United States District Court, Eastern District of Pennsylvania
March 2, 2000
JOHN J. BIBBY, PLAINTIFF,
THE PHILADELPHIA COCA COLA BOTTLING CO., DEFENDANT.
The opinion of the court was delivered by: Jan E. Dubois, J.
ORDER & MEMORANDUM
AND NOW, to wit, this 2nd day of March, 2000, upon consideration
of Defendant Philadelphia Coca-Cola Bottling Company's Motion for
Summary Judgment (Document No. 46, filed June 24, 1999), the
Memorandum of Law on Behalf of Plaintiff, John. J. Bibby, Contra
the Motion for Summary Judgment Filed on Behalf of the Defendant,
Philadelphia Coca-Cola Bottling Company (Document No. 47, filed
July 19, 1999), Defendant's Reply Memorandum to Plaintiff's
Memorandum in Opposition to Defendant's Motion for Summary
Judgment (Document No. 49, filed August 16, 1999), Defendant's
Motion for Leave to Supplement Defendant's Motion for Summary
Judgment (Document No. 70, filed January 5, 2000), and Plaintiff's
Reply to Supplemental Filing for Summary Judgment by Defendant,
Philadelphia Coca Cola Bottling Company (Document No. 71, filed
January 19, 2000), for the reasons stated in the attached
memorandum, IT IS ORDERED as follows:
1. Defendant's Motion for Summary Judgment is GRANTED as
to Count I of the Amended Complaint alleging a violation
of Title VII, 42 U.S.C. § 2000e et seq., and JUDGMENT is
ENTERED in favor of Defendant Philadelphia Coca-Cola
Bottling Company and against Plaintiff John J. Bibby; and,
2. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to
exercise supplemental jurisdiction over Count II of the Amended
Complaint alleging a state law claim of intentional
infliction of emotional distress, and Count II of the
Amended Complaint is DISMISSED WITHOUT PREJUDICE.
Presently before the Court is the motion for summary judgment of
Philadelphia Coca-Cola Bottling Company ("Coca-Cola" or
"defendant"). In its motion, defendant seeks summary judgment
against plaintiff on plaintiff's Title VII same-sex sexual
harassment claim (Count I, Amended
Complaint) and plaintiff's state law intentional infliction of
emotional distress claim (Count II, Amended Complaint).
Based on the evidence currently before the Court, the facts can be
summarized as follows:
Plaintiff John Bibby ("plaintiff") began working for
defendant in June, 1978, shortly after graduating from
high school. Approximately 30 days after beginning his
employment with Coca-Cola, plaintiff joined the
International Brotherhood of Teamsters, Local 830 ("Local
830"), a union which has a collective bargaining
relationship with Coca-Cola. At all times material to the
case, the terms of plaintiff's employment were governed
by a collective bargaining agreement ("CBA") between
Coca-Cola and Local 830.
The first incident of which plaintiff complains in the Amended
Complaint occurred in 1993, when plaintiff became ill. He
experienced weight loss and vomited blood. During this time,
plaintiff claims he "felt compelled to disclose his alternative
male lifestyle to defendant, Coca Cola." On August 12, 1993,
plaintiff experienced chest and stomach pains so severe as to
cause him to double over in pain. That same day, Cliff Risell,
defendant's Vice-President of Operations, approached plaintiff's
workstation from behind, and found plaintiff slumped over,
apparently asleep. Risell yelled to plaintiff, at which point
plaintiff jumped to his feet, and stated that he had
severe chest pains. Plaintiff told Risell that he needed
to go to the hospital. Risell allegedly told him, "So
go." However, before plaintiff could leave the plant,
Risell, accompanied by Dennis Anderson, a Local 830 shop
steward, stopped him and told him he was suspended with
intent to terminate for sleeping on the job and for
leaving his assigned post.
During plaintiff's suspension, he claims to have been offered
$5,000 with six months' benefits and six months' unemployment by
Risell and John Kolb — defendant's director of human
resources — if plaintiff would quit. Plaintiff alleges
that he was told that, if he did not accept this offer,
he would be terminated. Plaintiff decided to fight his
suspension, at which point he was terminated. On December
17, 1993, after an arbitration hearing was held pursuant
to the CBA, an arbitration panel ruled against defendant,
finding that Risell had attempted an improper discharge
of plaintiff (the "arbitration decision"). Plaintiff was
reinstated with full back pay and all benefits.
Plaintiff alleges that, after being reinstated, he experienced
tension with Risell and other co-workers. As evidence of this
tension, plaintiff points to an event which occurred on December
23, 1993, less than a week after he was reinstated. On
that date, plaintiff, a co-worker, Frank Bertchsci, and
Risell were together in the employee locker room.
Bertchsci got up, came over to plaintiff, made a fist,
and told plaintiff to leave. Plaintiff claims that
Bertchsci grabbed him, threw him against the lockers, and
screamed that he would beat plaintiff badly. According to
plaintiff, all of this occurred in Risell's presence, and
with Risell's tacit approval. Plaintiff reported this
incident to company officials, but no action was taken.
More than a year later, on January 22, 1995, plaintiff alleges
that Bertchsci again threatened to physically harm plaintiff.
Bertchsci, while controlling a forklift, blocked plaintiff's
movement by dropping his cargo on the steps where plaintiff was
working. Bertchsci told plaintiff that Bertchsci would "kick
[plaintiff's] ass." Bob Taylor, a supervisor, was present
for this incident, and told plaintiff and Bertchsci that
if they did not stop, Taylor would fire them both.
Bertchsci did not stop, though, yelling to plaintiff,
"Everyone knows you're a faggot," three times, followed
by, "Everyone knows you are as gay as a three dollar
bill," and, "Everyone knows you take it up the ass,"
three times each. Later that day, Bertchsci called
plaintiff a "sissy" (the "January 22 statements").
Plaintiff reported the January 22 statements to Fran
Smith, defendant's production manager supervisor.
However, plaintiff claims that no action was taken.
Plaintiff also avers that he suffered a number of adverse
employment actions in the wake of his winning the arbitration
hearing and the January 22 statements. On January 27,
1995, Risell scheduled plaintiff for a transfer to an
undesirable night shift. When plaintiff complained to
Risell about this change in schedule, Risell allegedly
told plaintiff that he had the "power to drop the charges
and end this."
Plaintiff claims that Risell singled him out for
enforcement of the rules. For instance, plaintiff states
that Risell wrote him up for wearing an out-of-date
version of the official uniform, an action which,
according to plaintiff, Risell did not take with any
other employee. Plaintiff contends that other employees
often were, in a variety of ways, out of uniform, yet
Risell did not discipline these other employees. However,
according to plaintiff, Risell wrote plaintiff up for
minor infractions of the dress code, such as having two
buttons on his shirt unbuttoned. Plaintiff also alleges
that Risell disciplined him for not wearing proper safety
glasses, when other employees were not disciplined for
the same infraction. Finally, plaintiff says that Risell
would stand and watch plaintiff work, but would not do
the same for other employees.
Plaintiff asserts that this unfair treatment that he
suffered came not only from Risell, but also from other
supervisors. He reports that on one occasion, Gene
Keller, defendant's director of warehousing, stood by his
workplace and yelled at him as he worked. As a result of
this episode, plaintiff went to the hospital, complaining
that he was suffering a nervous breakdown.
Plaintiff also claims that he was always watched more
closely than other employees. For example, plaintiff
states that if he arrived at work even two minutes late,
his salary was docked, and that other employees were not
subjected to the same scrutiny. Plaintiff also states
that, although he was written up by a supervisor for
having a newspaper on the factory floor, other employees
were not written up for having reading materials on the
In April, 1996, plaintiff had an accident with a forklift.
Plaintiff alleges that, because Risell expedited proceedings
before the safety board, the safety board heard the case in one
week, whereas, according to plaintiff, it ordinarily required
months. Risell asked the safety board to fire plaintiff, because
he had two accidents charged against him, and company policy
permitted dismissal in such cases. The safety board did
not do so, and instead, charged plaintiff with a
preventable accident causing $5,000 damage, which added
five points to his record.*fn1 Plaintiff filed a
grievance regarding this determination, but is unsure of
the outcome. He claims the handling of the forklift case
was contrary to defendant's practice not to report such actions.
In November, 1997, plaintiff complained both to
defendant and to Local 830 that a coworker with low
seniority had been promoted to acting foreman without
posting a position, a violation of the CBA. Upon review,
Local 830 agreed, and informed defendant that plaintiff
was entitled to the position. However, when faced with
that determination, Risell eliminated the acting foreman
position. One week later, Risell reinstated the employee
in an acting foreman position, and plaintiff again
complained. Ultimately, the position was reassigned to
Plaintiff also alleges that various graffiti containing sexual
slurs was drawn in the bathroom, singling him out for his sexual
preference. He claims that while other graffiti was routinely
removed from the bathroom at work, the graffiti targeting
plaintiff was not removed. Plaintiff states that this occurred
despite the fact that he complained to Larry Norvell, the Vice
President of Human resources. Finally, plaintiff contends that
various members of management would follow him around at work,
regardless of whether he was going from one job to another, or
just to the bathroom.
As a result of the harassment he faced at work,
plaintiff says he suffered from, and continues to suffer
from, depression, stomach, and intestinal disorders. He
went to see a psychologist, Edward Dougherty, for the
depression. After interviewing plaintiff, Dr. Dougherty
found that plaintiff was suffering from post traumatic
stress disorder related to his experience at Coca Cola.
Dr. Dougherty prescribed continuing psychological and/or
psychiatric care for plaintiff, including individual
therapy sessions twice a week.
II. PROCEDURAL HISTORY
Plaintiff filed a pro se Complaint on January 21, 1998. This
Complaint alleged violations of Title VII of the Civil Rights Act
of 1965, 42 U.S.C.A. 2000e-2000e-17 ("Title VII") and the
Pennsylvania Crimes Code. Plaintiff, through counsel, filed an
Amended Complaint on June 30, 1998, alleging, inter alia,
violations of Title VII and a state law claim for intentional
infliction of emotional distress. The Amended Complaint named not
only defendant, but also a number of defendant's individual
employees. On July 22, 1998, defendant filed a Motion to Dismiss
All Claims in the Amended Complaint. In an Order dated November
19, 1998, this Court granted defendant's motion with respect to
all of the individual defendants named in plaintiff's claims, and
denied the motion with respect to defendant.
On June 24, 1999, defendant filed a Motion for Summary Judgment.
On July 19, 1999, plaintiff filed a Memorandum of Law Contra the
Motion for Summary Judgment. On August 16, 1999, defendant filed a
Reply Memorandum to the Plaintiff's Motion of Opposition. On
January 5, 2000, defendant filed a Motion for Leave to Supplement
Defendant's Motion for Summary Judgment. On January 19, 2000,
plaintiff filed a Reply to Supplemental Filing for Summary
Judgment by the Defendant, Philadelphia Coca Cola Bottling
Company. In an Order dated January 31, 2000, this Court granted
defendant's motion for leave to supplement the motion for summary
III. STANDARD OF REVIEW
"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 a judgment as a matter of law [,]"
summary judgment shall be granted. Fed.R.Civ.P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The
Supreme Court has explained that Rule 56(c) requires "the
threshold inquiry of determining whether there is the need for a
trial — whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party."
Anderson v. Liberty Lobby, Inc.; 477 U.S. 242, 250 (1986).
Therefore, "a motion for summary judgment must be granted unless
the party opposing the motion can adduce evidence which, when
considered in light of that party's burden of proof at trial,
could be the basis for a jury finding in that party's favor." J.E.
Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.
1987) (citing Anderson and Celotex Corp.).
In considering a motion for summary judgment, the evidence must be
considered in the light most favorable to the non-moving party.
Adickes v. S.H. Kress and Co., 398 U.S. 144, 159, 90 S.Ct. 1598,
26 L.Ed.2D 142
(1970) (quoting United States v. Diebold, 369 U.S. 654, 655
(1962). However, the party opposing summary judgment "must do
more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Therefore, "[i]f the
evidence [offered by the non-moving party] is merely colorable
or is not significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50 (citations omitted). On the other
hand, if reasonable minds can differ as to the import of the
proffered evidence that speaks to an issue of material fact, summary
judgment should not be granted.
A. Count I — Plaintiff's Title VII claim
Plaintiff brings his sexual discrimination action under Title VII
of the Civil Rights Act of 1964. See 42 U.S.C.A. 2000e et seq.
(West Supp. 1999). Defendant argues that plaintiff's Title VII
claim is appropriate one summary judgment, because plaintiff has
not made out a prima facie case of discrimination. Specifically,
defendant argues that plaintiff has not shown that he suffered
discrimination on the basis of a protected characteristic.
Although plaintiff claims he was discriminated against because of
sex, defendant argues that any discrimination suffered by
plaintiff was discrimination based on sexual orientation, a
non-protected class under Title VII. The Court concludes that any
discrimination that plaintiff suffered was based on his sexual
orientation, not his sex, and, therefore, defendant's motion for
summary judgment must be granted as to Count I of the Amended
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) the
Supreme Court announced a basic framework for courts to follow in
considering summary judgment motions under Title VII. "The
complainant in a Title VII trial must carry the initial burden
under the statute of establishing a prima facie case of . . .
discrimination." Although the complaint in McDonnell Douglas dealt
with a claim based on failure to hire, the Court noted that the
"facts necessarily will vary in Title VII cases, and the
specification above of the prima facie proof required from
respondent is not necessarily applicable in every respect to
differing factual situations." McDonnell Douglas, 411 U.S. at 802,
n. 13. When presented with a subsequent Title VII claim, the
Supreme Court stated that the central focus of the inquiry in a
case such as this is always whether the employer is treating some
people less favorably than others because of their race, color,
religion, sex, or national origin. . . . A prima facie case under
McDonnell Douglas raises an inference of discrimination only because
we presume these acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1977).
In this case, plaintiff claims defendant created a hostile work
environment on the basis of sex. "When the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment,
Title VII is violated." Oncale v. Sundowner Offshore Services, 118
S.Ct. 998, 1001 (1998). In order to demonstrate employer liability
for a hostile environment based on sex created by a co-worker,
plaintiff must demonstrate that: (1) the employee belongs to a
protected class; (2) the employee was subject to harassment, that
is, unwelcome sexual advances, requests for sexual favors, or
other verbal or physical conduct of a sexual nature; (3) the
harassment was based
on sex; (4) the harassment affected a term, condition, or privilege
of employment, becoming so severe and pervasive as to create a
hostile work environment; and, (5) the employer knew or should
have known of the charged sexual harassment and failed unreasonably
to take appropriate corrective action. See Fenton v. HiSan,
174 F.3d 827, 829-30 (6th Cir. 1999); Henson v. City of Dundee,
682 F.2d 897, 903 (11th Cir. 1982); Hall v. Gus Constr. Co.,
842 F.2d 1010, 1013 (8th Cir. 1988); Swentek v. US Air,
830 F.2d 552, 557 (4th Cir. 1987). Here, the plaintiff fails
this test, because he cannot show that the harassment complained
of was based on sex, as is required under Title VII.
In Oncale, the Supreme Court had the opportunity to elaborate on
the types of Title VII claims that can be "based on sex." In
Oncale, a male employee on an oil-drilling platform was subjected
to sex-related taunts, forcible sexual actions against him, and
physical assaults of a sexual nature, all by male co-workers. The
Fifth Circuit held that the plaintiff in Oncale had not alleged
harassment based on sex, because Title VII did not recognize
harassment by one male against another male. See Oncale v.
Sundowner Offshore Services, 83 F.3d 118 (5th Cir. 1996). The
Supreme Court reversed the Fifth Circuit, holding, "Title VII
prohibits discriminat[ion] . . . because of sex in the terms or
conditions of employment. Our holding that this includes sexual
harassment must extend to sexual harassment of any kind that meets
the statutory requirements." Oncale, 118 S.Ct. at 1002. The Court
also stated that "harassing conduct need not be motivated by
sexual desire to support an inference of discrimination on the
basis of sex." Id. at 1002.
However, the Court cautioned against extending the reach of Title
VII too far, stating that "Title VII does not prohibit all verbal
or physical harassment in the workplace; it is directed only at
discriminat[ion] . . . because of . . . sex." Id. The Court added that
no matter what the plaintiff's theory, "he or she must always
prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted
discriminat[ion] . . . because of . . . sex." Id. It is against this
backdrop that this Court must determine whether the plaintiff has
provided evidence that he has been harassed on the basis of sex.
One issue that the Court in Oncale did not address is whether
discrimination on the basis of sexual orientation could constitute
discrimination on the basis of sex for the purposes of Title VII.
However, lower courts that have addressed this issue have
consistently held that discrimination on the basis of sexual
orientation is not discrimination on the basis of sex under Title
VII. Typically, the question of whether a plaintiff could allege a
claim for discrimination based on sex turns on a court's
interpretation of the word "sex" in Title VII. "`It is a maxim of
statutory construction that, unless otherwise defined, words
should be given their ordinary common meaning.'" See Dillon v.
Frank, No. 90-2290, 1992 WL 5436, at *4, (6th Cir. January 15,
1992) (quoting Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th
In order to determine the ordinary and common meaning of the word
"sex," the Court turns to a dictionary definition. See, e.g.,
Sutton v. United Air Lines, 119 S.Ct. 2139, 2150 (1999). The New
Shorter Oxford English Dictionary lists multiple definitions for
A. n. 1. Either of the two main divisions (male and female) into
which many organisms are placed on the basis of their
reproductive functions or capacities. . . .
4. The difference between male and female, esp. in
humans. . . .
B. adj. Of or pertaining to sex or sexual activity;
arising from a difference or consciousness of sex.
2 New Shorter Oxford English Dictionary, 2801 (Lesley
Brown, ed., Thumb Index ed. 1993).
The dictionary notes that the third definition above is
essentially synonymous with the word "sexual." See id.
Applying the aforementioned principle of statutory interpretation,
the Court holds that Congress intended the word "sex" in Title VII
to refer to the first two definitions noted above — distinguishing
between male and female — rather than the third — referring to
sexual activity. As the Sixth Circuit noted in Dillon, one can
find this intent in "the context in which [the word "sex"] was
placed [in the statute], along with either immutable
characteristics (race, color, national origin) and a
characteristic so deeply rooted for most that it is almost
immutable (religion)." Dillon, supra., at *4. Similarly, the
Second Circuit has noted that "the other categories afforded
protection under Title VII refer to a person's status as a member
of a particular race, color, religion or nationality. `Sex,' when
read in this context, logically could only refer to membership in
a class delineated by gender, rather than sexual activity
regardless of gender." DeCintio v. Westchester County Medical
Center, 807 F.2d 304, 306 (2d Cir. 1986). It seems clear from the
context of the statute that Congress intended the word "sex" in
Title VII to refer to biological distinctions rather than to
sexual activity or consciousness of sex.
Two cases in this Court, and one in the District of New Jersey,
all decided before Oncale, have discussed the distinction between
discrimination on the basis of sexual orientation and
discrimination on the basis of sex. In Swage v. The Inn
Philadelphia and Creative Remodeling, Judge Shapiro of this Court
noted that the "appeals courts [which] have considered whether
Title VII prohibits conduct based on an employee's sexual
orientation agree that it does not." No. Civ. A. 96-2380, 1996 WL
368316, at *3 (E.D.Pa. June 21, 1996). In Hicks v. Arthur, Judge
Joyner of this Court held that a complaint was flawed where it
included "a claim of discrimination based on sexual orientation
under Title VII although [sexual orientation] is not a protected
class [under Title VII]." 891 F. Supp. 213, 215 (E.D.Pa. 1995).
Finally, most recently, in the District of New Jersey, a court
noted that sexual harassment based on sexual orientation "it is
clear, would not be actionable under Title VII." Caldwell v. KFC
Corp., 958 F. Supp. 962, 967, n. 2 (D.N.J. 1997).
Since Oncale, a number of other courts around the country have had
the opportunity to consider whether Oncale affected the analysis
of sexual orientation as a protected class. Those courts to
consider the issue have consistently held that sexual orientation
is not a protected class, even in the wake of Oncale. See, e.g.,
Klein v. McGowan, 36 F. Supp.2d 885, 889 (D.Minn. 1999)
("However, it is well settled that Title VII does not recognize a
cause of action for discrimination based on the victim's sex to be
actionable."); Metzger v. Compass Group U.S.A., No. Civ. A.
98-2386-GTV, 1999 WL 714416, at *2 (D.Kan. September 1, 1999)
("Harassment based solely on a person's sexual preference or
orientation is not protected by Title VII."); Higgins v. New
Balance Athletic Shoe, 21 F. Supp.2d 66, 73 (D.Me. 1998) (Title
VII does not recognize "a cause of action for any type of
discrimination based on sexual orientation.").
In Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450(LAP),
1999 WL 796172 (S.D.N.Y. September 30, 1999) ("KLM"), the court
held that the Supreme Court's holding in Oncale had done nothing
to overturn those cases upholding a distinction, for the purposes
of Title VII, between discrimination based on sex and
discrimination based on sexual orientation. See id. at *12. KLM
dealt with a number of Title VII claims, including one on the
basis of sexual orientation discrimination. The court held that
"harassment based on a plaintiff's sexual orientation, as opposed
to a plaintiff's sex, is not covered by Title
VII." Id. In reaching this conclusion, the KLM court relied on
the fact that the Oncale Court confined its analysis to the
language of Title VII requiring the discrimination to be based
on sex, and "left undisturbed that line of cases finding that
discrimination based on sexual orientation is not discrimination
based on sex and thus does not state a claim under Title VII."
Similarly, in Higgins, a plaintiff argued that the discrimination
that he suffered based on his sexual orientation constituted
discrimination on the basis of sex. The court in Higgins
considered Title VII's coverage of discrimination on the basis of
sex, as it has been defined by other courts, on the one hand, and
discrimination on the basis of "gender" — a concept in which
"because of sex" would encompass "personality features and
socio-sexual roles typically associated with `masculinity' or
`femininity,'" on the other, and rejected the gender approach. See
Higgins, 21 F. Supp.2d at 75. In holding that Title VII required
an interpretation of the word "sex" in a more traditional manner,
the Higgins court stated, "In its current form, Title VII does not
provide a remedy to persons who have experienced harassment
motivated solely by animus toward the plaintiff's sexual
This Court agrees with the above cases and holds that although the
Supreme Court's decision in Oncale has made clear that same sex
discrimination is actionable under Title VII, the decision has not
expanded the reach of Title VII to include discrimination on the
basis of sexual orientation. The Court now turns to the remaining
question — whether the behavior described by plaintiff in this case
constitutes discrimination on the basis of sex or discrimination
on the basis of sexual orientation.
In Carreno v. Local Union No. 226, International Brotherhood of
Electrical Workers, No. Civ. A. No. 89-4083-S, 1990 WL 159199
(D.Kan. September 27, 1990), a district court was presented with a
case of insults to an open homosexual similar to those in this
case.*fn2 The court in Carreno concluded that these insults were
based on sexual orientation — the fact that plaintiff was a
homosexual — rather than sex — the fact that plaintiff was a male.
See id. at *3. Such comments, the court ruled, were not within
the ambit of Title VII. See id.
Like the court in Carreno, this Court concludes that plaintiff's
claim of sexual harassment under Title VII is based upon sexual
orientation discrimination. In Oncale, the Court stated that the
critical issue in evaluating whether harassment has occurred on
the basis of sex is "`whether members of one sex are exposed to
conditions of employment to which members of the other sex are not
exposed.'" 118 S.Ct. at 1002. In this case, plaintiff points to
only three statements of a sexual nature, the January 22 comments,
and the graffiti. The January 22 comments, all involved a
co-worker telling the plaintiff, an open homosexual, "everyone
knows you're a faggot;" "everyone knows you are as gay as a three
dollar bill;" and, finally, "everyone knows you take it up the
ass." Certainly, these comments are not pleasant, and are
inappropriate. Nonetheless, they are not actionable under Title
VII, because they all are clearly targeted at the plaintiff's
sexual orientation, and not at his sex.
Similarly, the graffiti in the bathroom of which plaintiff
complains said, "Some fagget [sic] keeps pulling this away from
the wall to see some dick," followed by, "Yeah, yours," on the
wall. Again, the language and context are unpleasant, but the
graffiti is clearly aimed at sexual orientation, rather than at
plaintiff's sex. Because none of these statements indicate that
plaintiff is exposed to conditions of employment different from
members of the opposite sex, as the Oncale Court requires, this
Court grants defendant's motion for summary
judgment as to Count I of the Amended Complaint.
B. Count II — Plaintiff's intentional infliction of emotional
In Count II of his Amended Complaint, plaintiff asserts a state
law intentional infliction of emotional distress claim against
defendant. Plaintiff alleges that Coca-Cola's conduct is
sufficiently outrageous to justify such a claim. Defendant argues
that such a claim is appropriate for summary judgment because the
claim is preempted by federal labor law, specifically 7-8 of the
National Labor Relations Act ("NLRA")*fn3 and 301 of the
Taft-Hartley Act. Defendant also argues that the claim is
time-barred under the applicable statute of limitations, and that
the conduct in question does not rise to the level of
outrageousness required by Pennsylvania law.
Plaintiff responds that his claim is not preempted by federal
labor law, because Title VII is not preempted by federal labor
law.*fn4 Plaintiff also argues that the claim is not time-barred,
because plaintiff has alleged some incidents that occurred within
the two-year statute of limitations, and that, under the
continuing violation exception to the statute of limitations, all
of defendant's conduct is relevant. Finally, plaintiff argues that
defendant's conduct does rise to the level of outrageousness
required by Pennsylvania law.
Defendant has presented evidence that all of plaintiff's claims
are based on retaliation for conduct protected under the NLRA and
are therefore preempted. Plaintiff argues that some of his claims
are based on retaliation and that others are based on sexual
discrimination (or, as the Court has found, discrimination related
to sexual orientation). Because the Court declines to exercise
supplemental jurisdiction over the Count II of the Amended
Complaint, pursuant to 28 U.S.C. § 1367(c)(3), it need not decide
this issue. The Court will, however, comment on the preemption
In San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959), the Supreme Court considered a claim that the NLRA
preempted a California law. The Court held that, in passing the
NLRA, Congress intended to "confide primary interpretation and
application of its rules to a specific and specially constituted
tribunal and prescribed a particular procedure for investigation,
complaint and notice, and hearing and decision, including judicial
relief pending a final administrative order." Id. The specific and
specially constituted tribunal to which the Garmon Court was
referring is the National Labor Relations Board ("NLRB").
Retaliation for the exercise of a protected right under the NLRA
is within the exclusive jurisdiction of the NLRB. See New Orleans
Cold Storage & Warehouse, 326 N.L.R.B. No. 161. To prevail on a
retaliation claim, plaintiff must prove that the exercise of a
protected right was a substantial or motivating factor in
defendant's alleged retaliatory
conduct. See Mt. Healthy City School Dist. Bd. Of Educ. V. Doyle,
429 U.S. 274, 287 (1977). Although Mt. Healthy dealt with a
constitutional claim of retaliation, it has been applied to
claims under the NLRA as well. See Webster v. Dept. of the Army,
911 F.2d 679, 696 (Fed. Cir. 1990) (citing National Labor
Relations Bd. V. Transportation Management Corp., 462 U.S. 393
In his Amended Complaint, plaintiff alleges that a coworker made a
harassment charge against plaintiff "solely to punish Plaintiff
for attempting to enforce seniority and job posting rules."
Amended Complaint, 33. During his deposition, plaintiff repeatedly
stated that the disparate disciplinary treatment that he faced
resulted from his asserting his rights under the CBA. However,
plaintiff does not mention a claim for retaliation in his Amended
Complaint, and it is unclear exactly which of defendant's actions
plaintiff perceives to have been in retaliation for exercising his
rights under the CBA, and which actions he perceives to have been
aimed at his sexual orientation. The Court also notes that there
is a paucity of evidence on the claimed link between the
harassment and the exercise of a protected right.
Under 28 U.S.C. § 1367 (" 1367"), a district court may decline to
exercise its supplemental jurisdiction over state law claims if
"the district court has dismissed all claims over which it has
original jurisdiction. . . ." 28 U.S.C.A. 1367(c)(3) (West Supp.
1999). In interpreting this provision, the Third Circuit has held
that "where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must
decline to decide the pendant state claims unless considerations
of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so." Borough of
West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
The Court concludes that no affirmative justification to retain
jurisdiction over the state law claim is present in this case.
Because the Court is granting summary judgment as to the only
federal claim, the Court declines to exercise supplemental
jurisdiction over plaintiff's state law claim of intentional
infliction of emotional distress.
The Court concludes that plaintiff's Title VII claim is premised
on sexual orientation discrimination. Because sexual orientation
is not a protected class under Title VII, the Court grants
defendant's Motion for Summary Judgment as to Count I, and enters
judgment in favor of defendant and against plaintiff on Count I of
the Amended Complaint. The Court declines to exercise supplemental
jurisdiction over plaintiff's state law claim for intentional
infliction of emotional distress, and therefore dismisses that
claim without prejudice.
BY THE COURT: