                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       August 20, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court



    M A BROU K CH A A RA ,

                Plaintiff-Appellant,

    v.                                                   No. 06-2191
                                                (D.C. No. CIV-05-278 JB/RLP)
    INTEL CORPORATION; DAVID                              (D . N.M .)
    BAGLEE; BRIAN RASH AP; and
    TA M M Y WA SH ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




         Plaintiff-Appellant M abrouk Chaara appeals the district court’s judgment

dismissing his complaint, its order determining that diversity jurisdiction exists as

to this matter, and its order granting summary judgment to defendants as to his

claims of national origin discrimination and retaliation in violation of the New



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
M exico Human Rights Act (“NM HRA”), breach of employment contract, breach

of the covenant of good faith and fair dealing, and defamation. Because we agree

with the district court’s analysis and its rulings on all of M r. Chaara’s points of

error, we AFFIR M .

                                           I.

      M r. Chaara is a United States citizen who was born in Tunisia and is of

Arab descent. He worked for defendant Intel in Rio Rancho, New M exico, as a

grade-seven senior process engineer. In September 2001, M r. Chaara filed a

charge of discrimination and retaliation against Intel and defendant-appellee

David Baglee with the Equal Employment O pportunity Commission (“EEOC”).

The charge alleged, among other things, that they falsely changed his

performance review and attempted to unjustifiably place him under a corrective

action plan. According to M r. Chaara, he decided not to file a federal court

complaint because Intel gave him an 8.5% raise, doubled his stock options, and

told him he “was a valuable employee.” Aplt. A pp. at 325.

      In April of 2003, M r. Chaara filed a discrimination charge with the New

M exico Human Rights Commission (“NM HRC”) alleging that defendants had

discriminated against him because of his national origin, religion, and gender and

had retaliated against him for filing his first discrimination charge. The heart of

M r. Chaara’s discrimination claim was and is that defendants failed to award him

a “group leader” position that he applied for and then failed to promote him to a

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grade-eight senior process engineer after giving him what he considered to be an

impermissibly low ranking on his 2002 performance review. The NM HRC issued

an order of non-determination on M r. Chaara’s religious and gender claims but

found probable cause as to his national origin and retaliation claims. On

February 17, 2004, he moved to Colorado to take a job as a group leader in an

Intel plant there.

       On April 16, 2004, M r. Chaara filed a complaint in New M exico state court

alleging gender discrimination in violation of the NM HRA, breach of employment

contract, breach of the covenant of good faith and fair dealing, and defamation

(“Chaara I”). On June 2, 2004, defendants removed Chaara I to federal district

court claiming that M r. Chaara w as a Colorado citizen, Intel was a Delaw are

corporation with its principal place of business in California, and the remaining

defendants w ere New M exico citizens. The district court remanded the case in

August 2004, determining that diversity of citizenship was lacking because,

although he was living in Colorado, M r. Chaara was still domiciled in New

M exico at the time he filed his complaint.

       Subsequently, the NM HRC also denied M r. Chaara’s national origin

discrimination and retaliation claims and, on February 10, 2005, he filed a second

complaint in New M exico state court alleging national origin discrimination and

retaliation in violation of the NM HRA, breach of employment contract, breach of

the covenant of good faith and fair dealing, and defamation (“Chaara II”). On

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M arch 10, 2005, the New M exico state court consolidated Chaara I and Chaara II

at the request of the parties. Intel promptly removed the consolidated cases to

federal district court.

A. O rder Granting R emand in Part and D enying R emand in Part

       Following an evidentiary hearing on M r. Chaara’s motion to have the

consolidated cases remanded to state court, the district court granted the motion

to remand w ith regard to Chaara I but denied the motion to remand with regard to

Chaara II. The district court ruled as to Chaara I that it was bound by its

previous decision to remand by 28 U.S.C. § 1447(d) (providing that, with one

exception not applicable here, “[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or otherw ise”).

       As to Chaara II, M r. Chaara argued that remand was required because

(1) he was still domiciled in New M exico at the time that he filed the complaint,

and (2) the district court’s ruling in Chaara I governed Chaara II as well because

when the cases were consolidated they took Chaara I’s case number. In turn,

defendants argued that both of the cases were removable because they had been

consolidated and because M r. Chaara was domiciled in Colorado at the time the

second complaint was filed.

       The district court ruled that “[c]onsolidation is not like a marriage,

producing one indissoluble union from two distinct cases. Instead, consolidation

is an artificial link forged by a court for the administrative convenience of the

                                          -4-
parties; it fails to erase the fact that, underneath consolidation’s facade, lie two

individual cases.” Aplt. App. at 342(2). 1 It therefore held that 28 U.S.C.

§ 1447(d) did not bar it “from deciding whether Chaara II . . . possesse[d]

subject-matter jurisdiction.” Id.

      The district court went on to hold that there was complete diversity of

citizenship when Chaara II was filed because M r. Chaara was domiciled in

Colorado at the time. The court found that he moved to Colorado almost a year

before his suit was filed and had evinced an intent to remain in Colorado

indefinitely because, among other things, his Colorado job was a regular, full-

time position for an indefinite period and he had moved his entire family to

Colorado with the exception of a college-age daughter who was living in the

house he still owned in New M exico. The district court recognized that

M r. Chaara possessed a New M exico driver’s license and bank account, his car

was still registered in New M exico, he still owned a house in New M exico, and he

testified that he had “definite plans” to move back to New M exico. Aplt. App. at

378(1). But the district court held that it was not required to accept, without

more, M r. Chaara’s mere assertion that he intended to move back to New M exico

and that the evidence showed that M r. Chaara held nothing more than a “floating

intention” to do so, i.e., that he “allegedly desire[d] to return, but ha[d] no idea

1
       M r. Chaara’s appendix has numbered two different sets of pages w ith
numbers 340 to 390. Page cites to these sections will therefore reference either
the first set–(1)–or the second set–(2).

                                           -5-
when or how he w[ould] do so.” Id. at 347(2). The district court therefore

determined that it could properly exercise jurisdiction over Chaara II.

B. Order Granting Summary Judgment to Defendants as to Chaara II

      Defendants thereafter filed a motion for summary judgment as to

M r. Chaara’s claims (1) that he was discriminated against because of his national

origin in violation of the NM HRA, (2) that the adverse employment actions at

issue were taken in retaliation for his 2001 EEOC complaint, (3) that those

actions breached his employment contract with Intel and also the covenant of

good faith and fair dealing implied in that contract, and (4) that a critical passage

in his 2002 performance review amounted to defamation.

      1. National O rigin D iscrimination.

      The NM HRA prohibits discrimination on the basis of national origin. See

N.M . Stat. Ann. § 28-1-7(A). The district court recognized that “[u]nder the

M cDonnell Douglas analysis, which the Supreme Court of New M exico looks to

as helpful, the plaintiff bears the initial burden of demonstrating a prima facie

case of discrimination, which then shifts the burden to the employer to provide a

legitimate, non-discriminatory reason for the adverse employment action.” A plt.

App. at 366(2).

      As to M r. Chara’s claim that he was not awarded the group leader position

because of his national origin, the district court assumed that he had presented a

prima facie case of discrimination. Defendants presented evidence that another

                                          -6-
candidate w as awarded the group leader position because she had more

managerial experience and better interpersonal skills than M r. Chaara and because

a panel of six Intel employees all recommended that she be awarded the job. The

district court ruled that summary judgment was proper as to this part of the claim

because M r. Chaara had not presented sufficient evidence that a reasonable fact-

finder could find that defendants’ proffered non-discriminatory reason for not

making him a group leader was pretextual.

      The second part of M r. Chaara’s national origin discrimination claim was

an allegation that defendants discriminated against him by ranking another

employee in the “first cloud” and him in the “second cloud” and not promoting

him from grade seven to grade eight. Employees at Intel were evidently divided

into “clouds” of similarly-performing employees based on their evaluations.

M r. Chaara averred that this ranking affected the employees’ entitlement to

certain privileges such as bonuses and additional stock options. Defendants

presented evidence that the sole employee who was ranked in the “first cloud”

was placed there because he “had made a wide impact throughout Intel, was often

sought out for assistance, and mentored other employees.” Id. at 368(2) (internal

quotation marks omitted). They also presented evidence that a ranking and rating

group of six group leaders unanimously recommended that the other employee be

the sole employee in the top cloud. The rating group also made M r. Chaara the

top-ranked employee in the second cloud and therefore the second-ranked

                                         -7-
employee in his section. But it was the consensus of the rating group that

M r. Chaara was not performing at a grade-eight performance level and should not

be promoted. The district court also granted summary judgment as to this portion

of the discrimination claim, holding that M r. Chaara had not presented sufficient

evidence that a reasonable fact-finder could find that defendants’ proffered non-

discriminatory reason for failing to place him in the first cloud and promote him

was pretextual.

      2. Retaliation

      The district court also granted defendants summary judgment on M r.

Chaara’s claim that he was not awarded the group leader position and was placed

in the second cloud and not promoted to grade eight in retaliation for filing his

2001 EEOC complaint. The district court held that no reasonable fact-finder

could determine that M r. Chaara had established a prima facie case of retaliation

because the only evidence presented to support his claim was the fact that these

events occurred a year to a year and a half after he filed his EEOC complaint. 2

      3. Breach of Employment Contract, Breach of Implied Covenant of

G ood Faith and Fair Dealing, and D efamation




2
      The district court also determined, as an alternative reason for finding that
M r. Chaara’s placement in the second cloud could not be retaliation, that no
reasonable fact-finder could have found from the record that placement in the
second cloud adversely affected his employment.

                                         -8-
         Finally the district court granted defendants summary judgment as to his

remaining claims. As to M r. Chaara’s claim of breach of contract, the district

court held that M r. Chaara’s contract with Intel was an at-will employment

contract and that the terms of Intel’s “Open Door policy” were not sufficiently

explicit to create in M r. Chaara a reasonable expectation of an implied contract.

It also ruled that Intel’s anti-discrimination policies were too indefinite to form a

contract, and that M r. Chaara’s general claim that Intel’s actions violated “certain

policies, procedure[s] and practices for evaluating employees,” must also fail

because he failed to provide any information as to what policies, procedures and

practices he was referring. Id. at 375(2) (internal quotation marks omitted).

         The district court also found that New M exico does not recognize a cause

of action for breach of the implied covenant of good faith and fair dealing in

at-will employment contracts and that the statement in M r. Chaara’s performance

review that he needed to work on his communication skills could not be

considered defamatory because it was clearly nothing more than an opinion, or, in

the district court’s words, “an entirely subjective judgment about [M r.] Chaara’s

comm unication skills,” id. at 377(2).

         The district court therefore granted defendants summary judgment and

dismissed M r. Chaara’s complaint. M r. Chaara appeals, raising five points of

error.




                                          -9-
                                          II.

      M r. Chaara’s first argument on appeal is that the district court should have

treated Chaara I and Chaara II as one case following the state court consolidation

and remanded the entire matter to state court. M r. Chaara’s second argument is

that, even if it was proper to treat the cases separately, the district court should

have found that he was domiciled in New M exico for the purposes of Chaara II.

M r. Chaara’s third argument is that the district court erred in granting summary

judgment as to his national origin discrimination claim because he presented

sufficient evidence that a reasonable fact-finder could have determined that

defendants’ proffered non-discriminatory reasons for not awarding him the

group-leader position, and for failing to rank him in the top cloud and promote

him to grade eight, were pretextual. M r. Chaara’s fourth argument is that the

district court erred in granting summary judgment as to his retaliation claim

because he presented a prima facie case of retaliation and a reasonable fact-finder

could have determined that defendants’ proffered non-discriminatory reasons for

its actions were pretextual. M r. Chaara’s fifth and final argument is that genuine

issues of material fact existed regarding his claims of breach of employment

contract, breach of implied covenant of good faith and fair dealing, and

defamation.

      As to the district court’s exercise of jurisdiction, “[t]his Court reviews a

district court’s ruling on the propriety of removal de novo.” Lovell v. State Farm

                                          -10-
M ut. Auto. Ins. Co., 466 F.3d 893, 897 (10th Cir. 2006). But the district court’s

determination that M r. Chaara was domiciled in Colorado for purposes of Chaara

II is a mixed question of fact and law and that determination should not be set

aside unless clearly erroneous. Crowley v. Glaze, 710 F.2d 676, 678

(10th Cir. 1983). “Because the jurisdiction of federal courts is limited, there is a

presumption against our jurisdiction, and the party invoking federal jurisdiction

bears the burden of proof.” M erida Delgado v. Gonzales, 428 F.3d 916, 919

(10th Cir. 2005) (internal quotation marks omitted). As to the district court’s

grant of summary judgment following its exercise of jurisdiction, the standard of

review is well-established:

      W e review the district court’s grant of summary judgment de novo,
      applying the same legal standard used by the district court. Summary
      judgment is appropriate “if the pleadings, depositions, answ ers to
      interrogatories, and admissions on file, together with the affidavits, if
      any, show that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of law.”
      Fed. R. Civ. P. 56(c). W hen applying this standard, we view the
      evidence and draw reasonable inferences therefrom in the light most
      favorable to the nonmoving party.

      Although the movant must show the absence of a genuine issue of
      material fact, he or she need not negate the nonmovant’s claim.
      Once the movant carries this burden, the nonmovant cannot rest upon
      his or her pleadings, but must bring forward specific facts showing a
      genuine issue for trial as to those dispositive matters for which he or
      she carries the burden of proof. The mere existence of a scintilla of
      evidence in support of the nonmovant's position is insufficient to
      create a dispute of fact that is ‘genuine’; an issue of material fact is
      genuine only if the nonmovant presents facts such that a reasonable
      jury could find in favor of the nonmovant.



                                         -11-
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005) (quotation omitted).

Finally, our review of the district court’s interpretation of state law is de novo.

Wade v. Emcasco Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007).

                                          III.

      W e have carefully examined the parties’ briefs, M r. Chaara’s appendix, and

the defendants’ supplemental appendix under the standards articulated above.

Following this review, we conclude that the district court applied the proper

standards, conducted an appropriate analysis, and reached the correct result in

both its order determining that it could exercise jurisdiction as to Chaara II and

its order granting summary judgment to defendants as to the claims raised in

Chaara II. Accordingly, we A FFIRM both orders for substantially the reasons

given by the district court and summarized above and, therefore, AFFIRM the

district court’s final judgment dismissing M r. Chaara’s complaint with prejudice.


                                                      Entered for the Court



                                                      Jerome A. Holmes
                                                      Circuit Judge




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