Bonenberger v. Plymouth Tp.

• Citation: 132 F.3d 20
• Decision Date: 17 December 1997
• Docket Number: No. 97-1047,97-1047
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1242, 72 Empl. Prac. Dec. P 45,083 Cheryl BONENBERGER, Appellant, v. PLYMOUTH TOWNSHIP; Joseph La Penta, Sergeant, Plymouth Township Police Department.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 20

132 F.3d 20

77 Fair Empl.Prac.Cas. (BNA) 1242,

72 Empl. Prac. Dec. P 45,083

Cheryl BONENBERGER, Appellant, v. PLYMOUTH TOWNSHIP; Joseph La Penta, Sergeant, Plymouth Township Police Department.

No. 97-1047.

United States Court of Appeals Third Circuit.

Argued Sept. 25, 1997.

Decided Dec. 17, 1997.

William L. McLaughlin, Jr. (Argued), Paoli, PA, for Appellant.

George H. Knoell, III (Argued), Kane, Pugh, Knoell & Driscoll, Norristown, PA, for Plymouth Township.

L. Rostaing Tharaud (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, for Joseph La Penta.

Before: COWEN, ROTH, and LEWIS, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Cheryl Bonenberger brought this sexual harassment suit against her former employer, Plymouth Township, located in Pennsylvania; the Plymouth Township Police Department; and against Sergeant La Penta, a police department employee. She has asserted claims under both Title VII and 42 U.S.C. § 1983. This appeal requires us to decide whether a police officer acts under "color of state law" for purposes of 42 U.S.C. § 1983 when he sexually harasses a co-employee whose work shift he supervises, even if he is not her official supervisor and lacks authority to hire or fire her. We must also apply our precedent in Title VII sexual harassment cases, reaffirming the established distinction between quid pro quo and hostile work environment claims. For the reasons set forth below, we will reverse in part and affirm in part the district court's order of summary judgment dismissing Bonenberger's allegations.

I.

Bonenberger worked as a dispatcher for the Plymouth Township Police Department from about February 1993 to April 11, 1994. She alleges that during her employment, Sergeant Joseph La Penta regularly accosted her at work with obscene remarks and unwelcome sexual advances. She also claims that La Penta frequently fondled her breasts or pinched her buttocks while she attempted to complete work assignments. She contends that this ongoing harassment occurred in the presence of police employees and that management-level personnel became aware of LaPenta's conduct in January 1994, but for nearly three months did nothing to curtail it. Bonenberger adds that although she consistently rejected La Penta's advances, the harassment persisted, driving her to resign her position as dispatcher on April 11, 1994.

The parties agree that although La Penta did not hire Bonenberger and was not her official supervisor, he supervised all of the dispatchers, including Bonenberger, when no higher-ranking officer was on duty. At such times he had sole control over Bonenberger's work environment, determining when she and the other dispatchers might take a break and which tasks they would perform. Bonenberger testified that on one such occasion, he grabbed her buttocks in the presence of three other law enforcement officials. The police department's own independent investigation confirms that this incident occurred.

The district court granted defendants summary judgment on Bonenberger's claims that (1) La Penta, individually and in his official capacity, deprived her of the right to equal protection in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment; (2) Plymouth Township Police Department's failure properly to control, discipline and train La Penta violated section 1983 and (3) Plymouth Township Police Department contravened Title VII by permitting La Penta's quid pro quo and hostile work environment sexual harassment. The district court also dismissed Bonenberger's state law claims of intentional infliction of emotional distress and battery against La Penta, and her claim against the police department under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (1991), declining to exercise supplemental jurisdiction over those claims pursuant to 28 U.S.C. § 1367. ¹ Reviewing the record de novo, we will reverse the district court's order of summary judgment on Bonenberger's section 1983 claim against La Penta and on her Title VII hostile work environment claim against the police department. We will affirm the order of summary judgment with respect to her section 1983 claim and her claim of quid pro quo harassment against the department.

II.

A.

We address first Appellant's section 1983 claim against Sergeant La Penta. ² A finding of liability under 42 U.S.C. § 1983 "requires that the defendant ... have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). See also Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993).

The district court correctly concluded that state action is a threshold issue in any section 1983 case. It erred, however, in holding that La Penta's harassment could not meet the color of law requirement solely because he "had no authority to hire, fire or make any employment decision regarding Bonenberger...." Bonenberger v. Plymouth Township, No. Civ. A. 96-403, 1996 WL 729034, at * 5 (E.D.Pa. Dec. 18, 1996). A state employee may, under certain circumstances, wield considerable control over a subordinate whose work he regularly supervises, even if he does not hire, fire, or issue regular evaluations of her work. See Poulsen v. City of North Tonawanda, 811 F.Supp. 884, 895 (W.D.N.Y.1993) (factual dispute about the defendant's actual authority precludes summary judgment on section 1983 sexual harassment claim where plaintiff alleged that defendant possessed unwritten authority to influence her work evaluations and assignments). There is simply no plausible justification for distinguishing between abuse of state authority by one who holds the formal title of supervisor, on the one hand, and abuse of state authority by one who bears no such title but whose regular duties nonetheless include a virtually identical supervisory role, on the other. ³

In so holding, we do not suggest that all acts of an on-duty state employee are state action for purposes of section 1983. Although "state employment is generally sufficient to render the defendant a state actor," West, 487 U.S. at 50, 108 S.Ct. at 2255 (citation omitted), not all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995) ("[A]n otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state."). In contrast, off-duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law. Rivera v. La Porte, 896 F.2d 691, 696 (2d Cir.1990) (finding state action existed because offender identified himself as peace officer, arrested plaintiff and used police car). Thus, the essence of section 1983's color of law requirement is that the alleged offender, in committing the act complained of, abused a power or position granted by the state.

In holding that Sergeant La Penta's conduct was not under color of law, the trial court relied heavily on Woodward v. Worland, 977 F.2d 1392 (10th Cir.1992) and a district court decision, Rouse v. City of Milwaukee, 921 F.Supp. 583 (E.D.Wis.1996). See Bonenberger, 1996 WL 729034, at * 3 & n. 2. These cases are inapposite. The Woodward court determined that the defendant police officers lacked authority over the plaintiffs, three dispatchers, only because the dispatchers worked for a private company rather than the police department itself. The Woodward court expressly "did not ... decide whether an outside third party or co-employee could ever be liable for sexual harassment under [section] 1983 and the Equal Protection Clause." Woodward, 977 F.2d at 1401. Moreover, the same court of appeals that decided Woodward later noted that "in some instances co-employees may exercise de facto control over sexual harassment victims such that they act under color of law." David v. City of Denver, 101 F.3d 1344, 1354 (10th Cir.1996) (section 1983 sexual harassment claim may not be dismissed for failure to state claim upon which relief may be granted merely because the defendants are non-supervisory co-workers).

We likewise find the district court decision in Rouse v. City of Milwaukee, 921 F.Supp. 583, 588 (E.D.Wis.1996), to be inapplicable to the facts of this case. The Rouse plaintiffs and the police officer they sued for harassment "held the same rank and [the harasser] had no authority to give them orders." Id. The plaintiffs in Rouse therefore could offer no evidence that the perpetrator acted under color of law when he harassed them on the job. Instead, they alleged only that the accused officer, whose official rank was the same as theirs, had seniority and was generally well-connected in the department. Id. Unlike La Penta, the defendant in Rouse did not supervise the plaintiffs' work, and his seniority afforded him no authority over his colleagues' assignments.

In fact, the circumstances in Rouse stand in stark contrast to Sergeant La Penta's direct power to give Bonenberger orders when supervising her work shift. It is undisputed that La Penta could alter her workload whenever he supervised her shift. Indeed, as the department's counsel conceded at oral argument, if Bonenberger failed to follow his orders, the police department would view that failure as insubordination for which La Penta properly could begin a disciplinary process that might result in her discharge. Under these circumstances La Penta's role within the departmental structure afforded him sufficient authority over...