Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2001

Bibby v. Coca Cola Bottling
Precedential or Non-Precedential:

Docket 00-1261




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Filed August 1, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1261

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 at Coca-Cola,
Bottling Company; JOHN KOLB, JR., Individually and in
his Official Capacity as Director of Human Relations at
Coca-Cola Bottling Company; J. BRUCE LLEWELLYN,
Individually, and in his Official capacity as Chief
Executive Officer at Coca-Cola Bottling Company; GENE
KELLER, Individually, and in his Official Capacity as
Warehouse Manager Supervisor

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil No. 98-cv-00287
District Judge: The Honorable Jan E. DuBois

Argued: April 26, 2001

Before: ROTH, BARRY, ALDISERT, Circuit Judges
(Opinion Filed: August 1, 2001)

       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

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
_________________________________________________________________

1. While Bibby claimed that he was perceived by his employer and his
co-workers as having HIV/AIDS, he did not bring a claim for
discrimination on the basis of perceived disability under the Americans
with Disabilities Act. 42 U.S.C. S 12101 et seq.

                                  2
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
_________________________________________________________________

2. In Bibby's brief to this Court, he claims that Berthcsi "regularly
engaged in harassment of a sexual nature with violent features against
[Bibby]." The brief offers no citation to support this claim, and the
record
reveals only the December 1993 and January 1995 incidents.

3. We do not usually reproduce such gratuitously crude language in our
opinions. Here, however, the essential dispute concerns whether the

                               3
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
_________________________________________________________________

language and actions of Bibby's co-workers and supervisors constituted
actionable sexual harassment, which requires "[c]onduct that is . . .
severe or pervasive enough to create an objectively hostile or abusive
work environment -- an environment that a reasonable person would
find hostile or abusive . . . ." Oncale v. Sundowner Offshore Services,
Inc.,

, 81 (1998), (quoting Harris v. Forklift Systems, Inc., 

, 21 (1993)). To indulge in delicacy in light of what the Court
described
as a "crucial" requirement would obscure the issue before this Court. See
Simonton v. Runyon, 

, 35 (2d Cir. 2000) ("we think it is
important both to acknowledge the appalling persecution [the plaintiff]
allegedly endured and to identify the precise nature of the abuse so as
to distinguish this case from future cases as they arise").

                               4
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., 

, 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.
_________________________________________________________________

4. Bibby has not appealed the dismissal of these claims.

                               5
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 , 

, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe,
Inc., 

, 259 (1st Cir. 1999); Williamson v. A.G.
Edwards & Sons, Inc., 

, 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, 

, 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, 

, 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., 

, 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
Circuit suggested that same-sex harassment was always
actionable as long as the harassment was sexual in nature,
regardless of the sex, sexual orientation, or motivation of
the harasser and regardless of the sex of the victim. Doe v.
City of Belleville, 

, 576 (7th Cir. 1997) (proof
of a desire to discriminate against one gender is not

                               6
necessary "when the harassment has explicit sexual
overtones").

In Oncale v. Sundowner Offshore Services, Inc. , 

(1998), the Supreme Court unanimously held that Title
VII does provide a cause of action for same-sex sexual
harassment. 

at 79. In Oncale, the Court
reviewed a Fifth Circuit decision which held that, as a
matter of law, Title VII categorically barred any claim for
same-sex sexual harassment. 

The Court reversed.
Title VII, it observed, protects men as well as women and
just as there can be no absolute presumption that a person
of one race would not discriminate against another person
of the same race, there can be no absolute presumption
that a person of one gender would not discriminate against
another person of the same gender. 

The Court
reasoned that it is not the sex of the harasser or the victim
that is important to a sexual harassment claim, but, rather,
what is important is that the victim "prove that the conduct
at issue was not merely tinged with offensive sexual
connotations, but actually constituted `discriminat[ion] . . .
because of . . . sex.' " 

(emphasis, ellipses, and
brackets in original).

The question of how to prove that same-sex harassment
is because of sex is not an easy one to answer. As the
Supreme Court noted in Oncale, when the harasser and
victim are of the opposite sex, there is a reasonable
inference that the harasser is acting because of the victim's
sex. 

Thus, when a heterosexual man makes
implicit or explicit proposals of sexual activity to a woman
co-worker or subordinate, it is easy to conclude or at least
infer that the behavior is motivated by her sex. Similarly, if
a man is aggressively rude to a woman, disparaging her or
sabotaging her work, it is possible to infer that he is acting
out of a general hostility to the presence of women in the
workplace. These inferences are not always so clear when
the harasser and victim are of the same sex.

There are several situations in which same-sex
harassment can be seen as discrimination because of sex.
The first is where there is evidence that the harasser
sexually desires the victim. 

Thus, when a gay or
lesbian supervisor treats a same-sex subordinate in a way

                               7
that is sexually charged, it is reasonable to infer that the
harasser acts as he or she does because of the victim's sex.

Same-sex harassment might also be found where there is
no sexual attraction but where the harasser displays
hostility to the presence of a particular sex in the
workplace. 

same-sex sexual harassment
could be found "if a female victim is harassed in such sex-
specific and derogatory terms by another woman as to
make it clear that the harasser is motivated by general
hostility to the presence of women in the workplace"). For
example, a woman chief executive officer of an airline might
believe that women should not be pilots and might treat
women pilots with hostility amounting to harassment.
Similarly, a male doctor might believe that men should not
be employed as nurses, leading him to make harassing
statements to a male nurse with whom he works. In each
of these hypothetical situations, it would be easy to
conclude that the harassment was caused by a general
hostility to the presence of one sex in the workplace or in
a particular work function, and, therefore, amounted to
discrimination because of sex.

Further, although it is less clear, a plaintiff may be able
to prove that same-sex harassment was discrimination
because of sex by presenting evidence that the harasser's
conduct was motivated by a belief that the victim did not
conform to the stereotypes of his or her gender. 

(discussing this theory but declining to
rule on it because the plaintiff had not raised it before the
District Court); 

(also declining
to rule on this theory because it had been waived by the
plaintiff); City of 

(holding that
where co-workers verbally and physically harassed a young
man because he wore an earring, repeatedly asked him
whether he was a girl or a boy, and threatened to assault
him sexually, he had presented sufficient evidence to
support a conclusion that the harassment amounted to
discrimination because of sex).5
_________________________________________________________________

5. The judgment in City of Belleville was vacated and the case remanded
by the Supreme Court "for further consideration in light of Oncale. . . ."

. It would seem, however, that the gender stereotypes

                               8
The gender stereotypes method for proving same-sex
sexual harassment is based on Price Waterhouse v.
Hopkins, 

(1989), a case in which the Supreme
Court reviewed the sex discrimination claim of a woman
who had been denied partnership in an accounting firm at
least in part on the basis that she was "macho,"
"overcompensated for being a woman," needed"a course in
charm school," was "masculine," and was"a lady using foul
language." 

A partner advised the plaintiff that if
she wished to improve her chances of earning partnership,
she should "walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled,
and wear jewelry." 

of the Court agreed that
"[i]n the specific context of sex stereotyping, 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." 

The Court noted that "we are beyond
_________________________________________________________________

holding of City of Belleville was not disturbed. In deciding the case, the
Seventh Circuit relied on alternative holdings. The first was that where
the harassment was sexual in nature, it was not necessary for the
plaintiff to prove that it was motivated by the victim's gender. City of

. The second was that if proof of sex
discrimination was necessary, the evidence that the victim's harassers
sought to punish him for failing to live up to expected gender stereotypes
would be sufficient to prove such discrimination. 

The first
holding was clearly wrong in light of Oncale's requirement that all sexual
harassment plaintiffs must prove that the harassment was
discrimination because of sex. There is nothing in Oncale, however, that
would call into question the second holding. As we discuss above, the
gender stereotypes argument is squarely based on Price Waterhouse v.
Hopkins, 

(1989). Absent an explicit statement from the
Supreme Court that it is turning its back on Price Waterhouse, there is
no reason to believe that the remand in City of Belleville was intended to
call its gender stereotypes holding into question. City of Belleville
settled
before there was a decision on remand, so it is not possible to know if
the Seventh Circuit would have continued to apply the gender
stereotypes holding. District courts in that Circuit, however, have
continued to treat that holding as binding on them. See, e.g., Jones v.
Pacific Rail Services, No. 00 C 5776, 

, *2 (N.D. Ill.
February 14, 2001); Spearman v. Ford Motor Co. , No. 98 C 0452, 

, *6 (N.D. Ill. September 9, 1999); EEOC v. Trugreen Limited
Partnership, 

, 989-90 (W.D.Wis. 1999).

                               9
the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype
associated with their group, for `[i]n forbidding employers to
discriminate against individuals because of their sex,
Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes.' " 

(quoting Los Angeles Dept. of Water
and Power v. Manhart, 

, 707 n.13 (1978))
(some internal quotation marks omitted). Neither of the two
concurring opinions in Price Waterhouse disagreed.

Relying on Price Waterhouse, and as we noted above, the
Seventh Circuit held that where evidence indicated that the
harassment of a sixteen-year old young man was motivated
by his co-workers' belief that because he wore an earring he
was not sufficiently masculine, there was sufficient
evidence to support a finding that the harassment
amounted to discrimination because of sex. City of

("a man who is harassed because
his voice is soft, his physique is slight, his hair is long, or
because in some other respect he exhibits his masculinity
in a way that does not meet his coworkers' idea of how men
are to appear and behave, is harassed `because of ' his
sex").

Thus, there are at least three ways by which a plaintiff
alleging same-sex sexual harassment might demonstrate
that the harassment amounted to discrimination because of
sex -- the harasser was motivated by sexual desire, the
harasser was expressing a general hostility to the presence
of one sex in the workplace, or the harasser was acting to
punish the victim's noncompliance with gender stereotypes.
Based on the facts of a particular case and the creativity of
the parties, other ways in which to prove that harassment
occurred because of sex may be available. See 

(noting that "[a] same-sex harassment
plaintiff may also, of course, offer direct comparative
evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace"); Shepherd v. Slater
Steels Corp., 

, 1009 (7th Cir. 1999) ("we
discern nothing in the Supreme Court's [Oncale] decision
indicating that the examples it provided were meant to be
exhaustive rather than instructive").

                               10
That having been said, however, it is clear that
"[w]hatever evidentiary route the plaintiff chooses to follow,
he or she must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but
actually constituted `discrimina[tion] . . . because of . . .
sex.' " Oncale at 81 (emphasis, ellipses, and brackets in
original). Bibby simply failed in this respect; indeed, he did
not even argue that he was being harassed because he was
a man and offered nothing that would support such a
conclusion. There was no allegation that his alleged
harassers were motivated by sexual desire, or that they
possessed any hostility to the presence of men in the
workplace or in Bibby's particular job. Moreover, he did not
claim that he was harassed because he failed to comply
with societal stereotypes of how men ought to appear or
behave or that as a man he was treated differently than
female co-workers. His claim was, pure and simple, that he
was discriminated against because of his sexual
orientation. No reasonable finder of fact could reach the
conclusion that he was discriminated against because he
was a man.6

As noted earlier, Bibby argues that in reaching this
conclusion, we will be placing an extra burden on gay and
lesbian plaintiffs bringing an action for same-sex sexual
harassment by requiring that such plaintiffs prove that
their harassers were not motivated by anti-gay animus.
Bibby is wrong. Whatever the sexual orientation of a
plaintiff bringing a same-sex sexual harassment claim, that
plaintiff is required to demonstrate that the harassment
was directed at him or her because of his or her sex. Once
such a showing has been made, the sexual orientation of
the plaintiff is irrelevant. In addition, once it has been
shown that the harassment was motivated by the victim's
sex, it is no defense that the harassment may have also
_________________________________________________________________

6. Given this conclusion, we need not reach the additional requirement
that the alleged conduct was "severe or pervasive enough to create an
objectively hostile or abusive work environment . . . ." 

(internal quotation marks omitted). We note, however, that the only
specifics Bibby has alleged are one physical assault (with no sexual
component) and one incident of serious name calling (with a sexual
component).

                               11
been partially motivated by anti-gay or anti-lesbian animus.
For example, had the plaintiff in Price Waterhouse been a
lesbian, that fact would have provided the employer with no
excuse for its decision to discriminate against her because
she failed to conform to traditional feminine stereotypes.

Harassment on the basis of sexual orientation has no
place in our society. See 

(harassment on the basis of sexual orientation "is morally
reprehensible whenever and in whatever context it occurs,
particularly in the modern workplace"); 

(harassment because of sexual orientation"is a
noxious practice, deserving of censure and opprobrium").
See also Rene v. MGM Grand Hotel, Inc., 

,
1209 (9th Cir. 2001) (quoting Higgins). Congress has not
yet seen fit, however, to provide protection against such
harassment. Because the evidence produced by Bibby--
and, indeed, his very claim -- indicated only that he was
being harassed on the basis of his sexual orientation,
rather than because of his sex, the District Court properly
determined that there was no cause of action under Title
VII.

CONCLUSION

For the foregoing reasons, we will affirm the judgment of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12