                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0529n.06

                                        No. 15-4049
                                                                                 FILED
                                                                            Sep 13, 2016
                         UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

KAREN ELAINE GRAVES,                         )
                                             )
       Plaintiff-Appellant,                  )
                                             )
v.                                           )
                                                  ON APPEAL FROM THE UNITED
                                             )
                                                  STATES DISTRICT COURT FOR THE
DAYTON GASTROENTEROLOGY, INC.,               )
                                                  SOUTHERN DISTRICT OF OHIO
and DAVID SCHUM,                             )
                                             )
       Defendants-Appellees.                 )
                                             )



BEFORE:        DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge.               In this appeal we are asked to

determine whether the harassment plaintiff Kim Graves experienced at work by defendant David

Schum was based on her gender and was so objectively severe or pervasive as to constitute a

discriminatory work environment. During Graves’s employment at Dayton Gastroenterology,

she received two text messages from Schum that included comments about sex. She reported the

messages to her supervisor, who reprimanded Schum. Schum then began making Graves’s life

difficult at work. Graves eventually resigned from her job and filed suit against Schum and

Dayton Gastroenterology, alleging discrimination based on sex stemming from a hostile work

environment.    The district court granted summary judgment in favor of the defendants,

concluding that Graves failed to demonstrate a genuine dispute of fact as to whether the

harassment she experienced was based on her sex and whether it was sufficiently severe or
No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


pervasive to create a hostile work environment. Because we agree that Graves was not subjected

to severe or pervasive harassment based on sex, we affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND


       Beginning in May 2012, Graves, a registered nurse, worked as the lead certified nurse

anesthetist at Dayton Gastroenterology. Her duties in that position included managing staff in

the anesthesia department, scheduling work for the other nurse anesthetists, monitoring time and

attendance, developing policy and procedures, educating staff, and liaising between anesthesia

staff and physicians. Graves made recommendations regarding the hiring and firing of staff to

her supervisor, Craig Penno. As chief executive officer, Penno had ultimate authority to approve

all employment actions.


       After a couple of months as lead nurse anesthetist, Graves requested to leave the position

because she wanted to focus on patient care and avoid the extra work and responsibility required

by the management role. Graves remained lead nurse anesthetist until February 2013, when

Schum temporarily assumed the position.


       Graves and Schum had worked together since May 2012, and Graves looked upon Schum

as a friend. Graves and Schum periodically exchanged text messages, but they did not discuss

anything that Graves would not have talked to any other colleague about. In January 2013, while

on vacation, Graves texted Schum to tell him when she would return to work and stated, “I like

being on vacation. I have done nothing all week.” Schum responded, “I [sic] happy for you, you

just have fun and wild sex.” Graves was offended by this message and felt it was inappropriate

and unprofessional, but she did not convey this to Schum. A week later, Schum texted Graves



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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


again, apparently out of the blue, saying, “You and your husband lay out a wonderful dinner an

[sic] have wild sex on the table!!!!! I do think about sex all the time. I [sic] just not getting it.”

        The next day, Graves reported both inappropriate text messages to Penno, who spoke

with Schum. Schum texted Graves an apology and sought to discuss the matter with her, but

Graves refused to speak to him about anything not work-related. Schum became very angry and

began treating Graves rudely. During the next two months, he allegedly addressed her curtly,

refused to respond to her questions about work assignments, would not relieve her from her

duties despite regularly relieving other employees, gave her the most difficult assignments,

denied her lunch breaks on several occasions, threw a chart at her, failed to provide her with

updated work schedules, and denied her requests for days off. Schum told Graves on numerous

occasions that she brought his ill will upon herself by reporting the text messages to Penno and

said that “if [she] was wondering what hell was like, [she] would soon see it here at Dayton

Gastro.”

        Graves later alleged that Schum’s actions made it “unbearable” for her to continue

working at Dayton Gastroenterology and caused her to suffer nausea, anxiety, and headaches for

the remainder of the time she was employed there. On March 30, 2013, Graves submitted her

resignation to Dayton Gastroenterology, effective May 30. She started a new job as a nurse

anesthetist for a different employer in June 2013.


        Graves brought suit against Schum and Dayton Gastroenterology under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and Ohio Revised Code § 4112 for

discriminating against Graves based on her gender by creating a hostile work environment. Her

complaint did not include a claim of retaliation. The district court granted summary judgment to

the defendants, and Graves has now appealed.


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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


                                                  ANALYSIS


        We review the district court’s grant of summary judgment and resolution of legal

questions de novo and accept the district court’s factual findings unless they are clearly

erroneous. TransAm. Assurance Corp. v. Settlement Capital Corp., 489 F.3d 256, 259 (6th Cir.

2007). Summary judgment is appropriate when, construing the evidence in the light most

favorable to the nonmoving party, there is no genuine dispute of material fact and the moving

party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(a); Warf v. U.S. Dept. of

Veterans Affairs, 713 F.3d 874, 877 (6th Cir. 2013).


        Title VII prohibits an employer from “discriminat[ing] against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.”                    42 U.S.C. § 2000e-2(a)(1).

“A plaintiff may establish a violation of Title VII by proving that the discrimination based on sex

created a hostile or abusive work environment.” Williams v. Gen. Motors Corp., 187 F.3d 553,

560 (6th Cir. 1999). To prevail on such a claim, a plaintiff must show that (1) she was a member

of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment

complained of was based on her sex; (4) the harassment created a hostile work environment; and

(5) the employer is liable. See Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir.

2016); Waldo v. Consumers Energy Co., 726 F.3d 802, 813 (6th Cir. 2013).1 Because federal

case law interpreting Title VII is generally applicable to sexual harassment claims under Ohio

1
  Some cases from this court have articulated the second element as “subjected to unwelcome sexual harassment,”
see, e.g., Smith, 813 F.3d at 307, but we find that the articulation of the standard in Waldo, 726 F.3d at 813, and
Warf, 713 F.3d at 878, more accurately reflects the rule that “[n]on-sexual conduct may be illegally sex-based and
properly considered in a hostile environment analysis where it can be shown that but for the employee’s sex, he
would not have been the object of harassment.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000);
see also Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007) (“Conduct that is not explicitly race-
based may be illegally race-based and properly considered in a hostile-work-environment analysis when it can be
shown that but for the employee’s race, she would not have been the object of harassment.”).

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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


state law, the same legal framework applies to both Graves’s federal and state law claims.

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).


       The parties dispute whether Graves has demonstrated a genuine question of material fact

regarding the third and fourth elements of her hostile-work-environment claim. To establish that

the harassment she experienced was based on her gender, Graves must show that she would not

have been the object of harassment but for her gender. Bowman, 220 F.3d at 463. To establish

that the work environment was hostile, Graves must show both that she subjectively perceived it

to be hostile and that a reasonable person would have found it to be hostile. Smith, 813 F.3d at

309. Graves fulfilled the subjective prong by stating in her deposition that “[i]t was a hostile

work environment,” an allegation we accept as true from her viewpoint. Whether the work

environment was hostile from an objective perspective, as well as gender-based, is the more

difficult question here.


       In assessing whether Graves established a genuine dispute as to the objective prong, we

must consider the totality of the circumstances, including “the frequency of the discriminatory

conduct; its severity; whether it (was) physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interfere(d) with an employee’s performance.”           Id.

(internal quotation marks and citations omitted; alteration in original).


       The district court concluded that Graves failed to establish a genuine dispute as to

whether the harassment was based on her gender, because the two text messages Schum sent her,

although ostensibly about sex, “were gender-neutral and did not evince an anti-female animus.”

Describing Schum’s comments as “unprofessional,” the district court concluded that they “did

not contain gender-specific epithets nor were they explicitly sexual or patently degrading of


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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


women.” The court went on to find that Schum’s alleged harassment in the form of the two text

messages was not sufficiently severe or pervasive to create a hostile work environment. We

agree.


         First, Schum’s conduct was not harassment based on Graves’s gender. “To be actionable,

the harassment must consist of more than words that simply have sexual content or

connotations.” Hawkins, 517 F.3d at 333. “The critical issue, Title VII’s text indicates, 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.” Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80 (1998) (citation omitted). This typically includes “explicit or implicit proposals

of sexual activity,” id., as well as “non-sexual conduct” that evinces ‘anti-female animus.’”

Williams, 187 F.3d at 565. We have none of that here. There is no suggestion in the record that

Schum or any other Dayton Gastroenterology employee expressed an anti-female animus toward

Graves. There is no evidence in the record of any other sexual statements, any physical sexual

harassment, or any use of derogatory language by Schum. Graves does not allege, for example,

that Schum asked her to have sex with him, touched her or threatened to touch her, made any

comments about her body, used language derogatory to women, or treated any of the other

women in the office inappropriately. Moreover, Graves expressly denied that Schum “ever

request[ed] any sort of sexual favor from [her].” She even admitted that the text messages were

“inappropriate and unprofessional no matter who received [them] . . . , whether it was . . . a man

or another woman.”


         Moreover, although “non-sexual conduct may be illegally sex-based where it evinces

anti-female animus,” Williams, 187 F.3d at 565 (internal quotation marks and citation omitted),

none of the rude behavior Schum directed toward Graves after she complained to Penno about

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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


the text messages fits this description. Instead, as Graves conceded in her deposition, Schum’s

conduct stemmed from his anger at Graves for reporting the text messages to Penno, not from

animus based on her gender. As a result, Graves has not shown that she was subjected to

unequal treatment because of her gender nor has she provided any basis for inferring that

Schum’s facially gender-neutral conduct was in fact discrimination based on gender. See Waldo,

726 F.3d at 815 (inferring a gender-discrimination basis for facially-neutral incidents from the

use of gender-specific demeaning language and the ostracism of the plaintiff, the only woman in

the office).


        Second, even if Schum’s conduct was based on Graves’s gender, it was objectively

neither severe nor pervasive enough to constitute a hostile work environment. At most, Schum’s

text messages were “isolated incidents” that do not “amount to discriminatory changes in the

‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998). Moreover, Graves has not cited, and our research has failed to uncover, a case finding a

hostile work environment under circumstances similar to the ones in this case. To the contrary,

the cases we have reviewed tend to negate the existence of a hostile work environment in this

case. Compare Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th Cir. 2008) (finding a

genuine dispute of fact as to the existence of a hostile work environment where the plaintiff’s

supervisor was preoccupied with sex talk and made unwelcome, persistent, and increasingly

intimidating advances); Hawkins, 517 F.3d at 334–35 (finding a genuine dispute of fact where

the harasser repeatedly made “graphic, personal, and sexually explicit” comments and regularly

touched multiple women); Randolph v. Ohio Dept. of Youth Servs., 453 F.3d 724, 734–36 (6th

Cir. 2006) (finding a genuine dispute of fact where the plaintiff “was subject to daily threats,

derogatory comments, verbal harassment, foul language, and several serious physical assaults to


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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


which members of the opposite sex were not exposed.”); with Clark v. United Parcel Serv., Inc.,

400 F.3d 341, 351–52 (6th Cir. 2005) (comparing cases and finding no hostile work environment

where the plaintiff alleged isolated incidents of her supervisor telling vulgar jokes, twice placing

his vibrating pager on her thigh, and pulling on her overalls after asking what type of underwear

she was wearing); and Knox v. Neaton Auto Prods. Mfg., Inc., 375 F.3d 451, 459–60 (6th Cir.

2004) (finding no hostile work environment where the plaintiff’s co-worker continuously

commented on women’s physical appearances and spoke at the shift meetings about sleeping

with different women).

       Schum’s behavior might have formed the basis of a successful retaliation claim, see

Hawkins, 517 F.3d at 346 (“Title VII permits claims against an employer for coworker

retaliation.”); Akers v. Alvey, 338 F.3d 491, 498 (6th Cir. 2003) (“[S]evere or pervasive

supervisor harassment following a sexual-harassment complaint can constitute retaliation for the

purposes of a Title VII action.”) (internal quotation marks omitted), but Graves did not plead

such a claim in this case. We decline to stretch the hostile-work-environment analysis to fit what

is essentially a retaliation claim, because a legal framework for addressing such claims already

exists. See id.

                                             CONCLUSION


       Viewing the evidence in the light most favorable to the plaintiff, we conclude, as did the

district court, that she has not established a genuine dispute of fact as to whether she was

subjected to severe or pervasive harassment based on her gender. We therefore AFFIRM the

district court’s order granting summary judgment to the defendants.




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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


       KAREN NELSON MOORE, Circuit Judge, dissenting. There are genuine disputes of

material fact both as to whether the harassment was based on sex and as to whether it created a

hostile work environment. Accordingly, I would vacate the grant of summary judgment and

remand to the district court.

       Kim Graves and David Schum initially had an amicable, but professional, relationship.

See R. 18 (Graves Dep. at 99‒100) (Page ID #261‒62). Although they occasionally talked about

their lives outside of work, Graves restricted these conversations to her work history and where

she lived, as well as to limited information about her husband. Id. at 101 (Page ID #263). In

Graves’s words, “Nothing I wouldn’t talk with any other professional about.” Id. Graves and

Schum did not socialize after hours either, save for one occasion when they went to lunch with

another colleague. Id. at 100 (Page ID #262). They were not close friends who shared intimate

details about each other’s lives; they were friendly colleagues whose conversations were almost

always about Dayton Gastroenterology. Schum’s text messages cannot be divorced from this

context.

       In order to prevail on her hostile-work-environment claim, Graves must establish that

Schum’s harassment was “based on sex.” See Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307

(6th Cir. 2016). There are a number of ways in which Graves can do this, including showing that

the behavior was overtly sexual. See Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir.

1999). “[H]arassing behavior that is not sexually explicit but is directed at women and motivated

by discriminatory animus against women [also] satisfies the ‘based on sex’ requirement.” Id.

Graves need not show that Schum was motivated by anti-female animus, however, because his

text messages were overtly sexual.




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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


       Schum’s text messages not only refer to “wild sex,” but also they imagine Graves having

it and express Schum’s desire to have it. R. 18 (Graves Dep. at 104, Def. Ex. K) (Page ID #266,

364). Given the context of their relationship, a reasonable jury could find that Schum was trying

to engage Graves in a conversation about sex, that Schum was doing this because he wanted to

pursue a relationship with Graves, and that his behavior was therefore “based on sex.” See

Williams, 187 F.3d at 560. Requiring defendants to reveal their motives outright would punish

only the most vulgar harassers and reward those smart enough to speak in subtleties.

       That the text messages would be “inappropriate and unprofessional” whether sent to a

woman or a man, as Graves acknowledged in her deposition, R. 18 (Graves Dep. at 105) (Page

ID #267), does not mean that they are “gender-neutral,” R. 26 (Op. at 10) (Page ID #436).

Comments that are inappropriate whether said to a woman or a man may cross the line into

harassing behavior when said to a woman. Social context is key. Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81‒82 (1998). For example, that it would be inappropriate for a white

employee to make disparaging comments about another white employee’s hair does not mean

that the same comments, directed at a black employee, would not constitute harassment based on

race. See generally Lovelace v. BP Products N. Am., Inc., 252 F. App’x 33, 36 (6th Cir. 2007).

Similarly, that it would be inappropriate for a Christian employee to make comments to another

Christian employee suggesting that employee dress up as Osama bin Laden for Halloween does

not mean that the same comments, directed at a Muslim employee, would not constitute

harassment based on religion. See generally Hussain v. Highgate Hotels, Inc., 126 F. App’x 256,

260 (6th Cir. 2005). Finally, Schum’s continued harassment of Graves need not evince an anti-

female animus to be “based on sex”: just as a jury could find that Schum made sexual advances




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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


toward Graves, a jury could find that Schum’s subsequent treatment of her was rooted in sexual

desire and rejection.

       There also is a genuine dispute of material fact as to whether the harassment created a

hostile work environment. The objective component of this inquiry requires us to look at the

totality of the circumstances. Williams, 187 F.3d at 562. “These may include 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Graves alleges that after she

reported Schum to their supervisor, Schum became antagonistic. R. 18 (Graves Dep. at 110‒11)

(Page ID #272‒73). When Graves spoke to Schum, he would either respond curtly or ignore her

entirely, walking away when Graves asked him questions. Id. at 123 (Page ID #284). Schum

also gave her the most difficult assignments, including ones that required Graves work late. Id.

at 134 (Page ID #298). Schum would not give her updated schedules, however, so she often did

not find out about these assignments until the last minute. Id. at 123, 128‒29 (Page ID #284,

289‒90). When it was Schum who had to work late, he made sure Graves stayed at the office

and would not let her go home until he did. Id. at 123‒24 (Page ID #284‒85). According to

Graves, Schum did this at least once a week. Id. at 124 (Page ID #285). Schum denied Graves

her lunch breaks and refused to approve her requests for days off. Id. at 126, 132 (Page ID #287,

293). Schum also threw a patient’s medical chart at Graves while the two were in front of the

patient. Id. at 127 (Page ID #288). These were not isolated incidents; Graves testified that

Schum harassed her daily. Id. at 131 (Page ID #292). Accepting these allegations as true,

Schum’s behavior affected almost every facet of Graves’s life at Dayton Gastroenterology. On

this evidence, a jury could find that Schum’s harassment created a hostile work environment.



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No. 15-4049, Graves v. Dayton Gastroenterology, Inc.


       I would reverse the district court’s grant of summary judgment to the defendants and

allow the case to proceed. Therefore, I respectfully dissent.




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