Murdoch v. Medjet Assistance, LLC (294 F. Supp. 3d 1242, 2018)

VIRGINIA EMERSON HOPKINS, United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Darlene Murdoch ("Ms. Murdoch") initiated this employment case against her former employer Medjet Assistance, LLC ("Medjet") and its Chief Executive Officer, Roy Berger ("Mr. Berger") on April 21, 2017. (Doc. 1). Ms. Murdoch generally maintains that Mr. Berger sexually harassed her for a period of 6 to 7 months and that Medjet fired her in retaliation for reporting his harassment to Medjet (in a letter from her lawyer) and subsequently filing an EEOC charge about that same alleged conduct. Ms. Murdoch's complaint contains both federal and state law claims: (1) Title VII sexual harassment against Medjet (Count One); (2) Title VII retaliation against Medjet (Count Two); (3) negligent and/or wanton hiring, retention, training, and supervision against Medjet (Count Three); (4) invasion of privacy against both Mr. Berger and Medjet (Count Four); (5) assault and battery against both Mr. Berger and Medjet (Count Five); and (6) tort of outrage against both Mr. Berger and Medjet (Count Six).

Pending before the Court is Defendants' Motion for Summary Judgment (doc. 19) (the "Motion") filed on March 10, 2017. The Court has reviewed the parties' filings offered in support of and opposition to the Motion. (Docs. 20, 21, 25-28). For the reasons set out below, the Motion is GRANTED IN PART and otherwise DENIED or TERMED as MOOT .

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to 'come forward with specific facts showing that there is a genuine issue for trial.' " International Stamp Art, Inc. v. U.S. Postal Service , 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

III. STATEMENT OF FACTS

A. Background Facts About Medjet and Mr. Berger

Medjet operates a membership program that provides air medical transport and related services for members who become ill or injured while traveling. AF No. 1.1. The Birmingham-based company employs approximately 24 people. AF No. 1.2. Mr. Berger is Medjet's President and Chief Executive Officer. AF No. 1.3. As CEO of Medjet, Mr. Berger has ultimate hiring and firing authority. AAF No. 1.1. Mr. Berger has a reputation within Medjet of being a difficult boss. AAF No. 2.1.

B. Ms. Murdoch's Employment with Medjet

Ms. Murdoch was employed by Medjet as its Assistant Controller from August 2014 until August 28, 2015. AF No. 1.4. When Ms. Murdoch began her employment with Medjet, she reported to Michelle Lowery ("Ms. Lowery"), who was employed as the Controller. AF No. 2.1. As the Assistant Controller, Ms. Murdoch was responsible for accounts payable, accounts receivable, preparation of the daily sales report ("DSR"), reconciliation of the DSR on a monthly basis and other duties as needed to assist the Controller. AF No. 2.2. The preparation and reconciliation of the DSR was one of Ms. Murdoch's primary responsibilities. AF No. 2.3.

Ms. Lowery separated from employment with Medjet in mid-December of 2014, leaving Medjet without a Controller for approximately a month. AF No. 3.1. During that month, Ms. Murdoch took on additional responsibilities and reported directly to and worked more closely with Mr. Berger. AF No. 3.2. Ms. Murdoch performed her duties satisfactorily during that time period, and Mr. Berger decided to give her a pay increase to begin 2015 based upon her willingness to step in as needed after Ms. Lowery's unexpected departure. AF No. 3.3.

On January 12, 2015, Mona Roy (hereinafter "Ms. Roy") became employed as the Controller for Medjet. AF No. 4.1. Ms. Roy had previously been employed by Medjet and, on January 12, 2015 (doc. 21-1 at 4 at 12), was brought back to help restore order to the company's accounting functions, which had suffered due to Ms. Lowery's performance and departure. AF No. 4.2. When Ms. Roy was rehired, it was expected that she would serve as the Controller for a couple of years to supervise Ms. Murdoch and eventually train Ms. Murdoch to take over her duties. AF No. 4.2.

C. Medjet's Disciplinary Policy

Concerning Medjet's disciplinary policy, Ms. Roy testified:

The discipline policy is to document errors, to discuss them with the employee, and when it is of sufficient nature, document it with the employee and have them sign it. Usually there are two people involved. And then termination if the behavior continues or [problems with] performance continues.

(Doc. 21-1 at 8 at 25-26).

Whitney Kerr ("Ms. Kerr"), Mr. Berger's Executive Assistant (doc. 26-5 at 3 at 8), testified that she does not believe that Medjet has "a written policy for discipline." (Doc. 26-5 at 9 at 31). Ms. Kerr indicated that "it's usually two days off without pay if you are caught doing something that was wrong or you have not done something that you were supposed to do." Id.

Mr. Berger mentioned the use of suspensions in the context of disciplining Ms. Roy. More specifically, Mr. Berger disciplined Ms. Roy once recently and "[t]hrough the years, [he disciplined her]....[p]robably three or four times." (Doc. 21-2 at 21 at 77). In direct response to the question from opposing counsel about whether he recalled, "what the punishment was or would have been?" Mr. Berger stated, "[i]t would have been a couple of days suspension." (Doc. 21-2 at 21 at 77).

His counsel then asked Mr. Berger whether he meant "the one time or other times?" Id. Mr. Berger then modified his prior response with a more specific answer for the most recent time and indicated he had no recollection of what discipline he used for the other instances:

I'm talking about the one time was a couple of days suspension recently. Yes. The other times I have no recollection.

Id.

D. Ms. Murdoch's Job Performance Issues and Discharge

As Ms. Roy stated in her declaration, "[v]ery soon after [she] began supervising [Ms.] Murdoch, [she] recognized that there were deficiencies in [Ms. Murdoch's] performance." (Doc. 21-4 at 2 ¶ 4). More specifically, Ms. Murdoch struggled with prepaid memberships and timely completing the DSR, and she made numerous mistakes, including a major payroll error and an overstatement of cash in a monthly closing. Id.

Ms. Roy testified that she had "multiple discussions" with Ms. Murdoch "[a]bout performance issues" and that she "put a lot of notes in [Ms. Murdoch's] file." (Doc. 21-1 at 8 at 25). According to Ms. Roy, Ms. Murdoch "didn't have the attention to detail that [the Assistant Controller] position requires." (Id. at 11 at 37). Ms. Roy also indicated that Ms. Murdoch lacked initiative. (See id. ("There also has to be initiative to look beyond just the immediate.") ).

In April of 2015, Ms. Roy realized that Ms. Murdoch "had not applied a payment to a customer, thereby overstating the cash by $15,000 and potentially shorting people on a bonus." (Doc. 21-1 at 7 at 24); (see also id. at 20 at 73-74 ("The fact that she didn't realize that, because she balanced the credit cards, that she could have overstated cash by $15,000."); (id. at 74 ("It was a Daily Sales Report error that could have impacted all of the employees within the organization.") ); (Doc. 21-3 at 92 ("MEMO FOR FILE-Darlene Murdoch" from Ms. Roy dated April 20, 2015, pertaining to Ms. Murdoch's failure to "post a credit card payment to an outstanding invoice") ).

At some point during April 2015, Ms. Roy "told [Ms. Murdoch that she] was concerned about her ability to perform the job [of Assistant Controller]" and indicated that Ms. Murdoch should look for another job. (Doc. 21-1 at 10-11 at 36-37; id. at 27 at 103); (Doc. 21-4 at 3 ¶ 5). "Mr. Berger did not ask [Ms. Roy] to make that communication to [Ms.] Murdoch]." Id.

On June 25, 2015, Ms. Roy issued a written disciplinary warning to Ms. Murdoch for failing to timely submit the DSR on June 23, 2015. AF No. 6.2. As the " DETAILS " section of the form filled out by Ms. Roy explained:

On June 23, 2015, I discovered that the Sales Report for that day had not been sent. I called [Ms. Murdoch] at 5:00 to let her know that I had not received the DSR. I asked if she had sent it and she said she wasn't sure if she did or not. I asked her to verify that it was sent-it had not been. The report was sent at 5:10 pm.

The DSR is a daily function with the same routine every day.

(Doc. 21-1 at 35).

This written warning also stated (in boilerplate fashion) at the top of the form:

You are receiving this First Written Warning as a result of the issue(s) described below. Please be aware that this is the first step in MEDJET Assistance's discipline process. We trust that you will correct this matter by improving your performance of your job and/or refraining from the act or omissions that has led to this Warning Notice. Any subsequent Written Warnings will lead to further discipline, up to and including discharge.

(Doc. 21-1 at 35). Ms. Murdoch and Ms. Roy both signed this disciplinary document. Id. During her supervision of Ms. Murdoch, Ms. Roy only recalls that one time in June in which Ms. Murdoch had to sign a written warning regarding her poor performance. (Doc. 21-1 at 8 at 25). Further, the record reflects that from the date of Ms. Murdoch's hire until the date of her discharge, she received only one written reprimand. AAF No. 7.1.

Ms. Roy has stated that she "recommended to Mr. Berger that [Ms.] Murdoch be terminated-once in April of 2015 and again on June 25, 2015, when [she] issued [Ms.] Murdoch a written warning for failing to send the daily sales report." (Doc. 21-4 at 3 ¶ 5). According to Ms. Roy, "Mr. Berger declined those recommendations." Id.

Ms. Murdoch responds to the foregoing job-related criticisms by pointing out that she received a salary increase from $36,000 to $40,000 effective January 1, 2015. (Doc. 21-3 at 7 at 23-24); (see also id. at 67 (" COMPENSATION ADJUSTMENT FORM ") ). Also, while Ms. Murdoch does not deny that "she made errors during the performance of her job duties" (doc. 25 at 3 ¶ 5), she contends that even though Ms. Roy had been supervising Ms. Murdoch since mid-January 2015, she only began being critical of Ms. Murdoch's job performance in March or April of 2015. AAF No. 6. According to Ms. Murdoch, Ms. Roy's heavy scrutiny coincided with when Mr. Berger learned of her engagement in March 2015. (Doc. 25 at 3 ¶ 5); (see also Doc. 21-3 at 47 at 182 (testifying that "the scrutiny of [her] work was just incredible" and that "[Ms. Roy] definitely started it in March"); id. at 183 (recalling that "the timing was [Ms. Roy] pressed [her] for information regarding [her] personal life and who was in [her] personal life, and from that time forward, the atmosphere, everything changed at work"); id. at 49 at 189-190 ("[A]fter [Mr. Berger] found out that [Ms. Murdoch] was in a personal relationship, he became non-communicative, would not talk to [her], rude, obnoxious. [Her] work was scrutinized. The whole environment for [her] work life changed.") ).

Mr. Berger testified that Ms. Roy told him about Ms. Murdoch's engagement at the "end of March, beginning of April." (Doc. 21-2 at 11 at 38). He further stated that the (disputed) "mutual," "flirtatious banter" with Ms. Murdoch ended when he "found out [that] she was engaged...because she had every opportunity to tell [him], and she never did." (Doc. 21-2 at 20 at 75). Ms. Roy has stated that "[a]t no time did Mr. Berger ever instruct, ask or otherwise try to convince [her] to scrutinize [Ms.] Murdoch's work or treat her differently from other employees." (Doc. 21-4 at 2 ¶ 4). Further, Ms. Murdoch has no knowledge of "what [Mr. Berger] told [Ms. Roy]." (Doc. 21-3 at 47 at 183).

In August of 2015, after Medjet had changed credit card servicers, a series of eleven customers should have received credits on their credit card accounts for refunds from Medjet, but the credits were not actually received by the customers. AF No. 8.1. Ms. Murdoch was aware that there was a problem because credits were posted with Medjet, but the refunds were not actually issued by the credit servicer, resulting in an overstated credit in her reconciliation variance statement. AF No. 8.2. Although Ms. Murdoch was monitoring the situation, she failed to alert Ms. Roy to the issue. AF No. 8.3. One of the customers who was expecting a refund made a series of complaints to Medjet and eventually contacted a potential large corporate customer for Medjet and informed the prospect that he was not satisfied with Medjet's service. AF No. 8.5.

Ms. Roy became aware of Ms. Murdoch's customer-credit mistake in late August and addressed it with her during her performance review on August 25, 2015. AF No. 9.1. Ms. Murdoch acknowledged the mistake during her review and noted that she should have informed Ms. Roy. AF No. 9.2. Ms. Roy considered Ms. Murdoch's August review to be a very poor one. AF No. 9.3.

Mr. Berger did not participate in Ms. Murdoch's performance review, which occurred while he was out of town. AF No. 10.1. Mr. Berger first became aware of the customer-credit error and the resulting customer complaints on the day after the review, August 26, 2015. AF No. 10.2. On August 27, 2015, Mr. Berger "made the decision to terminate [Ms. Murdoch's] employment....[and] communicated the termination decision to [her] on the following day, August 28, 2015." (Doc. 21-5 at 2 ¶ 3).

Ms. Murdoch asserts that Mr. Berger's decision to fire her was because of her lawyer's letter in June 2015 that accused Mr. Berger of sexually harassing her and the EEOC charge filed in August describing the same wrongful conduct. In response, Mr. Berger has stated in his declaration:

My decision to terminate Ms. Murdoch was not motivated in any way by the fact that Ms. Murdoch had filed a Charge of Discrimination with the Equal Employment Opportunity Commission. I had been aware since late June 2015 that Ms. Murdoch had retained legal counsel and intended to assert a claim of harassment with the EEOC. My decision to terminate Ms. Murdoch was based solely upon her work performance and was precipitated by a specific error in judgment, which she had acknowledged, and which had the potential to cost the company a substantial amount of business.

(Doc. 21-5 at 2 ¶ 3).

Concerning the August incident more specifically, Mr. Berger explained:

On August 26, 2015,...[Ms.] Roy, advised me about a recent accounting error which resulted in eleven Medjet customers not receiving credits on their credit card accounts for refunds to which they were entitled from Medjet. Based upon the information provided to me by Ms. Roy, it was apparent that Ms. Murdoch had been aware that there was a problem because credits were still outstanding on her reconciliation variance sheet. Despite being aware of the variances, Ms. Murdoch failed to notify Ms. Roy or take any other action to remedy the problem. As a result, the problem was not identified until eleven customers had been adversely affected. Ms. Murdoch's failure to be proactive and address the situation was consistent with prior performance problems which had been reported to me by Ms. Roy.

(Doc. 21-5 at 2-3 ¶ 4).

E. Ms. Murdoch's Sexual Harassment Allegations Against Mr. Berger

Ms. Murdoch contends that Mr. Berger took her to lunch and that, during the lunches, he asked her personal questions about her dating life and marriages. AF No. 12.1. Ms. Murdoch has testified that she told Mr. Berger that she was "uncomfortable" with the questions that he asked her. (Doc. 21-3 at 29 at 111).

Ms. Murdoch and Mr. Berger went to lunch together on three occasions. AF No. 12.2. The first occasion was in August of 2014, the second lunch occurred in October of 2014, and the third and final lunch together was on February 18, 2015. AF No. 12.3.

Ms. Murdoch maintains that, during the first lunch, Mr. Berger told her that he had been in his second marriage for twenty years and that it had been that long since he had sex. AF No. 12.4. During that first lunch and the two subsequent lunches, Ms. Murdoch was not reserved and she told Mr. Berger about her dating life, her three marriages, and her relationships with her family members. AF No. 12.5. After the February 18, 2015 lunch, Ms. Murdoch sent Mr. Berger a text message stating, "You may have taken me to lunch at [Ms. Roy]'s request, but I'm going to pretend it's bc you wanted to." AF No. 12.6. At the end of the text, Ms. Murdoch included a smiley face. AF No. 12.7.

Ms. Murdoch alleges that, during a particular conversation with Mr. Berger, he told her she was very attractive and very datable. AF No. 13.; ADF 2.3. According to Ms. Murdoch, Mr. Berger one time entered her personal space to stare into her eyes and told her she has beautiful eyes. AF No. 13.2; ADF 2.2. On other occasion he told her she looked good and that he liked what she was wearing. AF No. 13.2. Ms. Murdoch further asserts that Mr. Berger commented that she "looked good" or that she was "hot." ADF No. 1.2. Ms. Murdoch believed it was inappropriate for Mr. Berger to tell her he liked what she was wearing or that she looked nice. AF No. 13.3. However, Ms. Murdoch never told Mr. Berger she was offended by any compliment he gave her. AF No. 13.4.

Although Ms. Murdoch never objected to Mr. Berger's complimenting her on her appearance, she thought it was acceptable to send Mr. Berger messages during the same time frame telling him he was a "very kind and generous boss"; that he had a nice tan; and that things in the office are "just so-so" when he is not there. AF No. 14.1. During the time when Ms. Murdoch claims to have been sexually harassed by Mr. Berger, she regularly sent him unsolicited emails asking him how he was doing or how his travels were going. AF No. 14.2. For example, on February 11, 2015, Ms. Murdoch sent an email to Mr. Berger while he was out of town stating: "Just checking in. Is all as enjoyable there as you had hoped?" AF No. 14.3. Ms. Murdoch ended the message with a smiley face emoji. AF No. 14.4.

Ms. Murdoch complains about several other inappropriate email communications that she received from Mr. Berger. In response to an email from Ms. Murdoch thanking Mr. Berger for a monthly bonus, Mr. Berger responded, "I actually like you, you seem to be my exception, not my rule around here." AAF No. 2.2. Prior to March 2015, Mr. Berger sent many email messages to Ms. Murdoch which Mr. Berger characterized as "flirtatious banter". AAF No. 2.3. Examples include "Look forward to seeing you tomorrow."; "I can handle you."; and "B safe going home and get some rest." AAF No. 2.4.

On another occasion, Ms. Murdoch sent an email to Mr. Berger thanking him for a donation made in honor of her recently deceased mother. AAF No. 2.5. In response to the thank-you email, Mr. Berger wrote, "you can tell me 'in person' ". AAF No. 2.6.

Another time, Ms. Murdoch sent an email advising that the computer "G drive" was freezing up to which Mr. Berger responded, "don't you just hate at your age when the G drive freezes up? Greetings from Tampa. Miss me?" AAF No. 2.7.

On another occasion, Ms. Murdoch sent Mr. Berger an email thanking him for another bonus. Ms. Murdoch additionally wrote, "Well I hope my work eventually shows I'm worth it" to which Mr. Berger responded "I want you around...". AAF No. 2.8.

Ms. Murdoch also claims that Mr. Berger looked at her up and down with his eyes... and that "it was evident" to her that he was noticing parts of her body. AF No 15.1. Mr. Berger never asked Ms. Murdoch on a date or asked her to have sex, but she "got that feeling" from something he said one time. AF No. 15.2. Ms. Murdoch cannot remember what Mr. Berger said that gave her that feeling. AF No. 15.3. Mr. Berger testified unequivocally that he never advanced on Ms. Murdoch sexually. AF No. 15.4. Ms. Murdoch never told Mr. Berger that she was bothered by any of his comments or behavior. AF No. 15.5.

Ms. Murdoch claims that she was offended because Mr. Berger sometimes referred to her as "Dear." AF No. 16.1. Ms. Murdoch thought it was inappropriate if Mr. Berger ever used any term of endearment toward her and thought it was sexually inappropriate that he called her "Dear." AF No. 16.2. Ms. Murdoch never told Mr. Berger she was bothered that he called her "Dear." AF No. 16.3.

On March 10, 2015, when Ms. Murdoch was preparing for neck surgery, Mr. Berger texted her to say, "Good luck tomorrow. All will be just fine." AF No. 16.4. Ms. Murdoch replied to Mr. Berger by text saying, "Thank you, Dear" with a smiley face emoji. AF No. 16.5. Ms. Murdoch does not know why she used the sexually-offensive term "Dear" toward Mr. Berger. AF No. 16.6.

Ms. Murdoch alleges that she was offended by Mr. Berger sending her text messages when she was away from work and on weekends. AF No. 17.1; ADF 3.2. Ms. Murdoch never expressed to Mr. Berger that she was offended by him sending her text messages outside of work hours. AF No. 17.2. Ms. Murdoch also regularly sent text messages to Mr. Berger outside of work hours. Id. Ms. Murdoch did not maintain any copies of any texts from Mr. Berger which she contends were offensive. AF No. 17.3.

Mr. Berger did maintain text messages between himself and Ms. Murdoch, including the following string started by Ms. Murdoch on February 18, 2015:

Darlene : You may have taken me to lunch at Mona's request but I'm going to pretend its bc you wanted to (smiley face emoji)

Roy : Do you pretend a lot?

Darlene : Oh Geez!

Roy : Bad answer. You know I won't let you get away with that.

Darlene : I have an imagination and that's all I'm saying!

AF No. 17.4. Ms. Murdoch maintains that the two texts sent by Mr. Berger from the above exchange were inappropriate, but that her communications sent to him were fine. AF No. 17.5.

When Mr. Berger was asked during his deposition if he thought that flirtatious banter is appropriate in the workplace, he responded:

We are a very different kind of workplace, sir. We're a very small organization with 24 or 25 people. By and large we're close-knit as a family. Honestly it could be construed or conceived as office culture. We're just different. We're not a two- or three-thousand, four-thousand-person operation and whatever flirtatious banter there might have been was absolutely mutual and, I believe in both our opinions [i.e. , his and Ms. Murdoch's] not offensive.

(Doc. 21-2 at 9-10 at 32-33).

When asked (in a follow-up question) if he believed, given Medjet's smaller size, that flirtatious banter is acceptable, he answered:

No. I don't believe it's accepted. I believe basically it's the way we're created as a family, it happens. We're all close enough, we're in the same work space, we know a lot about each other both personally and professionally. That's the culture, frankly, that I try to create in an organization.

(Doc. 21-2 at 10 at 33).

In March of 2015, Ms. Murdoch was out of the office for a period of time because of surgery for a tumor in her neck. AF No. 18.1. Ms. Murdoch contends that she was made uncomfortable by Mr. Berger communicating with her that he wanted to come see her while she was out for surgery. AF No. 18.2. The following text string reflects communication between Mr. Berger and Ms. Murdoch while she was out:

Roy (March 10): Good luck tomorrow. All will be just fine.

Darlene : Thank you dear (smiley face emoji)

Roy : If you see this before surgery give Clair my number...and ask her to text me when u are in recovery. Thx.

Roy (March 11): Let me know how ur doing if u get ur phone on today.

Darlene (March 12): I'm up and doing ok. Still have bad pain and soreness. They weren't able to get all of the tumor bc of placement so in future if it grows they will use radiation to clear it up.

Roy : That's good, I think. Left you a vm. Call if you get a minute and up to it.

Roy : How are you doing?

Darlene : Just woke up to a nice bouquet of flowers-thank you! Still painful but meds do help.

Roy : Hang. I'll come visit tomorrow. Ok maybe I will just call!

Darlene : Haha you'd laugh if you saw how bad I looked! I'll call when I rouse from drug induced sleep.

Roy (March 13): Good morning. Let me know when u r awake and can take a call.

Darlene : I'm awake but miserable. Couldn't sleep last night and pain is still bad. Not up for chatting just yet. Maybe later in the day after a nap. Thanks for checking on me.

Roy : Hang in.

Darlene (March 14): Is now a good time for a call?

Roy : Give me 30.

Roy (March 15): How r u doing today?

Darlene : About the same. Can't be upright too long before necks (sic) gets tired and hurts but shoulder area is better.

Roy : That's good I guess. Hang in.

AF No. 18.3.

Following those texts, Ms. Murdoch sent Mr. Berger an unsolicited picture of the surgical scar on her neck with the message, "I have a zipper?" AF No. 18.4. Mr. Berger replied by saying, "I can go a million directions with that but won't. Feel better today." AF No. 18.5. In her charge of discrimination filed with the EEOC, Ms. Murdoch stated that Mr. Berger had replied by saying, "I know what I could do with that zipper." AF No. 18.6.

Upon Ms. Murdoch's return to work post-surgery, Mr. Berger texted to welcome her back and stated, "You got the best return gift you could have-me gone for a week!" AF No. 19.1. Ms. Murdoch replied, "Now you know that's not true for me." AF No. 19.2.

Ms. Murdoch claims that Mr. Berger hugged her on 7 to 10 occasions, including the day she received her job offer and her first day in the office. AF No. 20.1. In each instance she claims that Mr. Berger hugged her from the front with his hands on her back. AF No. 20.2. She does not contend that Mr. Berger ever touched her breasts, genital area or buttocks or that he made any sexual comment during any hug. AF No. 20.3. At no time did Mr. Berger's hugs cause Ms. Murdoch physical pain or did she feel threatened. AF No. 20.4. At no time did Ms. Murdoch ever tell Mr. Berger that she was offended by his hugging or that she did not want him to hug her. AF No. 20.5. While Ms. Murdoch did not prevent any of Mr. Berger's hugs, she did testify that she would "conclude the hug [by] getting out of the embrace quickly." (Doc. 21-3 at 37 at 141).

Ms. Murdoch recalls one of the hugs occurring when she returned to the office after her mother's death and states that Mr. Berger held her in the hug for an extended period of time. AF No. 20.6. Ms. Murdoch believes that Mr. Berger was being sympathetic, but says he could have been sympathetic without hugging her because she doesn't like being touched. AF No. 20.7.

Ms. Murdoch testified about another hug that occurred when she and Mr. Berger "were coming back from...the third lunch that [they] had had together." (Doc. 21-3 at 36 at 138). When Ms. Murdoch started walking towards the elevator, Mr. Berger "pulled [her] back by [her] elbow and said, Let's wait." (Doc. 21-3 at 36 at 139). "[They] waited until the empty elevator opened." Id. "[They] got into the elevator, and while [they] were in the elevator with the door shut, [Mr. Berger] hugged on [Ms. Murdoch] then." Id. Ms. Murdoch indicated that this encounter was no different-in terms of body contact-than Mr. Berger's other hugs. (Doc. 21-3 at 36 at 139). Ms. Murdoch confirmed that she and Mr. Berger were facing each other and that Mr. Berger reached around her back and shoulder area. (Id. at 140). Ms. Murdoch described it as a "full body hug" meaning it was "body-to-body contact" and not "a side arm hug" or a "shoulder bump." (Doc. 21-3 at 36 at 139, 140). Prior to this incident in the elevator and before arriving back at the building, Ms. Murdoch grabbed Mr. Berger's hand in the car and said words to the effect of, "I just want to thank you for being so nice to me and caring about me." AF No. 21.2.

Ms. Murdoch also testified that Mr. Berger hugged and kissed her on the top of her head in her hair twice. (Doc. 21-3 at 35-36 at 136-37). As Ms. Murdoch described one of those instances:

There was a time that he was going out of town. He came into my office and said, Stand up. I stood up, and he gave me a hug and kissed me on top of my head.

(Doc. 21-3 at 35-36 at 135). Ms. Murdoch did not say anything to Mr. Berger about how his actions made her feel uncomfortable. (Doc. 21-3 at 36 at 137).

The second instance occurred when Ms. Murdoch "was coming back from lunch in the parking lot." Id. "[Mr. Berger] was leaving the building." Id. "[They] crossed paths and he hugged [Ms. Murdoch] and, again, kissed [her] on the top of the head that day." Id. Mr. Berger admits that he has hugged Ms. Murdoch on multiple occasions and has kissed her on the top of her head. AAF No. 3.

As indicated above, Ms. Murdoch testified that "after [Mr. Berger] found out that [Ms. Murdoch] was in a personal relationship, he became non-communicative, would not talk to [her], rude, obnoxious. [Her] work was scrutinized. The whole environment for [her] work life changed." Doc. 21-3 at 49 at 189-190. Mr. Berger agreed that his interaction with Ms. Murdoch changed around this time. More specifically, Mr. Berger testified that the (disputed) "mutual," "flirtatious banter" with Ms. Murdoch ended when he "found out [that] she was engaged...because she had every opportunity to tell [him], and she never did." (Doc. 21-2 at 20 at 75). Citing to this same testimony by Mr. Berger, Ms. Murdoch contends that "[b]y his own words and actions [Mr.] Berger alluded to the fact that he wanted to have sex with [her]." (Doc. 25 at 10 ¶ 3 (citing Doc. 21-2 at 20 at 75-76) ).

F. Ms. Murdoch's Letter Complaining About Sexual Harassment

On or about June 25, 2015, Ms. Murdoch's attorney mailed a letter to Mr. Berger and other representatives of Medjet attaching a copy of a draft EEOC charge he intended to file on behalf of Ms. Murdoch alleging sexual harassment. AF No. 22.1. Receipt of that letter a few days after June 25, 2015, was the first knowledge Mr. Berger had that Ms. Murdoch believed she had been subjected to inappropriate treatment. AF No. 22.2; (see also Doc. 21-3 at 46 at 180 (Ms. Murdoch's confirming that the letter was dated June 25, 2015) ). Prior to her lawyer sending the letter on June 25, 2015, Ms. Murdoch had never reported to anyone at Medjet that she believed she was being sexually harassed. AF No. 22.3.

G. Ms. Murdoch's EEOC Filings

Ms. Murdoch formally filed her first EEOC charge (No. 420-2015-02540) alleging sexual harassment on August 10, 2015 (doc. 1-1 at 2) and attached a one-page summary of the particulars. (Id. at 3). This first charge identifies Mr. Berger as Ms. Murdoch's alleged harasser. (See Doc. 1-1 at 3 ("Shortly after my hire, I began receiving unwanted attention from Roy Berger, part-owner and Chief Executive Officer of Medjet.") ). Medjet received a copy of Ms. Murdoch's initial EEOC charge on or about August 22, 2015. AAF 7.5.

On September 11, 2015, Ms. Murdoch filed her second EEOC charge (No. 420-2015-02871) alleging retaliatory discharge on the basis of her recent administrative sexual-harassment complaint made against Medjet and her firing (as decided by Mr. Berger on August 27, 2015, and communicated to Ms. Murdoch on August 28, 2015-less than 1 week later). (Doc. 1-3 at 2).

H. Sexual Harassment Allegations Made by Other Medjet Employees

On December 23, 2014, Cathy Rollins ("Ms. Rollins"), Medjet's former Director of Partner Development, made a verbal complaint to Medjet's Chief Operating Officer, John Gobbels ("Mr. Gobbels") that she believed Mr. Berger had engaged in inappropriate sexual behavior toward her. AF No. 23.1; ADF 4.2. Accordingly to Ms. Rollins, Mr. Berger made numerous attempts to flirt with her and coerce her. ADF 4.3.

Mr. Berger asked Ms. Rollins if he were "kissable", and pinned her against her desk. ADF 4.4. He made further statements to Ms. Rollins that his wife was out of town and he was lonely. ADF 4.5. Mr. Berger also allegedly put a newspaper in Ms. Rollins's lap and then patted it, and has put his hands on her shoulder blades asking her if that made her feel uncomfortable. ADF 4.6 Mr. Berger further commented about Ms. Rollins's sexuality and her appearance. ADF 4.7.

When Ms. Rollins first spoke to Mr. Gobbels about Mr. Berger's unwanted behavior and inappropriate touching, he told her "that nothing could be done unless [she] filed a formal complaint...." (Doc. 26-6 at 2). Subsequently, Ms. Rollins completed a "formal" filing. Id. Mr. Gobbels then reported Ms. Rollins's complaint to corporate counsel and a member of the board of directors. AF No. 23.2. A meeting was held and, although Mr. Berger denied any inappropriate conduct, he was counseled about his behavior toward Ms. Rollins and other female employees. AF No. 23.3. Mr. Gobbels advised Ms. Rollins that her complaint had been reported and that she should not expect to have any other problems. AF No. 23.4. Within two weeks of being admonished by corporate counsel and advised to cease engaging in any actions toward Ms. Rollins, Ms. Rollins was informed that Mr. Berger was rubbing the leg of another female employee under the table at a staff meeting. ADF 4.8; ADF 4.9.

In February of 2015, Mr. Gobbels initiated another meeting with Ms. Rollins to determine if there were any continued problems and Ms. Rollins confirmed that the alleged harassment had stopped and she was satisfied with the result. AF No. 23.5. Ms. Rollins made no further complaint of harassment to Medjet. AF No. 23.6.

Former MedJet employee Julie Pyron ("Ms. Pyron") also experienced numerous comments and actions from Mr. Berger which she felt were sexually harassing in nature. ADF 5.1. Mr. Berger inquired about her sex life, frequently commented on her clothing, and even once asked her whether or not she was wearing any panties. ADF 5.2. Mr. Berger rubbed Ms. Pyron's shoulders, grabbed her hand, and, on one occasion, in a staff meeting, put his hand on her leg under the table. ADF 5.3. On yet another occasion, Mr. Pyron leaned over or knelt on the floor to stock a mini refrigerator during which time Mr. Berger made comments such as "I like you in that position." ADF 5.4.

Ms. Kerr also experienced conduct from Mr. Berger that she found to be inappropriate. ADF 6.1. Ms. Kerr on one occasion received pats on her bottom from Mr. Berger. ADF 6.2. On another occasion, Mr. Berger sent Ms. Kerr an email stating, "You are the only lady I'm interested in watching." ADF 6.3. Mr. Berger rubbed Ms. Kerr's shoulders on numerous occasions. ADF 6.4. In fact, it became an "every morning kind of thing." Id. Ms. Kerr also witnessed an instance when Mr. Berger put his hand on Ms. Murdoch's knee in a staff meeting. ADF 6.5.

MedJet's current Marketing Manager, Jennifer Tidmore ("Ms. Tidmore") testified that she experienced similar inappropriate conduct from Mr. Berger. ADF 7.1. On one occasion, while Ms. Tidmore was bent over, Mr. Berger commented that he liked the view. ADF 7.2.

Another time, while on a business trip, Mr. Berger handed Ms. Tidmore a room key to her hotel room and stated, "all the times that he had thought about or daydreamed about giving me his hotel room key, this isn't what he had in mind." ADF 7.3. Ms. Tidmore further testified about an instance when she suggested in an email that, due to Mr. Berger's height, he may require a large yoga mat, and he replied "are you saying on the record size matters?" ADF 7.4.

Ms. Tidmore also experienced the unwanted rubbing of shoulders by Mr. Berger. ADF 7.5. Finally, Ms. Tidmore recalls that one time her shirt rode up exposing the skin on the small of her back and Mr. Berger ran his finger across that part of her body. ADF 7.5.

Ms. Tidmore testified that she reported Mr. Berger's alleged inappropriate conduct to her immediate supervisor, Will McKee ("Mr. McKee"). (Doc. 26-4 at 7 at 22). Ms. Tidmore made a report to Mr. McKee about the yoga-email incident in January 2014. (Id. at 23). When she made this report to Mr. McKee, Ms. Tidmore testified that "[h]e was aware already of the previous things." (Id. at 22).

As Ms. Tidmore further explained her exchange with Mr. McKee about Mr. Berger's conduct:

He told me that as my supervisor, he was supposed to report it to his supervisor. But as my friend of 15 years, he would do what I wanted him to do. And so I told him that I wanted to just leave it for now.

Id. (emphasis added).

IV. ANALYSIS

A. Ms. Murdoch's Uncontested Outrage Claim

In opposing the Motion, Ms. Murdoch has "concede[d] that the conduct alleged will not support a claim for outrage under Alabama law." (Doc. 25 at 24 n.3). Accordingly, the Motion is GRANTED as to Count Six. Ms. Murdoch contests the dismissal of all remaining federal and state-law claims. The Court begins by evaluating Ms. Murdoch's Title VII claims.

B. Ms. Murdoch's Sexual Harassment Claim (Count One)

1. Underlying Principles Governing Sexual Harassment

Title VII provides that an employer "shall not discriminate against any individual with respect to his terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. § 2000e-2(a)(1) (1994) (emphasis added). Title VII has been interpreted to specifically allow claims for sexual harassment to rest upon the theory of an abusive work environment. See, e.g., Burlington Indust. v. Ellerth , 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Ms. Murdoch asserts a claim for sexual harassment in violation of Title VII due to the hostile working environment allegedly created by the actions of Mr. Berger.

A Title VII sexual harassment claim that is premised upon a hostile working environment created by a supervisor requires prima facie proof from a plaintiff:

(1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. Henson , 682 F.2d at 903-05.

Mendoza v. Borden, Inc. , 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc).

2. Summary Judgement Is Appropriate on Ms. Murdoch's Sexual Harassment Claim.

Medjet's Motion asserts three reasons why this Court should grant summary judgment on Ms. Murdoch's sexual harassment claim. First, Medjet contends that "[m]ost, if not all, of the conduct complained of by [Ms.] Murdoch is objectively not sexual." (Doc. 20 at 19 (emphasis omitted) ). Second, "[m]ost, if not all, of the alleged conduct from [Mr.] Berger was welcomed." (Doc. 20 at 20 (emphasis omitted) ). Third, "[t]here was no severe or pervasive harassment." (Doc. 20 at 22 (emphasis omitted) ).

In attempting to make its initial point (which is tied to Mendoza' s second prong), Medjet relies upon the Eleventh Circuit's decision in Gupta v. Fla. Bd. of Regents , 212 F.3d 571 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), as stated in Crawford v. Carroll , 529 F.3d 961, 973-74 (11th Cir. 2008), and Gupta's internal references to Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) and Mendoza . (Doc. 20 at 19-20). The Court is unconvinced by Medjet's Gupta -based position that complimenting someone about her looks or making similar comments about a person's appearance can never meet Mendoza' s second prong of "unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature." (Doc. 20 at 19).

Importantly, Gupta does not hold that compliments about a person's attractiveness or beauty are never objectively sexual under the second prong. Instead, the Gupta court excluded as non-sexual in nature the plaintiff's complaint that "Rhodd told her to steer clear of certain faculty members because they were evil and racist." 212 F.3d at 583. The court similarly found that "assist[ing] [the plaintiff] with the move to Fort Lauderdale by helping her find a place to live and to find inexpensive furniture" was non-sexual in nature. Id. Finally, Gupta rejected the plaintiff's "critici[sm]" of "telling her to come and see him if there was anything he could do for her" as exemplifying sexually harassing behavior." Id. (emphasis added).

The Gupta court then addressed the remaining"comments and behavior [including complimenting the plaintiff about "looking very beautiful"]...that [were], or arguably could be, considered to be of a sexual or gender-related nature." 212 F.3d at 584. Further, although the Eleventh Circuit expressed doubt over whether the remaining evidence before it was sufficiently sexual, the court never directly decided that issue, and opted "for present purposes [to] assume it to be." Id. ;cf. also id. ("It is debatable whether such a compliment is sexual in nature, but assuming that it is, we do not believe that a reasonable person would deem it to be offensive.") (emphasis added).

The Gupta court then proceeded to analyze the plaintiff's sexually-related, or at least arguably-sexually-related, allegations (including the compliment) to determine if they met Mendoza's severe or pervasive prong-the fourth prong. With respect to the compliment more particularly, the Eleventh Circuit "d[id] not believe that a reasonable person would deem it to be offensive." 212 F.3d at 584. Therefore, Gupta does not substantiate Medjet's challenge to Ms. Murdoch's sexual harassment allegations under the sexual component of Mendoza's second prong. Further, Medjet offers no other authorities to support its contention that the conduct was non-sexual and, therefore, not cognizable under Title VII. Accordingly, that part of Defendants' Motion is DENIED .

Medjet's second contention also applies to Mendoza's second prong. More specifically, Medjet maintains that, with respect to most of her allegations, Ms. Murdoch cannot show unwelcomeness. As the Supreme Court has explained the meaning of this term:

The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." 29 C.F.R. § 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (emphasis added). The Eleventh Circuit has similarly stated that "[i]n order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." Henson v. City of Dundee , 682 F.2d 897, 903 (11th Cir. 1982) (emphasis added) (citing collection of authorities). Thus, the presence of unwelcomeness is contingent upon Ms. Murdoch's interactions with Mr. Berger and not the comparable experiences that other Medjet employees claim to have had with him. (Cf. Doc. 25 at 13 (suggesting that Mr. Berger's treatment of Ms. Murdoch was "objectively offensive" in light of testimony from other Medjet employees "who had been subjected to [and were offended by] the same or similar conduct from [Mr. Berger]") ). Additionally, Ms. Murdoch does not maintain that she had any knowledge of these other situations during the period in which she is claiming harassment. See Adams v. Austal, U.S.A., L.L.C. , 754 F.3d 1240, 1250 (11th Cir. 2014) ("The totality of a plaintiff's workplace circumstances does not include other employees' experiences of which the plaintiff is unaware.") (emphasis added).

In response to the issue of unwelcomeness, Ms. Murdoch states:

Defendants argue that [Mr.] Berger's conduct toward [Ms. Murdoch] was welcomed because [she]...did not verbally object to the conduct and comments made by the President and CEO of the corporation during the first few months of her employment.

[Ms. Murdoch] did, however, testify that on those occasions when [Mr.] Berger hugged her, she did not hug him back. Further, she testified that she indicated to [Mr.] Berger that she was uncomfortable with the prying questions he was asking about her personal life. [Mr.] Berger testified that, while [Ms. Murdoch] was out following surgery, [she] deflected [Mr.] Berger's offer to come visit her at her house.

(Doc. 25 at 13-14 (citations omitted) ). Thus, Ms. Murdoch concedes that, with the exceptions of Mr. Berger's full-body hugs, his prying questions, and an offer to come visit her at her house post-surgery, she lacks conduct-on her part-indicating that Mr. Berger's alleged harassing comments and actions involving her were unwelcomed.

Further, the totality of the record confirms why Ms. Murdoch's limited opposition to the unwelcomeness factor of Mendoza 's second prong makes sense. More specifically, for the approximate 6 to 7-month period in which she claims that Mr. Berger sexually harassed her, Ms. Murdoch undisputedly engaged in her own pattern of inciting and/or engaging in flirtatious conduct toward him. Such examples include referring to Mr. Berger as "Dear"; adding smiley faces to several messages that she sent to him; grabbing his hand in the car and telling him words to the effect of, "I just want to thank you for being so nice to me and caring about me"; complimenting him on his nice tan and his kindness and generosity as a boss; lamenting that things in the office are "just so-so" when he is not there; and informing him (via text) after one of their lunches that she would "pretend" lunch was his idea rather than Ms. Roy's and joking with him that "I have an imagination and that's all I'm saying!" These undisputed facts reflect a mutual welcomeness between Ms. Murdoch and Mr. Berger (for most of the challenged conduct) rather than actionable unilateral unwelcoming behavior by Mr. Berger.

Given this record, no reasonable jury could conclude that Ms. Murdoch found Mr. Berger's conduct from the start of her employment until March 2015 (other than arguably those categories specifically excepted by her above) to be undesirable or offensive in the Title VII sense. Accordingly, the lack of unwelcomeness portion of Medjet's Motion is GRANTED IN PART .

Now the Court turns to Medjet's third challenge to Ms. Murdoch's Title VII sexual harassment claim-the absence of severe or pervasive conduct. More specifically, Medjet maintains that even if "some of Mr. Berger's actions were unwelcome and based on sex," such conduct falls short of being severe or pervasive to alter the terms or conditions of Ms. Murdoch's employment. (Doc. 20 at 22).

In light of the ruling immediately above, there are three categories of conduct remaining that Ms. Murdoch relies upon to satisfy the fourth Mendoza prong: Mr. Berger's 7 to 10 unwanted full-body hugs, his prying questions, and his offer to come visit her at her house post-surgery. With respect to evaluating the fourth element of a hostile work environment claim:

[T]he Supreme Court and [the Eleventh Circuit] have identified the following four factors that should be considered in determining whether harassment objectively altered an employee's terms or conditions of employment: (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. Allen v. Tyson Foods , 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris [v. Forklift Systems, Inc. ], 510 U.S. [17] at 23, 114 S.Ct. 367 [126 L.Ed.2d 295 (1993) ] ). The courts should examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiff's employment and create a hostile or abusive working environment. Id. ; see Harris , 510 U.S. at 23, 114 S.Ct. 367 ; Henson , 682 F.2d at 904 ; Faragher , 118 S.Ct. at 2283 (citing Harris , 510 U.S. at 23, 114 S.Ct. 367, and explaining that "[w]e directed courts to determine whether an environment is sufficiently hostile or abusive by 'looking at all the circumstances' ").

Mendoza , 195 F.3d at 1246.

As recognized by the Eleventh Circuit, the severe or pervasive prong "is the element that tests the mettle of most sexual harassment claims." Gupta , 212 F.3d at 583 (emphasis added). "Requiring the plaintiff to prove that the harassment is severe or pervasive ensures that Title VII does not become a mere 'general civility code.' " 212 F.3d at 583 (quoting Faragher , 524 U.S. at 788, 118 S.Ct. 2275 ).

"This requirement is regarded as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory conditions of employment." 212 F.3d at 583 (emphasis added) (internal quotation marks omitted) (quoting Oncale , 523 U.S. at 81, 118 S.Ct. 998 ). As a result, "a plaintiff must establish not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the environment to be hostile and abusive." Gupta , 212 F.3d at 583 (emphasis added) (citing Mendoza , 195 F.3d at 1246 ). As an initial matter, the Court points out that Ms. Murdoch has made no attempt to analyze her sexual harassment allegations in the context of the foregoing framework. Regardless, for purposes of the fourth-prong analysis, the Court assumes without deciding that Ms. Murdoch can satisfy the subjective component and proceeds with determining whether a "reasonable person would perceive the environment to be hostile and abusive." Id.

The Court first turns to the 7 to 10 unwanted hugs from Mr. Berger that Ms. Murdoch endured over the span of 6 to 7 months. While Ms. Murdoch describes these encounters as full-body hugs, she does not contend that Mr. Berger's hugs ever went beyond that into rubbing, groping, or some other more sexually-aggressive touching. She also does not assert that Mr. Berger said anything of a sexual nature when he hugged her. Thus, there is no evidence from which a reasonable jury could conclude that these (at most) twice-monthly hugs were objectively severe, physically-threatening, or humiliating.

Ms. Murdoch also has not offered any evidence to show how these infrequent hugs caused her to miss work or otherwise interfered with her job performance. See Meritor , 477 U.S. at 65, 106 S.Ct. 2399 ("[T]he Guidelines provide that such sexual misconduct constitutes prohibited 'sexual harassment,'..., where 'such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment' " (emphasis added) (quoting 29 C.F.R. § 1604.11(a) ) ); cf. Lawrence v. Wal-Mart Stores, Inc. , 236 F.Supp.2d 1314, 1326 n.21 (M.D. Fla. 2002) (finding insufficient proof of interference with work when the plaintiff failed to show that his "pain or sick feelings altered his work performance in any overt way or prevented him from attending work"). Thus, Mr. Berger's undesired hugs do not objectively meet the severe or pervasive prong.

As for Mr. Berger's prying questions about her personal matters including her dating life and marriages, Ms. Murdoch maintains that these occurred over lunch and that she informed Mr. Berger that such questions made her feel uncomfortable. Unlike the unwanted hugs, the summary judgment record does not reflect how many dating or marriage-related questions Mr. Berger asked Ms. Murdoch. However, because these inquiries took place at lunch and there were no more than 3 such lunches, then at most Mr. Berger asked Ms. Murdoch a series of personal questions that made her uncomfortable over 3 lunches during the 6 to 7 months of his alleged harassing behavior.

To the extent that Mr. Berger's questions were frequent, the other factors are objectively lacking. A boss's questions to a subordinate about who she is dating and how many times she has been married may be perceived as rude or uncivilized by some. However, they do not-without more-objectively translate into severe or pervasive conduct or create a hostile work environment. Importantly, the record lacks any indication that Mr. Berger probed Ms. Murdoch about more provocative areas of her personal life. For example, Mr. Berger never asked her how often she had sex or whether she had ever considered having an affair when she was married. He also never asked her to go on a date with him or to have sex. Ms. Murdoch additionally does not claim that Mr. Berger ever touched her inappropriately during these lunches.

Further, Ms. Murdoch has not shown how these questions taking place at lunch between just the two of them were physically-threatening, humiliating, or interfering with her ability to do her job. Cf. Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1277 (11th Cir. 2002) ("The very nature of the coworkers' utterances, coupled with the fact that they were directed at Miller and were sometimes used in the course of reprimanding him in front of others, establishes this factor [of humiliating conduct].") (emphasis added). Thus, Ms. Murdoch lacks sufficient evidence for a reasonable jury to conclude that the personal questions from Mr. Berger were objectively severe or pervasive.

Finally, Ms. Murdoch relies upon her successful "resistance" to Mr. Berger's offer to come visit her at home post-surgery to satisfy Mendoza's fourth prong. Importantly, Ms. Murdoch does not contend that Mr. Berger's offer to see her was coupled with any "sexually explicit remarks or innuendos." Gupta , 212 F.3d at 584-85. Ms. Murdoch also does not allege that Mr. Berger expressed a willingness to come to her home on other occasions. Cf. Gupta , 212 F.3d at 585 ("Neither the content of Rhodd's remarks nor the number of the phone calls suggests obsessive or stalker-like behavior by Rhodd."). Especially in the absence of Mr. Berger's actually coming to her house, no reasonable juror could conclude that such an unfulfilled offer objectively meets any of the severe or pervasive factors. Instead, Mr. Berger's post-surgery offer was an isolated incident that did not ever materialize, much less result in any serious physical or emotional consequences for Ms. Murdoch. See Faragher , 524 U.S. at 788, 118 S.Ct. 2275 (pointing out that "isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment' "). Also, the situation had no conceivable impact on Ms. Murdoch's job performance as she was on medical leave when it occurred.

Thus, no category of claimed unwanted conduct meets Mendoza's fourth prong. Further, considering the totality of circumstances, no reasonable person would perceive Ms. Murdoch's environment to be hostile or abusive in a Title VII cognizable manner. In sum, "[t]he alleged harassment in this case exemplifies 'the ordinary tribulations of the workplace,' Faragher , 524 U.S. at 788, 118 S.Ct. 2275, which the Supreme Court and [the Eleventh Circuit] have held do not constitute actionable sexual harassment." Gupta , 212 F.3d at 586. Consequently, the Motion is GRANTED as to Count One.

C. Ms. Murdoch's Retaliation Claim (Count Two)

1. Underlying Principles Governing Retaliation

"Retaliation against an employee who engages in statutorily protected activity is barred under...Title VII...." Chapter 7 Trustee v. Gate Gourmet, Inc. , 683 F.3d 1249, 1257-58 (11th Cir. 2012). The Supreme Court originally established the basic allocation of burdens and order of proof in a Title VII disparate treatment case based upon circumstantial (as opposed to direct) evidence in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas model, a plaintiff first has the burden of proving by a preponderance of evidence a prima facie case of retaliation. Within the Eleventh Circuit:

A plaintiff establishes a prima facie case of retaliation by showing that: (1) she "engaged in statutorily protected activity"; (2) she "suffered a materially adverse action"; and (3) "there was a causal connection between the protected activity and the adverse action." Howard v. Walgreen Co. , 605 F.3d 1239, 1244 (11th Cir. 2010) ; accord Davis v. Coca-Cola Bottling Co. Consol. , 516 F.3d 955, 978 n.52 (11th Cir. 2008).

Gate Gourmet , 683 F.3d at 1258.

First Element-Protected Activity

Concerning the first element, statutorily protected activity triggering coverage under Title VII's antiretaliation provision comes in two forms-opposition-based or participation-based conduct. More specifically, "[a]n employee is protected from discrimination if (1) 'he has opposed any practice made an unlawful employment practice by this subchapter' (the opposition clause) or (2) 'he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter' (the participation clause)." Clover v. Total Sys. Servs., Inc. , 176 F.3d 1346, 1350 (11th Cir. 1999) (on petition for rehearing) (citing 42 U.S.C. § 2000e-(3)(a) ).

Concerning the opposition clause more specifically:

[A] plaintiff can establish a prima facie case of retaliation under the opposition clause of Title VII if he shows that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices. See Rollins v. State of Fla. Dept. of Law Enforcement , 868 F.2d 397, 400 (11th Cir. 1989). It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.

A plaintiff, therefore, need not prove the underlying discriminatory conduct that he opposed was actually unlawful in order to establish a prima facie case and overcome a motion for summary judgment; such a requirement "[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation o[r] informal adjustment of grievances." Sias v. City Demonstration Agency , 588 F.2d 692, 695 (9th Cir. 1978). See also Payne v. McLemore's Wholesale & Retail Stores , 654 F.2d 1130, 1140 (5th Cir. Unit A Sept. 1981) ("To effectuate th