435 F.3d 444 (3rd Cir. 2006), 04-4078, Jensen v. Potter

Docket Nº:04-4078.
Citation:435 F.3d 444
Party Name:Anna M. JENSEN, Appellant v. Jack E. POTTER, Postmaster General U.S. Postal Service.
Case Date:January 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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435 F.3d 444 (3rd Cir. 2006)

Anna M. JENSEN, Appellant


Jack E. POTTER, Postmaster General U.S. Postal Service.

No. 04-4078.

United States Court of Appeals, Third Circuit.

January 31, 2006.

Argued: September 29, 2005.


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KIMBERLY D. BORLAND, DAVID P. TOMASZEWSKI (Argued), Counsel for Appellant.

J. JUSTIN BLEWITT, JR. (Argued), Assistant United States Attorney, Counsel for Appellee.

Before: ALITO and AMBRO, Circuit Judges, and RESTANI, [*] Chief Judge, United States Court of International Trade.


ALITO, Circuit Judge.

Appellant Anna Jensen is a letter carrier with the Kingston, Pennsylvania branch of the United States Post Office. In this action against her employer, she brings claims for retaliation and sex discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The District Court granted the Postmaster General's motion for summary judgment as to both claims, and Jensen appealed.

We will reverse and remand. With respect to retaliation, the District Court incorrectly held that coworker harassment cannot violate 42 U.S.C. § 2000e-3(a). As to sex discrimination, the record contains evidence sufficient to support a finding that the alleged retaliatory harassment was also discrimination "because of . . . sex." See 42 U.S.C. § 2000e-2(a).


Both Jensen's claims arise from a series of events that began with an unwanted sexual proposition. While at work on Saturday morning, September 15, 2001, Jensen received a phone call from supervisor Carl Waters. Waters had the day off, and he asked if Jensen knew the way to his home. When Jensen said she didn't, he gave her directions. As he spoke, Waters struggled with the pronunciation of certain street names. He apologized to Jensen and attributed the slurred speech to an all-night drinking binge.

After completing the directions, Waters said: "Now Anna, I don't care what [obscenity] you go in and tell those guys in the office, get out of there right now [because] I want to make love to you all day long." App. 63. Jensen declined, but Waters persisted, asking her at least to join him for breakfast. Jensen again said no, and Waters responded: "Anna, you put me in a compromising position." App. 63. Jensen made it clear that her decision was final, and the conversation ended.

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The next day, Jensen phoned Kingston branch manager Chris Moss and reported the incident. A more detailed discussion occurred when Jensen returned to work on Tuesday the 18th. Waters continued to work at the Kingston branch for two more days, but Jensen and he did not interact. On Thursday the 20th, the Postal Service transferred Waters to the Ashley branch. An investigation followed, and in January 2002 Waters was fired.

Meanwhile, on September 26, 2001, supervisor Rick Honeychurch moved Jensen's workstation from Moss's office to a stand-up desk in an area of the Post Office called Unit 1. Jensen's stay in Moss's office had begun after an injury required the use of crutches and the elevation of Jensen's leg. Moss testified that he instructed Honeychurch to move Jensen for two reasons: her leg had healed and he had confidentiality concerns about the pending Waters investigation. For her part, Jensen heard third-hand that Moss feared being alone with her. Whatever the reason, Jensen's new desk was the former workspace of Carl Waters, and her reception in Unit 1 was not friendly.

Right away, letter carrier Joe Sickler began to pepper Jensen with insults. On September 26, he referred to Jensen as "the [obscenity] who got [Waters] in trouble." App. 65. He then remarked within Jensen's earshot that she would have to get off her "fat [obscenity]" once a new supervisor arrived. The next day, Jensen overheard Sickler discussing a proposed petition to bring Waters back. Sickler also stated that Waters should not have to apologize for anything. Some time later, Sickler crept up behind Jensen and clapped two objects together. Startled, Jensen cringed with fright. She then reported Sickler's behavior to Moss and asked to be removed from Unit 1. Moss said he would talk to Sickler, but he declined to move Jensen despite the availability of another workstation. When asked at his deposition to explain why he did not move Jensen, Moss answered: "Because I didn't." App. 195. Sickler's offensive comments continued at a pace of two to three times per week for about 19 months.

Besides Sickler, letter carrier Ed Jones, a friend to Jensen before she reported Waters, now threatened her by driving U-Carts toward her at a rapid pace. He also told Jensen that he disagreed with the decision to terminate Waters. Approximately one year after the Waters incident, unknown vandals twice scratched Jensen's car with a key, spit on the car, and spilled coffee on it. All the incidents occurred in the Post Office parking lot; before the Waters telephone call vandals had never victimized Jensen.

In addition to her initial request to leave Unit 1, Jensen repeatedly complained to Moss and Honeychurch about her coworkers' behavior. At some point during the relevant period—exactly when is unclear—Honeychurch claims to have confronted Sickler about his offensive comments. Conditions did not improve, however, until 19 months after Jensen's first complaint. At that time, Jensen complained to a new supervisor, Melissa White. White brought Jensen into Moss's office, and Jensen again detailed her treatment at the hands of coworkers. Moss, White, and union officials then confronted Sickler, and Jensen's troubles quickly abated.

During this 19-month period, Jensen suffered panic attacks, she used sick time because of stress, and her asthma caused trips to the emergency room. She attributes these problems to working conditions at the Post Office.

Based on these events, Jensen brought two claims: sex discrimination pursuant to 42 U.S.C. § 2000e-2(a), and retaliation under 42 U.S.C. § 2000e-3(a). The District

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Court granted the defendant's motion for summary judgment on both claims, and this appeal followed. Our review is plenary, and we view the facts in the light most favorable to Jensen. See United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 396 n.3 (3d Cir. 2003). If a reasonable jury could find for her, we must reverse. Neumeyer v. Beard, 421 F.3d 210, 213 (3d Cir. 2005).


Jensen claims that her employer is liable for her coworkers' actions under Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). That provision makes it an unlawful employment practice to "discriminate" against an employee "because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]."1 The parties dispute both the scope of this prohibition and its application to this case. As a result, we must first clarify § 2000e-3(a)'s meaning and then apply those principles to the record before us.


The threshold question is whether a retaliation claim predicated upon a hostile work environment is cognizable under 42 U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn't, and our sister circuits are split. A majority has held that the statute prohibits severe or pervasive retaliatory harassment. See Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir. 2005); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001); Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir. 2000); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir. 1996); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791-92 & n.8 (6th Cir. 2000) (holding that retaliatory harassment by a supervisor is actionable but "tak[ing] no position on whether an employer can be liable for coworkers' retaliatory harassment"). The Fifth and Eighth Circuits, however, limit § 2000e-3(a) to "ultimate employment decisions," and thus do not view harassment to be within the statute's reach. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).

While our Court has never addressed the precise question, the logic of our decision in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), points toward the majority approach. In Robinson, we held that "[r]etaliatory conduct other than discharge or refusal to rehire" violates Title VII when 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.' " Id. at 1300 (quoting 42 U.S.C. § 2000e-2(a)) (alterations in original). Put another way, § 2000e-3(a) prohibits a quantum of discrimination coterminous with that prohibited by § 2000e-2(a). Id. at 1300-01; see also Von Gunten, 243 F.3d at 865 (rejecting the Fifth Circuit's ultimate employment decision standard because "conformity between the provisions of Title VII is to be preferred") (internal quotation omitted).

Under § 2000e-2(a), the cognizability of a discrimination claim founded upon a hostile work environment is well-established.

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See, e.g., Harris v. Forklift Sys., Inc., 510U.S. 17, 21 (1993) (sex); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (same); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir....

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