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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3351

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SANDRA BROWN-BAUMBACH,

 Appellant

v.

B&B AUTOMOTIVE, INC.

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 09-cv-3962)

District Judge: Honorable R. Barclay Surrick

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Submitted Under Third Circuit LAR 34.1(a)

April 28, 2011

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Before: SLOVITER, GREENAWAY, JR., and ROTH, Circuit Judges

(Opinion Filed: June 17, 2011)

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OPINION

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GREENAWAY, JR., Circuit Judge

Sandra Brown-Baumbach (“Plaintiff”) appeals from the District Court‟s grant of 
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summary judgment in favor of B&B Automotive, Inc. (“Defendant” or “B&B”) on her 

claims of sexual harassment based on a hostile work environment, gender discrimination, 

and retaliation. For the reasons set forth below, we will affirm the District Court‟s 

decision on the gender discrimination and retaliation claims, and reverse and remand for 

further proceedings on the hostile work environment claim. We conclude that Plaintiff 

has demonstrated that genuine issues as to material facts exist on the hostile environment 

claim, precluding the grant of summary judgment.

I. Background Facts

We write primarily for the benefit of the parties and recount only the essential 

facts.

Plaintiff was hired by B&B in May 2008 as an assistant business manager, 

responsible for loan financing. Plaintiff was supervised by Frank Beyer, as well as 

Michael Brill, the owner of B&B. (App. 82.) B&B is a used car sales lot, located in a 

former gas station. According to Plaintiff‟s deposition testimony, she sometimes worked 

from a cubicle by herself, and sometimes shared a desk with Mr. Beyer. (App. 84.)

As set forth in detail in the District Court‟s opinion, Plaintiff‟s complaint is based 

on a series of events that occurred during her four month tenure with B&B. These events 

included jokes with sexual overtones made about Ms. Brown-Baumbach; comments 

made in Ms. Brown-Baumbach‟s presence that had a sexual connotation; comments made 

about Ms. Brown-Baumbach that were sexual in nature; rumors about Ms. BrownBaumbach of a sexual nature; berating and insulting remarks directed at Ms. Brown-
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Baumbach and other women based on their gender; and rude conduct by another female 

employee directed at Ms. Brown-Baumbach, allegedly based on Ms. Brown-Baumbach‟s 

gender.

Sexual jokes about Plaintiff

The jokes included an incident involving ice cream being spilled on her clothes, 

resulting in a male co-worker joking that he had made her so excited, “she creamed her 

pants.” 1(App. 109.) Plaintiff referenced a secretary‟s comment about Ms. BrownBaumbach and her supervisor “getting busy”2

 as another example of co-workers making 

sexual jokes at her expense. (App. 111.)

Remarks with a sexual connotation 

Ms. Brown-Baumbach alleged that, in her presence, Larry Knorr, a co-worker, 

commented to a female customer that he wanted to take her dancing and that “he swung 

both ways.” (App. 94.) Ms. Brown-Baumbach also commented that Mr. Knorr “talked 

dirty” to female customers.3 (App. 101.) Additionally, she cited a suggestion by a 

 

1

The definition in Urban Dictionary for “creamed my pants” is “[t]o have a 

spontaneous orgasm upon viewing something of exceptional awesomeness.” 

Urban Dictionary, 

http://www.urbandictionary.com/define.php?term=to+cream+my+pants (last visited June 

7, 2011). 

2

The definition in Urban Dictionary for “to get busy” is “to have sex.” Urban 

Dictionary, http://www.urbandictionary.com/define.php?term=get+busy (last visited June 

7, 2011.

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The record is clear that Ms. Brown-Baumbach was in the room with Mr. Knorr 

and the female customer to whom he made the dancing comment. With regard to the 
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supervisor that if Ms. Brown-Baumbach‟s cousin wore heels and dressed attractively for 

her upcoming job interview, she would automatically be hired. (App. 113.) On another 

occasion, when a stripper entered the dealership to purchase a car, Ms. BrownBaumbach‟s supervisor stated to Ms. Brown-Baumbach that “Heels really turn me on. 

What do you think she has in the trunk?” (App. 114.) When the stripper purchased a 

new car, the supervisor assisted in moving her belongings from the old car to the new car. 

While doing this, her supervisor found a pair of “stripper heels” in the back seat. (Id.) 

He held them up to the window to show them to Ms. Brown-Baumbach, saying “Sandy, 

look, these are what turn me on.” (Id.)

Sexual comments about Plaintiff

Examples of sexual comments made about Ms. Brown-Baumbach include a text 

message sent by Ms. Brown-Baumbach‟s supervisor to a co-worker asking if Ms. BrownBaumbach was wearing underwear one day,

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and a suggestion made directly to her by 

another supervisor that she come work for him since he “needed an attractive woman” at 

his location. (App. 112.)

Sexual rumors

Ms. Brown-Baumbach referenced a rumor that began circulating throughout the 

entire office indicating Ms. Brown-Baumbach and a co-worker, Joe Nasito, were sleeping 

 

other occasions when Mr. Knorr allegedly “talked dirty” to female customers, it appears 

that Ms. Brown-Baumbach was nearby when these comments were made. 

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 Ms. Brown-Baumbach learned of the text message when the recipient of the text 
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together. (App. 104.) Ms. Brown-Baumbach denied that they had a romantic 

relationship, but said they commuted together and talked about their respective 

relationship problems. (App. 105.) 

Berating and insulting remarks

When Ms. Brown-Baumbach complained to Michael Brill, the owner of B&B, 

about the rumor involving her and Mr. Nasito, Mr. Brill responded that “perception is 

everything,” (App. 105), and stated that he would be concerned what people thought of 

his daughter if she gave a male co-worker a ride to work (App. 104). On other occasions, 

Mr. Brill called Ms. Brown-Baumbach a “mother fucking bitch,” (App. 99), told her that 

she was saying “fucking nonsense,” (App. 98), told her to pack up her “fucking shit and 

leave,” (App. 119), and to “get the fuck out of his office” (App. 98). Additionally, Ms. 

Brown-Baumbach stated that, on another day, Mr. Brill said “that if any of us women 

shed a tear in his office, consider us automatically terminated.” (App. 120.)

Rude conduct by other women

Ms. Brown-Baumbach testified that Theresa Martin, a female co-worker, had 

allegedly gotten other female employees fired, and that Ms. Martin treated her and other 

female employees rudely. (App. 95.) For example, Ms. Brown-Baumbach stated that 

Ms. Martin would throw her paperwork on the floor. (App. 96.) Ms. Brown-Baumbach 

asserted that Ms. Martin did not treat her male coworkers in a similarly rude, 

disrespectful, or hostile manner. (App. 96.) 

 

message showed it to her.
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II. Jurisdiction and Standard of Review

The District Court had jurisdiction, pursuant to 28 U.S.C. § 1331. We have 

jurisdiction, pursuant to 28 U.S.C. § 1291.

Our standard of review applicable to an order granting summary judgment is 

plenary. Huston v. Proctor & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 

2009) (citing Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997)). “We may 

affirm the order when the moving party is entitled to judgment as a matter of law, with 

the facts viewed in the light most favorable to the non-moving party. Further, „[w]e may 

affirm the District Court on any grounds supported by the record.‟” Kossler v. Crisanti, 

564 F.3d 181, 186 (3d Cir. 2009) (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir.

2000) (en banc)). “Where the record taken as a whole could not lead a reasonable trier of 

fact to find for the non-moving party, there is no „genuine issue for trial.‟” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

IV. Analysis

A. Hostile Work Environment

To establish a hostile work environment claim against an employer, a plaintiff 

must prove the following: “(1) the employee suffered intentional discrimination because 

of [his or her] sex, (2) the discrimination was pervasive and regular, (3) the 

discrimination detrimentally affected the plaintiff, (4) the discrimination would 

detrimentally affect a reasonable person of the same sex in that position, and (5) the 
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existence of respondeat superior liability.”

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 Weston v. Pennsylvania, 251 F.3d 420, 426 

(3d Cir. 2001) (quoting Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).

In assessing the evidence presented, we must consider the totality of the 

circumstances, including “the frequency of the discriminatory conduct; its severity; 

whether it is physically threatening or humiliating, or a mere offensive utterance; and 

whether it unreasonably interferes with an employee‟s work performance. The effect on 

the employee‟s psychological well-being is, of course, relevant to determining whether 

the plaintiff actually found the environment abusive. But while psychological harm, like 

any other relevant factor, may be taken into account, no single factor is required.” Harris 

v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); see also Caver v. City of Trenton, 420 F.3d 

243, 262 (3d Cir. 2005) (“In determining whether the conduct at issue is sufficiently 

extreme, we consider the „totality of the circumstances.‟” (quoting Andrews, 895 F.2d at 

1482)).

However, not every sexual comment, action or joke creates a hostile work 

environment. That is, “[t]he mere utterance of an epithet, joke, or inappropriate taunt that 

 

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 “We have often stated that discriminatory harassment must be „pervasive and 

regular.‟ But the Supreme Court‟s standard is „severe or pervasive.‟ The difference is 

meaningful, and the Supreme Court‟s word controls, so we use the severe or pervasive 

standard here.” Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (internal citations 

omitted), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. 

White, 548 U.S. 53 (2006). See also 2 Charles A. Sullivan & Lauren M. Walter, 

Employment Discrimination Law and Practice § 7.07[A] (4th ed. 2009) (“The more 

objectionable the conduct, the less of it will suffice to be actionable; the more innocuous 

the conduct, the more is required to „contaminate‟ the work environment.”). 
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may cause offense does not sufficiently affect the conditions of employment to implicate 

Title VII liability.” Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001). The 

Supreme Court has noted that “„simple teasing,‟ offhand comments, and isolated 

incidents (unless extremely serious) will not amount to discriminatory changes in the 

„terms and conditions of employment.‟” Faragher v. Boca Raton, 524 U.S. 775, 788 

(1998) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 82 (1998))

Here, the District Court analyzed the ten incidents upon which Plaintiff‟s case is 

based by considering whether the conduct was “targeted at Plaintiff because she was a 

woman.” (App. 14.) According to the District Court, “[a]t all times, „„[t]he critical issue‟ 

that remains is „whether members of one sex are exposed to disadvantageous terms or 

conditions of employment to which members of the other sex are not exposed.‟‟” (App. 

14-15 (quoting Oncale, 523 U.S. at 80).) While these standards are correct, the District

Court‟s application of them to the facts of this case is flawed. For example, the District 

Court reasoned that the impact of the rumors about Plaintiff sleeping with a co-worker 

were equally offensive to both Plaintiff and the male co-worker. This conclusion 

disregards the reality that “traditional negative stereotypes regarding the relationship 

between the advancement of women in the workplace and their sexual behavior 

stubbornly persist in our society.” Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994). 

Although the rumors in the present case do not implicate the stereotype of a 

woman using her sexuality to gain favor with a supervisor, as occurred in Spain v. 

Gallegos, the present rumors nonetheless contribute to the full panoply of events that 
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could be considered as contributing to the hostile work environment. In fact, the rumors 

constitute only one of at least ten incidents cited by Plaintiff in support of her claim. 

Mr. Brill‟s reaction to Plaintiff‟s complaint to him about the rumors and their 

impact on her supports the inference that Plaintiff was being treated differently based on 

her gender. Upon hearing Plaintiff‟s complaint, he chastised her for commuting with a 

man. Specifically, he noted “perception is everything” and that he would worry about 

what people would say if his daughter drove a male co-worker to work. (App. 104-05.) 

“[H]ostile or paternalistic acts based on perceptions about womanhood or manhood are 

sex-based or „gender-based.‟” Durham, 166 F.3d at 148.

Additionally, the District Court parsed out each event, explaining how and why 

the separate incidents did not demonstrate that a hostile work environment existed.6 The 

District Court concluded that the various incidents, viewed separately, amounted to 

nothing more than “mere offensive utterances” that were “sporadic” and essentially 

amounted to nothing more than “the ordinary tribulations of the workplace.” (App. 17 

(quoting Harris, 510 U.S at 23 and Faragher, 524 U.S. at 788).) We do not agree. 

“The facially neutral mistreatment plus the overt sex discrimination, both sexual 

and non-sexual, in sum constituted the hostile work environment.” Durham, 166 F.3d at 

148. Here, the comments and conduct similarly ranged from the offensive (the

 

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 Parsing out the incidents is contrary to both Supreme Court and our precedent 

which require that the events be viewed in their totality. Harris, 510 U.S. at 23; Caver, 

420 F.3d at 262-63; Cardenas, 269 F.3d at 260-61.
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underwear text message, the “cream her pants” comment, and the reference to Plaintiff as 

a “mother fucking bitch”) to the facially neutral (Theresa Martin throwing Plaintiff‟s 

paper work on the floor). 

Considering this range of incidents, combined with their frequency over a span of 

only four months,

7 we are unable to conclude, as a matter of law, that they simply 

constitute “ordinary tribulations of the workplace.” Rather, we conclude that sufficient 

evidence exists to create genuine issues as to material facts, thus precluding the grant of 

summary judgment. 

B. Gender Discrimination

In order to establish a prima facie case of gender discrimination, a plaintiff must 

show that (1) she is a member of a protected class; (2) she is qualified for the position in 

question; (3) she suffered an adverse employment action; and (4) circumstances exist that 

give rise to an inference of unlawful discrimination in that similarly situated male 

employees were treated more favorably. See Texas Dep‟t of Cmty. Affairs v. Burdine, 

450 U.S. 248, 253 (1981); Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 539 (3d Cir. 2006). Once a plaintiff establishes a prima facie case, 

the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 

 

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 Establishing the exact frequency of these incidents is difficult to discern from 

the record before us. However, it appears that the incidents started in June, and continued 

until August. Given the number of incidents described by Ms. Brown-Baumbach, it 

seems that she was exposed to some form of sexually offensive conduct on at least a 

weekly basis. 
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(1973) comes into play, and the defendant would be required to offer a nondiscriminatory reason for its adverse action. 

Here, Plaintiff failed to establish a prima facie case of gender discrimination. 

Assuming, arguendo, that she satisfied the first three elements of the prima facie case, 

Plaintiff failed to present any evidence that similarly situated males were treated more 

favorably than she was. Therefore, we will affirm the District Court‟s decision to grant 

summary judgment on this claim. 

C. Retaliation

In order to establish “a prima facie case of retaliation, a plaintiff must show that: 

(1) the employee engaged in a protected employee activity; (2) the employer took an 

adverse employment action after or contemporaneous with the employee‟s protected 

activity; and (3) a causal link exists between the employee‟s protected activity and the 

employer‟s adverse action.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d 

Cir. 2000). As explained in the District Court‟s opinion, Plaintiff did not establish a 

causal link between her alleged constructive discharge and her reporting of the alleged 

discrimination to her superiors. We find that Plaintiff failed to establish a prima facie 

case of retaliation. We will affirm the District Court‟s grant of summary judgment on 

this claim.

V. Conclusion

For the reasons set forth above, we conclude that genuine issues as to material 

facts exist regarding the claim of sexual harassment based on a hostile work environment, 
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thus precluding the grant of summary judgment. We will reverse and remand the District 

Court‟s decision on that claim. On the other hand, we will affirm the District Court‟s 

decision on the claims of gender discrimination and retaliation.