UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

YVONNE MACIAS, 

 Plaintiff - Appellant/Cross-Appellee, 

v. 

SOUTHWEST CHEESE COMPANY, LLC, 

 Defendant - Appellee/Cross-Appellant.

Nos. 14-2109 & 14-2154 

(D.C. No. 2:12-CV-00350-LH-WPL) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

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 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 1 
- 2 - 

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. 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, 

 1

 SWC offered evidence from its human resources director, Brenda Miller, 

who stated that Ms. Holguin was a temporary employee who was not retained 

because she had falsified her educational background. Ms. Holguin, however, stated 

that she was fired in retaliation for reporting Mr. Stewart. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 2 
- 3 - 

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. 

 2

 We recently affirmed the grant of summary judgment to SWC on separate 

claims brought by Ms. Chavez-Acosta. See Chavez-Acosta v. Sw. Cheese Co., 

___ F. App’x ___, 2015 WL 1768989, at *1 (10th Cir. Apr. 20, 2015). 

3

 Ms. Macias gave seemingly conflicting statements about why Mr. Borjas 

called her into his office. She initially testified at her deposition that he had always 

asked her work-related questions. See Aplee. App. at 346-47. But in her 

post-deposition affidavit, she stated that he would call her into his office “for 

absolutely no legitimate work related reason.” Aplt. App. at 51. The district court 

found no conflict between these two statements, id. at 116-17, and SWC does not 

challenge this ruling on appeal, see Aplee. Resp. Br. at 13-14, 21-26. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 3 
- 4 - 

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 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. 

 4

 Upon removal to federal court, Ms. Macias amended her complaint to add a 

claim for race discrimination under 42 U.S.C. § 1981. The district court dismissed 

that claim at the pleading stage, and Ms. Macias does not appeal that ruling. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 4 
- 5 - 

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.” Mitchael 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 

 5

 We recently affirmed the grant of summary judgment to SWC on separate 

claims brought by Ms. Martinez. See Martinez v. Sw. Cheese Co., ___ F. App’x ___, 

2015 WL 3775671, at *1 (10th Cir. June 18, 2015). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 5 
- 6 - 

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 plaintiff’s 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)). 

Our review of the court’s decision fails to disclose any abuse of discretion. 

Ms. Macias initially contends the district court erred in striking her statement that she 

reported Mr. Borjas’s conduct to human resources director Brenda Miller. But her 

deposition testimony indicated she did not complain to anyone about the time 

Mr. Borjas asked her why she was so quiet, see Aplee. App. at 349, or the times he 

stared at her, id. at 350. She also said she did not complain to anyone in management 

about him standing too close to her. Id. at 351. In fact, Ms. Macias could not 

remember speaking to anyone in human resources about Mr. Borjas, id. at 355, or 

even requesting to be moved to a different shift, id. at 409-10. This testimony plainly 

contradicts Ms. Macias’s post-deposition affidavit statement that she complained to 

Ms. Miller about Mr. Borjas. Consequently, the district court acted within its 

discretion in striking it. 

Ms. Macias disagrees, suggesting her inability to recall talking to Ms. Miller is

consistent with her statement that she complained to Ms. Miller. Even if we could 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 6 
- 7 - 

see such consistency, the argument would still fail because we have upheld the 

exclusion of affidavits for creating sham fact issues when an affiant offers 

information that she claimed she could not recall at her prior deposition. See, e.g.,

Juarez v. Utah, 263 F. App’x 726, 734-36 (10th Cir. 2008) (unpublished) (affirming 

the exclusion of an affidavit that provided evidence of alleged racial slurs that 

plaintiff claimed she could not recall at her deposition));6 Mitchael, 179 F.3d at 

854-55 (affirming the exclusion of an affidavit “in which [the affiant] arguably 

contradicted his deposition, or at least more clearly recalled discussions and 

meetings”). Given these authorities, the court did not abuse its discretion in 

excluding the statement.7

 

We need not individually discuss Ms. Macias’s remaining arguments. The 

district court’s detailed and cogent analysis thoroughly explained why each of the 

 6

 Unpublished opinions may be cited for their persuasive value. Pre-Paid 

Legal Servs., Inc. v. Cahill, 786 F.3d 1287, 1294 n.2 (10th Cir. 2015); 10th Cir. 

R. 32.1. 

 7

 Ms. Macias also asserts that she tried to complain to Ms. Miller but 

Ms. Miller refused to listen. See Aplt. Br. at 12 (“[Brenda Miller] did not want to go 

into details, so I refused to sign [the disciplinary form]” (internal quotation marks 

omitted)). This argument does not reconcile the contradiction between Ms. Macias’s 

affidavit and her deposition, and in any event, it is clear from the record that 

Ms. Miller had refused to go into details about a production error that resulted in 

Ms. Macias’s termination—viz., her failure to add culture to a vat of cheese—not her 

purported attempt to complain about Mr. Borjas. See Aplee. App. at 155 (Miller 

Aff., para. 8) (explaining that Ms. Macias was fired for failing to add culture to a 

vat); 412 (Macias Dep.) (explaining that Ms. Macias refused to sign a disciplinary 

action form because Ms. Miller “did not want to go into details”); see also Aplt. App. 

at 54 (Macias Aff., para. 20) (stating that Ms. Miller refused to go into details about 

the cause for Ms. Macias’s termination). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 7 
- 8 - 

challenged statements was subject to exclusion. We affirm the district court’s 

exclusion of the relevant portions of the affidavits for substantially the same reasons 

stated by the district court in its order dated June 11, 2014. 

B. Summary Judgment 

We proceed, then, to review de novo the district court’s summary judgment 

rulings, applying the same standard as the district court and viewing the evidence in 

the light most favorable to Ms. Macias as the non-moving party. Morris v. City of 

Colo. Springs, 666 F.3d 654, 660 (10th Cir. 2012). “Summary judgment should be 

granted ‘if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.’” Felkins v. City of 

Lakewood, 774 F.3d 647, 650 (10th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “If a 

reasonable jury could return a verdict for the nonmoving party, summary judgment is 

inappropriate.” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (internal 

quotation marks omitted). 

1. Hostile Work Environment8

a. Application of Time-Bar and Exhaustion Principles 

Before considering the merits of Ms. Macias’s hostile work environment 

claim, we confront SWC’s parallel arguments that the claim is untimely and 

unexhausted. Under the relevant provisions of both Title VII and the NMHRA, a 

 8

 The same standards govern Title VII and NMHRA claims. See Orr v. City of 

Albuquerque, 531 F.3d 1210, 1213 n.2 (10th Cir. 2008); Rodriguez v. N.M. Dep’t of 

Workforce Sols., 2012-NMCA-059, ¶ 14, 278 P.3d 1047, 1050 (N.M. Ct. App. 2012). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 8 
- 9 - 

plaintiff must file a charge of discrimination within three hundred days of an alleged 

unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1); N.M. Stat. Ann. 

§ 28-1-10(A); see also Gad v. Kan. State Univ., 787 F.3d 1032, 1039-40 (10th Cir. 

2015) (discussing various exhaustion requirements, including timely filing of 

administrative charge, and holding that absent express congressional direction, such 

requirements should not be treated as jurisdictional). Ms. Macias filed her amended 

charge on July 11, 2011, so her filing period encompasses events that occurred within 

three hundred days prior to that date, or September 14, 2010. Because Mr. Stewart 

exposed himself to Ms. Macias and Ms. Holguin in June 2009, well before the filing 

period, SWC contends the claim is time-barred to the extent it is predicated on that 

act. We disagree. 

 In the context of a hostile work environment claim, “[i]t does not matter . . . 

that some of the component acts of the hostile work environment fall outside the 

statutory time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 

(2002). So long as “an act contributing to the claim occurs within the filing period, 

the entire time period of the hostile environment may be considered by a court.” Id. 

The caveat is that “there must be a relationship between the acts alleged after the 

beginning of the filing period and the acts alleged before the filing period.” Duncan 

v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1308 (10th Cir. 

2005). Pre- and post-filing-period conduct constitutes the same hostile environment 

if it “‘involved the same type of employment actions, occurred relatively frequently, 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 9 
- 10 - 

and [was] perpetrated by the same managers.’” Id. at 1309 (brackets omitted) 

(quoting Morgan, 536 U.S. at 120). 

As the district court recognized, Ms. Macias knew that Mr. Stewart had twice 

exposed himself to Ms. Chavez-Acosta in October 2010 during the filing period, 

which contributed to Ms. Macias’s subjective perception of her work environment. 

See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1146 (10th Cir. 2008) (“[E]vidence 

of a general work atmosphere, including evidence of harassment of other [protected 

groups], may be considered in evaluating a claim, as long as [the plaintiff] presents 

evidence that he knew about the offending behavior.” (brackets and internal 

quotation marks omitted)). And because Mr. Stewart’s act of exposing himself in 

June 2009 bore a sufficient relationship to his acts of exposing himself to 

Ms. Chavez-Acosta in October 2010 during the filing period, the June 2009 exposure 

incident is part of the same hostile work environment. Thus, the claim is not 

time-barred to the extent it relies on the June 2009 exposure. 

Nevertheless, SWC protests that Ms. Macias never exhausted a discrete claim 

implicating Ms. Chavez-Acosta. To satisfy the exhaustion requirement, a claim must 

be “within the scope of the administrative investigation that could reasonably be 

expected to follow from the allegations raised in the charge.” Green v. Donahoe, 

760 F.3d 1135, 1140 (10th Cir. 2014), cert. granted, 135 S. Ct. 1892 (2015). 

Allegations are “minimally sufficient to satisfy the requirements for the contents of a 

charge of discrimination and the purposes of the notice requirement” when they 

“identif[y] the type of discrimination complained of, the alleged harasser, and an 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 10 
- 11 - 

approximate time period.” Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 

(10th Cir. 1998). In her administrative charge, Ms. Macias alleged continuing-action 

sex discrimination and retaliation spanning from February 2009 through January 

2011. And in her attached affidavit, she identified Mr. Stewart by name and alleged 

that he had exposed himself to her. These allegations were sufficient to exhaust the 

hostile work environment claim. 

b. Merits 

Turning to the merits, we conclude that Ms. Macias has demonstrated a 

material issue of fact precluding summary judgment on her hostile work environment 

claim. To establish a sexually hostile work environment, Ms. Macias must “show 

(1) that she was discriminated against because of her sex; and (2) that the 

discrimination was sufficiently severe or pervasive such that it altered the terms or 

conditions of her employment and created an abusive working environment.” 

Morris, 666 F.3d at 663 (internal quotation marks omitted). In assessing whether 

conduct was sufficiently severe, we examine the “totality of circumstances, and 

consider such factors as the frequency of the discriminatory conduct; its severity; 

whether it is physically threatening or humiliating, or a mere offensive utterance; and 

whether it unreasonably interferes with an employee’s work performance.” Id. at 664 

(brackets and internal quotation marks omitted). The environment must be 

“objectively and subjectively hostile or abusive.” Davis v. U.S. Postal Serv., 

142 F.3d 1334, 1341 (10th Cir. 1998). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 11 
- 12 - 

Regarding the first element (whether the conduct was due to Ms. Macias’s 

gender), the district court apparently assumed that Mr. Stewart’s behavior was 

motivated by gender and that, while some of Mr. Borjas’s conduct was not, some 

may have been. Apart from a passing reference, SWC appears to accede to the 

district court’s assessment. See Aplee. Resp. Br. at 33 (“The allegations as to Borjas 

do not concern gender-motivated behavior, and the few that arguably do—staring, 

occasionally standing too close to Macias, and one instance of a ‘clumsy 

flirtation,’—do not rise to the level of objectively ‘severe’ or ‘pervasive’ 

conduct . . . .” (citation omitted). We conclude that the evidence was sufficient to 

establish gender-motivated behavior. See Harsco Corp. v. Renner, 475 F.3d 1179, 

1186 (10th Cir. 2007) (“[T]he inference [of gender-motivated behavior] is easy to 

draw if the harasser and the harassed employee are of opposite sexes, at least when 

the conduct at issue involves explicit or implicit proposals of sexual activity.” 

(internal quotation marks omitted)). 

As to the second element concerning the severity or pervasiveness of the 

conduct, the district court concluded that the combined conduct of Mr. Stewart and 

Mr. Borjas was neither severe nor pervasive enough because it transpired over twenty 

months. See Aplt. App. at 159 (citing Penry v. Fed. Home Loan Bank of Topeka, 

155 F.3d 1257, 1263 (10th Cir. 1998)). But unlike Penry, this case involves more 

than inappropriate comments and offensive touching over a three-year period. 

See 155 F.3d at 1260-61. Indeed, although SWC attempts to characterize this claim 

as premised on a single episode of harassment, Mr. Stewart’s act of exposing himself 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 12 
- 13 - 

occurred three times with three different women—twice with Ms. Chavez-Acosta and 

once with Ms. Macias and Ms. Holguin.9

 Moreover, his conduct was more than a 

mere offensive utterance; it was not only physically threatening and humiliating—if 

true, it was also criminal, see N.M. Stat. Ann. § 30-9-14. The environment was 

objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that 

Mr. Stewart might expose himself to her again or assault her in some way. Under 

these circumstances, Mr. Stewart’s act of exposing himself, coupled with his alleged 

sexual leering and the conduct of Mr. Borjas, demonstrates a triable factual issue 

regarding the severity and pervasiveness of the alleged harassment. 

SWC resists this conclusion, suggesting that we have recognized severe though 

limited harassment only in cases involving sexual assault. See Aplee. Resp. Br. at 

34-35. But the legal standard for assessing severity does not require physical contact. 

See Wright v. Rolette Cty., 417 F.3d 879, 885 (8th Cir. 2005) (rejecting argument that 

defendant’s conduct could not constitute sexual harassment absent allegations that he 

touched or made sexual advances toward the plaintiff). Rather, we evaluate the 

totality of the circumstances and note that, even without allegations of physical 

 9

 We have rejected the assertion “that a single incident of physically 

threatening conduct can never be sufficient to create an abusive environment.” 

Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998). Indeed, our cases 

recognize that an isolated incident of harassment, if extremely serious, can create a 

hostile work environment. See MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 

1280 (10th Cir. 2005) (noting that “courts should filter out . . . isolated incidents 

(unless extremely serious)”); Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1024 n.5 

(10th Cir. 2001) (recognizing that a single incident of sexual harassment can be 

sufficient to create a hostile work environment). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 13 
- 14 - 

contact, courts have rejected summary judgment where limited episodes of 

harassment are extremely serious. See, e.g., Howley v. Town of Stratford, 217 F.3d 

141, 148-49, 154-55 (2d Cir. 2000) (reversing summary judgment where plaintiff was 

subjected to a single “obscene harangue” followed by other non-physical 

harassment); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (reversing summary 

judgment where defendant sent plaintiff two bizarre letters and arranged to be 

transferred back to her office following a six-month separation). Moreover, “the 

severity and pervasiveness evaluation is particularly unsuited for summary judgment 

because it is quintessentially a question of fact.” O’Shea v. Yellow Tech. Servs., Inc., 

185 F.3d 1093, 1098 (10th Cir. 1999) (internal quotation marks omitted). Given 

these authorities, we cannot say as a matter of law that the conduct here was not 

extremely serious, particularly when we have previously characterized, albeit without 

analysis, a defendant’s act of exposing himself as “extreme” sexual harassment. 

Hendry v. Schneider, 116 F.3d 446, 447, 450 (10th Cir. 1997); accord Huston v. 

Proctor & Gamble Paper Prods. Corp., 568 F.3d 100, 102-04 (3d Cir. 2009) 

(recognizing a hostile work environment existed where there was evidence of four 

indecent exposures and pornography viewed by male coworkers). A reasonable jury 

could reach a similar conclusion in this case. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 14 
- 15 - 

c. Liability 

SWC urges us to affirm the district court on the alternative ground that 

Ms. Macias cannot establish a viable theory of liability.10 According to SWC, 

vicarious liability is not an option because Mr. Stewart lacked authority to take 

“tangible employment actions” against her. See Vance v. Ball State Univ., 133 S. Ct. 

2434, 2454 (2013). Nor is it liable on a negligence theory, SWC contends, because it 

had neither actual nor constructive knowledge of the alleged harassment. We need 

not decide whether SWC could be vicariously liable for Mr. Stewart’s misconduct 

because the record reveals a material factual dispute concerning SWC’s negligence. 

“In general, an employer is directly liable for an employee’s unlawful 

harassment if the employer was negligent with respect to the offensive behavior.” 

Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 737 (10th Cir. 2014) (internal 

quotation marks omitted). Under a negligence theory, “an employee must present 

enough evidence for a reasonable jury to find that the employer knew or should have 

known about the harassment but failed to stop it.” Debord v. Mercy Health Sys. of 

Kan., Inc., 737 F.3d 642, 650 (10th Cir. 2013), cert. denied, 134 S. Ct. 2664 (2014). 

 10 The district court, having granted summary judgment on the severity and 

pervasiveness of the harassment, did not reach the issue of liability. Ms. Macias did 

not analyze the issue of liability in her opening brief but appropriately addressed it in 

her reply brief. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 

2015) (explaining that an appellant must explain in the opening brief why the district 

court was wrong and may respond in a reply brief to potential alternative grounds for 

affirming); United States v. Brown, 348 F.3d 1200, 1213 (10th Cir. 2003) (“When an 

appellee raises in its answer brief an alternative ground for affirmance, the appellant 

is entitled to respond in its reply brief.”). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 15 
- 16 - 

An employer usually has actual knowledge when the employee reports the 

harassment to a management-level employee and constructive knowledge when the 

harassment is so pervasive that the employer should have known the harasser was a 

“dangerous employee.” Kramer, 743 F.3d at 755. In assessing constructive 

knowledge, evidence the harasser has harassed other employees may be relevant, “but 

the ‘extent and seriousness of the earlier harassment and the similarity and nearness 

in time to the later harassment should be factors in deciding whether to allow the 

evidence of harassment of others to prove notice.’” Id. at 756 (quoting Hirase-Doi v. 

U.S. West Comms., Inc., 61 F.3d 777, 783-84 (10th Cir. 1995), abrogated on other 

grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. 

City of Boca Raton, 118 S. Ct. 2275 (1998)). 

We see at least two material factual disputes concerning SWC’s actual 

knowledge. First, Ms. Macias testified at her deposition and stated in her affidavit 

that she reported the June 2009 exposure to a shift supervisor, Bryant Fernandez.11 

Ms. Holguin also reported the June 2009 exposure, but nothing was done about it, 

and as a consequence, Mr. Stewart allegedly exposed himself twice more to 

Ms. Chavez-Acosta. Attempting to avoid any factual dispute regarding its actual 

 11 SWC does not dispute that Mr. Fernandez qualifies as a “management-level 

employee,” which “for the purposes of imputing knowledge of co-worker harassment 

to the employer, need only be someone who has at least some authority over the 

plaintiff or at least some control over the working environment.” Kramer, 743 F.3d 

at 755 n. 19; see 29 C.F.R. § 1604.11(d) (“With respect to conduct between fellow 

employees, an employer is responsible for acts of sexual harassment of employees in 

the workplace where the employer (or its agents or supervisory employees) knows or 

should have known of the conduct . . . .”). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 16 
- 17 - 

knowledge, SWC ignores the reports of Ms. Macias and Ms. Holguin and instead 

focuses on events preceding and post-dating the June 2009 exposure. See Aplee. 

Resp. Br. at 37-39. But in doing so, SWC fails to dispute, much less rebut, evidence 

of notice about Mr. Stewart’s exposures during the course of the alleged hostile work 

environment. A reasonable jury could conclude that these reports of the June 2009 

exposure gave SWC actual notice of Mr. Stewart’s harassment. 

A second material fact issue concerns the November 2008 episode when 

Mr. Stewart photographed his genitals and then passed the picture around to several 

managers, including Ms. Miller, the director of human resources. This incident 

preceded Ms. Macias’s employment at SWC, but it is still relevant to notice. The 

inquiry is not whether Ms. Macias had knowledge of the incident or whether the 

incident contributed to the hostile work environment—it clearly did not. Rather, the 

question is whether the incident could have triggered SWC’s duty to respond or at 

least put SWC on notice that Mr. Stewart posed a potential threat to the work 

environment. For example, in Debord we considered evidence of alleged harassment 

that occurred some three years before the plaintiff was hired. 737 F.3d at 651. 

Although we determined the evidence was insufficient to provide the employer with 

actual knowledge, we reached that conclusion because the evidence failed to show 

“the extent and seriousness of the earlier harassment and [its] similarity and nearness 

in time to the later harassment.” Id. (brackets and internal quotation marks omitted). 

A reasonable jury could conclude that Mr. Stewart’s act of photographing his 

genitals to share with managers at an off-site co-worker function sponsored by SWC 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 17 
- 18 - 

is serious and similar to his act of exposing himself to Ms. Macias at work. 

Moreover, the incident in November 2008 was close enough in time to the June 2009 

exposure to create a fact issue regarding whether SWC should have known about 

Mr. Stewart’s potential for the type of inappropriate conduct that occurred a few 

months later. See Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 41 (1st Cir. 2011) 

(holding that conduct at an off-site going-away party was relevant to the hostile work 

environment claim because it showed notice to the employer “and toleration of a 

general climate of offensive remarks and displays”); see also Parrish v. Sollecito, 

249 F. Supp. 2d 342, 351-52 (S.D.N.Y. 2003) (explaining that evidence of off-site 

conduct may be relevant because the employment relationship “often carries beyond 

the work station’s physical bounds and regular hours,” and “often such outside 

misbehavior rebounds and transposes its consequences inside the actual workplace”). 

Although the panel in Chavez-Acosta v. Southwest Cheese Co., ___ F. App’x 

___, 2015 WL 1768989, at *7 (10th Cir. Apr. 20, 2015), reached a different 

disposition on the hostile work environment claim in that case, there are significant 

evidentiary distinctions between the two cases.12 In Chavez-Acosta, there was no 

evidence that the October 2010 exposures were reported to anyone at SWC until 

Ms. Chavez-Acosta filed her administrative charge with the New Mexico Human 

 12 The panel in Martinez v. Southwest Cheese Co., ___ F. App’x ___, 2015 WL 

3775671, at *4 (10th Cir. June 18, 2015), similarly affirmed summary judgment on 

the hostile work environment claims, but it did so on the procedural ground that the 

administrative charge of discrimination was not filed within 300 days of the alleged 

harassment. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 18 
- 19 - 

Rights Bureau. See id. at *2,7. Nor was there evidence that the June 2009 exposure 

involving Ms. Macias and Ms. Holguin was reported to an appropriate 

management-level employee. Id. Here, the evidence plainly shows that both 

Ms. Macias and Ms. Holguin reported the June 2009 exposure to a management-level 

supervisor. Additionally, in Chavez-Acosta, without evidence that the June 2009 

exposure had been reported to SWC, and absent evidence that Ms. Chavez-Acosta 

had reported the October 2010 exposures, the only other potential notice was the 

November 2008 photographing incident, which was nearly two years removed from 

the October 2010 exposures. But here, only seven months separated the 

photographing incident from the June 2009 exposure to Ms. Macias and Ms. Holguin. 

Given these distinctions, we remand the hostile work environment claim for trial. 

2. Quid Pro Quo Sexual Harassment

To survive summary judgment on her quid pro quo sexual harassment claim, 

Ms. Macias must show a reasonable jury could have found that Mr. Borjas 

“conditioned concrete employment benefits on her submission to sexual conduct and 

had her fired when she did not comply.” Pinkerton v. Colo. Dep’t of Transp., 

563 F.3d 1052, 1060 (10th Cir. 2009).13 We understand Ms. Macias’s claim to allege 

that Mr. Borjas conditioned the benefit of continued employment on her submission 

to his sexual advances, and when she refused to engage in a sexual relationship, he 

 13 The term “quid pro quo” distinguishes this claim, which alleges 

discriminatory treatment culminating in tangible employment action, i.e., disciplinary 

write-ups and termination, from Ms. Macias’s hostile work environment claim, which 

alleges offensive conduct in general. See Ellerth, 524 U.S. at 753-54. 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 19 
- 20 - 

had her disciplined and fired. The evidence does not support this theory. Ms. Macias 

testified that Mr. Borjas never made any sexual advance towards her, such as ask her 

out on a date, ask to kiss or touch him, or do anything—other than work-related 

tasks. Aplee. App. at 195. Moreover, she acknowledged the validity of all 

disciplinary actions against her except her last, and no evidence ties that or any other 

infraction to her refusal to submit to sexual conduct. See Helm v. Kansas, 656 F.3d 

1277, 1287 (10th Cir. 2011) (requiring a “strong causal nexus between the 

supervisor’s harassment and the tangible employment action”). We thus affirm the 

grant of summary judgment to SWC on the quid pro quo claim.

3. Retaliation 

Ms. Macias’s retaliation claim finds a similar fate. Under the relevant 

analytical framework, she was required to show “(1) she engaged in protected 

opposition to discrimination, (2) a reasonable employee would have considered the 

challenged employment action materially adverse, and (3) a causal connection 

existed between the protected activity and the materially adverse action.” Daniels v. 

United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012) (internal quotation 

marks omitted). Ms. Macias cannot make the first showing because no evidence 

shows she engaged in protected opposition to discrimination. Indeed, she did not 

complain to anyone about Mr. Borjas, except to ask to be moved to a different shift 

because he was making her miserable and she was tired of him. But in making that 

request, she never suggested he was discriminating against her, and she never 

explained how he was making her miserable; instead, she testified that she merely 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 20 
- 21 - 

had been complaining about him. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 

1187, 1202-03 (10th Cir. 2008) (holding that to qualify as protected opposition, the 

employee need not use any “magic words” but must convey her concern that the 

employer has engaged in an unlawful discriminatory practice; “[g]eneral complaints 

. . . will not suffice[]”). Absent some indication that Ms. Macias was complaining 

about discrimination, the evidence is insufficient to make a prima facie case of 

retaliation, and the district court was therefore correct to grant summary judgment to 

SWC. 

C. Cross Appeal 

Finally, SWC contends the district court abused its discretion in declining 

supplemental jurisdiction over the state-law claims. See Dahl v. Dahl, 744 F.3d 623, 

629 (10th Cir. 2014) (reviewing denial of supplemental jurisdiction for abuse of 

discretion). If we had affirmed the district court’s summary judgment ruling as to all 

the federal claims, the district court’s decision declining supplemental jurisdiction 

would have been sound. See 28 U.S.C. § 1367(c)(3) (authorizing remand of state-law 

claims where district court has dismissed all claims over which it has original 

jurisdiction). However, because we reverse the grant of summary judgment on the 

hostile work environment claim, the legal predicate for the district court’s decision 

no longer exists. We therefore vacate that portion of the district court’s judgment 

declining supplemental jurisdiction and remanding the state-law claims to state court. 

See Johnson v. Riddle, 443 F.3d 723, 732 (10th Cir. 2006). 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 21 
- 22 - 

III. CONCLUSION

 We reverse the district court’s grant of summary judgment on the hostile work 

environment claim and remand that claim for trial. We also vacate the district court’s 

decision declining supplemental jurisdiction over the state-law claims. In all other 

respects, the district court’s judgment is affirmed. 

ENTERED FOR THE COURT, 

Scott M. Matheson, Jr. 

Circuit Judge 

Appellate Case: 14-2109 Document: 01019479661 Date Filed: 08/24/2015 Page: 22