Prowel v. Wise Business Forms, Inc.

• Decision Date: 28 August 2009
• Docket Number: No. 07-3997.,07-3997.
• Parties: Brian D. PROWEL, Appellant, v. WISE BUSINESS FORMS, INC., Appellee.
• Court: U.S. Court of Appeals — Third Circuit

579 F.3d 285

Brian D. PROWEL, Appellant, v. WISE BUSINESS FORMS, INC., Appellee.

No. 07-3997.

United States Court of Appeals, Third Circuit.

Argued October 1, 2008.

Filed: August 28, 2009.

Katie R. Eyer [Argued], Salmanson Goldshaw, Corey S. Davis, Equality Advocates Pennsylvania, Philadelphia, PA, Timothy P. O'Brien, Pittsburgh, PA, for Appellant.

Kurt A. Miller [Argued], Thorp, Reed & Armstrong, Pittsburgh, PA, for Appellee.

Susan Frietsche, Tatyana Margolin, Women's Law Project, Pittsburgh, PA, for Amicus Appellant.

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Brian Prowel appeals the District Court's summary judgment in favor of his former employer, Wise Business Forms, Inc. Prowel sued under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, alleging that Wise harassed and retaliated against him because of sex and religion. The principal issue on appeal is whether Prowel has marshaled sufficient facts for his claim of "gender stereotyping" discrimination to be submitted to a jury. We also consider whether the District Court erred in granting summary judgment to Wise on Prowel's religious discrimination claim.

I.

We exercise plenary review over the District Court's grant of summary judgment and we apply the same standard as the District Court. Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits 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). "In making this determination, we `must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Norfolk, 512 F.3d at 91 (quoting Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir.2001)). Because summary judgment was entered against Prowel, we view the record in the light most favorable to him.

II.

Prowel began working for Wise in July 1991. A producer and distributor of business forms, Wise employed approximately 145 workers at its facility in Butler, Pennsylvania. From 1997 until his termination, Prowel operated a machine called a nale encoder, which encodes numbers and organizes business forms. On December 13, 2004, after 13 years with the company, Wise informed Prowel that it was laying him off for lack of work.

A.

Prowel's most substantial claim is that Wise harassed and retaliated against him because of sex. The theory of sex discrimination Prowel advances is known as a "gender stereotyping" claim, which was first recognized by the Supreme Court as a viable cause of action in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

Prowel identifies himself as an effeminate man and believes that his mannerisms caused him not to "fit in" with the other men at Wise. Prowel described the "genuine stereotypical male" at the plant as follows:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn't drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn't.

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot "the way a woman would sit"; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with "pizzazz."

Some of Prowel's co-workers reacted negatively to his demeanor and appearance. During the last two years of his employment at Wise, a female co-worker frequently called Prowel "Princess." In a similar vein, co-workers made comments such as: "Did you see what Rosebud was wearing?"; "Did you see Rosebud sitting there with his legs crossed, filing his nails?"; and "Look at the way he walks."¹

Prowel also testified that he is homosexual. At some point prior to November 1997, Prowel was "outed" at work when a newspaper clipping of a "man-seeking-man" ad was left at his workstation with a note that read: "Why don't you give him a call, big boy." Prowel reported the incident to two management-level personnel and asked that something be done. The culprit was never identified, however.

After Prowel was outed, some of his co-workers began causing problems for him, subjecting him to verbal and written attacks during the last seven years of his tenure at Wise. In addition to the nicknames "Princess" and "Rosebud," a female co-worker called him "fag" and said: "Listen, faggot, I don't have to put up with this from you." Prowel reported this to his shift supervisor but received no response.

At some point during the last two years of Prowel's employment, a pink, light-up, feather tiara with a package of lubricant jelly was left on his nale encoder. The items were removed after Prowel complained to Henry Nolan, the shift supervisor at that time. On March 24, 2004, as Prowel entered the plant, he overheard a co-worker state: "I hate him. They should shoot all the fags." Prowel reported this remark to Nolan, who said he would look into it. Prowel also overheard conversations between co-workers, one of whom was a supervisor, who disapproved of how he lived his life. Finally, messages began to appear on the wall of the men's bathroom, claiming Prowel had AIDS and engaged in sexual relations with male co-workers. After Prowel complained, the company repainted the restroom.

B.

In addition to the harassment Prowel allegedly experienced because of his sex, he also claims that he was discriminated against because of religion. Specifically, Prowel argues that his conduct did not conform to the company's religious beliefs. When asked at his deposition what those religious beliefs were, Prowel responded: "a man should not lay with another man."

For a few months during the spring of 2004, Prowel found anonymous prayer notes on his work machine on a daily basis. Prowel also found messages indicating he was a sinner for the way he lived his life. Additionally, he found a note stating: "Rosebud will burn in hell." Prowel attributed these notes and comments to Michael Croyle, a Christian employee who refused to speak to Prowel. Moreover, Prowel testified in his deposition that nothing was left on his machine after Croyle left the company.

Another co-worker, Thomas Bowser, stated that he did not approve of how Prowel lived his life. Prowel testified that Bowser brought religious pamphlets to work that stated "the end is coming" and "have you come clean with your maker?"

C.

Prowel alleges that his co-workers shunned him and his work environment became so stressful that he had to stop his car on the way to work to vomit. At some point in 2004, Prowel became increasingly dissatisfied with his work assignments and pay. Prowel believed he was asked to perform more varied tasks than other nale encoder operators, but was not compensated fairly for these extra tasks, even though work piled up on his nale encoder.

In April 2004, Prowel considered suing Wise and stated his intentions to four non-management personnel, asking them to testify on his behalf. Prowel allegedly told his colleagues that the lawsuit would be based on harassment for not "fitting in"; he did not say anything about being harassed because of his homosexuality. These four colleagues complained to management that Prowel was bothering them.

On May 6, 2004, General Manager Jeff Straub convened a meeting with Prowel and supervisors Nolan and John Hodak to discuss Prowel's concern that he was doing more work for less money than other nale encoder operators. Prowel's compensation and workload were discussed, but the parties did not reach agreement on those issues. Straub then asked Prowel if he had approached employees to testify for him in a lawsuit, and Prowel replied that he had not done so. Prowel has since conceded that he did approach other employees in this regard.

On December 13, 2004, Prowel was summoned to meet with his supervisors, who informed him that he was terminated effective immediately for lack of work.

III.

After exhausting his administrative remedies before the Equal Employment Opportunity Commission, Prowel sued Wise in the United States District Court for the Western District of Pennsylvania, alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat. § 951, et seq. (PHRA). Prowel alleged harassment and wrongful termination because of sex and religion and concomitant retaliation. Following discovery, Wise moved for summary judgment and the District Court granted the company's motion in its entirety. As relevant to this appeal,² the District Court held that Prowel's suit was merely a claim for sexual orientation discrimination— which is not cognizable under Title VII— that he repackaged as a gender stereotyping claim in an attempt to avoid summary judgment. Prowel's religious discrimination claim failed for the same reason. As for Prowel's retaliation claim, the District Court held that Prowel had a good faith belief that he had engaged in protected activity under Title VII, but that his belief was not objectively reasonable given that his complaint was actually based on sexual orientation discrimination. Prowel filed this timely appeal.³

IV.

In evaluating Wise's motion for summary judgment, the District Court properly focused on our decision in Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d...