I will be speaking (and presenting articles) on “Sexual, Racial, and Other Harassment in the Workplace” and “ADA and FMLA Update”.

Here is the full agenda, and here is the faculty information. The seminar will provide around 6-8 hours of continuing education credit for lawyers (I don’t know the exact number, but the seminar is a full day).

You can register for the the seminar online. For further information, you can contact Sterling, and their number is 715-855-0498.

Drew M. Capuder (contact information); Voice: 304-333-5261

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

Motion to Dismiss Under Rule 12(b)(6)

The important thing to understand about the appeal to the WV Supreme Court is that the defendants immediately filed a motion to dismiss (under Rule 12(b)(6)) based only on the complaint filed by Ms. Roth–there was no evidence that had been accumulated through depositions, affidavits, and the like. The basis for the motion to dismiss was that Ms. Roth had “failed to state a claim upon which relief may be granted.” That motion is based solely “on the pleadings”, and is based on no other evidence.

A motion to dismiss on the pleadings must assume the truthfulness of the allegations in the plaintiff’s complaint, and argues roughly this: even if everything the plaintiff says is true, she still can’t win, because there is nothing about those allegations that would allow her any recovery in court.

Let’s use this as an example to illustrate a motion to dismiss on the pleadings (under Rule 12(b)(6)):

• Suppose my boss fires me, and hands me a notarized resolution issued by the board of directors of my corporate employer saying: “We hereby fire Drew M. Capuder because his socks don’t match. We hate people that can’t clothe themselves with minimal competence. We infer from that characteristic that such people are incompetent employees. Furthermore, we, the board of directors and management of Drew’s employer, harbor an intense personal hatred for such people. We fire Drew with the greatest joy and abandon.” My boss hands me the board resolution and says “you’re fired, and the company security will escort you out immediately”. I say to my boss, “that’s discriminatory”. My boss replies: “Of course it is–we despise people who can’t dress themselves properly”. My boss, who recorded the termination meeting, then hands me a nicely packaged CD recording of the termination meeting as the company security guard quickly ushers me out of the building.
• I file suit for discrimination and wrongful discharge. I initiate the lawsuit by filing a document called a “complaint” which sets out a brief statement of the facts and the legal theories on which I am relying.
• My employer’s defense counsel looks at my complaint, and says to herself: “I don’t have to answer this silly-assed lawsuit. I will file a motion to dismiss, because there is nothing about Drew’s idiotic allegations that our legal system recognizes as valid legal claims”. So the defense lawyer files a motion to dismiss, based only on the allegations in my complaint, under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. This is the same kind of motion that the defendants filed against Ms. Roth.
• The trial judge reviews the motion to dismiss and my response. The trial judge then takes about 6 nanoseconds to decide that the defendant’s motion should be granted, and–bada bing!–my case is dismissed. This is the same type of decision which the judge made in Ms. Roth’s case (and the correctness of that decision was the issue on appeal).
• The trial judge in my case made the correct decision because, assuming (for purposes of the motion to dismiss) everything I said in my complaint was true, there is nothing about those allegations that establishes any sort of recognized claim for wrongful discharge. In other words, my complaint would not allow me to win in court. It’s as simple as that.
• Contrary to some popular understanding, the law does not prohibit all forms of employment discrimination. The law only prohibits employment discrimination in which the employer’s decision is based on protected characteristics. Those characteristics include race, age, gender, national origin, disability, and religion (and there are other characteristics like certain types of whistle blowing, military service, jury duty, etc.). So if my employer discriminates against me because my socks don’t match, there is nothing about being a fashion moron that constitutes a protected characteristic. My employer is free to lawfully discriminate, and make adverse employment decisions, on that basis. The point of the motion to dismiss in Ms. Roth’s case was that there was nothing about her allegations that involved discrimination based on her sex (gender)–and that was the main issue under review on appeal.

Standards for Dismissal Under Rule 12(b)(6); Iqbal is Rejected

When an employer (or any other defendant) is trying to dismiss a lawsuit under Rule 12(b)(6), the deck is stacked in favor of the employee in the sense that this will be a decision based on only the sufficiency of the allegations in the complaint. The WV Supreme Court has applied these rules in scrutinizing the adequacy of the complaint:

• “liberally construe the complaint so as to do substantial justice”;
• keep in mind that “the preference is to decide cases on their merits”;
• “construe the complaint in the light most favorable to the plaintiff, taking all the allegations as true”;
• dismiss the complaint only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”, and
• the rules concerning pleadings require that the complaint  merely give “fair notice” of the allegations, and the complaint itself is “not required to set out facts upon which the claim is based”.  (This principle arises out of Rule 8(a) which states that a complaint shall contain a “short and plain statement of the claim showing that the pleader is entitled to relief”. Rule 9(b) then states that allegations of “fraud or mistake” shall be stated “with particularity”, but that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” The comparable federal Rule 8(a) was the basis for the US Supreme Court in 1957 formulating the “notice” concept for pleadings in Conley v. Gibson, 355 U.S. 41 (1957).)

This last item, the “fair notice” requirement, is key to understanding this case and dismissal motions under Rule 12(b)(6). The point of the complaint in West Virginia is to give “fair notice” of the allegations, and it is not required to set out the allegations in more detail. The “more detail” is something that the parties explore under the “discovery phase” of the lawsuit when documents are requested, depositions are taken, etc.

The US Supreme Court has recently adopted a more stringent system for evaluating complaints in the Rule 12(b)(6) context (the feds have the same rule), with the decisions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face.

The US Supreme Court held that “bare assertions” are not entitled to be accepted as true in evaluating a motion to dismiss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFeliceCare, Inc., on the other hand, rejected the “more stringent” federal requirement, and stuck with the “fair notice” principles.

The Iqbal decision was a 5-4 split, and has generated a good bit of controversy. Members of Congress have taken steps toward legislatively overturning it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in committee, and hearings have been conducted by the House Judiciary Committee. The Bill has not emerged from the Judiciary Committee. In the Senate, a comparable bill called the “Notice of Pleadings Restoration Act of 2009” (S. 1504) has been introduced, and it has not emerged from the Senate Judiciary Committee. Both of these bills would return federal law to the “notice pleading” principles formulated in Conley v. Gibson, 355 U.S. 41 (1957).

Roth’s Hostile Work Environment Claim

The trial court dismissed Ms. Roth’s claim for hostile work environment, which includes claims for sexual harassment.

To “establish a claim for sexual harassment based upon a hostile or abusive work environment” under WV Human Rights Act, the plaintiff must prove

• 1. The subject conduct was unwelcome,
• 2. It was based on the sex of the plaintiff,
• 3. It was sufficiently severe or pervasive to alter the [plaintiff's] conditions of employment and create an abusive work environment, and
• 4. It was imputable on some factual basis to the employer.

The key element for this appeal was the second element. The trial court determined that the weird circumstance described by Ms. Roth in her complaint, when she allegedly stumbled into an area where her boss and another female employee were in some sort of sexual activity, was not any sort of hostile work environment that was “based on the sex of the plaintiff” (element 2 above). (For this purpose, the courts use “sex” and “gender” interchangeably.)

The WV Supreme Court’s opinion discussed whether these allegations could form the basis for a hostile work environment “based on sex“, and Justice Ketchum’s dissent discusses that as well. I am a bit confused by the Court’s opinions (the majority and the dissent) because some of the analysis seems to assume that the only the facts alleged in support of a hostile work environment are the facts relating to the episode of the boss allegedly being in sexual activity with a female coworker. However, the Supreme Court’s opinion makes it clear that there were significant other allegations that supported a claim for hostile work environment:

Defendant DeFeliceCare authorized, directed and acquiesced in the allowance of pervasive, explicit and habitual harassment which included but is not limited to: subjecting [Ms. Roth] to such sexually explicit conduct, threats of loss of license, loss of employment and termination for unwanted sexually explicit conduct she observed.

The key language in that portion is a “pervasive, explicit and habitual harassment which included but is not limited to” the boss’s alleged sexual activity with the coworker described in the complaint. Based on notice pleading requirements, and if the issue is whether the complaint puts the defendant on notice concerning a claim of hostile work environment or sexual harassment, that allegation alone should end the argument. In other words, there were allegations that there were sexual activities creating a hostile work environment above and beyond the episode involving the boss and coworker.

Another allegation in the complaint that is relevant to this issue is:

Ms. Roth was “subjected to improper and sexually explicit conduct by her superiors including the president and CEO Defendant DeFelice… thereby creating a hostile and abusive environment for employment”.

Again, that is clearly making allegations of a hostile work environment that involve superiors other than Mr. DeFelice. So the complaint’s allegations of hostile work environment were not limited to the boss/co-worker-being-partially-undressed episode.

Ultimately,  the WV Supreme Court concluded that Ms. Roth’s allegations in her complaint were sufficient to satisfy the pleadings requirements for a hostile work environment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sexual Harassment

Ms. Roth also alleged that she was terminated because of the sexual harassment. This is a claim under the WV Human Rights Act for what is generally known as “quid pro quo sexual harassment”, which involves an allegation that a tangible employment decision—here, termination—was related to the sexual harassment. For such a claim, the plaintiff must prove that she was a member of a protected class (here, female), that there was an adverse employment decision (here, termination), and that “but for the plaintiff’s protected status, the adverse decision would not have been made.”

The trial court also dismissed this claim, again on the theory that the complaint did not present any allegation that the termination was based on Ms. Roth’s sex. The WV Supreme Court disagreed and reversed this decision.

The WV Supreme Court discussed whether Ms. Roth’s encounter with her boss and coworker, and the subsequent termination, could be considered “based on the sex” of Ms. Roth, and described a statement made at oral argument by the plaintiff’s attorney, to the effect that a woman might have been fired, and a man might have been retained under the circumstances, because men might view such sexual activity as something to be “admired” (so by inference, there would be no termination), but a woman employee might be disadvantaged under comparable circumstances. The Court described that theory as “speculative at best”, and then focused on what was the real issue: “whether the appellants’ complaint was “sufficiently pleaded”.

For Ms. Roth’s discrimination claim over her discharge, on the issue of whether her discharge was based on her sex, a relevant allegation was that Mr. DeFelice fired Ms. Roth stating that “he did not like how she dressed” and “he did not like the style/color of her hair”. That seems to me to be a pretty gender-based reason for termination (again, that is Ms. Roth’s allegation, and it must be accepted as true in this procedural context).

Ms. Roth’s Claim Discharge in Violation of a Substantial Public Policy

Ms. Roth also alleged wrongful termination under the doctrine first announced by the WV Supreme Court in Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where termination will be actionable if the “motivation” of the employer “is to contravene some substantial public policy principle.” That doctrine has been applied in a number of settings, including whistleblower circumstances, situations where an employee invokes a right such as self defense (in the setting of a store robbery), privacy rights under some circumstances to refuse drug tests, and situations where the employee is terminated because of some testimony in a legal proceeding.

The trial judge decided that the facts did not support any conclusion that there was a “substantial public policy” that the employer was trying to “contravene”.  The WV Supreme Court disagreed and reversed on this decision as well.

Ms. Roth submitted the following three alleged “substantial public policies” at issue which she claimed made the termination unlawful, and the trial court rejected all of them. The WV Supreme Court concluded that the second and third policies could be viable, so that it reversed the decision to dismiss this wrongful discharge claim under the Harless doctrine:

• First: the plaintiff invoked West Virginia statutes concerning public nudity, and the trial court dismissed that as a relevant substantial public policy; and the West Virginia Supreme Court agreed.
• Second: Ms. Roth contended that the sex discrimination and sexual harassment laws under the WV Human Rights Act created substantial public policies, and the West Virginia Supreme Court has previously made it clear under the Harless doctrine that those statutes in fact established substantial public policies which could form the basis of a wrongful discharge claim. However, the trial court implicitly rejected that theory—the trial court didn’t expressly discuss it. The West Virginia Supreme Court disagreed, based on the analysis that I have described above in discussing the hostile work environment claim. This policy and the next (third) policy were raised by Ms. Roth’s counsel in her opposition to the motion to dismiss, and the WV Supreme Court said the trial court should have addressed them in reaching its decision. In other words, the trial court should not have limited its consideration of potential public policies to those described in the complaint.
• Third: Ms. Roth alleged that there was another lawsuit by another female employee for sexual harassment that preceded her own, and in that lawsuit, there had been allegations of a sexual relationship between Mr. DeFelice and the co-worker that was in a state of partial undress with Mr. DeFelice when Ms. Roth walked in right before her vacation. In that other lawsuit, there had been testimony denying the relationship between Mr. DeFelice and the (partially clothed) co-worker. Thus, Ms. Roth had the potential for having testimony in that other lawsuit that could have contradicted the testimony that Mr. DeFelice and the other co-worker were not involved in any sort of relationship. Ms. Roth’s lawyer alleged that DeFeliceCare was violating a substantial public policy in potentially terminating Ms. Roth for her possible testimony in that other lawsuit. The trial court rejected this theory, but the West Virginia Supreme Court disagreed, and concluded that this was a viable theory for a “substantial public policy” being violated. In other words, Ms. Roth’s theory was that she was fired because her observation of the sexual encounter between Mr. DeFelice and the coworker could have been damaging to Mr. DeFelice and his company in that other lawsuit, such that Mr. DeFelice was motivated to terminate Ms. Roth.

So the WV Supreme Court thought the second and third theories above constituted substantial public policies so the dismiss of the Harless claim was inappropriate.

Ms. Roth’s Claim for Retaliation

Ms. Roth also alleged retaliation under the West Virginia Human Rights Act. Retaliation under that Act required that Ms. Roth engaged in some “protected activity” either in the form of (a) opposition to discriminatory behavior, or (b) in the form of participating in connection with some proceeding under the Act. As far as I can tell, the only protected activity alleged by Ms. Roth was the “opposition”, so that was the only type of  protected activity discussed in the WV Supreme Court’s opinion.

The “opposition” protected activity includes “opposition to a practice that the plaintiff reasonably and in good faith believes violated the provisions” of the WV Human Rights Act. The opposition

“must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and must be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have engaged in a protected activity if she complained about being sexually harassed.”

The trial court dismissed this claim, and the WV Supreme Court agreed because Ms. Roth had never “engaged in any protected activity”. She had simply never done anything to express any opposition to any of the sexual conduct she claims to have experienced or heard about.

Ms. Roth’s Claim for Intentional Infliction of Emotional Distress

Ms. Roth also alleged a claim for “intentional infliction of emotional distress“, which is an extremely hard claim to prevail upon in an employment setting. The WV Supreme Court described the claim this way:

One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for bodily harm.

The conduct must be

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

Wow, that sounds tough to satisfy, especially in the workplace, and there are relatively few cases in which plaintiffs have succeeded on that theory. But keep in mind that the issue for purposes of the Supreme Court’s decision was whether Ms. Roth’s pleadings were sufficient to support this claim. The trial court had focused on the fact that there was no allegation that the employer had terminated Ms. Roth in an “outrageous manner”.

But the West Virginia Supreme Court disagreed, and said that the following allegations in the complaint were sufficient::

• 1. Mr. DeFelice called Ms. Roth and asked her to come to the office, and when she complied with that request she was placed “by her employer into unwantedly observing Mr. DeFelice Ms. Kelly in a sexually compromising position.”
• 2. Because of that observation, Mr. DeFelice “threatened” Ms. Roth “not only with termination from her employment, but with possibly losing her respiratory therapist license, which was her means of making a living.”
• 3. Ms. Roth was then terminated “within the same week”, allegedly because Mr. DeFelice “did not like how she dressed or the style and color of her hair.” (The Court thought it was significant that there was a close proximity in time for these allegations.)

Again, this is not the same thing as saying these allegations alone, without any other evidence, would satisfy the requirements for intentional infliction of emotional distress at trial. but it is to say that, with these allegations in the complaint, the Court could not conclude “beyond doubt” that Mr. Roth “can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Thus, the WV Supreme Court reversed the trial court’s decision to dismiss the claim for intentional infliction of emotional distress.

Written by Drew M. Capuder (contact information); Voice: 304-333-5261

The Fourth Circuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unanimous decision written by Judge Roger Gregory in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Circuit didn’t have much difficulty reaching the conclusion that, for any claim alleging a hostile work environment (including sexual harassment), you can’t succeed if all of the misconduct about which you complain occurred at work when you were not at work.

Twenty Eight Years of Litigation!!!

This case grows out of an incredibly long history of litigation (including several different lawsuits and appeals (some of which were successful)) filed by Ms. Pueschel against her employer, the Federal Aviation Administration ("FAA"). The litigation started in 1981 and ended with this Fourth Circuit decision in 2009 (I am not kidding, and I am not sure this decision marks the end of all of her litigation).

I’ll fast-forward past the first decade or so of litigation. In 1994, Ms. Pueschel went on leave without pay ("LWOP") from her job at the FAA after she claimed to suffer a "stress-related episode at work". She claimed that this required her to leave work permanently. She remained on LWOP until she was terminated in 1999 because of her inability to work, and she never returned to work at the FAA.

Ms. Pueschel filed a number of discrimination administrative charges between 1997 and 1999, and the key allegation that I will focus on in this article was that she was subjected to a hostile work environment in 1997 and 1998 (keeping in mind that she was not at work after 1994). Ms. Pueschel claimed that the hostile work environment was based on her gender and disability, and based on the fact that she had filed charges of discrimination against the FAA. These charges led to a lawsuit in which the trial judge granted the FAA’s motion for summary judgment on Ms. Pueschel’s hostile work environment claim under Title VII of the Civil Rights of 1964.

So the Fourth Circuit had to decide whether Ms. Pueschel had a viable hostile work environment claim based on her gender and her disability and her prior charges of discrimination.

I described Ms. Pueschel’s claim at the beginning of this article as "sexual harassment" for the sake of convenience to describe the issue, but her hostile work environment claim was more complicated than that. She alleged that co-workers were making ugly, profane, and degrading comments about her, and the comments were not "sexual" in a conventional sense. The insults were that she was a "fucking bitch", "nothing but a bitch", a "useless bitch", and other similar statements.

Fourth Circuit’s Analysis

The first important thing about the Fourth Circuit’s analysis is that it assumed that a hostile work environment claim can be predicated on any protected characteristic under the employment discrimination laws. It described the basic requirements (prima facie case) of a hostile work environment claim, and said the plaintiff must demonstrate that the alleged conduct:

• was unwelcome;
• resulted because of her gender, disability, or other protected activity;
• was "sufficiently severe or pervasive" to alter the conditions of her employment; and
• was imputable to her employer.

(my emphasis is added). Some courts have questioned whether hostile work environment claims can be based on any characteristics other than gender and race. But the Fourth Circuit’s language in element 2 above ("based on gender, disability, or other protected activity") clearly recognizes that a hostile work environment may be motivated by most or all of the protected characteristics under the employment discrimination laws. That means that hostile work environment claims in principle may be based on gender (conventional sexual harassment), race (racist comments), disability, age, national origin, and religion.

The second important thing about the Fourth Circuit’s analysis is that it concluded–perhaps stating the obvious–that Ms. Pueschel could not prevail on her hostile work environment claim because she left her FAA employment permanently starting in 1994, and all of the abusive conduct occurred at work in 1997 and 1998 after her employment ended. In other words, she was not present at work, so the insulting statements at work could not create a hostile or abusive work environment for her.

Lingering Issues

The holding in this case does not mean that the plaintiff-employee must always be physically present while offensive workplace behavior is occurring. Abusive conduct may be relevant and admissible in various settings where the plaintiff is not physically present, but these circumstances will generally require that the plaintiff still be employed at the time of the events. Here are the scenarios where the conduct may still support a hostile work environment claim (and I’ll use sexual harassment conduct as the example):

• Boss makes sexually offensive statements about female employee (plaintiff) while plaintiff is not present, but another employee later tells the plaintiff about the statements. Courts don’t have a lot of trouble concluding that this sort of after-the-fact knowledge about the harassing statements contributes to a hostile work environment.
• Boss makes sexually offensive statements about plaintiff, no one ever tells plaintiff, and boss denies ever making other sexually offensive remarks directly to the plaintiff. Under those circumstances, even though the boss’s statements did not contribute to a hostile work environment for the plaintiff, the statements outside of the presence of the plaintiff are likely to be admissible on the disputed issue of whether the boss ever made sexually offensive statements directly to the plaintiff.
• Boss sexually harasses other women (other than the plaintiff) outside the presence of the plaintiff. That harassment may be admissible in plaintiff’s case under 2 circumstances: (a) plaintiff claims to have been told about that harassment while she was still working for employer, and she credibly claims her after-the-fact knowledge contributed to the hostile work environment, and (b) even if plaintiff did not learn about it after the fact, the harassment of other women may be admissible on the disputed issue of whether the boss sexually harassed the plaintiff.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

Doctor on Doctor Harassment at Fairbrook Medical Clinic

Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).

Dr. Waechter’s Lawsuit

Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a "hostile work environment", and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.

After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was "not particularly frequent," mostly involved "the type of crude jokes that do not run afoul of Title VII," did not cause Dr. Waechter to miss work or feel "severe psychological stress," and did not include inappropriate touching or physical threats.

The Fourth Circuit reversed and sent the case back for trial, concluding that the EEOC on behalf of Dr. Waechter had presented evidence from which a jury could have reasonably concluded that Dr. Kessel’s behavior was severe or pervasive enough to create a hostile work environment.

Issues on Appeal

The central issues for the Fourth Circuit to address on appeal were whether Dr. Kessel’s conduct (a) was based on Dr. Waechter’s gender and (b) was "sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment."

Fairbrook Medical Clinic made two familiar arguments that arise frequently in sexual harassment claims: (a) Kr. Kessel was just a "rude & crude" kind of guy who wasn’t really making expressly sexual comments aimed at Dr. Waechter’s gender, and (b) even if the behavior was expressly sexual,  Dr. Kessel’s comments weren’t frequent and severe enough to create a hostile work environment.

Dr. Kessel’s Comments Were  "Based On" Dr. Waechter’s Gender

Since sexual harassment law requires that the behavior be based on the plaintiff’s gender, sometimes these claims fail because the comments consist of profanity or crude behavior that doesn’t really target someone’s gender. For example, statements or jokes that include profanity are sometimes not viewed as sexual harassment by the courts, because they are not "sexual comments" targeting someone’s gender.

But the Fourth Circuit "easily dismissed" Dr. Kessel’s characterization of his behavior. The Fourth Circuit made a number of observations about Dr. Kessel’s conduct that helped define his behavior as ‘sexual" and targeted at Dr. Waechter’s gender:

• Dr. Kessel used "sex-specific and derogatory terms" intended to "demean women";
• He used "cunt" and "slut" to refer to women at the clinic;
• He talked about "female body parts" in graphic terms;
• Several times he made "explicit or implicit proposals of sexual activity";
• He asked Dr. Waechter if she "had a better libido while she was pumping her breasts" (she had had her second child and was breast feeding);
• He said he thought she was probably a "wild thing" in bed; and
• He asked to "view and pump her breasts".

So the Fourth Circuit concluded that a reasonable jury could have concluded that Dr. Kessel’s comments were "based on sex" and that their intimate nature was intended make women in his employ feel "acutely embarrassed and uncomfortable".

Dr. Kessel’s Comments Were "Severe or Pervasive"

So the next issue was whether Dr. Kessel’s comments were "severe or pervasive" enough to create a hostile work environment. That is an important requirement, and many sexual harassment claims fail on it. For example, even if the defendant’s conduct was clearly "based on sex", it may not be actionable if it fairly infrequent, or if it is not terribly severe.

The Courts have said that "not all workplace conduct that may be described as "harassment" is severe enough to constitute a hostile work environment.  The conduct must be both (1) "objectively hostile or abusive", and (2) the victim must "subjectively perceive it as such". Because Fairbrook Medical Clinic did not dispute the fact that Dr. Waechter subjectively perceived the conduct as abusive (the second requirement), the Fourth Circuit focused on the first requirement: where the conduct was "objectively hostile or abusive".

On this "objective prong" ("objectively hostile or abusive"), the Fourth Circuit noted there is no "mathematically precise test" for figuring out whether the conduct was "objectively hostile or abusive", and you look at the harassment from the "perspective of a reasonable person in the plaintiff’s position, considering all the circumstances".

The "circumstances" include the "frequency of the discriminatory conduct"; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonable interferes with an employee’s work performance." The Court should consider the "social context in which particular behavior occurs and is experienced by its target". The courts should also keep in mind that Title VII does not impose a "general civility code", and "merely crude behavior" does not constitute sexual harassment.

On that line between "sexual harassment" and "merely crude behavior," the Fourth Circuit said there is a difference between "generalized" statements that "pollute the work environment" and "personal gender-based remarks" that "single out individuals for ridicule". Activities like "simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct".

Fairbrook Medical Clinic argued that Dr. Kessel’s behavior was not "severe", that Kessel was merely "crude", other employees and patients told off-color jokes, employees in a medical setting deal with "human bodies" every day, and Dr. Waechter sometimes engaged in off-color comments.

The Fourth Circuit concluded that Dr. Kessel’s behavior was "objectively hostile or abusive". Dr. Kessel’s remarks were "highly personal", such as a broad range of comments about the size of Dr. Waechter’s breasts, wanting to see and pump her breasts, asking about her sex drive, speculating that she was a "wild thing" in bed, and comments about his genitals and his wife’s genitals.

The Fourth Circuit rejected the assertion that the context of a medical clinic somehow negates the "severity" of Dr. Kessel’s behavior.

The Fourth Circuit also rejected the argument that Dr. Kessel’s conduct was "not particularly frequent". Dr. Kessel’s conduct was "at least a regular occurrence"; he told "foul jokes" 2 or 3 times a month; Dr. Kessel displayed an "image of his penis" 25-30 times with 5 to 10 descriptions of his penis as "Mr. Happy"; and he made comments about Dr. Waechter’s breasts at least 1-2 times a week from December 2005 to January 2006.

Under those circumstances, a "reasonable person" in Dr. Waechter’s position" could have concluded that the "harassment had become a persistent feature of her work environment."

The Fourth Circuit also rejected the argument that the harassment did not cause Dr. Waechter to miss work and did not adversely affect her performance (Dr. Kessel acknowledged that she was a very good doctor).

Conclusion

The Fourth Circuit’s decision is a good resource for looking at that imprecise line between "merely crude behavior" and actionable sexual harassment.

The federal trial judge concluded that there was simply no way a reasonable jury could have concluded this was unlawful sexual harassment, so he dismissed the case. The Fourth Circuit reversed, and the case will go back to the trial judge to head towards trial.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

Although all 3 of those employees reported, in response to questions by Metro’s human resources investigator, sexually offensive behavior by Mr. Hughes, none of them initiated any sexual harassment complaint themselves.

As a result of its investigation, Metro took no action against Mr. Hughes, the harasser. On the other hand, Metro fired Ms. Crawford and the other two employees who answered the HR employee’s questions–all 3 were fired shortly after the investigation into Mr. Hughes was concluded. Ms. Crawford had been employed at Metro for 30 years.

Case Dismissed: Ms. Crawford Didn’t "Oppose" Sexual Harassment

Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission, and then filed suit in federal court in Tennessee, claiming she had been fired in retaliation for her reporting of Mr. Hughes’ sexual harassment.

The Trial Court dismissed her lawsuit, and the US Court of Appeals for the Sixth Circuit affirmed the trial court’s decision. The Sixth Circuit agreed that the lawsuit should be dismissed because Ms. Crawford did not initiate her own sexual harassment complaint, but instead simply responded to questions initiated by Metro in Metro’s investigation into the rumors about Mr. Hughes.

Supreme Court Reinstates Ms. Crawford’s Case, Defining "Opposition"

The US Supreme Court concluded that Mr. Crawford satisfied the retaliation provision of Title VII and reinstated her case. This is why.

Title VII‘s retaliation provision, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice for an employer to discriminate against" an employee because:

• the employee has "opposed any practice made an unlawful employment practice " by Title VII (this is called the "opposition clause"), or
• the employee has "made a charge, testified, assisted, or participated" in any "investigation, proceeding, or hearing" under Title VII (this is called the "participation clause").

In addressing the "opposition clause": The Sixth Circuit concluded Ms. Crawford didn’t "oppose" any discriminatory practice because she didn’t file any complaint herself, and because "opposition" requires "active, consistent" opposition activities. Merely responding to the HR employee’s questions, according to the Sixth Circuit, was not "opposition", so the employer was free to take adverse or retaliatory action against Ms. Crawford. The US Supreme Court rejected this reasoning, as I will discuss below.

The Sixth Circuit also addressed the "participation clause" and concluded Ms. Crawford had no protection against retaliation because she had not "participated" in any complaint proceeding under Title VII. The US Supreme Court did not address this ruling.

The US Supreme Court rejected the Sixth Circuit‘s reasoning on the "opposition clause" and reinstated Ms. Crawford’s case.  The US Supreme Court said the word "oppose" in Title VII should be given its "ordinary meaning", in part based on a dictionary definition, to "resist or antagonize", or to "contend against; to confront; resist; withstand".

The US Supreme Court easily found that Ms. Crawford’s responses to the HR employee’s questions constituted "opposition" to Mr. Hughes’ sexually inappropriate behavior. There was "no reason to doubt" that a person can "oppose" by "responding to someone else’s question just as surely" as by "provoking the discussion", and nothing in Title VII requires a "freakish rule" ("ouch!!" says the Sixth Circuit) protecting an employee who "reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question".

Because the US Supreme Court found Ms. Crawford’s case should be reinstated because she satisfied the "opposition clause," the US Supreme Court did not address the question of whether her statements satisfied the "participation clause".

Justices Alito and Thomas, in their opinion concurring in the result, agreed with the "primary" rationale in Justice Souter‘s majority opinion, but were concerned that some of the language in the majority opinion (referencing part of a dictionary definition) could protect an employee who "silently" opposed discriminatory behavior. They thought there would have to be some public manifestation of the opposition, and they thought Ms. Crawford did so.

Prepared by Drew M. Capuder (contact information)