Delopez v. Bernalillo Public Schools ( 2022 )

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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 22, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
GWENDOLEN DELOPEZ,
Plaintiff - Appellant,
v. No. 21-2119
(D.C. No. 1:19-CV-00735-JCH-KK)
BERNALILLO PUBLIC SCHOOLS; (D.N.M.)
DEMETRIA NAVARRETTE; KEITH
COWAN; TAMIE PARGAS; ERIC
JAMES,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Appellant Gwendolen Delopez appeals the district court’s order granting
summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part
and reverse in part.
BACKGROUND
Delopez worked as an art teacher for Bernalillo Public School (“BPS”)
System. From 2008 to 2018, she worked at Carroll Elementary School, within BPS.
During the 2017–2018 school year. Delopez claims that she was bullied by Carroll
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Elementary staff and administrators, particularly Principal Demetria Navarrette.
Delopez now claims age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”) and the New Mexico Human Rights Act (“NMHRA”).
Delopez claims that Navarrette’s age-discriminatory animus created an
environment in which it was acceptable to make fun of and exclude her. Delopez
alleges that at the beginning of the 2017–2018 school year, Navarrette made faces
behind Delopez’s back to the secretary, excluded Delopez during team-building
exercises, allowed other employees to exclude her from their cliques, and made snide
remarks to Delopez in front of other Carroll Elementary staff.
About ten days into the school year, Delopez left Carroll Elementary to pick
up student artwork displayed at a nearby elementary school. She notified front-desk
staff that she was leaving and signed out, but rather than wait in a line of other people
waiting to speak with Navarrette, Delopez left without informing Navarrette that she
was leaving. Navarrette gave Delopez a verbal warning for not notifying her directly
before leaving school grounds. Delopez argued that other teachers had left the school
without express permission and those teachers did not receive a verbal warning.
The issues extended into Delopez’s classroom. On December 11, 2017,
Delopez peeled a scab off a second-grade student in art class. The wound bled
profusely. Delopez applied two band-aids and sent the student to the nurse’s office.
Delopez says that she accidentally mistook the scab for dried-on glitter glue.
Several days later, Navarrette sent Delopez a formal letter of reprimand for
four separate events: (1) addressing an educational assistant in a harsh tone and
2
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saying, “I’m talking to you”; (2) using a confrontational tone and body language with
a BPS employee; (3) being rude on the phone to a different BPS employee when
requesting information; and (4) peeling the scab off the student.1 The letter warned
Delopez that further action could result in termination of her contract.
Delopez signed the formal letter of reprimand but submitted a rebuttal letter
about a week later. There, Delopez denied having used a confrontational tone with
the educational assistant and asserted that she had spoken to her in a “calm, matter-
of-fact voice.” Suppl. App. at 96. Delopez attributed the complaint against her to
misunderstandings, language barriers, and responding to rude tones directed at her
first. She reiterated her position that the scab incident was an accident and noted that
she immediately apologized to the student and obtained medical attention.
On March 23, 2018, Delopez received her end-of-year teaching evaluation
from Navarrette, which was significantly lower than in past years. Delopez received
only average scores in several categories, including (1) establishing a culture for
learning; (2) managing classroom procedures; (3) participating in a professional
community; and (4) growing and developing professionally. Navarrette specifically
identified Delopez’s lack of professionalism with colleagues and administrators as an
area needing improvement. But the review was not wholly negative. Navarrette
commended Delopez for her knowledge and use of resources as an art teacher. Even
so, this was the lowest-rated evaluation Delopez had received in the past three years.
1
The letter originally referred to “three issues” but listed four bullet points. On
January 18, 2019, this letter was amended to properly list four issues.
3
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On April 16, 2018, BPS Superintendent Keith Cowan sent an appointment
memorandum to Delopez, approving her teaching contract with BPS for the
upcoming 2018–2019 school year. He did so despite the letter of reprimand, her
conflicts with Navarrette, and her lower scores on the annual evaluation. Delopez
signed and accepted the 2018–2019 teaching contract.
On April 27, 2018, Delopez submitted a union grievance over the teaching
evaluation. She denied committing any unprofessional behavior and instead asserted
that her Carroll Elementary colleagues had acted unprofessionally. She attributed her
lower annual evaluation scores to their being based on literacy standards inapplicable
to art classes. She claimed that Navarrette had arbitrarily assigned grades for certain
categories of the evaluation without giving a valid reason. For instance, Delopez
complained of a low score for “Demonstrating Flexibility” that gave no basis for the
score. (Navarrette provided some reasoning for lower scores in other categories.)
Delopez also asked for more professional-development opportunities.
Though grievances are reserved for disputes arising from the union’s
Collective Bargaining Agreement, Eric James, the BPS Human Resources Director,
still held a meeting with Navarrette and Delopez to resolve the disagreement.
Navarrette did not modify Delopez’s scores but agreed to give Delopez more
opportunities for professional development in the upcoming school year. Navarrette
stated that she looked forward to working with Delopez in the next year.
But on May 7, 2018, Delopez had further issues while teaching her first-grade
art class. A male autistic student began running around erratically and hiding under
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tables. Unprovoked, he “stabbed” another student with a pencil. Suppl. App. at 32.
Fortunately, no students were injured. Delopez called the special-education teacher
and the full-time first-grade teacher for help, but both were busy and unable to assist.
While Delopez was on the phone with those two teachers, a female student from the
class went under the desk, sat behind the male student, and held him from behind.
The male student was subdued and appeared to be calm and content in this position.
Concerned he would begin acting up again, Delopez instructed the female student to
hold the male student’s torso while Delopez held his legs so they could carry him
down the hall to the special-education classroom. During the transport, the remaining
students were left alone in the classroom for about forty-five seconds.
The male student originally resisted Delopez’s efforts by kicking when she
grabbed his legs, but after she told him to stop, he calmed down and did not resist.
She maintained that she did not forcefully restrain him and that she was trying to
keep the rest of the students safe because she was concerned the male student would
again misbehave. Delopez insisted that she made the best choice given the situation.
Because she felt the office assistants were not helpful or polite to her when she
had reached out in the past, Delopez did not call the main office during this incident.
She also did not use her walkie-talkie to radio for help from other faculty. Her only
attempts to control the student’s behavior were telling him to stop and making two
phone calls for help. No educational assistants were available to help in the
classroom because of a substitute-teacher shortage.
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BPS’s Crisis Prevention Intervention (“CPI”) training dictates that Delopez
should have taken all the students into the hall, left the problem-causing student in
the classroom, and then called for assistance from another teacher. BPS had only one
designated CPI-certified teacher, and Delopez had never received nor requested CPI
training. Though Delopez had received an individualized education plan for the male
autistic student, she had not read it.
The next day, BPS placed Delopez on paid leave while it investigated the
incident. Two days later, Navarrette issued a formal letter of reprimand stating that
Delopez had exhibited egregious, unprofessional conduct by carrying the student out
of the classroom. BPS claimed Delopez had endangered the male student, the female
student, and the remaining students in the classroom. The letter asserted that Delopez
had violated New Mexico law and Bernalillo School Board policy provisions that
regulated physical restraint in public schools. BPS Human Resources Director James
gave Delopez a copy of this letter, but Delopez refused to sign it.
After that, school officials—Navarrette, Superintendent Cowan, and James and
BPS Human Resources Director Tamie Pargas—met with Delopez to discuss further
administrative action.2 At the meeting, James noted that the male student had not
endangered the other students after he calmed down and stopped wielding a pencil as
a weapon. Delopez maintained that “[the female student] was restraining him, and a
2
Two meetings occurred on May 10, 2018: (1) a predetermination due-process
meeting at 10:00 a.m. and (2) a final meeting at 2:00 p.m. in which Delopez’s union
representative was present. All discussion of the meeting here refers to the recorded
meeting at 2:00 p.m.
6
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student is not supposed to restrain another kid.” Suppl. App. at 35. And she said that
she had feared that if the female student released him from the restraint, “he [was]
going to start this erratic behavior again.” Id. She believed that her students’ parents
“would have approved of [Delopez] getting him out [of the classroom] instead of
letting him [act up] again.” Id. Delopez asserted that this formal reprimand did not
relate to her conduct but was actually retaliation for the grievance she had filed on
April 27.
James stated that BPS had sufficient cause to terminate Delopez’s contract
immediately and to file a complaint with the New Mexico Public Education
Department (“PED”). But James pushed Delopez to voluntarily resign. As an
incentive, James promised that the most recent letter of reprimand would not go in
her file. He told Delopez that voluntarily resigning would enable her to reapply for
other BPS positions, to renew her teaching license, and to receive pay for the rest of
her contract. As another incentive, James also promised that the BPS administration
would not take any action against Delopez’s teaching license. James required
Delopez to accept or decline those terms right then, without any additional time to
consider her choices.
Delopez stated her belief that she was being discriminated against and was
being pressured to resign.3 But succumbing to the pressure, Delopez signed a
3
Delopez did not articulate a specific motive, such as age, for the
discrimination.
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handwritten resignation letter. At the time of her resignation, Delopez was aged fifty-
five years, and she was later replaced by an art teacher aged twenty-nine years.
About one month later, despite James’s promises to the contrary, Pargas and
Cowan reported the May incident to the PED. In turn, the PED case agent referred
the case to the prosecution unit. Ultimately, the prosecution unit took “no action” and
declined to prosecute Delopez. Suppl. App. at 126. Beyond this, the prosecution unit
made no additional factual determinations.
In June 2018, Delopez timely filed an Equal Employment Opportunity
Commission complaint for discrimination. After obtaining a right-to-sue letter, she
brought this lawsuit against BPS, Navarrette, Cowan, Pargas, and James in the
District of New Mexico, bringing ten claims relating to Defendants’ allegedly
discriminatory conduct. The district court dismissed all claims on summary
judgment. Delopez v. Bernalillo Pub. Schs., 558 F. Supp. 3d 1129, 1156 (D.N.M.
2021).
Delopez appeals that decision on five of the ten counts. Specifically, she
appeals the grant of summary judgment against her following claims: (1) the
constructive-discharge claim under the ADEA; (2) the constructive-discharge claim
under the NMHRA; (3) the age-discrimination claim under the ADEA; (4) the age-
discrimination claim under the NMHRA; and (5) the breach-of-contract claim under
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New Mexico law.4 Delopez contends that the district court did not make all
reasonable factual inferences in her favor and erred in finding that she did not
establish pretext on her age-discrimination claims. Delopez also argues that the
district court erred in ruling that she did not raise a genuine issue of material fact on
her constructive-discharge claims. Finally, Delopez claims that the district court
improperly dismissed her breach-of-contract claim for failure to exhaust state
administrative remedies.
DISCUSSION
I. Standard of Review
We review de novo a grant of summary judgment under the same standard as
applies in the district court. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994
(10th Cir. 2019). We draw all reasonable inferences and resolve all factual disputes
for the nonmoving party. Litzsinger v. Adams Cnty. Coroner’s Off., 25 F.4th 1280,
1287 (10th Cir. 2022) (internal citation omitted). A court must grant summary
judgment “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).
4
In Delopez’s opening brief, she asks us to reverse the grant of summary
judgment against five of her claims, those being claims I, IV, VII, VIII, and X. But in
her reply brief, Delopez seems to enlarge her argument to include claims II and V,
which are retaliation claims under the ADEA and NMHRA. Delopez specifically
stated in her opening brief that she was not pursuing retaliation claims on appeal.
This Court may not address arguments raised for the first time on appeal in a reply
brief. United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). Delopez has
waived any arguments on Counts II and V.
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II. Summary Judgment on the Discrimination Claims
A. Age-Discrimination Claims Under the ADEA and NMHRA
“[T]o succeed on a claim of age discrimination [under the ADEA], a plaintiff
must prove by a preponderance of the evidence that her employer would not have
taken the challenged action but for the plaintiff’s age.” Jones v. Okla. City Pub.
Schs., 617 F.3d 1273, 1277 (10th Cir. 2010) (internal citation omitted). Absent direct
evidence of age discrimination, we apply the McDonnell Douglas three-step burden-
shifting test. Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1056
(10th Cir. 2020) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973)). First, a plaintiff must make a prima facie case of age discrimination by
showing that she was: (1) over forty years old; (2) otherwise performing satisfactory
work; (3) terminated or constructively discharged from employment; and (4) replaced
by a younger person. Id. The burden on this step is “not onerous.” Plotke v. White,
405 F.3d 1092, 1099 (10th Cir. 2005) (internal citation omitted); Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir. 2008) (holding that proof of
actual or constructive discharge will satisfy the prima facie case). Once a plaintiff
does so, the burden shifts to the employer to show a “legitimate, ‘nondiscriminatory
reason’ for its ‘adverse employment action.’” Plotke, 405 F.3d at 1099 (quoting Wells
v. Colo. Dep’t of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003)). If the employer can
provide that reason, the burden shifts back to the plaintiff to show the employer’s
given reason is pretext for discrimination. Id.10
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For an age-discrimination claim under the NMHRA, New Mexico courts use
the McDonnell Douglas test as a guide. Smith v. FDC Corp., 787 P.2d 433, 436–37
(N.M. 1990). Courts analyzing age-discrimination claims under the NMHRA are not
bound by the exact constraints of the federal test. Id. Because Delopez provides no
separate arguments under the NMHRA, however, we analyze both the ADEA and the
NMHRA age-discrimination claims under the McDonnell Douglas test.
We assume, without deciding, that the district court correctly found that
Delopez had shown a prima facie case of age discrimination and that Defendants had
offered a legitimate, nondiscriminatory reason for the adverse employment action.
Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017); Johnson v. Weld
County, 594 F.3d 1202, 1211 (10th Cir. 2010). That leaves us needing to determine
whether Delopez has raised a genuine issue of material fact that Defendants’
proffered legitimate reason is a pretext for discrimination. Plotke, 405 F.3d at 1099.
For Delopez to show pretext under the ADEA, she “must show that age was a
determinative factor in the defendant’s employment decision, or show that the
defendant’s explanation for its action was merely pretext.” Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 529 (10th Cir. 1994) (internal citation omitted). Delopez
must demonstrate that “there is enough inconsistency or implausibility in [her]
employer’s stated explanation for the firing that a reasonable trier of fact could find it
unworthy of belief.” Roberts v. Int’l Bus. Machs. Corp., 733 F.3d 1306, 1309 (10th
Cir. 2013) (internal citation omitted).
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At bottom, Delopez has not provided evidence that Defendants were motivated
by an age-discriminatory animus. Delopez was fifty-five years old when she resigned
from BPS. But when she began working for BPS in 2008, she was already over forty
years old. Delopez does not assert that any younger, similarly situated employees
were treated differently from her. In fact, thirty-seven out of fifty-two Carroll
Elementary staff members were over forty years old, and the average age of Carroll
staff was forty-six years old. The record lacks any evidence that Defendants were
motivated to remove Delopez because of her age. Cone, 14 F.3d at 531–32 (restating
that a plaintiff must “show some correlation” between the alleged discrimination and
her age); Cates v. Regents of N.M. Inst. of Mining & Tech., 954 P.2d 65, 72 (N.M.
1998) (“[The plaintiff] did not produce evidence, circumstantial or direct, that a
factfinder might reasonably use to conclude that [defendants] intended to
discriminate.”).
We see no genuine dispute about whether Defendants’ actions were motivated
by Delopez’s age, as opposed to the episode in which she and a young female student
carried the male autistic student from her classroom. Even if Delopez’s actions were
in fact defensible and necessary, that would not establish that Defendants’ reasons for
terminating her were pretextual. Riggs v. Airtran, 497 F.3d 1108, 1119 (10th Cir.
2007). Even after the lower performance evaluation, the numerous conflicts between
Delopez and other staff, the scab incident, and the formal letter of reprimand, BPS
still extended an offer to renew her contract for the next year. These circumstances
do not support the notion that BPS was looking for a pretextual reason to fire
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Delopez for her age. Instead, it suggests that BPS viewed Delopez as an acceptable
teacher until she acted in a way that the administration could not ignore or justify.
We will not second-guess BPS’s decision to terminate Delopez, originally
made by those in the best position to evaluate the circumstances. Riggs, 497 F.3d at
1119. Defendants have consistently defended their actions as a response to the
incident with the male student and we see no evidence of an age-based motivation.
We affirm the district court’s grant of summary judgment on Delopez’s ADEA and
NMHRA age-discrimination claims.
B. Constructive-Discharge Claims Under the ADEA and the NMHRA
The test for determining whether an employee was constructively discharged is
the same under both Tenth Circuit and New Mexico law.5 See Gormley v. Coca-Cola
Enters., 109 P.3d 280, 282 (N.M. 2005). Constructive discharge turns on whether the
employer made working conditions intolerable by its illegal discriminatory acts.
Derr, 796 F.2d at 344.
Delopez has failed to prove any discriminatory act. As previously stated,
Delopez has not produced evidence that age discrimination motivated Defendants’
actions. Constructive discharge is intertwined with the employer’s discriminatory
5
The full test for constructive discharge under the ADEA is whether the
employer made working conditions so intolerable that a reasonable person would feel
she has no choice but to resign. Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.
1986); James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir. 1994) (citation
omitted). Because Delopez did not show an age-discriminatory animus, we need not
discuss this test further. See Derr, 796 F.2d at 344.
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motivation, and without such a motivation, there is no cognizable claim of
constructive discharge under the ADEA or the NMHRA. Hulsey v. Kmart, Inc.,
43 F.3d 555, 558 (10th Cir. 1994). We affirm the district court’s grant of summary
judgment to BPS on Delopez’s constructive-discharge claims.6
III. Breach of Contract
The district court granted summary judgment to BPS on Delopez’s breach-of-
contract claim on the statutory ground that she had failed to exhaust her
administrative remedies. Delopez, 558 F. Supp. 3d at 1155. An employee terminated
from a New Mexico public school must follow the administrative process after
receiving notice of termination and request a hearing with the local school board.
N.M. Stat. Ann. § 22-10A-24(C) (2022). If the employee does not follow this
process, the employee cannot bring a lawsuit in court. § 22-10A-24(C), (E), (F)
(detailing the administrative-hearing process when an employee has been
terminated); § 22-10A-25(A), (P) (explaining that the remedy to contest the
administrative hearing result is binding arbitration and a court may review only the
arbitration decision if it was obtained by corruption, fraud, deception, or collusion).
On appeal, Delopez argues that the statute did not impose any requirement to exhaust
administrative remedies, because she never received written notice of termination—a
statutory requirement to trigger the administrative process.
6
Because we affirm the district court’s primary holding on the ADEA and
NMHRA claims, we do not reach the alternative grounds for affirmance raised by
Defendants.
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In dismissing Delopez’s contract claim for failing to exhaust administrative
remedies, the district court relied heavily on Sanchez v. Board of Education,
362 P.2d 979 (N.M. 1961). Delopez, 558 F. Supp. 3d 1129, 1153–54. For the purpose
of the breach-of-contract analysis, the district court first assumed that Delopez had
proved de facto termination through her forced resignation. Id. at 1154 (“The Court
will again assume without deciding that Plaintiff brought forward enough evidence
from which a reasonable jury could conclude that she involuntarily resigned, and that
her employment was, de facto, terminated.”). The court next assumed, without
deciding, that her resignation qualified as a constructive termination. Id. (“Plaintiff
argues that when she resigned on May 10, 2018, she did so under pressure such that it
was involuntary and constituted a constructive termination. Assuming that is the
case, then Plaintiff had notice as of May 10, 2018, of her constructive termination.”).
The district court determined that, because Delopez was de facto terminated,
she was required to submit a written request for a hearing in front of the local school
board to challenge her termination. Id. at 1154–55 (citing § 22-10A-24). Though the
district court recognized that BPS did not provide Delopez a written notice of
termination, it reasoned that this constructive termination was a satisfactory
equivalent, putting Delopez on notice of her need to comply with the statutory
administrative-appeal process. Id. at 1154. Delopez argues on appeal that the statute
requires express written notice of termination to trigger the administrative-appeal
process.
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In Sanchez, the teacher was terminated—he did not resign. 362 P.2d at 441. So
the school district provided him the necessary notice that triggered the administrative
process.7 Id. at 983; see also Alarcon v. Albuquerque Pub. Sch. Bd. of Educ.,
413 P.3d 507, 516 (N.M. Ct. App. 2017) (“The mandatory obligation given to
superintendents and school boards on the procedure to follow before a certified
school employee can be discharged could not be more clearly stated.”).
The governing statute reads as follows:
[A] licensed school employee who has been employed by a school
district . . . for more than two consecutive years . . . and who receives a
notice of termination pursuant to either § 22-10A-22 NMSA 1978 or this
section may request an opportunity to make a statement to the local school
board or governing authority on the decision to terminate the employee
or assistant by submitting a written request to the local superintendent or
state agency administrator within five working days from the date written
notice of termination is served upon the employee or assistant.
§ 22-10A-24(C) (emphasis added). Under the plain language of this statute, written
notice of termination is required. Defendants did not provide written notice of
termination, so nothing activated the administrative-exhaustion requirements.
Nor did the court explain how the statutory administrative-exhaustion
requirements would apply without Delopez’s having received a written notice of
termination. The statutory remedies do not apply to someone who resigns, even if
that resignation is under pressure.
7
Sanchez “was formally advised that his contract was not renewed and that he
was recommended to be placed on retirement status.” Sanchez, 362 P.2d at 980. The
court held this formal advisement was sufficient and did not discuss whether it was
written or verbal.
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In asserting her breach-of-contract claim, Delopez alleges BPS breached her
2017-2018 teaching contract by constructively discharging her without “just cause”
under the statute. § 22-10A-24(D). For BPS to terminate Delopez’s teaching contract
for the 2017-2018 school year, BPS must have had “just cause.” Id. Just cause is any
“reason that is rationally related to a school employee’s competence or turpitude or
the proper performance of the school employee’s duties and that is not in violation of
the school employee’s civil or constitutional rights.” § 22-10A-2(I). Delopez claims
that BPS never had just cause to “constructively terminate or discharge” her from
employment. App. at 29.
“The doctrine of constructive discharge is most often employed in the context
of claims of workplace harassment.” Douglas v. Orkin Exterminating Co., Inc.,
215 F.3d 1336, 2000 WL 667982, at *4 (10th Cir. 2000) (unpublished table decision).
But the New Mexico Supreme Court has recognized that an employee may rely on
constructive discharge “to recast a resignation as a de facto firing.” Gormley,
109 P.3d at 282 (internal citation omitted). The employee may independently prove
breach of contract by using constructive discharge to establish the wrongful
termination. Id. In Romero v. Gurule-Giron, the New Mexico Court of Appeals ruled
that a plaintiff may sustain a claim for breach of employment contract if the plaintiff
can show the alleged constructive-discharge action “was equivalent to termination or
suspension.” No. A-1-CA-38376, 2022 WL 2665942, at *11 (N.M. Ct. App. Jul. 11,
2022) (unpublished) (internal citation omitted). And the court has recognized that
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“overt pressure to resign” may constitute constructive discharge. Gormley, 109 P.3d
at 283 (citing Douglas, 2000 WL 667982, at *4).
Delopez may pursue a breach-of-contract claim based on her allegation that
Defendants constructively discharged her without just cause. The district court erred
by granting summary judgment for Delopez’s failure to exhaust administrative
remedies. Delopez didn’t have to exhaust those remedies without the proper notice,
and the administrative-exhaustion requirements of § 22-10A-24 do not apply to an
employee that resigns. We reverse the district court’s grant of summary judgment to
BPS on this claim and remand for further proceedings.
CONCLUSION
We affirm the district court’s order granting summary judgment to Defendants
on Delopez’s ADEA and NMHRA age-discrimination and constructive-discharge
claims. We reverse the district court’s order granting summary judgment on
Delopez’s state-law breach-of-contract claim and remand for further proceedings.
Entered for the Court
Gregory A. Phillips
Circuit Judge
18