UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ LORENA CHAV EZ-ACOSTA, Plaintiff – Appellant, v. No. 13-2227 SOUTHWEST CHEESE COMPANY, LLC, Defendant – Appellee. (D.C. No. 2:12-CV-00353-JAP-CG) (D.N.M.)

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges. **

___________________ _________________ Plaintiff Lorena Chavez-Acosta was an employee of Defendant Southwest Cheese Company, LLC (“SWC”) from Au gust 2010 until July 2011, when she resigned. ChavezAcosta contends that her resignation was compelled by repeated acts of sexual harassment by fellow employees Chance Senke vich and Cody Stewart that made her work environment intolerable. Chavez-Acosta eventually su ed SWC in New Mexico state

* This order and judgment is not binding precedent, excep t under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellat e record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case therefore is ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### April 20, 2015
Elisabeth A. Shumaker Clerk of Court-2- court, asserting claims of: (1) a hostile wo rk environment due to sexual harassment and retaliation in violation of Title VII and of the New Me xico Human Rights Act; (2) a violation of 42 U.S.C. § 198 1; (3) breach of contrac t; (4) negligent hiring and supervision; and (5) intentio nal infliction of emotional distress. The district court dismissed Chavez-Acosta’s § 19 81 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 la tter claim proceeded to trial, eventually resulting in a verdict for SWC. Chavez-Acosta raises five issu es on appeal. First, she appeal s the district court’s order striking portions of the affidavits she subm itted in response to SW C’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 environm ent due to Stewart’s sexual harassment; (3) SWC’s negligent hiring and supervision of St ewart; and (4) breach of contract. 1

1 Chavez-Acosta’s filings are imprecise on exactly what issues she is appealing. Specifically, her two filings before this cour t are inconsistent on the separation of her constructive discharge and hostile work envi ronment claims. While her initial statement of the issues refers only to an appeal of th e district court’s grant of summary judgment regarding constructive discharg e, the body of the brief its elf appears to contest both issues. In her reply brief, however, Chavez-A costa seeks to combin e her hostile work environment and constructive discharge actions into one claim, a sserting that she is “advanc[ing] a compound claim, that is a constructive discharge claim premised on a hostile work environment.” Chavez-Acosta doe s this, no doubt, because she failed to amend her filing before the New Mexico Hu man Rights Bureau to include a claim of constructive discharge. As will be detailed belo w, her failure to do so deprives this court of jurisdiction to consider her constructiv e discharge claim. Chavez-Acosta appears to believe that arguing constr uctive discharge as a compo und claim with hostile work environment will somehow save this jurisdictional deficiency . It is not so. Whatever-3- Exercising jurisdiction under 28 U.S.C. § 1291, we DISMISS Chavez-Acosta’s constructive discharge claim for lack of ju risdiction and otherwise AFFIRM as to all issues raised in this appeal.

I. Factual Background 2
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 ar e 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 be gin employment with a 90-day probationary period, after which employees can onl y be terminated for good cause. While she was working at SW C, Chavez-Acosta alleges sh e was sexually assaulted by fellow employee Cody Stewart. 3 Specifically, Chavez-Acosta asserts that at work one

Chavez-Acosta’s assertions regarding a “com pound claim,” we consider her hostile work environment and constructive discharge clai ms separately to explain why we lack jurisdiction to entertain her cons tructive discharge argument here.

2 As this case is before us on an appeal of the district cour t’s grant of summary judgment, we state the facts in the light most favorable to Chavez-Acosta, the nonmoving party. See, e.g. , Garrett v. Hewlett-Packard Co. , 305 F.3d 1210, 1213 (10th Cir. 2002).

3 As noted above, Chavez-Acosta claims she was also sexually assaulted by fellow employee Chance Senkevich. Beca use her claims regarding Se nkevich proceeded to trial and a jury decided that Chav ez-Acosta could not prove th at Senkevich had sexually harassed her, the law of the case doctrine prev ents Chavez-Acosta fro m relitigating this-4- night in October 2010, Stewart repeatedly expos ed his genitals to her. Stewart allegedly told Chavez-Acosta that he wa s doing so because he was having problems with his wife and wanted to get back at her for cheati ng on him. Chavez-Acostaalso asserts that Stewart told her that if she reported him to Human Resources, she would lose her job because he was friends with Production Manage r Eric Denton. Chavez-Acosta claims that as a result, she did not report Stewar t’s actions out of fear for her job. Chavez-Acosta contends that Stewart ha d a habit of exposing his genitals in workplace environments—p rincipally to female cowork ers—and that his predilection was well known at SWC. Specifically, Chavez-Ac osta asserts that Stewart had previously exposed himself to both Margarita Holguin and Yvonne Macias, fe llow 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 ev idence 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 aw are 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 Se ptember 2012—after Chavez-Acosta had left

issue before us. See Zinna v. Congrove , 755 F.3d 1177, 1182 (1 0th Cir. 2014) (“Under the law of the case doctrine, ‘once a court de cides an issue, the same issue may not be relitigated in subsequent proceedi ngs in the same case.’” (quoting Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah , 114 F.3d 1513, 1520 (10t h Cir. 1997))). The facts detailed here thus concern only Stewart’s conduct.-5- SWC—Human Resources reprimanded Stewar t 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 Me xico Department of Workforce Solutions: Human Rights Bureau (“Human Rights Bureau ”). In her filing before the Human Rights Bureau, Chavez-Acosta detailed her allege d harassment based on Senkevich’s and Stewart’s conduct. She asserted claims fo r a hostile work environment arising from sexual harassment, retaliation, and a violatio n of 42 U.S.C. § 1981. But because she had not yet resigned, Chavez-Acosta ’s filing did not a llege constructive discharge. Nor did Chavez-Acosta ever amend this complaint to include a c onstructive discharge claim. After reviewing the facts of Chavez-Acost a’s complaint, the Human Rights Bureau issued an Order of Non-Determination. Ch avez-Acosta appealed this ruling in New Mexico state court. SWC then removed the ca se to federal district court and moved to dismiss Chavez-Acosta’s comp laint. In district court, Chavez-Acosta amended her complaint to include claims fo r breach of contract, inten tional infliction of emotional distress, and negligent superv ision. The district court gr anted SWC’s motion to dismiss the § 1981 and retaliation claims, but it allo wed the remaining claims to proceed. SWC later moved for summary judgment on the rema ining claims; the district court granted summary judgment on the clai ms for breach of contract, intentional infliction of emotional distress, negligent supervision, and a hostile work environment related to-6- Stewart’s conduct. However, the district cour t denied summary judgment on the claim for a hostile work environment ba sed 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 ju ry verdict for SWC. Following the court’s entry of judgment on the jury ’s verdict, Chavez-Acosta tim ely appealed from the court’s grant of summary judgment and from an orde r 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 appe al from the district court’s grant of summary judgment, we first address her concer ns regarding the district court’s decision to strike portions of the affidavits she su bmitted 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 genita ls to female employees,” whic h the district court struck because Chavez-Acosta “provi de[d] no detail as to how sh e knew that ‘it was well known’ at SWC”; and (2) the decision to st rike from Yvonne Macias’s affidavit the statement that Stewart was “untouchable beca use he was part of the white male power structure at SWC and was protected,” which th e district court similarly struck because there was no indication that Macias had personal knowledge that Stewart was “untouchable.” Chavez-Aco sta contends that striking the affidavits in this manner was an-7- inappropriate evidentiary ruling and that sufficient evidence supported both Macias’s and her personal knowledge contained in their statements. The admissibility of an affidavit submitte d 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] a ffidavit 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 so me courts have held that in this context a trial court ordinarily should not strike affi davits, but should instead “simply disregard[] those portions which are not shown to be based upon pers onal 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 abus ed its discretion in refusing to credit the affidavit statements at issue here. The re cord 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 (recogni zing that information pres ented in the nonmovant’s affidavit must be “based on personal knowledge and [must set] forth facts that would be admissible in ev idence” (quoting Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995))). Chavez-Acosta ma intains that she has persona l knowledge regarding her assertion; however, her purport ed personal knowledge is esse ntially just a conclusory statement reiterating that Stewart had exposed himself to both her and Macias. She argues-8- that her personal knowledge of these incidents is sufficient to support her assertion that Stewart’s propensity for genital exposure wa s well known at SWC. We disagree, and we therefore affirm the district court on this issue. Because Chavez-Ac osta does not appear to us to provide any reason why the district court’s dete rmination regarding Macias’s affidavit was incorrect—beyond the conclusory assertion th at Macias’s statement was “based on personal knowledge and admissibl e in a summary judgment proceeding”—we also affirm as to this determination. Concerning the alleged error in granting a mo tion 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 Ch avez-Acosta appears to contend—granting a motion to strike was an uncommon vehicle th rough which to disregard these statements, in substance the trial court’s actions affe cted the same result : the court correctly disregarded the statements at issue when ruling on summa ry judgment. This alleged “error” in no way prejudiced Chavez-Acost a and does not amount to an abuse of discretion. In sum, we do not believe the district court abused its discretion by barring the statements contained in the affidavits of Ch avez-Acosta and Macias for lack of personal knowledge. We therefore affirm the district court as to its determ inations regarding the statements contained in these affidavits.-9- B. Constructive Discharge Concerning the district court’s summary ju dgment determinations, we first consider Chavez-Acosta’s appeal regarding her construc tive discharge claim. Before we can reach the merits of this claim, however, we must address jurisdiction. U nder both Title VII and the New Mexico Human Rights Act, exha ustion 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 , 872 P.2d 353, 355–56 (N.M. 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 (2002). Chavez-Acosta neither filed a claim of cons tructive discharge with the Human Rights Bureau nor amended her initia l complaint with th e Human Rights Bur eau to include a claim of constructive discharge. Nonetheless, sh e 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 add ition, 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 una vailing. First, as to SWC’s failure to raise the argument below, this failure do es not bar our consideration of our own jurisdiction. Indeed, the Supreme Court has co unseled that “[s]ubject-matter jurisdiction-10- can never be waived or forfeited.” Gonzalez v. Thaler , 132 S. Ct. 641, 648 (2012). And second, Chavez-Acosta’s refo rmulation of her argument do es nothing to rescue her failure either to lodge a complaint with the Human Rights Bureau alleging constructive discharge or to amend her initial complaint be fore the Human Rights Bureau to include a claim of constructive discharge. We have previously conclude d, in circumstances similar to those presented here, that “a claim of constructive discharge requires filing an administrative charge.” Chapman v. Carmike Cinemas , 307 F. App’x 164, 174 (10th Cir. 2009) (unpublished). Chavez-Acosta’s failure to file such a char ge or to amend her previously filed complaint to include a constructive discharg e claim renders us unable to reach the merits of her constructive disc harge argument. We therefore dismiss her constructive discharge claim for a lack of jurisdiction.
C. Hostile Work Environment 4
Chavez-Acosta next contests the district co urt’s grant of summary judgment regarding her claims of a hostile work environment based on Stewart’ s conduct. We review the district court’s grant of summary judgment de novo. Manard v. Fort Howard Co. , 47 F.3d 1067, 1067 (10th Cir. 1995 ). “Summary judgment is appr opriate 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

4 The same legal and evidentiary standa rds undergird both T itle VII and the New Mexico Human Rights Act. See Rodriguez v. N.M. De pt. of Workforce Solutions , 278 P.3d 1047, 1050 (N.M. Ct. App. 2012) (“Owi ng to the similarities between the Human Rights Act and Title VII, our Supreme Court has noted that our analysis of claims under the Human Rights Act is guided by the fede ral courts' interpretation of unlawful discrimination under Title VII.” (citing Garcia-Montoya v. St ate Treasurer’s Office , 16 P.3d 1084 (N.M. 2001))). Therefore, we will consider these claims together.-11- to prevail on a hostile work environment claim, Chavez-Aco sta must demonstrate that she was discriminated against because of her gender and that this discrimination created an abusive environment that was severe enough to alter th e conditions of her employment. See Morris v. City of Colo. Springs , 666 F.3d 654, 663 (10th Cir. 2012). To determine whether the harassmen t was sufficiently severe, we consider “the frequency of the conduct; its severity ; whether it is physically threaten ing or humiliating, or a mere offensive utterance; and whether it unreasona bly 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 harassment under two theories: (1) vicarious liability; 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 vicarious liability theory app lies only when the hara sser is a supervisor, while the negligence th eory 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 asserts that SWC could be liable under eith er theory, we consid er both in turn. 5

5 Chavez-Acosta actually contends that th ere are three theories of liability under which SWC could be responsible for Stewar t’s actions: (1) negligence; (2) actual authority; and (3) apparent authority. As both actual authority and apparent authority are mere creatures of vicarious liability, we consid er them more appropriately here under the same theory.-12- i. Vicarious Liability Regarding vicarious liability, the Supreme Court has previously held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus., Inc. , 524 U.S. at 7 64–65. Recently, the Court revised 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 employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly diffe rent responsibilities, or a decision causing a significant change in benefits.” Vance v. Ball State Univ. , 133 S. Ct. 2434, 2 443 (2013) (quoting Burlington Indus., Inc. , 524 U.S. at 761). Because Chavez-Acosta’s case was still open on direct review when
Vance was decided, we must give Vance full retroactive effect. See Harper v. Va. Dep’t of Taxation , 509 U.S. 86, 97 (1993) (holding that, wh en the Supreme Court applies a rule of law to the case before it, “that rule is the controlling interpreta tion of federal law and must be given full retroactive effect in all ca ses still open on direct review and as to all events, regardless of whether such events pr edate or postdate [the] announcement of the rule”). We believe that a Ne w Mexico court would treat Vance the same way when considering Chavez-Acosta’s claim unde r the New Mexico Human Rights Act. See Rodriguez , 278 P.3d at 1050 (“[O]ur Supreme Court has noted that our analysis of claims under the Human Rights Act is guided by the federal courts’ interpretation of unlawful discrimination under Title VII.”).-13- SWC contends that Stewart was not a supervisor under Vance. At the time of his alleged conduct, Stewart was an Assistant Te am Leader in the Cheese Department. SWC asserts that this did not gi ve him the authority to caus e 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 lia ble 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 Stewar t’s supervisory status. Further, she asserts that the district court fo und that Stewart was a supervisor, and that SWC waived argument on this point by failing to contes t 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 qualif ied as a supervisor. It also appears from the record that SW C did not contest this characte rization. But, contrary to Chavez-Acosta’s assertions, there are two r easons why we can cons ider this argument. First, it would seem unfair to require SWC to formulate arguments by divining the outcome of future Supreme Court decisions. An d 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 cour t 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 consid erations disposed of, we hold that Stewart was not a supervisor under Vance . While the district court found that Stewart was a part of the-14- “supervisory hierarchy at SW C,” this is not enough. At the time of the contested incidents, Stewart was an Assistant Team L eader in the Cheese Department. His duties did not give him the authority to take any “tangible employ ment actions” against ChavezAcosta. Instead, that authority resided w ith 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 di d not amount to that of a “supervisor” for Title VII purposes. Give n Stewart’s status, SWC cannot be held vicariously liable for his alleged harassment of Chavez-Acosta.

ii. Negligence To prevail on a negligence th eory, 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 Harrison v. Eddy Potash, Inc. , 112 F.3d 1437, 1444 (10th Cir. 1997), vacated , 524 U.S. 947 (1998)). Actual knowle dge can be demons trated “in most cases where the plaintiff has reported hara ssment to management-level employees.” Id. If a management-level employee was not notif ied, Chavez-Acosta could demonstrate constructive knowledge by showing that St ewart was a “‘dangerous employee’ whose tendencies [SWC] should have known about” based on his conduc t towards others.
Kramer , 743 F.3d at 755. To determine whethe r to consider acts alleged by other employees as relevant to SWC’s construc tive knowledge of Stewart’s harassment of Chavez-Acosta, “we look to ‘[t ]he extent and seriousness of the earlier harassment and-15- the similarity and nearness in time to the later harassment . . . .’” Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1 147 (10th Cir. 2008) (alterati ons in original) (quoting Hirase-Doi v. U.S. W. Commc’ns, Inc. , 61 F.3d 777, 783–84 (10th Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. , 524 U.S. 742, and Faragher v. C ity of Boca Raton , 524 U.S. 775 (1998)). Chavez-Acosta stresses that she has pres ented enough evidence to make SWC’s knowledge a disputed issue of material fa ct. She asserts SWC kn ew 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-Aco sta 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-pho ne picture of his genitals at a company party in 2008 and that many ma nagement-level employees at the party had even seen the picture. And finally, Chavez-Ac osta claims that at least one other employee complained to management about Stewart’s conduct. She believes that, wh en combin ed, 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, cann ot possibly be enough to impute actual knowledge to SWC. Regarding actual knowledge, it also hi ghlights 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-16- two years before his alleged harassment of Ch avez-Acosta are insufficient to show that SWC had constructive knowledge of his ha rassment 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 compla ined about Stewart engaging in similar conduct. SWC is correct on all counts. First, conc erning SWC’s actual knowledge, ChavezAcosta has never indicated that she repor ted 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 vicari ous liability theory di scussed 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 whethe r 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 in the reco rd that any of these incidents (other than the incident at the 2008 pa rty) were ever reported to management or taken to the appropriate authorities. SWC’ s constructive knowledge, then , must be imputed from Stewart’s actions at the 2008 party. While Stewart’s conduct was undoubtedly inappropriate, Chavez-Acosta asks us to infer SWC’s constructive knowledge regarding her discrimination based on one dissimilar inci dent two years before. We cannot say this incident alone would suffice to give SWC constructive knowledge of Stewart’s later harassment of Chavez-Acosta.-17- We therefore conclude that Chavez-Acosta has not shown that SWC could be liable for Stewart’s conduct under either a vicario us liability theory or a negligen ce theory.

D. Negligent Hiring and Supervision Chavez-Acosta offers negligent supervis ion as another theory under which SWC could be liable for Stewart’s conduct. Under New Mexico la w, 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 , 742 P.2d 517, 519 (N.M. Ct. App. 19 87) (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 thereo f, is the same. Chavez-Acosta contends SWC was negligent for retaining Stewart, but the only evidence she o ffers 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 cl aim, so too is this eviden ce not enough to overcome summary judgment on the issu e of negligent hiring.-18- 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 han dbook regarding the at-will nature of the employment, Chavez-Acos ta claims there was an implied contract that, after 90 days, an employee at SWC w ould be fired for good cause only. She highlights that the existence of an implied cont ract is usually a question of fact for a jury, and she believes that she has presented enough evidence that this que stion should survive summary judgment and reach a jury. SWC counters in two ways. First, it cont ends that Chavez-Acosta resigned her position and has failed to create a fact issue on her constructive discharge claim. Second, SWC argues that Chavez-Acosta was an at-will employee and t hus—even if she was constructively discharged—such discharge c ould not constitute a breach of contract. We believe that SWC could succeed under either theory. We need not concern ourselves with its argument regarding th e factual basis underlying Chavez-Acosta’s constructive discharge argument, however, because this is u ltimately 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

6 It may at first seem incongruous that we lack jurisdiction to consider ChavezAcosta’s constructive discharg e claim, and yet we can cons ider her arguments regarding a breach of contract when the “breach” is the same alleged constructive discharge. It appears, however, that New Mexico would perm it this line of argume nt to proceed in a breach of contract claim under similar circumstances. See Gormley v. Coca-Cola Enters. , 85 P.3d 252, 256 (N.M. Ct. App. 2003) (entertaining a claim for breach of contract based on constructive discharge where the plainti ff never filed an administrative complaint). Therefore, we will also consider this argument.-19- 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 writte n agreement modifying the terms of her employment and conforming to the SWC handbo ok’s requirements exists. Instead, she asserts that SWC’s words and actions create d 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 ques tion of fact, and thus summary judgment is appropriate only if the evidence is insufficient to create a ge nuine issue of material fact regarding whether an implied contract was established. See, e.g., Sullivan v. Am. Online,
Inc. , 219 F. App’x 720, 721–22 (10th Cir. 2007) (unpublished) (citing Fed. R. Civ. P. 56(c) and Shull v. N.M. Potash Corp. , 802 P.2d 641 (N.M. 1990)). Even assuming that the words and actions of her supervisors informed Chavez-Acosta that her employment status had been modi fied, this would still be insufficient to overcome summary judgment. In New Mexico , “an implied contract is created only where an employer creates a reasonable e xpectation” of continued employment. Hartbarger v. Frank Paxton Co. , 857 P.2d 776, 783 (N.M. 1993). We have previously found under New Mexico law th at “repeated unequivocal wr itten declarations of [an individual’s] at-will status,” particularly when these declarati ons include one that “explicitly preclude[s] oral modifications,” are more than enough to make unreasonable a plaintiff’s belief that her supe rvisor’s statements and actions modified the at-will nature-20- of her contract. Sullivan , 219 F. App’x at 722. That is precisely th e situation here. Given the repeated written acknowled gments of her at-will stat us and the company policy prohibiting oral modification of that status , we find unreasonable any belief ChavezAcosta may have harbored th at her status as an at-w ill employee had morphed into something different. We therefore affirm the district court’s grant of summary judgm ent as to ChavezAcosta’s breach of contract claims.

III. Conclusion For the reasons stated above, we DISMIS S Chavez-Acosta’s constructive discharge claim for lack of jurisdiction and AFFIRM the dist rict court as to all other issues raised in this appeal. ENTERED FOR THE COURT,

Gregory A. Phillips Circuit Judge