by Eric Resnick

Warren, Ohio--An appeals court has let part of a gay man�s job discrimination suit go forward, again raising hope that gays and lesbians harassed at work may have some protection under Ohio law.

The suit, brought by Barry Tenney, 53, against General Electric�s Niles Mahoning Glass facility, has been working its way through both state and federal courts since 2000.

Tenney, who still works at the plant, has been an employee of GE since 1973. He says he has been harassed for being gay by the company and four employees about half that time.

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

Over the years, Tenney collected a wealth of photographic and recorded evidence of death threats, anti-gay graffiti, physical harm, and an incident where he was grabbed and hugged against his will by the plant nurse.

The state cases have been in the court of Trumbull County Common Pleas Judge John Stuard, who has, over the years, dismissed most of Tenney�s claims and most of the defendants.

In 2002, the Eleventh Ohio District Court of Appeals agreed with Stuard in a 2-1 opinion stating, �sexual orientation is noticeably not included in the list of prohibitions� in the section of Ohio law dealing with sexual harassment and discrimination, and as such, Tenney�s case �lacks merit.�

However, the court agreed that Tenney�s claim of intentional reckless infliction of emotional distress should go forward.

That claim was 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, and that GE allowed the graffiti to stay up for months.

Stuard, however, dismissed the case again, which brought about this appeal.

Judges William M. O�Neill, Colleen M. O�Toole, and Diane V. Grendell heard the appeal in November. Grendell also heard the first appeal, ruling against Tenney both times.

In the June 29 opinion, O�Neill, writing for himself and O�Toole, said, �we find a genuine issue of material fact exists as to whether [General Electric�s] conduct regarding harassment of Tenney was extreme and outrageous.�

�Extreme and outrageous� is required to make the distress claim.

O�Neill wrote that the sexual groping of Tenney by the plant nurse was the incident that took it to that level.

�In addition, other more benign incidents, when considered in their totality, reflect a pattern of inaction by General Electric with respect to the incidents committed against Tenney,� wrote O�Neill.

�General Electric stood by when Tenney was struck by glass in the incident involving [two other employees]; it allowed sexually explicit graffiti to remain on its walls for months; it allowed some employees to make pig noises at Tenney for months before putting a stop to it; and, finally, the incident in which [the nurse] gave her obtuse opinions about Tenney�s homosexuality,� O�Neill continued.

�These multiple acts over a period of time and General Electric�s inaction or finding no violations of its policies cumulatively create evidence of outrageous conduct on behalf of an employer for the purposes of summary judgement,� wrote O�Neill.

Grendell disagreed.

Formerly an anti-gay state legislator, Grendell has a record as a judge of going out of her way to rule against LGBT litigants. She was asked by Sobecki to refrain from hearing this appeal, which she declined.

Grendell was once asked to remove herself from the case of a gay man convicted of breaking a nonexistent gay sex law. She didn�t, and took issue with the majority�s decision to toss the conviction.

She also rendered an earlier opinion barring heterosexual couple from marrying because the groom is transsexual. In that decision, Grendell cited an advisory opinion ten times. Even once is against the rules of the appellate courts. She also cited Ohio�s �defense of marriage act� before the state senate passed it.

�Contrary to the majority�s opinion, General Electric�s conduct does not, as a matter of law, rise to the level of extreme and outrageous conduct necessary to sustain a viable claim of intentional infliction of emotional distress,� wrote Grendell.

Grendell said the most that can be said of GE�s conduct was that it was slow to respond.

�There is simply nothing intolerable about the way in which General Electric responded to the allegations regarding [the nurse],� Grendell wrote.

Grendell trivialized Tenney�s permanent injury that occurred when two co-workers maliciously pushed a stack of glass lenses on him, reasoning that �he did not inform anyone of his alleged physical injury or seek medical treatment . . .�

Grendell said that failure to discipline an employee for harassing Tenney �does not rise to the level of extreme and outrageous conduct.�

The case has been sent back to Stuard�s court for trial.

No calendar has been set by press time.