In Boone v. Kroger Limited Partnership I, No. 1:25-CV-108-SA-DAS, 2026 WL 3155063 (N.D. Miss. Oct. 21, 2026), the court, inter alia, denied defendant’s motion for summary judgment seeking dismissal of plaintiff’s hostile work environment sexual harassment claim under Title VII of the Civil Rights Act of 1964.
As to the issue of whether the alleged conduct was “objectively offensive,” the court explained:
The totality of the employment circumstances determines whether an environment is objectively offensive. Although no single factor is determinative, pertinent considerations are:
(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.
In making this determination, the Court will address the relevant aforementioned factors which the Supreme Court and the Fifth Circuit have implemented. Id. To recap, Boone alleges the following: (1) that since at least the beginning of 2023, Rich commented on her breasts and/or buttocks at least once a week, (2) that later in 2023 Rich grabbed her by her arm and said, “you have no idea what I could do to you,” and (3) that in 2024 after offering her $50 to help him, Rich pressured her against a shelf while touching her waist and breast and stated, “I’ll pay you more than that.”
The Court first looks to the frequency of the harassment. As to the comments about Boone’s body, she testified in her deposition that at the end of 2022 or beginning of 2023, Rich began verbally harassing her by commenting on her breasts and/or buttocks. She testified that Rich made these comments at least once a week. Taking these facts as true, the Court notes that, had these comments been made from the beginning of 2023 to mid-2023 when the harassment became physical, this could potentially total twenty-four comments over a roughly six-month period. Boone does not allege that the comments continued after the two physical incidents included in her Complaint [1].7 Nevertheless, taking her testimony as true and even assuming the comments went on for the shortest alleged period, their frequency still weighs in Boone’s favor.
In contrast, the two alleged physical incidents occurred roughly a year apart, making them much more infrequent compared to the alleged weekly verbal harassment. However, the frequency of the comments paired with the following two allegations of physical sexual harassment in 2023 and 2024 come to a total of at least twenty-six instances in a roughly eighteen-month period. Taking all of this into account and viewing it in the light most favorable to Boone, a reasonable jury could find that the harassment, as a whole, was frequent.
A reasonable jury could also find that the harassment was severe because the two physical incidents were “physically threatening or humiliating” rather than a “mere[ ]…offensive utterance” and affected Boone’s job performance. West, 960 F.3d at 741. As previously discussed, Boone testified that Rich made weekly comments about her body, particularly her breasts and buttocks. These comments, alone, are not sufficiently severe to be actionable under Title VII because the Fifth Circuit has held that being subjected to “one subjectively offensive utterance…every few days” is not actionable under Title VII when the utterances “were not severe, physically threatening, or humiliating.” Arredondo v. Schlumberger Ltd., 583 F. Supp. 3d 783, 799 (W.D. Tex. 2022); see also Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 330 (5th Cir. 2009) (citing Shepherd v. Comptroller of Pub. Accts. of State of Tex., 168 F.3d 871, 874 (5th Cir. 1999)).8 However, Rich’s verbal harassment eventually escalated to two incidents of physical harassment that a jury could reasonably find to be sufficiently severe.
On one occasion, Rich grabbed Boone by her wrist and stated, “you have no idea what I could do to you” which is physically threatening behavior whether interpreted as sexual in nature or not. The Fifth Circuit has approvingly cited a Seventh Circuit decision, Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001), for the proposition that the touching of an intimate body part is “one of the most severe” kinds of sexual harassment. Harvill, 433 F.3d at 435–36; see also Guadalajara v. Honeywell Int’l, Inc., 224 F. Supp. 3d 488, 501 (W.D. Tex. 2016). As to the second, and arguably more severe incident, taking Boone’s testimony as true, Rich pressured Boone up against the shelf by her waist and touched her breast, an intimate body part, while she repeatedly said “no.”
As to whether this conduct is sufficiently severe to preclude summary judgment, the Fifth Circuit and district courts have reached different conclusions on the matter. For instance, several courts have held that conduct of relatively similar nature is sufficient to survive summary judgment. See La Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002) (holding that a single touching of a sexual nature combined with a single remark which indicated sexual desire towards the plaintiff was sufficient proof of severe harassment to survive summary judgment); McKinnis, 189 F. App’x 307 (5th Cir. 2006) (holding supervisor’s touch of employee’s breast and thigh was sufficiently severe to survive summary judgment); Wallace v. Performance Contractors, Inc., 57 F.4th 209 (5th Cir. 2023) (holding that supervisor sending photo of his genitalia, asking for photo of employee’s breasts, asking to touch her breasts, and weekly comments about employee’s “t*** and a**” was sufficiently severe to survive summary judgment); Burnett v. Ashley Furniture Indus., 836 F. Supp. 3d 699 (N.D. Miss. 2026) (holding supervisor’s remark that employee’s body was “flirting” with him and his touching of employee’s buttocks were sufficient to constitute severe harassment to survive summary judgment). On the other hand, some cases have reached the opposite conclusion. See Gibson v. Potter, 264 F. App’x 397 (5th Cir. 2008) (holding that supervisor’s single grab of buttocks and suggestive comment were not severe or pervasive to survive summary judgment); Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 827-29 (5th Cir. 2009) (plaintiff’s purported supervisor’s “chesting up” to plaintiff’s breasts, forcing plaintiff through a door ahead of her, placing his hand on her stomach and running his hand around her waist, and rubbing his pelvic region across her hips and buttocks found not severe or pervasive).
As this survey of cases indicates, the outcome is particularly fact dependent. With this in mind and using these cases as guidance, the Court finds that the alleged harassment here is somewhere on the continuum between the “one off” instances in LaDay, McKinnis, Gibson, Burnett and Paul and the more severe, like Wallace. The Court finds it critical that while the alleged harassment commenced as only verbal comments, it escalated and ultimately culminated in a particularly severe physical incident with Rich. While Rich’s comments when viewed in isolation were not sufficiently severe, the progression of harassment here is significant.
Lastly, Rich’s conduct also arguably unreasonably interfered with Boone’s work performance as she alleges she suffered panic attacks leading to blackouts. While she suffered from anxiety prior to the incidents with Rich, it was, taking her testimony as true, exacerbated and contributed to by her fear of men.
(Cleaned up.)
Based on this, the court concluded that, based on the totality of the circumstances, a reasonable jury could find that Rich’s conduct was objectively offensive.
The court also held that plaintiff presented sufficient evidence that she subjectively perceived her work environment to be hostile, noting (inter alia) that she suffered panic attacks, was constantly “looking over her shoulder” afraid that she would be approached while alone, and presented allegations that “include more than just a single inappropriate comment and a sexual touching,” specifically, that “Rich grabbed Boone by her wrist, touched an intimate area of her body, made several sexually charged comments about her body, and propositioned her money for sex.”