_______________________________________________________ Appeal No. 09-1610 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. FAIRBROOK MEDICAL CLINIC, P.A., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of North Carolina The Honorable Richard L. Vorhees, Presiding _______________________________________________________ OPENING BRIEF OF PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S SEXUAL HARASSMENT CLAIM . . . . . . . . . . . . . . . . .16 A. Kessel's harassment was based on Waechter's sex . . . . . . . . . . . . 17 B. A reasonable jury could find that Kessel's harassment was sufficiently severe or pervasive from an objective standpoint to create a hostile or abusive work environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 C. A reasonable jury could find Fairbrook liable for the harassment . . . 33 1. Alter Ego . . . . . . . . . . . . . . . . . . . . . . .33 2. Ellerth/Faragher Affirmative Defense . . . . . . . . . 35 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .C-1 TABLE OF CONTENTS CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Ackel v. Nat'l Commc'n, Inc., 339 F.3d 376 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 13 Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 13 Abeita v. Transamerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . .28 Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . .22 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 21,22 Dees v. Johnson Controls, 168 F.3d 417 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . .21,22 EEOC v. Cent. Wholesalers, -- F.3d -- , 2009 WL 2152348 (4th Cir. 2009) . . . . . . . . . . . . 30 EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . 13,19,29 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) . . . . . . . . . . . . . . . . . 20,25,32,37 EEOC v. Sam & Sons Produce Co., Inc., 872 F. Supp. 29 (W.D.N.Y. 1994) . . . . . . . . . . . . . . . . . . . . 28 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 33,35 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . . . passim Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 31 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) . . . . . . . . . . . . . . . . . 24,25,27,32 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) . . . . . . . . . . . . . . . . . .47, 49, 54 Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 16 Mallinson-Montague v. Pocrnick, 224 F.3d 1224 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . .34 Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Moser v. MCC Outdoor LLC, 256 Fed. Appx. 634 (4th Cir. 2007) . . . . . . . . . . . . . . . 25,26,27 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 24 Oncale v. Sundownder Offshore Servs, Inc., 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 43-44 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 36 Spicer v. Va. Dep't of Corr., 66 F.3d 705 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 22 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 23 Wooten v. Federal Express Corp., 2009 WL 928177 (5th Cir. April 7, 2009) . . . . . . . . . . . . . . . 23 Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . 17,28,32 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . .1 42 U.S.C. § 2000e . . . . . . . . . . . 1 42 U.S.C. § 2000e-2(a)(1) . . . . . 17,18 Rules Fed. R. Civ. P. 56(c) . . . . . . . . .16 Fed. R. App. P. 4(a)(1)(B) . . . . . . 1 STATEMENT OF JURISDICTION Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this enforcement action against Defendant- Appellee Fairbrook Medical Clinic, P.A. ("Fairbrook") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). The EEOC filed this lawsuit in the U.S. District Court for the Western District of North Carolina. JA5.<1> The district court had jurisdiction over the EEOC's suit under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On April 2, 2009, the district court entered final judgment against the EEOC disposing of all claims. JA473. The EEOC filed a timely notice of appeal on May 28, 2009. JA474. See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court erred in concluding as a matter of law that no reasonable jury could find that charging party Deborah Waechter was subjected to a hostile and abusive working environment because of her sex. STATEMENT OF THE CASE On August 23, 2007, the EEOC filed a complaint in the district court, alleging that CW violated Title VII by subjecting Waechter to a sex-based hostile work environment. JA5. The EEOC requested injunctive relief, compensatory and punitive damages, and costs. JA7-8. The Commission also requested a jury trial. JA8. Fairbrook subsequently filed a motion for summary judgment, and the EEOC filed a response. R.12, 14.<2> On April 2, 2009, the district court entered an order granting summary judgment in favor of Fairbrook and entered final judgment against the EEOC. JA465, 473. This appeal followed. STATEMENT OF FACTS A. Background Dr. Deborah Waechter, M.D., is a family practice physician. JA27. Her patients and their families have called her an "excellent" "professional, compassionate and caring physician." JA415; JA418. In 2002, Waechter was recruited by Frye Regional Hospital, which is in Hickory, North Carolina, to work at a primary care center. JA21-22. After a few months at the center, in December 2002 Dr. Waechter began working for Fairbrook Medical Clinic, which is a family practice with about twenty employees, both male and female, owned solely by Dr. Kessel. JA21; JA250-51; JA29; JA58. Kessel had sole supervisory authority over Waechter. JA400. Both Kessel and the staff at Fairbrook viewed Waechter as an excellent physician, JA160 & JA443, whose patients "all liked her." JA446. Within weeks of starting work, Kessel showed Waechter an x-ray of his hip under the pretense that he wanted to show her a hip problem he had had since adolescence. JA59. Kessel's "penis was very visible on the x-ray and at the end of showing [Waechter] the x-ray," Kessel "pointed to his penis" and called it "Mr. Happy." JA59-60. The incident left Waechter "speechless" and uncomfortable. JA61. Waechter remembers Kessel showing the x-ray to others "at least 25 to 30 times" during her three years at Fairbrook and that he called his penis "Mr. Happy" between 5 and 10 times. JA60, JA67-68. Most of those incidents occurred between May and July 2004 when Kessel was showing others the x-ray in advance of surgery to correct his hip abnormality. JA67. Other employees corroborated Waechter's testimony about the x-ray. JA309-10 (Sigmon Depo.) (testifying that the x-ray showing Kessel's penis was on the wall for four to six weeks and that Kessel would show it to female drug reps); JA364-65 (Powell Depo.) (she saw the x-ray with Kessel's penis on it). Waechter testified that Kessel "would tell very vulgar jokes to [] drug reps" and "would make demeaning comments to female drug reps, both to their face and behind their back." JA57. Waechter could recall the specifics of only one joke, which Kessel told "a lot," depicting a woman's breasts going back and forth like windshield wipers and Kessel kissing them. JA97-98. Waechter heard Kessel make jokes like that "probably two or three times a month," "[s]ometimes more, sometimes less." JA98. On one occasion, Kessel told a dirty joke to a male drug rep in Waechter's presence. JA100. When the drug rep said he "couldn't believe [Kessel] would tell such jokes in front of [Waechter]," Kessel said "Oh, she's just like one of the guys. I can say anything in front of her." JA100. Waechter responded, "Well, I don't really appreciate hearing these jokes." JA100. As for the demeaning comments about female drug reps, Waechter recalled one time in 2005 after a female drug rep started walking down the hall away from Kessel and Waechter, Kessel said, "Doesn't she look great for having had three kids? I sure would like a piece of that," and he gestured with his hands as if he was grabbing the buttocks of the drug rep. JA113. Waechter told Kessel his comment was "not nice" and she did not know why he made it to her. JA114. His response was, "Well[,] she does look good for having had three kids." JA114. Waechter's co-workers also testified to sexually explicit or demeaning comments that Kessel openly made about women. A pharmacist named Jospeh Sigmon who worked at Fairbrook for many years testified that Kessel talked about oral sex and breasts to "anybody, anytime," JA314, occasionally called female patients and staff "slut" and "cunt," JA321-22, routinely made comments about the physical features of female patients and staff, and essentially delighted in being a "shock jock," i.e., in watching the reaction of women to his obscene comments, JA323-24. Employee Nancy Sailors also heard Kessel refer to his sister as a "slut." JA425. In February 2003, co-workers told Waechter that Kessel had said in a staff meeting that "he was very glad that his wife had had a C-Section with their triplets because she still had a nice, tight pussy." JA68-69. Similarly, employee Janet Powell also overheard Kessel state in the break room once something about "how tight his wife's pussy was as a result of the C-Sections," which Powell relayed to Waechter over lunch one day. JA362-63. Although Kessel "toned it down a little bit" for Waechter, a "couple of times" Kessel made similar comments to Waechter. JA70. Waechter testified that "just out of the blue" - although she did not recall the exact dates - Kessel would bring up his sex life with his wife, stating that "he was glad that [his wife] hadn't had to have a vaginal birth because her muscles were still tight." JA70. Waechter told Kessel she felt uncomfortable discussing his private sexual life and asked him not to talk about it with her at any time. JA71. In response, Kessel just said, "Well, you're just like one of the guys," to which she responded, "No, I'm not." JA71. In March 2003, Kessler told Waechter that a male patient told him, in reference to Waechter, "[you] sure had hired a lady physician with a nice set of breasts," and Kessel told her to "be aware . . . of [her] breasts and dress appropriately." JA71-72. When Waechter asked what specifically the patient was referring to, Kessel said that Waechter's nipples had evidently been showing through her blouse. JA72. Waechter, who normally wore pants to work and testified that she is "not the kind of person that dresses in a way that you're going to see" her nipples, told Kessel that she wanted to be professional and avoid that. JA72-73. Other individuals also testified that Waechter always dressed appropriately. JA415 (McLellan Decl. ¶3) (stating that Waechter "at all times dressed professionally and somewhat conservatively" and that she never saw Waechter "wearing clothes that [brought] inappropriate attention to her breasts"); JA417-418 (Moore Decl. ¶ 7) (Waechter always dressed professionally and never brought inappropriate attention to her breasts); JA445 (Fagan Depo.) (Waechter dressed appropriately and never provocatively). At some point, Kessel asked Waechter to come over to his work station and showed Waechter a picture of his wife and other women topless at a beach. JA104-05. Another time at a staff Christmas luncheon Kessel received a breast- shaped stress ball, which he squeezed and mashed, saying something like "he could enjoy this." JA294-95. Waechter's assistant, Dawn Samaroo, testified that the ball, which was a gag gift from an employee, "was inappropriate" and that she thought Waechter was at the luncheon. JA295. Kessel, however, laughed and said it was a "great gift." JA286. Samaroo was also present when another incident occurred in the fall of 2004. Samaroo and Waechter were discussing a work matter when Kessel emerged shirtless from an exam room where he was evidently undergoing physical therapy "and [ ] just kicked his little chest up in the air, like he normally does, like he's macho" and called out, "Hey Deb" "Why don't you come in and join me?" JA299; see JA74-75 (Waechter Depo.) (testifying that Kessel said, "hey Deborah, don't you want to come in here?"). Waechter ignored him. JA75. Waechter also told Samaroo that Kessel sometimes looked at Waechter in a way that made her uncomfortable. JA404-05. In March 2005 Waechter went with her daughter to Washington, D.C., to visit her husband, who was in graduate school there. JA77. When she returned, a female patient told her that she had seen Kessel for an appointment while Waechter was away and that he had said that Waechter had gone to Washington, D.C. to see her husband and was trying to get pregnant, so they "would probably be screwing the whole time." JA77-78. At the end of the exam, Kessel said to the patient, "you can follow up with Dr. Waechter when she returns from screwing." JA417. Waechter was "absolutely infuriated" and confronted Kessel, telling him that his comments were "inappropriate and unprofessional." JA79. Kessel said "he would never do something like that," JA79, but both the patient and her fiancé submitted affidavits corroborating Waechter's testimony. See JA415-16 (McLellan Decl. ¶6) (stating that Kessel's comments "shocked" and "embarrassed" her and that she felt uncomfortable having him examine her); JA417-18 (Moore Decl. ¶ 5) (calling Kessel's comments "inappropriate and unprofessional"). In October 2005, when Waechter was nine months pregnant, Kessel told her two or three times "how big [her] breasts were getting and how fat [she] was getting," which she found inappropriate. JA81. When she told him that, Kessel responded, "Well you know I'm a breast man. I like breasts." JA82-83. Waechter's son was born at the end of October, and she began a six-week maternity leave. JA84-85. Waechter returned to work in December. JA84-85. The very first comment Kessel made to her upon her return was, "You sure have slimmed down, except in your breasts." JA93. Because Waechter was still nursing her son when she returned to work, she spent about 20 minutes in her office during her lunch break pumping breast milk for him. JA88. Occasionally, maybe five or ten times, she also pumped around 3:30 PM if she had a break between patients. JA88-89. Upon her return in December and through January 2006, Kessel made "numerous references" to her about her breasts and/or pumping; Waechter testified that they occurred "at least once or twice per week." JA111-12. On "several occasions" Kessel asked if he could "help [her] pump [her] breasts." JA94; see JA161. Kessel also asked if Waechter "had a better sexual libido while [she] was pumping," and another time he said she was "probably a wild thing in bed." JA94; JA161. His other comments included, "when are you going to let me help you pump your breasts?" and "Are you going to let me see your breasts? I sure hope you let me do so before you stop pumping." JA94; JA161. Waechter repeatedly told Kessel his conduct was "unprofessional and inappropriate and needed to stop." JA161; JA112. Additionally, one time when Waechter emerged from her office after pumping, Kessel introduced Waechter to a male drug rep and said, "Isn't she beautiful? She's so beautiful," which Waechter found to be "a strange comment for him to make in front of somebody that I obviously didn't know." JA102. By this point, Waechter found the harassment "stressful" and "very distressing." JA119. After concluding that "it was not a good working environment" for her, she began in January 2006 to think about leaving Fairbrook. JA119. In early February 2006, Waechter was sitting in the break room with another employee named Debra Sharpe. JA87. Kessel came in and said that he had gone to Waechter's office looking for her and saw a drop of breast milk on her desk and "he wanted to lick it up." JA87.<3> Waechter was "very much upset" and told Kessel his comment was "disgusting" and "gross." JA86-87. She also complained to others about it. See JA450 (Powell Depo.) (stating that Waechter told her about an incident when Kessel "said something to th[e] effect" that he wanted to "lick[] up the breast milk" that had spilled on the counter). Although Kessel did not repeat his comment about wanting to "lick [ ] up" Waechter' breast milk, he continued to make comments about her breasts and pumping her breasts. JA87-88. The "last straw" occurred on February 13, 2006, when Kessel and Waechter were discussing a contract dispute she had with Frye Regional Medical Center. JA161. Kessel told Waechter, "You owe me big for helping you with the Frye thing. Are you going to let me help you pump [your breasts]?" JA161. On February 17, 2006, Waechter tendered a resignation letter thanking Kessel for the opportunity to work for him and explaining that she was taking a new position closer to her home. JA158. Waechter did not complain about Kessel's harassment in the letter because she was not going to be able to start her new job until March 20, 2006, and she was the sole breadwinner in her family. JA135-36. Although the new job also paid better, JA30 & JA130, when asked in her deposition if she would have been interested in the new job had there not been any harassment, Waechter testified, "I don't think I would have been near as interested," as she had passed up two other job offers before the harassment escalated when she returned from maternity leave. JA120. Although Fairbrook had a policy and procedure manual containing an anti- harassment policy, Waechter testified that she never received or saw a copy of it. JA156, JA115. Lola Fagan, an officer manager/bookkeeper who worked for Fairbrook for thirty-seven years before her July 2005 retirement, testified that she never received any training on sexual harassment in all her years at Fairbrook. JA440-41. Similarly, Sheila Cook, who took over as office manager, testified that Fairbrook had no organized sexual harassment training. JA246-47; JA430. Fairbrook's anti-harassment policy requires employees to report harassment to "their immediate supervisor" and then up the chain to "the partners of Fairbrook Medical" and then "the human resources representative." JA156-57. The policy also promises that complaints "will be investigated promptly." JA156. Cook testified she was the "human resources representative" to whom harassment complaints were supposed to be directed. JA251. She also testified that Kessel was Waechter's "immediate supervisor" under the policy, but that she was unsure what "the partners of Fairbrook Medical" meant, since Kessel was the sole owner. JA249-50. As Cook admits, Waechter complained once to her about Kessel's comments. JA96; JA252. Cook failed to undertake any investigation, or even ask Waechter any questions about the harassment, because she did not think Kessel's conduct was actionable. JA432-33. Instead, Cook told Waechter that she should talk to Kessel about it and, if that did not work out, come back to talk to Cook. JA254. Waechter did not complain about Kessel's other conduct to Cook because Cook herself heard Kessel make vulgar jokes and because Cook reported to Kessel and therefore had no authority over him. JA108; JA96. Additionally, Cook was not the personnel manager; that position had fallen to Kessel's sister-in-law, Sherry Bartnicki. JA96; JA51. Waechter believed she complained once to Bartnicki about the "breast and fat comments" when she returned from maternity leave, JA85-86, but Waechter did not discuss the harassment more with Bartnicki because she was Kessel's sister-in-law. JA86. After Waechter left, her new employer sought references from physicians Waechter had worked with in the past before granting Waechter staff privileges. JA137. Waechter gave them Kessel's name, and he filled out a recommendation form for her. JA159. Kessel rated Waechter "excellent" in each of thirteen categories assessing everything from her medical knowledge and patient relationships to her appearance. JA159-60. In June 2006, Waechter filed a charge of discrimination. JA161. In September 2006, Frye sued Waechter for breach of contract relating to her relocation agreement. JA143. Waechter subsequently filed a third-party complaint against Fairbrook, and the action was subsequently settled in 2007, with both Waechter and Fairbrook paying money to Frye. JA145-46. The EEOC filed this lawsuit in August 2007. JA1 (docket). B. District Court Decision The district court concluded that no reasonable jury could find that Kessel's conduct created an objectively hostile or abusive work environment. Citing Ocheltree v. Scollon Prods., Inc., 152 F.3d 856 (4th Cir. 2003), EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001), and Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002), the court concluded that the conduct in this case was not "severe or pervasive enough to clear the 'high threshold' established by" this Court for what constitutes actionable harassment. JA471. Because Kessel's comments occurred "at most" once or twice a week, the court said, they were "not particularly frequent." JA471. The court also concluded that, with the exception of Kessel's request to pump Waechter's breasts, his actions "were not particularly severe," as much of his conduct was not directed at Waechter "or [involved] the type of crude jokes that do not run afoul of Title VII." JA472. Finally, the court said, the harassment was not physically threatening, did not involve any touching, and did not cause Waechter to miss work or feel "severe psychological stress." JA472. SUMMARY OF ARGUMENT The district court erred in granting summary judgment on the EEOC's sexual harassment claim. To survive summary judgment, the EEOC had to create a genuine issue of fact as to whether Fairbrook subjected Waechter to unwelcome harassment based on her sex that was sufficiently severe or pervasive to alter the conditions of her employment and create a hostile or abusive working environment, from both a subjective and objective standpoint, and that Fairbrook was liable for the harassment. Fairbrook conceded below that the harassment was unwelcome and that Waechter subjectively viewed it as hostile or abusive but disputed that it was based on Waechter's sex, was objectively hostile or abusive, or imputable to Fairbrook. Contrary to Fairbrook's assertion below, the EEOC's evidence was more than sufficient for a jury to find that Kessel's conduct was based on Waechter's sex, as much of it concerned Kessel's desire to see or touch Waechter's breasts, comments about her breast size, and other sexual innuendo. The EEOC also offered sufficient evidence to allow a reasonable jury to find that Waechter reasonably found the harassment to be hostile or abusive. Viewed in the light most favorable to the EEOC, the evidence shows that while Waechter worked at Fairbrook, Kessel subjected her to a continuous barrage of dirty jokes and sexual comments that escalated after the birth of her second child. Kessel's conduct included telling dirty jokes 2-3 times a month, telling Waechter several times he was glad his wife had had a C-Section because her "muscles were still tight," showing her and others an x-ray of his hip that revealed his penis and calling it "Mr. Happy," telling "very vulgar jokes" to drug representatives, making demeaning comments about female drug representatives, commenting to a patient about Waechter's sex life, and commenting several times on the size of Waechter's breasts. After Waechter returned from maternity leave, Kessel regularly asked her if could help pump her breasts or see her breasts. He also told her he wanted to "lick . . . up" a drop of breast milk from her desk and, after telling Waechter that she "owed him big" for his help on a legal matter, asked again "when [she] was going to let him pump [her] breasts." A reasonable jury could easily find that this conduct created a hostile environment because of its severity and frequency, particularly because Kessel was the sole owner of Fairbrook. A jury could also find that the harassment interfered with Waechter's ability to treat her patients and perform her job, and, based on evidence the harassment prompted her to seek and accept a new job, that it discouraged her from staying on the job. Taken as whole, then, a jury could conclude that the harassment was actionable. Finally, a reasonable jury could find Fairbrook liable for Kessel's harassment. The Supreme Court and numerous courts have recognized that where, as here, the harasser is the alter ego of the employer, liability is automatic. Even assuming, arguendo, that Kessel was not the alter ego of Fairbrook - despite being its sole owner - a reasonable jury could still find Fairbrook liable because it cannot establish the Ellerth/Faragher two-prong affirmative defense. Accordingly, this Court should remand this case for trial. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S SEXUAL HARASSMENT CLAIM. In reviewing the district court's grant of summary judgment, this Court applies a de novo standard of review. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006). Under this standard, summary judgment is appropriate only if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To overcome Fairbrook's motion for summary judgment for a sex-based hostile work environment under Title VII, the EEOC had to establish a factual question as to whether Kessel's conduct was (1) unwelcome, (2) based on her sex, (3) sufficiently severe or pervasive to alter the conditions of Waechter's employment and create an abusive work environment, from both a subjective and objective standpoint, and (4) imputable to Fairbrook. Ziskie v. Mineta, 547 F.3d 220, 224, 227 (4th Cir. 2008); see 42 U.S.C. § 2000e-2(a)(1) (prohibiting sex- based discrimination as to the terms, conditions, or privileges of employment). Fairbrook did not dispute below that a reasonable jury could find that Kessel's conduct was unwelcome or that Waechter subjectively perceived it as creating an abusive working environment, but Fairbrook did dispute that Kessel's harassment was based on sex, objectively abusive, and imputable to Fairbrook.<4> Without deciding whether Kessel's conduct was based on sex, the district court agreed with Fairbrook that the harassment was not objectively hostile or abusive and granted summary judgment. Because this conclusion was erroneous, and because a reasonable jury could also find that the harassment was based on Waechter's sex and was imputable to Fairbrook, this Court should reverse summary judgment. A. Kessel's harassment was based on Waechter's sex. Fairbrook asserted below in a footnote that Kessel's harassment was not based on Waechter's sex because Kessel was "a generally crude person to male and female alike." R.13, pg. 9 n.3. Because Fairbrook failed to cite any legal authority or record evidence to support this perfunctory assertion, this Court should find that Fairbrook waived any argument that Kessel's conduct was not based on sex. Even if Fairbrook did not waive this argument, however, this Court should find that the EEOC met its burden of offering evidence from which a reasonable jury could find that Kessel's conduct was based on Waechter's sex. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting "discrimat[ion] . . . because of . . . sex"). "The critical issue" in determining whether conduct was sex-based "is whether members of one sex [we]re exposed to disadvantageous terms or conditions of employment to which members of the other sex [we]re not exposed." Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75, 80 (1998) (internal quotation marks and citation omitted). The Supreme Court has said that the inference that conduct is sex-based is "easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex." Id. Such is the case here. Viewing the evidence in the light most favorable to the EEOC, as is required on summary judgment, the record shows that Kessel directed both "explicit [and] implicit proposals of sexual activity" to Waechter. These included, among other things, comments about Waechter's breast size and multiple requests to touch or pump her breasts. See, supra, at 4-10. Under Oncale, this evidence would be enough to sustain a jury's finding that Kessel's harassment was because of Waechter's sex, especially because there is no evidence that he directed such comments towards male employees. See EEOC v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001) (finding that harassment was "because of" sex where the harasser "directed his sexually pointed comments exclusively to the young women who worked for him," not men, and where he repeatedly examined the bodies of the women and referenced the size of one victim's buttocks and breasts). Finally, the fact that Kessel's conduct might have also offended men in the workplace does not, as Fairbrook asserted below, compel the conclusion as a matter of law that his harassment was not based on Waechter's sex. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003) (rejecting employer's argument that harassment was not "because of" the plaintiff's sex because anyone could witness the sex-based talk and gestures and because it was equally offensive to men). A jury could easily find that Kessel's conduct was "calculated to disturb" Waechter and "provoke [her] reaction as a woman," which would support a finding that the harassment was sex-based. Id. (concluding that "[m]uch of the conduct, a jury could find, was particularly offensive to women and was intended to provoke Ocheltree's reaction as a woman"). Accordingly, even if Fairbrook did not waive any argument that Kessel's harassment was not "because of" Waechter's sex, this Court should find that the EEOC's evidence on this point was more than sufficient to raise a jury question. B. A reasonable jury could find that Kessel's harassment was sufficiently severe or pervasive from an objective standpoint to create a hostile or abusive work environment. The Supreme Court has long recognized that Title VII's prohibition on sex discrimination includes subjecting an employee, because of her sex, to a workplace permeated with unwelcome "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create a[] [hostile or] abusive working environment." Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 65-67 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII's broad rule of workplace equality."). The Supreme Court and this Court have recognized that the inquiry into whether a reasonable person in the plaintiff's position would have found the environment objectively hostile or abusive "'is not, and by its nature cannot be, a mathematically precise test.'" EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (quoting Harris, 510 U.S. at 22). Instead, "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances," which may include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23; see also Oncale, 523 U.S. at 81-82 (stressing the need to look at "all the circumstances" in harassment cases). Given the intensely factual nature of the inquiry, this Court has recognized that "whether harassment was sufficiently severe or pervasive to create a hostile work environment is 'quintessentially a question of fact' for [a] jury." Conner v. Schrader-Bridgeport Int'l. Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (citation omitted). Here, the district court erred in taking away from the jury the quintessentially factual question of whether Waechter reasonably found Kessel's harassment sufficiently severe or pervasive to create a hostile work environment. Both the Supreme Court and this Court have recognized that harassment that is similar, or even less severe or pervasive than that alleged here, can be actionable. In Harris, which involved facts remarkably similar to those alleged here, the Supreme Court reversed judgment for the employer on the plaintiff's claim of a sex-based hostile work environment and remanded the case for further proceedings where the plaintiff alleged that the company president "often insulted her because of her gender and . . . made her the target of unwanted sexual innuendoes" by saying in front of others things like "We need a man as the rental manager" and You're a woman, what do you know"; suggesting that that they "go to the Holiday Inn to negotiate [plaintiff's] raise"; asking if she had promised a customer "some [sex] Saturday night"; and "occasionally" asking the plaintiff and others to get coins from his pockets and pick up objects he had thrown on the ground. Harris, 510 U.S. at 18-19. Similarly, this Court has suggested that two days of co-worker comments about a plaintiff's nipples may be actionable. See Spicer v. Va. Dep't of Corrections, 66 F.3d 705 (4th Cir. 1995) (en banc) (where the district court found that co-workers' remarks for two days about the plaintiff's nipples were actionable, holding on appeal that the harassment was not imputable to the employer); see also Conner, 227 F.3d at 197 (citing Spicer, 66 F.3d at 707, as holding that "an abusive environment is established by two days of a few co-workers' remarks such as "[t]his is nipple check day" and "[w]hich one is bigger"). Other courts have similarly held that sexual comments and propositions akin to those alleged in this case may be actionable. See Burrell v. Star Nursery, Inc., 170 F.3d 951, 954-57 (9th Cir. 1999) (genuine issue of material fact regarding hostile work environment existed where supervisor allegedly "sexually harassed [plaintiff] by making comments that contained sexual references; saying he wanted to take a trip to the mountains with her; and making comments about how [plaintiff] looked and how 'well built' she was"). Thus, the EEOC's evidence was sufficient to allow a reasonable jury to determine that the harassment was actionable. In concluding otherwise the district court made a number of errors. At the outset, the court erred in reasoning as a matter of law that the harassment was not actionable because it was not as egregious as the conduct alleged in Anderson, R&R Ventures, and Ocheltree. See JA470-JA472. The Supreme Court rejected such an approach in Harris, where the Court said that "[t]he appalling conduct alleged in Meritor, and the reference in that case to environments "'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers'" "merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable." Harris, 510 U.S. at 22. Consistent with this pronouncement from Harris, other courts of appeals have recognized that "prior cases finding hostile work environments, which often furnish quite egregious examples, 'do not mark the boundary of what is actionable.'" Wooten v. Federal Express Corp., 2009 WL 928177, at *4 n.20 (5th Cir. April 7, 2009) (quoting Harris, 510 U.S. at 22); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) ("[T]he appalling conduct alleged in prior cases should not be taken to mark the boundary of what is actionable.") (internal quotation marks and citation omitted). Thus, the question here is not whether Kessel's harassment was as egregious as that alleged in other cases, but whether, "looking at all the circumstances," a jury could find that it was hostile or abusive. Harris, 510 U.S. at 23. In determining that no reasonable jury could reach this conclusion, the court further erred by discounting the severity of the harassment on the grounds that "[m]any of the supposedly harassing incidents were not directed at Waechter." JA472. To the extent the district court's statement was based on the premise that only harassment targeted at an individual is actionable, this is an incorrect statement of the law. This Court has recognized that conduct need not be directed at a plaintiff in order to be actionable. See Jennings v. Univ. of N.C., 482 F.3d 686, 698 (4th Cir. 2007) (en banc) (concluding that a jury could reasonably find a hostile work environment where there was a general, sexually charged environment but only two harassing incidents were directed at the plaintiff); see also Ocheltree, 335 F.3d 325 (concluding that the plaintiff had established a sex- based hostile work environment claim although the plaintiff was not the subject of the harassment). The court's conclusion on this point was also erroneous as a factual matter because a reasonable jury could easily find that Kessel did direct much of his harassment at Waechter. According to Waechter, Kessel told her "a couple of times" that he was glad that his wife did not have a vaginal birth "because her muscles were still tight," showed her a photo of his wife and others topless at a beach, emerged shirtless from an examination room and called out, "Deb, don't you want to come in here," told one of her patients that she and her husband were "probably [ ] screwing the whole time" they were on vacation, commented two or three times about the size of her breasts while she was pregnant and once immediately upon her return from maternity leave, and subsequently made comments "at least once or twice a week" for about two months about his desire to see and/or pump her breasts. See, supra, at 4-10. Thus, a jury could easily find that many of the harassing incidents were directed at Waechter, which, although not required to support the EEOC's claim, enhanced the severity of the harassment. See Moser v. MCC Outdoor, LLC, 256 Fed. Appx. 634, 641 (4th Cir. 2007) ("[T]he fact that Moser was a specific object of Jones's sexual attention and not just a witness to inappropriate sexual behavior concerning other women" contributed to its severity.). The court also erred in reasoning, as a matter of law, that the harassment was not actionable because it consisted of "the type of crude jokes that do not run afoul of Title VII." JA472. The EEOC offered more than enough evidence for a reasonable jury to conclude that the harassment did not consist simply of "crude jokes" or mere offensive utterances, but of humiliating, sexist, and demeaning comments and sexual innuendo that were "aimed to humiliate, ridicule, or intimidate" Waechter, and that the harassment had its intended effect. Sunbelt Rentals, 306 F.3d at 316 (severe or pervasive standard satisfied "where the environment was pervaded with discriminatory conduct 'aimed to humiliate, ridicule, or intimidate'") (quoting Jennings, 482 F.3d at 695). As even the district court acknowledged, Kessel's multiple requests to "help" pump Waechter's breasts constituted severe harassment. JA471-72 (stating that "other than Kessel's request to pump Waechter's breasts, Kessel's actions were not particularly severe") (emphasis added). More than just "severe," a jury could find that these requests, which Kessel directed at Waechter just weeks after her son was born, were deeply humiliating and demeaning. A reasonable jury could also determine that Kessel's comment, made in front of Sharpe, that he "wanted to lick [] up" a drop of breast milk from Waechter's desk was a deeply offensive and demeaning comment that was calculated to humiliate and embarrass Waechter, which it did. A jury could also find that Waechter reasonably interpreted Kessel's repeated requests to pump and/or see Waechter's breasts, combined with his inquiry as to whether her sex drive was higher when she pumped and his comment that she was "probably a wild thing in bed," as sexual advances. See Moser, 256 Fed. Appx. at 640 ("By telling [plaintiff] she was a hottie, that he would like to see her in a bikini, or that he 'would do [her] in a heartbeat," the plaintiff's supervisor "communicated to [her] that he wanted to have sex with her."). Certainly, a reasonable jury would be entitled to find that Kessel's statement to Waechter that she "owed him big" for his help on the Frye matter, followed immediately by his request to help pump her breasts, constituted a direct request for sexual favors, particularly given all of Kessel's conduct leading up to this incident. See id. Similarly, a jury could also find that Kessel's remark to Waechter's patient that she was "off screwing" with her husband was not just a "mere offensive comment" but constituted humiliating and degrading harassment calculated to undermine Waechter's professionalism and her relationship with her patient. A reasonable jury could also find that Kessel's other conduct was humiliating and offensive and thus contributed to an objectively hostile work environment. The additional conduct included: telling Waechter three times how big her breasts were; telling Waechter several times that he was glad his wife had avoided a vaginal birth because "her muscles were still tight," and making a more graphic comment to that effect at a staff meeting; showing Waechter a photo of his wife and other women topless; showing Waechter and repeatedly showing others an x-ray of his penis, which he called "Mr. Happy"; inviting Waechter to join him in an exam room while shirtless; telling dirty jokes two to three times a month; and making demeaning comments about female drug reps. A reasonable jury could find that this conduct involved more than mere offensive utterances because of the overtly sexual nature of Kessel's conduct and jokes and because much of it was targeted specifically at Waechter. See Moser, 256 Fed. Appx. at 641 (severity of harassment enhanced by being the target of it). A jury could also find that the severity of the harassment targeted at Waechter was enhanced by the "general, sexually charged environment," which also contributed to the hostile work environment in its own right. Jennings, 482 F.3d at 698 (jury could reasonably find that two incidents of direct harassment of the plaintiff "were more abusive in light of the general, sexually charged environment" and reversing summary judgment). A reasonable jury could also conclude that the severity of the harassment was enhanced by the fact that Kessel was not just Waechter's supervisor but was the sole owner of Fairbrook, which the district court failed to even consider. This Court has recognized that "a disparity in power between the harasser and the victim" is relevant in evaluating severity. Ziskie, 547 F.3d at 227-28 (distinguishing the case at bar, which involved co-worker harassment, from other cases involving "repeated harassing conduct by someone in a position of authority"). In keeping with this principle, several courts have recognized that a harasser's high-ranking status, such as company president or even vice-president, is relevant in evaluating the severity of the harassment. See, e.g., Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998) (reversing summary judgment in hostile work environment case and stating, "Katz, the President of TransAmerica, made all of the statements at issue here and the plaintiff worked with Katz on a daily basis" and that these "factors can be considered in determining whether the conduct was severe"); EEOC v. Sam & Sons Produce Co., Inc., 872 F. Supp. 29, 35 (W.D.N.Y. 1994) ("The severity of the incidents was enhanced further in that [the harasser], as vice president of the company and son of the president, was not merely an obnoxious co-worker but rather had presumptive authority over [the victim]," and holding that harassment was actionable). See also Harris, 510 U.S. at 23 (remanding for a determination of whether environment was hostile where the company president directed sexual innuendos and comments at the plaintiff). Accordingly, a reasonable jury could find that the severity of Kessel's harassment was enhanced by the fact he was not just a supervisor, or even a president or vice-president, but the sole owner of Fairbrook. Certainly, a jury could find that Waechter reasonably believed that enduring Kessel's humiliating comments and sexual come-ons was a permanent term and condition of her employment because there was no one above Kessel, or even at his level, to whom Waechter could turn to for help. The district court also erred in suggesting as a matter of law that the jury could not find the harassment actionable because it did not cause Waechter psychological stress or to miss work, and because it did not involve any physical contact or threats. JA472. The Supreme Court long ago said that "Title VII comes into play before the harassing conduct leads to a nervous breakdown." Harris, 510 U.S. at 23 (stating that "psychological harm, like any other relevant factor, may be taken into account" but that "no single factor is required"). Similarly, there is no requirement in the statute that the harassment be so severe that a plaintiff can no longer work. See generally R&R Ventures, 244 F.3d at 340 (rejecting the employer's argument that the harassment could not have unreasonably interfered with the plaintiff's work performance because she agreed to return to work after quitting, and stating, "[a]s was explained in Harris . . . the inquiry 'is not whether work has been impaired, but whether working conditions have been discriminatorily altered.'") (quoting Harris, 510 U.S. at 25) (Scalia, J., concurring)). Finally, the Supreme Court and this Court have repeatedly recognized that harassment short of physical touching or threats can be actionable. See, e.g., Harris, 510 U.S. 17 (remanding for determination of whether harassment, which consisted of sexual comments and innuendo, was actionable); EEOC v. Cent. Wholesalers, -- F.3d -- , 2009 WL 2152348, at *7-8 (4th Cir. July 21, 2009) (concluding that a jury could find a hostile work environment based on sexual epithets and pornography). Thus, neither the failure of the harassment to cause Waechter severe psychological stress or to miss work, nor the lack of physical touching or threats, provided grounds for granting summary judgment. The question on summary judgment is simply whether a reasonable jury considering all of the circumstances could find that the harassment created "a discriminatorily abusive work environment." Harris, 510 U.S. at 22. Here, while the harassment did not affect Waechter's psychological well-being such that she suffered a nervous breakdown, a jury could easily find that the harassment created "a discriminatorily abusive work environment" because it "detract[ed] from [Waechter's] job performance, discourage[d] [her] from remaining on the job, or ke[pt] [her] from advancing in [her] career[]." Id. The evidence that Kessel told Waechter's patient that Waechter and her husband were "probably off screwing" while on vacation, and the patient's testimony that she was "shocked" and "embarrassed" by Kessel's comments, could lead a reasonable jury to find that Kessel's comments undermined Waechter's professionalism and patient care and therefore interfered with her work performance. Similarly, a jury could conclude that Waechter was understandably so infuriated and distressed by Kessel's harassment that it prompted her to leave her job. See JA119; JA120 (Waechter Depo.) (testifying that she "would [not] have been near as interested" in the new position had Kessel not been harassing her, and pointing out that she had passed up two earlier job offers). The district court also erred in discounting the harassment as "not particularly frequent." JA471. All of Kessel's harassment occurred during the three-year span of Waechter's employment from January 2003 to February 2006. Cf. Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (finding conduct not actionable where it occurred "intermittently over a seven-year period, with gaps between incidents as great as a year"). A jury could find that the harassment leading up to Waechter's maternity leave occurred on a monthly, if not weekly, basis, as Waechter testified that before her maternity leave Kessel told dirty jokes two to three times a month, showed the x-ray of his penis 25-30 times, and made vulgar comments about the female drug reps, and she and others testified that additional conduct occurred as well. See, supra, at 4-10. Additionally, Waechter testified that for two months after her maternity leave Kessel made repeated comments about wanting to see or pump her breasts "at least once or twice a week." A jury could therefore find that the harassment was frequent. Finally, in evaluating the severity of the harassment a reasonable jury could consider evidence from other employees about the general atmosphere of hostility towards women. See Ziskie, 547 F.3d at 225 ("When examining all the circumstances of a plaintiff's workplace environment, evidence about how other employees were treated . . . can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself."); Sunbelt Rentals, 521 F.3d at 317 (customer testimony that the workplace was replete with anti-Muslim hostility was relevant to the plaintiff's hostile work environment claim); Jennings, 482 F.3d at 696 ("Evidence of a general atmosphere of hostility toward those of the plaintiff's gender is considered in the examination of all the circumstances."). Accordingly, a reasonable jury could rely on testimony from Sigmon and Sailors as to Kessel's use of sexist language and terms in concluding that the environment was hostile. See, supra, at 4-5. Because a reasonable jury considering all of the evidence could find that Waechter reasonably found the harassment hostile or abusive, this Court should reverse the entry of summary judgment. C. A reasonable jury could find Fairbrook liable for the harassment. Although the district court did not reach the issue of liability, the EEOC offered more than enough evidence for a reasonable jury to conclude that Kessel's harassment was imputable to Fairbrook because he is the alter ego of Fairbrook, and/or because Fairbrook cannot satisfy the Ellerth/Faragher affirmative defense to supervisor harassment.<5> 1. Alter Ego The Supreme Court has recognized that an employer is automatically liable for harassment where the harasser is the company's "proxy." Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) ("Nor was it exceptional that standards for binding the employer were not in issue in Harris," as the harasser there "was the president of the corporate employer . . . who was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy"; also citing cases holding that liability is automatic where the harasser is an owner or high-ranking manager). Accordingly, numerous courts of appeals have held or stated after Faragher that an employer is automatically liable for harassment carried out by a company's proxy or alter ego. See, e.g., Ackel v. Nat'l Commc'n, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003) (stating that an employer is vicariously liable when the harasser is a "proxy for the employer" and holding that plaintiff raised a factual question as to whether harasser was proxy); Mallinson- Montague v. Pocrnick, 224 F.3d 1224, 1232-33 (10th Cir. 2000) (upholding jury instruction on alter ego theory where the harasser was a senior vice president); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000) (citing Faragher for the proposition that "an individual sufficiently senior in the corporation must be treated as the corporation's proxy for purposes of liability," which "constitutes a bar to the successful invocation of the [Faragher/ Ellerth ] defense as to punitive damages"); Dees v. Johnson Controls, 168 F.3d 417, 421-22 (11th Cir. 1999) (noting an employer can be held vicariously liable if the supervisor holds "such a high position in the company that he could be considered the employer's 'alter ego"'). While this Court has yet to hold in a post- Faragher opinion that an employer is automatically liable for a proxy's harassment, the Supreme Court in Faragher quoted with approval this Court's statement in Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983), that "'except in situations where a proprietor, partner or corporate officer participates personally in the harassing behavior'" an employee must "'demonstrate[e] the propriety of holding the employer liable.'" Faragher, 524 U.S. at 789-90 (quoting Katz, 709 F.2d at 255) (emphasis added). Thus, as Faragher noted, this Court has already stated that an employer is automatically liable for harassment carried out by an alter ego of the company. Here, it is undisputed that Kessel is the sole owner of Fairbrook. JA250-51. He is therefore its proxy. Accordingly, under Faragher and its progeny, as well as under Katz, Fairbrook is automatically liable for Kessel's harassment. 2. Ellerth/Faragher Affirmative Defense Even assuming, arguendo, that the Ellerth/Faragher affirmative defense applied here, summary judgment would still be inappropriate because there is at least a factual question as to whether Fairbrook showed both "(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that [Waechter] unreasonably failed to take advantage of any preventive or corrective opportunities." Faragher, 524 U.S. at 807 (emphasis added). Fairbrook cannot show as a matter of law that it exercised reasonable care to prevent the harassment. Although Fairbrook had an anti-harassment policy, a reasonable jury could easily find it ineffective in light of evidence that Fairbrook failed to disseminate it to Waechter and that when Waechter complained to Cook and Kessel, as the policy generally directed her to do, they did nothing about her complaints. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 244 (4th Cir. 2000) (anti-harassment policy must be "'both reasonably designed and reasonably effectual'") (quoting Brown v. Perry, 184 F.3d 388 (4th Cir. 1999)). Additionally, a jury could find that Fairbrook did not act reasonably in preventing harassment since it never once in its thirty-seven year history offered any anti-harassment training. Similarly, Fairbrook cannot show as a matter of law that it used reasonable care to correct promptly any harassment since it is undisputed that Cook did nothing at all about Waechter's verbal complaint, even though Fairbrook's policy promises that complaints "will be investigated promptly." JA156. See Smith, 202 F.3d at 245 (concluding that the employer failed to exercise reasonable care to correct promptly any harassment where its investigation was inadequate); Cent. Wholesalers, -F.3d - , 2009 WL 2152348 at *9 (citing evidence that employer "failed to respond in a timely manner or failed to respond at all" to many of the plaintiff's complaints of co-worker verbal harassment and concluding that the employer had failed to "respond with corrective action reasonably calculated to end the harassment"). Similarly, although Waechter testified that she told Bartnicki (who was responsible for personnel issues, and who was also Kessel's sister-in-law) about one of Kessel's comments, there is no evidence that she did anything to address Waechter's complaint. Additionally, although Fairbrook's policy directs employees to complain to their supervisor and/or "the partners of Fairbrook Medical," and although Waechter complained to Kessel - who was her supervisor and the only "partner" at Fairbrook - numerous times that his comments and conduct were unwelcome, Kessel did nothing in response except to keep up his behavior. See Sunbelt Rentals, 521 F.3d at 320 (concluding that employer failed to respond with reasonable corrective action to co-worker harassment and stating, "[t]here is scant evidence that Sunbelt . . . did anything meaningful in response to [plaintiff's] verbal complaints," but actually "allowed the harassment to continue"). Finally, even if Fairbrook could show that it met the first prong of the affirmative defense as a matter of law, it cannot show as a matter of law that Waechter unreasonably failed to take advantage of any preventive or corrective opportunities, as she complained numerous times to Kessel about his conduct and once to Cook and Bartnicki. CONCLUSION For all the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's grant of Fairbrook's motion for summary judgment on the EEOC's sex-based hostile work environment claim and remand this case for trial. REQUEST FOR ORAL ARGUMENT Given the importance of this appeal to the proper interpretation of Title VII and the EEOC's enforcement efforts, the Commission respectfully requests oral argument. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,790 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov Date: July 28, 2009 CERTIFICATE OF SERVICE I certify that on July 28, 2009, I electronically filed this brief and served two courtesy copies of this brief and one copy of the Joint Appendix by mailing them via U.S. Mail to: Kenneth P. Carlson, Jr. Kristine Marie Sims Constangy, Brooks, & Smith, LLC 100 N. Cherry St., Ste. 300 Winston-Salem, NC 27101 ______________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov *********************************************************************** <> <1> All references to "JA" are to the corresponding page in the parties' Joint Appendix. <2> All references to "R" are to the corresponding entry on the district court's docket sheet. <3> Sharpe remembers the incident slightly differently; she says that Kessel told Waechter only that she needed to clean up a drop of breast milk from her desk. JA271. Because this case was decided on summary judgment, Waechter's version of events must be credited. <4> See Defendant's Br. in Support of Mo. for Summ. Judg., R. 13, at pg. 9, n.3. <5> Fairbrook asserted below that it had established as a matter of law the <6> Ellerth/Faragher affirmative defense but did not respond to the EEOC's argument that it was automatically liable because Kessel is the alter ego of Fairbrook. See R.13, 17 (Reply).