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Bibby v. Phila. Coca Cola Bottling Co.

United States Court of Appeals for the Third Circuit

April 26, 2001, Argued ; August 1, 2001, Filed

No. 00-1261



BARRY, Circuit Judge:

John J. Bibby claimed to have been subjected to same-sex sexual harassment at the hands of his employer, the Philadelphia Coca-Cola Bottling Company, in violation of Title VII. The District Court granted summary judgment to the employer, and Bibby appealed. Because we conclude that Bibby did not present sufficient evidence to demonstrate that he suffered discrimination "because of sex," we will affirm the judgment of the District Court.


John Bibby has been an employee of the Philadelphia Coca-Cola Bottling Company since June 1978. In 1993, Bibby, who is gay, experienced some medical difficulties, including weight loss, breathing problems, and vomiting [**2]  blood. 1 On August 12, 1993, Bibby was having pains in his stomach and chest when he was found by his supervisor with his eyes closed and a machine for which he was responsible malfunctioning with product being destroyed. He was accused of sleeping on the job. Bibby asked for permission to go to the hospital and was told by the supervisor to "just go." As he was leaving, the supervisor told him he was terminated, although in fact he was suspended with the intent to terminate. Bibby was hospitalized for several weeks for treatment of depression and anxiety. During his suspension and after receiving clearance from his treating physician, he met with his supervisors to arrange his return to work. At this meeting, he was told that he would be paid $ 5,000 and would be given benefits and unemployment benefits for six months if he resigned, but if he did not accept the offer, he would be terminated. Bibby refused the offer and was terminated but, following arbitration of a grievance he filed, he was reinstated and awarded back pay.

 [**3]  On December 23, 1993, the day he returned to work, Bibby was assaulted in a locker room by a co-worker, Frank Berthcsi. Berthcsi told Bibby to get out of the locker room, shook his fist in Bibby's face, grabbed Bibby by the shirt collar, and threw him up against the lockers. On January 22, 1995, Berthcsi again came after Bibby. 2 On that day, Bibby was at the top of a set of steps working at a machine that puts cases of soda on wooden or plastic pallets. Berthcsi was driving a forklift loaded with pallets, and he "slammed" the load of pallets under the stairs, blocking Bibby's exit from the platform on which he was standing. Bibby paged a supervisor, and Berthcsi was ordered to remove the pallets. He refused. Berthcsi and Bibby then exchanged some angry words, and Berthcsi repeatedly yelled at Bibby that "everybody knows you're gay as a three  [*260]  dollar bill," "everybody knows you're a faggot," and "everybody knows you take it up the ass." 3 Later that day, Berthcsi called Bibby a "sissy." Bibby filed a complaint with the union and with the employer, and Berthcsi was suspended pending an investigation. Bibby refused the union's request that he withdraw the complaint, and Berthcsi's [**4]  employment was terminated. The union filed a grievance on behalf of Berthcsi, and he was reinstated subject to the employer's condition that he undergo anger management training.

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260 F.3d 257 *; 2001 U.S. App. LEXIS 17075 **; 86 Fair Empl. Prac. Cas. (BNA) 553

JOHN BIBBY, Appellant v. PHILA. COCA COLA BOTTLING COMPANY; RON WILSON, Individually, and in his Official Capacity as President of Operations; CLIFF RISELL, Individually, and in his Official Capacity as Vice President of Operations; FRAN SMITH, Individually, and in his Official Capacity as Production Manager Supervisor; BOB TAYLOR, Individually, and in his Official Capacity as Supervisor; STEVE FIORE, Individually, and in his Official Capacity as Quality Control Supervisor; FRANK BERTCHSCI, Individually, and in his Official Capacity as Employee at Coca-Cola, Bottling Company; JOHN KOLB, JR., Individually and in his Official Capacity as Director of Human Relations at Coca-Cola Bottling Company; J. BRUCE LLEWELLYN, Individually, and in his Official capacity as Chief Executive Officer at Coca-Cola Bottling Company; GENE KELLER, Individually, and in his Official Capacity as Warehouse Manager Supervisor

Subsequent History:  [**1]  Certiorari Denied February 19, 2002, Reported at: 2002 U.S. LEXIS 856.


Disposition: Affirmed.


harassment, sex, sexual, same-sex, sexual orientation, sexual harassment, stereotypes, gender, hostility, discriminate, co-workers, workplace, woman, terminated, assault

Labor & Employment Law, Harassment, Sexual Harassment, Hostile Work Environment, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, General Overview, Appellate Jurisdiction, Final Judgment Rule, Gender & Sex Discrimination, Scope & Definitions, Sexual Orientation, Same-Sex Harassment, Criminal Law & Procedure, Crimes Against Persons, Coercion & Harassment, Elements, Gender Stereotypes, Personal Appearance & Habits, Sexual Harassment, Disability Discrimination, Evidence, Burdens of Proof, Employee Burdens of Proof, Defenses, Antiharassment Policy