40 F.3d 796 (6th Cir. 1994), 93-6004, Pierce v. Commonwealth Life Ins. Co.

Docket Nº:93-6004.
Citation:40 F.3d 796
Party Name:Tom PIERCE, Plaintiff-Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY and Capital Holding Corporation, Defendants-Appellees.
Case Date:November 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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40 F.3d 796 (6th Cir. 1994)

Tom PIERCE, Plaintiff-Appellant,



Corporation, Defendants-Appellees.

No. 93-6004.

United States Court of Appeals, Sixth Circuit

November 29, 1994

Argued Aug. 5, 1994.

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[Copyrighted Material Omitted]

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Robert J. Hollingsworth (briefed) and Katharine C. Weber (argued), Cors & Bassett, Cincinnati, OH, for plaintiff-appellant.

Michael A. Luvisi (argued and briefed) and Donna K. Perry, Brown, Todd & Heyburn, Louisville, KY, for defendants-appellees.

Before: GUY and BOGGS, Circuit Judges; and CLELAND, District Judge. [*]

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CLELAND, District Judge.

Appellant, who worked for appellees' insurance company as an agency manager, was found to be in violation of the company's sexual harassment policy. Appellees demoted appellant from management, decreased his pay, and transferred him to a new location. Appellant then brought this diversity action seeking damages under two state law theories, intentional infliction of emotional distress and "reverse discrimination." After discovery closed, Appellees brought a motion for summary judgment on both counts. The district court granted the motion as to each count and dismissed the case. This appeal followed. We shall affirm the judgment of the district court.


The facts of this case are not complicated and were amply set forth by the district court in a published opinion. See Pierce v. Commonwealth Life Ins. Co., 825 F.Supp. 783 (E.D.Ky.1993). We summarize here: Appellant Tom Pierce ("Appellant" or "Pierce") was a supervisor of three offices for Appellees' Commonwealth Life Insurance Company and Capital Holding Corporation (collectively referred to as "Commonwealth" or "company"). Pierce had been employed by Commonwealth in various positions since August of 1958. From April, 1983 to March, 1991, Pierce held the position of Agency Manager of The Wabash Valley Agency in Kokomo, Indiana. During his tenure as Agency Manager, Pierce supervised three offices located in Indiana.

In early March of 1991 an office administrator in one of the offices, Debbie Kennedy, complained of sexually inappropriate behavior by Pierce, directing her protest to Peggy Erhart, who was employed in the company's human resources department. Specifically, Kennedy complained about receiving a card from Pierce reading, "Sex is a misdemeanor. De more I miss, de meanor I get." In addition, Kennedy claimed Pierce gave her a cartoon valentine which stated, "There are many ways to say 'I love you' ... but f____ing is the fastest." Kennedy also protested about her most recent evaluation and merit increase.

Erhart relayed the above information to John Balser, the company's field vice president. On March 6, 1991, Erhart and Balser met with Pierce and accused him of sexually harassing two female employees, Kennedy and Deena Shaffer. 1 According to Pierce, Erhart and Balser refused to explain the specific allegations of sexual harassment, but instead demanded that Pierce himself describe what he had done to offend the two employees. In response, Pierce described the same two incidents outlined above relating to himself and Kennedy. Pierce emphatically maintained, however, that these isolated incidents did not amount to sexual harassment because Kennedy was a willing participant in the conduct. Indeed, Pierce indicated that Kennedy's behavior was often off-color and even more flagrant than Pierce's. 2 For example, Kennedy gave Pierce a sexually-oriented cartoon in response to his off-color valentine; she engaged in flirtatious behavior; she commented to Pierce, "If I became horizontal and spread my legs, I might get a better evaluation"; she brought in a "joke" apron which had suspended from it a fabric phallus and a printed message: "where's the beef?"; she sent and shared sexually explicit jokes and cartoons with other employees; and she brought a pornographic videotape into the office. See id. at 785.

Pierce again met with Erhart and Balser the next day (March 7, 1991). Pierce alleges that at this meeting Erhart and Balser were evasive and that Balser commented that Pierce might as well have been a "murderer, rapist or child molester, that it wouldn't be any worse."

Based upon its investigation and Pierce's own admissions, the company found Pierce in violation of its sexual harassment policy. 3

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Pierce was subsequently demoted from agency manager to the position of insurance representative; his pay was reduced by approximately $250 per week; and he was transferred to an office in Kentucky, which increased his commuting time. In addition, Pierce's personal belongings from the office were dropped off to him at a "Hardee's" roadside fast food restaurant. When Pierce later confronted Balser over the telephone about the specifics of the allegations, Balser allegedly replied, "if Debbie [Kennedy] had pulled her pants down and you would have looked, you were just as guilty" and "you don't have to get your hand wet to be guilty." Finally, on May 22, 1991, Pierce, for the first time, received a formal statement as to the reasons for Commonwealth's actions. In that statement, counsel for the company alleged that Pierce had been counseled by other managers in regard to complaints filed by a female customer and office administrators on two occasions during the past ten years. Pierce denies that any past harassment or counseling ever took place. Contrasted to the punishment meted out to Pierce, it is undisputed that the company took no disciplinary action against Kennedy.

Pierce filed the instant diversity suit alleging the following state law claims: (1) "reverse discrimination" and (2) intentional infliction of emotional distress. The district court granted the company's motion for summary judgment on both counts. Pierce appeals that decision.


This court reviews grants of summary judgment de novo and it applies the same test utilized by the district court. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). The applicable standard for motions for summary judgment is well settled. To grant a motion for summary judgment, the court must find that the pleadings, together with the depositions, interrogatories and affidavits on file, establish that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A party seeking summary judgment bears the initial burdens of specifying the basis upon which it contends judgment should be granted and of identifying that portion of the record which, in its opinion, demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Thus, "the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554. The nonmoving party must thereafter produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

Although a plaintiff is entitled to a review of the evidence in the light most favorable to him or her, the nonmoving party is required to do more than simply show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Rule requires the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added); see also United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir.1993) (court not required to speculate as to what portion of record nonmoving party relies upon, nor is there an obligation for it to "wade through" the record for specific facts). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.


The first issue this court must consider is whether the district court erred in

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dismissing Pierce's claim of "reverse discrimination." Pierce contends that if he violated the company's sexual harassment policy then so, certainly, did Kennedy; yet, the company took adverse action solely against Pierce. Thus, claims Pierce, he suffered impermissible discrimination pursuant to Kentucky's version of Title VII 4, found at Ky.Rev.Stat.Ann. ("K.R.S.") Sec. 344.040 5, by being treated differently than Kennedy, a female employee. Because this case is based on diversity jurisdiction the district court correctly ruled that Kentucky law applies to the state law claims. See, Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

This disparate treatment case is subject to the following tripartite analysis, with the burden of proof remaining with Pierce at all times:

(1) the plaintiff must establish a prima facie case of discrimination, (2) the employer must offer evidence of a legitimate, nondiscriminatory reason for its actions, and (3) the plaintiff must prove that the reason offered is in fact a pretext for intentional discrimination.

Kent County Sheriff's Ass'n v. County of Kent, 826 F.2d 1485, 1492 (6th Cir.1987) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823-24, 36 L.Ed.2d 668 (1973)).

In McDonnell Douglas, the Court set forth the general elements required for a plaintiff to prove a prima facie case: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job...

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