Pierce v. Commonwealth Life Ins. Co., Civ. A. No. 92-53.

• Decision Date: 25 June 1993
• Docket Number: Civ. A. No. 92-53.
• Citation: 825 F. Supp. 783
• Parties: Tom PIERCE, Plaintiff, v. COMMONWEALTH LIFE INSURANCE COMPANY and Capital Holding Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

825 F. Supp. 783

Tom PIERCE, Plaintiff, v. COMMONWEALTH LIFE INSURANCE COMPANY and Capital Holding Corporation, Defendants.

Civ. A. No. 92-53.

United States District Court, E.D. Kentucky, Covington Division.

June 25, 1993.

Katharine C. Saunders, Robert J. Hollingsworth, Cors & Bassett, Cincinnati, OH, for plaintiff.

Michael A. Luvisi, Brown, Todd & Heyburn, Louisville, KY, for defendants.

MEMORANDUM OPINION

BERTELSMAN, Chief Judge:

Plaintiff brings this diversity action claiming reverse discrimination and intentional infliction of emotional distress, based on the circumstances surrounding his demotion by defendant. Plaintiff seeks compensatory and punitive damages.

Plaintiff Tom Pierce is represented by Katharine Saunders and Robert Hollingsworth. Defendant Commonwealth Life Insurance Co. and its parent corporation, Capital Holding Corp. are represented by Michael A. Luvisi and Donna King Perry.

I. Factual Background

Defendant Capital Holding Corp. is a Delaware corporation whose principal place of business is located in Louisville, Kentucky. Capital owns defendant Commonwealth Insurance Company, which is a Kentucky corporation with its principal place of business in Louisville ("Commonwealth" or "defendant"). Plaintiff, Tom Pierce ("plaintiff" or "Pierce") is an Indiana citizen who has held various positions with Commonwealth since 1958.

Pierce is currently employed as an insurance representative in Commonwealth's Florence, Kentucky office. However, between April 1983 and March 1991, he held a position of higher responsibility, that of Agency Manager of the Wabash Valley Agency in Kokomo, Indiana. His demotion from that position, and the circumstances surrounding it, comprise the subject of this lawsuit.

On March 4, 1991, Deena Shaffer, then Marion Office Administrator, contacted Vice President of Human Resources Peggy Erhart ("Erhart"), and complained about Pierce's management practices and his critical evaluation of her on recent work evaluations. Shaffer also supplied Erhart with the telephone number of Debbie Kennedy, the Lafayette Office Administrator. Kennedy, said Shaffer, had similar qualms about Pierce. When Erhart contacted Kennedy, Kennedy, too, complained about Pierce's management practices and low-brow humor. Specifically, Kennedy complained about receiving a trivet from Pierce reading, "Sex is a misdemeanor. De more I miss, de meanor I get," as well a xerox copy of a cartoon valentine from Pierce inscribed, "There are many ways to say `I love you' ... but fucking is the fastest." Kennedy also took issue with her recent performance evaluation, done by Pierce. Erhart conveyed all of this information to Commonwealth Field Vice President John Balser.

On March 6, 1991, plaintiff was summoned to a meeting with Erhart and Balser. It was at this meeting that Balser and Erhart first informed Pierce that he had been accused of sexually harassing female employees. While Balser and Erhart were initially evasive about the precise allegations, plaintiff himself unilaterally recalled to Erhart and Balser an instance on which he had shown Kennedy a sexually oriented valentine and trivet. Plaintiff quickly added, however, that Kennedy had welcomed this conduct in good humor. Balser and Erhart instructed Pierce to meet with them on the following day.

The next day, the three met at a hotel in Kokomo, Indiana. The parties dispute what transpired at this meeting. Plaintiff alleges that Balser and Erhart again refused to specify the basis of the harassment charge, and that Balser commented that Pierce might as well have been a "murderer, rapist or child molester, that it wouldn't be any worse." Defendant denies that Balser ever said this. It is undisputed, however, that after this meeting, plaintiff was advised that he could not return to his managerial position. His personal belongings were allegedly subsequently delivered to him at a roadside Hardee's.

After at least one further meeting with Commonwealth Vice Presidents Jim Quillman and Tom Siegle, plaintiff was demoted to his present position in Florence, Kentucky. This demotion reduced plaintiff's weekly paycheck by approximately $250, and presented him with a long commute to work.

Several weeks later, plaintiff received a letter, dated May 22, 1991, authored by Laurel Fuson, Assistant General Counsel for defendants. The letter accused Pierce of having engaged in and tolerated sexual harassment at his office, despite his previous counseling as to such misconduct. This was the first time that Commonwealth had presented Pierce with a formal statement of the reasons for their actions against him.

Subsequently, in late December 1991, Balser, Erhart, and Dave Hinkle met with Kennedy at Commonwealth's Lafayette office, where they learned that Ms. Kennedy herself had engaged in the following sexually oriented comments and behavior: she gave Pierce a sexually oriented cartoon, in response to his off-color valentine; she engaged in flirtatious behavior; she commented to Pierce that if she "became horizontal and spread her legs, she might get a better evaluation;" she brought a sexually oriented "joke" apron into the office; she sent and shared sexually oriented jokes and cartoons with other employees; and she brought a pornographic video into the office. It is undisputed that Commonwealth took no disciplinary action against Kennedy for having engaged in such conduct.

Defendant has in place a company policy against sexual harassment of the nature at issue here. That policy states:

Employees are expected to conduct themselves in accordance with Capital Holding Agency Group's equal employment opportunity policy. Acts of discrimination by supervisors or co-workers, including but not limited to, sexual, racial, or other unlawful harassment, are strictly prohibited and may result in disciplinary action up to and including termination.

II. Legal Conclusions

A. Reverse Sex Discrimination Claim Under Federal Law

1. Governing Standards of Law

Title VII of the Civil Rights Act of 1964 provides:

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

Pierce contends that he has demonstrated a prima facie case of reverse sex discrimination under Ky.Rev.Stat.Ann. ("K.R.S.") Chapter 344.040, because he was disciplined for off-color conduct, while Kennedy, his underling, was not disciplined at all for having engaged in more pronouncedly off-color behavior. Because plaintiff has alleged no direct evidence of discrimination, the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the seminal employment discrimination case for evaluating disparate treatment claims, applies.

Under the three step McDonnell Douglas formula, Pierce must first prove a prima facie case of discrimination against the defendant by a preponderance of the evidence. If Pierce succeeds, the burden then shifts to the defendant to show evidence of a legitimate, non-discriminatory reason for having treated him differently than Kennedy, pursuant to Commonwealth's sexual harassment policy. If defendant presents such evidence, Pierce must then demonstrate that the reasons given are merely a pretext for discriminatory acts. See McDonnell Douglas, 411 U.S. at 800-06, 93 S.Ct. at 1823-26; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981).

2. Prima Facie Case

In this case, plaintiff is a male seeking to demonstrate "reverse discrimination" against him by his employer, undertaken on the basis of his gender. It is settled that Title VII prohibits discrimination against all groups, including majority groups which have been historically favored. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279-80, 96 S.Ct. 2574, 2578-79, 49 L.Ed.2d 493 (1976). However, as one court has stated, "the presumptions in Title VII analysis that are valid when a plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a member of an historically favored group." Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10th Cir.1986). Therefore, "it makes little sense, within the historical context of the Act, to infer discrimination against men in the same way that discrimination is inferred against women." Jones v. Slater Steels Corp., 660 F.Supp. 1570, 1575 (N.D.Ind.1987).

Courts have thus modified the prima facie case enunciated in McDonnell Douglas to fit the circumstances of "reverse discrimination" cases. To make a prima facie case, a plaintiff must show that "background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority." Jasany v. United States Postal Serv., 755 F.2d 1244, 1252 (6th Cir.1985) (quoting Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981)); see also Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985); Ruth v. Children's Medical Ctr. No. 90-4069, 940 F.2d 662 (Table) (6th Cir. August 8, 1991) (available on Westlaw, 1991 WL 151158). In addition, to make his prima facie case, plaintiff must demonstrate that "the employer treated differently employees who were similarly situated but not members of the protected group." Murray, 770 F.2d at 67; see also Ruth, 940 F.2d 662 (Table), 1991 WL 151158 at 5.

Plaintiff here has failed to...