                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  January 12, 2009
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    SHANNON CHAPMAN,

                Plaintiff-Appellant,

    v.                                                 No. 08-4043
                                               (D.C. No. 2:06-CV-00948-TS)
    CARMIKE CINEMAS,                                     (D. Utah)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.



         Shannon Chapman appeals the district court’s grant of summary judgment

in favor of her former employer, Carmike Cinemas, in her case alleging a sexually

hostile work environment and constructive discharge in violation of Title VII of

the Civil Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1291.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Considering Ms. Chapman’s first claim of a hostile work environment,

based on a sexual assault by a supervisor, we conclude that Carmike did not

adequately establish the elements of the employer’s affirmative defense to

respondeat superior liability for sexual harassment committed by a supervisor, but

that the evidence would not allow a reasonable jury to find Carmike negligent.

With regard to her second claim of a hostile work environment, based on the

sexually oriented atmosphere of the workplace generally, we conclude both that

Carmike established the elements of the affirmative defense and that the evidence

would not allow a reasonable jury to find Carmike negligent. Finally, we

conclude with regard to her constructive discharge claim that the district court did

not err in holding that she was required to amend her existing administrative

charge of discrimination or to file a new charge to preserve her claim for

litigation. Consequently, we reverse the district court’s grant of summary

judgment to Carmike on the respondeat superior aspect of the first claim, but

affirm on the second and third claims.

                                         I.

      Ms. Chapman worked as a projectionist at a Carmike Cinemas theater that

was part of a Utah entertainment complex. While she was on duty the night of

Tuesday, May 25, 2004, assistant manager Walter McFashion, whom she

considered a friend and a father-figure, approached her in the projectionist booth.




                                         -2-
He then forcibly led her down the hall to another room, where he sexually

assaulted her.

      Immediately after the assault and visibly upset, Ms. Chapman contacted the

theater’s security guard, who in turn contacted the complex’s general manager,

Larry Curry. Mr. Curry had a female manager sit with Ms. Chapman until she

calmed down and had her write a statement about the assault. He told her that for

the next few days (until Carmike’s city manager, Scott Dunaway, returned from

out of town) she would be on paid leave for shifts that coincided with

Mr. McFashion’s shifts. Mr. Curry also told her that they would investigate and

handle the matter, giving Ms. Chapman the impression that she was not to call the

police. Ms. Chapman worked on Thursday (when Mr. McFashion was not

scheduled), with her supervisor and an assistant manager staying with her and a

security guard checking in. She was allowed time off for the weekend, and on

Monday, she filed a police report regarding the assault.

      When Mr. Dunaway returned that week, he met with Ms. Chapman,

Mr. Curry, and the female manager who had been present on May 25.

Ms. Chapman told Mr. Dunaway what had happened and gave him a copy of the

police report. Mr. Curry gave him the statement she had written the night of the

assault. Mr. Dunaway assured Ms. Chapman that she would not have to see

Mr. McFashion again. He also informed her that she would be allowed to have a

security guard with her when she was closing.

                                         -3-
      Mr. McFashion did not return to the theater after the Saturday following the

assault. First he was on leave, apparently at his own request, and then he was on

suspension pending Carmike’s investigation. It took Mr. Dunaway several weeks

to arrange a meeting with Mr. McFashion. When he did so and heard

Mr. McFashion’s side of the story, he immediately terminated Mr. McFashion’s

employment with Carmike. Mr. McFashion later pleaded guilty to three counts of

misdemeanor sexual battery and served time in jail. Ms. Chapman admits that she

never saw Mr. McFashion at the theater after May 25.

      Ms. Chapman continued to work at Carmike for almost a year after the

assault. She alleges that during this time, despite Carmike’s anti-harassment

policy, the atmosphere at Carmike was hostile due to constant sexually-oriented

conversations, comments, and jokes by managers and employees. On October 7,

2004, she filed a formal charge of discrimination with the Utah

Anti-Discrimination and Labor Division, complaining of Mr. McFashion’s assault

and the atmosphere at Carmike after the assault. Finally, on May 5, 2005,

Ms. Chapman quit her employment. She alleges that she was forced to quit

because she could not overcome her fears for her safety and ultimately she could

not bear returning to work. She did not amend her charge of discrimination to

allege constructive discharge.

      Ms. Chapman received her right-to-sue letter and brought suit against

Carmike. Her complaint set forth three claims: (1) a sexually hostile work

                                        -4-
environment due to Mr. McFashion’s assault; (2) a sexually hostile work

environment due to pervasive sexual comments, jokes, and conversations; and

(3) constructive discharge. The district court granted summary judgment to

Carmike on all three claims.

      With regard to the claim about the assault, the district court granted

summary judgment for Carmike, holding that Ms. Chapman did not assert that

Mr. McFashion was her supervisor and that she did not complain about him prior

to the assault, with the exception of the “proposition statement” that she reported

to the theater general manager. Aplt. App. at 1324. The court noted that she

viewed him as a “father figure” and “they were friends.” Id. The court also held

that the “single statement” that she reported to the theater general manager “could

not have been construed as a complaint of sexual harassment” and therefore

Carmike was not on notice of any danger from Mr. McFashion. Id. at 1325.

Finally, the court held that Carmike responded reasonably to end the harassment

when she reported the assault by investigating the incident and terminating

Mr. McFashion’s employment.

      With regard to the second claim, which alleged a sexually pervasive

atmosphere due to managers’ and co-workers’ constant sexual jokes,

conversations, and comments, the district court again granted summary judgment

for Carmike, concluding that much of the proffered evidence related to the

pre-assault period and thus was not relevant to the claim, which concerned only

                                         -5-
the post-assault period. The court also found that Ms. Chapman’s relevant

evidence was unspecific. It noted that she did not complain to upper management

about the few incidents that she did specifically identify. Finally, given the

record evidence that she participated in sexual conversations and banter while at

work, the district court held that she did not establish the subjective hostility of

the environment. In considering this evidence, the district court declined to

determine before granting summary judgment whether the evidence was

admissible under Federal Rule of Civil Procedure 412.

      Finally, with regard to the third claim, which alleged that Ms. Chapman

was constructively discharged, the district court granted summary judgment for

Carmike, holding that the claim was procedurally barred because she failed to

amend her charge of discrimination to include it. Thus, it was not

administratively exhausted and not preserved for litigation.

      Ms. Chapman appeals the grant of summary judgment with respect to each

of her three claims.

                                          II.

      “We review a grant of summary judgment de novo[,] . . . consider[ing] the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment.” MacKenzie v. City & County of Denver,

414 F.3d 1266, 1273 (10th Cir. 2005) (quotations omitted). Summary judgment is

appropriate when “the pleadings, the discovery and disclosure materials on file,

                                          -6-
and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Of course, “we remain free to affirm a district court decision on any grounds

for which there is a record sufficient to permit conclusions of law, even

grounds not relied upon by the district court.” MacKenzie, 414 F.3d at 1273

(quotation omitted).

                                         A.

      Ms. Chapman’s first claim alleged a sexually hostile work environment due

to the assault. Ms. Chapman argues that the district court erred in granting

summary judgment to Carmike because the assault established the existence of a

severe, pervasive hostile work environment caused by a supervisor for which

Carmike is liable under Title VII either indirectly through principles of employer

respondeat superior liability or directly because of its own negligence.

      To establish that a hostile work environment exists in resisting summary

judgment, a plaintiff must present evidence from which a jury could reasonably

conclude that “(1) she is a member of a protected group; (2) she was subject to

unwelcome harassment; (3) the harassment was based on sex; and (4) due to the

harassment’s severity or pervasiveness, the harassment altered a term, condition,

or privilege of the plaintiff’s employment and created an abusive working

environment.” Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)

(alteration and quotation omitted). For purposes of this appeal, we accept that a

                                         -7-
reasonable jury could find each of these elements are established for this claim.

See Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243-44 (10th Cir. 2001)

(concluding, in case in which the plaintiff was sexually assaulted by her patient,

that jury’s finding of sexually hostile work environment was not unreasonable);

Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1024 n.5 (10th Cir. 2001) (noting

that it is an arguable position that even one sexual assault would suffice to create

a hostile work environment, but declining to decide the question); Lockard v.

Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (holding that a single

incident of physically threatening and humiliating conduct can be sufficient to

create a hostile work environment for a sexual harassment claim).

      In addition to establishing the hostile work environment elements, the

plaintiff must also identify a basis for holding the employer liable under Title VII.

Harsco Corp., 475 F.3d at 1186. Potential bases for liability include respondeat

superior liability, see Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765

(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), or employer

negligence, see Ellerth, 524 U.S. at 759; Harsco Corp., 475 F.3d at 1186.

               Respondeat Superior Liability - Ellerth and Faragher

      The Supreme Court has held that “[a]n employer is subject to vicarious

liability to a victimized employee for an actionable hostile work environment

created by a supervisor with immediate (or successively higher) authority over the

employee.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

                                          -8-
      The first question in determining whether Carmike may be subject to

respondeat superior liability for the assault is whether Mr. McFashion was “a

supervisor with immediate (or successively higher) authority” over Ms. Chapman.

It is clear that he was not Ms. Chapman’s direct supervisor – she was a

projectionist, and her direct supervisor was the head projectionist. Further, the

record contains some indications that projectionist was a management position.

But there also is some evidence in the record that assistant managers were in

charge when the managers were off, and that they had authority to set schedules,

to discipline, and to recommend termination for employees not directly within

their command structure. Taking all inferences in favor of Ms. Chapman, for

purposes of this analysis we hold that a reasonable jury could find that

Mr. McFashion was a supervisor with authority over Ms. Chapman.

      Ellerth and Faragher established an affirmative defense for employers who

would otherwise be subject to respondeat superior liability for harassment by a

supervisor. When the employee is not subject to a “tangible employment action,”

the employer may establish the defense by proving two elements: “(a) that the

employer exercised reasonable care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

“Tangible employment actions are the means by which the supervisor brings the

                                         -9-
official power of the enterprise to bear on subordinates. A tangible employment

decision requires an official act of the enterprise, a company act.” Ellerth,

524 U.S. at 762. Examples of tangible employment actions include “hiring,

firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.”

Id. at 761.

      Ms. Chapman alleges that she quit her employment because after the

assault she feared for her safety and ultimately she reached a point where she

could no longer bear coming to work. She characterizes her departure as a

constructive discharge and argues that it constitutes a tangible employment

action, making the Ellerth/Faragher defense unavailable to Carmike. The

Supreme Court has determined, though, that when “an official act does not

underlie the constructive discharge,” the employer may invoke the

Ellerth/Faragher affirmative defense. Penn. State Police v. Suders, 542 U.S. 129,

148 (2004). Carmike may invoke the defense because Ms. Chapman attributes her

resignation to her psychological state, in turn attributed to the assault, rather than

to an official act by Carmike.

      We conclude that because Carmike showed that it promulgated,

disseminated, and conducted training on an anti-harassment policy, it established

the first element of the defense, which requires the employer to present evidence

that it “exercised reasonable care to prevent and correct promptly any sexually

                                          -10-
harassing behavior.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. We

need not discuss this element in detail, however, because Carmike has failed to

establish the defense’s second element, that Ms. Chapman “unreasonably failed to

take advantage of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765; Faragher,

524 U.S. at 807. Unlike in Ellerth and Faragher, the assault on Ms. Chapman

was an unforeseeable, one-time incident. In these circumstances, there do not

appear to be preventive measures that she could have taken. But she did not fail

to avail herself of her corrective opportunity. Instead, she did the opposite – she

immediately reported the assault to Carmike through appropriate channels.

      The district court granted summary judgment to Carmike even though it

failed to show the second prong of the defense. In similar circumstances, the

Eighth Circuit refused to require an employer to prove the second prong,

concluding that “[s]trict adherence to the Supreme Court’s two-prong affirmative

defense in this case is like trying to fit a square peg into a round hole,” McCurdy

v. Ark. State Police, 375 F.3d 762, 771 (8th Cir. 2004). Like Ms. Chapman’s

case, McCurdy involved a single incident of harassment, a prompt reporting by

the victim, and an effective response by the employer. See id. at 764-65, 770-71.

The Eighth Circuit determined that it would “critically ask whether Title VII

envisions strict employer liability for a supervisor’s single incident of sexual

harassment when the employer takes swift and effective action to insulate the

                                         -11-
complaining employee from further harassment the moment the employer learns

about the harassing conduct.” Id. at 771.

      We conclude the Supreme Court, in crafting the Ellerth/Faragher
      affirmative defense, did not change course in sexual harassment
      jurisprudence by holding employers strictly liable for single incidents
      of supervisor sexual harassment. Therefore, we hold the [employer]
      is entitled to a modified Ellerth/Faragher affirmative defense,
      despite the [employer’s] inability to prove the second element.

Id. at 772. Accordingly, the Eighth Circuit affirmed a grant of summary

judgment for the employer. Id. at 774.

      The parties in this case, however, did not cite McCurdy or argue that we

should (or should not) adopt its approach. Accordingly, we decline to address

whether this court should adopt the McCurdy modification to the

Ellerth/Faragher affirmative defense in a single-incident situation where the

employer had an effective policy in place and took effective measures to punish

and stop the offensive conduct by a supervisor once it was reported by the

victimized employee. Thus, in this case, we continue to require that the employer

prove the employee did not promptly report the single-incident offense before the

employer may avail itself of the Ellerth/Faragher defense.

      Because Ms. Chapman presented evidence that she promptly availed herself

of her corrective opportunities by immediately reporting the assault, Carmike

failed to establish the second element of the Ellerth/Faragher affirmative defense.

Consequently, it was not entitled to summary judgment on Ms. Chapman’s theory


                                         -12-
of respondeat superior liability for the sexual assault, and this claim must be

remanded for further proceedings.

                            Direct Liability - Negligence

      Ms. Chapman also complains that Carmike is liable for Mr. McFashion’s

single-incident assault on her because of its own negligence. In Ellerth, the

Supreme Court recognized that “although a supervisor’s sexual harassment is

outside the scope of employment because the conduct was for personal motives,

an employer can be liable, nonetheless, where its own negligence is a cause of the

harassment.” 524 U.S. at 759. “An employer is negligent with respect to sexual

harassment if it knew or should have known about the conduct and failed to stop

it.” Id.; see also Harsco Corp., 475 F.3d at 1186 (“Under this theory, [plaintiff]

was required to prove . . . that [employer] had actual or constructive knowledge

of the hostile work environment but did not adequately respond to notice of the

harassment.”). It is Ms. Chapman’s burden to show that Carmike acted

unreasonably. Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001).

“Thus, the focus is not on whether the employer is liable for the bad acts of

others, but whether the employer itself is responsible for failing to intervene.” Id.

      Ms. Chapman avers that the theater environment was rife with sexual

innuendo. She particularly points out that a couple of weeks before the assault,

she and Mr. McFashion were talking. She told him that she was having problems

with her boyfriend, and that if they broke up she was done with guys for awhile.

                                         -13-
In response, Mr. McFashion stated, “if you and Brad ever break up, me and you

are going to fuck.” Aplt. App. at 516. Later that evening he repeated the remark.

She states that she reported the remarks to the head projectionist, to an assistant

manager, and to the theater general manager, but the general manager responded,

“that’s just the way Walter is” and took no further action. Id. Both the head

projectionist and general manager testified that they did not recall Ms. Chapman

reporting the remarks, and there is no evidence from the assistant manager.

      Viewing all facts in favor of Ms. Chapman, we assume that Mr. McFashion

made the remarks and Ms. Chapman reported them. But Carmike’s inaction was

not negligence with respect to the assault. Ms. Chapman admitted that it was the

first time Mr. McFashion had said anything to her that made her feel

uncomfortable. These isolated remarks would not in and of themselves have

established a sexually hostile work environment. See Faragher, 524 U.S. at 788

(noting that Title VII is not a “general civility code” and stating that “sporadic

use of abusive language, gender-related jokes, and occasional teasing” are among

“the ordinary tribulations of the workplace” (quotations omitted)). There was

nothing in those remarks to suggest that Mr. McFashion was threatening

non-consensual sexual conduct. Had those remarks persisted or had they not been

so isolated, we might conclude that Ms. Chapman had established enough

evidence to defeat a summary judgment motion on this incident of sexual assault.

But, on the record before us, we conclude that the character of the remarks was

                                         -14-
not such that they would or should have put management on notice that

Mr. McFashion would sexually assault Ms. Chapman. Carmike was entitled to

summary judgment on Ms. Chapman’s negligence theory.

      For these reasons, the district court erred in granting summary judgment to

Carmike on Ms. Chapman’s respondeat superior liability theory, but not her

negligence theory.

                                         B.

      For her second claim, Ms. Chapman alleged a sexually hostile work

environment based on constant sexual jokes, comments, and conversations at

Carmike after the assault. 1 Ms. Chapman argues that the district court improperly

considered evidence of her other sexual conduct that should have been screened

under Rule 412 before being considered on summary judgment. She contends that

the theater’s environment was hostile and Carmike should be liable under

principles of respondeat superior liability and/or negligence.

      We assume without deciding for purposes of this analysis that

Ms. Chapman’s post-assault allegations adequately establish the existence of a

hostile work environment. Accordingly, we need not address whether the

environment was objectively or subjectively hostile, and we need not address her


1
      Although much of the evidence before the district court concerned the
environment at the theater pre-assault, Ms. Chapman’s claim was limited to the
post-assault environment because her administrative charge discussed only the
assault and the post-assault conditions.

                                        -15-
Rule 412 arguments. 2 Instead, summary judgment on this claim can be affirmed

as to vicarious liability on the basis of Carmike’s Ellerth/Faragher defense and as

to negligence because Ms. Chapman failed to present evidence of Carmike’s

actual or constructive knowledge.

               Respondeat Superior Liability - Ellerth and Faragher

      Ms. Chapman alleges that the offensive post-assault atmosphere was caused

by the theater general manager, assistant managers, and other employees.

Because the theater general manager unquestionably was a supervisor with

authority over Ms. Chapman, Carmike may be subject to respondeat superior

liability for a sexually hostile work environment due to pervasive jokes,

comments, and conversations, subject to the application of the Ellerth/Faragher

defense. As discussed above, even though Ms. Chapman alleges constructive



2
       Citing 23 Charles A. Wright and Kenneth W. Graham, Jr., Federal Practice
and Procedure: Evidence, § 5391.1 (1998 Supp.), Carmike argues that Rule 412
applies only at trial, not in summary judgment proceedings. Wright and Graham
cites no authority for this proposition, and at least two courts disagree. See Davis
v. DeKalb County Sch. Dist., 233 F.3d 1367, 1374 n.13 (11th Cir. 2000) (per
curiam) (noting that the district court erred in considering evidence, on summary
judgment, that the circuit court held would be inadmissible under Fed. R. Evid.
412(b)(2)); Dunegan v. City of Council Grove, 189 F.R.D. 649, 652 (D. Kan.
1999) (“[W]e do believe that the requirements of Rule 412 must be applied to
summary judgment proceedings.”). Considering the well-established rule that
summary judgment must rest only on admissible evidence, see Wright-Simmons v.
City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998), and that evidence
subject to Rule 412 is not admissible until declared so under the terms of the rule,
we see no reason why Rule 412 should not be applied in summary judgment
proceedings, but that issue need not be resolved in this appeal so we leave it open.

                                        -16-
discharge as a tangible employment action, the defense remains available to

Carmike because no official act led to her resignation. Suders, 542 U.S. at 148.

      Regarding the first element of the defense, we consider the employer’s

sexual harassment policy dissemination and enforcement. Ellerth, 524 U.S. at

765; Faragher, 524 U.S. at 807. Carmike produced evidence that it adopted an

anti-harassment policy that prohibited “[v]erbal abuse of a sexual nature,

including sexual flirtations, advances, propositions, innuendoes, or sexually

suggestive comments” and “[s]exually explicit, suggestive, or offensive jokes.”

Aplt. App. at 417. The policy was written in an employee handbook and

displayed, in more general terms, on a poster at Carmike. The poster instructed:

             Any employee who has a complaint of sexual harassment at
      work by anyone, including supervisors and co-workers, must bring
      the problem to the attention of responsible Company officials.
      Employees may bring their complaint to their Division Manager or
      the General Manager by calling [toll free numbers] or writing
      [company address].

Id. at 571. While Ms. Chapman disputed whether she ever received a copy of the

handbook, she admitted that the policy was posted at Carmike, that she was aware

of Carmike’s employee hotline for reporting complaints, and that during her

employment she attended a meeting at which Mr. Dunaway discussed Carmike’s

policy. We conclude that the policy and its dissemination generally evidence

appropriate efforts by Carmike to prevent sexual harassment.




                                        -17-
      Ms. Chapman complains that Carmike’s anti-harassment policy was not

effective or enforced, as evidenced by the sheer number of violations. But there

is no indication in the record that any management other than the harassers knew

about the objectionable conduct, such that the company would have the

opportunity to enforce the policy. Ms. Chapman told the managers at the theater

that she thought their conduct was inappropriate, but the theater manager was part

of the problem condoning the sexually abusive atmosphere. Ms. Chapman admits

that she did not call Carmike’s toll-free telephone number or write the company

regarding the conduct to complain to the off-site personnel made available to her.

Further, the record indicates that the theater general manager was supervised by

the complex general manager, Mr. Curry, who was supervised by the city

manager, Mr. Dunaway. Apparently Ms. Chapman also did not complain to either

Mr. Curry or Mr. Dunaway, although there does not appear to be any reason why

she could not have done so. 3

      Ms. Chapman failed to avail herself of her preventive and corrective

opportunities when she complained only to people who were complicit in the

hostile environment. She could have contacted the Division Manager or General

Manager as provided in the anti-harassment policy, or she could have contacted

local upper management. It was not reasonable for her to complain to the

3
      As city manager, Mr. Dunaway oversaw three locations, but the record
indicates that he usually worked thirty hours per week at the complex where
Ms. Chapman worked.

                                        -18-
offending managers but take no further action to have Carmike end the

objectionable conduct. An employer’s demonstration of an employee’s

unreasonable failure to use a complaint procedure “will normally suffice to satisfy

the employer’s burden under the second element of the defense.” Ellerth,

524 U.S. at 765; Faragher, 524 U.S. at 807-08; see also Faragher, 524 U.S.

at 807 (“If the victim could have avoided harm, no liability should be found

against the employer who had taken reasonable care, and if damages could

reasonably have been mitigated no award against a liable employer should reward

a plaintiff for what her own efforts could have avoided.”). Accordingly, Carmike

has established the second element of the Ellerth/Faragher defense and was

entitled to summary judgment on the issue of its respondeat superior liability.

                           Direct Liability - Negligence

      Ms. Chapman also contends that Carmike knew or should have known

about the jokes, sexual comments, and conversations and negligently failed to put

a stop to them. To avoid summary judgment, she must present evidence that

would allow a reasonable jury to find that Carmike “had actual or constructive

knowledge of the hostile work environment but did not adequately respond to

notice of the harassment.” Harsco Corp., 475 F.3d at 1186.

      Ms. Chapman alleges that she reported the harassment to mid-management-

level employees by informing the theater general manager and assistant managers

that their conduct was inappropriate. But these management-level employees

                                        -19-
were the alleged harassers. Their knowledge should not be imputed to Carmike.

See Restatement (Third) of Agency §§ 5.02(1), 5.03(a), 5.04. Ms. Chapman

admits that she did not report the conduct to any local higher-level management

employees or to Carmike through its toll-free numbers or company address.

Further, the conduct does not appear to be such that local upper management

should have become aware of it in the course of performing their duties. We

conclude that Carmike did not have actual or constructive knowledge of the

harassing environment. Consequently, Ms. Chapman’s negligence theory fails.

      For these reasons, the district court did not err in granting summary

judgment to Carmike on Ms. Chapman’s second claim.

                                          C.

      Ms. Chapman’s third claim alleged constructive discharge. She argues that

the district court erred in determining the claim was procedurally barred, because

she argues that “[i]f an unexhausted ensuing claim is ‘reasonably related’ to an

exhausted claim, the district court should consider it.” Aplt. Br. at 22.

       The “reasonable relation” theory is no longer good law in cases involving

discrete, easily identifiable incidents such as “‘termination, failure to promote,

denial of transfer, or refusal to hire,’” each of which “‘constitutes a separate

actionable unlawful employment practice.’” Martinez v. Potter, 347 F.3d 1208,

1210 (10th Cir. 2003) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 110-14 (2002)). A plaintiff must timely file an administrative charge in

                                         -20-
order to preserve a claim based on a “discrete discriminatory act[].” Morgan,

536 U.S. at 113. We recognize that a constructive discharge may be akin to a

hostile environment claim in that a constructive discharge theory generally rests

on a series of discriminatory events and incidents. But when the constructive

discharge is complete – i.e., when the employee resigns – the discharge is most

akin to a wrongful discharge by the employer, which is a discrete and identifiable

act. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998)

(“Constructive discharge is, indeed, just one form of wrongful discharge.”);

Young v. Nat’l Ctr. for Health Servs. Research, 828 F.2d 235, 238 (4th Cir. 1987)

(characterizing a constructive discharge as “a distinct discriminatory act for

which there is a distinct cause of action”). Accordingly, we conclude that a claim

of constructive discharge requires filing an administrative charge. See Butler v.

Potter, 345 F. Supp. 2d 844, 853 (E.D. Tenn. 2004).

      Ms. Chapman appears to concede that Martinez controls here, as she urges

the court to overrule it. Aplt. Reply Br. at 3. One panel generally may not

overrule the decision of another panel. United States v. Mitchell, 518 F.3d 740,

752 n.14 (10th Cir. 2008).

      Because Ms. Chapman did not exhaust her administrative remedies, the

district court did not err in granting summary judgment to Carmike on her claim

for constructive discharge.




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                                         III.

      The judgment of the district court is AFFIRMED in part and REVERSED

in part. Summary judgment for Carmike on Ms. Chapman’s first claim of a

hostile work environment, so far as it involves her respondeat superior liability

theory of employer liability for the assault, is REVERSED and REMANDED to

the district court for further proceedings. Summary judgment for Carmike on all

other claims is AFFIRMED.


                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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