Richard Dean Rogers

In same-sex Title VII harassment cases Rogers strictly enforces Oncale's threshold 'because of sex' requirement before reaching severity. Crude sexual jokes and simulated-masturbation gestures by a male supervisor toward a male subordinate were NOT actionable absent proof the harasser was homosexual or acting from sexual desire, or evidence of how he treated women, or general anti-gender hostility. Practical lesson: in a same-sex harassment claim before this court, you must put on affirmative proof of one of the Oncale routes to 'because of sex' -- offensive conduct alone, however vulgar, will not survive summary judgment.

“There is no credible evidence that Captain Ritter is homosexual or bisexual or that his actions toward plaintiff were motivated by sexual desire or sexual prejudice... These crude efforts at jocularity or domination do not appear appropriate even in an all-male work environment. The record is barren of proof, however, that Ritter's conduct, albeit improper, was motivated by sexual desire or sexual prejudice.”

On ADEA pretext at summary judgment, Rogers distinguishes remarks about 'years of service' / seniority from remarks about chronological age, treating the former as not probative of age discrimination, and applies the 'same-actor' inference only when the record clearly shows the same person hired/promoted and fired. Where the evidence conflicts on who made the termination decision, he will deny summary judgment and let the pretext question go to a jury.

“After a thorough review of the entirety of the evidence presented, the court finds that plaintiff has presented evidence that is sufficient to create a triable issue as to whether the defendants= proffered reason for terminating him was a pretext for age discrimination.”