This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 DEBRA COX, 2 Plaintiff-Appellant, 3

v. No. 34,031 4 CITY OF ALBUQUERQUE, 5 a municipal corporation, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Carl J. Butkus, District Judge 9 The Gilpin Law Firm, LLC 10 Donald G. Gilpin 11 Albuquerque, NM 12 for Appellant 13 City of Albuquerque City Attorney 14 Jessica M. Hernandez, City Attorney 15 Samantha M. Hultz, Assistant City Attorney 16 Melissa M. Kountz, Assistant City Attorney 17 Kellie J. Garcia, Assistant City Attorney 18 Albuquerque, NM 19 for Appellee 202 MEMORANDUM OPINION 1 GARCIA, Judge. 2 {1} Plaintiff, Debra Cox, appeals from a judgment in favor of Defendant, City of 3 Albuquerque (the City) on claims brought under the New Mexico Human Rights Act 4 (NMHRA), NMSA 1978, Sections 28-1-1 to -14 (1969, as amended through 2005), 5 for discrimination based upon her sex and her disability aris ing from her back injury, 6 for the failure to make a reasonable acc ommodation for her back injury, and for 7 retaliation. Plaintiff challenges two evidentia ry rulings made by the district court and 8 claims that these rulings constitute reversible error. We affirm. 9 BACKGROUND 10 {2} Plaintiff worked for the City at various intervals from 1992 to 2009. In 2000 11 Plaintiff slipped and suffered an injury to her back while working in the City’s transit 12 department. In 2001 Plaintiff transferred departments and started working as a traffic 13 investigator. Plaintiff worked in this capacity until May 2008 when her immediate 14 supervisor became aware that she had a lifting restriction related to her prior injury. 15 Plaintiff was told that the restriction prevented her from working as a traffic 16 investigator and was sent home. Plaintiff wa s not permitted to return to work and her 17 employment was ultimately terminated in May 2009. 181 The WCJ’s order did not come into eviden ce at trial and is not available in the 18 record and, as a result, the date and content of the order cannot be reviewed by this 19 Court. 20 3 {3} Between 2007 and 2010 Plaintiff filed se veral claims with the New Mexico 1 Worker’s Compensation Administration (WCA) relating to the City’s failure to pay 2 her medical bills and challenging the City’s position that, due to her lifting restriction, 3 she was unable to work as a traffic investig ator. In an effort to resolve these WCA 4 claims, the parties participated in administrative mediation. In conformity with the 5 mediator’s proposed settlement dated April 14, 2009, the City sent Plaintiff an offer 6 of re-employment as a security officer. The letter stated that the position offered was 7 “within [Plaintiff’s] physical restriction.” On April 16, 2009, Plaintiff rejected the 8 City’s offer in writing, stating that th e offer “[did] not contain enough specific 9 information for [her] to accept” and requesting that she be returned to her previous 10 position. The Workers’ Compensation judge (WCJ) overseeing the WCA claims 11 ultimately issued an order rejecting the new security officer position. 1 12 {4} Plaintiff filed the underlying complaint inMay 2010. Plaintiff alleged that the 13 WCJ overseeing her prior case had made multiple findings rele vant to this case. These 14 findings included that, (1) “[t]he position of traffic investigator did not require 15 Plaintiff to lift over forty pounds and met Plai ntiff[’s] medical restrictions;” and (2) 16 “[t]he offer of a securityguard position by the City was not reasonable in that it 174 lack[ed] specificity and had not been tailored to meet Plaintiff[’s] medical 1 restrictions[.]” The City neither admitted nor denied these facts in its answer and 2 stated: “[t]he recommendations of the [WCJ] speak for themselves.” 3 {5} On October 5, 2011, the parties entere d into a settlement agreement whereby 4 Plaintiff would receive a lump sum payment in exchange for dismissing all her claims 5 against the City in both this case and her WCA proceeding, including closing her 6 WCA file and pursing no further worker’s compensation claims. The settlement was 7 contingent upon the WCJ’s approval, and provided, inter alia , that the City would also 8 assist Plaintiff in applying for disab ility retirement through the Public Employees 9 Retirement Association (PERA). Plaintiff’s application was s ubsequently approved 10 for her PERA disability pension, subject toreevaluation after one year. However, the 11 settlement was ultimately rejected by the WC J and Plaintiff never finalized her PERA 12 application to implement the disability pens ion. On March 20, 2013, the City filed a 13 motion to enforce the settlement agreement. The district court denied the City’s 14 motion and deemed the settlement unenforceable as it was not approved by the WCJ. 15 {6} Prior to trial, several evidentiary motions were filed. The City filed a motion in 16 limine to exclude the WCJ’s findings cited by Plaintiff in her complaint. The district 17 court granted the motion, excluding any ruli ngs and the order that was entered by the 185 WCJ, including any reference to the fact that the WCJ determined the offer of re1 employment to be unreasonable. 2 {7} Plaintiff likewise filed a motion in limine to exclude all evidence of the 2011 3 settlement negotiations and the resulting se ttlement agreement. The district court 4 initially granted this motion. However, during the course of trial, the district court 5 permitted the City to introduce evidence th at Plaintiff had b een approved for her 6 disability pension by PERA. The district court did so on the grounds that this evidence 7 was relevant to the City’s affirmative defense—that Plaintiff failed to mitigate her 8 damages. Plaintiff did not challenge this re levancy determination by the district court. 9 Rather, Plaintiff argued that she should also be permitted to introduce the entire 10 settlement agreement. The district court di sagreed and denied Plaintiff’s request to 11 introduce the settlement agreement. 12 {8} Ultimately, the jury found in favor of the City on all claims. This appeal 13 followed. 14 DISCUSSION 15 I. The City’s Offer of Re-Employment 16 {9} As a preliminary matter, we deem it prude nt to identify several issues that are 17 not before us. This Court was not asked to decide whether an employer’s offer of 18 accommodation of an employee’s disability that was contingent upon the employee 196 settling her worker’s compensation claims can satisfy any of the employer’s 1 responsibilities under the NMHRA. Likewise, weare not asked to decide whether 2 such an offer of accommodation is legally sufficient when it is made close to a year 3 after the employer becomes aware of th e employee’s need for an accommodation. 4 These issues were not raised in the district court and are not before us on appeal. Our 5 review is limited accordingly. 6 {10} Plaintiff argues that the district court committed reversibleerror in permitting 7 the City to introduce evidence of the offer of re-employment as a security officer 8 without also permitting Plaintiff to present evidence that the re-employment offer was 9 subsequently rejected by the WCJ. Plaintiff makes two arguments in support of this 10 claim. Plaintiff first argues that the City ’s offer of re-employment was inadmissible 11 under Rule 11-408 NMRA. Second, Plaintiff argues that once the offer was admitted, 12 the district court erred in not admitting th e evidence of the WCJ’s rejection of the 13 offer as it was relevant to both the timing of the offer, as we ll as the fact that Plaintiff 14 was precluded from accepting it. We construe Plaintiff’s second argument as a claim 15 that the district court violated Rule 11-402 NMRA and Rule 11-403 NMRA. 16 A. Preservation 17 {11} The City argues that Plaintiff failed to preserve her Rule 11-408 argument 18 below as well as her argument that the WC J’s rejection was rele vant on the issue of 197 timeliness of the offer of re -employment. After a close ex amination of the record on 1 appeal, we agree. 2 {12} “We will not review arguments that were not preserved in the district court. . . . 3 In order to properly preserve an issue, it must appear that the party fairly invoked a 4 ruling of the district court on the samegrounds argued in the appellate court.” Vill. of 5 Angel Fire v. Bd. of Cty. Comm’rs of Colfax Cty ., 2010-NMCA-038, ¶ 15, 148 N.M. 6 804, 242 P.3d 371 (alterations, internal quotation marks, and citation omitted). “[O]n 7 appeal, the party must specifically point out where, in the record, the party invoked 8 the court’s ruling on the issue. Absent th at citation to the record or any obvious 9 preservation, we will not consider the issue.” Crutchfield v. N.M. Dep’t of Taxation 10 & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273; see Rule 12- 11 213(A)(4) NMRA (requiring appellant to includein the brief in chief “a statement 12 explaining how the issue was preserved in the court below”). 13 {13} The record at trial contains no eviden ce of any argument that the offer of re14 employment was contested under Rule 11- 408, or preserved by Plaintiff below. 15 Likewise, the trial record further demons trates that Plaintiff did not present an 16 argument that the WCJ’s rejection of the re-employment offer wa s relevant to show 17 the timing of the offer of re-employment. See Graham v. Cocherell, 1987-NMCA18 013, ¶ 16, 105 N.M. 401, 733 P.2d 370 (“[W]e ar e a court of review and are limited 198 to a review of the questions that have b een presented to and ruled on by the [district] 1 court.). While Plaintiff did make all of th ese arguments in her written post-trial reply 2 that was filed in support of her motion for new trial, “[g]enerally, a motion for a new 3 trial cannot be used to preserve issues not otherwise raised during the proceedings.” 4 Sandoval v. Baker Hughes Oilfield Operations, Inc. , 2009-NMCA-095, ¶ 56, 146 5 N.M. 853, 215 P.3d 791. Plaintiff has failed to identify any portion of the trial 6 proceedings where these evid entiary arguments were madeor preserved. Therefore, 7 we will not address these evidentiary arguments for the first time on appeal. 8 {14} We now move to the merits of Plaintiff’s preserved arguments—that she was 9 unduly prejudiced by the district court’s exclusion of evidence pertaining to the 10 WCJ’s rejection of the City’s offer of re-employment. 11 B. No Abuse of Discretion Occurred byExcluding Evidence of the WCJ’s 12 Rejection of the City’s Offer of Re-Employment 13 {15} “Admission or exclusion of evidence is a matter within the discretion of the 14 [district] court, and the court’s [evidentiary] determination[s] will [be upheld unless 15 there is a] clear abuse of that discretion.” Coates v. Wal-Mart Stores, Inc. , 16 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P. 2d 999 (internal quotation marks and 17 citation omitted). “An abuse of discretion occurs when a ruling is clearly contrary to 18 the logical conclusions demanded by the facts and circumstances of the case.” Sims 19 v. Sims , 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. 209 {16} As stated above, whether the City’s offer of re-employment was properly 1 admitted as evidence of a timely offer to accommodate Plaintiff’s disability is not 2 challenged on appeal. See generally§ 28-1-7(J) (making it unlawful and a 3 discriminatory practice for an employer to fail to make an accommodation for a 4 person’s physical or mental handicap unless the accommodation proves to be 5 unreasonable or an undue hardship on the employer). The only issue before us is 6 whether the district court erred in excluding Plaintiff’s request to present evidence that 7 the offer of re-employment was rejected by the WCJ. 8 {17} Evidence is relevant if it tends to make a fact in issue more or less probable. See 9 Rule 11-401 NMRA. All relevant ev idence is generally admissible. See Rule 11-402. 10 However, “[t]he court may ex clude . . . evidence if its pr obative value is substantially 11 outweighed by [the] danger of . . . unfair prejudice, confusing the issues, misleading 12 the jury, undue delay, wasting time, or n eedless presenting [of] cumulative evidence.” 13 Rule 11-403. “Because a determination of unfair prejudice is fact sensitive, much 14 leeway is given trial judges who must fairly weigh probative value against probable 15 dangers.” State v. Otto , 2007-NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8 (internal 16 quotation marks and citation omitted); Coates , 1999-NMSC-013, ¶ 36 (stating that the 17 exclusion of evidence is reviewed for an abuse of discretion). “[T]he complaining 18 party on appeal must show the erroneous admission [or] exclusion of evidence was 1910 prejudicial in order to obtain a reversal.” Cumming v. Nielson’s, Inc. , 1 1988-NMCA-095, ¶ 28, 108 N.M. 198, 769 P.2d 732. 2 {18} Plaintiff argues that the order of the WCJ rejecting the City’s offer of re3 employment was relevant becau se it explained why Plaintiff also rejected the offer. 4 Logically, this theory of relevancy woul d require evidence th at the WCJ’s order 5 preceded Plaintiff’s rejection of the City’s offer. The record before us discloses no 6 such evidence. To the contrary, Plaintiff appears to havecommunicated her rejection 7 of the offer just two days af ter the City presented the offer to her. Additionally, there 8 is no evidence in the record, and Plaintiff points to none in her briefing, as to the 9 timing of the WCJ’s order. We will not specu late regarding the timing of this order 10 and without such evidence, the conditional basis for Plaintiff’s claim of relevance 11 fails. See Rule 11-104(B) NMRA (addressing the admission of evidence, the 12 relevancy of which is conditional); see also First Nat’l Bank v. Abraham , 1982- 13 NMSC-006, ¶ 9, 97 N.M. 288, 639 P.2d 575 (“[T ]he [district] court will be upheld if 14 it is right for any reason.”); Chan v. Montoya , 2011-NMCA-072, ¶ 9, 150 N.M. 44, 15 256 P.3d 987 (stating that “[i]t is not [the] practice [of the appellate court] to rely on 16 assertions of counsel unaccompanied by support in the record. The mere assertions 17 and arguments of counsel are not evidence”(internal quotation marks and citation 18 omitted)); Sandoval , 2009-NMCA-095, ¶ 65 (stating that if the record is deficient, we 1911 will indulge every presumption in support of the district court’s judgment). As such, 1 we hold that the district court did not abuse its discretion. 2 II. PERA Disability Pension 3 {19} Once again, we emphasize the issues thatare not before us. We are not asked 4 to decide whether evidence of an empl oyee’s application and approval for a PERA 5 disability pension is relevant to the issue of mitigation of damages. Instead, Plaintiff 6 argues that the district court committed revers ible error in allowing the City to present 7 its evidence that Plaintiff was approve d for a PERA disability pension while 8 simultaneously excluding evidence that her disability pension application was a part 9 of the parties’ 2011 settlement agreement th at was subsequently rejected by the WCJ. 10 Our review is limited accordingly. 11 {20} Plaintiff makes four arguments in support of her position. First, Plaintiff argues 12 that the settlement agreement and subseque nt rejection by the WC J were relevant to 13 show that she could not have accepted the PERA disability pension. Second, Plaintiff 14 argues that the City “opened the door” to a full disclosure of the settlement agreement 15 in its case in chief. Third, Plaintiff argues that the settlement agreement should have 16 been admitted pursuant to Rule 11-408 and Rule 11-106 NMRA. Fourth, Plaintiff 17 asserts that the settlement agreement was relevant to the timing of the offer of 1812 disability retirement. We construe Plaintiff’s final arguments to assert that the district 1 court violated Rule 11-402. 2 A. Preservation 3 {21} The City claims that Plaintiff preserve d only the first two of the four arguments 4 listed above. We agree with the City. To preserve an argument Plaintiff must have 5 invoked a ruling of the district court on th e same grounds argued before this Court on 6 appeal. See Vill. of Angel Fire , 2010-NMCA-038, ¶ 15 (recognizing that evidentiary 7 arguments that were not presented to th e district court will not be addressed on 8 appeal). In our review of th e record, Plaintiff did not argue below that either Rule 11- 9 408 or Rule 11-106 mandated the admission of the settlement agreement. 10 Furthermore, Plaintiff failed to argue thatthe timing of her PERA application was 11 relevant or otherwise not apparent without the admission of the settlement agreement. 12 As a result, this Court will not address the two arguments that were not made or 13 preserved in the district court. 14 B. No Abuse of Discretion Occurred byExcluding Evidence of the Parties’ 15 Settlement Agreement 16 {22} We review the two remaining evidentiaryrulings for an abuse of discretion. See 17 Coates, 1999-NMSC-013, ¶ 36. A party opens th e door to the admission of evidence 18 when it makes a statement that cause s the evidence to become relevant. See id . ¶ 38. 19 The City presented evidence of Plaintiff’s PERA application and approval through the 2013 testimony of a witness employed by PERA. The witness testif ied generally about 1 PERA’s disability pension, including the re quirements and review process, as well as 2 the fact that Plaintiff had applied for bene fits and been approved. The witness did not 3 reference the settlement agreement or any relationship to the settlement agreement in 4 any way during this testimony. Evidence of the separate settlement agreement may 5 properly be regarded as evidence of a collateral matter, the exclusion of which was 6 within the district court’s discretion. See State v. Montoya , 1981-NMCA-021, ¶ 21, 7 95 N.M. 433, 622 P.2d 1053 (“Evidence as to collateral matters is within the [district] 8 court’s discretionary contro l.”). Under the circumstances , we are not persuaded that 9 the City “opened the door” to the admissi bility of any collateral evidence of the 10 settlement agreement based upon this testimony. 11 {23} As to Plaintiff’s second argument, we again emphasize that we are not deciding 12 whether evidence of an employee’s app lication and approval for PERA disability 13 pension is relevant on the issue of mitig ation of damages. Because Plaintiff did not 14 challenge this underlying premise in the di strict court and does not challenge it on 15 appeal, we must proceed under the assumpti on that the pension application evidence 16 was relevant to the issue of mitigation of damages. See State ex rel. Human Servs. 17 Dep’t v. Staples (In re Doe ), 1982-NMSC-099, ¶¶ 3, 5, 98 N.M. 540, 650 P.2d 824 18 (stating that “courts risk overlooking important facts or legal considerations when they 1914 take it upon themselves to raise, argue, and decide legal ques tions overlooked by the 1 lawyers who tailor the case to fit within their legal theori es” and declining to consider 2 an argument because it was not raised by th e appellants (alteration, internal quotation 3 marks, and citation omitted)). Given this premise, we are left to decide whether 4 Plaintiff’s belief that she could not accept the pension benefit because the settlement 5 agreement was later rejected by the WCJ wa s also relevant and its exclusion was 6 reversible error. 7 {24} Plaintiff does not point to any evidence, rule of law, or other authority to 8 support her argument. We are not presented w ith anything that coul d be said to bind 9 PERA, as an independent third party, to the settlement agreement or to the decision 10 of the WCJ. There is no evidence that PERAwas a party to the settlement agreement 11 or that the approval of Plaintiff’s PERAapplication was otherwise contingent upon 12 the WCJ’s approval of the settlement agreemen t. Further, there is no evidence in the 13 record that the City misledPlaintiff in any way into believing that she was precluded 14 from accepting the PERA disability pensi on. As such, we must presume that 15 Plaintiff’s belief regarding the WCJ’s approval of the settlement agreement was both 16 erroneous and unfounded. Sandoval , 2009-NMCA-095, ¶ 65 (stating that if the record 17 is deficient, we will indulge every presumption in support of the district court’s 18 judgment). Given that we further accept the unchallenged proposition that Plaintiff 1915 was required to mitigate her damages by accepting the PERA disability pension 1 benefit, Plaintiff’s erroneous and unfounde d belief that she was precluded from doing 2 so does not alter or extinguish Plaintiff’s responsibility to mitigate her damages. Cf. 3 Bd. of Educ. of Alamogordo Pub. Sch. Dist. No. 1 v. Jennings , 1985-NMSC-054, ¶ 20, 4 102 N.M. 762, 701 P.2d 361 (holding that public school teachers alleging wrongful 5 discharge have a statutory duty to ex ercise “reasonable diligence” to mitigate 6 damages). It logically follows that any evidence supporting the existence of this 7 mistaken belief regarding the provisions of the settlement agreement and the WCJ’s 8 subsequent rejection of the settlement ag reement would, at best, be collaterally 9 relevant to Plaintiff’s duty to mitigate her damages. SeeRule 11-401 (stating that 10 evidence is relevant if it makes a fact at issue more or less probable). As we 11 recognized above, Plaintiff failed to establish the collateral relevance of this rejection 12 by the WCJ. See id . As such, we hold that it was not an abuse of di scretion for the 13 district court to exclude Plaintiff’s evid ence regarding the settlement agreement and 14 its rejection by the WCJ. 15 CONCLUSION 16 {25} For the foregoing reasons, the district court’s judgment is affirmed. 17 {26} IT IS SO ORDERED. 18

__________________________________ 19 TIMOTHY L. GARCIA, Judge 2016 WE CONCUR: 1

_______________________________ 2 M. MONICA ZAMORA, Judge 3

_______________________________ 4 J. MILES HANISEE, Judge 5