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In a same-sex sexual harassment suit brought by a retarded man who alleged that his co-workers nearly raped him in a locker room, a divided federal appeals panel has reversed a lower court’s decision that labeled the conduct nothing more than “macho horseplay and adolescent roughhousing” and dismissed the suit. While the majority decided to reverse the decision, it dodged the more vexing question of whether a retarded plaintiff is entitled to a modification of the ordinary “reasonable person” test to account for his disability. A dissenting judge, however, said his colleagues were wrong to dodge the question since it was the only one raised in the briefs. And in answering it, the dissenter said, he would have rejected the notion that retarded plaintiffs “are any more (or less) sensitive to harassment than anyone else.” The decision in Pirolli v. World Flavors Inc. is one of the first cases in which the 3rd U.S. Circuit Court of Appeals has been called on to interpret the boundaries of the U.S. Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services, which authorized same-sex sexual harassment suits under Title VII. The plaintiff, Kenneth Pirolli, who has an IQ of 75, worked as an “all around” employee at World Flavors with duties that ranged from sealing and stacking boxes to sweeping and scrubbing floors. In his suit, Pirolli alleged that his co-workers twice attempted to forcibly sodomize him, stuffed him into a garbage can, physically beat him, placed him in headlocks, threw materials at him, posed vulgar and sexual questions and propositions, made embarrassing and humiliating statements to him about his mental disability, and poked fun at the way he walked, ate and drank. He claimed he reported the incidents to his supervisor, Edward Selser, but the conduct continued. But Senior U.S. District Judge Lowell A. Reed Jr. found the allegations in the suit often weren’t backed up by evidence. “The court was shocked upon its first reading of plaintiff’s amended complaint. However, after a thorough review of the evidence and the relevant case law, I have concluded that the more egregious allegations in the complaint are not substantiated even by the plaintiff himself,” Reed wrote. Although the case at first appeared to be “a serious case of workplace harassment,” Reed found that it “now appears to have consisted of macho horseplay and adolescent roughhousing in a context where such behavior was the common and accepted mode of social interaction.” Reed found that Pirolli’s best evidence focused on an episode in the locker room at the World Flavors plant that his lawyer, Lee I. Raiken, characterized as a rape or an attempt at forcible sodomy. But Reed found that Pirolli’s own deposition testimony showed that “these characterizations are greatly exaggerated.” Pirolli testified that a co-worker attempted to prevent him from leaving the locker room by holding him around the waist from behind and another turned off the lights in the room briefly while he and his co-workers were in various stages of undress. During the scuffle, he said he saw the penis of one of his co-workers. Reed found that while the co-workers’ conduct may have been inappropriate, “it is clear from plaintiff’s description that the incident was far from a rape or even an attempted rape.” In another alleged incident, the suit said a co-worker attempted to insert a broomstick in Pirolli’s anus. But Reed again found that the evidence didn’t back up the claim, since Pirolli himself said his pants were on and that the broomstick was simply pushed against his backside. Reed found that many of the other alleged incidents were not even overtly sexual in nature, such as the claim that Pirolli was stuffed into a plastic container or squirted with a hose on numerous occasions. In the end, Reed concluded that Pirolli could not show that he was harassed because of his gender. Reed also rejected Pirolli’s claim that he was harassed “because of” his disability. Now the 3rd Circuit has ruled that a jury must decide whether Pirolli’s work environment was sexually hostile. Writing for the majority, Senior U.S. District Judge William W. Schwarzer of the U.S. District Court for the Northern District of California, sitting on the 3rd Circuit by invitation, said Reed erred in characterizing all of the harassment as nothing more than horseplay and roughhousing, saying “the harassment inflicted on Pirolli was not so limited.” Schwarzer said Reed also erred in refusing to consider a report from psychologist Fred Dorfman, who treated Pirolli after he was fired and recounted Pirolli’s tale of fearing that he was about to be raped. “The Dorfman report, read in conjunction with Pirolli’s testimony, is sufficient to raise a triable issue of hostile work environment,” Schwarzer, joined by 3rd Circuit Judge Marjorie O. Rendell, wrote in an opinion. Schwarzer said Reed rejected Dorfman’s report because it was in the form of an affidavit. But it was the defense that introduced the report in the first place, Schwarzer said, and it never objected to it. However, Schwarzer affirmed Reed’s decision to toss out the harassment claim under the Americans with Disabilities Act, saying “it would be mere speculation, not a reasonable inference, to conclude these acts resulted from hostility because of Pirolli’s mental retardation.” In dissent, 3rd Circuit Judge Samuel A. Alito said he would have upheld Reed’s ruling in its entirety. The majority erred, Alito said, by deciding the appeal on an issue that was never briefed. While Pirolli’s lawyer argued that Reed erred by failing to take the plaintiff’s retardation into account, Alito said, the majority dodged that question and instead raised one of its own — whether the work environment was one that even a nonretarded person would find hostile. “I would overlook many technical violations of the Federal Rules of Appellate Procedure and our local rules, but I do not think it is too much to insist that Pirolli’s brief at least state the ground on which reversal is sought and mention the supporting facts with at least a few pertinent citations to the record,” Alito wrote. “Because his brief does not do so, I would not reach the issue on which the majority reverses.” Instead, Alito said, he would tackle the question the majority chose to dodge: “whether Pirolli’s work environment, even if not one that a reasonable person of normal intelligence would find hostile or abusive, would be regarded as such by a reasonable retarded person.” Alito said he would reject the plaintiff’s argument on that point because there is no evidence that retarded people are more sensitive to harassment. “Pirolli’s argument is premised on a stereotype that I am not prepared to accept without support,” Alito wrote.

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