_______________________________________________________ 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 _______________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 2 1. Evidence that Kessel was a crude person would not preclude a reasonable jury from concluding that his harassment of Waechter was based on her sex. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Contrary to summary judgment principles, Fairbrook asks this Court to view the facts in the light most favorable to it, rather than to the EEOC... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Fairbrook's gratuitous attacks on Waechter's character do not compel a finding that no reasonable woman would find the harassment severe or pervasive. . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4. Title VII does not require the Commission to show that the harassment in this case was as egregious as in every previous case. . . . . . 12 5. Fairbrook fails to effectively distinguish the cases the Commission actually relied upon to show that a reasonable jury could find the harassment actionable.. . . . . . . . . . . . . .. . . . . . . . 18 6. Fairbrook's unfounded attack on the EEOC's "legal sleight of hand" reflects a misunderstanding of the summary judgment standard and underscores why this case should go to a jury. . . . . . . . . . . . . . . 23 7. Fairbrook has not established as a matter of law that it could not be held liable for Kessel's harassment of Waechter. . . . . . . . . . . . 29 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Abeita v. Transamerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . . . . . . . . . . . . . . . 9,22 Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) . . . . . . . . . . . . . . . .21,22 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000) . . . . . . . . . . . . . . 15,21,22 Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . . . . . . . .4 EEOC v. Cent. Wholesalers, Inc. 573 F.3d 167 (4th Cir. 2009) . . . . . . . . . . . . . . 15,16,23 EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001) . . . . . . . . . . . . . . . . 5,15 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) . . . . . . . . . . . . . . . . . 16 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . 26,31 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . passim Harris v. Forklift Sys., Inc., No. 03-89-0557, 1991 WL 487444 (M.D. Tenn. Feb. 4, 1991). 18 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) . . . . . . . . . . . . . . . . . 16 Meritor Sav. Bank, FSB, v. Vinson, . . . . . . . . . . . . . . . . . . . . . . 477 U.S. 57 (1986)10 Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999) . . . . . . . . . . . . . . 11 Moser v. MCC Outdoor LLC, 256 Fed. Appx. 634 (4th Cir. 2007) . . . . . . . . . . . . . 17 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) . . . . . . . . . . . . . . . 4,16 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . 3,5,29 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) . . . . . . . . . . . . . . . . 17 Smith v. Nw. Fin. Acceptance, 129 F.3d 1408 (10th Cir. 1997) . . . . . . . . . . . . . 7,11,22 Spicer v. Va., Dep't of Corr., 66 F.3d 705 (4th Cir. 1995) . . . . . . . . . . . 10,14,15,20,21 Swentek v. USAir, Inc., 830 F.3d 552 (4th Cir. 1987) . . . . . . . . . . . . . . . . 10 Statute 42 U.S.C. § 1981(b)(3)(A) . . . . . . . . . . . . . . . . 10 INTRODUCTION In its opening brief, the Commission argued that the district court had erred in granting summary judgment on the Commission's claim that Fairbrook subjected Waechter to a sex-based hostile work environment. Specifically, the Commission contended that it had offered more than enough evidence for a reasonable jury to conclude that the harassment was based on Waechter's sex, as the jury could easily credit the Commission's evidence that Kessel directed multiple explicit and implicit sexual proposals to Waechter, including requests to touch or pump her breasts. The Commission also argued that, contrary to the district court's conclusion, a reasonable jury could find that Kessel's harassment was sufficiently severe or pervasive from an objective standpoint to create a hostile or abusive working environment. As to liability, the Commission contended that Fairbrook is automatically liable for the harassment because Kessel – the sole owner of Fairbrook – is the alter ego of Fairbrook. Finally, the Commission argued that even if the alter ego theory of liability somehow did not apply here, a jury could find Fairbrook liable for the harassment because Fairbrook had failed to establish as a matter of law the Ellerth/Faragaher affirmative defense. In response, Fairbrook argues that no reasonable jury could find that Kessel's harassment was "based on sex" or that it was sufficiently severe or pervasive to be actionable. In making these arguments, Fairbrook, like the district court, misapplies the summary judgment standard, which requires that all inferences be drawn in the EEOC's favor and instructs that the district court is not to make credibility determinations, and sidesteps some of the key cases the Commission cited in its opening brief. Tellingly, Fairbrook fails altogether to respond to the EEOC's argument that Fairbrook is automatically liable for the harassment because Kessel is the alter ego of Fairbrook, essentially conceding liability for any actionable harassment. Fairbrook nevertheless makes a half- hearted argument that it is not liable for any harassment because it established the Ellerth/Faragher affirmative defense. But the Ellerth/Faragher affirmative defense is inapposite because liability under the alter ego theory is clear. Even if it were not, Fairbrook has failed to establish the defense as a matter of law. Therefore, this Court should remand this case for trial. ARGUMENT 1. Evidence that Kessel was a crude person would not preclude a reasonable jury from concluding that his harassment of Waechter was based on her sex. In spite of substantial record evidence and case law to the contrary, Fairbrook argues that, as a matter of law, Kessel's harassment was not based on Waechter's sex because Sigmon testified that Kessel "was a generally crude person." Resp. at 49. This argument, which fails to address the Commission's argument at pgs. 18-19 of its brief, is neither legally nor factually supportable.<1> The basic premise of Fairbrook's argument is that because Sigmon testified that Kessel made indiscriminate comments in the workplace about women's breasts and oral sex, the district court was compelled to conclude as a matter of law that Kessel's harassment was not based on Waechter's sex. Resp. at 49-51. This argument is flawed. To be sure, Sigmon testified that Kessel routinely made sexist remarks in front of anyone who was around. See Br. at 4- 5. But Sigmon also testified that Kessel delighted in being a "shock jock," i.e., he enjoyed watching the reaction of women to his obscene comments, and that Kessel routinely commented on the physical features of his female patients and staff. Id. (citing JA323-24). As the Commission contended in its opening brief, and Fairbrook fails to refute, this Court's own precedent establishes that a reasonable jury could find that although Kessel's comments were made in front of men and women and might have been equally offensive to both, his conduct was "based on" Waechter's sex because it was "‘calculated to disturb'" Waechter and "‘provoke her reaction as a woman.'" Br. at 19 (quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003)). Therefore, far from defeating a finding that Kessel's conduct was sex-based, Sigmon's testimony would support a jury's finding on this point.<2> But the Commission's evidence that Kessel's harassment was "based on" Waechter's sex was not limited to just Sigmon's testimony. Instead, the Commission's opening brief pointed to a plethora of additional evidence – including Waechter's testimony that Kessel commented several times about her breast size, said she must be a "wild thing" in bed, asked if she had a "better sexual libido" while pumping, and for a two-month period made weekly requests to touch or pump her breasts – that would support a jury's finding that Kessel targeted Waechter for harassment because she is a woman. See Br. at 3- 10, 18. Significantly, Fairbrook does not dispute that this evidence is in the record, and it does not have any credible argument for why a reasonable jury would not be entitled to find that Kessel's comments and inquiries constituted either explicit or implicit proposals of sexual activity. Fairbrook also has no explanation for why the Supreme Court's statement in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), that an 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 proposal of sexual activity" and "it is reasonable to assume those proposals would not have been made to someone of the same sex," does not put an end to the issue of whether a jury could find the harassment sex-based. Fairbrook has similarly failed to refute the Commission's argument that EEOC v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001), supports the Commission's position that a jury could find that Kessel's harassment was sex-based because there is evidence that Kessel repeatedly commented on the size of Waechter's breasts, asked to see or pump them, and directed a number of sexually-explicit comments to Waechter. See Br. at 18-19. Therefore, even if Fairbrook has not waived the issue, this Court should find that the Commission raised a jury question as to whether Kessel's harassment was based on Waechter's sex. 2. Contrary to summary judgment principles, Fairbrook asks this Court to view the facts in the light most favorable to it, rather than to the EEOC. Although Fairbrook's brief recites the proper summary judgment standard, Fairbrook's brief fails to adhere to it. At the outset, Fairbrook repeatedly refers to the conduct as "alleged" or writes that Waechter "claims" that various incidents occurred. But this Court is reviewing a grant of summary judgment. Fairbrook therefore must assume that these events happened as Waechter testified. Thus, for instance, Fairbrook repeatedly states that Sharpe testified that Kessel told Waechter only that the drop of breast milk on her desk needed to be "cleaned up," not that he wanted to "lick it up." Resp. at 23, 29. But because Waechter testified that Kessel said he wanted to "lick it up," which Powell's testimony even corroborates, Fairbrook – and the district court – had to assume this was true for purposes of summary judgment. See Br. at 9-10. Similarly, while Fairbrook says that Waechter "claims" that Kessel told one of Waechter's patients that she was off screwing with her husband, Resp. at 22, Fairbrook must assume that this happened because, even though Kessel denies it, Waechter's patient and her fiancé testified that it did. Br. at 7. Fairbrook similarly suggests that no reasonable jury could find for the Commission because Fairbrook's employees did not corroborate Waechter's testimony. This assertion is wrong as a legal matter. Title VII's prohibition on sexual harassment is not limited only to harassment witnessed by others. If that were true, many cases of egregious harassment would never make it to court because, as in this case, the harassment often occurs wholly or partly in private. Fairbrook is similarly mistaken in suggesting that the Commission's claim is defeated because many of Fairbrook's female employees did not experience harassment. Resp. at 24 n.12. The Commission did not bring a claim on behalf of any other women and therefore does not need to show that Kessel harassed anyone else. To the contrary, the fact that Kessel targeted Waechter, and left other women alone, may be relevant to showing that the harassment was hostile or abusive. See Smith v. Nw. Fin. Acceptance, 129 F.3d 1408, 1414 (10th Cir. 1997) ("[T]he invective imposed by [the harasser] was directed solely at Plaintiff. This may be a relevant factor in determining a hostile work environment."). And to the extent Fairbrook raises this issue to question Waechter's credibility, credibility issues are for a jury. Fairbrook's claim that the EEOC "failed to corroborate most of [Waechter's] allegations," Resp. at 26, is also wrong as a factual matter. The Commission's brief clearly pointed to corroborating testimony from current or former Fairbrook employees, including Samaroo, Sigmon, Fagan, and Powell, as well as from Waechter's patient and her fiancé. Br. at 4-10. Fairbrook's assertion that the Commission failed to corroborate much of Waechter's testimony is particularly puzzling given that Fairbrook itself concedes that three witnesses testified to having seen the x-ray revealing Kessel's penis, Samaroo corroborated Waechter's testimony about Kessel asking her to join him in the exam room, and Powell testified that Kessel commented once in the break room about "how tight his wife's pussy was as a result of the C-sections." JA362-63; see Resp. at 28 n.15, 27, 21 n.8. Additionally, Fairbrook concedes that Kessel told sexual jokes, Resp. at 29, corroborating Waechter's testimony that he told dirty jokes two to three times a month. Another example of Fairbrook's disregard of the proper summary judgment standard is its suggestion that summary judgment was appropriate because "Waechter admits only a limited number of distinct incidents." Resp. at 14, n.5. Since Waechter testified in very specific detail as to much of Kessel's harassing conduct, see Br. at 4-10, Fairbrook's argument here seems to be aimed at Waechter's testimony that although Kessel told dirty jokes about two to three times a month, she could recall the details of only one joke, and although Kessel made demeaning comments about female drug reps, she recalled the details of only one comment.<3> Br. at 3-4. This argument fails, however, because Waechter's "inability to recount any more specific instances goes to the weight of her testimony, a matter for the finder of fact." Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998). 3. Fairbrook's gratuitous attacks on Waechter's character do not compel a finding that no reasonable woman would find the harassment severe or pervasive. Fairbrook would have this Court rule, as a matter of law, that the harassment was not objectively severe or pervasive because Waechter dressed provocatively at work<4> and, even more implausibly, regularly allowed her breast milk to leak out of her nipples onto her clothes, as well as because she granted her nurse's request to put up posters of good-looking men on the ceilings of Waechter's exam rooms and repeated a patient's comment about how "beautiful" Waechter's breasts were. Resp. at 29, 23 n.10, 25-26. This kind of Victorian argument has been rejected by the courts and finds little support in the record and therefore should be rejected for what it is – a gratuitous attack on Waechter's character. While the Supreme Court has held that evidence of an employee's sexually provocative speech or dress may be relevant to determining whether she found particular advances unwelcome, Fairbrook has conceded that Waechter did not welcome Kessel's conduct, so evidence of her dress or appearance is not relevant to make this point. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 69 (1986). Significantly, Fairbrook has failed to cite any specific authority for the proposition that an employee's allegedly provocative dress, recitation of a patient's comment to her about her breasts, or placement of posters with shirtless men on the ceiling is relevant to the objective determination of whether a reasonable woman in Waechter's shoes would have found Kessel's conduct severe or pervasive. In fact, this Court has implicitly rejected the argument that if an employee's nipples show through her blouse she cannot show a hostile work environment. See Spicer v. Va., Dep't of Corr., 66 F.3d 705 (4th Cir. 1995) (reversing judgment on liability grounds where the district court had found a hostile work environment based on co-worker remarks about the plaintiff's nipples showing through her blouse). This Court has also explicitly rejected the notion – again, in the context of determining whether harassment was welcome, not whether it was objectively hostile – that an employee's "use of foul language or sexual innuendo" "does not waive ‘her legal protections against unwelcome harassment.'" Swentek v. USAir, Inc., 830 F.2d 552, 557 (4th Cir. 1987), abrogation on other grounds recognized by Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999). Moreover, a jury could certainly find that although Waechter "joked it off" when a patient told her that her breasts were beautiful and had grown while she was pregnant,<5> JA123, Waechter reasonably found that having her boss and the sole owner of Fairbrook make comments about her breasts and repeatedly ask to see or "pump" them was hostile or abusive harassment. See, e.g., Smith, 129 F.3d at 1414 ("That Plaintiff herself engaged in casual joking in the office does not negate the harshness of the harassing treatment doled out by [her harasser]."). By the same token, the fact that Waechter was not offended when "certain older" male patients told dirty jokes that "were not very . . . descriptive or very . . . dirty," JA99-100, does not mean as Fairbrook contends, that as a matter of law Waechter did not reasonably find Kessel's dirty jokes and sexist statements to be hostile or abusive. Resp. at 25-26. In any event, whether Waechter dressed inappropriately, either by dressing provocatively or by allowing her breast milk to leak through her bra and blouse, is a contested issue of fact. As discussed in the Commission's brief, the EEOC offered evidence from Waechter, her patients, and Fairbrook's own employee, Lola Fagan, that Waechter always dressed appropriately and never provocatively. Br. at 6. Any assertion to the contrary, or that Waechter had "wet spots from her breast milk leakage," Resp. at 23 n.10, is significantly undermined by Kessel himself, as in March 2006 he completed a recommendation for Waechter that rated her "excellent" in all categories, including her appearance. JA160. Finally, although Fairbrook suggests that Waechter's pumping interfered with patient care, Resp. at 23 n.10, this point is entirely irrelevant to whether the harassment was objectively hostile or abusive. Nonetheless, the Commission offered evidence that Waechter's pumping never disrupted her schedule, and Kessel's nearly contemporaneous evaluation of Waechter as "excellent" for such categories as "professional judgment," "relationships with patients," and "patient management" casts into serious doubt whether he ever really thought that Waechter's pumping interfered with patient care. JA160. 4. Title VII does not require the Commission to show that the harassment in this case was as egregious as in every previous case. Fairbrook's primary argument as to why no reasonable jury could find that the harassment was objectively hostile is that it was not as horrible as that in other cases. See Resp. at 32-46. But this argument fails to respond to the Commission's point in its opening brief that the Supreme Court explicitly rejected this approach more than fifteen years ago in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), when the Court said that the appalling conduct in previous cases does not "‘mark the boundary of what is actionable.'" Br. at 23 (quoting Harris, 510 U.S. at 22, and citing other circuit cases also rejecting this approach). Certainly, the Commission agrees with Fairbrook that Title VII is not a code of general civility. The Commission also agrees that there are cases out there with more severe harassment. But the question posed by this appeal is not whether the conduct in this case is as bad as that in a string of particularly egregious cases. Instead, the question is whether a jury could find that a reasonable woman would find that having her boss – who happened to be the company's sole owner – comment several times about the size of her breasts, ask "at least" once or twice a week for a period of nearly two months if he could see or help "pump" her breasts, tell her she must be a "wild thing" in bed, ask if her sexual libido was higher while pumping, tell her patient she was "probably off screwing" all weekend, comment about his wife's genitalia, and make demeaning comments about other women and tell dirty jokes – is merely uncivil behavior that must be tolerated as an ordinary workplace tribulation, or whether such appalling conduct crosses the line into unlawful discrimination. Fairbrook's lengthy discussion of cases from this and other circuits involving particularly egregious facts therefore does not advance its argument that as a matter of law a jury could not find Kessel's harassment actionable. Rather, the fact that some cases of actionable harassment involve more egregious facts than others may bear on the amount of damages a plaintiff is awarded; it does not, however, mean that only the most egregious cases are actionable.<6> Fairbrook's argument also misses the mark because it is not always possible to categorize cases as involving "worse" or "not worse" harassment because the facts of each case are so specific; it is like comparing apples and oranges. In some cases, the conduct may be more severe or humiliating but infrequent, while in others it may less severe but more frequent. Significantly, Fairbrook also fails to address the Commission's argument that this case is also different from most other harassment cases – including many of the co-worker harassment cases Fairbrook relies upon – because here the harasser was the sole owner and alter ego of Fairbrook, which, a jury could find, enhanced the severity of the harassment. Br. at 28-29. Moreover, Fairbrook's argument that the facts of the Fourth Circuit cases the Commission cited are far worse than those here is a disingenuous strawman argument. The only Fourth Circuit case that the Commission actually cited as having facts similar to those here is Spicer, 66 F.3d 705. See Br. at 22. The rest of the Fourth Circuit cases cited in the Commission's brief were cited for specific legal propositions that Fairbrook does not even question. Although Fairbrook calls it "frankly amazing" that the Commission would cite Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000), because the facts of that case are so egregious, Resp. at 39, the Commission never asserted that the facts of this case are on par with those of Conner, which, to be sure, involved particularly offensive and humiliating harassment. Instead, what the Commission actually cited Conner for was the proposition that whether harassment is sufficiently severe or pervasive is quintessentially a question of fact for a jury and for its characterization of Spicer as holding that two days of co-worker's comments about the plaintiff's nipples was actionable. Br. at 21- 22. Similarly, while Fairbrook contends that the facts of EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001), "are not even close" to those here, Resp. at 40, the Commission never said that they were. Instead, the Commission cited R&R Ventures to make three points, none of which Fairbrook disputes: 1) the district court cited it; 2) it supports the Commission's "based on sex" argument because there, as in this case, the harasser directed sexual comments to the victims and commented about one victim's breasts; and 3) the harassment need not cause the plaintiff to be unable to work in order to be actionable. Br. at 13, 19, 29-30. Likewise, the Commission cited EEOC v. Central Wholesalers, 573 F.3d 167 (4th Cir. 2009), for the bedrock principle that harassment need not involve touching to be actionable. Br. at 30. As for EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008), the Commission cited it to make four points that Fairbrook does not refute: 1) whether an environment is objectively hostile is not a mathematically precise test; 2) the standard is satisfied where an environment is pervaded with discriminatory conduct aimed at humiliating, ridiculing, or intimidating the victim; 3) a jury can consider testimony of others about the general atmosphere of hostility towards women in evaluating the severity of the harassment; and 4) as to liability, that a policy is ineffective where an employer fails to respond with reasonable corrective action. Br. at 20, 25, 32, 37. As for Jennings v. University of North Carolina at Chapel Hill, 482 F.3d 686 (4th Cir. 2007), Fairbrook acknowledges the principle for which the Commission actually cited it – that a hostile work environment may exist where there was a general sexually-charged environment but only two incidents were directed at the victim – but nevertheless launches into a three-page discussion of the facts of Jennings and why the conduct there was worse. Resp. at 44-46. But again, Title VII does not require the Commission to show that the conduct here was as bad as in Jennings, even assuming that the conduct there was worse. Similarly, Fairbrook takes the Commission to task for relying on Ocheltree, but the Commission cited Ocheltree in its "based on sex" argument, Br. at 19, and otherwise only relied on it to argue that the district court erred in suggesting that only harassment targeted at an individual is actionable, which, again, is not a legal point Fairbrook disputes. Br. at 24. Likewise, while Fairbrook argues that the facts of Moser v. MCC Outdoor, LLC, 256 Fed. Appx. 634 (4th Cir. 2007), are worse that those here, the Commission cited this case for two discrete legal points: 1) a jury could find the severity of the harassment enhanced by the fact Waechter was the target of it, and not just a witness; and 2) a jury could find that some of Kessel's comments constituted sexual advances. See Br. at 25-26. Finally, as for Fairbrook's argument that the conduct here is not as bad as that in Smith v. First Union Nat'l Bank, 202 F.3d 234, 238-39 (4th Cir. 2000), the Commission never made that point; instead, the Commission cited Smith to support its argument as to Fairbrook's liability for the harassment. Br. at 36. Thus, while the salient point here is that Title VII does not require the Commission to show that the harassment here was as bad as in every other case, Fairbrook has also distorted the Commission's use of these cases to make a strawman argument to this Court. 5. Fairbrook fails to effectively distinguish the cases the Commission actually relied upon to show that a reasonable jury could find the harassment actionable. Fairbrook's attempt to distinguish the cases the Commission actually relied upon to show that a jury could find the harassment objectively hostile or abusive is unconvincing and premised on a misreading of the cases. Resp. at 35-38, 47 n.17. In its opening brief, the Commission asserted that the facts of this case are remarkably similar to those in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Br. at 21. In response, Fairbrook contends that Harris is distinguishable because it involved "adverse employment actions through less compensation and a different expense reimbursement system." Resp. at 47 n.17. But the Supreme Court's opinion does not discuss these facts as part of the plaintiff's hostile work environment claim. Fairbrook appears to have gotten these facts, then, from the district court's opinion (although Fairbrook fails to cite it), but a review of the district court's opinion shows that the plaintiff's disparate treatment claims as to compensation and reimbursement were separate and distinct from her hostile work environment claim. See Harris v. Forklift Sys., Inc., No. 03-89-0557, 1991 WL 487444, at * 8 (M.D. Tenn. Feb. 4, 1991) ("In addition to the hostile work environment, plaintiff brings a claim of disparate treatment in terms of her pay, bonus, car allowance and failure to receive a 1987 annual review.") (emphasis added). Therefore, the fact that the plaintiff in Harris brought additional claims of disparate treatment, that were not part of the hostile work environment claim, does not distinguish Harris from the case at bar. Fairbrook also seeks to distinguish Harris on the grounds that it involved "egregious levels of gender-bashing, sexual comments, and implied propositions." Resp. at 47, n.17. But the harassment in Harris was no more egregious than that alleged here. Specifically, the company president did the following: -Often insulted the plaintiff because of her gender and made her the target of unwanted sexual innuendos. -Told her several times in front of others, "You're a woman, what do you know" and "We need a man as the rental manager." -At least once told her she was "a dumb ass woman." -In front of others, suggested that the two of them "go to the Holiday Inn to negotiate [her] raise." -Occasionally asked the plaintiff and other women to get coins from his pants pocket. -Threw objects on the ground in front of him and asked the plaintiff and others to pick them up. -Made sexual innuendos about the plaintiff's and other women's clothing. Harris, 510 U.S. at 19. This conduct is remarkably similar to that alleged here; as both Harris and this case involve sexual comments and innuendo, as well as implicit sexual proposals. If anything, the conduct in this case is more egregious than in Harris, as Kessel made multiple overt requests to see or touch Waechter's breasts. And while Fairbrook also seeks to distinguish Harris by asserting that it involved "strong evidence of emotional distress and psychological harm," the whole point of Harris is that "Title VII does not require" "psychological harm." Id. at 23. In any event, the Commission pointed to evidence that Waechter did suffer emotional harm and that Kessel's harassment prompted her to leave her job. Br. at 9-11. The Commission also relied on Spicer to support its argument that this case should go to a jury. Br. at 22. Fairbrook first asserts that Spicer is distinguishable because it involved a retaliation claim. Resp. at 36. But that fact is irrelevant because a hostile work environment claim stands on its own; harassment is not made more or less severe because the plaintiff has an additional retaliation claim. Next, Fairbrook argues that, contrary to the Commission's assertions, the harassment in Spicer was based on more than just co-worker statements about the plaintiff's nipples. Id. But a review of this Court's opinion does not support Fairbrook's argument. Rather, it reveals that the hostile work environment claim was based on Spicer's co-workers' remarks, as the Commission contended, not on the dissemination of a written memo discussing the Spicer's inappropriate attire. See Spicer, 66 F.3d at 705 (stating that Spicer alleged "sexual harassment in the form of remarks made to her by fellow employees"), at 710 (stating that district found that "remarks made by Spicer's fellow employees" created a hostile work environment, and that "as a result of her fellow employees' comments" Spicer suffered emotional harm) (emphasis added). And, as the Commission asserted in its opening brief, this Court has subsequently characterized Spicer 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.'" Br. at 22 (quoting Conner, 227 F.3d at 197). Fairbrook also asserts that Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999), is distinguishable because its facts are more egregious. But Fairbrook has, at best, misread the case. The Commission cited Burrell as holding that a jury question as to a hostile work environment existed where a supervisor (Glenn Slack) made comments containing sexual references, said he wanted to take a trip to the mountains with the plaintiff, and commented about how the plaintiff looked and how "well built" she was. Br. at 22. Fairbrook asserts that the male supervisor also "grabbed [the] plaintiff's breasts," but this is nowhere in the opinion.<7> Fairbrook also asserts that "in addition, two co-workers also ma[d]e unwanted sexual advances and comments, with one of them grabbing the plaintiff's breasts." Resp. at 47 n.17. While it is true that the Ninth Circuit found that the co-workers' actions also created a hostile work environment, the court concluded that the employer was not liable for the co-worker harassment. Burrell, 170 F.3d at 955. Thus, the only conduct forming the basis of the plaintiff's hostile work environment claim, which was remanded for trial, was the supervisor's harassment, i.e., his comments containing sexual references, his statement he wanted to go to the mountains with the plaintiff, and his comments about her appearance. Thus, as the Commission contended, other courts have concluded that conduct akin to that alleged here creates a jury question as to whether there was a hostile work environment. See also Smith, 129 F.3d at 1413-15 (six statements made over two years, including such comments as plaintiff should "get a little this weekend" to improve her mood and that she "must be a sad piece of ass," were sufficiently severe to go to a jury; also stating that the conduct was sufficiently frequent to go to a jury where there was evidence the comments were repeated frequently); Abeita, 159 F.3d 246 (plaintiff established jury question as to hostile work environment based on ongoing sexual and derogatory gender-based remarks, although only one comment was directed at her). 6. Fairbrook's unfounded attack on the EEOC's "legal sleight of hand" reflects a misunderstanding of the summary judgment standard and underscores why this case should go to a jury. Fairbrook accuses the EEOC of "engag[ing] in a legal sleight of hand to argue its case, compiling selected allegations while ignoring other key facts in order to reach an erroneous conclusion of sexual harassment . . . ." Resp. at 14. This argument reflects a misunderstanding of the summary judgment standard. The Commission's burden in responding to Fairbrook's motion for summary judgment was not to show that the facts in this case compel, as a matter of law, a conclusion of unlawful sexual harassment. Rather, the Commission's burden was to show that, viewing the facts and inferences in the EEOC's favor, a reasonable jury could find in the Commission's favor. See Br. at 16. Consistent with the Supreme Court's and this Court's articulation of the appropriate standard of review of a grant of summary judgment, the Commission's brief presented the facts, and the reasonable inferences to be drawn from those facts, in the light most favorable to the EEOC. See, e.g., Central Wholesalers, 573 F.3d at 169 ("When reviewing a district court's grant of summary judgment, we construe the facts in the light most favorable to the nonmoving party, which in this case is the EEOC."). Thus, the Commission had no obligation to present the facts in a light most favorable to Fairbrook. In any event, the "facts" the Commission purportedly omitted from its opening brief are either disputed facts, legal conclusions based on disputed facts, or are facts included in the Commission's brief. For instance, Fairbrook asserts that summary judgment was appropriate because Fairbrook is a small family practice in which "some sexual joking and comments occurred by" Kessel and others, but that "‘professional' behavior . . . was admittedly expected and practiced." Resp. at 14-15. While it is true that some employees testified that Fairbrook had a professional working environment, despite the presence of sexual jokes, the Commission pointed to evidence – including, foremost, Waechter's testimony – from which a jury could find that the sexual jokes and comments Waechter experienced crossed the line from a professional working environment to a hostile one. Fairbrook also asserts that Waechter did not suffer any adverse employment action and that Kessel never made any sexual advances to Waechter. Resp. at 15. But the Commission did not bring a disparate treatment claim based on an adverse employment action; the Commission's claim here is that Waechter was subjected to a hostile work environment that altered the terms and conditions of her employment. As for whether Kessel made sexual advances, this is a disputed factual issue. Surely a jury could determine that Kessel did make sexual advances based on Waechter's testimony that Kessel repeatedly requested to see or touch her breasts (once after telling her that she "owed him big" for his help on the Frye matter), said she must be a "wild thing" in bed, asked about her sexual libido, and once asked, while shirtless, that she join him in an exam room. In arguing that Kessel's conduct was not objectively severe or pervasive, Fairbrook also asserts that the Commission engaged in a "legal sleight of hand" by not mentioning that Waechter had never complained about the harassment "in a manner that any reasonable person would consider a complaint about sexual harassment," Br. at 15, but the Commission clearly recited in its opening brief evidence that Waechter repeatedly complained to Kessel – Fairbrook's sole owner – about the harassment, as well as to Sheila Cook (the office manager/human resources representative) and possibly also to Kessel's sister-in- law, Sherry Bartnicki, who became the personnel manager. Br. at 3-12. Thus, whether Waechter complained about the harassment is at least a disputed factual issue. But this dispute is altogether irrelevant to a determination of whether the harassment was objectively hostile or abusive because whether a plaintiff complains about harassment is relevant only to an employer's liability for actionable harassment, not to whether Waechter reasonably viewed the harassment as altering the terms and conditions of her workplace. Compare Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (factors to consider in determining whether a hostile work environment exists include the conduct's frequency and severity, and whether it is physically threatening or humiliating or unreasonably interfered with an employee's work performance), with Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (plaintiff's failure to utilize a proven, effective mechanism for reporting harassment is relevant to establishing liability). Similarly, other facts that Fairbrook accuses the Commission of having omitted from its brief were presented but in no way compel a finding that the harassment was not objectively severe or pervasive. Fairbrook points to evidence that Waechter passed up two job offers before she finally left Fairbrook in March 2006 for a better-paying job and that Waechter wrote a positive resignation letter, but the Commission explicitly noted these facts. See Br. at 10-11. In any event, Waechter testified that she declined the two earlier job offers because of the doctor's personalities or patient approaches and that she would not have been as interested in the position she accepted in February 2006, which did pay better and shorten her commute, if it had not been for Kessel's conduct. JA120-22. As the Commission also stated in its opening brief, Waechter explained that she wrote a positive resignation letter, which she submitted a month before she left Fairbrook, because as the sole breadwinner in her family she needed to keep working until her new job started. Br. at 10. A reasonable jury could therefore find Waechter's testimony consistent with the Commission's theory that the harassment escalated after Waechter's maternity leave and that Waechter did not complain about the harassment in her resignation letter because she did not want to burn any bridges while she was still working at Fairbrook. In arguing against the EEOC's purported selective compilation of facts and "legal sleight of hand," Fairbrook also points to evidence that Waechter filed her charge four months after leaving Fairbrook while in the midst of a legal dispute with Frye Memorial Hospital in which she eventually cross-claimed against Kessel. Resp. at 15. Fairbrook specifically asserts that Waechter was sued by Frye and cross-claimed against Kessel "all around the time she decided to pursue the sexual harassment charge." Resp. at 10. Fairbrook's argument is unfounded. The Commission specifically cited these facts, Br. at 12-13, so it cannot be said with a straight face that this is an example of the Commission's selective compilation of the facts. Fairbrook also obscures the actual timeline of events in an evident attempt to show either that Waechter was motivated to file her charge, or altogether made up her accusations of harassment, out of personal animosity towards Kessel because he had refused to continue paying her legal fees in the Fyre dispute or refused to pay her debt to Frye. While it is true that Waechter was embroiled in a dispute with Frye before she left Fairbrook, she actually filed her charge on June 26, 2006, which was about two and a half months before Frye sent her an "intent to sue" letter in early September 2006. JA161, JA143. It was only sometime after that – and the record does not appear to reflect exactly when – that Waechter's attorney filed a third-party complaint against Kessel. See JA225, JA145-46. While Fairbrook would be free to argue to the jury that these events undermine Waechter's credibility, issues of credibility are for a jury to decide at trial, not for a judge to decide on summary judgment. Finally, Fairbrook complains that the Commission failed to mention that Waechter either taped or authorized the taping on the ceiling of posters of young good-looking men above the examination tables. Resp. at 15. As discussed, infra at Section 4, however, this fact says nothing at all about whether a reasonable person in Waechter's position would find Kessel's harassment hostile or abusive. Ironically, Fairbrook's lengthy recitation of facts the Commission purportedly overlooked, and its contention that "the EEOC's arguments should . . . be understood within a larger factual framework that paints [a different] picture," actually underscores why this case should go to the jury. Resp. at 14. As the Commission argued in its brief, this Court has recognized that the question of whether harassment was objectively severe or pervasive is an intensely factual question that a jury should decide. Br. at 21 (quoting Conner, 227 F.3d at 199-200). This is because, as Fairbrook's argument underscores, it is only after "considering ‘all the circumstances,'" which "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target," that a determination can be made as to the objective severity of the harassment. Oncale, 523 U.S. at 81. Thus, it is for the very reason that the facts in this case – which are disputed – can be viewed very differently that a jury should have the opportunity to determine whether the harassment is actionable. A reasonable jury may be convinced by Fairbrook's argument that much of this conduct either did not occur or, if it did, that it was all part of the fun of working in a small practice with "some sexual joking and comments." Resp. at 14. But a reasonable jury hearing all of the facts may also credit the Commission's version of events and determine based on the "constellation of surrounding circumstances" that a reasonable person would have found the harassment abusive. Oncale, 523 U.S. at 82. 7. Fairbrook has not established as a matter of law that it could not be held liable for Kessel's harassment of Waechter. The Commission's opening brief argued that a reasonable jury could find Fairbrook liable for Kessel's harassment of Waechter under the alter ego theory of liability. See Br. at 33-34. Fairbrook did not even respond to this argument, thereby conceding it. Accordingly, this Court should find that the Commission at least raised a jury question as to Fairbrook's liability. Even if, for some reason, this Court nevertheless considers the applicability of the Ellerth/Faragher affirmative defense, this Court should reject Fairbrook's argument that it established the defense as a matter of law. Fairbrook argues that it established the first prong, i.e., that it acted reasonably to prevent and correct promptly any sexually harassing behavior, because it had an anti-harassment policy that it posted on its bulletin board. But Fairbrook's argument does not respond to the Commission's contention, supported by authority from this Court, that the mere existence of a policy does not establish the first prong where, as here, a jury could find that it was ineffective. See Br. at 35-36. Specifically, Fairbrook has conceded that Waechter testified she never received a copy of the policy, and Fairbrook has not disputed that in its thirty- seven year history it never trained any of its employees or managers on the policy. And while Fairbrook contends that Waechter never effectively complained about the harassment, a reasonable jury could find otherwise, see Br. at 4-12, and could also find that Fairbrook did not act reasonably in correcting the harassment since Cook never investigated it, as the policy required her to do. Contrary to Fairbrook's assertion, a reasonable jury could also find that Fairbrook failed to meet its burden of showing the second prong, i.e., that Waechter unreasonably failed to take advantage of any preventive or corrective opportunities. As the Commission discussed in its opening brief, Waechter testified that she complained multiple times to Kessel and once to Cook, and possibly also to Bartnicki, which is what the policy told her to do. See Br. at 36- 37. And while Fairbrook suggests that Waechter failed to take advantage of any corrective opportunities because she failed to complain to the EEOC during her employment, Resp. at 54, Fairbrook has cited absolutely no authority for the proposition that an employee has an obligation to complain to the EEOC. Adopting such a legal requirement would undermine the policy reasons underlying the Supreme Court's adoption of the affirmative defense, which are to allow the employer to fix the harassment in the first place. See, e.g., Faragher, 524 U.S. at 807 (affirmative defense serves "Title VII's . . . basic policies of encouraging forethought by employers and saving action by objecting employees"). Therefore, even if it applies, this Court should conclude that Fairbrook did not establish the Ellerth/Faragher defense as a matter of law. CONCLUSION For the reasons stated, this Court should reverse the entry of summary judgment and remand this case for trial. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ s/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 6,989 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. ______________________________ s/ 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: September 30, 2009 CERTIFICATE OF SERVICE I certify that on September 30, 2009, I electronically filed this brief with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to the registered CM/ECF users listed below, and sent an original and eight hard copies of the brief to the court: Kenneth P. Carlson, Jr. Kristine Marie Sims Constangy, Brooks, & Smith, LLC 100 N. Cherry St., Ste. 300 Winston-Salem, NC 27101 ______________________________ s/ 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> Fairbrook also disputes that it waived this argument. The Commission's opening brief asserted that Fairbrook had waived this argument by failing to "cite any legal authority or record evidence to support [its] perfunctory assertion" that because Kessel was "'a generally crude person to male and female alike,'" his harassment was not sex-based. Br. at 17. Fairbrook has not disputed that it raised this issue only in a footnote. And while Fairbrook now cites facts it raised below to argue that the harassment was severe or pervasive, Fairbrook has not denied that it failed to include any record cites in its footnote disputing that the harassment was based on sex. Finally, while Fairbrook argues that the footnote does include legal authority, the only citation is to Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), for the general principle that conduct must be "because of" sex. R.13, pg, 9, n.3. Therefore, the Commission stands by its assertion that Fairbrook failed to cite any legal authority or record evidence to support its argument that Kessel's harassment was not sex-based. <2> Fairbrook also points to evidence that Fairbrook fired Sigmon, suggesting that he is not a credible witness. See Resp. at 50 n.19. Credibility issues, of course, are for a jury to resolve. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). <3> Fairbrook suggests at pg. 25 of its response that Waechter testified that Kessel made only one sexist comment about female drug reps. But Waechter's testimony contradicts that assertion. See Br. at 3; JA57 ("[Kessel] would make demeaning comments to female drug reps"; stating that Kessel made personal comments about her and "several other female drug reps") (emphasis added). <4> As evidence of Waechter's provocative attire, Fairbrook cites Sharpe's testimony that several of Kessel's male patients asked to see Waechter so they could see her nipples. Resp. at 29 (citing JA274-75, JA278). Sharpe also testified, however, that these patients all followed Waechter to her new practice, which may lead a jury to question whether Sharpe's testimony is the result of sour grapes and whether these patients actually asked to see Waechter because she offered superior patient care, not because of her nipples. In any event, these are credibility issues a jury should sort out. <5> Although Fairbrook cites evidence that Waechter repeated this comment and thought it was funny, Resp. at 26, Waechter herself testified that she told only Samaroo about it. JA123. <6> Because this case alleges only a hostile work environment, the Commission's relief in this case would be limited to equitable relief and compensatory and punitive damages. Due to Fairbrook's size, the compensatory and punitive damage award would be capped at $50,000, so the damages would be minimal in any event. 42 U.S.C. § 1981(b)(3)(A). <7> The plaintiff also alleged that another male supervisor, Mark Barita, harassed her, but the court did not consider these allegations because they appeared for the first time in the plaintiff's affidavit and contradicted her deposition. Burrell, 170 F.3d at 954.