# Petition for Writ of Certiorari — Dar Dar v. Associated Outdoor Outdoor Outdoor Clubs, Inc. (No. 07-1192) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1267%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text winats avid Supreme Court of the Anited States GERALDINE DAR DAR Petitioner. a 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. ii 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). i 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 hy 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 l. IN Vl 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 1X 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 x 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 Ml 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 Xi 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. © Peete Oe FIRM so ciciercsharcartavsdcousbcussedets Florida Civil Rights Act of 1991.....................00083 XV 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 ie Py ea, ee ee te Eee es ae et S 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 4) 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). 10 E ij 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. 1] 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 13 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 It 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 17 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 IS 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. 19 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 21 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]. 24 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). é “ ‘ : hd ~ : A 25 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): 26 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: 29 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 3 ; t a y ¥ 24 ide hs AE AI e mee ie et 7) 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 4] “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 3. “aN Re =. 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. : 39 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 4] 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 AL 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. 4 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 ie { iH t { }| | : i ‘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 4 4 A b r br ‘ : : a i q 4 iy he : y | E 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: 3 =. ’ fr i a 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 J * 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. 1a 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. S > 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 ah 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 t $i . 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. REVERSED. in part. VACATED © and 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. ia /s/ Susan C. Bucklew UNITED STATES IMSTRICT JUDGE Copies: Counsel of Reeord Pro Se Plaintiff bys 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. © Plhainuff hves around the comer from the track. (Pla. depo. 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) E EE FE fe b> j i J 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. T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1267%3A1. Public record. Not legal advice.