                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 26, 2012
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 TERESA HERNANDEZ,

              Plaintiff-Appellant,

 v.                                                     No. 11-1244

 VALLEY VIEW HOSPITAL
 ASSOCIATION,

              Defendant-Appellee,

 and

 MORRISON MANAGEMENT
 SPECIALISTS, INC., d/b/a Morrison
 Healthcare Food Services,

              Defendant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                    (D.C. No. 1:10-CV-00455-REB-MJW)


Submitted on the briefs: *

Theodore G. Hess, Hess & Schubert, LLP, Glenwood Springs, Colorado, for
Plaintiff-Appellant.


       *
       After examining the briefs and appellate 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(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Michael C. Santo, Bechtel & Santo, LLP, Grand Junction, Colorado, for
Defendant-Appellee.


Before KELLY, MURPHY, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.



         Teresa Hernandez sued Valley View Hospital Association for race and

national origin discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e to 2000e17. 1 The district court granted summary

judgment for Valley View on Ms. Hernandez’s claims for hostile work

environment and constructive discharge, and dismissed her retaliation claim as

time-barred.

         Exercising jurisdiction under 28 U.S.C. § 1291, we reverse on the hostile

work environment and constructive discharge claims and affirm on the retaliation

claim.




         1
       Pursuant to Fed. R. App. P. 42(b), the parties stipulated to dismiss the
appeal as to defendant Morrison Management Specialists, Inc. See No. 11-1244,
Order of Sept. 15, 2011.

                                          -2-
                               I. BACKGROUND

A.    Factual History 2

      Ms. Hernandez, a Latina of Mexican origin, began working in 2001 at

Valley View in the food services department. Marc Lillis and Nicholas Stillahn

started supervising her in November 2004 and March 2005, respectively.

Ms. Hernandez transferred out of food services in June 2005, but returned in

October 2006. As discussed in detail below, Ms. Hernandez alleges that during

the time Mr. Lillis and Mr. Stillahn supervised her, they frequently made racially

derogatory jokes and comments about Latinos and Mexicans, and continued to do

so despite her complaints to them that their remarks were offensive.

      Ms. Hernandez provided the following examples in her discovery responses

and at her deposition:

      •     Although Ms. Hernandez was not able to recall some dates, the racial

            joke Mr. Lillis repeated most often was to ask Mr. Stillahn, “[D]o

            you know why Mexicans don’t BBQ?,” and when Mr. Stillahn asked

            “[W]hy[?],” Mr. Lillis answered, “[B]ecause the beans go through

            the grill.” Aplt. App. at 298, 427.



      2
       On an appeal from summary judgment, “we examine the record and all
reasonable inferences that might be drawn from it in the light most favorable to
the non-moving party,” without making credibility determinations or weighing the
evidence. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir.
2009) (internal quotation marks omitted). The facts are presented accordingly.

                                        -3-
•   Mr. Lillis and Mr. Stillahn repeated another racial joke several times,

    once in December 2006: “[D]o you know why Mexicans and Latinos

    make tamales for Christmas? So they can have something to

    unwrap.” Id. at 298, 427.

•   Her supervisors repeated these and other racial jokes before and after

    her transfer. Id. at 299 (testifying Mr. Lillis made the barbeque joke

    three to five times); 302-03 (made the tamale joke three or four

    times); 427 (listing these as examples of the racial jokes).

    Ms. Hernandez repeatedly complained to Mr. Lillis and Mr. Stillahn

    that these jokes and comments were racist, inappropriate, and not

    nice. Id. at 301-03, 305-07.

•   In June 2005, Barbara, a non-Latina co-worker, told the other

    employees, in front of Mr. Lillis, to “put ice in the cups. You’re not

    in Mexico anymore.” Id. at 300-01, 332. Ms. Hernandez told

    Mr. Lillis this remark was racist and that she was offended by it

    because she was from Mexico. Id. at 302. He laughed and said,

    “She’s not talking about you. She’s talking about a country.” Id.

    Ms. Hernandez replied that she came from that country; Mr. Lillis

    answered, “Well, you’re a citizen of the United States.” Id.




                                -4-
•   In August 2006, Mr. Lillis laughed at Ms. Hernandez’s son’s prom

    photo and said that only a Latino would wear tennis shoes to a prom.

    Id. at 303.

•   In December 2006, Mr. Stillahn complained about having to work

    Christmas Day when Latino workers were going to be off, saying

    “Of course. My hair is not dark.” Id. at 232. When Ms. Hernandez

    asked what he meant, he said, “I’m not a Latino.” Id. She

    complained about this remark to Paul Tapia, another supervisor, who

    told her the remark was not racist. Id.

•   In March 2007, when Ms. Hernandez’s family members joined her

    for lunch, Mr. Stillahn asked her if they had paid for their lunches.

    When she said “yes,” he challenged her because he had not seen her

    at the register. Id. at 233, 327. She told Mr. Stillahn that she

    thought he was being racist because some of her family are

    African-American, and she told him he could check the camera at the

    register.

•   Every time he saw a Latino worker get a drink, Mr. Stillahn asked if

    they had paid for it, but he never asked that of a non-Latino worker.

    Id. at 234. Ms. Hernandez repeatedly complained to Mr. Lillis about

    this, but he never responded. Id. at 235.




                                -5-
      •      Mr. Stillahn chastised a Latino worker for wearing non-conforming

             shoes, but he said nothing to a white employee who did the same.

             Id. at 235-36.

      •      One day in June 2007, Mr. Lillis repeatedly asked Ms. Hernandez if,

             or made the accusation that, an accused murderer in the news with

             the Hernandez surname was her son or brother. Id. at 230-31. He

             asked this question every time he walked by her, at least five times,

             in front of others. Id. at 230-31, 428. She told Mr. Lillis she was

             unrelated to the murderer and that “[j]ust because my name is

             Hernandez and just because I’m a Latino doesn’t mean my son

             murdered that guy.” She repeatedly told him that his remark upset

             her, made her uncomfortable, and was racist. Id.

      Ms. Hernandez testified that on July 20, 2007, Mr. Stillahn angrily yelled at

her that the cafeteria had “looked like shit” the day before and then “started

screaming.” Aplt. App. at 238. Ms. Hernandez responded, “Well, maybe I’m not

white enough.” Id. She said Mr. Stillahn “got even more upset” and pushed a

cart and kicked a door. Id. When she confirmed to Mr. Lillis that she had made

that remark, he told her to go home.

      That afternoon, Nikki Norton, Valley View’s Human Resources

Coordinator, told Ms. Hernandez she was being suspended for making the

“not white enough” comment. Ms. Hernandez asked Ms. Norton why she was

                                         -6-
being suspended for her comment when a non-Latina co-worker, Barbara, was not

disciplined for making a remark Ms. Hernandez had complained at the time was

racist and offensive to Mexicans. Id. at 317, 303-02. Ms. Hernandez told

Ms. Norton about the racist jokes and comments that Mr. Lillis and Mr. Stillahn

often made. Id.

      That same day, Ms. Norton sent an email to Valley View’s Administrative

Director of Human Resources, Daniel Biggs, stating that Mr. Lillis and Mr. Tapia

wanted to fire Ms. Hernandez because they “didn’t want that type of person

working here.” Id. at 573. She told Mr. Biggs that she agreed Ms. Hernandez

should be fired and told Mr. Lillis he first had to “get his ducks in a row’ and

write [Ms. Hernandez] up for job performance issues.” Id. Ms. Norton further

stated she would pull Ms. Hernandez’s personnel file to see if there were other

write-ups. Id. at 574.

      Ms. Hernandez met with Mr. Lillis and Mr. Biggs on July 30, 2007, and

asked to be reassigned to any other position at Valley View outside of food

services because she did not feel safe working in the kitchen given how angry

Mr. Stillahn had been. Id. at 247-48. Mr. Biggs denied her transfer request but

offered her leave under the Family and Medical Leave Act (FMLA) until October

15, 2007, which Ms. Hernandez accepted.




                                         -7-
      Mr. Biggs met with Ms. Hernandez on October 12, 2007, to discuss

“performance concerns raised with [Ms. Hernandez] but never formally

documented.” Id. at 572. Ms. Hernandez again requested a transfer to any

position at Valley View other than food services, which Mr. Biggs denied. When

Ms. Hernandez failed to return to work by October 18, 2007, Mr. Biggs

terminated her employment.

B.    Procedural History

      After exhausting her administrative remedies and obtaining a notice of right

to sue from the Equal Employment Opportunity Commission (EEOC),

Ms. Hernandez filed a complaint against Valley View claiming racial and national

origin discrimination based on a hostile work environment and constructive

discharge. In an amended complaint, she claimed retaliation.

      Valley View moved for summary judgment. Ms. Hernandez submitted an

affidavit from herself and one from a Latina co-worker, Raquel Nunez. In her

affidavit, Ms. Hernandez gave another example of a racial joke, stating Mr. Lillis

asked, “[d]o you know why blacks and Latino[s] never get married? . . . Well,

blacks are lazy, and Latinos steal. So if they got married, a black Latino would

be too lazy to steal.” Id. at 552. She also stated that Mr. Stillahn and Mr. Lillis

referred to a black cook using a racial epithet. Id. It is unclear from

Ms. Hernandez’s affidavit if she heard the latter reference or if she was relying on

Ms. Nunez’s affidavit.

                                         -8-
      Ms. Nunez stated in her affidavit that Mr. Lillis called the black cook a

racial epithet, made fun of him, and excluded him from meetings. Id. at 563.

Ms. Nunez stated that Mr. Lillis often questioned Latino workers if they had paid

for their bottled drinks but never questioned white employees. Id. at 563-64. 3

      The district court granted summary judgment for Valley View on

Ms. Hernandez’s hostile working environment claim. It characterized

Ms. Hernandez’s evidence as only “a handful of racially insensitive jokes and

comments over a period of more than three years,” which, “while not laudable,”

would not support a racial or national origin hostile work environment claim.

Aplt. App. at 613. It held the evidence demonstrated that Ms. Hernandez’s

supervisors were “boorish, infantile, and unprofessional,” but ruled that she failed



      3
       We reject Valley View’s argument that the district court should have
disregarded the affidavits submitted in Ms. Hernandez’s response as “sham
affidavits.” See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (stating
“courts will disregard a contrary affidavit when they conclude that it constitutes
an attempt to create a sham fact issue”). To be disregarded as a sham, an
affidavit must contradict prior sworn statements. See Law Co., Inc. v. Mohawk
Constr. & Supply Co., Inc., 577 F.3d 1164, 1169 (10th Cir. 2009).
Ms. Hernandez’s affidavit does not contradict her prior deposition testimony.
She did not testify, as Valley View claims, that she heard only two jokes. At her
deposition, Valley View asked her to describe Mr. Lillis’s racial jokes. She
described the barbeque and tamale jokes and “[s]tuff like that.” Aplt. App.
at 298. Valley View’s counsel then asked her to describe other jokes. She
answered: “So many. It’s like - just remembering makes me -” at which point
Valley View’s counsel interrupted her answer. Id. at 299. Ms. Hernandez’s
testimony reflects that she described the barbeque and tamale jokes as examples.
Her affidavit and Ms. Nunez’s provided additional examples that did not
contradict her testimony.

                                        -9-
to present evidence of a “‘steady barrage of opprobrious racial comments.’” Id.

(quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (holding that a

plaintiff does not make a sufficient showing of a pervasively hostile work

environment with a few isolated incidents, but must show “a steady barrage of

opprobrious racial comments”) (internal quotation marks omitted)). The district

court stated Ms. Hernandez provided “few specifics” to support her allegations of

insensitive jokes and disparate treatment, noting it was unclear if the jokes or the

questions about paying for drinks were directed at Ms. Hernandez personally.

Aplt. App. at 613-14.

      The district court also granted summary judgment for Valley View on the

constructive discharge claim. Based on its ruling that Ms. Hernandez failed to

demonstrate sufficiently severe conditions to constitute a hostile work

environment, it held she could not prove constructive discharge premised on a

claim that her workplace was so intolerable that she had no choice but to resign.

      Finally, the district court ruled that Ms. Hernandez’s amended complaint

showed on its face that the applicable statute of limitations on her retaliation

claim had expired, and dismissed it for failure to state a claim. In doing so, it

rejected her argument that the claim related back to her original complaint.




                                         -10-
                         II. STANDARDS OF REVIEW

      Ms. Hernandez’s hostile work environment and constructive discharge

claims were dismissed on summary judgment. “We review the grant of judgment

de novo, applying the same standards as the district court.” Simmons v. Sykes

Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011). Summary judgment is

appropriate only “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.”

Fed. R. Civ. P. 56(a).

      The district court dismissed Ms. Hernandez’s retaliation claim under

Fed. R. Civ. P. 12(b)(6) as time-barred by the applicable statute of limitations,

rejecting her argument that her new claim should relate back to her original

complaint under Fed. R. Civ. P. 15(c). “We review de novo the dismissal of an

action under Rule 12(b)(6) based on the statute of limitations.” Braxton v.

Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010); see also Garrett v. Fleming,

362 F.3d 692, 695 (10th Cir. 2004) (“We review de novo the district court’s

application of Rule 15(c) to undisputed facts, a purely legal interpretation.”

(internal quotation marks omitted)).

                                III. DISCUSSION

A. Hostile Work Environment Claim

      On appeal, Ms. Hernandez contends the district court incorrectly applied

the summary judgment standards by failing to construe evidence in the light most

                                        -11-
favorable to her as the non-moving party, and by resolving factual issues in favor

of defendants. She further contends she presented sufficient evidence of a hostile

work environment to withstand Valley View’s motion for summary judgment.

We agree.

      1.     Hostile Work Environment Requirements

      Under Title VII, it is “‘an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.’” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). “This includes

an employee’s claims of a hostile work environment based on race or national

origin discrimination.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680

(10th Cir. 2007).

      We have recognized that “Title VII does not establish a general civility

code for the workplace. Accordingly, the run-of-the-mill boorish, juvenile, or

annoying behavior that is not uncommon in American workplaces is not the stuff

of a Title VII hostile work environment claim.” Morris v. City of Colo. Springs,

666 F.3d 654, 663-64 (10th Cir. 2012) (internal quotes and citations omitted).

“To survive summary judgment on a claim alleging a racially hostile work

environment, [the plaintiff] must show that a rational jury could find that the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that

                                         -12-
is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment,” and that the victim

“was targeted for harassment because of [her] race or national origin.”

Id. (brackets and internal quotation marks omitted).

      “The applicable test for a hostile work environment has both objective and

subjective components. A dual standard asks both whether the plaintiff was

offended by the work environment and whether a reasonable person would

likewise be offended,” and both must be proved. Id. at 664 (internal quotes and

citations omitted).

      “[There] is not, and by its nature cannot be, a mathematically precise test”

for a hostile work environment claim. Harris, 510 U.S. at 22. Courts determine

whether an environment is hostile or abusive by looking at 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 23. “[T]he

severity and pervasiveness evaluation [of a hostile work environment claim] 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); E.E.O.C. v. PVNF, L.L.C.,

487 F.3d 790, 798 (10th Cir. 2007) (same).




                                         -13-
      2.     Sufficient Evidence of Hostile Work Environment

      Viewing the record as a whole and in the light most favorable to

Ms. Hernandez, we conclude that a rational jury could find that her workplace

was permeated with discriminatory intimidation, ridicule, and insult that was

sufficiently severe or pervasive to alter her conditions of employment.

      A rational factfinder could conclude that Ms. Hernandez experienced more

than a “handful” of “sporadic” racially derogatory jokes and comments.

Aplt. App. at 613. During the approximately fourteen months that Mr. Lillis

supervised her, Mr. Lillis and Mr. Stillahn repeatedly subjected her to racially

insensitive and offensive comments and jokes, including the Mexican-barbeque

comment three to five times, the Mexican-tamale comment three or four times,

and the black-Latino marriage comment at least once. In addition, Mr. Lillis

accused her family member of being a murderer based on Ms. Hernandez’s

surname, accused her family of not paying for lunch, and referred to a black

cook using a racial epithet. Ms. Hernandez promptly and frequently complained

to her supervisors about the offensiveness of the racial comments. See Herrera,

474 F.3d at 680-81 (noting plaintiff’s unheeded complaints of harassment to

employer’s human resources attorney as evidence that she was subjectively

offended).

      Ms. Hernandez marshaled sufficient evidence of both objective and

subjective offensiveness to withstand summary judgment. See Herrera, 474 F.3d

                                        -14-
at 680-81. A reasonable jury could find that Ms. Hernandez was offended by the

work environment and that a reasonable person likewise would be offended.

             a.    District Court’s Analysis

      The district court relied on Bolden, 43 F.3d at 551, in holding that

Ms. Hernandez failed to demonstrate a “steady barrage of opprobrious racial

comments.” “In Bolden, we held that only two overtly racial comments and one

arguably racial remark over the course of the plaintiff’s eight years of

employment did not constitute pervasive conduct.” Smith v. Northwest Fin.

Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997). By our count,

Ms. Hernandez presented evidence of at least a dozen racially offensive

comments and jokes over the fourteen months Mr. Lillis supervised her in food

services. 4 But “the word ‘pervasive’ is not a counting measure” and the “trier of

fact utilizes a broader contextual analysis.” Herrera, 474 F.3d at 680 n.3.




      4
        Valley View asserts that Ms. Hernandez only established “three incidents
with racial overtones that were directed toward her over a six year period.”
Aplee. Br. at 29-30. In addition to including the years before Mr. Lillis began
working at Valley View, it arrives at this lower number by parsing out the various
instances of harassment and excluding some based on its characterization of them
as racially neutral or not directed at Ms. Hernandez. As discussed further below,
such parsing ignores the “‘totality of the circumstances’ test.” PVNF, 487 F.3d
at 799; Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1262 (10th Cir.
1998) (“Our precedents . . . eschew such a mechanical approach to analyzing
hostile work environment claims.). Indeed, “the very term ‘environment’
indicates that allegedly discriminatory incidents should not be examined in
isolation.” Id.

                                        -15-
      Considering the frequency, content, and context of the derogatory

statements, we conclude that Ms. Hernandez established a genuinely disputed

issue of fact as to the pervasiveness of the harassment in her work environment.

See Smith, 129 F.3d 1415 (holding evidence of six sexually derogatory statements

over twenty-three months, some repeated frequently, sufficient to support a

finding of pervasive harassment).

      The district court, citing Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000)

(holding that vague, conclusory statements are insufficient), said that

Ms. Hernandez provided “few specifics” to support her allegations of insensitive

jokes and disparate treatment. Aplt. App. at 613. We disagree. Although

Ms. Hernandez was not always able to give precise dates, she was often able to

narrow the time frame to a particular month or time of year. She provided more

specific details than the plaintiff in Ford, who only “baldly assert[ed] he was

continuously subjected to racial slurs,” and provided no record citations to any

“content, context or date of such slurs.” 222 F.3d at 777. Ms. Hernandez

presented specific examples of her supervisors’ racial jokes, identified general

time frames, and provided the relevant content and context of these comments.

             b.    Valley View’s Arguments

      Valley View argues that many of the alleged incidents were not directed at

Ms. Hernandez. Although the record, viewed in the light most favorable to

Ms. Hernandez, indicates most of them were directed at her individually or as part

                                        -16-
of the Latino employees, we have held that derogatory comments need not be

directed at or intended to be received by the victim to be evidence of a hostile

work environment. See PVNF, 487 F.3d at 798. The “totality of the

circumstances” is “the touchstone of [a hostile work environment] analysis.”

Id. at 799; see also Harris, 510 U.S. at 23. “[E]vidence of a general work

atmosphere, including evidence of harassment of other racial minorities may be

considered in evaluating a claim, as long as [the plaintiff] presents evidence that

[she] knew about the offending behavior.” Tademy v. Union Pac. Corp., 614 F.3d

1132, 1146 (10th Cir. 2008) (brackets and internal quotation marks omitted).

      It is unclear from the record whether Ms. Hernandez heard or was aware of

the racially offensive references to the black cook. She testified, however, that

she heard all the other racially tinged comments and jokes. And, contrary to

Valley View’s assertion, the cook references are relevant to her claim whether or

not they were directed at her personally. See McCowan v. All Star Maint., Inc.,

273 F.3d 917, 925, n.10 (10th Cir. 2001) (holding that comments not directed at

plaintiff, including a supervisor who called another worker the n-word, were

relevant to the evaluation of hostile work environment claim).

      Valley View also argues that three of the incidents were not “racially

motivated” and “cannot be considered” in the hostile work environment analysis.

Aplee. Br. at 24-25. It characterizes Mr. Lillis’s accusation that Ms. Hernandez’s

son or brother was a murderer was “nothing more than general teasing”; argues

                                        -17-
that when Mr. Lillis asked Ms. Hernandez if her family paid for lunch, he might

have been motivated simply by payment concerns; and asserts that Mr. Stillahn

only “question[ed]” 5 Ms. Hernandez about the mess in the cafeteria because it was

his job to ensure cleanliness. Id. Even if these incidents could be construed as

racially neutral, Valley View’s argument fails.

      Hostile work environment “harassment must be racial or stem from racial

animus.” Tademy, 614 F.3d at 1139 (brackets and internal quotation marks

omitted). But Valley View misconstrues this circuit’s precedent in asserting these

incidents should be excluded from our analysis. We have long held that

“[f]acially neutral abusive conduct can support a finding of [racial] animus

sufficient to sustain a hostile work environment claim when that conduct is

viewed in the context of other, overtly [racially]-discriminatory conduct.”

O’Shea, 185 F.3d at 1097; Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d

1257, 1263 (10th Cir. 1998) (“Even where the motive behind the alleged conduct

was not the plaintiff’s [race or national origin], the court may still consider that

conduct relevant when evaluating whether ambiguous conduct was in fact




      5
        Valley View’s sanitized word choice falls short of conveying
Ms. Hernandez’s evidence, which is that Mr. Stillahn said the “place looked like
shit,” “was angry,” “started screaming,” “pushed the cart and kicked the door,”
and that Ms. Hernandez “was afraid” and “tried to stay away from him.”
Aplt. App. at 238.

                                         -18-
[racially]-motivated or whether [racially]-motivated conduct was so severe [or]

pervasive as to create Title VII liability.”).

      This is because what is important in a hostile environment claim is
      the environment, and [racially]-neutral harassment makes up an
      important part of the relevant work environment. Conduct that
      appears [racially]-neutral in isolation may in fact be [race]-based, but
      may appear so only when viewed in the context of other [race]-based
      behavior. Thus, when a plaintiff introduces evidence of both
      [race]-based and [race]-neutral harassment, and when a jury, viewing
      the evidence in context, reasonably could view all of the allegedly
      harassing conduct . . . as the product of [racial] hostility, then it is
      for the fact finder to decide whether such an inference should be
      drawn.

Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (citation and internal

quotation marks omitted) (holding that plaintiffs “can use a substantial amount of

arguably [racially]-neutral harassment to bolster a smaller amount of [race]-based

conduct on summary judgment”).

      Valley View’s argument that these three incidents were not based in racial

animus “should take place before a jury that will have the opportunity to evaluate

the evidence, demeanor, and candor of witnesses.” Tademy, 614 F.3d at 1146.

Ms. Hernandez testified she was upset and offended by Mr. Lillis’s accusation

that her family had not paid for lunch and that her son or brother was a murderer.

She was so afraid of Mr. Stillahn’s anger when he blamed her for the kitchen

mess that she tried to avoid him and was afraid to return. These incidents must be

viewed in context and “cannot simply be discarded . . . but must be weighed on

the side of reasonable inferences.” McCowan, 273 F.3d at 925 n.10.

                                          -19-
                                         ***

      In sum, a reasonable jury could conclude that “[Ms. Hernandez’s]

workplace [was] permeated with discriminatory intimidation, ridicule, and insult,

that [was] sufficiently severe or pervasive to alter the conditions of [her]

employment and create an abusive working environment.” Herrera, 474 F.3d

at 680 (internal quotation marks omitted).

B. Constructive Discharge Claim

      Ms. Hernandez claims she was constructively discharged as a result of the

hostile work environment combined with working conditions so unreasonable she

could not return to work in the food services department when her FMLA leave

expired. “[A] hostile-environment constructive discharge claim entails something

more [than conduct that amounts to actionable harassment]: A plaintiff who

advances such a compound claim must show working conditions so intolerable

that a reasonable person would have felt compelled to resign.” Pa. State Police v.

Suders, 542 U.S. 129, 147 (2004). Further, “an employer is strictly liable for

supervisor harassment that culminates in a tangible employment action,” and a

constructive discharge that is precipitated by an official act qualifies as a tangible

employment action. Id. at 137, 148-49 (internal quotation marks omitted).

      Ms. Hernandez bases her constructive discharge claim on Valley View’s

(1) denying her July 2007 request to be transferred to any department not under

the supervision of Mr. Lillis and Mr. Stillahn; (2) deciding to fire her the same

                                         -20-
day she reported her discrimination allegations by documenting as-yet

undocumented performance issues; (3) placing her on unpaid leave when she did

not return to work the day after her suspension and after failing to tell her it was

only a half-day suspension; (4) preventing her from working until a meeting ten

days after her suspension; and (5) presenting her, at the end of her FMLA leave,

with new, after-the-fact performance criticisms and again denying her request not

to work under the supervision of her harassing supervisors.

      The district court ruled that “[h]aving failed to produce evidence sufficient

to make out a claim of hostile work environment racial harassment,

[Ms. Hernandez] perforce cannot sustain the more onerous burden of proving a

racial or national origin discrimination claim premised on constructive

discharge.” Aplt. App. at 614. In light of our holding that Ms. Hernandez

presented sufficient evidence of a racially hostile work environment to withstand

summary judgment, and because the district court’s dismissal of her constructive

discharge claim is based on its summary judgment decision on her hostile work

environment claim, the district court’s dismissal of her constructive discharge

claim must also be reversed and remanded for further consideration.

C. Retaliation Claim

      Title VII requires a plaintiff claiming employment discrimination to file a

complaint within 90 days of receipt of a right-to-sue letter from the EEOC.

42 U.S.C. § 2000e-5(f)(1). Ms. Hernandez filed a timely complaint at the end of

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the 90-day limitations period. Five months later, she amended her complaint to

add a new claim for retaliation in violation of Title VII. The parties do not

dispute that the retaliation claim was filed well beyond § 2000e-5(f)(1)’s

deadline. Instead, Ms. Hernandez argued, in response to Valley View’s

Rule 12(b)(6) motion to dismiss, that her newly added claim related back to her

timely original complaint under Fed. R. Civ. P. 15(c).

      In limited circumstances, Rule 15(c) saves an otherwise untimely

amendment by deeming it to “relate back” to the conduct alleged in the timely

original complaint. Specifically, Rule 15(c)(1)(B) provides that an amendment

“relates back” to the date of the “original pleading” if the “amendment asserts a

claim . . . that arose out of the conduct, transaction, or occurrence set out – or

attempted to be set out – in the original pleading.” Interpreting this language,

the Supreme Court has held that relation back is improper when the amended

claim “asserts a new ground for relief supported by facts that differ in both time

and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644,

650 (2005).

      The district court ruled that Ms. Hernandez’s amended complaint did not

relate back because the retaliation claim raised new and discrete allegations that

were not pled in her original complaint. Based on our review of the original and

amended complaints, we agree. Her retaliation claim is based on factual

allegations that were new and discrete from the facts she originally pled.

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See Jones v. Bernanke, 557 F.3d 674-75 (D.C. Cir. 2009). Indeed, Ms. Hernandez

does not argue otherwise. Rather, she argues that Valley View had notice of the

new claim because she had included retaliation in her EEOC charge.

      Defendant’s notice in her EEOC complaint that she might file a retaliation

claim is unavailing because Rule 15(c)(1)(B) states that a pleading relates back

only if the new claim arose “out of the conduct, transaction, or occurrence” pled

in the original pleading. In Mayle, the Court held that “[t]he ‘original pleading’

to which Rule 15 refers is the complaint in an ordinary civil case.” 545 U.S.

at 655. Thus, Ms. Hernandez’s argument that her new claim relates back because

it was included in her EEOC charge is without merit.

                                IV. CONCLUSION

      Ms. Hernandez marshaled sufficient hostile work environment evidence to

withstand summary judgment. We therefore reverse the district court’s entry of

summary judgment on that issue and also on the issue of constructive discharge.

We affirm dismissal of Ms. Hernandez’s retaliation claim as time-barred.




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