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WILCOX v. DOME RY. SERVS.

September 15, 1997

DANNY WILCOX, Plaintiff,
v.
DOME RAILWAY SERVICES, a division of ST. LOUIS REFRIGERATOR CAR CO., a foreign corporation, and a wholly owned subsidiary of ANHEUSER-BUSCH COMPANIES, INC., Defendant.



The opinion of the court was delivered by: STIEHL

 STIEHL, District Judge:

 Before the Court is defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. Previously, on August 16, 1996, defendant filed a summary judgment motion and advanced essentially the same arguments as it advances in the current motion. Defendant, in its original motion for summary judgment, acknowledged that Count I avers three claims for relief pursuant to Title VII: (1) same sex hostile work environment sexual harassment; (2) retaliation; and (3) disparate treatment. At the time defendant filed its motion, the case was assigned to United States District Judge Paul E. Riley. Judge Riley prepared a Memorandum and Order docketed August 21, 1996, wherein he denied in part and granted in part defendant's motion for summary judgment. Specifically, Judge Riley found that plaintiff could maintain his claims of same sex hostile work environment sexual harassment and disparate treatment, but could not maintain his claim for retaliation.

 Less than one month later, for reasons that are not important to this Court's analysis, Judge Riley recused himself from this proceeding. The case was re-assigned by random draw to this Court. The Court then scheduled a status conference for January 24, 1997. At that conference, the Court extended the deadline for filing dispositive motions, in effect allowing defendant to renew its previously filed motion for summary judgment previously ruled on by Judge Riley. On February 7, 1997, defendant filed its motion. Plaintiff has since responded to defendant's motion and defendant has filed a reply brief.

 BACKGROUND1

 Plaintiff began working as a mechanic for defendant on January 4, 1977. It appears from the record that plaintiff's service to the company was consistently satisfactory or above throughout most of the employment period leading up to his termination. Also, equally clear from the record is the fact that plaintiff was satisfied with his job until 1990 or 1991. At that time, plaintiff first met Mark Meyers.

 Meyers, who usually worked as a painter, worked with plaintiff for three days in defendant's fabrication shop. According to plaintiff, on one of those three days, Meyers began telling plaintiff about problems he (Meyers) was having with his girlfriend. Meyers then proceeded to ask plaintiff on a "date," an offer which plaintiff declined. Plaintiff told his co-workers in the fabrication shop about Meyers' offer, and everyone laughed about it. Although plaintiff really believed Meyers asked him on a date, plaintiff admits he did not in any way feel threatened by the request.

 Plaintiff's and Meyers' work schedules were such that they did not have any more contact with each other for several months. The next time the two saw each other, however, the situation changed dramatically. According to plaintiff, Meyers walked by him yelling and making various gestures. These gestures included blowing kisses, rubbing his crotch, acting like he was masturbating, and simulating an act of "oral masturbation." *fn2" While making these gestures, Meyers remained approximately 30 feet from plaintiff.

 Just weeks after this incident, the two had another encounter during which Meyers made similar gestures at plaintiff. After this second encounter, when Meyers gestured to plaintiff, plaintiff responded by calling Meyers a "nut" and told him to "stay away." According to plaintiff, Meyers laughed and walked away. Plaintiff further claims, that at that point he thought Meyers was a homosexual.

 Throughout 1992, the situation continued to degenerate to the point where Meyers, at least weekly, and perhaps even daily, continued to exhibit similar offensive behavior toward plaintiff. At one point, plaintiff claims Meyers physically threatened and screamed at him, *fn3" and plaintiff complained to the plant manager. Apparently the plant manager took no action, and according to plaintiff, the harassment increased to as much as four or five times a day; it even took place when the two men, who were on different shifts, would pass each other during shift changes.

 Plaintiff asserts that he complained to the plant "lead man," and then to the general car foreman, Ron Crites. According to plaintiff, Crites told plaintiff that he was a "big boy" and to take care of the problem himself. Sometime in 1993, plaintiff discussed the harassment with defendant's manager, Steve Prockovic. Despite these complaints, the company took no action against Meyers.

 In 1994, the situation was coming to a head. The record reveals that defendant's manager, Mark Winkles, overheard managers Crites and Prockovic joking about Meyers harassing plaintiff. According to Winkles, Crites and Prockovic laughed that plaintiff was scared of Meyers. Prockovic joked: "Maybe they both are fags." In October 1994, plaintiff claims Meyers was heard to suggest that he would give plaintiff a dildo as a present for Christmas. At this point, plaintiff, having received no assistance from management and having previously been told to take care of it himself, went on the offensive. Every time plaintiff saw Meyers, he told "him [Meyers] he was a no good queer faggot, [and] to stay away." According to plaintiff, he "got very hostile, and it worked." At this point, Meyers turned the tables and complained to Crites about plaintiff's insults. According to plaintiff, in November, Crites told him to leave Meyers alone.

 Shortly thereafter, on November 23, 1994, plaintiff and several co-workers were in the locker room showering. Meyers entered the room and threw kisses and winked at plaintiff from across the room. Meyers then grabbed his crotch and made kissing sounds at plaintiff while plaintiff was still in the shower room. After this incident, plaintiff complained to manager, Bill Raney. On December 2, 1994, Raney prepared a memo recommending "Meyers be discharged for continuing to create a hostile work environment for a fellow employee."

 On December 3, 1994, deciding he had enough, plaintiff followed Meyers into the locker room to confront him. Meyers again made obscene gestures and blew kisses at plaintiff. A physical altercation occurred that was quickly broken-up by other employees. After an investigation into the incident, defendant's management decided to terminate the employment of both men ...


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