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Crotch-grabbing is not
similarly situated conduct with breast flashing.
Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853 (8th
Cir. March 15, 2004) - This is a Title VII race discrimination action
alleging wrongful termination. Otha Wheeler was terminated after an
investigation revealed that she had grabbed the crotch and had attempted the
grab the crotch of several male employees who considered the touching
unwanted. Approximately one year after Wheeler's termination, a male
employee was terminated because he had smeared grease on a female
co-worker's buttocks and grabbed the breasts of two female co-workers. Also
approximately one year after Wheeler's termination, Aventis reprimanded a
white female who would expose her breasts to others upon request. Wheeler's
argument is that others engaged in similar horseplay and were not terminated. The
Court holds that Wheeler established the fourth prong of the prima facie
case ("that circumstances exist which give rise to an inference of
discrimination") because the standard for making out a prima facie
case is not onerous and Wheeler provided evidence that other employees
engaged in horseplay. However, for purposes of proving pretext, the test of
what constitutes similarly situated conduct is "rigorous." Employees are
similarly situated only when they are involved in or accused of the same
offense and are disciplined in different ways. Sexually-offensive conduct
that involves physical contact is not the same as offensive comments,
gestures, or lewd displays. The male employee accused of improper touching
was terminated. The white female who was exposing her breasts was not
engaged in similar conduct. Therefore, the Court affirms the grant of
summary judgment for Aventis. Click
here to see actual case.