On Appeal from the United States District Court for the Middle District of Pennsylvania District Court Judge: The Honorable Sylvia H. Rambo (00-CV-01655)
Before: McKEE and Fuentes, Circuit Judges, and POGUE,*fn1 Judge
The opinion of the court was delivered by: Fuentes, Circuit Judge
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court addressed the scope of the vicarious liability of an employer for the discriminatory and harassing conduct of its supervisors in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The Court also sought to clarify the confusion among the Courts of Appeals as to the scope and proper grounds for such liability. To that end, the Court held that an employer shall be strictly liable to a victimized employee for an actionable hostile work environment created by a supervisor, when the discrimination or harassment at issue results in a "tangible employment action."*fn2 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. Furthermore, the Court defined a tangible employment action in general, categorical terms: "a significant change in employment status," often, but not always, resulting in economic injury. Ellerth, 524 U.S. at 761-62; see also Faragher, 524 U.S. at 808. A tangible employment action was also defined by reference to a non-exclusive list of possible actions: "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761; see also Faragher, 524 U.S. at 790. When no tangible employment action results, the employer may still be liable, but it may raise an affirmative defense to liability or damages. The affirmative defense has two components: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
Against this backdrop, the matter on appeal raises novel issues of law of critical importance to civil actions brought in our Circuit pursuant to Title VII. Among those we are asked to review, we address today the issue of whether a constructive discharge constitutes a tangible employment action, such that the affirmative defense to the liability of an employer for the discriminatory conduct of its supervisors would not be available to the employer. Although our analysis is informed by the Supreme Court's decisions in Ellerth and Faragher, our ruling today necessarily reaches issues that were not specifically addressed by the Court in either of those two decisions.
In the underlying action, plaintiff Nancy Drew Suders ("Suders") alleged that she was subjected to a sexually hostile work environment and discriminated against on the basis of her age and political affiliation. She also contended that she was constructively discharged. Suders identified three officers of the Pennsylvania State Police ("PA State Police") as the primary harassers and sought to hold the PA State Police vicariously liable for the actions of its agents. After the close of discovery, defendants moved for summary judgment. The District Court granted the motion in its entirety. As to her claim of a sexually hostile work environment, the District Court found that, although Suders had raised genuine issues of material fact as to each requisite element, the PA State Police was entitled to raise the affirmative defense set forth in Ellerth and Faragher. Having found that the PA State Police met its burden of establishing the affirmative defense, the District Court granted summary judgment as to Suders's claim of a sexually hostile work environment. The Court failed to address Suders's claim of constructive discharge and whether such a claim would affect the availability of the PA State Police's assertion of the affirmative defense.
We will reverse the District Court's judgment as to Suders's claim of a sexually hostile work environment. In so doing, we hold that a constructive discharge, when proved, constitutes a tangible employment action within the meaning of Ellerth and Faragher. Consequently, when an employee has raised a genuine issue of material fact as to a claim of constructive discharge, an employer may not assert, or otherwise rely on, the affirmative defense in support of its motion for summary judgment.
Suders is a wife and mother of three children. From approximately 1988 until her employment with the PA State Police, Suders was Chief Deputy Sheriff and Secretary to the Fulton County Sheriff. She had a wide array of responsibilities, including bookkeeping, transporting prisoners, serving warrants, and administering special programs. Suders also served as an active member of the local chapter of the Republican Party. In connection with her political activities, she became acquainted with Mikael Fix, the Republican County Chairman, and Robert Jubelirer, a State Senator. Sometime in 1998, these individuals suggested to Suders that she apply for an open position with the PA State Police. When she decided to apply, Chairman Fix assisted Suders in her application.
During the pendency of her application and before accepting a position, Suders heard from the Fulton County Sheriff that officers of the PA State Police were opposed to her candidacy because they viewed her as a political appointment. The extent to which Republican party officials intervened on behalf of Suders is unclear. Nevertheless, Chairman Fix eventually told Suders that the PA State Police had approved her application.
Suders accepted a position as a police communications operator ("PCO") with the PA State Police and commenced her employment on or about March 23, 1998, at the McConnellsburg barracks. Her employment began with a probationary period, during which Suders worked alongside another PCO. In June 1998, Suders attended a formal, two-week training program, after which she undertook the duties of a PCO by herself.
Starting from her probationary period and steadily escalating after her two-week training period, Suders alleged that she suffered mistreatment and sexual harassment so severe that she ultimately felt compelled to resign on August 20, 1998. She recounts several instances of name-calling, repeated episodes of explicit sexual gesturing, obscene and offensive sexual conversation, and the posting of vulgar images. According to Suders, the following defendants were the main perpetrators of the sexual harassment that she allegedly suffered: Sergeant Eric D. Easton ("Easton"), Station Commander of the McConnellsburg barracks; Patrol Corporal William D. Baker ("Baker"); and Corporal Eric B. Prendergast ("Prendergast").
As Station Commander, Sergeant Easton was responsible for the day-to-day supervision of the McConnellsburg barracks. Even before she commenced her employment with the PA State Police, Suders encountered problems with Easton. Easton told Suders that he had some concerns about her and that anything she would say would simply be her word against his. Suders also recalled that every time she would go into Easton's office, "he would bring up [the subject of] people having sex with animals. . . . [T]hat's all the man wanted to talk about." Suders v. Easton, No. 00-CV-1655, slip op., at 3 (M.D. Pa. Aug. 16, 2001) (the "Decision") (quotations and citations omitted). Easton and Prendergast often had discussions in front of Suders, and on one occasion, Easton stated that "if someone had a daughter, they should teach her how to give a good blow job!" App. at 151. Easton once commented to Suders that his wife had small breasts.
Easton also made disparaging remarks about Suders's age. He commented to Suders that "[i]t is awful getting old, isn't it Nancy?" Decision, at 2 (quotations and citations omitted). Easton also remarked that "a 25-year-old could catch on faster than [Suders] could." Id. at 3 (quotations and citations omitted).
The sexually charged nature of Easton's conduct toward Suders was not limited to conversation. She was offended "when Defendant Easton, wearing spandex shorts, would sit down in the chair [near Plaintiff 's work space], put his hands behind his head and spread his legs apart." Id. (quotations and citations omitted). She claimed that Easton would leer at her. Suders conceded that Easton never made any overt sexual advances towards her, but she had no idea "what he was going to do." Id. (quotations and citations omitted). Suders avoided Easton to the extent possible.
Easton did not deny making many of the statements above; instead he claimed that Suders misinterpreted them. As to the statements concerning Suders's age, Easton allegedly made them in order to defend Suders and to explain why she might be having trouble catching on to the job. With regard to the statements concerning bestiality and oral sex instruction, Easton claimed that they pertained to actual investigations. Easton also noted that Suders was generally disorganized, frequently late for work, and easily overwhelmed by her job responsibilities. When he attempted to offer constructive criticism, he claimed that Suders did not handle it well.
As a Patrol Corporal at the McConnellsburg barracks, defendant Baker also had a supervisory role at the station.*fn4
According to Suders, Baker was responsible for the most inflammatory harassment that she suffered. Soon after she began working at the communications desk by herself, Suders recalled that Baker had a habit of making obscene gestures to her, as many as five to ten times per night throughout her five-month tenure at the station. These gestures followed the same pattern. In an apparent imitation of a move popularized by televised wrestling, Baker would "cross his hands, grab hold of his private parts and yell, suck it." App. at 65. Suders recalled that "[t]he man did this, and he would beat on it. He would beat his hands on his crotch too and yell suck it. He would ask me to do this garbage. . . . All he wanted to do was play with his crotch." Id. at 65-66. Suders claimed that Baker kept a picture near his work space of a professional wrestler performing this same gesture. In between these offensive acts, Baker would take time to rub his rear end in front of her and remark "I have a nice ass, don't I?" Id. at 67. Another time, Baker announced to Suders, without invitation, that he intended to pierce his genitals and that his wife would pierce her nipple. Baker also referred to Suders as "momma." Decision, at 5 (quotations and citations omitted).
On one occasion, Suders confronted Baker about his offensive conduct, specifically about his repeated gestures. She told him "I don't think you should be doing this." App. at 66. According to Suders, Baker responded by grabbing a straight back chair in the communications room, jumping onto it, and repeating the move, including the verbal exclamation.
As a Corporal, defendant Prendergast shared some supervisory authority with Baker.*fn5 Suders contended that
Prendergast verbally harassed her day after day. He called Suders a liar and told her that "the village idiot could do her job." App. at 69. She also testified that Prendergast would wear black gloves, pound on the furniture in the communications room, and intimidate her. According to Suders's complaint filed on September 18, 2000, Prendergast allegedly told her that she would be "the last political appointee who had a job there at the substation." Id. at 30.
As often happens in cases involving allegations of sexual harassment, the defendants' recollections of the events differ from Suders's. The testimony of the PA State Police officers is notable, however, for its internal inconsistencies and ambiguities. For instance, Baker adamantly denies that he ever performed the wrestling gesture in front of Suders. When asked if he ever saw this harassment take place, however, Prendergast seemed to deny any recollection at first, but then conceded that he may have seen Baker perform it on one occasion. Id. at 252.
As noted above, Suders attempted to confront at least one of the defendants, Baker, by asking him to stop the offensive conduct. She did not, however, report any of the incidents to anyone else at the McConnellsburg barracks. In her own words, Suders explained that "there was no one on that station that I could go to. I had a sergeant there who was talking about abusing children and bestiality. There was no way I was going to be able to tell him. There was nobody." Id. at 68.
In the summer of 1998, the relationship between Suders and the defendants rapidly deteriorated in a series of events that led to her departure. It began when an accident file turned up missing. Baker asked Suders if she had the misplaced file, and when she responded that she did not, Prendergast accused her of taking the file home. Decision, at 5.
At this point, the situation was critical enough that Suders sought help from persons outside the McConnellsburg barracks. During her formal training in June 1998, Suders approached defendant Virginia Smith-Elliott ("Smith-Elliott"), who, in her capacity as Equal Employment Opportunity Officer of the PA State Police, had taught a training class on sexual harassment that Suders had attended. Without mentioning details, Suders told Smith-Elliott that she might need some help. Smith-Elliott gave Suders her phone number. Neither Suders nor Smith-Elliott followed up on the matter.
On July 22, 1998, Suders received a supervisor's notation for failing to complete an assignment given to her back in May. Days later, on July 26, 1998, Suders was reprimanded again, ostensibly because she had not properly disseminated information about an escaped convict from Ohio. Suders claimed that she received advice from someone at the station that she need not worry about the message because the escapee was from Ohio. Based on that advice, Suders simply placed the information in a Corporal's bin. During this time period, the sexual harassment noted above continued unabated.
On or about August 18, 1998, Suders reached a breaking point. She contacted Smith-Elliott again, and this time, Suders specifically mentioned that she was being harassed and that she was afraid. According to Suders, Smith-Elliott was insensitive and unhelpful. Smith-Elliott instructed her to file a complaint on a standard form without telling Suders where to obtain the form. Suders attempted to find the correct form in employee manuals, but never found it. She was fearful that Prendergast was watching her every move. For her part, Smith-Elliott acknowledged that Suders contacted her around then, but that Suders never mentioned any incidents of sexual harassment, complaining only of age and political affiliation discrimination. Smith-Elliott also recalled that she promised to send Suders the proper complaint form.
Two days after the phone conversation with Smith-Elliott, one final incident proved to be the last straw. Suders alleged that, on August 20, 1998, the other officers set her up and falsely accused her of theft. The events leading up to the incident occurred as follows. Officers of the PA State Police were required to take an exam designed to measure computer skills. The results were supposed to be sent to Hollidaysburg, where the department in charge of officer education was located. Suders took the exam several times, and each time her supervisors told her that she had failed. She believed that the officers lied to her about the test results and that they never sent her test scores to Hollidaysburg because she found her exams in a set of drawers in the women's locker room. Suders contended that those drawers were not assigned to any specific officer, while the PA State Police countered that the drawers contained another PCO's private belongings.
At some point, the officers realized that Suders's test results were missing. The officers dusted the drawers and the file inside with a theft detection powder that is invisible to the eye, but reacts when touched by hand, thereby turning the hand of a suspected thief blue. Suders testified that, on that day, she sought to return the papers that she had earlier obtained. Her hands turned unmistakably blue. When the officers in the barracks apprehended Suders, they treated her as they would an accused suspect. She was handcuffed, photographed, and questioned. She felt "abused, threatened and held against her will." Decision, at 7 (quotations and citations omitted).
Any prospect for reconciliation was now lost. Suders had prepared a written resignation prior to the events of August 20, 1998 and had been carrying it with her. After the accusation of theft and the questioning by her supervisors, Suders tendered her resignation. When Suders attempted to leave the barracks, Baker told her that she could not leave because she was a "suspect." Id. Later, the officers took Suders into an interrogation room, where Easton advised Suders of her Miranda rights. After being detained for further questioning, Suders demanded to be released. When Suders reiterated her intent to resign, Easton ultimately permitted her to leave.
B. The District Court's Decision
In the underlying action, Suders asserted that she was discriminated against on the basis of age, political affiliation, and sex. Her claims were based on the following statutes: (1) the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"); (2) Title VII; and (3) the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. § 951, et seq. ("PHRA"). Suders brought all three claims against Easton, Baker, Prendergast, Smith-Elliott, and the PA State Police.
After the close of discovery, defendants moved for summary judgment. The District Court granted the motion in its entirety. First, the District Court held that neither Title VII nor the ADEA contemplates the liability of individual employees. The Court cited our decisions in Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 184 (3d Cir. 1997), and Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077 (3d Cir. 1996), in granting summary judgment in favor of the individual defendants on Suders's Title VII and ADEA claims.
With respect to Suders's ADEA claim against the PA State Police, the Court held that the Eleventh Amendment barred the claim against a state agency. Decision, at 12 (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000)). The Court also noted that, because Eleventh Amendment immunity extends to similar claims based on state law causes of actions, Suders's PHRA claim against the PA State Police was also barred.
With regard to the PHRA claims against the individual defendants, the defendants argued that the Eleventh Amendment immunity enjoyed by the PA State Police also barred any claim against a state official for actions taken within the course of employment. Therefore, the defendants contended that, to the extent that the PA State Police was immune from Suders's claim under the PHRA, the individual defendants were also immune from those claims. The District Court observed that Suders had not responded to this argument and, therefore, granted summary judgment in favor of the individual defendants on the PHRA claims.
The District Court's analysis left Suders with two claims pursuant to Title VII: her hostile work environment and constructive discharge claims against the PA State Police. The Court found that Suders had marshaled enough evidence to raise a genuine issue of fact as to each of the following elements of a Title VII action against an employer: (1) the work environment was sufficiently hostile to constitute intentional discrimination; (2) the discrimination was pervasive and regular; (3) the defendants' conduct detrimentally affected Suders; and (4) the defendants' conduct was sufficiently hostile to offend a reasonable person. Decision, at 13-15 (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).*fn6
On the issue of vicarious liability, however, the District Court proceeded with an analysis of the affirmative defense set forth in Ellerth and Faragher. In that regard, the Court found that "as a matter of law . . . [Suders] unreasonably failed to avail herself of the [PA State Police's] internal procedures for reporting any harassment. This is especially true as [Suders] had personal contact with the Affirmative Action officer early in her employment, but failed to pursue this avenue of complaint." Decision, at 18. Therefore, the District Court found no genuine issue of material fact as to the PA State Police's assertion of the affirmative defense. The Court thus granted the motion for summary judgment on Suders's remaining claim pursuant to Title VII.
The District Court did not address Suders's claim of constructive discharge. As a result, the Court never reached the issue of whether the claim of constructive discharge would affect the availability of the affirmative defense invoked by the PA State Police.
The District Court had jurisdiction over the underlying action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. We have jurisdiction to review the final order of the ...