Bonenberger v. Plymouth Township

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

12-17-1997

Bonenberger v. Plymouth Twp

Precedential or Non-Precedential:

Docket 97-1047

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Filed December 17, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1047

CHERYL BONENBERGER,

Appellant,

v.

PLYMOUTH TOWNSHIP; JOSEPH LA PENTA, SERGEANT,

PLYMOUTH TOWNSHIP POLICE DEPARTMENT

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 96-cv-00403)

ARGUED SEPTEMBER 25, 1997

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

(Filed December 17, 1997)

William L. McLaughlin, Jr.

(ARGUED)

23 South Valley Road

Post Office Box 494

Paoli, PA 19301

Attorney for Appellant

George H. Knoell, III (ARGUED)

Kane, Pugh, Knoell & Driscoll

510 Swede Street

Norristown, PA 19401

Attorney for Plymouth Township

L. Rostaing Tharaud (ARGUED)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Attorney for Joseph La Penta

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. S 1983. This appeal requires us to

decide whether a police officer acts under "color of state

law" for purposes of 42 U.S.C. S 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 La

2

Penta'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. S 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.

S 951 et seq. (1991), declining to exercise supplemental

jurisdiction over those claims pursuant to 28 U.S.C. S 1367.1

Reviewing the record de novo, we will reverse the district

_________________________________________________________________

1. 28 U.S.C. S 1367(c)(3) permits a district court to "decline to exercise

supplemental jurisdiction over a [state law] claim . . . if [it] has

dismissed

all claims over which it has original jurisdiction .. . ." Moreover, where

federal claims are dismissed before trial, the district court "must

decline

to decide the pendent state claims unless considerations of judicial

economy, convenience, and fairness to the parties provide an affirmative

justification for doing so." Borough of West Mifflin v. Lancaster, 45 F.3d

780, 788 (3d Cir. 1995).

3

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.

S 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 (1988) (quoting

United States v. Classic, 313 U.S. 299, 326 (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.

_________________________________________________________________

2. Section 1983 provides, in pertinent part,

Every person who, under color of any statute, ordinance,

regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to

the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress

. . . .

42 U.S.C. S 1983 (1996).

4

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

(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.

_________________________________________________________________

3. It appears that Sergeant La Penta and Sergeant Carbo, Bonenberger's

official supervisor, performed exactly the same role when they were in

charge of the dispatchers' shifts. The only appreciable difference between

their authority over Bonenberger was that Carbo, not La Penta, was

responsible for submitting written evaluations of her work. While this

distinction is significant, it does not justify the district court's

conclusion

that La Penta exercised no professional authority over Bonenberger.

5

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

6

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

Bonenberger to satisfy the color of law requirement of

section 1983. C.f. David, 101 F.3d at 1354 (absent some

type of state authority on the part of the defendant, "it is

difficult to establish that the abusive action was

perpetrated `under color of state law' rather than as an

essentially private act of sexual harassment.") (citations

omitted). If a state entity places an official in the position of

supervising a lesser-ranking employee and empowers him

or her to give orders which the subordinate may not

disobey without fear of formal reprisal, that official wields

sufficient authority to satisfy the color of law requirement of

42 U.S.C. S 1983.

To conclude otherwise would be to create a perverse

incentive for government employers to avoid labeling

workers as supervisors, so as to insulate themselves from

section 1983 liability. Clearly, an employer should not be

permitted to evade so easily the statutory protections

against discrimination. We, therefore, look to substance

rather than form in determining whether an individual

defendant possesses supervisory authority. In doing so

here, and for the reasons discussed above, we will reverse

the district court's grant of summary judgment in favor of

La Penta.

B.

Bonenberger also alleges a section 1983 violation by

Plymouth Township Police Department.4 The district court

properly concluded that Bonenberger's allegations do not

create a genuine issue of fact concerning whether the

township's failure to train, discipline or control La Penta

_________________________________________________________________

4. As in past cases, we treat the municipality and its police department

as a single entity for purposes of section 1983 liability. See, e.g.,

Colburn

v. Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir. 1988).

7

violated 42 U.S.C. S 1983 and the equal protection clause of

the Fourteenth Amendment. Section 1983 would impose

liability for La Penta's inadequate training and discipline

only if the Plymouth Police Department was deliberately

indifferent to the rights of persons with whom he came in

contact. See City of Canton, Ohio v. Harris, 489 U.S. 378,

388 (1989) (holding that inadequate police training cannot

give rise to mere respondeat superior liability). Deliberate

indifference exists if the challenged act implements a

municipal policy, i.e., a "statement, ordinance, regulation,

or decision officially adopted and promulgated by[a local

governing] body's officers." Simmons v. City of Philadelphia,

947 F.2d 1042, 1059 (3d Cir. 1991) (citation omitted).

Section 1983 liability may also exist if the allegedly

unconstitutional action reflects "practices of state officials

. . . so permanent and well settled as to constitute a

`custom or usage' with the force of law." Id. (citation

omitted).

As a result, deficient training may form a basis for

municipal liability under section 1983 only if " `both

(1) contemporaneous knowledge of the offending incident or

knowledge of a prior pattern of similar incidents, and

(2) circumstances under which the supervisor's inaction

could be found to have communicated a message of

approval to the offending subordinate' " are present.

Freedman v. City of Allentown, 853 F.2d 1111, 1117 (3d

Cir. 1988) (quoting Colburn v. Upper Darby Township, 838

F.2d 663, 673 (3d Cir. 1988)). Bonenberger has alleged no

specific inaction by La Penta's supervisors that could be

interpreted as encouraging his actions. To the contrary, it

is undisputed that the police department had a policy

against sexual harassment and that La Penta's regular

training included education intended to prevent such

behavior. Therefore, we will affirm the district court's order

granting summary judgment on Bonenberger's section 1983

claim against the department.

III.

We now turn to Bonenberger's allegation under Title VII,

in which she claims that she was subjected to hostile work

environment harassment by the Plymouth Township Police

8

Department. To make out a prima facie case of hostile work

environment sexual harassment under Title VII, a plaintiff

must prove

(1) the employee suffered intentional discriminati on

because of [his or her] sex; (2) the discrim ination 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) the

existence of respondeat superior liability.

Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d

Cir. 1990). We conclude that the district court erroneously

granted summary judgment in favor of the department on

Bonenberger's hostile work environment claim. Specifically,

we hold that the court erred in finding that Bonenberger

failed to satisfy the respondeat superior element of the

prima facie test. See Bonenberger, 1996 WL 729034, at *8.

Respondeat superior liability exists in connection with a

hostile environment sexual harassment claim if either: (1)

the tort is committed within the scope of employment (i.e.,

the harasser has actual authority over the victim, by virtue

of his job description); (2) the employer was negligent or

reckless in failing to train, discipline, fire or take remedial

action upon notice of harassment; or (3) the offender relied

upon apparent authority or was aided in commission of the

tort by the agency relationship. See Bouton v. BMW of North

America, Inc., 29 F.3d 103, 106 (3d Cir. 1994). Thus if the

employer knew or should have known of the harassment

and failed to take prompt remedial action, it is liable under

Title VII. Andrews, 895 F.2d at 1486.

In this case, the police department had a sexual

harassment policy in place during the entire period that

she worked there, and Bonenberger knew of the policy, yet

she did not file a formal report until shortly before leaving

the department. La Penta's supervisor, Captain Pettine,

testified that he learned of the harassment only five days

before Bonenberger quit, when it was reported by a

sergeant. He immediately questioned Bonenberger. Upon

learning that La Penta was the alleged aggressor, Pettine

informed Chief Cross and questioned La Penta about the

9

reported incidents. Bonenberger left the department a few

days later, claiming that she could no longer endure La

Penta's treatment. The department nonetheless continued

its investigation and despite inconclusive findings, issued

Sergeant La Penta a letter of reprimand. On the basis of

this evidence, the district court found no factual dispute

with respect to Bonenberger's hostile work environment

claim because "[d]efendants promptly and adequately

responded to Bonenberger's allegations of sexual

harassment." Bonenberger, 1996 WL 729034, at *9.

The township's remedial actions insulate it from Title VII

liability only if they were "reasonably calculated to prevent

further harassment." Knabe v. Boury Corp., 114 F.3d 407,

412 (3d Cir. 1997) (citations omitted). While the response

detailed above suggests that the department pursued

appropriate remedial action, the district court disregarded

evidence suggesting that "management-level employees had

actual or constructive knowledge about the existence of a

sexually hostile environment and failed to take prompt and

adequate remedial action" in violation of Title VII. Andrews,

895 F.2d 1486. Specifically, Bonenberger testified that her

official supervisor, Sergeant Carbo, knew about and

acquiesced in La Penta's harassment. She stated that in

mid-January 1994, La Penta pinched her buttocks in front

of a group of officers, and that "all of the officers were

laughing, including Sergeant James Carbo" who was

"standing next to Sergeant La Penta when the incident

occurred."5 She also maintains that on April 1, 1994, La

Penta approached her from behind while she was speaking

to Sergeant Carbo and slid his hand across her chest.

According to Ms. Bonenberger, although she told La Penta

to stop, Carbo merely smiled and did not indicate in any

way that he disapproved of La Penta's actions.

Bonenberger also alleges that other management-level

officials knew she was being harassed almost two months

before she resigned and chose not to discipline La Penta or

otherwise curtail the harassment.6 She testified, and the

_________________________________________________________________

5. Reproduced Record, Volume I, at 184.

6. Bonenberger resigned from her position as dispatcher on April 11,

1994. The incident when La Penta grabbed her buttocks in front of three

other police officers allegedly occurred on February 13, 1994.

10

township's investigation confirmed, that on February 13,

1994, Sergeant La Penta grabbed her buttocks in the

presence of Sergeant Galetti, Officer Obenski, and Officer

McBride. The record shows that a few weeks after the

incident witnessed by Sergeant Galetti, the police

department distributed a new version of its sexual

harassment policy, which differed from the original policy

only in its inclusion of a statement that the policy also

applied to dispatchers. Bonenberger claims that this is

evidence that the department had become aware of La

Penta's actions and, as a result, amended and redistributed

its policy on harassment. Certainly, one might reasonably

question whether an employer's simple reissuance of an

existing sexual harassment policy is an appropriate

remedial action, particularly when the employer knows both

that harassment is occurring and the name of the

employees involved.7 The discrepancy between

Bonenberger's version of the facts and that urged by La

Penta, Plymouth Township and Plymouth Police

Department, presents an issue of material fact that should

be resolved at trial.

The police department also argues that its written sexual

harassment policy insulates it from Title VII liability for

hostile environment sexual harassment. But this would be

true only if that policy contained an effective grievance

procedure. See Bouton, 29 F.3d at 110 ("[A]n effective

grievance procedure -- one that is known to the victim and

that timely stops the harassment -- shields the employer

from Title VII liability for a hostile work environment."). In

_________________________________________________________________

7. Since, under the police department's own policy, Sergeants Galetti and

Carbo were responsible for investigating complaints of sexual

harassment, see note 9, supra, their failure to take prompt and

appropriate remedial action, if proven at trial, gives rise to

departmental

liability. See Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997)(Title

VII

liability for hostile environment harassment arises when "information

[about sexual harassment] either (1) come[s] to the attention of someone

who (a) has under the terms of his employment, or (b) is reasonably

believed to have, or (c) is reasonably charged by law with having, a duty

to pass on the information to someone within the company who has the

power to do something about it; or (2) come[s] to the attention of such a

someone.").

11

this case, it is clear that the department's harassment

policy did not specify a grievance procedure.8 Since, as

previously noted, there exists a genuine dispute of material

fact as to whether the department's remedial efforts were

otherwise adequate, we must reverse.

IV.

Bonenberger also alleges that she suffered quid pro quo

sexual harassment. We recently held that "[u]nwelcome

sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature constitute

[quid pro quo] 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 individual . . . ." Robinson v. City of Pittsburgh, 120

F.3d 1286, 1296 (3d Cir. 1997) (quoting 29 C.F.R.

S 1604.11(a)(1) and (a)(2)).

Bonenberger maintains that two sets of facts alleged in

her complaint satisfy this definition. First, La Penta told her

that she had taken too many sick days, adding "you better

-- if you really like this job and you want to stay here, you

better start straightening out and conforming to the rules."

Bonenberger attempts to characterize this as a veiled threat

to have her fired for rejecting his sexual advances. Second,

she claims La Penta's behavior effectively conditioned her

continued employment upon her willingness to endure a

_________________________________________________________________

8. The department's policy is a two-page statement divided into four

sections. The first section, entitled "Purpose," is a paragraph generally

emphasizing that "the Plymouth Township Police Department will not

tolerate sexual harassment of any type." Plymouth Township Police

Department, General Order D-137, dated March 1, 1994, at 1. The

second section, "Policy" adopts the EEOC's definition of sexual

harassment, directs employees to refrain from engaging in such

harassment, states that complaints must be investigated, and indicates

that those who violate the policy will be disciplined. The third section

defines the terms "employee" and "sexual harassment," and offers

examples of offending conduct. The final section, "Distribution,"

indicates that a copy of the policy should be given to all personnel.

12

sexually-charged hostile work environment. Neither of these

theories alleges a claim of quid pro quo sexual harassment.

Although Bonenberger claims that she viewed La Penta's

warning about sick leave as a threat that La Penta would

seek to have her fired, she conceded at her deposition that

even when the statement was made, she knew La Penta

lacked power to terminate her employment. Title VII quid

quo pro sexual harassment generally requires that the

harasser have authority to carry out the quid pro quo offer

or threat. See Tomkins v. Public Service Electric & Gas Co.,

568 F.2d 1044, 1048-49 (3d Cir. 1977) (quid pro quo sexual

harassment occurred when supervisor responsible for

evaluating plaintiff 's work stated during promotion

discussion that he expected her to have sexual relations

with him); Craig v. Y & Y Snacks, 721 F.2d 77, 80 (3d Cir.

1983) (plaintiff 's dismissal for refusing sexual advances of

supervisor with plenary authority over employment

decisions was quid pro quo harassment). In this case, it is

undisputed that La Penta could not fire Bonenberger, even

assuming he actually threatened to do so.

More importantly, Title VII liability exists only if"the

consequences attached to an employee's response to the

sexual advances [are] sufficiently severe to alter the

employee's compensation, terms, conditions or privileges of

employment." Robinson, 120 F.3d at 1296-97. La Penta's

statement that abusing the department's sick leave policy

could cause her dismissal in no way changed the terms and

conditions of Bonenberger's employment, because she had

always been subject to dismissal for improperly failing to

report for work. Further, La Penta did not suggest, either by

word or action, that sexual favors were the price for keeping

her job. Therefore, we hold that the district court properly

concluded that no quid pro quo threat existed on this

record.

Bonenberger also presents a novel argument that

constructive discharge due to a hostile work environment

may provide the "quid" in a claim of quid pro quo sexual

harassment under Title VII. She argues that in her case, La

Penta's actions effectively made enduring his harassment a

condition of keeping her job. This reasoning confuses the

elements of quid pro quo and hostile work environment

13

harassment. Sex discrimination results in constructive

discharge if "the conduct complained of would have the

foreseeable result that working conditions would be so

unpleasant or difficult that a reasonable person in the

employee's shoes would resign." Goss v. Exxon Office

Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984).

Although Bonenberger has alleged facts sufficient to survive

summary judgment on her claim of constructive discharge

due to a hostile work environment, this alone is not enough

to make out a claim for quid pro quo harassment. In this

case, there is no quo for the alleged quid of enduring the

hostile work environment. As noted above, quid pro quo

harassment requires a direct conditioning of job benefits

upon an employee's submitting to sexual blackmail, or the

consideration of sexual criteria in work evaluations. In the

absence of evidence that the employer intended to force the

plaintiff 's resignation, constructive discharge cannot form

the basis for quid pro quo sexual harassment.9 While the

line between quid pro quo and hostile work environment

harassment is not always clear and the elements present in

one case sometimes may give rise to both types of claims,

such is not the case here. We therefore reject Bonenberger's

hybrid legal theory and affirm the district court's order

granting summary judgment with respect to her claim of

quid pro quo harassment.

For the foregoing reasons, we affirm the district court's

order granting summary judgment with respect to

Bonenberger's Title VII claim of quid pro quo sexual

harassment and her section 1983 claim against Plymouth

Township. With regard to all other claims, we will vacate

the district court's order granting summary judgment and

remand for further proceedings consistent with this opinion.10

_________________________________________________________________

9. We do not decide whether constructive discharge, combined with

evidence that the employer sought to force a resignation, can ever

constitute quid pro quo sexual harassment. Since no such evidence has

been presented in this case, we defer resolution of this question for

another day.

10. We also reject Bonenberger's argument that the district court erred

in permitting Appellees additional time in which to amend their

summary judgment motion. Under the circumstances, this decision was

well within the district court's discretion.

14

On remand, the district court is directed to reinstate

plaintiffs' state law claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15