Macias v. Southwest Cheese Co.

624 F. App'x 628
Court of Appeals for the Ninth Circuit·Decided August 24, 2015·No. Nos. 14-2109, 14-2154·Published·Cited by 14 cases

Opinion

ORDER AND JUDGMENT *

SCOTT M. MATHESON, JR. Circuit Judge.

Yvonne Macias appeals the district court’s grant of summary judgment to Southwest Cheese Company, LLC (SWC) on her claims alleging a hostile work environment, quid pro quo sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) and the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to -14 (NMHRA). On cross-appeal, SWC challenges the district court’s denial of supplemental jurisdiction over other state-law claims and its order declining to alter or amend that judgment. See Fed. R. Civ. P. 59(e). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse summary judgment on the hostile work environment claim, vacate the denial of supplemental jurisdiction, and .affirm in all other respects'.

I. BACKGROUND

A Factual Background

The summary judgment record, construed in the light most favorable to Ms. [631] Macias as the non-moving party, see Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002), establishes that she worked for SWC between February 2009 and February 2011. Shortly after she started, in June 2009, a male employee named Cody Stewart exposed himself to Ms. Macias and Margarita Holguin while at work. Ms. Macias reported the incident to a shift supervisor but did not know if anything was done with her complaint. Ms. Holguin also reported the incident and was fired the following week.1 After the incident, Ms. Macias became fearful of Mr. Stewart. She noticed he would go upstairs and “sexually leer” at her. Aplt. App. at 51. In 2008, Mr. Stewart had photographed his genitals at an off-site SWC social function with co-workers and then passed the picture around to several SWC managers, including the director of human resources. Id. at 56. Additionally, Ms. Macias learned that in October 2010, Mr. Stewart had twice exposed himself to another woman, Lorena Chavez-Acosta.2

By January 2011, Ms. Macias, who had requested to be moved to a different shift, was working days instead of nights. Between January and February of that year, she claims that a day-shift supervisor, Jose Borjas, became obsessive toward her. She recalled an incident in which Mr. Borjas asked her in a flirtatious manner, “why are you so quiet,” to which Ms. Macias replied, “well, I’m always busy,” and then ignored him. Id. at 51 (internal quotation marks omitted). Things changed after that, with Mr. Borjas repeatedly calling her into his office.3 Other employees would laugh when Mr. Borjas called her, and Ms. Macias felt uncomfortable because he would stand close to her and stare at her in a “sexually provocative manner.” Aplt. App. at 51. Ms. Macias said he became angry and made her job miserable because she refused to reciprocate his flirtations. She never complained to management, though, other than to ask to be moved to another shift because she was tired of him. Aplee. App. at 349-55.

Eventually, on February 8, 2011, Ms. Macias was fired after accruing twelve disciplinary actions. According to the human resources director, Ms. Macias had “consistent performance failures and attendance problems” that ultimately resulted in her termination. Id. at 155.

B. Procedural Background

Several months later, Ms. Macias filed this action in state court, raising claims under Title VII and the NMHRA for a hostile work environment and quid pro quo sexual harassment, as well as retaliation under the NMHRA. She also alleged state-law claims for breach of contract, intentional infliction of emotional distress (IIED), and negligent supervision. SWC [632] removed the case to federal court and moved for summary judgment.4 In opposing summary judgment, Ms. Macias submitted several affidavits, portions of which the district court excluded. - The court then granted summary judgment to SWC on the hostile work environment, sexual harassment, and retaliation claims. The court declined, however, to exercise supplemental jurisdiction over the state-law claims and instead remanded those claims to state court. SWC moved under Rule 59(e) to alter or amend that ruling, but the district court denied SWC’s request. This appeal followed.

II. DISCUSSION

In appeal number 14-2109, Ms. Macias challenges the exclusion of portions of affidavits that she submitted in opposition to SWC’s summary judgment motion. She also contests the grant of summary judgment on her claims alleging a hostile work environment, quid pro quo sexual harassment, and retaliation. In appeal number 14-2154, SWC cross-appeals the district court’s refusal to exercise supplemental jurisdiction over the state-law claims and its denial of the Rule 59(e) motion.

A. Affidavits

Ms. Macias first challenges the district court’s exclusion of fifteen statements and paragraphs contained in five different affidavits that she submitted with her summary judgment response. “[W]e review a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Mithael v. Intracorp, Inc., 179 F.3d 847, 854 (10th Cir. 1999). The district court struck portions of affidavits from Ms. Macias, Sarah Stewart (Mr. Stewart’s ex-wife), and former coworkers Lorena Chavez-Acosta, Rebecca Martinez,5 and Misty English. In each instance, the court determined these affidavits contained statements that either attempted to create sham fact issues, see Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (“[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.”), were predicated on inadmissible hearsay, see Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201-02 (10th Cir.2015) (holding that inadmissible hearsay statements cannot support a plaintiffs opposition to summary judgment), or were made without personal knowledge, see Argo v. Blue Cross & Blue Shield, of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir.2006) (“Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.” (internal quotation marks omitted)).

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Macias v. Southwest Cheese Co., 624 F. App'x 628 (9th Cir. 2015).

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