A Florida appellate court reversed a lower trial court’s decision to summarily dispose of a guidance counselor’s workplace sexual harassment claim against the Broward County School Board for the conduct of the principal of the school where she worked. The lower court had ruled that Cherellda Branch-McKenzie, the guidance counselor, did not provide evidence to support her claim sufficient for proceeding to trial.

The Fourth District disagreed with the lower court in Branch-McKenzie v. Broward County School Board, released on September 12, 2018.

Cherellda Branch-McKenzie worked as a guidance counselor at Riverland Elementary where Oslay Gil was the principal. Among the inappropriate conduct alleged to have happened, Mr. Gil placed his fingers on Ms. Branch-McKenzie’s lips if he thought she was talking too loud and told her “Girl, you look good. I sure would like to see what that’s like. I know I can have THAT!” Another incident involved him touching her on the neck and saying, “come on, let me kiss you right there.” When Ms. Branch-McKenzie said “no,” he said next time he would not ask, he would just do it. Mr. Gil also inappropriately touched her buttocks on multiple occasions, and on one occasion stated, “oh, I’m sorry, but it felt good.” These incidents would sometimes happen in front of co-workers, like the time when Mr. Gil touched her back and hair, and then told a co-worker who saw the exchange that Ms. Branch-McKenzie was “like a mango…you can’t have just one.” It came to a point where Ms. Branch-McKenzie would ask a co-worker not to leave her alone with Mr. Gil. Several other co-workers provided testimony of other incidents where they observed Mr. Gil’s inappropriate conduct and comments towards Ms. Branch-McKenzie.

One of the elements of a hostile work environment claim is that “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Despite Ms. Branch-McKenzie’s testimony and the testimony of co-workers corroborating her claims, the lower court ruled that the evidence did not show that Mr. Gil’s conduct was pervasive enough to support a hostile work environment claim because after Ms. Branch-McKenzie reported the conduct to the School Board’s Equal Employment Opportunity office, Mr. Gil’s conduct stopped, although she testified it was because she made a point of avoiding him.

In order to determine whether offensive conduct is pervasive enough, four factors are considered: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; and (4) whether the conduct unreasonably interfered with the employee’s job performance.”

The Fourth District Court of Appeal engaged in a fact-intensive analysis of these factors and held that Ms. Branch-McKenzie came forward with sufficient evidence as to all four factors to support a hostile work environment sexual harassment claim. The appellate court reversed the lower court’s order disposing of her claim, thereby allowing the claim against the School Board for the conduct of Mr. Gil to proceed to trial.

If you have been the victim of workplace sexual harassment, you should discuss your story with an attorney who can guide you at the lower court level and appellate court level. Please let us know if we can help.