Zhou v. Intergraph Corporation

Filing 34

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/7/2019. (AFS)

FILED
2019 Jan-07 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

XUEYAN ZHOU A/K/A SUSAN
ZHOU,
Plaintiff,
vs.
INTERGRAPH CORPORATION,

)
)
)
)
)
)
)
)
)

Civil Action Number
5:17-cv-01033-AKK

Defendant.
MEMORANDUM OPINION
Xueyan Zhou alleges that her former employer, Intergraph Corporation,
unlawfully subjected her to a hostile work environment, discrimination, and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq. Doc. 1. The court has for consideration Intergraph’s motion for
summary judgment, which is fully briefed and ripe for consideration. Docs. 25, 31,
33. After reading the briefs, reviewing the evidence, and considering the relevant
law, the court finds that Intergraph has sustained its burden only as to Zhou’s
claims for sex discrimination, race and national origin discrimination, and racial
harassment. Therefore, Intergraph’s motion is due to be granted in part and denied
in part.

1

I.

LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary

judgment is proper “if the movant shows that 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. “Rule 56[] mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (alteration in original).
The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving
party, who is required to “go beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a
material fact 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 (1986).
At summary judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,
477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s
2

favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002). However, “mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II.

FACTUAL BACKGROUND
A. Zhou’s Work at Intergraph
Intergraph employed Zhou as a software consultant from May 2011 until

February 2017. Doc. 26-1 at 48-50. Zhou’s work consisted primarily of
programming at the user interface level or “client tier” for a 3D software product
called SmartPlant 3D (“S3D”). Docs. 26-3 at 20; 26-6 at 43-44. However, Zhou
also studied the middle level coding language of C++ in school, and was learning
the lower level code of WPF prior to her discharge. Doc. 26-1 at 81-82. While at
Intergraph, Zhou worked on one particular project that involved coding on multiple
“tiers” and received positive feedback from her supervisor Steve Herold and the
client. Doc. 26-1 at 161-63. Zhou also received positive annual performance
3

reviews that she was either “meeting” or “exceeding” expectations from her
supervisors Lester Lynd (2011 - 2014) and Herold (2014 - 2017). Docs. 26-1 at 60,
62, 67, 83, 89; 26-6 at 13, 40. In these reviews, Lynd and Herold encouraged Zhou
to continue developing her skills and to “focus on learning about the middle tier
components” of the S3D product. See doc. 26-1 at 141, 154, 172, 192; 26-2 at 17.
B. The Harassing Conduct
After becoming Zhou’s immediate supervisor, Herold met with Zhou in
December 2014, during which he told Zhou that he had power, that he knew how
much people on his team made, that he had the right to put people “in their
bracket,” and that he had the power to pick who to add to “the layoff list.” Doc. 261 at 116, 126-27. Herold added that if Zhou did not “do what he said,” he would
add her to this “layoff list.” Id. at 116. Herold then made these same threats to
Zhou in another conversation. Id. at 126. It is unclear what specific actions Herold
asked Zhou to undertake, but Zhou did not interpret Herold’s demands as sexual in
nature and she acknowledges they could have been work-related. Id. at 118-21.
Zhou complained to Lynd (Herold’s supervisor) about Herold’s threats on at
least two occasions. Id. at 241. Zhou asked Lynd if she could transfer to another
group, id. at 116-17, in one or perhaps both of these conversations. When Lynd
asked why, Zhou relayed her conversation with Herold and expressed her concern
that Herold was threatening her. Id. at 126-27. Lynd told Zhou that “[Herold]
4

would not say that,” that there was no “layoff list,” and that Herold would not
retaliate against her. Id. at 126-27, 117, 122. After this conversation, Lynd told
Herold that Zhou had complained to him about Herold’s “layoff list” comments.
Doc. 26-6 at 65. Subsequently, Herold had a follow-up conversation with Zhou,
the details of which are unclear. Doc. 26-1 at 123. Zhou decided not to pursue her
transfer request. Id. at 123.
Over the course of the next three-to-four years, Herold engaged in various
conduct that made Zhou uncomfortable and that she interpreted as sexual
overtures. Id. at 174, 240-41. For example, Herold repeatedly (less than ten times)
told Zhou at various times that his wife was out of town, that he was a bachelor,
and that he was “free.” Id. at 143-46. Additionally, on multiple occasions, Herold
told Zhou that she dressed “very nice,” a comment which Lynd also repeatedly
made to Zhou. Id. at 233-234. On two occasions, once while alone and a second
time when others were present, Herold told Zhou that a female employee had
seduced him by sitting next to him in his office and touching her leg against his,
and that he had had an affair with this employee. Id. at 233, 237-38. Once, when
Herold was using his phone to show Zhou photos of his grandchild, Herold
displayed a photo of his daughter breastfeeding with her chest exposed. Id. at 15052. Then, Herold told Zhou that he had found a “bloody picture” of his wife
delivering a child and tried to show her that picture as well, but Zhou turned away.
5

Id. at 153-54. Finally, in March 2016, Herold visited Zhou at her home one Sunday
afternoon to give her a casserole while she was recovering from a car accident and
while her husband was out of town. Id. at 168-73. Herold stayed for a few minutes,
made no inappropriate comments, and then left. Id. at 172-74. However, Herold
apparently pressured Zhou into allowing him to eat dinner with her and only left
when Zhou invited her daughter to meet him. Id. at 172-74.
With the exception of the “layoff list” conversation she reported to Lynd,
Zhou did not report any of Herold’s behavior to anyone at Intergraph prior to her
termination, and also did not report Lynd’s comments. Id. at 245.1 Zhou
acknowledges that she had reviewed and was familiar with Intergraph’s antiharassment policy and complaint procedure. See 26-1 at 53-56, 128-29, 132-33;
26-4; 26-5.
1

Zhou contends in her brief that she told Kaplan that she was uncomfortable around
Herold. Doc. 31 at 15 (citing doc. 26-1 at 106, 242). The relevant portion of Zhou’s testimony
states:
Q. And you’ve testified that you complained to Jennifer Kaplan about Mr. Herold. What
did you complain to her about?
A. I testified, ‘Jennifer, I feel unsafe after the bathroom incident, and also uncomfortable
to Steve Herold.’ I said, ‘I don’t feel safe to come work, because if we don’t find this
person, today they put this on the wall, tomorrow they may physically attack me.’ That’s
I’m feared of every day come to work.
Doc. 26-1 at 241-242. However, Zhou clarified subsequently that she never reported Herold’s
sexual harassment to Lynd or Kaplan and that, when she spoke with Kaplan about an incident
involving bathroom graffiti, she did not mention anything about Herold. Doc. 26-1 at 244. Thus,
although, “[a]s a general principle, a plaintiff's testimony cannot be discounted on summary
judgment,” the court discounts Zhou’s testimony that she told Kaplan, at some point, “I feel . . .
uncomfortable to Steve Herold” because this testimony is “blatantly contradicted by the record”
and is “blatantly inconsistent” with her other testimony. See Feliciano v. City of Miami Beach,
707 F.3d 1244, 1253-54 (11th Cir. 2013).

6

C. The Graffiti Incident
On December 20 or 21, 2016, a co-worker, Luther Walke, told Zhou about
graffiti in a men’s restroom that referred to Zhou and three other employees. Id. at
92-94. The graffiti said “Asian Sluts” above a list of four names that included
Zhou’s first name, Susan, and the first names “Nancy,” “Joseph,” and “Luther,”
with lines connecting the two females to the males. Id. at 95-97; doc. 26-8. Both
Zhou and Jennifer Kaplan, the vice president of human resources, believed that
“Nancy” in the graffiti referred to Nancy Ma, a Chinese employee, and that the
males referenced were Joseph Harrison and Luther Walke, neither of whom are of
Asian descent. Docs. 26-1 at 92-97; 26-7 at 17.
Upon learning about the graffiti, Denise Bates, the facilities manager,
temporarily taped chart paper over the graffiti and later ripped out the wallpaper.
Doc. 26-7 at 18-19. Bates also called the police, and either Bates or Kaplan filed a
police report. Docs. 26-7 at 18; 26-1 at 100. Subsequently, Bates provided Kaplan
with employee badge access information to review, and told Kaplan that she had
reviewed this information herself. Doc. 26-7 at 20-22.
When Kaplan and Walke called Zhou to talk about the graffiti, Zhou told
Kaplan, “I don’t feel safe to come work, because if we don’t find this person, today
they put things on the wall, tomorrow they may physically attack me.” Doc. 26-1 at
92-93, 242. Zhou also told Kaplan that she felt nervous and uncomfortable walking
7

around the parking lot. Doc. 26-7 at 24-25. Ostensibly for the purpose of
investigating the incident, Kaplan also asked Zhou who she talked to at the office
and Zhou named three men. Doc. 26-1 at 102-03.
After returning to the office from traveling during the winter holidays, Zhou
asked Kaplan for an update. Doc. 26-1 at 108. During this conversation, Kaplan
asked Zhou to help her review the badge access information from the date of the
incident, id. at 105-06, and told Zhou that the detective assigned to the case did not
have time to work on it, id. at 108. Zhou then called the assigned detective, who
told Zhou that he had called Kaplan three times and left voicemails, that Kaplan
never returned his calls, and that he had dismissed the case. Id. at 108-09.
As for the investigation, although Kaplan reviewed the badge access
information, she did not interview any employees. Doc. 26-7 at 22. Also, perhaps
because there were no security cameras installed outside the bathroom or because
she did not believe such a review would prove useful, Kaplan did not review any
of the footage from other cameras installed around the building. Doc. 26-7 at 23,
27. Ultimately, Intergraph did not identify the person(s) responsible for the graffiti.
Id. at 25.
D. The Transfer Interview
About a month after the graffiti incident, Lynd’s manager, Bucky Howell,
suggested to Lynd that Zhou should interview for a position with the “BIM” team.
8

Doc. 26-3 at 20. Lynd then spoke to Herold about the “BIM” position based on
Lynd’s contention that he wanted Zhou to interview for the “BIM” team because
Zhou was “more of a user interface programmer,” and the type of work that she
was doing on her S3D core team “had exhausted mostly.” Id. at 20-21. As for
Herold, he claims that he supported Lynd’s suggestion because Zhou lacked “good
skills doing lower level tasks” and “she was the lowest performing member of [his]
team.” Id.
Subsequently, Herold told Zhou that Intergraph had chosen her to interview
for a position on the “BIM” team. Doc. 26-1 at 178-80. Zhou asked if the directive
to interview for this transfer (which could have been local or to France) was related
to the graffiti incident, stating that, “I’m the victim. I shouldn’t get transferred, I
should get protected.” Id. at 178. Herold responded that she had to interview.
Later, Zhou asked Lynd the same question and stated, “I’m the victim.” Id. at 205.
Lynd denied that the incident factored in the decision, stated that Zhou was doing a
good job, and that he wanted her “skill to help other team [sic] as well.” Id.
Ultimately, the “BIM” team did not select Zhou for the vacancy. Id. at 181-82.
E. Zhou’s Termination
A few weeks later, on February 7, 2017, Intergraph discharged Zhou due
purportedly to a reduction in force dictated by economics. Doc. 26-3 at 34. In
response, Zhou informed Lynd and Tara Argraves, a Human Resources employee,
9

for the first time about Herold’s alleged sexual harassment, including Herold’s
visit to her home, the photos of breastfeeding and childbirth, and the comments
about his wife being out of town and about being seduced by an employee. Id. at
29, 35-36; doc. 26-1 at 131. When Lynd asked Zhou why she had not reported this
conduct prior to her termination, Zhou cited Herold’s age and her desire not to hurt
him. Id. at 133.
As for the termination, Intergraph maintains that the President and CFO of
its parent company, Hexagon, decided to reduce the workforce based on the
economic outlook of the oil and gas sector. Doc. 26-7 at 28. According to
Intergraph, when Howell informed Lynd that the S3D organization needed to
decrease its resources, Lynd selected Zhou for discharge because her skills were no
longer compatible with her team. Doc. 26-3 at 12, 24. Allegedly, Zhou’s lack of
skills was “an ongoing issue” that stretched back to when Lynd supervised Zhou.
Id. Lynd maintains that he chose Zhou for discharge without any input from
Herold. Doc. 26-3 at 41. However, Lynd acknowledges also that he and Herold had
regular conversations in which they ranked the performance of the employees on
Herold’s team. Doc. 26-6 at 18, 25.
III.

ANALYSIS

Zhou asserts Title VII claims for sexual harassment, racial and national
origin harassment, retaliation, discrimination based on sex, and discrimination
10

based on race and national origin. See doc. 1. Title VII makes it unlawful “to
discharge . . . or otherwise to discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2.

Harassment

based

on

race,

sex,

or

national

origin

can

constitute discrimination “because of . . . race, . . . sex, or national origin” for
purposes of Title VII. See id; Jones v. UPS Ground Freight, 683 F.3d 1283, 1292
(11th Cir. 2012); Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 508 (11th Cir. 2000); Herawi v. State of Ala. Dep’t of Forensic Sciences, 311
F. Supp. 2d 1335, 1350 (M.D. Ala. 2004). Title VII also has a retaliation provision
that creates a cause of action for employees who are discriminated against for
engaging in protected activity. 42 U.S.C. § 2000e-3; Meeks v. Computer Assocs.
Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994).
A. Sexual Harassment
Zhou contends that Intergraph subjected her to a hostile work environment
based on sex and discharged her because she rejected her supervisor’s sexual
advances. See doc. 31 at 17-22. To establish a prima facie case, Zhou must show:
(1) that she belongs to a protected group; (2) that she has been
subjected to unwelcome sexual harassment; (3) that the harassment
was based on her sex; (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) that a
basis for holding the employer liable exists.
11

Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004) (citing
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc)). The
Eleventh Circuit has referred to these elements as the “Mendoza factors.” See,
e.g., Johnson, 234 F.3d at 508 n. 7. For the fifth factor, in order to establish a basis
for the employer’s liability, a plaintiff may rely on two theories of liability: a
“tangible employment action” theory and/or a “hostile work environment” theory.
See Hulsey, 367 F.3d at 1245-46; Johnson v. Booker T. Washington Broadcasting
Service, Inc., 234 F.3d 501, 508 n.7 (11th Cir. 2000).2
District courts must evaluate liability according to the Mendoza factors
regardless of the theory of liability. See Johnson, 234 F.3d at 508 n. 7. Moreover,
the plaintiff may rely on both theories for the same alleged conduct, as Zhou does
here. See Hulsey, 367 F.3d at 1246. Nonetheless, there is a crucial difference
regarding the application of the fourth Mendoza factor depending on whether a
plaintiff is proceeding under a hostile work environment or a tangible employment
action theory: “[I]f a supervisor retaliates against a worker for failing to give in to
sexual advances, those advances will rise to the level of ‘severe or
2

The Eleventh Circuit has described the difference between the two theories as follows:
“To prove sexual harassment in violation of Title VII, a plaintiff may rely on one of two theories.
Under the first theory, the plaintiff must prove that the harassment culminated in a ‘tangible
employment action’ against her. Under the second or ‘hostile work environment’ theory, the
plaintiff must prove that she suffered ‘severe or pervasive conduct.’ ” Cotton v. Cracker Barrel
Old Country Store, 434 F.3d 1227, 1231 (11th Cir. 2006) (citations omitted).
12

pervasive.’” Johnson, 234 F.3d at 508 n. 7. Thus, under the tangible employment
action theory, whether a plaintiff satisfies the fourth and fifth Mendoza factor
collapses into one inquiry: whether there is a basis for holding the employer liable
because a supervisor took tangible employment action against the plaintiff for
failing to comply with the supervisor’s sexual demands. See id.; Hulsey, 367 F.3d
at 1246 (“When we talk about tangible employment action and hostile
environment, what we are or should be talking about are the two alternative ways a
plaintiff may establish a basis for the employer’s vicarious liability, which is the
fifth factor of a Title VII sexual harassment claim.”). Whether the supervisor’s
alleged harassment was of a frequency, degree, and nature that would qualify as
“severe and pervasive” is irrelevant. See id. at 1246-48 (analyzing the frequency,
severity, and nature of the alleged sexual harassment only when assessing the
plaintiff’s claim under a hostile work environment theory, but not when assessing
her claim under a tangible employment action theory).
Turning now to the specifics here, Intergraph contends that Zhou cannot
meet her burden with respect to the third, fourth, and fifth Mendoza factors. Doc.
25 at 15-23. The court will address these factors separately below.
1. Whether the Harassment Was Based on Sex.
To show that harassment was “based on her sex,” Zhou “must show that but
for the fact of her sex, she would not have been the object of harassment.”
13

Mendoza, 195 F.3d at 1248 n.5. Workplace harassment is not “automatically
discrimination because of sex merely because the words used have sexual content
or connotations.” Oncale, 523 U.S. at 81. Moreover, “general vulgarity or
references to sex that are indiscriminate in nature will not, standing alone,
generally be actionable.” Reeves v. C.H. Robinson Worldwide Inc., 594 F.3d 798,
809 (11th Cir. 2010). However, when a person “makes comments or advances of
an erotic or sexual nature,” the court can infer that “the harasser [is making]
advances towards the victim because the victim is a member of the gender the
harasser prefers.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246
(11th Cir. 1998). The court considers evidence of harassment “both cumulatively
and in the totality of the circumstances,” with “[c]ommon sense, and an
appropriate sensitivity to social context.” Reeves, 594 F.3d at 808, 812 (citing
Mendoza, 194 F.3d at 1242 and Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 82 (1998)).
Although some of the alleged conduct cannot constitute sexual harassment—
Herold’s “layoff list” threats to Zhou and Lynd’s comments that Zhou dressed
“very nice”—as the record does not support a finding that these comments were
made because of Zhou’s sex, the record is replete nonetheless with comments that
permit the inference that Zhou was subject to harassment based on her sex.
Specifically, several instances of Herold’s conduct toward Zhou, when considered
14

cumulatively, could be interpreted as “comments or advances of an erotic or sexual
nature.” See Llampallas, 163 F.3d at 1246. These include: (1) Herold’s repeated
remarks to Zhou that his wife was out of town, that he was a “bachelor,” and that
he was “free”; (2) Herold’s comments to Zhou that he was seduced by a female
employee who touched her leg against his; (3) Herold’s comments to Zhou on
multiple occasions that she dressed “very nice”; and (4) Herold’s visit to Zhou’s
home, unsolicited, to give her a casserole, during which he pressed her to let him
stay for dinner. Based on Herold’s sexual overtures to Zhou, “common sense”
dictates that he engaged in this behavior based on Zhou’s sex. See Reeves, 595
F.3d at 811 (quoting Oncale, 523 U.S. at 82).
Likewise, the anonymous “Asian sluts” bathroom graffiti also constitutes
harassment based on sex. The epithet has a sufficiently “sex-specific and
derogatory” meaning “as to make it clear that the harasser is motivated by general
hostility to the presence of women in the workplace.” See Oncale, 523 U.S. at 80;
Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir.
2007) (noting that a supervisor’s use of the word “slut” to describe a female
subordinate was, when compared to his other profanity, “more sex specific, which
is to say more degrading to women than to men.”). Indeed, this inference is
strengthened by the fact that the two female employees apparently targeted by the
graffiti were Asian, whereas the two male employees were not, suggesting that
15

“Asian sluts” referred to the women. But see Reeves, 594 F.3d at 813 (finding that
coworkers’ use of the terms “bitch” and “whore” were sexual harassment even
though the terms were directed at both men and women).
2. Whether the Harassment Amounted to Severe or Pervasive
Conduct.
Under a hostile work environment theory, Zhou must show that the sexual
harassment was “sufficiently severe or pervasive to alter the terms and conditions
of employment.” See Hulsey, 367 F.3d at 1244 (citations omitted). The “severe or
pervasive” standard has both subjective and objective components: the plaintiff
must “‘subjectively perceive’ the harassment as sufficiently severe and pervasive
to alter the terms or conditions of employment, and this subjective perception must
be objectively reasonable.” Mendoza, 195 F.3d at 1246 (quoting Harris v. Forklift
Systems, Inc. 510 U.S. 17, 21-22 (1993)). In other words, the “objective severity”
of the harassment must be such that a reasonable person in the plaintiff’s position,
considering all the circumstances, would find the environment “hostile or abusive.”
Id. (quoting Oncale, 523 U.S. at 81 and Harris, 510 U.S. at 21). In determining
whether the harassment rises to this level, the court must consider four factors: (1)
the frequency of the discriminatory conduct; (2) its severity; (3) whether it is
physically threatening or humiliating, or a mere offensive utterance; and (4)
whether it unreasonably interferes with an employee’s work performance. Harris,

16

510 U.S. at 23. Though all of these factors should be taken into account, “no single
factor is required.” Id. Finally, in making this determination, the court can only
consider instances of harassment that were based on sex. See Gupta v. Florida Bd.
of Regents, 212 F.3d 571, 583 (11th Cir. 2000), overruled on other grounds by
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (“[S]tatements and conduct
must be of a sexual or gender-related nature—‘sexual advances, requests for sexual
favors, [or] conduct of a sexual nature’—before they are considered in determining
whether the severe or pervasive requirement is met.” (citation omitted)).
Here, the discriminatory harassment that Zhou cites amounts to
approximately fifteen instances over the course of three-to-four years, which is too
infrequent under Eleventh Circuit case law to qualify as pervasive. See, e.g.,
Guthrie v. Waffle House, 460 F. App’x 803, 807 (11th Cir. 2012) (finding that “a
few dozen comments or actions . . . spread out over a period of eleven months”
was insufficiently frequent); Mitchell v. Pope, 189 F. App’x 911, 913 (11th Cir.
2006) (finding that “16 specific instances of offensive conduct” over four years
was insufficiently frequent). However, viewing the evidence in the light most
favorable to Zhou, the alleged conduct was sufficiently severe as it included “many
direct as well as indirect propositions for sex.” Hulsey, 367 F.3d at 1248. While
Herold may not have explicitly solicited sex from Zhou, his references to an affair
with a subordinate and his many comments about his wife being out of town and
17

his resulting bachelor status clearly conveyed his intent. On the alleged facts,
requiring an explicit proposition in order to find that Herold’s conduct was severe
would ignore the reality of the alleged behavior and would make a mockery of the
anti-harassment laws.
3. Whether the Harassment Culminated in Zhou’s Termination.
Alternatively, even if Intergraph is correct that the alleged conduct is not
severe and that consequently Zhou cannot establish her sexual harassment claim
under a hostile work environment theory, that does not end the court’s inquiry: the
court must also consider whether Zhou’s “refusal to submit to a supervisor’s sexual
demands result[ed] in a tangible employment action being taken against her.”
Hulsey, 367 F.3d at 1245. A “tangible employment action” includes “a significant
hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Id. (internal
quotations omitted) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753
(1998)). “There also must be a causal link between the tangible employment action
and the sexual harassment.” Cotton, 434 F.3d at 1231-32. An inference of
causation arises where “the harasser was the decision-maker for the tangible
employment action.” See Llampallas, 163 F.3d at 1247. However, where the
harasser was not the decision-maker, “a ‘cat’s paw’ theory of recovery may apply
when a biased actor recommends that an adverse employment action be taken
18

against an employee, but the biased actor is not the ultimate decision-maker.”
Williamson v. Adventist Health Sys./Sunbelt, Inc., 372 F. App’x 936, 938 (11th Cir.
2010) (citing Stimson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999)).
Intergraph maintains that the alleged harassment did not result in a tangible
employment action because Lynd made the discharge decision without any input
from Herold. Doc. 33 at 5-6. Zhou counters that Lynd’s decision may have been
based on Herold’s opinion. Doc. 31 at 29. 3 The record, when viewed in the light
most favorable to Zhou, supports Zhou’s cat’s paw theory. It is undisputed that
Lynd last directly supervised Zhou in 2014—three years before the discharge.
Thus, an issue of fact exists regarding whether Lynd had current and independent
knowledge of Zhou’s abilities and skills. Indeed, Lynd admits that he had regular
conversations with Herold in which they discussed and ranked employees’
performances. In other words, Lynd was likely aware of Herold’s opinion that
Zhou was “the lowest performing member of [Herold’s] team,” see doc. 26-6 at 18,
25, 43, when he made the discharge decision. These conversations occurred as
recently as a few weeks before the termination, when Herold shared his assessment
about Zhou’s abilities as part of the discussion on whether Lynd should suggest
3

Intergraph contends that Zhou’s sexual harassment claim fails because Herold never
“requested a sexual favor, or even asked Zhou out on a date.” Doc. 33 at 6. However, “a victim
need not provide evidence of a direct and express sexual demand to make a claim under the
‘tangible employment action’ analysis.” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305,
1312 (11th Cir. 2001). The evidence of Herold’s sexual advances toward Zhou is sufficient to
raise a genuine issue. See supra Section III-A-1.
19

that Zhou apply for a transfer. A few weeks later, Lynd allegedly decided to
discharge Zhou for that same reason, which suggests that Herold’s opinions about
Zhou that he regularly shared with Lynd influenced Lynd’s decision. See docs. 263 at 11-12, 19-21; 26-6 at 43-44. Thus, in light of the evidence that Lynd relied on
Herold’s characterization of Zhou’s skills when he decided to discharge her,
coupled with Herold’s threats to Zhou about his power over the layoff list, the
court cannot find as a matter of law that Herold had no involvement in the
discharge decision. The court finds instead that, when the evidence is viewed in the
light most favorable to Zhou, a genuine issue of material facts exists regarding
whether Zhou’s refusal to submit to Herold’s advances resulted in the tangible
employment action. For these reasons, summary judgment on Zhou’s sexual
harassment claim is due to be denied.
B. Harassment Based on Race and National Origin
Based on the “Asian sluts” graffiti incident, Zhou also contends that
Intergraph subjected her to harassment based on her race and national origin as a
person who was born in China and is of Chinese descent. Docs. 1 at 6-7; 31 at 7.
This single incident, while reprehensible, does not rise to the level of “severe and
pervasive” conduct necessary to establish a hostile work environment. See Adams
v. Austal, U.S.A., L.L.C, 754 F.3d 1240, 1254 (11th Cir. 2014) (finding that
conduct was not “severe or pervasive” where African-American plaintiff “saw
20

racist graffiti in the men’s restroom that he used on a daily basis,” “saw his
coworkers wear the Confederate flag on a regular basis,” “heard people say the slur
‘n*****’” several times, and heard about a noose being left in the breakroom).
Moreover, while Intergraph perhaps could have done more to attempt to identify
the perpetrator, it still responded to the incident with “immediate and appropriate
corrective action” that was “reasonably likely to prevent the misconduct from
recurring.” See Watson v. Blue Circle, Inc., 324 F.3d 1252, 1260-61 (11th Cir.
2003); Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir.
1996). 4 Thus, Zhou’s claim of hostile work environment based on race and
national origin fails.
C. Retaliation
Zhou contends that Intergraph retaliated against her by terminating her after
she complained about and participated in the investigation of the graffiti incident.
4

After the graffiti was discovered, the facilities manager promptly covered and then
removed the wallpaper containing the graffiti, and Intergraph filed a police report. Docs. 26-7 at
18; 26-1 at 100; 26-6 at 34-35. Kaplan, the Vice President of Human Resources, also reviewed
the employee badge access logs, discussed these logs with the facilities manager, and spoke with
the police, who informed Kaplan that, “short of doing an interrogation of all of our employees,”
it was unlikely that Intergraph would figure out who wrote the graffiti. Id. at 21-24. Notably,
Kaplan did not conduct any employee interviews or review any of the video footage. Id. at 27.
Moreover, there were no security cameras outside the bathrooms, and Intergraph still had not
installed security cameras over a year after the incident. Id. at 19. Nevertheless, “[a]ll that is
required of an investigation is reasonableness in all of the circumstances, and the permissible
circumstances may include conducting the inquiry informally in a manner that will not
unnecessarily disrupt the company’s business[.]” Baldwin, 480 F.3d at 1304. The record here
demonstrates that, while Intergraph’s investigation was lacking in certain respects, it was
adequately prompt and reasonable under the circumstances to satisfy Intergraph’s obligations to
its employees.
21

Doc. 31 at 23-26. Where the evidence of retaliation is entirely circumstantial, the
burden of proof shifts between the plaintiff and defendant according to the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972), analytical framework.
Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016).
Initially, the plaintiff must show: (1) that she engaged in statutorily protected
expression; (2) that she suffered an adverse employment action; and (3) that the
adverse employment action would not have occurred but for the protected
activity. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). If
the plaintiff establishes a prima facie case, the burden shifts to the defendant to
“proffer a legitimate, non-discriminatory reason for the adverse employment
action,” but this burden is “exceedingly light.” Meeks v. Computer Assocs. Int’l, 15
F.3d 1013, 1021 (11th Cir. 1994) (quoting Tipton v. Canadian Imperial Bank of
Commerce, 872 F.2d 1491, 1495 (11th Cir. 1989)). If the defendant does so, “[t]he
plaintiff must then demonstrate that the employer’s proffered explanations are a
pretext for retaliation.” Id.
With respect to the first prong of the prima facie case, Zhou contends that
her participation in Intergraph’s internal investigation of the graffiti, by itself,
constitutes protected activity under Title VII. Doc. 31 at 23-24. However, that is
not the case because “[t]he ‘participation clause’ only ‘protects proceedings and
activities which occur in conjunction with or after the filing of a formal charge
22

with the EEOC; it does not include participating in an employer’s internal, inhouse investigation, conducted apart from a formal charge with the EEOC.’”
Cheatham v. Dekalb Cty., Ga., 682 F. App’x 881, 886 (11th Cir. 2017) (quoting
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2001)).
Still, Zhou can show that she engaged in protected activity: (1) when she
complained to Kaplan that the “Asian sluts” graffiti made her feel unsafe and
uncomfortable; (2) when she asked Herold if she was being instructed to interview
for a transfer because of the graffiti incident and stated she was a “victim” who
should be “protected”; and (3) when she asked the same question of Lynd and said
she was a “victim.” See docs. 26-1 at 178, 204-05, 242; 26-7 at 24-25. In light of
the racially and sexually discriminatory content of the graffiti, Zhou’s comments to
Kaplan, Herold, and Lynd could reasonably be construed as informal complaints of
unlawful harassment. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350
(11th Cir. 1999) (“An employee is protected from discrimination if (1) ‘[she] has
opposed any practice made an unlawful employment practice by this subchapter’
(the opposition clause) . . .” (quoting 42 U.S.C. § 2000e-(3)a)); Rollins v. State of
Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (en banc)
(noting that Title VII protects individuals “who informally voice complaints to
their supervisors”). Furthermore, Zhou can show that she reasonably believed that
the “Asian sluts” bathroom graffiti constituted sexual or racial harassment. See
23

Furcron, 843 F.3d at 1311 (“The conduct opposed need only be close enough to
support an objectively reasonable belief that it is [unlawful].” (citation and
quotation marks omitted)). Thus, Zhou has established that she engaged in
statutorily protected expression.
Zhou can also satisfy the second and third prongs of her prima facie case by
showing that her termination was causally connected to her protected activity. A
plaintiff can prove causation through “sufficient evidence that the decision-maker
became aware of the protected conduct, and that there was a close temporal
proximity between this awareness and the adverse . . . action.” Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (citation omitted).
Even if Lynd solely made the decision, at a minimum, Lynd did so within a month
of his own conversation with Zhou in which she engaged in protected activity. See
doc. 26-1 at 204-05. The one-month gap between this conversation and Zhou’s
termination is sufficiently close to create a presumption of causation. See, e.g.,
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (“We have held that a
period as much as one month between the protected expression and the adverse
action is not too protracted.”). Thus, Zhou can establish a prima facie case of
retaliation.
Therefore, the burden shifts to Intergraph to articulate a non-retaliatory
reason for Zhou’s discharge. Intergraph has proffered that it discharged Zhou as
24

part of a reduction in force necessitated by financial concerns, and that it selected
Zhou because her “skill set” was no longer appropriate for her team. See doc. 26-3
at 24, 34; 26-7 at 28. Specifically, Intergraph claims that it discharged Zhou
because she had primarily performed user interface programming that “had
exhausted mostly,” and Zhou “was not skilled in coding at the middle and lower
levels” of the S3D software. See docs. 26-3 at 12, 20, 26-28; 25 at 3, 13. This is
sufficient to satisfy Intergraph’s burden. See Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1331 (11th Cir. 1998) (finding that the defendant “need only produce
evidence that could allow a rational fact finder to conclude that [plaintiff’s]
discharge was not made for a discriminatory reason.” (citation omitted)).
In light of this, Zhou “must provide sufficient evidence to allow a reasonable
fact finder to conclude that the proffered reasons were not actually the motivation
for [her] discharge.” Id. at 1332 (citation omitted). “To show pretext, the evidence
produced must reveal such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in the employer’s proffered legitimate reasons for
its actions that a reasonable factfinder could find them unworthy of credence.”
Furcron, 843 F.3d at 1313 (citation and quotation marks omitted)). Viewed in the
light most favorable to Zhou, the record contains sufficient evidence of pretext. As
an initial matter, the close temporal proximity of one month between Zhou’s
complaint to Lynd and her discharge is evidence of pretext. See Hurlbert v. St.
25

Mary’s Health Care System, Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). Moreover,
Zhou has also presented evidence that Herold, Zhou’s alleged sexual harasser,
influenced Lynd’s decision to discharge Zhou. See supra Section III-A-3. And, if
that were not enough to raise a genuine dispute, Zhou can also point to evidence
that she was a competent, if not commendable, programmer. Over the course of her
employment, there is no documentary evidence that Zhou received any complaint
or negative report concerning her performance. See Wascura v. City of South
Miami, 257 F.3d 1238, 1245 (11th Cir. 2001) (“[T]he lack of complaints or
disciplinary reports in an employee’s personnel file may support a finding of
pretext”). Indeed, Zhou’s annual performance reviews from 2012 through 2016
consistently note that she “meets expectations” and, in four of the reviews, that she
“exceed[ed] expectations” for the categories of “Teamwork” or “Customer
Impact/Value Added.” Doc. 26-1 at 141-42, 154-57, 172-74, 192-94; 26-2 at 1719. And, although Intergraph claims that it discharged Zhou because her “skill set
was no longer compatible” with her team, doc. 25 at 13, Zhou’s performance
reviews seem to directly rebut that assertion. For instance, in Zhou’s November
2016 review, completed only four months before her discharge, the comments
under the category “Job Knowledge/Skills/Capabilities” state that Zhou is “a solid
developer” with “a good working knowledge of all the software languages used
within the S3D product,” and “[s]he is able to leverage her knowledge to achieve
26

positive results on her assigned projects.” Doc. 26-2 at 17. Earlier reviews of
Zhou’s job skills also offer similar, positive feedback. See, e.g., doc. 26-1 at 154
(“Susan is very conscientious that her work is of the highest quality which has led
to very low rejection rate of her work items.”), 172, 192. Furthermore, Herold’s
positive feedback for Zhou’s work on two particular projects, one of which
involved multiple tiers of coding, further undermines Intergraph’s proffered reason
for discharging Zhou. See doc. 26-1 at 160-64.
Taking this evidence into account, a reasonable factfinder could ultimately
conclude that Intergraph’s proffered reasons were “unworthy of credence.” See
Furcron, 843 F.3d at 1313. Thus, the motion on Zhou’s retaliation claim fails.
D. Sex, Race, and National Origin Discrimination
The motion is due to be granted, however, as to Zhou’s claims of
discrimination based on her sex, race, and national origin. Zhou abandoned these
claims when she failed to address them in her response to Intergraph’s motion for
summary judgment. See docs. 25 at 24-27; 31; Fischer v. Fed. Bureau of Prisons,
349 F. App’x 372, 375 n. 2 (11th Cir. 2009) (citing Transamerica Leasing, Inc. v.
Inst. of London Underwriters, 267 F.3d 1303, 1308 n.1 (11th Cir. 2001)) (finding
that the plaintiff waived claims he failed to address in his response to the motion
for summary judgment).

27

Alternatively, the discrimination claims fail because Zhou has not shown
that Intergraph “treated similarly situated employees who are not members of [her]
class more favorably,” or that Intergraph “intended to discriminate against [her] in
making the discharge decision.” See Burke-Fowler v. Orange Cty., Fla., 447 F.3d
1319, 1323 (11th Cir. 2006) (holding that, to establish a Title VII discrimination
claim, a plaintiff must show, in part, that “her employer treated similarly situated
employees who are not members of the plaintiff’s class more favorably”);
Standard, 161 F.3d at 1331 (stating that, in a reduction in force case, the plaintiff
must show “sufficient evidence from which a rational fact finder could conclude
that [her] employer intended to discriminate against [her] in making the discharge
decision.”). Zhou has presented no evidence that Intergraph treated her less
favorably than a similarly situated comparator outside her protected classes. See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). Nor does the
record present “a convincing mosaic of circumstantial evidence that would allow a
jury to infer[] intentional discrimination by the decisionmaker.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (citations omitted).
CONCLUSION
In sum, viewing the evidence in the light most favorable to Zhou, summary
judgment is due to be denied on Zhou’s sexual harassment claim because she can
show that Intergraph subjected her to sexual harassment that culminated in her
28

discharge. Furthermore, because Zhou can establish a prima facie case of
retaliation and can show that Intergraph’s proffered reasons for the discharge are
pretextual, Intergraph’s motion is also due to be denied on her retaliation claim.
However, Intergraph’s motion is due to be granted as to Zhou’s claims for hostile
work environment based on race and national origin, sex discrimination, and race
and national origin discrimination. The court will enter a separate order consistent
with these findings.
DONE the 7th day of January, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

29