PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELIZABETH PERRY,

Plaintiff-Appellant and

Cross-Appellee,

v.

JUDY WOODWARD, individually and as the Bernalillo County Clerk and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO,

Defendants-Appellees and

Cross-Appellants.

Nos. 97-2343 and 98-2003

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-96-1488-JHG/WWD)

Steven K. Sanders, Albuquerque, New Mexico, for Plaintiff-Appellant/Cross-
Appellee.

William D. Slease (Henry F. Narvaez, and Jonlyn M. Martinez, with him on the briefs) of Narvaez, Slease and Schamban, P.A., Albuquerque, New Mexico, for Defendants-Appellees/Cross-Appellants.

Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff, Elizabeth Perry ("Perry"), sued her employer, the Board of County Commissioners of the County of Bernalillo, and the County Clerk, Judy Woodward ("Woodward"), individually and as a County Clerk (collectively "Defendants"), alleging she was discriminated against on the basis of her race and retaliated against because she opposed employment practices made unlawful by state and federal laws. Perry's complaint alleged that Defendants violated the provisions of both the New Mexico Human Rights Act and 42 U.S.C. § 1981.

Defendants moved for summary judgment.1 The district court held that Perry had failed to establish a prima facie case of racial discrimination under New Mexico law by either direct or indirect evidence. Additionally, the district court ruled that Perry could not maintain a cause of action under 42 U.S.C. § 1981 because she was an at-will employee. The district court also held that Perry was required to present evidence of intentional discrimination to prevail under 42 U.S.C. § 1981 but had failed to do so. The district court, therefore, granted Defendants' motion for summary judgment and dismissed all of Perry's state and federal claims with prejudice. The district court denied Defendants' subsequent motion for attorney's fees. Perry appeals the dismissal of her claims. Defendants appeal the denial of their attorney's fees.

This court exercises jurisdiction over both appeals under 28 U.S.C. § 1291 and 636(c)(3). This court REVERSES the summary judgment and VACATES as moot the order on attorney's fees.

No. 97-2343

I.	Factual Background

The evidence is either uncontroverted or treated in a light most favorable to Perry, the non-moving party. On January 1, 1993, Woodward took office as the County Clerk for Bernalillo County, New Mexico. In February 1993, Woodward hired Perry to serve as Deputy County Clerk. Perry began her employment as Deputy County Clerk on March 1, 1993. At the time she accepted the job, Perry understood that the position of Deputy County Clerk was an at-will position.

Woodward began making racist remarks to employees shortly after taking office as County Clerk. During the first staff meeting for employees of the Clerk's office after her election, and in the course of discussing the educational opportunities available to county employees, Woodward announced that Hispanics needed more education. While speaking with Donna Lopez, an Hispanic employee of the County Clerk's office, Woodward called Lopez a "dirty Mexican." Lopez reported this incident to Viola Cortez, the union steward for the White Collar Union. Cortez was also informed by another employee, Kathy Sandoval, that Woodward had told Sandoval that "Mexicans smell bad." In another incident, Woodward approached Rachel Martinez, the union president, and stated, "You know, there's some Afro-Americans, Rachel, you know that they have bad body odor. There's a lot of Hispanics that have it." After a union meeting attended by county employees, Woodward told Martinez, "There's a lot of old ladies there, and, you know, they're Hispanics, they're set in their own ways. They don't want to learn the new things. . . . I know I can't go in there and start firing everybody, but I can make it so miserable that they will leave, one at a time." In the course of a work-related conversation, Woodward asked Julie Childers, "Do you know why I don't like Hispanics? . . . I don't like Hispanics 'cause they're hot blooded and my ex-husband left me for a hot blooded Mexican."

In December 1993, Perry, who had authority to make hiring decisions, hired an Hispanic woman, Tina Gallegos, to fill a vacant position in the County Clerk's office. Shortly thereafter, in the presence of Jaime Diaz, a supervisor in the Bureau of Elections, Woodward told Perry not to hire any more Hispanic candidates. During a budget meeting held in January 1994, a discussion ensued involving the addition of new positions to the County Clerk's office. During the course of that discussion, Woodward turned to Perry and said, "And you, I don't want you hiring any more Hispanics." After the meeting, Woodward informed Perry that she intended to be present during all future job interviews conducted by Perry to ensure that Perry "hired some Anglos."2

When a clerical position opened up in the County Clerk's office, Woodward sat in while Perry interviewed candidates for the position. In February 1994, Perry hired Arlene Martinez, an Hispanic woman, to fill the clerical position. Approximately one week later, Woodward approached Irene Serna, informed her that she was contemplating firing Perry, and offered Perry's job to Serna. Woodward fired Perry on February 26, 1994. Woodward subsequently hired Serna to replace Perry as Deputy Clerk. Serna is Hispanic.

II.	Standard of Review

This court reviews a grant of summary judgment de novo, applying the same standard applied by the district court. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Under this standard, the court examines the record to determine whether any genuine issue of material fact is in dispute. We construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998). When the nonmovant will bear the burden of proof at trial, she can survive summary judgment only by going beyond the pleadings and presenting evidence sufficient to establish the existence, as a triable issue, of any essential and contested element of her case. See McKnight, 149 F.3d at 1128.

If there are no material issues of fact in dispute, this court determines whether the district court correctly applied the substantive law. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). When this court reviews a grant of summary judgment, it reviews the district court's conclusions of law de novo. See Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1290-91 (10th Cir. 1999). A district court's determination of New Mexico law is also reviewed de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231 (1991); Western Heritage Ins. Co. v. Chava Trucking Inc., 991 F.2d 651, 653 (10th Cir. 1993).

III.	Discussion

A.	Claims Arising Under 42 U.S.C. § 1981

The district court held that Perry's claims arising under 42 U.S.C. § 1981 (hereinafter "section 1981") must be dismissed because Perry was an at-will employee and is, therefore, unable to establish a violation of section 1981. Further, the district court held that Perry must provide proof of intentional discrimination to prevail under section 1981 and failed to do so.

1.	At-Will Employment Relationship

The parties agree that Perry had no written employment contract and was an at-will employee under New Mexico law. See Sanchez v. The New Mexican, 738 P.2d 1321, 1323 (N.M. 1987) (recounting that, under New Mexico law, unless there is an explicit contract of employment stating otherwise, employment is terminable "at will"). Because no material factual dispute exists with respect to Perry's employment status, this court will reverse the grant of summary judgment only if the district court misapplied substantive law when it concluded that an at-will employee cannot maintain a cause of action under section 1981. See Kaul, 83 F.3d at 1212.

Section 1981(a) provides, in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." In 1989, the Supreme Court held that section 1981's prohibition against discriminatory conduct did not extend beyond the formation of a contract to conduct occurring after the establishment of the contractual relationship. See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (holding that section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations").

In response to Patterson and other cases, Congress enacted the Civil Rights Act of 1991. See Pub. L. No. 102-166, 105 Stat. 1071; see also H.R. Rep. No. 102-40(II), at 2 (1991) (stating that one of the purposes of the Civil Rights Act of 1991 was to "respond to recent Supreme Court decisions by restoring the civil rights protections that were dramatically limited by those decisions"). Pursuant to the Civil Rights Act of 1991, the existing text of section 1981 was redesignated as section 1981(a) and subsections (b) and (c) were added. See Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071-72. Section 1981(b) reads: "For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Section 1981 now clearly prohibits discriminatory conduct that occurs both before and after the establishment of the contractual relationship. See id.; see also Hopkins v. Seagate, 30 F.3d 104, 105 (10th Cir. 1994) (stating that the termination of contracts is included in the protections afforded by section 1981, as amended by the Civil Rights Act of 1991).

Even as amended, section 1981 continues to center on the protection of contractual rights. See 42 U.S.C. § 1981(a). Although an employee can now seek redress for discriminatory conduct engaged in by her employer either before or after the formation of the employment relationship, any claim brought pursuant to section 1981 must still be supported by an underlying right of the employee to "make and enforce contracts." Id.

Defendants interpret section 1981 to require the existence of a contractual relationship between an employee and her employer and argue that this contractual relationship can only arise if an employee and her employer have entered into a written employment contract. Defendants argue that the absence of a written employment contract is fatal to an employee's section 1981 claim. Defendants claim Perry cannot maintain a cause of action under section 1981 because she was an at-will employee without a written employment contract.

This court has never directly addressed the question of whether an at-will employee can bring a cause of action under section 1981.3 For the reasons articulated below, this court declines to adopt the narrow interpretation of section 1981 promoted by Defendants.

Perry's relationship with her employer consisted of Perry's rendition of services in exchange for her employer's payment of wages. Under New Mexico law, this is a contractual relationship. See Melnick v. State Farm Mut. Auto. Ins. Co., 749 P.2d 1105, 1109 (N.M. 1988) ("When an employment contract is not supported by any consideration other than performance of duties and payment of wages, and there is no explicit contract provision stating otherwise, it is an employment contract for an indefinite period and terminable-at-will by either party.") (emphasis added). Although Perry was an at-will employee, her relationship with her employer was contractual. See id.

Resolution that a contractual relationship existed only begs the question of whether the contractual relationship between Perry and her employer embodied sufficient contractual rights to support a cause of action for wrongful termination under section 1981. The Seventh Circuit Court of Appeals, for example, has suggested that, because an at-will employment contract does not encompass termination terms, an at-will employee cannot bring an action for wrongful termination against her employer under section 1981. See, e.g., Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998) (dicta); see also Gandy v. Gateway Found., 1999 WL 102777, *17-*18 (N.D. Ill. Feb. 22, 1999) (magistrate judge's report and recommendation) (discussing Gonzalez and implying that an at-will employment relationship would only be sufficient to support a section 1981 claim for demotion or reduction in pay). Those who advance or embrace this argument reason that because an at-will employee may be discharged at any time, the terms of an at-will employment contract extend only to wages, benefits, duties, and working conditions, but do not encompass the time or manner of termination. Consequently, they conclude that because terminations for any reason or no reason are permissible under the terms of an at- will employment contract, employees cannot bring claims under section 1981 alleging wrongful termination.

This position has been explicitly rejected by both the Fourth and Fifth Circuit Courts of Appeal. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1020 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass'n, 160 F.3d 1048, 1052 (5th Cir. 1998). The amendment of section 1981 to include a prohibition against racially discriminatory conduct in the termination of contracts has effectively altered the at-will employment relationship. Although the general rule that an employer can discharge an at-will employee for any reason or no reason is still valid, an employer can no longer terminate an at-will employment relationship for a racially discriminatory reason. See 42 U.S.C. § 1981(b); see also Hopkins, 30 F.3d at 105 (stating that the protections of section 1981 now encompass the termination of the employment relationship).

The great weight of well-reasoned authority supports this court's conclusion that the employment-at-will relationship encompasses sufficient contractual rights to support section 1981 claims for wrongful termination. See, e.g., Spriggs, 165 F.3d at 1018-20; Faydei, 160 F.3d at 1049-52; LaRocca v. Precision Motorcars, Inc., No. 4:98CV3195, 1999 WL 191568, at *11-*13 (D. Neb. Mar. 26, 1999); O'Neal v. Ferguson Constr. Co., 35 F. Supp.2d 832, 837-
38 (D.N.M. 1999); Williams v. United Diary Farmers, 20 F.Supp.2d 1193, 1201-
02 (S.D. Ohio 1998); Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1272 (M.D. Ala. 1998); Harris v. New York Times, No. 90 CIV. 5235, 1993 WL 42773, at *3-*4 (S.D.N.Y. Feb. 11, 1993). The district court erred as a matter of law when it dismissed Perry's claims arising under section 1981 because she was an at-will employee.

2.	Section 1981 Racial Discrimination Claim

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

2.	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.