UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

YELENA BIRD; FREEDOM CHETENI; 

JOHN MORAROS; SATYA RAO, 

 Plaintiffs - Appellants, 

and 

ROBERT BUCKINGHAM, 

 Plaintiff, 

v. 

REGENTS OF NEW MEXICO STATE 

UNIVERSITY; LARRY OLSEN, 

in his individual capacity; JAMES 

ROBINSON, in his individual capacity; 

ROBERT GALLAGHER, 

in his individual capacity; MICHAEL 

ZIMMERMAN, in his individual 

capacity, 

 Defendants - Appellees, 

and 

MICHAEL MARTIN, in his individual 

capacity, 

 Defendant. 

No. 14-2040 

(D.C. No. 1:08-CV-00851-WJ-RHS) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

(continued) 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Before KELLY, PORFILIO, and MATHESON, Circuit Judges. 

 

 Plaintiffs sued the Regents of New Mexico State University (NMSU) and five 

NMSU officials. In their fourth amended complaint, they alleged defendants 

discriminated against them based on their race, retaliated against them for making 

discrimination claims, and retaliated against them for publicly expressing complaints 

about discrimination and retaliation at NMSU, in violation of 42 U.S.C. §§ 1981 and 

1983; § 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; and the New 

Mexico Human Rights Act (NMHRA), N.M. Stat. Ann. §§ 28-1-1 to 28-1-14.1

 Over a three-year period, defendants filed numerous motions for summary 

judgment or partial summary judgment on plaintiffs’ claims; and plaintiffs Bird, 

Moraros, and Cheteni moved for partial summary judgment on their claims. The 

district court denied plaintiffs’ motions and granted summary judgment to defendants 

on all of the plaintiffs’ federal claims and some of their state-law claims under the 

NMHRA. As a result, the district court declined to exercise supplemental 

 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Plaintiff Robert Buckingham settled his claims against defendants in 

September 2010 and is not a party to this appeal. 

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jurisdiction over Dr. Bird’s and Dr. Moraros’s last two remaining NMHRA claims 

and entered judgment for defendants. 

 Plaintiffs appeal from 14 orders. Each ruled against them and in favor of 

defendants.2

 Plaintiffs advance no arguments as to eight of the orders. We therefore 

do not review them. As to the other six orders, their briefing suffers pervasive 

deficiencies, including failure to acknowledge or challenge the court’s reasons 

supporting its conclusions that their claims lack sufficient evidentiary basis. These 

deficiencies foreclose us from considering and in some instances even ascertaining 

what might otherwise have been some meritorious arguments. We have jurisdiction 

under 28 U.S.C. § 1291 and affirm. 

I. BACKGROUND3

 The defendants are the Regents of NMSU;4

 Robert Gallagher, who was 

President of NMSU’s Board of Regents; Michael Zimmerman, who was Registrar; 

Larry Olsen, who was a professor of health science, the Associate Dean for 

Academics and Research in the College of Health and Social Services, and, during 

 2

 Defendant Michael Martin, who was President of NMSU, is not a party to 

this appeal. Plaintiffs did not appeal from the district court’s March 6, 2012 order 

granting summary judgment based on qualified immunity to Dr. Martin, and did not 

include him in any of their arguments. See Aplt. App. Vol. VIII at 2715-16 (notice of 

appeal), Doc. 425 (summary judgment order, not included in appellants’ appendix). 

3

 The facts in this background section are not disputed. 

4

 For simplicity, we refer to the Regents of New Mexico State University as 

“NMSU” throughout this decision. 

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the Fall 2007 semester, the interim Dean of the College of Health and Social 

Services; and James Robinson, who was Chairman of the Department of Health 

Sciences. 

 Plaintiffs John Moraros, a Hispanic, and Yelena Bird, an African American, 

are husband and wife. They entered NMSU in 2002 as graduate students after 

completing medical degrees in Mexico. Both obtained two degrees from NMSU: 

master’s degrees in public health in 2004 and Ph.D. degrees in molecular biology in 

2007. NMSU employed both of them as non-tenure-track faculty members during 

their Ph.D. programs. In late 2006 or early 2007, they complained about 

discrimination at NMSU. They spent much of 2007 in Seattle doing research. Upon 

returning to Las Cruces, both submitted vouchers for their travel expenses, which 

resulted in an internal audit concerning duplicate requests each of them made for 

reimbursement. The auditor interviewed them. The February 2008 audit report 

concluded they may have attempted to defraud the University, not that they merely 

submitted duplicate requests by mistake. The Provost did not renew their teaching 

contracts. NMSU informed Dr. Bird and Dr. Moraros in February 2008 their 

employment would terminate in May 2008. 

 In the spring of 2008, Dr. Bird and Dr. Moraros both gave press interviews, 

complaining about discrimination and retaliation at NMSU. Mr. Gallagher 

responded. Although Dr. Bird and Dr. Moraros subsequently applied for and were 

granted admission as students to NMSU’s School of Social Work in June 2008, their 

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admissions were later rescinded. They claimed defendants threatened to revoke their 

NMSU degrees. 

 Plaintiff Freedom Cheteni, a black male from Zimbabwe, entered the United 

States in 2002 on an F-1 student visa and applied to immigration officials for 

political asylum in 2006. He entered NMSU in 2007 as a graduate student to work 

on a master’s degree in public health. He worked for Dr. Moraros as a graduate 

assistant during the 2007-2008 school year. Beginning in February 2008, 

Mr. Cheteni complained about, and filed charges of, discrimination and retaliation at 

NMSU, both with NMSU and the Equal Employment Opportunity Commission 

(EEOC). In the spring of 2008, Mr. Cheteni also spoke with journalists, complaining 

of discrimination and retaliation at NMSU. Mr. Gallagher responded about 

Mr. Cheteni’s complaints. 

 In March 2008, Mr. Cheteni applied for admission to the Ph.D. program in 

economics in the College of Business. In the summer of 2008, his graduate 

assistantship in the Department of Health Sciences was not renewed for the 

2008-2009 school year. Although he had been charged in-state tuition for the 2007-

2008 school year based on his pending asylum application, he was charged out-ofstate tuition for the Fall 2008 semester. He paid the in-state portion of his tuition for 

that semester, but he was not allowed to enroll for the Spring 2009 semester until he 

paid the balance of out-of-state tuition. Due to the loss of his graduate assistantship, 

however, he could not afford to enroll for the Spring 2009 semester, and NMSU 

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reported to immigration officials that he was not enrolled. His failure to enroll in 

school put him out of student status for immigration purposes by March 2009. He 

was arrested by immigration officials on April 15, 2009, and was detained for 

approximately five months. 

 Plaintiff Satya Rao, from India, was hired as an assistant professor in NMSU’s 

Department of Health Sciences in 1996, promoted to associate professor in 2001, and 

granted tenure in 2002. She inquired into applying for a promotion to full professor 

in 2007, but did not due to Dr. Robinson’s expressed lack of support. In January 

2008, Dr. Rao began complaining about discrimination at NMSU. She filed an 

EEOC charge of discrimination in March 2008. She also spoke to journalists about 

her concerns. She applied for a promotion to full professor in 2009, but her 

application was denied. 

II. ISSUES ON APPEAL

 Plaintiffs assert seven general issues in their opening brief. Aplt. Opening Br. 

at 2-3. But their statement of the issues does not specify how the plaintiffs think the 

district court erred. See id. We attempt to glean this information from the argument 

section of their opening brief. 

 Dr. Bird and Dr. Moraros assert four of the general issues. First, they argue 

their claims of race discrimination and retaliation against NMSU should be tried 

because they presented sufficient evidence that NMSU’s proffered reasons for (a) the 

nonrenewal of their teaching contracts, (b) the rescission of their admission to 

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NMSU’s School of Social Work following their nonrenewal, and (c) the threats to 

revoke their NMSU degrees following their nonrenewal were a pretext for 

discrimination. Second, they argue their claims of race discrimination and retaliation 

against Dr. Robinson and Dr. Olsen should be tried because they presented sufficient 

evidence that Dr. Robinson’s and Dr. Olsen’s actions against them were 

discriminatory and retaliatory. Third, they argue their claims of race discrimination 

and retaliation against NMSU should be tried under the “cat’s paw” doctrine found in 

Staub v. Proctor Hospital, 562 U.S. 411 (2011), because Dr. Robinson and Dr. Olsen 

harbored racial and retaliatory animus toward them and proximately caused their 

nonrenewal. Fourth, Dr. Bird and Dr. Moraros argue their claims of First 

Amendment retaliation against Mr. Gallagher should be tried because there was 

sufficient evidence that he spread negative information about them because of their 

speech on matters of public concern. 

 Mr. Cheteni asserts two general issues on appeal. First, he argues his claim of 

race discrimination and retaliation against NMSU should be tried because (a) the 

district court applied the wrong legal standard to his claims and because there was 

sufficient evidence that the proffered reasons for (b) failing to renew his graduate 

assistantship, (c) refusing to continue giving him in-state tuition, and (d) reporting 

him to immigration officials as unenrolled were pretextual. Second, he argues his 

claims of race discrimination and retaliation against Mr. Zimmerman should be tried 

because there was sufficient evidence that (a) Mr. Zimmerman’s reason for denying 

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him in-state tuition was a pretext for discrimination and retaliation, and 

(b) Mr. Zimmerman’s actions were not objectively reasonable, so he was not entitled 

to qualified immunity. 

 Dr. Rao raises the remaining issue, arguing generally that NMSU is liable for 

discrimination and retaliation for failing to promote her to full professor in 2007 or 

2009. 

 We have spent considerable time examining the district court’s orders and the 

argument section of plaintiffs’ opening brief, searching for arguments and references 

to record evidence that address the district court’s analysis and reasoning. As 

explained below, plaintiffs do not adequately acknowledge, address, or challenge 

with record evidence the district court’s reasons for ruling against them. Plaintiffs 

have not shown error in the district court’s reasoning and conclusions, and we 

therefore affirm. 

III. STANDARDS OF REVIEW

A. Summary Judgment Review

 “We review a district court’s grant of summary judgment de novo, applying 

the same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp., 

659 F.3d 987, 997 (10th Cir. 2011). “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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “In 

applying this standard, we view the evidence and the reasonable inferences to be 

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drawn from the evidence in the light most favorable to the nonmoving party.” Id. 

“Where different ultimate inferences may properly be drawn, the case is not one for a 

summary judgment.” Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1377 

(10th Cir. 1980). 

 We have previously explained, however, that “although our review [in a 

summary judgment case] is de novo, we conduct that review from the perspective of 

the district court at the time it made its ruling, ordinarily limiting our review to the 

materials adequately brought to the attention of the district court by the parties.” 

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). This standard is 

particularly important in employment discrimination cases “[b]ecause of the sheer 

volume of the record.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th Cir. 

2008) (citing Adler, 144 F.3d at 672). The district court may “go beyond the 

referenced portions” of the plaintiffs’ evidentiary materials, “but is not required to do 

so.” Adler, 144 F.3d at 672. This court also may “more broadly review the record on 

appeal,” but we ordinarily do not do so because “we, like the district courts, have a 

limited and neutral role in the adversarial process, and are wary of becoming 

advocates who comb the record of previously available evidence and make a party’s 

case for it.” Id.; cf. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir. 

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1990) (holding that the court of appeals “need not ‘sift through’ the record to find 

[the appellant’s] evidence” in the absence of citations in the appellant’s brief).5

 

B. Legal Background 

We briefly review pertinent legal background here to put the ensuing 

discussion in context. 

1. The McDonnell Douglas Burden-Shifting Framework for Discrimination and 

Related Retaliation Claims 

 At the district court, plaintiffs attempted to use indirect or circumstantial 

evidence to show discrimination and retaliation. Accordingly, their claims are 

 5

 Dr. Bird and Dr. Moraros appeal from the district court’s order granting 

summary judgment to Mr. Gallagher on their First Amendment retaliation claims 

against him. The court granted him qualified immunity because plaintiffs failed to 

produce specific evidence that he acted with a retaliatory motive, as required by 

McBeth v. Himes, 598 F.3d 708, 724-25 (10th Cir. 2010). On appeal, Dr. Bird and 

Dr. Moraros do not adequately present evidence supporting this claim. See Aplt. 

Opening Br. at 3, 46-47. 

We have said that “[i]n cases involving the First Amendment, the de novo 

standard is appropriate [at summary judgment] . . . for the further reason that . . . ‘an 

appellate court has an obligation to make an independent examination of the whole 

record in order to make sure that the judgment does not constitute a forbidden 

intrusion on the field of free expression.’” Horstkoetter v. Dep’t of Pub. Safety, 

159 F.3d 1265, 1270 (10th Cir. 1998) (quoting Rankin v. McPherson, 483 U.S. 378, 

386 n.9 (1987)) (further quotation omitted). 

This First Amendment standard of review does not excuse plaintiffs from 

adequately developing an appellate argument that presents the necessary supporting 

evidence. As we have said in a case alleging retaliation for protected speech, “[i]t is 

the place of counsel, not the Court of Appeals, to identify the specific instances of 

speech upon which the plaintiff seeks to base [his or] her claim.” Craven v. Univ. of 

Colo. Hosp. Auth., 260 F.3d 1218, 1226 (10th Cir. 2001). The appellant “bears the 

burden of demonstrating the alleged error.” Hernandez v. Starbuck, 69 F.3d 1089, 

1093 (10th Cir. 1995). 

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assessed under the burden-shifting scheme of McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973). 

First a plaintiff must establish a prima facie case of . . . discrimination. 

If the plaintiff succeeds, the burden shifts to the defendant to articulate a 

legitimate, nondiscriminatory reason for its actions. If the defendant 

does so, the burden shifts back to the plaintiff to show that his or her 

protected characteristic was a determinative factor in the defendant’s 

employment decision or that the defendant’s explanation was merely 

pretextual. 

Riser v. QEP Energy, 776 F.3d 1191, 1200 (10th Cir. 2015) (discussing pay 

discrimination claim under Title VII) (internal quotation marks omitted). 

 “[I]n racial discrimination suits, the elements of a plaintiff’s [prima facie] case 

are the same . . . whether that case is brought under [42 U.S.C.] §§ 1981 or 1983 or 

Title VII.” Baca v. Sklar, 398 F.3d 1210, 1218 n.3 (10th Cir. 2005) (first and third 

alterations in original) (internal quotation marks omitted). In a case alleging 

employment discrimination, the same standard is used for Title VII and NMHRA 

claims. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 n.5 (10th Cir. 2005). And 

“[c]ourts often use [the] Title VII proof scheme for Title VI claims.” Bryant v. 

Indep. Sch. Dist. No. I-38, 334 F.3d 928, 930 n.1 (10th Cir. 2003). 

 “[T]he articulation of a plaintiff’s prima facie case may well vary, depending 

on the context of the claim and the nature of the adverse employment action alleged.” 

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). Generally, to make out a 

prima facie case of discrimination, a plaintiff must demonstrate “that (1) the victim 

belongs to a protected class; (2) the victim suffered an adverse employment action; 

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and (3) the challenged action took place under circumstances giving rise to an 

inference of discrimination.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 

2007). “The critical prima facie inquiry in all cases is whether the plaintiff has 

demonstrated that the adverse employment action occurred ‘under circumstances 

which give rise to an inference of unlawful discrimination.’” Kendrick v. Penske 

Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000) (quoting Texas Dep’t of 

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). 

 The prima facie case for a retaliation claim based on an underlying claim of 

discrimination differs from that for the race discrimination claim itself: 

 Under the McDonnell Douglas approach, a plaintiff must first 

make out a prima facie case of retaliation by showing (1) that he 

engaged in protected opposition to discrimination, (2) that a reasonable 

employee would have found the challenged action materially adverse, 

and (3) that a causal connection existed between the protected activity 

and the materially adverse action. 

Estate of Bassatt v. Sch. Dist. No. 1, 775 F.3d 1233, 1238 (10th Cir. 2014) 

(discussing retaliation claim under Title VII) (internal quotation marks omitted); see 

also Twigg, 659 F.3d at 998 (discussing retaliation claim under 42 U.S.C. § 1981). 

 When a plaintiff asserts that an unbiased decisionmaker took an adverse action 

based on the recommendation of a biased subordinate (known as “cat’s paw” 

liability), the plaintiff must establish as part of the prima facie case “the 

decisionmaker’s uncritical ‘reli[ance]’ on facts provided by a biased supervisor.” 

Lobato v. N.M. Envtl. Dep’t, 733 F.3d 1283, 1294 (10th Cir. 2013) (alteration in 

original) (quoting Staub, 562 U.S. at 421). 

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 As shown above, the elements of a prima facie case differ between race 

discrimination and retaliation claims. The McDonnell Douglas burden-shifting 

analysis, however, is the same for retaliation claims related to race discrimination: 

(1) “a plaintiff must first make out a prima facie case of retaliation”; (2) “[o]nce the 

plaintiff establishes a prima facie case, the burden shifts to the employer to provide a 

legitimate and facially nondiscriminatory reason for its decision”; and (3) “[i]f the 

employer satisfies this burden, then the plaintiff must establish by a preponderance of 

the evidence that the employer’s reasons were merely a pretext for discrimination.” 

Estate of Bassatt, 775 F.3d at 1238. 

 As to both their discrimination and retaliation claims, plaintiffs focus most of 

their appellate arguments on the pretext step of this analysis. “A plaintiff 

demonstrates pretext by producing evidence of such weaknesses . . . in the 

employer’s proffered legitimate reasons for its action that a reasonable factfinder 

could rationally find them unworthy of credence.” Id. at 1239 (alteration in original) 

(internal quotation marks omitted). 

2. The Garcetti/Pickering6

 Analysis for First Amendment Retaliation Claims 

 Plaintiffs alleged two types of retaliation claims. The one described above is a 

claim that the defendant took adverse action against the plaintiff for making a claim 

of discrimination. The second type, described here, concerns retaliation for the 

 6 See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 

U.S. 563 (1968). 

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exercise of free speech on a matter of public concern protected by the First 

Amendment. 

 The Supreme Court has “declared that citizens do not surrender their First 

Amendment rights by accepting public employment.” Lane v. Franks, 134 S. Ct. 

2369, 2374 (2014). But public employees do “not enjoy the same scope of First 

Amendment rights as a private citizen.” Rock v. Levinski, No. 14-2157, 2015 WL 

3939020, at *3 (10th Cir. June 29, 2015). “‘[T]he First Amendment protection of a 

public employee’s speech depends on a careful balance between the interests of the 

employee, as a citizen, in commenting upon matters of public concern and the 

interest of the State, as an employer, in promoting the efficiency of the public 

services it performs through its employees.’” Seifert v. Unified Gov’t of Wyandotte 

Cty./Kan. City, 779 F.3d 1141, 1151 (10th Cir. 2015) (alteration in original) (quoting 

Lane, 134 S. Ct. at 2374). 

 “The familiar Garcetti/Pickering analysis governs First Amendment retaliation 

claims.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir. 2015) 

(internal quotation marks omitted). It consists of five elements: 

(1) whether the speech was made pursuant to an employee’s official 

duties; (2) whether the speech was on a matter of public concern; 

(3) whether the government’s interests, as employer, in promoting the 

efficiency of the public service are sufficient to outweigh the plaintiff’s 

free speech interests; (4) whether the protected speech was a motivating 

factor in the adverse employment action; and (5) whether the defendant 

would have reached the same employment decision in the absence of the 

protected conduct. 

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Id. (internal quotation marks omitted). “The first three elements are typically 

questions of law (though they can turn on disputed issues of fact), while the last two 

are typically questions of fact.” Seifert, 779 F.3d at 1151. 

3. Qualified Immunity for Individuals Sued Under 42 U.S.C. §§ 1981 and 1983 

 “Suits against government officials in their individual capacities are governed 

by 42 U.S.C. § 1983, which imposes civil liability on a person who acting under the 

color of the law causes a deprivation of another’s constitutional right.” McDonald v. 

Wise, 769 F.3d 1202, 1215 (10th Cir. 2014). “The qualified immunity doctrine 

shields government officials from individual liability ‘for civil damages insofar as 

their conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.’” Kramer v. Wasatch Cty. Sheriff’s 

Office, 743 F.3d 726, 758 (10th Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 818 (1982)) (assessing § 1983 claim). The doctrine of qualified immunity 

“affords ‘protection to all but the plainly incompetent or those who knowingly violate 

the law.’” Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1183 (10th Cir. 2009) 

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). We have applied qualified 

immunity analysis to § 1981 claims as well as to § 1983 claims, Ramirez v. Dep’t of 

Corr., 222 F.3d 1238, 1244 (10th Cir. 2000), to shield from suit public officials who 

have been sued in their individual capacities for money damages, regardless of 

whether the underlying claim itself is assessed under McDonnell Douglas or 

Garcetti/Pickering. 

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 “Generally, when a defendant asserts qualified immunity, the plaintiff carries a 

two-part burden to show: (1) that the defendant’s actions violated a federal 

constitutional or statutory right, and, if so, (2) that the right was clearly established at 

the time of the defendant’s unlawful conduct.” Estate of Booker v. Gomez, 745 F.3d 

405, 411 (10th Cir. 2014) (internal quotation marks omitted) (discussing claim under 

§ 1983). When the defense of qualified immunity has been asserted, “[p]laintiff has 

the burden to show with particularity facts and law establishing the inference that 

defendant violated a constitutional right.” Hollingsworth v. Hill, 110 F.3d 733, 737-

38 (10th Cir. 1997) (internal quotation marks omitted). 

 Once a plaintiff carries his initial burden, “[t]he burden then shifts to the 

defendant to show that there are no material issues of fact that would defeat the claim 

of qualified immunity.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877 (10th 

Cir. 2014). The defendant must “show that there are no disputes of material fact as to 

whether his conduct was objectively reasonable in light of clearly established law and 

the information known to the defendant at the time.” Id. (internal quotation marks 

omitted). 

4. Modified Qualified Immunity Analysis When Motive Is at Issue 

 “When the qualified immunity inquiry turns on a subjective element, as it does 

when examining motive, the qualified immunity analysis is modified slightly.” 

McBeth v. Himes, 598 F.3d 708, 724 (10th Cir. 2010) (internal quotation marks 

omitted) (applying modified qualified immunity test to First Amendment retaliation 

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claim where motive was at issue); see also Bruning v. Pixler, 949 F.2d 352, 356 (10th 

Cir. 1991) (explaining, in case challenging affidavits supporting a search warrant, 

that the modified qualified immunity test applies “when the plaintiff’s claim contains 

a subjective element, such as the defendant’s purpose, motive, or intent”). In this 

context, “[t]he defendant must do more than merely raise the qualified immunity 

defense; he must make a prima facie showing of the objective reasonableness of the 

challenged conduct.” McBeth, 598 F.3d at 724 (brackets omitted) (internal quotation 

marks omitted). If the defendant carries this burden, “the plaintiff must then produce 

specific evidence of the defendant’s culpable state of mind to survive summary 

judgment.” Id. at 724-25 (internal quotation marks omitted). 

5. Appellate Briefing Standards

 “The first task of an appellant is to explain to us why the district court’s 

decision was wrong.” Nixon, 784 F.3d at 1366; accord Hernandez v. Starbuck, 

69 F.3d 1089, 1093 (10th Cir. 1995) (“Because the appellant comes to the court of 

appeals as the challenger, he bears the burden of demonstrating the alleged error and 

the precise relief sought.”). Advancing other arguments “will not help the appellant 

if the reasons that were given by the district court go unchallenged.” Nixon, 784 F.3d 

at 1366. We are “not required to manufacture an appellant’s argument on appeal 

when it has failed in its burden to draw our attention to the error below.” Hernandez, 

69 F.3d at 1093 (internal quotation marks omitted). An appellant must “explain what 

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was wrong with the reasoning that the district court relied on in reaching its 

decision.” Nixon, 784 F.3d at 1366. 

 Rule 28(a)(8)(A) of the Federal Rules of Appellate Procedure “requires the 

argument section [of an appellant’s brief] to contain ‘appellant’s contentions and the 

reasons for them, with citations to the authorities and parts of the record on which the 

appellant relies.’” MacArthur v. San Juan Cty., 495 F.3d 1157, 1160 (10th Cir. 2007) 

(quoting Rule 28(a)(9)(A), as the rule was styled before the 2013 amendments 

reorganized the paragraphs). “Under Rule 28, . . . a brief must contain . . . more than 

a generalized assertion of error, with citations to supporting authority.” Garrett v. 

Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (second 

alteration in original) (internal quotation marks omitted). 

When “[t]he argument section of [the] opening brief does not challenge the 

[district] court’s reasoning on [a] point[, w]e . . . do not address the matter.” Reedy v. 

Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011). It is a “settled principle that when 

an appellant fails to raise a contention in his opening brief the ground for relief is 

ordinarily considered waived.” Hernandez, 69 F.3d at 1093. And we generally “do 

not review claims on appeal that were not presented below.” Pignanelli v. Pueblo 

Sch. Dist. No. 60, 540 F.3d 1213, 1217 (10th Cir. 2008). Accordingly, our local rules 

require appellants to identify “the precise reference in the record where [each] issue 

was raised and ruled on.” 10th Cir. R. 28.2(C)(2). 

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IV. OUTLINE OF APPELLANTS’ ARGUMENTS 

 As noted above, plaintiffs assert only seven issues for appeal in their statement 

of the issues. Aplt. Opening Br. at 2-3. Nonetheless, we have counted attempts to 

make 21 distinct arguments in the 28-page argument section of their opening brief. 

See id. at 33-62. For the benefit of the reader, we provide the following outline. We 

list Mr. Cheteni’s issues in a different order than presented in plaintiffs’ brief to 

facilitate our analysis. 

A. Dr. Bird and Dr. Moraros

NMSU’s Reasons for the Nonrenewal of Dr. Bird’s and Dr. Moraros’s Teaching 

Contracts Were Pretextual Because:

1. NMSU Departed From an Established Past Practice in Investigating Their 

Duplicate Expense Vouchers; 

2. Dr. Robinson’s Pre-Recommendation Meeting With Senior Faculty Members 

Was Pro Forma; 

3. The Audit Report Did Not Find Fraud; 

4. The Non-Minority Comparator Was Not Terminated After a Finding of 

Fraud; and 

5. Dr. Robinson and Dr. Olsen Made Racist Remarks Against Dr. Bird and 

Dr. Moraros. 

NMSU’s Reasons for Rescinding Dr. Bird’s and Dr. Moraros’s Admissions to the 

School of Social Work Post-Nonrenewal Were Pretextual Because: 

6. They Were Singled Out for an Audit of Their Credentials; and 

7. They Had Already Provided Information to Support Admission. 

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8. NMSU’s Reasons for Threatening to Revoke Dr. Bird’s and Dr. Moraros’s 

NMSU Graduate Degrees Were Pretextual; 

9. Dr. Robinson and Dr. Olsen Were Directly Involved In and Are Liable for 

the Nonrenewal of Dr. Bird’s and Dr. Moraros’s Teaching Contracts; 

10. Dr. Robinson and Dr. Olsen Were Biased Against Dr. Bird and Dr. Moraros;

11. Dr. Robinson and Dr. Olsen Proximately Caused Dr. Bird’s and 

Dr. Moraros’s Nonrenewal, so NMSU Is Liable; and 

12. Mr. Gallagher Is Liable for Retaliation Against Dr. Bird and Dr. Moraros 

Based on His Speech to the Press. 

B. Mr. Cheteni 

13. Mr. Zimmerman’s Actions Were Not Objectively Reasonable, so He Is Not 

Entitled to Qualified Immunity on Mr. Cheteni’s Retaliation Claims; 

14. NMSU’s Reasons for Revoking Mr. Cheteni’s In-State Tuition Were 

Pretextual Because He Sufficiently Demonstrated to Mr. Zimmerman His 

Asylum Application Was Still Pending; 

15. NMSU Is Liable for Retaliation Because Mr. Zimmerman’s Reasons for 

Reporting Mr. Cheteni’s Loss of Student Status to Immigration Officials 

Violated a Prior Court Order; 

16. NMSU’s Reasons for Nonrenewal of Mr. Cheteni’s Graduate Assistantship 

Were Pretextual Because Dr. Arnold Knew That He Was Enrolled in the 

Department of Health Sciences; and 

17. Mr. Cheteni’s Claims Against NMSU under Title VI, Title VII, and NMHRA 

Should Be Tried Because the District Court Applied the Wrong Legal 

Standard. 

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C. Dr. Rao

Dr. Rao Made a Prima Facie Showing of: 

18. NMSU’s Discrimination in 2007; 

19. NMSU’s Discrimination in 2009; and 

20. NMSU’s Retaliation in 2009. 

21. Dr. Rao Showed Pretext in her 2009 Retaliation Claim Against NMSU. 

V. DISCUSSION OF APPELLANTS’ ARGUMENTS 

 Before we discuss each of plaintiffs’ issues, we identify these overarching 

problems with their briefing. 

First, some of plaintiffs’ 21 specific arguments are as short as a single 

paragraph; the longest is only two and a half pages. Within these arguments, 

plaintiffs have only interspersed references to particular conclusions the district court 

made, mostly followed by a cite to one or more of the district court orders. Contrary 

to 10th Cir. R. 28.2(C)(2), however, plaintiffs do not identify where their issues were 

raised in the district court. Moreover, some of their arguments were not raised 

below. 

 Second, plaintiffs’ factual assertions are also problematic. They ignore 

defendants’ evidence and present only a selected portion of their own evidence, as 

compared to what they presented to the district court and what the district court 

addressed in its orders. Beyond that, many of their factual assertions lack any record 

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cite, while others either are unsupported by the cite provided or are contradicted by 

the cited evidence.7

 

 Third, even if plaintiffs had properly supported every factual assertion in their 

brief with a valid record cite, they would not overcome their failure (1) to adequately 

challenge the grounds supporting the district court’s conclusions that summary 

judgment was properly granted to defendants or (2) to explain why the court’s 

application of the law or assessment of the evidence was wrong. Plaintiffs largely 

avoid the district court’s reasoning rather than address it. A footnote in their reply 

brief illustrates their misunderstanding of their obligations on appeal: 

Appellees appear to be concerned that Appellants did not review each 

and every point of each ruling upon which they believe the District 

Court has erred. [Aplee. Br. at] 42. Appellants point out that such 

recitation is unnecessary as the standard of review on appeal is de novo

and all fourteen (14) Memorandum Opinion and Orders have been 

provided to the court both within the Appendix and as an attachment to 

Appellants[’] Opening Brief. 

Aplt. Reply Br. at 13 n.1. 

 7

 The district court also noted similar deficiencies in plaintiffs’ briefs. See, 

e.g., Aplt. App. Vol. V at 1549 n.2 (noting plaintiffs’ incorrect references to their 

exhibits); id. at 1560 (noting in Doc. 426 that Dr. Bird and Dr. Moraros’s argument 

that Dr. Robinson had made racist comments about them was limited to two 

sentences followed by a cite to four of their Additional Material Facts); id. at 1586 

(noting in Doc. 437 that Mr. Cheteni had failed to produce evidence of 

Mr. Zimmerman’s culpable state of mind and stating the court would “not comb the 

record” to look for the evidence or manufacture an explanation that Mr. Cheteni had 

failed to provide for why Mr. Zimmerman’s actions were improperly motivated); id.

Vol. VII at 2457 (noting in Doc. 484 that Dr. Rao had produced evidence only of the 

guidelines governing her application for promotion to full professor and no evidence 

of the policies governing the prior promotions of other faculty members). 

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Plaintiffs’ approach to this appeal is akin to emptying a box of jigsaw puzzle 

pieces onto a table and asking this court to put the picture of their arguments 

together. But that is their job, and they have not shown how the district court erred 

in its reasoning in any of its 14 orders. Their arguments on appeal are misplaced, 

incomplete, factually unsupported, and unpersuasive; in short, their arguments are 

mostly inadequately briefed. 

A. Dr. Bird and Dr. Moraros

 Dr. Bird and Dr. Moraros’s arguments appear at pages 33-47 of the opening 

brief. They argue their claims for race discrimination and retaliation against NMSU, 

Dr. Robinson, Dr. Olsen, and Mr. Gallagher should be tried because they presented 

sufficient evidence that these defendants’ proffered reasons for their actions were a 

pretext for discrimination and retaliation at the third step of the McDonnell Douglas

burden-shifting scheme. 

1. NMSU’s Reasons for the Nonrenewal of Dr. Bird’s and Dr. Moraros’s 

Teaching Contracts Were Pretextual Because NMSU Departed From an 

Established Past Practice in Investigating Their Duplicate Expense Vouchers 

 Dr. Bird and Dr. Moraros argue, in one long paragraph, Aplt. Opening Br. 

at 35-36, that they showed pretext because Larry Olsen, then-faculty member and 

interim Dean of the College of Health and Social Services, and James Robinson, 

then-Chairman of the Department of Health Sciences, handled their duplicate 

vouchers for travel expenses (when they returned to Las Cruces from Seattle in 2007) 

contrary to an established, unwritten policy by referring the matter to internal audit 

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instead of resolving the matter within the Department of Health Sciences. Though 

they state summarily that “[i]n all prior instances, issues were resolved amicably 

within the department by speaking with people involved and admonishing them to be 

more careful,” id. at 35, they do not cite record evidence or provide detail about prior 

instances, see id. at 35-36. 

 Plaintiffs do not support their contention that the district court discounted their 

evidence. They state “the evidence cited above” shows error, id. at 35, but they do 

not provide record cites. This is insufficient to show pretext and also constitutes 

inadequate briefing under Fed. R. App. P. 28(a)(8)(A), which requires the argument 

section to contain the “citations to the authorities and parts of the record on which the 

appellant relies.” 

 Plaintiffs refer to and do not challenge the district court’s conclusion that 

“there was no policy requiring travel reimbursement issues be handled within the 

department,” Aplt. Opening Br. at 36 (citing Aplt. App. Vol. V at 1556). They even 

concede that “no policy required that these issues be handled in any particular way.” 

Id. All that is left to support their assertion of a deviation from an established 

practice is a string cite to eight pages in their appendix. See id. (citing Aplt. App. 

Vol. VII at 2272-73, 2305-10). One page is a letter from Dr. Olsen to Ms. Brenda 

Shannon, NMSU’s chief auditor. Aplt. App. Vol. VII at 2310. The other seven 

pages are from Dr. Robinson’s and Dr. Olsen’s depositions. Id. at 2272-73 

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(Robinson), 2305-09 (Olsen). Plaintiffs do not explain, however, what we should 

find on these pages to support their argument. 

We have reviewed plaintiffs’ cited evidence. It does not support their 

argument that NMSU had an established, unwritten policy or practice for handling 

voucher problems within the Department of Health Sciences and that Dr. Robinson 

and Dr. Olsen deviated from that policy by referring Dr. Bird’s and Dr. Moraros’s 

duplicate requests to internal audit. Thus, Dr. Bird and Dr. Moraros’s argument is 

conclusory, unsupported, and undeveloped. It is at best insufficiently supported and 

otherwise should be considered waived. See Utahns for Better Transp. v. U.S. Dep’t 

of Transp., 305 F.3d 1152, 1169 (10th Cir. 2002) (holding that an argument 

consisting entirely of conclusory statements and unhelpful citations was deemed 

waived for failure to brief); Moore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir. 

1999) (“We do not consider unsupported and undeveloped issues.”). 

 Dr. Bird and Dr. Moraros’s argument is further deficient because they do not 

mention, let alone challenge, the district court’s summary of the law in its 

Memorandum Opinion and Order of March 23, 2012 (“Doc. 426”) applicable to 

whether alleged procedural irregularities in written and unwritten policies show 

pretext, or the court’s assessment of the evidence. See Aplt. App. Vol. V at 1555-56. 

Plaintiffs’ argument that the court reached the wrong conclusion is therefore also 

inadequate or waived because they did not challenge the district court’s reasoning. 

See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (holding that where 

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“[t]he argument section of [appellant’s] opening brief does not challenge the [district] 

court’s reasoning on [a] point[, w]e . . . do not address the matter”); Sports Racing 

Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 880 (10th Cir. 1997) 

(holding that appellants’ failure to “explain[] how the district court erred” resulted in 

a waiver); Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (holding that 

the appellant “bears the burden of demonstrating the alleged error,” and “when it has 

failed in its burden to draw our attention to the error below, . . ., the court will 

ordinarily consider the appellant’s point waived” (internal quotation marks omitted)). 

In any event, plaintiffs fail to show that the district court erred in rejecting 

their argument that NMSU was liable for discrimination and retaliation because 

Dr. Olsen and Dr. Robinson deviated from an established, unwritten policy or 

practice to handle voucher problems within the Department of Health Sciences. 

2. NMSU’s Reasons for the Nonrenewal of Dr. Bird’s and Dr. Moraros’s 

Teaching Contracts Were Pretextual Because Dr. Robinson’s PreRecommendation Meeting With Senior Faculty Members Was Pro Forma 

 Dr. Bird and Dr. Moraros’s second argument challenging their nonrenewal is 

set out in two paragraphs. Aplt. Opening Br. at 36-37. They argue Dr. Robinson was 

required to consult with all senior faculty members about his proposed nonrenewal of 

Dr. Bird’s and Dr. Moraros’s teaching contracts, but he had already decided to 

recommend nonrenewal before holding a meeting, which was just “checking the 

box.” Id. at 36 (internal quotation marks omitted). They do not contest that 

Dr. Robinson called a meeting, but they contend he did so on such short notice that 

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Dr. Rao could not attend. Id. They assert the district court should not have rejected 

their argument that the policy required Dr. Robinson to consult senior faculty 

members in good faith. Id. at 36-37. 

 Dr. Bird and Dr. Moraros’s argument includes no cites to the factual record, 

any district court order, or any case authority. They provide no factual basis for their 

assertion that Dr. Robinson had already made up his mind to recommend nonrenewal 

before holding the meeting with senior faculty members. See id. at 36. And they 

restate only part of the district court’s finding—that Dr. Robinson was required to 

meet with senior faculty—neglecting to mention he was not required to agree with 

them. Id. at 37. But cf. Aplt. App. Vol. V at 1557. They do not cite the district 

court’s order, Doc. 426, and they ignore that the district court also concluded that 

they had admitted, and the record showed, that Dr. Robinson had followed the policy 

to meet with senior faculty members. Aplt. App. Vol. V at 1557. They presented no 

evidence that Dr. Robinson was required to follow the consensus of the senior faculty 

members. Id. 

 Because plaintiffs fail to provide factual support for their assertions, their 

argument is insufficient to show pretext or is waived as unsupported and undeveloped 

under Moore, 195 F.3d at 1180 n.17. And because they do not address or challenge 

the district court’s reasons for rejecting their argument on this issue, they have not 

shown pretext or have otherwise waived their argument under Reedy, 660 F.3d 

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at 1275; Sports Racing Services, 131 F.3d at 880; and Hernandez, 69 F.3d at 1093. It 

necessarily follows that plaintiffs have not shown the district court erred. 

 Finally, to the extent plaintiffs argue on appeal that Dr. Robinson was required 

to consult “all” senior faculty members, including Dr. Rao, Aplt. Opening Br. at 36, 

they do not show they raised this argument to the district court, see id., and our 

review of their district court brief confirms that they did not do so, see Aplt. App. 

Vol. IV at 1234. “We do not review claims on appeal that were not presented 

below,” Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1217 (10th Cir. 

2008), so plaintiffs’ “all senior faculty” argument is waived. 

3. NMSU’s Reasons for the Nonrenewal of Dr. Bird and Dr. Moraros’s 

Teaching Contracts Were Pretextual Because the Audit Report Did Not Find 

Fraud 

 Dr. Bird and Dr. Moraros’s third challenge to their nonrenewal is set out in 

one long paragraph. Aplt. Opening Br. at 37-38. They argue that NMSU is liable 

because Provost Cruzado, who made the decision not to renew their teaching 

contracts, concluded they had attempted to defraud NMSU by submitting two 

expense vouchers for the same travel, but that the audit report did not explicitly find 

attempted fraud, so the Provost’s stated reason for their nonrenewal is pretextual. Id.

at 37. We reject their argument due to the deficiencies of their brief and their 

resulting failure to show pretext. 

 The audit report stated that only one of Dr. Bird’s and Dr. Moraros’s 

reimbursement requests was paid, “but the fact that both individuals requested 

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reimbursement for the same mileage expense might constitute attempted fraud, 

assuming the two colluded to be paid twice for the same expense. The amount in 

question is approximately $800.” Aplt. App. Vol. VII at 2311. The report also stated 

that “in accordance with state law and university policy,” this “‘potential 

defalcation’” would be reported to “the State Auditor and the NMSU police.” Id.

at 2313. It found that Dr. Bird’s explanation was “unclear” and Dr. Moraros’s 

information was “contradictory,” not that Dr. Bird and Dr. Moraros had simply made 

a mistake in submitting two vouchers for the same trip. Id. After the report was 

prepared, the Provost met with the auditor, Ms. Shannon, to review it in detail. Id.

at 2242. 

 The travel reimbursement issue was raised before the district court in 

Defendants NMSU and James Robinson’s Revised Memorandum of Law in Support 

of Motion for Summary Judgment of April 15, 2011, Doc. 389, and Defendant 

Larry Olsen’s Second Revised Motion for Summary Judgment on Plaintiffs’ Claims 

for First Amendment Retaliation of October 7, 2011, Doc. 413. See id. Vol. IV 

at 1135 (Doc. 389), 1327 (Doc. 413). NMSU and Dr. Robinson alleged, with cites to 

the evidence, that Dr. Bird and Dr. Moraros had each submitted an expense voucher 

for the same travel after having been told they could submit only one request, and 

that they had submitted their requests through different departments at NMSU. Id.

at 1138-1139, ¶¶ 14-20; 1145-1146. NMSU and Dr. Robinson further asserted that 

Dr. Bird and Dr. Moraros had acknowledged they had submitted two requests for the 

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same trip, but contended that “it was mere ‘negligence.’” Id. at 1146. NMSU and 

Dr. Robinson also asserted that the Provost had approved Dr. Robinson’s 

recommendation for nonrenewal after reviewing the audit report with the auditor 

because the Provost was concerned about young faculty members attempting to 

defraud NMSU. See id. at 1138, ¶ 15; 1139, ¶ 20; 1146. Dr. Olsen asserted in his 

motion, also with cites to the evidence, that the NMSU Travel Office had questioned 

Dr. Bird’s and Dr. Moraros’s duplicate expense requests, that he had requested an 

audit at the direction of NMSU’s general counsel, and that he had discussed his 

concerns about the travel reimbursement issue with Dr. Robinson and the Provost but 

was not involved in the decision not to renew Dr. Bird’s and Dr. Moraros’s teaching 

contracts. Id. at 1328, ¶ 3; 1329, ¶¶ 5-6. 

 Dr. Bird and Dr. Moraros attempted to dispute several of NMSU’s and 

Dr. Robinson’s alleged facts in their response in opposition, Doc. 401, to NMSU’s 

and Dr. Robinson’s summary judgment motion. See id. at 1217. They admitted that 

they each had submitted a travel expense request, id. at 1221-22, ¶¶ 22-23, but 

asserted the audit report did not find that they had attempted fraud “or that their 

conduct was anything other than an oversight,” id. at 1224, ¶ 31; 1227, ¶ 52. They 

asserted that Provost Cruzado “was the alleged final decision-maker in the 

terminations of Bird and Moraros,” id. at 1236, but that Dr. Robinson and Dr. Olsen, 

who were biased against them, were the driving forces in their nonrenewal, see id.

at 1230-1238. Dr. Bird and Dr. Moraros made little attempt to dispute Dr. Olsen’s 

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allegations in their response in opposition, Doc. 418, alleging only that the Provost 

met with Dr. Robinson and Dr. Olsen “to discuss the continuation of Bird’s and 

Moraros’ faculty contracts, particularly due to the travel reimbursement issue.” Id.

at 1398, ¶ 18. 

 The district court granted, in relevant part, NMSU and Dr. Robinson’s motion 

in Doc. 426. See id. Vol. V at 1545. It concluded that the travel reimbursement issue 

was the main reason for Dr. Bird’s and Dr. Moraros’s nonrenewal, id. at 1551, and 

that the audit report did not find their duplicate reimbursement requests were 

submitted by mistake, as they had contended, id. at 1552. The court also quoted the 

Provost’s testimony concerning her reason for approving their nonrenewal: 

It was mainly the concern that I had with two young faculty members 

who so early in their careers had attempted to defraud the institution 

. . . . The investigation about the attempt to defraud the institution, 

again, and the conclusions that were reached, provided me with the 

necessary evidence to say this is not the type of faculty member that we 

can have at New Mexico State. 

Id. at 1551-52 (citing id. Vol. IV at 1203 (Cruzado depo. 41:24-42:1)) (alteration in 

original). Subsequently, the district court also granted Dr. Olsen’s motion in its 

Memorandum Opinion and Order of August 30, 2012 (“Doc. 431”). It concluded that 

plaintiffs did “not dispute Cruzado’s conclusion that an attempt to defraud is 

sufficient cause not to renew contracts.” Id. at 1576 (citing id. Vol. IV at 1201, 

1203). 

 The district court concluded that the content of the audit report and the 

Provost’s discussion with the auditor supplied the Provost a legitimate reason to 

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terminate Dr. Bird’s and Dr. Moraros’s contracts. Dr. Bird and Dr. Moraros are not 

able to contest that conclusion, nor do they try. The only reference in their appellate 

brief to any district court order addressing the audit report is to one page in Doc. 431. 

See Aplt. Opening Br. at 38. They assert the district court determined that “the 

inconclusiveness of the report was not significant because the report did not find an 

absence of fraudulent intent.” Id. at 37-38 (citing Aplt. App. Vol. V at 1576). They 

further assert the court misinterpreted “the significance of the report . . . because it 

does not support the stated reason for the terminations.” Id. at 38. No such district 

court conclusion appears on the cited page, although the court indicated as much in 

Doc. 426. See Aplt. App. Vol. V at 1552. In any event, Dr. Bird and Dr. Moraros 

make only a conclusory reference to the audit report itself. See Aplt. Opening Br. 

at 37. They do not explain what was in the report, how the district court interpreted 

it, or why the report’s alleged inconclusiveness is significant. See Aplt. Opening Br. 

at 37-38. 

 The district court addressed the audit report more fully in Doc. 426 on pages 

that plaintiffs do not cite anywhere in the argument section of their opening brief. 

See Aplt. App. Vol. V at 1551-54. As noted above, the court stated that the audit 

report did not find that Dr. Bird’s and Dr. Moraros’s duplicate reimbursement 

requests were submitted by mistake, as they had contended. Id. at 1552. In other 

words, the report did not exonerate them. Dr. Bird and Dr. Moraros do not challenge 

the court’s conclusion. 

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 Instead of discussing the district court’s reasoning in their appellate brief, 

Dr. Bird and Dr. Moraros misstate or misconstrue factual matters without regard to 

what the district court said. They assert the Provost “allegedly” had “a brief meeting 

with the auditor,” Aplt. Opening Br. at 37, but the evidence they cite shows the 

Provost met with Ms. Shannon and “went into almost item-by-item the things that — 

the methodology that [Ms. Shannon] observed, the persons or people that she had 

interviewed, how she gathered the information, including meetings with Dr. Moraros 

and Dr. Bird, and then her conclusions about — about the situation,” Aplt. App. 

Vol. VII at 2242 (Cruzado depo. 34:5-34:10). They assert—with evidentiary 

support—that Dr. Robinson “made his decision to terminate long before” the audit, 

Aplt. Opening Br. at 37, but they acknowledge that the Provost waited for the report 

and “approved the termination . . . because the audit found an attempt to defraud 

NMSU,” id. Their conclusory allegation that Dr. Robinson did not wait for the audit 

to make up his mind to recommend nonrenewal does not show that the Provost’s 

reliance upon the audit as the main reason to approve their nonrenewal was 

pretextual. Finally, they assert Dr. Olsen asked for the audit but do not explain how 

that was relevant to the Provost’s decision not to renew Dr. Bird’s and Dr. Moraros’s 

contracts. See id. 

 The Provost reviewed the report, met with the auditor, and determined the 

plaintiffs should be terminated from their teaching contracts for attempted fraud. 

Dr. Bird and Dr. Moraros’s argument is insufficient to show pretext and is otherwise 

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so undeveloped and lacking in explanation as to how the district court erred that it is 

waived under Moore, 195 F.3d at 1180 n.17, and Sports Racing Servs., Inc. v. Sports 

Car Club of Am., Inc., 131 F.3d 874, 880 (10th Cir. 1997). 

4. NMSU’s Reasons for the Nonrenewal of Dr. Bird’s and Dr. Moraros’s 

Teaching Contracts Were Pretextual Because the Non-Minority Comparator 

Was Not Terminated After a Finding of Fraud 

 Dr. Bird and Dr. Moraros’s fourth argument challenging their nonrenewal is 

set out in two paragraphs. Aplt. Opening Br. at 38-39. They argue that Mary Hoke, 

a non-minority faculty member in the same college, see id. at 38, was found to have 

attempted fraud, but was not terminated. In the first paragraph of their argument, 

plaintiffs assert, “the District Court found, because Hoke’s fraud concerned a grant, 

she was subject to different rules than Bird and Moraros.” Id. at 38. They then cite 

to two pages of evidence, Aplt. App. Vol. VII at 2291, 2316, and two pages of the 

district court’s order in Doc. 426, id. Vol. V at 1559-60, but say nothing more about 

the district court’s two-page analysis. 

 Plaintiffs’ argument suffers from two main problems. First, the court did not 

state that Ms. Hoke was subject to different rules because her fraud concerned a 

grant. See Aplt. App. Vol. V at 1559-60. Second, the court focused on plaintiffs’ 

failure (1) to produce evidence of NMSU’s disciplinary policy or (2) to produce 

evidence showing that they and Ms. Hoke should have been treated the same, even 

though their duplicate request was for approximately $800, whereas Ms. Hoke’s 

attempted fraud involved a minimal amount. See id. at 1560. Plaintiffs do not 

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address the court’s reasoning. They cite Smothers v. Solvay Chemicals, Inc., 740 

F.3d 530, 540-42 (10th Cir. 2014), but do not explain why, and their conclusory 

assertion that “Hoke was an appropriate comparator,” Aplt. Opening Br. at 38, is both 

unexplained and unsupported by any cites to the law or the evidence, see id. at 38-39. 

Plaintiffs’ argument is therefore insufficient to show pretext or waived as 

unsupported, see Moore, 195 F.3d at 1180 n.17, and because they failed to challenge 

the district court’s reasoning, see Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 

2011). In any event, plaintiffs have not shown the district court erred. 

5. NMSU’s Reasons for the Nonrenewal of Dr. Bird’s and Dr. Moraros’s 

Teaching Contracts Were Pretextual Because Dr. Robinson and Dr. Olsen 

Made Racist Remarks Against Dr. Bird and Dr. Moraros 

 Dr. Bird and Dr. Moraros’s fifth argument challenging the termination of their 

teaching contracts is set out in two and a half pages and has two parts, one relating to 

their discrimination claims and the other to their retaliation claims. Aplt. Opening 

Br. at 39-41. They argue that NMSU’s reasons for their nonrenewal were a pretext 

for discrimination and retaliation because Dr. Robinson and Dr. Olsen made racist 

remarks. As with most of plaintiffs’ arguments, their deficient appellant briefing 

forestalls this one. 

First, Dr. Bird and Dr. Moraros argue Dr. Robinson and Dr. Olsen made racist 

remarks that show a pretext for discrimination because these defendants influenced 

the decision not to renew their teaching contracts. They contend Dr. Robinson 

recommended to the Provost that their contracts not be renewed, and Dr. Olsen 

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started the process by requesting the internal audit of their duplicate vouchers that led 

to the Provost’s decision to nonrenew. The statements attributed to these defendants 

and quoted in plaintiffs’ brief are patently offensive. The issue here, however, is 

whether plaintiffs have shown the district court erred in failing to find pretext. 

 In their brief, Dr. Bird and Dr. Moraros cite only one district court order, 

Doc. 426, and it addressed their allegations only against Dr. Robinson, not Dr. Olsen. 

See Aplt. App. Vol. V at 1560-63. Plaintiffs do not specify where this issue was 

raised and ruled on in the district court as to Dr. Olsen, contrary to 

10th Cir. R. 28.2(C)(2).8

 Because plaintiffs have not challenged on appeal a district 

court order that addressed Dr. Olsen’s inappropriate remarks, under well-established 

standards of appellate review we do not consider this fifth argument against NMSU 

based on his remarks. Even if we did, plaintiffs have not shown that Dr. Olsen 

intended to influence or did influence the Provost’s decision to terminate. See Crowe 

 8

 Plaintiffs cite evidence of his inappropriate remarks that they attached to 

their February 27, 2009 Response (“Doc. 52”) to Defendant Larry Olsen’s Motion for 

Summary Judgment on Qualified Immunity of January 8, 2009 (“Doc. 20”). See

Aplt. Opening Br. at 40. The district court denied that motion in its Memorandum 

Opinion and Order of November 13, 2009 (“Doc. 109”). That order is not on appeal. 

Dr. Bird and Dr. Moraros also cite evidence of Dr. Olsen’s offensive remarks 

that they attached to their Response (“Doc. 475”) to the Motion for Summary 

Judgment by Larry Olsen, James Robinson, and the Regents of New Mexico State 

University on the Remaining Claims of Plaintiffs Bird and Moraros of February 22, 

2013 (“Doc. 455”). See Aplt. Opening Br. at 40. The district court granted that 

motion in part in its Memorandum Opinion and Order Granting in Part Defendants’ 

Motion for Summary Judgment on the Remaining Claims of Plaintiffs Bird and 

Moraros of July 3, 2013 (“Doc. 498”). Dr. Bird and Dr. Moraros do not, however, 

cite Doc. 498 in this fifth argument on appeal or assert any error in the district court’s 

reasoning in that order. See Aplt. Opening Br. at 40. 

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v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (noting the Supreme 

Court’s holding that where a supervisor “performs an act motivated by discriminatory 

animus intending to cause an adverse employment decision, the employer will be 

liable if that act is a proximate cause of the eventual adverse employment decision”) 

(citing Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011)). 

 In the district court, Dr. Bird and Dr. Moraros presented four comments made 

by Dr. Robinson. The district court addressed each of them in Doc. 426, explaining 

why the remarks either did not show discrimination or did not relate to plaintiffs’ 

nonrenewal. See Aplt. App. Vol. V at 1561-63. Contrary to plaintiffs’ unsupported 

assertion on appeal, the court did not simply reject the comments as “irrelevant ‘stray 

remarks.’” Aplt. Opening Br. at 39. 

 On appeal, plaintiffs refer to only one exchange between Dr. Robinson and 

Dr. Bird. Id. at 41. Dr. Bird asserted he told her, “We need to bring in more of our 

kind into this — into this school,” and when she asked what he meant, he said, 

“You’re smart for a black girl. You can figure it out.” Aplt. App. Vol. IV at 1274 

(Bird depo. 67:15-67:22) (internal quotation marks omitted). The district court noted 

Dr. Bird had said Dr. Robinson made the remarks when he first met her but she had 

otherwise failed to specify when the comments were made. Id. Vol. V at 1562. The 

court concluded she had failed to provide enough information to show a nexus 

between Dr. Robinson’s offensive comments and her nonrenewal. Id. (citing Rea v. 

Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994)). Dr. Bird and 

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Dr. Moraros do not mention or challenge the district court’s reasons for concluding 

this evidence did not establish pretext as to their discrimination claim. See Aplt. 

Opening Br. at 41. As a result, their challenge on appeal to the district court’s 

conclusion is insufficient or waived under Reedy, 660 F.3d at 1275; Sports Racing 

Services, 131 F.3d at 880; and Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 

1995). 

 In the second part of their fifth argument, Dr. Bird and Dr. Moraros assert the 

district court later refused, under the law of the case doctrine, to consider 

Dr. Robinson’s and Dr. Olsen’s remarks as showing pretext as to their retaliation 

claims. See Aplt. Opening Br. at 39 (citing Doc. 426, Aplt. App. Vol. V at 1568). 

But the cited order says nothing about the law of the case doctrine, and the court, in 

fact, declined to rule on the retaliation claim. See Aplt. App. Vol. V at 1568-69. The 

district court did discuss and apply the law of the case doctrine in a subsequent order, 

Doc. 498, when it assessed Dr. Bird’s and Dr. Moraros’s retaliation claims against 

Dr. Robinson and Dr. Olsen. See id. Vol. VII at 2558-60. But plaintiffs neither cite 

Doc. 498 on appeal nor challenge the district court’s reasoning in that order. 

Plaintiffs accordingly have not shown the district court erred. 

6. NMSU’s Reasons for Rescinding Dr. Bird’s and Dr. Moraros’s Admission to 

the School of Social Work Post-Nonrenewal Were Pretextual Because They 

Were Singled Out for an Audit of Their Credentials 

 Dr. Bird and Dr. Moraros argue that the district court erred by concluding 

there was no factual issue as to whether the 2008 audit of their credentials conducted 

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by then-Registrar Michael Zimmerman was part of a larger audit of all graduate 

students, and that NMSU’s rescission of their admission to NMSU’s School of Social 

Work after their teaching contracts were nonrenewed was therefore a pretext for race 

discrimination and retaliation. See Aplt. Opening Br. at 41-42. 

 The district court found it undisputed that NMSU audited all graduate 

admissions files for 2008, including those of Dr. Bird and Dr. Moraros, and letters 

regarding delinquencies in applications were sent to a number of admittees, including 

Dr. Bird and Dr. Moraros. Aplt. App. Vol. VII at 2567. Dr. Bird and Dr. Moraros 

argue on appeal they were singled out for audit rather than caught up in a larger audit 

of graduate credentials in 2008. Aplt. Opening Br. at 41-42. They include a single 

cite to Doc. 498, where the district court provided six pages of analysis of the parties’ 

evidence concerning the 2008 audit of graduate admissions files. Id. at 42 (citing 

Aplt. App. Vol. VII at 2563-68). Although Dr. Bird and Dr. Moraros’s single record 

cite is to all six pages, they do not explain what reasoning on those pages is in error. 

 The district court reviewed defendants’ evidence showing that responsibility 

for graduate admissions had been given for the first time in a reorganization to the 

Office of University Admissions, which determined in 2008 that it was necessary to 

audit all of the graduate files, as that office had done a couple of years earlier for the 

undergraduate files. Aplt. App. Vol. VII at 2563, 2567. The court further pointed 

out that Dr. Bird and Dr. Moraros had presented no evidence that they were singled 

out for an audit. Id. at 2567. 

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 Dr. Bird and Dr. Moraros do not mention or challenge any of the district 

court’s reasoning; they merely acknowledge generally the court’s conclusion that 

their credentials were checked as part of a larger audit. See Aplt. Opening Br. at 41-

42. They do not show they cited evidence to the district court that they were singled 

out for an audit of their credentials, nor do they present any such evidence on appeal. 

See id. Their argument is insufficient or waived due to their failure to develop it, 

see Moore, 195 F.3d at 1180 n.17, and to explain how the court erred in its reasoning, 

see, e.g., Reedy, 660 F.3d at 1275; Sports Racing Servs., 131 F.3d at 880. Plaintiffs 

have not shown the district court erred. 

7. NMSU’s Reasons for Rescinding Dr. Bird’s and Dr. Moraros’s Admissions to 

the School of Social Work Post-Nonrenewal Were Pretextual Because They 

Had Already Provided Information to Support Admission 

 Dr. Bird and Dr. Moraros argue the district court erred by concluding they 

could have provided more information about their credentials to NMSU during the 

2008 audit than they did provide. Aplt. Opening Br. at 42. They assert they provided 

their medical school transcripts from “UACJ,” a university in Juarez, Mexico, to 

NMSU when they were first admitted to NMSU in 2002, and “[t]hey provided the 

same information again when asked,” so a jury could find that NMSU’s rescission of 

their admission to the School of Social Work was a pretext for discrimination and 

retaliation. Id. 

 Dr. Bird and Dr. Moraros cite “Appx. V 1568,” id., which was probably 

intended to be a cite to Doc. 498, Aplt. App. Vol. VII at 2568. In that order, the 

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district court pointed out that Dr. Bird’s and Dr. Moraros’s final medical school 

transcripts were not found in NMSU’s files during the 2008 audit, that Dr. Bird and 

Dr. Moraros were asked to submit final transcripts, and that they refused to provide 

their transcripts again, even though final transcripts were required for admission to 

NMSU’s graduate program. Id. at 2567-68. The court concluded Dr. Bird and 

Dr. Moraros had not shown that NMSU’s reason for rescinding their admission to the 

School of Social Work was a pretext for discrimination. Id. at 2568. 

 Dr. Bird and Dr. Moraros do not mention or challenge the district court’s 

reasoning, nor do they contest they were asked to provide copies of their medical 

school transcripts during the audit of their credentials. They cite the declarations 

they had submitted to the district court, see Aplt. Opening Br. at 42, but those 

declarations show that although they had provided medical school transcripts to 

NMSU in 2002, they provided only letters from UACJ in 2008, see Aplt. App. 

Vol. VI at 2116, ¶ 23 (Dr. Moraros’s declaration); 2123, ¶ 23 (Dr. Bird’s 

declaration). This contradicts plaintiffs’ argument on appeal that they could not have 

provided more information about their credentials in 2008. 

In short, plaintiffs were required to provide their transcripts in 2008, they point 

to no evidence they did so, and they accordingly have not shown error. Their 

argument is otherwise waived as unsupported, see Utahns for Better Transp. v. U.S. 

Dep’t of Transp., 305 F.3d 1152, 1169 (10th Cir. 2002) (holding that an argument 

consisting entirely of conclusory statements and unhelpful citations was deemed 

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waived for failure to brief); Moore, 195 F.3d at 1180 n.17, and due to their failure to 

challenge the district court’s reasoning, see Reedy, 660 F.3d at 1275; Sports Racing 

Servs., Inc., 131 F.3d at 880. Plaintiffs have not shown the district court erred. 

8. NMSU’s Reasons for Threatening to Revoke Dr. Bird’s and Dr. Moraros’s 

NMSU Graduate Degrees Were Pretextual 

 The district court granted summary judgment to NMSU, Dr. Robinson, and 

Dr. Olsen on Dr. Bird and Dr. Moraros’s claim that these defendants threatened to 

revoke their NMSU graduate degrees on the ground that these alleged unrealized 

threats did not constitute an adverse employment action under the circumstances of 

this case. See Memorandum Opinion and Order Granting Defendants’ Motion for 

Summary Judgment on Plaintiffs Bird and Moraros’s Claims of Retaliation as a 

Result of a Memorandum Being Submitted With Allegedly False Allegations Against 

Plaintiffs and Alleged Threats to Revoke Degrees of February 14, 2014 (“Doc. 513”); 

Aplt. App. Vol. VIII at 2711-13. Although Doc. 513 is one of the orders plaintiffs 

have appealed, Dr. Bird and Dr. Moraros do not cite it anywhere in the argument 

section of their opening brief. Their argument here consists of a two-sentence 

paragraph with two case citations and no assertions of fact. Aplt. Opening Br. at 42. 

It does not address the district court’s reasoning or explain why they think the district 

court erred. Their argument is plainly insufficient to show a triable issue on pretext 

and is otherwise waived as conclusory and unsupported, Utahns for Better Transp., 

305 F.3d at 1169; Moore, 195 F.3d at 1180 n.17, and because they fail to challenge 

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the district court’s reasoning, see Reedy, 660 F.3d at 1275. Dr. Bird and Dr. Moraros 

have not shown the district court erred. 

9. Dr. Robinson and Dr. Olsen Were Directly Involved In and Are Liable for 

the Nonrenewal of Dr. Bird’s and Dr. Moraros’s Teaching Contracts 

 Dr. Bird and Dr. Moraros argue generally they presented sufficient evidence 

that Dr. Robinson’s and Dr. Olsen’s actions against them were discriminatory and 

retaliatory. Aplt. Opening Br. at 43. They do not cite to the factual record or to any 

district court order in making this one-paragraph argument. They have not 

demonstrated any triable issue and their argument is otherwise waived due to 

inadequate development, see Moore, 195 F.3d at 1180 n.17, and their failure to 

challenge the district court’s reasoning, see Reedy, 660 F.3d at 1275. Plaintiffs have 

not shown the district court erred. 

10. Dr. Robinson and Dr. Olsen Were Biased Against Dr. Bird and Dr. Moraros

 Dr. Bird and Dr. Moraros assert their claims for race discrimination and 

retaliation against NMSU should be tried under Staub v. Proctor Hospital, 562 U.S. 

411 (2011), because Dr. Robinson and Dr. Olsen harbored racial and retaliatory 

animus toward them and proximately caused their nonrenewal, even though the 

Provost made the actual decision. Aplt. Opening Br. at 44-46; see also id. at 39-41. 

This is a “cat’s paw” argument, although plaintiffs never use those words, “meaning 

that [they] sought to hold [their] employer liable for the animus of a supervisor who 

was not charged with making the ultimate employment decision.” Staub, 562 U.S. 

at 415. This argument is similar to their fifth argument and fails for similar reasons. 

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 The first paragraph of plaintiffs’ argument contains their only cites to a district 

court order, which is Doc. 426. Plaintiffs assert that “[a]fter excluding the race-based 

comments of Robinson and Olsen as ‘stray remarks,’ the District Court found there 

was no evidence that either Robinson or Olsen were biased.” Aplt. Opening Br. at 44 

(citing Aplt. App. Vol. V at 1549-51, 1560-65). As we have already explained, 

however, in the cited order (Doc. 426), the district court addressed their claim only 

with respect to offensive remarks made by Dr. Robinson, and the court did not reject 

the allegations against him as “stray remarks.” See Aplt. App. Vol. V at 1561-63. 

 Plaintiffs do not challenge the district court’s analysis of their cat’s paw 

argument as to Dr. Robinson, so their argument is waived under Reedy, 660 F.3d 

at 1275. The court did not evaluate any evidence regarding Dr. Olsen in the cited 

order, see Aplt. App. Vol. V at 1563-65, and, as noted above, plaintiffs have not 

otherwise discussed any district court analysis of Dr. Olsen’s remarks. 

11. Dr. Robinson and Dr. Olsen Proximately Caused Dr. Bird’s and 

Dr. Moraros’s Nonrenewal, so NMSU Is Liable 

 As explained above, Dr. Bird and Dr. Moraros have not attempted to show the 

district court erred in rejecting their evidence that Dr. Robinson was biased against 

them, and Dr. Bird and Dr. Moraros have not cited to or discussed any district court 

analysis of Dr. Olsen’s remarks. As a result, we need not consider their argument 

that such alleged bias was the proximate cause of their nonrenewal: the argument 

against Dr. Robinson lacks the necessary foundation, see Moore, 195 F.3d at 1180 

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n.17, and the argument against Dr. Olsen does not challenge a district court order that 

addressed his inappropriate remarks, see Reedy, 660 F.3d at 1275. 

12. Mr. Gallagher Is Liable for Retaliation Against Dr. Bird and Dr. Moraros 

Based on His Speech to the Press 

 Finally, Dr. Bird and Dr. Moraros argue their claims for First Amendment 

retaliation against then-President of NMSU’s Board of Regents Robert Gallagher 

should be tried, because there was sufficient evidence that he spread negative 

information about them because of their public speech on matters of public concern. 

Aplt. Opening Br. at 46-47. 

 The court granted summary judgment to Mr. Gallagher based on qualified 

immunity in the Memorandum Opinion and Order Granting Defendant Gallagher’s 

Motion for Summary Judgment Based on Qualified Immunity of April 17, 2013 

(“Doc. 481”), Aplt. App. Vol. V at 2442-48, which is not cited in the argument 

section of plaintiffs’ opening brief. Applying the modified qualified immunity 

analysis to this First Amendment claim, the court said Mr. Gallagher had made his 

prima facie showing that his speaking to the press was objectively reasonable and 

that Dr. Bird and Dr. Moraros failed to carry their subsequent burden to show 

Mr. Gallagher’s culpable state of mind. Id. at 2446-47. Plaintiffs do not argue on 

appeal that they did produce evidence of Mr. Gallagher’s culpable state of mind, and 

they do not adequately present any now. Their appeal fails for insufficient argument 

and evidence or is waived due to inadequate development, see Moore, 195 F.3d 

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at 1180 n.17, and their failure to address the district court’s reasoning, see Reedy, 

660 F.3d at 1275. Plaintiffs have not shown the district court erred. 

B. Mr. Cheteni

 Mr. Cheteni’s arguments appear at pages 47-54 of the opening brief. The 

claims under review on appeal are interrelated and consist of Mr. Cheteni’s claims 

against Mr. Zimmerman for First Amendment retaliation under 42 U.S.C. § 1983 and 

for retaliation for making discrimination claims under 42 U.S.C. §§ 1981 and 1983, 

and his claims against NMSU under Title VI, Title VII, and the New Mexico Human 

Rights Act (NMHRA). See Aplt. Opening Br. at 48, 52. 

13. Mr. Zimmerman’s Actions Were Not Objectively Reasonable, so He Is Not 

Entitled to Qualified Immunity on Mr. Cheteni’s Retaliation Claims 

 One of Mr. Cheteni’s claims against NMSU stems from Mr. Zimmerman’s 

decision to charge him out-of-state tuition instead of in-state tuition for the Fall 2008 

semester. Mr. Cheteni argues that Mr. Zimmerman was not entitled to qualified 

immunity on either his claim for retaliation based on race under § 1981 or his claim 

for retaliation based on speech protected by the First Amendment under § 1983. 

Aplt. Opening Br. at 52-54. Because Mr. Cheteni does not show that the district 

court erred in concluding Mr. Zimmerman did not violate § 1981 or § 1983, we 

affirm. 

 Mr. Zimmerman, the Registrar, granted Mr. Cheteni in-state tuition when he 

enrolled at NMSU in 2007 because of his 2006 application for asylum. Aplt. App. 

Vol. V at 1582. After Mr. Cheteni filled out an application in March 2008 for 

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admission to a Ph.D. program in the College of Business listing his visa status as F-1 

(foreign student), NMSU’s Graduate Admissions Office (not the Registrar’s Office) 

changed his tuition rate to out-of-state. Id. at 1583. When Mr. Cheteni inquired 

about the change, Mr. Zimmerman asked Mr. Cheteni to provide documentation that 

he was still on asylum status. Id. Mr. Zimmerman later asked Mr. Cheteni for a copy 

of his I-589 (the confirmation of receipt of his 2006 asylum application) based on an 

email dated July 31, 2008, from Mary Jaspers, the assistant director of the Office of 

Admissions, stating that Mr. Cheteni should be able to provide it. Id.; see also id.

Vol. III at 885. Ms. Jaspers’s email also informed Mr. Zimmerman that the code on 

Mr. Cheteni’s work authorization card indicated that he had filed an application for 

asylum. Id. Vol. V at 1583; see also id. Vol. III at 885. Her email did not say 

whether the code indicated it was still pending. See id. Vol. III at 885. Mr. Cheteni 

provided Mr. Zimmerman his I-589 and work authorization card for 2008-2009, but 

Mr. Zimmerman decided this documentation was insufficient to demonstrate that his 

2006 asylum application was still pending and, therefore, that Mr. Cheteni should pay 

out-of-state tuition for the Fall 2008 semester. 

 The district court granted summary judgment to Mr. Zimmerman on the instate tuition issue, based on qualified immunity, in its Memorandum Opinion and 

Order Granting Defendant Zimmerman’s Revised Motion for Summary Judgment of 

November 20, 2012 (“Doc. 437”), using the modified qualified immunity analysis 

that applies when motive is an issue. Id. Vol. V at 1578-86. The court held that 

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Mr. Zimmerman had “made a prima facie showing of the objective reasonableness of 

his conduct,” but that Mr. Cheteni had “produced no specific evidence that 

Zimmerman was substantially motivated by a desire to discriminate or retaliate 

against Cheteni,” and the court would “not comb the record” to look for such 

evidence. Id. at 1586. It thus concluded that Mr. Zimmerman had not violated 

§ 1981 and § 1983. 

 Mr. Cheteni argues on appeal that Mr. Zimmerman’s conduct was not 

objectively reasonable and his qualified immunity defense should have failed. Aplt. 

Opening Br. at 52-53. He provides one cite to three pages of the district court’s order 

in Doc. 437. Id. at 52 (citing Aplt. App. Vol. V at 1584-86). The court, however, 

analyzed the relevant law and the parties’ evidence in nine pages, see Aplt. App. 

Vol. V at 1578-86, which Mr. Cheteni does not address. 

 Mr. Cheteni argues that “Zimmerman wanted a new I-589, but none existed,” 

and that “Zimmerman’s insistence on a new I-589 created a Catch 22 for Cheteni, he 

could not comply.” Aplt. Opening Br. at 53. He also asserts that Ms. Jaspers 

testified she did not tell Mr. Zimmerman that Mr. Cheteni could produce a new 

asylum application or a new form I-589. Id. These unsupported assertions do not 

address the district court’s analysis, however. The district court pointed out that 

although Mr. Zimmerman expected a new asylum petition, he also made a general 

request for documentation showing that Mr. Cheteni’s 2006 asylum application was 

still pending, yet “Cheteni did not submit any documentation that his asylum petition 

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was still pending.” Aplt. App. Vol. V at 1584. Mr. Cheteni does not show that the 

documentation he had already produced, i.e., his I-589 and work authorization card, 

established that his asylum application was still pending in 2008. The district court 

noted that Ms. Jaspers’s email stated only that the code on his work authorization 

card showed that he had filed an asylum application, not that it was still pending. See

id. at 1585; see also id. Vol. III at 885. 

 Mr. Cheteni also argues that Mr. Zimmerman believed that asylum 

applications were typically decided within two years and that Mr. Zimmerman did 

not produce evidence of the website upon which he allegedly relied for that 

information. Aplt. Opening Br. at 52-53. But Mr. Cheteni does not explain how 

Mr. Zimmerman’s failure to prove the existence of the website upon which he relied 

shows that it was objectively unreasonable for him to believe that Mr. Cheteni should 

be able to provide some kind of documentation that his asylum application was still 

pending in 2008. Mr. Cheteni argues the facts he considers relevant to 

Mr. Zimmerman’s “objective reasonableness” without reference to what the district 

court said about the evidence and without explaining how the court is supposed to 

have erred. 

 Mr. Cheteni also asserts that “Zimmerman’s conduct was based on retaliatory 

animus” because he “demanded new documents within a month of Cheteni filing an 

EEOC charge and closely following numerous communications Cheteni had with the 

press regarding what he perceived to be discrimination and retaliation at NMSU.” 

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Aplt. Opening Br. at 53. Mr. Cheteni appears to argue on appeal that he produced 

sufficient evidence of Mr. Zimmerman’s culpable state of mind to defeat his qualified 

immunity defense. But he offers no specific facts about these events, does not show 

that Mr. Zimmerman knew about his EEOC charge or his communications with the 

press, and fails to support his allegations with citations to the record. See id. And to 

the extent he asserts any facts, Mr. Cheteni provides no record cites to support them. 

See Aplt. Opening Br. at 53. 

 Mr. Cheteni’s arguments are waived as conclusory, unsupported, and 

undeveloped, see Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 

1169 (10th Cir. 2002) (holding that an argument consisting entirely of conclusory 

statements and unhelpful citations was deemed waived for failure to brief); Moore, 

195 F.3d at 1180 n.17 (“We do not consider unsupported and undeveloped issues.”), 

and because Mr. Cheteni fails to explain how the court’s reasoning is in error, 

see Reedy, 660 F.3d at 1275; Sports Racing Servs., Inc. v. Sports Car Club of Am., 

Inc., 131 F.3d 874, 880 (10th Cir. 1997). Mr. Cheteni has not otherwise shown the 

district court erred in granting qualified immunity to Mr. Zimmerman on the ground 

that no § 1981 or § 1983 violation was shown. We turn to Mr. Cheteni’s arguments 

against NMSU. 

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14. NMSU’s Reasons for Revoking Mr. Cheteni’s In-State Tuition Were 

Pretextual Because He Sufficiently Demonstrated to Mr. Zimmerman His 

Asylum Application Was Still Pending 

 Mr. Cheteni argues NMSU is liable for race discrimination and retaliation on 

account of Mr. Zimmerman’s decision to revoke his in-state tuition. Aplt. Opening 

Br. at 47, 50-52. He argues his tuition status was improperly reconsidered when “he 

listed his visa status on a university document as F-1 [foreign student].” Id. at 50. 

He further contends his 2006 asylum application and then-current work authorization 

card should have been sufficient documentation to demonstrate to Mr. Zimmerman 

that his asylum application was still pending and his in-state tuition should continue. 

 His brief cites only one page in Doc. 437, Aplt. App. Vol. V at 1582, and one 

page in the district court’s Memorandum Opinion and Order Granting Defendants’ 

Motion for Summary Judgment on Plaintiff Cheteni’s Remaining Claims of July 2, 

2013 (“Doc. 496”), Aplt. App. Vol. VII at 2551. The brief fails to address the district 

court’s analysis of the revocation of Mr. Cheteni’s in-state tuition, which covers 

seven pages in Doc. 437, Aplt. App. Vol. V at 1580-86 (on Mr. Zimmerman’s motion 

for summary judgment), and two more in Doc. 496, Aplt. App. Vol. VII at 2550-51 

(on NMSU’s motion for summary judgment). Mr. Cheteni does not mention or 

challenge the district court’s extensive analysis of the law and the evidence. See

Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1128 n.6 (10th Cir. 1999) 

(noting that broad, conclusory arguments may be waived on appeal). 

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 Aside from the deficiencies of Mr. Cheteni’s brief, we already have rejected 

his argument that Mr. Zimmerman should not have been granted qualified immunity 

for his decision to revoke Mr. Cheteni’s in-state tuition. Because we uphold the 

district court’s determination that Mr. Cheteni cannot prove the first prong of 

qualified immunity against Mr. Zimmerman—no § 1981 or § 1983 violation—NMSU 

cannot be found liable. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 852 

(10th Cir. 2000) (stating that an employer’s liability under Title VII is coextensive 

with an employee’s liability under § 1981). 

15. NMSU Is Liable for Retaliation Because Mr. Zimmerman’s Reasons for 

Reporting Mr. Cheteni’s Loss of Student Status to Immigration Officials 

Violated a Prior Court Order 

 Mr. Cheteni argues in one paragraph that NMSU is liable for retaliating 

against him because Mr. Zimmerman reported his failure to maintain his F-1 student 

status to immigration officials after he was unable to enroll for the Spring 2009 

semester. Aplt. Opening Br. at 51-52. He argues Mr. Zimmerman’s report violated a 

prior court order in this case giving him until August 2009 to demonstrate he was 

eligible for in-state tuition because his asylum claim was still pending. Id. at 52. 

 Mr. Cheteni cites the district court’s Order Adopting Magistrate Judge’s 

Proposed Findings and Recommended Disposition (Doc. 51) of March 19, 2009 

(“Doc. 66”), Aplt. App. Vol. I at 277, an early, one-page order adopting the 

magistrate judge’s recommendation to deny Mr. Cheteni’s motion for emergency 

injunctive relief. This order says nothing about enrollment or any substantive matter. 

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The magistrate judge’s Proposed Findings and Recommended Disposition of 

February 25, 2009 (“Doc. 51”), noted the parties’ agreement to remove Mr. Cheteni’s 

out-of-state tuition charges for the Fall 2008 semester and allow him to pay in-state 

tuition for the Fall 2009 semester if he was able to obtain evidence by August 2009 

showing that his asylum application was still pending in July 2008. Id. at 255. This 

four-page recommendation says nothing about Mr. Cheteni’s lack of student status 

during the Spring 2009 semester or any agreement that NMSU would not report him 

as out of student status to immigration officials, see id. at 253-56, and Mr. Cheteni 

does not cite or discuss it on appeal, see Aplt. Opening Br. at 51-52. 

 Mr. Cheteni asserts that Mr. Zimmerman’s actions in reporting him to 

immigration officials could be viewed as punishing him for protected activity, but he 

does not explain either the nature of the activity or why it is protected. See id. at 52. 

He may mean his “EEOC charge and . . . [the] numerous communications [he] had 

with the press,” id. at 53, but he offers neither specific facts about these activities nor 

record cites in support, see id. 

 The court decided Mr. Cheteni’s reporting issue in Doc. 437, Aplt. App. 

Vol. V at 1579-80, 1587-89 (on Mr. Zimmerman’s motion for summary judgment), 

and Doc. 496, Aplt. App. Vol. VII at 2550-51 (on NMSU’s motion for summary 

judgment). Mr. Cheteni neither mentions nor challenges these orders or the district 

court’s reasoning, so his “reporting” issue is waived. See Reedy, 660 F.3d at 1275. 

He has not shown the district court erred. 

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16. NMSU’s Reasons for Nonrenewal of Mr. Cheteni’s Graduate Assistantship 

Were Pretextual Because Dr. Arnold Knew That He Was Enrolled in the 

Department of Health Sciences 

 Mr. Cheteni argues his claims for race discrimination and retaliation against 

NMSU should be tried because sufficient evidence showed the reason given by 

Stephen Arnold, then-Interim Head of the Department of Health Sciences, for not 

renewing his graduate assistantship in the summer of 2008 was pretextual. Aplt. 

Opening Br. at 47-50. As discussed above, the elements of the prima facie case for 

race discrimination and retaliation claims differ, but the McDonnell Douglas burdenshifting analysis is the same for retaliation claims related to race discrimination 

claims. Mr. Cheteni argues that Dr. Arnold knew, from Mr. Cheteni’s email 

inquiring about his assistantship before the Fall 2008 semester began, that he was 

still enrolled in the Department of Health Sciences before assistantships were 

awarded. Id. at 48-49. 

 The district court concluded in Doc. 496 that graduate assistantships were 

reserved for majors in the College of Health and Social Services and that Mr. Cheteni 

was not enrolled in that college when Dr. Arnold checked applicants’ registrations 

before awarding assistantships. Aplt. App. Vol. VII at 2541. Mr. Cheteni cites the 

district court’s order, but he neither mentions nor challenges the court’s analysis of 

the parties’ evidence, and he does not cite any evidence showing when assistantships 

were awarded or that he was enrolled in the College of Health and Social Services 

before Dr. Arnold awarded assistantships. See Aplt. Opening Br. at 49. He asserts 

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that he emailed Dr. Arnold on July 19, 2008, to inquire about his assistantship. See

id. (citing Aplt. App. Vol. VII at 2429). Nevertheless, the pages he cites from 

Dr. Arnold’s deposition show that Dr. Arnold had information in early July that he 

was a full-time student in the College of Business. See Aplt. App. Vol. VII at 2429 

(Arnold depo. 122:21-124:22). 

 Mr. Cheteni does not provide a legal or factual basis to overcome the grant of 

summary judgment to NMSU on account of Dr. Arnold’s actions. Also, because he 

does not confront the district court’s analysis, his challenge to the court’s conclusion 

is waived. See Reedy, 660 F.3d at 1275; Sports Racing Servs., 131 F.3d at 880. He 

has not shown the district court erred. 

17. Mr. Cheteni’s Claims Against NMSU Under Title VI, Title VII, and NMHRA 

Should Be Tried Because the District Court Applied the Wrong Legal 

Standard 

 Mr. Cheteni argues, in one paragraph, that the district court erred in assessing 

his claims for race discrimination and retaliation against NMSU under 42 U.S.C. 

§ 1981 because he asserted his claims against NMSU under Title VI, Title VII, and 

the New Mexico Human Rights Act (NMHRA). Aplt. Opening Br. at 47-48. His 

only cite to a district court order is to one page in Doc. 496, where the court 

discussed Mr. Cheteni’s claim that NMSU is liable for Mr. Zimmerman’s revocation 

of his in-state tuition and for reporting his lack of student status to immigration 

officials. Id. (citing Aplt. App. Vol. VII at 2551). We therefore limit our 

consideration to these claims. 

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 The district court erred by assessing Mr. Cheteni’s claim under § 1981 because 

Mr. Cheteni did not assert a § 1981 claim against NMSU,9

 but this error is harmless. 

Mr. Cheteni does not explain how analyzing his claim under Title VI, Title VII, or 

the NMHRA would be different from analyzing it under § 1981 to show that the 

district court should have reached a different conclusion. See Aplt. Opening Br. 

at 47-48. Accordingly, Mr. Cheteni does not argue or show that he was prejudiced by 

the alleged error. See id. 

 We can affirm the court’s conclusion that NMSU was entitled to summary 

judgment based on our having affirmed the district court’s summary judgment in 

favor of Mr. Zimmerman regarding his decision to revoke Mr. Cheteni’s in-state 

tuition and to report his lack of student status to immigration officials. “The issue of 

[NMSU’s] liability under Title VII is coextensive with Mr. [Zimmerman’s] liability 

under § 1981 . . . [because these claims] are based on the same facts.” Heno, 208 

F.3d at 852. In addition, NMSU “may act only through natural persons as its agents 

or employees.” Id. (internal quotation marks omitted). As a result, based on our 

previous conclusion that Mr. Cheteni has not shown the district court erred in holding 

 9

 Mr. Cheteni stated in the Stipulated List of Each Plaintiff’s Claims Against 

Each Defendant of December 13, 2012 (“Doc. 443”) that his remaining claims 

included “claims of race discrimination and retaliation pursuant to Title VI, Title VII, 

Section 1981 and NMHRA against NMSU.” Doc. 443, at 3. This document is not 

included in the appendix, but the district court noted the stipulation in Doc. 443 when 

it stated in Doc. 496 that Mr. Cheteni’s remaining claims against NMSU were 

brought under “Title VI, Title VII, Section 1981 and NMHRA.” Aplt. App. Vol. VII 

at 2524-25. The fourth amended complaint, however, shows that Mr. Cheteni did not 

assert a § 1981 claim against NMSU. See Aplt. App. Vol. III at 786-92. 

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that he had failed to establish that Mr. Zimmerman’s conduct violated his rights 

under § 1981, NMSU cannot be found liable under Title VII based on the same 

conduct. See Heno, 208 F.3d at 852. A Title VI claim would also fail, because it 

uses Title VII’s proof scheme. See Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 

928, 930 n.1 (10th Cir. 2003). And a NMHRA claim would fail as well because it 

uses the same standard as Title VII in a case, such as this one, alleging employment 

discrimination. See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 n.5 (10th Cir. 

2005). 

 Even though the district court addressed Mr. Cheteni’s claim against NMSU 

under § 1981, we may affirm its conclusion that NMSU is not liable for 

Mr. Zimmerman’s decision to revoke Mr. Cheteni’s in-state tuition on this alternate 

ground. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) 

(noting “we may affirm on any basis supported by the record, even if it requires 

ruling on arguments not reached by the district court or even presented to us on 

appeal”). In short, NMSU is not liable for Mr. Zimmerman’s revocation of his instate tuition. 

C. Dr. Rao

 Dr. Rao raises the remaining “issue” on appeal, arguing generally that 

NMSU’s reasons for failing to promote her to full professor in 2007 and 2009 were 

pretextual. Aplt. Opening Br. at 54-62. This general argument embodies four others: 

whether (a) Dr. Rao made out a prima facie case of discrimination in 2007, id. at 54-

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55; (b) Dr. Rao made out a prima facie case of discrimination in 2009, id. at 56-57; 

(c) Dr. Rao made out a prima facie case of retaliation in 2009, id. at 57-59; and 

(d) Dr. Rao presented sufficient evidence of pretext in her 2009 retaliation claim, id.

at 59-62. As with plaintiffs’ other arguments, however, Dr. Rao does not address the 

district court’s reasons for granting summary judgment to NMSU or explain how the 

district court erred. 

18. Dr. Rao Made a Prima Facie Showing of NMSU’s Discrimination in 2007 

 Dr. Rao first argues the district court incorrectly held she did not establish a 

prima facie case of discrimination based on NMSU’s failure to promote her to full 

professor in 2007. Id. at 54-55. She argued that she did not apply for promotion 

because it would have been futile without the approval of Dr. Robinson, the 

Chairman of the Department of Health Sciences, and he had told her that he would 

not support her. On appeal, she fails to support her argument’s key factual 

assertions, see Moore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir. 1999), and does 

not challenge the district court’s reasoning or explain how the court erred, see Reedy, 

660 F.3d at 1275; Sports Racing Servs., 131 F.3d at 880. In any event, we agree with 

the district court that Dr. Rao’s prima facie case depended on producing evidence to 

support her statement that the lack of Dr. Robinson’s recommendation would have 

doomed an application for promotion. 

 Dr. Rao contests the district court’s determination in its Memorandum Opinion 

and Order Granting Defendants’ Motion for Summary Judgment on Plaintiff Rao’s 

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Promotion Claim of April 25, 2013 (“Doc. 484”), that she had not demonstrated she 

would have been rejected for promotion to full professor for discriminatory reasons 

had she applied in 2007. See Aplt. Opening Br. at 55 (citing Aplt. App. Vol. VII 

at 2454-55). She had testified at her deposition that she needed Dr. Robinson’s 

support and that he would not give it to her. See id. at 54-55 (citing Aplt. App. 

Vol. VI at 2004). The court acknowledged Dr. Rao had stated the importance of 

having Dr. Robinson’s support, but pointed out she had produced no facts showing 

that her application for promotion would have been rejected without it. See Aplt. 

App. Vol. VII at 2454. Dr. Rao fails to recognize the court rejected her deposition as 

factual support on this point. See Aplt. Opening Br. at 55. Instead, she simply cites 

it again as her sole support for this argument on appeal. See id. Her failure to 

challenge the district court’s reasoning and explain how the court erred is insufficient 

to show pretext. Her arguments otherwise are waived under Reedy, 660 F.3d at 1275; 

Sports Racing Services, 131 F.3d at 880; and Hernandez v. Starbuck, 69 F.3d 1089, 

1093 (10th Cir. 1995). 

 Dr. Rao also argues Dr. Robinson held her to a higher standard for promotion 

to full professor than other non-East Indian faculty members by requiring her to have 

a higher level of grant support. See Aplt. Opening Br. at 54-55. To support this 

assertion, she cites her deposition, where she stated summarily that she was required 

to have a “R01 grant” that was not in the promotion and tenure guidelines. See Aplt. 

App. Vol. VI at 2004 (Rao depo. at 292:3-292:19). She said nothing, however, about 

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any other candidates for promotion or the requirements imposed upon them. See id. 

She cites the district court’s decision in Doc. 484, Aplt. App. Vol. VII at 2457, but 

does not explain why the court’s conclusion is wrong. 

 Dr. Rao further suggests that, in Doc. 484, the district court improperly 

rejected evidence that Dr. Robinson commented to her that “she was a ‘smart Indian 

woman’” rather than construe the comment in her favor. Aplt. Opening Br. at 55 

(citing Aplt. App. Vol. VII at 2454). The court rejected this comment as evidence of 

discrimination because she had produced no other facts to show it was 

discriminatory. Aplt. App. Vol. VII at 2454. Dr. Rao does not counter this 

conclusion with any facts or explanation. See Aplt. Opening Br. at 55. Dr. Rao has 

not shown the district court erred. 

19. Dr. Rao Made a Prima Facie Showing of NMSU’s Discrimination in 2009 

 Next, Dr. Rao argues the district court incorrectly held she did not establish 

her prima facie case showing NMSU discriminated against her when it failed to 

promote her to full professor in 2009. She argues the evidence showed she was 

qualified. Aplt. Opening Br. at 56-57. 

 Dr. Rao argues that, in Doc. 484, “[t]he District Court rejected Rao’s claim to 

be qualified [for promotion], relying on the fact that the individuals in the promotion 

process were 11-1 against Rao’s promotion; a process wherein decision makers were 

unable to identify any objective series of qualifications applied to Rao’s dossier.” Id.

at 56 (citing Aplt. App. Vol. VII at 2455-58). The district court set out the 

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requirements for Dr. Rao’s prima facie case, relying for its legal framework on 

Roebuck v. Drexel University, 852 F.2d 715, 726 (3d Cir. 1988), a case concerning 

tenure decisions. Aplt. App. Vol. VII at 2456. The court quoted Roebuck’s holding 

that a candidate must show it was debatable that she was qualified for advancement 

to establish a prima facie case. See id. (quoting Roebuck, 652 F.2d at 726). It 

summarized Dr. Rao’s evidence of the five-step formal promotion process for her 

2009 application, pointing out that only one reviewer out of twelve recommended 

that she be promoted. Id. at 2456-57. The court concluded that given “the near 

unanimous vote against her promotion,” she had not met the Roebuck standard. Id.

at 2457. 

 Dr. Rao does not challenge the court’s reasoning or its reliance on Roebuck, 

but refers instead to her need to prove her “objective” qualifications for the job. See

Aplt. Opening Br. at 56 (citing inter alia EEOC v. Horizon/CMS HealthCare Corp., 

220 F.3d 1184, 1193 (10th Cir. 2000)). But this reference to our case law on the 

prima facie case is made without any explanation or factual support and therefore 

does not show that the district court erred in its reasoning. She does not explain how 

she was objectively qualified for promotion when 11 out of 12 reviewers believed she 

was not qualified. 

 Dr. Rao also argues her qualifications were at least comparable to those of two 

non-East Indian faculty members who were promoted in 2000 and 2001, as well as to 

Dr. Robinson’s qualifications, who, she mistakenly asserts, was hired as a full 

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professor in 2007. Id. at 57. The court rejected her arguments in Doc. 484, Aplt. 

App. Vol. VII at 2457-58, 2461-62, which Dr. Rao does not cite on appeal. The court 

explained that Dr. Rao had not produced evidence that the same or very similar 

standards for promotion applied to her as well as to Dr. Robinson—who was hired in 

2007 as a department head, not promoted to full professor—and the two faculty 

members who were promoted to full professor in 2000 and 2001. Id. at 2457, 2462. 

The court noted Dr. Rao had not produced any evidence of a policy applicable to the 

hiring of department heads, and that the guidelines for her 2009 promotion 

application were issued in Fall 2001 and did not apply to the faculty members 

promoted in 2000 and 2001. Id. at 2457. The court added, in reliance on Roebuck, 

that comparators should be relatively near in time to the adverse action, but Dr. Rao’s 

application for promotion was denied in 2010, almost a decade after the other two 

faculty members were promoted. Id. at 2457-2458. 

 Dr. Rao acknowledges and does not challenge the court’s reliance on Roebuck

for this point. See Aplt. Opening Br. at 57. Rather, she asserts that the two faculty 

members promoted in 2000 and 2001 were the most recent promotions in the 

department and “were subject to evaluation on the same factors as Rao and there was 

no evidence that they were subject to different standards.” Id. In addition to lacking 

evidentiary support, this assertion reverses the burden of proof for a prima facie case. 

The argument is otherwise waived due to lack of support, see Moore, 195 F.3d 

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at 1180 n.17, and Dr. Rao’s failure to challenge the district court’s reasoning, see

Reedy, 660 F.3d at 1275. Dr. Rao has not shown the district court erred. 

20. Dr. Rao Made a Prima Facie Showing of NMSU’s Retaliation in 2009 

 Dr. Rao also argues that the district court incorrectly held she did not establish 

her prima facie case that NMSU retaliated against her by failing to promote her to 

full professor in 2009. She argues that the evidence showed a causal connection 

between NMSU’s adverse action and her protected activity. Aplt. Opening Br. at 57-

59. 

 The district court determined in Doc. 484 that Dr. Rao had satisfied the first 

two requirements of her prima facie case of retaliation: she had engaged in protected 

activity by filing EEOC charges of discrimination, complaining about discrimination, 

and speaking out against discrimination; and NMSU did not dispute that its failure to 

promote her was an adverse employment action. See Aplt. App. Vol. VII at 2451-52, 

2458. But because she did not present evidence sufficient to establish a causal 

connection between her complaints and the denial of her promotion application, the 

district court found that she did not satisfy the third and final requirement of her 

prima facie case. See id. at 2458-60. 

 As to a causal connection between the adverse action and her protected 

activity, Dr. Rao asserts only that Dr. Arnold, then-Interim Head of the Department 

of Health Sciences, told her “that things would improve for [her] if she withdrew her 

complaints.” Aplt. Opening Br. at 58. She concedes, however, that “Arnold was 

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removed from the review process for Rao’s promotion application.” Id. (citing Aplt. 

App. Vol. VII at 2459). 

Nonetheless, Dr. Rao asserts Dr. Arnold’s statement “shows the state of mind 

of university administration toward Rao[,] and Arnold was still interim Department 

Head, with power to influence decisions made in the department.” Id. She further 

asserts that Dr. Robinson and Dr. Arnold “took a variety of adverse actions against 

Rao close in time to her protected activity that negatively affected her ability to 

secure promotion.” Id. The problem with these assertions is that Dr. Rao fails to 

explain how Dr. Arnold speaks for the administration as a whole, fails to identify the 

adverse actions taken against her, and points to no factual support in the record, in 

any event. She therefore fails on appeal to show a causal connection between 

NMSU’s adverse action and her protected activity. 

 The district court listed and addressed the four specific adverse actions 

Dr. Rao raised below, which concerned her appointment to or removal from 

university committees and her pay for teaching a summer course. See Aplt. App. 

Vol. VII at 2459-60. The court concluded in Doc. 484 that Dr. Rao’s arguments did 

not concern the reasons the Executive Vice President gave for denying her a 

promotion—his expectation that she have more grant activity, more responsibility in 

the professional societies, and more publications. See id. at 2460. Dr. Rao does not 

mention or challenge this analysis. Her argument fails as conclusory and lacking in 

factual support, see Moore, 195 F.3d at 1180 n.17, and is otherwise waived because 

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she does not challenge the district court’s reasoning, see Reedy, 660 F.3d at 1275. In 

any event, Dr. Rao has not shown the district court erred. 

21. Dr. Rao Showed Pretext in her 2009 Retaliation Claim Against NMSU 

 Dr. Rao finally argues the evidence showed NMSU’s proffered reasons for 

failing to promote her to full professor in 2009 were a pretext for retaliation. Aplt. 

Opening Br. at 59-62. But because she fails to show the district court erred in 

concluding she did not establish a prima facie case of retaliation, we need not 

consider her argument that she showed pretext at the final step of the McDonnell 

Douglas analysis. 

VI. CONCLUSION 

 Based on our extensive review of plaintiffs’ briefs, the district court’s orders, 

and the whole record on appeal, plaintiffs’ arguments fail. See Nixon v. City & Cty. 

of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). Their selective presentation of the 

evidence ignores defendants’ evidence and even some of their own evidence that the 

district court thought worked against them. Although plaintiffs have mentioned some 

of the conclusions the district court made, they generally have not addressed or 

challenged the court’s extensive reasoning supporting its conclusions in the 14 orders 

they have appealed. In addition, many of plaintiffs’ factual assertions are not 

supported by any cite to the record and others are not supported or are even 

contradicted by the cites given. 

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 Plaintiffs’ arguments are conclusory, unsupported, and undeveloped; do not 

challenge the district court’s reasoning or explain how the district court erred; and/or 

were not raised in the district court. They are insufficient to overcome summary 

judgment or show the district court erred. 

 Affirmed. 

 Judge Kelly concurs in the judgment. 

 ENTERED FOR THE COURT 

 Scott M. Matheson, Jr. 

 Circuit Judge 

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