Bibby v. Phila. Coca Cola Bottling Co.

Decision Date01 August 2001
Docket NumberCOCA-COLA,COCA-COL,BOTTLING,No. 00-1261,00-1261
Citation260 F.3d 257
Parties(3rd Cir. 2001) JOHN BIBBY, APPELLANT v. PHILA. COCA COLA BOTTLING COMPANY; RON WILSON, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS PRESIDENT OF OPERATIONS; CLIFF RISELL, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT OF OPERATIONS; FRAN SMITH, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS PRODUCTION MANAGER SUPERVISOR; BOB TAYLOR, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SUPERVISOR; STEVE FIORE, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS QUALITY CONTROL SUPERVISOR; FRANK BERTCHSCI, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS EMPLOYEE ATCOMPANY; JOHN KOLB, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF HUMAN RELATIONS ATBOTTLING COMPANY; J. BRUCE L LEWELLYN, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS CHIEF EXECUTIVE OFFICER ATBOTTLING COMPANY; GENE KELLER, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS WAREHOUSE MANAGER SUPERVISOR
CourtU.S. Court of Appeals — Third Circuit

[Copyrighted Material Omitted]

Arthur B. Jarrett, Esquire (Argued) Jonathan J. James, Esquire James & Jarrett 21 South 12th Street Stephen Girard Building, 7th Floor Philadelphia, PA 19107 Attorney for Appellant

Michael G. Tierce, Esquire (Argued) Schnader, Harrison, Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Attorney for Appellees

Before: Roth, Barry, Aldisert, Circuit Judges

OPINION OF THE COURT

Barry, Circuit Judge

John J. Bibby claimed to have been subjected to same-sex sexual harassment at the hands of his employer, the Philadelphia Coca-Cola Bottling Company, in violation of Title VII. The District Court granted summary judgment to the employer, and Bibby appealed. Because we conclude that Bibby did not present sufficient evidence to demonstrate that he suffered discrimination "because of sex," we will affirm the judgment of the District Court.

BACKGROUND

John Bibby has been an employee of the Philadelphia Coca-Cola Bottling Company since June 1978. In 1993, Bibby, who is gay, experienced some medical difficulties, including weight loss, breathing problems, and vomiting blood.1 On August 12, 1993, Bibby was having pains in his stomach and chest when he was found by his supervisor with his eyes closed and a machine for which he was responsible malfunctioning with product being destroyed. He was accused of sleeping on the job. Bibby asked for permission to go to the hospital and was told by the supervisor to "just go." As he was leaving, the supervisor told him he was terminated, although in fact he was suspended with the intent to terminate. Bibby was hospitalized for several weeks for treatment of depression and anxiety. During his suspension and after receiving clearance from his treating physician, he met with his supervisors to arrange his return to work. At this meeting, he was told that he would be paid $5,000 and would be given benefits and unemployment benefits for six months if he resigned, but if he did not accept the offer, he would be terminated. Bibby refused the offer and was terminated but, following arbitration of a grievance he filed, he was reinstated and awarded back pay.

On December 23, 1993, the day he returned to work, Bibby was assaulted in a locker room by a co-worker, Frank Berthcsi. Berthcsi told Bibby to get out of the locker room, shook his fist in Bibby's face, grabbed Bibby by the shirt collar, and threw him up against the lockers. On January 22, 1995, Berthcsi again came after Bibby. 2 On that day, Bibby was at the top of a set of steps working at a machine that puts cases of soda on wooden or plastic pallets. Berthcsi was driving a forklift loaded with pallets, and he "slammed" the load of pallets under the stairs, blocking Bibby's exit from the platform on which he was standing. Bibby paged a supervisor, and Berthcsi was ordered to remove the pallets. He refused. Berthcsi and Bibby then exchanged some angry words, and Berthcsi repeatedly yelled at Bibby that "everybody knows you're gay as a three dollar bill," "everybody knows you're a faggot," and "everybody knows you take it up the ass." 3 Later that day, Berthcsi called Bibby a "sissy." Bibby filed a complaint with the union and with the employer, and Berthcsi was suspended pending an investigation. Bibby refused the union's request that he withdraw the complaint, and Berthcsi's employment was terminated. The union filed a grievance on behalf of Berthcsi, and he was reinstated subject to the employer's condition that he undergo anger management training.

Bibby claims that supervisors also harassed him by yelling at him, ignoring his reports of problems with machinery, and arbitrarily enforcing rules against him in situations where infractions by other employees would be ignored. He does not assert that there was any sexual component to any of this alleged harassment. Finally, Bibby claims that graffiti of a sexual nature, some bearing his name, was written in the bathrooms and allowed to remain on the walls for much longer than some other graffiti. The record does not disclose the contents of any graffiti that allegedly mentioned Bibby's name.

Shortly after the January 1995 incident with Berthcsi, Bibby filed a complaint with the Philadelphia Human Rights Commission (PHRC) alleging that he was being discriminated against on the basis of his sexual orientation. In late 1997, after completing an investigation, the PHRC notified Bibby that it was closing the case and issuing him a 90-day right to sue letter.

On January 20, 1998, Bibby filed a pro se complaint in the Eastern District of Pennsylvania. He subsequently retained counsel, however, and an amended complaint was filed on June 30, 1998. The amended complaint named as defendants the employer and nine individual officers or employees of the employer. In the amended complaint, Bibby alleged that he had been sexually harassed in violation of Title VII, and sought compensatory and punitive damages. The complaint also included two supplemental state law claims, one for intentional infliction of emotional distress and one for assault and battery.

On November 20, 1998, the District Court granted in part defendants' motion to dismiss, dismissing all individual defendants and dismissing Bibby's assault and battery claim.4 Following a period of discovery, the employer filed a motion for summary judgment on the remaining counts. On March 2, 2000, the District Court granted this motion. In its twenty-page memorandum and order, the Court determined that the evidence indicated that Bibby was harassed because of his sexual orientation and not because of his sex. Because Title VII provides no protection from discrimination on the basis of sexual orientation, summary judgment was granted on Bibby's Title VII claim. Having dismissed the only federal claim, the Court chose not to exercise supplemental jurisdiction over the remaining state law claim and dismissed that claim without prejudice.

It is from the grant of summary judgment to the employer that Bibby appeals. Our review is plenary. See Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508, 515 (3d Cir. 1997). We have jurisdiction under 28 U.S.C.S 1291.

This appeal presents a single issue: did Bibby present evidence sufficient to support a claim of same-sex sexual harassment under Title VII? The District Court found that Bibby was harassed because of his sexual orientation, not because of his sex, and therefore rejected his sexual harassment claim. Bibby argues that the District Court erred and further argues that its finding, if upheld, would place a special burden on gay and lesbian plaintiffs alleging same-sex sexual harassment because they will be required to prove that harassment was not motivated by their sexual orientation. We disagree on both scores.

Title VII of the 1964 Civil Rights Act, 42 U.S.C.S 2000e et seq., provides that "[i]t shall be an unlawful employment practice . . . to discriminate against any individual . . . because of . . . sex." 42 U.S.C. S 2000e-2(a)(1). It is clear, however, that Title VII does not prohibit discrimination based on sexual orientation. Simonton v. Runyon , 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989). Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation. See, e.g., Employment Nondiscrimination Act of 1996, S. 2056, 104th Cong. (1996); Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995); Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994). Thus, Bibby can seek relief under Title VII only for discrimination because of sex.

Until 1998, it was unclear whether and under what circumstances Title VII would apply in a case of sexual harassment where both the harasser and the victim were of the same sex. The Fifth Circuit held that Title VII absolutely precluded a cause of action where both the harasser and victim were male. Garcia v. Elf Atochem North America, 28 F.3d 446, 451-52 (5th Cir. 1994). The Fourth Circuit, however, found a cause of action for same-sex sexual harassment under Title VII but only if the harasser was homosexual. Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191, 1195 (4th Cir. 1996) ("a claim does not lie where both the alleged harassers and the victim are heterosexuals of the same sex"), with Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 143 (4th Cir. 1996) ("a same-sex `hostile work environment' sexual harassment claim may lie under Title VII where a homosexual male (or female) employer discriminates against an employee of the same sex"). Finally, the Seventh...

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