12Burnett v. Tyco Corporation, et al.No. 98-6477merely inappropriate. As we noted inWilliams, 182 F.3d at563, this “element of physical invasion” exceeds conduct thatis “merely crude, offensive, and humiliating.” I cannotoverlook the severity of this physical contact.Furthermore, the district court labeled both of Phillips’scomments to Burnett as “mere offensive utterance[s].”Phillips’s statement, “Since you have lost your cherry, here’sone to replace the one you lost,” was more than merelyoffensive. Unlike most of the comments found to be ofinadequate severity inBlackandAbeita, this comment wasmade directly to Burnett. As well, the comment was anexplicit reference to a private body part, her hymen. I cannotagree with the majority’s dismissal of this comment asinnocuous. Such a blatantly sexual comment addresseddirectly to Burnett by her supervisor in the presence of otheremployees exceeded the excusable realm of crude andadolescent behavior.Although the number of incidents alleged by Burnett–shepresents three incidents of inappropriate conduct–is less thanthose alleged inBlack,Abeita, orWilliams, this should not bedeterminative. When viewed under the totality of thecircumstances approach, the severe nature of these incidentsdistinguishes the present case. At a minimum, these factscreate a genuine of issue of material fact as to whether thework environment was objectively hostile. Therefore, Irespectfully dissent.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0051P (6th Cir.)File Name: 00a0051p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________JENNYBURNETT,Plaintiff-Appellant,v.TYCOCORPORATIONandGRINNELLCORPORATION,Defendants-Appellees.;>1No. 98-6477Appeal from the United States District Courtfor the Western District of Tennessee at Jackson.No. 96-01132—James D. Todd, District Judge.Argued: October 27, 1999Decided and Filed: February 11, 2000Before: MARTIN, Chief Judge; SUHRHEINRICH andSILER, Circuit Judges._________________COUNSELARGUED:Justin S. Gilbert, THE GILBERT FIRM,Jackson, Tennessee, for Appellant. Michael G. McLaren,Memphis, Tennessee, for Appellees.ON BRIEF:Justin S.Gilbert, THE GILBERT FIRM, Jackson, Tennessee, forAppellant. Michael G. McLaren, Memphis, Tennessee,2Burnett v. Tyco Corporation, et al.No. 98-64771Tyco International (US) Inc. is the parent company of GrinnellCorporation. Grinnell, as used herein, refers to both defendants.Cheryl Rumage Estes, THOMASON, HENDRIX, HARVEY,JOHNSON & MITCHELL, Memphis, Tennessee, forAppellees.SILER, J., delivered the opinion of the court, in whichSUHRHEINRICH, J., joined. MARTIN, C. J. (pp. 10-12),delivered a separate dissenting opinion._________________OPINION_________________SILER, Circuit Judge. Plaintiff Jenny Burnett sueddefendants Tyco Corporation and Grinnell Corporation(“Grinnell”) under Title VII, 42 U.S.C. § 2000e et seq.,alleging that certain sexual statements and other conduct weresufficiently severe or pervasive to constitute a hostile workingenvironment. The district court granted summary judgmentto defendants. We affirm the grant of summary judgmentbecause the allegations do not create a genuine issue ofmaterial fact as to whether the conduct was sufficiently severeor pervasive to support a finding of a hostile workingenvironment.I. BACKGROUNDBurnett was an employee of Grinnell1for over nineteenyears, during which time she alleges that she was sexuallyharassed. Burnett points to three specific instances in whichJim Phillips, personnel manager for Grinnell, engaged inoffensive conduct. Burnett also submits complaints fromother female Grinnell employees indicating that they havebeen offended by Phillips’s inappropriate behavior.The first instance of alleged harassment occurred sometimein July 1994 at a meeting of Grinnell’s packing department.No. 98-6477Burnett v. Tyco Corporation, et al.11We noted that a Title VII violation may exist even when nosingle episode of sexual harassment would be sufficient tocreate a hostile environment.See id. at 564. We stressed thatthe totality of the circumstances approach is the “most basictenet” of the hostile work environment cause of action.Id.at564. More specifically, we found that incidents with an“element of physical invasion” were “not merely crude,offensive, and humiliating.”Id.UnderMeritor Savings Bank, 477 U.S. at 67, andHarris,510 U.S. at 21, sexual harassment is actionable under TitleVII if the alleged conduct is sufficiently severe or pervasive.It need not be both. Burnett does not base her claim on thepervasive nature of Phillips’s conduct, by alleging thatPhillips’s conduct was ongoing or continual. Rather, she asksthis Court to examine whether the aggregate severity ofPhillips’s conduct was sufficient to create a hostile workenvironment. The district court and the majority have failedto examine Burnett’s evidence of a hostile work environmentunder the totality of the circumstances approach. Both havebroken out the individual incidents and determined that nonealone was adequately “severe” to create a hostile workenvironment. The majority creates a scorecard, finding oneact to be severe and two to be innocuous. While I do not fullyagree with their conclusions, I object more strongly to theirmethod of computation. The majority concludes that thesenumbers are insufficient to create an issue of material fact asto whether the conduct was sufficiently severe to create ahostile work environment. In doing so, the majority fails toexamine the aggregate effect of the incidents.See Williams,187 F.3d at 564.The district court found that Phillips’s act of reachinginside Burnett’s blouse and placing a cigarette pack under herbra strap was merely inappropriate. The majority properlyacknowledges this error and concedes that this physicalcontact was a battery. The severity of Phillips’s act isenhanced because this was unwelcome physical contact of avery personal form. Reaching inside someone else’s clothing,especially someone’s undergarments, cannot be considered10Burnett v. Tyco Corporation, et al.No. 98-6477_________________DISSENT_________________BOYCE F. MARTIN, JR., Chief Judge, dissenting. InHarrisv. Forklift Systems, Inc., 510 U.S. 17, 22 (1993), theSupreme Court acknowledged that determining whether awork environment is objectively hostile or abusive is not a“mathematically precise test.” Because this imprecise testrequires careful consideration of the aggregate effect of theoffensive factual incidents endured by Jenny Burnett, ratherthan simply a tallying of the occurrences, I must respectfullydissent.InMeritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986),the Court defined hostile work environment sexualharassment: “For sexual harassment to be actionable, it mustbe sufficiently severe or pervasive to alter the conditions of[the victim’s] employment and create an abusive workingenvironment.” InHarris, the Court provided a nonexclusivelist of factors for identifying a hostile work environment: “thefrequency of the discriminatory conduct; its severity; whetherit is physically threatening or humiliating, or a mere offensiveutterance; and whether it unreasonably interferes with anemployee’s work performance.”Harris, 510 U.S. at 23.The majority fails to acknowledge the impact of our Court’srecent decision inWilliams v. General Motors Corporation,187 F.3d 553 (6th Cir. 1999). InWilliams, we reversed thedistrict court’s grant of summary judgment in favor of thedefendant. The plaintiff alleged multiple acts creating ahostile work environment: foul language, sexual commentsdirected at plaintiff, at least one incident of physical contact,perceived inequities of treatment, and pranks or annoyingconduct by co-workers.See id. at 559, 562. We held thedistrict court erred in its dismissal of these incidents as“‘infrequent, not severe, not threatening or humiliating, butmerely offensive.’”Id. at 563. We found the district courtfailed to consider the totality of the circumstances and thereby“robbed the incidents of their cumulative effect.”Id. at 561.No. 98-6477Burnett v. Tyco Corporation, et al.3Burnett stated that Phillips entered the room and began tellinga story about a woman he had recently seen. While tellingthis story, he allegedly placed a pack of cigarettes containinga lighter inside Burnett’s tank top and brassiere strap. Burnettstated that she was stunned, shocked, and exposed. However,she also testified that Phillips pulled the strap up just enoughto insert the cigarette pack and that the resulting exposure wasno greater than it would have been had she merely leaned overwhile wearing the tank top.The second alleged incident occurred some two weeks laterat another departmental meeting. On this occasion, Burnettwas coughing and Phillips allegedly gave her a cough dropwhile stating, “Since you have lost your cherry, here’s one toreplace the one you lost.”The third incident allegedly occurred on December 29,1994. Burnett was wearing a Christmas sweater that read“Deck the Malls.” As Phillips walked by Burnett, heallegedly stated to her “Dick the malls, dick the malls, Ialmost got aroused.”Finally, other allegations of harassing behavior by Phillipsare presented in two affidavits of fellow Grinnell employees.In the first affidavit, a fellow female employee stated thatbased on her personal knowledge of how women were treatedby men at Grinnell she felt like “Grinnell [was] more like awhorehouse than a plant.” Additionally, a second affidavitincluded a form filled out by a female employee that wasplaced in Grinnell’s suggestion box. The suggestion formalleges that “[p]ractically all of the women down here has hada filthy remark from this man - Jim Phillips - includingmyself.” UnderAbeita v. TransAmerica Mailings, Inc., 159F.3d 246 (6th Cir. 1998), “this evidence is irrelevant at thisstage to plaintiff’s hostile environment . . . [claim] becausethere is no evidence that plaintiff was aware of these actionsat the time.”Id.at 249 n.4. Thus, we will address only thethree allegations of Phillips’s behavior directed to, and withthe knowledge of, Burnett.4Burnett v. Tyco Corporation, et al.No. 98-6477Following the third instance of alleged harassment, Burnettfiled a complaint with the Equal Employment OpportunityCommission (“EEOC”). Grinnell alleges that it investigatedthe charges contained in the EEOC complaint, but could notsubstantiate them. No relief was granted by the EEOC,leading Burnett to institute this action. Grinnell moved forsummary judgment, which was granted on the basis thatBurnett failed to show that there were material facts in disputeregarding whether the conduct complained of was sufficientlysevere or pervasive to create a working environment that areasonable person would find hostile or abusive.II. DISCUSSIONA. Standard of ReviewThis court reviews de novo a district court's grant ofsummary judgment.See Smith v. Ameritech, 129 F.3d 857,863 (6th Cir. 1997). Summary judgment is appropriate onlywhen there is no genuine issue of material fact in dispute andthe moving party is entitled to judgment as a matter of law.SeeFed. R. Civ. P. 56(c). In reviewing a motion for summaryjudgment, the court must view the evidence and draw allreasonable inferences in favor of the non-moving party.SeeMatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475U.S. 574, 587 (1986).“Where the record taken as a wholecould not lead a rational trier of fact to find for the nonmoving party, there is ‘no genuine issue for trial.’”Id.(quotingFirst National Bank of Ariz. v. Cities Service Co.,391 U.S. 253, 289 (1968)).B. Hostile Work Environment.Title VII of the Civil Rights Act of 1964 prohibitsdiscrimination by an employer “against any individual withrespect to his compensation, terms, conditions, or privilegesof employment, because of such individual’s ... sex[.]” 42U.S.C. § 2000e-2(a)(1). InMeritor Savings Bank v. Vinson,477 U.S. 57 (1986), the Supreme Court held “that a plaintiffmay establish a violation of Title VII by proving thatdiscrimination based on sex has created a hostile or abusiveNo. 98-6477Burnett v. Tyco Corporation, et al.9men and women routinely interact,’ and therefore summaryjudgment was inappropriate.”Id.at 564 (citation omitted).TheHarrisstandard requires that the conduct besufficiently severeorpervasive to alter the conditions of theplaintiff’s employment and thereby create a hostile or abusiveworking environment. In the instance case, Burnett’s threeallegations occurring at the beginning and end of a six-monthperiod are clearly not as pervasive as the fifteen incidentswhich occurred inWilliamsover a year-long period, or thevarious remarks made over the course of seven years inAbeita. Indeed, though it was clearly offensive, Phillips’sbehavior cannot be said to be even as pervasive as the severalremarks made regularly over a four-month period inBlackwhich were insufficient to support the jury’s verdict therein.Thus, the occurrence of the three allegations over the sixmonth period does not give rise to a genuine issue of materialfact as to whether the conduct was sufficiently pervasive tocreate a hostile work environment.However, the cigarette pack incident was more severe thanany of the conduct alleged inBlack, Abeita, or evenWilliamsbecause there was physical contact. GivenWilliams’semphasis upon an ‘element of physical invasion,’ this incidentis fairly severe and perhaps even constitutes a battery.However, under the totality of the circumstances, a singlebattery coupled with two merely offensive remarks over a sixmonth period does not create an issue of material fact as towhether the conduct alleged was sufficiently severe to createa hostile work environment.AFFIRMED.8Burnett v. Tyco Corporation, et al.No. 98-6477This court reversed, holding that the “District Court’sanalysis omits the plaintiff’s claim that Katz’s sexualcomments were ‘commonplace,’ ‘ongoing,’ and ‘continuing.’This omission is critical because . . . [the statements] appearto be of approximately equal severity to those found inBlack.”Id. at 252. In the instant case, Burnett does notallege that Phillips’s conduct was commonplace, ongoing, orcontinuing. Indeed, three alleged instances spread out at thebeginning and at the end of a six-month period are notcommonplace, ongoing, or continuing, and are therefore lesspervasive than the discriminatory conduct inAbeita.The severity of the incidents is most properly evaluated inlight of the recentWilliamsdecision. InWilliams, there werefifteen separate allegations of sexual harassment over a periodof one year that were alleged to have created a hostileworking environment. The allegations included derogatoryand profane remarks directed at the plaintiff, sexually explicitcomments directed at plaintiff, offensive comments directedat women in general, denial of plaintiff’s overtime, and theexclusion of plaintiff from certain workplace areas.SeeWilliams, 187 F.2d at 559. The district court grantedsummary judgment to General Motors on the grounds that thealleged incidents, though offensive, were not severe orpervasive enough to constitute a hostile work environment.See id. at 560.This court reversed, holding that the district court failed toevaluate the allegations by considering the totality of thecircumstances and erred by concluding that alleged conductmust be explicitly sexual in order to have created a hostilework environment.See id.at 561-62. The latter portion ofthis holding is immaterial to this appeal because all theconduct at issue was sexual in nature. The most relevantcircumstance noted inWilliamswas that three of the allegedincidents “were not merely crude, offensive, and humiliating,but also contained an element of physical invasion.”Id. at563. This court held that “Williams’s allegations, taken as awhole, raise a question whether Williams was subjected tomore than ‘genuine but innocuous differences in the waysNo. 98-6477Burnett v. Tyco Corporation, et al.5work environment.”Id. at 66. The Court further explainedthat “not all workplace conduct that may be described as‘harassment’ affects a ‘term, condition, or privilege’ ofemployment within the meaning of Title VII.”Id. at 67(citingRogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).Finally,Meritorestablished that “[f]or sexual harassment tobe actionable, it must be sufficiently severe or pervasive ‘toalter the conditions of [the victim’s] employment and createan abusive working environment.’”Id. (quotingHenson v.City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).The hostile or abusive environment standard has been bothaffirmed and elaborated upon by the Court on severaloccasions.See Faragher v. City of Boca Raton, 524 U.S.775, 787-88, 118 S. Ct. 2275, 2283 (1998);Burlington Indus.,Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S. Ct. 2257, 2265(1998);Oncale v. Sundowner Offshore Serv., Inc., --- U.S. ---,118 S. Ct. 998, 1001 (1998);Harris v. Forklift Systems, Inc.,510 U.S. 17, 21 (1993). Importantly, inHarris, the Courtnoted that theMeritorstandard “takes a middle path betweenmaking actionable any conduct that is merely offensive andrequiring the conduct to cause a tangible psychologicalinjury.”Harris, 510 U.S. at 21. Thus, Title VII is not “ageneral civility code for the American workplace.”Oncale,--- U.S. at ---, 118 S. Ct. at 1002. “‘The critical issue . . . iswhether members of one sex are exposed to disadvantageousterms or conditions of employment to which members of theother sex are not exposed.’”Id. (quotingHarris, 510 U.S. at25 (Ginsburg, J., concurring)).Several circumstances are to be considered in determiningwhether an environment is “hostile” or “abusive,” which“may include the frequency of the discriminatory conduct; itsseverity; whether it is physically threatening or humiliating,or a mere offensive utterance; and whether it unreasonablyinterferes with an employee’s work performance.”Harris,510 U.S. at 23. The use of the term “may” reiterates theCourt’s insistence that this is a non-exhaustive list of possiblecircumstances to consider. Thus, the issue “can bedetermined only by looking at all the circumstances.”Id.;see6Burnett v. Tyco Corporation, et al.No. 98-6477alsoWilliams v. General Motors Corp., 187 F.3d 553, 562(6th Cir. 1999) (stating that “it is well-established that thecourt must consider the totality of circumstances.”).C. AnalysisBurnett’s sole contention is that the district court erred infinding that no genuine issue of material fact exists as towhether there was an objectively hostile work environment atGrinnell. Grinnell responds that Burnett has not shown thatPhillips’s conduct was sufficiently severe or pervasive tocreate an objectively hostile work environment and that therehas been no showing that a condition of Burnett’s workenvironment has been affected. The three most recent hostileenvironment cases emanating from this Circuit show thatthere is no genuine issue of material fact in this matter.InBlack v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.),cert. denied, 118 S. Ct. 172 (1997), this court reversed a juryverdict which found that Black was subjected to a hostilework environment while she was an employee of ZaringHomes. Black alleged that she was subjected to variousdiscriminatory comments made at bi-weekly meetings fromJuly to October in 1993. First, at a July meeting, as amanager reached for a pastry he stated, “Nothing I like morein the morning than sticky buns.”Id.at 823. The managerallegedly looked at Black in a suggestive manner whilemaking this comment.See id.At the next meeting in August,participants joked that a parcel of land located next to aHooters Restaurant should be named “Hootersville,”“Titsville,” or “Twin Peaks.” These jokes allegedly continuedat several of the bi-weekly meetings.See id.Also in August, while discussing her job performance andbonus structure with her immediate supervisor, Black wastold that she “was paid great money for a woman.”Id.at 824.At a September meeting, Black allegedly felt uncomfortablewhen jokes were made about her pronunciation of the name“Busam,” which was apparently pronounced “bosom.”Seeid. Finally, at two meetings in October, Black was asked bythe president of the defendant corporation, “Say, weren’t youNo. 98-6477Burnett v. Tyco Corporation, et al.7there [at a biker bar] Saturday night dancing on the tables,”and was referred to as a “broad.”See id.Although these alleged incidents took place fairlyconsistently over a period of four months, this court held thatdefendant was entitled to judgment as a matter of law undertheHarristest because under the totality of the circumstancesthe comments were merely offensive and were thereforeinsufficient to support the jury’s verdict.See id.at 826. Thecourt deemed important the fact that “most of the commentswere not directed at plaintiff[.]”Id.Unlike the regularlyoccurring conduct inBlack, Burnett here alleges that the actsgiving rise to a hostile work environment occurred at thebeginning and at the end of a six month period. Thus, theallegations in the instant appeal are less pervasive than thoseinBlack. Additionally, the two comments alleged to havebeen made by Phillips were no more severe than thestatements made inBlack. The fact that the statements weredirected at Burnett neither removes their innocuous natureunder Title VII nor cures their infrequency.Burnett principally relies uponAbeita,in which a panel ofthis court reversed a summary judgment granted toTransAmerica on a hostile environment claim. InAbeita, theplaintiff alleged discriminatory conduct in the form of severaloffensive comments made over a period of seven years. Onlyone of the statements was specifically directed at plaintiffAbeita. The statement was made by the president ofTransAmerica who asked Abeita, “oh yellow dress and yellowshoes, yellow underwear too?”Abeita, 159 F.3d at 248. Theother alleged incidents concerned the president’s sexualinterest in other women, including a model he hired for aphoto session in order to meet her, and various othercomments that “were not sexual in nature but arguably reflectdegrading gender stereotyping.”Id.The district courtgranted summary judgment to TransAmerica, holding that theseveral offensive comments over a period of seven years didnot present any evidence stronger than that addressed inBlack.See id.at 252.