Suders v. Easton, 01-3512.

• Citation: 325 F.3d 432
• Decision Date: 16 April 2003
• Docket Number: No. 01-3512.,01-3512.
• Parties: Nancy Drew SUDERS, Appellant, v. Eric D. EASTON, William D. Baker, Eric B. Prendergast, Virginia Smith Elliott, and the Pennsylvania State Police.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

325 F.3d 432

Nancy Drew SUDERS, Appellant, v. Eric D. EASTON, William D. Baker, Eric B. Prendergast, Virginia Smith Elliott, and the Pennsylvania State Police.

No. 01-3512.

United States Court of Appeals, Third Circuit.

Argued on April 11, 2002.

Filed April 16, 2003.

COPYRIGHT MATERIAL OMITTED

Don Bailey (argued), Harrisburg, PA, for Appellant.

D. Michael Fisher, Attorney General, Sarah C. Yerger (argued), Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of the Attorney General, Harrisburg, PA, for Appellees.

Before McKEE and FUENTES, Circuit Judges, and POGUE,^* Judge.

OPINION OF THE COURT

FUENTES, Circuit Judge.

In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (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."¹ Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. 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, 118 S.Ct. 2257; see also Faragher, 524 U.S. at 808, 118 S.Ct. 2275. 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, 118 S.Ct. 2257; see also Faragher, 524 U.S. at 790, 118 S.Ct. 2275. 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, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275.

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.

I.

A. Background²

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...