Filed: Aug. 05, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-14232 AUGUST 5, 2010 _ JOHN LEY CLERK D. C. Docket No. 08-00708-CV-T-17-MAP VIVIAN GARRIGA, Plaintiff-Appellant, versus NOVO NORDISK INC., a foreign corporation, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (August 5, 2010) Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges. PER CURIAM: Vivian Ga
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-14232 AUGUST 5, 2010 _ JOHN LEY CLERK D. C. Docket No. 08-00708-CV-T-17-MAP VIVIAN GARRIGA, Plaintiff-Appellant, versus NOVO NORDISK INC., a foreign corporation, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (August 5, 2010) Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges. PER CURIAM: Vivian Gar..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14232 AUGUST 5, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00708-CV-T-17-MAP
VIVIAN GARRIGA,
Plaintiff-Appellant,
versus
NOVO NORDISK INC.,
a foreign corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Vivian Garriga appeals the summary judgment in favor of her former
employer, Novo Nordisk, and against her complaint of a hostile work environment,
42 U.S.C. § 2000e-2(a); Fla. Stat. § 760.10(1), and retaliation, 42 U.S.C.
§ 2000e-3(a); Fla. Stat. § 760.10(7). We affirm.
I. BACKGROUND
From April 2001 until her termination on September 6, 2007, Vivian Garriga
sold medicines in the St. Petersburg, Florida area for Novo Nordisk, Inc., a
subsidiary of Novo Nordisk A/S, a Danish manufacturer and distributor of drugs
for diabetes. Garriga was a successful sales representative praised by her
supervisors. Garriga’s success changed when Novo Nordisk hired Brian Taylor in
March 2007 as the new Business Manager for Garriga’s territory.
As business manager, Taylor had limited interaction with Garriga and other
Novo Nordisk sales representatives, but from their first encounter, Garriga objected
to Taylor’s conduct. Taylor asked everyone at his first district-wide staff meeting
in early May to name the celebrity with whom they would like to have sex.
Garriga was “speechless,” but she did not complain to Taylor because she thought
that once she got to know Taylor, they would “get along well.” Taylor’s sexual
banter instead continued. Taylor called Garriga and her work partner, Shannon
Duffy, by nicknames that Garriga perceived as sexual in nature and offensive. On
May 17, during a two-day “ride-along” in which Taylor accompanied Garriga to
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her meetings with physicians, Taylor “put his arm around” Garriga in the parking
lot of a restaurant. Taylor also “constant[ly]” leered at Garriga’s breasts and
backside that day, as well as during a meeting in June and another ride-along in
July. During these ride-alongs, Taylor negatively reviewed Garriga’s work and
observed that her sales of certain drugs failed to meet his expectations.
On July 10, Garriga asked Taylor to stop leering at her. When Taylor’s
conduct continued during meetings on July 16 and 17, Garriga complained of
sexual harassment to Roger Arnell, a human resources representative, who
interviewed Garriga, Taylor, and four other employees. Arnell determined that
Garriga’s story could not be corroborated. Taylor learned of Garriga’s complaint
on July 22. By that date, Taylor and Garriga had interacted eight times over the
course of three months.
Ten days later, on August 1, Taylor placed Garriga on a “coaching
worksheet,” a tool used by Novo Nordisk to evaluate employee performance and
identify skills that need improvement. The coaching worksheet required an
employee to spend more time with her supervisor. After placement on a coaching
worksheet, the employee had 60 days to improve the identified deficiencies.
Garriga never had time to improve her work because Taylor learned during a
ride-along the next day that Garriga had sponsored a dinner at the private residence
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of one of her physician clients. The dinner originally had been planned as a
farewell dinner for a physician, but Garriga and Duffy arranged to pay for the meal
as part of an informational training presentation. Both Garriga and Duffy had
attended with their boyfriends, and the wife of one of the physicians also attended.
Taylor notified Arnell about the party and expressed concern that it violated
policies of the Pharmaceutical Research and Manufacturers of America. The
policies allow employees “occasionally [to] provide meals” to doctors, but not their
spouses or other guests, “in a venue and manner conducive to informational
communication,” (e.g., “at a quiet restaurant”) so long as “the primary purpose of
the meal is a sales call, medical dialogue, or educational program.”
Taylor recommended that the company terminate Garriga. Arnell and
another representative of human resources investigated the dinner and determined
that it violated company policy because its primary purpose was something other
than an informational presentation. Human resources and the compliance
department recommended the termination of Garriga and Duffy. Sheila Sewock,
Regional Business Director for the Florida Region for Novo Nordisk,
independently reviewed the findings from the investigation and terminated Garriga
and Duffy on September 6, 2007, for violating company policy.
Garriga filed a complaint against Novo Nordisk and alleged a hostile work
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environment, 42 U.S.C. § 2000e-2(a); Fla. Stat. § 760.10(1), and retaliation, 42
U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). Novo Nordisk moved for summary
judgment in its favor. The district court entered summary judgment against
Garriga’s complaint.
II. STANDARD OF REVIEW
“We review de novo an order granting summary judgment.” Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc). We will
affirm a summary judgment “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). There is a genuine issue of material fact “if the record taken as a
whole,” and viewed in the light most favorable to the non-moving party, “could
lead a rational trier of fact to find for the nonmoving party.” Allen v. Tyson Foods,
Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks omitted).
III. DISCUSSION
Garriga raises two arguments on appeal, but both fail. She argues that a
reasonable jury could conclude that she endured a hostile work environment.
Garriga also argues that a reasonable jury could conclude that Novo Nordisk
retaliated against her by placing her on the coaching worksheet and terminating
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her. We discuss each argument in turn.
Garriga’s claim of a hostile work environment fails. To prove a prima facie
claim of a hostile work environment, an employee must subjectively perceive that
the harassment is “sufficiently severe and pervasive to alter the terms or conditions
of employment,” and that subjective perception must be objectively reasonable
based on four 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.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246
(11th Cir. 1999) (en banc). Garriga argues that Taylor’s conduct was objectively
severe and pervasive, but Mendoza establishes otherwise. Mendoza involved an
employee who shared an office area with her supervisor and alleged that over a
period of 11 months, her supervisor “‘constantly’” followed her and stared at her
“‘in a very obvious fashion,’” directed a sexually charged statement at her, and
touched her once.
Id. at 1242–43. We held that this conduct “falls well short of
the level of either severe or pervasive conduct sufficient to alter [the] terms or
conditions of employment.”
Id. at 1247. We emphasized that three of the
objective factors “clearly [were] absent,” and even the frequency of the
supervisor’s constant conduct could “not compensate for the absence of the other
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factors.” Id. at 1248. Measured against the 11 months during which Mendoza
faced daily staring and following, Garriga’s complaint fails. Taylor’s boorish
conduct, alleged to have occurred on nine days over a period of five months, is far
less severe and pervasive than even the conduct alleged in Mendoza.
Garriga’s claim of retaliation also fails. Garriga can establish a prima facie
case of retaliation by proving that she “engaged in statutorily protected activity,
[she] suffered a materially adverse action, and there was some causal relation
between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277
(11th Cir. 2008). Garriga conceded at oral argument that her placement on the
coaching worksheet alone was not a materially adverse action under Burlington
Northern & Santa Fe Railway Co. v. White,
548 U.S. 53, 68–70,
126 S. Ct. 2405,
2415–16 (2006). Garriga’s termination establishes a prima facie case of
retaliation, but Novo Nordisk articulated a legitimate, non-discriminatory
justification for her firing, which Garriga failed to rebut as pretextual. See
Goldsmith, 513 F.3d at 1277. Novo Nordisk proferred that it fired Garriga and
Duffy for violating the policies of the Pharmaceutical Research and Manufacturers
of America by sponsoring the dinner. Sewock independently reviewed Arnell’s
investigation and decided, in good faith, that the primary purpose of the dinner was
not training, which violated company policy and merited termination. See EEOC
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v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176–77 (11th Cir. 2000). Garriga failed
to present evidence that this legitimate and nondiscriminatory reason for
terminating her was false.
IV. CONCLUSION
We affirm the summary judgment in favor of Novo Nordisk.
AFFIRMED.
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