Petition for Writ of Certiorari — French v. Mead Paper Corp.

ae prem Court, U.S.

ILED

MAY 16 1985

No. 84-___

ALEK AK OCH STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

LARRY FRENCH,

Petitioner,

VS.

MEAD PAPER CORPORATION

FORMS PAPER DIVISION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

ANDREW J. RUZICHO

3040 Riverside Dr.

Suite 102

Columbus, Ohio 43221

(614) 486-0407

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Whether a male employee has the same protections under Title

Vil as a female employee in a case involving alleged sexual harassment.

2. Whether the mere allegation by a female employee of sexual

harassment against a male employee constitutes a legitimate, non-dis-

criminatory reason under Title VII to insulate an employer against

liability in 2 sex discrimination case.

PARTIES TO THE PROCEEDING

The sole parties to the proceeding are the set forth in the caption.

ii

TABLE OF CONTENTS

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STATUTORY

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REASONS FOR GRANTING THE WRIT ...........

THE DECISION OF THE SIXTH CIRCUIT DENIES AND

HAS THE EFFECT OF DENYING THE PETITIONER

HIS TITLE Vii PROTECTIONS AGAINST SEX DIS-

CRIMINATION SOLELY BECAUSE HE IS A MALE.

SUCH A DECISION IS INCONSISTENT WITH THE DE-

GC WOUND oe ho ce wn ee

ZEEE EC EERATER PECL UCC

TABLE OF AUTHORITIES

Cases Page

Connecticut v. Teal, 457 U.S. 440 (1982) ......... 5

EEOC v. Brown & Root, Inc. 688 F.2d 338

CS SUE ic ee RS eee eee eee ree 5

Lincoln v. Board of Regents of Univ. System,

697 F.2d 920 (CA 11 1983); cert. denied, 104S. Ct. 97 (1983). . 5

McDonald v. Santa Fe Trail Transportation Co.,

Oe? We BIR Ee PD 6 oN EE ae 5

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ..... 5

FEDERAL STATUTE AND REGULATION

Title VII, Civil Rights Act of 1964, 42 U.S.C.

See OG Ce a a 0G ee 2

Equal Employment Guidelines on Sexual Harassment

BPP CAE 8 6 ii ka a Pe eee 5

No. 84-__

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

LARRY FRENCH,

Petitioner,

vs.

MEAD PAPER CORPORATION

FORMS PAPER DIVISION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Petitioner, Larry French, prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the Sixth

Circuit, which affirmed and adopted the opinion of the United States

District Court, Southern District of Ohio.

OPINIONS BELOW

The Sixth Circuit’s per curiam opinion, No. 83-3747 (6th Cir.,

February 15, 1985) is set forth in the appendix, la. The Sixth Circuit

adopted the opinion of the United States District Court, Southern Dis-

trict of Ohio, set forth in Appendix 7 - 20.

tN

JURISDICTION

The judgment of the Court of Appeals was entered on February 15,

1985. This petition was filed within ninety days thereafter. This Court's

jurisdiction is envoked under 28 U.S.C. § 1254 (1).

FEDERAL STATUTE AND REGULATION

The federal statute involved in this case is Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000 (e), et. seq. The Equal Employ-

ment Opportunity Commission’s Guidelines on Sexual Harassment,

29 CFR § 1604.11 are also involved in the case.

STATEMENT OF THE CASE

The petitioner, Larry French, was an employee with the respondent,

the Mead Corporation, for almost twenty-four years; he was a first line

supervisor for approximately seven years and had received good to

excellent job evaluations as a supervisor during that period. He never

received any written or verbal job reprimands during his emplc yment.

The petitioner’s responsibilities included assigning “extra crew” em-

pioyees to temporary job positions within his department; extra crew

employees fill temporary jobs for employees who are on sick leave or

vacation, or if a temporary need exists for additional employees. Such

assignments to the various departments are made in the personnel office

and are made on the basis of date of hire semority; once the extra crew

employee reaches the department, he is assigned on the basis of need

within the discretion of the tour supervisor and not necessarily on the

basis of seniority. The normal procedure for assignment of all extra

crew employees was according to a schedule prepared by the departmen-

tal head. The tour supervisor would make asignments based on the

schedule.

During the week of June 2, 1980, Anna Marie Bales, an extra crew

employee, was assigned to the petitioner’s department and assigned

the job of “Miscellaneous”, a job classification to which Ms. Bales

could be assigned to any position in the department. The departmental

head made the assignment for Ms. Bales. On June 2, Ms. Bales did

not report for work; on June 3, the petitioner had an off day and did

not work; the substitute tour supervisor assigned Ms. Bales to a “rewin-

der helper” position. On June 4, the petitioner assigned a regular and

more senior employee to the rewinder helper position, as permanent

employees had preference over extra crew employees. Ms. Bales com-

plained to the petitioner that she wanted the “rewinder helper” job.

The petitioner told her that he would assign her to a position as soon

as he finished his paperwork, which was his customary and usua!

practice. Ms. Bales became upset, left the department and complained

to the personnel manager, Linda Oney, that she should have had that

job. She also told Oney that the petitioner had “touched her” approx-

imately one year earlier, in May 1979. Ms. Oney took the complaint

and sent her back to the department where the department head assigned

her to “sweeping up”. Ms. Bales had a history of complaining about

her job assignments to the departmental head.

Nothing else was done by the company on Ms. Bales’ complaint,

except that Ms. Bales was re-assigned to another department. The EEO

officer for the City of Chillicothe, Ohio received a complaint from

Ms. Bales’ husband about alleged sexual harassment, and although

having no jurisdiction over the respondent, set up a meeting to transmit

the complaint. As a result of the meeting, the company proceeded to

conduct an investigation concerning the Bales’ complaint, but did not

inform the petitioner. Ms. Bales was again interviewed, and gave three

of her friends as persons who could support her allegation. The three

women were interviewed and each gave several incidents where the

petitioner allegedly “touched them” or made sexual oriented statements

to them; none of the alleged incidents were “timely”, having occurred

over a period of years. None of the other women, however, ever

complained about alleged sexual harassment nor did they testify that

such statements were “unwelcomed”. All the women testified at trial

that they were able to perform their jobs in a satisfactory manner and

two of the three women testified that they “bid” or asked for the

petitioner’s tour after the alleged incidents occurred.

The petitioner had two meetings with respondent's officials after the

investigation commenced. The first time he was notified was at a June

18, 1980 meeting when he was told of the Bales’ “assignment” com-

plaint, and another incident, none of which directly involved any alleged

sexual harassment. The next meeting occurred on June 29, 1980, when

he was suspended. He realized for the first time that alleged sexual

harassment was an issue, and requested the respondent to conduct an

investigation to include several female workers on his tour that had

worked for him for several years. The respondent “promised” to conduct

a full investigation. The respondent, however, refused to interview

such witnesses because they felt that the females would “support” the

petitioner.

On July 1, 1980, the petitioner was terminated for sexual harassment.

The respondent terminated the petitioner because “the federal govern-

ment would not settle for less than a termination”. The termination

violated the respondent's own policy on discipline by refusing to con-

duct a full investigation, and failure to give the petitioner a “full

opportunity” to rebut the allegations. The respondent's official, respon-

sible for the recommendation for the termination, testified at trial that

based on the statements of the females that it was not necessary to

obtain any rebuttal from the petitioner. The respondent specifically

terminated the petitioner for sexual harassment based on the Equal

Employment Opportunity Commission's “then” proposed guidelines

on sexual harassment. The respondent has never had any policy on

sexual harassment or did it adhere to the EEOC’s guidelines on sexual

harassment.

At trial, four, longtime, female employees testified that the petitioner

never engaged in any activity that they would regard as “sexual harass-

ment”. After the petitioner’s termination, approximately thirty (30)

employees, male and female, signed a petition requesting the reinstate-

ment of the petitioner because he was unjustly terminated, and submit-

ted it to the respondent’s officials.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE SIXTH CIRCUIT DENIES AND HAS

THE EFFECT OF DENYING THE PETITIONER HIS TITLE

VII PROTECTIONS AGAINST SEX DISCRIMINATION SOL-

ELY BECAUSE HE IS A MALE. SUCH A DECISION IS INCON-

SISTENT WITH THE DECISIONS OF THIS COURT.

The employer, with the approval of the Courts below, terminated a

long time male employee based on the mere allegation of a female

employee that the male employee was guilty of sexual harassment.

The evidence indicated that the female employee made the vindictive

allegation because she did not receive a job assignment she wanted,

but which she was not entitled. The alleged “touching” incident occur-

red over one year prior to the allegation.

The respondent terminated the petitioner solely based upon the state-

ments of the females, and the employer felt that it was not necessary

to advise the male employee of the allegations against him or obtain

rebuttal from the petitioner. The respondent based the termination of

the “then” proposed Equal Employment Opportunity Commission's

Guidelines on Sexual Harassment, in spite of the fact that the respondent

never adhered to the guidelines or adopted any policy against sexual

harassment.

The respondent failed to apply its own disciplinary policy to the

male petitioner as it provided to the female employees, and terminated

the petitioner based upon a male stereotype. The respondent also ap-

peased the female employee by terminating the male employee. To

avoid the charge, the respondent intentionally “sacrificed” the

petitioner, rather than deal with a potential frivolous sex charge. Such

action and difference in treatment by the respondent violates Title VII.

In McDonald v. Saata Fe Trail Transportation Co., 427 U.S. 273

(1976), this Court granted protection to whites under Title VII; simi-

larly, males should receive the same protections as females under Title

VIL. See also Connecticut v. Teal, 457 U.S. 440 (1982); Lincoln

v. Board of Regents of Univ. System, 697 F.2d 920 (CA 11 1983);

cert. denied, 104 S. Ct. 97 (1983) and EEOC v. Brown and Root,

Inc., 688 F.2d 338 (CAS 1982); In a sexual harassment case the

McDonnell Douglas v. Green, 411 U.S. 792 (1973) guidelines for

proving a prima facie case of discrimination do not readily apply. The

courts below found no sex discrimination largely due to forcing the

facts of this case into the McDonnell Douglas prototype, which facts

do not fit that mold.

The issue of sexual harassment is of vital concern to employers and

employees; the lower Court's decision leaves the male employee with

little or no protection under Title VII, and in a strikingly different

position than his female counterpart based upon sexual stereotypes.

The Court has not addressed this specific issue, but a fair reading of

its decisions reveal equal protections for both maies and females under

Title Vil. The Court should grant certiorari to decide this important

issue.

CONCLUSION

For the reasons expressed above, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

ANDREW J. RUZICHO

3040 Riverside Drive

Suite 102

Columbus, Ohio 43221

(614) 486-0407

CERTIFICATE OF SERVICE

1, Andrew J. Ruzicho, a member of the Bar of this Court and counsel

for Petitioner herein, hereby certifies that on this 15th day of May

1985, three copies of the Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit were served, postage

prepaid, upon Richard A. DuRose, Smith & Schnacke, 2000 Court-

House Plaza, NE, P.O. Box 1817, Dayton, Ohio 45401.

ANDREW J. RUZICHO

3040 Riverside Drive

Suite 102

Columbus, Ohio 4322!

(614) 486-0407

No. 84-_

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1984

LARRY FRENCH.

Petitioner,

MEAD PAPER CORPORATION

FORMS PAPER DIVISION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

APPENDIX

ANDREW J. RUZICHO

3040 Riverside Dr.

Suite 102

Columbus, Ohio 4322]

(614) 486-0407

Counsel for Petitioner

NOT FOR PUBLICATION

No. 83-3745

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LARRY FRENCH,

Plaintiff-Appellant,

v.

MEAD PAPER CORPORATION,

FORMS PAPER DIVISION,

Defendant-Appellee.

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

Sixth circuit Rule 24 limits citation to specific

situations. Please see Rule 24 before citing in a

proceeding in a court in the Sixth Circuit. If

cited, a copy must be served on other parties and

the Court.

This notice is to be prominently displayed if this

decision is reproduced.

ON APPEAL FROM _ THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF OHIO

C-2-80- 1095

BEFORE: KENNEDY, CONTIE and MILBURN, Circuit Judges

Per Curiam. Upon consideration of the briefs and record herein and

after oral argument, the judgment of the district court is AFFIRMED

for the reasons stated in the entered opinion of the district court.

ISSUED AS MANDATE: March 11, 1985

COSTS: None

FILED

FEB 15, 1985

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Larry French

VS.

Case Number C-2-80-1095

The Mead Corporation,

Mead Forms Division

JUDGMENT

This action came on for consideration before the Court, The Honorable

Robert M. Duncan, United States District Judge, presiding. The issues

having been duly considered and a decision having been duly rendered,

iT IS ORDERED AND ADJUDGED THAT: plaintiff has failed to

prove his case. JUDGEMENT is entered for the defendant.

Dated at Columbus, Ohio, this 3rd day of October, 1983.

KENNETH J. MURPHY, CLERK

FILED

October 3, 1983

10

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Larry French

Plaintiff

VS.

Case Number C-2-80-1095

The Mead Corporation,

Mead Forms Division

Defendant

ORDER

Plaintiff, a white male, was terminated from employment by the

Mead Paper Corporation Forms Paper Division (Mead), asserting that

the termination was gender-based discrimination. The plaintiff pre-

sented a unique theoretical basis for recovery under Title VII, Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. After a

trial to the Court, the Court believes plaintiff's view of the law inap-

propriate and factually unsupportable. Findings of fact and conclusions

of law follow.

i

Larry French began his employment with Mead at its Chillicothe,

Ohio facility on October 6, 1956. In December 1973 he was promoted

trom the hourly employees’ bargaining unit to tour supervisor, a man-

agement position. While in this position, French received good to

excellent job evaluations.

A number of Mead management employees were involved in the

series of events that culminated in French’s firing, and it is helpful to

this discussion that they be identified by name and workplace respon-

sibility. Fred Eblin was the labor relations manager primarily respon-

sible for overseeing day-to-day labor matters. Linda Oney was an

employment manager who reported to Eblin and was involved with

EEOC matters, hiring, disciplining employees, and assigning “extra

crew” to various departments. James Rodkey was the employee rela-

tions manager for the Chillicothe Division and Eblin’s immediate super-

visor. Darrell Pate was Vice President of ijuman Resources and Rod-

key’s immediate supervisor. The operations manager of the mill was

Tom Lovensheimer who was second in command under Carter Smith.

In June 1980, Charles Cartwright was superintendent of the carbon-

less finishing area and reported to Warren Engel, the manager of the

carbonless production group. Engel reported directly to Lovensheimer,

the operations manager.

On June 4, 1980, an “extra crew” woman employee, Annmarie

Bales, came to Oney’s office and complained that French, her super-

visor, failed to assign her to a more favorable job claiming that she

was entitled to the rewinder job as a senior member of the “extra crew.”

She told Oney that Gary Clemmons, a supervisor on another tour, had

assigned her to the No. 56 rewinder job, but that French had refused

to assign her to that job. The rewinder job paid 30-40 cents more per

hour than the job to which Bales was assigned by French.

_ “Extra crew’ employees fill temporary vacancies created within a

department by employees on vacation or sick leave, or in the event a

temporary need for extra employees arises in a department. Within a

department a tour supervisor has some discretion in assigning “extra

crew” employees; the better jobs are usually assigned to the more

senior members of the “extra crew.”

According to French, he was off on June 3 and Gary Clemmons

was the substitute tour supervisor. Clemmons assigned Bales to the

rewinder helper job; the next day French assigned Mr. Berman, an

empioyee who was more experienced on the rewinder, to the rewinder

helper job. Bales then complained to French about the assignment and

presented the matter to Oney as mentioned above.

Bales also told Oney that plaintiff had occasionally put his hands

on her, patted her on the rear, and that she had to tell him to leave

her alone. At that time Oney told her to return to her assigned depart-

ment. Bales was reassigned to another department on June 5.

On June 10, 1980, Lawrence Brown, the EEO coordinator for the

City of Chillicothe, visited Oney and Eblin at the plant. Brown told

them that he had received information from Bales, whose husband

worked for the City and is a friend of Brown’s about a sexual harassment

problem at Mead regarding French.

After meeting with Brown, Eblin told his supervisor, Rodkey, about

Brown’s comments. Rodkey, concerned about an EEOC charge and

the alleged improper conduct of a supervisor, instructed Eblin to inves-

tigate the matter, determine the facts, and make a recommendation.

Eblin and Oney met with Bales on June 11. Bales told Eblin that

French had been giving her undesirable and improper work assign- .

ments. She related an incident in 1979 when plaintiff rubbed his hands

up and down her arms from her shoulders to her waist; however, she

made no complaint to Mead officials. Bales testified that on June 4

she consulted Oney because “I felt that he was putting me through

something agonizing” and that she felt she was “given a hard time

because I turned him down.” On deposition Bales stated that she felt

French was being “pricky.”

Bales also told Eblin and Oney that there were several other women

on “extra crew” who would support her charge that plaintiff was haras-

sing women. Beverly Holbert, Gayle Vandergriff and Sheila Holmes

were then interviewed at the Company’s request.

Before meeting with the women named by Bales, Eblin and Oney

were approached by Rebecca Coey, who also worked on the extra

crew. Coey was upset because plaintiff had assigned her the task of

gluing rolls with a defective glue gun. Coey told Eblin and Oney that

plaintiff had never tried anything with her, but that she had observed

plaintiff touching other female employees on his tour by putting his

13

hands directly under their breasts.

Eblin and Oney met with Beverly (Holbert) Bruce on June 13. She

had worked “extra crew” under French’s supervision on a number of

occasions. She related to Eblin and Oney that plaintiff put his arms

around her and wanted to kiss her, and said to her that “if you didn’t

want to go along with the things he wanted to do, he would give you

really bad things to do.”

Oney also met with Gayle Vandergriff on June 13. Vandergriff had

worked under plaintiff's supervision in the carbonless finishing area

while on “extra crew.” She told Oney that she had probiems with

plaintiff. She described an incident in which plaintiff fell on top of her

while trying to back her up against a “bubble pack.” Plaintiff fell on

top of her and didn’t want to get off. Vandergriff also told them that

she had observed Bruce very upset and in tears because plaintiff had

put his hands on her leg while she was cleaning a paper machine.

Neither Bruce nor Vandergriff had compiained to company officials

about plaintiff.

After the interviews with the women, French was calied in to meet

with Eblin, Cartwright, and Engel. Eblin, speaking from notes taken

by Oney of the interviews with the women and from his memory,

related to the plaintiff the accusations. French offered some explanation

of two or three of the claimed incidents, and basically denied that the

others occurred. On his behalf, plaintiff French suggested that the

supervisors, in the course of their investigation, should talk to some

of the employees on his shift, specifically Ms. Fitchpritch, Ms. Manson

and Ms. Ragland. This first meeting lasted 45 minutes to an hour.

Rather than talk with the persons suggested by French, Eblin decided

to consult women “who had worked on his (French’s) trick or were

working on his trick who were not associated with the problem, and

to my knowledge didn’t know anything about the problem or weren’t

involved one way or the other.” (Tr. 110.) He proceeded to speak with

Rose Routte and Linda Ratliff.

Eblin, Oney and John Allen, a union official, met with Linda Ratliff

on June 23. She stated that there was a “bad situation” on plaintiff's

tour, that there was “a lot of hanky-panky going on,” and that other

tours were different.

Rose Routte was also interviewed on June 23. She indicated that

plaintiff had put his arm around her on one occasion, that she had

shied away from him, and that he “got the message.”

Eblin reported to Rodkey, his superior, the results of his investiga-

tion. Eblin reported that he believed the information received regarding

French’s conduct to be true and further recommended that French be

terminated. Obviously, Eblin did not believe or otherwise credit

French’s explanations or denials. Eblin concluded that termination was

necessary since he believed plaintiff French, as a supervisor, had taken

advantage of his authority.

Eblin and Oney met with Sheila Holmes, another one of the women

originally named by Bales, on Monday, June 30. Holmes had been

assigned to plaintiff's tour on the “extra crew” on previous occasions.

Holmes related several incidents in which plaintiff solicited sex from

her. On one occasion, plaintiff told Holmes to go downstairs. When

she got on the elevator, plaintiff stepped in behind her. Plaintiff stated,

“T am one hell of a man and I won’t disappoint you.” He also said,

“I want to f--- you,” and then reached over and shut off the light

switch. Holmes responded, “Mr. French, if you don’t turn on the light,

I’m going to have to smack you.” Plaintiff turned the light on and

stepped out of the elevator.

On another occasion when Holmes was upstairs sweeping, plaintiff

paged her on the intercom. Holmes answered the page by telephone.

Plaintiff asked her, “Do you want to fool around?” Holmes responded,

“All I’m trying to do is just do my job,” and then hung up.

On yet another occasion, plaintiff approached Holmes in front of a

group of employees and asked her if she wanted to “f----.” Plaintiff

also told Holmes that he “had the hots for her.” Holmes was embarrassed

by these incidents and did not think that plaintiff was joking around.

She tried to avoid having contact with plaintiff--when she saw him

15

coming, she would try to move away. She stated that other foremen

did not conduct themselves in the same manner as plaintiff.

Eblin concluded that the information he received from the female

employees was true. He did not believe plaintiff's denial. The stories

from the women were varied, and evidenced continued sexual harass-

ment over a period of time. It was Eblin’s belief that any supervisor

who would take advantage of his supervisory position did not have the

right to remain employed by the Company. Eblin recommended that

plaintiff be terminated.

Lovensheimer returned from vacation on June 28 and learned about

the investigation of plaintiff's conduct. Lovensheimer obtained copies

of Oney’s notes from the various meetings and arranged to talk to

plaintiff on the following day, Sunday, June 29. Lovensheimer met

with plaintiff, confronted him with the various charges, showed him

one of the statements, and gave him the opportunity to rebut the charges.

Generally, plaintiff did not deny putting his hands on female employees,

but stated that it was his way of communicating. He denied any wrong-

doing. Lovensheimer told plaintiff that it would be best if he stayed

out of the mill until the investigaton was completed, and that he was

temporarily suspended. This meeting lasted almost an hour.

Lovensheimer asked both Eblin and Oney whether or not they be-

lieved the complaining women. Both answered in the affirmative.

Lovensheimer also met with Cartwright. He also spoke with Smith

and Pate, who concurred in the judgment that French should be dismis-

sed. The next day, July 1, 1980, Lovensheimer called French to his

office and gave him the option of resigning rather than being fired.

There is no evidence of any problems with or adversity between

French and any of the Mead management personnel mentioned herein

prior to June i980, with the exception of Cartwright. Earlier Cartwright

saw French patting a woman on the back. Cartwright told him, “I

would appreciate it if you would stop it, Larry, because it is going to

end up getting us both in trouble.” (Tr. 130-131.)

French’s supervisory position was filled by Robert Mischae, a white

16

male.

Three witnesses, Ms. Fitchpritch, Ms. Ragland, and Ms. Johnson,

permanent employees who were under the plaintiff's supervision for

approximately six years, testified that the plaintiff did not engage in

any conduct that constituted “sexual harassment.” They also testified

that the working atmosphere was enjoyable.

Ms. Fitchpritch and Ms. Ragland also testified that Ms. Bales, Ms.

Vandergriff, Ms. Holbert and Ms. Holmes were friends at work and

on occasion rode to work together. Ms. Fitchpritch and Ms. Ragland

gave testimony which conflicted with testimony of Holmes.

Regarding alleged incidents of sexual harassment at work, these

latter employees testified that the plaintiff never made any sexual ad-

vances or sexual comments to any women employees in their presence.

After the plaintiff's termination, permanent employees whom he

supervised, both male and female, signed a petition stating that his

termination was unjustified and requesting reinstatement of the plaintiff.

The petition was submitted to Mr. Lovensheimer on or about July 5,

1980, and was submitted because the regular employees on the plain-

tiff’s tour were not contacted or interviewed by the company officials.

The defendant corporation’s disciplinary procedures are set forth in

a Supervisors’ Manual. The procedure for disciplining an employee

after a complaint is lodged against the employee is as follows:

a. Review the employee’s personnel file to determine whether

there exist prior violations; (prior reprimands would be in writing).

b. After reviewing the file, give the employee an opportunity to

present hs version of the facts. The manual stresses that “the em-

ployee would be given the opportunity to present his arguments

fully during the interview.”

c. After a full investigation, the company will determine the

appropriate action based upon the Supervisors’ Manual. The purpose

of any disciplinary action “is not to punish, but to discourage repe-

tition of misbehavior by the offender or another following his exam-

ple.”

17

The defendant company did not have an officially articulated policy

against sexual harassment. However, Cartwright admonished French

and other new supervisors during their training that more women would

be working in the plant and that supervisors should not get involved

with women employees working in the plant under their supervision.

As a matter of custom and due to the working environment at the

defendant’s facility, there was some touching of employees, both male

and female, to gain their attention in a noisy environment. Also there

was frequent horseplay among the employees, including supervisors,

especially during break periods.

The company did not adhere to certain EEOC proposed guidelines

concerning sexual harassment by officially disignating specific sanc-

tions, or informing employees of the right to raise and how to raise

the issue.

However, Oney, Eblin, Rodkey, Cartwright, and Lovensheimer were

believable witnesses. Their beliefs that the complaints received from

women employees in June of 1980 were substantially true, were not

unreasonable, and were held in good faith. Moreover, it was not un-

reasonable for them to believe that such activity by a male supervisor

produced a psychologically and emotionally unpleasant and adverse

work environment for the complaining women. Although some of the

problems experienced with the plaintiff occurred as early as the spring

of 1979, the effect of those problems continued to be felt until plaintiff’ s

termination.

The investigation conducted by company managers certainly could

have been more thorough. Nevertheless, it was not so inadequate that

it can be found that action taken thereafter was unreasonable.

All of the complaining women who gave statements to Oney and

Eblin testified at trial, and generally reiterated the same facts stated in

June 1980. With the benefit of hindsight after the trial, the Court is

unable to discover anything that a more thorough investigation would

have turned up that would amount to a significant basis for concluding

that the company officials’ actions were unreasonable or taken in bad

faith.

18

Conclusions

The Court has jurisdiction in this matter pursuant to Title VII, Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

Plaintiff does not claim that any member of the opposite sex made

him the victim of unwelcome sexual advances that became a term or

condition of his employment. However, he does assert that he received

disparate treatment from that received by similarly situated women. In

a post-trial brief he further suggests a right to recovery on a disparate

impact theory. I am unable to find any facts even remotely calling for

an application of the latter theory; therefore, further comment in that

regard is unwarranted.

Plaintiff has the burden of proving a prima facie case of discrimina-

tion by a preponderance of the evidence. If plaintiff succeeds in proving

the prima facie case, the burden shifts to defendant to articulate a

legitimate, nondiscriminatory reason for the employee's termination.

Once this reason is articulated, plaintiff must prove by a preponderance

of the evidence that the legitimate reasons offered by defendant were

not the true reasons, but were a pretext for discrimination. The ultimate

burden of persuading the trier of fact that defendant intentionally dis-

criminated against plaintiff remains at all times with the plaintiff. The

defendant is not required to prove the absence of a discriminatory

motive. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248

(1981). See U.S. Postal Service v. Aikens, U.S. 103

S.Ct. 1478 (1983); Board of Trustees of Keene State College v.

Sweeney, 439 U.S. 24 (1978); McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 804 (1973); Canham v. Oberlin College, 666 F.2d

1057 (6th Cir. 1981), cert. denied, 456 U.S. 977 (1982).

The United States Court of Appeals for the Sixth Circuit has held

that, in a discharge case, a prima facie case under McDonnell Douglas

is established when the plaintiff proves the following elements:

(i) that he belongs to a minority;

(ii) that he was satisfactorily performing his job;

(iii) that, despite this performance, he was terminated; and

i9

(iv) that he was replaced by a non-minority worker.

Becton v. Detroit Terminal of Consolidated Freightways, supra, 6% /

F.2d at 141 (applying McDonnell Douglas in an analogous case arising

under 42 U.S.C. 1981). Accord: Potter v. Goodwill Industries of Cleve-

land, 518 F.2d 864 (6th Cir. 1975); Davin v. Delta Air Lines, Inc.,

678 F.2d 567, 570 (Sth Cir. 1982); Flowers v. Crouch-Walker Corp.,

552 F.2d 1277, 1282 (7th Cir. 1977); Long v. Ford Motor Co., 496

F.2d 500, 505-06 (6th Cir. 1974).

Mr. French claims that he has satisfied the membership in the pro-

tected class requirement since “this requires a simple stipulation that

the employee is a man or woman.” (Plaintiff's post-trial brief, p. 31.)

Stated another way, then, plaintiff takes the position that the protected

class requirement is nonexistent in a sexual harassment case. The Court

disagrees. There is no basis in law or common sense in the Mead

workforce scenario to give a white male supervisor a disfavored status

which would trigger an inference of discrimination. The Court notes

with interest that of the approximately 100 supervisors at the facility,

there was only one woman. Other than French's termination there is

nothing in the Mead work environment indicating that men were dis-

favored in any respect. This is not to suggest that in a proper case a

male cannot be a member of a protected class. See Lincoln v. Board

of Regents of the University System of Georgia, et al., 697 F.2d 298

(11th Cir. 1983).

French was replaced by a white male. Therefore, the fourth prong

of the McDonnell Douglas model is unsatisfied. Having failed to meet

the McDonnell Douglas-type standrds, plaintiff has also failed to pre-

sent a prima facie case. Without the aid of judicially created inferences

there is no evidentiary basis to find that French was discharged because

of his sex.

Even assuming that plaintiff had established a McDonnell Douglas

prima facie case, the defendant has articulated a non-discriminatory

reason for the termination. See Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248 (1981). Essentially, Mead reasonably believed

that in his supervisory capacity French had made unwelcome sexual

20

overtures to women which had an adverse effect on the work environ-

ment.

It is noted that even though the Court may have reached conclusions

different from those of the Mead managers, it is not and should not

be the Court's function to substitute its judgment for theirs unless their

judgment is unreasonable or exercised in bad faith.

The next step then in the arguendo discussion is an examination of

plaintiff's proofs that the reasons articulated by the defendant were

pretext.

In post-trial memoranda, plaintiff has presented a number of novel

approaches in arguing for recovery. However, the Court is unclear as

to exactly where in this discussion such matters should be addressed.

Perhaps they are aimed at showing pretext or perhaps they should have

been mentioned during the prima facie case conclusions. In any event,

brief comment on such arguments follows.

A

Plaintiff claims that the sexual conduct of an employee of one sex

was used by an employee of the other sex to get the alleged victim

discharged. This position seems to be grounded on the premise that

proof of record establishes that French's conduct was legitimate sexual

conduct. (Plaintiff's post-trial brief at p. 36.) This argument is mis-

directed. Although the total evidence adduced at trial is significant to

the determination as to whether defendant's termination of plaintiff

was reasonable based on the information before it at the time the

adverse action was taken against plaintiff, whether or not the trial

record establishes his conduct as legitimate is not the issue. In any

event, the Court cannot find from the record legitimacy concerning his

conduct. The evidence does not persuade the Court that the defendant

was duped by Bales, Bruce, Vandergriff, and Holmes. The Court is

mindful that in the plant there was evidence of frequent heterosexual

touching and certain “horseplay” with a sexual overtone. In order to

amount to actionable sexual harassment, however, the conduct must

be unwelcome and have an adverse effect on the terms and conditions

2!

of employment. The women’s complaints satisfy such a standard; the

general touching and “horseplay™ does not.

Next, plaintiff appears to argue that had a woman been similarly

situated and had manifested similar conduct towards men, she would

not have been fired. There simply is no credible evidence from which

such an inference can reasonably be drawn. There is no rule of law

which provides that an employer may not discharge a supervisor for

such conduct.

C

The fact that the company never adopted an official policy with

regard to sexual harassment is not flattering to the defendant, but does

not necessarily preclude them from terminating an employee for that

type of behavior. Common sense teaches that the behavior the defendant

believed plaintiff to have manifested was inappropriate. Whether or

not French's conduct can be characterized as sexual harassment is not

critical. What is critical is whether or not the defendant employer in

good faith believed plaintiff to be engaged in conduct which was

inappropriate in the work place. The facts of this case viewed in total

context do not show that defendant's articulated basis for terminating

plaintiff was pretextual.

Accordingly, plaintiff has failed to prove his case, and judgment for

defendant will be entered.

So ORDERED.

Robert M. Duncan, Judge

United States District Court