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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40070

ERIN O. ANDERSON,

Plaintiff-Appellant,

v.

SECOND JUDICIAL 

DISTRICT COURT,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Francis J. Mathew, District Court Judge

Michelle Garcia

Santa Fe, NM

for Appellant

Macke Law & Policy, LLC

Daniel J. Macke

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

BOGARDUS, Judge.

{1} Erin Anderson (Plaintiff) appeals the district court’s order granting summary 

judgment in favor of the Second Judicial District Court (Defendant) dismissing her claim 

of retaliation under the Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 

to -6 (2010). Plaintiff argues that the district court (1) did not have jurisdiction to hear the 

case because the Second Judicial District was an improper venue, (2) failed to compel 

Defendant’s discovery responses which would have provided genuine issues of material 

fact, and (3) erred in granting summary judgment. For the following reasons, we affirm.
BACKGROUND

{2} In 2013 Defendant executed a memorandum of understanding (MOU) with the 

Office of the New Mexico Attorney General (NMAG). The MOU provided a grant to 

operate a joint pilot project called the Foreclosure Settlement Program (FSP) later to be 

renamed the Mortgage Alternative Program (MAP),1 which was “designed to provide 

early court intervention in residential owner occupied mortgage foreclosure cases.” The 

MOU further specified that the pilot project would operate in both the Thirteenth Judicial 

District and the Second Judicial District under the same terms. Under these terms, 

Defendant would receive a $350,000 funding block for the project. The MOU required 

that one personnel member serve as a project manager and one personnel member be 

classified as either a settlement facilitator, hearing officer, or special master. The MOU 

also required that any remaining funds existing when the grant expired be reverted to 

the NMAG. 

{3} The MOU was amended twice, extending the length of the program such that it 

would terminate either on June 30, 2016, or when the funds were exhausted, whichever 

happened first. Despite the extension of the program’s operational dates, the NMAG 

never provided additional funding to the project. 

{4} Plaintiff was hired by Defendant as a senior attorney to serve as the settlement 

facilitator and manager of MAP. The position was a full time position for the term of the 

MOU. Plaintiff was classified and paid in accordance with the manager position. 

However, one of her employees informed her that both the employee and Plaintiff were 

classified differently and were being paid less than their respective male counterparts in 

the Thirteenth Judicial District. 

{5} Plaintiff reported the pay discrepancy to both the district court judge supervising 

MAP, and Defendant’s court executive officer. In response, the executive officer stated 

that Plaintiff’s rate of pay was “based on objective considerations applied to [her] at the 

time of [her] hire,” consistent with her classification as attorney-senior, and “not genderbased in any way.” When no further action was taken, Plaintiff filed a complaint with the 

Human Rights Bureau and the Equal Employment Opportunity Commission (EEOC), 

which lead to mandatory mediation facilitated by the EEOC. As a result of the 

mediation, Defendant reclassified Plaintiff as a Term Special Commissioner and 

increased her rate of pay, effective from her date of hire, and paid her back pay. 

Defendant also reclassified and increased the pay of the other MAP employees. 

{6} In a letter dated November 10, 2015, to Plaintiff from the court executive officer 

for the Second Judicial District Court, Plaintiff learned that her position would end at the 

 

1FSP or the Foreclosure Settlement Program was renamed MAP or the Mortgage Alternative Program in 

the Second Judicial District. It was referred to as MAP until the program ended in 2015. During that time, 

MAP’s counterpart in the Thirteenth Judicial District was still referred to as FSP. When the Second 

Judicial District’s Foreclosure Settlement Program restarted in July of 2016, the name reverted back to 

FSP. We use MAP to refer to the program and its employees while Plaintiff worked there. We use FSP to 

refer to the program in the Thirteenth Judicial District and to the restarted program after MAP ended.
end of November 2015, when MAP grant funds would be exhausted. All other MAP 

positions were also eliminated. Plaintiff then received her back pay in January 2016. Six 

months after MAP ended, the FSP restarted when funding from the New Mexico State 

Bar became available. Plaintiff applied for an independent contractor position with the 

restarted FSP, but was neither interviewed nor rehired. Although the other MAP 

employees who sought reemployment with the court were rehired to other divisions, no 

former MAP employees were rehired into the restarted FSP. 

{7} Plaintiff then filed a complaint alleging that Defendant violated the WPA by 

purposefully exhausting the grant which funded Plaintiff’s position and by refusing to 

rehire her under the restructured FSP program in retaliation for her communication of 

the pay disparity between Second Judicial District MAP employees and Thirteenth 

Judicial District FSP employees. Defendant moved for summary judgment and the 

district court granted the motion finding that Defendant had made a prima facie showing 

that it did not violate the WPA and Plaintiff failed to rebut this showing. The district court 

granted Defendant’s motion and Plaintiff appealed. 

DISCUSSION

I. Venue Was Proper in District Court

{8} We first address Plaintiff’s contention that the Second Judicial District lacked 

jurisdiction to hear this case. Plaintiff asserts that it was a “jurisdictional error” to allow 

the case to be heard in the Second Judicial District when it was a party to the case. 

However, Plaintiff’s challenge to jurisdiction is actually a challenge to venue in the 

district court. We disagree.

{9} “Although venue has sometimes been treated as jurisdictional in nature . . . the 

two concepts must be distinguished. Venue . . . means the place where a case is to be 

tried, whereas jurisdiction does not refer to the place of trial, but to the power of the 

court to hear and determine the case.” Kalosha v. Novick, 1973-NMSC-010, ¶ 13, 84 

N.M. 502, 505 P.2d 845 (internal quotation marks and citation omitted). Matters of 

venue can be waived, id. ¶¶ 15, 16, unlike subject matter jurisdiction, see Cheng v. 

Rabey, 2023-NMCA-013, ¶ 9, 525 P.3d 405 (“It is well settled that subject matter 

jurisdiction cannot be waived and may be raised for the first time on appeal.” (internal 

quotation marks and citation omitted)). 

{10} Plaintiff failed to appeal the First Judicial District Court’s order dismissing her 

case for improper venue despite it being a final order, see Sunwest Bank of 

Albuquerque, 1998-NMSC-012, ¶ 9, 125 N.M. 170, 958 P.2d 740 (stating that “dismissal 

without prejudice for improper venue is a final, appealable order”), with an immediate 

right of appeal. See Heron v. Gaylor, 1948-NMSC-072, ¶ 11, 53 N.M. 44, 201 P.2d 366 

(“The right to have a cause heard in the court of the proper venue may be lost unless 

seasonably asserted; and in that event, the court of trial having jurisdiction but not the 

proper venue may render a judgment binding on the parties.” (internal quotation marks 

and citation omitted)); Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-
095, ¶ 56, 146 N.M. 853, 215 P.3d 791 (“In order to preserve an issue for appeal, [an 

appellant] must have made a timely and specific objection that apprised the district court 

of the nature of the claimed error and that allows the district court to make an intelligent 

ruling thereon.”). Thus, we conclude Plaintiff waived her objection and the case was 

properly before the district court. 

II. The District Court Did Not Err in Granting Summary Judgment Without 

Addressing Plaintiff’s Outstanding Motion to Compel Discovery

{11} Plaintiff claims that further discovery would have led to discovery of genuine 

issues of material fact. She therefore contends the district court erred by failing to 

address her outstanding motion to compel before granting summary judgment. We 

disagree. 

{12} Although it is true that “it is generally inadvisable to grant summary judgment 

before discovery has been completed,” Sandel v. Sandel, 2020-NMCA-025, ¶ 30, 463 

P.3d 510 (alteration, internal quotation marks, and citation omitted), a stay of summary 

judgment before discovery is completed is not automatic. See Romero v. Giant Stop-NGo of N.M., Inc., 2009-NMCA-059, ¶ 18, 146 N.M. 520, 212 P.3d 408 (stating that a 

party must submit an affidavit pursuant to Rule 1-056(F) NMRA to stay summary 

judgment). Instead, a party responding to a motion for summary judgment must follow 

the mechanism laid out in Rule 1-056(F). Under Rule 1-056(F), a district court may 

refuse a party’s request to postpone summary judgment if the party does not “submit an 

affidavit explaining why additional time and discovery are needed.” Butler v. Deutsche 

Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532; see also 

Rule 1-056(F) (discussing the district court’s discretion). The movant must “demonstrate 

how postponement of a ruling on the motion will enable [them], by discovery or other 

means, to rebut the movant’s showing of the absence of a genuine issue of fact.” Butler,

2006-NMCA-084, ¶ 38 (internal quotation marks and citation omitted); see Rule 1-

056(F). The affidavit “must contain more than conclusory statements about the need for 

[additional] discovery.” Butler, 2006-NMCA-084, ¶ 38. Here, Plaintiff never filed such a

pleading, nor did she explain at the hearing how additional discovery would enable her 

“to rebut the movant’s showing of the absence of a genuine issue of fact.” See Romero, 

2009-NMCA-059, ¶ 18 (internal quotation marks and citation omitted). As such, we see 

no abuse of discretion under these circumstances. 

III. The District Court Did Not Err in Granting Summary Judgment 

{13} We now turn to Plaintiff’s remaining arguments that the district court erred in 

granting summary judgment. Plaintiff first contends the district court failed to recognize 

that she established genuine issues of material fact in support of her claim that the 

exhaustion of the grant funding her position was retaliatory. Second, Plaintiff argues that 

the district court erred in determining as a matter of law that Plaintiff was not protected 

under the WPA when she sought to be rehired because she was no longer an employee 

as defined by the act. Again, we disagree. 
{14} Because this matter was decided by summary judgment, our review is de novo. 

Romero v. Phillip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. In so 

doing, we construe all reasonable inferences in favor of the nonmoving party. Id. We 

have long noted that “[s]ummary judgment is appropriate where there are no genuine 

issues of material fact and the movant is entitled to judgment as a matter of law.” Bank 

of N.Y. Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443 (internal quotation marks 

and citation omitted). To establish this, “[t]he movant need only make a prima facie 

showing that [they are] entitled to summary judgment.” Roth v. Thompson, 1992-NMSC011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. Once the movant has done so, “the burden 

shifts to the party opposing the motion to demonstrate the existence of specific 

evidentiary facts which would require trial on the merits.” Id. “A party may not simply 

argue that such [evidentiary] facts might exist, nor may it rest upon the allegations of the 

complaint.” Dow v. Chilili Co-op. Ass’n, 1986-NMSC-084, ¶ 13, 105 N.M. 52, 728 P.2d 

462. Rather, “the party opposing the summary judgment motion must adduce evidence 

to justify a trial on the issues. Such evidence adduced must result in reasonable 

inferences.” Romero, 2010-NMSC-035, ¶ 10 (internal quotation marks and citation 

omitted). If the nonmovant fails to rebut the movant’s prima facie showing with such 

evidence, summary judgment is appropriate. 

A. No Evidence Exhaustion of the Grant Was Retaliatory

{15} First, we address Plaintiff’s contention that she established genuine issues of 

material fact showing that exhaustion of the grant funding her position was retaliatory. 

Because Defendant made a prima facie showing that exhaustion of the grant was not 

retaliatory and Plaintiff fails to cite to evidence in the record that rebuts this prima facie 

showing, we conclude summary judgment was appropriate. 

{16} 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 unlawful or improper act.” Section 10-16C-3(A). Nevertheless, 

an employer has an affirmative defense to a WPA claim if the action taken by the 

employer against the employee was for a “legitimate business purpose unrelated to 

conduct prohibited pursuant to the [WPA] and that retaliatory action was not a 

motivating factor” for Defendant’s action against Plaintiff. See § 10-16C-4(B); UJI 13-

2325 NMRA. “A motivating factor is a factor that plays a role in an employer’s decision 

to act” and need not be the only, last, or latest reason for the employer’s action. UJI 13-

2324 NMRA. 

{17} Here, Defendant made a prima facie showing that the dissolution of MAP, and 

with it the termination of all MAP employees, was for a legitimate business purpose and 

that Plaintiff’s complaint regarding the pay disparity was not a motivating factor in the 

exhaustion of the fund. See id. Defendant established that MAP employees were term 

employees whose term of employment was contingent on the grant funding. Defendant 

further established that funding for the program was limited and no new funding was 

given even though the program end date was extended. Defendant provided evidence 

that it reclassified, gave raises to, and provided back pay to Plaintiff and all other MAP 
employees which exhausted the remaining funding, leading to the dissolution of MAP 

and the termination of all MAP employees. Finally, Defendant established that a new 

FSP program was not restarted until new funding was received in July 2016. This 

evidence was sufficient for Defendant to meet its prima facie showing. See Romero, 

2010-NMSC-035, ¶ 10 (“By a prima facie showing is meant such evidence as is 

sufficient in law to raise a presumption of fact or establish the fact in question unless 

rebutted.” (internal quotation marks and citation omitted)). 

{18} On appeal, Plaintiff asserts that she established several issues of material fact 

that rebut Defendant’s prima facie showing. However, we refuse to address Plaintiff’s 

assertions as she fails to cite to evidence in the record to support her claims. Absent 

any citations to the record to support Plaintiff’s contentions, we refuse to address them. 

See Crutchfield v. N.M. Dep’t of Tax’n & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 

106 P.3d 1273 (“[O]n appeal, the party must specifically point out where, in the record, 

the party invoked the court’s ruling on the issue. Absent that citation to the record or any 

obvious preservation, we will not consider the issue.”); see also Muse v. Muse, 2009-

NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, 

arguments, and rulings in order to support generalized arguments.”). Moreover, the 

citations Plaintiff does include are not specific and fail to include the document or 

evidence Plaintiff claims exists. Further, Plaintiff fails to explain how the cited document 

supports her assertions. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 

(“This Court has no duty to review an argument that is not adequately developed.”); 

Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 

(“We will not review unclear arguments, or guess at what [a party’s] arguments might 

be.”). We conclude that Plaintiff failed to provide this Court with evidence in the record 

to establish error in the district court’s ruling. Without any evidence to the contrary, we 

affirm the district court’s grant of summary judgment. See Corona, 2014-NMCA-071, ¶ 

26 (“The appellate court presumes that the district court is correct, and the burden is on 

the appellant to clearly demonstrate that the district court erred.”). 

B. Plaintiff Was Not an Employee Under the WPA When She Sought to Be 

Rehired

{19} Lastly, Plaintiff argues that the district court erred in determining that, as a matter 

of law, Plaintiff was not an employee under the WPA, and therefore not entitled to 

protection under the act, when she sought to be rehired by Defendant after the 

exhaustion of the grant. The district court concluded that because Plaintiff was not an 

employee at the time she sought to be rehired, Defendant’s decision not to rehire her 

could not be considered a retaliatory act as a matter of law. We agree. 

{20} We interpret the meaning of statutory language de novo. See Cooper v. Chevron 

U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61 (“The meaning of 

language used in a statute is a question of law that we review de novo.”). “When 

construing statutes, our guiding principle is to determine and give effect to legislative 

intent.” Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047 (internal quotation 

marks and citation omitted). “Our courts have repeatedly observed that a statute’s plain 
language is the most reliable indicator of legislative intent.” Stennis v. City of Santa Fe, 

2010-NMCA-108, ¶ 10, 149 N.M. 92, 244 P.3d 787. This rule means that if the statute’s 

language is clear and unambiguous we must give effect to the plain meaning of those 

words and refrain from further statutory interpretation. Sims v. Sims, 1996-NMSC-078, ¶ 

17, 122 N.M. 618, 930 P.2d 153. Courts should only go beyond the language of the 

statute if the literal meaning of the words would render the statute’s application absurd 

or unreasonable. Britton v. Off. of Att’y Gen., 2019-NMCA-002, ¶ 27, 433 P.3d 320.

{21} 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 act that the public employee believes in good 

faith constitutes an unlawful or improper act.” Section 10-16C-3(A). The act defines a 

“public employee” as “a person who works for or contracts with a public employer.” 

Section 10-16C-2(B) (emphasis added). The Legislature used present tense verbs in 

the statutory definition to define who constitutes a public employee. As such, the plain 

language of the statute defines public employees who are protected under the act as 

employees who presently work for or contract with a public employer.

{22} Because it is undisputed that Plaintiff’s employment with Defendant ended before 

she applied for the independent contractor position, she did not fall into the category of 

public employee at the time her application was denied, and she was not protected by 

the act when she reapplied to FSP. Because she was not an employee pursuant to the 

WPA, Defendant’s decision not to interview or rehire her could not constitute a 

retaliatory action under the WPA. As a result, we perceive no error in the district court’s 

determination that Defendant’s decision was not retaliatory as a matter of law.

CONCLUSION

{23} For the reasons above, we affirm the district court’s order granting Defendant’s 

motion for summary judgment. 

{24} IT IS SO ORDERED.

KRISTINA BOGARDUS, Judge

WE CONCUR:

J. MILES HANISEE, Judge

GERALD E. BACA, Judge