Robinson v. City of Pittsburgh

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
7-14-1997
Robinson v. City of Pittsburgh
Precedential or Non-Precedential:
Docket 95-3594
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Filed July 14, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-3594
CARMEN L. ROBINSON; NATHANIEL HAWTHORNE, JR.,
Wife and Husband,
Appellants
v.
CITY OF PITTSBURGH, EARL BUFORD, CRAIG B.
EDWARDS; JAMES N. DICKERSON
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 94-1378)
Argued: January 6, 1997
Before: GREENBERG, COWEN, and ALITO, Circuit Judges
(Opinion Filed: July 14, 1997)
SAMUEL J. CORDES (Argued)
OGG, JONES, CORDES
& IGNELZI, L.L.P.
245 Fort Pitt Boulevard
Pittsburgh, PA 15222
Attorney for Appellants
JACQUELINE R. MORROW
CITY SOLICITOR
JOHN G. SHORALL (Argued)
Assistant City Solicitor
SUSAN E. MALIE
Assistant City Solicitor
City of Pittsburgh
Department of Law
313 City-County Building
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
Appellants Carmen Robinson and Nathaniel Hawthorne,
Jr. worked as police officers for appellee City of Pittsburgh
("the City"). Robinson alleges that she was sexually
harassed by appellee James Dickerson (her supervisor) and
that appellees Craig Edwards (an assistant police chief) and
Earl Buford (the chief of police) knew of the harassment but
failed to take action to stop it. Robinson asserted a variety
of claims under both federal and state law against
Dickerson, Edwards, Buford, and the City. At the close of
plaintiffs' case, the district court granted defendants'
motion for judgment as a matter of law on several of
Robinson's claims. The jury returned verdicts for
defendants on the claims that remained. In this appeal,
plaintiffs challenge the grant of judgment as a matter of
law, a jury instruction, and certain evidentiary rulings. We
affirm in part, reverse in part, and remand.
I.
Robinson began working as a Pittsburgh police officer in
1990. Hawthorne, her husband, also worked as a police
officer for the City. In January 1992, Robinson was
assigned to a drug suppression unit commanded by then-
2
Lieutenant Dickerson. Hawthorne worked in the same unit
until June 1992, and Robinson contends that after he left
to begin a new assignment, Dickerson began sexually
harassing her. According to Robinson, the harassment
included unhooking her bra, snapping her bra strap,
touching her hair and ears, telling her "you stink pretty,"
making comments about the size of her breasts, blowing
her a kiss, asking her out for a drink, touching her leg
under a table, putting his hands around her waist,
dropping his keys down the back of her shirt and
attempting to retrieve them, and describing the position in
which he and Robinson would have sex if they were to do
so. Robinson testified that she never acceded to any of
Dickerson's sexual advances or reciprocated any of his
sexual remarks and that she made it clear to him that his
conduct was unwelcome.
In the fall of 1992, Robinson approached Assistant Chief
Edwards to inquire about a transfer to the detective bureau
(which would have been a promotion). Edwards had no
direct supervisory authority over Robinson, but was one of
two second-in-command officers who reported directly to
Chief Buford. (App. 89-90; 585-86) Robinson testified that
she told Edwards that she thought Dickerson "was hitting
on [her]" and "coming on to [her]." (App. 146-47) She said
that Edwards advised her to "wait it out" because he
thought that Chief Buford might be leaving soon for
another job. Edwards reportedly said that Buford might
take Dickerson with him and that even if Dickerson
remained, Buford's departure would allow Edwards to
obtain power over Dickerson. (App. 147) Until then,
however, Edwards allegedly told Robinson he could not do
anything about Dickerson because Buford protected him.
(App. 147-48) In addition, according to Robinson, Edwards
told her that Buford would not do anything to help her
because Dickerson "had done this before" and Buford had
not done anything following that incident. (App. 148)
Robinson testified that she believed "waiting it out" was a
"viable solution" and that she did not tell her husband
about the harassment or do anything else about it at the
time. (App. 149)1
_________________________________________________________________
1. In addition to this request, Robinson sought a transfer to the detective
bureau on several other occasions, but she never succeeded in obtaining
such a transfer.
3
In May 1993, Robinson wrote a letter to Buford in which
she asked to meet with him. According to Robinson, her
original draft of the letter, prepared in March or April 1993,
stated that Dickerson was "coming on to [her]" and that she
thought that this was "the reason for [her] now bad
reputation." (App. 168) Robinson recounted that she gave
the letter to Edwards to look over and that Edwards told
her that she could not send the letter through the chain of
command because it was too "specific in detail." According
to Robinson, Edwards recommended that she "just be
specific about requesting a meeting." (App. 166-67) The
original draft was never introduced in evidence. The letter
that was actually sent to Buford requested a meeting in
order to discuss "career goals" and "past conflicts" and to
"seek guidance with future endeavors." The letter made no
mention of sexual harassment. Upon receipt of the letter,
Buford returned it to Robinson with a notation that it
needed to be transmitted through the proper chain of
command rather than sent directly to him.
In January 1994, Robinson was detailed to the criminal
intelligence unit, where her direct supervisor was Sergeant
William Bochter and her second-line supervisor was Chief
Buford. In this assignment, neither Dickerson nor Edwards
possessed any supervisory authority over Robinson. In May
1994, Robinson met with Edwards, told him she was "fed
up" with the harassment, and stated her intention to file a
complaint. She testified that Edwards recommended that
she file a complaint with the Equal Employment
Opportunity Commission ("EEOC").
A few weeks later, Robinson filed a complaint with
Bochter, who forwarded it to Buford on May 31, 1994. On
June 1, 1994, Robinson filed a complaint with the EEOC
alleging that Dickerson had sexually harassed her, and on
July 6, 1994, she filed a similar complaint with the Bureau
of Police Office of Professional Standards ("OPS"). OPS's
investigation, which was completed in September 1994,
concluded that probable cause existed to substantiate
Robinson's claim.2 In October 1994, Robinson stopped
_________________________________________________________________
2. The district court did not allow the OPS report itself to be introduced
in evidence, but it permitted the investigating officer, Carla Gedman, to
testify as to her conclusions on the ground that they were admissions by
a party-opponent and thus not hearsay.
4
reporting for work, and she has not returned to her job
since that time. She was nonetheless promoted to sergeant
in February 1995.
II.
In August 1994, Robinson and Hawthorne filed suit in
district court against the City, Buford, Edwards, and
Dickerson. Under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), Robinson asserted claims against
the City for hostile work environment and quid pro quo
sexual harassment and for retaliation, as well as a claim for
hostile work environment sexual harassment against
Dickerson. Under 42 U.S.C. § 1983, she asserted claims,
based on alleged violations of the Equal Protection Clause,
against all four defendants. She claimed that all four were
responsible for unconstitutional sex-based discrimination
and that all but Dickerson were liable for unlawful
retaliation. In addition, Robinson asserted claims under
Pennsylvania law for assault, battery, and intentional
infliction of emotional distress against Dickerson. Robinson
sought punitive damages on all claims. Hawthorne sued
Dickerson under Pennsylvania law for loss of consortium.
Dickerson counter-claimed against Robinson for
defamation.
At the close of plaintiffs' case, defendants moved for
judgment as a matter of law pursuant to Fed. R. Civ. P.
50(a). The district court granted defendants' motion as to
the Title VII hostile work environment claim against
Dickerson because individuals cannot be liable under that
statute. See Sheridan v. E.I. DuPont de Nemours and Co.,
100 F.3d 1061, 1077-78 (3d Cir. 1996) (en banc). The court
granted the motion as to all of Robinson's § 1983 claims
against the City on the ground that there was insufficient
evidence of an unconstitutional policy or custom.
Furthermore, with respect to the Title VII retaliation claim
against the City (and in the alternative with respect to the
§ 1983 retaliation claim against the City, Buford, and
Edwards), the court held that Robinson had not shown a
causal link between her protected activity and any adverse
employment action. The court granted the motion with
respect to Robinson's Title VII quid pro quo claim against
5
the City because the court found insufficient evidence that
a job benefit or detriment was conditioned upon Robinson's
response to Dickerson's advances or that her response to
his advances in fact affected a tangible aspect of her
employment. Moreover, the court granted defendants'
motion as to the § 1983 claims against Buford and Edwards
on the ground that there was insufficient evidence that
either was personally involved in any deprivation of
Robinson's rights (as well as, with respect to the retaliation
theory, on the alternative ground described above). Finally,
the court granted the motion as to the intentional infliction
claim against Dickerson and struck Robinson's demand for
punitive damages on all claims because there was
insufficient evidence of outrageous conduct.
The claims that went to the jury were thus as follows: (1)
the Title VII hostile work environment claim against the
City; (2) the § 1983 sex discrimination claim against
Dickerson; (3) the assault and battery claims against
Dickerson; (4) Hawthorne's loss of consortium claim against
Dickerson; and (5) Dickerson's defamation counter-claim.
The jury returned verdicts for the defense on all of
plaintiffs' claims, as well as a verdict for Robinson on the
counter-claim.
Robinson appeals from the grant of judgment as a matter
of law on all claims except the Title VII and intentional
infliction claims against Dickerson.3 In addition, she
contests certain evidentiary rulings and a jury instruction
that allegedly affected the jury's rejection of the claims that
it was permitted to consider. Nothing is at issue in this
appeal with respect to the defamation counter-claim, the
assault and battery claims, or the loss of consortium claim.
We exercise plenary review over the district court's grant
of judgment as a matter of law. Delli Santi v. CNA Ins. Co.,
88 F.3d 192, 200 (3d Cir. 1996). "Our role is to determine
_________________________________________________________________
3. Robinson's statement of issues includes the question whether the
court properly granted judgment as a matter of law on what she
describes as her "claim" for punitive damages, Appellants' Br. at 2, but
her brief does not mention this issue. She has therefore waived it.
Pennsylvania v. Dept. of Health and Human Services, 101 F.3d 939, 945
(3d Cir. 1996).
6
whether the evidence and justifiable inferences most
favorable to the [non-moving] party [would have] afford[ed]
any rational basis" for a verdict in favor of the non-moving
party. Id. (quotation omitted). We exercise plenary review
over the jury instructions given by the district court in
order to determine whether, read as a whole, the
instructions stated the correct legal standard. Miller v.
CIGNA Corp., 47 F.3d 586, 591 (3d Cir. 1995) (en banc).
Finally, we review the district court's decisions to admit or
exclude evidence for abuse of discretion, Glass v.
Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994),
although our review is plenary as to the interpretation or
application of a legal standard underlying such a decision.
West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir.
1995). We will not reverse on the basis of an erroneous
decision to admit or exclude evidence unless the error
affected a "substantial right" of the aggrieved party. Id.III.
Section 1983 Equal Protection Claim Against Buford,
Edwards, and the City
To prevail on her § 1983 equal protection claim, Robinson
was required to prove that she was subjected to "purposeful
discrimination" because of her sex. Keenan v. City of
Philadelphia, 983 F.2d 459, 465 (3d Cir. 1993). Moreover,
to hold Buford or Edwards liable under § 1983 for such an
equal protection violation, Robinson was required to prove
that they personally "participated in violating [her] rights,
. . . that [they] directed others to violate them, or that [they]
. . . had knowledge of and acquiesced in [their]
subordinates' violations." Baker v. Monroe Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995). See also Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Robinson
does not contend that either Buford or Edwards personally
engaged in any discriminatory conduct against her or that
they directed anyone else to do so. Rather, her argument is
that Buford and Edwards were aware of and acquiesced in
Dickerson's sexual harassment. We must thus determine,
taking Robinson's evidence as true and giving her the
benefit of all reasonable inferences, what Edwards and
7
Buford knew about the harassment, when they learned
about it, and what, if anything, they did in response.
A. Robinson does not seek to hold Edwards liable for
anything that he did or did not do following her May 1994
complaint. Rather, she contends that she told Edwards in
1992 that Dickerson was "hitting on [her]" and that
Edwards "acquiesced" in Dickerson's conduct because he
did not take any action to stop Dickerson but instead told
Robinson to "wait it out" because Buford and/or Dickerson
might soon be changing jobs.
Edwards responds that the jury's verdict for the City on
Robinson's Title VII hostile work environment claim
conclusively establishes that he cannot be liable under
§ 1983 for acquiescing in her subjection to a hostile
environment. If there was no hostile environment in the
first place, Edwards's argument goes, then he logically
cannot be liable for knowingly acquiescing in the existence
of one. We reject this argument because, among other
things, it ignores the fact that the jury's verdict does not
necessarily mean that it found that Robinson was not
subjected to a hostile work environment. Instead, the jury
might have rejected her Title VII hostile work environment
claim on the ground that the City had an effective policy
against sexual harassment. See, e.g., Bouton v. BMW of N.
Am., Inc., 29 F.3d 103, 110 (3d Cir. 1994).
We agree with Edwards, however, that there was
insufficient evidence to show that he knew of and
acquiesced in Dickerson's alleged sexual harassment. It is
true that the jury could have found that Edwards knew in
1992 that Dickerson was "hitting on" Robinson and that
Edwards did not take any action to stop Dickerson's
conduct. But it is undisputed that, while Edwards had a
higher rank than Dickerson, he possessed no actual
supervisory authority over him. (App. 1031-32) Regardless
of whether the evidence presented by Robinson would be
adequate if Edwards had actual supervisory authority over
Dickerson, we do not believe that Edwards can be held
liable under § 1983 for failing to take action to correct the
behavior of an individual over whom he had no actual
control.
8
"A defendant in a [§ 1983] action must have personal
involvement in the alleged wrongs." Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988) (emphasis added). See
also, e.g., Andrews, 895 F.2d at 1478 ("there must be some
affirmative conduct by the supervisor that played a role in
the discrimination") (citing Rizzo v. Goode, 423 U.S. 362,
377 (1976)). Our cases have held that "actual knowledge
and acquiescence" suffices for supervisory liability because
it can be equated with "personal direction" and "direct
discrimination by the supervisor." Id. (quoting Rode, 845
F.2d at 1207). Where a supervisor with authority over a
subordinate knows that the subordinate is violating
someone's rights but fails to act to stop the subordinate
from doing so, the factfinder may usually infer that the
supervisor "acquiesced" in (i.e., tacitly assented to or
accepted) the subordinate's conduct.4 But where actual
supervisory authority is lacking, mere inaction, in most
circumstances, does not reasonably give rise to a similar
inference. As a general matter, a person who fails to act to
correct the conduct of someone over whom he or she has
no supervisory authority cannot fairly be said to have
"acquiesced" in the latter's conduct.
General tort principles provide a useful analogy. Unless a
"master"-"servant" relationship exists, the circumstances in
which one person may be held liable for a tort committed
by another are quite limited, see Restatement (Second) of
Torts §§ 876-878 (1977), and none appears to be applicable
here. A claim against a "master" based on a tort committed
by a "servant" bears a resemblance to a § 1983 claim
against a government supervisor based on a constitutional
tort committed by a subordinate,5 but a person cannot be
a "master" unless he or she has "the right to control the
physical conduct" of the servant. Restatement (Second) of
Agency § 2(1) (1957). By analogy, we hold that, except
perhaps in unusual circumstances, a government official or
employee who lacks supervisory authority over the person
who commits a constitutional tort cannot be held, based on
_________________________________________________________________
4. See Webster's Third New International Dictionary 18 (1971); Random
House Dictionary of the English Language Unabridged Ed. 13 (1967).
5. We do not suggest, however, that all rules applicable to the former
type of claim may be applied by analogy to the latter.
9
mere inaction,6 to have "acquiesced" in the unconstitutional
conduct.
Here, it is clear that Edwards did not control or have the
right to control Dickerson's physical conduct in the
performance of his job, and Edwards is thus not liable for
Dickerson's conduct.7 Accordingly, we affirm the district
_________________________________________________________________
6. Of course, if the government official or employee had sufficient
personal involvement in the constitutional tort, he or she may be held
liable. In this context, the rules set out in §§ 876 and 877(a) of the
Restatement (Second) of Torts provide useful guidance. Section 876
states:
For harm resulting to a third person from the tortious conduct of
another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a
common design with him, or
(b) knows that the other's conduct constitutes a b reach of duty
and gives substantial assistance or encouragement to the other so
to conduct himself, or
(c) gives substantial assistance to the other in a ccomplishing a
tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.
Section 877(a) provides:
For harm resulting to a third person from the tortious conduct of
another, one is subject to liability if he
(a) orders or induces the conduct, if he knows or should know of
circumstances that would make the conduct tortious if it were his
own . . . .
7. All of our prior cases discussing the issue of supervisory liability for
"acquiescence" involved defendants who had actual authority to control
the conduct of the person alleged to have violated the plaintiff's rights.
Our decision here is thus fully consistent with our holdings in those
cases.
For example, in Baker, 50 F.3d at 1193-94, we held that the officer
who was in charge of a drug raid could be liable under § 1983 for certain
allegedly illegal actions taken by the officers under his command where
there was "sufficient evidence to permit an inference that [the
commanding officer] knew of and acquiesced in the treatment the
[plaintiffs] were receiving at the hands of the other officers acting under
10
court's grant of judgment as a matter of law to Edwards on
Robinson's § 1983 equal protection claim.
B. Robinson argues that Buford is liable under§ 1983
for Dickerson's conduct because Buford "took absolutely no
action to remedy Robinson's situation, and the evidence
suggests that he thought Dickerson's conduct a joke."
Appellants' Br. at 22. We disagree, because we are unable
to find any evidence that Buford had any knowledge of any
alleged harassment before May 1994. (As with Edwards,
Robinson does not argue that Buford is liable based on
anything he did or failed to do following her May 1994
complaint.)
Robinson testified that Edwards told her in 1992 that it
would not serve any purpose for him to forward her
complaint to Buford because Buford would not take it
seriously. It seems most doubtful that Edwards's statement
would have been admissible at trial against Buford, but in
_________________________________________________________________
his supervision." 50 F.3d at 1193. The commanding officer indisputedly
had the authority to control the conduct of the officers under his
command.
In Keenan, 983 F.2d at 465-68, the plaintiffs alleged that they were
transferred in retaliation for protected activity, and the jury agreed. We
held that four supervisors could be liable under § 1983 where they knew
of the plaintiffs' protected activity and approved the transfers anyway. Id.
at 468. We concluded that "the evidence [was] sufficient to establish that
the plaintiffs were impermissibly disciplined by [the four supervisors] for
conduct that constituted protected activity." Id. Keenan is
distinguishable because the four supervisors approved the transfers and
possessed formal authority over their respective subordinates who
recommended the transfers.
In Andrews, 895 F.2d at 1478-79, the supervisors not only had direct
authority over the primary harassers but also were personally involved
in the unconstitutional conduct. We upheld a verdict against one
supervisor who "personally participated in" and "condoned" the
harassment perpetrated by other officers under his supervision. As to
another supervisor, "the man who was ultimately responsible for the
conduct of the Division," we held that the evidence supported the jury's
finding that he was aware of the harassment and not only did nothing
to stop it, but told the plaintiff that "you have to expect this working
with the guys." Id. at 1479.
11
any event this statement in no way tends to show that
Buford in fact was aware in 1992 that Dickerson was
sexually harassing Robinson. The uncontradicted evidence
shows that Buford first learned of Robinson's complaint
when Bochter told him about it on May 31, 1994. We
therefore affirm the district court's grant of judgment as a
matter of law to Buford on Robinson's § 1983 equal
protection claim.
C. Our conclusion that Buford is not liable under
§ 1983 for Dickerson's alleged sexual harassment requires
us to reject as well Robinson's submission that the City is
liable under § 1983 for Dickerson's alleged sexual
harassment. The City, as a municipality, is not liable
through respondeat superior for the constitutional torts of
its employees. Monell v. Dept. of Social Services, 436 U.S.
658 (1978). Municipal liability attaches only "when
execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the
injury" complained of. Id. at 694. As we explained in
Andrews:
A government policy or custom can be established in
one of two ways. Policy is made when a decisionmaker
possess[ing] final authority to establish municipal
policy with respect to the action issues an official
proclamation, policy, or edict. A course of conduct is
considered to be a "custom" when, though not
authorized by law, such practices of state officials [are]
so permanent and well-settled as to virtually constitute
law.
895 F.2d at 1480 (quotations omitted) (emendations in
original).
Robinson does not argue that the City is liable because
it maintained a "custom" of permitting sexual harassment.
Rather, she asserts that the City is liable through Buford,
who is concededly a policymaker whose conduct is
attributable to the City. In accordance with our holding
that Buford is not liable under § 1983 for Dickerson's
alleged sexual harassment, we conclude that the City
likewise is not liable under § 1983. We therefore affirm the
12
district court's grant of judgment as a matter of law to the
City on Robinson's § 1983 equal protection claim.
IV.
Title VII Quid Pro Quo Sexual Harassment Claim
Against the City
In addition to claiming that Dickerson's sexual
harassment created a hostile work environment, Robinson
alleged that Dickerson engaged in quid pro quo sexual
harassment, for which the City was liable under Title VII.
The district court granted judgment as a matter of law for
the City on this claim, but we hold that Robinson presented
sufficient evidence to go to the jury on this claim.8
A. This court has not yet had occasion to consider the
elements of a quid pro quo claim, but we agree with the
formulation set out in 29 C.F.R. § 1604.11(a)(1) and (2),
which provides:
Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual
nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's
employment [or] (2) submission to or rejection of such
conduct by an individual is used as the basis for
employment decisions affecting such individuals. . ..
See also, e.g., Heyne v. Caruso , 69 F.3d 1475, 1478 (9th
Cir. 1995); Cram v. Lanson & Sessions, 49 F.3d 466, 473
(8th Cir. 1995); Karibian v. Columbia University , 14 F.3d
773, 777 (2d Cir. 1994); Martin v. Nannie and the
_________________________________________________________________
8. We reject at the outset defendants' contention that there is no
evidence that Dickerson ever made a sexual advance to Robinson. The
record is replete with evidence of implicit sexual advances, so we take
defendants to mean that only an explicit request for sex qualifies as a
sexual advance. We disagree. We note simply that the evidence
previously summarized concerning Dickerson's alleged statements and
actions would have entitled the jury to find that Dickerson made sexual
advances to Robinson.
13
Newborns, Inc., 3 F.3d 1410, 1416 (10th Cir. 1993); Lipsett
v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988).9
Under this test, the consequences attached to an
employee's response to the sexual advances must be
sufficiently severe as to alter the employee's "compensation,
terms, conditions, or privileges of employment," 42 U.S.C.
§ 2000e-2(a)(1), or to "deprive or tend to deprive [him or
her] of employment opportunities or otherwise adversely
affect his [or her] status as an employee." 42 U.S.C.
§ 2000e-2(a)(2). This does not mean that the employee must
be threatened with or must experience " ``economic' or
``tangible' discrimination." Meritor, 477 U.S. at 64. See also
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). But
by the same token, not every insult, slight, or
unpleasantness gives rise to a valid Title VII claim. In
Meritor, the Supreme Court noted that "not all workplace
conduct that may be described as ``harassment' affects a
``term, condition, or privilege of employment.' " 477 U.S. at
67. The Court also suggested that the " ``mere utterance of
an ethnic or racial epithet which engenders offensive
feelings in an employee' would not affect the conditions of
employment to [a] sufficiently significant degree to violate
Title VII." Id. (quoting Rogers v. EEOC, 454 F.2d 234, 238
(5th Cir. 1971)). Thus, whether in a hostile work
_________________________________________________________________
9. Courts have unanimously held that an employer is strictly liable for
quid pro quo harassment by a supervisor having actual or apparent
authority to carry out the threat or promise that is made to the victim.
See Karibian, 14 F.3d at 777. See also Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 76 (1986) (Marshall, J., concurring in the judgment) ("every
Court of Appeals that has considered the issue has held that sexual
harassment by supervisory personnel is automatically imputed to the
employer when the harassment results in tangible detriment to the
subordinate employee"). This rule differs from that which applies in a
hostile work environment case. See Bouton v. BMW of N. Am., Inc., 29
F.3d 103, 106-07 (3d Cir. 1994). This distinction has been criticized,
see, e.g., J. Hoult Verkerke, Notice Liability in Employment Discrimination
Law, 81 Va. L. Rev. 273, 277 (1995), but since the parties here have not
addressed the issue, we assume that the City would be liable for any
quid pro quo sexual harassment committed by Dickerson. Cf. Bouton, 29
F.3d at 106-07 (stating, in a case involving only a hostile environment
claim, that "[w]ithout the agency relationship, quid pro quo harassment
would be impossible, so the employer is responsible").
14
environment case or a quid pro quo case, objectionable
conduct attributable to an employer is not always sufficient
to alter an employee's terms, conditions, or privileges of
employment and is thus not always sufficient to violate
Title VII.
Subsections (1) and (2) of 29 C.F.R. § 1604.11(a) differ in
that subsection (1) addresses cases in which an employee
is told beforehand that his or her compensation or some
other term, condition, or privilege of employment will be
affected by his or her response to the unwelcome sexual
advances, whereas subsection (2) addresses cases in which
the employee's response to sexual advances is thereafter
used as a basis for a decision concerning compensation,
etc. Under subsection (1), a quid pro quo violation occurs
at the time when an employee is told that his or her
compensation, etc. is dependent upon submission to
unwelcome sexual advances. At that point, the employee
has been subjected to discrimination because of sex. (This
is so, of course, because, if the employee had been a
member of the opposite sex, his or her compensation, etc.
presumably would not have been made dependent on
submission.) Whether the employee thereafter submits to or
rebuffs the advances, a violation has nevertheless occurred.
Like the Second Circuit, we "do not read Title VII to punish
the victims of sexual harassment who surrender to
unwelcome sexual encounters. . . . The supervisor's
conduct is equally unlawful under Title VII whether the
employee submits or not." Karibian, 14 F.3d at 778.10
Similarly, there is a violation under subsection (1) even if
the employee rebuffs the advances and his or her
compensation, terms, conditions, or privileges of
employment are not in fact altered, i.e., even if the
supervisor does not follow through on his or her threat. The
threat is sufficient to constitute "discriminat[ion] . . . with
_________________________________________________________________
10. Whether the employee "submi[tted] to the supervisor's advances is
certainly relevant" because it bears on "the issue whether the sexual
advances were unwelcome, not whether unwelcome sexual advances
were unlawful." Karibian, 14 F.3d at 779. In this case, it is undisputed
that Robinson refused to submit to Dickerson's alleged advances, and it
is clear that the jury would have been entitled tofind that the advances
were unwelcome.
15
respect to . . . compensation, terms, conditions, or
privileges of employment, because of . . . sex." 11 42 U.S.C.
§ 2000e-2(a)(1). But see Gary v. Long, 59 F.3d 1391, 1396
(D.C. Cir. 1995).
Under subsection (2), a plaintiff must make a showing
that differs significantly from that required under
subsection (1). Under subsection (2), the plaintiff must
show that his or her response to unwelcome advances was
subsequently used as a basis for a decision about
compensation, etc. Thus, the plaintiff need not show that
submission was linked to compensation, etc. at or before
the time when the advances occurred. But the employee
must show that his or her response was in fact used
thereafter as a basis for a decision affecting his or her
compensation, etc.
B. Robinson contends that Dickerson linked her
response to his advances to the job detriments of "a bad
reputation at work" and "unjust reprimands." Appellants'
Br. at 28-29. Robinson explains that "[m]any times after
Robinson would reject him, Dickerson unjustifiably
reprimanded her in a very harsh manner and in front of
other officers; he continuously bothered her at work, even
when she was not under his direct command; he phoned
her at home and work for reasons unrelated to police
business; and he made negative comments to her regarding
her work and her marriage." Appellants' Br. at 29 (citations
omitted).
We are not persuaded that these alleged actions, even
when taken together, rose to the level of conduct affecting
Robinson's "compensation, terms, conditions, or privileges"
of employment. Formal reprimands that result in a notation
in an employee's personnel file could be sufficiently
concrete, but harsh words that lack real consequences are
not. See Meritor, 477 U.S. at 67.
We reach a different conclusion with respect to
Robinson's allegation that Dickerson blocked her transfer to
the detective bureau because she refused to accede to his
_________________________________________________________________
11. The fact that no adverse action was taken is of course relevant to the
question whether a threat or promise was made.
16
advances. The record before us would certainly permit the
conclusion that Robinson was denied a transfer to the
detective bureau (which would have been a promotion)
because she had performed unsatisfactorily in two
undercover assignments, because she was unable to accept
criticism or take direction, or for other valid work-related
reasons. However, we believe that the record would also
support a finding that Dickerson refused to recommend her
transfer because she rebuffed his advances. It is
undisputed that a supervisor's recommendation weighs
very heavily in determining who is transferred, so the jury
could conclude that Dickerson's refusal to recommend
Robinson cost her the transfer. Accordingly, the evidence
was sufficient to support a finding of quid pro quo
harassment within the meaning of 29 C.F.R. § 1604.11(a)(2).12
Robinson testified that Dickerson told her on several
occasions that he would recommend her for transfer to the
detective bureau (App. 111, 113-14, 121-22, 142, 160-61),
but that after a party at which Dickerson touched her leg
under the table and pulled her into a compromising
position for a photograph, he responded to her renewed
inquiry about the transfer by telling her that "he had talked
to the Chief and he had talked to other detectives, and they
had all said I had a bad attitude," implying that this was
the reason she had not been transferred. (App. 143) She
also testified that, when she spoke to Edwards shortly
thereafter, he confirmed that Dickerson had "been saying
bad things about [her] lately to Buford and [him]." (App.
_________________________________________________________________
12. Robinson has not called to our attention any admissible evidence
that Dickerson explicitly threatened her before or at the time he made a
sexual advance that her response would affect her "compensation, terms,
conditions, or privileges" of employment. See 29 C.F.R. § 1604.11(a)(1).
In light of our conclusion that the evidence is sufficient to show that
Dickerson in fact did use Robinson's response to his advances as a basis
for a decision affecting her compensation, etc. within the meaning of
subsection (2), we need not consider whether the evidence would support
a finding that Dickerson imposed such a condition "implicitly" before or
at the time he made the alleged advances within the meaning of
subsection (1). On remand, the district court should decide whether
Robinson can proceed to trial based only on the theory of quid pro quo
harassment set out in 29 C.F.R. § 1604.11(a)(2) or whether she can rely
on 29 C.F.R. § 1604.11(a)(1) as well.
17
145) When she asked Edwards how she should deal with
that and told him that "none of it [what Dickerson had been
saying] was true," he replied, "I know. I know Jim is like
that. . . . Jimmy thinks he's a lover." (App. 146) Moreover,
when Robinson asked Edwards why he thought Dickerson
was saying bad things about her, Edwards said that
"Dickerson would like to have nothing better than a 23-
year-old girl like you." (App. 146) Robinson testified that,
after Dickerson told her again in April 1993 that she would
be transferred, Edwards "told [her] that he [didn't] know
why Commander Dickerson said he was going to
recommend [her], because he [Dickerson] made sure that
[she] wasn't on that [March 1993 transfer] list." (App. 162)
We hold that this evidence is sufficient to entitle a
reasonable factfinder to conclude that Robinson was denied
a transfer to the detective bureau because she refused
Dickerson's advances. We believe that, in contrast to minor
slights like "negative comments," receiving or being denied
a desired promotion is sufficiently serious and tangible to
constitute a change in the employee's "terms, conditions, or
privileges" of employment.13 If the jury finds that Robinson
was subjected to unwelcome sexual advances and that her
response to those advances was the basis for Dickerson's
refusal to recommend her for such a transfer, Robinson will
have proved that the City, through Dickerson,
discriminated against her because of her sex with respect
to the "compensation, terms, conditions, or privileges" of
her employment. 42 U.S.C. § 2000e-2(a)(1). Accordingly, we
reverse the district court's grant of judgment as a matter of
law to the City on Robinson's claim under Title VII for quid
pro quo sexual harassment.14
_________________________________________________________________
13. Here, although the transfer at issue would have been a promotion,
Robinson has not directed us to any specific evidence that the transfer
would have increased her compensation. Paragraph 43 of her complaint
does allege that a "transfer to the position of detective from the position
of patrolman . . . is a promotion and carries with it an increase in
annual compensation . . . ." (App. 27) Moreover, there appears to have
been a stipulation between the parties with respect to the difference in
pay between the detective level and the patrolman level. (App. 1310)
14. The jury returned a verdict for Dickerson on Robinson's claim under
§ 1983 against Dickerson for discriminating against her because of her
18
V.
Title VII and § 1983 Retaliation Claims Against the City,
Buford, and Edwards
Robinson contends that, after she filed her complaint
with the EEOC, she suffered reprisals at work. Section
704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it "an
unlawful employment practice" for "an employer" to
"discriminate" against an employee "because he [the
employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under [Title VII]." Robinson sued the City for
retaliation under the above-quoted provision of Title VII.
She also sued Buford and Edwards for retaliation under
§ 1983, apparently for violating her right, secured by the
same provision of Title VII, to protest discrimination.
In Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995),
we set forth the elements of a retaliation claim:
To establish discriminatory retaliation under Title VII,
a plaintiff must demonstrate that: (1) she engaged in
_________________________________________________________________
sex, in violation of the Equal Protection Clause. Since this claim was
allowed to go the jury after the court granted judgment as a matter of
law on Robinson's quid pro quo and retaliation theories, it would appear
that this claim was founded upon a hostile work environment theory. It
is unclear from the record before us whether this claim was also founded
upon a theory of quid pro quo harassment. If it was, our discussion in
this section applies equally to it, and it should be tried on remand along
with Robinson's Title VII quid pro quo claim against the City. (Unlike
with respect to the § 1983 claims against Buford, Edwards, and the City,
there is no legal issue regarding Dickerson's personal liability under
§ 1983.) We of course recognize that federal pleading rules are liberal,
but it could be unfair for Robinson to assert a claim on remand that she
did not make clear in the earlier proceedings in the district court.
Compare Appellants' Br. at 2, 4, 28 (referring to a claim under § 1983 for
quid pro quo harassment, though apparently only against the City) with
Appellees' Br. at 22 (noting Robinson's references to a purported § 1983
claim for quid pro quo harassment, but stating that the district court
"analyzed Robinson's quid pro quo claim under a strict Title VII
analysis"). We leave it to the district court to determine whether on
remand Robinson should be permitted to pursue a claim against
Dickerson under § 1983 on a quid pro quo theory.
19
activity protected by Title VII; (2) the employer took an
adverse employment action against her; and (3) there
was a causal connection between her participation in
the protected activity and the adverse employment
action.
Id. at 386 (citations omitted). See also Woodson v. Scott
Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); Kachmar v.
SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir.
1997); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1085 (3d Cir. 1996); Jalil v. Avdel Corp., 873 F.2d 701, 708
(3d Cir. 1989) (same); Delli Santi v. CNA Ins. Co., 88 F.3d
192, 198 (3d Cir. 1996) (same, under New Jersey law).
It is undisputed that Robinson's EEOC complaint
constitutes protected activity under Title VII. The district
court granted judgment as a matter of law to defendants on
Robinson's retaliation claims on the ground that she had
not presented evidence that the alleged reprisals were the
result of the protected activity. (App. 1029) On appeal,
Robinson argues that the court erred in evaluating her
evidence of retaliation. She submits that she was subjected
to the following acts of reprisal due to the filing of her
EEOC complaint:
restricted job duties, reassignment and subsequent
failure to transfer her out of an assignment in which
she was under the direct command of the alleged
harasser, and the issuance of several unsubstantiated
oral reprimands against her. Additionally, she testified
that after refuting one of his advances, Dickerson
sometimes would not talk to her, or would make
unnecessary derogatory comments to her. . . [Moreover,
she testified that] "Chief Edwards told me that he
didn't know why Commander Dickerson said he was
going to recommend me, because he made sure that I
wasn't on that [transfer] list."
Appellants' Br. at 27 (citations omitted).
A. In our view, much of the allegedly retaliatory conduct
of which Robinson complains, even if her evidence is
believed, does not give rise to a claim for retaliation. The
alleged "unsubstantiated oral reprimands" and
"unnecessary derogatory comments" suffered by Robinson
20
following her complaint do not rise to the level of what our
cases have described as "adverse employment action."
Title VII declares that "[i]t shall be an unlawful
employment practice for an employer to discriminate"
against an employee "because he has made a charge" of
discrimination. 42 U.S.C. § 2000e-3(a). Title 42 U.S.C.
§ 2000e-2(a) makes it an "unlawful employment practice"
to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
. . . sex . . . or to limit, segregate, or classify his
employees . . . in any way which would deprive or tend
to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee,
because of such individual's . . . sex . . . .
Retaliatory conduct other than discharge or refusal to
rehire is thus proscribed by Title VII only if it alters the
employee's "compensation, terms, conditions, or privileges
of employment," deprives him or her of "employment
opportunities," or "adversely affect[s] his [or her] status as
an employee." It follows that "not everything that makes an
employee unhappy" qualifies as retaliation, for"[o]therwise,
minor and even trivial employment actions that ``an
irritable, chip-on-the-shoulder employee did not like would
form the basis of a discrimination suit.' " Smart v. Ball State
University, 89 F.3d 437, 441 (7th Cir. 1996) (quoting
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th
Cir. 1996)).
Courts have operationalized the principle that retaliatory
conduct must be serious and tangible enough to alter an
employee's compensation, terms, conditions, or privileges of
employment into the doctrinal requirement that the alleged
retaliation constitute "adverse employment action." See
Williams, 85 F.3d at 273 (interpreting parallel provisions of
the Age Discrimination in Employment Act to require
"materially adverse action"); McDonnell v. Cisneros, 84 F.3d
256, 258 (7th Cir. 1996) ("The language of ``materially
adverse employment action' that some courts employ in
retaliation cases is a paraphrase of Title VII's basic
21
prohibition against employment discrimination, found in 42
U.S.C. §§ 2000e-2(a)(1) and (2)."). Accordingly, just as we
concluded that a quid pro quo plaintiff must show a "quo"
that is serious enough to alter his or her "compensation,
terms, conditions, or privileges" of employment, we hold
that the "adverse employment action" element of a
retaliation plaintiff's prima facie case incorporates the
same requirement that the retaliatory conduct rise to the
level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2).15
_________________________________________________________________
15. In Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995), the plaintiff,
a former employee of Upsala, contended that Upsala retaliated against
her by requiring that she obtain prior approval before going onto
Upsala's campus. We observed that 42 U.S.C. § 2000e-3(a) "interdicts ``an
unlawful employment practice' rather than conduct in general which the
former employee finds objectionable," id. at 388, and rejected the
plaintiff's argument on the ground that the allegedly retaliatory action
"had no impact on any employment relationship that Nelson had, or
might have in the future." Id. at 389. In Charlton v. Paramus Bd. of
Education, 25 F.3d 194 (3d Cir. 1994), we held that a former employee
could state a claim for retaliation arising out of post-employment
conduct, so long as the retaliation affected the plaintiff's future
employment opportunities. Id. at 200-01. We noted that retaliation
claims have been permitted "where the retaliation results in discharge
from a later job, a refusal to hire the plaintiff, or other professional or
occupational harm." Id. at 200.
Although the instant case does not require us to resolve the issue, it
appears from our decisions in Nelson and Charlton that a plaintiff who
claims that the alleged retaliation prejudiced his or her ability to obtain
or keep future employment would meet the standard we announce today
by showing that the retaliatory conduct was related to his or her future
employment and was serious enough to materially alter his or her future
employment prospects or conditions. See, e.g., Smith v. St. Louis
University, 109 F.3d 1261, 1266 (8th Cir. 1997) (negative references
causing potential employers to decline to hire plaintiff constitute
actionable retaliation); Ruedlinger v. Jarrett , 106 F.3d 212, 214 (7th Cir.
1997) (providing information to subsequent employer that caused it to
fire plaintiff constitutes retaliation that "impinge[s] on her ``future
employment prospects or otherwise ha[s] a nexus to employment' ")
(quoting Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir.
1996)); Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C.
Cir. 1991) (under parallel provision of the ADEA, holding that
defendant's retaliatory cancellation of a seminar planned in honor of
plaintiff gave rise to retaliation claim because the cancellation humiliated
22
We hold that Robinson's allegations that she was
subjected to "unsubstantiated oral reprimands" and
"unnecessary derogatory comments" following her
complaint do not rise to the level of the "adverse
employment action" required for a retaliation claim. See
Wanamaker v. Columbia Rope Co., 108 F.3d 462, 465-66
(2d Cir. 1997) ("barring a terminated employee from using
an office and phone to conduct a job hunt presents only a
minor, ministerial stumbling block toward securing future
employment" and thus did not constitute adverse
employment action under parallel provisions of the ADEA);
Veprinsky, 87 F.3d at 895 (former employer's subsidizing of
attorney for an individual sued by plaintiff was "entirely
unrelated to employment" and resulted in "too intangible"
adversity to plaintiff and thus could not give rise to a
retaliation claim); Williams, 85 F.3d at 274 (lateral transfer
involving small indirect effect on employee's earnings from
commissions "cannot rise to the level of a materially
adverse employment action"). See also McDonnell, 84 F.3d
at 258 (implying in dicta that "anger, irritation, dirty looks,
even the silent treatment can cause distress" but do not
constitute materially adverse employment action); Harley v.
McCoach, 928 F. Supp. 533, 541-42 (E.D. Pa. 1996).
B. In addition, much of what Robinson characterizes as
retaliation for her EEOC complaint is in fact alleged to have
occurred before she filed the complaint. What Dickerson
may have done after Robinson "refut[ed] one of his
advances" might constitute evidence of a hostile work
environment or of quid pro quo harassment, but since it
happened before Robinson filed her complaint, Robinson
cannot establish a causal connection between her
complaint and the conduct. What remains of Robinson's
evidence is essentially as follows: (1) that a co-worker
named Mona Wallace retaliated against Robinson by
restricting her computer access during the summer of 1994
_________________________________________________________________
plaintiff in the eyes of his peers "and made it more difficult for him to
procure future employment"); Sherman v. Burke Contracting, Inc., 891
F.2d 1527, 1532 (11th Cir. 1990) (retaliation claim proper where
plaintiff's former employer persuaded plaintiff's new employer to fire
him).
23
to weekdays, in contrast to Robinson's previously
unrestricted access; and (2) that the "ten-car memo" written
by Edwards and sent to Bochter, Dickerson, and Buford
was a retaliatory attempt to force Robinson to return to
working under the direct supervision of Dickerson, her
alleged harasser. Assuming arguendo that Wallace's
conduct and Edwards's memo constitute "adverse
employment action," we do not believe that Robinson
demonstrated the required "causal link" between her
complaint and either Wallace's conduct or Edwards's
memo. Aman, 88 F.3d at 198.
Robinson testified that one Saturday during the summer
of 1994, she attempted to work on her computer but was
unable to do so because her authorization had been
restricted to weekdays. (App. 240) Before that time,
Robinson had had unrestricted computer access. (App. 240)
Wallace, who was a co-worker of Robinson's, is not
implicated in any way in any of the alleged sexual
harassment. Robinson points to no evidence that anyone
other than Wallace was involved in the decision to restrict
her computer access, and she offers no evidence of any sort
to show that Wallace took this action in retaliation for
Robinson's complaint. On the contrary, Robinson relies
merely on a post hoc, ergo propter hoc inference from the
fact that the restriction was imposed after Robinsonfiled
her complaint.
Our cases are seemingly split on the question whether
the timing of the allegedly retaliatory conduct can, by itself,
support a finding of causation. Compare Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989) (plaintiff
"demonstrated the causal link . . . by the circumstance that
the discharge followed rapidly, only two days later, upon
Avdel's receipt of notice of [his] EEOC claim") with Delli
Santi v. CNA Ins. Co., 88 F.3d 192, 199 n.10 (3d Cir. 1996)
("timing alone will not suffice to prove retaliatory motive").
In Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.
1997), relying on Jalil, we stated in dicta that "temporal
proximity between the protected activity and the
termination is sufficient to establish a causal link." On the
other hand, in Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d
Cir. 1991), we characterized our statement in Jalil that the
24
"timing of the discharge in relation to Jalil's EEOC
complaint may suggest discriminatory motives" as the
holding of that case, and stated that in Jalil "we stopped
short of creating an inference based upon timing alone." Id.
at 501 (emphasis added).
We believe that, if Jalil is to be interpreted as holding
that timing alone can be sufficient, that holding must be
confined to the unusually suggestive facts of Jalil. Thus,
even if timing alone can prove causation where the
discharge follows only two days after the complaint, the
mere fact that adverse employment action occurs after a
complaint will ordinarily be insufficient to satisfy the
plaintiff's burden of demonstrating a causal link between
the two events. See Quiroga, 934 F.2d at 501 (holding that,
"[a]s a matter of fact," the timing of Quiroga's alleged
constructive discharge was not independently sufficient to
prove it was caused by his complaint). There is no evidence
that Wallace's restriction of Robinson's computer access
followed immediately upon her complaint, so this is thus
not one of the extraordinary cases where the plaintiff can
demonstrate causation simply by pointing to the timing of
the allegedly retaliatory action. Accordingly, we reject
Robinson's claim that Wallace's action constituted unlawful
retaliation.16
_________________________________________________________________
16. Because Robinson has failed to present evidence of a causal
connection between her complaint and Wallace's conduct, Robinson has
not made out a prima facie case that Wallace's conduct constituted
retaliation. See, e.g., Aman, 85 F.3d at 1085. Defendants therefore were
not required to proffer a legitimate, non-discriminatory reason for
Wallace's conduct. However, they did so, presenting evidence that
Wallace restricted Robinson's access because Robinson had been
committing security breaches (for example, by bringing files home) and
that Wallace took this action entirely on her own. (App. 562-66, 579) If
defendants were obligated to proffer such an explanation, Robinson
would then have the burden of presenting evidence from which a
reasonable jury could conclude either that "the articulated reason is a
pretext for the retaliation or that a discriminatory reason more likely
motivated the employer." Delli Santi, 88 F.3d at 199. Robinson has not
pointed to any implausibilities, inconsistencies, contradictions,
incoherencies, or the like in Wallace's testimony, see Sheridan, 100 F.3d
at 1072, and has not even attempted to explain why the jury should
25
A similar analysis applies to the "ten-car memo" written
by Edwards in June 1994. Before that time, Robinson had
been assigned to the "ten-car" (a drug suppression vehicle)
but had been detailed to criminal intelligence where she
worked under Bochter. Dickerson was in charge of the ten-
car but had no supervisory authority over the criminal
intelligence unit. The ten-car memo states that "due to the
increased activity in the downtown area and with the
ending of the school year, the need for the extra assistance
that the ten car provides has increased. Due to these facts,
effective immediately, all personnel assigned to a ten car is
[sic] to be immediately informed that they will ride the
vehicle that they are assigned to." (App. 237)
Robinson seeks to portray this memo as a pretextual
attempt to force her to work under Dickerson after having
filed a complaint against him. However, it is undisputed
that the memo was not applied to Robinson; she remained
in the criminal intelligence unit from June 1994 (when the
memo was circulated) until October 1994, when she
stopped reporting for work. (App. 239-40, 249-50) Again,
Robinson attempts to link the ten-car memo to her
complaint simply by pointing to the temporal sequence of
the two events, but in light of the circumstances noted
above, this is insufficient. There is consequently no basis
for a finding that the ten-car memo constituted retaliation
against Robinson for her complaint of discrimination.
Robinson's final argument is that the jury would have
been entitled to return a verdict for her on her retaliation
claim if it had agreed that she was subjected to a hostile
work environment. She relies on our statement in Aman
that "an atmosphere of condoned sexual harassment in the
workplace increases the likelihood of retaliation for
complaints in individual cases," 85 F.3d at 1086, but that
_________________________________________________________________
disbelieve Wallace. Nor does the record itself suggest any such reason.
Rather than showing that Wallace was in league with Dickerson or
management generally, the record in fact reveals that Wallace
accompanied Robinson to the EEOC as "moral support" when Robinson
filed her complaint. (App. 560) We therefore hold, in the alternative, that
Robinson failed to present evidence undermining defendants' proffered
legitimate, non-discriminatory explanation for the challenged conduct.
26
statement is merely an empirical prediction; it is not a legal
theory that obviates the presentation of actual evidence of
retaliation. In Hawkins v. Hennepin Technical Center, 900
F.2d 153, 156 (8th Cir. 1990), the source of the cited
statement from Aman, the court held that the plaintiff
should have been allowed to present evidence of the
defendant's prior acts of sexual harassment, even if those
acts were not independently actionable, in order to cast
doubt upon the credibility of the defendant's proffered
legitimate, non-discriminatory explanation for the allegedly
retaliatory conduct. Id. at 155-56. In Hawkins, the plaintiff
had enough evidence of retaliation to get to the jury even
without the evidence of "condoned sexual harassment," so
the court's decision cannot be read as upholding the
argument that Robinson urges upon us here.17
_________________________________________________________________
17. In Glass v. Philadelphia Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994),
we quoted the Eighth Circuit's statement in Hawkins with approval in
support of the proposition that evidence that Glass had been subjected
to racial harassment during a time period for which he received an
unfavorable performance rating was relevant to show that that rating
was of questionable validity and thus that the employer's reliance on
that rating in denying Glass certain promotions was pretextual.
Therefore, like Hawkins itself, Glass does not support the view that
evidence that the employer condoned sexual harassment suffices to
prove the element of the employee's prima facie case requiring a causal
link between his or her complaint and a subsequent adverse employment
action.
In Woodson, we stated that evidence that the employer condoned a
harasser's conduct can contribute to an inference that subsequent
adverse employment action taken by the harasser against the plaintiff
was causally linked to the plaintiff's complaint about the harassment.
109 F.3d at 922. This observation rests upon the recognition that, if the
harasser got away with the harassment, it is more likely that he or she
will believe that retaliation will be safe as well, and conversely, if the
employer took prompt and adequate action against the harasser, the
harasser will be less confident of his or her ability to engage in
retaliation with impunity. In this case, however, Robinson does not
contend that Dickerson -- the alleged harasser-- took any retaliatory
action against her.
In any event, we made it clear in Woodson that this sort of evidence
was not independently sufficient to support an inference of causation.
See id. at 921. Whereas Woodson presented other extensive evidence,
Robinson seeks to rely solely on evidence that Dickerson subjected her
27
In light of the foregoing, we affirm the district court's
grant of judgment as a matter of law to defendants on
Robinson's Title VII and § 1983 retaliation claims.18
VI.
Jury Instruction on Employer Liability
The district court denied the City's motion for judgment
as a matter of law as to Robinson's claim under Title VII for
a hostile work environment, and the jury returned a verdict
for the City. Robinson contends that this verdict must be
upset because the court erred in its instruction to the jury
on the issue of employer respondeat superior liability under
Title VII for hostile environment sexual harassment.19 As we
_________________________________________________________________
to a hostile work environment and that the City failed to take prompt
and adequate action to remedy the harassment. If we were to uphold
Robinson's argument, every employee who succeeds on a hostile
environment claim would be able to prove a causal link between his or
her complaint of harassment and any subsequent adverse employment
action. We do not believe that actual proof of retaliatory motive can be
dispensed with so easily.
18. In addition to the grounds described in the text, which apply equally
to Robinson's Title VII retaliation claim and her§ 1983 retaliation claim,
we hold that judgment as a matter of law was properly granted in favor
of Edwards and Buford on Robinson's § 1983 retaliation claim on the
ground that neither Edwards nor Buford was personally involved in any
retaliation. See Part III, supra. We also affirm the grant of judgment as
a matter of law to the City on the § 1983 retaliation claim on the
additional ground that there was no evidence of a municipal policy or
custom encouraging or permitting retaliation. See Part III.C, supra.
19. In order to prevail on a claim under Title VII for a hostile work
environment based on sex, an employee must prove that: "(1) he or she
suffered intentional discrimination because of his or her sex; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that position;
and (5) respondeat superior liability existed." Knabe v. The Boury Corp.,
___ F.3d ____, ____, 1997 WL 282905, *3 (3d Cir.)(citing Andrews, 895
F.2d at 1482). It is undisputed on appeal that Robinson presented
sufficient evidence of all five elements to create a jury question.
28
noted in Bouton v. BMW of N. Am., Inc., 29 F.3d 103 (3d
Cir. 1994), the Supreme Court "has instructed courts to
use agency principles when deciding employer liability for
sexually hostile work environments." Id. at 106 (citing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986)).
We explained that:
The Restatement (Second) of Agency § 219 provides
three potential bases for holding employers liable for
sexual harassment perpetrated by their employees.
Section 219(1) holds employers responsible for torts
committed by their employees within the scope of their
employment. . . . [In addition,] [u]nder§ 219(2)(b),
masters are liable for their own negligence or
recklessness; in a harassment case, this is typically
negligent failure to discipline or fire, or failure to take
remedial action upon notice of harassment. Finally,
under § 219(2)(d), if the servant relied upon apparent
authority or was aided by the agency relationship, the
master is required to answer.
Id. In the instant case, Robinson contended that the City
should be held liable for Dickerson's alleged harassment on
the theory that the City had notice of the harassment yet
failed to take remedial action to put a stop to it. See Knabe
v. The Boury Corp., ___ F.3d ___, ___, 1997 WL 282905, *4
(3d Cir.) (same).
The court charged the jury as follows:
To prove the fifth element [respondeat superior liability
on the part of the City], wife-plaintiff must prove that
the City of Pittsburgh was negligent insofar as its
procedure for handling sexual harassment complaints
was not effective. It is important for you, the jury, to
understand that the City of Pittsburgh may only be
held liable for the existence of a sexually hostile
working environment that results from its own
negligence. The City may not be held liable simply
because one of its employees engaged in sexual
harassment.
Thus, if the City of Pittsburgh had an effective
procedure for handling sexual harassment complaints
at the time of the alleged incidents, the City was not
29
negligent and it cannot be held liable for the improper
conduct of its employees.
In order to determine whether the City of Pittsburgh
was negligent in this case, you must decide whether its
sexual harassment procedure was effective. A sexual
harassment procedure is effective if it is both known to
the victim of sexual harassment and its [sic] use of the
procedure timely stops the harassment.
(App. 1331-32). Robinson timely objected to this charge
(App. 1310-11, 1314-15), arguing that "I think we've shown
evidence where there was not an effective procedure.. . .
[U]nder the facts of this case you can't presume there was
an effective procedure, because the procedure required
Chief Edwards to take action, and he didn't." The court
responded that it was not, in fact, "presuming" that the
City had an effective anti-harassment procedure, and stated
that "[i]t's the jury's job to decide whether it was effective or
not." (App. 1311) We exercise plenary review over the jury
instructions in order to determine whether, read as a
whole, they stated the correct legal standard. Miller v.
CIGNA Corp., 47 F.3d 586, 591 (3d Cir. 1995) (en banc).
In Bouton, the case upon which the district court relied
in its jury charge, we held that "under negligence
principles, prompt and effective action by the employer will
relieve it of liability." Bouton, 29 F.3d at 107 (emphasis
added). Robinson argues that the charge based on Bouton
was inappropriate because the complaint in that case did
end the harassment, while her complaint did not. According
to Robinson, the court should have based its jury
instruction on Andrews, a case where the complaint did not
put a stop to the harassment. Robinson's argument is
nothing more than a contention that the City's action in
this case was not "effective." But whether Robinson's
complaint put a stop to the harassment -- and whether any
harassment occurred in the first place -- were factual
issues committed to the jury. The basic problem with
Robinson's argument is that it challenges the jury's verdict,
not the court's charge.
Robinson contends that, even if the City put an end to
the harassment by transferring Dickerson following her
30
May 1994 complaint, the City should have taken such
action in 1992 when she first spoke to Edwards about
Dickerson's "hitting on her." But Robinson argued at trial
that her 1992 conversation with Edwards constituted an
attempt to avail herself of the City's anti-harassment
procedure, and that the City failed to respond adequately to
her complaint. (App. 1405) If the jury had believed that the
1992 conversation had taken place and that Robinson had
made it sufficiently clear to Edwards that she was
complaining about conduct that she perceived as sexual
harassment, the jury could have held the City liable. That
it did not do so is not a basis to attack the charge.
Robinson's argument, both as quoted above in her
objection to the charge in the district court and on appeal,
runs more like an argument in favor of judgment as a
matter of law that the City did not take adequate remedial
action once it learned of the harassment than a challenge
to a jury instruction. Robinson did not move for such a
judgment, however, and it is plain that no such judgment
would have been warranted in view of the evidentiary
disputes regarding whether the harassment occurred and
when the City found out about it. As the district court put
it, "it's the jury's job to decide whether [the City's anti-
harassment procedure] was effective or not." We reject
Robinson's argument that the Bouton charge was
inappropriate on the facts of her case, because it was for
the jury in its verdict, not the court in its charge, to decide
what the facts of this case were.20
_________________________________________________________________
20. After the trial in this case, we decided Knabe v. The Boury Corp., ___
F.3d ____, 1997 Wl 282905 (3d Cir.). As noted above, in Bouton we
articulated the standard as whether the employer's remedial action was
"effective." See 29 F.3d at 107. In Andrews, we phrased the standard
somewhat differently, stating that the employer will be liable if its
remedial action was not "adequate." See 895 F.2d at 1486. If there was
any conflict between the "adequacy" standard expressed in Andrews and
the "effectiveness" standard set forth in Bouton, Knabe has resolved it. In
Knabe, we rejected the plaintiff's argument that an employer is liable
unless it took remedial action that was actually "effective" to put a stop
to the harassment in the particular case at hand. We held instead that
a remedial action is "adequate" if it was "reasonably calculated to
prevent further harassment," whether or not it actually succeeded in
doing so. Id. at __, *5 (citations omitted). See also id. at __, *4 n.8.
Therefore, the charge in this case arguably misled the jury into believing
that the City's response had to be actually effective. Of course, in view
of the jury's verdict for the City, no prejudice flowed from this possible
error.
31
VII.
After the district court granted defendants' motion for
judgment as a matter of law on Robinson's quid pro quo
harassment and retaliation claims, defendants' counsel
asked the court to remove from the record certain exhibits
that "were offered with relation to those claims." (App.
1307). The court then went through the exhibits in
question with counsel and excluded all but two of them.
(App. 1308-13) Later, in charging the jury, the court listed
the claims that it had "disposed of" and told the jury that
"these claims are of no concern to you. The evidence you
heard concerning these claims is no longer relevant and
should not be considered by you." (App. 1326) On appeal,
Robinson argues that these evidentiary rulings and this
statement were erroneous because evidence of quid pro quo
harassment and retaliation, even if it does not concern
conduct that is serious enough to be independently
actionable on a quid pro quo or a retaliation theory, may
nevertheless be relevant to show a hostile work
environment. These errors, she submits, require reversal of
the jury's verdict in favor of the City on her Title VII hostile
environment claim.
We need not consider this argument, because we do not
believe that Robinson raised it in the district court. Fed. R.
Civ. P. 46 requires "that a party, at the time the ruling or
order of the court is made or sought, make[ ] known to the
court the action which the party desires the court to take
or the party's objection to the action of the court and the
grounds therefor." We conclude that, while Robinson may
have made a timely objection to the evidentiary exclusions
that she contests, she at no time made known to the
district court the ground that she now presses in this
court.
As noted, the court analyzed each exhibit that defendants
sought to exclude. For most of the exhibits mentioned
during that process, plaintiffs' counsel voiced no objection,
and neither of the two objections that he did raise related
to the argument described above upon which Robinson now
relies. First, plaintiffs' counsel objected to the exclusion of
exhibit 57-X, arguing that it was relevant to undermine the
credibility of a witness named Gail Payne by showing "her
32
motive in giving testimony the way she did and what she
said." (App. 1308) The court disagreed, and removed the
exhibit from the record. Next, counsel argued that exhibit
78 was relevant to show that the City's response to
Robinson's complaint of harassment was ineffective. (App.
1310) The court disagreed, stating that the exhibit only
"has to do with retaliation." (App. 1311) Robinson does not
renew either of these objections on appeal. After the court
and counsel had gone through all of the exhibits at issue,
plaintiffs' counsel stated that "[t]o make the record clear,
Your Honor, I would just like to for the record, to formally
object to the Court's ruling based on the Bouton case and
the evidentiary rulings you just made." (App. 1315) Counsel
offered no further explanation of the grounds for this
objection.
Subsequently, in charging the jury, the court made the
statement quoted above that Robinson now challenges.
After completing the jury charge, the court told counsel at
sidebar that "[n]ow is your opportunity to put exceptions to
the charge on record." (App. 1348) Plaintiffs' counsel did
not mention the challenged statement, and did not
otherwise make known the argument that Robinson now
makes on appeal.
We therefore conclude that plaintiffs' counsel never gave
the district court any reason to believe that he was making
the argument that evidence of quid pro quo harassment
and retaliation, even if not actionable on those theories,
was nevertheless relevant to show a hostile work
environment. Because Robinson did not raise that
argument in the district court, we decline to consider it on
appeal.21
_________________________________________________________________
21. Robinson argues that the court erred in refusing to allow her to
present evidence that the City transferred officers to the detective bureau
on the basis of nepotism and favoritism, in violation of its written
policies. We find no error in the district court's ruling that the proffered
evidence could not give rise to a reasonable inference of discrimination
because of sex. Finally, Robinson challenges the court's refusal to admit
the report prepared by the City's Office of Professional Responsibility
that found that Dickerson had created an "uncomfortable" work
environment for another woman. The court allowed Robinson to elicit the
33
VIII.
For the reasons stated in this opinion, we affirm the
district court's grant of defendants' motion for judgment as
a matter of law with respect to Robinson's claims under
§ 1983 against Buford, Edwards, and the City for sex
discrimination and retaliation and Robinson's claim under
Title VII against the City for retaliation. We reverse the
grant of judgment as a matter of law with respect to
Robinson's claim under Title VII for quid pro quo sexual
harassment against the City and remand for trial of that
claim. On remand, the district court should ascertain
whether Robinson seeks to pursue a claim under § 1983 for
quid pro quo harassment against Dickerson, and if so,
whether she should be permitted to do so in light of the
prior proceedings in this case. See n.14, supra. In all other
respects, we affirm the district court's rulings and its entry
of judgment upon the jury's verdict.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
report's conclusions as admissions by the City, but excluded the report
itself as irrelevant. Robinson contends that the report shows notice to
the City of Dickerson's alleged harassment of her. We find no error here
as well. The conduct on the part of Dickerson discussed in the report is
not his alleged harassment of Robinson, so the report in no way put the
City on notice that Dickerson was harassing Robinson.
34