Federal Cases (but not US Supreme Court), Fourth Circuit, Hostile work environment, Medical Industry Litigation, Result for Employer, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Can you be sexually harassed behind your back?

June 30, 2010 Drew M. Capuder Leave a comment

It might be obvious, but it seems a bit difficult to win on a claim for sexual harassment where all of the harassment occurs behind your back (and by “behind your back”, I mean situations where the harassing behavior occurs when the complaining employee is not physically present to experience or hear what is happening).

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

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

Twenty-Eight Years of Litigation!!!

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

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Age Discrimination, Attorney's Fees, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Jackson County jury awards $2.1 million in age case

June 26, 2010 Drew M. Capuder Leave a comment

On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.

Here is a quick run-down of what was awarded in the case:

Back pay: $142,659 awarded by jury.
Pre-judgment interest: $11,791.84 from date of termination through trial.
Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
Emotional distress: $0.
Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
Litigation expenses: $20,324.16 awarded by judge.
Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.

The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.

What Happened?

Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.

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Federal Cases (but not US Supreme Court), Fourth Circuit, Medical Industry Litigation, Result for Employee, Sexual harassment, Summary Judgment

Was the boss “merely crude”, or was he sexually harassing her?

June 19, 2010 Drew M. Capuder Leave a comment

Sexual harassment claims frequently require judges and juries to distinguish between “merely crude” behavior, which doesn’t violate the employee’s rights, and “sexual harassment”, which does. The Fourth Circuit Court of Appeals addressed that issue in EEOC v. Fairbrook Medical Clinic, PA, 609 F.3d 320 (4th Cir. 2010) (opinion at Fourth Circuit’s site), and didn’t have a lot of trouble concluding that the conduct in issue could reasonably be viewed by a jury as sexual harassment, ruling in favor of the employee. One of the key issues was whether the conduct was “severe or pervasive” enough to constitute a “hostile work environment”. The unanimous opinion was written Judge J. Harvie Wilkinson III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Circuit).

Doctor on Doctor Harassment at Fairbrook Medical Clinic

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

Dr. Waechter’s Lawsuit

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

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

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