[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 12, 2006
No. 05-15722 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-02652-CV-CC-1
CELLINI D. PARKER,
Plaintiff-Appellant,
versus
ATLANTA NEWSPAPERS NAME HOLDING CORPORATION,
COX ENTERPRISES INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 12, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Cellini Parker appeals the district court’s grant of summary judgment to
defendants Atlanta Newspapers Name Holding Corporation and Cox Enterprises,
Inc. on her Title VII sexual harassment claim. The district court held that Parker
did not create a genuine issue of material fact as to whether the harassment she
suffered was so severe or pervasive that it created a discriminatorily abusive work
environment. We reverse the district court’s grant of summary judgment and
remand for further proceedings.
Cellini Parker is a production worker in the mail room at the defendants’
Gwinnett County Printing Plant in Norcross, Georgia. Parker was assigned to
work at one of the insert machines which gathers and collates supplements for the
Atlanta Journal-Constitution’s newspapers. Each machine includes multiple
“hoppers” at which production workers feed inserts into the machine. Each insert
machine is controlled by two operators who assign production workers, like
Parker, to work at particular hoppers. Eric Cannon was one of the operators on the
insert machine Parker was assigned to. Therefore, as an operator Cannon had the
authority to tell Parker which hopper she would be responsible for, but he did not
have the authority to discipline Parker or to fire her.
When Parker was assigned to Cannon’s insert machine he told her that
“pretty girls don’t last on a job like this for long.” From that point forward,
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Cannon began making sexually vulgar and demeaning comments to Parker on a
daily basis. Cannon’s comments included: “I want to fuck you for your birthday.”
“When are you going to let me taste you?” “Parker, I know it’s good and tight
cause you’ve never had kids.” “You always have your legs open as if you want
someone’s head between them.” “You have nice round breasts.” “You have some
juicy thighs.” Parker also alleges that Cannon physically harassed her by rubbing
her hands, shoulders and elbows and standing “disturbingly close to her.”
Additionally, Parker stated that Cannon treated her more harshly than the
other employees assigned to his insert machine. Cannon would routinely assign
her to the most difficult hopper on the machine and also require Parker to remain at
difficult hopper stations rather than going through the normal rotation which
included shifts at the easier positions. It was a part of Cannon’s job requirements
that she be able to run any hopper on the machine without assistance; however,
according to Parker, it was normal practice for employees to assist one another on
the most difficult hoppers. Parker asserts that Cannon would not permit other
employees to assist her at these positions.
As a result of these incidents Parker brought suit in federal court alleging
violations of Title VII and various state law tort claims. The district court granted
summary judgment to the defendants on all Parker’s claims. Parker appeals the
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district court’s grant of summary judgment to the defendants on her Title VII claim
only.
We review the district court’s grant of summary judgment de novo. Key
West Harbour Development Corp. v. City of Key West, 987 F.2d 723, 726 (11th
Cir. 1996). In so doing, we view the evidence and all factual inferences in the light
most favorable to Parker as the nonmoving party to determine whether any genuine
issue of material fact exists and whether the defendants are entitled to judgment as
a matter of law. Id.
In order to establish a hostile work environment sexual harassment claim
under Title VII an employee must show: “(1) that he or she belongs to a protected
group; (2) that the employee has been subject to unwelcome sexual harassment,
such as sexual advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex of the employee;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working
environment; and (5) a basis for holding the employer liable.” Mendoza v. Borden,
Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). The only elements that the defendants
contest are, the fourth and fifth ones, whether the harassment was so severe and
pervasive as to alter the terms and conditions of Parker’s employment and whether
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a basis for holding the employer liable exists.1 The district court held that the
harassment was not sufficiently severe and pervasive and, therefore, did not
address the final element.
The fourth element, which the district court did address, requires that
harassing conduct be severe or pervasive enough to alter the terms and conditions
of employment. This element has both a subjective and objective component. Id.
at 1246. The employee must “subjectively perceive” the harassing conduct as
severe and pervasive and this perception must be objectively reasonable. Id. This
Court has identified four factors to aid courts in evaluating the objective
reasonableness of an employee’s perception that conduct is severe and pervasive
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The defendants contend that the facts in its “Statement of Undisputed
Material Facts” attached to its motion for summary judgment should be deemed
admitted by the plaintiffs. According to the Northern District of Georgia’s Local
Rule 56.1, a movant for summary judgment must attach a separate statement of
material facts as to which the movant contends there is no genuine issue of material
fact. The Rule also requires the respondent to include a response to the movant’s
statement of undisputed facts. Each of the movant’s facts will be deemed admitted
unless the respondent “directly refutes the movant’s fact with concise responses
supported by specific citations to evidence.” N.D. Ga. Local Rule 56.1. The
defendants argue that because Parker did not file a separate statement of facts in
compliance with this court rule, we must accept each of the defendant’s facts in the
“Statement of Undisputed Material Facts” as true. Parker did reply to the
Statement of Undisputed Material Facts attached to the defendants’ first motion for
summary judgment and incorporated that reply by reference in her response to the
defendants’ second motion for summary judgment. The district court did not
discuss Rule 56.1 in its decision, and we likewise will not apply it in the first
instance here on appeal.
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enough to alter the terms and conditions of employment: “(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employee’s job performance.” Id.
Parker has established a genuine issue of material fact about whether she
subjectively perceived the harassment as severe and pervasive enough to create a
hostile work environment. Parker stated that Cannon’s “comments and actions
made me fear coming to work. I was sick and in shock by Cannon’s conduct and
the lack of management concerns.” Because that statement creates a genuine issue
of material fact about her subjective perception, the next question we must answer
is whether her belief was objectively reasonable. See Mendoza, 195 F.3d at 1246.
The district court held that Parker had not established a genuine issue of fact
as to whether the harassment was objectively severe and pervasive because (1)
Parker had not shown that Cannon’s conduct was physically threatening or
humiliating, (2) there was no actual interference with Parker’s job performance,
and (3) Cannon was not Parker’s supervisor and did not have the authority to
discipline or terminate her.
Parker claims that she was subject to daily harassment. She alleges that
Cannon made sexually vulgar and demeaning statements to her “every single time
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she was at work.” Parker also alleges that Cannon touched her hands, elbows and
shoulders a number of times and would stand “disturbingly close to her, nearly
pressing his body against hers.” The defendants contend that these incidents
occurred when Cannon was training Parker. Parker also alleges that when she
refused Cannon’s advances, he made her work harder than others by assigning her
to the most difficult hopper on the insert machine and taking her out of the normal
rotation so that she had to remain at that position for long periods of time without
anyone to assist her.
Parker has established the objective reasonableness of her perception that
she was subjected to severe and pervasive harassment that created a
discriminatorily abusive work environment. Under the four factors which we
consider to determine this, there is no doubt that the first factor weighs in Parker’s
favor. The conduct occurred frequently. She testified, and the defendants do not
appear to dispute, that Cannon’s unwelcome comments were made “every single
time she was at work” for a period of several months.
Under the second factor, the offensive and demeaning nature of many of
Cannon’s comments indicates that the verbal harassment which Parker had to
endure was severe. The comments were undeniably sexually explicit and
repeatedly referred to Parker’s anatomy and Cannon’s desire to have sex with her.
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It is also significant that Parker was a production worker on the insert machine that
Cannon operated. Parker had to work in close proximity to Cannon at whatever
hopper he determined that she should run. Parker had nowhere to go where she
could escape Cannon’s unwelcome attention.
The district court’s problem with Parker’s claim was the other two factors.
It determined that Cannon’s conduct was not physically threatening or humiliating
and did not actually interfere with Parker’s job performance. Parker argues that the
incidents in which Cannon touched her on the hands, arms and shoulders and stood
too close to her were physically humiliating. She also contends that Cannon
interfered with her job performance by treating her more harshly than other
employees, assigning her to the most difficult position for hours at a time and not
permitting anyone else to assist her.
Parker apparently concedes that the touching and standing too close
incidents occurred while Cannon was training her. However, in conjunction with
Cannon’s comments, we cannot rule out the possibility that these physical
incidents were objectively threatening or humiliating. Even if this factor does not
ultimately support Parker’s claim, we, unlike the district court, do not believe that
its absence necessarily indicates that the harassment was not severe and pervasive.
We also disagree with the district court’s conclusion that Cannon did not
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interfere with Parker’s job performance. Although Cannon was not Parker’s
supervisor, he was the operator of the insert machine that Parker was assigned to
and had the authority to determine the hopper where Parker would work. Parker
has alleged that Cannon would take her out of the normal rotation and force her to
work extra hours at the most difficult position. On at least one occasion he
instructed another employee not to assist Parker at one of the hoppers. Parker’s job
duties did require her to be able to operate a hopper without assistance, but that
does not mean that Cannon did not interfere with Parker’s job performance. Parker
alleges that she was treated unfairly because Cannon treated her more harshly than
other employees on his machine. The fact that the assignments Cannon gave
Parker were technically within the duties of her position does not alone decide the
question. If Cannon singled Parker out for harsher treatment than other employees
on his machine, that may have affected her job performance. That is an issue that a
jury needs to decide.
This case is similar to Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269
(11th Cir. 2002), where we held that the plaintiff had presented enough evidence
from which a reasonable jury could find that the harassment he faced was severe
and pervasive. Miller involved a race discrimination hostile environment claim;
however, the analysis is the same as that for a hostile environment claim based on
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sexual harassment. See id. at 1275–76 (citing sexual harassment cases in
discussing the elements of the plaintiff’s hostile environment racial harassment
claim). Miller’s co-worker directed ethnic slurs at him three to four times a day.
Id. at 1276. As in this case, Miller was subjected to purely verbal, rather than
physical, harassment, although we did find that the harassment was “physically
threatening” because of the intimidating manner in which many of the slurs were
spoken. Id. Similarly, although Parker may not have been subject to physical
harassment, some of Cannon’s comments, such as telling her “I want to fuck you”
reasonably could be perceived as physically threatening.
We think that Parker has presented evidence from which a jury might find
that she was subject to a “continuous barrage of sexual harassment” such as we
found actionable in Johnson v. Booker T. Washington Broadcasting Service, Inc.,
234 F.3d 501, 509 (11th Cir. 2000). Like the Court in Johnson, we distinguish
Parker’s case from other cases where we have determined that the harassment was
not severe and pervasive because a plaintiff was subject to “fewer instances of less
objectionable conduct over longer periods of time.” See id. (citing Mendoza v.
Borden, Inc., 195 F.3d 1238, 1242–43 (11th Cir. 1999), and Gupta v. Fl. Bd. of
Regents, 212 F.3d 571, 585 (11th Cir. 2000)). Parker stated that she was subject to
Cannon’s unwelcome comments on a daily basis, every time she was at work, for a
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period of several months. Cannon’s statements were offensive and demeaning and
were of an overtly sexual nature. Cf. Gupta, 212 F.3d at 583 (noting that much of
alleged harassment was conduct “that no reasonable person would consider to be of
a gender-related or sexual nature”). There is no possibility that Cannon’s
statements were misinterpreted by Parker.
Parker has presented enough evidence to create a genuine issue of material
fact as to whether the harassment she faced was sufficiently severe and pervasive
to create a hostile working environment. The district court erred in granting
summary judgment to the defendants on that element of Parker’s claim. The
district court’s order granted summary judgment solely on the fourth element and
did not address the fifth element of Parker’s claim, which is whether a basis for
holding the defendants liable exists. We think it is appropriate to remand this case
to the district court for full consideration of that issue. We express no opinion on
whether a basis for holding the defendants liable exists.
Therefore, the district court’s order granting summary judgment to the
defendants is REVERSED and the case is REMANDED to that court for further
proceedings.
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