A former Snowbird employee has failed to convince a federal appeals court that he was the victim of reverse discrimination.
Mark H. Raleigh was fired from his job as a resort timeshare sales associate after a co-worker accused him of grabbing her buttocks and trying to kiss her.According to the court record, Raleigh was on his way to meet his wife and children after a day of skiing on Jan. 19, 1997, when he ran into Julie Litchfield in the Cliff Lodge elevator. Raleigh denied Litchfield's accusation, saying he simply gave her a "friendly good-bye hug as she departed the elevator."
The following day, Dana Sirstins, Snowbird's personnel manager, notified Raleigh that Litchfield had filed a sexual harassment complaint against him and that he was being suspended. She also advised him not to contact Litchfield or discuss the complaint with anyone else.
However, the court record indicates that Raleigh disregarded Sirstins' instructions and called Litchfield to apologize for what had happened. On Jan. 23, he was fired.
On Nov. 4, he filed a lawsuit against Snowbird, Litchfield, Sirstins and others, alleging that female employees at the resort engaged in the same kind of consensual conduct -- including joking, teasing, hugging and other gestures -- without being suspended or terminated.
U.S. District Judge Dale Kimball dismissed the lawsuit last year, ruling that Raleigh failed to establish a case because there were no "similarly situated" female employees whose conduct could be compared with his.
Raleigh then appealed to the 10th Circuit Court in Denver, which Tuesday affirmed Kimball's ruling.
Writing for the court, Senior Judge James E. Barrett said Raleigh's contention that female employees engaged in the same conduct without being fired "misses the point."
"In order to be 'similarly situated,' there must have been a complaint against a female employee for such conduct, or conduct of comparable seriousness, as there was against Raleigh," Barrett said.
"We are not concerned with whether the allegations in Litchfield's complaint are true. We are concerned with whether Snowbird discriminated against Raleigh in its termination decision based on his gender in violation of Title VII."
And on that point, the judges agreed with Kimball that Raleigh had presented no evidence demonstrating that any female employee accused of work rule violations received different or more favorable treatment.
"We also note that Raleigh failed to establish background circumstances tending to show that Snowbird is one of those . . . employers that discriminates against the majority. Consequently, we hold that Raleigh failed to establish a prima facie case of reverse discrimination," the judges said.
Raleigh's attorney, Kathryn Collard, said the appeals court ruling is disappointing not only from her client's standpoint but for the precedent it sets.
"This decision fails to deal with a situation where it's the first time that a male complains of sexual discrimination," she said.
Also, the appeals court appears to have established a different standard for men who allege sexual discrimination, Collard added. A woman asserting a similar claim isn't required to show a pattern or "background circumstances" of sexual discrimination to prevail, she explained.
And according to Collard, the ruling has allowed the female defendants "to use the claim of sexual harassment as a sword rather than a shield."
Collard said Raleigh may pursue his claims in state court.