areas, thus the summary rating should not be rated lower than 'Below Expectations' (Needs Improvement). Since our interaction and communication problem deteriorated in the last three months, and she is short tempered and has intrinsic bias and behavior problem with me, and she needs to recognize her fault and take ownership in fixing it herself rather than blaming me for it. [Dr. Pansoy-Hjelvik] has been harassing and discriminating against me since I have been in her group since August 2010. Based on the facts stated above, I believe [Dr. Pansoy-Hjelvik's] actions against me are not only in violation of LANL policies but also retaliatory and discriminatory. Especially, in light of the facts that I earned a performance rating of 4.0 (high score) in 2008-09 PA and was promoted to SBA-4 in 2009 by the SB Review Board, and received a LANL Individual Distinguished Performance Award in 2010. [Dr. Pansoy-Hjelvik's] actions of ranking my performance as "Needs Improvement" in FY 2010 and "Unsatisfactory" in FY 2011 simply do not make any sense and clearly are retaliatory and discriminatory against me.

(Id. )

Plaintiff further complained that during fiscal year 2011, Dr. Pansoy-Hjelvik gave him a mid-year review that was positive, but she did not put that evaluation in writing. "I believe that [Pansoy-Hjelvik] had ill intention of not putting statements in writing, what she told me verbally on 4/19/11." (Id. ) (emphasis in original). Plaintiff claimed that "[Dr. Pansoy-Hjelvik's] actions of ranking my performance as "Needs Improvement" in FY 2010 and "Unsatisfactory" in FY 2011 simply do not make sense and clearly are strong indication of intrinsic bias, harassment, retaliation and discrimination against me." (Id. ) (emphasis in original).

On March 12, 2012, Plaintiff grieved the Total Contribution Rating given to him in his FY 2011 evaluation, which Plaintiff claimed constituted "harassment, retaliation, and discrimination." (Mot. Ex. A-12.)

On March 20, 2012, Plaintiff filed a grievance complaining about the March 2011 MOE and about the February 2012 Written Reprimand. (Mot. Ex. A-13.) Plaintiff indicated that these actions were discriminatory, and harassing due to age, race, and nationality. (Id. )

Ms. Doak, an employee in LANS' HR department, testified that the LANS Employer Relations Division investigated each of Plaintiff's P791 grievances, and found Plaintiff "had never been subjected to discrimination or retaliation on the basis of his age, race, or national origin." (Mot. Ex. A Doak Decl. ¶ 16.)

On September 14, 2013, Plaintiff wrote a "Response to [Ron Selvage's] Status Report of 9/3/13: Provided to J.C. Laul on 9/6/13." (Mot. Ex. N.) In the lengthy memorandum, Plaintiff complained that Mr. Platter was giving Plaintiff the "tough" USQ projects and that "[t]his is a violation of our agreement." (Id. ) (emphasis in original). Plaintiff further complained that Mr. Selvage was reviewing "draft" copies of Plaintiff's reports before they were "finalized for signatures." (Id. ) In Plaintiff's opinion, Mr. Selvage's review of Plaintiff's unedited reports was "highly unfair." (Id. ) (emphasis in original).

On November 13, 2013, Plaintiff sent an email to both Mr. Selvage and Ms. Pacheco describing a meeting with Mr. Selvage to go over the "10/7/13 package." (Mot. Ex. N.) "[Mr. Selvage] explained the reasons of his negative comments on 3 USQs out of 17. Then I asked if I can make copies of these 3 USQs, Ron [Selvage] refused, which utterly surprised me[.]" Plaintiff mentioned that he had only five days to appeal under the PAT process and he needed copies of his USQs for his appeal. (Id. ) Plaintiff then asked Mr. Selvage to hold a meeting about Plaintiff's USQ reports that included the other USQ preparers "to go over the negative comments of 10/1/13 and 10/7/13, so that they could collectively benefit from [Mr. Selvage's] input." (Id. ) Mr. Selvage refused to hold that meeting, which Plaintiff attributed to discrimination. (Id. ) In sum, Plaintiff's email contained a lengthy and detailed explanation refuting each minute detail of Mr. Selvage's October 1, 2013 Assessment. (Id. ) Plaintiff also noted that Mr. Selvage's "negative comments" were "highly unfair and discriminatory because others make the same mistakes as I do." (Id. ) (emphasis in original).

After his employment was terminated and his appeal was denied, Plaintiff submitted a memorandum dated January 5, 2014 to Mr. Richard A. Marquez, LANS Executive Director, asking Mr. Marquez to reconsider the decision to terminate his employment. (Mot. Ex. P) (Marquez memorandum). In the Marquez memorandum, Plaintiff described his belief that Mr. William Bivens did not review Plaintiff's "appeal package of 186 pages that included 5 Appendices (A to E)." (Id. ) In particular, Plaintiff noted that his Appendix C with 133 pages "contained my technical responses to show convincingly that Need Improvement [sic] and Unsatisfactory status reports by Ron Selvage should have been assigned 'Satisfactory.' " (Id. ) Plaintiff stated, "I gave my appeal package to Bivens on 12/5/13 evening and he sent me termination letter the next day (12/6/13), which tells me that this was his preplanned decision, although Section 3.6.1 of PAT allows 5 workdays to make the decision." (Id. ) Plaintiff continued with a detailed explanation of how he thought the PAT process was violated in his case. (Id. ) Plaintiff again complained that Mr. Selvage did not share his criticisms of Plaintiff's USQ reports with Plaintiff's co-workers who would have been signatories on all final USQ reports submitted by Plaintiff. (Id. ) Plaintiff characterized Mr. Selvage's refusal as "harassment and discriminatory." (Id. ) Plaintiff mentioned that the "2013 Performance Guide shows that each organization needs to reduce the staff by 10% by assigning Need Improvement [sic] or Unsatisfactory." (Id. ) Plaintiff opined that Mr. Selvage extended Plaintiff's PAT and negatively evaluated Plaintiff's USQ reports for the purpose of meeting this staff reduction goal. (Id. )

G. Plaintiff's Charges of Discrimination and Retaliation

On September 11, 2014, Plaintiff filed a Charge of Discrimination (Charge) with the New Mexico Department of Labor, Human Rights Division. (Mot. Ex. L.) On the Charge form, Plaintiff checked the boxes labeled race, national origin, age, retaliation, and a box labeled "other." Beside the box labeled "other" Plaintiff wrote "harassment and wrongful termination." In a box labeled "date(s) discrimination took place" Plaintiff wrote March 2013 as the earliest date of discrimination and December 6, 2013 as the latest date of discrimination. (Id. ) In the narrative section of the Charge, Plaintiff stated

In March of 2013, I was placed on a performance action track (PAT) from December 1, 2012 to June 1, 2013. On June 1, 2013, I successfully completed PAT. My mid-year PA FY-13 was also satisfactory. Per PAT P736 3.2, the PAT maximum duration is six months ... my supervisor extended the PAT process without justification, reason, and without my approval or approval of upper management[,] which is required per 3.2. In October of 2013, I was told that my performance was unsatisfactory based on a limited number of status reports which I strongly disagreed with. His many negative comments were not justified to which I responded.... I was the only one written up for unsatisfactory performance even though others (Team Leader and System Engineers) had signed off on the work I performed was [sic] part of the collaborative effort and shared responsibility. This is clearly a case of harassment, retaliation, and discrimination of age, race, and origin[.]

(Id. ) Plaintiff further complained about perceived violations of the PAT process including his inability to file a grievance regarding his termination of employment. (Id. ) Plaintiff stated that he "filed several grievances and complaints of discrimination, however, all of my grievances and complaints have been ignored or denied." (Id. ) Finally, Plaintiff indicated that he believed he had been "harassed, retaliated [sic] and wrongful termination [sic], discriminated against because of my race, age and National Origin in violation of the New Mexico Human Rights Act and Title VII." (Id. )

On October 30, 2014, Plaintiff filed another Charge of Discrimination (Amended Charge) with the Human Rights Division. (Mot. Ex. L.) Again, Plaintiff checked the boxes indicating that he was discriminated against based on race, national origin, age, and "retaliation." (Id. ) In a box labeled "date(s) discrimination took place" Plaintiff wrote Feb 2014 as the earliest date of discrimination and September 2014 as the latest date of discrimination. (Id. ) Plaintiff described the basis for the Amended Charge:

The Lab Director Charlie McMillan sent out an e-mail of 1/13/14 to the LANL staff on "Annual EEO, AA and Diversity Statement ["] and stressed that any violation can result in serious consequence[s]. I explained my situation in 1/14/14 letter to Charlie McMillan on the abuse of P736 due to harassment, retaliation, and discrimination of age, race and origin, on the USQ project by Ron Selvage (Supervisor). I was hoping that Charlie will reinstate me and take serious action against Ron (termination), but he did not which surprised me. Perception is that senior management supports lower management actions even when they are at fault.... Rich Marcus in his 1/2/14 e-mail stated "Of course, you are free to apply as an external candidate for posted jobs that you believe fit your skill set." Before termination, I had applied for 10 positions. After termination, I did not get even a single interview.... [W]hen someone applies as an external candidate, the HR checks the personal [sic] file. If the person was terminated, shown in his personal [sic] file, and then his chances for interview and later job offer are significantly diminished to zero. This practice is an ethical violation, and wrong. If senior management wants someone to get a fair chance for another job, termination must not be listed in his/her file. I have applied for few jobs this year, but knowing that my file has a record of termination, I will have no chance of getting another job at LANL. This is harassment, retaliation and discrimination.

(Id. ) (emphasis in original). In the Amended Charge, Plaintiff included a chart of all LANS positions for which he applied stating that even though he was well qualified for the positions, he "did not even get one interview." (Id. ) Twelve positions are listed, and all but two of the positions were filled. Plaintiff claimed that this hiring process violated the New Mexico Human Rights Act and Title VII. (Id. )

H. Plaintiff's Applications for Positions at LANS Before and After Termination of Employment

1. Applications before discharge

On August 28, 2013, Plaintiff applied for a position as Group Leader for SB-TA (SBA-4), which was identified as IRC 25112. The hiring manager for IRC 25112 was Bradley Embrey, who was the Deputy Division Leader in the Safety Basis Division at LANS. (Mot. Ex. M-4 Embrey Decl. ¶ 1.) This was an external job posting that was open to internal (LANS employees) and external applicants (non-LANS employees). (Id. ¶ 3.) Mr. Embrey determined that Plaintiff "did not meet minimum qualifications for the position and therefore [Plaintiff] was not offered an interview for that position." (Id. ) In May 2014, Mr. Embrey hired James Leslie Clark to fill that position. (Id. ) Mr. Embrey stated that he was not aware of Plaintiff's claims of discrimination and his decision was based solely on Plaintiff's failure to meet the minimum qualifications for the position "and was not based on any consideration of [Plaintiff's] age, race or national origin." (Id. )

On September 2, 2013, Plaintiff applied for a Safety Basis Analyst 5 position, which was an external posting identified as IRC 21393. Mr. Tingey, who was the hiring manager for Safety Basis Analyst positions, stated that he "determined that [Plaintiff] did not meet minimum qualifications for the position and therefore [Plaintiff] was not offered an interview for the position." (Mot. Ex. M-2 Tingey Decl. ¶ 3b.) Mr. Tingey testified that he recommended to the hiring group that Plaintiff not be interviewed or hired because Plaintiff had been discharged. Mr. Tingey hired Heath Erik McLaughlin and Randy Janke Job to fill IRC 21393. (Id. )

On September 8, 2013, Plaintiff applied for two job postings entitled Environmental Professional 3 and identified as IRC 24093 and IRC 26032. The hiring manager for that position was Anthony Grieggs, who was an Environmental Manager 4 in the Environmental Compliance Program at LANS. (Mot. Ex. M-5 Grieggs Decl. ¶ 3a.) Mr. Grieggs determined that Plaintiff did not meet minimum qualifications for the position. (Id. ) Therefore, Mr. Grieggs did not offer Plaintiff an interview for either position. (Id. ¶¶ 3-4.) Mr. Grieggs hired Walter Wiley Whetham to fill IRC 24093. (Id. ¶ 3a.) Mr. Grieggs hired Marjorie Bloomhardt Stockton and Brinda Ramanathan to fill IRC 26032. (Id. ¶ 3b.) Mr. Grieggs stated he had no knowledge of Plaintiff's discrimination claims or his performance issues. (Id. ¶ 4.)

In September 2013, Plaintiff applied for five internally posted Engineering Manager (EM-3) positions. The positions were posted as IRC 25293, IRC 25712, IRC 26632, IRC 26652, and IRC 25752. Leah Sanchez, HR Manager 4 with LANS, described the process related to Plaintiff's applications for these internal job postings. (Mot. Ex. M-6 Sanchez Decl. ¶ 3.) Ms. Sanchez stated that although LANS received applications from Plaintiff for the positions in September 2013, interviews for the positions did not occur until after Plaintiff's employment was terminated. Therefore, when the interview process began, Plaintiff was no longer eligible for these internal positions. (Id. ¶¶ 3a-e.) Jorge Ruiznavarro, Stacey Talachy, Daniel Pennington, and Gerald Merkey were hired for IRC 25293. (Id. ¶ 3a.) David G. Rael was hired for IRC 25712. (Id. ¶ 3b.) Stephen Andrew Ney was hired for IRC 26632. (Id. ¶ 3c.) Joseph L. Sanchez was hired for IRC 26652. (Id. ¶ 3d.) Job posting IRC 26752 was not filled. (Id. ¶ 3e.)

Also in September 2013, Plaintiff applied for the position of Environmental Manager 2, an external posting identified as IRC 27752. Kenneth A. Vigil was an HR Generalist who supported the Regulatory Support and Performance Group. (Mot. Ex. M-1 Vigil Decl. ¶ 3.) On September 24, 2013, Mr. Vigil received Plaintiff's application for that position. (Id. ) Mr. Vigil interviewed Plaintiff for the position on December 5, 2013. (Id. ) However, job posting IRC 27752 was cancelled on March 31, 2014, and the position was not filled. (Id. )

Thus, before he was discharged, Plaintiff applied for a total of ten positions, five of which were internal postings that were not open for interviews until after Plaintiff was terminated so Plaintiff became ineligible for those positions. Two of the positions were cancelled and not filled.

2. Applications after discharge

In May 2014, Plaintiff applied for an external position as a Safety Basis Analyst 3/4 identified as IRC 33782. (Mot. Ex. M-2 Tingey Decl. ¶ 3a.) Mr. Tingey did not offer Plaintiff an interview for the position because he determined that "[Plaintiff] was not the best qualified for the position." (Id. ) Mr. Tingey hired Jon David Nelson and Mark John Kobi for IRC 33782. (Id. ) Mr. Tingey stated that his decision not to offer an interview to Plaintiff for this position was not based on Plaintiff's age, race or national origin but was based on Plaintiff's recent discharge from employment at LANS. (Id. ¶ 4.)

On July 8, 2014, Plaintiff applied for the position of Geologist 3/4, an external posting identified as IRC 34464. On July 21, 2014, Mr. Alan MacGregor, the hiring manager, received Plaintiff's application. (Mot. Ex. M-3 MacGregor Decl. ¶ 3.) After reviewing all of the applications, Mr. MacGregor did not offer Plaintiff an interview for the position because "[Plaintiff] did not meet minimum qualifications for the position[.]" (Id. ) Mr. MacGregor hired Stephen Spalding White for the position. (Id. ) Mr. MacGregor stated that he knew nothing about Plaintiff's claims of discrimination or Plaintiff's performance issues. (Id. ¶ 4.)

Thus, after he was discharged, Plaintiff applied for two positions. With regard to all of the positions for which Plaintiff applied, Mr. Selvage, as a group leader, could review all of the candidates for open positions. (Resp. Ex. F Selvage Depo. 72:10-16.) Mr. Selvage did not recommend Plaintiff for any of the positions because Plaintiff "had just been terminated." (Id. )

I. Plaintiff's Complaint in this Lawsuit

On August 25, 2015, Plaintiff filed his COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND RETALIATION (Doc. No. 1) (Complaint). In Count I of the Complaint, Plaintiff claims he was discriminated against on the basis of his age in violation of the NMHRA and the ADEA. (Compl. ¶¶ 25-27.) In Count II, Plaintiff claims that LANS discriminated against him on the basis of national origin in violation of the NMHRA and Title VII. (Compl. ¶¶ 28-30.) In Count III, Plaintiff asserts a retaliation claim alleging that he "complained about discrimination in the workplace," and as a result of his complaints, Plaintiff was retaliated against in violation of the NMHRA and Title VII. (Compl. ¶¶ 31-34.)

III. DISCUSSION

A. Exhaustion of Administrative Remedies

1. Age and National Origin Discrimination Claims

Under the NMHRA, Title VII, and the ADEA, a claimant must exhaust administrative remedies before filing suit. See Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (recognizing that ADEA and Title VII require exhaustion of administrative remedies); Luboyeski v. Hill , 117 N.M. 380, 872 P.2d 353, 355 (1994) ("[W]hen a defendant is sued under the [New Mexico] Human Rights Act the plaintiff must exhaust her or his administrative remedies before bringing an action in district court."). Requiring a claimant to exhaust the administrative process "put[s] an employer on notice of a violation prior to the commencement of judicial proceedings ... [and facilitates] internal resolution of the issue rather than promoting costly and time-consuming litigation." Mitchell v. City and County of Denver , 112 Fed.Appx. 662, 666 (10th Cir. 2004) (citation omitted) (unpublished). Under these statutes, a claimant must file a charge of discrimination with the appropriate state authority within 300 days of each discrete act of discrimination or retaliation. Noland v. City of Albuquerque , 779 F.Supp.2d 1214, 1232 (D. N.M. 2011).

LANS argues that even though Plaintiff exhausted his discriminatory discharge claim, Plaintiff failed to timely exhaust claims based on the pre-discharge events. LANS submits that since Plaintiff filed his initial Charge on September 11, 2014, Plaintiff may base his claims of age and national origin discrimination only on events that occurred on or after November 15, 2013. In support of its argument, LANS cites Haynes v. Level 3 Communications, LLC , 456 F.3d 1215 (10th Cir. 2006)abrogated in part by Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

The Tenth Circuit's opinion in Haynes is instructive. In Haynes , the plaintiff claimed that she was placed on a Performance Improvement Plan (PIP) and subsequently discharged in a reduction in force (RIF) in violation of Title VII and the ADEA. 456 F.3d at 1224. The employer argued that the plaintiff failed to timely exhaust her administrative remedies for several actions about which she complained. Id. The court noted, "a [Title VII] cause of action accrues 'on the date the employee is notified of an adverse employment decision by the employer.' " Id. (citation omitted). Consequently, the court focused on what adverse employment actions by the plaintiff's employer triggered the 300-day limitations period. Id. The court recognized that "[o]nly 'acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits' will rise to the level of an adverse employment action." Id. (citation omitted). The court reviewed evidence of the discriminatory acts prior to the plaintiff's termination to determine whether they were "time-barred discrete adverse employment actions." Id. at 1223. The first discriminatory act was the plaintiff's placement on a PIP and the second act was the transfer by the plaintiff's supervisor of several of the plaintiff's sales accounts to another employee. Id. The court determined that the transfer of the plaintiff's accounts to another employee was an adverse employment action because the transfer negatively affected the plaintiff's income. Id. at 1224. However, the court concluded that the placement on the PIP was not an adverse employment action because it had no immediate effect on the plaintiff's "employment status." Id. at 1225. The court concluded that the plaintiff had not exhausted her claim based on the transfer of her accounts because the transfers occurred more than 300 days prior to the date she filed her charge of discrimination. Finally, the court held that plaintiff's discriminatory discharge claim was exhausted because she filed her charge within 300 days of her discharge. Id. at 1225.

In Haynes , the plaintiff alternatively argued that even if her claims could not be directly based on time-barred adverse employment actions, she could use those events "as background evidence in support of a timely claim." Id. at 1223 (emphasis in original). The court, however, did not allow the plaintiff to use the transfer of her sales accounts as evidence of discriminatory intent because those discrete adverse actions were time-barred. Id. at 1227. Without this crucial evidence of discriminatory intent and with evidence that the employer neutrally implemented the PIP and was unbiased in executing the RIF, the court upheld summary judgment in favor of the employer on the plaintiff's claim. Id.

Applying the principles outlined in Haynes , the Court determines that Plaintiff was required to file a Charge of Discrimination within 300 days from the date of each discriminatory adverse employment action. In his Charge, Plaintiff alleged the following events: (1) he was placed on a PAT, (2) he was given negative PAT Assessments, (3) the PAT was extended, and (4) his employment was terminated. Although LANS concedes that Plaintiff's discriminatory discharge claim was timely, LANS maintains that Plaintiff cannot assert events that occurred between the initial notice of the PAT on March 7, 2013 and the conclusion of the PAT on October 6, 2013. LANS correctly maintains that out of the events that occurred in 2013, only the December 6, 2013 termination of Plaintiff's employment is directly actionable under Counts I and II. See also Daniels v. United Parcel Serv., Inc. , 701 F.3d 620, 628 (10th Cir. 2012) (dismissing plaintiff's claims based on failure to promote because she did not file a charge within 300 days of receiving notice that her application for promotion expired); Chung v. El Paso County/Colorado Springs Sch. Dist. # 11 , 115 F.Supp.3d 1242, 1257 (D. Colo. 2015) (dismissing discrimination claim based on failure to renew teaching contract because charge filed more than 300 days from the date plaintiff was notified of contract nonrenewal). However, unlike the plaintiff in Haynes , Plaintiff may use the events between March 2013 and October 2013 as background evidence to support his timely claim of discriminatory discharge because those events were not adverse employment actions. See Sunderman v. Westar Energy, Inc. , 307 Fed.Appx. 224, 229 (10th Ci