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Allen v. Ambu-Stat, LLC

Allen v. Ambu-Stat, LLC

United States Court of Appeals for the Eleventh Circuit

January 16, 2020, Decided

No. 18-10640

Opinion

 [*705]  PER CURIAM:

D'Marius Allen appeals from the district court's grant of final summary judgment, rejecting her Title VII claims of sexual harassment and retaliation against her former employer, Ambu-Stat, LLC. After careful review, and having heard oral argument, we conclude that no reasonable jury could have found in her favor on either claim. Accordingly, we affirm.

The relevant facts, construed, as they must be, in favor of Allen, the non-moving party, are these. Appellee Ambu-Stat, LLC ("Ambu-Stat") is a provider of ambulatory services, primarily focused on transporting patients to and from appointments. Ambu-Stat is co-owned by Rita Ortiz (51%) and her husband, Santos Ortiz (49%). Rita is the executive manager and handles day-to-day operations. Santos [**2]  "generally" does not intervene in daily matters, instead working in the field, but Allen stated he "maintains input" in company operations.

On April 17, 2015, Ambu-Stat hired Allen as an emergency medical technician. Allen claims sporadic sexual harassment during her time at Ambu-Stat, all of which we take as true. For starters, Allen says Santos made several comments about her appearance. On Allen's first day of work, Santos told her she was "really pretty." On another occasion, responding to Allen's comments about her own weight, Santos told Allen she was "fine as hell" and not to worry. Allen testified she was not offended by this comment. Santos also made comments about Allen's appearance that were more graphic: one time, Santos told Allen that she had a body like his ex-girlfriend, but better, with wider hips. And on another occasion, while moving a patient, Santos said, "[Y]ou got to watch that stuff on the table with that big old butt or you're going to knock it down trying to move her." Allen adds that Santos generally spoke with co-workers about how attractive he found Allen, although she does not provide any specific examples of these statements.

Allen also claims that Santos [**3]  made three crude sexual references. The first or second time Santos and Allen worked together, a song came on the radio containing the lyrics "eating booty like groceries." Santos asked Allen, "[D]oes your boyfriend eat that thang?" Allen replied that her boyfriend did not and did not know how to do so. Santos answered, "I could teach him." Another time, while working out at a gym, Allen recommended chocolate milk to help Santos with muscle soreness. A few hours later, Santos texted Allen that he loved chocolate milk, along with images of "tongue" emojis. This happened the same day as the comment Santos made about his ex-girlfriend. When working out together at the gym on another occasion, Santos pointed out Allen's groin area, which was wet with sweat, and commented, "Damn, that thing get wet like that!"

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799 Fed. Appx. 703 *; 2020 U.S. App. LEXIS 1450 **; 2020 WL 260261

D'MARIUS ALLEN, Plaintiff - Counter Defendant - Appellant, versus AMBU-STAT, LLC, Defendant - Counter Claimant - Appellee.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:16-cv-02848-ELR.

Allen v. Ambu-Stat, 2018 U.S. Dist. LEXIS 231758 (N.D. Ga., Jan. 31, 2018)

Disposition: AFFIRMED.

CORE TERMS

pervasive, sexual harassment, summary judgment, severe, harassment, comments, district court, abandoned, oral argument, sex, misconduct, boyfriend, sexual, apologies, unlawful employment practice, work environment, retaliation, accusation, touching, cases, conversation, hostile, prong, talk

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appeals, Summary Judgment Review, Standards of Review, Genuine Disputes, Materiality of Facts, Standards of Review, De Novo Review, Labor & Employment Law, Harassment, Sexual Harassment, Hostile Work Environment, Burdens of Proof, Employee Burdens of Proof, Standards of Proof, Pervasive & Severe Standards, Objective & Subjective Standards, Oral Arguments, Reviewability of Lower Court Decisions, Preservation for Review, Retaliation, Elements, Adverse Employment Actions, Discrimination, Burdens of Proof, Statutory Application, Title VII of the Civil Rights Act of 1964, Causation, Protected Activities, Title VII of the Civil Rights Act of 1964, Gender & Sex, Judgments, Motions for Summary Judgment, Constitutional Law, Bill of Rights, Fundamental Rights, Trial by Jury in Civil Actions