*1 duty only if applies none. The defend plaintiffs actual or lawsuit includes un-
potential claims that would be covered policy. It
der the insurance does re-
quire play legal insurers to whack-a-mole
by defending every plain- until the lawsuit affirmatively every possible
tiff disclaims claim,
unpled unsupport- wholly even those plaintiffs Try allegations.
ed as it
might, simply Bertram cannot rename
Eden claims as Foods’ trademark trade claims
dress and make them so. Eden trademark claims
Foods’ were based
infringement, Policy and because ex- coverage for
cludes those claims we hold duty no Citizens had defend Ber-
tram lawsuit. Eden Foods’
CONCLUSION reasons, foregoing
For the we AFFIRM judgment
summary to Citizens. GRAVES,
Karen Elaine
Plaintiff-Appellant, GASTROENTEROLOGY,
DAYTON
INC., Schum, and David
Defendants-Appellees.
No. 15-4049 Appeals,
United Court of States
Sixth Circuit. September
Filed *2 summary granted court
ment. The district defendants, con- in favor of the judgment failed to demonstrate cluding that Graves dispute of fact as to whether on experienced harassment she based sufficiently whether sex and pervasive to a hostile severe or create agree Because we work environment. subjectéd to severe Graves on pervasive harassment based affirm. AND
FACTUAL PROCEDURAL
BACKGROUND Graves, May Beginning regis- nurse, as the lead certified worked tered Dayton anesthetist at Gastroenterol- nurse ogy. position in that included Her duties mаnaging the anesthesia depart- staff in Green, F. F. Green Harrison Harrison ment, for scheduling work the other nurse Cincinnati, OH, Co., Plaintiff-Appellant for anesthetists, monitoring time and attend- Johnson, Freund, Freeman Christopher ance, procedures, developing policy and Arnold, OH, for Dayton, & Defen- Freeze staff, liaising educating and between anes- dants-Appellees physicians. Gravеs made thesia staff and DAUGHTREY, MOORE, BEFORE: hiring regarding the and recommendations GRIFFIN, Judges. Circuit supervisor, Craig firing of staff to her officer, As Penno Penno. chief executive DAUGHTREY, MARTHA CRAIG authority approve all em- had ultimate Judge. Circuit ployment actions. appeal In this we are asked deter- as couple After a months lead nurse plaintiff Kim mine anesthetist, requested leave experienced by аt work defendant to focus on position because she wanted gender on was based David Schum patient care avoid the extra work and objectively pervasive severe was so by management required responsibility to constitute work envi- role. remained lead nurse anesthe- During employment ronment. Graves’s February tem- tist until when Schum Dayton Gastroenterology, she received two position. porarily assumed messages from text Schum included together had worked reported comments about She Graves and Schum sex. May upon and Graves looked supervisor, repri- to her since making as a Graves and Schum began Schum then friend. manded Schum. exchanged messages, periodically but life difficult at work. Graves even- anything that tually from suit did not discuss resigned job and filed col- any have against would not talked Schum and Gastroenterolo- January In while league' discrimination on sex about. gy, alleging him vacation, to tell from a Graves texted Schum stemming hostile work environ- stated, when she return to work employer anesthetist different I being “I like vacation. done June 2013. have nothing responded, all “I week.” Schum brought suit Schum and happy you, you just [sic] have fun and Dayton Gastroenterology under Title VII sex.” wild Graves was offended Rights the Civil 42 U.S.C. Act. *3 message it inappropriate and felt was and 2000e-2000e-17, §§ and Ohio Revised unprofessional, but she not convey did § discriminating Code 4112 for against to A later, Schum. week Schum texted gender by Graves on her creating based a again, blue, apparently out the complaint work environment. Her sаying, your ‘You lay and husband out a claim include a of retaliation. The wonderful dinner an have wild sex on [sic] granted district court summary judgment the table!!!!! I do think about sex .all the defendants, to the and Graves has now just time. I getting [sic] it.” appealed. day, The next reported'both in- ANALYSIS appropriate Penno, to grant We review the district court’s spoke with Schum. texted Graves summary judgment legal аnd resolution of apology an sought and to discuss the mat- questions accept de novo and her, ter with but Graves refused to speak findings court’s factual unless are to him anything not work-related. clearly erroneous. TransAm. Assurance very angry Schum became began Corp. v. Capital Corp., Settlement 489 F.3d treating rudely. During the next (6th 2007). 259 Summary Cir. judg months, two he allegedly addressed her when, is appropriate ment construing the curtly, to respond questions refused her light evidence in most favorable to-the assignments, about work not relieve would nonmoving party, genuine no there is dis from despite her duties regularly re- pute material fact moving party and the lieving employees, gave her the most is judgment a matter entitled of law. assignments, difficult denied her lunch 56(a); R. Dept. Fed Civ. P. U.S. Warf v. occasions, breaks on several a chart threw (6th Affairs, Veterans 713 F.3d 877 her, provide at failed to with updated 2013). Cir. schedules, requests and denied her n prohibits employer Title VII an from for days off. Schum told on numer- “discriminating] .any individual brought ous occasions that she his ill will terms, respect compensation, with to his upon by reporting herself the text mes- conditions, privileges of employment, оr sages said, to Penno and that “if [she] was race, color, because of such individual’s like,
wondering what
was
hell
[she]
religion,
origin.”
or national
42 U.S.C.
Dayton
soon see it
here
Gastro.”
2000e-2(a)(l).
§
“A plaintiff may establish
alleged
Graves later
Schum’s ac-
a violation of
by proving
Title VII
that the
tions
it
“unbearable” for
to con-
discrimination based on sex
a hos-
created
tinue'working
Dayton
Gаstroenterology
tile
abusive work
environment.”
nausea,
caused her
suffer
anxiety,
Corp.,
Williams v. Gen. Motors
187 F.3d
(6th
headaches
the remainder of the
prevail
Cir.
on such
To
employed
time she
claim,
(1)
there. On March
plaintiff
must show that
30, 2013,
resignation
class; (2)
Graves submitted her
of protected
was member
Gastroenterology,
May
harassment;
subjected
effective
to unwelcome
(3)
job
30.
complained
She started a new
as a
nurse
the harassment
of the
totality
(4)
must consider
sex;
prong,
cre
on her
(5)
environment;
circumstances,
frequency of
including “the
hostile work
ated
v. Rock-Tenn
conduct;
is hable. See Smith
severity;
its
employer
(6th
rvs.,
F.3d
Se
(was)
threatening
physically
it
Energy
v. Consumers
2016);
Waldo
utterance;
Cir.
humiliating, or a mere offensive
2013).1
Co.,
F.3d
interfere(d)
unreasonably
аnd whether
Title
interpreting
case law
federal
Because
(in-
performance.” employee’s
with
to sexual
generally applicable
is
VII
citations omit-
quotation marks and
ternal
law,
claims
Ohio state
harassment
under
ted;
in original).
alteration
applies to both
legal framework
same
and state law claims.
federal
court concluded
The district
Anheuser-Busch, Inc., Hawkins
dis
failed to establish
*4
the harassment
pute as
has
dispute
parties
whether Graves
The
the two text
gender,
because
based
her
genuine question of mate-
demonstrated
her, although osten
sent
fourth
regarding the third and
rial fact
sex,
gender-neutral
“were
sibly about
her hostile-work-environment
of
elements
animus.” De
not
an anti-female
evince
To
that
the harassment
claim.
establish
“unprofes
comments as
scribing Schum’s
gender,
on her
experienced was based
sional,”
that
court concluded
show that she would
have
must
gender-specific epi
not contain
“did
object of
for her
harassment but
been the
they explicitly sexual or
nor were
thets
Bowman, 220
To
gender.
F.3d at 463.
es-
of
The court
degrading
women.”
patently
work environment was
that
the
tablish
аlleged
that
on to find
Schum’s
went
hostile,
that she
must show both
in
form the two text
the
of
harassment
perceived it
be hostile and
subjectively
sufficiently severe or
messages was not
person would have found
that a reasonable
to create a hostile work environ
pervasive
Smith,
hostile.
In
whether Graves established
to which
employment
conditions of
objective
as to the
or
genuine dispute
object of
Bowman v. Shawnee
harassment.”
cases from this court have articulated
1. Some
2000);
Univ.,
“subjected to
element as
unwel-
220
463
the second
State
F.3d
Smith,
harassment,” sеe,
e.g.,
Serv.,
come sexual
Clay
v. United Parcel
see also
the
2007) ("Conduct
but we find that
articulation
F.3d
that
Waldo,
in
726 F.3d at
of the standard
may
illegally
explicitly
be
is not
race-based
Warf,
accurately
F.3d at
more
properly considered in a hos-
race-based and
that
conduct
"[n]on-sexual
reflects the rule
analysis when it can be
tile-work-environment
may
illegally
proрerly con-
be
sex^based and
race,
employee’s
that but
the
shown
analysis
environment
sidered in a hostile
object
of harass-
have been
would not
em-
it can be shown that but for the
where
ment.”).
ployee's
he would not have been
(inferring
gender-dis-
of the other sex are not ex
members
F.3d at
v.
posed.”
facially-neutral
Oncale
Sundowner
basis for
crimination
inci-
Offshore
Sews., Inc.,
75, 80,
S.Ct. 998,
523 U.S.
from the use of gender-specific
dents
de-
(1998) (citation omitted).
Neaton Auto Prods. 99-100) (Graves ship. Dep. at See R. 18 2004) no (finding 459-60 261-62). they occa- Although ID # (Page plain- where the environment work outside sionally about their lives talked continuously commented tiffs co-worker work, these conversa- restricted physical appearances women’s history tions to her and where meetings sleeping about spoke at the shift lived, information as limited well women). different with about her Id. husband. words, (Page ID # In. formed the might have Schum’s behavior any “Nothing I talk with wouldn’t claim, see of a successful retaliation basis professional and Schum about.” ("Title Hawkins, per- VII 517 F.3d at either, not socialize after hours save did for co- employer mits claims for one went lunch occasion when retaliation.”); Alvey, Akers v. worker 100, 118 colleague. with аnother Id. at (“[S]evere 2003) (Page They ID # were S.Ct. 998 following pervasive supervisor harassment intimate details close friends who shared complaint can consti- a sexual-harassment lives; they friendly about each other’s were purposes of a Title tute retaliation al- colleagues whose conversations were action.”) (internal quotation marks VII always most Gastrоenterolo- omitted), plead such a but gy. messages cannot be di- Schum’s text to stretch claim in case. We decline from this context. vorced analysis to the hostile-work-environment claim, essentially fit is what retaliation In on her hostile-work- order to prevail addressing legal claim, because a framework must environment establish *6 already See id. such claims exists. on that wаs “based Schum’s harassment Servs., Inc.,
sex.” Smith v. Roek-Tenn See CONCLUSION 2016). 298, (6th There 813 Cir. F.3d 307 ways in which can are number light in Viewing the most evidence this, including showing that the behav- do conclude, plaintiff, to the favorable overtly ior v. sexual. See Williams court, not she has district that 553, Corp., F.3d 565 Gen. 187 Motors dispute genuine of fact as to established 1999). “[Hjarassing behavior that is subjected to severe whether not is at sexually еxplicit but directed gen- pervasive based on her harassment by discriminatory motivated women and AFFIRM the der. therefore district We satisfies the [also] animus women granting summary judgment court’s order requirement.” on ‘based sex’ Id. Graves to the defendants. need not that was motivated show Schum MOORE, animus, however, Circuit because anti-female KAREN NELSON Judge, dissenting. overtly messages his text were sexual. to disputes messages only text refer
There are material Schum’s sex,” they imagine fact to but also both as whether harassment “wild desire to having express Schum’s and as to whether it it and was based sex (Graves 104, at Ex. Dep. Ac- have it. R. 18 Def. environment. created a work K) 266, 364). context grant (Page I ID # Given the cordingly, vacate the sum- would
491 relationship, jury of their subsequent reasonable could find that Schum’s treat- trying to could find that Schum en- ment of her was sexual rooted desire gage in a conversation rejection. that this doing Schum was because he genuine dispute There also is a of mate- with pursue relationship
wanted
rial fact as to whether
Graves,
that his
behavior was there-
created
hostile work environment. The
Williams,
fore
on sex.”
“based
See
187
objective
cоmponent
inquiry
re-
Requiring
at
560.
defendants to re-
quires us to
totality
look at the
of the
outright
veal
motives
punish
their
would
Williams,
circumstances.
testified ID # (Page true, allegations
Accepting these every almost affected
Schum’s behavior Gastroen- life
facet Graves’s evidence, jury could
terology. On harassment created that Schum’s
find
hostile work environment. grant court’s
I would reverse to the summary judgment defendants Therefore, I procеed. case to
and allow the
respectfully dissent. STAMM, Representative
Mary Personal Stamm, Carl A. Estate of Plaintiff-Appellee,
IV, MILLER, Defendant-
Frederick
Appellant, Heenan, Davis, Jr., Cynthia Hugh M. Associates, De- Litigation Constitutional Fowlerville, Village Defendant. troit, MI, Plaintiff-Appellee No. 15-1601 Johnson, Rosati, Marcelyn Stepanski, A. Hills, MI, Joppich, Farmington & Schultz Appeals, United States Court Defendant-Appellant Sixth Circuit. 16, 2016 September
FILED SILER, GIBBONS, BEFORE:
COOK, Judges. Circuit *8 GIBBONS, Circuit JULIA SMITH Judge. Miller, an officer with
Frederick challenges Department, Police Fowlerville of his motion court’s denial