Equal Employment Opportunity Comm'n v. Fairbrook Med. Clinic

• Decision Date: 18 June 2010
• Docket Number: No. 09-1610.,09-1610.
• Citation: 609 F.3d 320
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,v.FAIRBROOK MEDICAL CLINIC, P.A., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

609 F.3d 320

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,v.FAIRBROOK MEDICAL CLINIC, P.A., Defendant-Appellee.

No. 09-1610.

United States Court of Appeals Fourth Circuit.

Argued May 11, 2010.

Decided June 18, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Anne Noel Occhialino, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Kenneth P. Carlson, Jr., Constangy, Brooks & Smith, LLC, Winston-Salem, North Carolina, for Appellee. ON BRIEF: James L. Lee, Deputy General Counsel, Lorraine C. Davis, Acting Associate General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Kristine M. Sims, Constangy, Brooks & Smith, LLC, Winston-Salem, North Carolina, for Appellee.

Before WILKINSON and DAVIS, Circuit Judges, and C. ARLEN BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Reversed and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge DAVIS and Senior Judge BEAM joined.

OPINION

WILKINSON, Circuit Judge:

The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel's conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse.

I.

For purposes of summary judgment, we “view the facts and draw reasonable inferences in the light most favorable” to the non-moving party, here the EEOC. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotation omitted).

A.

Dr. Deborah Waechter graduated from medical school in 1999 and completed her residency in 2002. In December of 2002, she accepted a position as a physician at Fairbrook Medical Clinic, a family medicine practice in Hickory, North Carolina. During the time period relevant to this suit, Fairbrook employed between twenty-four and forty-two people, most of whom were women.

Dr. John Kessel is the sole owner of Fairbrook, and he served as Waechter's immediate supervisor during her entire tenure at the clinic. By Kessel's own estimation, Waechter was an excellent physician. Within a few years of working at Fairbrook, she had between three and four hundred regular patients.

Waechter alleges that Kessel sexually harassed her while she worked at Fairbrook. According to her, the incidents of harassment became so frequent and distressing that she decided to leave the clinic for other employment in early 2006. These incidents are detailed below.

The first incident occurred a few weeks after Waechter started working at Fairbook. In January of 2003, Kessel showed her an x-ray of his hip for the supposed purpose of revealing a hip abnormality that he had suffered since adolescence. In the x-ray, a shadowy image of his penis was highly visible. After describing his hip condition, Kessel pointed to the image of his penis and called it “Mr. Happy.” This comment left Waechter “speechless” and uncomfortable. According to Waechter, Kessel showed this x-ray to other people in the clinic “at least 25 to 30 times,” mostly around the time that he had surgery to correct the abnormality. On about five to ten of these occasions, he referred to the image of his penis as “Mr. Happy.” Other employees report having seen the x-ray as well. For example, Joseph Sigmon, the former pharmacist at Fairbrook, testified that the x-ray was left hanging on a wall for four to six weeks and that Kessel showed it to female drug representatives who came to the clinic.

The next incident occurred in February of 2003. During a staff meeting, Kessel stated that he “was very glad that his wife had had a c-section with their triplets because she still had a nice, tight pussy.” Although Waechter was not present at the meeting, employees who were in attendance later reported the incident to her. On a few occasions, Kessel directly discussed his sex life with Waechter, telling her that he “was glad that [his wife] hadn't had to have a vaginal birth because her muscles were still tight.” When Waechter said that she did not feel comfortable discussing the topic, Kessel said “Well, you're just like one of the guys,” to which she replied “No, I'm not.”

In March of 2003, Kessel approached Waechter to talk about her attire. Kessel reported that a male patient had remarked that Kessel “sure had hired a lady physician with a nice set of breasts.” He then instructed Waechter to be “aware ... of [her] breasts and dress appropriately.” When Waechter asked what the patient had been referring to, Kessel responded that the patient had probably been able to see her nipples through her blouse. Waechter replied that she tried to maintain a professional appearance and did not dress in a manner that would show her nipples.

At some point, Kessel invited Waechter to look at some photographs from his recent vacation to the Caribbean. Waechter agreed, expecting to see innocuous images of beaches or scuba diving. She was shocked, however, to discover a picture of Kessel, his wife, and a few other couples in which the men were wearing Speedos and the women were topless. When Waechter expressed her surprise, Kessel called the photograph “funny” and remarked that he still could not believe that his wife had agreed to have it taken.

In the fall of 2004, Kessel was receiving physical therapy in an examination room in the vicinity of Waechter's work station. He opened the door, emerged from the room without a shirt, and called out, “Hey Deborah, don't you want to come in here?” Waechter refused and went about her business.

In March of 2005, Waechter traveled with her daughter to visit her husband in Washington, D.C., where he was doing an internship. While Waechter was gone, Kessel treated one of her regular patients. According to the patient, Kessel said that Waechter was away on vacation and was “probably screwing around so she can have another baby.” At the end of the visit, he told the patient, “You can follow up with Dr. Waechter when she returns from screwing.” When Waechter returned, the patient informed her of Kessel's remarks. Waechter was “absolutely infuriated” and confronted Kessel. She told him that she considered it very “inappropriate and unprofessional” to speak that way about a colleague, especially in front of a patient. Kessel adamantly denied making the remarks but did not attempt to explain why the patient would have made them up.

Waechter also recalls hearing Kessel tell “dirty jokes” about “two or three times a month” during her time at Fairbrook. Specifically, she remembers one joke in which Kessel pretended to kiss a pair of breasts, moving back and forth between each one. On one occasion, Kessel told a foul joke to a male drug representative in front of Waechter. When the drug representative said he was surprised that Kessel would tell such a joke in front of Waechter, Kessel responded, “Oh, she's just like one of the guys. I just say anything in front of her.” Waechter then interjected that she did not appreciate hearing his jokes.

According to Waechter, Kessel also made demeaning comments about female drug representatives in front of her. On one such occasion, a female drug representative was walking down the hall with her back turned to Kessel. Kessel looked to Waechter and said, “Doesn't she look great for having had three kids? I sure would like a piece of that.” He then gestured as if he were grabbing the representative's buttocks. Waechter protested that the comment was not “very nice.” Unfazed, Kessel stated, “Well[,] she does look great for having had three kids.”

Other employees similarly report that Kessel joked about sex and made demeaning comments about women. Joseph Sigmon recalls that Kessel frequently talked about “oral sex” and “women's breasts” and occasionally used terms like “slut” and “cunt” to refer to female staff and patients at the clinic. According to Sigmon, Kessel made sexually offensive remarks to “[a]nybody, anytime,” whether male or female. He further stated that Kessel delighted in being a “shock jock” and watching women react to his obscene comments. In a similar vein, another employee reported that Kessel used the term “slut” to refer to his own sister.

Of course, Kessel was not the only one who made crude remarks around the clinic. Both employees and patients occasionally did so as well. Waechter herself even made off-color remarks on a few occasions. After one patient told her that her “breasts had grown,” Waechter joked with the patient and later reported the episode to other employees. On another occasion, Waechter authorized her assistant to tape posters of attractive men, some of whom were bare-chested, to the ceiling above where she conducted pelvic examinations on female patients. After seeing the posters during her examination, a patient in her eighties told Waechter that she “hadn't had that much excitement in years.” Waechter later joked about the incident around the office.

B.

Kessel's comments to Waechter became much more personal after she became pregnant with her second child. By October of 2005, Waechter was in her ninth month of pregnancy. On two or three occasions that month, Kessel told her “how big [her] breasts were getting and how fat [she] was getting.” When Waechter complained that these comments were inappropriate, Kessel responded, “Well [,] you know I'm a breast man. I like...