Case: 18-15305 Date Filed: 07/11/2019 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15305
Non-Argument Calendar
________________________
D.C. Docket No. 0:18-cv-60209-WPD
JAMIE ORTIZ,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 11, 2019)
Before MARCUS, ROSENBAUM, and HULL, Circuit Judges.
PER CURIAM:
Plaintiff Jamie Ortiz sued his employer, the School Board of Broward County,
Florida (“School Board”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Case: 18-15305 Date Filed: 07/11/2019 Page: 2 of 17
§ 2000e-2(a)(1). Ortiz alleged that he was subjected to a hostile work environment
and suspended without pay for five days based on his ethnicity and national origin
(Hispanic/Puerto Rican). The district court granted summary judgment in favor of
the School Board, and Ortiz appealed. After careful review, we vacate the grant of
summary judgment in part because we conclude that Ortiz presented sufficient
evidence that his work environment was objectively hostile. We affirm the grant of
summary judgment as to the remaining claim.
I.
Ortiz has worked for the School Board since 2000 in several capacities. From
2009 until late 2017, he worked as an auto mechanic in the central district garage
under Michael Kriegel, his supervisor. To supplement his income, Ortiz also worked
occasionally as an activity-bus driver—transporting students to and from after-
school activities—from 2008 to 2014. Ortiz was working for the School Board as a
carpenter as of January 2018.
Ortiz’s claims against the School Board are twofold. First, he says that the
School Board discriminated against him based on national origin when it suspended
him without pay for five days in or around February 2014. The suspension stems
from August 2013, when the School Board notified Ortiz that he was no longer
eligible to work as an activity bus driver because he did not meet the requirements
of the School Board’s “Safe Driver’s Plan.” Ortiz checked his license records and
2
Case: 18-15305 Date Filed: 07/11/2019 Page: 3 of 17
determined that his license was still valid, so he continued to work as an activity bus
driver despite receiving this notice. After the School Board learned that Ortiz had
disregarded its notice, it suspended him for five days without pay.
Ortiz’s second claim is that he was subjected to a hostile work environment
under Kriegel, his supervisor at the central district garage. This claim is based
primarily on alleged offensive comments and harassment by Kriegel from 2012
through September 2014, when Ortiz filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”).
Ortiz testified that Kriegel began harassing him as early as 2008, but the
harassment intensified beginning in 2013. From then until September 2014, Kriegel
made offensive comments and jokes every day about Puerto Ricans, Muslims, and
black people. Kriegel made remarks like, “I’m around too many Puerto Ricans, I
better carry my gun with me”; “we need to lock our toolboxes because we’re hiring
too many Puerto Ricans”; “this New York Puerto Rican is on me”; “Puerto Ricans
like to do their own thing, they don’t follow orders”; and “it ain’t right you Puerto
Ricans are making more money than me.” Kriegel never used Ortiz’s name and
instead called him “Puerto Rican.” Kriegel also used the ethnic slur “spic” “several
times.”
In addition to these comments, Ortiz testified about being harassed on the job
by Kriegel. Ortiz stated that Kriegel harassed him “every day on any type of work
3
Case: 18-15305 Date Filed: 07/11/2019 Page: 4 of 17
order.” Kriegel would wait for him to finish his bus route and say things like, “your
Puerto Rican ass think you can do whatever you want to do.” Another time, Kriegel
criticized Ortiz for using a certain bus and stated that he was “going to write your
Puerto Rican ass up.” Ortiz objected to these and other comments, but Kriegel did
not stop. In December 2013, Kriegel accused Ortiz of falsifying maintenance
records, which Ortiz denies. The allegations were eventually dismissed, though
Ortiz was transferred pending the investigation. A few months later, Ortiz was in an
office with Kriegel and Kriegel’s supervisor, Tony Welsh, when Welsh told Ortiz
that he had just “got rid of a dirty Puerto Rican” and that Ortiz was “next.”
Ortiz’s testimony was largely confirmed by several of his coworkers.
According to these coworkers, Kriegel used the terms “spic,” “lazy spic,” “knock-
kneed spic,” “dumb spic,” and “wetback,” either specifically about Ortiz or about
Hispanic people more generally. Kriegel also made other discriminatory comments,
including “here comes the Puerto Rican gang, I need to call the cops”; “the damn
Puerto Rican again, I’ve got to go see what this freakin’ Puerto Rican is doing,
they’re all the same”; “I would rather have, you know, three more of these guys than
a smelly Puerto Rican in here”; “spics come over here and they want to eat up all the
benefits”; and “had a lot of niggers and spics apply, and we won’t need no more of
them here.” A small group of employees used similar terms openly on the workroom
floor. The coworkers reported the frequency of these comments as anywhere from
4
Case: 18-15305 Date Filed: 07/11/2019 Page: 5 of 17
every day to every few months. One coworker stated that he heard Kriegel make
discriminatory comments about people of Hispanic origin on a daily basis.
According to the coworkers, Ortiz was present for some of these
discriminatory comments, but not all of them. One coworker reported hearing
Kriegel make discriminatory comments in Ortiz’s presence three to five times,
though he was unsure if Kriegel had used the term “spic” in Ortiz’s presence.
Another stated that Ortiz may have been in earshot when Kriegel joked about calling
the cops on a “Puerto Rican gang.” Others were unsure if Ortiz was present or did
not believe Ortiz was present when they heard Kriegel make disparaging comments.
At least two coworkers stated that Kriegel made the comments described above
openly on the workroom floor, where Ortiz easily could have heard.
Further, Ortiz spoke with at least two coworkers about Kriegel’s comments
and harassment. One of these coworkers, Robert Wetzel, testified that he
accompanied Ortiz to complain to management about Kriegel’s “racist remarks.” In
that meeting, Ortiz specifically complained about Kriegel’s calling him “spic” and
saying that Hispanics were lazy.
In addition to pushing back against Kriegel, Ortiz complained several times
to management about Kriegel’s comments and actions. Twice when Ortiz
complained, the director of transportation stated that he would take care of it, but
little changed over the long term. Another time when Ortiz complained, joined by
5
Case: 18-15305 Date Filed: 07/11/2019 Page: 6 of 17
Wetzel, the director told Ortiz that Kriegel “had a vendetta against [him].” The
director stated that he would take care of it, but he told Ortiz, “Jaime, please, don’t
go any further than this.” Ortiz did not file a formal internal complaint against
Kriegel, though he was not aware of the policy for filing written complaints.
II.
The district court granted summary judgment in favor of the School Board.
First, it found that Ortiz had not met his burden to show that the School Board’s
legitimate, nondiscriminatory reason for suspending Ortiz—insubordination for
continuing to drive a school bus after being told to stop—was pretextual. Second, it
found that Kriegel’s remarks about Ortiz’s ethnicity or national origin were not
frequent, severe, or threatening and did not affect Ortiz’s job performance. Ortiz
appeals both rulings.
III.
We review de novo a district court’s grant of summary judgment, viewing the
evidence and drawing all reasonable inferences in favor of the nonmoving party.
Adams v. Austal, U.S.A., L.L.C.,
754 F.3d 1240, 1248 (11th Cir. 2014). Summary
judgment is appropriate only when there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Id.
Title VII makes it unlawful for employers to discriminate against an employee
on the basis of race or national origin, among other protected characteristics. 42
6
Case: 18-15305 Date Filed: 07/11/2019 Page: 7 of 17
U.S.C. § 2000e-2(a)(1). A claim under this statutory section is referred to as a
“disparate treatment” claim. Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d
798, 807 (11th Cir. 2010) (en banc). Disparate treatment claims take two forms:
(1) “a tangible employment action, such as a firing or demotion” or (2) “a hostile
work environment that changes the terms and conditions of employment, even
though the employee is not discharged, demoted, or reassigned.”
Id. (quotation
marks omitted). Ortiz proceeded in this case under both theories of disparate
treatment, which we address separately below.
A.
We begin with Ortiz’s claim that he was discriminated against when the
School Board suspended him for five days without pay. Because Ortiz’s claim is
based on circumstantial evidence, we apply the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Flowers v.
Troup Cty., Ga., Sch. Dist.,
803 F.3d 1327, 1333 (11th Cir. 2015).
Under McDonnell Douglas, if the plaintiff presents a prima facie case of
discrimination, and the defendant responds with a legitimate, non-discriminatory
reason for the employment decision, the plaintiff must then show that the
defendant’s reason was pretext for discrimination. Alvarez v. Royal Atl. Developers,
Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010). The pretext analysis concerns only
7
Case: 18-15305 Date Filed: 07/11/2019 Page: 8 of 17
whether the employer’s reason was motivated by discriminatory animus, not
whether the decision was wise, prudent, or fair.
Id. at 1266.
Here, the district court properly granted summary judgment on Ortiz’s claim
of discrimination based on his five-day suspension without pay. Ortiz has offered
no evidence to contradict the School Board’s contention that it suspended him
because he drove a school bus after being told he was ineligible to do so. He claims
that the School Board’s reason was false because he had no points on his driver’s
license in the eyes of the state. But undisputed evidence reflects that the School
Board calculated points differently than the state, and Ortiz has not shown that he
was eligible under the School Board’s policy. In any case, Ortiz concedes that he
continued to drive buses after he was told he was ineligible to do so. So even if he’s
right about the points as a factual matter, he still disregarded the notice that he was
not eligible to drive, which is a legitimate, non-discriminatory reason to impose the
suspension. Accordingly, summary judgment was proper on this claim.
B.
As to Ortiz’s claim of a hostile work environment, however, we conclude that
summary judgment was not appropriate. Construing the record and drawing all
reasonable inferences in Ortiz’s favor, we must conclude that a reasonable jury could
return a verdict for Ortiz.
8
Case: 18-15305 Date Filed: 07/11/2019 Page: 9 of 17
To prove a hostile work environment in violation of Title VII, the 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.” Harris v.
Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citations and quotation marks omitted).
The requirement that the harassment be “severe or pervasive” contains an
objective and a subjective component. Miller v. Kenworth of Dothan, Inc.,
277 F.3d
1269, 1276 (11th Cir. 2002). “Thus, to be actionable, this behavior must result in
both an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives to be abusive.”
Id. (quotation
marks and ellipsis omitted). There is no dispute that Ortiz subjectively perceived
the environment to be abusive, so we address the objective component only.
“In evaluating the objective severity of the harassment, we consider, among
other factors: (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. “Although these factors help guide the inquiry, the objective
element is not subject to mathematical precision.” Smelter v. S. Home Care Servs.
Inc.,
904 F.3d 1276, 1285 (11th Cir. 2018) (quotation marks omitted). We evaluate
the factors in context and under the totality of the circumstances, and a weak or
9
Case: 18-15305 Date Filed: 07/11/2019 Page: 10 of 17
insubstantial showing with regard to one factor is not necessarily fatal to a plaintiff’s
claim. Miller,
277 F.3d at 1276–77; see Smelter, 904 F.3d at 1286–87 (“[T]he
Supreme Court has made clear that no single factor is required to establish the
objective component.” (quotation marks omitted)).
In this evaluation, we must bear in mind that “Title VII is not a federal civility
code.” Mendoza v. Borden, Inc.,
195 F.3d 1238, 1245 (11th Cir. 1999) (en banc)
(quotation marks omitted). To be actionable, the conduct must be serious enough to
alter to the terms and conditions of employment. Faragher v. City of Boca Raton,
524 U.S. 775, 786–87 (1998). Evidence of “simple teasing, offhand comments, and
isolated incidents (unless extremely serious)” is insufficient.
Id. at 787 (citation and
quotation marks omitted). So too is “the sporadic use of abusive language” or other
ordinary incidents of the workplace.
Id. at 788 (quotation marks omitted).
Nevertheless, because we look to the totality of the circumstances, we must
“examine the conduct in context, not as isolated acts.” Mendoza,
195 F.3d at 1246.
Here, a reasonable jury could conclude that Ortiz’s workplace was objectively
hostile to a reasonable person in his position. First, for nearly a two-year period
preceding Ortiz’s EEOC charge, the frequency of the harassment was daily or near
daily. Ortiz reported that, from the beginning of 2013 through September of 2014,
10
Case: 18-15305 Date Filed: 07/11/2019 Page: 11 of 17
Kriegel made offensive comments and jokes every day about Puerto Ricans.1
Likewise, one of Ortiz’s coworkers stated that he heard discriminatory comments by
Kriegel about people of Hispanic origin on a daily basis during the same time period.
Other coworkers reporting hearing discriminatory comments on a less frequent but
still regular basis. This evidence is not consistent with the type of “isolated” or
“sporadic” conduct that is insufficient to meet Title VII’s threshold. Rather, it
reflects a work environment “permeated with discriminatory intimidation, ridicule,
and insult.” See Harris,
510 U.S. at 21.
Second, a reasonable jury could find that the harassment was severe.
Unambiguously ethnic slurs like “spic” and “wetback” surely fall on the more severe
end of the spectrum of comments. See Cerros v. Steel Techs., Inc.,
398 F.3d 944,
950–51 (7th Cir. 2005) (stating that it was “difficult to imagine epithets more
offensive to someone of Hispanic descent” than “spic” and “wetback”); cf. Miller,
277 F.3d at 1276–77 (finding sufficient evidence of a hostile work environment
based on use of similar slurs). That it was Ortiz’s direct supervisor making these
comments compounds their severity. See Adams v. Austal, U.S.A., L.L.C.,
754 F.3d
1
The School Board claims that Ortiz did not properly raise this fact (or others) at summary
judgment because his response to the School Board’s statement of material facts was deficient.
But the district court did not make any clear ruling in this regard. While it noted that Ortiz’s
response was deficient under the local rules, it appears to have nonetheless considered the facts set
forth in Ortiz’s response and supporting materials. Accordingly, we consider the entire record that
was before the court at summary judgment.
11
Case: 18-15305 Date Filed: 07/11/2019 Page: 12 of 17
1240, 1251–57 (11th Cir. 2014) (distinguishing between conduct by supervisors and
conduct by coworkers).
We acknowledge that Ortiz’s testimony is vague as to the number of times he
heard Kriegel use the ethnic slur “spic,” stating only that it was “several times.” It’s
also unclear whether Kriegel called Ortiz “spic” to his face or simply used the term
in his presence, which we have indicated may be relevant in evaluating severity. See
id. (distinguishing between employees who merely overhead a racial slur and
employees at whom it was directed).
But there is no “‘magic number’ of racial or ethnic insults” that a plaintiff
must prove. Miller,
277 F.3d at 1276. And we look to the totality of the
circumstances in evaluating the objective severity of a work environment. When we
do so, we see that the ethnic slurs merely punctuated Kriegel’s daily derogation of
Puerto Ricans and people of Hispanic descent, from belittling Ortiz by refusing to
call him by his name to implying that Puerto Ricans were untrustworthy, lazy, and
undeserving. Cf. Smelter, 904 F.3d at 1286 (noting, when evaluating severity, that
a coworker’s use of a racial slur “was not an isolated instance—it came at the end of
two months during which [the plaintiff] had endured racist comments on a daily
basis”). There is also evidence that Kriegel may have called Ortiz “spic” behind his
back, if not to his face. Other coworkers made clear that Kriegel referred to Ortiz as
“dumb spic” and “knock-kneed spic.” Even assuming these slurs were not made in
12
Case: 18-15305 Date Filed: 07/11/2019 Page: 13 of 17
Ortiz’s presence, there is enough evidence in the record for a reasonable jury to
conclude that Ortiz knew Kriegel was saying things of this sort behind his back. See
Torres v. Pisano,
116 F.3d 625, 633 (2d Cir. 1997) (“[A]n employee who knows that
her boss is saying things of this sort behind her back may reasonably find her
working environment hostile.”); cf. Adams, 754 F.3d at 1250 (“Courts conduct the
objective assessment from the perspective of a reasonable person in the plaintiff’s
position, knowing what the plaintiff knew.”). For instance, Wetzel testified that he
accompanied Ortiz when Ortiz complained to management about Kriegel’s “racist
remarks” and references to him as “spic.”
Third, a reasonable jury could find that the harassment was objectively
humiliating. According to Ortiz, Kriegel used ethnic slurs, regularly made
comments implying that Puerto Ricans were untrustworthy, lazy, and undeserving,
and harassed him “every day on any type of work order.” Not only that, but Kriegel
never called Ortiz by his name and instead referred to him simply as “Puerto Rican,”
suggesting that Ortiz was not worthy of individual dignity or respect and was no
different than the stereotype of Puerto Ricans reflected in Kriegel’s comments. A
reasonable person in Ortiz’s position could view these comments and this conduct
as demeaning and humiliating.
Finally, Ortiz’s evidence as to the fourth factor—whether the harassment
interfered with Ortiz’s job duties—is weak. Ortiz and his coworkers testified that
13
Case: 18-15305 Date Filed: 07/11/2019 Page: 14 of 17
Kriegel targeted Ortiz for harassment, but there is little to show that it impacted his
job performance. In any case, Ortiz’s “claim does not fail simply because [he]
provided little or no evidence [of] the impact of the harassment on [his] job
performance.” Smelter, 904 F.3d at 1287. Considering the totality of the
circumstances, particularly the frequency and severity of the harassment, we
conclude that Ortiz provided sufficient evidence for a reasonable jury to find that the
harassment was objectively severe or pervasive.
C.
As an alternative ground for affirmance, the School Board contends that it
proved its entitlement to the affirmative defense established by the Supreme Court
in Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998), and Faragher v. City
of Boca Raton,
524 U.S. 775 (1998). The district court did not reach this issue, but
we may affirm the judgment on any ground supported by the record. Evans v. Ga.
Reg’l Hosp.,
850 F.3d 1248, 1253 (11th Cir. 2017).
Under Ellerth/Faragher, when a supervisor creates a hostile work
environment that does not culminate in a tangible employment action, as is the case
here, the “employer may raise an affirmative defense to liability or damages, subject
to proof by a preponderance of the evidence.” Ellerth, 524 U.S. at 765. “The defense
comprises two necessary elements: (a) that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, and (b) that the
14
Case: 18-15305 Date Filed: 07/11/2019 Page: 15 of 17
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.” Id.
“Both elements must be satisfied for the defendant-employer to avoid liability, and
the defendant bears the burden of proof on both elements.” Frederick v.
Sprint/United Mgmt. Co.,
246 F.3d 1305, 1313 (11th Cir. 2001).
The School Board maintains that it met both elements through undisputed
evidence. It says that it has a non-discrimination policy that sets forth a complaint
procedure for employees to report any alleged discrimination or harassment to the
School Board’s Equal Educational Opportunities (“EEO”) Department. It asserts
that Ortiz received a copy of this policy as part of the Employee Handbook, which
he acknowledged receiving in November 2001. And it maintains that Ortiz
unreasonably failed to utilize this procedure before filing a charge of discrimination
with the EEOC.
We conclude that, on the current record, this defense is a matter properly for
the jury, however. See Frederick,
246 F.3d at 1314 (concluding that triable factual
issues precluded granting summary judgment based on an Ellerth/Faragher
defense). In particular, we find a genuine issue of material fact as to whether the
School Board took reasonable steps to effectively disseminate its non-discrimination
policies and the complaint procedure. See Madray v. Publix Supermarkets, Inc.,
208
F.3d 1290, 1298 (11th Cir. 2000) (“[D]issemination of an employer’s anti-
15
Case: 18-15305 Date Filed: 07/11/2019 Page: 16 of 17
harassment policy [is] fundamental to meeting the requirement for exercising
reasonable care in preventing sexual harassment.”). Ortiz testified that he had not
heard of the School Board’s EEO office, that he was not aware of the internal policy
for filing a written complaint, and that he had never read the non-discrimination
policy. Along similar lines, one of Ortiz’s coworkers, Robert Wetzel, testified that
he was unfamiliar with the policy despite having worked for the School Board for
over 24 years.
In this regard, the School Board’s evidence that Ortiz received a copy of the
Employee Handbook, which it says contained the non-discrimination policy, is
insufficient. Ortiz may have received a copy of the Handbook in 2001, but the only
part of the Handbook in the record is a cover page. And we cannot simply assume
that the “Nondiscrimination Policy Statement” offered as evidence by the School
Board is contained verbatim in the Handbook. The policy itself reflects that it was
amended in March of 2011, well after Ortiz received a copy of the Handbook. Nor
can we tell with any specificity, based on the current record, what the complaint
procedure actually required.
For these reasons, we conclude that summary judgment is not appropriate on
this record on the School Board’s Ellerth/Faragher defense. We therefore decline
to affirm on this alternative ground.
16
Case: 18-15305 Date Filed: 07/11/2019 Page: 17 of 17
IV.
In sum, we affirm the district court’s grant of summary judgment in favor of
the School Board related to Ortiz’s suspension without pay. We vacate and remand
for further proceedings on Ortiz’s claim of a hostile work environment.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
17
