July 10, 2019- Cecil Daniell v. Knox Oilfield Supply Inc., No. A-1-CA-37508

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXI
CECIL DANIELL,
Plaintiff-Appellant,
and
DARLA DANIELL,
Plaintiff,
v. No. A-1-CA-37508

KNOX OILFIELD SUPPLY INC., and
LEO TWEEDY,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Lisa B. Riley, District Judge

Duke Brett
El Paso, TX

for Appellant
Kemp Smith LLP
Jose A. Gonzalez
El Paso, TX
for Appellees
MEMORANDUM OPINION

HANISEE, Judge.

Filed 7/10/2019 1:11 PM

Hu
thark Reynolds

CO

1 {t} 	Plaintiff Cecil Daniell appeals from the district court's order granting summary
2 judgment in favor 	of Defendants. 	We issued a notice 	of proposed summary
3 disposition, proposing to reverse. Defendants have responded to our notice with a
4 memorandum in opposition, and Plaintiffs have responded with a memorandum in
5 support. We remain persuaded that summary judgment was in error. We, therefore,
6 reverse.
7 	{2} 	In this employment case, Plaintiffs Cecil Daniell and Darla Daniell, husband
8 and wife, brought suit against their former employer, Defendant Knox Oil Field
9 Supply, Inc., and their former manager, Defendant Leo Tweedy, for violations of the
10 New Mexico Human Rights Act and common law retaliatory discharge. [DS 1]
11 	Defendants sought summary judgment against Cecil and Darla. [DS 1] The district
12 court granted Defendants' motion for summary judgment against Cecil and denied
13 	summary judgment as to Darla; thereafter, Defendants and Darla entered a settlement
14 as to her claims against them. [DS 1; 3 RP 558-69, 583-84, 601-03, 606-08, 619-20]
15 	Thus, this appeal pertains only to Cecil's claims against Defendants.
16 {3} 	In their motion for summary judgment, Defendants challenged Cecil's ability
17 to establish the third element of a retaliation claim: a causal connection between his
18 	engagement in a protected activity. and his termination. [1 RP 89] See Juneau v. Intel
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1 Corp., 2006-NMSC-002,, 11, 139 N.M. 12, 127 P.3d 548 (stating that a prima facie
2 case of retaliation requires the plaintiff to show: "( 1) he [or she] engaged in protected
3 activity, (2) he [or she] was subject to adverse employment action subsequent to, or
4 contemporaneous with the protected activity, and (3) a causal connection exists
5 between the protected activity and the adverse employment action."); see also id., 13
6 (explaining that where the plaintiff did not ask the district court to take any action on
7 the first two elements of retaliation, the Court on appeal assumed that summary
8 judgment was improper on those elements and focused on whether the plaintiff made
9 a prima facie case of the third element).
10 {4} 	Defendants claimed that Scott Knox was the person who fired Cecil, not
11 	Cecil's former manager Defendant Leo Tweedy, and Mr. Knox was not aware that
12 Cecil 	made 	complaints 	to 	Mr. 	Tweedy 	about the 	termination 	of his 	wife's
13 	employment. [1 RP 90] Defendants further argued that even if Cecil could establish
14 a prima facie case of retaliation, the burden would shift to Defendants to establish a
15 	legitimate, nondiscriminatory reason for discharging Cecil. [Id.] Defendants asserted
16 that Cecil was discharged for not going to work and for cussing at Mr. Tweedy. [Id.]
17 Defendants argued that because they presented a legitimate reason for firing Cecil the
18 	burden shifted to Cecil to show the reason was false. [Id.]
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1 {5} 	In response to the motion for summary judgment, Plaintiffs asserted, and
2 presented evidence, that Mr. Tweedy fired both Darla and Cecil, and Defendants gave
3 conflicting answers as to who fired Cecil. [1 RP 178, 182; 2 RP 248-52, 256-57]
4 Cecil also argued that the proffered reasons for firing him were pretextual and that he
5 was discharged in retaliation for engaging in protected activity in opposing the
6 discrimination by Defendants against his wife and because of his spousal affiliation
7 with his wife. [DS 3; 2 RP 255-270] Cecil argued that Defendants sought summary
8 judgment .on the basis of their own weighing of the evidence and their own
9 interpretation of the facts. [2 RP 245] Cecil asserted he was fired on the same day he
10 complained about the discrimination against his wife and that a reasonable person
11 	would not have fired him. [2 RP 245, 255-70] Cecil claims that the record showed
12 that he had not received any discipline at work nor suffered performance issues before
13 	he was fired on the day his wife was terminated for age discrimination. [MIS 3] Cecil
14 further claims that contrary to Defendants' assertion, he went to work on the day he
15 	was fired and refused the supervisor's instruction to get his "ass out to the yard"
16 because he was upset that Defendants had just fired his wife because they wanted a
17 younger girl. [MIS 2-3; 2 RP 285] Cecil relied on Juneau for the proposition that
18 	"[t]he fact-finder should be free to consider timing and proximity, along with all the
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1 other 	facts 	and 	circumstances, 	in 	deciding 	the 	ultimate 	issue 	of causation."
2 2006-NMSC-002, 122. [2 RP 258]
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The district court concluded:
Defendants are entitled to judgment as a matter of law. Cecil
Daniell has not established a prima facie case of retaliation. Even if it
were established that Leo Tweedy made the decision to fire Cecil
Daniell, and further, that he had knowledge of her claims of age
discrimination, Knox Oil has articulated a non-retaliatory reason for
firing Cecil Daniell. Leo Tweedy called Cecil Daniell for the sole·
purpose of getting him to come to work. He was not trying to get rid of
Cecil Daniell, to the contrary, he was trying to get him to fulfill the
obligations of his employment. Cecil Daniell refused to go to work, and
insubordinately cursed at Leo Tweedy, behavior which any reasonable
employee would expect to immediately result in his or her termination
and is, in most cases, tantamount to quitting .. This behavior is admitted
by Cecil Daniell and there is no evidence, whatsoever, that reason is
false. There is no reason to question this termination as being anything
other than the direct and natural consequence of Cecil Daniell' s actions.
19 	[3 RP 620]
20 	{7} 	Our notice proposed to reverse on grounds that there were genuine issues of
21 	material fact regarding the reasons for his discharge, and the district court erroneously
22 weighed the evidence at the summary judgment stage. [CN 3-4]
23 	{8} 	In response to our notice, Defendants repeat their contention that summary
24 judgment was proper because under the burden-shifting framework, Defendants
25 	asserted a legitimate, non-discriminatory, and non-retaliatory reason for discharging
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1 him, and Plaintiff failed to respond with evidence that Defendants' reason for firing
2 him was false and that discrimination and retaliation were the real reasons. [MIO 1,
3 3, 5, 7, 14-17]
4 {9} 	We are not persuaded that summary judgnient was proper. We have repeatedly .
5 acknowledged that "even when the facts are undisputed, if conflicting inferences can
6 be drawn, summary judgment is improper." In re Michael R.C., 1999-NMCA-036,
7 ,13, 126N.M. 760,975P.2d373. WecontinuetoagreewithPlaintiffthatthedistrict
8 court weighed the evidence and made credibility determinations that our Supreme
9 Court warned against in Juneau:
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whether a proffered justification is legitimate, or is merely an excuse to
cover up illegal conduct, is largely a credibility issue and often requires
the 	use 	of circumstantial 	evidence. 	It 	is 	rare 	a 	defendant keeps
documents or makes statements that directly indicate a retaliatory motive
for terminating an employee. Issues such as this should normally be left
exclusively to the province 	of the jury. Judges 	should not make
credibility determinations or weigh circumstantial evidence at the
summary judgment stage.
18 	2006-NMSC-002, , 23.
19 {10} 	For the reasons stated above and in our notice, we conclude there were genuine
20 issues of material fact regarding the reasons for Plaintiffs discharge and the district
21 	court erroneously weighed the evidence in granting summary judgment in favor of
22 Defendants. We, therefore, reverse the district court's order.
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a4; ITISSO ORDERED.

e

» MV o—

J. MILES HANISEE, Judge

WE CONCUR:

MEGAN P. DUFFY, Ju

BRIANA H. ZAMORA, Judge