                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 12, 2006
                             No.  05-15722                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No.  02-02652-CV-CC-1

CELLINI D. PARKER,


                                                           Plaintiff-Appellant,

                                  versus

ATLANTA NEWSPAPERS NAME HOLDING CORPORATION,
COX ENTERPRISES INC., 


                                                        Defendants-Appellees. 


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (June 12, 2006)

Before BLACK, CARNES and BARKETT, Circuit Judges. 

PER CURIAM:
      Cellini Parker appeals the district court’s grant of summary judgment to

defendants Atlanta Newspapers Name Holding Corporation and Cox Enterprises,

Inc. on her Title VII sexual harassment claim.  The district court held that Parker

did not create a genuine issue of material fact as to whether the harassment she

suffered was so severe or pervasive that it created a discriminatorily abusive work

environment.  We reverse the district court’s grant of summary judgment and

remand for further proceedings. 

      Cellini Parker is a production worker in the mail room at the defendants’

Gwinnett County Printing Plant in Norcross, Georgia.  Parker was assigned to

work at one of the insert machines which gathers and collates supplements for the

Atlanta Journal-Constitution’s newspapers.  Each machine includes multiple

“hoppers” at which production workers feed inserts into the machine.  Each insert

machine is controlled by two operators who assign production workers, like

Parker, to work at particular hoppers.  Eric Cannon was one of the operators on the

insert machine Parker was assigned to.  Therefore, as an operator Cannon had the

authority to tell Parker which hopper she would be responsible for, but he did not

have the authority to discipline Parker or to fire her. 

      When Parker was assigned to Cannon’s insert machine he told her that

“pretty girls don’t last on a job like this for long.”  From that point forward,



                                            2
Cannon began making sexually vulgar and demeaning comments to Parker on a

daily basis.  Cannon’s comments included: “I want to fuck you for your birthday.” 

“When are you going to let me taste you?” “ Parker, I know it’s good and tight

cause you’ve never had kids.” “ You always have your legs open as if you want

someone’s head between them.” “ You have nice round breasts.” “ You have some

juicy thighs.”  Parker also alleges that Cannon physically harassed her by rubbing

her hands, shoulders and elbows and standing “disturbingly close to her.” 

      Additionally, Parker stated that Cannon treated her more harshly than the

other employees assigned to his insert machine.  Cannon would routinely assign

her to the most difficult hopper on the machine and also require Parker to remain at

difficult hopper stations rather than going through the normal rotation which

included shifts at the easier positions.  It was a part of Cannon’s job requirements

that she be able to run any hopper on the machine without assistance; however,

according to Parker, it was normal practice for employees to assist one another on

the most difficult hoppers.  Parker asserts that Cannon would not permit other

employees to assist her at these positions. 

      As a result of these incidents Parker brought suit in federal court alleging

violations of Title VII and various state law tort claims.  The district court granted

summary judgment to the defendants on all Parker’s claims.  Parker appeals the



                                              3
district court’s grant of summary judgment to the defendants on her Title VII claim

only. 

        We review the district court’s grant of summary judgment de novo.  Key

West Harbour Development Corp. v. City of Key West, 987 F.2d 723, 726 (11th

Cir.  1996).  In so doing, we view the evidence and all factual inferences in the light

most favorable to Parker as the nonmoving party to determine whether any genuine

issue of material fact exists and whether the defendants are entitled to judgment as

a matter of law.  Id.

        In order to establish a hostile work environment sexual harassment claim

under Title VII an employee must show: “(1) that he or she belongs to a protected

group; (2) that the employee has been subject to unwelcome sexual harassment,

such as sexual advances, requests for sexual favors, and other conduct of a sexual

nature; (3) that the harassment must have been based on the sex of the employee;

(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) a basis for holding the employer liable.”  Mendoza v. Borden,

Inc., 195 F.3d 1238, 1245 (11th Cir.  1999).  The only elements that the defendants

contest are, the fourth and fifth ones, whether the harassment was so severe and

pervasive as to alter the terms and conditions of Parker’s employment and whether



                                          4
a basis for holding the employer liable exists.1 The district court held that the

harassment was not sufficiently severe and pervasive and, therefore, did not

address the final element. 

      The fourth element, which the district court did address, requires that

harassing conduct be severe or pervasive enough to alter the terms and conditions

of employment.  This element has both a subjective and objective component.  Id.

at 1246.  The employee must “subjectively perceive” the harassing conduct as

severe and pervasive and this perception must be objectively reasonable.  Id. This

Court has identified four factors to aid courts in evaluating the objective

reasonableness of an employee’s perception that conduct is severe and pervasive



      1
       The defendants contend that the facts in its “Statement of Undisputed
Material Facts” attached to its motion for summary judgment should be deemed
admitted by the plaintiffs.  According to the Northern District of Georgia’s Local
Rule 56.1, a movant for summary judgment must attach a separate statement of
material facts as to which the movant contends there is no genuine issue of material
fact.  The Rule also requires the respondent to include a response to the movant’s
statement of undisputed facts.  Each of the movant’s facts will be deemed admitted
unless the respondent “directly refutes the movant’s fact with concise responses
supported by specific citations to evidence.”  N.D. Ga. Local Rule 56.1.  The
defendants argue that because Parker did not file a separate statement of facts in
compliance with this court rule, we must accept each of the defendant’s facts in the
“Statement of Undisputed Material Facts” as true.  Parker did reply to the
Statement of Undisputed Material Facts attached to the defendants’ first motion for
summary judgment and incorporated that reply by reference in her response to the
defendants’ second motion for summary judgment.  The district court did not
discuss Rule 56.1 in its decision, and we likewise will not apply it in the first
instance here on appeal. 

                                           5
enough to alter the terms and conditions of employment: “(1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee’s job performance.”  Id.

      Parker has established a genuine issue of material fact about whether she

subjectively perceived the harassment as severe and pervasive enough to create a

hostile work environment.  Parker stated that Cannon’s “comments and actions

made me fear coming to work.  I was sick and in shock by Cannon’s conduct and

the lack of management concerns.”  Because that statement creates a genuine issue

of material fact about her subjective perception, the next question we must answer

is whether her belief was objectively reasonable.  See Mendoza, 195 F.3d at 1246. 

      The district court held that Parker had not established a genuine issue of fact

as to whether the harassment was objectively severe and pervasive because (1)

Parker had not shown that Cannon’s conduct was physically threatening or

humiliating, (2) there was no actual interference with Parker’s job performance,

and (3) Cannon was not Parker’s supervisor and did not have the authority to

discipline or terminate her. 

      Parker claims that she was subject to daily harassment.  She alleges that

Cannon made sexually vulgar and demeaning statements to her “every single time



                                          6
she was at work.”  Parker also alleges that Cannon touched her hands, elbows and

shoulders a number of times and would stand “disturbingly close to her, nearly

pressing his body against hers.”  The defendants contend that these incidents

occurred when Cannon was training Parker.  Parker also alleges that when she

refused Cannon’s advances, he made her work harder than others by assigning her

to the most difficult hopper on the insert machine and taking her out of the normal

rotation so that she had to remain at that position for long periods of time without

anyone to assist her. 

      Parker has established the objective reasonableness of her perception that

she was subjected to severe and pervasive harassment that created a

discriminatorily abusive work environment.  Under the four factors which we

consider to determine this, there is no doubt that the first factor weighs in Parker’s

favor.  The conduct occurred frequently.  She testified, and the defendants do not

appear to dispute, that Cannon’s unwelcome comments were made “every single

time she was at work” for a period of several months. 

      Under the second factor, the offensive and demeaning nature of many of

Cannon’s comments indicates that the verbal harassment which Parker had to

endure was severe.  The comments were undeniably sexually explicit and

repeatedly referred to Parker’s anatomy and Cannon’s desire to have sex with her. 



                                           7
It is also significant that Parker was a production worker on the insert machine that

Cannon operated.  Parker had to work in close proximity to Cannon at whatever

hopper he determined that she should run.  Parker had nowhere to go where she

could escape Cannon’s unwelcome attention. 

      The district court’s problem with Parker’s claim was the other two factors. 

It determined that Cannon’s conduct was not physically threatening or humiliating

and did not actually interfere with Parker’s job performance.  Parker argues that the

incidents in which Cannon touched her on the hands, arms and shoulders and stood

too close to her were physically humiliating.  She also contends that Cannon

interfered with her job performance by treating her more harshly than other

employees, assigning her to the most difficult position for hours at a time and not

permitting anyone else to assist her. 

      Parker apparently concedes that the touching and standing too close

incidents occurred while Cannon was training her.  However, in conjunction with

Cannon’s comments, we cannot rule out the possibility that these physical

incidents were objectively threatening or humiliating.  Even if this factor does not

ultimately support Parker’s claim, we, unlike the district court, do not believe that

its absence necessarily indicates that the harassment was not severe and pervasive. 

      We also disagree with the district court’s conclusion that Cannon did not



                                           8
interfere with Parker’s job performance.  Although Cannon was not Parker’s

supervisor, he was the operator of the insert machine that Parker was assigned to

and had the authority to determine the hopper where Parker would work.  Parker

has alleged that Cannon would take her out of the normal rotation and force her to

work extra hours at the most difficult position.  On at least one occasion he

instructed another employee not to assist Parker at one of the hoppers.  Parker’s job

duties did require her to be able to operate a hopper without assistance, but that

does not mean that Cannon did not interfere with Parker’s job performance.  Parker

alleges that she was treated unfairly because Cannon treated her more harshly than

other employees on his machine.  The fact that the assignments Cannon gave

Parker were technically within the duties of her position does not alone decide the

question.  If Cannon singled Parker out for harsher treatment than other employees

on his machine, that may have affected her job performance.  That is an issue that a

jury needs to decide. 

      This case is similar to Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269

(11th Cir.  2002), where we held that the plaintiff had presented enough evidence

from which a reasonable jury could find that the harassment he faced was severe

and pervasive.  Miller involved a race discrimination hostile environment claim;

however, the analysis is the same as that for a hostile environment claim based on



                                           9
sexual harassment.  See id. at 1275–76 (citing sexual harassment cases in

discussing the elements of the plaintiff’s hostile environment racial harassment

claim).  Miller’s co-worker directed ethnic slurs at him three to four times a day. 

Id. at 1276.  As in this case, Miller was subjected to purely verbal, rather than

physical, harassment, although we did find that the harassment was “physically

threatening” because of the intimidating manner in which many of the slurs were

spoken.  Id. Similarly, although Parker may not have been subject to physical

harassment, some of Cannon’s comments, such as telling her “I want to fuck you”

reasonably could be perceived as physically threatening. 

      We think that Parker has presented evidence from which a jury might find

that she was subject to a “continuous barrage of sexual harassment” such as we

found actionable in Johnson v. Booker T. Washington Broadcasting Service, Inc.,

234 F.3d 501, 509 (11th Cir.  2000).  Like the Court in Johnson, we distinguish

Parker’s case from other cases where we have determined that the harassment was

not severe and pervasive because a plaintiff was subject to “fewer instances of less

objectionable conduct over longer periods of time.”  See id. (citing Mendoza v.

Borden, Inc., 195 F.3d 1238, 1242–43 (11th Cir.  1999), and Gupta v. Fl.  Bd.  of

Regents, 212 F.3d 571, 585 (11th Cir.  2000)).  Parker stated that she was subject to

Cannon’s unwelcome comments on a daily basis, every time she was at work, for a



                                          10
period of several months.  Cannon’s statements were offensive and demeaning and

were of an overtly sexual nature.  Cf.  Gupta, 212 F.3d at 583 (noting that much of

alleged harassment was conduct “that no reasonable person would consider to be of

a gender-related or sexual nature”).  There is no possibility that Cannon’s

statements were misinterpreted by Parker. 

      Parker has presented enough evidence to create a genuine issue of material

fact as to whether the harassment she faced was sufficiently severe and pervasive

to create a hostile working environment.  The district court erred in granting

summary judgment to the defendants on that element of Parker’s claim.  The

district court’s order granted summary judgment solely on the fourth element and

did not address the fifth element of Parker’s claim, which is whether a basis for

holding the defendants liable exists.  We think it is appropriate to remand this case

to the district court for full consideration of that issue.  We express no opinion on

whether a basis for holding the defendants liable exists. 

      Therefore, the district court’s order granting summary judgment to the

defendants is REVERSED and the case is REMANDED to that court for further

proceedings. 




                                          11
