Burnett v. Tyco Corp.

• Decision Date: 27 October 1999
• Docket Number: No. 98-6477,98-6477
• Citation: 203 F.3d 980
• Parties: (6th Cir. 2000) Jenny Burnett, Plaintiff-Appellant, v. Tyco Corporation and Grinnell Corporation, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 980

203 F.3d 980 (6th Cir. 2000)

Jenny Burnett, Plaintiff-Appellant, v. Tyco Corporation and Grinnell Corporation, Defendants-Appellees.

No. 98-6477

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 27, 1999

Decided and Filed: February 11, 2000

Rehearing and Rehearing En Banc Denied March 24, 2000^*

Appeal from the United States District Court for the Western District of Tennessee at Jackson; No. 96-01132--James D. Todd, District Judge.

Justin S. Gilbert, THE GILBERT FIRM, Jackson, Tennessee, for Appellant.

Michael G. McLaren, Memphis, Tennessee, Cheryl Rumage Estes, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for Appellees.

Before: MARTIN, Chief Judge; SUHRHEINRICH and SILER, Circuit Judges.

SILER, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. MARTIN, C. J. (pp. 985-86), 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. 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.

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 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 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...