                                                                          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
