January 28, 2005

Couple files harassment complaint against bottler

by Eric Resnick

Cleveland--A transgender man and his partner have filed complaints against a soft drink bottling company for on-the-job harassment that eventually led to both of them being fired.

The case is one of the first to use a 2004 court ruling for transgender firefighter Jimmie Lee Smith of Salem that extends the protection of the 1964 Civil Rights Act to transgenders, gays and lesbians if it involves sex-stereotyping.

Anthony ?Tonie? Szukala of Cleveland filed a complaint against his former employer with the Ohio Civil Rights Commission on November 22 alleging discrimination by sex-stereotyping. The commission is pursuing the case.

The complaint is against Ohio Beverage Systems of Cleveland which bottles fruit drinks in plastic containers.

Szukala says in the complaint that male co-workers would whistle and hoot at him, ?call each other ?girl? and make flamboyant hand gestures in a very effeminate manner in front? of him.

After three days of work on October 13, 14 and 15, Szukala said he was fired for being ?a distraction? and was told he does not ?fit in.?

The complaint says supervisor Will Davies ?was aware of this harassing conduct because he asked me if I was okay after he observed my co-workers taunting me.?

Szukala describes himself as male, who generally presents as female, including his clothing and polished manicured nails.

While employed at Ohio Beverage Systems, Szukala dressed ?scruff? and did production work.

Szukala?s partner Don Tumino had been employed at the beverage company since September. He was terminated October 25 following a roof collapse at the plant that resulted in a shouting match with another employee.

Tumino has filed a complaint against the company with the Occupational Safety and Health Administration alleging that the company retaliated against him for pointing out hazards, including the sagging, leaking roof and electrical equipment soaked by the leaks. The city of Cleveland cited the company for the problems after the roof fell in.

The two cases intersect at the point that co-workers learned that Tumino and Szukala are partners and openly gay. Tumino said his incident with the co-worker, Amy Wolfe, included her telling him, ?Get your faggot ass out of here? and to ?go home and suck a dick.?

The couple has hired Cleveland attorney Michael Graham, who believes both have good cases.

Tumino, who was a full-time employee, says he would go back to work for the company, but because the termination was unjust, wants to be compensated for back wages.

Szukala does not want to return, but will be pressing for back wages as well.

Ohio Beverage Systems president James Rickon said he isn?t aware of all of the circumstances of either case, but said Tumino was ?a good worker.?

Rickon, whose company has no ?hard and fast? non- discrimination policy, said, ?We haven?t had anything like this in the past, so I don?t have an answer as to what we will handle it.?

Vice president Ralph Kula said he has in the past taken people aside and talked to them about behavior that might be offensive, but did not do it in either of these cases.

Kula said Wolfe was not disciplined for the altercation with Tumino.

?She?s been here for a lot of years,? said Kula, then added that for a woman to run a production line that long is ?remarkable.?

Graham said he took the cases after first reviewing the law, including the Smith v. Salem case from the Sixth Circuit Court of Appeals.

?It got on my nerves to think of what Ohio Beverage did to these people,? said Graham.

OSHA and the civil rights commission will each complete their investigations over the next few months and decide whether or not the complaints have merit.

If at that time the parties do not settle, suits could be filed.

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