Tyler Copeland v. Georgia Department of Corrections

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13073

____________________

TYLER M. COPELAND,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF CORRECTIONS,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:20-cv-00057-JRH-BKE

____________________

Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.

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2 Opinion of the Court 22-13073

JILL PRYOR, Circuit Judge:

Tyler Copeland is a transgender man who, for three years,

was a sergeant at Rogers State Prison in Georgia. From the time

Copeland came out as transgender at work until he filed this suit,

Copeland endured constant and humiliating harassment. Cowork-

ers called Copeland “baby girl.” They went out of their way to call

him “ma’am” on prison-wide radio communications and in front

of inmates. They jokingly speculated he must have a dildo in his

pants. They snickered, pushed him, and followed him. Danger-

ously, given his position and need to command respect from in-

mates, they disobeyed and undermined him. And this harassment

came from all fronts—supervisors, subordinates, and peers alike—

despite his repeated complaints to his supervisors, prison manage-

ment, and human resources personnel.

Copeland sued, bringing three claims under Title VII of the

Civil Rights Act of 1964. The district court granted summary judg-

ment to Copeland’s employer, the Georgia Department of Correc-

tions (“GDOC”). In part, the district court concluded that

Copeland’s Title VII hostile work environment claim failed be-

cause the harassment he suffered was not sufficiently severe or per-

vasive. We disagree and vacate the summary judgment on that

claim. We affirm the district court’s judgment on Copeland’s other

claims.

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I. BACKGROUND

Tyler Copeland became an employee of GDOC a decade

ago. 1 A year after starting, he began working at Rogers State Prison,

a medium-security prison located in southeast Georgia. Two years

later, GDOC promoted Copeland to the rank of sergeant at Rogers.

Copeland is a transgender man, meaning that he was as-

signed the sex of female at birth, but he consistently and persis-

tently identifies as a man. See Glenn v. Brumby, 663 F.3d 1312, 1314

(11th Cir. 2011). While working at Rogers, he began the process of

medically and socially transitioning to align with his gender iden-

tity. He underwent hormone replacement therapy, obtained a legal

name change, and decided to live openly as a man. This decision

required him to disclose his gender identity at work.

To discuss his transition, he met with Becky Johnson, a hu-

man resources (“HR”) employee at Rogers. He gave Johnson pa-

perwork showing his name change, but she told him that he would

need to furnish a birth certificate instead—one that “reflected [his]

name change and gender change.” Doc. 46-3 at 31. 2 Copeland suc-

cessfully amended his birth certificate and gave it to Johnson. Again

she told him to wait, this time for a meeting with Betsy Thomas,

the HR director. Heeding Johnson’s request, he refrained from

1 Because the district court granted summary judgment against Copeland, we

consider the record in the light most favorable to him, meaning we “credit

[Copeland’s] version if there is any evidence to support it.” Feliciano v. City of

Miami Beach, 707 F.3d 1244, 1248 (11th Cir. 2013).

2 “Doc.” numbers refer to the district court’s docket entries.

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4 Opinion of the Court 22-13073

telling anyone at work that he had changed his name to Tyler and

planned to live as a man, consistent with his gender identity.

Things went downhill from there. Thomas called Copeland

and asked if he had “had the surgery” or planned to have it. Id. at

113 (internal quotation marks omitted). He told Thomas it was

“nobody’s business.” Id. (internal quotation marks omitted). Mean-

while, he could hear people laughing on the other end of the call—

a call he had assumed would be private. Copeland left the call with

the impression that he “was now a laughing matter in the [HR] De-

partment.” Id.

Following the call, Thomas convened two in-person meet-

ings: one with Copeland and one with the entire Rogers staff. At

the first meeting, Thomas advised Copeland not to use the men’s

bathroom. At the second meeting, with Copeland present,

Thomas, the warden, and the deputy warden addressed the staff,

informing them of Copeland’s transgender status. The staff was

told to refer to Copeland using either male pronouns or by his title

and last name: Sergeant Copeland. And Copeland was told that he

should report any issues with coworkers to HR or to his supervi-

sors.

According to Copeland, that meeting marked “the begin-

ning of the [u]nlawful and sexual harassment” he “experience[ed]

at work.” Id. In the year that followed, coworkers of all stripes re-

peatedly harassed Copeland.

Much of this harassment was remarkably unconcealed. Rog-

ers staff operated a prison-wide radio system; all employees at the

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facility carried radios and could hear transmissions on the system.

After the meeting, Copeland’s coworkers would finish their radio

transmissions to him by calling him “ma’am,” such that “the whole

institution [could] hear it.” Id. at 38 (internal quotation marks omit-

ted); see also id. at 40 (“It began after that meeting.”). They did this

even though, as a sergeant, Copeland had a call sign on the radio

system, so there was never any need to address Copeland with a

gendered pronoun or an honorific.3 These comments occurred

“[o]n a daily basis”—three or four times each day —and came from

Copeland’s “[s]ubordinates” and “supervisors” alike. Id. at 39. One

time, after a supervisor addressed him over the radio as a woman,

Copeland heard subordinates down the hall laughing at him.

Off the radio, Copeland encountered gossip and harassing

remarks throughout Rogers. One coworker commented that

Copeland must have a “dildo” in “her” pants. Doc. 53-2 at 3. Others

called him “that” and “it.” Doc. 46-3 at 90. His direct supervisor

taunted him and called him “baby girl.” Id. at 115. Cafeteria staff

members joked about transgender people and their genitalia in

front of inmates. A nurse on the medical staff told Copeland that

“she was not going to call [him] sir” because “that wasn’t who [he]

was.” Id. at 92 (internal quotation marks omitted). And Copeland

knew of similar conversations taking place among the prison’s

3 For example, Copeland’s call sign at one point was L1B. Staff understood that

“L1B” was Copeland. So an employee trying to speak to or about Copeland

on the radio had no need to use “ma’am” or “sir” or even “Tyler” or “Sergeant

Copeland.”

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maintenance staff. Often, and contrary to Thomas’s directive at the

staff meeting that staff refer to Copeland as Sergeant Copeland or

use male pronouns, Copeland’s supervisors called him “ma’am.”

They also commented on his gender in front of subordinates. In-

mates joined in, “mak[ing] inappropriate comments” to Copeland

about his gender identity. Doc. 53-2 at 3. All told, Copeland identi-

fied 34 coworkers who participated in harassing him.

Occasionally, these incidents escalated. During an overnight

shift, as Copeland was entering the prison, another officer, Sheila

Holland, blocked the doorway. Holland confronted Copeland, tell-

ing him, “[W]e can fight.” Doc. 46-3 at 118. She told him that she

was offended when he corrected colleagues who called him

“ma’am” or “she” “because [she was] proud to be a woman.” Id.

(internal quotation marks omitted). A few days after, late in the

evening, Holland “pushed” Copeland as he exited Rogers, drawing

laughter from another sergeant. Id.; see also Doc. 46-5 at 55 (describ-

ing Rogers surveillance video showing Holland “pushing Copeland

from behind” (capitalization altered)). As he walked to his car, she

“circled . . . around” him in an “armed perimeter vehicle” while

carrying a pistol. Doc. 46-3 at 118. She then “parked behind” him.

Id. at 95. Copeland feared for his life.

Copeland repeatedly tried to stop the harassing conduct. For

instance, he spoke with medical, cafeteria, and maintenance staff,

seeking to end conversations in which they joked about him spe-

cifically and transgender people generally. After HR staff called

Copeland “ma’am” in front of new cadets, Copeland explained to

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the cadets that they should instead refer to him as Sergeant

Copeland or with male pronouns. Id. at 43. And he regularly had

“sidebar conversations” with those who misgendered him. Id. at

44.

In addition to addressing the harassment directly,

Copeland—consistent with Thomas’s instructions—reported con-

cerns to supervisors and HR. He told his shift supervisors about the

“constant harassment.” Id. at 114. He spoke to HR manager John-

son when he felt his supervisors failed to take his concerns seri-

ously. He contacted GDOC’s “Employee Assistance Program”

hoping to get access to alternative dispute resolution, therapists,

and mediators, but he “never heard back.” Id. He met with an HR

assistant, Tracy Gay, to “reiterat[e] . . . concerns of harassment in

the workplace.” Id. at 115. He met with the warden. He sought—

but did not receive—a meeting with the deputy warden. In short,

he raised his concerns to Rogers’s entire chain of command.

Copeland persisted for almost a year, but his efforts to ad-

dress the harassment he faced at work failed. After he asked officers

on his shift to use male pronouns or call him Sergeant Copeland,

one supervisor criticized him for how he addressed his shift, warn-

ing that one of his officers could file a grievance against him. When

Copeland met with other supervisors, they told him to give

coworkers “more time to adjust.” Id. (internal quotation marks

omitted). After he raised concerns about his supervisors’ handling

of his HR complaints, HR suggested a meeting with the warden,

but nobody followed up with Copeland and “[n]o meeting

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8 Opinion of the Court 22-13073

occurred” until nearly four months later, when he met with the

warden after once again complaining to HR. Id. Meanwhile, the

harassment continued largely unabated.

Once the harassment began, Copeland’s working conditions

declined in other ways, too. He faced insubordination from officers

he supervised. He was reassigned shifts more often than other

coworkers, including being moved to the night shift —a less desir-

able posting. His supervisors refused to let him miss work to attend

longstanding doctor’s appointments. And he was not permitted to

take a “promotional assessment test”—to allow him “more time”

to prepare following a brief medical leave. Id. at 117–18.

Copeland began to seek other work, both within GDOC and

elsewhere. Over the course of three years, he submitted “four or

five” applications to be promoted to lieutenant at Rogers. Id. at 59.

Within the broader GDOC system, he attempted to transfer to po-

sitions with Treutlen Probation Center and with GDOC investiga-

tions. Outside of GDOC, he applied for positions with the Federal

Bureau of Prisons, the Georgia Department of Juvenile Justice, and

Georgia Southern University’s police department. Each prospec-

tive employer rejected him, and none gave him a reason why. He

did not know who made hiring decisions for each position. But he

knew that some of these potential employers contacted individuals

at Rogers for character references. He feared that these references

may have played a role in his inability to obtain a promotion or

transfer.

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After the incident in which Holland pushed, confronted, and

later menaced Copeland, he emailed his captain, the deputy war-

den of security, and the warden about the incident. A few days

later, a GDOC investigator, Jessica Moseley, contacted him to ar-

range an interview. He described to Moseley the incident with Hol-

land, but he felt “the interview was not about the incident but ra-

ther finding a way to get [him] to incriminate [him]self.” Id. at 119.

Moseley conducted additional interviews with Holland and other

Rogers personnel, reviewed surveillance video of Holland’s en-

counter with Copeland, and prepared a report. Even though the

video showed Holland “pushing Copeland from behind,” Doc. 46-

5 at 55 (capitalization altered), Moseley’s report concluded that

Copeland’s allegations of sexual harassment and assault against

Holland were “not sustained,” id. at 4 (emphasis omitted).

At that point, Copeland lost his “faith in the internal affairs

system” at GDOC. Doc. 46-3 at 48. Armed with a list he had been

keeping of “major incidents that took place” at Rogers, id. at 37, he

found a lawyer and filed a discrimination charge with the Equal

Employment Opportunity Commission (“EEOC”). In the charge,

he alleged that since the initial meeting at which he had come out

as transgender, he had been subjected to “constant harassment”

and “disparate treatment by [GDOC],” in violation of Title VII.

Doc. 53-2 at 4 (emphasis omitted). The EEOC dismissed

Copeland’s charge of discrimination and notified him of his right

to sue. Shortly after, GDOC promoted him to lieutenant.

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Copeland sued GDOC in the Southern District of Georgia,

bringing three claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. 4 Count I alleged that GDOC subjected

Copeland to a hostile work environment because of his

transgender status, violating 42 U.S.C. § 2000e-2(a)(1). Count II al-

leged that GDOC failed to promote Copeland because of his

transgender status, violating 42 U.S.C. § 2000e-2(a)(1). And

Count III alleged that GDOC retaliated against Copeland for en-

gaging in a protected practice—opposing sex discrimination—vio-

lating 42 U.S.C. § 2000e-3(a).

GDOC moved for summary judgment, which Copeland op-

posed. The district court granted GDOC’s motion on all counts.

On Count I, the district court concluded that the harassment

Copeland suffered was not objectively “severe or pervasive,” so he

failed to satisfy an element of this claim. Doc. 63 at 17; see Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (explaining that conduct

must be “sufficiently severe or pervasive to alter the conditions of

the victim’s employment” to be actionable under Title VII (internal

quotation marks omitted)). It addressed Counts II and III—failure

4 Copeland also brought one claim under the Fair Labor Standards Act,

29 U.S.C. § 201 et seq., alleging that GDOC failed to pay him overtime when

he worked over 40 hours per week. The district court granted summary judg-

ment to GDOC on this claim based on sovereign immunity. Because

Copeland does not challenge that ruling in his appellate brief, we address this

claim no further. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022)

(en banc) (“[I]ssues not raised in the initial brief on appeal are deemed aban-

doned.”).

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to promote and retaliation—together. It granted GDOC summary

judgment on both counts because it concluded that Copeland

could not “establish a causal connection between [Copeland’s] pro-

tected activity and [GDOC’s] decision not to promote” him. Id. at

21.

This is Copeland’s appeal.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo, applying the same legal standards that bound the district

court. Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022).

We affirm summary judgment only when the moving party

“shows that there is no genuine dispute as to any material fact

and . . . is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “[W]hen determining whether there is a genuine issue of ma-

terial fact[,] . . . we do not weigh conflicting evidence or make cred-

ibility determinations to resolve factual disputes.” Patterson, 38

F.4th at 1350. Instead, we give the nonmovant the benefit of his

evidence, “credit[ing] the nonmoving party’s version” of events,

even if it is supported “solely by the testimony of a party.” Feliciano

v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (empha-

sis omitted) (internal quotation marks omitted).

We may affirm the district court’s judgment on any ground

supported by the record. Thomas v. Cooper Lighting, Inc., 506 F.3d

1361, 1364 (11th Cir. 2007).

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III. ANALYSIS

Copeland argues that the district court erred when it

granted summary judgment to GDOC on his three Title VII

claims. We agree in part. The district court erred when it con-

cluded—on the summary judgment record—that Copeland had

not suffered severe or pervasive harassment. We therefore vacate

the summary judgment in GDOC’s favor on Count I. We otherwise

affirm.

A. Hostile Work Environment

“[F]ew pieces of federal legislation rank in significance with

the Civil Rights Act of 1964.” Bostock v. Clayton Cnty., 140 S. Ct.

1731, 1737 (2020). Title VII of the Act makes it unlawful for a cov-

ered employer to “discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion, sex, or na-

tional origin.” 42 U.S.C. § 2000e-2(a)(1). This provision prohibits

“requiring people to work in a discriminatorily hostile or abusive

environment.” Harris, 510 U.S. at 21.

To prevail on a hostile work environment claim, we require

a plaintiff to prove five elements: (1) he “belongs to a protected

group”; (2) he was “subject to unwelcome harassment”; (3) the har-

assment was “based on a protected characteristic”; (4) the harass-

ment was “sufficiently severe or pervasive to alter the conditions

of” his employment; and (5) his employer was “responsible for” the

hostile work environment. Bryant v. Jones, 575 F.3d 1281, 1296 (11th

Cir. 2009). Only the fourth element is at issue here. GDOC does

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not argue that Copeland—a transgender man who was harassed

about his gender after coming out at work—has failed to satisfy the

first three elements. Wisely so: discrimination against transgender

individuals like Copeland is discrimination “because of sex.” Bos-

tock, 140 S. Ct. at 1743. And the district court did not address the

fifth element, GDOC’s responsibility; it granted GDOC summary

judgment on the sole basis that Copeland failed to show severe or

pervasive harassment.

The severe-or-pervasive element ensures that a hostile work

environment claim remains faithful to the text of Title VII. It makes

actionable only a work environment sufficiently suffused with “in-

timidation, ridicule, and insult . . . to alter the conditions of the vic-

tim’s employment.” Harris, 510 U.S. at 21 (internal quotation

marks omitted). This standard does not require a plaintiff to suffer

a “serious effect on [his] psychological well-being” nor even a “tan-

gible effect[]” on his job performance before suing. Id. at 20, 22. But

nor does it permit Title VII to operate as a “civility code for the

American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998). Instead, it charts “a middle path between making

actionable any conduct that is merely offensive and requiring the

conduct to cause a tangible psychological injury.” Harris, 510 U.S.

at 21.

The severe-or-pervasive element has two subrequirements:

one subjective and the other objective. Bryant, 575 F.3d at 1297. To

satisfy the subjective requirement, a plaintiff must “subjectively

perceive[]” the hostile work environment “to be abusive.” Miller v.

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14 Opinion of the Court 22-13073

Kenworth of Dothan, 277 F.3d 1269, 1276 (11th Cir. 2002) (internal

quotation marks omitted). The district court concluded on the

summary judgment record that Copeland satisfied the subjective

requirement, and GDOC does not challenge that conclusion on ap-

peal. 5 Where Copeland’s claim failed (and where the parties focus

their attention) is on the objective component, which requires a

plaintiff to show “an environment that a reasonable person would

find hostile or abusive”—that is, one where severe or pervasive har-

assment of the victim occurs. Id. (internal quotation marks omit-

ted).

We consider four factors to determine whether harassment

of an employee meets this objective requirement: (1) its frequency,

(2) its severity, (3) whether it is “physically threatening or humili-

ating,” and (4) whether it “unreasonably interferes with . . . job per-

formance.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.

1999) (en banc). Although these factors guide our inquiry, they are

neither elements nor requirements. See Bryant, 575 F.3d at 1297

5 Even if GDOC had challenged it, we would agree with the district court that

a reasonable jury could conclude that Copeland “subjectively believed the

conduct at the prison” was abusive. Doc. 63 at 13. At various times Copeland

“was in fear [for his] life,” Doc. 46-3 at 118, and perceived that his coworkers’

actions put “his safety [at] exceptional risk,” Doc. 53-2 at 3. He made numer-

ous complaints over the course of many months to his supervisors regarding

what he perceived as constant harassment. And he filed an EEOC charge of

discrimination, as well as this lawsuit. Taken together, this evidence easily sat-

isfies Copeland’s summary judgment burden of showing that he “subjectively

perceive[d]” his work environment as “abusive.” Miller, 277 F.3d at 1276 (in-

ternal quotation marks omitted).

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(“[T]he objective element is not subject to mathematical precision

. . . .”). Instead, our task is to “determine under the totality of the

circumstances whether the harassing conduct . . . alter[ed] the

terms or conditions of the plaintiff’s employment.” Mendoza, 195

F.3d at 1246. This inquiry is highly contextual. See Oncale, 523 U.S.

at 81–82 (“The real social impact of workplace behavior often de-

pends on a constellation of surrounding circumstances . . . .”). Ac-

cordingly, as the Supreme Court has emphasized, “‘no single fac-

tor’ is necessary to satisfy the objective inquiry of a hostile work

environment claim.” Fernandez v. Trees, Inc., 961 F.3d 1148, 1155

(11th Cir. 2020) (quoting Harris, 510 U.S. at 23); see also Miller, 277

F.3d at 1276 (explaining that “focusing on [a] single factor . . . loses

sight of the totality of the circumstances approach”).

Thus, for example, harassment may violate Title VII with-

out interfering with an employee’s performance. Fernandez,

961 F.3d at 1155. And infrequent but severe instances of harass-

ment may support a claim. See Adams v. Austal, U.S.A., LLC,

754 F.3d 1240, 1254 (11th Cir. 2014) (“Although his supervisor’s

carving was an isolated act, it was severe.”) The same goes for fre-

quent but less severe harassment. See Reeves v. C.H. Robinson World-

wide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc) (“Either se-

verity or pervasiveness is sufficient to establish a violation of Title

VII.” (emphasis in original)).

Joined by the United States as amicus curiae, Copeland ar-

gues that the district court erred when it decided that he failed to

present evidence from which a reasonable jury could conclude that

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16 Opinion of the Court 22-13073

the harassment he faced was sufficiently severe or pervasive to

meet this test. We agree with Copeland and the United States. We

discuss in turn the application of each factor and then consider the

totality of the circumstances.

1. The Harassment Was Frequent.

First, frequency. Our precedents, although they guide us, es-

tablish no “magic number” of instances of harassment sufficient to

qualify as frequent. Miller, 277 F.3d at 1276 (internal quotation

marks omitted). In the past, we have treated 15 instances of harass-

ment in four months as “not infrequent,” Johnson v. Booker T. Wash-

ington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000), “more

than 10” specific instances in two months as “frequent,” Fernandez,

961 F.3d at 1153, and five instances over an 11-month period as “too

infrequent,” Mendoza, 195 F.3d at 1250. But wherever the boundary

may lie, a jury crediting Copeland’s testimony could find that his

harassment well surpassed it.

Copeland identified 34 individuals he says harassed him at

work. In his deposition, he described how each of these individuals

participated in his harassment. He identified a list of instances of

harassment he prepared that spans seven typed pages. And, signifi-

cantly, he testified that the radio harassment he experienced oc-

curred “daily”—“three or four” times each day for at least a year.

Doc. 46-3 at 39, 102. Undoubtedly, conduct that occurs daily (even

over a shorter span of time) is frequent. See Miller, 277 F.3d at 1276.

The district court dismissed as “conclusory” Copeland’s tes-

timony that his coworkers regularly harassed him over the radio.

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Doc. 63 at 15. It said that Copeland’s testimony about daily radio

harassment did not match up with the “enumerated occurrences”

on Copeland’s seven-page list. Id. The district court thus limited its

analysis to 17 incidents it identified on the list.

We have cautioned district courts against discounting testi-

mony in this way at the summary judgment stage. See Fernandez,

961 F.3d at 1153–54 (rejecting defendant’s argument that plaintiff’s

testimony that he was harassed “nearly every day was conclusory”

(internal quotation marks omitted)). In Feliciano, we reversed the

district court, which had rejected a plaintiff’s testimony as conclu-

sory. 707 F.3d at 1253 We explained that “a plaintiff’s testimony

cannot be discounted on summary judgment unless it is blatantly

contradicted by the record, blatantly inconsistent, or incredible as

a matter of law, meaning that it relates to facts that could not have

possibly been observed or events that are contrary to the laws of

nature.” Id.

Copeland’s testimony is none of these things. He never con-

tradicted himself. He maintained throughout his deposition that

the radio harassment occurred “constantly” or “on a daily basis.”

Doc. 46-4 at 44, 57; see also id. at 37 (“constant” and “daily basis”),

39 (“daily basis”), 102 (“three or four times” daily). Nor was his tes-

timony undermined by other parts of the record, as the district

court supposed. Although Copeland did not catalog the radio har-

assment in his contemporaneous list, he explained in his deposition

that the list contained only “major incidents.” Id. at 37. He testified

that he “did not include” the radio harassment in the list because it

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18 Opinion of the Court 22-13073

was “constant” and documenting it would have been “tedious.” Id.

And given that he identified 34 individuals who he says participated

in harassing him and that he frequently complained to HR and his

superiors, it is not incredible that he suffered daily harassment. By

discounting Copeland’s testimony about the frequency of the har-

assment he faced, the district court improperly denied him the ben-

efit of his evidence at the summary judgment stage. When we con-

sider this testimony, we easily conclude that a jury crediting

Copeland’s evidence could find that the harassment Copeland

faced was frequent.

2. The Harassment Was Severe.

Second, we turn to severity. Considering factors our circuit

has traditionally endorsed, we conclude that Copeland has put for-

ward evidence sufficient to enable a reasonable jury to conclude

that the harassment was severe. A reasonable jury could find that

the harassment continued despite Copeland’s objections, supervi-

sors participated in the harassment, and the harassment took place

in the correctional context.

Our cases have long recognized that harassment is more se-

vere when it occurs “despite the employee’s objections.” Miller, 277

F.3d at 1276 (internal quotation marks omitted); see also Fernandez,

961 F.3d at 1154 (concluding that harassment was severe in part

because it “persisted . . . despite . . . employees’ complaints); Reeves,

594 F.3d at 812 (noting, in concluding that evidence showed severe

harassment, that a “manager accepted and tolerated [harassment]

over [the employee’s] repeated complaints” (internal quotation

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22-13073 Opinion of the Court 19

marks omitted)). Copeland repeatedly objected—without suc-

cess—to his coworkers’ treatment of his gender. He confronted

coworkers directly. See, e.g., Doc. 46-3 at 114 (“I stated to him . . . ‘I

would appreciate it if you would not embarrass me on the radio

like that again.’”). He told his shift supervisors about the harass-

ment he faced and spoke to HR multiple times when he felt that

his supervisors failed to take his concerns seriously. He even met

with the warden. But, as we have described, these efforts failed to

abate the harassment.

Harassment is also more severe when it involves the partic-

ipation of supervisors rather than solely peers or subordinates. As

the Supreme Court has explained, “an employee subjected to a su-

pervisor’s . . . harassment . . . may well be reluctant to accept the

risks of blowing the whistle on a superior” who has the power to

“hire and fire, and to set work schedules and pay rates.” Faragher v.

City of Boca Raton, 524 U.S. 775, 803 (1998) (internal quotation

marks omitted). Thus, when “measuring the severity of harassing

conduct,” courts have recognized that “a supervisor’s [actions im-

pact] the work environment far more severely than [those of] co-

equals.” Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 278 (4th

Cir. 2015) (en banc) (internal quotation marks omitted); accord

Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1247 (11th Cir. 2004) (ac-

knowledging that harassment by a supervisor is more likely “to be

physically threatening and humiliating”). It is true that some har-

assment Copeland experienced came from his subordinates. But

supervisors participated in harassing him, too. Lieutenant Dickson,

for example, “taunt[ed]” Copeland and repeatedly called him “baby

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20 Opinion of the Court 22-13073

girl.” Doc. 46-3 at 115. Lieutenant Davis unnecessarily and gratui-

tously addressed Copeland over the radio with female pronouns

while other employees laughed. When Copeland asked Davis to

stop, Davis laughed, too. These supervisors’ participation would

allow a reasonable jury to conclude that the harassment was se-

vere. 6

In determining whether harassment is severe, precedent

also requires our “careful consideration of the social context in

which particular behavior occurs and is experienced by its target.”

Oncale, 523 U.S. at 81. We conclude the context in which Copeland

was harassed—while working as a correctional officer—makes the

harassment he faced more severe. The correctional context is dan-

gerous and sometimes violent—dramatically more so than the typ-

ical workplace. See Srinivas Konda et al., U.S. Correctional Officers

6 At oral argument, GDOC argued that the harassment was not severe because

Copeland could have disciplined his subordinates who participated. GDOC’s

argument overlooks the participation of Copeland’s supervisors. It also ig-

nores critical context that Supreme Court precedent requires us to consider in

analyzing severity. See Oncale, 523 U.S. at 81. Copeland’s evidence shows that

he did not sit idly by as subordinates engaged in harassment; he often sought

to correct those who misgendered or disobeyed him. But he was stymied by

supervisors, who criticized him for how he addressed his subordinates and told

him that he should give them more time to adjust. Further, HR personnel di-

rected Copeland to report harassment to them and to his supervisors rather

than taking direct action against his subordinates. He heeded that directive.

Finally, as we have described, supervisors modeled the harassing behavior in

which subordinates engaged. We will not overlook harassment by subordi-

nates when supervisors have a hand in modeling and perpetuating that harass-

ment.

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22-13073 Opinion of the Court 21

Killed or Injured on the Job, 75 Corrs. Today 122 (2013) (finding that

correctional officers experience injuries due to assaults and violent

acts at a rate 36 times greater than other workers). Indeed, at the

time of his deposition, Copeland was on medical leave after an in-

mate attacked him, injuring his leg. In this context, singling out an

employee for harassment sends the message to coworkers that the

victim need not receive the support and cooperation necessary to

remain safe. It sends the message to inmates that the victim is fair

game. See Jemmot v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (conclud-

ing that by “humiliating [a correctional officer] in front of prisoners

he [was] required to control,” coworkers had “put him in danger of

physical harm”).

Together, these considerations persuade us that Copeland

has created a genuine issue of material fact whether the harassment

he endured was severe. In contrast, the district court concluded,

largely without explanation, that the harassment Copeland faced

was “simple rudeness and discourtesy”—statements insufficiently

severe to alter Copeland’s conditions of employment. Doc. 63 at

15. We disagree.

When viewed in the light most favorable to Copeland, the

record fails to support the district court’s conclusion that the har-

assment here amounted to “simple rudeness.” Id. Coworkers joked

about Copeland having a “dildo” in “her” pants, Doc. 53-2 at 3; they

pushed him; they called him “it” and “that” (in addition to

“ma’am”), Doc. 46-3 at 90; they disobeyed his commands; and they

went out of their way to broadcast their comments over a facility-

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22 Opinion of the Court 22-13073

wide radio system daily. On these facts, a reasonable jury could de-

termine that these comments were not inadvertent, accidental, or

in good faith, but intentionally insulting and degrading. It could

therefore conclude that Copeland faced severe harassment based

on a protected characteristic.

3. The Harassment Was Physically Threatening

and Humiliating.

Third, we address whether the harassment was physically

threatening or humiliating. Crediting Copeland’s version of events,

a reasonable jury could find it was both.

Copeland put forward evidence that he faced physically

threatening harassment in his interactions with Holland. Accord-

ing to Copeland, Holland said, “[W]e can fight,” while blocking

Copeland’s path. Doc. 46-3 at 118. Holland pushed Copeland.

Then, while carrying a gun, she followed him outside, circled him

in an armed vehicle, and parked behind him. Copeland perceived

this conduct as physically threatening: he testified that he feared for

his life and immediately notified his supervisors of what had hap-

pened.

Rather than credit Copeland’s version of events, the district

court relied on the conclusions of GDOC’s investigation—that

Holland acted in a “joking” and “friend[ly]” manner. Doc. 63 at 16

(internal quotation marks omitted). But the evidence underlying

GDOC’s investigation partly corroborated Copeland’s story: sur-

veillance video GDOC reviewed showed Holland pushing

Copeland from behind. Where GDOC’s investigation reached

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22-13073 Opinion of the Court 23

conclusions that diverged from Copeland’s testimony, the conclu-

sions were largely based on differing statements by Copeland, Hol-

land, and another witness. On summary judgment, however, the

district court may not take sides in a “swearing match” between

the parties, “which is the stuff of which jury trials are made.” Feli-

ciano, 707 F.3d at 1253; see also Hulsey, 367 F.3d at 1240–42 (crediting

a plaintiff’s version of events at the summary judgment stage not-

withstanding that the employer’s internal investigation did “not

corroborate [her] allegations”).

The harassment Copeland suffered was also humiliating. As

we have recognized, harassment that occurs “in the presence of co-

workers” is especially humiliating. Fernandez, 961 F.3d at 1155.

Copeland’s coworkers harassed him over the prison radio system,

so “the whole institution [could] hear.” Doc. 46-3 at 38. He knew

his coworkers were listening; he heard them laughing. He often

had to explain his transgender status after being misgendered in

front of subordinates.

In another context, this Court has acknowledged that “most

people have a special sense of privacy in their genitals.” Adams v.

Sch. Bd. of St. John’s Cnty., 57 F.4th 791, 805 (11th Cir. 2022) (en

banc) (internal quotation marks omitted). Copeland’s coworkers

transgressed this boundary in a humiliating way. He heard HR staff

laughing at him during a call in which Thomas asked if he had un-

dergone genital surgery, leaving him feeling that he was “a laugh-

ing matter in the [HR] [d]epartment.” Doc. 46-3 at 113. And one

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24 Opinion of the Court 22-13073

coworker joked that Copeland must have a “dildo” in “her” pants.

Doc. 53-2 at 3. 7

4. The Harassment Negatively Impacted

Copeland’s Job Performance.

Fourth is the harassment’s impact on Copeland’s job perfor-

mance. At the outset, we acknowledge that Copeland eventually

received a promotion from sergeant to lieutenant, which suggests

that his job performance had been satisfactory. But the summary

judgment record contains evidence from which a reasonable jury

could conclude the harassment did in fact negatively interfere with

Copeland’s job performance.

This evidence supports an inference that the harassment un-

dermined Copeland’s authority and his ability to command the

obedience of subordinates within Rogers’s rank structure. Holland,

following her confrontation with Copeland, refused to give him

keys he needed to transfer inmates out of Rogers. Another subor-

dinate who, according to Copeland, called him “it” and “that” in

addition to “ma’am,” refused to serve disciplinary papers on in-

mates as Copeland ordered. Doc. 36-3 at 90. When he reported

these instances of insubordination to his supervisors, they generally

took no action, sending the message that insubordination directed

at him was acceptable. Inmates participated in harassing Copeland,

7 The district court claimed—without elaboration—that “there is no evidence

of any humiliation of Plaintiff.” Doc. 63 at 16. Considering our analysis of the

summary judgment record, we disagree.

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22-13073 Opinion of the Court 25

too, further supporting a conclusion that his mistreatment deeply

diminished his status and authority at Rogers.

* * *

At last, guided by our discussion of the four factors, we con-

sider whether, under the totality of the circumstances, a reasonable

jury could conclude that the harassment Copeland faced was ob-

jectively severe or pervasive enough to alter the terms or condi-

tions of his employment. See Mendoza, 195 F.3d at 1246. We are

more than satisfied that it could. Each of the four factors favors a

finding of severe or pervasive harassment—two (frequency and hu-

miliation) strongly so. According to Copeland’s evidence, accepted

as true at summary judgment, each day, when he reported to work,

his supervisors, subordinates, and peers publicly humiliated him

because his gender identity differs from the sex he was assigned at

birth. They did so notwithstanding his complaints to every level of

prison leadership. Title VII does not countenance such behavior.

The district court therefore erred by granting summary judgment

to GDOC because the harassment was not sufficiently severe or

pervasive.

Copeland has met his summary judgment burden as to the

first four elements of a hostile work environment claim, but there

is a fifth element. He still must show that GDOC was “responsible

for the hostile work environment,” whether “under either a theory

of vicarious or direct liability.” Miller, 277 F.3d at 1278.

GDOC argued below that it was not responsible for the hos-

tile work environment because it took prompt action to address

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26 Opinion of the Court 22-13073

the harassment. Because the district court found that the harass-

ment was not sufficiently severe and pervasive, it did not address

this element, and GDOC has not briefed it on appeal. Under these

circumstances, we decline to address it in the first instance. After

all, “we are a court of review, not a court of first view.” Stansell v.

Revolutionary Armed Forces of Colom., 45 F.4th 1340, 1348 (11th Cir.

2022) (alterations adopted) (internal quotation marks omitted). In-

stead, we vacate the grant of summary judgment on Count I and

leave it to the district court to address this fifth element on remand.

B. Failure to Promote

Count II of Copeland’s complaint alleged that GDOC failed

to promote Copeland because of his transgender status, violating

42 U.S.C. § 2000e-2(a)(1). The district court considered this claim

alongside the retaliation claim alleged in Count III, reasoning that

both claims failed because Copeland could not “establish a causal

connection between . . . protected activity and the decision not to

promote” him. Doc. 63 at 21. The district court erred in its treat-

ment of Count II because it analyzed this claim under the wrong

legal standard. The error was harmless, however, because even un-

der the proper legal standard, Copeland’s Count II fails. We there-

fore affirm the district court’s grant of summary judgment on this

count. See Thomas, 506 F.3d at 1364 (“We may affirm the district

court’s judgment on any ground that appears in the record,

whether or not that ground was relied upon or even considered by

the court below.”).

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22-13073 Opinion of the Court 27

Section 2000e-2(a)(1) makes it an unlawful employment

practice for a covered employer like GDOC to “fail or refuse to

hire . . . any individual . . . because of” a protected characteristic,

like transgender status. See Bostock, 140 S. Ct. at 1737. Copeland al-

leged that GDOC violated this requirement because it refused to

promote him because of his transgender status. To prevail on this

claim, Copeland was not required to show that he engaged in pro-

tected activity or that such activity was the cause of GDOC’s failure

to promote him. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1086–91 (11th Cir. 2004) (allowing failure-to-promote claim to go

forward at summary judgment without imposing such require-

ments), abrogated on other grounds by Lewis v. City of Union City, 918

F.3d 1213 (11th Cir. 2019) (en banc). Those requirements, when

they exist, derive from the text of the separate anti-retaliation pro-

vision at issue in Count III, 42 U.S.C. § 2000e-3(a), which makes it

an unlawful employment practice to “discriminate against any in-

dividual . . . because he has opposed any practice made an unlawful

employment practice by” Title VII. The district court thus had no

reason to analyze whether Copeland had engaged in protected ac-

tivity and could show a causal connection between that activity and

the decision not to promote him in the context of Count II.

But Copeland was required to show that GDOC acted “be-

cause of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The district court’s ap-

plication of an erroneous causation standard was harmless because

he cannot make this showing. One way a Title VII plaintiff can sur-

vive summary judgment is by making out a prima facie case of dis-

crimination under the burden-shifting framework the Supreme

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28 Opinion of the Court 22-13073

Court first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, plaintiffs alleging discriminatory fail-

ure to promote generally must introduce evidence showing that

“other equally or less qualified employees who were not members

of the protected class were promoted” instead. Combs v. Plantation

Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997). Copeland alleged

that, instead of promoting him, GDOC hired equally qualified in-

dividuals who are not transgender. But he presented no evidence

to support this allegation at the summary judgment stage: there is

no evidence at all about those GDOC hired, who did the hiring, or

what qualifications were considered. That failure is fatal because,

faced with a motion for summary judgment, a “party who fails to

make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the

burden of proof at trial,” loses. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). And the necessary showing cannot be made on “the

mere pleadings themselves.” Id. at 324. We therefore affirm the dis-

trict court’s grant of summary judgment to GDOC on Count II. 8

8 Of course, relying on the McDonnell-Douglas framework is not the only way

for a Title VII plaintiff to survive summary judgment. See Tynes v. Fla. Dep’t of

Juv. Just., 88 F.4th 939, 944–45 (11th Cir. 2023). As an alternative to proceeding

under McDonnell Douglas’s framework, a plaintiff may present direct evidence

of discrimination (something lacking here) or “a convincing mosaic of circum-

stantial evidence that would allow a jury to infer intentional discrimination by

the decisionmaker.” Id. at 946 (internal quotation marks omitted). In some

cases, a plaintiff’s failure to prove a prima facie case under McDonnell Douglas

“often also reflects a failure of the overall evidence.” Id. We are satisfied this is

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22-13073 Opinion of the Court 29

C. Retaliation

Count III of Copeland’s complaint alleged that GDOC retal-

iated against him for engaging in a protected practice—namely, op-

posing sex discrimination—violating 42 U.S.C. § 2000e-3(a). Similar

to the discrimination claim in Count II, Copeland had no direct ev-

idence of retaliatory intent and instead relied on the McDonnell-

Douglas framework. To establish a prima facie case of retaliation at

the first step of that framework, Copeland bore the burden of

showing that “(1) [he] engaged in an activity protected under Title

VII; (2) [he] suffered an adverse employment action; and (3) there

was a causal connection between the protected activity and the ad-

verse employment action.” Crawford v. Carroll, 529 F.3d 961, 970

(11th Cir. 2008). The district court granted summary judgment to

GDOC on this count, concluding Copeland failed to establish a

prima facie case. We affirm because Copeland cannot succeed on

the third element of the prima facie case, causation.

There is no question that Copeland satisfied the first ele-

ment: he engaged in protected activity by advocating against his

harassment, filing an EEOC charge, and filing this lawsuit. See

42 U.S.C. § 2000e-3(a). But the parties dispute what forms of al-

leged retaliation satisfy the second element, which makes actiona-

ble only “adverse employment action[s],” Crawford, 529 F.3d at

such a case. Copeland’s inability to present any evidence about those GDOC

hired in his stead, who made the hiring decisions, and what factors they con-

sidered amounts to a failure to present a case from which a reasonable jury

could find that GDOC failed to promote Copeland because he is transgender.

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30 Opinion of the Court 22-13073

970—those that “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quo-

tation marks omitted). According to GDOC, the only alleged in-

stance of retaliation that even arguably satisfies this element is

GDOC’s failure to promote Copeland until after the resolution of

his EEOC charge. In contrast, Copeland argues that GDOC is liable

for retaliation not just for failing to promote him but also because

he faced “increased harassment, hostile work environment,” actual

and threatened “discipline,” and worsening working conditions—

like his reassignment to less desirable shifts. Appellant’s Br. 33.

The only “adverse action” Copeland argued in the district

court, however, was “GDOC refusing to transfer or promote him.”

Doc. 63 at 18; see also Doc. 58 at 14 (arguing that GDOC’s “refusal

to transfer or promote Copeland . . . forms the basis of Copeland’s

retaliation” claim). Absent exceptional circumstances, “an issue not

raised in the district court and raised for the first time in an appeal

will not be considered by this court.” Access Now, Inc. v. Sw. Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (internal quotation marks

omitted); cf. United States v. Campbell, 26 F.4th 860, 871–875 (11th

Cir. 2022) (en banc) (same for issues not raised in opening brief on

appeal). We therefore consider only GDOC’s allegedly retaliatory

failure to promote (or transfer) Copeland.

As to GDOC’s decision not to promote him, Copeland fails

at the third element, causation. The causal-connection require-

ment mandates a showing that “the protected activity and the

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22-13073 Opinion of the Court 31

adverse action were not wholly unrelated.” Gupta v. Fla. Bd. of Re-

gents, 212 F.3d 571, 590 (11th Cir. 2000) (internal quotation marks

omitted), abrogated on other grounds by Burlington, 548 U.S. 53. But a

retaliation claim must reflect actual, subjective—not construc-

tive—discrimination; thus, Copeland had to present evidence that

would allow a jury to find that “the decision-makers were aware of

the protected conduct.” Id. (alterations adopted) (internal quota-

tion marks omitted). He failed to do so.

In his deposition, Copeland admitted that he did not know

“who ultimately made the decision” not to hire him “for each of

the positions” within GDOC that he sought. Doc. 46-3 at 64. And

he admitted that he could only “speculate” as to whether any deci-

sionmaker knew of his protected conduct. Id.; see also Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (observing that,

at the summary judgment stage, “[s]peculation does not create a

genuine issue of fact” (emphasis omitted) (internal quotation marks

omitted)).

It is true—as Copeland argues—that a plaintiff may show a

causal connection through temporal proximity. If a form of pro-

tected activity and subsequent adverse action occur “very close” in

time to one another, a jury may infer that the decisionmaker knew

of the protected activity and that it served as one motivation for

the adverse action, establishing causation. Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (internal quotation

marks omitted). But Copeland cannot rely on temporal proximity

because, setting aside his pleadings and briefs, see Celotex, 477 U.S.

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32 Opinion of the Court 22-13073

at 324, he has submitted no evidence of when he actually applied

for and failed to receive the promotions he claims GDOC withheld

as retaliation for his protected activity.

Because Copeland failed to come forward with evidence of

causation, we conclude that he failed to establish a prima facie case

of retaliation and thus affirm the district court’s grant of summary

judgment in favor of GDOC on Count III of the complaint.9

IV. CONCLUSION

We VACATE the district court’s grant of summary judg-

ment on Count I of the complaint and REMAND for the district

court to consider the fifth element of Copeland’s hostile work en-

vironment claim, GDOC’s liability. We otherwise AFFIRM the dis-

trict court’s summary judgment ruling.

VACATED AND REMANDED IN PART, AFFIRMED IN

PART.

9 A plaintiff relying on circumstantial evidence of retaliatory intent also may

survive summary judgment by presenting evidence of a convincing mosaic of

circumstantial evidence that would allow the jury to infer intentional retalia-

tion by the employer. See Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1311–

12 (11th Cir. 2023). Given that Copeland could not identify the decisionmakers

who decided not to promote him and had no evidence about whether those

decisionmakers knew of his protected conduct, we cannot say that he came

forward with sufficient evidence to survive summary judgment under a con-

vincing-mosaic theory. See Tynes, 88 F.4th at 946.