The district court also held that the dismissal of Perry's section 1981 racial discrimination claim was mandated by Perry's failure to produce any evidence of intentional discrimination. See Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994) ("Only intentional discrimination may violate section 1981."). It is well settled that a plaintiff can show intentional discrimination either by direct evidence of discrimination or by indirect evidence, employing the burden-shifting framework first articulated in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).⁽⁴⁾ See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999), petition for cert. filed, 67 U.S.L.W. 3718 (U.S. May 17, 1999) (No. 98-1854).

Perry argues that evidence of an existing discriminatory employment policy in the County Clerk's office is direct evidence that there was an illegal discriminatory motive underlying her termination. This argument is misplaced in light of the evidence before this court. In the line of cases referenced by Perry, the adverse employment action suffered by the plaintiff occurred as a direct result of the discriminatory policy. See, e.g., Trans World Airlines, Inc., 469 U.S. at 121. In the instant case, there is no direct evidence Perry was fired as a result of the racially discriminatory hiring barriers which Woodward allegedly attempted to impose. Any evidence of Woodward's advocation or implementation of a discriminatory hiring policy does not constitute direct evidence that Perry's termination was motivated by racial discrimination.

Perry also argues that the pervasion of racist statements made by Woodward constitutes direct evidence of racial discrimination. When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, this court has held that the plaintiff "must demonstrate a nexus exists between [the] allegedly discriminatory statements and the . . . decision to terminate her." Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994); see also Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir. 1996).

The evidence introduced by Perry consists of isolated, disparaging comments made by Woodward to and about Hispanics in general and Hispanic employees of the County Clerk's office in particular. Perry acknowledged during her deposition that none of the derogatory comments made by Woodward were directed toward her. There is no evidence in the record that any of Woodward's comments were intended to directly describe Perry. Further, Perry has failed to demonstrate a causal nexus between Woodward's racist comments and her discharge. Woodward's comments, although abhorrent and profoundly unprofessional, if made, do not represent direct evidence that Perry's termination was the result of Woodward's racism. Accordingly, we agree with the district court's conclusion that Woodward's comments are nothing more than an expression of her personal opinion and, as such, do not constitute direct evidence of a racially motivated discharge.

A plaintiff who lacks direct evidence of racial discrimination may rely on indirect evidence of discrimination by invoking the analysis first articulated in McDonnell Douglas. See McDonnell Douglas, 411 U.S. at 802-04. McDonnell Douglas involved a Title VII claim for failure to hire. However, the analytical framework it pioneered applies to claims brought pursuant to section 1981. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997); Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). When the McDonnell Douglas analysis is utilized, the burden of production shifts from plaintiff to defendant and back to plaintiff. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The ultimate burden of proving discrimination, however, is borne by the plaintiff. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

A plaintiff relying on McDonnell Douglas bears the initial burden of establishing a prima facie case by a preponderance of the evidence. See Burdine, 450 U.S. at 252-53. If the plaintiff establishes her prima facie case, a rebuttable presumption that the defendant unlawfully discriminated against her arises. See Hicks, 509 U.S. at 506-07. The defendant must then articulate a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff. See McDonnell Douglas, 411 U.S. at 802. If the defendant is able to articulate a valid reason, the plaintiff can avoid summary judgment only if she is able to show that a genuine dispute of material fact exists as to whether the defendant's articulated reason was pretextual. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).

Defendants argue that to establish a prima facie case of racial discrimination under section 1981, Perry, who is Hispanic, must show that the individual who was hired to replace her was not Hispanic. This court has repeatedly held that a plaintiff may establish a prima facie case of wrongful termination by showing that: (1) she belongs to a protected class; (2) she was qualified for her job; (3) that, despite her qualifications, she was discharged; and (4) that after her discharge the job remained available. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174-75 (10th Cir. 1996); Lujan v. New Mexico Health & Soc. Servs. Dep't, 624 F.2d 968, 970 (10th Cir. 1980); Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir. 1980). This court has also stated that the fourth element of the prima facie test is met if the discharged plaintiff can show that someone was hired to replace her. See Mohammed v. Callaway, 698 F.2d 395, 398 (10th Cir. 1983) (holding that the fact the position was filled, instead of remaining open, did not preclude employee from establishing a prima facie case); Crawford v. Northeastern Okla. State Univ., 713 F.2d 586, 588 (10th Cir. 1983) (same).

This court has never applied a test containing the inflexible requirement that a plaintiff who is a member of a group that has historically been discriminated against must show that she was replaced by someone outside her protected class in order to establish a prima facie case of wrongful termination under the McDonnell Douglas framework. But see Murray v. City of Sapulpa, 45 F.3d 1417, 1420 (10th Cir. 1995) (articulating a test containing a requirement that a protected class member show that the position from which he was terminated remained open or was filled by a person not of the protected class but not thereafter applying the test); Randle, 69 F.3d at 451 n.13 (same); cf. Reynolds v. School District No. 1, Denver, Colorado, 69 F.3d 1523, 1534 (10th Cir. 1995) (requiring a white plaintiff who alleged she had been denied a promotion because of her race to show that the position she sought was filled by a non-white).⁽⁵⁾ The original McDonnell Douglas test itself did not require the plaintiff to show that the position he sought was ultimately filled by someone outside his protected class. See McDonnell Douglas, 411 U.S. at 802. (stating the fourth element in a failure to hire case is satisfied if the plaintiff is able to show that "after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications").

The purpose behind the prima facie requirement established in McDonnell Douglas is to obligate a plaintiff to create a presumption of unlawful discrimination by "eliminat[ing] the most common nondiscriminatory reasons for the plaintiff's rejection." Burdine, 450 U.S. at 253-54. An inference of discrimination is raised when an employer rejects an otherwise qualified minority employment candidate and thereafter does not eliminate the position from which the candidate was rejected.

Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.

International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977) (involving Title VII claims for failure to hire and failure to promote). The Court later expounded on this observation. "We are willing to presume [discrimination] largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). We see no reason why the Court's reasoning does not apply equally when the plaintiff is alleging wrongful termination. See Crawford, 713 F.2d at 588 ("[T]here is no reason to apply a stricter version of the fourth part of the McDonnell Douglas test in a suit alleging a discriminatory discharge rather than a discriminatory failure to hire or promote."). Evidence of the seeking or hiring of a replacement to fill the position vacated by a discharged plaintiff who is a member of a group which has historically suffered discriminatory treatment is, by itself, sufficient to satisfy the fourth element of the plaintiff's McDonnell Douglas prima facie case of racial discrimination.⁽⁶⁾

The multiformity of courts' articulations of the fourth element of a plaintiff's prima facie case in wrongful termination lawsuits illustrates that courts allow a plaintiff flexibility in introducing the evidence necessary to formulate a prima facie case. See Burdine, 450 U.S. at 253 ("The burden of establishing a prima facie case of disparate treatment is not onerous."); McDonnell Douglas, 411 U.S. at 802 n.13 ("The facts necessarily will vary . . . and the specification . . . of the prima facie proof required from [plaintiff] is not necessarily applicable in every respect to differing factual situations."). While the fourth element of a plaintiff's prima facie case may be amorphous, a non-white employee who claims to have been discharged as a result of racial discrimination can make out the fourth element of her prima facie case without proving that her job was filled by a person who does not possess her protected attribute.⁽⁷⁾ See, e.g., Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1410 n.3 (10th Cir. 1984) (characterizing as "stricter" the tests adopted by some courts which require a plaintiff to show that her employer either assigned a non-minority person to her job or retained non-minority employees having comparable or lesser qualifications); see also Hicks, 509 U.S. at 528 n.1 (Souter, J., dissenting) (noting that the Supreme Court has not addressed the issue of whether the personal characteristics of an employee's replacement are material to the employee's prima facie case). Accordingly, we hold that the district court erred as a matter of law when it held that Perry failed to make out her prima facie case of racial discrimination under section 1981 because she was replaced by an Hispanic woman.

Defendants do not dispute Perry's assertions that she is a protected person, was qualified to perform her job, and was terminated. Further, it is undisputed that after her termination, a replacement was hired to fill Perry's position. Accordingly, we hold that Perry, a member of a minority group which has historically suffered discriminatory treatment in the workplace, has made out the fourth element of her prima facie case by her introduction of evidence that the position from which she was terminated was filled after her termination. Consequently, the district court erred when it dismissed on this ground Perry's racial discrimination claim arising under section 1981.⁽⁸⁾

1. Section 1981 Retaliation Claim

Perry argues that the district court erred in dismissing her section 1981 retaliation claim because the prima facie case for such a claim differs significantly from the prima facie case for racial discrimination and does not require her to demonstrate that her position was filled by someone who does not possess her protected attribute.⁽⁹⁾ Perry argues that she has met her prima facie burden with respect to her retaliation claim and the district court erred when it held otherwise.

Contrary to Perry's understanding of the district court's memorandum order, that order is void of any reference to her section 1981 retaliation claim. Although the district court dismissed all of Perry's state and federal claims with prejudice, the court did not specifically address the merits of any retaliation claim raised by Perry and specifically did not evaluate whether Perry had presented either direct or indirect evidence of retaliation. Therefore, the district court erred in dismissing Perry's section 1981 retaliation claim without analysis or discussion.⁽¹⁰⁾

B. Claims Arising Under the New Mexico Human Rights Act

1. New Mexico Racial Discrimination Claim

Addressing Perry's claim of racial discrimination brought pursuant to the New Mexico Human Rights Act, the district court held that Perry had failed to introduce either direct or indirect evidence of racial discrimination. The district court, therefore, dismissed Perry's New Mexico racial discrimination claim. In cases brought pursuant to the New Mexico Human Rights Act, a plaintiff must present direct evidence of discrimination or, alternatively, may choose to present indirect evidence by utilizing the McDonnell Douglas burden-shifting framework. See Martinez v. Yellow Freight Sys., Inc., 826 P.2d 962, 964-65 (N.M. 1992)

The New Mexico Supreme Court has held that discriminatory statements made directly to an employee by his employer can constitute direct evidence of discrimination. See Smith v. FDC Corp., 787 P.2d 433, 438 (N.M. 1990) (holding the trial court did not err when it found that ageist statements made to discharged employee represented direct evidence of age discrimination). However, as previously discussed, the racist statements made by Woodward were not directed at Perry and did not purport to describe her. Accordingly, under New Mexico law, Woodward's statements do not constitute direct evidence of racial discrimination.

The New Mexico state courts have indicated a willingness to embrace tests developed in light of McDonnell Douglas and have repeatedly applied the McDonnell Douglas burden-shifting analysis in wrongful termination cases when there is an absence of direct evidence of discrimination. See Cates v. Regents of the N.M. Inst. of Mining & Tech., 954 P.2d 65, 70 (N.M. 1998); Martinez, 826 P.2d at 964-65; Smith, 787 P.2d at 437. Defendants repeat their argument that Perry must prove her replacement was not Hispanic before she is able to satisfy her prima facie burden under New Mexico law. See Smith, 787 P.2d at 437 (stating, in dicta, that a terminated employee can make out his prima facie case by showing that his position was filled by someone who is not a member of his protected class but not thereafter applying this element of the test). In Smith, however, the New Mexico Supreme Court clarified that it does not intend to strictly adhere to the prima facie test articulated therein. "A prima facie case may also be made out through other means . . . . For example, a prima facie case can be shown absent a demonstration that the plaintiff was replaced by someone not in the protected class if he can show that he was dismissed purportedly for misconduct nearly identical to that engaged in by one outside of the protected class who was nonetheless retained." Id.; see also Cates, 954 P.2d at 69-70 (reiterating that the New Mexico courts have characterized the elements of the McDonnell Douglas test as "flexible enough to accommodate diverse cases").

There is no real indication that the New Mexico courts would require a plaintiff to satisfy a stricter prima facie burden and prove that she was replaced by an individual who did not possess her protected attribute. For the same reasons Perry has satisfied her prima facie burden with respect to her section 1981 racial discrimination claim, she has likewise satisfied her prima facie burden with respect to her New Mexico racial discrimination claim. Accordingly, the district court erred when it dismissed that claim.

2. New Mexico Retaliation Claim

In this appeal, both parties raise arguments relating to Perry's retaliation claim arising under the New Mexico Human Rights Act. Defendants' only relevant argument justifying the district court's dismissal of Perry's retaliation claim is that Perry is foreclosed from bringing the claim because she failed to raise it before the New Mexico Department of Labor. This issue was not raised in Defendants' motion for summary judgment and appears to be raised for the first time in Defendants' appellate brief. This court is free to "affirm for reasons other than those relied on by the district court, as long as those reasons find support in the record." Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993). There is, however, no record support for Defendants' contention that Perry did not include a claim of retaliation in the complaint she filed with the New Mexico Department of Labor.⁽¹¹⁾ Accordingly, we decline to affirm the district court's dismissal of Perry's New Mexico retaliation claim on the grounds advocated by Defendants.

Our discussion of Perry's section 1981 retaliation claim is equally applicable to her New Mexico retaliation claim. Accordingly, the district court erred when it dismissed Perry's New Mexico retaliation claim.

IV. Conclusion

In sum, we hold that an at-will employee under New Mexico law can maintain a cause of action for wrongful termination under 42 U.S.C. § 1981 and that, with respect to her racial discrimination claims, Perry has satisfied the fourth element of her McDonnell Douglas prima facie case. Accordingly, we REVERSE the district court's order granting summary judgment on Perry's section 1981 and New Mexico racial discrimination claims.⁽¹²⁾ Additionally, because the district court dismissed Perry's retaliation claims without analysis or discussion, we REVERSE the district court's order granting summary judgment on Perry's section 1981 and New Mexico retaliation claims. The case is REMANDED for further proceedings consistent with this opinion.

No. 98-2003

Defendants' Motion for Attorneys Fees

After the district court granted summary judgment in favor of Defendants in case No. 97-2343, Defendants filed a motion for attorney's fees pursuant to 42 U.S.C. § 1988. The motion was denied by the district court and Defendants appealed. Because we find in favor of Perry in No. 97-2343, Defendants are no longer the prevailing parties, a requirement under the attorney's fees provisions of 42 U.S.C. § 1988. See Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998). Defendants' cross-appeal, therefore, is moot and the district court's order denying Defendants' their attorney's fees is hereby VACATED.

^1.Upon the stipulation of the parties, the motion for summary judgment was heard by a United States Magistrate Judge. See 28 U.S.C. § 636(c).

^2.Perry testified that after the meeting, Woodward told her "not to even waste my time looking at applications with Hispanic names, not to waste my time interviewing, because she would be present, she wanted to be present in my interviews and make sure that I hired some Anglos."

^3.In at least one instance, the United States District Court for the District of New Mexico has held that an at-will employee can maintain a cause of action for retaliation under section 1981. See O'Neal v. Ferguson Constr. Co., 35 F. Supp.2d 832, 837-38 (D.N.M. 1999).

^4.Perry also argues that a plaintiff who has no direct evidence of racial discrimination and who is not able to establish a prima facie case through a typical McDonnell Douglas analysis can nevertheless satisfy her initial burden by introducing indirect evidence whose "cumulative probative force" supports a "reasonable probability of discrimination." Appellant's Brief at 16. We assume Perry is referring to the evidence of Woodward's many, racially-charged statements. We decline to address this argument in light of our holding, infra, that Perry has met her prima facie burden.

^5.The court in Reynolds clearly stated that a modification of the traditional McDonnell Douglas prima facie elements is necessary in reverse discrimination actions. See Reynolds v. School District No. 1, Denver, Colorado, 69 F.3d 1523, 1534 (10th Cir. 1995). A white plaintiff alleging reverse discrimination "does not necessarily deserve the presumption of discrimination afforded to a member of an ostensibly disfavored minority class." Id.

^6.The elimination of the position, however, does not necessarily eviscerate a plaintiff's claim that her discharge was racially motivated. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (emphasizing that the prima facie case is a flexible standard that may be modified to accommodate different factual situations).

^7.If a plaintiff is able to establish a prima facie case under the McDonnell Douglas analysis she has merely created a presumption that her employer unlawfully discriminated against her. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-255 (1981). If the racial characteristics of a plaintiff's replacement were applicable at the prima facie stage, a plaintiff would effectively be required to raise the inference not only that she was discriminated against but that her employer also discriminates against every other employee or potential employee who shares her protected attribute. Cf. Connecticut v. Teal, 457 U.S. 440, 455 (1982) ("It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group.") The replacement of a terminated plaintiff with an individual who shares the plaintiff's protected attribute does not necessarily negate the inference that the plaintiff was unlawfully discriminated against. By way of example, it is plausible that an employer may hire a replacement who shares the plaintiff's protected attribute in an effort to ward off a lawsuit.

^8.Because the district court ruled that Perry had failed to present a prima facie case of racial discrimination, the court did not proceed to the next level of the McDonnell Douglas analysis and address whether Defendants had articulated a legitimate, nondiscriminatory reason for discharging Perry. In light of the lack of a ruling from the district court, we refrain from continuing the McDonnell Douglas analysis and leave that and any attendant issues to be addressed by the district court on remand and upon proper motion of the parties.

^9.In retaliation cases, a plaintiff establishes a prima facie case by showing that: (1) she engaged in protected opposition to discrimination; (2) she was subject to adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 (10th Cir. 1998).

^10.This court can affirm the district court's decision to dismiss Perry's section 1981 racial discrimination claim for any reason supported by the record. See In re Robinson, 921 F.2d 252, 253 (10th Cir. 1990) ("An appellee may defend the judgment won below on any ground supported by the record without filing a cross appeal."). This court, however, will not craft a party's arguments for him. In their appellate brief, Defendants do not distinguish the prima facie elements in retaliation cases from those in racial discrimination cases. Because Defendants do not analyze the correct elements, they inevitably fail to advance any relevant argument that Perry has failed to meet her prima facie burden with respect to her retaliation claim. Because Defendants have not adequately developed the argument, we decline to address whether there is an alternative basis to affirm the district court's dismissal of Perry's section 1981 retaliation claim.

^11.After filing a complaint with the New Mexico Department of Labor, Human Rights Division and receiving an adverse determination, Perry filed a complaint in New Mexico state court. Defendants later removed the case to the United States District Court for the District of New Mexico. Defendants claim that Perry attempted to amend her complaint before the New Mexico Human Rights Division to include a claim of retaliation but was not permitted to do so. Defendants, however, have provided no documentation to support this claim.

^12.Perry's motion to certify to the New Mexico Supreme Court the issue of her prima facie burden under the New Mexico Human Rights Act is denied.

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