Weston v. Pennsylvania

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

5-22-2001

Weston v. Pennsylvania

Precedential or Non-Precedential:

Docket 99-1608

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Filed May 22, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1608

MICHAEL A. WESTON; DEBORAH WESTON, H/W,

Appellants,

v.

COMMONWEALTH OF PENNSYLVANIA d/b/a

DEPARTMENT OF CORRECTIONS; STA TE

CORRECTIONAL INSTITUTION AT GRATERFORD;

DOLORES MERITHEW.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cv-03899)

District Judge: The Honorable James M. Kelly

U.S. Magistrate Judge: The Honorable Thomas J. Rueter

ARGUED: September 13, 2000

Before: BECKER, Chief Judge, NYGAARD, and AMBRO,

Circuit Judges.

(Filed: May 22, 2001)

Thomas M. Holland, Esq.

Jeffrey Campolongo, Esq. (Argued)

1522 Locust Street

Grace Hall

Philadelphia, PA 19102

Counsel for Appellants

Randall J. Henzes, Esq. (Argued)

Office of Attorney General

of Pennsylvania

21 South 12th Street, 3rd Floor

Philadelphia, PA 19107

Counsel for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Michael Weston filed a sexual harassment civil

action against his employer, the Pennsylvania Department

of Corrections ("PDOC"), and Dolor es Merithew, a co-

worker. Weston alleged violations of T itle VII, the

Pennsylvania Human Relations Act ("PHRA"), and

Pennsylvania common law. Weston's Title VII claim was

premised on a hostile work environment theory.

Specifically, Weston asserted that he was subjected to a

hostile work environment as a result of the PDOC's failure

to discipline Merithew after she had physically touched

Weston on two occasions, and as a consequence of the

comments, jokes and jibes made by employees and inmates

who had learned of the incidents. In addition, Weston

alleged that, after he complained to the PDOC about this

harassment, the PDOC retaliated against him by

reprimanding him and transferring him to a less desirable

position.

The District Court dismissed Weston's T itle VII claim for

"hostile work environment" sexual harassment as well as

his state common law claims against the PDOC for failure

to state a claim. The District Court granted summary

judgment to the PDOC on Weston's retaliation claim. After

2

a bench trial, the District Court entered judgment in favor

of Weston and against Merithew on the r emaining state law

claims. Weston timely appealed. We have jurisdiction

pursuant to 28 U.S.C. S 1291.

In this appeal, Weston challenges the District Court's

disposition of both his hostile work environment claim and

his retaliation claim. With respect to the hostile work

environment claim, Weston asserts that it was error for the

court to dismiss for failure to state a claim, as his

complaint's allegations sufficed to make out a hostile work

environment claim, particularly in light of the liberal notice

pleading requirements contained in FED. R. CIV. P. 8. We

decide that Weston's allegations concer ning the PDOC's

response to the two incidents of physical touching were not

adequate to state a Title VII hostile work environment

claim, and we affirm the District Court's dismissal of that

portion of Weston's complaint. However , we also conclude

that Weston's allegations as to a hostile environment

created as a result of the comments, jokes, and jibes made

by co-workers and managers did meet the federal rules'

liberal pleading requirements, and we ther efore reverse the

District Court's dismissal of that component of W eston's

hostile work environment claim, and remand for further

discovery and proceedings. Finally, in r egard to Weston's

averments as to a hostile environment cr eated as a result

of verbal harassment on the part of inmates, while we agree

with the District Court that those allegations, as they

currently stand, do not suffice to state a T itle VII claim, we

reverse the court's dismissal, and remand with instructions

to grant Weston a specified period of time in which to

amend (and amplify) that portion of his complaint.

With respect to the retaliation claim, Weston avers that it

was error for the court to grant summary judgment,

because he succeeded in creating a genuine issue as to the

material fact that the PDOC took adverse action against

him, in the form of two written reprimands and two

suspensions without pay, as a result of his harassment

complaints. We conclude that, under the cir cumstances

present in Weston's case, the written r eprimands do not

constitute adverse employment actions. We further decide

that Weston failed to present sufficient evidence to establish

3

the requisite causal connection between the two

suspensions and his complaints. Accordingly, we affirm the

District Court's summary judgment grant on the r etaliation

claim.

I.

A. Factual Background

Weston is a corrections officer at the State Correctional

Institution at Graterford, Pennsylvania. At the time of this

action, he worked in the Food Services Department as a

trainer. His duties included supervising inmates who

worked in the prison's kitchen. Merithew is also a

corrections officer and held a similar position in the prison

kitchen. Although testimony indicates that W eston and

Merithew did not have an amicable working relationship, on

February 11, 1997, Merithew massaged Weston's back in

the presence of inmates. Weston found this physical contact

offensive and told Merithew to stop. Merithew laughed in

response, but apparently discontinued the activity.

Three days later, Weston tor e a visible hole in the seat of

his pants. While his back was turned, Merithew placed her

finger in the hole, touching his buttocks. As with the

previous incident, this act occurred in the presence of

inmates. Weston expressed his anger to Merithew and told

her to leave him alone.

Weston complained to his supervisor about Merithew's

actions, and she was given a written reprimand. Weston

claimed that, as a result of Merithew's actions, he was

subjected to offensive comments, jibes, and jokes made by

co-workers, managers and inmates. According to Weston,

the PDOC did not act in response to his complaints. In fact,

Weston was reprimanded by the PDOC and transferred to a

less desirable position.

B. Procedural Background

Weston sued both the PDOC and Merithew in the District

Court. Weston alleged that the PDOC violated Title VII and

the PHRA by failing to properly discipline Merithew after

4

Weston's complaints and that Weston was subjected to

repeated jokes, jibes, and offensive comments by co-

workers, managers and inmates. He also claimed that the

PDOC retaliated against him for complaining about

Merithew's conduct by reprimanding him and transferring

him to a less desirable position.

The PDOC first moved to dismiss Weston's complaint for

failure to state a claim upon which relief may be granted.1

See FED. R. CIV. P . 12(b)(6). On September 29, 1998, the

District Court granted the motion to dismiss, in part.

Specifically, the court determined that W eston's complaint

failed to allege facts that showed the PDOC was negligent in

disciplining Merithew, and it held that Weston failed to

establish the PDOC's liability under respondeat superior.

Further, the District Court found that the jokes and

offensive comments Weston experienced after the incidents

did not constitute a hostile working environment. However,

the District Court denied the PDOC's motion to dismiss

Weston's retaliation claim.

After limited discovery, the PDOC moved for summary

judgment on the remaining retaliation claim. Although

Weston may have suffered adverse employment actions, the

District Court held that he had not shown a causal

connection between these actions and his complaints about

Merithew's conduct. Even if he had established such a

connection, the District Court suggested that the outcome

would have been the same because the PDOC of fered a

nondiscriminatory reason for its actions.2

_________________________________________________________________

1. In his response to the PDOC's motion to dismiss, Weston conceded

that his state law claims for assault, battery, intentional infliction of

emotional distress, and negligent infliction of emotion distress were

barred by sovereign immunity. Weston also abandoned his charge that

his transfer to a less desirable position was a r etaliatory action by the

PDOC.

2. Weston also sued Merithew individually. The District Court held a

bench trial on June 1, 1999, and found that Merithew had committed a

battery under state law. On June 3, 1999, the District Court entered

judgment in favor of Weston and against Merithew and awarded

compensatory damages in the amount of $1250.00.

5

II. Motion to Dismiss - The Hostile Work Environment

Claims

We exercise plenary review when examining a motion to

dismiss pursuant to Federal Rule of Civil Pr ocedure

12(b)(6). Lorenz v. CSX Corp., 1 F .3d 1406, 1411 (3d Cir.

1993). We accept the allegations of the complaint as true

and draw all reasonable factual inferences in favor of the

plaintiff. Id. We will affir m a dismissal only if it appears

certain that a plaintiff will be unable to support his claim.

Wisniewski v. Johns-Manville Corp., 759 F .2d 271, 273 (3d

Cir. 1985). Our review of Weston's complaint reveals two

separate bases for hostile work environment sexual

harassment -- one concerning the conduct and actions of

the PDOC and Dolores Merithew and one concer ning

unidentified "coworkers, managers and inmates."

Complaint, P 18.

A. Hostile Work Environment Claims

Title VII of the Civil Rights Act of 1964 and the

Pennsylvania Human Relations Act make it unlawful for an

employer to "discriminate against any individual with

respect to his compensation, terms, conditions or privileges

of employment because of such individual's race, color,

religion, sex or national origin." 42 U.S.C.S 2000e-2(a)(1).3

Hostile work environment harassment occurs when

unwelcome sexual conduct unreasonably inter feres with a

person's performance or creates an intimidating, hostile, or

offensive working environment. Meritor Savs. Bank FSB v.

Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404 (1986)

(quoting 29 C.F.R. S 1604.11(a)(3)). In order to be

actionable, the harassment must be so severe or pervasive

that it alters the conditions of the victim's employment and

creates an abusive environment. Id. at 67, 106 S.Ct. at

_________________________________________________________________

3. The proper analysis under Title VII and the Pennsylvania Human

Relations Act is identical, as Pennsylvania courts have construed the

protections of the two acts interchangeably. See, e.g., Smith v. Pathmark

Stores, Inc., No. 97-1561, 1998 WL 309916, at *3 (E.D. Pa. June 11,

1998) (interpreting the two statutes concurr ently in a sexual harassment

case); Clark v. Commonwealth of Pennsylvania, 885 F.Supp. 694, 714

(E.D. Pa. 1995) (same in racial discrimination cases).

6

2405; see also Spain v. Gallegos, 26 F .3d 439, 446-47 (3d

Cir. 1994).

In Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367

(1993), the Supreme Court clarified the elements of a

discrimination claim resulting from a hostile work

environment. In order to fall within the purview of Title VII,

the conduct in question must be severe and pervasive

enough to create an "objectively hostile or abusive work

environment -- an environment that a r easonable person

would find hostile -- and an environment the victim-

employee subjectively perceives as abusive or hostile." Id. at

21-22, 114 S.Ct. at 370-71. In determining whether an

environment is hostile or abusive, we must look at

numerous factors, including "the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere of fensive utterance;

whether it unreasonably interferes with an employee's work

performance." Id. at 23, 114 S.Ct. at 371. The Supreme

Court recently reaffirmed Harris' "severe and pervasive" test

in Faragher v. City of Boca Raton, 524 U.S. 775, 783, 119

S.Ct. 2275, 2283 (1998), and Burlington Indus., Inc. v.

Ellerth, 524 U.S. 724, 732, 118 S.Ct. 2257, 2265 (1998).

After the Supreme Court's Faragher/Ellerth decisions,

employers must do more that merely take corrective action

to remedy a hostile work environment situation. Employers

also have an affirmative duty to prevent sexual harassment

by supervisors. See Faragher, 524 U.S. at 793, 118 S.Ct. at

2293; Williams v. General Motors Corp., 187 F.3d 553, 561

(6th Cir. 1999). Although the Supreme Court has not

addressed hostile work environment claims arising from the

actions of a co-worker, we have developed a framework for

evaluating such a claim:

Five constituents must converge to bring a successful

claim for a sexually hostile work environment under

Title VII: (1) the employee suffer ed intentional

discrimination because of their sex, (2) the

discrimination 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.

7

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

Cir. 1990) (footnote and citations omitted); accord Kunin v.

Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999).

B. Hostile Work Environment Harassment and Merithew's

Actions

In dismissing his complaint, the District Court

determined that Weston could not establish a prima facie

hostile work environment claim based on the PDOC's

failure to adequately reprimand Merithew. It concluded that

the alleged discrimination was not pervasive, r egular, or

objectively detrimental, and that respondeat superior

liability did not apply.

Weston alleged in his complaint that the PDOC was liable

for Merithew's harassment because it failed to pr event her

from assaulting him and did not adequately discipline her.

This argument has no merit. Our rule "envisions prompt

remedial action when the hostile environment is

discovered." Bouton v. BMW of N. America, Inc., 29 F.3d

103, 110 (3d Cir. 1994). In other wor ds, when the source of

the alleged harassment is a co-worker, a plaintiff must

demonstrate that the employer failed to provide a

reasonable avenue for complaint, or, if the employer was

aware of the alleged harassment, that it failed to take

appropriate remedial action. Kunin, 175 F.3d at 293 (citing

Andrews, 895 F.2d at 1486 (liability exists where the

defendant knew or should have known of the harassment

and failed to take prompt remedial action)); see also 29

C.F.R. S 1604.11(d)(1999) (employer is liable for co-worker

harassment if it knows or should have known of the

conduct, unless it can show that it took immediate and

appropriate corrective action.); Kracunas v. Iona Coll., 119

F.3d 80, 89 (2d Cir. 1997).

Under our jurisprudence, the PDOC's failure to prevent

an act of co-worker harassment, in and of itself, does not

end the hostile environment inquiry. After W eston officially

complained about Merithew's conduct, she received a

written reprimand for violating the PDOC's policies against

sexual harassment. Weston does not allege that the

offensive conduct continued after the r eprimand. We have

instructed that "an effective grievance pr ocedure -- one

8

that is known to the victim and that timely stops the

harassment -- shields the employer from T itle VII liability

for hostile environment." Bouton, 29 F.3d at 110. Moreover,

when an employer's response stops the harassment, there

can be no employer liability under Title VII. Kunin, 175

F.3d at 294 ("By definition, ther e is no negligence if the

[sexual harassment grievance] procedur e is effective.")

(citing Bouton, 29 F.3d at 110). The PDOC's grievance

procedure was obviously known to W eston (he filed a

complaint) and, by his own admission, it was ef fective.

Liability cannot be imputed to the PDOC for Merithew's

conduct or for its alleged failure to adequately reprimand

her.

C. Hostile Work Environment and the Comments, Jokes,

and Jibes of Co-workers, Managers and Inmates

Weston's complaint averred that the PDOC should be

held liable for the comments, jokes, and jibes of inmates. In

Slayton v. Ohio Dept. of Youth Serv., 206 F.3d 669 (6th Cir.

2000), the Court of Appeals for the Sixth Cir cuit determined

that, without more, objectionable conduct by prison

inmates cannot, in and of itself, be a sufficient predicate for

a hostile work environment claim. Id. W e agree that

"prisoners, by definition, have breached prevailing societal

norms in fundamentally corrosive ways. By choosing to

work in a prison, corrections personnel have acknowledged

and accepted the probability that they will face

inappropriate and socially deviant behavior ." Id. (citations

omitted).

However, this is not an absolute rule. Prison liability for

inmate conduct may indeed apply when, for example, the

institution fails to take appropriate steps to remedy or

prevent illegal inmate behavior. See id.; Waymire v. Harris

County, Tex., 86 F.3d 424, 428-29 (5th Cir. 1996) (holding

that because prison took prompt remedial action, jailer did

not establish a hostile environment wher e a fellow jailer

circulated sexually offensive inmate drawing). Moreover, we

can find no authority which suggests that ther e is an

absolute bar to Title VII liability when prison personnel

encourage or instigate illegal inmate behavior .

Weston's complaint indicates that he was subjected to

comments, jokes, and jibes by unspecified inmates.

9

Complaint at P 18. Absent further amplification -- for

instance that prison officials encouraged the inmate's

comments, or that prison officials knew of the harassing

conduct but failed to remedy it -- this mer e allegation is

insufficient to state a Title VII claim. However, Weston

should have an opportunity to amend his complaint so as

to make allegations, if possible, as to prison officials'

instigation and/or knowledge of these events. W e believe

the District Court erred in not providing Weston an

opportunity to amend his complaint in this fashion. See

FED. R. CIV. P. 15(a); Shane v. Fauver, 213 F.3d 113 (3d Cir.

2000); Borelli v. City of Reading, 532 F.2d 950 (3d Cir.

1976). We reverse the District Court and remand with

instructions to grant Weston a specified period of time in

which to amend the complaint.

Weston's second basis for employer liability is more

complex. In his complaint, Weston alleges that he was

subjected to "sexually offensive comments, jokes and jibes

by fellow PDOC employees, managers and inmates."

Complaint at P 18. On appeal, he has ar gued that the

PDOC is liable for the jokes of its managers and W eston's

co-workers because of the PDOC's negligent r esponse to

these comments. His central argument is that the jokes,

jibes, and comments continued unabated, ther eby creating

a hostile work environment.

While the Supreme Court has stated that T itle VII grants

employees "the right to work in an environment free from

discriminatory intimidation, ridicule and insult," Meritor

Savs. Bank, 477 U.S. at 65, 106 S.Ct. at 2405, it has

likewise emphasized that not all workplace conduct that

has sexual overtones can be characterized as forbidden

harassment. See id. at 67, 106 S.Ct. at 2405-06. The

alleged harassment must affect a "ter m, condition or

privilege" of employment in order to fall within Title VII's

purview. Id. Moreover, the Supr eme Court has instructed

that a plaintiff must allege that the conduct at issue was

not merely tinged with offensive sexual connotations, but

actually constituted gender discrimination. See Oncale v.

Sundowner Offshore Servs. Inc., 523 U.S. 75, 79, 118 S.Ct.

998, 1002 (1998). The mere utterance of an epithet, joke, or

inappropriate taunt that may cause offense does not

10

sufficiently affect the conditions of employment to implicate

Title VII liability. See Schwapp v. T own of Avon, 118 F.3d

106, 110 (2d Cir. 1997).

Weston's complaint includes little detail about the

content of the offensive comments, jokes, and jibes.

Instead, it merely claims that they wer e the result of

Merithew's actions, and were made in retaliation for his

filing of a grievance against her. See Complaint at P 18. By

his own admission, the comments, jokes, and jibes were

not directed at his gender. In fact, W eston's complaint fails

to allege that he was targeted because of his gender. See

Oncale, 523 U.S. at 79, 118 S.Ct. at 1002. Furthermore,

the complaint makes no allegation that the conduct altered

the conditions of Weston's employment or cr eated an

abusive environment in which he had to work. See Meritor

Savs. Bank, 477 U.S. at 67, 106 S.Ct. at 2505-06 (quoting

Henson v. City of Dundee, 682 F.2d 897, 9040 (11th Cir.

1982)).

However, at oral argument, Weston's counsel argued that

his allegations were sufficient to survive a motion to

dismiss based on our liberal notice pleading r equirements.

See FED. R. CIV. P . 8. Generally, in federal civil cases, a

claimant does not have to set out in detail the facts upon

which a claim is based, but must merely pr ovide a

statement sufficient to put the opposing party on notice of

the claim. FED. R. CIV. P. 8; Remick v. Manfredy, 238 F.3d

248, 264 (3d Cir. 2001); Foulk v. Donjon Marine Co., 144

F.3d 252 (3d Cir. 1998). In Conley v. Gibson, 355 U.S. 41,

47-48, 78 S.Ct. 99, 103 (1957), the Supreme Court set out

the proper role of pleadings:

The Federal Rules of Civil Procedure do not require a

claimant to set out in detail the facts upon which he

bases his claim. To the contrary, all the Rules require

is a short and plain statement of the claim that will

give the defendant fair notice of what the plaintif f's

claim is and the grounds upon which it r ests. Such

simplified "notice pleading" is made possible by the

liberal opportunity for discovery and the other pr etrial

procedures established by the Rules to disclose more

precisely the basis of both claim and defense and to

define more narrowly the disputed facts and issues.

11

The Federal Rules reject the approach that pleading is

a game of skill in which one misstep by counsel may be

decisive to the outcome and accept the principle that

the purpose of pleading is to facilitate a pr oper decision

on the merits.

Id. (citations omitted); see also Universe Tankships, Inc. v.

United States, 528 F.2d 73, 75 (3d Cir . 1975) (notice

pleading requires a party only to "disclose adequate

information as the basis of his claim for r elief."); Quinones

v. United States, 492 F.2d 1269, 1273 (3d Cir. 1974) ("[A]

complaint should not be dismissed for failur e to state a

claim unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief").

Dismissal under FED. R. CIV. P. 12(b)(6) is inappropriate

because Weston's complaint states a claim for hostile work

environment and therefore provides adequate notice to the

defense. Although Weston's allegations ar e not strong, they

are nonetheless sufficient to meet our lenient standards of

notice pleading. See, e.g., Brokaw v. Mercer County, 235

F.3d 1000, 1014 (7th Cir. 2000). Complaints "need not

plead law or match facts to every element of a legal theory."

Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)

(quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.

1998)); see also Powell v. Ridge, 189 F .3d 387, 394 (3d Cir.

1999); Caribbean Broad. Sys., Ltd. v. Cable & Wireless

P.L.C., 148 F.3d 1080, 1086 (D.C. Cir. 1998) ("[A] plaintiff

need not allege all the facts necessary to pr ove its claim.");

Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C.

Cir. 1996) ("A complaint . . . need not allege all that a

plaintiff must eventually prove . . ."); Gooding v. Warner-

Lambert Co., 744 F.2d 354, 357-59 (3d Cir . 1984)

(eschewing "highly technical pleading rules, which only

serve to trap the unwary practitioner," in favor of notice

pleading;) accord Sinclair v. Kleindienst , 711 F.2d 291, 293

(D.C. Cir. 1983) ("The Federal Rules of Civil Procedure do

not require a claimant to set out the pr ecise facts on which

the claim is based . . . . `Notice pleading' is sufficient.");

Williams v. Washington Metro. Ar ea Transit Auth., 721 F.2d

1412, 1418 n.12 (D.C. Cir. 1983); Fouche v. Jekyll Island-

State Park Auth., 713 F.2d 1518, 1525 (11th Cir. 1983).

12

Discrimination and other civil rights claims ar e clearly

subject to notice pleading. Conley involved a class action by

African-American railroad clerks who alleged that their

union had breached its duty of fair repr esentation and

discriminated against them in violation of the Railway

Labor Act, 45 U.S.C. S 151. In reversing the Rule 12(b)(6)

dismissal of the complaint, the Supreme Court r ejected

defendant's argument that dismissal was pr oper because

"the complaint failed to set forth specific facts to support its

general allegations of discrimination." Conley, 355 U.S. at

47, 78 S.Ct. at 99. Thirty-five years later , in Leatherman v.

Tarrant County, the Court reaffir med Conley and rejected

the suggestion that a " `heightened pleading standard' --

more stringent than the usual pleading r equirements of

Rule 8(a)--" should apply in civil rights cases. 507 U.S. at

164, 167-68, 113 S.Ct. at 1160-62.

Therefore, although we question the merits of Weston's

claim for hostile work environment due to the comments,

jokes, and jibes of his co-workers and managers, he has

satisfied the extremely lenient requir ement of notice

pleading. We will reverse the District Court and remand

that portion of the case with instructions to per mit further

discovery.

We note that, at this stage of the litigation, Weston does

not present the most compelling of Title VII hostile work

environment claims. Were this an appeal from a grant of

summary judgment, we would be hard-pressed to reverse a

disposition in PDOC's favor. However, this is an appeal from

a 12(b)(6) dismissal and, although we consider the question

to be an extremely close one, we conclude that Weston's

allegations of a hostile work environment cr eated by the

remarks of co-workers and managers suffices to state a

Title VII claim.

III. Summary Judgment - The Retaliation Claim

To establish a prima facie case of r etaliation, a plaintiff

must show that: (1) he or she engaged in a pr otected

employee activity; (2) the employer took an adverse

employment action after or contemporaneous with the

protected activity; and (3) a causal link exists between the

13

protected activity and the adverse action. See Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 297 (3d Cir. 2000);

see also, e.g., Kachmar v. Sungard Data Sys., Inc., 109 F.3d

173, 177 (3d Cir. 1997); Krouse v. American Sterilized Co.,

126 F.3d 494, 500 (3d Cir. 1997) (describing the third

requirement as a "causal connection"); Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989).

It is undisputed that Weston's sexual harassment

complaint to his supervisor on February 15, 1997, and his

similar inquiries on February 26, March 26, and April 25

were protected activities. See DiIenno v. Goodwill Indus. of

Mid-Eastern Pennsylvania, 162 F.3d 235, 236 (3d Cir.

1998). Moreover, his filing of a complaint with the Equal

Opportunity Employment Commission on July 16, 1997,

was also protected. See Robinson v. City of Pittsburgh, 120

F.3d 1286, 1300 (3d Cir. 1997).

The District Court identified four adverse employment

actions, the second element of a prima facie case. First,

Weston suffered two suspensions without pay in June and

August of 1998. It is not disputed that these suspensions

were adverse employment actions. However , the parties

disagree on whether the written reprimands on March 3,

1997, and May 15, 1997, can be similarly characterized.

We have specifically found oral reprimands not sufficiently

adverse to qualify under the statute. See Robinson, 120

F.3d at 1301 (holding that unsubstantiated oral reprimands

and unnecessary derogatory comments wer e not adverse

employment actions in a retaliatory conduct case). The

District Court, however, found Weston's written reprimands

distinguishable from oral reprimands and therefore held

that they were adverse employment actions. In the

circumstances of this case, we disagree.

A. The Written Reprimands

Title VII specifically prohibits action which would "deprive

or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee." 42 U.S.C. S 2000e-2(a). The Supr eme Court has

defined a tangible, adverse employment action as a

"significant change in employment status, such as hiring,

14

firing, failing to promote, reassignment, or a decision

causing a significant change in benefits." Burlington Indus.

Inc. v. Ellerth, 524 U.S. 742, 749, 118 S.Ct. 2257, 2268

(1998). In the context of this case, Weston must show,

among other things, that these written reprimands affected

the terms or conditions of his employment.

The District Court believed that Weston satisfied this

burden because the reprimands in question were written

instead of oral. Additionally, the District Court stressed

that the reprimands were placed in W eston's personnel file

for a period of six months.4 The District Court found that

these reprimands rose to a level serious enough to trigger

employer liability because of their "presumed" effect on

compensation, terms, conditions or privileges of Weston's

employment.

We conclude, however, that Weston failed to establish

how these two reprimands effect a material change in the

terms or conditions of his employment. W e cannot,

therefore, characterize them as adverse employment

actions. Weston's own deposition testimony indicates that

he was not demoted in title, did not have his work schedule

changed, was not reassigned to a differ ent position or

location in the prison, did not have his hours or work

changed or altered in any way, and that he was not denied

any pay raise or promotion as a result of these reprimands.

Additionally, the reprimands were of a temporary nature.

Because they were not permanently affixed to Weston's

employment file, we cannot see how they changed or

altered his employment status in any way. Mor eover,

Weston suffered no reduction in pay, reassignment, firing,

or any similar employment action. Hence, we focus on

whether there was a causal connection between W eston's

protected activity and the two suspensions without pay that

he received on June 12, 1998 and July 31, 1998. We note

that the burden of establishing such a connection falls

upon Weston. See Farrell, 206 F.3d at 279.

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4. At oral argument, counsel for the PDOC confirmed this practice and

additionally noted that although a written r eprimand may remain in a

correction officer's employment file longer than six months, a collective

bargaining agreement prohibits the PDOC from using or making

reference to any such reprimand older than six months.

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B. Causation

On appeal, Weston presents several ar guments that there

was sufficient evidence to establish a causal connection

between the filing of his complaints and his two

suspensions. Initially, he argues that the timing of these

events suggests a connection between his complaints and

the adverse employment actions taken against him. W ith

one exception, we have never held that timing alone can be

sufficient to establish causation.5 We conclude that the

timing in this case is not unusual enough to become a

causal link.6

The one-day and three-day suspensions, which W eston

received in the summer of 1998, were mor e than a year

distant from his protected activities. Absent other evidence,

we cannot infer causation. See Krouse, 126 F.3d at 504 (a

nineteen month interlude between the protected activity

and the alleged retaliation, without any other evidence of

discriminatory animus in the interim, was insufficient as a

matter of law to support an inference of causation).

Next, Weston argues that the District Court erred by not

considering a "pattern of antagonism," which he believes

was evident throughout the entire course of events. Weston

relies on our opinion in Kachmar, wher e we held it was

improper for the District Court not to consider evidence

establishing such a pattern. 109 F.3d at 177. Kachmar is

not relevant to Weston's claims. In Kachmar, retaliatory

termination occurred one year after the protected action.

See id. at 177. Throughout the intervening year however,

there were numerous circumstances that suggested

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5. In Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), we found

that

an employee's dismissal two days after the company learned of his EEOC

complaint was sufficiently persuasive evidence to satisfy the causation

element of a prima facie case. Our holding in Jalil, however, is limited

to

the unusually suggestive facts of that case, which are not present in this

appeal.

6. We need not consider Weston's EEOC complaint. He does not argue

that the PDOC was aware of this filing. See Jones v. School Dist. of

Philadelphia, 198 F.3d 403, 415 (3d Cir . 1999) (requiring that the party

responsible for the adverse conduct be awar e of the protected activity

before causation can be inferred).

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termination might occur, including statements that the

plaintiff was off the management track and that she should

start looking for another job. See id. at 178. We concluded

that the cumulative effect revealed a pattern of antagonism,

which overcame any doubts raised by the temporal

separation of events. Thus, we held that causation had

been established. Unlike Kachmar, the alleged pattern of

antagonism in this case did not portend any futur e

retaliation. Instead, the adverse employment actions were

discrete responses to particular occurr ences. Whereas a

pattern of antagonism was clear on the facts in Kachmar,

there is no evidence in this case that the PDOC's actions

were related.

Weston also argues that a causal connection can be

established by the inconsistent explanations the PDOC

provided for its reprimands. Inconsistent explanations can

be an alternative method for establishing a causal link

between a protected activity and adverse employment

actions. See Waddell v. Small Tube Pr ods., Inc., 799 F.2d

73, 77 (3d Cir. 1986). Weston contends that the PDOC gave

inconsistent accounts of whether other kitchen employees

had attendance records similar to W eston's. His argument

is unclear. Assuming arguendo that an inconsistency exists,

it still does not establish a causal connection because

Weston's two adverse employment actions wer e unrelated to

his attendance record.

Weston argues that the District Court erred by not

considering whether the PDOC's proffer ed explanations for

the adverse employment actions were a pr etext for

retaliation. Typically, pretext evidence is considered after a

prima face case is established and the defendant

has produced non-discriminatory or non-r etaliatory

explanations for that behavior. See Delli Santi v. CNA Ins.

Co. 88 F.3d 192, 199 (3d Cir. 1996) (noting that the familiar

McDonnell-Douglas burden shifting dichotomy applies to

retaliation claims).

Weston is correct that pretext evidence can be relevant to

causation. See Farrell, 206 F .3d at 287. As such, he argues

that his two 1998 suspensions -- justified by the PDOC as

discipline for attendance problems -- wer e imposed in

retaliation for his sexual harassment complaint. The

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PDOC's explanations, the argument continues, were

pretextual. Such pretext, he maintains, evidences the

PDOC's motivation, which is directly relevant to causation.

In support of this position, he claims that other similarly

situated officers were not disciplined.

Weston's argument that the "attendance" justifications for

his suspensions were pretextual fails. First, Weston does

not dispute that his poor attendance was a valid r eason for

the discipline he received. He merely ar gues that he was

treated unfairly -- that he was punished while other

culinary service officers with the same attendance problems

were not. However, as the District Court noted, there were

at least four employees dismissed for attendance pr oblems

during the same period of time. In addition, the decisions

to suspend Weston were not made by his immediate

supervisor to whom he directed his sexual harassment

complaints. Although Weston's supervisor did play a role in

the suspensions, the suspensions were ultimately decided

upon by a panel of three hearing officers. 7 Thus, retaliatory

animus, whether for purposes of establishing causation or

pretext, cannot be ascribed to the hearing officers who

made the suspension determination. See Jones v. School

Dist. of Philadelphia, 198 F.3d 403, 415 (3d Cir. 1999)

(affirming a grant of summary judgment in a retaliation

claim on the basis that the responsible persons had no

information about the underlying protected discrimination

claim).

Weston simply cannot create a genuine issue of material

fact that his suspensions were imposed in r etaliation for his

sexual harassment claims. He cannot establish causation

or pretext.

IV. Conclusion

In summation, we will reverse that portion of the District

Court's dismissal of Weston's complaint as to the

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7. Neither party addresses whether those hearing officers were aware of

Weston's sexual harassment complaints. However, the PDOC does

represent that the hearing officers wer e unaware of Weston's EEOC

filing.

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allegations that the comments, jokes, and jibes of his co-

workers and managers created a hostile work environment

for which the PDOC would be liable, and we r emand the

cause for further discovery and proceedings. W ith regard to

that portion of Weston's complaint containing allegations

that comments, jokes, and jibes of inmates cr eated a hostile

work environment, we reverse the District Court and

remand with instructions to grant Weston a specified period

of time in which to amend the complaint. We affirm the

District Court's Fed. R. Civ. P. 12(b)(6) dismissal of

Weston's complaint against the PDOC in all other respects.

We likewise affirm the District Court's grant of summary

judgment in favor of the PDOC on Weston's r etaliation

claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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