# Red Mendoza v. Borden, Inc., D.B.A. Borden's Dairy > Court of Appeals for the Eleventh Circuit · November 16, 1999 · 195 F.3d 1238 URL: https://www.frixlaw.com/law-library/cases/9492622 ## Case - **Full name:** Red MENDOZA, Plaintiff-Appellant, v. BORDEN, INC., D.B.A. Borden’s Dairy, Defendant-Appellee - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** November 16, 1999 - **Citations:** 195 F.3d 1238; 81 Fair Empl. Prac. Cas. (BNA) 470; 1999 U.S. App. LEXIS 30400; 1999 WL 1036607 - **Precedential status:** Published - **Opinion:** Concurring in part by Barkett - **Judges:** Anderson, Tjoflat, Edmondson, Cox, Birch, Dubina, Black, Carnes, Barkett, Hull, Marcus - **Cited by:** 508 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492622 ## How later opinions describe it (automated extraction) - finding that over an eleven month period, supervisor’s “constant” following of employee and staring in a “very obvious fashion,” two instances of making a sniffing sound while looking at the employee’s groin area and another instance of sniffing without looking at the groin ar… - finding that “one instance in which Page [the alleged harasser], said to [Plaintiff] Mendoza, ‘I’m getting fired up,’ (2) one occasion in which Page rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing so… - finding that “one instance in which Page[, the alleged harasser,] said to [Plaintiff] Mendoza, ‘I’m getting fired up;’ (2) one occasion in which Page rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing s… - finding that a supervisor rubbing his hip against the plaintiff “while touching her shoulder and smiling”; following the plaintiff and staring at her “in a very obvious fashion”; making sounds while staring at the plaintiff’s groin; and making a sexual comment to the plaintiff… - concluding that a supervisor’s conduct in which he “constantly” followed the plaintiff and stared at her, twice made a “sniffing motion” while looking at the plaintiff’s groin area, once made a sniffing sound without looking at her groin, rubbed his hip against the plaintiff’s… ## Opinion text BARKETT, Circuit Judge concurring in part, and dissenting in part, in which BIRCH, Circuit Judge, joins: . I concur with the judgment of the court but for the affirmance of the directed verdict on the sexual harassment claim. To affirm the directed verdict on the sexual harassment claim in this case, the majority must conclude, after “review[ing] all of the evidence in the light most favorable to, and with all reasonable inferences drawn in favor of, the ndnmoving party,” that no genuine issue of material fact exists and no “reasonable and fair-minded persons ... might reach different conclusions” as to whether Red Mendoza suffered sexual harassment. A directed verdict is only proper where “[t]he facts and inferences ... ‘so overwhelmingly favor the verdict’ that no reasonable juror could reach a contrary decision.” Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140 F.3d 898, 905 (11th Cir.1998) (quoting Hibiscus Assoc. v. Board of Trustees, 50 F.3d 908 , 920 (11th Cir.1995)). Under this standard, the directed verdict in this, case cannot be affirmed. This record in conjunction with the directives of *1270 the Supreme Court leads, instead, to the conclusion that the question presented here is one only for the jury. The method by which the majority reaches its desired conclusion that the alleged conduct fails to present a jury question is flawed in several respects. First, that conclusion depends on an account of the alleged conduct that is inconsistent with the record. Second, to achieve that account, the majority disregards the law requiring that all incidents be considered as a whole and disaggregates the conduct at issue. Taking each alleged incident separately, the majority credits only one of the several possible inferences which could be drawn from the conduct described, and deliberately excludes from consideration major components of Mendoza’s harassment claim, inferring that being followed or stared at in the workplace can not under any circumstances contribute to a sexually harassing hostile environment. .Thus, by selectively considering the facts and choosing the inferences to be drawn from them, the majority usurps the quintessential jury function. Third, throughout this process the majority misapprehends and misstates the law of sexual harassment. Because reasonable people could differ as to the inferences to be drawn from the facts in evidence, and because the majority errs in explicating and applying the law, I dissent from the affir-mance of the directed verdict on Mendoza’s sexual harassment claim. I. THE TESTIMONY IN THIS CASE The crux of this case is whether the conduct conveyed by Mendoza’s testimony in its totality could be deemed by a reasonable jury to be objectively either (a) severe, or (b) pervasive enough to alter the conditions of her employment sufficient to create an abusive work environment. There is no question that the issue here relates not to severity but to acts which, because of their alleged frequency and connection to other acts sexual in nature, could be deemed pervasive enough to constitute a hostile environment. The standard for whether such an environment exists has been expressly defined — in quintessential jury terms' — as an environment that a reasonable person would find hostile or abusive. Instead of viewing the evidence tending to disprove the claim, the Supreme Court has told us that, “in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case.” Wilkerson v. McCarthy, 336 U.S. 53, 57 , 69 S.Ct. 413 , 93 L.Ed. 497 (1949). As Judge Arnold of the Eighth Circuit paraphrased this standard: In other words, when a motion for directed verdict or for judgment not withstanding the verdict is made, the court must assume that all of the evidence supporting the party opposing the motion is true, and must, in addition, give that party the benefit of all reasonable inferences drawn from that evidence. The case may be taken from the jury only if no rational jury could find against the moving party on the evidence so viewed. Probably this formulation will result in fewer grants of motions for directed verdict than .would result if judges were free to take cases from the jury because of what they view as very strong evidence supporting the moving party. Occasionally verdicts may be returned with which judges strongly disagree. This is a price, we think, worth paying for the jury system, which is enshrined in the Bill of Rights and sanctified by centuries of history. Dace v. ACF Indus., Inc., 722 F.2d 374, 376-77 (8th Cir.1993) (footnote omitted). Mendoza’s testimony, viewed in the light most favorable to her and with all reasonable inferences drawn in her favor, was that on a daily basis, she had to work in an atmosphere where the plant’s highest ranking executive was always after her. In 79 pages of transcript, Mendoza detailed the conduct of her supervisor throughout the year during which Page was her supervisor. In summary, she asserted that he (i) constantly followed her; *1271 (ii) continuously stared at her in a sexual manner, looking her body up and down; (iii) on two- occasions, sniffed at her groin area; (iv) on one occasion just sniffed at her; (v) rubbed up against her; and (vi) made inappropriate comments which were sexual in nature. Specifically, Mendoza testified that: From the time Mr. Page came to the Miami plant, he ahvays seemed to be wherever I was. If I was in the lunch room, he was there. If I was at a picnic table outside on a break, he was there. The man was constantly watching me and following me around and looking me up and down, whether it was face to face with me, or as I would get up from a lunch table or from the picnic table to walk away and back to the office.... He seemed to be wherever I was in the plant. He followed me not around the office, but around the hallways in the plant. 0,kay? He was at a lunch table in the lunch room. He would be at a picnic table outside. And he would look me up and down, very, in a very obvious fashion. When I was face to face with him, when I would get up and walk away from these tables and areas, I could feel him watching me up and down.... This was a constant thing. (Tr. Trn. at 24-27) (emphasis added). On cross examination, Mendoza was asked if the incidents of following were constant, or something which took place only two to four times. She replied: [N]o, that was a constant thing from the time he walked into the plant.... It was a constant thing. (Tr. Trn. at 71) (emphasis added). In addition to the staring and following, Mendoza described Page’s actions in staring and sniffing at her groin area.. She testified that while at the copy machine, I felt somebody watching me. I looked -directly to my right. He was sitting at a chair in the conference room, which is approximately 20, 25 feet away from me, at a chair at the end of the table. And he looked 'at me up and down, and stopped in my groin area and made a (indicating) sniffing motion. (Tr. Trn. at 27). Mendoza testified that another time, when in Page’s office seeking permission to leave work because of the flu, [He] turned around to his right, looked directly at me, up and down, and stopped again in the groin area, made a sniffing motion again, (indicating), like that. (Tr. Trn. at 27). He then rejected her request and when asked if she recalled the expression on his face, Mendoza said, “He was intense.... He was staring at me.... ” (Tr. Trn. at 27). The majority suggests that the sniffing was not necessarily sexually motivated or, as the majority puts it, “gender related” but could have been totally innocent conduct. 1 Indeed, it may have been innocent, and ’the jury may well have agreed with the majority’s view. However, the jury was equally entitled to believe Mendoza’s perception that it was sexually motivated, and directed at her in order to intimidate and harass: It'was obvious to me.... The man would look me up and down, stop in my groin area. He was looking right at me, directly at me. It was obvious to me, it was at me. This happened twice, stopped in the groin area and (indicating) made the sniffing. (Tr. Trn. at 34-35). She further testified to. Page’s comment on another occasion which she found offensive and consistent *1272 with the sniffing incidents, “You’re just like me, always sniffing around.” (Tr. Trn. at 75). When asked whether it could have been an innocent comment, she said that she “most certainly” thought it a sexual comment. “I have never heard a completely] innocent comment like that,” she testified. (Tr. Trn. at 75). After describing the incident in which Page rubbed his hip against her, Mendoza testified that, “I was startled. I looked over and he had a smile on his face, right, had a smile on his face, like he was enjoying himself.” (Tr. Trn. at 73). When asked if she had never put her hands on someone’s shoulders when passing them to prevent them from being startled, Mendoza responded, “I may have, but not rubbed my hips up against people.” (Tr. Trn. at 73). Mendoza testified that Page was “coming on to me, flirting with me.” (Tr. Trn. at 29). “I went into his office angry and disgusted at this.... Mr. Page turned around and I said to him, T came in here to work, period.’ And his reply to me was, ‘yeah, Pm getting fired up, too.’” (Tr. Trn. at 29). When asked whether Page’s comment — “Pm getting fired up, too”— was necessarily sexual in nature, she said, “I took those words to be his response to what I was saying to him. And he knew what I was talking about.” (Tr. Trn. at 69). Similarly, she testified that the way he smiled at her, “along with other things,” was inappropriate, (Tr. Trn. at 69), and that when she “put it all together, I realized what was going on.... He was, his advances to me were definitely sexual in nature.” (Tr. Trn. at 68). Crediting Mendoza’s account of the frequency and intensity of Page’s unrelenting stares and looks, together with her allegations of his more egregious sexual conduct, such as overtly sniffing and looking at her groin area, it simply cannot be said that, “no reasonable and fair-minded persons ... might reach different conclusions” as to whether Red Mendoza suffered sexual harassment. Of course, it is possible that a reasonable person might conclude, based on the totality of the evidence, that Mendoza’s workplace environment was neither hostile nor abusive. The jury may not have believed that the incidents occurred. The jury may have believed the alleged incidents occurred, but they may have drawn different inferences from them. Or the jury may have determined that a reasonable person would not have found the environment to be hostile. The point is that it was within the jury’s province to decide and not within an appellate court’s. This record cannot support a conclusion that “[t]he facts and inferences ... ‘so overwhelmingly favor the verdict’ that no reasonable juror could reach a contrary decision.” Bivens Gardens, 140 F.3d at 905 (quoting Hibiscus Assoc., 50 F.3d at 920). II. THE TESTIMONY MUST BE VIEWED IN ITS TOTALITY, AND NOT DISAGGREGATED INTO SEPARATE ACTS. As noted, an objectively hostile sexual environment is “an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 , 114 S.Ct. 367 , 126 L.Ed.2d 295 (1993) (emphasis added). Under the law, that means, as common sense would likewise tell us, that when deciding whether the conduct at issue is pervasive enough to constitute a sexually harassing “hostile environment,” it is the “environment” created by disparate acts which must be examined. Or, put another way, the incidents alleged must be viewed in the context of the environment they create and cannot be viewed and analyzed as separate and discrete claims based on separate and discrete incidents: [T]he analysis cannot carve the work environment into a series of discrete incidents and measure the harm adhering in each episode. Rather, a holistic perspective is necessary, keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and *1273 that the work environment created thereby may exceed the sum of the individual episodes. “A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario.” It follows naturally from this proposition that the environment viewed as a whole may satisfy the legal definition of an abusive working environment although no single episode crosses the Title VII threshold. Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1524 (M.D.Fla.1991) (quoting Andrews v. City of Philadelphia et al., 895 F.2d 1469, 1484 (3rd Cir.1990)). This Court validated this approach in holding that “[a] hostile environment claim is a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits,” making it improper to “examine each alleged incident of harassment in a vacuum.” Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503 , 1510-11 (11th Cir.1989) (holding that the district court erred in requiring plaintiff to establish a claim as to each allegation of harassment); see Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir.1998) (“Discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender.”). The Supreme Court expressed the same principle in Harris, 510 U.S. at 23 , 114 S.Ct. 367 , saying that “whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Most recently, it was amplified by Justice Scalia writing for a unanimous court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 118 S.Ct. 998, 1003 , 140 L.Ed.2d 201 (1998): The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive. Although the majority acknowledges the Supreme Court’s admonition that courts must look to the “totality of the circumstances,” it repeatedly fails to adhere to the legal requirement that it is the context in its totality and not each incident in isolation that courts are required to examine when considering Title VII claims. To reduce the impact of the evidence in support of Mendoza’s hostile environment claim, the majority first separately considers Mendoza’s testimony that she was constantly followed and then simply eliminates consideration of that testimony. The majority suggests that following and staring are behaviors categorically exempt from the reach of Title VII because they are ambiguous in meaning, and somehow would create a lower “baseline” for sexual harassment claims. The majority then concludes that, “aside from Page’s ‘constant’ folloiving and staring, the conduct asserted by Mendoza was not frequent,” and that “frequency of the harassing conduct — is also for the most part lacking.” (Maj. Op. at 1249 (emphasis added)). There is no question that being followed may not be actionable. On the other hand, it may very well constitute a violation of Title VII. Such a determination must depend on the circumstances. The act of walking behind someone cannot be determined by itself to be either bad or good, malicious or benign, actionable or not. The circumstances necessarily dictate how *1274 it must be characterized. Can it be characterized as simply two people walking serially toward the same destination? Can it be characterized, as the majority suggests, simply as an employer “keeping an eye” on an employee? Or can it be characterized as stalking? 2 The various possibilities illustrate the necessity of examining allegations of being followed in the context of other incidents alleged. The claim here is not one based on simply being followed. From Mendoza’s testimony, were it to be credited, it is a claim of being “constantly” followed — which in any lexicon can only mean all the time and, certainly, frequently- — -by someone who had sniffed at hpr groin area, leered at her by looking her “up and down,” made innuendos (“I’m getting fired up”), and, when the opportunity arose, rubbed his hip against hers. The characterization of Mendoza’s claim as one based on the “everyday observation of fellow employees” and as “a natural and unavoidable occurrence” arising out of “people work[ing] together in close quarters,” is one way of viewing the evidence. (Maj. Op. at 1248). As the majority points out, another credible interpretation is that following or staring “can betray romantic .or sexual attraction.” (Id.). Perhaps Mendoza’s supervisor was indeed only “keeping] an eye on” her. (Id.). An equally reasonable but unmentioned possible interpretation, however, is that the staring and following were intended to harass, humiliate, or intimidate. The majority errs in crediting any one interpretation over the others, and does so, among other reasons, because it fails to view the staring and following in the context of the surrounding testimony. In making its choice of inferences from selected facts, the majority fails to “look only to the evidence and reasonable inferences which tend to support the case of a litigant....” Wilkerson, 336 U.S. at 57 , 69 S.Ct. 413 . III. REQUIREMENTS OF A SEXUAL HARASSMENT CLAIM In addition to failing to view the facts as a whole, the majority compounds its mistakes by misstating and misapplying the law of sexual harassment. A. The Purposes of Title VII The Supreme Court has repeatedly recognized that the purpose of Title VII is to strike at the disparate treatment of men and women in employment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986). Employees of either gender may experience discrimination or harassment in a variety of different forms, one of which is unwelcome sexual advances. 3 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e~ 2(a)(1). The Court in Meritor stated that this language was “not limited to ‘economic’ or ‘tangible’ discrimination,” but that it “evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” 477 *1275 U.S. at 64 , 106 S.Ct. 2399 (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 , 707 n. 13, 98 S.Ct. 1370 , 55 L.Ed.2d 657 (1978)). The Court went on to say that Title VII is violated “[w]hen 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.’ ” Harris, 510 U.S. at 21 , 114 S.Ct. 367 (quoting Meritor, 477 U.S. at 65, 67 , 106 S.Ct. 2399 ). As Justice Ginsburg noted in her concurring opinion in Harris : The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Harris, 510 U.S. at 25 , 114 S.Ct. 367 ; see also Andrews, 895 F.2d at 1485 (“[T]he offensive conduct is not necessarily required to include sexual overtones in every instance.”); Lipsett v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir.1988) (“[verbal attack,] although not explicitly sexual, was nonetheless charged with anti-female animus, and therefore could be found to have contributed significantly to the hostile environment”); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.1988) (“Intimidation and hostility toward women because they are women can obviously result from conduct other than sexual advances.”); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987) (rejecting narrow definition of sexual harassment that requires predicate acts to be clearly sexual in nature); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir.1985) (“We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of the employee must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones. And we decline to do so now.”); Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683 , 1769-74 (1998). The correct question in a sexual harassment case is whether the conduct, sexual or not, ridicules women, treats them as inferior, or is intended to humiliate or intimidate them such that they are subjected to unequal treatment in the workplace. The Supreme Court has stated that the answer to this question is not, “and by its nature cannot be,” subject to “a mathematically precise test.” Harris, 510 U.S. at 22 , 114 S.Ct. 367 . The majority ignores the question and relies exclusively on a list of four factors which, in fact, were included by Justice O’Connor in Harris as a non-exhaustive list: But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. at 23 , 114 S.Ct. 367 (emphasis added). Assuming there are reasonable people who, while crediting Mendoza’s version of the facts, would not think that staring at a woman’s groin area while making sexually suggestive sniffing noises is degrading, humiliating, and/or intimidating, it seems beyond peradventure that many reasonable people would indeed find it to be so. B. Mendoza Sufficiently Alleged Impairment To Her Job Performance In addition, the majority errs in contending that Mendoza’s claim must fail because she has not demonstrated any impairment of her job performance. As Justice Ginsberg noted in Harris : To show such interference [with an employee’s work performance], “the plaintiff need not prove that his or her tangible productivity has declined as a result *1276 of the harassment.” It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to “ma[k]e it more difficult to do the job.” Davis concerned race-based discrimination, but that difference does not alter the analysis.... 510 U.S. at 25 , 114 S.Ct. 367 (quoting Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (6th Cir.1988)). Title VII “comes into play before the harassing conduct leads to a nervous breakdown. A discrimi-natorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” Id. at 22, 114 S.Ct. 367 . In response to Page’s treatment, Mendoza complained to him: “I came in here to work, period” (Tr. Trn. at 29), and relayed her state of mind as a result of Page’s conduct: “I was embarrassed, I was humiliated, I felt degraded.” (Tr. Trn. at 35). If credited by a jury, the totality of Page’s conduct can create an inference that her gender was the motivating impulse for his behavior and strikes at the core of Mendoza’s entitlement to a workplace free of discriminatory animus. In rejecting an assertion that the consequences of a hostile environment must be so severe as to affect one’s psychological health, the Supreme Court stated: [T]he District Court erred in relying on whether the conduct “seriously affect[ed] plaintiffs psychological well-being” or led her to “suffe[r] injury.” Such an inquiry may needlessly focus the factfinder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious. Hams, 510 U.S. at 22 , 114 S.Ct. 367 (internal citation omitted). Based on these Supreme Court pronouncements, Mendoza has presented sufficient evidence for a jury to consider her claim under Title VII. C. The Majority “Polices the Baseline” in Contravention of Congress’ Direction At the heart of the majority’s opinion is the view that the incidents endured by Mendoza simply weren’t that bad, that she should just put up with them rather than bring a Title VII claim. The majority contends that directing a verdict for the defendant in this case will promote its goal of “polie[ing] the baseline for hostile environment claims.” (Maj. Op. at 1244). In support of the majority’s project, the majority cites a number of cases which it claims “delineate a minimum level of severity or pervasiveness” necessary for Title VII violations. (Id. at 1246). In so doing, the majority attempts to compare various lists of allegedly harassing conduct with that alleged by Mendoza. Again, such an analysis ignores our duty to consider the incidents not in isolation or as a laundry list, but in context and in light of the testimony as a whole. To rely on a string cite of cases- — several of which reached rather dubious results — is a serious mistake because the majority continues to eliminate context as a criterion. Each of these cases must be taken on the totality of their unique facts. These cases, when viewed in conjunction with the many other cases where the “bar” is as low or lower, 4 underscore that this is a matter for *1277 juries and not judges to decide as a matter of law. The majority offers no substantiation for the claim — which underlies its argument— that juries will be unable to distinguish sexually threatening staring and following from “innocent looking” or merely crossing paths with a coworker. The Supreme. Court does not appear to entertain the same doubts. Justice Scalia explained in Oncale that the requirement that allegedly harassing behavior must create “an environment that a reasonable person would find hostile or abusive” is “sufficient to ensure that courts and juñes do not mistake ordinary socializing in the workplace ... for discriminatory ‘conditions of employment.’ ” Oncale, 118 S.Ct. at 1003 (emphasis added) (internal quotation marks omitted). This case comes to us for review of the district court’s grant of a Rule 50 motion for judgment as a matter of law. “A motion for a directed verdict, or for a judgment notwithstanding the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a question of law only: Whether there is any evidence which, if believed, would authorize a verdict against movant. The trial judge in considering those motions does not exercise discretion, but makes a ruling of law....” Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir.1949) 5 (emphasis added). In contravention of this clearly articulated judicial role, the majority repeatedly engages in its own assessments of the credibility and value of Mendoza’s testimony. For instance, the majority concludes that Page’s statement that he was “getting fired up” had no “sexual or other gender-related connotation.” (Maj. Op. at 1248). Moreover, the majority concludes that none of the conduct of which Mendoza complained was humiliating (Id. at 1249)— in direct contradiction to her sworn statement that she in fact felt “humiliated” (Tr. Trn. at 35). Further,..the'majority dismisses Mendoza’s allegations that Page harassed her by constantly following her and staring at her, preferring instead to infer that Page “simply showed up when Mendoza happened to be in the hallways, in the lunch room, or at the picnic table outside.” (Maj. Op. at 1250). These explicit credibility determinations and factual interpretations are clearly far outside this Court’s appropriate role at this stage of Mendoza’s litigation. Indeed, it is our duty “to review all of the evidence in the light most favorable to, and with all reasonable inferences drawn in favor of’ Mendoza. Bivens, 140 F.3d at 905 . By making these determinations and drawing these inferences, the majority has usurped the traditional role of the rightful finder of fact. In the Civil Rights Act of 1991, Congress specifically amended Title VII. Having from its inception in 1964 charged the *1278 court with the task of deciding whether actions alleged by discrimination plaintiffs constituted a violation of Title VII, Congress changed its mind in 1991 and specifically provided all plaintiffs seeking compensatory or punitive damages with the right to have his or her case heard before a jury. 42 U.S.C. § 1981a(c)(l). The mistrust of juries evidenced by the majority is at odds with the specific directive of Congress that the jury is to decide whether gender discrimination has occurred in the workplace. In concluding that plaintiffs seeking compensatory and punitive damages should have the right to seek a jury determination of their claims, Congress reasoned that “[t]he jury system is the cornerstone of our system of civil justice, as evidenced by the Seventh Amendment’s guarantee. Just as they have for hundreds of years, juries are fully capable of determining whether an award of damages is appropriate and if so, how large it must be to compensate the plaintiff adequately and to deter future repetition of the prohibited conduct.” H.R.Rep. No. 102-40(1), 72 (1991) (footnote omitted), reprinted in 1991 U.S.C.C.A.N. 549, 610. 6 Civil juries traditionally have been charged with the task of deciding all questions of fact where reasonable people might credit different versions of the facts presented, thereby differing as to the proper resolution of the ultimate question in the case. As in other contexts wherein the jury is charged with applying a “reasonable man” standard, allowing jurors to decide the question of reasonableness as to Title VII issues is precisely what Congress intended. Cf. Smith v. United States, 431 U.S. 291, 302 , 97 S.Ct. 1756 , 52 L.Ed.2d 324 (1977) (“It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness .... ”); id. (“A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes ....”) (internal quotation marks omitted). Because I believe the majority has not only misinterpreted but misstated the law of sexual harassment and has arrogated to itself the jury function in violation of our legal precedent and Title VII’s specific entitlement to a jury’s verdict, I dissent. . Of course, the majority is unable to evaluate what Mendoza described through her actions before the jury as there is no videotape of the trial testimony. An appellate court is unable to observe the witnesses’ body language, the tone of the witnesses' testimony, and the manner in which the testimony was given. The transcript says' only "indicating” as to the sniffing motion. The jury is the only fact finding body with knowledge of Mendoza’s testimony about Page’s expression, demeanor, and what her gesture indicated — an exaggerated lewd' sniffing, a mere allergy-induced sniffle, or something else. . Indeed, Mendoza’s allegations could constitute the crime of stalking as it is defined in most jurisdictions. For example, Florida's statute criminalizes any repeated following, whether or not accompanied by a threat: "Any person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking, a misdemean- or of the first degree....” Fla. Stat. § 784.048 (3) (West 1992). . As Justice Scalia wrote for a unanimous court in Oncale : [Hjarassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. 118 S.Ct. at 1002 . . See Williams v. General Motors, 187 F.3d 553 (6th Cir.1999) (overturning the district court's dismissal of plaintiff’s complaints of foul language, mean and annoying treatment by co-workers, sexually related remarks, on grounds that “the district court disaggregated the plaintiff's claims ... which robbed the incidents of their cumulative effect”); Rorie v. UPS, Inc., 151 F.3d 757, 762 (8th Cir.1998) (finding case “borderline” but holding allegations that supervisor "pat[ted] female employ *1277 ee on the back, brush[ed] up against her, and told her she smells good” constituted actionable sexual harassment); Howard v. Burns Bros., Inc., 149 F.3d 835 , 840 (8th Cir.1998) (sexual innuendos and brushing up against co-employees constituted actionable harassment); Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir.1998) (“Evaluation of ambiguous acts such as ... [giving a female employee a teddy bear, directing her to go to lunch with him, inviting her to go to Atlantic City with him] in this case presents an issue for the jury.”); Sandra Barna v. City of Cleveland, 172 F.3d 47 (6th Cir.1998) (affirming the district court's denial of a directed verdict motion because the “jury was free to conclude” that plaintiff was telling the truth regarding harassment including a constant stream of sexual comments, requests, and advances occurring on a daily basis); Carrero v. New York City Hous. Auth., 890 F.2d 569 , 578 (2d Cir.1989) ("emphatically” rejecting defendant's argument that "[harasser's] conduct, though not a paradigm of modern inter-gender workplace relations, was not pervasive enough to trigger relief, ... and federal law does not punish 'trivial behavior’ consisting of only 'two kisses, three arm strokes,’ several degrading epithets and other objectionable — but ultimately harmless — conduct”). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981. . The legislative history of the Civil Rights Act of 1991 is extremely limited. Most of the discussion that led to the compromise statute took place in closed door discussions between the Bush White House and Congressional leaders. See Douglas C. Herbert & Lani Schweiker Shelton, A Pragmatic Argument Against Applying the Disparate Impact Doctrine in Age Discrimination Cases, 37 S. Tex. L.Rev. 625, 652 n. 147 (1996). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492622. Public record. Not legal advice.