Wrightson v. Pizza Hut of America, Inc.

• Citation: 99 F.3d 138
• Decision Date: 15 November 1996
• Docket Number: No. 96-1127,96-1127
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 186, 69 Empl. Prac. Dec. P 44,314, 65 USLW 2311 Arthur WRIGHTSON, Plaintiff-Appellant, v. PIZZA HUT OF AMERICA, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 138

99 F.3d 138

72 Fair Empl.Prac.Cas. (BNA) 186,

69 Empl. Prac. Dec. P 44,314, 65 USLW 2311

Arthur WRIGHTSON, Plaintiff-Appellant, v. PIZZA HUT OF AMERICA, INC., Defendant-Appellee.

No. 96-1127.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 23, 1996.

Decided Oct. 31, 1996.

As Amended Nov. 15, 1996.

ARGUED: George Bryan Adams, III, Waggoner, Hamrick, Hasty, Monteith & Kratt, P.L.L.C., Charlotte, NC, for Plaintiff-Appellant. Edward Laughtin Eatman, Jr., Paul Christopher Lawrence, Hedrick, Eatman, Gardner & Kincheloe, L.L.P., Charlotte, NC, for Defendant-Appellee. ON BRIEF: William Howard Elam, Wishart, Norris, Henninger & Pittman, Charlotte, North Carolina; June K. Allison, Wishart, Norris, Henninger & Pittman, Burlington, NC, for Plaintiff-Appellant.

Before MURNAGHAN and LUTTIG, Circuit Judges, and HALLANAN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Reversed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge HALLANAN joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

Plaintiff-appellant Arthur Wrightson, formerly an employee of defendant-appellee Pizza Hut of America, Inc., appeals the dismissal under Federal Rule of Civil Procedure 12(b)(6) of his Title VII claim against Pizza Hut. Wrightson, a heterosexual male, alleges that his homosexual male supervisor and other homosexual male employees at Pizza Hut subjected him to a "hostile work environment" in violation of Title VII. The district court dismissed Wrightson's claim, holding that same-sex sexual harassment is not actionable under Title VII. For the reasons that follow, we reverse.

I.

Because Wrightson challenges the district court's dismissal of his complaint under Federal Rule of Civil Procedure 12(b)(6), we accept as true for purposes of this appeal the facts as alleged in his complaint and attached affidavits. Martin Marietta v. Intern. Tel. Satellite, 991 F.2d 94, 97 (4th Cir.1992).

Wrightson, a heterosexual male, was sixteen years old when, from March of 1993 until March of 1994, he was employed as a cook and waiter at Pizza Hut store number 618041, located at 8800 Pineville-Matthews Road, Charlotte, North Carolina. During that time, Bobby Howard, an openly homosexual male, J.A. at 8-10, 48, 56, 60, was Wrightson's immediate supervisor. Wrightson's co-workers included five openly homosexual males--Leonard Wilson, Brandon Johnson, David Jackson, Shane Campbell, and Billy (last name unknown). J.A. at 8-10, 48, 51, 56, 60. Three of Wrightson's co-workers were heterosexual males--Michelangelo Macri, Brad Wentzel, and Aaron George Sim. J.A. at 48-62.

In November or December of 1993, Howard and the other homosexual male employees began sexually harassing Wrightson and the other heterosexual male employees. (Wrightson does not allege that the homosexual employees harassed either female employees or homosexual male employees.) After Pizza Hut hired a male employee, the homosexual employees attempted to learn whether the new employee was homosexual or heterosexual. J.A. at 53. If the employee was heterosexual, then the homosexual employees began to pressure the employee into engaging in homosexual sex. J.A. at 53. The harassment continued during working hours "on a daily basis," J.A. at 8, for seven months, in the presence of and within the knowledge of upper management. Indeed, the harassment continued even after Wrightson complained to management.

The harassment of Wrightson took the form of sexual advances, in which Howard graphically described homosexual sex to Wrightson in an effort to pressure Wrightson into engaging in homosexual sex. J.A. at 8, 49. As alleged in the complaint,

during working hours [Howard] made numerous comments to [Wrightson] of a graphic and explicit nature wherein Howard ... would graphically describe his homosexual lifestyle and homosexual sex, would make sexual advances towards [Wrightson], would subject [Wrightson] to vulgar homosexual sexual remarks, innuendos and suggestions, and would otherwise embarrass and humiliate [Wrightson] by questioning [him] as to why he did not wish to engage in homosexual activity and would encourage and invite [Wrightson] to engage in such homosexual activity.

J.A. at 8. In addition, Howard repeatedly touched Wrightson in sexually provocative ways. On several occasions, for example, Howard ran his hands through Wrightson's hair, massaged Wrightson's shoulders, purposely rubbed his genital area against Wrightson's buttocks while walking past him, squeezed Wrightson's buttocks, and pulled out Wrightson's pants in order to look down into them. J.A. at 9, 12. While touching Wrightson, Howard made sexually explicit comments, described homosexual sex, and invited Wrightson to engage in homosexual sex. Id.

Macri, Wentzel, and Sim were similarly pressured by Howard to engage in homosexual sex. Howard physically touched, and made sexual comments to, all three employees, explicitly describing homosexual sex to them and inviting them to engage in homosexual sex. J.A. at 49, 50, 57, 60, 61. For example, on one occasion, Howard suggested to Macri and Wrightson that they should try what Howard called the "golden enema," referring to anal sex. J.A. at 51. On another occasion, Howard attempted to kiss Macri as Macri left the Pizza Hut. J.A. at 50. As with Wrightson, Howard massaged these employees' shoulders and rubbed his genital area against their buttocks while making sexually explicit comments to them. J.A. at 50, 60.

Although Howard's conduct was the most egregious, J.A. at 49, 57, 60, the other homosexual employees engaged in a similar pattern of harassment of Wrightson, J.A. at 9-10, and his heterosexual co-workers. For example, Jackson once described to the heterosexual males how he wanted to have his teeth removed in order to give better oral sex. J.A. at 51. On another occasion, Wilson called Wentzel at Wentzel's home and asked him on a date, even though Wilson was aware that Wentzel was heterosexual. J.A. at 58. Wilson also told Macri that he thought Wrightson was "cute," and joked that Wrightson was able to get work-breaks because he performed oral sex. J.A. at 52.

Wrightson and the other heterosexual males made it absolutely clear to Howard and the homosexual employees that the harassment was unwelcome. Wrightson, for example, specifically told Howard and the others to stop the harassment on numerous occasions. J.A. at 10-16, 55. Macri told the homosexual males that if they did not stop, he would file a complaint against them. J.A. at 52. Wentzel told the homosexual employees to "shut up" each time they directed a sexual comment toward him. J.A. at 58. Sim also repeatedly complained to Howard about the harassment. J.A. at 61. Notwithstanding these protests, the harassment continued.

The manager of the Pizza Hut, Jennifer Tyson, and the assistant manager, Romeo Acker, were aware of the harassment and of the heterosexual males' objections to it. According to the complaint, "[Wrightson] ... and his mother, Cathy Celentano, complained on numerous occasions to [Wrightson's] immediate supervisors, store managers of the subject Pizza Hut and other supervisors and managers of [Pizza Hut] about the verbal and physical sexual harassment which was being directed at [Wrightson] by [Pizza Hut's] employees." J.A. at 10-11. Tyson and Acker even personally witnessed the harassment on several occasions. J.A. at 61. Neither Tyson nor Acker, however, took any disciplinary action against Howard or the others. J.A. at 12-14, 54, 59, 61-62. After one incident, Wrightson's mother complained directly to Acker and Tyson about the harassment. J.A. at 12. Tyson admitted to Wrightson's mother that she was aware of the harassment and also that Howard's actions constituted sexual harassment, but she contended that she was unable to control Howard. J.A. at 13. At one point, Tyson even called a meeting at which she ordered the homosexual employees to stop harassing Wrightson and the others, and advised them that their conduct violated federal law. J.A. at 13. After this meeting, the homosexual employees joked about the possibility of a federal sexual harassment suit, J.A. at 13-14, and the harassment continued and "intensified," J.A. at 11-12, 14. Tyson and Acker took no formal action against Howard or the other homosexuals at any time. J.A. at 13-14, 54, 59, 61-62.

On August 15, 1995, Wrightson filed this action against Pizza Hut in the United States District Court for the Western District of North Carolina, Charlotte Division, alleging that he had been sexually discriminated against, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Wrightson alleged that, because of the actions of Howard and the other homosexual employees, he had been subjected to a "hostile work environment" in violation of Title VII, as interpreted by the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

Relying on the Fifth Circuit's holding in Garcia v. Elf Atochem North America, 28 F.3d 446, 451-52 (5th Cir.1994), that "harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones," the district court held that no Title VII cause of action lies where the perpetrator of the sexual harassment and the target of the harassment are of the same sex. The district court therefore dismissed Wrightson's complaint under Federal Rule of Civil Procedure 12(b)(6).

II.

A.

Wrightson contends on appeal that the district court erred in dismissing his claim because a claim of same-sex sexual harassment under Title VII may lie where the perpetrator of the sexual harassment is homosexual. ¹

We first addressed the issue of same-sex sexual harassment only recently in McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (4th...