In Allen v. Ambu-Stat, LLC, No. 18-10640 (January 16, 2020), the U.S. Court of Appeals for the Eleventh Circuit affirmed a Georgia district court’s dismissal of a former employee’s sexual harassment claim and delivered a strong rebuke to a plaintiff seeking to temporarily enjoin the district court’s use of summary judgment in Title VII claims. The decision may provide guidance for employers as to what behavior constitutes pervasive harassment in the workplace.

The appeals court held that no reasonable jury could have found five crude or sexually charged comments made over a period of four months to have been pervasive harassment under the “severe or pervasive” standard of Title VII of the Civil Rights Act of 1964. It also held that the employee, who was discharged after some of the alleged comments were brought to the attention of a co-owner of the employer, had not engaged in “opposition” supporting a retaliation claim by discussing some of the conduct with her employer. Finally, the Eleventh Circuit waved off an argument by the plaintiff that the rates at which summary judgment is granted in the Northern District of Georgia could constitute a violation of the Seventh Amendment to the U.S. Constitution.


D’Marius Allen was an emergency medical technician employed by Ambu-Stat, LLC, which was co-owned by Rita Ortiz and her husband, Santos Ortiz. Rita primarily managed the business’s day-to-day activities and Santos primarily worked in the field. In her first three months of employment, Allen stated that Santos made several comments about her appearance, including the size of her hips and buttocks. Allen also alleged three crude sexual references by Santos, consisting of his asking about her sexual activity with her boyfriend, texting her “tongue” emojis, and referencing her groin.

About three months into Allen’s employment, Rita called Allen into a meeting in which Allen alleged that Rita accused her of having an affair and discussing her sex life with Santos. Allen denied any inappropriate actions or behavior and said that most conversations had been started by Santos. Rita warned her against discussing personal matters with Santos and a week later issued Allen a corrective action for having had an “inappropriate conversation” with Santos while on duty.

In response, Allen wrote a lengthy reply, detailing a sexually explicit conversation that she said had been started by Santos, but noting that she wasn’t attracted to him and didn’t want to “jeopardize [her] job or [their] marriage.” She further wrote:

“I enjoy working here & I’m in no place to be involved in any sexual harassment or marital issues that can easily be avoided. … I’m truly sorry if what I wear offended you or made you uncomfortable because those were not my intentions. … I don’t know what was really said about me or why it was said but just like you told me before, choose my battles wisely. I’m doing just that. I’m staying away from anyone or anything that can hinder my growth here.”

After receiving this note, Rita stated she found it “outlandish,” “disturbing,” and “full of lies,” and decided to terminate Allen’s employment. After the termination, Allen texted Rita to say that she believed that Santos’s comments constituted sexual harassment.

Allen sued Ambu-Stat for sexual harassment and retaliation, negligent hiring, intentional infliction of emotional distress, invasion of privacy, and ratification. The district court granted summary judgment to Ambu-Stat on Allen’s federal claims and refused to exercise supplemental jurisdiction over her state law claims. Allen appealed the decision.

The Eleventh Circuit’s Analysis

The viability of Allen’s sexual harassment claim centered on whether she could meet the fourth prong of the Eleventh Circuit’s five-part test: “that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” The court repeated its previous guidance that because “Title VII is not a civility code,” not all profane or sexual language or conduct will satisfy the test. Rather, the work environment must be “objectively and subjectively offensive,” and one that a “reasonable person would find hostile or abusive.” In analyzing the objective offensiveness of conduct, courts in the Eleventh Circuit examine the conduct’s frequency, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s job performance.

The court weighed Allen’s allegations against circuit precedent in which summary judgment had been granted for the employer. In one case, there had been 4 categories of conduct over 11 months, and in another, the alleged harasser had made multiple attempts at physical conduct with the plaintiff as well as frequent telephone calls outside of work, all over a period of 6 or 7 months.

It concluded that measured against this precedent, while “unsavory and unpleasant,” the five “sporadic comments, spread over four months,” were not “sufficiently pervasive.” The court noted that the comments appeared to have been said in a joking manner and that Allen admitted that she considered Santos to be a friend. The court noted that although there was no mathematic formula for what would constitute frequent conduct, even apparent frequency would not be determinative, because the underlying conduct would also have to be “sexual in nature and subject the plaintiff to ‘disadvantageous terms or conditions of employment to which members of the other sex were not exposed.’” After determining that the conduct in question was not “pervasive,” the court did not delve into whether Santos’s conduct could also be “severe” under the alternate prong of the “severe or pervasive” standard, finding that her counsel had abandoned that argument at oral argument.

The court also affirmed dismissal of Allen’s retaliation claim, finding that she had failed to engage in a statutorily protected activity prior to her discharge. Specifically, it found her communications with Rita about the sexually charged comments were not “in opposition to an unlawful employment practice.” In her conversation with Rita, the court held, Allen had merely discussed the conversations with Santos, bringing up no specific comments and downplaying the interactions in an effort to diffuse the situation and preserve her relationship with the Ortizes. As the court reasoned, her actions reflected “a rational and conscious decision not to act in opposition.” (Emphasis in the original.) As for the note that Allen wrote to Rita in response to the corrective action she had received, the court held that it was “unambiguously an extended apology, along with a promise from Allen that this type of incident would not happen again.” Therefore, the court held that no reasonable jury could have found that Allen’s comments at the meeting or her note to Rita constituted opposition to an unlawful employment practice.

Finally, the court stated that it was “wholly unconvinced” by Allen’s attack on the granting of summary judgment by judges in the Northern District of Georgia in Title VII cases. In her appeal, Allen had asked the Eleventh Circuit to enjoin all judges in that district from dismissing employment claims via summary judgment for two years. The court noted that the “constitutionality of summary judgment is settled law,” including for employment discrimination claims. The court also deemed the statistical evidence offered by Allen in an attempt to show a disparity in the granting of summary judgment by the Northern District of Georgia versus other districts “meaningless” and unsupported by any “expert opinion or testimony.”

“Although employment cases are both sensitive and difficult,” the court stated, “summary judgment remains a useful tool in an appropriate case where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Here, it concluded, the district court had properly granted summary judgment for the employer.

Key Takeaways

For employers in the Eleventh Circuit, the Ambu-Stat opinion offers an additional guidepost to evaluate what behavior constitutes unlawful “pervasive” harassment in the workplace. It also holds that merely discussing an incident with a decision-maker does not necessarily constitute “opposition” for the purposes of Title VII, depending on the context of the communication. Importantly, it enshrines the importance of the summary judgment procedure to employment discrimination litigation.


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