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A 50-something male executive who claims his co-workers repeatedly gave him sexually related pamphlets — including one about erectile dysfunction that came with a fake Post-It note from the man’s wife — cannot pursue a Title VII claim under a hostile work environment theory because the sexual harassment he allegedly suffered was not “severe” or “pervasive,” a federal judge has ruled. But in the same opinion, U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania found that Thomas M. Keown has a valid age discrimination claim against Richfood Holdings and may also pursue a claim that he was constructively discharged in retaliation for complaining of sexual harassment. “The pamphlets may have been seedy and in bad taste, but they do not approach the level of severe, pervasive, and regular sexual harassment needed to support a sexual harassment claim,” Schiller wrote in his 15-page opinion in Keown v. Richfood Holdings. Schiller found that although the pamphlets “may have been offensive,” they were not enough to make out a hostile work environment claim because they “did not place Mr. Keown into a sexually threatening or humiliating position.” Keown’s lawyer, Harold I. Goodman of Philadelphia-based Raynes, McCarty, Binder, Ross & Mundy, argued that the pamphlet and Post-It note involving erectile dysfunction were particularly offensive to Keown because he had a penile implant. Schiller disagreed, saying, “There is no reason it should have interfered with his work performance or had a significant impact on his psychological well-being.” Schiller also found that the pamphlets “were sent too infrequently — eight or nine pamphlets over a four-month period — to constitute harassment.” According to court papers, Keown worked in the Norristown, Pa., office of Richfood Holdings where he held the title vice president in charge of transportation and oversaw management information systems. Beginning in October 1998, Keown said he began to find pamphlets containing sexual content in his work mailbox. One pamphlet was titled “Testosterone Levels: the Key to Great Sex for Men Over Fifty,” and discussed the possible benefits of the hormone androstenedione for older men’s sexual potency. Keown said he confronted Penny Mitchell, Richfood’s accounting vice president, who admitted sending the pamphlet. Mitchell allegedly told Keown: “You’re an older man. You’ve got gray hair. I thought they would be of interest to you.” Between October 1998 and January 1999, Keown claimed he received up to 10 more sexually suggestive pamphlets. All of the pamphlets were small booklets of about eight to 10 pages, he said, and some were more sexually explicit than others. But the harassment was also age-based, Keown claimed, citing a December 1998 telephone conversation in which his direct supervisor, Charlotte Edwards, remarked: “Tom Keown, you’re getting senile on me” and slammed down the telephone. Keown claims he reported the incident to company management, but that no disciplinary action was taken against Edwards. In the final alleged incident of sexual harassment, Keown claimed he received a pamphlet that discussed erectile dysfunction in older men. Attached to the cover of the pamphlet was a Post-It note signed in the name of Keown’s younger wife, Denise, that directed Keown to a chart and picture on the pamphlet’s second page. According to Schiller’s description, “Page two of the pamphlet depicted a woman leering over a gray-haired man’s shoulder as he was looking at the man’s desiccated anatomy. Behind them was a graph about the male anatomy correlating its size with age.” Mitchell has admitted sending both the pamphlet and the note. When Keown complained to Robert Romano, the general manager of Richfood’s Norristown office, the matter was turned over to executives in the company’s headquarters in Richmond, Va., and Keown received no further pamphlets. But Keown claims that while the problem appeared to be solved, the company actually did nothing about it and instead set out to retaliate against him for complaining. Keown claimed he was called to a meeting with Alec Covington, the company’s chief operating officer, and Michael Rotelle, the head of human resources, that he believed was to discuss his complaints against Mitchell. Instead, Keown claimed that his complaint was only touched on at the meeting, and Covington changed the subject to denouncing Keown for his use of profanity at work and criticizing his work and his work ethic. Keown said he felt the criticism was unfair since he had consistently received high performance reviews and won the maximum raises allowed by the company. He claimed he had worked long hours and had developed a centralized computer system for the Norristown office for which he was given no credit. Soon after the meeting, Keown claims he was told that he would not receive a car allowance as previously promised, that his contract with Richfood would not be renewed, that he had no future at the company. He also claims his boss recommended that he resign and that he did so several weeks later. Another male employee testified that he was later told to “watch your step, too,” because the company was “trying to get the older guys out of here.” Schiller dismissed the hostile work environment claim after finding that Keown could not show that the sexual harassment he suffered was “severe” or “pervasive,” or that it had “detrimentally affected” him. But Schiller found that the same pamphlets could be evidence of age bias, and that Keown has a valid age discrimination claim because of evidence that his boss made a remark that he was getting “senile” and was never disciplined despite Keown’s complaint. Richfood’s lawyers, David C. Landin, A. Neal Barkus and Scott A. Hinshaw of Hunton & Williams in Washington, D.C., argued that since Keown’s replacement was older, he had no valid age discrimination claim. Schiller disagreed, saying “the evidence also shows that a number of Mr. Keown’s former functions were taken on by a man 17 years his junior.” Schiller also found that a jury could find a link between Keown’s complaints of sexual harassment and the events that led to Keown’s resignation. As a result, Schiller refused to dismiss Keown’s Title VII retaliation claim.

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