Kay v. Ind Blue Cross
142 F. App'x 48
3rd Cir.
2005
Check Treatment
Docket

*2 Bibby v. tion based on sexual orientation. McKEE, Before NYGAARD and 260 Bottling Company, Phila. Coca Cola Judges. Circuit (3d Cir.2001) (internal 257, 261 cita omitted). Nevertheless, we have tions OPINION of harassment suggested evidence McKEE, Judge. may illegal constitute discrimination Harry Kay prove if can appeals the district court’s Title VII a be grant favor of his harasser’s conduct was motivated employer, Independence Blue lief that the victim did not conform Cross (inter (“IBC”), Kay brought alleging gender stereotypes. in the action Id. at 262-63 omitted). theory sexual discrimination under Title of nal citations is based VII Rights analysis Act of in Price Civil U.S.C. Waterhouse (“Title VII”). § seq. Although Hopkins, 2000e et 490 U.S. S.Ct. Centre, Pa., (3d may Cir. 1. We affirm the decision of the district any appears proper 2001). court for reason that Summary judgment appropriate is record, even if the district court did not genuine issue of when the record discloses no base its decision on that rationale. See United party moving is entitled material fact and the Miller, (3d States v. judgment as a matter of law. Anderson v. 242, 247-48, 2000). Liberty Lobby, (1986). We have court’s 2. Our review of the district jurisdiction under 28 U.S.C. County judgment plenary. Doe v. (1989). There, plurality of would have affected rea- specific person the Court stated that of the same in that “[i]n stereotyping, position; respon- context of sex the existence of superior liability. Pennsyl- who acts on the or a belief that a deat Weston *3 vania, (3d Cir.2001). aggressive, woman cannot be or that she be, must not has acted the basis of Assuming arguendo gender that stereo gender.” Id. at S.Ct. 1775. typing can constitute sex discrimination Waterhouse, VII, Relying on Price under Title we must still consider “any in Enterpris stereotypical Nichols Azteca Restaurant statements within the (9th es, Inc., Cir.2001), 256 F.3d 864 held context of all of the evidence of harass ment, plaintiff impermissibly that a had been and then the evi determine whether against gen discriminated on the dence as a whole creates reasonable plaintiff der where the claimed he was inference that was discrimi against harassed because he was effeminate and Spear nated because his sex.” to stereotypes. Company, failed conform to male man v. Ford Motor Cir.2000). There, the court found that the harass these two closely gender ment at issue to was linked incidents must be the broader viewed plaintiffs by Kay. because the harassers discrimi alleged context harassment against being context, nated him for “too feminine.” When viewed this record Similarly, Kay argues clearly that the demonstrates that the harassment orientation, perceived conduct of his coworkers satisfies the ele was based on gender. ments of Title VII because it was based rather than alleged perception that he was too multiple The record contains references feminine. Kay’s In deposi- sexual orientation. his Indeed, Kay testimony, why two of the incidents that tion when asked he arguably implicated gen- (Foley) endured at mim- thought IBC his co-worker had “Well, wrist, stereotypes. photocopied flyer limp Kay responded, der icked a gay phone Kay’s maybe [Foley] for a line that was left in that was because knows gay. anyone hangs mailbox contained a line of text that that out [Butts] And corporate read: “A real man in the In gay gay.” world with the men must be addi- tion, Kay during would not come to work with stated several times ad- I guess you his ear. But will never be a proceedings ministrative addition, ‘real man’!!!!!!” In charges Pennsylvania one of he filed with the Hu- co-workers, Bennett, Commission, referring Donna to man Relations that he was replacing another who was a wa- harassed because of his sexual orientation. cooler, commented, in representative responsible ter bottle on a front He also told the Kay, glad ensuring long-term disability “I’m that there’s a real man his bene- on the floor.” that he based on sexual fits was harassed

To state a claim for harassment allegation under Title on conduct That of bias based VII based (1) workers, Kay must establish: that he orientation is consistent Kay example, suffered from intentional discrimination with the record here. For (2) gender; reports overhearing because of his that the dis- co-worker state (3) regular; you fag up crimination was “Did see that that moved on the being yesterday?” reports the discrimination af- floor He also him; just gay,” by ‘You are the same fected the discrimination told: had stated that she co-worker who (1998)). Thus, only rea- “real men” on happy there were addition, Kay complained In compels

the floor. record reading of this queer petition stating: you “If want this conduct conclusion here;” floor, stating: sign off the a note by sexual or- Kay alleges was motivated me, you faggot;” and a “Stop staring stereo- ientation bias flyer phoneline includ- which Accordingly, the district court typing. Lastly, phrase: ed the “GAY!GAY!GAY!” correctly granted in- messages received the voice IBC.4 terms, “fern,” “faggot,” cluded the and “ass Judge. (Concurring wipe.” *4 Opinion). Moreover, Donna Bennett’s refer that the District Given the fact accompanied by: ence to a “real man” was oc- gender stereotyping concluded that did gay.” Similarly, “You are case, I cur in this would have seized anonymous statement: “A real man in the upon prove gender stereotyp- a failure to corporate world would not come work ing reasoning as our this case. The line guess in his But I with ear. upon between discrimination based man’!!!!!!;” you will never be a ‘real upon and that based stereotyping at the of a bottom flier and in orientation is difficult to draw this phone line. we think it clear complained case of conduct some claim is based arguably fits within both rubrics. There- by tion that is motivated fore, I would have resolved case based Furthermore, assuming even prove that upon Kay’s failure to flier, arguendo that the “real man” discriminatory “perva- acts were workers’ Bennett’s crude comments can inter regular” sive and under the strict standard preted gender-stereotyping as by set forth Court Harris hold such we would discrimination actiona 17, 21, Systems, Forklift they only ble.3 would then constitute “the ‘sporadic language, gender- use of abusive Here, ” discriminatory con- co-workers’ jokes.’ fall short of the at best. sporadic duct was gender-stereotyping threshold needed for liability under Title New Trigg VII. See

York City Authority, Transit 2001 WL (E.D.N.Y.2001) *6 B. (quoting

868386 at Kadue,

Lindemann & D. Sexual Harass in Employment

ment Law 175 Raton,

quoted Faragher City Boca Bibby, (discussing knowingly 3. See 260 F.3d at 263 n. 5 that no would tolerate liability stereotype theory as claims he had the work environment Belleville, upheld City However, in Doe v. to endure. our reach is limited 1997)). scope of Title VII. Absent amendment Congress, VII does not include a cause Although we affirm the of action for discrimination based sexu- judgment, emphasize the our previously preference. We have noted that al interpreted should not be to minimize the legislation "Congress repeatedly rejected has Kay's allegations. seriousness of As we stated extended title VII to cover that would have above, kay alleges nothing the conduct Bibby, at 261. sexual orientation.” hope and we would short of