Lesbian/Gay Law Notes (June 2006) reports that Fontanez-Nunez, who first lost a case against his former employer in U.S. District Court in Puerto Rico, recently had his claim that he was terminated for reasons that violate Title VII rejected by the U.S. Court of Appeals for the 1st Circuit.

While employed at Janssen, Fontanez-Nunez was promoted and received several salary increases. However, during his last two years of employment, the employer claimed, he performed poorly, leading to his termination. Upon his termination, Fontanez-Nunez brought suit under Title VII, alleging that his former supervisor, Angel Natal, used foul language and often made sexual comments to him or in his presence. Some of these comments referenced homosexual activity, and one time knowing that Fontanez-Nunez was a pharmacist, Natal said that all pharmacists are homosexuals. Shortly before he was terminated, Fontanez-Nunez said, Natal remarked that he was looking for a homosexual with whom to engage in sexual relations. The termination decision was made by his last supervisor and another senior manager.

The court ruled in favor of Janssen because Fontanez-Nunez failed to present any evidence of discrimination and was unable to establish a prima facie case. He presented no evidence that the real reason for his termination was age or gender discrimination. The court stated that Natal’s comments might have been inappropriate, but they were not severe or pervasive enough to alter the conditions of Fontanez-Nunez’s employment and thus did not violate Title VII. Natal’s comments were typically directed at many employees. Janssen had a grievance procedure in place, but Fontanez-Nunez never filed a grievance on these issues.

More here (“Title VII Claim Premised on Supervisor’s Sexual Solicitation Fails” can be found on page 9).