Jenny Burnett v. TYCO CORPORATION and GRINNELL CORPORATION

12 Burnett v. Tyco Corporation, et al. No. 98-6477
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.
Furthermore, the district court labeled both of Phillips’s
comments to Burnett as “mere offensive utterance[s].”
Phillips’s statement, “Since you have lost your cherry, here’s
one to replace the one you lost,” was more than merely
offensive. Unlike most of the comments found to be of
inadequate severity in Black and Abeita, this comment was
made directly to Burnett. As well, the comment was an
explicit reference to a private body part, her hymen. I cannot
agree with the majority’s dismissal of this comment as
innocuous. Such a blatantly sexual comment addressed
directly to Burnett by her supervisor in the presence of other
employees exceeded the excusable realm of crude and
adolescent behavior.
Although the number of incidents alleged by Burnett–she
presents three incidents of inappropriate conduct–is less than
those alleged in Black, Abeita, or Williams, this should not be
determinative. When viewed under the totality of the
circumstances approach, the severe nature of these incidents
distinguishes the present case. At a minimum, these facts
create a genuine of issue of material fact as to whether the
work environment was objectively hostile. Therefore, I
respectfully dissent.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0051P (6th Cir.)
File Name: 00a0051p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J ENNY BURNETT ,
Plaintiff-Appellant,
v.
TYCO C ORPORATION and
GRINNELL C ORPORATION ,
Defendants-Appellees.
;>

1
No. 98-6477
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 96-01132—James D. Todd, District Judge.
Argued: October 27, 1999
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,

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2 Burnett v. Tyco Corporation, et al. No. 98-6477
1Tyco International (US) Inc. is the parent company of Grinnell
Corporation. Grinnell, as used herein, refers to both defendants.
Cheryl Rumage Estes, THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL, Memphis, Tennessee, for
Appellees.
SILER, J., delivered the opinion of the court, in which
SUHRHEINRICH, J., joined. MARTIN, C. J. (pp. 10-12),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. Plaintiff Jenny Burnett sued
defendants Tyco Corporation and Grinnell Corporation
(“Grinnell”) under Title VII, 42 U.S.C. § 2000e et seq.,
alleging that certain sexual statements and other conduct were
sufficiently severe or pervasive to constitute a hostile working
environment. The district court granted summary judgment
to defendants. We affirm the grant of summary judgment
because the allegations do not create a genuine issue of
material fact as to whether the conduct was sufficiently severe
or pervasive to support a finding of a hostile working
environment.
I. BACKGROUND
Burnett was an employee of Grinnell1 for over nineteen
years, during which time she alleges that she was sexually
harassed. Burnett points to three specific instances in which
Jim Phillips, personnel manager for Grinnell, engaged in
offensive conduct. Burnett also submits complaints from
other female Grinnell employees indicating that they have
been offended by Phillips’s inappropriate behavior.
The first instance of alleged harassment occurred sometime
in July 1994 at a meeting of Grinnell’s packing department.
No. 98-6477 Burnett v. Tyco Corporation, et al. 11
We noted that a Title VII violation may exist even when no
single episode of sexual harassment would be sufficient to
create a hostile environment. See id. at 564. We stressed that
the totality of the circumstances approach is the “most basic
tenet” of the hostile work environment cause of action. Id. at
564. More specifically, we found that incidents with an
“element of physical invasion” were “not merely crude,
offensive, and humiliating.” Id.
Under Meritor Savings Bank, 477 U.S. at 67, and Harris,
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
pervasive nature of Phillips’s conduct, by alleging that
Phillips’s conduct was ongoing or continual. Rather, she asks
this Court to examine whether the aggregate severity of
Phillips’s conduct was sufficient to create a hostile work
environment. The district court and the majority have failed
to examine Burnett’s evidence of a hostile work environment
under the totality of the circumstances approach. Both have
broken out the individual incidents and determined that none
alone was adequately “severe” to create a hostile work
environment. The majority creates a scorecard, finding one
act to be severe and two to be innocuous. While I do not fully
agree with their conclusions, I object more strongly to their
method of computation. The majority concludes that these
numbers are insufficient to create an issue of material fact as
to whether the conduct was sufficiently severe to create a
hostile work environment. In doing so, the majority fails to
examine the aggregate effect of the incidents. See Williams,
187 F.3d at 564.
The district court found that Phillips’s act of reaching
inside Burnett’s blouse and placing a cigarette pack under her
bra strap was merely inappropriate. The majority properly
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,
especially someone’s undergarments, cannot be considered

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

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4 Burnett v. Tyco Corporation, et al. No. 98-6477
Following the third instance of alleged harassment, Burnett
filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”). Grinnell alleges that it investigated
the charges contained in the EEOC complaint, but could not
substantiate them. No relief was granted by the EEOC,
leading Burnett to institute this action. Grinnell moved for
summary judgment, which was granted on the basis that
Burnett failed to show that there were material facts in dispute
regarding whether the conduct complained of was sufficiently
severe or pervasive to create a working environment that a
reasonable person would find hostile or abusive.
II. DISCUSSION
A. Standard of Review
This court reviews de novo a district court's grant of
summary judgment. See Smith v. Ameritech, 129 F.3d 857,
863 (6th Cir. 1997). Summary judgment is appropriate only
when there is no genuine issue of material fact in dispute and
the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c). In reviewing a motion for summary
judgment, the court must view the evidence and draw all
reasonable inferences in favor of the non-moving party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-
moving party, there is ‘no genuine issue for trial.’” Id.
(quoting First National Bank of Ariz. v. Cities Service Co.,
391 U.S. 253, 289 (1968)).
B. Hostile Work Environment.
Title VII of the Civil Rights Act of 1964 prohibits
discrimination by an employer “against any individual 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
No. 98-6477 Burnett v. Tyco Corporation, et al. 9
men and women routinely interact,’ and therefore summary
judgment was inappropriate.” Id. at 564 (citation omitted).
The Harris standard requires that the conduct be
sufficiently severe or pervasive to alter the conditions of the
plaintiff’s employment and thereby create a hostile or abusive
working environment. In the instance case, Burnett’s three
allegations occurring at the beginning and end of a six-month
period are clearly not as pervasive as the fifteen incidents
which occurred in Williams over a year-long period, or the
various remarks made over the course of seven years in
Abeita. Indeed, though it was clearly offensive, Phillips’s
behavior cannot be said to be even as pervasive as the several
remarks made regularly over a four-month period in Black
which were insufficient to support the jury’s verdict therein.
Thus, the occurrence of the three allegations over the six-
month period does not give rise to a genuine issue of material
fact as to whether the conduct was sufficiently pervasive to
create a hostile work environment.
However, the cigarette pack incident was more severe than
any of the conduct alleged in Black, Abeita, or even Williams
because there was physical contact. Given Williams’s
emphasis upon an ‘element of physical invasion,’ this incident
is fairly severe and perhaps even constitutes a battery.
However, under the totality of the circumstances, a single
battery coupled with two merely offensive remarks over a six-
month period does not create an issue of material fact as to
whether the conduct alleged was sufficiently severe to create
a hostile work environment.
AFFIRMED.

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

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6 Burnett v. Tyco Corporation, et al. No. 98-6477
also Williams v. General Motors Corp., 187 F.3d 553, 562
(6th Cir. 1999) (stating that “it is well-established that the
court must consider the totality of circumstances.”).
C. Analysis
Burnett’s sole contention is that the district court erred in
finding that no genuine issue of material fact exists as to
whether there was an objectively hostile work environment at
Grinnell. Grinnell responds that Burnett has not shown that
Phillips’s conduct was sufficiently severe or pervasive to
create an objectively hostile work environment and that there
has been no showing that a condition of Burnett’s work
environment has been affected. The three most recent hostile
environment cases emanating from this Circuit show that
there is no genuine issue of material fact in this matter.
In Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.),
cert. denied, 118 S. Ct. 172 (1997), this court reversed a jury
verdict which found that Black was subjected to a hostile
work environment while she was an employee of Zaring
Homes. Black alleged that she was subjected to various
discriminatory comments made at bi-weekly meetings from
July to October in 1993. First, at a July meeting, as a
manager reached for a pastry he stated, “Nothing I like more
in the morning than sticky buns.” Id. at 823. The manager
allegedly looked at Black in a suggestive manner while
making this comment. See id. At the next meeting in August,
participants joked that a parcel of land located next to a
Hooters Restaurant should be named “Hootersville,”
“Titsville,” or “Twin Peaks.” These jokes allegedly continued
at several of the bi-weekly meetings. See id.
Also in August, while discussing her job performance and
bonus structure with her immediate supervisor, Black was
told that she “was paid great money for a woman.” Id. at 824.
At a September meeting, Black allegedly felt uncomfortable
when jokes were made about her pronunciation of the name
“Busam,” which was apparently pronounced “bosom.” See
id. Finally, at two meetings in October, Black was asked by
the president of the defendant corporation, “Say, weren’t you
No. 98-6477 Burnett v. Tyco Corporation, et al. 7
there [at a biker bar] Saturday night dancing on the tables,”
and was referred to as a “broad.” See id.
Although these alleged incidents took place fairly
consistently over a period of four months, this court held that
defendant was entitled to judgment as a matter of law under
the Harris test because under the totality of the circumstances
the comments were merely offensive and were therefore
insufficient to support the jury’s verdict. See id. at 826. The
court deemed important the fact that “most of the comments
were not directed at plaintiff[.]” Id. Unlike the regularly
occurring conduct in Black, Burnett here alleges that the acts
giving rise to a hostile work environment occurred at the
beginning and at the end of a six month period. Thus, the
allegations in the instant appeal are less pervasive than those
in Black. Additionally, the two comments alleged to have
been made by Phillips were no more severe than the
statements made in Black. The fact that the statements were
directed at Burnett neither removes their innocuous nature
under Title VII nor cures their infrequency.
Burnett principally relies upon Abeita, in which a panel of
this court reversed a summary judgment granted to
TransAmerica on a hostile environment claim. In Abeita, the
plaintiff alleged discriminatory conduct in the form of several
offensive comments made over a period of seven years. Only
one of the statements was specifically directed at plaintiff
Abeita. The statement was made by the president of
TransAmerica who asked Abeita, “oh yellow dress and yellow
shoes, yellow underwear too?” Abeita, 159 F.3d at 248. The
other alleged incidents concerned the president’s sexual
interest in other women, including a model he hired for a
photo session in order to meet her, and various other
comments that “were not sexual in nature but arguably reflect
degrading gender stereotyping.” Id. The district court
granted summary judgment to TransAmerica, holding that the
several offensive comments over a period of seven years did
not present any evidence stronger than that addressed in
Black. See id. at 252.

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