{ "id": 4077147, "name": "MARVIN L. RIST AND LEE RIST, Plaintiffs-Appellants, v. THE DESIGN CENTER AT FLOOR CONCEPTS, Defendant-Appellee", "name_abbreviation": "Rist v. Design Center at Floor Concepts", "decision_date": "2013-08-29", "docket_number": "Docket No. 28,897", "first_page": "164", "last_page": "171", "citations": [ { "type": "official", "cite": "2013-NMCA-109" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "112 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/112/0327-01" ] }, { "cite": "1991-NMSC-069", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "104 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594919 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0470-01" ] }, { "cite": "1986-NMCA-061", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "101 N.M. 687", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/101/0687-01" ] }, { "cite": "1984-NMSC-090", "category": 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], "opinion_index": 0 }, { "cite": "2003-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15894 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0248-01" ] }, { "cite": "111 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715060 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0006-01" ] }, { "cite": "1990-NMSC-100", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "2004-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428021 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0091-01" ] }, { "cite": "109 N.M. 386", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590294 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0386-01" ] }, { "cite": "1990-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "117 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552651 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0441-01" ] }, { "cite": "1994-NMSC-040", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2006-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 7-12" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0561-01" ] }, { "cite": "2007-NMCA-156", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784921 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0195-01" ] }, { "cite": "102 N.M. 272", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580128 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0272-01" ] }, { "cite": "1985-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0 }, { "cite": "117 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552617 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0380-01" ] }, { "cite": "1994-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "96 N.M. 651", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577363 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0651-01" ] }, { "cite": "1981-NMSC-095", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "2011-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4251314 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 48" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0669-01" ] }, { "cite": "2005-NMCA-022", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929164 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0026-01" ] }, { "cite": "106 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0492-01" ] }, { "cite": "1987-NMCA-133", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352514 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0238-01" ] }, { "cite": "121 N.M. 596", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566631 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0596-01" ] }, { "cite": "1996-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257748 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 16" }, { "page": "\u00b6 18" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0282-01" ] }, { "cite": "2008-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783982 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0740-01" ] }, { "cite": "113 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723270 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0112-01" ] }, { "cite": "1992-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "106 N.M. 726", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707293 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0726-01" ] }, { "cite": "1988-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 932, "char_count": 20129, "ocr_confidence": 0.769, "pagerank": { "raw": 5.104541093181089e-08, "percentile": 0.32069282803746474 }, "sha256": "821a49fdf8a67b7cf3be408d1a6c96a1d49ffc0004445e4fb37368bb1b1fb09f", "simhash": "1:9f40fd857ebd8fe6", "word_count": 3170 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "JAMES J. WECHSLER, Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "MARVIN L. RIST AND LEE RIST, Plaintiffs-Appellants, v. THE DESIGN CENTER AT FLOOR CONCEPTS, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{1} Marvin and Lee Rist (Plaintiffs) were dismissed from their jobs at The Design Center at Floor Concepts (Defendant) in Las Cruces, New Mexico. Plaintiffs alleged that they were punished for not participating in religious activities at the invitation of Defendant\u2019s owners. Plaintiffs filed suit under the New Mexico Human Rights Act (NMHRA), NMSA 1978, \u25a0\u00a7\u00a7 28-1-1 to -15 (1969, as amended through 2007), alleging discrimination. After Plaintiffs\u2019 presentation of their case, the district court granted dispositive defense motions for directed verdict. We affirm.\nBACKGROUND\n{2} Defendant hired Plaintiffs in the fall of 2006. Lee Rist, the son, was first hired as a polisher of granite but was quickly trained for and promoted to the position of templater. Marvin Rist, the father, was hired to manage the operations. Defendant\u2019s two owners are members of the Jehovah\u2019s Witness faith, as were some of its employees, and Plaintiffs, who are of a different faith, allege that they were the targets of proselytizing efforts by the owners and other employees. Following several such overtures, Plaintiffs were invited to attend a religious service around Easter in April 2007. After Marvin told the owners to stop urging Lee to attend religious events, both Plaintiffs say they were ostracized by the owners and fellow workers. Subsequently, Lee was required to work as a templater and a polisher, and Marvin alleges that he was stymied in his efforts to do his job by uncooperative salespeople. In June 2007, two months after the last incident involving a dispute over religion, Plaintiffs were fired along with one other employee in what Defendant said was a reduction in the work force as a result of a decrease in business. Defendant also claims that Plaintiffs were ineffective in their jobs.\n{3} Plaintiffs filed complaints with the federal Equal Employment Opportunity Commission (the EEOC). Both ignored requests for information from the EEOC. Eventually, the EEOC issued right-to-sue letters to Plaintiffs. The complaints with the EEOC were cross-filed with the New Mexico Human Rights Division (the Division). Plaintiffs did not receive a letter of nondetermination from the Division.\n{4} After receiving their right-to-sue letters from the EEOC, Plaintiffs filed this action, alleging \u201cwrongful termination\u201d and unlawfully discriminatory practice under the NMHRA, Section 28-l-7(A). After Plaintiffs presented their case, Defendant moved for directed verdicts. The district court granted the motions for: (1) lack of subject matter jurisdiction resulting from Plaintiffs\u2019 failure to exhaust administrative remedies, (2) Plaintiffs\u2019 failure to allege a cause of action for the common law tort of retaliatory discharge, (3) Plaintiffs\u2019 request for punitive damages, and (4) Plaintiffs\u2019 claims against the two owners of the business individually. Plaintiffs appealed.\nDISCUSSION\n{5} Plaintiffs raise six issues. They contend that the district court erred by: (1) directing a verdict against them because they failed to exhaust their administrative remedies, (2) concluding that the court lacked subject matter jurisdiction, (3) concluding that Plaintiffs failed to allege a claim for the tort of retaliatory discharge, (4) dismissing their claims for punitive damages, and (5) failing to consider the record as a whole when dismissing the complaint and directing a verdict for Defendant.\n{6} The sixth issue has become moot. This last issue involved the district court\u2019s dismissal of the complaint against the individual owners of Defendant because of Plaintiffs\u2019 failure to identify them as respondents in the underlying charge filed with the EEOC. After a discharge of all liabilities in the United States Bankruptcy Court and supplemental briefs filed by both parties addressing the effect, if any, the discharge had on Plaintiffs\u2019 appeal, this Court issued an order dismissing the individual owners with prejudice.\nI. Standard of Review\n{7} A district court should not grant a motion for directed verdict unless it is clear that \u201cthe facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result.\u201d Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, \u00b6 11, 106 N.M. 726, 749 P.2d 1105. \u201cA directed verdict is appropriate only when there are no true issues of fact to be presented to a jury. . . . The sufficiency of evidence presented to support a legal claim or defense is a question of law for the [district] court to decide.\u201d S unwest Bank of Clovis, N.A. v. Garrett, 1992-NMSC-002, \u00b6 9, 113 N.M. 112, 823 P.2d 912 (citations omitted). We review de novo the district court\u2019s decision on a motion for a directed verdict. McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, \u00b6 36, 143 N.M. 740, 182 P.3d 121.\nII. Exhaustion of Administrative Remedies\n{8} Plaintiffs contend that they each engaged in the administrative process by timely filing their complaints with the EEOC, which were cross-filed with the Division, per administrative procedure, thereby exhausting their administrative remedies. Cf. 9.1.1.8(F)(2) NMAC (10/1/01) (recognizing \u201ca complaint filed with any duly authorized civil rights agency holding a work sharing agreement or memorandum of understanding with the [DJivision shall be deemed to have filed with the [DJivision as of the date [it] was filed with any of these agencies\u201d). Complaints filed with the EEOC are deemed properly filed with the Division. Mitchell-Carr v. McLendon, 1999-NMSC-025, \u00b6 18, 127 N.M. 282, 980 P.2d 65; see Sabella v. Manor Care, Inc., 1996-NMSC-014, \u00b6 12, 121 N.M. 596, 915 P.2d 901 (noting that the EEOC is an agent of the Division for purposes of filing charges of discrimination pursuant to NMHRA). While filing a complaint with the EEOC puts the matter properly before the Division, meeting those filing requirements means only that a complainant may then proceed through the grievance process either under federal or state law. Mitchell-Carr, 1999-NMSC-025, \u00b6 18. Plaintiffs in this case chose to proceed under state law.\n{9} When electing to proceed with a complaint under state law, a person is bound by the NMHRA. It is the Division\u2019s grievance procedure that controls the resolution of a complaint. Id. \u00b6 16. After a complaint has been filed, the director of the Division is required to advise the respondent of the complaint, promptly investigate the alleged act(s), and determine whether probable cause exists for the complaint. Section 28-1-10(B). If the director finds probable cause does not exist, the complaint is dismissed. Id. If it is found that probable cause exists, the director attempts to achieve a resolution of the complaint. Section 28-1-10(C).\n{10} Compliance with the administrative process is a prerequisite to filing a claim in district court. A complainant \u201cmay request and shall receive an order of nondetermination from the director\u201d and \u201c[tjhe order of nondetermination may be appealed.\u201d Section 28-1-10(D). A person can only appeal from an order of the Division. See \u00a7\u00a7 28-l-10(D), - 13(A). \u201cAn order of nondetermination signals that the person who filed the complaint has fully complied with the NMHRA grievance procedures and may proceed to court.\u201d Mitchell-Carr, 1999-NMSC-025, \u00b6 16; see also Sonntag v. Shaw, 2001-NMSC-015, \u00b6 13, 130 N.M. 238, 22 P.3d 1188 (holding that under the NMHRA, \u201ca plaintiff must exhaust his or her administrative remedies against a party before bringing an action in district court against that party\u201d). Plaintiffs have correctly acknowledged that EEOC right-to-sue letters are not orders from the Division within the meaning of Section 28-l-13(A). EEOC right-to-sue letters cannot be treated as orders of nondetermination from the Division. Mitchell-Carr, 1999-NMSC-025, \u00b6 18. Because Plaintiffs\u2019 EEOC right-to-sue letters cannot be treated as orders of nondetermination from the Division, Plaintiffs have failed to exhaust their administrative remedies under the NMHRA.\n{11} Plaintiffs alleged in their complaint that they \u201ctimely filed a charge of religion discrimination with the [EEOC] and satisfied all administrative requirements for filing this suit.\u201d Defendant asserted as one of its affirmative defenses that Plaintiffs were barred from bringing an action under the NMHRA because Plaintiffs failed to exhaust their administrative remedies. Defendant renewed that argument at the close of Plaintiffs\u2019 case. Defendant has correctly pointed out that there is no New Mexico case law addressing the issue of who has the burden of proof in this instance. But New Mexico case law has clearly established that the exhaustion of administrative remedies is a prerequisite to filing a case under the NMHRA. We therefore hold that Plaintiffs, who have alleged in their complaint that they have exhausted their administrative remedies, have the burden of proving such in order for their case to proceed at the district court level.\n{12} Plaintiffs acknowledge that they failed to procure a notice of nondetermination from the Division, but they contend that this action should be dismissed without prejudice in order to give them time to obtain the proper notice from the Division. Plaintiffs further contend that the district court should have afforded them the opportunity to cure the administrative defect, and that failure of the court to do so late in the litigation process was unfair. \u201cTo preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the [district] court on the same grounds argued in the appellate court.\u201d Woolwine v. Furr's, Inc., 1987-NMCA-133, \u00b6 20, 106 N.M. 492, 745 P.2d 717. \u201c[0]n appeal, the party must specifically point out where, in the record, the party invoked the court\u2019s ruling on the issue. Absent that citation to the record or any obvious preservation, we will not consider the issue.\u201d Crutchfield v. N.M. Dep\u2019t of Taxation & Revenue, 2005-NMCA-022, \u00b6 14, 137 N.M. 26, 106 P.3d 1273. Plaintiffs did not specify where, in the record, they asked the district court to allow them time to cure their defect, and we were unable to locate the preservation of this issue in the record. If the district court did not have an opportunity to consider or rule on this issue, it is not properly before this Court. Barron v. Evangelical Good Samaritan Soc'y, 2011-NMCA-094, \u00b6 48, 150 N.M. 669, 265 P.3d 720. Plaintiffs\u2019 request will not be considered.\nIII. Subject Matter Jurisdiction\n{13} Our Supreme Court has stated that failure to exhaust administrative remedies deprives a district court of subject matter jurisdiction. Mitchell-Carr, 1999-NMSC-025, \u00b6 20. \u201cJurisdiction of the matters in dispute does not lie in the courts until the statutorily required administrative procedures are fully complied with.\u201d In re Application of Angel Fire Corp., 1981-NMSC-095, \u00b6 5, 96 N.M. 651, 634 P.2d 202. When aplaintiffhas failed to exhaust administrative remedies, thus depriving a district court of subject matter jurisdiction, dismissal of the complaint is appropriate. Luboyeski v. Hill, 1994-NMSC-032, \u00b6 7, 117 N.M. 380, 872 P.2d 353; Angel Fire, 1981-NMSC-095, \u00b6 5; Jaramillo v. J. C. Penney Co., 1985-NMCA-002, \u00b6 4, 102 N.M. 272, 694 P.2d 528.\n{14} \u201cTypically, subject matter jurisdiction cannot be waived and can be raised at any time.\u201d State ex rel. Children, Youth & Families Dep't v. Andree G., 2007-NMCA-156, \u00b6 18, 143 N.M. 195, 174 P.3d 531. Furthermore, when subject matter jurisdiction is lacking, dismissing a claim with prejudice is appropriate. See generally Schneider Nat\u2019l, Inc. v. State Taxation & Revenue Dep\u2019t, 2006-NMCA-128, \u00b6\u00b6 7-12, 140 N.M. 561, 144 P.3d 120 (holding it was proper to grant summary judgment where district court did not have subject matter jurisdiction when complaint was not filed within specific time frame).\n{15} We conclude that the district court was correct in determining that a failure to exhaust administrative remedies divested the district court of subject matter jurisdiction. It was proper for the court to grant Defendant\u2019s motion for directed verdict on this issue.\nIV. Tort Claim for Retaliatory Discharge\n{16} Separate from the reqirirements of the NMHRA, exhaustion of remedies is not a prerequisite to a tort claim that is independent of a cause of action under the NMHRA. Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040, \u00b6 9, 117 N.M. 441, 872 P.2d 859. We proceed with the issue of whether Plaintiffs brought a proper common law claim for retaliatory discharge.\n{17} The question before us is whether Plaintiffs set out such a claim of common law retaliatory discharge sufficient to provide notice of such a charge to Defendant. Plaintiffs contend that the district court erred in concluding that Plaintiffs\u2019 claim was brought only under the NMHRA and not under the common law tort of retaliatory discharge. Defendant argued that an action for retaliatory discharge fails because neither Plaintiffs\u2019 complaint, pretrial statement, nor proposed pretrial order provided notice of such a claim, and that Plaintiffs failed to establish such a claim. Plaintiffs also argued to the district court that reading the complaint as a whole, and taking into consideration all of the actions by Defendant, would be sufficient to establish a claim for retaliatory discharge. Nonetheless, Defendant asserted, it was not given adequate notice of a claim of retaliatory discharge.\n{18} Plaintiffs brought a claim for \u201cwrongful termination based on religious discrimination.\u201d Specifically, they alleged that the \u201cacts of [Defendant] constitute unlawful discrimination against [Plaintiffs] because of [their] religion in violation of the [NMHRA] and more particularly . . . [Section] 28-1-7[(A)].\u201d Plaintiffs also requested punitive damages for the original individual Defendants\u2019 \u201cmalice\u201d or \u201cwanton and willful disregard\u201d for Plaintiffs\u2019 rights, even though such damages are not allowed under the NMHRA.\n{19} Plaintiffs alleged the following in their pretrial statement:\nThis is a claim for unlawful discrimination on the basis of religion in violation of [the NMHRA] and more particularly . . . [Section] 28-l-7[(A)].\nPlaintiffs claim that . . . Defendantf] created a hostile work environment for Plaintiffs and retaliated against Plaintiffs by ultimately terminating Plaintiffs . . . in violation of [the NMHRA] and more particularly ... [Section] 28-1-7[(A)].\n{20} In its order of dismissal, the district courtbasically found that Plaintiffs\u2019 complaint did not allege a claim for retaliatory discharge but instead made a claim only for alleged violations of the NMHRA. The district court did not consider any evidence, nor did it address Plaintiffs\u2019 public policy argument.\n{21} We acknowledge that our standard of notice pleading allows a plaintiff to state only general allegations of conduct in a complaint. See Schmitz v. Smentowski, 1990-NMSC-002, \u00b6 9, 109 N.M. 386, 785 P.2d 726. However, such allegations must be \u201csufficiently detailed to give the parties and the court a fair idea of the plaintiff\u2019s complaint and the relief requested.\u201d Valles v. Silverman, 2004-NMCA-019, \u00b6 18, 135 N.M. 91, 84 P.3d 1056. Further, a party\u2019s pleadings must \u201cgive fair notice of the claims and defenses so that the opposing party may prepare for trial.\u201d Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, \u00b6 11, 111 N.M. 6, 800 P.2d 1063; see also Credit Inst. v. Veterinary Nutrition Corp., 2003-NMCA-010, \u00b6 19, 133 N.M. 248, 62 P.3d 339 (\u201cThe theory of pleadings is to give the parties fair notice of the claims and defenses against them, and the grounds upon which they are based.\u201d (internal quotation marks and citation omitted)).\n{22} While pleadings are to be liberally construed by New Mexico\u2019s courts, we will not read into a complaint a cause of action that is not stated. See Wells v. Arch Hurley Conservancy Dist, 1976-NMCA-082, \u00b6 35, 89 N.M. 516, 554 P.2d 678 (Hernandez, J., specially concurring) (noting that \u201ca court under the guise of liberal construction of a pleading cannot supply matters which it does not contain\u201d). And once a plaintiff pleads specific claims, that plaintiff is held to those claims. See In re Doe\u2019s Adoption, 1975-NMCA-009, \u00b6 10, 87 N.M. 253, 531 P.2d 1226 (noting that \u201conce a pleader pleads specifically, he will be held to what has been specifically plead[ed]\u201d). Plaintiffs failed to set forth a claim of retaliatory discharge.\n{23} Plaintiffs argue that a violation of the NMHRA is a violation of public policy actionable under Vigil v. Arzola, 1983-NMCA-082, 102 N.M. 682, 699 P.2d 613, rev\u2019d on other grounds, 1984-NMSC-090, 101 N.M. 687, 687 P.2d 1038. However, for discharge to be actionable as a violation of public policy, the public policy in question cannot be a general one, but rather the plaintiff \u201cmust identify a specific expression of public policy which the discharge violated[.]\u201d Maxwell v. Ross Hyden Motors, Inc., 1986-NMCA-061, \u00b6 20, 104 N.M. 470, 722 P.2d 1192; see also Vigil, 1983-NMCA-082, \u00b6 35 (\u201cA general allegation that the discharge contravened public policy is insufficient; to state a cause of action for retaliatory or abusive discharge the employee must identify a specific expression of public policy.\u201d). Plaintiffs\u2019 public policy argument also fails from a practical standpoint. Assuming that the general public policy against religious discrimination expressed by the NMHRA could be a basis for Plaintiffs\u2019 retaliatory discharge claim, Plaintiffs would be able to circumvent all the procedures set up by the Legislature for bringing discrimination claims by skipping the administrative process entirely. Such a tactic cannot prevail.\n{24} Plaintiffs further contend that because they requested punitive damages \u2014 which are not available under the NMHRA but are available under the tort of retaliatory discharge \u2014 Defendant should have been on notice that the tort of retaliatory discharge was being pleaded. Our Supreme Court has rejected the notion that a request for damages may form the basis for a specific cause of action. See Lett v. Westland Dev. Co., 1991-NMSC-069, \u00b6 6, 112 N.M. 327, 815 P.2d 623 (\u201cWhile a prayer for relief may be helpful in specifying the contentions of the parties, it forms no part of the pleader\u2019s cause of action, and the prevailing party should be given whatever relief he is entitled to under the facts pleaded and proved at trial.\u201d).\n{25} We conclude that Plaintiffs did not plead a claim for the tort of retaliatory discharge, nor did they give Defendant adequate notice of the common law tort claim separate from the charge filed under the NMHRA. The district court did not err in granting Defendant\u2019s motion for directed verdict for failure to state a separate claim for retaliatory discharge.\nIV. Consideration of Record as a Whole\n{26} Plaintiffs lastly argue that the district court erred by failing to consider the record as a whole in directing the verdict for Defendant. Because we agree with the district court that Plaintiffs failed to exhaust their administrative remedies, denying subject matter jurisdiction to the district court under the NMHRA, and also failed to allege a claim of retaliatory discharge, we need not address this issue.\nCONCLUSION\n{27} For the foregoing reasons, we affirm the district court\u2019s order of dismissal and granting of Defendant\u2019s motions for directed verdict.\n{28} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nJONATHAN B. SUTIN, Judge\nDefendant raises the issue of whether Plaintiffs acted in good faith in cooperating with the investigation by the EEOC of the discrimination complaint. Because Plaintiffs decided to proceed with their complaint under state law, we decline to address.", "type": "majority", "author": "ZAMORA, Judge." } ], "attorneys": [ "Scherr & Legate, LLC Connie Quintero El Paso, Texas for Appellants", "Holt, Babington, Mynatt, P.C. Matthew P. Holt Las Cruces, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-109\nFiling Date: August 29, 2013\nDocket No. 28,897\nMARVIN L. RIST AND LEE RIST, Plaintiffs-Appellants, v. THE DESIGN CENTER AT FLOOR CONCEPTS, Defendant-Appellee.\nScherr & Legate, LLC Connie Quintero El Paso, Texas for Appellants\nHolt, Babington, Mynatt, P.C. Matthew P. Holt Las Cruces, NM for Appellee" }, "file_name": "0164-01", "first_page_order": 180, "last_page_order": 187 }