Red Mendoza v. Borden, Inc., D.B.A. Borden's Dairy

195 F.3d 1238, 1999 U.S. App. LEXIS 30400, 81 Fair Empl. Prac. Cas. (BNA) 470, 1999 WL 1036607

Opinions

HULL, Circuit Judge:

This appeal requires this Court to determine whether Appellant Red Mendoza introduced sufficient evidence at trial to support her claim alleging hostile-environment sexual harassment. We conclude that she did not, and therefore we hold that the district court properly granted Appellee Borden’s Rule 50(b) motion for judgment as a matter of law on Mendoza’s sexual-harassment claim.¹

I. Procedural History

In April 1997, Mendoza filed a complaint in the United States District Court for the Southern District of Florida against Borden alleging a variety of employment claims. Mendoza asserted claims for age discrimination under the Age Discrimination in Employment Act (“ADEA”), disability discrimination under the Americans with Disabilities Act (“ADA”), retaliation under Title VII, and sexual harassment under Title VII. Mendoza also asserted state-law claims alleging intentional infliction of emotional distress and discrimination in violation of the Florida Civil Rights Act.

Following discovery, Borden moved for summary judgment on all claims. After hearing oral argument, the district court granted summary judgment to Borden on all of Mendoza’s claims except her sexual-harassment and disability-discrimination claims.

The parties then proceeded to a jury trial. Following the conclusion of Mendoza’s case in chief, the district court granted judgment as a matter of law to Borden on her remaining claims including Mendoza’s hostile-environment sexual-harassment claim.

Mendoza appealed the district court’s orders awarding summary judgment to Borden on her ADEA, retaliation, and state-law claims and the district court’s order granting Borden judgment as a matter of law on Mendoza’s sexual-harassment and ADA claims. A panel of this Court affirmed the district court’s summary-judgment rulings and the entry of judgment as a matter of law on the ADA claim, but reversed the district court’s ruling on Borden’s motion for judgment as a matter of law on Mendoza’s sexual-harassment claim. Mendoza v. Borden, Inc., 158 F.3d 1171 (11th Cir.1998). On Borden’s suggestion for rehearing en banc, this Court voted to hear the case en banc, vacated the panel’s opinion, and subsequently directed the parties to brief issues related to Mendoza’s sexual-harassment claim. Mendoza v. Borden, Inc., 169 F.3d 1378 (11th Cir.1999).

We agree with the panel that the district court properly granted Borden’s motions for summary judgment and judgment as a matter of law on Mendoza’s claims for age discrimination, disability discrimination, retaliation, intentional infliction of emotional distress, and discrimination in violation of the Florida Civil Rights Act. Therefore, we affirm the district court’s entry of judgment in favor of Borden on Mendoza’s claims for age discrimination, disability discrimination, retaliation, and Mendoza’s state-law claims. However, we disagree with the panel’s conclusion on Mendoza’s sexual-harassment claim. For the reasons below, we conclude that the district court did not err in granting Borden’s motion for judgment as a matter of law on Mendoza’s sexual-harassment claim.

II. Factual Background

Mendoza worked in Borden’s Miami facility for a total of sixteen months. In December 1993, Mendoza began work with Borden as a temporary employee in the accounting department. In April 1994, she became a permanent employee. Her employment ended in April 1995. According to Borden, Mendoza’s employment ended because she was absent from work for three consecutive days without calling to explain her absence as required by Borden’s written personnel policies.

During most of her tenure with Borden, Mendoza’s supervisor was Daniel Page. He began working in the Miami facility in May 1994; and therefore, his employment overlapped with Mendoza’s for approximately eleven months. As the controller of the Miami facility, Page was the highest ranking Borden employee at the facility. Thus, Page exercised supervisory authority over Mendoza.

The Miami facility where Mendoza worked consisted of several discrete areas. The plant where the milk was processed constituted the majority of the facility, but the facility also included various offices, hallways, and an outdoor picnic area. Mendoza worked in the same office area with eight to twelve other accounting clerks. Page worked in a glass-enclosed office situated in one corner of that office area. From his desk, Page could observe the rest of the office area.

In sexual harassment cases, the courts must consider the alleged conduct in context and cumulatively. Therefore, we set forth all alleged harassing conduct so that we can look at the totality of the circumstances. At trial, Mendoza testified to these instances of conduct by Page. First, she testified that:

the man was constantly watching me and following me around and looking me up and down, whether it was face to face with me or as I would get up from a lunch table or from the picnic table to walk away and to go back to the office.

Later, Mendoza further explained Page’s conduct:

He seemed to be wherever I was in the plant. He followed me not around the office, but around the hallways in the Plant. Okay? He was at a lunch table in the lunch room. He would be at a picnic table outside. And he would look me up and down, very, in a very obvious fashion. When I was face to face with him, when I would get up and walk away from these tables or areas, I would feel him watching me up and down from— okay.

Finally, Mendoza reiterated that Page’s following and watching “was a constant thing” and that Page never said anything during the following and watching.

Mendoza also testified about two instances when Page “looked at me up and down, and stopped in my groin area and made a ... sniffing motion.” Mendoza described these two instances as follows:

There was an incident where I was standing at a copy machine direct right next to his office. I was making copies. I felt somebody watching me. I looked directly to my right. He was sitting at a chair in the conference room, which is approximately 20, 25 feet away from me, at a chair at the end of the table. And he looked at me up and down, and stopped in my groin area and made a (indicating) sniffing motion.

This also happened another time. It had to be in March, I had the flu. I went into his office — he was sitting at his computer — to tell him that my doctor wanted me to take time off because of this flu. And he turned around to his right, looked directly at me, up and down, and stopped again in the groin area, made a sniffing motion again, (indicating), like that.

(Emphasis supplied). In one instance, Page was twenty to twenty-five feet away from Mendoza, and in the other, Page was sitting at his computer when Mendoza entered his office. She further testified to one other time when he walked around her desk and sniffed without looking at her groin. Mendoza admitted that Page also never said anything to her during what she perceived to be the sniffing nor the looking up and down.

Explaining her only allegation that included any physical conduct, Mendoza testified that while she was at a fax machine in a hallway, Page passed by her and “rubbed his right hip up against my left hip” while touching her shoulder and smiling. Mendoza’s complete description of this follows:

I was doing a fax. We had a small coffee machine directly outside the office to the right of our office. I was doing a fax. And this was — the fax machine was by the doorway, and he rubbed — he went by me and he rubbed his right hip up against my left hip. I was at an angle, rubbed against me, walked by me, touched my shoulders at the same time, simultaneously. I was startled, I looked up, and he gave me a big smile.

When asked if Page said anything at that point, Mendoza testified, “No, he didn’t.” Mendoza also explained that this was the only physical contact during the eleven months she worked for Page. Finally, Mendoza described an incident when she confronted Page by entering his office and saying “I came in here to work, period.” According to Mendoza, Page responded by saying “Yeah, I’m getting fired up, too.”² When asked if Page said anything else during that meeting, Mendoza testified, “No, he didn’t.” Mendoza also admitted this was the only time where Page said anything to her that she perceived to be of a sexual nature. When asked if “Page ever use[d] vulgar language with you?”, Mendoza replied, “No, he didn’t.”³

At the close of Mendoza’s evidence, Borden moved for judgment as a matter of law on Mendoza’s hostile-environment sexual-harassment claim. After hearing argument from counsel, the district court, ruling from the bench, granted Borden’s motion. The court found the incidents of harassment “in the minds of a reasonable juror or to a reasonable person, are not physically threatening or humiliating, and certainly there was not a sufficient frequency and severity to suggest a hostile or abusive environment.” The court further remarked that the allegations were largely devoid of any physical contact or overly offensive comments. Accordingly, the district court concluded that, assuming Mendoza’s allegations were sexual in nature, Mendoza had not established a hostile or abusive work environment.

III. Standard of Review and Standard for Granting Judgments as a Matter of Law

This Court reviews de novo a district court’s denial of a motion for judgment as a matter of law. Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997), cert. denied sub nom. Combs v. Meadowcraft Co., 522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). We employ the same standard the district court applied, “reviewing] all of the evidence in the light most favorable to, and with all reasonable inferences drawn in favor of, the nonmoving party.” Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th Cir.1995). Although the existence of a genuine issue of material fact precludes judgment as a matter of law, “a jury question does not exist because of the presence of a ‘mere scintilla of evidence’ ”. Id. A motion for judgment as a matter of law will be denied only if “reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.” Id. These standards require us to consider “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Combs, 106 F.3d at 1526 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion was properly granted.” Combs, 106 F.3d at 1526 (quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)).

We recognize that claims of employment discrimination, including sexual-harassment claims, present fact-intensive issues. However, we agree with the Fifth Circuit’s observation that motions for summary judgment or judgment as a matter of law are appropriate to “police the baseline for hostile environment claims.” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 n. 8 (5th Cir.1999).

IV. Discussion

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It expressly prohibits refusing to hire or discharging an employee based on a prohibited factor. Id. Likewise, Title VII also expressly provides that “[i]t shall be an unlawful employment practice for an employer ... otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Id.

Title VII does not mention sexual harassment. Nevertheless, the Supreme Court and this Court long have recognized that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminato-rily hostile or abusive environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (other internal quotation marks and citations omitted)); Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir.1982) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971) (“[T]he phrase ‘terms, conditions, or privileges of employment’ in (Title VII) is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.”)).

To establish a hostile-environment sexual-harassment claim under Title VII based on harassment by a supervisor, an employee must show: (1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (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) a basis for holding the employer liable. Henson, 682 F.2d at 903-05.⁴

Although Title VII’s prohibition of sex discrimination clearly includes sexual harassment, Title VII is not a federal “civility code.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 1000-02,140 L.Ed.2d 201 (1998) (“We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (“A recurring point in these opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” (internal citation omitted)); Meritor, 477 U.S. at 67, 106 S.Ct. 2399 (“[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VIL”).

Sexual harassment constitutes sex discrimination only when the harassment alters the terms or conditions of employment. The paradigm of sexual harassment as federally prohibited employment discrimination occurs when an employee’s expressed terms of employment, such as salary or continued employment, are conditioned upon compliance with the employer’s sexual demands. Burlington Indus., 118 S.Ct. at 2265 (“When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VIL”). In such a case, traditionally described as quid pro quo harassment, the “discrimination with respect to terms or conditions of employment [is] explicit.” Id. at 2264; see also Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246 (11th Cir.1998).

Absent such “explicit” discrimination, an employee must make some showing in order to connect allegations of sexual harassment to a violation of Title VII. Thus, in the cases traditionally described as hostile-environment cases, an employer’s harassing actions toward an employee do not constitute employment discrimination under Title VII unless the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” Meritor, 477 U.S. at 67, 106 S.Ct. 2399 (quoting Henson, 682 F.2d at 904).

Establishing that harassing conduct was sufficiently severe or pervasive to alter an employee’s terms or conditions of employment includes a subjective and an objective component. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. The employee must “subjectively perceive” the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. Id. The environment must be one that “a reasonable person would find hostile or abusive” and that “the victim ... subjectively perceive[s] ... to be abusive.” Id at 21, 114 S.Ct. 367. Furthermore, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering ‘all the circumstances.’ ” Oncale, 118 S.Ct. at 1003 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367).

The objective component of this analysis is somewhat fact intensive. Nevertheless, the Supreme Court and this Court have identified the following four factors that should be considered in determining whether harassment objectively altered an employee’s terms or conditions of employment: (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. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997) (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). The courts should 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 alter the terms or conditions of the plaintiffs employment and create a hostile or abusive working environment. Id; see Harris, 510 U.S. at 23, 114 S.Ct. 367; Henson, 682 F.2d at 904; Faragher, 118 S.Ct. at 2283 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367, and explaining that “[w]e directed courts to determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances’ ”).

Other circuits have applied these factors to delineate a minimum level of severity or pervasiveness necessary for harassing conduct to constitute discrimination in violation of Title VII. Many decisions throughout the circuits have rejected sexual-harassment claims based on conduct that is as serious or more serious than the conduct at issue in this appeal. Shepherd v. Comptroller of Public Accounts of Texas, 168 F.3d 871, 872-75 (5th Cir.1999) (holding that several incidents over a two-year period, including comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, touching plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support hostile-environment claim); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264-67 (5th Cir.1999) (noting it was “dubious” whether several sexually oriented comments and gestures and an implied threat of retaliation for refusing a sexual advance would be sufficient to establish a hostile environment); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (holding that statement that plaintiff had the “sleekest ass” in office plus single incident of “deliberately” touching plaintiffs “breasts with some papers that he was holding in his hand” were insufficient to alter the terms or conditions of the plaintiffs employment); Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998) (holding actions insufficient to support hostile environment claim where co-employees teased plaintiff, made sexual jokes aimed at her, asked her what “putting one rubber band on top and another on the bottom means,” commented about her low neck tops, repeated staring at her breasts with attempts to make eye contact, and four incidents of touching her arm, fingers or buttocks); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir.1997) (holding five “sexually-oriented, offensive” statements over sixteen months insufficient to show hostile environment, even though one of the harasser’s statements occurred while he put his arm around plaintiff, looked down her dress and said, “well, you got to get it when you can”); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir.1996) (holding offensive comments including repeatedly calling the plaintiff a “sick bitch” insufficient under Harris because not necessarily gender-related); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753-54 (4th Cir.1996) (holding evidence that the harasser “bumped into [the plaintiff], positioned a magnifying glass over [the plaintiffs] crotch, flipped his tie over to see its label, gave him a congratulatory kiss in the receiving line at [a] wedding, and stared at him in the bathroom” insufficient to establish violation of Title VII); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24 (6th Cir.1997) (reversing jury verdict and finding conduct was “sex-based” but insufficiently severe or pervasive to state actionable claim, where conduct over a four-month period involved repeated sexual jokes; one occasion of looking plaintiff up and down, smiling and stating, there’s “Nothing I like more in the morning than sticky buns”; suggesting land area be named as “Tits-ville” or “Twin Peaks”; asking plaintiff, “Say, weren’t you there [at a biker bar] Saturday night dancing on the tables?”; stating, “Just get the broad to sign it”; telling plaintiff she was “paid great money for a woman”; laughing when plaintiff mentioned the name of Dr. Paul Busam, apparently pronounced as “bosom”); Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995) (holding insufficiently severe or pervasive to support a hostile-environment claim nine instances of offensive behavior over seven months including repeated references to plaintiff as a “tilly” and a “pretty girl” and one instance of simulated masturbation); Kidwai v. McDonald’s Corp., No. 93-1720, 1994 WL 136971 (4th Cir.1994) (holding insufficient under Harris seven incidents, including one instance in which harasser asked plaintiff whether “she was in bed with someone”); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (holding plaintiffs claims—supervisor repeatedly asked about her personal life, told her how beautiful she was, asked her on dates, called her a dumb blonde, put his hand on her shoulder at least six times, placed “I love you” signs in her work area, and tried to kiss her once at a bar and twice at work—were not sufficient for actionable sexual harassment); see also DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995) (“A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace.”); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263 (5th Cir.1999) (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, longlásting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”).

In this appeal, the conduct alleged by Mendoza falls well short of the level of either severe or pervasive conduct sufficient to alter Mendoza’s terms or conditions of employment. Construing the evidence in the light most favorable to Mendoza, she presented evidence of four categories of harassing conduct: (1) one instance in which Page said to Mendoza “I’m getting fired up”; (2) one occasion in which Page rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing sound while looking at Mendoza’s groin area and one instance of sniffing without looking at her groin; and (4) Page’s “constant” following and staring at Mendoza in a “very obvious fashion.”

As an initial matter, whether Page’s conduct testified to by Mendoza includes the necessary sexual or other gender-related connotations to be actionable sex discrimination is questionable. See Brill v. Lante Corp., 119 F.3d 1266, 1274 (7th Cir.1997) (rejecting the plaintiffs attempt to buttress a hostile-environment claim with evidence of unpleasant, but non-sexual, conduct); Galloway, 78 F.3d at 1167-68 (noting that the term “sick bitch” is not necessarily a sexual or gender-related term). For example, although the statement “I’m getting fired up” could under some circumstances denote sexual or romantic desire, Page’s statement that he was “getting fired up” occurred in the context of reacting to a complaint by Mendoza. As she described the interaction: “I went into his office angry and disgusted.... Mr. Page turned around and I said to him, T came in here to work, period’ and. his reply to me was ‘yeah, I’m getting fired up, too.’ ” By Mendoza’s own description, Page did not approach her but instead, she approached Page while another employee was present in his office. Mendoza also admits that Page said nothing else. Thus, the circumstances of this interaction do not objectively indicate that the statement “I’m getting fired up” had a sexual or other gender-related connotation.

As another example, although “following and staring” can betray romantic or sexual attraction, the everyday observation of fellow employees in the workplace is also a natural and unavoidable occurrence when people work together in close quarters or when a supervisor keeps an eye on employees. For example, Mendoza described Page’s constant “following and staring” as “he always seemed to be wherever I was. If I was in the lunch room, he was there. If I was at a picnic table outside on a break, he was there.” Nevertheless, because we conclude that the conduct established by Mendoza was not sufficiently severe or pervasive to alter Mendoza’s terms or conditions of employment, we assume, but do not decide, that this conduct is sexual in nature and thus might implicate sex discrimination.⁵

Turning to the heart of this appeal, an examination of the factors from Harris and applied in Allen demonstrates that Mendoza did not endure conduct that was so severe or pervasive that it altered the terms or conditions of her employment. Three of the four factors—physically threatening or humiliating conduct, interference with job performance, and severity—are clearly absent from the conduct established by Mendoza. The other factor—frequency of the harassing conduct— is also for the most part lacking, but to the extent Mendoza showed frequent conduct, the frequency of it does not compensate for the absence of the other factors.

First and most importantly, Mendoza did not present evidence that Page’s conduct was “physically threatening or humiliating” or that the cumulative effect of this conduct “unreasonably interfered” with Mendoza’s job performance. Even construing the evidence in the light most favorable to Mendoza, Page’s statement “I’m getting fired up” and the sniffing sounds are hardly threatening or humiliating. Compare Hall v. Gus Const Co., 842 F.2d 1010, 1012 (8th Cir.1988) (sexual harassment established with evidence that, inter alia, female employees were held down so that other employees could touch their breasts and legs), with Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir.1996) (holding sexually-oriented joke is the kind of non-threatening “utterance” that cannot alone support hostile-environment claim). Even more clearly, the one instance of Page .brushing his hip against Mendoza’s hip and Page’s constant “following” of Mendoza are neither threatening nor humiliating. Likewise, nothing in the record indicates that Page’s conduct impaired Mendoza’s job performance.

Second, none of the conduct alleged by Mendoza is severe. Even if somehow offensive, Page’s statement “I’m getting fired up,” the three sniffing sounds, the one instance of physical conduct, and the following/staring are much less severe than the incidents of sexual banter and inappropriate touching described, and found insufficient, by the Second Circuit in Quinn and the Fourth Circuit in Hopkins, for example. Quinn, 159 F.3d at 768 (holding a comment about the plaintiffs “posterior” and touching of her breasts with some papers did not create a hostile environment); Hopkins, 77 F.3d at 753-54 (holding that multiple instances of inappropriate conduct, including placing a magnifying glass over the plaintiffs crotch, did not establish sexual harassment).

Third, aside from Page’s “constant” following and staring, the conduct asserted by Mendoza was not frequent. She established a single instance of slight physical contact, one arguably inappropriate statement, and three instances of Page’s making a sniffing sound. These instances occurred over an eleven-month period and therefore were far too infrequent to alter the conditions under which Mendoza was required to perform her job. Cfi Sprague, 129 F.3d at 1366 (reasoning that five sexually-oriented incidents over sixteen months were sporadic).

To the extent Mendoza’s testimony about “constant” following and staring established the frequency factor, this evidence does not create a jury issue on Mendoza’s sexual-harassment claim. There is no allegation of any staring or following Mendoza outside the workplace or of any calling Mendoza after work. Regarding the workplace, Mendoza admits that Page never followed her in the office part of the plant where Mendoza worked, and thus necessarily spent most of her time.⁶ Indeed, Mendoza did not describe the following as walking close behind her in an intimidating or threatening fashion, but instead simply as Page’s showing up when Mendoza happened to be in the hallways, in the lunch room, or at the picnic table outside. In her testimony at trial, Mendoza never described Page’s following or staring as “stalking” or “leering” or “intimidating” or “threatening.” Similarly, none of Mendoza’s briefs regarding her Title VII claim before the panel or en banc characterizes Page’s following or staring as “stalking,” “leering,” “intimidating,” or “threatening.”⁷

Given normal office interaction among employees, the following and staring in the manner described by Mendoza are not the type of conduct that can render Mendoza’s claim actionable, even with evidence that the following and staring were “constant” and thus “frequent” under the Harris factors. Also, considering the following and staring described by Mendoza with and in the context of the sniffs, one verbal statement, and one slight touching as Page walked by the fax, we find Mendoza’s claim still falls far short of actionable hostile environment sexual harassment.⁸

Were we to conclude that the conduct established by Mendoza was sufficiently severe or pervasive to alter her terms or conditions of employment, we would establish a baseline of actionable conduct that is far below that established by other circuits. For example, in Baskerville v. Culligan International Co., the Seventh Circuit considered a sexual harassment-claim consisting of nine instances of sexually-graphic behavior by the alleged harasser over a period of seven months. 50 F.3d 428, 430 (7th Cir.1995). These instances included diminutive references to the plaintiff as a “pretty girl” and a “tilly” and one particularly obscene instance in which the alleged harasser simulated the act of masturbation. Id. The Seventh Circuit acknowledged the obvious offensiveness and vulgarity of this conduct, but nonetheless concluded that these events could not “reasonably be thought to add up to sexual harassment.” Id. The Seventh Circuit expressly held that “[w]e conclude that no reasonable jury could find that Hall’s remarks created a hostile working environment.” Id. at 431.⁹ Likewise, in Shepherd, the plaintiff produced evidence of several fairly serious instances of harassment including: (1) the statement “your elbows are the same color as your nipples”; (2) the statement “you have big thighs”; (3) attempts to look down the plaintiffs clothing; and (4) multiple instances of touching. 168 F.3d at 872. Similar to the Seventh Circuit’s reasoning in Baskerville, the Fifth Circuit in Shepherd noted that the conduct was “boorish and offensive.” Id. at 874. The Court, however, specifically found that the conduct was not severe, threatening, or an impediment to job performance and therefore concluded that the plaintiff could not establish a hostile-environment claim. Id. at 874-75. Although we need not endorse or adopt the conclusions in Baskerville, Shepherd, or the other cases cited herein, these decisions illustrate that conduct that is much more severe and pervasive than the conduct shown by Mendoza has been found insufficient as a matter of law to sustain hostile-environment claims.¹⁰

V. Conclusion

For the foregoing reasons, we conclude that the district court did not err in granting Borden judgment as a matter of law on Mendoza’s sexual-harassment claim under Title VII. We agree with the panel’s decision in this case that the district court properly granted summary judgment and judgment as a matter of law on Mendoza’s other claims. Therefore, we affirm the district court’s entry of judgment in favor of Borden on Mendoza’s claims for age discrimination, disability discrimination, retaliation, and Mendoza’s state-law claims. The judgment of the district court is

AFFIRMED.

1

. All judges concur in the majority opinion’s disposition of Mendoza’s claims for age and disability discrimination, retaliation, and under state law. The opinion for the Court on her sexual harassment claim is joined in full by Chief Judge Anderson and Judges Edmondson, Cox, Dubina, Black, and Carnes. Regarding her sexual harassment claim, Judges Edmondson and Carnes also file separate concurring opinions; Judge Tjoflat files a dissenting opinion, in which Judges Birch, Barkett, and Marcus join; Judge Barkett files a dissenting opinion, in which Judge Birch joins.

2

. The jury trial began with opening statements at 1:13 P.M. on May 13 and concluded on May 14 by 10:15 A.M. Mendoza’s entire testimony covers seventy-nine pages, but her direct and cross examination about Page's harassing conduct totals twenty-four pages. Since her testimony is fairly brief, we are able to quote her exact descriptions of Page’s conduct in order to assure full consideration of Mendoza’s allegations cumulatively and in context. Besides Mendoza, only one other witness testified at trial. Jenny Voltapelti, who is married to Mendoza's dentist, testified that during several dental appointments, Mendoza related to her that she was being sexually harassed at work. Voltapelti did not recall the details that Mendoza related.

3

. Although Page never used vulgar language with her, Mendoza did testify that other workers did. The example Mendoza gave was Ms. Diaz's being in the habit of sharing with Ms. Murphy her sexual plans with her husband.

4

. Regarding this fifth factor, the Supreme Court held recently that in claims based on a supervisor’s harassment, an employer may be vicariously liable for actionable hostile environment discrimination caused by a supervisor with immediate (or successively higher) authority over the employee—subject to an affirmative defense. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998).

5

. To establish that the harm alleged was “based on her sex,” Mendoza "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). The purpose of Title VII is to strike at the disparate treatment of men and women. See Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Mendoza never claimed, and never produced any direct evidence, that Page treated women employees differently from male employees. Instead, Mendoza sought to establish discrimination "based on sex” circumstantially by claiming Page's conduct amounted to sexual advances towards her. Thus, we discuss whether Page’s conduct was sexual in nature.

6

. Mendoza says she never went into the processing plant which constituted the majority of the Miami facility.

7

. The initial panel opinion does not either. Mendoza v. Borden, Inc., 158 F.3d 1171 (11th Cir.1998), vacated, 169 F.3d 1378 (11th Cir.1999). The first and only time "stalking” in connection with Mendoza’s Title VII claim appears in this case are the dissents filed at the en banc stage.

8

. Judge Tjoflat’s dissent cites seven decisions involving following and/or staring. However, each case involves additional conduct that is far more egregious than what Mendoza alleges, and those cases in the dissent, if anything, highlight the insufficiency of Mendoza’s evidence. For example, the dissent notes that Cross v. Alabama Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1495-97 (11th Cir.1995), involved "glaring looks, piercing looks.” However, that case also had seven female plaintiffs' testifying that the harasser treated his women employees differently than men. According to the plaintiffs, the harasser threw objects at the women daily, yelled, screamed and belittled them, and engaged in name calling, derogatory remarks, verbal abuse, finger pointing, and offensive touching with women, but never engaged in this conduct with his male employees. The harasser's manner of communicating with female employees was described as "extremely hostile, very angry, very aggressive" and "demeaning" but as "very professional" with male employees. The harasser's derogatory comments to women included "women belonged barefoot and pregnant,” "fat butt,” "a butt head," "a cow," "rather dumb,” "stupid,” and "just a woman.” The harasser told "sexual and dirty jokes,” and said, "I guess women are taking over things” and made comments that mistakes would not happen if males were in the position of decision making. The harasser had an affair with a female employee who testified that he described women as less intelligent than men and said they "cause a lot of trouble, and the facility would be better off with men than women.”

The other staring and following cases cited in Judge Tjoilat's dissent also involve egregious conduct that is missing here. Westvaco Corp. v. United Paperworkers Intern., 171 F.3d 971, 972-73 (4th Cir.1999) (going into plaintiff's office and staring but accompanied by calling her at home; leaving messages with heavy breathing, panting, and "love you, baby”; addressing her as "foxy mama” and "foxy lady” for a year; asking for a kiss and, when she refused, saying “I am serious, I want some tongue”); Stoll v. Runyon, 165 F.3d 1238, 1239 (9th Cir.1999) ("stalking” is alleged but the court also described the "gruesome facts” as "[njumerous male coworkers and supervisors asked [plaintiff] to perform oral sex on them, commented on her body, shot rubber bands at her backside, asked her to wear lacy black underwear for them, bumped and rubbed against her from behind, pressed their erect penises into her back while she was sorting mail and unable to get away, followed her into the women's bathroom, asked her to go on vacations, 'stalked her throughout the postal facility,’ and fondled her body”); Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 570-74 (8th Cir.1997) (involving Brewer’s "following her around the store” but also involving testimony that harassers Brewer and Mais treated their women employees differently than men, with these examples: Brewer made overt sexual remarks to plaintiff and comments on her body; Brewer smacked his lips with kissing noises at her; Mais kicked her legs when he walked by; Mais called her "mother fucker” and "lazy-son-of-a-bitch,” commented on her "tight-ass jeans,” used profanity with her; Brewer called her "damn dummy,” "stupid,” and "idiot” daily, and yelled at her for extended periods, telling her he wanted her to work on the ladder so he could see her "cute ass”; Brewer yelled and swore at other female employees; plaintiff complained to store manager about Brewer's "behavior, drinking and intimidation”; Mais gestured with a screwdriver toward plaintiff’s rear; and Mais and Brewer "directed harsh treatment, abusive language, and profanity at women, but not at men”); Yamaguchi v. U.S. Dep’t of the Air Force, 109 F.3d 1475, 1478 (9th Cir.1997) (alleging that harasser not only "stare[d] at her during work” but also made "inappropriate jokes and comments and sen[t] [plaintiff] unwanted notes, gifts and e-mail messages,” attempted to kiss her, made "sexual gestures and remarks about her body, perfume, and clothing and about other women in the workplace”; came to plaintiff's apartment and "allegedly tied her up, gagged her and raped her”); Harris v. L&L Wings, Inc., 132 F.3d 978, 980 (4th Cir.1997) (alleging the main harasser "followed her around the warehouse,” but also that he “grabbed [plaintiff], embraced her, stroked her hair, massaged her back and shoulders, fondled her legs,” “pinned [plaintiff] against a box and tried to kiss her,” persistently "boasts ... about his sexual prowess, offers to promote her in exchange for dating him, and another offer of a hundred dollars if [plaintiff] would go to bed with him,” "offered to reward [plaintiff's] son with a raise if he would convince his mother to go out with him,” "[ejveiy time [plaintiff] encountered [harasser], he would either touch her or make vulgar comments or sexual advances to her or both”); Hathaway v. Runyon, 132 F.3d 1214, 1217 (8th Cir.1997) (the harasser "stared at her with a menacing look,” but also was "getting physically close and making peculiar comments, telling [plaintiff] that other workers believed they were romantically involved,” making "physical sexual advances,” such as "he hit her on the buttocks with a clipboard,” and a week later "squeezed her buttocks”; plaintiff regularly had to interrupt her work in order to avoid encountering the harasser, and "[a]fter [plaintiff] rebuffed the [harasser's] advances, he began to snicker and laugh at her, making guttural noises when she walked by him”); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 780-81 (10th Cir.1995) (alleging "threatening and intimidating stares” but also that the harasser was "making verbal and written sexually offensive remarks propositioning [plaintiff] and attempting to touch her breast”; after plaintiff reported the harassment, he “grabbed [plaintiff] between her legs”; also made “persistent requests for sex [to two other females] and inquiries of their sexual conduct,” "open-ended invitations to all female employees to satisfy his sexual desires,” "passed a sexually explicit note” to another female employee, "attempted to kiss [another female employee] on the neck and brushed her breast with his hand”); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1461-63 (9th Cir.1994) (alleging "stares, glares, snickers, and comments," but along with “habitually refer[ring] to [plaintiff] and to other female employees in a derogatory fashion using sexual explicit and offensive terms,” such as calling plaintiff "dumb fucking broad,” "cunt,” and "fucking cunt”; also yelling "why don't you go in the restaurant and suck their dicks....”); Cortes v. Maxus Exploration Co., 977 F.2d 195, 197-98 (5th Cir.1992) (alleging supervisor "would follow her and wait in the hall until she returned” but along with "propositioning [plaintiff] seeking sexual favors,” "repeatedly asked [plaintiff] to have sexual relations with him, sometimes threatening to demote or fire her if she refused," "made lewd remarks about her body, told her vulgar jokes on a daily basis, showed her pornographic photographs, asked her to come to his house for 'training' after work hours,” "bragged about the size of his penis, and frequently brushed up against her legs and breasts,” and after plaintiff complained, the harasser "then began requiring that [plaintiff] ask his permission ... to go to the restroom” and “[w]henever she asked to go the restroom, [the harassser] would follow her and wait in the hall until she returned”).

The dissent's cases vividly demonstrate why Mendoza's hostile environment claim is not actionable and why holding that her claim is actionable would deviate significantly from the law of other circuits.

9

. In Baskerville, the Seventh Circuit made an alternative holding that in any event the plaintiff loses because the defendant company took all reasonable steps to protect plaintiff from Hall and was not vicariously liable. Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir.1995). However, the initial and primary holding was that Hall's conduct did not add up to actionable sexual harassment. Id. at 428-31. The Seventh Circuit also affirmed this Baskerville holding in Gleason v. Mesirow Financial Inc., 118 F.3d 1134 (7th Cir.1997). The Gleason, court stated, “We held in Baskerville [that Title VII] was ‘not designed to purge the workplace of vulgarity,’ for a certain amount of ‘vulgar banter, tinged with sexual innuendo’ is inevitable in the modern workplace. ...” Id. at 1144 (quoting from Baskerville, 50 F.3d at 430-31). The court continued, "Our specific holding in Baskerville was that plaintiff's supervisor had not engaged in actionable sexual harassment even though over a seven-month period, he was guilty of the following: (1) called the plaintiff a ‘pretty girl,' (2) made grunting sounds when the plaintiff wore a leather skirt, (3) said to the plaintiff that his office was not hot 'until you walked in here,' (4) stated that a public address announcement asking for everyone’s attention meant that 'all pretty girls [should] run around naked,’ and (5) alluded to his wife's absence from town and his loneliness, stating that he had only his pillow for company while making an obscene gesture.” Id. at 1144.

The court in Gleason reiterated that the "central teaching of the Baskerville opinion [is that] low-level harassment’ is not actionable — [this holding] was recently re-affirmed by another panel of this court in Galloway v. General Motors, 78 F.3d 1164, 1168 (7th Cir.1996). Thus, it is established in this circuit as of this date that there is a 'safe harbor for employers in cases in which the alleged harassing conduct is too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of sex.’ " Id.

10

. Sexual harassment in the workplace is a serious matter. However, beyond taking us out of step with the other circuits, holding that the conduct here constitutes sexual harassment actionable under Title VII would trivialize true instances of sexual harassment. See, e.g., Dees v. Johnson Controls World Services, Inc., 168 F.3d 417, 422 n. 12 (11th Cir.1999) (noting that "almost daily” abuse including sexual jokes, references to the plaintiff's body, and physical harassment established sexual harassment); Splunge v. Shoney's, Inc., 97 F.3d 488, 490 (11th Cir.1996) (reasoning evidence that the harassers "grabbed Plaintiffs, commented extensively on their physical attributes, showed them pornographic photos and videotapes, offered them money for sex, favored other employees who had affairs with them, speculated as to the plaintiffs’ sexual prowess, and so on” was sufficient to establish a hostile environment).

Both dissents cite decisions from other circuits which they contend found conduct as serious or less serious than Page’s sufficiently severe or pervasive to be actionable sexual harassment. However, when all alleged conduct in those decisions is accurately listed, these decisions, if anything, highlight the insufficiency of Mendoza’s evidence. Williams v. General Motors, 187 F.3d 553, 558-59 (6th Cir.1999) (these comments on different occasions: supervisor looked at plaintiff's breasts and said "You can rub up against me anytime”; supervisor said "You would kill me, [plaintiff's name],” "I don't know if I can handle it, but I'd die with a smile on my face”; as plaintiff bent over, "Back up; just back up,” or "You can back right up to me”; while placing his arm around her neck and his face against hers, said "You left the dick out of the hand”; co-worker used the "F-word,” "Hey slut,” "I'm sick and tired of these fucking women”; and plaintiff encountered "pranks” including finding office supplies glued to her desk, being hit by a thrown box, and being locked in her work area); Rone v. UPS, Inc., 151 F.3d 757, 761-62 (8th Cir.1998) (facts considered on the borderline of actionable harassment, but described as manager McFadden "often would tell [plaintiff] that she smelled good, pat her on the back, and brush up against her,” and "[t]his behavior continued throughout her employment with UPS”; he "was constantly 'coming on’ to her” and was "always flirty” and said "this was '0]ust the way he [was] with women' ”; “[r]ecognizing” McFadden’s telephone call to plaintiff's home — asking her to go swimming and if she "had heard rumors about a co-worker’s penis” and stating she "looked better in the UPS uniform than other women” — falls outside of 180-day period, but stating "we believe that, at the very least, McFadden’s comments suggest that his later behavior presents a jury question as to hostile environment”); Howard v. Burns Bros., Inc., 149 F.3d 835, 838-39 (8th Cir.1998) (co-employee "always saying sexual innuendos,” such as plaintiff "had nice legs and that he was 'going to get [her]' ”; he would "often brush against [plaintiff] intentionally while the two of them were working in the narrow area behind the fuel counter”; once he "brushed her buttocks and she kicked him”; he "said and did inappropriate things to other female employees”; another employee complained that he would "touch [her] butt or put his arm around [her]” or "talk nasty”; calling another employee a "fucking bitch”; other co-employees complained of two jokes "in which the punch line involved lewd gestures, in one instance, touching a woman’s breast, and in the other, thrusting his hips into a woman from behind”); Gallagher v. Delaney, 139 F.3d 338, 343-44 (2d Cir.1998) (supervisor told plaintiff "he had a dream that she kissed him”; three days later he gave her a potted plant; the next day, told her "the only place for her to sit was on his lap”; "invited her to lunch on numerous occasions”; then gave her more gifts, including jewelry, teddy bear, pink rose, angel book; sent her cards with handwritten notes that read "Believe me, you [sic] the last person on Earth I want to see hurt”; complimented her on her physical appearance; asked her personal questions; "told her she brought out feelings in him that he had not had since he was sixteen”; invited her to Atlantic City and asked her to keep her dance card free; gave her a Valentine's card with printed message, “But somehow it seems only right To say, today of all days, You’re someone close in thought and heart, Not ‘now and then,’ but always”); Barna v. City of Cleveland, Nos. 96-3971, 96-4178, 97-4138, 1998 WL 939884 (6th Cir.1998) (sexual harassment occurred on a daily basis and involved a constant stream of sexual propositions, comments, advances, characterizations and gestures, including asking plaintiff for oral sex; at one point harasser "grabbed her” and "squeezed so hard” that her breasts were "crushed,” while whispering "We’re friends, aren't we honey. I could take care of you”; harasser’s bragging about his sexual prowess to plaintiff); Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2d Cir.1989) (harasser "constantly touching [plaintiff] and attempting to bestow unasked for and unacceptable kisses upon her”); Smith v. Norwest Fin. Acceptance, Inc., 129 F.3d 1408, 1412-15 (10th Cir.1997) (six clearly sexual and severe disparaging remarks, such as plaintiff “would be the worst piece of ass that I ever had”; told plaintiff to "get a little this weekend” so she would "come back in a better mood”; she "would find a decent man if [she] just quit dating Mexicans”; she "must be a sad piece of ass” who “can't keep a man”; plaintiff was the only full time female employee in small office with supervisor harasser and three male co-employees, two of whom saw the conduct and testified that supervisor's conduct towards her was "sexually inappropriate,” "offensive,” and "intimidating”).