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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10014
________________________
D.C. Docket No. 8:16-cv-02419-CEH-AEP
ERIN TONKYRO,
DANA STRAUSER,
KARA MITCHELL-DAVIS,
YENNY HERNANDEZ,
Plaintiffs – Appellants,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant – Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 24, 2021)
Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.
TJOFLAT, Circuit Judge:
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This appeal arises from a Title VII action filed by four ultrasound
technologists at the James A. Haley VA Healthcare System (“Tampa VA”) against
the Secretary of the Department of Veterans Affairs (“the Secretary”). All
Plaintiffs allege that their supervisors and coworkers retaliated against them and
subjected them to a hostile work environment because they engaged in protected
Equal Employment Opportunity Commission (“EEOC”) activity. One Plaintiff
also alleges that she was subjected to a hostile work environment based on her sex.
Plaintiffs appeal from the District Court’s grant of summary judgment in favor of
the Secretary. We partially affirm and partially vacate the District Court’s decision
with instructions on remand.
I.
In 2012, Plaintiffs Erin Tonkyro, Kara Davis, and Dana Strauser filed EEOC
complaints alleging that they were sexually harassed by supervisors and
radiologists at the Tampa VA. Specifically, Plaintiffs alleged that they were
harassed by John Bennett, Chief Radiology Technologist and Plaintiffs’ second
line supervisor1; Dr. Joseph Parise, Assistant Chief of Radiology; and that Jeri
Graham, Plaintiffs’ former direct supervisor and current second-line supervisor,
aided and abetted the harassment. An Administrative Investigation Board (AIB)
1
In 2013, Bennett became the Administrative Officer of Radiology and ceased
supervising Plaintiffs. See Appendix.
2
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was formed to investigate the complaints, and Plaintiff Yenny Hernandez testified
in support of the other three Plaintiffs. The complaints were eventually settled
with the VA in September 2013.
Under the terms of the Settlement Agreements, Plaintiffs waived all
potential actions “which were raised or could have been raised” in the 2012 EEOC
complaints, as well as “future causes of action against the [VA] based on such
actions in existence” at the time of the settlements. Among other things, the
Settlement Agreements required the VA to “conduct a fact finding based on the
[sexual harassment] allegations,” “issue a letter of instruction” to Bennett, Parise,
and Graham “to refrain from making any allegedly defamatory or gender based
stereotype derogatory remarks in the workplace regarding [Plaintiffs],” to expunge
certain records from Plaintiffs’ personnel files,2 and to pay Plaintiffs a sum of
damages. The Settlement Agreements also stated: “All promises, conduct and
statements made in the course of the settlement session are confidential and will
not be disclosed voluntarily to anyone except to those required in order to approve
the terms of this Agreement or to carry out its terms, to the extent permitted by
law.”
2
Paragraph 3.b of the Settlement Agreements required the VA “[t]o expunge from the
Complainant’s Official Personnel File the written counseling dated February 15, 2013.” The
“written counseling” referred to an incident in which Eubanks gave Davis and Strauser written
warnings for being absent from the ultrasound duty station without permission.
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In July 2014, Tonkyro, Davis, and Strauser filed formal EEOC complaints
alleging retaliation for their previous EEOC complaints and 2013 settlements.
Hernandez filed a formal EEOC complaint in September 2016 alleging sexual
harassment and retaliation for her participation in the 2012 EEOC proceedings.
On August 23, 2016, Plaintiffs filed the present action against the Secretary.
Plaintiffs alleged that their supervisors and coworkers retaliated against them
because of their EEOC complaints and settlements, and created a hostile work
environment in violation of 42 U.S.C. § 2000e et seq.. Hernandez also alleged that
she was subjected to a hostile work environment based on her sex. We summarize
these allegations below, first discussing the allegations common to all Plaintiffs,
then the allegations relating to each particular Plaintiff.
A.
All Plaintiffs complain that they were denied opportunities for advancement,
that management intentionally understaffed and mismanaged the radiology
department, that private information relating to Plaintiffs’ EEOC activity was
published on a hard drive accessible to VA employees, and that VA employees
spread rumors and made disparaging comments about Plaintiffs and their EEOC
activity. The details of these allegations are as follows.
Regarding opportunities for advancement, Plaintiffs complain of a pattern
where management advertised open positions and occasionally even encouraged
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Plaintiffs to apply for them, only to cancel the positions, leave them unfilled, or
attach requirements to the positions that Plaintiffs did not meet. Plaintiffs point to
five separate occasions.
In September 2013, Dr. Stephen Stenzler, Chief of Radiology Services and
Plaintiffs’ third-line supervisor, told Tonkyro that she should apply for an
MRI/Ultrasound Supervisor opening. However, Stenzler later told Tonkyro that
she would not be selected for the position because Medical Center Director
Kathleen Fogarty wanted to fill the position with someone from outside the VA.
On January 9, 2014, the Tampa VA again posted an opening for an
MRI/Ultrasound Supervisor position. However, the VA limited applications only
to those with a particular professional license that Plaintiffs did not possess.
On January 26, 2015, Scott Petrillo, Plaintiffs’ first-line supervisor,
announced that there would be an opening for an Ultrasound Supervisor position.
The VA never actually posted the position, however, deciding instead to allocate
funds for a different position.
In March 2016, Petrillo announced an opening for a Lead Ultrasound
Technician in the newly opened Primary Care Annex (“PCA”). Tonkyro wanted
the position, but it, too, was cancelled because management decided to create a
lead mammography position instead.
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Finally, in April 2016, Davis applied for an Ultrasound Supervisor position.
However, Davis’s application was put on hold indefinitely when Angela Geraci, an
ultrasound technologist, filed a bullying complaint against her. Plaintiffs allege
that the bullying complaint and AIB investigation that followed were part of a
conspiracy between Geraci and management to prevent Davis from obtaining the
Ultrasound Supervisor position.
Next, Plaintiffs allege that management intentionally understaffed and
mismanaged the radiology department. Plaintiffs point to two separate incidents.
First, Plaintiffs point to the hiring of Geraci. Stenzler hired Geraci on August 24,
2015, notwithstanding that she had no prior ultrasound experience and that a hiring
panel (of which Davis was a member) had deemed her unqualified. Plaintiffs
allege that Geraci’s incompetence increased their workload, that management
treated Geraci more favorably than they treated Plaintiffs, and that Geraci spread
rumors about Plaintiffs’ EEOC settlements and otherwise bullied Plaintiffs.
Second, Plaintiffs allege that management has allowed black mold to infest the
ultrasound department since February 2015, even though Plaintiffs have
complained several times.
Plaintiffs allege that their private information was made public as an act of
retaliation for their EEOC activity. On February 13, 2014, Plaintiffs learned that
private employee information was being stored in a folder on a computer hard
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drive (the “S-Drive”) that was accessible to all radiology department employees.
The private information included various documents relating to MRI, CT, and
ultrasound employees generally. The information relating to Plaintiffs in particular
included: documents pertaining to Plaintiffs’ EEOC complaints; emails in
connection with an incident where Davis claimed she had no time to attend a
mandatory life-support training; emails in connection with an incident where Davis
told a patient that his ultrasound scan revealed “something” that was “not good”;
and emails, notes, memoranda, and written warnings in connection with an
incident where Davis and Strauser left the ultrasound duty station without
permission.3 The written warnings in connection with the latter incident were
supposed to have been expunged from Davis and Strauser’s personnel records
under the terms of their 2013 Settlement Agreements. See supra n.2.
An employee accessing the S-Drive between November 15th, 2013, when
the folder was uploaded, and February 19, 2014, roughly when it was removed,
could learn that Plaintiffs had filed retaliation complaints, as well as the factual
bases for those complaints. The employee could not learn, though, that the VA had
settled Plaintiffs’ 2012 sexual harassment complaints, much less the terms of
Plaintiffs’ Settlement Agreements.
3
The only document on the S-Drive pertaining to Hernandez was an email from
Hernandez to hospital staff explaining that she had sent a patient the wrong ultrasound images.
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Finally, Plaintiffs allege that VA employees spread rumors and made
disparaging comments about Plaintiffs and their EEOC activity. According to
Plaintiffs, these rumors and comments ruined their professional reputations and
created the general impression that Plaintiffs were troublemakers who caused
problems for the radiology department.
B.
In addition to the allegations common to all Plaintiffs, Tonkyro complains of
the following. On August 23, 2013, while Tonkyro was helping a patient, Bennett
walked slowly past her and glared. On March 23, 2014, Parise entered Tonkyro’s
work area and glared at her. On September 15, 2014, after Tonkyro transferred
from the main Tampa VA hospital to the PCA, Bennett intentionally deprived her
of the equipment she needed to perform her job.
C.
In addition to the allegations common to all Plaintiffs, Strauser complains of
the following. In February 2014, Graham interrupted Strauser during training and
questioned her about a patient who was unhappy with the state of the hospital
bathrooms. On March 18, 2014, Parise glared at Strauser and shook his head. In
May 2016, Stenzler hired Strauser’s ex-husband, Dr. Adam Green, to be a
radiologist at the Tampa VA even though Strauser said it would be difficult for her
to work with him.
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D.
In addition to the allegations common to all Plaintiffs, Davis complains of
the following.
When Davis was promoted to Lead Ultrasound Technologist on February
28, 2014, she had to wait until May to receive her formal promotion and
corresponding pay increase.
On March 25, 2014, Parise entered the ultrasound department
unaccompanied, even though this violated a previous agreement between Plaintiffs
and management. The next day, Parise again entered the ultrasound department
and glared at Davis. Between August 2013 and March 2014, Bennett would glare
at Davis whenever the two were in close proximity.
On August 1, 2014, management denied Davis’s request for a compressed
work schedule even though it had approved such schedules for other ultrasound
technologists in the department.
On April 25, 2014, Davis took extended leave due to a work-related injury.
Management initially informed Davis that she would not be permitted to return to
work at the Tampa VA, but would instead be assigned to the PCA. Davis then told
management that she felt she was being retaliated against for her EEOC
complaints. The human resources department then informed Davis that
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management had had a “change of heart,” and that she would be permitted to
return to the Tampa VA after all. Davis returned on February 17, 2015.
Upon returning to work at the Tampa VA, Petrillo treated Davis differently
from how he treated other ultrasound technologists. Specifically, Petrillo
maintained a physical distance from Davis that made it difficult for Davis to
discuss patients with him. He also kept the door open when he met with Davis,
although he closed the door when meeting with other technologists.
E.
In addition to the allegations common to all Plaintiffs, Hernandez complains
of the following.
On August 27, 2015, Geraci told Hernandez that her breasts were size
double D, and pulled up her blouse to show Hernandez the outline of her breasts
through her undershirt. A few days later, Geraci—during a conversation with
Hernandez about transvaginal ultrasounds—asked Hernandez “Why don’t you just
let me borrow your vagina?” On September 3, 2015, Geraci approached
Hernandez and asked “Is the vagina here?,” and made a gesture of inserting
something into her vagina. Hernandez reported Geraci’s behavior to Petrillo.
Petrillo conducted a fact finding and gave both Geraci and Hernandez a verbal
warning.
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On September 10, 2015, Geraci stated that she enjoyed working at the
Tampa VA, but could not stand the fact that she had to work with “dirty vaginas.”
On September 18, 2015, Geraci gave Hernandez “an angry, hostile look.” On
September 21, 2015, Geraci refused to speak with Hernandez when Hernandez
approached her about a patient.
At some time in October 2015, Geraci gave Hernandez a high five and
“chest bumped” her. On multiple occasions in October and November 2015,
Hernandez saw Geraci scan her own abdomen with an ultrasound transducer. In
November 2015, Geraci told Hernandez, in a “condescending and hostile” tone, to
use Hernandez’s own assigned room. In December 2015, Geraci referred to a
radiology resident as “Dark Chocolate” and described “all the things she would
do” to attract him.
In December 2015 and January 2016, Geraci gave Hernandez “dirty looks,”
made disparaging remarks about Hernandez’s eating disorder, and told Hernandez
“Oh my God, you are obsessed over the stupidest shit ever.” On multiple
occasions, Geraci gave Hernandez disgusted looks while Hernandez was eating,
and, on one occasion, said “I can’t believe you’re going to eat all that.”
In January 2016, Geraci embraced Hernandez and kissed her on the cheek
after she told Geraci that her patient had cancelled an appointment. On another
occasion, Geraci caused Hernandez to be late for an appointment with a patient
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because Geraci took 50 minutes to perform an ultrasound that should have taken 30
minutes.
In February 2016, Geraci entered a room in which Hernandez was
performing an ultrasound and demanded that Hernandez leave the room. On
February 17, 2016, while Geraci was chaperoning Hernandez for a transvaginal
ultrasound, Geraci interrupted Hernandez and told her to “hurry up.” On February
19, 2016, Geraci told Hernandez, in an angry tone, that it was her responsibility to
close the examination rooms when she was done. That same day, Geraci asked
Hernandez, “in a condescending and angry tone,” whether she completed her
outpatient requests. Hernandez reported these incidents to Petrillo, but Petrillo
took no action.
In March 2016, Hernandez observed Geraci embrace Brent Burton, a male
ultrasound technologist, in an inappropriate manner. Hernandez also observed
Geraci sit on Burton’s lap and wrap her arms around his neck. On multiple
occasions in 2016, Geraci pulled up her shirt to reveal her abs to Hernandez despite
knowing that Hernandez did not want to see them. When Hernandez reported
Geraci’s behavior to Petrillo, he responded that he had more pressing issues to deal
with.
Hernandez also alleges that Petrillo refused to supply her with needed
equipment. For instance, Petrillo failed to fix a stretcher in the ultrasound room in
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which Hernandez worked, even though Hernandez repeatedly told him that it was
causing her physical pain and affecting her ability to care for patients.
Hernandez also alleges that she was mistreated by Victor Martinez, another
ultrasound technologist. On multiple occasions in 2016, Martinez teasingly asked
Hernandez where her “best friend” was, referring to Geraci. Martinez also
repeatedly told Hernandez that he was going to accuse her of harassment and take
her job. On one occasion, Martinez “became hostile towards” Hernandez because
Hernandez refused to perform a scan that had been assigned to Martinez.
Finally, Hernandez alleges that Petrillo holds her to a different standard than
males in the department. According to Hernandez, female ultrasound technologists
are given a greater volume of work and less time off than male ultrasound
technologists. On June 12, 2015, for example, Petrillo denied Hernandez’s request
for leave while granting the request of a more junior male employee.
F.
In June 2016, three radiologists—Dr. Thornton Eastham, Dr. Aaron
Andrews, and Dr. Katie Bailey—sent an anonymous letter to Joseph Battle,
Director of the Tampa VA, that corroborates many of Plaintiffs’ allegations. The
letter accuses radiology management of “managerial incompetence and neglect,
abuse of leadership position, fraud, administrative policy violations, and other
behaviors such as nepotism, retaliation, and intimidation.” With respect to
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retaliation, the letter alleges that “[e]mployees engaged in EEO or other complaints
of wrongdoing against the leadership are subjected to retaliatory behavior
including intentional creation of a hostile work environment, derogatory statements
about these employees in front of other staff, exclusion from advancement or
promotion within the department, and specific assignment of undesirable tasks or
duties.” The letter continues: “Employees are told verbally that communication or
testimony regarding any violations or accusations of wrongdoing will be learned of
immediately by the leadership and retaliated against accordingly.”
G.
On November 7, 2018, the District Court entered summary judgment in
favor of the Secretary. The Court found that Plaintiffs failed to carry their burden
under McDonnell Douglas because the conduct underlying their discrete retaliation
claims was either insufficiently adverse or supported by legitimate nonretaliatory
explanations. As to Plaintiffs’ hostile work environment claims, the Court found
that the conduct Plaintiffs complained of was not sufficiently severe or pervasive.
This appeal followed.
II.
We review a district court’s grant of summary judgment de novo.
Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). In doing so, we view the
evidence in the light most favorable to, and draw all reasonable inferences in favor
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of, the non-moving party. Id. Summary judgment is proper when the moving
party is entitled to judgment as a matter of law because of a lack of any genuine
issue of material fact. Fed. R. Civ. P. 56(c).
After careful consideration, we conclude the District Court’s entry of
summary judgment was proper as to Plaintiffs’ discrete retaliation claims. We
reach the same conclusion about Hernandez’s sex-based hostile work environment
claim. After summary judgment was entered in this case, a decision from this
Court clarified that retaliatory hostile work environment claims are not governed
by the “severe or pervasive” standard applied by the District Court here.
Monaghan v. Worldpay U.S. Inc., 955 F.3d 855, 862 (11th Cir. 2020). We
therefore vacate the part of the District Court’s order dealing with that claim and
direct the Court to analyze the claim consistent with our intervening decision.
III.
Title VII prohibits retaliation against an employee “because he has opposed
any practice made an unlawful employment practice by [Title VII], or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 2000e–3(a). We
have noted that § 2000e–16 was intended “to make Title VII applicable in the
federal workplace to the same extent that it was already applicable in the non-
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federal workplace.” Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1243
(11th Cir. 1998).
A.
A plaintiff may establish a retaliation claim using either direct evidence or
circumstantial evidence. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085
(11th Cir. 2004); Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).
Direct evidence is “evidence which reflects a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by the employee.”
Wilson, 376 F.3d at 1086 (quoting Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1358 (11th Cir. 1999)) (internal quotation marks omitted). If
believed, direct evidence “proves [the] existence of [a] fact in issue without
inference or presumption.” Burrell v. Board of Trustees of Ga. Military College,
125 F.3d 1390, 1393 (11th Cir. 1997) (quoting Rollins v. TechSouth, Inc., 833 F.2d
1525, 1528 n.6 (11th Cir. 1987)). “‘Only the most blatant remarks, whose intent
could be nothing other than to discriminate’ on the basis of some impermissible
factor” constitute direct evidence. Schoenfeld, 168 F.3d at 1266 (quoting Carter v.
City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). A statement is not direct
evidence of retaliation unless it is made by a person involved in the allegedly
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retaliatory action and unless the statement relates to that action.4 See Trotter v. Bd.
of Trustees, 91 F.3d 1449, 1453–54 (11th Cir. 1996) (“For statements of
discriminatory intent to constitute direct evidence of discrimination, they must be
made by a person involved in the challenged decision.”); Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks by non-
decisionmakers or remarks unrelated to the decisionmaking process itself are not
direct evidence of discrimination.”). When, by contrast, an “alleged statement
suggests, but does not prove, a discriminatory motive, then it is circumstantial
evidence.” Wilson, 376 F.3d at 1086 (citing Burrell, 125 F.3d at 1393).
Plaintiffs argue that the record contains direct evidence of retaliatory intent
from several actors, including Stenzler, Parise, Battle, Bennett, and Chief of Staff
Edward Cutolo. However, all of the statements that Plaintiffs point to either
indicate retaliatory intent only inferentially or are insufficiently connected with any
specific retaliatory action.
4
Before Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct.
2405 (2006), we said that for a statement to be direct evidence, it must “be made by a person
involved in the challenged decision,” Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453–54 (11th
Cir. 1996) (emphasis added), and that “remarks by non-decisionmakers or remarks unrelated to
the decisionmaking process itself are not direct evidence of discrimination,” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). These decisions reflect the pre-Burlington
Northern mindset that a cognizable retaliation injury need be employment related. In light of
Burlington Northern’s holding that a cognizable injury need not flow from an employment
decision, it is more accurate to say that a statement is not direct evidence unless it is made by a
person involved in the allegedly retaliatory action—whether an employment-related decision or
not—and unless the statement relates to that challenged action.
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Consider three statements from Stenzler that Plaintiffs call direct evidence.
First, Stenzler told Tonkyro that Cutolo and Fogarty “would not allow [her] to
become a supervisor.” Tonkyro responded that she “believed [it] was because of
[her] EEO activity and the ‘headache [she] caused Mrs. Fogarty, that [she] would
not be allowed to advance to a supervisor position.’” Stenzler responded,
“[P]robably not.” Second, Stenzler told Eastham that Davis would never be a
supervisor. Third, Stenzler said that Plaintiffs were causing problems for the
ultrasound department by filing frivolous EEOC complaints. Stenzler made the
third statement over three years after he made the first two statements.
Stenzler’s first two statements are direct evidence only of the fact that
Stenzler thought that Tonkyro and Davis would not be selected for supervisory
positions. The statements betray nothing about Stenzler’s motives. At most,
Stenzler’s first statement affirms, though ambiguously, Tonkyro’s suspicions about
Fogarty’s retaliatory motives. But this constitutes mere circumstantial evidence of
Fogarty’s retaliatory intent, since an ambiguous statement about another person’s
subjective intent cannot be direct evidence of that intent. See Wilson, 376 F.3d at
1086 (“If [an] alleged statement suggests, but does not prove, a discriminatory
motive, then it is circumstantial evidence.”). Stenzler’s third statement is strong
evidence that he was annoyed by Plaintiffs’ EEOC activity, but the statement has
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no apparent connection with any retaliatory act by Stenzler. Therefore, Stenzler’s
statements constitute only circumstantial evidence.
Plaintiffs also point to five alleged statements by Parise. First, at a lunch
meeting with other radiologists, Parise stated that he would see the testimony given
in the AIB investigation into Plaintiffs’ 2012 EEOC complaints and “would know
who said what about him.” Second, in an informal meeting with other physicians,
Parise stated: “I [] choose not to go down [to the ultrasound department] because if
I do I’ll stick my fucking foot down [the ultrasound technicians’] throats.”5 Third,
Parise allegedly discussed Plaintiffs’ EEOC settlements publicly, saying that
Plaintiffs had received “something in the order of $50,000 each,” that Bennett “had
accepted a punishment,” but that he (Parise) “wasn’t accepting his” and “was going
to fight it.” Fourth, Parise told Eastham that “someone in the director’s office was
saying that [Plaintiffs] were going to get fired because there was so much in-
fighting going on.” Finally, when it was announced that Davis would be taking
maternity leave, Parise yelled “Yes” and made “an arm jerking motion to suggest a
celebratory action.”
5
Under the terms of the Settlement Agreements, Plaintiffs waived the right to pursue
claims based on Parise’s first and second statements. See supra p.3. Plaintiffs argue, though,
that the statements may nonetheless be considered as background evidence “relevant to
intentions.” We assume without deciding that Plaintiffs are correct, and therefore consider the
statements as possible direct evidence of retaliatory intent.
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As an initial matter, we note that Plaintiffs do not allege that Parise retaliated
against them by denying them promotions. It is undisputed that Parise had no
decisionmaking authority in this respect. Rather, Plaintiffs allege that Parise
retaliated against them by spreading rumors and making derogatory comments.
Indeed, the retaliation alleged from Parise consists in the very statements that
Plaintiffs use as direct evidence. In other words, Plaintiffs argue that Parise’s
statements constitute direct evidence of why he made those statements. This
argument is untenable.
Take, for instance, Parise’s first and third statements, which are the only
ones that facially pertain to Plaintiffs’ EEOC activity. Even assuming Parise made
the first statement because he wanted to intimidate other radiologists from
testifying against him in the AIB proceedings, we are still left to infer about the
motivation underlying the intimidation. It is certainly possible that Parise was
motivated to retaliate against Plaintiffs because of their EEOC activity. It is
equally possible that he was driven by self-preservation, fearing that he may lose
his job if anything negative came to light.
The motivations behind Parise’s third statement are equally ambiguous. He
may have shared the terms and circumstances of the settlements as an act of
retaliation. Or, he may have simply been boasting that he, unlike Bennett, was not
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going to accept his punishment and “was going to fight it.” 6 In sum, Parises’s
statements are not the sort of “blatant remarks[] whose intent could be nothing
other than to discriminate.” Schoenfeld, 168 F.3d at 1266 (quoting Carter, 870
F.2d at 582).
The alleged statements from Battle, Bennett, and Cutolo are not direct
evidence for the same reasons. 7 Therefore, Plaintiffs’ case is based only on
circumstantial evidence.
6
The fact that Parise understated the settlement amounts by $90,000 to $95,000 suggests,
at least, that he was motivated by something other than a desire to accurately reveal the
confidential terms of the settlements. While Parise said that Plaintiffs had received “something
in the order of $50,000 each,” Tonkyro in fact received $145,000, Davis received $145,000, and
Strauser received $140,000.
7
Plaintiffs argue that Battle directly revealed his retaliatory intent in his deposition when
he stated that he did not sign an AIB report about Davis’s bullying of Geraci because he first
“wanted to be sure . . . that there wouldn’t be anything retaliatory about it because I don’t have
any interest in retaliating against anybody.” We are unconvinced by Plaintiffs’ paradoxical
argument that Battle somehow revealed his retaliatory intent by stating that he had no intent to
retaliate.
Plaintiffs also argue that direct evidence of Bennett’s retaliatory intent consists in his
ordering an employee to upload confidential employee information to the public S-Drive. But an
act cannot constitute direct evidence that the act was retaliatory unless the intent behind the act
“could be nothing other than to discriminate.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th
Cir. 1999) (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). As explained
infra pp. 32–34, that is not the case here.
Finally, Plaintiffs point to a statement Cutolo made to Bailey blaming certain “problem
technologists” for issues in the radiology department. Because this statement was not made in
connection with any alleged act of retaliation, it does not constitute direct evidence. And, to the
extent the retaliation alleged is the statement itself, we reject the notion that an ambiguous
statement such as this one can constitute direct evidence that it was made with retaliatory intent.
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B.
When a plaintiff attempts to prove her case using only circumstantial
evidence, we apply the burden-shifting framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
This framework puts the initial burden on the plaintiff to establish a prima facie
case of retaliation. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824;
Eskra v. Provident Life and Acc. Ins. Co., 125 F.3d 1406, 1411 (11th Cir. 1997).
To establish a prima facie case, a plaintiff must show that: “(1) she engaged in an
activity protected under Title VII; (2) she suffered an adverse employment action;
and (3) there was a causal connection between the protected activity and the
adverse employment action.” Crawford, 529 F.3d at 970 (citing Pennington v.
City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)).
If the plaintiff establishes a prima facie case, a presumption arises “that the
adverse action was the product of an intent to retaliate.” Gogel v. Kia Motors
Manufacturing of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en banc)
(quoting Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)). “The burden
then shifts to the employer to ‘articulate’ a legitimate, non-discriminatory reason
for its action.” Schoenfeld, 168 F.3d at 1267 (quoting Texas Dep’t. of Cmty. Affs.
v. Burdine, 450 U.S. 248, 254–55, 101 S. Ct. 1089, 1094–95 (1981)). “If the
employer offers such legitimate reasons for the employment action, the plaintiff
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must then demonstrate that the employer’s proffered explanation is a pretext for
retaliation.” Crawford, 529 F.3d at 976 (quoting Holifield v. Reno, 115 F.3d 1555,
1566 (11th Cir. 1997) (per curiam)). “Importantly, throughout this entire process,
the ultimate burden of persuasion remains on the employee.” Sims v. MVM, Inc.,
704 F.3d 1327, 1333 (11th Cir. 2013).
The parties agree that Plaintiffs established the first element of their prima
facie case—that they engaged in activity protected under Title VII—but they
disagree about whether Plaintiffs suffered adverse employment actions and, if so,
whether those adverse employment actions were causally connected to Plaintiffs’
protected activity.
Plaintiffs allege the following adverse employment actions: (1) they were
denied opportunities for advancement; (2) private information relating to their
EEOC activity was published on the S-Drive; and (3) VA employees spread
rumors and made disparaging comments about Plaintiffs and their EEOC activity.
Because we believe that the first two actions fail at the pretext stage of McDonnell
Douglas, we will assume arguendo that Plaintiffs established a prima facie case in
connection with them. Below, we consider whether Plaintiffs established a prima
facie case of retaliation for the rumors and disparaging comments.
An employment action is only “adverse” if the action “would have been
materially adverse to a reasonable employee or job applicant.” Burlington N. &
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Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409 (2006).
Generally, “that means that the employer’s actions must be harmful to the point
that they could well dissuade a reasonable worker from [engaging in protected
activity].” Id. Title VII does not protect against “those petty slights or minor
annoyances that often take place at work and that all employees experience.” Id. at
68, 126 S. Ct. at 2415. “[T]he sporadic use of abusive language, gender-related
jokes, [] occasional teasing,” and the like do not generally rise to the level of
material adversity. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct.
2275, 2284 (1998).
The essential question here is whether the rumors and comments about
Plaintiffs are mere “petty slights [and] minor annoyances” of the sort which Title
VII does not redress, or whether they are sufficiently severe to dissuade a
reasonable employee from engaging in EEOC activity. In evaluating the severity
of the rumors and comments, we must consider the context and circumstances in
which they were uttered. See Burlington, 548 U.S. at 69, 126 S. Ct. at 2415
(“[T]he significance of any given act of retaliation will often depend upon the
particular circumstances.”). However, we must not consider the rumors and
comments in the aggregate, as with a hostile work environment claim. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15, 122 S. Ct. 2061, 2073
(2002) (noting that discrete retaliation claims are different from hostile work
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environment claims because the former are based on individual acts, while the
latter “are based on the cumulative effect of individual acts”); see also Brooks v.
Grundmann, 748 F.3d 1273, 1278 (D.C. Cir. 2014) (“Unlike a hostile work
environment claim . . . a discrete-acts claim involves a single act of discrimination
. . . .”). Instead, we must evaluate the severity of each statement independently—a
statement is not sufficiently adverse unless it, standing alone, “could well dissuade
a reasonable worker from [engaging in protected activity].” Burlington, 548 U.S.
at 57, 126 S. Ct. at 2409.
Plaintiffs base their retaliation claims on the following rumors and
comments.8 Stenzler said that Plaintiffs and their “frivolous” EEOC complaints
were responsible for the ultrasound department’s failures; Parise told other
radiologists that they should be careful if they go down to the ultrasound
department because they might get an EEOC complaint filed against them; Parise
told others that the ultrasound technologists were going to be fired for in-fighting;
Parise yelled “Yes” and made a celebratory gesture when it was announced that
Davis would be taking maternity leave; unidentified coworkers called Plaintiffs
8
Plaintiffs base their claims in part on statements that were made before the 2013
Settlement Agreements. As part of the Settlement Agreements, Plaintiffs waived their rights to
pursue actions “which were raised or could have been raised” in the 2012 EEOC complaints, as
well as “future causes of action against the [VA] based on such actions in existence” at the time
of the settlements. The District Court rejected Plaintiffs’ claims to the extent they were based on
statements subject to the waiver, and Plaintiffs do not argue that this was error. Therefore, we
consider only the statements that were not subject to the waiver.
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“money-grubbing bitches”; and Cutolo stated that the ultrasound technologists
were causing problems for the radiology department. In addition to these discrete
comments, Plaintiffs point to the deposition testimony of four different radiologists
to establish that there were rumors circulating about their EEOC activity. Dr.
Eastham, Dr. Lenny Chuang, Dr. Marla Hersh, and Dr. Bailey testified that they
had heard, either from Parise or elsewhere, that Plaintiffs had filed EEOC
complaints and obtained money settlements from the VA. Two of them also
testified that this was “common knowledge” and that “the whole department knew
about [it].”
In the aggregate, these rumors and comments caused Plaintiffs two
significant types of harm. First, they harmed Plaintiffs’ professional reputations by
creating the impression that Plaintiffs, as employees, are a liability. Eastham
testified that hospital employees in Pasco County, Bay Pines, and Vero Beach—all
between 25 and 150 miles of Tampa—have the impression that the ultrasound
department in the Tampa VA is filled with litigious “troublemakers” who “want all
the doctors to be fired.” Second, confidential information about Plaintiffs’ EEOC
activity was made known to their coworkers and even to many hospital employees
across central Florida. We have little doubt that a reasonable employee may well
be dissuaded from filing an EEOC complaint if she knew that she would
henceforth be regarded by her colleagues and superiors—and even by others in the
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local industry—as a nuisance and a liability. Likewise, if an employee knew that
any complaint she makes, and the details of any resulting settlement, would
become the favorite subject of lunchtime discussions, she may rather tolerate
harassment or discrimination than gossip and infamy.
The problem for Plaintiffs, however, is that these harms do not flow from
any single rumor or comment, but from all the rumors and comments in the
aggregate. Because Plaintiffs have failed to identify any single statement that is
materially adverse on its own, we conclude that Plaintiffs have failed to establish a
prima facie case on this part of their retaliation claims.
C.
We have assumed a prima facie case of retaliation based on the denial of
opportunities for advancement and the S-Drive incident. We now address the
Secretary’s proffered explanations for those actions and whether Plaintiffs
demonstrated that those explanations are pretext. Because we find that Plaintiffs
failed to show pretext, we conclude that the District Court properly granted
summary judgment on Plaintiffs’ retaliation claims.
To determine whether an employer’s proffered explanations are pretext, the
district court must “evaluate whether the plaintiff has demonstrated ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
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factfinder could find them unworthy of credence.’” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997). “[A] reason is not pretext for [retaliation]
unless it is shown both that the reason was false, and that [retaliation] was the real
reason.’” Gogel, 967 F.3d at 1136 (quoting Springer v. Convergys Customer
Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (internal quotation marks
omitted) (alterations in original)). In showing that retaliation was the real reason
for the action, the plaintiff must show “that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or action of the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 133 S. Ct. 2517, 2533
(2013). In other words, the plaintiff’s protected activity must be a but-for cause of
the adverse action. 9 Id.
We begin with the Secretary’s proffered explanations for denying Plaintiffs
opportunities for advancement. In their affidavits and depositions, Plaintiffs
claimed they were retaliated against in connection with five different job openings:
9
Plaintiffs argue that a more lenient causation standard than the one articulated by the
Supreme Court in Nassar applies to Title VII retaliation actions against federal employers under
§ 2000e–16. However convincing Plaintiffs’ argument may be in light of the Supreme Court’s
decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), the argument is foreclosed by binding circuit
precedent in Trask v. Secretary of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016). See
Garrett v. Univ. of Ala. at Birmingham, 344 F.3d 1288, 1292 (11th Cir. 2003) (“While an
intervening decision of the Supreme Court can overrule the decision of a prior panel of our court,
the Supreme Court decision must be clearly on point.”); Fla. League of Pro. Lobbyists, Inc. v.
Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“[W]e are not at liberty to disregard binding case law
that is so closely on point and has been only weakened, rather than directly overruled, by the
Supreme Court.”).
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the September 2013 opening for MRI/Ultrasound Supervisor, the January 2014
opening for MRI/Ultrasound Supervisor, the January 2015 opening for Ultrasound
Supervisor, the March 2016 opening for Lead Ultrasound Technician at the PCA,
and the April 2016 opening for Ultrasound Supervisor. However, Plaintiffs made
no argument about the September 2013, January 2014, or January 2015 openings
in their memorandum in opposition to summary judgment before the District
Court. We therefore find that Plaintiffs have abandoned those particular claims.
See Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271 (11th Cir.
2019) (“The general rule is that we will not consider an issue raised for the first
time on appeal.”). Below, we consider the Secretary’s proffered explanations in
connection with the other two positions.
Regarding the March 2016 Lead Ultrasound Technician opening, the
Secretary explained that Tonkyro was not selected because management decided
that it would better meet the department’s needs to create a lead mammography
position in the main hospital instead. Plaintiffs argue that this reason is pretextual
because mammography was overstaffed and did not need a new lead position. The
only evidence Plaintiffs use to support their pretext argument, however, is the
deposition testimony of a mammography technologist who expressed the opinion
that three mammography technologists were too many for the patient load, space,
and equipment at the Tampa VA. This testimony does not support Plaintiffs’
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argument because it says nothing about whether the department needed a new lead
position, as opposed to a new technologist position. And, even if the technologist
had testified that a new lead position would be unnecessary, such testimony would
be insufficient to establish pretext. To question the legitimacy of a staffing
decision on the basis of such testimony would violate the principle that “Title VII
is not designed to make federal courts sit as a super-personnel department that
reexamines an entity’s business decisions.” Davis v. Town of Lake Park, Fla., 245
F.3d 1232, 1244 (11th Cir. 2001) (quotation marks omitted). Therefore, Plaintiffs
failed to establish pretext in connection with the March 2016 position.
With respect to the April 2016 Ultrasound Supervisor opening, the Secretary
explained that Davis had not been selected because management put her
application on hold because of the AIB investigation into Geraci’s allegations that
Davis had been bullying her. Plaintiffs argue that the AIB investigation was
orchestrated specifically to give management a facially non-retaliatory reason to
deny Davis the position.
Plaintiffs’ theory is as follows. Geraci wanted to be transferred to the New
Port Richey clinic, and management wanted to prevent Davis from obtaining the
Ultrasound Supervisor opening. So, Geraci and management entered a conspiracy
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to achieve these ends. 10 Geraci filed a complaint falsely accusing Davis of
bullying her, and management empaneled an AIB to investigate the accusations.
The AIB investigation provided a pretext both for Geraci to be transferred to New
Port Richey and for Davis’s application to be put on hold, at least temporarily.
There are at least two problems with Plaintiffs’ theory. First, there is no
evidence that the various actors involved in the AIB process conspired to achieve
the ends alleged. Geraci testified that she decided to write a letter to Stenzler about
Davis’s bullying on her own initiative. Geraci was not prompted to write the letter
or told that writing it would cause her to be transferred to New Port Richey. After
Geraci wrote the letter, Stenzler referred the matter to Cutolo and Battle, who
decided to initiate an AIB investigation. Nothing in the record suggests that
Cutolo or Battle initiated the investigation as part of a conspiracy with Geraci,
Petrillo, or Stenzler. Second, the AIB panel’s conclusion that Davis had been
bullying Geraci undermines the notion that the allegations were fabricated. The
panel was composed of three individuals from outside the radiology department
who, as far as the record shows, had no knowledge of Davis’s EEOC activity. The
panel concluded that Geraci had been bullied, and recommended remedial training
and teambuilding exercises. Nothing in the record suggests any improper motive
10
Geraci could not simply request a transfer to New Port Richey because the positions
there were competitive, and employees more senior to her would have had priority.
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or impartiality on the part of the panel. Instead, the record reflects that the panel
conducted a thorough investigation, interviewed several witnesses, and reached a
conclusion based on the evidence. Therefore, Plaintiffs have failed to show that
the AIB investigation was a pretext to deny Davis the Ultrasound Supervisor
position.
We now consider the Secretary’s proffered explanation regarding the S-
Drive incident. Plaintiffs’ allegation is that Bennett told Carolyn Eubanks, who
was Plaintiffs’ first-line supervisor at the time, to upload Plaintiffs’ private
information to the S-Drive as an act of retaliation. The Secretary explained that the
information was placed on the S-Drive not as an act of retaliation, but rather to
facilitate the transfer of employee personnel files. Specifically, Bennett instructed
Eubanks to place the files on the S-Drive so that Mario DeLeon, who was taking
over Eubanks’ role as supervisor, could download the files to his personal
computer. Though the files were supposed to be removed from the S-Drive once
DeLeon downloaded them, by oversight they remained for three months. This
explanation was supported by Eubanks’ deposition testimony, but contradicted by
Bennett’s, who said he never told Eubanks to put the files on the S-Drive. A
reasonable jury could certainly disbelieve Bennett, but the key question is whether
a reasonable jury could conclude that Bennett would not have told Eubanks to
upload the files but-for his retaliatory intent.
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As previously discussed, there is no direct evidence linking the S-Drive
incident with Bennett’s retaliatory intent. If such a link is to be made, therefore, it
is through circumstantial evidence. There is plenty of evidence suggesting that
Bennett harbored animosity toward Plaintiffs, including glaring at Plaintiffs on
multiple occasions and making snide comments about Plaintiffs to others. Putting
this evidence together with the fact that Plaintiffs filed EEOC complaints against
Bennett and obtained settlements, a jury could conclude that Bennett harbored
animus toward Plaintiffs because of their EEOC activity. The question remains,
however, whether a jury could conclude that the S-Drive incident was a product of
Bennett’s retaliatory animus.
To raise a genuine issue as to whether the S-Drive incident was retaliatory,
Plaintiffs were required to meet the Secretary’s proffered explanation “head on and
rebut it,” Wilson, 376 F.3d at 1088, to show that the explanation is “unworthy of
credence,” Combs, 106 F.3d at 1538. Plaintiffs failed to do so. Eubanks testified
in her deposition that she was having trouble transferring her files to DeLeon, that
“it was extremely time consuming,” and that she “was not getting any help from
the [Information Resource Management Systems Department]” as to the proper
way to transfer the files. There is no evidence showing that Eubanks was not, in
fact, struggling to transfer her files. Bennett testified that he did not know the
contents of the folder that was uploaded to the S-Drive, and there is no evidence to
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the contrary. There is no evidence that Bennett told anyone that Plaintiffs’ private
information was on the S-Drive, as one might expect if the incident had been
retaliatory. There is no evidence that anyone other than Plaintiffs and the two
individuals who brought the issue to Plaintiffs’ attention ever noticed that the files
were on the S-Drive. There is no evidence that the files were not removed in a
timely manner once the issue was flagged. On the contrary, Stenzler, Bennett, and
Graham removed the files within a few days. Finally, there is no evidence that
Plaintiffs were in any way singled out by the incident. Rather, the incident
compromised the privacy of patients and employees across the radiology
department, regardless of whether they had engaged in EEOC activity.
To be sure, it is irresponsible to place confidential files on a drive accessible
to employees who have no business seeing them. It is not at all implausible,
though, that unsound judgment might consider it an expedient means of transfer,
and that the files might then remain exposed through carelessness or oversight.
Met with such an explanation, Plaintiffs were required to raise doubt that the
incident was more than plain irresponsibility. They failed to do so.11
11
One final point: If an act of retaliation, the S-Drive incident was not a particularly well-
calculated one. Assuming Eubanks and DeLeon were not co-conspirators with Bennett (and
there is no evidence they were), the expected course of events would be as follows. Bennett tells
Eubanks to upload the files to the S-Drive on her last day of work. Eubanks does so, then
DeLeon downloads them and promptly removes them from the S-Drive. Assuming DeLeon’s
first day was Eubanks’ last, this leaves Plaintiffs’ information exposed for a matter of hours.
Unless Bennett plans to download the files himself during these few hours and distribute them
throughout the VA and beyond (and there is no evidence that he did), his plan will not likely do
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For the foregoing reasons, we conclude that Plaintiffs failed to carry their
burden under McDonnell Douglas. The District Court therefore properly entered
summary judgment on Plaintiffs’ discrete retaliation claims.
IV.
Title VII prohibits the creation of a hostile work environment in retaliation
for an employee’s protected activity, 42 U.S.C. § 2000e–3; Gowski, 682 F.3d at
1312, or because of the employee’s “race, color, religion, sex, or national origin,”
§ 2000e–2; Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370
(1993).
We first recognized a cause of action for retaliatory hostile work
environment in Gowski. In that opinion, we said such claims are analyzed under
the same standard as substantive hostile work environment claims—that is, a
plaintiff must show that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.” Gowski, 682 F.3d at 1311 (quoting Harris, 510 U.S. at 21, 114 S.
Ct. at —). It is understandable, then, that the District Court below applied the
“severe or pervasive” standard to Plaintiffs’ retaliatory hostile work environment
Plaintiffs much harm. It is only by accident that Plaintiffs’ information remained exposed for as
long as it did, owing either to DeLeon’s failure to remove the files from the S-Drive or Eubanks’
failure to tell him to.
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claims. After the District Court’s order, however, we issued an opinion in
Monaghan v. Worldpay U.S. Inc., rejecting Gowski’s “severe or pervasive”
standard as inconsistent with the Supreme Court’s decision in Burlington Northern
and our earlier decision in Crawford (applying Burlington Northern’s retaliation
standard). 955 F.3d 855, 862 (11th Cir. 2020). Instead, we said retaliatory hostile
work environment claims, like retaliation claims based on discrete acts, prevail if
the conduct complained of “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. at 862–63 (quoting
Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415).
Because the District Court analyzed Plaintiffs’ retaliatory hostile work
environment claims under Gowski, we vacate that part of the judgment and direct
the Court to instead apply Burlington Northern on remand. Hernandez’s hostile
work environment claim based on sex, by contrast, was properly analyzed under
the “severe or pervasive” standard. Our analysis of that claim follows.
To establish a sex-based hostile work environment, a plaintiff must show
that “the workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th. Cir. 2002) (quoting Harris, 510 U.S. at
21, 114 S. Ct. at 370). To be sufficiently “severe or pervasive,” the employer’s
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actions “must result in both an environment that a reasonable person would find
hostile or abusive and an environment that the victim subjectively perceive[s] . . .
to be abusive.” Id. at 1276 (quotation marks omitted). “In evaluating the objective
severity of the harassment,” we look to the totality of the circumstances, including:
“(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Id.
The standards for judging hostility are intended to be “sufficiently
demanding to ensure that Title VII does not become a ‘general civility code.’”
Faragher, 524 U.S. at 788, 118 S. Ct. at 2283. “Properly applied, they will filter
out complaints attacking the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing.”
Id. (internal quotation marks omitted). “[M]ere utterance of an . . . epithet which
engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21, 114 S.
Ct. at 370 (quotation marks omitted) (citation omitted).
In addition to establishing that the employer’s actions were sufficiently
“severe or pervasive,” a plaintiff must show that the actions were based on her sex
rather than some other unprotected characteristic. Mendoza v. Borden, Inc., 195
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F.3d 1238, 1245 (11th Cir. 1999) (en banc). To do so, she “must show that but for
the fact of her sex, she would not have been the object of harassment.” Henson v.
City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
Hernandez’s sexual harassment claim is based primarily on Geraci’s
conduct. Hernandez complains of several incidents: Geraci pulled up her blouse to
show Hernandez the outline of her breasts through her undershirt; Geraci made
inappropriate jokes to Hernandez, using the word “vagina”; Geraci made a gesture
of inserting something into her vagina to Hernandez; Geraci gave Hernandez an
angry look; Geraci ignored Hernandez on multiple occasions; Geraci gave
Hernandez a “chest bump”; Geraci scanned her own abdomen with an ultrasound
transducer in Hernandez’s presence, and revealed her abs to Hernandez multiple
times; Geraci spoke to Hernandez in a “condescending and hostile tone”; Geraci
insulted Hernandez about her eating disorder; Geraci embraced Hernandez and
kissed her on the cheek; and Hernandez observed Geraci interacting with a male
coworker in an inappropriately flirtatious manner. Hernandez also bases her claim
on Petrillo’s failure to remedy the sexually hostile work environment created by
Geraci.
As an initial matter, most of Geraci’s conduct lacks “the necessary sexual or
other gender-related connotations to be actionable sex discrimination.” Mendoza,
195 F.3d at 1247. We have noted that “Title VII does not prohibit profanity alone,
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however profane . . . [nor] harassment alone, however severe and pervasive.
Instead, Title VII prohibits discrimination, including harassment that discriminates
based on a protected category such as sex.” Baldwin v. Blue Cross/Blue Shield of
Ala., 480 F.3d 1287, 1301–02 (11th Cir. 2007). “[S]exual language and
discussions that truly are indiscriminate do not themselves establish sexual
harassment under Title VII.” Reeves, 594 F.3d at 809. “[W]orkplace
harassment . . . is [not] automatically discrimination because of sex merely because
the words used have sexual content or connotations.” Id. (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002 (1998)).
Here, Hernandez failed to raise a genuine issue of fact that Geraci’s conduct
was based on Hernandez’s sex. In making this inquiry, we are guided by the
“common-sense rule that the context of offending words or conduct is essential to
the Title VII analysis.” Id. at 810.
Consider the context in which Geraci revealed the outline of her breasts to
Hernandez. The incident occurred during a conversation about a male doctor to
whom Geraci was attracted. Hernandez told Geraci that the doctor preferred “big
breasts,” and Geraci proceeded to lift up her shirt to prove that she was the doctor’s
type. Nothing in the record allows the conclusion that Geraci’s conduct had
anything to do with Hernandez’s sex.
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Similarly, the context surrounding Geraci’s inappropriate touching of
Hernandez shows that the touching was not sex based. Geraci “chest bumped”
Hernandez after learning of her employment benefits and giving Hernandez a high-
five. Nothing in the record suggests that the bump was anything more than a mere
celebratory gesture, as the context and the definition of the phrase suggest. See
Macmillan Dictionary, Chest Bump,
https://www.macmillandictionary.com/us/dictionary/american/chest-bump (last
accessed Dec. 29, 2020) (defining “chest bump” as “an action in which two people
bump their chests together, usually as a celebration”). Geraci’s decision to
embrace Hernandez and kiss her on the cheek was similar—Geraci did so after
Hernandez told her that Geraci’s patient cancelled an appointment.
Likewise, the record shows that Geraci’s use of the word “vagina” occurred
first in the context of a discussion about transvaginal ultrasounds. Then,
apparently realizing that her talk of vaginas bothered Hernandez, Geraci began
teasing Hernandez with the word. “Even gender-specific terms cannot give rise to
a cognizable Title VII claim if used in a context that plainly has no reference to
gender.” Reeves, 594 F.3d at 810. Although the word “vagina” is plainly gender-
specific, Geraci’s use of it was not gender-derogatory. Compare id. at 811–12 (a
jury could find that the use of the words “whore,” “bitch,” and “cunt,” together
with “vulgar discussions of women’s breasts, nipples, and buttocks” “contributed
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to conditions that were humiliating and degrading to women on account of their
gender”).
Finally, there is no evidence suggesting that the angry looks, harsh words,
and silent treatment that Geraci gave Hernandez were because of Hernandez’s sex.
On the contrary, the record suggests that Geraci was angry at Hernandez because
Hernandez reported Geraci for sexual harassment.
Even if Geraci’s conduct was based on Hernandez’s sex, Hernandez’s claim
would still fail because the conduct is insufficiently severe or pervasive to alter the
terms and conditions of Hernandez’s employment. “[W]e proceed with common
sense, and an appropriate sensitivity to social context, to distinguish between
general office vulgarity and the conduct which a reasonable person in the
plaintiff’s position would find severely hostile or abusive.” Reeves, 594 F.3d at
811 (quotation marks omitted) (alterations adopted).
In Mendoza, we said that a male supervisor’s conduct was not threatening or
humiliating to a female employee when that conduct included telling the employee
he was “getting fired up,” making sniffing sounds while staring at the employee’s
crotch, brushing his hip against the employee’s hip, and following the employee
around the workplace. 195 F.3d at 1248–49.
In Johnson v. Booker T. Washington Broadcasting Service, Inc., by contrast,
we held that an employee was sexually harassed when her male coworker
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repeatedly told her she had a sexy voice, winked at her, exposed the imprint of his
private parts to her through his pants, gazed at her body in a sexual manner,
repeatedly attempted to massage her shoulders, rubbed his body parts against her,
and asked her questions about her sex life, among other things. 234 F.3d 501, 506
(11th Cir. 2000).
Geraci’s conduct toward Hernandez is significantly less severe than the
conduct at issue in Johnson, and likely less severe than the insufficiently severe
conduct in Mendoza, as well. Unlike those cases, some of Geraci’s conduct was
merely witnessed by Hernandez rather than directed at her—namely, Geraci
scanning her own abdomen, embracing a male coworker, and sitting on his lap.
And the physical conduct that Geraci did direct toward Hernandez—pulling up her
shirt, chest bumping, hugging, and kissing Hernandez—is, as explained above,
qualitatively different from the sexually charged conduct in Johnson and Mendoza.
In sum, Geraci’s conduct is of an entirely different nature from the sexually
predatory conduct at issue in Johnson and Mendoza. Such conduct is insufficiently
severe or pervasive to alter the terms and conditions of Hernandez’s employment.
Finally, Hernandez alleges that Petrillo held her to a different standard than
similarly situated males in the ultrasound department. In particular, Hernandez
complains that Petrillo denied her request for leave, while granting the request of a
male employee with less seniority. This, however, is a quintessential “isolated
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incident[]” of the sort that is insufficient to alter the terms and conditions of
employment. Faragher, 524 U.S. at 788, 118 S. Ct. at 2283.
For the foregoing reasons, the District Court properly granted summary
judgment for the Secretary on Hernandez’s sex-based hostile work environment
claim.
V.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
WITH INSTRUCTIONS.
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APPENDIX
James A. Haley VA Organizational Structure (2012)
Kathleen
Fogarty
Director
Edward
Cutolo
Chief of Staff
Stephen Stenzler
Chief of Radiology
(beginning October
2012) Joseph Parise
Assistant Chief
of Radiology
John Bennett
Chief Radiology
Technologist
Jeri Graham
MRI/MIT Supervisor
(pre-April)
Erin Tonkyro Kara Davis Dana Strauser Yenny Hernandez
Medical Instrument Medical Instrument Medical Instrument Medical Instrument
Technologist Technologist Technologist Technologist
USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 45 of 45
James A. Haley VA Organizational Structure (2016)
Joseph Battle
Director
Edward
Cutolo
Chief of Staff
Stephen Stenzler
Chief of Radiology
John Bennett Joseph Parise
Administrative Officer Assistant Chief
of Radiology of Radiology
Jeri Graham
Chief Radiology
Technologist
Scott Petrillo
MRI/MIT Supervisor
Erin Tonkyro Kara Davis Dana Strauser Yenny Hernandez
Lead Medical
Medical Instrument Medical Instrument Medical Instrument
Instrument
Technologist Technologist Technologist
Technologist
45