Moser v. MCC Outdoor, L.L.C.

256 F. App'x 634
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 5, 2007
Docket06-1960
StatusUnpublished
Cited by9 cases

This text of 256 F. App'x 634 (Moser v. MCC Outdoor, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moser v. MCC Outdoor, L.L.C., 256 F. App'x 634 (4th Cir. 2007).

Opinion

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.

I.

Because this is an appeal from the grant of summary judgment, we view the facts in the light most favorable to Moser, the nonmovant. See Saucier v. Katz, 538 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

A. General

Fairway Outdoor Advertising of the Triad in Greensboro, North Carolina, is a division of MCC Outdoor, L.L.C. and Shivers Trading and Operating Company (collectively, “Fairway”). Fairway hired Mos-er as a sales representative on July 9, 2003. Her responsibilities involved calling on potential customers and selling outdoor advertising space, such as billboard space. She was one of nine sales representatives in the Greensboro office, seven of whom were men. As a sales representative, Moser was required to report to the office for a short time at the beginning and end of every day, but she otherwise spent her work time outside of the office. Moser and her fellow sales representatives operated in an open area with no partitions or walls. Her supervisor was sales manager Eddie Jones, who in turn reported to general manager Dan O’Shea.

Moser’s time at Fairway was a rocky one. She had disputes with several Fairway employees, sometimes resulting in heated exchanges. Although Moser was on the receiving end of much objectionable behavior, she at times contributed to the less than professional atmosphere at Fairway. For example, she sometimes called other employees names, she joked that she was smarter than they were, and she once shot other employees with a water gun. On one occasion, she “dressed ... [Jones] down” in front of O’Shea after a sales *636 meeting in which she felt that she was being treated unfairly. J.A. 282. Another time, she was in Jones’s office complaining about the behavior of another sales representative. When the meeting was not going as she had hoped, she told Jones, “You’re getting on my nerves” and “walked off.” J.A. 257 (internal quotation marks omitted). Moser received written warnings for both of these incidents.

B. Moser’s Complaints Concerning Other Sales Representatives

Moser’s primary antagonist in the office among the salesmen was George Wilkes. Moser and Wilkes were very competitive and often needled each other, leading to escalating conflicts that sometimes re- ■ quired intervention and resulted in verbal reprimands. Even when the two were not openly hostile, Wilkes often irritated Mos-er. For example, he asked her about her personal life and tried to set her up with men; he commented that he thought she would have an affair with someone from the office; he once told her to slow down because she was “bouncing,” J.A. 308 (internal quotation marks omitted); and once he made a comment about her backside. He smacked her on the bottom with a water bottle on one occasion. He also called her a “dingbat” and a “dumb blonde” after she had an accident while driving a company car. J.A. 242 (internal quotation marks omitted). Moser complained to O’Shea about Wilkes’ behavior, specifically mentioning his popping her on the bottom with the bottle and a number of non-sexual comments he made to her. She lodged similar complaints about Wilkes to Jones.

Moser also had a few unpleasant interactions with sales representative Kelly Phipps, although she admits that she had no “real problem[]” with him. J.A. 322. On one occasion, Phipps asked her if she was gay. On another, Phipps told her that he felt like she dressed like a man, and he “went to touch [her] breast.” J.A. 255. She rebuffed him, resulting in only his fingertips touching her. Another time, Phipps told Moser that he “would do” her. J.A. 321.

Although Moser identifies sales representative Tom Poe as a friend and the only person she felt “comfortable talking with” at Fairway, J.A. 317, he also was guilty at times of acting unprofessionally toward her. For example, Poe once asked Moser if she was wearing a thong and if she had had sex with her then-current boyfriend. He suggested that she find someone with whom she could have casual sex. He said he himself would consider having sex with her if he were not married. Poe talked about another woman suffering from premenstrual syndrome and told Moser details of how he had sex with his wife. He also told her how female clients used to rub their breasts against him. One time Poe picked Moser up around the waist and carried her around, trying to “pull up [her] skirt.” J.A. 309 (internal quotation marks omitted). Although Moser did not explain why she thought Poe did that, she testified that at the time she “didn’t think [he] meant anything by it,” and she soon “forgot about” the incident. J.A. 310. Moser admitted that she and Poe “did joke around.” J.A. 312.

C. Complaints Concerning Jones

Moser experienced far more serious problems with her supervisor, Jones. Jones once told Moser she was a “hottie,” J.A. 295 (internal quotation marks omitted), and made a similar comment on another occasion. He once said to Wilkes (in front of Moser) that Moser seemed to come by Jones’s house whenever Jones’s wife was not around. Jones told Moser one time on a car trip that he “would do [her] in a heartbeat.” J.A. 300 (internal quotation marks omitted). Another time, *637 he said, “It’s a good thing you work out, because you don’t have a boyfriend to have sex with.” J.A. 306 (internal quotation marks omitted). He once showed her a pornographic picture of a little boy “with a very large penis” and told her that it was him when he was young. J.A. 301. When she told him that that was very inappropriate and pinched him, Jones told her that if she pinched him again, he would grab her breast. 1 He told her on one occasion that he liked small breasts, which she understood to refer to her. Finally, Jones once commented to another male employee, in front of Moser, “[W]e need to talk to Serena about different sexual techniques.” J.A. 307 (internal quotation marks omitted).

Jones also talked to Moser on several occasions about how to tell how long a man’s penis is and how he liked women’s breasts and bottoms. In Moser’s presence, Jones commented one time to Poe that he could help a particular woman with back problems by having sex with her “doggy-style.” J.A. 286 (internal quotation marks omitted). On another occasion, he and Poe agreed in front of Moser that they “would do [a particular woman] in a heartbeat.” J.A.287.

One day, before an upcoming conference, Jones told Moser to “bring a bikini [because] there’s a hot tub at the hotel we can use.” J.A. 293 (internal quotation marks omitted). He also told Moser that he “care[d] for” her and that he otherwise would have fired her for inappropriate behavior. J.A. 270, 300 (internal quotation marks omitted).

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