                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        August 2, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 ERIC HONEYFIELD,

           Plaintiff-Appellant,                               No. 10-2052
 v.                                              (D.C. No. 1:08-CV-01034-MCA-GBW)
                                                            (D. New Mexico)
 CITY OF GALLUP,

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY, and O’BRIEN, Circuit Judges.


                                             I

       Plaintiff-Appellant Eric Honeyfield sued his former employer, Defendant-Appellee

City of Gallup (the City), alleging that his employment had been unlawfully terminated in

retaliation for his refusal to violate a consent decree under which the City had agreed to

certain procedures for its employment practices. The consent decree had settled a prior

claim of employment discrimination that had been brought against the City for alleged

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Mr.

Honeyfield averred in his complaint that his refusal to violate the consent decree


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
constituted opposition to an unlawful, discriminatory practice and that he was, therefore,

an “aggrieved person” entitled to sue under Title VII. Thus, the district court’s

jurisdiction was based on 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3).

       Following discovery, the district court granted the City’s motion for summary

judgment, holding that Mr. Honeyfield had failed to produce evidence from which a

reasonable jury could determine that he had been terminated, rather than having resigned

voluntarily. The district court further held that Mr. Honeyfield had failed to produce

evidence to show that he had been subject to constructive discharge. In the alternative,

the court held that the City had produced a legitimate, nondiscriminatory justification for

its action, and that Mr. Honeyfield had failed to produce evidence to show that the City’s

explanation was a pretext for discriminatory conduct. Mr. Honeyfield appeals. This

court is granted jurisdiction by 28 U.S.C. § 1291.1

                                             II

       Mr. Honeyfield was employed by the City as city manager, a position he had held

since 2003. In March 2007, Harry Mendoza was sworn in as the new mayor. One day

after he took office, Mayor Mendoza called Honeyfield and asked whether city council


       1
        During the course of this appeal, we noted a jurisdictional defect. The district
court’s “judgment” of February 17, 2010, did not dispose of the City’s counterclaim
against Mr. Honeyfield, and so was not a final judgment for purposes of section 1291. In
response to an order from this court, the parties sought and the district court granted an
order under Fed. R. Civ. P. 54(b) certifying the February 17, 2010, order for immediate
appeal. Under our precedents, the district court’s Rule 54(b) certification has ripened the
prematurely filed notice of appeal, and we have jurisdiction to decide the appeal. See
Lewis v. B.F. Goodrich Co., 850 F.2d 641, 643-46 (10th Cir. 1988) (en banc).

                                            -2-
member Bill Nechero could be hired as assistant city manager. No such position existed,

but the mayor was contemplating creating the position. Mr. Honeyfield expressed

concern about Mr. Nechero’s qualifications and also told Mayor Mendoza that a federal

court consent decree prohibited the pre-selection of candidates for employment by the

City. Mayor Mendoza then got Mr. Nechero on the line for a three-way call. Mr.

Honeyfield explained the idea of the position and the necessary qualifications to Mr.

Nechero, who then said that he was not interested in the position.

       Mr. Honeyfield made a contemporaneous note about the conversation in which he

said that he had then offered his resignation to Mayor Mendoza on the condition that he

receive six months’ severance pay. The mayor said that he would think about it over the

weekend. The following Monday, Mayor Mendoza told Mr. Honeyfield that everything

was fine.

       Soon after, the city council met in executive session to discuss whether to create

the position of assistant city manager. The consensus was that there was no need for the

position. At least one council member testified in deposition that there was also a lack of

funds for the position. Mr. Honeyfield himself thought the idea was dead at that time,

and he heard nothing else about it.

       About two months later, on Friday, June 8, 2007, Mr. Honeyfield was talking with

Mayor Mendoza, and the conversation turned to the fact that a recently hired employee

had failed to report for work. When the mayor asked why, Mr. Honeyfield said he would

find out for him. Mr. Honeyfield later told Mayor Mendoza that the employee had

                                            -3-
decided not to take the job and that the mayor had “Mary Ann Armijo to thank for that.”

The very mention of the name of Ms. Armijo in connection with city business was

upsetting to the mayor, who testified that he began to do a “slow burn” after that. Ms.

Armijo was a former city council member. Mayor Mendoza testified that he did not want

her to have anything to do with running the city during his term as mayor.

       The mayor decided to ask for Mr. Honeyfield’s resignation, and he spoke about it

with three of the city council members, at least two of whom were supporters of Mr.

Honeyfield. Apparently this was on the same day as the mayor’s conversations with Mr.

Honeyfield. One of these council members, Mr. Butler, testified that Mayor Mendoza

told him that he just could not work with Mr. Honeyfield, though he did not offer any

reasons. Another council member, Mr. Landavazo, did not recall that the mayor

discussed asking for Mr. Honeyfield’s resignation, but did recall that the mayor had

expressed to him in a general way that he was unhappy with Mr. Honeyfield’s

performance. The third member, Mr. Azua, said that the mayor told him that Mr.

Honeyfield was ignoring his advice and consulting the previous administration.

       That same day, Friday June 8, Mr. Butler and Mr. Landavazo called Mr.

Honeyfield to tell him that he was probably going to be fired on Monday. (Although as

will be discussed, firing Mr. Honeyfield probably would have taken at least two weeks

because he could only have been fired by the city council voting in an open meeting, and

the council would have had to list the matter as an agenda item publicized in advance.)

Mr. Honeyfield knew that he had the support of these two council members, but testified

                                            -4-
that he decided on Sunday, two days after these conversations, to resign.

       On Monday, June 11, the mayor requested Mr. Honeyfield’s resignation, telling

him that he had the votes on the city council to fire him. In response, Mr. Honeyfield

negotiated the terms of his severance. He did not try to keep his job. Mr. Honeyfield

knew, from his own past experience as city manager of Raton, New Mexico, that he had

the right to a public hearing at which he could defend himself. In fact, he had done that

twice during his tenure in Raton, and had succeeded in keeping his job the first time.

                                            III

       Mr. Honeyfield’s complaint alleged that he had suffered retaliation in violation of

Title VII “because he opposed an unlawful, discriminatory practice.” More specifically,

he alleged that he was terminated because he would not violate the consent decree by

hiring Mr. Nechero as assistant city manager without going through the hiring procedures

required under the consent decree. The anti-retaliation provision in Title VII prohibits

discrimination against an employee because he has opposed a practice that Title VII

forbids. Because Mr. Honeyfield had no direct evidence of such prohibited action, the

district court applied the burden shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). In this proceeding, for his prima facie case Mr. Honeyfield

had to show (1) protected opposition; (2) an adverse employment action; and (3) a causal

connection between the protected activity and the adverse action.1

       We need only address the second element - whether Mr. Honeyfield suffered an

       1
        See Zokari v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009).

                                            -5-
adverse employment action. Mr. Honeyfield contends that he submitted sufficient

evidence in the district court to support a finding that his employment had actually been

terminated, which of course would satisfy the requirement of an adverse employment

action.2 Mr. Honeyfield contends that the mayor had made it clear that he had sufficient

votes to fire him and that this sufficed to show actual termination. But our court has held

that an actual discharge does not occur “when the employee chooses to resign rather than

work under undesirable conditions.” Fischer v. Forestwood Co., 525 F.3d 972, 980 (10th

Cir. 2008).

       The evidence here showed that Mr. Honeyfield knew that the mayor could not

terminate him unilaterally; that he could only be discharged after a vote by the full

council; that such a vote could only be held after notice had been given at a regularly

scheduled meeting or a special meeting; that the matter could not be considered by the

council at a regularly scheduled meeting until June 26, more than two weeks after Mr.

Honeyfield resigned; that there were no special meetings set; that two of the five council

members supported him; and that he could insist on a public hearing, at which he could

have legal counsel.

       We hold that no rational jury could find that Mr. Honeyfield’s employment had

actually been terminated in these circumstances. To hold otherwise, i.e., to conclude that

a jury could find that he had been fired, would necessarily mean that the procedural

       2
      See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998). Mr.
Honeyfield expressly disclaims any reliance on the theory of constructive discharge.
Accordingly, unlike the district court we will not consider that theory.

                                             -6-
protection of a due process hearing is meaningless and that the hearing itself could not be

more than a sham. This result would be illogical and incorrect; it would be ironic to so

hold in this case, because Mr. Honeyfield’s own history – of having demanded a hearing

and so having preserved his job when he had been city manager of Raton – belies the

notion that the procedural protections are a show without substance.

       Mr. Honeyfield contends, however, that the test for whether an employee has been

discharged is whether a reasonable employee could infer discharge from the statements or

conduct of the employer, citing Pennypower Shopping News, Inc. v. N.L.R.B., 726 F.2d

626, 629 (10th Cir. 1984). The issue in Pennypower, a labor case, was whether the

employer had committed an unfair labor practice by causing employees to think that they

had been fired. 726 F.2d at 627-28. We feel that the holding of Pennypower does not

control the question here.

       We recognize, however, that in Fischer we did cite and quote Pennypower in a

Title VII case. 525 F.3d at 980. But even if we were to apply the standard urged by Mr.

Honeyfield, it would not lead us to find error in the district court’s grant of summary

judgment for the City of Gallup. A reasonable employee in Mr. Honeyfield’s position

would not infer discharge from the mayor’s statement. Instead, he would have known, as

Mr. Honeyfield clearly knew, that the mayor’s desire to be rid of him and the mayor’s

belief that a majority of the city council would support the mayor were not enough to end

his employment, nor did those facts necessarily mean that his employment would soon

end. Instead, a reasonable employee would know, as Mr. Honeyfield knew, that there

                                            -7-
was a chance for him to keep his job. He was not actually terminated.3

                                            IV

       We find no error in the district court’s determination that Mr. Honeyfield’s

employment was not actually terminated. For the foregoing reasons, the judgment of the

district court is affirmed.

       IT IS SO ORDERED.



                                                               Entered for the Court

                                                               William J. Holloway, Jr.
                                                               Circuit Judge




       3
       We note again that Mr. Honeyfield expressly waived any reliance on the theory of
constructive discharge. Nothing in this order and judgment addresses the questions that
would arise from these circumstances if that theory had been advanced.

                                            -8-
