[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                September 7, 2007
                               No. 07-10618                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 04-01055-CV-T-24TBM

GERALDINE DAR DAR,


                                                               Plaintiff-Appellant,

                                     versus

ASSOCIATED OUTDOOR CLUB, INC.,

                                                             Defendant-Appellee.


                         ________________________

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

                              (September 7, 2007)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Geraldine Dar Dar appeals the district court’s judgment in favor of her
former employer, Associated Outdoor Club, Inc., in her hostile work environment

sexual harassment case, brought pursuant to the Florida Civil Rights Act and Title

VII.1 This is Dar Dar’s second appeal in this matter.

       Before the first appeal, the district court granted summary judgment for

Associated on Dar Dar’s retaliation claim and found that most of the incidents

which formed the basis of her hostile work environment claim were insufficient as

a matter of law to support such a claim. As to the remaining incidents, where Dar

Dar’s coworkers touched her buttocks, the district court concluded that they could

be severe enough to have subjected her to a hostile work environment. The district

court conducted a bench trial on the remaining incidents and, at the end of it,

entered judgment for Associated.

       Dar Dar appealed the judgment for Associated, arguing that the district court

erred: (1) in granting summary judgment for Associated on her retaliation claim;

(2) in granting summary judgment on her hostile work environment claim to the

extent that she relied on incidents other than the buttocks touching; and (3) in

granting judgment to Associated at the subsequent bench trial on the hostile work

environment claim based on the buttocks touching incidents.


       1
         The FCRA is patterned after Title VII, and thus federal case law dealing with Title VII
is applicable to employment discrimination claims brought under Florida law. Maniccia v.
Brown, 

, 1368 n.2 (11th Cir. 1999). Therefore, Dar Dar’s FCRA claim will
analyzed together with the Title VII claim.

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      We affirmed the summary judgment for Associated on her retaliation claim

and agreed with the district court that the majority of incidents alleged by Dar Dar

to have created a hostile work environment were insufficient as a matter of law to

support such a claim. However, we reversed the court’s summary judgment as to

two of the incidents found by the court to be insufficient as a matter of law to

support a hostile work environment claim—the inappropriate comments made by

Robert Diez and Tony Guzman—concluding that these, together with the buttocks

touching incidents, raised a genuine issue of material fact as to Dar Dar’s hostile

work environment claim.

      We vacated the judgment and remanded for the district court to determine

whether the following alleged acts subjected Dar Dar to a hostile work

environment: (1) Dar Dar being touched repeatedly on her buttocks by co-

workers; (2) Robert Diez asking Dar Dar if she had seen or worn panties with a

“built-in butt”; and (3) Tony Guzman telling Dar Dar that he had seen an

individual’s “whale of a dick” in the restroom. Dar Dar v. Associated Outdoor

Club, Inc., No. 06-10245 (11th Cir. Oct. 23, 2006). On remand, the district court

found without further evidentiary proceedings that these acts, taken as a whole, did

not establish that Dar Dar was subjected to a hostile work environment.

      Dar Dar contends that this Court erred in the first appeal by not directing the



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district court on remand to consider evidence of the other non-sexual incidents that

we concluded in the first appeal were insufficient as a matter of law to support a

hostile work environment claim and to consider Associated’s alleged failure to take

effective action to address Dar Dar’s complaints. Because we have already ruled

on these matters, however, we are bound by the law of the case to reject this

contention. “The law of the case doctrine bars relitigation of issues that were

decided, either explicitly or by necessary implication, in an earlier appeal of the

same case.” United States v. Jordan, 

, 1035 (11th Cir. 2005).

Although exceptions exist, such as when “we are convinced [that] our decision in

the prior appeal is clearly erroneous and following it would work a manifest

injustice,” none of them are present in this case. 

second contention is similar to the first, in that it essentially

challenges one of our rulings in the first appeal. Dar Dar contends that we erred in

affirming the district court’s grant of summary judgment to Associated on the

retaliation claim. See Dar Dar, No. 06-10245, at 11. For the same reasons her first

contention is barred by the law of the case doctrine, this one is also.

      Dar Dar’s third contention is that the district court failed to consider the

“built-in butt” and “whale of a dick” comments and the touching of her buttocks

under the totality of the circumstances analysis, as we directed it to do. See 

the contrary, the district court explicitly considered all of the circumstances in

concluding that the facts alleged by Dar Dar did not establish a hostile work

environment claim under the FRCA or Title VII. For example, the court said:

      [E]ven if Capitano and/or Reker’s touching could be considered
      sexual in nature or based on Plaintiff’s sex, consideration of their
      conduct in addition to Diaz and Guzman’s comments would not
      change the outcome in this case, because it is clear to the Court that
      these incidents, considered together, were not so severe or pervasive
      that they materially altered the conditions of Plaintiff’s employment.

(emphasis added)

      Finally, Dar Dar challenges the district court’s legal conclusion that

she did not prove that all of the alleged sexual harassment together created a hostile

work environment by a preponderance of the evidence. We review “the district

court’s . . . analysis of law de novo.” Doe v. Dekalb County Sch. Dist., 

, 1445 (11th Cir. 1998).

      Title VII prohibits “hostile work environment” sexual harassment. See

Walton v. Johnson & Johnson Servs., Inc., 

, 1279 (11th Cir. 2003).

To establish a prima facie case of hostile work environment sexual harassment, a

plaintiff must show that: (1) she belongs to a protected group; (2) she has been

subject to unwelcome harassment; (3) the harassment was based upon her sex; (4)

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

conditions of employment and create a discriminatorily abusive working

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environment”; and (5) the employer is responsible for such an environment. 

      The Supreme Court has identified four factors to consider in determining

whether harassing conduct is sufficiently severe or pervasive to alter an

employee’s terms or conditions of employment: (1) “the frequency of the

discriminatory 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 an employee’s work

performance.” Harris v. Forklift Sys., Inc., 

, 23, 

, 371,

(1993).

      There were two sexually inappropriate comments and two incidents of

intentional buttocks touching over the course of 22 months. In Gupta v. Fla. Bd. of

Regents, over the course of six or seven months, the male supervisor of a female

professor repeatedly called her at her home, once complimented her appearance,

twice stared at her, once placed his hand on her knee, once touched the hem of her

dress, once touched her ring and bracelet, and repeatedly asked her out to lunch.

, 585 (11th Cir. 2000). The Court held that the supervisor’s conduct,

while perhaps “annoying or inappropriate,” was not sufficiently serious to support

a sexual harassment claim. 

instances of employees touching Dar



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Dar’s buttocks—in one of which the toucher was a woman in her seventies—and

the two risque comments are no more serious than the conduct we held did not

establish a hostile work environment in Gupta. As the Supreme Court has stated,

“simple teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of

employment.” Farragher v. City of Boca Raton, 

, 788, 

, 2283 (1998) (citation omitted). The district court did not err in finding that

Dar Dar failed to prove that the alleged sexual harassment created a hostile work

environment.

      AFFIRMED.




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