by Eric Resnick

Warren, Ohio--A gay General Electric employee has expanded his long-running job discrimination suit against his employer to federal court.

Barry Tenney, 52, says he has been harassed at work since he sued the company and four employees in state court six years ago.

Tenney has worked at GE�s Niles Mahoning Glass facility since 1973. He wants the U.S. District Court in Youngstown to find the company liable for retaliation that includes subjecting him to unsafe working conditions and sexual harassment.

The federal suit was filed October 9. GE has not yet been served the complaint.

The state suit has been working its way through the courts since 2000, with parts of it dismissed because Ohio has no job discrimination law covering gays and lesbians. The latest appeal is set for a hearing November 15 in the Eleventh District Ohio Court of Appeals in Warren.

Tenney�s attorney, Tom Sobecki of Toledo, originally saw this as an opportunity to get the Ohio Supreme Court to extend employment protection laws to include sexual orientation because of the extreme nature of Tenney�s harassment, and an earlier decision where two of the justices said that sexual orientation should be protected.

Tenney has collected a wealth of photographic and recorded evidence. Sobecki points to death threats, photos of anti-gay graffiti, and an incident where Tenney was grabbed and hugged against his will by the plant nurse.

The state effort has largely failed, however, and Trumbull County Common Pleas Judge John Stuard has dismissed most of Tenney�s claims over the life of the suit.

A three-judge appeals court panel in 2002 agreed with some of Stuard�s findings and reversed others, in a 21 opinion. The majority judges, Robert A. Nader and Diane V. Grendell, found that �sexual orientation is noticeably not included in the list of prohibitions� in the section of Ohio law dealing with sexual harassment and discrimination.

Sobecki had initially asked the court to consider his case in light of a 1989 Ohio Supreme Court concurring opinion in Retterer v. Whirlpool Corp., where Justice Paul Pfeiffer wrote that the case �might have presented us the opportunity to consider whether discrimination based on sexual orientation is also actionable,� adding �it is only a matter of time before the question is properly before the court.�

Nader and Grendell ruled that Tenney�s sexual orientation discrimination claim �lacks merit.�

As a judge, Grendell, formerly an anti-gay state legislator, has a record of going out of her way to rule against LGBT litigants. She was asked to remove herself from the case of a gay man appealing his conviction for breaking a nonexistent gay sex crime. That was largely based on her earlier decision to prohibit a heterosexual couple from marrying because the groom is transsexual. In that decision, Grendell repeatedly cited an advisory opinion, which is against the rules of appellate courts, and Ohio�s �defense of marriage act� before the state senate even passed it.

Judge Judith Christley dissented, writing that Tenney�s sexual harassment claim was based on the hostile work environment and the reduction of promotion and benefits Tenney suffered, and should have gone forward.

Christley cited another 1989 Ohio Supreme Court case, Hampel v. Food Ingredients Specialties, Inc., where the high court ruled that where a hostile environment is created, the law �protects men as well as woman from all forms of sex discrimination in the workplace, including . . . same-sex sexual harassment.�

�Accordingly, a person�s sexual orientation is actually immaterial when claiming hostile environment sexual harassment,� wrote Christley.

The three judges agreed, however, that Tenney�s claim of intentional reckless infliction of emotional distress should go forward.

That claim was, in part, based on evidence showing that the employee defendants wrote crude things about Tenney, including that he has AIDS, on bathroom walls and other places around the plant.

The appeals court sent the case back to Stuard to go forward on that matter.

Stuard dismissed the case again, which produced the appeal that the Eleventh District is hearing next week.

Grendell is slated to be on this panel, too, along with Judges William M. O�Neill and Colleen M. O�Toole.