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Appeals court sends North Carolina medical clinic sexual harassment case back to district court

In EEOC v. Fairbrook Medical Clinic, Dr. Deborah Waechter had accused Dr. John Kessel, the sole owner of the Hickory, North Carolina-based clinic, of subjecting her to a sexually hostile work environment.  Kessel’s defense was that he couldn’t be guilty of sexually harassing a single employee because “he was generally a crude person who made vulgar comments to men and women alike.”

Though the district court accepted Kessel’s defense and dismissed the lawsuit, the U.S. Fourth Circuit Court of Appeals reversed the lower court’s ruling in June 2010 and sent the case back to the lower court.  The court of appeals said that Kessel “crossed the line from general crudity into actionable harassment by subjecting (the female colleague) to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.”

The court’s decision included descriptions of the following alleged incidents of sexual harassment that occurred at the Fairbrook Medical Clinic:

The first incident occurred a few weeks after Waechter started working at Fairbook. In January of 2003, Kessel showed her an x-ray of his hip for the supposed purpose of revealing a hip abnormality that he had suffered since adolescence. In the x-ray, a shadowy image of his penis was highly visible. After describing his hip condition, Kessel pointed to the image of his penis and called it “Mr. Happy.” This comment left Waechter “speechless” and uncomfortable. According to Waechter, Kessel showed this x-ray to other people in the clinic “at least 25 to 30 times,” mostly around the time that he had surgery to correct the abnormality. On about five to ten of these occasions, he referred to the image of his penis as “Mr. Happy.” Other employees report having seen the x-ray as well. For example, Joseph Sigmon, the former pharmacist at Fairbrook, testified that the x-ray was left hanging on a wall for four to six weeks and that Kessel showed it to female drug representatives who came to the clinic.

The next incident occurred in February of 2003. During a staff meeting, Kessel stated that he “was very glad that his wife had had a c-section with their triplets because she still had a nice, tight pussy.” Although Waechter was not present at the meeting, employees who were in attendance later reported the incident to her. On a few occasions, Kessel directly discussed his sex life with Waechter, telling her that he “was glad that [his wife] hadn’t had to have a vaginal birth because her muscles were still tight.” When Waechter said that she did not feel comfortable discussing the topic, Kessel said “Well, you’re just like one of the guys,” to which she replied “No, I’m not.”

In March of 2003, Kessel approached Waechter to talk about her attire. Kessel reported that a male patient had remarked that Kessel “sure had hired a lady physician with a nice set of breasts.” He then instructed Waechter to be “aware. . . of [her] breasts and dress appropriately.” When Waechter asked what the patient had been referring to, Kessel responded that the patient had probably been able to see her nipples through her blouse. Waechter replied that she tried to maintain a professional appearance and did not dress in a manner that would show her nipples.

Other employees similarly report that Kessel joked about sex and made demeaning comments about women. Joseph Sigmon recalls that Kessel frequently talked about “oral sex” and “women’s breasts” and occasionally used terms like “slut” and “cunt” to refer to female staff and patients at the clinic. According to Sigmon, Kessel made sexually offensive remarks to “[a]nybody, anytime,” whether male or female. He further stated that Kessel delighted in being a “shock jock” and watching women react to his obscene comments. In a similar vein, another employee reported that Kessel used the term “slut” to refer to his own sister.

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Appeals court sends North Carolina medical clinic sexual harassment case back to district court
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