Warren, Ohio--Discrimination and harassment suffered by a gay General Electric employee is �so outrageous, that standing by itself meets the standard of intentional infliction of emotional distress, and should be tried by a jury,� the worker�s attorney told a three-judge panel of the Eleventh District Ohio Court of Appeals.
The November 22 hearing was the last issue that will be considered by an Ohio court after six years of litigation by Barry Tenney, 52, against the company where he worked for 33 years, and four of his co-workers.
Tenney�s attorney, Tom Sobecki of Toledo, hoped that because of the outrageousness of the harassment and the quality of the evidence Tenney collected, the case would be a good one to get the Ohio Supreme Court to consider extending employment non-discrimination protection to sexual orientation, as it hinted it should in a 1989 case.
Tenney, who works at the Niles Glass facility, was subjected to death threats, assault, and public humiliation, including anti-gay graffiti saying he has AIDS that was left for months on bathroom walls.
Trumbull County Common Pleas Judge John Stuard has dismissed most of Tenney�s claims over the life of the suit, because there is no law that prohibits discrimination by sexual orientation.
This is the second time the Eleventh District has heard the case. The first was in 2002, when the court held that the sexual orientation discrimination claim �lacks merit.�
But the appeals court also said Tenney�s claim of intentional infliction of emotional distress should go forward.
Stuard disagreed, and dismissed the claim a second time.
Sobecki is now asking for the appeals panel to reverse Stuard a second time.
The defendants were represented by Gregory Mersol of the Cleveland office of Baker and Hostetler.
The panel was presided over by Judge William M. O�Neill, joined by Colleen M. O�Toole, and Diane V. Grendell.
Grendell, who is known for going out of her way to rule against LGBT litigants, also heard Tenney�s first appeal, and ruled against him.
Formerly an anti-gay state legislator, Grendell has been asked to remove herself from an unrelated case of a gay man appealing his conviction for breaking a nonexistent sex law. That was largely based on her earlier decision to prohibit a heterosexual couple from marrying because the groom is transsexual. In that opinion, Grendell repeatedly cited an advisory opinion from a lower court, which is against appellate rules, and Ohio�s �defense of marriage act� before the state senate� passed it.
Sobecki was aware of Grendell�s record but chose not to challenge her sitting on this case, arguing instead that this matter was narrowly about the intentional infliction of emotional distress, not gay rights.
Each side got 15 minutes of questioning by the panel.
�We can agree that this behavior is disgusting,� said O�Toole, �but is it actionable?�
Referring to an incident where the plant nurse hugged Tenney against his will, O�Toole asked, �Can sexual battery be used in an intentional infliction of emotional distress claim, making it more than just insults?� Sobecki replied, �No.�
Sobecki continued that the problem was that GE supervisors laughed at what was happening to Tenney, and that no one was reprimanded, which is the �intentional� test.
Sobecki added that there are still facts of record that a jury needs to sort through.
�In the judgment entry it says [Tenney] has failed to prove distress,� said Grendell.
�With all due respect, that�s not correct,� replied Sobecki, noting Tenney�s deposition that notes he avoided using the restroom for fear of breaking down and crying because the slanderous graffiti was still there.
�We meet every element to get over summary judgment and it is sufficient to make a case for intentional infliction of emotional distress,� said Sobecki.
Mersol was up next. He downplayed what happened to Tenney and, on O�Toole�s prompting, proclaimed that GE is a progressive company with effective policies against such conduct.
�Let�s talk about outrageous,� said O�Neill. �What if we reverse sex roles. What if the nurse is male, and he hugs a female employee and says �Give me some loving.� Would that be extreme and outrageous?�
�No. That�s not extreme or outrageous,� responded Mersol to O�Neill�s visible surprise.
�You mean all reasonable minds would say that�s not unreasonable or outrageous?� asked O�Neill.
�Yes,� said Mersol. �What you described is sexual harassment, but it�s not extreme or outrageous.�
�Your position is that folks in the factory, who were told to stop this, did?� asked O�Toole.
�A woman�s saying she�s going to cut off his penis with a knife and you don�t find it outrageous?� asked O�Neill.
�No,� said Mersol.
�We�re at the Eleventh District, and you want us to say as a matter of law that it is not extreme or outrageous?� asked O�Neill. �Is that what you want us to write?�
�Isn�t this case a hostile work environment?� asked O�Neill.
�Not everyone is Emily Post,� said Mersol. �The standard is extreme and outrageous. There are people in this plant and in this city who don�t have the most progressive views.�
Sobecki had three minutes set aside for rebuttal.
�What fell apart over there?� asked O�Toole. �Was he just considered a difficult employee?�
�All we have is the record,� said Sobecki. �Barry Tenney is a fine person, but all they saw was that he is homosexual.�
The court�s decision is expected within six months.
Sobecki and Tenney filed a separate federal suit on October 9 charging that GE retaliated against Tenney for taking legal action. GE has not yet been served papers in that suit.