                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2455
                                    ___________

Jerry Yeager,                            *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
City Water and Light Plant of            *
Jonesboro, Arkansas,                     *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: February 17, 2006
                                  Filed: June 30, 2006
                                   ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       As Jerry Yeager drove to his job at the City Water and Light Plant of
Jonesboro, Arkansas, co-worker Carolyn Schwartz pulled up behind Yeager at a stop
light. Yeager left his vehicle, reached in Schwartz’s partially open window, and
pinched the startled Schwartz on her breast. Schwartz complained about Yeager’s
inappropriate conduct to Yeager’s supervisor, Ron Hannah, and then to Hannah’s
supervisor, Larry Thompson. When confronted with the complaint, Yeager smiled
and said he accidentally pinched Schwartz on the breast. He was forced to resign for
violating City Water and Light’s sex harassment policy. He brought this action
alleging reverse gender discrimination and now appeals the district court’s1 grant of
summary judgment dismissing that claim. We affirm.

      Yeager’s principal argument in the district court and on appeal is that summary
judgment was improper because he presented sufficient evidence showing that his
former employer “meted out more lenient treatment” to a similarly situated employee
who was not in the protected class, namely, Carolyn Schwartz. Smith v. Allen Health
Systems, Inc., 302 F.3d 827, 835 (8th Cir. 2002). In response to City Water and
Light’s motion for summary judgment, Yeager submitted employee affidavits
averring that Schwartz openly and frequently engaged in conduct violating City
Water and Light’s sex harassment policy, yet Schwartz was never disciplined or even
reprimanded for her improper conduct, whereas Yeager was terminated for a single
incident of sexually offensive misconduct.

        The district court rejected this argument, concluding that Yeager did not prove
pretext because he and Schwartz were not similarly situated. Specifically, Yeager
admitted the misconduct that prompted an immediate complaint by Schwartz, whereas
Schwartz denied the stale accusations of sexually offensive conduct first raised by
employees who were protesting Yeager’s termination. Reviewing the district court’s
grant of summary judgment de novo, we agree. An employer that promulgates a sex
harassment policy may reasonably distinguish between sexually oriented conduct that
elicits a complaint from an offended co-worker, and arguably comparable conduct
that is nonetheless tolerated by co-workers without complaint. See Morrow v. Wal-
Mart Stores, Inc., 152 F.3d 559, 562-63 (7th Cir. 1998). Thus, both the absence of
contemporaneous complaints against Schwartz, and the fact that Yeager admitted his
misconduct, justified City Water and Light in treating these two employees as not
similarly situated from the standpoint of compliance with its sex harassment policy.


      1
       The HONORABLE J. LEON HOLMES, Chief Judge of the United States
District Court for the Eastern District of Arkansas.

                                         -2-
In these circumstances, Yeager’s claim of reverse discrimination was properly
dismissed.

      The judgment of the district court is affirmed. Appellee’s motion to strike is
denied as moot.
                     ______________________________




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