To show same sex harassment, one must show: 1) the alleged harasser made explicit or implicit proposals of sexual activity and that the sexual harasser was homosexual, 2) the harasser was motivated by general hostility toward members of the same sex, or 3) direct, comparative evidence showing different treatment for members of the same sex than for members of the opposite sex.  See:  Love v. Motive Enterprises, LLC.     In Love, the employee alleged several acts of discrimination by a female supervisor: the female supervisor would rub her breasts against Ms. Love many times; the female supervisor locked Ms. Love in the bathroom and said she would not unlock it until Ms. Love was "nice" to her; the supervisor rubbed her groin against Ms. Love’s leg; and more.  But, the Fifth Circuit found that Ms. Love had not presented evidence that the female supervisor was homosexual.  

Actually, Ms. Love did present such evidence.  But, she provided recollections of the supervisor’s homosexual acts after she had been deposed.  She provided an affidavit recalling homosexual acts by the supervisor.  But, this was after she had already testified in her deposition that she could not recall homosexual activity by the female supervisor.  

To some people, this late, new evidence would seem to still be evidence.  But, the to the Fifth Circuit, that is late evidence.  In the minds of some judges on the Fifth Circuit, if such evidence comes late, then it is suspect.  That is because some Fifth Circuit judges try to ascertain the facts or the truth behind allegations.  But, this matter was before the Fifth Circuit on appeal from a grant of summary judgment.  So, the judges should not have been weighing the evidence. 

Summary (or quick)  judgment occurs when the court essentially kicks a case out of court saying they have no case.  But, here, Ms. love does have a case.  She remembered a key fact late, but she recalled it all the same.  She ought ot have her day in court.  The fact that she remembered something after her deposition would be a good question for cross-examination.  But, it really is not enough reason to grant summary judgment.  

That is why Judge Dennis concurred in part and dissented in part.  He agreed with some things but disagreed with the part of the main decision which was weighing evidence.  When considering summary judgment, judges should not weigh evidence.  They should, instead, be giving the the employee the benefit of the doubt regarding all evidence.  

I have to say, I really am appalled at the many conclusions of fact the court reached in this decision.  They should not be resolving factual issues at all when deciding on summary judgment.  The court should give the employee the benefit of the doubt regarding all factual issues and then determine if she has a case.