Citing La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). The court noted
A plaintiff in a same-sex sexual harassment case may establish discrimination because of sex by showing: (1) “the alleged harasser made ‘explicit or implicit proposals of sexual activity’ and provid[ing] ‘credible evidence that the harasser was homosexual;’” (2) “the harasser was ‘motivated by general hostility to the presence of [members of the same sex] in the workplace;’” or (3) “‘direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’” Id. (quoting Oncale, 523 U.S. at 80, 118 S. Ct. at 1002). It is the claim that this case involves the first type of evidence.The court's majority (Smith and Reavely) wrote:
evidence shows that Sirey derided Love, frequently calling her a “stupid bitch,” “fat cow,” and “disgusting.” She allegedly told Love that she was a “sorry excuse for a woman because she did not make the coker conducive for women to work in;” that she was a “failure as a woman;” and that “You think that’s a body you have? You should be ashamed.” Sirey also allegedly touched Love with her hands on two occasions. On the first, Sirey confronted Love in the changing room and ran her finger under Love’s bra strap and her underwear near her hip while at the same time calling Love “fat” and “disgusting.” On another occasion, Sirey began rubbing Love’s shoulders and back while Love was at the lunch table. When Love protested, Sirey said she was “just being friendly.” Love testified that Sirey also would seek her out at company functions, stand next to her, and touch her arm to let her know Sirey was present. We agree with the district court, that these incidents, while offensive and inappropriate, do not support an inference of sexual attraction and implicit proposals for sex in light of Sirey’s consistent insults toward Love and demonstrated negative feelings about Love and her appearance. Sirey’s conduct is more indicative of humiliating or bullying behavior.And this is a not so remarkable opinion on those allegations. The majority opinion goes on to note that Love alleged that after she has weight loss surgery
The majority found the negative remarks continued after Love's return to work and that the pervasive pejorative remarks precluded a finding that any implicit proposals for sexual activity had occurred.and return to work from surgery she was obviously more attractive to Sirey, and that Sirey’s inappropriate conduct was no longer accompanied by negative remarks. According to Love, Sirey tried to hug her on her first day back at work while giving Love a ride in a company truck. She also argues that on at least twenty occasions, Sirey rubbed her breasts against Love while reaching for a log book located in Love’s work area. Sirey also locked Love in the women’s changing area and bathroom, stating that she would not free Love unless Love were nice to her and did favors for her.
The majority also noted Love failed to establish her tormentor was homosexual either by her deposition, or by a declaration by a coworker who "heard Sirey state loudly several times that the reason the men did not like her was because she was gay or female.” The majority dismisses this evidence
That sure seems to be a failure to see the evidence in the light most favorable to the non-moving party. The dissenting Judge (Dennis) takes the majority to task for that and other reasons.But we do not find the statement to be clear and credible proof that Sirey is homosexual sufficient to defeat summary judgment. It is not clear whether the co-worker was uncertain which of the two conditions Sirey allegedly asserted as the reason for the men’s feelings or whether the co- worker heard Sirey express one or both conditions. But at most, the statement indicates Sirey’s assessment of what her male co-workers think about her and does not affirmatively show Sirey is homosexual.
The entire dissent in this unpublished opinion is worth the read.The summary judgment record reflects that, over a period of a year-and-a- half when Love and Sirey were co-workers at Motiva’s Norco refinery, Sirey repeatedly rubbed her breasts and groin area against Love’s legs and upper body; touched Love under her bra and underwear straps while she was otherwise undressed; requested sexually-charged “favors” from Love on numerous occasions while, at times, fondling her own body; attempted to kiss and hug Love; complimented Love on her good looks; and stalked and touched Love at company functions and at Love’s work station. Separately, Sirey was seen intimately kissing another woman and overheard referring to herself as “gay.” Yet the majority concludes that Love’s claim for same-sex sexual harassment does not survive summary judgment because Sirey’s alleged advances were canceled out “when considered in the context of Sirey’s rude and obnoxious persona . . . and her overall insulting and intimidating attitude toward Love,” maj. op. at 4, and because Love did not “show . . . that Sirey is homosexual[,]” id. at 5.
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