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Sporadic Comments Not Enough for 11th Circuit to Find Sexual Harassment

In an unpublished opinion, the Eleventh Circuit Court of Appeals found that “no reasonable jury” could have found in favor an employee alleging sexual harassment. D’Marius Allen was an EMT for Ambu-Stat LLC. The company was co-owned by husband and wife Rita and Santos Ortiz with Rita owning 51% of the company.
Allen alleged that Santos made several comments about her appearance, telling her on her first day  that she was “really pretty.” On another occasion, Santos stated that she was “fine as hell” in response to Allen’s comments about her weight. Allen testified that she was not offended by this comment. Santos also stated to Allen that she had a body like his ex-girlfriend, but better, with wider hips. While moving a patient, Santos said “[Y]ou got to watch that stuff on the table with that big old butt or you’re going to knock it down trying to move her.” Allen also alleged that Santos spoke to her co-workers about the fact that he found her attractive. In addition, Santos referenced a song to Allen and asked: “[D]oes your boyfriend eat that thang?” Allen responded that her boyfriend did not and Santos responded: “I could teach him.” After recommending chocolate milk for muscle soreness, Allen received a text from Santos saying he loved chocolate milk, along with “tongue” emojis. Lastly, when they were working out at the gym together, Santos pointed to Allen’s groin area (which was wet with sweat) and commented, "Damn, that thing get wet like that.”
Allen was called into the office by Rita who allegedly accused Allen of having an affair with Santos. The meeting ended with Rita advising Allen not to share personal problems with Santos. Allen was issued a disciplinary notice about having personal conversations with Santos. Rita ultimately fired Allen.
Title VII requires sexual harassment be “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” The court reiterated that “Title VII is not a civility code,” and that the working environment must be “objectively and subjectively offensive,” such that “a reasonable person would find hostile or abusive.” Against these standards, the circuit court concluded that the “sporadic comments, spread over four months” made by Santos did not rise to the above standard. Ambu-Stat was granted summary judgment on Allen’s claims.