       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   CHERELLDA BRANCH-McKENZIE,
                            Appellant,

                                    v.

                 BROWARD COUNTY SCHOOL BOARD,
                           Appellee.

                              No. 4D18-379

                          [September 12, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. CACE 14-18216 (13).

   Melissa C. Mihok of CPLS, P.A., Orlando, for appellant.

  Debra Potter Klauber and Kenneth J. Miller of Haliczer, Pettis &
Schwamm, P.A., Fort Lauderdale, for appellee.

CONNER, J.

    Cherellda Branch-McKenzie (“the Employee”) appeals the final
judgment issued after the trial court granted summary judgment in favor
of the School Board of Broward County (“the School Board”), as to all five
counts of the Employee’s complaint. We affirm the summary judgment as
to four of the counts without discussion, but reverse as to the count
alleging a hostile work environment sexual harassment claim. We
determine the trial court erred in concluding that there was no dispute of
material fact and as a matter of law the alleged behavior was not pervasive
enough to support a hostile work environment sexual harassment claim.
We remand for further proceedings as to that claim.

                               Background

    The Employee filed a five-count complaint against the School Board,
one of which alleged sexual harassment. The complaint alleged facts
involving the behavior of the principal (“the Principal”) of a school where
the Employee was a guidance counselor. More specifically, the complaint
alleged the following verbal statements and physical actions by the
Principal:
Verbal Statements (to the Employee)

      “Girl, you look good, I sure would like to see what that’s like.
      I know I can have THAT! . . . I’m serious, I need to try THAT!”

      Could he “get that.”

      “You have me curious”; “we need to go out”; and “you scared
      of me, I would have you whooped.”

      Called the Employee on the phone multiple times to ask what
      she was wearing. Also asked her to send “a picture of herself
      without her face and to engage in video chats with him.”

      Asked if he could “get a hug, and not a friendly hug”; “I bet
      [your husband] don’t make you feel that way [give you chills]”;
      “let me get that right there”; said she was “too cute”; an
      “enigma”; and he was “emotionally attached” to the Employee.

      He said he wanted to ask the Employee to stay late, but that
      he had a previous sexual harassment claim against him based
      on that same conduct, winked at the Employee, and said
      “there I go, now I’m winking at you.”

      He told her “you don’t come to see me anymore,” and when
      the Employee said she was busy, he said “no you’re not, you
      need to come see me.”

      He told the Employee to have lunch with him, and when she
      tried to make excuses not to, he said he wanted to “mend their
      relationship,” that the Employee “don’t talk to me nor do you
      come to see me,” and that she made him “humble.”

      He told a co-worker that he was “going to find my girl,”
      referring to the Employee.

Verbal and Physical Actions

      The Principal touched the Employee “on multiple occasions on
      her buttocks,” and on one occasion stated, “oh, I’m sorry, but
      it felt good!”

      The Principal placed his finger(s) on the Employee’s lips if he
      thought she was talking too loud.

                                      2
      The Principal touched the Employee on the neck and said
      “come on, let me kiss you right there.” When the Employee
      said “no,” he said next time he would not ask, he would just
      do it, and that she made him “lose his swagger” by having to
      ask.

      The Principal touched the Employee’s neck and said “let me
      get that.” The Principal made the same statement again
      another time, and when the Employee said “no,” the Principal
      touched her back and hair, and told a co-worker who saw the
      exchange that the Employee was “like a mango . . . you can’t
      have just one.”

   The School Board moved for summary judgment as to the sexual
harassment claim, arguing that, even assuming all of the facts as alleged
by the Employee as true, the actions described were not sufficiently
pervasive enough to support a sexual harassment claim.            Various
deposition transcripts were submitted by both sides to support and oppose
the motion.

   In her deposition, the Employee stated that the Principal became the
principal of the school where she worked at the beginning of the 2011-
2012 school year. As for the allegations in the complaint, the Employee
stated that the verbal and physical actions started when the Principal first
came to the school in August 2011. The Employee’s deposition testimony
mirrored the factual allegations in the complaint.

   The Employee stated that she first reported the harassment to the
School Board’s Equal Employment Opportunity office (“EEO”) in
September 2012. She stated that she tried to tell the Principal to stop, but
that he would “blow it off,” telling her “that he was going to humble [her]
and in his country women bough [sic] down.” The Employee stated that
she never had a conversation with the Principal where he acknowledged
that he knew of her filing an employee complaint against him, but that
someone else, who she could not remember, told her that he made such
an acknowledgment. She stated, multiple times, that “after [the Principal]
found out [she] reported [the behavior], he still continued to do it.”
However, when she was specifically asked whether the Principal did
anything inappropriate after she filed her complaint with the EEO, she
stated that she was not sure, and that he stopped at some point, but only
because she “avoided him.”




                                     3
    Another employee, who worked at the school during the time period
alleged in the Employee’s EEO complaint, was deposed. She stated that
she witnessed the Principal act inappropriately towards the Employee.
She stated that the first time she made such an observation was when she
saw the Principal approach the Employee and “made reference to her neck,
saying next time, he’s not going to ask for a kiss, she’s [sic] just going to
take it,” and made reference “about her neck tasting like a mango or
something like that.”

   The other employee also said that the Principal: would refer to the
Employee as “his boo”; said he was going to be sent back on administrative
duty (like he was after the previous sexual harassment claim) if he did not
stop “messing with” the Employee; and accidentally touched the
Employee’s behind and said it was a mistake “but a good mistake.” She
stated that the Principal had also been inappropriate towards her as well.
The other employee also said that the Employee told her never to leave the
Employee alone with the Principal, and she made an effort not to. An ESE
teacher at the school also gave a deposition, and said that the Employee
stopped coming to a staff meeting that she usually attended, because the
Employee “said she didn’t want to see that man, she didn’t want to be near
that man, she didn’t want to be in the same room, and she was not
coming.” A bookkeeper for the school during the relevant time stated in
deposition that the Employee told her that the Principal “was feeling on
her arms and she didn’t like it.” Also, that when the Employee stated she
was going to report the Principal to the School Board, but had trepidations
because of the Principal’s family, the bookkeeper prayed with the
Employee, “for everything to come out.”

    In the Principal’s deposition, he admitted that he had previously been
accused of, and subject to an investigation for, sexual harassment, and
that the result of that investigation was a finding of probable cause to
support the allegations and he was suspended for ten days. He denied all
of the allegations the Employee made against him, and said that she even
volunteered to be on-site with him for summer school, and a person
“wouldn’t ask to do that with a person that makes you feel uncomfortable,
or in this case, she alleges is harassing you.”

   At the hearing on its motion for summary judgment, for purposes of the
motion, the School Board agreed with all of the allegations made by the
Employee. Consistent with the written motion, the School Board argued
that the Employee’s sexual harassment claim should fail because the
actions, even as alleged, were not pervasive enough to support such a
claim. The Employee responded, arguing that the actions were pervasive,


                                     4
as she stopped going to staff meetings and asked for and received a
transfer from the school.

    The trial court granted summary judgment in favor of the School Board
after finding that the Employee’s testimony established that there were no
further incidents of harassment after the Employee filed her EEO
complaint in September 2012, and so as a matter of law, the “claims made
by the [Employee] . . . are not the type that are sufficiently pervasive so as
to constitute a hostile work environment,” and that although the Employee
may have been subjectively offended, it was not enough to meet the
standard for a sexual harassment claim. Subsequently, the Employee
gave notice of appeal.

                               Appellate Analysis

   “The standard of review of an order granting summary judgment is de
novo.” Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. 4th DCA 2007)
(quoting Biggins v. Fantasma Prods., Inc. of Fla., 943 So. 2d 952, 955 (Fla.
4th DCA 2006)).

    Florida Rule of Civil Procedure 1.510 provides that summary judgment
is proper only when “there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fla. R.
Civ. P. 1.510(c). However, “[a] judgment should not be rendered in such
proceedings unless the facts are so crystallized that nothing remains but
questions of law.” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d
842, 853 (Fla. 2003) (quoting Shaffran v. Holness, 93 So. 2d 94, 97-98
(Fla. 1957)). As such, the School Board agreed to the facts as alleged by
the Employee, for purposes of supporting and reviewing the summary
judgment entered by the trial court.

   “Sexual harassment is a form of sex discrimination prohibited by the
Florida Civil Rights Act,[1] so that an employee may assert a claim for
sexual harassment under section 760.10, Florida Statutes (2003).”
Maldonado v. Publix Supermarkets, 939 So. 2d 290, 293 (Fla. 4th DCA
2006). There are two types of sexual harassment cases: (1) quid pro quo,
which are “based on threats which are carried out” or fulfilled, and (2)
hostile environment, which are based on “bothersome attentions or sexual


1“The Florida Civil Rights Act is patterned after Title VII [of the Civil Rights Act
of 1964], and therefore federal case law regarding Title VII is applicable.”
Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 n.3 (Fla. 1st
DCA 2002).


                                         5
remarks that are sufficiently severe or pervasive to create a hostile work
environment.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998).
In the trial court below, the Employee did not allege or pursue a quid pro
quo claim.

   The elements of a hostile work environment sexual harassment claim
are:

      (1) that [the plaintiff] is a member of a protected group; (2) that
      she was subjected to unwelcome sexual harassment, such as
      sexual advances, requests for sexual favors, and other
      conduct of a sexual nature; (3) the harassment was based on
      the sex of the employee; (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) there is a basis for holding the employer
      liable.

Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 927 (Fla. 5th DCA 2009).
However, since the Employee’s claim alleges sexual harassment by “a
direct supervisor, the employee does not have to prove the fifth element.”
Grogan v. Heritage NH, LLC, 126 So. 3d 262, 264 (Fla. 3d DCA 2010).
Additionally, in this case there does not appear to be any contention, in
terms of summary judgment, as to the first, second, and third elements.
Therefore the issue in this case is whether the Principal’s conduct was
pervasive enough to create a hostile environment.

   In order to determine whether offensive conduct is pervasive enough,
courts look to four factors:

      1) the frequency of the conduct; 2) the severity of the conduct;
      3) whether the conduct was physically threatening or
      humiliating; and 4) whether the conduct unreasonably
      interfered with the employee’s job performance.

Maldonado, 939 So. 2d at 294. “An analysis of the severity factors includes
a subjective and objective component, in that the employee must
subjectively perceive the harassment as sufficiently severe and pervasive
to alter the terms or conditions of employment, and the subjective
perception must be objectively reasonable.” Id. The objective component
uses a reasonable person standard, taking into account the circumstances
of the case. Id. at 294-95. It is clear that the Employee subjectively
considered the sexual harassment severe and pervasive enough, but a look
at the factors is necessary for the objective standard analysis.


                                      6
Frequency of the Conduct

    “[S]tatements and conduct must be of a sexual or gender-related nature
. . . before they are considered in determining whether the severe or
pervasive requirement is met.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
583 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006). To analyze this factor, we focus
on allegations as to instances of verbal and physical conduct alleged in the
complaint to have occurred over a two-year period. However, it must be
noted that two of the verbal allegations and three of the physical
allegations were alleged to have happened on “multiple occasions.”

   Considering the frequency of the conduct, and whether the allegations
were sufficient to survive a motion for summary judgment, it is helpful to
look to the number of allegations in a certain time period that other courts
have found to be sufficient or insufficient as a matter of law. For example,
courts have found the following facts insufficient as a matter of law: four
comments over a 2.5 year period, Maldonado, 939 So. 2d at 295; five
incidents over an eleven month period, Mendoza v. Borden, Inc., 195 F.3d
1238, 1249 (11th Cir. 1999); “five separate incidents . . . over a span of
approximately sixteen months,” Sprague v. Thorn Ams., Inc., 129 F.3d
1355, 1366 (10th Cir. 1997); and three encounters over a two-year period,
Galdamez v. DHL Air Exp. USA, 578 Fed. App’x. 887, 889 (11th Cir. 2014).
On the other hand, courts have found sufficient frequency to constitute a
jury question where there was: “roughly fifteen separate instances of
harassment over the course of four months,” Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000); and
almost-daily abuse, both verbal and physical, over a three-year period,
Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 418-19 (11th
Cir. 1999).

   The facts of this case fall somewhere between the above examples. In
total, the Employee alleged that there were more than twenty incidents
over a two-year period. This case is similar to Degitz v. Southern
Management Services, Inc., 996 F. Supp. 1451 (M.D. Fla. 1998), where the
plaintiff made the following allegations:

      Plaintiff claims that Mr. Copley would ask Plaintiff to “run
      away with him,” state that “he could not concentrate with
      Plaintiff around,” that he “would like to see Plaintiff in a
      bikini,” and that Plaintiff “looked good enough to eat.” In
      addition, Plaintiff contends that Mr. Copley would say to her,
      “would the little girl like a lolly pop?” Plaintiff contends that



                                     7
      many more of the same, or similar, remarks were made
      throughout her employment.

      In addition, Plaintiff describes specific acts which she alleges
      were extremely oppressive to her. First, Plaintiff alleges that
      on or about July 31, 1995, Mr. Copley gave Plaintiff a first aid
      kit, in which, Mr. Copley concealed a condom. Plaintiff’s
      twelve (12) year old daughter was playing with the kit and
      discovered the condom. Also, Plaintiff maintains that, in
      September, 1995, while leaving a company cookout, Mr.
      Copley followed Plaintiff to her vehicle where Mr. Copley
      grabbed her and tried to kiss and hug her. Furthermore,
      Plaintiff asserts that later that same month, Mr. Copley
      directed Plaintiff to meet him for lunch. Plaintiff claims that
      during the lunch, Mr. Copley directly and specifically asked
      Plaintiff to participate in a threesome sexual encounter with
      himself and a prostitute. Plaintiff states that she refused, but
      later that same day, Mr. Copley entered Plaintiff’s office and
      placed the prostitute’s business card on Plaintiff’s desk.

      Plaintiff also asserts that on October 20, 1995, Plaintiff stayed
      home from work due to illness. Plaintiff states that her
      husband and daughter were home sick as well. According to
      Plaintiff, Mr. Copley called Plaintiffs’ home and Plaintiffs’
      daughter answered the phone. Plaintiff asserts that Mr.
      Copley must have thought it was Plaintiff who answered the
      phone because Mr. Copley stated, “this is Dr. Copley, and I
      make house calls to make it all better.” In addition, Plaintiff
      alleges that on numerous occasions, Mr. Copley would stand
      behind Plaintiff while she was at her desk and fondle her neck
      and back. Moreover, Plaintiff attests that she was fearful that
      she would lose her job if she complained to anyone. Plaintiff
      asserts that as a result of Mr. Copley’s constant advances, she
      became scared, nervous, and very depressed.

Id. at 1456. In this case, the comments were similar, and similar remarks
are alleged to have been made on a repeated basis. Additionally, while the
harasser in Degitz attempted to kiss the plaintiff on one occasion, outside
of work, here, the Employee alleged that the Principal made comments
about touching her and threatening to kiss her on multiple occasions while
at work. The Employee also alleged that the Principal called her personal
cell phone on multiple occasions, soliciting “a picture of herself without
her face,” and asking her what she was wearing.


                                     8
   Therefore, we conclude the alleged facts in this case were frequent
enough such that the frequency of conduct factor should have been
resolved by a jury decision, rather than a summary judgment decision.

Severity of Conduct

   “Title VII ‘does not prohibit all verbal or physical harassment in the
workplace,’ and ‘does not reach genuine but innocuous differences in the
ways men and women routinely interact with members of the same sex
and of the opposite sex.’” Johnson, 234 F.3d at 509 (quoting Oncale v.
Sundowner Offshore Servs. Inc., 523 U.S. 75, 80–81 (1998)). Also, “teasing,
offhand comments, or isolated incidents” are not enough. Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 812 (11th Cir. 2010). “Although
a single act can be enough . . . generally, repeated incidents create a
stronger claim of hostile environment, with the strength of the claim
depending on the number of incidents and the intensity of each incident.”
King v. Bd. of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir.
1990).

    Similar to the frequency factor, there are many cases discussing what
is and is not severe enough. The following are instances where courts have
found the facts insufficient as a matter of law for severity:

      The alleged harasser told complainant that she was “very beautiful”
      on one occasion; alleged harasser called complainant at home on
      nights and weekends, and although asked her personal questions,
      he never “ask[ed her] for a date or ma[d]e sexually explicit remarks
      or innuendos”; one time when he was expecting her, the alleged
      harasser was not wearing a dress shirt (but an undershirt), and
      when the complainant came in, he unbuttoned his pants, pulled
      down his zipper, and started tucking in his shirt, but the
      complainant admitted the air conditioning was broken that day; the
      alleged harasser stared at the complainant twice, touched her ring
      and bracelet once and kept asking her to lunch; and what the court
      found most serious, the alleged harasser placed his hand on the
      complainant’s knee once and touched the hem of her dress once.
      Gupta, 212 F.3d at 584-85

      “(1) [the alleged harasser] once made a remark to [the complainant]
      about another employee’s body, (2) he once slapped her on the
      behind with a newspaper, (3) he ‘grabbed or brushed’ against the
      complainant]’s breasts and behind, (4) he once held her cheeks and
      tried to kiss her, (5) he asked [the complainant] to come to the office
      early so that they could be alone, and (6) he once stood in the door


                                     9
      of the bathroom while she was washing her hands.” Hockman v.
      Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004).

   The following are instances where courts have found the facts sufficient
to constitute a jury question:

      “[D]uring [a] seven-month period, [the alleged harasser] grabbed [the
      complainant] and kissed her on the cheek, popped rubber bands at
      her breasts, fondled her breasts ‘numerous times,’ patted her on her
      buttocks ‘numerous times,’ and came behind her and rubbed his
      body against her. At one point, [the complainant] estimated that
      [the alleged harasser] touched her breasts or her buttocks perhaps
      as often as once a week ― although she later stated that it may not
      have been as often as once a week. She also claims that on one
      occasion [the alleged harasser] made comments to her about her sex
      life and her abilities in bed. [The complainant] stated that she
      protested every time [the alleged harasser] touched her breasts and
      she also protested when [the alleged harasser] would pat her
      buttocks.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428,
      435-36 (5th Cir. 2005).

      When discussing a raise for the complainant, the alleged harasser
      told the complainant she was “sleeping with the wrong employee” for
      a raise (the complainant’s boyfriend also worked for the same
      company); he also said this on other occasions, at least once in front
      of other people; at an office party, the alleged harasser placed his
      hand on the complainant’s thigh, lifting her skirt a few inches, and
      took a picture of his hand on her leg, and also asked if he could go
      to her hotel room; five or six times the alleged harasser came up
      behind the complainant while she was working, put his hands on
      her neck or back, and “leaned into her”; alleged harasser called
      complainant “hot” and discussed what type of underwear she wore.
      Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 601-02 (2d Cir.
      2006).

   The facts of this case are more similar to the second set of cases, and
particularly Schiano (where there were instances of physical touching, and
also multiple inappropriate and sexual comments, some in front of other
people). The Employee’s allegations are more severe than those in Gupta
and Hockman. Move over, there were more instances of inappropriate
comments by the Principal than were found sufficient in Schiano, and the
Principal even called the Employee at home, and made sexual innuendos,
which were missing in Gupta, asking her what she was wearing, and
asking for photographs of the Employee.

                                    10
   Therefore, we conclude the alleged facts in this case were severe enough
such that the severity of conduct factor should have been resolved by a
jury decision, rather than a summary judgment decision.

Physically Threatening or Humiliating

    In Maldonado, this Court explained that touching that was potentially
accidental was not enough to be physically threatening. 939 So. 2d at
295-96. Although the Employee described one instance where the
Principal may have accidentally touched her buttocks, she alleged multiple
other occasions where the Principal purposely touched her in a sexual
manner. Additionally, the Employee alleged that after touching her on the
neck, the Principal made a comment to the effect that he would not ask
her for a kiss, but next time, just kiss her. Therefore, the Employee did
not know if the Principal would carry out this actual threat of physical
unwanted touching. Cf. Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991)
(“[The alleged harasser] . . . said he would [partake in the harassing
conduct] again. [The complainant] had no way of knowing what [the
alleged harasser] would do next.”).

   We are satisfied that the actions by the Principal also fall under the
category of humiliating, particularly since multiple of the allegations
occurred in the presence of other co-workers. See Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002) (“[T]he testimony
makes it clear that these incidents were humiliating and degrading to [the
complainant]. The very nature of the coworkers’ utterances, coupled with
the fact that they were directed at [the complainant] and were sometimes
used in the course of reprimanding him in front of others, establishes this
factor.”); cf. Oncale, 523 U.S. at 77 (“On several occasions, [the
complainant] was forcibly subjected to sex-related, humiliating actions
against him by [a co-worker and two supervisors] in the presence of the
rest of the crew.”).

    The Employee alleged and testified in deposition that the Principal
made a comment about touching the Employee’s buttocks and referring to
her as a “mango.” That allegation was corroborated by the deposition
testimony of a co-worker, as well as the fact that the Principal called the
Employee “his boo” to the co-worker. Additionally, there was evidence to
support that this co-worker and the Employee made a pact not to leave
each other alone with the Principal, reducing the Employee to the necessity
of a chaperone in the Principal’s presence.

  Therefore, we conclude the alleged facts in this case were arguably
physically threatening or humiliating enough such that the physically


                                    11
threatening or humiliating conduct factor should have been resolved by a
jury decision, rather than a summary judgment decision.

Unreasonable Interference with Job Performance

   The Supreme Court has explained:

      Title VII comes into play before the harassing conduct leads
      to a nervous breakdown. A discriminatorily abusive work
      environment, even one that does not seriously affect
      employees’ psychological well-being, can and often will detract
      from employees’ job performance, discourage employees from
      remaining on the job, or keep them from advancing in their
      careers. Moreover, even without regard to these tangible
      effects, the very fact that the discriminatory conduct was so
      severe or pervasive that it created a work environment abusive
      to employees because of their race, gender, religion, or
      national origin offends Title VII’s broad rule of workplace
      equality.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).

      To show interference with one’s employment sufficient to
      make a prima facie case of a hostile work environment, “the
      plaintiff need not prove that his or her tangible productivity
      has declined as a result of the harassment. The employee
      need only show that the harassment made it more difficult to
      do the job.”

Smith v. Akstein, 408 F. Supp. 2d 1309, 1328 (N.D. Ga. 2005) (quoting
Williams v. Gen. Motors Corp., 187 F.3d 553, 567 (6th Cir. 1999)).

   Here, although the Employee continued to work for the School Board,
she eventually requested a transfer from the school. Additionally, prior to
her request, there were additional interferences with the Employee’s job
performance. The Employee alleged that she made a pact with a co-worker
not to be alone with the Principal, and that she stopped going to meetings
in an effort to avoid the Principal. A co-worker testified at deposition that
she told the Employee that the latter could be seen as insubordination, yet
the Employee continued to avoid the meetings. Additionally, the Employee
stated that she did not apply for an assistant principal position, because
she thought that she would not receive the promotion based on the
Principal’s threats. These types of alterations are enough to constitute
unreasonable interference with the Employee’s job performance. Compare
Schiano, 445 F.3d at 606 (finding it relevant that the complainant alleged

                                      12
that she asked for a partition to be put up around her desk to keep the
alleged harasser away from her), and Johnson, 234 F.3d at 509 (finding
that the conduct unreasonably interfered with job performance where the
employee “could not get along with her on-the-air co-host”), with
Maldonado, 939 So. 2d at 296 (finding it insufficient that after her co-
worker grabbed her buttocks, the complainant stated that “she quickly
punched out without cleaning her . . . machine”).

   Therefore, we conclude the alleged facts in this case demonstrate
unreasonable interference with the Employee’s job performance such that
the unreasonable interference with job performance factor should have
been resolved by a jury decision, rather than a summary judgment
decision.

                                Conclusion

    As to the propriety of a summary judgment in favor of the School Board
on the Employee’s hostile work environment sexual harassment claim, the
contested issue is whether the alleged sexually harassing behavior was
pervasive enough to support the claim. Having reviewed the record
regarding the four factors identified in Maldonado to determine whether
offensive conduct was pervasive enough to support a hostile work
environment sexual harassment claim, we determine that the Employee
came forward with sufficient summary judgment evidence as to all four
factors to defeat summary judgment. We therefore affirm summary
judgment in favor of the School Board as to all of the claims alleged in the
complaint, except for the hostile work environment sexual harassment
claim. We reverse the summary judgment as to the hostile work
environment sexual harassment claim and remand the case for further
proceedings as to that claim.

   Affirmed in part, reversed in part, and remanded.

GROSS and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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