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                                                             [DO NOT PUBLISH]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.
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§ 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


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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


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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


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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


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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


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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




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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.




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      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


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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,




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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.
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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


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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


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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


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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-


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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.




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                                       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.




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