                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         February 8, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court


    GEORGE EVANS,

                 Plaintiff-Appellant,

     v.                                                   No. 04-2302
                                                (D.C. No. CIV-03-809-RHS/WDS)
    INTEL CORPORATION,                                      (D. N.M.)

                 Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


          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      This order and judgment is not binding precedent, except under the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. The 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.
      Plaintiff George Evans appeals the district court’s grant of defendant Intel

Corporation’s motion for judgment as a matter of law, Fed. R. Civ. P. 50. Our

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

      Mr. Evans was employed by Intel from 1994 until 2003. He alleges that in

fall 2002 he became concerned about Intel’s emissions and voiced his concerns.

Mr. Evans resigned from Intel in May 2003 and thereafter filed a complaint for

wrongful termination in New Mexico state court. In it he asserted that Intel

constructively discharged him and that Intel’s constructive discharge constituted

(1) a breach of its implied employment contract and (2) a retaliatory discharge.

Intel removed the case to federal court based upon diversity of citizenship. In

2004, a jury was empaneled and the case went to trial. At the close of

Mr. Evans’s case-in-chief, the district court granted Intel’s motion for judgment

as a matter of law, observing that Mr. Evans failed to provide a legally sufficient

basis for a reasonable jury to find that he was constructively discharged.

      Mr. Evans appeals. He asserts that the district court erred by refusing to

admit certain testimony and documents, and by granting Intel’s motion for

judgment as a matter of law. These issues, Mr. Evans acknowledges, are

interrelated; that is, “if there was a failure in the plaintiff’s case-in-chief to make

a prima facie case,” but “none of the suppressed testimony or exhibits would have




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cured [that] failure . . . , their exclusion, even if error, would not make a

difference to the outcome.” Aplt. Br. at 27.

      We review de novo a district court’s ruling on a motion for judgment as a

matter of law, applying the same standard as the district court and construing the

evidence and all inferences therefrom in a light most favorable to the nonmovant.

Shaw v. AAA Eng’g & Drafting, Inc., 213 F.3d 519, 529 (10th Cir. 2000). In

diversity cases, such as this, federal law governs the appropriateness of a motion

for judgment as a matter of law, while the substantive law of the forum state

governs the analysis of underlying claims. Wolfgang v. Mid-Am. Motorsports,

Inc., 111 F.3d 1515, 1522 (10th Cir. 1997).

      Having reviewed the briefs, the record, and the law in light of the

applicable standard of review, we hold that Mr. Evans failed to provide a legally

sufficient basis for a reasonable jury to find that Intel constructively discharged

him. To prove constructive discharge an employee must demonstrate “that the

employer made working conditions so intolerable, when viewed objectively, that a

reasonable person would be compelled to resign.” Gormley v. Coca-Cola Enters.,

109 P.3d 280, 282-83 (N.M. 2005). Mr. Evans’s concerns about Intel’s emissions

and several unpleasant events–being placed on a corrective action plan, asked to

renegotiate his tax debt, and questioned about his statement that his boss

“sucked,” Aplt. App. Vol. II at 320–is not enough to convert a resignation into a


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constructive discharge. See Gormley, 109 P.3d at 283 (citing examples of actions

that do and do not constitute constructive discharge and observing that “[i]n many

cases, the circumstances surrounding resignation are not egregious enough to

support a [constructive discharge] claim”). 1

      Further, we have reviewed the evidence excluded by the district court and

are satisfied that, even if all of the contested evidence had been admitted,



1
       Each of the five cases cited by Mr. Evans for the proposition that “[t]here
can be constructive discharge in an employer’s thwarting of an employees’ [sic]
professional duties,” is either distinguishable, misconstrued by counsel, or both.
Univ. of Tex. Med. Branch v. Hohman, No. 01-98-01382-CV, 1999 WL 681990
(Tex. App. Aug. 31, 1999) (unpublished), withdrawn and superseded, 6 S.W.3d
767, 773 (Tex. App. 1999) (addressing whether constructive discharge is a
termination under Texas Whistleblower Act, without deciding whether facts
alleged constituted constructive discharge); Neal v. Honeywell Inc., 995 F. Supp.
889, 891-93, 896, 899 (N.D. Ill. 1998) (stating jury was justified in concluding
that threats of physical injury, a mandatory one-month vacation, being ignored for
months, and given no work for several weeks constituted constructive discharge),
aff’d, 191 F.3d 827 (7th Cir. 1999); Acrey v. Amer. Sheep Indus. Ass’n, 981 F.2d
1569, 1573-74 (10th Cir. 1992) (stating evidence that employer threatened to fire
employee if she did not quit, removed her long-standing job responsibilities, and
deliberately withheld training necessary to perform new duties was sufficient to
support jury’s determination employee was constructively discharged); James v.
Sears, Roebuck & Co., 21 F.3d 989, 993 (10th Cir. 1994) (holding evidence of
systematic threats and pressure to take early retirement, resulting in substantial
loss in benefits; or to refuse early retirement, be transferred, and earn less in new
position was sufficient to support jury’s finding of constructive discharge);
O’Brien v. Stolt-Nielsen Transp. Group, 838 A.2d 1076, 1083 (Conn. Super. Ct.
2003) (holding plaintiff-attorney sufficiently pled constructive discharge by
alleging that, based on his knowledge of employer’s violation of United States
and international law, attorney was ethically barred from providing legal advice
that would aid employer’s ongoing criminal conduct and subject attorney to
personal criminal liability).

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Mr. Evans still would have been unable to prove constructive discharge. In other

words, none of the excluded evidence was material to his constructive discharge

claim. Since Mr. Evans’s substantial rights would have been affected only by the

exclusion of evidence material to constructive discharge, we need not determine

whether the district court otherwise abused its discretion in excluding the

contested evidence. See K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148,

1155-56 (10th Cir. 1985) (stating that the exclusion of evidence is reviewed for

abuse of discretion, and noting that an “error in the admission or exclusion of

evidence is harmless if it does not affect the substantial rights of the parties”).

      Because, as we hold today, Mr. Evans was unable to demonstrate the

threshold issue of constructive discharge, we do not reach his breach-of-contract

and retaliatory-discharge claims. See Gormley v. Coca-Cola Enters., 85 P.3d 252,

256 (N.M. App. 2003) (“Constructive discharge is a prerequisite to a wrongful

termination claim when an employee, such as Plaintiff, resigns.”), aff’d, 109 P.3d

280 (N.M. 2005). The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge



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