This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 MELINDA McPEEK and 7 GREG SHUMAN, 8 Plaintiffs-Appellants, 9

v. NO. 27,424 10 THE HUBBARD MUSEUM, 11 a foreign corporation, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 14 Karen L. Parsons, District Judge 15 Daniel M. Faber 16 Albuquerque, NM 17 for Appellants 18 Billy R. Blackburn 19 Albuquerque, NM 20 for Appellee 21 Judge, Kostura & Putman, P.C. 22 John Judge 23 Austin, TX 24 National Employment Lawyers Association 25 Stefano Mescato, NELA Program Director 26 San Francisco, CA 272 for Amicus Curiae 1 National Employment Lawyers Association 23 MEMORANDUM OPINION 1 FRY, Chief Judge. 2 Plaintiffs Melinda McPeek and Greg Shuman appeal from an order granting 3 summary judgment in favor of Defendant Hubbard Museum, their former employer. 4 Plaintiffs sued Defendant fo r retaliatory discharge, claiming that Defendant fired them 5 in violation of public policy when it terminated Plaintiffs’ employment based on its 6 belief that Plaintiffs had reported to a st ate official that Defendant had committed an 7 act of fraud against the state. The district court determined that Plaintiffs could not 8 establish their claims for retaliatory di scharge and entered summary judgment for 9 Defendant. We affirm. 10 BACKGROUND 11 Defendant is the Hubbard Museum, a nonprofit corporation that once owned 12 the Hubbard Museum of the American We st in Ruidoso Downs, New Mexico, along 13 with other historic propertie s in Lincoln County. Plai ntiff Shuman was employed by 14 Defendant as director of exhibits, and then , for one month prior to his termination, as 15 the acting director of the Hubbard Museum of the American West . Plaintiff McPeek 16 was employed by Defendant as its curator of collections. 17 In early 2004, the state apparently aske d if it might be able to acquire the 18 Hubbard Museum of the American West and certain of Defendant’s historic 194 properties. Representatives of Defendant and the state entered into discussions about 1 the possibility that Defendant would make a gift to the state of these assets. The 2 discussions resulted in a letter of intent , signed July 7, 2004, which included the 3 following terms: 4 The Museum proposes to gift the great er part of its real and personal 5 property to the State. 6

. . . . 7 Some items will be excluded, principally those associat ed with the “Race 8 Horse Hall of Fame[.]” A complete inventory of all items to be gifted 9 will be developed through a final agreement (Agreement) reached 10 between the Hubbard Museum and th e State’s Department of Cultural 11 Affairs. 12

. . . . 13 All terms and conditions of the proposedtransaction will be stated in the 14 Agreement to be negotiated, agreed and executed by the [p]arties. 15

. . . . 16 Neither party intends to be bound by any oral or written statements or 17 correspondence concerning the Agreement arising during the course of 18 negotiations, notwithstanding that the same may be expressed in terms 19 signifying a partial, preliminary, or interim agreement between the 20 Parties. 21 In October 2004, Jean Stoddard, the then-acting director of the Museum of the 22 American West, told Plaintiffs that R.D. Hubbard, the museum’s president, did not 23 want three significant pieces in the collec tion to be given to the state because he 245 wanted to keep them. These were two paintings by Frederic Remington and a bronze 1 sculpture by C.M. Russell, which together were valued at approximately three million 2 dollars. These three pieces belonged to a part of Defendant’s collection called the 3 Anne C. Stradling collection. Plainti ffs informed Stoddard that the Stradling 4 Foundation prohibited the withdrawal of th ese three pieces from the collection and 5 that such withdrawal would constitute a violation of the American Association of 6 Museums’ code of ethics. In response to Plaintiffs’ concerns, Defendant decided to 7 deaccession the three pieces. Defendant followe d Plaintiff Shuman’s instructions for 8 doing so, and the deaccessioning process thatwas ultimately follo wed was apparently 9 in accordance with the code of ethics. 10 In the meantime, however, Plaintiff McP eek had grown concerned that the state 11 might not be aware that th e three pieces had been deacce ssioned and would therefore 12 not be part of the gift. In January 2005, McPeek contacted Maureen Russell, the head 13 conservator of what the partie s refer to as the “State Museum,” to inform her that the 14 three pieces had been deaccessioned. Russe ll asked McPeek to fax her Defendant’s 15 internal memos and documents relating tothe deaccessioning, which McPeek did. 16 In January 2005, Defendant gave the state an inventory of items to be included 17 in the proposed gift. That inventory, the only one ever provided to the state, did not 18 include the three deaccessioned works. After receiving the inventory, Stuart Ashman, 196 the state’s director of cultural affairs, c ontacted Stoddard about its contents. Stoddard 1 informed Ashman that the two Remington paintings and the Russell sculpture had 2 been deaccessioned. On February 7, 2005, the state told Defendant that it would not 3 accept the gift. Defendant fire d Shuman that same day. Defendant fired McPeek on 4 February 21, 2005. 5 Plaintiffs sued for retaliatory discharge, alleging that Defendant fired them 6 based on Defendant’s belief that both Plaintiffs were involved in informing the state 7 about the deaccessioning of the three works of art. Plaintiffs alleged that McPeek’s 8 act (and Shuman’s supposed act) of discussi ng the matter with the state was supported 9 by a public policy that encourages citizens to report fraud to the state. Following 10 discovery, Defendant moved for summary judgment. The district court granted the 11 motion and denied Plaintiffs’ motion to reconsider. It noted that Plaintiffs’ claim was 12 based on the public policy expressed in Garrity v. Overland Sheepskin Co. , 1996- 13 NMSC-032, ¶ 17, 121 N.M. 710, 917 P.2d 1382, that an employer may not terminate 14 an employee who in good faith and withprobable cause reports crime in the 15 workplace. The district court concluded th at McPeek did not have probable cause to 16 believe that Defendant had committed or intended to commit fraud against the state 17 when she made her report to Ru ssell. As a result, her report to the state that the three 18 artworks had been deaccessioned was not a protected act under Garrity . The basis of 197 Shuman’s claim was that Defendant fired him due to its belief that he engaged in the 1 same conduct as McPeek. As a result, the district court also determined that Shuman 2 could not prevail on his claim for retaliatory discharge. Plaintiffs appeal. 3 DISCUSSION 4 An appellate court reviews the granti ng of a motion for summary judgment de 5

novo. Beggs v. City of Portales , 2009-NMSC-023, ¶ 10, 146 N.M. 372, 210 P.3d 798. 6 “Summary judgment is appropriate where there are no genuine issues of material fact 7 and the movant is entitled to judgment as a matter of law.” Tafoya v. Rael , 8 2008-NMSC-057, ¶ 11, 145 N.M. 4, 193 P.3d 551 (internal quotation marks and 9 citation omitted). 10 Plaintiffs were at-will employees, and as a general rule, employment at will can 11 be terminated by either the employer or the employee for any reason or for no reason 12 at all. See Trujillo v. N. Rio Arriba Elec. Coop., Inc. , 2002-NMSC-004, ¶ 22, 131 13 N.M. 607, 41 P.3d 333 (filed 2001). A retaliato ry discharge action provides a “narrow 14 exception to the terminable at -will rule” when an employee is terminated in violation 15 of public policy. Silva v. Albuquerque Assembly & Distrib. Freeport Warehouse 16 Corp. , 106 N.M. 19, 21, 738 P.2d 513, 515 (1987). In order to establish a claim for 17 retaliatory discharge, an employee must demonstrate that (1) the employee was 18 discharged because she or he performed anact that public policy has authorized or 198 encouraged, or refused to perform an act that public policy would prohibit; (2) the 1 employer either knew or suspected thatthe employee’s act involved a protected 2 activity; (3) there was a causal connection between the employee’s protected actions 3 and the employer’s act of discharging her or him; and (4) the employee suffered 4 damages. Weidler v. Big J Enters. Inc. , 1998-NMCA-021, ¶ 23, 124 N.M. 591, 953 5 P.2d 1089 (filed 1997). 6 With respect to the first requirement , this Court has st ated: “A general 7 allegation that the discharge contravened public policy is insufficient; to state a cause 8 of action for retaliatory or abusive disc harge the employee must identify a specific 9 expression of public policy.” Vigil v. Arzola , 102 N.M. 682, 690, 699 P.2d 613, 621 10 (Ct. App. 1983), rev’d on other grounds , 101 N.M. 687, 687 P.2d 1038 (1984), 11 overruled in part on other grounds by Chavez v. Manville Prods. Corp. , 108 N.M. 12 643, 649, 777 P.2d 371, 377 (1989). In Vigil , we explained that in New Mexico the 13 “specific expression of public policy” prohibiting an employer from firing an 14 employee may be found in four kinds of legisl ative or judicial statements: The first 15 is in statutes, such as the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 16 through -15 (1969, as amended through 2007), th at provide both that an employer may 17 not terminate employees on particular grounds and a remedy in the event of such 18 termination. See Vigil , 102 N.M. at 688-89, 699 P.2d at 619-20. The second is in 199 statutes, such as NMSA 1978, Section 1- 20-13 (1969) (stating that an employer may 1 not fire an employee “because of the empl oyee’s political opinions”), that prohibit an 2 employer from firing an employee on specifi ed grounds but do not provide a specific 3 remedy for an employee who ha s been so terminated. See Vigil , 102 N.M. at 689, 699 4 P.2d at 620. The third is when a statute defines a public policy that governs the 5 employee’s conduct but does not provide the employee with either a right not to be 6 terminated in violation of that policy or a remedy for such termination, in which case 7 the employee must seek judicial recogn ition of both the right and the remedy. See id. 8 An example of this third type is when an employer fires an employee for refusing to 9 violate a criminal law: The policy is found in the law prohibiting the employee from 10 engaging in the conduct, and the judiciary must recognize an employee’s right not to 11 be fired for obeying the law and a remedy for the termination. See id. (citing 12 examples of termination when an employee refuses to commit perjury or engage in 13 price fixing). The fourth type of expre ssion of public policy is when there is no 14 legislative enactment at all that directlyaddresses the employee’s conduct, but the 15 judiciary determines that, ba sed on other relevant statutes or an implicit public policy, 16 both a right and a remedy should be recognized. See id . An example of this type is 17 when an employer fires an employee for reporting another employee’s illegal 18 activities: There is no legislative enactme nt directly governing the act of reporting 1910 such conduct, but a number of courts haverecognized a public policy that encourages 1 employees to do so, based on the statutes prohibiting the illegal conduct itself. See id

. 2 (citing an example of termination for reporting another employee’s act of theft). 3 The parties appear to agree that the public policy at issu e here is the fourth type 4 because Plaintiffs allege that their termination resulted from their participation in 5 “blowing the whistle” on Defendant’s alle ged fraudulent conduct vis-a-vis the state. 6 The district court granted summary judgment on the ground that Plaintiffs did not 7 have probable cause to believe that De fendant was engaged in fraudulent conduct. 8 However, we need not follow the districtcourt down that analytical path and 9 undertake the thorny consideration of what constitutes probable cause in the context 10 of retaliatory discharge claims. We can affirm the district court on an alternative basis 11 so long as it would not be unfair toPlaintiffs for us to do so. See Meiboom v. Watson , 12 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (explaining that an appellate 13 court may affirm a trial court’s ruling on a ground that was not relie d below if reliance 14 on the new ground would not be unfair to the appellant). 15 Even if we assume that a plaintiff’s probable cause to believe a crime has been 16 committed is a prerequisite to a retaliatory discharge claim, there is no evidence in the 17 record before us that Defendant engage d in any wrongdoing that would give rise to 18 a probable cause analysis. The undisputed facts establish the following. Defendant 1911 and the state executed a letter of intent memo rializing Defendant’s desire to gift “the 1 greater part of its real and personal property” to the state. The letter stated that 2 “[s]ome items will be excluded” and that “[ a] complete inventory of all items to be 3 gifted will be developed through a final ag reement.” Before a final agreement was 4 presented to the state, Mr. Hubbard, the president of Defendant, decided that he did 5 not want to include the two Remington pain tings and the Russell sculpture in the gift 6 to the state. No one affiliated with Defendant ever repres ented to the state that these 7 three pieces would not be among the excluded items or that they would affirmatively 8 be part of the gift. No one affiliated w ith Defendant ever provided to the state an 9 inventory that included the three pieces. Nonetheless, even though Defendant had not 10 made any representation to the state about the specific pieces that would be included 11 in the gift, Plaintiff McPeek told the state’s head conservator that the three pieces had 12 been deaccessioned. Although Defendant drafted and signed an agreement of 13 declaration and acceptance of gi ft, there is no evidence that the state ever executed the 14 agreement. The state ultimately told Defendant that it was no longer interested in the 15 gift. 16 Taken together, these undisputed facts establish only that Defendant and the 17 state were engaged in pre liminary negotiations for an agreement that would set out 18 the terms of a gift from Defendant to the stat e. No agreement was ever reached. It is 1912 entirely possible or even likely that the state elected not to enter into the agreement 1 because the three pieces were not to be incl uded in the gifted prope rty. Be that as it 2 may, the hopes and desires of neither the state nor Defe ndant came to fruition in an 3 agreement of any sort. We fail to understand why public policy would or should 4 encourage Plaintiffs’ actions, which sought to disclose nothing more than an alleged 5 flaw in negotiations that never resulted in an agreement. See Vigil , 102 N.M. at 689, 6 699 P.2d at 620 (explaining that an employee seeking to recover for retaliatory 7 discharge “must demons trate that he was discharged b ecause he performed an act that 8 public policy has authorized or would en courage, or because he refused to do 9 something required of him by his employer that public policy would condemn”). 10 Furthermore, the inventory Defendant presente d to the state made it clear that the three 11 pieces were not to be included in the gift. Therefore, Plaintiffs’ “disclosures” to the 12 state were entirely premature. 13 Our conclusion is consistent with Ne w Mexico law, which establishes that 14 “mere wrongdoing on the part of the employer, without a sufficient public policy 15 nexus, is insufficient to state a claim.” Maxwell v. Ross Hyden Motors, Inc. , 104 N.M. 16 470, 473, 722 P.2d 1192, 1195 (Ct. App. 1986). Inthe present case, Plaintiffs failed 17 to establish a prima facie case that Defendant had engaged in any wrongdoing at all. 18 In the absence of wrongful conduct, we cannot say that public policy would encourage 1913 Plaintiffs’ reporting of Defendant’s actions . Moreover, allowing Plaintiffs’ claim to 1 proceed under these circumstances would unduly broaden the retaliatory discharge 2 exception to at-will employment. At-will empl oyment remains the rule in the absence 3 of an employment contract, and retaliatory discharge is a limited exception to that rule. 4 See id. (stating that Vigil“simply adopted a limited public policy exception” to the at5 will rule (internal quotation marks omitted )). The purpose of the exception “is job 6 security, not reparation for every conceivable ill.” Silva v. Am. Fed’n of State, County 7 & Mun. Employees , 2001-NMSC-038, ¶ 11, 131 N.M. 364, 37 P.3d 81 (internal 8 quotation marks and citation omitted). 9 Although our analysis departs somewhat from the district court’s reliance on 10 the absence of probable cause, it is not unf air to Plaintiffs because the parties 11 submitted arguments in the district court on the issue of whether Plaintiffs’ actions 12 were of the sort that public policy would en courage. We conclude that the district 13 court properly granted Defendant’s motion for summary judgment. 14 CONCLUSION 15 For the foregoing reasons, we affirm the district court’s judgment in favor of 16 Defendant. 1714 IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Chief Judge 3 WE CONCUR: 4

5 MICHAEL D. BUSTAMANTE, Judge 6

7 TIMOTHY L. GARCIA, Judge 8