Chavez-Acosta v. Sw. Cheese Co., 13-2227
| Decision Date | 20 April 2015 |
| Docket Number | No. 13-2227,13-2227 |
| Parties | LORENA CHAVEZ-ACOSTA, Plaintiff - Appellant, v. SOUTHWEST CHEESE COMPANY, LLC, Defendant - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.**
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 statecourt, 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 42 U.S.C. § 1981; (3) breach of contract; (4) negligent hiring and supervision; and (5) intentional infliction of emotional distress. The district court dismissed Chavez-Acosta's § 1981 and retaliation claims. The district court then granted SWC summary judgment on all claims except Chavez-Acosta's hostile work environment claim based on Senkevich's conduct. The latter claim proceeded to trial, eventually resulting in a verdict for SWC.
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 summary judgment motion. She also appeals the district court's grant of summary judgment on her claims regarding: (1) constructive discharge; (2) a hostile work environment due to Stewart's sexual harassment; (3) SWC's negligent hiring and supervision of Stewart; and (4) breach of contract.1
Exercising jurisdiction under 28 U.S.C. § 1291, we DISMISS Chavez-Acosta's constructive discharge claim for lack of jurisdiction and otherwise AFFIRM as to all issues raised in this appeal.
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. Specifically,3 Chavez-Acosta asserts that at work onenight 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 that if she reported him to Human Resources, she would lose her job because he was friends with Production Manager Eric Denton. Chavez-Acosta claims that as a result, she did not report Stewart's actions out of fear for her job.
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 leftSWC—Human Resources reprimanded Stewart for sending a picture of uncovered genitals to a male coworker.
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 42 U.S.C. § 1981. But because she had not yet resigned, Chavez-Acosta's filing did not allege constructive discharge. Nor did Chavez-Acosta ever amend this complaint to include a constructive discharge claim.
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 § 1981 and retaliation claims, but it allowed the remaining claims to proceed. SWC later moved for summary judgment on the remaining claims; the district court granted summary judgment on the claims for breach of contract, intentional infliction of emotional distress, negligent supervision, and a hostile work environment related toStewart's conduct. However, the district court denied summary judgment on the claim for a hostile work environment based on Senkevich's conduct.
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.
Before we consider Chavez-Acosta's appeal from the district court's grant of summary judgment, we first address her concerns regarding the district court's decision to strike portions of the affidavits she submitted before it considered summary judgment. Chavez-Acosta challenges two of the district court's determinations: (1) the decision to strike from her affidavit the statement that "it was well known [at SWC] that Stewart had a habit of exposing his genitals to female employees," which the district court struck because Chavez-Acosta "provide[d] no detail as to how she knew that 'it was well known' at SWC"; and (2) the decision to strike from Yvonne Macias's affidavit the statement that Stewart was "untouchable because he was part of the white male power structure at SWC and was protected," which the district court similarly struck because there was no indication that Macias had personal knowledge that Stewart was "untouchable." Chavez-Acosta contends that striking the affidavits in this manner was aninappropriate evidentiary ruling and that sufficient evidence supported both Macias's and her personal knowledge contained in their statements.
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) ( ). 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 Rule 56(e)." See, e.g., Sholl v. Plattform Adver., Inc., 438 F. Supp. 2d 1303, 1307 (D. Kan. 2006).
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 (). 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 arguesthat 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...
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