Smith v. FDC Corp.

CourtSupreme Court of New Mexico
Citation787 P.2d 433,109 N.M. 514,1990 NMSC 20
Docket NumberNo. 18126,18126
Parties, 52 Fair Empl.Prac.Cas. (BNA) 245, 53 Empl. Prac. Dec. P 39,872, 58 USLW 2555 Alvin SMITH, Plaintiff-Appellee, v. FDC CORPORATION, Defendant-Appellant, v. Roger COX, Intervenor-Appellant.
Decision Date15 February 1990

Page 433

787 P.2d 433
109 N.M. 514, 52 Fair Empl.Prac.Cas. (BNA) 245,
53 Empl. Prac. Dec. P 39,872, 58 USLW 2555
Alvin SMITH, Plaintiff-Appellee,
FDC CORPORATION, Defendant-Appellant,
Roger COX, Intervenor-Appellant.
No. 18126.
Supreme Court of New Mexico.
Feb. 15, 1990.

Page 435

[109 N.M. 516] F. Douglas Moeller, Farmington, for defendant-appellant FDC.

The Payne Law Firm, P.C., H. Vern Payne, Marcia E. Lubar, Albuquerque, for intervenor-appellant Cox.

Mettler & LeCuyer, P.C., Earl Mettler, Albuquerque, for plaintiff-appellee.


BACA, Justice.

Following a bench trial for damages based on claims of age and race discrimination in employment in violation of the New Mexico Human Rights Act, NMSA 1978, Sections 28-1-1 to -7, 28-1-9 to -14 (Repl.Pamp.1987), before the District Court of San Juan County, FDC Corporation (FDC), defendant below, and Roger Cox, intervenor, appeal the judgment of the court in favor of plaintiff Smith and the award of damages of $54,134 to be assessed against Cox for violation of a post-judgment discovery order. We affirm in part and reverse in part.


Smith, a Navajo Indian, worked at FDC's concrete factory and had been employed there for approximately ten years prior to his discharge in December 1983. At that time, Smith was fifty-nine years old; he was the only Native American employed at the plant, and fewer than five percent of the plant's employees were over age fifty. Although the job involved physical labor, Smith was qualified and physically and mentally able to perform the tasks required of him.

Smith was fired purportedly for being disrespectful to his supervisor and for operating a machine in an unsafe manner. A machine upon which Smith was working evidently was accidentally started up, threatening the foreman with physical injury. However, evidence indicated that the machine was under the control of the supervisor, not Smith, at the time of the

Page 436

[109 N.M. 517] incident and that the foreman was operating the machine contrary to prudent safety measures. Additionally, although other incidents of unsafe operation of machinery had occurred at the plant, only Smith was terminated purportedly for unsafe practices; the other unsafe incidents all involved younger and non-Indian employees who were not discharged, although the accidents were at least of equal severity.

Several incidents indicate that age and race-based animus was directed toward Smith. The factory work force consisted mainly of young Hispanic employees. On several occasions, Smith's foreman called him "old man" and intimated a desire that Smith retire soon.

Smith was hired in 1973 at a wage of $4.00 per hour. After his termination, Smith attempted to find other work; however he was unable to locate full-time employment, although he occasionally hauled wood. He also received public assistance payments and social security.

Smith, after a judgment in his favor, initiated further discovery in aid of its execution. Cox, allegedly the sole shareholder of FDC but not a named party in this suit, was subpoenaed, and he was asked to produce certain documents. FDC was also issued a subpoena duces tecum. When Cox failed to comply with the discovery requests in a timely manner, the court sanctioned him by ordering him to personally satisfy the judgment.

Appellants have presented the following issues for our consideration: (1) whether there is substantial evidence to support the trial court's finding of discrimination and award of damages; (2) whether the court should have set off plaintiff's earnings from hauling wood, public assistance, and social security in determining damages; (3) whether the award of attorney fees was reasonable; and (4) whether the court improperly assessed the judgment against a nonparty as sanctions for noncompliance with discovery requests.


The New Mexico Human Rights Act, NMSA 1978, Section 28-1-7, which tracks the language of the federal Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2, makes it unlawful for an employer to discriminate against an individual on the basis of age or race.

In this suit based on NMSA 1978, Section 28-1-7, for Smith to prevail he was required to demonstrate that FDC discriminated against him in terminating his employment because of his race or age. Although the burdens of proof and methodology for proving employment discrimination under the New Mexico Human Rights Act have not previously been addressed by this court, the United States Supreme Court has considered this question in interpreting the Civil Rights Act of 1964, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).1 The evidentiary methodology adopted therein provides guidance for proving a violation of the New Mexico Human Rights Act. Our reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that we have adopted federal law as our own. Our analysis of this claim is based on New Mexico statute and our interpretation of our legislature's intent, and, by this opinion, we are not binding New Mexico law to interpretations made by the federal courts of the federal statute.

Page 437

[109 N.M. 518] The McDonnell Douglas methodology, whereby the burden of persuasion shifts in intermediate stages, was developed because often direct proof of discrimination is not available. The analysis allows proof of discriminatory intent absent direct proof. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). This framework, however, is not a required method of proof; it is only a tool to focus the issues and to reach the ultimate issue of whether the employer's actions were motivated by impermissible discrimination. See id. at 253 n. 6, 101 S.Ct. at 1094 n. 6; Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983).2

A prima facie case of discrimination may be made out by showing that the plaintiff is a member of the protected group, that he was qualified to continue in his position, that his employment was terminated, and that his position was filled by someone not a member of the protected class. Hawkins v. CECO Corp., 883 F.2d 977, 982 (11th Cir.1989); Haskell v. Kaman Corp., 743 F.2d 113, 119 n. 1 (2d Cir.1984).3 A prima facie case may also be made out through other means; not all factual situations will fit into any one type of analysis, although unlawful discrimination may nevertheless be present. For example, a prima facie case can be shown absent a demonstration that the plaintiff was replaced by someone not in the protected class if he can show that he was dismissed purportedly for misconduct nearly identical to that engaged in by one outside of the protected class who was nonetheless retained. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282-84, 96 S.Ct. 2574, 2579-81, 49 L.Ed.2d 493 (1976); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185-86 (11th Cir.1984). This prima facie case may then be rebutted by evidence that the plaintiff was dismissed based on a nondiscriminatory motivation. However, the entire McDonnell Douglas framework may be bypassed through a showing of intentional discrimination; the purpose of the test is to allow discriminated-against plaintiffs, in the absence of direct proof of discrimination, to demonstrate an employer's discriminatory motives. See Loeb v. Textron, Inc., 600 F.2d 1003, 1018-19 (1st Cir.1979). When direct evidence of discriminatory motive exists, each element of the McDonnell Douglas test need not be proved--the New Mexico Human Rights Act prohibits discrimination based on age and race, and if a plaintiff, such as Smith, can show through direct evidence that he was discriminated against because of an impermissible categorization, that is all that is required for him to prevail. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1112-13 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981); Loeb, 600 F.2d at 1014.

FDC contends that there is no evidence supporting the court's finding of discrimination. It maintains that the statistical evidence presented was flawed and did not show that the composition of the work force demonstrated an unlawful pattern of discrimination. It argues that no evidence was submitted regarding the racial background of the work force, and that any

Page 438

[109 N.M. 519] evidence of the racial composition in the record is meaningless without evidence of the pool from which employees were drawn. Much of its argument is based on the contention that the evidence offered regarding the racial composition of the work force was based on a superficial analysis of surnames, which it maintains is not determinative of race. It further argues that there was a failure of proof concerning the race of other employees who were involved in accidents but were not dismissed.

In reviewing a decision to determine whether it is supported by substantial evidence, we examine the record for relevant evidence such that "a reasonable mind might accept as adequate to support a conclusion." Toltec Int'l, Inc. v. Village of Ruidoso, 95 N.M. 82, 84, 619 P.2d 186, 188 (1980). We resolve disputed facts in favor of the party prevailing below, indulging all reasonable inferences in favor of the verdict and disregarding contrary inferences, and we do not independently weigh conflicting evidence. Id.

Smith presented evidence that he was a member of two protected groups. He also presented evidence that he was qualified at the time of his termination to fully perform his job, that he was fired, and that other factory workers, who were not members of protected groups, were not dismissed when they committed similar safety infractions. Evidence was...

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