Centola v. Potter

• Decision Date: 29 January 2002
• Docket Number: No. CIV. A. 99-12662-NG.,CIV. A. 99-12662-NG.
• Citation: 183 F.Supp.2d 403
• Parties: Stephen CENTOLA, Plaintiff, v. John E POTTER, Postmaster General and United States Postal Service,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — District of Massachusetts

183 F.Supp.2d 403

Stephen CENTOLA, Plaintiff, v. John E POTTER, Postmaster General and United States Postal Service,¹ Defendants.

No. CIV. A. 99-12662-NG.

United States District Court, D. Massachusetts.

January 29, 2002.

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Scott A. Lathrop, Groton, MA, for Plaintiff.

Andrew L. Freeman, Special Office-U.S. Postal Service, Anthony Rice, Windsor, CT, for Defendants.

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GERTNER, District Judge.

This case raises important questions concerning the extent to which Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII") reaches allegations of employment-related discrimination on the basis of sex and sexual orientation.

Plaintiff, Stephen Centola ("Centola"), has brought this action against the defendants, John Potter, Postmaster General, and the United States Postal Service (together "Defendants") under Title VII and Executive Orders 13,087 and 11,478. Centola alleges that over a seven-year period of employment by the Postal Service, his co-workers continuously tormented him by making comments and leaving photographs which may be characterized as mocking his masculinity, portraying him as effeminate, and implying that he was a homosexual. When he complained about this oppressive conduct to his supervisors, they responded by suspending and firing him because of his complaints.

The Defendants now move for summary judgment on the following grounds: (1) Title VII does not prohibit discrimination based upon sexual orientation, (2) Title VII does not proscribe retaliation against an employee who has opposed discrimination based on sexual orientation, and (3) Executive Orders 11,478 and 13,087 do not establish a private cause of action for federal employees who have been discriminated against on the basis of their sexual orientation.

Because Centola has provided sufficient evidence to support the inference that he was harassed and retaliated against because of his sex and his failure to conform with his co-workers' sexual stereotypes, I must deny the Defendants' request for summary judgment on these claims. However, Centola cannot assert a private cause of action based solely on Executive Orders 13,087 and 11,478. As a result, the Defendants' Motion for Summary Judgment [docket entry # 14] is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Postal Service employed Centola as a letter carrier for over seven years.² During the course of his employment, Centola's co-workers harassed him by making sexually derogatory comments towards him and leaving signs and cartoons mocking him at his "case" (work space). Although Centola is homosexual, he never disclosed his sexual orientation to any of his co-workers or managers.

On one occasion, Centola's co-workers placed a sign stating "Heterosexual replacement on Duty" at his case. Co-workers taped pictures of Richard Simmons "in pink hot pants" to Centola's case. Centola Deposition at 7:18-8:4. Fellow carriers asked Centola if he would be marching in a gay parade and asked him if he had gotten AIDS yet. At other times, his co-workers called him a "sword swallower" and antigay epithets. His co-workers also placed cartoons mocking gay men at his case. Centola testified that this harassment was "a constant thing." Id.

Centola's supervisors and managers also would treat Centola differently than other male and female letter carriers. Managers would follow Centola, but not others, into the bathroom to check on him. They also permitted other carriers, but not Centola, to leave their cases while they were sorting mail in order to get coffee. Supervisors repeatedly disciplined him more severely than others for minor conduct and attendance infractions.³

Centola reported the incidents of harassment by his co-workers and supervisors over the years of his employment. Despite these complaints, the harassment continued. In fact, Centola alleges that his complaints to management about the harassment only resulted in further harassment and retaliation. Finally, on July 22, 1998, Centola was terminated.

Centola filed a Discrimination Complaint with the Postal Service on September 12, 1998. On December 30, 1999, Centola filed his current Complaint. The Complaint alleged that the discrimination suffered by Centola "included discrimination on account of Centola's sex—male" and "included discrimination on account of Centola's sexual orientation—homosexual." The Defendants now move for summary judgment.

II. LEGAL ANALYSIS

A. Summary Judgment Standard

A court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The term "material" means that "a contested fact has the potential to change the outcome of the suit . . . if the dispute over it is resolved favorably to the nonmovant," while the term "genuine" means that "the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

In determining the disposition of a summary judgment motion, the Court views the record and draws inferences in a light most favorable to the non-moving party. Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981). "When a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994).

B. Harassment Under Title VII

1. The Role Of Sex Stereotyping

The Defendants argue that I should dismiss Centola's Title VII sexual harassment claims because Title VII does not prohibit discrimination based upon sexual orientation in the workplace. Title VII makes it unlawful "for an employer . . . 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."⁴ 42 U.S.C. § 2000e-2(a)(1).

Indeed, the law is relatively clear that discrimination on the basis of sexual orientation is not barred under Title VII so long as the persons discriminating are not also discriminating on the basis of another prohibited characteristic, such as race or sex. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir.1999) (regarding "as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation") (emphasis added); Simonton v. Runyon, 232 F.3d 33, 35-36 (2nd Cir.2000) (finding claim that plaintiff was discriminated against because of his sexual orientation alone was not cognizable under Title VII). By itself, Centola's claim that he was discriminated against on the basis of his sexual orientation cannot provide a cause of action under Title VII.

However, Centola does not only allege that he was discriminated against because of his sexual orientation. He also claims that he was discriminated against because of his sex. And harassment of a man by other men is actionable under Title VII so long as there has been "discriminat[ion] . . . because of . . . sex in the terms or conditions of employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (internal quotation marks omitted).

But the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear. Sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true. In Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989),⁵ for example, the Court held that "an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." And that principle applies whether the plaintiff is a man or a woman. As the First Circuit noted, "just as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, see Price Waterhouse, 490 U.S. at 250-251, 109 S.Ct. at 1775, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity." Higgins, 194 F.3d at 261 n. 4. See also Simonton, 232 F.3d at 38 (recognizing that "a suit [by a man] alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex"); Ianetta v. Putnam Investments, Inc., 142 F.Supp.2d 131 (D.Mass.2001) (finding that plaintiff had stated cause of action under Title VII where he alleged that he was discriminated against because he did not conform to the male gender stereotype).⁶ Cf. Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir.2000) (using Title VII case law to find that cause of action existed under the Equal Credit Opportunity Act if defendant refused to give a loan application to a cross-dressing male because his dress "did not accord with his male gender.") Stated in a gender neutral way, the rule is: If an employer acts upon stereotypes about sexual roles in making employment decisions, or allows the use of these stereotypes in the creation of a hostile or abusive work environment,...