Dorothy HENSMAN, Plaintiff-Appellant, v. CITY OF RIVERYIEW, Defendant-Appellee, 316 F. App'x 412

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff Dorothy Hensman appeals the grant of

summary judgment to the City of Riverview (“Riverview”) on her sexual harassment and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and Michigan’s Elliott-Larsen Civil Rights Act. The United States District Court for the Eastern District of Michigan found that Hens-man had failed to make a prima facie showing under either federal or state law and entered judgment as a matter of law for Riverview. For the reasons set forth below, we affirm the judgment of the district court. I.

This case arises out of interactions between Hensman and her supervisor, Fire Marshal/Deputy Chief Richard Batchelder. Hensman worked for Riverview as a dispatcher for the Riverview Fire Department from 1995 until she took medical “stress leave” on November 3, 2005. Hensman worked for Batchelder for approximately six weeks, from the date he began as fire chief on September 19, 2005 to early November when she left the Fire Department. Hensman claims that Bat-chelder’s actions during those six weeks constituted sexual harassment and created a sexually hostile work environment.

Hensman acknowledges that Batchelder never sexually propositioned her and never groped or fondled her. Instead, Hensman alleges that Batchelder sexually harassed her by engaging in the following specific and general conduct. Hensman describes four specific incidents as sexual harassment. First, on October 11, 2005, Hensman attempted to speak with Batchelder about his work. He allegedly claimed that he had not been listening because he was too distracted by how attractive she was. Second, he allegedly complimented her perfume multiple times, asked her what fragrance she was wearing, and continuously “sniffed” her.

Third, Hensman claims that Batchelder described her as a “voluptuous,” “well-endowed,” woman on two occasions, one in the context of comparing her to his wife and mother-in-law.

She testified that Bat-chelder said, “My wife didn’t move here with me and you remind me of her, you are very strong and aggressive and — and very voluptuous.” (Plaintiffs Dep. p. 59.) The fourth incident occurred on October 25, 2005 and was summarized by the district court as follows: On that date, Batchelder had an evening meeting with the union president and, when he left the fire station to go to the meeting, he mistakenly locked his office, truck and apartment keys in the office.

Since Plaintiff was the only other person who had an office key, he called her at home at approximately 11:30 p.m. and asked if she would come to the station and bring her office key so he could get in. Id. at 75; see also Batchelder Dep., pp. 81-82. Plaintiff told him she would not come to the station and that if he wanted the key he would have to come to her house and get it. [Plaintiffs Dep. pp. 75-76.] Batchelder did go to Plaintiffs house and Plaintiff, accompanied by her husband and daughter, answered the door wearing a bathrobe. Id. at 76.

According to Plaintiff, Batchelder apologized for bothering her and her family and as she handed him the key, Batchel-der commented, “You look cute in your jammies; I can see what you looked like as a little girl with your messy hair.” Id. The next day, Batchelder came to the office and brought her a bouquet of flowers [and] bagels for breakfast and apologized again for bothering her the night before and for saying she looked cute in her jammies. Id. Plaintiff testified that she was “humiliated” because the firefighters thought it was funny that Batchelder had woken her up in the middle of the night.

Id. at 77-79. “Everyone thought it was real funny.” Id. at 79. Hensman v. City of Riverview, No. 06-CV-14756-DT, 2008 WL 821940, at *3 (E.D.Mich. Mar. 26, 2008). Hensman’s complaint further alleges generally that Batchelder harassed her by closing the door when she was in his office and walking too closely behind her. Both of these practices made her feel uncomfortable. Additionally, Hensman claims that Batchelder harassed her by calling her the wrong name. Instead of using her nickname “Dodie,” he sometimes referred to her as “Dorothy,” (her full name), “Jodie,” “Mrs. Henson,” “Mrs.

Hendman,” and “Debbie.” Hensman’s only physical allegations against Batchelder are that he hugged her on three occasions. The district court summarized the hugs as follows: According to Plaintiff, the first time Bat-chelder hugged her was some time during the first two weeks of his employment. She testified that Batchelder “put his arms around [her] ... and said, ‘Thank you for helping me so much with the transition of starting a new job.’ ” [Plaintiffs Dep., pp. 16-17]. The second time was the beginning of the next week when Batchelder told her, “You’re beautiful.

I couldn’t do this job without you, you are the backbone of this building. I can see you are a very important part of the operation running smoothly and I’m very thankful to have you.” [Plaintiffs Dep. p. 19.] The third hug was a month later, the day before Plaintiff left her job. Plaintiff testified that on November 1, 2005, Batchelder called her into his office and said that he had sensed a tension between them. According to Plaintiff, Batchelder said, “I don’t want you to be mad at me and I can tell something is up.

I want you to tell me what’s the matter” because “I want us to have a close working relationship, [like] a marriage, if you will.” Id. at 82-83. Hensman, 2008 WL 821940, at *2. Hens-man testified that she then proceeded to tell him her frustrations, such as that he was “irritating,” a “perfect example of someone with ADD,” and that “it was very difficult for [her] to perform [her] job because he was constantly interrupting with compliments and personal statements about [her].” (Plaintiffs Dep. pp. 83-84.) Afterwards, Batchelder allegedly apologized and hugged her.

The following day, November 2, 2005, was Hensman’s last day of work. Hens-man was not feeling well and called the afternoon dispatcher to take over her shift. Batchelder then called her into his office and reprimanded her for the way she had spoken to him the previous day. He testified that he told her “she was unprofessional, out of line, and disrespectful,” and “crossed over boundaries.” (Batchelder Dep. pp. 93-94.) According to Plaintiff, she responded saying, “I apologize, I am absolutely not a doctor and I do not know if you have ADD.

However, I’m a mother and I know what it looks like.” [Plaintiffs Dep., p. 90.] She then got up to go back to the dispatch radio and Batchelder followed her. Id. at 91; Batchelder Dep., p. 94. Batchelder ordered Plaintiff back into his office. Id.; Plaintiffs Dep., pp. 91-92. Once inside the office, before Batchelder could say anything, Plaintiff announced, “I’ve already called relief. I’m going home sick,” and got up and left. Id. at 92; Batchelder Dep., p. 95. Hensman, 2008 WL 821940, at *4. At this point, Hensman felt nauseous and had high blood pressure.

Her replacement told her that Batchelder wanted her “out now,” so she left the station. (Plaintiffs Dep. p. 93.) Hensman testified that as she was exiting the building, Batchelder grabbed her arm so tightly that he left a mark and repeated her name over and over. Hens-man allegedly told him to let go of her and walked to her car. Batchelder followed her and, “in a very angry, nasty tone,” forbade her from returning to work until she contacted John Hajkus, the human resources director. Id. at 95.

The next day, Hensman contacted Haj-kus, requesting a sick leave and the appropriate forms to file a harassment complaint. Seven weeks later, Hensman returned the “Employee Harassment Complaint Form.” Hajkus investigated the nature of her complaint, interviewing Hensman, Batchelder, and other employees at the Riverview Fire Department. He concluded that there was no sexual harassment and sent Hensman a detailed report of his findings. Hensman filed an EEOC complaint and procured a right to sue letter.

She then filed a complaint against Batchelder and Riverview, alleging hostile work environment, assault, and battery. She subsequently removed the assault and battery allegations and added a sexual harassment claim under the Michigan Elliott-Larsen Civil Rights Act. Hensman also dismissed Batchelder as a defendant. In response to Riverview’s motion for

summary judgment, the United States District Court for the Eastern District of Michigan found that Hensman had failed to make out a sexually hostile work environment claim under federal or state law and granted

summary judgment to River-view. Of all of Hensman’s allegations, the court found that only Batchelder’s comments referring to Hensman as “voluptuous,” which Batchelder disputed occurring, were sexual. It further found that there were only four instances of physical contact, three hugs and the grabbing of Hens-man’s arm. It found that these incidents were not severe or pervasive and thus did not warrant relief under federal or state anti-discrimination law. Hensman timely appealed to this court on March 29, 2008. II. The standard of review for a district court’s grant of

summary judgment is de novo. See Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir.2008).

Summary judgment should be granted when the moving party can show that there is “no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). Once the moving party has met its burden, the nonmoving party must demonstrate an essential element of its claim to defeat the motion for

summary judgment. Celotex Corp. v. Catrett, All U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party cannot provide enough evidence that a reasonable jury could find for it, the motion for

summary judgment should be granted. See Tinsley v. Gen. Motors Corp., 227 F.3d 700, 703 (6th Cir.2000) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A.

Title VII prohibits employers from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). “A plaintiff may establish a violation of Title VII by proving that the discrimination based on sex created a hostile or abusive work environment.” Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir.1999) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

In order to establish a prima facie case of discrimination based on sex under Title VII, a plaintiff must show by a preponderance of the evidence that she meets the following five conditions: (1) that she was a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment; and (5) that there is a basis for employer liability. Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir.2008).

Conduct need not “seriously affect employees’ psychological well-being” to be actionable under Title VII, Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), but it must be “severe or pervasive.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

The “conduct in question must be judged by both an objective and a subjective standard: [t]he conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.1999) (alteration in original) (quoting Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir.1997)). Hensman has failed to establish a prima facie case that she suffered from a hostile work environment due to Batchel-der’s sexual harassment.

In sum, Hens-man alleged that Batchelder 1) hugged her three times; 2) twice made comments to her about being “voluptuous”; 3) said he was not listening to her because he was distracted by her beauty; 4) walked too closely behind her; 5) closed the door when he met with her in his office; 6) told her she looked cute in her pajamas; 7) brought her flowers and bagels to apologize for disturbing her the previous night; 8) complimented her perfume; 9) called her by the wrong name; and 10) grabbed her by the arm when she tried to leave.

The district court held that Hensman met the first element of the standard, but failed to meet the second element; though Hensman is female, a member of a protected class, the district court found that the instances she reported were overwhelmingly nonsexual. The district court found that only the comments that Hens-man was “voluptuous” qualified as sexual. Looking at the facts in the light most favorable to Hensman, as we must do in reviewing a motion for

summary judgment, all of the allegations except for calling Hensman by the wrong name could be considered sexual. The district court thus erred in its characterization of much of Batchelder’s conduct as nonsexual. Even considering all of the allegations as sexual, however, Hensman has failed to show that the harassment she suffered created a hostile work environment.

To determine whether sexual harassment created a hostile work environment, “the court must consider all of the circumstances, including 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 performance.” Thornton, 530 F.3d at 455 (internal quotation marks omitted). The most disturbing instances Hensman reported, the comments about Hensman’s voluptuousness and the unwanted physical contact, were not frequent.

During the six weeks they worked together, Batchelder allegedly said Hens-man was “voluptuous” twice, hugged her three times, and grabbed her arm once. While inappropriate, these instances were not frequent. See Grace v. USCAR & Bartech Technical Serv., LLC, 521 F.3d 655, 679 (6th Cir.2008) (“[T]he occasional comments, which may have been ‘offensive utterances,’ do not rise to the level required by the Supreme Court’s definition of a hostile work environment.... ”); Clark v.

United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir.2005) (finding that the plaintiff had not made a prima facie showing of hostile work environment when she “depict[ed] isolated instances rather than an ongoing situation”).

Although the other actions Hensman reported allegedly occurred more frequently, such as Batchel-der’s complimenting her looks or perfume and closing the door during meetings, this conduct simply does not “permeate[ ]” the workplace with “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks and citations omitted).

Similarly, the unwanted physical contact from Batchelder was inappropriate, but it does not rise to the level of “physically threatening or humiliating.” Batchelder never propositioned Hensman or grabbed her sexually. Compare Hawkins v.

An-heuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir.2008) (finding a prima facie showing of hostile work environment when male supervisor made continual, crass requests for oral sex, regularly rubbed against plaintiff with his private parts, and touched or grabbed her “every time” they worked together), and Williams, 187 F.3d at 563-64 (finding a prima facie showing of hostile work environment when plaintiff was subjected to continual, crude sexual propositions, derogatory remarks about women, and physical pranks, such as being hit by a thrown box and being locked in her work area), with Clark, 400 F.3d at 351 (finding no hostile work environment when male supervisor told vulgar jokes, twice pressed his vibrating pager against plaintiffs thigh, and once pulled at her overalls when she said she was wearing a thong), and Stacy v.

Shoney’s, Inc., 142 F.3d 436 (6th Cir. 1998) (table) (finding no hostile work environment when male supervisor made continual sexual comments and touched plaintiffs breast once while removing a pen from her shirt pocket). Batchelder’s conduct was offensive but “simply not substantial enough to satisfy the prima facie showing.” See Clark, 400 F.3d at 352. B. Hensman also claims that Batchel-der’s actions violated the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”). The ELCRA prohibits discrimination on the basis of sex, which “includes sexual harassment.” Mich. Comp. Laws § 37.2103(i).

In order to establish a claim under the ELCRA, plaintiffs must establish the same five elements required for a Title VII claim. The evidentiary standards for Title VII and ELCRA claims are the same, see In re Rodriguez, 487 F.3d 1001, 1007 (6th Cir.2007), except that the ELCRA requires a plaintiff to show that the harassing behavior is of a “sexual nature,” not merely based on gender. Mich. Comp. Laws § 37.2103(f); see Corley v. Detroit Bd. of Educ., 470 Mich. 274, 681 N.W.2d 342, 345 (2004) (per curiam).

Since Hens-man has failed to establish the five elements necessary for a Title VII claim, she similarly has failed to make out a prima facie case of sexual harassment under the ELCRA. Because Hensman cannot show that Batehelder’s actions created a hostile work environment, the district court did not err in granting

summary judgment to Riverview. III. For the foregoing reasons, we affirm the district court’s grant of

summary judgment to Riverview. . Hensman argues that the district court applied the wrong standard to her claim by requiring her to show that the conduct was "severe and pervasive,” instead of "severe or pervasive.” The district court did misstate the standard as "severe and pervasive” three times in its opinion. Hensman, 2008 WL 821940, at *10, 11, 13. The district court also stated the standard correctly as "severe or pervasive” in many instances in its opinion. Id. at *8, 9, 10, 11, 12.

The district court's articulation of different standards in its opinion is indeed confusing; any error is nevertheless harmless because Hensman failed to present evidence of conduct that is either severe or pervasive for purposes of creating a hostile work environment. . The pertinent statutory text states: Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (

t) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing. (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing. (iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

Mich. Comp. Laws § 37.2103(i). . A plaintiff must show: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of the protected status; (3) the employee was subjected to unwelcome conduct or communication on the basis of the protected status; (4) the unwelcome conduct or communication was intended to, or in fact did, interfere substantially with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. Downey v.

Charlevoix County Bd. of Road Comm'rs, 227 Mich.App. 621, 576 N.W.2d 712, 716 (1998); see also Meyer v. Macomb Twp. of Macomb County, Mich., No. 06-14953, 2008 WL 2064551, at *7 (E.D.Mich. May 14, 2008).