                                                               NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No: 03-4190


                                 TIMOTHY CORBETT,

                                                 Appellant,

                                            v.

                                      SEALY, INC.

                                 ____________________


                    On Appeal from the United States District Court
                          for the Western District of Pennsylvania
                               District Court No. 01-CV-1648
                   District Judge: The Honorable Maurice B. Cohill, Jr.

                                 ____________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 11, 2005

   Before: ROTH and CHERTOFF * , Circuit Judges, and SHAPIRO ** , District Judge.

                              (Opinion filed: March 17, 2005)




   *
    This case was submitted to the panel of judges Roth, Chertoff and Shapiro. Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).
   **
    Honorable Norma L. Shapiro, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                 ____________________

                                         OPINION

SHAPIRO, District Judge.

       Timothy Corbett (“Corbett”) brought this action alleging gender discrimination

against Sealy, Inc. (“Sealy”) under Title VII of the Civil Rights Act of 1964 (“Title VII”)

and the Pennsylvania Human Relations Act (“PHRA”). He appeals the District Court’s

grant of summary judgment in favor of Sealy.

I. FACTS AND PROCEDURAL HISTORY

       Corbett worked at Sealy for sixteen years, first as a laborer, then in management,

where he attained the position of production supervisor of the sewing room. In his

capacity as supervisor, Corbett oversaw Kathy Kriebel (“Kriebel”), described by Corbett

as a “verbally crude” employee who “frequently used foul, vulgar, and explicit language.”

Corbett had previously complained to Sealy management that Kriebel had pinched the

rear of a co-worker, but Sealy took no action.

       On October 18, 2000, Corbett and several co-workers were discussing

camouflaged hunting pants Corbett had received from a co-worker. Kriebel told the

group she could tell they were from a local high school, to which Corbett responded,

“Yeah, I’ve got your little boy’s pants right here.” (Corbett deposition, A-45) Joking,

Corbett then gestured as if he were going to unzip his pants, but did not actually do so.

Kriebel responded, “Let me see, let me see.” Corbett laughed and said, “No.” Kriebel



                                             2
replied “I knew you didn’t have a hair on your ass to do that.” Another male employee,

Garret Goheen (“Goheen”), pulled his pants down an inch or two.

       The following day, Corbett assigned Kriebel to finish pillow tops, a job not

normally hers. Kriebel said she would not “effing do that job,” and suggested someone

less senior should do it. After further discussion, Kriebel agreed to do the job, but

threatened to complain to her union. She did so, and also complained about the events of

October 18 (“the October 18 Incident”). The union then contacted Sealy’s Vice President

of Human Resources, Tom Brown (“Brown”).

       On October 20, 2000, Corbett met with Brown and plant manager Jim Staab at the

request of Brown to discuss the October 18 Incident. Corbett told them what happened

and who was there. Later that day, Brown told Corbett he had talked to the witnesses,

and they corroborated Corbett’s version of the incident. Several days later, Brown

suspended Corbett with pay while the incident was investigated further. Brown said other

witnesses saw Corbett pull his zipper down, but Corbett denied it. Brown also accused

Corbett of retaliating against Kriebel by looking at her in the wrong manner.

       Two days later, Brown completed his investigation, and concluded Corbett had

made an inappropriate gesture. Corbett was permanently discharged for violation of the

Sealy non-harassment policy.1 A letter emphasizing the non-harassment policy was

   1
    The non-harassment policy states: “Harassment is considered an act of misconduct
which will result in disciplinary action including discharge if the situation warrants.” The
policy defines harassment as:


                                             3
placed in Kriebel’s employee file. Goheen, who had pulled his pants down an inch or

two, received a warning letter. Corbett requested and received an exit interview with the

president of human resources and vice president of operations at Sealy’s corporate

offices. Corbett said the October 18 Incident was simply a joke over hunting pants, and

denied any intent to sexually harass Kriebel. Sealy upheld his termination.

       Corbett filed a complaint with the Equal Employment Opportunity Commission

(“EEOC”), and the EEOC, finding no discrimination, issued a right-to-sue letter. Corbett

filed this action against Sealy for violations of Title VII and the PHRA. The District

Court granted summary judgment for Sealy on both counts. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 42 U.S.C. § 2000e et seq. This court has

jurisdiction under 28 U.S.C. § 1291. Our review is plenary. Hampe v. Butler, 364 F.3d

90, 93 (3d Cir. 2004). We apply the same test as the District Court under Federal Rule of

Civil Procedure 56(c). See Kelley v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d

Cir.1988). Summary judgment may be granted only if there is no genuine issue as to any



       ...unwelcome or unsolicited sexual, physical, verbal or written conduct
       which creates or contributes to a hostile or offensive work environment.
       Harassment is also verbal or physical conduct that denigrates or shows
       hostility or aversion toward an individual because of his/her race, color,
       religion, gender, national origin, age or disability, and that (i) has the
       purpose or effect of creating an intimidating, hostile, or offensive work
       environment; (ii) has the purpose or effect of unreasonably interfering with
       an individual’s work performance, or (iii) otherwise adversely affects an
       individual’s employment opportunities.

                                             4
material fact and Sealy is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In

evaluating the evidence, we interpret facts in the light most favorable to Corbett, and

draw all reasonable inferences in his favor. Doe v. County of Centre, PA, 242 F.3d 437,

446 (3d Cir.2001).

II. DISCUSSION

A. Sex Discrimination Under Title VII

         Corbett alleges Sealy disciplined him more harshly than Kriebel because he is

male, a violation of 42 U.S.C. § 2000e-2.2 Sex discrimination against males has been

dubbed “reverse discrimination.” See Iadimarco v. Runyon, 190 F.3d 151, 155 (3d Cir.

1999). In Iadimarco, this Court defined a modified burden-shifting analysis that differs

slightly from the usual test under McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Corbett must establish a prima facie case by presenting sufficient evidence to

allow a factfinder to conclude Sealy treated some people less favorably than others based

on sex. Iadimarco, 190 F.3d at 161. The burden then shifts to Sealy to articulate a

legitimate, nondiscriminatory reason for firing Corbett. Id. at 157. If Sealy succeeds, the

burden shifts back to Corbett to show Sealy’s reason for firing him was pretextual. Id. at

   2
       Section 2000e-2 states, in relevant part:

         It shall be an unlawful employment practice for an employer–

                (1) to fail or refuse to hire or to discharge any individual, or otherwise to
                discriminate against any individual with respect to his compensation, terms,
                conditions, or privileges of employment, because of such individual's race,
                color, religion, sex, or national origin.

                                                   5
166. Corbett must point to evidence from which a reasonable factfinder could either: 1)

disbelieve Sealy’s alleged nondiscriminatory reason; or 2) believe an invidious

discriminatory reason was more likely than not a motivating or determinative cause of his

firing. Id. If Corbett offers evidence "that would allow reasonable minds to conclude

that the evidence of pretext is more credible than the employer's justifications, the

employer's motion for summary judgment must fail.” Id.

       The District Court applied the modified burden-shifting analysis under Iadimarco

to Corbett’s reverse discrimination claim. To establish a prima facie case, Corbett

claimed disparate treatment of him relative to Kriebel. Corbett had reported Kriebel for

pinching a male worker’s rear and she had frequently used vulgar language, but Sealy had

taken no disciplinary action. After the October 18 Incident, Sealy fired Corbett, but

merely placed a letter in Kriebel’s file. The District Court, rejecting this argument, found

that: 1) Brown, who investigated the October 18 Incident, was never made aware of

Kriebel’s past conduct; 2) Sealy treated Corbett more harshly than Kriebel because he

was a supervisor; and 3) Goheen, who was treated less harshly than Corbett, was male.

Considering the totality of this evidence, the District Court held no reasonable factfinder

could find Sealy treated Corbett more harshly because he was male, so that Corbett failed

to establish a prima facie case, and even if he had, Corbett could not show Sealy’s

legitimate nondiscriminatory reason for firing him was pretextual.

       Considering the facts alleged and the inferences therefrom in favor of Corbett, a



                                              6
reasonable factfinder could conclude Sealy treated him more harshly than Kriebel because

he was male. A reasonable factfinder could also conclude that Brown was never made

aware of Kriebel’s vulgar behavior because Sealy’s failure to investigate was

discriminatory. Corbett did establish a prima facie case.

       However, Sealy articulated a legitimate, nondiscriminatory reason for firing

Corbett while retaining Kriebel: Corbett, who violated Sealy’s non-harassment policy by

gesturing towards Kriebel on October 18, and later eying her in a retaliatory manner, was

a supervisor, while Kriebel was not. Sealy could reasonably hold management to a higher

standard than laborers. This nondiscriminatory reason is supported by Sealy’s treatment

of Goheen, a laborer who was reprimanded in the same lenient fashion as Kriebel even

though he was male.

       The burden then shifted to Corbett to show Sealy’s reason was pretextual. Corbett

argued the non-harassment policy prohibits unsolicited behavior, and that Kriebel

solicited his gesture by responding, “Let me see, let me see.” But the non-harassment

policy is not limited to unsolicited behavior. Sealy could reasonably have found Corbett’s

behavior was harassment since the policy’s defined harassment as “verbal or physical

conduct that denigrates or shows hostility or aversion toward an individual...” Corbett

admitted he made the unzipping gesture before Kriebel responded, “Let me see, let me

see.” His gesture could not have been solicited by conduct that had not yet occurred. He

offered no evidence that Sealy’s explanation was pretextual.



                                            7
    B. Sex Discrimination Under the Pennsylvania Human Relations Act

             Claims under the PHRA are interpreted coextensively with Title VII claims. Kelly

    v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). Since Corbett failed to establish a

    claim of sex discrimination under Title VII, summary judgment for Sealy on the PHRA

    claim was not error.

    III. CONCLUSION

             Corbett established a prima facie case of discrimination, but Sealy presented a

    legitimate, nondiscriminatory reason for firing him. Corbett did not present evidence that

    Sealy’s reason was pretextual. While Sealy’s treatment of Corbett may have been harsh,

    it was not illegal sex discrimination.3 The District Court’s grant of summary judgment

    was not in error.

    AFFIRMED.




       3
1          That Sealy may have reacted to union pressure was not before the District Court.

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