July 31, 2019- Justin Goodman v. OS Restaurant Services, LLC, No. A-1-CA-35971

1
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____ _
3 Filing Date: July 31, 2019
4 No. A-l-CA-35971
5 JUSTIN GOODMAN,
6 	Plaintiff-Appellee,
7 v.
8 OS RESTAURANT SERVICES, LLC
9 f/k/a OS RESTAURANT SERVICES INC.
10 d/b/a OUTBACK STEAKHOUSE,
11 	Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
13 	Manuel I. Arrieta, District Judge
14 Brett Duke, P.C.
15 	Brett Duke
16 El Paso, TX
17 Law-Firm of Daniela Labinoti, P.C.
18 Daniela Labinoti
19 El Paso, TX
20 for Appellee
Court of Appeals of New Mexico
Filed 7/31/2019 11:26 AM

Rodey, Dickason, Sloan, Akin & Robb, P.A.
1 Edward Ricco
2 	Scott D. Gordon
3 Albuquerque, NM
4 for Appellant

1 	OPINION
2 HANISEE, Judge.
3 	{t} 	Defendant OS Restaurant Services, LLC (Outback) appeals from the district
4 court's judgment and certain pre- and posttrial rulings associated with a jury's
5 finding that Outback violated the New Mexico Human Rights Act (NMHRA). On
6 appeal, Outback contends that under the NMHRA: (1) Plaintiffs previously-filed
7 worker's compensation claim does not provide a basis for his claim that Outback
8 retaliated against him; (2) Plaintiff failed to establish that he had a reasonable,
9 objective, good-faith belief he was disabled or Outback believed him to be disabled
10 when it terminated his employment; and (3) inconsistent evidentiary and legal
11 	rulings by the trial court deprived Outback of a jury determination as to whether
12 Plaintiff was disabled. We affirm.
13 	I.
14 	{2}
BACKGROUND
Plaintiff hurt his ankle while working at the Outback Steakhouse in Las
15 	Cruces, New Mexico. He immediately reported the injury to his supervisor, Dustin
16 York. Several minutes later Plaintiff discovered that his ankle was discolored and
17 swollen to a size larger than a grapefruit. Unable to walk from the restaurant without
18 	support, Plaintiff left using crutches that his wife brought to him upon learning of
19 his injury. When Plaintiff told York that he wantedto file a worker's compensation
20 claim and asked for an incident report, York replied that Plaintiff did not need to file

1 such a claim and suggested that Plaintiff was not injured while working. York also
2 told Plaintiff that an incident report was not required to receive medical treatment
3 utilizing worker's compensation benefits, which was inaccurate. When Plaintiff
4 persisted in his desire to file a worker's compensation claim, York both delayed
5 submitting the claim with Outback's insurance carrier and entered an incorrect date
6 	of injury, 	which 	slowed the 	availability 	of Plaintiffs 	worker's 	compensation
7 benefits.
8 {3} 	According to Plaintiff, three days after his injury, York informed him that
9 because he wanted to file a worker's compensation claim, Plaintiff"would no longer
10 be promoted" to assistant manager, as Plaintiff had anticipated, because he was
11 	perceived to 	be 	"unreliable." 	Plaintiff nevertheless 	insisted that 	his 	worker's
12 compensation claim be submitted, at which point York continued to obfuscate,
13 	giving Plaintiff two toll-free numbers that were actually phone numbers for Wells
14 Fargo Bank. Plaintiff finally asked his medical care provider to call York, and York
15 	eventually acquiesced and told Plaintiff he would file the claim.
16 {4} 	Five days after his injury, Plaintiff asked York to make an accommodation for
17 him so he could return to work, but York refused. By then, Plaintiff could walk while
18 	wearing a protective boot, but not well enough to be a server. Plaintiff suggested that
19 he could expedite food orders (expediting work) or do prep work in the kitchen (prep
20 work), but York did not think Plaintiff could perform those alternative duties with
2

1 his impairment. Sometime later, Plaintiff told his coworker Eric Tyler that he wanted
2 to contact an attorney, which Tyler reported to another supervisor.
3 {5} 	Approximately five weeks after his injury, Plaintiff contacted Jacilyn Jolly,
4 Outback's employment paralegal, and reported that York had taken actions to delay
5 his worker's compensation benefits and refused to accommodate him. Two days
6 later, ostensibly because it was York's policy to terminate employees who had not
. 7 worked in over thirty days, Plaintiff was fired. Over the course of the next several
8 weeks, Plaintiff developed osteomyelitis, a rare type of bone infection that arose as
9 a complication of his ankle injury, spread through both of his legs, and persisted for
10 nine months.
11 	{6} 	Plaintiffs amended complaint alleged three causes of action. Under the
12 NMHRA, 	Plaintiff alleged 	alternative bases 	for 	liability: 	First, that 	Outback
13 	unlawfully discriminated against him based upon "his disability and/or perceived
14 	disability"; and Second, that Outback's actions "also constitute[d] a bad faith
15 	worker's compensation retaliation claim." Plaintiff also alleged common law tort
16 claims 	for 	retaliatory 	discharge, 	also 	premised 	upon 	Plaintiffs 	worker's
17 compensation claim, and for negligent hiring, training, supervision, and retention of
18 	York. Prior to trial, Outback filed its motion in limine which sought exclusion of
19 evidence related to "the exacerbation of Plaintiffs ankle injury," which Outback
20 contended 	to 	be 	irrelevant, 	and 	Outback's 	alleged 	"failure 	to 	accommodate
3

1 Plaintiffs disability" because Plaintiffs amended complaint did not allege such a
2 claim under the NMHRA. In its written order granting the motion in part, the district
3 court ruled that Plaintiff lacked evidence establishing a "long term or permanent"
4 injury that "substantially limit[s] 	a major life activity[,]" which rendered any
5 accommodation-premised 	claim 	non-cognizable 	under 	the 	NMHRA, 	but 	that
6 Plaintiff could assert that his medical treatment was delayed because of Outback's
7 actions.
8 {7} 	A jury trial ensued, and after the presentation of evidence Outback sought
9 judgment as a matter of law under Rule 1-050(A)(2) NMRA on all counts. As
10 relevant 	to 	this 	appeal, 	and 	first 	regarding 	Plaintiffs 	NMHRA 	claim 	for
11 	discrimination, Outback reminded the district court of its evidentiary ruling on
12 Outback's motion in limine, arguing that the trial evidence failed to establish that
13 	Plaintiffs injury was a serious medical condition as that term is utilized in the
14 NMHRA and did not reveal knowledge on the part of Outback regarding any such
15 	condition. 	Secondly, 	as 	to 	Plaintiffs 	NMHRA 	claim 	of retaliation, 	Outback
16 contended that Plaintiff failed to show that he "engaged in a protected activity" on
17 which retaliation was premised.
18 	{8} 	With respect to the first component of Outback's motion, the district court
19 stated that Plaintiff "ha[ d] failed to establish and [could not] establish that [his
20 injury] was a medical condition or disability as defined under the [NMHRA]." The
4

1 court added that the regulatory definition of a serious medical condition was unmet
2 because Plaintiff seemed only to have a "sprained ankle or a seriously sprained
3 ankle[,]" and "[t]here did not appear to be any impairment that would come out of it
4 nor [would be] expected." The court observed that "[t]he problem is we don't have
5 any medical evidence to substantiate the medical condition that existed as 	of
6 [Plaintiffs date of injury]. I was surprised that everybody pulled the medical records
7 out, but that's a trial decision." Accordingly, the court announced its intention to not
8 permit Plaintiffs claim of discrimination based on a serious medical condition or a
9 disability under the NMHRA to proceed to the jury. Although the record is less clear
10 regarding its rationale for permitting Plaintiffs NMHRA retaliation claim to proceed
11 	to the jury, the court stated its perception that Plaintiffs submission of a worker's
12 compensation claim could be a basis for it.
13 	{9} 	Before deliberations began the following morning, the district court instructed
14 the jury and provided it with a special verdict form. Among other responses supplied
15 	in conjunction with the jury's partial verdict for Plaintiff-that is, a verdict that
16 rested solely upon Plaintiffs NMHRA claim-the jury concluded that Plaintiffs
17 filing of a worker's compensation claim was not "a motivating factor" in Outback's
18 	decision to discharge him, nor had Outback negligently "retain[ed] or supervis[ed]"
19 	York. Consistent with the special verdict form, those answers appear to have
20 eliminated the common law torts of retaliatory discharge and negligent hiring,
5

1 supervision and retention of York. In answering "Yes" in response to the same
2 special verdict form's question as to whether or not Outback violated the NMHRA,
3 the jury's conclusion could only have rested·upon the lone instruction it received
4 regarding the NMHRA, which stated only generally that in order to have violated
5 the NMHRA Outback must have engaged in some form of "threat, retaliation, or
6 discrimination 	against 	[Plaintiff 	for] 	oppos[ing] 	an 	unlawful 	discriminatory
7 practice." The jury instructions lacked definitions or guidance regarding what
8 constitutes an unlawful threat, retaliatory act, or a discriminatory act or practice, and
9 the special verdict form did not seek specificity as to the basis for a finding of
10 Outback's liability under the NMHRA. Outback expressed reservations regarding,
11 	but notably did not object to the special verdict form, predicting that because the
12 form only generally asked whether Outback violated the NMHRA, "the appellate
13 	court will not know whether [an NMHRA verdict against Outback would rest upon]
14 protected activity involving Plaintiffs [w]orker's [compensation] claim, or ...
15 	things that fall within the four comers of the [NMHRA]." 1 In conjunction with its
16 affirmative response to the form's question regarding whether Outback violated the
17 NMHRA, the jury awarded Plaintiff $60,000 in damages for lost wages and $35,000
18 	in damages for emotional distress.
1In response to Outback's concern, the district court stated its contrary belief
that "the jury instructions ... are specific that the claim here is for retaliatory
discharge under ... the [NMHRA]. 	·
6

1 {to} 	Following the verdict, Outback filed a renewed motion for judgment as a
2 matter of law. The motion focused solely on whether an employee's filing of a
3 worker's compensation claim can amount to protected activity for the purpose of an
4 NMHRA retaliation claim. Specifically, it asserted that "[Plaintiff] prevailed on only
5 	... [his] claim that Outback had violated the anti-retaliation provision [of the
6 NMHRA] by discharging [Plaintiff] for filing a worker's compensation claim."
7 Plaintiff responded in part by arguing that "Plaintiff had multiple 	causes 	of
8 action ... under three legal theories from the same common core of operative facts"
9 and that aspect of the verdict that concluded that Outback violated the NMHRA was
10 	supported by testimony regarding Plaintiffs engagement in numerous protected
11 	activities for which retaliation is disallowed. In reply, Outback renewed its argument
12 that Plaintiff "failed to establish that he suffered from a disability or that he was
13 	perceived as disabled by Outback on or before the date that he was terminated. Nor
14 does Plaintiffs proof establish that it was objectively reasonable for him to believe
15 	that he was disabled on that date."
16 	{11} 	During the hearing on Outback's renewed motion, both parties and the district
17 court were unsure of the basis upon which the jury reached its verdict. For example,
18 	Outback believed the only basis for Plaintiffs NMHRA retaliation claim as it was
19 presented to the jury was Plaintiffs filing 	of a worker's compensation claim.
20 Plaintiff believed the district court "agreed with [Plaintiff]" that "there was another
7

1 cause of action under [the NMHRA that] prohibits threats,. reprisal, [and] retaliation
2 for making a complaint," 	including complaints about failure to 	accommodate
3 because of a disability. For its part, and reflecting on Outback's argument that the
4 jury was not instructed as to what constitutes an unlawful discriminatory practice or
5 protected activity under the NMHRA, the district court said,
6
7
8
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10
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12
13
14
15
16
17 	{12}
Yeah, I had difficulty in submitting both theories as alternative theories.
I would have preferred one over the other, but it went on both. The
special 	verdict 	[form 	expressed 	that] 	Outback 	had 	violated 	the
[NMHRA]. Now, the question is, what does [the jury's] finding mean?
To me, it means that they, the jury, found that in retaliation for filing a
worker's comp[ensation] claim on a serious physical injury, lithe jury
could have found that they terminated [Plaintiff]. That's how [ read it.II
It's not a tort claim, but it is a finding under the [NMHRA]. 1[he other
finding that's probable here from the jury is that [Plaintiff] had lopposed
an 	unlawful 	discriminatory practice 	. 	. 	. related to 	the 	worker's
comp[ensation] claim. 	[i
Adding to the perplexity, the district court's own position with respect to
18 	whether Plaintiff proved the occurrence of a serious medical condition diverged
19 from that expressed in its order granting Outback's motion in limine and its ruling
20 that appeared to grant Outback's pre-verdict motion for judgment as a matter of law
21 	as to Plaintiffs claim of disability discrimination under the NMHRA: "Now that
22 	I've sat at trial and I've seen the exhibits . . . there is evidence to tie the lack of
23 	accommodation 	as 	a 	retaliatory 	discriminatory 	practice" 	and that 	"there 	was
24 evidence here of a serious physical injury so I think the jury rightfully found so."
8

1 {13} 	Ultimately, the district court's ruling denying Outback's renewed Rule 1-050
2 motion rested upon its conclusion that: "The parties instructed the jury that [in order
3 for Plaintiff to prevail it must] find an unlawful discriminatory practice. I think the
4 jury could have tied in the worker's comp[ensation] claim to the serious medical
5 condition and that's what we've got. I can't see it any other different way."
6 Following issuance 	of the district court's 	one-page order 	of denial, 	Outback
7 appealed.
8 II. 	DISCUSSION
9 	{14} 	On appeal, Outback argues that the jury's verdict must be reversed, or that a
10 new trial should be granted, for three reasons. First, because the NMHRA does not
11 	protect 	Plaintiff from 	retaliation 	based 	on 	his 	filing 	a 	claim 	for 	worker's
12 compensation benefits. Second, because Plaintiff did not objectively and reasonably
13 	believe himself to be disabled or that he was regarded by Outback to be disabled
14 within the scope of the NMHRA. Third, because the district court's inconsistent
15 	rulings regarding the issue of Plaintiffs disability status deprived Outback of a jury
16 	determination on an essential element of Plaintiffs NMHRA retaliation claim.
17 A. 	Preliminary Matters
18 	{15} 	Before resolving Outback's points of appeal, we first address the nature of the
19 task at hand. We do so because our review of the district court record reveals an
20 overarching state of confusion poorly suited to clarification on appeal. The quandary
9

1 began when the 	district 	court partially 	granted 	Outback's 	motion in limine,
2 _appearing to exclude evidence related to Plaintiffs injury from the standpoint of
3 workplace accommodation, then nonetheless admitted non-medical evidence of
4 Plaintiffs injury and Outback's responses thereto, 	which reflected Outback's
5 unwillingness to allow Plaintiff to return to work in any capacity, its delay in filing
6 his worker's compensation claim, and ultimately its termination 	of Plaintiffs
7 employment. The confusion deepened when the district court purported to grant
8 Outback judgment as a matter of law as to that aspect of Plaintiffs NMHRA claim
. 9 that was premised on disability discrimination due to a serious medical condition,
10 then nonetheless generally instructed the jury that one basis upon which Outback's
11 	liability under the NMHRA could rest is discrimination. Finally, the special verdict
12 form (to which no party objected) cemented our inability to know just how Outback
13 	violated the NMHRA, only generically inquiring whether Outback violated the
14 NMHRA. Postverdict litigation did little .more than solidify the puzzlement of much
15 	that we are now asked to resolve on appeal. In this circumstance, therefore, we begin
16 by reiterating certain core appellate principles.
17 	{16} 	First, on appeal, "there is a presumption of correctness in the rulings and
18 	decisions of the [district] court[,] and the party claiming error must clearly show
19 error." Best v. Marino, 2017-NMCA-073, 142, 404 P.3d 450 (internal quotation
20 marks and citation omitted); see Farmers, Inc. v. Dal Mach. & Fabricating, Inc.,
10

1 1990-NMSC-100,, 8, 111 N.M. 6, 800 P.2d 1063 ("Appellant must affirmatively
2 demonstrate its assertion of error."). We do not presume a district court applied an
3 incorrect standard of proof. Robertson v. 	Carmel Builders Real Estate, 	2004-
4 NMCA-056,, 25, 135 N.M. 641, 92 P.3d 653: As well, "u]ury instructions become
5 the law of the case against which sufficiency of the evidence is to be measured."
6 Muncey v. Eyeglasses World, LLC, 2012-NMCA-120,, 21,289 P.3d 1255 (internal
7 quotation marks and citation omitted). A party that fails to object to jury instructions
8 "is in no position to complain about the theories of liability . . . and damages . . .
9 given to the jury." Pub. Serv. Co. of N.M v. Diamond D Const. Co., 2001-NMCA-
10 	082,, 28, 131 N.M. 100, 33 P.3d 651. More concretely, when a party has not raised
11 	a claim of jury instruction error on appeal, the "unchallenged jury instructions are
12 therefore the law of the case." Estate of Saenz v. Ranack Constructors, Inc., 2018-
13 NMSC-032,, 40, 420 P.3d 576. Jury verdicts will be affirmed when consistent with
14 the instructions given and the evidence at trial. See Littell v. Allstate Ins. Co., 2008-
15 	NMCA-012, ,, 14-16, 38-42, 70, 177 P.3d 1080 (upholding jury verdict premised
16 upon the plaintiffs claims of hostile work environment and retaliatory constructive
17 discharge based on the instructions provided and the evidence supporting the
18 	separate causes of action). Lastly, "[u]nder the 'general verdict rule,' a general
19 verdict may be affirmed under any theory supported by evidence unless an erroneous
20 jury instruction was given." Christopherson v. St. Vincent Hospital, 2016-NMCA-
11

1 097,, 23, 25-26, 384 P.3d 1098 (determining a verdict to be general in nature despite
2 responses to "special verdict" questions that "were very general" and recognizing
3 that the general verdict rule permits affirmance "on any of the seven theories
4 advanced by [the p]laintiff ... [if] supported by the evidence."); see Bustos v.
5 Hyundai Motor Co., 2010-NMCA-090,, 48, 149 N.M. 1,243 P.3d 440 (also stating
6 the general verdict rule).
7 {17} 	Outback challenges no specific pre-verdict ruling by the district court as a
8 stand-alone basis for reversal. It does not contend that the jury instructions, including
9 that which defined liability under the NMHRA or the special verdict form which
10 	sought only a general determination of liability under the NMHRA, were erroneous.
11 	It does not directly argue that the jury's verdict was not supported by sufficient
12 evidence or that the verdict itself was improper in light of the law of the case, here
13 	the 	unchallenged jury instructions. 	Moreover, 	if the jury's 	verdict 	is 	legally
14 sustainable on any NMHRA theory advanced by Plaintiff, we need consider its
15 	propriety no further.
16 	{18} 	Bearing in mind this overarching framework of appellate review, we first
17 address the determinative aspect of Outback's_ second point of appeal; that is, its
18 	contention that it is entitled to judgment as a matter of law on Plaintiffs NMHRA
19 retaliation claim because Plaintiff did not establish that he had an "objectively
20 reasonable, good faith belief that Outback regarded him as disabled" at the time
12

1 Plaintiff engaged in the protected activity of complaining to Jolly about York's
2 treatment 	of him. 	(Emphasis 	added.) 	Plaintiff counters 	that 	he 	"could have
3 reasonably believed that he possessed a handicap or serious medical condition
4 because Outback regarded him as having such a condition, even if his injury was not
5 in fact substantially limiting."
6 {19} 	Although Outback's framing of this issue and both parties' arguments on this
7 point reflect a misunderstanding of what it means for Outback to have regarded
8 Plaintiff to be disabled, which we will explain later in this opinion, we ultimately
9 conclude that Plaintiff established that Outback regarded him to be physically
10 handicapped as that term of art is utilized in the NMHRA. Based on our affirming
11 	this theory of liability in the context of the jury's general verdict, we decline to reach
12 Outback's contention that the filing of a worker's compensation claim cannot be a
13 	basis for liability under the NMHRA. Accordingly, we affirm the district court's
14 ruling on Outback's renewed motion for judgment as a matter of law and leave
15 	undisturbed the jury verdict in favor of Plaintiff on his NMHRA retaliation claim.
16 	We also conclude that the district court's inconsistent rulings do n~t warrant reversal
17 because Outback acquiesced to, or waived its objections to, the jury instructions and
18 	special verdict form that embodied the district court's rulings.
13

1 B. 	The New Mexico Human Rights Act
2 {20} 	Under the 	NMHRA, 	it is 	an unlawful 	discriminatory practice 	for 	"an
3 employer, unless based on a bona fide occupational qualification or other statutory
4 prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate
5 in matters of compensation, terms, conditions or privileges of employment against
6 any person otherwise qualified because of race, age, religion, color, national origin,
7 ancestry, sex, physical or mental handicap or serious medical condition[.]" NMSA
"8 	1978, § 28-1-7(A) (2004, amended 2019). It is also an unlawful discriminatory
9 practice for an employer to "engage in any form of threats, reprisal or discrimination
10 against any person who has opposed any unlawful discriminatory practice." Section
11 	28-1-7(1)(2).
12 	{21} 	The NMHRA defines "physical or mental handicap" as "a physical or mental
13 	impairment that substantially limits one or more of a person's major life activities.
14 A person is also considered to be physically or mentally handicapped if the person
15 	has a record of a physical or mental handicap or is regarded as having a physical or
16 mental handicap[.]" NMSA 1978, § 28-1-2(M) (2007). The NMHRA defines "major
17 	life activities" to be "functions such as caring for one's self, performing manual
18 tasks, 	walking, 	seeing, hearing, 	speaking, breathing, 	learning and working[.]"
19 	Section 28-1-2(N). 	Here, 	neither party suggests that the 	record 	supports the
20 proposition that Plaintiff actually had a physical handicap. The relevant question
14

1 with respect to Plaintiffs NMHRA retaliation claim, therefore, is whether Outback
2 regarded Plaintiff to be physically handicapped (disabled) when it retaliated against
3 him for opposing its unlawful discriminatory practice. See § 28-1-7(1)(2) (defining
4 retaliation under the NMHRA); § 28-1-2(M) ("A person is also considered to be
5 physically or mentally handicapped if the person has a record of a physical or mental
6 handicap or is regarded as having a physical or mental handicap[.]").
7 	{22} 	Our Supreme Court has instructed that in interpreting the NMHRA, "it is
8 appropriate to rely upon federal adjudication for guidance in analyzing a claim under
9 the Act," with the caveat that we have not "adopted federal law as our own," and
10 that we do not bind "New Mexico law to interpretations made by the federal courts
11 	of the federal statute." Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004,
12 18, 131 N.M. 607, 41 P.3d 333 (internal quotation marks and citation omitted). The
13 	NMHRA definition of "physical or mental handicap" is substantially similar to the
14 Americans with Disabilities Act's (ADA's) definition of "disability." Compare §
15 	28-l-2(M), with 42 U.S.C. § 12102(1) (2012) ("The term 'disability' means, with
16 respect to an individual[:] (A) a physical or mental impairment that substantially
17 limits one or more major life activities of such individual; (B) a record of such an
18 	impairment; 	or 	(C) 	being 	regarded 	as ·having 	such 	an 	impairment"). 	More
19 	importantly, Trujillo also stated that in the context of an NMHRA medical condition
20 discrimination case, the NMHRA terms "serious medical condition" and "handicap"
15

1 are interchangeable with the ADA term "disability." See 2002-NMSC-004, 18. The
2 ADA was amended in 2008 to "explicitly lower[] the standard for 'substantially
3 limits,' " and to state " 'the question of whether an individual's impairment is a
4 disability under the ADA should not demand extensive analysis.' " Rico v. Xcel
5 Energy, Inc., 893 F.Supp.2d 1165, 1168 (D.N.M. 2012) (quoting Pub. L. No. 110-
6 325, §§ 2(a)(6), 2(b)(5) (2008), 122 Stat. at 3553-54). As Outback notes, however,
7 the NMHRA has not been similarly amended and no reported New Mexico decision
8 has applied the amended federal standards to the NMHRA, so we rely on federal
9 cases interpreting the ADA prior to its 2008 amendments.
10 {23} 	The Tenth Circuit has stated that an employer regards an employee as
11 	impaired under the ADA-or in NMHRA parlance, regards an employee as having
12 a "physical handicap"-if it "( 1) ... mistakenly believes that a person has a physical
13 	impairment that substantially limits one or more major life activities, or (2) ...
14 mistakenly believes that the person's actual, non-limiting impairment substantially
15 	limits one or more major life activities." Luskv. Ryder Integrated Logistics, 238 F.3d
16 	1237, 	1241 	(10th Cir. 	2001) (internal quotation marks and citation omitted).
17 Interpreting just the ADA, this Court has applied the same definition. Katcher v.
18 Johnson Controls WorldServs., Inc., 2003-NMCA-105, 118,134 N.M. 277, 75 P.3d
19 	877 (citing Sutton v. 	United Air Lines, Inc., 	527 U.S. 471, 489 (1999), ADA
20 Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553).
16

1 {24} 	A prima facie case of retaliation under the ADA requires a plaintiff to prove
2 the following elements: (1) the plaintiff engaged in a protected activity; (2) the
3 plaintiff was 	subjected 	to 	an 	"adverse 	employment 	action 	subsequent 	to 	or
4 contemporaneous 	with 	the 	protected 	activity"; 	and 	(3) 	"there 	was 	a 	causal
5 connection between the protected activity and the adverse action." Selenke v. Med.
6 Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); see also UJI 13-2307
7 NMRA (Human Rights Act violation) ("An employer violates the Human Rights
8 Act if it engages in any form of retaliation against any person who has opposed any
9 unlawful discriminatory practice."). With respect to the first element, "to prosecute
10 an ADA retaliation claim, a plaintiff need not show that she suffers from an actual
11 	disability. Instead, a reasonable, good faith belief that the statute has been violated
12 	suffices." Selenke, 248 F.3d at 1264 (emphasis added). In other words, even if an
13 	ADA plaintiff is not actually disabled, a reasonable, good-faith belief on the part of
14 the plaintiff that he or she has engaged in activity protected by the statute will suffice.
15 	C.
16
17 	1.
18 	{25}
The District Court Did Not Err by Denying Outback's Renewed Motion
for Judgment as a Matter of Law
Standard of Review
We review the district court's denial of a renewed motion for judgment as a
19 matter of law under Rule 1-050(B) de novo, resolving all conflicts in the evidence
20 in the nonmoving party's favor. Williams v. Mann, 2017-NMCA-012,, 25,388 P.3d
21 	295. To the extent that Outback challenges evidentiary rulings that are relevant to its
17

1 argument that it is entitled to judgment as a matter of law with respect to Plaintiffs
2 NMHRA retaliation claim, we review evidentiary rulings for an abuse of discretion.
3 See Lewis v. Albuquerque Pub. Sch., 2018-NMCA-049,, 32,424 P.3d 643 ("With
4 respect to the admission or exclusion of evidence, we generally apply an abuse of
5 discretion standard when the application of an evidentiary rule involves an exercise
6 of discretion or judgment[.]") (alteration, internal quotation marks, and citation
7 omitted).
8 {26} 	Despite Outback's framing 	of this argument strictly as a matter of law
9 requiring de novo review of the district court's interpretation of the NMHRA, our
10 review here necessarily entails the jury's findings 	of fact in light of the jury
11 	instructions given at trial because as Outback argues, "[t]his issue ... [asks] whether
12 	[Plaintiff] presented evidence to support a necessary element of his [NMHRA]
13 	retaliation claim." 	We 	review jury verdicts 	deferentially because "[a]ppellate
14 reversal of jury verdicts must be done cautiously and only under a strict standard of
15 	review in order to safeguard a litigant's constitutional right to a jury trial. For this
16 reason a standard of review was designed to resolve all doubts in favor of the jury
17 verdict." Gonzales v. Sansoy, 1984-NMSC-098,, 5, 102 N.M. 136, 692 P.2d 522
18 	(citation omitted). See Baxter v. Gannaway, 1991-NMCA-120,, 11, 113 N.M. 45,
19 	822 P.2d 1128 ("[T]he appellate court should strive to uphold the decisions of the
20 fact[-]finder.").
18

1 {27} 	"Generally, an appellate court may affirm a trial court ruling on a ground not
2 relied on below if reliance on the new ground would not be unfair to the appellant."
3 Atherton v. Gopin, 2015-NMCA-003,, 36, 340 P.3d 630. Although in doing so we
4 may not "assume the role of the [district] court and delve into fact-dependent
5 inquiries[,] ... we may affirm the district court's order on grounds not relied upon
6 by the district court if those grounds do not require us to look beyond the factual
7 allegations that were raised and considered below." Id. (alteration, internal quotation
8 marks, and citation omitted).
9 2.
10
11 	{28}
Plaintiff 	Established 	That 	Outback 	Regarded 	Him 	As 	Physically
Handicapped Under the NMHRA
In the NMHRA's terms, Outback could not have committed an unlawful
12 discriminatory 	practice 	if Outback 	did 	not 	regard Plaintiff to 	be 	physically
13 	handicapped at the time he complained to Jolly, because then Plaintiffs complaint
14 to Jolly was not protected by the NMHRA. See § 28-1-2(M) ("A person is also
15 	considered to be physically or mentally handicapped if the person has a record of a
16 physical or mental handicap or is regarded as having a physical or mental handicap."
17 (emphasis added));§ 28-1-7(1)(2) (defining an unlawful discriminatory practice as
18 	an employer "engag[ing] in any form of threats, reprisal or discrimination against
19 any person who has opposed any unlawful discriminatory practice."). Because of the
20 absence of medical evidence apart from Plaintiffs testimony regarding his injuries,
21 	York's testimony at trial is crucial to our determination that Outback regarded
19

1 Plaintiff to be physically handicapped under the NMHRA. Referring to the time-
2 frame immediately after Plaintiff was injured, Plaintiffs counsel questioned York:
3
4
5
6
7
8
Plaintiffs counsel: So you saw [Plaintiff1 in crutches, he's telling you
he can't work, he's got records of physical injury, you regarded him as
being disabled, didn't you?
Mr. York: 	Disabled?
Plaintiffs counsel: Yeah.
Mr. York: 	I would say a sprained ankle is a disability.
9 But York's testimony that he believed Plaintiff to be disabled does not end our
10 analysis. For Plaintiff to prevail on his NMHRA retaliation claim on the theory that
11 	Outback terminated Plaintiff because 	Outback regarded 	him 	to 	be 	physically
12 handicapped, he needed to establish that Outback, through its employees, including
13 	York, believed, even if mistakenly, that Plaintiffs ankle injury substantially limited
14 one or more of his major life activities. See Lusk, 238 F.3d at 1241 (stating employer
15 	regards employee to be disabled if it "(1) ... mistakenly believes that a person has
16 a physical impairment that substantially limits one or more major life activities, or
17 (2) 	... mistakenly believes that the person's 	actual, non-limiting impairment
18 	substantially limits one or more major life activities."). The major life activities
19 implicated here are walking, working, and possibly performing manual tasks. See §
20 	28-1-2(N) (defining "major life activities" under the NMHRA).
20

1 {29} 	In addition to York's testimony, Plaintiff testified that when he requested an
2 accommodation from York, he could still walk, but not well enough to be a server.
3 Plaintiff also testified that he asked his father to fix a pipe inside the restaurant since
4 he told York before he was injured that he would fix it, and York was upset that he
5 had not fixed the pipe. A reasonable inference from that testimony was that
6 Plaintiffs mobility was impaired, and also that he was not capable of fixing the pipe
7 due to his injury, and thus possibly could not perform manual tasks. However,
8. Plaintiffs suggested accommodations of expediting work and prep work indicated
9 that he felt he could work, stand, and walk to some degree. Given that Plaintiff
10 clearly felt he could work a prep shift, which required walking and standing for eight
11 	hours, and communicated the same to York, York's refusal to accommodate Plaintiff
12 with server, expediting, or prep shifts because he did not believe that Plaintiff could
13 	perform that work in his condition is indicative of his belief, even if mistaken, that
14 Plaintiff was substantially limited in one or more of his major life activities.
15 	{30} 	To reiterate, the record indicates that York was mistaken for three reasons.
16 First, Plaintiff told York he could work a prep shift, which would have required
17 walking and standing for eight hours. In the absence of any medical evidence or
18 testimony, which the district court ensured when it barred that evidence in its ruling
19 on Outback's motion in limine, Plaintiffs testimony that he felt he could have
20 worked the prep shift is evidence that York was mistaken.
21

1 {31} 	Second, Plaintiffs physician's notes, which Plaintiff gave to York following
2 his injury, did not reflect that Plaintiff was physically limited other than being unable
3 to work during a ·specified date range. There was a section in each note called
4 "Restrictions" in which the physician could have checked a box next to certain
5 restrictions such as Plaintiffs ability to lift, bend, and twist, and whether Plaintiff
6 should not bear weight on his legs, should avoid standing and walking for more than
7 a certain number of hours, or needed crutches, among other restrictions. None of
8 those boxes was checked. In fact, there were no details on the notes other than that
9 Plaintiff could not work during a specified date range.
10 {32} 	Finally, York testified that he believed "a sprained ankle is a disability."
11 	Again, unc;ler the NMHRA, Plaintiff was "considered to be physically or mentally
12 handicapped if ... [he was] regarded as having a physical or mental handicap[.]"
13 	Section 28-1-2(M). York was Plaintiffs supervisor at Outback, and thus York's
14 perspective 	as 	to 	whether Plaintiff had 	a physical 	or 	mental 	handicap 	that
15 	substantially limited one or more of his major life activities is indicative of whether
16 Outback regarded Plaintiff to be physically handicapped or disabled since York felt
17 that Plaintiff could not perform a major life activity, working, because of his injury.
18 	Because evidence in the record supports a determination that York mistakenly
19 believed that Plaintiffs injury substantially limited his major life activity 	of
20 working, we conclude that Outback regarded Plaintiff to be disabled.
22

1 {33} 	Outback is incorrect that the relevant inquiry here is whether Plaintiff had a
2 reasonably objective, good-faith belief that Outback regarded him to be disabled. On
3 a retaliation claim, for a plaintiff to proceed on the theory that an employer regarded
4 	an employee to be disabled and discriminated against him or her because of it, and
5 then terminated an employee because he or she opposed that discrimination, it is
6 irrelevant what the employee believed the employer thought about his condition. The
7 employee's good-faith belief that his employer has violated the relevant statute, in
8 this case the NMHRA, and whether -the employer regarded that employee to be
9 disabled, are the relevant inquiries. See id. § 28-1-2(M) ("A person is ... considered
10 to be physically . . . handicapped if the person . . . is regarded as having a
11 	physical ... handicap[.]"); Selenke, 248 F.3d at 1264 (stating an employee need not
12 prove he or she "suffers from an actual disability" to prove an ADA retaliation claim,
13 	but the employee does need to show that he or she had "a reasonable, good[-]faith
14 belief that the statute has been violated"). If an employer takes adverse employment
15 	action because it mistakenly believes the employee's impairment is actually more
16 	limiting than it is, or alternatively mistakenly believes the employee is suffering
17 from a substantially limiting impairment when the employee is not impaired at all,
18 that belief and ensuing action based upon it combines to amount to an unlawful
19 discriminatory practice because the employer is taking action based on its mistaken
23

l 	perception that the employee is disabled. See Lusk, 238 F.3d at 1241 (applying the
2 ADA to an employer's mistaken belief concerning impairment).
3 	{34} 	Notwithstanding the foregoing, 	Plaintiff still had to have a good faith,
4 objectively reasonable belief that Outback violated the NMHRA, as opposed to a
5 good faith, objectively reasonable belief that Outback regarded him to be disabled,
6 which is what Outback argues. See Selenke, 248 F.3d at 1264 (stating showing
7 necessary for ADA retaliation claim). Here, the record indicates that Plaintiff had
8 such a belief. Plaintiff reported to Jolly that York tried to convince him not to file a
9 worker's compensation claim, and when that effort failed, York gave him telephone
10 numbers that were purportedly for Outback's worker's compensation insurer, but
11 	were actually for a Wells Fargo bank. Plaintiff also told Jolly about York's pressure
12 on him to find coverage for the shifts of work that he was missing or "man up and
13 	work." Additionally, Plaintiff told Jolly that York told him, "If you want to manage
14 for me, you will show up no matter what."
15 	{35} 	Plaintiff testified that by February 12, 2012, which was approximately six
16 weeks after his injury, his worker's compensation claim had "finally" been approved
17 and his Magnetic Resonance Imaging scan was scheduled for February 15. However,
18 two days later, Jolly called Plaintiff to terminate his employment. According to
19 Plaintiff, Jolly told him that the decision to terminate him was York's, and "each
20 store handles how they-each store treats [w]orkers' [c]ompensation differently. It
24

1 depends on the individual proprietor, and it was his decision alone to terminate me."
2 However, Plaintiff also testified that Jolly told him that York terminated him
3 "because I hadn't worked in [thirty] days, and it's his policy to remove in the [thirty]
4 days." For her part, Jolly testified that Plaintiff told her that he was concerned "that
5 his [w]orker's [c]omp[ensation] injury had been reported on the wrong date, and that
6 he didn't like the tone of some text messages." The record shows that Plaintiff had
7 a good faith, objectively reasonable belief that Outback violated the NMHRA by
8 terminating 	him 	because 	it 	regarded 	him 	as 	having 	a 	physical 	handicap.
9 Additionally, although no New Mexico case has decided whether the determination
10 of an impairment as a serious medical condition is a question of law or fact, the
11 	Tenth Circuit has decided that "[w]hether the plaintiff has an impairment within the
12 meaning of the ADA" and "[w]hether the conduct affected is a major life activity
13 	for 	purposes 	of the Act 	is 	also 	a legal 	question 	for 	the 	court." 	Doebele 	v.
14 Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003); see also Rule 13-
15 	2307G NMRA, comm. cmt. (recognizing the Tenth Circuit's holding in Doebele).
16 We therefore affirm the district court's judgment and denial of Outback's renewed
17 motion for judgment as a matter of law, but because we do so on grounds that the
18 	district court did not rely upon, 2 we affirm the judgment and denial under the right
2Because the district court's reasons for denying Outback's renewed motion
for judgment as a matter of law were flawed, we do not rely upon them, even though
we affirm the district court's denial as right for any reason. By the time it heard
25

1 for any reason doctrine. See Atherton, 2015-NMCA-003, 136 (stating that we may
2 affirm the district court as right for any reason if doing so would not be unfair to the
3 appellant and if it would not require us to look beyond factual allegations considered
4 below).
5 D. 	The District Court's Inconsistent Rulings Do Not Warrant Reversal
6 	Because Outback Either Acquiesced or Waived Objections to the Jury
7 	Instructions and Special Verdict Form
8 {36} 	On appeal, Outback argues that the district court's inconsistent rulings during
9 and following trial, especially its mistaken belief that the jury found that Plaintiff
10 had a serious physical injury, prejudiced it such that we must order a new trial.
11 	Specifically, Outback contends that the district court's pretrial ruling on Outback's
12 motion in limine concluding that Plaintiff did not have a physical handicap or serious
13 	medical condition under the NMHRA and the district court's directed verdict during
Outback's renewed motion for judgment as a matter of law, it had changed its
position and concluded that the evidence showed that Plaintiff had a serious medical
condition because of its inaccurate memory of evidence that Plaintiff notified
Outback 	of 	his 	surgery 	pre-termination 	(it 	was 	actually 	post-termination).
Additionally, the district court erroneously concluded that the jury found that
Plaintiff had a serious medical condition simply because Plaintiff argued his
NMHRA retaliation claim on the basis of his worker's compensation claim. The jury
made no such finding because the special verdict form did not allow the jury to
identify the unlawful discriminatory practice that Plaintiff opposed and for which
Outback retaliated against him. The mere existence of a worker's compensation
claim is not probative of the severity of the worker's injury. See NMSA 1978, § 52-
1-9 (1973) (stating worker has right to compensation provided for in Workers'
Compensation Act for "any personal injury accidentally sustained").
26

1 trial dismissing Plaintiffs NMHRA claims that were premised upon discrimination
2 and failure to accommodate were inconsistent with the district court's denial of
3 Outback's renewed motion for judgment as a matter of law in part because Plaintiff
4 had a serious injury and was retaliated against because of it. Plaintiff answers that
5 Outback's new trial request was not preserved, 3 that Outback invited any error
6 because ofits motion in liinine, and that the district court's reliance on its conclusion
7 that Plaintiff had a serious medical condition in denying Outback's renewed motion
3 0utback argued during the hearing on its renewed motion for judgment as a
matter of law that filing a Workers' Compensation claim "does not always involve
a disability[,]" which prompted the district court's conclusion "that the ~vidence is
that this did turn out to be a serious medical condition." The district court then asked,
even though it did not allow Plaintiffs retaliation claim to go forward on the basis
of discrimination, whether there was "substantial evidence upon which the jury can
rely on to say that he was discriminated [against because he filed] a Workers'
Comp[ensation] claim that was related to a serious medical condition?" We agree
with Outback's argument on appeal that its counsel during the hearing attempted to
inform the district court that it was making inconsistent rulings, since Outback's
counsel argued during the hearing that "the reason that you dismissed the failure to
accommodate claim itself was you found at the time that all this was going on, that
the time that he was communicating to Outback, that the injury had not yet
progressed to the point where it was, in fact, a disability." Thus, Outback preserved
this issue for review on appeal. See Lasen, Inc. v. Tadjikov, _-NMCA-_, _
P.3d _, (No. A-1-CA-34744 Dec. 21, 2018) ("The primary purposes for the
preservation rule are: (1) to specifically alert the district court to a claim of error so
that any mistake can be corrected at that time, (2) to allow the opposing party a fair
opportunity to respond to the claim of error and to show why the district court should
rule against that claim, and (3) to create a record sufficient to allow this Court to
make an informed decision regarding the contested issue.") (alteration, internal
quotation marks, and citation omitted). 	·
27

1 for judgment as a matter of law does not warrant reversal because whether Plaintiff
2 had a serious medical condition was not an element of his NMHRA retaliation claim.
3 	{37} 	While 	we 	agree 	to 	some 	degree 	that the 	district 	court's rulings 	were
4 inconsistent, Outback is not entitled to a new trial because Outback either acquiesced
5 to or waived its objection to the jury instructions or special verdict form, and indeed
6 does not raise claims of error with respect to them on appeal. We focus our analysis
7 on Outback's waiver of objections and acquiescence to the general-in-nature jury
8 instructions and special verdict form because they comprise the law of the case. See
9 Estate of Saenz, 	2018-NMSC-032, , 	40 ("[U]nchallenged jury instructions are
10 therefore the law of the case."); Muncey, 2012-NMCA-120,, 21 (stating that "[j]ury
11 	instructions become the law of the case" for the purpose of evaluating sufficiency of
12 the evidence); Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-
13 	095,, 43, 146 N.M. 853, 215 P.3d 791 (same).
14 	{38} 	With respect to Plaintiffs NMHRA retaliation claim, the jury was instructed
15 	that "[a]n employer violates the [NMHRA] if it ... engages in any form of threat,
16 retaliation, or discrimination against any person who has opposed an unlawful
17 discriminatory practice." 	The 	district 	court 	stated 	its 	intention to 	not permit
18 	Plaintiffs NMHRA claim on the basis of discrimination based on physical handicap,
19 and yet a general statement that discrimination is a basis upon which Outback may
20 have violated the NMHRA remained in the jury instruction. Outback argued that it
28

1 was problematic that the jury was not "given a standard for how they decide whether
2 the retaliation has occurred" in the jury instruction and stated that the jury should be
3 "told what the protected oppo_sition activity is." The district court then suggested to
4 Outback that it submit a jury instruction defining the protected activity. There is no
5 indication in the record that Outback actually submitted such an instruction, and such
6 an instruction was ultimately not given to the jury.
7 	{39} 	The special verdict form asked the jury only whether Outback "violate[ d] the
8 	[NMHRA,]" but did not ask the jury to specify how Outback violated the NMHRA.
9 Outback twice objected to the special verdict form, but its first objection is not
10 relevant to this appeal. 4 Outback also argued that "if the jury makes a finding that
11 	Outback violated the [NMHRA], the appellate court will not know whether it was
12 based on protected activity involving the worker['s] 	comp[ensation] 	claim, 	or
13 	protected activity involving things that fall within the four comers of the act. It might
14 be worth asking two subsets or sub questions there." However, Outback withdrew
15 	its objection to the special verdict form, claiming later at the hearing on the renewed
4
0utback argued in its first objection to the special verdict form that "the jury
should first have to decide the statutory [NMHRA retaliation] claim before moving
to the retaliatory discharge claim." Ultimately the parties agreed that the jury would
be asked to decide liability with respect to both retaliatory discharge and the
NMHRA retaliation claim, and that there would be another instruction in the special
verdict form telling the jury that if it "found in favor of Plaintiff . . . regarding
statutory [NMHRA] retaliation, then you may answer . . . regarding the award of
punitive damages." 	,
29

1 motion for judgment as a matter of law that it withdrew its objection because it
2 believed there was just one basis for the NMHRA retaliation claim, which was
3 Plaintiffs worker's compensation claim.
4 {40} 	Outback's failure to submit an alternative NMHRA retaliation jury instruction
5 and Outback's decision to allow the jury to be instructed with the general-in-nature
6 jury 	instruction 	constitutes 	waiver 	of 	any 	objection 	to 	it, 	or 	alternatively
7 acquiescence to the same. See Pittard v. Four Seasons Motor Inn, 	Inc., 	1984-
8 NMCA-044, 124, 101 N.M. 723, 688 P.2d 333 (concluding plaintiffs waived their
9 right to challenge a jury instruction on appeal when their submitted jury instruction
10 did not accurately reflect the law). Cf Rule 1-051(B) NMRA ("The court shall
11 	instruct the jury regarding the law applicable to the facts in the cause unless such
12 	instructions be waived by the parties."); Rule 1-051 (I) ("For the preservation of any
13 	error in the charge, objection must be made to any instruction given ... or, in case
14 	of a failure to instruct on any point of law, a correct instruction must be tendered,
15 	before retirement of the jury."); Estate of Saenz, 2018-NMSC-032, 1 23 ("As a
16 	general rule, the right to object to an improper verdict is waived when not made at
17 the time of the return of the verdict and cannot be reclaimed and revived by resorting
18 to a motion for a new trial or on appeal." (internal quotation marks and citation
19 omitted)). Similarly, Outback's withdrawal of its objection to the special verdict
20 form indicated its agreement. Outback cannot now challenge the jury's verdict that
30

1 it violated the NMHRA when it failed to object to overly general or flawed jury
2 instructions. Regardless of the district court's inconsistent rulings about whether
3 Plaintiff had a serious medical condition, Outback was aware that the jury received
4 a flawed NMHRA retaliation instruction, and Outback acquiesced to a special
5 verdict form that did not ask the jury to specify how Outback violated the NMHRA.
6 Further, although the district court erroneously concluded that the jury found that
7 Plaintiff had a serious medical condition, in light of our conclusion that, as a matter
8 of law, Outback regarded Plaintiff to be disabled and that Plaintiff had a good faith,
9 reasonable belief that Outback violated the NMHRA, the district court's inconsistent
10 ruling on that topic did not impact the outcome·.
11
12
13
14
15
16
17
18
We have previously warned:
[W]e are not prepared to second-guess or override the jury. It is up to
the parties to carefully try their cases, to assure that the jury is clearly
and 	carefully instructed, 	to 	make 	critical 	objections 	in regard to
instructions, and to carry the burden of persuasion through convincing
evidence and argument. It is not the duty of an appellate court to sift
through the testimony and other evidence and attempt to decide the case
based on instructions with which the parties found no material fault.
19 Muncey, 2012-NMCA-120, ,-r 48. That warning remains true today. We decline to
20 reverse the jury verdict and order a new trial.
31

1 CONCLUSION
2 	{41} 	For these reasons, we affirm the jury verdict in Plaintiffs favor with respect
3 to his NMHRA retaliation claim and the district court's denial of Outback's renewed
4 motion for judgment as a matter of law.
5 	{42}
6
7
IT IS SO ORDERED.
8 WE CONCUR:
9 	,¢!,_.~
10 KRfsriNA BOGARDUS, Judge
11~~
Ill •. ·~~·-· 	-
_j,. 	~VVL/,,
J. MILES HANISEE, Judge
12 JAMES J. WECHSLER, Judge Pro Tempore
32