ALEXIS SOTO FERNANDEZ, Plaintiff - Appellant, versus TREES, INC., d.b.a. Trees Acquisition, Inc., Defendant - Appellee.
No. 18-12239
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(June 9, 2020)
D.C. Docket No. 2:16-cv-00841-SPC-MRM. [PUBLISH]. Appeal from the United States District Court for the Middle District of Florida.
Before JILL PRYOR, GRANT and ANDERSON, Circuit Judges.
Alexis Soto Fernandez, a former crew foreperson for Trees, Inc., appeals the district court‘s grant of summary judgment in Trees‘s favor on his hostile work environment and national origin discrimination claims under
I. BACKGROUND
A. Factual Background1
Trees, Inc. provides “utility line clearance and vegetation management for the utility industry,” including trimming and removing tree limbs near active power lines and utility poles for county and municipality utility companies. Doc.57-4 at 2.2 Given the dangerous nature of its work, Trees prioritizes
Fernandez, who is Cuban, worked for Trees from 2015 to 2016 as a crew foreperson. Fernandez‘s duties included “driving a company truck to job sites, operating the machinery used to trim trees, and trimming trees located along powerlines.” Id. at 3. Adam Soto supervised Fernandez and his crew, along with a larger team of employees. Soto‘s responsibilities included scheduling Fernandez for shifts and directly supervising Fernandez‘s regularly scheduled shifts.
About two months before Fernandez left his employment with Trees, Soto and another Cuban worker had a physical altercation. After this altercation, Soto began to make derogatory comments about Cubans to the workers he supervised, such as: “shitty Cubans;” “fucking Cubans;” and “crying, whining Cubans.” Doc. 57-1 at 17. Soto also declared, “new policy in the company, no more Cuban people.” Id. Fernandez testified that this type of behavior continued on a near-daily basis, and all the workers on site heard it. Fernandez‘s co-workers similarly testified that Soto repeatedly spoke disparagingly to the Cuban workers on a near-daily basis.
Fernandez expressed displeasure with the comments at a team meeting and asked Soto not to make general negative statements about Cubans, but instead to address any concerns with workers’ performance to those specific workers. Other workers also complained about Soto‘s conduct. Despite Fernandez‘s and his co-workers’ complaints, Soto‘s behavior continued.
B. Procedural Background
Fernandez filed this action against Trees in the United States District Court for the Middle District of Florida. He brought hostile work environment and national origin discrimination claims under
II. STANDARD OF REVIEW
We review de novo the district court‘s grant of summary judgment, construing the facts and drawing all reasonable inferences in favor of the nonmoving party. Jones v. UPS Ground Freight, 683 F.3d 1283, 1291-92 (11th Cir. 2012). Summary judgment is appropriate if the record gives rise to “no genuine dispute as to any material fact,” such that “the movant is entitled to judgment as a matter of law.”
III. DISCUSSION
Fernandez contends that Trees discriminated against him because of his national origin by (1) permitting a hostile work environment and (2) terminating him. We separately consider whether the district court erred in granting summary judgment for Trees on each claim.4
A. Hostile Work Environment Claim
To show that harassment was sufficiently severe or pervasive to alter the terms or conditions of his employment, an employee must prove that his work environment was both subjectively and objectively hostile. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc). Put differently, the employee must first establish that he “subjectively perceive[d] the environment to be abusive.” Harris, 510 U.S. at 21. He then must satisfy the objective component by showing that his work environment was one “that a reasonable person would find hostile or abusive.” Id. Trees does not dispute that Fernandez‘s work environment was subjectively hostile, so we move on to examine the objective prong.
Turning to the objective inquiry, we consider four factors when evaluating whether harassment was objectively hostile: “(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.” Mendoza, 195 F.3d at 1246. Although these factors help guide the inquiry, “the objective element is not subject to mathematical precision.” Bryant v. Jones, 575 F.3d 1281,1297 (11th Cir. 2009). We must view the evidence “cumulatively and in the totality of the circumstances.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc). When we do so here, we conclude that a reasonable jury could find the harassment objectively hostile.
Beginning with the first factor, Fernandez provided ample evidence that the harassment he faced was frequent—he testified that Soto made derogatory remarks, including phrases such as “shitty Cubans,” “fucking Cubans,” and “crying, whining Cubans” on a near-daily basis. Doc. 57-1 at 17. Fernandez‘s co-workers identified more than 10 specific examples of discriminatory remarks made during the relevant period. Even if these examples were the only discriminatory remarks Soto made during Fernandez‘s final two months of employment, this Court has held that harassment was pervasive when it occurred at a lower frequency. See Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (holding that harassment consisting of “roughly fifteen separate instances of harassment over the course of four months” was sufficiently pervasive).
Citing our unpublished decisions in Godoy v. Habersham County, 211 F. App‘x 850 (11th Cir. 2006), and Alexander v. Opelika City Schools, 352 F. App‘x 390 (11th Cir. 2009), Trees argues that the evidence showing that Soto‘s harassment occurred “every other day” or “nearly every day” was conclusory andcannot establish the requisite frequency for a hostile work environment claim because Fernandez
To illustrate, in Alexander, 352 F. App‘x at 393, the African American plaintiff testified that he was called “boy” “constantly,” but he could only recall eight such instances during a two-year period. Here, by contrast, Fernandez gave specific examples of Soto‘s disparagement of Fernandez and other Cuban workers—for instance, Soto described them as “crying, whining Cubans” and announced a “new policy” of “no more Cubans.” And he testified that such comments occurred daily or every other day over a two-month period. Fernandez‘s co-workers corroborated his testimony, identifying at least 10 specific instances of Soto‘s misconduct. This is materially different from Alexander‘s use of a vague term like “constantly” and identifying only eight specific incidents over two years. Thus, even if Alexander were binding authority, it is inapposite. As is Godoy, where “[o]ther than testifying that Lt. Garrett referred to him as ‘Brazilian bastard’ ‘several times,’ Plaintiff . . . failed to point to evidence that shows thefrequency of the allegedly harassing conduct.” Godoy v. Habersham Cty., No. 2:04-CV-211-RWS, 2006 WL 739369, at *10 (N.D. Ga. Mar. 21, 2006) (emphasis added) (footnote omitted), aff‘d, 211 F. App‘x 850 (11th Cir. 2006).5
As to the second factor, a reasonable jury could conclude that the harassment was sufficiently severe.
Our decision in Reeves is instructive. There, the female plaintiff‘s co-workers repeatedly used gender-specific derogatory terms in a generallyhumiliating, vulgar, and degrading way. See 594 F.3d at 811. We concluded that such conduct could support the reasonable inference that the harassment was sufficiently severe to give rise to a hostile work environment claim, even though the comments were not directed specifically to the plaintiff, because the offensive conduct was targeted at a protected class. See id. We also pointed to the fact that the harassment continued despite the plaintiff‘s complaints. See id. at 812.
Just as the comments in Reeves “allow[ed] for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and
Fernandez has also satisfied the third factor by demonstrating that Soto‘s conduct was sufficiently humiliating to support a hostile work environment claim.6
In Miller, we said that the fact that derogatory comments were made in the presence of co-workers enhances the level of humiliation suffered. 277 F.3d at 1277. Fernandez and his co-workers testified that Soto frequently degraded Cuban workers, including Fernandez, in meetings and in front of other teams of workers at job sites. Thus, Fernandez offered evidence that Soto‘s conduct was sufficiently humiliating to satisfy the third factor.7
Fernandez‘s evidence as to the fourth factor, interference with job performance, is weaker. The only evidence he offered on the fourth factor was that the stress from Soto‘s misconduct drove him to depression and caused him to attempt suicide at a job site. Although more attenuated than typical interference-with-job-performance arguments, we cannot say on this record that his on-the-job suicide attempt was wholly unrelated to his job performance. In fact, the incident led to his getting fired. Regardless, a lack of evidence of impact on jobperformance is not fatal: “The Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.” Miller, 277 F.3d at 1277. Fernandez‘s claim therefore does not fail simply because he provided somewhat attenuated evidence on the impact of the harassment on his job performance.
The Supreme Court has emphasized that “no single factor” is necessary to satisfy the objective inquiry of a hostile work environment claim. Harris, 510 U.S. at 23. Considering the totality of the circumstances, guided by the appropriate factors, we conclude that Fernandez provided evidence sufficient to
B. National Origin Discrimination Claim
For his national discrimination claim, Fernandez argues that Soto‘s comment, “new policy in the company: no more Cuban people,” was direct evidence of discrimination, and summary judgment was therefore inappropriate. We cannot agree.
Where a case of discrimination is proven by direct evidence, the burden shifts to the defendant to prove “by a preponderance of the evidence that the same decision would have been reached even absent the presence of the discriminatory motive.” Miles v. M.N.C. Corp., 750 F.2d 867, 875-76 (11th Cir. 1985). Direct evidence of discrimination is evidence that “reflects a discriminatory or retaliatoryattitude correlating to the discrimination or retaliation complained of by the employee” and, “if believed, proves the existence of a fact without inference or presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (alterations adopted) (internal quotation marks omitted). “[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Id. (internal quotation marks omitted). “If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence.” Id.
Fernandez contends that Soto‘s comment is direct evidence of discrimination because it “directly shows he no longer wants to have Cubans working at the company as a new company policy.” Appellant‘s Br. at 30. He compares this to the statement, “fire all the old people,” in Wheat v. Rogers & Willard, Inc., 271 F. Supp. 3d 1327, 1331 (S.D. Ala. 2017), in which a district court in this Circuit held that the statement was direct evidence of discriminatory intent to fire people precisely because of their age. Soto‘s statement, however, falls short of this standard.
Here is why: Soto‘s statement “new policy in the company: no more Cuban people” might provide direct evidence for a failure-to-hire claim, but that is not so for Fernandez‘s firing claim. To prove that Trees terminated Fernandez because of national origin discrimination, Soto‘s statement requires an inference—that Soto‘s“new policy” extended beyond hiring “no more Cuban people,” but also to firing those Cubans who were already there. Thus, the statement is circumstantial rather than direct. See Wilson, 376 F.3d at 1086. In similar instances, this Court has declined to classify comments about one employment context as direct evidence of discrimination in another context. See, e.g., Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999) (holding that the decisionmaker‘s comment that “the company needed . . . young men . . . to be promoted” did not constitute direct evidence of age discrimination for a termination claim).
Soto‘s statement—although reprehensible—is not direct evidence that Fernandez was fired because of his national origin. And because Fernandez relies solely on his direct evidence argument to challenge the district court‘s grant of summary judgment on this claim, he has failed to establish that summary judgment was inappropriate.
IV. CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part. We affirm the district court‘s grant of summary judgment for Trees on Fernandez‘s national
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.