Yeary v. Goodwill Industries-Knoxville, Inc.

Decision Date24 February 1997
Docket NumberNo. 96-5145,INDUSTRIES-KNOXVILL,INC,96-5145
Citation107 F.3d 443
Parties73 Fair Empl.Prac.Cas. (BNA) 146, 69 Empl. Prac. Dec. P 44,533, 65 USLW 2556 Terry L. YEARY, Plaintiff-Appellee, v. GOODWILL, Robert G. Rosenbaum, and Robert E. Lee, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Bruce A. Anderson, Butler, Vines & Babb, Knoxville, TN, Scarlett A. May, briefed, Law Offices of Garry Ferraris, Knoxville, TN, for Plaintiff-Appellee.

H. Bruce Guyton, Hugh B. Bright, Jr. and James F. Little, briefed, Woolf, McClane, Bright, Allen & Carpenter, Knoxville, TN, for Defendants-Appellants.

Before: LIVELY, NELSON, and RYAN, Circuit Judges.

RYAN, Circuit Judge.

The plaintiff, Terry L. Yeary, a male, brought suit against his employer, a supervisor, and a coworker, under Title VII, 42 U.S.C. §§ 2000e et seq., alleging that he was sexually harassed by the male coworker, Robert E. Lee. The defendants appeal from the district court's interlocutory order denying their motion to dismiss, and contend that the plaintiff's claim for same-sex sexual harassment is not cognizable under Title VII. We reject their contention, and will affirm.


Terry Yeary was hired by Goodwill Industries-Knoxville, Inc., as a part-time cashier in July 1992. Shortly after Yeary began working at Goodwill, Robert Lee, a male coworker, asked Yeary for a date. Although not alleged in Yeary's complaint, an affidavit prepared by a former coworker of Yeary attests that "it was very well known among employees and higher level management that Mr. Lee was a homosexual and was notorious for harassing male employees of Goodwill."

According to the plaintiff's complaint, a couple of weeks after Lee asked Yeary for a date, Lee "again approached the ... plaintiff and began speaking to him in an offensive and harassing manner," and "physically touched the plaintiff in a harassing manner." Specifically, Lee "grabb[ed] [Yeary's] arm while [he] was arranging clothes on a rack and rubb[ed] the back of his hand across [Yeary's] chest and stomach." Yeary allegedly told his manager and assistant manager, as well as the head cashier, about both incidents.

After Yeary had worked at Goodwill for about a month and a half, he suffered a back injury that necessitated a month-long leave of absence. Before returning to his job, Yeary reported to Goodwill in order "to take care of certain administrative matte[r]s." While there, Lee "requested the plaintiff [to] come to his office. As soon as plaintiff entered ..., defendant grabbed the plaintiff by the arm and pushed him behind the office door and refused to allow the plaintiff to leave. Once again, Defendant Robert E. Lee propositioned the plaintiff...." Specifically, Lee "pin[ned] [Yeary] against the wall and began to whisper obscene comments about [Yeary's] physical appearance." Yeary alleges that he reported this incident to the same three individuals to whom he had reported the earlier incidents.

The next month, after Yeary had returned to work, Lee called Yeary at his home on two occasions while Lee was at work. "During both conversations, the defendant made lewd and obscene remarks to the plaintiff." Specifically,

[o]n one occasion, Mr. Lee telephoned early in the morning and asked [Yeary] what [he] was wearing in bed. Further, Mr. Lee asked [Yeary] if [he] masturbated. Finally, Mr. Lee asked [Yeary] if [he] had ever seen "12 inches" or if [he] had ever had "12 inches."

Again, Yeary allegedly reported this incident to his supervisors. According to Yeary and the head cashier with whom he had discussed Lee's conduct, his supervisors did not reprimand Lee, but instead "laughed and joked" about Lee's actions, and "discuss[ed] the fact that Mr. Lee had a history of harassing male employees of Goodwill."

Shortly thereafter, one supervisor requested that Yeary attend a management meeting in order to report Lee's behavior. Yeary did so and reported the incidents described above to a number of supervisory personnel, including defendant Robert G. Rosenbaum, the president and CEO of Goodwill. Yeary was terminated by Rosenbaum the same day.

Yeary filed an EEOC charge in March 1993, and received a right-to-sue letter. He then filed a complaint in federal district court against Goodwill, Lee, and Rosenbaum, alleging that the defendants' actions violated Title VII. Yeary's complaint set forth many of the details of the incidents of harassment described above, and further alleged that Yeary had informed management about the incidents on multiple occasions. Finally, the complaint alleged that Yeary was terminated "[a]s a proximate result of defendants' conduct."

The defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and attached an affidavit from defendant Rosenbaum. The plaintiff responded with his own affidavits and one from the head cashier. The district court observed that "[a]t the heart of defendants' motion is whether same-sex sexual harassment is actionable under Title VII." The court concluded that it is and, accordingly, denied the motion, but stayed the proceedings and certified the order as one involving a controlling question of law, in order to allow for an interlocutory appeal under 28 U.S.C. § 1292(b). We granted permission to appeal.


We note initially that there is some question whether this appeal should be treated as one arising under Fed.R.Civ.P. 12(b)(6) or under Fed.R.Civ.P. 56(c). Roughly stated, the traditional rule is that when a district court considers matters outside the pleadings in ruling on a motion to dismiss under Rule 12(b)(6), its ruling is treated as one under Rule 56(c). See Sinclair v. Schriber, 916 F.2d 1109, 1112 (6th Cir.1990); see also Fed.R.Civ.P. 12(b). Although dispositions under either rule receive de novo review from this court, there are significant differences between the two. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996); see also Briggs v. Ohio Elections Comm'n, 61 F.3d 487, 493 (6th Cir.1995).

There are several caveats that accompany disposition of a 12(b)(6) motion under 56(c). For example, in analyzing the risk of prejudicial surprise to the moving party resulting from this type of conversion, this court has held that

a party cannot raise for the first time on appeal an argument that she was surprised by the conversion of the motion to dismiss into a motion for summary judgment when the party was aware that materials outside the pleading had been submitted to the court before the court granted the motion.

Song v. City of Elyria, 985 F.2d 840, 842 (6th Cir.1993). Further, this court has also held that when affidavits do "nothing more than verify the complaint," and when they "add[ ] nothing new, but, in effect, reiterate[ ] the contents of the complaint itself," they are not truly "materials ... outside the pleading." Id.

We conclude that the district court's disposition should be reviewed as one made pursuant to Fed.R.Civ.P. 12(b)(6). Although the district court certainly considered matters outside the pleadings, those matters simply filled in the contours and details of the plaintiff's complaint, and added nothing new. The district court does not appear to have relied on the affidavits, in the sense that its rationale in any way hinged on the additional information provided there. Moreover, the district court expressly stated that it was ruling under 12(b)(6), and its analysis was based wholly on the legal sufficiency, vel non, of the plaintiff's claim. Finally, the defendants had ample opportunity to respond to the plaintiff's affidavits. It cannot be said that they suffered any prejudicial surprise.

We therefore review the district court's denial of the motion to dismiss de novo, and must affirm unless " 'it is established beyond a doubt that the plaintiff cannot prove any set of facts consistent with the allegations that would entitle such plaintiff to relief.' " Song, 985 F.2d at 843 (citations omitted).


Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire ... any individual ... because of such individual's ... sex," 42 U.S.C. § 2000e-2(a), and it applies equally to men and women, see, e.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 676, 103 S.Ct. 2622, 2627, 77 L.Ed.2d 89 (1983). The rationale for the hostile-environment doctrine is that sufficiently abusive harassment adversely affects a "term, condition, or privilege" of employment within the meaning of Title VII. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). We have held that the elements of a prima facie hostile environment claim in the sex discrimination context are as follows:

(1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome[ ] sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance and creating an intimidating, hostile, or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (5) the existence of respondeat superior liability.

Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir.1986) (emphasis added); accord Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 484 (6th Cir.1989). These standards were derived from nonbinding administrative guidelines promulgated by the EEOC. Id. at 619 & 619 n. 4. Only the third prong is at issue here.

The defendants argue that construing Title VII to reach same-sex sexual harassment would be an unjustified "expansion" of the statutory language. They assert that various courts have concluded that Title VII should apply...

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