                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 30, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 JOLLENE PROVENCIO,

       Plaintiff - Appellant,

 v.                                                          No. 18-2090
                                                 (D.C. No. 1:16-CV-01268-JCH-JHR)
 INTEL CORPORATION,                                           (D. N.M.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
                   _________________________________

      Jollene Provencio appeals from the district court’s grant of summary judgment

in favor of Intel Corporation on her complaint asserting retaliation in violation of the

New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to 28-1-15 (NMHRA).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I.     Background

       Provencio worked for Intel for nearly 20 years. In March 2015, she

participated as a witness in an internal investigation of another employee’s

age-discrimination complaint. Although Provencio did not tell the investigator she

had witnessed age discrimination, she did complain that some of her supervisors had

created a hostile work environment. She described a female supervisor, Janice Lee,

as a bully who seemed to have issues with women, and she stated that a male

supervisor, Randie Dorrance, would not write up any managers.

       A few months later, Provencio’s direct supervisor, Keith Baumgardner, told

her that three other managers—Lee, Dorrance (who was Baumgardner’s supervisor),

and Jeff Kiehne—had complained that she was unapproachable and difficult to work

with. Baumgardner had not received complaints about Provencio’s job performance

before she participated in the internal investigation. Although Baumgardner was

pressured by Dorrance to coach Provencio pursuant to Defendant’s progressive

discipline policy, he disagreed with the other managers’ criticisms and he told her not

to worry about them. Baumgardner did not tell Provencio that he was giving her

official coaching. She told Baumgardner that she believed the other managers were

retaliating against her for participating in the internal investigation.

       At about the same time, Dorrance reduced Provencio’s job duties by 20-30%

by placing Lee in a lead role on a team that Provencio had previously held. Lee

initially told Baumgardner that Provencio should not attend team meetings because



                                             2
she would be argumentative. Provencio eventually attended a few meetings, serving

only as a minute-taker.

      Colleagues began ignoring Provencio’s emails, which interfered with her job

duties. When she appealed to Lee for help, Lee also ignored her emails. Her peers

began isolating her, she became nervous and scared, and her health was affected.

Kiehne also reneged on a promise to allow Provencio to use a spare work room,

which he instead reserved for himself.

      In June 2015, Provencio complained about retaliation to Intel’s human

resources department (HR). HR investigated but concluded it could not substantiate

her claim that Kiehne or Lee had retaliated against her for acting as a witness in the

internal investigation. The investigator found no evidence that employees in

Provencio’s organization knew that she had participated in that investigation. HR did

find that Kiehne should be formally coached for stating that employees should shut

their mouths if they wanted to keep their jobs, and that Dorrance should be formally

coached for instilling fear in his staff, modeling inappropriate behavior, and being a

poor manager. Dorrance pressured the investigator to reveal who had submitted a

complaint to HR.

      Baumgardner advised Provencio to seek a new position with Intel in a different

department. Frustrated by the ongoing hostility at work, she attempted to do so in

November and December 2015. Intel could have, but did not transfer Provencio to a

new department. Around that time, Dorrance again pressured Baumgardner to coach

Provencio about her approachability. Baumgardner continued to believe that

                                           3
coaching was not warranted. When he met with Dorrance and Kiehne to discuss their

issues with Provencio, Baumgardner confirmed to Dorrance that she had been

involved in several HR issues. HR subsequently coached Baumgardner for making

this disclosure.

       Before Provencio participated in the internal investigation, she had been rated

as a “Regularly High Performer” whose performance “Exceeded Expectations.” But

Intel downgraded her job performance rating to “Successful” in her annual review for

2015. The lower rating affected her compensation.

       In January 2016, Provencio complained again to HR about ongoing retaliation

by Kiehne and Dorrance. In early March 2016, she filed an internal report alleging

that a co-worker who reported to Kiehne had made statements in the workplace about

gun violence that made her fearful. In her complaint, Provencio noted she had

previously reported Kiehne for insinuating gun violence against an employee.

       Provencio took a leave from her job at Intel from March 22 to April 28, 2016,

to deal with the stress and anxiety caused by her work environment. During that

period, she received a job offer from another employer. She gave written notice that

she was resigning when she returned to work at Intel. She privately told

Baumgardner that she was leaving Intel due to the hostile work environment. She

felt that, after her two complaints about retaliation for her participation in the internal

investigation, her only option was to quit. Before her resignation, Intel had not

threatened her with being laid-off, demoted, or disciplined. Provencio unsuccessfully



                                            4
attempted to rescind her resignation notice after Intel subsequently announced a

voluntary separation program.

       Provencio filed this lawsuit alleging a single state-law claim: retaliation in

violation of the NMHRA, which provides: “It is an unlawful discriminatory practice

for . . . any person or employer to . . . engage in any form of threats, reprisal or

discrimination against any person who has opposed any unlawful discriminatory

practice or has filed a complaint, testified or participated in any proceeding under the

Human Rights Act[.]” N.M. Stat. Ann. § 28-1-7(I)(2).1 Intel moved for summary

judgment. The district court granted the motion, holding that Provencio failed to

establish a prima facie claim of retaliation because she did not come forward with

evidence that Intel took an adverse action against her. More specifically, the court

held that she did not present evidence from which a reasonable jury could conclude

that she had been constructively discharged.

II.    Discussion

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

the same legal standard as the district court.” Hiatt v. Colo. Seminary, 858 F.3d

1307, 1315 (10th Cir. 2017) (internal quotation marks omitted). “The court shall

grant summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “In applying this standard, we view the evidence and the reasonable



       1
           The district court had diversity jurisdiction under 28 U.S.C. § 1332.
                                             5
inferences to be drawn from the evidence in the light most favorable to the

nonmoving party.” Hiatt, 858 F.3d at 1315 (internal quotation marks omitted).

      “[I]t is appropriate to rely upon federal civil rights adjudication for guidance in

analyzing a claim under the [NMHRA].” Gonzales v. N.M. Dep’t of Health, 11 P.3d

550, 557 (N.M. 2000). In particular, New Mexico courts apply the burden-shifting

analytical framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05 (1973). Gonzales, 11 P.3d at 557. Under that framework, “a plaintiff

bears the initial burden of establishing a prima facie case.” Id. “To prove a prima

facie case of retaliation, [Provencio] needed to show that: (1) she engaged in

protected activity; (2) she suffered an adverse employment action; and (3) there is a

causal connection between these two events.” Ocana v. Am. Furniture Co., 91 P.3d

58, 72 (N.M. 2004). The district court held that her claim failed on the second

element because a reasonable jury could not conclude that she had been

constructively discharged.2

      In her opening brief, Provencio argues that the district court applied the wrong

standard for determining whether the evidence supported a finding that she suffered

an adverse employment action.3 The court held that a constructive discharge “occurs


      2
        Provencio also alleged that the hostile work environment constituted an
adverse employment action. The district court did not examine that allegation
because she “made no legal arguments about a hostile work environment, even
though that type of adverse action carries with it a specific legal standard.” Aplt.
App., Vol. 2 at 301. Provencio does not challenge that ruling on appeal.
      3
        Provencio also argues in her opening brief that the district court erred in
holding that her participation in the internal investigation did not amount to protected
                                           6
when the employer by its illegal discriminatory acts has made working conditions so

difficult that a reasonable person in the employee’s position would feel compelled to

resign.” Aplt. App., Vol. 2 at 301 (internal quotation marks omitted). For this

proposition, the district court relied on Garrett v. Hewlett-Packard Co., 305 F.3d

1210, 1221 (10th Cir. 2002), and Gormley v. Coca-Cola Enterprises, 109 P.3d 280,

282-83 (N.M. 2005).

       Provencio argues that the correct standard for adverse action applicable to her

NMHRA retaliation claim is set forth in the Supreme Court’s decision in Burlington

Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Burlington

Northern held that “the antiretaliation provision [of Title VII], unlike the substantive

provision, is not limited to discriminatory actions that affect the terms and conditions

of employment.” Id. at 64. Rather, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Id. at 68 (internal quotation marks omitted).

Provencio contends that she presented sufficient evidence of a materially adverse

action under the Burlington Northern standard to demonstrate a prima facie

retaliation claim.

       There is a problem with Provencio’s asserted legal theory: she did not present

it in the district court. Intel states that Provencio has changed her position on the


activity under the first element of her prima facie retaliation claim under the
NMHRA. We need not address this issue to resolve her appeal.
                                            7
applicable standard on appeal: “She changes from arguing that the constructive

discharge standard applies to arguing that a lesser adverse action standard applies.”

Aplee. Br. at 12. In this court, an appellant is required to cite in her opening brief the

precise references in the record where an appeal issue was raised and ruled on in the

district court. 10th Cir. R. 28.1(A). Provencio has not satisfied this briefing

requirement with respect to her Burlington Northern argument.

      Our independent review of the record indicates that Intel contended in its

summary judgment motion that Provencio’s retaliation claim failed because the

evidence did not support a finding that she was constructively discharged. Aplt.

App., Vol. 1 at 78-82. Citing Gormley and other cases in accord, Intel argued that

the applicable standard was whether Provencio had no other choice but to quit. Id. at

78. In her summary judgment response, Provencio cited Gormley, accepted the

standard advanced by Intel, and argued that her working conditions were so

intolerable that any reasonable person would have been compelled to resign. Id.,

Vol. 2 at 126-27, 132. She did not argue in the district court that she need only show

actions by Intel that “well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (internal

quotation marks omitted).

      “It is the general rule, of course, that a federal appellate court does not

consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120

(1976). “An issue is preserved for appeal if a party alerts the district court to the

issue and seeks a ruling.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d

                                            8
1144, 1150 (10th Cir. 2012) (internal quotation marks omitted). A theory that was

not raised in the district court is forfeited. Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1128 (10th Cir. 2011). “[W]e will entertain forfeited theories on appeal, but

we will reverse a district court’s judgment on the basis of a forfeited theory only if

failing to do so would entrench a plainly erroneous result.” Id. This is so because

       [o]ur adversarial system endows the parties with the opportunity—and
       duty—to craft their own legal theories for relief in the district court. It is
       the significant but limited job of our appellate system to correct errors made
       by the district court in assessing the legal theories presented to it, not to
       serve as a second-shot forum where secondary, back-up theories may be
       mounted for the first time.
Id. at 1130 (ellipsis and internal quotation marks omitted). Here, Provencio makes

no attempt to show how her new legal theory satisfies the plain error standard. “And

the failure to do so . . . surely marks the end of the road for an argument for reversal

not first presented to the district court.” Id. at 1131.

       Provencio does not argue in her opening brief that her evidence nonetheless

satisfies the standard for an adverse employment action that the district court applied.

An appellant’s opening brief must identify “appellant’s contentions and the reasons

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

appellant relies.” Fed. R. App. P. 28(a)(8)(A). “Consistent with this requirement, we

routinely have declined to consider arguments that are not raised, or are inadequately

presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099,

1104 (10th Cir. 2007). “Stated differently, the omission of an issue in an opening

brief generally forfeits appellate consideration of that issue.” Id.


                                             9
       Provencio does address in her reply brief the standard applied by the district

court in granting summary judgment, but that too is insufficient to preserve the issue

for appellate review. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This

court does not ordinarily review issues raised for the first time in a reply brief.”).

Provencio’s failure to address this issue in her opening brief deprived Intel of the

opportunity to respond to her belated factual assertions and arguments. See Headrick

v. Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10th Cir. 1994) (“[T]o allow an

appellant to raise new arguments at this juncture would be manifestly unfair to the

appellee who, under our rules, has no opportunity for a written response.” (internal

quotation marks omitted)). We see no compelling reason in this case to deviate from

the rule that contentions not raised in an opening brief are forfeited.4

III.   Conclusion

       The judgment of the district court is affirmed.


                                             Entered for the Court


                                             Bobby R. Baldock
                                             Circuit Judge




       4
        We have sometimes considered arguments raised for the first time in a reply
brief because the appellant was responding to a contention raised in the appellee’s
brief. See, e.g., Sadeghi v. I.N.S., 40 F.3d 1139, 1143 (10th Cir. 1994). The
circumstances in this case are distinguishable.
                                            10
