Konstantopoulos v. Westvaco Corp

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

5-6-1997

Konstantopoulos v. Westvaco Corp

Precedential or Non-Precedential:

Docket 94-7462

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Filed May 6, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-7462

SHERLYN KONSTANTOPOULOS and

DIMOS KONSTANTOPOULOS,

Appellants

v.

WESTVACO CORPORATION

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

(D.C. Civil No. 90-00146)

Argued: January 10, 1996

Before: SCIRICA, ALITO and WEIS, Circuit Judges

(Opinion Filed: May 6, 1997)

Diana S. Donaldson (Argued)

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellants

Donald E. Reid (Argued)

Andrea L. Rocanelli

Morris, Nichols, Arsht & Tunnell

1201 North Market Street

Post Office Box 1347

Wilmington, DE 19899

Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Sherlyn Konstantopoulos, a former employee of Westvaco

Corporation, and her husband, Dimos Konstantopoulos,

brought this action against Westvaco, asserting claims for

sexual harassment and retaliation under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well

as claims under Delaware law. The district court held that

the state-law claims were barred by the state Workmen's

Compensation Act, and after a bench trial on the Title VII

claims, the court awarded some, but not all, of the relief

that the plaintiffs sought. The plaintiffs then took this

appeal, but we affirm.

I.

A. The following facts are either undisputed or were

properly found by the district court. Sherlyn

Konstantopoulos (hereinafter "Konstantopoulos") began

work at Westvaco in September 1987. 6/30/94 Dist. Op. at

3. After initially working as a "helper" in the "Finishing

Department," she was promoted in April 1989 to the

position of "helper" in the "Web" Department. Id. at 3-4.

The Web Department contained a single printing press that

used large rolls of paper spliced together to create one

continuous "web" of paper. Id. at 4. Workers in the Web

Department were divided into four "tours," and

Konstantopoulos was initially assigned to "D" tour under

the supervision of foreman Ron Hurley. Id. at 4-5. Mike

Marshall and Ed Peterman were also assigned to this tour.

Id. at 5-6. At the time, Konstantopoulos was the only

woman working in the Web Department, and she was given

little training. Id. at 6. The district court found that

Westvaco "did not in any way prepare its employees - male

and female - to work in an environment where men were

working for the first time with women and where women

were working for the first time with machinery." Id. at 32.

During her time with this tour, "Ed Peterman, rather

than provide substantial assistance to [Konstantopoulos] on

2

[certain] assignments . . . , gave nonresponsive, sarcastic

answers to [Konstantopoulos's] questions `quite a few

times.' " For instance, Konstantopoulos testified that on one

occasion when she asked for Peterman's help with a lid on

a drum, he responded: "Aren't you liberated?" Id. at 8.

Another time, when Konstantopoulos informed Peterman

that there was a malfunction on a particular machine,

Peterman told her to fix the machine herself even though

she had not been trained to do so. Id. Peterman also

threatened on many occasions to send Konstantopoulos

back to the Finishing Department if she could not perform

in the Web Department. Id. Konstantopoulos's evaluations

in late May reflected "below average ratings in several

categories of work, including knowledge, quantity and

quality of work, and judgment and common sense." Id. at

9.

During Konstantopoulos's assignment to "D" tour, Mike

Marshall engaged on several occasions in sexually

suggestive behavior directed toward her. 6/30/94 Dist. Ct.

Op. at 7, 10-11. For instance, one day in April when she

was working about 25 feet away from Marshall, with whom

she had had no prior contact, "Marshall yelled: `Sherri, look

at this.' [Konstantopoulos] looked up, `saw white' and

Marshall's `pants' flaps open'; [Konstantopoulos] turned her

head immediately and covered her eyes. [Konstantopoulos]

continued working and did not discuss this experience with

anyone." Id. at 7. Konstantopoulos testified that in June

1989 Marshall made other similarly suggestive gestures or

remarks on three occasions. See id. at 11.

After these incidents, Konstantopoulos met with Frank

Alcamo, the plant manager, and told him about some of the

things that Marshall and Peterman had done. See 6/30/94

Dist. Ct. Op. at 11. Konstantopoulos then met twice with

other Westvaco management representatives on June 21,

1989. See id. The first meeting was attended by the

personnel manager and the supervisor of the Web

Department, as well as the union president. See id. at 11-

12. Konstantopoulos reiterated the information that she

had given to Alcamo and also complained that her foreman,

Ron Hurley, was not training her. Id. Westvaco

management then met with Marshall and Peterman, who

3

denied the charges. See id. at 12. "Westvaco's `EEOC policy'

was read to both Marshall and Peterman, along with the

admonition that `increasingly severe disciplinary measures'

would be taken if any further sexual harassment

complaints were made against either of them." Id. Later the

same day, Konstantopoulos met again with Westvaco

management and agreed to be transferred to a new tour

commencing the next day, June 22, 1989. See id. at 12-13.

The foreman of Konstantopoulos's new tour was Larry

Cahall, who "was not informed of the circumstances

underlying [Konstantopoulos's] transfer." 6/30/94 Dist. Ct.

Op. at 3. Konstantopoulos experienced harassment during

this tour as well. See id. at 14-16. One day in July 1989,

she found a note that said: "Sherry doesn't need help, she

needs a babysitter." Id. at 14. On approximately July 19,

her locker (and three others) were damaged, and shortly

thereafter she found trash in her locker. Id. at 14. On July

21, she filed a complaint with the Equal Employment

Opportunity Commission, charging that her locker had

been damaged in retaliation for her complaints against

Marshall and Peterman. See id. at 20. On July 24, she

reported to Cahall that her locker had been damaged. Id. at

14. Cahall then advised his supervisor, who issued a

warning that anyone found guilty of vandalism would be

disciplined. Id.

In August, someone wrote a sexually insulting remark

concerning Konstantopoulos on a clipboard that was kept

near a machine in the Web Department. See 6/30/94 Dist.

Ct. Op. at 14-15. Konstantopoulos reported this incident to

Cahall, who said that it would be difficult to identify the

perpetrator and suggested that Konstantopoulos erase the

writing or throw the clipboard away. Id. at 15.

According to Konstantopoulos, during the period from

July 23 to August 28, 1989, a co-worker, Greg Games,

made several sexually insulting or threatening remarks to

her. See 6/30/94 Dist. Ct. Op. at 15. On one occasion, she

said, he grabbed her by the neck and said that he would

like to kill her. Id.

"[Konstantopoulos] did not report any of these incidents

to anyone at Westvaco at the time they occurred." Id. at 15.

4

"[She] testified, however, that she was`upset,' `afraid,'

`hurt,' `humiliated,' and `diminished' by the various

incidents." Id. at 15-16. At the end of every tour,

Konstantopoulos was evaluated by foreman Cahall, and

these evaluations were frequently below average or

unsatisfactory. See id. at 16.

On September 2, 1989, Konstantopoulos gave Cahall a

note from her doctor, Costas A. Terris, advising that she

should be assigned to a "light duty job" for three to four

weeks due to "job and home-related stress." 6/30/94 Dist.

Ct. Op. at 16. Westvaco asked Konstantopoulos for

additional information concerning the type of light-duty

work that she could perform, but she instead supplied a

second note from Dr. Terris, dated September 14, 1989,

which stated that she had been under his care since

August 21, 1989, for the treatment of "severe work induced

stress"; that "[t]here appear[ed] to be some improvement";

but that she should "remain off work for another 3-4

weeks." Id. at 16-17. On September 11, 1989,

Konstantopoulos supplemented her prior EEOC complaint

by reporting, among other things, that a "derogatory sexual

remark" had been written about her on a clipboard and

that foreman Cahall had not taken any action in response.

Id. at 20. She stated that she had suffere d"anxiety and

stress resulting in los[t] time from work and extensive

medical bills." Id.

Konstantopoulos remained out of work until October 30,

1989, when she "returned to work, able and willing." Id. at

17. However, she elected to take a layoff, and she did not

return to work thereafter until she was recalled on April 16,

1990. Id. On December 21, 1989, while Konstantopolous

was laid off, the EEOC issued two right-to-sue letters, and

on March 27, 1990, she commenced this action byfiling a

complaint against Westvaco. See id. at 21. Her complaint

asserted Title VII claims for sexual harassment and

retaliation, as well as a state-law claim for tortious

infliction of emotional distress.

When Konstantopoulos returned to work on April 16,

1990, she was again assigned to the Web Department, with

Ron Hurley as her foreman. 6/30/94 Dist. Ct. Op. at 17.

During her first tour, she broke a piece of machinery and

5

was publicly chastised by Hurley. Id. at 17. During her next

tour (April 23 and 24), she was temporarily transferred to

the Finishing Department because there was not sufficient

work in the Web Department. Id. at 18. None of her co-

workers harassed her during this two-day period. Id.

On April 25, Konstantopoulos was assigned as a helper

in the Web Department on Larry Cahall's tour. 6/30/94

Dist. Ct. Op. at 18. Konstantopoulos informed Cahall of her

apprehension about the assignment, but Cahall was

required by the collective bargaining agreement to transfer

her to the Web Department "because she was the person in

the Finishing Department with the most seniority who had

worked in the Web Department previously." Id. Cahall,

however, assured Konstantopoulos that he would be

available in his office if she needed him, and he also

warned the crew that he would not tolerate any harassment

of her. Id. In addition, Cahall made frequent visits to the

Web Department that day, "entering through a different

door each time, and he spent more time than he normally

would in the area." Id.

Konstantopoulos made no complaints to Cahall that day,

but she testified at trial concerning two incidents involving

co-workers. See id. at 18-19. She stated that Mike Marshall

and Ed Peterman "squinted their eyes . . . and shook their

fist[s]" at her and that another co-worker threw away her

lunch. Id. The district court stated that it was not clear

from the record whether Konstantopoulos's name was on

her lunch bag and that the co-worker who threw away the

bag stated that he had done so accidentally. See id. at 19.

After completing her shift on April 25, Konstantopoulos

left without speaking to anyone from Westvaco. Id. at 19.

The next day, she gave Cahall the following note:

To whom in may concern:

Ms. Konstantopoulos has been under my care for the

past several months for the treatment of severe work

related anxiety. She has now been referred to a local

psychiatrist to continue therapy and has also been

advised to stay off work for an additional 6-8 weeks.

Sincerely,

Costas A. Terris, M.D.

6

Id. Cahall told Konstantopoulos to go home and to call the

personnel manager the next day, and Konstantopoulos

responded: "Am I fired now?" Id. at 20. She never returned

to work at Westvaco. At the time of trial, she had not

worked anywhere else and had not looked for work. Id. at

20.

B. As eventually amended, the complaint in this case

contained six counts. Count I alleged that Westvaco had

violated § 703(a) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a), by "creating a hostile and

intimidating work environment." App. at 33. Count II

claimed that Westvaco had violated § 703(a) by engaging in

various retaliatory actions against Konstantopolous as a

result of the initial charge of sexual harassment that she

filed with the EEOC in July 1989. Count III asserted a

claim under Delaware law for intentional infliction of

emotional distress, and Count V asserted a claim under

Delaware law for sexual assault and battery. This claim was

based on, among other things, the incident in which Greg

Games grabbed Konstantopolous by the neck and stated

that he would like to kill her. The remaining count, Count

IV, asserted a claim under Delaware law by

Konstantopolous's husband, Dimos Konstantopolous, for

loss of consortium.

In June 1993, the district court granted summary

judgment in favor of Westvaco with respect to the counts of

the complaint (Counts III, IV, and V) that asserted claims

under state law. The court stated that "the facts of record

clearly indicate that the alleged incidents arose out of

[Konstantopoulos's] work relationship with the tortfeasor-

employees as opposed to any affair or personal relationship

originating outside the workplace," and the court therefore

held that the tort claims based on these incidents were

barred by the Delaware Workmen's Compensation Act.

6/4/94 Dist. Ct. Op. at 11. For similar reasons, the court

denied the plaintiffs' motion to amend the complaint to add

a claim of negligent infliction of emotional distress. See id.

at 18. In addition, since Dimos Konstantopoulos's claim in

Count IV was derivative of Counts III and V, the court

granted summary judgment on Count IV as well. See id. at

12 n.4.

7

The remaining Title VII claims were tried without a jury

in August 1993. After the trial, the court found that

Westvaco had violated Title VII by subjecting

Konstantopolous to a discriminatorily hostile or abusive

work environment during the period from April 15 through

August 27, 1989. See 6/30/94 Dist. Ct. Op. at 31-35. The

court observed that while "one can find examples of

conduct more severe than that evidenced of record,"

"[Konstantopolous's] testimony remains essentially

undisputed on the record and evidences some physically

threatening and/or humiliating discriminatory conduct." Id.

at 33-34. The court further concluded that

Konstantopolous's "work performance was directly related

to the discriminatory conduct alleged, i.e., the failure to

train." Id. at 34. The court then stated:

Having reviewed "all the circumstances," and although

the circumstances at bar are not so egregious as in

other cases, the Court concludes that a reasonable

woman would find the conduct evidenced of record to

be sufficiently offensive as to alter the conditions of her

employment.

Id.

The district court further found that Westvaco "knew or

should have known of the harassment and failed to take

proper remedial action" during the period in question.

6/30/94 Dist. Ct. Op. at 34. The court noted that, although

Konstantopolous was transferred to a new tour after the

meetings on June 21, 1989, Westvaco "did nothing to

ensure that [her] new work environment would be any

different from the one she was leaving." Id. at 35. The court

continued:

Plaintiff's new foreman, Larry Cahall, was not informed

of plaintiff's complaints; he, therefore, did not formally

address the matter of additional training for plaintiff on

the machinery and never addressed at all any

additional training for the crew regarding defendant's

policy against sexual harassment. It is clear from the

record that defendant generally failed to provide its

employees with the information and mechanisms

necessary to successful effectuate its policies against

8

discrimination. It is clear from the record as well that

defendants specifically failed to remedy the hostile

work environment encountered by plaintiff during the

period April 15 through August 27, 1989.

Id. As relief for this period, the court awarded back pay but

declined to award front pay because the court found that

Konstantopolous had failed to mitigate damages. See id. at

37-38.

The district court "decline[d] . . . to extend the hostile

work environment characterization past August 1989."

6/30/94 Dist. Ct. Op. at 35. The court noted that

Konstantopoulos was " `ready, willing and able' to return to

work (without any further discussions with defendant

regarding the work environment) by October 1989 and

continued to so affirm through April 25, 1990." Id. The

court therefore concluded that "the incidents alleged by

plaintiff in April 1990 [were] sufficiently removed in time to

be considered independently from those occurring in 1989."

Id. Moreover, the court wrote that those incidents,

"considered independently, were neither severe nor

pervasive enough to have created a hostile work

environment." Id. at 35-36. Finally, the court found, based

in part on Konstantopolous's "apparent attitude in April

1990," that her "inability to work in April 1990 and

thereafter [was] not necessarily related to[Westvaco's]

conduct." Id. at 36. The court also concluded that the

conditions of Konstantopolous's employment in April 1990

were not so intolerable that a reasonable person in her

position would have resigned, and the court therefore held

that she had not been constructively discharged. See id. at

36-37.

Sherlyn and Dimos Konstantopolous then took this

appeal. After briefing and oral argument, we certified two

questions of state law to the Supreme Court of Delaware.

Certification was accepted, and the Supreme Court of

Delaware provided a response that we discuss in part III of

this opinion.

II.

We turn first, however, to Konstantopoulos's Title VII

arguments.

9

A. Konstantopolous first contends that the district court

improperly evaluated the events that occurred during her

second period of employment in isolation and that instead

the court should have viewed them as a continuation of the

harassment that had taken place seven months earlier. We

hold, however, that the district court applied the correct

legal standard and that its conclusion about the duration of

the hostile or abusive environment to which

Konstantopoulos was subjected is supported by the facts.

"[A] plaintiff may establish a violation of Title VII by

proving that discrimination based on sex has created a

hostile or abusive work environment." Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 66 (1986). See also Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21 (1993). "For sexual

harassment to be actionable, it must be sufficiently severe

or pervasive `to alter the conditions of [the victim's]

employment and create an abusive working environment.' "

Meritor Sav. Bank, 477 U.S. at 67 (citation omitted). The

plaintiff must subjectively perceive the environment to be

hostile or abusive, and conditions must be such that a

reasonable person would have the same perception. Harris,

510 U.S. at 21.

The Supreme Court has stated that a determination

whether an environment is hostile or abusive can be made

"only by looking at all the circumstances." Harris, 510 U.S.

at 23. See also Meritor Sav. Bank, 477 U.S. at 68. This

court has similarly stressed that the "totality of the

circumstances" must be examined, Andrews v. City of

Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990), and has

"precluded an individualized, incident-by-incident

approach" to making such a determination. West v.

Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995).

In this case, the district court expressly stated that it had

examined the totality of the circumstances. See Dist. Op. at

30, 34. Konstantopoulos argues, however, that the court

merely "paid lip service" to this principle and "then treated

the incident of April 19, 1990 in isolation." Appellants' Br.

at 22. In making this argument, Konstantopoulos focuses

on the court's statement that the events of April 1990 were

" `sufficiently removed in time to be considered

independently from those occurring in 1989 and,

10

considered independently, were neither severe nor pervasive

enough to have created a hostile work environment.' "

Appellants' Br. at 19 (quoting Dist. Op. at 35-36) (emphasis

added in appellants' brief). We do not believe that

Konstantopoulos has fairly interpreted the district court's

opinion. A fairer interpretation, in our view, is that the

district court found that the effects of the harassment that

occurred from April through August 1989 had dissipated by

the time that Konstantopolous returned to work in April

1990; that, therefore, without any new incidents of

harassment, there would be no basis for concluding that

the working environment in April 1990 was hostile or

abusive; and that the few incidents that occurred when

Konstantopolous returned were not sufficiently numerous

or severe to warrant the conclusion that the working

environment remained hostile or abusive. We see no error

in this mode of analysis.

Moreover, we conclude, based on our own examination of

the record, that Konstantopolous was not subjected to a

hostile or abusive working environment when she returned

to work in April 1990.1 Like the district court, we find

several factors that support this conclusion. First, the

passage of nearly seven months between the end of

Konstantopolous's first period of employment and the

_________________________________________________________________

1. The parties disagree regarding the standard of appellate review that

should be applied to the district court's conclusion that Konstantopoulos

was not subjected to a hostile or abusive working environment in April

1990. Konstantopoulos contends that the standard of review is plenary

(Appellant's Br. at 1) while Westvaco argues that the appropriate

standard is clear error. Appellee's Br. at 1. Neither party, however, has

briefed this issue, on which the courts of appeals are divided. Compare

Crawford v. Medina General Hosp., 96 F.3d 830, 835-36 (6th Cir. 1996),

(question of fact reviewed for clear error), and Amirmokri v. Baltimore Gas

& Electric Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (same), with Fuller v.

City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (mixed question

subject to de novo review). The Supreme Court "has long noted the

difficulty of distinguishing between legal and factual issues." Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 401-02 (1990). See also, e.g.,

Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982). Here, we find it

unnecessary to decide which standard of review to apply because under

either standard we see no ground for reversing the district court's

decision.

11

beginning of the second is significant. This hiatus provided

an opportunity for the lingering effects of the prior incidents

to dissipate. Second, as the district court noted, after

leaving work for medical reasons in August 1989,

Konstantopolous herself stated that she was ready, willing,

and able to return to work by October 1989 "and continued

to so affirm through April 25, 1990," when she eventually

returned. 6/30/94 Dist. Ct. Op. at 35. Thus,

Konstantopolous's conduct suggests that, in her mind, the

effects of the prior incidents had dissipated well before she

actually returned to work. Third, the nature of the incidents

that took place when Konstantopolous returned is

important. Although we can well understand why

Konstantopolous would be troubled by the mute gestures

made by Marshall and Peterman -- squinting their eyes

and shaking their fists -- this incident cannot in itself be

characterized as particularly severe. Moreover, the only

other incident cited by Konstantopoulos -- the throwing

away of her lunch -- seems minor, since it is not clear that

Konstantopolous's name was on the bag, and the offending

co-worker stated that he had thrown it away accidentally.

Id. at 19. Fourth, it is apparent that Westvaco sought to

prevent any harassment of Konstantopoulos when she

returned to work and provided procedures by which any

improper conduct by co-workers could have been remedied.

As previously noted, foreman Larry Cahall warned the crew

that he would not tolerate any harassment of

Konstantopoulos and assured her that he would be

available in his office if she needed him. He also made

frequent, unannounced visits to the Web Department and

"spent more time than he normally would in the area."

6/30/94 Dist. Ct. Op. at 18. Konstantopoulos, however,

made no complaints to Cahall either during or after her

shift, and when she returned to work the next day with a

physician's note stating that she had been advised to stay

off work for six to eight weeks, she commented:"Am I

fired?" All of these factors seem to us to suggest that

Konstantopoulos was not subjected to hostile or abusive

environment when she returned to work in April 1990.

To be sure, there are factors that point in the opposite

direction. One of these is the severity of the conduct of her

co-workers during the period from April through August

12

1989. Although the district court observed that "one can

find examples of conduct more severe than that evidenced

of record," the court added that there was "essentially

undisputed" evidence that Konstantopoulos was subjected

to "some physically threatening and/or humiliating

discriminatory conduct." Another similar factor is

Konstantopoulos's assignment to work under

circumstances that ensured that she would encounter the

co-workers responsible for the prior harassment.

We do not, however, agree with Konstantopolous that her

argument is substantially supported by her assignment to

work under foremen Hurley and Cahall. We recognize that

the prior incidents of abuse by co-workers occurred while

Konstantopoulos was working under the supervision of

these men, but Konstantopoulos did not report any of the

most serious incidents to anyone from Westvaco at the time

when they occurred. See 6/30/94 Dist. Ct. Op. at 7, 10.

Moreover, when Konstantopoulos briefly worked under

Hurley's supervision in April 1990, no alleged acts of sexual

harassment occurred, and when she was again assigned to

work under Cahall's supervision, he took pains to prevent

the recurrence of such abuse. Viewing all of the evidence

bearing on Konstantopoulos's working environment in April

1990, including all of the events that took place during her

prior period of employment, we agree with the district court

that she was not subjected to a hostile working

environment in April 1990.

Konstantopoulos argues that requiring her "to [w]ork

[w]ith [t]he [v]ery [e]mployees [w]ho [h]ad [s]exually

[h]arassed [h]er [s]even [m]onths [b]efore [c]onstituted

[a]dditional [s]exual [h]arassment." Appellants' Br. at 23. To

the extent that Konstantopoulos is simply arguing that her

assignment in April 1990 to work in proximity to Marshall

and Peterman is a factor that must be considered in

determining whether she was subjected to a hostile or

abusive working environment at that time, we readily agree.

As we believe we have already made clear, we view this as

a significant factor weighing in her favor, but after

examining the totality of the circumstances, we conclude

that her reassignment to the Web Department and her

encounter with Marshall and Peterman are insufficient to

13

justify the conclusion that she was subjected to a hostile

working environment when she returned to work.

To the extent that Konstantopoulos goes further and

suggests that requiring her to work in proximity to Marshall

and Peterman constituted illegal sexual harassment per se,

we disagree. As prior decisions of the Supreme Court and

our court make clear, the proper test is whether, under all

the circumstances, a reasonable person would find the

working environment to be hostile or abusive. See Harris,

510 U.S. at 23; West, 45 F.3d at 756; Andrews, 895 F.2d

at 1486. We therefore see no justification for adopting the

per se rule that Konstantopoulos seems to advocate.

Nor do we believe that Cortes v. Maxus Exploration Co.,

977 F.2d 195 (5th Cir. 1992), or Ellison v. Brady, 924 F.2d

872 (9th Cir. 1991), on which Konstantopolous relies,

supports such a per se rule. In Cortes, an employee, Cortes,

was subjected to severe and persistent sexual harassment

by her immediate supervisor, Acero. See 977 F.2d at 197-

98. Although Cortes complained about this harassment to

her employer's human resources manager, he did nothing

to rectify the situation. Id. Eventually, Cortes was

transferred to another department, but Acero continued to

harass her. Id. Cortes again complained to the human

resources manager, but he dismissed her complaints. Id.

Eventually, Cortes was informed that she would have to

work under Acero's immediate supervision or resign. Id.

Although she told the human resources manager that she

was afraid to work for Acero, the human resources manager

replied that there was nothing that he could do. Id.

Faced with this record, the Fifth Circuit sustained the

district court's finding that the employer, Maxus, had

subjected Cortes to a hostile or abusive environment. The

court wrote:

Even in light of the strong evidence that Acero had

sexually harassed Cortes when she was under his

supervision and that when given the opportunity, he

had continued to do so even after she was transferred

out of his department, Maxus transferred Cortes to this

sexually abusive environment. When Cortes expressed

her fears about accepting the transfer, Maxus refused

14

to take any remedial measures to protect her. . . . We

find no clear error in the district court's conclusion

that these acts amounted to sexual harassment within

the meaning of Title VII.

Id. at 199.

It is clear to us that Cortes does not stand for the

proposition that it is always illegal for an employer to

require a prior victim of sexual harassment to return to

work in the company of co-workers responsible for the prior

harassment. Rather, Cortes, in our view, merely held that

the employer in that case violated Title VII by requiring the

employee to work in an environment where sexual

harassment seemed almost certain and by refusing to take

any remedial measures.

Ellison provides somewhat stronger support for

Konstantopolous's argument, but we do not interpret it as

adopting a per se rule. In that case, a male IRS agent (Gray)

persistently expressed a romantic interest in a female agent

(Ellison), who did not reciprocate his sentiments and found

his conduct to be "weird[ ]," "crazy" and "frighten[ing]."

Ellison, 924 F.2d at 874. After Ellison complained to their

supervisor, Gray was temporarily transferred from the San

Mateo, California, office to the San Francisco office, but he

was permitted to return to San Mateo six months later. Id.

at 874. The Ninth Circuit held that "Gray's conduct, as

alleged by Ellison, was sufficiently severe or pervasive to

alter the conditions of Ellison's employment and create an

abusive working environment." Id. at 876. Turning to the

question whether the Treasury Department had taken

sufficient remedial action to shield it from liability under

Title VII, the Ninth Circuit concluded that it was unable to

determine based on "the scant record" before it "whether a

reasonable woman could conclude that Gray's mere

presence at San Mateo six months after the alleged

harassment would create an abusive environment." Id. at

883. The court stated that it did not "know how often

Ellison and Gray would have to interact at San Mateo" and

added that "the facts concerning the government's decision

to return Gray to San Mateo" warranted further

exploration. Id.

15

We do not interpret Ellison as adopting a per se rule.

Rather, the court merely held that, based on the facts in

the record, it was unable to determine whether the

employer's decision to permit the harasser to return to the

same office as the victim created an environment that

violated Title VII. We recognize that the Ellison court stated

that it believe that "in some cases the mere presence of an

employee who has engaged in particularly severe or

pervasive harassment can create a hostile working

environment." 924 F.2d at 883. Even this statement,

however, does not endorse a blanket rule. Rather, it merely

states that in some cases (i.e., those involving "particularly

severe or pervasive harassment") the mere presence of the

harasser "can" be enough to create a hostile environment.

In sum, having considered the totality of the

circumstances, we agree with the district court that,

although Konstantopolous was subjected to a hostile and

abusive working environment during her first period of

employment with Westvaco, she was not subjected to such

an environment during her brief second period of

employment.

B. In light of our conclusion that no hostile work

environment existed at the time that Konstantopoulos

voluntarily left Westvaco's employ, Konstantopoulos cannot

show the necessary predicate to maintain a constructive

discharge claim, specifically, that there were "conditions of

discrimination" so intolerable that a reasonable person

would have resigned.2 Goss v. Exxon Office Sys. Co., 747

_________________________________________________________________

2. Even if we had not reached this conclusion, we would reject

Konstantopoulos's argument that the district court erroneously rejected

her constructive discharge claim "based on what it apparently believed to

be additional requirements specified in Clowes v. Allegheny Valley Hosp.,

991 F.2d 1159, cert. denied, 114 S.Ct. 441 (1993)." Appellants' Br. at 26.

After properly applying the Goss standard for constructive discharge,

6/30/94 Dist. Ct. Op. at 36-37, the district court observed that there are

a list of factors that are "commonly cited by employees who claim to

have been constructively discharged." Id. Contrary to Konstantopoulos's

assertion, the district court did not "procee[d] impermissibly to impose

those factors as additional requirements for a constructive discharge

claim." Appellants' Br. at 28. The court merely used these factors as an

illustrative guide in exactly the same manner as this court used those

16

F.2d 885, 888 (3d Cir. 1984). The district court therefore

properly rejected her constructive discharge claim.

C. Konstantopoulos next contends that the district

court abused its discretion in excluding the testimony of

her expert psychological witness, Jay Ann Jemail, Ph.D.,

based on trial counsel's failure to comply with relevant

pretrial discovery orders. "The trial court's exclusion of

testimony because of the failure of counsel to adhere to a

pretrial order will not be disturbed on appeal absent a clear

abuse of discretion." Semper v. Santos, 845 F.2d 1233,

1238 (3d Cr. 1988). In determining whether a district court

abused its discretion, we consider:

(1) the prejudice or surprise in fact of the party

against whom the excluded witnesses would have

testified, (2) the ability of that party to cure the

prejudice, (3) the extent to which waiver of the rule

against calling unlisted witnesses would disrupt the

orderly and efficient trial of the case or other cases in

the court, and (4) bad faith or wilfulness in failing to

comply with the district court's order.

Meyers v. Pennypack Woods Home Ownership Ass'n, 559

F.2d 894, 904-905 (3d Cir. 1977). See also Beissel v.

Pittsburgh and Lake Erie R.R. Co., 801 F.2d 143, 150 (3d

Cir. 1986) cert. denied, 479 U.S. 1088 (1987). We have also

stated that "the importance of the excluded testimony"

should be considered. Meyers, 559 F.2d at 904. "[T]he

exclusion of critical evidence is an `extreme' sanction, not

normally to be imposed absent a showing of wilful

deception or `flagrant disregard' of a court order by the

proponent of the evidence." Id. at 905 (quoting Dudley v.

South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977).

Applying these standards, we hold that the district court

properly exercised its discretion in excluding Dr. Jemail's

_________________________________________________________________

factors in Clowes, determining that an absence of strong evidence for

any of the factors supported a finding that the plaintiff was not

constructively discharged. Compare Clowes, 991 F.2d at 1161 and

6/30/94 Dist. Ct. Op. at 36-37. The district court therefore used the

proper legal standard.

17

testimony. Two factors strongly support the district court's

decision. First, this is clearly a case that involves a

" `flagrant disregard' of a court order by the proponent of

the evidence." Meyers, 559 F.2d at 905. As noted, the initial

complaint in this case was filed in March 1990, and the

complaint was finally amended in March 1991. The cutoff

date for expert witness discovery was extended at least

three times before a final cutoff date of January 1992 was

set. Nevertheless, Dr. Jemail did not see Konstantopoulos

until January 1993, one year after the cutoff date, and

plaintiffs' trial counsel did not advise opposing counsel that

Dr. Jemail would be called as an expert witness until a

pretrial conference on July 29, 1993, long after Dr. Jemail

was first consulted and approximately three weeks prior to

the scheduled trial date. Even then, plaintiffs' trial counsel

did not fully comply with his discovery obligations relating

to Dr. Jemail's testimony, and indeed he had not fully met

those obligations when the district court held, on August

13, 1993, that Dr. Jemail's testimony would be excluded.

Based on these facts alone, we are satisfied that this case

qualifies as one involving flagrant disregard of the pretrial

order.3

Second, we are satisfied that Westvaco was prejudiced.

The district court so found, see 8/13/92 Order at ¶ 12, and

we accept that finding. As noted, plaintiffs' trial counsel did

not advise Westvaco that he intended to call Dr. Jemail

until approximately three weeks before the scheduled trial

date. Another week elapsed before plaintiffs' trial counsel

revealed the substance of Dr. Jemail's expected testimony.

See App. 53-56. Counsel listed only two dates -- on August

13 after 3 p.m. and August 17, after 4 p.m. -- when Dr.

Jemail would be available for deposition, and no report

written by Dr. Jemail was ever turned over because,

_________________________________________________________________

3. Because we find that this case involves a "flagrant" violation of pretrial

order, we do not reach the question whether it also involved "willful

deception." See Meyers, 559 F.2d at 905 (evidence should be excluded

only in cases involving flagrant disregard of a court order or willful

deception). As to the question of willfulness in this case, see footnote 7,

infra.

18

counsel stated, Dr. Jemail did not prepare one. Under these

circumstances, the finding of prejudice was justified.4

The district court did not make findings with respect to

several of the other factors mentioned in Meyers -- the

importance of Dr. Jemail's testimony, trial counsel's good or

bad faith, Westvaco's ability to cure the prejudice, and the

extent to which waiver of the rule against calling unlisted

witnesses would have disrupted the orderly and efficient

trial of this or other cases.5 However, it is apparent that

none of these factors weighs heavily against the exclusion

of Dr. Jemail's testimony, and therefore a remand for

further findings is not necessary. With respect to the

importance of Dr. Jemail's expected testimony, it appears

that some, but not all, of her testimony was covered by the

testimony of another plaintiffs' witness, Dr. Antonio Sacre,

_________________________________________________________________

4. We are likewise satisfied that Westvaco was surprised when, 18

months after the extended discovery cutoff and approximately three

weeks before trial, plaintiffs' trial counsel informally notified it during a

pretrial conference that he intended to call a previously undisclosed

expert witness. Konstantopoulos argues:

Westvaco could not have been genuinely surprised by the addition

of Dr. Jemail as a witness. Not only did Westvaco know that Ms.

Konstantopoulos' psychological condition and the cause of that

condition were hotly contested issues in the case, but had also

known since January 1993 that Ms. Konstantopoulos was seeing a

new psychologist.

Appellants' Br. at 41. This is surely a strange argument.

Konstantopoulos would have us believe that, prior to July 29, 1993, her

trial counsel did not know that he would seek to call Dr. Jemail as an

expert witness and thus should be excused for failing to disclose that

intention any sooner, id. at 37-38, but at the same time Konstantopoulos

argues that Westvaco should have guessed well before July 29, 1993,

that her trial counsel would have to and would attempt to add a

previously undisclosed psychological expert witness. Konstantopoulos

cannot have it both ways.

5. A trial court's failure to state on the record its reason(s) for excluding

experts is not necessarily an abuse of discretion. See Sowell v. Butcher

& Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991). When a trial court does

not state its reasons for exclusion, the reviewing court may apply the

Meyers factors to the trial court's decision to determine if the court

abused its discretion. Beissel, 801 F.2d at 150-51.

19

the psychiatrist who treated Konstantopoulos.6 We do not

regard this factor as particularly favorable to either side in

this case.

We are likewise convinced that the issue of trial counsel's

good or bad faith cannot weigh significantly in

Konstantopoulos's favor.7

The parties dispute whether Konstantopoulos's trial

counsel promptly notified Westvaco after making the final

decision to call Dr. Jemail as an expert witness. Westvaco

contends that Konstantopoulos's trial counsel made that

decision months before he eventually notified Westvaco at

the July 29, 1993, pretrial conference.8 By contrast,

_________________________________________________________________

6. Konstantopoulos maintains that Dr. Jemail would have testified to "(1)

the nature of [plaintiff's] emotional problems; (2) the cause of those

problems (i.e., the sexual harassment); (3) [plaintiff's] therapeutic needs;

(4) the results of the MMPI-2; and (5) the questionable validity of the

testing done by [defendant's experts]." Appellants' Br. at 33. However,

the first three subjects were covered in the testimony of Dr. Sacre. The

only subject not covered by plaintiff's experts were the results and

validity of the MMPI-2 test. Konstantopoulos sought to impeach the

credibility of defendant's expert, Dr. Raskin, by casting doubt on the

applicability and reliability of the MMPI-2. Dr. Raskin did not refer to the

test by name on direct examination, but indicated that some of his

conclusions were based on psychological testing.

7. The district court made no finding regarding trial counsel's good or

bad faith. On appeal, Konstantopoulos notes that Westvaco urged the

district court to find that her trial counsel acted in bad faith but that the

district court failed to do so. She then suggests that the district court

rejected the proposition that her trial counsel was guilty of bad faith.

See, e.g., Reply Br. at 12. We disagree with this characterization of the

district court's order excluding Dr. Jemail's testimony. Making no finding

on the question of bad faith (which is what the district court did) is quite

different from finding that there was no bad faith.

8. Relying on time sheets submitted by Konstantopoulos's trial counsel

in connection with his application for attorney's fees, Westvaco contends

that trial counsel prepared a subpoena for Dr. Jemail and paid her bill

in February 1993. If it were necessary for purposes of this appeal to

determine when trial counsel decided to call Dr. Jemail as an expert

witness, we would remand this case to the district court for an

exploration of the significance of these facially troubling records, which

were not called to the attention of the district court in relation to the

question of trial counsel's alleged bad faith. However, because we do not

think that it is necessary to make this determination, we do not find a

remand to be essential.

20

Konstantopoulos argues that her trial attorney did not

make that final decision until shortly before the pretrial

conference. However, Konstantopoulos does not dispute the

fact that trial counsel had been preparing for the possibility

of calling Dr. Jemail as a witness for some months.9 Yet

despite this, despite the fact that the cutoff for expert

discovery had passed more than a year earlier, and despite

the fact that the trial date was rapidly approaching, trial

counsel delayed notifying Westvaco. It seems clear that trial

counsel was, at best, attempting to gain a tactical

advantage by delaying notification of Westvaco until the last

possible date that could plausibly be claimed as the date on

which the final decision about calling Dr. Jemail had been

made. This approach was not commendable, and the

intentions of Konstantopoulos's trial counsel therefore

cannot possibly weigh appreciably in her favor.10

_________________________________________________________________

9. Konstantopoulos's trial attorney admitted that, as of January 1993,

Jemail was being considered for "possible testimony." App. 53.

Konstantopoulos's counsel asserted that in January 1993, he "did not

know whether [Jemail] was seen for purposes of testimony or treatment

or both." Id.

10. Konstantopoulos tries to characterize her trial counsel's failure to list

Jemail and disclose the substance of her testimony and test results as

"excusable delay," akin to the "lack of diligence" that was held not to

constitute bad faith in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 793

(3d Cir. 1994), cert. denied, General Electric Co. v. Ingram, 115 S.Ct.

1253 (1995). That case is inapposite. There, the expert had been

identified and the substance of most of his testimony had been disclosed

prior to the discovery date. The plaintiff's delay in providing part of the

testimony after substantial compliance was held to be excusable.

The instant case is more closely analogous to Sowell v. Butcher &

Singer, Inc., 926 F.2d 289 (3d Cir. 1991). Several years before trial, the

plaintiff in that case had been served with interrogatories, requesting the

identification of experts and a summary of the substance of their

testimony. See id. at 301. The plaintiff failed to list the experts until

shortly before trial and did not indicate what the substance of their

testimony would be. See id. "The record include[d] a detailed exchange of

correspondence between the parties' attorneys documenting the refusal

of [plaintiff's] counsel to make his experts available or to supply

information regarding the substance of their testimony." Id.

Here, as in Sowell, "Counsel . . . failed to satisfy the obligations

imposed upon him by the rules of discovery and cannot now be heard to

complain that the district court erred in failing to admit expert

testimony." Sowell, 926 F.2d at 302.

21

We are unmoved by Konstantopoulos's argument that

Westvaco could have "cured" the prejudice resulting from

trial counsel's late designation of Dr. Jemail as an expert

witness. The thrust of Konstantopoulos's argument is that

Westvaco, by means of sufficient last-minute scrambling,

could have managed to prepare to meet Dr. Jemail's

expected testimony at trial. Even if this is true, however,

Konstantopoulos would have gained a valuable tactical

advantage by requiring Westvaco to focus its litigation

resources on these efforts in the last days before trial.

Finally, even if we assume that permitting Dr. Jemail to

testify would not have disrupted the commencement or the

progress of the trial in this case, that factor, either alone or

in conjunction with the other relevant factors, would not

persuade us that the district court's decision to exclude Dr.

Jemail's testimony constituted an abuse of discretion.

In sum, after examining all of the factors identified in our

prior cases, we hold that the district court did not abuse its

discretion, and we therefore sustain its decision.

III.

The final question that we must address is whether the

district court correctly held that the plaintiffs' state-law

claims were barred by the Delaware Workmen's

Compensation Act. The Act restricts an employee's ability to

assert a tort claim against his or her employer for "personal

injury or death by accident arising out of and in the course

of employment." Del. Code Ann. tit. 19, § 2304 (1996).

However, the Act does not prevent an employee from

recovering in tort for "any injury caused by the wilful act of

another employee directed against the employee by reasons

personal to such employee and not directed against the

employee as an employee or because of the employee's

employment." Del. Code Ann. tit. 19, § 2301(15) (1996).

As previously noted, the plaintiffs' amended complaint

asserted three tort claims under Delaware law. Count III,

which asserted a claim for intentional infliction of emotional

distress, alleged that Westvaco and its agents and

employees intentionally inflicted acts of sexual harassment

and retaliation on Konstantopoulos. Count V, which

22

asserted a claim for sexual assault and battery, alleged that

Westvaco was liable principally as a result of the incident in

which Konstantopoulos's co-worker Greg Games violently

grabbed her by the neck and stated: "I'd like to kill you."

Finally, Count IV asserted a derivative claim for loss of

consortium on behalf of Konstantopoulos's husband.

The district court held that all of these claims were

barred by the Delaware Workmen's Compensation Act. The

plaintiffs argued that these claims fell within the "personal

dispute exception" contained in Del. Code Ann. tit. 19,

§ 2301(15), but the district court disagreed. The court

wrote:

[T]here is no evidence of a pre-existing private affair or

dispute between plaintiff and any of her co-workers. To

the contrary, the record is replete with evidence that

any alleged misconduct occurred solely as a result of

the tortfeasor-employees' relationship with the plaintiff

at work. . . . [T]he tortfeasors' actions were related to

the duties of their jobs; the duties of the tortfeasors

required them to work together or to be in close

proximity or to communicate with the plaintiff; the

incidents were stimulated by duties, assignments, or

conditions of work; and the incidents resulted from the

fact that plaintiff was an employee of this particular

employer. Accordingly, the facts of record clearly

indicate that the alleged incidents arose out of the

plaintiffs' work relationship with the tortfeasor-

employees as opposed to any affair or personal

relationship originating outside the workplace.

6/4/93 Dist. Op. at 11.

On appeal, the plaintiffs argue that the "personal dispute

exception" does not apply when an employee sexually

harasses a co-worker for purely personal reasons. The

plaintiffs contend that the record bears "no evidence as to

why Ms. Konstantopoulos' co-workers . . . assaulted her"

and that "[o]ne definite possibility was that they were

motivated by personal bias against Ms. Konstantopoulos as

a woman." Appellant's Br. at 49. Accordingly, the plaintiffs

maintain, summary judgment on the state-law claims was

improper.

23

Because we found no decision of the Supreme Court of

Delaware that definitively addressed the state-law issues

raised in this appeal, we certified two questions of state law

to that court pursuant to Article IV, Section 11(9) of the

Delaware Constitution and Delaware Supreme court Rule

41.11 The Delaware Supreme Court accepted certification

and provided responses that, in our view, require

affirmance of the district court's decision.

Our certification included the following query:

Are an employee's claims against her employer for

intentional infliction of emotional distress and sexual

assault and battery caused by acts of sexual

harassment performed by co-employees arising out of

and in the course of employment, and not based on

any events occurring outside the course of

employment, barred by the Delaware Workmen's

Compensation Act, Del. Code Ann. Tit. 19, § 2301 et

seq. (1985), or may they be included in the exception

to the Act found at Del. Code Ann. Tit. 19

§ 2301(15)(b)?

In response, the Delaware Supreme Court concluded that

under the Act, "an employee's claim against her employer

for personal injuries sustained during the course of

employment, even if the offending conduct was of a sexual

nature, is limited to the compensation provided by the Act."

_________________________________________________________________

11. The certified questions were:

(1) Are an employee's claims against her employer for intentional

infliction of emotional distress and sexual assault and battery

caused by acts of sexual harassment performed by co-employees

arising out of and in the course of employment, and not based on

any events occurring outside the course of employment, barred by

the Delaware Workmen's Compensation Act, Del. Code Ann. Tit. 19,

§ 2301 et seq. (1985), or may they be included in the exception to

the Act found at Del. Code Ann. Tit. 19 § 2301(15(b)? Does the

applicability of this exception depend in whole or in part on the

subjective intent of the employee or employees who engage in the

harassment?

(2) If these claims are included in the exception found at Del. Code

Ann. tit. 19 § 2301(15)(b), may the employer be held liable based on

the doctrine of respondeat superior?

24

Konstantopoulos v. Westvaco Corp., 1996 WL 580354 (Del.

Supr. Oct. 2, 1996) at 1. The court went on to conclude

that the "personal dispute exception" contained in Del.

Code Ann. tit. 19, § 2301(15)(b) does not apply under the

facts set out in the certified question. Konstantopoulos,

1996 WL 580354 at 2. The court reasoned that the

"personal dispute exception" is "restricted to an injury that

is caused by conduct with origins outside of the work

place." Id. Since our certified question referred to conduct

arising "out of and in the course of employment" and "not

based on any event occurring outside of the workplace," the

court concluded that "[t]his type of conduct clearly does not

fall within the exclusion provided for an act `. . . not

directed against an employee as an employee or because of

the employee's employment.' " Id. (quoting Del. Code Ann.

tit. 19, § 2301(15)(b) (emphasis added in Del. Sup. Ct. Op.).

The court further observed that its interpretation of the act

was compatible with its purpose and that "[i]t would not be

appropriate for [the court] to create a new exception . . . for

sexual harassment claims." Id. at 3. In view of the Delaware

Supreme Court's responses, it is apparent that the district

court's disposition of the plaintiffs' state-law claims must

be affirmed.

For the reasons explained above, we affirm the decision

of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25