579 F.3d 285 (3rd Cir. 2009), 07-3997, Prowel v. Wise Business Forms, Inc.

Docket Nº:07-3997.
Citation:579 F.3d 285
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:Brian D. PROWEL, Appellant, v. WISE BUSINESS FORMS, INC., Appellee.
Attorney: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,...
Judge Panel:Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.
Case Date:August 28, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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579 F.3d 285 (3rd Cir. 2009)

Brian D. PROWEL, Appellant,



No. 07-3997.

United States Court of Appeals, Third Circuit.

August 28, 2009

Argued Oct. 1, 2008.

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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.


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.


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.


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.


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

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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

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bathroom, claiming Prowel had AIDS and engaged in sexual relations with male co-workers. After Prowel complained, the company repainted the restroom.


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...

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