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                                                                              [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-12239
                           ________________________

                    D.C. Docket No. 2:16-cv-00841-SPC-MRM



ALEXIS SOTO FERNANDEZ,

                                                     Plaintiff - Appellant,

versus

TREES, INC.,
d.b.a. Trees Acquisition, Inc.,

                                                     Defendant - Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                    (June 9, 2020)

Before JILL PRYOR, GRANT and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:
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       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 Title VII of the Civil

Rights Act of 1964 (“Title VII”) and the Florida Civil Rights Act (“FCRA”). After

careful review, and with the benefit of oral argument, we affirm in part and reverse

in part. We agree with the district court that Fernandez’s national origin

discrimination claim fails as a matter of law because he failed to establish a prima

facie case for this claim. But we disagree with the district court’s conclusions that,

as a matter of law, the harassment Fernandez suffered was not severe or pervasive.

We therefore reverse the grant of summary judgment for Trees on Fernandez’s

hostile work environment claim and remand that claim to the district court for

further proceedings.

                                   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.



       1
          On review of an order granting a defendant’s motion for summary judgment, we view
the facts in the light most favorable to the plaintiff. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th
Cir. 2002). In recounting the facts here, we note where facts are disputed and at this stage
resolve the disputes in Fernandez’s favor.

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57-4 at 2.2 Given the dangerous nature of its work, Trees prioritizes employee

safety; employees know that safety violations can be cause for immediate

termination.

      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.




      2
          “Doc. #” refers to the numbered entry on the district court’s docket.

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       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.

       About two months after the initial altercation between Soto and Fernandez’s

co-worker, Fernandez attempted to commit suicide at the job site by dousing

himself with gasoline and reaching for a lighter; a coworker tackled him before he

succeeded. Fernandez was terminated. 3 After Fernandez left Trees, some

employees signed a statement attesting that there was no discrimination at Trees.

At least one said he signed only so that he would not lose his job.

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 Title VII and the FCRA. Trees moved

for summary judgment on both claims, arguing that Soto’s alleged misconduct was

neither severe nor pervasive and that Fernandez failed to establish a prima facie




       3
         The parties dispute whether Fernandez was fired or quit. For this appeal only, Trees
agrees to treat Fernandez as having been terminated.

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case of national origin discrimination. The district court agreed, granting Trees’s

motion. This appeal followed.

                           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.” Fed. R. Civ. P. 56(a). A genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

                                   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



       4
        Fernandez’s state law claims require no separate discussion because the FCRA is
modeled after Title VII, and we use the same framework to analyze claims under it. Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010) (“Because the FCRA is
modeled after Title VII, and claims brought under it are analyzed under the same framework, the


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A.     Hostile Work Environment Claim

       Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating “against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). A hostile work

environment claim under Title VII requires proof 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)

(internal quotation marks and citation omitted).

       To establish a hostile work environment claim, a plaintiff must show that:

(1) he belongs to a protected group; (2) he suffered unwelcome harassment; (3) the

harassment was based on a protected characteristic of the employee, such as

national origin; (4) the harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and create a discriminatorily abusive working

environment; and (5) the employer is responsible for that environment under a

theory of either direct liability or vicarious liability. Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The district court concluded that



state-law claims do not need separate discussion and their outcome is the same as the federal
ones.” (citations omitted)).

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Fernandez failed to establish the fourth element. We therefore focus on whether a

reasonable jury could conclude that the harassment Fernandez suffered was

sufficiently severe or pervasive.

      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,


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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 and


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cannot establish the requisite frequency for a hostile work environment claim

because Fernandez was required to identify specific instances of Soto’s

discriminatory misconduct. This argument lacks merit. Even if they were

precedential, neither of these cases stands for the proposition that a plaintiff must

recall every specific instance of discriminatory conduct to establish that the

conduct was frequent. And in neither case did the evidence reach the level of

specificity found here.

      To illustrate, in Alexander, the African American plaintiff testified that he

was called “boy” “constantly,” but he could only recall eight such instances during

a two-year period. 352 F. App’x at 393. 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 the


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frequency 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. Title VII is implicated only where a workplace is

“permeated with discriminatory intimidation, ridicule and insult,” in contrast to the

“mere utterance of an epithet.” Harris, 510 U.S. at 21 (alteration adopted)

(internal quotation marks omitted). Trees contends that the evidence in this case

“established at most that [Fernandez] was subjected to a few instances of off-

handed comments by Adam Soto that amount[ed] to nothing more than a mere

offensive utterance.” Appellee Br. at 24. We disagree. Soto continually—often in

vulgar terms—disparaged, ridiculed, and insulted all the employees in a protected

class and persisted in doing so despite Fernandez’s and other Cuban employees’

complaints and specific requests that he stop. We therefore have no trouble

concluding that the misconduct went beyond the “mere utterance of an epithet.”

Harris, 510 U.S. at 21 (alteration adopted) (internal quotation marks omitted).

       Our decision in Reeves is instructive. There, the female plaintiff’s co-

workers repeatedly used gender-specific derogatory terms in a generally



       5
         Our decision in Godoy, 211 F. App’x at 852, did not detail the facts underlying the
hostile work environment claim. Thus, we cite to the district court’s recital of the facts of record.

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humiliating, 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 intentional discrimination,” id.

(citation omitted), so too do Soto’s comments here. Although perhaps not as

offensive as the comments in Reeves, Soto’s remarks repeatedly targeted a

protected group with vulgar and derogatory language and continued unabated after

complaints by Fernandez and his co-workers. Thus, a reasonable jury could

conclude that Soto’s harassment was sufficiently serious to give rise to a hostile

work environment claim.

       Fernandez has also satisfied the third factor by demonstrating that Soto’s

conduct was sufficiently humiliating to support a hostile work environment claim.6


       6
         Fernandez also contends that Soto’s conduct was physically threatening because Soto
would “try to intimidate [the Cuban workers] into . . . put[ting] up with dangerous conditions.”
Doc. No. 59-1 at 1. Fernandez offers as evidence of this contention only his declaration in
opposition to Trees’s motion for summary judgment. Trees argues that we cannot consider this
declaration because its translation from Spanish was not properly authenticated. Having

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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 job


concluded that Soto’s conduct was humiliating, we need not reach whether the conduct was also
physically intimidating, and so we do not consider Fernandez’s declaration.
       7
          Trees argues that we have previously held, in an unpublished opinion, that comments
like Soto’s were insufficiently humiliating. See Dominguez v. Lake Como Club, 520 F. App’x
937, 938-41 (11th Cir. 2013) (holding that comments such as, “I hate fuckin’ Cubans” and “we
don’t have any Mexicans working here[,] but we got the next best thing, a Cuban” were not
sufficiently humiliating). But we find this nonbinding case unpersuasive. In Dominguez, we
affirmed the district court’s grant of summary judgment without specifically addressing each of
the four factors of the objective prong of a hostile work environment claim. Thus, this case does
not undercut our conclusion that Soto’s comments were sufficiently humiliating for Fernandez.
Additionally, the facts of Dominguez were materially different: There, the plaintiff complained
of a few isolated comments by various co-workers, his supervisor, and the supervisor’s wife. By
contrast, Fernandez demonstrated persistent, near-daily harassment from his supervisor at
meetings and on the job site, despite Fernandez’s and other employees’ complaints.

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performance 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 raise a

material issue of fact whether the harassment was objectively severe or pervasive.

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 retaliatory


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attitude 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


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“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 (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

origin discrimination claim, and we reverse the district court’s ruling on

Fernandez’s hostile work environment claim and remand that claim to the district

court for further proceedings.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.


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