United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's motion for
summary judgment. (Doc. 20). The parties have filed briefs
and/or evidentiary materials in support of their respective
positions, (Docs. 20, 24, 25),  and the motion is ripe for
resolution. After careful consideration, the Court concludes
that the motion is due to be granted.
to the pro se complaint, (Doc. 1), the plaintiff was
employed by the defendant for about one week in April 2015.
The defendant and the Court construe the complaint as
asserting two claims, both under Title VII: one for hostile
work environment and one for retaliation. The plaintiff in
his response asserts no other.
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The moving party may meet its burden in either of
two ways: (1) by “negating an element of the non-moving
party's claim”; or (2) by “point[ing] to
materials on file that demonstrate that the party bearing the
burden of proof at trial will not be able to meet that
burden.” Id. “Even after
Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.”
Id.; accord Mullins v. Crowell, 228 F.3d
1305, 1313 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
the party moving for summary judgment fails to discharge the
initial burden, then the motion must be denied and the court
need not consider what, if any, showing the non-movant has
made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
however, the movant carries the initial summary judgment
burden ..., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick, 2 F.3d at 1116.
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ' the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may … consider the
fact undisputed for purposes of the motion ….”).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003).
is no burden on the Court to identify unreferenced evidence
supporting a party's position. Accordingly, the Court
limits its review to the exhibits, and to the specific
portions of the exhibits, to which the parties have expressly
cited. Likewise, “[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment, ” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995), and
the Court accordingly limits its review to those arguments
the parties have expressly advanced.
Hostile Work Environment.
plaintiff's claim is based on being touched by a male
co-worker twice on a single work shift. The first time, the
co-worker bumped or tapped the plaintiff's buttocks with
his hand one time while walking past the plaintiff; the
incident lasted between half a second and a full second.
(Doc. 20-2 at 8-9). Three or four hours later, as the
co-worker walked hurriedly past the plaintiff, he thumped the
plaintiff's crotch; again, the incident lasted between
half a second and a full second, and the co-worker went right
back upstairs. (Id. at 7, 15-17).
fourth element of a claim for sexual harassment is that
“the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create a
discriminatorily abusive working environment.”
Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238,
1244 (11th Cir. 2004). The defendant argues that
the plaintiff cannot satisfy this test.
whether the harassment was sufficiently severe or pervasive
involves both an objective and a subjective component.
[citation omitted] In determining the objective element, a
court looks to all the circumstances, including the frequency
of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” McCann v.
Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008)
(internal quotes omitted). “[I]solated incidents
(unless extremely serious) will not ...