July 21, 2015 – Cynthia R. Herald, M.D. v. Board of Regents of the University of New Mexico, a body corporate of the State of New Mexico, for itself and its public operations including Board of Directors of the University of New Mexico Health Sciences Center, University of New Mexico Health Sciences Center and its components the University of New Mexico Hospital and University of New Mexico School of Medicine, No. 33,187

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 21, 2015

NO. 33,187

CYNTHIA R. HERALD, MLD.,
Plaintiff-A ppellant/Cross-A ppellee,

V.

BOARD OF REGENTS OF THE UNIVERSITY

OF NEW MEXICO, a body corporate of the

STATE OF NEW MEXICO, for itself and its

public operations including BOARD OF DIRECTORS
OF THE UNIVERSITY OF NEW MEXICO HEALTH
SCIENCES CENTER, UNIVERSITY OF NEW MEXICO
HEALTH SCIENCES CENTER and its components the
UNIVERSITY OF NEW MEXICO HOSPITAL and
UNIVERSITY OF NEW MEXICO SCHOOL OF
MEDICINE,

Defendant- A ppellee/Cross-A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

Curtis & Lucero
Lisa K. Curtis
Amalia S. Lucero
Albuquerque, NM

Law Offices of E. Justin Pennington
E. Justin Pennington
Albuquerque, NM
L. Helen Bennett
Albuquerque, NM
for Appellant
Wiggins, Williams & Wiggins, P.C.
Patricia G. Williams
Albuquerque, NM
for Appellee

OPINION
SUTIN, Judge.
{1} 	Plaintiff Cynthia Herald, M.D., sued the Board of Regents of the University of
New Mexico (Defendant) after she was discharged from the residency program at the
University of New Mexico School of Medicine. She claimed that her termination was
driven by discrimination and retaliation in violation of the New Mexico Human Rights
Act (the HRA), NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2007), and
the Whistleblower Protection Act (the WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010).
She also stated claims under the New Mexico Tort Claims Act (the TCA), NMSA
1978, §§ 41-4-1 to -30 (1976, as amended through 2015), and for breach of contract.
Underlying these claims was Plaintiff’s theory that Defendant’s alleged discriminatory
and retaliatory actions toward her, including her termination, stemmed from and were
related to Plaintiff’s allegation that she had been raped by a fellow participant in the
residency program.
{2} 	The district court dismissed Plaintiff’s TCA and WPA claims, and the court
granted summary judgment in favor of Defendant as to Plaintiff’s breach of contract
claim. The district court construed Plaintiff’s complaint as stating three claims under
the HRA, namely, disparate treatment, sex discrimination, and retaliation. As to
disparate treatment, the district court granted summary judgment in favor of

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Defendant. Plaintiff’s claims of sex discrimination and retaliation pursuant to the
HRA were tried before a jury; the jury found in favor of Defendant on both claims.
{3} 	On appeal, Plaintiff challenges the district court’s WPA and TCA dismissal
orders and its order granting summary judgment as to her breach of contract claim.
She also argues that the court erred in its instructions to the jury on her HRA claim.
We reverse the district court’s dismissal of Plaintiff’s WPA claims on statutory
construction grounds. As to Plaintiff’s remaining arguments, we affirm the district
court.
{4} 	Defendant cross appeals, claiming that the district court erred in denying its
requested costs and attorney fees. We reverse the district court’s denial of costs
associated with Defendant’s electronic filing fees because we hold that it was
premised on a misapplication of the relevant law. We affirm on the remaining issues.
BACKGROUND
{5} 	After graduating from medical school, Plaintiff enrolled in the University of
New Mexico School of Medicine (the School) as a post-doctoral fellow and resident
physician in anesthesiology (the residency program) in June 2008. As a participant in
the residency program, Plaintiff was both an employee and a student at the University
of New Mexico (UNM), with responsibilities as a “house staff physician for patients”
at UNM Hospital, as well as having a responsibility to participate in educational

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activities. Plaintiff’s involvement with the residency program was formalized in a
“Graduate Medical Education Agreement” between Defendant and Plaintiff; this
agreement served as Plaintiff’s employment contract.
{6} 	In June 2009, Plaintiff visited the home of a man who was “senior to Plaintiff”
in the residency program (the senior resident), and who, by virtue of his greater
experience, education, and training, supervised Plaintiff’s work. Plaintiff claimed that
while she was in his home, the senior resident raped her. In September 2009, Plaintiff
reported the alleged rape to the Associate Dean for Graduate Medical Education, Dr.
David Sklar; Residency Program Director, Dr. James Harding; and Chairman of the
Department 	of 	Anesthesiology, 	Dr. 	John 	Wills 	(collectively, 	the 	residency
administrators). Plaintiff never reported the alleged rape to a law enforcement agency,
and the senior resident was never charged with or convicted of any crime as a result
of Plaintiff’s allegation that he raped her.
{7} 	In June 2010, Plaintiff was terminated from the residency program. A “notice
of final action” letter to Plaintiff, signed by Doctors Wills and Sklar, detailed the
School’s decision to terminate Plaintiff from the residency program on “administrative
misconduct” grounds. The letter enumerated several findings that led to the School’s
conclusion that Plaintiff had committed various forms of administrative misconduct.
Those findings included that Plaintiff was impaired and incompetent while on duty at

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UNM Hospital as a result of ingesting Schedule IV narcotics; that an investigation
revealed that Plaintiff’s hospital-issued narcotic pack was missing Schedule II and IV
controlled substances and that Plaintiff had altered a document pertaining to the
content of the narcotic pack so as to hide the discrepancy; and that, in contravention
of the School’s policy, Plaintiff had repeatedly filled prescriptions issued to her by
other participants in the residency program, many of which may have been falsified
by Plaintiff in an unlawful use of the other residents’ institutional DEA numbers. As
well, the letter stated that Plaintiff had refused to attend meetings, refused to discuss
her impairment and related issues, deliberately lied to the School so as to obstruct the
investigation, and had attempted to convince an attending physician to take the blame
for the discrepancy in her narcotic pack.
{8} 	Following her termination from the residency program, Plaintiff filed a
complaint with the New Mexico Department of Workforce Solutions, Human Rights
Bureau alleging that she had suffered sex discrimination and retaliation culminating
in her termination from the residency program. She received an order of non-
determination from the Labor Relations Division of the Human Rights Bureau
allowing her to pursue her HRA claim in district court. See § 28-1-10(D) (stating that
“[a] person who has filed a complaint with the human rights division may request and
shall receive an order of non[-]determination from the director”); § 28-1-13(A)

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(stating that the order of non-determination may be appealed to the district court
where the complainant may obtain a trial de novo).
{9} 	Plaintiff filed a “notice of appeal [from the order of non-determination] and
complaint for negligent supervision [under the TCA], wrongful discharge[,] and
violation of civil rights” against Defendant in district court. In her complaint, Plaintiff
alleged the following. After she reported to the residency administrators that the senior
resident had raped her, they discouraged her from reporting the alleged rape to law
enforcement so as to avoid damaging the reputation of the School and UNM Hospital.
Defendant failed to investigate the rape allegation and failed to “provide appropriate
assistance” to her. And, although her “documented performance continued to be
satisfactory through December 2009,” after she reported the alleged rape, she was
subjected to “heightened scrutiny and increased criticisms” by Defendant’s agents.
{10} 	Plaintiff further alleged that, on an unspecified date, she requested but was
denied a medical leave of absence so that she could seek and participate in medical
treatment for the alleged rape. She also alleged that her physical, psychological, and
emotional condition deteriorated after she reported the alleged rape to the residency
administrators and that on January 14, 2010, Dr. Harding requested that she resign
from the residency program based on “performance deficiencies and unspecified
‘global problems.’ ” She then repeated her request for a medical leave of absence, and

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the request was granted. When she returned to work, she was advised that, owing to
deficient clinical performance, she would be subject to a three-month period of formal
remediation during which her clinical performance would be assessed regularly.
{11} 	Plaintiff alleged that, after she returned to work, she was not periodically
assessed, but to the extent that she was assessed, her performance was deemed
satisfactory, and without a final assessment, the remediation period concluded in April
2010. Finally, Plaintiff’s complaint stated facts that have already been addressed in
this Opinion, pertaining to her alleged impairment on duty on May 4, 2010, and her
termination from the residency program.
{12} 	Based on the foregoing factual allegations, Plaintiff stated four overarching
claims: negligent supervision under the TCA, wrongful discharge for a breach of an
employment contract, wrongful discharge by retaliation contrary to the WPA, and
retaliation and sex discrimination contrary to the HRA.
{13} 	Before answering Plaintiff’s complaint, Defendant filed two motions to dismiss,
one seeking dismissal of Plaintiff’s WPA claims and another seeking dismissal of
Plaintiff’s negligent supervision and breach of contract claims. For reasons that are
discussed later in this Opinion, the district court granted Defendant’s motion to
dismiss Plaintiff’s WPA claims and TCA claims, and the court denied Defendant’s
motion to dismiss Plaintiff’s breach of contract claim.

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{14} 	Notwithstanding the court’s orders of dismissal, Plaintiff filed a first amended
notice of appeal and first amended complaint for failure to properly operate a hospital,
wrongful discharge, and violation of civil rights (the amended complaint) that re-
stated all of the claims in the original complaint. According to Plaintiff, the
substantive differences between the original complaint and the amended complaint
were that the amended complaint made it clear that the WPA claims were “in the
alternative and/or in addition to the relief and remedies of the other causes of action”;
and that, unlike the original complaint, the amended complaint specified that
Plaintiff’s tort claim was based on an alleged “failure to properly operate a hospital[.]”
With the exception of the previously dismissed WPA and TCA claims, which the
court ruled remained dismissed, the district court permitted Plaintiff to proceed on the
amended complaint.
{15} 	After Defendant answered Plaintiff’s amended complaint, Defendant filed two
motions for summary judgment, one pertaining to Plaintiff’s breach of contract claim
and another pertaining to her HRA claims. Plaintiff filed responses in opposition to
both motions for summary judgment. The details of the parties’ arguments will be
discussed as necessary in the body of this Opinion.
{16} 	Based on the parties’ written arguments and the arguments made at a hearing
on the motions for summary judgment, the district court granted summary judgment

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in favor of Defendant as to Plaintiff’s breach of contract claim. As to Plaintiff’s HRA
claims, the district court ruled that, to the extent that Plaintiff raised a claim of sex
discrimination on the theory of disparate treatment, summary judgment should be
granted in Defendant’s favor. To the extent that Plaintiff’s HRA claims for sex
discrimination were based on a theory of hostile work environment and of retaliation
based on the theory of opposition to unlawful discrimination, the court denied
summary judgment and allowed the claims to be tried before a jury.
{17} 	A jury determined that Plaintiff failed to prove that Defendant unlawfully
retaliated or unlawfully discriminated against her. The district court entered a
judgment on the verdict ordering that “Plaintiff take nothing[.]” Thereafter, Defendant
sought costs pursuant to Rule 1-054(D) NMRA and, on the ground that it had made
two offers of settlement, both of which had been rejected by Plaintiff, it sought costs
pursuant to Rule 1-068 NMRA. Defendant also sought attorney fees. The district court
awarded Defendant its partial costs but denied its request for attorney fees.
{18} 	On appeal, Plaintiff argues that the district court dismissed her WPA claims
based on its erroneous determination that the WPA and the HRA are irreconcilable
and on its related conclusion that Plaintiff could therefore only proceed under the
HRA. Plaintiff also argues that erroneous legal determinations led the district court
to grant summary judgment in favor of Defendant on Plaintiff’s breach of contract

9
claim. Additionally, Plaintiff argues that the district court’s decision to dismiss her tort
claims was based on its misconstruction of the TCA. And finally, Plaintiff argues that
because the jury instructions did not accurately reflect the relevant law, the
instructions confused and misled the jury. On these bases, Plaintiff seeks reversal. In
a cross-appeal, Defendant argues that the district court erred in not awarding attorney
fees and in not awarding its full costs or, alternatively, double costs.
{19} 	We conclude that the district court erred in dismissing Plaintiff’s WPA claims
on the ground that the WPA and the HRA are irreconcilably conflicting. Accordingly,
we reverse the court’s dismissal of Plaintiff’s WPA claims and remand for further
proceedings as to that claim. Plaintiff’s remaining arguments provide no grounds for
reversal.
{20} 	We conclude that the district court’s denial of Defendant’s electronic filing fees
on the ground that they are not recoverable under the applicable rule was based on a
misinterpretation of the law and remand for further consideration of that issue.
Defendant’s remaining arguments pertaining to costs and attorney fees do not
demonstrate grounds for reversal.
DISCUSSION
A. 	Plaintiff’s Arguments

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{21} 	Plaintiff’s arguments present issues of law that are reviewed de novo. See Baker
v. 	Hedstrom, 	2013-NMSC-043, 	¶ 	10, 	309 	P.3d 	1047 	(stating 	that 	statutory
construction is a question of law that an appellate court reviews de novo); Benavidez
v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (stating that
the appellate court reviews “jury instructions de novo to determine whether they
correctly state the law” (internal quotation marks and citation omitted)); Lopez v. Las
Cruces Police Dep’t, 2006-NMCA-074, ¶ 10, 139 N.M. 730, 137 P.3d 670 (stating
that orders pertaining to summary judgment and motions to dismiss are reviewed de
novo).
1. 	Plaintiff’s Argument That the District Court Erred in Dismissing Her
WPA Claims
{22} 	Plaintiff’s respective HRA and WPA claims arose out of her claim that because
she reported the alleged rape to the residency administrators, Defendant took various
retaliatory actions against her that ultimately culminated in terminating her from the
residency program. In its motion to dismiss Plaintiff’s WPA claims, Defendant argued
that the HRA provides the exclusive remedy for Plaintiff’s retaliation claim. The
district court agreed and dismissed Plaintiff’s WPA claims. We begin by reviewing
the relevant provisions of the HRA and the WPA.
i. 	The HRA

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{23} 	The HRA provides that it is an unlawful discriminatory practice for an
employer to discharge or discriminate based on an employee’s sex when that
employee is otherwise qualified, in matters of terms, conditions, or privileges of
employment. Section 28-1-7(A). It is also an unlawful discriminatory practice for any
employer to “aid, abet, incite, compel[,] or coerce the doing of any unlawful
discriminatory practice or to attempt to do so” or to “engage in any form of . . .
reprisal or discrimination against any person who has opposed any unlawful
discriminatory practice[.]” Section 28-1-7(I)(1), (2). A person claiming to be
aggrieved by an unlawful discriminatory practice may file a written complaint with
the Human Rights Division, thus prompting a series of administrative processes, or
she may request an order of non-determination. See generally § 28-1-10. An aggrieved
employee may obtain a trial de novo in the district court either from an order of the
commission 	following 	the 	administrative 	process 	or 	from 	an 	order 	of 	non-
determination. Section 28-1-10(D); § 28-1-13(A).
ii. 	The WPA
{24} 	The WPA applies exclusively to public employers and public employees.
Section 10-16C-3. Among other things, the WPA prohibits a public employer from
taking any retaliatory action against a public employee because the public employee:
“communicates to the public employer . . . information about an action or a failure to

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act that the public employee believes in good faith constitutes an unlawful or improper
act” or “objects to or refuses to participate in an activity, policy[,] or practice that
constitutes an unlawful or improper act.” Section 10-16C-3(A), (C). A “retaliatory
action” is defined in the WPA as “any discriminatory or adverse employment action
against a public employee in the terms and conditions of public employment[.]”
Section 10-16C-2(D). The WPA enumerates the remedies that are available to a public
employee who prevails in a lawsuit and provides that those remedies “are not
exclusive and shall be in addition to any other remedies provided for in any other
law[.]” Section 10-16C-4(A), (C).
iii. 	Plaintiff Was Entitled to State Claims Under the HRA and the WPA
{25} 	Statutory interpretation is driven primarily by the language in a statute, and the
language of remedial statutes, including the HRA and the WPA, must be liberally
construed. See Whitely v. State Pers. Bd., 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850
P.2d 1011 (stating that the language used by Legislature in a statute is the primary
indicator of legislative intent); Las Campanas Ltd. P’ship v. Pribble, 1997-NMCA-
055, ¶ 15, 123 N.M. 520, 943 P.2d 554 (stating that remedial statutes must be liberally
construed). With these principles in mind, we observe that the WPA expressly
provides that its remedies “shall be in addition to any other remedies provided for in
any other law[.]” Section 10-16C-4(C). Further, we observe that, although the HRA

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is silent on the issue of exclusivity, our Supreme Court has interpreted this silence to
mean that the Legislature did not intend the HRA’s remedies to be exclusive. See
Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040, ¶ 8, 117 N.M. 441, 872 P.2d 859
(stating that the language of the HRA “is permissive [insofar as it] contains no
declaration that the remedies [that] it provides are exclusive” and holding, therefore,
that the Legislature “did not intend the [HRA’s] remedies to be exclusive”).
{26} 	In light of our Supreme Court’s discussion of the HRA in Gandy, and based
upon the language in Section 10-16C-4(C) of the WPA, we conclude that the
Legislature did not intend the HRA to provide Plaintiff’s exclusive remedy in this
case. Our conclusion, supported by the Legislature’s language, also comports with a
liberal construction of the two statutes. The district court’s reasons for reaching the
opposite conclusion are not persuasive.
{27} 	“Statutes are not to be read in a manner that would make portions of them
superfluous.” State Dep’t of Labor v. Echostar Commc’ns Corp., 2006-NMCA-047,
¶ 6, 139 N.M. 493, 134 P.3d 780. In construing legislative intent to reach its
conclusion that the HRA provided Plaintiff’s exclusive remedy, the district court
omitted any discussion of the express provision in Section 10-16C-4(C) that the
remedies in the WPA “shall be in addition to any other remedies provided for in any
other law[.]” Having omitted consideration of that language, which ostensibly allows

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a plaintiff to state a WPA claim alongside a claim under any other law, including the
HRA, the district court concluded that there was a conflict between the WPA and the
HRA that rendered them irreconcilable.
{28} 	In the context of statutory construction, a determination that two legislatively
enacted provisions irreconcilably conflict is not favored. See Luboyeski v. Hill, 1994-
NMSC-032, ¶ 10, 117 N.M. 380, 872 P.2d 353 (“Whenever possible, [the appellate
courts] must read different legislative enactments as harmonious instead of as
contradicting one another.”); see also NMSA 1978, § 12-2A-10(A) (1997) (stating
that “[i]f statutes appear to conflict, they must be construed, if possible, to give effect
to each”). This is because there is a presumption that the Legislature is aware of
existing laws and would not intend to enact new legislation that irreconcilably
conflicts with existing laws. See Luboyeski, 1994-NMSC-032, ¶ 10 (stating that the
Legislature is presumed not to have intended to enact a law that is inconsistent with
existing laws). Thus, the district court’s conclusion that the HRA and the WPA are
irreconcilably 	conflicting 	is 	out 	of 	step 	with 	general 	principles 	of 	statutory
construction, particularly in light of the language in Section 10-16C-4(C).
{29} 	In support of its conclusion that there was an irreconcilable conflict between the
HRA and the WPA, the district court stated that: (1) unlike the WPA, the HRA
“provides a comprehensive administrative process . . . which must be exhausted as a

15
prerequisite to suit”; (2) the two acts have different statutes of limitations; and (3) the
two acts differ in terms of the recovery available to a successful claimant. Defendant
urges this Court to rely on these distinctions to affirm the district court’s decision. We
decline to do so.
{30} 	We begin with the different statutes of limitations and the different recoveries
available to a successful claimant. Here, the district court did not explain why these
differences necessarily placed the HRA and the WPA in irreconcilable conflict. And,
on appeal, Defendant has failed to as well. We see no reason to conclude that these
distinctions create an irreconcilable conflict between the two acts.
{31} 	The HRA and the WPA may be read harmoniously, giving effect to each,
notwithstanding the different statutes of limitations and the different remedies
available to a successful claimant. We assume that any plaintiff who wished to file
claims pursuant to the HRA and the WPA would understand the need to do so within
the earlier statute of limitations of the HRA to avoid dismissal of the HRA claim on
timeliness grounds. See § 28-1-10(A) (providing a three-hundred-day statute of
limitations for filing claims under the HRA); § 10-16C-6 (providing a two-year statute
of limitations for filing claims under the WPA). In the present case, Plaintiff’s HRA
and WPA claims were timely brought within the same complaint.

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{32} 	Additionally, that the HRA and the WPA provide different remedies for a
successful claimant does not create an irreconcilable conflict. See § 28-1-13(D)
(providing that, pursuant to the district court’s discretion, a successful claimant under
the HRA may receive “actual damages and reasonable attorney fees”); § 10-16C-4(A)
(stating that a public employer that violates the WPA “shall be liable to the public
employee for actual damages, reinstatement with the same seniority status that the
employee would have had but for the violation, two times the amount of back pay
with interest on the back pay and compensation for any special damage sustained as
a result of the violation . . . . [and the] employer shall be required to pay the litigation
costs and reasonable attorney fees of the employee”). To the extent that a plaintiff is
successful under both theories and to the extent that the remedies overlap, it is
incumbent on the district court to prevent impermissible double recovery. Hood v.
Fulkerson, 1985-NMSC-048, ¶ 12, 102 N.M. 677, 699 P.2d 608 (stating that
“[d]uplication of damages or double recovery for injuries received is not permissible”
and “[w]here there are different theories of recovery and liability is found on each, but
the relief requested was the same . . ., the injured party is entitled to [recover a
particular type of damages] award [only once]”); see Gandy, 1994-NMSC-040, ¶ 12
(“We are confident that an appropriate exercise of discretion by the district courts . . .
will prevent double recovery[.]”).

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{33} 	In 	regard 	to 	its 	conclusion 	that 	the 	HRA 	“provides 	a 	comprehensive
administrative process . . . which must be exhausted as a prerequisite to suit,” the
district court reasoned that allowing a public employee to frame retaliation-based
disputes as WPA claims instead of HRA claims would frustrate the Legislature’s
intent, reflected in the HRA, to require aggrieved employees to pursue administrative
remedies. But here, Plaintiff satisfied the grievance procedure of the HRA by
requesting and receiving an order of non-determination and then appealing that order
in the district court. See Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 16, 127
N.M. 282, 980 P.2d 65 (explaining that the process of requesting and receiving an
order of non-determination signals that the claimant has complied with the HRA
grievance procedures and may proceed to court). The order of non-determination
allowed Plaintiff to bring her HRA and non-HRA claims, including her WPA claim,
before the district court in a single lawsuit.
{34} 	That the Legislature provided a procedure in the HRA by which a claimant may
proceed to court on her claim after requesting and receiving an order of non-
determination precludes the conclusion that the Legislature intended to require a
claimant, in every instance, to proceed through a comprehensive administrative
process before the Human Rights Commission before bringing her claim to court. See,
e.g., § 28-1-10(B), (C), (F) (describing an administrative process that includes, in part,

18
an investigation by the director of the Human Rights Division, potentially followed
by an attempt of persuasion or conciliation, possibly followed by a hearing before the
Human Rights Commission). Rather, as demonstrated in this case, a claimant may
essentially circumvent the more extensive administrative processes contemplated by
the HRA by requesting and receiving, without delay, an order of non-determination
that may then be appealed in a trial de novo in the district court. See § 28-1-10(D) (“A
person who has filed a complaint with the [H]uman [R]ights [D]ivision may request
and shall receive an order of non[-]determination from the director without delay[.]”);
§ 28-1-13(A) (stating that the order of non-determination may then be appealed to the
district court where the complainant may obtain a trial de novo).
{35} 	In sum, we reverse the district court’s order dismissing Plaintiff’s WPA claims
on the ground that the HRA and WPA are in irreconcilable conflict and that, therefore,
the HRA is the exclusive remedy for Plaintiff’s retaliation claim.
iv. 	Defendant’s Arguments in Opposition to Remanding Plaintiff’s WPA
Claims for Trial
{36} 	Defendant argues that even if this Court reverses the dismissal of Plaintiff’s
WPA claims, Plaintiff is not entitled to a trial on that issue. According to Defendant,
when the jury found that Plaintiff did not prove Defendant unlawfully retaliated
against her under the HRA, it necessarily resolved her claim for retaliation under the
WPA as well. We disagree.

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{37} 	Plaintiff’s claims under the HRA and under the WPA were premised on distinct
theories of what caused Defendant’s alleged retaliation against her. In regard to the
HRA claims, the jury was instructed, in relevant part, that to prove retaliation, Plaintiff
was required to show that she suffered an adverse employment action because she
opposed an “unlawful discriminatory practice.” The phrase “unlawful discriminatory
practice” was defined for the jury as follows: (1) “to create a hostile work
environment, discharge an employee[,] or to otherwise discriminate on the basis of
sex”; 	or 	(2) 	“to 	discriminate 	against 	any 	person 	who 	reports 	an 	unlawful
discriminatory practice.”
{38} 	Thus, as to Plaintiff’s HRA claims, the jury was instructed that an employer
engages in an unlawful retaliation if the employee claiming retaliation (1) opposed the
creation of a hostile work environment or the discharge of an employee or other
discrimination on the basis of sex; or (2) reported the creation of a hostile work
environment, the discharge of an employee, or other discrimination on the basis of
sex. Plaintiff argues that the jury’s determination that Plaintiff did not suffer
retaliation on any of the foregoing bases did not answer the question that was raised
by her WPA claims, that is, whether Defendant retaliated against her based on her
report of the alleged rape to the residency administrators.

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{39} 	The issue whether Defendant’s alleged retaliatory behavior was triggered by
Plaintiff’s report of the alleged rape alone is distinct from the issue whether
Defendant’s alleged retaliatory behavior was triggered by Plaintiff’s opposition to or
report of an “unlawful discriminatory practice” as that phrase was defined for the jury.
Accordingly, we hold that the jury’s determination of no retaliation under the HRA
did not preclude a determination that Defendant retaliated against Plaintiff in violation
of the WPA, and we remand this matter to the district court for further proceedings
related to Plaintiff’s WPA claims.
{40} 	Recognizing that we might hold that the WPA claims were viable, Defendant
argues that we should affirm the district court’s dismissal of Plaintiff’s WPA claims
on the basis that the WPA is unconstitutional. Defendant argues that the WPA is void
for vagueness because it “sets no discernable standard for compliance” and fails to
define crucial terms such as “information” and “about.” The district court, having
dismissed Plaintiff’s WPA claims on another ground, expressly declined to consider
the issue whether the WPA is unconstitutional. Accordingly, this issue is not properly
before this Court and will not be considered. See Lewis v. City of Santa Fe, 2005-
NMCA-032, ¶ 19, 137 N.M. 152, 108 P.3d 558 (declining to consider an issue upon
which the district court had not passed).
2. 	Plaintiff’s Breach of Contract Arguments

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{41} 	In the amended complaint, Plaintiff stated a claim for wrongful discharge
premised on the theory that, by terminating her from the residency program without
just cause, Defendant had breached the Graduate Medical Education Agreement (the
employment contract). Defendant filed a motion for summary judgment on the ground
that Plaintiff’s contract claim was precluded as a matter of law, which the district
court granted. On appeal, Plaintiff argues that disputed issues of fact existed that
rendered summary judgment on this issue improper.
{42} 	In summary judgment proceedings, the moving party has the initial burden of
making a prima facie showing that it is entitled to summary judgment. Romero v.
Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. The moving
party may meet this burden by showing “such evidence as is sufficient in law to raise
a presumption of fact or establish the fact in question[.]” Id. (internal quotation marks
and citation omitted). “Once this prima facie showing has been made, the burden
shifts to the non-movant to demonstrate the existence of specific evidentiary facts
[that] would require trial on the merits.” Id. (internal quotation marks and citation
omitted). In order to meet its burden, the non-movant must provide the court with
evidence that justifies a trial on the issues; merely arguing that such evidence exists
is insufficient. Id.

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{43} 	Defendant set forth the following undisputed facts in support of its motion:
(1) “[t]he terms of Plaintiff’s employment contract, including applicable policies and
procedures, required her to adjudicate her contract dispute through a formal three-step
grievance [procedure]”; (2) “[w]hile Plaintiff initiated that process, she did not
complete the third step—final and binding arbitration”; and (3) “Plaintiff, having
failed to comply with the exclusive dispute resolution provisions of her own contract,
including applicable policies and procedures, is precluded as a matter of law from
asserting 	claims 	against 	[Defendant] 	for 	breach 	of 	contract[.]” 	Attached 	to
Defendant’s motion were several exhibits that supported the foregoing statements,
including the employment contract and copies of “grievance forms” indicating that
Plaintiff had completed only two steps of the three-step grievance procedure.
{44} 	The district court relied on Defendant’s undisputed material facts as the basis
for its summary judgment order. Implicit in the court’s summary judgment was a
determination that Plaintiff failed to meet her burden, under Romero, of demonstrating
the existence of evidence that would require a trial on the merits. See id. On appeal,
Plaintiff argues that two issues of fact precluded the court’s summary judgment.
{45} 	First, Plaintiff argues that there exists a factual issue regarding the basis for her
termination from the residency program. In support of her argument, Plaintiff points
out that, although the notice of final action by which Defendant terminated Plaintiff

23
from the residency program states that the various forms of conduct for which Plaintiff
was terminated constituted “administrative misconduct,” the notice of final action
“clearly articulate[d] academic and professional objections[.]” Therefore, Plaintiff
argues, she was actually terminated for “alleged non-administrative misconduct[.]”
Plaintiff argues that since she was not terminated for administrative misconduct, she
was not required to follow the three-step grievance procedure upon which the district
court’s summary judgment order was based. Rather, Plaintiff argues, she was required
to and did follow a “bifurcated two-step grievance process” that is applicable to
termination based on academic or professional misconduct. Based on the foregoing,
Plaintiff argues that the district court erred in concluding as a matter of law that she
failed to comply with the three-step grievance procedure required in the employment
contract.
{46} 	Plaintiff does not supply any evidentiary or legal support for her assertion that,
contrary to what was stated in the notice of final action, the actions that led to her
termination constituted non-administrative misconduct. We note as well that in
Plaintiff’s grievance forms, attached to Defendant’s motion for summary judgment,
Plaintiff referred to the grievance procedure applicable to disciplinary action for
administrative misconduct. Accordingly, we are not persuaded that the district court
erred in granting Defendant’s summary judgment motion. See id. (stating that in

24
response to the movant’s showing of entitlement to summary judgment, the non-
movant must show, rather than merely argue, the existence of evidence that warrants
a trial on the merits); V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 2, 115 N.M.
471, 853 P.2d 722 (“[A]rguments of counsel are not evidence upon which a trial court
can rely in a summary judgment proceeding.”).
{47} 	Plaintiff nevertheless argues that even if the grievance procedure applicable to
termination on administrative misconduct grounds applied to her, she could not have
submitted her dispute to binding arbitration because only the union that negotiated the
terms of the employment contract on behalf of all medical residents was permitted to
do so. And, according to Plaintiff, the union “did not elect to proceed to the third
step—binding arbitration[.]” In Plaintiff’s view, she “exhausted her remedies within
the UNM system” by completing the only two steps of the grievance procedure that
she, personally, could do. From our review of the record, we conclude that Plaintiff
failed in the district court to provide any evidence in support of this argument.
Specifically, Plaintiff does not point to any evidence demonstrating that she attempted
but the union refused to submit her grievance to arbitration, thus leaving her unable
to complete the grievance procedure. Plaintiff’s arguments on appeal are unsupported
by citations to the record on appeal and fail to demonstrate grounds for reversing the
district court’s summary judgment order. See id.; Muse v. Muse, 2009-NMCA-003,

25
¶ 51, 145 N.M. 451, 200 P.3d 104 (stating that, on appeal, this Court will not rely on
the arguments and assertions of counsel that are unsupported by citations to the
record).
3. 	Plaintiff’s TCA Arguments
{48} 	The district court granted Defendant’s motion to dismiss Plaintiff’s tort claims
because Plaintiff failed to comply with the TCA’s notice requirement. Plaintiff argues
that the court erred in concluding that she failed to meet the TCA’s notice
requirements. She also argues that the merits of her tort claims precluded dismissal.
Because we affirm the district court’s dismissal on the notice issue, we do not consider
Plaintiff’s remaining TCA arguments.
{49} 	Under the TCA, a person who claims damages against a public entity is
required to provide the administrative head of the public entity with written notice
stating the “time, place[,] and circumstances of the loss or injury” that gave rise to the
claim. Section 41-4-16(A). Unless the public entity has been given notice as required
in Section 41-4-16(A) or unless the public entity had “actual notice of the
occurrence[,]” a court is jurisdictionally barred from considering the matter. Section
41-4-16(B). Plaintiff claims that dismissal of her tort claims was improper because,
by reporting the alleged rape, Plaintiff provided Defendant with “actual notice” of the

26
occurrence; thus, Plaintiff contends, she satisfied the notice requirement of Section 41-
4-16(B). Under the clear constraint of precedent, we disagree.
{50} 	The purpose of the notice requirement in Section 41-4-16(B) is “to ensure that
the agency allegedly at fault is notified that it may be subject to a lawsuit.” City of Las
Cruces v. Garcia, 1984-NMSC-106, ¶ 5, 102 N.M. 25, 690 P.2d 1019 (internal
quotation marks and citation omitted); Dutton v. McKinley Cnty. Bd. of Comm’rs,
1991-NMCA-130, ¶ 9, 113 N.M. 51, 822 P.2d 1134 (stating that it is “firmly
established that the notice required is not simply actual notice of the occurrence of the
accident or injury but rather, actual notice that there exists a likelihood that litigation
may ensue” (internal quotation marks and citation omitted)). Requiring a potential
claimant to provide notice that litigation is likely to ensue is intended to “reasonably
alert [the agency] to the necessity of investigating the merits of a potential claim
against it.” Smith v. State ex rel. State Dep’t of Parks & Recreation, 1987-NMCA-
111, ¶ 12, 106 N.M. 368, 743 P.2d 124; see also Ferguson v. State Highway Comm’n,
1982-NMCA-180, ¶ 12, 99 N.M. 194, 656 P.2d 244 (stating that the purpose of the
notice requirement under the TCA is to enable an investigation “while the facts are
accessible[,]” “to question witnesses[,]” “to protect against simulated or aggravated
claims[,]” and “to consider whether to pay the claim or to refuse it”).

27
{51} 	Plaintiff does not argue on appeal, nor did she allege in the district court, that
her report of the alleged rape created or was sufficient to notify Defendant of a
likelihood that litigation may ensue. Without such notice, the fact that Plaintiff
notified Defendant of the alleged rape does not satisfy Section 41-4-16(B). Dutton,
1991-NMCA-130, ¶ 9 (stating that actual knowledge of a plaintiff’s alleged injury is
insufficient to comply with Section 41-4-16). The district court properly dismissed
Plaintiff’s TCA claims.
4. 	Plaintiff’s Jury Instructions Arguments
{52} 	In regard to the instructions given to the jury, Plaintiff argues that the district
court erred in two ways. Plaintiff’s first argument pertains to the instruction that stated
the elements of a “hostile work environment” claim. In relevant part, the jury was
instructed that to prove her hostile work environment theory, Plaintiff was required
to establish that Defendant’s “alleged conduct, after it learned of Plaintiff[’s]
allegations of rape, was based on her sex and was severe and pervasive.” Plaintiff
argues that because the given instruction included the phrase “severe and pervasive”
instead of the phrase “severe or pervasive[,]” as stated in Plaintiff’s proffered
instruction on this issue, the jury was provided with a misstatement of the law.
{53} 	Plaintiff’s argument regarding the hostile work environment instruction is
premised on our Supreme Court’s recognition, in Nava v. City of Santa Fe, that

28
“generally” a hostile work environment claim requires showing that “the harassment
was sufficiently severe or pervasive to create an abusive work environment[.]” 2004-
NMSC-039, ¶ 6, 136 N.M. 647, 103 P.3d 571 (quoting Lawrence Solotoff & Henry
S. Kramer, Sex Discrimination and Sexual Harassment in the Work Place § 3.04[2],
at 3-31 (2004)) (internal quotation marks omitted). The Nava Court also observed,
however, that in New Mexico the HRA has been interpreted to require conduct that
is “so severe and pervasive that . . . the workplace is transformed into a hostile and
abusive environment for the employee.” Nava, 2004-NMSC-039, ¶ 5 (quoting Ocana
v. Am. Furniture Co., 2004-NMSC-018, ¶ 24, 135 N.M. 539, 91 P.3d 58) (internal
quotation marks omitted). The phrase “severe and pervasive” used in Ocana and
recognized in Nava continued, after Nava, to be employed by our Supreme Court in
the context of hostile work environment claims. See, eg., Ulibarri v. State, 2006-
NMSC-009, ¶ 13, 139 N.M. 193, 131 P.3d 43 (“The alleged harassment . . . was not
sufficiently severe and pervasive to support [the p]laintiff’s claim.”).
{54} 	The issue in the present case, whether harassment must be “severe and
pervasive” or “severe or pervasive” was not considered by the Nava Court, and
therefore, Nava is not authority for Plaintiff’s argument. Ramirez v. Dawson Prod.
Partners, Inc., 2000-NMCA-011, ¶ 10, 128 N.M. 601, 995 P.2d 1043 (“[C]ases are
not authority for propositions they do not consider.”). Further, we are not persuaded

29
that, by its mere recognition of a general rule cited in a treatise, the Nava Court
intended to announce a new standard applicable to hostile work environment claims
in New Mexico. Accordingly, we conclude that the district court’s instructions to the
jury on this issue accurately stated the law.
{55} 	Plaintiff’s second argument in regard to the jury instructions is a generalized
complaint that the district court failed to give the jury Plaintiff’s proffered instructions
pertaining to three issues: Defendant’s failure to conduct an adequate and fair
investigation into the alleged rape, its failure to prepare a written report on the alleged
rape, and its failure “to respond” to Plaintiff’s reports that she felt “traumatized,
terrified, intimidated[,] and unable to work or learn” when she was required to interact
with the senior resident. Insofar as we can tell from Plaintiff’s briefing, Plaintiff’s
argument regarding Defendant’s failure to prepare a written report is raised for the
first time on appeal. Therefore, this issue will not be considered. See Wolfley v. Real
Estate Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M. 187, 668 P.2d 303 (stating that the
appellate courts will not consider theories that are raised for the first time on appeal).
{56} 	As to Plaintiff’s contention that the district court erred in failing to instruct the
jury in regard to Defendant’s failure to conduct an investigation into the alleged rape
and its failure “to respond” to Plaintiff in a particular manner, Plaintiff fails to
demonstrate where, in the record, facts to support these instructions were argued

30
before the district court, argued at trial, or supported by evidence that was presented
to the jury. See Rule 12-213(A)(4) NMRA (requiring the appellant to include in the
brief in chief citations to the record proper, transcript of proceedings, or exhibits relied
upon in support of each argument). We will not search the record on Plaintiff’s behalf;
accordingly, Plaintiff’s argument provides no grounds for reversal. See Muse, 2009-
NMCA-003, ¶ 72 (stating that this Court “will not search the record for facts,
arguments, and rulings in order to support generalized arguments”).
5. 	Conclusion of Issues in Plaintiff’s Appeal
{57} 	In summary, we reverse the district court’s order dismissing Plaintiff’s WPA
claim. As to all other issues raised by Plaintiff, we affirm. We turn now to
Defendant’s cross-appeal.
B. 	Defendant’s Cross-Appeal
{58} 	Defendant’s cross-appeal pertains to the district court’s decisions regarding its
requested costs and attorney fees. As to the costs issue, Defendant relies upon both
Rule 1-068 and Rule 1-054. Since the jury did not enter a judgment in favor of
Plaintiff, Rule 1-068 does not apply under the circumstances of this case. See Rule 1-
068(A) (“If an offer of settlement made by a defending party is not accepted and the
judgment finally obtained by the claimant is not more favorable than the offer, the
claimant must pay the costs . . . incurred by the defending party after the making of

31
the offer[.]”); Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 100, 134 N.M. 77, 73
P.3d 215 (“Rule 1-068 . . . does not apply where the judgment is entered against [a]
plaintiff-offeree and in favor of a defendant-offeror.”). Accordingly, we limit our
review of the costs issue to Defendant’s arguments under Rule 1-054.
{59} 	Pursuant to Rule 1-054(D)(1), “costs . . . shall be allowed to the prevailing party
unless the court otherwise directs[.]” Attorney fees awards are governed by the
American rule, which provides that “absent statutory or other authority, . . . each party
should bear its own attorney fees”; an exception to the American rule is the court’s
power “to sanction the bad faith conduct of litigants and attorneys[.]” Clark v. Sims,
2009-NMCA-118, ¶ 21, 147 N.M. 252, 219 P.3d 20 (internal quotation marks and
citation omitted). The district court’s decisions regarding costs and attorney fees are
reviewed for an abuse of discretion. Robertson v. Carmel Builders Real Estate, 2004-
NMCA-056, ¶¶ 47, 53, 135 N.M. 641, 92 P.3d 653.
{60} 	Defendant filed motions seeking to recover attorney fees in an amount not
specified in the record, and costs, totaling $39,442.05. The district court found that,
at trial, Plaintiff testified that she had “earned almost no money. However, Plaintiff
has a medical degree and it was established at trial that Plaintiff had done little, to
nothing, to seek employment from the time of her termination to the time of trial.” The
court determined that, although the foregoing facts did not support an “outright denial

32
of Defendant’s cost bill[,]” they did warrant reducing certain costs that Defendant
sought to recover. The district court ultimately awarded Defendant costs totaling
$16,661.16. The district court denied Defendant’s request for attorney fees, reasoning
that the HRA does not allow attorney fees for a prevailing Defendant and that
Plaintiff’s case was not brought in bad faith, nor was it unreasonable, frivolous, or
lacking a foundation.
{61} 	Defendant argues that it was error for the district court to deny its costs for
certain depositions on the ground that they were not used at trial or in support of
summary judgment, as well as its electronic filing fees, its charges for obtaining
Plaintiff’s medical records, witness fees that it paid to Plaintiff’s psychiatrist who was
not qualified as an expert, and transcript fees that were not requested or approved by
the court. Additionally, Defendant argues that the court erred in reducing its jury
consultant fees from the total sum of $18,298.31 to the awarded sum of $2000. With
the exception of the court’s denial of Defendant’s electronic filing fees, which was
based on a misconstruction of Rule 1-054(D)(2)(a), we conclude that the district court
properly exercised its discretion in its decision regarding costs.
{62} 	Pursuant to the Rules of the District Court of the Second Judicial District,
Defendant was required to file all of its court documents electronically. See LR2-303
NMRA (stating that in the Second Judicial District Court, in civil, domestic relations,

33
and probate actions, “[t]he electronic filing of documents . . . is mandatory for parties
represented by attorneys”). Having prevailed against Plaintiff in this lawsuit,
Defendant sought to recover its electronic filing fee costs of $330. The district court
refused to award Defendant’s filing fees on the ground that “Rule 1-054 does not
allow for the recovery of e-filing charges.”
{63} 	Rule 1-054(D)(2)(a) provides that “filing fees” are generally recoverable. Rule
1-005(F) NMRA, governing the service and filing of pleadings and other papers with
the court, provides that “ ‘[f]iling’ shall include . . . filing an electronic copy[.]”
Nothing in these rules suggests that the cost of electronically filing court documents
is excluded from Rule 1-054(D)(2)(a)’s provision that filing fees are generally
recoverable. Further, to conclude that electronic filing fees comprise an exception to
Rule 1-054(D)(2)(a) would absurdly render that rule inapplicable to attorney-
represented litigants in a civil, domestic relations, or probate action in the Second
Judicial District Court who are required to file documents electronically. LR2-303. To
avoid this absurd result, and in accord with the language of the rule, we conclude that
“filing fees” as that term is used in Rule 1-054(D)(2) includes electronic filing fees.
{64} 	Because the district court’s denial of Defendant’s costs was expressly based
upon its misconstruction of Rule 1-054(D)(2)(a), we conclude that the court abused
its discretion in that regard. See Bhandari v. Artesia Gen. Hosp., 2014-NMCA-018,

34
¶ 9, 317 P.3d 856 (stating that the district court abuses its discretion when its
discretionary decision rests upon a misapprehension of the law), cert. denied, 2014-
NMCERT-001, 321 P.3d 935. On remand, the district court shall reconsider whether
to award Defendant its electronic filing fee costs of $330.
{65} 	Having reviewed Defendant’s arguments and the district court’s order, we
conclude that the court’s remaining costs decisions were supported by various
provisions of Rule 1-054, and we will not second guess the equitable consideration
by the district court of Plaintiff’s inability to pay the costs. See Martinez v. Martinez,
1997-NMCA-096, ¶ 20, 123 N.M. 816, 945 P.2d 1034 (stating that equitable
considerations are appropriate in determining whether to award costs); Gallegos ex
rel. Gallegos v. Sw. Cmty. Health Servs., 1994-NMCA-037, ¶ 30, 117 N.M. 481, 872
P.2d 899 (“[T]he losing party’s ability to pay is a proper factor to consider in
determining whether to award costs.”); see also Rule 1-054(D)(1) (granting the court
discretion to determine whether to award costs); Rule 1-054(D)(2)(d) (stating that
transcript fees are generally recoverable “when requested or approved by the court”);
Rule 1-054(D)(2)(e)(i), (ii) (stating, in relevant part, that the cost of a deposition is
generally recoverable only when it is used at trial or used in support of a motion for
summary judgment); Rule 1-054(D)(2)(g) (providing only that “expert” witness fees

35
are generally recoverable). Accordingly, we are not persuaded that the district court’s
denial or reduction of Defendant’s remaining costs constituted an abuse of discretion.
{66} 	In regard to attorney fees, Defendant, citing Sorbo v. United Parcel Service, 432
F.3d 1169, 1181 (10th Cir. 2005), argues that “[i]n federal employment discrimination
actions, the court has discretion to award fees to a prevailing defendant when the
plaintiff’s claim ‘was brought in bad faith, or was frivolous, unreasonable, or without
foundation.’ ” Defendant urges this Court to interpret the HRA to comport with the
principle that it has derived from Sorbo. Building on the foregoing, Defendant argues
further that because “Plaintiff’s claims in this litigation were, in fact, unreasonable and
without foundation[,]” the district court erred in denying its request for attorney fees
under the HRA.
{67} 	It is unnecessary in this case to determine whether the HRA should be read to
comport with the principle that Defendant has derived from Sorbo. Had the district
court determined that Plaintiff’s lawsuit was unreasonable or without foundation, it
was free to exercise its discretion to award attorney fees to Defendant. See Clark,
2009-NMCA-118, ¶ 21 (stating that, pursuant to the American Rule, a district court
may award a prevailing party its attorney fees on the ground that the losing party acted
in bad faith). The district court expressly found that Plaintiff’s lawsuit was not
unreasonable and was not brought “without foundation[.]” Defendant does not attack

36
the district court’s determination in that regard, and it is conclusive. See Rule 12-
213(A)(4) (stating that where a party does not specifically attack a finding, the finding
shall be deemed conclusive). Accordingly, Defendant’s assertion that Plaintiff’s
lawsuit was “in fact, unreasonable and without foundation” is contradicted by the
district court’s conclusive finding to the contrary. Defendant’s attorney fees argument
provides no grounds for reversal.
{68} 	In sum, as to Defendant’s cross-appeal, we reverse the district court’s decision
to deny the cost of Defendant’s electronic filing fees. On remand, the district court
shall consider whether those costs should be awarded to Defendant. As to the court’s
remaining decisions regarding costs and attorney fees, we affirm.
CONCLUSION
{69} 	We reverse the district court’s dismissal of Plaintiff’s WPA claim. We also
reverse the district court’s denial of Defendant’s request to recover the cost of its
electronic filing fees. We remand for further proceedings as to these issues. As to all
remaining issues raised in Plaintiff’s appeal and Defendant’s cross-appeal, we affirm.
{70} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:

CYNTHIA A. FRY, Judge

LINDA M. VANZI, Judge

37