Petition for Writ of Certiorari — Dar Dar v. Associated Outdoor Outdoor Outdoor Clubs, Inc. (No. 07-1192)

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Supreme Court of the Anited States

GERALDINE DAR DAR

Petitioner.

ASSOCTATED OUTDOOR CLUBS, INC.

d/b/a TAMPA GREYHOUND TRACK

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

GERALDINE DAR DAR

Pro Se

P.O. Box 7102

Tampa. Florida 33673

(81-3) O31-8503

BEST AVAILABLE COP

QUESTIONS PRESENTED

Petitioner, filed) this) civil action against

Respondent. Associated Outdoor Clubs. Ine.. d/b/a

Tampa Grevhound Track under violations of Title

Vil and the Florida Civil Rights Act afforded to all

Individuals under the United States Constitution.

The review of these legal issues are very important

in that it address the basic constitutional rights of

due process and fairness where Respondents are

able to hire big law firms and frustrate the

ordinary individual rights stipulated in the laws of

the United States instead of honoring the laws.

Respondent attempted to create a legal basis for

the unwanted touching of Petitioner's buttocks and

physical violence towards her, due to “a small and

confined work area” without a written) sexual

harassment policy, retaliation poliev and complaint

procedure in place until April 1. 2005 [April Fool's

Day]. seven months prior to trial. Respondent

requested the court system for judgment as a

matter of law when in fact they were not in

compliance with all applicable federal. state. local

rules and equal employment opportunities laws.

and a prohibition of sexual and other forms of

harassment and discrimination.

1 Whether there is conflict between the circuits

on causation and the anti-retaliation provision

under Tithe VEL.

QUESTIONS PRESENTED - Continued

2. Whether there is a conflict between the circuits

on issues when allegations. statements. and

incidents occurred in a vacuum, separate and

distinct from the rest of the records during

summarv judgment.

3. Whether there is a conflict between the circuits

on what constitutes hostile work environment

harassment under the totahty of — the

circumstances and to finally clarify Federal Rule

of Civil Procedure, Rule 50(b).

PARTIES TO THE PROCEEDINGS

The parties below are listed in the caption. and

are listed together with their attorneys address.

as follows:

Il. Geraldine Dar Dar. Pro Se

Plamtilt

Post Olfiee Box 7102

Tampa. Florida 383675

Telephone (813) 931-8508

2.) Associated Outdoor Clubs, Ine.. d/b/a

Tampa Grevhound Track, 8300 North

Nebraska Avenue. Tampa. Florida 3360-1.

Post Office Box 8096, Tampa. Florida

6 7 -t-SO0U6

Defendant

John Michacl Hater, Owner/General

Manager of Associated Outdoor Clubs, Ine..

d/b/a ‘Tampa Grevhound Track. 8300 North

Nebraska Avenue Tampa. Florida 33604

Post Office Box S096, Tampa, Florida

303000 -$-SO9G

Defendant

Mark bk. Levitt. Allen. Norton & Blue, P.A..

324 South Hyde Park Avenue, Suite 225.

Tampa. Florida 33606, Telephone (813)

291-1210 Facsimile: (813) 254-2006

CORPORATE DISCLOSURE STATEMENT

The corporate = disclosure | statements — are

applicable = =to — the Defendant-Respondent,

Associated) Outdoor Clubs. Ine... d/b/a Tampa

Grevhound Track. since. they are corporations

and = Owner/General Manager. — [Defendant

contends that thev are independent of the other

Associated Outdoor Clubs, Inc... which 1s

incorporated with twenty tracks within the

Florida area]. Plaintiff-Petitioner is an individual

and without corporate affiliation and not a

corporate entity.

Respectfully submitted,

Geraldine Dar Dar, Pro Se

Post Office Box 7102

Tampa. Florida 33673

Telephone: (813) 931-8508

TABLE OF CONTENTS

SRR TESS TS LI PCr U Pet Din ccc ccsecssesensecencesocess 1

PARTIES TO The PROCKEEDINGS................. il

CORPORATE DISCLOSURE STATEMENT... iv

RR Ee BEIT Gee OF oon sca ckvvecncesascecesadancens v

MEIER. COE TNE T PER PERE CATO ccnsecnecsccdecstidsiietens IX

SEE NaR Ree SHUURNETY ssipneten scndcavnavcneesenkepareseneauus ]

STATEMENT OF SRtRESINCTION 0... .ccccccsecsene ]

CONSTITUTIONAL AND RELEVANT

ERE PA SORCR Nee BAU A CHEN Pub asec ccicevnesisncecwescces 2

POUR ECR NESS FORE TURES Ga NNO S coset cwndsvencccccassneesttl

REASONS FOR GRANTING THE WREP ......... 15

RIE RETRAIN euicetiinavuhodnigeenseonnsveuckeeunacaeneeels 4:5

APPENDIX

TABLE OF CONTENTS - Continued

Prgre

APPENDIX

Decision of the Eleventh Circuit Court of

Appeals issued on October 30. 2007,

Denial of Petition For Rehearing And

Petition For Rehearing En Banc.

Geraldine Dar Dar v. Associated

Outdoor Clubs, Ine.. d/b/a

Tampa Grevhound Track.

Appeal No. 07-1l0G18DD ...........cceeeeeeee cpp. 1

Decision of the Eleventh Circuit Court

of Appeals issued on September 7, 2007,

(Unpublished) Geraldine Dar Dar v.

Associated Outdoor Clubs. Inc.,

d/b/a Tampa Grevhound Track.

Appeal No. 07-10618DD .................0...c\pp. 3

Decision of the Eleventh Cireuit Court

of Appeals issued on June 14. 2007,

Reinstatement Geraldine Dar Dar v.

Associated Outdoor Clubs, Inc.. d/b/a

Tampa Grevhound Track.

Appeal No 07-10618DD. ..............208.e App. 10

Decision of the Eleventh Circuit Court

of Appeals issued on Mav 18. 2007

Entry of Dismissal. Geraldine Dar Dar

v. Associated Outdoor Clubs. Ine..

d/b/a Tampa Grevhound Track,

Appeal No. 07-10618DD...............00...\pp. 11

(3.

é.

Vil

TABLE OF CONTENTS = Continued

APPIENDIX

Decision of the United States District

Court for the Middle District of Florida.

issued on January 10. 2007, After

Reverse. Remand And Vacate.

Geraldine Dar Dar v. Associated

Outdoor Clubs, Ine.. d/b/a Tampa

Grevhoand Track,

Pragre

D.C. No. 8:04-01055-SCB-TBM............\pp. 13

Decision of the Eleventh Cireuit Court

of Appeals issued on November 29, 2006,

Denial of Appellee’s Rehearing Motion,

Geraldine Dar Dar v. Associated Outdoor

Clubs. Ine.. d/b/a Tampa Greyhound

Track,

Appeal No. 06-10245DD...............20.206A pp. 22

Decision of the Eleventh Circuit Court

of Appeals issued on October 25. 2006,

(Unpublished) Geraldine Dar Dar v.

Associated Outdoor Clubs, Ine... d/b/a

Tampa Grevhound Track,

Appeal No. 06-10245DD._................000pp. 2

Decision of the Eleventh Cireuit Court

of Appeals issued on February 1-4, 2006,

Extension Granted Geraldine Dar Dar v.

Associated Outdoor Clubs, Inc.. d/b/a

Tampa Grevhound Track.

Appeal No. 06- 10245 D1).......cccccescececees MPP. ode

Vil

TABLE OF CONTENTS - Continued

Page

APPENDIX

9. Decision of the United States District Court

for the Middle District of Florida issued on

December 7. 2005. Denial of Motion for

New Trial, Geraldine Dar Dat v.

Associated Outdoor Clubs, Inc.. d/b/a

Tampa Grevhound Track.

D.C. No. 8:04-01055-SCB-TBM............App. 36

10. Decision of the United States District

Court for the Middle Distriet of Florida

issued on November 238, 2005, Bench

Trial. Geraldine Dar Dar v. Associated

Outdoor Clubs. Inc.. d/b/a Tampa

Grevhound Track.

1.C. No. 8:04-01055-SC B-TBM............4 App. 38

11. Decision of the United States District

Court for the Middle District of Florida

issued on July 25. 2005. Summary

Judgment. Geraldine Dar Dar v.

Associated Outdoor Clubs, Enc... d/b/a

Tampa Grevhound Track,

D.C. No. 8:04-01055-SCB-TBM............:App. 50

TABLE OF CITED AUTHORITIES

Praigre

UNITED STATES SUPREME COURT

Cases:

Anderson v. Liberty Lobby. Ine.

ee NE, EPR cue ocd vouccbesoeevaccsccesteccvessorert

Burlington Northern vi White ...........ccccccccceees Is

Burlington Northern, 126 S.Ct.

a ot ea daceceseeteeee 1s

Burlington, vr at |. BSL.

Ne oo uckavevewbececsevees PS ce

Ne cae duweecowuaepadets 19

fo EE Re be) 26, 29

Faragher, 3:3-4ULS, TT (1998).......... cc ceee ee eb, 2U

eS BE le ae BE eS Res | 38

eierein, ah US. at 28, 114 S.CU. at 37.......000080. 40

Harris v. Forklift, Ine. STO ULS, 17, 28.

See Ue 20 CUUNED wg cconaceecevensece 42

| Be Od 2D 4) 433

Kolstad v. American Dental Ass'n.

0 TPT STUD ccc cacccnvevsococcsectcensceves 26

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES SUPREME COURT

Meritor Savings Bank v. Vinson, 477 U.S. 47.

69.91 Lied 2d 49. 106 S.Ct. 2399

(1996). cert. denied. 526 U.S. 1039.

Bok ty He RT A RSA ee - |

pecan, SP OG OE 0 ei ee eo Se

UNITED STATES COURT OF APPEALS

Brown v. Perry, 184 F.8d 3888

Sa i i «+ |

Crawford v. Runvon. 37 F.3d 1338, 1341

PF Ec Fein idea lavnunbikcodesebevencusocetoenaaseen

Curtis v. Okalahoma City Pub. Sch. Bd. of

Kduc.. 147 F.8d 1200, 1214

CFE es Re iikiacatreraensilasrnicindsiotnitinsace

Davis v. Town of Lake Park. 245. F.3d 1252.

pp RLS ke | 8 Me Renae San eras 21

KEOC v. Stocks, Inc.. 2007 WL 11191186

peak i eS 2 SPIE ES UES ARS ge ae NON 28

Fenton v. Hisan, Ine. 174. F.3d 827. 831-32

PF PEs Se nctstcucccchaccendacbiakvnssousince ae

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES COURT OF APPEALS

Gupta, 212 Fisd 571. 58

leo Ot, a Ne. a

Hall v. Gaus Construction Co., 842 F.2d

COREG. FORE E CIF A ae, FID ink vc vccccccocc nce ch 42

Hicks v. Gates Rubber Co. 833 F.2d 1406,

1415 (10 Cir, LOST) oo... delete tial gs cdudoca grees ane

Hurtey vo Athantie Citv Police Dept. 174

Pee ee, FE CPU eT a decnccsveyscvescans 24

Lack vo. Walmart Store. Ine. 240 Fo8d 245

SP ee Pee ai oe: coves cei citi Siecle

Lee v. Department of Veterans Affairs, 2007

We Eph re OE WP, CRI a hicks Svcs dea hnirdeae asc 18

Lipsett v. Univ. of Puerto. 846 Fli2zd 881. 905

kg ON +, SEER I NE Naa ORME

Mattern v. BRastman Kodak Co... 104 Fo8d

See GEE Re ic STE Maciek vckcoavoknvvukeigsnk 17

Mendosa., 199 Plkd. 1238. 1246

Se ic ees car inbictincivon dc eck veeud mete ae

Miller v. Bank of Am... 600 F.2d 211. 213

ace guilt |) Sn Rea ENTE NEE pageMT MCN 2 ah +

Xil

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES COURT OF APPEALS

Norviello v. City of Boston, 398 F.3d 76

ie bid chck slddvucud beacunavedchoesdeies 17

Perry v. Federal Home Loan of Topeka. 155 F.

Ad 1257. 1262 (10 Cir.. 199R)..........ccecc ene seesded

Prvor v.Wolfe. 196 Fed, Appx. 269

Ae Nh ei cack le ceuswhsasdewlaascesac 18,351

a oh oe Non 18

Prujillo v. Univ. of Colorado. Health Sciences

Cntr... 157. F.8d 1211. 1213

CR a Fir iscacei sb cukicedndetctb sain ccciacctt’

Splunge v. Shoney's, Inc. 97 F.3d 488, 40

OF i ins Pela Neds utakicloavniedvbedaupss cheweeviis 27

Vance v. Southern Bell Telephone & Telegraph

Co., 83, F.2d 1503 (11'* Cir. 1989)............. 4]

UNITED STATES DISTRICT COURT

De ae Be EE Ee Re.

Broderick v. Ruder. 46 FEP cases 2171

I 42

ites Mee ih | a ae © SER a a ee 13

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES DISTRICT COURT

Faragher, 86-4 F.Supp. 1552

SR rN id si causi pcs vessceussvsteianeepaes 50

ON ME BP ee Nine cleiceh sc uhousehaukesedsacncsausiececivncira

Lehmann v. Toys’ R’ Us... 132 No). 587, 592

Phos eh cintcns vis cn nasiga cub eat cua ek sone Kelch sueue dries: 43

MeWinnev v. Dole. 765 F.2d 1129, 1138

ae Se Se A” EA ND ee RROD PRONE

Smith v. St. Lois Univ.. 109 Fo3sd

Sen es | PUM NE INTE T Gia ten Gane csccdtvevcsdivavascasuewaneel

Vinson v. Tavlor, 7538 F.2d 141. 36 FEP

eases 1-423. 1427 (D.C. Cir. 1983)

dia ULS. i07. TOP BP craton P62 oo... cc cee esses. 422

Woodham v. Blue Cross & Blue Shield of

Florida. 829 Se. 2d S41 (Fla. 2002)..........0000- :

UNTTED STATES CONSTITUTION

Tithe Vilofthe Civil Rights Act of 1964 0.0.0... 2.17

Tithe Vilofthe Civil Rights Act of 1964.

as amended 42 ULS.C. 2POOO0-2(a)(1) .........0600083

XIV

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES CONSTITUTION

Tithe VII of the Civil Rights Act of 196-4

as amended 42 U.S.C. 20000-3(a)...........0eee 17

DAM AE PRG aki gada cece dudesbavouseue 16, 18. 19. 20

bes ag Bro | earner esmeron 16. 18, 19, 20

RULES

Federal Rule of Appellate Procedure.

Ce RESTOR SU CEC RII E RON Op Eee cat Ck EEN 14

Federal Rule of Civil Procedure,

I TR oc aes oo ies cco d cases Ji. 40. 41

Federal Rule of Civil Procedure.

WIN 8 IN dig oad cy. cacosens coe cudaaceus 31

Supreme. Court Hide G03. ic. cccssccccssessonsusvevavses 1

SPRREIY CHI” © RHREUO TRIO PR0 as ove scdcnns cos donccavseniuncous 1

STATUTORY REFERENCES

Americans with Disabilities Act. Section 303.

Florida Civil Rights Act of 1991.....................00083

TABLE OF AUTHORITIES - Continued

Page

STATUTORY REFERENCES

Florida Civil Rights Act of 1992

TOE 7 Ee cdot

We EAE OE IW ioc voce en suswcededckcserdidesteinecoe

EEF A. Races con oes & gr aans ecmuaien 2

OTHER AUTHORITIES

AT SURI sags ca ca wenenciussuris 265

Freedom of Information Act (EEOC)

No. 151 A400062 (Pampa. Florida)

No. A4-05-FOLA-0620-MM

(Miami. Florida, Washington. DC)................ 2

Vicki Schultz. Reconceptualizing Sexual

Harassment. 107 Yale Lod. 1764-74 .............39

OPINION BELOW

The relevant orders by the district court (D.C.

No. 8:04-01058-SCB-TBM), After REVERSE.

REMAND, and VACATE (App. 13): DENIED

New Trial (App. 36): Bench Trial (App. 38): and

Summary Judgment (App. 50). The opinions by

the 11 Cireuit Appeal No. 06-10245DD.

REVERSE. REMAND. and VACATE.

(unpublished) (App. 24). and Appeal No. 07-

10618SDD AFFIRMED district court [in conflict

with this Circuit's prior decision, the Supreme

Court and other circuits. (App. 3) are reproduced

in the Appendix. The Petitioner filed a Petition for

Rehearing and Rehearing En Banc presenting

constitutional issues again and its” relevance

under Title VIP as well as the conflict under prior

holding of this Court. The Petition was DENIED

on October 30. 2007 (App. 1). This petition

follows.

STATEMENT OF JURISDICTION

Pursuant to Supreme Court Rule 30.3 this

Court has jurisdiction in’ that before the

expiration of the 90 days after the Petition for

Rehearing and Rehearing En Bane timely filed

and DENIED October 30.) 2007 (App. 1).

Petitioner filed a Petition for Writ of Certiorari

tiiaely filed on January 27. 2008. Pursuant to

Rule 14.5. the petition must be corrected to

comply with the Rules of this Court and submitted

to Office of the Clerk in corrected form within 60

davs or the petition will not be filed. This

Court's jurisdiction is invoked under 28 LUS.C. §

120-101).

CONSTITUTIONAL AND RELEVANT

PROVISIONS INVOLVED

This action was brought against Respondent

with EEOC alleging discrimination based on sex,

race and retaliation pursuant to Tithe VIP of the

Civil Rights Act of 1964 and Florida Civil Rights

Act of 1992.) February 10. 2004. EEOC issued its

“Right To Sue" giving Petitioner 90 days to sue.

Petitioner obtained the Freedom of Information

Act. Miami. Florida and Washington. D.C. (A4-05-

FOLA-0620-MM) = [Petitioner owas — slandered,

defamed. and humihated. The Respondent

intentionally caused severe emotional distress

upon Petitioner] (SAC! Ex. ALB. C.D).

The continued actions against Respondent with

Morida Commission on Human Relations issued

its Notice of Dismissal and Right) to Sue,

therefore, pursuant to the authority of Woodham

t. Blue Cross & Blue Shield of Florida, 829 So, 2d

S91 Fla. 2002). the Complainant may pursue this

claim in the Division of Administrative Hearing

(DOAED.

On May 31. 20046 Petitioner filed a Petition for

Rehefagainst Responden’ pursuant to

Second Amended Complaint (hereafter SAC)

Florida Civil Rights Act of 1992. Section 760.01-

760.11. alleging unlawful employment practices

by maintaining a racially and sexually hostile

work environment and by terminating her in

retaliation for complaining about the hostile work

environment. The petition was not timely filed.

After exhausting her administrative remedies,

Mav 10. 2004. Petitioner filed a Complaint in

District Court Middle District of Florida: August

10. 2004, an Amended Complaint was filed: and

October 18, 2004. a Second Amended Complaint

was filed alleging sex discrimination hostile work

environment and vicarious retaliation by the

supervisors beeause she opposed — unlawful

employment acts pursuant Title VII of the Civil

Rights Act of 1964. as amended. 42 U.S.C. §

2000c-2(a)(1). the Florida Civil Rights Act of 1991,

Florida Civil Rights Act of 1992 § 760. American

with Disabilities Act, Sections § 12203(a) and §

12203(b).

STATEMENT OF THE CASE

Associated Outdoor Club d/b/a Tampa

Grevhound Track (hereafter. “Respondent”)

operated under two seasons per vear: Simulcast

season, January thru June: and Live season, July

thru December. In duly 1999. Respondent. hired

Petitioner (hereafter, “Petitioner”) (46 vear old.

African) American female). Ed Gilley, head

supervisor, assigned Petitioner as roving clerk, job

classifieation-parl mutuel clerk. Unlike other

clerks, Petitioner walked with a small hand held

computer, punching tickets for customers

throughout the track and was not limited) by

waiting for customers to come to her. This job

assignment brought more tips than that of the

other clerks. The other clerks complained of the

job assigned to Petitioner because she was a

heweomer and the position was not offered to the

other clerks. Thereafter. Petitioner's position was

abolished and she was assigned to a stationary

position behind the counter [line] with the other

clerks. Petitioner did not complain about the new

assignment.

During her employment behind the — line.

Petitioner began to complain to her supervisors

and managers about various acts of unwanted

touching of her buttocks and offending conduct:

(1) Live season 2000. Grant constantly poking

petitioner ino her side while) she's assisting

customers (SACL pl2-13. #1): (2) Unwanted

touching of her buttocks by Diez (once) at

concession stand: (3) Chesser. Grant and Guzman

constantly invited petitioner to drinking parties

after working hours: in the event that she got

intoxicated. they will take her to Chesser’s house.

where other co-workers usually sleep over.

(followed by laughterwamd giggling (SAC, p12-15.

#1): (4) Simuleast 2000, 2001, Unwanted touching

of Petitioner's buttocks by Capitano on Tuesdays

and Thursdays during Chesser’s shift (6 months

intervals) (SAC p13-14, #2-3): (6) dan. 12. 2002.

Gauzman’s statement to petitioner that he saw a

man in the mens room, UNZIP. UNTIE,

UNWRAP, and a “whale of a dick” fell into the

toilet (SAC. pl4. #4-5)*: (6) dan. 13. 2002.

Guzman’s statement to petitioner. “wouldn't you

like to have a woman do things for vou that

Brodie does for me” (Brodie and Guzman were

lovers at that time)(SAC, p15. #6-7): (7) dan. 20,

2002. Guzman brushed petitioner shoulder and a

violent) argument erupted. Officer Kessler

interceded (SAC, p16, #8-9. p 24. #18).(8) End of

Jan... 2002. Brodic punched Petitioner on the

shoulder? (SAC, p18.410-13): (9) Petitioner saw

Brodie and Guzman on the strect where lives

(three occasions, they live 45 miles away) (SAC. p

23. #17¢): (10) Brodie began to park wherever

Petitioner parked her car. headlight to headlight

(SAC. p 23. #17a): (11) Someone was letting air

out of the tire of petitioner's car (each night she

worked) (SAC, p 23. # 17b; p 25, #20): (12) Mar.

26, 2002, Unwanted touching of Petitioner's

buttocks by Reker (occurred twice after being told

not to do it after the first time): Berkobein called

petitioner a liar regarding Reker touching her

Supers isors told Guzman to leave Petitioner alone and don't talk to

her

* Appellant wore a bruise for two weeks, and needed spinal

adjustment due to hemiated disk in lower bach

huttoeks (SAC. p 20. #14-16): 13) Unwanted

touching of Petitioners buttocks by Malizo (SAC,

p 25. #20): (1-1) Oct - Nov. 2002. Bruner circulated

aoMagazine among co-workers that sold ladies

panties with built-in butt (SAC. p 26. #21): (15)

Nov. § 2002. Diaz asked Petitioner if she wore

panties with built-in butt. An argument erupted

and Brodie called Petitioner “psycho” (SAC. p 26.

71-23): (16) Petitioner immediately went to Hall

to report the incident that had just oceurred and

to inquire about the status of her complaints she

made to the supervisors. Hall said he had no

knowledge of her complaints: Petitioner almost

had a nervous breakdown in his office (SAC. p 27,

#235-2.4): (17) Marly February, 2003. Berkobein told

flied] Petitioner that) Hortons mother had

wneurvsm caused confusion between Horton and

Petitioner (SAC. p 39. # Te): (18) Customers told

Petitioner that Horton said that “when Petitioner

was not oat work she’s making porne movies”

(SACL p 29 #25): (19) May 16. 2003, Customer

ealled Petitioner “a lazy mother fucker” because

she was leaving for lwach [scheduled. since 1999}

(emphasis added) Mav 16. 2008, (9:00-11:00 pm)

Horton argued when Petitioner received a $50.00

tip from oa customer, and she received 810.00,

customer said “don't be jealous” she replied loudly.

“jealous of what. she ain't got shit” (SAC. p 41 ad:

(20) May 17. 2008 (at 12:00 pm. until 12:00 am.)

continued harassment. belittled. humiliated. in

front of customers. Horton's topic: “jealous of

What, she aint got shit” (SAC. Ex d): Mav 18,

0023.

scheduled day off (SAC, p 42, #b, Ex. J): (May 19.

2003. Chesser called Petitioner at home and said.

“We decided to terminate vou" and hung up the

telephone) (SAC, p 43. #e. d. e): (21) Respondent

withheld) monies owed to Petitioner — after

termination. Sept. 30. 2003. Petitioner filed a

complaint with EEOC. Oct 4. 20038. Respondent

sent Petitioner to a collection ageney: Petitioner

contacted the United States Department of Labor.

The Department of Labor informed Respondent

that they owed Petitioner $70.01. On December 5,

2003, Respondent sent Petitioner a check in the

amount owed, The collection agency dismissed the

case. (SAC. p 45-46. #h, Ex 1).

Petitioner received unemployment benefit.

During Prehminary Pre-Trial Conference

(December, 2004) district court DENIED

Petitioner's right to request punitive damages

(Doc. 80. 28:24-29:13: Doe. 80. 380:7-22): (also.

Petitioner's request for punitive damages was not

mentioned during Jurv [Instructions at) Beneh

Trial). !

The district court notes that Respondent did not

have a written sexual harassment poliev during

* Petitioner was ordered to her first mediation with former Judge

laudward Ward (Doc. 42) [who resigned from the Bench when

allegations of sexual harassment surfaced against three female judges

and their assistants].

Pe SSS Pte ‘ _ ~The iT Sette SD doer aa wl x - . 4

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Petitioner's employment. (App. 43. fn 21). District

court: evaluated only ten (10) of — Petitioner's

twenty-one (21) allegations’: 1) a male clerk

poked her in her side: 2)° her co-workers invited

her to accompany them for a drink after work: 3)

Guzman asked her if she wanted a woman to

bring her food. like Charlvn Brodie brought him

food: 4) Guzman bumped her shoulder after

Petitioner complained about him: 5) she saw

Brodie and Guzman on the street she lived on: 6)

unknown people were letting air out of her tire: 7)

she witness a female clerk bring a magazine that

sold underwear with a “built-in butt: 8) clerk. Diaz

asked her whether she ever seen) such an

apparatus: 9) Guzman told her that while he was

in the men’s restroom. he saw an individuals

“whale of a dick”: 10) she was touched repentedly

on her buttock by other clerks including Capitano

and Reker... (App. 62).

The district vourt made credibility

determination by determining that the incidents

were not gender-based and did not form a part of

the context of the environment.

stanng. ~ Nddinenally, Phimith states in her deposition that the

following meiments alse created a hostile work environment, but these

meidents were not iddressed by defendant” (App. 62 fn 3d).

{Pottione refers to the other remaining meidents ast ndisputed

liivts|

This uneleur as to whe esacth invited her out, Plaintitl oerels

refers to these co-workers as “thes” in her deposition (App. 35. fn

hyn? 3

Based on this misapplication of law. the Court

GRANTED in part and DENIED in. part

Defendant's motion for summary judgment

regarding Plaintiffs hostile work environment

claim. The Court DENIED the motion only to the

extent that Plaintiff contends that she was

subjected to a sexually hostile work environment

due to people touching her butt.

However, the Court GRANTED summary

judgment in favor of Respondent regarding all of

the other alleged incidents that Plaintiff contends

created a sexually hostile work environment”

(App. 69).

“The Court further noted that Defendant asserts

a legitimate, non-discriminatorv reason — for

terminating Plaintiff. failing to comply with

customer courtesy. However, Plaintiff brought

forth evidence (in the form = of Meissner's

deposition testimony) that created a genuine issue

of material fact as to whether Defendant's

purported reason is pretexual’, Accordingly. the

Court DENIED Delendant’s motion for

~ Additionally. the Court notes that PlaintitY argues that she was

terminated due to her outbursts to co-worker. which occurred

Whenever thes would touch her in a manner that she deemed

inappropriate (Doe. No. 76. p. 13) Furthermore. it appears that

Plaintiff may be questioning the legitimacy of the complaints that

occurred at the Track were logged (Doe. 76. p 15-16, 20).

Petitioner contends that district court did not look at the other

incidents that would dissuade a person trom fling a complaint (App.

bl. tn 31: App 68, fn 36).

judgment on Plaintiffs retaliation claim based on

her termination” (App. 68).

At trial from the Bench. district court stated:

“On page two of vour findings vou — talk

about vour hostile work environment claim.

And vou say: Phuntiff argued that she was

subjected to a hostile work environment

regarding, one Guzman’s discussions about

woman's genitalia that he saw in the men's

restroom: and two, Diez asking plaintiff if

q she wore underwear with a built-in-butt.

The only issue as far as hostile work

environment, and the only one that FU

entertain any type of evidence about, is the

touching of vour buttocks and those--those

particular events related to that. You also

: obviously have the retaliation claim, but

those two examples that vou used in vour

proposed findings | already said in my order

on summary judgment that - - | entered

judgment for the defendant on those, that

those were pot proper arguments for a

hostile working environment based on sex,

so) or gender.

So ] just wanted to alert vou to the fact

that | will not entertain any kind of

evidence on those two issues.

The other thing | just want to remind you

of, is there are two issues left for trial. One

is the hostile work environment claim that |

just talked about, and that is based strictly

on touching vour buttocks. The second is

retaliation. Everything else went out on the

order on the motion for summary

judgment.” (TT1, 8:10-9:2)

“Sex discrimination and hostile

work environment affirmative with

being permitted by the supervisors.”

(TT2, 235:2-4)

In the 11" Cireuit Court of Appeal No. 06-

10245. Dar Dar argues that district court erred in

opproximately thirteen ways. These arguments

are best divided into three general contentions: 1)

the district court) erred in’ granting partial

summary judement. 2) the court erred in entering

judgment for AOC on the hostile work

environment claim, and 3) the court erred by

entering judgment for AOC on the retahation

Claim (App. 24).

Dar Dar’s first contention is that the district court

erred by granting summary judgment to AOC as

to most of the alleged incidents of harassment.

She argues that each incident is) relevant to

establish a hostile work environment and that the

district court Incorrectly considered the alleged

incidents of sexual harassment in isolation rather

than as a whole (App. 26).

“Consequently. we AFFIRM the district: court

partial grant of summary judgment as to incident

one through seven and REVERSE it as. to

incidents eight and nine” (App. 30).

However. the district court need not conduct any

additional evidentiary. proceedings on REMAND

if it determines that even if Dar Dar's allegation

about incidents cight and nine are true. that

conduct when added to incident ten still does not

total sexual harassment. We leave that decision

to the district court (App. 31).

Dar Dars second contention is that the district

court erred in entering judgment for AOC on her

hostile work environment claim. Because the

district court did not consider evidence of two

relevant instances of conduct at trial. we cannot

determine how it would have ruled had it done so.

Therefore. we VACATE the order entering

judgment on Dar Dar's hostile work environment

claim and REMAND

for a determination as to whether consideration of

these additional instances alters the court's

resolution of that claim. What we said in the

previous paragraph about the possibility that no

new evidentiary proceedings will be required

applies here as well (App. 31).

Finally. Dar Dar contends that the district court

erred when it entered judgment for AOC on her

retaliation claim (App. 32).

We grant deference to the — eredibility

determination of the district court. Burrell, 125

Bod at 1394. and find that it did not clearly err.

We therefore AFFIRM the judgment in favor of

AOC on Dar Dar's retaliation claim (App. 34).

The district found that Dar Dar’s complaints of

harassment could constitute statutorily protected

activity and that her termination was an adverse

employment action® (App. 33). However, the court

concluded that she failed to prove causation by a

preponderance of the evidence...... (App. 3:3).

In the District Court’s Order After REVERSE.

REMAND and VACATE - The Court finds in

favor of Defendant on Plaintiffs hostile work

environment claims (App. 221).

esa The creation of a complaint tog only becomes “material to a

reasonable emplovee™ once the employer uses that log as the basis for

disciplining of terminating the emplovee. Barlingtan, U.S. al

~1268.Cb at 2409. Thos. Dar Dar’s termination was the adverse

action, not the creation of the complaint log.

1-4

Distriet court stated that Dar Dar did not

prove by a preponderance of the evidence that

the sexual harassment resulted in a hostile work

environment (App. 21).

On Appeal No. O7-10618SDD. We AFFIRM. the

samnnwv judgment for Associated on her

retahation claims and agreed with the district

court that the majority of incidents alleged by Dar

Dar to have created a hostile work environment

were insufficient as a matter of law to support

such a claim (App. 4). We AFFIRM District

Court decision on REMAND (App. 9).

Dar Dar contends that this Court erred in the

first appeal by not directing the district) on

REMAND to consider evidence of the other non-

sexual incidents that we concluded in the first

appeal were insufficient as a matter of law to

support a hostile work environment claim and to

consider AOQC'’s alleged failure to take effective

action to address Dar Dar’s complaints. Because

we already ruled on these matters. however. ....7

(pp. (>). :

The Petition for Rehearing is DENIED and no

Judge ino regular active service on the Court

having requested that the Court) be polled on

rehearing en bane (Rule 35. Federal Rule of

Appellate Procedure), the Petition for Rehearing

En Bane is DENIED (App. 2).

REASONS FOR GRANTING THE WRIT

Certiorari is) warranted in the instant case.

because most of the circuits are divided on the

issue of what should be considered under the

totality of the circumstances In a gender based or

non-gender based issue that forms a part of the

context of the ‘environment’. This Court has

expheitly explained that it is the ‘environment

when looking at a harassment case subjectively

that must be viewed in context to determine

whether the environment is severe or pervasive

and no set of facts should be viewed as isolated

incidents. Furthermore. most of the circuits

require that the acts or incidents be sexual in

nature in the context of the environment.

Petitioner requests this Court to clarify. the

issue that the circuit court cannot inquire whether

the alleged conduct was severe or pervasive

without knowing how severe and pervasive it

must be. Thereafter. district court. in its own

words from the bench. had no intention of

entertaining the evidence presented at trial: and

whether the district court caused a= manifest

injustice at summary judgment by granting

credibility determination. by weighing the

evidence and drawing legitimate inference from

the facts which are jury functions and not those of

the judge.

Petitioner request certiorari to be granted to

resolve conflict in the circuits when district court

errs in granting summary judgment to a

Defendant and on appeal. when these issues were

remanded back to the court for consideration of

additional evidence,

Petitioner request) this Court) to determine

whether Petitioner's substantial due process was

violated when district court held no evidentiary

hearing to hear the evidence in light: of the

remand.

Petitioner request) this Court) to) determine

whether the district court was correct in denving

Petitioners punitive damages claim during

Preliminary Pre-Trial Conference December.

200-4.

Finally, Petitioner contends that certiorari is

warranted to determine the conflict between the

cireaits on the old anti-retaliation provision and

the kev language of the anti-retaliation and the

anti-diserimination provisions. to | determine

whether Petitioner presented — evidence — of

diserinuination when the supervisors log was

created and used against her thereby creating ;

material change In the terms and conditions of

heremployment.

f; Certiorari Should Be Granted To

Resolve The Conflict Between the

Circuits on Causation And The Anti-

Retaliation Provision Under Title VII

Petitioner will demonstrate a split of authorities

over the proper standard for actionable retaliation

under Title VII of the Civil Rights Act of 1964. Sce

Norviello v. City of Boston, 398 F.3d 76 (1 Cir.

2005). In this case involving a Title VII

employment discrimination suit) by a city

employee. the First Circuit noted that “the weigh

of authority. supports the view that..... The

creation and perpetuation of a hostile work

environment can comprise a retaliatory adverse

employment action. “citing the Second. Fourth.

Seventh. Ninth. Tenth and Eleventh Circuits as

support. Id. at &9.

But the court noted that the Fourth and Eighth

Cireuits hold “that a hostile work environment

‘annot constitute a retahiatorv adverse

employment action instead, retaliation requires

an ‘ultimate employment = decision... such as

hiring, granting leave. discharging. promoting and

compensating...Id. (quoting Mattern vu. Eastman

Kodak Co.. 104° F.3d) 702. 707 (5th Cir. 997).

Ultimately. the First Circuit held “explicitly that a

hostile work environment, tolerated bv the

employer, is cognizable as a retaliatory adverse

employment action for purposes of 42 U.S.C. §

2000e-(3)." thus siding with the’ majority of the

circuits and against the Filth and Eighth Circuits.

Id.

The Fifth Circuit considered several Title VII

retaliation cases in the last vear since the

ia dh eel) neat aed

Supreme Court's opinion in Burlington Northern

t. White modified the Fitth Cireuit’s standards. In

Lee wv. Department of Veterans Affairs. 2007

W. 1747998 (5 Cir. 2007) (unpublished). the

court reversed and remanded a retaliation claim

because ait had been evaluated under the old

“ultimate employment — standard — decision”

standard.

In Pryor cv. Wolfe. 196 Fed. Appx. 269 (5'> Cir.

2006) (unpublished) the court held the plaintiffs

retaliation claim was actionable under either the

old standard or the new Burlington standard and

reversed the district court. It) found that the

plaintilfs complaint - that) M.D. Anderson

withheld his paveheck in retaliation for his race

discrimination complaint =. would = “almost

certainly ‘dissuade a reasonable worker from

making or supporting a charge of discrimination.~

ld at) 23.

“This Court noted that the application of the Title

Vil anti-retahation provision is not limited to ain

emplevers employment related) or workplace

action” See Burlington Northern, 126 S.Ct. at

2.40. In reaching its) decision. the Court

compared the kev language of Tithe VIPs anti-

discrimination provision with the anti-retaliation

provision. It noted that the anti-discrimination

provision “explicitly limits the scope of that

provision to actions that effect emplovment. or

alter the conditions of the workplace.” However.

the Supreme Court also noted that “no such

limiting words appeared in the anti-retaliation

provision.” Id at 2411-12.

Petitioner admits that she is layman of law.

however. from the clear interpretation of this

Court. the anti-retaliation provision states, “no

such limiting words” concerning actions that

affect employment or alter the conditions in the

workplace. [f this interpretation is correct, this

Court must resolve further conflict: within the

circuits. because the 11'* Cireuit’s opinion “district

court found that Petitioner's complaint — of

harassment could constitute statutory protected

activity and that her termination was an adverse

employment action’. However. the — court

concluded that Petitioner failed to prove causation

by a preponderance of evidence (App. 33, 34).

Apparently, the district) court found that

Petitioner had established that Respondent

reason for firing her was pretexual (App. 6&8: App.

68. fn 36). However, the time span between the

protected activity and the adverse employment

action was not casually related (App. 47). Once

again, from this Court's reading of the anti-

retaliation provision, “there is no such hmiting

words appear in the anti-retaliation provision that

effect the employment or alters the conditions of

the workplace”. If such reading 1s correct. then

this Court must clarify “causation” between the

Circuits. to clarify, the true meaning of the anti-

retahation provision. § 703(a) anti-discrimination

provision states: “It shall be an unlawful

employment practice of an emplover

1) to fail or refuse to hire or to discharge

any individual. or otherwise to discriminate

against anv individual with respect to his

compensation terms. conditions. or

privileges of employment because of such

individuals race. color. religion. sex. or

national origin.”

2) to limit. segregate. or classify his

emplovees or applicants for employment in

any way which would deprive or tend to

deprive any individual = of | employment

opportunities or otherwise adversely altect

his status as an emplovee. because of such

individuals race. color. religion. sex. or

national origin.”

and § 70-Ma) anti-retaliation provides impertinent

part as follows:

“he shall be oan unlawful) employment

practice for an emplover to discriminate

mvainst any of his emplovees or applicants

for employvment...because he has opposed

any practice made an unlawful

employment practice by this subchapter, or

because he has made a charge.

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this subchapter”.

The 11% Cireuit noted, * The ereation of a

complaint log only becomes “material to a

reasonable emplovee™ once the employer uses that

log as the basis for disciplining or terminating the

emplovee. Burlington, U.S. at __ .. 126 S.Ct. at

2409. Thus. Dar Dar’s termination was the

adverse action, not the creation of the complaint

log.” (App. 33. fn &: App. 42. fn 12).

However, the 11" Cireuit failed to explicitly

determine whether the creation of the supervisor

log was the causation between the unlawful

emplovment practice and the adverse employment

action.

A. Disparate Treatment

The 11" Circuit noted that. to establish racial

discrimination, plaintiffs must show that thev

suffered an adverse employment action. But the

court cited its previous pinion, in Davis vc. Town

of Lake Park, 245 F.3d 1252, 1240-41 (11" Cir.

2001). that held: 1) Not all employer conduct that

negatively affects an emplovee “constitutes

adverse employment action” and. 2) To prove an

adverse employment action, an emplovee “must

show oa serious ands material change” in

employment terms or privileges.

Moreover. an emplovee’s subjective view of the

significance and adversity of an emplover's action

does not control “The employment action must be

materially adverse as viewed by ao reasonable

person in the cireumstances .

The court held that a written reprimand didn't

constitute an adverse employment action, because

it didat lead te any tangible harm. such as lost

pay or benefits or denial of a promotion.

Moimstant) case. district court) noted that

Petitioner had brought evidence (in the form of

Meissner’s deposition testimony) that ereated a

genuine issue of material fact as to whether

Respondent's purported reason for terminating

her was pretextual (App. 48). Furthermore. it

appeared that) Petitioner was questioning the

lewitimaecy of the complaints that oceurred at the

Track were logged (App. 68, fn 36: App. 42. fn 12).

District Court) noted that) Petitioner was

terminated because of the complaints that were

“Hall told Messner that thes wanted to fire Petitioner because she

comphimed toe much about people touching her butt. but thes were

afraid because she would go to the NAACP CETL, SS: 12-16).

logged (App. 34: App. 42 fn 12). Mareh, 2002.

Petitioner complained to Berkobein about. the

unwanted touching and he testified = that

Petitioner was trving to set them up for a big

lawsuit (TT1. 210:3-24) and that he wanted to

terminate Petitioner, but it was not his decision to

make at that time (Berkobein, depo 21:5-7).

Berkobein gave conflicting testimony = stating

that he did not write Petitioner's termination

letter (Berkobein. depo 25:12-14: 27:23-25) and

finally testifving at trial that “he “did write

Petitioner's termination letter (TTI, 221:21-

224:18). Burlingion, _ U.S. at _... 126 S.Ct.

2409 (App. 33. fn 8). (emphasis added)

At instant case. Respondent operated a business

since 1936 without) any documentation — of

emplovees’ performance". The record states that

on November 9. 2002. Petitioner went to Larry

Hall. Hall testified that he gave Petitioner's

complaints back to the supervisors (Hall, depo.

24:1-5). January. 20083 the supervisors created

the Supervisor's Log. The creation of the log

became “material” and formed the basis for the

material change in Petitioner's emplovment terms

"The record shows that Respondent estublished its first written

sewual harissment policy, complaint procedure and retahiation policy

on April 1, 2008 seven months prior te trial (Pla bx S52) (emphasis

added). The emplovees of Respondent's business were not credible in

discussing that there was no written polices prior to April |,

2005.CApp. 33. fn 21). An attempt to fraud the Courts].

or privileges adverse employment action| or a legitimate.

non-discriminatory reason for — terminating

Petitioner [Hater, Owner/General Manager

testified that he did not investigate to determine

whether Petitioner's termination was of a

retaliatory or discriminatory nature (TT). 49:7-

130}. Distriet court stated that “defendant has

said, bam telling vou a non-diseriminatory reason

we fired Ms. Dar Dar... (PT. 239:16-20).

Complaints logged into the Supervisor Log (Pla

Ix 50):

1) Page 7. Marlow Spivey, rude to customer, one

more complaint emplovee gets one month off warn

by myself (Chessser) 2/4/03 (TT. 572-5823): (TPZ.

8.1:2-80:9).

2) Page 8. Jerry Dardar, REPRIMANDED. rude

to patron. She was warned for last time. ONE

MORE COMPLAINT. OUT OF HERE. 2/8/03

(Chesser) (TT2, 6723-68:17): (PT2. 85:-87:11).

Chesser testified that the supervisor's log was

created by the supervisors, Jan. 2003 and prior

to that time, Dar Dar had many customer

complaints. The customers’ complaints were “her

rump: “her rump. her rear end” (PT2. 98:16-

100210) (App. 42 fn 13).

3) OUPage: 614.0 May 19, 2003. Dardar.

(TERMINATED). refusing to wait on customer,

(Chessser).

“

‘

: A

Chessser testified that he recommended Dar

Dar to be terminated] (TT2. 101:18-102:1).

4) Page 15. May 24. 2003. Jerry Dardar.

customer informs me that Dardar is a_=srude

individual Josh Mannis (Pla Ex 56) (Chesser).

(later Gilley scratched Mannis name and

inserted Willie Jackson (Pla Ex 50. p 15). Gilley

and Chesser gave conflicting testimony at trial)

(App. 42. fn 12) (TT2.) 15:13-18:24): Chesser

testified that both Mannis and Jackson came in on

the same day. May 24. 2008 (TT2. 79:9-83:8):

(COURT, TT2, 228:21-229:10).

X) Page 22. Georgia Bertrand = discussed

complaints from customers alleging missing

tickets and short) changing customer = (3!

complaint inside a month) (Chesser).

6) Page 23. Guzman. Window #503) several

complaints were made by patrons. — Patrons

complained teller was very combative and verv

rude. After talking with teller noticed he was

intoxicated and was ask if he had been drinking

he admitted that he had been. Teller sent home

for day. Also was told last chance (Chesser)

(Gilley. TT2. 62:-63:10) (Chesser, TT2, 91:14-23).

Gilley testified ldefonding Guzman's

reprimand], “he wasnt really rude. The

customers and the tellers communicate with each

other. a lot of time the customers could be wrong”

(TTS. 3527-33):

7) =Page 28. Bertand caught stealing patrons

ticket. Reprimanded and warned. If any: any

complaint comes back on this emplovee she is to

he dismissed. She offered no explanation to

customer nor to Gillev. who was the supervisor on

the floor (Chesser) (Gilley. PT2. 64:7-20).

B. Retaliation

In Gupta, 212 F.8d 571, 585 (11 Cir. 2000) the

Supreme Court held that the supervisor's conduct.

While perhaps “annoving or inappropriate.” was

not sufficiently serious to support) ao sexual

harassment claim. Id.

In hight of Faragher, 534° ULS. 775 (1998),

Ellerth, o25 U.S. 742 (1998) and Aolstad v.

Amertcan Dental Assn. 119 S.Ct. 21718 (1999) in

KEOC’s Guidelines states. “AJ written sexual

harassment policy should typically begin with a

general statement of the emplover’s intention to

comply with all apphieable federal. state. local

rules and equal emplovment opportunities laws,

and a prohibition of sexual and other forms. of

harassment and discrimination. Some other

Issues relating to sexual harassment prevention

that should be addressed by emplovers. although

they may be handled more appropriately through

separate company policies. inelude | manager-

subordinate romances.'! conduct at company-

bven af such relanonships are truly consensual, they invelye

substantial risks of Titigation and lability. Developing a polices to

siddress such rekitionships is difficult. A complete bun may be

difficult to enforce and aii have negative morale consequences,

RTM ET Oa NTE SON hg gS

sponsored entertainment events and business

trips.!=.....°

However, When harassment is found against a

supervisor, our Supreme Court has concluded that

an emplover will be held- strictly liable for

equitable damages -. that is. directly responsible.

without regard to fault. for restoring an aggrieved

party to the terms. conditions and privileges they

would have enjoved but for the harassment. This

may include hiring or reinstating the victim.

disciplining. transferring or firing the harasser.

providing back pay and front) pav (punitive

damages may also apply) and taking preventative

and remedial measures at the workplace.

possibly even forcing good emplovees to feave. Alternatively.

disclosure of such relationships can be required. so the emplover can

be alert to and warn the parties against any possible favoritism.

indiscreet conduct. of coercion. ...."

Gilley testified that he dated both. Man Horton and Vinson (Gilles

depo 33:14-34:9) Spl vy. Shonev's Ine. 97 F.3d 488. 40.011" Cir.

1990).

Many sexual harassment cases involve conduct during company -

sponsored partics, so it may be appropriate to eliminate or linit

alcohol consumption at such events und take other seps to keep them

from vetting out of hand. Similarly. harassment offen occurs during

business travel. and a policy against visitation of custe;ners or other

emplovees in thetr hotel rooms or late at night could belp keep

womasees out of trouble. See. eg.. Brown vy. Perry, WS4 F.3d 388

(4° Cir, 1909) (sexual hararsment allegations arising out of non-

nindaton evening social gathering in supervisor's hotel suite during

business conference).

ae]

—_

District Court denied Petitioner the right) to

claim punitive damages during Preliminary Pre-

trial Conference without hearing the evidence of

the trial (Doe. SO. 28224-29213: 30:7-22): also.

omitted punitive damages from Jury Instructions

at Bench Trial.

EEOC v. Stock, Ine. 2007 WL. 11191186 (6% Cir.

2007) (Unpublished) The court reversed the entire

case based on the district court's erroneous refusal

to submit a punitive damage claim requested by

Plaintiff in a sexual harassment and retaliation

claim. The court: found the employver/owner's

comments sufficient to raise a facet issue as to

miatice or reckless indifference sufficient — te

support an award of punitive damages. Id.

At instant case. the supervisor, Chesser. (Grant

and Guzman. ineluded) constantly — invited

Petitioner to drinking parties after working hours

and in the event. she became impaired, they will

take her to Chesser’s house: followed by laughter

and eigveling. Petitioner declined all invitations.

Petitioner states that Chesser. logged all of the

complaints against her and could not) properly

explain the tampering with the supervisor's log

(App. 42 tn 12: App. 42 fn 13) (Pla Ex 50. 56).

Chesser continued to log complaints against

Petitioner after she was terminated. (Petitioner

Wis terminated on May 19. 2003 (stating:

Refusing to wait on customer (she was not at work

that dav)) and a complaint was logged on Maw. 24.

2003 (stating Dar Dar an unpleasant individual

and verv rude). Terminated letter stated.

Occurrence date: Mev 19, 2003. Today's date: Mav

19. 2003 Explanation: “Rude to customers and co-

workers been warned during the vear” (written by

Berkobein: signed by Hall) (Pla Ex 46). Chesser

allowed the unwanted touching to continue during

his shift (Berkobein’s Note Pla Ex. 54. stating

“....these incidents happen during Chesser's

shift”).

The supervisors and = managers — [decision

makers} knew of Petitioner's complaints at the

time of termination. The districi court stated,

“Chesser warned plaintiff that if there was one

more complaint. he would fire her (App. 41): (App.

48).

The reecrd shows, that the district court stated,

“Sex discrimination and hostile work environment

affirmative with being permitted by the

supervisors” (TT2, 236:2-4).""

See e.g. Hurley v. Atlantic City Police Dept. 174

F.3d 95. 118 (3r¢ Cir. 1999) “Ellerth and Faragher

do not... focus mechanically on the formal

existence of a sexual harassment poliev’: if not

effectively enforeed. such a policy is no defense).

’ Berkobein testified that he investigatives bv looking at a person's

eves. Many times the eves say something other than what the mouth

is saying (Berkobein depo, 21:17-22:6): (See Pla bx 54)

4 A

;

ide hs

AE AI e mee ie et

The Supreme Court) reversed, reinstating the

judgment for the plaintiff. It conducted a

thorough and esiensive analysis of the agency

law. discussing the possibility of basing lability

on the theerv that the supervisors were acting

within che seope of their employment when they

engaged in the harassment or on the theory that

the supervisor's ageney relationship with the

emplover aided them tm committing — the

harassment. The Court) rejected the scope-ot-

emplovment theory and concluded that “the aided-

by-agenev relationship) principle... provides an

appropriate starting point.” Faragher, 864

MoSupp. 1552 (8.1. Fla. 1984). Because “there is a

sense in which a harassing supervisor is always

assisted in his misconduct by the supervisory

relationship.” ld. at 782 (the ageney relationship

affords contact with an emplovee subjected to a

supervisor's sexual harassment, and the victim

mav well be reluctant to accept the risks) of

blowing the whistle on a superior. When a person

with supervisory authority discriminates ino the

terms and =~ conditions — of ~— subordinates’

employment. his actions necessarily draw upon

his superior position...) however. unrestricted

application of this principle could result in

emplovers always being vieartously linble for

supervisory harassment.-

Therefore. Gupta should) be abrogated as a

governing precedent ina quid pro quo harassment

“asc When the supervisors advances are rejected

and the victim = is” reprimanded = [Chesser].

“papering occurred” [Chesser], and recommended

termination [Chesser] (App. 42).

At instant case. the Respondent employed 223

employees (three were black), according to their

adversity report filed with EEO, September, 2003.

A negative Personnel Action Form (termination

letter), stating. “rude to customers and = co-

workers” (App. 68, fn 36): (App. 65. fn 34).

1) Respondent withheld Petitioner's monies

alter she was terminated (Sec STATEMENT. p 7.

#21) Prvor v. Wolfe. 196 Fed. Appx. 269 (5' Cir.,

2006) (unpublished). Petitioner states that the

issues that were not addressed by defendant and

district court are UNDISPUTED FACTS (App. 62

fn 31). Thus. in accordance with Rule 12(b)(d)

dismissal of this claim was improper.

2) At the time of termination, supervisors and

management knew of Petitioners protected

activity. Obviously, in determining the decision

maker had prior knowledge of the protected

activity. It Is essential to identify who the decision

makers are. Emplovers are well advised to the

extent possible to segregate employees who deal

with emplovee complaints and those who are

Sag

POSE ae

“aN

=< -

responsible for omaking decisions — regarding

tangible employment actions: the more segregated

this function are, the lower probability that a

decision maker will have prior knowledge of

protected activity. See Fenton vu. Hisan. Ine. 174,

Fok S27. 831-52 (6 Cir, 1999). A supervisor

need not be empowered to make — final

determinations with respect) to an) employee's

ultimate employment decisions to be considered a

supervisor for Tithe VIE purposes. Alier cv. Bank

of Am., 600 Fld 211, 213 (9 Cir. 1979).

This court should find that the Respondent

supervisor, Howard Chesser would — invite

Petitioner to drinking parties after work, and told

her that if she got drunk. they will take her to his

|Chesser] house. Petitioner refused all invitations,

partly because of the gossip that came back to

work as a result of the drunkenness and = her

personal survey that showed. not many females

attended the parties and/or sleepovers. Petitioner

feared that once Chesser became her supervisor

that he would hold a grudge against her for not

attending the parties. she was right.

Chesser. supervisor, who invited Petitioner to

drinking parties allowed [high school classmates! §

and drinking buddies] to harass Petitioner each

time she worked. Whenever Petitioner complained

moe

“Capiiane, depe 10:2

See Disparate |reatment. #6 (Guzman intoxicated at work)

about the unwanted touching. Chessser would

ignore the complaints. Throughout Petitioner's

employment she kept asking for assistant from

the supervisors. All of the complaints logged

against Petitioner were by Chesser and he was

the supervisor that actually fired Petitioner. (See

Miller v. Bank of Am., 600 F.2d 211, 213 (9" Cir.

1979): Fenton v. Hisan, Inc. 174. F.3d 827, 831-382

(G6 Cir.. 1999).

Respondent was aware that Chesser was one of

the supervisors who dealt with Petitioner's

complaints and was responsible for the adverse

employment action. (TPT2, 101:18-102:1)

, & Certiorari Should Be Granted To

Resolve Conflict Between The Circuits

f On The Issues Of When Allegations.

: Statements, And Incidents Occurred

In A Vacuum, Separate And Distinct

FRET Ee

From The Rest Of The Record During

Summary Judgment.

This Court has ordered that in considering

summary dismissal “the court must draw all

reasonable inferences in favor of the non-moving

party and it may not) make credibility

determination or weigh the evidence’. Reeves, 120

S.Ct. at 21210. In Reeves. this court also cited

Anderson tv. Liberty Lobby, Inc. 477 U.S. 242. 255.

ordering that) “eredibilitv. determination. the

weight of the evidence and the drawing of

legitimate inference from the facts are jury

function not those of the judge”.

The ‘Tenth Cireuit has emphasized that we must

draw all inferences in favor of the party opposing

summary judgement. Prujillo cv. Cniv. of Colorado,

Health Sciences Cntr. 157. F.8d 1211. 1218 (om

Cir. 1998) (stating that in reviewing summary

judgment disposition Courts draw all reasonable

inferences ino favor of the non-moving party):

Curtis vt. Okalahoma City Pub. Sch. Bd. of kduc..

iy Bitd 1200, 1214 G0" Cir. 1998). Cin

determining whether a genuine issue of material

fact exists. the court must draw all reasonable

inference in favor of the non-moving party). Inia

sexual harassment case, the district court should

view the evidence in’ context not) simply in it

sermented parts. This Court has deseribed the

inquiry governing the evaluation of a hostile work

environment claims as follows: (the existence of

sexual harassment must be determined in light of

the record as a whole. and the tier of facts must

exumine the totality. of the circumstances.

including context in which the alleged incident

occurred’, Perry ce. Federal Home Loan of Topeka.

195 BSd 1257. 1262 00 Cir. 1998) (quoting

Meritor Savings Bank v. Vinson, ATT ULS. 57. 69.

OP Led 2d 49. 106 S.Ct. 2399 (1996), cert. denied,

926 ULS. 1089, T1198 S.Ct. 1854, (1999). Such a

thorough examination of the reeord is) required

because “the verv term ‘environment’ indicate that

alleged]y discriminatory incidents should not be

examined = oin- isolation.” Id. under this

interpretation because conduct is not a gender

35)

base may form apart of the context. or

environment in which the discriminatory conduct

is alleged to have occurred, such conduct mavbe

relevant) to. and should be considered — in,

evaluating a hostile work environment claim. In

Hicks v. Gates Rubber Co., 833 F.2d 1406. 1415

(10'» Cir. 1987). that court held “that evidence of

a genera! work atmosphere ...as well. as evidence

of speeifie hostility toward the plaintiff--is an

important factor In evaluating the claim.” Thus,

even if some of the alleged conduct was not

“explicitly sexual in nature’, Smith v. St. Lois

Cniv., 109 F.3d 1261, 1265 (1997) (citation

omitted). If it reasonably could be inferred that

the conduct was related to gender or arose out of

the context in which admittedly sex and gender

related conduct occurred, then it is for the

factfinder to decide whether such an inference

should be drawn. Crawford vt. Runyon, 37 F.3d

1388. 1341 (8 Cir. 1994) (explaining that

“because discrimination cases often depends on

inferences rather than direct evidence, summary

judgment should not be granted unless” the

evidence could) not) support) anv reasonable

inference for the non-moving party’.

Other circuits have held that in order for a

plaintiff to prevail [s]he must prove that the

incidents were based on her sex in_ the

‘enviroament’ thereby limiting the plaintiff ability

to) prove a-prima facie case of a hostile

environment. Lack v. Walmart Store, Inc. 240

ait

Bad 255 68" Cir. 2001): Mendoza, 195 Fusd. 1258,

s ZAG CET! Cir, 1909).

4 In the instant case. the district court: should

3 have reviewed the case in context rather than

4 breaking each incident into isolation. — There

should have been a thorough examination of the

records, — depositions. — interrogatories, and

admissions. The term ‘environment’ indicates that

alleged|y discriminatory conduct: should not) be

examined in isolation like the district court: did.

a The conduct that is not gender based may form a

.. part of the context of an ‘environment’ in which

discriminatory conduct ts alleged to occurred, such

conduct may be relevant to and should be

considered in evaluating oa hostile work

environment claim. The district court dissected

Potitioner’s case as these allegations, statements.

and incidents occurred in vacuum, separate and

distinet from the rest of the record. As if, no two

incidents were related: as if. no people influenced

each other: or acted in concert. and if all the

defendants assertions were true. However.

district court is required by the Supreme Court of

the land to consider all evidence in context of the

complete case. not in piece meal and is required to

draw all) necessary inferences in’ hight” most

favorable to the plaintiff! It is reasonable to

believe that the incidents concerning unwanted

touching by co-workers a driving force that the

a Ee

other incidents derived from. 1) the statement by

"Guzman “unzip, untie, unwrap and a whale of a

dick fell in the water” was sexual in nature,

however, when the Petitioner complained about

his harassing conduct to the supervisor, Brodie

began to harass the Petitioner by punching her

and making explicit statements towards her in

continuance of the gender base or closely related.

At trial. supervisors testified that they

investigated Petitioner's complaints against

Guzman: they verbally reprimanded him on

several occasions. however. there were no

repercussion from the reprimands. The physical

unwanted touching by Capitano was gender based

and the Respondent based the touching on the

area being too small and the district court granted

credibility to the supervisors and Capitano!’ (App.

19), (App. 451 fn 20). (App. 16). However. a

reasonable person in Capitano’s position with

numerous complaints by the Petitioner to the

supervisors concerning unwanted touching.

Guzman’s harassing conduct towards Petitioner, See Statement #3,

#8, 6, ©7 [Olficer Ressler’s subpoena was quashed (Doc, 112)]. #8,

eyed edb ets,

" Capitane testified, “Well. | just won't tease with people no more.

You know what] mean’? If people are going to try and get you for

sexual harassment for having fun.” (Capitany depo 37:20-22).

Capitane testified that he touched other females and they did not blow

up or nothing (Capitanoe depe 22: 19-22) At trial. he testified that he

bumped into fire extinguisher but not no other people (TTT. 234:22-

23).

common sense would tell vou to go the other way.

Additionally, district court granted credibility to

Reker. a verv petite Asian woman who carried an

oxygen tank fat trial] (App. 14)! Each incident

that petitioner alleged was like reading a book, if

vou read the whole book, vou could see the hostile

environment however if vou skipped two or three

chapters, it would be difficult’ to) see the

environment as hostile. This is why it is of great

constitutional value to have all the’ circuits

comply with this Court's precedence. Therefore. no

other individual of our great country would have

to suffer the emotional distress that Petitioner

has endured,

On Appeal. the 11! Cireuit agreed with district

court that the first seven incidents were not based

on Petitioners gender or sex. However, 11"

Circuit analysis (No. O7-10618DD) is — not

consistent with its prior opinion (No. 06-

1O245DD)" and other circuits. nor with this

Court's precedent. See Harris, 510 U.S. at 25, 114

Chesser testified that he talked to Reker about the meident and

“she's just she’s fun. She's alotet tun. And | talked to her about

i. andl she sad that she had done what she did ingest” (EPI 98:>.

1p. Stee bial at for fun” (PTD, 88:12).

Reker testified that she touched Petitioner's butt again, after she wits

forked rot tee EE PED TOTS,

“Breaking the alleged harassing conduct down aet-by-aect and then

concluding that cach aet is “ielited™ is a bit like executing a selt-

fuifitliny prophees: even act viewed individually appears isolated”

tA\pp. 30d.

S.Ct. 867: Anders, 895 F.2d at 1485. ([t}he

offensive conduct is net necessary require sexual

overtones in every instance”): Lipsett cv. Univ. of

Puerto, 846 F.2d 881, 905 (1"' Cir.. 1998) “[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 Construction Co., 842 F.2d 1010. 1014 (8

Cir.. 1988) (“intimidation and hostility towards

women because they are women can obvious

result from conduct other than sexual advances’).

Hicks, 833 F.2d) 1406. 1414 G0" Cir. 1977)

(rejecting narrow definition of sexual harassment

that require predicate acts to be clearly sexual in

nature) McAinney v.. Dole. 765 F.2d 1129. 1138

(D.C. Cir. 1985) (we have never held that sexual

harassment or other unequal treatment of an

emplovee or a group of emplovees that occurs

because of the sex of the emplovee must, be tlegal

under Title VIE, takes a form of sexual advances

ov of other incidents with clearly overtone and we

decline to do. so now”): Vicki Schultz.

Reconceptualizing Sexual Harassment, 107 Yale

LJ. 1764-74 (1998).

District court) stated “there was) so many

complaints about things that were bad some

sexual, some not sexual, sort of coupled together”

(TT, 239:11-14). In its view. the court

recognized that some of the incidents were sexual

und some were not however, the court did not

40)

determine whether these incidents formed a part

of the context of the environment. District court

went outside the scope of its authority by

weighing the evidence and making credibility

determination and drawing legitimate inferences

from the facts. when that was a function of the

jury during a trial not during summary judgment.

3. Certiorari Should Be Granted To

Resolve The Cireuits On What

Constitutes Hostile Work Environment

Harassment Under the Totality Of The

Circumstances And To Finally Clarify

Federal Rule of Civil Procedure 50(b)

The 21! Circuit states) in its) opinion.

“Establishing that harassing conduct 9 was

sufficiently severe oor pervasive to alter oan

emplovee’s terms and conditions of employment

includes a subjective and an objective” Mendoza tv.

Borden, Inc.. 195 F.8d 1238. 1246 (11 Cir. 1999)

(App 27). Whether the objective component has

been satisfied “can be determined only by looking

at all of the cireumstances”. Harris, 510 ULS, at

23. TIA S.Ct. at 387. Courts must “examine the

conduct) ino context. not as fsolated acts. and

determine under the totality of the cireumstances

whether the harassing conduct is— sufficiently

severe or pervasive” to create a hostile’ working

environment. Mendoza. 195 F.3d at 12-46.

At instant ease. the 11'" Cireuit was not aware

of the 21 acts of conduct that Petitioner initially

filed (SAC), (however, Petitioner did establish the

sexual and non-sexual incidents in appeals that

were not addressed by the district) (App. 5). before

the district court caused a manifest injustice (TT1,

9:15-20). Vance v. Southern Bell Telephone and

Telegraph Co... 8338. F.2d) 1508 (11% Cir. 1989)

(this court set forth an analytical framework for

deciding when. under the votality of the

circumstances. the plaintiffs case of harassment

to sufficient to withstand a defendant's motion for

summary judgment). The .uestion in Vance was

“whether the plaintiffs case was sufficient to

withstand «a motion for summary judgment

notwithstanding the verdict under Fed. R. Civ. P..

Rule 50(b). Rule 50(b) has not been amended to

substitute the term “judgment as a matter of law”

for direct verdict and JNOW. In reversing the

district court, we explained that the district court

had erred in granting the motion because it had

fniled to consider all of the circumstances in

context and had instead analyzed each alleged

instance of harassment separately. Apparently,

Vance has now either been forgotten or is being

ignored, because the court today makes exactly

the same mistake the district court made ten

vears ago’).

The 11" Circuit agreed with the district court on

issues 1-7, stating that “they were neither sexual

in nature nor based on Dar Dar's sex”. Petitioner

states. however. awarding the seven issues to the

Respondent is a manifest of

Injustice becouse they were apart) of the

“environment” that contributed to the harassment

that created the hostile work environment along

with the other unmentioned acts-". The twenty

one incidents may not have been gender based:

however, they did form a part of the context of the

‘environment’ asa whole.

In the instant ense, the district court and 11!

Circuit's analysis is that only sexual conduct can

be evaluated in context under the totality of the

circumstances contrary to this Court's holding in

Harris v. Forklift. Ine. 510 ULS. 17. 23. 114 S.Ct.

367. 37 (1993) and conflicts with other circuits on

what conduct is considered under the totality of

the circumstances. See Hall v. Gus Construction,

Co. SAZ F.2d 1010, 1014 (8 Cir. 1988)(holding

“the predicate act underlying a sexual harassing

claim need not be clearly sexual in nature...°:

a. t. Tavlor. — F.2d 141. 36 FEP cases

P23. 127 (DAC. Cir... 1985) atfd. in part and

eas in part. 477 ULS. 57. 40 FEP cases 1822

(1986): Broderick cv. Ruder. 46 FEP cases 2171

(D.C. 198sMholding that evidence of the general

work atmosphere. involving emplovees other than,

the plaintiff is relevant of the issue of whether

there exist an atmosphere of hostile work

environment Which violates Tithe VID.

“App. 62. tn ah

St are Se eee, el aes ae ae 2 SE Se oe ee ae te Os os ae oe ss i

433

There seem to be conflict within the circuits as

to what constitute a hostile work environment. In

Lehmann tv. Tovs'R’ Us, 132. Nid. 587. 592 (1993).

the Court) defined hostile work environment

sexual harassment as: “discriminatory conduct

that a reasonable person of the same sex in

plaintiffs position would consider sufficiently

severe or pervasive to alter the conditions of

employment and to create an intimidating. hostile

working environment. One cannot inquire

whether the alleged conduct was “severe or

pervasive without knowing how) severe or

pervasive it must be. The answer to that question

hes in the other prongs: the conduct must be

severe or pervasive enough to make a reasonable

woman believe that the conditions of employment

are altered and her working environment. is

hostile”.

The N.J. Supreme Court clarified what the other

prongs were. this Court must establish a uniform

and predictable standard as a matter of law

because most circuit have altered and or ignored

this Court's holding in Harris. 510 U.S. 17, 21

(199-3).

CONCLUSION

For the foregoing reasons. this Court should

GRANT the Petition For A Writ Of Certiorari.

Dated: January 27, 200%

Respectfully submitted.

Geraldine Dar Dar. Pro Se

Post Office Box 7102

Tampa. Florida 33675

Telephone (813)931-8503

App. |

UNITED STATES COURT OF APPEALS

: ELEVENTH CIRCUIT

GERALDINE DAR DAR.

Plaintiff-Appellant.

No. 07-10618SDD

(1).C_No.8:04-01055

2 SCB-TBAMD)(M.D.F)

(Filed: Oct. 380. 2007)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Grevhound Track

Defendant-Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

ORDER

BEFORE: BLACK. CARNES and MARCUS.

Circuit Judges.

RIES EB

App. 2

PER CURIAM:

The Petition for Rehearing is DENIED and no

Judge in regular active service on the Court

having requested that the Court) be polled) on

rehearing en bane (Rule 35. Federal Rule of

Appellate Procedure), the Petition for Rehearing

En Bane is DENIED.

ENTERED FOR THE COURT

/s/ | Megible;

ORD-42

App. 3

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR,

Plaintiff-Appellant

No. 07-0618DD

(D.C. No.8:04-01055

v. SC B-TBM)(M.D.F)

Filed: Sept. 7. 2007)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Grevhound Track

Defendant-Appellee

—_—~-

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ORDER

Before BLACK, CARNES and MARCUS. Circuit

Judges.

PER CURIAM:

App. 4

Geraldine Dar Dar appeals the district court's

judgment in favor of her former emplover, AOC. in

her hostile work environment sexual harassment

case. brought pursuant to the Florida Civil Rights

Act and Tithe VIE! oo) This is Dar Dar's second

appeal in this matter.

Before the first appeal. the district court

granted summary judgment for AOC on Dar Dar's

retahation claim) and found that most of the

incidents which formed the basis of her hostile

work environment claim were insulficient at oa

matter of law to support such a claim. As vo the

remaining incidents, where Dar Dar's coworkers

touched her buttocks, the district court concluded

that they could be severe enough to have

subjected her to a hostile work environment. The

district court: conducted a bench trial on) the

remaining incidents and. at the end of it. entered

judgment for AOC.

Dar Dar appealed the judgment) for AOC,

arguing that the distriet court) erred: 1) in

eranting summary judgment for AOC on) her

retaliation claim: 2) in) granting summary

judgment on her hostile work environment claim

to the extent that she reed on incidents other

Phe FORA ts patterned after Fithe VEL and thus federal case law

dealing with ithe V This applicable to employ ment discrimbxition

chums brought under Flora law. Manet vs. Brown, PL Bad

biod. POS nD bth Cir. 1999), Cheretore. Dar Dar’s FORA chim

will annals zed together with the Title Vil elann.

App. 5

than the buttocks touching: and 3) in granting

judgment to AOC at the subsequent bench trail on

the hostile work environment claim based on the

buttocks touching incidents.

We affirmed the summary judgment for AOC on

her retaliation claim and agreed with the district

court that the majority of incidents alleged by Dar

Dar to have created a hostile work environment

were insufficient as a matter of law to support

such a chim. However. we reversed the court's

summary judgment as to two of the incidents

found by the court to be insufficient as a matter of

law to support a hostile work environment claim --

the inappropriate comments made by Robert Diaz

and Tony Guzman -- concluding that these.

together with the buttocks touching incidents.

raised a genuine issue of material fact as to Dar

Dar's hostile work environment claim.

We vacated the judgment and remanded for the

district court to determine whether the following

alleged acts subjected Dar Dar to a hostile work

environment: 1) Dar Dar being touched repeatedly

on her buttocks by co-workers: 2) Diez asking Dar

Dar if she had seen or worn panties with a “built-

in butt: 3) Guzman telling Dar Dar that he had

seen an individual's “whale of a dick” in the

restroom. Dar Dar vt. AOC No. 06-102485 (11th

Cir. Ovt. 23, 2006). On remand, the district court

found without further evidentiary proceeding that

these acts. taken as a whole. did not establish that

Dar Dar was subjected to a hostile work

environment. :

App. 6

Dar Dar contends that this Court erred in the first

appeal by not direeting the district on remand to

consider evidence oof the other non-sexual

incidents that we coneluded in the first: appeal

were insufficient as a matter of law to support a

hostily work environment claim and to consider

AOC'’s alleged failure to take effective action to

address Dar Dar's complaints. Because we have

already ruled on these matters. however. we are

bound by the law of the case to reject this

contention. “The law of the case doctrine bars

relitigation of issues that were decided. cither

explicitly or by necessary implications, ino an

earlicr appeal of the same case”. United States te.

Jordan, (29° F.8d 1082. 1085 (11 Cir. 2008).

Although. exceptions exist. such when “we are

convinced [that] our decision in the prior appeal is

clearly erroneous and following it would work a

manifest injustice” none of them are present in

this case. Td.

Dar Dar's second contention is similar to the

first. in that it essentially challenges one of our

rulings in the first appeal Dar Dar contends that

we erred in affirming the district court's grant of

summary judgment to AOC on the retahation

Claim. See Dar Dar, No. 06- 10245. at 11. For the

same reasons her first contention is barred by the

law of the case doctrine, this one is also.

Dar Dar’s third contention is that the district

—

oiters

{

‘7

‘

;

—— > tye eich

mt aes —

peapuant

—_

App. ‘

court failed to consider the “built-in butt” and

“whale of a dick” comments and the touching of

her buttocks under the totality of — the

circumstances analysis, as we directed it to do.

See id. To the contrary, the district court

explicitly considered all of the circumstances in

concluding that the facts alleged by Dar Dar did

not establish a hostile work environment claim

under the FRCA or Title VIL For example. the

court said:

[Even] if Capitano and/or — Reker's

touching could be considered

sexual in nature or based on

Plaintiffs sex, consideration of their

conduct in addition to Diaz and

(iuzman’s comments would not

change the outcome in this ss case,

because it is clear to the court that these

incidents, considered together. = were

not so severe or pervasive that thev

materially altered the conditions of

Plaintiffs employment.

(emphasis added)

Finally, Dar Dar challenges the district court's

legal conclusion that she did prove that all of the

alleged sexual harassment together created a

hostile work environment by a preponderance of

the evidence. We review “the district court's

. analysis of law de nevo”. Doe v. Dekalb Co. Sch.

Dist... 145 F.8d 141, 1445 (11' Cir.. 1998).

hea

App. 8

Tithe VIE prohibits “hostile work environment”

sexual harassment. See Walton cv. Johnson &

Johnson Serv... Ine. 847 F.bd 1272. 1279 1 Cir,

2003). To establish a prima facie case of hostile

work environment, a plaintiff must show that: 1)

she belongs to a protected group: 2) she has been

subject to) unweleome harassment: 3) the

harassment was based upon her sex: 4) the

harassment “was sufficiently severe or pervasive

to alter the terms and conditions of employment

and ocreate oa diseriminatorily abusive work

environment’: and 5) the emplover is responsible

for such an environment. Id at 1279-80.

The Supreme Court has identified four factors to

consider in determining whether harassing

conduct is sufficiently severe or pervasive to alter

an oemplovees terms and conditions — of

employment: 1) frequency of the discriminatory

conduct: 2) the severity of the conduct: 3) whether

the conduct; “Is physically threatening — or

humiliating. or a mere offensive utterance; and 4)

Whether the conduct) “unreasonably interferes

with an emplovee’s work performance” Harris. v.

Korklift Svs Ince. S5VO ULS. 17. 28. 114 S.Ct. 867,

ab. (1993).

There were two sexual inappropriate comment

and two incidents of intentional buttocks touching

over the course of 22 months. In Gupla cv. Fla. Bd.

of Regents, over the course of six or seven months.

App. 9

the male supervisor of a female — professor

repeatedly called her at home, once complimented

her appearance, twice stared at her. once placed

his hand on her knee, once touched the hem of her

dress, once touched her ring and bracelet. and

repeatedly asked her out to lunch. 212 F.td 471.

asd (11 Cir. 2000).The Court held that) the

supervisor's conduct. while perhaps “annoying or

inappropriate.” was not sufficiently serious to

support a sexual harassment claim. Id. The two

incidents of employees touching Dar Dar's

buttocks - in one of which the touched was a

woman in her seventies - and the two risqué

comments are no more serious than the conduct

we held did not establish a hostile work

environment in Gupta. As the Supreme Court has

stated, “simple teasing, offhand comments, and

isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the

terms and conditions of employment”. Farragher

ve. City of Boca Raton, 524 U.S. 778. 788. 118 S.Ct.

2275, 2283 (1998) (citation omitted). The district

court did not err in finding that Dar Dar failed to

prove that the alleged sexual harassment created

a hostile work environment.

AFFIRMED.

App. 10

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR.

Plaintiff-Appellant

No. O7-1L0618DD

(D.C LNo.8:04-01055

. SCB-TBM)(ALD.BFO

(Filed: June 1-4. 2007)

ASSOCIAPED OUTDOOR

CLUBS. ING. d/b/a ‘Tampa

Grevhound Track

Defendant-Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ORDER

BEFORE: WILSON and PRYOR, Circuit

Judges.

BY THE COURT:

Appellant's motion to reinstate this appeal is

GRANTED.

App. 11

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR.

Plaintiff-Appellant

No. 06-10245DD

(1).C.No0.8:04-01058

¥. SCB-TBM)(M.D.F.)

Filed: May 18. 2007)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Crevhound Track

Defendant-Appellee

-— “- -——-—=—

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ENTRY OF DISMISSAL

Pursuant to 11 Cir.R.42-2(¢), this appeal is

hereby dismissed for want of prosecution because

the appellant has failed to file the record excerpts

within the time fixed bv the rules, effective this

18h day of May, 2007.

App. 12

THOMAS K. KAHN

Clerk of the United States Court

Of Appeal for the Eleventh Circuit

By: Regina Veals -Gillis.

Deputy Clerk

FOR THE COURT — BY DIRECTION

ORD--410

App. 15

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTICT OF FLORIDA

GERALDINE DAR DAR,

Plaintiff,

D.C. No. 8:04-01055

Vs SCB-TBM

(Filed: Jan. 10. 2007)

ASSOCIATED OUTDOOR

CLUBS, INC. d/b/a Tampa

Grevhound Track

Defendant.

« ORDER

This cause comes before the Court on the

Eleventh Cireuit’s opinion in this case reversing

in part and vacating and remanding in part this

Court's order granting partial summary judgment

and this Court's judgment after a bench trial.

(Doc. No. 134)

l. Background

Plaintiff worked) for Defendant. Associated

Outdoor Clubs, Inc.. as a pari-mutuel clerk. where

she was responsible for punching tickets and

assisting customers. Plaintiff filed suit

App. |4

against Defendant. alleging that it subjected her

to a sexually hostile work environment and

retaliation against her for complaining about the

harassment ino violations of Tithe VIL and the

Florida Civil Rights Act. (Doe. No. 18).

Defendant moved for summary judgment on all

claims.

With respect oto Plaintiffs hostile work

environment claims. Plaintiff identified numerous

incidents thiat she characterized is

discriminatory. Including 1) co-workers touching

her buttocks when they passed by her: 2) a. co-

worker. Tony Guzman, telling Plaintiff that he

sawoaoman in the men’s restroom unzip his pants

and “a whale ofa dick fell in the water”, and 3) a

co-worker, Bobby Diaz. asking Plaintiff is) she

wore “panties with the butt built into them.” The

Court granted Defendant's motion for summary

judgment on Phauntffs hostile work environment

claims to the extent that the claims were based on

any incidents other than the allegation that. co-

workers were touching Plaintiffs buttocks when

they passed by her. (Doc. No. 77). Plaintiff's

hostile work environment claims based on the

alleged touching of her buttocks proceeded to a

non-jury trial.

After the trial the Court made the following

findings of fret and conclusion s of law (Doc. No.

121): The evidence at trial showed that

App. 15

Plaintiff only took issue with two people that

touched her buttocks: Jean Reker and Joe

Capitano. Both Reker and Capitano” were

Plaintiffs co-workers: they were also mutucl

clerks.

The evidence at trial showed that Reker. a very

petite Asian woman who was) approximately

seventy vears old and carried an oxygen tank.

touched Plaintiffs buttocks once in March of 2002.

The touching occurred after Plaintiff had accused

Reker of touching her buttocks. Reker \had not

touched Plaintiffs buttocks prior to Plaintiffs

accusation, so Reker slapped Plaintiffs buttocks

to show her what “touching” was. Thereafter.

Reker apologized to Plaintiff.

The evidence at trial showed that Capitano

accidently touched Plaintiffs buttocks a few times

when he walked past her. since the walkways

behind the windows where the mutuel clerks

stood were narrow. leaving little room to walk.

Specifically. the Court notes that Capitano

testified that he only” accidentally touched

Plaintiffs buttocks once or twice. despite

Plaintiffs contention that he touched her buttocks

on several occasions. The Court found Capitano’s

testimony that he accidentally touched Plaintiffs

buttocks while walking past her to be credible and

the Court found that Plaintiff did not show that

his touching occurred frequently.

App. 16

The Court) found ino favor of Defendant on

Plaintiffs hostile work environment claims.

‘Specifically. the Court found that Reker’s alleged

improper touching was not sexual in nature, and

as such, it} could) not) support a hostile work

environment claim. Additionally, the Court found

that Plaintiff did not meet her burden of showing

that Capitano’s conduct was) so) severe or

pervasive that it materially altered the conditions

of Plaintiffs employment. Instead. the Court

found that Capitano’s conduct merely consisted of

accidentally touching Plaintiffs buttocks when he

walked past her ina narrow walkway.

Thereafter, Phuntif appealed the Court's

summary judgment order and the Court's reverse

judgment that was entered after the bench trial.

The Eleventh Cireuit reversed in part. vacated

and remanded in part. and affirmed in part.

Specifically, the Eleventh Circuit: reversed) this

Courts) summary judgment order as) to the

granting of summary judgment on Plaintiffs

hostde work environment claims to the extent

that the claims were based on Guzman and Diaz's

comments. The Eleventh Circuit) stated that

when determining whether conduct is sufficiently

severe or pervasive, courts must examine the

conduct ino context) and determine under the

totality. of the circumstances whether the

harassing conduet is sufficiently severe or

‘

App. 17

pervasive to create a hostile work environment.

The Eleventh Cireuit found that because this

Court denied summary judgment on Plaintiffs

hostile work environment claims to the extent

that they were based on the alleged touching of

her buttocks, this Court could not grant summary

judgment to the extent that the hostile work

environment claims were based on Guzman and

Diazs comments*

In reversing this Court on this issue, the

Eleventh Circuit stated that this Court did not

need to conduct any additional evidentiary

proceedings on remand if it determines that even

if Plaintiffs allegations about Guzman and Diaz's

comments are true. that conduct. when added to

the evidence of Reker and Capitano’s touching of

Plaintiffs buttocks. did not equate to sexual

harassment.

Beeause of the reversal of that) part of the

summary judgment order, the Eleventh Circuit

also vacated this Court's order entering judgment

in favor of Defendant on Plaintiffs hostile work

environment claims after the bench trial. As a

result. the Eleventh Circuit remanded the case for

a determination as to whether the consideration of

However. the Eleventh Circuit noted that if Plaintiffs only

dlegations of harassment were Diaz and Guzman’s coments. tt

would readily agree that those incidents were not even close to severe

and pervasive enough to alter the terms and conditions of Plaintitl’s

employment.

App. IS

Guzman and Diazs comments alters the Court's

resolution of the hostile work environment claims.

ll, Consideration of Guzman and _ Diaz's

Comments

In responding to Defendant's motion — for

summary judgment. Plaintiff submitted the

following evidence regarding Guzman and Diaz's

comments: Plaintiff alleged that Guzman sexually

harassed her in January of 2002 by telling her

that he saw a man in the men’s restroom unzip

his pants and “a whale of a dick fellin the water”.

(Pla. depo, p. 106). Plaintiff thought that Guzman

told her the story because she is a woman, so she

asked him to tell the storv to a male co-worker.

Marlow Spivey. (Pla. depo. po 108). Guzman

repeated the story to Spivey.

Additionally, Plaintiff alleges that on November

%, 2002. she punched a ticket for Diaz. (Pla. depo.

p. 171). When Diaz walked away. Guzman and

Evie Perez stopped Diaz and spoke to him in

Spanish®, (Pla. depo. p. 177). Thereafter. Diaz

came back ever to Plaintiff and asked her if she

wore “panties with the butt built into them”. (Pla.

depo, p. 172). Plaintiff saw Guzman and Perez

wiseling while this was occurring. (Pla. depo. p.

“Phuntlt dees not speak Spanish and does not know what Guzoian

and Peres sand to Diaz. (Pla. depo, p. 172)

App. 19

172). Plaintiff got angry with Diaz and told him

that it was none of his business. (Pla. depo. p. 172-

73).

Upon considering this evidence of Guzman and

Diazs comments in addition to the evidence

submitted at trial of Reker and = Capitano’s

touching of Plaintiffs buttocks. the Court finds

that Plaintiff still has not) proven by a

preponderance of the evidence that the alleged

sexual harassment resulted in a_ hostile work

environment. As previously stated, the Court

found that Capitano’s conduct merely consisted of

his accidentally touching Plaintiff's buttocks a few

times when he walked past her in a narrow

walkway. However. since Capitano’s touching of

Plaintiff was accidentally. it was arguably not

sexual in nature or based on Plaintiffs sex.

Instead, Capitano’s touching was an unfortunate

result of a narrow walkway.

However, even Wf Capitano and/or Reker's

touching could be considered sexual in nature or

based on Plaintiffs sex. consideration of their

conduct mn addition to Diaz and Guzman’'s

comments would not change the outcome in this

‘ase. because it is clear to the Court that these

incidents, considered together, were not so severe

or pervasive that they materially altered the

conditions of Plaintiffs employment. In

determining whether a workplace environment is

“hostile” or “abusive”. the Court must look at all

App. 20

the circumstances, including the frequeney of the

discriminatory conduct, its severity. whether it

was physically threatening or humiliating: and

whether it unreasonably interfered with Plaintiffs

work performance |. Only extreme conduct

amounting toa material change in the term and

conditions of Plamntilfs emplovment is actionable’.

The Court finds that Reker, Capitane. Diaz. and

Guziman's conduct did not occur frequently, their

conduct was not severe, their conduct was not

physically threatening or humiliating. and their

vonduct did not reasonably interfere with

Plaintils work performance. As such. when

considering Reker and Capitano’s touching in

wddition to Diaz and Guzman’s comments. the

Court eannot find that) the incidents were

wovthing other than) isolated incidents and

“Ixlenerally speaking. ‘isolated incidents (unless

extremely serious) will not) amount — to

discriminatory changes in the terms and

conditions of employment.” Walton cv. Johnson &

Johnson, SVC., Inc. 847 Fad 1272, 1285 1.12 (11

Cir, 20038) (quoting Fauragher vc. Citv of Boca

Raton, 524 US. 774, TSS (1998). Tithe VIL is no a

“general civility code.” Gupta cv. Florida Bourd of

Regents, 212 Fudd 571. 583 1 Cir.

-*- “ST ee eee eee,

Pattern Jury tostructimn 1.2.2. blesventh Circuit Pattern Jury

Lastructionts (Civil), 2008 cotton

Pattern Jun tnstrachen 12.2. 1b lesenth Circuit Pattern Jury

Histrictions (Civil, 2008 edition

App. 21

2000K quoting Faragher, 524 U.S. at TRA).

Accordingly, the Court finds in favor of Defendant

on Plaintiffs hostile work environment claims.

The Court has now considered the conduct of

Reker, Capitano, Diaz. and Guzman under the

totality of the circumstances, and the Court finds

that Plaintiff has not proven by a preponderance

of the evidence that the alleged = sexual

harassment resulted ino a hostile werk

environment. As such, the Court adopts and

incorporates by reference its prior order entering

judgment in favor of Defendant (Doc. No. 121)

and again directs the Clerk to enter judgment in

favor of the Defendant on all of Plaintiffs claims.

DONE AND ORDERED at Tampa. Florida, this

10° day of January. 2007.

/s/ Susan C, Bucklew

UNITED STATES

DISTRICT JUDGE

App. 22

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR,

Piaintiff-Appellant

No. 06-102-45DD)

(D.C Ne. 8:04-01055

v. SCB-TBMD) (MLD.B

(Filed: Nov 29, 2006)

ASSOCIATED OUTDOOR

’ CLUBS. INC, d/b/a Tampa

Grevhound Track

Defendant-Appellee.

Ce \

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

: ORDER

: BEFORE: DUBINA, CARNES and HULL.

Cireuit Judges.

| PER CUREAM:

The petition for rehearing filed by Appellee.

Associated Outdoor Club, Ine. is DENIED.

De eeeeeeeeeeeeeeeeeeeeeeeeeeeeOEOeOOeeeeeeeeOOaEOEOEEOEOOEOEeeeEeEEeeeee

App. 23

ENTERED FOR THE COURT:

/s/ [legible]

UNITED STATES CIRCUIT JUDGE

App. 24

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR.

Plaintiff-Appellant

No. 06-10245DD

(D.C. No. 8:04-01055

¥. SCB-TBM) (ALD.F.)

(Filed: Oet. 23, 2006)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Grevhound Track

Defendant-Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ORDER

BEFORE: DUBINA, CARNES and HULL.

Cireuit Judges.

PER CURTAM:

’

App. 25

Geraldine Dar Dar. proceeding pro se, filed suit in

the United States District Court of the Middle

District of Florida against her formal emplover.

AOC. alleging hostile work environment and

retaliation claims under Title VII of the Civil

Rights Act of 1964, U.S.C. §§2000e-2(a) and 3:).

She subsequently amended her complaint to add,

among others, claims under the Florida Civil

Rights Act of 1992 (FCRA)® Dar Dar alleged ten

incidents of conduct. described below. that she

contends established a hostile work environment.

She also alleged that AOC retaliated against her

for complaining about this conduct.. AOC moved

for summary judgment on both the hostile work

environment and retaliation claims. The district

court granted summary judgment as to nine of the

incidents of conduct Dar Dar alleged. It denied

summary judgment as to the remaining incidents

of conduct and as to the retaliation claim. The

court then conducted a bench trial. finding in

favor of AOC on Dar Dar’s remaining claims.

Dar Dar appeals both the partial grant of

summary judgment and the adverse judgment

entered after the bench trial. She argues that the

district court erred in approximately thirteen

ways. These arguments are best divided into

three general contentions: 1) that the district

* Florida modeled its civil nights act after Tithe VIL and Florida courts

have subsequently applied Tithe VIE case law to the FORA. /arper v.

Blockbuster Entn't Corp. 139 F.3d 1385, 1387 C11" Cir, 1998).

Consequently. the analysis of Tithe VIP case law in this opinion

applies to Dar Dar’s FORA claims as well.

IE ELS Ee eR he Pe oe Tg eg Oe We eS ea, ee eT a ork. ase? eT de PO ee = TS Pet x i ps

App. 26

court: erred in granting partial = summarv

judgment, 2) that the court erred in’ entering

judgment for AOC on the hostile work |

environment claim, and 3) that the court erred by

entering judgment for AOC on the retaliation

claim. We consider each position in turn.

Dar Dar’s first contention is that the district

court erred by granting summary judgment to

AOC as to most of the alleged ineidents of

harassment. She argues that each incident. is

relevant to) establishing a hostile | work

environment and that the = district court

incorrectly considered the alleged meidents of

sexual harassment in isolation rather than as a

whole. We review de novo the district court's

grant of summarv judgment. Sierra Club cv. Tenn.

Vallev Auth., 480 F.8d 1337, 1345-46 Gith Cir.

U0).

Dar Dar alleged that while working as a pari-

mutuel clerk at AOC. d/b/a Tampa Grevhound

Track. she was subjected to a sexual harassment

because: 1) a male clerk poked her in the side. 2)

her co-workers asked her to accompany them for

drinks after work. 3) clerk Tony Guzman asked

her if she wanted a woman to bring her food like

his gir'friend. clerk Charlvn Brodie. had brought

him food. 4) Guzman bumped her on the shoulder

after she complained to management about him,

a) she saw Brodie and Guzman on the street she

lived on. 6) unknown people let air out of her tires.

App. 27

7) she witnessed a female clerk bring in a

magazine that sold underwear with a “built-in-

butt”. & clerk Robert Diez asked her whether she

had ever seen such an apparatus. 9) Guzman told

her that while he was in the men’s restroom, he

saw an individual's “whale of a dick”. and 10) she

was touched repeatedly on her buttocks by other

clerks, including Joe Capitano. a male, and Jean

Reker. a female.

The district court granted summary judgment

as to all but the last incident of conduct. the

repeated touching of Dar Dar’s buttocks by other

clerks. It found that the first seven incidents

were not based upon Dar Dar'’s sex. and that

incidents eight and nine — Diez asking Dar Dar if

she had ever seen a “built-in-butt™ and Guzman

commenting about secing a “whale of a dick” -

were isolated incidents not sufficiently severe or

pervasive to create oa hostile working

environment. The court concluded fhat Dar Dar's

allegations that people kept touching — her

buttocks. however, created a genuine issue of

material fact for trial. We agree with the district

court that summary judgment was appropriate as

to the first seven incidents. We hold, however.

that incidents eight and nine should not have

been resocved at summary judgment under the

circumstances of this case.

Tithe VEL prohibits “hostile work environment”

sexual harassment. See Walton v. Johnson &

App. 28

Johnson Serv., Ine. 8A7T BSd 1272. 1279 (1 1

Cir. 2005). ‘To establish a prima facie case of

hostile work environment sexual harassment, a

plaintiff must show that: 1) she belongs to a

protected) group. 2) she has been subject to

unwelcome harassment, 3) the harassment: was

hased upon her sex, 4) the harassment “was

sufficiently severe or pervasive to alter the terms

and conditions of employment) and create a

discriminatorily abusive work environment. and

>) the emplover is) responsibilitv. for such an

environment. Id at 1279-80

The Supreme Court has identified four factors

to consider in’ determining whether harassing

conduct is sufficiently severe or pervasive to alter

awn emplovee’s terms or conditions of employment:

1) “the frequency of the discriminatory conduct”.

2) the severity. of the conduct. 3) whether the

conduct “is physically threatening or humiliating.

or ao mere offensive utterance [.] and” 4) whether

the conduct “unreasonably interferes with the

emplovee’s job performance” Harris cv. Forklift

Sys. Ine. 510 ULS. 17, 23. 11S. Ct. 867, 37 (1992).

“Establishing that harassing conduct) was

sufficiently severe oor pervasive to alter an

emplovees terms or conditions of employment

includes a subjective and an objective component.”

Mendoza v. Borden, Inc. 19) Fad 1238, 12-46 11"

oauieanide 5B CA MIS ie les | i as een Sol ave eas

Pete ee RED Lee GREE GRA Te OR OND IR

App. 29

Cir. 1999). Whether the objective component has

heen satisfied “can be determined only by looking

at all the circumstances”. Harris, 510 U.S. at 23.

114 S. Ct. at 871. Courts must “examine the

conduct in context, not as isolated acts. and

determine under the totality of the circumstances

whether the harassing conduct is_ sufficiently

severe or pervasive” to create a hostile working

environment. Mendoza. 195 F.3d at 1246.

Dar Dars first seven instances of alleged

harassment are easy to resolve. The district court

found that they were neither sexual in nature nor

based on Dar Dar'’s sex. We agree. However, the

district court found that they were neither sexual

in nature nor based on Dar Dar'’s sex. However.

the district court dismissed incidents eight and

nine — Diez asking Dar Dar if she had ever seen

“built-in-butt™ and Guzman commenting about

seeing a “whale of a dick” - for a different reason.

It considered each incident in turn and found

them each to be isolated”. This method of

analysis is Inconsistent with Supreme Court and

circuit precedent. Both the Supreme Court and

this circuit have held that the severity and

pervasiveness of “harassing conduct” is judged

“under the totality. of the circumstances’.

Mendoza 198 F.3d at 1246: Oncale v. Sundowner

Offshore Serv. 523. ULS. 7TH. 81. 118 S. Ct. 998.

1002-103 (1998): Harris, 510 U.S. at 23. 114 S.Ct.

at 371. The district court should have examined

Ais SB: Un se aie aS tech ieee at's ua tk

PO Ten eT ON ee Re ee

a iN oh, BB 1 Fl a sy La Sal cd fi Or a ER i

App. 30

incidents eight. nine and ten “in context. not as

isolated aets”. | Mendoza, 1S F.3d at 1A.

Breaking the alleged harassing conduct down act-

by-act cand then) concluding that each act) is

“isolated” is a bit like executing a self-fulfilling

propheey: every act viewed individually appears

isolated.

Applving the totality of the circumstances test.

we hold that incidents eight and nine cannot be

resolved at the summary judgment stage. If Dar

Dars only two allegations were of Diez and

Guazman’s crude comments. we would readily

agree with the district court that these Instances

are not even close to severe enough or pervasive

enough to alter the terms or conditions of Dar

Dars emplovment. But Dar Dar also alleged that

she was touched repeatedly on her buttecks by

other clerks and the district court found that this

legation raised a genuine issue of material faet

for trink, Ht is impossithle for incident ten to

Survive. summary judgment and for incidents

eight and nine to falter. Hf Dar Dar's allegations

that she was touched on her buttocks was. by

itself. sufficient to create a genuine issue for trial

under the totality test. then this allegation plus

two additional allegations of sexual conduct must

necessarily do so as well Consequently. we

AFFIRM the district court partial grant of

By contiast. the district court's grant of summary judgment on the

first seven ineddentis is proper. Because those incidents were not

sexual im nature. thes deo not constitute “harassing conduct” to which

the totaly ef circumstanees test can be apphed. Momdoca. YS F.3d

bade

Ret ey CRE ES ear PS -

elie ao i mE was CTY Ane St oeb

ie PS Oe per ter

a ate ec el

At POPOL TTY

a or. at ‘a,

5 ¥

App. 31

summary judgment as to incidents one through

seven and REVERSE it as to incidents cight and

nine,

However, the district court need not conduct anv

additional evidentiary proceedings on remand if it

determines that even if Dar Dar'’s allegations

about incidents cight and nine are true. that

conduct when added to incident ten still dose not

total sexual harassment. We leave that decision

to the district court.

Dar Dars second contention is that the district

court erred in entering judgment for AOC on her

hostile work environment claim. Because the

district court did not consider evidence of two

relevant instances of conduct at trial we cannot

determine how it would have ruled had it done so.

Therefore. we VACATE the order entering

judgment on Dar Dar's hostile work environment

claim and REMAND for a determination as to

whether consideration of these — additional

Instances alters the court's resolution of that

claim. What we said in the previous paragraph

about the possibility that no new evidentiary

proceedings will be required applies here as well.

it]

at 246 (applying the test of severity and pervasiveness to “harassing

conduct”)

App. 32

Finally, Dar Dar contends that the district court

erred when it entered judgment for AOC on her

retaliation chum. "We review the district court's

findings of fact for cleae error and its analysis of

law de nove’. Doe ve Dekalb County Sch. Dist..

14 Psd Lad. 1445 (11 Cir, 1998) (reviewing

bench trial of claim brought) pursuant to the

Americans with Disabilities Act): Fed. FL Civ. P.

2a) (stating that a district court's findings of fact

ina bench trial “shall not be set aside unless

clearly erroneous’), “Findiags based on the

credibility. of witness demand even greater

deference to the trial court's findings..." Burrell

ce. Bd. of Trs. Of Ga. Military Coll.. 125 F.3d 1390,

mod Clb! Cir. 1997) (quotation omitted).

Furthermore. “[w]hen there is) two) permissible

views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous”. Id

(quotation omitted).

Dar Dar alleged that AOC retaliated against her

by 1) terminating her employment in May 2003

after she complained about the harassment in

November 2002. and 2) creating a supervisor's log

ino January 2003, which contained — three

complaints against her two for being rude to

customers and one for refusing to serve oa

customer.

In order to establish ao claim) of) retaliation.

Plaintiff! must prove by a preponderance of the

evidence that: 1) she engaged in a. statutorily

protected activity, 2) an adverse employment

App. 33

action oceurred, and 3) the adverse action was

related to her protected activities. Coutu v.

Martin County Bd. of County Commis.. 47 F.3d

LOGS, 1074 (11 Cir. 1995). To constitute an

adverse action. an “emplover'’s — challenged

action..... would have [to have] been material to a

reasonable emplovee.” Burlington N. & Santa Fe

Ry... COU WANG SR ee Tae eee

2405, 2410 (2006) (internal quotation omitted).

Material actions are those that “could” well

dissuade a reasonable worker from making or

supporting a charge of discrimination.” Id at 2409.

The district found that Dar Dar’s complaints of

harassment could constitute statutorily protected

activity and that her termination was an adverse

emplovment — action.® However. the court

concluded that she had failed to prove causation

by a preponderance of the evidence. The district

court did not clearly err.

Dar Dar last complained of harassment in

November, 2002. but she was not terminated until

Mav 2003. The length of time between her

complaints and her termination weighs against a

* The district court’ did not expheith address Dar Dar’s claim that the

creation of the supervisor's log was an adverse action. TH was not.

The creation of a complaint log only becomes “material to a

reasonable emplovee™ once the emplover uses that log as the basis for

disciplining or tenminating the employee. Burlington, US. at

~ 126 S.C at 2409. Thus. Dar Dar’s termination was the adverse

action, not the creation of the complaint log.

App. 34

finding: of causation. Clark County Sch. Dist. v.

Breeden, 532 US. 268, 273-74, 121 S.Ct. 1508,

1511 (2001) (relying on cases that held a 3-month

period and a - month period were insufficient to

support causation to hold that the 20-month

period the court was also insufficient). Dar Dar

cheited testimony trom a former manager that one

af her supervisors at the track felt) that) she

complained too much and was looking to fire her.

However, the former manager's — statement

occurred sometime in 2001, approximately a vear-

and-a-half prior to Dar Dar'’s termination. During

the intervening time. Dar Dar received multiple

complaints for behaving rudely to customers and

for refusing to serve a customer. The district

court explicitly determined that AOC's managers

were credible when thev testified that Dar Dar

was terminated based on these complaints. We

grant deference to the credibility. determinations

af the distriet court. Burrell], 125 F.3d at 139-4. and

find that it did not clearly err. We therefore

AFFIRM the judgment in favor of AOC on Dar

Dars retaliation clam.

REMANDED in part. and AFFIRMED in part.

ae iid aN lh le aa a ahd es Bids Ree ta

App. 35

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

GERALDINE DAR DAR,

Plaintiff-Appellant

No. 06-10245D)D)

(D.C.No, 8:04-01055

v. : SCB-TBM)(M.D.F.)

(Filed: Feb. 14. 2006)

ASSOCIATED OUTDOOR

CLUBS, INC. d/b/a Tampa

Grevhound Track

Defendant-Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

ORDER

The motion for an extension of time to file the

appellant brief and record excerpts, up to and

including May 22. 2006 is GRANTED.

/s/ Standlev_F. Birch

UNITED STATES

CIRCUIT JUDGE

App. 36

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTICT OF FLORIDA

GERALDINE DAR DAR,

Plaintilf,

D.C. No.8:04-01055

¥. SCB-TBM

(Filed: Dee. 7. 2005)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Grevhound Track

Defendant.

ORDER

This cause comes before the Court ¢.

Miaintiffs Motion for New Trial. (Doe. No. 125).

The Court conducted a non-jury trial in this case

on November 21-22, 2005 and found in favor of

Defendant on Plaintiffs hostile work environment

and retaliation chaims.

Federal Rule of Civil Procedure 59(a) provides=

that a new trial may be granted in an action tried

Without a jury for any of the reasons for which

rehearings have been granted in suits in equity in

the courts of the United States. Upon

consideration of the areuments raised in her

App. 37

motion. Plaintiffs Motion for New Trial (Doe. No.

125) is DENIED. :

DONE AND ORDERED at Tampa. Flor sa this

7) dav of December. 2005.

/s/ Susan C. Bucklew

UNITED STATES

IMSTRICT JUDGE

Copies:

Counsel of Reeord

Pro Se Plaintiff

bys

App. 3S

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTICT OF FLORIDA

GERALDINE DAR DAR,

Plameilf.

D.C. No. 8:0-4-01055

= « SCB-TBM

(Kiled: Nov 23. 2005)

ASSOCIATED OUTDOOR

CLUBS. ING. d/b/a Tampa

Grevhound Track

Defendant.

ORDER

This matter comes before the Court on a non-

jury trial that was held on November 21-22. 2005.

After considering all of the evidence, the pleading

filed by the parties, the arguments made by

counsel and Plaintif. and the legal authorities

submitted to the Court. the Court makes the

following findings and conclusion of law. To the

extent that any of the findings of facet) might

constitute conclusions of laws, they are adopted as

such. Conversely, to the extent that any

conclusions of law constitute findings of fact. they

are adopted as such,

Phamtill preceded pro se in this matter.

App. 39

Plaintiff began working for Defendant. which

operates and owns the Tampa Dog Track (“the

Track’), in July of 1999 as a roving teller. Six

q months later. she became a mutuel clerk. During

her emplovment at the Track. there was not a

written sexual harassment policy in effect.

Plaintiff contends that she was subjected to a

sexually hostile work environment because people

kept touching her buttocks. The evidence at trial

shows that Plaintiff was only takes issue with two

people that touched her buttocks: Jean Reker and

Joe Capitano.'"” Both Reker and Capitano were

also mutuel clerks.

Plaintiff contends that her co-worker, Reker. a

very petite Asian woman who is approximately

seventy vears old and carries an oxygen tank,

touched her buttocks in March of 2002. Plaintiff

and Reker testified te conflicting versions of

events. and the Court finds Reker's version more

credible. According to Reker. Plaintiff accused

Reker of touching her buttocks. Reker had not

touched Plaintiffs buttocks prior to Plaintiffs

accusation, so Reker then slapped Plaintiffs

The onk other people touched Plaintit!s buttocks were Robert

Dicey und Victor Malozi. Dies accidentally touched Plaintits

buttocks once and apologized, and Plamtiff accepted his apology and

told him not to do it again. Matos: accidentally touched Plainutts

buttocks ane time. but she did not notice that it had happened.

App. 40

buttocks to show her what “touching” was.

Thereafter, Reker apologized to Plaintiff? The one

time that Reker slapped Plaintiffs buttocks was

the only time that) Reker touched ~Phuntitfs

buttocks.

Plaintiff also contends that her co-worker.

Capitano, a fifty-eight vear old man. touched her

buttocks several oceasions. Capitano testified

that be never intentionally touched Plaintiff and

that he only touched her buttocks once or twice

accidentally. | Phamtiff conceded that) Capitano

never slapped, grabbed or squeezed Plaintilfs

buttocks but that he touehed her buttocks when

he would walk past her. The evidence presented

during the trial through the testimony of many

witnesses emploved at the Track was that the

walkways behind the windows where the mutuel

clerks stood were narrow. leaving ttle reom to

walk. Therefore, Capitano’s testimony that he

aceidentally touched) Plaintiffs buttocks while

walking past her is credible.

Plamtilf complained about people touching her

buttocks to her supervisors (Howard Chesser.

Vietor Malozi, Orland “Pete” Berkobein and Ed

Guillew), Plaintiff felt that her supervisors were

not handling her complaints properly, and she

spoke with Larry Hall (the Mutuel Manager) on

November 9, 2002. No one touched Plaintiff

improperly after) she spoke with Hall on

November 4, 2002).

pe eee ee

App. 41

Plaintiff was terminated on May 19, 2008 (Pla.

ex. No. 55). Defendant contends that it fired

Plaintiff for being rude to customers and other

emplovees.!'! The Track’s rules state that mutuel

clerks cannot refuse to wait on any customer that

comes to their window, and if they do, they will be

fired. (Pla. Ex. No. 53, p. 000013). Additionally.

the Track rules state that employees must be

courteous to ali customers regardless of the

situation, and the failure to do so could result in

termination (Pla. Ex. No. 53. p. 000017).

On February 8. 2003. Howard Chesser. one of

Plaintiffs supervisors, reprimanded Plaintiff for

being rude to a customer. (Pla. Ex. No. 50. p.80.

Chesser warned Plaintiff that if there was one

more complaint, he would fire her. (Pla. Ex. No.

%).

Thereafter. on Friday. May 16. 2003 at) 4:30

p.m.. Willie Jackson came to Plaintiffs window to

make a bet on a race that was going to begin at

7:00 or 7:30 that night. Since it was Plaintiffs

luneh hour and the race was not about to begin,

she told Jackson to go to another teller to make

the bet. Jackson walked away and called Plaintiff

aname. Thereafter, two other customers came to

Mar Lorton. Plaintiffs co-worker who worked beside Plaintiff at

the cast walk location. testified that she complained about Plaintiff to

the supervisors more than once. Specifically. she complained about

Plaintiil’s mood swings, which made it hard for Horton to work with

Phaintlt.

App. 42

Plaintiffs window to bet on races. and she took

their bets. When Plaintiff returned from lunch.

her supervisor, Andre Latrielle. spoke with

Plaintit?! about her refusal to wait on -kvekson.

because Jackson had sought out) Latrielle to

complain about Plaintiff to him. (Pla. Ex. No. 50.

p. 1d. May 19. 2003 entry)!

Qn Saturday, May 17. 2003. Chesser told

Piaintiff that there was a customer complaint

logged against her and that she should not come

to work on Monday until he determined what

would be done about the complaint. On Monday.

Mav 19, 2003. Chesser called Plaintiff and told

her she was fired. Ed Gillev. the head supervisor

at the Track. testified that after Plaintiff was fired

on May 19, 2003, another customer, Josh Mannis.

complained about Plaintiff: (Pla. Ex. No. 46).

Ihe Supervisors Log. which wis created m 20038, is a log of

incidents that occurred at the Track. although not all incidents are

logged into the Supervisor Log. Page 14 of the Supers isers Low wis

Migred sometme afler June 1. 2005 when Galley crossed out Josh

Manns’ name trom the May 24. 2003 entry and inserted the name

Walle Jackson. (Phi bX. New 80. po das Pla bw. No. 30a Gilles

testified that he errencously crossed out Josh Mannis” name fran the

Mia 244. 20003 entry. when in fact it was Josh Mannts that complained

Jbout Phintl on that date. the Court notes that Chesser gave

conflicting testimony regarding whether the May 24. 2003) entry

refers to Manns or Jackson. but given Plainutt’s testimony reearding

the events that occurred on Mian 16. 2003 with Willie Rickson. the

Court finds that the Mas 14% 20023 entry is based on Jackson's

complaint and the May 24. 2003 entry ts based on Mannis” complaint,

Additionally. Chesser testified that prior to the creation ef the

Supervisors Log. there were many customer complaints about

Plamttt, Specifically. customers compkiuned that Phuntiff was rude

and that she would wait on whoever she wanted. Man Horton. one

App. 43

Plaintiff contends that she was not fired for

heing rude to customers and emplovees, but

instead, she was fired because she complained

about people touching her buttocks. In support of

her contention, Robert Meissner. a supervisor at

the Track during 2001. testified that after

Plaintiff complained to him about people touching

her buttocks. he notified Larry Hall of Plaintiffs

complaints sometime between September and

December of 2001. Meissner testified that Hall

responded that Plaintiff always complains and

they were looking to fire her.

ll. CONCLUSION OF LAW

The only claims that have survived summary

judgment are 1) Plaintiffs hostile werk

environment claim based on Reker and Capitano

touching her buttocks in violation of Title VII and

the Florida Civil Rights Act ("FCRA®‘).!' After a

non-jury trial. the Court finds that judgment

should be entered in favor of Defendant on both

claims.

of Planulfs co-worker and a mutuel clerk. also testified that Plainuft

Wis fice to the ipping customers and would act differently towards

the non-tipping customers. Additionally. Horton testifted that Phamntlt

would pick and choose who she would wait on.

* Blorida’s Civil Rights Act is pattemed after Title VIL and thus

bederal cuss law dealing with Vithe VIP ts applicable to emplovment

discrimination chums brought under Florida law” Maniceia vo Brown.

171 F.3d 1364. 1364. 1368 210" Cir, 1999) citation omitted).

App. 44

A. Hostile Work Environment

In order to suceeed on her hostile work

environment claim, Plaintiff must prove bv a

preponderance of the evidence that she was

subjected oto oa sexually hostile | working

environment. A work environment is hostile or

abusive beeause of sexual harassment only if 1)

Plaintif was subjected to sexually offensive acts

or statements: 2) such acts or statements were

unwelcome and had not been invited or solicited.

directly or indirectly. by Plaintiffs own acts or

statements: 3) such acts or statements resulted in

a work environment that was permeated with

discriminatory intimidation, ridicule or insult: of

sufficient) severity. or pervasiveness that it

materially altered the conditions of Plaintitfs

emplovment: 4) a reasonable — person. — as

distinguished from someone who is unduly

sensitive, would have found the workplace to be

hostile or abusive; and 5) Plaintitf personally

believed the workplace to be hostile or abusive!.

The Court finds that Plaintiff has not proven by

a preponderance of the evidence that the alleged

sexual harassment resulted ino ai hostile work

environment. The Court) finds that) Reker'’s

ttleged improper touching was not) sexual in

nature, and as such, it cannot support a hostile

work environment ¢laim.

Patton Jurs fastruction 1.2.2. bleventh Cereurt Pattern Jury

Instruction (Crilp, 2000 edition

App. 4)

Furthermore, the Court finds that Plaintiff has

not shown by a preponderance of the evidence

that Capitano’s conduct) was so severe or

pervasive that it materially altered the conditions

of Plaintiffs employment. The Court notes that in

determining whether a workplace environment is

“hostile” or “abusive”, the Court must look at all of

the circumstances, including the frequency of the

discriminatory conduct: its severity: whether it

was physically threatening or humiliating and

whether it unreasonably interfered with Plaintiffs

work performance. '6

Additionally, the Court notes that only extreme

conduct amounting to a material change in the

terms and conditions of Plaintiffs emplovment is

actionable!,

In this case. however, the Court finds that

Capitanos alleged conduct was not physically

threatening. nor did Plaintiff show bya

preponderance of the evidence that it) was

frequent. Instead. the Court finds that Capitano’s

conduct merely consisted of accidentally touching

Plaintiffs buttocks when he walked past her in a

narrow walkway, and his conduct was not of such

an extreme nature as to amount to a material

change in the terms and conditions of Plaintiffs

emplovment.

Pattern Jury Instruction 1.2.2. Eleventh Circuit Pattern Jury

Instruction (Civil), 2000 edition

Neg . we :

Pattern Jury Instruction 1.2.2. eleventh Circuit Pattern Jury

Instruction (Civil), 2000 edition

App. 46

Furthermore. the Court finds that a reasonable

person would not have found the workplace to be

hostile or abusive. While the Court acknowledges

that Plaintiff subjectively perceived the workplace

to be hostile or abusive. the Court: finds that

objectively. the workplace was not) hostile or

abusive.

Accordingly. for the reasons stated above. the

Court finds that Plaintiff has failed to prove by a

preponderance of the evidence that) she was

subjected to a sexually hostile work environment.

As such. judgment will be entered for Defendant

on Plaintiffs hostile work environment claims.

B. Retaliation

In order to establish a claim) of retaliation.

Phaintif must prove by a preponderance of the

evidence: 1) that she engaged in fa] statutorily

protected activity. 2) that an adverse emplovment

occurred, and 3) that the adverse action was

causally related to [her] protected activity” Coulu

t. Martin County Board of County Commissions,

AZ F.8d 1068, 1074 (11 Cir, 1995), The Court

finds that Plaintiff engaged in | statutorily

protected activity. when) she complained about

conduct that) she believed constituted sexual

harassment. with the last complaint occurring on

November 9 2002. Additionally. the Court finds

that Plaintiffs termination on Mav 19. 2003 was

App. 47

an oadverse) emplovment — action. Plaintiff,

however, has failed to prove by a preponderance of

the evidence that her termination was causally

related to her complaints about the alleged sexual

harassment.

For an adverse employment action to be

“casually related” to a statutorily protected

activity. Plaintiff must show that. but for the

protected activity, the adverse cmplovment action

would not have occurred.” Stated another way.

Plaintiff must show that her complaints about the

aleged sexual harassment were a substantial.

motivating cause that made a= difference in

Defendant's decision to fire her." Plaintiff has

not met her burden.

Plaintiffs last complaint of sexual harassment

occurred) more than six months prior to her

termination. The Court finds that the length of

time between her complaints and her termination

weigh against a finding that there is a causal

connection between the two. See Balletti v. Sun-

Sentinel Co.. 9O9 F.Supp. 1539, 1549 (S.D. Fla.

1995)\(stating that the emplovee's§ discharge.

which occurred six months after her complaint of

sexual harassment. was not temporally close

enough to support an inference of a causal

connection).

* Pattern Jury Instruction 1.9.3. Eleventh Circuit Pattern Jury

Instruction (Civil), 2000 edition

Patter Jury Instruction 1.9.3. Eleventh Circuit Pattern Jury

Instruction (Civil), 2000 edition.

App. 48

While Plaintiff contends that) the enusal

connection can be shown by Meissner's testimony

that Hall stated that) Plaintiff complained too

much and they were looking to fire her, the Court

notes that Meissner testified that this discussion

With Hall occurred between September and

December of 2001-approximately a vear-and-a-

half prior to Plaintiffs termination. Furthermore.

the Court notes that Plaintiff was fired right after

Willie Jackson vomplained about) her. which

supports Defendant's contention that it) fired

Plaintiff for being rude to customers. As such. the

Court finds that Defendant's purported reason for

firing Plaintiff-that she was rude to customers

and other emplovees-was credible.

Furthermore. the Court finds that Plaintiff has

failed to prove by a preponderance of the evidence

that her complaints about the alleged sexual

harassment were a substantial motivating cause

that made a difference in| Defendant's decision to

fire her.

Plaintiff attempted to show that other

emplovees were not terminated for being rude to

customers, and ias such. Defendant's purported

reason for firing her must be pretextual. The

Court. however, rejects this argument. because

the other employees were not similarly situated.

Furthermore, the Court) notes that even if it

disagreed with Defendant's decision to fire

App. 49

Plaintiff such cannot support a retaliation claim.

since “[fJederal courts ‘do not sit as ao super-

personnel department that reexamines an entity's

business decisions” Elrod v. Sears. Roebuck &

Co.. 939 F.2d 1366. 1470 (11 Cir. 1991) quoting

Mechnig v. Sears, Roebuck & Co.. 864 F.2d 1359.

1365 (7') Cir, 1988)).

Accordingly. for the reasons stated above, the

Court finds that Plaintiff has failed to prove by a

preponderance of the evidence that Defendant

retaliated against her for complaining about the

alleged sexual harassment. As such. judgment

will be entered for Defendant on Plaintiffs

retaliation claims.

lll. CONCLUSION

Accordingly. it is ORDERED £=AND

ADJUDGED that the Clerk is directed to enter

judgment in favor of Defendant on all of Plaintiffs

claims and to close this case.

DONE AND ORDERED at Tampa. Florida, this

23°! of November, 2005.

/s/ Susan C. Bucklew

UNITED STATES

DISTRICT JUDGE

App. 50

IN THE UNITED STATES DISFRICT COURT

FOR THE MIDDLE DISTICT OF FLORIDA

| GERALDINE DAR DAR,

[ MANIOILE

D. CL No, 8:04-01055

¥ SCB-TBM

(Filed: July 24, 2005)

ASSOCIATED OUTDOOR

CLUBS. INC. d/b/a Tampa

Grevhound Track

Defendant.

ORDER

This cause comes before the Court on two

motions: 1) Defendant's Motion for Summary

Judgement (Doe. No. 63) and 2) Plaintiffs motion

to disregard Defendant's affidavits filed in support

of its motion for summarv judgment (Doc. No.

66). Both motions are opposed. (Doc. No. 75,

76).

|. MOTION TO DISREGARD AFFIDAVITS

Wainti! moves for the Court to disregard the

affidavits filed by Defendant in) support. of its

motion for summary judgment. Plaintilf

+ net ae Ae ee

App. 51

contends that the affidavits should — be

disregarded, because they contradict deposition

testimony. However. most of the inconsistencies

pointed out by Plaintiff are between one person's

affidavit and a= different) person's deposition

testimony. While such inconsistencies may show ~

that there is a genuine Issue to material fact. they

do no show that the person's affidavit should be

disregarded.

The only clear inconsisteney between a person's

affidavit and their own deposition testimony is

Joe Capitano’s statement in his affidavit that he

only bumped into Plaintiff onee. (Doc. No. 63,

Capitano Affidavit. 7). However, in his

deposition, Capitano stated that he bumped into

Plaintiff a couple of times. (Doe. No. 67).

Capitano depo, p. 5-6). As such. the Court will not

consider this portion of his affidavit that conflict

with his deposition testimony."

Il, MOTION FOR SUMMARY JUDGMENT

Defendant moves for summary judgment on

Plaintiff's sexually hostile work environment

“ However. since Capitano’s affidavit: and deposition testimony

conflicts with Plamtlls deposition tesumony that Capitano touched

he butt approximately twice a week. and since the Court must view

the evidence in the light most favorable to Plaintiff when esaluauny

Defendant's motion for summan judgment. this issue is moot,

because the Court will base its decision on Plaintifs version of the

facts since they conflict with Capttino’s version of the facts of this

issuie.

App. 92

and retaliation chum. For the reasons stated

below. the motion is granted in part and denied in

part.

A. Standard of Review

Summary judgment ois appropriate “if the

pleadings. depositions, answers to interrogatories

and admissions on file. together with the

affidavits. if anv. show that the moving party is

entitled to judgment as a matter of law.” Fed. R.

Civ. P.56(e).) The moving party bears the initial

burden of showing the Court. by reference to

materials on file. that there are no genuine issues

of material facet that should be decided at. trial.

See Celotex Corp. vt. Catrett, ATT US. 3817 (1986).

A moving party discharges its burden on a motion

for summary judgment by “showing” or “pointing

out” to the Court that there is an absence of

evidence to support the non-moving party's case.

Id. at 325.

When a moving party has discharged its burden,

the non-moving party must then “go bevond the

pleadings.” and by its own affidavits. or by

“depositions, answers to interrogatories, and

admissions on file. “designate specific facts

showing there is a genuine issue for trial. Id. at

o2-4. In determining whether the moving party

has met its burden of establishing that there is no

genuine issue ats toany material fact and that

App. 53

it is entitled to judgment as a matter of law. the

Court must draw inferences from the evidence in

the light most favorable to the non-movant and

resolve all reasonable doubts in that party's favor.

See Samples on behalf of Samples v. City of

Atlanta, 846 F.2d 1328, 1330 (11'> Cir, 1988).

B. Background

Plaintiff was hired by Defendant. Associated

Qutdoor Club. Inc. doing business as Tampa

Grevhound Track, in July of 1999. In January of

200. Plaintiff became a pari-mutuel clerk, and she

was responsible for punching tickets and assisting

customers. Plaintiff contends that Defendant

subjected her to a. sexually hostile work

environment and retaliated against ber for

complaining about the harassment.=! While

employed by Defendant. Plaintiff identifies

numerous incidents that she characterizes as

discriminatory.

Plaintiff alleges that in 2000. David Grant

would walk by and poke her in the side with his

finger. (Pla. depo**, p. 30). Grant poked Plaintiff

five to ten times during a six months period..(Pla.

depo, p. 78-79). Plaintiff complained to two

‘ Defendant did not have a written sexual harassment polices in place

during Pkanulls employment. (Doc. No. 63, Hater Affidavit, 6).

~ Plaintiffs deposition transcript is filed as an evhibit to Doe. No. 63.

ee ee ee Bee Gy iF Gnas | PF Ry eh “3 eeend

RE it OS PDR Pop h ME SINS eT POR DoE TE oe Re

Bs as Ss ST i ela oe a Ca el a hl ee

App. 3-4

supe@rvisors. Richard Monjovi and Ed Gilley. about

Grant poking her. (Pla. depo. p. 30-31). 0 After

Plaintiff! complained to Callev. Grant stopped

poking her. (Pla. depo. p. 76).

Additionally. Plaintiff alleges that during the

simuleast season of 2001, several co-workers

would pass by her and touch her butt. (Pla. depo.

p. 32) Initially. Plaintiff thought that) they

touched her butt because she was in their wavy.

(Pla. depo. p. 30). However, since co-workers kept

touching her butt. vet a significantly larger person

(Howard Chesser) was able to pass by her without

touching her butt. Plaintiff beheves that) people

were touching her butt on purpose. (Pla. depo. p.

32). Plaintiff asked Chesser how he could pass

behind her without touching her butt. and he put

his head down and laughed. confirming Plaintiffs

suspicious that people were touching her butt on

purpose. (Pla. depo. p. 32). Plaintiff identified two

co-workers by name that) touched) her butt,

Joanne Rekker and doe Capitano.

Plaintiff alleges that Rekker touched her butt

one day in 2002. (Pla. depo. p. 65-67). Plaintiff

reported the incident) to a supervisor, Pete

Berkobein. (Pla. depo. p. 67-68). Additionally.

Plaintiff alleges that Capitano began touching her

butt while she was working at her station. (Pla.

depo. p. 34. 90. 93. 100). Plaintiff told Capitano

not to touch her. and she complained

* The simuleast season runs trom January to June cach vear.

App. 55

wbout this to a supervisor, Howard Chesser. (Pla.

depo, p. 40-41). However Capitano continued to

touch her butt. and Plaintiff estimates that he

touched her butt twice a week. (Pla. depo. p. 54.

93). Plaintiff repeatedly reported to management

(including Ed Gilley. Vie Malozi. and Howard

Chesser) that Capitano kept touching her butt.

(Pla. depo. p. 94). During the live season=! of

2002. Plaintiff put a chair behind her while she

was working at her station. and this stopped

Capitano from touching her butt. (Pla. depo, p. 96-

97).

Plaintif! also alleges that) Patty Bruner.

Plaintiff's co-worker, brought a magazine to work

in November, 2002, (Pla. depo, p. 54.57). Plaintiff

did not look at the magazine, but she believes that

the magazine sold ladies’ underwear with built-in-

padding to enhance one's” butt) because she

overheard her co-workers talking about it. (Pla.

depo, p. 57, ba. 64). Plaintiff never told

management about the magazine or that she was

offended by it. (Pla. depo. p. 60).

Plaintiff also alleges that during the live season

of 2000, her co-workers’ would invite her out to

* The live season runs from July to December cach sear.

as unclear as to who exactly invited her out. Plaintiff merely

refers to these co-workers as “thes” in her deposition.

App. 96

vo drinking after work. (Pla. depo. p. 81). Plaintil

was not singled out. other people were invited

dso. (Pla. depo. p. 82-83).

Plaintitf also alleges that) ‘Tony Guzman.

Plaintiff's co-worker who sat next to her, sexually

harassed her in January of 2002 by telling her

that he sawoa oman in the men’s restroom unzip

his pants and “a whale of a dick fell in the water’.

(Pla. depo. p. 106). Plaintiff thought that Guzman

told her the story because she is a woman, so she

usked him to tell the storv to a male co-worker.

Marlow Spivey. (Pla. depo. po 108). | Plaintiff

reported the incident to ld Gilley. (Pla. depo. p.

1)$)).

Additionally, Plaintiff alleges that) Guzman

harassed her after Guzman’s girlfriend. Charlyn

Brodie, brought him a cup of soup and he said to

Plaintiff, “wouldn't vou like to have a woman do

the things for vou that Charlvn does for me?” (Pla.

depo. p. 111). Plaintiff reported this incident to

her supervisors. (Pla. depo, p. 111). Thereafter,

Plaintiff alleges that Guzman brushed against her

shoulder when he walked past her. and then

Plaintiff and Guzman started screaming at cach

other in front of customers. (Pla. depo. p. 116.

124). A police officer came up and asked what

was gong on. (Pla. depo. p. 124). Plaintiff and the

police officer went into a supervisors office. and

Plaintiff explained what had happened. (Pla.

depo. p. 125). Howard Chesser was in the office

while Plaintiff spoke with the police officer. (Pla.

App. 57

depo, p. 126). A few davs later, Guzman was

moved away from Plaintiffs station and his

virlfriend. Charlvn Brodie (Plaintiffs co-worker).

was moved into Guzman’s place. (Pla. depo. p.

128, 1:30).

Plaintiff alleges that about two weeks = after

Brodie moved next to her. Brodie came back from

lunch and punched Plaintiff on the shoulder when

she (Brodie) took her jacket off. (Pla. depo, p. 132-

333). Plaintiff contends that her shoulder was

bruised for two weeks. (Pla. depo. p. 138).

Plaintiff reported the incident to Ed Gilley, and he

determined that the incident was an accident.

(Pla. depo. p. 133-34).

Plaintiff also alleges that during simuleast 2002.

Brodie would park her car headlight to headlight

with Plaintiffs car. (Pla. depo, p. 140.) 145).

Plaintiff believes that Brodie did this in an effort

to intimidate Plaintiff for complaining about

Brodie’s boyfriend. Guzman. (Pla. depo. p. 14:3).

Additionally, Plaintiff felt intimidated by Brodic

and Guzman being on the street where Plaintiff

lives.“

Plaintiff also alleges that during simuleast 2002,

someone kept letting the air out of different tires

of her car. (Pla. depo. p. 140. 151). However.

p. 194)

App. 48

Plamntitf® does not know who was doing it. (Pla.

depo. p. LAD. Additionally, Plaintiff alleges that

on November 9, 2002. she punched a ticket for a

co-worker named Bobby Diaz. (Pha. depo. p. 171).

When Diaz walked away, Guzman and Evie Perez

stopped Diaz and spoke to him in Spanish." (Pla.

depo. p. 171). Thereafter, Diaz came back to

Plaintiff and asked her if she wore “panties with

the butt built into them™ (Pla. depe. p. 172).

Plaintiff saw Guzman and Perez giggling while

this was occurring. (Pla. depo. p.172). Plaintiff

got angry with Diaz and told him that it was none

of his business. (Pla. depo. p. 172-73). As the

incident with Diaz occurred. Howard Chesser

showed up. (Pla. depo. p.173). Later that same

dav. Plainaiff spoke with Larry Hall. a supervisor.

wbhout all of the incidents of alleged harassment.

(Pla. depo, p.196-98), This was Plaintiffs last

complaint: of sexual harassment. (Pla. depo. p.

2.1%).

Plaintiff contends that her supervisors and co-

workers retaliated against her. Plaintiff contends

that Brodie retaliated against her when Brodie

punched Plaintiff in the shoulder after Plaintiff

complained about) Brodie’s bevfriend. Guzman.

(Pla. depo. p. 227).

Additionally. Plaintiff contends that) Howard

Chesser retahated against her for complaining

thout the alleged sexual harassment by logging

Plhamtt) does net speak Spanish and does not Know what Guzman

and Peres sand to Diaz. (Pla. depo. p. 172)

App. 59

three complaints against her. Chesser logged a

complaint against Plaintiff by an unknown

customer on February 10. 2003.25 (Pla. depo. p.

212-13). The entry on February 10, 2003 states:

“|Plaintiff] reprimanded for being rude to patron.

She was warned for last time. One more

complaint].] out of here.” (Doc. No. 63, Ex.3)

Chesser logged another ‘complaint against

Plaintiff on May 19, 2003. (Pla. depo. p. 215).

The entry on May 19. 20038) states:"‘[Plaintiff]

terminated: refusing to wait on customer’. (Doc.

63. Ex. 3). It appears that the incident referred to

in the May 19, 2003 entry was an incident that

occurred on May 16, 2003. On May 16. 2003, a

customer. Larry Jackson. came to Plaintiffs

station to make a bet: however, Plaintiff was

leaving for lunch hour at that time. (Pla. depo, p.

220). Plaintiff told Jackson to go to the tellers

inside since she was leaving for her lunch hour,

and Jackson called her a “lazy mother fueker”.

(Pla. depo, p. 220).

Chesser logged .another) customer complaint

against Plaintiff on May 24. 2003. (Pla. depo. p.

222). The May 24, 2008 entry states: “Customer

[Josh Mannis|] informs me that [Plaintiff]? was a

very rude individual an|[d] very unpleasant”.

(Doc. No. 63, Ex. 3). Chesser contends that

when Mannis found out that Plaintiff was

“In her deposition, Plaintiff states that the complaint was logued on

February S, 2002. but the log book indicated that tt was logged on

Monday. February 10, 2003. (Doe. No. 63. bx. 3)

App. 60

terminated, he gave the complaint: about) her

heing rude. (Doc. No. 67, Chesser depo, p. 21).

Maintilf also contends that Chesser, Ed Gilley.

and Larry Hall retaliated against her for

complaining about) the sexual. harassment by

terminating her rather than handling her sexual

harassment complaints. (Pla. depo. p. 224-25).

Plaintiff was terminated on May 19, 2003). (Pla.

depo, p. 225), Ino Plaintiffs Personnel Action

Form. Larry Hall) states that) Plaintiff was

terminated because she was rude to customers

and other emplovees and the she had been warned

repeatedly during the past vear. (Doc. No. 63,

Ex. 4). Defendant has rules regarding emplovee

behavior, which include the following:

COURTESY - be courteous to all customers

regarding the situation. This is absolutely

mandatory. Emplovees will. at all times, act

ino ao friendly and professional manner.

Should any questions or misunderstandings

Hrise over a situation vou cannot resolve, do

not) create oan argument oreause oa

disturbance. Call your supervisor or send

fora Security Officer, but do not physically

touch, hold or detain the customer.

(Doc. No. 63. Ex. 5). Additionally, Defendant's

rules that provide that emplovees mav not

App. 61

refuse to wait on any customer that comes to their

window and that if thev do. thev will) be

terminated. (Doc. No. 63, Ex. 6).

Plaintiff concedes that she has — been

reprimanded at work for arguing or velling at co-

workers. (Pla. depo. p. 230). Plaintiff also

concedes that she was told that if she had one

more outburst, she would be terminated." (Pla.

depo. p. 246). However. Plaintiff contends that

these outburst/arguments only occurred whenever

people touched her. (Pla. depo, p. 230-31, 72-7-4).

C. Analysis

Plaintiff alleges that Defendant subjected her to

a sexually hostile) work environment = and

retaliated against her for complaining about the

harassment in violation of Title VII and the

Florida Civil Rights Act. Defendant argues that it

is entitled to summary judgment on Plaintiffs

hostile work environment and retaliation claims.

Accordingly, the Court will address each claim."

1. Sexually Hostile Work Environment

This unelear as to when she was told this.

“ “Florida's Civil Rights Act is pattemed after Title VIL. and thus

federal case law dealing with Tithe VIE is applicable to employ ment

discrumination chums brought under Florida law.” Maniccia v.

Brown, 171 F.3d 1364, 1368 1.2 C11" Cir. 1999) (citation omitted).

App. 62

Plamtill alleges that Defendant subjected her to

wo sexually hostile work environment due te the

following incidents: 1) Grant poking her in her

side, 2) people touching ber butt. 3) Bruner

bringing a magazine to work that sold ladies’

underwear with built-in-padding. +) co-workers

Inviting her to go out drinking after work. 5)

Guzman telling her the storv about aoomian’s

genitalia that he saw in the restroom, 6) Guzman

asking her if she wanted a woman to do things for

her like Brodie did for him (after Brodie brought

Guzman a cup of soup). 7) Guzman brushing her

shoulder as he waked past her, and 8) Diaz asking

her if she wore underwear with the butt built into

them. In order to prove a sexually hostile work

environment. “a plaintiff must show 1) that she

helongs toa protected group: 2) that she has been

subjected to unweleome sexual harassment: 3)

that the harassment was based on her sex: 4) that

the harassment was sufficiently severe or

pervasive to alter the terms and conditions of

employment and create a discriminatorily abusive

working environment: and 5) that a basis for

Additionally. Phantill states in her deposition that the following

iividents alse created a hostile work environment, but these incidents

were not ahdressed by Defendant: 1) Brodie and Ciuzman being on

Phamttls street. 2) unknown people letting air out of Plhamtths tie.

Ihe Court notes, however, that these meidents are clearh not

wwhonable. Brodie and Guzman bemg on Plamtiils street is not

sesual in nature. Dikewise. poeple letting air out of Phintil®s tires ts

not sexual in nature. and the acts could have been done by anyone,

neluding customers of the Trach.

App. 63

holding the employer liable exists.” Hulsey cv.

Pride Restaurants, ULC. 367 F.8d 1238, 1244 (11

Cir., 2004) (citations omitted). Defendant argues

that 1) Plaintiff cannot show that the harassment

was sexual in nature or based on her sex, and 2)

the alleged harassment was not sufficiently severe

or pervasive,

SS 2

Sex or Sexual in Nature

Defendant contends that Plaintiff cannot show

that the harassment was sexual in nature or

based on her sex. To the extent that Plaintiff

argues that she was subject to a sexually hostile

work environment due to the following incidents,

the Court agrees with Defendant that these

incidents were not based on Plaintiffs sex. nor

were they sexual in nature: 1) Grant poking her in

her side, 2) co-workers inviting her to go out

drinking after work", 3)Bruner bringing a

magazine to work that sold ladies’ underwear

with built-in padding, 4) Guzman asking her if

she wanted a woman to do things for her like

Brodiv did for him (after brought Guzman a cup of

soup), and 5) Guzman brushing her shoulder once

as he walked past her.

b. Severe and Pervasive

Inviting someone to be part of a group going out to a bar is not

evidence of sexual harassment. See Gupia vo Florida Board of

Regents, 12 F.3d $71, 384.001" Cir, 2000)

App. 6-4

Defendant also contends that the alleged

harassment was not sufficiently severe or

pervasive. ‘The “severe or pervasive” clement has

both a subjective and objective component “t]he

employee must ‘subjectively perceive’ the

harassment as sufficiently severe and pervasive to

alter the terms and conditions of employment, and

this subjective perception must be objectively

reasonable” Mendoza cv. Borden, Ine. 195) F.3d

as, WAG C11 Cir, 1999) (citation omitted).

While in the instant ease. Plaintiff subjectively

perceived othe alleged harassment to — be

sufficiently severe and pervasive. the Court must

determine whether her pereeption was objectively

reasonable, With regards to the objective

component. courts consider four factors” 1)

frequeney of the conduct: 2) the severity of the

conduct: 3) whether the conduct is physically

threatening or humiliating or a mere offensive

utterance; and 4) whether the — conduct

unreasonable interferes with the employee's job

performance’. Id. (citation omitted). “[Clourts

should examine the conduct. in context. not as

isolited acts. and determine under the totality of

the circumstances whether the harassing conduct

is sulficiently severe or pervasive to alter the

terms or conditions of the plaintiffs employment

and create a hostile working environment.” Id.

(citation omitted). With regards to the remaining

incidents that Plaintiff complains of, namely 1)

App. 65

people touching her butt. 2) Guzman telling her

the storv about a mans genitafia that fe saw tn

the restroom, and 3) Diaz asking her if she wore

underwear with the butt built into them, the

Court finds that Guzman and Diaz's comments

are not actionable. Guzman and Diaz's comments

were isolated incidents and “|glenerally speaking.

‘isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the

terms and conditions of emplovment™ Walton ct.

Johnson & Johnson Sves, Inc. 3847 F.3d 1272.

1285 n.2 (11'" Cir, 2008) (quoting Faragher v. City

of Boca Raton, 524 US. 7745. TER (1988).

Furthermore, Tithe VIL is no a “general civility

code.” Gupta, 212 F.3d at 583 (quoting Faragher,

524 U.S. at 783).

However, with regards to Plaintiffs allegations

that people kept touching her butt. the Court

finds that such conduct, if true. is sufficientiv

severe and pervasive, since Plaintiff that Capitano

touched her butt approximately twice a week for

several months.*! The Court finds that given the

i o's a ‘ we

Additionally. arguably. Guzman did not tell Plaintiff the story

bovine she is a woman, since he repeated i to Spivey. a man.

' Phe Court rejects Defendant's argument that it should be granted

suman judement on Plaintiffs hostile work environment claims

based on people touching Plaintiffs butt. because Phunulls

allegations are conclusory. and as such. the allezations cannot create

Wd genuine issue of material fact. Phaintif? identified at least two of the

people that touched her, when they touched her butt. and what she did

IN Fesponse,

App. 66

frequeney of the conduct and the fact that it was

unwanted physical conduct. there is a genuine

issue of material fact as to whether Plaintiff was

subjected to a sexually hostile work environment

due to people touching her butt.

Additionally. the Court notes that Defendant

araues that the area where Plaintiff worked was

narrow and that it was not uncommon for people

to accidentally bump inte each other. While it

may be determined at trial that people did in fact

accidently bump into Plaintiffs butt. the Court

must construe the facts in the light most favorable

to) Plaintiff when considering a= motion — for

summary judgment, and as such. the Court finds

that there is a genuine issue of material fact as to

whether people intentionally touched) Plaintitfs

butt.

ce. Conclusion

Based on the above. the Court grants in part

and demes ino part) Defendant's motion for

summary judgment regarding Plaintiffs hostile

work environment claim. The Court denies the

motion only to the extent that Plaintiff contends

that she was subjected to a sexually hostile work

environment due to people touching her butt.

However, the Court grants summuarv judgment in

favor of Defendant regarding all of the other

alleged incidents that Plaintiff contends created a

sexually hostile work environment.

App. 67

2. Retaliation

Plaintiff also argues that she was retaliated

against by co-workers and supervisors due to her

complaining about the alleged harassment. In

order to establish a prima facie case of retaliation.

a plaintiff must show “1) that she engaged in |a]

statutorily protected activity. 2) that an adverse

employment action occurred. and 3) that) the

adverse action was causally related to the

plaintiffs protected activity’. Contu vc. Martin

County Board of County Commisstoners, 47 F.3d

1068, 1074 (11 Cir, 1995). Defendant contends

that Plaintiff cannot show that she satisfies any of

these elements. The Court disagrees.

The Court finds that Plaintiffs complaints about

the butt touching, Guzman’s story about a man’s

genitalia, and Diaz's comments about whether

Plaintiff wore padded underwear were statutorily

protected activity. the last of which occurred on

November 9 2002. when Plaintiff spoke with

Larry Hall. Furthermore. Plaintiff was

terminated on May 19. 2003. which is an adverse

employment action. Finally. the Court finds that

based on Robert Meissner'’s deposition testimony.

there is a genuine issue of material fact as to

whether Plaintiffs termination and — her

complaints of harassment were related.

App. GS

Meissner) was a. supervisor at) the Track.

(Meissner depes“p. 3). Plaintiff complained to

him that people were touching her — butt.

(Mivissner depo, p. 4-6). Meissner reported this to

Larry Hall. who saa not te worry about it because

Mafendant was looking to fire Plaintiff, Meissner

states: “They did not give me a reason. Thev said

she complains a lot and they were looking to fire

her...” (Meissner depo, p. 17).

The Court notes that Defendant asserts a

legitimate. non-discriminatory — reason for

terminating Plaintiff- failing to comply with

customer courtesy. However, Plaintiff has

brought forth evidence (in the form of Meissner's

deposition testimony) that creates a genuine issue

of material faet as to whether Defendant's

purported reason is pretextual’, Accordingly. the

Court denies Defendant's motion for summary

judgment on Phuntilfs retaliation claim based on

her termination.

However. to the extent that Plaintiff argues that

Brodie retahated against her by punching her in

“Additionally. the Court noted that PkuntilY argues that she was

terminated due te her outbursts te co-workers. which occurred

Whenever thes would touch her im a manner that she deemed

inappropriate. (Dec. Ne. 76. p. 13). Furthermore. it appears that

Phantlt max be guestonme the legdimacy of the complaints that

occurred at the Track were logyed. (Doe. No. 76. p 15-16. 20)

App. 69

the shoulder after Plaintiff complained about her

bovfriend, Guzman. the Court finds that Brodie’s

conduct cannot give rise to a retaliation claim.

Brodie was Plaintiffs co-worker. and Brodie did

not cause Plaintiff to suffer an adverse

employment action by punching her in the

shoulder. Defendant cites other incidents by co-

workers that Plaintiff may be suggesting

constitutes retaliation. However, Plaintiffs co-

worker could not cause Plaintiff to suffer an

adverse employment action, and as such. the

Court grants Defendant summary judgment on

Plaintiffs retaliation claims to the extent. that

they are based on conduct by the co-workers.

Ill, CONCLUSION .

Accordingly. it is ORDERED AND

ADJUDGED that: 1) Defendant's Motion for

Summary Judgment (Doc. No. 63) is GRANTED

IN PART AND DENIED IN PART. The motion

is denied to the extent that Phantiffs hostile work

environment claims are based on people touching

her butt and to the extent that Plaintiffs

retaliation chiims are based on her termination:

otherwise, the motion is granted. 2) Plaintiffs

motion to disregard Defendant's affidavits filed in

support of Its motion for summary judgment

(Doc. No. 66) is GRANTED IN PART AND

DENIED IN PART.

4 App. 70

DONE AND ORDERED at Tampa. Florida. this

: 25°) day of July. 2008,

e if Susan C. Bucklew

UNITED STATES

DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.