                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                  FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                   ________________________                JUNE 11 2007
                                                        THOMAS K. KAHN
                          No. 06-13974                       CLERK
                    ________________________

             D. C. Docket No. 04-01542-CV-ORL-28-DAB

DAWN GEORGETTE MYERS,

                                                       Plaintiff-Appellant,

                               versus

CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
CFI SALES AND MARKETING, LTD,


                                                    Defendants-Appellees,

WESTGATE LAKES, INC.,
et al.,

                                                              Defendants.
                    ________________________

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

                           (June 11, 2007)
Before CARNES and WILSON, Circuit Judges, and WALTER,* District Judge.

PER CURIAM:

       Dawn Georgette Myers sued Central Florida Investments, Inc. and its

various subsidiary companies (collectively CFI), claiming that she was sexually

harassed by CFI’s president and CEO, David Siegel, and ultimately fired for

rejecting his advances. CFI develops, manages and sells resort timeshares in

Orlando, Florida, and during her employment with the company, Myers served as

executive director of a new spa at one of CFI’s resorts.

       The district court dismissed three of Myers’ claims1 and then granted

summary judgment to CFI on her remaining claims of sexual harassment and

retaliation, which asserted a violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq., and the Florida Civil Rights Act of 1992 (FCRA), Fla.

Stat. §§ 509.092, 760.01–.11. The court also remanded her state law claims of

battery and false imprisonment to state court.2 Myers now appeals the district


       *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
       1
         The other three counts that had already been dismissed raised claims of retaliation
under the Florida Private Whistleblower Act, inducement to prostitution, and negligent retention
and supervision.
       2
          In light of our determination that Myers’ FCRA and Title VII sexual harassment claims
survive summary judgment, her state-law battery and false imprisonment claims should be
reinstated.

                                               2
court’s grant of summary judgment as well as its denial of her third motion to

compel discovery.

      The FCRA claims stand or fall with the Title VII claims, so our analysis

focuses on the federal allegations. Harper v. Blockbuster Entm’t Corp., 139 F.3d

1385, 1387 (11th Cir. 1998). Our review of the district court’s grant of summary

judgment is de novo, and we are to “view all the evidence, and make all

reasonable factual inferences, in the light most favorable to the nonmoving party.”

Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003).

Additionally, we review the district court’s decision to grant or deny Myers’

motion to compel discovery for abuse of discretion. R.M.R. v. Muscogee County

Sch. Dist., 165 F.3d 812, 816 (11th Cir. 1999).

                                         I.

      First, we will consider Myers’ sexual harassment claim. We have made

clear that “[t]o prove sexual harassment under Title VII, a plaintiff must show (1)

that she belongs to a protected group; (2) that she has been subjected to

unwelcome sexual harassment; (3) that the harassment was based on her sex; (4)

that the harassment was sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive working

environment; and (5) that a basis for holding the employer liable exists.” Hulsey

                                         3
v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004). The district court

found that Myers established the first three factors but failed to prove the fourth.

Accordingly, the court did not address the fifth factor. So our review now centers

on the fourth factor—Myers’ ability to show the alleged harassment was

sufficiently severe or pervasive. In attempting to establish this claim, there are

two theories of harassment that a plaintiff can assert, and Myers asserts both. She

contends that she suffered sexual harassment under both the tangible employment

action theory and the hostile environment theory. We consider each in turn.

      To sustain a sexual harassment claim under the tangible employment action

theory, Myers must show that her refusal of Siegel’s advances resulted in a

“significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761, 118 S. Ct. 2257, 2268 (1998). There is no question that her

termination constituted a “tangible employment action,” but in order to sustain the

claim she must show that she was terminated because she refused Siegel’s sexual

demands. Hulsey, 367 F.3d at 1245.

      After reviewing the evidence in the light most favorable to Myers, we agree

with the district court’s determination that Myers failed to sufficiently link her

                                          4
termination to her relationship with Siegel. Under her version of the facts, she

kept Siegel at bay for a full five years, receiving multiple promotions and pay

raises during that time. Although she claims that Siegel’s attitude toward her

changed when she became engaged to another man, she offers no evidence that

Siegel was even aware of the engagement. Furthermore, Myers certainly knew

that the CFI executives were unhappy with the spa’s performance and were

holding her responsible. Myers failed to offer evidence rebutting CFI’s evidence

that she was terminated because of the spa’s lack of profitability. See Frederick v.

Sprint/United Mgmt. Co., 246 F.3d 1305, 1312–13 (11th Cir. 2001) (affirming

grant of summary judgment on tangible employment sexual harassment theory

because there was “unrebutted evidence showing that [the plaintiff] was denied the

promotion . . . on grounds independent of the alleged harassment”). Because

Myers could not establish a connection between her termination and her rejection

of Siegel, her sexual harassment claim cannot survive summary judgement on the

tangible employment action theory.

      Nevertheless, although we reject the tangible employment action theory, we

find that Myers did present sufficient evidence to create a genuine issue of

material fact as to whether she experienced a hostile work environment at CFI.

The district court found that Myers was unable to show that the harassment she

                                         5
suffered was both objectively and subjectively severe or pervasive. See Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21–22, 114 S. Ct. 367, 370 (1993) (noting that a

plaintiff must demonstrate both that a reasonable person would have found the

environment to be hostile and that she herself subjectively viewed the environment

as abusive). We disagree. If we read the evidence, as we must, in the light most

favorable to Myers, it is clear from the record that she has alleged events sufficient

to show both a subjective perception and an objective basis for a hostile work

environment at CFI.

      As to the subjective prong, Myers has set forth evidence from which a

reasonable factfinder could determine that she personally felt harassed while

working at CFI. Chief among the evidence offered was her own deposition

testimony to that effect. She claimed that Siegel’s conduct “mortified” and

“embarrassed” her on multiple occasions, and the district court’s order notes that

she was “uncomfortable” with Siegel’s conduct and asked him to stop.

      Specifically, Myers testified that she asked Siegel to dispel rumors that they

were a couple, but he refused, reveling in the gossip around the company. He

gave her roses at work on several occasions, and she was “mortified” that she had

to leave the office with them for everyone to see. At a company banquet, when

Siegel introduced her to the audience, he told everyone that although she was not

                                          6
his date, he wished she were and had asked her but been turned down. Again,

Myers claimed she was mortified and humiliated in front of her colleagues by this

conduct. Myers also testified that Siegel goaded her into serenading him on stage

at a CFI costume benefit and then simulated an erection under the napkin she had

placed on his lap. Although no one else testified to seeing the improper hand

gesture, two CFI employees submitted affidavits testifying that Myers tried to

maintain her composure on stage and then left the room crying. Furthermore,

Myers claims that Siegel promised her money and gifts if she would date him, at

one point giving her an unexplained $10,000 check. She also alleges that Siegel

publically offered her and her boyfriend $1 million on several occasions for one

night with her.

      Accordingly, there is sufficient record evidence, for the purposes of

overcoming the summary judgment hurdle, to permit a jury to find that Myers

subjectively perceived an abusive working environment during the five years in

question. Even though there is evidence to the contrary—she continued to seek

out Siegel and put herself in compromising positions by traveling with

him—Myers still has created a genuine question of material fact about her

subjective perception.

      Likewise, a reasonable person could have objectively perceived an abusive

                                         7
work environment based on Siegel’s conduct toward Myers. The Supreme Court

has directed us “to determine whether an environment is sufficiently hostile or

abusive by looking at all the circumstances, including [1] the frequency of the

discriminatory conduct; [2] its severity; [3] whether it is physically threatening or

humiliating, or a mere offensive utterance; and [4] whether it unreasonably

interferes with an employee’s work performance.” Faragher v. City of Boca

Raton, 524 U.S. 775, 787–88, 118 S. Ct. 2275, 2283 (1998) (quotations omitted).

We are to consider the four factors under a “totality of the circumstances”

approach, careful not to fixate on a plaintiff’s inability to show a single factor.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).

      Regarding the first factor, Myers’ testimony indicates that the harassing

conduct was frequent. The court’s order states that Myers alleges only ten to

twenty touchings, but the court bases that conclusion on the portion of Myers’

deposition where she claims that Siegel touched her legs ten to twenty times while

they were dining at a specific restaurant. She testified to many more than ten to

twenty touchings over the five-year period. In addition to the ten to twenty

touchings of her leg that occurred at a particular restaurant, Myers testified that

Siegel touched her almost every time she came into a room, acting like she was his

girlfriend, putting his arm around her, and slapping her on the butt. She also

                                           8
alleges that he would put his hand on her legs and rub her legs while she was

sitting next to him. He would put his arms around her and let his hands fall to her

butt. The conduct happened so often that she cannot remember the details of each

instance. Myers testified that Siegel kissed her at least three times, ran his hands

up her legs while she was performing spa treatments on him on several occasions,

and pinned her up against the wall of the spa lobby at least twice.

      Regarding the second factor, Myers alleges conduct that was sufficiently

severe, when taken in light of its frequency, for a reasonable person to find a

hostile work environment. If her testimony is accepted, she was hugged, groped

and even kissed, often in public, on multiple occasions while working for CFI. As

to the third factor, Myers did not have to feel physically threatened by Siegel;

humiliation is an equal consideration. Faragher, 524 U.S. at 787–88, 118 S. Ct. at

2283 (noting that the conduct can be physically threatening or humiliating). There

is no question, that a reasonable person subjected to this kind of unwelcome

conduct at work would feel humiliated.

      Finally, as to the fourth factor, “[t]he Supreme Court has cautioned that

harassment need not be shown to be so extreme that it produces tangible effects on

job performance in order to be actionable. Thus, having established the frequency,

severity, and humiliating nature of the conduct, [the plaintiff’s] failure to establish

                                           9
convincingly how [the employer’s] conduct interfered with his duties is not fatal to

his hostile environment claim, given the totality of the circumstances.” Miller,

277 F.3d at 1277. Even so, a jury reasonably could infer that Siegel’s open pursuit

of Myers made it more difficult for her to perform her job and command the

respect of her subordinates at the spa. See Harris, 510 U.S. at 25 (Ginsburg, J.,

concurring) (“It suffices to prove that a reasonable person subjected to the

discriminatory conduct would find . . . that the harassment so altered working

conditions as to make it more difficult to do the job.” (quotation and alteration

omitted)).

      Therefore, Myers has sufficiently demonstrated both a subjective and an

objective perception of hostility sufficient to overcome summary judgment on her

hostile work environment theory. For summary judgment purposes she has

established the fourth prong of the test—the harassment was severe or pervasive

enough to alter the conditions of her employment. Additionally, although the

district court did not reach the fifth prong of the test—the existence of a basis for

holding the employer liable—Myers has adequately shown, for summary judgment

purposes, that CFI was aware of her allegations of harassment and failed to take

action. See Miller, 277 F.3d at 1278–79 (noting that “[i]n order to establish a

basis for holding [an employer] liable for a hostile work environment, [the

                                          10
plaintiff] must show that [the employer] had notice of the alleged harassment and

failed to take immediate and appropriate corrective action”). Myers, therefore, is

entitled to a jury determination on her federal and FCRA sexual harassment

claims, and the district court’s grant of summary judgment was improper.

                                               II.

       As to Myers’ retaliation claim, the district court properly concluded that she

failed to offer evidence supporting a causal connection between any protected

activity and her termination. Stavropoulous v. Firestone, 361 F.3d 610, 616 (11th

Cir. 2004).3 Her “formal” complaints to management did not occur until after

meetings regarding the spa’s lack of profitability. And, as the district court noted,

even if Myers did establish a prima facie retaliation case, CFI has met its burden

of offering a legitimate, nondiscriminatory reason for her termination under the

applicable McDonnell-Douglas burden-shifting framework. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824 (1973). There is no

question that the spa’s profitability was a primary concern of CFI management and

that they questioned Myers’ ability to run the operation. Even if the district court

       3
          As to Myers’ post-termination retaliation claim, we find that her claim fails because
she cannot show that Siegel’s decision to file an unrelated lawsuit against her was an action that
“would have been materially adverse to a reasonable employee or job applicant,” such that “that
the employer’s actions [were] harmful to the point that they could well [have] dissuade[d] a
reasonable worker from making or supporting a charge of discrimination,” Burlington N. &
Santa Fe Ry. Co. v. White, 548 — U.S. —, 126 S. Ct. 2405, 2409 (2006).

                                                11
erred in relying on the other proffered reasons for Myers’ termination (allegations

of employee misconduct and complaints filed against Myers), any such error was

harmless because the spa’s loss of money was a sufficient nondiscriminatory

reason for her termination. Just as her tangible employment action theory of

sexual harassment fails, Myers cannot sustain a viable retaliation claim.

                                         III.

      Finally, we find that the district court did not abuse its discretion in denying

Myers’ third motion to compel. Our review here is highly deferential, and “we

will not second-guess the district court’s actions unless they reflect a ‘clear error

of judgment.’” Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006)

(quoting United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)). There was

no such “clear error” here in refusing to grant a motion to compel filed eighty-

eight days after discovery had closed.

      AFFIRMED in part VACATED in part and REMANDED.




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