[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10014

________________________

D.C. Docket No. 8:16-cv-2419-CEH-AEP

ERIN TONKYRO,

DANA STRAUSER,

KARA MITCHELL-DAVIS,

YENNY HERNANDEZ,

Plaintiff – Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

Defendant – Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 20, 2021)

Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

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We sua sponte vacate our previous opinion and substitute the following in 

lieu thereof.

* * *

This appeal arises from a Title VII action filed by four ultrasound 

technologists at the James A. Haley VA Healthcare System (“Tampa VA”) against 

the Secretary of the Department of Veterans Affairs (“the Secretary”). All 

Plaintiffs allege that their supervisors and coworkers retaliated against them and 

subjected them to a hostile work environment because they engaged in protected 

Equal Employment Opportunity Commission (“EEOC”) activity. One Plaintiff 

also alleges that she was subjected to a hostile work environment based on her sex. 

Plaintiffs appeal from the District Court’s grant of summary judgment in favor of 

the Secretary. 

Because two intervening decisions—one from the Supreme Court and one 

from our Court—changed the law applicable to Plaintiffs’ discrete retaliation 

claims and retaliatory hostile work environment claims, we remand those claims to 

the District Court with the instruction that it analyze the claims consistent with the 

intervening decisions. Because the intervening decisions did not, in our judgment, 

affect the resolution of the sex-based hostile work environment claim in this case, 

we consider that claim alone and affirm the District Court’s decision to enter 

summary judgment for the Secretary. 

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I.

In 2012, Plaintiffs Erin Tonkyro, Kara Davis, and Dana Strauser filed EEOC

complaints alleging that they were sexually harassed by supervisors and 

radiologists at the Tampa VA. An Administrative Investigation Board was formed 

to investigate the complaints, and Plaintiff Yenny Hernandez testified in support of 

the other three Plaintiffs. The complaints were eventually settled with the VA in

September 2013. 

In July 2014, Tonkyro, Davis, and Strauser filed formal EEOC complaints 

alleging retaliation for their having filed previous EEOC complaints and the 2013 

settlements. Hernandez filed a formal EEOC complaint in September 2016 

alleging sexual harassment and retaliation for her participation in the 2012 EEOC

proceedings. 

On August 23, 2016, Plaintiffs filed the present action against the Secretary.

Plaintiffs’ third amended complaint alleged three counts. Count One alleged that 

Plaintiffs’ supervisors retaliated against them because of their EEOC complaints 

and settlements in violation of 42 U.S.C. § 2000e et seq.. Count Two alleged that 

Plaintiffs’ supervisors and coworkers subjected them to a hostile work 

environment in retaliation for their EEOC activity. And Count Three alleged a 

sex-based hostile work environment claim on behalf of Hernandez. 

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A.

Because we decide only whether Hernandez’s sex-based hostile work 

environment claim should have survived summary judgment, and remand the other 

claims to the District Court for reconsideration, we present only the facts relating 

to that claim. 

On August 27, 2015, Hernandez’s co-worker Angela Geraci pulled up her 

blouse to show Hernandez the outline of her breasts through her undershirt. A few 

days later, Geraci—during a conversation with Hernandez about transvaginal 

ultrasounds—asked Hernandez “Why don’t you just let me borrow your vagina?” 

On September 3, 2015, Geraci approached Hernandez and asked “Is the vagina 

here?,” and made a gesture of inserting something into her vagina. Hernandez 

reported Geraci’s behavior to her supervisor Scott Petrillo, who conducted a fact 

finding and gave both Geraci and Hernandez verbal warnings.

On September 10, 2015, Geraci stated that she enjoyed working at the 

Tampa VA, but could not stand the fact that she had to work with “dirty vaginas.” 

On September 18, 2015, Geraci gave Hernandez “an angry, hostile look.” On 

September 21, 2015, Geraci refused to speak with Hernandez when Hernandez 

approached her about a patient. 

At some time in October 2015, Geraci gave Hernandez a high five and 

“chest bumped” her. On multiple occasions in October and November 2015, 

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Hernandez saw Geraci scan her own abdomen with an ultrasound transducer. In 

November 2015, Geraci told Hernandez, in a “condescending and hostile” tone, to 

use Hernandez’s own assigned room. In December 2015, Geraci referred to a 

radiology resident as “Dark Chocolate” and described “all the things she would 

do” to attract him. 

In December 2015 and January 2016, Geraci gave Hernandez “dirty looks,” 

made disparaging remarks about Hernandez’s eating disorder, and told Hernandez 

“Oh my God, you are obsessed over the stupidest shit ever.” On multiple 

occasions, Geraci gave Hernandez disgusted looks while Hernandez was eating, 

and, on one occasion, said “I can’t believe you’re going to eat all that.”

In January 2016, Geraci embraced Hernandez and kissed her on the cheek 

after she told Geraci that her patient had cancelled an appointment. On another 

occasion, Geraci caused Hernandez to be late for an appointment with a patient 

because Geraci took 50 minutes to perform an ultrasound that should have taken 30 

minutes. 

In February 2016, Geraci entered a room in which Hernandez was 

performing an ultrasound and demanded that Hernandez leave the room. On 

February 17, 2016, while Geraci was chaperoning Hernandez for a transvaginal 

ultrasound, Geraci interrupted Hernandez and told her to “hurry up.” On February 

19, 2016, Geraci told Hernandez, in an angry tone, that it was her responsibility to 

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close the examination rooms when she was done. That same day, Geraci asked 

Hernandez, “in a condescending and angry tone,” whether she completed her 

outpatient requests. Hernandez reported these incidents to Petrillo, but Petrillo 

took no action. 

In March 2016, Hernandez observed Geraci embrace Brent Burton, a male 

ultrasound technologist, in an inappropriate manner. Hernandez also observed 

Geraci sit on Burton’s lap and wrap her arms around his neck. On multiple 

occasions in 2016, Geraci pulled up her shirt to reveal her abs to Hernandez despite 

knowing that Hernandez did not want to see them. When Hernandez reported 

Geraci’s behavior to Petrillo, he responded that he had more pressing issues to deal 

with. 

Finally, Hernandez alleged that Petrillo held her to a different standard than 

males in the department. According to Hernandez, female ultrasound technologists 

were given a greater volume of work and less time off than male ultrasound 

technologists. On June 12, 2015, for example, Petrillo denied Hernandez’s request 

for leave while granting the request of a more junior male employee. 

B.

On November 7, 2018, the District Court entered summary judgment in 

favor of the Secretary on all counts. On Count One—Plaintiffs’ retaliation 

claims—the Court found that Plaintiffs failed to show that the conduct they 

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complained of would not have occurred but for Plaintiffs’ EEOC activity. The 

Court also found that the Secretary offered nonretaliatory explanations for the 

conduct which Plaintiffs failed to show were pretextual.1

 On Counts Two and 

Three—Plaintiffs’ retaliatory hostile work environment claims and Hernandez’s 

sex-based hostile work environment claim, respectively—the Court found that the 

conduct complained of did not satisfy the “severe or pervasive” standard we 

articulated in Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012). This appeal 

followed.

II.

We review a district court’s grant of summary judgment de novo. 

Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). In doing so, we view the

evidence in the light most favorable to, and draw all reasonable inferences in favor 

of, the non-moving party. Id. Summary judgment is proper when the moving 

party is entitled to judgment as a matter of law because of a lack of any genuine 

issue of material fact. Fed. R. Civ. P. 56(c).

1 We acknowledge that the District Court may have found that the conduct underlying 

some of Plaintiffs’ retaliation claims failed to rise to the requisite level of material adversity 

under Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 

(2006). To the extent some of the claims were dispatched on that basis, remand would not be 

necessary since the Supreme Court’s decision in Babb v. Wilkie, 140 S. Ct. 1168, 206 L. Ed. 2d 

432 (2020), did not affect that particular requirement. Nonetheless, we find it difficult to discern 

whether the District Court dismissed any claims under Burlington Northern and we therefore 

remand the retaliation claims wholesale. 

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III.

After the District Court entered summary judgment in this case, two 

intervening decisions—one from this Court and one from the Supreme Court—

changed the law applicable to Plaintiffs’ discrete retaliation claims and their 

retaliatory hostile work environment claims in two respects. First, the Supreme 

Court in Babb v. Wilkie, 140 S. Ct. 1168, 206 L. Ed. 2d 432 (2020)—as we just 

recognized in Babb v. Secretary, Department of Veterans Affairs, No. 16–16492, 

2021 WL 1219654 (11th Cir. Apr. 1, 2021)—undermined to the point of

abrogation our prior panel precedent and thereby established that retaliation claims 

like Plaintiffs’ that are brought under Title VII’s federal-sector provision are not 

subject to the but-for causation standard that the District Court applied below. 

Second, our decision in Monaghan v. Worldpay U.S. Inc., 955 F.3d 855 (11th Cir. 

2020), clarified that retaliatory hostile work environment claims are properly 

analyzed under the standard articulated by the Supreme Court in Burlington 

Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006),

rather than the more stringent “severe or pervasive” standard that the District Court 

applied. We remand these claims to the District Court for reconsideration in light 

of these intervening decisions, but we affirm the entry of summary judgment as to 

Hernandez’s sex-based hostile work environment claim, the resolution of which 

was not affected by the intervening decisions. 

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Part III.A explains the way the Supreme Court in Babb changed the 

causation standard applicable to Title VII claims against federal employers. 

Part III.B explains Monaghan’s effect on the standard applicable to retaliatory 

hostile work environment claims. And part III.C analyzes Hernandez’s sex-based 

hostile work environment claim. 

A.

Title VII contains separate provisions for private and federal employers, and 

although it is generally assumed that Title VII’s federal-sector provision was 

intended “to make Title VII applicable in the federal workplace to the same extent 

that it was already applicable in the non-federal workplace,” Llampallas v. Mini–

Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998), there are significant 

textual differences between the provisions that we have until very recently ignored. 

The difference that concerns us today has to do with the way the provisions speak 

about the necessary causal relationship between an employee’s protected 

characteristics and the adverse employment actions taken against her. For present 

purposes, we are concerned only with Title VII’s cause of action for discrimination 

based on an employee’s EEOC activity—i.e., retaliation—and not with substantive 

discrimination based on “race, color, religion, sex, or national origin.”

In the private-sector context, Title VII makes it unlawful for an employer to 

discriminate against an employee “because he has opposed any practice made an 

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unlawful employment practice by this subchapter, or because he has made a 

charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or hearing under this subchapter.” § 2000e–3(a) (emphasis added). 

The Supreme Court in University of Texas Southwestern Medical Center v. Nassar

interpreted § 2000e–3(a)’s use of the word “because” as requiring “proof that the 

desire to retaliate was the but-for cause of the challenged employment action.” 

570 U.S. 338, 352, 133 S. Ct. 2517, 2528 (2013). In doing so, it leaned on a 

previous decision interpreting the Age Discrimination in Employment Act of 1967 

(the “ADEA”), which held that “the ordinary meaning of the ADEA’s requirement 

that an employer took adverse action ‘because of’ age is that age was the ‘reason’ 

that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 

176, 129 S. Ct. 2343, 2350 (2009). 

Now for Title VII’s federal-sector provision, which states:

All personnel actions affecting employees or applicants for 

employment . . . [in enumerated positions within the federal 

government] . . . shall be made free from any discrimination based on 

race, color, religion, sex, or national origin.2

§ 2000e–16(a) (emphasis added). 

2 It may be noted that § 2000e–16(a) does not expressly provide a cause of action for 

retaliation. Because the Secretary does not raise the issue, we do not pass judgment on whether 

§ 2000e–16(a) nonetheless provides such a cause of action implicitly. See Gomez-Perez v. 

Potter, 553 U.S. 474, 488 (2008) (holding that “discrimination based on age” as used in the 

ADEA includes “retaliation for complaining about age discrimination”). 

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The Supreme Court has not directly decided whether the federal-sector 

provision requires the same level of causation as the private-sector provision, and 

although the textual differences between the provisions are significant, we 

implicitly assumed in Trask v. Secretary, Department of Veterans Affairs, 822 F.3d 

1179 (11th Cir. 2016), that the differences were immaterial as far as causation was 

concerned. Citing Nassar, we said that “Title VII retaliation claims require proof 

that ‘[the] protected activity was a but-for cause of the alleged adverse action by 

the employer.’” Trask, 822 F.3d at 1194 (quoting Nassar, 570 U.S. at 362, 133 S. 

Ct. at 2534) (alteration in original). We ignored the fact that Trask’s status as a 

federal employee meant her retaliation claim was governed by § 2000e–16(a) 

rather than § 2000e–3(a). We implicitly held the same with respect to Trask’s 

claim under the ADEA, which like Title VII, has both federal-sector and privatesector provisions, the language of which substantially tracks Title VII’s 

provisions.3

 Id. at 1191. 

3 The ADEA’s private-sector provision provides:

It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual's age.

29 U.S.C. § 623(a)(1) (emphasis added). 

The federal-sector provision, by contrast, states:

All personnel actions affecting employees or applicants for employment who are at 

least 40 years of age . . . shall be made free from any discrimination based on age.

§ 633a(a) (emphasis added).

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A few years later in Babb v. Secretary, Department of Veterans Affairs, 743 

Fed. App’x 280 (11th Cir. 2018), we finally noted that the textual differences 

between Title VII’s private- and federal-sector provisions—“because of” versus 

“free from any”—might be meaningful. “[I]f we were starting from scratch,” we 

said, “we might agree” that a more lenient causation standard applied to federalsector retaliation claims. Babb, 743 Fed. App’x at 290. Because Trask stood in 

our way as binding precedent, however, we were “constrained to hold that the 

district court did not err” in applying a but-for standard to Babb’s retaliation claim

against the VA Secretary. Id. We said the same about Babb’s federal-sector

ADEA claim. Id. at 287–88. 

The Supreme Court then granted cert on the ADEA issue only. Babb v. 

Wilkie, 139 S. Ct. 2775, 204 L. Ed. 2d 1156 (2019). The question before the Court 

was: 

Whether the federal-sector provision of the Age Discrimination in 

Employment Act of 1967, which provides that personnel actions 

affecting agency employees aged 40 years or older shall be made free 

from any “discrimination based on age,” 29 U.S.C. § 633a(a), requires 

a plaintiff to prove that age was a but-for cause of the challenged 

personnel action.

Id. According to the Court, the plain meaning of “made free from any 

discrimination based on age” goes further than just imposing liability when age is a 

but-for cause of the personnel action. Babb v. Wilkie, 140 S. Ct. 1168, 1171

(2020). Instead, it prohibits all but those personnel actions that are “untainted by 

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any consideration of age.” Id. As long as age discrimination “plays any part in the 

way a decision is made,” then the decision violates the ADEA. Id. at 1174. 

On remand from the Supreme Court, we considered what bearing the 

Supreme Court’s ADEA analysis had on the substantially identical language of 

Title VII’s federal-sector provision, and specifically whether the Supreme Court’s 

decision undermined to the point of abrogation our decision in Trask. We 

concluded that “the Supreme Court’s decision in Babb’s case undermined Trask to 

the point of abrogation and that the standard that the Court articulated there now 

controls cases arising under Title VII’s nearly identical text.” Babb, 2021 WL 

1219654, at *1. We therefore remanded to the district court with instructions to 

analyze Babb’s retaliation claim under the more lenient causation standard 

articulated by the Supreme Court. Id. 

We do the same here. Because the District Court required Plaintiffs to prove 

that their protected activity was a but-for cause of the adverse actions against them, 

we vacate the entry of summary judgment and remand to the District Court to 

analyze the claims consistent with the standard articulated in Babb. 

B.

Title VII prohibits the creation of a hostile work environment in retaliation 

for an employee’s engagement in protected activity. Gowski, 682 F.3d at 1312. 

When we first recognized a cause of action for retaliatory hostile work 

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environment in Gowski, we said such claims are analyzed under the same standard 

as substantive hostile work environment claims under § 2000e–2(a)—that is, a 

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.” Id. at 1311 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 

21, 114 S. Ct. 367, 370 (1993)). 

It is understandable, then, that the District Court below applied the “severe 

or pervasive” standard to Plaintiffs’ retaliatory hostile work environment claims. 

After the District Court entered its order, however, we issued our opinion in 

Monaghan rejecting Gowski’s “severe or pervasive” standard as inconsistent with 

the Supreme Court’s decision in Burlington Northern and our earlier decision in 

Crawford (applying Burlington Northern’s retaliation standard). 955 F.3d at 862. 

Instead, we said retaliatory hostile work environment claims, like retaliation claims 

based on discrete acts, prevail if the conduct complained of “well might have 

dissuaded a reasonable worker from making or supporting a charge of 

discrimination.” Id. at 862–63 (quoting Burlington Northern, 548 U.S. at 68, 126 

S. Ct. at 2415).

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Because the District Court analyzed Plaintiffs’ retaliatory hostile work 

environment claims under Gowski, we vacate that part of the judgment and direct 

the Court to instead apply Burlington Northern on remand. 

C.

The intervening decisions that affected the disposition of Plaintiffs’ discrete 

retaliation claims and retaliatory hostile work environment claims have no bearing 

on Hernandez’s sex-based hostile work environment claim. 

While we have often said that substantive hostile work environment claims 

require proof that the hostile work environment was “based on” the employee’s 

protected characteristic, see, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 

F.3d 798, 808 (11th Cir. 2010), it is evident that we have not meant that such 

claims require but-for causation. Congress expressly precluded a but-for 

requirement in the substantive discrimination context when it amended § 2000e–2 

by adding a subsection providing that “an unlawful employment practice is 

established when the complaining party demonstrates that race, color, religion, sex, 

or national origin was a motivating factor for any employment practice, even 

though other factors also motivated the practice.” § 2000e–2(m); Civil Rights Act 

of 1991, Pub. L. No. 102–166, § 107(a), 105 Stat. 1071, 1075 (1991). When we 

have said that an employer’s actions must have been “based on” the employee’s 

protected characteristic, therefore, we have really meant that the actions must have 

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been “motivated by” that characteristic. We have applied the same standard 

regardless of whether the claim arises under Title VII’s private- or federal-sector 

provisions. See Trask, 822 F.3d at 1196 (holding that plaintiffs failed to show a 

hostile work environment was “based on their protected status” because “there is 

no evidence that the[ VA management’s] . . . alleged hostility was in any way 

motivated by a discriminatory animus regarding the plaintiffs’ age or gender”).

We perceive no material difference between the motivating-factor standard 

we have applied to substantive hostile work environment claims and the standard 

articulated by the Supreme Court in Babb. Although the Babb dissent asserts that 

the Court’s standard “imposes an even lower bar” than motivating factor, we are 

unconvinced. Babb, 140 S. Ct. at 1182 n.2 (Thomas, J. dissenting). Notably, 

under the Court’s standard, it is not enough to trigger liability that the employer 

simply considered the employee’s protected characteristic; that characteristic must 

still “play[] [a] role in the final decision.” Id. at 1174 n.3, 1174. It is difficult to 

imagine how an employee’s protected characteristic could play a part in the final 

decision without being a motivating factor in that decision. Babb, therefore, did 

not alter the causation standard we apply to substantive hostile work environment 

claims against federal employers. 

Our decision in Monaghan likewise left untouched the standard we apply to 

substantive hostile work environment claims as opposed to those based on 

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retaliation. See Monaghan, 955 F.3d at 861. Substantive hostile work 

environment claims still require plaintiffs to 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.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 

(11th. Cir. 2002) (quoting Harris, 510 U.S. at 21, 114 S. Ct. at 370). That 

intimidation, ridicule, and insult must also bear “the necessary sexual or other 

gender-related connotations to be actionable sex discrimination.” Mendoza v. 

Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999) (en banc). It is on these two 

requirements that Hernandez’s claim founders. 

To be sufficiently “severe or pervasive,” the employer’s actions “must result 

in both an environment that a reasonable person would find hostile or abusive and 

an environment that the victim subjectively perceive[s] . . . to be abusive.” Miller, 

277 F.3d at 1276 (quotation marks omitted). “In evaluating the objective severity 

of the harassment,” we look to the totality of the circumstances, including: “(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. 

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The standards for judging hostility are intended to be “sufficiently 

demanding to ensure that Title VII does not become a ‘general civility code.’” 

Faragher v. Cty. of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998). 

“Properly applied, they will filter out complaints attacking the ordinary tribulations 

of the workplace, such as the sporadic use of abusive language, gender-related 

jokes, and occasional teasing.” Id. (internal quotation marks omitted). “[M]ere 

utterance of an . . . epithet which engenders offensive feelings in an employee does 

not sufficiently affect the conditions of employment to implicate Title VII.” 

Harris, 510 U.S. at 21, 114 S. Ct. at 370 (quotation marks omitted) (citation 

omitted). 

In addition to establishing that the employer’s actions were sufficiently 

“severe or pervasive,” a plaintiff must show that the actions were based on her sex

rather than some other unprotected characteristic. Mendoza, 195 F.3d at 1245; see 

also Harris, 510 U.S. at 21, 114 S. Ct. at 370. We have noted that “Title VII does 

not prohibit profanity alone, however profane . . . [nor] harassment alone, however 

severe and pervasive. Instead, Title VII prohibits discrimination, including 

harassment that discriminates based on a protected category such as sex.” Baldwin 

v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301–02 (11th Cir. 2007). 

Hernandez’s sexual harassment claim is based primarily on Geraci’s 

conduct. Hernandez complains of several incidents: Geraci pulled up her blouse to 

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show Hernandez the outline of her breasts through her undershirt; Geraci made 

inappropriate jokes to Hernandez, using the word “vagina”; Geraci made a gesture 

of inserting something into her vagina to Hernandez; Geraci gave Hernandez an 

angry look; Geraci ignored Hernandez on multiple occasions; Geraci gave 

Hernandez a “chest bump”; Geraci scanned her own abdomen with an ultrasound 

transducer in Hernandez’s presence, and revealed her abs to Hernandez multiple 

times; Geraci spoke to Hernandez in a “condescending and hostile tone”; Geraci

insulted Hernandez about her eating disorder; Geraci embraced Hernandez and 

kissed her on the cheek; and Hernandez observed Geraci interacting with a male 

coworker in an inappropriately flirtatious manner. Hernandez also bases her claim 

on Petrillo’s failure to remedy the sexually hostile work environment created by 

Geraci.

As an initial matter, most of Geraci’s conduct lacks “the necessary sexual or 

other gender-related connotations to be actionable sex discrimination.” Mendoza, 

195 F.3d at 1247. In making this inquiry, we are guided by the “common-sense 

rule that the context of offending words or conduct is essential to the Title VII 

analysis.” Id. at 810. 

Consider the context in which Geraci revealed the outline of her breasts to 

Hernandez. The incident occurred during a conversation about a male doctor to 

whom Geraci was attracted. Hernandez told Geraci that the doctor preferred “big 

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breasts,” and Geraci proceeded to lift up her shirt to prove that she was the doctor’s 

type. Nothing in the record allows the conclusion that Geraci’s conduct had

anything to do with Hernandez’s sex. 

Similarly, the context surrounding Geraci’s inappropriate touching of 

Hernandez shows that the touching was not sex based. Geraci “chest bumped” 

Hernandez after learning of her employment benefits and giving Hernandez a highfive. Nothing in the record suggests that the bump was anything more than a mere 

celebratory gesture, as the context and the definition of the phrase suggest. See 

Macmillan Dictionary, Chest Bump, 

https://www.macmillandictionary.com/us/dictionary/american/chest-bump (last 

accessed Dec. 29, 2020) (defining “chest bump” as “an action in which two people 

bump their chests together, usually as a celebration”). Geraci’s decision to 

embrace Hernandez and kiss her on the cheek was similar—Geraci did so after 

Hernandez told her that Geraci’s patient cancelled an appointment.

Likewise, the record shows that Geraci’s use of the word “vagina” occurred 

first in the context of a discussion about transvaginal ultrasounds. Then, 

apparently realizing that her talk of vaginas bothered Hernandez, Geraci began 

teasing Hernandez with the word. “Even gender-specific terms cannot give rise to 

a cognizable Title VII claim if used in a context that plainly has no reference to 

gender.” Reeves, 594 F.3d at 810. Although the word “vagina” is plainly genderUSCA11 Case: 19-10014 Date Filed: 04/20/2021 Page: 20 of 23
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specific, Geraci’s use of it was not gender-derogatory. Compare id. at 811–12 (a 

jury could find that the use of the words “whore,” “bitch,” and “cunt,” together 

with “vulgar discussions of women’s breasts, nipples, and buttocks” “contributed 

to conditions that were humiliating and degrading to women on account of their 

gender”); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 

S. Ct. 998, 1002 (1998) (“We have never held that workplace harassment, even 

harassment between men and women, is automatically discrimination because of 

sex merely because the words used have sexual content or connotations.”). 

Finally, there is no evidence suggesting that the angry looks, harsh words,

and silent treatment that Geraci gave Hernandez were influenced by Hernandez’s 

sex. On the contrary, the record suggests that Geraci was angry at Hernandez 

because Hernandez reported Geraci for sexual harassment.

Even if Geraci’s conduct was based on Hernandez’s sex, Hernandez’s claim 

would still fail because the conduct is insufficiently severe or pervasive to alter the 

terms and conditions of Hernandez’s employment. “We proceed with common 

sense, and an appropriate sensitivity to social context, to distinguish between 

general office vulgarity and the conduct which a reasonable person in the 

plaintiff’s position would find severely hostile or abusive.” Reeves, 594 F.3d at 

811 (quotation marks omitted) (alterations adopted). 

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In Mendoza, we said that a male supervisor’s conduct was not threatening or 

humiliating to a female employee when that conduct included telling the employee 

he was “getting fired up,” making sniffing sounds while staring at the employee’s 

crotch, brushing his hip against the employee’s hip, and following the employee 

around the workplace. 195 F.3d at 1248–49. 

In Johnson v. Booker T. Washington Broadcasting Service, Inc., by contrast, 

we held that an employee was sexually harassed when her male coworker 

repeatedly told her she had a sexy voice, winked at her, exposed the imprint of his 

private parts to her through his pants, gazed at her body in a sexual manner, 

repeatedly attempted to massage her shoulders, rubbed his body parts against her, 

and asked her questions about her sex life, among other things. 234 F.3d 501, 506 

(11th Cir. 2000). 

Geraci’s conduct toward Hernandez is significantly less severe than the 

conduct at issue in Johnson, and likely less severe than the insufficiently severe 

conduct in Mendoza, as well. Unlike those cases, some of Geraci’s conduct was 

merely witnessed by Hernandez rather than directed at her—namely, Geraci 

scanning her own abdomen, embracing a male coworker, and sitting on his lap. 

And the physical conduct that Geraci did direct toward Hernandez—pulling up her 

shirt, chest bumping, hugging, and kissing Hernandez—is, as explained above,

qualitatively different from the sexually charged conduct in Johnson and Mendoza. 

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In sum, Geraci’s conduct is of an entirely different nature from the sexually 

predatory conduct at issue in Johnson and Mendoza. Such conduct is insufficiently 

severe or pervasive to alter the terms and conditions of Hernandez’s employment. 

Finally, Hernandez alleges that Petrillo held her to a different standard than 

similarly situated males in the ultrasound department. In particular, Hernandez 

complains that Petrillo denied her request for leave, while granting the request of a 

male employee with less seniority. This, however, is a quintessential “isolated 

incident[]” of the sort that is insufficient to alter the terms and conditions of 

employment. Faragher, 524 U.S. at 788, 118 S. Ct. at 2283. 

For the foregoing reasons, the District Court properly granted summary 

judgment for the Secretary on Hernandez’s sex-based hostile work environment 

claim.

IV. 

We vacate the District Court’s entry of summary judgment with respect to 

Plaintiffs’ discrete retaliation claims and retaliatory hostile work environment 

claims and remand with instructions that the Court reconsider those claims in light 

of Babb and Monaghan. We affirm the District Court’s decision to enter summary 

judgment on Hernandez’s sex-based hostile work environment claim.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

WITH INSTRUCTIONS.

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