E.E.O.C. v. Burlington Medical Supplies, Inc.

• Decision Date: 03 March 2008
• Docket Number: Civil Action No. 4:06cv122.
• Citation: 536 F.Supp.2d 647
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BURLINGTON MEDICAL SUPPLIES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

536 F.Supp.2d 647

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BURLINGTON MEDICAL SUPPLIES, INC., Defendant.

Civil Action No. 4:06cv122.

United States District Court, E.D. Virginia, Norfolk Division.

March 3, 2008.

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Amy E. Garber, Esquire, Equal Employment Opportunity Commission, Norfolk, VA, Tracy Hudson Spicer, Esquire, Equal Employment Opportunity Commission, Washington, DC, for Equal Employment Opportunity Commission.

David C. Burton, Esquire, Melissa L. Saunders, Esquire, Sara B. Rafal, Esquire, Williams Mullen, Virginia Beach, VA, for Burlington Medical Supplies, Inc.

OPINION

WALTER D. KELLEY, JR., District Judge.

The Equal Employment Opportunity Commission ("EEOC") initiated this sexual harassment and hostile work environment action on behalf of charging party Georgeanna Trudil and all similarly situated females employed by Defendant Burlington Medical Supplies, Inc. ("Burlington"). Burlington has now moved for summary judgment (Docket No. 7) on the ground that an employee's perception of sexual harassment is so inherently subjective that it can never be litigated on a "pattern or practice" basis. Burlington also claims that the EEOC has not produced sufficient evidence of sexual harassment to warrant a trial.

The Court previously DENIED Burlington's Motion in an Order (Docket No. 18) dated November 1, 2007. This Opinion explains its decision.

I. Factual and Procedural Background

Burlington manufactures and sells radiation-protective aprons for hospitals. The company maintains an office and its manufacturing plant in Newport News, Virginia. Burlington also employs sales representatives throughout the United States. Dennis Swartz and his wife, Elaine Swartz, are the co-owners of Burlington. Alan Leming is Burlington's sales manager.

Ms. Trudil, the person on whose behalf the EEOC proceeds, was employed by Burlington as a sales representative from January 2003 to September 2003. She filed an EEOC charge on February 19, 2004, alleging the following incidents of sexual harassment:

· Mr. Swartz stated that while he was at a hotel once, "he could not even get a hooker to pick [him] up."

· Mr. Swartz referred to a woman as a "bitch" several times.

· Mr. Swartz and Mr. Leming often discussed the size of women's body parts.

· Mr. Swartz and Mr. Leming told each other lewd and offensive jokes.

· Mr. Leming often discussed his marital sex life.

· Mr. Swartz accompanied Ms. Trudil on two sales calls during which he made lewd comments about the bodies of female customers, and, on one occasion, stated that a woman was a "cunt" and "needed to get laid."

· Mr. Swartz told Ms. Trudil how much he enjoyed going to nude beaches, and commented that he watched people engage in sexual activities while at a nudist colony.

· Mr. Swartz stated that "I would love to have a midget just this high so she could just run around and just suck on me all day long."

· Mr. Swartz stated that he and his wife have an open marriage.

· Mr. Swartz commented that small breasts were "not even worth putting in his mouth" and that large breasts were "more than a mouthful."

· Mr. Swartz told Ms. Trudil that she was probably "hot" when she was younger, and that she had been a "hot fire in bed" that could "go a couple of rounds."

· Mr. Leming stated three times that he "was able to rub baby oil all over [his wife's] body and slip and slide in and out and everything else."

· Mr. Leming stated that he could "use a good blow job."

· Mr. Leming stated that everyone, including Ms. Trudil, "wanted him."

· Mr. Leming stated that he enjoyed having sex with his ex-wife because she had a "nice tight little body."

· Mr. Leming stated that a woman he saw walking down the street was probably a "good fuck."

· Mr. Leming described his stepdaughter as a little whore.

After investigating Ms. Trudil's allegations, the EEOC elected to litigate this action on her behalf. During the course of discovery, the EEOC identified in January 2007 two other women who claimed to have been sexually harassed while they worked at Burlington. One of them was Jana Grant, who was employed by Burlington from January 1997 to October 2005. She claims, inter alia, that:

· Mr. Swartz showed her a magazine from a nudist association and on another occasion showed her a drawing of a nude woman that was on his email.

· Mr. Swartz told her that he fantasized about midgets and how he would like to have a female midget under his desk while he was sitting in the chair.

The other woman identified by the EEOC in January 2007 was Cheryl DeFeo. She worked for Burlington for one year beginning in June 2002. Ms. DeFeo complains of the following incidents:

· Mr. Swartz asked about her sex life while they traveled together on a sales trip.

· Mr. Swartz called her to a hotel conference room in order to show her the exposed buttocks of a woman.

In March 2007, the EEOC identified more alleged victims of sexual harassment One of them was Barbara: Robinson, woman who worked at Burlington as a sales representative. She will testify about the following incidents:

· Mr. Leming repeatedly referred to her house, which is painted pink, as the color of a "titty" and as the "pink pussy house."

· Mr. Leming purposely touched her breasts on several occasions,

· Mr. Swartz constantly made comments about women's breasts, told Ms. Robinson "you know what I mean, you have, big ones," and often compared Ms. Robinson's breast size to that of other women.

· Mr. Swartz would talk constantly about sexually oriented topics while on sales calls with Ms. Robinson and did 80 even during a dinner with Ms. Robinson and her husband.

Ms. Robinson claims that these incidents occurred between December 2003 and February 2004.

Another "victim" identified by the EEOC in March 2007 was Debbie Ritchie. She was employed by Burlington from March 1999 to September 2002. Ms. Ritchie claims that the following incidents occurred while she was, on the job:

· Mr. Swartz called her and another female employee over to his computer to look at a nude photo of an old wrinkled woman.

· Mr. Swartz required that Ms. Ritchie scratch his back one to two times per week while he made moaning and groaning noises.

· Mr. Swartz called his wife a "bitch."

· Mr. Swartz called Ms. Ritchie into his office', told her to raise her arms, measured her bust size, and stated "Ooh-52 inches Debbie."

· Mr. Swartz made numerous other comments about Ms. Ritchie's breast size.

· Mr. Swartz asked Ms. Ritchie three to four times about her sex life with her husband.

Tracy beSimone is the final former Burlington employee' identified by the EEOC. She' asserts that the following incidents occurred at Burlington during her employment between July 2001 and May 2002:

· Mr. Swartz made numerous inappropriate comments to DeSimone about her breast size.

· Mr. Swartz approached Ms. DeSimone from behind and placed a tape measure around her chest.

· Mr. Swartz told her at least five times that he was a "breast man."

· Mr. Swartz required her to research information about nudist camps.

The EEOC seeks monetary relief for Ms. Trudil and all similarly situated women at Burlington, as well as injunctive relief and punitive damages.

II. Analysis¹

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits "discrimination] against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." A hostile work environment due to sexual harassment is discrimination based on sex. See Meritor Say. Bank v. Vinson, 477 U.S. 57, 64-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To prevail under an individual claim of sexual harassment,

A plaintiff employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the plaintiff's sex; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.

Spicer v. Va. Dep't of Corr., 66 F.3d 705, 710 (4th Cir.1995) (en banc).

The test outlined above contains two subjective components. First, the requisite "unwelcomeness" of the first prong necessitates a subjective inquiry. Second, the individual plaintiff's conditions of employment are not actually altered unless she "subjectively perceive[s] the environment to be abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

In order to challenge sexual harassment in court, the alleged victim must file a charge of discrimination with the EEOC not later than 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1).² If the EEOC determines that the charge has merit, it is authorized to prosecute the case civilly.³ The EEOC may proceed in two ways. First, it may file a pattern or practice suit under § 707 of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-6(a). Second, § 706 of that Act provides that the EEOC may proceed on behalf of the charging party. See 42 U.S.C. § 2000e-5(f)(1). In this case, the EEOC has decided to proceed under both § 706 and § 707.

A. § 707 of Title VII Authorizes the EEOC's Pattern or Practice Suit for a Sexually Hostile Work Environment

The EEOC⁴ may institute an enforcement action under § 707 "[w]henever" it has "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of the rights" protected by Title VII. 42 U.S.C. § 2000e-6(a). The only statutory limitations imposed on the EEOC for filing pursuant to § 707 are the administrative procedures in § 706. See 42 U.S.C. § 2000e-6(e) ("[T]he Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person...