619 Fed.Appx. 733 (10th Cir. 2015), 14-2040, Bird v. Regents of N.M. State Univ.

Docket Nº:14-2040
Citation:619 Fed.Appx. 733
Opinion Judge:Scott M. Matheson, Jr., J.
Party Name:YELENA BIRD; FREEDOM CHETENI; JOHN MORAROS; SATYA RAO, Plaintiffs - Appellants, and ROBERT BUCKINGHAM, Plaintiff, v. REGENTS OF NEW MEXICO STATE UNIVERSITY; LARRY OLSEN, in his individual capacity; JAMES ROBINSON, in his individual capacity; ROBERT GALLAGHER, in his individual capacity; MICHAEL ZIMMERMAN, in his individual capacity, Defendants ...
Attorney:For Yelena Bird, Freedom Cheteni, John Moraros, Satya Rao, Plaintiffs & ; Appellants: Alice Kilborn, Moody & Warner, Albuquerque, NM; Christopher Murray Moody, Whitney Warner, Moody & Warner, P.C., Albuquerque, NM. For Regents of New Mexico State University, LARRY OLSEN, in his individual capacit...
Judge Panel:Before KELLY, PORFILIO, and MATHESON, Circuit Judges. Kelly, Judge concurs
Case Date:August 06, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 733

619 Fed.Appx. 733 (10th Cir. 2015)

YELENA BIRD; FREEDOM CHETENI; JOHN MORAROS; SATYA RAO, Plaintiffs - Appellants, and ROBERT BUCKINGHAM, Plaintiff,

v.

REGENTS OF NEW MEXICO STATE UNIVERSITY; LARRY OLSEN, in his individual capacity; JAMES ROBINSON, in his individual capacity; ROBERT GALLAGHER, in his individual capacity; MICHAEL ZIMMERMAN, in his individual capacity, Defendants - Appellees, and MICHAEL MARTIN, in his individual capacity, Defendant

No. 14-2040

United States Court of Appeals, Tenth Circuit

August 6, 2015

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UNPUBLISHED OPINION

(D.C. No. 1:08-CV-00851-WJ-RHS). (D. N.M.).

For Yelena Bird, Freedom Cheteni, John Moraros, Satya Rao, Plaintiffs & ; Appellants: Alice Kilborn, Moody & Warner, Albuquerque, NM; Christopher Murray Moody, Whitney Warner, Moody & Warner, P.C., Albuquerque, NM.

For Regents of New Mexico State University, LARRY OLSEN, in his individual capacity, JAMES ROBINSON, in his individual capacity, ROBERT GALLAGHER, in his individual capacity, MICHAEL ZIMMERMAN, in his individual capacity, Defendants - Appellees: Cody R. Rogers, Miller Stratvert, Las Cruces, NM; Luke Salganek, Lawrence R. White, Miller Stratvert, Las Cruces, NM; Luke Salganek, Miller Stratvert, Santa Fe, NM; Thomas Arthur Sandenaw Jr., Sandenaw & Anderson, Las Cruces, NM.

For MICHAEL MARTIN, in his individual capacity, Defendant: Cody R. Rogers, Miller Stratvert, Las Cruces, NM; Luke Salganek, Lawrence R. White, Miller Stratvert, Las Cruces, NM; Luke Salganek, Miller Stratvert, Santa Fe, NM; Thomas Arthur Sandenaw Jr., Sandenaw & Anderson, Las Cruces, NM.

Before KELLY, PORFILIO, and MATHESON, Circuit Judges.

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ORDER AND JUDGMENT[*]

Scott M. Matheson, Jr., J.

Plaintiffs sued the Regents of New Mexico State University (NMSU) and five NMSU officials. In their fourth amended complaint, they alleged defendants discriminated against them based on their race, retaliated against them for making discrimination claims, and retaliated against them for publicly expressing complaints about discrimination and retaliation at NMSU, in violation of 42 U.S.C. § § 1981 and 1983; § 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17; and the New Mexico Human Rights Act (NMHRA), N.M. Stat. Ann. § § 28-1-1 to 28-1-14.1

Over a three-year period, defendants filed numerous motions for summary judgment or partial summary judgment on plaintiffs' claims; and plaintiffs Bird, Moraros, and Cheteni moved for partial summary judgment on their claims. The district court denied plaintiffs' motions and granted summary judgment to defendants on all of the plaintiffs' federal claims and some of their state-law claims under the NMHRA. As a result, the district court declined to exercise supplemental jurisdiction over Dr. Bird's and Dr. Moraros's last two remaining NMHRA claims and entered judgment for defendants.

Plaintiffs appeal from 14 orders. Each ruled against them and in favor of defendants.2 Plaintiffs advance no arguments as to eight of the orders. We therefore do not review them. As to the other six orders, their briefing suffers pervasive deficiencies,

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including failure to acknowledge or challenge the court's reasons supporting its conclusions that their claims lack sufficient evidentiary basis. These deficiencies foreclose us from considering and in some instances even ascertaining what might otherwise have been some meritorious arguments. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

BACKGROUND3

The defendants are the Regents of NMSU; 4 Robert Gallagher, who was President of NMSU's Board of Regents; Michael Zimmerman, who was Registrar; Larry Olsen, who was a professor of health science, the Associate Dean for Academics and Research in the College of Health and Social Services, and, during the Fall 2007 semester, the interim Dean of the College of Health and Social Services; and James Robinson, who was Chairman of the Department of Health Sciences.

Plaintiffs John Moraros, a Hispanic, and Yelena Bird, an African American, are husband and wife. They entered NMSU in 2002 as graduate students after completing medical degrees in Mexico. Both obtained two degrees from NMSU: master's degrees in public health in 2004 and Ph.D. degrees in molecular biology in 2007. NMSU employed both of them as non-tenure-track faculty members during their Ph.D. programs. In late 2006 or early 2007, they complained about discrimination at NMSU. They spent much of 2007 in Seattle doing research. Upon returning to Las Cruces, both submitted vouchers for their travel expenses, which resulted in an internal audit concerning duplicate requests each of them made for reimbursement. The auditor interviewed them. The February 2008 audit report concluded they may have attempted to defraud the University, not that they merely submitted duplicate requests by mistake. The Provost did not renew their teaching contracts. NMSU informed Dr. Bird and Dr. Moraros in February 2008 their employment would terminate in May 2008.

In the spring of 2008, Dr. Bird and Dr. Moraros both gave press interviews, complaining about discrimination and retaliation at NMSU. Mr. Gallagher responded. Although Dr. Bird and Dr. Moraros subsequently applied for and were granted admission as students to NMSU's School of Social Work in June 2008, their admissions were later rescinded. They claimed defendants threatened to revoke their NMSU degrees.

Plaintiff Freedom Cheteni, a black male from Zimbabwe, entered the United States in 2002 on an F-1 student visa and applied to immigration officials for political asylum in 2006. He entered NMSU in 2007 as a graduate student to work on a master's degree in public health. He worked for Dr. Moraros as a graduate assistant during the 2007-2008 school year. Beginning in February 2008, Mr. Cheteni complained about, and filed charges of, discrimination and retaliation at NMSU, both with NMSU and the Equal Employment Opportunity Commission (EEOC). In the spring of 2008, Mr. Cheteni also spoke with journalists, complaining of discrimination and retaliation at NMSU. Mr. Gallagher responded about Mr. Cheteni's complaints.

In March 2008, Mr. Cheteni applied for admission to the Ph.D. program in economics in the College of Business. In the summer of 2008, his graduate assistantship in the Department of Health Sciences was

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not renewed for the 2008-2009 school year. Although he had been charged in-state tuition for the 2007-2008 school year based on his pending asylum application, he was charged out-of-state tuition for the Fall 2008 semester. He paid the in-state portion of his tuition for that semester, but he was not allowed to enroll for the Spring 2009 semester until he paid the balance of out-of-state tuition. Due to the loss of his graduate assistantship, however, he could not afford to enroll for the Spring 2009 semester, and NMSU reported to immigration officials that he was not enrolled. His failure to enroll in school put him out of student status for immigration purposes by March 2009. He was arrested by immigration officials on April 15, 2009, and was detained for approximately five months.

Plaintiff Satya Rao, from India, was hired as an assistant professor in NMSU's Department of Health Sciences in 1996, promoted to associate professor in 2001, and granted tenure in 2002. She inquired into applying for a promotion to full professor in 2007, but did not due to Dr. Robinson's expressed lack of support. In January 2008, Dr. Rao began complaining about discrimination at NMSU. She filed an EEOC charge of discrimination in March 2008. She also spoke to journalists about her concerns. She applied for a promotion to full professor in 2009, but her application was denied.

II.

ISSUES ON APPEAL

Plaintiffs assert seven general issues in their opening brief. Aplt. Opening Br. at 2-3. But their statement of the issues does not specify how the plaintiffs think the district court erred. See id. We attempt to glean this information from the argument section of their opening brief.

Dr. Bird and Dr. Moraros assert four of the general issues. First, they argue their claims of race discrimination and retaliation against NMSU should be tried because they presented sufficient evidence that NMSU's proffered reasons for (a) the nonrenewal of their teaching contracts, (b) the rescission of their admission to NMSU's School of Social Work following their nonrenewal, and (c) the threats to revoke their NMSU degrees following their nonrenewal were a pretext for discrimination. Second, they argue their claims of race discrimination and retaliation against Dr. Robinson and Dr. Olsen should be tried because they presented sufficient evidence that Dr. Robinson's and Dr...

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