Fourth Circuit, hostile work environment decision

In Moser v. MCC Outdoor, the Fourth Circuit finds the hostile work environment to be even more egregious than that in the Ocheltree case, because while in Ocheltree the harassment was mostly not directed specifically at the plaintiff, in this case (Moser), the plaintiff bore the brunt of the incredibly crude harassment.  The Fourth Circuit found it reversible error to grant summary judgment on her hostile work environment claims, but not for her remaining claims. The case was on appeal from North Carolina. Some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/061960.U.pdf

 

Moser v. MCC Outdoor, LLC, No. 06-1960 (4th Cir. Dec. 5, 2007).

Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and Robert J. CONRAD, Jr., Chief United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

ARGUED: Stephen Ashley Boyce, Winston-Salem, North Carolina, for Appellant. Mason Gardner Alexander, Jr., FISHER & PHILLIPS, L.L.P., Charlotte, North Carolina, for Appellees. ON BRIEF: Shannon Sumerell Spainhour, FISHER & PHILLIPS, L.L.P., Charlotte, North Carolina, for Appellees.

PER CURIAM:

Serena Moser appeals a district court order granting summary judgment against her in her action against MCC Outdoor, L.L.C. and Shivers Trading & Operating Company, alleging claims of hostile work environment and quid pro quo sexual harassment, termination in retaliation for her opposition to Title VII violations, and wrongful termination in violation of North Carolina public policy. We affirm in part, reverse in part, and remand for further proceedings. . . .

. . . In this case, Moser clearly forecasted sufficient evidence that she perceived her work environment to be abusive. The issue on which we focus is whether this evidence created a genuine issue of material fact regarding whether Moser's perception was reasonable.

We have recognized "that the line between a merely unpleasant working environment and a hostile or deeply repugnant one" is sometimes difficult to locate. Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (internal quotation marks & alteration omitted). While this case demonstrates just how difficult placing that line can be, we nonetheless conclude that the district court erred in granting summary judgment on Moser's hostile environment claim.

Even without taking into account the conduct of Moser's fellow sales representatives, a reasonable jury could determine that Jones constantly made Moser reasonably feel that she was his sexual prey. By telling Moser that she was a hottie, that he would like to see her in a bikini, or that he "would do [her] in a heartbeat," J.A. 300, Jones communicated to Moser that he wanted to have sex with her. Furthermore, the record, viewed in the light most favorable to Moser, showed that Jones regularly took opportunities to treat her in a sexual way. He slipped his arm around her waist, hugged her, repeatedly placed his hand on her thigh during a car trip, and "eyeball[ed] [Moser] up and down constantly." J.A. 268 (emphasis added). He also repeatedly sought to look down her blouse.

Although not quite as severe, many of Jones's other actions could be found by a reasonable jury to have contributed to the pervasiveness of the unwanted sexual conduct. Such a jury could find that many statements or actions that Moser otherwise might have perceived as simply boorish or inappropriate under other circumstances reasonably were humiliating to her in light of the sexually predatory relationship Jones had developed with her. For example, Jones's subjecting Moser to his general comments about what parts of the female anatomy he enjoyed and what sex acts he would like to perform on other women could reasonably be expected to make Moser much more uncomfortable because she knew that he was interested in her body specifically and would like to perform the same acts on her. See Jennings, 482 F.3d at 698 (concluding that a jury could reasonably find that two incidents of direct harassment of the plaintiff "were more abusive in light of the general, sexually charged environment" created by other inappropriate sexual conduct); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) ("Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. . . . Such claims are based on the cumulative effect of individual acts."). Similarly, Jones's showing Moser a pornographic picture, talking about male sex organs, noting that Moser did not have anyone to have sex with, and saying that he and another employee needed to talk to Moser about sexual techniques could reasonably have made Moser extremely uncomfortable for the same reason. And, Jones's telling Moser that he cared for her or loved her and suggesting that he would like to come over to her house also reasonably could be viewed as reiterations of the sexual desire for Moser that Jones had already expressed.

Indeed, the fact that Moser was a specific object of Jones's sexual attention and not just a witness to inappropriate sexual behavior concerning other women makes much of the conduct that Moser allegedly endured arguably more severe--more humiliating in an objective sense--than the conduct we found sufficient to support a plaintiff's verdict in Ocheltree. In Ocheltree, a female employee was subjected every day to graphic sexual talk from her male coworkers, including descriptions that often portrayed women in a "sexually subservient and demeaning light." Ocheltree, 335 F.3d at 333. She was once sung a vulgar song that arguably used her as the subject, and "something sexual" was done to a mannequin anytime Ocheltree walked by. Id. at 328, 332 (internal quotation marks omitted). Here, in contrast, it was Moser's own body that her supervisor was "constantly" "eyeballing" "up and down"-- particularly when Jones was able to look down her blouse. And while the coworkers in Ocheltree discussed having sex with their wives and girlfriends, Jones told Moser that he wanted to have sex with her and stated that he and another employee should talk to her about different sexual techniques. While the male employees at Ocheltree touched a mannequin in sexual ways in front of the plaintiff, Jones actually touched Moser--in the most egregious examples, by placing his hand on her thigh several times during a car trip as she squirmed away to avoid his touch and by pushing her behind a door in his office and looking down her blouse. . . .

In sum, a jury could reasonably conclude from the evidence forecasted that Jones was unyielding in his sexual treatment of Moser, crippling her ability to have a healthy working relationship with him, and causing her significant personal anguish as she attempted to avoid his sexual behavior and deal with the antagonism he directed toward her. On this basis, a rational jury could conclude that Moser reasonably found her working environment to be both hostile and abusive such that the terms of her employment were altered. We therefore reverse the grant of summary judgment on Moser's hostile environment claim.