In Bird v. University of Florida Board of Trustees et al, No. 22-12061, 2026 WL 3060648 (11th Cir. Oct. 13, 2026), the court, inter alia, affirmed the lower court’s award of summary judgment on plaintiff’s sex-based hostile work environment claim.
From the decision:
Sex-based harassment that is “[e]ither sever[e] or pervasive[ ] is sufficient to establish a violation of Title VII.” Reeves, 594 F.3d at 808. But for harassment to be 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 perceives to be abusive.” Tonkyro, 995 F.3d at 837 (alterations and quotation marks omitted). Bird did subjectively perceive her working environment to be abusive.
What is disputed is the objective component: whether a reasonable person would also find the environment to be hostile or abusive. We look at the totality of the circumstances to determine the objective severity of the harassment, “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. (quotation marks omitted). And the “intimidation, ridicule, and insult” that creates a hostile work environment “must also bear the necessary sexual or other gender-related connotations to be actionable sex discrimination.” Id. (quotation marks omitted).
Excluding conduct that was not sex-based and conduct that Bird herself didn’t see or hear, that leaves only the following: (1) Stringer told Bird to give surgeries “to the guys,”6 (2) Stringer showed Bird a photo of female medical residents cooking with pots and pans in his kitchen,7 (3) Stringer patted a female resident on the head and suggested that she was not smart,8 (4) Stringer said he wondered about how a prospective female resident would “roll[ ] in the hay,”9 (5) Stringer told Bird her request for an “equal opportunity” to practice urology was “ridiculous,”10 (6) Stringer offered to let Bird move her practice to the Haile Plantation family practice clinic so she could be close to her children,11 and (7) Stringer yelled at Bird in front of a female undergraduate student in April 2016 and came so close to Bird that his spittle hit her face and she felt threatened.12
Considering the totality of the circumstances, Bird failed to show sex-based harassment that was severe or pervasive enough to alter the terms and conditions of her employment and to create a discriminatorily abusive working environment. See Miller, 277 F.3d at 1275. The seven incidents of Stringer’s comments or conduct occurred during the three years Bird was doing clinical work, which is an average of one incident or comment every five months. That is not frequent enough to be pervasive harassment that altered the terms and conditions of her employment.
The court contrasted the facts of this case (one incident every five months) with those of another, in which the court held that 15 separate, serious incidents over four months (an average of just under one a week) did substantiate a claim of harassment.