12 Burnett v. Tyco Corporation, et al. No. 98-6477

merely inappropriate. As we noted in Williams, 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’s

comments 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 in Black and Abeita, 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–she

presents three incidents of inappropriate conduct–is less thanthose alleged in Black, Abeita, or Williams, 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.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

JENNY BURNETT,

Plaintiff-Appellant,

v.

TYCO CORPORATION and

GRINNELL CORPORATION,

Defendants-Appellees.

Appeal from the United St

for the Western District of T

No. 96-01132—James D. T

Argued: October 

Decided and Filed: Feb

Before: MARTIN, Chief Judge

SILER, Circuit 

____________

COUNSE

ARGUED: Justin S. Gilbert, Jackson, Tennessee, for AppellanMemphis, Tennessee, for AppelleeGilbert, THE GILBERT FIRM, Appellant. Michael G. McLare
2 Burnett v. Tyco Corporation, et al. No. 98-6477

1Tyco International (US) Inc. is the parent company of Grinnell

Corporation. 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 which

SUHRHEINRICH, J., joined. MARTIN, C. J. (pp. 10-12),delivered a separate dissenting opinion.

_________________

OPINION

_________________

SILER, Circuit Judge. Plaintiff Jenny Burnett sued

defendants 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. BACKGROUND

Burnett was an employee of Grinnell1 for over nineteen

years, 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 sometime

in July 1994 at a meeting of Grinnell’s packing department.

No. 98-6477 Burnett v. TycWe noted that a Title VII violation single episode of sexual harassmecreate a hostile environment. See ithe totality of the circumstances aptenet” of the hostile work environm564. More specifically, we foun“element of physical invasion” offensive, and humiliating.” Id.

Under Meritor Savings Bank, 4

510 U.S. at 21, sexual harassmenVII if the alleged conduct is sufficIt need not be both. Burnett does pervasive nature of Phillips’s cPhillips’s conduct was ongoing or cthis Court to examine whether Phillips’s conduct was sufficient environment. The district court anto examine Burnett’s evidence of a under the totality of the circumstanbroken out the individual incidents alone was adequately “severe” environment. The majority createact to be severe and two to be innocagree with their conclusions, I objmethod of computation. The majnumbers are insufficient to create to whether the conduct was suffihostile work environment. In doinexamine the aggregate effect of the 187 F.3d at 564.

The district court found that P

inside Burnett’s blouse and placing bra strap was merely inappropriatacknowledges this error and cocontact was a battery. The sevenhanced because this was unwelcvery personal form. Reaching insidespecially someone’s undergarme
10 Burnett v. Tyco Corporation, et al. No. 98-6477

_________________

DISSENT

_________________

BOYCE F. MARTIN, JR., Chief Judge, dissenting. In

Harris v. 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. 

In Meritor 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.” In Harris, 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’s

recent decision in Williams v. General Motors Corporation,

187 F.3d 553 (6th Cir. 1999). In Williams, 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. 98-6477 Burnett v. TycBurnett stated that Phillips entered a story about a woman he had recthis story, he allegedly placed a paa lighter inside Burnett’s tank top astated that she was stunned, shockeshe also testified that Phillips pulleto insert the cigarette pack and that no greater than it would have been hwhile wearing the tank top.

The second alleged incident occu

at another departmental meeting. was coughing and Phillips allegedwhile stating, “Since you have lost replace the one you lost.”

The third incident allegedly oc

1994. Burnett was wearing a Ch“Deck the Malls.” As Phillips allegedly stated to her “Dick the almost got aroused.”

Finally, other allegations of hara

are presented in two affidavits of fIn the first affidavit, a fellow fembased on her personal knowledge oby men at Grinnell she felt like “Gwhorehouse than a plant.” Additiincluded a form filled out by a fplaced in Grinnell’s suggestion balleges that “[p]ractically all of the a filthy remark from this man - myself.” Under Abeita v. TransAm

F.3d 246 (6th Cir. 1998), “this evstage to plaintiff’s hostile environthere is no evidence that plaintiff wat the time.” Id. at 249 n.4. Thusthree allegations of Phillips’s behathe knowledge of, Burnett.
4 Burnett v. Tyco Corporation, et al. No. 98-6477

Following the third instance of alleged harassment, Burnett

filed 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. DISCUSSION

A. Standard of Review

This court reviews de novo a district court's grant of

summary 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.See Fed. 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 whole

could not lead a rational trier of fact to find for the nonmoving party, there is ‘no genuine issue for trial.’” Id.

(quoting First 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 prohibits

discrimination 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). In Meritor 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 abusive

No. 98-6477 Burnett v. Tycmen and women routinely interacjudgment was inappropriate.” Id. 

The Harris standard require

sufficiently severe or pervasive to plaintiff’s employment and thereby working environment. In the installegations occurring at the beginnperiod are clearly not as pervasivwhich occurred in Williams over various remarks made over the Abeita. Indeed, though it was clbehavior cannot be said to be even remarks made regularly over a fowhich were insufficient to support Thus, the occurrence of the three month period does not give rise to fact as to whether the conduct wacreate a hostile work environment

However, the cigarette pack inci

any of the conduct alleged in Blackbecause there was physical conemphasis upon an ‘element of physis fairly severe and perhaps evHowever, under the totality of thbattery coupled with two merely ofmonth period does not create an iwhether the conduct alleged was sa hostile work environment.

AFFIRMED.
8 Burnett v. Tyco Corporation, et al. No. 98-6477

This court reversed, holding that the “District Court’s

analysis 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 not

allege 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 in Abeita.

The severity of the incidents is most properly evaluated in

light of the recent Williams decision. In Williams, there were

fifteen 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 to

evaluate 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 in Williams was 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 ways

No. 98-6477 Burnett v. Tycwork environment.” Id. at 66. Th

that “not all workplace conduct ‘harassment’ affects a ‘term, coemployment within the meaning (citing Rogers v. EEOC, 454 F.2d Finally, Meritor established that “be actionable, it must be sufficienalter the conditions of [the victim’an abusive working environment.

City of Dundee, 682 F.2d 897, 904 

The hostile or abusive environm

affirmed and elaborated upon boccasions. See Faragher v. City 775, 787-88, 118 S. Ct. 2275, 2283 Inc. v. Ellerth, 524 U.S. 742, 753-(1998); Oncale v. Sundowner Offsh118 S. Ct. 998, 1001 (1998); Harr510 U.S. 17, 21 (1993). Importanoted that the Meritor standard “tamaking actionable any conduct threquiring the conduct to cause injury.” Harris, 510 U.S. at 21. general civility code for the Amer

--- U.S. at ---, 118 S. Ct. at 1002. whether members of one sex are exterms or conditions of employmenother sex are not exposed.’” Id. (q25 (Ginsburg, J., concurring)).

Several circumstances are to be 

whether an environment is “host“may include the frequency of the dseverity; whether it is physically tor a mere offensive utterance; and interferes with an employee’s wo

510 U.S. at 23. The use of the Court’s insistence that this is a noncircumstances to consider. Tdetermined only by looking at all th
6 Burnett v. Tyco Corporation, et al. No. 98-6477

also Williams 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. Analysis

Burnett’s sole contention is that the district court erred in

finding 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.

In Black 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 and

bonus 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 you

No. 98-6477 Burnett v. Tycthere [at a biker bar] Saturday nigand was referred to as a “broad.” 

Although these alleged incid

consistently over a period of four mdefendant was entitled to judgmenthe Harris test because under the to

the comments were merely offeninsufficient to support the jury’s ve

court deemed important the fact thwere not directed at plaintiff[.]” occurring conduct in Black, Burnegiving rise to a hostile work envbeginning and at the end of a six allegations in the instant appeal arin Black. Additionally, the two cbeen made by Phillips were nstatements made in Black. The facdirected at Burnett neither removunder Title VII nor cures their infr

Burnett principally relies upon A

this court reversed a summarTransAmerica on a hostile environ

plaintiff alleged discriminatory conoffensive comments made over a pone of the statements was specifAbeita. The statement was mTransAmerica who asked Abeita, “shoes, yellow underwear too?” Abother alleged incidents concerneinterest in other women, includinphoto session in order to meet comments that “were not sexual in degrading gender stereotyping.” granted summary judgment to Transeveral offensive comments over a not present any evidence strongeBlack. See id. at 252.