This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 MIREYA GARCIA, 2 Plaintiff-Appellant, 3 v. No. 32,244 4 BOARD OF REGENTS OF NEW 5 MEXICO STATE UNIVERSITY, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Douglas R. Driggers, District Judge 9 John R. Hakanson, P.C. 10 Miguel Garcia 11 Alamogordo, NM 12 for Appellant 13 Miller Stratvert P.A. 14 Lawrence R. White 15 Cody R. Rogers 16 Las Cruces, NM 17 for Appellee 18 MEMORANDUM OPINION 19 SUTIN, Judge. 202 {1} Mireya Garcia (Appellant) appeals from the district court’s order granting 1 summary judgment in favor of the Board of Regents of New Mexi co State University 2 (Appellee). This Court’s second notice proposedto reverse the district court’s order 3 granting summary judgment on Appellant ’s hostile work environment sexual 4 harassment claim. Appellee filed a memorandum opposing reversal, arguing that 5 Appellant failed to establish a genuine issue of material fact concerning two of the 6 elements of a hostile work environment se xual harassment claim: that the harassment 7 occurred because of Appellant’s sex and that Appellee knew, or should have known, 8 of the harassment and failed to take remedial action. See Nava v. City of Santa Fe , 9 2004-NMSC-039, ¶ 6, 136 N.M. 647, 103 P.3d 571 (providing the elements for a 10 sexual harassment claim). [MIO 3] We are not persuaded by Appellee’s arguments 11 and reverse the district court’s order granting summary judgment on Appellant’s 12 hostile work environment sexual harassment claim. 13 {2} Appellee argues that Appellant has not demonstrated that the alleged 14 harassment was based on her sex. In particular, Appellee asserts the evidence 15 suggests that the alleged harassing conduct was not based on her sex and that male co16 workers were subject to the same type of conduct Appellant co mplains of. [MIO 4] 17 Appellant argued below that her supervisor’s almost daily comments concerning her 18 sexual orientation created a hostile work environment. [RP 13-14] There was 193 evidence that Appellant was a member of two protected classes given her gender and 1 her sexual orientation. [RP 12 (¶ 6), 111] Appellant testified that her supervisor, 2 Eddie Padilla, made comments about pornography and her sexuality [RP 110-12] 3 about three to four times a week [RP 104 (p. 46)] that were stressful [RP 114:786-88] 4 and that continued until the time she was terminated six months later. [RP 116:481- 5 83] The fact that male co-workers werepresent when comments were directed at 6 Appellant’s sexuality does not ne gate the harassing, intimidating, hostile nature of the 7 behavior as it concerns Appellant and her job performance. Ocana v. Am. Furniture 8 Co. , 2004-NMSC-018, ¶ 23, 135 N.M. 539, 91 P.3d 58 (“Hostile work environment 9 occurs when the offensive conduct has the purpose or effect of unreasonably 10 interfering with an individual’s work perfo rmance or creating an intimidating, hostile, 11 or offensive working environment.” (internal quotation marks and citation omitted)). 12 We therefore conclude that this evidence was sufficient to raise a question of fact 13 concerning whether the harassment occurred because of Appellant’s sex. 14 {3} Appellee also argues that Appellant did not notify her employer of the alleged 15 harassment until after she was terminatedand filed her complaint on May 7, 2008. 16 [MIO 5] Appellee contends that Appe llant never reported the alleged sexual 17 harassment to Lucio Garcia because she knowingly decided to wait until her 18 probationary period was over before risking her job security by filing a grievance. 194 [Id.] However, there was evidence that a co-worker, Sergio Flores, talked to Mr. 1 Garcia about the sexual hara ssment and the hostile work environment that Mr. Padilla 2 created. [RP 115:846-52] And there was alsoevidence that Appellant told Mr. Garcia 3 “confidentially, what went on” and that sh e “voic[ed her] concerns about how [Mr. 4 Padilla] talk[ed] about [her.]” [RP 113:741-46] This testimony, although vague, 5 tends to support an inference that Appellant had, in fact, discussed the sexual 6 harassing behaviors with Mr. Garcia. We hol d that this evidence raised a question of 7 fact as to whether Appellee knew or should have known about the harassment. See 8 Weaver v. N.M. Human Servs. Dep’t , 1997-NMSC-039, ¶ 11, 123 N.M. 705, 945 P.2d 9 70 (“Making all inferences in favor of the non-movant, we interpret the material facts 10 in favor of requiring a trial on the merits.”). 11 {4} Insofar as Appellee argues that it wa s entitled to summary judgment on the 12 Faragher v. City of Boca Raton , 524 U.S. 775 (1998), affirmative defense, this 13 Court’s second notice proposed to conclude th at Appellee failed to make a prima facie 14 case of entitlement to summary judgment based on the Faragher defense. The 15 Faragher defense is a defense to the presumption of vicarious liability of the 16 employer. The presumption can be rebutted by showing that “(1) the employer 17 exercised reasonable care to prevent and correct promptly any sexual harassing 18 behavior; and (2) that the employee unreasonably failed to take advantage of any 195 preventive or corrective opportunities provided by the employer or to avoid harm 1 otherwise.” Ocana , 2004-NMSC-018, ¶ 26. 2 {5} Appellee argues that it was entitled tosummary judgment because after 3 Appellant reported the sexual harassment, it promptly investigated the incident, which 4 resulted in the termination of Mr. Garcia, and because by delaying the reporting of the 5 alleged harassment, Appellant failed to takeadvantage of any corrective or 6 preventative opportunities. [MIO 9] A lthough Appellee argued that the personnel 7 manual outlining Appellee’s se xual harassment policies wa s available online [RP 90 8 (¶ 11)], Appellee asserted no evidence to de monstrate that Appellant was made aware 9 of the sexual harassment polic y and grievance process. We therefore conclude that 10 Appellee did not make a prima facie case that it was entitled to summary judgment. 11 See Brown v. Taylor , 120 N.M. 302, 305, 901 P.2d 720, 723 (1995) (“The burden is 12 on the moving party to show an absence of a genuine issue of fact[] and that it was 13 entitled as a matter of law to judgment in its favor.”). Appellant will have the burden 14 of establishing employer liability below, whether by the legal presumption or 15 otherwise. 16 {6} For these reasons and those stated in this Court’s first and second calendar 17 notices, we conclude that Appe llant raised a genuine issue of material fact for the jury 18 on her hostile work environment sexual harassment claim. See Woodhull v. Meinel , 196 2009-NMCA-015, ¶ 7, 145 N.M . 533, 202 P.3d 126 (“We are mindful that summary 1 judgment is a drastic remedial tool whic h demands the exercise of caution in its 2 application, and we review the record in the light most favorable to support a trial on 3 the merits.” (internal quotation marks and c itation omitted)). We therefore affirm the 4 district court’s order granting summary judgment on Appellant’s discrimination claim 5 and reverse summary judgment on Appellant’s sexual harassment claim. 6 {7} IT IS SO ORDERED. 7

__________________________________ 8 JONATHAN B. SUTIN, Judge 9

WE CONCUR: 10

_______________________________ 11 MICHAEL E. VIGIL, Judge 12

_______________________________ 13 TIMOTHY L. GARCIA, Judge 14