Oakeley v. New Mexico Department of Transportation

[[COURTLISTENER_SUBOPINION {"id":"10282516","type":"100trialcourt","part":"opinion","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                        
               FOR THE DISTRICT OF NEW MEXICO                           

BRUCE OAKELEY,                                                            

   Plaintiff,                                                           

v.                                      Civ. No. 1:20-cv-00257 MIS/KK     

NEW MEXICO DEPARTMENT                                                     
OF TRANSPORTATION,                                                        

   Defendant.                                                           

               MEMORANDUM OPINION AND ORDER                             
   THIS MATTER comes before the Court on Defendant New Mexico Department of 
Transportation’s (“NMDOT”) Motion for Summary Judgment. ECF No. 34. Plaintiff filed a 
Response, and Defendant filed a Reply. ECF Nos. 39, 42. For the reasons that follow, 
the Court grants summary judgment on Plaintiff’s sole federal claim and remands his 
remaining claim to state court.                                           
                        BACKGROUND                                      
   Plaintiff filed suit in the Second Judicial District Court of Bernalillo County on 
December 17, 2020, alleging retaliation in violation of the New Mexico Whistleblower 
Protection  Act  (“WPA”),  N.M.  Stat.  §  10-16C-3,  and  the  Family  Medical  Leave  Act 
(“FMLA”),
29  U.S.C.  §  2615
(a).  ECF  No.  1-1.  Defendant  removed  the  action  on 
March 20, 2020. ECF No. 1.                                                
   The suit arises out of Plaintiff’s termination from his position as Chief Information 
Officer (“CIO”) of the NMDOT’s Information Technology (“IT”) Division. At the time of his 
termination on October 31, 2019, Plaintiff had been employed by the NMDOT since 
March 2007. Undisputed Material Fact (“UMF”) 1.1 Plaintiff was promoted to CIO in 
July 2016. UMF 2. As CIO, Plaintiff’s self-described job duties included managing “all IT 
budgets” and “90 technical and operations staff” as well as overseeing various other 
departments. UMF 3; ECF No. 34-3 at 1. Plaintiff’s direct supervisor from April 21, 2018, 
through  December  29,  2018,  was  former  NMDOT  Cabinet  Secretary  Tom  Church. 
UMF 4. His direct supervisor from January 1, 2019, until the date of his termination was 
current NMDOT Cabinet Secretary Michael Sandoval.
Id.
Whistleblowing Activity                                              
   Plaintiff’s  whistleblowing  claim  is  premised  on  a  series  of  emails  exchanged 
between Plaintiff; Plaintiff’s supervisee, Gavin Lujan; Inspector General Jeff Canney of 
the NMDOT Office of Inspector General (“OIG”); and Human Resources (“HR”) Director 
Gilbert Archuleta. Plaintiff alleges that his emails constituted protected whistleblowing 
because they communicated “Plaintiff’s good faith belief that unethical and illegal conduct 
was occurring.” ECF No. 1-1 at ¶ 24.                                      
   On May 17, 2018, the OIG’s Audit Division released a list of planned and routine 
audits scheduled from October 1, 2018, through September 30, 2019, which included a 
statewide review of random employees’ timesheets to survey the NMDOT’s use of 

overtime (“OT”) and compensatory time (“CT”). UMF 50. In the course of this planned 
audit, Michael Lucero, an IT employee, was randomly selected and his OT/CT documents 
requested. ECF No. 34-11 at 5–6. Mr. Lujan responded to the request by informing the 



   1 Citations to Undisputed Material Facts, or “UMFs,” refer to the Statement of Undisputed Material 
Facts in Defendant’s Memorandum in Support of its Motion for Summary Judgment. ECF No. 34 at 3–15.  
OIG that although Michael Lucero was “under” IT, he reported directly to Charles Remkes 
at Intelligent Transportation Systems (“ITS”).
Id. at 5
.                  
   On April 11, 2019, Mr. Lujan sent an email to Mr. Canney, copying Plaintiff and 
Mr. Archuleta. He observed that the timesheets of two ITS employees, Michael Lucero 
and Lisa Lopez, “consistently show several hours of standby as well as extra hours 
worked.”
Id.
Mr. Lujan suggested expanding the OT/CT audit “to provide more clarity on 
the situation.”
Id.
On April 17, 2019, Plaintiff replied with his own follow-up message 

addressed to Mr. Canney, expressing his concern about the apparently unauthorized 
hours, totaling $50,000 to $60,000 in paid OT, “because this comes out of my budget.”
Id.
at 3–4. Mr. Archuleta responded that Mr. Canney was “no longer looking into the OT 
hours issue at the ITS unit” because he considered it to be a management issue that 
would not require the OIG’s involvement.
Id. at 3
. Plaintiff responded: “Jeff are you sure 
this is your position? I think we need to hear from you on this as well . . [.] I thought you 
handled waste fraud and abuse? If I’m not correct let me know.”
Id.
Two days later, on April 19, 2019, Mr. Canney responded, copying Secretary 
Sandoval. He explained that Mr. Archuleta had been mistaken; the OIG was continuing 
with its audit, although Mr. Lujan’s request “include[d] issues of budget, management and 

policy.”
Id.
Mr. Canney stated that he was prepared to discuss his findings with “agency 
leadership and/or whomever ITS reports to,” but added: “To discuss this with you [Plaintiff] 
creates an appearance of a conflict for us both, as you don’t oversee the management of 
ITS . . . The on-going friction between IT and ITS only complicates my concern.”
Id.
On the same day, Plaintiff responded:                                
   As stated below those monies come from my IT budget and it affects my 
   ability to manage those dollars that I cannot account for or justify. I don’t 
   feel there is a conflict between ITS and IT. I feel the IT portion has been 
   miss-managed over the years and overtime, standby time and holiday pay 
   has been abused not to mention ITS not following IT policy in general. 
   Therefore, this is why Mr. Gavin Lujan looked into further and pointed these 
   inconsistencies out to you at the prompting of your Overtime and Comp time 
   audit.                                                               
   We all have a fiduciary/moral responsibility to report finding such as these 
   to the OIG correct me if I’m wrong? Based on your response below I am not 
   clear what your function(OIG) Fraud, Waste and Abuse moto [sic] stands 
   for and what purpose that serves. Maybe it needs to be revised or further 
   clarified and or abolished?                                          
   Additionally, all NMDOT staff has received training and signed the annual 
   acknowledgement regarding responsibility to report any sort of misuse or 
   abuse of state resources as well adhere to all NMDOT AD’s and directives 
   and more so to SPO rules regarding Fraud, Waste and Abusee and overall 
   State Policy. Please again correct me if I am wrong?
Id. at 2
.                                                                 
   Secretary  Sandoval  joined  the  conversation  for  the  first  time  in  response  to 
Plaintiff’s message, stating that “the tone of your email is inappropriate” and that he 
“expect[ed] a much higher level of professionalism from any DOT employee, especially a 
high lever [sic] manager such as the CIO of a large department.”
Id. at 1
. Secretary 
Sandoval explained that Plaintiff was not entitled to information about the investigation, 
but that if he felt the issue was being handled incorrectly he could elevate it to Secretary 
Sandoval “in a PROFESSIONAL manner.”
Id. at 2
. Plaintiff interpreted this email as 
“scathing,” ECF No. 34-2 at 10, 145:25, and replied that he would “cease and desist all 
communication internally regarding this matter.” ECF No. 34-11 at 1. However, Plaintiff 
maintains that he acted as a whistleblower in his prior two emails by reporting “fraud and 
waste,” and that he was subsequently retaliated against as described herein. ECF No. 39 
at 17.                                                                    
   Travel Voucher Tip and Investigation                                 
   On  June  26,  2019,  approximately  two  months  after  Plaintiff’s  alleged 
whistleblowing took place, the OIG received an anonymous complaint that Plaintiff had 
not been following NMDOT policies and procedures related to out-of-state travel. UMF 9. 

OIG investigator Allen Sanchez was assigned to the complaint, and the investigation 
began  that  day.  UMF 11;2  ECF  No.  42-1  at  ¶¶  6,  7.  Plaintiff  was  placed  on  paid 
administrative  leave  pending  the  outcome  of  the  investigation.  ECF  No.  34-7.  Mr. 
Sanchez interviewed four employees (including Plaintiff) and reviewed hundreds of travel 
invoices, receipts, and other documents. ECF No. 42-1 at ¶ 7. He concluded that, in 
October 2018, Plaintiff had deliberately misrepresented his travel itineraries in order to 
receive excess reimbursement.
Id. at ¶ 17
. On August 14, 2019, Mr. Sanchez submitted 
a 34-page OIG Report to Secretary Sandoval and Employee Relations Manager Geri 
Galvan, attaching all invoices and receipts and setting forth his findings.
Id. at ¶¶ 9, 10
. 
   The basis for the investigation and subsequent findings was as follows. In the fall 

of 2018, Plaintiff presented itineraries and vouchers for two back-to-back out-of-state trips 

   2 Although Plaintiff purports to “deny” UMF 11, his denial is nonresponsive to Defendant’s statement 
and presents no genuine dispute of material fact. Plaintiff’s assertions that “Investigator Sanchez had been 
fired from the Las Vegas Police Department” and “Plaintiff did not believe Sanchez was competent to be 
an investigator,” ECF No. 39 at 2–3, even if true, have no bearing on whether Mr. Sanchez was assigned 
to investigate or when that investigation commenced. Defendant’s UMF 11 is supported by evidence and, 
in the absence of any meaningful dispute, the Court takes it as true. See D.N.M.LR-Civ. 56.1(b) (when 
disputing material facts on summary judgment, respondent must “refer with particularity to those portions 
of the record upon which the non-movant relies”; all material facts “will be deemed undisputed unless 
specifically controverted” (emphasis added)). The same goes for Plaintiff’s denials of UMFs 13, 14, and 17. 
to his supervisor, then-Cabinet Secretary Tom Church. UMF 19;3 ECF No. 34-1 at 9–13. 
These itineraries and vouchers claimed a round trip from Plaintiff’s home in Santa Fe to 
San Diego, California, on October 20–24, 2018, and a separate round trip from Santa Fe 
to  Scottsdale,  Arizona,  on  October  24–26,  2018.  ECF  No.  34-1  at  9.  Plaintiff  was 
reimbursed the cost of four flights and mileage for two round trips between Santa Fe and 
the Albuquerque airport.
Id.
In fact, however, the day after Plaintiff was reimbursed, he 
canceled his reservation and rebooked his flights to travel directly from San Diego to 

Scottsdale.
Id. at 10
. Therefore, Plaintiff did not return to the Albuquerque airport on 
October 24, 2018, as represented by the submitted vouchers and itineraries. The change 
in travel plans resulted in a total overpayment to Plaintiff of approximately $180.
Id.
However, Plaintiff did not notify anyone of the overpayment or return the excess funds. In 
addition, although Plaintiff originally submitted an airport parking receipt with no dates or 
times listed, the OIG investigation uncovered a nearly identical airport parking receipt that 
listed the dates and times of arrival and departure.
Id. at 12
. This discrepancy suggested 
that someone had deliberately altered the receipt to make it look as though Plaintiff 
traveled from Albuquerque to Santa Fe and back between his two trips, instead of leaving 
his car parked at the airport for the duration.                           

   Faced with this evidence, Plaintiff asserted that the overpayment was a clerical 
error rather than an intentional fraud. ECF No. 34-2 at 5, 109:2–16. He also denied that 
he instructed his assistant, Laura Hernandez, to alter the airport parking receipt. See id.; 

   3 Plaintiff “denies the allegations” of UMF 19. ECF No. 39 at 4. However, based on the record, 
including Plaintiff’s own deposition testimony and Response brief, all facts contained therein are undisputed 
except for the statement that “Plaintiff directed his assistant to alter a receipt.” Plaintiff has not produced 
evidence to dispute the remaining facts. Because they are supported by the record and by Plaintiff’s own 
admissions, the Court considers them undisputed.                          
ECF  No.  42-1  at  ¶  18.  Plaintiff  acknowledged  the  change  in  travel  plans  and  the 
overpayment and eventually repaid the $180 overpayment to the NMDOT. UMF 22; ECF 
No. 42-6.                                                                 
   On October 7, 2019, Secretary Sandoval issued a Notice of Contemplated Action 
(“NCA”), notifying Plaintiff that the NMDOT was considering his dismissal. ECF No. 34-1 
at 1. As justification for his contemplated decision, Secretary Sandoval cited the following: 
Plaintiff’s status as a high-level manager who should have known and abided by the rules; 

his  concerns  about  Plaintiff’s  professionalism  and  fitness  to  supervise;  Plaintiff’s 
comments during his interview, which reflected a disregard of policies; the fact that 
Plaintiff altered his travel plans without approval and with resulting financial gain; and the 
fact that the parking receipt submitted with Plaintiff’s Scottsdale voucher was altered to 
conceal his change in travel plans. ECF No. 34-1 at 5. The NCA also noted that neither 
Plaintiff’s tenure with the NMDOT nor his subsequent repayment of $180 offset these 
concerns.
Id.
In a letter dated October 18, 2019, Plaintiff’s attorney responded to the NCA. 
UMF 31; ECF No. 34-9. The letter claimed, inter alia, that former Secretary Church had 
approved the change in Plaintiff’s travel itinerary. UMF 32; ECF No. 34-9 at 1. Secretary 

Sandoval directed the OIG to confirm this with Mr. Church, but Mr. Church did not show 
up to his scheduled telephone interview or contact the NMDOT thereafter. UMF 37. At his 
deposition, Mr. Church testified that he remembered a phone call during which he verbally 
authorized Plaintiff to change his travel plans. UMF 39. However, this information was not 
provided to the OIG investigator. ECF No. 34-10 at 1, 74:8–9.             
   On  October  29,  2019,  Plaintiff  received  a  Notice  of  Final  Action  (“NFA”), 
terminating his employment effective October 31, 2019. ECF No. 34-1 at 7. The NFA 
reiterated the reasons for termination set forth in the NCA; recited the OIG investigation 
findings, adding that the NMDOT had attempted unsuccessfully to interview Mr. Church; 
and informed Plaintiff that he could appeal his termination to the State Personnel Board. 
ECF No. 34-1 at 7–15, 22. Plaintiff did not file an appeal. UMF 48.       
   Request for Family Medical Leave                                     

   Plaintiff also asserts a claim for relief under the FMLA; the relevant facts are as 
follows. On or about March 13, 2019, approximately one month before the alleged 
whistleblowing and three months before the anonymous complaint, Plaintiff notified the 
NMDOT of his need to take Family Medical Leave (“FML”) on an intermittent basis in 
order to care for his mother. ECF No. 34-12. The request was approved on April 2, 2019.
Id.
Plaintiff contemplated using two or three days of FML per week. ECF No. 34-2 at 21, 
195:8–13. On or about July 17, 2019,4 Plaintiff emailed Secretary Sandoval to notify him 
that he would shortly begin taking “two to three days a week” of FML as needed.
Id. at 21
, 
196:20–25. Plaintiff did not receive a response.
Id. at 22
, 197:4–6.      
   That afternoon, Employee Relations Manager Geri Galvan and several other 

unidentified employees entered Plaintiff’s office to deliver a letter notifying him that he 
was placed on paid administrative leave “effective immediately and until further notice,” 


   4 In his Response brief, Plaintiff states that he sent the email on July 15, 2019. ECF No. 39 at 18. 
Plaintiff’s original email is not in the record before the Court. However, Plaintiff clearly stated in his 
deposition testimony that he was placed on administrative leave “that afternoon [after sending the email].” 
ECF No. 34-2 at 22, 197:6. Because the letter placing Plaintiff on administrative leave was dated 
July 17, 2019, the Court infers that Plaintiff’s email was also sent on that date. ECF No. 34-7. The exact 
date, in any event, is not material for purposes of this summary judgment motion. 
pending an investigation. ECF No. 34-7. The terms of Plaintiff’s administrative leave 
required him to “report to duty or otherwise respond” within two hours’ notice between the 
hours of 8:00 a.m. and 5:00 p.m., Monday through Friday.
Id.
On Tuesday, October 15, 2019, Plaintiff was contacted to report to an “emergency 
meeting” within approximately two hours. ECF No. 34-1 at 15. Plaintiff stated that he 
would not be available until Thursday, October 17. Id.; ECF No. 34-5 at 4, 18:1–6. He 
was placed on “AWOL status.” ECF No. 34-1 at 15. However, when Plaintiff subsequently 

explained that he was unable to attend because he was taking care of his mother, his 
status was reclassified as paid administrative leave. ECF Nos. 34-1 at 15; 34-2 at 24, 
205:12–16; 34-5 at 4, 18:7–17. Plaintiff remained on paid administrative leave until his 
termination.                                                              
                       LEGAL STANDARD                                   
   Summary judgment is appropriate “if the movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 
Fed. R. Civ. P. 56(a). A material fact is one “that might affect the outcome of the suit under 
the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986). A dispute 
is genuine if “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.”
Id.
The party seeking summary judgment bears the initial burden of demonstrating 
that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322
(1986). Once that threshold is met, the nonmoving party must designate “specific facts 
showing that there is a genuine issue for trial.”
Id. at 324
. In applying the summary 
judgment standard, the court “view[s] the evidence and the reasonable inferences to be 
drawn from the evidence in the light most favorable to the nonmoving party.” Parker 
Excavating, Inc. v. Lafarge W., Inc.,
863 F.3d 1213, 1220
(10th Cir. 2017) (citation 
omitted).                                                                 
                         DISCUSSION                                     
I.   FMLA Claim                                                           
   The Court turns first to Plaintiff’s federal claim. Pursuant to the FMLA, it is unlawful 
for an employer (1) “to interfere with, restrain, or deny the exercise of or the attempt to 

exercise, any right provided” under the FMLA; or (2) “to discharge or in any other manner 
discriminate against any individual for opposing any practice made unlawful” by the 
FMLA.
29 U.S.C. § 2615
(a)(1)–(2). The Tenth Circuit recognizes two theories of recovery 
under § 2615(a): “an entitlement or interference theory arising from § 2615(a)(1), and a 
retaliation or discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home Loan 
Bank of Topeka,
464 F.3d 1164, 1170
(10th Cir. 2006). “These two theories of recovery 
are separate and distinct theories that require different showings, differ with respect to 
the burden of proof, and differ with respect to the timing of the adverse action.” Dalpiaz v. 
Carbon Cnty,
760 F.3d 1126, 1131
(10th Cir. 2014) (quotation and alterations omitted). 
   a.  Nature of Plaintiff’s Claim                                      

   The preliminary question to be settled is whether Plaintiff’s FMLA claim proceeds 
under § 2615(a)(1) or § 2615(a)(2). In Count II of the Complaint, Plaintiff alleges that 
“Defendant retaliated against Plaintiff for exercising his right to FMLA leave . . . by 
terminating him.” ECF No. 1-1 at ¶¶ 29–30. In his Response brief, however, Plaintiff 
characterizes his claim as “an interferance [sic] FMLA claim” and alleges that “once he 
was put on administrative leave, it interfered with plans to take leave.” ECF No. 39 at 18. 
It appears, therefore, that Plaintiff originally pled a claim of retaliation under § 2615(a)(1) 
but now wishes to pursue a theory of relief under § 2615(a)(2).           
   Plaintiff was not entitled to alter his FMLA claim without seeking leave of the Court 
to amend his Complaint. See Dalpiaz, 760 F.3d at 1131–32 (refusing to consider an 
untimely retaliation argument when only an FMLA interference claim was originally pled). 
Although both originate from the same statute, retaliation and interference claims are not 
equivalent. Id. at 1131. The federal pleading standard does not “permit plaintiffs to wait 

until the last minute to ascertain and refine the theories on which they intend to build their 
case.” Evans v. McDonald’s Corp.,
936 F.2d 1087, 1091
(10th Cir. 1991); see also Orr v. 
City of Albuquerque,
417 F.3d 1144, 1153
(10th Cir. 2005) (district court’s refusal to 
consider a new claim on summary judgment was not an abuse of discretion where “the 
burden on Defendants” was “sufficiently different” for defending the new claim).  
   Nothing in Plaintiff’s Complaint indicated an intent to pursue a claim of interference 
under § 2615(a)(1). See generally ECF No. 1-1. At no point during the intervening ten 
months of litigation did Plaintiff seek leave to amend. Because Defendant was not put on 
notice of an interference claim, and because the two different claims involve significantly 
different elements and burdens of proof, allowing Plaintiff to alter his claim at this juncture 

would unfairly prejudice Defendant. The Court therefore declines to consider Plaintiff’s    
§ 2615(a)(1) claim for interference, and will analyze only his § 2615(a)(2) claim for 
retaliation.                                                              
   b.  FMLA Retaliation                                                 
   Courts apply the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792
(1973), to FMLA retaliation claims without direct evidence. Under the 
McDonnell Douglas framework, the plaintiff must first make a prima facie showing that 
“(1)  [h]e  engaged  in  a  protected  activity;  (2)  [the  employer]  took  an  action  that  a 
reasonable employee would have found materially adverse; and (3) there exists a causal 
connection between the protected activity and the adverse action.” Metzler,
464 F.3d at 
1171
. If the plaintiff succeeds in establishing a prima facie claim, the burden shifts to the 
employer to “offer a legitimate, non-retaliatory reason for the employment action.”
Id. at 
1170
. Finally, at the third step, the plaintiff “bears the ultimate burden of demonstrating 

that the defendant’s proffered reason is pretextual.”
Id.
In the absence of any direct 
evidence of retaliation,5 the Court considers Plaintiff’s proffered evidence under this 
burden-shifting framework.                                                
   On the prima facie inquiry, the Court finds that (1) Plaintiff’s exercise of FML 
constituted protected activity, and (2) Plaintiff’s termination was a materially adverse 
employment action.6 However, Plaintiff has failed to make the requisite showing of a 


   5 “Direct evidence is evidence, which if believed, proves the existence of a fact in issue without 
inference or presumption.” Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1117
(10th Cir. 2007) (quotation 
omitted). The Court finds without difficulty that no such evidence exists here, and Plaintiff does not oppose 
Defendant’s application of the McDonnell Douglas framework to his claims. See generally ECF No. 39.  

   6  Plaintiff  has  not  alleged  that  Defendant  retaliated  against  him  by  placing  him  on  paid 
administrative leave. See ECF No. 1-1 at ¶ 30. Indeed, Plaintiff testified at his deposition as follows: 
        Q: Are you saying that it was—that the investigation and the administrative leave 
   were a ruse to deprive you of FMLA?                                  
        A: I think they had this investigation premeditated to begin with. I think they were 
   getting ready to act on it. Unfortunately, when I had submitted for them, I had submitted 
   my FMLA request, that was the day they had to do it. Because they know if they would 
   have granted me any administrative leave, thereafter that would open up a bigger can of 
   worms for the DOT. So I think they acted on it immediately. I don’t think they were going to 
   give me that Letter of Contemplated—or that letter of dismissal, whatever, that day. I think 
   they were going to wait till probably that Friday. But since I had already put in that 
   request, they fast-tracked it through so that I wouldn’t have any FMLA to come back on.  
ECF No. 34-2 at 22, 199:5–18 (emphasis added). As this testimony demonstrates, Plaintiff appears to 
acknowledge that Defendant’s plan to place him on administrative leave predated his notice of intent to 
take FML.                                                                 
causal connection between the two events. Plaintiff announced an intention to use his 
approved FML on July 17, 2019. He was not terminated until October 29, 2019. ECF No. 
34-1 at 7. This more than three-month gap, standing alone, is insufficient to establish 
causation by temporal proximity. See Anderson v. Coors Brewing Corp.,
181 F.3d 1171, 
1179
(10th Cir. 1999) (“[W]e have held that a three-month period, standing alone, is 
insufficient to establish causation.”). Where “a considerable length of time has elapsed 
between a protected activity and an adverse employment action, a plaintiff wishing to 

survive  summary  judgment  must  present  additional  evidence  tying  the  adverse 
employment actions to the plaintiff's protected activity.” Foster v. Mt. Coal Co., LLC,
830 
F.3d 1178, 1191
(10th Cir. 2016) (quotation and alteration omitted). Plaintiff has not 
argued  that  any  other  evidence  supports  a  causal  inference  between  his  notice  to 
Secretary Sandoval and his termination, and no such evidence is apparent on the record. 
Therefore, summary judgment is appropriate in favor of Defendant.7        




   7 Even assuming, arguendo, that Plaintiff had succeeded in establishing a prima facie case, his 
retaliation claim would fail at the third step because he cannot demonstrate that Defendant’s proffered 
non-retaliatory reason for termination was pretextual. See Metzler, 676 F.3d at 1172 (to defeat summary 
judgment, plaintiff “must show that there is a genuine dispute of material fact as to whether [the defendant’s] 
explanations for terminating [his] employment are pretextual”). Plaintiff has not, for example, come forward 
with evidence of differential treatment for any “similarly-situated employees who violated work rules of 
comparable seriousness.” Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1230
(10th Cir. 2000). 
Testimony by Mr. Church and former Director Ron Baca that they were not “aware” of other employees 
being terminated for travel voucher violations is largely immaterial. See ECF Nos. 39-1 at 2; 39-1 at 10, 
125:7–12. Both Mr. Church and Mr. Baca left the NMDOT before Secretary Sandoval became Plaintiff’s 
supervisor. See Aramburu, 112 F.3d at 1404 (“Similarly situated employees are those who deal with the 
same supervisor . . . .”). Plaintiff has come forward with no specific comparators.  
   Likewise, the facts that someone removed Plaintiff’s sign from his office door; that former Secretary 
Church did, unbeknownst to Secretary Sandoval, verbally approve the change in travel plans; and that 
Plaintiff had no former disciplinary history do not demonstrate that Defendant’s stated reasons for 
termination were pretextual.                                              
   However, because Plaintiff’s prima facie claim fails at the third stage, the Court need not and does 
not here conduct a full analysis of pretext.                              
II.  Remand of State Law Claim                                          
   With summary judgment granted on Plaintiff’s federal claim, only his state law WPA 
claim  remains.  Defendant  urges  the  Court  to  continue  to  exercise  supplemental 
jurisdiction pursuant to
28 U.S.C. § 1367
. ECF No. 42 at 2 n.1. The Court finds, however, 
that Plaintiff’s state law claim is more appropriately resolved in the courts of the State of 
New Mexico.                                                               
   “If federal claims are dismissed before trial, leaving only issues of state law, the 

federal court should decline the exercise of jurisdiction by dismissing the case without 
prejudice.”  Bauchman  v.  West  High  Sch.,
132  F.3d  542,  549
(10th  Cir.  1997). 
Nevertheless, the district court has discretion to retain its jurisdiction over state law claims 
and should consider “the values of judicial economy, convenience, fairness, and comity” 
in determining whether to do so. Henderson v. AMTRAK,
412 F. App’x 74, 79
(10th Cir. 
2011).                                                                    
   Although  the  Court  is  sympathetic  to  Defendant’s  arguments  about  judicial 
economy, convenience, and fairness, the Court nevertheless finds that Plaintiff’s WPA 
claim raises several unsettled questions of state law that are better addressed by a 
New Mexico court. Because, here, considerations of comity support the usual approach 

of declining to exercise supplemental jurisdiction, the Court will remand the action to state 
court.                                                                    
                         CONCLUSION                                     
   For the reasons set forth above, Defendant’s Motion for Summary Judgment (ECF 
No. 34) is GRANTED IN PART. The Court GRANTS summary judgment in Defendant’s 
favor on Count II of the Complaint (“Retaliation Under the FMLA”). Plaintiff’s remaining 
state law claim is REMANDED to the Second Judicial District Court, County of Bernalillo, 
State of New Mexico.  The Clerk of Court is directed  to take the  necessary actions to 
remand the case. 
    IT 1S SO ORDERED. 
                                          Mavaoud  Syed      
                                        MARGARET STRICKLAND 
                                        UNITED STATES DISTRICT JUDGE 

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