UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOLLENE PROVENCIO, Plaintiff - Appellant,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BALDOCK , and BACHARACH , Circuit Judges.

________________ _________________ Jollene Provencio app eals from the district court’s grant of su mmary judgment in favor of Intel Corporation on her complaint as serting retali ation 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 ha s 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 ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

### April 30, 2019
Elisabeth A. Shumaker Clerk of Court2 I. Background Provencio worked for Intel for nearly 20 years. In March 2015, she participated as a witness in an internal investigation of anoth er employee’s age-discrimination complaint. A lthough Provencio did not tell the investigator she had witnessed age discrimination , she did complain that some of her supervisors had created a hostile work environmen t. She described a female sup ervisor, Janice Lee, as a bully who seemed to have i ssues with women, and she stated that a male supervisor, Randie Dorrance, woul d not write up any managers. A few months later, Provencio’s direct supervisor , Keith Baumga rdner, told her that three other managers—L ee, Dorrance (who was Baumgardne r’s supervisor), and Jeff Kiehne—had complained that she was unapproachable and difficult to work with. Baumgardner had not receive d complaints about Provencio’ s job performance before she participated in the in ternal investigation. Althoug h Baumgardner was pressured by Dorrance to coach Pr ovencio pursuant to Defendant’ s progressive discipline policy, he disagreed w ith the other managers’ critic isms and he told her not to worry about them. Baumgardner did not tell Provencio that h e was giving her official coaching. She told Baum gardner that she believed the other managers were retaliating against her for partic ipating in the internal inves tigation. 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 prev iously held. Lee initially told Baumgardner that P rovencio should not attend tea m meetings because3 she would be argumentative. Pr ovencio eventually attended a fe w meetings, serving only as a minute-taker. Colleagues began ignoring Provenc io’s emails, which interfered with her job duties. When she appealed to L ee for help, Lee also ignored he r emails. Her peers began isolating her, she became nervous and scared, and her hea lth was affected. Kiehne also reneged on a promis e to allow Provencio to use a sp are work room, which he instead res erved for himself. In June 2015, Provencio complai ned about retaliation to Intel’s human resources department (HR). HR investigated but concluded it co uld not substantiate her claim that Kiehne or Lee had retaliated against her for act ing as a witness in the internal investigation. The inve stigator found no evidence tha t employees in Provencio’s organization knew thatshe had participated in that investigation. HR did find that Kiehne should be forma lly coached for stating that em ployees should shut their mouths if they wanted to keep their jobs, and that Dorran ce should be formally coached for instilling fear in his staff, modeling inappropriat e behavior, and being a poor manager. Dorrance pressured the investigator to reveal wh o had submitted a complaint to HR. Baumgardner advised Provencio t o seek a new position with Intel in a different department. Frustrated by the ongoing hostility at work, she a ttempted to do so in November and December 2015. Intel could have, but did not tran sfer Provencio to a new department. Around that tim e, Dorrance agai n pressured Bau mgardner to coach Provencio about her approachability . Baumgardner continued to believe that4 coaching was not warranted. Whe n he met with Dorrance and Kieh ne to discuss their issues with Provencio, Baumgardne r confirmed to Dorrance that s he had been involved in several HR issues. H R subsequently coached Baumgar dner for making this disclosure. Before Provencio participated in the internal investigation, sh e had been rated as a “Regularly High Performer” whose performance “Exceeded Exp ectations.” But Intel downgraded her job performan ce rating to “Successful” in her annual review for 2015. The lower rating aff ected her compensation. In January 2016, Provencio compl ained again to HR about ongoing retaliation by Kiehne and Dorrance. In early March 2016, she filed an inte rnal report alleging that a co-worker who reported to Kiehne had made statements in the workplace about gun violence that made her fearfu l. In her complaint, Provenci o noted she had previously reported Kiehne for i nsinuating gun vi olence against an employee. Provencio took a leave from her j ob at Intel from March 22 to A pril 28, 2016, to deal with the stress and anxi ety caused by her work environm ent. During that period, she received a job offe r from another employer. She ga ve written notice that she was resigning when she returned to work at Intel. She priv ately told Baumgardner that she was leavi ng Intel due to the hostile work environment. She felt that, after her two complai nts about retaliation for her p articipation in the internal investigation, her only option wa s to quit. Before her resigna tion, Intel had not threatened her with b eing laid-off, demoted , or disciplined. P rovencio unsuccessfully5 attempted to rescind her resigna tion notice after Intel subsequ ently announced a voluntary separation program. Provencio filed this lawsuit alle ging a single state-law claim: retaliation in violation of the NMHRA, which pr ovides: “It is an unlawful dis criminatory practice for . . . any person or employe r to . . . engage in any form of threats, reprisal or discrimination against any pers on 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 gr anted the motion, holding that Provencio failed to establish a prima facie claim of retaliation because she did no t come forward with evidence that Intel took an adve rse action against her. More s pecifically, the court held that she did not present e vidence from which a reasonable jury could conclude that she had been const ructively discharged.
II. Discussion “We review a district court’s grant of summary judgment de novo , applying the same legal standard a s the district court.” Hiatt v. Colo. Seminary , 858 F.3d 1307, 1315 (10th Cir. 2017) (in ternal quotation marks omitted). “The court shall grant summary judgment if the m ovant shows that there is no gen uine dispute as to any material fact and the movantis entitled to judgment as a m atter of law.” Fed. R. Civ. P. 56(a). “In applying th is standard, we view the evidenc e and the reasonable

1 The district court had diversity jurisdiction under 28 U.S.C. § 1332.6 inferences to be drawn from the evidence in the light most favo rable to the nonmoving party.” Hiatt , 858 F.3d at 1315 (internal quotation marks omitted). “[I]t is appropriate t o rely upon federal ci vil rights adjudica tion 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 particu lar, New Mexico courts apply t he 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 estab lishing a prima facie case.” Id. “To prove a prima facie case of retaliation, [Prove ncio] needed to show that: (1) she engaged in protected activity; (2) she suff ered an adverse employment acti on; 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 fai led on the second element because a reasonable jury could not conclude that she h ad been constructively discharged. 2 In her opening brief, Provencio a rgues that the district court applied the wrong standard for determining whethe r the evidence supported a findi ng that she suffered an adverse employment action. 3 The court held that a cons tructive discharge “occurs

2 Provencio also alleged that the hostile work environment const ituted an adverse employment action. The d istrict court did not examine that allegation because she “made no legal argum ents about a hostile work envir onment, even though that type of adverse acti on carries with it a specific l egal standard.” Aplt. App., Vol. 2 at 301. Provencio does not challenge that ruling on appeal.

3 Provencio also argues in her ope ning brief that the district c ourt erred in holding that her participation in the internal investigation di d not amount to protected7 when the employer by its illegal discriminatory acts has made w orking conditions so difficult that a reasonable pers on in the employee’s position w ould feel compelled to resign.” Aplt. App., Vol. 2 at 301 (internal quotation marks o mitted). For this proposition, the distr ict 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 corre ct standard for adverse action a pplicable to her NMHRA retaliation claim is set f orth in the Supreme Court’s dec ision in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006). Burlington Northern held that “the antiretaliati on provision [of Title VII], unlik e the substantive provision, is not limited to disc riminatory 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 ch allenged action materially adve rse, 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 presen ted sufficient evidence of a materially adverse action under the Burlington Northern standard to demonstr ate 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 chan ged her position on the

activity under the first element of her prima fac ie retaliation claim under the NMHRA. We need not address this issue to resolve her appeal.8 applicable standard on appeal: “She changes from arguing that the constructive discharge standard applies to a rguing that a lesser adverse act ion standard applies.” Aplee. Br. at 12. In this court, an appellant is required to c ite in her opening brief the precise references in the record w here an appeal issue was rais ed and ruled on in the district court. 10th Cir. R. 28. 1(A). Provencio has not satis fied this briefing requirement with respect to her Burlington Northern argument. Our independent review of the record indicat es that Intel conte nded in its summary judgment motion that Pr ovencio’s retaliation claim fail ed because the evidence did not support a findi ng that she was constructively discharged. Aplt. App., Vol. 1 at 78-82. Citing Gormley and other cases in acco rd, Intel argued that the applicable standard was wheth er Provencio had no other choi ce 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 conditi ons were so intolerable that any reasonable person would have been compelle d 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 w orker 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 cour se, that a federal appellate co urt 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 distric t court to the issue and seeks a ruling.” Somerlott v. Cherokee Nation Distribs., Inc. , 686 F.3d9 1144, 1150 (10th Cir. 2012) (in ternal quotation marks omitted). A theory that was not raised in the distric t court is forfeited. Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011). “[W ]e will entertain forfeited th eories on appeal, but we will reverse a district court’ s judgment on the basis of a f orfeited 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 opportunit y—and duty—to craft their own legal theories for relief in the distri ct court. It is the significant but limited job o f our appellate system to corr ect errors made by the district court in assessi ng the legal theories presentedto it, not to serve as a second-shot forum wh ere 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 leg al theory satisfies the plain error standard. “And the failure to do so . . . surely ma rks the end of the road foran 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 a dverse employment action that th e district court applied. An appellant’s opening brief must identify “appellant’s content ions and the reasons for them, with citati ons to the authorities and parts of the re cord on which the appellant relies.” Fed. R. App. P . 28(a)(8)(A). “Consistent w ith this requirement, we routinely have declined to consid er arguments that are not rais ed, or are inadequately presented, in an appella nt’s opening brief.” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007). “Stated di fferently, the omission of an issue in an opening brief generally forfeits appellat e consideration of that issue. ” Id.10 Provencio does address in her r eply brief the standard applied by the district court in granting summary judgme nt, but that too is insufficien t to preserve the issue for appellate review. See Stump v. Gates , 211 F.3d 527, 533 (10t h Cir. 2000) (“This court does not ordinarily review issues raised for the first ti me in a reply brief.”). Provencio’s failure to address th is issue in her opening brief deprived Intel of the opportunity to respond to her bel ated factual assertions and ar guments. See Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1278 (10th Ci r. 1994) (“[T]o allow an appellant to raise new arguments at this juncture would be mani festly unfair to the appellee who, under our rules, has no opportunity for a written response.” (internal quotation marks omitted)). We s ee no compelling reason in this case to deviate from the rule that contentions not r aised in an opening brief are fo rfeited. 4
III. Conclusion The judgment of the distr ict court is affirmed.

Entered for the Court
Bobby R. Baldock Circuit Judge

4 We have sometimes considered ar guments raised for the first ti me in a reply brief because the appellant was responding to a contention rais ed 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 cas e are distinguishable.