FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 12, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
SILO ROMERO,
Plainitff - Appellee/ Cross-Appellant,
v. Nos. 17-1454 and 18-1018 (D.C. No. 1:15-CV-00720-NYW) HELMERICH & PAYNE (D. Colo. ) INTERNATIONAL DRILLING CO.,
Defendant - Appellant/ Cross-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
Silo Romero worked on an oil rig for Helmerich & Payne, and was fired
after an extended dispute concerning workers’ compensation. Romero sued H&P
alleging the company either actually or constructively discharged him in
retaliation for pursuing his workers’ compensation claim. The district court
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. permitted Romero to advance his constructive discharge theory over H&P’s
objections. At trial, the jury found H&P both actually and constructively
discharged Romero.
We AFFIRM. We hold the district court did not reversibly err in permitting
Romero’s constructive discharge theory to go to the jury. We also hold the
district court correctly applied the wrongful withholding statute to calculate
Romero’s prejudgment interest.
I. Background
In May 2009, Romero injured his forearm while working on an oil rig for
H&P. He filed a workers’ compensation claim in Colorado and received benefits,
including full salary during recovery. In 2012, Romero still suffered arm pain
from his injury and sought a second surgery. Workers’ compensation covered
medical costs, but H&P refused to pay wages during his convalescence because it
considered the surgery elective. Romero then filed an administrative complaint
seeking back wages for his period of recovery. The parties settled Romero’s
claim for back wages and he then returned to work.
The day after he returned to work, H&P fired him. Although witnesses
provided conflicting testimony about some details, it is undisputed that Romero’s
supervisor called Romero into his office and informed him that he would receive
a disciplinary write-up. Romero refused to sign the write-up because it was blank
-2- and contained a termination section. The supervisor gave Romero a choice: sign
or leave. Romero shook hands with everyone in the room, gathered his
belongings, and left the work site.
Romero sued H&P for wrongful termination in violation of Colorado public
policy, alleging H&P fired him in retaliation for filing a workers’ compensation
claim and administrative challenge. The complaint alleged H&P “discharged” or,
alternatively, “constructively discharged” him.
At trial, Romero testified that H&P fired him from his job and that he did
not resign or quit. Romero also asserted his alternative theory of “constructive
(implied) discharge” and proposed, over H&P’s objection, a jury instruction based
on Colorado’s Civil Jury Instruction 31:10. 1 H&P then proposed, over Romero’s
objection, a jury instruction based on the constructive discharge definition in
1 The pattern jury instruction reads:
31:10 Constructive (Implied) Discharge Even if the plaintiff resigned from (his) (her) employment, if you find that the words spoken or actions taken by the defendant would have led a reasonable person in the plaintiff’s position to believe, and did lead the plaintiff to believe, that (he) (she) had been or was going to be discharged by the defendant, then the plaintiff was, in fact, discharged by the defendant.
Colo. Jury Instr., Civil 31:10 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018).
-3- Instruction 31:9, 2 arguing that even though a constructive discharge instruction
should not be given, Instruction 31:9 should always accompany Instruction 31:10.
H&P moved for judgment as a matter of law, arguing constructive
discharge requires evidence an employee resigned. The trial court denied the
motion and ruled it would give the jury both H&P’s 31:9 instruction and
Romero’s 31:10 instruction. The district court also approved a special verdict
that read, in part:
3. Did defendant actually discharge the plaintiff because the plaintiff exercised his right as a worker to file a worker’s compensation claim for loss wage benefits? ____ YES ____ NO
IF YOUR ANSWER IS YES, YOU HAVE REACHED A VERDICT IN FAVOR OF PLAINTIFF. PLEASE PROCEED TO QUESTION 5 [to calculate Romero’s economic and non-economic damages].
IF YOUR ANSWER IS NO, PLEASE PROCEED TO QUESTION 4.
2 The pattern jury instruction reads:
31:9 Constructive Discharge—Defined. A constructive discharge occurs when an employer deliberately makes or allows an employee’s working conditions to become so intolerable that the employee has no reasonable choice but to quit or resign and the employee does quit or resign because of those conditions. However, a constructive discharge does not occur unless a reasonable person would consider those working conditions to be intolerable.
Colo. Jury Instr., Civil 31:9 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018).
-4- 4. Did defendant constructively discharge the plaintiff because the plaintiff exercised his right as a worker to file a worker’s compensation claim for loss wage benefits? ____ YES ____ NO
The jury answered Question 3 in the affirmative, but instead of skipping to
Question 5 to calculate Romero’s damages, it also answered Question 4 in the
affirmative—despite the special verdict’s direction to answer only one of the
questions.
H&P moved for a new trial, arguing the jury reached an irreconcilably
inconsistent verdict. The trial court determined the verdict was reconcilable
because the jury did not make “contradictory findings.” Romero v. Helmerich &
Payne Int’l Drilling Co., No 15-CV-00720-NYW, 2017 WL 5900361, at *11 (D.
Colo. Nov. 30, 2017). The court therefore denied the motion.
H&P appealed the district court’s denial of the motion for judgment as a
matter of law, constructive discharge jury instruction, and denial of the motion for
a new trial.
Romero cross-appealed the district court’s calculation of damages because
the court determined Colorado’s wrongful withholding statute applies to
prejudgment interest on Romero’s economic damages, rather than the personal
injury statute. Application of the personal injury statute would yield a higher
interest payment to Romero.
-5- II. Analysis
We first consider H&P’s arguments that the jury verdict should be reversed
because the district court erred in instructing the jury on constructive discharge
and that the error created sufficient jury confusion as to cast doubt on the verdict.
We then consider the parties’ competing theories of prejudgment interest.
A. Trial Proceedings
H&P contends the jury should not have been instructed on Romero’s
alternative theory of constructive discharge because it was not supported by the
evidence at trial. Although we partly agree with H&P, we find the district court’s
error harmless.
As a federal court sitting in diversity, we apply Colorado’s substantive law
on constructive discharge. See Hanna v. Plumer, 380 U.S. 460, 465 (1965). We
“look to the rulings of the highest state court” to guide our interpretation of state
law. Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.
2007). When the highest state court has not addressed the question, we predict
how it would rule after giving “proper regard to relevant rulings of other courts of
the State.” Id. (internal quotation marks omitted). Pattern jury instructions may
be helpful and persuasive if they accurately reflect applicable law but do not
themselves have the force of law. See, e.g., Iowa Pac. Holdings, LLC v. Nat’l
R.R. Passenger Corp., 853 F. Supp. 2d 1094, 1099 (D. Colo. 2012).
-6- The Colorado Supreme Court requires two elements for a constructive
discharge claim: (1) intolerable working conditions deliberately created by the
employer, and (2) the employee’s resignation as a result. “To prove a
constructive discharge, a plaintiff must present sufficient evidence establishing
deliberate action on the part of an employer which makes or allows an employee’s
working conditions to become so difficult or intolerable that the employee has no
other choice but to resign.” Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d
1085, 1088 (Colo. 1991) (quoting Wilson v. Bd. of Cty. Comm’rs, 703 P.2d 1257,
1259 (Colo. 1985)), overruled in part on other grounds by Cmty. Hosp. v. Fail,
969 P.2d 667 (Colo. 1998). Intolerable conditions are those “a reasonable person
under the same or similar circumstances would view . . . as intolerable, and not
upon the subjective view of the individual employee.” Id. 3
In addition, “[c]onstructive discharge may occur without a formal firing,
but the words or actions by the employer must ‘logically lead a prudent person to
believe his tenure had been terminated.’” Id. (quoting Civil Rights Comm’n v.
Colorado, 488 P.2d 83, 86 (Colo. App. 1971)). In other words, an employer
3 Colorado courts have pointed to examples of intolerable conditions such as discriminatory demotion or non-recommendation, see Boulder Valley, 805 P.2d at 1088, harassment or coercion, see Christie v. San Miguel Cty. Sch. Dist. R-2(J), 759 P.2d 779 (Colo. App. 1988), or discriminatory reassignment and hostile ostracism, see Gray Moving & Storage, Inc. v. Indus. Comm’n, 560 P.2d 482, 483 (Colo. App. 1976).
-7- cannot use the employee’s resignation as a defense against a wrongful discharge
claim (whether actual or constructive) when the employee reasonably believes he
has been or will soon be terminated.
Recent cases from the Colorado Court of Appeals confirm this
interpretation of Boulder Valley. See Koinis v. Colo. Dep’t of Pub. Safety, 97
P.3d 193, 196 (Colo. App. 2003) (stating the two-element test); Krauss v.
Catholic Health Initiatives Mountain Region, 66 P.3d 195, 202–03 (Colo. App.
2003) (referring to “the resignation element of a constructive discharge claim”).
With this legal framework in mind, we address each of H&P’s three
grounds for reversal. None ultimately succeeds.
1. Motion for Judgment as a Matter of Law
H&P argues the district court reversibly erred when it denied H&P’s motion
for judgment as a matter of law, because resignation is an essential element of a
constructive discharge claim and Romero testified unequivocally he did not
resign. The district court declined to treat Romero’s testimony as dispositive,
denying H&P’s motion because there was sufficient evidence Romero was forced
to resign.
“We review de novo a district court’s disposition of a motion for judgment
as a matter of law, applying the same standard as the district court.” Arnold Oil
Properties LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206 (10th Cir.
-8- 2012) (alteration omitted). “In conducting this review, the evidence and
inferences therefrom must be construed most favorably to the nonmoving party.”
Baker v. Barnard Constr. Co., 146 F.3d 1214, 1220 (10th Cir. 1998) (alteration
and internal quotation marks omitted).
As we have explained, Colorado law requires the elements of intolerable
working conditions and resignation. Boulder Valley uses mandatory language that
“a plaintiff must present sufficient evidence establishing” both elements “[t]o
prove a constructive discharge.” 805 P.2d at 1088 (emphasis added). Without
evidence of both of these elements, the jury should not have been instructed on a
theory of constructive discharge.
Regardless of whether his working conditions satisfied the objective test of
intolerability, Romero testified that he did not resign. Because whether Romero
resigned is uniquely within his knowledge, the court should have accepted his
testimony as true. See Anderson-Prichard Oil Corp., 245 F.2d 831, 834 (10th Cir.
1957) (“[W]hen a party testifies to positive and definite facts which, if true,
would defeat his right to recovery or fix liability upon him, he is bound by this
testimony.”); see also Young v. Vincent, 310 F.2d 709, 712 (10th Cir. 1962)
(“[A]dditional evidence, when in conflict with plaintiff’s own testimony, can
neither weaken nor strengthen plaintiff’s case.”).
-9- In light of these problems, Romero contends Boulder Valley contemplates a
second kind of constructive discharge—one which occurs without a formal firing
and leads the employee to believe his tenure has been terminated, but does not
involve resignation or intolerable working conditions. But both Boulder Valley
and Civil Rights Commission involved resignation and (arguably) intolerable
working conditions, and thus shut the door on any alternative theory of
constructive discharge. See Boulder Valley, 805 P.2d at 1087; Civil Rights
Comm’n, 488 P.2d at 85–86.
Nevertheless, the district court’s denial of judgment as a matter of law was
harmless error. H&P did not articulate any prejudicial effect, either in its briefs
or at oral argument, except insofar as the denial of its motion is entwined with
H&P’s other issues on appeal, which we address separately below. The jury
unanimously found H&P actually discharged Romero as well as constructively
discharged him. The jury’s actual discharge finding independently supports the
verdict and moots any alleged error concerning constructive discharge. See
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1095 n.12 (10th Cir. 2007)
(finding any error in the trial court’s dismissal of plaintiffs’ constructive
discharge claims was harmless because the same factual allegations underlying
them failed before the jury); Roberts v. Wal-mart Stores, Inc., 7 F.3d 1256, 1259
(5th Cir. 1993) (Even if the district court “erred in denying their motion for
-10- judgment as a matter of law” and “erred in permitting the comparative fault issue
to go to the jury and in giving the instruction on comparative fault, the error was
harmless” because it did not affect the jury’s verdict.); Saunders v. Pool Shipping
Co., 235 F.2d 729, 730 (5th Cir. 1956) (“If it was error” to deny a Rule 50
motion, “the error on liability was harmless.”).
In sum, construing the evidence and all inferences in the light most
favorable to the nonmoving party, we conclude the district court’s denial of
H&P’s motion for judgment as a matter of law was harmless error.
2. Jury Instruction
H&P next argues the district court erred in instructing the jury on
constructive discharge. For similar reasons as discussed above, any instructional
error was harmless.
“We read and evaluate the jury instructions in light of the entire record to
determine if they fairly, adequately and correctly state the governing law and
provide the jury with an ample understanding of the applicable principles of law
and factual issues confronting them.” Lederman v. Frontier Fire Prot., Inc., 685
F.3d 1151, 1154–55 (10 th Cir. 2012) (internal quotation marks omitted). “We do
not decide whether the instructions are flawless, but whether the jury was misled
in any way and whether it had an understanding of the issues and its duty to
decide those issues.” Id. at 1155 (cleaned up).
-11- “If we determine that the trial court erred, we must then determine whether
the error was prejudicial.” Id. “The judgment must be reversed if the jury might
have based its verdict on the erroneously given instruction.” Id. (cleaned up).
In the district court, H&P argued it did not terminate Romero. Romero, for
his part, denied he had resigned. In any case, Romero argued, his encounter with
the supervisor would have led a reasonable person to believe and actually did lead
Romero to believe he had been fired. Romero’s argument was supported by
sufficient evidence and the court gave Instruction 31:10.
Instruction 31:10—like the Civil Rights Commission case from which it is
derived—clarifies that an employer cannot use the lack of a formal firing as a
defense against a wrongful discharge claim (actual or constructive) when the
employee reasonably and actually believes he has been terminated. In such a
case, the employee “was, in fact, discharged by the [employer].” Colo. Jury
Instr., Civil 31:10 (Colo. Sup. Ct. Comm. on Civil Jury Instr. 2018). The
instruction is designed to shield employees from precisely the Catch-22 argument
H&P attempted below. Furthermore, Instruction 31:10 may be given “even if” the
employee resigned, but is not limited to that circumstance. Thus, although
Romero’s testimony that he did not resign is dispositive of his constructive
discharge claim, Instruction 31:10 remained appropriate as it pertained to his
-12- actual discharge claim. Therefore the district court did not abuse its discretion by
giving the instruction. See Lederman, 685 F.3d at 1154–55.
But even if H&P is correct that Instruction 31:10 can only be given when
the employee asserts a viable constructive discharge claim, the jury could not
have based its verdict on the erroneous instruction. As we explained above, this
is because the jury found unanimously that H&P had actually discharged Romero
independently of any constructive discharge instructions. The court’s decision to
instruct the jury on constructive discharge simply had no effect on the verdict.
See Emp’rs Liab. Assur. Corp. v. Freeman, 229 F.2d 547, 551 (10th Cir. 1955)
(“[T]he technical incorrectness in the particular instruction under consideration
constituted harmless error which did not affect the final action of the jury in
returning the verdict.”). Nor does H&P suggest the jury gave Romero double
recovery. “At worst, the jury answered yes to alternative theories of liability;
either way defendants are liable.” Hall v. Mabe, 336 S.E.2d 427, 429 (N.C. App.
Ct. 1985). Thus, the jury verdict did not prejudice H&P.
3. Motion for New Trial
Finally, H&P argues the jury’s findings were irreconcilable and the district
court erred by not granting a new trial. Even if we accept some conflict between
the two theories of liability, the jury’s findings did not prejudice H&P.
-13- To safeguard the jury’s function, courts must “reconcile the jury’s findings,
by exegesis if necessary, before they are free to disregard the jury’s special
verdict and remand the case for a new trial. If there is any plausible theory that
supports the verdict, the reviewing court must affirm the judgment.” Johnson v.
Ablt Trucking Co., 412 F.3d 1138, 1143 (10th Cir. 2005) (cleaned up); see also
Domann, 261 F.3d at 983 (“In determining whether there is any inconsistency, we
must accept any reasonable explanation that reconciles the jury’s verdict.”). “To
be irreconcilably inconsistent, the jury’s answers must be logically incompatible,
thereby indicating that the jury was confused or abused its power.” Johnson, 412
F.3d at 1144 (internal quotation marks omitted).
The jury unanimously found both that Romero was actually discharged and
that he was constructively discharged. H&P argues this verdict is “irreconcilably
inconsistent” because the jury found Romero was terminated and simultaneously
that he resigned—assuming Boulder Valley’s two-element test for constructive
discharge.
We disagree. The jury could have concluded that actual discharge and
constructive discharge, though different, overlap. For example, it is possible an
employer could fire an employee and simultaneously lead a reasonable employee
to believe he had been or was going to be discharged. And the jury could have
concluded Romero reasonably believed he was about to be discharged when he
-14- left the company. We therefore have no basis or need to speculate the jury lacked
unanimity in its verdict. The district court correctly concluded that, even if the
jury’s special verdict is legally inconsistent with respect to the theories advanced
at trial, the verdict is logically consistent in its determination Romero was
discharged in violation of public policy.
Due to the jury’s finding of actual discharge, its further finding of
constructive discharge was unnecessary. See Floyd v. Laws, 929 F.2d 1390, 1397
(9th Cir. 1991) (“[S]pecial findings issued in violation of the trial court’s express
instructions” are “surplusage, as a matter of law.”); Frey v. Alldata Corp., 895 F.
Supp. 221, 224 (E.D. Wis. 1995) (“Some failures to follow the jury instructions
differ from logically contradictory verdicts. . . . Failing to follow the court’s
instructions may create only superfluous information, not a logical
contradiction.”).
Because there are plausible interpretations that logically reconcile the jury
verdict, the district court did not abuse its discretion in denying H&P’s motion for
B. Prejudgment Interest
Romero cross-appeals regarding the calculation of prejudgment interest
under Colorado law.
-15- Two Colorado prejudgement interest statutes are at play. The first,
Colorado’s wrongful withholding statute, applies “[w]hen money or property has
been wrongfully withheld.” Colo. Rev. Stat. § 5-12-102(1)(a) (2018) (emphasis
added). The second, Colorado’s personal injury statute, applies “[i]n all actions
brought to recover damages for personal injuries sustained by any person
resulting from or occasioned by the tort of any other person, corporation,
association, or partnership.” Colo. Rev. Stat. § 13-21-101(1) (2018) (emphasis
added).
To interpret Colorado’s substantive law, we once again turn to the Colorado
Supreme Court. The court has explained that the wrongful withholding statute is
“comprehensive in scope,” Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821,
825 (Colo. 2008), and is designed “to compensate the plaintiff for the monetary
losses sustained on wrongfully withheld money or property from the accrual of a
claim for relief until entry of judgment,” Farmers Reservoir & Irr. Co. v. City of
Golden, 113 P.3d 119, 133 (Colo. 2005). In other words, the statute allows
plaintiffs to recover where they “lost or [were] deprived of something to which
[they were] otherwise entitled.” USAA v. Parker, 200 P.3d 350, 353 n.3 (Colo.
2009) (quoting Goodyear Tire, 193 P.3d at 825).
The personal injury statute, by contrast, applies more narrowly “in tort
actions for personal injuries.” Farmers, 113 P.3d at 133. The Colorado Supreme
-16- Court has emphasized that the statute “makes clear that its focus is upon the
nature of the damages sought by the plaintiff, rather than the nature of the
defendant’s duty to pay those damages.” Parker, 200 P.3d at 360.
Romero argues the tort of wrongful discharge in violation of public policy
did not result in any injury to his real or personal property and it accordingly must
result in a personal injury. He points to our decision in David v. Sirius Computer
Solutions, Inc., 779 F.3d 1209 (10th Cir. 2015), which considered whether
damages flowing from a negligent misrepresentation fell under § 13-21-101(1).
We found the statutory term “personal injury” means “ any invasion of a personal
right,” id. at 1210 (alteration omitted) (quoting Black’s Law Dictionary 802 (8th
ed. 2004)). We went on to conclude “a tort which is not an injury to property is
treated, by definition, as an injury to the person.” Id. (cleaned up). Finally, we
found that, although the Colorado Supreme Court had not “squarely addressed the
issue,” the personal injury statute could apply “to both economic and
noneconomic damages when all the damages stemmed from a personal injury.”
Id. at 1211 (citing Morris v. Goodwin, 185 P.3d 777 (Colo. 2008)).
But Romero’s reliance on David is misplaced. Our first duty is to apply the
substantive law of the state as articulated by its highest court. See Stickley, 505
F.3d at 1077. The Colorado Supreme Court’s decision in Parker directs us to
focus on the nature of the damages sought by Romero. He sought as damages the
-17- wages he would have earned from H&P and described his damages as economic
losses from lost wages resulting from his improper termination. 4 These damages
are focused on monetary injury—the loss of something to which Romero was
otherwise entitled—not the invasion of a personal right. The district court also
correctly observed that the tort of wrongful termination in violation of public
policy vindicates a public interest, not a personal impairment. Thus, Romero’s
damages fall within the comprehensive scheme established by the wrongful
withholding statute.
Indeed, David supports our interpretation. There, the court addressed
negligent misrepresentation, a tort that caused the plaintiff reputational harm and
led to diminished earning capacity and lost business prospects. See David, 799
F.3d at 1210. Negligent misrepresentation under those circumstances causes
damages that are deeply personal, even if they are quantified in economic terms.
Thus, the personal injury statute can, in some circumstances, apply to economic
4 As the district court correctly concluded, Romero is entitled to prejudgment interest only on the loss of past income. An at-will employee has no property interest in future wages, therefore such wages cannot be considered “something to which [the plaintiff] was otherwise entitled.” Colorado courts have uniformly held that under the wrongful withholding statute, “interest may not be awarded on lost future wages and benefits.” Shannon v. Colo. Sch. of Mines, 847 P.2d 210, 213 (Colo. App. 1992); see also Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1207 (Colo App. 2009) (citing Shannon with approval); Life Care Ctrs. of Am., Inc. v. E. Hampden Assocs. Ltd. P’ship, 903 P.2d 1180, 1189 (Colo. App. 1995) (same).
-18- damages under the Parker test. By contrast, Romero’s damages do not remedy
the invasion of a personal right; instead, they remedy a monetary injury stemming
from the violation of a public-policy rule. Under David’s reasoning and the
Parker test, the wrongful withholding statute applies.
We therefore conclude the district court correctly applied the wrongful
withholding statute to the calculation of Romero’s prejudgment interest.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court
on all issues presented.
ENTERED FOR THE COURT
Timothy M. Tymkovich Chief Judge
-19-