RECOMMENDED FOR FULL-TEXT PUBLICATION 12 Burnett v. Tyco Corporation, et al. No. 98-6477 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0051P (6th Cir.) File Name: 00a0051p.06 merely inappropriate. As we noted in Williams, 182 F.3d at 563, this “element of physical invasion” exceeds conduct that is “merely crude, offensive, and humiliating.” I cannot overlook the severity of this physical contact. UNITED STATES COURT OF APPEALS Furthermore, the district court labeled both of Phillips’s FOR THE SIXTH CIRCUIT comments to Burnett as “mere offensive utterance[s].” _________________ Phillips’s statement, “Since you have lost your cherry, here’s

; one to replace the one you lost,” was more than merely

 offensive. Unlike most of the comments found to be of JENNY BURNETT,  inadequate severity in Black and Abeita, this comment was Plaintiff-Appellant,  made directly to Burnett. As well, the comment was an

 explicit reference to a private body part, her hymen. I cannot No. 98-6477 agree with the majority’s dismissal of this comment as v.  innocuous. Such a blatantly sexual comment addressed > directly to Burnett by her supervisor in the presence of other TYCO CORPORATION and  employees exceeded the excusable realm of crude and  Defendants-Appellees.  GRINNELL CORPORATION, adolescent behavior.  Although the number of incidents alleged by Burnett–she 1 presents three incidents of inappropriate conduct–is less than those alleged in Black, Abeita, or Williams, this should not be Appeal from the United States District Court determinative. When viewed under the totality of the for the Western District of Tennessee at Jackson. circumstances approach, the severe nature of these incidents No. 96-01132—James D. Todd, District Judge. distinguishes the present case. At a minimum, these facts create a genuine of issue of material fact as to whether the Argued: October 27, 1999 work environment was objectively hostile. Therefore, I respectfully dissent. Decided and Filed: February 11, 2000 Before: MARTIN, Chief Judge; SUHRHEINRICH and SILER, Circuit Judges. _________________ COUNSEL ARGUED: 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, for Appellant. Michael G. McLaren, Memphis, Tennessee,

1 2 Burnett v. Tyco Corporation, et al. No. 98-6477 No. 98-6477 Burnett v. Tyco Corporation, et al. 11

Cheryl Rumage Estes, THOMASON, HENDRIX, HARVEY, We noted that a Title VII violation may exist even when no JOHNSON & MITCHELL, Memphis, Tennessee, for single episode of sexual harassment would be sufficient to Appellees. create a hostile environment. See id. at 564. We stressed that the totality of the circumstances approach is the “most basic SILER, J., delivered the opinion of the court, in which tenet” of the hostile work environment cause of action. Id. at SUHRHEINRICH, J., joined. MARTIN, C. J. (pp. 10-12), 564. More specifically, we found that incidents with an delivered a separate dissenting opinion. “element of physical invasion” were “not merely crude, offensive, and humiliating.” Id. _________________ Under Meritor Savings Bank, 477 U.S. at 67, and Harris, OPINION 510 U.S. at 21, sexual harassment is actionable under Title _________________ VII if the alleged conduct is sufficiently severe or pervasive. It need not be both. Burnett does not base her claim on the SILER, Circuit Judge. Plaintiff Jenny Burnett sued pervasive nature of Phillips’s conduct, by alleging that defendants Tyco Corporation and Grinnell Corporation Phillips’s conduct was ongoing or continual. Rather, she asks (“Grinnell”) under Title VII, 42 U.S.C. § 2000e et seq., this Court to examine whether the aggregate severity of alleging that certain sexual statements and other conduct were Phillips’s conduct was sufficient to create a hostile work sufficiently severe or pervasive to constitute a hostile working environment. The district court and the majority have failed environment. The district court granted summary judgment to examine Burnett’s evidence of a hostile work environment to defendants. We affirm the grant of summary judgment under the totality of the circumstances approach. Both have because the allegations do not create a genuine issue of broken out the individual incidents and determined that none material fact as to whether the conduct was sufficiently severe alone was adequately “severe” to create a hostile work or pervasive to support a finding of a hostile working environment. The majority creates a scorecard, finding one environment. act to be severe and two to be innocuous. While I do not fully agree with their conclusions, I object more strongly to their I. BACKGROUND method of computation. The majority concludes that these Burnett was an employee of Grinnell1 for over nineteen numbers are insufficient to create an issue of material fact as years, during which time she alleges that she was sexually to whether the conduct was sufficiently severe to create a harassed. Burnett points to three specific instances in which hostile work environment. In doing so, the majority fails to Jim Phillips, personnel manager for Grinnell, engaged in examine the aggregate effect of the incidents. See Williams, offensive conduct. Burnett also submits complaints from 187 F.3d at 564. other female Grinnell employees indicating that they have The district court found that Phillips’s act of reaching been offended by Phillips’s inappropriate behavior. inside Burnett’s blouse and placing a cigarette pack under her The first instance of alleged harassment occurred sometime bra strap was merely inappropriate. The majority properly in July 1994 at a meeting of Grinnell’s packing department. acknowledges this error and concedes that this physical contact was a battery. The severity of Phillips’s act is enhanced because this was unwelcome physical contact of a very personal form. Reaching inside someone else’s clothing, 1 Tyco International (US) Inc. is the parent company of Grinnell especially someone’s undergarments, cannot be considered Corporation. Grinnell, as used herein, refers to both defendants. 10 Burnett v. Tyco Corporation, et al. No. 98-6477 No. 98-6477 Burnett v. Tyco Corporation, et al. 3

_________________ Burnett stated that Phillips entered the room and began telling a story about a woman he had recently seen. While telling DISSENT this story, he allegedly placed a pack of cigarettes containing _________________ a lighter inside Burnett’s tank top and brassiere strap. Burnett stated that she was stunned, shocked, and exposed. However, BOYCE F. MARTIN, JR., Chief Judge, dissenting. In she also testified that Phillips pulled the strap up just enough Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993), the to insert the cigarette pack and that the resulting exposure was Supreme Court acknowledged that determining whether a no greater than it would have been had she merely leaned over work environment is objectively hostile or abusive is not a while wearing the tank top. “mathematically precise test.” Because this imprecise test requires careful consideration of the aggregate effect of the The second alleged incident occurred some two weeks later offensive factual incidents endured by Jenny Burnett, rather at another departmental meeting. On this occasion, Burnett than simply a tallying of the occurrences, I must respectfully was coughing and Phillips allegedly gave her a cough drop dissent. while stating, “Since you have lost your cherry, here’s one to replace the one you lost.” In Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), the Court defined hostile work environment sexual The third incident allegedly occurred on December 29, harassment: “For sexual harassment to be actionable, it must 1994. Burnett was wearing a Christmas sweater that read be sufficiently severe or pervasive to alter the conditions of “Deck the Malls.” As Phillips walked by Burnett, he [the victim’s] employment and create an abusive working allegedly stated to her “Dick the malls, dick the malls, I environment.” In Harris, the Court provided a nonexclusive almost got aroused.” list of factors for identifying a hostile work environment: “the frequency of the discriminatory conduct; its severity; whether Finally, other allegations of harassing behavior by Phillips it is physically threatening or humiliating, or a mere offensive are presented in two affidavits of fellow Grinnell employees. utterance; and whether it unreasonably interferes with an In the first affidavit, a fellow female employee stated that employee’s work performance.” Harris, 510 U.S. at 23. based on her personal knowledge of how women were treated by men at Grinnell she felt like “Grinnell [was] more like a The majority fails to acknowledge the impact of our Court’s whorehouse than a plant.” Additionally, a second affidavit recent decision in Williams v. General Motors Corporation, included a form filled out by a female employee that was 187 F.3d 553 (6th Cir. 1999). In Williams, we reversed the placed in Grinnell’s suggestion box. The suggestion form district court’s grant of summary judgment in favor of the alleges that “[p]ractically all of the women down here has had defendant. The plaintiff alleged multiple acts creating a a filthy remark from this man - Jim Phillips - including hostile work environment: foul language, sexual comments myself.” Under Abeita v. TransAmerica Mailings, Inc., 159 directed at plaintiff, at least one incident of physical contact, F.3d 246 (6th Cir. 1998), “this evidence is irrelevant at this perceived inequities of treatment, and pranks or annoying stage to plaintiff’s hostile environment . . . [claim] because conduct by co-workers. See id. at 559, 562. We held the there is no evidence that plaintiff was aware of these actions district court erred in its dismissal of these incidents as at the time.” Id. at 249 n.4. Thus, we will address only the “‘infrequent, not severe, not threatening or humiliating, but three allegations of Phillips’s behavior directed to, and with merely offensive.’” Id. at 563. We found the district court the knowledge of, Burnett. failed to consider the totality of the circumstances and thereby “robbed the incidents of their cumulative effect.” Id. at 561. 4 Burnett v. Tyco Corporation, et al. No. 98-6477 No. 98-6477 Burnett v. Tyco Corporation, et al. 9

Following the third instance of alleged harassment, Burnett men and women routinely interact,’ and therefore summary filed a complaint with the Equal Employment Opportunity judgment was inappropriate.” Id. at 564 (citation omitted). Commission (“EEOC”). Grinnell alleges that it investigated the charges contained in the EEOC complaint, but could not The Harris standard requires that the conduct be substantiate them. No relief was granted by the EEOC, sufficiently severe or pervasive to alter the conditions of the leading Burnett to institute this action. Grinnell moved for plaintiff’s employment and thereby create a hostile or abusive summary judgment, which was granted on the basis that working environment. In the instance case, Burnett’s three Burnett failed to show that there were material facts in dispute allegations occurring at the beginning and end of a six-month regarding whether the conduct complained of was sufficiently period are clearly not as pervasive as the fifteen incidents severe or pervasive to create a working environment that a which occurred in Williams over a year-long period, or the reasonable person would find hostile or abusive. various remarks made over the course of seven years in Abeita. Indeed, though it was clearly offensive, Phillips’s II. DISCUSSION behavior cannot be said to be even as pervasive as the several remarks made regularly over a four-month period in Black A. Standard of Review which were insufficient to support the jury’s verdict therein. Thus, the occurrence of the three allegations over the six- This court reviews de novo a district court's grant of month period does not give rise to a genuine issue of material summary judgment. See Smith v. Ameritech, 129 F.3d 857, fact as to whether the conduct was sufficiently pervasive to 863 (6th Cir. 1997). Summary judgment is appropriate only create a hostile work environment. when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. However, the cigarette pack incident was more severe than See Fed. R. Civ. P. 56(c). In reviewing a motion for summary any of the conduct alleged in Black, Abeita, or even Williams judgment, the court must view the evidence and draw all because there was physical contact. Given Williams’s reasonable inferences in favor of the non-moving party. See emphasis upon an ‘element of physical invasion,’ this incident Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 is fairly severe and perhaps even constitutes a battery. U.S. 574, 587 (1986). “Where the record taken as a whole However, under the totality of the circumstances, a single could not lead a rational trier of fact to find for the non- battery coupled with two merely offensive remarks over a six- moving party, there is ‘no genuine issue for trial.’” Id. month period does not create an issue of material fact as to (quoting First National Bank of Ariz. v. Cities Service Co., whether the conduct alleged was sufficiently severe to create 391 U.S. 253, 289 (1968)). a hostile work environment. B. Hostile Work Environment. AFFIRMED. Title VII of the Civil Rights Act of 1964 prohibits discrimination by an employer “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex[.]” 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive 8 Burnett v. Tyco Corporation, et al. No. 98-6477 No. 98-6477 Burnett v. Tyco Corporation, et al. 5

This court reversed, holding that the “District Court’s work environment.” Id. at 66. The Court further explained analysis omits the plaintiff’s claim that Katz’s sexual that “not all workplace conduct that may be described as comments were ‘commonplace,’ ‘ongoing,’ and ‘continuing.’ ‘harassment’ affects a ‘term, condition, or privilege’ of This omission is critical because . . . [the statements] appear employment within the meaning of Title VII.” Id. at 67 to be of approximately equal severity to those found in (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)). Black.” Id. at 252. In the instant case, Burnett does not Finally, Meritor established that “[f]or sexual harassment to allege that Phillips’s conduct was commonplace, ongoing, or be actionable, it must be sufficiently severe or pervasive ‘to continuing. Indeed, three alleged instances spread out at the alter the conditions of [the victim’s] employment and create beginning and at the end of a six-month period are not an abusive working environment.’” Id. (quoting Henson v. commonplace, ongoing, or continuing, and are therefore less City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). pervasive than the discriminatory conduct in Abeita. The hostile or abusive environment standard has been both The severity of the incidents is most properly evaluated in affirmed and elaborated upon by the Court on several light of the recent Williams decision. In Williams, there were occasions. See Faragher v. City of Boca Raton, 524 U.S. fifteen separate allegations of sexual harassment over a period 775, 787-88, 118 S. Ct. 2275, 2283 (1998); Burlington Indus., of one year that were alleged to have created a hostile Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S. Ct. 2257, 2265 working environment. The allegations included derogatory (1998); Oncale v. Sundowner Offshore Serv., Inc., --- U.S. ---, and profane remarks directed at the plaintiff, sexually explicit 118 S. Ct. 998, 1001 (1998); Harris v. Forklift Systems, Inc., comments directed at plaintiff, offensive comments directed 510 U.S. 17, 21 (1993). Importantly, in Harris, the Court at women in general, denial of plaintiff’s overtime, and the noted that the Meritor standard “takes a middle path between exclusion of plaintiff from certain workplace areas. See making actionable any conduct that is merely offensive and Williams, 187 F.2d at 559. The district court granted requiring the conduct to cause a tangible psychological summary judgment to General Motors on the grounds that the injury.” Harris, 510 U.S. at 21. Thus, Title VII is not “a alleged incidents, though offensive, were not severe or general civility code for the American workplace.” Oncale, pervasive enough to constitute a hostile work environment. --- U.S. at ---, 118 S. Ct. at 1002. “‘The critical issue . . . is See id. at 560. whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the This court reversed, holding that the district court failed to other sex are not exposed.’” Id. (quoting Harris, 510 U.S. at evaluate the allegations by considering the totality of the 25 (Ginsburg, J., concurring)). circumstances and erred by concluding that alleged conduct must be explicitly sexual in order to have created a hostile Several circumstances are to be considered in determining work environment. See id. at 561-62. The latter portion of whether an environment is “hostile” or “abusive,” which this holding is immaterial to this appeal because all the “may include the frequency of the discriminatory conduct; its conduct at issue was sexual in nature. The most relevant severity; whether it is physically threatening or humiliating, circumstance noted in Williams was that three of the alleged or a mere offensive utterance; and whether it unreasonably incidents “were not merely crude, offensive, and humiliating, interferes with an employee’s work performance.” Harris, but also contained an element of physical invasion.” Id. at 510 U.S. at 23. The use of the term “may” reiterates the 563. This court held that “Williams’s allegations, taken as a Court’s insistence that this is a non-exhaustive list of possible whole, raise a question whether Williams was subjected to circumstances to consider. Thus, the issue “can be more than ‘genuine but innocuous differences in the ways determined only by looking at all the circumstances.” Id.; see 6 Burnett v. Tyco Corporation, et al. No. 98-6477 No. 98-6477 Burnett v. Tyco Corporation, et al. 7

also Williams v. General Motors Corp., 187 F.3d 553, 562 there [at a biker bar] Saturday night dancing on the tables,” (6th Cir. 1999) (stating that “it is well-established that the and was referred to as a “broad.” See id. court must consider the totality of circumstances.”). Although these alleged incidents took place fairly C. Analysis consistently over a period of four months, this court held that defendant was entitled to judgment as a matter of law under Burnett’s sole contention is that the district court erred in the Harris test because under the totality of the circumstances finding that no genuine issue of material fact exists as to the comments were merely offensive and were therefore whether there was an objectively hostile work environment at insufficient to support the jury’s verdict. See id. at 826. The Grinnell. Grinnell responds that Burnett has not shown that court deemed important the fact that “most of the comments Phillips’s conduct was sufficiently severe or pervasive to were not directed at plaintiff[.]” Id. Unlike the regularly create an objectively hostile work environment and that there occurring conduct in Black, Burnett here alleges that the acts has been no showing that a condition of Burnett’s work giving rise to a hostile work environment occurred at the environment has been affected. The three most recent hostile beginning and at the end of a six month period. Thus, the environment cases emanating from this Circuit show that allegations in the instant appeal are less pervasive than those there is no genuine issue of material fact in this matter. in Black. Additionally, the two comments alleged to have been made by Phillips were no more severe than the In Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.), statements made in Black. The fact that the statements were cert. denied, 118 S. Ct. 172 (1997), this court reversed a jury directed at Burnett neither removes their innocuous nature verdict which found that Black was subjected to a hostile under Title VII nor cures their infrequency. work environment while she was an employee of Zaring Homes. Black alleged that she was subjected to various Burnett principally relies upon Abeita, in which a panel of discriminatory comments made at bi-weekly meetings from this court reversed a summary judgment granted to July to October in 1993. First, at a July meeting, as a TransAmerica on a hostile environment claim. In Abeita, the manager reached for a pastry he stated, “Nothing I like more plaintiff alleged discriminatory conduct in the form of several in the morning than sticky buns.” Id. at 823. The manager offensive comments made over a period of seven years. Only allegedly looked at Black in a suggestive manner while one of the statements was specifically directed at plaintiff making this comment. See id. At the next meeting in August, Abeita. The statement was made by the president of participants joked that a parcel of land located next to a TransAmerica who asked Abeita, “oh yellow dress and yellow Hooters Restaurant should be named “Hootersville,” shoes, yellow underwear too?” Abeita, 159 F.3d at 248. The “Titsville,” or “Twin Peaks.” These jokes allegedly continued other alleged incidents concerned the president’s sexual at several of the bi-weekly meetings. See id. interest in other women, including a model he hired for a photo session in order to meet her, and various other Also in August, while discussing her job performance and comments that “were not sexual in nature but arguably reflect bonus structure with her immediate supervisor, Black was degrading gender stereotyping.” Id. The district court told that she “was paid great money for a woman.” Id. at 824. granted summary judgment to TransAmerica, holding that the At a September meeting, Black allegedly felt uncomfortable several offensive comments over a period of seven years did when jokes were made about her pronunciation of the name not present any evidence stronger than that addressed in “Busam,” which was apparently pronounced “bosom.” See Black. See id. at 252. id. Finally, at two meetings in October, Black was asked by the president of the defendant corporation, “Say, weren’t you