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BIBBY v. PHILADELPHIA COCA COLA BOTTLING CO.

March 2, 2000

JOHN J. BIBBY, PLAINTIFF,
V.
THE PHILADELPHIA COCA COLA BOTTLING CO., DEFENDANT.



The opinion of the court was delivered by: Jan E. Dubois, J.

ORDER & MEMORANDUM

ORDER

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.

MEMORANDUM

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).

I. BACKGROUND

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 factory floor.
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 ...

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