                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS April 12, 2019
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 SILO ROMERO,

              Plainitff - Appellee/
              Cross-Appellant,

 v.                                              Nos. 17-1454 and 18-1018
                                              (D.C. No. 1:15-CV-00720-NYW)
 HELMERICH & PAYNE                                        (D. Colo. )
 INTERNATIONAL DRILLING CO.,

              Defendant - Appellant/
              Cross-Appellee.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.



      Silo Romero worked on an oil rig for Helmerich & Payne, and was fired

after an extended dispute concerning workers’ compensation. Romero sued H&P

alleging the company either actually or constructively discharged him in

retaliation for pursuing his workers’ compensation claim. The district court



      *
         This order and judgment is not binding precedent except under the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.
permitted Romero to advance his constructive discharge theory over H&P’s

objections. At trial, the jury found H&P both actually and constructively

discharged Romero.

      We AFFIRM. We hold the district court did not reversibly err in permitting

Romero’s constructive discharge theory to go to the jury. We also hold the

district court correctly applied the wrongful withholding statute to calculate

Romero’s prejudgment interest.

                                 I. Background

      In May 2009, Romero injured his forearm while working on an oil rig for

H&P. He filed a workers’ compensation claim in Colorado and received benefits,

including full salary during recovery. In 2012, Romero still suffered arm pain

from his injury and sought a second surgery. Workers’ compensation covered

medical costs, but H&P refused to pay wages during his convalescence because it

considered the surgery elective. Romero then filed an administrative complaint

seeking back wages for his period of recovery. The parties settled Romero’s

claim for back wages and he then returned to work.

      The day after he returned to work, H&P fired him. Although witnesses

provided conflicting testimony about some details, it is undisputed that Romero’s

supervisor called Romero into his office and informed him that he would receive

a disciplinary write-up. Romero refused to sign the write-up because it was blank


                                         -2-
and contained a termination section. The supervisor gave Romero a choice: sign

or leave. Romero shook hands with everyone in the room, gathered his

belongings, and left the work site.

      Romero sued H&P for wrongful termination in violation of Colorado public

policy, alleging H&P fired him in retaliation for filing a workers’ compensation

claim and administrative challenge. The complaint alleged H&P “discharged” or,

alternatively, “constructively discharged” him.

      At trial, Romero testified that H&P fired him from his job and that he did

not resign or quit. Romero also asserted his alternative theory of “constructive

(implied) discharge” and proposed, over H&P’s objection, a jury instruction based

on Colorado’s Civil Jury Instruction 31:10. 1 H&P then proposed, over Romero’s

objection, a jury instruction based on the constructive discharge definition in




      1
          The pattern jury instruction reads:

      31:10 Constructive (Implied) Discharge
      Even if the plaintiff resigned from (his) (her) employment, if you find that the
      words spoken or actions taken by the defendant would have led a reasonable
      person in the plaintiff’s position to believe, and did lead the plaintiff to
      believe, that (he) (she) had been or was going to be discharged by the
      defendant, then the plaintiff was, in fact, discharged by the defendant.

Colo. Jury Instr., Civil 31:10 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018).

                                          -3-
Instruction 31:9, 2 arguing that even though a constructive discharge instruction

should not be given, Instruction 31:9 should always accompany Instruction 31:10.

       H&P moved for judgment as a matter of law, arguing constructive

discharge requires evidence an employee resigned. The trial court denied the

motion and ruled it would give the jury both H&P’s 31:9 instruction and

Romero’s 31:10 instruction. The district court also approved a special verdict

that read, in part:

       3. Did defendant actually discharge the plaintiff because the plaintiff
       exercised his right as a worker to file a worker’s compensation claim
       for loss wage benefits?
       ____ YES ____ NO

       IF YOUR ANSWER IS YES, YOU HAVE REACHED A VERDICT IN
       FAVOR OF PLAINTIFF. PLEASE PROCEED TO QUESTION 5 [to
       calculate Romero’s economic and non-economic damages].

       IF YOUR ANSWER IS NO, PLEASE PROCEED TO QUESTION 4.




       2
           The pattern jury instruction reads:

       31:9 Constructive Discharge—Defined.
       A constructive discharge occurs when an employer deliberately makes or
       allows an employee’s working conditions to become so intolerable that the
       employee has no reasonable choice but to quit or resign and the employee does
       quit or resign because of those conditions. However, a constructive discharge
       does not occur unless a reasonable person would consider those working
       conditions to be intolerable.

Colo. Jury Instr., Civil 31:9 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018).

                                           -4-
      4. Did defendant constructively discharge the plaintiff because the
      plaintiff exercised his right as a worker to file a worker’s compensation
      claim for loss wage benefits?
      ____ YES ____ NO

The jury answered Question 3 in the affirmative, but instead of skipping to

Question 5 to calculate Romero’s damages, it also answered Question 4 in the

affirmative—despite the special verdict’s direction to answer only one of the

questions.

      H&P moved for a new trial, arguing the jury reached an irreconcilably

inconsistent verdict. The trial court determined the verdict was reconcilable

because the jury did not make “contradictory findings.” Romero v. Helmerich &

Payne Int’l Drilling Co., No 15-CV-00720-NYW, 2017 WL 5900361, at *11 (D.

Colo. Nov. 30, 2017). The court therefore denied the motion.

      H&P appealed the district court’s denial of the motion for judgment as a

matter of law, constructive discharge jury instruction, and denial of the motion for

a new trial.

      Romero cross-appealed the district court’s calculation of damages because

the court determined Colorado’s wrongful withholding statute applies to

prejudgment interest on Romero’s economic damages, rather than the personal

injury statute. Application of the personal injury statute would yield a higher

interest payment to Romero.



                                         -5-
                                   II. Analysis

      We first consider H&P’s arguments that the jury verdict should be reversed

because the district court erred in instructing the jury on constructive discharge

and that the error created sufficient jury confusion as to cast doubt on the verdict.

We then consider the parties’ competing theories of prejudgment interest.

      A. Trial Proceedings

      H&P contends the jury should not have been instructed on Romero’s

alternative theory of constructive discharge because it was not supported by the

evidence at trial. Although we partly agree with H&P, we find the district court’s

error harmless.

      As a federal court sitting in diversity, we apply Colorado’s substantive law

on constructive discharge. See Hanna v. Plumer, 380 U.S. 460, 465 (1965). We

“look to the rulings of the highest state court” to guide our interpretation of state

law. Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.

2007). When the highest state court has not addressed the question, we predict

how it would rule after giving “proper regard to relevant rulings of other courts of

the State.” Id. (internal quotation marks omitted). Pattern jury instructions may

be helpful and persuasive if they accurately reflect applicable law but do not

themselves have the force of law. See, e.g., Iowa Pac. Holdings, LLC v. Nat’l

R.R. Passenger Corp., 853 F. Supp. 2d 1094, 1099 (D. Colo. 2012).


                                         -6-
      The Colorado Supreme Court requires two elements for a constructive

discharge claim: (1) intolerable working conditions deliberately created by the

employer, and (2) the employee’s resignation as a result. “To prove a

constructive discharge, a plaintiff must present sufficient evidence establishing

deliberate action on the part of an employer which makes or allows an employee’s

working conditions to become so difficult or intolerable that the employee has no

other choice but to resign.” Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d

1085, 1088 (Colo. 1991) (quoting Wilson v. Bd. of Cty. Comm’rs, 703 P.2d 1257,

1259 (Colo. 1985)), overruled in part on other grounds by Cmty. Hosp. v. Fail,

969 P.2d 667 (Colo. 1998). Intolerable conditions are those “a reasonable person

under the same or similar circumstances would view . . . as intolerable, and not

upon the subjective view of the individual employee.” Id. 3

      In addition, “[c]onstructive discharge may occur without a formal firing,

but the words or actions by the employer must ‘logically lead a prudent person to

believe his tenure had been terminated.’” Id. (quoting Civil Rights Comm’n v.

Colorado, 488 P.2d 83, 86 (Colo. App. 1971)). In other words, an employer



      3
         Colorado courts have pointed to examples of intolerable conditions such
as discriminatory demotion or non-recommendation, see Boulder Valley, 805 P.2d
at 1088, harassment or coercion, see Christie v. San Miguel Cty. Sch. Dist. R-2(J),
759 P.2d 779 (Colo. App. 1988), or discriminatory reassignment and hostile
ostracism, see Gray Moving & Storage, Inc. v. Indus. Comm’n, 560 P.2d 482, 483
(Colo. App. 1976).

                                         -7-
cannot use the employee’s resignation as a defense against a wrongful discharge

claim (whether actual or constructive) when the employee reasonably believes he

has been or will soon be terminated.

      Recent cases from the Colorado Court of Appeals confirm this

interpretation of Boulder Valley. See Koinis v. Colo. Dep’t of Pub. Safety, 97

P.3d 193, 196 (Colo. App. 2003) (stating the two-element test); Krauss v.

Catholic Health Initiatives Mountain Region, 66 P.3d 195, 202–03 (Colo. App.

2003) (referring to “the resignation element of a constructive discharge claim”).

      With this legal framework in mind, we address each of H&P’s three

grounds for reversal. None ultimately succeeds.

             1. Motion for Judgment as a Matter of Law

      H&P argues the district court reversibly erred when it denied H&P’s motion

for judgment as a matter of law, because resignation is an essential element of a

constructive discharge claim and Romero testified unequivocally he did not

resign. The district court declined to treat Romero’s testimony as dispositive,

denying H&P’s motion because there was sufficient evidence Romero was forced

to resign.

      “We review de novo a district court’s disposition of a motion for judgment

as a matter of law, applying the same standard as the district court.” Arnold Oil

Properties LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206 (10th Cir.


                                        -8-
2012) (alteration omitted). “In conducting this review, the evidence and

inferences therefrom must be construed most favorably to the nonmoving party.”

Baker v. Barnard Constr. Co., 146 F.3d 1214, 1220 (10th Cir. 1998) (alteration

and internal quotation marks omitted).

      As we have explained, Colorado law requires the elements of intolerable

working conditions and resignation. Boulder Valley uses mandatory language that

“a plaintiff must present sufficient evidence establishing” both elements “[t]o

prove a constructive discharge.” 805 P.2d at 1088 (emphasis added). Without

evidence of both of these elements, the jury should not have been instructed on a

theory of constructive discharge.

      Regardless of whether his working conditions satisfied the objective test of

intolerability, Romero testified that he did not resign. Because whether Romero

resigned is uniquely within his knowledge, the court should have accepted his

testimony as true. See Anderson-Prichard Oil Corp., 245 F.2d 831, 834 (10th Cir.

1957) (“[W]hen a party testifies to positive and definite facts which, if true,

would defeat his right to recovery or fix liability upon him, he is bound by this

testimony.”); see also Young v. Vincent, 310 F.2d 709, 712 (10th Cir. 1962)

(“[A]dditional evidence, when in conflict with plaintiff’s own testimony, can

neither weaken nor strengthen plaintiff’s case.”).




                                          -9-
      In light of these problems, Romero contends Boulder Valley contemplates a

second kind of constructive discharge—one which occurs without a formal firing

and leads the employee to believe his tenure has been terminated, but does not

involve resignation or intolerable working conditions. But both Boulder Valley

and Civil Rights Commission involved resignation and (arguably) intolerable

working conditions, and thus shut the door on any alternative theory of

constructive discharge. See Boulder Valley, 805 P.2d at 1087; Civil Rights

Comm’n, 488 P.2d at 85–86.

      Nevertheless, the district court’s denial of judgment as a matter of law was

harmless error. H&P did not articulate any prejudicial effect, either in its briefs

or at oral argument, except insofar as the denial of its motion is entwined with

H&P’s other issues on appeal, which we address separately below. The jury

unanimously found H&P actually discharged Romero as well as constructively

discharged him. The jury’s actual discharge finding independently supports the

verdict and moots any alleged error concerning constructive discharge. See

Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1095 n.12 (10th Cir. 2007)

(finding any error in the trial court’s dismissal of plaintiffs’ constructive

discharge claims was harmless because the same factual allegations underlying

them failed before the jury); Roberts v. Wal-mart Stores, Inc., 7 F.3d 1256, 1259

(5th Cir. 1993) (Even if the district court “erred in denying their motion for


                                         -10-
judgment as a matter of law” and “erred in permitting the comparative fault issue

to go to the jury and in giving the instruction on comparative fault, the error was

harmless” because it did not affect the jury’s verdict.); Saunders v. Pool Shipping

Co., 235 F.2d 729, 730 (5th Cir. 1956) (“If it was error” to deny a Rule 50

motion, “the error on liability was harmless.”).

      In sum, construing the evidence and all inferences in the light most

favorable to the nonmoving party, we conclude the district court’s denial of

H&P’s motion for judgment as a matter of law was harmless error.

             2. Jury Instruction

      H&P next argues the district court erred in instructing the jury on

constructive discharge. For similar reasons as discussed above, any instructional

error was harmless.

      “We read and evaluate the jury instructions in light of the entire record to

determine if they fairly, adequately and correctly state the governing law and

provide the jury with an ample understanding of the applicable principles of law

and factual issues confronting them.” Lederman v. Frontier Fire Prot., Inc., 685

F.3d 1151, 1154–55 (10 th Cir. 2012) (internal quotation marks omitted). “We do

not decide whether the instructions are flawless, but whether the jury was misled

in any way and whether it had an understanding of the issues and its duty to

decide those issues.” Id. at 1155 (cleaned up).


                                         -11-
      “If we determine that the trial court erred, we must then determine whether

the error was prejudicial.” Id. “The judgment must be reversed if the jury might

have based its verdict on the erroneously given instruction.” Id. (cleaned up).

      In the district court, H&P argued it did not terminate Romero. Romero, for

his part, denied he had resigned. In any case, Romero argued, his encounter with

the supervisor would have led a reasonable person to believe and actually did lead

Romero to believe he had been fired. Romero’s argument was supported by

sufficient evidence and the court gave Instruction 31:10.

      Instruction 31:10—like the Civil Rights Commission case from which it is

derived—clarifies that an employer cannot use the lack of a formal firing as a

defense against a wrongful discharge claim (actual or constructive) when the

employee reasonably and actually believes he has been terminated. In such a

case, the employee “was, in fact, discharged by the [employer].” Colo. Jury

Instr., Civil 31:10 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018). The

instruction is designed to shield employees from precisely the Catch-22 argument

H&P attempted below. Furthermore, Instruction 31:10 may be given “even if” the

employee resigned, but is not limited to that circumstance. Thus, although

Romero’s testimony that he did not resign is dispositive of his constructive

discharge claim, Instruction 31:10 remained appropriate as it pertained to his




                                        -12-
actual discharge claim. Therefore the district court did not abuse its discretion by

giving the instruction. See Lederman, 685 F.3d at 1154–55.

      But even if H&P is correct that Instruction 31:10 can only be given when

the employee asserts a viable constructive discharge claim, the jury could not

have based its verdict on the erroneous instruction. As we explained above, this

is because the jury found unanimously that H&P had actually discharged Romero

independently of any constructive discharge instructions. The court’s decision to

instruct the jury on constructive discharge simply had no effect on the verdict.

See Emp’rs Liab. Assur. Corp. v. Freeman, 229 F.2d 547, 551 (10th Cir. 1955)

(“[T]he technical incorrectness in the particular instruction under consideration

constituted harmless error which did not affect the final action of the jury in

returning the verdict.”). Nor does H&P suggest the jury gave Romero double

recovery. “At worst, the jury answered yes to alternative theories of liability;

either way defendants are liable.” Hall v. Mabe, 336 S.E.2d 427, 429 (N.C. App.

Ct. 1985). Thus, the jury verdict did not prejudice H&P.

             3. Motion for New Trial

      Finally, H&P argues the jury’s findings were irreconcilable and the district

court erred by not granting a new trial. Even if we accept some conflict between

the two theories of liability, the jury’s findings did not prejudice H&P.




                                         -13-
      To safeguard the jury’s function, courts must “reconcile the jury’s findings,

by exegesis if necessary, before they are free to disregard the jury’s special

verdict and remand the case for a new trial. If there is any plausible theory that

supports the verdict, the reviewing court must affirm the judgment.” Johnson v.

Ablt Trucking Co., 412 F.3d 1138, 1143 (10th Cir. 2005) (cleaned up); see also

Domann, 261 F.3d at 983 (“In determining whether there is any inconsistency, we

must accept any reasonable explanation that reconciles the jury’s verdict.”). “To

be irreconcilably inconsistent, the jury’s answers must be logically incompatible,

thereby indicating that the jury was confused or abused its power.” Johnson, 412

F.3d at 1144 (internal quotation marks omitted).

      The jury unanimously found both that Romero was actually discharged and

that he was constructively discharged. H&P argues this verdict is “irreconcilably

inconsistent” because the jury found Romero was terminated and simultaneously

that he resigned—assuming Boulder Valley’s two-element test for constructive

discharge.

      We disagree. The jury could have concluded that actual discharge and

constructive discharge, though different, overlap. For example, it is possible an

employer could fire an employee and simultaneously lead a reasonable employee

to believe he had been or was going to be discharged. And the jury could have

concluded Romero reasonably believed he was about to be discharged when he


                                         -14-
left the company. We therefore have no basis or need to speculate the jury lacked

unanimity in its verdict. The district court correctly concluded that, even if the

jury’s special verdict is legally inconsistent with respect to the theories advanced

at trial, the verdict is logically consistent in its determination Romero was

discharged in violation of public policy.

      Due to the jury’s finding of actual discharge, its further finding of

constructive discharge was unnecessary. See Floyd v. Laws, 929 F.2d 1390, 1397

(9th Cir. 1991) (“[S]pecial findings issued in violation of the trial court’s express

instructions” are “surplusage, as a matter of law.”); Frey v. Alldata Corp., 895 F.

Supp. 221, 224 (E.D. Wis. 1995) (“Some failures to follow the jury instructions

differ from logically contradictory verdicts. . . . Failing to follow the court’s

instructions may create only superfluous information, not a logical

contradiction.”).

      Because there are plausible interpretations that logically reconcile the jury

verdict, the district court did not abuse its discretion in denying H&P’s motion for

a new trial.

      B. Prejudgment Interest

      Romero cross-appeals regarding the calculation of prejudgment interest

under Colorado law.




                                          -15-
      Two Colorado prejudgement interest statutes are at play. The first,

Colorado’s wrongful withholding statute, applies “[w]hen money or property has

been wrongfully withheld.” Colo. Rev. Stat. § 5-12-102(1)(a) (2018) (emphasis

added). The second, Colorado’s personal injury statute, applies “[i]n all actions

brought to recover damages for personal injuries sustained by any person

resulting from or occasioned by the tort of any other person, corporation,

association, or partnership.” Colo. Rev. Stat. § 13-21-101(1) (2018) (emphasis

added).

      To interpret Colorado’s substantive law, we once again turn to the Colorado

Supreme Court. The court has explained that the wrongful withholding statute is

“comprehensive in scope,” Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821,

825 (Colo. 2008), and is designed “to compensate the plaintiff for the monetary

losses sustained on wrongfully withheld money or property from the accrual of a

claim for relief until entry of judgment,” Farmers Reservoir & Irr. Co. v. City of

Golden, 113 P.3d 119, 133 (Colo. 2005). In other words, the statute allows

plaintiffs to recover where they “lost or [were] deprived of something to which

[they were] otherwise entitled.” USAA v. Parker, 200 P.3d 350, 353 n.3 (Colo.

2009) (quoting Goodyear Tire, 193 P.3d at 825).

      The personal injury statute, by contrast, applies more narrowly “in tort

actions for personal injuries.” Farmers, 113 P.3d at 133. The Colorado Supreme


                                        -16-
Court has emphasized that the statute “makes clear that its focus is upon the

nature of the damages sought by the plaintiff, rather than the nature of the

defendant’s duty to pay those damages.” Parker, 200 P.3d at 360.

      Romero argues the tort of wrongful discharge in violation of public policy

did not result in any injury to his real or personal property and it accordingly must

result in a personal injury. He points to our decision in David v. Sirius Computer

Solutions, Inc., 779 F.3d 1209 (10th Cir. 2015), which considered whether

damages flowing from a negligent misrepresentation fell under § 13-21-101(1).

We found the statutory term “personal injury” means “ any invasion of a personal

right,” id. at 1210 (alteration omitted) (quoting Black’s Law Dictionary 802 (8th

ed. 2004)). We went on to conclude “a tort which is not an injury to property is

treated, by definition, as an injury to the person.” Id. (cleaned up). Finally, we

found that, although the Colorado Supreme Court had not “squarely addressed the

issue,” the personal injury statute could apply “to both economic and

noneconomic damages when all the damages stemmed from a personal injury.”

Id. at 1211 (citing Morris v. Goodwin, 185 P.3d 777 (Colo. 2008)).

      But Romero’s reliance on David is misplaced. Our first duty is to apply the

substantive law of the state as articulated by its highest court. See Stickley, 505

F.3d at 1077. The Colorado Supreme Court’s decision in Parker directs us to

focus on the nature of the damages sought by Romero. He sought as damages the


                                         -17-
wages he would have earned from H&P and described his damages as economic

losses from lost wages resulting from his improper termination. 4 These damages

are focused on monetary injury—the loss of something to which Romero was

otherwise entitled—not the invasion of a personal right. The district court also

correctly observed that the tort of wrongful termination in violation of public

policy vindicates a public interest, not a personal impairment. Thus, Romero’s

damages fall within the comprehensive scheme established by the wrongful

withholding statute.

      Indeed, David supports our interpretation. There, the court addressed

negligent misrepresentation, a tort that caused the plaintiff reputational harm and

led to diminished earning capacity and lost business prospects. See David, 799

F.3d at 1210. Negligent misrepresentation under those circumstances causes

damages that are deeply personal, even if they are quantified in economic terms.

Thus, the personal injury statute can, in some circumstances, apply to economic



      4
        As the district court correctly concluded, Romero is entitled to
prejudgment interest only on the loss of past income. An at-will employee has no
property interest in future wages, therefore such wages cannot be considered
“something to which [the plaintiff] was otherwise entitled.” Colorado courts have
uniformly held that under the wrongful withholding statute, “interest may not be
awarded on lost future wages and benefits.” Shannon v. Colo. Sch. of Mines, 847
P.2d 210, 213 (Colo. App. 1992); see also Harris Grp., Inc. v. Robinson, 209 P.3d
1188, 1207 (Colo App. 2009) (citing Shannon with approval); Life Care Ctrs. of
Am., Inc. v. E. Hampden Assocs. Ltd. P’ship, 903 P.2d 1180, 1189 (Colo. App.
1995) (same).

                                        -18-
damages under the Parker test. By contrast, Romero’s damages do not remedy

the invasion of a personal right; instead, they remedy a monetary injury stemming

from the violation of a public-policy rule. Under David’s reasoning and the

Parker test, the wrongful withholding statute applies.

      We therefore conclude the district court correctly applied the wrongful

withholding statute to the calculation of Romero’s prejudgment interest.

                                III. Conclusion

      For the foregoing reasons, we AFFIRM the judgment of the district court

on all issues presented.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge




                                        -19-
