Erin Tonkyro v. Secretary, Department of Veterans Affairs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 24, 2021
• Docket: 19-10014
• Status: Published

Opinion

USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 1 of 45

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10014 ________________________

D.C. Docket No. 8:16-cv-02419-CEH-AEP

ERIN TONKYRO, DANA STRAUSER, KARA MITCHELL-DAVIS, YENNY HERNANDEZ,

Plaintiffs – Appellants,

versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

Defendant – Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 24, 2021)

Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge: USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 2 of 45

This appeal arises from a Title VII action filed by four ultrasound

technologists at the James A. Haley VA Healthcare System (“Tampa VA”) against

the Secretary of the Department of Veterans Affairs (“the Secretary”). All

Plaintiffs allege that their supervisors and coworkers retaliated against them and

subjected them to a hostile work environment because they engaged in protected

Equal Employment Opportunity Commission (“EEOC”) activity. One Plaintiff

also alleges that she was subjected to a hostile work environment based on her sex.

Plaintiffs appeal from the District Court’s grant of summary judgment in favor of

the Secretary. We partially affirm and partially vacate the District Court’s decision

with instructions on remand.

I.

In 2012, Plaintiffs Erin Tonkyro, Kara Davis, and Dana Strauser filed EEOC

complaints alleging that they were sexually harassed by supervisors and

radiologists at the Tampa VA. Specifically, Plaintiffs alleged that they were

harassed by John Bennett, Chief Radiology Technologist and Plaintiffs’ second

line supervisor1; Dr. Joseph Parise, Assistant Chief of Radiology; and that Jeri

Graham, Plaintiffs’ former direct supervisor and current second-line supervisor,

aided and abetted the harassment. An Administrative Investigation Board (AIB)

1 In 2013, Bennett became the Administrative Officer of Radiology and ceased supervising Plaintiffs. See Appendix. 2 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 3 of 45

was formed to investigate the complaints, and Plaintiff Yenny Hernandez testified

in support of the other three Plaintiffs. The complaints were eventually settled

with the VA in September 2013.

Under the terms of the Settlement Agreements, Plaintiffs waived all

potential actions “which were raised or could have been raised” in the 2012 EEOC

complaints, as well as “future causes of action against the [VA] based on such

actions in existence” at the time of the settlements. Among other things, the

Settlement Agreements required the VA to “conduct a fact finding based on the

[sexual harassment] allegations,” “issue a letter of instruction” to Bennett, Parise,

and Graham “to refrain from making any allegedly defamatory or gender based

stereotype derogatory remarks in the workplace regarding [Plaintiffs],” to expunge

certain records from Plaintiffs’ personnel files,2 and to pay Plaintiffs a sum of

damages. The Settlement Agreements also stated: “All promises, conduct and

statements made in the course of the settlement session are confidential and will

not be disclosed voluntarily to anyone except to those required in order to approve

the terms of this Agreement or to carry out its terms, to the extent permitted by

law.”

2 Paragraph 3.b of the Settlement Agreements required the VA “[t]o expunge from the Complainant’s Official Personnel File the written counseling dated February 15, 2013.” The “written counseling” referred to an incident in which Eubanks gave Davis and Strauser written warnings for being absent from the ultrasound duty station without permission.

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In July 2014, Tonkyro, Davis, and Strauser filed formal EEOC complaints

alleging retaliation for their previous EEOC complaints and 2013 settlements.

Hernandez filed a formal EEOC complaint in September 2016 alleging sexual

harassment and retaliation for her participation in the 2012 EEOC proceedings.

On August 23, 2016, Plaintiffs filed the present action against the Secretary.

Plaintiffs alleged that their supervisors and coworkers retaliated against them

because of their EEOC complaints and settlements, and created a hostile work

environment in violation of 42 U.S.C. § 2000e et seq.. Hernandez also alleged that

she was subjected to a hostile work environment based on her sex. We summarize

these allegations below, first discussing the allegations common to all Plaintiffs,

then the allegations relating to each particular Plaintiff.

A.

All Plaintiffs complain that they were denied opportunities for advancement,

that management intentionally understaffed and mismanaged the radiology

department, that private information relating to Plaintiffs’ EEOC activity was

published on a hard drive accessible to VA employees, and that VA employees

spread rumors and made disparaging comments about Plaintiffs and their EEOC

activity. The details of these allegations are as follows.

Regarding opportunities for advancement, Plaintiffs complain of a pattern

where management advertised open positions and occasionally even encouraged

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Plaintiffs to apply for them, only to cancel the positions, leave them unfilled, or

attach requirements to the positions that Plaintiffs did not meet. Plaintiffs point to

five separate occasions.

In September 2013, Dr. Stephen Stenzler, Chief of Radiology Services and

Plaintiffs’ third-line supervisor, told Tonkyro that she should apply for an

MRI/Ultrasound Supervisor opening. However, Stenzler later told Tonkyro that

she would not be selected for the position because Medical Center Director

Kathleen Fogarty wanted to fill the position with someone from outside the VA.

On January 9, 2014, the Tampa VA again posted an opening for an

MRI/Ultrasound Supervisor position. However, the VA limited applications only

to those with a particular professional license that Plaintiffs did not possess.

On January 26, 2015, Scott Petrillo, Plaintiffs’ first-line supervisor,

announced that there would be an opening for an Ultrasound Supervisor position.

The VA never actually posted the position, however, deciding instead to allocate

funds for a different position.

In March 2016, Petrillo announced an opening for a Lead Ultrasound

Technician in the newly opened Primary Care Annex (“PCA”). Tonkyro wanted

the position, but it, too, was cancelled because management decided to create a

lead mammography position instead.

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Finally, in April 2016, Davis applied for an Ultrasound Supervisor position.

However, Davis’s application was put on hold indefinitely when Angela Geraci, an

ultrasound technologist, filed a bullying complaint against her. Plaintiffs allege

that the bullying complaint and AIB investigation that followed were part of a

conspiracy between Geraci and management to prevent Davis from obtaining the

Ultrasound Supervisor position.

Next, Plaintiffs allege that management intentionally understaffed and

mismanaged the radiology department. Plaintiffs point to two separate incidents.

First, Plaintiffs point to the hiring of Geraci. Stenzler hired Geraci on August 24,

2015, notwithstanding that she had no prior ultrasound experience and that a hiring

panel (of which Davis was a member) had deemed her unqualified. Plaintiffs

allege that Geraci’s incompetence increased their workload, that management

treated Geraci more favorably than they treated Plaintiffs, and that Geraci spread

rumors about Plaintiffs’ EEOC settlements and otherwise bullied Plaintiffs.

Second, Plaintiffs allege that management has allowed black mold to infest the

ultrasound department since February 2015, even though Plaintiffs have

complained several times.

Plaintiffs allege that their private information was made public as an act of

retaliation for their EEOC activity. On February 13, 2014, Plaintiffs learned that

private employee information was being stored in a folder on a computer hard

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drive (the “S-Drive”) that was accessible to all radiology department employees.

The private information included various documents relating to MRI, CT, and

ultrasound employees generally. The information relating to Plaintiffs in particular

included: documents pertaining to Plaintiffs’ EEOC complaints; emails in

connection with an incident where Davis claimed she had no time to attend a

mandatory life-support training; emails in connection with an incident where Davis

told a patient that his ultrasound scan revealed “something” that was “not good”;

and emails, notes, memoranda, and written warnings in connection with an

incident where Davis and Strauser left the ultrasound duty station without

permission.3 The written warnings in connection with the latter incident were

supposed to have been expunged from Davis and Strauser’s personnel records

under the terms of their 2013 Settlement Agreements. See supra n.2.

An employee accessing the S-Drive between November 15th, 2013, when

the folder was uploaded, and February 19, 2014, roughly when it was removed,

could learn that Plaintiffs had filed retaliation complaints, as well as the factual

bases for those complaints. The employee could not learn, though, that the VA had

settled Plaintiffs’ 2012 sexual harassment complaints, much less the terms of

Plaintiffs’ Settlement Agreements.

3 The only document on the S-Drive pertaining to Hernandez was an email from Hernandez to hospital staff explaining that she had sent a patient the wrong ultrasound images.

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Finally, Plaintiffs allege that VA employees spread rumors and made

disparaging comments about Plaintiffs and their EEOC activity. According to

Plaintiffs, these rumors and comments ruined their professional reputations and

created the general impression that Plaintiffs were troublemakers who caused

problems for the radiology department.

B.

In addition to the allegations common to all Plaintiffs, Tonkyro complains of

the following. On August 23, 2013, while Tonkyro was helping a patient, Bennett

walked slowly past her and glared. On March 23, 2014, Parise entered Tonkyro’s

work area and glared at her. On September 15, 2014, after Tonkyro transferred

from the main Tampa VA hospital to the PCA, Bennett intentionally deprived her

of the equipment she needed to perform her job.

C.

In addition to the allegations common to all Plaintiffs, Strauser complains of

the following. In February 2014, Graham interrupted Strauser during training and

questioned her about a patient who was unhappy with the state of the hospital

bathrooms. On March 18, 2014, Parise glared at Strauser and shook his head. In

May 2016, Stenzler hired Strauser’s ex-husband, Dr. Adam Green, to be a

radiologist at the Tampa VA even though Strauser said it would be difficult for her

to work with him.

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D.

In addition to the allegations common to all Plaintiffs, Davis complains of

the following.

When Davis was promoted to Lead Ultrasound Technologist on February

28, 2014, she had to wait until May to receive her formal promotion and

corresponding pay increase.

On March 25, 2014, Parise entered the ultrasound department

unaccompanied, even though this violated a previous agreement between Plaintiffs

and management. The next day, Parise again entered the ultrasound department

and glared at Davis. Between August 2013 and March 2014, Bennett would glare

at Davis whenever the two were in close proximity.

On August 1, 2014, management denied Davis’s request for a compressed

work schedule even though it had approved such schedules for other ultrasound

technologists in the department.

On April 25, 2014, Davis took extended leave due to a work-related injury.

Management initially informed Davis that she would not be permitted to return to

work at the Tampa VA, but would instead be assigned to the PCA. Davis then told

management that she felt she was being retaliated against for her EEOC

complaints. The human resources department then informed Davis that

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management had had a “change of heart,” and that she would be permitted to

return to the Tampa VA after all. Davis returned on February 17, 2015.

Upon returning to work at the Tampa VA, Petrillo treated Davis differently

from how he treated other ultrasound technologists. Specifically, Petrillo

maintained a physical distance from Davis that made it difficult for Davis to

discuss patients with him. He also kept the door open when he met with Davis,

although he closed the door when meeting with other technologists.

E.

In addition to the allegations common to all Plaintiffs, Hernandez complains

of the following.

On August 27, 2015, Geraci told Hernandez that her breasts were size

double D, and pulled up her blouse to show Hernandez the outline of her breasts

through her undershirt. A few days later, Geraci—during a conversation with

Hernandez about transvaginal ultrasounds—asked Hernandez “Why don’t you just

let me borrow your vagina?” On September 3, 2015, Geraci approached

Hernandez and asked “Is the vagina here?,” and made a gesture of inserting

something into her vagina. Hernandez reported Geraci’s behavior to Petrillo.

Petrillo conducted a fact finding and gave both Geraci and Hernandez a verbal

warning.

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On September 10, 2015, Geraci stated that she enjoyed working at the

Tampa VA, but could not stand the fact that she had to work with “dirty vaginas.”

On September 18, 2015, Geraci gave Hernandez “an angry, hostile look.” On

September 21, 2015, Geraci refused to speak with Hernandez when Hernandez

approached her about a patient.

At some time in October 2015, Geraci gave Hernandez a high five and

“chest bumped” her. On multiple occasions in October and November 2015,

Hernandez saw Geraci scan her own abdomen with an ultrasound transducer. In

November 2015, Geraci told Hernandez, in a “condescending and hostile” tone, to

use Hernandez’s own assigned room. In December 2015, Geraci referred to a

radiology resident as “Dark Chocolate” and described “all the things she would

do” to attract him.

In December 2015 and January 2016, Geraci gave Hernandez “dirty looks,”

made disparaging remarks about Hernandez’s eating disorder, and told Hernandez

“Oh my God, you are obsessed over the stupidest shit ever.” On multiple

occasions, Geraci gave Hernandez disgusted looks while Hernandez was eating,

and, on one occasion, said “I can’t believe you’re going to eat all that.”

In January 2016, Geraci embraced Hernandez and kissed her on the cheek

after she told Geraci that her patient had cancelled an appointment. On another

occasion, Geraci caused Hernandez to be late for an appointment with a patient

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because Geraci took 50 minutes to perform an ultrasound that should have taken 30

minutes.

In February 2016, Geraci entered a room in which Hernandez was

performing an ultrasound and demanded that Hernandez leave the room. On

February 17, 2016, while Geraci was chaperoning Hernandez for a transvaginal

ultrasound, Geraci interrupted Hernandez and told her to “hurry up.” On February

19, 2016, Geraci told Hernandez, in an angry tone, that it was her responsibility to

close the examination rooms when she was done. That same day, Geraci asked

Hernandez, “in a condescending and angry tone,” whether she completed her

outpatient requests. Hernandez reported these incidents to Petrillo, but Petrillo

took no action.

In March 2016, Hernandez observed Geraci embrace Brent Burton, a male

ultrasound technologist, in an inappropriate manner. Hernandez also observed

Geraci sit on Burton’s lap and wrap her arms around his neck. On multiple

occasions in 2016, Geraci pulled up her shirt to reveal her abs to Hernandez despite

knowing that Hernandez did not want to see them. When Hernandez reported

Geraci’s behavior to Petrillo, he responded that he had more pressing issues to deal

with.

Hernandez also alleges that Petrillo refused to supply her with needed

equipment. For instance, Petrillo failed to fix a stretcher in the ultrasound room in

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which Hernandez worked, even though Hernandez repeatedly told him that it was

causing her physical pain and affecting her ability to care for patients.

Hernandez also alleges that she was mistreated by Victor Martinez, another

ultrasound technologist. On multiple occasions in 2016, Martinez teasingly asked

Hernandez where her “best friend” was, referring to Geraci. Martinez also

repeatedly told Hernandez that he was going to accuse her of harassment and take

her job. On one occasion, Martinez “became hostile towards” Hernandez because

Hernandez refused to perform a scan that had been assigned to Martinez.

Finally, Hernandez alleges that Petrillo holds her to a different standard than

males in the department. According to Hernandez, female ultrasound technologists

are given a greater volume of work and less time off than male ultrasound

technologists. On June 12, 2015, for example, Petrillo denied Hernandez’s request

for leave while granting the request of a more junior male employee.

F.

In June 2016, three radiologists—Dr. Thornton Eastham, Dr. Aaron

Andrews, and Dr. Katie Bailey—sent an anonymous letter to Joseph Battle,

Director of the Tampa VA, that corroborates many of Plaintiffs’ allegations. The

letter accuses radiology management of “managerial incompetence and neglect,

abuse of leadership position, fraud, administrative policy violations, and other

behaviors such as nepotism, retaliation, and intimidation.” With respect to

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retaliation, the letter alleges that “[e]mployees engaged in EEO or other complaints

of wrongdoing against the leadership are subjected to retaliatory behavior

including intentional creation of a hostile work environment, derogatory statements

about these employees in front of other staff, exclusion from advancement or

promotion within the department, and specific assignment of undesirable tasks or

duties.” The letter continues: “Employees are told verbally that communication or

testimony regarding any violations or accusations of wrongdoing will be learned of

immediately by the leadership and retaliated against accordingly.”

G.

On November 7, 2018, the District Court entered summary judgment in

favor of the Secretary. The Court found that Plaintiffs failed to carry their burden

under McDonnell Douglas because the conduct underlying their discrete retaliation

claims was either insufficiently adverse or supported by legitimate nonretaliatory

explanations. As to Plaintiffs’ hostile work environment claims, the Court found

that the conduct Plaintiffs complained of was not sufficiently severe or pervasive.

This appeal followed.

II.

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

Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). In doing so, we view the

evidence in the light most favorable to, and draw all reasonable inferences in favor

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of, the non-moving party. Id. Summary judgment is proper when the moving

party is entitled to judgment as a matter of law because of a lack of any genuine

issue of material fact. Fed. R. Civ. P. 56(c).

After careful consideration, we conclude the District Court’s entry of

summary judgment was proper as to Plaintiffs’ discrete retaliation claims. We

reach the same conclusion about Hernandez’s sex-based hostile work environment

claim. After summary judgment was entered in this case, a decision from this

Court clarified that retaliatory hostile work environment claims are not governed

by the “severe or pervasive” standard applied by the District Court here.

Monaghan v. Worldpay U.S. Inc., 955 F.3d 855, 862 (11th Cir. 2020). We

therefore vacate the part of the District Court’s order dealing with that claim and

direct the Court to analyze the claim consistent with our intervening decision.

III.

Title VII prohibits retaliation against an employee “because he has opposed

any practice made an unlawful employment practice by [Title VII], or because he

has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 2000e–3(a). We

have noted that § 2000e–16 was intended “to make Title VII applicable in the

federal workplace to the same extent that it was already applicable in the non-

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federal workplace.” Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1243

(11th Cir. 1998).

A plaintiff may establish a retaliation claim using either direct evidence or

circumstantial evidence. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085

(11th Cir. 2004); Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).

Direct evidence is “evidence which reflects a discriminatory or retaliatory attitude

correlating to the discrimination or retaliation complained of by the employee.”

Wilson, 376 F.3d at 1086 (quoting Damon v. Fleming Supermarkets of Fla., Inc.,

196 F.3d 1354, 1358 (11th Cir. 1999)) (internal quotation marks omitted). If

believed, direct evidence “proves [the] existence of [a] fact in issue without

inference or presumption.” Burrell v. Board of Trustees of Ga. Military College,

125 F.3d 1390, 1393 (11th Cir. 1997) (quoting Rollins v. TechSouth, Inc., 833 F.2d

1525, 1528 n.6 (11th Cir. 1987)). “‘Only the most blatant remarks, whose intent

could be nothing other than to discriminate’ on the basis of some impermissible

factor” constitute direct evidence. Schoenfeld, 168 F.3d at 1266 (quoting Carter v.

City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). A statement is not direct

evidence of retaliation unless it is made by a person involved in the allegedly

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retaliatory action and unless the statement relates to that action.4 See Trotter v. Bd.

of Trustees, 91 F.3d 1449, 1453–54 (11th Cir. 1996) (“For statements of

discriminatory intent to constitute direct evidence of discrimination, they must be

made by a person involved in the challenged decision.”); Standard v. A.B.E.L.

Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks by non-

decisionmakers or remarks unrelated to the decisionmaking process itself are not

direct evidence of discrimination.”). When, by contrast, an “alleged statement

suggests, but does not prove, a discriminatory motive, then it is circumstantial

evidence.” Wilson, 376 F.3d at 1086 (citing Burrell, 125 F.3d at 1393).

Plaintiffs argue that the record contains direct evidence of retaliatory intent

from several actors, including Stenzler, Parise, Battle, Bennett, and Chief of Staff

Edward Cutolo. However, all of the statements that Plaintiffs point to either

indicate retaliatory intent only inferentially or are insufficiently connected with any

specific retaliatory action.

4 Before Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006), we said that for a statement to be direct evidence, it must “be made by a person involved in the challenged decision,” Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453–54 (11th Cir. 1996) (emphasis added), and that “remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination,” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). These decisions reflect the pre-Burlington Northern mindset that a cognizable retaliation injury need be employment related. In light of Burlington Northern’s holding that a cognizable injury need not flow from an employment decision, it is more accurate to say that a statement is not direct evidence unless it is made by a person involved in the allegedly retaliatory action—whether an employment-related decision or not—and unless the statement relates to that challenged action.

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Consider three statements from Stenzler that Plaintiffs call direct evidence.

First, Stenzler told Tonkyro that Cutolo and Fogarty “would not allow [her] to

become a supervisor.” Tonkyro responded that she “believed [it] was because of

[her] EEO activity and the ‘headache [she] caused Mrs. Fogarty, that [she] would

not be allowed to advance to a supervisor position.’” Stenzler responded,

“[P]robably not.” Second, Stenzler told Eastham that Davis would never be a

supervisor. Third, Stenzler said that Plaintiffs were causing problems for the

ultrasound department by filing frivolous EEOC complaints. Stenzler made the

third statement over three years after he made the first two statements.

Stenzler’s first two statements are direct evidence only of the fact that

Stenzler thought that Tonkyro and Davis would not be selected for supervisory

positions. The statements betray nothing about Stenzler’s motives. At most,

Stenzler’s first statement affirms, though ambiguously, Tonkyro’s suspicions about

Fogarty’s retaliatory motives. But this constitutes mere circumstantial evidence of

Fogarty’s retaliatory intent, since an ambiguous statement about another person’s

subjective intent cannot be direct evidence of that intent. See Wilson, 376 F.3d at

1086 (“If [an] alleged statement suggests, but does not prove, a discriminatory

motive, then it is circumstantial evidence.”). Stenzler’s third statement is strong

evidence that he was annoyed by Plaintiffs’ EEOC activity, but the statement has

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no apparent connection with any retaliatory act by Stenzler. Therefore, Stenzler’s

statements constitute only circumstantial evidence.

Plaintiffs also point to five alleged statements by Parise. First, at a lunch

meeting with other radiologists, Parise stated that he would see the testimony given

in the AIB investigation into Plaintiffs’ 2012 EEOC complaints and “would know

who said what about him.” Second, in an informal meeting with other physicians,

Parise stated: “I [] choose not to go down [to the ultrasound department] because if

I do I’ll stick my fucking foot down [the ultrasound technicians’] throats.”5 Third,

Parise allegedly discussed Plaintiffs’ EEOC settlements publicly, saying that

Plaintiffs had received “something in the order of $50,000 each,” that Bennett “had

accepted a punishment,” but that he (Parise) “wasn’t accepting his” and “was going

to fight it.” Fourth, Parise told Eastham that “someone in the director’s office was

saying that [Plaintiffs] were going to get fired because there was so much in-

fighting going on.” Finally, when it was announced that Davis would be taking

maternity leave, Parise yelled “Yes” and made “an arm jerking motion to suggest a

celebratory action.”

5 Under the terms of the Settlement Agreements, Plaintiffs waived the right to pursue claims based on Parise’s first and second statements. See supra p.3. Plaintiffs argue, though, that the statements may nonetheless be considered as background evidence “relevant to intentions.” We assume without deciding that Plaintiffs are correct, and therefore consider the statements as possible direct evidence of retaliatory intent.

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As an initial matter, we note that Plaintiffs do not allege that Parise retaliated

against them by denying them promotions. It is undisputed that Parise had no

decisionmaking authority in this respect. Rather, Plaintiffs allege that Parise

retaliated against them by spreading rumors and making derogatory comments.

Indeed, the retaliation alleged from Parise consists in the very statements that

Plaintiffs use as direct evidence. In other words, Plaintiffs argue that Parise’s

statements constitute direct evidence of why he made those statements. This

argument is untenable.

Take, for instance, Parise’s first and third statements, which are the only

ones that facially pertain to Plaintiffs’ EEOC activity. Even assuming Parise made

the first statement because he wanted to intimidate other radiologists from

testifying against him in the AIB proceedings, we are still left to infer about the

motivation underlying the intimidation. It is certainly possible that Parise was

motivated to retaliate against Plaintiffs because of their EEOC activity. It is

equally possible that he was driven by self-preservation, fearing that he may lose

his job if anything negative came to light.

The motivations behind Parise’s third statement are equally ambiguous. He

may have shared the terms and circumstances of the settlements as an act of

retaliation. Or, he may have simply been boasting that he, unlike Bennett, was not

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going to accept his punishment and “was going to fight it.” 6 In sum, Parises’s

statements are not the sort of “blatant remarks[] whose intent could be nothing

other than to discriminate.” Schoenfeld, 168 F.3d at 1266 (quoting Carter, 870

F.2d at 582).

The alleged statements from Battle, Bennett, and Cutolo are not direct

evidence for the same reasons. 7 Therefore, Plaintiffs’ case is based only on

circumstantial evidence.

6 The fact that Parise understated the settlement amounts by $90,000 to $95,000 suggests, at least, that he was motivated by something other than a desire to accurately reveal the confidential terms of the settlements. While Parise said that Plaintiffs had received “something in the order of $50,000 each,” Tonkyro in fact received $145,000, Davis received $145,000, and Strauser received $140,000. 7 Plaintiffs argue that Battle directly revealed his retaliatory intent in his deposition when he stated that he did not sign an AIB report about Davis’s bullying of Geraci because he first “wanted to be sure . . . that there wouldn’t be anything retaliatory about it because I don’t have any interest in retaliating against anybody.” We are unconvinced by Plaintiffs’ paradoxical argument that Battle somehow revealed his retaliatory intent by stating that he had no intent to retaliate. Plaintiffs also argue that direct evidence of Bennett’s retaliatory intent consists in his ordering an employee to upload confidential employee information to the public S-Drive. But an act cannot constitute direct evidence that the act was retaliatory unless the intent behind the act “could be nothing other than to discriminate.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). As explained infra pp. 32–34, that is not the case here. Finally, Plaintiffs point to a statement Cutolo made to Bailey blaming certain “problem technologists” for issues in the radiology department. Because this statement was not made in connection with any alleged act of retaliation, it does not constitute direct evidence. And, to the extent the retaliation alleged is the statement itself, we reject the notion that an ambiguous statement such as this one can constitute direct evidence that it was made with retaliatory intent.

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When a plaintiff attempts to prove her case using only circumstantial

evidence, we apply the burden-shifting framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

This framework puts the initial burden on the plaintiff to establish a prima facie

case of retaliation. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824;

Eskra v. Provident Life and Acc. Ins. Co., 125 F.3d 1406, 1411 (11th Cir. 1997).

To establish a prima facie case, a plaintiff must show that: “(1) she engaged in an

activity protected under Title VII; (2) she suffered an adverse employment action;

and (3) there was a causal connection between the protected activity and the

adverse employment action.” Crawford, 529 F.3d at 970 (citing Pennington v.

City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)).

If the plaintiff establishes a prima facie case, a presumption arises “that the

adverse action was the product of an intent to retaliate.” Gogel v. Kia Motors

Manufacturing of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en banc)

(quoting Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)). “The burden

then shifts to the employer to ‘articulate’ a legitimate, non-discriminatory reason

for its action.” Schoenfeld, 168 F.3d at 1267 (quoting Texas Dep’t. of Cmty. Affs.

v. Burdine, 450 U.S. 248, 254–55, 101 S. Ct. 1089, 1094–95 (1981)). “If the

employer offers such legitimate reasons for the employment action, the plaintiff

22 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 23 of 45

must then demonstrate that the employer’s proffered explanation is a pretext for

retaliation.” Crawford, 529 F.3d at 976 (quoting Holifield v. Reno, 115 F.3d 1555,

1566 (11th Cir. 1997) (per curiam)). “Importantly, throughout this entire process,

the ultimate burden of persuasion remains on the employee.” Sims v. MVM, Inc.,

704 F.3d 1327, 1333 (11th Cir. 2013).

The parties agree that Plaintiffs established the first element of their prima

facie case—that they engaged in activity protected under Title VII—but they

disagree about whether Plaintiffs suffered adverse employment actions and, if so,

whether those adverse employment actions were causally connected to Plaintiffs’

protected activity.

Plaintiffs allege the following adverse employment actions: (1) they were

denied opportunities for advancement; (2) private information relating to their

EEOC activity was published on the S-Drive; and (3) VA employees spread

rumors and made disparaging comments about Plaintiffs and their EEOC activity.

Because we believe that the first two actions fail at the pretext stage of McDonnell

Douglas, we will assume arguendo that Plaintiffs established a prima facie case in

connection with them. Below, we consider whether Plaintiffs established a prima

facie case of retaliation for the rumors and disparaging comments.

An employment action is only “adverse” if the action “would have been

materially adverse to a reasonable employee or job applicant.” Burlington N. &

23 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 24 of 45

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409 (2006).

Generally, “that means that the employer’s actions must be harmful to the point

that they could well dissuade a reasonable worker from [engaging in protected

activity].” Id. Title VII does not protect against “those petty slights or minor

annoyances that often take place at work and that all employees experience.” Id. at

68, 126 S. Ct. at 2415. “[T]he sporadic use of abusive language, gender-related

jokes, [] occasional teasing,” and the like do not generally rise to the level of

material adversity. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct.

2275, 2284 (1998).

The essential question here is whether the rumors and comments about

Plaintiffs are mere “petty slights [and] minor annoyances” of the sort which Title

VII does not redress, or whether they are sufficiently severe to dissuade a

reasonable employee from engaging in EEOC activity. In evaluating the severity

of the rumors and comments, we must consider the context and circumstances in

which they were uttered. See Burlington, 548 U.S. at 69, 126 S. Ct. at 2415

(“[T]he significance of any given act of retaliation will often depend upon the

particular circumstances.”). However, we must not consider the rumors and

comments in the aggregate, as with a hostile work environment claim. See Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15, 122 S. Ct. 2061, 2073

(2002) (noting that discrete retaliation claims are different from hostile work

24 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 25 of 45

environment claims because the former are based on individual acts, while the

latter “are based on the cumulative effect of individual acts”); see also Brooks v.

Grundmann, 748 F.3d 1273, 1278 (D.C. Cir. 2014) (“Unlike a hostile work

environment claim . . . a discrete-acts claim involves a single act of discrimination

. . . .”). Instead, we must evaluate the severity of each statement independently—a

statement is not sufficiently adverse unless it, standing alone, “could well dissuade

a reasonable worker from [engaging in protected activity].” Burlington, 548 U.S.

at 57, 126 S. Ct. at 2409.

Plaintiffs base their retaliation claims on the following rumors and

comments.8 Stenzler said that Plaintiffs and their “frivolous” EEOC complaints

were responsible for the ultrasound department’s failures; Parise told other

radiologists that they should be careful if they go down to the ultrasound

department because they might get an EEOC complaint filed against them; Parise

told others that the ultrasound technologists were going to be fired for in-fighting;

Parise yelled “Yes” and made a celebratory gesture when it was announced that

Davis would be taking maternity leave; unidentified coworkers called Plaintiffs

8 Plaintiffs base their claims in part on statements that were made before the 2013 Settlement Agreements. As part of the Settlement Agreements, Plaintiffs waived their rights to pursue actions “which were raised or could have been raised” in the 2012 EEOC complaints, as well as “future causes of action against the [VA] based on such actions in existence” at the time of the settlements. The District Court rejected Plaintiffs’ claims to the extent they were based on statements subject to the waiver, and Plaintiffs do not argue that this was error. Therefore, we consider only the statements that were not subject to the waiver.

25 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 26 of 45

“money-grubbing bitches”; and Cutolo stated that the ultrasound technologists

were causing problems for the radiology department. In addition to these discrete

comments, Plaintiffs point to the deposition testimony of four different radiologists

to establish that there were rumors circulating about their EEOC activity. Dr.

Eastham, Dr. Lenny Chuang, Dr. Marla Hersh, and Dr. Bailey testified that they

had heard, either from Parise or elsewhere, that Plaintiffs had filed EEOC

complaints and obtained money settlements from the VA. Two of them also

testified that this was “common knowledge” and that “the whole department knew

about [it].”

In the aggregate, these rumors and comments caused Plaintiffs two

significant types of harm. First, they harmed Plaintiffs’ professional reputations by

creating the impression that Plaintiffs, as employees, are a liability. Eastham

testified that hospital employees in Pasco County, Bay Pines, and Vero Beach—all

between 25 and 150 miles of Tampa—have the impression that the ultrasound

department in the Tampa VA is filled with litigious “troublemakers” who “want all

the doctors to be fired.” Second, confidential information about Plaintiffs’ EEOC

activity was made known to their coworkers and even to many hospital employees

across central Florida. We have little doubt that a reasonable employee may well

be dissuaded from filing an EEOC complaint if she knew that she would

henceforth be regarded by her colleagues and superiors—and even by others in the

26 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 27 of 45

local industry—as a nuisance and a liability. Likewise, if an employee knew that

any complaint she makes, and the details of any resulting settlement, would

become the favorite subject of lunchtime discussions, she may rather tolerate

harassment or discrimination than gossip and infamy.

The problem for Plaintiffs, however, is that these harms do not flow from

any single rumor or comment, but from all the rumors and comments in the

aggregate. Because Plaintiffs have failed to identify any single statement that is

materially adverse on its own, we conclude that Plaintiffs have failed to establish a

prima facie case on this part of their retaliation claims.

We have assumed a prima facie case of retaliation based on the denial of

opportunities for advancement and the S-Drive incident. We now address the

Secretary’s proffered explanations for those actions and whether Plaintiffs

demonstrated that those explanations are pretext. Because we find that Plaintiffs

failed to show pretext, we conclude that the District Court properly granted

summary judgment on Plaintiffs’ retaliation claims.

To determine whether an employer’s proffered explanations are pretext, the

district court must “evaluate whether the plaintiff has demonstrated ‘such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

27 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 28 of 45

factfinder could find them unworthy of credence.’” Combs v. Plantation Patterns,

106 F.3d 1519, 1538 (11th Cir. 1997). “[A] reason is not pretext for [retaliation]

unless it is shown both that the reason was false, and that [retaliation] was the real

reason.’” Gogel, 967 F.3d at 1136 (quoting Springer v. Convergys Customer

Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (internal quotation marks

omitted) (alterations in original)). In showing that retaliation was the real reason

for the action, the plaintiff must show “that the unlawful retaliation would not have

occurred in the absence of the alleged wrongful action or action of the employer.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 133 S. Ct. 2517, 2533

(2013). In other words, the plaintiff’s protected activity must be a but-for cause of

the adverse action. 9 Id.

We begin with the Secretary’s proffered explanations for denying Plaintiffs

opportunities for advancement. In their affidavits and depositions, Plaintiffs

claimed they were retaliated against in connection with five different job openings:

9 Plaintiffs argue that a more lenient causation standard than the one articulated by the Supreme Court in Nassar applies to Title VII retaliation actions against federal employers under § 2000e–16. However convincing Plaintiffs’ argument may be in light of the Supreme Court’s decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), the argument is foreclosed by binding circuit precedent in Trask v. Secretary of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016). See Garrett v. Univ. of Ala. at Birmingham, 344 F.3d 1288, 1292 (11th Cir. 2003) (“While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point.”); Fla. League of Pro. Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“[W]e are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.”). 28 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 29 of 45

the September 2013 opening for MRI/Ultrasound Supervisor, the January 2014

opening for MRI/Ultrasound Supervisor, the January 2015 opening for Ultrasound

Supervisor, the March 2016 opening for Lead Ultrasound Technician at the PCA,

and the April 2016 opening for Ultrasound Supervisor. However, Plaintiffs made

no argument about the September 2013, January 2014, or January 2015 openings

in their memorandum in opposition to summary judgment before the District

Court. We therefore find that Plaintiffs have abandoned those particular claims.

See Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271 (11th Cir.

2019) (“The general rule is that we will not consider an issue raised for the first

time on appeal.”). Below, we consider the Secretary’s proffered explanations in

connection with the other two positions.

Regarding the March 2016 Lead Ultrasound Technician opening, the

Secretary explained that Tonkyro was not selected because management decided

that it would better meet the department’s needs to create a lead mammography

position in the main hospital instead. Plaintiffs argue that this reason is pretextual

because mammography was overstaffed and did not need a new lead position. The

only evidence Plaintiffs use to support their pretext argument, however, is the

deposition testimony of a mammography technologist who expressed the opinion

that three mammography technologists were too many for the patient load, space,

and equipment at the Tampa VA. This testimony does not support Plaintiffs’

29 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 30 of 45

argument because it says nothing about whether the department needed a new lead

position, as opposed to a new technologist position. And, even if the technologist

had testified that a new lead position would be unnecessary, such testimony would

be insufficient to establish pretext. To question the legitimacy of a staffing

decision on the basis of such testimony would violate the principle that “Title VII

is not designed to make federal courts sit as a super-personnel department that

reexamines an entity’s business decisions.” Davis v. Town of Lake Park, Fla., 245

F.3d 1232, 1244 (11th Cir. 2001) (quotation marks omitted). Therefore, Plaintiffs

failed to establish pretext in connection with the March 2016 position.

With respect to the April 2016 Ultrasound Supervisor opening, the Secretary

explained that Davis had not been selected because management put her

application on hold because of the AIB investigation into Geraci’s allegations that

Davis had been bullying her. Plaintiffs argue that the AIB investigation was

orchestrated specifically to give management a facially non-retaliatory reason to

deny Davis the position.

Plaintiffs’ theory is as follows. Geraci wanted to be transferred to the New

Port Richey clinic, and management wanted to prevent Davis from obtaining the

Ultrasound Supervisor opening. So, Geraci and management entered a conspiracy

30 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 31 of 45

to achieve these ends. 10 Geraci filed a complaint falsely accusing Davis of

bullying her, and management empaneled an AIB to investigate the accusations.

The AIB investigation provided a pretext both for Geraci to be transferred to New

Port Richey and for Davis’s application to be put on hold, at least temporarily.

There are at least two problems with Plaintiffs’ theory. First, there is no

evidence that the various actors involved in the AIB process conspired to achieve

the ends alleged. Geraci testified that she decided to write a letter to Stenzler about

Davis’s bullying on her own initiative. Geraci was not prompted to write the letter

or told that writing it would cause her to be transferred to New Port Richey. After

Geraci wrote the letter, Stenzler referred the matter to Cutolo and Battle, who

decided to initiate an AIB investigation. Nothing in the record suggests that

Cutolo or Battle initiated the investigation as part of a conspiracy with Geraci,

Petrillo, or Stenzler. Second, the AIB panel’s conclusion that Davis had been

bullying Geraci undermines the notion that the allegations were fabricated. The

panel was composed of three individuals from outside the radiology department

who, as far as the record shows, had no knowledge of Davis’s EEOC activity. The

panel concluded that Geraci had been bullied, and recommended remedial training

and teambuilding exercises. Nothing in the record suggests any improper motive

10 Geraci could not simply request a transfer to New Port Richey because the positions there were competitive, and employees more senior to her would have had priority.

31 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 32 of 45

or impartiality on the part of the panel. Instead, the record reflects that the panel

conducted a thorough investigation, interviewed several witnesses, and reached a

conclusion based on the evidence. Therefore, Plaintiffs have failed to show that

the AIB investigation was a pretext to deny Davis the Ultrasound Supervisor

position.

We now consider the Secretary’s proffered explanation regarding the S-

Drive incident. Plaintiffs’ allegation is that Bennett told Carolyn Eubanks, who

was Plaintiffs’ first-line supervisor at the time, to upload Plaintiffs’ private

information to the S-Drive as an act of retaliation. The Secretary explained that the

information was placed on the S-Drive not as an act of retaliation, but rather to

facilitate the transfer of employee personnel files. Specifically, Bennett instructed

Eubanks to place the files on the S-Drive so that Mario DeLeon, who was taking

over Eubanks’ role as supervisor, could download the files to his personal

computer. Though the files were supposed to be removed from the S-Drive once

DeLeon downloaded them, by oversight they remained for three months. This

explanation was supported by Eubanks’ deposition testimony, but contradicted by

Bennett’s, who said he never told Eubanks to put the files on the S-Drive. A

reasonable jury could certainly disbelieve Bennett, but the key question is whether

a reasonable jury could conclude that Bennett would not have told Eubanks to

upload the files but-for his retaliatory intent.

32 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 33 of 45

As previously discussed, there is no direct evidence linking the S-Drive

incident with Bennett’s retaliatory intent. If such a link is to be made, therefore, it

is through circumstantial evidence. There is plenty of evidence suggesting that

Bennett harbored animosity toward Plaintiffs, including glaring at Plaintiffs on

multiple occasions and making snide comments about Plaintiffs to others. Putting

this evidence together with the fact that Plaintiffs filed EEOC complaints against

Bennett and obtained settlements, a jury could conclude that Bennett harbored

animus toward Plaintiffs because of their EEOC activity. The question remains,

however, whether a jury could conclude that the S-Drive incident was a product of

Bennett’s retaliatory animus.

To raise a genuine issue as to whether the S-Drive incident was retaliatory,

Plaintiffs were required to meet the Secretary’s proffered explanation “head on and

rebut it,” Wilson, 376 F.3d at 1088, to show that the explanation is “unworthy of

credence,” Combs, 106 F.3d at 1538. Plaintiffs failed to do so. Eubanks testified

in her deposition that she was having trouble transferring her files to DeLeon, that

“it was extremely time consuming,” and that she “was not getting any help from

the [Information Resource Management Systems Department]” as to the proper

way to transfer the files. There is no evidence showing that Eubanks was not, in

fact, struggling to transfer her files. Bennett testified that he did not know the

contents of the folder that was uploaded to the S-Drive, and there is no evidence to

33 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 34 of 45

the contrary. There is no evidence that Bennett told anyone that Plaintiffs’ private

information was on the S-Drive, as one might expect if the incident had been

retaliatory. There is no evidence that anyone other than Plaintiffs and the two

individuals who brought the issue to Plaintiffs’ attention ever noticed that the files

were on the S-Drive. There is no evidence that the files were not removed in a

timely manner once the issue was flagged. On the contrary, Stenzler, Bennett, and

Graham removed the files within a few days. Finally, there is no evidence that

Plaintiffs were in any way singled out by the incident. Rather, the incident

compromised the privacy of patients and employees across the radiology

department, regardless of whether they had engaged in EEOC activity.

To be sure, it is irresponsible to place confidential files on a drive accessible

to employees who have no business seeing them. It is not at all implausible,

though, that unsound judgment might consider it an expedient means of transfer,

and that the files might then remain exposed through carelessness or oversight.

Met with such an explanation, Plaintiffs were required to raise doubt that the

incident was more than plain irresponsibility. They failed to do so.11

11 One final point: If an act of retaliation, the S-Drive incident was not a particularly well- calculated one. Assuming Eubanks and DeLeon were not co-conspirators with Bennett (and there is no evidence they were), the expected course of events would be as follows. Bennett tells Eubanks to upload the files to the S-Drive on her last day of work. Eubanks does so, then DeLeon downloads them and promptly removes them from the S-Drive. Assuming DeLeon’s first day was Eubanks’ last, this leaves Plaintiffs’ information exposed for a matter of hours. Unless Bennett plans to download the files himself during these few hours and distribute them throughout the VA and beyond (and there is no evidence that he did), his plan will not likely do 34 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 35 of 45

For the foregoing reasons, we conclude that Plaintiffs failed to carry their

burden under McDonnell Douglas. The District Court therefore properly entered

summary judgment on Plaintiffs’ discrete retaliation claims.

IV.

Title VII prohibits the creation of a hostile work environment in retaliation

for an employee’s protected activity, 42 U.S.C. § 2000e–3; Gowski, 682 F.3d at

1312, or because of the employee’s “race, color, religion, sex, or national origin,”

§ 2000e–2; Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370

(1993).

We first recognized a cause of action for retaliatory hostile work

environment in Gowski. In that opinion, we said such claims are analyzed under

the same standard as substantive hostile work environment claims—that is, a

plaintiff must show that “the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.” Gowski, 682 F.3d at 1311 (quoting Harris, 510 U.S. at 21, 114 S.

Ct. at —). It is understandable, then, that the District Court below applied the

“severe or pervasive” standard to Plaintiffs’ retaliatory hostile work environment

Plaintiffs much harm. It is only by accident that Plaintiffs’ information remained exposed for as long as it did, owing either to DeLeon’s failure to remove the files from the S-Drive or Eubanks’ failure to tell him to.

35 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 36 of 45

claims. After the District Court’s order, however, we issued an opinion in

Monaghan v. Worldpay U.S. Inc., rejecting Gowski’s “severe or pervasive”

standard as inconsistent with the Supreme Court’s decision in Burlington Northern

and our earlier decision in Crawford (applying Burlington Northern’s retaliation

standard). 955 F.3d 855, 862 (11th Cir. 2020). Instead, we said retaliatory hostile

work environment claims, like retaliation claims based on discrete acts, prevail if

the conduct complained of “well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Id. at 862–63 (quoting

Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415).

Because the District Court analyzed Plaintiffs’ retaliatory hostile work

environment claims under Gowski, we vacate that part of the judgment and direct

the Court to instead apply Burlington Northern on remand. Hernandez’s hostile

work environment claim based on sex, by contrast, was properly analyzed under

the “severe or pervasive” standard. Our analysis of that claim follows.

To establish a sex-based hostile work environment, a plaintiff must show

that “the workplace is permeated with discriminatory intimidation, ridicule, and

insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th. Cir. 2002) (quoting Harris, 510 U.S. at

21, 114 S. Ct. at 370). To be sufficiently “severe or pervasive,” the employer’s

36 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 37 of 45

actions “must result in both an environment that a reasonable person would find

hostile or abusive and an environment that the victim subjectively perceive[s] . . .

to be abusive.” Id. at 1276 (quotation marks omitted). “In evaluating the objective

severity of the harassment,” we look to the totality of the circumstances, including:

“(1) the frequency 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 unreasonably interferes with the employee’s job

performance.” Id.

The standards for judging hostility are intended to be “sufficiently

demanding to ensure that Title VII does not become a ‘general civility code.’”

Faragher, 524 U.S. at 788, 118 S. Ct. at 2283. “Properly applied, they will filter

out complaints attacking the ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and occasional teasing.”

Id. (internal quotation marks omitted). “[M]ere utterance of an . . . epithet which

engenders offensive feelings in an employee does not sufficiently affect the

conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21, 114 S.

Ct. at 370 (quotation marks omitted) (citation omitted).

In addition to establishing that the employer’s actions were sufficiently

“severe or pervasive,” a plaintiff must show that the actions were based on her sex

rather than some other unprotected characteristic. Mendoza v. Borden, Inc., 195

37 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 38 of 45

F.3d 1238, 1245 (11th Cir. 1999) (en banc). To do so, she “must show that but for

the fact of her sex, she would not have been the object of harassment.” Henson v.

City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).

Hernandez’s sexual harassment claim is based primarily on Geraci’s

conduct. Hernandez complains of several incidents: Geraci pulled up her blouse to

show Hernandez the outline of her breasts through her undershirt; Geraci made

inappropriate jokes to Hernandez, using the word “vagina”; Geraci made a gesture

of inserting something into her vagina to Hernandez; Geraci gave Hernandez an

angry look; Geraci ignored Hernandez on multiple occasions; Geraci gave

Hernandez a “chest bump”; Geraci scanned her own abdomen with an ultrasound

transducer in Hernandez’s presence, and revealed her abs to Hernandez multiple

times; Geraci spoke to Hernandez in a “condescending and hostile tone”; Geraci

insulted Hernandez about her eating disorder; Geraci embraced Hernandez and

kissed her on the cheek; and Hernandez observed Geraci interacting with a male

coworker in an inappropriately flirtatious manner. Hernandez also bases her claim

on Petrillo’s failure to remedy the sexually hostile work environment created by

Geraci.

As an initial matter, most of Geraci’s conduct lacks “the necessary sexual or

other gender-related connotations to be actionable sex discrimination.” Mendoza,

195 F.3d at 1247. We have noted that “Title VII does not prohibit profanity alone,

38 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 39 of 45

however profane . . . [nor] harassment alone, however severe and pervasive.

Instead, Title VII prohibits discrimination, including harassment that discriminates

based on a protected category such as sex.” Baldwin v. Blue Cross/Blue Shield of

Ala., 480 F.3d 1287, 1301–02 (11th Cir. 2007). “[S]exual language and

discussions that truly are indiscriminate do not themselves establish sexual

harassment under Title VII.” Reeves, 594 F.3d at 809. “[W]orkplace

harassment . . . is [not] automatically discrimination because of sex merely because

the words used have sexual content or connotations.” Id. (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002 (1998)).

Here, Hernandez failed to raise a genuine issue of fact that Geraci’s conduct

was based on Hernandez’s sex. In making this inquiry, we are guided by the

“common-sense rule that the context of offending words or conduct is essential to

the Title VII analysis.” Id. at 810.

Consider the context in which Geraci revealed the outline of her breasts to

Hernandez. The incident occurred during a conversation about a male doctor to

whom Geraci was attracted. Hernandez told Geraci that the doctor preferred “big

breasts,” and Geraci proceeded to lift up her shirt to prove that she was the doctor’s

type. Nothing in the record allows the conclusion that Geraci’s conduct had

anything to do with Hernandez’s sex.

39 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 40 of 45

Similarly, the context surrounding Geraci’s inappropriate touching of

Hernandez shows that the touching was not sex based. Geraci “chest bumped”

Hernandez after learning of her employment benefits and giving Hernandez a high-

five. Nothing in the record suggests that the bump was anything more than a mere

celebratory gesture, as the context and the definition of the phrase suggest. See

Macmillan Dictionary, Chest Bump,

https://www.macmillandictionary.com/us/dictionary/american/chest-bump (last

accessed Dec. 29, 2020) (defining “chest bump” as “an action in which two people

bump their chests together, usually as a celebration”). Geraci’s decision to

embrace Hernandez and kiss her on the cheek was similar—Geraci did so after

Hernandez told her that Geraci’s patient cancelled an appointment.

Likewise, the record shows that Geraci’s use of the word “vagina” occurred

first in the context of a discussion about transvaginal ultrasounds. Then,

apparently realizing that her talk of vaginas bothered Hernandez, Geraci began

teasing Hernandez with the word. “Even gender-specific terms cannot give rise to

a cognizable Title VII claim if used in a context that plainly has no reference to

gender.” Reeves, 594 F.3d at 810. Although the word “vagina” is plainly gender-

specific, Geraci’s use of it was not gender-derogatory. Compare id. at 811–12 (a

jury could find that the use of the words “whore,” “bitch,” and “cunt,” together

with “vulgar discussions of women’s breasts, nipples, and buttocks” “contributed

40 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 41 of 45

to conditions that were humiliating and degrading to women on account of their

gender”).

Finally, there is no evidence suggesting that the angry looks, harsh words,

and silent treatment that Geraci gave Hernandez were because of Hernandez’s sex.

On the contrary, the record suggests that Geraci was angry at Hernandez because

Hernandez reported Geraci for sexual harassment.

Even if Geraci’s conduct was based on Hernandez’s sex, Hernandez’s claim

would still fail because the conduct is insufficiently severe or pervasive to alter the

terms and conditions of Hernandez’s employment. “[W]e proceed with common

sense, and an appropriate sensitivity to social context, to distinguish between

general office vulgarity and the conduct which a reasonable person in the

plaintiff’s position would find severely hostile or abusive.” Reeves, 594 F.3d at

811 (quotation marks omitted) (alterations adopted).

In Mendoza, we said that a male supervisor’s conduct was not threatening or

humiliating to a female employee when that conduct included telling the employee

he was “getting fired up,” making sniffing sounds while staring at the employee’s

crotch, brushing his hip against the employee’s hip, and following the employee

around the workplace. 195 F.3d at 1248–49.

In Johnson v. Booker T. Washington Broadcasting Service, Inc., by contrast,

we held that an employee was sexually harassed when her male coworker

41 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 42 of 45

repeatedly told her she had a sexy voice, winked at her, exposed the imprint of his

private parts to her through his pants, gazed at her body in a sexual manner,

repeatedly attempted to massage her shoulders, rubbed his body parts against her,

and asked her questions about her sex life, among other things. 234 F.3d 501, 506

(11th Cir. 2000).

Geraci’s conduct toward Hernandez is significantly less severe than the

conduct at issue in Johnson, and likely less severe than the insufficiently severe

conduct in Mendoza, as well. Unlike those cases, some of Geraci’s conduct was

merely witnessed by Hernandez rather than directed at her—namely, Geraci

scanning her own abdomen, embracing a male coworker, and sitting on his lap.

And the physical conduct that Geraci did direct toward Hernandez—pulling up her

shirt, chest bumping, hugging, and kissing Hernandez—is, as explained above,

qualitatively different from the sexually charged conduct in Johnson and Mendoza.

In sum, Geraci’s conduct is of an entirely different nature from the sexually

predatory conduct at issue in Johnson and Mendoza. Such conduct is insufficiently

severe or pervasive to alter the terms and conditions of Hernandez’s employment.

Finally, Hernandez alleges that Petrillo held her to a different standard than

similarly situated males in the ultrasound department. In particular, Hernandez

complains that Petrillo denied her request for leave, while granting the request of a

male employee with less seniority. This, however, is a quintessential “isolated

42 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 43 of 45

incident[]” of the sort that is insufficient to alter the terms and conditions of

employment. Faragher, 524 U.S. at 788, 118 S. Ct. at 2283.

For the foregoing reasons, the District Court properly granted summary

judgment for the Secretary on Hernandez’s sex-based hostile work environment

claim.

V.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

WITH INSTRUCTIONS.

43 USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 44 of 45

APPENDIX

James A. Haley VA Organizational Structure (2012)

Kathleen Fogarty Director

Edward Cutolo Chief of Staff

Stephen Stenzler Chief of Radiology (beginning October 2012) Joseph Parise Assistant Chief of Radiology

John Bennett Chief Radiology Technologist

Jeri Graham MRI/MIT Supervisor (pre-April)

Erin Tonkyro Kara Davis Dana Strauser Yenny Hernandez Medical Instrument Medical Instrument Medical Instrument Medical Instrument Technologist Technologist Technologist Technologist USCA11 Case: 19-10014 Date Filed: 03/24/2021 Page: 45 of 45

James A. Haley VA Organizational Structure (2016)

Joseph Battle Director

Stephen Stenzler Chief of Radiology John Bennett Joseph Parise Administrative Officer Assistant Chief of Radiology of Radiology

Jeri Graham Chief Radiology Technologist

Scott Petrillo MRI/MIT Supervisor

Erin Tonkyro Kara Davis Dana Strauser Yenny Hernandez Lead Medical Medical Instrument Medical Instrument Medical Instrument Instrument Technologist Technologist Technologist Technologist