Lorena CHAVEZ-ACOSTA, Plaintiff-Appellant, v. SOUTHWEST CHEESE COMPANY, LLC, Defendant-Appellee.
No. 13-2227.
United States Court of Appeals, Tenth Circuit.
April 20, 2015.
610 F. App‘x 722
We agree with the district court that Darnell failed to exhaust her administrative remedies. ODOC has adopted a multi-step process through which an incarcerated individual may seek formal review of complaints relating to conditions of confinement. As part of this process, an incarcerated individual seeking to appeal a decision pertaining to a medical grievance must submit the appeal to the CMO through the U.S. Postal Service. Because Darnell failed to mail her appeal to the CMO, that appeal was returned to her unanswered but accompanied by a form that explained why the appeal was being returned and provided her with the proper address for the CMO. She never mailed her appeal to the proper address.
Darnell contends that prison officials prevented her from exhausting required administrative remedies. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner‘s efforts to avail h[er]self of an administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the prisoner‘s failure to exhaust.“). Specifically, Darnell contends that after her appeal was returned, she submitted a formal request to staff asking a prison official to fax her document to the CMO. This argument is unavailing. Darnell does not contend that she was prohibited from mailing her appeal to the CMO though threats or intimidation. See Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir.2011). It is undisputed that Darnell did not resubmit her appeal to the CMO pursuant to the ODOC process that directs such appeals to be “submitted in a separate envelope and mailed through the U.S. Postal Service.”
Because Darnell failed to exhaust her administrative remedies as required by the PLRA, we do not reach the merits of her claims.
III
The decision of the district court is AFFIRMED. Darnell‘s motion to proceed in forma pauperis is GRANTED. We remind Darnell that she remains obligated to continue making partial payments until the entire filing fee has been paid.
Danny Scot Ashby, Justin Roel Capa, Jaime Ramon, K & L Gates, Dallas, TX, Jack N. Hardwick, Kurt A. Sommer, Sommer, Udall, Sutin, Hardwick & Hyatt, PA, Santa Fe, NM, for Defendant-Appellee.
Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.*
ORDER AND JUDGMENT **
GREGORY A. PHILLIPS, Circuit Judge.
Plaintiff Lorena Chavez-Acosta was an employee of Defendant Southwest Cheese Company, LLC (“SWC“) from August 2010 until July 2011, when she resigned. Chavez-Acosta contends that her resignation was compelled by repeated acts of sexual harassment by fellow employees Chance Senkevich and Cody Stewart that made her work environment intolerable. Chavez-Acosta eventually sued SWC in New Mexico state court, asserting claims of: (1) a hostile work environment due to sexual harassment and retaliation in violation of Title VII and of the New Mexico Human Rights Act; (2) a violation of
Chavez-Acosta raises five issues on appeal. First, she appeals the district court‘s order striking portions of the affidavits she submitted in response to SWC‘s
Exercising jurisdiction under
I. Factual Background2
A. Workplace Incidents
Chavez-Acosta began working for SWC on August 12, 2010, as a Level I employee (hourly cheese production employee). SWC‘s employment handbook, which SWC gave to Chavez-Acosta, states that all employees are at-will. The handbook also states that the only way to alter this status is for a change to be agreed to “in writing and signed by both the employee and the CEO.” Even so, Chavez-Acosta contends that it was well understood at SWC that all employees begin employment with a 90-day probationary period, after which employees can only be terminated for good cause.
While she was working at SWC, Chavez-Acosta alleges she was sexually assaulted by fellow employee Cody Stewart.3 Specifically, Chavez-Acosta asserts that at work one night in October 2010, Stewart repeatedly exposed his genitals to her. Stewart allegedly told Chavez-Acosta that he was doing so because he was having problems with his wife and wanted to get back at her for cheating on him. Chavez-Acosta also asserts that Stewart told her
Chavez-Acosta contends that Stewart had a habit of exposing his genitals in workplace environments—principally to female coworkers—and that his predilection was well known at SWC. Specifically, Chavez-Acosta asserts that Stewart had previously exposed himself to both Margarita Holguin and Yvonne Macias, fellow SWC employees. She also contends that Stewart asked fellow employee Misty English “do you want to see my dick?” while at work. But the record is devoid of evidence suggesting that anyone reported these instances to SWC management.
Chavez-Acosta also points us to two additional incidents demonstrating Stewart‘s penchant for genital exposure which, while not involving female co-workers, are meant to highlight that SWC should have been aware of his issue. First, in November 2008 Stewart used a coworker‘s phone to take a picture of his exposed genitals at an SWC going-away party. Although many members of upper management saw this picture, Stewart was not reprimanded. Second, in September 2012—after Chavez-Acosta had left SWC—Human Resources reprimanded Stewart for sending a picture of uncovered genitals to a male coworker.
B. Procedural History
On July 18, 2011, Chavez-Acosta resigned from SWC. Before resigning, she filed a charge of discrimination with the New Mexico Department of Workforce Solutions: Human Rights Bureau (“Human Rights Bureau“). In her filing before the Human Rights Bureau, Chavez-Acosta detailed her alleged harassment based on Senkevich‘s and Stewart‘s conduct. She asserted claims for a hostile work environment arising from sexual harassment, retaliation, and a violation of
After reviewing the facts of Chavez-Acosta‘s complaint, the Human Rights Bureau issued an Order of Non-Determination. Chavez-Acosta appealed this ruling in New Mexico state court. SWC then removed the case to federal district court and moved to dismiss Chavez-Acosta‘s complaint. In district court, Chavez-Acosta amended her complaint to include claims for breach of contract, intentional infliction of emotional distress, and negligent supervision. The district court granted SWC‘s motion to dismiss the
The claim based on Senkevich‘s conduct proceeded to trial. The first trial resulted in a hung jury, but a second trial resulted in a jury verdict for SWC. Following the court‘s entry of judgment on the jury‘s verdict, Chavez-Acosta timely appealed from the court‘s grant of summary judgment and from an order striking portions of the affidavits she provided in response to SWC‘s summary judgment motion.
II. Discussion
A. Affidavit Portions
Before we consider Chavez-Acosta‘s appeal from the district court‘s grant of
The admissibility of an affidavit submitted on summary judgment is an evidentiary ruling that we review for an abuse of discretion. Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir.1997) (“We cannot say that the district court abused its discretion in finding [the] affidavit a sham and excluding it. We therefore affirm its grant of summary judgment on this count.“). Regarding the trial court‘s alleged error in granting the defendant‘s motion to strike the affidavits, Chavez-Acosta‘s argument here is premised on the fact that some courts have held that in this context a trial court ordinarily should not strike affidavits, but should instead “simply disregard[] those portions which are not shown to be based upon personal knowledge or otherwise do not comply with
We do not believe that the district court abused its discretion in refusing to credit the affidavit statements at issue here. The record shows that neither Chavez-Acosta nor Macias had a basis in personal knowledge for the statements made in their affidavits. See Garrett, 305 F.3d at 1213 (recognizing that information presented in the nonmovant‘s affidavit must be “based on personal knowledge and [must set] forth facts that would be admissible in evidence” (quoting Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995))). Chavez-Acosta maintains that she has personal knowledge regarding her assertion; however, her purported personal knowledge is essentially just a conclusory statement reiterating that Stewart had exposed himself to both her and Macias. She argues that her personal knowledge of these incidents is sufficient to support her assertion that Stewart‘s propensity for genital exposure was well known at SWC. We disagree, and we therefore affirm the district court on this issue. Because Chavez-Acosta does not appear to us to provide any reason why the district court‘s determination regarding Macias‘s affidavit was incorrect—beyond the conclusory assertion that Macias‘s statement was “based on personal knowledge and admissible in a summary judgment proceeding“—we also affirm as to this determination.
Concerning the alleged error in granting a motion to strike portions of the affidavits, we do not believe that the trial court‘s decision here amounted to an abuse of discretion. The trial court was correct to disregard the statements at issue because they were not based on personal knowledge. Even if—as Chavez-Acosta appears to contend—granting a motion to
In sum, we do not believe the district court abused its discretion by barring the statements contained in the affidavits of Chavez-Acosta and Macias for lack of personal knowledge. We therefore affirm the district court as to its determinations regarding the statements contained in these affidavits.
B. Constructive Discharge
Concerning the district court‘s summary judgment determinations, we first consider Chavez-Acosta‘s appeal regarding her constructive discharge claim. Before we can reach the merits of this claim, however, we must address jurisdiction. Under both Title VII and the New Mexico Human Rights Act, exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996) (Title VII); Luboyeski v. Hill, 117 N.M. 380, 872 P.2d 353, 355-56 (1994) (Human Rights Act). A plaintiff must timely file an administrative charge to preserve any claim based on a discrete discriminatory act. Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 (2002).
Chavez-Acosta neither filed a claim of constructive discharge with the Human Rights Bureau nor amended her initial complaint with the Human Rights Bureau to include a claim of constructive discharge. Nonetheless, she asserts that this failure does not strip us of jurisdiction. Instead, she characterizes her claim as “a constructive discharge claim premised on a hostile work environment.” In this refashioning, she bases her claim on a series of discriminatory events and not any “single discrete act.” Chavez-Acosta believes this distinction permits us to exercise jurisdiction. In addition, she notes that SWC never raised the jurisdictional arguments below, and thus she contends that it has waived this argument.
We find both of Chavez-Acosta‘s arguments unavailing. First, as to SWC‘s failure to raise the argument below, this failure does not bar our consideration of our own jurisdiction. Indeed, the Supreme Court has counseled that “[s]ubject-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). And second, Chavez-Acosta‘s reformulation of her argument does nothing to rescue her failure either to lodge a complaint with the Human Rights Bureau alleging constructive discharge or to amend her initial complaint before the Human Rights Bureau to include a claim of constructive discharge. We have previously concluded, in circumstances similar to those presented here, that “a claim of constructive discharge requires filing an administrative charge.” Chapman v. Carmike Cinemas, 307 Fed.Appx. 164, 174 (10th Cir.2009) (unpublished). Chavez-Acosta‘s failure to file such a charge or to amend her previously filed complaint to include a constructive discharge claim renders us unable to reach the merits of her constructive discharge argument. We therefore dismiss her constructive discharge claim for a lack of jurisdiction.
C. Hostile Work Environment 4
Chavez-Acosta next contests the district court‘s grant of summary judgment re-garding her claims of a hostile work envi-ronment based on Stewart‘s conduct. We review the district court‘s grant of sum-mary judgment de novo. Manard v. Fort Howard Corp., 47 F.3d 1067, 1067 (10th Cir.1995). “Summary judgment is appro-priate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). In order to prevail on a hostile work environment claim, Cha-vez-Acosta must demonstrate that she was discriminated against because of her gen-der and that this discrimination created an abusive environment that was severe enough to alter the conditions of her em-ployment. See Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir.2012). To determine whether the harassment was sufficiently severe, we consider “the fre-quency of the conduct; its severity; whether it is physically threatening or hu-miliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir.2007) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). SWC could be liable for Stewart‘s sexual harass-ment under two theories: (1) vicarious lia-bility; or (2) negligence. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (vicarious liability); Hirschfeld v. N.M. Corr. Dep‘t, 916 F.2d 572, 577 (10th Cir. 1990) (negligence). Generally, the vicari-ous liability theory applies only when the harasser is a supervisor, while the negli-gence theory applies when the harasser is a co-worker. See Kramer v. Wasatch Cnty. Sheriff‘s Office, 743 F.3d 726, 755 (10th Cir.2014). As Chavez-Acosta as-serts that SWC could be liable under ei-ther theory, we consider both in turn.5
i. Vicarious Liability
Regarding vicarious liability, the Su-preme Court has previously held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervi-sor with immediate (or successively high-er) authority over the employee.” Bur-lington Indus., Inc., 524 U.S. at 764-65. Recently, the Court re-vised the definition of a supervisor for the purposes of Title VII, holding that:
an employer may be vicariously liable for an employee‘s unlawful harassment only when the employer has empowered that employee to take tangible employ-ment actions against the victim, i.e., to effect a “significant change in employ-ment status, such as hiring, firing, fail-ing to promote, reassignment with sig-nificantly different responsibilities, or a decision causing a significant change in benefits.”
Vance v. Ball State Univ., 570 U.S. 421, 431 (2013)
SWC contends that Stewart was not a supervisor under Vance. At the time of his alleged conduct, Stewart was an Assistant Team Leader in the Cheese Department. SWC asserts that this did not give him the authority to cause any “significant change” in Chavez-Acosta‘s employment. Based on Vance, therefore, SWC argues that Stewart was not a supervisor and so it cannot be held liable for his alleged conduct under a vicarious liability theory.
Chavez-Acosta denies this assertion. She contends Vance does not rescue SWC because material issues of fact remain in dispute regarding Stewart‘s supervisory status. Further, she asserts that the district court found that Stewart was a supervisor, and that SWC waived argument on this point by failing to contest Chavez-Acosta‘s additional material issues of fact.
Chavez-Acosta is correct that, based on the pre-Vance definition of a supervisor for Title VII purposes, the district court found that Stewart qualified as a supervisor. It also appears from the record that SWC did not contest this characterization. But, contrary to Chavez-Acosta‘s assertions, there are two reasons why we can consider this argument. First, it would seem unfair to require SWC to formulate arguments by divining the outcome of future Supreme Court decisions. And second, we have repeatedly iterated that “we may affirm on any basis supported by the record, even if it requires ruling on arguments not reached by the district court or even presented to us on appeal.” E.g., Jordan v. U.S. Dep‘t of Justice, 668 F.3d 1188, 1200 (10th Cir.2011).
With those preliminary considerations disposed of, we hold that Stewart was not a supervisor under Vance. While the district court found that Stewart was a part of the “supervisory hierarchy at SWC,” this is not enough. At the time of the contested incidents, Stewart was an Assistant Team Leader in the Cheese Department. His duties did not give him the authority to take any “tangible employment actions” against Chavez-Acosta. Instead, that authority resided with SWC‘s Production Managers and Human Resources Director. Whatever Chavez-Acosta‘s assertions about Stewart‘s “de facto supervisory status,” Vance tells us that his position did not amount to that of a “supervisor” for Title VII purposes. Given Stewart‘s status, SWC cannot be held vicariously liable for his alleged harassment of Chavez-Acosta.
ii. Negligence
To prevail on a negligence theory, Chavez-Acosta must demonstrate that SWC “had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the harassment.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir.1998) (quoting
Chavez-Acosta stresses that she has presented enough evidence to make SWC‘s knowledge a disputed issue of material fact. She asserts SWC knew or should have known about Stewart‘s conduct for three reasons, the first going to actual knowledge and the second two to constructive knowledge. First, Chavez-Acosta appears to contend that Stewart‘s knowledge of his own conduct should be imputed to SWC since he was a management-level employee. Second, Chavez-Acosta highlights that management-level employees knew that Stewart had taken a cell-phone picture of his genitals at a company party in 2008 and that many management-level employees at the party had even seen the picture. And finally, Chavez-Acosta claims that at least one other employee complained to management about Stewart‘s conduct. She believes that, when combined, these incidents sufficiently show that SWC either knew, or should have known, about Stewart‘s conduct.
SWC rebuts these assertions. It contends that Stewart‘s knowledge of his own conduct, as an Assistant Team Leader, cannot possibly be enough to impute actual knowledge to SWC. Regarding actual knowledge, it also highlights that, prior to her filing with the Human Rights Bureau, Chavez-Acosta never reported Stewart‘s conduct. Concerning constructive knowledge, SWC asserts that Stewart‘s actions at a party nearly two years before his alleged harassment of Chavez-Acosta are insufficient to show that SWC had constructive knowledge of his harassment of Chavez-Acosta. SWC also contends that—contrary to Chavez-Acosta‘s assertion—there was no evidence on the record that any other employee had complained about Stewart engaging in similar conduct.
SWC is correct on all counts. First, concerning SWC‘s actual knowledge, Chavez-Acosta has never indicated that she reported Stewart‘s conduct to the appropriate authorities. And to the extent Stewart was a supervisor rather than Chavez-Acosta‘s coworker, SWC would be liable under the vicarious liability theory discussed above and not the negligence theory at issue here. See Kramer, 743 F.3d at 755. Chavez-Acosta has created no dispute of fact regarding whether SWC had actual knowledge of Stewart‘s conduct.
Chavez-Acosta has also failed to create a dispute of fact regarding SWC‘s constructive knowledge. Despite her assertion that Stewart repeatedly exposed himself to a host of people, we see no evidence
We therefore conclude that Chavez-Acosta has not shown that SWC could be liable for Stewart‘s conduct under either a vicarious liability theory or a negligence theory.
D. Negligent Hiring and Supervision
Chavez-Acosta offers negligent supervision as another theory under which SWC could be liable for Stewart‘s conduct. Under New Mexico law, this claim would require “evidence that the employee was unfit, considering the nature of the employment and the risk he posed to those with whom he would foreseeably associate, and that the employer knew or should have known the employee was unfit.” Valdez v. Warner, 106 N.M. 305, 742 P.2d 517, 519 (N.M.Ct.App.1987) (internal citation omitted). To survive summary judgment on a negligent hiring, retention, or supervision claim in New Mexico, an employee need only prove that the employer knew or reasonably should have known that an employee might cause some harm. EEOC v. Univ. of Phoenix, Inc., 505 F.Supp.2d 1045, 1063 (D.N.M.2007).
The considerations that enter into this claim, then, are the same as those discussed above regarding SWC‘s actual or constructive knowledge of Stewart‘s harassment. And the evidence, or lack thereof, is the same. Chavez-Acosta contends SWC was negligent for retaining Stewart, but the only evidence she offers to buttress this claim is SWC‘s knowledge of Stewart‘s actions at the party in 2008. Just as it was insufficient to support her hostile work environment claim, so too is this evidence not enough to overcome summary judgment on the issue of negligent hiring.
E. Breach of Contract 6
Chavez-Acosta‘s final claim is that her constructive discharge from SWC constituted a breach of contract. Despite the language in SWC‘s employee handbook regarding the at-will nature of the employment, Chavez-Acosta claims there was an implied contract that, after 90 days, an employee at SWC would be fired for good cause only. She highlights that the existence of an implied contract is usually a question of fact for a jury, and she believes that she has presented enough evidence that this question should survive summary judgment and reach a jury.
SWC counters in two ways. First, it contends that Chavez-Acosta resigned her position and has failed to create a fact issue on her constructive discharge claim.
We believe that SWC could succeed under either theory. We need not concern ourselves with its argument regarding the factual basis underlying Chavez-Acosta‘s constructive discharge argument, however, because this is ultimately irrelevant to our determination. Even if we were to find that Chavez-Acosta could overcome summary judgment on this issue, the fact remains that her employment contract, the SWC handbook, and every written communication on the record between her and SWC confirms that she was an at-will employee. In fact, SWC‘s handbook explicitly states that the only way for this status to be altered is through an agreement “in writing and signed by both the employee and the CEO.”
Chavez-Acosta does not claim that a written agreement modifying the terms of her employment and conforming to the SWC handbook‘s requirements exists. Instead, she asserts that SWC‘s words and actions created an implied contract that she would be dismissed only for good cause. She correctly notes that, under New Mexico law, the existence of an implied contract is a question of fact, and thus summary judgment is appropriate only if the evidence is insufficient to create a genuine issue of material fact regarding whether an implied contract was established. See, e.g., Sullivan v. Am. Online, Inc., 219 Fed.Appx. 720, 721-22 (10th Cir. 2007) (unpublished) (citing
Even assuming that the words and actions of her supervisors informed Chavez-Acosta that her employment status had been modified, this would still be insufficient to overcome summary judgment. In New Mexico, “an implied contract is created only where an employer creates a reasonable expectation” of continued employment. Hartbarger v. Frank Paxton Co., 115 N.M. 665, 857 P.2d 776, 783 (1993). We have previously found under New Mexico law that “repeated unequivocal written declarations of [an individual‘s] at-will status,” particularly when these declarations include one that “explicitly preclude[s] oral modifications,” are more than enough to make unreasonable a plaintiff‘s belief that her supervisor‘s statements and actions modified the at-will nature of her contract. Sullivan, 219 Fed. Appx. at 722. That is precisely the situation here. Given the repeated written acknowledgments of her at-will status and the company policy prohibiting oral modification of that status, we find unreasonable any belief Chavez-Acosta may have harbored that her status as an at-will employee had morphed into something different.
We therefore affirm the district court‘s grant of summary judgment as to Chavez-Acosta‘s breach of contract claims.
III. Conclusion
For the reasons stated above, we DISMISS Chavez-Acosta‘s constructive discharge claim for lack of jurisdiction and AFFIRM the district court as to all other issues raised in this appeal.
GREGORY A. PHILLIPS
UNITED STATES CIRCUIT JUDGE